Vol. 84 Monday, No. 130 July 8, 2019

Pages 32255–32606

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 84, No. 130

Monday, July 8, 2019

Agriculture Department Education Department See Forest Service See National Assessment Governing Board See National Institute of Food and Agriculture NOTICES See Rural Utilities Service Applications for New Awards: NOTICES Gaining Early Awareness and Readiness for Agency Information Collection Activities; Proposals, Undergraduate Programs (State Grants), 32431–32437 Submissions, and Approvals, 32401 Energy Department Bureau of Consumer Financial Protection See Federal Energy Regulatory Commission NOTICES PROPOSED RULES Fair Lending Report of the Bureau of Consumer Financial Energy Conservation Program: Protection, June 2019, 32420–32429 Standards for Variable Refrigerant Flow Multi-Split Air Conditioners and Heat Pumps, 32328–32338 Civil Rights Commission NOTICES Application To Export Electric Energy: NOTICES ALEL Technologies LLC, 32445 Meetings: Charter Renewals: New York Advisory Committee, 32413 Advanced Scientific Computing Advisory Committee, Coast Guard 32445 Energy Efficiency Program for Industrial Equipment: RULES Petition of North Carolina Advanced Energy Corporation Anchorage Regulations: Efficiency Verification Services for Classification as a Passagassawakeag River, Belfast, ME, 32269–32271 Nationally Recognized Certification Program for Safety Zone: Electric Motors and Small Electric Motors, 32437– New Jersey Intracoastal Waterway, Atlantic City, NJ, 32445 32272–32274 Environmental Protection Agency Commerce Department RULES See Industry and Security Bureau Air Quality State Implementation Plans; Approvals and See International Trade Administration Promulgations: See National Oceanic and Atmospheric Administration Indiana; Redesignation of the Terre Haute Area to Attainment of the 2010 Sulfur Dioxide Standard, Commodity Futures Trading Commission 32317–32320 NOTICES Repeal of the Clean Power Plan; Emission Guidelines for Meetings; Sunshine Act, 32420 Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Consumer Product Safety Commission Guidelines Implementing Regulations, 32520–32584 PROPOSED RULES Tolerance Exemption: Safety Standard for Gates and Enclosures, 32346–32356 Acetic Acid Ethenyl Ester, Polymer With Ethene and Ethenol, 32320–32323 Copyright Office, Library of Congress PROPOSED RULES RULES Air Quality State Implementation Plans; Approvals and Designation of Music Licensing Collective and Digital Promulgations: Licensee Coordinator, 32274–32296 District of Columbia; Amendments to the Control of Emissions of Volatile Organic Compounds From Copyright Royalty Board Motor Vehicle and Mobile Equipment Non-Assembly RULES Line Coating Operations, 32356–32359 Procedures for Determination and Allocation of Assessment Montana; Revisions to Administrative Rules of Montana, To Fund Mechanical Licensing Collective and Other 32361–32363 Amendments Required by the Hatch-Goodlatte Music North Carolina: Air Quality, 32359–32361 Modernization Act, 32296–32317 Approval and Promulgation of State Plans for Designated NOTICES Facilities and Pollutants: Determination and Allocation of Initial Administrative Arizona; Control of Emissions From Existing Municipal Assessment To Fund Mechanical Licensing Collective, Solid Waste Landfills, 32363–32365 32475–32476 Pinal County Air Quality Control District; Control of Emissions From Existing Municipal Solid Waste Defense Department Landfills, 32365–32366 NOTICES Significant New Use Rules on Certain Chemical Substances, Agency Information Collection Activities; Proposals, 32366–32371 Submissions, and Approvals, 32429–32430 NOTICES Requests for Nominations: Privacy Act; Systems of Records, 32456–32460 Department of Defense Military Family Readiness Proposed CERCLA Cost Recovery Settlement: Council, 32429 PJP Landfill Superfund Site, Hudson County, NJ, 32456

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Federal Aviation Administration Federal Reserve System RULES NOTICES Airworthiness Directives: Formations of, Acquisitions by, and Mergers of Bank Airbus SAS Airplanes, 32257–32260 Holding Companies, 32462 Bombardier, Inc., Airplanes, 32255–32257, 32263–32268 Rockwell Collins, Inc. Flight Display System Application, Fish and Wildlife Service 32260–32263 PROPOSED RULES PROPOSED RULES Migratory Bird Hunting: Airworthiness Directives: Proposed Migratory Bird Hunting Regulations on Certain Airbus SAS Airplanes, 32338–32341 Federal Indian Reservations and Ceded Lands for the The Boeing Company Airplanes, 32341–32346 2019–20 Season, 32385–32400 NOTICES Finding of No Significant Impact/Record of Decision: Food and Drug Administration Adoption of the United States Marine Corps RULES Supplemental Environmental Analysis for the Guidance: Establishment of the Playas Temporary Military Compliance Policy for Certain Compounding of Oral Operating Area, 32511–32512 Oxitriptan (5-HTP) Drug Products for Patients With Tetrahydrobiopterin (BH4) Deficiency, 32268–32269 Federal Communications Commission NOTICES Forest Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 32460–32461 Environmental Impact Statements; Availability, etc.: Malheur National Forest, Blue Mountain and Prairie City Federal Election Commission Ranger Districts and Wallowa-Whitman National NOTICES Forest, Whitman Ranger District, Oregon; Austin Meetings; Sunshine Act, 32462 Project, 32401–32403 General Services Administration Federal Emergency Management Agency NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, National Flood Insurance Program: Submissions, and Approvals: Revisions to Methodology for Payments To Write Your General Services Administration Acquisition Regulation; Own Companies, 32371–32379 Modifications 552.238–81, 32462–32463

Federal Energy Regulatory Commission Health and Human Services Department NOTICES See Food and Drug Administration Agency Information Collection Activities; Proposals, See National Institutes of Health Submissions, and Approvals, 32447–32449 See Substance Abuse and Mental Health Services Application: Administration Pacific Gas and Electric Co; Nevada Irrigation District, NOTICES 32447 Meetings: Combined Filings, 32449–32450, 32452–32454 National Committee on Vital and Health Statistics, 32463 Environmental Impact Statements; Availability, etc.: Alaska Gasline Development Corp.; Alaska LNG Project, Homeland Security Department 32451–32452 See Coast Guard Initial Market-Based Rate Filings Including Requests for See Federal Emergency Management Agency Blanket Section 204 Authorizations: NOTICES Dougherty County Solar, LLC, 32450 Agency Information Collection Activities; Proposals, License Application: Submissions, and Approvals: Southern California Edison, 32455–32456 Support Anti-Terrorism by Fostering Effective Meetings: Technologies Act, 32466–32467 Managing Transmission Line Ratings; Technical Conference, 32450–32451 Housing and Urban Development Department Qualifying Conduit Hydropower Facility: NOTICES City of Beaverton, OR, 32446 Agency Information Collection Activities; Proposals, Request Under Blanket Authorization: Submissions, and Approvals: Transcontinental Gas Pipe Line Company, LLC, 32454– Generic Customer Satisfaction Surveys, 32469 32455 Sales of Reverse Mortgage Loans: HUD Vacant Loan Sales, 32467–32468 Federal Motor Carrier Safety Administration RULES Industry and Security Bureau North American Standard Out-of-Service Criteria; NOTICES Hazardous Materials Safety Permits; Incorporation by Export Privileges; Denials, 32413–32414 Reference, 32323–32326 PROPOSED RULES Interior Department Certification for Conducting Driver or Vehicle Inspections, See Fish and Wildlife Service Safety Audits, or Investigations, 32379–32385 See Land Management Bureau

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International Trade Administration National Science Foundation NOTICES NOTICES Request for Nominations: Meetings; Sunshine Act, 32476–32477 District Export Council, 32414–32415 Nuclear Regulatory Commission International Trade Commission PROPOSED RULES NOTICES Amendments to Material Control and Accounting Agency Information Collection Activities; Proposals, Regulations, 32327–32328 Submissions, and Approvals, 32472 NOTICES Investigations; Determinations, Modifications, and Rulings, Agency Information Collection Activities; Proposals, etc.: Submissions, and Approvals: Certain LED Lighting Devices, LED Power Supplies, and Security Acknowledgment and Termination Statement, Components Thereof, 32472–32474 32480–32481 Basis Document; Issuance: Expiration Term for Certificates of Compliance for Justice Department Transportation Packages, 32479–32480 NOTICES Environmental Assessments; Availability, etc.: Agency Information Collection Activities; Proposals, Portland General Electric Co. Trojan Independent Spent Submissions, and Approvals: Fuel Storage Installation, 32478–32479 United States Victims of State Sponsored Terrorism Fund Meetings: Application Form, 32474–32475 Advisory Committee on Reactor Safeguards, 32477–32478 Meetings; Sunshine Act, 32482 Land Management Bureau Regulatory Guide; Issuance: NOTICES Qualification and Training of Personnel for Nuclear Realty Action: Power Plants, 32481–32482 Proposed Competitive Sale, White Pine County, NV, 32469–32472 Postal Regulatory Commission RULES Legal Services Corporation Mail Classification Schedule, 32317 NOTICES Meetings; Sunshine Act, 32475 Railroad Retirement Board NOTICES Library of Congress Meetings; Sunshine Act, 32482 See Copyright Office, Library of Congress See Copyright Royalty Board Rural Utilities Service NOTICES National Assessment Governing Board Request for Applications: Section 514 Farm Labor Housing Loans and Section 516 NOTICES Farm Labor Housing Grants for Off-Farm Housing for Meeting, 32430–32431 Fiscal Year 2019, 32404–32413 National Institute of Food and Agriculture Securities and Exchange Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings; Sunshine Act, 32505–32506 Submissions, and Approvals, 32403–32404 Order: Public Company Accounting Oversight Board; Approval National Institutes of Health of Amendments to Auditing Standards for Auditor’s NOTICES Use of the Work of Specialists, 32502–32505 Meetings: Public Company Accounting Oversight Board; Approval National Cancer Institute, 32463 of Auditing Standard 2501, Auditing Accounting National Institute of Allergy and Infectious Diseases, Estimates, Including Fair Value Measurements, and 32464 Related Amendments to Public Company Accounting National Institute of Mental Health, 32464 Oversight Board Auditing Standards, 32498–32502 National Institute of Neurological Disorders and Stroke, Self-Regulatory Organizations; Proposed Rule Changes: 32464–32465 Financial Industry Regulatory Authority, Inc., 32492– National Institute on Aging, 32464 32497, 32506–32508 ICE Clear Europe, Ltd., 32483–32491 National Oceanic and Atmospheric Administration The Depository Trust Co., 32508–32510 RULES Mallows Bay-Potomac River National Marine Sanctuary State Department Designation, 32586–32606 NOTICES NOTICES Culturally Significant Objects Imported for Exhibition: Meetings: Verrocchio: Sculptor and Painter of Renaissance National Integrated Drought Information System National Florence, 32510 Drought Forum, 32419–32420 Delegation of Authority Approval of Construction Security Takes of Marine Mammals: Certifications to Congress, 32510 Incidental to National Wildlife Refuge Complex Research, Re-Delegation of Authority To Invoke the Law Enforcement Monitoring, and Maintenance Activities in Privilege Information Relating To Vetting of Certain Massachusetts, 32415–32419 Refugee Applicants, 32510

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Substance Abuse and Mental Health Services Administration

NOTICES Separate Parts In This Issue Certified Laboratories and Instrumented Initial Testing Facilities: List of Facilities That Meet Minimum Standards To Part II Engage in Urine Drug Testing for Federal Agencies, Environmental Protection Agency, 32520–32584 32465–32466 Surface Transportation Board Part III NOTICES Commerce Department, National Oceanic and Atmospheric Abandonment Exemption: Administration, 32586–32606 Union Pacific Railroad Co., Harris and Chambers Counties, TX, 32510–32511

Transportation Department Reader Aids See Federal Aviation Administration Consult the Reader Aids section at the end of this issue for See Federal Motor Carrier Safety Administration phone numbers, online resources, finding aids, and notice NOTICES of recently enacted public laws. Privacy Act; Systems of Records, 32512–32517 To subscribe to the Federal Register Table of Contents United States Sentencing Commission electronic mailing list, go to https://public.govdelivery.com/ NOTICES accounts/USGPOOFR/subscriber/new, enter your e-mail Request for Applications: address, then follow the instructions to join, leave, or Practitioners Advisory Group, 32517–32518 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 Proposed Rules: 40...... 32327 70...... 32327 72...... 32327 74...... 32327 150...... 32327 431...... 32328 14 CFR 39 (5 documents) ...... 32255, 32257, 32260, 32263, 32266 Proposed Rules: 39 (3 documents) ...... 32338, 32341, 32343 15 CFR 922...... 32586 16 CFR Proposed Rules: 1112...... 32346 1239...... 32346 21 CFR 216...... 32268 33 CFR 110...... 32269 165...... 32272 37 CFR 210...... 32274 303...... 32296 350...... 32296 355...... 32296 370...... 32296 380...... 32296 382...... 32296 383...... 32296 384...... 32296 385...... 32296 39 CFR 3020...... 32317 40 CFR 52...... 32317 60...... 32520 81...... 32317 180...... 32320 Proposed Rules: 52 (3 documents) ...... 32356, 32359, 32361 62 (2 documents) ...... 32363, 32365 721...... 32366 44 CFR Proposed Rules: 62...... 32371 49 CFR 385...... 32323 Proposed Rules: 385...... 32379 50 CFR Proposed Rules: 20...... 32385

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Rules and Regulations Federal Register Vol. 84, No. 130

Monday, July 8, 2019

This section of the FEDERAL REGISTER It is also available on the internet at (referred to after this as the Mandatory contains regulatory documents having general http://www.regulations.gov by searching Continuing Airworthiness Information, applicability and legal effect, most of which for and locating Docket No. FAA–2019– or ‘‘the MCAI’’), to correct an unsafe are keyed to and codified in the Code of 0189. condition for certain Bombardier, Inc., Federal Regulations, which is published under Model DHC–8–102, –103, and –106 50 titles pursuant to 44 U.S.C. 1510. Examining the AD Docket airplanes; Model DHC–8–200 series The Code of Federal Regulations is sold by You may examine the AD docket on airplanes; and Model DHC–8–300 series the Superintendent of Documents. the internet at http:// airplanes. The MCAI states: www.regulations.gov by searching for One operator has reported the loss of an and locating Docket No. FAA–2019– elevator spring tab balance weight prior to DEPARTMENT OF TRANSPORTATION 0189; or in person at Docket Operations takeoff. An investigation found that between 9 a.m. and 5 p.m., Monday clearances, due to tolerance stack-up between Federal Aviation Administration through Friday, except Federal holidays. balance weight and hinge arm, allow the The AD docket contains this final rule, attachment bolts to fret with the hinge arm 14 CFR Part 39 the regulatory evaluation, any causing wear and potentially progressing to fracture and loss of the spring tab balance [Docket No. FAA–2019–0189; Product comments received, and other weight. The loss of a spring tab balance Identifier 2019–NM–001–AD; Amendment information. The address for Docket weight could result in unacceptable flutter 39–19672; AD 2019–12–17] Operations is U.S. Department of margins and loss of the aeroplane. RIN 2120–AA64 Transportation, Docket Operations, This [Canadian] AD mandates a one-time M–30, West Building Ground Floor, [detailed] inspection to verify the spring tab Airworthiness Directives; Bombardier, Room W12–140, 1200 New Jersey balance weights are securely attached on Avenue SE, Washington, DC 20590. both the left hand and right hand spring tab Inc., Airplanes assemblies. If any of the balance weights are FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Aviation found loose, instructions are given to repair Andrea Jimenez, Aerospace Engineer, any damage to the hinge arm, and to add a Administration (FAA), Department of Airframe and Mechanical Systems solid shim between balance weight and hinge Transportation (DOT). Section, FAA, New York ACO Branch, arm to eliminate any potential gap, and to ACTION: Final rule. 1600 Stewart Avenue, Suite 410, specify balance weight attachment hardware Westbury, NY 11590; telephone 516– that has low susceptibility to hydrogen SUMMARY: embrittlement. The FAA is adopting a new 228–7330; fax 516–794–5531; email airworthiness directive (AD) for certain [email protected]. You may examine the MCAI in the Bombardier, Inc., Model DHC–8–102, SUPPLEMENTARY INFORMATION: AD docket on the internet at http:// –103, and –106 airplanes; Model DHC– www.regulations.gov by searching for 8–200 series airplanes; and Model DHC– Discussion and locating Docket No. FAA–2019– 8–300 series airplanes. This AD was The FAA issued a notice of proposed 0189. prompted by the reported loss of an rulemaking (NPRM) to amend 14 CFR elevator spring tab balance weight prior Comments part 39 by adding an AD that would to takeoff. This AD requires inspecting apply to certain Bombardier, Inc., Model The FAA gave the public the the two balance weights and the two DHC–8–102, –103, and –106 airplanes; opportunity to participate in developing hinge arms on each elevator spring tab, Model DHC–8–200 series airplanes; and this final rule. The FAA has considered and corrective actions if necessary. The Model DHC–8–300 series airplanes. The the comment received. The Air Line FAA is issuing this AD to address the NPRM published in the Federal Pilots Association, International stated unsafe condition on these products. that it agrees with the intent of the Register on April 4, 2019 (84 FR 13148). NPRM. DATES: This AD is effective August 12, The NPRM was prompted by the 2019. reported loss of an elevator spring tab Conclusion The Director of the Federal Register balance weight prior to takeoff. The approved the incorporation by reference The FAA reviewed the relevant data, NPRM proposed to require inspecting considered the comment received, and of a certain publication listed in this AD the two balance weights and the two as of August 12, 2019. determined that air safety and the hinge arms on each elevator spring tab, public interest require adopting this ADDRESSES: For service information and corrective actions if necessary. final rule as proposed, except for minor identified in this final rule, contact The FAA is issuing this AD to address editorial changes. The FAA has Bombardier, Inc., Q-Series Technical tolerance stack-up between the balance determined that these minor changes: Help Desk, 123 Garratt Boulevard, weight and the hinge arm that can allow • Are consistent with the intent that Toronto, Ontario M3K 1Y5, Canada; the attachment bolts to fret with the was proposed in the NPRM for telephone 416–375–4000; fax 416–375– hinge arm and result in wear, fracture, addressing the unsafe condition; and 4539; email thd.qseries@ and loss of the spring tab balance • Do not add any additional burden aero.bombardier.com; internet http:// weight. Loss of the spring tab balance upon the public than was already www.bombardier.com. You may view weight can lead to unacceptable flutter proposed in the NPRM. this service information at the FAA, margins and loss of the airplane. Transport Standards Branch, 2200 Transport Canada Civil Aviation Related Service Information Under 1 South 216th St., Des Moines, WA. For (TCCA), which is the aviation authority CFR Part 51 information on the availability of this for Canada, has issued Canadian AD Bombardier has issued Service material at the FAA, call 206–231–3195. CF–2018–30, dated November 7, 2018 Bulletin 8–55–27, Revision A, dated

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August 15, 2018. This service bushings and a solid shim, replacing the course of business or by the means information describes procedures for hinge arm, repairing damage to the identified in the ADDRESSES section. inspecting the two balance weights and hinge arm, and permanently securing Costs of Compliance the two hinge arms on each elevator the mass balance. spring tab, and corrective actions This service information is reasonably The FAA estimates that this AD including inspecting the holes in the affects 47 airplanes of U.S. registry. The available because the interested parties hinge arm, inspecting the hinge arm for FAA estimates the following costs to have access to it through their normal corrosion and chafing, installing comply with this AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Cost on U.S. Labor cost Parts cost product operators

2 work-hours × $85 per hour = $170 ...... $0 $170 $7,990

The FAA estimates the following the results of any required actions. The number of aircraft that might need these costs to do any necessary on-condition FAA has no way of determining the on-condition actions: actions that would be required based on

ESTIMATED COSTS OF ON-CONDITION ACTIONS

Cost per Labor cost Parts cost product

Up to 18 work-hours × $85 per hour = $1,530 ...... $0 Up to $1,530.

Authority for This Rulemaking Regulatory Findings § 39.13 [Amended] Title 49 of the United States Code This AD will not have federalism ■ 2. The FAA amends § 39.13 by adding specifies the FAA’s authority to issue implications under Executive Order the following new airworthiness rules on aviation safety. Subtitle I, 13132. This AD will not have a directive (AD): substantial direct effect on the States, on section 106, describes the authority of 2019–12–17 Bombardier, Inc.: Amendment the FAA Administrator. Subtitle VII: the relationship between the national 39–19672; Docket No. FAA–2019–0189; Aviation Programs, describes in more government and the States, or on the Product Identifier 2019–NM–001–AD. distribution of power and detail the scope of the Agency’s (a) Effective Date authority. responsibilities among the various levels of government. This AD is effective August 12, 2019. The FAA is issuing this rulemaking For the reasons discussed above, I (b) Affected ADs under the authority described in certify that this AD: Subtitle VII, Part A, Subpart III, Section None. (1) Is not a ‘‘significant regulatory 44701: ‘‘General requirements.’’ Under action’’ under Executive Order 12866, (c) Applicability that section, Congress charges the FAA (2) Will not affect intrastate aviation with promoting safe flight of civil This AD applies to Bombardier, Inc., in Alaska, and Model DHC–8–102, –103, –106, –201, –202, aircraft in air commerce by prescribing –301, –311, and –315 airplanes, certificated regulations for practices, methods, and (3) Will not have a significant economic impact, positive or negative, in any category, serial numbers 003 through procedures the Administrator finds 672 inclusive. necessary for safety in air commerce. on a substantial number of small entities This regulation is within the scope of under the criteria of the Regulatory (d) Subject Flexibility Act. that authority because it addresses an Air Transport Association (ATA) of unsafe condition that is likely to exist or List of Subjects in 14 CFR Part 39 America Code 55, Stabilizers. develop on products identified in this Air transportation, Aircraft, Aviation (e) Reason rulemaking action. safety, Incorporation by reference, This AD was prompted by the reported loss This AD is issued in accordance with Safety. of an elevator spring tab balance weight prior authority delegated by the Executive to takeoff. The FAA is issuing this AD to Director, Aircraft Certification Service, Adoption of the Amendment address tolerance stack-up between the as authorized by FAA Order 8000.51C. Accordingly, under the authority balance weight and the hinge arm that can In accordance with that order, issuance delegated to me by the Administrator, allow the attachment bolts to fret with the of ADs is normally a function of the the FAA amends 14 CFR part 39 as hinge arm and result in wear, fracture, and Compliance and Airworthiness follows: loss of the spring tab balance weight. Loss of Division, but during this transition the spring tab balance weight can lead to period, the Executive Director has PART 39—AIRWORTHINESS unacceptable flutter margins and loss of the airplane. delegated the authority to issue ADs DIRECTIVES applicable to transport category (f) Compliance ■ airplanes and associated appliances to 1. The authority citation for part 39 Comply with this AD within the the Director of the System Oversight continues to read as follows: compliance times specified, unless already Division. Authority: 49 U.S.C. 106(g), 40113, 44701. done.

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(g) Inspection and Corrective Actions request to your principal inspector or local Issued in Des Moines, Washington, on June Within 600 flight hours after the effective Flight Standards District Office, as 21, 2019. date of this AD, perform a detailed inspection appropriate. If sending information directly Dionne Palermo, to the manager of the certification office, of the two balance weights and a detailed Acting Director, System Oversight Division, send it to ATTN: Program Manager, inspection of the two hinge arms on each Aircraft Certification Service. Continuing Operational Safety, FAA, New elevator spring tab (left hand and right hand), [FR Doc. 2019–14412 Filed 7–5–19; 8:45 am] in accordance with Section 3.B, Part A, of the York ACO Branch, 1600 Stewart Avenue, Accomplishment Instructions of Bombardier Suite 410, Westbury, NY 11590; telephone BILLING CODE 4910–13–P Service Bulletin 8–55–27, Revision A, dated 516–228–7300; fax 516–794–5531. Before August 15, 2018. using any approved AMOC, notify your appropriate principal inspector, or lacking a (1) If any of the balance weight attachment DEPARTMENT OF TRANSPORTATION principal inspector, the manager of the local locknuts, part number (P/N) MS 21042–4, is flight standards district office/certificate found fractured, loose, or missing: Before Federal Aviation Administration holding district office. further flight conduct the rectification in (2) Contacting the Manufacturer: For any accordance with Section 3.B, Part B, of the requirement in this AD to obtain corrective 14 CFR Part 39 Accomplishment Instructions of Bombardier actions from a manufacturer, the action must Service Bulletin 8–55–27, Revision A, dated [Docket No. FAA–2019–0496; Product be accomplished using a method approved August 15, 2018. Identifier 2019–NM–055–AD; Amendment by the Manager, New York ACO Branch, (2) If the balance weight is found not 39–19671; AD 2019–12–16] FAA; or Transport Canada Civil Aviation secure: Within 60 flight hours after the (TCCA); or Bombardier, Inc.’s TCCA Design RIN 2120–AA64 inspection required by paragraph (g) of this Approval Organization (DAO). If approved by AD, repair any damage to the hinge arm and the DAO, the approval must include the Airworthiness Directives; Airbus SAS permanently secure the mass balance, in DAO-authorized signature. Airplanes accordance with Section 3.B, Part B, of the Accomplishment Instructions of Bombardier (j) Related Information AGENCY: Federal Aviation Service Bulletin 8–55–27, Revision A, dated (1) Refer to Mandatory Continuing Administration (FAA), DOT. August 15, 2018. Airworthiness Information (MCAI) Canadian ACTION: Final rule; request for (3) If the balance weight is found secure: AD CF–2018–30, dated November 7, 2018, Within 5,000 flight hours after the inspection for related information. This MCAI may be comments. required by paragraph (g) of this AD, repair found in the AD docket on the internet at SUMMARY: any damage to the hinge arm and http://www.regulations.gov by searching for The FAA is adopting a new permanently secure the mass balance, in and locating Docket No. FAA–2019–0189. airworthiness directive (AD) for certain accordance with Section 3.B, Part B, of the (2) For more information about this AD, Airbus SAS Model A350–941 airplanes. Accomplishment Instructions of Bombardier contact Andrea Jimenez, Aerospace Engineer, This AD was prompted by a report that Service Bulletin 8–55–27, Revision A, dated Airframe and Mechanical Systems Section, the capability of the diagonal struts August 15, 2018. FAA, New York ACO Branch, 1600 Stewart fitted at a certain frame is below the (4) Where Bombardier Service Bulletin 8– Avenue, Suite 410, Westbury, NY 11590; expected design specifications. This AD 55–27, Revision A, dated August 15, 2018, telephone 516–228–7330; fax 516–794–5531; specifies to contact Bombardier for requires replacing the original diagonal email [email protected]. struts at a certain frame with new, appropriate action: Before further flight, (3) Service information identified in this accomplish corrective actions in accordance AD that is not incorporated by reference is improved parts, as specified in an with the procedures specified in paragraph available at the addresses specified in European Aviation Safety Agency (i)(2) of this AD. paragraphs (k)(3) and (k)(4) of this AD. (EASA) AD, which is incorporated by reference. The FAA is issuing this AD (h) Credit for Previous Actions (k) Material Incorporated by Reference to address the unsafe condition on these This paragraph provides credit for actions (1) The Director of the Federal Register products. required by paragraphs (g), (g)(2), (g)(3), and approved the incorporation by reference (g)(4) of this AD, if those actions were (IBR) of the service information listed in this DATES: This AD becomes effective July performed before the effective date of this AD paragraph under 5 U.S.C. 552(a) and 1 CFR 23, 2019. using Section 3.B of the Accomplishment part 51. The Director of the Federal Register Instructions of Bombardier Service Bulletin (2) You must use this service information approved the incorporation by reference 8–55–27, dated April 17, 2018, provided that as applicable to do the actions required by of a certain publication listed in this AD within 600 flight hours after the effective this AD, unless this AD specifies otherwise. as of July 23, 2019. date of this AD, a detailed visual inspection (i) Bombardier Service Bulletin 8–55–27, The FAA must receive comments on of the balance weight locknuts, P/N MS Revision A, dated August 15, 2018. 21042–4, is performed in accordance with (ii) [Reserved] this AD by August 22, 2019. Section 3.B, Part C, of the Accomplishment (3) For service information identified in ADDRESSES: You may send comments, Instructions of Bombardier Service Bulletin this AD, contact Bombardier, Inc., Q-Series using the procedures found in 14 CFR 8–55–27, Revision A, dated August 15, 2018, Technical Help Desk, 123 Garratt Boulevard, 11.43 and 11.45, by any of the following and the rectification is performed before Toronto, Ontario M3K 1Y5, Canada; methods: further flight for any fractured, loose, or telephone 416–375–4000; fax 416–375–4539; • Federal eRulemaking Portal: Go to missing balance weight attachment locknuts, email [email protected]; P/N MS 21042–4, in accordance with Section internet http://www.bombardier.com. http://www.regulations.gov. Follow the 3.B, Part B, of the Accomplishment (4) You may view this service information instructions for submitting comments. Instructions of Bombardier Service Bulletin at the FAA, Transport Standards Branch, • Fax: 202–493–2251. 8–55–27, Revision A, dated August 15, 2018. 2200 South 216th St., Des Moines, WA. For • Mail: U.S. Department of information on the availability of this Transportation, Docket Operations, (i) Other FAA AD Provisions material at the FAA, call 206–231–3195. M–30, West Building Ground Floor, The following provisions also apply to this (5) You may view this service information Room W12–140, 1200 New Jersey AD: that is incorporated by reference at the Avenue SE, Washington, DC 20590. (1) Alternative Methods of Compliance National Archives and Records • (AMOCs): The Manager, New York ACO Administration (NARA). For information on Hand Delivery: U.S. Department of Branch, FAA, has the authority to approve the availability of this material at NARA, call Transportation, Docket Operations, AMOCs for this AD, if requested using the 202–741–6030, or go to: http:// M–30, West Building Ground Floor, procedures found in 14 CFR 39.19. In www.archives.gov/federal-register/cfr/ibr- Room W12–140, 1200 New Jersey accordance with 14 CFR 39.19, send your locations.html. Avenue SE, Washington, DC 20590,

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between 9 a.m. and 5 p.m., Monday This condition, if not corrected, could final rule. This AD, therefore, requires through Friday, except Federal holidays. affect the structural integrity of the rear cone compliance with the provisions For the material incorporated by of the fuselage. specified in EASA AD 2019–0065, To address this potential unsafe condition, reference (IBR) in this AD, contact the Airbus designed new diagonal struts except for any differences identified as EASA, Konrad-Adenauer-Ufer 3, 50668 (serviceable parts), approved by Airbus mod exceptions in the regulatory text of this Cologne, Germany; telephone +49 221 108588, and issued the [service bulletin] SB AD. Service information specified in 89990 1000; email [email protected]; to provide instructions for the in-service EASA AD 2019–0065 that is required for internet www.easa.europa.eu. You may replacement of the affected parts. compliance with EASA AD 2019–0065 find this IBR material on the EASA For the reasons described above, this is available on the internet at http:// website at https://ad.easa.europa.eu. [EASA] AD requires replacement of the www.regulations.gov by searching for affected parts at fuselage FR102 with and locating Docket No. FAA–2019– You may view this IBR material at the serviceable parts. This [EASA] AD also FAA, Transport Standards Branch, 2200 prohibits (re)installation of affected parts. 0496. South 216th St., Des Moines, WA. For Related IBR Material Under 1 CFR Part FAA’s Justification and Determination information on the availability of this of the Effective Date material at the FAA, call 206–231–3195. 51 It is also available in the AD docket on EASA AD 2019–0065 describes Since there are currently no domestic the internet at http:// procedures for replacing the original operators of this product, notice and www.regulations.gov. diagonal struts at frame 102 with new, opportunity for public comment before improved parts. This material is issuing this AD are unnecessary. In Examining the AD Docket reasonably available because the addition, for the reasons stated above, You may examine the AD docket on interested parties have access to it the FAA finds that good cause exists for the internet at http:// through their normal course of business making this amendment effective in less www.regulations.gov by searching for or by the means identified in the than 30 days. and locating Docket No. FAA–2019– ADDRESSES section. Comments Invited 0496; or in person at Docket Operations FAA’s Determination between 9 a.m. and 5 p.m., Monday This AD is a final rule that involves through Friday, except Federal holidays. This product has been approved by requirements affecting flight safety, and The AD docket contains this AD, the the aviation authority of another the FAA did not precede it by notice regulatory evaluation, any comments country, and is approved for operation and opportunity for public comment. received, and other information. The in the United States. Pursuant to a The FAA invites you to send any street address for Docket Operations is bilateral agreement with the State of written relevant data, views, or listed above. Comments will be Design Authority, the FAA has been arguments about this AD. Send your available in the AD docket shortly after notified of the unsafe condition comments to an address listed under the receipt. described in the MCAI referenced ADDRESSES section. Include ‘‘Docket No. above. The FAA is issuing this AD FOR FURTHER INFORMATION CONTACT: FAA–2019–0496; Product Identifier because the agency evaluated all Kathleen Arrigotti, Aerospace Engineer, 2019–NM–055–AD’’ at the beginning of pertinent information and determined International Section, Transport your comments. The FAA specifically the unsafe condition exists and is likely Standards Branch, FAA, 2200 South invites comments on the overall to exist or develop on other products of regulatory, economic, environmental, 216th St., Des Moines, WA 98198; the same type design. telephone and fax 206–231–3218. and energy aspects of this AD. The FAA will consider all comments received by SUPPLEMENTARY INFORMATION: Requirements of This AD This AD requires accomplishing the the closing date and may amend this AD Discussion actions specified in EASA AD 2019– based on those comments. The EASA, which is the Technical 0065 described previously, as The FAA will post all comments the Agent for the Member States of the incorporated by reference, except for agency receives, without change, to European Union, has issued EASA AD any differences identified as exceptions http://www.regulations.gov, including 2019–0065, dated March 27, 2019 in the regulatory text of this AD. any personal information you provide. (‘‘EASA AD 2019–0065’’) (also referred The FAA will also post a report Explanation of Required Compliance to as the Mandatory Continuing summarizing each substantive verbal Information Airworthiness Information, or ‘‘the contact the agency receives about this MCAI’’), to correct an unsafe condition In the FAA’s ongoing efforts to AD. for certain Airbus SAS Model A350–941 improve the efficiency of the AD Costs of Compliance airplanes. The MCAI states: process, the FAA worked with Airbus and EASA to develop a process to use Currently, there are no affected U.S.- Results of new additional tests, performed on the current diagonal struts fitted at certain EASA ADs as the primary source registered airplanes. If an affected fuselage frame (FR) 102 on A350–941 of information for compliance with airplane is imported and placed on the aeroplanes, determined that the capability of requirements for corresponding FAA U.S. Register in the future, the FAA the affected parts is below the expected ADs. As a result, EASA AD 2019–0065 provides the following cost estimates to design specifications. is incorporated by reference in the FAA comply with this AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Labor cost Parts cost product

5 work-hours × $85 per hour = $425 ...... $37,500 $37,925

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According to the manufacturer, some under the criteria of the Regulatory (1) Alternative Methods of Compliance or all of the costs of this AD may be Flexibility Act. (AMOCs): The Manager, International covered under warranty, thereby Section, Transport Standards Branch, FAA, List of Subjects in 14 CFR Part 39 has the authority to approve AMOCs for this reducing the cost impact on affected AD, if requested using the procedures found individuals. The FAA does not control Air transportation, Aircraft, Aviation in 14 CFR 39.19. In accordance with 14 CFR warranty coverage for affected safety, Incorporation by reference, 39.19, send your request to your principal individuals. As a result, the FAA has Safety. inspector or local Flight Standards District Office, as appropriate. If sending information included all known costs in the cost Adoption of the Amendment estimate. directly to the International Section, send it Accordingly, under the authority to the attention of the person identified in Authority for This Rulemaking delegated to me by the Administrator, paragraph (j) of this AD. Information may be the FAA amends 14 CFR part 39 as emailed to: 9-ANM-116-AMOC-REQUESTS@ Title 49 of the United States Code faa.gov. Before using any approved AMOC, specifies the FAA’s authority to issue follows: notify your appropriate principal inspector, rules on aviation safety. Subtitle I, or lacking a principal inspector, the manager section 106, describes the authority of PART 39—AIRWORTHINESS of the local flight standards district office/ the FAA Administrator. Subtitle VII: DIRECTIVES certificate holding district office. Aviation Programs, describes in more (2) Contacting the Manufacturer: For any ■ 1. The authority citation for part 39 detail the scope of the Agency’s requirement in this AD to obtain instructions continues to read as follows: authority. from a manufacturer, the instructions must Authority: 49 U.S.C. 106(g), 40113, 44701. be accomplished using a method approved The FAA is issuing this rulemaking by the Manager, International Section, under the authority described in § 39.13 [Amended] Transport Standards Branch, FAA; or EASA; Subtitle VII, Part A, Subpart III, Section or Airbus SAS’s EASA Design Organization 44701: ‘‘General requirements.’’ Under ■ 2. The FAA amends § 39.13 by adding Approval (DOA). If approved by the DOA, that section, Congress charges the FAA the following new airworthiness the approval must include the DOA- with promoting safe flight of civil directive (AD): authorized signature. aircraft in air commerce by prescribing 2019–12–16 Airbus SAS: Amendment 39– (3) Required for Compliance (RC): For any regulations for practices, methods, and 19671; Docket No. FAA–2019–0496; service information referenced in EASA AD Product Identifier 2019–NM–055–AD. 2019–0065 that contains RC procedures and procedures the Administrator finds tests: Except as required by paragraph (i)(2) necessary for safety in air commerce. (a) Effective Date of this AD, RC procedures and tests must be This regulation is within the scope of This AD becomes effective July 23, 2019. done to comply with this AD; any procedures that authority because it addresses an or tests that are not identified as RC are unsafe condition that is likely to exist or (b) Affected ADs recommended. Those procedures and tests develop on products identified in this None. that are not identified as RC may be deviated rulemaking action. from using accepted methods in accordance (c) Applicability with the operator’s maintenance or This AD is issued in accordance with This AD applies to Airbus SAS Model inspection program without obtaining authority delegated by the Executive A350–941 airplanes, certificated in any approval of an AMOC, provided the Director, Aircraft Certification Service, category, as identified in European Aviation procedures and tests identified as RC can be as authorized by FAA Order 8000.51C. Safety Agency (EASA) AD 2019–0065, dated done and the airplane can be put back in an In accordance with that order, issuance March 27, 2019 (‘‘EASA AD 2019–0065’’). airworthy condition. Any substitutions or of ADs is normally a function of the changes to procedures or tests identified as (d) Subject Compliance and Airworthiness RC require approval of an AMOC. Air Transport Association (ATA) of Division, but during this transition (j) Related Information America Code 53, Fuselage. period, the Executive Director has For more information about this AD, delegated the authority to issue ADs (e) Reason contact Kathleen Arrigotti, Aerospace applicable to transport category This AD was prompted by a report that the Engineer, International Section, Transport airplanes and associated appliances to capability of the diagonal struts fitted at Standards Branch, FAA, 2200 South 216th the Director of the System Oversight fuselage frame 102 is below the expected St., Des Moines, WA 98198; telephone and Division. design specifications. The FAA is issuing this fax 206–231–3218. AD to address diagonal struts that are below (k) Material Incorporated by Reference Regulatory Findings the expected design specifications, which (1) The Director of the Federal Register The FAA determined that this AD could affect the structural integrity of the rear cone of the fuselage. approved the incorporation by reference will not have federalism implications (IBR) of the service information listed in this under Executive Order 13132. This AD (f) Compliance paragraph under 5 U.S.C. 552(a) and 1 CFR will not have a substantial direct effect Comply with this AD within the part 51. on the States, on the relationship compliance times specified, unless already (2) You must use this service information between the national government and done. as applicable to do the actions required by the States, or on the distribution of this AD, unless this AD specifies otherwise. (g) Requirements (i) European Aviation Safety Agency power and responsibilities among the Except as specified in paragraph (h) of this (EASA) AD 2019–0065, dated March 27, various levels of government. AD: Comply with all required actions and 2019. For the reasons discussed above, I compliance times specified in, and in (ii) [Reserved] certify that this AD: accordance with, EASA AD 2019–0065. (3) For EASA AD 2019–0065, contact the 1. Is not a ‘‘significant regulatory EASA, Konrad-Adenauer-Ufer 3, 50668 (h) Exceptions to EASA AD 2019–0065 action’’ under Executive Order 12866; Cologne, Germany; telephone +49 221 89990 2. Will not affect intrastate aviation in The ‘‘Remarks’’ section of EASA AD 2019– 6017; email [email protected]; Internet 0065 does not apply to this AD. www.easa.europa.eu. You may find this Alaska; and EASA AD on the EASA website at https:// 3. Will not have a significant (i) Other FAA AD Provisions ad.easa.europa.eu. economic impact, positive or negative, The following provisions also apply to this (4) You may view this EASA AD at the on a substantial number of small entities AD: FAA, Transport Standards Branch, 2200

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South 216th St., Des Moines, WA. For • Federal eRulemaking Portal: Go to TCAS fly-to/avoidance cue is displayed information on the availability of this http://www.regulations.gov. Follow the relative to the aircraft horizon line material at the FAA, call 206–231–3195. instructions for submitting comments. instead of the aircraft symbol. Rockwell EASA AD 2019–0065 may be found in the • Fax: 202–493–2251. Collins determined that the data from AD docket on the internet at http:// • Mail: U.S. Department of www.regulations.gov by searching for and the TCAS is being translated incorrectly locating Docket No. FAA–2019–0496. Transportation, Docket Operations, by the FDSA–6500 software prior to (5) You may view this material that is M–30, West Building Ground Floor, display of the RA pitch indications. incorporated by reference at the National Room W12–140, 1200 New Jersey This condition, if not addressed, Archives and Records Administration Avenue SE, Washington, DC 20590. could lead to the pilot over-correcting or (NARA). For information on the availability • Hand Delivery: U.S. Department of under-correcting for aircraft separation of this material at NARA, call 202–741–6030, Transportation, Docket Operations, and may result in a mid-air collision. or go to: http://www.archives.gov/federal- M–30, West Building Ground Floor, The manufacturer is developing a register/cfr/ibr-locations.html. Room W12–140, 1200 New Jersey software update to correct this Issued in Des Moines, Washington, on June Avenue SE, Washington, DC 20590, condition. The actions required by this 21, 2019. between 9 a.m. and 5 p.m., Monday AD are intended to prevent conflicting Dionne Palermo, through Friday, except Federal holidays. TCAS information by prohibiting flight operation with RA functionality Acting Director, System Oversight Division, Examining the AD Docket Aircraft Certification Service. enabled. The FAA is issuing this AD to [FR Doc. 2019–14413 Filed 7–5–19; 8:45 am] You may examine the AD docket on address the unsafe condition on these BILLING CODE 4910–13–P the internet at http:// products. www.regulations.gov by searching for and locating Docket No. FAA–2019– Related Service Information DEPARTMENT OF TRANSPORTATION 0469; or in person at Docket Operations The FAA reviewed Rockwell Collins between 9 a.m. and 5 p.m., Monday Operator Bulletin OPSB 0193–19R1, Federal Aviation Administration through Friday, except Federal holidays. Revision 1, dated April 3, 2019. The The AD docket contains this final rule, service information describes the unsafe 14 CFR Part 39 the regulatory evaluation, any condition and provides examples of different scenarios that could occur with [Docket No. FAA–2019–0469; Product comments received, and other Identifier 2019–CE–028–AD; Amendment information. The street address for the TCAS indication conflicts. The 39–19664; AD 2019–12–09] Docket Operations is listed above. service information also contains Comments will be available in the AD instructions for determining the part RIN 2120–AA64 docket shortly after receipt. number of the FDSA–6500 installation. Airworthiness Directives; Rockwell FOR FURTHER INFORMATION CONTACT: FAA’s Determination Nhien Hoang, Aerospace Engineer, Collins, Inc. Flight Display System The FAA is issuing this AD because Application Wichita ACO Branch, FAA, 1801 Airport Road, Room 100, Wichita, it evaluated all the relevant information AGENCY: Federal Aviation Kansas 67209; telephone: (316) 946– and determined the unsafe condition Administration (FAA), DOT. 4157; fax: (316) 946–4107; email: described previously is likely to exist or develop in other products of the same ACTION: Final rule; request for [email protected] or Wichita-COS@ type design. comments. faa.gov. SUPPLEMENTARY INFORMATION: AD Requirements SUMMARY: The FAA is adopting a new This AD prohibits operation with the airworthiness directive (AD) for certain Discussion TCAS in TA/RA mode by requiring a part-numbered Rockwell Collins, Inc. The FAA was notified that a conflict (Rockwell Collins) FDSA–6500 flight revision to the Limitations section of the may occur between the TCAS primary AFM or AFMS and by fabricating and display system applications installed on cockpit display indications and the airplanes. This AD imposes operating installing a placard on each aircraft aural alerts during an RA scenario on primary flight display. An owner/ limitations on the traffic collision specific part-numbered Rockwell avoidance system (TCAS) by revising operator (pilot) may revise the AFM or Collins FDSA–6500 flight display the AFMS and fabricate and install the the Limitations section of the airplane system applications. These applications flight manual (AFM) or AFM required placard, and the owner/ may be installed on, but not limited to, operator must enter compliance with supplement (AFMS) and installing a Bombardier Inc. Model CL–600–2B16 placard on each aircraft primary flight the applicable paragraphs of the AD into (604 variant) airplanes and Textron the aircraft records in accordance with display. This AD was prompted by a Aviation Inc. Models 525B, B200, conflict between the TCAS display 14 CFR 43.9(a)(1) through (4) and 14 B200C, B200CGT, B200GT, B300, CFR 91.417(a)(2)(v). A pilot may indications and aural alerts that may B300C, and C90GTi airplanes. occur during a resolution advisory (RA) perform these actions because they can During testing of a full flight be performed equally well by a pilot or scenario. The FAA is issuing this AD to simulator on a development program, require actions that address the unsafe a mechanic. This is an exception to our the TCAS fly-to/avoidance cue standard maintenance regulations. condition on these products. indication on the primary cockpit DATES: This AD is effective July 23, displays conflicted with other TCAS Interim Action 2019. system information, such as aural cues, The FAA considers this AD interim The FAA must receive comments on during an RA scenario. While the aural action. The operating limitation this AD by August 22, 2019. alert will provide the pilot with accurate required by this AD will immediately ADDRESSES: You may send comments, information to resolve the RA, that address the unsafe condition. However, using the procedures found in 14 CFR information is not accurately Rockwell Collins is developing a 11.43 and 11.45, by any of the following represented by the TCAS fly-to/ software upgrade to correct the unsafe methods: avoidance cue display. Specifically, the condition and eliminate the need for the

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operating limitation required by this AD air collision. Therefore, the FAA finds environmental, and energy aspects of action. Because the operating limitation good cause that notice and opportunity this final rule. The FAA will consider required by this AD addresses the for prior public comment are all comments received by the closing unsafe condition, any rulemaking with impracticable. In addition, for the date and may amend this final rule a software upgrade would allow for reason stated above, the FAA finds that because of those comments. public notice and comment. Thus, the good cause exists for making this The FAA will post all comments it FAA will consider future rulemaking amendment effective in less than 30 receives, without change, to http:// when the software upgrade becomes days. www.regulations.gov, including any available. Comments Invited personal information you provide. The FAA will also post a report FAA’s Justification and Determination This AD is a final rule that involves summarizing each substantive verbal of the Effective Date requirements affecting flight safety and contact it receives about this final rule. An unsafe condition exists that was not preceded by notice and an requires the immediate adoption of this opportunity for public comment. Costs of Compliance AD without providing an opportunity However, the FAA invites you to send for public comments prior to adoption. any written data, views, or arguments The FAA estimates that this AD The FAA has found that the risk to the about this final rule. Send your affects 932 FDSA–6500 flight display flying public justifies waiving notice comments to an address listed under the system applications installed on 311 and comment prior to adoption of this ADDRESSES section. Include the Docket airplanes worldwide. The number of rule because a conflict between the Number FAA–2019–0469 and Product FDSA–6500 applications installed on displayed indications and the TCAS Identifier 2019–CE–028–AD at the airplanes on the U.S. Registry is aural alert could lead to the pilot over- beginning of your comments. The FAA unknown. correcting or under-correcting for specifically invites comments on the The FAA estimates the following aircraft separation and result in a mid- overall regulatory, economic, costs to comply with this AD:

ESTIMATED COSTS

Cost on Action Labor cost Parts cost Cost per product operators worldwide

Revise the Limitations section of the AFM .5 work-hour × $85 per hour Not applicable ...... $42.50 (per airplane) ...... $13,217.50 or AFMS. = $42.50. Fabricate and install a placard ...... 5 work-hour × $85 per hour Negligible ...... $42.50 (per primary flight 39,610 = $42.50. display).

Authority for This Rulemaking adopt this rule without notice and PART 39—AIRWORTHINESS comment, RFA analysis is not required. Title 49 of the United States Code DIRECTIVES specifies the FAA’s authority to issue Regulatory Findings rules on aviation safety. Subtitle I, ■ 1. The authority citation for part 39 section 106, describes the authority of This AD will not have federalism continues to read as follows: the FAA Administrator. ‘‘Subtitle VII: implications under Executive Order Authority: 49 U.S.C. 106(g), 40113, 44701. Aviation Programs’’ describes in more 13132. This AD will not have a detail the scope of the Agency’s substantial direct effect on the States, on § 39.13 [Amended] the relationship between the national authority. ■ 2. The FAA amends § 39.13 by adding The FAA is issuing this rulemaking government and the States, or on the distribution of power and the following new airworthiness under the authority described in directive (AD): Subtitle VII, Part A, Subpart III, Section responsibilities among the various levels of government. 2019–12–09 Rockwell Collins, Inc.: 44701: ‘‘General requirements.’’ Under Amendment 39–19664 ; Docket No. that section, Congress charges the FAA For the reasons discussed above, I FAA–2019–0469 Product Identifier with promoting safe flight of civil certify that this AD: 2019–CE–028–AD. aircraft in air commerce by prescribing (1) Is not a ‘‘significant regulatory (a) Effective Date regulations for practices, methods, and action’’ under Executive Order 12866, procedures the Administrator finds and This AD is effective July 23, 2019. necessary for safety in air commerce. (2) Will not affect intrastate aviation (b) Affected ADs This regulation is within the scope of None. that authority because it addresses an in Alaska. unsafe condition that is likely to exist or List of Subjects in 14 CFR Part 39 (c) Applicability develop on products identified in this This AD applies to Rockwell Collins, Inc. rulemaking action. Air transportation, Aircraft, Aviation (Rockwell Collins) Flight Display System safety, Incorporation by reference, Application FDSA–6500 part numbers 810– Regulatory Flexibility Act Safety. 0234–1H0001, 810–0234–1H0002, 810– The requirements of the Regulatory 0234–1H0003, 810–0234–2H0001, 810– Adoption of the Amendment 0234–2C0001, 810–0234–2C0002, and 810– Flexibility Act (RFA) do not apply when 0234–4B0001. These appliances are installed an agency finds good cause pursuant to Accordingly, under the authority on, but not limited to, Bombardier Inc. Model 5 U.S.C. 553 to adopt a rule without delegated to me by the Administrator, CL–600–2B16 (604 variant) airplanes and prior notice and comment. Because FAA the FAA amends 14 CFR part 39 as Textron Aviation Inc. Models 525B, B200, has determined that it has good cause to follows: B200C, B200CGT, B200GT, B300, B300C, and

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C90GTi airplanes, certificated in any and aural alerts during a resolution advisory TCAS II installations, during flight, do not category. (RA) scenario. The FAA is issuing this AD to operate TCAS in the ‘‘TA/RA’’ mode; TCAS Note 1 to paragraph (c) of this AD: prevent conflicting TCAS information. The may only be operated in ‘‘TA Only’’ mode. Rockwell Collins Operator Bulletin OPSB unsafe condition, if not addressed, could Note 2 to paragraphs (g) and (h) of this 0193–19R1, Revision 1, dated April 3, 2019, result in the pilot under-correcting or over- AD: In ‘‘TA/RA’’ mode, the TA stands for contains additional information related to the correcting and may lead to inadequate traffic advisory and RA stands for resolution Applicability of this AD. aircraft separation and a mid-air collision. advisory. (d) Subject (f) Compliance (2) Fabricate a placard for each aircraft 1 Joint Aircraft System Component (JASC)/ Comply with this AD within 30 days after primary flight display, using at least ⁄8 inch Air Transport Association (ATA) of America July 23, 2019 (the effective date of this AD), letters, with the following text: TCAS Flight Code 34; Navigation. unless already done. Ops—TA Only mode (TA/RA mode prohibited). (e) Unsafe Condition (g) Operating Limitations (3) Install the placard on the bottom of This AD was prompted by a conflict (1) Revise the airplane flight manual (AFM) each aircraft primary flight display bezel in between the traffic collision avoidance or AFM supplement (AFMS) by adding the the area depicted in figure 1 to paragraph system (TCAS) primary display indications following text to the Limitations section: For (g)(3) of this AD.

(4) In addition to the provisions of 14 CFR (i) Alternative Methods of Compliance Wichita ACO Branch, FAA, 1801 Airport 43.3 and 43.7, the actions required by (AMOCs) Road, Room 100, Wichita, Kansas 67209; paragraph (g)(1) through (3) of this AD may (1) The Manager, Wichita ACO Branch, telephone: (316) 946–4157; fax: (316) 946– be performed by the owner/operator (pilot) FAA, has the authority to approve AMOCs 4107; email: [email protected] or holding at least a private pilot certificate and for this AD, if requested using the procedures [email protected]. must be entered into the aircraft records found in 14 CFR 39.19. In accordance with (2) Rockwell Collins Operator Bulletin showing compliance with this AD in 14 CFR 39.19, send your request to your OPSB 0193–19R1, Revision 1, dated April 3, accordance with 14 CFR 43.9(a)(1) through principal inspector or local Flight Standards 2019, contains additional information related District Office, as appropriate. If sending (4) and 14 CFR 91.417(a)(2)(v). The record to this AD. You may obtain copies of this information directly to the manager of the must be maintained as required by 14 CFR service information by contacting Rockwell 91.417. This authority is not applicable to certification office, send it to the attention of the person identified in paragraph (j). Collins, Inc. at Collins Aviation Services, 400 aircraft being operated under 14 CFR part (2) Before using any approved AMOC, Collins Road NE, M/S 164–100, Cedar 119. notify your appropriate principal inspector, Rapids, IA 52498–0001; telephone: 888–265– (h) Special Flight Permit or lacking a principal inspector, the manager 5467 (U.S.) or 319–265–5467; fax: 319–295– of the local flight standards district office/ 4941 (outside U.S.); email: techmanuals@ A special flight permit may be issued with certificate holding district office. the following limitation: Flight operation rockwellcollins.com; internet: http:// _ _ with the TCAS II in ‘‘TA/RA’’ mode is (j) Related Information www.rockwellcollins.com/Services and prohibited. Flight operation with the TCAS is (1) For more information about this AD, Support/Publications.aspx. only permitted in ‘‘TA Only’’ mode. contact Nhien Hoang, Aerospace Engineer,

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Issued in Fort Worth, Texas, on June 28, Examining the AD Docket to a hydraulic/fuel leak and electrical arcing 2019. as an ignition source. This condition, if not You may examine the AD docket on James A. Grigg, corrected, could result in an in-flight fire. the internet at http:// This [Canadian] AD mandates a Acting Deputy Director for Regulatory www.regulations.gov by searching for modification to the routing of the VFG power Operations, Compliance & Airworthiness and locating Docket No. FAA–2019– feeder cables and harnesses, to ensure the Division, Aircraft Certification Service. 0019; or in person at Docket Operations required clearance between the VFG cables [FR Doc. 2019–14307 Filed 7–5–19; 8:45 am] between 9 a.m. and 5 p.m., Monday and hydraulic/fuel lines in the Aft BILLING CODE 4910–13–P through Friday, except Federal holidays. Equipment Bay. The AD docket contains this final rule, You may examine the MCAI in the the regulatory evaluation, any DEPARTMENT OF TRANSPORTATION AD docket on the internet at http:// comments received, and other www.regulations.gov by searching for Federal Aviation Administration information. The address for Docket and locating Docket No. FAA–2019– Operations is U.S. Department of 0019. Transportation, Docket Operations, M– 14 CFR Part 39 Comments 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, [Docket No. FAA–2019–0019; Product The FAA gave the public the Identifier 2018–NM–130–AD; Amendment Washington, DC 20590. opportunity to participate in developing 39–19657; AD 2019–12–02] FOR FURTHER INFORMATION CONTACT: this final rule. The following presents Steven Dzierzynski, Aerospace the comment received on the NPRM and RIN 2120–AA64 Engineer, Avionics and Electrical the FAA’s response. Systems Services Section, FAA, New York ACO Branch, 1600 Stewart Request To Refer to Revised Service Airworthiness Directives; Bombardier, Information Inc., Airplanes Avenue, Suite 410, Westbury, NY 11590; telephone 516–228–7367; fax Flexjet stated that the routing AGENCY: Federal Aviation 516–794–5531; email 9-avs-nyaco-cos@ modification in the proposed AD refers Administration (FAA), Department of faa.gov. to ‘‘outdated Service Bulletins SB 700– Transportation (DOT). SUPPLEMENTARY INFORMATION: 24–089 R1, SB 700–24–6014 R1, 700– ACTION: Final rule. 1A11–24–028 R1 [and] 700–24–5014 Discussion R1.’’ Flexjet added that on September SUMMARY: The FAA is adopting a new The FAA issued a notice of proposed 27, 2018, all service information airworthiness directive (AD) for certain rulemaking (NPRM) to amend 14 CFR referenced in the NPRM was updated to Bombardier, Inc., Model BD–700–1A10 part 39 by adding an AD that would Revision 2. Flexjet noted that Revision and BD–700–1A11 airplanes. This AD apply to certain Bombardier, Inc., Model 2 of the service information merely was prompted by reports of low BD–700–1A10 and BD–700–1A11 clarifies certain procedures. clearance between the variable airplanes. The NPRM published in the The FAA infers that the commenter is frequency generator (VFG) power feeder Federal Register on February 22, 2019 asking that this AD refer to the cables and adjacent hydraulic lines and/ (84 FR 5609). The NPRM was prompted following Bombardier service or fuel lines in the aft equipment bay, by reports of low clearance between the information as the appropriate source which could cause chafing damage. This VFG power feeder cables and adjacent for accomplishing the required actions: AD requires modifying the routing of hydraulic lines and/or fuel lines in the • the VFG power feeder cables and aft equipment bay, which could cause Service Bulletin 700–24–089, harnesses in the aft equipment bay. The chafing damage. The NPRM proposed to Revision 02, dated September 27, 2018. FAA is issuing this AD to address the require modifying the routing of the • Service Bulletin 700–24–6014, unsafe condition on these products. VFG power feeder cables and harnesses Revision 02, dated September 27, 2018. DATES: This AD is effective August 12, in the aft equipment bay. • Service Bulletin 700–1A11–24–028, 2019. The FAA is issuing this AD to address Revision 02, dated September 27, 2018. The Director of the Federal Register chafing damage in the aft equipment • Service Bulletin 700–24–5014, approved the incorporation by reference bay, which could result in a hydraulic/ Revision 02, dated September 27, 2018. fuel leak and electrical arcing as an of certain publications listed in this AD The FAA agrees with the commenter’s as of August 12, 2019. ignition source, and could cause an in- flight fire. request. The FAA has included the ADDRESSES: For service information Transport Canada Civil Aviation Bombardier service information listed identified in this final rule, contact (TCCA), which is the aviation authority above as the appropriate source of Bombardier, Inc., 400 Coˆte-Vertu Road for Canada, has issued Canadian AD service information for accomplishing West, Dorval, Que´bec H4S 1Y9, Canada; CF–2018–22, dated August 2, 2018 the required actions. The FAA has telephone: 514–855–5000; fax: 514– (referred to after this as the Mandatory determined that no additional work is 855–7401; email: thd.crj@ Continuing Airworthiness Information, required for airplanes that have aero.bombardier.com; internet: http:// or ‘‘the MCAI’’), to correct an unsafe accomplished the actions specified in www.bombardier.com. You may view condition for certain Bombardier, Inc., Revision 01 of the referenced service this service information at the FAA, Model BD–700–1A10 and BD–700– information. Revision 02 of the Transport Standards Branch, 2200 1A11 airplanes. The MCAI states: referenced service information clarifies South 216th St., Des Moines, WA. For the language in certain steps and adds information on the availability of this Several aircraft have been discovered with notes to certain steps. The FAA has low clearance between the Variable material at the FAA, call 206–231–3195. Frequency Generator (VFG) cables and added Revision 01 of the referenced It is also available on the internet at hydraulic/fuel lines in the Aft Equipment service information to paragraphs (h)(1) http://www.regulations.gov by searching Bay which may lead to chafing between the and (h)(2) of this AD to provide credit for and locating Docket No. FAA–2019– VFG cables and the hydraulic/fuel lines. for actions done before the effective date 0019. Chafing may result in damage that could lead of this AD.

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Conclusion Related Service Information Under 1 harnesses in the aft equipment bay to The FAA reviewed the relevant data, CFR Part 51 ensure the required clearance between considered the comment received, and Bombardier has issued the following the cables and the hydraulic lines and/ determined that air safety and the service information for Bombardier, Inc. or fuel lines. These documents are public interest require adopting this Model BD–700–1A10 airplanes. distinct since they apply to different final rule with the changes described • Service Bulletin 700–24–089, airplane models and configurations. previously and minor editorial changes. Revision 02, dated September 27, 2018. This service information is reasonably • The FAA has determined that these Service Bulletin 700–24–6014, available because the interested parties minor changes: Revision 02, dated September 27, 2018. have access to it through their normal • Are consistent with the intent that Bombardier has issued the following course of business or by the means was proposed in the NPRM for service information for Bombardier, Inc. identified in the ADDRESSES section. addressing the unsafe condition; and Model BD–700–1A11 airplanes. • Do not add any additional burden • Service Bulletin 700–1A11–24–028, Costs of Compliance upon the public than was already Revision 02, dated September 27, 2018. proposed in the NPRM. • Service Bulletin 700–24–5014, The FAA estimates that this AD The FAA also determined that these Revision 02, dated September 27, 2018. affects 112 airplanes of U.S. registry. changes will not increase the economic This service information describes The FAA estimates the following costs burden on any operator or increase the procedures for modifying the routing of to comply with this AD: scope of this final rule. the VFG power feeder cables and

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost on Labor cost Parts cost Cost per product U.S. operators

Up to 5 work-hours × $85 per hour = Up to $425 ...... Up to $606 ...... Up to $1,031 ...... Up to $115,472.

Authority for This Rulemaking Regulatory Findings § 39.13 [Amended] ■ 2. The FAA amends § 39.13 by adding Title 49 of the United States Code This AD will not have federalism the following new airworthiness specifies the FAA’s authority to issue implications under Executive Order directive (AD): rules on aviation safety. Subtitle I, 13132. This AD will not have a section 106, describes the authority of substantial direct effect on the States, on 2019–12–02 Bombardier Inc.: Amendment the relationship between the national 39–19657; Docket No. FAA–2019–0019; the FAA Administrator. Subtitle VII: Product Identifier 2018–NM–130–AD. Aviation Programs, describes in more government and the States, or on the detail the scope of the Agency’s distribution of power and (a) Effective Date authority. responsibilities among the various This AD is effective August 12, 2019. levels of government. The FAA is issuing this rulemaking (b) Affected ADs For the reasons discussed above, I under the authority described in certify that this AD: None. Subtitle VII, Part A, Subpart III, Section (c) Applicability 44701: ‘‘General requirements.’’ Under (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866, This AD applies to Bombardier, Inc., that section, Congress charges the FAA Model BD–700–1A10 and BD–700–1A11 with promoting safe flight of civil (2) Will not affect intrastate aviation in Alaska, and airplanes, certificated in any category, serial aircraft in air commerce by prescribing numbers 9002 through 9831 inclusive, and regulations for practices, methods, and (3) Will not have a significant 9998. economic impact, positive or negative, procedures the Administrator finds (d) Subject necessary for safety in air commerce. on a substantial number of small entities under the criteria of the Regulatory Air Transport Association (ATA) of This regulation is within the scope of America Code 24, Electrical Power. that authority because it addresses an Flexibility Act. unsafe condition that is likely to exist or List of Subjects in 14 CFR Part 39 (e) Reason develop on products identified in this This AD was prompted by reports of low rulemaking action. Air transportation, Aircraft, Aviation clearance between the variable frequency safety, Incorporation by reference, generator (VFG) power feeder cables and This AD is issued in accordance with Safety. adjacent hydraulic lines and/or fuel lines in authority delegated by the Executive the aft equipment bay, which could cause Director, Aircraft Certification Service, Adoption of the Amendment chafing damage. The FAA is issuing this AD to address this unsafe condition, which could as authorized by FAA Order 8000.51C. Accordingly, under the authority In accordance with that order, issuance result in a hydraulic/fuel leak and electrical delegated to me by the Administrator, arcing as an ignition source, and could cause of ADs is normally a function of the the FAA amends 14 CFR part 39 as an in-flight fire. Compliance and Airworthiness follows: Division, but during this transition (f) Compliance period, the Executive Director has PART 39—AIRWORTHINESS Comply with this AD within the delegated the authority to issue ADs DIRECTIVES compliance times specified, unless already applicable to transport category done. airplanes and associated appliances to ■ 1. The authority citation for part 39 (g) Routing Modification the Director of the System Oversight continues to read as follows: Within 24 months after the effective date Division. Authority: 49 U.S.C. 106(g), 40113, 44701. of this AD: Modify the routing of the VFG

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power feeder cables and harnesses in the aft hydraulic lines and/or fuel lines, in information listed in figure 1 to paragraph (g) equipment bay to ensure the required accordance with the Accomplishment of this AD. clearance between the cables and the Instructions of the applicable service

(h) Credit for Previous Actions Flight Standards District Office, as 7367; fax 516–794–5531; email 9-avs-nyaco- (1) This paragraph provides credit for the appropriate. If sending information directly [email protected]. modification required by paragraph (g) of this to the manager of the certification office, (3) Service information identified in this AD for airplanes on which the modification send it to ATTN: Program Manager, AD that is not incorporated by reference is specified in Bombardier Service Bulletin Continuing Operational Safety, FAA, New available at the addresses specified in 700–24–6014 was performed before the York ACO Branch, 1600 Stewart Avenue, paragraphs (k)(3) and (k)(4) of this AD. effective date of this AD using Bombardier Suite 410, Westbury, NY 11590; telephone (k) Material Incorporated by Reference Service Request for Product Support Action 516–228–7300; fax 516–794–5531. Before (SRPSA) 000236314. using any approved AMOC, notify your (1) The Director of the Federal Register (2) This paragraph provides credit for the appropriate principal inspector, or lacking a approved the incorporation by reference modification required by paragraph (g) of this principal inspector, the manager of the local (IBR) of the service information listed in this AD, if the modification was performed before flight standards district office/certificate paragraph under 5 U.S.C. 552(a) and 1 CFR the effective date of this AD using the service holding district office. part 51. information specified in paragraphs (h)(2)(i) (2) Contacting the Manufacturer: For any (2) You must use this service information through (h)(2)(iv) of this AD. requirement in this AD to obtain corrective as applicable to do the actions required by (i) Bombardier Service Bulletin 700–24– actions from a manufacturer, the action must this AD, unless this AD specifies otherwise. be accomplished using a method approved 089, dated April 25, 2018, or Revision 01, (i) Bombardier Service Bulletin 700–1A11– by the Manager, New York ACO Branch, dated August 21, 2018. 24–028, Revision 02, dated September 27, FAA; or Transport Canada Civil Aviation (ii) Bombardier Service Bulletin 700–24– 2018. (TCCA); or Bombardier, Inc.’s TCCA Design 6014, dated April 25, 2018, or Revision 01, (ii) Bombardier Service Bulletin 700–24– Approval Organization (DAO). If approved by dated August 21, 2018. 089, Revision 02, dated September 27, 2018. (iii) Bombardier Service Bulletin 700– the DAO, the approval must include the DAO-authorized signature. (iii) Bombardier Service Bulletin 700–24– 1A11–24–028, dated April 25, 2018, or 5014, Revision 02, dated September 27, 2018. Revision 01, dated August 21, 2018. (j) Related Information (iv) Bombardier Service Bulletin 700–24– (iv) Bombardier Service Bulletin 700–24– 6014, Revision 02, dated September 27, 2018. 5014, dated April 25, 2018, or Revision 01, (1) Refer to Mandatory Continuing (3) For service information identified in dated August 21, 2018. Airworthiness Information (MCAI) Canadian AD CF–2018–22, dated August 2, 2018, for this AD, contact Bombardier, Inc., 400 Coˆte- (i) Other FAA AD Provisions related information. This MCAI may be Vertu Road West, Dorval, Que´bec H4S 1Y9, The following provisions also apply to this found in the AD docket on the internet at Canada; telephone: 514–855–5000; fax: 514– AD: http://www.regulations.gov by searching for 855–7401; email: thd.crj@ (1) Alternative Methods of Compliance and locating Docket No. FAA–2019–0019. aero.bombardier.com; internet: http:// (AMOCs): The Manager, New York ACO (2) For more information about this AD, www.bombardier.com. Branch, FAA, has the authority to approve contact Steven Dzierzynski, Aerospace (4) You may view this service information AMOCs for this AD, if requested using the Engineer, Avionics and Electrical Systems at the FAA, Transport Standards Branch, procedures found in 14 CFR 39.19. In Services Section, FAA, New York ACO 2200 South 216th St., Des Moines, WA. For accordance with 14 CFR 39.19, send your Branch, 1600 Stewart Avenue, Suite 410, information on the availability of this request to your principal inspector or local Westbury, NY 11590; telephone 516–228– material at the FAA, call 206–231–3195.

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(5) You may view this service information at the FAA, Transport Standards Continuing Airworthiness Information, that is incorporated by reference at the Branch, 2200 South 216th St., Des or ‘‘the MCAI’’), to correct an unsafe National Archives and Records Moines, WA. For information on the condition for certain Bombardier, Inc., Administration (NARA). For information on availability of this material at the FAA, Model CL–600–2D15 (Regional Jet the availability of this material at NARA, call 202–741–6030, or go to: http:// call 206–231–3195. It is also available Series 705), CL–600–2D24 (Regional Jet www.archives.gov/federal-register/cfr/ibr- on the internet at http:// Series 900), and CL–600–2E25 (Regional locations.html. www.regulations.gov by searching for Jet Series 1000) airplanes. The MCAI and locating Docket No. FAA–2019– states: Issued in Des Moines, Washington, on June 18, 2019. 0119. Bombardier Aerospace (BA) has informed Michael Kaszycki, Examining the AD Docket Transport Canada that a batch of AFT fuselage fittings were not heat treated to the Acting Director, System Oversight Division, You may examine the AD docket on required material specification. Due to the Aircraft Certification Service. the internet at http:// absence of heat treatment for those parts, the [FR Doc. 2019–14415 Filed 7–5–19; 8:45 am] www.regulations.gov by searching for affected AFT fuselage fittings have very low BILLING CODE 4910–13–P and locating Docket No. FAA–2019– mechanical properties and there is a 0119; or in person at Docket Operations possibility for undetected cracks to develop as a result of mooring operations, which between 9 a.m. and 5 p.m., Monday DEPARTMENT OF TRANSPORTATION could lead to aircraft structural failure. through Friday, except Federal holidays. This [Canadian] AD mandates the removal Federal Aviation Administration The AD docket contains this final rule, and replacement of the affected AFT fuselage the regulatory evaluation, any fittings. 14 CFR Part 39 comments received, and other You may examine the MCAI in the information. The address for Docket AD docket on the internet at http:// [Docket No. FAA–2019–0119; Product Operations is U.S. Department of www.regulations.gov by searching for Identifier 2018–NM–156–AD; Amendment Transportation, Docket Operations, M– 39–19663; AD 2019–12–08] and locating Docket No. FAA–2019– 30, West Building Ground Floor, Room 0119. RIN 2120–AA64 W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. Comments Airworthiness Directives; Bombardier, FOR FURTHER INFORMATION CONTACT: Aziz The FAA gave the public the Inc., Airplanes Ahmed, Aerospace Engineer, FAA, New opportunity to participate in developing AGENCY: Federal Aviation York ACO Branch, 1600 Stewart this final rule. The FAA has considered Administration (FAA), Department of Avenue, Suite 410, Westbury, New York the comment received. The commenter Transportation (DOT). 11590; telephone: 516–287–7329; fax: indicated support for the NPRM. 516–794–5531; email: Aziz.Ahmed@ ACTION: Final rule. Conclusion faa.gov. The FAA reviewed the relevant data, SUMMARY: The FAA is adopting a new SUPPLEMENTARY INFORMATION: airworthiness directive (AD) for certain considered the comment received, and Bombardier, Inc., Model CL–600–2D15 Discussion determined that air safety and the (Regional Jet Series 705), CL–600–2D24 The FAA issued a notice of proposed public interest require adopting this (Regional Jet Series 900), and CL–600– rulemaking (NPRM) to amend 14 CFR final rule as proposed, except for minor 2E25 (Regional Jet Series 1000) part 39 by adding an AD that would editorial changes. The FAA has airplanes. This AD was prompted by apply to certain Bombardier, Inc., Model determined that these minor changes: • Are consistent with the intent that reports that certain aft fuselage fittings CL–600–2D15 (Regional Jet Series 705), was proposed in the NPRM for are susceptible to cracking because they CL–600–2D24 (Regional Jet Series 900), were not manufactured correctly. This addressing the unsafe condition; and and CL–600–2E25 (Regional Jet Series • Do not add any additional burden AD requires replacement of those 1000) airplanes. The NPRM published fittings with correctly manufactured upon the public than was already in the Federal Register on March 12, proposed in the NPRM. parts, an eddy current inspection of 2019 (84 FR 8832). The NPRM was certain fastener holes for cracking, and prompted by reports that certain aft Related Service Information Under 1 corrective actions if necessary. The FAA fuselage fittings are susceptible to CFR Part 51 is issuing this AD to address the unsafe cracking because they were not Bombardier has issued Service condition on these products. manufactured correctly. The NPRM Bulletin 670BA–53–056, dated February DATES: This AD is effective August 12, proposed to require replacement of 11, 2016. This service information 2019. those fittings with correctly describes, among other actions, The Director of the Federal Register manufactured parts, an eddy current procedures for removal and replacement approved the incorporation by reference inspection of certain fastener holes for of the aft fuselage fittings, and an eddy of a certain publication listed in this AD cracking, and corrective actions if current inspection of certain fastener as of August 12, 2019. necessary. holes for cracking. ADDRESSES: For service information The FAA is issuing this AD to address This service information is reasonably identified in this final rule, contact the possibility of undetected cracks available because the interested parties Bombardier, Inc., 400 Coˆte-Vertu Road developing in the aft fuselage fittings have access to it through their normal West, Dorval, Que´bec H4S 1Y9, Canada; due to the absence of heat treatment, course of business or by the means Widebody Customer Response Center which could lead to aircraft structural identified in the ADDRESSES section. North America toll-free telephone 1– failure. 866–538–1247 or direct-dial telephone Transport Canada Civil Aviation Costs of Compliance 1–514–855–2999; fax 514–855–7401; (TCCA), which is the aviation authority The FAA estimates that this AD email [email protected]; for Canada, has issued Canadian AD affects 12 airplanes of U.S. registry. The internet http://www.bombardier.com. CF–2018–25, dated October 3, 2018 FAA estimates the following costs to You may view this service information (referred to after this as the Mandatory comply with this AD:

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ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Cost on U.S. Labor cost Parts cost product operators

5 work-hours × $85 per hour = $425 ...... (*) $425 * $5,100 * * Parts cost unavailable.

The FAA has received no definitive (3) Will not have a significant (f) Compliance data that would enable us to provide economic impact, positive or negative, Comply with this AD within the cost estimates for the on-condition on a substantial number of small entities compliance times specified, unless already actions specified in this AD. under the criteria of the Regulatory done. Flexibility Act. Authority for This Rulemaking (g) Required Actions Title 49 of the United States Code List of Subjects in 14 CFR Part 39 Within 8,800 flight hours after the effective specifies the FAA’s authority to issue Air transportation, Aircraft, Aviation date of this AD, remove all aft fuselage safety, Incorporation by reference, fittings, replace with new aft fuselage fittings, rules on aviation safety. Subtitle I, and do an eddy current inspection of the section 106, describes the authority of Safety. fastener holes of frame FS1162.00 and the FAA Administrator. Subtitle VII: Adoption of the Amendment stringers 17L, 17R, and 18L for cracking, in Aviation Programs, describes in more accordance with Part C of the detail the scope of the Agency’s Accordingly, under the authority Accomplishment Instructions of Bombardier authority. delegated to me by the Administrator, Service Bulletin 670BA–53–056, dated The FAA is issuing this rulemaking the FAA amends 14 CFR part 39 as February 11, 2016. follows: under the authority described in (h) Corrective Action for Cracking Subtitle VII, Part A, Subpart III, Section 44701: ‘‘General requirements.’’ Under PART 39—AIRWORTHINESS If any crack is found during any inspection DIRECTIVES required by paragraph (g) of this AD: Before that section, Congress charges the FAA further flight, repair using a method with promoting safe flight of civil ■ 1. The authority citation for part 39 approved by the Manager, New York ACO aircraft in air commerce by prescribing continues to read as follows: Branch, FAA; or Transport Canada Civil regulations for practices, methods, and Aviation (TCCA); or Bombardier, Inc.’s TCCA procedures the Administrator finds Authority: 49 U.S.C. 106(g), 40113, 44701. Design Approval Organization (DAO). If necessary for safety in air commerce. § 39.13 [Amended] approved by the DAO, the approval must This regulation is within the scope of include the DAO-authorized signature. ■ 2. The FAA amends § 39.13 by adding that authority because it addresses an the following new airworthiness (i) Other FAA AD Provisions unsafe condition that is likely to exist or directive (AD): The following provisions also apply to this develop on products identified in this AD: rulemaking action. 2019–12–08 Bombardier, Inc.: Docket No. (1) Alternative Methods of Compliance This AD is issued in accordance with FAA–2019–0119; Product Identifier (AMOCs): The Manager, New York ACO authority delegated by the Executive 2018–NM–156–AD. Branch, FAA, has the authority to approve Director, Aircraft Certification Service, (a) Effective Date AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In as authorized by FAA Order 8000.51C. This AD is effective August 12, 2019. In accordance with that order, issuance accordance with 14 CFR 39.19, send your of ADs is normally a function of the (b) Affected ADs request to your principal inspector or local None. Flight Standards District Office, as Compliance and Airworthiness appropriate. If sending information directly Division, but during this transition (c) Applicability to the manager of the certification office, period, the Executive Director has This AD applies to Bombardier, Inc., send it to ATTN: Program Manager, delegated the authority to issue ADs airplanes, certificated in any category, as Continuing Operational Safety, FAA, New applicable to transport category identified in paragraphs (c)(1) and (c)(2) of York ACO Branch, 1600 Stewart Avenue, airplanes and associated appliances to this AD. Suite 410, Westbury, NY 11590; telephone the Director of the System Oversight (1) Model CL–600–2D15 (Regional Jet 516–228–7300; fax 516–794–5531. Before Division. Series 705) and CL–600–2D24 (Regional Jet using any approved AMOC, notify your Series 900) airplanes, serial numbers (S/Ns) appropriate principal inspector, or lacking a Regulatory Findings 15336 through 15343 inclusive, 15351, and principal inspector, the manager of the local This AD will not have federalism 15358 through 15362 inclusive. flight standards district office/certificate holding district office. implications under Executive Order (2) Model CL–600–2E25 (Regional Jet Series 1000) airplanes, S/N 19041. (2) Contacting the Manufacturer: For any 13132. This AD will not have a requirement in this AD to obtain corrective substantial direct effect on the States, on (d) Subject actions from a manufacturer, the action must the relationship between the national Air Transport Association (ATA) of be accomplished using a method approved government and the States, or on the America Code 53, Fuselage. by the Manager, New York ACO Branch, FAA; or TCCA; or Bombardier, Inc.’s TCCA distribution of power and (e) Reason responsibilities among the various DAO. If approved by the DAO, the approval levels of government. This AD was prompted by reports that must include the DAO-authorized signature. certain aft fuselage fittings are susceptible to For the reasons discussed above, I cracking because they were not manufactured (j) Related Information certify that this AD: correctly. The FAA is issuing this AD to (1) Refer to Mandatory Continuing (1) Is not a ‘‘significant regulatory address the possibility of undetected cracks Airworthiness Information (MCAI) Canadian action’’ under Executive Order 12866, developing in the aft fuselage fittings due to AD CF–2018–25, dated October 3, 2018, for (2) Will not affect intrastate aviation the absence of heat treatment, which could related information. This MCAI may be in Alaska, and lead to aircraft structural failure. found in the AD docket on the internet at

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http://www.regulations.gov by searching for Agency) is announcing the availability manner detailed (see ‘‘Written/Paper and locating Docket No. FAA–2019–0119. of an immediately in effect guidance for Submissions’’ and ‘‘Instructions’’). (2) For more information about this AD, industry entitled ‘‘Compliance Policy Written/Paper Submissions contact Aziz Ahmed, Aerospace Engineer, for Certain Compounding of Oral FAA, New York ACO Branch, 1600 Stewart Submit written/paper submissions as Avenue, Suite 410, Westbury, New York Oxitriptan (5-HTP) Drug Products for Patients With Tetrahydrobiopterin follows: 11590; telephone: 516–287–7329; fax: 516– • Mail/Hand delivery/Courier (for 794–5531; email: [email protected]. (BH4) Deficiency.’’ This guidance describes FDA’s policy concerning the written/paper submissions): Dockets (k) Material Incorporated by Reference conditions under which the Agency Management Staff (HFA–305), Food and (1) The Director of the Federal Register does not generally intend to take Drug Administration, 5630 Fishers approved the incorporation by reference regulatory action against a licensed Lane, Rm. 1061, Rockville, MD 20852. (IBR) of the service information listed in this • pharmacist in a State-licensed pharmacy For written/paper comments paragraph under 5 U.S.C. 552(a) and 1 CFR submitted to the Dockets Management part 51. or Federal facility or a licensed physician using the bulk drug substance Staff, FDA will post your comment, as (2) You must use this service information well as any attachments, except for as applicable to do the actions required by oxitriptan (also known as 5- information submitted, marked and this AD, unless this AD specifies otherwise. hydroxytryptophan or 5-HTP) to identified, as confidential, if submitted (i) Bombardier Service Bulletin 670BA–53– compound oral drug products for 056, dated February 11, 2016. as detailed in ‘‘Instructions.’’ patients with tetrahydrobiopterin (BH4) Instructions: All submissions received (ii) [Reserved] deficiency. FDA developed this (3) For service information identified in must include the Docket No. FDA– this AD, contact Bombardier, Inc., 400 Coˆte- guidance in response to 2019–D–2733 for ‘‘Compliance Policy Vertu Road West, Dorval, Que´bec H4S 1Y9, communications from pharmacists and With Respect to Certain Compounding Canada; Widebody Customer Response caregivers regarding the use of of Oral Oxitriptan (5-HTP) Drug Center North America toll-free telephone 1– oxitriptan to treat patients with BH4 Products for Patients With 866–538–1247 or direct-dial telephone 1– deficiency following issuance of a final Tetrahydrobiopterin (BH4) Deficiency.’’ 514–855–2999; fax 514–855–7401; email rule that placed oxitriptan on the list of [email protected]; internet http:// Received comments will be placed in substances that cannot be used to the docket and, except for those www.bombardier.com. compound drug products in accordance (4) You may view this service information submitted as ‘‘Confidential at the FAA, Transport Standards Branch, with certain compounding provisions of Submissions,’’ publicly viewable at 2200 South 216th St., Des Moines, WA. For the Federal Food, Drug, and Cosmetic https://www.regulations.gov or at the information on the availability of this Act (FD&C Act). Dockets Management Staff between 9 material at the FAA, call 206–231–3195. DATES: The announcement of the a.m. and 4 p.m., Monday through (5) You may view this service information guidance is published in the Federal Friday. that is incorporated by reference at the Register on July 8, 2019. • Confidential Submissions—To National Archives and Records submit a comment with confidential Administration (NARA). For information on ADDRESSES: You may submit either information that you do not wish to be the availability of this material at NARA, call electronic or written comments on 202–741–6030, or go to: http:// made publicly available, submit your Agency guidances at any time as comments only as a written/paper www.archives.gov/federal-register/cfr/ibr- follows: locations.html. submission. You should submit two Issued in Des Moines, Washington, on June Electronic Submissions copies total. One copy will include the information you claim to be confidential 18, 2019. Submit electronic comments in the Michael Kaszycki, with a heading or cover note that states following way: ‘‘THIS DOCUMENT CONTAINS Acting Director, System Oversight Division, • Federal eRulemaking Portal: Aircraft Certification Service. CONFIDENTIAL INFORMATION.’’ The https://www.regulations.gov. Follow the Agency will review this copy, including [FR Doc. 2019–14416 Filed 7–5–19; 8:45 am] instructions for submitting comments. the claimed confidential information, in BILLING CODE 4910–13–P Comments submitted electronically, its consideration of comments. The including attachments, to https:// second copy, which will have the www.regulations.gov will be posted to claimed confidential information DEPARTMENT OF HEALTH AND the docket unchanged. Because your redacted/blacked out, will be available HUMAN SERVICES comment will be made public, you are for public viewing and posted on solely responsible for ensuring that your Food and Drug Administration https://www.regulations.gov. Submit comment does not include any both copies to the Dockets Management confidential information that you or a 21 CFR Part 216 Staff. If you do not wish your name and third party may not wish to be posted, contact information to be made publicly [Docket No. FDA–2019–D–2733] such as medical information, your or available, you can provide this anyone else’s Social Security number, or information on the cover sheet and not Compliance Policy for Certain confidential business information, such in the body of your comments and you Compounding of Oral Oxitriptan (5- as a manufacturing process. Please note must identify this information as HTP) Drug Products for Patients With that if you include your name, contact ‘‘confidential.’’ Any information marked Tetrahydrobiopterin (BH4) Deficiency; information, or other information that as ‘‘confidential’’ will not be disclosed Immediately in Effect Guidance for identifies you in the body of your except in accordance with 21 CFR 10.20 Industry; Availability comments, that information will be and other applicable disclosure law. For posted on https://www.regulations.gov. AGENCY: Food and Drug Administration, more information about FDA’s posting • HHS. If you want to submit a comment of comments to public dockets, see 80 ACTION: Notification of availability. with confidential information that you FR 56469, September 18, 2015, or access do not wish to be made available to the the information at: https://www.gpo.gov/ SUMMARY: The Food and Drug public, submit the comment as a fdsys/pkg/FR-2015-09-18/pdf/2015- Administration (FDA, we, or the written/paper submission and in the 23389.pdf.

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Docket: For access to the docket to FD&C Act (21 U.S.C. 355, 351(a)(2)(B), deficiency during its initial review of read background documents or the and 352(f)(1))). One of the conditions this substance for the 503A Bulks List. electronic and written/paper comments that must be met for a compounded Thus, this guidance addresses the received, go to https:// drug product to qualify for these conditions under which FDA does not www.regulations.gov and insert the exemptions is that a licensed intend to take regulatory action against docket number, found in brackets in the pharmacist or licensed physician a licensed pharmacist in a State- heading of this document, into the compounds the drug product using bulk licensed pharmacy or Federal facility or ‘‘Search’’ box and follow the prompts drug substances that: (1) Comply with a licensed physician for the use of bulk and/or go to the Dockets Management the standards of an applicable United oxitriptan to compound oral drug Staff, 5630 Fishers Lane, Rm. 1061, States Pharmacopoeia (USP) or National products for the treatment of identified Rockville, MD 20852. Formulary (NF) monograph, if a individual patients with BH4 deficiency You may submit comments on any monograph exists, and the USP chapter provided certain conditions are met. In guidance at any time (see 21 CFR on pharmacy compounding; (2) if such light of the new information regarding 10.115(g)(5)). a monograph does not exist, are drug use of oral oxitriptan to treat BH4 Submit written requests for single substances that are components of drugs deficiency, FDA is considering whether copies of the guidance to the Office of approved by FDA; or (3) if such a to reevaluate the exclusion of oxitriptan Communications, Division of Drug monograph does not exist and the drug from the 503A Bulks List. Information, Center for Drug Evaluation substance is not a component of a drug FDA is issuing this guidance and Research, Food and Drug approved by FDA, appear on a list of consistent with our good guidance Administration, 10001 New Hampshire bulk drug substances developed by FDA practices (GGP) regulation (21 CFR Ave., Hillandale Bldg., 4th Floor, Silver through regulation. (See section 10.115). We are implementing this Spring, MD 20993–0002, 855–543–3784 503A(b)(1)(A)(i) of the FD&C Act.) guidance without prior public comment or 301–796–3400; Fax: 301–431–6353, On February 19, 2019, FDA issued a because we have determined that prior email: [email protected]. Send two final rule (84 FR 4696) (‘‘February 19, public participation is not feasible or self-addressed adhesive labels to assist 2019, final rule’’), which established the appropriate due to the public health that office in processing your requests. list of bulk drug substances that can be need for patients with BH4 deficiency to See the SUPPLEMENTARY INFORMATION used to compound drug products under access compounded oxitriptan oral drug section for electronic access to the section 503A of the FD&C Act even products (21 CFR 10.115(g)(2)). This guidance document. though they are not the subject of an guidance does not establish any rights applicable USP or NF monograph or a FOR FURTHER INFORMATION CONTACT: for any person and is not binding on component of an FDA approved drug Tracy Rupp, Center for Drug Evaluation FDA or the public. Although this product (the 503A Bulks List). (See and Research, Food and Drug guidance is immediately in effect, it section 503A(b)(1)(A) of the FD&C Act.) Administration, 10903 New Hampshire remains subject to comment in The final rule, codified at § 216.23 (21 accordance with FDA’s GGP regulation. Ave., Bldg. 51, Rm. 5171, Silver Spring, CFR 216.23), placed six bulk drug MD 20993, 240–402–0260. This guidance is not subject to substances on the 503A Bulks List Executive Order 12866. SUPPLEMENTARY INFORMATION: (§ 216.23(a)), and identified four others, I. Background including oxitriptan, that cannot be II. Electronic Access used to compound drug products under Persons with access to the internet FDA is announcing the availability of section 503A of the FD&C Act may obtain the document at either an immediately in effect guidance for (§ 216.23(b)). Additional bulk drug https://www.fda.gov/Regulatory industry entitled ‘‘Compliance Policy substances nominated by the public for Information/Guidances/default.htm or for Certain Compounding of Oral inclusion on this list are currently under https://www.regulations.gov. Use the Oxitriptan (5-HTP) Drug Products for consideration and will be the subject of FDA website listed in the previous Patients With Tetrahydrobiopterin future rulemaking. sentence to find the most current (BH4) Deficiency.’’ This guidance FDA developed this guidance in version of the guidance. describes FDA’s policy concerning the response to communications from conditions under which the Agency pharmacists and caregivers regarding Dated: July 1, 2019. does not generally intend to take the use of oxitriptan to treat patients Lowell J. Schiller, regulatory action against a licensed with BH4 deficiency following issuance Principal Associate Commissioner for Policy. pharmacist in a State-licensed pharmacy of the February 19, 2019, final rule, [FR Doc. 2019–14355 Filed 7–5–19; 8:45 am] or Federal facility or a licensed which placed oxitriptan on the list of BILLING CODE 4164–01–P physician using the bulk drug substance bulk drug substances that cannot be oxitriptan to compound oral drug used to compound drug products under products for patients with BH4 section 503A of the FD&C Act. DEPARTMENT OF HOMELAND deficiency. According to those communications and SECURITY Section 503A of the FD&C Act (21 other information available to the U.S.C. 353a) describes the conditions Agency, oxitriptan is the standard of Coast Guard that must be satisfied for human drug care for the treatment of BH4 deficiency, products compounded by a licensed which is caused by several different rare 33 CFR Part 110 pharmacist in a State-licensed pharmacy enzyme defects that result from gene [Docket Number USCG–2016–0989] or Federal facility, or by a licensed mutations. BH4 deficiency is also physician to qualify for exemptions known as: Primary tetrahydrobiopterin RIN 1625–AA01 from certain requirements of the FD&C deficiency, atypical phenylketonuria Act related to FDA approval prior to (PKU), GTP cyclohydrolase (GTPCH) Anchorage Regulations; marketing, current good manufacturing deficiency, 6-pyruvoyl-tetrahydropterin Passagassawakeag River, Belfast, ME practice requirements, and labeling with synthase (6-PTPS) deficiency, and AGENCY: Coast Guard, DHS. adequate directions for use (see sections dihydropteridine reductase (DHPR) ACTION: Final rule. 505, 501(a)(2)(B), and 502(f)(1) of the deficiency. FDA did not consider BH4

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SUMMARY: The Coast Guard is reasons discussed below, the Coast obstructions. The town of Belfast has establishing two special anchorage areas Guard is making no changes to this rule operated these areas as managed in the Passagassawakeag River in the from the proposed rule. mooring fields for decades and places vicinity of Belfast, ME. This proposed the moorings around the charted III. Legal Authority and Need for Rule action is necessary to facilitate safe obstructions. The regulatory text navigation in that area and provide safe The Coast Guard is issuing this rule appears at the end of this document. In and secure anchorages for vessels less under authority in 33 U.S.C. 471, 2071; our note to § 110.4(d), we state that all than 65 feet in length. This action is 46 U.S.C. 70034 (previously 33 U.S.C. coordinates referenced use datum NAD intended to increase the safety of life 1231). Commander, First Coast Guard 83 and that all anchoring in the areas is and property in the Passagassawakeag District has determined that this rule under the supervision of the town of River in the vicinity of Belfast, improve will reduce the risk of vessel collisions Belfast harbormaster or other such the safety of anchored vessels, and by creating two special anchorage areas authority as may be designated by the provide for the overall safe and efficient in the Passagassawakeag River in the authorities of the Town of Belfast, flow of vessel traffic and commerce. vicinity of the northeastern portion of Maine. Mariners using these special DATES: This rule is effective August 7, Belfast, ME. The purpose of this rule is anchorage areas are encouraged to 2019. to increase the safety of life and contact local and state authorities, such property in the Passagassawakeag River ADDRESSES: To view documents as the local harbormaster, to ensure in the vicinity of Belfast, improve the compliance with any additional mentioned in this preamble as being safety of anchored vessels, and provide available in the docket, go to http:// applicable state and local laws. for the overall safe and efficient flow of Additionally during the www.regulations.gov, type USCG–2016– vessel traffic and commerce. 0989 in the ‘‘SEARCH’’ box and click environmental review process the Coast ‘‘SEARCH.’’ Click on Open Docket IV. Discussion of Comments, Changes, Guard received comments from the Folder on the line associated with this and the Rule NOAA Habitat Conservation Division. rule. This rule establishes two special The comments, authored by a NOAA FOR FURTHER INFORMATION CONTACT: If anchorage areas, referred to as special Marine Habitat Resource Specialist, you have questions about this proposed anchorage areas A and B, in the recommended an eelgrass survey be rulemaking, contact Mr. Craig Lapiejko, Passagassawakeag River in the vicinity conducted to determine the presence of Waterways Management at First Coast of Belfast, ME. Special anchorage area A eelgrass beds. Additionally, the Marine Guard District, telephone (617) 223– is approximately 554,800 sq. yards and Habitat Resource Specialist 8351, email [email protected]. is on the north side of the river located recommended the moorings be SUPPLEMENTARY INFORMATION: between the mouth of the Goose River converted to conservation moorings that use a floating pendant in lieu of chains I. Table of Abbreviations and Patterson Pt, downstream of the US RT 1 Bridge. Special anchorage area B to prevent damage to eelgrass beds. CFR Code of Federal Regulations is approximately 693,889 sq. yards and An eelgrass study was conducted by DHS Department of Homeland Security located along the southern shores of the the City of Belfast in October, 2018. The FR Federal Register study concluded there was no eelgrass NOAA National Oceanic and Atmospheric river located between the Belfast Town docks to Belfast City Park. within the proposed area. The City of Administration Belfast expressed their intention to NPRM Notice of proposed rulemaking Vessels less than 65 feet in length, § Section when at anchor in these special continuously monitor the area for U.S.C. United States Code anchorage areas, will not be required to potential eelgrass growth. sound signals or display anchorage II. Background Information and V. Regulatory Analyses lights or shapes when at anchor. Regulatory History Additionally, mariners using these We developed this rule after In March 2016, the harbormaster anchorage areas are encouraged to considering numerous statutes and submitted a draft proposal to the Belfast contact local and state authorities, such Executive Orders related to rulemaking. City Council and subsequently the town as the local harbormaster, to ensure Below we summarize our analysis based began talks with Coast Guard Sector compliance with any additional on those statutes and Executive Orders, Northern New England regarding applicable state and local laws. Such and we discuss First Amendment rights establishment of a special anchorage laws may involve, for example, of protestors. area in Belfast. Subsequently, the Town compliance with direction from the A. Regulatory Planning and Review of Belfast, ME Harbor Committee and local harbormaster when placing or the Belfast harbormaster petitioned using moorings within the anchorage. Executive Orders 12866 and 13563 Coast Guard Sector Northern New The Coast Guard received one direct agencies to assess the costs and England to designate a special comment on our NPRM published on benefits of available regulatory anchorage area in the Passagassawakeag October 3, 2017. There are no changes alternatives and, if regulation is River, in the vicinity of Belfast, ME. In in the regulatory text of this rule from necessary, to select regulatory response, on October 3, 2017, the Coast the proposed rule in the NPRM. approaches that maximize net benefits. Guard published a NPRM titled The one comment was authored by a Executive Order 13771 directs agencies ‘‘Special Anchorage Areas; NOAA cartographer who wanted to to control regulatory costs through a Passagassawakeag River, Belfast Bay, make the Coast Guard aware of charted budgeting process. This rule has not Belfast, Maine’’ (82 FR 46004). There, features within the proposed special been designated a ‘‘significant we stated why we issued the NPRM, anchorage areas. Specifically, a charted regulatory action,’’ under Executive and invited comments on our proposed obstruction (Obstn) feature within Order 12866. Accordingly, this rule has regulatory action related to establishing special anchorage area A and a charted not been reviewed by the Office of two special anchorages in the pier (jetty) in ruins within special Management and Budget (OMB), and Passagassawakeag River. During the anchorage area B. pursuant to OMB guidance it is exempt comment period that ended December 4, The Coast Guard and Belfast from the requirements of Executive 2017, we received one comment. For the harbormaster are aware of the charted Order 13771.

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This regulatory action determination Paperwork Reduction Act of 1995 (44 Planning Implementing Procedures is based on the fact that vessel U.S.C. 3501–3520). 5090.1. A Record of Environmental movement in the area will not be D. Federalism and Indian Tribal Consideration supporting this affected. Additionally, those using the Governments determination is available in the docket waterway will see no adverse changes to where indicated under ADDRESSES. how the waterway presently operates. A rule has implications for federalism under Executive Order 13132, PART 110—ANCHORAGE B. Impact on Small Entities Federalism, if it has a substantial direct REGULATIONS The Regulatory Flexibility Act of effect on the States, on the relationship between the national government and 1980, 5 U.S.C. 601–612, as amended, ■ 1. The authority citation for part 110 the States, or on the distribution of requires Federal agencies to consider continues to read as follows: the potential impact of regulations on power and responsibilities among the small entities during rulemaking. The various levels of government. We have Authority: 33 U.S.C. 471, 2071; 46 U.S.C. term ‘‘small entities’’ comprises small analyzed this rule under that Order and 70034; 33 CFR 1.05–1; Department of businesses, not-for-profit organizations have determined that it is consistent Homeland Security Delegation No. 0170.1. with the fundamental federalism that are independently owned and ■ principles and preemption requirements 2. Amend § 110.4 by adding paragraph operated and are not dominant in their (d) to read as follows: fields, and governmental jurisdictions described in Executive Order 13132. with populations of less than 50,000. Also, this rule does not have tribal § 110.4 Penobscot Bay, Maine. implications under Executive Order The Coast Guard received no comments * * * * * from the Small Business Administration 13175, Consultation and Coordination on this rulemaking. The Coast Guard with Indian Tribal Governments, (d) Passagassawakeag River, Belfast certifies under 5 U.S.C. 605(b) that this because it does not have a substantial Bay, Belfast, Maine—(1) Special rule will not have a significant direct effect on one or more Indian anchorage area A. All of the waters economic impact on a substantial tribes, on the relationship between the enclosed by a line beginning at latitude number of small entities. Federal Government and Indian tribes, 44°25′23″ N, longitude 068°58′55″ W; or on the distribution of power and ° ′ ″ While some owners or operators of thence to latitude 44 25 30 N, responsibilities between the Federal vessels intending to transit the longitude 068°58′48″ W; thence to Government and Indian tribes. If you Passagassawakeag River in Belfast, ME latitude 44°25′33″ N, longitude believe this rule has implications for may be small entities, for the reasons 068°59′15″ W; thence to latitude federalism or Indian tribes, please stated above in section V.A above, this 44°25′39″ N, longitude 068°59′17″ W; contact the person listed in the FOR rule will not have a significant thence to latitude 44°25′48″ N, FURTHER INFORMATION CONTACT section. economic impact on any vessel owner longitude 068°59′57″ W; thence to or operator. E. Unfunded Mandates Reform Act latitude 44°25′46″ N, longitude ° ′ ″ Under section 213(a) of the Small The Unfunded Mandates Reform Act 069 00 08 W; thence to the point of Business Regulatory Enforcement of 1995 (2 U.S.C. 1531–1538) requires beginning. Fairness Act of 1996 (Pub. L. 104–121), Federal agencies to assess the effects of (2) Special anchorage area B. All of we want to assist small entities in their discretionary regulatory actions. In the waters enclosed by a line beginning understanding this rule. If the rule particular, the Act addresses actions at latitude 44°25′17″ N, longitude would affect your small business, that may result in the expenditure by a 068°59′00″ W; thence to latitude organization, or governmental State, local, or tribal government, in the 44°24′56″ N, longitude 068°59′23″ W; jurisdiction and you have questions aggregate, or by the private sector of ° ′ ″ concerning its provisions or options for thence to latitude 44 25 20 N, $100,000,000 (adjusted for inflation) or longitude 068°59′38″ W; thence to compliance, please contact the person more in any one year. Though this rule ° ′ ″ listed in the FOR FURTHER INFORMATION latitude 44 25 44 N, longitude will not result in such an expenditure, 069°00′09″ W; thence to the point of CONTACT section. we do discuss the effects of this rule beginning. Small businesses may send comments elsewhere in this preamble. on the actions of Federal employees Note to § 110.4(d): All coordinates who enforce, or otherwise determine F. Environment referenced use datum: NAD 83. All anchoring compliance with, Federal regulations to We have analyzed this rule under in the areas is under the supervision of the the Small Business and Agriculture Department of Homeland Security town of Belfast harbormaster or other such Regulatory Enforcement Ombudsman Directive 023–01 and Environmental authority as may be designated by the and the Regional Small Business Planning COMDTINST 5090.1 (series), authorities of the Town of Belfast, Maine. Regulatory Fairness Boards. The which guides the Coast Guard in Mariners using these special anchorage areas Ombudsman evaluates these actions complying with the National are encouraged to contact local and state annually and rates each agency’s Environmental Policy Act of 1969 (42 authorities, such as the local harbormaster, to responsiveness to small business. If you U.S.C. 4321–4370f), and have ensure compliance with any additional wish to comment on actions by determined that this action is one of a applicable state and local laws. employees of the Coast Guard, call 1– category of actions that do not 888–REG–FAIR (1–888–734–3247). The individually or cumulatively have a Dated: June 28, 2019. Coast Guard will not retaliate against significant effect on the human A.J. Tiongson, small entities that question or complain environment. This rule involves the Rear Admiral, U.S. Coast Guard, Commander, about this rule or any policy or action establishment of two special anchorage First Coast Guard District. of the Coast Guard. areas in the Passagassawakeag River in [FR Doc. 2019–14428 Filed 7–5–19; 8:45 am] the vicinity of northeastern Belfast, ME. C. Collection of Information BILLING CODE 9110–04–P It is categorically excluded from further This rule will not call for a new review under paragraph L59 (a) in Table collection of information under the 3–1 of U.S. Coast Guard Environmental

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DEPARTMENT OF HOMELAND comment when the agency for good detailed description of the location. The SECURITY cause finds that those procedures are duration of the zone is intended to ‘‘impracticable, unnecessary, or contrary ensure the safety of participants and Coast Guard to the public interest.’’ Under 5 U.S.C. vessels on these navigable waters before, 553(b)(B), the Coast Guard finds that during, and after the swim event 33 CFR Part 165 good cause exists for not publishing a scheduled from 6 p.m. to 8 p.m. on July [Docket Number USCG–2019–0537] notice of proposed rulemaking (NPRM) 14, 2019. No person or vessel will be with respect to this rule because it is permitted to enter, transit through, RIN 1625–AA00 impracticable and contrary to the public anchor in, or remain within the safety interest to do so. There is insufficient zone without obtaining permission from Safety Zone; New Jersey Intracoastal time to allow for a reasonable comment the COTP Delaware Bay or a designated Waterway, Atlantic City, NJ period prior to the date of the event. We representative. If the COTP Delaware AGENCY: Coast Guard, DHS. are taking immediate action to ensure Bay or a designated representative the safety of participants and the general grants authorization to enter, transit ACTION: Temporary final rule. public from hazards associated with through, anchor in, or remain within the SUMMARY: The Coast Guard is non-participant vessel movement near safety zone, all persons and vessels establishing a temporary safety zone for the swim event. It is impracticable and receiving such authorization must certain navigable waters of the New contrary to the public interest to publish comply with the instructions of the Jersey Intracoastal Waterway. The safety an NPRM because we must establish COTP Delaware Bay or a designated zone is needed to protect participants of this safety zone by July 14, 2019. representative. The Coast Guard will Under 5 U.S.C. 553(d)(3), the Coast the Jim Whelan Open Water Festival on provide public notice of the safety zone Guard finds that good cause exists for these navigable waters near Atlantic by Local Notice to Mariners and making this rule effective less than 30 City, NJ, during a swim event on July Broadcast Notice to Mariners. days after publication in the Federal 14, 2019. This regulation prohibits non- Register. Delaying the effective date of V. Regulatory Analyses participant persons and vessels from this rule would be impracticable and We developed this rule after entering, transiting through, anchoring contrary to the public interest because considering numerous statutes and in, or remaining within the safety zone the rule must be in effect by July 14, Executive orders related to rulemaking. unless authorized by the Captain of the 2019, to mitigate the potential safety Below we summarize our analyses Port (COTP) Delaware Bay or a hazards associated with the swim event. based on a number of these statutes and designated representative. Executive orders, and we discuss First DATES: This rule is effective from 5 p.m. III. Legal Authority and Need for Rule Amendment rights of protestors. through 9 p.m. on July 14, 2019. The Coast Guard is issuing this rule A. Regulatory Planning and Review ADDRESSES: To view documents under authority in 46 U.S.C. 70034 mentioned in this preamble as being (previously 33 U.S.C. 1231). Green Executive Orders 12866 and 13563 available in the docket, go to https:// Whales Inc. notified the Coast Guard direct agencies to assess the costs and www.regulations.gov, type USCG–2019– that it will host the inaugural Jim benefits of available regulatory 0537 in the ‘‘SEARCH’’ box and click Whelan Open Water Festival on July 14, alternatives and, if regulation is ‘‘SEARCH.’’ Click on Open Docket 2019. The event will include a 400- necessary, to select regulatory Folder on the line associated with this meter swim with up to 50 participants approaches that maximize net benefits. rule. and a 2-kilometer swim with up to 150 Executive Order 13771 directs agencies to control regulatory costs through a FOR FURTHER INFORMATION CONTACT: If participants. The swim courses are on budgeting process. This rule has not you have questions about this rule, call the waters of the New Jersey Intracoastal been designated a ‘‘significant or email Petty Officer Thomas Welker, Waterway in Atlantic City, NJ. The regulatory action,’’ under Executive U.S. Coast Guard Sector Delaware Bay, Captain of the Port Delaware Bay Order 12866. Accordingly, this rule has Waterways Management Division; (COTP) has determined that potential not been reviewed by the Office of telephone 215–271–4814, email hazards associated with this swim event Management and Budget (OMB), and [email protected]. scheduled for July 14, 2019, will be a safety concern for participants and for pursuant to OMB guidance it is exempt SUPPLEMENTARY INFORMATION: vessels operating within the specified from the requirements of Executive I. Table of Abbreviations waters of the New Jersey Intracoastal Order 13771. Waterway. The purpose of this The impact of this rule is not CFR Code of Federal Regulations rulemaking is to protect participants, significant for the following reasons: (1) COTP Captain of the Port The enforcement period will last four DHS Department of Homeland Security spectators, and transiting vessels on FR Federal Register certain waters of the New Jersey hours when vessel traffic is usually low; NPRM Notice of proposed rulemaking Intracoastal Waterway before, during, (2) although non-participant persons § Section and after the scheduled event. and vessels may not enter, transit U.S.C. United States Code through, anchor in, or remain with the IV. Discussion of the Rule safety zone without authorization from II. Background Information and This rule establishes a safety zone the COTP Delaware Bay or a designated Regulatory History from 5 p.m. until 9 p.m. on July 14, representative, surrounding channels The Coast Guard is issuing this 2019. The safety zone will cover within the New Jersey Intracoastal temporary rule without prior notice and navigable waters of the New Jersey Waterways will remain unaffected. opportunity to comment pursuant to Intracoastal Waterway between the Persons and vessels will be able to authority under section 4(a) of the Albany Avenue (Highway 40) bridge in operate in the surrounding area during Administrative Procedure Act (APA) (5 the southwest and New Jersey the enforcement period; (3) persons and U.S.C. 553(b)). This provision Intracoastal Waterway Daybeacon 204 in vessels will still be able to enter, transit authorizes an agency to issue a rule the northeast. Paragraph (a) of the through, anchor in, or remain within the without prior notice and opportunity to regulation text below provides a regulated area if authorized by the

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COTP Delaware Bay or a designated D. Federalism and Indian Tribal 5090.1. A Record of Environmental representative; and (4) the Coast Guard Governments Consideration supporting this will provide advance notification of the A rule has implications for federalism determination is available in the docket safety zone to the local maritime under Executive Order 13132, where indicated under ADDRESSES. community by Local Notice to Mariners, Federalism, if it has a substantial direct G. Protest Activities Broadcast Notice to Mariners, and on- effect on the States, on the relationship scene actual notice from designated between the national government and The Coast Guard respects the First representatives. the States, or on the distribution of Amendment rights of protesters. Protesters are asked to contact the B. Impact on Small Entities power and responsibilities among the various levels of government. We have person listed in the FOR FURTHER The Regulatory Flexibility Act of analyzed this rule under that Order and INFORMATION CONTACT section to 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent coordinate protest activities so that your requires Federal agencies to consider with the fundamental federalism message can be received without the potential impact of regulations on principles and preemption requirements jeopardizing the safety or security of small entities during rulemaking. The described in Executive Order 13132. people, places or vessels. term ‘‘small entities’’ comprises small Also, this rule does not have tribal List of Subjects in 33 CFR Part 165 businesses, not-for-profit organizations implications under Executive Order that are independently owned and 13175, Consultation and Coordination Harbors, Marine safety, Navigation operated and are not dominant in their with Indian Tribal Governments, (water), Reporting and recordkeeping fields, and governmental jurisdictions because it does not have a substantial requirements, Security measures, with populations of less than 50,000. direct effect on one or more Indian Waterways. The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the For the reasons discussed in the 605(b) that this rule will not have a Federal Government and Indian tribes, preamble, the Coast Guard amends 33 significant economic impact on a or on the distribution of power and CFR part 165 as follows: substantial number of small entities. responsibilities between the Federal While some owners or operators of Government and Indian tribes. If you PART 165—REGULATED NAVIGATION vessels intending to transit the safety believe this rule has implications for AREAS AND LIMITED ACCESS AREAS zone may be small entities, for the federalism or Indian tribes, please ■ 1. The authority citation for part 165 reasons stated in section V.A above, this contact the person listed in the FOR continues to read as follows: rule will not have a significant FURTHER INFORMATION CONTACT section economic impact on any vessel owner above. Authority: 46 U.S.C. 70034, 70051; 33 CFR or operator. 1.05–1, 6.04–1, 6.04–6, and 160.5; Under section 213(a) of the Small E. Unfunded Mandates Reform Act Department of Homeland Security Delegation Business Regulatory Enforcement The Unfunded Mandates Reform Act No. 0170.1. Fairness Act of 1996 (Pub. L. 104–121), of 1995 (2 U.S.C. 1531–1538) requires ■ 2. Add § 165.T05–0537 to read as we want to assist small entities in Federal agencies to assess the effects of follows: understanding this rule. If the rule their discretionary regulatory actions. In would affect your small business, particular, the Act addresses actions § 165.T05–0537 Safety Zone; New Jersey organization, or governmental that may result in the expenditure by a Intracoastal Waterway, Atlantic City, NJ. jurisdiction and you have questions State, local, or tribal government, in the (a) Location. The following area is a concerning its provisions or options for aggregate, or by the private sector of safety zone: All navigable waters of the compliance, please contact the person $100,000,000 (adjusted for inflation) or New Jersey Intracoastal Waterway in listed in the FOR FURTHER INFORMATION more in any one year. Though this rule Atlantic City, NJ, within the polygon CONTACT section. will not result in such an expenditure, bounded by the following: Originating Small businesses may send comments we do discuss the effects of this rule at the southeast portion of the Albany on the actions of Federal employees elsewhere in this preamble. Avenue Bridge where the bridge crosses who enforce, or otherwise determine the shoreline at approximate position compliance with, Federal regulations to F. Environment latitude 39°21′12″ N, longitude the Small Business and Agriculture We have analyzed this rule under 074°27′23″ W; thence northeasterly Regulatory Enforcement Ombudsman Department of Homeland Security along the shoreline to latitude 39°21′43″ and the Regional Small Business Directive 023–01 and Environmental N, longitude 074°26′41″ W; thence west Regulatory Fairness Boards. The Planning COMDTINST 5090.1 (series), across the New Jersey Intracoastal Ombudsman evaluates these actions which guide the Coast Guard in Waterway to the shoreline at latitude annually and rates each agency’s complying with the National 39°21′42″ N, longitude 074°26′51″ W; responsiveness to small business. If you Environmental Policy Act of 1969 (42 thence west along the shoreline to wish to comment on actions by U.S.C. 4321–4370f), and have latitude 39°21′41″ N, longitude employees of the Coast Guard, call 1– determined that this action is one of a 074°26′55″ W; thence southwest across 888–REG–FAIR (1–888–734–3247). The category of actions that do not the mouth of Beach Thorofare to the Coast Guard will not retaliate against individually or cumulatively have a shoreline at latitude 39°21′33″ N, small entities that question or complain significant effect on the human longitude 074°27′07″ W; thence about this rule or any policy or action environment. This rule involves a safety southwest along the shoreline to the of the Coast Guard. zone lasting only 4 hours that will northeast portion of the Albany Avenue prohibit entry within certain navigable Bridge where the bridge crosses the C. Collection of Information waters during a swim event. It is shoreline at approximate position This rule will not call for a new categorically excluded from further latitude 39°21′15″ N, longitude collection of information under the review under paragraph L60(a) in Table 074°27′24″ W; thence south along the Paperwork Reduction Act of 1995 (44 3–1 of U.S. Coast Guard Environmental eastern, outermost edge of the bridge to U.S.C. 3501–3520). Planning Implementing Procedures the point of origin.

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(b) Definitions. As used in this to the compulsory license for digital administer this new blanket-licensing section, designated representative music providers to make and distribute system beginning on the ‘‘license means a Coast Guard Patrol digital phonorecord deliveries. For the availability date,’’ that is, January 1, Commander, including a Coast Guard reasons published in this document, the 2021.5 As detailed further below, the petty officer, warrant or commissioned Register designates Mechanical MLC, through its board of directors and officer on board a Coast Guard vessel or Licensing Collective, Inc. as the task-specific committees, will be on board a federal, state, or local law mechanical licensing collective and responsible for a variety of duties, enforcement vessel assisting the Captain Digital Licensee Coordinator, Inc. as the including receiving usage reports from of the Port (COTP), Delaware Bay in the digital licensee coordinator, including digital music providers, collecting and enforcement of the safety zone. their individual proposed board distributing royalties associated with (c) Regulations. (1) Under the general members. those uses, identifying musical works safety zone regulations in subpart C of DATES: Effective July 8, 2019. embodied in particular sound this part, you may not enter the safety recordings, administering a process by FOR FURTHER INFORMATION CONTACT: zone described in paragraph (a) of this which copyright owners can claim Regan A. Smith, General Counsel and section unless authorized by the COTP ownership of musical works (and shares Associate Register of Copyrights, by or the COTP’s designated representative. of such works), and establishing a email at [email protected], Steve (2) To seek permission to enter or musical works database relevant to Ruwe Assistant General Counsel, by remain in the zone, contact the COTP or these activities.6 email at [email protected], or Jason the COTP’s representative via VHF–FM By statute, digital music providers E. Sloan, Assistant General Counsel, by channel 16 or 215–271–4807. Those in will bear the reasonable costs of email at [email protected]. Each can be the safety zone must comply with all establishing and operating the MLC contacted by telephone by calling (202) lawful orders or directions given to through an administrative assessment, 707–8350. them by the COTP or the COTP’s to be determined if necessary by the designated representative. SUPPLEMENTARY INFORMATION: Copyright Royalty Judges (‘‘CRJs’’) in a (3) This section applies to all vessels I. Background separate proceeding.7 The MMA also except those engaged in law allows, but does not require, the enforcement, aids to navigation On October 11, 2018, the Orrin G. Register to designate a digital licensee servicing, and emergency response Hatch-Bob Goodlatte Music coordinator (‘‘DLC’’) to represent operations. Modernization Act (the ‘‘MMA’’) was 1 licensees in this proceeding, to serve as (d) Enforcement. The U.S. Coast signed into law. Title I of the MMA a non-voting member of the MLC, and Guard may be assisted in the patrol and addresses the efficiency and fairness of to carry out other functions.8 enforcement of the safety zone by the section 115 ‘‘mechanical’’ license for Federal, State, and local agencies. the reproduction and distribution of A. MLC Designation Requirements, (e) Enforcement period. This zone musical works embodied in digital Duties, and Functions will be enforced from approximately phonorecord deliveries, including The entity designated as the MLC (but no earlier than) 5 p.m. to permanent downloads, limited must be: 2 approximately (but not later than) 9 downloads, and interactive streams. In • A single nonprofit entity that is p.m. on July 14, 2019. relevant part, it eliminates the song-by- created by copyright owners to carry out song notice of intention process for such Dated: June 28, 2019. its statutory responsibilities; uses and creates a new blanket • Scott E. Anderson, ‘‘endorsed by, and enjoy[ ] compulsory licensing system for digital substantial support from, musical work Captain, U.S. Coast Guard, Captain of the music providers engaged in digital copyright owners that together represent Port Delaware Bay. 3 phonorecord deliveries. The blanket the greatest percentage of the licensor [FR Doc. 2019–14420 Filed 7–5–19; 8:45 am] licensing structure is designed to reduce market for uses of such works in BILLING CODE 9110–04–P the transaction costs associated with covered activities, as measured over the song-by-song licensing by commercial preceding 3 full calendar years;’’ 9 services that strive to offer ‘‘as much • able to demonstrate to the LIBRARY OF CONGRESS music as possible,’’ while ‘‘ensuring fair Copyright Office that, by the license and timely payment to all creators’’ of U.S. Copyright Office availability date, it will have the the musical works used on these digital administrative and technological services.4 37 CFR Part 210 capabilities to perform the required The MMA directs the Register of functions; and [Docket No. 2018–11] Copyrights to designate a nonprofit • governed by a board of directors entity operated by copyright owners, and include committees that are Designation of Music Licensing referred to by statute as the mechanical composed of a mix of voting and non- Collective and Digital Licensee licensing collective (‘‘MLC’’), to voting members as directed by the Coordinator statute.10 1 Public Law 115–264, 132 Stat. 3676 (2018). AGENCY: U.S. Copyright Office, Library 2 See S. Rep. No. 115–339, at 1–2 (2018); Report If no single entity meets each of these of Congress. and Section-by-Section Analysis of H.R. 1551 by the statutory criteria, the Register must Chairmen and Ranking Members of Senate and designate as the MLC the entity that ACTION: Final rule. House Judiciary Committees, at 1 (2018), https:// www.copyright.gov/legislation/mma_conference_ 5 SUMMARY: Pursuant to title I of the Orrin report.pdf (‘‘Conf. Rep.’’); see also H.R. Rep. No. 17 U.S.C. 115(d)(2)(B), (d)(3)(B); see also id. at G. Hatch-Bob Goodlatte Music 115–651, at 2 (2018) (detailing the House Judiciary 115(e)(15). 6 Modernization Act, and following a Committee’s efforts to review music copyright Id. at 115(d)(3)(C). 7 Id. at 115(d)(7)(D). solicitation of proposals and public laws). 3 The MMA retains the ability of record 8 Id. at 115(d)(5)(B); see also id. at comment on those proposals, the companies to obtain an individual download 115(d)(3)(D)(i)(IV), (d)(5)(C). Register is designating the entities who license on a song-by-song basis. 17 U.S.C. 115(b)(3). 9 Id. at 115(d)(3)(A)(ii). will perform certain functions relating 4 S. Rep. No. 115–339, at 4, 8. 10 Id. at 115(d)(3)(A), (d)(3)(D)(i).

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most nearly fits these qualifications.11 relating to the governance of the to assist the MLC in its efforts to locate After five years, the Register will collective, following statutory criteria.18 and identify copyright owners of commence a periodic review of this By statute, the MLC board must unmatched musical works (and shares designation.12 establish three committees. First, an of such works) by encouraging digital The MMA enumerates a number of operations advisory committee will music providers to publicize the required functions for the MLC.13 A core make recommendations concerning the existence of the collective and the aspect of the MLC’s responsibilities operations of the collective, ‘‘including ability of copyright owners to claim includes identifying musical works and the efficient investment in and unclaimed accrued royalties, including copyright owners, matching them to deployment of information technology by posting contact information for the sound recordings (and addressing and data resources.’’ 19 Second, an collective at reasonably prominent disputes), and ensuring that a copyright unclaimed royalties oversight locations on digital music provider owner gets paid as he or she should. To committee will establish policies and websites and applications, and that end, the MLC will create and procedures necessary to undertake a fair conducting in-person outreach activities maintain a free, public database of distribution of unclaimed royalties.20 with songwriters. The DLC is authorized musical work and sound recording Third, a dispute resolution committee to participate in proceedings before the ownership information. The MLC will will establish policies and procedures CRJs to determine the administrative administer processes by which for copyright owners to address disputes assessment to be paid by digital music copyright owners can claim ownership relating to ownership interests in providers, and before the Copyright of musical works (and shares of such musical works, including a mechanism Office with respect to the blanket works), and by which royalties for to hold disputed funds pending the mechanical license. works for which the owner is not resolution of the dispute.21 identified or located are equitably C. Designation Process and the Role of distributed to known copyright owners B. DLC Designation Criteria and the Copyright Office. Functions on a market share basis after a required The Register is to designate the MLC, holding period.14 The MLC will Similar to the MLC, the DLC must: along with the DLC (as applicable), by participate in proceedings before the • Be a single nonprofit entity created publishing a notice in the Federal CRJs to establish the administrative to carry out certain statutory Register that sets forth ‘‘the identity of assessment that will fund the MLC’s responsibilities; and contact information for the . . . • activities, as well as proceedings before be endorsed by digital music collective,’’ and ‘‘the reasons for the the Copyright Office with respect to the service providers and significant designation.’’ 26 These designations are foregoing activities.15 nonblanket licensees that together subject to the approval of the Librarian The board of the MLC shall consist of represent the greatest percentage of the of Congress pursuant to section 702 of fourteen voting members and three licensee market for uses of musical title 17.27 The legislative history states nonvoting members.16 Ten voting works in covered activities, as measured that ‘‘the Register is expected to allow members shall be representatives of over the preceding 3 calendar years; and the public to submit comments on • music publishers that have been possess the administrative and whether the individuals and their assigned exclusive rights of technological capabilities necessary to affiliations meet the criteria specified in reproduction and distribution of carry out a wide array of authorities and the legislation; make some effort of its musical works with respect to covered functions.22 own as it deems appropriate to verify activities, and four other voting The Register is directed to designate that the individuals and their members shall be professional the DLC following substantially the affiliations actually meet the criteria songwriters who have retained and same procedure described for specified in the legislation; and allow exercise exclusive rights of reproduction designation of the MLC.23 Unlike the the public to submit comments on and distribution for musical works they MLC, in the event the Register is unable whether they support such individuals have authored. There are also three to identify an entity that fulfills the being appointed for these positions.’’ 28 nonvoting members that will represent criteria for the DLC, the Register may On December 21, 2018, the Office the interests of songwriters, music decline to designate a DLC; in that issued a Notice of Inquiry (‘‘NOI’’) publishers, and digital licensees via event, the statutory references to the setting forth the functions of the MLC representatives of relevant trade DLC go without effect unless or until a 24 and DLC and the statutory criteria for associations or, in the case of licensees, DLC is designated. designation, and solicited proposals the DLC, if one has been designated.17 The DLC is tasked with coordinating 25 from entities meeting such criteria and Within one year of designation, the MLC the activities of the licensees. The DLC seeking to be designated as the MLC or must establish publicly available bylaws shall make reasonable, good faith efforts DLC, as well as relevant public comments.29 The name and affiliation of 11 18 Id. at 115(d)(3)(D)(ii). Id. at 115(d)(3)(B)(iii). each proposed board and committee 12 Id. at 115(d)(3)(B)(ii); see also H.R. Rep. No. 19 Id. at 115(d)(3)(D)(iv). This committee will have 115–651, at 6 (noting that continuity is expected to an equal number of musical work copyright owners member established by the MLC were be beneficial so long as the designated entity has and digital music provider representatives, ‘‘regularly demonstrated its efficient and fair respectively appointed by the MLC and DLC. 26 Id. at 115(d)(3)(B)(II), (d)(5)(B)(i)–(ii). 20 administration,’’ whereas evidence of ‘‘fraud, waste, Id. at 115(d)(3)(D)(v), (d)(3)(J)(ii). This 27 Id. at 115(d)(3)(A)(iv) (‘‘with the approval of the or abuse,’’ or failure to adhere to relevant committee of ten will have an equal number of Librarian of Congress pursuant to section 702, in regulations should ‘‘raise serious concerns’’ musical work copyright owners and professional accordance with subparagraph (B)’’); id. at regarding whether re-designation is appropriate); S. songwriters. (d)(5)(A)(iv) (same); see id. at 702. Rep. No. 115–339, at 5–6 (same). 21 Id. at 115(d)(3)(D)(vi), (d)(3)(H)(ii), (d)(3)(K). 28 H.R. Rep. No. 115–651, at 5; S. Rep. No. 115– 13 17 U.S.C. 115(d)(3)(C)(i), (iii) (enumerating This committee will consist of at least six members, 339, at 5; Conf. Rep. at 4; see H.R. Rep. No. 115– thirteen functions, in addition to permission to again equally divided among musical work 651, at 26 (‘‘This requirement is not waivable by the administer voluntary licenses). copyright owners and professional songwriters. Register and is not subject to the alternate 14 Id. at 115(d)(3)(E). 22 Id. at 115(d)(5)(A)(i)–(iii). designation language.’’); S. Rep. No. 115–339, at 23 15 Id. at 115(d)(3)(C)(i)(IX)–(X). 23 Id. at 115(d)(5)(B). (same). 16 Id. at 115(d)(3)(D)(i). 24 Id. at 115(d)(5)(B)(iii). 29 83 FR 65747 (Dec. 21, 2018) (‘‘NOI’’); see 17 17 Id. 25 See generally id. at 115(d)(5)(C). U.S.C. 115(d)(3)(B), (d)(3)(D)(iv)–(vi), (d)(5)(B).

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solicited as part of the designation ‘‘the need to protect the public’s interest statutory responsibilities, only MLCI process.30 with the need to let the new collective satisfies the endorsement criteria, and The Office received one proposal for operate without over-regulation.’’ 39 MLCI also has made a better showing as designation as the DLC and two to its prospective administrative and II. Register’s Designation and Analysis proposals for designation as the MLC, technological capabilities. The Register which, in accordance with the NOI, the A. Mechanical Licensing Collective is thus designating MLCI, including its public was invited to comment upon. The Office received proposals from individual board members, with the The response was considerable; the two entities seeking to be designated as Librarian’s approval. Office received over 600 comments the MLC: (1) The ‘‘Mechanical Licensing As both proposals demonstrate, the addressing these proposals, including, Collective, Inc.’’ referred to here as new collective must undertake but not limited to, musical work ‘‘MLCI’’; and (2) the ‘‘American Music formidable responsibilities copyright owners endorsing one or more Licensing Collective,’’ referred to here expeditiously and conscientiously to of the entities seeking designation. As as ‘‘AMLC.’’ 40 The candidates’ establish a number of operational noticed in the NOI, the Office also respective submissions take differing functions critical to implementation of considered whether to utilize approaches to demonstrating the new blanket licensing system. While information meetings subject to compliance with the statutory criteria. the comprehensive MLCI proposal established guidelines for such ex parte MLCI provides a detailed outline of its signals its understanding of the full communications.31 Determining that proposed organizational structure, scope of this project and its importance follow-up with each of the three business plan, and overall activities. It to songwriters and others in the music candidates would be valuable, the provided flowcharts and other community, a successful collective will Office issued such guidelines, and on illustrative materials setting forth in- undoubtedly benefit from input from May 28 and 29, the Office met with the depth plans for executing the MLC’s that broader community much in the three proponents seeking designation as way the MMA itself was enacted in a administrative and technological 44 the DLC or MLC, allowing the responsibilities, including managing spirit of consensus and compromise. proponents to supplement their written compulsory and voluntary licenses, The Register welcomes the prospect of submissions, but not to address matters matching songwriters to musical works, MLCI working with the broader wholly outside the record; summaries of and collecting and distributing royalties. community of musical work copyright those meetings were posted on the It describes its submission as the ‘‘music owners and other songwriters, as well as Office’s website.32 industry consensus proposal’’ and the DLC and individual digital music Beyond the Office’s role in contends that its selection would providers, to realize the promise of the designating the MLC and DLC, Congress facilitate valuable cooperative efforts MLC as envisioned by Congress. intended to invest the Register with across the industry.41 AMLC focuses 1. Organization, Board and Committee ‘‘broad regulatory authority’’ to create more specifically on matching Composition, and Governance policies and conduct proceedings as unidentified songwriters to their necessary to effectuate the MMA.33 The As the statute requires, both MLCI compositions for payment purposes. It and AMLC are constructed as nonprofit statute enumerates several regulations argues that the expertise of its proposed that the Register is specifically directed entities created by copyright owners to board and vendors makes it best carry out the MLC’s statutory to promulgate, including regulations 42 positioned to advance that goal, which responsibilities.45 The analysis below regarding the form of the notices of the Conference Report describes as ‘‘the will focus on relevant board and license and notices of nonblanket highest responsibility of the collective’’ committee composition and governance activity,34 usage reports and beyond efficient and accurate collection issues. adjustments,35 information to be and distribution of royalties.43 included in the musical works The Copyright Office assessed the i. Board and Committee Composition 36 database, requirements for the extent to which each candidate satisfies a. MLCI usability, interoperability, and usage the statutory requirements for restrictions of that database,37 and the designation, which can be grouped into In accordance with the statute, MLCI’s disclosure and use of confidential three categories: (1) Organization, board proposed board includes four information.38 The legislative history and committee composition, and professional songwriters: Kara contemplates that the Register will both governance; (2) endorsement and DioGuardi, Oak Fielder, Kevin Kadish, 46 ‘‘thoroughly review[ ]’’ policies and substantial support from musical work and Tim Nichols. MLCI notes that procedures established by the MLC, and copyright owners; and (3) these members were selected by a promulgate regulations that balance administrative and technological songwriter advisory panel consisting of capabilities. As detailed below, the two professional songwriters from each 30 17 U.S.C. 115(d)(3)(B)(i)(I). Office concludes that while both of the Nashville Songwriters 31 NOI at 65753–54. candidates meet the statutory criteria to Association International (‘‘NSAI’’), 32 See U.S. Copyright Office, Ex Parte be a nonprofit created to carry out its Songwriters of North America Communications, https://www.copyright.gov/ (‘‘SONA’’), Songwriters Guild of rulemaking/mma-designations/ex-parte- 39 H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. No. America (‘‘SGA’’), American Society of communications.html (last visited June 24, 2019); 115–339, at 5, 15; see also 17 U.S.C. 115(d)(12). NOI at 65753–54. Given the relatively robust record, 40 44 with over 600 written comments received regarding The incorporator’s contact information for See, e.g., Conf. Rep. at 2 (‘‘Songwriters, artists, the proposals, and in light of the statutory deadline, these entities are: Benjamin K. Semel, Pryor publishers, producers, distributors, and other the Office elected to limit meetings to the three Cashman LLP, 7 Times Square, New York, NY stakeholders involved in the creation and 10036 (MCLI); Derek C. Crownover, Dickinson candidates. distribution of music collaborated with legislators Wright, PLLC, 54 Music Square East, Suite 303, in both the Senate and the House to find a path 33 H.R. Rep. No. 115–651, at 5–6; S. Rep. No. 115– Nashville, TN 37203 (AMLC); and Allison Stillman, forward on music reform.’’). 339, at 5; see also 17 U.S.C. 115(d)(12). Mayer Brown LLP, 1221 Avenue of the Americas, 45 34 MLCI Proposal at Ex. 1 (Certificate of 17 U.S.C. 115(d)(2)(A)(i), (d)(6)(A)(i). New York, NY 10020 (DLCI). Incorporation under Delaware law); AMLC Proposal 35 Id. at 115(d)(4)(A)(iv). 41 MLCI Proposal at 5, 8. at Schedule B (Certificate of Incorporation under 36 Id. at 115(d)(3)(E)(ii)(V), (d)(3)(E)(iii)(II). 42 Id. at 2–5. New York law). 37 Id. at 115(d)(3)(E)(vi). 43 Conf. Rep. at 7; H.R. Rep. No. 115–651, at 9 46 Id. at 67–68 (a biography is included for each 38 Id. at 115(d)(12)(C). (same); S. Rep. No. 115–339, at 9 (same). songwriter board member).

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Composers, Authors and Publishers non-voting board member will be a appointment to the board.60 In addition, (‘‘ASCAP’’), and Broadcast Music, Inc. representative of the DLC.55 MLCI’s submission indicates that its 47 (‘‘BMI’’). No members of the advisory MLCI also submits proposed members selection procedures were carefully panel were themselves candidates for for each of the three statutorily required designed to ensure transparency and 48 the board or any committee. NSAI committees. For the operations advisory input from a broad range of industry reports that the panel considered nearly committee, MLCI has selected copyright sectors, as well as to avoid any 300 songwriter applicants as part of this owners who have substantial experience likelihood of self-selection. MLCI also 49 selection process. with license administration, rights designed its committee selection process such that committee members To satisfy the requirement of ten management operations, and the do not also serve on the board, helping music publisher representatives, MLCI’s relevant technology.56 For the guard against potential conflicts of proposed board includes the following unclaimed royalties oversight interest or undue influence. members: Jeff Brabec (BMG); Peter committee, the proposed members Brodsky (Sony/ATV Music Publishing); likewise have extensive experience b. AMLC Bob Bruderman (Kobalt); Tim Cohan relevant to that committee’s task of AMLC’s submission provides less (peermusic); Alisa Coleman (ABKCO); ‘‘establish[ing] policies and procedures information on the mechanics of its Scott Cutler (Pulse Music Group); Paul for the distribution of unclaimed board and committee selection Kahn (Warner/Chappell Music accrued royalties and accrued processes. For its professional Publishing); David Kokakis (Universal interest.’’ 57 Each publisher songwriter members, AMLC’s board Music Publishing Group); Mike Molinar representative on the unclaimed includes Rick Carnes, Imogen Heap, Zoe (Big Machine Music); and Evelyn royalties committee is affiliated with an Keating, and Maria Schneider.61 For its Paglinawan (Concord Music). MLCI independent music publisher, as music publisher members, AMLC’s notes that these members were selected opposed to a major music publisher, board includes Maximo Aguirre by an advisory panel comprised of which will help to ensure that smaller (Maximo Aguirre Music Publishing, professionals associated with rightsholders have a voice in MLC Inc.), Wally Badarou (ISHE sarl Music), independent music publishers.50 The functions.58 Finally, consistent with the John Barker (ClearBox Rights, LLC), panel ‘‘carefully vetted candidates to statute, MLCI proposes a dispute Marti Cuevas (Mayimba Music), Joerg ensure that the representatives selected resolution committee made of five Evers (Eversongs), Brownlee Ferguson to serve on the Board (a) have the professional songwriters and five (Bluewater Music Corp.), Henry requisite expertise and experience to musical work copyright owners.59 Gradstein (listed as an attorney and govern MLC; (b) individually and Based on the biographies and other independent publisher), Lisa Klein together faithfully reflect the entire information submitted regarding these Moberly (Optic Noise), Ricardo Ordonez music publisher community; and (c) are proposed board and committee (Union Music Group), and Jeff Price motivated to serve on the Board and members, the Copyright Office (Audiam, Inc.).62 AMLC reports that understand and do not underestimate determines that the proposed these members were selected following the serious responsibilities entrusted to composition of MLCI’s board and an ‘‘active recruitment campaign’’ and 51 them.’’ As described by MLCI, the committees satisfies the statutory that each selected member was required publisher board members represent a requirements, and moreover, that each to have ‘‘proven skill sets and practical broad range of publishing interests— of its proposed directors possesses the hands-on work experience’’ in various from a ‘‘thirty-employee company qualifications necessary for industry sectors, as well as ‘‘first-hand established and run by creatives with a work experience and knowledge of catalog of approximately 10,000 songs’’ 55 Id. at 75. music rights organizations and how they 52 63 to the largest global publishers. 56 Id. at 76–78 (committee members are Joe operate.’’ MLCI’s required nonvoting board Conyers III (Songtrust and Downtown Music Publishing), Scott Farrant (Kobalt), Rell Lafargue 60 AMLC does not dispute that these proposed members are Danielle Aguirre (NMPA), (Reservoir Media Management), Michael Lau members possess the required qualifications. The as a representative of the nonprofit trade (Round Hill Music), John Reston (Universal Music Office received one comment from a songwriter association of music publishers that Publishing Group), and Bill Starke (Sony/ATV who allegedly observed ‘‘collusion’’ while ‘‘serving represents the greatest percentage of the Music Publishing)). on the selection committee for the NMPA’s MLC,’’ licensor market for uses of musical 57 17 U.S.C. 115(d)(3)(J)(ii); see MLCI Proposal at without providing substantiation. See Michelle 78 (‘‘This Committee includes individuals who Shocked Reply at 1. While the Office takes such 53 works in covered activities; and Bart have experience in royalty and payment accounting matters seriously, MLCI’s submission did not list Herbison (NSAI), as a representative of and administration, have served on the boards of this commenter as a member of its songwriter a nationally recognized nonprofit trade independent music publishing trade groups, and advisory panel and other songwriters praised the association whose mission is advocacy have litigated (on behalf of songwriters) the failure selection process. See, e.g., SONA Reply at 2 of digital music providers to pay royalties due to (signed by Michelle Lewis, a MLCI songwriter 54 on behalf of songwriters. The third a claimed inability to identify or ‘match’ recordings advisory panel member, and over twenty other to musical works.’’). songwriters); MLCI Proposal at Ex. 8 (statement of 58 NSAI). In the absence of more specific information, 47 Id. at 67–69. MLCI Proposal at 79–80 (committee members these allegations do not factor into the Office’s 48 are songwriters busbee, Kay Hanley, David Lowery, Id. at 68; NSAI Reply at 4–5 (discussing analysis. conflicts of interest approach). Dan Navarro, and Tom Shapiro and copyright owner representatives Phil Cialdella (Atlas Music 61 AMLC Proposal at 35. 49 NSAI Reply at 5. Publishing), Patrick Curley (Third Side Music), 62 Id. at 35, 49–75 (A biography is included for 50 MLCI Proposal at 69; see also NSAI Reply at Michael Eames (PEN Music Group), Frank Liwall each board member). 4–5 (advisory selection panel contained ‘‘only (The Royalty Network, Inc.), and Kathryn Ostien 63 Id. at 38. Following its meeting with AMLC, the independent music publishers whose interests are (The Richmond Organization/Essex Music Group)). Office understands that an initial core of board best served by selecting the most efficient back 59 MLCI Proposal at 84–86 (committee members members, namely Mr. Barker, Mr. Price, Mr. office systems, and who have vast experience with are songwriters Aime´e Allen, Odie Blackmon, Gary Ferguson, and Ms. Moberly, served to vet additional potential vendors’’). Burr, David Hodges, and Jennifer Schott and members. See AMLC Ex Parte Meeting Summary at 51 MLCI Proposal at 69–70 (A biography is copyright owner representatives Alison Koerper 22 (June 5, 2019) (‘‘Board member searches were included for each music publisher board member). (Disney Music Group), Ed Leonard (Daywind Music conducted via personal relationships, 52 Id. at 70. Group), Sean McGraw (Downtown Music recommendations, and invitations to submit 53 Id. at 74. Publishing), Debbie Rose (Shapiro, Bernstein & Co.), inquiries of interest via public posting on the AMLC 54 Id. at 74–75. and Jason Rys (Wixen Music Publishing)). Continued

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AMLC includes only one of the three musical work copyright owners and background similarly demonstrates required nonvoting board members, three professional songwriters.71 relevant experience, it is not clear that David Wolfert of MusicAnswers, as a MLCI argues that certain AMLC board he meets the statutory criteria, as MCLI representative of a nationally recognized members do not in fact satisfy the raises a colorable argument that nonprofit trade organization whose relevant statutory criteria.72 MLCI representatives of ‘‘[e]ntities that do not primary mission is advocacy on behalf specifically questions AMLC proposed have a relevant ownership interest in of songwriters in the United States.64 board members John Barker, Joerg Evers, the copyright to musical works (either AMLC notes that one additional and Wally Badarou’s status as by virtue of assignment or exclusive nonvoting board member will be a ‘‘publisher representatives,’’ contending license) do not meet the statutory representative of the DLC, and another that the entities with which they claim criteria.’’ 80 Under that reading, if Mr. will be filled by NMPA as a affiliation do not appear to be music Barker’s company merely administers representative of the nonprofit trade publishers.73 MLCI also challenges the licenses on behalf of copyright owners, association of music publishers.65 characterization of Henry Gradstein as but has not itself been assigned In response, MLCI contends that an ‘‘independent publisher’’ on the copyrights, he would not constitute a AMLC’s proposed board does not ground that he is a litigation attorney for publisher representative within the adequately represent the entire music whom no publisher affiliation is meaning of the statute. publisher community, as it lacks provided either in AMLC’s submission Ultimately, the Copyright Office need representatives from large or mid-size or on his law firm’s website.74 not resolve this issue because the publishers.66 The Office notes, however, The Office raised these issues in its specific proposal of Mr. Barker does not that AMLC has offered to replace one of meeting with AMLC representatives. In factor heavily into the Office’s its current publisher board members response, AMLC provided specific assessment. Any conflict with the with a representative of a major information regarding the entities with statute could be cured by replacing him publisher if such an organization were which these individuals are affiliated. with a publisher representative; indeed, to request a voting seat.67 AMLC stated that Mr. Barker is the the Office appreciates AMLC’s offer to AMLC also submits proposed owner and CEO of ClearBox Rights, accommodate a major publisher that members for each of the designated LLC, an ‘‘independent copyright wishes to join its board. A greater committees. Unlike MLCI, some of the administration company,’’ which is the concern, however, is the lack of specific members on each committee include ‘‘‘exclusive’ agent for licensing and information provided by AMLC on its proposed board members—a structure collection of royalties for all types of membership selection processes. Even that potentially could diminish the uses.’’ 75 Under AMLC’s interpretation, assuming that its ultimate selections committees’ ability to provide Mr. Barker would be qualified to serve would satisfy the statutory independent recommendations to the on the board because he represents requirements, AMLC’s submissions board.68 As required, AMLC provides music publishers through his describe a somewhat ad hoc decision four members for the operations administration company.76 AMLC making process in this area. While many advisory committee, and five further provided company names and of the proposed AMLC board members professional songwriters and five ASCAP or BMI IPI numbers for demonstrate commendable experience musical work copyright owners for the publishing companies owned by Mr. to perform the relevant duties, the unclaimed royalties oversight Evers, Mr. Badarou, and Mr. Office appreciates MLCI’s more committee.69 AMLC notes that the Gradstein.77 comprehensive approach to identifying proposed members of the latter Based on this information, the and selecting potential members, who committee ‘‘have years of experience Register will assume for purposes of this themselves each appear highly dealing with double claims, counter designation that Mr. Evers, Mr. Badarou, experienced and able to perform the claims and registration of song data both and Mr. Gradstein qualify as required duties. in the US and internationally.’’ 70 For ‘‘representatives of music the dispute resolution committee, publishers.’’ 78 While Mr. Gradstein in ii. Representation and Diversity AMLC provides three representatives of particular appears to be primarily a The Institute of Intellectual Property litigator, he is also the owner of a music and Social Justice (‘‘IIPSJ’’), in website.’’). MLCI, however, raised questions as to a publishing company. For the music comments co-signed by several dozen lack of transparency and potential conflicts of publishing representatives, the statute artists and other music industry interest in AMLC’s selection process. See MLCI Reply at 16–18. does not appear to require that music stakeholders, urged the Register to 64 AMLC Proposal at 35. publishing is a full-time occupation, ensure that the MLC includes 65 Id. and Mr. Gradstein has focused his ‘‘meaningful and significant 66 MLCI Reply at 18. career on issues relevant to his proposed representatives from the African- 67 AMLC Proposal at 35. board service.79 While Mr. Barker’s American, Latino-American and Asian- 68 Id. (AMLC’s proposed Operations Advisory American songwriting and music Committee members are Frank Liddell (Carnival 71 Id. at 36 (committee members are songwriters publishing communities, selected by Music), Caleb Shreve (Killphonic Music), and board Wally Badarou, Imogen Heap, and Jon Siebels and such communities, and encompassing members Brownlee Ferguson (Bluewater Music copyright owners Peter Roselli (Bluewater Music Corp.) and Jeff Price (Audiam, Inc.)). Corp.), Hakim Draper (Boogie Shack Music Group), 69 Id. at 35–36 (AMLC’s proposed Unclaimed and Jonathan Segel (Copyright Owner)). (regarding ‘‘professional songwriters who have Royalties Oversight Committee members are 72 MLCI Reply at 19–20. retained and exercise exclusive rights of songwriters Joerg Evers, Rick Carnes, Zoe Keating, 73 Id. at 20. reproduction and distribution with respect to Stewart Copeland, He´le`ne Muddiman, and Anna covered activities with respect to musical works 74 Id. at 19. Rose Menken and copyright owners Ricardo they have authored’’) (emphasis added); see also 75 Ordonez (Union Music Group), Gian Caterine AMLC Ex Parte Meeting Summary at 6. MLCI Proposal at 67 (‘‘In MLC’s view, the (American Music Partners West), Carlos Martin 76 Id. requirement that four voting board members of MLC Carle (Mayimba Music), Juan Hidalgo (Juan y 77 Id. be ‘‘professional songwriters’’ means that the Nelson Entertainment), Al Staehely (listed as an 78 17 U.S.C. 115(d)(3)(D)(i)(I). songwriter board members must be songwriters who entertainment lawyer and copyright owner), and 79 In contrast, the songwriter board members must earn a living primarily through their songwriting David Bander (Ultra Music & Ultra International be ‘‘professional[s],’’ which the Office regards as a activities.’’). Music Publishing)). requirement that such board members must be 80 MLCI Reply at 20; see also 17 U.S.C. 70 Id. at 41. primarily songwriters. Id. at 115(d)(3)(D)(i)(II) 115(d)(3)(D)(i)(I).

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representation from the Hip-Hop, R&B, The Copyright Office recognizes the successive board members, MLCI Latin, Reggae, Jazz and Gospel/Christian entertainment industry as a whole has proposes that songwriter members music genres.’’ 81 Pointing to the been grappling with the question of how would be appointed from a slate of growing influence of Hip-Hop and best to diversify its leadership and candidates chosen by songwriters, and Latino music, IIPSJ suggests that the provide opportunities to a broader range prospective music publisher members statute requires ‘‘diverse cultural of creators. The Office believes that the would be appointed from candidates representation’’ for the board.82 IIPSJ MLC can play a role in helping to chosen by music publishers.95 A similar believes that the proposed boards of advance these goals within the music process would be followed for 89 both MLCI and AMLC lack sufficient industry. The Office accordingly committees.96 MLCI proposes that the representation from these expects the designated MLC to ensure board conduct regular elections as well 83 communities. engagement with a broad spectrum of as address interim vacancies though an The Office takes representation musical work copyright owners, election process based on those including from those communities that concerns seriously and agrees that they nominations.97 should be considered as part of the MLC IIPSJ asserts are underrepresented. The AMLC has adopted bylaws that detail board and committee selection Office intends to work with the MLC to 90 board members’ obligations with regard processes. In meetings with the Office, help it achieve these goals. to related party transactions and both MLCI and AMLC expressed a iii. Bylaws, Conflicts of Interest, and conflicts of interest, including commitment to ensuring diversity in Other Governance Issues disclosure requirements and procedures their memberships, though, both Both submissions address the questioned the premises of IIPSJ’s letter for review by fellow board members, statutory requirement to establish although ALMC recognizes that it may with regards to the sufficiency of bylaws within one year of designation, representation in their proposed board have ‘‘to ameliorate or conform the including with respect to succession of bylaws’’ if they are not consistent with slates. In addition, MLCI noted that its 91 board members. MLCI has not yet the MMA, the Register’s yet-to-be draft bylaws ‘‘contain a diversity adopted bylaws, but it does have draft provision that calls for a biannual report promulgated regulations, or the New bylaws that it will make public ‘‘well in York State Not-for-Profit Corporation on the diversity of the board, including 92 advance of the statutory deadline.’’ In Law.98 diversity as to gender/race/ethnicity, addition, although it has ‘‘not finalized income, musical genre, geography and a management structure for daily AMLC proposes that replacement 84 expertise/experience.’’ The report’s operations,’’ MLCI has already board members can be nominated by conclusions ‘‘are to be used by the established a number of ‘‘foundational’’ either the departing member or any nominating committees in choosing policies and procedures designed to other voting members, and that AMLC’s future candidates’’ to be proposed for ensure accountability, transparency, board would select committee members 85 the board. MLCI further emphasized fairness and confidentiality, including by a majority vote, but its bylaws do not its capacity to reach a variety of that: (1) All committee otherwise detail how committee communities, noting ‘‘the extensive recommendations will be subject to candidates will be nominated.99 Beyond participation that it has developed board approval; (2) annual reports will these statutorily prescribed committees, through its Board and Committee be released to the public; (3) the AMLC proposes four ‘‘additional members and many endorsers,’’ and that committees will maintain their statutory support committees’’—Audit and ‘‘many groups supporting MLC[I] have composition; (4) MLCI will maintain a Finance, Education and Outreach, international offices that can assist in public list of all unmatched works and Technology and Security, and 86 global outreach.’’ AMLC responded engage in public outreach to enhance International.100 It appears there is some by reiterating the diverse nature of its legitimate ownership claims; and (5) the potential for overlap, as, for example, board members and their experience board will adopt a comprehensive set of strategic technology issues appear to fall with broad array of genres and creator written codes, policies, and procedures 87 under both the Technology and Security communities. AMLC believes that its to govern the board and committees.93 Committee and the Operations board members’ experiences would MLCI also commits to ‘‘safeguard[ing] Oversight Committee, and matters prove beneficial in the development of private, sensitive, or confidential relating to budgeting, vendor contracts, educational and outreach efforts 94 information.’’ With regard to and general operations appear to be targeting diverse creators, including germane to the Operations Oversight those overseas.88 Both candidates 89 Cf. Cal. Corp. Code sec. 301.3 (under California Committee as well as the Executive and agreed that securing engagement and law, publicly held corporations whose principal Audit and Finance Committees.101 The trust among varied communities, executive offices are located in California must include female board members). Office notes that any additional musical genres, and geographical 90 See H.R. Rep. No. 115–651, at 5–6, 14; S. Rep. locations would prove critical to the standing committees should not conflict No. 115–339, at 5, 15. with the functions of the statutorily MLC’s core project of encouraging 91 17 U.S.C. 115(d)(3)(D)(ii)(I). musical work copyright owners with 92 MLCI Proposal at 86; MLCI Ex Parte Meeting mandated committees, which are unclaimed accrued royalties to come Summary at 3 (referencing draft bylaws). MLCI subject to strict board composition forward and claim such monies. correctly notes that it is not required to have requirements to ensure adequate adopted bylaws at this stage. See MLCI Proposal at representation of interests (e.g., 115. 81 IIPSJ Initial at 3. 93 MLCI Proposal at 86–91 (noting the board’s songwriters, digital music providers) in 82 Id. at 3–4. forthcoming sets of written codes, policies, and 83 IIPSJ Reply at 4–6. procedures, including: Code of Conduct and Ethics; 95 Id. at 87. Conflict of Interest Policy; Investment Policy 84 MLCI Ex Parte Meeting Summary at 3 (June 4, 96 Id. (including an Anti-Comingling Policy); 97 2019). Confidentiality Policy; Whistleblower Policy; Id. 85 Id. Document Retention Policy; Technology and 98 AMLC Proposal at 78, 88–91 (AMLC bylaws). 86 Id. Security Policy; Non-Discrimination Policy; Anti- 99 Id. at 79–80 (AMLC bylaw art. 4.3). 87 AMLC Ex Parte Meeting Summary at 3–4, 15– Sexual Harassment Policy; Social Media Policy; and 100 Id. at 36, 85 (AMLC bylaw art. 6.5.5–6.5.8). 17. Gift Acceptance Policy). 101 Id. at 84–85 (AMLC bylaw art. 6.5.1, 6.5.4, 88 Id. at 15–17. 94 Id. at 92–93. 6.5.5, 6.5.7).

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the matters handled by those will establish guidelines and polices to board members, a more substantial committees.102 reduce conflicts.111 explanation of the relevant business With respect to conflicts of interest, MLCI suggests that AMLC has serious relationships may be required if AMLC MLCI will require all board members conflicts of interest of its own, alleging were the candidate that otherwise most and employees to comply with a that AMLC board members have nearly satisfied the statutory criteria. conflicts policy to be adopted at a later undisclosed ties to its proposed The Office thus need not resolve date.103 The policy ‘‘will require vendors, in violation of AMLC’s own whether any specific affiliations of disclosure of all actual or potential bylaws.112 These claims, echoed by AMLC board members would, in fact, conflicts,’’ including ‘‘having a financial NSAI,113 involve allegations that certain present material conflicts of interest interest (direct or indirect) in any AMLC board members have financial with respect to its intended primary contemplated MLC transaction, or interests in the Society of Composers, vendor. relationship with any counterparty to Authors and Music Publishers of More generally, the Copyright Office such transaction.’’ 104 MLCI also states Canada (‘‘SOCAN’’), which owns appreciates that both proponents have that it ‘‘expects all associated persons to AMLC’s intended vendor partner pledged to operate under bylaws that fully comply with all applicable law,’’ DataClef.114 AMLC responded that will address conflicts of interest and including fiduciary and ethical while Mr. Barker previously was in a appropriate disclosures in accordance obligations, and that it ‘‘will enforce consulting position with SOCAN, that with applicable state laws and such obligations, which may include relationship ended prior to AMLC’s professional duties of care.119 Following removal for cause, in the event of a formation.115 AMLC acknowledges that this designation process, and including demonstrated violation.’’ 105 Mr. Price is the founder and CEO of through the various statutorily required AMLC disputes that these measures Audiam, a company acquired by a rulemakings, the Register intends to are sufficient to prevent conflicts in the SOCAN holding company, but asserts exercise her oversight role as it pertains event MLCI were designated. AMLC that the companies are managed to matters of governance, including argues that there is a serious conflict of separately and that ‘‘Audiam is not a through promulgation of regulations so interest when a MLC board member is vendor and is not going to be one.’’ 116 that the MLC’s bylaws include an eligible to receive a significant portion AMLC also generally asserted that avenue to ensure that subsequent board of the accrued but unpaid royalties—a AMLC’s board members currently have member selections are made in concern that AMLC believes is salient ‘‘no ties or fiduciary responsibilities to compliance with all relevant legal given the number of major publishers any shareholders.’’ 117 requirements.120 106 Taking all of this information into represented on MLCI’s board. Other 2. Endorsement and Support commenters, some of whom appear account, both MLCI and AMLC have affiliated with AMLC, raise similar adopted policies and procedures that As noted, the MLC must be ‘‘endorsed by, and enjoy[ ] substantial support concerns.107 In response, NSAI argues appear broadly consistent with the from, musical work copyright owners that the unclaimed royalties oversight statutory requirements on matters of that together represent the greatest committee will protect against such governance. Both submissions show a percentage of the licensor market for concerns, noting that MLCI does not serious commitment to transparency, uses of such works in covered activities, include a major publisher on that accountability, and the protection of 118 as measured over the preceding 3 full committee.108 MLCI further suggests confidential information. calendar years.’’ 121 The Copyright this concern would attach to any board With respect to the purported Office made two preliminary member regardless of which entity is conflicts of interest of individual board interpretations regarding this clause in designated, noting that every copyright members, although these claims raise the NOI.122 First, the Office explained owner and songwriter on any designated serious issues, they ultimately have little impact on the Office’s evaluation that because the section 115 license MLC will be eligible to receive a applies to uses of phonorecords in the distribution of unclaimed accrued of the candidates’ proposals. Regarding 109 MLCI’s board composition, the Office United States, the relevant market is the royalties. United States market for making and For its part, AMLC sets forth agrees that the unclaimed royalties oversight committee will help mitigate distributing phonorecords of musical procedures for disclosing, addressing, works. Thus, endorsement may be and documenting conflicts of interest in potential conflicts. As discussed below, 110 the Office expects ongoing regulatory shown by including musical work its bylaws. It asserts that its board copyright owners located outside the will consider such issues carefully in and other implementation efforts to further extenuate the risk of self-interest United States so long as they control the establishing governance procedures and relevant rights to works played or that the unclaimed royalties committee with respect to the distribution of unclaimed accrued royalties. As to the otherwise distributed in the United States. Second, the Office stated that 102 See, e.g., 17 U.S.C. 115(d)(3)(D)(iv)–(vi); see allegations regarding individual AMLC also Conf. Rep. at 19 (‘‘Since the Board of Directors because the statute refers to support and committee member requirements . . . are 111 Id. at 19. from ‘‘musical work copyright owners,’’ statutory in nature, these requirements are not 112 MLCI Reply at 30–32. the relevant support should come from waivable by the Register or subject to modification 113 NSAI Reply at 5. parties who have a relevant ownership by the Board of Directors.’’). 114 MLCI Reply at 30–31. 103 MLCI Proposal at 91–92. 115 AMLC Ex Parte Meeting Summary at 23 119 104 See, e.g., Del. Code Ann. tit. 8, sec. 144(a); Id. (AMLC further offered that ‘‘Mr. Barker continues N.Y. Not-for-Profit Corp. L. sec. 715. 105 Id. at 92. to have an arm’s-length business relationship with 120 See 17 U.S.C. 115(d)(12); see id. at 106 AMLC Proposal at 19, 45–46. SOCAN for certain collection activity’’). 115(d)(3)(D)(i)(I)–(IV); see also H.R. Rep. No. 115– 107 Robert Allen Reply at 3–4; Cameron Ford 116 Id. Despite the assertion that Audiam has its 651, at 5–6; S. Rep. No. 115–339, at 5; Conf. Rep. Reply at 1–2; MusicAnswers Reply at 1–3; Maria own management, AMLC does not state that the at 4. The Office notes that many commenters Schneider Reply at 1; Rhonda Seegal Reply at 2– Audiam board contains no SOCAN executives. See supported the Office performing a meaningful 3; SGA Reply at 5–8. id. (noting that Audiam’s board of directors oversight role to the extent permissible under the 108 NSAI Reply at 4. ‘‘includes non-SOCAN executives’’). statute. See, e.g., Maria Schneider Reply at 2–3; 109 MLCI Reply at 33. 117 Id. SGA Reply at 7. 110 AMLC Proposal at 89–90 (AMLC bylaw art. 118 See, e.g., MLCI Proposal at 88–93; AMLC 121 17 U.S.C. 115(d)(3)(A)(ii). 14). Proposal at 17, 42, 78. 122 NOI at 65753.

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interest in the copyright to musical to [m]arket [s]hare.’’ 129 Section and able to endorse an MLC,’’ 134 works (or shares of such works), in 115(d)(3)(J) states that after unclaimed endorsement should be measured by contrast to parties who do not possess accrued royalties have been held for the counting each musical work copyright any ownership interest in musical requisite period of time, the MLC is to owner as one vote.135 As evidence of works but only the ability to administer distribute the royalties to identified such support, it relies on a list of (in the works. Neither MLC candidate copyright owners ‘‘in a transparent and some cases, appending supporting disagrees with these conclusions.123 equitable manner based on data letters from) purported endorsers.136 Under section 115(d)(3)(A)(ii), only indicating the relative market shares of In contrast, MLCI argues that the those copyright owners comprising a such copyright owners as reflected in endorsement provision is unambiguous, portion of ‘‘the licensor market for uses reports of usage provided by digital and that the ‘‘only reasonable of such works in covered activities, as music providers for covered activities interpretation . . . is that the collective measured over the preceding 3 full for the periods in question.’’ 130 AMLC shall be the entity that has the calendar years,’’ count for purposes of notes that, unlike the endorsement endorsement and support of copyright endorsement.124 The Office also noted provision, section 115(d)(3)(J) expressly owners that together received during the in the NOI that it understood there refers to ‘‘relative market share.’’ In its statutory three-year period the largest might be conflicting views regarding view, ‘‘[i]f Congress, in articulating the aggregate percentage of total mechanical how the indicia of endorsement and endorsement criteria, intended for the royalties of any entity seeking support should be measured.125 This words ‘licensor market’ to mean designation as the collective.’’ 137 MLCI understanding proved correct, as MLCI ‘relative market share’ (or some primarily relies on the statutory text to and AMLC offer competing equivalent), Congress would have assert that ‘‘percentage of the . . . interpretations. While MLCI argues that included the words ‘relative market market’’ means ‘‘market share,’’ that the the measurement is to be based on share,’ the methodology to calculate phrase ‘‘for uses of [musical] works in market share and licensing revenue, same and the corresponding covered activities’’ denotes a AMLC disagrees. The Office will confidentiality language it included measurement based on usage, and that address these disputed issues of later on when specifically referring to such usage should be measured by 131 statutory construction before making its ‘relative market share.’ ’’ looking at licensor revenue from evidentiary findings. AMLC also makes the policy applicable royalty payments.138 argument that ‘‘[a]n inherent conflict of MLCI contends that other potential i. Statutory Interpretation interest would be created if the MLC metrics—i.e., number of licenses, a. Candidates’ Views were primarily endorsed and/or number of copyright owners, and constituted by the largest and/or ‘major’ number of musical works—are not AMLC argues that the endorsement publishers’’ because, ‘‘[s]ince unclaimed supported by the legislative history and provision ‘‘should be interpreted so that or ‘black box’ royalties are to be are unworkable as a practical matter.139 the relevant ‘licensor market’ from distributed based on market share, those It disagrees with AMLC’s analysis of which the ‘greatest percentage’ is taken publishers would be dis-incentivized to section 115(d)(3)(J)’s use of the phrase is the endorsing group of copyright account to independent songwriters and ‘‘relative market share,’’ arguing that owners who, via the greatest number of independent publishers accurately, i.e., that section ‘‘supports, rather than licenses, have made musical works the major publishers would be refutes, the fact that the endorsement available for covered activities as incentivized to create a larger ‘black criterion looks to royalty market share, measured over the preceding 3 full box’ from which they could then as both are examples of the MMA’s use calendar years.’’ 126 AMLC contends that participate.’’ 132 AMLC argues that of such market share to guide processes the statutory language is ambiguous but ‘‘[w]ere [these copyright owners] to be under the statute.’’ 140 that its reading is confirmed by the in control of such process, the resulting As a policy matter, MLCI suggests legislative history. It notes that ‘‘[t]he situation would repeat the incentive ‘‘that the group of copyright owners [Senate Judiciary] Committee explained problem involving digital music with the most royalties at stake—the that the MLC should be ‘endorsed by services that the statute intended to fix,’’ largest aggregate share of the royalty and enjoy[ ] support from the majority of and that ‘‘the purposes of the MMA pool that the collective will have [the] musical works copyright owners as would not be best fulfilled if proper authority to license—should voice who measured over the preceding three incentives are not aligned.’’ 133 is entrusted with that authority.’’ 141 It years.’ ’’ 127 From this, AMLC asserts In AMLC’s view, because would ‘‘make[ ] a mockery of the that Congress intended that ‘‘the parties ‘‘songwriters . . . are the greatest language of the statute,’’ MLCI contends, eligible to endorse the proposed MLC number of copyright owners relevant to to construe the provision to mean that are the musical works copyright ‘‘owners of musical works that are not owners.’’ 128 129 Id. at 44. 130 being streamed or earning royalties AMLC also points to a separate 17 U.S.C. 115(d)(3)(J)(II). 131 could be deemed to have the same provision of the statute, section AMLC Proposal at 44–45 (emphasis omitted) (‘‘Generally, statutory language should be internally market share as owners of works that are 115(d)(3)(J), to argue that the consistent and considered in light of full statutory endorsement provision ‘‘[c]annot [r]efer context. As such, courts will generally read as 134 Id. at 46–47. meaningful ‘the exclusion of language from one 135 See AMLC Ex Parte Meeting Summary at 24 statutory provision that is included in other 123 (‘‘AMLC response is based on the number of See AMLC Proposal at 46; MLCI Proposal at provisions of the same statute.’ ’’) (quoting Hamdan copyright owners, not the total number of 96–97, 113–14. v. Rumsfeld, 548 U.S. 557, 578 (2006), superseded 124 copyrights.’’). MLCI agrees that a ‘‘relevant copyright owner’’ by statute on other grounds, Military Commissions 136 is ‘‘an owner of musical works copyrights licensed Act of 2006, Public Law 109–366, 120 Stat. 2600 AMLC Proposal at 46–48, 94–107. for covered activities over the preceding three full (2006)). 137 MLCI Proposal at 96; see also id. at 108; MLCI calendar years.’’ MLCI Reply at 9. 132 Id. at 45. Reply at 5 (‘‘[T]he only reasonable reading of this 125 language is the plain English reading.’’). NOI at 65753. 133 Id. at 46 (contending that ‘‘copyright owners 138 126 AMLC Proposal at 43 (emphasis omitted). controlling the greatest percentage of ‘relative See MLCI Proposal at 107–113. 127 Id. at 46 (quoting S. Rep. No. 115–339, at 22) market share’ were not intended to be in control of 139 Id. at 108–113; see MLCI Reply at 5–6. (emphasis AMLC’s). the process of locating and paying copyright owners 140 MLCI Reply at 6–7. 128 Id. who are owed unclaimed royalties’’). 141 MLCI Proposal at 107.

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streamed billions of times and earn activities.’’ 146 Moreover, Congress’s is no omission and Congress merely substantial royalties.’’ 142 inclusion of the phrase ‘‘uses of used synonyms.151 [musical] works’’ suggests that the The Office is likewise unpersuaded b. Copyright Office’s Analysis proper metric is one of licensing that these synonyms should be read Legal Interpretation. Taking all revenue (i.e., royalties), rather than differently simply because the comments into consideration, the numbers of licenses, copyright owners, unclaimed royalties provision contains Copyright Office concludes that the or works. Under the compulsory license, different details regarding calculation endorsement provision in section royalties are calculated based on use, and confidentiality than the 115(d)(3)(A)(ii) mandates that the entity suggesting that Congress intended to endorsement provision. While both designated as the MLC be endorsed and define the market for ‘‘uses’’ according provisions use a similar market share supported by musical work copyright to the royalty revenues generated.147 metric, the contexts are different, such owners that together earned the largest In contrast, counting up just the that it makes sense that Congress would aggregate percentage (among MLC number of endorsing copyright provide different instructions. Section candidates) of total royalties from the owners—from an amateur part-time 115(d)(3)(J) explains how the MLC is to use of their musical works in covered songwriter whose works have been distribute unclaimed royalties after the activities in the U.S. during the streamed a handful of times to a major blanket license becomes available. It is statutory three-year period. In other music publisher that has earned unsurprising that Congress would words, the Office agrees with MLCI that millions of dollars from millions of provide detailed requirements to govern the endorsement criterion is a plurality streams of millions of works—says how those payments are to be allocated. requirement based on market share, nothing about the actual ‘‘uses of [the In contrast, the designation of an entity measured by applicable licensing owners’ musical] works.’’ Such an to be the MLC involves a higher-level revenue. The Office draws this interpretation impermissibly reads that inquiry into the aggregate market share conclusion from the plain meaning of language out of the statute.148 Similarly, of each candidate’s endorsing copyright the statutory text, which, after careful looking only to the number of works owners. Congress could have given the review of the statute as a whole, the owned by endorsing copyright owners Office detailed instructions as to how to Office concludes is unambiguous.143 would not accurately reflect use because perform this analysis, but it instead left First, the phrase ‘‘percentage of the it does not differentiate between works the matter to the Office’s expertise and . . . market’’ clearly refers to market streamed once or twice and works reasonable discretion. There is nothing share; indeed, it is the actual definition streamed millions of times. In the inconsistent with Congress establishing of ‘‘market share.’’ 144 And market share Office’s view, the same kinds of differing approaches to accomplishing is ordinarily calculated using earned problems exist with counting the these different tasks. sales revenue.145 Here, the statute makes number of licenses. The legislative history does not clear that endorsement is a metric of The Office is unpersuaded by AMLC’s counsel differently. The relevant ‘‘licensor’’ revenue earned specifically argument concerning section language, which appears in House and ‘‘for uses of [musical] works in covered 115(d)(3)(J). There is no substantive Senate Judiciary Committee Reports, distinction between the use of ‘‘market states that the MLC must be ‘‘endorsed 142 Id. at 110, n.31. share[ ]’’ in that provision and the use of by and enjoy[ ] support from the 143 See Star Athletica, L.L.C. v. Varsity Brands, ‘‘percentage of the . . . market’’ in the majority of musical works copyright Inc., 137 S. Ct. 1002, 1010 (2017) (‘‘We thus begin endorsement provision. One is the very and end our inquiry with the text, giving each word owners as measured over the preceding 152 its ordinary, contemporary, common meaning.’’) definition of the other. AMLC relies three years.’’ This language can best (internal quotation marks omitted). AMLC upon the canon of statutory be understood as an imprecise summary incorrectly suggests that the Office ‘‘has interpretation under which Congress is of the statutory text, for if it is taken acknowledged an ambiguity in the statute.’’ AMLC presumed to have acted intentionally Proposal at 46. The Office only acknowledged that literally, it directly conflicts with the ‘‘there may be conflicting views’’ on the matter. NOI when it excludes ‘‘language from one statute, which refers to ‘‘endorse[ment] at 65753. statutory provision that is included in by[ ] and . . . substantial support from[ ] 144 See, e.g., Market Share, Merriam-Webster, other provisions of the same statute.’’ 149 musical work copyright owners that https://www.merriam-webster.com/dictionary/ But that canon is inapplicable here, as together represent the greatest market%20share (last visited June 24, 2019) the cases AMLC cites involve only the (Market share is ‘‘the percentage of the market for percentage of the licensor market for a product or service that a company supplies.’’); wholesale omission of an item from a uses of such works in covered Market Share, Investopedia, https:// statutory provision; 150 they do not activities.’’ 153 For the statute to mean www.investopedia.com/terms/m/marketshare.asp speak to situations where, as here, there what the legislative history seems to (last visited June 24, 2019) (‘‘Market share represents the percentage of an industry, or a say, ‘‘substantial’’ could be deleted, 146 market’s total sales, that is earned by a particular 17 U.S.C. 115(d)(3)(A)(ii). ‘‘greatest percentage’’ would need to be company over a specified time period.’’). 147 See 37 CFR 385.11, 385.21. MLCI notes that replaced with ‘‘majority,’’ and ‘‘of the ‘‘[p]ractically speaking, a metric based on user 145 See, e.g., Market Share, Merriam-Webster, licensor market for uses of such works https://www.merriam-webster.com/dictionary/ usage is going to align with a metric based on market%20share (last visited June 24, 2019) (noting licensor revenues, as the statutory royalty rates for in covered activities’’ could also be the formula for market share as ‘‘Market Share = both streaming and downloading are tied to usage,’’ deleted. It does not seem reasonable for (Particular Company’s Sales Revenue in Time and that ‘‘a musical work with more usage will the Office to interpret the statute in this wind up with more royalty revenues.’’ See MLCI Period X)/(Relevant Market’s Total Sales Revenue way.154 in Time Period X)’’); Market Share, Investopedia, Proposal at 111–12 & n.34. While not all uses are https://www.investopedia.com/terms/m/ subject to the same royalty rate, the royalties are 151 marketshare.asp (last visited June 24, 2019) (noting nonetheless connected to use. See, e.g., United States v. Sioux, 362 F.3d that in calculating a company’s market share, you 148 See, e.g., Advocate Health Care Network v. 1241, 1246 (9th Cir. 2004) (‘‘It is an elementary must ‘‘divide the company’s total revenues by its Stapleton, 137 S. Ct. 1652, 1659 (2017) (‘‘Our principle of statutory construction that similar industry’s total sales’’); Market Share, The practice . . . is to give effect, if possible, to every language in similar statutes should be interpreted American Heritage Dictionary of the English clause and word of a statute.’’) (internal quotation similarly.’’). Language, https://ahdictionary.com/word/ marks omitted). 152 H.R. Rep. No. 115–651, at 26; S. Rep. No. 115– search.html?q=market+share (last visited June 24, 149 AMLC Proposal at 44 (citing Hamdan, 548 339, at 22; see also Conf. Rep. at 18 (similar). 2019) (Market share is ‘‘[t]he proportion of industry U.S. at 578). 153 17 U.S.C. 115(d)(3)(A)(ii). sales of a good or service that is controlled by a 150 See Hamdan, 548 U.S. at 578–79; City of Chi. 154 See, e.g., Nat’l Ass’n of Mfrs. v. Dep’t of Def., company.’’). v. Envtl. Def. Fund, 511 U.S. 328, 334–37 (1994). 138 S. Ct. 617, 634 n.9 (2018) (‘‘[A]mbiguous

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Policy Considerations. With respect to claimed.159 The MLC must ‘‘engage in ‘‘evidence of fraud, waste, or abuse, AMLC’s policy arguments, they mirror diligent, good-faith efforts to publicize, including the failure to follow the the same conflict-of-interest concerns throughout the music industry,’’ the relevant regulations adopted by the raised by AMLC and discussed in existence of the MLC, procedures to Copyright Office, over the prior five connection with board composition. claim unclaimed royalties, any transfer years should raise serious concerns The Office takes these concerns of royalties under section 115(d)(10)(B), within the Copyright Office as to seriously, but they do not compel a and any pending distribution of whether that same entity has the different interpretation of the plain text unclaimed accrued royalties and administrative capabilities necessary to of the statute.155 Rather, there are other accrued interest not less than 90 days perform the required functions of the ways that the statute addresses these before distribution.160 More generally, collective,’’ and that in such cases, the issues and protects smaller independent the statute expressly requires the MLC Office should consider selecting a new songwriters, as the following examples to ‘‘ensure that the policies and entity ‘‘even if not all criteria are met illustrate.156 practices of the [MLC] are transparent pursuant to section 115(d)(3)(B)(iii).’’ 168 First, the statute provides for equal and accountable.’’ 161 The MLC must The Office thus agrees that ‘‘it seems representation of musical work issue a detailed annual report, including highly implausible . . . that Congress copyright owners and professional describing ‘‘how royalties are collected intended that the ‘licensor market songwriters on the unclaimed royalties and distributed,’’ and ‘‘the efforts of the support’ criterion be the primary, oversight committee, which is charged [MLC] to locate and identify copyright deciding factor as to whether a full with ‘‘establish[ing] policies and owners of unmatched musical works investigation and analysis by the procedures for the distribution of (and shares of works).’’ 162 And every Register and the Copyright Office of unclaimed accrued royalties and five years, the MLC must retain an each serious [MLC] candidate is accrued interest.’’ 157 By law, any independent auditor to ‘‘examine the necessary.’’ 169 The Office believes that, copyright owner receiving such a books, records, and operations of the among other scenarios, if the designated distribution must pay or credit to an [MLC]’’ and prepare a report addressing, entity were to make unreasonable individual songwriter no ‘‘less than 50 among other things, ‘‘the distributions of unclaimed royalties, percent of the payment received by the implementation and efficacy of that could be grounds for concern and copyright owner attributable to usage of procedures’’ ‘‘for the receipt, handling, may call into question whether the musical works (or shares of works) of and distribution of royalty funds, entity has the ‘‘administrative and that songwriter.’’ 158 including any amounts held as technological capabilities to perform the Second, the statute requires the MLC unclaimed royalties,’’ and ‘‘to guard required functions of the [MLC].’’ 170 to undertake a number of duties with against fraud, abuse, waste, and the Fifth, Congress has asked the Office to respect to unclaimed royalties, unreasonable use of funds.’’ 163 study the issue of unclaimed royalties including maintaining a public online Third, the Copyright Office has been and to provide a report by July 2021 that list of unmatched musical works provided with ‘‘broad regulatory recommends best practices for the MLC through which ownership can be authority’’ to conduct proceedings as to identify and locate copyright owners necessary to effectuate the statute with with unclaimed royalties, encourage legislative history cannot trump clear statutory the Librarian’s approval.164 In addition copyright owners to claim their language.’’) (internal quotation marks omitted); R.R. to the regulations that the Office is royalties, and reduce the incidence of Comm’n of Wis. v. Chi., Burlington & Quincy R.R. specifically directed to promulgate, the unclaimed royalties.171 The MLC must Co., 257 U.S. 563, 589 (1922) (‘‘Committee reports and explanatory statements of members in charge legislative history contemplates that the give ‘‘substantial weight’’ to these made in presenting a bill for passage have been held Office will ‘‘thoroughly review[]’’ recommendations when establishing its to be a legitimate aid to the interpretation of a policies and procedures established by procedures to identify and locate statute where its language is doubtful or obscure. the MLC.165 The legislative history copyright owners and to distribute But when taking the act as a whole, the effect of 172 the language used is clear to the court, extraneous suggests that the Office promulgate the unclaimed royalties. aid like this can not control the interpretation. Such necessary regulations in a way that Sixth, in addition to the various ways aids are only admissible to solve doubt and not to ‘‘balances the need to protect the the MLC is required to publicize create it.’’ (internal citations omitted)); see also public’s interest with the need to let the unclaimed royalties,173 the DLC must Pattern Makers’ League of N. Am., AFL–CIO v. assist with publicity for unclaimed N.L.R.B., 473 U.S. 95, 112 (1985) (finding new collective operate without over- ‘‘ambiguous legislative history’’ to ‘‘fall[ ] far short regulation.’’ 166 The Office intends to royalties by encouraging digital music of showing that the [agency’s] interpretation of the conduct its oversight role in a fair and providers to publicize information on [statute] is unreasonable’’). impartial manner; songwriters are the existence of the MLC and on 155 Cf. Fourth Estate Pub. Benefit Corp. v. Wall- encouraged to participate in these future claiming royalties on websites and Street.com, LLC, 139 S. Ct. 881, 892 (2019) (noting that ‘‘the statutory scheme has not worked as rulemakings. applications, and conducting in-person 174 Congress likely envisioned,’’ but that ‘‘[u]nfortunate Fourth, the MLC must be redesignated outreach activities with songwriters. as [that] may be, that factor does not allow us to every five years.167 In the legislative The Copyright Office, too, is tasked with revise [the statute’s] congressionally composed history, Congress explained that engaging in public outreach and text’’). 156 See SGA Reply at 3 (‘‘SGA is far more 159 168 concerned with ensuring that music creator rights 17 U.S.C. 115(d)(3)(J)(iii)(I). H.R. Rep. No. 115–651, at 6; S. Rep. No. 115– 160 are fully protected against conflicts of interest and Id. at 115(d)(3)(J)(iii)(II). 339, at 5–6; Conf. Rep. at 4. 169 impingements upon the rights and interests of 161 Id. at 115(d)(3)(D)(ix)(I)(aa). SGA Reply at 9. songwriters and composers under all 162 Id. at 115(d)(3)(D)(vii)(bb), (hh). 170 17 U.S.C. 115(d)(3)(A)(iii). circumstances, than in supporting one or the other 163 Id. at 115(d)(3)(D)(ix)(II). 171 Public Law 115–264, sec. 102(f), 132 Stat. at candidate vying to be selected as the Mechanical 164 H.R. Rep. No. 115–651, at 5–6; S. Rep. No. 3722–23. Collective.’’). 115–339, at 5; Conf. Rep. at 4; see 17 U.S.C. 172 Id. at sec. 102(f)(2), 132 Stat. at 3723. 157 17 U.S.C. 115(d)(3)(D)(v), (d)(3)(J)(ii). 115(d)(12). 173 17 U.S.C. 115(d)(3)(J)(iii) (including 158 Id. at 115(d)(3)(J)(iv)(II); see also S. Rep. No. 165 H.R. Rep. No. 115–651, at 5–6; S. Rep. No. maintenance of an online list of unmatched works 115–339, at 14 (‘‘The 50% payment or credit . . . 115–339, at 5; Conf. Rep. at 4; see 17 U.S.C. through which ownership can be claimed, is intended to be treated as a floor, not a ceiling, 115(d)(12). notification prior to any distribution, and and is not meant to override any applicable 166 H.R. Rep. No. 115–651, at 14; S. Rep. No. 115– participation in music industry conferences and contractual arrangement providing for a higher 339, at 15; Conf. Rep. at 12. events). payment or credit of such monies to a songwriter.’’). 167 17 U.S.C. 115(d)(3)(B)(ii). 174 Id. at 115(d)(5)(C)(i)(VII), (d)(5)(C)(iii).

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educational activities that must MLCI provides multiple data points published songwriters, meaning they are specifically include ‘‘educating regarding the market share of its not signed to or affiliated with a music songwriters and other interested endorsers. publisher and manage their own parties’’ about how ‘‘a copyright owner For purposes of calculating market musical work copyrights’’—they are not may claim ownership of musical works share, MLCI counts 132 musical work included in MLCI’s market share (and shares of such works)’’ and how copyright owners it calls the calculations.183 ‘‘royalties for works for which the ‘‘Supporting Copyright Owners.’’ 179 According to MLCI, ‘‘[i]ndustry data, owner is not identified or located shall According to MLCI: including revenue information that be equitably distributed to known The Supporting Copyright Owners include NMPA collects from its members on an copyright owners.’’ 175 copyright owners of all sizes who own the annual basis and publicly available Finally, the Office suggests there may relevant rights in musical works covering the data, demonstrates that the Supporting be other reasons for the statutory spectrum of musical genres—including pop, Copyright Owners represent between requirement that the MLC enjoy rap, hip hop, R&B, country, rock, metal, 85% and 90% of the licensor market for ‘‘substantial support’’ from the largest reggae, folk, electronic, jazz, classical—and all uses of musical works during the market share of musical work copyright from every era—including popular current [statutory three-year period from 2016 owners. Without minimizing the hits and ‘‘evergreen standards.’’ Their sizes through 2018].’’ 184 Additionally, Mr. range from major music publishers who own importance of ensuring that Israelite’s declaration provides data unidentified copyright owners have the the relevant rights to millions of songs, to small, family-owned companies that focus on from Billboard Magazine showing the opportunity to come forward and a particular genre or sub-genre. The average combined market share of effectively claim their works to receive Supporting Copyright Owners own the Supporting Copyright Owners appearing accrued royalties, there are other duties mechanical rights to, at a minimum, well in Billboard’s quarterly top ten rankings of the MLC that also serve the over seven million musical works.180 of music publishers over the last three paramount goal of ‘‘ensuring that a A sworn declaration from David M. years to be 87.83%.185 songwriter actually gets paid.’’ 176 As Israelite of the NMPA states that the Mr. Israelite states that these data MLCI notes, already identified copyright Supporting Copyright Owners ‘‘own[ ] figures are ‘‘a fair proxy for estimating owners have an interest in ensuring the the U.S. mechanical rights to millions of the Supporting Copyright Owners’ efficient and accurate collection and works’’ and ‘‘have confirmed that they market share for uses of musical works distribution of royalties.177 Further, the exclusively endorse MLC[I] to be the in covered activities, as there is no MLC will participate in proceedings collective, and have pledged to provide reason to believe that the Supporting before the CRJs, and having the support substantial support to MLC[I].’’ 181 A Copyright Owners’ market share for uses of publishers with prior experience group endorsement letter from the of their musical works in covered before the CRJs may be beneficial. Supporting Copyright Owners further activities should deviate significantly Establishment of the statutorily-required states that they ‘‘all own, and have from their market share for their uses of database will likely also benefit from musical works generally.’’ 186 In initial support of music publishers and during the preceding three years owned, exclusive rights to license musical support, MLCI states that ‘‘NMPA was other relevant copyright owners with able to confirm from information large quantities of authoritative versions works for use in covered activities in the United States and have licensed those regarding the U.S. mechanical royalties of data for works that together will 182 paid by Apple Music and Spotify—the comprise the bulk of royalty rights to digital music providers.’’ The Supporting Copyright Owners thus largest and most popular services in the distributions.178 As these examples market—that the Supporting Copyright illustrate, having strong support from appear to be relevant copyright owners who may be counted for endorsement Owners have together received the key copyright owners may assist in substantial majority of total mechanical ensuring that the MLC is in the best purposes. While MLCI states that it is also endorsed by ‘‘over 2,400 royalties for uses of musical works in possible position to succeed in covered activities in the U.S. during the effectively carrying out the whole of its songwriters’’—of whom ‘‘[o]ver 1,400’’ ‘‘have reported that they are self- [statutory three-year period from 2016 assigned responsibilities. through 2018].’’ 187 As discussed below, ii. Evidentiary Findings 179 Id. at 98. Digital Licensee Coordinator, Inc. 180 (‘‘DLCI’’) follows a similar market share- a. Market Share Id. (citations omitted); see id. at Ex. 11–8–9 (stating that ‘‘a partial count of information based approach to establish its With respect to the information obtained from less than half of the Supporting endorsement by digital music providers submitted in the proceeding, AMLC Copyright Owners shows that together they own 188 (now and over the preceding 3 full calendar years) and significant non-blanket licensees. does not provide market share data for the right to reproduce and distribute over 7.3 AMLC does not contest these market its endorsing copyright owners. Nor do million musical works in Section 115 covered share figures; indeed, a comment its endorsers provide sufficient activities in the U.S.’’) (declaration of David M. supporting AMLC submitted on behalf information from which the Office can Israelite). 181 Id. at Ex. 11–5. reasonably determine their aggregate 183 Id. at 98–99 & n.22. 182 Id. at Ex. 11–A–1; see, e.g., id. at Ex. 11–B– applicable market share. In contrast, 184 Id. at 99 (citation omitted); see also id. at Ex. 1 (‘‘Sony owns the exclusive rights to license 11–5–7 (declaration of David M. Israelite). millions of musical works written by tens of 185 175 Public Law 115–264, sec. 102(e)(2), 132 Stat. thousands of songwriters, including for use in Id. at Ex. 11–6–7. The Office notes that at 3722. Section 115 covered activities. Sony has for well Billboard appears to only ‘‘measure the market 176 164 Cong. Rec. S6292, 6292 (daily ed. Sept. 25, over the last three years licensed these rights to share . . . of the top 100 radio airplay songs.’’ See, 2018) (statement of Sen. Hatch). digital services through the Section 115 compulsory e.g., Ed Christman, Music Publishers’ 4th Quarter Report: Top 3 Companies Have the Same No. 1 177 MLCI Proposal at 107. licensing process and, in some cases, through Song, Billboard (Feb. 3, 2017), https:// 178 For example, a number of MLCI’s largest voluntary licenses.’’); id. at Ex. 11–D–1 (‘‘Reel www.billboard.com/articles/business/7677913/ endorsers state that each intends to work with MLCI Muzik Werks is the owner or the exclusive licensee music-publishers-4th-quarter-report. to incorporate its musical work data into the of the rights to engage and to license others to 186 musical works database. See, e.g., MLCI Proposal at engage in Section 115 covered activities .... Reel MLCI Proposal at Ex. 11–7. Exs. 11–B–2 (Sony/ATV Music Publishing), 11–C– Muzik Werks has during the last three full calendar 187 Id. at 99–100; see also id. at Ex. 11–7–8 2 (Kobalt Music Publishing America, Inc.), 11–N– years licensed its rights in and to musical works to (describing methodology) (declaration of David M. 2 (Warner/Chappell Music, Inc.), 11–P–2 (Universal digital music providers for use in covered Israelite). Music Publishing Group). activities.’’). 188 See DLCI Proposal at 4–7.

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of a group of songwriters that includes soul.194 These songwriters include Independent Music, the major record two AMLC board members concedes writers of #1 hit songs, Grammy Award labels, and SoundExchange.197 Lastly, that ‘‘Sony/EMI, Warner, and winners and nominees, a Rock and Roll in one of the few comments from an Universal’’—each of which exclusively Hall of Fame inductee, members of the organization that waited to review the endorse MLCI—‘‘control about 65% of Nashville Songwriters Hall of Fame, proposals before endorsing a candidate, the market for music publishing.’’ 189 film and television composers, and the Recording Academy, whose The Office notes that other sources numerous less established or part-time membership includes ‘‘thousands of confirm that MLCI is supported by a writers. working songwriters and composers, majority of the music publishing The Office also heard from a broad many of whom are independent, self- market; according to Music & assortment of trade groups and other published, or unaffiliated songwriters,’’ Copyright’s annual survey ‘‘based on organizations (some of which the Office states that it ‘‘believes that the MLC[I] revenue,’’ Sony,190 Universal, and understands to be members or submission is best equipped to satisfy Warner/Chappell together had an subgroups of each other) representing the statutory requirements of the average combined global market share of publisher and songwriter interests. MMA.’’ 198 58.65% for 2017 and 2018.191 Groups listed as supporting AMLC As noted above, and as both Based on the foregoing, the Office include international alliances and candidates agree, not every commenter finds that there is substantial evidence collectives like the Music Creators of can be counted for purposes of the to demonstrate that MLCI is endorsed North America (‘‘MCNA’’), European endorsement provision—even under and supported by the required plurality Composer and Songwriter Alliance, AMLC’s interpretation. If the statue of relevant endorsing copyright owners, Pan-African Composers’ and were to require only a headcount, it based on applicable market share. Given Songwriters’ Alliance, Asia-Pacific would still be a headcount of relevant the overwhelming majority market share Music Creators Alliance, and Alianza copyright owners. In this proceeding, of MLCI’s Supporting Copyright Owners Latinoamericana de Compositores y some endorsers, for example, are and the data from Apple Music and Autores de Mu´ sica, and other groups attorneys that give no indication that Spotify, and in the absence of any like the Songwriters Guild of America, they are also relevant copyright evidence to the contrary, the above- Screen Composers Guild of Canada, owners.199 Some endorsers do not give discussed market share figures appear American Composers Forum, and Music any indication of their connection to the more likely than not to be a sufficient Answers.195 Groups listed as supporting industry.200 And some endorsers who proxy for estimating market share based MLCI include the National Music state that they are songwriters are not on royalties earned from covered Publishers’ Association, Association of clear about whether they are also activities in the U.S. Even if that were Independent Music Publishers, relevant copyright owners for their not the case, the Office finds, based on International Confederation of Music songs.201 Many of the endorsements the foregoing, that MLCI would still be Publishers, Nashville Songwriters contain ambiguities such as these. ‘‘the entity that most nearly fulfills’’ the Association International, Songwriters A separate issue concerns the section 115(d)(3)(A)(ii) qualification.192 of North America, Music Publishers treatment of the international alliances, Association, American Composers performing rights organizations, trade b. Number of Copyright Owners Alliance, Gospel Music Association, groups, and other endorsing In any event, even under the metric Church Music Publishers Association, organizations. MLCI does not contend for which AMLC provides evidence— Americana Music Association, that these types of organizations are 202 number of copyright owners—AMLC Copyright Alliance, and Creative relevant copyright owners. AMLC, on would not be the candidate that satisfies Future.196 In addition, performing rights the other hand, appears to count not the endorsement provision. organizations ASCAP, BMI, SESAC, and only each of its supporting The Office received comments from a Global Music Rights all endorse MLCI, organizations, but the individual significant portion of the music as do many representatives from the members of each of those 203 industry, voicing support for either recorded music industry, including the organizations. MLCI strongly 204 MLCI or AMLC. Endorsements came Recording Industry Association of disapproves of this approach. The from a diverse array of large and small America, the American Association of Office finds it difficult to credit these publishers 193 as well as from thousands purported endorsements, as there is of songwriters from across the country 194 See, e.g., AMLC Proposal at 47–75; MLCI insufficient evidence to demonstrate and beyond representing virtually every Proposal at Exs. 5–A, 6–10; Robert Allen Reply; that every member of each of these major genre, including pop, hip hop, Board of Directors of NSAI Reply; Maria Schneider Reply; Spence Burton Reply; Michael Busbee Reply; 197 MLCI Proposal at 100, Ex. 11–X rap, rock, country, R&B, alternative, Britt Daley Reply; Barry DeVorzon Reply; Jerry 198 Recording Academy Reply at 1, 3. electronic, dance, folk, jazz, classical, Emanuel Reply; Beckie Foster Reply; Jan Garrett 199 Broadway/musical theatre, blues, Reply; Ben Glover Reply; Dan Gutenkauf Reply; See, e.g., Jay A. Rosenthal et al. Reply. 200 Christian, gospel, Latin, bluegrass, and John Harding Reply; Aaron Johns Reply; Brett Jones See, e.g., Jared Burton Reply; Brandon Dudley Reply; Amy Kinast Reply; Wayne Kirkpatrick Reply; Earl Vickers Reply. Reply; Sonia Kiva Reply; Bill LaBounty Reply; 201 See, e.g., Ashley Gorley Reply; Chris Myers 189 Robert Allen Reply at 6. David Lauver Reply; Daniel Leathersich Reply; Reply; Jeff Rodman Reply; Chris Xefos Reply. 190 See Global Recorded-music and Music Alejandro Martinez Reply; Dennis Matkosky Reply; 202 See MLCI Proposal at 100, Ex. 11–9 (referring Publishing Market Share Results for 2018, Music & Steve Miller Reply; Clay Mills Reply; Vincent to them as ‘‘non-musical work copyright owner[ ] Copyright (May 8, 2019), https://musicand Mullin Reply; Kerry Muzzey Reply; Rick Nowels groups’’). copyright.wordpress.com/2019/05/08/global- Reply; Melissa Peirce Reply, Jim Photoglo Reply; 203 See AMLC Proposal at 47–48 (claiming its recorded-music-and-music-publishing-market- Deric Ruttan Reply; Jerry Schneyer Reply; Joie Scott endorsers ‘‘represent hundreds of thousands of share-results-for-2018/. Reply; Pamela Schuler Reply; Karen Sotomayor separate and unique music publishers whose music 191 Id. (this calculation includes figures from Reply; Miki Speer Reply; Even Stevens Reply; Paris is distributed on digital streaming services in the Sony/ATV, Sony Music Publishing Japan, and EMI Strachan Reply; Eleisa Trampler Reply; Kelly United States’’). Music Publishing and includes all revenue, not just Triplett Reply; Danny Wells Reply; Anna Wilson 204 See MLCI Reply at 11 (‘‘MLC[I] would never for covered activities). Reply. claim that, simply by virtue of a trade group 192 17 U.S.C. 115(d)(3)(B)(iii). 195 AMLC Proposal at 47–48; see generally id. at endorsement, each songwriter and publisher 193 See, e.g., MLCI Proposal at 98, Ex. 11–A–X; 94–107. member of the trade group can be deemed to KDE LLC Reply at 1 (supporting AMLC); Secretly 196 MLCI Proposal at 100, Ex. 11–X; International endorse and support MLC[I], as that would be Publishing Reply at 1 (supporting MLCI). Confederation of Music Publishers Reply at 1. misleading.’’).

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organizations actually endorses AMLC. Additionally, without a list of member these assumptions, AMLC would have While surely each referenced names, the Office cannot determine around 1,000 endorsements, while association on a general level represents whether individual members are being MLCI would have about three times that the interests of their members, none of counted more than once due to number. Even if based only on MLCI’s AMLC’s group endorsements indicate membership in multiple endorsing Supporting Copyright Owners and the that they have the authority to endorse organizations or because the individual songwriters listed in MLCI’s proposal an MLC candidate on their members’ filed his or her own comment with the who identified as self-published, MLCI behalf. For example, the submissions do Copyright Office directly.209 By not would still have hundreds more not indicate that any kind of resolution identifying purported endorsing endorsers than all of the comments to endorse was passed by their members, the possibility also exists for submitted in support of AMLC. Thus, members, and if one was, whether their conflicting endorsements.210 For under both the proper metric of market members voted unanimously (as would example, AMLC board members Zoe share, and the alternative metric of be necessary to claim that every member Keating, Maria Schneider, and Rick number of copyright owners, MLCI is should be counted). In many cases, Carnes appear to be affiliated with the candidate that satisfies the moreover, it is difficult to tell whether ASCAP,211 which endorses MLCI. These endorsement requirement. the endorsements are submitted on individuals presumably would object to As noted in conclusion below, the behalf of the organization, or from MLCI counting them among its MMA was enacted only after an individuals associated with the endorsers merely because ASCAP has extensive effort to build consensus organizations acting in their personal endorsed MLCI. amongst musical work copyright owners capacities or in their capacity as an Lastly, AMLC’s proposal refers to and songwriters with various, individual board member.205 In fact, ‘‘100+ various individual composers/ sometimes competing, interests. The two organizations listed by AMLC as writers/publishers/organizations who Register expects that the designated endorsers in its proposal subsequently have signed an AMLC endorsement MLC will endeavor to equally represent disavowed the purported endorsements document’’ and ‘‘600+ endorsements via the interests of those who did not and clarified that they do not in fact [the] AMLC website,’’ which suffer from endorse it, and that interested sides will support AMLC.206 the same kinds of practical problems.212 continue to come together to make the If the Office were to credit these kinds Because these individuals are not implementation of this historic new of endorsements, it would raise specifically identified, the Office cannot licensing scheme a success, building unresolvable practical problems. For determine their precise number or if any upon the cooperative spirit that many of these organizations, no of them additionally submitted facilitated the MMA’s passage.214 membership numbers are provided,207 comments directly to the Office such 3. Administrative and Technological and for others, only an indefinite range that they may be counted more than Capabilities or rounded figure is given, making a once. precise headcount impossible.208 Nonetheless, even if these ambiguities The statute requires that the are resolved in favor of counting each designated entity ‘‘has, or will have 205 See, e.g., AMLC Proposal at 95 (letter from the endorsement (except for the individual prior to the license availability date, the Chairman of the Asia-Pacific Music Creators members of the endorsing organizations administrative and technological Alliance, providing no information about the discussed above and the two organization or its membership, and stating that ‘‘I capabilities to perform the required hereby voice my support to’’ AMLC) (emphasis organizations that repudiated their functions of the mechanical licensing added); id. at 98 (same with respect to Alianza purported endorsements), AMLC still collective.’’ 215 The NOI requested that Latinoamericana de Compositores y Autores de would have substantially fewer each proposal include specific Mu´ sica); id. at 103 (same with respect to Pan- endorsements than MLCI.213 Applying African Composers’ and Songwriters’ Alliance); see information to demonstrate the also AMLC Ex Parte Meeting Summary at 24 candidate’s ability to meet this (‘‘Some [organizational] endorsements were 50,000 professional composers and songwriters’’); interpreted to be an endorsement by the individual, id. at 100 (stating that MCNA has an ‘‘approximate by AMLC and MLCI in their respective proposals, and others on behalf of the entire membership.’’). collective membership of between 7,500 to 8,500 including counting all proposed board and 206 See APRA AMCOS Reply at 1 (clarifying that songwriters and composers’’); id. at 105 (stating that committee members. Then, the Office counted APRA AMCOS does not endorse AMLC and was Music Answers has ‘‘more than 3,500 supporters’’); every endorsement contained in other comments. ‘‘misrepresented in the AMLC’s submission,’’ and SGA Reply at 1 (‘‘membership ranges between 3,500 The Office did not, however, count the individual that the letter appended to AMLC’s proposal was and 5,000 members’’). members of any endorsing groups or organizations ‘‘signed by a single writer director of the APRA 209 For example, it seems that the memberships of for the reasons stated above. To be as equitable as board and does not represent the commitment or SGA and Screen Composers Guild of Canada may possible, the Office treated every endorsement as support of our organization, nor does the letter state be subsumed within the membership of MCNA. See coming from a relevant copyright owner, except anywhere that APRA itself has offered any such AMLC Proposal at 100 (listing SGA and SCGC as where the record affirmatively stated otherwise. institutional endorsement’’); Statement from CISAC ‘‘member organizations’’ of MCNA). Because AMLC did not provide the identities of the and CIAM on the U.S. Music Licensing Collective, 210 While the Office made clear in the NOI that bulk of their endorsers, the Office could not International Confederation of Societies of Authors endorsements need not be exclusive, this is a compare most of the endorsers from AMLC’s and Composers (Apr. 5, 2019), https:// different issue that speaks to whether the candidate proposal to the individual endorsements received www.cisac.org/Newsroom/Articles/Statement-from- is in fact supported by an individual. in the comments, meaning the Office could not CISAC-and-CIAM-on-the-U.S.-Music-Licensing- 211 See Sue (or In a Season of Crime), ACE ascertain whether there might be duplicate Collective (‘‘For the avoidance of doubt and in view Repertory, https://www.ascap.com/repertory#ace/ endorsements. Because the Office could not of the different rumours circulating, CIAM and search/workID/888244289 (last visited June 24, deduplicate AMLC’s endorsements, the Office did CISAC wish to clarify that the organisations have 2019) (listing Maria Schneider’s PRO affiliation as not deduplicate MLCI’s endorsements either, so as not endorsed either of the competing companies for ASCAP); Across the Street (Live), ACE Repertory, to apply a consistent methodology to both the U.S. MLC.’’). https://www.ascap.com/repertory#ace/search/ candidates. 207 See, e.g., AMLC Proposal at 95 (Asia-Pacific workID/886237406 (last visited June 24, 2019) 214 See, e.g. Music Policy Issues: A Perspective Music Creators Alliance); id. at 98 (Alianza (listing Zoe Keating’s PRO affiliation as ASCAP); from Those Who Make It: Hearing on H.R. 4706, Latinoamericana de Compositores y Autores de Hangin Around, ACE Repertory, https:// H.R. 3301, H.R. 831 and H.R. 1836 Before the H. Mu´ sica); id. at 102 (Society of Authors and www.ascap.com/repertory#ace/search/workID/ Comm. on the Judiciary, 115th Cong. 4 (2018) Composers of Colombia); id. at 104 (Screen 380230553 (last visited June 24, 2019) (listing Rick (statement of Ranking Member Nadler); 164 Cong. Composers Guild of Canada); id. at 106 Carnes’s PRO affiliation as ASCAP). Rec. S501, 502 (daily ed. Jan. 24, 2018) (statement (ABRAMUS/ALCAM). 212 AMLC Proposal at 48. of Sen. Hatch); 164 Cong. Rec. H3522, 3536 (daily 208 See, e.g., id. at 99 (stating that European 213 The Office’s methodology was as follows. ed. Apr. 25, 2018) (statement of Rep. Goodlatte). Composer and Songwriter Alliance ‘‘represents over First, the Office counted all endorsements provided 215 17 U.S.C. 115(d)(3)(A)(iii).

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requirement, organized into enumerated communicating information in ‘‘necessary support capabilities and categories. accordance with the Common Works processes, usually typical of most Registration (‘‘CWR’’) format and DDEX businesses (payroll, legal, etc.).’’ 229 i. Overview of Proposals, Including standards, and a willingness to explore These categories in turn comprise ten Business Planning and Budgeting other relevant existing or emerging functions that the MLC will carry out on The Office requested that each entity standards or open protocols.224 behalf of songwriters, musical works provide ‘‘a business plan, including a Similarly, AMLC and MLCI each owners, and the public, explained by a statement of purpose or principles, express an understanding of the need to series of detailed flow charts.230 proposed schedule, and available address policies and actions related to While MLCI has not yet determined budgetary projections, for the distributions of unclaimed accrued the precise management structure for establishment and operation of the royalties with care, including providing daily operations or full staffing, it proposed MLC for the first five years of adequate notice before such includes a series of organizational its existence.’’ 216 The NOI noted that distributions occur.225 They commit to charts, which propose fifty-five although the MLC designation process is engage in education and outreach efforts employees.231 It also has retained separate from the establishment of an to publicize the collective, including consultant support in overseeing administrative assessment by the CRJs, procedures by which copyright owners technology strategy, the RFI/RFP ‘‘understanding the proposed funding may identify themselves to claim process, and operations design, and for the MLC (in advance of the accrued royalties.226 They both reports that its board members have establishment of the administrative appropriately focus on the need to dedicated a considerable amount of time assessment)’’ and budgetary planning operate a user-friendly claiming portal, to this planning process.232 generally can be ‘‘important to for, as the legislative history notes, ‘‘the MLCI intends to ‘‘utilize a single confirming that the MLC will be ready simple way to avoid any distribution to primary vendor for core usage to adequately perform its required other copyright owners and artists is to processing functions, with functions by the license availability date step forward and identify oneself and consideration of secondary vendors to 217 and beyond.’’ Accordingly, the one’s works to the collective, an augment in specific areas.’’ 233 Sixteen Office’s interest in the candidates’ exceedingly low bar to claiming one’s vendors participated in its RFI process, budgetary materials is ‘‘for the purposes royalties.’’ 227 and MLCI selected seven of those to of this designation process only, and Although the proposals share certain participate in the RFP process.234 MLCI without prejudice to the future commonalities, they diverge on details, notes that, in aggregate, these RFI administrative assessment sometimes significantly, including at participants ‘‘have processed nearly 20 218 proceeding.’’ times on the level or evidence of trillion lines of sound recording usage Considering both proposals at a very planning disclosed in response to the and more than $4.2 billion in royalties high level, there are a number of NOI. These differences were reflected in for the U.S. territory over the past 3 similarities, including a shared the proposed budgetary estimates, calendar years, and have more than 20 intention to set up offices in or near 219 including the specific line items, put million unique works in rights Nashville, Tennessee. Both forth by each candidate. databases and existing connectivity with candidates envision using a primary approximately 50,000 publishers.’’ 235 vendor to build out the required musical a. MLCI MLCI estimates its total startup costs works database, and to varying degrees Out of the two candidates, MLCI through the license availability date to signaled intentions or openness to provides a more detailed organizational be between $26 and $48 million, with 220 working with additional vendors. In model for its operations and reports that annual operating costs between $25 and recognition that the creation of a it ‘‘has already begun the process of $40 million.236 To obtain funding, it has comprehensive musical works database assuring the timely acquisition of these engaged in ‘‘good faith negotiations with has long been an aim of various capabilities’’ 228 necessary to fulfill the the major licensee services in an attempt segments of the music community, both statutory functions. This framework is to reach agreement on voluntary candidates plan to ‘‘utilize systems that organized into three categories of 237 221 contributions.’’ If such an agreement are tested’’ or ‘‘leverage[ ] existing activities: Strategic Processes, defined as is not realized, MLCI will participate in technology and data providers’’ 222 Both ‘‘the management processes that the assessment proceeding.238 In that propose to rely on automated processes empower the operational capabilities of for the bulk of identifying songs the collective’’; Core Processes, defined 229 Id. at 12. recorded and matching them to as ‘‘capabilities and processes in the 230 Id. at 13. copyright holders, augmented with 231 Id. at 25; see id. at 25–29 (detailed description 223 core tasks’’ including ‘‘how the MLC manual processing as needed. To that performs the central ownership and of employee roles). 232 end, both note the importance of license administration responsibilities’’; Id. at 3–4; see also MLCI Ex Parte Meeting compatibility with existing music Summary at 2. and Foundational Processes, defined as 233 industry standards, including MLCI Ex Parte Meeting Summary at 2. 234 MLCI Proposal at 55 (listing RFI participants 224 MLCI Proposal at 35, 38, 57–58; AMLC ASCAP, AxisPoint, BackOffice, BMI, BMAT, 216 NOI at 65751 (requesting each plan also Proposal at 15; see also Berklee College of Music Crunch Digital, DDEX, Gracenote, ICE, Music include ‘‘a description of the intended & MIT Connection Science Comments at 2–5. Reports, Inc. (‘‘MRI’’), Open Music Initiative (OMI), technological and/or business methods’’ for 225 See, e.g., MLCI Proposal at 43–44; AMLC Sacem/IBM, SESAC/HFA, SOCAN/DataClef, accomplishing the MLC’s statutory obligations). Proposal at 18–19; AMLC Ex Parte Meeting SourceAudio, and SXWorks); id. at 59 (listing RFP 217 Id. at 65752. Summary at 14. participants ASCAP, BackOffice, ICE, MRI, SESAC/ 218 Id. 226 MLCI Proposal at 62–63; AMLC Proposal at HFA, SXWorks, and Sacem/IBM); id.at Exs. 3, 4 219 MLCI Proposal at 66; AMLC Proposal at 48, 30–33. (providing RFI and RFP). MLCI did not include 76. 227 S. Rep. No. 115–339, at 14 (2018) (stating that copies of RFI or RFP responses, stating they are 220 MLCI Ex Parte Meeting Summary at 2; AMLC ‘‘[t]his process ensures that copyright owners and subject to nondisclosure agreements and include Ex Parte Meeting Summary at 7–9. artists benefit’’ in contrast to views of ‘‘some confidential information. Id. at 59. 221 MLCI Proposal at 39. copyright owners and/or artists who would prefer 235 Id. at 56–57. 222 AMLC Proposal at 5. that such money be escrowed indefinitely until 236 Id. at 31–32. 223 MLCI Proposal at 18–19, 41; AMLC Proposal claimed’’). 237 Id. at 59. at 10–11. 228 MLCI Proposal at 7. 238 Id. at 61.

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event, it ‘‘will seek bridge funding to songwriters; has worked with at least and unrealistic.255 Noting that AMLC’s cover any gaps,’’ and expresses one of the major digital service cost projections are far below the $30 confidence that ‘‘its extensive network providers (‘‘DSPs’’); and has distributed million annual cost estimate provided of support and trust throughout the at least $100 million to rightsholders by the Congressional Budget Office industry, and the reputations of its each year for the last two years.246 (‘‘CBO’’),256 MLCI argues that AMLC’s leadership, will assist it in obtaining Having held discussions with four budget ‘‘would result in a grossly support for its continued primary vendors, AMLC ‘‘expects to underfunded collective that could not operations.’’ 239 MLCI expects to have engage foundational vendors’’ DataClef diligently protect the rights and no need to apply unclaimed royalties to and MRI to enable it to provide a royalties of songwriters and copyright defray costs, though it notes that the comprehensive interoperable owners.’’ 257 Other commenters, some 247 statute permits it to do so on an interim database. It notes that DataClef has but not all affiliated with AMLC, 240 basis. access to the CIS–NET Works praised AMLC’s approach as reflecting Information Database (‘‘WID’’), which b. AMLC the advantages of a startup or small includes over 81.1 million musical company, or otherwise favored its AMLC aspires to adopt a leaner 248 works. Beyond these vendors, AMLC proposed budget.258 approach to these issues. Upon its states that additional incumbent entities launch, it will rely on incumbent employed by DSPs have confirmed that Indeed, in some instances it is unclear services and vendors that have been if AMLC is designated, they would play whether AMLC’s budget estimates ‘‘vetted and approved’’ by the Digital a role if requested or needed.249 anticipate each of its statutorily required Media Association (‘‘DiMA’’).241 It In response, MLCI expresses concern activities in the manner it envisions intends to add technology applications, regarding the perceived lack of executing them, which makes it difficult features, and solution providers explanation of AMLC’s RFI process, and to assess AMLC’s degree of advance incrementally over time ‘‘as a series of doubts the ability of the potential AMLC planning. For instance, AMLC does not steps on top of [this] pre-existing solid vendors to provide key capabilities such indicate which expenditures are foundation.’’ 242 AMLC reports that it as access to relevant databases, encompassed by its ‘‘OpEx’’ budget ‘‘has taken significant input from key specifically challenging whether AMLC item, which averages approximately stakeholders, potential vendors, will be legally entitled to access the $600,000 per year during its first two performing rights organizations, labels, WID for its purposes.250 full years.259 By comparison, MLCI’s and most importantly, publishers and AMLC submitted substantially lower estimated operational costs include songwriters in formulating [its] cost estimates for its activities, specific line items for premises, office technology plan,’’ and states that it will estimating total costs of approximately expenses, accounting services, finance have further discussions in designing $43.9 million for its first five years, and insurance, and travel expenses, and implementing solutions if it is broken out across fewer categories than among other expenditures.260 The 243 251 designated. It intends to hire eleven MLCI. Like MLCI, AMLC intends to comparative lack of specificity calls into employees, and ha engaged a technology negotiate with DiMA on a final budget question the extent to which AMLC consultant.244 However, AMLC cautions to be submitted to the CRJs for considered the full range of the MLC’s that ‘‘although there ha[ve] been approval.252 AMLC does not intend to necessary operational costs. Similarly, significant discussions and planning utilize debt, except perhaps during the AMLC projects annual expenditures of . . . much of the details need to be initial MLC startup phase.253 AMLC formalized once the mandate decision is believes it is inappropriate to apply approximately $600,000 to $730,000 for made.’’ 245 songwriters’ and publishers’ royalties to licensing and legal activities for the first 261 AMLC established several cover the MLC’s operating costs, but five years of its operation. It is requirements that potential vendors states that interest income earned from unclear whether these allocated must meet, including that the entity is the unclaimed accrued royalties may be amounts fully anticipate the MLC’s ‘‘in good standing’’; has no pending used to defer initial operating costs statutory obligations in this area, which litigation; has worked with or for the during the startup phase.254 include participating in Copyright major music publishers, independent MLCI characterizes AMLC’s budget Office rulemakings and the CRJs’ music publishers, and self-published and development timeframe as vague administrative assessment proceedings, and ‘‘[e]ngag[ing] in legal and other 239 Id. 246 AMLC Ex Parte Meeting Summary at 7–8. efforts to enforce rights and obligations’’ 240 Id. at 61–62 (citing 17 U.S.C. 115(d)(7)(C)). 247 AMLC Proposal at 4; see also AMLC Ex Parte under section 115(d), ‘‘including by 241 AMLC Proposal at 4. Meeting Summary at 8–9 (indicating AMLC filing bankruptcy proofs of claims for 242 Id. selected DataClef as their vendor, as well as a amounts owed under licenses’’ or 243 Id. at 6. continued willingness to consider other vendors). 248 commencing actions for damages and 244 Id. at 26. AMLC Proposal at 7–8. It is unclear how DataClef qualifies as a vendor under AMLC’s 262 245 Id. at 6. AMLC subsequently reported that injunctive relief in federal court. criteria, as it was launched in late 2018 and would although several vendors have agreed to work with not have distributed at least $100 million over the 255 it in the event it is selected as the MLC, many ‘‘were last two years. See SOCAN Launches Dataclef MLCI Reply at 25–29. concerned [that] they would suffer negative Music Services (Oct. 22, 2018), https:// 256 CBO, Congressional Budget Office Cost consequences if they were listed in the AMLC www.socan.com/socan-launches-dataclef-music- Estimate, S. 2823 Music Modernization Act (Sept. application.’’ AMLC Ex Parte Meeting Summary at services/. 12, 2018, revised Sept. 17, 2018), https:// 8. To the extent such vendors believe they are 249 AMLC Proposal at 4. www.cbo.gov/system/files/2018-09/s2823.pdf. prohibited from contracting with both candidates, 250 257 MLCI Reply at 25. that understanding is not supported by the statute. MLCI Reply at 22–24 (‘‘Access to the CIS–NET 258 See Peter Jessel Reply at 1; Peter Resnikoff As noted in the NOI, ‘‘while the statutory language WID is a benefit for CISAC member societies, but Reply at 1; H. Hendricks Reply at 1; Alfons authorizes the MLC to arrange for services of a CISAC member like SOCAN would not have Karabuda Reply at 1; Betsy Tinney Reply at 1. outside vendors, nothing suggests that such a authority to sublicense the WID to anyone else it 259 vendor must offer exclusive services to that MLC wants, be it DataClef or the collective.’’). See AMLC Proposal at 28. 251 candidate.’’ NOI at 65749. At the same time, the AMLC Proposal at 28. 260 See MLCI Proposal at 32. statute does not regulate parties’ ability to enter into 252 Id. 261 AMLC Proposal at 28. exclusive relationships or other arrangements that 253 Id. at 28–29 (outlining potential sources of 262 17 U.S.C. 115(d)(3)(C)(i)(VIII)–(XI); id. at may affect the information that can be disclosed in debt financing). 115(d)(6)(C)(i); see also AIPLA, 2017 Report of the the candidates’ submissions. 254 Id. at 29. Economic Survey 44 (2017).

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ii. Ownership Information, Matching, MLCI ‘‘would undertake targeted formats.278 In its meeting with the and Claiming Process activities to clean and improve the Office, MLCI reiterated its intention to As noted, a key aspect of the MLC’s initial ownership and matching data accept submission of data in multiple collection and distribution using independent data assets . . . formats as a way to accommodate the responsibilities includes ingesting data drawing on MLC[I]’s unparalleled needs and technical sophistication of a regarding musical works and uses under access to data resources from its wide array of copyright owners. It also 271 the license, and identifying musical industry supporters.’’ While noting affirmed its commitment to education works and copyright owners, matching that all usage data would be run through and outreach, noting that such efforts them to sound recordings, and ensuring matching software, MLCI notes that it will inform the design of its rights portal plans to develop policies to address that a copyright owner gets paid as he and options for data submission.279 263 issues related to calibration of or she should. AMLC commits to continually Both proposals appropriately focus on confidence levels to ensure reliable this core task.264 As noted, both AMLC matching, and prioritization of manual engaging with stakeholders to monitor and MLCI intend to employ established processing through the operations and review new frameworks, and has and standard data formats and advisory committee in the context of established an advisory technology architectural practices to support data specific unmatched pools.272 MLCI committee comprised of members with exchange functions, including asserts that for at least two years beyond significant technology backgrounds.280 development of Application the license availability date, and AMLC plans to ‘‘build a robust interface Programming Interfaces (‘‘APIs’’) to perhaps longer, any previously accrued to allow for bulk transitions of catalog allow bulk processing of data for larger unmatched uses will be analyzed by the or individual ownership changes . . . to users 265 and supporting a variety of MLC matching systems and will be be properly updated through the chosen formats for new submissions ‘‘to publicly available on the rights portal authoritative data partners and 273 accommodate copyright owners who are for members of the public to claim. vendors.’’ 281 AMLC professes that its unable to convert data to standard MLCI adds that it intends to make system will be designed in part for self- formats themselves.’’ 266 Each expresses repeated attempts to match ‘‘until such published songwriters, who represent time as the Unclaimed Royalties a willingness to utilize current and the largest percentage of music owners Committee and the Board of Directors emerging technologies to match sound but in many cases have the lowest level recordings to musical works, including . . . determine that a distribution of those unmatched royalties is fair and of understanding of copyright hashes and watermarking or requirements.282 AMLC anticipates that 267 appropriate under the statute.’’ 274 fingerprinting technologies. Finally, incomplete DSP data will be analyzed both wisely point to usage reporting as MLCI contends that ‘‘[t]here is no and segmented based on the distributor the primary determinant with respect to standard format for modeling musical of the underlying recording, and prioritization of matching resources.268 works ownership agreement information In terms of populating ownership in databases,’’ as there is disagreement repeatedly expresses optimism that the information, MLCI envisions updates to over which terms are important to MLC and DSPs could work the database being built into industry capture, a problem paralleled in collaboratively to address such deals involving assignment of copyright capturing chain of title data.275 MLCI issues.283 interests, and by establishing a simple, therefore presumes a necessity to merge Regarding the claiming process user-friendly, and ADA-compliant web ‘‘information between databases,’’ specifically, MLCI is confident that its 269 which ‘‘can require complex portal. According to MLCI, ‘‘[o]nce ownership claiming portal will be reformatting of data.’’ 276 In response, the rights database, claiming portal, and usable by stakeholders of any license administration are fully DiMA suggested that ‘‘it may be more effective and efficient to focus efforts on sophistication level, and it will dedicate operational, the industry will have a staff to assist copyright owners with single, transparent, publicly-accessible increasing the accuracy of automated methods.’’ 277 DiMA also suggests that troubleshooting and claims resource for establishing and identifying submission.284 Likewise, AMLC intends ownership of mechanical rights.’’ 270 improving the standardization of metadata might be achievable at lower to utilize DataClef’s pre-built ‘‘claiming portal,’’ allowing copyright owners to 263 Indeed, many interested commenters focused cost by making such issues a focus of on these ‘‘core’’ or ‘‘principal’’ duties. See, e.g., education and outreach efforts, as search a database of unmatched and/or Recording Academy Reply at 3; DiMA Reply at 2. distinguished from the more labor- and partial ownership recordings, and 264 See Recording Academy Reply at 3 (‘‘Both cost-intensive approach of allowing data identify recordings of their have also demonstrated a clear commitment to the 285 rights of songwriters.’’). submission in a variety of different compositions. AMLC envisions 265 MLCI Proposal at 34–35, 37; AMLC Proposal implementing a change management at 5, 11, 15. Berklee College of Music and MIT 271 Id. module and reliance upon ‘‘chosen Connection Science also noted the importance of 272 Id. at 41; see also MLCI Ex Parte Meeting authoritative data partners and the MLC using standardized APIs open protocols Summary at 3 (stressing ‘‘the importance of robust 286 and accessibility. Berklee College of Music & MIT manual efforts to match uses and locate owners of vendors.’’ It proposes that its portal Connection Science at 2–5. works’’). will stream 30-second preview clips to 266 MLCI Proposal at 37; see AMLC Proposal at 10 273 MLCI Proposal at 43–44. (similar, referencing need to ingest comma 274 Id. at 44. The Recording Academy urged the 278 Id. at 10–11. separated values (‘‘CSV’’) files, Excel files, DDEX Register to seek further information on MLCI’s 279 MLCI Ex Parte Meeting Summary at 2–3. files, or data via an online user interface with fields commitments to match works and on when such 280 AMLC Proposal at 15–16, 36. that the end user will populate). commitments may reasonably be exhausted. See 281 267 AMLC Proposal at 16; MLCI Proposal at 48. Recording Academy Reply at 4–5. In its ex parte Id. at 10. 268 MLCI Proposal at 41 (stating ‘‘[t]otal royalties meeting with the Office, MLCI reiterated its 282 Id. accrued has been a common metric for intention to ‘‘exceed the statutory minimums 283 See, e.g., id. at 4 (‘‘our first priority is to meet prioritization, simply because it aims to minimize related to notice and distribution in order to with DiMA members and other DSPs to collaborate, the total amount of unmatched royalties’’ and that maximize matching success.’’ MLCI Ex Parte white-board, diagram/discuss and further work ‘‘[u]sage and vintage of usage are metrics that are Meeting Summary at 3. through technology topics’’). related to total royalties’’); AMLC Proposal at 12. 275 MLCI Proposal at 36. 284 MLCI Proposal at 37 & n.6. 269 MLCI Proposal at 37 & n.6. 276 Id. 285 AMLC Proposal at 9. 270 Id. at 34. 277 DiMA Reply at 10. 286 Id. at 9–10.

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allow rightsholders to confirm iii. Dispute Resolution handle large data sets.302 They also each matches.287 commit to establishing an information In response to the Office’s request for As noted, the MLC dispute resolution security management system that is ‘‘target goals or estimates for matching committee will establish policies and certified with ISO/IEC 27001 and meets works in each of the first five years,’’ 288 procedures for copyright owners to the EU General Data Protection MLCI states that its target ‘‘is, and will address disputes relating to ownership Regulation requirements, and other always be, 100% success.’’ 289 But it interests in musical works. Neither applicable laws, and to employing argues that because match rates are candidate has developed detailed redundancy practices to minimize data easily manipulated, ‘‘the critical procedures governing this committee’s loss.303 question is not match rate, but the activities, but both provided sufficient While its policies and procedures for quality of matches.’’ 290 Therefore, MLCI information regarding their accessing information in the databases will ‘‘fine-tune[ ]’’ its algorithms based understanding of the scope of its are not yet finalized, MLCI commits to on system complaints, feedback, and responsibilities. following the regulations promulgated disputes, and will investigate inaccurate MLCI will address disputed claims of by the Register concerning ‘‘the matches.291 MLCI also notes that it will ownership using existing tools usability, interoperability, and usage explore developments in algorithms, commonly used in the industry, restrictions of the musical works machine learning, and artificial including algorithms used to detect database.’’ 304 intelligence.292 fraud, establishing a process by which AMLC proposes two types of access to For its part, AMLC believes that it can users can be authenticated, and tracking the musical works database. First, the establish a dataset of 80 million works changes made by MLCI employees.296 It general public would have access to ‘‘a and recordings, ‘‘with corresponding notes that its dispute resolution minimal amount of data that is generally works that are matched with high committee and board have extensive available to the public already.’’ 305 confidence to recordings of experience in ownership matters, Second, AMLC will offer ‘‘DSPs and approximately 70%, or 56 million including the role of abandoned other key constituents’’ access to feeds 293 works.’’ It estimates that the property laws, processes for validating with ‘‘more comprehensive data that is percentage of works matched will copyrighted arrangements of public generally not public, but necessary for 294 exceed 90% by 2024. AMLC’s domain works, public domain fraud, proper royalty and ownership estimates are based on several key and implementation of legal holds.297 processing (such as splits, territorial assumptions, including 15% growth per 306 Similarly, AMLC states that its rights etc.).’’ It proposes to develop year in works and recordings used in data access rules ‘‘in collaboration covered activities.295 conflict resolution committee will recommend and implement policies to between publishers’’ to ensure Based on these submissions, the confidentiality and compliance with Copyright Office finds that both address discrepancies, disputes, and fraudulent claims.298 It reiterates that it domestic and international privacy and candidates have demonstrated a data security policies.307 AMLC’s reasonable ability to acquire and build will work with DSPs to identify the origin of false claims and create submission does not explicitly the necessary data processing acknowledge the statutory requirements capabilities for ownership incentives for distributors to reduce fraud.299 As noted above, it also for provision of access, although identification, matching, and claiming elsewhere AMLC has pledged to processes. In particular, the Office envisions employing a robust data 300 conform any policies to subsequent appreciates the level of detail provided change management module. regulatory activities.308 by both entities on their approach to In ex parte meetings, both MLCI and Based on this information, the Office matching works, description of plans to AMLC confirmed their understanding finds that both MLCI and AMLC have implement public claiming portals, and that the dispute resolution committee’s the capability to maintain and provide commitment to prioritizing usage, or role does not include adjudicating access to the required public database of total royalties accrued, when focusing ownership disputes on the merits. musical works. The Office appreciates on minimizing the incidence of Rather, both expressed their each entity’s commitment to ensure unmatched sound recordings. The understanding that the committee’s compliance with all relevant legal Office also appreciates that both function is limited to the establishment obligations with respect to privacy and candidates intend to adhere to of policies and procedures to govern the security. established formats for data transfers, as resolution of such disputes. well as use standard identifiers v. Notices of License, Collection and currently used by the global music iv. Maintenance of Musical Works Distribution of Royalties, Including industry. The Office expects the Database Unclaimed Accrued Royalties selected designee to follow through on The Office requested input regarding The MLC’s administrative role these commitments, to continue to the operation and maintenance of a includes accepting notices of license explore technological developments in well-functioning database, including (and terminating them when the matching works, and to publicly specific information on how each entity licensee is in default), and collecting disclose and update the methods used would address issues of security, and distributing royalties for covered in its matching efforts. redundancy, privacy, and transparency.301 Both depict a 302 AMLC Proposal at 16; MLCI Proposal at 49; 287 Id. at 9. technological approach that is fully see also DiMA Reply at 9–10 (addressing potential 288 NOI at 65751. scalable and reliable, with the ability to volume of transactions to be processed by the MLC). 289 MLCI Proposal at 42. 303 MLCI Proposal at 50; AMLC Proposal at 17. 290 Id. at 43. 304 MLCI Proposal at 50 (quoting 17 U.S.C. 291 MLCI Proposal at 43; see also MLCI Ex Parte 296 MLCI Proposal at 44–45. 115(d)(3)(E)(vi)). Meeting Summary at 2–3. 297 Id. at 45–46. 305 AMLC Proposal at 17 (detailing fields with 292 MLCI Proposal at 39. 298 AMLC Proposal at 14. respect to musical works and sound recordings). 293 AMLC Proposal at 12. 299 Id. 306 Id. 294 Id. at 12. 300 Id. at 10. 307 Id. 295 Id. at 12–13. 301 NOI at 65751. 308 Id. at 78 (AMLC bylaw art. 3).

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activities, including unclaimed funds collection of valid documentation (e.g., reasons, MLCI has made a more after the prescribed holding period.309 IRS Forms W–8 and W–9), persuasive showing with respect to With respect to notices of license, administration of information these requirements. MLCI reports that it ‘‘will strictly statements and other reporting With respect to the distribution of enforce the monthly reporting requirements (e.g., IRS Forms 1099 and unclaimed, accrued royalties, the requirements under Section 1042), and, where applicable, the Copyright Office agrees with MLCI that 115(d)(4)(A), and will promptly issue accurate withholding and depositing of the statute does not permit the first such notices of default and terminations of U.S. tax payments.’’ 317 It also notes that distribution to occur before January 1, licenses where applicable.’’ 310 It adds its board members have experience 2023.324 The Office also agrees that that it will distribute royalty pools overseeing all aspects of royalty unclaimed accrued royalties may be obtained through legal proceedings to payment processing.318 retained beyond the statutory holding copyright holders based on usage AMLC does not specifically address period.325 reports and that where funds do not timing of initial and annual distribution vi. Education and Outreach match the full amount of royalties due, of unclaimed royalties, instead they would be distributed on a pro rata emphasizing that it intends to keep Both candidates appear to have basis.311 AMLC notes that its board distribution of unclaimed royalties to developed multifaceted education and the lowest possible limit, and to only outreach plans to fulfill this statutory members have ‘‘extensive experience in 326 all matters of resolution of royalty make such distributions ‘‘as a last resort duty. MLCI notes that it is already collections and payments, including after every possible effort is put into engaged in significant education and identifying the rights holder(s).’’ 319 It outreach efforts to inform the relevant bankruptcy proceedings,’’ and therefore 327 it will be well positioned to adopt further notes that its unclaimed industries and the general public. It policies ‘‘to manage all known royalties committee will seek to develop plans to continue these efforts through the MLC’s launch, and thereafter will situations’’ related to licensee and a policy ‘‘to ensure the reserve fund is ‘‘provide regular information and licensor payments.312 sized and managed appropriately.’’ 320 updates to the public,’’ including With respect to distributions, MLCI In addition, AMLC plans to use through ‘‘press releases, social media, intends to provide ‘‘prompt, complete, actuarial data to make more accurate articles and advertisements in trade and accurate payments to all copyright projections regarding accrued and publications, and speaking engagements owners.’’ 313 It interprets section unclaimed liquidations, interest earned, at music industry events, conferences, 115(d)(3)(J)(i)(I)—which provides that and potential claims.321 and festivals.’’ 328 MLCI notes that its the first distribution of unclaimed AMLC will outsource royalty payment board includes prominent music accrued royalties ‘‘shall occur on or to established payment vendors, ‘‘or an industry professionals who will use entity that . . . has built the needed after January 1 of the second full their expertise and connections to workflow/infrastructure into the calendar year to commence after the ensure that information is disseminated existing work process that can be license availability date’’—to provide throughout the industry.329 that no such distribution shall occur repurposed for AMLC distributions, AMLC has developed a strategy 314 322 prior to 2023. Additionally, MLCI such as . . . MRI and/or DataClef.’’ focused on three tasks: Engagement, This entity ‘‘will also be responsible for interprets the statute as providing education, and follow-up efforts.330 It the storage of personal information discretion to retain unclaimed accrued seeks to reach as many potential users (including tax ID, name, address, bank royalties beyond the statutory holding as possible through a variety of info etc.) under security compliant period to allow for additional efforts at channels, including advertising, social systems.’’ 323 matching and claiming, and promises to media, industry conferences, and In general, the Office is persuaded do so where there is ‘‘reasonable sponsorships, and relying on its own that both candidates, through vendors or evidence’’ that such efforts may bear board members’ connections.331 It 315 a combination of vendors and in-house fruit. It is committed to diligent specifically commits to making capabilities, are capable of carrying out efforts to match uses and works, information available in ‘‘English, functions relating to collection and including ‘‘robustly and relentlessly’’ Spanish, and additional languages on an deploying its matching system with distribution of royalties. As with some other requirements, however, MLCI’s respect to unmatched works, and 324 See 17 U.S.C. 115(d)(3)(J)(i)(I) (‘‘The first such holding unclaimed accrued royalties submission provides a more thorough distribution shall occur on or after January 1 of the beyond the statutory eligibility for explanation of how it would approach second full calendar year to commence after the distribution, to obtain more matches, these matters. It articulates several license availability date, with not less than 1 such policies it intends to implement to distribution to take place during each calendar year and distribute more royalties to rightful thereafter.’’). 316 owners. maximize matching, including holding 325 See id. at 115(d)(3)(H)(i) (‘‘The mechanical MLCI further states that its royalty accrued royalties beyond the statutory licensing collective shall hold accrued royalties payment systems will comply with holding period, making information on associated with particular musical works (and unmatched works available on a public shares of works) that remain unmatched for a relevant tax law obligations, ‘‘including period of not less than 3 years after the date on portal, and undertaking outreach and which the funds were received by the mechanical 309 17 U.S.C. 115(d)(3)(C)(i)(I)–(II). education efforts. Moreover, AMLC does licensing collective, or not less than 3 years after 310 MLCI Proposal at 51. not specifically address MLC functions the date on which the funds were accrued by a 311 Id. at 52. regarding notices, recordkeeping, and digital music provider that subsequently transferred 312 AMLC Proposal at 18. collection under the license. For these such funds to the mechanical licensing collective 313 MLCI Proposal at 52. pursuant to paragraph (10)(B), whichever period expires sooner.’’) (emphasis added). 314 17 U.S.C. 115(d)(3)(J)(i)(I); MLCI Proposal at 317 Id. at 51. 326 52. See generally, MLCI Proposal at 62–63; AMLC 318 Id. Proposal at 30–33. 315 Id. at 52–53. 319 AMLC Proposal at 18–19. 327 MLCI Proposal at 62. 316 Id. at 43–44, 53–54 (discussing ‘‘mak[ing] 320 328 information on its unmatched works available to Id. at 19. Id. at 63. the public on its rights portal’’ and undertaking 321 Id. 329 Id. ‘‘significant outreach to educate the public on 322 Id. at 18. 330 AMLC Proposal at 30–33. accessing this information and making claims’’). 323 Id. 331 Id. at 30.

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as needed basis for targeted songwriting vii. Copyright Office’s Analysis of) the statutory license, under legally- communities where the MLC mandated timeframes. determines special outreach is Overall, the submissions suggest that MLCI’s proposal as a whole reflects a needed.’’ 332 AMLC also plans to both MLCI and AMLC have or will have more realistic understanding of the produce a series of tutorial videos on the basic administrative and MLC’s responsibilities under this new specific aspects of the royalty collection technological capabilities to perform the system and indicates that it is better and distribution process.333 required functions under the statute. For positioned to undertake and execute the the reasons discussed above, however, full range of administrative functions The Recording Academy asserts that MLCI has demonstrated a greater required of the MLC within these ‘‘[w]ithout an effective outreach capacity to carry out several of these critical first five years.344 The Office program, the Collective will not responsibilities. In particular, it is expects that MLCI will build upon its 334 succeed.’’ While noting that both apparent that MLCI has established a considerable planning in a flexible and proposals contain information regarding more detailed operational framework conscientious manner that also public outreach, the Recording and has garnered input from a broader considers input from the to-be- Academy suggests that both are set of interested parties. MLCI’s designated DLC non-voting or insufficiently detailed with respect to submission reflects substantially more committee members, as well as the clear and executable plans, and how detailed planning with respect to broader musical work copyright owner each will measure the effectiveness of organizational structure, vendor and songwriting communities. outreach.335 The Office questioned each selection, and collection and B. Digital Licensee Coordinator candidate about specific plans and distribution procedures. metrics in subsequent meetings. AMLC The Office received one proposal, by Indeed, the Recording Academy, a 345 expressed a variety of ambitious rare organization to withhold DLCI, for designation as the DLC. DLCI’s founding members are five of the outreach ideas, although it was not endorsement until it was able to study largest digital music providers—Spotify necessarily clear whether it had yet each candidates’ proposals, weighed in USA Inc., Apple Inc., Amazon Digital established a specific plan and timeline on the perceived capabilities of the two Services LLC, Google LLC, and Pandora (or whether all intended activities were proposals, ultimately endorsing MLCI 336 Media, LLC. DLCI’s submission includes reflected in its budget planning). ‘‘upon careful consideration of both a proposal directly responding to the MLCI represented that ‘‘numerous submissions.’’ 341 While praising the NOI, and a variety of supporting educational and outreach documents AMLC’s commitment and role in documents such as a certificate of have been drafted and release is ‘‘opening up dialogue’’ on issues with incorporation, bylaws, and a five-year pending the determination on respect to transparency and board designation.’’ 337 It plans to utilize focus business plan.346 For the reasons representation, the Academy noted that described below, the Register has groups with respect to design of the MLCI’s ‘‘submission embodies a rights portal, and leverage its board and concluded that DLCI meets each of the thoughtful, meticulous, and statutory criteria required of the digital committee members, as well as comprehensive approach,’’ concluding endorsers, in national and international licensee coordinator, and that each of its that it was ‘‘best equipped to satisfy’’ individual board members are well- outreach.338 342 the duties of the MMA. qualified to perform the statutory Ultimately, the Office finds that both For somewhat similar reasons, the functions. Accordingly, the Register candidates have the capability to Copyright Office concludes that MLCI is designates DLCI and its members, with undertake the education and outreach better equipped to operationalize the the Librarian’s approval. efforts required of the MLC. Following many statutory functions required by As noted above, in designating a DLC, this designation, the selected entity the MMA. To be sure, AMLC’s goals and the Register must apply similar statutory should work with the Office, the DLC, principles are laudable, and its criteria regarding nonprofit status, and other stakeholders to ensure that submission includes a number of ideas endorsement (from digital music rightsholders are adequately informed that should be given further providers in this instance), and ability about the new licensing framework and consideration. But while AMLC’s leaner to perform the DLC’s administrative the MLC’s functions. These efforts approach potentially could provide capabilities. Unlike the MLC, the should include ‘‘clear benchmarks that certain benefits, MLCI’s planning and Register may decline to designate a DLC measure [the MLC’s] outreach organizational detail provide a more if she is unable to identify an entity that effectiveness so that it can modify and reliable basis for concluding that it will fulfills each of the statutory adapt its strategies and tactics to best be able to meet the MLC’s qualifications; in that event, the serve the entire songwriter administrative obligations by the license statutory references to the DLC go community.’’ 339 In addition, as per availability date.343 The MLC is not a without effect unless or until a DLC is Congress’s directive, the Office will start-up venture or small business that designated.347 But designation of a DLC consider best practices in education and can adjust its rollout timing or pivot its would allow that entity to start doing outreach efforts as part of its study on focus; rather, it is tasked with important work. The DLC’s authorities unclaimed royalties.340 establishing, for the first time, a and functions include enforcing notice complex and highly regulated and payment obligations with respect to 332 Id. administrative framework designed to the administrative assessment, 333 Id. at 32–33. serve all who are subject to (or make use publicizing the ability of copyright 334 Recording Academy Reply at 5. owners to claim unmatched musical 335 Id. at 5–6. 341 Recording Academy Reply at 2–3. The 336 See AMLC Ex Parte Meeting Summary at 17– Recording Academy noted that it represents 344 Indeed, MLCI has pointed out that its budget 20. ‘‘thousands of working songwriters and composers, is far more in line with the CBO estimate than is 337 MLCI Ex Parte Meeting Summary at 3. many of whom are independent, self-published, or AMLC’s. MLCI Reply at 25. 338 Id. unaffiliated songwriters.’’ Id. at 1. 345 DLCI Proposal at Ex. A–1–2 (certificate of 339 Recording Academy Reply at 5. 342 Id. at 3. incorporation). 340 Public Law 115–264, sec. 102(f), 132 Stat. at 343 AMLC’s failure to file a reply comment in this 346 See DLCI Proposal. 3722–23. proceeding underscores this conclusion. 347 17 U.S.C. 115(d)(5)(B)(iii).

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work royalties through the MLC, director.352 ‘‘Subject to input from and a meeting schedule, and a structure for appointing representatives of digital discussion with the MLC,’’ DLCI collecting dues and funding the DLC.363 music providers to the MLC’s operations anticipates designating a non-director, 2. Endorsement advisory committee and generally officer, or employee to serve as the non- representing digital music providers’ voting member of the MLC board; this Under the second designation interests as a non-voting member on the potentially may be DiMA’s CEO.353 criterion, the DLC must be ‘‘endorsed by MLC board, and participating in and enjoy[ ] substantial support from In response to a request from the proceedings before the CRJs and the digital music providers and significant Office, DLCI named its representatives Copyright Office.348 As a result, it is nonblanket licensees that together to the MLC’s operations advisory represent the greatest percentage of the important that the DLC is a well- 354 qualified representative of both digital committee. Because MLCI and AMLC licensee market for uses of musical music providers who take advantage of proposed different numbers of their own works in covered activities, as measured the section 115 blanket license and representatives to the operations over the preceding 3 calendar years.’’ 364 significant nonblanket licensees who advisory committee (six and four, The Office asked for ‘‘an explanation of will benefit from the new MLC database. respectively), DLCI stated that it will how the proposed DLC has verified, ‘‘work with the [designated] MLC to calculated, and documented such 1. Organization, Board Composition, finalize the appointees to the Committee endorsement and substantial support, and Governance following designation.’’ 355 DLCI also including how the licensee market was calculated.’’ 365 In response, DLCI Beginning with the first required anticipates creating several committees indicated that it interprets the statutory statutory qualification, DLCI’s proposal not required by the MMA. The term ‘‘uses’’ as referring to ‘‘actual use sufficiently demonstrates that it is a Executive Committee will exercise the of music pursuant to covered activities,’’ nonprofit created to carry out powers of the board, if and when the 356 and that such use could be measured in responsibilities under the MMA. DLCI is board exceeds nine members. The ‘‘number of subscribers, number of a Delaware nonprofit ‘‘organized to Compliance Committee will be streams, or amount of royalties represent digital music providers in responsible for ‘‘receiving and following paid.’’ 366 DLCI stated that Congress connection with the administration of up on reports from the MLC of non- 357 could have chosen a different term if it the mechanical license provided under compliant nonblanket licensees.’’ wanted to measure endorsement by Section 115 of the United States The Regulatory Committee will engage reference to, for example, a percentage Copyright Act.’’ 349 DLCI thus satisfies in both CRJ and Copyright Office of music providers engaged in covered the first statutory criterion that it be a proceedings.358 And the Re-Designation activities or the number of musical single nonprofit entity created to carry Committee will prepare for a possible works available.367 DLCI did not out certain statutory responsibilities.350 redesignation of DLCI as the DLC.359 disclose usage metrics for its member DLCI’s board is composed of the DLCI’s bylaws outline rules governing companies, stating that for ‘‘any following initial members: Nick membership eligibility, voting, and individual music service’’ usage metrics Williamson (Apple, Inc.), Lisa Selden dues; meetings and schedules; its board, are ‘‘extremely confidential and (Spotify), Sarah Rosenbaum (Google), committees, and officers; and other proprietary.’’ 368 Instead, DLCI offered James Duffett-Smith (Amazon Music), rules and operational provisions. DLCI aggregated metrics provided by the and Cynthia Greer (Sirius XM Radio creates three classes of membership Harry Fox Agency (‘‘HFA’’) and MRI. Inc., the parent of Pandora Media, LLC). (principal, charter, and general); until This information indicated that DLCI Collectively and individually, these 2024, the principal members are DLCI’s members ‘‘represented by [HFA and individuals have a significant and founding members.360 Beginning in MRI] combined had over 84% of the diverse background in the music 2024, the principal members will be aggregate streams, over 94% of the licensing marketplace, including determined on a share basis by those aggregate subscribers, and over 88% of representing digital music providers and charter members with the five highest the aggregate royalties paid’’ over the in music database administration, and stream counts, determined every two last three years.369 thus qualify for appointment to the years.361 Charter members are those The Copyright Office is tasked with board.351 DLCI has selected three who have adhered to the mission and evaluating the support of both digital officers: James Duffett-Smith as board standards of DLCI for at least two years music providers who will use the chair, Sarah Rosenbaum as treasurer, and have paid relevant dues.362 The blanket license as well as significant and Lisa Selden as secretary, and bylaws also set out the voting structure, nonblanket licensees.370 But since it is anticipates hiring an executive currently before the license availability 352 DLCI Ex Parte Meeting Summary at 1 (June 4, date, it is unclear which digital music 348 See generally, id. at 115(d)(5)(C). 2019); DLCI Proposal at Ex. B–18. providers will be taking advantage of 349 DLCI Proposal at Ex. C–1; id. at Ex. A–1 353 DLCI Proposal at 8; see id. at Ex. B–16–18. (certificate of incorporation) (stating that ‘‘[n]o part 354 Letter from DLCI to U.S. Copyright Office at 363 Meetings will be as-needed and at least of the net earnings of [DLCI] shall inure to the 1 (June 13, 2019) (proposed committee members are annual, with specified advance notice. Id. at Ex. B– benefit of, or be distributable to, its members, Lisa Selden (Spotify), Nick Williamson (Apple 7. All members have one vote, with some trustees, directors, officers or other private Music), Alan Jennings (Amazon), Alex Winck exceptions. Id. at Ex. B–4. DLCI’s annual budget is persons.’’). (Pandora Media LLC), and Jennifer Rosen (Google dues-funded; at least 60% of is paid for by Charter 350 17 U.S.C. 115(d)(5)(A)(i). Play Music and YouTube Music)); see also DLCI Members and not more than 40% will be paid for 351 DLCI Proposal at Ex. C–14–17 (for example, Proposal at Ex. C–12. by General Members. Id. at Ex. B–5. The board may Williamson previously headed the ‘‘music industry 355 Letter from DLCI to U.S. Copyright Office at also approve special assessments under certain technical standards body, DDEX’’; Selden works to 1. circumstances. Id. at Ex. B–5–6. improve copyright matching at Spotify and, while 356 DLCI Proposal at Ex. B–13–14. 364 17 U.S.C. 115(d)(5)(A)(ii). at ASCAP, processed royalties ‘‘for Amazon, Apple, 357 Id. at Ex. C–7. 365 NOI at 65753. Pandora and YouTube’’; Rosenbaum has experience 358 Id. at Ex. C–11. 366 DLCI Proposal at 4–5. at both Google and Music Reports, where she 359 367 launched a section 115 rights-claiming portal; and Id. at Ex. C–12–13. Id. at 4. Duffett-Smith and Greer each have over fifteen 360 Id. at Ex. B–2–3. 368 Id. at 5. years of experience licensing music for digital 361 Id. at Ex. B–3. 369 Id. at 5–6 (emphasis omitted). services). 362 Id. at Ex. B–2–3. 370 17 U.S.C. 115(d)(5)(A)(ii).

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the blanket license. DLCI does not music services relating to the designated.’’ 381 Should the describe whether its founding members mechanical license provided under administrative assessment be decided would qualify as significant nonblanket Section 115, including through the by the CRJs, DLCI suggests it is licensees or blanket licensees but states specific authorities and functions ‘‘uniquely positioned to support the that it is ‘‘committed to soliciting other identified in the statute.’’ 374 It will [Copyright Royalty Board] in its interested licensee services to ‘‘fairly represent digital licensee assessments of ‘reasonable costs,’ based participate in all aspects of the DLC’’ services, and effectively coordinate with on its members’ experience with large- and plans to ‘‘bolster its support and the MLC, to help realize the goals of the scale data management practices.’’ 382 endorsement’’ going forward.371 MMA to provide licensing efficiency While it does not endorse either In submitting the aggregated HFA and and transparency, and to ensure that the candidate for the MLC, DLCI has been MCI metrics, DLCI offers three different new blanket licensing system is, and communicating with the two MLC criteria for evaluation (i.e., subscribers, remains, workable for digital music candidates ‘‘to support the development streams, or royalties paid). As the providers as well as copyright of efficient MLC operations and foster a statutory language here is similar to the owners.’’ 375 DLCI describes its collaborative working relationship’’ MLC endorsement/support criteria,372 administrative capabilities as being regarding payment enforcement the Office believes that the DLC ‘‘managed by subject-matter experts responsibilities.383 endorsement/support standard is with relevant industry experience and MLC Participation. DLCI hopes that intended to parallel the MLC standard. relationships’’ to ‘‘carry out its statutory its representatives ‘‘will be able to help Thus, the entity designated as the DLC functions and help ensure that the facilitate discussions between the MLC should be endorsed and supported by blanket licensing system is and DLC regarding the ongoing digital music providers and significant implemented successfully, to the benefit evaluation of the administrative nonblanket licensees that together paid of all stakeholders in the industry.’’ 376 assessment, and help streamline any the largest aggregate percentage (among Membership. Although DLCI potential [Copyright Royalty Board DLC candidates) of total royalties from represents a large swath of the relevant assessment] proceedings’’ and the use of their musical works in licensee market, it does not represent all apportionment.384 While the covered activities in the United States licensees, and presumably the market administrative assessment proceeding during the statutory three-year period. will see new entrants over the next five will be conducted by the CRJs and its In any event, DLCI is the sole candidate, years.377 Indeed, DLCI’s membership is cost is beyond the ambit of the and each criterion signals support over identical to DiMA’s membership. DLCI designation process, the Office notes 80% of the relevant pool. DLCI thus has explained that it is committed to that in some areas, DiMA—whose satisfies the second statutory criterion growing its membership to other DSPs membership is coextensive with DLCI’s for designation. and it is confident it will do so, noting founding and current members— 3. Administrative and Technical that any digital music provider or appeared to envision a narrower range Capabilities significant nonblanket licensee can of activities, such as those related to become a member of DLCI and smaller manual claims processing and General. In response to questions enforcement, than either of the MLC regarding its administrative capabilities, licensees will enjoy some protections, as the bylaws require certain actions to be candidates.385 Given the nascent status DLCI submitted a five-year business of operations, the Office would expect plan, which includes plans for passed by a supermajority of members.378 DLCI’s bylaws further DLCI’s participation on the MLC board establishing and enforcing to be flexible, as the Office expects from administrative assessment payment outline how different membership tiers will be charged dues, and its business the MLC. In any event, DLCI suggested obligations, identifying unmatched that coordination and communication musical work owners, including plan explains that operating expenses will be ‘‘modest, and intend[ed] to may improve following conclusion of outreach, participating in MLC the designation process. governance and CRJ proceedings, minimize overhead costs to the extent possible.’’ 379 Confidentiality. To fulfill its statutory maintaining records of its activities, and function of records maintenance, DLCI 373 Administrative Assessment. DLCI an anticipated budget. selected a secretary who will be asserts that it wishes to ‘‘minimize the DLCI’s ‘‘primary purpose will be to responsible for ‘‘ensuring that books, need for contested proceedings or coordinate the activities of the digital reports, statements, certificates, and all enforcement actions, by prioritizing other documents and records are 371 negotiations and cooperation among DLCI Proposal at 6–7; see also Oversight of the properly kept and filed’’ 386 and for U.S. Copyright Office, Hearing Before the H. Comm. licensees and the MLC.’’ 380 DLCI is on the Judiciary, 116th Cong. (2019) (statement of developing an agreement regarding the ‘‘managing the confidentiality and Rep. Escobar) (indicating that the DLC should not security of sensitive information’’ overlook smaller digital platforms and new market apportionment of the administrative 387 assessment among the digital music shared between it and the MLC. With entrants). respect to confidentiality and the DLC 372 Compare 17 U.S.C. 115(d)(5)(A)(ii) (The DLC licensees and significant non-blanket shall be ‘‘a single entity that . . . is endorsed by licensees ‘‘and expects to be able to representative on the MLC board, DLCI and enjoys substantial support from digital music states that in addition to designating a providers and significant nonblanket licensees that establish a plan for that allocation before—or shortly after—the DLC is together represent the greatest percentage of the 381 Id. at Ex. C–4, C–5. licensee market for uses of musical works in 382 Id. at Ex. C–6. covered activities, as measured over the preceding 374 DLCI Proposal at Ex. C–1. 383 3 calendar years.’’), with id. at 115(d)(3)(A)(ii) (The Id. at Ex. C–3. 375 Id. at Ex. C–2. 384 MLC shall be ‘‘a single entity that . . . is endorsed Id. at Ex. C–9–10. 376 by, and enjoys substantial support from, musical Id. at Ex. C–13. 385 Compare DiMA Reply Comments at 10, and work copyright owners that together represent the 377 For example, DLCI membership does not DLCI Ex Parte Meeting Summary at 2, with MLCI greatest percentage of the licensor market for uses include TIDAL, Deezer, Soundcloud, iHeartRadio, Proposal at 36 (‘‘Merging data from multiple of such works in covered activities, as measured or Napster. sources on conflicts will require significant manual over the preceding 3 full calendar years.’’). 378 DLCI Proposal at Ex. C–13–14; DLCI Ex Parte processing and will be very resource-intensive.’’). 373 See NOI at 65753; DLCI Proposal at Ex. C; see Meeting Summary at 2. 386 DLCI Proposal at Ex. C–11; DLCI Ex Parte also 17 U.S.C. 115(d)(5)(C) (outlining authorities 379 DLCI Proposal at Ex. C–18. Meeting Summary at 1. and functions of DLC regarding these topics). 380 Id. at Ex. C–3. 387 DLCI Proposal at Ex. C–12.

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non-DLCI director, officer, or employee, continued refinement. Overall, the that it is time to roll up sleeves, it plans on ‘‘establishing, through Office concludes that DLCI satisfies the sustained dedication to these worthy agreement, appropriate limitations on third statutory criterion for designation goals will be critical as the MLC and the information that may be shared as the DLC and has demonstrated a DLC turn to the many tasks involved in between [the MLC and DLC], as well as commitment to building out its preparation for the license availability procedures for shielding information operations and execution of its statutory date. concerning individual licensee service functions. The Copyright Office looks forward to members of the DLC from other licensee working with the MLC, DLC, and other C. Conclusion service members.’’ 388 If necessary, DLCI interested parties on next steps in MMA states that it could address any For the reasons set forth above, the implementation. As noted, the MLC and confidentiality or administration issues Register is selecting and designating DLC, along with the Copyright Office, with the MLC’s vendors in specific MLCI and DLCI, and their individual are asked to facilitate education and agreements.389 The Copyright Office is board members, which Librarian outreach regarding the new blanket hopeful that relevant parties will agree approves. MLCI has demonstrated it licensing system to the broader on appropriate procedures to protect meets each of the statutory criteria; songwriting community. In the coming confidential, proprietary, or otherwise indeed, it is the only candidate that months, the Office will initiate sensitive information, and notes that the satisfies the requirement of being additional regulatory activities required Register has ultimate responsibility to endorsed by, and enjoying substantial under the statute and begin planning its proscribe regulations related to the support from, musical work copyright public policy study regarding best protection of confidential information owners that represent the greatest practices, which the MLC may by the MLC, DLC, and their employees, percentage of the licensor market for implement to identify musical work committees, or board members.390 covered activities in the past three copyright owners with unclaimed Education and Outreach. DLCI years. Further, by articulating a more accrued royalties and reduce the expects to ‘‘develop standardized text thoughtful, methodical, and incidence of unclaimed royalties. Future identifying and providing contact comprehensive approach towards information regarding those activities information for the MLC, and executing the many important will be made available at: https:// instructions for how a songwriter or administrative and technological duties www.copyright.gov/music- other copyright owner of musical of the collective, MLCI has also modernization/. compositions can claim accrued demonstrated that it is better positioned Finally, the Copyright Office finds royalties by providing the necessary to perform the required functions. The that there is good cause to make the information to the MLC’’ for digital Register has reviewed and determined codification of this designation effective on publication. Timely designation of licensees to post on their services.391 that each of MLCI’s individual board the MLC and DLC are vital to the DLCI generally expressed intentions to members are well-qualified to serve on success of Congress’s reform of the engage in educational efforts and plans the board in accordance with the section 115 statutory license. Indeed, by to coordinate outreach efforts with the statutory criteria. Similarly, DLCI has the statutory language, the designation MLC to inform songwriters and demonstrated that it fulfills each of the would be timely based solely upon the publishers of the MLC and how to claim statutory criteria for designation, and date of publication in the Federal royalties, including by ‘‘develop[ing] a that its individual board members are Register, but reflecting the designation protocol to guide its members’ well-qualified to serve on its board in Copyright Office regulations will be individual outreach’’ and pursuant to the statute. helpful to the public.395 The statutory ‘‘participat[ing] in songwriter and Importantly, both the MLCI and the DLCI submissions acknowledge that designation deadline is the same publisher industry events, including deadline for the CRJs to commence a those organized by the MLC.’’ 392 DLCI their intended roles carry the responsibility to broadly represent the has also committed to participating in reforms issued by key music industry leaders earlier outreach events with the Copyright interests of musical work copyright this month. Many of these measures, such as the Office.393 owners and songwriters, or digital CLASSICS Act and the Music Modernization Act, The Office finds that DLCI has music providers, respectively, with are supported by stakeholders on both sides, by respect to the section 115 mechanical digital service providers as well as by music addressed the main issues regarding its creators. This emerging consensus gives us hope administrative capabilities. DLCI license. In particular, the Office that this committee can start to move beyond the proposed a thorough and thoughtful appreciates AMLC’s proposal. The review stage toward legislative action.’’); 164 Cong. governance structure, criteria for Office hopes that MLCI will consider Rec. H3522, 3537 (daily ed. Apr. 25, 2018) (statement of Rep. Collins) (‘‘[This bill] comes to the membership, and dues structure, and whether any aspects of the AMLC’s floor with an industry that many times couldn’t appears well-positioned to participate in proposal should be incorporated into its even decide that they wanted to talk to each other an administrative assessment future planning. about things in their industry, but who came proceeding if necessary. Other DLCI As the legislative history amply together with overwhelming support and said this is where we need to be.’’); 164 Cong. Rec. S501, 502 functions, such as educational and documents, this historic music (daily ed. Jan. 24, 2018) (statement of Sen. Hatch) outreach efforts, plans to enforce notice copyright legislation was enacted only (‘‘I don’t think I have ever seen a music bill that and payment obligations, and ensuring in the wake of significant consensus- has had such broad support across the industry. All that DLCI has the broadest possible building and cooperation across a wide sides have a stake in this, and they have come 394 together in support of a commonsense, consensus support of the licensee market, appear berth of industry stakeholders. Now bill that addresses challenges throughout the music more inchoate and may benefit from industry.’’); 164 Cong. Rec. H3522, 3536 (daily ed. 394 See, e.g., Music Policy Issues: A Perspective Apr. 25, 2018) (statement of Rep. Goodlatte) (‘‘I 388 NOI at 65753; DLCI Proposal at 8; see also id. from Those Who Make It: Hearing on H.R. 4706, tasked the industry to come together with a unified at Ex. C–9. H.R. 3301, H.R. 831 and H.R. 1836 Before H. Comm. reform bill and, to their credit, they delivered, albeit On the Judiciary, 115th Cong. 4 (2018) (statement with an occasional bump along the way.’’); 164 389 DLCI Proposal at 10. of Rep. Nadler) (‘‘For the last few years, I have been Cong. Rec. S6259, 6260 (daily ed. Sept. 18, 2018) 390 17 U.S.C. 115(d)(12)(C). imploring the music community to come together (statement of Sen. Alexander on behalf of Sen. 391 DLCI Proposal at Ex. C–8. in support of a common policy agenda, so it was Grassley) (‘‘This bill is the product of long and hard 392 Id. music to my ears to see—to hear, I suppose—the negotiations and compromise.’’). 393 DLCI Ex Parte Meeting Summary at 2. unified statement of support for a package of 395 17 U.S.C. 115(d)(3)(B)(i), (d)(5)(B)(i).

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proceeding to establish the initial § § 210.2–210.10 [Reserved] while recommending certain administrative assessment, which adjustments, many of which the Judges Dated: July 1, 2019. anticipates MLC and DLC accept as improvements to the rules as participation.396 Further, given the Karyn A. Temple, originally proposed. The Judges hereby license availability date of January 1, Register of Copyrights and Director of the adopt the proposed rules as amended. 2021, the MLC has a tight deadline to U.S. Copyright Office. become fully operational, and both the Approved by: Background Carla D. Hayden, MLC and DLC have important roles in The MMA amended title 17 of the educating the public on the royalty Librarian of Congress. United States Code (Copyright Act) to claiming process, which may be [FR Doc. 2019–14376 Filed 7–5–19; 8:45 am] authorize, among other things, unnecessarily encumbered if BILLING CODE 1410–30–P designation by the Register of designation were delayed.397 The public Copyrights (with the approval of the had ample opportunity to comment on Librarian of Congress) of a Mechanical the proposals for parties to be named LIBRARY OF CONGRESS Licensing Collective (MLC). 17 U.S.C. the MLC and DLC and did, in fact, file 115(d)(3)(A)(iv) and 17 U.S.C. over six hundred comments in response Copyright Royalty Board 115(d)(3)(B)(i). The MLC is to be a to the different proposals. 37 CFR Parts 303, 350, 355, 370, 380, nonprofit entity created by copyright List of Subjects in 37 CFR Part 210 382, 383, 384, and 385 owners to carry out responsibilities set Copyright, Phonorecords. forth in sec. 115 of the Copyright Act. [Docket No. 18–CRB–0012 RM] 17 U.S.C. 115(d)(3)(A)(i). The Copyright Final Regulations Act sets forth the governance of the Copyright Royalty Board Regulations For the reasons set forth in the MLC, which shall include Regarding Procedures for preamble, the Copyright Office amends representatives of songwriters and Determination and Allocation of 37 CFR part 210 as follows: music publishers (with nonvoting Assessment To Fund Mechanical members representing licensees of PART 210—COMPULSORY LICENSE Licensing Collective and Other musical works and trade associations). FOR MAKING AND DISTRIBUTING Amendments Required by the Hatch- 17 U.S.C. 115(d)(3)(D). The MLC is PHYSICAL AND DIGITAL Goodlatte Music Modernization Act authorized expressly to carry out several PHONORECORDS OF NONDRAMATIC AGENCY: Copyright Royalty Board, functions under the Copyright Act, MUSICAL WORKS Library of Congress. including offering and administering blanket licenses and collecting and ■ 1. The authority citation for part 210 ACTION: Final rule. distributing royalties. 17 U.S.C. continues to read as follows: SUMMARY: The Copyright Royalty Judges 115(d)(3)(C)(i) and (iii). Authority: 17 U.S.C. 115, 702. (Judges) adopt regulations governing Section 115(d)(5)(A) of the MMA ■ 2. Add subpart A, consisting of proceedings to determine the defines a second entity, the Digital §§ 210.1 through 210.10, to read as reasonableness of, and allocate Licensee Coordinator (‘‘DLC’’), a single follows: responsibility to fund, the operating nonprofit entity not owned by any other budget of the Mechanical Licensing entity, created to carry out Subpart A—Blanket Compulsory Collective authorized by the Music responsibilities under the MMA. The License, Mechanical Licensing Modernization Act (MMA). The Judges DLC must be endorsed by and enjoy Collective, and Digital Licensee also adopt proposed amendments to substantial support from digital music Coordinator extant rules as required by the MMA. providers and significant nonblanket DATES: Sec. Effective July 8, 2019. licensees that together represent the 210.1 Designation of the Mechanical FOR FURTHER INFORMATION CONTACT: greatest percentage of the licensee Licensing Collective and Digital Licensee Anita Blaine, CRB Program Specialist, market for uses of musical works in Coordinator. by telephone at (202) 707–7658 or email covered activities, as measured over the 210.2–210.10 [Reserved] at [email protected]. preceding three calendar years. 17 § 210.1 Designation of the Mechanical SUPPLEMENTARY INFORMATION: On March U.S.C. 115(d)(5)(A). The DLC will be Licensing Collective and Digital Licensee 13, 2019, the Copyright Royalty Judges designated by the Register, with the Coordinator. (Judges) published proposed regulations approval of the Librarian, and is The following entities are designated governing proceedings to determine the authorized to perform certain functions pursuant to 17 U.S.C. 115(d)(3)(B) and reasonableness of, and allocate under the Copyright Act, including (d)(5)(B). Additional information responsibility to fund, the operating establishing a governance structure, regarding these entities will be made budget of the Mechanical Licensing criteria for membership, and dues to be available on the Copyright Office’s Collective authorized by the Music paid by its members.2 The DLC is also website. Modernization Act (MMA). The Judges authorized to engage in efforts to (a) Mechanical Licensing Collective, also proposed amendments to extant enforce notice and payment obligations Inc., incorporated in Delaware on March rules as required by the MMA. 84 FR with respect to the administrative 5, 2019, is designated as the Mechanical 9053. The Judges received comments assessment, including by receiving Licensing Collective; and from the Digital Music Association information from and coordinating with (b) Digital Licensee Coordinator, Inc., (DiMA), The National Music Publishers the MLC. The DLC is also authorized to incorporated in Delaware on March 20, Association (NMPA), and initiate and participate in proceedings 2019, is designated as the Digital SoundExchange, Inc.1 The commenters before the Judges to establish the Licensee Coordinator. generally support the Judges’ proposal 2 The Register may decline to designate a DLC if 396 Id. at 115(d)(3)(B)(i), (d)(5)(B)(i), 1 The proposal was further to a Notice of Inquiry she is unable to identify an entity that fulfills the (d)(7)(D)(iii)(I). that the Judges published on November 5, 2018. 83 qualifications for the DLC set forth in the MMA. 17 397 See id. at 115(d)(3)(J)(iii), (d)(5)(C)(iii). FR 55334. U.S.C. 115(d)(5)(B)(iii).

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administrative assessment. 17 U.S.C. in response to their Notice of Inquiry that the proposed rules would constrain 115(d)(5)(B)–(C). (NOI). Some comments, however, raised the DLC in its efforts to take The MMA provides that the Judges issues with particular aspects of the depositions, requiring that it negotiate must, within 270 days of the effective proposal, which the Judges address and compromise on the deposition date of the MMA, commence a below. The comments of DiMA and process with other participants, making proceeding to determine an initial NMPA overlapped on many issues. the development of a coherent and administrative assessment that digital Therefore, the Judges discuss the efficient strategy for this process music providers and any significant respective comments of these two incredibly difficult. nonblanket licensees shall pay to fund commenters in a single section. DiMA asserts that under the proposed the operations of the MLC. 17 U.S.C. SoundExchange’s comments are rules, any proceeding participant other 115(d)(7)(D)(iii)(I).3 The Judges may also addressed in a separate section. than the MLC could essentially ‘‘hijack’’ conduct periodic proceedings to adjust the first discovery period deposition the administrative assessment. 17 U.S.C. 1. DiMA and NMPA Comments process by noticing all five depositions 115(d)(7)(D)(iv). In the proceedings to According to DiMA, Congressional on the very first day of that discovery determine the initial and adjusted intent in adopting the MMA is that the period, thereby blocking the DLC’s administrative assessments, the Judges MLC and the DLC are to be created, ability to take depositions of potentially must determine an assessment ‘‘in an designated, and approved to serve as far more relevant individuals. DiMA amount that is calculated to defray the proxies for the interests of their believes that the perceived open-ended reasonable collective total costs.’’ 17 respective constituencies, with the MLC nature of the deposition process in the U.S.C. 115(d)(7)(D)(ii)(II). serving as the voice of musical work proposed rules would create disputes Creation of the MLC and the other copyright owners/licensors and the DLC that the CRJs would be required to statutory changes in the MMA require or serving as the voice of digital music resolve over areas such as the authorize modification of the Judges’ licensees. DiMA Comment at 3. DiMA individuals who would be deposed, the regulations relating to sec. 115. For believes, however, that as currently time allocations for examination of example, sec. 102(d) of the MMA drafted, certain of the proposed rules those witnesses, and the timing of the requires the Judges, not later than 270 put the DLC in an inferior position as depositions, resulting in significant days after enactment of the MMA, to compared to the MLC, creating inefficiencies within the discovery amend 37 CFR part 385, ‘‘to conform the inequities that ultimately may timeline. DiMA Comment at 5. definitions used in such part to the undermine the perceived goal of the DiMA believes that the DLC should be definitions of the same terms described assessment proceedings to establish the provided with access to the deposition in sec. 115(e) of title 17, United States amount and terms of the administrative process equal to that of the MLC, and Code, as added by’’ sec. 102(a) of the assessment based on a comprehensive, the proposed rules should be amended MMA. That provision also directs the transparent record or to allow for the to permit the DLC to take up to five Judges to ‘‘make adjustments to the negotiation of a voluntary agreement depositions under the same conditions language of the regulations as necessary among the MLC and DLC, which DiMA as those provided to the MLC. to achieve the same purpose and effect asserts, represent the vast majority of DiMA acknowledges the need to as the original regulations with respect their respective stakeholders. Id. at 4. ensure that the discovery process is also to the rates and terms previously DiMA points out perceived disparities fair to other proceeding participants. To adopted by the [Judges].’’ between the MLC and the DLC in three that end, DiMA recommends that the In that regard, the MMA also adds a areas, discussed below. proposed rules be modified to mandate new sec. 801(b)(8) to the Copyright Act, a duty requiring these other parties to which authorizes the Judges ‘‘to (a) DiMA Believes the MLC and the DLC cooperate with DiMA and each other in determine the administrative Should Be Provided With Equal good faith in discovery and to attempt assessment to be paid by digital music Opportunities To Take Depositions to resolve disputes amongst themselves providers under section 115(d)’’ and DiMA notes that proposed § 355.3(e) before availing themselves of the states that ‘‘[t]he provisions of section would authorize the MLC to notice and discovery disputes process outlined in 115(d) shall apply to the conduct of take up to five depositions during its proposed § 355.3(h). DiMA also suggests proceedings by the [Judges] under discovery period and would authorize that the Judges modify the proposed section 115(d) and not the procedures in the DLC, together with ‘‘interested rules to make clear that proceeding this section, or section 803, 804, or copyright owners, interested Digital participants whose interests may not be 805.’’ 17 U.S.C. 801(b)(8). To discharge Music Providers, and interested fully represented by either the MLC or this duty, the MMA authorizes the Significant Nonblanket Licensees,’’ to the DLC are permitted to take advantage Judges to adopt regulations concerning notice and take up to five depositions of the discovery disputes process set proceedings to set the administrative ‘‘collectively’’ during their discovery forth in proposed § 355.3(h), to request assessment established by the statute to period. authorization from the CRJs to take any fund the MLC. 17 U.S.C. According to DiMA, the proposed depositions they deem necessary and, 115(d)(7)(D)(viii) and 115(d)(12)(A). rules thus permit the MLC to review upon a showing of good cause, be whatever discovery it deems relevant, A. Discussion of Comments permitted to take those depositions. determine the five individuals it DiMA Comment at 6. As noted above, the three sets of believes would be most advantageous to DiMA believes that the deposition comments the Judges received were depose and the order in which it wishes process outlined above would place the generally supportive of the Judges’ to depose these individuals, and set the DLC on equal footing with the MLC, proposal, much of which responded to timing of those depositions within the while at the same time providing comments that the Judges had received discovery period, unencumbered by the meaningful opportunities to other other parties. DiMA Comment at 4. proceeding participants to partake in the 3 The assessment may also be paid through In contrast, DiMA notes, the DLC deposition process as well. Id. voluntary contributions from digital music providers and significant nonblanket licensees as would be required to share its five The Judges believe that DiMA’s may be agreed with copyright owners. 17 U.S.C. depositions with the other proceeding proposed modifications to § 355.3(e) 115(d)(7)(A)(ii). participants. As a result, DiMA believes and (h) are reasonable and appropriate

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and therefore adopt DiMA’s that there are no statutorily authorized participants. The second sentence then recommended modifications.4 ‘‘other participant[s] in the proceeding’’ authorizes the noticing and taking of other than the DLC, interested copyright depositions by the MLC but (b) DiMA Believes That the First and owners, interested Digital Music inadvertently states that these Second Discovery Periods Should Be Providers, and interested Significant depositions are to be taken during the Substantively Identical Nonblanket Licensees, all of which are ‘‘first’’ rather than the ‘‘second’’ In the Joint Proposal that DiMA and already enumerated within the same discovery period. Yet § 355.2(g)(1)(v) the NMPA submitted in response to the sentence, making this language discusses the second discovery period Judges’ Notice of Inquiry, NMPA/DiMA redundant at best and potentially in the proceeding, which provides for recommended that administrative opening the door to discovery by the the MLC ‘‘to serve discovery requests assessment proceedings have two MLC during the first discovery period at and complete discovery of the [DLC] discovery periods. According to DiMA, worst, which, DiMA contends, is and any other participant in the the first discovery period would be directly contrary to the language of proceeding pursuant to § 355.3(g).’’ reserved for the DLC and other proposed § 355.2(g)(1)(iii). DiMA Section 355.3(g), in turn, is titled participants in the proceeding, other Comment at 8. DiMA therefore ‘‘Second discovery period.’’ According than the MLC, to allow those parties to recommends that the Judges clarify to DiMA, the general framework of examine the MLC’s submission and § 355.3(d) to remove the ‘‘interested discovery and other sections of the probe its constituent parts in copyright owners, interested Digital proposed rules confirm that the second preparation for the DLC’s and other Music Providers, and interested sentence of this subsection should participants’ responsive submissions. Significant Nonblanket Licensees’’ instead read (proposed amendment in The second discovery period would be language and instead conform this italics): ‘‘The [MLC] may give notice of reserved for the MLC to allow it to language with the language from and take up to five depositions during examine the responsive submissions § 355.2(g)(1)(iii) (i.e., ‘‘the Digital the second discovery period.’’ DiMA and to probe their constituent parts in Licensee Coordinator and any other Comment at 9. preparation for the MLC’s reply participant in the proceeding, other than DiMA notes that the Judges requested submission, which, under the Joint the Mechanical Licensing Collective’’) specific comments with regard to reply Proposal, the MLC would have the to resolve this internal inconsistency submissions of the MLC, voicing the option to file after the second discovery and potential ambiguity. For the same concern that the proposed rules as period. DiMA Comment at 7. reasons, DiMA also suggests that currently written ‘‘would authorize the DiMA contends that the proposed identical language in § 355.3(f)(1) MLC to respond to submissions of the rules contain several ambiguities and likewise be modified accordingly. DiMA DLC and other opposing parties but the inconsistencies that require clarification Comment at 8. The Judges believe proposal would not authorize the MLC to ensure that discovery during DiMA’s proposed modifications are to seek discovery from those parties to administrative assessment proceedings reasonable and appropriate and support its submission.’’ DiMA is efficient, logical, and equitable. Id. therefore adopt them. Comment at 9, quoting 84 FR at 9057. For example, DiMA notes that DiMA further notes that as presently DiMA posits that this reading of the § 355.2(g)(1)(iii) of the proposed rules drafted, proposed §§ 355.2(g)(1)(iii) and proposed rules was perhaps the result of reserves the first discovery period ‘‘for 355.3(d) fail to set forth the right of the the inconsistencies discussed above the [DLC] and any other participant in DLC and other proceeding participants that, when resolved, make clear that the the proceeding, other than the [MLC], to to take depositions during the first second discovery period, the discovery serve discovery requests and complete discovery period, which, DiMA period specifically set aside for the MLC discovery pursuant to § 355.3(d).’’ DiMA contends, appears to be an inadvertent in both the proposed rules and in the further notes that § 355.3(d) states that oversight, since those depositions are Joint Proposal, occurs after the DLC and ‘‘the [DLC], interested copyright owners, clearly contemplated by, and discussed other participants provide their interested Digital Music Providers, and in, § 355.3(e). DiMA recommends that responsive submissions and concurrent interested Significant Nonblanket § 355.3(d) be amended to add a document productions and written Licensees ... and any other participant subsection (2) that substantively mirrors disclosures. According to DiMA, the in the proceeding may serve requests for § 355.3(g)(2) (but with the reference to proposed rules already authorize the additional documents’’ (emphasis added ‘‘note’’ corrected to ‘‘notice’’), which MLC to conduct discovery subsequent by DiMA). addresses the MLC’s ability to take to the filing of responsive submissions According to DiMA, the italicized depositions during the second discovery by the DLC and other participants and language in § 355.3(d) is problematic in period (i.e., ‘‘The [DLC] (or if no [DLC] prior to the filing of any reply has been designated, interested Digital submission by the MLC. DiMA 4 DiMA recommended that the Judges insert a Music Providers and Significant Comment at 9. lengthy phrase throughout proposed § 355 each For its part, NMPA ‘‘observes that the time the term Digital Licensee Coordinator appears Nonblanket Licensees representing more to account for the possibility that the Register does than half of the market for uses of Proposed Rule could be read as unfairly not designate a DLC (i.e., or if no Digital Licensee musical works in Covered Activities, limiting the scope of discovery in the Coordinator has been designated, interested Digital acting collectively) and any other second discovery period for the MLC as Music Providers and Significant Nonblanket compared to the scope of discovery in Licensees representing more than half of the market participant in the proceeding, other than for uses of musical works in Covered Activities, the [MLC], may notice and take the first period applicable to the DLC acting collectively). As a more efficient alternative, depositions as provided in paragraph (e) and additional parties.’’ NMPA the Judges define the term Digital Licensee of this section.’’). DiMA Comment at 8. Comment at 8. NMPA notes that Coordinator to include either the entity that the proposed § 355.3(d) states that in the Register designates or, if the Register does not DiMA also asserts that § 355.3(e) designate a DLC, interested Digital Music Providers requires the correction of what appears first discovery period, ‘‘[a]ny document and Significant Nonblanket Licensees representing to be a typographical error. According to request shall be limited to documents more than half of the market for uses of musical DiMA, the first sentence of that section that are Discoverable’’ whereas works in Covered Activities, acting collectively. As a corresponding change to the new definition of authorizes the noticing and taking of proposed § 355.3(g)(1) states, with DLC, the Judges also removed paragraph (d) of depositions during the first discovery respect to the second discovery period, section 355.1. period by the DLC and other proceeding ‘‘requests shall be limited to documents

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that are Discoverable and relevant to they ‘‘are loathe to encourage the MLC only the MLC and DLC must agree to a consideration of whether any and the DLC, or other significant voluntary settlement. Nevertheless, the counterproposal fulfills the participants, to engage in negotiations Judges believe that the views of other requirements of 17 U.S.C. 115(d)(7) or for up to a month (or up to half the participants may be helpful, and one or more of the elements of this suggested negotiating period) before the perhaps essential, for the Judges to part.’’ NMPA Comment at 8.5 NMPA [Judges] identify and give notice of the determine whether good cause exists to also requests that the Judges change full roster of participants.’’ DiMA exercise their discretion to reject a paragraph (2) in the definition of Comment at 10, quoting the Judges’ Rule settlement. The Judges, therefore, have Discoverable in proposed § 355.7 to read Proposal, 84 FR at 9057. modified section 355.4 to clarify that ‘‘(2) Relevant to consideration of DiMA notes that § 355.6(d) of the participants other than the MLC and whether a proposal or response thereto proposed rules likewise references DLC may participate in settlement fulfills the requirements in 17 U.S.C. voluntary agreements ‘‘negotiated and negotiations and may comment on any 115(d)(7).’’ According to NMPA, these agreed to by the [MLC] and the [DLC], resulting settlement. In keeping with the requested changes should eliminate interested copyright owners, interested accelerated timeline for administrative confusion concerning the MLC’s ability Digital Music Providers, and interested assessment proceedings, the Judges have to take discovery of the DLC and other Significant Nonblanket Licensees’’ imposed tight space limitations for parties regarding their respective (emphasis added by DiMA). comments, and abbreviated deadlines responses to the MLC’s proposal. NMPA DiMA contends, however, that the for comments and any reply by the Comment at 9. MMA does not require or encourage settling parties. These limitations are The Judges find that DiMA’s and such broad participation. According to subject to the general rules governing NMPA’s respective recommended DiMA, under the MMA only the MLC requests for enlargement in sections modifications to the proposed rules in and the DLC must agree to any 303.3(c) and 303.7(b). The Judges have this area are reasonable and appropriate negotiated voluntary agreement. DiMA made a conforming change to section and therefore adopt them. consequently requests that the Judges 303.3(c) to ensure that the rule (c) DiMA Believes That Any Voluntary modify the proposed rules to remove governing requests for enlargement of Agreement Must Be Agreed Upon Only ‘‘interested copyright owners, interested space applies to space limitations set in by the MLC and the DLC Without Digital Music Providers, and interested section 355.4 and other provisions of Mandatory Participation or Approval of Significant Nonblanket Licensees’’ from subchapter B. proposed §§ 355.4 and 355.6(d).6 DiMA Other Participants (d) Issues Relating to Fact Finding in also requests that the Judges modify the DiMA avers that §§ 355.4 and 355.6(d) Administrative Assessment Proceedings of the proposed rules may not be proposed rules such that the first consistent with the MMA because they negotiation period will begin on the DiMA’s set of comments also include participants other than the MLC date of commencement of the addressed six areas regarding the fact and the DLC in the negotiation periods proceeding to determine or adjust the finding process: (1) Flexibility in administrative assessment. DiMA scheduling of the proceedings and and in any voluntary agreement that 7 ultimately may result from those Comment at 12. related timing; (2) concurrent expert negotiations. According to DiMA, The Judges believe that involvement testimony; (3) necessity of hearings; (4) inclusion of such other participants is in the settlement discussions between admissibility of deposition transcripts; not mandated by the MMA and should the MLC and DLC by other participants (5) witness attendance at the hearing be obviated by the MLC’s and the DLC’s is appropriate and permitted—though and review of transcripts; and (6) scope roles as statutorily-designated not mandated—under the statute. At the of mandatory document productions. representatives of their respective same time, the Judges agree with NMPA’s comment also addressed some stakeholders. DiMA Comment at 10. DiMA’s interpretation of the statute that of these areas. The Judges address each DiMA notes that § 355.4 of the area is turn. proposed rules requires the 6 DiMA contends that the MMA clearly contemplates the possibility of a negotiated, Flexibility in Proceeding Scheduling participation of not only ‘‘[t]he [MLC] voluntary agreement between the MLC and the DLC and Related Timing [and] the [DLC],’’ but also the (only), to which the entire industry would be participation of ‘‘interested copyright bound, because, according to DiMA, the MLC and DiMA agrees that the Judges’ owners, interested Digital Music the DLC are statutorily-designated entities that by scheduling proposal, which DiMA their nature represent the broad majority of their Providers, and interested Significant respective constituencies. DiMA avers that this views as more flexible than that DiMA Nonblanket Licensees’’ (emphasis added aspect of the MMA contrasts with regulations and the NMPA proposed in their Joint by DiMA) in both negotiation periods governing settlements in royalty rate proceedings Comment on the NOI, will allow the within an administrative assessment which, DiMA notes, explicitly state that a Judges to adopt a tailored schedule for settlement can be reached by ‘‘some or all of the proceeding, and sets the commencement parties,’’ and that participants who are not parties each proceeding based on the of the first negotiation period for ‘‘the to the agreement can file objections to the adoption circumstances of that proceeding and day after the [Judges] give notice of all of any such agreement. DiMA Comment at n. 3, still retain the structural framework of participants in the proceeding.’’ DiMA citing 37 CFR 351.2(b)(2). the proceeding. DiMA Comment at 12. notes that in explaining this provision 7 DiMA notes that the Joint Proposal included the following MMA language to account for the Likewise, NMPA states that it and its timing, the Judges stated that possibility that a DLC may not be designated: ‘‘(or understands the Judges’ desire for if none has been designated, interested digital flexibility and agrees that a less 5 As discussed further below, NMPA does not music providers and significant nonblanket structured schedule can still allow the believe that independent counterproposals are licensees representing more than half of the market Judges to conduct proceedings in a appropriate in the context of assessment for uses of musical works in covered activities).’’ proceedings. NMPA Comment at 8. As a result, DiMA recommends that this language be included timely and efficient manner. NMPA NMPA requests that the Judges remove from throughout the proposed rules, as appropriate. believes that the Judges can establish proposed § 355.3(g)(1) the language ‘‘and relevant to DiMA Comment at n.2. As discussed in note 4 the schedule in each particular consideration of whether any counterproposal above, as an alternative, the Judges have defined the fulfills the requirements of 17 U.S.C. 115(d)(7) or term Digital Licensee Coordinator to include the proceeding with an eye toward one or more of the elements of this part.’’ NMPA group of parties that DiMA suggests if the Register commencing and completing the Comment at 8–9. does not designate a DLC. proceeding in accordance with the

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overall timetable set forth in the MMA. concurrent testimony approach could expert testimony will remain the default NMPA Comment at 3. allow the Judges more latitude to process and structure in administrative DiMA requests, however, that the address any concerns they may have assessment proceedings, i.e., absent any Judges allot sufficient time after the with regard to the proposals then at ruling by the Judges establishing a close of the first and second discovery issue. According to DiMA, engaging in concurrent form of receiving expert periods for the parties to incorporate concurrent expert testimony may lead to testimony. relevant facts obtained through efficiencies by allowing the experts to Necessity of Hearings discovery into those submissions and to focus on the heart of the issues that resolve discovery disputes that may remain in dispute, to explain their DiMA notes that current proposed arise. Id. at 13. DiMA also requests that differing viewpoints on those issues, § 355.5(a) allows the Judges to issue a the Judges consider incorporating a and to have the ability to examine those determination for the administrative period of 3–5 days between the due date viewpoints in real time by the experts assessment without a hearing. DiMA for opening and responsive submissions themselves, the Judges, and counsel. Comment at 15. DiMA believes that this and the start of the first and second Additionally, DiMA avers that option is inconsistent with the MMA. In discovery periods to provide proceeding concurrent expert testimony may be particular, DiMA references sec. participants a few days to review the particularly useful where, as here, the 115(d)(7)(D)(iii)(III), which, DiMA submissions and document productions proceeding will be very subject-matter contends, mandates a hearing. DiMA and disclosures before commencing specific and the issues addressed at the Comment at 15. As a result, DiMA discovery activities. Id. hearing will be fairly complex, contends that the proposed rules should DiMA also notes that the Judges technical, and nuanced. To the extent be modified to clarify that a hearing is propose 60 days for the first discovery the Judges or the parties elect to use the a required phase of the administrative rather than the 75 days that the DiMA/ concurrent evidence approach in a assessment proceeding unless a NMPA Joint Comment had proposed. particular proceeding, DiMA voluntary agreement is reached between See proposed § 355.2(g)(1)(iii). The recommends that the Judges consider the MLC and the DLC. In addition to second discovery period would also be how best to direct and focus such what DiMA believes is a statutory 60 days. DiMA asserts that there is testimony to ensure that the process is mandate, DiMA also believes that a justification for a longer first discovery efficient and orderly at the hearing. hearing would afford the Judges the period because the DLC will have to DiMA also supports inclusion of opportunity to examine whatever coordinate and negotiate with other concurrent expert testimony as an portions of the proposed assessment parties involved in the first discovery option for testimony at the hearing they found to be deficient or otherwise period, whereas the MLC will be the either in addition to or in lieu of inconsistent with the MMA and to make lone party directing the second ‘‘traditional’’ expert testimony, as the a determination consistent with 17 discovery period and will not be circumstances may dictate, while at the U.S.C. 115(d)(7). DiMA Comment at 16. hindered by competing interests same time making clear that, in the As a practical matter, the Judges agree regarding noticing and taking absence of a specific ruling to the that, absent a settlement, a hearing will depositions and deciding the number contrary, ‘‘traditional’’ (i.e. non- be beneficial for developing a record as and extent of document requests. DiMA concurrent) expert testimony will a foundation for an Administrative Comment at 13–14. DiMA contends that remain the default process and structure Assessment determination. Therefore, a longer discovery period is necessary in administrative assessment the Judges accept DiMA’s and requests that the Judges reconsider proceedings. DiMA Comment at 13–14. recommendation to amend proposed a 75-day period for the first discovery NMPA believes a concurrent evidence § 355.5(a) to remove references to the period. approach could help to narrow and Judges’ consideration of filings After careful consideration, the Judges clarify issues and permit immediate submitted for a determination without a decline to adopt DiMA’s requests to correction of testimony by one expert hearing. lengthen the first discovery period and when another expert identifies mistakes Admissibility of Deposition Transcripts delay the commencement of the in the first expert’s testimony. discovery periods. The timing Accordingly, NMPA does not object to As DiMA notes, the Judges’ proposed provisions in the MMA for determining the inclusion of language within rules allow the introduction of the Administrative Assessment are proposed rule § 355.5(d) to permit a deposition transcripts pursuant to the particularly compressed. The Judges concurrent evidence procedure. rules and limitations of Federal Rule of believe that 60 days is a reasonable In light of uncertainties concerning Civil Procedure 32. 84 FR at 9058; amount of time for discovery and that a the equities in particular proceedings, proposed § 355.5(c). DiMA agrees with longer period would only serve to however, should the Judges adopt this the Judges’ position on this issue restrict further an already short time approach, NMPA believes it would be because, according to DiMA, submission frame for determining an Administrative helpful if, in any given proceeding, the of only the deposition testimony that is Assessment. Judges would solicit the views of the permitted under FRCP 32 will ensure parties before requiring participation in that the Judges receive these materials Concurrent Expert Testimony a concurrent evidence procedure. in a way that does not require them to DiMA and NMPA each responded to NMPA Comment at 12–13. wade through many exploratory lines of the Judges’ proposal regarding The Judges adopt the concurrent questioning in discovery depositions concurrent expert testimony. DiMA evidence provision as proposed, but, and does not duplicate the live supports the Judges’ inclusion of the consistent with NMPA’s testimony of any hearing witnesses. concurrent testimony option and recommendation, will consider the DiMA Comment at 16. NMPA noted that believes that this approach could assist views of any party regarding the ‘‘the Joint Comments proposed that the Judges in creating a more implementation of a concurrent complete transcripts be admitted so comprehensive record upon which they evidence approach in any particular relevant portions would be available as can base their determination and in Administrative Assessment proceeding. needed during the hearing without answering questions the Judges may The Judges also confirm, consistent with undue burden or delay. At the same have. DiMA also believes that a DiMA’s comment, that ‘‘traditional’’ time, NMPA understands the concerns

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articulated by the [Judges]. What is information and will thus more likely NMPA Comment at 11. NMPA believes critical is that pertinent deposition result in an administrative assessment that this proposed language could be testimony be available for use by the that will not require as much interpreted as suggesting that the Judges parties as necessary during a hearing.’’ adjustment in future years.’’ Id. The ‘‘are somehow responsible for policing NMPA Comment at 13. The Judges Judges accept DiMA’s request as the policies and practices of the MLC acknowledge NMPA’s desire to have appropriate and reasonable and adopt with respect to conflicts of interest.’’ Id. pertinent deposition testimony available the modification as suggested. NMPA believes that the policies and during a hearing and believe that the DiMA also notes that the Judges have practices of the MLC are adequately current proposal will permit such included in §§ 355.3(b)(2)(iii) and addressed in the MMA (e.g., access. As a practical matter, the Judges 355.3(c)(2)(v) a new, specific category of requirements of an annual report note that during an Administrative documents for mandatory production by detailing the MLC’s operations and Assessment proceeding parties may the MLC (i.e., processes for requesting expenditures and periodic audits to submit deposition transcripts (and other proposals, inviting bids, ranking and guard against ‘‘fraud, abuse, waste, and exhibits) to the Judges. Once they are selecting the proposals and bids of the unreasonable use of funds’’). NMPA marked for identification, the entire potential contracting and sub- Comment at 11 and n.9. NMPA notes transcript or a subset of it thereafter may contracting parties competitively (or by that the MMA does not confer authority be offered for admission into evidence another method), including processes or responsibility to the Judges to enforce during the hearing. Such submission is for ensuring the absence of overlapping these provisions. NMPA contends that consistent with the current proposal. ownership or other overlapping the Judges’ authority under the MMA is Therefore, the Judges adopt the rules in economic interests between the MLC or limited to establishing the this area as proposed. its members and any selected Administrative Assessment for the MLC contracting or sub-contracting party). Id. in accordance with the criteria set forth Witness Attendance at the Hearing and at 18–19. DiMA supports this inclusion Review of Transcripts in 17 U.S.C. 115(d)(7). NMPA Comment ‘‘as these documents are directly at 11. As a result, NMPA requests that As DiMA notes, proposed § 355.5(d) relevant to the core question of the Judges eliminate the second clause generally prohibits a witness, other than ‘reasonable’ costs and are vital to a of proposed § 355.3(b)(2)(iii) and a party representative, from listening to determination that is fair, accurate, and (c)(2)(v). or reviewing a transcript of another consistent with 17 U.S.C. 115(d)(7).’’ Id. As a preliminary matter, the Judges witness prior to testifying. DiMA at 19. Comment at 17. DiMA does not object NMPA, on the contrary, believes that acknowledge NMPA’s concerns to this provision with respect to fact the proposed provision seems regarding the costs of gathering and witnesses but recommends a carve-out unnecessary and potentially onerous. providing information with respect to for expert witnesses ‘‘as the testimony of NMPA Comment at 10. NMPA believes the MLC’s operations, but the Judges expert witnesses is inherently different that the proposed provision, which was believe that the NMPA is reading the in nature and often benefits from not included in the Joint Comments of proposal’s requirement with respect to learning additional facts from which NMPA and DiMA, could be interpreted vendors too broadly. The Judges do not expert opinions can be formed or to require production of materials seek the type of granular information adjusted.’’ Id. DiMA believes such a concerning virtually every contract of that NMPA’s broad reading of proposed carve-out is particularly useful where the MLC no matter how small. Id. § 355.3(b)(2)(iii) and (c)(2)(v) implies. the Judges contemplate the possibility of NMPA also suggests that some of the Rather, the proposal should be read concurrent expert testimony. proposed language concerning more literally as requiring the MLC to The Judges believe that a carve-out for ‘‘overlapping economic interests’’ could produce information about the expert witnesses is reasonable and be read to suggest an expansion of the processes it employs in requesting appropriate and therefore adopt it. Judges’ role beyond what is proposals, inviting bids, ranking and contemplated under the MMA. NMPA selecting the proposals and bids of Scope of Mandatory Document requests that the Judges modify the potential contracting and sub- Productions proposed language (i.e., first clause of contracting parties competitively (or by DiMA notes that proposed § 355.3(b), proposed §§ 355.3(b)(2)(iii) and (c)(2)(v) another method), and the processes for which deals with the initial concerning the MLC’s choice of ensuring the absence of overlapping Administrative Assessment proceeding, vendors) at the very least to include a ownership or other overlapping is inconsistent with proposed § 355.3(c), materiality threshold of ten percent of economic interests between the MLC or which deals with proceedings to adjust the MLC’s annual budget. NMPA its members and any selected the Administrative Assessment, in that Comment at 10–11. As currently contracting or sub-contracting party. In the latter requires the MLC to produce proposed, NMPA fears that the other words, when the MLC is seeking a three-year projection of costs, provisions could be read as requiring to employ a vendor, will it submit collections, and contributions whereas that the MLC would need to produce requests for proposals and choose the the former does not. DiMA recommends every contract, proposal and bid—no lowest bid? Will the MLC create a list that the Judges modify the proposed matter how trivial or immaterial. NMPA of preferred vendors and employ one or rules to add the three-year projection Comment at 10. NMPA maintains that more of them on an as-needed basis? Or requirement, beginning as of the license such a requirement would be will the MLC use another process for availability date, to § 355.3(b) both for enormously burdensome and could conducting its operations? The Judges the sake of consistency between threaten timely completion of the believe that such information is well proceedings and to provide the Judges proceeding. NMPA Comment at 10–11. within the Judges’ authority to carry out with ‘‘robust, relevant information that NMPA is also concerned about the its obligations under the MMA to will be useful in making their ultimate second clause of proposed determine whether the MLC’s costs are determination.’’ DiMA Comment at 18. § 355.3(b)(2)(iii) and (c)(2)(v), which is reasonable. Additionally, even if such DiMA believes that ‘‘mandating addressed to ‘‘ensuring the absence of information will be contained in the projections for at least three years will overlapping ownership or other MLC’s annual report, that document provide more accurate long-term cost overlapping economic interests . . .’’. will not necessarily be completed and

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available for the Judges to consider. this recommendation is reasonable and required by 17 U.S.C. 115(d)(7) . . . Going forward, in future assessment appropriate and modify proposed including Collective Total Costs’’. DiMA adjustment proceedings, if the required § 355.2(g)(1) to enhance its clarity. Comment at 23 (emphasis added by information is fully set forth in the most DiMA also highlights three parallel DiMA). DiMA asserts that the addition recent annual report, the MLC could provisions in the proposed rules of the italicized phrase is inconsistent submit the relevant pages from that regarding the production of documents with an equivalent provision in document and confirm they remain by the MLC concurrent with its opening proposed § 355.3(b)(2)(i) and creates an applicable, in an attempt to satisfy this submission in the initial administrative ‘‘unnecessary ambiguity’’ because it required document production. assessment proceeding (proposed suggests that there may be other costs Accordingly, the Judges decline to adopt § 355.3(b)(2)), in proceedings to adjust that are relevant to the determination of NMPA’s proposed revisions. the assessment (proposed § 355.3(c)(2)) the Administrative Assessment in and by the DLC and other participants addition to Collective Total Costs as that (e) Responses to Other Requests for concurrent with their responsive term is defined by the MMA. DiMA Comments submissions (proposed § 355.3(f)(2)). contends that there are no such other DiMA correctly pointed out that the The first provision would require that costs. As a result, DiMA recommends Judges erred in the numbering of the the documents be filed with the Judges, that the Judges strike the italicized subparagraphs of the definition of while the second and third provision language from proposed § 355.3(c)(2)(i). Purchased Content Locker Service in would not require such filing. DiMA In the interests of avoiding ambiguity, § 385.2. DiMA Comment at 19–20. The believes that none of the provisions the Judges accept the recommended Judges modify the definition to revert should require filing with the Judges change. and therefore recommends that the the numbering of this definition to the DiMA also highlights three sections of Judges modify proposed § 355.3(b)(2) to numbering in the extant definition. the rule proposal that address the DiMA also noted an inconsistency in remove the filing requirement, which mandatory written disclosures that the the proposal regarding the duration of DiMA contends would help to promote MLC, DLC, and other proceeding the first negotiation period (i.e., 45 days efficiency in Administrative Assessment participants must provide concurrently in proposed § 355.2(g)(1)(i) versus 60 proceedings since the participants are with their submissions in the days in proposed § 355.4(a)). DiMA likely to produce a broader scope of Administrative Assessment proceeding supports a 60-day period.8 In its documents than the narrower subset of (i.e., proposed §§ 355.3(b)(3), comment NMPA noted the same documents they ultimately will attach 355.3(c)(3), and 355.3(f)(3)). DiMA discrepancy, and speculated that it as exhibits to their submissions or use points out that although the substance might relate to the Judges’ belief that the at the hearing. DiMA Comment at 21– of the written disclosures is generally negotiation period should commence 22. In the interests of promoting such consistent among the three subsections, after the parties to the proceeding have efficiency, the Judges accept DiMA’s the specific language of the proposed been determined, rather than at the recommendation and modify proposed rules differs. DiMA recommends that commencement of the proceeding as § 355.3(b)(2) to mirror the related the language of the three sections be NMPA and DiMA had recommend in provisions that DiMA references. harmonized and believes that the their Joint Proposal. NMPA Comment at DiMA also highlights two parallel language of § 355.3(b)(3) is the clearest 7. provisions in proposed The Judges are sympathetic to DiMA’s §§ 355.3(b)(2)(iii) and 355.3(c)(2)(v) and therefore should be the model for concerns that there be adequate time to regarding documents the MLC must each of the sections. DiMA Comment at negotiate and therefore expand the first provide concurrently with its opening 23–24. The Judges support the goal of negotiation period to 60 days, but the submission in the initial Administrative harmonization of comparable provisions Judges note their desire that all parties Assessment proceeding and in and therefore accept DiMA’s have the opportunity to play a proceedings to adjust the recommended modifications. meaningful role in the negotiation Administrative Assessment. DiMA DiMA also recommended that process and therefore will direct the opines that the language in the two proposed § 355.3(e) addressing MLC and the DLC, if any, to monitor the sections should be identical but that it deposition notices be clarified by list of parties filing petitions to currently varies and that such variation removing an ambiguity. DiMA Comment participate 9 and to include all creates ambiguity and inconsistency. at 24. The Judges believe the petitioners in any ongoing negotiations. DiMA believes that the applicable recommended modification is DiMA notes what it believes is an language in proposed § 355.3(c)(2)(v) is appropriate and reasonable and internal inconsistency in the beginning clearer and should apply to proposed therefore accept DiMA’s recommended of the first discovery period set forth in § 355.3(b)(2)(iii) also. DiMA Comment at modification.11 proposed § 355.2(g)(1)(iii) and the 22–23. The Judges agree and accept DiMA also recommends that proposed 10 second discovery period set forth in DiMA’s recommended modification. § 350.1 be modified to clarify that DiMA also highlights a phrase in proposed § 355.2(g)(1)(v) and the Administrative Assessment proceedings proposed § 355.3(c)(2)(i) relating to the procedure for calculating due dates are proceedings pursuant to 17 U.S.C. MLC’s obligation to produce documents generally, set forth in proposed 801(b). The Judges believe that DiMA’s that identify and demonstrate ‘‘costs, § 303.7(a). DiMA recommends a recommended modification is collections, and contributions as modification to § 355.2(g)(1)(iii). DiMA appropriate and reasonable and Comment at 21. The Judges believe that 10 The revised provision states: ‘‘The Collective’s processes for requesting proposals, inviting bids, 11 The modified sentence states: ‘‘The initial 8 NMPA likewise noted the discrepancy but did ranking and selecting the proposals and bids of notice of deposition under this paragraph (e) must not advocate for a particular duration for the potential contracting and sub-contracting parties be delivered by email or other electronic means to negotiation period. See NMPA Comment at 7. competitively (or by another method), including all participants in the proceeding, and such notice 9 The Copyright Royalty Board’s electronic filing processes for ensuring the absence of overlapping shall be sent no later than seven days prior to the and case management system, eCRB, maintains a ownership or other overlapping economic interests scheduled deposition date, unless the deposition is list of participants for each proceeding. That list is between the Collective or its members and any scheduled to occur less than seven days after the updated automatically each time a petition to selected contracting or sub-contracting party’’. date of the notice by agreement of the parties and participate is accepted for filing. Proposed § 355.3(b)(2)(iii). the deponent.’’ Proposed § 355.3(e).

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therefore they accept DiMA’s consistent with the Judges’ obligations responsibility under the MMA to recommended modification.12 under the Copyright Act as amended by identify its ‘‘needs and budget,’’ the DiMA comments that the Judges the MMA and supported by evidence in DLC and the users of the musical works declined in the proposal to adopt the record. have a commensurate obligation under certain changes to extant § 385.21(d), In the Notice, the Judges also asked the MMA to bear the costs associated which DiMA contends would mitigate whether the DLC should be required with operating the MLC. Nothing in the the need for future updates to part 385 (rather than permitted) to submit and rules adopted herein prohibits the DLC which DiMA believes will likely be support a counterproposal. 84 FR at (or any other participant that would required after the Copyright Office 9057. NMPA believes that such a bear any or all of the costs assessed) adopts new regulations with respect to provision ‘‘is not only unnecessary, but from proposing in its (or their) statements of account and the content would be counterproductive.’’ NMPA submissions, on an itemized basis and format of usage data that will be Comment at 5. NMPA contends that the corresponding with the items in the required to be reported to the MLC after DLC should comment on and respond to MLC’s proposal, a rejection of, or the license availability date (as defined the MLC’s proposal rather than submit substitution for, one or more of the in the MMA) (e.g., while the per-play a wholly separate one. Id. NMPA states provisions in the MLC proposal. calculation is currently performed by that under the MMA, it is the MLC and NMPA also suggests that the Judges the service providers, DiMA anticipates not the DLC or any other party that is add the word ‘‘relevant’’ to the current that that responsibility will shift to the charged with the responsibility of definitions of ‘‘end user’’ and ‘‘stream’’ MLC (based on data reported by the ensuring that it fulfills its statutory in § 385.2 to avoid confusion regarding service providers) once the blanket duties. Id. NMPA contends that ‘‘any the usage of those terms in the license becomes available). DiMA legitimate proposal has to be based on regulation versus how those terms are Comment at 25. The Judges believe that the needs and budget of the MLC as used in the MMA, which, according to the proposed changes to extant rule reasonably determined by the MLC and NMPA are used differently and in a less 385.21(d) are reasonable and supported by evidence offered in the specific manner in the MMA than they appropriate and therefore adopt them. administrative assessment proceeding.’’ are in part 385. NMPA Comment at 15– DiMA also recommended certain NMPA Comment at 6, emphasis by 16.14 The Judges believe that the current technical updates to proposed § 303.5 NMPA.13 proposed regulations are sufficiently and related provisions that the Judges As a result, NMPA supports proposed clear and therefore decline to adopt believe are appropriate and therefore § 355.3(f) in its current form, which, NMPA’s suggested modifications to the adopt them. according to NMPA, reflects the definitions of end user and stream. NMPA correctly noted that the Judges approach in the Joint Comments of proposed, incorrectly, to omit 385.31(d) NMPA and DiMA by requiring the DLC 2. SoundExchange’s Comment 15 regarding ‘‘unauthorized use.’’ NMPA and other parties to respond to the SoundExchange generally supports Comment at 17. This provision will be MLC’s proposal rather than submit the proposed rules as they relate to pre- unchanged from the extant provision. competing proposals. NMPA Comment 1972 recordings under secs. 112 and 114 NMPA also cautioned the Judges that at 6. NMPA requests, however, that the of the Copyright Act and believes that an observation that the Judges made in Judges modify the proposed definition the Judges should adopt these the notice of proposed rulemaking of ‘‘Discoverable’’ in proposed § 355.7 provisions substantially as proposed. regarding retaining the extant ‘‘to ensure that it permits discovery of SoundExchange Comment at 2.16 Most assessment if the Judges found that the information relevant to both a proposal of SoundExchange’s comment MLC’s proposal did not fulfill the or response thereto.’’ NMPA Comment addressed the definition of copyright requirements of 17 U.S.C. 115(d)(7) at 6, emphasis original. NMPA also asks owner and the SDARS Pre-1972 royalty ‘‘would seem to be inconsistent with the that the Judges eliminate the restriction deduction, which are discussed in turn responsibilities entrusted to the [Judges] in proposed § 355.3(g) that limits the below.17 by Congress in relation to the scope of discovery taken by the MLC to administrative assessment.’’ NMPA discovery regarding counterproposals. (a) Definition of Copyright Owner Comment at 3. NMPA states that the NMPA states the ‘‘[i]n order to reply to With respect to the definition of Judges must establish the concerns raised by the DLC or others, copyright owner in the proposed rules, Administrative Assessment in an the MLC must be permitted to take amount that meets the requirements set discovery on their responsive 14 NMPA also notes that the Judges declined to forth in 17 U.S.C. 115(d)(7). According submissions, regardless of the precise add a sentence to the definition of ‘‘eligible to NMPA, ‘‘[i]f the correct amount nature or characterization of those interactive stream’’ that states: ‘‘An Eligible Interactive Stream is a digital phonorecord happens to be the extant assessment, responses.’’ NMPA Comment at 6, delivery.’’ NMPA Comment at 16. NMPA defers to then retaining that assessment would be emphasis original. the Judges’ conclusion that such an addition is not appropriate if it fulfills the requisite The Judges believe NMPA’s proposed necessary or helpful but notes that ‘‘NMPA and statutory criteria—but if it does not modifications are reasonable and DiMA understand ‘Eligible Interactive Streams’ to appropriate and therefore adopt them. be digital phonorecord deliveries as per the MMA fulfill such criteria, then retaining the definition, and therefore subject to licensing under extant amount would be erroneous.’’ However, although the NMPA correctly section 115.’’ Id. NMPA Comment at 4. The Judges notes that it is the MLC that has a 15 SoundExchange did not address aspects of the recognize that no matter what amount proposed rules relating to the sec. 115 compulsory they choose as the Administrative 13 The NMPA asserts that the Administrative license. SoundExchange Comment at n.1. Assessment proceeding is fundamentally different 16 SoundExchange also encourages the Judges to Assessment, that choice must be from a royalty rate proceeding, in which the Judges approve its pending proposal, unrelated to the typically consider competing proposals to current rulemaking, to grant SoundExchange the 12 The modified sentence states: ‘‘The procedures determine the rate that best reflects the probable authority to use proxy data to distribute statutory set forth in part 355 of this subchapter shall govern outcome of market-based negotiations. NMPA states royalties in cases in which a licensee never administrative assessment proceedings pursuant to that the Administrative Assessment is not meant to provides a usable report of use. SoundExchange 17 U.S.C. 115(d) and 801(b)(8), and the procedures emulate market negotiations or choose between Comment at n.2. set forth in parts 351 through 354 of this subchapter competing rates but is instead meant to capture the 17 SoundExchange also recommended two shall govern all other proceedings pursuant to 17 actual costs of operating the MLC. NMPA Comment technical changes to the proposed rules, both of U.S.C. 801(b).’’ Proposed § 350.1. at n.5. which the Judges adopt as recommended.

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SoundExchange addresses a concern seems more theoretical than real. 37 CFR Part 355 that the Judges raised about potential SoundExchange Comment at 6. Administrative assessment, unintended consequences that could SoundExchange tried to identify such Administrative practice and procedure, occur by including ‘‘rights owner’’ as recordings used by Sirius XM in a Copyright. defined in sec. 1401(l)(2) of the recent month and found that of the Copyright Act in the definition of million sound recording plays during 37 CFR Parts 370 and 380 ‘‘copyright owners.’’ SoundExchange the month, only a ‘‘handful of plays’’ Copyright, Sound recordings. states that sec. 1401 is ‘‘quite clear about seemed potentially to involve 37 CFR Parts 382 and 383 what rights do, and do not, come with recordings originally released before being a rights owner under sec. 1923. Id. at 8. By contrast, the extant Copyright, Digital audio 1401(l)(2).’’ Moreover, SoundExchange pre-1972 deduction addressed 10–15% transmissions, Performance right, Sound ‘‘does not believe that anyone could of Sirius XM’s actual usage when the recordings. reasonably see the references to both Judges adopted it in 2013. copyright owners and rights owners 37 CFR Part 384 SoundExchange Comment at 9, citing within [the proposed definitions] and Copyright, Digital audio infer that those two concepts are SDARS II, 78 FR 23054, 23071 (Apr. 17, transmissions, Ephemeral recordings, redundant and mean the same thing for 2013). SoundExchange notes that the Performance right, Sound recordings. pre-1972 deduction is inoperative today all purposes under the Copyright Act.’’ 37 CFR Part 385 SoundExchange Comment at 4. and will have no material effect during Nevertheless, SoundExchange suggests a the current rate period. SoundExchange Copyright, Phonorecords, Recordings. proposed modification to the definition Comment at 9. Moreover, For the reasons stated in the of Copyright Owners in § 370.1 to SoundExchange is concerned that Sirius preamble, the Copyright Royalty Judges distinguish between copyright owners XM could misapply any permissible amend 37 CFR chapter III as set forth under 17 U.S.C. 101 and rights owners deduction and that the extant below: 18 under 17 U.S.C. 1401(l)(2). The Judges regulations could be misread as SUBCHAPTER A—GENERAL PROVISIONS believe the modification allowing a royalty deduction for ■ SoundExchange suggests addresses the recordings ‘‘fixed before February 15, 1. Add part 303 to read as follows: concern of unintended consequences or 1972’’ when no such deduction is PART 303—GENERAL confusion over the use of the term available through 2021, and in 2022 and ADMINISTRATIVE PROVISIONS copyright owners to refer to copyright 2023 a deduction would only apply to owners and rights owners. Therefore the original recordings published before Sec. Judges adopt the suggested 1923. Id. 303.1 [Reserved] modification. 303.2 Representation. The Judges believe that 303.3 Documents: Format and length. (b) SDARS Pre-1972 Deduction SoundExchange has adequately 303.4 Content of motion and responsive SoundExchange also addressed the addressed concerns over an SDARS use pleadings. proposed amendments to part 382, of recordings that will enter the public 303.5 Electronic filing system (eCRB). subpart C, concerning adjustment of domain and therefore adopt the 303.6 Filing and delivery. regulations related to pre-1972 sound 303.7 Time. statutory royalty payment for SDARS to 303.8 Construction and waiver. reflect use of sound recordings fixed recordings as proposed. before February 15, 1972, which Authority: 17 U.S.C. 803. (c) Proposed Technical Corrections SoundExchange contended in its § 303.1 [Reserved] comment to the NOI ‘‘have become SoundExchange also recommended inoperative by their terms.’’ 84 FR at two technical corrections, both of which § 303.2 Representation. 9060, quoting SoundExchange Comment the Judges find reasonable and Individual parties in proceedings on Notice of Inquiry at 6. Although the appropriate and adopt. In particular, before the Judges may represent Judges proposed the amendments as SoundExchange correctly noted that the themselves or be represented by an SoundExchange had recommended, the authority citation for part 370 should attorney. All other parties must be Judges requested comment on the effect, reference sec. 114(f)(3)(A) rather than represented by an attorney. Cf. Rule if any, the proposed modifications 114(f)(4)(A) to reflect the renumbering 49(c)(11) of the Rules of the District of would have on computation of royalties of the paragraphs of sec. 114(f) in the Columbia Court of Appeals. The when an SDARS plays pre-1972 sound MMA. SoundExchange also noted that appearance of an attorney on behalf of recordings that have fallen into the the definition of ‘‘Copyright Owner’’ in any party constitutes a representation public domain. 84 FR at 9060. § 383.2(b) should refer to a copyright that the attorney is a member of the bar, SoundExchange acknowledges that owner or (as opposed to and in the in one or more states, in good standing. beginning in 2022, there will be sound current proposal) a rights owner under recordings in the public domain. § 303.3 Documents: Format and length. sec. 1401(l)(2). SoundExchange Nevertheless, SoundExchange believes (a) Format—(1) Caption and Comment at 10. that because these sound recordings will description. Parties filing pleadings and be roughly a century or more old when List of Subjects documents in a proceeding before the that occurs that the possibility of Sirius Copyright Royalty Judges must include XM using public domain recordings 37 CFR Part 303 on the first page of each filing a caption that identifies the proceeding by Administrative practice and 18 As an alternative that SoundExchange sees as proceeding type and docket number, less satisfactory, SoundExchange suggests that the procedure, Copyright, Lawyers. and a heading under the caption Judges could adopt a new term that is neither describing the nature of the document. copyright owner nor rights owner to refer to a group 37 CFR Part 350 that includes both. The Judges agree that such an In addition, to the extent alternative would be less satisfaction than the first Administrative practice and technologically feasible using software alternative that SoundExchange proposes. procedure, Copyright. available to the general public, Parties

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must include a footer on each page after file (such as audio and video files, files granting an enlargement of the page the page bearing the caption that that contain text or images that would limit for a motion or response shall be includes the name and posture of the not be sufficiently legible after deemed to grant the same enlargement filing party, e.g., [Party’s] Motion, conversion, or spreadsheets that contain of the page limit for a response or reply, [Party’s] Response in Opposition, etc. too many columns to be displayed respectively. (2) Page layout. Parties must submit legibly on an 8 1⁄2″ x 11″ page). (1) Motions. Motions must not exceed documents that are typed (double Participants must provide electronic 20 pages and must not exceed 5000 spaced) using a serif typeface (e.g., copies in their native electronic format words (exclusive of cover pages, tables Times New Roman) no smaller than 12 of any exhibits or attachments that of contents, tables of authorities, points for text or 10 points for footnotes cannot be converted into a usable PDF signature blocks, exhibits, and proof of and formatted for 8 1⁄2″ by 11″ pages file. In addition, participants may delivery). with no less than 1 inch margins. Parties provide copies of other electronic files (2) Responses. Responses in support must assure that, to the extent in their native format, in addition to of or opposition to motions must not technologically feasible using software PDF versions of those files, if doing so exceed 20 pages and must not exceed available to the general public, any is likely to assist the Judges in 5000 words (exclusive of cover pages, exhibit or attachment to documents perceiving the content of those files. tables of contents, tables of authorities, reflects the docket number of the (5) No scanned pleadings. Parties signature blocks, exhibits, and proof of proceeding in which it is filed and that must convert every filed document delivery). all pages are numbered appropriately. directly to PDF format (using ‘‘print to (3) Replies. Replies in support of Any party submitting a document to the pdf’’ or ‘‘save to pdf’’), rather than motions must not exceed 10 pages and Copyright Royalty Board in paper submitting a scanned PDF image. The must not exceed 2500 words (exclusive format must submit it unfolded and Copyright Royalty Board will NOT of cover pages, tables of contents, tables produced on opaque 8 1⁄2 by 11 inch accept scanned documents, except in of authorities, signature blocks, exhibits, white paper using clear black text, and the case of specific exhibits or and proof of delivery). color to the extent the document uses attachments that are available to the color to convey information or enhance filing party only in paper form. § 303.4 Content of motion and responsive readability. (6) Scanned exhibits. Parties must pleadings. (3) Binding or securing. Parties scan exhibits or other documents that A motion, responsive pleading, or submitting any paper document to the are only available in paper form at no reply must, at a minimum, state Copyright Royalty Board must bind or less than 300 dpi. All exhibits must be concisely the specific relief the party secure the document in a manner that searchable. Parties must scan in color seeks from the Copyright Royalty will prevent pages from becoming any exhibit that uses color to convey Judges, and the legal, factual, and separated from the document. For information or enhance readability. evidentiary basis for granting that relief example, acceptable forms of binding or (7) Bookmarks. Parties must include (or denying the relief sought by the securing include: Ring binders; spiral in all electronic documents appropriate moving party). A motion, or a binding; comb binding; and for electronic bookmarks to designate the responsive pleading that seeks documents of fifty pages or fewer, a tabs and/or tables of contents that alternative relief, must be accompanied binder clip or single staple in the top would appear in a paper version of the by a proposed order. left corner of the document. Rubber same document. bands and paper clips are not acceptable (8) Page rotation. Parties must ensure § 303.5 Electronic filing system (eCRB). means of securing a document. that all pages in electronic documents (a) Documents to be filed by electronic (b) Additional format requirements for are right side up, regardless of whether means. Except as otherwise provided in electronic documents—(1) In general. they are formatted for portrait or this chapter, all attorneys must file Parties filing documents electronically landscape printing. documents with the Copyright Royalty through eCRB must follow the (9) Signature. The signature line of an Board through eCRB. Pro se parties may requirements of paragraphs (a)(1) and electronic pleading must contain ‘‘/s/’’ file documents with the Copyright (2) of this section and the additional followed by the signer’s typed name. Royalty Board through eCRB, subject to requirements in paragraphs (b)(2) The name on the signature line must § 303.4(c)(2). through (10) of this section. match the name of the user logged into (b) Official record. The electronic (2) Pleadings; file type. Parties must eCRB to file the document. version of a document filed through and file all pleadings, such as motions, (10) File size. The eCRB system will stored in eCRB will be the official responses, replies, briefs, notices, not accept PDF or Word files that record of the Copyright Royalty Board. declarations of counsel, and exceed 128 MB, or files in any other (c) Obtaining an electronic filing memoranda, in Portable Document format that exceed 500 MB. Parties may password—(1) Attorneys. An attorney Format (PDF). divide excessively large files into must obtain an eCRB password from the (3) Proposed orders; file type. Parties multiple parts if necessary to conform to Copyright Royalty Board in order to file filing a proposed order as required by this limitation. documents or to receive copies of orders § 303.4 must prepare the proposed order (c) Length of submissions. Whether and determinations of the Copyright as a separate Word document and filing in paper or electronically, parties Royalty Judges. The Copyright Royalty submit it together with the main must adhere to the following space Board will issue an eCRB password after pleading. limitations or such other space the attorney applicant completes the (4) Exhibits and attachments; file limitations as set forth in subchapter B application form available on the CRB types. Parties must convert or as the Copyright Royalty Judges may website. electronically (not scan) to PDF format direct by order. Any party seeking an (2) Pro se parties. A party not all exhibits or attachments that are in enlargement of the applicable page limit represented by an attorney (a pro se electronic form, with the exception of must make the request by a motion to party) may obtain an eCRB password proposed orders and any exhibits or the Copyright Royalty Judges filed no from the Copyright Royalty Board with attachments in electronic form that fewer than three days prior to the permission from the Copyright Royalty cannot be converted into a usable PDF applicable filing deadline. Any order Judges, in their discretion. Once the

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Copyright Royalty Board has issued an time of filing, that any documents personal information that is not material eCRB password to a pro se party, that subject to a protective order are to the proceeding. party must make all subsequent filings identified to the eCRB system as (l) Incorrectly filed documents. (1) by electronic means through eCRB. ‘‘restricted’’ documents. This The Copyright Royalty Board may direct (3) Claimants. Any person desiring to requirement is in addition to any an eCRB filer to re-file a document that file a claim with the Copyright Royalty requirements detailed in the applicable has been incorrectly filed, or to correct Board for copyright royalties may obtain protective order. Failure to identify an erroneous or inaccurate docket entry. an eCRB password for the limited documents as ‘‘restricted’’ to the eCRB (2) If an attorney or a pro se party who purpose of filing claims by completing system may result in inadvertent has been issued an eCRB password the application form available on the publication of sensitive, protected inadvertently presents a document for CRB website. material. filing in paper form, the Copyright (d) Use of an eCRB password. An (j) Exceptions to requirement of Royalty Board may direct the attorney or eCRB password may be used only by the electronic filing—(1) Certain exhibits or pro se party to file the document person to whom it is assigned, or, in the attachments. Parties may file in paper electronically. The document will be case of an attorney, by that attorney or form any exhibits or attachments that deemed filed on the date it was first an authorized employee or agent of that are not in a format that readily permits presented for filing if, no later than the attorney’s law office or organization. electronic filing, such as oversized next business day after being so directed The person to whom an eCRB password documents; or are illegible when by the Copyright Royalty Board, the is assigned is responsible for any scanned into electronic format. Parties attorney or pro se participant files the document filed using that password. filing paper documents or things document electronically. If the party (e) Signature. The use of an eCRB pursuant to this paragraph must deliver fails to make the electronic filing on the password to login and submit legible or usable copies of the documents creates an electronic record. next business day, the document will be documents or things in accordance with The password operates and serves as the deemed filed on the date of the § 303.6(a)(2) and must file electronically signature of the person to whom the electronic filing. a notice of filing that includes a password is assigned for all purposes (m) Technical difficulties. (1) A filer certificate of delivery. under this chapter III. encountering technical problems with (f) Originals of sworn documents. The (2) Pro se parties. A pro se party may an eCRB filing must immediately notify electronic filing of a document that file documents in paper form and must the Copyright Royalty Board of the contains a sworn declaration, deliver and accept delivery of problem either by email or by verification, certificate, statement, oath, documents in paper form, unless the pro telephone, followed promptly by or affidavit certifies that the original se party has obtained an eCRB written confirmation. signed document is in the possession of password. (2) If a filer is unable due to technical the attorney or pro se party responsible (k) Privacy requirements. (1) Unless problems to make a filing with eCRB by for the filing and that it is available for otherwise instructed by the Copyright an applicable deadline, and makes the review upon request by a party or by the Royalty Judges, parties must exclude or notification required by paragraph Copyright Royalty Judges. The filer must redact from all electronically filed (m)(1) of this section, the filer shall use file through eCRB a scanned copy of the documents, whether designated electronic mail to make the filing with signature page of the sworn document ‘‘restricted’’ or not: the CRB and deliver the filing to the together with the document itself. (i) Social Security numbers. If an other parties to the proceeding. The (g) Consent to delivery by electronic individual’s Social Security number filing shall be considered to have been means. An attorney or pro se party who must be included in a filed document made at the time it was filed by obtains an eCRB password consents to for evidentiary reasons, the filer must electronic mail. The Judges may direct electronic delivery of all documents, use only the last four digits of that the filer to refile the document through subsequent to the petition to participate, number. eCRB when the technical problem has that are filed by electronic means (ii) Names of minor children. If a been resolved, but the document shall through eCRB. Counsel and pro se minor child must be mentioned in a retain its original filing date. parties are responsible for monitoring document for evidentiary reasons, the (3) The inability to complete an their email accounts and, upon receipt filer must use only the initials of that electronic filing because of technical of notice of an electronic filing, for child. problems arising in the eCRB system retrieving the noticed filing. Parties and (iii) Dates of birth. If an individual’s may constitute ‘‘good cause’’ (as used in their counsel bear the responsibility to date of birth must be included in a § 303.6(b)(4)) for an order enlarging time keep the contact information in their pleading for evidentiary reasons, the or excusable neglect for the failure to act eCRB profiles current. filer must use only the year of birth. within the specified time, provided the (h) Accuracy of docket entry. A (iv) Financial account numbers. If a filer complies with paragraph (m)(1) of person filing a document by electronic financial account number must be this section. This section does not means is responsible for ensuring the included in a pleading for evidentiary provide authority to extend statutory accuracy of the official docket entry reasons, the filer must use only the last time limits. generated by the eCRB system, four digits of the account identifier. including proper identification of the (2) Protection of personally § 303.6 Filing and delivery. proceeding, the filing party, and the identifiable information. If any (a) Filing of pleadings—(1) Electronic description of the document. The information identified in paragraph filing through eCRB. Except as described Copyright Royalty Board will maintain (k)(1) of this section must be included in § 303.5(l)(2), any document filed by on its website (www.loc.gov/crb) in a filed document, the filing party electronic means through eCRB in appropriate guidance regarding naming must treat it as confidential information accordance with § 303.5 constitutes protocols for eCRB filers. subject to the applicable protective filing for all purposes under this (i) Documents subject to a protective order. In addition, parties may treat as chapter, effective as of the date and time order. A person filing a document by confidential, and subject to the the document is received and electronic means must ensure, at the applicable protective order, other timestamped by eCRB.

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(2) All other filings. For all filings not (ii) The claims, defenses, and other delivery of all filed documents to parties submitted by electronic means through legal contentions therein are warranted that do not use the eCRB system. eCRB, the submitting party must deliver by existing law or by a nonfrivolous (2) Other filings. During the course of an original, five paper copies, and one argument for the extension, a proceeding, each party must deliver electronic copy in Portable Document modification, or reversal of existing law all documents that they have filed other Format (PDF) on an optical data storage or the establishment of new law; than through eCRB to the other parties medium such as a CD or DVD, a flash (iii) The allegations and other factual or their counsel by means no slower memory device, or an external hard disk contentions have evidentiary support or, than overnight express mail sent on the drive to the Copyright Royalty Board in if specifically so identified, are likely to same day they file the documents, or by accordance with the provisions have evidentiary support after a such other means as the parties may described in § 301.2 of this chapter. In reasonable opportunity for further agree in writing among themselves. no case will the Copyright Royalty investigation or discovery; and Parties must include a proof of delivery Board accept any document by facsimile (iv) The denials of factual contentions with any document delivered in transmission or electronic mail, except are warranted by the evidence or, if accordance with this paragraph. with prior express authorization of the specifically so identified, are reasonably § 303.7 Time. Copyright Royalty Judges. based on a lack of information or belief. (b) Exhibits. Filers must include all (2) Parties representing themselves. (a) Computation. To compute the due exhibits with the pleadings they The original of all paper documents date for filing and delivering any support. In the case of exhibits not filed by a party not represented by document or performing any other act submitted by electronic means through counsel must be signed by that party directed by an order of the Copyright and list that party’s full name, mailing eCRB, whose bulk or whose cost of Royalty Judges or the rules of the address, email address (if any), and reproduction would unnecessarily Copyright Royalty Board: telephone number. The party’s signature encumber the record or burden the (1) Exclude the day of the act, event, will constitute the party’s certification party, the Copyright Royalty Judges will or default that begins the period. that, to the best of his or her knowledge (2) Exclude intermediate Saturdays, consider a motion, made in advance of and belief, there is good ground to Sundays, and Federal holidays when the filing, to reduce the number of support the document, and that it has the period is less than 11 days, unless required copies. See § 303.5(j). not been interposed for purposes of computation of the due date is stated in (c) English language translations. delay. calendar days. Filers must accompany each submission (f) Responses and replies. Responses (3) Include the last day of the period, that is in a language other than English in support of or opposition to motions unless it is a Saturday, Sunday, Federal with an English-language translation, must be filed within ten days of the holiday, or a day on which the weather duly verified under oath to be a true filing of the motion. Replies to or other conditions render the Copyright translation. Any other party to the responses must be filed within five days Royalty Board’s office inaccessible. proceeding may, in response, submit its of the filing of the response. (4) As used in this rule, ‘‘Federal own English-language translation, (g) Participant list. The Copyright holiday’’ means the date designated for similarly verified, so long as the Royalty Judges will compile and the observance of New Year’s Day, responding party’s translation proves a distribute to those parties who have Inauguration Day, Birthday of Martin substantive, relevant difference in the filed a valid petition to participate the Luther King, Jr., George Washington’s document. official participant list for each Birthday, Memorial Day, Independence (d) Affidavits. The testimony of each proceeding, including each participant’s Day, Labor Day, Columbus Day, witness must be accompanied by an mailing address, email address, and Veterans Day, Thanksgiving Day, affidavit or a declaration made pursuant whether the participant is using the Christmas Day, and any other day to 28 U.S.C. 1746 supporting the eCRB system for filing and receipt of declared a Federal holiday by the testimony. See § 303.5(f). documents in the proceeding. For all President or the Congress. (e) Subscription—(1) Parties paper filings, a party must deliver a (5) Except as otherwise described in represented by counsel. Subject to copy of the document to counsel for all this Chapter or in an order by the § 303.5(e), all documents filed other parties identified in the Copyright Royalty Judges, the Copyright electronically by counsel must be signed participant list, or, if the party is Royalty Board will consider documents by at least one attorney of record and unrepresented by counsel, to the party to be timely filed only if: must list the attorney’s full name, itself. Parties must notify the Copyright (i) They are filed electronically mailing address, email address (if any), Royalty Judges and all parties of any through eCRB and time-stamped by telephone number, and a state bar change in the name or address at which 11:59:59 p.m. Eastern time on the due identification number. See § 303.5(e). they will accept delivery and must date; Submissions signed by an attorney for a update their eCRB profiles accordingly. (ii) They are sent by U.S. mail, are party need not be verified or (h) Delivery method and proof of addressed in accordance with § 301.2(a) accompanied by an affidavit. The delivery—(1) Electronic filings through of this chapter, have sufficient postage, signature of an attorney constitutes eCRB. Electronic filing of any document and bear a USPS postmark on or before certification that the contents of the through eCRB operates to effect delivery the due date; document are true and correct, to the of the document to counsel or pro se (iii) They are hand-delivered by best of the signer’s knowledge, participants who have obtained eCRB private party to the Copyright Office information, and belief, formed after an passwords, and the automatic notice of Public Information Office in accordance inquiry reasonable under the filing sent by eCRB to the filer with § 301.2(b) of this chapter and circumstances and: constitutes proof of delivery. Counsel or received by 5:00 p.m. Eastern time on (i) The document is not being parties who have not yet obtained eCRB the due date; or presented for any improper purpose, passwords must deliver and receive (iv) They are hand-delivered by such as to harass or to cause delivery as provided in paragraph (h)(2) commercial courier to the Congressional unnecessary delay or needless increase of this section. Parties making electronic Courier Acceptance Site in accordance in the cost of litigation; filings are responsible for assuring with § 301.2(c) of this chapter and

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received by 4:00 p.m. Eastern time on PART 355—ADMINISTRATIVE Copyright Royalty Judges shall accept a the due date. ASSESSMENT PROCEEDINGS properly filed petition under this (6) Any document sent by mail and paragraph (b) as sufficient grounds to dated only with a business postal meter Sec. commence a proceeding to adjust the will be considered filed on the date it 355.1 Proceedings in general. Administrative Assessment and shall 355.2 Commencement of proceedings. is actually received by the Library of 355.3 Submissions and discovery. publish a notice in the Federal Register Congress. 355.4 Negotiation periods. in the month of June seeking petitions (b) Extensions. A party seeking an 355.5 Hearing procedures. to participate in the proceeding. extension must do so by written motion. 355.6 Determinations. (c) Required participants. The Prior to filing such a motion, a party 355.7 Definitions. Mechanical Licensing Collective and the must attempt to obtain consent from the Authority: 17 U.S.C. 801; 17 U.S.C. 115. Digital Licensee Coordinator designated other parties to the proceeding. An by the Register of Copyrights in extension motion must state: § 355.1 Proceedings in general. accordance with 17 U.S.C. 115(d)(5) (1) The date on which the action or (a) Scope. This section governs shall each file a petition to participate submission is due; proceedings before the Copyright and shall participate in each (2) The length of the extension sought; Royalty Judges to determine or adjust Administrative Assessment proceeding (3) The date on which the action or the Administrative Assessment under this section. submission would be due if the pursuant to the Copyright Act, 17 U.S.C. (d) Other eligible participants. A extension were allowed; 115(d), including establishing copyright owner, Digital Music (4) The reason or reasons why there procedures to enable the Copyright Provider, or Significant Nonblanket is good cause for the delay; Royalty Judges to make necessary Licensee may file a petition to (5) The justification for the amount of evidentiary or procedural rulings. participate in a proceeding under additional time being sought; and (b) Rulings. The Copyright Royalty paragraph (a) or (b) of this section. The (6) The attempts that have been made Judges may make any necessary Copyright Royalty Judges shall accept to obtain consent from the other parties procedural or evidentiary rulings during petitions to participate filed under this to the proceeding and the position of the any proceeding under this section and paragraph (d) unless the Judges find that other parties on the motion. may, before commencing a proceeding the petitioner lacks a significant interest § 303.8 Construction and waiver. under this section, make any rulings in the proceeding. that will apply to proceedings to be (e) Petitions to participate. Each The regulations of the Copyright conducted under this section. petition to participate filed under this Royalty Judges in this chapter are (c) Role of Chief Judge. The Chief section must include: intended to provide efficient and just Copyright Royalty Judge, or an (1) A filing fee of $150; administrative proceedings and will be individual Copyright Royalty Judge (2) The full name, address, telephone construed to advance these purposes. designated by the Chief Copyright number, and email address of the For purposes of an individual Royalty Judge, shall: petitioner; proceeding, the provisions of (1) Administer an oath or affirmation (3) The full name, address, telephone subchapters A and B may be suspended to any witness; and number, and email address of the or waived, in whole or in part, upon a (2) Rule on objections and motions. person filing the petition and of the showing of good cause, to the extent petitioner’s representative, if either allowable by law. § 355.2 Commencement of proceedings. differs from the filer; and (a) Commencement of initial SUBCHAPTER B—COPYRIGHT ROYALTY (4) Factual information sufficient to JUDGES RULES AND PROCEDURES Administrative Assessment proceeding. establish that the petitioner has a The Copyright Royalty Judges shall significant interest in the determination ■ 2. Revise part 350 to read as follows: commence a proceeding to determine of the Administrative Assessment. the initial Administrative Assessment PART 350—SCOPE (f) Notice of identity of petitioners. by publication no later than July 8, The Copyright Royalty Judges shall give Sec. 2019, of a notice in the Federal Register notice to all petitioners of the identity 350.1 Scope. seeking the filing of petitions to of all other petitioners. 350.2–350.4 [Reserved] participate in the proceeding. (g) Proceeding Schedule. (1) The Authority: 17 U.S.C. 803. (b) Adjustments of the Administrative Copyright Royalty Judges shall establish Assessment. Following the a schedule for the proceeding, which § 350.1 Scope. determination of the initial shall include dates for: This subchapter governs procedures Administrative Assessment, the (i) A first negotiation period of 60 applicable to proceedings before the Mechanical Licensing Collective, the days, beginning on the date of Copyright Royalty Judges in making Digital Licensee Coordinator, if any, and commencement of the proceeding; determinations and adjustments interested copyright owners, Digital (ii) Filing of the opening submission pursuant to 17 U.S.C. 115(d) and 801(b). Music Providers, or Significant by the Mechanical Licensing Collective The procedures set forth in part 355 of Nonblanket Licensees may file a described in § 355.3(b) or (c), with this subchapter shall govern petition with the Copyright Royalty concurrent production of required administrative assessment proceedings Judges to commence a proceeding to documents and disclosures; pursuant to 17 U.S.C. 115(d) and adjust the Administrative Assessment. (iii) A period of 60 days, beginning on 801(b)(8), and the procedures set forth Any petition for adjustment of the the day after the date the Mechanical in parts 351 through 354 of this Administrative Assessment must be Licensing Collective files its opening subchapter shall govern all other filed during the month of May and may submission, for the Digital Licensee proceedings pursuant to 17 U.S.C. not be filed earlier than 1 year following Coordinator and any other participant in 801(b). the most recent publication in the the proceeding, other than the Federal Register of a determination of Mechanical Licensing Collective, to § 350.2–350.4 [Reserved] the Administrative Assessment by the serve discovery requests and complete ■ 3. Add part 355 to read as follows: Copyright Royalty Judges. The discovery pursuant to § 355.3(d);

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(iv) Filing of responsive submissions shall file an opening submission, in reasons why the proposal fulfills the by the Digital Licensee Coordinator and accordance with the schedule the requirements in 17 U.S.C. 115(d)(7). The any other participant in the proceeding, Copyright Royalty Judges adopt opening submission shall include a with concurrent production of required pursuant to § 355.2(g), setting forth and written statement, any written documents and disclosures; supporting the Mechanical Licensing testimony and accompanying exhibits, (v) A period of 60 days, beginning on Collective’s proposed initial including financial statements from the the day after the due date for filing Administrative Assessment. The three most recent years’ operations of responsive submissions, for the opening submission shall consist of a the Mechanical Licensing Collective Mechanical Licensing Collective to written statement, including any written with annual budgets as well as annual serve discovery requests and complete testimony and accompanying exhibits, actual income and expense statements. discovery of the Digital Licensee and include reasons why the proposed (2) Concurrently with the filing of the Coordinator and any other participant in initial Administrative Assessment opening submission, the Mechanical the proceeding pursuant to § 355.3(g); fulfills the requirements in 17 U.S.C. Licensing Collective shall produce (vi) A second negotiation period of 14 115(d)(7). electronically and deliver by email to days, commencing on the day after the (2) Concurrently with the filing of the the other participants in the proceeding end of the Mechanical Licensing opening submission, the Mechanical documents that identify and Collective’s discovery period; Licensing Collective shall produce demonstrate: (vii) Filing of a reply submission, if electronically and deliver by email to (i) Costs, collections, and any, by the Mechanical Licensing the other participants in the proceeding contributions as required by 17 U.S.C. Collective; documents that identify and 115(d)(7) for the preceding three (viii) Filing of a joint pre-hearing demonstrate: calendar years and the three calendar submission by the Mechanical Licensing (i) Costs, collections, and years following thereafter; Collective, the Digital Licensee contributions as required by 17 U.S.C. (ii) For the preceding three calendar Coordinator, and any other participant 115(d)(7) through the License years, the amount of actual Collective in the hearing; and Availability Date and for the three Total Costs that was not sufficiently (ix) A hearing on the record. calendar years following thereafter; funded by the prior Administrative (2) The Copyright Royalty Judges may, (ii) The reasonableness of the Assessment, or the amount of any for good cause shown and upon Collective Total Costs; surplus from the prior Administrative reasonable notice to all participants, (iii) The Collective’s processes for Assessment after funding actual modify the schedule, except no requesting proposals, inviting bids, Collective Total Costs; participant in the proceeding may rely ranking and selecting the proposals and (iii) Actual collections from Digital on a schedule modification as a basis for bids of potential contracting and sub- Music Providers and Significant delaying the scheduled hearing date. contracting parties competitively (or by Nonblanket Licensees for the preceding The Copyright Royalty Judges may alter another method), including processes three calendar years and anticipated the hearing schedule only upon a for ensuring the absence of overlapping collections for the three calendar years showing of extraordinary circumstances. ownership or other overlapping following thereafter; No alteration of the schedule shall economic interests between the (iv) The reasonableness of the change the due date of the Collective or its members and any Collective Total Costs; and determination. selected contracting or sub-contracting (v) The Collective’s processes for party; and requesting proposals, inviting bids, § 355.3 Submissions and discovery. (iv) The reasons why the proposal ranking and selecting the proposals and (a) Protective orders. During the first fulfills the requirements in 17 U.S.C. bids of potential contracting and sub- negotiation period, the Mechanical 115(d)(7). contracting parties competitively (or by Licensing Collective, the Digital (3) Concurrently with the filing of the another method), including processes Licensee Coordinator, and any other opening submission, the Mechanical for ensuring the absence of overlapping participants that are represented by Licensing Collective shall provide ownership or other overlapping counsel shall negotiate and agree upon electronically and deliver by email to economic interests between the a written protective order to preserve the other participants in the proceeding Collective or its members and any the confidentiality of any confidential written disclosures that: selected contracting or sub-contracting documents, depositions, or other (i) List the individuals with material party. information exchanged or filed by the knowledge of, and availability to (3) Concurrently with the filing of the participants in the proceeding. No later provide testimony concerning, the opening submission, the Mechanical than 15 days after the Judges’ proposed initial Administrative Licensing Collective shall provide identification of participants, Assessment; and electronically and deliver by email to proponents of a protective order shall (ii) For each listed individual, the other participants in the proceeding file with the Copyright Royalty Judges a describe the subject(s) of his or her written disclosures that: motion for review and approval of the knowledge. (i) List the individuals with material order. No participant in the proceeding (c) Submission by the Mechanical knowledge of, and availability to shall distribute or exchange confidential Licensing Collective in proceedings to provide testimony concerning, the documents, depositions, or other adjust the Administrative Assessment. proposed adjusted Administrative information with any other participant (1) The Mechanical Licensing Collective Assessment; and in the proceeding until the receiving shall file an opening submission (ii) For each listed individual, participant affirms in writing its consent according to the schedule the Copyright describe the subject(s) of his or her to the protective order governing the Royalty Judges adopt pursuant to knowledge. proceeding. § 355.2(g). The opening submission (d) First discovery period. (1) During (b) Submission by the Mechanical shall set forth and support the the first discovery period, the Digital Licensing Collective in the initial Mechanical Licensing Collective’s Licensee Coordinator and any other Administrative Assessment proceeding. proposal to maintain or adjust the participant in the proceeding other than (1) The Mechanical Licensing Collective Administrative Assessment, including the Mechanical Licensing Collective,

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acting separately or represented jointly days prior to the scheduled deposition (ii) For each listed individual, to the extent permitted by the date, unless the deposition is scheduled describe the subject(s) of his or her concurrence of their interests, may serve to occur less than seven days after the knowledge. requests for additional documents on date of the notice by agreement of the (g) Second discovery period. (1) the Mechanical Licensing Collective and parties and the deponent. An individual During the discovery period described any other participant in the proceeding. is properly named as a deponent if that in § 355.2(g)(1)(v), the Mechanical Any document request shall be limited individual likely possesses information Licensing Collective may serve requests to documents that are Discoverable. that meets the standards for document for additional documents on the Digital (2) The Digital Licensee Coordinator production under this part. Licensee Coordinator and other parties and any other participant in the (f) Responsive submissions by the to the proceeding. Such requests shall proceeding, other than the Mechanical Digital Licensee Coordinator and other be limited to documents that are Licensing Collective, may notice and participants. The Digital Licensee Discoverable. (2) The Mechanical Licensing take depositions as provided in Coordinator and any other participant in Collective may notice and take paragraph (e) of this section. the proceeding shall file responsive (e) Depositions. The Digital Licensee depositions as provided in paragraph (e) submissions with the Copyright Royalty Coordinator may give notice of and take of this section. Judges in accordance with the schedule up to five depositions during the first (h) Discovery disputes. (1) Prior to adopted by the Copyright Royalty discovery period. To the extent any invoking the procedures set forth in this other participant eligible to take Judges. paragraph (h), any participant that seeks discovery during the first discovery (1) Responsive submissions of the intervention of the Copyright Royalty period and whose interests may not be Digital Licensee Coordinator, and any Judges to resolve a discovery dispute fully represented by either the other participant in the proceeding, must first attempt in good faith to Mechanical Licensing Collective or the shall consist of a written statement, resolve the dispute between it and the Digital Licensee Coordinator seeks to including any written testimony and other proceeding participant(s). All notice and take a deposition, that accompanying exhibits, stating the proceeding participants have a duty to, participant shall first notify all other extent to which the filing participant and shall, cooperate in good faith to proceeding participants and the agrees with the Administrative resolve any such disputes without participants shall attempt, in good faith, Assessment proposed by the Mechanical involvement of the Copyright Royalty to accommodate by agreement of the Licensing Collective. If the filing Judges to the extent possible. parties any deposition for which good participant disagrees with all or part of (2) In the event that two or more cause is shown. If, after good faith the Administrative Assessment participants are unable to resolve a discussions, the participants are unable proposed by the Mechanical Licensing discovery dispute after good-faith to agree with respect to any such Collective, then the written statement, consultation, a participant requesting additional deposition, the participant including any written testimony and discovery may file a motion and brief of seeking to take the deposition may file accompanying exhibits, shall include no more than 1,500 words with the a motion pursuant to paragraph (h) of analysis necessary to demonstrate why Copyright Royalty Judges. The motion this section. The Mechanical Licensing the Administrative Assessment must include a certification that the Collective may give notice of and take proposed by the Mechanical Licensing participant filing the motion attempted up to five depositions during the second Collective does not fulfill the to resolve the dispute at issue in good discovery period. Any deposition under requirements set forth in 17 U.S.C. faith, but was unable to do so. For a this paragraph (e) shall be no longer 115(d)(7). dispute involving the provision of than seven hours in duration on the (2) Concurrently with the filing of a documents or deposition testimony, the record (exclusive of adjournments for responsive submission indicating brief shall detail the reasons why the lunch and other personal needs), with disagreement with the Administrative documents or deposition testimony are each deponent subject to a maximum of Assessment proposed by the Mechanical Discoverable. one seven-hour deposition in any Licensing Collective, the filing (3) The responding participant may Administrative Assessment proceeding, participant shall produce electronically file a responsive brief of no more than except as otherwise extended in this and deliver by email to the participants 1,500 words within two business days part, or upon a motion demonstrating in and parties to the proceeding of the submission of the initial brief. good cause to extend the hour and day documents that demonstrate why the (4) Absent unusual circumstances, the limits. In addition to the party noticing Administrative Assessment proposed by Copyright Royalty Judges will rule on the deposition, any other parties to the the Mechanical Licensing Collective the dispute within three business days proceeding may attend any depositions does not fulfill the requirements set of the filing of the responsive brief. and shall have a right, but not an forth in 17 U.S.C. 115(d)(7). Upon reasonable notice to the obligation, to examine the deponent participants, the Chief Copyright during the final hour of the deposition, (3) Concurrently with the filing of Royalty Judge, or an individual (except as that allocation of time may responsive submission(s), the filing Copyright Royalty Judge designated by otherwise be stipulated by agreement of participant shall provide electronically the Chief Copyright Royalty Judge, may all participants attending the and deliver by email to the other consider and rule on any discovery deposition), provided that any participants in the proceeding written dispute in a telephone conference with participant exercising its right to disclosures that: the relevant participants. examine a deponent provides notice of (i) List the individuals with material (i) Reply submissions by the that intent no later than two days prior knowledge of, and availability to Mechanical Licensing Collective. The to the scheduled deposition date. The provide testimony concerning, the Mechanical Licensing Collective may initial notice of deposition under this reasons why the Administrative file a written reply submission paragraph (e) must be delivered by Assessment proposed by the Mechanical addressed only to the issues raised in email or other electronic means to all Licensing Collective does not fulfill the any responsive submission(s) filed participants in the proceeding, and such requirements set forth in 17 U.S.C. under paragraph (f) of this section in notice shall be sent no later than seven 115(d)(7); and accordance with the schedule adopted

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by the Copyright Royalty Judges, which exclusive of cover pages, tables of hearing and arguments addressed to the reply may include written testimony, contents, tables of authorities, signature written submissions and oral testimony documentation, and analysis addressed blocks, exhibits, and proof of delivery) proffered by the participants, except only to the issues raised in responsive about the proposed settlement. The that the Copyright Royalty Judges may, submission(s). settling parties may, within five days sua sponte or upon written or oral (j) Joint pre-hearing submission. No following the comment deadline, file in request of a participant, find good cause later than 14 days prior to the eCRB a joint response to any comments. to dispense with the oral direct, cross, commencement of the hearing, the or redirect examination of a witness, Mechanical Licensing Collective, the § 355.5 Hearing procedures. and rely, in whole or in part, on that Digital Licensee Coordinator, and any (a) En banc panel. The Copyright witness’s written testimony. The other parties to the proceeding shall file Royalty Judges shall preside en banc Copyright Royalty Judges may, at their jointly a written submission with the over any hearing to determine the discretion, and in a procedure the Copyright Royalty Judges, stating: reasonableness of and the allocation of Judges describe in a prehearing (1) Specific areas of agreement responsibility to contribute to the Scheduling Order, and after between the parties; and Administrative Assessment. consideration of the positions of counsel (2) A concise statement of issues (b) Attendance and participation. The for the participants, require expert remaining in dispute with respect to the Mechanical Licensing Collective, witnesses to be examined concurrently determination of the Administrative through an authorized officer or other by the Judges and/or the attorneys. If the Assessment. managing agent, and the Digital Judges so order, the expert witnesses Licensee Coordinator, if any, through an may then testify through a colloquy § 355.4 Negotiation periods. authorized officer or other managing among themselves, including questions (a) First negotiation period. The agent, shall attend and participate in the addressed to each other, as limited and Mechanical Licensing Collective and the hearing. Any other entity that has filed directed by the Judges and subject to Digital Licensee Coordinator shall, and a valid Petition to Participate and that valid objections by counsel and ruled other participants may, participate in the Copyright Royalty Judges have not upon by the Judges. The concurrent good faith in a first negotiation period found to be disqualified shall examination procedure may be utilized in an attempt to reach an agreement participate in an Administrative in conjunction with, or in lieu of, with respect to any issues in dispute Assessment proceeding hearing. If the traditional direct, cross, redirect and regarding the Administrative Copyright Royalty Judges find, sua (with leave of the Judges) further direct Assessment, commencing on the day of sponte or upon motion of a participant, or cross examination. In the absence of commencement under § 355.2(a) or (b), that a participant has failed any order directing the use of as applicable, and lasting 60 days. The substantially to comply with any of the concurrent examination, only the Mechanical Licensing Collective shall requirements of this part, the Copyright traditional form of examination advise the other participants, via email, Royalty Judges may exclude that described above shall be utilized. Only about the negotiations and invite them participant from participating in the witnesses who have submitted written to participate, as those participants hearing; provided, however, that the testimony or who were deposed in the appear in the participant list in eCRB. Mechanical Licensing Collective and the proceeding may be examined at the (b) Second negotiation period. The Digital Licensee Coordinator shall not hearing. A witness’s oral testimony shall Mechanical Licensing Collective and the be subject to exclusion. not exceed the subject matter of his or Digital Licensee Coordinator shall, and (c) Admission of written submissions, her written or deposition testimony. all other participants may, participate in deposition transcripts, and other Unless the Copyright Royalty Judges, on good faith in a second negotiation documents. Subject to any valid motion of a participant, order otherwise, period commencing on a date set by the objections of a participant, the no witness, other than an expert witness Copyright Royalty Judges and lasting 14 Copyright Royalty Judges shall admit or a person designated as a party days. into evidence at an Administrative representative for the proceeding, may (c) Written notification regarding Assessment hearing the complete initial, listen to, or review a transcript of, result of negotiations. By the close of a responsive, and reply submissions that testimony of another witness or negotiation period, the Mechanical the participants have filed. Participants witnesses prior to testifying. Licensing Collective and the Digital shall not file deposition transcripts, but (e) Objections. Participants may object Licensee Coordinator shall file in eCRB may utilize deposition transcripts for to evidence on any proper ground, by a joint written notification indicating the purposes and under the conditions written or oral objection, including on (1) Whether they have reached an described in Fed. R. Civ. P. 32 and the ground that a participant seeking to agreement, in whole or in part, with interpreting case law. Any participant offer evidence for admission has failed respect to issues in dispute regarding may expand upon excerpts at the without good cause to produce the the Administrative Assessment, hearing or counter-designate excerpts in evidence during the discovery process. (2) The details of any agreement, the written record to the extent The Copyright Royalty Judges may, but (3) A description of any issues as to necessary to provide appropriate are not required to, admit hearsay which they have not reached agreement, context for the record. During the evidence to the extent they deem it and hearing, upon the oral request of any appropriate. (4) A list of other participants that participant, any document proposed as (f) Transcript and record. The intend to join in any proposed an exhibit by any participant shall be Copyright Royalty Judges shall settlement resulting from the agreement admitted into evidence so long as that designate an official reporter for the of the Mechanical Licensing Collective document was produced previously by recording and transcribing of hearings. and the Digital Licensee Coordinator. any participant, subject only to a valid Anyone wishing to inspect the Participants, other than the settling evidentiary objection. transcript of a hearing, to the extent the parties, may, within five days following (d) Argument and examination of transcript is not restricted under a the filing of a proposed settlement, file witnesses. An Administrative protective order, may do so when the in eCRB comments (not to exceed ten Assessment hearing shall consist of the hearing transcript is filed in the pages and not to exceed 2500 words oral testimony of witnesses at the Copyright Royalty Judges’ electronic

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filing and case management system, of an agreed Administrative deposition testimony outweighs its eCRB, at https://app.crb.gov after the Assessment, however, the Copyright likely benefit. Documents or deposition hearing concludes. The availability of Royalty Judges may, for good cause testimony need not be admissible in restricted portions of any transcript shown, reject an agreement. If the evidence to be Discoverable. shall be described in the protective Copyright Royalty Judges reject a SUBCHAPTER D—NOTICE AND order. Any participant desiring daily or negotiated agreed Administrative RECORDKEEPING REQUIREMENTS FOR expedited transcripts shall make Assessment, they shall proceed with STATUTORY LICENSES separate arrangements with the adjudication in accordance with the designated court reporter. schedule in place in the proceeding. PART 370—NOTICE AND Rejection by the Copyright Royalty RECORDKEEPING REQUIREMENTS § 355.6 Determinations. Judges of a negotiated agreed FOR STATUTORY LICENSES (a) How made. The Copyright Royalty Administrative Assessment shall not Judges shall determine the amount and prejudice the parties’ ability to continue ■ 4. The authority citation for part 370 terms of the Administrative Assessment to negotiate and submit to the Copyright is revised to read as follows: in accordance with 17 U.S.C. 115(d)(7). Royalty Judges an alternate agreed Authority: 17 U.S.C. 112(e)(4), 114(f)(3)(A). The Copyright Royalty Judges shall base Administrative Assessment or resubmit ■ 5. In § 370.1: their determination on their evaluation an amended prior negotiated agreement of the totality of the evidence before ■ a. Remove the paragraph designations; that addresses the Judges’ reasons for ■ b. Remove the word ‘‘A’’ at the them, including oral testimony, written initial rejection at any time, including submissions, admitted exhibits, beginning of each definition; during a hearing or after a hearing at any ■ c. Arrange the definitions in designated deposition testimony, the time before the Copyright Royalty record associated with any motions and alphabetical order; and Judges issue a determination. ■ d. Add the definition of ‘‘Copyright objections by participants, the (e) Continuing authority to amend. arguments presented, and prior Owners’’ in alphabetical order. The Copyright Royalty Judges shall The addition reads as follows: determinations and interpretations of retain continuing authority to amend a the Copyright Royalty Judges (to the determination of an Administrative § 370.1 General definitions. extent those prior determinations and Assessment to correct technical or * * * * * interpretations are not inconsistent with clerical errors, or modify the terms of Copyright Owners means sound a decision of the Register of Copyrights implementation, for good cause shown, recording copyright owners under 17 that was timely delivered to the with any amendment to be published in U.S.C. 101, and rights owners under 17 Copyright Royalty Judges pursuant to 17 the Federal Register. U.S.C. 1401(l)(2), who are entitled to U.S.C. 802(f)(1)(A) or (B), or with a royalty payments made pursuant to the decision of the Register of Copyrights § 355.7 Definitions. statutory licenses under 17 U.S.C. 112(e) made pursuant to 17 U.S.C. 802(f)(1)(D), Capitalized terms in this part that are and 114. or with a decision of the U.S. Court of defined terms in 17 U.S.C. 115(e) shall * * * * * Appeals for the D.C. Circuit). have the same meaning as set forth in (b) Timing. The Copyright Royalty 17 U.S.C. 115(e). In addition, for § 370.4 [Amended] Judges shall issue and cause their purposes of this part, the following ■ determination to be published in the 6. In § 370.4(b): definitions apply: ■ a. In the definition of ‘‘Aggregate Federal Register not later than one year Digital Licensee Coordinator shall Tuning Hours’’ remove ‘‘United States after commencement of the proceeding mean the entity the Register of copyright law’’ and add in its place under § 355.2(a) or, in a proceeding Copyrights designates as the Digital commenced under § 355.2(b), during ‘‘title 17, United States Code’’; and Licensee Coordinator pursuant to 17 ■ b. In paragraph (i) of the definition of June of the calendar year following the U.S.C. 115(d)(5)(B)(iii), or if the Register ‘‘Performance’’, remove ‘‘copyrighted’’ commencement of the proceeding. makes no such designation, interested and add in its place ‘‘subject to (c) Effectiveness. (1) The initial Digital Music Providers and Significant Administrative Assessment determined protection under title 17, United States Nonblanket Licensees representing more Code’’. in the proceeding under § 355.2(a) shall than half of the market for uses of be effective as of the License musical works in Covered Activities, SUBCHAPTER E—RATES AND TERMS FOR Availability Date and shall continue in acting collectively. STATUTORY LICENSES effect until the Copyright Royalty Judges Discoverable documents or deposition determine or approve an adjusted testimony are documents or deposition PART 380—RATES AND TERMS FOR Administrative Assessment under testimony that are: TRANSMISSIONS BY ELIGIBLE § 355.2(b). (1) Nonprivileged; NONSUBSCRIPTION SERVICES AND (2) Any adjusted Administrative (2) Relevant to consideration of NEW SUBSCRIPTION SERVICES AND Assessment determined in a proceeding whether a proposal or response thereto FOR THE MAKING OF EPHEMERAL under § 355.2(b) shall take effect January fulfills the requirements in 17 U.S.C. REPRODUCTIONS TO FACILITATE 1 of the year following its publication in 115(d)(7); and THOSE TRANSMISSIONS (3) Proportional to the needs of the the Federal Register. ■ (d) Adoption of voluntary agreements. proceeding, considering the importance 7. The authority citation for part 380 In lieu of reaching and publishing a of the issues at stake in the proceeding, continues to read: determination, the Copyright Royalty the requested participant’s relative Authority: 17 U.S.C. 112(e), 114(f), Judges shall approve and adopt the access to responsive information, the 804(b)(3). amount and terms of an Administrative participants’ resources, the importance ■ 8. In § 380.7: Assessment that has been negotiated of the document or deposition request ■ a. Add introductory text; and agreed to by the Mechanical in resolving or clarifying the issues ■ b. Revise the definition of ‘‘Copyright Licensing Collective and the Digital presented in the proceeding, and Owners’’ and Licensee Coordinator pursuant to whether the burden or expense of ■ c. In paragraph (1) of the definition of § 355.4. Notwithstanding the negotiation producing the requested document or ‘‘Performance’’ remove ‘‘copyrighted’’

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and add in its place ‘‘subject to ■ 12. In § 382.1, revise the definition of § 384.3 [Amended] protection under title 17, United States ‘‘Copyright Owners’’ to read as follows: ■ 19. In § 384.3: Code’’. ■ § 382.1 Definitions. a. In paragraph (a)(1), remove the The addition and revisions read as word ‘‘copyrighted’’ and add the phrase follows: * * * * * ‘‘subject to protection under title 17, Copyright Owners means sound § 380.7 Definitions. United States Code’’ after the word recording copyright owners, and rights ‘‘recordings’’; For purposes of this subpart, the owners under 17 U.S.C. 1401(l)(2), who ■ b. In paragraph (a)(2) introductory following definitions apply: are entitled to royalty payments made text: * * * * * under this part pursuant to the statutory ■ i. Remove the word ‘‘copyrighted’’ in Copyright Owners means sound licenses under 17 U.S.C. 112(e) and 114. the first sentence and add the phrase recording copyright owners, and rights * * * * * ‘‘subject to protection under title 17, owners under 17 U.S.C. 1401(l)(2), who United States Code,’’ after the word are entitled to royalty payments made § 382.20 [Amended] ‘‘recordings’’; and under this part pursuant to the statutory ■ 13. In § 382.20, remove the definition ■ ii. Remove the word ‘‘copyrighted’’ in licenses under 17 U.S.C. 112(e) and 114. of ‘‘Pre-1972 Recording’’. the second sentence and add the phrase * * * * * ‘‘subject to protection under title 17, ■ 9. In § 380.21: § 382.23 [Amended] United States Code,’’ after the word ■ a. In the definition of ‘‘ATH’’, remove ■ 14. In § 382.23, remove paragraphs ‘‘recordings’’; and ■ ‘‘United States copyright law’’ and add (a)(3) and (b) and redesignate paragraph c. In paragraphs (a)(2)(i) and (ii), in its place ‘‘title 17, United States (c) as paragraph (b). remove the word ‘‘copyrighted’’ each Code’’; and time it appears and add the phrase ■ b. Revise the definition of ‘‘Copyright PART 383—RATES AND TERMS FOR ‘‘subject to protection under title 17, Owners’’; and SUBSCRIPTION TRANSMISSIONS AND United States Code,’’ after the word ■ c. In paragraph (1) of the definition of THE REPRODUCTION OF ‘‘recordings’’ each time it appears. ‘‘Performance’’, remove ‘‘copyrighted’’ EMPHEMERAL RECORDINGS BY and add in its place ‘‘subject to CERTAIN NEW SUBSCRIPTION PART 385—RATES AND TERMS FOR protection under title 17, United States SERVICES USE OF NONDRAMATIC MUSICAL Code’’. WORKS IN THE MAKING AND The revision reads as follows: ■ 15. The authority citation for part 383 DISTRIBUTING OF PHYSICAL AND DIGITAL PHONORECORDS § 380.21 Definitions. continues to read as follows: * * * * * Authority: 17 U.S.C. 112(e), 114, and ■ 20. The authority citation for part 385 Copyright Owners are sound 801(b)(1). continues to read as follows: recording copyright owners, and rights ■ 16. In § 383.2, revise paragraph (b) to Authority: 17 U.S.C. 115, 801(b)(1), owners under 17 U.S.C. 1401(l)(2), who read as follows: 804(b)(4). are entitled to royalty payments made ■ under this subpart pursuant to the § 383.2 Definitions. 21. In § 385.2: ■ a. Add introductory text; statutory licenses under 17 U.S.C. 112(e) * * * * * ■ b. Revise the definitions of and 114(f). (b) Copyright Owner means a sound ‘‘Accounting Period’’ and ‘‘Affiliate’’; * * * * * recording copyright owner, or a rights ■ c. In the definition of ‘‘Bundled ■ 10. In § 380.31 revise the definition of owner under 17 U.S.C. 1401(l)(2), who Subscription Offering’’, add the term ‘‘Copyright Owners’’ to read as follows: is entitled to receive royalty payments ‘‘Eligible’’ before the term ‘‘Limited made under this part pursuant to the Downloads’’ and remove the comma at § 380.31 Definitions. statutory licenses under 17 U.S.C. 112(e) the end of the definition and add a * * * * * and 114. period in its place; Copyright Owners are Sound * * * * * ■ d. In the definition of ‘‘Digital Recording copyright owners, and rights Phonorecord Delivery’’ remove ‘‘or owners under 17 U.S.C. 1401(l)(2), who PART 384—RATES AND TERMS FOR DPD’’ and remove ‘‘17 U.S.C. 115(d)’’ are entitled to royalty payments made THE MAKING OF EPHEMERAL and add in its place ‘‘17 U.S.C. 115(e)’’; under this subpart pursuant to the RECORDINGS BY BUSINESS ■ e. Add definitions for ‘‘Eligible statutory licenses under 17 U.S.C. 112(e) ESTABLISHMENT SERVICES Interactive Stream’’ and ‘‘Eligible and 114(f). Limited Download’’ in alphabetical * * * * * ■ 17. The authority citation for part 384 order; continues to read as follows: ■ f. Revise the definition for ‘‘Free Trial PART 382—RATES AND TERMS FOR Authority: 17 U.S.C. 112(e), 801(b)(1). Offering’’; TRANSMISSIONS OF SOUND ■ g. Remove the definition of ■ RECORDINGS BY PREEXISTING 18. In § 384.2, revise the definition of ‘‘Interactive Stream’’; SUBSCRIPTION SERVICES AND ‘‘Copyright Owners’’ to read as follows: ■ h. In the definition for ‘‘Licensed PREEXISTING SATELLITE DIGITAL § 384.2 Definitions. Activity’’: AUDIO RADIO SERVICES AND FOR ■ i. Remove the word ‘‘Digital’’ between THE MAKING OF EPHEMERAL * * * * * the words ‘‘Permanent’’ and REPRODUCTIONS TO FACILITATE Copyright Owners are sound ‘‘Downloads’’; THOSE TRANSMISSIONS recording copyright owners, and rights ■ ii. Add the word ‘‘Eligible’’ before the owners under 17 U.S.C. 1401(l)(2), who term ‘‘Interactive Streams’’; and ■ 11. The authority citation for part 382 are entitled to royalty payments made ■ iii. Add the word ‘‘Eligible’’ before the continues to read as follows: under this part pursuant to the statutory term ‘‘Limited Downloads’’; Authority: 17 U.S.C. 112(e), 114 and license under 17 U.S.C. 112(e). ■ i. Remove the definition for ‘‘Limited 801(b)(1). * * * * * Download’’;

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■ j Revise the definition for ‘‘Limited Download’’ add in its place the term ‘‘an transmission (unless the Licensee, in Offering’’; Eligible Limited Download’’; lieu of retransmitting the same sound ■ k. In the definition for ‘‘Locker ■ w. Remove the definition of recording as another Eligible Limited Service’’: ‘‘Service’’; Download, separately, and upon ■ i. Add the term ‘‘Eligible’’ before the ■ x. Add the definitions for ‘‘Service specific request of the End User made term ‘‘Interactive Streams’’; Provider’’ and ‘‘Service Provider through a live network connection, ■ ii. Remove the term ‘‘Digital’’ between Revenue’’ in alphabetical order; reauthorizes use for another time period the terms ‘‘Permanent’’ and ■ y. Remove the definition for ‘‘Service not to exceed one month), or in the case ‘‘Downloads’’; and Revenue’’; of a subscription plan, a period of time ■ iii. Remove the term ‘‘the Service’’ ■ z. Add the definition for ‘‘Sound following the end of the applicable and add in its place ‘‘the Service Recording Company’’ in alphabetical subscription no longer than a Provider’’ each time it appears; and order; subscription renewal period or three ■ ■ iv. Remove the term ‘‘Service’s’’ and aa. In the definition of ‘‘Streaming months, whichever is shorter; or add in its place ‘‘Service Provider’s’’ Cache Reproduction’’ remove the term (2) A number of times not to exceed ■ l. In the definition of ‘‘Mixed Service ‘‘Service’’ and add in its place the term 12 (unless the Licensee, in lieu of Bundle’’: ‘‘Service Provider’’ each time it appears; retransmitting the same sound recording ■ i. Remove the term ‘‘Digital’’ between and as another Eligible Limited Download, ■ the terms ‘‘Permanent’’ and bb. In the definition of ‘‘Total Cost of separately, and upon specific request of ‘‘Downloads’’; and Content’’: ■ the End User made through a live ■ ii. Remove the term ‘‘a Service’’ and i. Remove the term ‘‘Service’’ and add network connection, reauthorizes use of add in its place ‘‘a Service Provider’’; in its place the term ‘‘Service Provider’’ another series of 12 or fewer plays), or ■ m. In the definition for ‘‘Music each time it appears; in the case of a subscription ■ ii. Remove the term ‘‘interactive Bundle’’: transmission, 12 times after the end of streams’’ and add in its place the term ■ i. Remove the term ‘‘Digital’’ between the applicable subscription. the words ‘‘Permanent’’ and ‘‘Eligible Interactive Streams’’; ■ iii. Remove the term ‘‘limited * * * * * ‘‘Downloads’’; downloads’’ and add in its place the Free Trial Offering means a ■ ii. Remove the term ‘‘Service’’ and add term ‘‘Eligible Limited Downloads’’; and subscription to a Service Provider’s in its place the term ‘‘Service Provider’’ ■ iv. Remove the terms ‘‘Record transmissions of sound recordings each time it appears; and Company’’ and ‘‘record company’’ and embodying musical works when: ■ iii. Remove the term ‘‘Record add in their place the term ‘‘Sound (1) Neither the Service Provider, the Company’’ and add in its place the term Recording Company’’ each time they Sound Recording Company, the ‘‘Sound Recording Company’’; appear. Copyright Owner, nor any person or ■ n. In the definition for ‘‘Offering’’ The additions and revisions read as entity acting on behalf of or in lieu of remove the term ‘‘Service’s’’ and add in follows: any of them receives any monetary its place the term ‘‘Service Provider’s’’; consideration for the Offering; ■ o. In the definition of ‘‘Paid Locker § 385.2 Definitions. (2) The free usage does not exceed 30 Service’’, remove the term ‘‘the Service’’ For the purposes of this part, the consecutive days per subscriber per and add in its place the term ‘‘the following definitions apply: two-year period; Service Provider’’; Accounting Period means the monthly (3) In connection with the Offering, ■ p. Remove the definition of period specified in 17 U.S.C. 115(c)(2)(I) the Service Provider is operating with ‘‘Permanent Digital Download’’; and in 17 U.S.C. 115(d)(4)(A)(i), and any appropriate musical license authority ■ q. Add a definition for ‘‘Permanent related regulations, as applicable. and complies with the recordkeeping Download’’ in alphabetical order; Affiliate means an entity controlling, requirements in § 385.4; ■ r. In the definition for ‘‘Play’’: controlled by, or under common control (4) Upon receipt by the Service ■ i. Add the term ‘‘Eligible’’ before the with another entity, except that an Provider of written notice from the term ‘‘Interactive Stream’’ each time it affiliate of a Sound Recording Company Copyright Owner or its agent stating in appears; and shall not include a Copyright Owner to good faith that the Service Provider is in ■ ii. Remove the term ‘‘a Limited the extent it is engaging in business as a material manner operating without Download’’ and add in its place the to musical works. appropriate license authority from the term ‘‘an Eligible Limited Download’’ * * * * * Copyright Owner under 17 U.S.C. 115, each time it appears; Eligible Interactive Stream means a the Service Provider shall within 5 ■ s. Revise the definitions for Stream in which the performance of the business days cease transmission of the ‘‘Promotional Offering’’ and ‘‘Purchased sound recording is not exempt from the sound recording embodying that Content Locker Service’’; sound recording performance royalty musical work and withdraw it from the ■ t. Remove the definition for ‘‘Record under 17 U.S.C. 114(d)(1) and does not repertoire available as part of a Free Company’’; in itself, or as a result of a program in Trial Offering; ■ u. In the definition of ‘‘Relevant which it is included, qualify for (5) The Free Trial Offering is made Page’’: statutory licensing under 17 U.S.C. available to the End User free of any ■ i. In the first sentence, remove the 114(d)(2). charge; and term ‘‘Service’s’’ and add in its place the Eligible Limited Download means a (6) The Service Provider offers the term ‘‘Service Provider’s’’ and add the transmission of a sound recording End User periodically during the free term ‘‘Eligible’’ before the term ‘‘Limited embodying a musical work to an End usage an opportunity to subscribe to a Downloads’’; and User of a digital phonorecord under 17 non-free Offering of the Service ■ ii. In the second sentence, add the U.S.C. 115(c)(3)(C) and (D) that results Provider. term ‘‘Eligible’’ before the term ‘‘Limited in a Digital Phonorecord Delivery of that * * * * * Download’’ and before the term sound recording that is only accessible Limited Offering means a subscription ‘‘Interactive Stream’’; for listening for— plan providing Eligible Interactive ■ v. In the definition of ‘‘Restricted (1) An amount of time not to exceed Streams or Eligible Limited Downloads Download’’ remove the term ‘‘a Limited one month from the time of the for which—

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(1) An End User cannot choose to (4) The Promotional Offering is made Service Provider means that entity listen to a particular sound recording available to an End User free of any governed by subparts C and D of this (i.e., the Service Provider does not charge; and part, which might or might not be the provide Eligible Interactive Streams of (5) The Service Provider provides to Licensee, that with respect to the individual recordings that are on- the End User at the same time as the section 115 license: demand, and Eligible Limited Promotional Offering stream an (1) Contracts with or has a direct Downloads are rendered only as part of opportunity to purchase the sound relationship with End Users or programs rather than as individual recording or the Service Provider otherwise controls the content made recordings that are on-demand); or periodically offers End Users the available to End Users; (2) The particular sound recordings opportunity to subscribe to a paid (2) Is able to report fully on Service available to the End User over a period Offering of the Service Provider. Provider Revenue from the provision of of time are substantially limited relative Purchased Content Locker Service musical works embodied in to Service Providers in the marketplace means a Locker Service made available phonorecords to the public, and to the providing access to a comprehensive to End User purchasers of Permanent extent applicable, verify Service catalog of recordings (e.g., a product Downloads, Ringtones, or physical Provider Revenue through an audit; and limited to a particular genre or phonorecords at no incremental charge (3) Is able to report fully on its usage permitting Eligible Interactive above the otherwise applicable purchase of musical works, or procure such Streaming only from a monthly playlist price of the Permanent Downloads, reporting and, to the extent applicable, consisting of a limited set of recordings). Ringtones, or physical phonorecords verify usage through an audit. * * * * * acquired from a qualifying seller. With Service Provider Revenue. (1) Subject a Purchased Content Locker Service, an Permanent Download has the same to paragraphs (2) through (5) of this End User may receive one or more meaning as in 17 U.S.C. 115(e). definition and subject to GAAP, Service additional phonorecords of the Provider Revenue shall mean: * * * * * purchased sound recordings of musical (i) All revenue from End Users Promotional Offering means a digital works in the form of Permanent recognized by a Service Provider for the transmission of a sound recording, in Downloads or Ringtones at the time of provision of any Offering; the form of an Eligible Interactive purchase, or subsequently have digital (ii) All revenue recognized by a Stream or an Eligible Limited access to the purchased sound Service Provider by way of sponsorship Download, embodying a musical work, recordings of musical works in the form and commissions as a result of the the primary purpose of which is to of Eligible Interactive Streams, inclusion of third-party ‘‘in-stream’’ or promote the sale or other paid use of additional Permanent Downloads, ‘‘in-download’’ advertising as part of that sound recording or to promote the Restricted Downloads, or Ringtones. any Offering, i.e., advertising placed artist performing on that sound (1) A qualifying seller for purposes of immediately at the start or end of, or recording and not to promote or suggest this definition is the entity operating the during the actual delivery of, a musical promotion or endorsement of any other Service Provider, including affiliates, work, by way of Eligible Interactive good or service and: predecessors, or successors in interest, Streaming or Eligible Limited (1) A Sound Recording Company is or— Downloads; and lawfully distributing the sound (i) In the case of Permanent (iii) All revenue recognized by the recording through established retail Downloads or Ringtones, a seller having Service Provider, including by way of channels or, if the sound recording is a legitimate connection to the locker sponsorship and commissions, as a not yet released, the Sound Recording service provider pursuant to one or result of the placement of third-party Company has a good faith intention to more written agreements (including that advertising on a Relevant Page of the lawfully distribute the sound recording the Purchased Content Locker Service Service Provider or on any page that or a different version of the sound and Permanent Downloads or Ringtones directly follows a Relevant Page leading recording embodying the same musical are offered through the same third up to and including the Eligible Limited work; party); or Download or Eligible Interactive Stream (2) For Eligible Interactive Streaming (ii) In the case of physical of a musical work; provided that, in case or Eligible Limited Downloads, the phonorecords: more than one Offering is available to Sound Recording Company requires a (A) The seller of the physical End Users from a Relevant Page, any writing signed by an authorized phonorecord has an agreement with the advertising revenue shall be allocated representative of the Service Provider Purchased Content Locker Service between or among the Service Providers representing that the Service Provider is provider establishing an integrated offer on the basis of the relative amounts of operating with appropriate musical that creates a consumer experience the page they occupy. works license authority and that the commensurate with having the same (2) Service Provider Revenue shall: Service Provider is in compliance with Service Provider both sell the physical (i) Include revenue recognized by the the recordkeeping requirements of phonorecord and offer the integrated Service Provider, or by any associate, § 385.4; locker service; or affiliate, agent, or representative of the (3) For Eligible Interactive Streaming (B) The Service Provider has an Service Provider in lieu of its being of segments of sound recordings not agreement with the entity offering the recognized by the Service Provider; and exceeding 90 seconds, the Sound Purchased Content Locker Service (ii) Include the value of any barter or Recording Company delivers or establishing an integrated offer that other nonmonetary consideration; and authorizes delivery of the segments for creates a consumer experience (iii) Except as expressly detailed in promotional purposes and neither the commensurate with having the same this part, not be subject to any other Service Provider nor the Sound Service Provider both sell the physical deduction or set-off other than refunds Recording Company creates or uses a phonorecord and offer the integrated to End Users for Offerings that the End segment of a sound recording in locker service. Users were unable to use because of violation of 17 U.S.C. 106(2) or (2) [Reserved] technical faults in the Offering or other 115(a)(2); * * * * * bona fide refunds or credits issued to

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End Users in the ordinary course of § 385.4 [Amended] ■ b. In paragraph (b)(4): business. ■ 23. In § 385.4: ■ i. Revise the second sentence; and (3) Service Provider Revenue shall ■ a. In paragraph (a), add the term ■ ii. Remove the phrase ‘‘methodology exclude revenue derived by the Service ‘‘Eligible’’ before each of the terms used by the Service for making royalty Provider solely in connection with ‘‘Interactive Streams’’ and ‘‘Limited payment allocations’’ and add in its activities other than Offering(s), whereas Downloads’’; and place ‘‘methodology used for making advertising or sponsorship revenue ■ b. In paragraph (b), remove the term royalty payment allocations’’; and derived in connection with any ‘‘Service’’ and add in its place the term ■ c. In paragraph (d): Offering(s) shall be treated as provided ‘‘Service Provider’’ each time it appears. ■ i. Remove ‘‘of the Licensee’’; ■ ii. Remove ‘‘17 U.S.C.115(c)(5)’’ and in paragraphs (2) and (4) of this ■ 24. Revise the heading for subpart B add in its place ‘‘17 U.S.C. 115(c)(2)(I), definition. to read as follows: (4) For purposes of paragraph (1) of 17 U.S.C. 115(d)(4)(A)(i),’’; and this definition, advertising or Subpart B—Physical Phonorecord ■ iii. Revise the second sentence. sponsorship revenue shall be reduced Deliveries, Permanent Downloads, The revision reads as follows: by the actual cost of obtaining that Ringtones, and Music Bundles § 385.21 Royalty rates and calculations. revenue, not to exceed 15%. (5) In instances in which a Service ■ 25. In § 385.11, revise paragraph (a) to * * * * * Provider provides an Offering to End read as follows: (b) * * * Users as part of the same transaction (4) * * * To determine this amount, with one or more other products or § 385.11 Royalty rates. the result determined in step 3 in services that are not Licensed Activities, (a) Physical phonorecord deliveries paragraph (b)(3) of this section must be then the revenue from End Users and Permanent Downloads. For every allocated to each musical work used deemed to be recognized by the Service physical phonorecord and Permanent through the Offering. * * * Provider for the Offering for the purpose Download the Licensee makes and * * * * * of paragraph (1) of this definition shall distributes or authorizes to be made and (d) * * * Without limitation, be the lesser of the revenue recognized distributed, the royalty rate payable for statements of account shall set forth from End Users for the bundle and the each work embodied in the phonorecord each step of the calculations with aggregate standalone published prices or Permanent Download shall be either sufficient information to allow the for End Users for each of the 9.1 cents or 1.75 cents per minute of assessment of the accuracy and manner component(s) of the bundle that are playing time or fraction thereof, in which the payable royalty pool and Licensed Activities; provided that, if whichever amount is larger. per-play allocations (including there is no standalone published price * * * * * information sufficient to demonstrate for a component of the bundle, then the ■ 26. Revise the heading for subpart C whether and how a royalty floor Service Provider shall use the average to read as follows: pursuant to § 385.22 does or does not standalone published price for End apply) were determined and, for each Users for the most closely comparable Subpart C—Eligible Interactive Offering reported, also indicate the type product or service in the U.S. or, if more Streaming, Eligible Limited of Licensed Activity involved and the than one comparable exists, the average Downloads, Limited Offerings, Mixed number of Plays of each musical work of standalone prices for comparables. Service Bundles, Bundled (including an indication of any overtime Sound Recording Company means a Subscription Offerings, Locker adjustment applied) that is the basis of person or entity that: Services, and Other Delivery the per-work royalty allocation being (1) Is a copyright owner of a sound Configurations paid. recording embodying a musical work; (2) In the case of a sound recording of ■ 27. Revise § 385.20 to read as follows: § 385.22 [Amended] a musical work fixed before February ■ 29. In § 385.22: 15, 1972, has rights to the sound § 385.20 Scope. ■ a. In paragraph (a)(1), add the term recording, under chapter 14 of title 17, This subpart establishes rates and ‘‘Eligible’’ before the term ‘‘Interactive United States Code, that are equivalent terms of royalty payments for Eligible Streams’’; to the rights of a copyright owner of a Interactive Streams and Eligible Limited ■ b. In paragraph (a)(2), add the term sound recording of a musical work Downloads of musical works, and other ‘‘Eligible’’ before the term ‘‘Interactive under title 17, United States Code; reproductions or distributions of Streams’’ and add the term ‘‘Eligible’’ (3) Is an exclusive Licensee of the musical works through Limited before the term ‘‘Limited Downloads’’ rights to reproduce and distribute a Offerings, Mixed Service Bundles, each time it appears; and sound recording of a musical work; or Bundled Subscription Offerings, Paid ■ c. In paragraph (a)(3), add the term (4) Performs the functions of Locker Services, and Purchased Content ‘‘Eligible’’ before the term ‘‘Interactive marketing and authorizing the Locker Services provided through Streams’’ and add the term ‘‘Eligible’’ distribution of a sound recording of a subscription and nonsubscription before the term ‘‘Limited Downloads’’. musical work under its own label, under digital music Service Providers in ■ 30. Revise § 385.30 to read as follows: the authority of the Copyright Owner of accordance with the provisions of 17 the sound recording. U.S.C. 115, exclusive of Offerings § 385.30 Scope. * * * * * subject to subpart D of this part. This subpart establishes rates and ■ 28. In § 385.21: terms of royalty payments for § 385.3 [Amended] ■ a. In paragraph (b): Promotional Offerings, Free Trial ■ 22. In § 385.3, remove the phrase ■ i. Remove the term ‘‘Service’’ each Offerings, and Certain Purchased ‘‘after the due date established in 17 time it appears and add in its place the Content Locker Services provided by U.S.C. 115(c)(5)’’ and add in its place term ‘‘Service Provider’’; and subscription and nonsubscription ‘‘after the due date established in 17 ■ ii. Remove the term ‘‘Service’s’’ and digital music Service Providers in U.S.C. 115(c)(2)(I) or 115(d)(4)(A)(i), as add in its place the term ‘‘Service accordance with the provisions of 17 applicable’’. Provider’s’’; U.S.C. 115.

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■ 31. In § 385.31, revise paragraphs (a) update to a size or weight limitation PART 3020—PRODUCT LISTS through (c) to read as follows: would impact competitors and users of the product(s). The Commission also ■ 1. The authority citation for part 3020 § 385.31 Royalty rates. proposed a requirement that the Postal continues to read as follows: (a) Promotional Offerings. For Service explain how a size and weight Authority: 39 U.S.C. 503, 3622, 3631, 3642, Promotional Offerings of audio-only limitation change is in accordance with 3682. Eligible Interactive Streaming and the policies and applicable criteria of ■ 2. Amend § 3020.111, by revising Eligible Limited Downloads of sound chapter 36 of title 39 of the United paragraph (a) to read as follows: recordings embodying musical works States Code. After consideration of the that the Sound Recording Company comments submitted, the Commission § 3020.111 Limitations applicable to authorizes royalty-free to the Service adopts final rules. market dominant mail matter. Provider, the royalty rate is zero. II. Basis and Purpose of the Final Rule (a) The Postal Service shall inform the (b) Free Trial Offerings. For Free Trial Commission of updates to size and Offerings for which the Service Provider The Commission initiated this weight limitations for market dominant receives no monetary consideration, the proceeding to evaluate whether changes mail matter by filing notice with the royalty rate is zero. to Mail Classification Schedule Commission 45 days prior to the (c) Certain Purchased Content Locker provisions that, in effect, add products effective date of the proposed update. Services. For every Purchased Content to, remove products from, or transfer The notice shall: Locker Service for which the Service products between product lists are (1) Include a copy of the applicable Provider receives no monetary changes that implicate the requirements sections of the Mail Classification consideration, the royalty rate is zero. of 39 U.S.C. 3642. The Commission Schedule and the proposed updates * * * * * sought comments from interested therein in legislative format; Dated: June 10, 2019. parties on whether it should update its (2) Describe the likely impact that the regulations to require information Jesse M. Feder, proposed update will have on users of pursuant to section 3642 when changes the product(s) and on competitors; and Chief United States Copyright Royalty Judge. to the size and weight limitations Approved by: (3) Describe how the proposed update appear to modify the product lists. is in accordance with the policies and Carla Hayden, After consideration of the comments the applicable criteria of chapter 36 of Librarian of Congress. submitted, the Commission finds that title 39 of the United States Code. [FR Doc. 2019–13292 Filed 7–5–19; 8:45 am] the amendments to 39 CFR 3020.111(a) * * * * * BILLING CODE 1410–72–P strike the appropriate balance between requiring additional information to By the Commission. adequately assess the potential effects of Ruth Ann Abrams, POSTAL REGULATORY COMMISSION a size and weight limitation change, Acting Secretary. without being unduly burdensome to [FR Doc. 2019–14275 Filed 7–5–19; 8:45 am] 39 CFR Part 3020 the Postal Service. Moreover, the BILLING CODE 7710–FW–P [Docket No. RM2019–3; Order No. 5140] Commission finds that the proposed amendments are sufficient for the Mail Classification Schedule Commission to analyze whether a ENVIRONMENTAL PROTECTION proposed size and weight limitation AGENCY AGENCY: Postal Regulatory Commission. change would involve unreasonable ACTION: Final rule. price increases, unreasonable 40 CFR Parts 52 and 81 discrimination, or any other material SUMMARY: The Commission adopts final harm to users and competitors. [EPA–R05–OAR–2018–0733; FRL–9996–11– rules that require the Postal Service to Although both the Greeting Card Region 5] provide additional information when it Association and the Association for proposes updates to the size and weight Postal Commerce expressed concern Air Plan Approval; Indiana; limitations applicable to market regarding the scope of the rules and Redesignation of the Terre Haute Area dominant mail matter. possible impacts on volume, both to Attainment of the 2010 Sulfur DATES: Effective: August 7, 2019. commenters noted that the Commission Dioxide Standard ADDRESSES: For additional information, could address those concerns via AGENCY: Environmental Protection Order No. 5140 can be accessed proposed sections 3020.111(a)(2) and Agency (EPA). (3). Accordingly, the Commission electronically through the Commission’s ACTION: Final rule. website at https://www.prc.gov. adopts the revisions to 39 CFR FOR FURTHER INFORMATION CONTACT: 3020.111(a). SUMMARY: In accordance with the Clean David A. Trissell, General Counsel, at Final Rules Air Act (CAA), the Environmental 202–789–6820. Protection Agency (EPA) is The Commission amends the rules for SUPPLEMENTARY INFORMATION: redesignating the Terre Haute, Indiana updating size and weight limitations in area from nonattainment to attainment Table of Contents 39 CFR part 3020. for the 2010 sulfur dioxide (SO2) I. Background List of Subjects for 39 CFR Part 3020 National Ambient Air Quality Standard II. Basis and Purpose of the Final Rule (NAAQS). The area consists of Fayette Administrative practice and and Harrison Townships in Vigo I. Background procedure, Postal Service. County, Indiana. EPA is also approving, On May 8, 2019, the Commission For the reasons stated in the as a revision to the Indiana State proposed changes to 39 CFR 3020.111(a) preamble, the Commission amends Implementation Plan (SIP), Indiana’s to include the requirement that the chapter III of title 39 of the Code of maintenance plan for this area. EPA Postal Service describe how a proposed Federal Regulations as follows: proposed to approve Indiana’s

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redesignation request and maintenance attainment of the SO2 NAAQS as rulemaking actions may become plan on May 3, 2019. expeditiously as practicable, but no later effective less than 30 days after DATES: This final rule is effective on July than October 4, 2018, which represents publication if the rule ‘‘grants or 8, 2019. five years after the area was originally recognizes an exemption or relieves a ADDRESSES: EPA has established a designated as nonattainment under the restriction,’’ and section 553(d)(3), docket for this action under Docket ID 2010 SO2 NAAQS. Indiana submitted its which allows an effective date less than No. EPA–R05–OAR–2018–0733. All attainment demonstration on October 2, 30 days after publication ‘‘as otherwise documents in the docket are listed on 2015. EPA approved the Terre Haute provided by the agency for good cause the www.regulations.gov website. attainment demonstration on March 22, found and published with the rule.’’ Although listed in the index, some 2019 (84 FR 10692). The purpose of the 30-day waiting information is not publicly available, Under CAA section 107(d)(3)(E), there period prescribed in section 553(d) is to i.e., Confidential Business Information are five criteria which must be met give affected parties a reasonable time to (CBI) or other information whose before a nonattainment area may be adjust their behavior and prepare before disclosure is restricted by statute. redesignated to attainment. The relevant the final rule takes effect. Today’s rule, Certain other material, such as NAAQS must be attained in the area; however, does not create any new the applicable implementation plan copyrighted material, is not placed on regulatory requirements such that must be fully approved by EPA under the internet and will be publicly affected parties would need time to section 110(k); the improvement in air available only in hard copy form. prepare before the rule takes effect. quality must be determined to be due to Publicly available docket materials are Rather, today’s rule relieves the state of permanent and enforceable reductions available either through planning requirements for this SO2 in emissions; the State must meet all www.regulations.gov or at the nonattainment area. For these reasons, applicable requirements for the area Environmental Protection Agency, EPA finds good cause under 5 U.S.C. under section 110 and part D; and EPA Region 5, Air and Radiation Division, 77 553(d)(3) for these actions to become must fully approve a maintenance plan West Jackson Boulevard, Chicago, effective on the date of publication of and contingency plan for the area under these actions. Illinois 60604. This facility is open from section 175A of the CAA. On May 3, 8:30 a.m. to 4:30 p.m., Monday through 2019 (84 FR 19007), EPA proposed to IV. Statutory and Executive Order Friday, excluding Federal holidays. find that these five criteria have been Reviews FOR FURTHER INFORMATION CONTACT: met for the Terre Haute nonattainment Under the CAA, redesignation of an Samantha Panock, Environmental area, and thus, EPA proposed to Scientist, Attainment Planning and area to attainment and the redesignate Terre Haute from accompanying approval of the Maintenance Section, Air Programs nonattainment to attainment of the 2010 Branch (AR18J), Environmental maintenance plan under CAA section SO2 NAAQS. Protection Agency, Region 5, 77 West 107(d)(3)(E) are actions that affect the Jackson Boulevard, Chicago, Illinois II. Public Comments status of the geographical area and do not impose any additional regulatory 60604, (312) 353–8973, EPA published its proposed approval requirements on sources beyond those [email protected]. of the redesignation request and required by state law. A redesignation to SUPPLEMENTARY INFORMATION: maintenance plan on May 3, 2019 (84 attainment does not in and of itself Throughout this document whenever FR 19007). The public comment period impose any new requirements, but ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean for this proposal closed on June 3, 2019. rather results in the application of EPA. This supplementary information EPA received one supportive comment. requirements contained in the CAA for section is arranged as follows: III. What action is EPA taking? areas that have been redesignated to I. Background attainment. Moreover, the Administrator II. Public Comments EPA is redesignating the Terre Haute nonattainment area from nonattainment is required to approve a SIP submission III. What action is EPA taking? that complies with the provisions of the IV. Statutory and Executive Order Reviews to attainment of the 2010 SO2 NAAQS. Indiana has demonstrated that the area CAA and applicable Federal regulations. I. Background 42 U.S.C. 7410(k); 40 CFR 52.02(a). is attaining the SO2 standard, and that On June 22, 2010 (75 FR 35520), EPA the improvement in air quality is due to Thus, in reviewing SIP submissions, EPA’s role is to approve state choices, published a revised primary SO2 permanent and enforceable SO2 NAAQS of 75 parts per billion (ppb), emission reductions in the provided that they meet the criteria of which is met at a monitoring site when nonattainment area. EPA is also the CAA. Accordingly, this action the 3-year average of the annual 99th approving, as a revision to the Indiana merely approves state law as meeting percentile of daily maximum 1-hour SIP, Indiana’s maintenance plan, which Federal requirements and does not concentrations does not exceed 75 ppb. is designed to ensure that the area will impose additional requirements beyond those imposed by state law. For that This NAAQS was codified at 40 CFR continue to maintain the SO2 standard 50.4. On July 25, 2013 (78 FR 47191), through the year 2030. reason, this action: EPA published its initial air quality In accordance with 5 U.S.C. 553(d), • Is not a significant regulatory action designations for the SO2 NAAQS based EPA finds there is good cause for these subject to review by the Office of upon air quality monitoring data for actions to become effective immediately Management and Budget under calendar years 2009–2011. In that upon publication. This is because a Executive Orders 12866 (58 FR 51735, action, the Terre Haute area, comprised delayed effective date is unnecessary October 4, 1993) and 13563 (76 FR 3821, of Fayette and Harrison Townships, was due to the nature of a redesignation to January 21, 2011); • designated nonattainment for the SO2 attainment, which relieves the area from Is not an Executive Order 13771 (82 NAAQS. certain CAA requirements that would FR 9339, February 2, 2017) regulatory Indiana was required to submit an otherwise apply to it. The immediate action because SIP approvals are attainment demonstration that meets the effective date for this action is exempted under Executive Order 12866; requirements of sections 172(c) and authorized under both 5 U.S.C. • Does not impose an information 191–192 of the CAA and provide for 553(d)(1), which provides that collection burden under the provisions

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of the Paperwork Reduction Act (44 Indian country, the rule does not have enforce its requirements. (See section U.S.C. 3501 et seq.); tribal implications and will not impose 307(b)(2).) • Is certified as not having a substantial direct costs on tribal List of Subjects significant economic impact on a governments or preempt tribal law as substantial number of small entities specified by Executive Order 13175 (65 40 CFR Part 52 under the Regulatory Flexibility Act (5 FR 67249, November 9, 2000). Environmental protection, Air U.S.C. 601 et seq.); The Congressional Review Act, 5 • pollution control, Incorporation by Does not contain any unfunded U.S.C. 801 et seq., as added by the Small reference, Intergovernmental relations, mandate or significantly or uniquely Business Regulatory Enforcement Reporting and recordkeeping affect small governments, as described Fairness Act of 1996, generally provides requirements, Sulfur oxides. in the Unfunded Mandates Reform Act that before a rule may take effect, the of 1995 (Pub. L. 104–4); • agency promulgating the rule must 40 CFR Part 81 Does not have Federalism submit a rule report, which includes a Environmental protection, Air implications as specified in Executive copy of the rule, to each House of the pollution control, National parks, Order 13132 (64 FR 43255, August 10, Congress and to the Comptroller General Wilderness areas. 1999); of the United States. EPA will submit a • Is not an economically significant report containing this action and other Dated: June 20, 2019. regulatory action based on health or required information to the U.S. Senate, Cheryl L. Newton, safety risks subject to Executive Order the U.S. House of Representatives, and Acting Regional Administrator, Region 5. 13045 (62 FR 19885, April 23, 1997); • Is not a significant regulatory action the Comptroller General of the United States prior to publication of the rule in 40 CFR parts 52 and 81 are amended subject to Executive Order 13211 (66 FR as follows: 28355, May 22, 2001); the Federal Register. A major rule • Is not subject to requirements of cannot take effect until 60 days after it PART 52—APPROVAL AND Section 12(d) of the National is published in the Federal Register. PROMULGATION OF Technology Transfer and Advancement This action is not a ‘‘major rule’’ as IMPLEMENTATION PLANS Act of 1995 (15 U.S.C. 272 note) because defined by 5 U.S.C. 804(2). application of those requirements would Under section 307(b)(1) of the CAA, ■ 1. The authority citation for part 52 be inconsistent with the CAA; and petitions for judicial review of this continues to read as follows: • Does not provide EPA with the action must be filed in the United States Authority: 42 U.S.C. 7401 et seq. discretionary authority to address, as Court of Appeals for the appropriate appropriate, disproportionate human circuit by September 6, 2019. Filing a ■ 2. In § 52.770, the table in paragraph health or environmental effects, using petition for reconsideration by the (e) is amended by adding an entry for practicable and legally permissible Administrator of this final rule does not ‘‘Terre Haute 2010 Sulfur Dioxide (SO2) methods, under Executive Order 12898 affect the finality of this action for the maintenance plan’’ after the entry (59 FR 7629, February 16, 1994). purposes of judicial review nor does it ‘‘Terre Haute Hydrocarbon Control In addition, the SIP is not approved extend the time within which a petition Strategy’’ to read as follows: to apply on any Indian reservation land for judicial review may be filed and or in any other area where EPA or an shall not postpone the effectiveness of § 52.1870 Identification of plan. Indian tribe has demonstrated that a such rule or action. This action may not * * * * * tribe has jurisdiction. In those areas of be challenged later in proceedings to (e) * * *

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title Indiana date EPA approval Explanation

******* Terre Haute 2010 Sulfur Dioxide (SO2) ...... 7/8/2019, [insert Federal Register cita- maintenance plan. tion].

*******

PART 81—DESIGNATION OF AREAS Authority: 42 U.S.C. 7401 et seq. Dioxide NAAQS (Primary)’’ to read as follows: FOR AIR QUALITY PLANNING ■ PURPOSES 4. Section 81.315 is amended by revising the entry ‘‘Terre Haute, IN’’ in § 81.315 Indiana. ■ 3. The authority citation for part 81 the table entitled ‘‘Indiana—2010 Sulfur * * * * * continues to read as follows:

INDIANA—2010 SULFUR DIOXIDE NAAQS [Primary]

Designation Designated area 13 Date 2 Type

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INDIANA—2010 SULFUR DIOXIDE NAAQS—Continued [Primary]

Designation Designated area 13 Date 2 Type

******* Terre Haute, IN ...... 7/8/2019 Attainment. Vigo County. Fayette Township, Harrison Township.

******* 1 Includes any Indian country in each county or area, unless otherwise specified. EPA is not determining the boundaries of any area of Indian country in this table, including any area of Indian country located in the larger designation area. The inclusion of any Indian country in the des- ignation area is not a determination that the state has regulatory authority under the Clean Air Act for such Indian country. 2 This date is April 9, 2018, unless otherwise noted. 3 Porter County will be designated by December 31, 2020.

* * * * * in the Environmental Protection Agency Office’s e-CFR site at http:// [FR Doc. 2019–14359 Filed 7–5–19; 8:45 am] Docket Center (EPA/DC), West William www.ecfr.gov/cgi-bin/text-idx? BILLING CODE 6560–50–P Jefferson Clinton Bldg., Rm. 3334, 1301 &c=ecfr&tpl=/ecfrbrowse/Title40/40tab_ Constitution Ave. NW, Washington, DC 02.tpl. 20460–0001. The Public Reading Room C. Can I file an objection or hearing ENVIRONMENTAL PROTECTION is open from 8:30 a.m. to 4:30 p.m., AGENCY Monday through Friday, excluding legal request? holidays. The telephone number for the Under FFDCA section 408(g), 21 40 CFR Part 180 Public Reading Room is (202) 566–1744, U.S.C. 346a, any person may file an [EPA–HQ–OPP–2019–0096; FRL–9995–17] and the telephone number for the OPP objection to any aspect of this regulation Docket is (703) 305–5805. Please review and may also request a hearing on those Acetic Acid Ethenyl Ester, Polymer the visitor instructions and additional objections. You must file your objection With Ethene and Ethenol; Tolerance information about the docket available or request a hearing on this regulation Exemption at http://www.epa.gov/dockets. in accordance with the instructions FOR FURTHER INFORMATION CONTACT: AGENCY: Environmental Protection provided in 40 CFR part 178. To ensure Agency (EPA). Michael Goodis, Registration Division proper receipt by EPA, you must (7505P), Office of Pesticide Programs, identify docket ID number EPA–HQ– ACTION: Final rule. Environmental Protection Agency, 1200 OPP–2019–0096 in the subject line on SUMMARY: This regulation establishes an Pennsylvania Ave. NW, Washington, DC the first page of your submission. All exemption from the requirement of a 20460–0001; main telephone number: objections and requests for a hearing tolerance for residues of acetic acid (703) 305–7090; email address: must be in writing, and must be ethenyl ester, polymer with ethene and [email protected]. received by the Hearing Clerk on or ethenol; when used as an inert SUPPLEMENTARY INFORMATION: before September 6, 2019. Addresses for ingredient in a pesticide chemical I. General Information mail and hand delivery of objections formulation. Keller and Heckman LLP. and hearing requests are provided in 40 on behalf of Kuraray American, Inc. A. Does this action apply to me? CFR 178.25(b). submitted a petition to EPA under the You may be potentially affected by In addition to filing an objection or Federal Food, Drug, and Cosmetic Act this action if you are an agricultural hearing request with the Hearing Clerk (FFDCA), requesting an exemption from producer, food manufacturer, or as described in 40 CFR part 178, please the requirement of a tolerance. This pesticide manufacturer. The following submit a copy of the filing (excluding regulation eliminates the need to list of North American Industrial any Confidential Business Information establish a maximum permissible level Classification System (NAICS) codes is (CBI)) for inclusion in the public docket. for residues of acetic acid ethenyl ester, not intended to be exhaustive, but rather Information not marked confidential polymer with ethene and ethenol on provides a guide to help readers pursuant to 40 CFR part 2 may be food or feed commodities. determine whether this document disclosed publicly by EPA without prior DATES: This regulation is effective July applies to them. Potentially affected notice. Submit the non-CBI copy of your 8, 2019. Objections and requests for entities may include: objection or hearing request, identified hearings must be received on or before • Crop production (NAICS code 111). by docket ID number EPA–HQ–OPP– • September 6, 2019, and must be filed in Animal production (NAICS code 2019–0096, by one of the following accordance with the instructions 112). methods. • Food manufacturing (NAICS code provided in 40 CFR part 178 (see also • Federal eRulemaking Portal: http:// Unit I.C. of the SUPPLEMENTARY 311). • Pesticide manufacturing (NAICS www.regulations.gov. Follow the online INFORMATION). code 32532). instructions for submitting comments. ADDRESSES: The docket for this action, Do not submit electronically any identified by docket identification (ID) B. How can I get electronic access to information you consider to be CBI or number EPA–HQ–OPP–2019–0096, is other related information? other information whose disclosure is available at http://www.regulations.gov You may access a frequently updated restricted by statute. or at the Office of Pesticide Programs electronic version of 40 CFR part 180 • Mail: OPP Docket, Environmental Regulatory Public Docket (OPP Docket) through the Government Printing Protection Agency Docket Center (EPA/

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DC), (28221T), 1200 Pennsylvania Ave. risks from aggregate exposure to Inventory or manufactured under an NW, Washington, DC 20460–0001. pesticide chemical residues under applicable TSCA section 5 exemption. • Hand Delivery: To make special reasonably foreseeable circumstances 6. The polymer is not a water arrangements for hand delivery or will pose no appreciable risks to human absorbing polymer with a number delivery of boxed information, please health. In order to determine the risks average molecular weight (MW) greater follow the instructions at http:// from aggregate exposure to pesticide than or equal to 10,000 daltons. www.epa.gov/dockets/contacts.html. inert ingredients, the Agency considers 7. The polymer does not contain Additional instructions on commenting the toxicity of the inert in conjunction certain perfluoroalkyl moieties or visiting the docket, along with more with possible exposure to residues of consisting of a CF3- or longer chain information about dockets generally, is the inert ingredient through food, length as listed in 40 CFR 723.250(d)(6). available at http://www.epa.gov/ drinking water, and through other Additionally, the polymer also meets as dockets. exposures that occur as a result of required the following exemption criteria specified in 40 CFR 723.250(e). II. Background and Statutory Findings pesticide use in residential settings. If EPA is able to determine that a finite The polymer’s number average MW of In the Federal Register of May 13, tolerance is not necessary to ensure that 20,000 daltons is greater than or equal 2019 (84 FR 20843) (FRL–9991–91), there is a reasonable certainty that no to 10,000 daltons. The polymer contains EPA issued a document pursuant to harm will result from aggregate less than 2% oligomeric material below FFDCA section 408, 21 U.S.C. 346a, exposure to the inert ingredient, an MW 500 and less than 5% oligomeric announcing the receipt of a pesticide exemption from the requirement of a material below MW 1,000. petition (PP IN–11251) filed by Keller tolerance may be established. Thus, acetic acid ethenyl ester, and Heckman LLP. on behalf of Kuraray Consistent with FFDCA section polymer with ethene and ethenol meets America, INC., 1001 G Street NW—Suite 408(b)(2)(D), EPA has reviewed the the criteria for a polymer to be 500 West, Washington, DC 20001. The available scientific data and other considered low risk under 40 CFR petition requested that 40 CFR 180.960 relevant information in support of this 723.250. Based on its conformance to be amended by establishing an action and considered its validity, the criteria in this unit, no mammalian exemption from the requirement of a completeness and reliability and the toxicity is anticipated from dietary, tolerance for residues of acetic acid relationship of this information to inhalation, or dermal exposure to acetic ethenyl ester, polymer with ethene and human risk. EPA has also considered acid ethenyl ester, polymer with ethene ethenol (CAS Reg. No. 26221–27–2). and ethenol. That document included a summary of available information concerning the the petition prepared by the petitioner variability of the sensitivities of major IV. Aggregate Exposures and solicited comments on the identifiable subgroups of consumers, For the purposes of assessing petitioner’s request. The Agency did not including infants and children. In the potential exposure under this receive any comments. case of certain chemical substances that exemption, EPA considered that acetic Section 408(c)(2)(A)(i) of FFDCA are defined as polymers, the Agency has acid ethenyl ester, polymer with ethene allows EPA to establish an exemption established a set of criteria to identify and ethenol could be present in all raw from the requirement for a tolerance (the categories of polymers expected to and processed agricultural commodities legal limit for a pesticide chemical present minimal or no risk. The and drinking water, and that non- residue in or on a food) only if EPA definition of a polymer is given in 40 occupational non-dietary exposure was determines that the exemption is ‘‘safe.’’ CFR 723.250(b) and the exclusion possible. The number average MW of Section 408(c)(2)(A)(ii) of FFDCA criteria for identifying these low-risk acetic acid ethenyl ester, polymer with defines ‘‘safe’’ to mean that ‘‘there is a polymers are described in 40 CFR ethene and ethenol is 20,000 daltons. reasonable certainty that no harm will 723.250(d). acetic acid ethenyl ester, Generally, a polymer of this size would result from aggregate exposure to the polymer with ethene and ethenol be poorly absorbed through the intact pesticide chemical residue, including conforms to the definition of a polymer gastrointestinal tract or through intact all anticipated dietary exposures and all given in 40 CFR 723.250(b) and meets human skin. Since acetic acid ethenyl other exposures for which there is the following criteria that are used to ester, polymer with ethene and ethenol reliable information.’’ This includes identify low-risk polymers. conform to the criteria that identify a exposure through drinking water and 1. The polymer is not a cationic low-risk polymer, there are no concerns use in residential settings, but does not polymer nor is it reasonably anticipated for risks associated with any potential include occupational exposure. Section to become a cationic polymer in a exposure scenarios that are reasonably 408(b)(2)(C) of FFDCA requires EPA to natural aquatic environment. foreseeable. The Agency has determined give special consideration to exposure 2. The polymer does contain as an that a tolerance is not necessary to of infants and children to the pesticide integral part of its composition at least protect the public health. chemical residue in establishing an two of the atomic elements carbon, V. Cumulative Effects From Substances exemption from the requirement of a hydrogen, nitrogen, oxygen, silicon, and With a Common Mechanism of Toxicity tolerance and to ‘‘ensure that there is a sulfur. reasonable certainty that no harm will 3. The polymer does not contain as an Section 408(b)(2)(D)(v) of FFDCA result to infants and children from integral part of its composition, except requires that, when considering whether aggregate exposure to the pesticide as impurities, any element other than to establish, modify, or revoke a chemical residue . . .’’ and specifies those listed in 40 CFR 723.250(d)(2)(ii). tolerance, the Agency consider factors EPA is to consider in 4. The polymer is neither designed ‘‘available information’’ concerning the establishing an exemption. nor can it be reasonably anticipated to cumulative effects of a particular substantially degrade, decompose, or pesticide’s residues and ‘‘other III. Risk Assessment and Statutory depolymerize. substances that have a common Findings 5. The polymer is manufactured or mechanism of toxicity.’’ EPA establishes exemptions from the imported from monomers and/or EPA has not found acetic acid ethenyl requirement of a tolerance only in those reactants that are already included on ester, polymer with ethene and ethenol cases where it can be shown that the the TSCA Chemical Substance to share a common mechanism of

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toxicity with any other substances, and and it is recognized as an international has determined that this action will not acetic acid ethenyl ester, polymer with food safety standards-setting have a substantial direct effect on States ethene and ethenol does not appear to organization in trade agreements to or tribal governments, on the produce a toxic metabolite produced by which the United States is a party. EPA relationship between the national other substances. For the purposes of may establish a tolerance that is government and the States or tribal this tolerance action, therefore, EPA has different from a Codex MRL; however, governments, or on the distribution of assumed that acetic acid ethenyl ester, FFDCA section 408(b)(4) requires that power and responsibilities among the polymer with ethene and ethenol does EPA explain the reasons for departing various levels of government or between not have a common mechanism of from the Codex level. the Federal Government and Indian toxicity with other substances. For The Codex has not established a MRL tribes. Thus, the Agency has determined information regarding EPA’s efforts to for acetic acid ethenyl ester, polymer that Executive Order 13132, entitled determine which chemicals have a with ethene and ethenol. ‘‘Federalism’’ (64 FR 43255, August 10, common mechanism of toxicity and to IX. Conclusion 1999) and Executive Order 13175, evaluate the cumulative effects of such entitled ‘‘Consultation and Coordination chemicals, see EPA’s website at http:// Accordingly, EPA finds that with Indian Tribal Governments’’ (65 FR www.epa.gov/pesticides/cumulative. exempting residues of acetic acid 67249, November 9, 2000) do not apply ethenyl ester, polymer with ethene and to this action. In addition, this action VI. Additional Safety Factor for the ethenol from the requirement of a Protection of Infants and Children does not impose any enforceable duty or tolerance will be safe. contain any unfunded mandate as Section 408(b)(2)(C) of FFDCA X. Statutory and Executive Order described under Title II of the Unfunded provides that EPA shall apply an Reviews Mandates Reform Act (UMRA) (2 U.S.C. additional tenfold margin of safety for 1501 et seq.). infants and children in the case of This action establishes a tolerance threshold effects to account for prenatal under FFDCA section 408(d) in This action does not involve any and postnatal toxicity and the response to a petition submitted to the technical standards that would require completeness of the data base unless Agency. The Office of Management and Agency consideration of voluntary EPA concludes that a different margin of Budget (OMB) has exempted these types consensus standards pursuant to section safety will be safe for infants and of actions from review under Executive 12(d) of the National Technology children. Due to the expected low Order 12866, entitled ‘‘Regulatory Transfer and Advancement Act toxicity of acetic acid ethenyl ester, Planning and Review’’ (58 FR 51735, (NTTAA) (15 U.S.C. 272 note). October 4, 1993). Because this action polymer with ethene and ethenol, EPA XI. Congressional Review Act has not used a safety factor analysis to has been exempted from review under assess the risk. For the same reasons the Executive Order 12866, this action is Pursuant to the Congressional Review additional tenfold safety factor is not subject to Executive Order 13211, Act (5 U.S.C. 801 et seq.), EPA will unnecessary. entitled ‘‘Actions Concerning submit a report containing this rule and Regulations That Significantly Affect other required information to the U.S. VII. Determination of Safety Energy Supply, Distribution, or Use’’ (66 Senate, the U.S. House of Based on the conformance to the FR 28355, May 22, 2001) or Executive Representatives, and the Comptroller criteria used to identify a low-risk Order 13045, entitled ‘‘Protection of General of the United States prior to polymer, EPA concludes that there is a Children from Environmental Health publication of the rule in the Federal reasonable certainty of no harm to the Risks and Safety Risks’’ (62 FR 19885, Register. This action is not a ‘‘major U.S. population, including infants and April 23, 1997). This action does not rule’’ as defined by 5 U.S.C. 804(2). children, from aggregate exposure to contain any information collections residues of acetic acid ethenyl ester, subject to OMB approval under the List of Subjects in 40 CFR Part 180 polymer with ethene and ethenol. Paperwork Reduction Act (PRA) (44 Environmental protection, VIII. Other Considerations U.S.C. 3501 et seq.), nor does it require Administrative practice and procedure, any special considerations under Agricultural commodities, Pesticides A. Analytical Enforcement Methodology Executive Order 12898, entitled and pests, Reporting and recordkeeping An analytical method is not required ‘‘Federal Actions to Address requirements. for enforcement purposes since the Environmental Justice in Minority Dated: June 27, 2019. Agency is establishing an exemption Populations and Low-Income from the requirement of a tolerance Populations’’ (59 FR 7629, February 16, Donna Davis, without any numerical limitation. 1994). Acting Director, Registration Division, Office Since tolerances and exemptions that of Pesticide Programs. B. International Residue Limits are established on the basis of a petition Therefore, 40 CFR chapter I is In making its tolerance decisions, EPA under FFDCA section 408(d), such as amended as follows: seeks to harmonize U.S. tolerances with the tolerance in this final rule, do not international standards whenever require the issuance of a proposed rule, PART 180—[AMENDED] possible, consistent with U.S. food the requirements of the Regulatory safety standards and agricultural Flexibility Act (RFA) (5 U.S.C. 601 et ■ 1. The authority citation for part 180 practices. EPA considers the seq.), do not apply. continues to read as follows: international maximum residue limits This action directly regulates growers, (MRLs) established by the Codex food processors, food handlers, and food Authority: 21 U.S.C. 321(q), 346a and 371. Alimentarius Commission (Codex), as retailers, not States or tribes, nor does ■ 2. In § 180.960, alphabetically add the required by FFDCA section 408(b)(4). this action alter the relationships or polymer to the table to read as follows: The Codex Alimentarius is a joint distribution of power and United Nations Food and Agriculture responsibilities established by Congress § 180.960 Polymers; exemptions from the Organization/World Health in the preemption provisions of FFDCA requirement of a tolerance. Organization food standards program, section 408(n)(4). As such, the Agency * * * * *

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Polymer CAS No.

******* Acetic acid ethenyl ester, polymer with ethene and ethenol, minimum number average molecular weight (in amu), 20,000 ...... 26221–27–2

*******

[FR Doc. 2019–14396 Filed 7–5–19; 8:45 am] Roadside Operations Division, Federal III. Legal Basis for the Rulemaking BILLING CODE 6560–50–P Motor Carrier Safety Administration, Congress has enacted several statutory 1200 New Jersey Avenue SE, provisions to ensure the safe Washington, DC 20590–0001 or by transportation of hazardous materials in DEPARTMENT OF TRANSPORTATION telephone at 202–366–9209. If you have interstate commerce. Specifically, in questions on viewing or submitting provisions codified at 49 U.S.C. 5105(d), Federal Motor Carrier Safety material to the docket, contact Docket relating to inspections of motor vehicles Administration Services, telephone (202) 366–9826. carrying certain hazardous material, and SUPPLEMENTARY INFORMATION: 49 U.S.C. 5109, relating to motor carrier 49 CFR Part 385 I. Rulemaking Documents safety permits, the Secretary of [Docket No. FMCSA–2018–0165] Transportation is required to A. Availability of Rulemaking RIN 2126–AC01 promulgate regulations as part of a Documents comprehensive safety program on Incorporation by Reference; North For access to docket FMCSA–2018– hazardous materials safety permits. The American Standard Out-of-Service 0165 to read background documents and FMCSA Administrator has been Criteria; Hazardous Materials Safety comments received, go to http:// delegated authority under 49 CFR Permits www.regulations.gov at any time, or to 1.87(d)(2) to carry out the rulemaking Docket Services at U.S. Department of functions vested in the Secretary of AGENCY: Federal Motor Carrier Safety Transportation, Room W12–140, 1200 Transportation. Consistent with that Administration (FMCSA), DOT. New Jersey Avenue SE, Washington, DC authority, FMCSA has promulgated ACTION: Final rule. 20590, between 9 a.m. and 5 p.m., regulations to address the congressional Monday through Friday, except Federal mandate on hazardous materials. Those SUMMARY: FMCSA amends its holidays. regulations on hazardous materials are Hazardous Materials Safety Permit the underlying provisions to which the regulations to incorporate by reference B. Privacy Act material incorporated by reference the April 1, 2018, edition of the In accordance with 5 U.S.C. 553(c), discussed in this final rule is applicable. Commercial Vehicle Safety Alliance’s DOT solicits comments from the public (CVSA) ‘‘North American Standard Out- IV. Background to better inform its rulemaking process. of-Service Criteria and Level VI DOT posts these comments, without In 1986, the U.S. Department of Inspection Procedures and Out-of- edit, including any personal information Energy (DOE) and CVSA entered into a Service Criteria for Commercial the commenter provides, to cooperative agreement to develop a Highway Vehicles Transporting www.regulations.gov, as described in higher level of inspection procedures, Transuranics and Highway Route the system of records notice (DOT/ALL– out-of-service conditions and/or criteria, Controlled Quantities of Radioactive 14 FDMS), which can be reviewed at an inspection decal, and a training and Materials as defined in 49 CFR part www.dot.gov/privacy. certification program for inspectors to 173.403.’’ The Out-of-Service Criteria conduct inspections on shipments of provide uniform enforcement tolerances II. Executive Summary transuranic waste and highway route for roadside inspections to enforcement This rulemaking updates an controlled quantities of radioactive personnel nationwide, including incorporation by reference found at 49 material. CVSA developed the North FMCSA’s State partners. CFR 385.4 and referenced at 49 CFR American Standard Level VI Inspection DATES: This final rule is effective July 8, 385.415(b). Section 385.4(b) currently Program for Transuranic Waste and 2019. The incorporation by reference of references the April 1, 2016, edition of Highway Route Controlled Quantities of certain publications listed in the CVSA’s ‘‘North American Standard Out- Radioactive Material. This inspection regulations is approved by the Director of-Service Criteria and Level VI program for select radiological of the Federal Register in accordance Inspection Procedures and Out-of- shipments includes inspection with 5 U.S.C. 552(a) and 1 CFR part 51 Service Criteria for Commercial procedures, enhancements to the North as of July 8, 2019. Highway Vehicles Transporting American Standard Level I Inspection, Petitions for Reconsideration of this Transuranics and Highway Route radiological surveys, CVSA Level VI final rule must be submitted to the Controlled Quantities of Radioactive decal requirements, and the ‘‘North FMCSA Administrator no later than Materials as defined in 49 CFR part American Standard Out-of-Service August 7, 2019. 173.403.’’ The Out-of-Service Criteria, Criteria and Level VI Inspection ADDRESSES: Petitions for reconsideration while not regulations, provide uniform Procedures and Out-of-Service Criteria must be written in English and mailed enforcement tolerances for roadside for Commercial Highway Vehicles or delivered to: Administrator, Federal inspections to enforcement personnel Transporting Transuranics and Highway Motor Carrier Safety Administration, nationwide, including FMCSA’s State Route Controlled Quantities of 1200 New Jersey Avenue SE, partners. In this final rule, FMCSA Radioactive Materials as defined in 49 Washington, DC 20590–0001. incorporates by reference the April 1, CFR part 173.403.’’ As of January 1, FOR FURTHER INFORMATION CONTACT: Mr. 2018, edition, which includes changes 2005, all vehicles and carriers Michael Huntley, Chief, Vehicle and adopted in the April 1, 2017 edition. transporting highway route controlled

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quantities of radioactive material are were performed annually, comprising Service Criteria and Level VI Inspection regulated by the U.S. Department of only 0.024 percent of all roadside Procedures and Out-of-Service Criteria Transportation. All highway route inspections. On average, out-of-service for Commercial Highway Vehicles controlled quantities of radioactive violations were cited in only 10 Level VI Transporting Transuranics and Highway material must pass the North American inspections annually (1.19 percent), Route Controlled Quantities of Standard Level VI Inspection prior to whereas on average, out-of-service Radioactive Materials as defined in 49 the shipment being allowed to travel in violations were cited in 269,024 Level I CFR part 173.403’’ is updated annually, the U.S. All highway route controlled inspections (25.3 percent), 266,122 and encouraged FMCSA to take the quantities of radioactive material Level II inspections (22.2 percent), and necessary action to update the shipments entering the U.S. must also 66,489 Level III inspections (6.2 regulations accordingly at that time. pass the North American Standard Level percent) annually. Based on these VI Inspection either at the shipment’s statistics, CMVs transporting VII. Section-by-Section Analysis point of origin or when the shipment transuranics and highway route FMCSA revises §§ 385.4 (a) and enters the U.S. controlled quantities of radioactive 385.415 (b) to conform to formatting Section 385.415 of title 49, Code of materials are clearly among the best requirements of the Office of the Federal Federal Regulations, prescribes maintained and safest CMVs on the Register; to update the reference in operational requirements for motor highways today, due largely to the § 385.4(b) from the April 1, 2016, carriers transporting hazardous enhanced oversight and inspection of edition to the April 1, 2018, edition of materials for which a hazardous these vehicles because of the sensitive the ‘‘North American Standard Out-of- materials safety permit is required. nature of the cargo being transported. Service Criteria and Level VI Inspection Section 385.415(b)(1) requires that V. Notice of Proposed Rulemaking Procedures and Out-of-Service Criteria motor carriers must ensure a pre-trip for Commercial Highway Vehicles inspection is performed on each motor FMCSA published a notice of Transporting Transuranics and Highway vehicle to be used to transport a proposed rulemaking (NPRM) on Route Controlled Quantities of highway route controlled quantity of a December 31, 2018 (83 FR 67705). Radioactive Materials as defined in 49 Class 7 (radioactive) material, in Whereas the incorporation by reference CFR part 173.403;’’ and to clarify that accordance with the requirements of found at 49 CFR 385.4 and referenced at copies are available to the public from CVSA’s ‘‘North American Standard Out- 49 CFR 385.415(b) references the April CVSA either through its website, or by of-Service Criteria and Level VI 1, 2016, edition of CVSA’s ‘‘North contacting CVSA at the address, and Inspection Procedures and Out-of- American Standard Out-of-Service phone number provided, and from Service Criteria for Commercial Criteria and Level VI Inspection additional sources of information Highway Vehicles Transporting Procedures and Out-of-Service Criteria associated with future incorporations by Transuranics and Highway Route for Commercial Highway Vehicles reference. Controlled Quantities of Radioactive Transporting Transuranics and Highway Materials as defined in 49 CFR part Route Controlled Quantities of VIII. International Impacts 173.403.’’ It is necessary to update the Radioactive Materials as defined in 49 The FMCSRs, and any exceptions to reference to ensure that motor carriers CFR part 173.403,’’ the NPRM proposed the FMCSRs, apply only within the and enforcement officials have to incorporate by reference the April 1, United States (and, in some cases, convenient access to the correctly 2018, edition, which also captures United States territories). Motor carriers identified inspection criteria that are changes adopted in the April 1, 2017 and drivers are subject to the laws and referenced in the rules. Copies of the edition. Cumulatively, 15 updates regulations of the countries in which reference are available to the public distinguish the April 1, 2018, edition they operate, unless an international from CVSA either through its website, from the 2016 edition. Each of the agreement states otherwise. Drivers and or by contacting CVSA at the address, changes was described and discussed in carriers should be aware of the and phone number provided, and from detail in the NPRM. Generally, the regulatory differences among nations. additional sources of information changes serve to clarify or provide The CVSA is an organization associated with future incorporations by additional guidance to inspectors representing Federal, State and reference. regarding uniform implementation and Provincial motor carrier safety According to 2012–2017 data from application of the out-of-service criteria, enforcement agencies in United States, FMCSA’s Motor Carrier Management and none is expected to affect the Canada and Mexico. The Out-of-Service Information System (MCMIS), number of out-of-service violations cited Criteria provide uniform enforcement approximately 3.5 million Level I–Level during Level VI inspections. The tolerances for roadside inspections VI roadside inspections were performed incorporation by reference of the 2018 conducted in all three countries. annually. Nearly 97 percent of these edition did not change what constitutes were Level I,1 Level II,2 and Level III 3 a violation of FMCSA regulations. IX. Regulatory Analyses inspections. During the same period, an VI. Discussion of Comments Received A. E.O. 12866 (Regulatory Planning and average of 842 Level VI inspections on the Proposed Rule Review), E.O. 13563 (Improving Regulation and Regulatory Review), and 1 FMCSA received one comment to the Level I is a 37-step inspection procedure that DOT Regulatory Policies and Procedures involves examination of the motor carrier’s and NPRM. The Commercial Vehicle Safety driver’s credentials, record of duty status, the Alliance (CVSA) commended FMCSA FMCSA has determined that this mechanical condition of the vehicle, and any hazardous materials/dangerous goods that may be for publishing the NPRM, and action is not a significant regulatory present. encouraged FMCSA to finalize the rule action under section 3(f) of E.O. 12866, 2 Level II is a driver and walk-around vehicle and update the incorporation by Regulatory Planning and Review, as inspection, involving the inspection of items that reference because ‘‘the current reference supplemented by E.O. 13563 (76 FR can be checked without physically getting under of the April 1, 2016 edition is outdated 3821, January 21, 2011), Improving the vehicle. 3 Level III is a driver-only inspection that and does not reflect the most up to date Regulation and Regulatory Review. includes examination of the driver’s credentials and standard.’’ In addition, CVSA noted that Accordingly, the Office of Management documents. the ‘‘North American Standard Out-of- and Budget (OMB) has not reviewed it

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under that Order. It is also not not have a significant economic impact G. E.O. 13132 (Federalism) on a substantial number of small significant within the meaning of DOT A rule has implications for federalism regulatory policies and procedures entities. under section 1(a) of Executive Order (DOT Order 2100.6 dated Dec. 20, 2018). D. Assistance for Small Entities 13132 if it has ‘‘substantial direct effects B. E.O. 13771 Reducing Regulation In accordance with section 213(a) of on the States, on the relationship and Controlling Regulatory Costs the Small Business Regulatory between the national government and E.O. 13771, ‘‘Reducing Regulation and Enforcement Fairness Act of 1996, the States, or on the distribution of Controlling Regulatory Costs,’’ does not FMCSA wants to assist small entities in power and responsibilities among the apply to this action because it is a understanding this rule so that they can various levels of government.’’ FMCSA nonsignificant regulatory action, as better evaluate its effects. If the rule will has determined that this rule will not defined in section 3(f) of E.O. 12866, affect your small business, organization, have substantial direct costs on or for and has zero costs; therefore, it is not or governmental jurisdiction and you States, nor will it limit the policymaking subject to the ‘‘2 for 1’’ and budgeting have questions concerning its discretion of States. Nothing in this requirements. provisions, please consult the FMCSA document preempts any State law or point of contact, Michael Huntley, listed regulation. Therefore, this rule does not C. Regulatory Flexibility Act in the FOR FURTHER INFORMATION have sufficient federalism implications The Regulatory Flexibility Act of 1980 CONTACT section of this rule. to warrant the preparation of a (RFA), Public Law 96–354, 94 Stat. 864 Small businesses may send comments Federalism Impact Statement. (1980), as amended by the Small on the actions of Federal employees H. E.O. 12988 (Civil Justice Reform) Business Regulatory Enforcement who enforce or otherwise determine Fairness Act of 1996 (SBREFA) (5 U.S.C. compliance with Federal regulations to This final rule meets applicable 601 et seq.), requires Federal agencies to the Small Business Administration’s standards in sections 3(a) and 3(b) (2) of consider the effects of the regulatory Small Business and Agriculture E.O. 12988, Civil Justice Reform, to action on small business and other Regulatory Enforcement Ombudsman minimize litigation, eliminate small entities and to minimize any and the Regional Small Business ambiguity, and reduce burden. significant economic impact. The term Regulatory Fairness Boards. The I. E.O. 13045 (Protection of Children) ‘‘small entities’’ comprises small Ombudsman evaluates these actions businesses and not-for-profit annually and rates each agency’s E.O. 13045, Protection of Children organizations that are independently responsiveness to small business. If you from Environmental Health Risks and owned and operated and are not wish to comment on actions by Safety Risks, requires agencies issuing dominant in their fields, and employees of FMCSA, call 1–888–REG– ‘‘economically significant’’ rules, if the governmental jurisdictions with FAIR (1–888–734–3247). DOT has a regulation also concerns an populations of less than 50,000.4 In policy regarding the rights of small environmental health or safety risk that compliance with the RFA, FMCSA entities to regulatory enforcement an agency has reason to believe may evaluated the effects of the proposed fairness and an explicit policy against disproportionately affect children, to rule on small entities. The rule retaliation for exercising these rights.5 include an evaluation of the regulation’s incorporates by reference the April 1, environmental health and safety effects 2018, edition of CVSA’s ‘‘North E. Unfunded Mandates Reform Act of on children. The Agency determined American Standard Out-of-Service 1995 this final rule is not economically Criteria and Level VI Inspection The Unfunded Mandates Reform Act significant. Therefore, no analysis of the Procedures and Out-of-Service Criteria of 1995 (2 U.S.C. 1531–1538) requires impacts on children is required. In any for Commercial Highway Vehicles Federal agencies to assess the effects of event, the Agency does not anticipate Transporting Transuranics and Highway their discretionary regulatory actions. that this regulatory action could in any Route Controlled Quantities of The Act addresses actions that may respect present an environmental or Radioactive Materials as defined in 49 result in the expenditure by a State, safety risk that could disproportionately CFR part 173.403.’’ DOT policy requires local, or tribal government, in the affect children. an analysis of the impact of all aggregate, or by the private sector, of J. E.O. 12630 (Taking of Private regulations on small entities, and $161 million (which is the value Property) mandates that agencies strive to lessen equivalent to $100,000,000 in 1995, any adverse effects on these entities. adjusted for inflation to 2017 levels) or FMCSA reviewed this final rule in When an Agency issues a rulemaking more in any one year. This final rule accordance with E.O. 12630, proposal, the RFA requires the Agency will not result in such an expenditure. Governmental Actions and Interference to ‘‘prepare and make available an with Constitutionally Protected Property F. Paperwork Reduction Act initial regulatory flexibility analysis’’ Rights, and has determined it will not that will describe the impact of the Under the Paperwork Reduction Act effect a taking of private property or proposed rule on small entities (5 U.S.C of 1995 (44 U.S.C. 3501 et seq.), Federal otherwise have taking implications. 603(a)). Section 605 of the RFA allows agencies must obtain approval from the K. Privacy Impact Assessment an agency to certify a rule, instead of OMB for each collection of information preparing an analysis, if the final rule is they conduct, sponsor, or require Section 522 of title I of division H of not expected to impact a substantial through regulations. FMCSA the Consolidated Appropriations Act, number of small entities. The final rule determined that no new information 2005, enacted December 8, 2004 (Pub. L. is largely editorial and provides collection requirements are associated 108–447, 118 Stat. 2809, 3268, 5 U.S.C. guidance to inspectors and motor with this final rule. 552a note), requires the Agency to carriers transporting transuranics in conduct a privacy impact assessment interstate commerce. Accordingly, I 5 U.S. Department of Transportation (DOT). ‘‘The (PIA) of a regulation that will affect the Rights of Small Entities to Enforcement Fairness hereby certify that this final rule will and Policy Against Retaliation.’’ Available at: privacy of individuals. This rule does https://www.transportation.gov/sites/dot.gov/files/ not require the collection of personally 4 5 U.S.C. 601. docs/SBREFAnotice2.pdf (accessed April 20, 2018). identifiable information (PII).

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The Privacy Act (5 U.S.C. 552a) explanation of why using these ■ 2. Revise § 385.4 to read as follows: applies only to Federal agencies and any standards would be inconsistent with non-Federal agency which receives applicable law or otherwise impractical. § 385.4 Matter incorporated by reference. records contained in a system of records Voluntary consensus standards (e.g., (a) Certain material is incorporated by from a Federal agency for use in a specifications of materials, performance, reference into this part with the matching program. design, or operation; test methods; approval of the Director of the Federal The E-Government Act of 2002, sampling procedures; and related Register under 5 U.S.C. 552(a) and 1 Public Law 107–347, section 208, 116 management systems practices) are CFR part 51. To enforce any edition Stat. 2899, 2921 (Dec. 17, 2002), standards that are developed or adopted other than that specified in this section, requires Federal agencies to conduct a by voluntary consensus standards FMCSA must publish notification of the PIA for new or substantially changed bodies. FMCSA does not intend to adopt change in the Federal Register and the technology that collects, maintains, or its own technical standard, thus there is material must be available to the public. disseminates information in an no need to submit a separate statement All approved material is available for identifiable form. No new or to OMB on this matter. The standard inspection at Federal Motor Carrier substantially changed technology will being incorporated in this final rule is Safety Administration, Office of collect, maintain, or disseminate discussed in greater detail in sections Enforcement and Compliance, 1200 information as a result of this rule. IV, V and VII above, and is reasonably New Jersey Ave. SE, Washington, DC Therefore, FMCSA has not conducted a available at FMCSA and through the 20590; Attention: Chief, Compliance PIA. CVSA website. Division at (202) 366–1812, and is L. E.O. 12372 (Intergovernmental P. Environment (NEPA) available from the sources listed in Review) paragraph (b) of this section. It is also FMCSA analyzed this rule consistent available for inspection at the National The regulations implementing E.O. with the National Environmental Policy Archives and Records Administration 12372 regarding intergovernmental Act of 1969 (42 U.S.C. 4321 et seq.) and (NARA). For information on the consultation on Federal programs and determined this action is categorically availability of this material at NARA, activities do not apply to this program. excluded from further analysis and call (202) 741–6030 or go to http:// M. E.O. 13211 (Energy Supply, documentation in an environmental www.archives.gov/federal-register/cfr/ Distribution, or Use) assessment or environmental impact ibr-locations.html. statement under FMCSA Order 5610.1 FMCSA has analyzed this final rule (69 FR 9680, March 1, 2004), Appendix (b) Commercial Vehicle Safety under E.O. 13211, Actions Concerning 2, paragraph (6)(b). The Categorical Alliance, 6303 Ivy Lane, Suite 310, Regulations That Significantly Affect Exclusion (CE) in paragraph 6.t.(2) Greenbelt, MD 20770, telephone (301) Energy Supply, Distribution, or Use. includes regulations to ensure that the 830–6143, www.cvsa.org. The Agency has determined that it is States comply with the provisions of the (1) ‘‘North American Standard Out-of- not a ‘‘significant energy action’’ under Commercial Motor Vehicle Safety Act of Service Criteria and Level VI Inspection that order because it is not a ‘‘significant 1986. The content in this rule is covered Procedures and Out-of-Service Criteria regulatory action’’ likely to have a by this CE, there are no extraordinary for Commercial Highway Vehicles significant adverse effect on the supply, circumstances present, and the final Transporting Transuranics and Highway distribution, or use of energy. Therefore, action does not have any effect on the Route Controlled Quantities of it does not require a Statement of Energy quality of the environment. The CE Radioactive Materials as defined in 49 Effects under E.O. 13211. determination is available for inspection CFR part 173.403,’’ April 1, 2018, N. E.O. 13175 (Indian Tribal or copying in the Regulations.gov incorporation by reference approved for Governments) website listed under ADDRESSES. § 385.415(b). This final rule does not have Tribal List of Subjects in 49 CFR Part 385 (2) [Reserved] implications under E.O. 13175, Administrative practice and ■ 3. In § 385.415, remove paragraph Consultation and Coordination with procedure, Highway safety, (b)(2), redesignate paragraph (b)(1) as Indian Tribal Governments, because it Incorporation by reference, Mexico, paragraph (b), and add a heading for does not have a substantial direct effect Motor carriers, Motor vehicle safety, newly redesignated paragraph (b) to on one or more Indian Tribes, on the Reporting and recordkeeping read as follows: relationship between the Federal requirements. Government and Indian Tribes, or on § 385.415 What operational requirements In consideration of the foregoing, the distribution of power and apply to the transportation of a hazardous FMCSA amends 49 CFR chapter III, part material for which a permit is required? responsibilities between the Federal 385, as set forth below: Government and Indian Tribes. * * * * * (b) Inspection of vehicle transporting O. National Technology Transfer and PART 385—SAFETY FITNESS Class 7 (radioactive) materials. *** Advancement Act (Technical PROCEDURES Standards) * * * * * ■ 1. The authority citation for part 385 Issued under authority delegated in 49 CFR The National Technology Transfer is revised to read as follows: and Advancement Act (15 U.S.C. 272 1.87 on June 27, 2019. Authority: 49 U.S.C. 113, 504, 521(b), Raymond P. Martinez, note) directs agencies to use voluntary 5105(d), 5109, 5113, 13901–13905, 13908, Administrator. consensus standards in their regulatory 31135, 31136, 31144, 31148, 31151 and activities unless the agency provides 31502; Sec. 350, Pub. L. 107–87, 115 Stat. [FR Doc. 2019–14226 Filed 7–5–19; 8:45 am] Congress, through OMB, with an 833, 864; and 49 CFR 1.87. BILLING CODE 4910–EX–P

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Proposed Rules Federal Register Vol. 84, No. 130

Monday, July 8, 2019

This section of the FEDERAL REGISTER available documents online in the Part 74—Material Control and contains notices to the public of the proposed ADAMS Public Documents collection at Accounting of Special Nuclear issuance of rules and regulations. The http://www.nrc.gov/reading-rm/ Material,’’ dated April 25, 2008 purpose of these notices is to give interested adams.html. To begin the search, select (ADAMS Accession No. ML080580307), persons an opportunity to participate in the ‘‘Begin Web-based ADAMS Search.’’ For the NRC staff provided the Commission rule making prior to the adoption of the final rules. problems with ADAMS, please contact with a range of options for amending the the NRC’s Public Document Room (PDR) MC&A regulations to provide a more reference staff at 1–800–397–4209, 301– risk-informed regulatory framework NUCLEAR REGULATORY 415–4737, or by email to pdr.resource@ commensurate with the post-September COMMISSION nrc.gov. The ADAMS accession number 11, 2001, threat environment. for each document referenced (if it is In the staff requirements 10 CFR Parts 40, 70, 72, 74, and 150 available in ADAMS) is provided the memorandum (SRM) for SECY–08– first time that it is mentioned in the 0059, dated February 5, 2009 (ADAMS [NRC–2009–0096] SUPPLEMENTARY INFORMATION section. Accession No. ML090360473), the RIN 3150–AI61 • NRC’s PDR: You may examine and Commission approved Option 4 of the purchase copies of public documents at rulemaking plan, which directed the Amendments to Material Control and the NRC’s PDR, Room O1–F21, One NRC staff to revise and consolidate the Accounting Regulations White Flint North, 11555 Rockville existing MC&A requirements into 10 Pike, Rockville, Maryland 20852. CFR part 74 in order to update, clarify, AGENCY: Nuclear Regulatory Commission. FOR FURTHER INFORMATION CONTACT: and strengthen the regulations. Thomas Young, Office of Nuclear ACTION: II. Discussion Discontinuation of rulemaking Material Safety and Safeguards, activity. telephone: 301–415–5795, email: On November 8, 2013, the NRC published a proposed rule and draft SUMMARY: The U.S. Nuclear Regulatory [email protected]; U.S. Nuclear Commission (NRC) is discontinuing a Regulatory Commission, Washington, regulatory guidance documents in the rulemaking activity that would have DC 20555–0001. Federal Register for public comment (78 consolidated and revised the material SUPPLEMENTARY INFORMATION: FR 67225; 78 FR 67224, respectively). The proposed rule would have added control and accounting requirements for I. Background special nuclear material. The purpose of new requirements for NRC licensees this action is to inform members of the The NRC ensures that its licensees authorized to possess SNM in a quantity public of the discontinuation of the control and account for special nuclear greater than 350 grams. Most of the rulemaking activity and to provide a material (SNM) through the provisions proposed rule requirements would have brief discussion of the NRC’s decision. that are currently in part 74 and several clarified existing language and The rulemaking activity will no longer sections of part 72 of title 10 of the Code consolidated MC&A requirements into be reported in the NRC’s portion of the of Federal Regulations (10 CFR). These 10 CFR part 74. Other proposed rule Unified Agenda of Regulatory and material control and accounting (MC&A) requirements were intended to Deregulatory Actions (the Unified regulations are intended to ensure that strengthen specific sections of the Agenda). the information about SNM is accurate, requirements for some types of facilities authentic, and sufficiently detailed to by providing: General performance DATES: As of July 8, 2019, the enable a licensee to maintain current objectives; item control system rulemaking activity discussed in this knowledge of its SNM and manage its requirements; the use of tamper-safing document is discontinued. program for securing and protecting procedures; and the designation of ADDRESSES: Please refer to Docket ID SNM from any loss, theft, diversion, or material balance areas, item control NRC–2009–0096 when contacting the misuse. The requirements for MC&A, areas, and material custodians. The NRC about the availability of together with those for physical proposed rule would have applied, to information for this action. You may protection of facilities and information different extents, to facilities licensed obtain publicly-available information security, make up the primary elements under 10 CFR parts 50, 52, 70, and 72. related to this action by any of the of the NRC’s SNM safeguards program. The NRC received 27 comment following methods: The MC&A component of the larger submissions from members of the • Federal Rulemaking website: Go to SNM safeguards program helps ensure nuclear industry, Agreement State http://www.regulations.gov and search that SNM is not stolen or otherwise organizations, and private citizens. for Docket ID NRC–2009–0096. Address diverted from the facility and supports Regarding the proposed rule, several questions about NRC dockets to Carol the NRC’s strategic goal of ensuring the commenters expressed concerns that Gallagher; telephone: 301–415–3463; secure use of radioactive materials. meeting the general performance email: [email protected]. For Following the events of September 11, objectives would require extensive technical questions, contact the 2001, the NRC completed a changes to existing MC&A programs and individual listed in the FOR FURTHER comprehensive review of its safeguards that the general performance objectives INFORMATION CONTACT section of this and security programs, including MC&A were in some cases too restrictive. document. requirements. Physical protection and Commenters also spoke to the proposed • NRC’s Agencywide Documents MC&A programs complement each other removal of some thresholds and Access and Management System in the safeguarding of nuclear materials. exemptions in the item control system (ADAMS): You may obtain publicly- In SECY–08–0059, ‘‘Rulemaking Plan: requirements and their perception that

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requirements for tamper-safing and for DEPARTMENT OF ENERGY ADDRESSES: Interested persons are material balance areas and item control encouraged to submit comments using areas were too far-reaching. In addition, 10 CFR Part 431 the Federal eRulemaking Portal at several commenters requested that the http://www.regulations.gov. Follow the NRC prepare a more complete [EERE–2018–BT–STD–0003] instructions for submitting comments. regulatory analysis and a backfit Alternatively, interested persons may RIN 1904–AE42 analysis. Several commenters provided submit comments, identified by docket input to improve the clarity and utility Energy Conservation Program: Energy number EERE–2018–BT–STD–0003, by of the draft associated regulatory Conservation Standards for Variable any of the following methods: guidance documents. Refrigerant Flow Multi-Split Air 1. Federal eRulemaking Portal: http:// In response to the public comments, Conditioners and Heat Pumps www.regulations.gov. Follow the the NRC issued a revised regulatory instructions for submitting comments. AGENCY: analysis (ADAMS Accession No. Office of Energy Efficiency and 2. Email: CommACHeating ML18061A055) and a backfit evaluation Renewable Energy, Department of [email protected]. (ADAMS Accession No. ML18061A058). Energy. Include the docket number EERE–2018– A full list of comments received, and ACTION: Notice of data availability and BT–STD–0003 in the subject line of the the NRC’s responses, is available in request for information. message. ADAMS under Accession No. 3. Postal Mail: Appliance and SUMMARY: The U.S. Department of ML18061A050. Equipment Standards Program, U.S. Energy (DOE) is publishing an analysis Department of Energy, Building In SECY–18–0104, ‘‘Draft Final Rule: of the energy savings potential of Technologies Office, Mailstop EE–5B, Amendments to Material Control and amended industry consensus standards Energy Conservation Standards NODA Accounting Regulations (RIN 3150– for certain classes of variable refrigerant and RFI for Certain Categories of Al61; NRC–2009–0096),’’ dated October flow multi-split air conditioners and Commercial Air-Conditioning and 15, 2018 (ADAMS Accession No. heat pumps (VRFs), which are a type of Heating Equipment, 1000 Independence ML18061A056), the staff requested commercial and industrial equipment. Avenue SW, Washington, DC 20585– Commission approval to publish the The Energy Policy and Conservation Act 0121. If possible, please submit all items final rule in the Federal Register. The of 1975, as amended (EPCA), requires on a compact disc (‘‘CD’’), in which case final rule would have included DOE to evaluate and assess whether it is not necessary to include printed revisions made to the proposed rule in there is a need to update its energy copies. response to public comments and conservation standards following 4. Hand Delivery/Courier: Appliance revisions to the six draft associated changes to the relevant industry and Equipment Standards Program, U.S. regulatory guidance documents to consensus standards in the American Department of Energy, Building reflect and explain the revised MC&A Society of Heating, Refrigerating and Technologies Office, 950 L’Enfant Plaza requirements in 10 CFR part 74. Air-Conditioning Engineers (ASHRAE) SW, 6th Floor, Washington, DC 20024. In SRM–SECY–18–0104, dated April Standard 90.1 (ASHRAE Standard 90.1), Telephone: (202) 287–1445. If possible, 3, 2019 (ADAMS Accession No. Additionally under EPCA, DOE must please submit all items on a CD, in ML19093B393), the Commission review its standards for this equipment which case it is not necessary to include disapproved the draft final rule and at least once every six years and publish printed copies. directed the staff to discontinue this either a notice of proposed rulemaking No telefacsimilies (faxes) will be rulemaking activity. (NOPR) to propose new standards for accepted. For detailed instructions on VRFs or a notice of determination that III. Conclusion submitting comments and additional the existing standards do not need to be information on the rulemaking process, The NRC is discontinuing this amended. Accordingly, DOE is also see section IV of this document (Public rulemaking activity for the reasons initiating an effort to determine whether Participation). discussed in this document. In the next to amend the current energy Docket: The docket for this activity, edition of the Unified Agenda, the NRC conservation standards for classes of which includes Federal Register will update the entry for this VRFs for which DOE has tentatively notices, comments, and other rulemaking activity and reference this determined that the ASHRAE Standard supporting documents/materials, is document to indicate that the 90.1 levels have not been updated to be available for review at http:// rulemaking activity is no longer being more stringent than the current Federal www.regulations.gov (search EERE– pursued. This rulemaking activity will standards. This document solicits 2018–BT–STD–0003). All documents in appear in the completed actions section information from the public to help the docket are listed in the http:// of that edition of the Unified Agenda DOE determine whether amended www.regulations.gov index. However, but will not appear in future editions. If standards for VRFs would result in some documents listed in the index, the NRC decides to pursue similar or significant energy savings and whether such as those containing information related rulemaking activities in the such standards would be that is exempt from public disclosure, future, it will inform the public through technologically feasible and may not be publicly available. new rulemaking entries in the Unified economically justified. DOE welcomes The docket web page can be found at: Agenda. written comments from the public on https://www.regulations.gov/docket? any subject within the scope of this D=EERE-2018-BT-STD-0003. The docket Dated at Rockville, Maryland, this 2nd day document (including topics not raised of July 2019. web page contains instructions on how in this document), as well as the to access all documents, including For the Nuclear Regulatory Commission. submission of data and other relevant public comments, in the docket. See Denise L. McGovern, information. section IV of this document, Public Acting Secretary of the Commission. DATES: Written comments and Participation, for information on how to [FR Doc. 2019–14478 Filed 7–5–19; 8:45 am] information are requested and will be submit comments through http:// BILLING CODE 7590–01–P accepted on or before August 22, 2019. www.regulations.gov.

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FOR FURTHER INFORMATION CONTACT: Ms. large, and very large commercial benefits, Congress further directed DOE Catherine Rivest, U.S. Department of package air conditioning and heating through EPCA to consider amending the Energy, Office of Energy Efficiency and equipment, which includes variable existing Federal energy conservation Renewable Energy, Building refrigerant flow multi-split air standard for each type of equipment Technologies Office, EE–5B, 1000 conditioners and heat pumps (VRF listed, each time ASHRAE amends Independence Avenue SW, Washington, multi-split systems),3 the subject of this Standard 90.1 with respect to such DC 20585–0121. Telephone: (202) 586– document. (42 U.S.C. 6311(1)(B)-(D)) equipment. (42 U.S.C. 6313(a)(6)(A)) 7335. Email: ApplianceStandards Pursuant to EPCA, DOE’s energy When triggered in this manner, DOE [email protected]. conservation program consists must undertake and publish an analysis Mr. Eric Stas, U.S. Department of essentially of four parts: (1) Testing, (2) of the energy savings potential of Energy, Office of the General Counsel, labeling, (3) Federal energy conservation amended energy efficiency standards, GC–33, 1000 Independence Avenue SW, standards, and (4) certification and and amend the Federal standards to Washington, DC 20585. Telephone: enforcement procedures. Relevant establish a uniform national standard at (202) 586–5827. Email: Eric.Stas@ provisions of the Act specifically the minimum level specified in the hq.doe.gov. include definitions (42 U.S.C. 6311), amended ASHRAE Standard 90.1, For further information on how to energy conservation standards (42 unless DOE determines that there is submit a comment or review other U.S.C. 6313), test procedures (42 U.S.C. clear and convincing evidence to public comments and the docket, 6314), labeling provisions (42 U.S.C. support a determination that a more- contact the Appliance and Equipment 6315), and the authority to require stringent standard level as a national Standards Program staff at (202) 287– information and reports from standard would produce significant 1445 or by email: manufacturers (42 U.S.C. 6316). additional energy savings and be ApplianceStandardsQuestions@ Federal energy efficiency technologically feasible and ee.doe.gov. requirements for covered equipment economically justified. (42 U.S.C. SUPPLEMENTARY INFORMATION: established under EPCA generally 6313(a)(6)(A)(ii)) If DOE decides to supersede State laws and regulations adopt as a national standard the Table of Contents concerning energy conservation testing, minimum efficiency levels specified in I. Introduction labeling, and standards. (42 U.S.C. the amended ASHRAE Standard 90.1, A. Authority 6316(a) and (b); 42 U.S.C. 6297) DOE DOE must establish such standard not B. Purpose of the Notice of Data may, however, grant waivers of Federal later than 18 months after publication of Availability preemption for particular State laws or the amended industry standard. (42 C. Rulemaking Background regulations, in accordance with the U.S.C. 6313(a)(6)(A)(ii)(I)) However, if II. Discussion of Changes in ASHRAE procedures and other provisions set DOE determines, supported by clear and Standard 90.1–2016 forth under 42 U.S.C. 6316(b)(2)(D). convincing evidence, that a more- A. Amendments to VRF Multi-Split System In EPCA, Congress initially set stringent uniform national standard Standards in ASHRAE Standard 90.1– would result in significant additional 2016 mandatory energy conservation B. Energy Savings Potential for Considered standards for certain types of conservation of energy and is Equipment Classes commercial heating, air-conditioning, technologically feasible and III. Consideration of More-Stringent and water-heating equipment. (42 U.S.C. economically justified, then DOE must Standards: Requested Information 6313(a)) Specifically, the statute sets establish such more-stringent uniform A. Rulemaking Process standards for small, large, and very large national standard not later than 30 B. Request for Information and Comment commercial package air-conditioning months after publication of the C. Other Energy Conservation Standards and heating equipment, packaged amended ASHRAE Standard 90.1.4 (42 Topics terminal air conditioners (PTACs) and U.S.C. 6313(a)(6)(A)(ii)(II) and (B)) 1. Market Failures Although EPCA does not explicitly 2. Network Mode/‘‘Smart’’ Equipment packaged terminal heat pumps (PTHPs), warm-air furnaces, packaged boilers, define the term ‘‘amended’’ in the 3. Other context of what type of revision to IV. Public Participation storage water heaters, instantaneous V. Approval of the Office of the Secretary water heaters, and unfired hot water ASHRAE Standard 90.1 would trigger storage tanks. Id. In doing so, EPCA I. Introduction established Federal energy conservation 4 In determining whether a more-stringent standard is economically justified, EPCA directs A. Authority standards at levels that generally DOE to determine, after receiving views and The Energy Policy and Conservation corresponded to the levels in American comments from the public, whether the benefits of the proposed standard exceed the burdens of the Act of 1975, as amended (‘‘EPCA’’; 42 Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) proposed standard by, to the maximum extent U.S.C. 6291 et seq.),1 established the practicable, considering the following: Energy Conservation Program for Standard 90.1, Energy Standard for (1) The economic impact of the standard on the Consumer Products Other Than Buildings Except Low-Rise Residential manufacturers and consumers of the products 2 Buildings, as in effect on October 24, subject to the standard; Automobiles. Title III, Part C of EPCA, (2) The savings in operating costs throughout the Public Law 94–163 (42 U.S.C. 6311– 1992 (i.e., ASHRAE Standard 90.1– 1989), for each type of covered estimated average life of the product compared to 6317, as codified), added by Public Law any increases in the initial cost or maintenance 95–619, Title IV, § 441(a), established equipment listed in 42 U.S.C. 6313(a). expense; In acknowledgement of technological the Energy Conservation Program for (3) The total projected amount of energy savings changes that yield energy efficiency likely to result directly from the standard; Certain Industrial Equipment. This (4) Any lessening of the utility or the performance covered equipment includes small, 3 Air-cooled, single-phase VRF multi-split air of the products likely to result from the standard; conditioners and heat pumps with cooling capacity (5) The impact of any lessening of competition, 1 All references to EPCA in this document refer less than 65,000 Btu/h are considered residential as determined in writing by the Attorney General, to the statute as amended through America’s Water central air conditioners and heat pumps and are that is likely to result from the standard; Infrastructure Act of 2018, Public Law 115–270 regulated under the energy conservation program (6) The need for national energy conservation; (Oct. 23, 2018). for consumer products. 10 CFR part 430, subpart B, and 2 For editorial reasons, upon codification in the appendices M and M1 and 10 CFR part 430, subpart (7) Other factors the Secretary considers relevant. U.S. Code, Part C was redesignated Part A–1. C. (42 U.S.C. 6313(a)(6)(B)(ii)).

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DOE’s obligation, DOE’s longstanding In addition, DOE has explained that 22, 2009); 80 FR 42614, 42617 (July 17, interpretation has been that the its authority to adopt an ASHRAE 2015). statutory trigger is an amendment to the amendment is limited based on the In those situations where ASHRAE standard applicable to that equipment definition of ‘‘energy conservation has not acted to amend the levels in under ASHRAE Standard 90.1 that standard.’’ 74 FR 36312, 36322 (July 22, Standard 90.1 for the equipment types increases the energy efficiency level for 2009). In general, an ‘‘energy enumerated in the statute, EPCA also that equipment. See 72 FR 10038, 10042 conservation standard’’ is limited, per provides for a 6-year-lookback to (March 7, 2007). In other words, if the the statutory definition, to either a consider the potential for amending the revised ASHRAE Standard 90.1 leaves performance standard or a design uniform national standards. (42 U.S.C. the energy efficiency level unchanged requirement. (42 U.S.C. 6311(18)) 6313(a)(6)(C)) Specifically, pursuant to (or lowers the energy efficiency level), Informed by the ‘‘energy conservation the amendments to EPCA under as compared to the energy efficiency standard’’ definition, DOE has stated AEMTCA, DOE is required to conduct level specified by the uniform national that adoption of an amendment to an evaluation of each class of covered standard adopted pursuant to EPCA, ASHRAE Standard 90.1 ‘‘that equipment in ASHRAE Standard 90.1 regardless of the other amendments establishes both a performance standard ‘‘every 6 years’’ to determine whether made to the ASHRAE Standard 90.1 and a design requirement is beyond the the applicable energy conservation requirement (e.g., the inclusion of an scope of DOE’s legal authority, as would standards need to be amended. (42 additional metric), DOE has stated that be a standard that included more than U.S.C. 6313(a)(6)(C)(i)) DOE must it does not have the authority to conduct one design requirement.’’ 74 FR 36312, publish either a notice of proposed a rulemaking to consider a higher 36322 (July 22, 2009). rulemaking (NOPR) to propose amended standard for that equipment pursuant to As noted, the ASHRAE Standard 90.1 standards or a notice of determination 42 U.S.C. 6313(a)(6)(A). See 74 FR provision in EPCA acknowledges that existing standards do not need to be 36312, 36313 (July 22, 2009) and 77 FR technological changes that yield energy amended. (42 U.S.C. 6313(a)(6)(C)) In 28928, 28937 (May 16, 2012). However, efficiency benefits, as well as continuing proposing new standards under the 6- DOE notes that Congress adopted development of industry standards and year review, DOE must undertake the amendments to these provisions related test methods. Amendments to a uniform same considerations as if it were to ASHRAE Standard 90.1 equipment national standard provide Federal adopting a standard that is more under the American Energy requirements that continue to reflect stringent than an amendment to Manufacturing Technical Corrections energy efficiency improvements ASHRAE Standard 90.1. (42 U.S.C. Act (Pub. L. 112–210 (Dec. 18, 2012); identified by industry. Amendments to 6313(a)(6)(C)(i)(II)) This is a separate ‘‘AEMTCA’’). In relevant part, DOE is a uniform national standard that reflect statutory review obligation, as prompted to act whenever ASHRAE the relevant amended versions of differentiated from the obligation Standard 90.1 is amended with respect ASHRAE Standard 90.1 would also help triggered by an ASHRAE Standard 90.1 amendment. While the statute continues to ‘‘the standard levels or design reduce compliance and test burdens on to defer to ASHRAE’s lead on covered requirements applicable under that manufacturers by harmonizing the equipment subject to Standard 90.1, it standard’’ to any of the enumerated Federal requirements, when does allow for a comprehensive review types of commercial air conditioning, appropriate, with industry best of all such equipment and the potential heating, or water heating equipment. (42 practices. This harmonization would be for adopting more-stringent standards, U.S.C. 6313(a)(6)(A)(i)) further facilitated by establishing not where supported by the requisite clear EPCA does not detail the exact type only consistent energy efficiency levels and convincing evidence. That is, DOE of amendment that serves as a triggering and design requirements between interprets ASHRAE’s not amending event. However, DOE has considered ASHRAE Standard 90.1 and the Federal whether its obligation is triggered in the Standard 90.1 with respect to a product requirements, but comparable metrics as or equipment type as ASHRAE’s context of whether the specific ASHRAE well. Standard 90.1 requirement on which the determination that the standard As stated previously, DOE has limited applicable to that product or equipment most current Federal requirement is its review under the ASHRAE Standard based is amended (i.e., the regulatory type is already at an appropriate level of 90.1 provisions in EPCA to the stringency, and DOE will not amend metric). For example, if an amendment equipment class that was subject to the to ASHRAE Standard 90.1 changed the that standard unless there is clear and ASHRAE Standard 90.1 amendment. convincing evidence that a more- metric for the standard on which the DOE has stated that if ASHRAE has not Federal requirement was based, DOE stringent level is justified. amended a standard for an equipment As a preliminary step in the process would perform a crosswalk analysis to class subject to 42 U.S.C. 6313, there is determine whether the amended metric of reviewing the changes to ASHRAE no change that would require action by Standard 90.1, EPCA directs DOE to under ASHRAE Standard 90.1 resulted DOE to consider amending the uniform in an energy efficiency level that was publish in the Federal Register for national standard to maintain public comment an analysis of the more stringent than the current DOE consistency with ASHRAE Standard standard. Conversely, if an amendment energy savings potential of amended 90.1. See, 72 FR 10038, 10042 (March 7, standards within 180 days after to ASHRAE Standard 90.1 were to add 2007); 77 FR 36312, 36320–36321 (July an additional metric by which a class of ASHRAE Standard 90.1 is amended equipment is to be evaluated, but did with respect to any of the covered VRF water-source heat pumps with cooling capacity equipment specified under 42 U.S.C. not amend the requirement that is in less than 17,000 Btu/h, in which DOE states that ‘‘if terms of the metric on which the 6313(a). (42 U.S.C. 6313(a)(6)(A)) the revised ASHRAE Standard 90.1 leaves the On October 26, 2016, ASHRAE Federal requirement was based, DOE standard level unchanged or lowers the standard, as officially released for distribution and would not consider its obligation compared to the level specified by the national standard adopted pursuant to EPCA, DOE does not made public ASHRAE Standard 90.1– triggered.5 have the authority to conduct a rulemaking to 2016. This action by ASHRAE triggered consider a higher standard for that equipment 5 See the May 16, 2012, final rule for small, large, pursuant to 42 U.S.C. 6313(a)(6)(A). 77 FR 28928, DOE’s obligations under 42 U.S.C. and very large water-cooled and evaporatively- 28929 (emphasis added). See also, 74 FR 36312, 6313(a)(6), as outlined previously. This cooled commercial package air conditioners, and 36313 (July 22, 2009). notice of data availability (NODA)

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presents the analysis of the energy under 42 U.S.C. 6313(a)(6)(C). After C. Rulemaking Background savings potential of amended energy review of the public comments on this DOE’s energy conservation standards efficiency standards, as required under NODA, if DOE determines that the for VRF multi-split systems are codified 42 U.S.C. 6313(a)(6)(A)(i). DOE is also amended efficiency levels in ASHRAE at 10 CFR 431.97. DOE defines ‘‘variable taking this opportunity to collect data Standard 90.1–2016 increase the energy refrigerant flow multi-split air and information regarding other VRF efficiency level for an equipment class conditioner’’ as a unit of commercial equipment classes for which it was not within a given equipment category package air-conditioning and heating triggered but for which DOE plans to currently covered by uniform national equipment that is configured as a split conduct a concurrent 6-year-lookback standards, DOE will commence a system air conditioner incorporating a review. (42 U.S.C. 6313(a)(6)(C)) Such rulemaking to amend standards based single refrigerant circuit, with one or information will help DOE inform its upon the efficiency levels in ASHRAE more outdoor units, at least one decisions, consistent with its obligations Standard 90.1–2016 or, where variable-speed compressor or an under EPCA. supported by clear and convincing alternate compressor combination for B. Purpose of the Notice of Data evidence, consider more-stringent varying the capacity of the system by Availability efficiency levels that would be expected three or more steps, and multiple indoor fan coil units, each of which is As explained previously, DOE is to result in significant additional individually metered and individually publishing this NODA as a preliminary conservation of energy and are controlled by an integral control device step pursuant to EPCA’s requirements technologically feasible and and common communications network for DOE to consider amended standards economically justified. If DOE and which can operate independently in for certain categories of commercial determines it appropriate to conduct a response to multiple indoor thermostats. equipment covered by ASHRAE rulemaking to establish more-stringent Variable refrigerant flow implies three Standard 90.1, whenever ASHRAE efficiency levels under the statute, DOE or more steps of capacity control on amends its standard to increase the will address the general rulemaking common, inter-connecting piping. 10 energy efficiency level for an equipment requirements applicable under 42 U.S.C. CFR 431.92. DOE defines ‘‘variable class within a given equipment 6313(a)(6)(B), such as the anti- refrigerant flow multi-split heat pump’’ category. Specifically, this NODA backsliding provision,6 the criteria for similarly, but with the addition that it presents for public comment DOE’s making a determination of economic uses reverse cycle refrigeration as its analysis of the potential energy savings justification as to whether the benefits primary heating source and that it may for amended national energy of the proposed standard exceed the include secondary supplemental heating conservation standards for VRF multi 7 burden of the proposed standard, and by means of electrical resistance, steam, split systems based on: (1) The amended the prohibition on making unavailable hot water, or gas. Id. efficiency levels contained within existing products with performance DOE’s regulations include test ASHRAE Standard 90.1–2016, and (2) characteristics generally available in the procedures and energy conservation more-stringent efficiency levels. DOE United States.8 standards that apply to air-cooled VRF describes these analyses and multi-split air conditioners, air-cooled preliminary conclusions and seeks 6 The anti-backsliding provision mandates that VRF multi-split heat pumps, and water- input from interested parties, including the Secretary may not prescribe any amended source VRF multi-split heat pumps, the submission of data and other standard that either increases the maximum allowable energy use or decreases the minimum with cooling capacity less than 760,000 relevant information. DOE is also taking Btu/h, except air-cooled, single-phase the opportunity to consider the required energy efficiency of a covered product. (42 U.S.C. 6313 (a)(6)(B)(iii)(I)) VRF multi-split air conditioners and potential for more-stringent standards 7 In deciding whether a potential standard’s heat pumps with cooling capacity less for the other equipment classes of the benefits outweigh its burdens, DOE must consider than 65,000 Btu/h.9 10 CFR 431.96 and subject equipment category (i.e., where to the maximum extent practicable, the following seven factors: 10 CFR 431.97. The energy conservation DOE was not triggered) under EPCA’s 6- standards for VRF multi-split systems year-lookback authority. (1) The economic impact on manufacturers and consumers of the product subject to the standard; were most recently amended through DOE carefully examined the changes (2) The savings in operating costs throughout the the final rule for energy conservation for equipment in ASHRAE Standard estimated average life of the product in the type (or standards and test procedures for 90.1 in order to thoroughly evaluate the class), compared to any increase in the price, initial certain commercial equipment amendments in ASHRAE 90.1–2016, charges, or maintenance expenses of the products published on May 16, 2012 (‘‘May 2012 thereby permitting DOE to determine likely to result from the standard; (3) The total projected amount of energy savings final rule’’). 77 FR 28928. The May 2012 what action, if any, is required under its likely to result directly from the standard; final rule established separate statutory mandate. DOE also will (4) Any lessening of product utility or equipment classes for VRF multi-split carefully examine the energy savings performance of the product likely to result from the systems and adopted energy potential for other equipment classes standard; conservation standards that generally where it was not triggered, so as to (5) The impact of any lessening of competition, correspond to the levels in the 2010 conduct a thorough review for an entire as determined in writing by the Attorney General, likely to result from the standard; revision of ASHRAE Standard 90.1 for equipment category. Section II of this (6) The need for national energy conservation; most of the equipment classes. 77 FR NODA contains that evaluation, and and 28928, 28995 (May 16, 2012). section III of this NODA discusses the (7) Other factors the Secretary considers relevant. DOE’s test procedure for VRF multi- (42 U.S.C. 6313(a)(6)(B)(ii)(I)–(VII)) possibility of more-stringent standards split systems is codified at 10 CFR for those equipment classes where DOE 8 The Secretary may not prescribe an amended standard if interested persons have established by was not triggered by ASHRAE action. a preponderance of evidence that the amended 9 Air-cooled, single-phase VRF multi-split air In summary, the energy savings standard would likely result in unavailability in the conditioners and heat pumps with cooling capacity analysis presented in this NODA is a U.S. of any covered product type (or class) of less than 65,000 Btu/h are considered residential preliminary step required under 42 performance characteristics (including reliability, central air conditioners and heat pumps and are features, capacities, sizes, and volumes) that are regulated under the energy conservation program U.S.C. 6313(a)(6)(A)(i). DOE is also substantially the same as those generally available for consumer products. 10 CFR part 430, subpart B, treating it as an opportunity to gather in the U.S. at the time of the Secretary’s finding. appendices M and M1 and 10 CFR part 430, subpart information regarding its obligations (42 U.S.C. 6313(a)(6)(B)(iii)(II)) C.

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431.96 and was established in the May conservation standards applicable to reflect congressional intent. 83 FR 2012 final rule. 77 FR 28928, 28990– VRFs do not use IEER as their regulatory 15514 (April 11, 2018). The Working 28991 (May 16, 2012). DOE’s current metric. Group has held a number of meetings. regulations require that manufacturers On October 26, 2016, ASHRAE Public meeting dates and information test VRF multi-split systems using officially released for distribution and are located on the Variable Refrigerant American National Standards Institute made public ASHRAE Standard 90.1– Flow Multi-Split Air Conditioners and (ANSI)/Air-Conditioning, Heating, and 2016. ASHRAE Standard 90.1–2016 Heat Pumps rulemaking web page 14 and Refrigeration Institute (AHRI) Standard revised the efficiency levels for certain all related notices, public comments, 1230–2010 with Addendum 1, commercial equipment, including public meeting transcripts, and Performance Rating of Variable certain classes of VRF multi-split supporting documents are available in Refrigerant Flow (VRF) Multi-Split Air- systems (as discussed in the following the associated docket.15 Conditioning and Heat Pump section).11 For the remaining Equipment (AHRI 1230–2010), except equipment, ASHRAE left in place the II. Discussion of Changes in ASHRAE for sections 5.1.2 and 6.6. DOE’s current preexisting levels (i.e., the efficiency Standard 90.1–2016 test procedure also requires that levels specified in EPCA or the A. Amendments to VRF Multi-Split manufacturers adhere to additional efficiency levels in ASHRAE Standard System Standards in ASHRAE Standard requirements listed in 10 CFR 90.1–2013). ASHRAE Standard 90.1– 90.1–2016 431.96(c)–(f) pertaining to compressor 2016 did not change any of the design break-in period and equipment set-up requirements for the commercial As noted, ASHRAE Standard 90.1– for testing, including requirements for heating, air conditioning, and water- 2016 revised the efficiency levels for refrigerant charging, refrigerant line heating equipment covered by EPCA. certain commercial equipment, but for length, air flow rate, and compressor On April 11, 2018, DOE published in the remaining equipment, ASHRAE left speed, when measuring the energy the Federal Register a notice of its in place the preexisting levels. DOE has efficiency ratio (EER) and coefficient of intent to establish a negotiated determined that ASHRAE 90.1–2016 performance (COP) for air-cooled VRF rulemaking working group (Working increased the efficiency level for six of multi-split systems with a cooling Group) under the Appliance Standards the 20 DOE VRF multi-split system capacity between 65,000 Btu/h and and Rulemaking Federal Advisory equipment classes. Table II.I shows the 760,000 Btu/h and water-source VRF Committee (ASRAC), in accordance VRF multi-split system equipment multi-split systems with a cooling with the Federal Advisory Committee classes provided in ASHRAE Standard 12 capacity less than 760,000 Btu/h, and Act (FACA ) and the Negotiated 90.1–2016 and the corresponding 13 when measuring the seasonal energy Rulemaking Act (NRA ), to negotiate efficiency levels in ASHRAE Standard efficiency ratio (SEER) and heating proposed test procedures and amended 90.1–2013 and in ASHRAE Standard seasonal performance factor (HSPF) for energy conservation standards for VRF 90.1–2016. Table II.I also displays the three-phase air-cooled VRF multi-split multi-split systems. 83 FR 15514. The existing Federal energy conservation systems with a cooling capacity less purpose of the Working Group is to standards for those equipment classes than 65,000 Btu/h, and when certifying discuss and, if possible, reach and indicates whether the update in that equipment is compliant with the consensus on a proposed rule regarding ASHRAE Standard 90.1–2016 triggers applicable standard. test procedures and energy conservation DOE evaluation as required under EPCA On May 27, 2015, the ASHRAE standards for VRF multi-split systems, (i.e., whether the update results in a Standards Committee approved as authorized by EPCA. 83 FR 15514 standard level more stringent than the Addendum n to ASHRAE Standard (April 11, 2018). DOE explained that the current Federal level). (As discussed in 90.1–2013, which raised the minimum primary reason for using the negotiated the following paragraphs, DOE’s integrated energy efficiency ratio rulemaking process for this equipment standards disaggregate VRF multi-split (IEER 10) for air-cooled VRF multi-split is that stakeholders strongly support a systems into 20 equipment classes, systems, effective January 1, 2017. consensual rulemaking effort and that whereas ASHRAE Standard 90.1 has 22 Subsequently, ASHRAE proposed such a regulatory negotiation process classes.) The remainder of this section Addendum bs to ASHRAE Standard will be less adversarial and better suited assesses each of these equipment classes 90.1–2013, which would raise the to resolving complex technical issues. and describes whether the amendments minimum IEER and the minimum COP 83 FR 15514 (April 11, 2018). DOE in ASHRAE Standard 90.1–2016 for water-source VRF multi-split further stated that an important virtue of constitute increased energy efficiency systems, effective January 1, 2018. Both negotiated rulemaking is that it allows levels, which would necessitate further of these addenda are incorporated into expert dialog that is much better than analysis of the potential energy savings ASHRAE Standard 90.1–2016. However, traditional techniques at getting the from corresponding amendments to the at the current time, the Federal energy facts and issues right and will result in Federal energy conservation standards. a proposed rule that will effectively The conclusions of this assessment are 10 Integrated energy efficiency ratio (IEER) factors presented in the last column of Table II.I 11 in the efficiency of operating at part-load conditions ASHRAE Standard 90.1–2016 also revised of this document. of 75-percent, 50-percent, and 25-percent of standards for certain classes of computer room air capacity, as well as the efficiency at full-load. The conditioners (CRACs) and established new IEER metric is intended to provide a more standards for dedicated outdoor air systems 14 Available at: https://www1.eere.energy.gov/ representative measure of cooling season energy (DOASes). DOE is addressing CRACs and DOASes buildings/appliance_standards/standards.aspx? consumption in actual operation using a weighted in a separate document. productid=71&action=viewlive. average of EER values determined for the four test 12 5 U.S.C. App. 2, Public Law 92–463. 15 Available at: https://www.regulations.gov/ points. 13 5 U.S.C. 561–570, Public Law 104–320. docket?D=EERE-2018-BT-STD-0003.

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TABLE II.I—FEDERAL ENERGY CONSERVATION STANDARDS AND ENERGY EFFICIENCY LEVELS IN ASHRAE STANDARD 90.1–2016 AND THE CORRESPONDING LEVELS IN ASHRAE STANDARD 90.1–2013 FOR VRF MULTI-SPLIT SYSTEMS 1

DOE Triggered Energy efficiency levels Energy efficiency levels by in ASHRAE Standard Federal energy con- ASHRAE Considered equipment class 2 in ASHRAE Standard 90.1–2013 (as cor- 90.1–2016 servation standards Standard rected) 3 90.1–2016 Amend- ment?

VRF Air Conditioners, Air-cooled, <65,000 Btu/h .... 13.0 SEER ...... 13.0 SEER ...... 13.0 SEER ...... No. VRF Air Conditioners, Air-cooled, ≥65,000 Btu/h 11.2 EER, 13.1 IEER ..... 11.2 EER, 15.5 IEER ..... 11.2 EER ...... No. and <135,000 Btu/h, No Heating or Electric Re- sistance Heating. VRF Air Conditioners, Air-cooled, ≥65,000 Btu/h No standard ...... No standard ...... 11.0 EER ...... No. and <135,000 Btu/h, All Other Types of Heating 4. VRF Air Conditioners, Air-cooled, ≥135,000 Btu/h 11.0 EER, 12.9 IEER ..... 11.0 EER, 14.9 IEER ..... 11.0 EER ...... No. and <240,000 Btu/h, No Heating or Electric Re- sistance Heating. VRF Air Conditioners, Air-cooled, ≥135,000 Btu/h No standard ...... No standard ...... 10.8 EER ...... No. and <240,000 Btu/h, All Other Types of Heating 4. VRF Air Conditioners, Air-cooled, ≥240,000 Btu/h 10.0 EER, 11.6 IEER ..... 10.0 EER, 13.9 IEER ..... 10.0 EER ...... No. and <760,000 Btu/h, No Heating or Electric Re- sistance Heating. VRF Air Conditioners, Air-cooled, ≥240,000 Btu/h No standard ...... No standard ...... 9.8 EER ...... No. and <760,000 Btu/h, All Other Types of Heating 4. VRF Heat Pumps, Air-cooled, <65,000 Btu/h ...... 13.0 SEER, 7.7 HSPF ... 13.0 SEER, 7.7 HSPF ... 13.0 SEER, 7.7 HSPF No. VRF Heat Pumps, Air-cooled, ≥65,000 Btu/h and 11.0 EER, 12.9 IEER, 11.0 EER, 14.6 IEER, 11.0 EER, 3.3 COP ... No. <135,000 Btu/h, No Heating or Electric Resist- 3.3 COPH. 3.3 COPH. ance Heating 5. VRF Heat Pumps, Air-cooled, ≥65,000 Btu/h and 10.8 EER, 12.7 IEER; 10.8 EER, 14.4 IEER; 10.8 EER, 3.3 COP ... No. 45 <135,000 Btu/h, All Other Types of Heating . 3.3 COPH. 3.3 COPH. VRF Heat Pumps, Air-cooled, ≥135,000 Btu/h and 10.6 EER, 12.3 IEER, 10.6 EER, 13.9 IEER, 10.6 EER, 3.2 COP ... No. <240,000 Btu/h, No Heating or Electric Resist- 3.2 COPH. 3.2 COPH. ance Heating 5. VRF Heat Pumps, Air-cooled, ≥135,000 Btu/h and 10.4 EER, 12.1 IEER; 10.4 EER, 13.7 IEER; 10.4 EER, 3.2 COP ... No. 45 <240,000 Btu/h, All Other Types of Heating . 3.2 COPH. 3.2 COPH. VRF Heat Pumps, Air-cooled, ≥240,000 Btu/h and 9.5 EER, 11.0 IEER, 3.2 9.5 EER, 12.7 IEER, 3.2 9.5 EER, 3.2 COP ..... No. <760,000 Btu/h, No Heating or Electric Resist- COPH. COPH. ance Heating 5. VRF Heat Pumps, Air-cooled, ≥240,000 Btu/h and 9.3 EER, 10.8 IEER; 3.2 9.3 EER, 12.5 IEER; 3.2 9.3 EER, 3.2 COP ..... No. 45 <760,000 Btu/h, All Other Types of Heating . COPH. COPH. 6 7 VRF Heat Pumps, Water-source, <17,000 Btu/h, 12.0 EER, 4.2 COPH ...... 12.0 EER, 16.0 IEER, 12.0 EER, 4.2 COP ... Yes. 6 Without heat recovery. 4.3 COPH . 6 7 VRF Heat Pumps, Water-source, <17,000 Btu/h, 11.8 EER, 4.2 COPH ...... 11.8 EER, 15.8 IEER, 11.8 EER, 4.2 COP ... Yes. 6 With heat recovery. 4.3 COPH . 6 9 VRF Heat Pumps, Water-source, ≥17,000 Btu/h 12.0 EER, 4.2 COPH 12.0 EER, 16.0 IEER, 12.0 EER, 4.2 COP ... Yes. 8 6 and <65,000 Btu/h . (without heat recov- 4.3 COPH (without ery); 11.8 EER, 4.2 heat recovery); 11.8 6 COPH (with heat re- EER, 15.8 IEER, 4.3 6 covery). COPH (with heat re- covery). 6 9 VRF Heat Pumps, Water-source, ≥65,000 Btu/h 12.0 EER, 4.2 COPH 12.0 EER, 16.0 IEER, 12.0 EER, 4.2 COP ... Yes. 8 6 and <135,000 Btu/h . (without heat recov- 4.3 COPH (without ery); 11.8 EER, 4.2 heat recovery); 11.8 6 COPH (with heat re- EER, 15.8 IEER, 4.3 6 covery). COPH (with heat re- covery). 6 7 VRF Heat Pumps, Water-source, ≥135,000 Btu/h 10.0 EER, 3.9 COPH ...... 10.0 EER, 14.0 IEER, 10.0 EER, 3.9 COP ... Yes. 6 and <240,000 Btu/h, Without heat recovery. 4.0 COPH . 6 7 VRF Heat Pumps, Water-source, ≥135,000 Btu/h 9.8 EER, 3.9 COPH ...... 9.8 EER, 13.8 IEER, 4.0 9.8 EER, 3.9 COP ..... Yes. 6 and <240,000 Btu/h, With heat recovery. COPH . 6 VRF Heat Pumps, Water-source, ≥240,000 Btu/h 10.0 EER, 3.9 COPH ...... 10.0 EER, 12.0 IEER, 10.0 EER, 3.9 COP ... No. and <760,000 Btu/h, Without heat recovery. 3.9 COPH. 6 VRF Heat Pumps, Water-source, ≥240,000 Btu/h 9.8 EER, 3.9 COPH ...... 9.8 EER, 11.8 IEER, 3.9 9.8 EER, 3.9 COP ..... No. and <760,000 Btu/h, With heat recovery. COPH. 1 ‘‘SEER’’ means Seasonal Energy Efficiency Ratio; ‘‘EER’’ means Energy Efficiency Ratio; ‘‘IEER’’ means Integrated Energy Efficiency Ratio; ‘‘HSPF’’ means Heating Seasonal Performance Factor; ‘‘COPH’’ means Coefficient of Performance for heating; and ‘‘COP’’ means Coefficient of Performance (equivalent to COPH). 2 Considered equipment classes may differ from the equipment classes defined in DOE’s regulations, but no loss of coverage will occur (i.e., all previously covered DOE equipment classes remained covered equipment). 3 This table represents values in ASHRAE 90.1–2013 as corrected by various errata sheets issued by ASHRAE. All of the IEER values for air- source VRF multi-split system equipment are based on errata sheets. These errata do not impact existing DOE standards, which are in terms of EER, not IEER.

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4 In ASHRAE 90.1, this equipment class is referred to as units with heat recovery rather than all other types of heating. 5 In terms of Federal standards, VRF Multi-Split Heat Pumps (Air-Cooled) with heat recovery fall under the category of ‘‘All Other Types of Heating’’ unless they also have electric resistance heating, in which case it falls under the category for ‘‘No Heating or Electric Resistance Heat- ing.’’ 6 Rating effective 1/1/2018. 7 An energy savings analysis for this class of equipment was not conducted because there is no equipment on the market that would fall into this equipment class. 8 DOE cannot adopt the ASHRAE Standard 90.1–2016 efficiency standard for units with heat recovery because it would be back-sliding. As in the original final rule adopting standards for VRF multi-split heat systems (final rule for Energy Conservation Standards and Test Procedures for Commercial Heating, Air-Conditioning, and Water-Heating Equipment), DOE will not subdivide this equipment class. 77 FR 28928, 28938–28939 (May 16, 2012). 9 DOE did not conduct an energy savings analysis for this equipment class as when combined with the other water-source equipment class with market share their combined market share is estimated to be less than three percent, which would result in minimal national energy savings.

Before beginning an analysis of the do not disaggregate per these DOE also notes that ASHRAE potential energy savings that would characteristics in all cases. For example, Standard 90.1–2016 has subdivided the result from adopting a uniform national the VRF multi-split system equipment VRF Heat Pumps, Water-source, standard at the minimum level specified classes for water-source heat pumps ≥135,000 Btu/h and <760,000 Btu/h by ASHRAE Standard 90.1–2016 or a ≥65,000 Btu/h and <135,000 do not classes, both with and without heat more-stringent uniform national differentiate based on whether or not recovery, into separate equipment standard, DOE must first determine the units have heat recovery. Also, as classes for units with cooling capacities whether the ASHRAE Standard 90.1– discussed in the following paragraph, ≥135,000 Btu/h and <240,000 Btu/h and 2016 standard levels actually represent the divisions between equipment units with cooling capacities ≥240,000 an increase in efficiency above the classes, including the disaggregation Btu/h and <760,000 Btu/h, and included current Federal standard levels, thereby between equipment class capacity different minimum efficiency levels for triggering DOE action. This section ranges, is not entirely consistent each. All efficiency levels meet or contains a discussion of each equipment between the Federal standards and exceed the current Federal standards for classes of VRF multi-split systems ASHRAE Standard 90.1–2016.17 DOE’s broader efficiency class. Further, where the ASHRAE Standard 90.1–2016 although DOE does not regulate VRF DOE notes that in ASHRAE Standard efficiency levels differed from the multi-split systems with an efficiency 90.1–2016 (as in previous versions of ASHRAE Standard 90.1–2013 level(s) 16 metric of IEER, ASHRAE Standard 90.1– ASHRAE Standard 90.1), the equipment (based on a rating metric used in the 2016 specifies lower IEER standards for class VRF Heat Pumps, Water-source, relevant Federal energy conservation water-source systems that are ≥240,000 ≥17,000 Btu/h and <65,000 Btu/h and standards) or where ASHRAE created Btu/h, as compared to those in the the equipment class VRF Heat Pumps, new equipment classes, along with ≥135,000 Btu/h and <240,000 Btu/h Water-source, ≥65,000 Btu/h and DOE’s preliminary conclusion regarding class. As such, DOE is assuming that <135,000 Btu/h are disaggregated into the appropriate action to take with there could be technical reasons for units with heat recovery and units respect to that equipment. DOE is also which water-source systems in the without heat recovery, with each examining the other equipment classes ≥240,000 Btu/h and <760,000 Btu/h ASHRAE equipment class having a (i.e., non-triggered classes) of VRFs cooling capacity range may not be able separate minimum cooling efficiency. under its 6-year-lookback authority. (42 to achieve the same efficiency levels as Currently, the Federal standards do not U.S.C. 6313(a)(6)(C)) systems that are ≥135,000 Btu/h and disaggregate such VRF multi-split The current Federal energy <240,000 Btu/h, and that this likely systems based on the presence of heat conservation standards include 20 justifies establishing separate DOE recovery. The cooling efficiency EER equipment classes in the equipment equipment classes which are split at the standard in ASHRAE Standard 90.1– category for VRF multi-split systems, 240,000 Btu/h point. For these reasons, 2016 for these units with heat recovery which can be found in DOE’s DOE is considering revising its current is below the current Federal standard. regulations at 10 CFR 431.97. The equipment class structure to align more Under EPCA, the Secretary may not Federal energy conservation standards closely with the structure used by prescribe any amended standard under for VRF multi-split systems are ASHRAE Standard 90.1–2016. If DOE the ASHRAE review provisions that differentiated based on whether it is an were to revise the above water-source increases the maximum allowable air-conditioner or a heat pump, the equipment classes, then the total energy use, or decreases the minimum cooling capacity, and the heat source number of equipment classes for VRF required energy efficiency, of a covered (air-cooled or water-source). multi-split systems would increase from product. (42 U.S.C. 6313(a)(6)(B)(iii)(I)) Additionally, air-cooled equipment 20 to 22. Therefore, as in May 2012 final rule, classes are further differentiated based Issue 1: DOE requests feedback on its DOE has not subdivided these on the supplemental heating type (No consideration of additional equipment equipment classes. DOE does not Heating or Electric Resistance Heating; classes for VRF Heat Pumps, Water- consider whether heat recovery is a or All Other Types of Heating). Finally, source, ≥135,000 Btu/h and <760,000 performance characteristic under 42 some water-source equipment classes Btu/h, both with and without heat U.S.C. 6313(a)(6)(B)(iii)(II)(aa), unless with cooling capacity <17,000 Btu/h or recovery, by separating the equipment DOE is doing so in the context of with cooling capacities ≥135,000 Btu/h classes into units with cooling considering uniform national standards and <760,000 Btu/h are differentiated capacities ≥135,000 Btu/h and <240,000 that are more-stringent than the based on whether or not they have heat Btu/hand and units with cooling corresponding standards set by recovery. The DOE equipment classes capacities ≥240,000 Btu/h and <760,000 ASHRAE in Standard 90.1. Btu/h. 16 ASHRAE Standard 90.1–2016 did not change ASHRAE Standard 90.1–2016 any of the design requirements for the commercial 17 In addition to the items listed in the subsequent heating, air conditioning, and water heating paragraphs, there are some nomenclature increased the heating energy efficiency equipment covered by EPCA, so this potential differences in the VRF air-cooled heat pump levels, as represented by the COP category of change is not discussed in this section. equipment classes, as described in Table I.1. metrics, for six of the 20 DOE

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equipment classes in the VRF multi- standards for these two equipment criteria. Similar to the consideration of split system equipment category that classes is de minimis. whether to adopt a standard more DOE is considering for this NODA.18 Given the extremely low market share stringent than an amended ASHRAE These classes are: of the VRF equipment classes for which Standard 90.1 standard, DOE must 1. VRF Heat Pumps, Water-source, DOE was triggered, DOE did not evaluate whether amended Federal <17,000 Btu/h, Without heat conduct a quantitative estimate of standards would result in significant recovery potential energy savings. If DOE does additional conservation of energy and 2. VRF Heat Pumps, Water-source, not identify any other data regarding are technologically feasible and <17,000 Btu/h, With heat recovery market share for the above six classes, economically justified. (42 U.S.C. 3. VRF Heat Pumps, Water-source, DOE would propose to adopt the levels 6313(a)(6)(C)(i)(I)–(II)) ≥17,000 Btu/h and <65,000 Btu/h in ASHRAE 90.1–2016 as the Federal 4. VRF Heat Pumps, Water-source, standards, as required by EPCA, because A. Rulemaking Process ≥65,000 Btu/h and <135,000 Btu/h more-stringent standards for these To determine whether a standard is 5. VRF Heat Pumps, Water-source, equipment classes would be unlikely to economically justified, EPCA requires ≥ 135,000 Btu/h and <240,000 Btu/ produce significant additional energy that DOE determine whether the h, Without heat recovery savings. benefits of the standard exceed its 6. VRF Heat Pumps, Water-source, Issue 2: DOE requests feedback on its burdens by considering, to the greatest ≥ 135,000 Btu/h and <240,000 Btu/ proposal to adopt the levels in ASHRAE extent practicable, the following seven h, With heat recovery 90.1–2016 as the Federal standards for factors: the six VRF water-source classes that are B. Energy Savings Potential for (1) The economic impact of the triggered by ASHRAE 90–1.2016. Considered Equipment Classes standard on the manufacturers and As required under 42 U.S.C. III. Consideration of More-Stringent consumers of the equipment subject to 6313(a)(6)(A), for VRF equipment Standards: Requested Information the standard; classes for which ASHRAE Standard As discussed, if DOE determines, by (2) The savings in operating costs 90.1–2016 set more stringent levels than rule published in the Federal Register throughout the estimated average life of the current Federal standards, DOE and supported by clear and convincing the covered equipment in the type (or performed an assessment to determine evidence, that adoption of a uniform class) compared to any increases in the the energy-savings potential of national standard more stringent than price, initial charges, or maintenance amending Federal standard levels to the amended ASHRAE Standard 90.1 expenses for the covered equipment reflect the efficiency levels specified in level for the equipment in question likely to result from the standard; ASHRAE Standard 90.1–2016. would result in significant additional (3) The total projected amount of DOE has determined, based on a conservation of energy and is energy savings likely to result directly report by Cadeo Group,19 that four of the technologically feasible and from the standard; six VRF water-source classes for which economically justified, DOE must adopt (4) Any lessening of the utility or the ASHRAE Standard 90.1–2016 increased the more-stringent standard. (42 U.S.C. performance of the products likely to the energy efficiency levels—those with 6313(a)(6)(A)(ii)(II) and (B)(i)) Therefore, result from the standard; cooling capacities that are less than for the six equipment classes identified (5) The impact of any lessening of 17,000 Btu/h or greater than or equal to in the prior section for which ASHRAE competition, as determined in writing 135,000 Btu/h—do not have any market has amended the standards, DOE is by the Attorney General, that is likely to share and, therefore, no energy savings evaluating whether more-stringent result from the standard; potential at this time. Also based on the standards would meet the specified (6) The need for national energy and Cadeo Group report, DOE has statutory criteria (as discussed in water conservation; and tentatively determined that the section II of this notice). (7) Other factors the Secretary of remaining two VRF water-source In addition, DOE is also evaluating Energy (Secretary) considers relevant. classes, with cooling capacities greater the remaining 16 VRF equipment than or equal to 17,000 Btu/h and less classes for which ASHRAE Standard (42 U.S.C. 6313(a)(6)(B)(ii)(I)–(VII)). than 135,000 Btu/h, together represent 90.1–2016 did not increase the DOE fulfills these and other only three percent of the entire VRF stringency of the standards pursuant to applicable requirements by conducting market. Due to the low market share and the six-year look-back provision at 42 a series of analyses throughout the corresponding minimal total potential U.S.C. 6313(a)(6)(C)(i). In making a rulemaking process. Table III.I shows energy savings, DOE has tentatively determination of whether standards for the individual analyses that are determined that the energy savings such equipment need to be amended, performed to satisfy each of the potential for more stringent efficiency DOE must also follow specific statutory requirements within EPCA.

TABLE III.I—EPCA REQUIREMENTS AND CORRESPONDING DOE ANALYSIS

EPCA requirement Corresponding DOE analysis

Technological Feasibility ...... • Market and Technology Assessment. • Screening Analysis. • Engineering Analysis. Economic Justification: 1. Economic impact on manufacturers and consumers ...... • Manufacturer Impact Analysis.

18 ASHRAE 90.1–2016 left in place the existing 19 Cadeo Report, Variable Refrigerant Flow: A confidential sales data given in interviews with EER levels for these classes, which are equivalent Preliminary Market Assessment. See: https:// several major manufacturers of VRF multi-split to current Federal standards. www.regulations.gov/document?D=EERE-2017-BT- equipment and DOE’s Compliance Certification TP-0018-0002. The report presents market share by Database. VRF multi-split system equipment class, based on

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TABLE III.I—EPCA REQUIREMENTS AND CORRESPONDING DOE ANALYSIS—Continued

EPCA requirement Corresponding DOE analysis

• Life-Cycle Cost and Payback Period Analysis. • Life-Cycle Cost Subgroup Analysis. • Shipments Analysis. 2. Lifetime operating cost savings compared to increased cost for the product .. • Markups for Product Price Determination. • Energy and Water Use Determination. • Life-Cycle Cost and Payback Period Analysis. 3. Total projected energy savings ...... • Shipments Analysis. • National Impact Analysis. 4. Impact on utility or performance ...... • Screening Analysis. • Engineering Analysis. 5. Impact of any lessening of competition ...... • Manufacturer Impact Analysis. 6. Need for national energy and water conservation ...... • Shipments Analysis. • National Impact Analysis. 7. Other factors the Secretary considers relevant ...... • Employment Impact Analysis. • Utility Impact Analysis. • Emissions Analysis. • Monetization of Emission Reductions Benefits. • Regulatory Impact Analysis.

DOE is publishing this document while remaining consistent with the standards. Specifically, DOE seeks data seeking input and data from interested requirements of EPCA. and information that could enable the parties to aid in the development of the Based on the Cadeo report, DOE has agency to determine whether DOE technical analyses for VRF multi-split determined that only four of the 16 should propose a ‘‘no new standard’’ systems. The issues listed below equipment classes for which ASHRAE determination because a more-stringent primarily pertain to the VRF market and Standard 90.1 did not amend the standard: (1) Would not result in the requested information will be standard have market share, specifically significant additional savings of energy; relevant to conducting the technical and the air-source heat pumps with cooling (2) is not technologically feasible; (3) is economic analyses. Information capacities greater than or equal to not economically justified; or (4) any received in response to this document is 65,000 Btu/h and less than 240,000 Btu/ combination of the foregoing. intended to supplement any information h. These equipment classes, which are Issue 4: DOE requests information on received in the course of the ASRAC listed below, are the focus of DOE’s the typical applications of VRF multi- Working Group’s efforts. request for information. split systems and what the most 1. VRF Heat Pumps, Air-cooled, ≥65,000 common applications are (e.g., specific B. Request for Information and Btu/h and <135,000 Btu/h, No building types and climates). DOE also Comment Heating or Electric Resistance requests information on typical Heating practices for sizing outdoor units (e.g., In addition to the specific issues 2. VRF Heat Pumps, Air-cooled, ≥65,000 sized to match calculated building loads identified below on which DOE seeks Btu/h and <135,000 Btu/h, All or oversized) and zoning indoor units. comment, DOE requests comment on its Other Types of Heating Issue 5: DOE seeks historical overall approach and analyses that will 3. VRF Heat Pumps, Air-cooled, shipments data for VRF multi-split be used to evaluate potential standard ≥135,000 Btu/h and <240,000 Btu/ systems and projections for growth of levels for VRFs. In particular, DOE notes h, No Heating or Electric Resistance the market based on trends stakeholders that under Executive Order 13771, Heating have observed. DOE is interested in this ‘‘Reducing Regulation and Controlling 4. VRF Heat Pumps, Air-cooled, data by equipment class, efficiency, and Regulatory Costs,’’ Executive Branch ≥135,000 Btu/h and <240,000 Btu/ climatic region. agencies such as DOE are directed to h, All Other Types of Heating Issue 6: DOE requests data on the manage the costs associated with the Below are the specific issues that DOE breakdown of the market between new imposition of expenditures required to is seeking input and data from construction, replacements, and new comply with Federal regulations. See 82 interested parties pertaining to the VRF owners (i.e., owners that choose to FR 9339 (Feb. 3, 2017). Consistent with multi-split system market and industry. replace their current system with a VRF that Executive Order, DOE encourages Issue 3: DOE seeks comment on multi-split system in an existing the public to provide input on measures whether, in the context of its building). DOE could take to lower the cost of its consideration of more-stringent A table of the types of shipments data energy conservation standards standards, there have been sufficient requested in Issues 5 and 6 can be found rulemakings, recordkeeping and technological or market changes for in Table III.2 of this document. reporting requirements, and compliance VRFs since the most recent standards Interested parties are also encouraged to and certification requirements update that may justify a new provide additional shipments data as applicable to VRF multi-split systems rulemaking to consider more-stringent may be relevant.

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TABLE III.2—SUMMARY TABLE OF SHIPMENTS DATA REQUESTS

Annual shipments (year) Equipment class New construction New owners Replacements

Air-Cooled, No Heating or Electric Resistance ...... ≥65,000 Btu/h and <135,000. ≥135,000 Btu/h and <240,000 Btu/h. Air-Cooled, All Other Types of Heating ...... ≥65,000 Btu/h and <135,000. ≥135,000 Btu/h and <240,000 Btu/h.

As part of the manufacturer impact C. Other Energy Conservation Standards Submitting comments via http:// analysis (MIA), DOE intends to analyze Topics www.regulations.gov. The http:// www.regulations.gov web page will potential impacts of amended energy 1. Market Failures conservation standards on subgroups of require you to provide your name and manufacturers of covered equipment, In the field of economics, a market contact information. Your contact including small business manufacturers. failure is a situation in which the information will be viewable to DOE DOE uses the Small Business market outcome does not maximize Building Technologies staff only. Your Administration’s (‘‘SBA’’) small societal welfare. Such an outcome contact information will not be publicly business size standards to determine would result in unrealized potential viewable except for your first and last whether manufacturers qualify as small welfare. DOE welcomes comment on names, organization name (if any), and businesses, which are listed by the any aspect of market failures, especially submitter representative name (if any). applicable North American Industry those in the context of amended energy If your comment is not processed Classification System (‘‘NAICS’’) code. conservation standards for VRF multi- properly because of technical Manufacturing of VRF multi-split split systems. difficulties, DOE will use this systems is classified under NAICS 2. Network Mode/‘‘Smart’’ Equipment information to contact you. If DOE cannot read your comment due to 333415, ‘‘Air-Conditioning and Warm DOE recently published an RFI on the technical difficulties and cannot contact Air Heating Equipment and Commercial emerging smart technology appliance you for clarification, DOE may not be and Industrial Refrigeration Equipment and equipment market. 83 FR 46886 able to consider your comment. Manufacturing,’’ and the SBA sets a (Sept. 17, 2018). In that RFI, DOE sought However, your contact information threshold of 1,250 employees or less for information to better understand market will be publicly viewable if you include a domestic entity to be considered as a trends and issues in the emerging it in the comment itself or in any small business 13 CFR 121.201. This market for appliances and commercial documents attached to your comment. employee threshold includes all equipment that incorporate smart Any information that you do not want employees in a business’ parent technology. DOE’s intent in issuing the company and any other subsidiaries. RFI was to ensure that DOE did not to be publicly viewable should not be inadvertently impede such innovation included in your comment, nor in any Issue 7: DOE requests the names and document attached to your comment. contact information of small business in fulfilling its statutory obligations in setting efficiency standards for covered Otherwise, persons viewing comments manufacturers, as defined by the SBA’s will see only first and last names, size threshold, of VRF multi-split products and equipment. DOE seeks comments, data, and information on the organization names, correspondence systems that distribute products in the containing comments, and any United States. In addition, DOE requests issues presented in the RFI as they may be applicable to VRFs. documents submitted with the comment on any other manufacturer comments. subgroups that could be 3. Other Do not submit to http:// disproportionally impacted by amended www.regulations.gov information for energy conservation standards for VRF In addition to the issues identified earlier in this document, DOE welcomes which disclosure is restricted by statute, multi-split systems. DOE requests such as trade secrets and commercial or feedback on any potential approaches comment on any other aspect of energy conservation standards for VRF multi- financial information (hereinafter that could be considered to address split systems not already addressed by referred to as Confidential Business impacts on manufacturers, including the specific areas identified in this Information (CBI)). Comments small businesses. document. submitted through http:// Issue 8: To the extent feasible, DOE www.regulations.gov cannot be claimed seeks to identify all VRF multi-split IV. Public Participation as CBI. Comments received through the system manufacturers that currently DOE invites all interested parties to website will waive any CBI claims for distribute equipment in the United submit in writing by the date specified the information submitted. For States. Currently, DOE has identified previously in the DATES section of this information on submitting CBI, see the Daikin, Fujitsu, GD Midea, Gree, document, comments, data, and Confidential Business Information Hitachi, LG, Mitsubishi, Panasonic, information on matters addressed in this section. Samsung, and Toshiba as VRF multi- NODA and RFI and on other matters DOE processes submissions made split system manufacturers. DOE seeks relevant to DOE’s consideration of through http://www.regulations.gov comment on the comprehensiveness of amended energy conservation standards before posting. Normally, comments this list of manufacturers, and requests for VRF multi-split systems. Interested will be posted within a few days of the names and contact information of parties may submit comments, data, and being submitted. However, if large any other domestic or foreign-based other information using any of the volumes of comments are being manufacturers that sell or otherwise methods described in the ADDRESSES processed simultaneously, your market their VRF multi-split systems in section at the beginning of this comment may not be viewable for up to the United States. document. several weeks. Please keep the comment

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tracking number that http:// treated as confidential within the DEPARTMENT OF TRANSPORTATION www.regulations.gov provides after you industry, (3) whether the information is have successfully uploaded your generally known by or available from Federal Aviation Administration comment. other sources, (4) whether the Submitting comments via email, hand information has previously been made 14 CFR Part 39 delivery/courier, or postal mail. available to others without obligation [Docket No. FAA–2019–0522; Product Comments and documents submitted concerning its confidentiality, (5) an Identifier 2019–NM–082–AD] via email, hand delivery/courier, or explanation of the competitive injury to postal mail also will be posted to http:// RIN 2120–AA64 the submitting person which would www.regulations.gov. If you do not want result from public disclosure, (6) when your personal contact information to be Airworthiness Directives; Airbus SAS publicly viewable, do not include it in such information might lose its Airplanes confidential character due to the your comment or any accompanying AGENCY: Federal Aviation passage of time, and (7) why disclosure documents. Instead, provide your Administration (FAA), DOT. contact information in a cover letter. of the information would be contrary to the public interest. ACTION: Notice of proposed rulemaking Include your first and last names, email (NPRM). address, telephone number, and It is DOE’s policy that all comments optional mailing address. The cover may be included in the public docket, SUMMARY: The FAA proposes to adopt a letter will not be publicly viewable as without change and as received, new airworthiness directive (AD) for all long as it does not include any including any personal information Airbus SAS Model A320–251N and comments. provided in the comments (except –271N airplanes, and Model A321– Include contact information each time information deemed to be exempt from 251N, –253N, –271N, and –272N you submit comments, data, documents, public disclosure). airplanes. This proposed AD was and other information to DOE. If you prompted by reports that the regulated submit via postal mail or hand delivery/ DOE considers public participation to bleed temperature was measured above courier, please provide all items on a be a very important part of the process the design target with a temperature CD, if feasible, in which case it is not for developing energy conservation regulation shift phenomenon, and necessary to submit printed copies. standards. DOE actively encourages the investigation results show that incorrect Comments, data, and other participation and interaction of the temperature regulation can degrade information submitted to DOE public during the comment period in pneumatic system components located electronically should be provided in each stage of the rulemaking process. downstream of the pre-cooler. This PDF (preferred), Microsoft Word or Interactions with and between members proposed AD would require uploading Excel, WordPerfect, or text (ASCII) file of the public provide a balanced improved bleed monitoring computer format. Provide documents that are not discussion of the issues and assist DOE (BMC) software (SW), as specified in a secured, that are written in English, and in the rulemaking process. Anyone who European Aviation Safety Agency that are free of any defects or viruses. wishes to be added to the DOE mailing (EASA) AD, which will be incorporated Documents should not contain special list to receive future notices and by reference. The FAA is proposing this characters or any form of encryption. AD to address the unsafe condition on Campaign form letters. Please submit information about this process or would these products. campaign form letters by the originating like to request a public meeting should organization in batches of between 50 to contact Appliance and Equipment DATES: The FAA must receive comments 500 form letters per PDF or as one form Standards Program staff at (202) 287– on this proposed AD by August 22, letter with a list of supporters’ names 1445 or via email at 2019. compiled into one or more PDFs. This ApplianceStandardsQuestions@ ADDRESSES: You may send comments, reduces comment processing and ee.doe.gov. using the procedures found in 14 CFR posting time. V. Approval of the Office of the 11.43 and 11.45, by any of the following Confidential Business Information. Secretary methods: Pursuant to 10 CFR 1004.11, any person • Federal eRulemaking Portal: Go to submitting information that he or she The Secretary of Energy has approved http://www.regulations.gov. Follow the believes to be confidential and exempt publication of this notice of data instructions for submitting comments. • by law from public disclosure should availability and request for information. Fax: 202–493–2251. submit via email, postal mail, or hand • Mail: U.S. Department of delivery/courier two well-marked Signed in Washington, DC, on June 28, Transportation, Docket Operations, M– copies: One copy of the document 2019. 30, West Building Ground Floor, Room marked ‘‘confidential’’ including all the Alexander N. Fitzsimmons, W12–140, 1200 New Jersey Avenue SE, information believed to be confidential, Acting Deputy Assistant Secretary for Energy Washington, DC 20590. and one copy of the document marked Efficiency, Energy Efficiency and Renewable • Hand Delivery: Deliver to Mail ‘‘non-confidential’’ with the information Energy. address above between 9 a.m. and 5 believed to be confidential deleted. [FR Doc. 2019–14461 Filed 7–5–19; 8:45 am] p.m., Monday through Friday, except Submit these documents via email or on BILLING CODE 6450–01–P Federal holidays. a CD, if feasible. DOE will make its own For the material identified in this determination about the confidential proposed AD that will be incorporated status of the information and treat it by reference (IBR), contact the EASA, at according to its determination. Konrad-Adenauer-Ufer 3, 50668 Factors of interest to DOE when Cologne, Germany; telephone +49 221 evaluating requests to treat submitted 89990 1000; email [email protected]; information as confidential include: (1) internet www.easa.europa.eu. You may A description of the items, (2) whether find this IBR material on the EASA and why such items are customarily website at https://ad.easa.europa.eu.

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You may view this IBR material at the Discussion the unsafe condition described FAA, Transport Standards Branch, 2200 The EASA, which is the Technical previously is likely to exist or develop South 216th St., Des Moines, WA. For Agent for the Member States of the in other products of the same type information on the availability of this European Union, has issued EASA AD design. material at the FAA, call 206–231–3195. 2019–0094, dated April 26, 2019 Proposed AD Requirements It is also available in the AD docket on (‘‘EASA AD 2019–0094’’) (also referred the internet at http:// to as the Mandatory Continuing This proposed AD would require www.regulations.gov by searching for Airworthiness Information, or ‘‘the accomplishing the actions specified in and locating Docket No. FAA–2019– MCAI’’), to correct an unsafe condition EASA AD 2019–0094 described 0522. for all Airbus SAS Model A320–251N previously, as incorporated by Examining the AD Docket and –271N airplanes, and Model A321– reference, except for any differences 251N, –253N, –271N, and –272N identified as exceptions in the You may examine the AD docket on airplanes. The MCAI states: regulatory text of this AD. the internet at http:// www.regulations.gov by searching for During some flight tests of [Airbus SAS] Explanation of Required Compliance and locating Docket No. FAA–2019– A320 and A321 NEO (new engine option) Information 0522; or in person at Docket Operations aeroplanes, the regulated bleed temperature was measured above the design target with a between 9 a.m. and 5 p.m., Monday In the FAA’s ongoing efforts to temperature regulation shift phenomenon. improve the efficiency of the AD through Friday, except Federal holidays. The investigation results show that incorrect The AD docket contains this NPRM, the temperature regulation can degrade process, the FAA worked with Airbus regulatory evaluation, any comments pneumatic system components located and EASA to develop a process to use received, and other information. The downstream of the pre-cooler. certain EASA ADs as the primary source street address for Docket Operations is This condition, if not corrected, could lead of information for compliance with listed above. Comments will be to hot air leakage and consequent bleed loss, requirements for corresponding FAA available in the AD docket shortly after possibly resulting in the reduction of the ADs. As a result, EASA AD 2019–0094 system equipment safety margin. receipt. will be incorporated by reference in the To address this potential unsafe condition, FAA final rule. This proposed AD FOR FURTHER INFORMATION CONTACT: Airbus developed an improved BMC SW, and Sanjay Ralhan, Aerospace Engineer, issued the SB [service bulletin] A320–36– would, therefore, require compliance International Section, Transport 1078 to provide instructions for BMC SW with EASA AD 219–0094 in its entirety, Standards Branch, FAA, 2200 South uploading. through that incorporation, except for 216th St., Des Moines, WA 98198; For the reasons described above, this any differences identified as exceptions telephone and fax 206–231–3223. [EASA] AD requires modification of the in the regulatory text of this proposed affected parts and prohibits (re)installation of AD. Using common terms that are the SUPPLEMENTARY INFORMATION: affected parts. same as the heading of a particular Comments Invited Related IBR Material Under 1 CFR Part section in the EASA AD does not mean The FAA invites you to send any 51 that operators need comply only with that section. For example, where the AD written relevant data, views, or EASA AD 2019–0094 describes requirement refers to ‘‘all required arguments about this proposal. Send procedures for uploading BMC SW actions and compliance times,’’ your comments to an address listed standard 4.3. This material is reasonably compliance with this AD requirement is under the ADDRESSES section. Include available because the interested parties not limited to the section titled ‘‘Docket No. FAA–2019–0522; Product have access to it through their normal ‘‘Required Action(s) and Compliance Identifier 2019–NM–082–AD’’ at the course of business or by the means Time(s)’’ in the EASA AD. Service beginning of your comments. The FAA identified in the ADDRESSES section. specifically invites comments on the information specified in EASA AD overall regulatory, economic, FAA’s Determination and Requirements 2019–0094 that is required for environmental, and energy aspects of of This Proposed AD compliance with EASA AD 2019–0094 this NPRM. The FAA will consider all This product has been approved by will be available on the internet at comments received by the closing date the aviation authority of another http://www.regulations.gov by searching and may amend this NPRM based on country, and is approved for operation for and locating Docket No. FAA–2019– those comments. in the United States. Pursuant to a 0522 after the FAA final rule is The FAA will post all comments bilateral agreement with the State of published. received, without change, to http:// Design Authority, the FAA has been Costs of Compliance www.regulations.gov, including any notified of the unsafe condition personal information you provide. The described in the MCAI referenced The FAA estimates that this proposed FAA will also post a report above. The FAA is proposing this AD AD affects 85 airplanes of U.S. registry. summarizing each substantive verbal because the agency evaluated all the The FAA estimates the following costs contact received about this NPRM. relevant information and determined to comply with this proposed AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Cost on U.S. Labor cost Parts cost product operators

4 work-hours × $85 per hour = $340 ...... $0 $340 $28,900

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Authority for This Rulemaking The Proposed Amendment (i) Other FAA AD Provisions The following provisions also apply to this Title 49 of the United States Code Accordingly, under the authority AD: specifies the FAA’s authority to issue delegated to me by the Administrator, (1) Alternative Methods of Compliance rules on aviation safety. Subtitle I, the FAA proposes to amend 14 CFR part (AMOCs): The Manager, International section 106, describes the authority of 39 as follows: Section, Transport Standards Branch, FAA, the FAA Administrator. Subtitle VII: has the authority to approve AMOCs for this Aviation Programs, describes in more PART 39—AIRWORTHINESS AD, if requested using the procedures found detail the scope of the Agency’s DIRECTIVES in 14 CFR 39.19. In accordance with 14 CFR authority. 39.19, send your request to your principal The FAA is issuing this rulemaking ■ 1. The authority citation for part 39 inspector or local Flight Standards District continues to read as follows: Office, as appropriate. If sending information under the authority described in directly to the International Section, send it Subtitle VII, Part A, Subpart III, Section Authority: 49 U.S.C. 106(g), 40113, 44701. to the attention of the person identified in 44701: ‘‘General requirements.’’ Under paragraph (j)(2) of this AD. Information may § 39.13 [Amended] that section, Congress charges the FAA be emailed to: 9-ANM-116-AMOC- with promoting safe flight of civil ■ 2. The FAA amends § 39.13 by adding [email protected]. Before using any aircraft in air commerce by prescribing the following new airworthiness approved AMOC, notify your appropriate regulations for practices, methods, and directive (AD): principal inspector, or lacking a principal procedures the Administrator finds inspector, the manager of the local flight necessary for safety in air commerce. Airbus SAS: Docket No. FAA–2019–0522; standards district office/certificate holding Product Identifier 2019–NM–082–AD. This regulation is within the scope of district office. that authority because it addresses an (a) Comments Due Date (2) Contacting the Manufacturer: For any requirement in this AD to obtain instructions unsafe condition that is likely to exist or The FAA must receive comments by from a manufacturer, the instructions must develop on products identified in this August 22, 2019. be accomplished using a method approved rulemaking action. (b) Affected ADs by the Manager, International Section, Transport Standards Branch, FAA; or EASA; This proposed AD is issued in None. accordance with authority delegated by or Airbus SAS’s EASA Design Organization the Executive Director, Aircraft (c) Applicability Approval (DOA). If approved by the DOA, Certification Service, as authorized by This AD applies to all Airbus SAS Model the approval must include the DOA- FAA Order 8000.51C. In accordance A320–251N and –271N airplanes, and Model authorized signature. with that order, issuance of ADs is A321–251N, –253N, –271N, and –272N (3) Required for Compliance (RC): For any airplanes, certificated in any category. service information referenced in EASA AD normally a function of the Compliance 2019–0094 that contains RC procedures and and Airworthiness Division, but during (d) Subject tests: Except as required by paragraph (i)(2) this transition period, the Executive Air Transport Association (ATA) of of this AD, RC procedures and tests must be Director has delegated the authority to America Code 36, Pneumatic. done to comply with this AD; any procedures issue ADs applicable to transport or tests that are not identified as RC are category airplanes and associated (e) Reason recommended. Those procedures and tests appliances to the Director of the System This AD was prompted by reports that the that are not identified as RC may be deviated Oversight Division. regulated bleed temperature was measured from using accepted methods in accordance above the design target with a temperature with the operator’s maintenance or Regulatory Findings regulation shift phenomenon, and inspection program without obtaining investigation results show that incorrect approval of an AMOC, provided the The FAA determined that this temperature regulation can degrade procedures and tests identified as RC can be proposed AD would not have federalism pneumatic system components located done and the airplane can be put back in an implications under Executive Order downstream of the pre-cooler. The FAA is airworthy condition. Any substitutions or 13132. This proposed AD would not issuing this AD to address this condition, changes to procedures or tests identified as have a substantial direct effect on the which, if not corrected, could lead to hot air RC require approval of an AMOC. States, on the relationship between the leakage and consequent bleed loss, possibly (j) Related Information national Government and the States, or resulting in the reduction of the system equipment safety margin. on the distribution of power and (1) For information about EASA AD 2019– responsibilities among the various (f) Compliance 0094, contact the EASA, Konrad-Adenauer- levels of government. Ufer 3, 50668 Cologne, Germany; telephone Comply with this AD within the +49 221 89990 6017; email ADs@ For the reasons discussed above, I compliance times specified, unless already easa.europa.eu; Internet done. certify this proposed regulation: www.easa.europa.eu. You may find this 1. Is not a ‘‘significant regulatory (g) Requirements EASA AD on the EASA website at https:// action’’ under Executive Order 12866; Except as specified in paragraph (h) of this ad.easa.europa.eu. You may view this EASA AD: Comply with all required actions and AD at the FAA, Transport Standards Branch, 2. Will not affect intrastate aviation in 2200 South 216th St., Des Moines, WA. For Alaska; and compliance times specified in, and in accordance with, European Aviation Safety information on the availability of this 3. Will not have a significant Agency (EASA) AD 2019–0094, dated April material at the FAA, call 206–231–3195. economic impact, positive or negative, 26, 2019 (‘‘EASA AD 2019–0094’’). EASA AD 2019–0094 may be found in the on a substantial number of small entities AD docket on the internet at http:// (h) Exceptions to EASA AD 2019–0094 under the criteria of the Regulatory www.regulations.gov by searching for and Flexibility Act. (1) For purposes of determining locating Docket No. FAA–2019–0522. compliance with the requirements of this AD: (2) For more information about this AD, List of Subjects in 14 CFR Part 39 Where EASA AD 2019–0094 refers to its contact Sanjay Ralhan, Aerospace Engineer, effective date, this AD requires using the International Section, Transport Standards Air transportation, Aircraft, Aviation effective date of this AD. Branch, FAA, 2200 South 216th St., Des safety, Incorporation by reference, (2) The ‘‘Remarks’’ section of EASA AD Moines, WA 98198; telephone and fax 206– Safety. 2019–0094 does not apply to this AD. 231–3223.

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Issued in Des Moines, Washington, on June For service information identified in Discussion 27, 2019. this NPRM, contact Boeing Commercial The FAA issued AD 2017–12–07, Dionne Palermo, Airplanes, Attention: Contractual & Data Amendment 39–18922 (82 FR 27416, Acting Director, System Oversight Division, Services (C&DS), 2600 Westminster June 15, 2017) (‘‘AD 2017–12–07’’), for Aircraft Certification Service. Blvd., MC 110–SK57, Seal Beach, CA certain The Boeing Company Model [FR Doc. 2019–14286 Filed 7–5–19; 8:45 am] 90740–5600; telephone 562–797–1717; 737–800, –900, and –900ER series BILLING CODE 4910–13–P internet https:// airplanes. AD 2017–12–07 requires www.myboeingfleet.com. You may view replacing the affected left temperature this service information at the FAA, control valve and control cabin trim air DEPARTMENT OF TRANSPORTATION Transport Standards Branch, 2200 modulating valve. AD 2017–12–07 South 216th St., Des Moines, WA. For Federal Aviation Administration resulted from reports of in-flight failure information on the availability of this of the left temperature control valve and material at the FAA, call 206–231–3195. 14 CFR Part 39 control cabin trim air modulating valve. It is also available on the internet at The FAA issued AD 2017–12–07 to [Docket No. FAA–2019–0478; Product http://www.regulations.gov by searching address the possible occurrence of Identifier 2019–NM–040–AD] for and locating Docket No. FAA–2019– temperatures in excess of 100 degrees RIN 2120–AA64 0478. Fahrenheit in the flight deck or the Examining the AD Docket passenger cabin during cruise, which Airworthiness Directives; The Boeing could lead to the impairment of the Company Airplanes You may examine the AD docket on flightcrew and prevent continued safe flight and landing. AGENCY: Federal Aviation the internet at http:// www.regulations.gov by searching for Administration (FAA), DOT. Actions Since AD 2017–12–07 Was and locating Docket No. FAA–2019– ACTION: Notice of proposed rulemaking Issued 0478; or in person at Docket Operations (NPRM). between 9 a.m. and 5 p.m., Monday Since AD 2017–12–07 was issued, it SUMMARY: The FAA proposes to through Friday, except Federal holidays. has been determined that the affected supersede Airworthiness Directive (AD) The AD docket contains this NPRM, the parts may be installed as rotable spares 2017–12–07, which applies to certain regulatory evaluation, any comments on airplanes outside of the applicability The Boeing Company Model 737–800, received, and other information. The of AD 2017–12–07, thereby subjecting –900, and –900ER series airplanes. AD street address for Docket Operations is those airplanes to the unsafe condition. 2017–12–07 requires replacing the listed above. Comments will be Related Service Information Under 1 affected left temperature control valve available in the AD docket shortly after CFR Part 51 and control cabin trim air modulating receipt. This proposed AD would require valve. Since the FAA issued AD 2017– FOR FURTHER INFORMATION CONTACT: Julie 12–07, the agency determined that the Boeing Alert Service Bulletin 737– Moon, Aerospace Engineer, Cabin Safety 21A1203, dated June 8, 2016, which the affected parts may be installed on and Environmental Systems Section, airplanes outside the original Director of the Federal Register FAA, Seattle ACO Branch, 2200 South approved for incorporation by reference applicability of AD 2017–12–07. This 216th St., Des Moines, WA 98198; proposed AD would retain the as of July 20, 2017 (82 FR 27416, June phone and fax: 206–231–3571; email: 15, 2017). This service information is requirements of AD 2017–12–07, [email protected]. expand the applicability to include reasonably available because the those other airplanes, and add a new SUPPLEMENTARY INFORMATION: interested parties have access to it requirement for certain airplanes to through their normal course of business Comments Invited identify and replace the affected parts. or by the means identified in the ADDRESSES section. The FAA is proposing this AD to The FAA invites you to send any address the unsafe condition on these written relevant data, views, or FAA’s Determination products. arguments about this proposal. Send The FAA is proposing this AD DATES: The FAA must receive comments your comments to an address listed because the agency evaluated all the on this proposed AD by August 22, under the ADDRESSES section. Include relevant information and determined 2019. ‘‘Docket No. FAA–2019–0478; Product the unsafe condition described Identifier 2019–NM–040–AD’’ at the ADDRESSES: You may send comments, previously is likely to exist or develop beginning of your comments. The using the procedures found in 14 CFR in other products of the same type agency specifically invites comments on 11.43 and 11.45, by any of the following design. the overall regulatory, economic, methods: environmental, and energy aspects of Proposed AD Requirements • Federal eRulemaking Portal: Go to this NPRM. The agency will consider all http://www.regulations.gov. Follow the This proposed AD would retain all comments received by the closing date instructions for submitting comments. requirements of AD 2017–12–07, and • Fax: 202–493–2251. and may amend this NPRM because of expand the applicability to include all • Mail: U.S. Department of those comments. The Boeing Company Model 737–800, Transportation, Docket Operations, The FAA will post all comments –900, and –900ER series airplanes. This M–30, West Building Ground Floor, received, without change, to http:// proposed AD would also require an Room W12–140, 1200 New Jersey www.regulations.gov, including any inspection or records check to identify Avenue SE, Washington, DC 20590. personal information you provide. The the part number of the affected parts, • Hand Delivery: Deliver to Mail FAA will also post a report and for airplanes with affected parts, address above between 9 a.m. and 5 summarizing each substantive verbal accomplishing the actions specified in p.m., Monday through Friday, except contact the agency receives about this the service information described Federal holidays. proposed AD. previously, except as discussed under

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‘‘Differences Between this Proposed AD 2016, is limited to certain The Boeing unsafe condition. This difference has and the Service Information.’’ Company Model 737–800, -900, and been coordinated with Boeing. For information on the procedures -900ER series airplanes. However, the Costs of Compliance and compliance times, see this service applicability of this proposed AD information at http:// includes all The Boeing Company The FAA estimates that this proposed www.regulations.gov by searching for Model 737–800, –900, and –900ER AD affects 2,027 airplanes of U.S. and locating Docket No. FAA–2019– series airplanes. Because the affected registry. The agency estimates the 0478. parts are rotable parts, the FAA has following costs to comply with this Differences Between This Proposed AD determined that these parts could later proposed AD: and the Service Information be installed on airplanes that were The effectivity of Boeing Alert Service initially delivered with acceptable parts, Bulletin 737–21A1203, dated June 8, thereby subjecting those airplanes to the

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

Inspection/records check (new proposed 1 work-hour × $85 per hour = $85 ...... $0 $85 Up to $145,180. actions) (Up to 1,708 airplanes). Replacement (retained actions from AD 9 work-hours × $85 per hour = $765 ...... 4,800 5,565 Up to $1,775,235. 2017–12–07) (Up to 319 airplanes).

The agency estimates the following results of the proposed inspection or of determining the number of aircraft costs to do any necessary replacements records check. The agency has no way that might need these replacements: that would be required based on the

ON-CONDITION COSTS

Cost per Action Labor cost Parts cost product

Replacement ...... 9 work-hours × $85 per hour = $765 ...... $4,800 $5,565

Authority for This Rulemaking this transition period, the Executive List of Subjects in 14 CFR Part 39 Director has delegated the authority to Title 49 of the United States Code Air transportation, Aircraft, Aviation specifies the FAA’s authority to issue issue ADs applicable to transport category airplanes and associated safety, Incorporation by reference, rules on aviation safety. Subtitle I, Safety. Section 106, describes the authority of appliances to the Director of the System the FAA Administrator. Subtitle VII, Oversight Division. The Proposed Amendment Aviation Programs, describes in more Regulatory Findings Accordingly, under the authority detail the scope of the Agency’s delegated to me by the Administrator, authority. The FAA has determined that this the FAA proposes to amend 14 CFR part The FAA is issuing this rulemaking proposed AD would not have federalism 39 as follows: under the authority described in implications under Executive Order Subtitle VII, Part A, Subpart III, Section 13132. This proposed AD would not PART 39—AIRWORTHINESS 44701, ‘‘General requirements.’’ Under have a substantial direct effect on the DIRECTIVES that section, Congress charges the FAA States, on the relationship between the with promoting safe flight of civil national Government and the States, or ■ 1. The authority citation for part 39 aircraft in air commerce by prescribing on the distribution of power and continues to read as follows: regulations for practices, methods, and responsibilities among the various procedures the Administrator finds levels of government. Authority: 49 U.S.C. 106(g), 40113, 44701. necessary for safety in air commerce. § 39.13 [Amended] This regulation is within the scope of For the reasons discussed above, I that authority because it addresses an certify that the proposed regulation: ■ 2. The FAA amends § 39.13 by unsafe condition that is likely to exist or (1) Is not a ‘‘significant regulatory removing Airworthiness Directive (AD) develop on products identified in this action’’ under Executive Order 12866, 2017–12–07, Amendment 39–18922 (82 rulemaking action. (2) Will not affect intrastate aviation FR 27416, June 15, 2017), and adding This proposed AD is issued in in Alaska, and the following new AD: accordance with authority delegated by (3) Will not have a significant The Boeing Company: Docket No. FAA– the Executive Director, Aircraft economic impact, positive or negative, 2019–0478; Product Identifier 2019– Certification Service, as authorized by NM–040–AD. FAA Order 8000.51C. In accordance on a substantial number of small entities with that order, issuance of ADs is under the criteria of the Regulatory (a) Comments Due Date normally a function of the Compliance Flexibility Act. The FAA must receive comments on this and Airworthiness Division, but during AD action by August 22, 2019.

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(b) Affected ADs number 398908–4, in either the left 216th St., Des Moines, WA. For information This AD replaces AD 2017–12–07, temperature control valve location or the on the availability of this material at the Amendment 39–18922 (82 FR 27416, June control cabin trim air modulating valve FAA, call 206–231–3195. 15, 2017). location on any airplane. Issued in Des Moines, Washington, on June (c) Applicability (j) Alternative Methods of Compliance 24, 2019. (AMOCs) Dionne Palermo, This AD applies to all The Boeing Company Model 737–800, -900, and -900ER (1) The Manager, Seattle ACO Branch, Acting Director, System Oversight Division, series airplanes, certificated in any category. FAA, has the authority to approve AMOCs Aircraft Certification Service. for this AD, if requested using the procedures [FR Doc. 2019–14284 Filed 7–5–19; 8:45 am] (d) Subject found in 14 CFR 39.19. In accordance with BILLING CODE 4910–13–P Air Transport Association (ATA) of 14 CFR 39.19, send your request to your America Code 21, Air conditioning. principal inspector or local Flight Standards District Office, as appropriate. If sending (e) Unsafe Condition information directly to the manager of the DEPARTMENT OF TRANSPORTATION This AD was prompted by reports of in- certification office, send it to the attention of flight failure of the left temperature control the person identified in paragraph (k)(1) of Federal Aviation Administration valve and control cabin trim air modulating this AD. Information may be emailed to: 9- valve. The FAA is issuing this AD to address [email protected]. 14 CFR Part 39 the possible occurrence of temperatures in (2) Before using any approved AMOC, excess of 100 degrees Fahrenheit in the flight notify your appropriate principal inspector, [Docket No. FAA–2019–0487; Product deck or the passenger cabin during cruise, or lacking a principal inspector, the manager Identifier 2019–NM–044–AD] which could lead to the impairment of the of the local flight standards district office/ RIN 2120–AA64 flightcrew and prevent continued safe flight certificate holding district office. and landing. (3) An AMOC that provides an acceptable Airworthiness Directives; The Boeing (f) Compliance level of safety may be used for any repair, modification, or alteration required by this Company Airplanes Comply with this AD within the AD if it is approved by The Boeing Company AGENCY: Federal Aviation compliance times specified, unless already Organization Designation Authorization done. (ODA) that has been authorized by the Administration (FAA), DOT. (g) Retained Valve Replacement, With Manager, Seattle ACO Branch, FAA, to make ACTION: Notice of proposed rulemaking Revised Compliance Language those findings. To be approved, the repair (NPRM). method, modification deviation, or alteration This paragraph restates the requirements of deviation must meet the certification basis of SUMMARY: The FAA proposes to adopt a paragraph (g) of AD 2017–12–07 with revised the airplane, and the approval must new airworthiness directive (AD) for all compliance language. For airplanes specifically refer to this AD. identified in Boeing Alert Service Bulletin The Boeing Company Model 737–100, (4) For service information that contains 737–21A1203, dated June 8, 2016: Within 60 –200, –200C, –300, –400, and –500 steps that are labeled as Required for months after July 20, 2017 (the effective date series airplanes. This proposed AD was Compliance (RC), the provisions of of AD 2017–12–07), replace the left prompted by a report of a fuel leak paragraphs (j)(4)(i) and (j)(4)(ii) of this AD temperature control valve and control cabin apply. resulting from a crack on the left in-spar trim air modulating valve, as applicable, in (i) The steps labeled as RC, including upper wing skin. This proposed AD accordance with the Accomplishment substeps under an RC step and any figures would require repetitive surface high Instructions of Boeing Alert Service Bulletin identified in an RC step, must be done to frequency eddy current (HFEC) 737–21A1203, dated June 8, 2016. comply with the AD. If a step or substep is inspections of the left and right upper (h) New Valve Identification and labeled ‘‘RC Exempt,’’ then the RC wing skin, and repetitive general visual Replacement requirement is removed from that step or inspections of the upper wing skin in For airplanes not identified in paragraph substep. An AMOC is required for any the adjacent rib bay areas for any crack, (g) of this AD with an original certificate of deviations to RC steps, including substeps and applicable on-condition actions. airworthiness or an original export certificate and identified figures. (ii) Steps not labeled as RC may be The FAA is proposing this AD to of airworthiness dated on or before the address the unsafe condition on these effective date of this AD, do the actions deviated from using accepted methods in specified in paragraphs (h)(1) and (h)(2) of accordance with the operator’s maintenance products. this AD. or inspection program without obtaining DATES: The FAA must receive comments (1) Within 60 months after the effective approval of an AMOC, provided the RC steps, on this proposed AD by August 22, including substeps and identified figures, can date of this AD, perform a general visual 2019. inspection of the left temperature control still be done as specified, and the airplane valve and control cabin trim air modulating can be put back in an airworthy condition. ADDRESSES: You may send comments, valve to determine the valve part numbers. A (k) Related Information using the procedures found in 14 CFR review of airplane maintenance records is 11.43 and 11.45, by any of the following acceptable in lieu of this inspection if the (1) For more information about this AD, contact Julie Moon, Aerospace Engineer, methods: part numbers of the valves can be • Federal eRulemaking Portal: Go to conclusively determined from that review. Cabin Safety and Environmental Systems (2) If the left temperature control valve or Section, FAA, Seattle ACO Branch, 2200 http://www.regulations.gov. Follow the control cabin trim air modulating valve has South 216th St., Des Moines, WA 98198; instructions for submitting comments. part number 398908–4: Within 60 months phone and fax: 206–231–3571; email: • Fax: 202–493–2251. after the effective date of this AD, replace the [email protected]. • Mail: U.S. Department of left temperature control valve or control (2) For service information identified in Transportation, Docket Operations, M– cabin trim air modulating valve in this AD, contact Boeing Commercial 30, West Building Ground Floor, Room accordance with the Accomplishment Airplanes, Attention: Contractual & Data W12–140, 1200 New Jersey Avenue SE, Services (C&DS), 2600 Westminster Blvd., Instructions of Boeing Alert Service Bulletin Washington, DC 20590. 737–21A1203, dated June 8, 2016. MC 110–SK57, Seal Beach, CA 90740–5600; • telephone 562–797–1717; internet https:// Hand Delivery: Deliver to Mail (i) Parts Installation Prohibition www.myboeingfleet.com. You may view this address above between 9 a.m. and 5 As of the effective date of this AD, no referenced service information at the FAA, p.m., Monday through Friday, except person may install a valve having part Transport Standards Branch, 2200 South Federal holidays.

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For service information identified in this NPRM. The agency will consider all relevant information and determined this NPRM, contact Boeing Commercial comments received by the closing date the unsafe condition described Airplanes, Attention: Contractual & Data and may amend this NPRM because of previously is likely to exist or develop Services (C&DS), 2600 Westminster those comments. in other products of the same type Blvd., MC 110–SK57, Seal Beach, CA The FAA will post all comments, design. 90740–5600; telephone 562–797–1717; without change, to http:// Proposed AD Requirements internet https:// www.regulations.gov, including any www.myboeingfleet.com. You may view personal information you provide. The This proposed AD would require this referenced service information at FAA will also post a report accomplishment of the actions the FAA, Transport Standards Branch, summarizing each substantive verbal identified in Boeing Alert Requirements 2200 South 216th St., Des Moines, WA. contact the agency receives about this Bulletin 737–57A1344 RB, dated For information on the availability of proposed AD. February 18, 2019, described this material at the FAA, call 206–231– Discussion previously, except for any differences 3195. It is also available on the internet identified as exceptions in the at http://www.regulations.gov by The FAA has received an operator regulatory text of this proposed AD. searching for and locating Docket No. report of a fuel leak resulting from a For information on the procedures FAA–2019–0487. crack on the left in-spar upper wing and compliance times, see this service skin. The crack was found at wing information at http:// Examining the AD Docket buttock line 157, between stringer 4 and www.regulations.gov by searching for stringer 5 and measured approximately You may examine the AD docket on and locating Docket No. FAA–2019– 2.5 inches in length. The crack was the internet at http:// 0487. www.regulations.gov by searching for caused by higher local stress than and locating Docket No. FAA–2019– predicted, possibly attributable to fit-up Explanation of Requirements Bulletin issues from the rib installation. This 0487; or in person at Docket Operations The FAA worked in conjunction with condition, if not addressed, could result between 9 a.m. and 5 p.m., Monday industry, under the Airworthiness in a crack in the upper wing skin through Friday, except Federal holidays. Directive Implementation Aviation growing undetected, which could result The AD docket contains this NPRM, the Rulemaking Committee (AD ARC), to in the inability of the structure to carry regulatory evaluation, any comments enhance the AD system. One limit load and adversely affect the received, and other information. The enhancement is a process for annotating structural integrity of the airplane. street address for Docket Operations is which steps in the service information listed above. Comments will be Related Service Information Under 1 are ‘‘required for compliance’’ (RC) with available in the AD docket shortly after CFR Part 51 an AD. Boeing has implemented this RC receipt. The FAA reviewed Boeing Alert concept into Boeing service bulletins. FOR FURTHER INFORMATION CONTACT: Requirements Bulletin 737–57A1344 In an effort to further improve the Payman Soltani, Aerospace Engineer, RB, dated February 18, 2019. The quality of ADs and AD-related Boeing Airframe Section, FAA, Los Angeles service information describes service information, a joint process ACO Branch, 3960 Paramount procedures for repetitive surface HFEC improvement initiative was worked Boulevard, Lakewood, CA 90712–4137; inspections of the left and right upper between the FAA and Boeing. The phone: 562–627–5313; fax: 562–627– wing skin at wing buttock line 157, initiative resulted in the development of 5210; email: [email protected]. between stringer 4 and stringer 5, and a new process in which the service SUPPLEMENTARY INFORMATION: repetitive general visual inspections of information more clearly identifies the actions needed to address the unsafe Comments Invited the upper wing skin in the adjacent rib bay areas for any crack, and applicable condition in the ‘‘Accomplishment The FAA invites you to send any on-condition actions. On-condition Instructions.’’ The new process results written relevant data, views, or actions include repair. in a Boeing Requirements Bulletin, arguments about this proposal. Send This service information is reasonably which contains only the actions needed your comments to an address listed available because the interested parties to address the unsafe condition (i.e., under the ADDRESSES section. Include have access to it through their normal only the RC actions). ‘‘Docket No. FAA–2019–0487; Product course of business or by the means Costs of Compliance Identifier 2019–NM–044–AD’’ at the identified in the ADDRESSES section. beginning of your comments. The FAA The FAA estimates that this proposed specifically invites comments on the FAA’s Determination AD affects 160 airplanes of U.S. registry. overall regulatory, economic, The FAA is proposing this AD The agency estimates the following environmental, and energy aspects of because the agency evaluated all the costs to comply with this proposed AD:

ESTIMATED COSTS FOR REQUIRED ACTIONS

Cost per Cost on U.S. Action Labor cost Parts cost product operators

HFEC Inspection and General Visual In- 1 work-hour × $85 per hour = $85 per $0 $85 per inspection $13,600 per inspec- spection. inspection cycle. cycle. tion cycle.

The FAA has received no definitive condition repair specified in this Authority for This Rulemaking data that would enable the agency to proposed AD. provide cost estimates for the on- Title 49 of the United States Code specifies the FAA’s authority to issue rules on aviation safety. Subtitle I,

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section 106, describes the authority of PART 39—AIRWORTHINESS AD can be found in Boeing Alert Service the FAA Administrator. Subtitle VII: DIRECTIVES Bulletin 737–57A1344, dated February 18, Aviation Programs, describes in more 2019, which is referred to in Boeing Alert ■ 1. The authority citation for part 39 Requirements Bulletin 737–57A1344 RB, detail the scope of the Agency’s dated February 18, 2019. authority. continues to read as follows: The FAA is issuing this rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. (i) Exceptions to Service Information under the authority described in Specifications § 39.13 [Amended] Subtitle VII, Part A, Subpart III, Section (1) For purposes of determining 44701: ‘‘General requirements.’’ Under ■ 2. The FAA amends § 39.13 by adding compliance with the requirements of this AD: that section, Congress charges the FAA the following new airworthiness Where Boeing Alert Requirements Bulletin with promoting safe flight of civil directive (AD): 737–57A1344 RB, dated February 18, 2019, uses the phrase ‘‘the original issue date of aircraft in air commerce by prescribing The Boeing Company: Docket No. FAA– Requirements Bulletin 737–57A1344 RB,’’ regulations for practices, methods, and 2019–0487; Product Identifier 2019– this AD requires using ‘‘the effective date of procedures the Administrator finds NM–044–AD. this AD.’’ necessary for safety in air commerce. (a) Comments Due Date (2) Where Boeing Alert Requirements Bulletin 737–57A1344 RB, dated February This regulation is within the scope of The FAA must receive comments by 18, 2019, specifies contacting Boeing for that authority because it addresses an August 22, 2019. unsafe condition that is likely to exist or repair instructions: This AD requires doing develop on products identified in this (b) Affected ADs the repair using a method approved in None. accordance with the procedures specified in rulemaking action. paragraph (j) of this AD. This proposed AD is issued in (c) Applicability accordance with authority delegated by (j) Alternative Methods of Compliance This AD applies to all The Boeing (AMOCs) the Executive Director, Aircraft Company Model 737–100, –200, –200C, Certification Service, as authorized by –300, –400, and –500 series airplanes, (1) The Manager, Los Angeles ACO Branch, FAA Order 8000.51C. In accordance certificated in any category. FAA, has the authority to approve AMOCs for this AD, if requested using the procedures with that order, issuance of ADs is (d) Subject found in 14 CFR 39.19. In accordance with normally a function of the Compliance Air Transport Association (ATA) of 14 CFR 39.19, send your request to your and Airworthiness Division, but during America Code 57, Wings. principal inspector or local Flight Standards this transition period, the Executive District Office, as appropriate. If sending Director has delegated the authority to (e) Unsafe Condition information directly to the manager of the issue ADs applicable to transport This AD was prompted by a report of a fuel certification office, send it to the attention of category airplanes and associated leak resulting from a crack on the left in-spar the person identified in paragraph (k)(1) of appliances to the Director of the System upper wing skin. The FAA is issuing this AD this AD. Information may be emailed to: 9- [email protected]. Oversight Division. to address cracks in the upper wing skin, which could grow undetected. This (2) Before using any approved AMOC, Regulatory Findings condition, if not addressed, could result in notify your appropriate principal inspector, the inability of the structure to carry limit or lacking a principal inspector, the manager The FAA determined that this load and adversely affect the structural of the local flight standards district office/ proposed AD would not have federalism integrity of the airplane. certificate holding district office. (3) An AMOC that provides an acceptable implications under Executive Order (f) Compliance 13132. This proposed AD would not level of safety may be used for any have a substantial direct effect on the Comply with this AD within the inspection, repair, modification, or alteration compliance times specified, unless already required by this AD if it is approved by The States, on the relationship between the done. Boeing Company Organization Designation national Government and the States, or Authorization (ODA) that has been (g) Required Actions for Group 1 Airplanes on the distribution of power and authorized by the Manager, Los Angeles ACO responsibilities among the various For airplanes identified as Group 1 in Branch, FAA, to make those findings. To be levels of government. Boeing Alert Requirements Bulletin 737– approved, the inspection, repair method, For the reasons discussed above, I 57A1344 RB, dated February 18, 2019: modification deviation, or alteration Within 120 days after the effective date of certify this proposed regulation: deviation must meet the certification basis of this AD, do a surface high frequency eddy the airplane, and the approval must (1) Is not a ‘‘significant regulatory current (HFEC) inspection of the left and specifically refer to this AD. action’’ under Executive Order 12866, right upper wing skin and a general visual (2) Will not affect intrastate aviation inspection of the upper wing skin in the (k) Related Information in Alaska, and adjacent rib bay areas for any crack, and do (1) For more information about this AD, (3) Will not have a significant applicable on-condition actions, using a contact Payman Soltani, Aerospace Engineer, economic impact, positive or negative, method approved in accordance with the Airframe Section, FAA, Los Angeles ACO procedures specified in paragraph (j) of this Branch, 3960 Paramount Boulevard, on a substantial number of small entities AD. Lakewood, CA 90712–4137; phone: 562–627– under the criteria of the Regulatory (h) Required Actions for Groups 2 and 3 5313; fax: 562–627–5210; email: Flexibility Act. [email protected]. Airplanes List of Subjects in 14 CFR Part 39 (2) For service information identified in Except as specified by paragraph (i) of this this AD, contact Boeing Commercial Air transportation, Aircraft, Aviation AD: At the applicable times specified in the Airplanes, Attention: Contractual & Data safety, Incorporation by reference, ‘‘Compliance’’ paragraph of Boeing Alert Services (C&DS), 2600 Westminster Blvd., Requirements Bulletin 737–57A1344 RB, Safety. MC 110–SK57, Seal Beach, CA 90740–5600; dated February 18, 2019, do all applicable telephone 562–797–1717; internet https:// The Proposed Amendment actions identified in, and in accordance with, www.myboeingfleet.com. You may view this the Accomplishment Instructions of Boeing referenced service information at the FAA, Accordingly, under the authority Alert Requirements Bulletin 737–57A1344 Transport Standards Branch, 2200 South delegated to me by the Administrator, RB, dated February 18, 2019. 216th St., Des Moines, WA. For information the FAA proposes to amend 14 CFR part Note 1 to paragraph (h): Guidance for on the availability of this material at the 39 as follows: accomplishing the actions required by this FAA, call 206–231–3195.

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Issued in Des Moines, Washington, on June Hand delivery/Courier (for paper, disk, CPSIA as a durable infant or toddler 24, 2019. or CD–ROM submissions), preferably in product. Dionne Palermo, five copies, to: Division of the Pursuant to Section 104(b)(1)(A), the Acting Director, System Oversight Division, Secretariat, Consumer Product Safety Commission consulted with Aircraft Certification Service. Commission, Room 820, 4330 East West manufacturers, retailers, trade [FR Doc. 2019–14285 Filed 7–5–19; 8:45 am] Highway, Bethesda, MD 20814; organizations, laboratories, consumer BILLING CODE 4910–13–P telephone (301) 504–7923. advocacy groups, consultants, and Instructions: All submissions received members of the public in the must include the agency name and development of this proposed standard, CONSUMER PRODUCT SAFETY docket number for this proposed largely through the ASTM process. The COMMISSION rulemaking. All comments received may proposed rule is based on the voluntary be posted without change, including standard developed by ASTM 16 CFR Parts 1112 and 1239 any personal identifiers, contact International, ASTM F1004–19, information, or other personal Standard Consumer Safety [Docket No. CPSC–2019–0014] information provided, to: http:// Specification for Expansion Gates and Safety Standard for Gates and www.regulations.gov. Do not submit Expandable Enclosures (ASTM F1004– Enclosures confidential business information, trade 19). The ASTM standard is copyrighted, secret information, or other sensitive or but it can be viewed as a read-only AGENCY: Consumer Product Safety protected information that you do not document during the comment period Commission. want to be available to the public. If at: https://www.astm.org/CPSC.htm, by ACTION: Proposed rule. furnished at all, such information permission of ASTM. should be submitted in writing. II. Product Description SUMMARY: The Consumer Product Safety Docket: For access to the docket to Improvement Act of 2008 (CPSIA) read background documents or A. Definition of ‘‘Gates and Other requires the United States Consumer comments received, go to: http:// Enclosures’’ Product Safety Commission www.regulations.gov, and insert the ASTM F1004–19 defines an (Commission or CPSC) to promulgate docket number, CPSC–2019–0014, into ‘‘expansion gate’’ as a ‘‘barrier intended consumer product safety standards for the ‘‘Search’’ box, and follow the to be erected in an opening, such as a durable infant or toddler products. prompts. doorway, to prevent the passage of Accordingly, the Commission is FOR FURTHER INFORMATION CONTACT: young children, but which can be proposing a safety standard for gates Hope Nesteruk, Project Manager, removed by older persons who are able and enclosures in response to the Directorate for Engineering Sciences, to operate the locking mechanism’’ direction under Section 104(b) of the Consumer Product Safety Commission, (section 3.1.7). ASTM F1004–19 defines CPSIA. The Commission is also 5 Research Place, Rockville, MD 20850; an ‘‘expandable enclosure’’ as a ‘‘self- amending its regulations regarding third telephone: 301–987–2579; email: supporting barrier intended to party conformity assessment bodies to [email protected]. completely surround an area or play- include the safety standard for gates and space within which a young child may SUPPLEMENTARY INFORMATION: enclosures in the list of notice of be confined’’ (section 3.1.6). These requirements (NORs) issued by the I. Background and Statutory Authority products are intended for young Commission. Section 104(b) of the CPSIA, part of children aged 6 months through 24 DATES: Submit comments by September the Danny Keysar Child Product Safety months (section 1.2). 23, 2019. Notification Act, requires the Although the title of the ASTM F1004–19 standard and its definitions ADDRESSES: Comments related to the Commission to: (1) examine and assess Paperwork Reduction Act aspects of the the effectiveness of voluntary consumer include the word ‘‘expansion’’ and marking, labeling, and instructional product safety standards for durable ‘‘expandable’’ before the words ‘‘gate’’ literature of the proposed rule should be infant or toddler products, in and ‘‘enclosure,’’ respectively, the scope directed to the Office of Information and consultation with representatives of of the ASTM F1004–19 standard Regulatory Affairs, OMB, Attn: CPSC consumer groups, juvenile product includes all children’s gates and Desk Officer, FAX: 202–395–6974, or manufacturers, and independent child enclosures, whether they expand or not. emailed to oira_submission@ product engineers and experts; and (2) ASTM F1004–19 covers: ‘‘[p]roducts omb.eop.gov. promulgate consumer product safety known as expansion gates and Other comments, identified by Docket standards for durable infant and toddler expandable enclosures, or by any other 1 No. CPSC–2019–0014, may be products. These standards are to be name,’’ (section 1.2, emphasis added). submitted electronically or in writing: ‘‘substantially the same as’’ the Both expandable gates and non- Electronic Submissions: Submit applicable voluntary standards or more expandable gates may serve as barriers electronic comments to the Federal stringent than the voluntary standard if that are intended to be erected in an eRulemaking Portal at: http:// the Commision concludes that more opening, such as a doorway, to prevent www.regulations.gov. Follow the stringent requirements would further the passage of young children. Both instructions for submitting comments. reduce the risk of injury associated with expandable enclosures and non- The CPSC does not accept comments the product. The term ‘‘durable infant or expandable enclosures may serve as submitted by electronic mail (email), toddler product’’ is defined in section barriers intended to completely except through www.regulations.gov. 104(f)(1) of the CPSIA as ‘‘a durable surround an area or play-space to The CPSC encourages you to submit product intended for use, or that may be confine young children. Similarly, all electronic comments by using the reasonably expected to be used, by children’s gates and enclosures, whether Federal eRulemaking Portal, as children under the age of 5 years.’’ 1 Gates or enclosures for non-domestic use (such described above. ‘‘Gates and other enclosures for as commercial or industrial), and those intended for Written Submissions: Submit written confining a child’’ are specifically pets only, are not covered under the scope of ASTM submissions in the following way: Mail/ identified in section 104(f)(2)(G) of the F1004–19.

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they expand or not, can be removed by designer metal gates can cost as much a gate, while two were associated with older persons who are able to operate as $430. Retail prices for enclosures and an enclosure. Fifteen of the 19 the locking mechanism. products that can operate either as an decedents drowned, 13 in a backyard CPSC staff’s review of enclosures enclosure or gate range from $74 to pool, one in a backyard hot tub, and one shows that all enclosures are $585, with the less expensive products in a 5-gallon bucket of water inside the expandable. Staff’s review of gates tending to be made of plastic, and the house. In these incidents, the decedents showed that there some non- more expensive products tending to be managed to get past the gate/enclosure expandable, fixed-sized gates available made of wood.3 Gates supplied by when it was left open or was opened for sale.2 However, most of the gates and home-based manufacturers average somehow, without the caregiver’s enclosures sold in the United States that $200, although fabric gates are less knowledge (10 incidents); the gate/ are intended for children expand expensive ($44 on average), and wooden enclosure was knocked down or pushed because they vary in width (for gates) or gates with iron spindles are more out by the decedent due to incorrect or shape (enclosures). CPSC staff’s review expensive ($525 on average). unsecured installation (4 incidents); or of hazard patterns indicates that all the decedent climbed over the gate/ children’s gates and enclosures present III. Incident Data enclosure (1 incident). The decedents the same hazards, whether they expand CPSC staff reviewed incident data ranged in age from 9 months to 3 years. or not. These hazards include injuries associated with children’s gates and Of the remaining four of 19 total caused by hardware-related issues, slat enclosures as reported through the deaths reported: An 8-month-old was problems, poor quality materials and Consumer Product Safety Risk found trapped between a mattress and finish, design issues, and installation Management System (CPSRMS).4 Staff an expansion gate in a recreational problems. Accordingly, the proposed also reviewed national injury estimates, vehicle; a 23-month-old was trapped CPSC standard addresses all children’s discussed below. Although these under a TV that fell on him when he gates and enclosures intended for products are intended for use with was hanging on the edge of a safety gate confining a child, including non- young children between the ages of 6 that was secured to the TV stand with expandable, fixed-sized gates and months and 24 months, interaction with a rope; a 20-month-old was entrapped enclosures. the gates and enclosures with older between a wall and a repaired/modified Gates and enclosures may be made of siblings and adult caregivers is a safety gate when the gate partially a wide range of materials: plastic, metal, foreseeable use pattern, and adults are detached from the wall; and a 2-year-old wood, cloth, mesh, or combinations of required to install such products got his neck entrapped between two several materials. Gates typically have a properly to prevent injuries. CPSC staff safety gates set up in a stacked means of egress that allows adults to reviewed the incident data involving configuration. pass through them; but some enclosures older children and adults to determine B. Nonfatalities (i.e., some self-supporting barriers have hazard patterns; however, only injuries The Commission is aware of a total of egress panels that resemble gates) also sustained by children younger than 5 417 nonfatal incidents related to safety have a means of egress. Gates may be years of age were included in the gates and enclosures that reportedly hardware-mounted, pressure-mounted, incident data reported for the proposed occurred between January 1, 2008 and or both. Hardware-mounted gates rule. The Commission is aware of a total October 31, 2018. Of these, 108 generally require screws and cannot be of 436 reported incidents related to incidents reported an injury to a child removed without tools. Pressure- gates and enclosures that occurred younger than 5 years of age. mounted gates attach like a pressure-fit between January 1, 2008 and October Three of the injuries reportedly curtain rod, using pressure on each end 31, 2018. Of the 436 incidents, 394 were required hospitalization and two to hold the gate stable; they are intended associated with the use of a gate, while additional injuries needed overnight for consumers who prefer to be able to 42 were associated with an enclosure. observation at a hospital. Among the move their gate, or who do not want to Nineteen of the incidents reported a hospitalized were a 2-year-old and an permanently mark their walls. Mounting fatality; 108 of the 417 nonfatal 18-month-old, both suffered a near- cups can be attached to one or more incidents reported an injury. Because drowning episode, and another 2-year- locations, and the gate can be removed, reporting is ongoing, the number of old who ended up in a coma due to a as needed, or moved to other locations. reported fatalities, nonfatal injuries, and fall when she pushed through a safety non-injury incidents may change in the B. Market Description gate at the top of stairs. Of the two future. Approximately 113 firms supply gates children who were held at a hospital for and enclosures to the U.S. market. The A. Fatalities overnight observation, one fell down vast majority of suppliers to the U.S. The Commission is aware of 19 deaths stairs when a safety gate collapsed, and market are domestic (109 firms). Of that occurred between January 1, 2008 the other swallowed a bolt or screw that these, 83 appear to be very small, home- and October 31, 2018. Seventeen of the liberated from a gate. Fifteen additional children were based domestic manufacturers. deaths were associated with the use of Approximately 10.86 million gates/ reported to have been treated and released from a hospital emergency enclosures were in use in U.S. 3 Some of the enclosures designed for daycare households with children under the age centers and preschools can run above $1,000 with department (ED). Their injuries of 5 in 2013, according to the CPSC’s all the specialty extensions. included: (a) finger fractures, 4 The CPSC databases searched were the In-Depth 2013 Durable Nursery Product Exposure amputations, and/or lacerations usually Investigation (INDP) file, the Injury or Potential from a finger getting caught at the hinge; Survey (DNPES). Injury Incident (IPII) file, and the Death Certificates Gates and enclosures vary widely in (DTHS) file. These reported deaths and incidents and (b) near-drowning, poison price. Plastic pressure gates can be are neither a complete count of all that occurred ingestion, arm fracture, thermal burn, purchased for as little as $10, but during this time period nor a sample of known head injury, or contusions. probability of selection. However, they do provide Among the remaining injury reports, a minimum number of deaths and incidents 2 The vast majority of non-expandable, fixed-size occurring during this time period and illustrate the some specifically mentioned the type of gates are sold by home-based manufacturers with circumstances involved in the incidents related to injury, while others only mentioned an very low sales volumes. children’s gates and enclosures. injury, but no specifics about the injury.

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Head injuries, concussions, teeth • Injury—almost 10 percent of the problems with the design of the gate or avulsions, sprains, abrasions, impact injuries occurred when a child enclosure. The reported problems were contusions, and lacerations were some fell down a flight of steps and hit a with: of the common injuries reported. safety gate at the bottom of the stairs: Æ The opening size between slats or The remaining 309 incidents reported Æ Injured body part—head (40%), enclosure panels that allowed a child to that no injury had occurred or provided face (21%), and mouth (10%). get their limbs or head entrapped; no information about any injury. Æ Injury type—lacerations (28%), Æ the pinch-point created during the However, some of the descriptions internal organ injury (23%), and opening and closing action of the door regarding the incidents indicated the contusions/abrasions (20%). on the gate or enclosure; potential for a serious injury or even Most of the injured victims were Æ a specific design, which created a death. treated and released (97%). foot-hold that a child could use to climb C. National Injury Estimates IV. Hazard Pattern Identification over the safety gate; or Æ a specific design that posed a trip CPSC staff also reviewed injury CPSC staff reviewed 436 reported hazard when the gate was in the open estimates from the National Electronic incidents (19 fatal and 417 nonfatal) to position. Injury Surveillance System (NEISS), a identify hazard patterns associated with statistically valid injury surveillance the use of children’s gates and Nineteen injuries were in this category, system.5 NEISS injury data are gathered enclosures. Staff grouped the hazard including three fractures of the finger from EDs of hospitals selected as a patterns into three categories: Product- and one severed fingertip, all treated at a hospital ED. probability sample of all the U.S. related, non-product-related, and • hospitals with EDs. CPSC staff found an undetermined. Most of the reported Installation problems: Of the 436 estimated total of 22,840 injuries problems (94%) were product-related. incident reports, 20 (5%) indicated (sample size=820, coefficient of problems with installation due to: The categories and subcategories (in Æ variation=0.10) related to children’s unclear installation instructions; order of descending frequency) are: Æ gates and enclosures that were treated in mismatched dimensions between U.S. hospital EDs over the 10-year A. Product-Related the safety gate and the doorway/hallway period 2008–2017. There was no • Hardware issues: Of the 436 opening; or statistically significant trend observed incidents, 163 (37%) reported some sort Æ unknown reasons; in these cases, over the entire 2008–2017 period. of hardware-related problems. These the gate/enclosure was reported to have NEISS data for 2018 will be reviewed problems were due to: been installed, but was somehow prior to the issuance of a final rule. Æ lock/latch hardware (e.g., lock or ‘‘pushed out’’ or ‘‘pulled down.’’ No fatalities were reported through latch breaking, not latching correctly, Four drowning fatalities were reported NEISS. About 19 percent of the injured opening too easily, or getting stuck) in this category. In addition, there were victims were less than a year old; 40 Æ hinge hardware (mostly breaking four nonfatal injuries: One a percent were at least a year old, but less and causing the gate to fall off) hospitalization of a comatose child; than 2 years of age; and another 41 Æ mounting hardware (mostly another child treated and released from percent were at least 2, but less than 5 breaking and causing gate to fall off), or a hospital ED following a near-drowning Æ years of age. NEISS injury descriptions other hardware such as a slide episode; and the remaining two, are brief and focus more on the injury guide or a swing-control clip (breaking relatively minor laceration/contusion than the scenario-specific details. or coming loose). injuries. Therefore, a detailed hazard pattern These hardware failures were associated • Miscellaneous other issues and characterization, as conducted for with 38 injuries, such as contusions, consumer comments: Seven of the 436 incidents reported through CPSRMS, is lacerations, head injuries, and two incident reports (2%) included three not feasible. However, based on the fractures; five of the injuries were complaints about an ineffective recall limited information available, CPSC treated in a hospital ED, and one needed remedy, one complaint about poor staff determined that some of the most overnight observation at a hospital. product packaging, and three consumer frequent NEISS injury characteristics • Slat problems: Of the 436 incidents, concerns about the safety of a specific were as follows: 107 (25%) reported slats breaking or design. There was one unspecified • Hazard—falls (57%) and impact on detaching from the safety gate or injury in this category. gate/enclosure (31%). Most of the falls enclosure. Sixteen injuries were • Instability issues in enclosures: occurred when: reported in this category, resulting in Three of the 436 incidents (<1%) Æ A child successfully climbed over contusions/abrasions or lacerations. reported problems with flimsy and/or the barrier and (usually) fell down a Once the slat(s) broke, the child either unstable enclosures. Two laceration/ flight of steps; when a child got injured on it, fell forward through contusion injuries were reported in this unsuccessfully attempted to climb over the gap created, or lost balance and fell category. the barrier; or a child-carrying-adult backwards. One of the injuries was • Multiple problems from among the tripped on a gate/enclosure and treated at a hospital ED. above: Twenty of the 436 incident dropped the child; • Poor quality material and finish: Of Æ reports (5%) described two or more gates failed to remain upright and the 436 incidents, 50 (11%) reported problems from the preceding product- locked; or problems with small parts liberating, related issues. Two minor injuries were Æ a child managed to defeat the splintered welding, sharp edges and reported in this category.6 barrier by crawling/sliding under, or protrusions, rails bending out of shape, ‘‘getting around’’ the barrier in an fabric/mesh panels sagging, and poor 6 Redistributing these 20 complaints among the unspecified manner. quality of stitching on fabric panels. other pertinent subcategories within the product- Eighteen injuries, mostly lacerations related issues does not alter the ranking of the listed 5 According to the NEISS publication criteria, to and abrasions, were reported in this subcategories. However, the redistribution would derive a reportable national estimate, an estimate category. result in the within-subcategory incident numbers must be 1,200 or greater, the sample size must be • adding up to more than the total number of incident 20 or greater, and the coefficient of variation must Design issues: Of the 436 incident reports. To prevent that, the 20 incidents were be 33 percent or smaller. reports, 42 (10%) indicated some grouped in a separate subcategory.

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B. Non-Product-Related of gates and enclosures and the clarity • Exposed coil springs; • Eleven of the 436 incident reports of the standard. Revisions made during Scissoring, shearing, and pinching; this period included provisions to • Labeling; (3%) described non-product-related • Lead in paint; and issues, such as incorrect use of the address foot-pedal actuated opening • systems, warnings, evaluation of all Protective components. product, or the child managing to Performance Requirements and Test bypass the barrier altogether. manufacturer’s recommended use positions, test fixture improvements, Methods. These sections contain Specifically: performance requirements specific to • entrapment in openings along the side Four incidents reported the child children’s gates and enclosures and the climbing over the gate/enclosure; of the gate, lead-containing substances • in surface, along with other minor test methods that must be used to assess Three incidents reported caregiver conformity with such requirements. missteps allowing the gate/enclosure clarifications and editorial corrections. Beginning in 2014, CPSC staff worked These requirements include: not to be secured in place; • Completely bounded openings: • closely with ASTM to address identified Three incidents reported misuse of Openings within the gate or enclosure, hazards and to strengthen the voluntary gates in a hazardous manner; and and completely bounded openings • standard and improve the safety of One report involving a gate between the gate and the test fixture, children’s gates and enclosures in the previously repaired/modified and shall not permit the complete passage of U.S. market. ASTM made revisions structurally compromised. the small torso probe when it is pushed through several versions of the standard Eight deaths are included in this into the opening with a 25-pound force. (ASTM F1004–15, ASTM F004–15a, category: Four due to drowning, three This requirement is intended to address ASTM F1004–16, ASTM F1004–16a, due to entrapments, and one due to a incidents where children were found ASTM F1004–16b, and ASTM F1004– TV tip over. Among the three injuries, with their heads entrapped after having 18) to address hazards associated with one required hospitalization following a pushed their way into gaps created bounded openings, slat breakage/slat near-drowning episode, and one between soft or flexible gate and connection failures, mounting/hinge fractured arm was treated at a hospital enclosure components, and between the hardware issues, latch/lock failures, ED; the third injury was a concussion of gate and the sides of passageway to be pressure gate push-out forces, and the forehead. blocked off, e.g., door frame or wall. warning labels and instructions. The • C. Undetermined Height of sides: The vertical current voluntary standard is ASTM distance from the floor to the lowest Thirteen of the 436 incident reports F1004–19, which was approved on June point of the uppermost surface shall not (3%) fell into the undetermined 1, 2019. be less than 22 inches when measured category. There was insufficient B. Description of the Current Voluntary from the floor. The requirement is information on the scenario-specific Standard—ASTM F1004–19 intended to prevent intended occupants details for CPSC staff to determine from being able to lean over, and then definitively whether the product failed ASTM F1004–19 includes the following key provisions: Scope (section tumble over the top of the gate. or user error resulted in the incidents. • Vertical strength: After a 45-pound 1), Terminology (section 3), General Seven drowning deaths were reported in force is exerted downward along the Requirements (section 5), Perfomance this category. Among the five nonfatal uppermost top rail, edge, or framing Requirements (section 6), Test Methods injuries, one was a hospitalization due component, gates and enclosures must (section 7), Marking and Labeling to near-drowning, two were treated at a not fracture, disengage, fold nor have a (section 8), and Instructional Literature hospital ED for poisonous ingestion and deflection that leaves the lowest point of (section 9). burn, respectively, and two were minor the top rail below 22 inches from the injuries. Scope. This section states the scope of the standard, and includes products ground. For gates, the 45-pound vertical D. Product Recalls known as expansion gates and test force is applied five times to the expandable enclosures, or by any other mid-point of the horizontal top rail, CPSC staff reviewed recalls involving surface or edge of each gate (or each of children’s gates and enclosures from name, and that are intended for young children age 6 months through 24 the top points of a gate that doesn’t have January 2008 to December 2018. During a horizontal top edge). This test is that period, there were five recalls months. ASTM has stated that the standard applies to all children’s gates, carried out with the gate installed at involving baby gates and one recall both the maximum and minimum involving an enclosure. The total including non-expandable, fixed-sized gates and enclosures. opening widths recommended by the number of units recalled was 1,318,180. manufacturer. For enclosures, the 45- The recalls involved fall, entrapment, Terminology. This section provides definitions of terms specific to the pound force is applied to every other tripping, and laceration hazards to uppermost rail, surface, or edge and children. There were a total of 215 standard. General Requirements. This section every other top joint of the enclosure. incidents reported, of which 13 resulted This requirement is intended to check in injuries. addresses numerous hazards with several general requirements, most of that gates and enclosures retain their V. Voluntary Standard—ASTM F1004 which are also found in the other ASTM intended occupants even when children juvenile product standards. ASTM hang from or attempt to climb up the A. History of ASTM F1004 gates. F1004–19 has requirements to address • The voluntary standard for gates and the following safety issues common to Bottom spacing: The space between enclosures was first approved and many juvenile products. The general the floor and the bottom edge of an published in 1986 (ASTM F1004–86, requirements included in this section enclosure or gate shall not permit the Standard Consumer Safety address: complete passage of the small torso Specification for First-Generation • Wood parts; probe when it is pushed into the Standard Expansion Gates and • Screws; opening with a 25-pound force. This Expandable Enclosures). Between 1986 • Sharp edges or points; requirement is intended to address and 2013, ASTM F1004 underwent a • Small parts; incidents where children were found series of revisions to improve the safety • Openings; with their heads entrapped after having

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pushed their way, feet first, into gaps 20 lb.) This requirement is intended to place. Without [wall cups] child can created between the gate and the floor. prevent the intended occupant from push out and escape. • Configuration of uppermost edge: being able to dislodge the gate and gain These warnings are also required on Partially bounded openings at any point access to a hazardous area the gate was the retail packaging unless they are in the uppermost edge of a gate or meant to protect them from. visible in their entirety to consumers on enclosure that is greater than 1.5 inches • Locking devices: Locking devices the gate or enclosure at point of in width and more than 0.64 inches in shall meet one of two conditions: (1) If purchase. depth must not allow simultaneous the lock is a single-action latching VI. Adequacy of ASTM F1004–19 contact between more than one surface device, the release mechanism must Requirements on opposite sides of a specified test require a minimum force of 10 lb to template. The template was activate and open the gate, or else (2) The Commission concludes that the dimensioned so as to screen out non- the lock must have a double action current voluntary standard, ASTM hazardous openings with angles that are release mechanism. This requirement is F1004–19, sufficiently addresses many either too narrow to admit the smallest intended to prevent the intended of the general hazards associated with user’s neck, or too wide to entrap the occupant being contained by the gate the use of children’s gates and largest user’s head. This requirement is from being able to operate the locking enclosures, such as wood parts, sharp intended to address head/neck mechanism. points, small parts, lead in paint, entrapment incidents reported in the • Toys: Toy accessories shall not be scissoring, shearing, pinching, openings, ‘‘V’’ shaped openings common in older, attached to, or sold with, a gate. Toy exposed coil springs, locking and ‘‘accordion style’’ gates. accessories attached to, removable from, latching, and protective components. • In addition to the general Latching/locking and hinge or sold with an enclosure, shall meet requirements, ASTM F1004–19 contains mechanisms: This hardware durability applicable requirements of specification performance requirements and test test requires egress panels on gates and ASTM F963 ‘‘Consumer Safety methods specific to gates and enclosures to be cycled through their Specification for Toy Safety.’’ fully open and closed positions 2,000 enclosures. The Commission determines • Slat Strength: This test verifies that times. Pressure gates without egress that the current voluntary standard no wood or metal vertical members panels are cycled through installation addresses the primary hazard patterns (slats) completely break or either end of and removal 550 times. The 2,000 cycles identified in the incident data. This the slats completely separate from the tests the durability of gates or section discusses the hazard patterns gate or enclosure when a force of 45 enclosures having egress panels which that account for the reported incidents pounds is applied horizontally. The test are expected to be operated twice a day and injuries and how the current is conducted on 25 percent of all gate through the lifetime of the product. voluntary standard addresses each. To slats, excluding adjacent slats. This Pressure gates without egress panels are assess the adequacy of ASTM F1004–19, requirement is intended to check that intended to be installed in locations not CPSC staff considered all 436 reported gates and enclosures retain their accessed as frequently, and thus, are incidents (19 fatal and 417 nonfatal) to structural integrity when children push tested through a reduced 550 cycle test. identify hazard patterns associated with or pull on the gate or enclosure slats. This pre-conditioning test is intended to • children’s gates and enclosures. address incidents involving failures of Label testing: Paper and non-paper latches, hinges, and hardware. labels (excluding labels attached by a A. Hardware Issues • Automatic closing system: seam) shall not liberate without the aid This hazard is associated with 163 Immediately following the cyclic of tools or solvents. Paper or non-paper incidents (37%). The CPSC incident preconditioning test, an egress panel attached by a seam shall not liberate data show that hardware failures, (e.g., marketed to have an automatic closing when subjected to a 15-lb pull force. broken hinges, locks, and mounting feature must continue to automatically Warning, Labeling and Instructions. brackets) led to contusions, lacerations, close when opened to a width of 8 These provisions specify the marking, head injuries, and fractures. To identify inches as well as when it is opened to labeling and instructional literature gates and enclosures that have hardware its maximum opening width. This requirements that must appear on or issues, such as those found in the requirement is intended to check that a with each gate or enclosure. incident data, ASTM F1004–19 provides • gate fully closes and locks as it is All gates and enclosures must a latching/locking and hinge expected and advertised to do, thereby include warnings on the product about performance test that cycles gates reducing the likelihood of an occupant the risk of serious injury or death when through 2,000 complete ‘‘open and accessing potentially hazardous a product is not securely installed, must closing’’ cycles and 550 installation/ conditions on the other side of an warn the consumer to never use the gate removal cycles for pressure gates unintentionally unsecured gate. with a child who is able to climb over without egress panels. The Commission • Push-out force strength: Five test or dislodge the gate, and to never use concludes that this performance locations are specified for this test: the the gate to prevent access to a pool. requirement adequately addresses the • four corners of the gate as well as the Pressure-mounted gates with a hazard pattern associated with hardware center. A horizontal push-out force is single-action locking mechanism on one failures. applied five times to each of the test side of the gate must include the locations and the maximum force following warning: Install with this side B. Slat Problems applied before the gate pushes out of the AWAY from child. This hazard is associated with 107 test fixture is recorded and averaged for • Enclosures with locking or latching incidents (25%). The CPSC incident each test location (up to a maximum of mechanisms must include the following data show that problems occurred when 45 lb). The maximum force of 45 lb was warnings: Use only with the [locking/ slats broke or detached from gates or selected because it simulates the effects latching] mechanism securely engaged. enclosures, resulting in contusions and of the largest intended occupant’s • Gates that do not pass the push-out lacerations. The ASTM F1004–19 weight. The average push-out force shall test requirements must include the standard includes a performance exceed 30 lb in all five test locations following warning on the product: You requirement that slats must withstand a (and each individual force shall exceed MUST install [wall cups] to keep gate in 45-pound force, which is the pulling

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force of the largest intended occupant. upright in the opening. ASTM F1004–19 installed with sufficient side pressure, The Commission concludes that this includes several provisions requiring particularly as they are not expected to performance requirement adequately that warnings, labeling, and instructions have or use force gauges during addresses the hazard pattern associated be easy to read and understand for installation. Visual indicators may also with slat failures. proper installation of gates. In addition, help inform consumers during the ASTM F1004–19 provides that all gates lifecycle of the product, when C. Material and Finish must meet a 30 lbs of push-out force at readjustment is necessary. Accordingly, This hazard is associated with 50 five test locations. the Commission seeks comment incident reports (11%). The CPSC The Commission agrees that the regarding the use and feasibility of incident data show that problems requirement to meet the 30-lb push-out visual side pressure indicators for occurred with small parts breaking free force for all gates will improve pressure-mounted gates and whether to become potential choking hazards; children’s safety, if the gate is installed such indicators would be effective in splintering wood, or welding, sharp correctly. The ASTM F1004–19 addressing installation failures. edges, protrusions, rails bending out of standard allows the use of mounting shape; fabric/mesh panels sagging, and hardware or wall cups to meet the 30- F. Miscellaneous poor quality stitching on fabric panels. lb push-out force requirement. Although Seven of the incidents (2%) raised ASTM F1004–19 (General the Commission determines that these miscellaneous issues, including three Requirements) contains many provisions generally address the complaints about an ineffective recall requirements that address these issues, installation hazard patterns because remedy, one complaint about poor such as sharp points or edge, small they help clarify the requirements for product packaging, and three consumer parts, and bans on the use of transverse/ proper installation, ASTM may be able concerns about the safety of a specific lateral joints in all wood components. to make improvements in the future to design. The issues are not addressed in ASTM F1004–19 also tests openings increase the consumer’s awareness of ASTM 1004–19, but they do not relate within gates or enclosures and the importance of proper installation of directly to improving the safety of gates completely bounded openings, as well pressure-mounted gates. or enclosures. Accordingly, the as bottom spacing between the bottom Currently, the ASTM standard does Commission does not recommend of the gate or enclosure and the floor, not require pressure-mounted gates to changes to the ASTM standard to which also help reduce issues with rails provide the consumer with reliable address these issues. or flexible barrier materials bending out feedback indicating that the gate has G. Enclosure Instability of shape. The Commission concludes been installed correctly with enough that these performance requirements side pressure to prevent a child from A few (<1%) incident reports came adequately address the hazard pattern knocking it over. Manufacturers’ from consumers who described associated with material and finish instructions for some pressure-mounted problems with flimsy or unstable failures. gates provide little or no clear direction enclosures. ASTM F1004–19 contains for consumers to know when the gate is several requirements that help address D. Design Issues installed correctly or will stay in place the product durability issues reported in This hazard is associated with 42 after several uses. Some of the designs these enclosure incidents. The vertical incident reports (10%). The CPSC require the user to push or pull on the strength requirement was expanded to incident data show that problems gate to have a feel that the gate is test not only the joints between the occurred when an aspect of the design properly installed (e.g. ‘‘turn the nut enclosure panels, but also to test the top of the gate or enclosure failed, such as . . . until the gate is snug’’; ‘‘turn the rails of the panels themselves. the opening size between slats or panels hand wheels until firm tension is Additionally, the cyclic locking/latching that allowed for entrapments, moving achieved’’); or make precise tests whether the hardware in these gate components causing scissoring or measurements for installation (e.g., the products is durable and capable of pinching issues, features that were able distance between the gate frame and the withstanding regular use. Many of the to be used as footholds, or sections that wall to ensure both sides are equally general requirements, such as those posed a trip hazard when the gate was spaced). These tasks are often subjective concerning sharp edges, small parts, in an opened position. ASTM F1004–19 or cumbersome to guarantee proper wood parts, and protective components, contains several performance tests that installation. also help to address issues in this specifically address entrapments in CPSC staff intends to collaborate with category. The Commission concludes openings, including the completely ASTM in the future to improve the that these performance requirements are bounded openings and bottom spacing installation of pressure-mounted gates adequate to address the hazard pattern tests. The general openings and with the use of visual side-pressure associated with unstable enclosures. scissoring, shearing, and pinching indicators. Because pressure-mounted H. Warnings and Instructional performance requirements also help gates rely on friction force to resist a Literature address hazards related to openings. push-out force applied to the gate, side- The Commission concludes that these pressure force is a key component to the ASTM F1004–19 includes updated performance requirements adequately gate performance. The more side- warning format requirements that are address the hazard pattern associated pressure force exerted by the gate to the aligned with ASTM’s Ad Hoc Wording with design issues. wall/door opening, the more resistance Task Group recommendations. The Ad to push-out forces. Effective visual side- Hoc Task Group harmonized the E. Installation Problems pressure indicators would make it more wording and language used across This hazard is associated with 20 likely that test technicians install the nursery product standards. This task incidents (5%). The CPSC incident data gate with sufficient side-force pressure group also developed recommendations show that problems occurred when and could provide consistency and for harmonizing warning formats across there were unclear instructions, validity to the test results. Equally standards. CPSC staff has worked mismatched dimensions between gates important, visual side-pressure closely with this group to develop ad and the openings they were meant to fit indicators could provide a way for hoc recommendations that are based into, and failure of the gate to remain consumers to know when their gate is largely on the requirements of the ANSI

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Z535.4, American National Standard for behavior. In addition, the Commission consumers’ awareness of the importance Product Safety Signs and Labels. determines that the instructional of proper wall cup installation. The Commission expects that the literature, also aligned with the Ad Hoc ASTM F1004–19 currently requires a ASTM F1004–19’s labeling Task Group’s wording design or form warning statement about the hazard of requirements will reduce requirements, improves the required installing gates without wall cups. This inconsistencies currently seen on gates warning statements in the instructions. warning statement is included within and enclosures, and will address However, the Commission believes that numerous warning format issues to additional collaboration with ASTM the general warning label; however, the capture consumer attention better, regarding the placement and wording of label can have as many as six different improve readability, and increase the warning label on gates for wall cups required messages in one location: hazard perception and avoidance on pressure-mounted gates may improve

As discussed, there is no objective standard, ASTM F1004–19, to the the hazards identified in incidents measure for consumers to confirm the performance requirements of other associated with children’s gates and correct installation of the gate. CPSC standards that address children’s gates enclosures. staff intends to work with ASTM to and enclosures including: VIII. Incorporation by Reference improve the installation of pressure- • The European Standard, EN mounted gates with the use of visual 1930:2011/A1, Child use and care The Commission is proposing to side-pressure indicators to provide an articles—Safety barriers—Safety incorporate by reference, ASTM F1004– objective way for test technicians and requirements and test methods (EN 19, without change. The Office of the consumers to know when their gate is standard); and Federal Register (OFR) has regulations installed with sufficient side pressure. • The Canadian regulation, SOR/ concerning incorporation by reference. 1 In addition, although some pressure- 2016–179, Expansion Gates and CFR part 51. These regulations require gate manufacturers generally instruct Expandable Enclosures Regulations that, for a proposed rule, agencies consumers that wall cups are required if (SOR standard). discuss in the preamble to the NPR they need to install a pressure-mounted CPSC staff determined that, for most ways that the materials the agency gate at the top of the stairs, consumers of the relevant performance proposes to incorporate by reference are may not be aware that wall cups need requirements, the SOR standard refers to reasonably available to interested to be installed if the gate is used in other an older version of ASTM F1004, persons, or explain how the agency locations, or that wall cups need to be published in 1986 (ASTM F1004–86), worked to make the materials reinstalled if the gate is moved to a which has been superseded. Staff reasonably available. In addition, the different location. Additional compared the applicable performance preamble to the proposed rule must collaboration with ASTM is needed to requirements of the SOR standard and summarize the material. 1 CFR 51.5(a). assess whether a wall cup warning label EN standard to the current ASTM F1004 In accordance with the OFR’s statement that is separate and distinct standard, ASTM F1004–19, including requirements, section V.B of this from the general warning label, and the following requirements: Side height preamble summarizes the provisions of placed conspicuously on the top rail of and vertical load, footholds, head ASTM F1004–19 that the Commission the gate, may increase the likelihood of entrapment, latch/oock conditioning proposes to incorporate by reference. the consumer noticing, comprehending, test and automatic closing system, ASTM F1004–19 is copyrighted. By and complying with the warning. scissoring, shearing, and pinching, permission of ASTM, the standard can Accordingly, the Commission seeks entanglement by protruding parts, neck be viewed as a read-only document comment on whether the placement and entrapment in V shaped opening, during the comment period on this NPR, wording of the wall cup warning should packaging, construction and structural at: http://www.astm.org/cpsc.htm. be modified, and whether such changes integrity, push-out test, hazardous Interested persons may also purchase a would be effective in addressing materials, flammability, and protective copy of ASTM F1004–19 from ASTM, installation failures. components. CPSC staff’s review through its website (http:// VII. International Standards showed that, for all of the requirements, www.astm.org), or by mail from ASTM the current ASTM F1004–19 standard is International, 100 Bar Harbor Drive, CPSC staff reviewed the performance adequate, or more stringent than, the P.O. Box 0700, West Conshohocken, PA requirements of the current ASTM international standards in addressing 19428; http://www.astm.org.

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Alternatively, interested parties may B. Small Entities to Which the Proposed compliance may be significant.8 Several inspect a copy of the standard at CPSC’s Rule Would Apply firms indicate that the cost of a redesign Division of the Secretariat. could be between $400,000 and $1 CPSC staff identified 113 firms million, depending on the materials IX. Effective Date supplying gates and enclosures to the used to construct the product. The The Administrative Procedure Act U.S. market. The vast majority of changes in the requirements for (APA) generally requires that the suppliers are domestic (109 firms). The instruction manuals and labeling are not effective date of a rule be at least 30 U.S. Small Business Administration expected to be significant for these days after publication of the final rule (SBA) size guidelines identify any firms. Typically, these firms have (5 U.S.C 553(d)). The Commission manufacturer as ‘‘small’’ if it employs already developed and provided proposes that the standard become fewer than 500 employees. Out of 113 warning labels and instruction manuals effective 6 months after publication of a firms, 83 appear to be very small, home- with their products. For two of the three 7 final rule in the Federal Register. based domestic manufacturers. They small manufacturers of noncompliant Barring evidence to the contrary, the typically have only one or two gates in gates, third party testing costs are not Commission generally considers 6 their product line and supply few other expected to exceed 1 percent of revenue months to be sufficient time for products. They generally also have low because they have high revenue levels suppliers to come into compliance with sales volumes. None of the home-based and few gate models in their product a new standard, and this is typical for manufacturers appears to supply lines. The revenue level for the third other CPSIA section 104 rules. Six enclosures. firm is unknown. months is also the period that the An additional 30 firms that are larger For the three domestic importers/ Juvenile Products Manufacturers than the home-based suppliers supply wholesalers that supply gates and Association (JPMA) typically allows for gates and/or enclosures; 26 of the 30 are enclosures that do not comply with the products in their certification program domestic. These firms include voluntary standard, the cost of ensuring to shift to a new standard once that new manufacturers and importers. Twenty- compliance with the proposed standard standard is published. The Commission three of the 30 firms, although not as could be significant, depending upon is not aware of any information small as the home-based suppliers, are the extent of the changes required, and suggesting that 6 months is not an still small domestic entities, based on the response of their supplying firms. appropriate time frame for suppliers to SBA guidelines for the number of Finding another supplier, or dropping come into compliance. Therefore, employees in their North American the product line entirely, are options for juvenile product manufacturers are Industry Classification System (NAICS) importers/wholesalers if their existing accustomed to adjusting to new codes. These firms typically have eight supplier does not make the necessary standards within this time frame. The to nine gate models in their product product changes. The impact on a given Commission believes that most firms lines and have much larger sales firm will depend on the revenue should be able to comply with the 6- volumes than the home-based suppliers. generated by the product line, the cost month time frame, but asks for Of the 23 small domestic suppliers, 13 of finding an alternative supplier, and comments, particularly from small supply only gates, six supply only the variety of other products in their businesses, regarding the feasibility of enclosures, and four firms supply gates product line. Third party testing costs complying with the proposed 6-month and enclosures. The remaining four may also have a significant impact. effective date. We also propose a 6- firms are foreign manufacturers. However, CPSC staff was unable to find revenue information for two firms, and month effective date to the amendment C. Costs of Proposed Rule To Be to part 1112. testing costs could exceed 1 percent of Incurred by Small Manufacturers revenue for the third firm. X. Assessment of Small Business CPSC staff is aware of 106 small, Additionally, it is likely that all 83 of Impact domestic firms currently marketing the very small, home-based suppliers A. Introduction gates and enclosures in the United identified would be significantly impacted, regardless of whether they The Regulatory Flexibility Act (RFA) States. It appears unlikely that there would be a significant economic impact require modifications to meet the requires that proposed rules be performance requirements of the reviewed for their potential economic on the 17 suppliers (12 manufacturers and 5 importers) of compliant gates and proposed standard. Most of the firms are impact on small entities, including likely to leave the market because their small businesses. Section 603 of the enclosures. These suppliers are already compliant with the current ASTM revenue from the sale of gates does not RFA requires that agencies prepare an appear to be sufficiently large to justify initial regulatory flexibility analysis voluntary standard (ASTM F1004–18) and are likely to remain compliant with third party testing costs and the cost of (IRFA) and make it available to the developing warning labels and public for comment when the general the new standard. However, based upon current information, the Commission instructional literature if these have not notice of proposed rulemaking (NPR) is been provided before. If confronted by published, unless the head of the agency cannot rule out a significant economic impact on six suppliers of noncompliant these costs, most of these very small, certifies that the rule will not have a home-based manufacturers could stop gates and enclosures and 83 home-based significant economic impact on a selling gates or go out of business. suppliers of gates. substantial number of small entities. The Commission seeks comments on Based on current information, the For the three domestic manufacturers the changes that may be required to Commission cannot rule out that of gates and enclosures that do not meet the voluntary standard, ASTM incorporating by reference ASTM comply with the voluntary standard, the F1004–19, and in particular, whether F1004–19 as a mandatory CPSC safety cost of bringing products into redesign would be necessary, and what standard would have a significant impact on a substantial number of small 7 These suppliers were identified online, and staff 8 Generally, we believe that impacts of less than entities involved in the manufacturing believes that there may be additional home-based one percent of a firm’s revenue are unlikely to be suppliers operating in the gates market on a very significant. We cannot rule out the possibility that or importing of children’s gates and small scale (possibly including some without an impacts of greater than one percent of revenue enclosures, online presence). could be significant for some firms in some cases.

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the associated costs are and the time instructional materials with their • A title for the collection of required to bring the products into products to develop them. information; compliance. The Commission also seeks The Commission seeks comments on • a summary of the collection of comments from individuals/firms the impact of the proposed rule on small information; familiar with various gates made by manufacturers and importers, in • a brief description of the need for home-based suppliers who can provide general, as well as alternative effective the information and the proposed use of additional information on the different dates, or any other alternatives that the information; styles of gates provided by home-based could mitigate the impact on small • a description of the likely versus non-home-based suppliers. The firms. When suggesting an alternative, respondents and proposed frequency of please provide specific information on Commission is particularly interested in response to the collection of the alternative, and the extent to which how these firms are likely to respond to information; it could reduce the impact. the proposed rule and the costs and • an estimate of the burden that shall time frame that would be required to XI. Environmental Considerations result from the collection of modify any product, if applicable. information; and Additionally, the Commission requests The CPSC’s regulations address • notice that comments may be information on the number of home- whether we are required to prepare an submitted to the OMB. based suppliers, and on the significance environmental assessment or an of gates sales specifically, to their total environmental impact statement. 16 In accordance with this requirement, revenue. CFR part 1021. Those regulations state the CPSC provides the following that certain categories of CPSC actions information: D. Alternatives normally have ‘‘little or no potential for Title: Safety Standard for Gates and affecting the human environment,’’ and Enclosures The Commission is proposing a 6- therefore, do not require an Description: The proposed rule would month effective date for the rule. A later environmental assessment or an require each gates and enclosure to effective date could reduce the environmental impact statement. 16 comply with ASTM F1004–19, economic impact on firms in two ways. CFR 1021.5(c)(1). Rules or safety Standard Consumer Safety First, firms would be less likely to standards that provide design or Specification for Expansion Gates and experience a lapse in production/ performance requirements for products Expandable Enclosures, with no importation, which could result if they are among the listed exempt actions. modifications. Sections 8 and 9 of are unable to comply and have their Thus, the proposed rule falls within the ASTM F1004–19 contain requirements products tested by a third party within categorical exemption. the required timeframe. Second, firms for marking, labeling, and instructional could spread costs over a longer time XII. Paperwork Reduction Act literature. These requirements fall period, thereby reducing their annual This proposed rule contains within the definition of ‘‘collection of costs, as well as the present value of information collection requirements that information,’’ as defined in 44 U.S.C. their total costs. Suppliers interviewed are subject to public comment and 3502(3). for the rulemaking indicated that 12–18 review by the Office of Management and Description of Respondents: Persons months might be necessary if a complete Budget (OMB) under the Paperwork who manufacture or import gates or product redesign were required. Reduction Act of 1995 (PRA; 44 U.S.C. enclosures. Additional time might also be necessary 3501–3521). Under 44 U.S.C. Estimated Burden: We estimate the for home-based suppliers that currently 3507(a)(1)(D), an agency must publish burden of this collection of information are not providing warning labels or the following information: under 16 CFR part 1239 as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN

Total Burden type Type of supplier Number of Frequency of Total annual Hours per burden respondents responses responses response hours

Labeling ...... Home-based manufacturers 83 2 166 7 1,162 Other Suppliers ...... 30 8 240 1 240

Labeling Total ...... 1,402 Instructional literature ...... Home-based manufacturers 83 2 50 100 8,300

Total Burden ...... 9,702

Our estimate is based on the approximately 15 hours to develop a labels are non-home-based following: new label; this translates to manufacturers and importers (30). These Two groups of firms that supply gates approximately 7 hours per response for are also mostly small domestic firms, and enclosures to the U.S. market may this group of suppliers. Therefore, the but are not home-based and do not need to modify their existing warning total burden hours for very small, home- operate at the low production volume of labels. The first are very small, home- based manufacturers is 7 hours per the home-based firms. For this second × × based manufacturers (83), who may not model 83 entities 2 models per group, all of whom have existing currently have warning labels on their entity = 1,162 hours. warning labels on their products and are gates (CPSC staff did not identify any The second group of firms supplying used to working with warning labels on home-based suppliers of enclosures). gates and enclosures to the U.S. market a variety of other products, we estimate CPSC staff estimates that it would take that may need to make some that the time required to make any home-based manufacturers modifications to their existing warning modifications now or in the future

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would be about 1 hour per model. Based $34.50 per hour = $286,350). Not all of injury unless the state requirement is on an evaluation of supplier product firms would incur these costs every identical to the federal standard. Section lines, each entity supplies an average of year, but new firms that enter the 26(c) of the CPSA also provides that 8 models of gates and/or enclosures; market would and this may be a highly states or political subdivisions of states therefore, the estimated burden fluctuating market. may apply to the CPSC for an exemption associated with labels is 1 hours per The non-home-based manufacturers from this preemption under certain model × 30 entities × 8 models per and importers likely are providing user circumstances. Section 104(b) of the entity = 240 hours. instruction manuals already with their CPSIA refers to the rules to be issued The total burden hours attributable to products, under the normal course of under that section as ‘‘consumer warning labels is the sum of the burden their activities. Therefore, for these product safety rules,’’ thus, implying hours for both groups of entities: Very entities, there are no burden hours that the preemptive effect of section small home-based manufacturers (1,162 associated with providing instructions. 26(a) of the CPSA would apply. burden hours) + non-home-based Based on this analysis, the proposed Therefore, a rule issued under section manufacturers and importers (240 standard for gates and enclosures would 104 of the CPSIA will invoke the burden hours) = 1,402 burden hours. We impose an estimated total burden to preemptive effect of section 26(a) of the estimate the hourly compensation for industry of 9,702 hours at a cost of CPSA when it becomes effective. the time required to create and update $334,719 annually. labels is $34.50 (U.S. Bureau of Labor In compliance with the PRA (44 XIV. Certification and Notice of Statistics, ‘‘Employer Costs for U.S.C. 3507(d)), we have submitted the Requirements (NOR) Employee Compensation,’’ December information collection requirements of Section 14(a) of the CPSA imposes the 2018, Table 9, total compensation for all this rule to the OMB for review. requirement that products subject to a sales and office workers in goods- Interested persons are requested to consumer product safety rule under the producing private industries: http:// submit comments regarding information CPSA, or to a similar rule, ban, standard www.bls.gov/ncs/). Therefore, the collection by August 7, 2019, to the or regulation under any other act estimated annual cost to industry Office of Information and Regulatory enforced by the CPSC, must be certified associated with the labeling Affairs, OMB (see the ADDRESSES section as complying with all applicable CPSC- requirements is $48,369 ($34.50 per at the beginning of this notice). × enforced requirements. 15 U.S.C. hour 1,402 hours = $48,369). No Pursuant to 44 U.S.C. 3506(c)(2)(A), 2063(a). Section 14(a)(2) of the CPSA operating, maintenance, or capital costs we invite comments on: • requires that certification of children’s are associated with the collection. The estimated burden hours products subject to a children’s product ASTM F1004–19 also requires required for very small, home-based safety rule be based on testing instructions to be supplied with the manufacturers to modify (or, in some conducted by a CPSC-accepted third product. Under the OMB’s regulations cases, create) warning labels; party conformity assessment body. (5 CFR 1320.3(b)(2)), the time, effort, • the estimated burden hours Section 14(a)(3) of the CPSA requires and financial resources necessary to required for very small, home-based the Commission to publish a notice of comply with a collection of information manufacturers to modify (or, in some requirements (NOR) for the that would be incurred by persons in cases, create) instruction manuals; accreditation of third party conformity the ‘‘normal course of their activities’’ • whether the collection of assessment bodies (or laboratories) to are excluded from a burden estimate, information is necessary for the proper assess conformity with a children’s where an agency demonstrates that the performance of the CPSC’s functions, product safety rule to which a children’s disclosure activities required to comply including whether the information will product is subject. The proposed rule are ‘‘usual and customary.’’ As with the have practical utility; for 16 CFR part 1239, ‘‘Safety Standard warning labels, the reporting burden of • the accuracy of the CPSC’s estimate for Gates and Enclosures,’’ when issued this requirement differs for the two of the burden of the proposed collection as a final rule, will be a children’s groups. of information, including the validity of product safety rule that requires the Many of the home-based gate the methodology and assumptions used; manufacturers supplying on a very • ways to enhance the quality, utility, issuance of an NOR. small scale may provide either no and clarity of the information to be The CPSC published a final rule, instructions or only limited instructions collected; Requirements Pertaining to Third Party with their products as part of their • ways to reduce the burden of the Conformity Assessment Bodies, 78 FR ‘‘normal course of activities.’’ CPSC staff collection of information on 15836 (March 12, 2013), which is estimates that each home-based entity respondents, including the use of codified at 16 CFR part 1112 (referred to supplying homemade gates and/or automated collection techniques, when here as Part 1112). This rule took effect enclosures might require 50 hours to appropriate, and other forms of on June 10, 2013. Part 1112 establishes develop an instruction manual to information technology; and requirements for accreditation of third accompany their products. Although the • the estimated burden hours party conformity assessment bodies (or number of home-based suppliers of associated with label modification, laboratories) to test for conformance gates and/or enclosures is likely to vary including any alternative estimates, for with a children’s product safety rule in substantially over time, based on CPSC both home-based and non-home-based accordance with Section 14(a)(2) of the staff’s review of the marketplace, suppliers. CPSA. The final rule also codifies all of currently, there are approximately 83 the NORs that the CPSC had published, home-based suppliers of gates and/or XIII. Preemption to date. All new NORs, such as the gates enclosures operating in the U.S. market. Section 26(a) of the CPSA, 15 U.S.C. and enclosures standard, require an These firms typically supply two gates 2075(a), provides that where a consumer amendment to part 1112. Accordingly, on average. Therefore, the costs of product safety standard is in effect and in this document, we propose to amend designing an instruction manual for applies to a product, no state or political part 1112 to include the gates and these firms could be as high as $286,350 subdivision of a state may either enclosures standard, along with the (50 hours per model × 83 entities × 2 establish or continue in effect a other children’s product safety rules for models per entity = 8,300 hours × requirement dealing with the same risk which the CPSC has issued NORs.

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Test laboratories applying for XIV. Request for Comments Authority: Sec. 104, Pub. L. 110–314, 122 Stat. 3016 (15 U.S.C. 2056a). acceptance as a CPSC-accepted third This proposed rule begins a party conformity assessment body to rulemaking proceeding under section § 1239.1 Scope. test to the new standard for gates and 104(b) of the CPSIA for the Commission This part establishes a consumer enclosures would be required to meet to issue a consumer product safety product safety standard for gates and the third party conformity assessment standard for gates and enclosures, and enclosures. body accreditation requirements in part to amend part 1112 to add gates and 1112. When a laboratory meets the enclosures to the list of children’s § 1239.2 Requirements for gates and requirements as a CPSC-accepted third product safety rules for which the CPSC enclosures. party conformity assessment body, it has issued an NOR. In addition to Each gate and enclosure must comply can apply to the CPSC to have 16 CFR requests for specific comments with all applicable provisions of ASTM part 1239, Safety Standard for Gates elsewhere in this NPR, the Commission F1004–19, Standard Consumer Safety and Enclosures, included in its scope of invites all interested persons to submit Specification for Expansion Gates and accreditation of CPSC safety rules listed comments on any aspect of the Expandable Enclosures, approved on for the laboratory on the CPSC website proposed rule. June 1, 2019. The Director of the Federal at: www.cpsc.gov/labsearch. Comments should be submitted in Register approves this incorporation by reference in accordance with 5 U.S.C. In connection with the part 1112 accordance with the instructions in the 552(a) and 1 CFR part 51. You may rulemaking, CPSC staff conducted an ADDRESSES section at the beginning of obtain a copy from ASTM International, analysis of the potential impacts on this notice. 100 Bar Harbor Drive, P.O. Box 0700, small entities of the proposed rule List of Subjects West Conshohocken, PA 19428; establishing accreditation requirements, 16 CFR Part 1112 www.astm.org/cpsc.htm. You may 77 FR 31086, 31123–26 (May 24, 2012), inspect a copy at the Division of the as required by the RFA and prepared an Administrative practice and Secretariat, U.S. Consumer Product Initial Regulatory Flexibility Analysis procedure, Audit, Consumer protection, Safety Commission, Room 820, 4330 (IRFA). The IRFA concluded that the Reporting and recordkeeping East West Highway, Bethesda, MD requirements would not have a requirements, Third party conformity 20814, telephone 301–504–7923, or at significant adverse impact on a assessment body. the National Archives and Records substantial number of small laboratories 16 CFR Part 1239 Administration (NARA). For because no requirements are imposed information on the availability of this on laboratories that do not intend to Consumer protection, Imports, material at NARA, call 202–741–6030, provide third party testing services Incorporation by reference, Infants and or go to: www.archives.gov/federal- under section 14(a)(2) of the CPSA. The children, Labeling, Law enforcement, register/cfr/ibr-locations.html. only laboratories that are expected to and Toys. provide such services are those that For the reasons discussed in the Alberta E. Mills, anticipate receiving sufficient revenue preamble, the Commission proposes to Secretary, Consumer Product Safety from providing the mandated testing to amend parts 1112 and 1239 of Title 16 Commission. justify accepting the requirements as a of the Code of Federal Regulations as [FR Doc. 2019–14295 Filed 7–5–19; 8:45 am] business decision. Laboratories that do follows: BILLING CODE 6355–01–P not expect to receive sufficient revenue from these services to justify accepting PART 1112—REQUIREMENTS these requirements would not likely PERTAINING TO THIRD PARTY ENVIRONMENTAL PROTECTION pursue accreditation for this purpose. CONFORMITY ASSESSMENT BODIES AGENCY Similarly, amending the part 1112 rule to include the NOR for gates and ■ 1. The authority citation for part 1112 40 CFR Part 52 continues to read as follows: enclosures would not have a significant [EPA–R03–OAR–2019–0246; FRL–9996–06– adverse impact on small laboratories. Authority: 15 U.S.C. 2063; Pub. L. 110– Region 3] Moreover, based upon the number of 314, section 3, 122 Stat. 3016, 3017 (2008). Approval and Promulgation of Air laboratories in the United States that ■ 2. Amend § 1112.15 by adding Quality Implementation Plans; District have applied for CPSC acceptance of the paragraph (b)(49) to read as follows: accreditation to test for conformance to of Columbia; Amendments to the other juvenile product standards, we § 1112.15 When can a third party Control of Emissions of Volatile expect that only a few laboratories will conformity assessment body apply for Organic Compounds From Motor seek CPSC acceptance of their CPSC acceptance for a particular CPSC rule Vehicle and Mobile Equipment Non- and/or test method? accreditation to test for conformance Assembly Line Coating Operations * * * * * with the gates and enclosures standard. AGENCY: (b) * * * Environmental Protection Most of these laboratories will have Agency (EPA). already been accredited to test for (49) 16 CFR part 1239, Safety ACTION: Proposed rule. conformance to other juvenile product Standard for Gates and Enclosures. standards and the only costs to them * * * * * SUMMARY: The Environmental Protection would be the cost of adding the gates ■ 3. Add part 1239 to read as follows: Agency (EPA) is proposing to approve and enclosures standard to their scope part of a state implementation plan (SIP) of accreditation. As a consequence, the PART 1239—SAFETY STANDARD FOR revision submitted by the District of Commission certifies that the proposed GATES AND ENCLOSURES Columbia (the District) on August 29, notice requirements for the gates and Sec. 2018. The part of the August 29, 2018 enclosures standard will not have a 1239.1 Scope. SIP revision being proposed for significant impact on a substantial 1239.2 Requirements for Gates and approval is an update to the 2002 number of small entities. Enclosures. Mobile Equipment Repair and

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Refinishing (MERR) model rule to 19103. The telephone number is (215) developed by the OTC. The California incorporate the Ozone Transport 814–2036. Mr. Gregory A. Becoat can Air Resources Board (CARB) Suggested Commission’s (OTC) 2009 Motor also be reached via electronic mail at Control Measure (SCM) for Automotive Vehicle and Mobile Equipment Non- [email protected]. Coatings, published October 2005, Assembly Line Coating Operations SUPPLEMENTARY INFORMATION: On August formed the basis for the revisions to the regulations (MVMERR) model rule, 29, 2018, the District of Columbia 2009 MVMERR Model Rule. which was adopted by the District in Department of Energy and Environment B. Source Description 2016. The MVMERR rules establish (DOEE) submitted a SIP revision for volatile organic compounds (VOC) EPA approval which included the Automobile refinishing includes the content limits for coating and cleaning District’s 2016 update to its 2002 MERR application of coatings following the solvents used in vehicle refinishing and rule, found at Title 20 (Environment), manufacture of original equipment. standards for coating application, work District Municipal Regulations (DCMR) ‘‘Automobile’’ or ‘‘vehicle’’ in this practices, monitoring, and Subtitle A (Air Quality), Chapter 7— category refers to passenger cars, trucks, vans, motorcycles, and other mobile recordkeeping. The remaining part of Volatile Organic Compounds. The equipment capable of being driven on the August 29, 2018 SIP revision District’s 2016 update revised its the highway. Automobile refinishing addressed the District’s VOC Reasonable existing, SIP-approved 2002 MERR rule work typically consists of structural Available Control Technology (RACT) to include the OTC’s 2009 MVMERR repair, surface preparation, and requirements for the 2008 ozone model rule. The DOEE’s August 29, painting, and includes operations in national ambient air quality standards 2018 SIP revision also addressed all the auto body repair/paint shops, (NAAQS). EPA will address the VOC VOC requirements of RACT set forth by production auto body paint shops, new RACT portion of the SIP revision in a the CAA for the 2008 8-hour ozone car dealer repair/paint shops, fleet separate rulemaking action. This action NAAQS (the 2008 VOC RACT operator repair/paint shops, and is being taken under the Clean Air Act Submission). The portion addressing the (CAA). custom-made car fabrication facilities. 2008 VOC RACT requirements will be The steps involved in automobile DATES: Written comments must be addressed in a separate rulemaking received on or before August 7, 2019. refinishing include surface preparation, notice. coating applications, and spray ADDRESSES: Submit your comments, equipment. VOC emissions result from identified by Docket ID Number EPA– I. Background the evaporation of solvents during each R03–OAR–2019–0246 at https:// A. General of these processes and can be controlled www.regulations.gov, or via email to Ozone is formed in the atmosphere by through the use of compliant coatings [email protected]. For photochemical reactions between VOCs and solvents, the use of application comments submitted at Regulations.gov, and nitrogen oxides (NOX) in the equipment with increased transfer follow the online instructions for presence of sunlight. In order to reduce efficiency, and stringent work practice submitting comments. Once submitted, these ozone concentrations, the CAA standards. comments cannot be edited or removed requires control of VOC and NOX The main categories of coatings are from Regulations.gov. For either manner emission sources to achieve emission primers and topcoats. The primer of submission, EPA may publish any reductions in moderate or more serious category consists of pretreatment wash comment received to its public docket. ozone nonattainment areas. primers, primers, primer surfacers, and Do not submit electronically any Section 184(a) of the CAA established primer sealer. Topcoats are applied over information you consider to be a single ozone transport region (OTR), the primer coats and provide the final confidential business information (CBI) comprising all or part of 12 eastern color to the refinished area. Primers and or other information whose disclosure is states and the District.1 The District is coatings can be classified as lacquer, restricted by statute. Multimedia part of the OTR and, therefore, must enamel, or urethane coatings. Each submissions (audio, video, etc.) must be comply with the RACT requirements in coating differs in its chemistry, accompanied by a written comment. section 184(b)(1)(B) and (2) of the CAA. durability, and VOC content. Some The written comment is considered the In December 1999, EPA identified additives and specialty coatings are official comment and should include emission reduction shortfalls in several necessary for unusual performance discussion of all points you wish to severe 1-hour ozone nonattainment requirements and are used in relatively make. EPA will generally not consider areas, including those located in the small amounts to improve desirable comments or comment contents located OTR. As a result, the OTC developed properties. Additives and special outside of the primary submission (i.e. model rules for a number of source coatings include adhesion promoters, on the web, cloud, or other file sharing categories. One of the model rules was uniform refinish blenders, elastomeric system). For additional submission to reduce VOC emissions from materials for flexible plastic parts, gloss methods, please contact the person automotive coatings and cleaning flatteners, and anti-glare/safety coatings. identified in the FOR FURTHER solvents associated with non-assembly For additional information, see EPA’s INFORMATION CONTACT section. For the line refinishing or recoating of motor ‘‘Alternative Control Techniques (ACT) full EPA public comment policy, vehicles, mobile equipment, and their Document: Automobile Body information about CBI or multimedia associated parts and components. The Refinishing’’ (EPA–453/R–94–031, April submissions, and general guidance on 2002 MERR model rule was originally 1994). making effective comments, please visit approved by EPA into the District’s SIP II. Summary of SIP Revision https://www2.epa.gov/dockets/ on December 23, 2004 (69 FR 76857) as commenting-epa-dockets. part of a regional effort to attain and On August 29, 2018, the DOEE FOR FURTHER INFORMATION CONTACT: maintain the 1-hour ozone NAAQS. The submitted a SIP revision which Gregory A. Becoat, Planning & 2009 MVMERR Model Rule is a revision included the District’s 2016 update to Implementation Branch (3AD30) Air & of the 2002 MERR Model Rule its 2002, SIP-approved MERR rule to Radiation Division, U.S. Environmental incorporate the OTC’s 2009 Model Rule Protection Agency, Region III, 1650 1 Only a portion of the Commonwealth of Virginia for Motor Vehicle and Mobile Arch Street, Philadelphia, Pennsylvania is included in the OTR. Equipment Non-Assembly Line Coating

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Operations Regulations. A redline/ and Refinishing, and Section 799— application equipment and materials strikeout version showing the changes is Definitions, in order to implement the storage such as spray booths, spray included in the docket for this action. If OTC’s 2009 MVMERR model rule. guns, and sealed containers for cleaning approved, the SIP revision would make Affected sources include: Auto body rags for use within the District. The the District’s 2016 amended rule and repair facilities, fleet operator repair District’s amendments establish revised federally enforceable. The OTC’s 2009 and paint facilities, new and used auto VOC content limits, as set forth in Table MVMERR model rule was established to dealer repair and paint facilities, and 1, for automotive coatings and cleaning reduce VOC emissions from automotive after-market auto customizing and solvents used in the preparation, coatings and cleaning solvents detailing facilities located throughout application, and drying phases of associated with the non-assembly line the District; manufacturers, suppliers, vehicle refinishing. The District’s refinishing or recoating of motor and distributors of coatings and amendments also establish coating vehicles, mobile equipment, and their cleaning solvents intended for use and application standards, work practices, associated parts and components. application to motor vehicles, mobile operator training standards, and The District submitted amendments to equipment, and associated components compliance and recordkeeping Sections 714—Control Techniques, within the District; and manufacturers, standards. Table 1 lists the revised VOC Section 718—Mobile Equipment Repair suppliers, and distributors of limits adopted by the District in 2016.

TABLE 1—ALLOWABLE VOC CONTENT IN AUTOMOTIVE COATINGS FOR MOTOR VEHICLE AND MOBILE EQUIPMENT NON- ASSEMBLY LINE REFINISHING AND RECOATING

VOC regulatory limit as applied * Coating category (Pounds per (Grams per gallon) liter)

Adhesion promoter ...... 4.5 540 Automotive pretreatment coating ...... 5.5 660 Automotive primer ...... 2.1 250 Clear coating ...... 2.1 250 Color coating, including metallic/iridescent color coating ...... 3.5 420 Multicolor coating ...... 5.7 680 Other automotive coating type ...... 2.1 250 Single-stage coating, including single-stage metallic/iridescent coating ...... 2.8 340 Temporary protective coating ...... 0.50 60 Truck bed liner coating ...... 1.7 200 Underbody coating ...... 3.6 430 Uniform finish coating ...... 4.5 540 * VOC regulatory limit as applied = Weight of VOC per Volume of Coating (prepared to manufacturer’s recommended maximum VOC content, minus water and non-VOC solvents).

Table 2 sets forth the old VOC limits revisions by EPA. The revised rule Table II and existing stocks of solvents from the 2002 MERR rule that were allows automotive refinishing facilities until March 1, 2017. previously adopted into the District’s in operation as of February 9, 2016 to regulations and approved as SIP use automotive coatings complying with

TABLE 2—ALTERNATIVE ALLOWABLE CONTENT OF VOCSINAUTOMOTIVE COATINGS FOR MOTOR VEHICLE AND MOBILE EQUIPMENT NON-ASSEMBLY LINE REFINISHING AND RECOATING

VOC regulatory limit as applied * Coating category (Pounds per (Grams per gallon) liter)

Automotive pretreatment primer ...... 6.5 780 Automotive primer-surfacer ...... 4.8 575 Automotive primer-sealer ...... 4.6 550 Single stage-topcoat ...... 5.0 600 2 stage basecoat/clearcoat ...... 5.0 600 3 or 4-stage basecoat/clearcoat ...... 5.2 625 Automotive multicolored ...... 5.7 680 Automotive specialty coating ...... 7.0 840 ** VOC regulatory limit as applied = Weight of VOC per Volume of Coating (prepared to manufacturer’s recommended maximum VOC content, minus water and non-VOC solvents).

III. Proposed Action Operations Regulations rule and is DCMR Sections 714.3(a)(1), 718, and proposing to approve this rule as a SIP 799 are consistent with the EPA has reviewed the District’s updated Motor Vehicle and Mobile revision. EPA concludes that the requirements and limits in the OTC’s Equipment Non-Assembly Line Coating District’s updated MVMERR rule in 20 2009 MVMERR model rule. EPA is

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soliciting public comments on the • Is not an economically significant rules related to transportation issues discussed in this document regulatory action based on health or conformity requirements in the State of relevant to the District’s update of the safety risks subject to Executive Order North Carolina. This action is being 2002 MERR model rule to incorporate 13045 (62 FR 19885, April 23, 1997); taken pursuant to section 110 of the the OTC’s 2009 MVMERR model rule. • Is not a significant regulatory action Clean Air Act (CAA or Act). These comments will be considered subject to Executive Order 13211 (66 FR DATES: Comments must be received on before taking final action. 28355, May 22, 2001); or before August 7, 2019. • Is not subject to requirements of IV. Incorporation by Reference ADDRESSES: Submit your comments, Section 12(d) of the National identified by Docket ID No. EPA–R04– In this document, EPA is proposing to Technology Transfer and Advancement OAR–2019–0153 at http:// include in a final EPA rule regulatory Act of 1995 (15 U.S.C. 272 note) because www.regulations.gov. Follow the online text that includes incorporation by application of those requirements would instructions for submitting comments. reference. In accordance with be inconsistent with the CAA; and Once submitted, comments cannot be requirements of 1 CFR 51.5, EPA is • Does not provide EPA with the edited or removed from Regulations.gov. proposing to incorporate by reference discretionary authority to address, as EPA may publish any comment received revisions to 20 DCMR Sections appropriate, disproportionate human to its public docket. Do not submit 714.3(a)(1), 718, and 799. EPA has health or environmental effects, using electronically any information you made, and will continue to make, these practicable and legally permissible consider to be Confidential Business materials generally available through methods, under Executive Order 12898 Information (CBI) or other information https://www.regulations.gov and at the (59 FR 7629, February 16, 1994). whose disclosure is restricted by statute. EPA Region III Office (please contact the In addition, this proposed rule, the Multimedia submissions (audio, video, person identified in the ‘‘For Further District’s update to the 2002 MERR rule etc.) must be accompanied by a written Information Contact’’ section of this does not have tribal implications as comment. The written comment is preamble for more information). specified by Executive Order 13175 (65 considered the official comment and V. Statutory and Executive Order FR 67249, November 9, 2000), because should include discussion of all points Reviews the SIP is not approved to apply in you wish to make. EPA will generally Indian country located in the state, and not consider comments or comment Under the CAA, the Administrator is EPA notes that it will not impose contents located outside of the primary required to approve a SIP submission substantial direct costs on tribal submission (i.e. on the web, cloud, or that complies with the provisions of the governments or preempt tribal law. other file sharing system). For CAA and applicable Federal regulations. additional submission methods, the full List of Subjects in 40 CFR Part 52 42 U.S.C. 7410(k); 40 CFR 52.02(a). EPA public comment policy, Thus, in reviewing SIP submissions, Environmental protection, Air information about CBI or multimedia EPA’s role is to approve state choices, pollution control, Incorporation by submissions, and general guidance on provided that they meet the criteria of reference, Nitrogen dioxide, Ozone, making effective comments, please visit the CAA. Accordingly, this action Reporting and recordkeeping http://www2.epa.gov/dockets/ merely approves state law as meeting requirements, Volatile organic commenting-epa-dockets. Federal requirements and does not compounds. FOR FURTHER INFORMATION CONTACT: impose additional requirements beyond Kelly Sheckler, Air Regulatory those imposed by state law. For that Authority: 42 U.S.C. 7401 et seq. Management Section, Air Planning and reason, this proposed action: Dated: June 24, 2019. Implementation Branch, Air and • Is not a ‘‘significant regulatory Diana Esher, Radiation Division, U.S. Environmental action’’ subject to review by the Office Acting Regional Administrator, Region III. of Management and Budget under Protection Agency, Region 4, 61 Forsyth [FR Doc. 2019–14259 Filed 7–5–19; 8:45 am] Street SW, Atlanta, Georgia 30303–8960. Executive Orders 12866 (58 FR 51735, BILLING CODE 6560–50–P October 4, 1993) and 13563 (76 FR 3821, Ms. Sheckler’s telephone number is January 21, 2011); (404) 562–9222 . She can also be • Is not an Executive Order 13771 (82 reached via electronic mail at ENVIRONMENTAL PROTECTION [email protected]. FR 9339, February 2, 2017) regulatory AGENCY action because SIP approvals are SUPPLEMENTARY INFORMATION: exempted under Executive Order 12866. 40 CFR Part 52 I. Overview • Does not impose an information collection burden under the provisions [EPA–R04–OAR–2019–0153; FRL–9995–58– EPA is proposing to approve a SIP Region 4] of the Paperwork Reduction Act (44 revision submitted by DAQ, through a letter dated March 21, 2018, seeking to U.S.C. 3501 et seq.); Air Plan Approval; North Carolina: • readopt and amend the air quality rules Is certified as not having a Amendments of Air Quality Rules significant economic impact on a pertaining to transportation conformity 1 substantial number of small entities AGENCY: Environmental Protection in the North Carolina SIP. North under the Regulatory Flexibility Act (5 Agency (EPA). Carolina’s SIP submission revises the following North Carolina regulations in U.S.C. 601 et seq.); ACTION: Proposed rule. • Does not contain any unfunded 15A NCAC 2D Section .2000: Section mandate or significantly or uniquely SUMMARY: The Environmental Protection .2001 Purpose, Scope and Applicability, affect small governments, as described Agency (EPA) is proposing to approve a Section .2002 Definitions, Section .2003 in the Unfunded Mandates Reform Act State Implementation Plan (SIP) Transportation Conformity of 1995 (Public Law 104–4); revision submitted by the North • Does not have Federalism Carolina Department of Environmental 1 EPA received the official electronic version of the submittal on April 4, 2018. EPA has already implications as specified in Executive Quality, Division of Air Quality (DAQ), taken action on the other North Carolina changes Order 13132 (64 FR 43255, August 10, through a letter dated March 21, 2018, submitted through the cover letter dated March 21, 1999); readopting and amending air quality 2018, in a separate action. See 84 FR 14308.

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Determination, and Section .2005 requirements apply in the following date of revocation of the conformity Memorandum of Agreement.2 The manner: by removing counties and requirements for the NAAQS by EPA.’’ changes to these rules are discussed adding certain townships listed in Additionally, rule .2001 is amended to below in Section II of this proposed paragraph (b); and by clarifying in make non-substantive wording, rulemaking. paragraph (c) that transportation punctuation and formatting changes. conformity requirements are applicable After evaluation, EPA believes that II. Analysis of North Carolina’s to any area that is designated the changes to North Carolina rule Submittal nonattainment or has been previously .2001, when taken together, provide the North Carolina’s General Statue (G.S.) designated nonattainment and since appropriate applicability for 150B–21.3A, adopted by the State in redesignated to attainment for the PM2.5 transportation conformity requirements, 2013, requires state agencies to review and ozone NAAQS.6 do not materially change the areas to existing rules every ten years. The State Further, the changes remove which transportation conformity recently reviewed all air quality rules in provisions related to carbon monoxide applies, and are consistent with the 15A NCAC 02D, Air Pollution Control areas, which were redesignated to CAA requirements for applicable areas. Requirements.3 This proposed attainment with 10-year maintenance EPA is proposing to approve the rulemaking pertains to a SIP revision plans effective November 7, 1994,7 and changes to rule .2001 because these that North Carolina provided to EPA for September 8, 1995,8 and previously changes do not alter the applicability for approval of changes to ‘‘Section .2000— demonstrated attainment (containing transportation conformity requirements Transportation Conformity.’’ 4 Section motor vehicle emissions budgets) in North Carolina nor do these changes .2000—Transportation Conformity through 2015.9 As federal transportation conflict with the federal requirements contains the following five rules: conformity requirements no longer for transportation conformity.11 Section .2001 Purpose, Scope and apply to the former carbon monoxide Section .2002 Definitions is amended Applicability, Section .2002 Definitions, nonattainment areas in North to remove the definition of consultation, Section .2003 Transportation Carolina,10 the EPA preliminarily and to make non-substantive wording, Conformity Determination, Section concludes that there are no emissions punctuation and formatting changes (for .2004 Determining Transportation- increases associated with this action. example, to include hyphens between Related Emissions,5 and Section .2005 The rule changes also provide that— the words regionally and significant). Memorandum of Agreement. EPA is in addition to stating that transportation EPA is proposing to approve the proposing action on the following rules: conformity requirements apply for 20 changes to rule .2002 because these Section .2001 Purpose, Scope and years after an area is redesignated to changes, including the deletion of the Applicability, Section .2002 Definitions, attainment—transportation conformity definition of consultation,12 do not alter Section .2003 Transportation requirements apply ‘‘until the effective transportation conformity requirements Conformity Determination, and Section for any applicable area in North .2005 Memorandum of Agreement. The 6 See April 9, 2019 email from Matthew Davis of Carolina nor do these changes conflict changes to these rules are individually DAQ to Jane Spann, Acting Chief for the Air with the federal requirements for Regulatory Management Section of the U.S. EPA described below. If approved, none of Region 4 Office (April 9, 2019 email), available in transportation conformity. these changes would alter the way that the docket for this proposed rulemaking. The April Section .2003 Transportation transportation conformity requirements 9, 2019 email explains DAQ’s intent to cover all Conformity Determination is amended are implemented in the State of North nonattainment and maintenance areas for ozone to update references to federal and PM2.5 in paragraph (c), while retaining a transportation conformity requirements Carolina. specific list of current nonattainment townships in Section .2001 Purpose, Scope and paragraph (b) based on stakeholder interest. With from 40 CFR 93.109 through 93.119 as Applicability is amended to revise the respect to NAAQS that are relevant for conformity opposed to referencing the federal specific areas to which conformity purposes, EPA notes that North Carolina currently transportation conformity requirements has areas designated for maintenance for ozone and from 40 CFR 93.109 through 93.118; 13 PM2.5 NAAQS. 2 The table at 40 CFR 52.1770(c), identifying the 7 See 59 FR 48399 (September 21, 1994) to clarify that written commitments to North Carolina regulations approved into the SIP, implement control measures must be labels each rule as a ‘‘Sect.’’ (i.e., Section) under the (redesignating the Winston-Salem area in Forsyth column titled ‘‘State citation.’’ For consistency with County to attainment for the carbon monoxide obtained if a control measure is not the nomenclature used in the table, this notice uses NAAQS and approving the first 10-year included in either the transportation the term ‘‘Section’’ when referring to individual maintenance plan for the Winston-Salem area). plan or the transportation improvement 8 See 60 FR 39258 (August 2, 1995) (redesignating North Carolina rules. program; and to make non-substantive 3 See North Carolina’s SIP submission, the Charlotte area in Mecklenburg County and the Background and Summary, at page I–1, available in Raleigh-Durham area in Durham and Wake the docket to this action. Counties to attainment for the carbon monoxide 11 See, e.g., 40 CFR 51.390; 40 CFR part 93 4 Transportation Conformity is required under NAAQS and approving first 10-year maintenance subpart A; Transportation Conformity Guidance for section 176(c) of the CAA to ensure that federally- plans for both areas). the South Coast II Court Decision, dated November supported highway projects, transit projects, and 9 See 71 FR 14817 (March 24, 2006) (approving 2018, available at https://nepis.epa.gov/Exe/ other activities are consistent with (conform to) the second 10-year maintenance plans through 2015 for ZyPDF.cgi?Dockey=P100VQME.pdf. purpose of the SIP. Conformity currently applies to the Winston-Salem, Charlotte, and Raleigh-Durham 12 EPA notes that consultation process areas that are designated nonattainment and to carbon monoxide areas). requirement to comply with 40 CFR 93.105 were areas that have been redesignated to attainment 10 See Transportation Conformity Guidance for approved into the SIP within memoranda of after 1990 (maintenance areas) with plans Areas Reaching the End of the Maintenance Period, agreements addressing transportation conformity. developed under 175A of the CAA, for October 2015, available at https://nepis.epa.gov/ See 67 FR 78986 (December 27, 2002). transportation-related criteria pollutants including Exe/ZyPDF.cgi/P100KPP0.PDF? 13 As 40 CFR 93.119 contains provisions for areas ozone, particulate matter, and carbon monoxide and Dockey=P100KPP0.PDF. In general, transportation without a motor vehicle emissions budget approved nitrogen dioxide. EPA previously approved SIP conformity applies for a NAAQS during the CAA in the SIP, this provision is not required to be in revisions from North Carolina addressing section 175A maintenance planning period, which the SIP and would be applicable to such areas transportation conformity requirements. See 67 FR is the later of 20 years after redesignation and absent its inclusion into the SIP. See 77 FR 14979 78983 (December 27, 2002) and 78 FR 78266 approval of the first 10-year maintenance plan, or (March 14, 2012). However, North Carolina has (December 26, 2013). the last year of a motor vehicle emissions budget chosen to submit this provision for inclusion into 5 North Carolina did not request EPA approval for established in the second maintenance plan. Those the SIP, and as inclusion of this provision is not Section .2004 Determining Transportation-Related dates were November 7, 2014 (Winston-Salem area), inconsistent with federal transportation conformity Emissions as it was readopted without changes. See September 8, 2015 (Charlotte and Raleigh-Durham requirements or the CAA, EPA is proposing to March 21, 2018, Letter from DAQ, available in the areas), and March 18, 2015 (last year of motor approve this provision into North Carolina’s docket for this action. vehicle emissions budget for all three areas). federally approved SIP.

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wording, punctuation and formatting See 42 U.S.C. 7410(k); 40 CFR 52.02(a). List of Subjects in 40 CFR Part 52 changes. EPA is proposing to approve Thus, in reviewing SIP submissions, Environmental protection, Air the changes to rule .2003 because these EPA’s role is to approve state choices, pollution control, Carbon monoxide, changes do not alter transportation if they meet the criteria of the CAA. Incorporation by reference, conformity requirements for any These actions merely propose to Intergovernmental relations, Lead, applicable area in North Carolina and approve state law as meeting Federal Nitrogen dioxide, Ozone, Particulate these changes are consistent with the requirements and does not impose matter, Reporting and recordkeeping federal transportation conformity additional requirements beyond those requirements, Sulfur oxides, Volatile requirements. imposed by state law. For that reason, organic compounds. Section .2005 Memorandum of these proposed actions: Agreement is amended to provide a • Are not significant regulatory Authority: 42 U.S.C. 7401 et seq. more general reference to rule .2001 actions subject to review by the Office Dated: May 28, 2019. instead of referencing specific of Management and Budget under Mary S. Walker, subsections in rule .2001, and to make Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 4. non-substantive wording, punctuation October 4, 1993) and 13563 (76 FR 3821, [FR Doc. 2019–14143 Filed 7–5–19; 8:45 am] and formatting changes. EPA is January 21, 2011); proposing to approve the changes to • Are not Executive Order 13771 (82 BILLING CODE 6560–50–P rule .2005 because these changes do not FR 9339, February 2, 2017) regulatory alter transportation conformity actions because SIP approvals are ENVIRONMENTAL PROTECTION requirements for any applicable area in exempted under Executive Order 12866; AGENCY North Carolina and these changes are • Do not impose an information consistent with the federal collection burden under the provisions 40 CFR Part 52 transportation conformity requirements. of the Paperwork Reduction Act (44 In summary, EPA views the U.S.C. 3501 et seq.); [EPA–R08–OAR–2019–0326; FRL–9995–94– amendments described above as • Are certified as not having a Region 8] significant economic impact on a consistent with the federal Approval and Promulgation of Air substantial number of small entities transportation conformity requirements Quality Implementation Plans; under the Regulatory Flexibility Act (5 and the Clean Air Act, and is proposing Montana; Revisions to Administrative U.S.C. 601 et seq.); to approve these rules, as amended, into Rules of Montana the North Carolina SIP. • Do not contain any unfunded mandate or significantly or uniquely III. Incorporation by Reference AGENCY: Environmental Protection affect small governments, as described Agency (EPA). In this rule, EPA is proposing to in the Unfunded Mandates Reform Act ACTION: Proposed rule. include in a final EPA rule regulatory of 1995 (Public Law 104–4); • text that includes incorporation by Do not have Federalism SUMMARY: The Environmental Protection reference. In accordance with the implications as specified in Executive Agency (EPA) is proposing to approve requirements of 1 CFR 51.5, EPA is Order 13132 (64 FR 43255, August 10, State Implementation Plan (SIP) proposing to incorporate by reference 1999); • revisions submitted by the State of the following air quality rules in 15A Are not economically significant Montana on February 23, 2017. The NCAC subchapter 2D.: Section .2001 regulatory actions based on health or revisions are to the Administrative Purpose, Scope and Applicability, safety risks subject to Executive Order Rules of Montana (ARM) open burning Section .2002 Definitions, Section .2003 13045 (62 FR 19885, April 23, 1997); • and permitting regulations to align the Transportation Conformity Are not significant regulatory ARM with the current Montana Code Determination, and Section .2005 actions subject to Executive Order Annotated (MCA) procedures for Memorandum of Agreement, state- 13211 (66 FR 28355, May 22, 2001); appealing a permit and requesting a • Are not subject to requirements of effective January 1, 2018. EPA has hearing. The EPA is taking this action Section 12(d) of the National made, and will continue to make, these pursuant to the Clean Air Act (CAA). materials generally available through Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because DATES: Written comments must be www.regulations.gov and at the EPA received on or before August 7, 2019. Region 4 office (please contact the application of those requirements would be inconsistent with the CAA; and ADDRESSES: Submit your comments, person identified in the ‘‘For Further • Information Contact’’ section of this Do not provide EPA with the identified by Docket ID No. EPA–R08– preamble for more information). discretionary authority to address, as OAR–2019–0326, to the Federal appropriate, disproportionate human Rulemaking Portal: https:// IV. Proposed Action health or environmental effects, using www.regulations.gov. Follow the online For the reasons explained above, EPA practicable and legally permissible instructions for submitting comments. is proposing to approve North Carolina’s methods, under Executive Order 12898 Once submitted, comments cannot be March 21, 2018, SIP revision, which (59 FR 7629, February 16, 1994). edited or removed from amends and readopts rules 15A NCAC The SIP is not approved to apply on www.regulations.gov. The EPA may subchapter 2D.: .2001, .2002, .2003, and any Indian reservation land or in any publish any comment received to its .2005, for inclusion into North other area where EPA or an Indian tribe public docket. Do not submit Carolina’s SIP. has demonstrated that a tribe has electronically any information you jurisdiction. In those areas of Indian consider to be Confidential Business V. Statutory and Executive Order country, the rule does not have tribal Information (CBI) or other information Reviews implications as specified by Executive whose disclosure is restricted by statute. Under the CAA, the Administrator is Order 13175 (65 FR 67249, November 9, Multimedia submissions (audio, video, required to approve a SIP submission 2000), nor will it impose substantial etc.) must be accompanied by a written that complies with the provisions of the direct costs on tribal governments or comment. The written comment is Act and applicable Federal regulations. preempt tribal law. considered the official comment and

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should include discussion of all points Procedures of the MCA pertaining to the (9), 17.8.614(8) and (9), and 17.8.615(6) you wish to make. The EPA will process for appealing air quality and (7) because these revisions are generally not consider comments or permits, including requesting a hearing; either equivalent to the current comment contents located outside of the (2) remove duplicative language in the federally-approved SIP (for 17.8.612, primary submission (i.e., on the web, ARM; and (3) and make minor editorial 17.8.613, 17.8.614, 17.8.615) or have cloud, or other file sharing system). For changes. The Montana Board of been previously approved into the SIP additional submission methods, the full Environmental Review adopted the in similar sections (for 17.8.610). In both EPA public comment policy, amendments on June 3, 2016 (effective instances, we previously determined information about CBI or multimedia July 9, 2016). that the revisions do not conflict with submissions, and general guidance on the CAA.4 II. Analysis of State Submittal making effective comments, please visit The amendments to ARM 17.8.749(7) http://www2.epa.gov/dockets/ We evaluated Montana’s February 23, incorporate by reference section 75–2– commenting-epa-dockets. 2017, submittal regarding amendments 213 of the MCA pertaining to the Docket: All documents in the docket to the State’s ARM. The amendments to hearing and appeals procedures for are listed in the www.regulations.gov ARM 17.8.610(3), 17.8.612(10) and (11), permit applicants of energy index. Although listed in the index, 17.8.613(8) and (9), 17.8.614(8) and (9), development projects. The permit some information is not publicly and 17.8.615(6) and (7) incorporate by appeals procedures in 75–2–213 pertain available, e.g., CBI or other information reference section 75–2–211 of the MCA to air quality permit decisions on energy whose disclosure is restricted by statute. pertaining to the permit appeals development projects that differ from Certain other material, such as process, including requesting a hearing. the general procedures described in 75– copyrighted material, will be publicly These statutes provide as follows: 2–211, MCA. Specifically, the statutes available only in hard copy. Publicly • That a person who is directly and proposed for approval within 75–2–213, available docket materials are available adversely affected by the issuance or MCA allow a permit applicant the either electronically in denial of a permit may request a hearing following hearing procedures: www.regulations.gov or in hard copy at within 15 days after the state renders a • The applicant may request a the Air and Radiation Division, decision; hearing within 30 days after the • Environmental Protection Agency that a request for hearing does not department renders a decision; (EPA), Region 8, 1595 Wynkoop Street, stay the state’s decision on an • a request for hearing must be Denver, Colorado 80202–1129. The EPA application unless the board orders a limited to those issues presented to the requests that if at all possible, you stay; and • state during the public comment period contact the individual listed in the FOR an affidavit supporting the request unless the issue is related to a material FURTHER INFORMATION CONTACT section to for hearing must be filed within 30 days change in federal or state law made view the hard copy of the docket. You after the issuance or denial of a permit. during the public comment period, to a may view the hard copy of the docket The revisions also remove judicial decision issued after the Monday through Friday, 8:00 a.m. to corresponding duplicative language comment period, or to a material change 4:00 p.m., excluding federal holidays. between the ARM and MCA and make to the draft permit finalized after an editorial changes. opportunity for comment; FOR FURTHER INFORMATION CONTACT: The language in the revisions to • an affidavit supporting the request Jaslyn Dobrahner, Air and Radiation 17.8.610, 17.8.612, 17.8.613, 17.8.614, must be filed with the request for a Division, EPA, Region 8, Mailcode and 17.8.615 referencing 75–2–211, hearing; and 8ARD–QP, 1595 Wynkoop Street, MCA, is equivalent to the language • the applicant may, by filing a Denver, Colorado 80202–1129, (303) being removed from these sections of written election to the board within 15 312–6252, [email protected]. the ARM except for 17.8.610. According days of receipt of request for hearing, SUPPLEMENTARY INFORMATION: to the State,2 17.8.610 had not been elect a hearing before the board or have updated during the last State revision in I. Background the matter submitted directly to the 2011, whereas 17.8.612, 17.8.613, district court for judicial review. On February 23, 2017, the State of 17.8.614, and 17.8.615 had been The revisions also make a minor Montana submitted a SIP revision amended by the State and subsequently editorial change. containing amendments to open burning approved into the SIP on August 20, An important consideration before the and permitting regulations in the ARM 2015.3 The revisions to 17.8.610 in the EPA approves programs under the CAA at 17.8.610, Major Open Burning Source February 23, 2017, submittal are is that the state must provide the same Restrictions; 17.8.612, Conditional Air identical to the revisions we approved opportunity for judicial review of the air Quality Open Burning Permits; 17.8.613, in our August 20, 2015 rulemaking to permitting actions in state court as Christmas Tree Waste Open Burning 17.8.612, 17.8.613, 17.8.614, and would be available in federal court. The Permits; 17.8.614, Commercial Film 17.8.615 in that they require a hearing proposed revisions to 17.8.749, to Production Open Burning Permits; request affidavit to be filed within 30 incorporate the applicable statutes in 17.8.615, Firefighter Training; and days after the department renders a 75–2–213, MCA, are in accordance with 17.8.749, Conditions for Issuance or decision, remove an automatic stay of 1 CAA sections 307(b) and 307(d)(7)(B) Denial of Permit. The amendments: (1) the department’s decision to issue a which provide for the judicial review of Add references to sections 75–2–211, permit upon a permit appeal, and add an air quality action and limits Permits for Construction, Installation, conditions and procedures for when the objections to an action to those that Alteration, or Use and 75–2–213, Energy board may order a stay. were raised with reasonable specificity Development Project—Hearing and We are proposing to approve the during the public comment period, revisions in ARM 17.8.610(3), 1 respectively. Additionally, if the The February 23, 2017, submittal also included 17.8.612(10) and (11), 17.8.613(8) and revisions to 17.8.1210, General Requirements for Administrator refuses to convene a Air Quality Operating Permit Content. However, the proceeding, a person may seek review in state does not want us to act on 17.8.1210, because 2 Email from State of Montana to the EPA it is not part of the federal SIP. (Memorandum from (September 30, 2016). State of Montana to the EPA (June 26, 2019)). 3 80 FR 50582 (August 20, 2015). 4 80 FR 30987 (June 1, 2015).

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the United States court of appeals.5 court for judicial review. We therefore III. The EPA’s Proposed Action Similarly, 75–2–213, MCA provides conclude that the revisions do not In this action, the EPA is proposing to permit applicants with the election to conflict with CAA requirements for approve SIP amendments to have the matter proceed to hearing judicial review of air permitting actions Administrative Rules of Montana, before the state board or to have the and propose to approve the revisions to shown in Table 1, submitted by the matter submitted directly to the district 17.8.749. State of Montana on February 23, 2017.

TABLE 1—LIST OF MONTANA AMENDMENTS THAT THE EPA IS PROPOSING TO APPROVE

Amended Sections in the February 23, 2017 Submittal Proposed for Approval

17.8.610(3), 17.8.612(10) and (11), 17.8.613(8) and (9), 17.8.614(8) and (9), 17.8.615(6) and (7), 17.8.749(7).

IV. Incorporation by Reference • Does not contain any unfunded Dated: June 28, 2019. In this document, the EPA is mandate or significantly or uniquely Gregory Sopkin, proposing to include regulatory text in affect small governments, as described Regional Administrator, EPA Region 8. a final EPA rule that includes in the Unfunded Mandates Reform Act [FR Doc. 2019–14243 Filed 7–5–19; 8:45 am] of 1995 (Public Law 104–4); BILLING CODE 6560–50–P incorporation by reference. In • accordance with requirements of 1 CFR Does not have federalism 51.5, the EPA is proposing to implications as specified in Executive incorporate by reference the Order 13132 (64 FR 43255, August 10, ENVIRONMENTAL PROTECTION amendments described in section III. 1999); AGENCY • Is not an economically significant The EPA has made, and will continue 40 CFR Part 62 to make, these materials generally regulatory action based on health or available through www.regulations.gov safety risks subject to Executive Order [EPA–R09–OAR–2019–0344; FRL–9995–98– 13045 (62 FR 19885, April 23, 1997); Region 9] and at the EPA Region 8 Office (please • contact the person identified in the FOR Is not a significant regulatory action Approval and Promulgation of State FURTHER INFORMATION CONTACT section of subject to Executive Order 13211 (66 FR Plans for Designated Facilities and this preamble for more information). 28355, May 22, 2001); • Is not subject to requirements of Pollutants; Arizona; Control of V. Statutory and Executive Order section 12(d) of the National Emissions From Existing Municipal Reviews Technology Transfer and Advancement Solid Waste Landfills Act of 1995 (15 U.S.C. 272 note) because Under the CAA, the Administrator is AGENCY: Environmental Protection required to approve a SIP submission application of those requirements would Agency (EPA). that complies with the provisions of the be inconsistent with the CAA; and • ACTION: Proposed rule. Act and applicable federal regulations. Does not provide the EPA with the 42 U.S.C. 7410(k); 40 CFR 52.02(a). discretionary authority to address, as SUMMARY: The Environmental Protection Thus, in reviewing SIP submissions, the appropriate, disproportionate human Agency (EPA) is proposing to approve a EPA’s role is to approve state choices, health or environmental effects, using state plan submitted by the State of provided that they meet the criteria of practicable and legally permissible Arizona. This state plan submittal the CAA. Accordingly, this action methods, under Executive Order 12898 pertains to the regulation of landfill gas merely proposes to approve state law as (59 FR 7629, February 16, 1994). and its components, including methane, meeting federal requirements and does In addition, the SIP is not approved from existing municipal solid waste not impose additional requirements to apply on any Indian reservation land (MSW) landfills. Arizona’s state plan beyond those imposed by state law. For or in any other area where the EPA or was submitted in response to the EPA’s that reason, this action: an Indian tribe has demonstrated that a promulgation of Emissions Guidelines • Is not a ‘‘significant regulatory tribe has jurisdiction. In those areas of and Compliance Times for MSW action’’ subject to review by the Office Indian country, the proposed rule does landfills. This action is being taken of Management and Budget under not have tribal implications and will not under the Clean Air Act (CAA). Executive Orders 12866 (58 FR 51735, impose substantial direct costs on tribal DATES: Written comments must be October 4, 1993) and 13563 (76 FR 3821, governments or preempt tribal law as received on or before August 7, 2019. January 21, 2011); specified by Executive Order 13175 (65 ADDRESSES: Submit your comments, • Is not an Executive Order 13771 (82 FR 67249, November 9, 2000). identified by Docket ID No. EPA–R09– FR 9339, February 2, 2017) regulatory List of Subjects in 40 CFR Part 52 OAR–2019–03440344 at http:// action because SIP approvals are www.regulations.gov, or via email to exempted under Executive Order 12866; Environmental protection, Air [email protected]. For comments • Does not impose an information pollution control, Carbon monoxide, submitted at Regulations.gov, follow the collection burden under the provisions Incorporation by reference, online instructions for submitting of the Paperwork Reduction Act (44 Intergovernmental relations, comments. Once submitted, comments U.S.C. 3501 et seq.); Greenhouse gases, Lead, Nitrogen cannot be edited or removed from • Is certified as not having a dioxide, Ozone, Particulate matter, Regulations.gov. For either manner of significant economic impact on a Reporting and recordkeeping submission, the EPA may publish any substantial number of small entities requirements, Sulfur oxides, Volatile comment received to its public docket. under the Regulatory Flexibility Act (5 organic compounds. Do not submit electronically any U.S.C. 601 et seq.); Authority: 42 U.S.C. 7401 et seq. information you consider to be

5 CAA 307(d)(7)(B).

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confidential business information (CBI) XXX and Cf, respectively (81 FR 59332 V. Statutory and Executive Order or other information whose disclosure is and 81 FR 59276) 76 FR 15372). Reviews restricted by statute. Multimedia II. Summary of the Plan and EPA In reviewing state plan submissions, submissions (audio, video, etc.) must be Analysis the EPA’s role is to approve state accompanied by a written comment. choices, provided that they meet the The written comment is considered the The EPA has reviewed the Arizona criteria of the CAA. Accordingly, this official comment and should include section 111(d) plan submittal in the action merely approves state law as discussion of all points you wish to context of the requirements of 40 CFR meeting federal requirements and does make. The EPA will generally not part 60, subparts B and Cf, and part 62, not impose additional requirements consider comments or comment subpart A. In this action, the EPA is beyond those imposed by state law. For contents located outside of the primary proposing to determine that the that reason, this proposed action: submission (i.e. on the web, cloud, or submitted section 111(d) plan meets the • Is not a ‘‘significant regulatory other file sharing system). For above-cited requirements. The primary action’’ subject to review by the Office additional submission methods, please mechanism selected by ADEQ to of Management and Budget under contact the person identified in the FOR implement the emission guidelines for Executive Orders 12866 (58 FR 51735, FURTHER INFORMATION CONTACT section. MSW landfills under state jurisdiction October 4, 1993) and 13563 (76 FR 3821, For the full EPA public comment policy, is through incorporation by reference of January 21, 2011); information about CBI or multimedia 40 CFR part 60, subpart Cf and 40 CFR • Is not an Executive Order 13771 (82 submissions, and general guidance on part 60, subpart XXX into the Arizona FR 9339, February 2, 2017) regulatory making effective comments, please visit Administrative Code (A.A.C.), at A.A.C. action because this action is not http://www2.epa.gov/dockets/ R18–2–731, entitled ‘‘Standards of significant under Executive Order commenting-epa-dockets. Performance for Existing Municipal 12866. FOR FURTHER INFORMATION CONTACT: Solid Waste Landfills,’’ and A.A.C. R18– • Does not impose an information Jeffrey Buss, U.S. EPA Region IX, (415) 2–901(79), entitled ‘‘New Source collection burden under the provisions 947–4152, [email protected]. Performance Standards,’’ on July 6, of the Paperwork Reduction Act (44 SUPPLEMENTARY INFORMATION: 2018. These subparts will be applicable U.S.C. 3501 et seq.); to MSW landfills under the plan upon • Is certified as not having a I. Background the EPA’s approval of the plan by final significant economic impact on a On August 29, 2016, the EPA rulemaking. A detailed explanation of substantial number of small entities finalized Standards of Performance for the rationale behind this proposed under the Regulatory Flexibility Act (5 Municipal Solid Waste Landfills and approval is available in the Technical U.S.C. 601 et seq.); Emission Guidelines and Compliance Support Document (TSD). • Does not contain any unfunded Times for Municipal Solid Waste III. Proposed Action mandate or significantly or uniquely Landfills in 40 CFR part 60 subpart XXX affect small governments, as described and Cf, respectively. 81 FR 59332 and The EPA is proposing to approve the in the Unfunded Mandates Reform Act 81 FR 59276. These actions were taken Arizona section 111(d) plan for MSW of 1995 (Public Law 104–4); under section 111 of the CAA. landfills submitted pursuant to 40 CFR • Does not have Federalism Section 111(d) of the CAA requires part 60, subpart Cf. Therefore, the EPA implications as specified in Executive the EPA to establish a procedure for a is proposing to amend 40 CFR part 62, Order 13132 (64 FR 43255, August 10, state to submit a plan to the EPA which subpart D, to reflect this action. This 1999); establishes standards of performance for approval is based on the rationale • Is not an economically significant any air pollutant: (1) For which air previously discussed and in further regulatory action based on health or quality criteria have not been issued or detail in the TSD associated with this safety risks subject to Executive Order which is not included on a list action. The scope of the proposed 13045 (62 FR 19885, April 23, 1997); published under CAA section 108 or approval of the section 111(d) plan is • Is not a significant regulatory action emitted from a source category which is limited to the provisions of 40 CFR parts subject to Executive Order 13211 (66 FR regulated under CAA section 112 but (2) 60 and 62 for existing MSW landfills, as 28355, May 22, 2001); to which a standard of performance referenced in the emission guidelines, • Is not subject to requirements of under CAA section 111 would apply if subpart Cf. Section 12(d) of the National such existing source were a new source. IV. Incorporation by Reference Technology Transfer and Advancement The EPA established the requirements Act of 1995 (15 U.S.C. 272 note) because for state plan submittals in 40 CFR part In this document, the EPA is application of those requirements would 60, subpart B. State submittals under proposing to include in a final EPA rule be inconsistent with the CAA; and CAA sections 111(d) must be consistent regulatory text that includes • Does not provide the EPA with the with the relevant emission guidelines, incorporation by reference of the state discretionary authority to address, as in this instance 40 CFR part 60, subpart plan. In accordance with requirements appropriate, disproportionate human Cf, and the requirements of 40 CFR part of 1 CFR 51.5, the EPA is proposing to health or environmental effects, using 60, subpart B. incorporate by reference ADEQ rules practicable and legally permissible On July 24, 2018, the Arizona regarding MSW landfills discussed in methods, under Executive Order 12898 Department of Environmental Quality section II of this preamble. The EPA has (59 FR 7629, February 16, 1994). (ADEQ) submitted to the EPA a formal made, and will continue to make, these In addition, this proposed approval of section 111(d) plan for existing materials generally available through Arizona’s state plan submittal for municipal solid waste landfills. The http://www.regulations.gov, Docket ID existing MSW landfills does not have submitted section 111(d) plan was in No. EPA–R09–OAR–2019–0344, and at tribal implications as specified by response to the August 29, 2016 the EPA Region IX Office (please contact Executive Order 13175 (65 FR 67249, promulgation of federal NSPS and the person identified in the ‘‘For Further November 9, 2000), because the state emission guidelines requirements for Information Contact’’ section of this plan is not approved to apply in Indian MSW landfills, 40 CFR part 60, subparts preamble for more information). country located in the state, and the

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EPA notes that it will not impose submission, the EPA may publish any 111(d) plan was in response to the substantial direct costs on tribal comment received to its public docket. August 29, 2016 promulgation of federal governments or preempt tribal law. Do not submit electronically any NSPS and emission guidelines information you consider to be requirements for MSW landfills, 40 CFR List of Subjects in 40 CFR Part 62 confidential business information (CBI) part 60, subparts XXX and Cf, Environmental protection, Air or other information whose disclosure is respectively (81 FR 59332 and 81 FR pollution control, Landfills, restricted by statute. Multimedia 59276). Incorporation by reference, submissions (audio, video, etc.) must be Intergovernmental relations, Methane, II. Summary of the Plan and EPA accompanied by a written comment. Analysis Ozone, Reporting and recordkeeping The written comment is considered the requirements, Sulfur oxides, Volatile official comment and should include The EPA has reviewed the PCAQCD organic compounds. discussion of all points you wish to section 111(d) plan submittal in the Authority: 42 U.S.C. 7401 et seq. make. The EPA will generally not context of the requirements of 40 CFR consider comments or comment part 60, subparts B and Cf, and part 62, Dated: June 20, 2019. contents located outside of the primary subpart A. In this action, the EPA is Deborah Jordan, submission (i.e. on the web, cloud, or proposing to determine that the Acting Regional Administrator, Region IX. other file sharing system). For submitted section 111(d) plan meets the [FR Doc. 2019–14245 Filed 7–5–19; 8:45 am] additional submission methods, please above-cited requirements. The primary BILLING CODE 6560–50–P contact the person identified in the ‘‘For mechanism selected by PCAQCD to Further Information Contact’’ section. implement the emission guidelines for For the full EPA public comment policy, MSW landfills under state jurisdiction ENVIRONMENTAL PROTECTION information about CBI or multimedia is through incorporation by reference of AGENCY submissions, and general guidance on 40 CFR part 60, subpart Cf and 40 CFR part 60, subpart XXX into the PCAQCD 40 CFR Part 62 making effective comments, please visit http://www2.epa.gov/dockets/ Code at Chapter 5, Article 34 (5–34– [EPA–R09–OAR–2019–0345; FRL–9995–96– commenting-epa-dockets. 2050), entitled ‘‘Standards of Region 9] Performance for Existing Municipal FOR FURTHER INFORMATION CONTACT: Solid Waste Landfills’’, and Chapter 6, Approval and Promulgation of State Jeffrey Buss, U.S. EPA Region IX, (415) Article 1 (6–1–030), entitled ‘‘New Plans for Designated Facilities and 947–4152, [email protected]. Source Performance Standards,’’, on Pollutants; Pinal County Air Quality SUPPLEMENTARY INFORMATION: December 19, 2018. These subparts will Control District; Control of Emissions I. Background be applicable to MSW landfills under From Existing Municipal Solid Waste the plan upon the EPA’s approval of the Landfills On August 29, 2016, the EPA plan by final rulemaking. A detailed finalized Standards of Performance for explanation of the rationale behind this AGENCY: Environmental Protection Municipal Solid Waste Landfills and proposed approval is available in the Agency (EPA). Emission Guidelines and Compliance Technical Support Document (TSD). ACTION: Proposed rule. Times for Municipal Solid Waste Landfills in 40 CFR part 60 subpart XXX III. Proposed Action SUMMARY: The Environmental Protection and Cf,. 81 FR 59332 and 81 FR 59276 The EPA is proposing to approve the Agency (EPA) is proposing to approve a respectively. These actions were taken PCAQCD section 111(d) plan for MSW state plan submitted by the Pinal under section 111 of the CAA. landfills submitted pursuant to 40 CFR County Air Quality Control District Section 111(d) of the CAA requires part 60, subpart Cf. Therefore, the EPA (PCAQCD). For the purposes of this the EPA to establish a procedure for a is proposing to amend 40 CFR part 62, plan, the PCAQCD is considered a state to submit a plan to the EPA which subpart D, to reflect this action. This ‘‘State’’ as defined in the ‘‘Standards of establishes standards of performance for approval is based on the rationale Performance for New Stationary any air pollutant: (1) For which air previously discussed and in further Sources’’. This state plan submittal quality criteria have not been issued or detail in the TSD associated with this pertains to the regulation of landfill gas which is not included on a list action. The scope of the proposed and its components, including methane, published under CAA section 108 or approval of the section 111(d) plan is from existing municipal solid waste emitted from a source category which is limited to the provisions of 40 CFR parts (MSW) landfills. This state plan was regulated under CAA section 112 but (2) 60 and 62 for existing MSW landfills, as submitted in response to the EPA’s to which a standard of performance referenced in the emission guidelines, promulgation of Emissions Guidelines under CAA section 111 would apply if subpart Cf. and Compliance Times for MSW such existing source were a new source. landfills. This action is being taken The EPA established these requirements IV. Incorporation by Reference under the Clean Air Act (CAA). for state plan submittal in 40 CFR part In this document, the EPA is DATES: Written comments must be 60, subpart B. State submittals under proposing to include in a final EPA rule received on or before August 7, 2019. CAA sections 111(d) must be consistent regulatory text that includes ADDRESSES: Submit your comments, with the relevant emission guidelines, incorporation by reference of the state identified by Docket ID No. EPA–R09– in this instance 40 CFR part 60, subpart plan. In accordance with requirements OAR–2019–0345 at http:// Cf, and the requirements of 40 CFR part of 1 CFR 51.5, the EPA is proposing to www.regulations.gov, or via email to 60, subpart B. incorporate by reference PCAQCD rules [email protected]. For comments On March 4, 2019, the Arizona regarding MSW landfills discussed in submitted at Regulations.gov, follow the Department of Environmental Quality section II of this preamble. The EPA has online instructions for submitting (ADEQ), on behalf of the PCAQCD, made, and will continue to make, these comments. Once submitted, comments submitted to the EPA a formal section materials generally available through cannot be edited or removed from 111(d) plan for existing municipal solid http://www.regulations.gov, Docket ID Regulations.gov. For either manner of waste landfills. The submitted section No. EPA–R09–OAR–2019–0345, and at

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the EPA Region IX Office (please contact Order 13175 (65 FR 67249, November 9, • Federal eRulemaking Portal: http:// the person identified in the FOR FURTHER 2000), because the state plan is not www.regulations.gov. Follow the online INFORMATION CONTACT section of this approved to apply in Indian country instructions for submitting comments. preamble for more information). located in the state, and the EPA notes Do not submit electronically any that it will not impose substantial direct information you consider to be V. Statutory and Executive Order costs on tribal governments or preempt Confidential Business Information (CBI) Reviews tribal law. or other information whose disclosure is In reviewing state plan submissions, restricted by statute. the EPA’s role is to approve state List of Subjects in 40 CFR Part 62 • Mail: Document Control Office choices, provided that they meet the Environmental protection, Air (7407M), Office of Pollution Prevention criteria of the CAA. Accordingly, this pollution control, Landfills, and Toxics (OPPT), Environmental action merely approves state law as Incorporation by reference, Protection Agency, 1200 Pennsylvania meeting federal requirements and does Intergovernmental relations, Methane, Ave. NW, Washington, DC 20460–0001. not impose additional requirements Ozone, Reporting and recordkeeping • Hand Delivery: To make special beyond those imposed by state law. For requirements, Sulfur oxides, Volatile arrangements for hand delivery or that reason, this proposed action: organic compounds. delivery of boxed information, please • Is not a ‘‘significant regulatory Authority: 42 U.S.C. 7401 et seq. follow the instructions at http:// action’’ subject to review by the Office www.epa.gov/dockets/contacts.html. of Management and Budget under Dated: June 20, 2019. Additional instructions on Executive Orders 12866 (58 FR 51735, Deborah Jordan, commenting or visiting the docket, October 4, 1993) and 13563 (76 FR 3821, Acting Regional Administrator, Region IX. along with more information about January 21, 2011); [FR Doc. 2019–14250 Filed 7–5–19; 8:45 am] dockets generally, is available at http:// • Is not an Executive Order 13771 (82 BILLING CODE 6560–50–P www.epa.gov/dockets. FR 9339, February 2, 2017) regulatory FOR FURTHER INFORMATION CONTACT: For action because this action is not technical information contact: Kenneth significant under Executive Order ENVIRONMENTAL PROTECTION Moss, Chemical Control Division 12866. AGENCY (7405M), Office of Pollution Prevention • Does not impose an information and Toxics, Environmental Protection collection burden under the provisions 40 CFR Part 721 Agency, 1200 Pennsylvania Ave. NW, of the Paperwork Reduction Act (44 [EPA–HQ–OPPT–2019–0226; FRL–9996–13] Washington, DC 20460–0001; telephone U.S.C. 3501 et seq.); number: (202) 564–9232; email address: • Is certified as not having a RIN 2070–AB27 [email protected]. significant economic impact on a For general information contact: The Significant New Use Rules on Certain substantial number of small entities TSCA-Hotline, ABVI-Goodwill, 422 Chemical Substances (19–3.B) under the Regulatory Flexibility Act (5 South Clinton Ave., Rochester, NY U.S.C. 601 et seq.); AGENCY: 14620; telephone number: (202) 554– • Environmental Protection Does not contain any unfunded Agency (EPA). 1404; email address: TSCA-Hotline@ mandate or significantly or uniquely ACTION: Proposed rule. epa.gov. affect small governments, as described SUPPLEMENTARY INFORMATION: in the Unfunded Mandates Reform Act SUMMARY: EPA is proposing significant of 1995 (Public Law 104–4); new use rules (SNURs) under the Toxic I. General Information • Does not have Federalism Substances Control Act (TSCA) for 3 A. Does this action apply to me? implications as specified in Executive chemical substances which are the Order 13132 (64 FR 43255, August 10, subject of premanufacture notices You may be potentially affected by 1999); this action if you manufacture, process, • (PMNs). This action would require Is not an economically significant persons to notify EPA at least 90 days or use the chemical substances regulatory action based on health or before commencing manufacture contained in this proposed rule. The safety risks subject to Executive Order (defined by statute to include import) or following list of North American 13045 (62 FR 19885, April 23, 1997); Industrial Classification System • processing of any of these 3 chemical Is not a significant regulatory action substances for an activity that is (NAICS) codes is not intended to be subject to Executive Order 13211 (66 FR designated as a significant new use by exhaustive, but rather provides a guide 28355, May 22, 2001); this proposed rule. This action would to help readers determine whether this • Is not subject to requirements of further require that persons not document applies to them. Potentially Section 12(d) of the National commence manufacture or processing affected entities may include: Technology Transfer and Advancement • Manufacturers or processors of one for the significant new use until they Act of 1995 (15 U.S.C. 272 note) because or more subject chemical substances have submitted a Significant New Use application of those requirements would (NAICS codes 325 and 324110), e.g., Notice, and EPA has conducted a review be inconsistent with the CAA; and chemical manufacturing and petroleum of the notice, made an appropriate • Does not provide the EPA with the refineries. discretionary authority to address, as determination on the notice under This action may also affect certain appropriate, disproportionate human TSCA 5(a)(3), and has taken any risk entities through pre-existing import health or environmental effects, using management actions as are required as certification and export notification practicable and legally permissible a result of that determination. rules under TSCA. Chemical importers methods, under Executive Order 12898 DATES: Comments must be received on are subject to the TSCA section 13 (15 (59 FR 7629, February 16, 1994). or before August 7, 2019. U.S.C. 2612) import certification In addition, this proposed approval of ADDRESSES: Submit your comments, requirements promulgated at 19 CFR the PCAQCD plan submittal for existing identified by docket identification (ID) 12.118 through 12.127 and 19 CFR MSW landfills does not have tribal number EPA–HQ–OPPT–2019–0226, by 127.28. Chemical importers must certify implications as specified by Executive one of the following methods: that the shipment of the chemical

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substance complies with all applicable B. What is the Agency’s authority for EPA determines that the use is not rules and orders under TSCA. Importers taking this action? likely to present an unreasonable risk, of chemicals subject to these proposed TSCA section 5(a)(2) (15 U.S.C. EPA is required under TSCA section SNURs would need to certify their 2604(a)(2)) authorizes EPA to determine 5(g) to make public, and submit for compliance with the SNUR that a use of a chemical substance is a publication in the Federal Register, a requirements should these proposed ‘‘significant new use.’’ EPA must make statement of EPA’s findings. rules be finalized. The EPA policy in this determination by rule after III. Significant New Use Determination support of import certification appears considering all relevant factors, at 40 CFR part 707, subpart B. In including the four TSCA section 5(a)(2) TSCA section 5(a)(2) states that EPA’s addition, pursuant to 40 CFR 721.20, factors listed in Unit III. Once EPA determination that a use of a chemical any persons who export or intend to determines through rulemaking that a substance is a significant new use must export a chemical substance that is the use of a chemical substance is a be made after consideration of all subject of this proposed rule on or after relevant factors, including: significant new use, TSCA section • August 7, 2019 are subject to the export 5(a)(1)(B)(i) (15 U.S.C. 2604(a)(1)(B)(i)) The projected volume of notification provisions of TSCA section requires persons to submit a significant manufacturing and processing of a 12(b) (15 U.S.C. 2611(b)) and must chemical substance. new use notice (SNUN) to EPA at least • comply with the export notification 90 days before they manufacture or The extent to which a use changes requirements in 40 CFR part 707, process the chemical substance for that the type or form of exposure of human subpart D. use. TSCA prohibits such beings or the environment to a chemical manufacturing or processing from substance. B. What should I consider as I prepare • The extent to which a use increases my comments for EPA? commencing until EPA has conducted a review of the SNUN, made an the magnitude and duration of exposure 1. Submitting CBI. Do not submit CBI appropriate determination on the of human beings or the environment to SNUN, and taken such actions as are a chemical substance. to EPA through regulations.gov or email. • Clearly mark the part or all of the required in association with that The reasonably anticipated manner information that you claim to be CBI. determination (15 U.S.C. and methods of manufacturing, processing, distribution in commerce, For CBI information in a disk or CD– 2604(a)(1)(B)(ii)). In the case of a and disposal of a chemical substance. ROM that you mail to EPA, mark the determination other than not likely to outside of the disk or CD–ROM as CBI present unreasonable risk, the In determining what would constitute a significant new use for the chemical and then identify electronically within applicable review period must also substances that are the subject of these the disk or CD–ROM the specific expire before manufacturing or SNURs, EPA considered relevant information that is claimed as CBI. In processing for the new use may information about the toxicity of the addition to one complete version of the commence. As described in Unit V., the chemical substances, and potential comment that includes information general SNUR provisions are found at human exposures and environmental claimed as CBI, a copy of the comment 40 CFR part 721, subpart A. releases that may be associated with the that does not contain the information C. Applicability of General Provisions conditions of use of the substances, in claimed as CBI must be submitted for the context of the four bulleted TSCA inclusion in the public docket. General provisions for SNURs appear in 40 CFR part 721, subpart A. These section 5(a)(2) factors listed in this unit. Information so marked will not be provisions describe persons subject to During its review of these chemicals, disclosed except in accordance with the rule, recordkeeping requirements, EPA identified certain conditions of use procedures set forth in 40 CFR part 2. exemptions to reporting requirements, that are not intended by the submitters, 2. Tips for preparing your comments. and applicability of the rule to uses but reasonably foreseen to occur. EPA is When preparing and submitting your occurring before the effective date of the proposing to designate those reasonably comments, see the commenting tips at rule. Provisions relating to user fees foreseen and other potential conditions http://www.epa.gov/dockets/ appear at 40 CFR part 700. Pursuant to of use as significant new uses. comments.html. § 721.1(c), persons subject to these IV. Substances Subject to This Proposed II. Background SNURs must comply with the same Rule SNUN requirements and EPA regulatory A. What action is the Agency taking? procedures as submitters of PMNs under EPA is proposing significant new use TSCA section 5(a)(1)(A) (15 U.S.C. and recordkeeping requirements for 3 EPA is proposing these SNURs under 2604(a)(1)(A)). In particular, these chemical substances in 40 CFR part 721, TSCA section 5(a)(2) for 3 chemical requirements include the information subpart E. In this unit, EPA provides the substances which were the subjects of submission requirements of TSCA following information for each chemical PMNs P–16–417, P–18–239, and P–18– sections 5(b) and 5(d)(1) (15 U.S.C. substance: 240. These proposed SNURs would 2604(b) and 2604(d)(1)), the exemptions • PMN number. require persons who intend to authorized by TSCA sections 5(h)(1), • Chemical name (generic name, if manufacture or process any of these 5(h)(2), 5(h)(3), and 5(h)(5) and the the specific name is claimed as CBI). chemical substances for an activity that regulations at 40 CFR part 720. Once • Chemical Abstracts Service (CAS) is designated as a significant new use to EPA receives a SNUN, EPA must either Registry number (if assigned for non- notify EPA at least 90 days before determine that the use is not likely to confidential chemical identities). commencing that activity. present an unreasonable risk of injury • Basis for the SNUR. The record for the proposed SNURs under the conditions of use for the • Information identified by EPA that on these chemicals was established as chemical substance or take such would help characterize the potential docket EPA–HQ–OPPT–2019–0226. regulatory action as is associated with health and/or environmental effects of That record includes information an alternative determination before the the chemical substances if a considered by the Agency in developing manufacture or processing for the manufacturer or processor is these proposed SNURs. significant new use can commence. If considering submitting a SNUN for a

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significant new use designated by the Basis for action: The PMN states that a manufacturer or processor is SNUR. the generic (non-confidential) use of the considering submitting a SNUN for a This information may include testing substance will be as an adhesive for significant new use that would be not required to be conducted but which open, non-dispersive use. Based on the designated by this proposed SNUR. EPA would help characterize the potential physical/chemical properties of the has determined that the results of health and/or environmental effects of PMN substance and SAR analysis of test specific target organ toxicity, the PMN substance. Any data on analogous substances, EPA has reproductive toxicity, developmental recommendation for information identified concerns for sensitization, if toxicity and irritation testing would identified by EPA was made based on the chemical substance is used in ways help characterize the potential health EPA’s consideration of available other than as intended by the PMN effects of the PMN substances. screening-level data, if any, as well as submitter. Other conditions of use of the CFR citations: 40 CFR 721.11296 (P– other available information on PMN substance that EPA intends to 18–239) and 40 CFR 721.11297 (P–18– appropriate testing for the chemical assess before they occur include the 240). substance. Further, any such testing following: V. Rationale and Objectives of the identified by EPA that includes testing 1. Manufacture (including import) of Proposed Rule on vertebrates was made after the PMN substance with isocyanate consideration of available toxicity residuals greater than 7% and polymeric A. Rationale information, computational toxicology isocyanate residuals greater than 13%. During review of the PMNs submitted and bioinformatics, and high- 2. Consumer or commercial use (i.e., for the chemical substances that are the throughput screening methods and their industrial use only). subject of these proposed SNURs and as prediction models. EPA also recognizes The proposed SNUR would designate further discussed in Unit IV, EPA that whether testing/further information as a ‘‘significant new use’’ these identified certain other reasonably is needed will depend on the specific conditions of use. foreseen conditions of use, in addition exposure and use scenario in the SNUN. Potentially useful information: EPA to those conditions of use intended by EPA encourages all SNUN submitters to has determined that certain information the submitter. EPA has preliminarily contact EPA to discuss any potential about the human health toxicity of the determined that the chemical under the future testing. See Unit VII. for more PMN substance may be potentially intended conditions of use is not likely information. useful to characterize the health effects • CFR citation assigned in the of the PMN substance if a manufacturer to present an unreasonable risk. regulatory text section of these proposed or processor is considering submitting a However, EPA has not assessed risks rules. SNUN for a significant new use that associated with all of the reasonably The regulatory text section of these would be designated by this proposed foreseen and other potential conditions proposed rules specifies the activities SNUR. EPA has determined that the of use. EPA is proposing to designate designated as significant new uses. results of absorption and sensitization these conditions of use as significant Certain new uses, including production testing would help characterize the new uses to ensure that they do not volume limits and other uses designated potential health effects of the PMN occur without first going through a in the proposed rules, may be claimed substance. separate, subsequent EPA review and as CBI. CFR citation: 40 CFR 721.11295. determination process associated with a The chemical substances that are the SNUN. PMN Numbers: P–18–239 and P–18–240 subject of these proposed SNURs are B. Objectives undergoing premanufacture review. In Chemical names: N-alkyl addition to those conditions of use propanamide (generic) (P–18–239) and EPA is proposing SNURs for 3 intended by the submitter, EPA has N-alkyl acetamide (generic) (P–18–240) specific chemical substances which are identified certain other reasonably CAS numbers: Not available undergoing premanufacture review foreseen conditions of use. EPA has Basis for action: The PMNs state that because the Agency wants to achieve preliminarily determined that the the generic use of the substances will be the following objectives with regard to chemicals under their intended as reactants in coatings. Based on the the significant new uses that would be physical/chemical properties of the designated in this proposed rule: conditions of use are not likely to • present an unreasonable risk. However, PMN substances, and SAR analysis of EPA would have an opportunity to EPA has not assessed risks associated test data on analogous substances, EPA review and evaluate data submitted in a with all of the reasonably foreseen or has identified concerns for SNUN before the notice submitter other potential conditions of use for developmental and systemic toxicity begins manufacturing or processing a these chemicals. EPA is proposing to and skin, eye and lung irritation if the listed chemical substance for the chemical substances are used in ways described significant new use. designate these reasonably foreseen and • other potential conditions of use as other than as intended by the PMN EPA would be obligated to make a significant new uses. As a result, those submitter. Other conditions of use of the determination under TSCA section conditions of use are no longer PMN substances that EPA intends to 5(a)(3) regarding the use described in reasonably foreseen to occur without assess before they occur include the the SNUN, under the conditions of use. first going through a separate, following: The Agency will either determine under • subsequent EPA review and Any use of the PMN substances TSCA section 5(a)(3)(C) that the determination process associated with a other than as the confidential use significant new use is not likely to SNUN. described in the PMNs. present an unreasonable risk, including The substances subject to these The proposed SNUR would designate an unreasonable risk to a potentially proposed rules are as follows: as a ‘‘significant new use’’ these exposed or susceptible subpopulation conditions of use. identified as relevant by the PMN Number: P–16–417 Potentially useful information: EPA Administrator under the conditions of Chemical name: Isocyanate has determined that certain information use, or make a determination under terminated polyurethane resin (generic). about the health effects of the PMN TSCA section 5(a)(3) (A) or (B) and take CAS number: Not available. substances may be potentially useful if the required regulatory action associated

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with the determination, before for a chemical substance pursuant to a VIII. SNUN Submissions manufacture or processing for the rule, order or consent agreement under According to 40 CFR 721.1(c), persons significant new use of the chemical TSCA section 4 (15 U.S.C. 2603), then submitting a SNUN must comply with substance can occur. TSCA section 5(b)(1)(A) (15 U.S.C. • the same notification requirements and EPA would be able to complete its 2604(b)(1)(A)) requires such information EPA regulatory procedures as persons review and determination on each of the to be submitted to EPA at the time of submitting a PMN, including PMN substances, while deferring submission of the SNUN. submission of test data on health and analysis on the significant new uses In the absence of a rule, order, or environmental effects as described in 40 proposed in these rules unless and until consent agreement under TSCA section CFR 720.50. SNUNs must be submitted the Agency receives a SNUN. 4 covering the chemical substance, on EPA Form No. 7710–25, generated Issuance of a proposed SNUR for a persons are required only to submit using e-PMN software, and submitted to chemical substance does not signify that information in their possession or the Agency in accordance with the the chemical substance is listed on the control and to describe any other procedures set forth in 40 CFR 720.40 TSCA Inventory. Guidance on how to information known to or reasonably and 721.25. E–PMN software is determine if a chemical substance is on ascertainable by them (see 40 CFR available electronically at https:// the TSCA Inventory is available on the 720.50). However, upon review of PMNs www.epa.gov/reviewing-new-chemicals- internet at https://www.epa.gov/tsca- and SNUNs, the Agency has the under-toxic-substances-control-act-tsca. inventory. authority to require appropriate testing. Unit IV. lists potentially useful IX. Economic Analysis VI. Applicability of the Proposed Rules information for all SNURs listed here. to Uses Occurring Before the Effective EPA has evaluated the potential costs Descriptions are provided for Date of the Final Rule of establishing SNUN requirements for informational purposes. The potentially potential manufacturers and processors To establish a significant new use, useful information identified in Unit IV. of the chemical substances subject to EPA must determine that the use is not will be useful to EPA’s evaluation in the this proposed rule. EPA’s complete ongoing. The chemical substances event that someone submits a SNUN for economic analysis is available in the subject to this proposed rule were the significant new use. Companies who docket under docket ID number EPA– undergoing premanufacture review at are considering submitting a SNUN are HQ–OPPT–2019–0226. the time of signature of this proposed encouraged, but not required, to develop rule and were not on the TSCA the information on the substance, which X. Statutory and Executive Order Inventory. In cases where EPA has not may assist with EPA’s analysis of the Reviews received a notice of commencement SNUN. Additional information about these (NOC) and the chemical substance has EPA strongly encourages persons, statutes and Executive Orders can be not been added to the TSCA Inventory, before performing any testing, to consult found at https://www.epa.gov/laws- no person may commence such with the Agency pertaining to protocol regulations-and-executive-orders. activities without first submitting a selection. Furthermore, pursuant to PMN. Therefore, for the chemical TSCA section 4(h), which pertains to A. Executive Order 12866: Regulatory substances subject to these proposed reduction of testing in vertebrate Planning and Review and Executive SNURs, EPA concludes that the animals, EPA encourages consultation Order 13563: Improving Regulations proposed significant new uses are not with the Agency on the use of and Regulatory Review ongoing. alternative test methods and strategies This proposed rule would establish EPA designates July 2, 2019, as the (also called New Approach SNURs for 6 new chemical substances cutoff date for determining whether the Methodologies, or NAMs), if available, that were the subject of PMNs. The new use is ongoing. The objective of to generate the recommended test data. Office of Management and Budget EPA’s approach is to ensure that a EPA encourages dialog with Agency (OMB) has exempted these types of person cannot defeat a SNUR by representatives to help determine how actions from review under Executive initiating a significant new use before best the submitter can meet both the Order 12866 (58 FR 51735, October 4, the effective date of the final rule. data needs and the objective of TSCA 1993) and 13563 (76 FR 3821, January Persons who begin commercial section 4(h). 21, 2011). manufacture or processing of the The potentially useful information chemical substances for a significant described in Unit IV. may not be the B. Paperwork Reduction Act (PRA) new use identified on or after that date only means of providing information to According to the PRA, 44 U.S.C. 3501 would have to cease any such activity evaluate the chemical substance et seq., an Agency may not conduct or upon the effective date of the final rule. associated with the significant new sponsor, and a person is not required to To resume their activities, these persons uses. However, submitting a SNUN respond to a collection of information would have to first comply with all without any test data may increase the that requires OMB approval under PRA, applicable SNUR notification likelihood that EPA will take action unless it has been approved by OMB requirements and EPA would have to under TSCA section 5(e) or 5(f). EPA and displays a currently valid OMB take action under TSCA section 5 recommends that potential SNUN control number. The OMB control allowing manufacture or processing to submitters contact EPA early enough so numbers for EPA’s regulations in title 40 proceed. that they will be able to conduct the of the CFR, after appearing in the appropriate tests. Federal Register, are listed in 40 CFR VII. Development and Submission of SNUN submitters should be aware part 9, and included on the related Information that EPA will be better able to evaluate collection instrument or form, if EPA recognizes that TSCA section 5 SNUNs which provide detailed applicable. does not require development of any information on the following: The information collection particular new information (e.g., • Human exposure and requirements related to this action have generating test data) before submission environmental release that may result already been approved by OMB of a SNUN. There is an exception: If a from the significant new use of the pursuant to PRA under OMB control person is required to submit information chemical substances. number 2070–0012 (EPA ICR No. 574).

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This action does not impose any burden this proposed SNUR are not expected to environmental health or safety risks requiring additional OMB approval. If be significant or adversely impact a disproportionately affecting children. an entity were to submit a SNUN to the substantial number of small entities. In H. Executive Order 13211: Actions Agency, the annual burden is estimated a SNUR that published in the Federal Concerning Regulations That to average between 30 and 170 hours Register of June 2, 1997 (62 FR 29684) Significantly Affect Energy Supply, per response. This burden estimate (FRL–5597–1), the Agency presented its Distribution, or Use includes the time needed to review general determination that final SNURs instructions, search existing data are not expected to have a significant This proposed rule is not subject to sources, gather and maintain the data economic impact on a substantial Executive Order 13211 (66 FR 28355, needed, and complete, review, and number of small entities, which was May 22, 2001), because this action is not submit the required SNUN. provided to the Chief Counsel for expected to affect energy supply, Send any comments about the Advocacy of the Small Business distribution, or use and because this accuracy of the burden estimate, and Administration. action is not a significant regulatory any suggested methods for minimizing action under Executive Order 12866. respondent burden, including through D. Unfunded Mandates Reform Act the use of automated collection (UMRA) I. National Technology Transfer and Advancement Act (NTTAA) techniques, to the Director, Regulatory Based on EPA’s experience with Support Division, Office of Mission proposing and finalizing SNURs, State, In addition, since this action does not Support (2822T), Environmental local, and Tribal governments have not involve any technical standards, Protection Agency, 1200 Pennsylvania been impacted by these rulemakings, NTTAA section 12(d), 15 U.S.C. 272 Ave. NW, Washington, DC 20460–0001. and EPA does not have any reasons to note, does not apply to this action. Please remember to include the OMB believe that any State, local, or Tribal control number in any correspondence, J. Executive Order 12898: Federal government will be impacted by this Actions To Address Environmental but do not submit any completed forms proposed rule. As such, EPA has to this address. Justice in Minority Populations and determined that this proposed rule does Low-Income Populations C. Regulatory Flexibility Act (RFA) not impose any enforceable duty, This action does not entail special Pursuant to section 605(b) of the RFA, contain any unfunded mandate, or otherwise have any effect on small considerations of environmental justice 5 U.S.C. 601 et seq., the Agency hereby related issues as delineated by certifies that promulgation of this governments subject to the requirements of UMRA sections 202, 203, 204, or 205 Executive Order 12898 (59 FR 7629, proposed SNUR would not have a February 16, 1994). significant adverse economic impact on (2 U.S.C. 1531–1538 et seq.). a substantial number of small entities. E. Executive Order 13132: Federalism List of Subjects in 40 CFR Part 721 The requirement to submit a SNUN Environmental protection, Chemicals, This action would not have a applies to any person (including small Hazardous substances, Reporting and substantial direct effect on States, on the or large entities) who intends to engage recordkeeping requirements. in any activity described in the final relationship between the national Dated: June 30, 2019. rule as a ‘‘significant new use.’’ Because government and the States, or on the these uses are ‘‘new,’’ based on all distribution of power and Tala Henry, information currently available to EPA, responsibilities among the various Deputy Director, Office of Pollution it appears that no small or large entities levels of government, as specified in Prevention and Toxics. presently engage in such activities. A Executive Order 13132 (64 FR 43255, Therefore, it is proposed that 40 CFR SNUR requires that any person who August 10, 1999). part 721 is amended as follows: intends to engage in such activity in the F. Executive Order 13175: Consultation future must first notify EPA by and Coordination With Indian Tribal PART 721—[AMENDED] submitting a SNUN. Although some Governments small entities may decide to pursue a ■ 1. The authority citation for part 721 significant new use in the future, EPA This proposed rule would not have continues to read as follows: cannot presently determine how many, Tribal implications because it is not Authority: 15 U.S.C. 2604, 2607, and if any, there may be. However, EPA’s expected to have substantial direct 2625(c). effects on Indian Tribes. This proposed experience to date is that, in response to ■ 2. Add §§ 721.11295 through rule would not significantly nor the promulgation of SNURs covering 721.11298 to subpart E to read as uniquely affect the communities of over 1,000 chemicals, the Agency follows: receives only a small number of notices Indian Tribal governments, nor does it per year. For example, the number of involve or impose any requirements that Subpart E—Significant New Uses for SNUNs received was seven in Federal affect Indian Tribes. Accordingly, the Specific Chemical Substances fiscal year (FY) 2013, 13 in FY2014, six requirements of Executive Order 13175 Sec. in FY2015, 12 in FY2016, 13 in FY2017, (65 FR 67249, November 9, 2000), do 721.11295 Isocyanate terminated and 11 in FY2018, only a fraction of not apply to this proposed rule. polyurethane resin (generic). these were from small businesses. In 721.11296 N-alkyl propanamide (generic). G. Executive Order 13045: Protection of 721.11297 N-alkyl acetamide (generic). addition, the Agency currently offers Children From Environmental Health relief to qualifying small businesses by and Safety Risks Subpart E—Significant New Uses for reducing the SNUN submission fee from Specific Chemical Substances $16,000 to $2,800. This lower fee This action is not subject to Executive reduces the total reporting and Order 13045 (62 FR 19885, April 23, § 721.11295 Isocyanate terminated recordkeeping of cost of submitting a 1997), because this is not an polyurethane resin (generic). SNUN to about $10,116 for qualifying economically significant regulatory (a) Chemical substance and small firms. Therefore, the potential action as defined by Executive Order significant new uses subject to reporting. economic impacts of complying with 12866, and this action does not address (1) The chemical substance generically

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identified as isocyanate terminated P–18–240) is subject to reporting under ADDRESSES: You may submit comments, polyurethane resin (generic) (PMN P– this section for the significant new uses identified by Docket ID FEMA–2017– 16–417) is subject to reporting under described in paragraph (a)(2) of this 0025, by one of the following methods: this section for the significant new uses section. Federal eRulemaking Portal: http:// described in paragraph (a)(2) of this (2) The significant new uses are: www.regulations.gov. Follow the section. (i) Industrial, Commercial, and instructions for submitting comments. (2) The significant new uses are: consumer activities. Requirements as Mail/Hand Delivery/Courier: (i) Industrial, Commercial, and specified in § 721.80(j). Regulatory Affairs Division, Office of consumer activities. Requirements as (ii) [Reserved]. Chief Counsel, Federal Emergency specified in § 721.80(l) and (o). It is a (b) Specific requirements. The Management Agency, 8NE, 500 C Street significant new use to manufacture provisions of subpart A of this part SW, Washington, DC 20472. (including import) the substance with apply to this section except as modified FOR FURTHER INFORMATION CONTACT: isocyanate residuals greater than 7% by this paragraph (b). Sarah Ice, Federal Insurance and and polymeric isocyanate residuals (1) Recordkeeping. Recordkeeping Mitigation Administration, FEMA, 400 greater than 13%. requirements as specified in C St. SW, Washington, DC 20472 (mail); (ii) [Reserved]. § 721.125(a) through (c), and (i) are (202) 320–5577 (phone); or (b) Specific requirements. The applicable to manufacturers, importers, provisions of subpart A of this part [email protected] and processors of this substance. (email). apply to this section except as modified (2) Limitations or revocation of by this paragraph (b). certain notification requirements. The SUPPLEMENTARY INFORMATION: (1) Recordkeeping. Recordkeeping provisions of § 721.185 apply to this I. Public Participation requirements as specified in section. § 721.125(a) through (c), and (i) are (3) Determining whether a specific use We encourage you to participate in applicable to manufacturers, importers, is subject to this section. The provisions this rulemaking by submitting and processors of this substance. of § 721.1725(b)(1) apply to paragraph comments and related materials. We (2) Limitations or revocation of (a)(2)(i) of this section. will consider all comments and material certain notification requirements. The received during the comment period. [FR Doc. 2019–14431 Filed 7–5–19; 8:45 am] provisions of § 721.185 apply to this If you submit a comment, identify the section. BILLING CODE 6560–50–P agency name and the docket ID for this rulemaking, indicate the specific section § 721.11296 N-alkyl propanamide (generic). of this document to which each DEPARTMENT OF HOMELAND comment applies, and give the reason (a) Chemical substance and SECURITY for each comment. You may submit significant new uses subject to reporting. your comments and material by (1) The chemical substance generically Federal Emergency Management electronic means, mail, or delivery to identified as N-alkyl propanamide Agency the address under the ADDRESSES (PMN P–18–239) is subject to reporting section. Please submit your comments under this section for the significant 44 CFR Part 62 and material by only one means. new uses described in paragraph (a)(2) Regardless of the method used for of this section. [Docket ID FEMA–2017–0025] submitting comments or material, all (2) The significant new uses are: submissions will be posted, without (i) Industrial, Commercial, and RIN 1660–AA90 change, to the Federal e-Rulemaking consumer activities. Requirements as Portal at http://www.regulations.gov, specified in § 721.80(j). National Flood Insurance Program (ii) [Reserved]. (NFIP); Revisions to Methodology for and will include any personal (b) Specific requirements. The Payments To Write Your Own (WYO) information you provide. Therefore, provisions of subpart A of this part Companies submitting this information makes it apply to this section except as modified public. You may wish to read the AGENCY: Federal Emergency by this paragraph (b). Privacy and Security Notice that is Management Agency, DHS. (1) Recordkeeping. Recordkeeping available via a link on the homepage of requirements as specified in ACTION: Advance Notice of Proposed www.regulations.gov. § 721.125(a) through (c), and (i) are Rulemaking. Viewing comments and documents: applicable to manufacturers, importers, For access to the docket to read SUMMARY: As directed by the Biggert- background documents or comments and processors of this substance. Waters Flood Insurance Reform Act of (2) Limitations or revocation of received, go to the Federal e- 2012, the Federal Emergency certain notification requirements. The Rulemaking Portal at http:// Management Agency (FEMA) intends to provisions of § 721.185 apply to this www.regulations.gov. The public may modify the way it pays private section. also inspect background documents and insurance companies participating in (3) Determining whether a specific use submitted comments at FEMA, Office of the Write Your Own (WYO) Program. is subject to this section. The provisions Chief Counsel, 500 C Street SW, FEMA seeks comment regarding of § 721.1725(b)(1) apply to paragraph Washington, DC 20472–3100. possible approaches to incorporating (a)(2)(i) of this section. actual flood insurance expense data into II. Glossary of Terms, Abbreviations, § 721.11297 N-alkyl acetamide (generic). the payment methodology that FEMA and Frequently Used Acronyms (a) Chemical substance and uses to determine the amount of To aid the reader, the following significant new uses subject to reporting. payments to WYO companies. glossary (Table 1) defines technical (1) The chemical substance generically DATES: Comments must be submitted by terms most commonly used throughout identified as N-alkyl acetamide (PMN September 6, 2019. this notice.

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TABLE 1—GLOSSARY OF FREQUENTLY USED TECHNICAL TERMS

Term Definition

Allocated Loss Adjustment Expense (ALAE) ...... A loss adjustment expense that is assignable or allocable to a specific claim, usually adjuster fees. Credibility ...... (1) An actuarial term describing the degree of accuracy in forecasting future events based on statistical reporting of past events. (2) The weight assigned or assignable to observed data in contrast to that assigned to an external or broader-based set of data. Credibility is used to provide a measure of the rel- ative predictive value of the data being reviewed. Weights can be determined through detailed formulas or by judgment. The weight assigned should gen- erally increase with the number of exposure bases in the observed data and should decrease with higher levels of variability in the observed data. General Expenses ...... An insurer’s marketing, operating, and administrative expenses. Does not include loss adjustment expenses. Incurred Loss ...... Sustained losses, paid or not, during a specified time period. Incurred losses are typically found by combining losses paid during the period plus unpaid losses sustained during the time period minus outstanding losses at the beginning of the period incurred in the previous period. Loss Adjustment Expense (LAE) ...... The cost of investigating and adjusting a loss. Net Written Premium ...... Written premium less deductions for reinsurance premiums and any commissions resulting from the purchase of reinsurance. Paid Losses ...... Losses and allocated loss adjustment expenses (ALAE) paid to policyholders during a financial reporting period. Ratio ...... Percent. For example, the percentage of ratio 2:4 is 50%. (2:4 can be written as 2⁄4; 2 divided by 4 equals .5, or 50%). Special Allocated Loss Adjustment Expense (SALAE) ...... A loss adjustment expense assignable or allocable to a specific claim that is not covered as ALAE because the expense is not applicable in a standard claim. For example, an insurance company may need to hire an engineer to deter- mine if flooding caused a covered loss or an expert to determine the extent of damage to a large piece of machinery. SALAE also includes litigation costs as- sociated with a specific claim. Unallocated Loss Adjustment Expense (ULAE) ...... All external, internal, and administrative claims handling expenses, including de- termination of coverage, that are not included in allocated or special allocated loss adjustment expenses. Written Premium ...... The premium registered on the books of an insurer or a reinsurer at the time a policy is issued and paid for. This also includes any changes to that premium due to cancellations or mid-term endorsements.

To further aid the reader, the TABLE 2—ABBREVIATIONS AND may carry out the NFIP through the following table (Table 2) provides ACRONYMS—Continued facilities of the Federal government, abbreviations and acronyms frequently using, for the purposes of providing used in this notice. flood insurance coverage, insurance Term Abbreviation/ Acronym companies and other insurers, insurance TABLE 2—ABBREVIATIONS AND agents and brokers, and insurance Write Your Own ...... WYO ACRONYMS adjustment organizations, as fiscal agents of the United States. See 42 III. Background U.S.C. 4071. Term Abbreviation/ Acronym A. The National Flood Insurance Pursuant to this authority, FEMA Program (NFIP) and the Write Your Own works closely with the insurance Allocated Loss Adjustment ALAE (WYO) Program industry to facilitate the sale and Expense. servicing of flood insurance policies. A Biggert-Waters Flood Insur- BW–12 The National Flood Insurance Act of person can purchase an NFIP flood ance Reform Act of 2012. 1968 (NFIA), as amended (42 U.S.C. insurance policy, also known as the Federal Emergency Manage- FEMA 4001 et seq.), authorizes the Standard Flood Insurance Policy (SFIP), ment Agency. Administrator of the Federal Emergency either: (1) Directly from the Federal Federal Insurance and Miti- FIMA Management Agency (FEMA) to government through a direct servicing gation Administration. establish and carry out the NFIP to agent, or (2) from a private insurance Homeowner Flood Insurance HFIAA enable interested persons to purchase company (referred to as a WYO Affordability Act of 2014. insurance against loss resulting from Loss Adjustment Expense ... LAE company) through the WYO Program. physical damage to, or loss of, real or The SFIP sets out the terms and National Association of In- NAIC personal property arising from flood in surance Commissioners. conditions of insurance. FEMA the United States. See 42 U.S.C. 4011(a). National Flood Insurance Act NFIA establishes terms of insurance and rates, of 1968. Congress intended the NFIP to be ‘‘a which are the same whether purchased National Flood Insurance NFIP program of flood insurance with large- directly from the NFIP or through the Program. scale participation of the Federal WYO Program. Special Allocated Loss Ad- SALAE Government and carried out to the FEMA enters into a standard justment Expense. maximum extent practicable by the Financial Assistance/Subsidy Unallocated Loss Adjustment ULAE private insurance industry.’’ See 42 Arrangement (Arrangement) with the Expense. U.S.C. 4001(b). Under the NFIA, FEMA WYO companies, which addresses the

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terms and conditions for administering WYO companies for selling, writing, required to develop pursuant to the NFIP policies, including and servicing NFIP policies and subsection (b). FEMA intends to adopt compensation. FEMA publishes the adjusting claims. FEMA must develop a replacement WYO payment annual Arrangement in the Federal such methodology using ‘‘actual methodology via the notice-and- Register. See 44 CFR 62.23(a). FEMA expense data for the flood insurance comment rulemaking process in order to published the Fiscal Year 2019 line.’’ FEMA can derive the comply with this direction. Arrangement in March 2018, which methodology from either: (1) Flood became effective October 1, 2018. 83 FR insurance expense data provided by C. Current WYO Payment Methodology 11772 (Mar. 16, 2018). WYO companies; (2) flood insurance As set forth in the FY 2019 B. Legislative Mandate To Revise the expense data collected by the National Arrangement, FEMA currently pays WYO Compensation Methodology Association of Insurance WYO companies for their expenses by Commissioners; or (3) a combination of authorizing companies to retain a Congress enacted the Biggert-Waters previous two methods. This Flood Insurance Reform Act of 2012 portion of the premiums they collect on methodology is due 180 days following behalf of the NFIP. Article III of the (BW–12) (Title II, Subtitle A of Public the enactment of BW–12. Law 112–141, 126 Stat. 405) to extend Arrangement describes the methodology the NFIP’s authorities through Subsection (d) instructs FEMA to for calculating the amount WYO September 30, 2017, and to adopt ‘‘issue a rule’’ adopting a revised WYO companies may keep as compensation. significant program reform. Section payment methodology. Such This includes the methodology for 100224 of BW–12 (42 U.S.C. 4081 note) methodology must specify paying WYO companies for their directs FEMA, the Government compensation in both catastrophic and marketing, operating, and Accountability Office (GAO), and WYO non-catastrophic loss years and be administrative expenses (collectively companies to take a series of actions structured to ensure reimbursements referred to as general expenses) (Article designed to improve the oversight of track the actual expenses of WYO III.B of the Arrangement) and the compensation provided to WYO companies as closely ‘‘as practicably methodology for compensating WYO companies under the WYO program. possible.’’ Based on the structure of companies for their loss adjustment Subsection (b) directs FEMA to section 100224, FEMA believes that expenses (LAE) (Article III.C of the develop a methodology for determining Congress intended that the rule also Arrangement). Figure 1 illustrates this the amount of reimbursements paid to align with the methodology FEMA is payment methodology.

1. Marketing, Operating, and FEMA calculates the Base WYO Multiple Peril, and Commercial Administrative Expenses (General Expense Allowance Percentage (D in Multiple Peril (non-liability portion).2 It Expenses) (B in Figure 1) Figure 1) and then adds additional amounts, as described below. To Article III.B of the Arrangement water damage; explosion, riot, and civil commotion; determine the Base WYO Expense growing crops; flood; rain; and damage from aircraft authorizes WYO companies to retain a Allowance Percentage, FEMA begins and vehicle. See http://www.naic.org/consumer_ certain percentage of the written with data from five non-flood insurance glossary.htm. premiums they collect for the NFIP as lines, namely Homeowners Multiple 2 The non-liability portion is the portion that compensation for their general Peril, Fire, Allied Lines,1 Farmowners deals with property insurance; the liability portion expenses, including the costs of covers non-property based risks, such as civil marketing, selling, and servicing 1 ‘‘Allied Lines’’ are coverages which are liability for libel, slander, negligence, and unlawful generally included with property insurance, such as employment practices. The property side is the side policies. glass, tornado, windstorm and hail; sprinkler and Continued

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uses these five insurance lines because premiums of all five lines is: 25%, 25%, TABLE 3—WYO EXPENSE ALLOW- (1) data on flood insurance expenses has 25%, 15%, and 10%, respectively, ANCE PERCENTAGE—Continued only recently become widely available; FEMA multiplies each expense ratio by (2) current reporting of flood insurance its portion of total premiums. FEMA Percent of writ- expenses has limited reliability; and (3) then adds the products to get an annual Arrangement ten premium paid these non-flood lines are the most weighted average expense ratio for the year to WYO for gen- eral expenses similar to flood insurance.3 FEMA non-flood insurance lines of insurance obtains data for these five insurance of 8.1% 2011 ...... 30.2 lines from A.M. Best Company’s ((2.6×0.25)+(9×0.25)+(11×0.25)+ 2012 ...... 30.4 Aggregates and Averages publication.4 (13×0.15)+(5×0.1)=8.1%). 2013 ...... 30.7 Each of these five insurance lines has To account for variability from year to 2014 ...... 30.7 various expense categories. FEMA uses year, FEMA then takes the annual 2015 ...... 30.8 three expense categories that fit most weighted average expense ratio that it 2016 ...... 30.9 closely with flood insurance expenses. calculated for each of the previous 4 2017 ...... 30.9 These include ‘‘General Expenses,’’ years, plus the weighted average 2018 ...... 30.9 2019 ...... 6 30 ‘‘Other Acquisition Expenses,’’ and expense ratio for the current year and averages them. For example, if the ‘‘Taxes, Licenses, and Fees.’’ For each In addition to these amounts, FEMA current year expense ratio is 8.1%, the expense category, FEMA divides actual also provides for the possibility of a previous year 1 ratio is 6%, the previous expenses by the written premium to growth bonus. (F in Figure 1). See year 2 ratio is 4%, the previous year 3 come up with an expense ratio. For Arrangement III.B.3. The actual bonus ratio is 8%, and the previous year 4 example, if the General Expenses are varies by the extent a WYO company ratio is 3%, then FEMA would add $50 and the written premiums are meets certain marketing goals. The total these ratios together (8.1 + 6 + 4 + 8 +3 $5,000, FEMA divides $50 by $5,000 to growth bonus paid to all WYO = 29.1%), and then divide 29.1% by 5 come up with an expense ratio of 1%, companies may not exceed 2 percent of meaning General Expenses equaled 1% to get an average expense ratio of 5.82%. aggregate written premium for all of the written premium. The Base WYO Expense Allowance companies. Prior to the 2019 After FEMA calculates the expense Percentage would then be 5.82%. ratio for each of the three expense FEMA then adds an additional 15 Arrangement, an individual company categories, it adds them together to percentage points to pay WYO could not receive a growth bonus of come up with the total expense ratio for companies for commissions or salaries more than 2 percent of such individual each of the five insurance lines of insurance agents, brokers, or other company’s written premium. See, e.g. identified above. For example, if the entities producing qualified flood FY 2018 Arrangement, Art. III.B.3. expense ratio for General Expenses is insurance applications and other related 2. Loss Adjustment Expenses (LAE) (C 1%, for Other Acquisition Expenses is expenses (E in Figure 1). See in Figure 1) Arrangement III.B.2. Prior to the Fiscal 5%, and for Taxes, Licenses, and Fees LAE are expenses incurred in the is 2%, FEMA then adds all three Year 2019 Arrangement, FEMA also course of adjusting insurance claims.7 together (1 + 5 + 2) to come up with the added an additional 1 percentage point There are three categories of LAE in the total expense ratio for that insurance to the Base WYO Expense Allowance Arrangement: (1) unallocated loss line (1 + 5 + 2=8%), which in this Percentage to account for the additional adjustment expenses (ULAE), (2) scenario is 8%. FEMA does this complexity associated with selling and allocated loss adjustment expenses calculation for each of the five servicing NFIP policies. See FY 2018 (ALAE), and (3) special allocated loss insurance lines. Once it has the total Arrangement, Art. III.B.1, 82 FR 17017, 17020 (Apr. 4, 2017); Arrangement, 44 adjustment expenses (SALAE). expense ratio for each of the five ULAE (H in Figure 1) are expenses a insurance lines, it weight averages them CFR 62, App. A, Art. III.B ¶ 2 WYO company incurs while adjusting (using written premiums as weights) to (Arrangement applicable prior to FY flood insurance claims but cannot determine the average expense ratio for 2018).5 attribute to a specific claim. Examples of all five lines of insurance combined. For From 2009 to 2017, the percentages of ULAE include general overhead, example, if the expense ratios for each written premium for each year (which adjuster supervision expenses, and of the five insurance lines is: 2.6%, 9%, include the Base WYO Expense catastrophic response resources, such as 11%, 13%, and 5%, and each line Allowance Percentage, the extra 1 mobile claim response units. FEMA expressed as a portion of the total percentage point for years prior to FY 2019, and the 15 percentage points for reimburses ULAE based on a ‘‘ULAE Schedule.’’ Arrangement III.C.1. The most akin to flood insurance and so FEMA uses that agent commissions), were as follows: side for its calculation. Fiscal Year 2017 schedule provides for 3 As explained later in this notice, in December TABLE 3—WYO EXPENSE 0.9 percent of net written premium and 2016, the Government Accountability Office (GAO) 1.5 percent of incurred loss.8 FEMA found that insurers were not consistently reporting ALLOWANCE PERCENTAGE flood insurance expense data to the National 7 Association of Insurance Commissioners, resulting Percent of writ- Adjusting an insurance claim is a determination in underreporting of certain underwriting and loss Arrangement ten premium paid of the amount payable by the insurer to the insured expenses for their flood insurance lines. See GAO, year to WYO for gen- on a claim under an insurance policy. Flood Insurance: FEMA Needs to Address Data eral expenses 8 Prior to Hurricane Katrina, FEMA reimbursed Quality and Consider Company Characteristics ULAE based on 3.3 percent of incurred losses, as When Revising Its Compensation Methodology (Jan. 2009 ...... 29.8 that was the number FEMA determined was 9, 2017), at http://www.gao.gov/products/GAO-17- 2010 ...... 30.0 required to maintain sufficient WYO company 36. participation in the NFIP program. Katrina, 4 A.M. Best is an independent rating agency that however, revealed that in a high-severity localized focuses on the insurance industry. See http:// 5 See 81 FR 84483 (Nov. 23, 2016) (removing the event, a payment of 3.3 percent of incurred losses www.ambest.com. A.M. Best obtains their data from Arrangement from regulation). resulted in significant overpayments to WYO financial statements submitted to the National 6 Percentage reflects the FY 2019 Arrangement’s companies. For this reason, FEMA removed the Association of Insurance Commissioners (NAIC) by one percent reduction in compensation for general percentage from the Arrangement and instead insurers in order to comply with State insurance expenses. The rate would have been 31 percent communicated it on an annual basis. See 73 FR regulator reporting requirements. without FY19 Arrangement’s 1 percent reduction. 18182, 18184–5 (April 3, 2008). Following this

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calculates incurred loss based on claims Manual, Appendix A.9 The schedule TABLE 4—ALAE FEE SCHEDULE— that have been reported to the WYO provides for a range of flat rate fees Continued company. FEMA excludes any estimate varying according to the disposition of by the WYO company for additional a claim and the amount of the gross paid Claim Range Fee dollars the WYO company will pay on loss.10 The ALAE schedule is claims from flooding events that have reproduced in part below: $100,000.01– 2.6% but not less already happened but have not yet been $250,000.00. than $4,250. reported to the company. Further, in TABLE 4—ALAE FEE SCHEDULE $250,000.01– 2.4% but not less calculating incurred loss for those $1,000,000.00. than $7,800. claims already reported to the company, Claim Range Fee $1,000,000.01 and up .. 2.2% but not less than $24,000. FEMA includes both amounts already Erroneous Assignment $95.00. paid on those claims and the estimate Claim Withdrawn ...... $95.00. The current ULAE and ALAE by the company of amounts remaining Closed Without Pay- $395.00. to be paid on those claims. ment (CWOP). schedules have resulted in payments ALAE (I in Figure 1) are adjustment .01–$1,000.00 ...... $525.00. equal to 6.7 percent of the total losses expenses attributable to specific claims, $1,000.01–$5,000.00 ... $800.00. paid (the amount actually paid for such as fees to adjusters. FEMA pays for $5,000.01–$10,000.00 $1,035.00. claims) during the last 5 years for which $10,000.01–$15,000.00 $1,175.00. data is available. However, annual paid ALAE for adjuster expenses according to $15,000.01–$25,000.00 $1,275.00. a fee schedule, but only after the claim $25,000.01–$35,000.00 $1,475.00. losses and the annual amount of LAE has been closed. Arrangement III.C.2. $35,000.01–$50,000.00 $1,750.00. payments that are incurred to service The NFIP published the current ALAE $50,000.01– 3.4% but not less them vary widely in that period, as seen fee schedule in 2017. See NFIP Claims $100,000.00. than $1,750. in the Table 5:

TABLE 5—AMOUNT FEMA PAID FOR ALAE AND ULAE 11 [$ Thousands]

D. Payment for LAE/Paid Arrangement year A. Paid B. ALAE C. ULAE Loss Ratio Loss Paid Paid (B+C)/A = D (percent)

2013 ...... $7,463,580 $295,439 $137,529 5.80 2014 ...... 741,729 33,205 37,803 9.57 2015 ...... 687,407 28,116 36,358 9.38 2016 ...... 1,864,887 61,930 73,571 7.27 2017 ...... 3,376,735 107,296 141,216 7.36 5-Yr Total/Avg ...... 14,134,338 525,986 426,476 6.74

SALAE include specialized claims year. However, administering this small concerns with FEMA’s methodology for handling expenses attributable to a portion on a dollar-for-dollar calculating the amount FEMA pays specific claim, such as for legal, reimbursement basis requires significant WYO companies. In August 2009, GAO surveying, or engineering support. administrative oversight on the part of issued a report entitled, ‘‘Flood Unlike ULAE and ALAE, FEMA does FEMA. FEMA program staff review each Insurance: Opportunities Exist to not use a schedule to reimburse SALAE, reimbursement request to ensure fair Improve Oversight of the WYO but rather pays for SALAE on a dollar- pricing and reasonable use of Program’’ (2009 GAO Report).13 In the for-dollar reimbursement basis.12 professional services. Specific for report, GAO criticized the NFIP for not SALAE represents a very small reimbursement of litigation of claims, considering actual flood insurance portion of the National Flood Insurance FEMA employs several dedicated expense information when it determines Program’s expenses and overall claims program and legal staff members to the amount it pays the WYO company process. In 2015, FEMA’s internal data oversee reimbursement of WYO for selling and servicing flood insurance indicates that 8.10 percent of claims companies for their legal expenses. policies and adjusting claims. 2009 involved SALAE payments, which cost GAO Report, 5–6. As part of the review, D. Findings of Inadequacies in Current 0.47 percent of losses incurred for that GAO examined the expense payments Methodology year. In 2016, 2.57 percent of claims FEMA made to six WYO companies for involved SALAE payments, which cost Relevant to this discussion, the GAO their actual expenses for calendar years 0.18 percent of losses incurred for that has issued two reports outlining its 2005 through 2007. Id. at 6. GAO found

change FEMA altered its ULAE reimbursement 7e7526b3/Appendix_A_Adjuster_Fee_ for the Write Your Own program. All amounts method to decrease variations between low and Schedule.pdf. shown in this table track payments to the high-payout years. Accordingly, it decreased its 10 ‘‘Gross Loss’’ is the agreed cost to repair before Arrangement Year (Oct 1 through Sep 30) in which payment of incurred losses to 1.5 percent, and application of depreciation or the applicable they were made. This is in contrast to other began reimbursing 1 percent of net written deductible(s), but subject to policy limitations (such methods of tracking payments (see, e.g., Table 7) to premiums, eventually reaching today’s level at .9 percent of net written premiums. (The net written as those dollar amounts specified in Coverage B — the year the flood occurred. premium percentage was designed to cover Personal Property Special Limits and Coverage C — 12 The basic SALAE guideline is WYO Bulletin expenses that are more fixed; as such, it is more Other Coverages, Loss Avoidance Measures and W–10039 (April 1, 2010), available at https:// static and thus avoids overcompensation during Property Removed to Safety) and exclusions. bsa.nfipstat.fema.gov/wyobull/2010/w-10039.pdf. 11 disaster years.) Data were based on annual end of year 13 GAO–09–455 (Sept. 21, 2009), available at 9 https://www.fema.gov/media-library-data/ financial statements for the National Flood http://www.gao.gov/products/GAO-09-455. 1535556801689-ef2b1232f884cc6e4396a8cc Insurance Program and expenses paid exclusively

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that the payments exceeded the WYO included. Id. Accordingly, GAO found to a lack of quality data on actual companies’ actual expenses by $327.1 that the consistency of WYO companies’ expenses. million, or 16.5 percent of total reporting to NAIC needs to be improved E. WYO Expenses Reported to NAIC payments made. Id. in order for data on the companies’ Compared to WYO Compensation However, the 2009 GAO report also expenses to be fully utilized. See id. at found inconsistencies in the actual 5–6. FEMA has examined the difference flood expenses data obtained by the National Association of Insurance In December 2016, GAO issued between payments made under the Commissioners (NAIC). Id. at 5–6. GAO another report entitled, ‘‘Flood current methodology and the actual found that some companies reported Insurance: FEMA Needs to Address Data expenses reported by WYO companies their flood insurance expenses to NAIC Quality and Consider Company to the NAIC between 2009 and 2013, the after offsetting them with the payments Characteristics When Revising Its latest year data is available for either they received from FEMA. Id. In other Compensation Methodology’’ (2016 methodology.15 The results appear in instances, it found that companies GAO Report).14 In this report, GAO Table 6. FEMA found that the included payments made under service affirmed its 2009 recommendations and reimbursement rate for general expenses agreements with affiliated companies found that FEMA has yet to revise its under the current methodology that may have included profit WYO compensation methodology to exceeded the actual flood expense ratio distributions that should not have been reflect actual expenses, due in large part calculated using NAIC data.

TABLE 6—GENERAL EXPENSES: REPORTED FLOOD INSURANCE EXPENSES RATIO (i.e., REPORTED GENERAL EXPENSES AS PERCENTAGE OF REPORTED WRITTEN PREMIUM) VS. CURRENT METHODOLOGY 16

C. NAIC Reported Table 3. General Percent of A. NAIC B. NAIC Expenses as Written Arrangement year Reported Reported Percentage Premium Paid General Written of Reported to WYO for Expenses Premium Written General Premium Expenses A/B = C

2013 ...... 697,027,000 2,937,809,000 23.7 30.7 2014 ...... 719,039,000 2,911,660,000 24.7 30.7 2015 ...... 684,714,000 2,756,173,000 24.8 30.8 2016 ...... 723,487,000 2,759,584,000 26.2 30.9 2017 ...... 746,587,000 2,744,213,000 27.2 30.9 5-Yr Total/Avg ...... 3,570,854,000 14,109,439,000 25.3 30.8

FEMA also analyzed LAE and found amounts FEMA pays under the current consistently lower ratios (i.e., lower similar results, i.e., the reimbursement methodology show variation from year LAE relative to paid loss) (column C of rate under the current methodology to year; some years have lower LAE/loss Table 7) than what FEMA pays under exceeded the actual flood expense ratio ratios while other years have higher the current LAE methodology (last using NAIC data. Both the actual ratios. However, as seen in Table 7, the column of Table 7, which lists data from expense data from the NAIC and the NAIC actual expense data indicates Table 5).

TABLE 7—LOSS ADJUSTMENT EXPENSES (LAE) AS A PERCENT OF PAID LOSSES: REPORTED BY NAIC VS. PAID UNDER CURRENT METHODOLOGY [In $ Thousands]

C. NAIC Reported LAE D. From A. NAIC B. NAIC Table 5 as Percentage Payment for 1 Reported Reported Calendar year/Arrangement year of NAIC LAE/Paid Paid Loss LAE Paid 2 Reported Loss Ratio 3 Paid Loss (percent) (B ÷ A = C)

2013 ...... $6,393,676 $334,276 5.23 5.80 2014 ...... 588,622 61,435 10.44 9.57 2015 ...... 829,042 65,192 7.86 9.38 2016 ...... 3,091,250 141,377 4.57 7.27 2017 ...... 7,189,144 347,127 4.83 7.36

14 GAO–17–36 (Dec. 8, 2016), available at http:// 16 These reported figures for flood insurance shown here because of the FY19 Arrangement’s www.gao.gov/products/GAO-17-36. expense data are the latest available as of November 1 percent reduction in compensation for general 15 In order to control for non-credible data in 2018. FEMA notes that the future differences expenses. some NAIC reports, FEMA only used data from between NAIC reported expenses and the participating WYO companies reporting expense corresponding WYO Expense Allowances will be ratios of 10 percent and above. slightly different than the historical difference

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TABLE 7—LOSS ADJUSTMENT EXPENSES (LAE) AS A PERCENT OF PAID LOSSES: REPORTED BY NAIC VS. PAID UNDER CURRENT METHODOLOGY—Continued [In $ Thousands]

C. NAIC D. From Reported LAE Table 5 A. NAIC B. NAIC as Percentage 1 Payment for Calendar year/Arrangement year Reported Reported of NAIC LAE/Paid Paid Loss LAE Paid 2 Reported Loss Ratio 3 Paid Loss (percent) (B ÷ A = C)

5-Yr Average ...... 3,618,347 189,882 5.25 6.74 1 Both ‘‘Calendar Year’’ and ‘‘Arrangement Year’’ are presented in one column for user ease. Although there is a calendar year and an ar- rangement year for each year of data, FEMA’s definitions of the two differ. Specifically, here the calendar year represents January 1 through De- cember 31. The arrangement year represents the time frame (generally the 365 days) covered in the standard Financial Assistance/Subsidy Ar- rangement with private sector property insurers, also known as Write Your Own (WYO) companies, to sell NFIP flood insurance policies under their own names and adjust and pay claims arising under the Standard Flood Insurance Policy (SFIP). See 42 U.S.C. 4081(a). 2 In column B, the LAE values listed are the sum of both ULAE and ALAE for each year. SALAE is not included in the values. 3 In column D, the values include only payments made for ULAE and ALAE for each arrangement year. SALAE is not included in the values, as reported in Table 5.

IV. Possible Methodologies methodology (described in section III.C would obtain this data from A.M. Best FEMA is considering three possible of this ANPRM). Credibility weighting Company’s Aggregates and Averages methodologies for calculating payments combines two or more values. In this publication, as FEMA does under its to WYO companies. The three case, the values would be the expense current methodology. The actual flood methodologies only address payments compensation ratios under the current insurance expense ratio would cover the for general and loss adjustment methodology and those yielded by flood ‘‘General Expenses,’’ ‘‘Other Acquisition expenses incurred by WYO companies. insurance expense data. However, a Expenses,’’ ‘‘Taxes, Licenses, and Fees,’’ FEMA is considering additional weight is applied to each value to and ‘‘Agent Commission’’ expense regulatory actions to address the introduce a greater influence of one over categories incurred by insurance possibility of additional non-expense the other in the final result. The weights companies, averaged over the previous related payments, such as for profit or are based on actuarial opinion of the five years for which reliable and performance-based incentives. quality, robustness, and representative complete data are available. FEMA FEMA presents these possible nature of the available data, and can projects that, based on data reported by methodologies in order to solicit differ from year to year. How these WYO companies to the NAIC for FY comments from the public. FEMA factors are considered will vary based 2013 through FY 2017, this would yield intends to use these comments to inform on the specific procedure or procedures an expense ratio of 25.3 percent of the publication of a notice of proposed used to incorporate credibility. Such written premium (i.e., actual expenses rulemaking that will propose a new procedures include Bayesian credibility are 25.3 percent of the written procedures, empirical credibility WYO payment methodology in the premiums) before credibility procedures, and classical credibility future. weighting.19 procedures.18 A. Credibility Weighting Methodology: Credibility weighting procedures The non-flood insurance industry Incorporating Actual Expense Data Into allow FEMA to incorporate flood expense ratio would be the expense Current Methodology expense data in WYO compensation, ratios for the five non-flood property/ FEMA is considering a payment while adjusting the impact of such data casualty insurance lines used in the approach that uses credibility weighting to account for its shortcomings. As data current methodology. The ratios would procedures 17 to incorporate actual flood from the NAIC becomes a more credible cover the ‘‘General Expenses,’’ ‘‘Other expense data into FEMA’s current indicator of actual flood expenses, this Acquisition Expenses,’’ and ‘‘Taxes, methodology will allow FEMA to give it Licenses, and Fees’’ expense categories, 17 The Actuarial Standard Board defines greater weight. Under this approach, averaged over the previous five years, ‘‘credibility procedure’’ as: ‘‘A process that involves FEMA would steadily increase usage of then adding the static 15 percent agent the following: (a) The evaluation of subject actual flood expense data over time, as commission percentage of the current experience for potential use in setting assumptions that data increases in credibility, while general expense scheme (discussed in without reference to other data; or (b) the identification of relevant experience and the continuing to draw from the non-flood section III.C.1. of this ANPRM). FEMA selection and implementation of a method for insurance expense data currently in use expects this would yield an expense blending the relevant experience with the subject in the near term. ratio of 30 percent of written premium experience.’’ Actuarial Standards Board, Actuarial 20 Standard of Practice No. 25: Credibility Procedures, 1. General Expenses before credibility weighting. 2 (Dec. 2013), available at http://www.actuarial standardsboard.org/wp-content/uploads/2014/02/ For general expenses, FEMA would 19 25.3 percent is estimated based on a 5-year asop025_174.pdf. ‘‘Subject experience’’ means ‘‘[a] credibility weight two sources of average of NAIC-reported data of WYO companies specific set of data drawn from the experience expense data: The actual flood who reported expenses within the 10 percent and under consideration for the purpose of predicting insurance expense ratio and the non- above range. FEMA limited analysis of NAIC data the parameter under study.’’ Id. ‘‘Relevant to this specific range because it deemed WYO- experience’’ means ‘‘[s]ets of data, that include data flood insurance expense ratio. FEMA reported expenses below 10 percent to be less than other than the subject experience, that, in the credible, based on number of firms reporting and actuary’s judgment, are predictive of the parameter 18 See Actuarial Standards Board, Actuarial general experience with the WYO program and the under study (including but not limited to loss Standard of Practice No. 25: Credibility Procedures, NFIP. ratios, claims, mortality, payment patterns, 5–6 (Dec. 2013), available at http://www.actuarial 20 30 percent is based on data from FY 2014 persistency, or expenses). Relevant experience may standardsboard.org/wp-content/uploads/2014/02/ through FY 2016 (which were factored into the include subject experience as a subset.’’ Id. asop025_174.pdf. Continued

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Based on the current NAIC actual incurred by WYO companies by credibility of flood expense data flood expense data, FEMA estimates regularly examining the validity of the obtained from the NAIC. While the that the credibility-weighted general current LAE fee schedule and revising credibility of this data continues to expense ratio for FY 2019 would be that LAE fee schedule using historical improve, it is not likely fully credible at approximately 28.8 percent of written LAE payment experience. this time. See GAO–17–36 (Dec. 8, premium (based on preliminary Using this approach, FEMA’s 2016). Any approach that depends estimates that assume an initial preliminary calculations indicate that entirely on the use of flood expense data credibility weighting of only 25 percent LAE under the unified fee schedule in would, at least in the short term, suffer for the self-reported NAIC data). This FY 2019 would result in a payment rate from the same deficiencies as the would represent approximately a $36.63 of 7.63 percent of paid losses (the dollar current methodology, in that it would million decrease in general expense amount of claims paid by the NFIP), not be an accurate representation of the payments to WYO companies in FY which is a reduction of 0.66 percentage actual expenses incurred by WYO 2019, as compared to the current points from the FY 2019 compensation companies in carrying out their compensation baseline in 2019. As the rate of 8.29 percent under the current obligations under the WYO Program. flood expense data collected by the LAE compensation methodology.21 This Over the long term, this approach NAIC becomes more credible, this would represent an approximately could result in payments that closely approach would assign greater weight to $20.28 million decrease in LAE align with the actual reported flood the flood insurance expense ratio. payments to WYO companies in the first expenses. However, relying solely on year. Over time, the LAE payment rate flood expense data would very likely 2. LAE would better align with the year-to-year result in wide gaps in what FEMA As noted above, FEMA currently LAE expenses because FEMA would would pay year-to-year. This is because reimburses ULAE and ALAE using likely assign an increasing credibility to unlike expenses for non-flood lines, different methods. It reimburses ULAE the NAIC flood expense data and each which tend to be evenly distributed and based on 0.9 percent of written year’s experience would inform and thus relatively stable, flooding tends to premium and 1.5 percent of incurred improve the next year’s rates. FEMA occur all at one time. Because flooding loss, and ALAE according to a schedule expects an increase in credibility is not an evenly distributed hazard, it is based on a range of flat-rate fees. Under because of FEMA’s ongoing difficult to insure. FEMA could the credibility weighting approach, collaboration with the NAIC to improve continue its practice of averaging FEMA would no longer reimburse data quality and the NAIC’s issuance of expense data over 5 years in order to ULAE and ALAE separately using these guidance on the proper accounting of smooth sudden changes in expenses. different methods. Instead, FEMA reimbursements to Write Your Own Tailoring payments to WYO companies would use one new fee schedule companies. FEMA has also improved its to their actual expenses in the long (modeled after the current ALAE monitoring of WYO expenses related to term, therefore, would place the schedule) to determine reimbursements litigation, see WYO Bulletin W–16045 methodology solely on a self-reported for both. Because FEMA would use the (July 19, 2016), engineering inspections, basis, which is not immune from same reimbursement schedule for both, see WYO Bulletins W–15010 (Mar. 9, manipulation and other potential it would no longer need to differentiate 2015), and overall expense reporting, irregularities. FEMA would be required between ULAE and ALAE; as such, this see WYO Bulletin W–16048 (Aug. 4, to rely entirely on data provided by the new fee schedule would depict the 2016). See, e.g., N.C. Gen. Stat. § 58–2– NAIC, regardless of its credibility, overall LAE payment rate. FEMA’s 180 (willful misstatement of information which, as noted above, GAO identified reimbursement for SALAE would in certain financial or other statements); as a source of concern. remain unchanged because FEMA Va. Code Ann. § 38.2–2027 (withholding Based on the current NAIC actual currently pays for SALAE on a dollar- of certain information and giving false flood expense data, FEMA projects that for-dollar reimbursement basis, and or misleading information to the the general expense ratio for FY 2019 would continue to do so. Commissioner of Insurance, statistical would be approximately 25.3 percent of FEMA would revise this LAE fee rating agencies, or any other insurer). written premium (based on preliminary schedule annually to minimize the estimates that average the most recent difference from year to year between B. Methodology Based Completely on three years of expense ratios based on actual LAE that WYO companies incur Flood Expense Data self-reported NAIC data). This would as reported by NAIC and what FEMA FEMA is also considering a represent approximately a $146.51 pays to cover those incurred expenses. methodology that uses solely actual million decrease in general expense FEMA would minimize this difference flood insurance expense data, meaning payments to WYO companies in FY by adjusting the previous annual LAE it would no longer use industry expense 2019. fee schedule by applying a certain ratios as part of the calculation. Under In addition, using this approach, calculated percentage. FEMA would this approach, FEMA would use FEMA’s preliminary calculations calculate this percentage by credibility reported flood expense data to indicate that LAE under the unified fee weighting (1) the payment amounts that determine reasonable flood expense schedule in FY 2019 would result in a FEMA would have made if the most payment ratios by dividing previous payment rate of 5.67 percent of paid recent LAE fee schedule had been in years’ general expenses by the losses (the dollar amount of claims paid place during recent years and (2) the associated written premium. Setting by the NFIP), which is a reduction of payment amounts that FEMA would payment rates entirely on publicly 2.62 percentage points from the FY 2019 have paid under the current LAE fee available expense data collected from compensation rate of 8.29 percent under schedule, revised to yield the actual the NAIC would likely be the simplest the current LAE compensation reported LAE expenses for the same approach for FEMA to administer, but methodology in FY 2019.22 This would period. In essence, FEMA would would depend entirely on the have represented an approximately incorporate actual reported expenses 21 As a reference point, the average historical 22 As a reference point, the average historical WYO compensation rates between FY 2017 and FY compensation rate for ALAE and ULAE from 2013– compensation rate for ALAE and ULAE from 2013– 2019). 2017 was 6.74 percent of total paid losses. 2017 was 6.74 percent of total paid losses.

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$81.11 million decrease in LAE needs to address in the revised DEPARTMENT OF TRANSPORTATION payments to WYO companies in FY methodology? Federal Motor Carrier Safety 2018. 2. What recommendations do you Administration C. Methodology Based on Invoices have for improving the current WYO In a third possible methodology, expense compensation methodology? 49 CFR Part 385 FEMA would pay WYO companies on a 3. What credibility weighting direct, invoice-supported, dollar-for- procedures should FEMA consider [Docket No. FMCSA–2019–0081] dollar reimbursement basis, similar to using, if any? RIN 2126–AA64 how FEMA currently pays for SALAE. 4. Do the five non-flood property/ This approach would be based on the casualty lines of insurance act as a good Certification for Conducting Driver or actual expenditures of WYO companies approximation of flood insurance Vehicle Inspections, Safety Audits, or and would allow FEMA to collect general expenses in the credibility Investigations detailed expenditure data. This would weighting-based approach? If FEMA give FEMA more monitoring and control AGENCY: Federal Motor Carrier Safety over WYO expenditures while ensuring continues to use non-flood property/ Administration (FMCSA), DOT. casualty lines of insurance, what lines that payments directly reflect an ACTION: Notice of proposed rulemaking. individual WYO company’s incurred should FEMA consider adding or expenses. It would also avoid the subtracting from this list? SUMMARY: FMCSA proposes to consequences associated with the year- 5. Should FEMA merge payments for incorporate by reference the current to-year variability of expenses discussed ULAE into the existing ALAE fee policy and practices for FMCSA above. However, this approach would schedule so that ULAE payments are employees, State or local government likely create significant administrative better tailored to the severity of a flood employees, and contractors to obtain burdens for the NFIP and WYO event? and maintain certifications for companies. FEMA employs several legal conducting driver or vehicle 6. Does NAIC flood expense data and program staff members in order to inspections, safety audits, or accurately reflect the actual expenses oversee current SALAE reimbursements, investigations. The Fixing America’s and an expansion of direct incurred by WYO companies? What are Surface Transportation Act (FAST Act) reimbursements to cover all loss the challenges of ensuring accurate data requires FMCSA to incorporate by adjustment expenses would entail are provided to the NAIC and how can reference in its regulations the expanded cost burdens, given the they best be overcome? Commercial Vehicle Safety Alliance’s volume of losses and the number of 7. What, if any, alternative data (CVSA) ‘‘Operational Policy 4: Inspector claims against which compensation sources can provide WYO company Training and Certification.’’ The CVSA would be tied. The timely processing of expense data that are more accurate policy is currently Attachment A to each claim’s related expenses from each than what the NAIC captures? FMCSA’s ‘‘Certification Policy for WYO company would not be possible 8. What, if any, additional costs Employees Who Perform Inspections, given current staff and administrative would WYO companies incur if Investigations, and Safety Audits.’’ This capacity of FEMA and as a result, proposed rule, if adopted, also would required to submit all NFIP-related expansion of the reimbursement replace an interim final rule (IFR) in expenses for reimbursement as they are concept would likely require hiring place since 2002 that referenced the incurred (i.e., the third alternative numerous new staff members. Without certification procedures published on referenced above)? such an increase in FEMA processing the FMCSA website. FMCSA proposes staff, a direct reimbursement 9. Does the structure of the current to replace selected provisions of the IFR methodology for all LAE expenses ALAE fee schedule adequately take into by incorporating by reference the would result in reimbursement delays account the differences in incurred FMCSA policy. No changes would be and disruption to both the policyholders expenses between catastrophic and non- made to the certification policy or and WYO companies. WYO companies catastrophic loss years? procedures currently followed by would likely incur significant additional 10. What changes to the current individuals to obtain and maintain administrative expenses. methodology would allow FEMA to certification to conduct driver or vehicle V. Public Comment better distinguish between catastrophic inspections, safety audits, or investigations. Other provisions of the FEMA seeks public comment on all and non-catastrophic years in paying out LAE? IFR would be republished without aspects of a revised WYO payment change. methodology, with particular interest in 11. What individual characteristics of better understanding the implication of WYO companies could be used to better DATES: Comments on this document the three methodologies described tailor a payment methodology to the must be received on or before above. FEMA will use the received actual expenses of individual September 6, 2019. comments to inform future rulemaking companies? ADDRESSES: You may submit comments on the subject. Comments accompanied identified by Docket Number FMSCA– 12. What additional data may help by supporting data and analysis of the 2019–0081 using any of the following FEMA better understand actual issues addressed in those comments methods: would provide the greatest assistance to expenses of WYO companies? • Federal eRulemaking Portal: http:// FEMA. Additionally, FEMA would Authority: 42 U.S.C. 4081 note. www.regulations.gov. Follow the online derive particular benefit from instructions for submitting comments. commenters addressing one or more of Pete Gaynor, • Mail: Docket Management Facility, the following questions: Acting Administrator, Federal Emergency U.S. Department of Transportation, 1200 1. What are the limitations with the Management Agency. New Jersey Avenue SE, West Building, current WYO expense compensation [FR Doc. 2019–14343 Filed 7–5–19; 8:45 am] Ground Floor, Room W12–140, methodology that you believe FEMA BILLING CODE 9111–52–P Washington, DC 20590–0001.

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• Hand Delivery or Courier: U.S. your comment into the text box on the II. Executive Summary Department of Transportation, 1200 following screen. Choose whether you A. Summary of the Proposed Regulatory New Jersey Avenue SE, West Building, are submitting your comment as an Action Ground Floor, Room W12–140, individual or on behalf of a third party Washington, DC, between 9 a.m. and 5 and then submit. FMCSA proposes to incorporate by reference the current policy and p.m., Monday through Friday, except If you submit your comments by mail practices for FMCSA employees, State Federal holidays. or hand delivery, submit them in an • Fax: (202) 493–2251. or local government employees, and unbound format, no larger than 81⁄2 by To avoid duplication, please use only contractors to obtain and maintain 11 inches, suitable for copying and one of these four methods. See the certifications for conducting driver or electronic filing. If you submit ‘‘Public Participation and Request for vehicle inspections,1 safety audits, or comments by mail and would like to Comments’’ portion of the investigations. Under section 5205 of know that they reached the facility, SUPPLEMENTARY INFORMATION section for the FAST Act (note following 49 U.S.C. please enclose a stamped, self-addressed instructions on submitting comments. 31148), the FMCSA Administrator is postcard or envelope. Viewing incorporation by reference required to incorporate by reference the material: You may view the material FMCSA will consider all comments certification standards for conducting proposed for incorporation by reference and material received during the driver or vehicle inspections issued by in the docket, online at https:// comment period and may change this CVSA. Currently, CVSA’s ‘‘Operational www.fmcsa.dot.gov/certification, or at proposed rule based on your comments. Policy 4: Inspector Training and the Federal Motor Carrier Safety FMCSA may issue a final rule at any Certification’’ (rev. Sept. 21, 2017) is Administration, Office of Enforcement time after the close of the comment Attachment A to FMCSA’s and Compliance, 1200 New Jersey Ave. period. ‘‘Certification Policy for Employees Who Perform Inspections, SE, Washington, DC 20590–0001 B. Viewing Comments and Documents between 8:00 a.m. and 5:00 p.m., Investigations, and Safety Audits.’’ Monday through Friday, except Federal To view comments, as well as any FMCSA also proposes to replace an holidays. The telephone number is (202) documents mentioned in this preamble IFR titled ‘‘Certification of Safety 385–2400. as being available in the docket, go to Auditors, Safety Investigators, and FOR FURTHER INFORMATION CONTACT: Mr. http://www.regulations.gov. Insert the Safety Inspectors,’’ published March 19, Paul Bomgardner, Chief, Hazardous docket number, FMSCA–2019–0081, in 2002 (67 FR 12776). That IFR provided Materials Division, Office of the keyword box, and click ‘‘Search.’’ the certification requirements by Enforcement and Compliance, Federal Next, click the ‘‘Open Docket Folder’’ referencing FMCSA’s website, which Motor Carrier Safety Administration, button and choose the document to contains FMCSA’s policy on 1200 New Jersey Avenue SE, review. If you do not have access to the certification and training requirements. Washington, DC 20590–0001, by internet, you may view the docket by Rather than simply referencing the policy on the FMCSA website, this telephone at (202) 493–0027 or by visiting the Docket Management Facility NPRM proposes to replace selected email, [email protected]. If you in Room W12–140 on the ground floor provisions of the IFR by formally have questions on viewing or submitting of the DOT West Building, 1200 New incorporating by reference the FMCSA material to the docket, contact Docket Jersey Avenue SE, Washington, DC policy. No changes would be made to Services, telephone (202) 366–9826. 20590, between 9 a.m. and 5 p.m. ET, the certification policy or procedures SUPPLEMENTARY INFORMATION: Monday through Friday, except Federal holidays. currently followed by individuals to I. Public Participation and Request for obtain and maintain certification to Comments C. Privacy Act conduct driver or vehicle inspections, safety audits, or investigations. Other A. Submitting Comments In accordance with 5 U.S.C. 553(c), provisions of the IFR would be If you submit a comment, please DOT solicits comments from the public republished without change. include the docket number for this to better inform its rulemaking process. The certification policy only applies notice of proposed rulemaking (NPRM) DOT posts these comments, without to FMCSA employees and contractors (Docket No. FMSCA–2019–0081), edit, including any personal information and State or local government indicate the specific section of this the commenter provides, to employees and contractors funded document to which the comment www.regulations.gov, as described in through FMCSA’s Motor Carrier Safety applies, and provide a reason for each the system of records notice (DOT/ALL Assistance Program (MCSAP) who wish suggestion or recommendation. You 14—FDMS), which can be reviewed at to obtain or maintain certification to may submit your comments and www.transportation.gov/privacy. conduct driver or vehicle inspections, material online or by fax, mail, or hand D. Waiver of Advance Notice of safety audits, or investigations. This delivery, but please use only one of Proposed Rulemaking rulemaking would not change any these means. FMCSA recommends that regulatory requirements applicable to you include your name and a mailing If a regulatory proposal is likely to motor carriers, drivers, or commercial address, an email address, or a lead to the promulgation of a major rule, motor vehicles. As such, there would be telephone number in the body of your FMCSA is required to either publish an no impact on motor carriers or drivers. advance notice of proposed rulemaking document so that FMCSA can contact B. Costs and Benefits you if there are questions regarding your (ANPRM), unless the Agency finds good submission. cause that an ANPRM is impracticable, Because no changes are proposed to To submit your comment online, go to unnecessary, or contrary to the public the current FMCSA certification policy, http://www.regulations.gov, put the interest, or conduct a negotiated docket number, FMSCA–2019–0081, in rulemaking (49 U.S.C. 31136(g)). 1 Throughout this NPRM, FMCSA uses the term ‘‘driver or vehicle inspection’’ in lieu of the term the keyword box, and click ‘‘Search.’’ However, this rulemaking would not ‘‘roadside inspection,’’ recognizing that these When the new screen appears, click on result in the promulgation of a major inspections are not necessarily conducted at the ‘‘Comment Now!’’ button and type rule under the statute. ‘‘roadside.’’

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there are neither costs nor benefits assess a motor carrier’s safety The IFR added a ‘‘safety audit’’ in associated with this rulemaking. performance and compliance with the § 385.3 as a new type of safety review Federal Motor Carrier Safety with the purpose of assessing safety III. Legal Basis for the Rulemaking Regulations (FMCSRs) and applicable performance in new entrant motor FMCSA’s authority for this Hazardous Materials Regulations carriers. Finally, the IFR added rulemaking is from two statutes, section (HMRs). Compliance reviews were § 350.211(17) 2 to require State and local 211 of the Motor Carrier Safety traditionally performed only of motor MCSAP partners to follow the Improvement Act of 1999 (MCSIA), carriers with poor performance, high certification requirements, a Public Law 106–159, 113 Stat. 1748, crash rates, high vehicle or driver out- requirement that is not affected by this 1765–1766, 49 U.S.C. 31148 (Dec. 9, of-service rates, or past poor proposed rule. 1999), and section 5205 of the FAST compliance, or of motor carriers against On December 29, 2015, FMCSA Act, Public Law 114–94, 129 Stat. 1312, which a non-frivolous complaint was issued its current ‘‘Certification Policy 1537, note following 49 U.S.C. 31148 made. for Employees Who Perform (Dec. 4, 2015). As noted above, section 211 of the Inspections, Investigations, and Safety Section 211 of the MCSIA requires the MCSIA required the Secretary to issue Audits.’’ FMCSA’s policy includes four Secretary of Transportation to issue regulations to conduct ‘‘safety attachments. In October 2017, FMCSA regulations ‘‘to improve training and inspection audits and reviews.’’ The amended Attachment A of its policy to provide for the certification of motor Agency determined that phrase was incorporate the most recent version of carrier safety auditors . . . to conduct equivalent to the ‘‘safety review’’ of new CVSA’s ‘‘Operational Policy 4: Inspector safety inspection audits and reviews’’ entrants into the motor carrier industry Training and Certification,’’ which was under specified statutory provisions (49 that was mandated by section 210 of the revised on September 21, 2017. In U.S.C. 31148(a)). Subject to a MCSIA. Section 210 also required the March 2019, FMCSA amended grandfathering provision applicable to Secretary to ‘‘establish the elements of Attachment B, ‘‘Certification of Safety Federal and State employees who were the safety review,’’ and the Agency Inspectors, Safety Investigators, New qualified to conduct a safety inspection inferred that a ‘‘safety review’’ may be Entrant Safety Auditors, Commercial audit or review on December 9, 1999, something less than a full compliance Enforcement Specialists[,] Safety the statute requires that covered safety review (67 FR 12776, Mar. 19, 2002). Investigators Who Perform Cargo Tank inspection audits or reviews be FMCSA selected the term ‘‘safety audit’’ Facility Reviews, and Other Employees conducted by individuals certified for the new type of safety review to Who Maintain Certification.’’ under the regulations (49 U.S.C. avoid confusion with safety reviews that 31148(b)). While private contractors are were previously conducted by the V. Incorporations by Reference authorized to obtain certification, the Agency (67 FR 12777, Mar. 19, 2002). A. CVSA’s ‘‘Operational Policy 4: In response to the requirement in Secretary is not permitted to delegate Inspector Training and Certification’’ authority to private contractors to issue section 211 of the MCSIA that the ratings or operating authority (49 U.S.C. Agency improve training and provide In accordance with section 5205 of 31148(a) and (d)). Finally, the statute for the certification of motor carrier the FAST Act (note following 49 U.S.C. grants the Secretary authority over safety auditors, FMCSA issued an IFR 31148), FMCSA proposes to incorporate certified safety auditors, including the on March 19, 2002, titled ‘‘Certification by reference in its regulations CVSA’s authority to withdraw their certification of Safety Auditors, Safety Investigators, ‘‘Operational Policy 4: Inspector (49 U.S.C. 31148(e)). As further and Safety Inspectors’’ (67 FR 12776). Training and Certification,’’ revised explained below in the background This IFR modified 49 CFR 350.211 and September 21, 2017. This rulemaking section, on March 19, 2002, FMCSA 385.3, and added a new subpart C to would amend an incorporation by issued an IFR implementing this part 385 consisting of §§ 385.201, reference found at 49 CFR 385.4 to statutory provision (67 FR 12776). 385.203, and 385.205 pertaining to include CVSA’s policy. The policy Section 5205 of the FAST Act requires certification requirements. would be referenced in proposed FMCSA’s Administrator to revise 49 New subpart C referenced FMCSA’s § 385.209. CFR part 385 ‘‘to incorporate by website for the specific certification The CVSA policy ensures that reference the certification standards for requirements. The IFR stated in the commercial motor vehicle inspectors roadside inspectors issued by the preamble that all individuals who uploading driver or vehicle inspection Commercial Vehicle Safety Alliance’’ conduct safety audits, compliance reports and data into FMCSA (note following 49 U.S.C. 31148). reviews, or driver or vehicle inspections information systems are certified under This NPRM proposes to replace the would be required to perform a specific a training program that is approved by 2002 IFR issued under section 211 of number of safety audits, compliance CVSA. The policy provides the the MCSIA and to carry out section 5205 reviews, or inspections annually with standards for initial inspector of the FAST Act. acceptable quality; to successfully certification and maintenance of complete any required training to obtain inspector certification. It also provides IV. Background and maintain certification; and, when the decertification process and paths to Prior to the MCSIA, certification of necessary, to obtain recertification to regain certification. Federal safety investigators and State or perform reviews of motor carriers (67 FR The CVSA policy provides the local government employees 12777, Mar. 19, 2002). The IFR, minimum training and testing participating in MCSAP who performed however, did not include specific requirements and number of inspections compliance reviews or driver or vehicle training or certification requirements in an individual must complete to be inspections meant that those officials the regulatory text. Instead, the Agency certified to conduct the following types had successfully completed certain noted that it needed ‘‘flexibility to of driver or vehicle inspections: training programs. The training modify course content quickly to match • North American Standard Level I, requirements had been in effect for a changes in the FMCSRs and HMRs, or II, III, and V Inspections; number of years. to adapt other elements of the training FMCSA relied on the compliance process to changed circumstances’’ (67 2 This provision, as amended, is found currently review, an in-depth investigation, to FR 12777, Mar. 19, 2002). at 49 CFR 350.211(p).

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• Hazardous Materials/Dangerous FMCSA’s policy establishes VII. Section-by-Section Analysis Goods Inspection; certification requirements for This section-by-section analysis • Cargo Tank Inspection; individuals performing inspections, • describes the proposed changes in Other Bulk Packaging Inspection; safety audits, and investigations. • numerical order. Passenger Carrier Vehicle Attachment A of the policy provides Inspection; CVSA’s ‘‘Operational Policy 4: Inspector A. Section 385.3 Definitions and • North American Standard Level VI Training and Certification,’’ as Acronyms Inspection for Transuranic Waste and discussed above. Attachment B to the FMCSA proposes to republish the Highway Route Controlled Quantities FMCSA policy includes provisions definition of ‘‘safety audit’’ in paragraph (HRCQ) of Radioactive Material; and (2) of the definition of ‘‘reviews’’ • Performance-Based Brake Testing. addressing certification requirements to CVSA’s ‘‘Operational Policy 4: conduct safety audits, investigations, without change. As noted above, this Inspector Training and Certification’’ commercial enforcement investigations, action is necessary procedurally because that FMCSA is proposing to incorporate as well as additional certification the Agency proposes to replace the 2002 by reference is Attachment A of requirements for Commercial IFR. FMCSA’s ‘‘Certification Policy for Enforcement Specialists, and cargo tank B. Section 385.4 Matter Incorporated Employees Who Perform Inspections, facility reviews. Attachment B also by Reference Investigations, and Safety Audits,’’ and outlines the circumstances when FMCSA would make technical is available in the docket for this individuals conducting audits or changes to § 385.4(a) to update the rulemaking. Additionally, the CVSA investigations will be decertified and locations where the materials proposed policy is available, and will continue to the process for decertification. It to be incorporated by reference are be available, for inspection at the describes a temporary waiver process available for inspection. Paragraph (b) Federal Motor Carrier Safety that may be available when an would be revised to provide information Administration, Office of Enforcement individual becomes decertified due to about how CVSA’s ‘‘Operational Policy and Compliance, 1200 New Jersey reasons beyond his or her control and 4: Inspector Training and Certification’’ Avenue SE, Washington, DC 20590, the recertification process. Finally, (rev. Sept. 21, 2017) can be accessed and telephone (202) 385–2400, and online at Attachment B supplements the to incorporate it by reference. FMCSA https://www.fmcsa.dot.gov/certification. provisions of CVSA’s ‘‘Operational also would add a new § 385.4(c) that B. FMCSA’s ‘‘Certification Policy for Policy 4: Inspector Training and would incorporate by reference Employees Who Perform Inspections, Certification’’ (Attachment A), FMCSA’s December 29, 2015, Investigations, and Safety Audits’’ particularly as applicable to FMCSA ‘‘Certification Policy for Employees FMCSA also proposes to incorporate employees. Who Perform Inspections, Investigations, and Safety Audits,’’ as by reference in its regulations FMCSA’s Attachments C and D provide amended, and provide information December 29, 2015, ‘‘Certification templates addressing the documentation about how to access the policy. Policy for Employees Who Perform of individuals’ certification for FMCSA Inspections, Investigations, and Safety employees. Other entities have the C. Subpart C—Certification To Conduct Audits,’’ as amended, without change. option of using these templates or their Driver or Vehicle Inspections, Safety This rulemaking would incorporate by own documentation. Audits, and Safety Investigations reference FMCSA’s policy in 49 CFR 385.4 and reference it in proposed FMCSA’s ‘‘Certification Policy for Sections 385.201, 385.203, and 385.205 § 385.211. Employees Who Perform Inspections, FMCSA would remove and reserve FMCSA’s policy applies to FMCSA Investigations, and Safety Audits’’ is the provisions of existing subpart C of employees and contractors. It also available in the docket for this part 385, which consist of §§ 385.201, applies to State or local government rulemaking. Additionally, FMCSA’s 385.203, and 385.205, added by the IFR employees and contractors who are policy is available, and will continue to on March 19, 2002 (67 FR 12779). funded through MCSAP, who enforce be available, for inspection at the FMCSA would add new provisions applicable Federal statutes and Federal Motor Carrier Safety consisting of §§ 385.207, 385.209, and regulations, or who upload data into Administration, Office of Enforcement 385.211, under the revised subpart FMCSA information systems. The and Compliance, 1200 New Jersey heading, ‘‘Subpart C—Certification to policy includes the following Avenue SE, Washington, DC 20590, Conduct Driver or Vehicle Inspections, attachments: telephone (202) 385–2400, and online at Safety Audits, and Safety Attachment A: CVSA’s ‘‘Operational https://www.fmcsa.dot.gov/certification. Investigations.’’ Policy 4: Inspector Training and Section 385.207 Qualifications To Certification,’’ revised September 21, VI. Other Proposed Changes Perform a Driver or Vehicle Inspection, 2017; This NPRM proposes to replace the Attachment B: Certification of Safety Safety Audit, or Investigation of a Motor Inspectors, Safety Investigators, New 2002 IFR. That IFR amended § 385.3 by Carrier. Entrant Safety Auditors, Commercial adding the term ‘‘safety audit’’ in The heading of this new section Enforcement Specialists[,] Safety paragraph (2) of the definition of reflects the current language for Investigators Who Perform Cargo Tank ‘‘reviews.’’ If the IFR is replaced, it is describing driver or vehicle inspections. Facility Reviews, and Other Employees necessary procedurally to adopt the New § 385.207(a) would identify Who Maintain Certification, amended safety audit definition provided in the FMCSA employees, State or local March 2019; IFR, given that it has not been amended government employees, and contractors Attachment C: Acknowledgement of since adoption of the IFR. Therefore, as those who may qualify to perform a Initial Certification Completion and FMCSA proposes to republish the driver or vehicle inspection, safety Maintenance Requirement; and definition of a safety audit without audit, or investigation. It would update Attachment D: Employee Certification change to allow comment on the the terminology ‘‘driver or vehicle Status. definition. inspection, safety audit, or

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investigation.’’ Paragraph (b) would B. E.O. 13771 (Reducing Regulation small entities in understanding this provide that personnel who were and Controlling Regulatory Costs) proposed rule so that they can better certified before any final rule is effective E.O. 13771, Reducing Regulation and evaluate its effects on themselves and are grandfathered as long as they Controlling Regulatory Costs, does not participate in the rulemaking initiative. maintain their certification. apply to this action because it is not a If the proposed rule would affect your small business, organization, or Section 385.209 Requirements To significant regulatory action, as defined in section 3(f) of E.O. 12866. governmental jurisdiction and you have Obtain and Maintain Certification To questions concerning its provisions or Conduct Driver or Vehicle Inspections. C. Regulatory Flexibility Act options for compliance, please consult the FMCSA point of contact, Paul New § 385.209(a) would provide the The Regulatory Flexibility Act (RFA) Bomgardner, listed in the FOR FURTHER certification requirements to conduct of 1980 (5 U.S.C. 601 et seq.), as amended by the Small Business INFORMATION CONTACT section of this driver or vehicle inspections and proposed rule. specifically reference the requirements Regulatory Enforcement Fairness Act of 1996 (SBREFA) (Pub. L. 104–121, 110 Small businesses may send comments in CVSA’s ‘‘Operational Policy 4: Stat. 857), requires Federal agencies to on the actions of Federal employees Inspector Training and Certification,’’ consider the effects of the regulatory who enforce or otherwise determine proposed to be incorporated by action on small business and other compliance with Federal regulations to reference in § 385.4. Paragraph (b) small entities and to minimize any the Small Business Administration’s would provide that an individual who significant economic impact. The term Small Business and Agriculture qualifies to conduct inspections would ‘‘small entities’’ comprises small Regulatory Enforcement Ombudsman be required to maintain certification or businesses and not-for-profit and the Regional Small Business obtain recertification in accordance with organizations that are independently Regulatory Fairness Boards. The CVSA’s policy. owned and operated and are not Ombudsman evaluates these actions Section 385.211 Requirements To dominant in their fields, and annually and rates each agency’s Obtain and Maintain Certification To governmental jurisdictions with responsiveness to small business. If you Conduct Safety Audits or Investigations. populations of less than 50,000. wish to comment on actions by Accordingly, DOT policy requires an employees of FMCSA, call 1–888–REG– New § 385.211(a) would contain the analysis of the impact of all regulations FAIR (1–888–734–3247). DOT has a requirements for certification to conduct on small entities, and mandates that policy regarding the rights of small safety audits or investigations and agencies strive to lessen any adverse entities to regulatory enforcement specifically reference the requirements effects on these businesses. fairness and an explicit policy against in FMCSA’s ‘‘Certification Policy for This proposed rule would directly retaliation for exercising these rights. affect States and a limited number of Employees Who Perform Inspections, E. Unfunded Mandates Reform Act of contractors requiring certification. Investigations, and Safety Audits,’’ 1995 proposed to be incorporated by States do not meet the definition of a reference in § 385.4. Paragraph (b) ‘‘small entity’’ in section 601 of the The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires would address the requirements to RFA. Specifically, States are not Federal agencies to assess the effects of maintain certification and how an considered small governmental their discretionary regulatory actions. In individual who has lost certification jurisdictions under section 601(5), both particular, the Act addresses actions would be recertified. because State government is not included among the various levels of that may result in the expenditure by a VIII. Regulatory Analyses government listed in section 601(5), and State, local, or tribal government, in the because no State, including the District aggregate, or by the private sector of A. Executive Order (E.O.) 12866 of Columbia, has a population of less $161 million (which is the value (Regulatory Planning and Review), E.O. than 50,000, which is the criterion for equivalent of $100,000,000 in 1995, 13563 (Improving Regulation and a governmental jurisdiction to be adjusted for inflation to 2017 levels) or Regulatory Review), and DOT considered small under section 601(5). more in any 1 year. Though this Regulatory Policies and Procedures As the proposed rule would not result proposed rule would not result in such Under section 3(f) of E.O. 12866 (58 in costs or benefits, it would not impose an expenditure, the Agency does FR 51735, Oct. 4, 1993), Regulatory impacts on the limited number of discuss the effects of this rule elsewhere Planning and Review, as supplemented contractors that would be regulated in this preamble. under this rulemaking. Therefore, this by E.O. 13563 (76 FR 3821, Jan. 21, F. Paperwork Reduction Act proposed rule would not have an impact 2011), Improving Regulation and on a substantial number of small This proposed rule calls for no new Regulatory Review, this proposed rule entities. Because no changes are collection of information under the does not require an assessment of proposed to the current FMCSA Paperwork Reduction Act of 1995 (44 potential costs and benefits under certification policy, this rule would not U.S.C. 3501–3520). section 6(a)(4) of that Order. This result in changes for those affected. G. E.O. 13132 (Federalism) proposed rule is also not significant Thus, this rulemaking would not have a within the meaning of DOT regulatory significant economic impact on the A rule has implications for federalism policies and procedures (DOT Order regulated entities. under section 1(a) of E.O. 13132 if it has 2100.6, dated Dec. 20, 2018)). Consequently, I certify that the action ‘‘substantial direct effects on the States, Accordingly, the Office of Management would not have a significant economic on the relationship between the national and Budget has not reviewed it under impact on a substantial number of small government and the States, or on the these Orders. Because no changes are entities. distribution of power and proposed to the current FMCSA responsibilities among the various certification policy, there are neither D. Assistance for Small Entities levels of government.’’ Nothing in this costs nor benefits associated with this In accordance with section 213(a) of document preempts any State law or rulemaking. the SBREFA, FMCSA wants to assist regulation. Therefore, this proposed rule

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would not have sufficient federalism information as a result of this rule. P. National Environmental Policy Act of implications to warrant the preparation Accordingly, FMCSA has not conducted 1969 (NEPA) of a Federalism Impact Statement. a PIA. FMCSA analyzed this NPRM for the H. E.O. 12988 (Civil Justice Reform) L. E.O. 12372 (Intergovernmental purpose of NEPA (42 U.S.C. 4321 et seq.) and determined this action is This proposed rule meets applicable Review) categorically excluded from further standards in sections 3(a) and 3(b)(2) of analysis and documentation in an E.O. 12988, Civil Justice Reform, to The regulations implementing E.O. environmental assessment or minimize litigation, eliminate 12372 regarding intergovernmental environmental impact statement under ambiguity, and reduce burden. consultation on Federal programs and activities do not apply to this program. FMCSA Order 5610.1 (69 FR 9680, Mar. I. E.O. 13045 (Protection of Children) 1, 2004), Appendix 2, paragraph 6.d. M. E.O. 13211 (Energy Supply, E.O. 13045, Protection of Children The Categorical Exclusion (CE) in Distribution, or Use) from Environmental Health Risks and paragraph 6.d. covers regulations concerning the training, qualifying, Safety Risks (62 FR 19885, Apr. 23, FMCSA has analyzed this proposed licensing, certifying, and managing of 1997), requires agencies issuing rule under E.O. 13211, Actions ‘‘economically significant’’ rules, if the personnel. The proposed requirements Concerning Regulations That in this rule would be covered by this CE regulation also concerns an Significantly Affect Energy Supply, environmental health or safety risk that and the NPRM would not have any Distribution, or Use. The Agency has effect on the quality of the environment. an agency has reason to believe may determined that it is not a ‘‘significant disproportionately affect children, to The CE determination is available for energy action’’ under that order because include an evaluation of the regulation’s review in the docket. it is not a ‘‘significant regulatory action’’ environmental health and safety effects likely to have a significant adverse effect List of Subjects in 49 CFR Part 385 on children. The Agency determined Administrative practice and this proposed rule is not economically on the supply, distribution, or use of procedure, Highway safety, significant. Therefore, no analysis of the energy. Therefore, it does not require a Incorporation by reference, Mexico, impacts on children is required. In any Statement of Energy Effects under E.O. Motor carriers, Motor vehicle safety, event, the Agency does not anticipate 13211. Reporting and recordkeeping that this proposed regulatory action N. E.O. 13175 (Indian Tribal requirements. could in any respect present an Governments) environmental or safety risk that could In consideration of the foregoing, FMCSA proposes to amend 49 CFR disproportionately affect children. This proposed rule does not have chapter III, part 385 to read as follows: J. E.O. 12630 (Taking of Private tribal implications under E.O. 13175, Property) Consultation and Coordination with PART 385—SAFETY FITNESS Indian Tribal Governments, because it PROCEDURES FMCSA reviewed this proposed rule does not have a substantial direct effect in accordance with E.O. 12630, on one or more Indian tribes, on the ■ 1. The authority citation for part 385 Governmental Actions and Interference relationship between the Federal is revised to read as follows: with Constitutionally Protected Property government and Indian tribes, or on the Rights, and has determined it would not Authority: 49 U.S.C. 113, 504, 521(b), distribution of power and 5105(e), 5109, 5113, 13901–13905, 13908, effect a taking of private property or 31136, 31144, 31148, 31151, 31502; sec. 350, otherwise have taking implications. responsibilities between the Federal government and Indian tribes. Pub. L. 107–87, 115 Stat. 833, 864–868; sec. K. Privacy 5205, Pub. L. 114–94, 129 Stat. 1312, 1537; O. National Technology Transfer and and 49 CFR 1.87. The Consolidated Appropriations Act, Advancement Act (Technical ■ 2. In § 385.3, republish paragraph (2) 2005, (Pub. L. 108–447, 118 Stat. 2809, Standards) of the definition of ‘‘Reviews’’ to read as 3268, note following 5 U.S.C. 552a) follows: requires the Agency to conduct a The National Technology Transfer privacy impact assessment (PIA) of a and Advancement Act (note following § 385.3 Definitions and acronyms. regulation that will affect the privacy of 15 U.S.C. 272) directs agencies to use * * * * * individuals. This proposed rule would voluntary consensus standards in their Reviews. *** not require the collection of personally regulatory activities unless the agency (2) Safety audit means an examination identifiable information. provides Congress, through the Office of of a motor carrier’s operations to The Privacy Act (5 U.S.C. 552a) Management and Budget, with an provide educational and technical applies only to Federal agencies and any explanation of why using these assistance on safety and the operational non-Federal agency that receives standards would be inconsistent with requirements of the FMCSRs and records contained in a system of records applicable HMRs and to gather critical applicable law or otherwise impractical. from a Federal agency for use in a safety data needed to make an Voluntary consensus standards (e.g., matching program. assessment of the carrier’s safety The E-Government Act of 2002, specifications of materials, performance, performance and basic safety Public Law 107–347, sec. 208, 116 Stat. design, or operation; test methods; management controls. Safety audits do 2899, 2921 (Dec. 17, 2002), requires sampling procedures; and related not result in safety ratings. management systems practices) are Federal agencies to conduct a PIA for * * * * * new or substantially changed standards that are developed or adopted ■ 3. Revise § 385.4 to read as follows: technology that collects, maintains, or by voluntary consensus standards disseminates information in an bodies. This proposed rule does not use § 385.4 Matter incorporated by reference. identifiable form. No new or technical standards. Therefore, FMCSA (a) Certain material is incorporated by substantially changed technology would did not consider the use of voluntary reference into this part with the collect, maintain, or disseminate consensus standards. approval of the Director of the Federal

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Register under 5 U.S.C. 552(a) and 1 policy is available to the public online vehicle inspection only at a level for CFR part 51. To enforce any edition at https://www.fmcsa.dot.gov/ which the individual is certified. other than that specified in this section, certification. (b) Maintaining certification and FMCSA must publish notification of (2) [Reserved] obtaining recertification. An individual change in the Federal Register and the ■ 5. Revise the subpart C to read as who qualifies to conduct driver or material must be available to the public. follows: vehicle inspections under this section All approved material is available for must meet the requirements for Subpart C—Certification to Conduct Driver maintaining certification or obtaining inspection at the Federal Motor Carrier or Vehicle Inspections, Safety Audits, and Safety Administration, Office of Investigations recertification as specified in the Enforcement and Compliance, 1200 Commercial Vehicle Safety Alliance’s New Jersey Ave. SE, Washington, DC Sec. ‘‘Operational Policy 4: Inspector 385.201–385.205 [Reserved] Training and Certification.’’ 20590, telephone (202) 385–2400, and is 385.207 Qualifications to perform a driver available from the sources listed in or vehicle inspection, safety audit, or § 385.211 Requirements to obtain and paragraphs (b) and (c) of this section. It investigation of a motor carrier. maintain certification to conduct safety is also available for inspection at the 385.209 Requirements to obtain and audits or investigations. National Archives and Records maintain certification to conduct driver (a) Certification. An individual may Administration (NARA). For or vehicle inspections. 385.211 Requirements to obtain and conduct safety audits or investigations information on the availability of this under this subpart only if the individual material at NARA, call (202) 741–6030 maintain certification to conduct safety audits or investigations. meets the requirements of § 385.207(b), or go to http://www.archives.gov/ or meets the requirements specified in federal-register/cfr/ibr-locations.html. Subpart C—Certification to Conduct FMCSA’s ‘‘Certification Policy for (b) Commercial Vehicle Safety Driver or Vehicle Inspections, Safety Employees Who Perform Inspections, Alliance, 6303 Ivy Lane, Suite 310, Audits, and Investigations Investigations, and Safety Audits’’ Greenbelt, MD 20770, telephone (301) (incorporated by reference, see § 385.4). 830–6143, www.cvsa.org. § 385.201–385.205 [Reserved] (b) Maintaining certification and (1) ‘‘North American Standard Out-of- obtaining recertification. An individual Service Criteria and Level VI Inspection § 385.207 Qualifications to perform a who qualifies to conduct safety audits or Procedures and Out-of-Service Criteria driver or vehicle inspection, safety audit, or investigations under this section must for Commercial Highway Vehicles investigation of a motor carrier. maintain certification or obtain Transporting Transuranics and Highway (a) General. Subject to paragraph (b) recertification by successfully Route Controlled Quantities of of this section, an FMCSA employee or completing the requirements specified Radioactive Materials as defined in 49 contractor, or a State or local in FMCSA’s ‘‘Certification Policy for CFR part 173.403,’’ April 1, 2016, government employee or contractor Employees Who Perform Inspections, incorporation by reference approved for funded through the Motor Carrier Safety Investigations, and Safety Audits.’’ § 385.415(b). Assistance Program or authorized to (2) ‘‘Operational Policy 4: Inspector upload data to FMCSA, may qualify to Issued under authority delegated in 49 CFR Training and Certification,’’ as revised perform a driver or vehicle inspection, 1.87: June 26, 2019. September 21, 2017, incorporation by safety audit, or investigation by Raymond P. Martinez, reference approved for § 385.209. The complying with the requirements of this Administrator. policy is available to the public online subpart. [FR Doc. 2019–14224 Filed 7–5–19; 8:45 am] as Attachment A of FMCSA’s (b) Previously qualified personnel. An BILLING CODE 4910–EX–P ‘‘Certification Policy for Employees FMCSA employee or contractor, or a Who Perform Inspections, State or local government employee or Investigations, and Safety Audits’’ contractor funded through the Motor DEPARTMENT OF THE INTERIOR available at https://www.fmcsa.dot.gov/ Carrier Safety Assistance Program or certification. authorized to upload data to FMCSA, Fish and Wildlife Service (c) Federal Motor Carrier Safety who was qualified to perform a driver Administration, Office of Enforcement or vehicle inspection, safety audit, or 50 CFR Part 20 and Compliance, 1200 New Jersey Ave. investigation before [DATE 60 DAYS [Docket No. FWS–HQ–MB–2018–0030; SE, Washington, DC 20590, telephone AFTER PUBLICATION OF FINAL RULE FF09M21200–189–FXMB1231099BPP0] (202) 385–2400. IN Federal Register], may perform a (1) ‘‘Certification Policy for driver or vehicle inspection, safety RIN 1018–BD10 Employees Who Perform Inspections, audit, or investigation if the employee Investigations, and Safety Audits,’’ Migratory Bird Hunting; Proposed or contractor maintains the appropriate Migratory Bird Hunting Regulations on December 29, 2015, as amended October certification under this subpart. 2017 with respect to Attachment A Certain Federal Indian Reservations (Commercial Vehicle Safety Alliance’s § 385.209 Requirements to obtain and and Ceded Lands for the 2019–20 ‘‘Operational Policy 4: Inspector maintain certification to conduct driver or Season vehicle inspections. Training and Certification’’ (revised AGENCY: Fish and Wildlife Service, September 21, 2017)), and as amended (a) Certification. An individual may Interior. March 2019 with respect to Attachment conduct driver or vehicle inspections ACTION: Proposed rule. B (‘‘Certification of Safety Inspectors, under this subpart only if the individual Safety Investigators, New Entrant Safety meets the requirements of § 385.207(b), SUMMARY: The U.S. Fish and Wildlife Auditors, Commercial Enforcement or meets requirements as specified in Service (hereinafter, Service or we) Specialists[,] Safety Investigators Who the Commercial Vehicle Safety proposes special migratory bird hunting Perform Cargo Tank Facility Reviews, Alliance’s ‘‘Operational Policy 4: regulations for certain Tribes on Federal and Other Employees Who Maintain Inspector Training and Certification’’ Indian reservations, off-reservation trust Certification’’), incorporation by (incorporated by reference, see § 385.4). lands, and ceded lands for the 2019–20 reference approved for § 385.211. The The individual may conduct a driver or migratory bird hunting season.

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DATES: You must submit comments on frameworks but on dates different from receive such notification, we will the proposed regulations by August 7, those selected by the surrounding initiate consultation. 2019. State(s); Our guidelines provide for the (2) On-reservation hunting by tribal continued harvest of waterfowl and ADDRESSES: Comments: You may submit comments on the proposals by one of members only, outside of the usual other migratory game birds by tribal Federal frameworks for season dates and members on reservations where such the following methods: • Federal eRulemaking Portal: http:// length, and for daily bag and possession harvest has been a customary practice. www.regulations.gov. Follow the limits; and We do not oppose this harvest, provided (3) Off-reservation hunting by tribal instructions for submitting comments it does not take place during the closed members on ceded lands, outside of on Docket No. FWS–HQ–MB–2018– season defined by the Treaty, and does usual framework dates and season 0030. not adversely affect the status of the • U.S. mail or hand delivery: Public length, with some added flexibility in migratory bird resource. Before daily bag and possession limits. Comments Processing, Attn: FWS–HQ– developing the guidelines, we reviewed In all cases, the regulations MB–2018–0030; Division of Policy, available information on the current established under the guidelines must Performance, and Management status of migratory bird populations, be consistent with the March 10 to reviewed the current status of migratory Programs; U.S. Fish and Wildlife September 1 closed season mandated by Service; MS: BPHC; 5275 Leesburg Pike; bird hunting on Federal Indian the 1916 Convention between the reservations, and evaluated the potential Falls Church, VA 22041–3803. United States and Great Britain (for We will post all comments on http:// impact of such guidelines on migratory Canada) for the Protection of Migratory www.regulations.gov. This generally birds. We concluded that the impact of Birds (Treaty). The guidelines apply to means that we will post any personal migratory bird harvest by tribal those Tribes having recognized reserved members hunting on their reservations information you provide us (see Public hunting rights on Federal Indian Comments, below, for more is minimal. reservations (including off-reservation One area of interest in Indian information). trust lands) and on ceded lands. They migratory bird hunting regulations FOR FURTHER INFORMATION CONTACT: Ron also apply to establishing migratory bird relates to hunting seasons for nontribal W. Kokel, U.S. Fish and Wildlife hunting regulations for nontribal hunters on dates that are within Federal Service, Department of the Interior, MS: hunters on all lands within the exterior frameworks, but which are different MB, 5275 Leesburg Pike, Falls Church, boundaries of reservations where Tribes from those established by the State(s) VA 22041–3803; (703) 358–1967. have full wildlife management authority where the reservation is located. A large SUPPLEMENTARY INFORMATION: over such hunting or where the Tribes influx of nontribal hunters onto a and affected States otherwise have reservation at a time when the season is New Process for the Annual Migratory reached agreement over hunting by closed in the surrounding State(s) could Game Bird Hunting Regulations nontribal hunters on lands owned by result in adverse population impacts on As part of the Department of the non-Indians within the reservation. one or more migratory bird species. The Interior’s retrospective regulatory Tribes usually have the authority to guidelines make this unlikely, and we review, 3 years ago we developed a regulate migratory bird hunting by may modify regulations or establish schedule for migratory game bird nonmembers on Indian-owned experimental special hunts, after hunting regulations that is more reservation lands, subject to Service evaluation of information obtained by efficient and provides hunting season approval. The question of jurisdiction is the Tribes. dates much earlier than was possible more complex on reservations that We conclude the guidelines provide under the old process. Under the new include lands owned by non-Indians, appropriate opportunity to process, we develop proposed hunting especially when the surrounding States accommodate the reserved hunting season frameworks for a given year in have established or intend to establish rights and management authority of the fall of the prior year. We then regulations governing hunting by non- Indian Tribes while ensuring that the finalize those frameworks a few months Indians on these lands. In such cases, migratory bird resource receives later, thereby enabling the State we encourage the Tribes and States to necessary protection. The conservation agencies to select and publish their reach agreement on regulations that of this important international resource season dates in early summer. We would apply throughout the is paramount. Further, the guidelines provided a detailed overview of the new reservations. When appropriate, we will should not be viewed as inflexible. In process in the August 3, 2017, Federal consult with a Tribe and State with the this regard, we note that they have been Register (82 FR 36308). aim of facilitating an accord. We also employed successfully since 1985. We will consult jointly with tribal and State conclude they have been tested Special Migratory Bird Hunting officials in the affected States where adequately, and, therefore, we made Regulations for Indian Tribes Tribes wish to establish special hunting them final beginning with the 1988–89 We developed the guidelines for regulations for tribal members on ceded hunting season (53 FR 31612, August establishing special migratory bird lands. Because of past questions 18, 1988). We should stress here, hunting regulations for Indian Tribes in regarding interpretation of what events however, that use of the guidelines is response to tribal requests for trigger the consultation process, as well not mandatory, and no action is recognition of their reserved hunting as who initiates it, we provide the required if a Tribe wishes to observe the rights and, for some Tribes, recognition following clarification. hunting regulations established by the of their authority to regulate hunting by We routinely provide copies of State(s) in which the reservation is both tribal and nontribal hunters on Federal Register publications pertaining located. their reservations. The guidelines to migratory bird management to all include possibilities for: State Directors, Tribes, and other Regulations Schedule for 2019 (1) On-reservation hunting by both interested parties. It is the responsibility On June 14, 2018, we published a tribal and nontribal hunters, with of the States, Tribes, and others to notify proposal to amend title 50 of the Code hunting by nontribal hunters on some us of any concern regarding any of Federal Regulations (CFR) at part 20 reservations to take place within Federal feature(s) of any regulations. When we (83 FR 27836). The proposal provided a

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background and overview of the and Eastern Populations, 2018 (August March 9, 2020. Daily bag and possession migratory bird hunting regulations 2018); and Waterfowl Population Status, limits were not proposed for tribal process, and addressed the 2018 (August 2018). members. establishment of seasons, limits, and Hunting Season Proposals From Indian The requested season dates and bag other regulations for hunting migratory Tribes and Organizations limits are similar to past regulations. game birds under §§ 20.101 through Harvest levels are not expected to 20.107, 20.109, and 20.110 of subpart K. For the 2019–20 hunting season, we change significantly. Standardized This document is the third in a series of received requests from 26 Tribes and check station data from the 1993–94 and proposed, supplemental, and final rules Indian organizations. In this proposed 1994–95 hunting seasons indicated no for migratory game bird hunting rule, we respond to these 26 requests significant changes in harvest levels and regulations. We will publish additional and also evaluate anticipated requests that the large majority of the harvest is supplemental proposals for public for 5 Tribes from whom we usually hear by nontribal hunters. but from whom we have not yet comment in the Federal Register as We propose to approve the Tribes’ received proposals. We actively solicit population, habitat, harvest, and other request for special migratory bird regulatory proposals from other tribal information become available. Major regulations for the 2019–20 hunting groups that are interested in working steps in the 2019–20 regulatory cycle season. relating to open public meetings and cooperatively for the benefit of Federal Register notifications were waterfowl and other migratory game (b) Fond du Lac Band of Lake Superior illustrated in the diagram at the end of birds. We encourage Tribes to work with Chippewa Indians, Cloquet, Minnesota the June 14, 2018, proposed rule (83 FR us to develop agreements for (Tribal Members Only) management of migratory bird resources 27836). Since 1996, the Service and the Fond On September 21, 2018, we published on tribal lands. du Lac Band of Lake Superior Chippewa in the Federal Register (83 FR 47868) a The proposed frameworks for flyway Indians have cooperated to establish second document providing regulations were published in the special migratory bird hunting supplemental proposals for migratory Federal Register on April 19, 2019 (84 regulations for tribal members. The bird hunting regulations. The September FR 16152). As previously discussed, no Fond du Lac’s proposal covers land set 21 supplement also provided detailed action is required by Tribes wishing to apart for the band under the Treaties of information on the 2019–20 regulatory observe migratory bird hunting 1837 and 1854 in northeastern and east- schedule and re-announced the Service regulations established by the State(s) Regulations Committee and Flyway where they are located. The proposed central Minnesota and the Band’s Council meetings. regulations for the 31 Tribes that meet Reservation near Duluth. On October 16–17, 2018, we held the established criteria or have recently The band’s proposal for 2019–20 is open meetings with the Flyway Council proposed seasons are shown below. essentially the same as that approved Consultants, at which the participants last year. The proposed 2019–20 (a) Confederated Salish and Kootenai reviewed information on the current waterfowl hunting season regulations Tribes, Flathead Indian Reservation, status of migratory game birds and for Fond du Lac are as follows: Pablo, Montana (Tribal and Nontribal developed recommendations for the Hunters) Ducks 2019–20 regulations for these species. On April 17, 2019, we published in For the past several years, the A. 1854 and 1837 Ceded Territories: the Federal Register (84 FR 16152) the Confederated Salish and Kootenai Season Dates: Begin September 1 and proposed frameworks for the 2019–20 Tribes and the State of Montana have end November 30, 2019. season migratory bird hunting entered into cooperative agreements for Daily Bag Limit: 18 ducks, including regulations. the regulation of hunting on the no more than 12 mallards (only 3 of Flathead Indian Reservation. The State which may be hens), 9 black ducks, 9 Population Status and Harvest and the Tribes are currently operating scaup, 9 wood ducks, 9 redheads, 9 Each year we publish various species under a cooperative agreement signed in pintails, and 9 canvasbacks. status reports that provide detailed 1990, which addresses fishing and B. Reservation: information on the status and harvest of hunting management and regulation Season Dates: Begin September 1 and migratory game birds, including issues of mutual concern. This end November 30, 2019. information on the methodologies and agreement enables all hunters to utilize Daily Bag Limit: 12 ducks, including results. These reports are available at waterfowl hunting opportunities on the no more than 8 mallards (only 2 of the address indicated under FOR reservation. which may be hens), 6 black ducks, 6 FURTHER INFORMATION CONTACT or from As in the past, tribal regulations for scaup, 6 redheads, 6 pintails, 6 wood our website at https://www.fws.gov/ nontribal hunters would be at least as ducks, and 6 canvasbacks. birds/surveys-and-data/reports-and- restrictive as those established for the publications/population-status.php. Pacific Flyway portion of Montana. Mergansers We used the following reports: Goose, duck, and coot season dates A. 1854 and 1837 Ceded Territories: Adaptive Harvest Management, 2019 would also be at least as restrictive as Hunting Season (September 2018); those established for the Pacific Flyway Season Dates: Begin September 1 and American Woodcock Population Status, portion of Montana. Shooting hours for end November 30, 2019. 2018 (August 2018); Band-tailed Pigeon waterfowl hunting on the Flathead Daily Bag Limit: 15 mergansers, Population Status, 2018 (August 2018); Reservation are sunrise to sunset. Steel including no more than 6 hooded Migratory Bird Hunting Activity and shot or other federally approved mergansers. Harvest During the 2016–17 and 2017– nontoxic shots are the only legal B. Reservation: 18 Hunting Seasons (August 2018); shotgun loads on the reservation for Season Dates: Begin September 1 and Mourning Dove Population Status, 2018 waterfowl or other game birds. end November 30, 2019. (August 2018); Status and Harvests of For tribal members, the Tribe Daily Bag Limit: 10 mergansers, Sandhill Cranes, Mid-continent, Rocky proposes outside frameworks for ducks including no more than 4 hooded Mountain, Lower Colorado River Valley and geese of September 1, 2019, through mergansers.

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Canada Geese: All Areas 4. Band members in each zone will not exceed five birds. For mourning Season Dates: Begin September 1 and comply with State regulations providing doves, snipe, and rails, the Tribe end November 30, 2019. for closed and restricted waterfowl proposes a September 1 through Daily Bag Limit: 20 geese. hunting areas. November 14, 2019, season. The daily 5. There are no possession limits for bag limit would be 15 mourning dove, Sandhill Cranes: 1854 and 1837 Ceded migratory birds. For purposes of 10 snipe, and 10 rail. Territories Only enforcing bag limits, all migratory birds For sandhill crane, the Tribe proposes Season Dates: Begin September 1 and in the possession or custody of band a September 1 through November 14, end November 30, 2019. members on ceded lands will be 2019, season. The daily bag limit would Daily Bag Limit: Two sandhill cranes. considered to have been taken on those be 2 birds and a season limit of 10 birds. A crane carcass tag is required prior to lands unless tagged by a tribal or State For snipe and rails, the Tribe hunting. conservation warden as having been proposes a September 1 through taken on-reservation. All migratory November 14, 2019, season. The daily Tundra and Trumpeter Swans: birds that fall on reservation lands will bag limit would be 10 birds per species. Reservation Only not count as part of any off-reservation Shooting hours would be from one- Season Dates: Begin September 1 and bag or possession limit. half hour before sunrise to one-half hour end November 30, 2019. The band anticipates harvest will be after sunset. All other Federal Daily Bag Limit: One swan. A swan fewer than 500 ducks and geese, and regulations contained in 50 CFR part 20 carcass tag is required prior to hunting. fewer than 10 sandhill cranes. would apply. The Tribe proposes to We propose to approve the request for monitor harvest closely through game Coots and Common Moorhens (Common special migratory bird hunting bag checks, patrols, and mail surveys. Gallinules): All Areas regulations for the Fond du Lac Band of Harvest surveys from the 2013–14 Season Dates: Begin September 1 and Lake Superior Chippewa Indians. hunting season indicated that approximately 30 tribal hunters end November 30, 2019. (c) Grand Traverse Band of Ottawa and Daily Bag Limit: 20 coots and harvested an estimated 100 ducks and Chippewa Indians, Suttons Bay, 45 Canada geese. common moorhens, singly or in the Michigan (Tribal Members Only) aggregate. We propose to approve the Grand In the 1995–96 migratory bird Traverse Band of Ottawa and Chippewa Sora and Virginia Rails: All Areas seasons, the Grand Traverse Band of Indians 2019–20 special migratory bird Season Dates: Begin September 1 and Ottawa and Chippewa Indians and the hunting proposal. Service first cooperated to establish end November 30, 2019. (d) Great Lakes Indian Fish and Wildlife special regulations for waterfowl. The Daily Bag Limit: 25 sora and Virginia Commission, Odanah, Wisconsin (Tribal rails, singly or in the aggregate. Grand Traverse Band is a self-governing, Members Only) federally recognized Tribe located on Common Snipe: All Areas the west arm of Grand Traverse Bay in Since 1985, various bands of the Lake Season Dates: Begin September 1 and Leelanau County, Michigan. The Grand Superior Tribe of Chippewa Indians end November 30, 2019. Traverse Band is a signatory Tribe of the have exercised judicially recognized, Daily Bag Limit: Eight common snipe. Treaty of 1836. We have approved off-reservation hunting rights for special regulations for tribal members of migratory birds in Wisconsin. The Woodcock: All Areas the 1836 treaty’s signatory Tribes on specific regulations were established by Season Dates: Begin September 1 and ceded lands in Michigan since the the Service in consultation with the end November 30, 2019. 1986–87 hunting season. Wisconsin Department of Natural Daily Bag Limit: Three woodcock. For the 2019–20 season, the Tribe Resources and the Great Lakes Indian requests that the tribal member duck Fish and Wildlife Commission Mourning Dove: All Areas season run from September 1, 2019, (GLIFWC), an intertribal agency Season Dates: Begin September 1 and through January 20, 2020. A daily bag exercising delegated natural resource end November 30, 2019. limit of 35 would include no more than management and regulatory authority Daily Bag Limit: 30 mourning doves. 8 pintail, 4 canvasback, 5 hooded from its member Tribes in portions of The following general conditions merganser, 8 black ducks, 8 wood Wisconsin, Michigan, and Minnesota. apply: ducks, 8 redheads, and 20 mallards Beginning in 1986, a Tribal season on 1. While hunting waterfowl, a tribal (only 10 of which may be hens). ceded lands in the western portion of member must carry on his/her person a For Canada and snow geese, the Tribe the Michigan Upper Peninsula was valid Ceded Territory License. proposes a September 1, 2019, through developed in coordination with the 2. Shooting hours for migratory birds February 15, 2020, season. For white- Michigan Department of Natural are one-half hour before sunrise to one- fronted geese and brant, the Tribe Resources. We have approved half hour after sunset. proposes a September 20 through regulations for Tribal members in both 3. Except as otherwise noted, tribal December 30, 2019, season. The daily Michigan and Wisconsin since the members will be required to comply bag limit for Canada and snow geese 1986–87 hunting season. In 1987, with tribal codes that will be no less would be 15, and the daily bag limit for GLIFWC requested, and we approved, restrictive than the provisions of white-fronted geese including brant regulations to permit Tribal members to Chapter 10 of the Model Off-Reservation would be 5 birds. We further note that, hunt on ceded lands in Minnesota, as Code. Except as modified by the Service based on available data (of major goose well as in Michigan and Wisconsin. The rules adopted in response to this migration routes), it is unlikely that any States of Michigan and Wisconsin proposal, these amended regulations Canada geese from the Southern James originally concurred with the parallel Federal requirements in 50 CFR Bay Population will be harvested by the regulations, although both Wisconsin part 20 as to hunting methods, Tribe. and Michigan have raised various transportation, sale, exportation, and For woodcock, the Tribe proposes a concerns over the years. Minnesota did other conditions generally applicable to September 1 through November 14, not concur with the original regulations, migratory bird hunting. 2019, season. The daily bag limit will stressing that the State would not

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recognize Chippewa Indian hunting Consequently, in view of the above, we reservation hunting rights for migratory rights in Minnesota’s treaty area until a have approved regulations since the birds. court with jurisdiction over the State 1987–88 hunting season on ceded lands For 2019, GLIFWC proposes off- acknowledges and defines the extent of in all three States. In fact, this reservation special migratory bird these rights. In 1999, the U.S. Supreme recognition of the principle of treaty hunting regulations on behalf of the Court upheld the existence of the tribes’ reserved rights for band members to member Tribes of the Voigt Intertribal treaty reserved rights in Minnesota v. hunt and fish was pivotal in our Task Force of GLIFWC (for the 1837 and Mille Lacs Band, 199 S. Ct. 1187 (1999). decision to approve a 1991–92 season 1842 Treaty areas in Wisconsin and We acknowledge all of the States’ for the 1836 ceded area in Michigan. Michigan), the Mille Lacs Band of concerns, but point out that the U.S. Since then, in the 2007 Consent Decree, Ojibwe and the six Wisconsin Bands Government has recognized the Indian the 1836 Treaty Tribes and the Michigan (for the 1837 Treaty area in Minnesota), treaty reserved rights, and that Department of Natural Resources and and the Bay Mills Indian Community acceptable hunting regulations have (for the 1836 Treaty area in Michigan). Environment established court- been successfully implemented in Member Tribes of the Task Force are as approved regulations pertaining to off- Minnesota, Michigan, and Wisconsin. follows:

Wisconsin Minnesota Michigan

Bad River Band of the Lake Superior Tribe of Chippewa Mille Lacs Band of Chippewa Indians ...... Lac Vieux Desert Band of Chippewa Indi- Indians. ans. Lac Courte Oreilles Band of Lake Superior Chippewa In- Fond du Lac Band of Lake Superior Keweenaw Bay Indian Community. dians. Chippewa Indians. Lac du Flambeau Band of Lake Superior Chippewa Indi- ans. Red Cliff Band of Lake Superior Chippewa Indians. St. Croix Chippewa Indians of Wisconsin. Sokaogon Chippewa Community (Mole Lake Band).

This year, GLIFWC proposes to Recent GLIFWC harvest surveys Daily Bag Limit: 50 ducks in the 1837 continue certain experimental (1996–98, 2001, 2004, 2007–08, 2011, and 1842 Treaty Area; 30 ducks in the regulatory changes approved during the 2012, and 2015) indicate that tribal off- 1836 Treaty Area. 2017–18 season but first implemented reservation waterfowl harvest has Mergansers last year (83 FR 5037, February 5, 2018). averaged fewer than 1,100 ducks and First, in the 1837 and 1842 Treaty 250 geese annually. In the latest survey Season Dates: Begin September 1 and Areas, GLIFWC allows up to 50 Tribal year for which we have specific results end December 31, 2019. hunters to use electronic calls for any (2015), an estimated 297 hunters hunted Daily Bag Limit: 10 mergansers. open season under a limited and a total of 2,190 days and harvested 2,727 Geese experimental design under a special ducks (1.2 ducks per day) and 639 Tribal permit. In addition to obtaining a geese. The greatest number of ducks Season Dates: Begin September 1 and special permit, the Tribal hunter is reported harvested in a single day was end December 31, 2019. In addition, any required to complete and submit a hunt 10, while the highest number of geese portion of the ceded territory that is diary for each hunt where electronic reported taken on a single outing was 6. open to State-licensed hunters for goose calls were used. Second, GLIFWC Mallards, wood ducks, and blue-winged hunting outside of these dates will also allows the take of migratory birds teal composed about 72 percent of the be open concurrently for tribal members. (primarily waterfowl) with the use of duck harvest. Two sandhill cranes were Daily Bag Limit: 20 geese in aggregate. hand-held nets, hand-held snares, and/ reported harvested in each of the first or capture of birds by hand in the 1837 three Tribal sandhill crane seasons, with Other Migratory Birds three reported harvested in 2015. Two and 1842 Treaty Areas. This use of nets, A. Coots and Common Moorhens swans were harvested in 2017, and two snares, or hand-capture includes the (Common Gallinules): swans were registered in 2018. About 81 take of birds at night. Both the use of Season Dates: Begin September 1 and percent of the estimated hunting days electronic calls and the use of nets, end December 31, 2019. took place in Wisconsin, with the snares, or hand-capture are considered Daily Bag Limit: 20 coots and remainder occurring in Michigan. As in 3-year experimental seasons. We common moorhens (common past years, most hunting took place in propose to approve the continuation of gallinules), singly or in the aggregate. or near counties with reservations. all these experimental proposals again B. Sora and Virginia Rails: Overall, analysis of hunter survey data this year. For more specific discussion Season Dates: Begin September 1 and over 1996–2015 indicates a general on these regulatory changes, we refer end December 31, 2019. downward, or flat, trend in both harvest the reader to the August 27, 2017, and Daily Bag and Possession Limits: 20, and hunter participation. February 5, 2018, rules (82 FR 39716 singly, or in the aggregate, 25. and 83 FR 5037). The proposed 2019–20 waterfowl C. Common Snipe: Under GLIFWC’s proposed 2019–20 hunting season regulations apply to all Season Dates: Begin September 1 and regulations, GLIFWC expects total ceded treaty areas (except where noted) for end December 31, 2019. territory harvest to be approximately GLIFWC as follows: Daily Bag Limit: 16 common snipe. 2,000 to 3,000 ducks, 400 to 600 geese, Ducks D. Woodcock: 50 sandhill cranes, and 20 swans, which Season Dates: Begin September 4 and is roughly similar to anticipated levels Season Dates: Begin September 1 and end December 31, 2019. in the previous year. end December 31, 2019. Daily Bag Limit: 10 woodcock.

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E. Mourning Dove: 1837 and 1842 taken on reservation lands. All will be required to complete a hunt Ceded Territories only. migratory birds that fall on reservation diary for each hunt where these Season Dates: Begin September 1 and lands will not count as part of any off- methods are used; and they will be end November 29, 2019. reservation bag or possession limit. required to submit the hunt diary to the Daily Bag Limit: 15 mourning doves. 4. The baiting restrictions included in Commission within 2 weeks of the end F. Sandhill Cranes: the respective section 10.05(2)(h) of the of the season in order to be eligible to Season Dates: Begin September 1 and model ceded territory conservation obtain a permit to net migratory birds end December 31, 2019. codes will be amended to include for the following year. Required Daily Bag Limit: 5 cranes and no language which parallels that in place information will include the date, time, seasonal bag limit in the 1837 and 1842 for nontribal members as published at and location of the hunt; number of Treaty areas; 3 crane and no seasonal 64 FR 29799, June 3, 1999. bag limit in the 1836 Treaty area. 5. There are no shell limit restrictions. hunters; the number of each species G. Swans: 1837 and 1842 Ceded 6. Hunting hours are from 30 minutes harvested per hunting event; and other Territories only. before sunrise to 30 minutes after information deemed appropriate. Diary Season Dates: Begin September 1 and sunset, except that, within the 1837 and results will be summarized and end December 31, 2019. 1842 Ceded Territories, hunters may use documented in a Commission report, Daily Bag Limit: 5 swans. All non-mechanical nets or snares that are which will be submitted to the Service. harvested swans must be registered by operated by hand to take those birds Barring unforeseen results, this presenting the fully-feathered carcass to subject to an open hunting season at any experimental application would be a tribal registration station or GLIFWC time (see #8 below for further replicated for 3 years (through the 2020– warden. If the total number of trumpeter information). Hunters shall also be 21 season), after which a full evaluation swans harvested reaches 10, the swan permitted to capture, without the aid of would be completed. season will be closed by emergency other devices (i.e., by hand) and We propose to approve the above tribal rule. immediately kill birds subject to an open season, regardless of the time of GLIFWC regulations for the 2019–20 General Conditions day. hunting season. A. All tribal members will be required 7. An experimental application of (e) Jicarilla Apache Tribe, Jicarilla to obtain a valid tribal waterfowl electronic calls will be implemented in Indian Reservation, Dulce, New Mexico hunting permit. the 1837 and 1842 Ceded Territories. Up (Tribal Members and Nontribal Hunters) B. Except as otherwise noted, tribal to 50 tribal hunters will be allowed to members will be required to comply use electronic calls. Individuals using The Jicarilla Apache Tribe has had with tribal codes that will be no less these devices will be required to obtain special migratory bird hunting restrictive than the model ceded a special permit; they will be required regulations for tribal members and territory conservation codes approved to complete a hunt diary for each hunt nonmembers since the 1986–87 hunting by Federal courts in the Lac Courte where electronic calls are used; and season. The Tribe owns all lands on the Oreilles v. State of Wisconsin (Voigt) they will be required to submit the hunt reservation and has recognized full diary to the Commission within 2 weeks and Mille Lacs Band v. State of wildlife management authority. In Minnesota cases. Chapter 10 in each of of the end of the season in order to be general, the proposed seasons would be these model codes regulates ceded eligible to obtain a permit for the more conservative than allowed by the territory migratory bird hunting. Both following year. Required information Federal frameworks of last season and versions of Chapter 10 parallel Federal will include the date, time, and location requirements as to hunting methods, of the hunt; number of hunters; the by States in the Pacific Flyway. transportation, sale, exportation, and number of each species harvested per The Tribe proposes a 2019–20 other conditions generally applicable to hunting event; if other hunters were in waterfowl and Canada goose season migratory bird hunting. They also the area, any interactions with other beginning October 6, 2019, and a closing automatically incorporate by reference hunters; and other information deemed date of November 30, 2019. Daily bag the Federal migratory bird regulations appropriate. Diary results will be and possession limits for waterfowl adopted in response to this proposal. summarized and documented in a would be the same as Pacific Flyway C. Particular regulations of note Commission report, which will be States. The Tribe proposes a daily bag include: submitted to the Service. Barring limit for Canada geese of two. Other 1. Nontoxic shot will be required for unforeseen results, this experimental regulations specific to the Pacific all waterfowl hunting by tribal application would be replicated for 3 Flyway guidelines for New Mexico members. years (through the 2020–21 season), would be in effect. 2. Tribal members in each zone will after which a full evaluation would be comply with tribal regulations completed. During the Jicarilla Game and Fish providing for closed and restricted 8. Within the 1837 and 1842 Ceded Department’s 2017–18 season, estimated waterfowl hunting areas. These Territories, tribal members will be duck harvest was 82. The species regulations generally incorporate the allowed to use non-mechanical, hand- composition included mainly mallards, same restrictions contained in parallel operated nets (i.e., throw/cast nets or gadwall, and bufflehead. The estimated State regulations. hand-held nets typically used to land harvest of geese was six birds. 3. There are no possession limits, fish) and hand-operated snares, and may The proposed regulations are with the exception of 2 swans (in the chase and capture migratory birds essentially the same as were established aggregate) and 25 rails (in the aggregate). without the aid of hunting devices (i.e., last year. The Tribe anticipates the For purposes of enforcing bag limits, all by hand). At this time, non-attended maximum 2019–20 waterfowl harvest migratory birds in the possession and nets or snares shall not be authorized would be around 300 ducks and 30 custody of tribal members on ceded under this regulation. Tribal members lands will be considered to have been using nets or snares to take migratory geese. taken on those lands unless tagged by a birds, or taking birds by hand, will be We propose to approve the Tribe’s tribal or State conservation warden as required to obtain a special permit; they requested 2019–20 hunting seasons.

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(f) Kalispel Tribe, Kalispel Reservation, All other State and Federal We propose to approve those 2019–20 Usk, Washington (Tribal Members and regulations contained in 50 CFR part 20, special migratory bird hunting Nontribal Hunters) such as use of nontoxic shot and regulations. possession of a signed migratory bird The Kalispel Reservation was (h) Leech Lake Band of Ojibwe, Cass hunting and conservation stamp, would established by Executive Order in 1914 Lake, Minnesota (Tribal Members Only) and currently comprises approximately be required. For tribal members on Kalispel-ceded The Leech Lake Band of Ojibwe is a 4,600 acres. The Tribe owns all federally recognized Tribe located in Reservation land and has full lands, the Kalispel Tribe proposes season dates for ducks of October 1, Cass Lake, Minnesota. The reservation management authority. The Kalispel employs conservation officers to enforce Tribe has a fully developed wildlife 2019, through January 31, 2020, and for geese of September 10, 2019, through conservation regulations. The Service program with hunting and fishing and the Tribe have cooperatively codes. The Tribe enjoys excellent January 31, 2020. Daily bag and possession limits would parallel those established migratory bird hunting wildlife management relations with the regulations since 2000. State. The Tribe and the State have an in the Federal regulations contained in 50 CFR part 20. For the 2019–20 season, the Tribe operational memorandum of requests a duck season starting on understanding with emphasis on The Tribe reports that there was no tribal harvest. Under the proposal, the September 14 and ending December 31, fisheries but also for wildlife. 2019, and a goose season to run from The nontribal member seasons Tribe expects harvest to be fewer than 200 birds for the season with fewer than September 14 through December 31, described below pertain to a 176-acre 2019. Daily bag limits for ducks would waterfowl management unit and 800 100 geese. Tribal members would be required to possess a signed Federal be 10, including no more than 5 pintail, acres of reservation land with a guide 5 canvasback, and 5 black ducks. Daily for waterfowl hunting. The Tribe is migratory bird stamp and a tribal ceded lands permit. bag limits for geese would be 10. utilizing this opportunity to rehabilitate Possession limits would be twice the an area that needs protection because of We propose to approve the regulations requested by the Kalispel daily bag limit. Shooting hours are one- past land use practices, as well as to half hour before sunrise to one-half hour provide additional waterfowl hunting in Tribe, since these dates conform to Federal flyway frameworks for the after sunset. the area. Beginning in 1996, the The annual harvest by tribal members Pacific Flyway. requested regulations also included a on the Leech Lake Reservation is proposal for Kalispel-member-only (g) Klamath Tribe, Chiloquin, Oregon estimated at 250 to 500 birds. migratory bird hunting on Kalispel- (Tribal Members Only) We propose to approve the Leech ceded lands within Washington, Lake Band of Ojibwe’s requested 2019– The Klamath Tribe currently has no Montana, and Idaho. 20 special migratory bird hunting reservation, per se. However, the The Kalispel Tribe proposes tribal and season. nontribal member waterfowl seasons. Klamath Tribe has reserved hunting, The Tribe requests that both duck and fishing, and gathering rights within its (i) Little River Band of Ottawa Indians, goose seasons open at the earliest former reservation boundary. This area Manistee, Michigan (Tribal Members possible date and close on the latest of former reservation, granted to the Only) date under Federal frameworks. Klamaths by the Treaty of 1864, is over The Little River Band of Ottawa For nontribal hunters on Tribally 1 million acres. Tribal natural resource Indians (LRBOI) is a self-governing, managed lands, the Tribe requests the management authority is derived from federally recognized Tribe located in seasons open at the earliest possible the Treaty of 1864, and carried out Manistee, Michigan, and a signatory date and remain open, for the maximum cooperatively under the judicially Tribe of the Treaty of 1836. We have amount of open days. Specifically, the enforced Consent Decree of 1981. The approved special regulations for tribal Tribe requests a season for ducks run parties to this Consent Decree are the members of the 1836 treaty’s signatory September 21–22 and September 28–29, Federal Government, the State of Tribes on ceded lands in Michigan since 2019, and from October 1, 2019, to Oregon, and the Klamath Tribe. The the 1986–87 hunting season. Ceded January 8, 2020. In that period, Klamath Indian Game Commission sets lands are located in Lake, Mason, nontribal hunters would be allowed to the seasons. The tribal biological staff Manistee, and Wexford Counties. The hunt approximately 107 days. Hunters and tribal regulatory enforcement Band proposes regulations to govern the should obtain further information on officers monitor tribal harvest by hunting of migratory birds by Tribal specific hunt days from the Kalispel frequent bag checks and hunter members within the 1836 Ceded Tribe. interviews. Territory as well as on the Band’s For nontribal hunters on Tribally For the 2019–20 seasons, the Tribe Reservation. managed lands, the Tribe also requests requests proposed season dates of LRBOI proposes a duck and a season for geese run September 21–22 October 5, 2019, through January 31, merganser season from September 1, and September 28–29, 2019, and from 2020. Daily bag limits would be 9 for 2019, through January 26, 2020. A daily October 1, 2019, to January 8, 2020. ducks, 9 for geese, and 9 for coot, with bag limit of 12 ducks would include no Total number of days should not exceed possession limits twice the daily bag more than 2 pintail, 2 canvasback, 3 107. Nontribal hunters should obtain limit. Shooting hours would be one-half black ducks, 3 wood ducks, 3 redheads, further information on specific hunt hour before sunrise to one-half hour 6 mallards (only 2 of which may be a days from the Tribe. Daily bag and after sunset. Steel shot is required. hen), 1 bufflehead, and 1 hooded possession limits would be the same as Based on the number of birds merganser. Possession limits would be those for the State of Washington. produced in the Klamath Basin, this twice the daily bag limit. The Tribe reports past nontribal year’s harvest would be similar to last For coots and gallinules, the Tribe harvest of 1.5 ducks per day. Under the year’s. Information on tribal harvest proposes a September 14, 2019, through proposal, the Tribe expects harvest to be suggests that more than 70 percent of January 26, 2020, season. Daily bag similar to last year, that is, fewer than the annual goose harvest is local birds limits would be five coot and five 100 geese and 200 ducks. produced in the Klamath Basin. gallinule.

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For white-fronted geese, snow geese, the hunting of migratory birds by tribal (k) Lower Brule Sioux Tribe, Lower Brule and brant, the Tribe proposes a members on the LTBB reservation and Reservation, Lower Brule, South Dakota September 7 through December 9, 2019, within the 1836 Treaty Ceded Territory. (Tribal Members and NonTribal season. Daily bag limits would be five The tribal member duck and merganser Hunters) geese. season would run from September 1, The Lower Brule Sioux Tribe first For Canada geese only, the Tribe 2019, through January 31, 2020. A daily established tribal migratory bird hunting proposes a September 1, 2019, through bag limit of 20 ducks and 10 mergansers regulations for the Lower Brule February 3, 2020, season with a daily would include no more than 5 hen Reservation in 1994. The Lower Brule bag limit of five. The possession limit mallards, 5 pintail, 5 canvasback, 5 Reservation is about 214,000 acres in would be twice the daily bag limit. scaup, 5 hooded merganser, 5 black size and is located on and adjacent to For snipe, woodcock, rails, and ducks, 5 wood ducks, and 5 redheads. the Missouri River, south of Pierre. Land mourning doves, the Tribe proposes a For Canada geese, the LTBB proposes ownership on the reservation is mixed, September 1 to November 11, 2019, a September 1, 2019, through February and until recently, the Lower Brule season. The daily bag limit would be 10 8, 2020, season. The daily bag limit for Tribe had full management authority common snipe, 5 woodcock, 10 rails, Canada geese would be 20 birds. We over fish and wildlife via a and 10 mourning doves. Possession further note that, based on available memorandum of agreement (MOA) with limits for all species would be twice the data (of major goose migration routes), the State of South Dakota. The MOA daily bag limit. it is unlikely that any Canada geese from provided the Tribe jurisdiction over fish The Tribe monitors harvest through the Southern James Bay Population and wildlife on reservation lands, mail surveys. General conditions are as would be harvested by the LTBB. including deeded and U.S. Army Corps follows: Possession limits are twice the daily bag A. All tribal members will be required of Engineers-taken lands. For the 2019– limit. 20 season, the two parties have come to to obtain a valid tribal resource card and For woodcock, the LTBB proposes a 2019–20 hunting license. an agreement that provides the public a September 1 to December 1, 2019, clear understanding of the Lower Brule B. Except as modified by the Service season. The daily bag limit will not rules adopted in response to this Sioux Wildlife Department license exceed 10 birds. For snipe, the LTBB requirements and hunting season proposal, these amended regulations proposes a September 1 to December 31, parallel all Federal regulations regulations. The Lower Brule 2019, season. The daily bag limit will Reservation waterfowl season is open to contained in 50 CFR part 20. Shooting not exceed 16 birds. For mourning hours will be from one-half hour before tribal and nontribal hunters. doves, the LTBB proposes a September For the 2019–20 migratory bird sunrise to sunset. 1 to November 14, 2019, season. The C. Particular regulations of note hunting season, the Lower Brule Sioux daily bag limit will not exceed 15 birds. Tribe proposes a nontribal member include: For Virginia and sora rails, the LTBB (1) Nontoxic shot will be required for duck, merganser, and coot season length proposes a September 1 to December 31, all waterfowl hunting by tribal of 97 days, or the maximum number of 2019, season. The daily bag limit will members. days allowed by Federal frameworks in (2) Tribal members in each zone will not exceed 20 birds per species. For the High Plains Management Unit for comply with tribal regulations coots and gallinules, the LTBB proposes this season. The Tribe proposes a duck providing for closed and restricted a September 15 to December 31, 2019, season from October 5, 2019, through waterfowl hunting areas. These season. The daily bag limit will not January 9, 2020. The daily bag limit regulations generally incorporate the exceed 20 birds per species. The would be six birds or the maximum same restrictions contained in parallel possession limit will not exceed 2 days’ number that Federal regulations allow, State regulations. bag limit for all birds. including no more than two hen mallard D. Tribal members hunting in The LTBB also proposes a sandhill and five mallards total, two pintail, two Michigan will comply with tribal codes crane season to begin September 1 and redhead, two canvasback, three wood that contain provisions parallel to end December 1, 2019. The daily bag duck, three scaup, and one mottled Michigan law regarding duck blinds and limit will not exceed two birds. The duck. Two bonus blue-winged teal are decoys. possession limit will not exceed two allowed during October 6–21, 2019. The We plan to approve Little River Band times the bag limit. daily bag limit for mergansers would be of Ottawa Indians’ 2019–20 special All other Federal regulations five, only two of which could be a migratory bird hunting seasons. contained in 50 CFR part 20 would hooded merganser. The daily bag limit apply. for coots would be 15. Possession limits (j) The Little Traverse Bay Bands of Harvest surveys from the 2015–16 would be three times the daily bag Odawa Indians, Petoskey, Michigan hunting season indicated that limits. (Tribal Members Only) approximately 15 hunters harvested 9 The Tribe’s proposed nontribal- The Little Traverse Bay Bands of different waterfowl species. No sandhill member Canada goose season would run Odawa Indians (LTBB) is a self- cranes were reported harvested during from October 26, 2019, through governing, federally recognized Tribe the 2015–16 season. The LTBB proposes February 9, 2020 (107–day season located in Petoskey, Michigan, and a to monitor harvest closely through game length), with a daily bag limit of six signatory Tribe of the Treaty of 1836. bag checks, patrols, and mail surveys. In Canada geese. The Tribe’s proposed We have approved special regulations particular, the LTBB proposes nontribal member white-fronted goose for tribal members of the 1836 treaty’s monitoring the harvest of Southern season would run from October 26, signatory Tribes on ceded lands in James Bay Canada geese and sandhill 2019, through January 21, 2020, with Michigan since the 1986–87 hunting cranes to assess any impacts of tribal daily bag and possession limits season. hunting on the population. concurrent with Federal regulations. For the 2019–20 season, the LTBB We propose to approve the Little The Tribe’s proposed nontribal-member proposes regulations similar to those of Traverse Bay Bands of Odawa Indians’ light goose season would run from other Tribes in the 1836 treaty area. The requested 2019–20 special migratory October 26, 2019, through February 9, LTBB proposes the regulations to govern bird hunting regulations. 2020, and February 11 through March

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10, 2020. The light goose daily bag limit We plan to approve the Tribe’s The Tribe typically anticipates would be 20 or the maximum number requested regulations for the Lower harvest to be fewer than 10 birds. Tribal that Federal regulations allow with no Brule Reservation if the seasons’ dates reservation police and Tribal fisheries possession limits. fall within final Federal flyway enforcement officers have the authority The Tribe proposes a dove season for frameworks (applies to nontribal to enforce these migratory bird hunting non-Tribal members from September 1 hunters only). regulations. through November 29, 2019. The dove The Service proposes to approve the (l) Lower Elwha Klallam Tribe, Port daily bag limit would be 15. special migratory bird hunting Angeles, Washington (Tribal Members For tribal members, the Lower Brule regulations for the Lower Elwha Klallam Only) Sioux Tribe proposes a duck, merganser, Tribe, upon receipt of their proposal. and coot season from September 1, Since 1996, the Service and the Point 2019, through March 10, 2020. The No Point Treaty Tribes, of which Lower (m) Makah Indian Tribe, Neah Bay, daily bag limit would be six ducks, Elwha was one, have cooperated to Washington (Tribal Members Only) including no more than two hen mallard establish special regulations for The Makah Indian Tribe and the and five mallards total, two pintail, two migratory bird hunting. The Tribes are Service have been cooperating to redheads, two canvasback, three wood now acting independently, and it is our establish special regulations for ducks, three scaup, two bonus teal understanding that the Lower Elwha migratory game birds on the Makah during the first 16 days of the season, Klallam Tribe would like to establish Reservation and traditional hunting and one mottled duck or the maximum migratory bird hunting regulations for land off the Makah Reservation since number that Federal regulations allow. tribal members for the 2019–20 season. the 2001–02 hunting season. Lands off The daily bag limit for mergansers The Tribe has a reservation on the the Makah Reservation are those would be five, only two of which could Olympic Peninsula in Washington State contained within the boundaries of the be hooded mergansers. The daily bag and is a successor to the signatories of State of Washington Game Management limit for coots would be 15. Possession the Treaty of Point No Point of 1855. Units 601–603. limits would be three times the daily For the 2019–20 season, we have yet The Makah Indian Tribe proposes a bag limits. to hear from the Lower Elwha Klallam duck and coot hunting season from The Tribe’s proposed Canada goose Tribe. The Tribe usually requests September 21, 2019, to January 25, season for tribal members would run special migratory bird hunting 2020. The daily bag limit is seven from September 1, 2019, through March regulations for ducks (including ducks, including no more than five 10, 2020, with a daily bag limit of six mergansers), geese, coots, band-tailed mallards (only two hen mallard), one Canada geese. The Tribe’s proposed pigeons, snipe, and mourning doves. canvasback, one pintail, three scaup, white-fronted goose tribal season would The Lower Elwha Klallam Tribe usually and one redhead. The daily bag limit for run from September 1, 2019, through requests a duck and coot season from coots is 25. The Tribe has a year-round March 10, 2020, with a daily bag limit September 13 to January 4. The daily of two white-fronted geese or the closure on wood ducks and harlequin maximum number that Federal bag limit will be seven ducks, including ducks. Shooting hours for all species of regulations allow. The Tribe’s proposed no more than two hen mallards, one waterfowl are one-half hour before light goose tribal season would run from pintail, one canvasback, and two sunrise to sunset. September 1, 2019, through March 10, redheads. The daily bag and possession For geese, the Tribe proposes that the 2020. A conservation order will also limit on harlequin duck will be one per season open on September 21, 2019, and occur March 11, through May 1, 2020. season. The coot daily bag limit will be close January 25, 2020. The daily bag The light goose daily bag limit would be 25. The possession limit will be twice limit for geese is four and one brant. The 20 or the maximum number that Federal the daily bag limit, except as noted Tribe notes that there is a year-round regulations allow, with no possession above. closure on Aleutian and dusky Canada limits. For geese, the Tribe usually requests geese. The Tribe proposes a dove season for a season from September 13 to January For band-tailed pigeons, the Tribe Tribal members from September 1, 4. The daily bag limit will be four, proposes that the season open 2019, through January 31, 2020. The including no more than three light September 21 and close October 27, dove daily bag limit would be 15. geese. The season on Aleutian Canada 2019. The daily bag limit for band-tailed In the 2017 season, nontribal geese will be closed. pigeons is two. members harvested 1,527 geese and For brant, the Tribe usually proposes The Tribe anticipates that harvest 1,039 ducks. In the 2017 season, duck to close the season. under this regulation will be relatively harvest species composition was For mourning doves, band-tailed low since there are no known dedicated primarily mallard (59 percent), green- pigeon, and snipe, the Tribe usually waterfowl hunters and any harvest of winged teal (10 percent), and wigeon (6 requests a season from September 1 to waterfowl or band-tailed pigeons is percent). January 11, with a daily bag limit of 10, usually incidental to hunting for other The Tribe anticipates a duck and 2, and 8, respectively. The possession species, such as deer, elk, and bear. The goose harvest similar to those of the limit will be twice the daily bag limit. Tribe expects fewer than 50 ducks and previous years. All basic Federal All Tribal hunters authorized to hunt 10 geese to be harvested during the regulations contained in 50 CFR part 20, migratory birds are required to obtain a 2019–20 migratory bird hunting season. including the use of nontoxic shot, tribal hunting permit from the Lower All other Federal regulations Migratory Bird Hunting and Elwha Klallam Tribe pursuant to tribal contained in 50 CFR part 20 would Conservation Stamps, etc., would be law. Hunting hours would be from one- apply. The following restrictions are observed by the Tribe’s proposed half hour before sunrise to sunset. Only also proposed by the Tribe: regulations. In addition, the Lower steel, tungsten-iron, tungsten-polymer, (1) As per Makah Ordinance 44, only Brule Sioux Tribe has an official tungsten-matrix, and tin shot are shotguns may be used to hunt any Conservation Code that was established allowed for hunting waterfowl. It is species of waterfowl. Additionally, by Tribal Council Resolution in June unlawful to use or possess lead shot shotguns must not be discharged within 1982 and updated in 1996. while hunting waterfowl. 0.25 mile of an occupied area.

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(2) Hunters must be eligible, enrolled subsistence purposes. We anticipate a valid Migratory Bird Hunting and Makah tribal members and must carry fewer than 100 ducks and 100 geese Conservation Stamp (Duck Stamp), their Indian Treaty Fishing and Hunting may be harvested. which must be signed in ink across the Identification Card while hunting. No All other Federal regulations face. Special regulations established by tags or permits are required to hunt contained in 50 CFR part 20 would the Navajo Nation also apply on the waterfowl. apply. The following restrictions are reservation. (3) The Cape Flattery area is open to also proposed by the Tribe: The Tribe usually anticipates a total waterfowl hunting, except in designated (1) Hunting can occur on reservation harvest of fewer than 500 mourning wilderness areas, or within 1 mile of and off reservation on lands where the doves; fewer than 10 band-tailed Cape Flattery Trail, or in any area that Tribe has treaty-reserved hunting rights, pigeons; fewer than 1,000 ducks, coots, is closed to hunting by another or has documented traditional use. and mergansers; and fewer than 1,000 ordinance or regulation. (2) Shooting hours for all species of Canada geese for the 2019–19 season. (4) The use of live decoys and/or waterfowl are one-half hour before The Tribe measures harvest by mail baiting to pursue any species of sunrise to one-half after sunset. survey forms. Through the established waterfowl is prohibited. (3) Hunters must be eligible enrolled Navajo Nation Code, titles 17 and 18, (5) Steel or bismuth shot only for Muckleshoot Tribal members and must and 23 U.S.C. 1165, the Tribe will take waterfowl is allowed; the use of lead carry their Tribal ID while hunting. action to close the season, reduce bag shot is prohibited. (4) Tribal members hunting migratory limits, or take other appropriate actions (6) The use of dogs is permitted to birds must also have a combined if the harvest is detrimental to the hunt waterfowl. Migratory Bird Hunting Permit and migratory bird resource. The Service proposes to approve the Harvest Report Card. We propose to approve the Navajo Makah Indian Tribe’s requested 2019– (5) The use of live decoys and/or Nation’s 2019–20 special migratory bird 20 special migratory bird hunting baiting to pursue any species of hunting regulations. regulations. waterfowl is prohibited. (6) Hunting for migratory birds is with (p) Oneida Tribe of Indians of (n) Muckleshoot Indian Tribe, Auburn, shotgun only. Only steel, tungsten-iron, Wisconsin, Oneida, Wisconsin (Tribal Washington (Tribal Members Only) tungsten-polymer, tungsten-matrix, and Members Only) The Muckleshoot Indian Tribe tin shot are allowed for hunting Since 1991–92, the Oneida Tribe of Wildlife Program has submitted a waterfowl. It is unlawful to use or Indians of Wisconsin and the Service migratory bird hunting proposal for possess lead shot while hunting have cooperated to establish uniform 2019–2020. The Muckleshoot Tribe is a waterfowl. regulations for migratory bird hunting federally recognized Tribe with reserved The Service proposes to approve the by tribal and nontribal hunters within hunting rights under the Treaty of Muckleshoot Indian Tribe’s requested the original Oneida Reservation Medicine Creek 1854 and Treaty of 2019–20 special migratory bird hunting boundaries. Since 1985, the Oneida Point Elliott 1855. Hunting occurs regulations. Tribe’s Conservation Department has within the treaty areas as well as on enforced the Tribe’s hunting regulations (o) Navajo Nation, Navajo Indian lands traditionally hunted by the within those original reservation limits. Reservation, Window Rock, Arizona Muckleshoot Indian Tribe. The Oneida Tribe also has a good (Tribal Members and Nontribal Hunters) The Muckleshoot Indian Tribe working relationship with the State of proposes a duck and coot hunting Since 1985, we have established Wisconsin, and the majority of the season from September 1, 2019, to uniform migratory bird hunting seasons and limits are the same for the March 10, 2020. The daily bag limit is regulations for tribal members and Tribe and Wisconsin. seven ducks, including no more than nonmembers on the Navajo Indian For the 2019–20 season, the Tribe two hen mallard, two canvasback, two Reservation (in parts of Arizona, New submitted a proposal requesting special pintail, three scaup, two redhead, two Mexico, and Utah). The Navajo Nation migratory bird hunting regulations. For scoter, two long-tailed duck, and two owns almost all lands on the reservation ducks, the Tribe’s proposal describes goldeneye. The daily bag limit for coots and has full wildlife management the general outside dates as being is 25. The Tribe has a limit on harlequin authority. September 14 through December 8, ducks of one per season. Navajo Nation for the 2019–20 2019. The Tribe proposes a daily bag For geese, the Tribe proposes that the requests the earliest opening dates and limit of six birds, which could include season open on September 1, 2019, and longest duck, merganser, Canada goose, no more than six mallards (three hen close March 10, 2020. The daily bag and coot seasons, and the same daily mallards), six wood ducks, one redhead, limit for geese is 4 Canada geese, 6 light bag and possession limits allowed to two pintails, and one hooded geese, 10 white-fronted geese, and 2 Pacific Flyway States under final merganser. brant. The Tribe notes that there is a Federal frameworks for tribal and For geese, the Tribe requests a season year-round closure on dusky Canada nontribal members. between September 1 and December 31, geese. For both mourning dove and band- 2019, with a daily bag limit of five For band-tailed pigeons, mourning tailed pigeons, the Navajo Nation Canada geese. If a quota of 500 geese is dove, and snipe, the Tribe proposes that usually proposes seasons of September attained before the season concludes, the season open September 1, 2019, and 1–30, 2019, with daily bag limits of 10 the Tribe will recommend closing the close March 10, 2020. The daily bag and 5, respectively. Possession limits season early. limits are 2, 15, and 8, respectively. would be twice the daily bag limits. For woodcock, the Tribe proposes a The Tribe anticipates that harvest The Nation requires tribal members season between September 1 and under this regulation will be relatively and nonmembers to comply with all November 3, 2019, with a daily bag and low since no known harvest has basic Federal migratory bird hunting possession limit of two and four, occurred over the past 20 years, and regulations in 50 CFR part 20 pertaining respectively. there are no known dedicated waterfowl to shooting hours and manner of taking. For mourning dove, the Tribe or other migratory bird hunters. Harvest In addition, each waterfowl hunter age proposes a season between September 1 will be for personal cultural and 16 or older must carry on his/her person and November 3, 2019, with a daily bag

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and possession limit of 10 and 20, For geese, the Point No Point Treaty limit is 10, with no more than 5 hooded respectively. Council proposes the season open on mergansers and 16 for common snipe. The Tribe proposes shooting hours be September 7, 2019, and close March 10, For geese, coot, gallinule, sora, and one-half hour before sunrise to one-half 2020, for the Jamestown S’Klallam Virginia rail, the Tribe requests a season hour after sunset. Nontribal hunters Tribe, and open on September 1, 2019, from September 1, 2019, to January 31, hunting on the Reservation or on lands and close March 10, 2020, for the Port 2020. The daily bag limit for geese is 20, under the jurisdiction of the Tribe must Gamble S’Klallam Tribe. The daily bag in the aggregate. The daily bag limit for comply with all State of Wisconsin limits for Canada geese, light geese, and coot, gallinule, sora, and Virginia rail is regulations, including shooting hours of white-fronted geese would be 5, 3, and 20 in the aggregate. one-half hour before sunrise to sunset, 10, respectively. The Council notes that For woodcock and mourning dove, season dates, and daily bag limits. there is a year-round closure on dusky the Tribe proposes a season between Tribal members and nontribal hunters Canada geese. For brant, the Council September 1, 2019, and January 31, hunting on the Reservation or on lands proposes the season open on November 2020, with daily bag limits of 10 and 25, under the jurisdiction of the Tribe must 9, 2019, and close January 31, 2020, for respectively. observe all basic Federal migratory bird the Port Gamble S’Klallam Tribe, and For sandhill crane, the Tribe proposes hunting regulations found in 50 CFR open on January 11 and close January a season between September 1, 2019, part 20, with the following exceptions: 26, 2020, for the Jamestown S’Klallam and January 31, 2020, with a daily bag Oneida members would be exempt from Tribe. The daily bag limit for brant limit of one. All Saginaw Tribe members the purchase of the Migratory Bird would be two. exercising hunting treaty rights are Hunting and Conservation Stamp (Duck For band-tailed pigeons, the Port required to comply with Tribal Stamp); and shotgun capacity is not Gamble S’Klallam Tribe season would Ordinance 11. Hunting hours would be limited to three shells. open September 1, 2019, and close from one-half hour before sunrise to The Service proposes to approve the March 10, 2020. The Jamestown one-half hour after sunset. All other 2019–20 special migratory bird hunting S’Klallam Tribe season would open regulations in 50 CFR part 20 apply, regulations for the Oneida Tribe of September 7, 2019, and close January including the use of only nontoxic shot Indians of Wisconsin. 20, 2020. The daily bag limit for band- tailed pigeons would be two. For snipe, for hunting waterfowl. The Service proposes to approve the (q) Point No Point Treaty Council the Port Gamble S’Klallam Tribe season request for 2019–20 special migratory Tribes, Kingston, Washington (Tribal would open September 1, 2019, and bird hunting regulations for the Saginaw Members Only) close March 10, 2020. The Jamestown Tribe of Chippewa Indians. We are establishing uniform migratory S’Klallam Tribe season would open bird hunting regulations for tribal September 7, 2019, and close March 10, (s) Sauk-Suiattle Indian Tribe, members on behalf of the Point No Point 2020. The daily bag limit for snipe Darrington, Washington (Tribal Treaty Council Tribes, consisting of the would be eight. For mourning dove, the Members Only) Port Gamble S’Klallam and Jamestown Port Gamble S’Klallam Tribe season We have yet to hear from the Sauk- S’Klallam Tribes. The two tribes have would open September 1, 2019, and Suiattle Indian Tribe (SSIT), but it is our reservations and ceded areas in close January 31, 2020. The Jamestown understanding that the SSIT will request northwestern Washington State and are S’Klallam Tribe would open September a 2019–20 hunting season on all open the successors to the signatories of the 7, 2019, and close January 20, 2020. The and unclaimed lands under the Treaty Treaty of Point No Point of 1855. These daily bag limit for mourning dove of Point Elliott of January 22, 1855. This proposed regulations will apply to tribal would be 10. 2019–20 proposal would be the first members both on and off reservations The Tribe anticipates a total harvest of year the Tribe is proposing a special within the Point No Point Treaty Areas; fewer than 100 birds for the 2019–20 migratory bird hunting season. The however, the Port Gamble S’Klallam and season. The tribal fish and wildlife Tribe’s reservation is located in Jamestown S’Klallam Tribal season enforcement officers have the authority Darrington, Washington, just west of the dates differ only where indicated below. to enforce these tribal regulations. North Cascade Mountain range in Skagit For the 2019–20 season, the Point No We propose to approve the Point No County on the Sauk and Suiattle Rivers. Point Treaty Council requests special Point Treaty Council Tribe’s requested The Tribe owns and manages all the migratory bird hunting regulations for 2019–20 special migratory bird seasons. land on the reservation and some lands both the Jamestown S’Klallam and Port (r) Saginaw Tribe of Chippewa Indians, surrounding or near the reservation in Gamble S’Klallam Tribes. For ducks, the Mt. Pleasant, Michigan (Tribal Members Skagit and Snohomish Counties. All of Jamestown S’Klallam Tribe season Only) the lands that are Tribal or Reservation would open September 1, 2019, and lands are closed for non-Tribal hunting, close March 10, 2020, and coots would The Saginaw Tribe of Chippewa unless opened by an SSIT Special open September 7, 2019, and close Indians is a federally recognized, self- Regulation. February 2, 2020. The Port Gamble governing Indian Tribe, located on the The Tribe usually proposes special S’Klallam Tribes duck and coot seasons Isabella Reservation lands bound by migratory bird hunting regulations for would open from September 1, 2019, to Saginaw Bay in Isabella and Arenac ducks, geese, brant, and coot with March 10, 2020. The daily bag limit Counties, Michigan. outside dates of September 1 through would be seven ducks, including no For ducks, mergansers, and common January 31. The Tribe usually proposes more than two hen mallards, one snipe, the Tribe proposes outside dates a daily bag limit of 10 ducks, 5 geese, canvasback, one pintail, two redhead, as September 1, 2019, through January 5 brant, and 25 coot. and four scoters. The daily bag limit for 31, 2020. The Tribe proposes a daily bag Hunting hours would be from one- coots would be seven. The daily bag limit of 20 ducks, which could include half hour before sunrise to one-half hour limit and possession limit on harlequin no more than 5 each of the following: after sunset. All other regulations in 50 ducks would be one per season. The hen mallards, wood duck, black duck, CFR part 20 apply, including the use of daily possession limits are double the pintail, red head, scaup, and only nontoxic shot for hunting daily bag limits except where noted. canvasback. The merganser daily bag waterfowl.

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The Service proposes to approve the (u) Shoshone-Bannock Tribes, Fort Hall regulations in 50 CFR part 20 pertaining request for 2019–20 special migratory Indian Reservation, Fort Hall, Idaho to shooting hours, use of steel shot, and bird hunting regulations for the Sauk- (Nontribal Hunters) manner of taking. Special regulations Suiattle Indian Tribe, upon receipt of Almost all of the Fort Hall Indian established by the Shoshone–Bannock their proposal. Reservation is tribally owned. The Tribes also apply on the reservation. We note that the requested regulations Tribes claim full wildlife management (t) Sault Ste. Marie Tribe of Chippewa are nearly identical to those of last year, authority throughout the reservation, Indians, Sault Ste. Marie, Michigan and we propose to approve them for the but the Idaho Fish and Game (Tribal Members Only) 2019–20 hunting season if the seasons’ Department has disputed tribal dates fall within the final Federal jurisdiction, especially for hunting by The Sault Ste. Marie Tribe of flyway frameworks (applies to nontribal nontribal members on reservation lands Chippewa Indians is a federally hunters only). recognized, self-governing Indian Tribe, owned by non-Indians. As a distributed throughout the eastern compromise, since 1985, we have (v) Skokomish Tribe, Shelton, Upper Peninsula and northern Lower established the same waterfowl hunting Washington (Tribal Members Only) Peninsula of Michigan. The Tribe has regulations on the reservation and in a Since 1996, the Service and the Point retained the right to hunt, fish, trap, and surrounding off-reservation State zone. No Point Treaty Tribes, of which the gather on the lands ceded in the Treaty The regulations were requested by the Skokomish Tribe was one, have of Washington (1836). Tribes and provided for different season cooperated to establish special dates than in the remainder of the State. The Tribe proposes special migratory regulations for migratory bird hunting. We agreed to the season dates because The Tribes have been acting bird hunting regulations. For ducks, they would provide additional mergansers, and common snipe, the independently since 2005. The Tribe protection to mallards and pintails. The has a reservation on the Olympic Tribe proposes outside dates as State of Idaho concurred with the September 15 through December 31, Peninsula in Washington State and is a zoning arrangement. We have no successor to the signatories of the Treaty 2019. The Tribe proposes a daily bag objection to the State’s use of this zone limit of 20 ducks, which could include of Point No Point of 1855. again in the 2019–20 hunting season, We have yet to hear from the no more than 10 mallards (5 hen provided the duck and goose hunting Skokomish Tribe for the 2019–20 mallards), 5 wood duck, 5 black duck, season dates are the same as on the season. The Skokomish Tribe usually and 5 canvasbacks. The merganser daily reservation. requests a duck and coot season from bag limit is 10 in the aggregate and 16 In a proposal for the 2019–20 hunting September 16 to February 29. The daily for common snipe. season, the Shoshone–Bannock Tribes bag limit is seven ducks, including no For geese, teal, coot, gallinule, sora, request a continuous duck (including more than two hen mallards, one and Virginia rail, the Tribe requests a mergansers and coots) season, with the pintail, one canvasback, and two season from September 1 to December maximum number of days and the same redheads. The daily bag and possession 31, 2019. The daily bag limit for geese daily bag and possession limits limit on harlequin duck is one per is 20 in the aggregate. The daily bag permitted for Pacific Flyway States season. The coot daily bag limit is 25. limit for coot, teal, gallinule, sora, and under the final Federal frameworks. The The possession limit is twice the daily Virginia rail is 20 in the aggregate. Tribes propose a duck and coot season bag limit, except as noted above. with, if the same number of hunting For geese, the Tribe usually requests For woodcock, the Tribe proposes a days is permitted as last year, an a season from September 16 to February season between September 2 and opening date of October 5, 2019, and a 29. The daily bag limit is four, including December 1, 2019, with a daily bag and closing date of January 17, 2020. The no more than three light geese. The possession limit of 10 and 20, Tribes anticipate harvest will be about season on Aleutian Canada geese is respectively. 7,500 ducks. closed. For brant, the Tribe proposes a For mourning dove, the Tribe The Tribes also request a continuous season from November 1, 2019, to proposes a season between September 1 goose season with the maximum February 15, 2020, with a daily bag limit and November 14, 2019, with a daily number of days and the same daily bag of two. The possession limit is twice the bag and possession limit of 10 and 20, and possession limits permitted in daily bag limit. respectively. Idaho under Federal frameworks. The For mourning doves, band-tailed In 2017, the total estimated waterfowl Tribes propose that, if the same number pigeon, and snipe, the Tribe usually hunters were 4,573 harvesting of hunting days is permitted as in requests a season from September 16 to approximately 880 ducks. All Sault Ste. previous years, the season would have February 29, with a daily bag limit of an opening date of October 5, 2019, and Marie Tribe members exercising hunting 10, 2, and 8, respectively. The a closing date of January 17, 2020. The treaty rights within the 1836 Ceded possession limit is twice the daily bag Tribes anticipate harvest will be about Territory are required to submit annual limit. 5,000 geese. All Tribal hunters authorized to hunt harvest reports including date of The Tribes request a common snipe migratory birds are required to obtain a harvest, number and species harvested, season with the maximum number of tribal hunting permit from the and location of harvest. Hunting hours days and the same daily bag and Skokomish Tribe pursuant to tribal law. would be from one-half hour before possession limits permitted in Idaho Hunting hours would be from one-half sunrise to one-half hour after sunset. All under Federal frameworks. The Tribes hour before sunrise to sunset. Only other regulations in 50 CFR part 20 propose that, if the same number of steel, tungsten-iron, tungsten-polymer, apply, including the use of only hunting days is permitted as in previous tungsten-matrix, and tin shot are nontoxic shot for hunting waterfowl. years, the season would have an allowed for hunting waterfowl. It is The Service proposes to approve the opening date of October 5, 2019, and a unlawful to use or possess lead shot request for 2019–20 special migratory closing date of January 17, 2020. while hunting waterfowl. bird hunting regulations for the Sault Nontribal hunters must comply with The Tribe anticipates harvest to be Ste. Marie Tribe of Chippewa Indians. all basic Federal migratory bird hunting fewer than 150 birds. The Skokomish

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Public Safety Office enforcement with goose harvest at fewer than 50. including their main hunting grounds officers have the authority to enforce Hunter success will be monitored around Camano Island, Skagit Flats, and these migratory bird hunting through mandatory harvest reports Port Susan to the border of the Tulalip regulations. returned within 30 days of the season Tribes Reservation. Ceded lands are We propose to approve the closure. located in Whatcom, Skagit, Snohomish, Skokomish Tribe’s 2019–20 migratory We propose to approve the Spokane and Kings Counties, and a portion of bird hunting season, upon receipt of Tribe’s requested 2019–20 special Pierce County, Washington. The their proposal. migratory bird hunting regulations. Stillaguamish Tribe of Indians is a (w) Spokane Tribe of Indians, Spokane (x) Squaxin Island Tribe, Squaxin Island federally recognized Tribe and reserves Indian Reservation, Wellpinit, Reservation, Shelton, Washington the Treaty Right to hunt (U.S. v. Washington (Tribal Members Only) (Tribal Members Only) Washington). The Tribe proposes their duck The Spokane Tribe of Indians wishes The Squaxin Island Tribe of (including mergansers and coot) and to establish waterfowl seasons on their Washington and the Service have goose seasons run from October 1, 2019, reservation for its membership to access cooperated since 1995 to establish to March 10, 2020. The daily bag limit as an additional resource. An special tribal migratory bird hunting on ducks (including sea ducks and established waterfowl season on the regulations. These special regulations mergansers) is 10 including no more reservation will allow access to a apply to tribal members on the Squaxin than seven mallards, 3 pintail, 3 resource for members to continue Island Reservation, located in western redhead, 3 scaup, and 3 canvasback. practicing a subsistence lifestyle. Washington near Olympia, and all lands The daily bag limit for coot is 25. For The Spokane Indian Reservation is within the traditional hunting grounds geese, the daily bag limit is 6 Canada located in northeastern Washington of the Squaxin Island Tribe. geese, 12 white-fronted geese, and 8 State. The reservation comprises For the 2019–20 season, we have yet light geese. The season on brant is approximately 157,000 acres. The to hear from the Squaxin Island Tribe. closed. Possession limits are totals of boundaries of the Reservation are the The Tribe usually requests to establish these three daily bag limits. Columbia River to the west, the Spokane duck and coot seasons that would run The Tribe proposes the snipe season River to the south (now Lake Roosevelt), from September 1 through January 15. run from October 1, 2019, to January 31, Tshimikn Creek to the east, and the 48th The daily bag limit for ducks would be 2020. The daily bag limit for snipe is 10. Parallel as the north boundary. Tribal five per day and could include only one Possession limits are three times the membership comprises approximately canvasback. The season on harlequin daily bag limit. 2,300 enrolled Spokane Tribal Members. ducks is closed. For coots, the daily bag These proposed regulations would limit is 25. For snipe, the Tribe usually Harvest is regulated by a punch card allow Tribal Members, spouses of proposes that the season start on system. Tribal members hunting on Spokane Tribal Members, and first- September 15 and end on January 15. lands under this proposal will observe generation descendants of a Spokane The daily bag limit for snipe would be all basic Federal migratory bird hunting Tribal Member with a tribal permit and eight. For band-tailed pigeon, the Tribe regulations found in 50 CFR part 20, Federal Migratory Bird Hunting and usually proposes that the season start on which will be enforced by the Conservation Stamp an opportunity to September 1 and end on December 31. Stillaguamish Tribal law enforcement. utilize the reservation and ceded lands The daily bag limit would be five. The Tribal members are required to use steel for waterfowl hunting. These possession limit would be twice the shot or a nontoxic shot as required by regulations would also benefit tribal daily bag limit. Federal regulations. membership through access to this The Tribe usually proposes a season The Tribe anticipates a total harvest of resource throughout Spokane Tribal on geese starting September 15 and 200 ducks, 100 geese, 50 mergansers, ceded lands in eastern Washington. By ending on January 15. The daily bag 100 coots, and 100 snipe. Anticipated Spokane Tribal Referendum, spouses of limit for geese would be four, including harvest needs include subsistence and Spokane Tribal Members and children no more than two snow geese. The ceremonial needs. Certain species may of Spokane Tribal Members not enrolled season on Aleutian and cackling Canada be closed to hunting for conservation are allowed to harvest game animals geese would be closed. For brant, the purposes, and consideration for the within the Spokane Indian Reservation Tribe usually proposes that the season needs of certain species will be with the issuance of hunting permits. start on September 1 and end on addressed. The Tribe requests to establish duck December 31. The daily bag limit for The Service proposes to approve the seasons that would run from September brant would be two. The possession Stillaguamish Tribe’s request for 2019– 2, 2019, through January 31, 2020. The limit would be twice the daily bag limit. 20 special migratory bird hunting tribe is requesting the daily bag limit for We propose to approve the Tribe’s regulations. ducks to be consistent with final Federal 2019–20 special migratory bird hunting (z) Swinomish Indian Tribal frameworks. The possession limit is regulations, upon receipt of their Community, LaConner, Washington twice the daily bag limit. proposal. (Tribal Members Only) The Tribe proposes a season on geese starting September 2, 2019, and ending (y) Stillaguamish Tribe of Indians, In 1996, the Service and the on January 31, 2020. The Tribe is Arlington, Washington (Tribal Members Swinomish Indian Tribal Community requesting the daily bag limit for geese Only) began cooperating to establish special to be consistent with final Federal The Stillaguamish Tribe of Indians regulations for migratory bird hunting. frameworks. The possession limit is and the Service have cooperated to The Swinomish Indian Tribal twice the daily bag limit. establish special regulations for Community is a federally recognized Based on the quantity of requests the migratory game birds since 2001. For Indian Tribe consisting of the Spokane Tribe of Indians has received, the 2019–20 season, the Tribe requests Swinomish, Lower Skagit, Samish, and the Tribe anticipates harvest levels for regulations to hunt all open and Kikialous. The Swinomish Reservation the 2019–20 season for both ducks and unclaimed lands under the Treaty of was established by the Treaty of Point geese to be fewer than 100 total birds, Point Elliott of January 22, 1855, Elliott of January 22, 1855, and lies in

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the Puget Sound area north of Seattle, same as those established in accordance 2020, with a daily bag limit of 7 geese Washington. with final Federal frameworks. For coot, and a possession limit of 10. For brant, For the 2019–20 season, the Tribal daily bag and possession limits are 25 the Tribe proposes a season from Community requests to establish a and 50, respectively, and for snipe 8 and November 1 to 10, 2019, with a daily migratory bird hunting season on all 16, respectively. Ceremonial hunting bag and possession limit of two. areas that are open and unclaimed and may be authorized by the Department of The Tribe proposes a mourning dove consistent with the meaning of the Natural Resources at any time upon season between September 1 and treaty. The Tribe proposes their duck application of a qualified tribal member. December 31, 2019, with a daily bag (including mergansers and coot) and Such a hunt must have a bag limit limit of 12 and possession limit of 15. goose seasons run from September 1, designed to limit harvest only to those The anticipated migratory bird 2019, to March 9, 2020. The daily bag birds necessary to provide for the harvest under this proposal would be limit on ducks is 20. The daily bag limit ceremony. 100 ducks, 5 geese, 2 brant, and 10 for coot is 25. For geese, the daily bag For geese, tribal members propose a coots. Tribal members must have the limit is 10. The season on brant runs season from September 1, 2019, through tribal identification and tribal harvest from September 1, 2019, to March 9, February 29, 2020. The goose daily bag report card on their person to hunt. 2020. The daily bag limit is five. and possession limits would be 10 and Tribal members hunting on the The Tribe proposes the snipe season 20, respectively, except that the bag Reservation will observe all basic run from September 1, 2019, to March limits for brant, cackling Canada geese, Federal migratory bird hunting 9, 2020. The daily bag limit for snipe is and dusky Canada geese would be those regulations found in 50 CFR part 20, 15. The Tribe proposes the mourning established in accordance with final except shooting hours would be 15 dove season run from September 1, Federal frameworks. minutes before official sunrise to 15 2019, to March 9, 2020. The daily bag All hunters on Tulalip Tribal lands minutes after official sunset. limit for mourning dove is 15. The Tribe are required to adhere to shooting hour We propose to approve the Tribe’s proposes the band-tailed pigeon season regulations set at one-half hour before 2019–20 special migratory bird hunting run from September 1, 2019, to March sunrise to sunset, special tribal permit regulations. 9, 2020. The daily bag limit for band- requirements, and a number of other (cc) Wampanoag Tribe of Gay Head, tailed pigeon is three. The Swinomish tribal regulations enforced by the Tribe. Aquinnah, Massachusetts (Tribal Indian Tribal Community requests to Each nontribal hunter 16 years of age Members Only) have no possession limits. and older hunting pursuant to Tulalip The Community anticipates that the Tribes’ Ordinance No. 67 must possess The Wampanoag Tribe of Gay Head is regulations will result in the harvest of a valid Federal Migratory Bird Hunting a federally recognized Tribe located on approximately 600 ducks and 200 geese. and Conservation Stamp and a valid the island of Martha’s Vineyard in The Swinomish utilize a report card and State of Washington Migratory Massachusetts. The Tribe has permit system to monitor harvest and Waterfowl Stamp. Each hunter must approximately 560 acres of land, which will implement steps to limit harvest validate stamps by signing across the it manages for wildlife through its where conservation is needed. All tribal face. natural resources department. The Tribe regulations will be enforced by tribal Although the season length requested also enforces its own wildlife laws and fish and game officers. by the Tulalip Tribes appears to be quite regulations through the natural We propose to approve these 2019–20 liberal, harvest information indicates a resources department. special migratory bird hunting total take by tribal and nontribal hunters We have yet to hear from the regulations. of fewer than 1,000 ducks and 500 geese Wampanoag Tribe of Gay Head. The Tribe usually proposes a duck season of (aa) The Tulalip Tribes of Washington, annually. We propose to approve the Tulalip October 8 through February 16. The Tulalip Indian Reservation, Marysville, Tribe usually proposes a daily bag limit Washington (Tribal Members Only) Tribe’s request for 2019–20 special migratory bird hunting regulations. of eight birds, which could include no The Tulalip Tribes are the successors more than four hen mallards, four in interest to the Tribes and bands (bb) Upper Skagit Indian Tribe, Sedro mottled ducks, one fulvous whistling signatory to the Treaty of Point Elliott of Woolley, Washington (Tribal Members duck, four mergansers, three scaup, two January 22, 1855. The Tulalip Tribes’ Only) hooded mergansers, three wood ducks, government is located on the Tulalip The Upper Skagit Indian Tribe and one canvasback, two redheads, two Indian Reservation just north of the City the Service have cooperated to establish pintail, and four of all other species not of Everett in Snohomish County, special regulations for migratory game listed. The season for harlequin ducks is Washington. The Tribes or individual birds since 2001. The Tribe has usually closed. The Tribe usually tribal members own all of the land on jurisdiction over lands within Skagit, proposes a teal (green-winged and blue) the reservation, and they have full Island, and Whatcom Counties, season of October 8 through February wildlife management authority. All Washington. The Tribe issues tribal 16. A daily bag limit of 10 teal would lands within the boundaries of the hunters a harvest report card that will be in addition to the daily bag limit for Tulalip Tribes Reservation are closed to be shared with the State of Washington. ducks. nonmember hunting unless opened by For the 2019–20 season, the Tribe For sea ducks, the Tribe usually Tulalip Tribal regulations. requests a duck season starting October proposes a season between October 1 For ducks, mergansers, coot, and 1, 2019, and ending February 29, 2020. and February 16, with a daily bag limit snipe, the Tribe proposes seasons for The Tribe proposes a daily bag limit of of seven, which could include no more tribal members from September 1, 2019, 15 with a possession limit of 20. The than one hen eider and four of any one through February 29, 2020. Daily bag Tribe requests a coot season starting species unless otherwise noted above. and possession limits would be 15 and October 1, 2019, and ending February For Canada geese, the Tribe usually 30 ducks, respectively, except that for 15, 2020. The coot daily bag limit is 20 requests a season between September 3 blue-winged teal, canvasback, with a possession limit of 30. and 15 and between October 22 and harlequin, pintail, and wood duck, the The Tribe proposes a goose season February 16, with a daily bag limit of bag and possession limits would be the from October 1, 2019, to February 28, eight Canada geese. For snow geese, the

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tribe usually requests a season between bag limits of 10, 10, 25, and 25, Proposed daily bag limits for band- September 3 and 13, and between respectively. Shooting hours are one- tailed pigeons and mourning doves November 19 and February 16, with a half hour before sunrise to one-half hour would be 3 and 10, respectively. daily bag limit of 15 snow geese. after sunset. Nontoxic shot is required. Possession limits for the above For woodcock, the Tribe usually Based on past harvest surveys, the species are twice the daily bag limits. proposes a season between October 8 Tribe anticipates harvest of 1,000 to Shooting hours would be from one-half and November 24, with a daily bag limit 2,000 Canada geese and 1,000 to 1,500 hour before sunrise to sunset. There of three. For sora and Virginia rails, the ducks. The White Earth Reservation would be no open season for sandhill Tribe usually requests a season of Tribal Council employs four full-time cranes, rails, and snipe on the White September 3 through November 3, with conservation officers to enforce Mountain Apache lands under this a daily bag limit of 5 sora and 10 migratory bird regulations. proposal. Virginia rails. For snipe, the Tribe We propose to approve the Tribe’s A number of special regulations apply usually requests a season of September 2019–20 special migratory bird hunting to tribal and nontribal hunters, which 3 through December 8, with a daily bag regulations. may be obtained from the White Mountain Apache Tribe Game and Fish limit of eight. (ee) White Mountain Apache Tribe, Fort Prior to 2012, the Tribe had 22 Department. Apache Indian Reservation, Whiteriver, registered tribal hunters and estimates We plan to approve the White Arizona (Tribal Members and Nontribal harvest to be no more than 15 geese, 25 Mountain Apache Tribe’s requested Hunters) mallards, 25 teal, 50 black ducks, and 50 2019–20 special migratory bird hunting of all other species combined. Tribal The White Mountain Apache Tribe regulations. owns all reservation lands, and the members hunting on the Reservation Public Comments will observe all basic Federal migratory Tribe has recognized full wildlife bird hunting regulations found in 50 management authority. The Department of the Interior’s CFR part 20. The Tribe requires hunters The hunting zone for waterfowl is policy is, whenever possible, to afford to register with the Harvest Information restricted and is described as: The the public an opportunity to participate Program. length of the Black River west of the in the rulemaking process. Accordingly, We propose to approve the Tribe’s Bonito Creek and Black River we invite interested persons to submit 2019–20 special migratory bird hunting confluence and the entire length of the written comments, suggestions, or regulations, upon receipt of their Salt River forming the southern recommendations regarding the proposal. boundary of the reservation; the White proposed regulations. Before River, extending from the Canyon Day promulgating final migratory game bird (dd) White Earth Band of Ojibwe, White Stockman Station to the Salt River; and hunting regulations, we will consider all Earth, Minnesota (Tribal Members Only) all stock ponds located within Wildlife comments we receive. These comments, The White Earth Band of Ojibwe is a Management Units 4, 5, 6, and 7. Tanks and any additional information we federally recognized tribe located in located below the Mogollon Rim, within receive, may lead to final regulations northwest Minnesota and encompasses Wildlife Management Units 2 and 3, that differ from these proposals. all of Mahnomen County and parts of will be open to waterfowl hunting You may submit your comments and Becker and Clearwater Counties. The during the 2019–20 season. The length materials concerning this proposed rule reservation employs conservation of the Black River east of the Black by one of the methods listed in officers to enforce migratory bird River/Bonito Creek confluence is closed ADDRESSES. We will not accept regulations. The Tribe and the Service to waterfowl hunting. All other waters comments sent by email or fax. We will first cooperated to establish special of the reservation would be closed to not consider hand-delivered comments tribal regulations in 1999. waterfowl hunting for the 2019–20 that we do not receive, or mailed For the 2019–20 migratory bird season. comments that are not postmarked, by hunting season, the White Earth Band of For nontribal and tribal hunters, the the date specified in DATES. Ojibwe requests a duck season to start Tribe proposes a continuous duck, coot, We will post all comments in their September 7 and end December 15, merganser, gallinule, and moorhen entirety—including your personal 2019. For ducks, they request a daily hunting season, with an opening date of identifying information—on http:// bag limit of 10, including no more than October 19, 2019, and a closing date of www.regulations.gov. Before including 2 hen mallards, 2 pintail, and 2 January 26, 2020. The Tribe proposes a your address, phone number, email canvasback. For mergansers, the Tribe daily duck (including mergansers) bag address, or other personal identifying proposes the season to start September limit of seven, which may include no information in your comment, you 7 and end December 15, 2019. The more than two redheads, two pintail, should be aware that your entire merganser daily bag limit would be five, three scaup, seven mallards (including comment—including your personal with no more than two hooded no more than two hen mallards), and identifying information—may be made mergansers. For geese, the Tribe two canvasback. The daily bag limit for publicly available at any time. While proposes an early season from coots, gallinules, and moorhens would you can ask us in your comment to September 1 through 20, 2019, and a be 25, singly or in the aggregate. withhold your personal identifying late season from September 21 through For geese, the Tribe proposes a season information from public review, we December 15, 2019. The early season from October 19, 2019, through January cannot guarantee that we will be able to daily bag limit is 10 geese, and the late 26, 2020. Hunting would be limited to do so. season daily bag limit is 5 geese. Canada geese, and the daily bag limit Comments and materials we receive, For coots, the Tribe usually proposes would be three. as well as supporting documentation we a September 1 through November 30, Season dates for band-tailed pigeons used in preparing this proposed rule, 2019, season with daily bag limits of 20 and mourning doves would start will be available for public inspection coots. For snipe, woodcock, rail, and September 1 and end September 15, on http://www.regulations.gov, or by mourning dove, the Tribe usually 2019, in Wildlife Management Unit 10 appointment, during normal business proposes a September 1 through and all areas south of Y–70 and Y–10 in hours, at the U.S. Fish and Wildlife November 30, 2019, season with daily Wildlife Management Unit 7, only. Service, Division of Migratory Bird

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Management, 5275 Leesburg Pike, Falls and Executive Orders, see our June 14, List of Subjects in 50 CFR Part 20 Church, VA 22041–3803. 2018, proposed rule (83 FR 27836): Exports, Hunting, Imports, Reporting We will consider, but possibly may • National Environmental Policy Act and recordkeeping requirements, not respond in detail to, each comment. Consideration; Transportation, Wildlife. As in the past, we will summarize all • Endangered Species Act Authority comments we receive during the Consideration; The rules that eventually will be comment period and respond to them • after the closing date in the preamble of Regulatory Flexibility Act; promulgated for the 2019–20 hunting a final rule. • Small Business Regulatory season are authorized under 16 U.S.C. Enforcement Fairness Act; 703–712 and 16 U.S.C. 742 a–j. Required Determinations • Paperwork Reduction Act of 1995; Dated: June 27, 2019. Based on our most current data, we • Unfunded Mandates Reform Act; Karen Budd-Falen, are affirming our required • Deputy Solicitor for Parks and Wildlife, determinations made in the June 14 and Executive Orders 12630, 12866, Exercising the Authority of the Assistant September 21 proposed rules; for 12988, 13132, 13175, 13211, 13563, and Secretary for Fish and Wildlife and Parks. descriptions of our actions to ensure 13771. [FR Doc. 2019–14319 Filed 7–5–19; 8:45 am] compliance with the following statutes BILLING CODE 4333–15–P

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Notices Federal Register Vol. 84, No. 130

Monday, July 8, 2019

This section of the FEDERAL REGISTER the collection of information that such Total Burden Hours: 104. contains documents other than rules or persons are not required to respond to Ruth Brown, proposed rules that are applicable to the the collection of information unless it Departmental Information Collection public. Notices of hearings and investigations, displays a currently valid OMB control committee meetings, agency decisions and Clearance Officer. number. rulings, delegations of authority, filing of [FR Doc. 2019–14456 Filed 7–5–19; 8:45 am] petitions and applications and agency Agricultural Research Service BILLING CODE 3410–03–P statements of organization and functions are examples of documents appearing in this Title: ARS Animal Health National section. Program Assessment Survey Form. DEPARTMENT OF AGRICULTURE OMB Control Number: 0518–0042. Forest Service DEPARTMENT OF AGRICULTURE Summary of Collection: The Agricultural Research Service (ARS) Malheur National Forest, Blue Submission for OMB Review; covers the span of nutrition, food safety Mountain and Prairie City Ranger Comment Request and quality, animal and plant Districts and Wallowa-Whitman July 2, 2019. production and protection, and natural National Forest, Whitman Ranger The Department of Agriculture has resources and sustainable agricultural District, Oregon; Austin Project submitted the following information systems and it organized into seventeen AGENCY: Forest Service, USDA. collection requirement(s) to OMB for National Programs addressing specific ACTION: Notice of intent to prepare an review and clearance under the areas of this research. Research in the environmental impact statement. Paperwork Reduction Act of 1995. Agency is conducted through Comments are requested regarding; coordinated National Programs on a SUMMARY: The USDA Forest Service will whether the collection of information is five-year cycle. The cycle ensures that prepare an environmental impact necessary for the proper performance of ARS research meets OMB’s Research statement (EIS) to disclose the the functions of the agency, including and Development Investment Criteria environmental effects of watershed and whether the information will have and other external requirements, fisheries restoration, upland restoration practical utility; the accuracy of the including the Research Title of the Farm activities, unique habitat restoration, agency’s estimate of burden including Bill, and the Government Performance hazardous fuels buffer treatments, the validity of the methodology and and Results Act of 1993 (GPRA). These prescribed burning and unplanned assumptions used; ways to enhance the ignitions, road activities, and recreation quality, utility and clarity of the National Programs serve to bring coordination, communication, and system changes in the Austin planning information to be collected; and ways to area. The Forest Service identified the minimize the burden of the collection of empowerment to approximately 690 research projects carried out by ARS potential need for a project-specific information on those who are to Forest Plan amendment. This notice and focus on the relevance, impact, and respond, including through the use of identifies the Planning Rule provisions quality of ARS research. The requested appropriate automated, electronic, likely to be directly related to the plan mechanical, or other technological voluntary electronic evaluation survey amendments. collection techniques or other forms of will give the beneficiaries of ARS DATES: Comments concerning the scope information technology. research the opportunity to provide of the analysis must be received by Comments regarding this information input on the impact of several ARS August 7, 2019. The draft EIS is collection received by August 7, 2019 National Programs. will be considered. Written comments expected in the spring of 2020 and the Need and Use of the Information: The should be addressed to: Desk Officer for final EIS is expected in the fall of 2020. purpose of the survey is to assess the Agriculture, Office of Information and ADDRESSES: Send written comments to Regulatory Affairs, Office of impact of the research in the current Robert Foxworth, District Ranger, Blue Management and Budget (OMB), New National Program cycle and ensure Mountain Ranger District, c/o Kate Executive Office Building, 725 17th relevance for the next cycle. Failure to Cueno, P.O. Box 909, John Day, OR Street NW, Washington, DC 20502. collect input from our customers on the 97845. Comments may also be sent via Commenters are encouraged to submit impact of our research program would email to comments-pacificnorthwest- their comments to OMB via email to: significantly inhibit the relevance and [email protected], or via [email protected] or credibility of the research conducted at facsimile to 541–575–3319. fax (202) 395–5806 and to Departmental ARS. FOR FURTHER INFORMATION CONTACT: Kate Clearance Office, USDA, OCIO, Mail Description of Respondents: Cueno, National Environmental Policy Stop 7602, Washington, DC 20250– Individuals or households; Business or Act Planner, Blue Mountain Ranger 7602. Copies of the submission(s) may other for-profit; Not-for-profit District, 431 Patterson Bridge Road, P.O. be obtained by calling (202) 720–8958. institutions; State, Local or Tribal Box 909, John Day, OR 97845. Phone: An agency may not conduct or Government. 541–575–3031. Email: klcueno@ sponsor a collection of information fs.fed.us. unless the collection of information Number of Respondents: 600. Individuals who use displays a currently valid OMB control Frequency of Responses: Reporting: telecommunication devices for the deaf number and the agency informs Other (5 years). (TDD) may call the Federal Information potential persons who are to respond to Relay Service (FIRS) at 1–800–877–8339

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between 8 a.m. and 8 p.m., Eastern (1) Watershed and fisheries promote watershed health. Road Time, Monday through Friday. restoration (approximately 3,710 acres) maintenance and road construction for SUPPLEMENTARY INFORMATION: The to promote watershed health and haul would occur on open and closed Austin planning area encompasses resiliency. Activity types include National Forest System roads to provide approximately 78,200 acres in the the thinning along perennial and seasonally safe access and adequate drainage; some Bridge Creek-Middle Fork John Day flowing streams with or without state highways may also be used. watershed and the headwaters of the anadromous fish habitat, tipping and Temporary roads (approximately 43 Middle Fork John Day River. The legal felling trees directly into streams, and miles) would be constructed to access description for the planning area removing encroaching conifers from 30 some timber harvest units, which would includes Townships 10 through 13 riparian meadow areas. be rehabilitated following use. The South, Ranges 35, 35 1⁄2, and 36 East, (2) Upland restoration activites following road system changes are Willamette Meridian, Grant County, (approximately 35,720 acres) to proposed: Closing 57 miles of currently Oregon. The full scoping package is maintain and improve diverse forest open road, confirming the previous available on the Malheur National composition and stocking to promote administrative closure of 31 miles of Forest website: https://www.fs.usda.gov/ landscape resiliency. Activities include road, returning 11 miles of existing project/?project=53678. commercial thinning (dry forest roadbed to the system as closed roads, ponderosa pine, dry forest mixed opening 6.5 miles of road, relocating 1.2 Purpose and Need for Action conifer, and moist forest restoration), miles of road out of a stream floodplain, The purpose and need for the Austin biomass treatment, and non-commercial decommissioning 13 miles of road (and Project was developed by comparing thinning. providing alternate route access by management objectives and desired (3) Unique habitat restoration opening roads as already described and conditions in the Malheur Forest Plan to (approximately 840 acres) to improve with 0.3 miles of new road the existing conditions in the Austin critical wildlife habitat. Activities construction), and converting 1.2 miles Project planning area related to forest include aspen, mountain mahogany, of open road to trail. Disposal sites for and watershed resiliency and and upland meadow restoration which excess material from road work and biophysical processes and function. would include tipping, felling, expansion of two rock pits are also Where the Forest Plan information was jackstrawing, hinging, and/or removing proposed. not explicit, best available science and conifers that are encroaching into these (7) Recreation system changes to local research were used in a habitat types. enhance recreational opportunties and collaborative setting with stakeholders. (4) Hazardous fuels buffer treatments interpret local history. Activities The purpose and need is to: (1) Promote (approximately 3,240 acres) to promote include recreation site and trail watershed health and resiliency, forest conditions that allow for the developments, intepretive sign including improved water quality and reintroduction of fire on the landscape installation, and Dixie Campground flow characteristics, riparian vegetation and create conditions conducive to hazard fuels reduction. communities, and aquatic habitats to firefighter and public safety. Activities Preliminary wildlife connectivity maintain healthy ecological function include hazardous fuels buffer corridors and security areas have been and process; (2) Maintain and improve treatments (commercial harvest, post identified between late and old diverse forest composition and stocking and pole or firewood sales, non- structure stands to allow for movement levels to promote landscape resiliency commercial thinning, piling, of old-growth dependent species and within a complex disturbance regime of mastication, chipping, pile burning, provide security for big game. wildfire, drought, insects, and diseases; underburning, jackpot burning, and The Austin Project will also include (3) Improve wildlife habitat, including biochar) along the boundaries of public a variety of project design criteria that critical wildlife habitat types, big game and private lands, US Highway 26, and serve to mitigate impacts of activities to security areas, and old forest habitat; (4) Oregon Highway 7. forest resources, including: Wildlife, Promote forest conditions that allow for (5) Prescribed burning and unplanned soils, watershed condition, aquatic the reintroduction of fire upon the ignitions (approximately 76,700 acres) species, riparian habitat conservation landscape where naturally occurring fire to allow for the reintroduction of fire on areas, heritage resources, visuals, has been excluded. Create conditions the landscape and create conditions rangeland, botanical resources, and conducive to firefighter and public conducive to firefighter and public invasive plants. The proposed action safety to improve the ability to protect safety. Approximately 790 acres of may also amend plan components in the the public and private land interface, prescribed burning would occur outside Malheur Forest Plan, as amended: and natural resource values; (5) Move the Austin planning area, including 110 Dedicated old growth unit changes, toward a safe and sustainable minimum acres on the Wallowa-Whitman National reduce satisfactory and/or total cover, road system that is environmentally and Forest, in order to incorporate roads and removal of trees greater than or equal to economically sustainable, including natural barriers for containment to 21 inches diameter at breast height, consideration of the interaction of the reduce resource damange and increase harvest within late and old structure road network and the stream network; firefighter safety. Treated stands would stands, and not maintaining and (6) Contribute to the region’s social see a combination of burning piled connectivity between all late and old and economic vitality by promoting material and underburning. Stands not structure and old growth stands. multiple uses in the Austin planning mechanically treated would be managed When proposing a Forest Plan area, such as providing a variety of primarily with the use of prescribed amendment, the 2012 planning rule (36 wood products, improving conditions of burning. As conditions and stand CFR 219), as amended, requires the grazing allotments, enhancing characteristics allow, unplanned responsible official to provide in the recreational opportunities, and ignitions within the planning area initial notice ‘‘which substantive preserving local cultural history. would be used to meet the objectives of requirements of 36 CFR 219.8 through prescribed burning. 219.11 are likely to be directly related Proposed Action (6) Road activities and road system to an amendment’’ (36 CFR The proposed action to address the changes to facilitate restoration 219.13(b)(2)). The following substantive purpose and need includes: activities, improve road conditions, and requirements of the 36 CFR 219

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planning regulations would likely be Nature of Decision To Be Made DEPARTMENT OF AGRICULTURE directly related to the proposed amendment: Based on the purpose and need, the National Institute of Food and § 219.8(a)(1)(ii) Contributions of the Responsible Official will review the Agriculture plan area to ecological conditions proposed action, the other alternatives, within the broader landscape influenced the environmental consequences, and Notice of Intent To Request Approval by the plan area; public comments in order to make the To Renew an Information Collection § 219.8(a)(1)(iii) Conditions in the decision: (1) Whether to implement the and Record Keeping Requirement broader landscape that may influence proposed activities; and if so, how much AGENCY: National Institute of Food and the sustainability of resources and and at what specific locations; (2) What, Agriculture, USDA. ecosystems within the plan area; if any, specific project monitoring ACTION: § 219.8(a)(1)(iv) [. . .] the ability of Notice and request for requirements are needed to assure comments. terrestrial and aquatic ecosystems on the project design criteria and mitigation plan area to adapt to change; measures are implemented and SUMMARY: In accordance with the § 219.8(a)(1)(v) [. . .] opportunities to effective, and to evaluate the success of Paperwork Reduction Act of 1995 and restore fire adapted ecosystems; the project objectives. Office of Management and Budget § 219.8(a)(1)(vi) Opportunities for (OMB) regulations that implement the landscape scale restoration; Scoping Process Paperwork Reduction Act of 1995, this § 219.9(a)(1) Ecosystem integrity. This notice of intent initiates the notice announces the National Institute [. . .maintain or restore the ecological of Food and Agriculture’s (NIFA) scoping process, which guides the integrity of terrestrial and aquatic intention to request approval to renew development of the environmental ecosystems and watersheds in the plan an information collection and record area, including plan components to impact statement. The interdisciplinary keeping requirement for the Veterinary maintain or restore their structure, team will continue to seek information Medical Loan Repayment Program function, composition, and and comments from Federal, State, and (VMLRP). connectivity]; local agencies, Tribal governments, and § 219.9(a)(2) Ecosystem diversity. other individuals or organizations that DATES: Written comments on this notice [. . . maintain or restore the diversity of may be interested in, or affected by, the must be received by September 6, 2019, ecosystems and habitat types proposed action. There is a collaborative to be assured of consideration. Comments received after that date will throughout the plan area]; group in the area that the be considered to the extent practicable. § 219.9(a)(2)(i) Key characteristics interdisciplinary team will interact with associated with terrestrial and aquatic during the analysis process. ADDRESSES: You may submit comments, ecosystem types; identified by Veterinary Medicine Loan § 219.10(a)(1) [. . . to provide for It is important that reviewers provide Repayment Program FRN, through the ecosystem services and multiple uses in their comments at such times and in Federal eRulemaking Portal: http:// the plan area the responsible official such manner that they are useful to the www.regulations.gov. Follow the shall consider: Aesthetic values, habitat agency’s preparation of the instructions for submitting comments. and habitat connectivity, timber, environmental impact statement. Include Veterinary Medicine Loan vegetation, viewsheds, and other Therefore, comments should be Repayment Program FRN in the subject relevant resources and uses]; provided prior to the close of the line of the message. Instructions: All § 219.10(a)(5) Habitat conditions, comment period and should clearly comments received must include the subject to the requirements of § 219.9, articulate the reviewer’s concerns and agency name and reference Veterinary for wildlife, fish, and plants commonly contentions. Medicine Loan Repayment Program enjoyed and used by the public; for Comments received in response to FRN. All comments received will be hunting, fishing, trapping, gathering, this solicitation, including names and posted to http://www.regulations.gov, observing, subsistence, and other including any personal information addresses of those who comment, will activities (in collaboration with provided. federally recognized Tribes, Alaska be part of the public record for this FOR FURTHER INFORMATION CONTACT: Native Corporations, other Federal proposed action. Comments submitted Robert Martin, Records Officer; Email: agencies, and State and local anonymously will be accepted and [email protected]. Phone: 202–445– governments); considered, however, anonymous 5388. § 219.10(a)(7) Reasonably foreseeable comments will not afford the Agency risks to ecological, social, and economic with the ability to provide the SUPPLEMENTARY INFORMATION: sustainability. respondent with subsequent Title: Veterinary Medical Loan § 219.10(a)(8) [. . .] the ability of the environmental documents, nor will Repayment Program (VMLRP). terrestrial and aquatic ecosystems on the those who submit anonymous OMB Number: 0524–0050. plan area to adapt to change (§ 219.8). comments have standing to object to the Type of Request: Intent to request If the proposed project-specific subsequent decision under 36 CFR 218. approval to renew an information amendments are determined to be collection and record keeping directly related to the substantive rule Dated: May 16, 2019. requirement for three years. requirements, the responsible official Frank R. Beum, Abstract: In January 2003, the must apply those requirements within Acting Associate Deputy Chief, National National Veterinary Medical Service Act the scope and scale of the amendment Forest System. (NVMSA) was passed into law adding (36 CFR 219.13(b)(5) and (6)). [FR Doc. 2019–14388 Filed 7–5–19; 8:45 am] section 1415A to the National BILLING CODE 3411–15–P Agricultural Research, Extension, and Responsible Official Teaching Policy Act of 1997. This law The Forest Supervisor of the Malheur established a new Veterinary Medicine National Forest is the Responsible Loan Repayment Program (VMLRP) (7 Official. U.S.C. 3151a) authorizing the Secretary

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of Agriculture to carry out a program of record keeping requirement for VMLRP with the new information proposed. entering into agreements with participants and to collect additional Each new requirement is described in veterinarians under which they agree to information from current participants, detail below. provide veterinary services in their employers and past participants. In 2019, the VMLRP Program is veterinarian shortage situations. The The records maintained and the requesting renewal of this record purpose of the program is to assure an information collected allow for better keeping and information collection adequate supply of trained food animal oversight and assessment of the requirement. All documents will remain veterinarians in shortage situations and program. Additionally, to streamline provide USDA with a pool of veterinary OMB approval processes all previously unchanged. specialists to assist in the control and approved VMLRP information Total Estimate of Burden: The eradication of animal disease outbreaks. collections (OMB Control Number estimated annual reporting burden for In 2016, the VMLRP Program Office 0524–0046 and 0524–0047) were all VMLRP collection is as follows: proposed and received approval for a combined into a single package along

Estimated Number of number of Average Annual Type of respondents respondents responses per burden hours burden hours respondent per response requested

Applicants: Veterinary Medicine Loan ...... Repayment Program ...... Application OMB0524–0047 ...... 602 1 1350 1350 Applicants subtotal ...... 1350 State Animal Health Officials: Veterinary Medicine Loan Repayment Program Shortage Situation Nomina- tion OMB0524–0046 ...... 60 4 2 480 State Animal Health Officials subtotal ...... 480 Current Participants:. Service Log ...... 150 260 .25 9750 Feedback Survey ...... 50 1 .33 16.5 Close-out Report ...... 50 1 .33 16.5 Current Participants subtotal ...... 9783 Employers: Employer Feedback ...... 30 1 .25 7.5 Employer subtotal ...... 7.5 Past Participants: Post-Award Termination Survey ...... 150 1 .25 37.5 Past Participants subtotal ...... 37.5

Grand Total ...... 11,658

Comments: Comments are invited on: Done at Washington, DC, this 27th day of laborers and for the purchase and (a) Whether the proposed record June, 2019. substantial rehabilitation of non-FLH keeping requirement and collection of Steve Censky, property. The intended purpose of the information are necessary for the proper Deputy Secretary, U.S. Department of loans and grants is to increase the performance of the functions of the Agriculture. number of available housing units for Agency, including whether the [FR Doc. 2019–14387 Filed 7–5–19; 8:45 am] domestic farm laborers. This Notice information will have practical utility; BILLING CODE 3410–22–P describes the method used to distribute (b) the accuracy of the Agency’s funds, the application process, and estimate of the burden of the proposed submission requirements. collection of information; (c) ways to DEPARTMENT OF AGRICULTURE The amount of funding available can enhance the quality, utility, and clarity be found at the following link: https:// of the information to be collected; and Rural Housing Service www.rd.usda.gov/newsroom/notices- (d) ways to minimize the burden of solicitation-applications-nosas. Notice of Solicitation of Applications collecting the information on Expenses incurred in developing for Section 514 Farm Labor Housing respondents, including through the use applications will be at the applicant’s Loans and Section 516 Farm Labor of appropriate automated, electronic, risk. Housing Grants for Off-Farm Housing mechanical, or other technological for Fiscal Year 2019 DATES: The agency deadline for receipt collection techniques or other forms of of all applications in response to this information technology. AGENCY: Rural Housing Service, USDA. Notice is 5 p.m., local time to the All responses to this notice will be ACTION: Notice. appropriate Rural Development State summarized and included in the request Office by August 30, 2019. Rural to OMB for approval. All comments will SUMMARY: The Rural Housing Service Development will not consider any become a matter of public record. (RHS) announces the timeframe to application that is received after the Obtaining a Copy of the Information submit pre-applications for Section 514 deadline unless the date and time are Collection: A copy of the information Farm Labor Housing (FLH) loans and extended by another Notice published collection and related instructions may Section 516 FLH grants for the in the Federal Register. Applicants be obtained free of charge by contacting construction of new off-farm FLH units mailing applications must provide Robert Martin as directed above. and related facilities for domestic farm sufficient time to permit delivery on or

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before the deadline. Acceptance by a eligible for preferential tax treatment. availability of funding. The maximum post office or private mailer does not Localities qualify as Opportunity Zones award per selected project may not constitute delivery. Facsimile (FAX) and if they have been nominated for that exceed $3 million (total loan and grant). postage due applications will not be designation by the State and that A State will not receive more than 30 accepted. nomination has been certified by the percent of FLH funding appropriated for Secretary of the U.S. Treasury via his FY 2019, unless there are remaining ADDRESSES: Applicants wishing to delegation of authority to the Internal Section 514 and Section 516 funds after submit an application in response to Revenue Service. See https:// all eligible applications nationwide this Notice must contact the Rural www.irs.gov/newsroom/opportunity- have been funded. In this case, funds Development State Office serving the zones-frequently-asked-questions for will be awarded to the next highest- State of the proposed off-farm FLH more information. ranking eligible applications among all project in order to receive further To focus investments in areas where of the remaining unfunded applications information and copies of the the need for increased prosperity is submitted to the National Office by the application package. You may find the greatest, the Agency will set aside 10 State Offices. The National Office will addresses and contact information for percent of the funds available through allocate the awarded funds to the States each State Office at, http:// this fiscal year’s NOSA for applications for obligation, and the allocation of www.rd.usda.gov/contact-us/state- that will serve persistent poverty these funds may result in a State or offices. Rural Development will date, counties. Persistent poverty counties are States exceeding the 30 percent and time stamp incoming applications areas where at least 20 percent of the limitation. to evidence timely receipt, and will population is living in poverty over the Section 516 off-farm FLH grants may provide the applicant with a written last 30 years (measured by the 1980, not exceed 90 percent of the total acknowledgment of receipt upon 1990, 2000 and 2010 decennial censuses development cost (TDC) of the housing request. and 2007–2011 American Community as defined in 7 CFR 3560.11. Section FOR FURTHER INFORMATION CONTACT: Survey 5-year estimates) according to 514 off-farm labor loans may not exceed Mirna Reyes-Bible, Senior Finance and American Community Survey census the limits set forth in 7 CFR 3560.562(b). Loan Analyst, Preservation and Direct tract data. Information on which If leveraged funds are going to be used Loan Division, STOP 0781 (Room 1263– counties are considered persistent and are in the form of tax credits, the S), USDA Rural Development, 1400 poverty counties can be found through applicant must include in the pre- Independence Avenue SW, Washington, the United States Department of application written evidence that a tax DC 20250–0781, telephone: (202) 720– Agriculture’s (USDA) Economic credit application has been submitted 1753 (this is not a toll-free number), or Research Service (ERS) (http:// and accepted by the Housing Finance via email: [email protected]. ers.usda.gov/). ERS is the main source of Agency (HFA). All applications that receive any leveraged funds must have SUPPLEMENTARY INFORMATION: economic information and research for USDA and a principal agency of the firm commitments in place within 18 Priority Language for Funding U.S. Federal Statistical System located months of the issuance of a ‘‘Notice of Opportunities in Washington, DC. Set-aside funds will Pre-Application Review Action,’’ The Agency encourages applications be awarded in the order of receipt of Handbook Letter 106 (3560). Applicants without written evidence that a tax that will help improve life in rural complete pre-applications. Once the set- credit application has been submitted America. See information on the aside funds are exhausted, any further and accepted by a HFA must certify in Interagency Task Force on Agriculture set-aside applications will be evaluated writing they will apply for tax credits to and Rural Prosperity found at and ranked with the other applications a HFA and obtain a firm commitment www.usda.gov/ruralprosperity. submitted in response to this Notice. If, within 18 months of the issuance of a Applicants are encouraged to consider by September 6, 2019, the Agency does ‘‘Notice of Pre-Application Review projects that provide measurable results not receive enough eligible applications Action.’’ Those applicants that do not in helping rural communities build to fully utilize the 10 percent set aside obtain a firm commitment for tax credits robust and sustainable economies in the service of these areas, the Agency from a HFA within 18 months of the through strategic investments in will award any unused set aside funds issuance of a ‘‘Notice of Pre-Application infrastructure, partnerships and to other eligible applicants. Review Action’’ will be deemed to have innovation. Please note that this Notice Overview an incomplete application and will be of Solicitation Applications (NOSA) notified in writing that funds will be de- does not award points for these Federal Agency: Rural Housing obligated. strategies. Key strategies include: Service. Funding Opportunity Title: Notice of Rental Assistance (RA) and operating • Achieving e-Connectivity for Rural Solicitation Applications for Section assistance will be available for new America 514 Farm Labor Housing Loans and construction in FY 2019. Operating • Developing the Rural Economy Section 516 Farm Labor Housing Grants assistance is explained at 7 CFR • Harnessing Technological Innovation for Off-Farm Housing for Fiscal Year 3560.574 and may be used in lieu of • Supporting a Rural Workforce (FY) 2019. tenant-specific RA in off-farm FLH • Improving Quality of Life Announcement Type: Solicitation of projects that serve migrant farm workers To encourage investments in rural pre-applications from qualified as defined in 7 CFR 3560.11, that are properties, the Agency also will award applicants for FY 2019. financed under Section 514 or Section points to projects located in rural Catalog of Federal Domestic 516(h) of the Housing Act of 1949, as Opportunity Zones where projects Assistance Numbers (CFDA): 10.405 and amended (42 U.S.C. 1484 and 1486(h) should provide measurable results in 10.427. respectively), and otherwise meet the helping communities build robust and requirements of 7 CFR 3560.574. sustainable economies. An Opportunity A. Federal Award Description In order to maximize the use of the Zone is an economically-distressed Pre-applications will only be accepted limited supply of FLH funds, the community where new investments, through the date and time listed in this Agency may contact eligible NOSA under certain conditions, may be Notice. All awards are subject to responses selected for an award in point

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score order starting with the higher Indian tribe, an agency or political Office during the environmental review scores, with proposals to modify the subdivision of a State or local process. transaction’s proportions of grant and Government, or a public agency (such as (e) 7 CFR part 3560, subpart L, loan funds. In addition, if funds remain a housing authority). The applicant regarding the loan and grant authorities after the highest scoring eligible NOSA must be able to contribute at least one- of the off-farm FLH program; responses are selected for awards, we tenth of the TDC. An off-farm labor (f) 7 CFR part 1924, subpart A, may contact those eligible responses not housing loan (514) financed by RHS regarding planning and performing selected for awards, in point score order may be used to meet this requirement. construction and other development; starting with the highest scores, to Limited partnerships in which a general (g) 7 CFR part 1924, subpart C, ascertain whether those respondents partner is a non-profit entity are eligible regarding the planning and performing will accept the remaining funds. for Section 514 loans but are not eligible of site development work; for Section 516 grants. (h) For construction financed with a B. Eligibility Information (b) To be eligible to receive a Section Section 516 grant, the provisions of the 1. Eligibility 514 loan for off-farm FLH, the applicant Davis-Bacon Act (40 U.S.C. 276(a)– 276(a)–5) and implementing regulations Housing Eligibility—housing that is must meet the requirements of 7 CFR published at 29 CFR parts 1, 3, and 5; constructed with FLH loans and/or 3560.555 and be a broad-based non- (i) A check for $24 from the applicant grants must meet Rural Development’s profit organization, including made out to the United States design and construction standards community and Faith-Based Department of Agriculture. This check contained in 7 CFR part 1924, subparts organizations, a non-profit organization will be used to pay for credit reports A and C. Once constructed, off-farm of farm workers, a Federally recognized obtained by the Agency; FLH must be managed in accordance Indian tribe, an agency or political (j) Borrowers and grantees must take with 7 CFR part 3560. In addition, off- subdivision of a State or local reasonable steps to ensure that tenants farm FLH must be operated on a non- Government, a public agency (such as a receive the language assistance profit basis and tenancy must be open housing authority), or a limited necessary to afford them meaningful to all qualified domestic farm laborers, partnership which has a non-profit access to USDA programs and activities, regardless at which farm they work. entity as its general partner, and free of charge. Failure to provide this Section 514(f)(3) of the Housing Act of (i) Be unable to provide the necessary assistance to tenants who can effectively 1949, as amended (42 U.S.C. 1484(f)(3)) housing from its own resources; participate in or benefit from Federally- defines domestic farm laborers to (ii) Evidence that the applicant is assisted programs or activities may include any person regardless of the unable to obtain credit from other violate the prohibition under Title VI of person’s source of employment, who sources. Letters from credit institutions the Civil Rights Act of 1964, 42 U.S.C. receives a substantial portion of his/her which normally provide real estate 2000d et seq. and Title VI regulations income from the primary production of loans in the area should be obtained and against national origin discrimination agricultural or aqua cultural these letters should indicate the rates (k) All other requirements contained commodities in the unprocessed or and terms upon which a loan might be in 7 CFR part 3560, regarding the processed stage, and also includes the provided. (Note: not required from State Sections 514/516 off-farm FLH person’s family. or local public agencies or Indian programs; and Tenant Eligibility—tenant eligibility tribes.) (l) Please note that grant applicants is limited to persons who meet the (iii) Broad-based non-profit must obtain a Dun and Bradstreet Data definition of a ‘‘disabled domestic farm organizations must have a membership Universal Numbering System (DUNS) laborer,’’ or a ‘‘domestic farm laborer,’’ that reflects a variety of interests in the number and maintain registration in the or ‘‘retired domestic farm laborer,’’ as area where the housing will be located. Central Contractor Registration (CCR) defined in Section 514(f)(3) of the 2. Cost Sharing or Matching—Section prior to submitting a pre-application Housing Act of 1949, as amended (42 516 grants for off-farm FLH may not pursuant to 2 CFR 25.200(b). In U.S.C. 1484(f)(3)). exceed 90 percent of the TDC as addition, an entity applicant must Section 514(f)(3)(A) of the Housing provided in 7 CFR 3560.562(c)(1). maintain registration in the CCR Act of 1949 (42 U.S.C. 1484(f)(3)(A)) has 3. Other Requirements—the following database at all times during which it has been amended to extend FLH tenant requirements apply to loans and grants an active Federal award or an eligibility to agricultural workers legally made in response to this Notice: application or plan under consideration admitted to the United States and (a) 7 CFR part 1901, subpart E, by the Agency. Similarly, all recipients authorized to work in agriculture. It is regarding equal opportunity of Federal financial assistance are important to note, that persons admitted requirements; required to report information about legally for agricultural work remain (b) For grants only, 2 CFR parts 200 first-tier sub-awards and executive ineligible for Rental Assistance (RA) as and 400, which establishes the uniform compensation in accordance with 2 CFR set forth in 7 CFR 3560.254(c). In administrative and audit requirements part 170. So long as an entity applicant addition, under no circumstance may for grants and cooperative agreements to does not have an exception under 2 CFR any currently eligible FLH tenants be State and local Governments and to 170.110(b), the applicant must have the displaced from their homes as a result non-profit organizations; necessary processes and systems in of this statutory change. (c) 7 CFR part 1901, subpart F, Applicant Eligibility— regarding historical and archaeological place to comply with the reporting (a) To be eligible to receive a Section properties; requirements should the applicant 516 grant for off-farm FLH, the applicant (d) 7 CFR 1970.11, Environmental receive funding. See 2 CFR 170.200(b). must meet the requirements of 7 CFR review process. Please note, the Agency C. Application and Submission 3560.555 and be a broad-based non- must conclude the environmental Information profit organization, including review process before a FLH award is community and Faith-Based obligated. It is incumbent on an 1. Pre-Application Submission organizations, a non-profit organization applicant to work closely and to The application process will be in two of farm workers, a Federally recognized coordinate with the corresponding State phases: The initial pre-application (or

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proposal) and the submission of a final each electronic device submitted, the 2. Pre-Application Requirements application. Only those pre-applications applicant should include a Table of (a) The pre-application must contain or proposals that are selected for further Contents of all documents and forms on the following: processing will be invited to submit that device. The electronic media (1) A summary page listing the final applications. In the event that a should be submitted to the Rural following items. This information proposal is selected for further Development State Office listed in this should be double-spaced between items processing and the applicant declines, Notice where the property is located. and not be in narrative form. the next highest ranked unfunded pre- Any forms and documents that are not i. Applicant’s name. application will be selected for further sent electronically, including the check ii. Applicant’s Taxpayer Identification processing. All pre-applications for for credit reports, must be mailed to the Number. Sections 514 and 516 funds must be Rural Development State Office. iii. Applicant’s address. filed with the appropriate Rural (b) E-Mail Option. On the Loan iv. Applicant’s telephone number. Development State Office and must Proposal form you will be asked for a v. Name of applicant’s contact person, meet the requirements of this Notice. submission email address. This email telephone number, and address. Incomplete pre-applications will not be address will be used to establish a folder vi. Amount of loan and/or grant reviewed and will be returned to the on the USDA server with your unique requested. applicant. No pre-application will be email address. Once the Loan Proposal vii. For grants of Federal financial accepted after the deadline unless date form is processed, you will receive an assistance (including loans and grants, and time are extended by another Notice additional email notifying you of the cooperative agreements, etc.), the published in the Federal Register. applicant’s DUNS number and Pre-applications can be submitted email address that you can use to email registration in the CCR database in either electronically using the FLH Pre- your forms and documents. Please Note: accordance with 2 CFR part 25. As Application form found at: http:// all forms and documents must be required by OMB, all grant applicants www.rd.usda.gov/programs-services/ emailed from the same submission must provide a DUNS number when farm-labor-housing-direct-loans-grants email address. This will ensure that all applying for Federal grants, on or after or in hard copy to the appropriate Rural forms and documents you send will be October 1, 2003. Organizations can Development Office where the project stored in the folder assigned to that will be located. Follow the link to find email address. Any forms and receive a DUNS number at no cost by the appropriate Rural Development documents that are not sent via the calling the dedicated toll-free number at State Office address for requesting and email option must be submitted on an (866) 705–5711 or via the internet at: submitting a pre-application at: http:// electronic media or in hard copy to the http://www.dnb.com/. Additional www.rurdev.usda.gov/Stateoffice Rural Development State Office. information concerning this Addresses.html. Applicants are strongly (c) Hard Copy Submission to the requirement can be obtained on the encouraged; but not required, to submit Rural Development State Office. If you Grants.gov website at www.grants.gov. the pre-application electronically. The are unable to send the proposal package Similarly, applicants may register for electronic form contains a button electronically using either of the options the CCR at: https://www.uscontractor labeled ‘‘Send Form.’’ By clicking on the listed above, you may send a hard copy registration.com/ or by calling (877) button, the applicant will see an email of all forms and documents to the Rural 252–2700. message window with an attachment Development State Office where the (2) Awards made under this Notice that includes the electronic form the property is located. Hard copy pre- are subject to the provisions contained applicant filled out as a data file with applications received on or before the in the Consolidated Appropriations Act, a .pdf extension. In addition, an auto- deadline will receive the close of 2019 (Pub. L. 116–6) sections 745 and reply acknowledgement will be sent to business time of the day received as the 746 regarding felony convictions and the applicant when the electronic Loan receipt time. Assistance for filing corporate Federal tax delinquencies. To Proposal form is received by the Agency electronic and hard copy pre- comply with these provisions, unless the sender has software that will applications can be obtained from any applicants that are or propose to be block the receipt of the auto-reply email. Rural Development State Office. corporations will submit form AD–3030, The State Office will record pre- ‘‘Representations Regarding Felony For electronic submissions, there is a Conviction and Tax Delinquent Status applications received electronically by time delay between the time it is sent the actual date and time when all for Corporate Applicants,’’ as part of and the time it is received depending on attachments are received at the State their pre-application. Form AD–3030 network traffic. As a result, last-minute Office. can be found here: http:// Submission of the electronic Section submissions sent before the deadline www.ocio.usda.gov/document/ad3030. 514 Loan Proposal form does not date and time could be received after (3) A narrative verifying the constitute submission of the entire the deadline date and time because of applicant’s ability to meet the eligibility proposal package which requires the increased network traffic. requirements stated earlier in this additional forms and supporting Applicants are reminded that all Notice. If an applicant is selected for documentation as listed within this submissions received after the deadline further processing, Rural Development Notice. You may use one of the date and time will be rejected, will require additional documentation following options for submitting the regardless of when they were sent. as set forth in a Conditional entire proposal package comprising of If a pre-application is accepted for Commitment in order to verify the all required forms and documents. On further processing, the applicant must entity has the legal and financial the Loan Proposal form you can indicate submit a complete, final application, capability to carry out the obligation of the option you will be using to submit acceptable to Rural Development prior the loan. each required form and document. to the obligation of Rural Development (4) Standard Form 424, ‘‘Application (a) Electronic Media Option. Submit funds. If the pre-application is not for Federal Assistance,’’ can be obtained all forms and documents as read-only accepted for further processing the at: http://www.grants.gov or from any Adobe Acrobat files on electronic media applicant will be notified of appeal Rural Development State Office listed in such as CDs, DVDs or USB drives. For rights under 7 CFR part 11. Section VII of this Notice.

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(5) For loan pre-applications, current (i) A copy of, or an accurate citation (vii) The applicant must also identify (within 6 months of pre-application to, the special provisions of State or all other sources of funds, including the date) financial statements with the Tribal law under which they are dollar amount, source, and commitment following paragraph certified by the organized, a copy of the applicant’s status. (Note: a Section 516 grant may applicant’s designated and legally charter, Articles of Incorporation, and not exceed 90 percent of the TDC of the authorized signer: by-laws; housing.) ‘‘I/we certify the above is a true and (ii) The names, occupations, and (14) The applicant must submit a accurate reflection of our financial addresses of the applicant’s members, checklist, certification, and signed condition as of the date stated herein. directors, and officers; and affidavit by the project architect or This statement is given for the purpose (iii) If a member or subsidiary of engineer, as applicable, for any energy of inducing the United States of another organization, the organization’s programs the applicant intends to America to make a loan or to enable the name, address, and nature of business. participate in. United States of America to make a (13) A preliminary market survey or (15) The following forms are required: determination of continued eligibility of market study to identify the supply and (i) A prepared HUD Form 935.2A, the applicant for a loan as requested in demand for farm labor housing in the ‘‘Affirmative Fair Housing Marketing the loan application of which this market area. The market area must be Plan (AFHM) Multi-Family Housing,’’ in statement is a part.’’ clearly identified and may include only accordance with 7 CFR 1901.203(c). The (6) For loan pre-applications, a check the area from which tenants can plan will reflect that occupancy is open for $24 from applicants made out to the reasonably be drawn for the proposed to all qualified ‘‘domestic farm United States Department of project. Documentation must be laborers,’’ regardless of which farming Agriculture. This will be used to pay for provided to justify a need within the operation they work and that they will credit reports obtained by Rural intended market area for the housing of not discriminate on the basis of race, Development. domestic farm laborers. The color, sex, age, disability, marital or (7) Evidence that the applicant is documentation must consider disabled familial status or National origin in unable to obtain credit from other and retired farm workers. The regard to the occupancy or use of the sources. Evidence may include but is preliminary survey should address or units. The form can be found at: http:// not limited to a denial from a credit include the following items: portal.hud.gov/hudportal/documents/ (i) The annual income level of institution which normally provide real huddoc?id=935-2a.PDF. farmworker families in the area and the estate loans in the area. (Note: not (ii) A proposed operating budget probable income of the farm workers required from State or local public utilizing Form RD 3560–7, ‘‘Multiple who will likely occupy the proposed agencies or Indian tribes.) Family Housing Project Budget/Utility housing; Allowance,’’ can be found at: http:// (8) If an FLH grant is desired, a (ii) A realistic estimate of the number forms.sc.egov.usda.gov/efcommon/ statement concerning the need for an of farm workers who remain in the area eFileServices/eForms/RD3560-7.PDF. FLH grant. The statement should where they harvest and the number of (iii) An estimate of development cost include preliminary estimates of the farm workers who normally migrate into utilizing Form RD 1924–13, ‘‘Estimate rents required with and without a grant. the area. Information on migratory and Certificate of Actual Cost,’’ can be (9) A statement of the applicant’s workers should indicate the average found at: http://forms.sc.egov.usda.gov/ experience in operating labor housing or number of months the migrants reside efcommon/eFileServices/eForms/ other rental housing. If the applicant’s in the area and an indication of what RD1924-13.PDF. experience is limited, additional type of family groups are represented by (iv) Form RD 3560–30, ‘‘Certification information should be provided to the migrants (i.e., single individuals as of no Identity of Interest (IOI),’’ can be indicate how the applicant plans to opposed to families); found at: http://forms.sc.egov.usda.gov/ compensate for this limited experience (iii) General information concerning efcommon/eFileServices/eForms/ (i.e., obtaining assistance and advice of the type of labor-intensive crops grown RD3560-30.PDF and Form RD 3560–31, a management firm, non-profit group, in the area and prospects for continued ‘‘Identity of Interest Disclosure/ public agency, or other organization demand for farm laborers; Qualification Certification,’’ can be which is experienced in rental (iv) The overall occupancy rate for found at: http://forms.sc.egov.usda.gov/ management and will be available on a comparable rental units in the area and efcommon/eFileServices/eForms/ continuous basis). the rents charged and customary rental RD3560-31.PDF. (10) A brief statement explaining the practices for these units (i.e., will they (v) Form HUD 2530, ‘‘Previous applicant’s proposed method of rent to large families, do they require Participation Certification,’’ can be operation and management (i.e., on-site annual leases, etc.); found at: http://portal.hud.gov/ manager, contract for management (v) The number, condition, adequacy, hudportal/documents/huddoc? services, etc.). As stated earlier in this rental rates and ownership of units id=2530.pdf. Notice, the housing must be managed in currently used or available to farm (vi) If requesting RA or Operating accordance with the program’s workers; Assistance, Form RD 3560–25, ‘‘Initial management regulation, 7 CFR part (vi) A description of the units Request for Rental Assistance or 3560. proposed, including the number, type, Operating Assistance,’’ can be found at: (11) Provide your entity’s projected size, rental rates, amenities such as http://forms.sc.egov.usda.gov/ Return on Investment (ROI) for the carpets and drapes, related facilities efcommon/eFileServices/eForms/ requested funds to demonstrate the such as a laundry room or community RD3560-25.PDF. effectiveness and efficiency of your room and other facilities providing (vii) Form RD 400–4, ‘‘Assurance proposal. Please include the supportive services in connection with Agreement,’’ can be found at: http:// methodology and assumptions you used the housing and the needs of the forms.sc.egov.usda.gov/efcommon/ in the ROI calculation. Also include a prospective tenants such as a health eFileServices/eForms/RD400-4.PDF. detailed examination of outputs and clinic or day care facility, estimated (viii) Evidence of compliance with outcomes. development timeline, estimated TDC, Executive Order 12372. The applicant (12) Applicants must also provide: and applicant contribution; and must send a copy of Form SF–424,

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‘‘Application for Federal Assistance,’’ to intent from service providers are D. Pre-Application Review Information the applicant’s State clearinghouse for acceptable documentation at the pre- intergovernmental review. If the application stage. RA may not fund a 1. Selection Criteria. Section 514 FLH applicant is located in a State that does direct service provision. loan funds and Section 516 FLH grant not have a clearinghouse, the applicant (xii) A Sources and Uses Statement funds will be distributed to States based is not required to submit the form. which shows all sources of funding on a national competition, as follows: Applications from Federally recognized included in the proposed project. The (a) Rural Development State Office Indian tribes are not subject to this terms and schedules of all sources will accept, review, and score pre- requirement. included in the project should be applications in accordance with this (ix) Evidence of site control, such as included in the Sources and Uses Notice. an option contract or sales contract. In Statement. addition, a map and description of the (xiii) A separate one-page information (1) Points will be allocated for proposed site, including the availability sheet listing each of the ‘‘Pre- applications that leverage other funds of water, sewer, and utilities and the Application Scoring Criteria,’’ contained based on the leverage funds percentage proximity to community facilities and in this Notice, followed by a reference of RD’s total investment. This is services such as shopping, schools, to the page numbers of all relevant calculated as follows: transportation, doctors, dentists, and material and documentation that is Rural Development Leverage funds hospitals. contained in the proposal that supports equals the sum of all permanent third- (x) Preliminary plans and the criteria. Applicants are encouraged, party project investments plus Rural specifications, including plot plans, but not required, to include a checklist Development’s allowed value of building layouts, and type of of all of the pre-application construction and materials. The housing requirements and to have their pre- donated land. The value of the donated must meet Rural Development’s design application indexed and tabbed to land will be calculated in accordance and construction standards contained in facilitate the review process. with Rural Development’s Handbook 7 CFR part 1924, subparts A and C and (xvi) Evidence of compliance with the HB–1–3560. The amount of permanent must also meet all applicable Federal, requirements of the applicable State third-party project investments is State, and local accessibility standards. Housing Preservation Office (SHPO), limited to third-party funds from equity, (xi) A supportive services plan, which and/or Tribal Historic Preservation grants, loans, and deferred developer describes services that will be provided Officer (THPO). A letter from the SHPO fees. To obtain the percentage from on-site or made available to tenants and/or THPO where the off-farm FLH which the leverage points are derived, through cooperative agreements with project is located, signed by their this leverage fund amount is divided by service providers in the community, designee will serve as evidence of Rural Development’s investment, which such as a health clinic or day care compliance. equals the total amount of approved facility. Off-site services must be (xv) Environmental information in Section 516 grants and/or Section 514 accessible and affordable to farm accordance with the requirements in 7 loans. For example: workers and their families. Letters of CFR 1970.

The score points for leverage in this demonstrating the availability of savings Per-unit cost savings Points section will be calculated by for 5 years. To calculate the savings, multiplying the leverage percentage by take the total amount of savings and Above $15,000 ...... 50 10. Using the above percentage, this divide it by the number of units in the $10,001–$15,000 ...... 35 $7,501–$10,000 ...... 20 would be 516.67 percent (or 5.1667) × project that will benefit from the savings 10, which equates to 51.67 score points $5,001–$7,500 ...... 15 to obtain the per-unit cost savings. For $3,501–$5,000 ...... 10 for leverage. non-Rural Development tenant subsidy, $2,001–$3,500 ...... 5 A score point for leverage of more if the value changes during the 5-year $1,000–$2,000 ...... 2 than zero but less than one will be calculation, the applicant must use the rounded to one (1) point. A score point lower of the non-Rural Development The Agency will not be providing for leverage of zero or less will not tenant subsidy to calculate per-unit cost excess assistance to the project. This is receive any points. There is no savings. For example, a 10-unit property determined by conducting a subsidy maximum amount of score points for with 100 percent designated farm labor layering review at this stage, and then leverage. All score points for leverage housing units receiving $20,000 per year again at Stage 2 of the loan origination will be rounded to two decimal places. non-Rural Development subsidy yields a process. Paragraph 4.19 of the USDA (2) The presence of operational cost cost savings of $100,000 ($20,000 × 5 Multi-Family Housing Loan Origination savings, such as tax abatements, non- years); resulting to a $10,000 per-unit Handbook (HB–1–3560) provides details Rural Development tenant subsidies or cost savings ($100,000/10 units). on the subsidy layering review process. donated services are calculated on a per- A subsidy layering review will be unit cost savings for the sum of the Use the following table to apply required prior to funding. savings. Savings must be available for at points: (3) Ten (10) points will be awarded to least 5 years and documentation must projects in Opportunity Zones. An be provided with the application Opportunity Zone is an economically-

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distressed community where new under the energy generation category • LEED for Homes program by the investments, under certain conditions, must include calculations of savings of United States Green Building Council may be eligible for preferential tax energy. Compare property energy usage (USGBC): http://www.usgbc.org. treatment. Localities qualify as of three scenarios: (1) Property built to —Certified Level (2 points), OR Opportunity Zones if they have been required code of State with no —Silver Level (4 points), OR nominated for that designation by the renewables, to (2) property as-designed —Gold Level (6 points), OR State and that nomination has been with commitments to stated energy —Platinum Level (8 points) certified by the Secretary of the U.S. conservation programs without the use Applicant must state the level of Treasury via his delegation of authority of renewables and (3) property as- certification that the applicant’s plans to the Internal Revenue Service. See designed with commitments to stated will achieve in their certification in its https://www.irs.gov/newsroom/ energy conservation programs and the pre-application. opportunity-zones-frequently-asked- use of proposed renewables. Use local questions for more information. average metrics for weather and utility OR (4) Points will be allocated for the costs and detail savings in kWh and • Home Innovation’s and The presence of tenant services. Two (2) dollars. Provide payback calculations. National Association of Home Builders points will be awarded for each resident These calculations must be done by a (NAHB) ICC 700 National Green service included in the tenant services licensed engineer or credentialed Building Standard TM: http:// plan up to a maximum of 10 points. renewable energy provider. Include www.nahb.org/. Plans must detail how the services are with application, the provider/ —Green-Bronze Level (2 points), OR to be administered, who will administer engineer’s credentials including —Silver Level (4 points), OR them, and where they will be qualifications, recommendations, and —Gold Level (6 points), OR administered. All tenant service plans proof of previous work. The checklist, —Emerald Level (8 points) must include letters of intent that affidavit, calculations, and Applicant must state the level of clearly state the service that will be qualifications of engineer/energy certification that the applicant’s plans provided at the project for the benefit of provider must be submitted together will achieve in their certification in its the residents from any party with the loan application. pre-application. administering each service, including Enrollment in EPA Portfolio Manager AND the applicant. These services may Program. All projects awarded scoring • Participation in the Department of include, but are not limited to, points for energy initiatives must enroll Energy’s Zero Energy Ready program. (2 transportation related services, on-site the project in the EPA Portfolio Manager points) http://www.energy.gov/eere/ English as a Second Language classes, program to track post-construction buildings/zero-energy-ready-home. move-in funds, emergency assistance energy consumption data. More funds, homeownership counseling, food information about this program may be AND pantries, after school tutoring, and found at: http://www.energystar.gov/ • Participation in local green/energy computer learning centers. RA may not buildings/facility-owners-and- efficient building standards. Applicants be used to pay for these services. managers/existing-buildings/use- who participate in a city, county or (5) Points will be allocated for Energy portfolio-manager. municipality program (2 points). initiatives (the aggregate points for all (i) Energy Conservation for New (ii) Energy Conservation for the Energy Initiative categories may not Construction or Purchase and Rehabilitation. Pre-applications for the exceed 20 points). Rehabilitation of an Existing Non-Farm purchase and rehabilitation of non- Properties may receive points for Labor Housing Building. Projects may program MFH and related facilities in energy initiatives in the categories of be eligible for scoring points when the rural areas may be eligible for scoring energy conservation, energy generation, pre-application includes a written points when the pre-application water conservation and green property certification by the applicant to includes a written certification by the management. Depending on the scope of participate and achieve certification in applicant to participate in one of the work, properties may earn ‘‘energy the following energy efficiency following energy efficiency programs. initiative’’ points in either one of two programs. Again, the certification must be categories: (1) New Construction or (2) The points will be allocated as accompanied by a signed affidavit by Purchase and Rehabilitation of an follows: the project architect or engineer stating Existing Non-Farm Labor Housing • Participation in the EPA’s Energy that the goals are achievable. Points will Building. Projects will be eligible for Star for Homes V3 program. (2 points) be award as follows: one category of the two, but not both. http://www.energystar.gov/index.cfm? • Energy programs including Council’s Participation in the Green c=bldrs_lenders_raters.pt_bldr. Leadership in Energy and Communities program by the Enterprise Environmental Design (LEED) for OR Community Partners (3 points) http:// • Homes, Green Communities, etc., will Participation in the Green www.enterprisecommunity.com/ each have an initial checklist indicating Communities program by the Enterprise solutions-and-innovation/enterprise- prerequisites for participation in its Community Partners. (4 points) http:// green-communities. At least 30 percent energy program. The applicable energy www.enterprisecommunity.com/ of the points needed to qualify for the program checklist will establish solutions-and-innovation/enterprise- Green Communities program must be whether prerequisites for the energy green-communities. earned under the Energy Efficiency program’s participation will be met. All OR section of Green Communities. checklists must be accompanied by a • Participation in one of the following AND signed affidavit by the project architect two programs will be awarded points for • Participation in local green/energy or engineer stating that the goals are certification. efficient building standards. Applicants achievable, and the project has been Note: Each program has four levels of who participate in a city, county or enrolled in these programs if enrollment certification. State the level of certification municipality program (2 points). The is applicable to that program. In that the applicant plans will achieve in their applicant should be aware of and look addition, projects that apply for points certification: for additional requirements that are

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sometimes embedded in the third-party Credentialing can be obtained from the whose principal purposes include low- program’s rating and verification National Apartment Association (NAA), income housing that meet the systems. National Affordable Housing conditions of § 3560.55(c), and the (iii) Energy Generation. Pre- Management Association, The Institute following conditions: applications for new construction or for Real Estate Management, U.S. Green • Is exempt from Federal income purchase and rehabilitation of non- Building LEED for Operations and taxes under section 501(c)(3) or program multi-family projects which Maintenance, or another source with a 501(c)(4) of the Internal Revenue participate in the above-mentioned certifiable credentialing program. Service code; programs and receive scoring points for Credentialing must be illustrated in the • Is not wholly or partially owned or installation of on-site renewable energy resume(s) of the property management controlled by a for-profit or limited- sources. Energy analysis of preliminary team and included with the pre- profit type entity; building plans using industry- application. • Whose members, or the entity, do recognized simulation software must not share an identity of interest with a E. Federal Award Administration document the projected total energy for-profit or limited-profit type entity; Information • consumption of all of the building Is not co-venturing with another components and building site usage. 1. Federal Award Notices entity; and • The entity or its members will not Projects with an energy analysis of the Applicants must submit their pre- preliminary or rehabilitation building be receiving any direct or indirect applications by the due date specified in benefits pursuant to Low Income plans that propose a 10 percent to 100 this Notice. Once the pre-applications percent energy generation commitment Housing Tax Credits. have been scored and ranked by the If after all of the above evaluations are (where generation is considered to be State Office, the pre-applications must the total amount of energy needed to be completed there are two or more pre- be reviewed and concurred with for applications that have the same score, generated on-site to make the building funding by the National Office. The a net-zero consumer of energy) will be and all cannot be funded, a lottery will National Office will rank by score, be used to break the tie. The lottery will awarded points as follows: highest to lowest, eligible pre- • consist of the names of each application 0 to 9 percent commitment to energy applications approved by State Offices. with equal scores printed onto a same generation—0 points Based on available funding and the 30 • size piece of paper, which will then be 10 to 20 percent commitment to percent limitation per State, the placed into a receptacle that fully energy generation—1 point National Office will determine which • obstructs the view of the names. The 21 to 40 percent commitment to pre-applications can be funded starting Director of the Preservation and Direct energy generation—2 points with the highest scoring pre-application. Loan Division, in the presence of two • 41 to 60 percent commitment to Thereafter, the National Office will witnesses, will draw a piece of paper energy generation—3 points notify the State Offices of pre- from the receptacle. The name on piece • 61 to 80 percent commitment to applications it concurred with for of paper drawn will be the applicant to energy generation—4 points funding and further processing. Upon • be funded. 81–100 percent or more commitment National Office notification, State If insufficient funds or RA remain for to energy generation—5 points Offices will notify applicants with pre- the next ranked proposal, that applicant Projects may participate in Power applications found eligible and selected will be given a chance to modify their Purchase Agreements or Solar Leases to for further processing. The selected pre-application to bring it within the achieve their on-site renewable energy applicants must submit a final remaining available funding. This will generation goals provided that the application to their respective State be repeated for each next ranked eligible financial obligations of the lease/ Offices as soon as possible, but no later proposal until an award can be made or purchase agreements are clearly than 90 calendar days from the date of the list is exhausted. documented and included in the the selection letter (deadline). The State application, and qualifying ratios Office will deem an application not 2. Administrative and National Policy continue to be achieved. submitted on or before the deadline All FLH loans and grants are subject An additional 1 point will be awarded incomplete and a withdrawal by the to the restrictive-use requirements for off-grid systems, or elements of applicant from consideration under this contained in 7 CFR 3560.72(a) (2). systems, provided that at least 5 percent Notice. The applicant may re-submit its 3. Reporting of on-site renewable system is off-grid. pre-application under a subsequent See www.dsireusa.org for State and local Notice. Borrowers must maintain separate specific incentives and regulations of Pre-applications will be notified if financial records for the operation and energy initiatives. there are insufficient funds available for maintenance of the project and for (iv) Water Conservation in Irrigation the proposal and such notification is not tenant services. Tenant services will not Measures. Projects may be awarded 1 appealable. be funded by Rural Development. Funds point for the use of an engineered Pre-applications found ineligible, allocated to the operation and recycled water (gray water or storm State Offices will send notices of maintenance of the project may not be water) for landscape irrigation covering ineligibility that provide appeal rights used to supplement the cost of tenant 50 percent or more of the property’s site under 7 CFR part 11, as appropriate. services, nor may tenant service funds landscaping needs. The National Office will rank all pre- be used to supplement the project (v) Property Management Credentials. applications nationwide and distribute operation and maintenance. Detailed Projects may be awarded 1 point if the funds to States in rank order, within financial reports regarding tenant designated property management funding and RA limits. When proposals services will not be required unless company or individuals that will have an equal score and not all pre- specifically requested by Rural assume maintenance and operations applications can be funded, preference Development, and then only to the responsibilities upon completion of will be given first to Indian tribes as extent necessary for Rural Development construction work have a Credential for defined in § 3560.11, then local non- and the borrower to discuss the Green Property Management. profit organizations or public bodies affordability (and competitiveness) of

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the service provided to the tenant. The ineligibility and provide appeal rights deadline. Form RD 1940–1, ‘‘Request for project audit, or verification of accounts under 7 CFR part 11. Obligation of Funds’’, should refer to on Form RD 3560–10, ‘‘Borrower • State Offices will issue letters of assistance codes ‘‘322’’ for loans and Balance Sheet,’’ together with an condition and state when acceptance ‘‘323’’ for grants. When obligating funds, accompanying Form RD 3560–7, must be returned by applicant. the estimated development costs must ‘‘Multiple Family Housing Project be entered into the Automated Multi- Preliminary Eligibility Assessment Budget Utility Allowance,’’ must Family Housing Accounting System allocate revenue and expense between The State Office shall make a (AMAS) using the M5V screen. Once project operations and the service preliminary eligibility assessment using construction is completed, the actual component. the following criteria: development costs must be entered into 1. The pre-application was received AMAS using the M5VA screen. F. Guidance to Agency Staff for by the submission deadline specified in Guidance can be found in Chapter 2 of Processing Section 514/516 Farm Labor the NOSA; the AMAS manual (Stock #66, pages 9– Housing (FLH) New Construction Loan 2. The pre-application is complete as 15). and Grant Requests specified by the NOSA; Questions regarding this letter may be General Processing Guidelines 3. The applicant is an eligible entity directed to Mirna Reyes-Bible of the and is not currently debarred, Multi-Family Housing Preservation and Submitted applications should be suspended, or delinquent on any Direct Loan Division, at (202) 720–1753. reviewed for completeness using the Federal debt; and requirements listed in this NOSA. 4. The proposal is for authorized G. Equal Opportunity and Non- Complete applications received by the purposes. Discrimination Requirements deadline listed in this NOSA will be In accordance with Federal civil reviewed and scored based upon the Final Applications rights law and United States Department factors listed therein by Agency staff. The National Office will notify the of Agriculture (USDA) civil rights States Offices that need assistance with State Offices which pre-applications regulations and policies, the USDA, its the review or the processing of FLH pre- have been selected for further Agencies, offices, and employees, and applications should contact Mirna processing. State Offices should then institutions participating in or Reyes-Bible of the Multi-Family follow Chapter 5 of HB–1–3560 for the administering USDA programs are Housing Preservation and Direct Loan processing of final applications. Final prohibited from discriminating based on Division’s Farm Labor Housing Program applicants will need to follow the race, color, national origin, religion, sex, at (202) 720–1753 or at bidding process as set forth in 7 CFR gender identity (including gender [email protected]. part 1924. expression), sexual orientation, The following are tasks that will be Equal Opportunity Survey disability, age, marital status, family/ completed by Agency staff: parental status, income derived from a • State Offices will conduct the site State Offices should provide applicants the voluntary OMB 1890– public assistance program. Political visit and conduct the environmental beliefs, or reprisal or retaliation for prior review, and civil rights impact analysis. 0014 form, ‘‘Survey on Ensuring Equal Opportunity for Applicants’’, (or other civil rights activity, in any program or States Offices should refer to the 7 CFR activity conducted or funded by USDA part 1970 Instructions for guidance on forms currently being used by Rural Development) and ask the applicant to (not all bases apply to all programs). how to conduct environmental reviews. Remedies and complaint filing RD Instructions for 7 CFR part 1970 can complete it and return it to the State Office. deadlines vary by program or incident. be found at: https://www.rd.usda.gov/ Persons with disabilities who require publications/regulations-guidelines/ Substantial Portion of Income From alternative means of communication for instructions. Farm Labor program information (e.g., Braille, large • State Offices will conduct The NOSA restates the requirement print, audiotape, American Sign preliminary eligibility assessment on that domestic farm laborers must receive Language, etc.) should contact the each application received. Based on the a substantial portion of their income responsible Agency or USDA’s TARGET preliminary eligibility, feasibility from ‘‘farm labor’’. Further explanation Center at (202) 720–2600 (voice and review, and application scoring, State of this requirement can be found in the TTY) or contact USDA through the Offices fax or email a final list of their regulation at 7 CFR 3560.576(b)(2) and Federal Relay Service at (800) 877–8339. scored and ranked pre-applications and Chapter 6, attachment 6–H of HB–2– Additionally, program information may a copy of the preliminary market study 3560. The term ‘‘farm labor’’ is defined be made available in languages other submitted by the applicant to the at 7 CFR 3560.11 and further than English. National Office. clarification is provided by Chapter 12, To file a program discrimination • The State Office will include in the Attachment 12–A-of HB–1–3560. complaint, complete the USDA Program National Office list every pre- Discrimination Complaint Form, AD– application determined incomplete or Obligation of funds and Documentation 3027, found online at: http:// ineligible along with the reason for that of Underwriting and Costs www.ascr.usda.gov/complaint_filing_ determination, and receive National All loan requests must be analyzed at cust.html, and at any USDA office or Office concurrence, prior to notifying the feasibility stage and again prior to write a letter addressed to USDA and the applicant. Pre-applications will be obligation to determine the minimum provide in the letter all of the notified by the State Office if there are amount of assistance that is needed for information requested in the form. To insufficient funds available for the the proposal. The Multi-Family Housing request a copy of a complaint form, call, proposal and such notification is not Underwriting Request Form considers (866) 632–9992. Submit your completed appealable. The Agency will notify the the sources and uses of all assistance form or letter to USDA by: applicants of their ability to challenge proposed, i.e., all loans, grants, equity, (1) Mail: United States Department of the lack of appealability decision. State and any other assistance. State Offices Agriculture, Office of the Assistant Offices will send all other notices of must obligate funds by the announced Secretary for Civil Rights, 1400

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Independence Avenue SW, Washington, Members of the public are invited to to be exported from the United States to DC 20250–9410; make statements during the open Germany gas turbine parts, with (2) Fax: (202) 690–7442; or comment period of the meetings or knowledge and reason to know that (3) Email at: program.intake@ submit written comments. The such goods were intended specifically usda.gov. comments must be received in the for re-exportation, directly and USDA is an equal opportunity regional office approximately 30 days indirectly, to Iran, without having first provider, employer, and lender. after each scheduled meeting. Written obtained the required authorization Bruce W. Lammers, comments may be mailed to the from the U.S Department of the Treasury’s Office of Foreign Assets Administrator, Rural Housing Service. Midwest Regional Office, U.S. Commission on Civil Rights, 230 S Control. Tepper was sentenced to 24 [FR Doc. 2019–14390 Filed 7–5–19; 8:45 am] Dearborn Street, Suite 2120, Chicago, IL months in prison, a fine of $5,000, and BILLING CODE 3410–XV–P 60604, faxed to (312) 353–8324, or an assessment of $400. emailed to David Barreras at dbarreras@ The Export Administration usccr.gov. Persons who desire Regulations (‘‘EAR’’ or ‘‘Regulations’’) COMMISSION ON CIVIL RIGHTS additional information may contact the are administered and enforced by the Midwest Regional Office at (312) 353– U.S. Department of Commerce’s Bureau Notice of Public Meetings of the New of Industry and Security (‘‘BIS’’).1 York Advisory Committee 8311. Records and documents discussed Section 766.25 of the Regulations AGENCY: Commission on Civil Rights. during the meeting will be available for provides, in pertinent part, that the ACTION: Announcement of meetings. public viewing as they become available ‘‘Director of [BIS’s] Office of Exporter at https://database.faca.gov/committee/ Services, in consultation with the SUMMARY: Notice is hereby given, meetings.aspx?cid=265; click the Director of [BIS’s] Office of Export pursuant to the provisions of the rules ‘‘Meeting Details’’ and ‘‘Documents’’ Enforcement, may deny the export and regulations of the U.S. Commission links. Records generated from this privileges of any person who has been on Civil Rights (Commission), and the meeting may also be inspected and convicted of a violation of . . . the Federal Advisory Committee Act reproduced at the Eastern Regional International Emergency Economic (FACA), that a meeting of the New York Office, as they become available, both Powers Act (50 U.S.C 1701–1706).’’ 15 Advisory Committee to the Commission before and after the meetings. Persons CFR 766.25(a). The denial of export will convene by conference call at 12:00 interested in the work of this advisory privileges under this provision may be p.m. (EST) on: Friday, July 12, 2019. committee are advised to go to the for a period of up to 10 years from the The purpose of the meeting is to discuss Commission’s website, www.usccr.gov, date of the conviction. 15 CFR testimony received at the hearing or to contact the Midwest Regional 766.25(d).2 In addition, pursuant to regarding Education Funding in New Office at the above phone numbers, Section 750.8 of the Regulations, BIS’s York. email or street address. Office of Exporter Services may revoke any BIS-issued licenses in which the DATES: Friday, July 12, 2019 at 12:00 Agenda person had an interest at the time of his/ p.m. EST. 3 Friday, July 12, 2019 her conviction. FOR FURTHER INFORMATION CONTACT: BIS has received notice of Tepper’s • David Barreras, at [email protected] Open—Roll Call conviction for violating IEEPA, and has or by phone at 312–353–8311. • Discussion of testimony—hearing on SUPPLEMENTARY INFORMATION: Education Funding 1 The Regulations are currently codified in the • Open Comment Code of Federal Regulations at 15 CFR parts 730– Public Call-In Information: • Conference call-in number: 1–800–353– Next Steps 774 (2019). The Regulations originally issued under • Adjourn the Export Administration Act of 1979, as amended, 6461 and conference ID# 4613655. 50 U.S.C. 4601–4623 (Supp. III 2015) (‘‘EAA’’), Interested members of the public may Dated: July 1, 2019. which lapsed on August 21, 2001. The President, listen to the discussion by calling the David Mussatt, through Executive Order 13,222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been following toll-free conference call-in Supervisory Chief, Regional Programs Unit. extended by successive Presidential Notices, the number: 1–800–353–6461 and [FR Doc. 2019–14386 Filed 7–5–19; 8:45 am] most recent being that of August 8, 2018 (83 FR conference ID# 4613655. Please be BILLING CODE P 39,871 (Aug. 13, 2018)), continued the Regulations advised that before placing them into in full force and effect under the International Emergency Economic Powers Act, 50 U.S.C. 1701, the conference call, the conference call et seq. (2012) (‘‘IEEPA’’). On August 13, 2018, the operator will ask callers to provide their DEPARTMENT OF COMMERCE President signed into law the John S. McCain names, their organizational affiliations National Defense Authorization Act for Fiscal Year (if any), and email addresses (so that 2019, which includes the Export Control Reform Bureau Of Industry And Security Act of 2018, Title XVII, Subtitle B of Public Law callers may be notified of future 115–232, 132 Stat. 2208 (‘‘ECRA’’). While Section meetings). Callers can expect to incur Order Denying Export Privileges 1766 of ECRA repeals the provisions of the EAA charges for calls they initiate over (except for three sections which are inapplicable wireless lines, and the Commission will In the Matter of: Olaf Tepper, Inmate here), Section 1768 of ECRA provides, in pertinent Number: 25093–052, Moshannon Valley part, that all rules and regulations that were made not refund any incurred charges. Callers or issued under the EAA, including as continued will incur no charge for calls they Correctional Institution, 555 Geo Drive, in effect pursuant to IEEPA, and were in effect as initiate over land-line connections to Philipsburg, PA 16866. of ECRA’s date of enactment (August 13, 2018), the toll-free conference call-in number. On August 3, 2018, in the U.S. District shall continue in effect according to their terms until modified, superseded, set aside, or revoked Persons with hearing impairments Court for the Northern District of New through action undertaken pursuant to the authority may also follow the discussion by first York, Olaf Tepper (‘‘Tepper’’) was provided under ECRA. calling the Federal Relay Service at 1– convicted of violating the International 2 See also Section 11(h) of the EAA, 50 U.S.C. 800–977–8339 and providing the Emergency Economic Powers Act (50 4610(h) (Supp. III 2015); Sections 1760(e) and 1768 of ECRA, Title XVII, Subtitle B of Public Law 115– operator with the toll-free conference U.S.C § 1701, et seq. (2012)) (‘‘IEEPA’’). 232, 132 Stat. 2208, 2225 and 2233 (Aug. 13, 2018); call-in number: 1–800–353–6461 and Specifically, Tepper was convicted of and note 1, supra. conference ID# 4613655. willfully conspiring to export and cause 3 See notes 1 and 2, supra.

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provided notice and an opportunity for transaction whereby the Denied Person DEPARTMENT OF COMMERCE Tepper to make a written submission to acquires or attempts to acquire such BIS, as provided in Section 766.25 of ownership, possession or control; International Trade Administration the Regulations. BIS has received a two- C. Take any action to acquire from or page submission from Tepper. District Export Council Nomination Based upon my review of the record, to facilitate the acquisition or attempted Opportunity acquisition from the Denied Person of including Tepper’s submission and the AGENCY: International Trade facts available to BIS, and my any item subject to the Regulations that has been exported from the United Administration, Department of consultations with BIS’s Office of Commerce. Export Enforcement, including its States; ACTION: Notice of opportunity for Director, I have decided to deny D. Obtain from the Denied Person in appointment to serve as a District Tepper’s export privileges under the the United States any item subject to the Export Council member. Regulations for a period of 10 years from Regulations with knowledge or reason the date of Tepper’s conviction. I have to know that the item will be, or is SUMMARY: The Department of Commerce also decided to revoke all BIS-issued intended to be, exported from the is currently seeking nominations of licenses in which Tepper had an United States; or individuals for consideration for interest at the time of his conviction. appointment by the Secretary of Accordingly, it is hereby ordered: E. Engage in any transaction to service Commerce to serve as members of one First, from the date of this Order until any item subject to the Regulations that of the 61 District Export Councils August 3, 2028, Olaf Tepper with a last has been or will be exported from the (DECs) nationwide. DECs are closely known address of Inmate Number: United States and which is owned, affiliated with the U.S. Export 25093–052, Moshannon Valley possessed or controlled by the Denied Assistance Centers (USEACs) of the U.S. Correctional Institution, 555 Geo Drive, Person, or service any item, of whatever and Foreign Commercial Service Philipsburg, PA 16866, and when acting origin, that is owned, possessed or (US&FCS), and play a key role in the for or on his behalf, his successors, controlled by the Denied Person if such planning and coordination of export assigns, employees, agents or service involves the use of any item activities in their communities. representatives (‘‘the Denied Person’’), subject to the Regulations that has been DATES: Nominations for individuals to a may not, directly or indirectly, or will be exported from the United DEC must be received by the local participate in any way in any States. For purposes of this paragraph, USEAC Director by 5:00 p.m. local time transaction involving any commodity, servicing means installation, on August 10, 2019. software or technology (hereinafter maintenance, repair, modification or ADDRESSES: Contact the Director of your collectively referred to as ‘‘item’’) testing. local USEAC for information on how to exported or to be exported from the Third, after notice and opportunity for submit your nomination on-line. You United States that is subject to the may identify your local USEAC by Regulations, including, but not limited comment as provided in Section 766.23 of the Regulations, any other person, entering your zip code online at http:// to: export.gov/usoffices/index.asp. A. Applying for, obtaining, or using firm, corporation, or business FOR FURTHER INFORMATION CONTACT: any license, license exception, or export organization related to Tepper by control document; ownership, control, position of Please use the information listed in the B. Carrying on negotiations responsibility, affiliation, or other ADDRESSES section to contact the concerning, or ordering, buying, connection in the conduct of trade or Director of your local USEAC for more information on DECs and the receiving, using, selling, delivering, business may also be made subject to nomination process. For general storing, disposing of, forwarding, the provisions of this Order in order to program information, contact Laura transporting, financing, or otherwise prevent evasion of this Order. servicing in any way, any transaction Barmby, National DEC Liaison, Fourth, in accordance with Part 756 of involving any item exported or to be US&FCS, at (202) 482–2675. exported from the United States that is the Regulations, Tepper may file an SUPPLEMENTARY INFORMATION: District subject to the Regulations, or engaging appeal of this Order with the Under Export Councils support the mission of in any other activity subject to the Secretary of Commerce for Industry and US&FCS by facilitating the development Regulations; or Security. The appeal must be filed of an effective local export assistance C. Benefitting in any way from any within 45 days from the date of this network, supporting the expansion of transaction involving any item exported Order and must comply with the export opportunities for local U.S. or to be exported from the United States provisions of Part 756 of the companies, serving as a communication that is subject to the Regulations, or Regulations. link between the business community from any other activity subject to the Fifth, a copy of this Order shall be and US&FCS, and assisting in Regulations. delivered to Tepper and shall be coordinating the activities of trade assistance partners to leverage available Second, no person may, directly or published in the Federal Register. indirectly, do any of the following: resources. Individuals appointed to a A. Export or reexport to or on behalf Sixth, this Order is effective DEC become part of a select corps of of the Denied Person any item subject to immediately and shall remain in effect trade professionals dedicated to the Regulations; until August 3, 2028. providing international trade leadership B. Take any action that facilitates the Issued this 28th day of June, 2019. and guidance to the local business acquisition or attempted acquisition by community and assistance to the Karen H. Nies-Vogel, the Denied Person of the ownership, Department of Commerce on export possession, or control of any item Director, Office of Exporter Services. development issues. subject to the Regulations that has been [FR Doc. 2019–14434 Filed 7–5–19; 8:45 am] Nomination Process: Each DEC has a or will be exported from the United BILLING CODE P maximum membership of 35. States, including financing or other Approximately half of the positions are support activities related to a open on each DEC for the four-year term

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that begins on January 1, 2020, and runs and associations. Membership should Atmospheric Administration (NOAA), through December 31, 2023. All reflect the diversity of the local business Commerce. potential nominees must complete an community, encompass a broad range of ACTION: Notice; Issuance of an Incidental online nomination form and consent to businesses and industry sectors, and be Harassment Authorization. sharing of the information on that form distributed geographically across the with the DEC Executive Committee for DEC service area. SUMMARY: In accordance with the its consideration, and consent, if For current DEC members seeking regulations implementing the Marine appointed, to sharing of their contact reappointment, the local USEAC Mammal Protection Act (MMPA) as information with other agencies and Director, in consultation with the DEC amended, notification is hereby given organizations with a focus on trade. Executive Committee, also carefully that NMFS has issued an incidental Eligibility and Appointment Criteria: considers the nominee’s activity level harassment authorization (IHA) to the Appointment is based upon an during the previous term and U.S. Fish and Wildlife Service (USFWS) individual’s international trade demonstrated ability to work to incidentally harass, by Level B leadership in the local community, cooperatively and effectively with other harassment only, marine mammals ability to influence the local DEC members and US&FCS staff. As during biological research, monitoring, environment for exporting, knowledge appointees of the Secretary of and maintenance activities at the of day-to-day international operations, Commerce in high-profile positions, Eastern Massachusetts National Wildlife interest in export development, and though volunteers, DEC members are Refuge Complex (Complex). willingness and ability to devote time to expected to actively participate in the DATES: This Authorization is effective DEC activities. Members must be DEC and support the work of local from June 12, 2019 through June 11, employed as exporters or export service US&FCS offices. Those that do not 2020. providers or in a profession which support the work of the office or do not FOR FURTHER INFORMATION CONTACT: supports U.S. export promotion efforts. actively participate in DEC activities Members include exporters, export Amy Fowler, Office of Protected will not be considered for re- Resources, NMFS, (301) 427–8401. service providers and others whose nomination. profession supports U.S. export Electronic copies of the original The Executive Secretary determines application and supporting documents promotion efforts. DEC member which nominees to forward to the appointments are made without regard (including NMFS Federal Register US&FCS Office of U.S. Field for further notices of the original proposed and to political affiliation. DEC membership consideration for recommendation to is open to U.S. citizens and permanent final authorizations, and the previous the Secretary of Commerce in IHA), as well as a list of the references residents of the United States. As consultation with the local DEC representatives of the local exporting cited in this document, may be obtained Executive Committee. A candidate’s online at: https:// community, DEC members must reside background and character are pertinent in, or conduct the majority of their work www.fisheries.noaa.gov/permit/ to determining suitability and eligibility incidental-take-authorizations-under- in, the territory that the DEC covers. for DEC membership. Since DEC DEC membership is not open to federal marine-mammal-protection-act. In case appointments are made by the of problems accessing these documents, government employees. Individuals Secretary, the Department must make a representing foreign governments, please call the contact listed above. suitability determination for all DEC SUPPLEMENTARY INFORMATION: including individuals registered with nominees. After completion of a vetting the Department of Justice under the process, the Secretary selects nominees Background Foreign Agents Registration Act, must for appointment to local DECs. DEC disclose such representation and may be The MMPA prohibits the ‘‘take’’ of members are appointed by and serve at disqualified if the Department marine mammals, with certain the pleasure of the Secretary of determines that such representation is exceptions. Sections 101(a)(5)(A) and Commerce. likely to impact the ability to carry out (D) of the MMPA (16 U.S.C. 1361 et the duties of a DEC member or raise an Authority: 15 U.S.C. 1512 and 4721. seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon appearance issue for the Department. Anthony Diaz, Selection Process: Nominations of request, the incidental, but not Program Analyst, International Trade intentional, taking of small numbers of individuals who have applied for DEC Administration. membership will be forwarded to the marine mammals by U.S. citizens who local USEAC Director for the respective [FR Doc. 2019–14477 Filed 7–5–19; 8:45 am] engage in a specified activity (other than DEC for that Director’s consideration. BILLING CODE 3510–FP–P commercial fishing) within a specified The local USEAC Director ensures that geographical region if certain findings all nominees meet the membership are made and either regulations are DEPARTMENT OF COMMERCE criteria outlined below. The local issued or, if the taking is limited to USEAC Director then, in consultation National Oceanic and Atmospheric harassment, a notice of a proposed with the local DEC Executive Administration incidental take authorization may be Committee, evaluates all nominations to provided to the public for review. determine their interest, commitment, Authorization for incidental takings RIN 0648–XG949 and qualifications. In reviewing shall be granted if NMFS finds that the nominations, the local USEAC Director Takes of Marine Mammals Incidental to taking will have a negligible impact on strives to ensure a balance among Specified Activities; Taking Marine the species or stock(s) and will not have exporters from a manufacturing or Mammals Incidental to National an unmitigable adverse impact on the service industry and export service Wildlife Refuge Complex Research, availability of the species or stock(s) for providers. A fair representation should Monitoring, and Maintenance Activities taking for subsistence uses (where be considered from companies and in Massachusetts relevant). Further, NMFS must prescribe organizations that support exporters, the permissible methods of taking and representatives of local and state AGENCY: National Marine Fisheries other ‘‘means of effecting the least government, and trade organizations Service (NMFS), National Oceanic and practicable adverse impact’’ on the

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affected species or stocks and their determined to be adequate and complete these previous documents, which habitat, paying particular attention to on March 20, 2019. On April 30, 2019, remains applicable to the 2019–2020 rookeries, mating grounds, and areas of NMFS published its notice of proposed IHA. In addition, NMFS has reviewed similar significance, and on the IHA in the Federal Register for public recent draft Stock Assessment Reports, availability of such species or stocks for comment (84 FR 18259). information on relevant Unusual taking for certain subsistence uses Mortality Events (UMEs), and recent Description of the Activity and (referred to in shorthand as scientific literature, to evaluate the Anticipated Impacts ‘‘mitigation’’); and requirements current status of the affected species. pertaining to the mitigation, monitoring The Complex is comprised of eight Since July 2018, elevated numbers of and reporting of such takings are set refuges, including its three coastal harbor seal and gray seal mortalities forth. refuges: Monomoy NWR, Nantucket have occurred across Maine, New We will review all comments NWR, and Nomans Land Island Hampshire, and Massachusetts. This submitted in response to this notice (Nomans) NWR in eastern MA. The event has been declared a UME. prior to concluding our NEPA process USFWS conducts ongoing biological Additionally, seals showing clinical or making a final decision on the IHA tasks for refuge purposes at the signs of disease have stranded as far request. Complex. The previous IHAs covered south as Virginia, although not in shorebird and seabird nest monitoring History of Request elevated numbers. Therefore, the UME and research, roseate tern staging counts investigation now encompasses all seal On March 16, 2016, NMFS received and resighting, red knot stopover study, an application from the USFWS for the strandings from Maine to Virginia. Full northeastern beach tiger beetle census, or partial necropsy examinations have taking of two species of marine and coastal shoreline change survey at mammals incidental to research, been conducted on some of the seals Monomoy, Nantucket, and Nomans and samples have been collected for monitoring, and maintenance activities NWRs. The USFWS proposes to conduct within the Complex. The USFWS’s testing. Based on tests conducted so far, these same activities under the 2019 the main pathogen found in the seals is request was for take of gray seals IHA. The previous IHAs authorized (Halichoerus grypus atlantica) and phocine distemper virus. As of May 31, Level B take of gray seals and harbor 2019, the total number of seals included harbor seals (Phoca vitulina concolor) seals. NMFS has issued an IHA to harass by Level B harassment. A notice of in the UME was 2,435. More these same species. information on this UME is available at proposed IHA and request for comments We refer to the notice of proposed was published in the Federal Register https://www.fisheries.noaa.gov/new- IHA (84 FR 18259; April 30, 2019) and england-mid-atlantic/marine-life- on January 12, 2017 (82 FR 3738). We documents related to the previously subsequently published the final notice distress/2018-2019-pinniped-unusual- issued IHAs and discuss any new or mortality-event-along. of our issuance of the IHA on March 2, changed information here. The previous 2017 (82 FR 12342) making the IHA documents include the Federal Register Potential Effects on Marine Mammals valid from April 1, 2017 through March notices of the previous proposed IHAs and Their Habitat 31, 2018. (82 FR 3738, January 12, 2017; 83 FR On December 5, 2017, NMFS received 9483, March 6, 2018), Federal Register A description of the potential effects a request from the USFWS for an IHA notices of issuance of the previous IHAs of the specified activities on marine for takes of marine mammals incidental (82 FR 12342, March 2, 2017; 83 FR mammals and their habitat may be to the same research and monitoring 19236, May 2, 2018), and all associated found in the documents supporting the activities as the initial IHA. A notice of references and documents. We also refer previous IHAs, which remains proposed IHA and request for comments the reader to the USFWS’s previous and applicable to the issuance of the was published in the Federal Register current applications and monitoring proposed 2019–2020 IHA. Although on March 6, 2018 (83 FR 9483). We reports which can be found at https:// there is currently an ongoing UME subsequently published the final notice www.fisheries.noaa.gov/national/ involving gray and harbor seals, the of our issuance of the IHA on May 2, marine-mammal-protection/incidental- increased mortality appears to be 2018 (83 FR 19236), making the IHA take-authorizations-research-and-other- primarily due to infection with phocine valid from April 1, 2018 through March activities. distemper virus. As such, NMFS has 31, 2019. That IHA was identical to the determined that no new information initial IHA with the same number of Detailed Description of the Action affects our original analysis of impacts takes authorized and the same A detailed description of the ongoing under the 2018–2019 IHA. mitigation, monitoring, and reporting shorebird and seabird nest monitoring Estimated Take requirements. and research, roseate tern staging counts On January 31, 2019, NMFS received and resighting, red knot stopover study, A detailed description of the methods a request from the USFWS for an IHA northeastern beach tiger beetle census, and inputs used to estimate authorized to take gray seals (Halichoerus grypus and coastal shoreline change surveys take is found in these previous atlantica) and harbor seals (Phoca can be found in the previous notices of documents. All estimated take is vitulina concolor) by Level B proposed IHAs (82 FR 3738, January 12, expected to be in the form of Level B harassment incidental to ongoing 2017; 83 FR 9483, March 6, 2018). A harassment. The methods of estimating annual research and monitoring detailed description of the new take for the 2019–2020 IHA are identical activities. USFWS had received two activities in the 2019 take request (New to those used in the 2018–2019 IHA (i.e., previous IHAs (82 FR 12342, March 2, England cottontail reintroduction and by multiplying the maximum number of 2017; 83 FR 19236, May 2, 2018) for protection of seal haulout areas) is seals estimated to be present at each these activities. In their 2019 request, found in the notice of proposed IHA (84 location by the number of events at each the USFWS also requested take of FR 18259; April 30, 2019). location that may result in disturbance). marine mammals incidental to two new Take from the two newly included activities, New England cottontail Description of Marine Mammals activities was estimated in the same introduction and seal haulout A description of the marine mammals manner. The total authorized gray seal protection. The application was in the area of the activities is found in takes are presented in Table 1.

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TABLE 1—ESTIMATED NUMBER OF GRAY SEAL TAKES (BY LEVEL B HARASSMENT) PER ACTIVITY AT MONOMOY, NANTUCKET, AND NOMANS NWRS

Activity Takes per event Events per activity Total takes

Shorebird and Seabird Monitoring & Research ...... 1000 (Monomoy) ...... 34 (Monomoy) ...... 34,430 50 (Nantucket) ...... 8 (Nantucket) ...... 10 (Nomans) ...... 3 (Nomans) ...... Roseate Tern Staging Counts & Resighting ...... 10 (Monomoy) ...... 6 (Monomoy) ...... 100 10 (Nantucket) ...... 4 (Nantucket) ...... Red Knot Stopover Study ...... 250 (Monomoy) ...... 5 (Monomoy) ...... 2,000 150 (Cape Cod) ...... 5 (Cape Cod) ...... Northeastern Beach Tiger Beetle Census ...... 750 (Monomoy) ...... 3 (Monomoy) ...... 2,250 Coastal Shoreline Change Survey ...... 500 (Monomoy) ...... 1 (Monomoy) ...... 500 New England Cottontail Introduction ...... 10 (Nomans) ...... 20 (Nomans) ...... 200 Seal Haul Out Protection ...... 25 (Nantucket) ...... 10 (Nantucket) ...... 250

Total takes ...... 39,730

Estimated take of harbor seals was 2018–2019 IHA (i.e., estimating five authorized takes of gray seals and estimated using methods identical to the percent of gray seal takes). Total harbor seals are shown in Table 2.

TABLE 2—TOTAL ESTIMATED TAKE OF MARINE MAMMALS, RELATIVE TO POPULATION SIZE

Percent (comparison of Species Estimated take Stock abundance instances of take to stock abundance)

Gray seal ...... 39,730 a 27,131 146 b (451,131) (8.81) Harbor seal ...... 1,987 75,834 2.62 a Abundance in U.S. waters (Hayes et al., 2018) b Overall Western North Atlantic stock abundance (Hayes et al., 2018)

Based on the stock abundance Atlantic stock of gray seals is a single Time and Frequency—The USFWS estimate presented in the 2017 SARS, stock (Boskovic et al., 1996; Wood et al., would conduct all proposed activities the take number of gray seals exceeds 2011). Thus, although the U.S. stock throughout the course of the year the number of gray seals in U.S. waters estimate is only 27,131, the overall stock between April 1 and November 30, (Table 2). However, actual take may be abundance of animals in United States outside of the seasons of highest seal slightly less if animals decide to haul and Canadian waters is 451,131. The abundance and pupping at the Complex. out at a different location for the day or gray seal take estimate for this project Closure of beaches used by seals may if animals are foraging at the time of the represents less than nine percent of the occur year-round at Nantucket NWR. survey activities. The number of overall Western North Atlantic stock Vessel Approach and Timing individual seals taken is also assumed abundance (Table 2) if every separate Techniques—The USFWS must ensure to be less than the take estimate since instance of take were assumed to accrue that its vessel approaches to beaches these species show high philopatry to a different individual, and because with pinniped haulouts are conducted (Waring et al., 2016; Wood et al., 2011). this is not the case, the percentage is so as to not disturb marine mammals as We expect the take numbers to represent likely significantly lower. most practicable. To the extent possible, the number of exposures (i.e., instances the vessel must approach the beaches in of take), but assume that the same seals Description of Mitigation, Monitoring a slow and controlled approach, as far may be behaviorally harassed over and Reporting Measures away as possibly from haulouts to multiple days, and the likely number of prevent or minimize flushing. Staff must individual seals that may be harassed The mitigation, monitoring, and also avoid or proceed cautiously when would be less. In addition, this project reporting measures described here are operating boats in the direct path of occurs in a small portion of the overall identical to those included in the swimming seals that may be present in range of the Northwest Atlantic Federal Register notice announcing the the area. population of gray seals. While there is final 2018–2019 IHA (83 FR 19236; May Avoidance of Acoustic Impacts from evidence of haulout site philopatry, 2, 2018) and apply to all activities Cannon Nets—Cannon nets have a resights of tagged and branded animals described in previous Federal Register measured source level (SL) of 128 and satellite tracks of tagged animals notices (i.e., 83 FR 9483; March 6, 2018) decibels (dB) at one meter (m) show movement of individuals between and the two new activities included in (estimated based on a measurement of the United States and Canada (Puryear this document. The discussion of the 98.4 dB at 30 m; L. Niles, pers. comm., et al., 2016). The percentage of time that least practicable adverse impact December 2016); however, the sound individuals are resident in U.S. waters included in the Federal Register notice pressure level (SPL) is expected to be is unknown (NMFS 2017). Genetic of final IHA (83 FR 19236; May 2, 2018) less than the thresholds for airborne evidence provides a high degree of remains accurate. The following pinniped disturbance (e.g., 90 dB for certainty that the Western North measures are included in this IHA: harbor seals, and 100 dB for all other

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pinnipeds) at 80 yards from the source. site must be chosen to minimize seal Behavior of seals must be recorded on The USFWS must stay at least 100 m disturbance if an activity event may a three point scale: 1 = alert reaction, from all pinnipeds if cannon nets are to result in the disturbance of seals. not considered harassment; 2 = moving be used for research purposes. USFWS staff must scan the surrounding at least two body lengths, or change in Avoidance of Visual and Acoustic waters near the haulouts, and if direction greater than 90 degrees; 3 = Contact with People—The USFWS must predators (i.e., sharks) are seen, seals flushing (Table 3). USFWS staff must instruct its members and research staff must not be flushed by USFWS staff. also record and report all observations to avoid making unnecessary noise and The USFWS must avoid disturbance of of sick, injured, or entangled marine not allow themselves to be seen by mothers and pups by either mammals to the Office of Protected pinnipeds whenever practicable. rescheduling surveys, if possible, or Resources, NMFS, and the Greater USFWS staff must stay at least 50 yards refraining from conducting activities Atlantic Regional Stranding from hauled out pinnipeds, unless it is that may cause high-level disturbance absolutely necessary to approach seals (e.g., flushing or long movements over Coordinator, NMFS. Tagged or marked closer, or potentially flush a seal, in land. marine mammals must also be recorded order to continue conducting Marine Mammal Monitoring—The and reported to the appropriate research endangered species conservation work. USFWS must monitor seals as project organization or federal agency, as well When disturbance is unavoidable, staff activities are conducted. Monitoring as any rare or unusual species of marine must work quickly and efficiently to requirements in relation to the USFWS’s mammal. Photographs must be taken minimize the length of disturbance. activities include species counts, when possible. This information must Researchers and staff must do so by numbers of observed disturbances, and be incorporated into a report for NMFS proceeding in a slow and controlled descriptions of the disturbance at the end of the season. The USFWS manner, which allows for the seals to behaviors during the research activities, must also coordinate with any slowly flush into the water. Staff must including location, date, and time of the university, state, or federal researchers also maintain a quiet working event for each site and activity. In to attain additional data or observations atmosphere, avoiding loud noises, and addition, the USFWS will record that may be useful for monitoring using hushed voices in the presence of observations regarding the number and marine mammal usage at the activity hauled out pinnipeds. Pathways of species of any marine mammals either sites. approach to the desired study or nesting observed in the water or hauled out.

TABLE 3—DISTURBANCE SCALE OF PINNIPED RESPONSES TO IN-AIR SOURCES TO DETERMINE TAKE

Level Type of response Definition

1 ...... Alert ...... Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped posi- tion, changing from a lying to a sitting position, or brief movement of less than twice the animal’s body length. 2 * ...... Movement ...... Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal’s body length to longer retreats over the beach, or if already moving a change of direc- tion of greater than 90 degrees. 3 * ...... Flush ...... All retreats (flushes) to the water. * Only Levels 2 and 3 are considered take, whereas Level 1 is not.

If at any time injury, serious injury, or comments from NMFS on the draft recommended that NMFS use the IHA mortality of the species for which take report, NMFS will consider the draft Renewal process sparingly and is authorized should occur, or if take of report to be the final report. The selectively for activities expected to any kind of other marine mammal reporting requirements included in this have the lowest levels of impacts to occurs, and such action may be a result IHA are identical to those described in marine mammals and that require less of the USFWS’s activities, the USFWS the previous IHA (83 FR 19236, May 2, complex analysis. 2018). must suspend activities and contact Response: NMFS has taken a number NMFS immediately to determine how Comments and Responses of steps to ensure the public has best to proceed to ensure that another adequate notice, time, and information injury or death does not occur and to A notice of NMFS’ proposal to issue an IHA was published in the Federal to be able to comment effectively on ensure that the applicant remains in IHA Renewals within the limitations of compliance with the MMPA. Register on April 30, 2019 (84 FR 18259). During the 30-day public processing IHA applications efficiently. Reporting—The USFWS must submit comment period, the Marine Mammal The Federal Register notice for the a draft report to NMFS Office of Commission (Commission) submitted a proposed IHA (84 FR 18259; April 30, Protected Resources no later than 90 letter, providing comments as described 2019) previously identified the days after the conclusion of research below. conditions under which a one-year and monitoring activities in the 2018 Comment: The Commission Renewal IHA might be appropriate. This season. The report must include a questioned whether the public notice information is presented in the Request summary of the information gathered provisions for IHA Renewals fully for Public Comments section of the pursuant to the monitoring satisfy the public notice and comment initial proposed IHA and thus requirements set forth in the proposed provision in the MMPA and discussed encourages submission of comments on IHA. The USFWS must submit a final the potential burden on reviewers of the potential of a one-year renewal as report to NMFS within 30 days after reviewing key documents and well as the initial IHA during the 30-day receiving comments from NMFS on the developing comments quickly. comment period. In addition, when we draft report. If the USFWS receives no Additionally, the Commission receive an application for a Renewal

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IHA, we publish a notice of the 2018) but the amount of taking is still conducting research and monitoring proposed IHA Renewal in the Federal small relative to the population size of activities at the Complex for a period of Register and provide an additional 15 the affected species and stocks (i.e., less one year, provided the previously days for public comment, for a total of than nine percent). The IHA includes mentioned mitigation, monitoring, and 45 days of public comment. We will identical required mitigation, reporting requirements are incorporated. also directly contact all commenters on monitoring, and reporting measures as the initial IHA by email, phone, or, if the 2018 IHA. In conclusion, there is no Donna Wieting, the commenter did not provide email or new information suggesting that our Director, Office of Protected Resources, phone information, by postal service to analysis or findings should change. National Marine Fisheries Service. provide them the opportunity to submit Based on the information contained [FR Doc. 2019–14457 Filed 7–5–19; 8:45 am] any additional comments on the here and in the referenced documents, BILLING CODE 3510–22–P proposed Renewal IHA. NMFS has determined the following: (1) NMFS also strives to ensure the The required mitigation measures will public has access to key information effect the least practicable impact on DEPARTMENT OF COMMERCE needed to submit comments on a marine mammal species or stocks and National Oceanic and Atmospheric proposed IHA, whether an initial IHA or their habitat; (2) the authorized takes Administration a Renewal IHA. The agency’s website will have a negligible impact on the includes information for all projects affected marine mammal species or National Integrated Drought under consideration, including the stocks; (3) the authorized takes Information System National Drought application, references, and other represent small numbers of marine Forum supporting documents. Each Federal mammals relative to the affected stock Register notice also includes contact abundances; and (4) the USFWS’s AGENCY: Climate Program Office (CPO), information in the event a commenter activities will not have an unmitigable Office of Oceanic and Atmospheric has questions or cannot find the adverse impact on taking for subsistence Research (OAR), National Oceanic and information they seek. purposes as no relevant subsistence uses Atmospheric Administration (NOAA), Regarding the Commission’s comment of marine mammals are implicated by Department of Commerce (DOC). that Renewal IHAs should be limited to this action, and (5) appropriate ACTION: Notice of open meeting. certain types of projects, NMFS has monitoring and reporting requirements explained on its website and in are included. SUMMARY: The National Integrated individual Federal Register notices that Drought Information System (NIDIS) Renewal IHAs are appropriate where the Endangered Species Act (ESA) Program Office and the National continuing activities are identical, No incidental take of ESA-listed Drought Resilience Partnership (NDRP) nearly identical, or a subset of the species is proposed for authorization or will host the 2nd National Drought activities for which the initial 30-day expected to result from this activity. Forum on July 30–31, 2019. comment period applied. Where the Therefore, NMFS has determined that DATES: The Forum will be held Tuesday, commenter has likely already reviewed formal consultation under section 7 of July 30, 2019 from 9:00 a.m. EST to 4:30 and commented on the initial proposed the ESA is not required for this action. p.m. EDT and Wednesday July 31, 2019 IHA for these activities, the abbreviated from 9:00 a.m. EST to 4:30 p.m. EDT. National Environmental Policy Act additional comment period is sufficient These times and the agenda topics are for consideration of the results of the To comply with the National subject to change. preliminary monitoring report and new Environmental Policy Act of 1969 ADDRESSES: The meeting will be held at information (if any) from the past year. (NEPA; 42 U.S.C. 4321 et seq.) and the United States Institute of Peace, NOAA Administrative Order (NAO) Determinations 2301 Constitution Avenue NW, 216–6A, NMFS must review our Washington, DC 20037. The USFWS proposes to conduct proposed action (i.e., the issuance of an research and monitoring activities that FOR FURTHER INFORMATION CONTACT: incidental harassment authorization) Murielle Gamache-Morris, Secretariat are nearly identical to those conducted with respect to potential impacts on the previously. Take of marine mammals for the National Drought Forum, David human environment. Skaggs Research Center, Room GD102, from two new activities has been This action is consistent with 325 Broadway, Boulder CO 80305. included in this IHA but the potential categories of activities identified in CE Email: murielle.gamache-morris@ impacts to marine mammals from these B4 of the Companion Manual for NOAA noaa.gov. activities are identical to those Administrative Order 216–6A, which do previously analyzed for the issuance of not individually or cumulatively have SUPPLEMENTARY INFORMATION: The the 2018 IHA. Therefore, the potential the potential for significant impacts on National Integrated Drought Information effects from Level B harassment of the quality of the human environment System (NIDIS) was authorized by marine mammals previously analyzed and for which we have not identified Congress in 2006 (Pub. L. 109–430) and remain applicable, as do NMFS prior any extraordinary circumstances that reauthorized on March 6, 2014 and determinations. would preclude this categorical January 7, 2019 with a mandate to When issuing the 2018 IHA, NMFS exclusion. Accordingly, NMFS has coordinate and integrate drought found the USFWS’s activities, in their determined that the issuance of the research, building upon existing federal, entirety, would have a negligible impact proposed IHA qualifies to be tribal, state, and local partnerships in to species or stocks’ rates of recruitment categorically excluded from further support of creating a national drought and survival and the amount of taking NEPA review. early warning information system. would be small relative to the The National Drought Resilience population size of such species or stock. Authorization Partnership (NDRP) is a partnership This IHA authorizes more takes of seals As a result of these determinations, made up of Federal departments and by Level B harassment than the NMFS has issued an IHA to the USFWS agencies formed to improve Federal previously issued IHAs (82 FR 12342, for the harassment of small numbers of collaboration and promote long-term March 2, 2017; 83 FR 19236, May 2, marine mammals incidental to drought resilience nationwide.

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Status: This meeting will be open to • Proposed Rule on Customer Margin to credit and to ensure that consumers public participation. Individuals Rules relating to Security Futures. are protected from discrimination.1 interested in attending should register at The agenda for this meeting will be Earlier this spring I outlined my https://cpaess.ucar.edu/meetings/2019/ available to the public and posted on priorities for how the Bureau will use its 2nd-national-drought-forum. Please the Commission’s website at https:// tools to carry out our mission. I shared refer to this web page for the most up- www.cftc.gov. In the event that the time, how Congress granted to the Director to-date meeting times and agenda. date, or place of this meeting changes, the tools of education, regulation, Seating at the meeting will be available an announcement of the change, along supervision, and enforcement, each of on a first-come, first-served basis. with the new time, date, or place of the which serves an important component Special Accommodations: This meeting, will be posted on the in the Bureau’s execution of its mission. meeting is accessible to people with Commission’s website. I believe that the best application of disabilities. Requests for special CONTACT PERSON FOR MORE INFORMATION: these tools is to focus on prevention of accommodations may be directed no Christopher Kirkpatrick, Secretary of the harm to consumers and that includes later than 5:00 p.m. on July 15, 2019, to Commission, 202–418–5964. protecting consumers from unfair, Murielle Gamache-Morris, Secretariat deceptive and abusive acts or practices for the National Drought Forum, David Dated: July 2, 2019. as well as from discrimination. The Skaggs Research Center, Room GD102, Christopher Kirkpatrick, Bureau’s very purpose is to ensure that 325 Broadway, Boulder CO 80305; Secretary of the Commission. all consumers have access to consumer Email: murielle.gamache-morris@ [FR Doc. 2019–14500 Filed 7–3–19; 11:15 am] financial products and services which is noaa.gov. BILLING CODE 6351–01–P based on having fair, transparent, and Matters To Be Considered: The competitive markets. meeting will include the following Protecting consumers from topics: (1) Lessons learned and progress BUREAU OF CONSUMER FINANCIAL discrimination is one of the primary towards U.S. drought readiness since PROTECTION objectives laid out in the Dodd-Frank the last Forum in 2012; (2) Act—an objective that the Bureau takes strengthening the state-federal Fair Lending Report of the Bureau of very seriously. Under my leadership, relationship to realize greater Consumer Financial Protection, June the Bureau will continue to vigorously collaboration and promote cooperative 2019 enforce fair lending laws in our partnerships with U.S. businesses to jurisdiction, and will stand on guard AGENCY: Bureau of Consumer Financial address drought; (3) new information against unlawful discrimination in Protection. and opportunities for coordination that credit. In addition to that core work, the help move the Nation from a reactive to ACTION: Fair Lending Report of the Bureau will continue to explore cutting- a proactive approach to drought risk Bureau of Consumer Financial edge fair lending issues including how management; and (4) action items that Protection. consumer-friendly innovation can could improve U.S. drought resilience. increase access to credit to all SUMMARY: The Bureau of Consumer consumers—and especially unbanked Dated: June 19, 2019. Financial Protection (Bureau) is issuing and underbanked consumers and their David Holst, its seventh Fair Lending Report of the communities. Chief Financial Officer/Administrative Bureau of Consumer Financial I am truly excited to take the Bureau’s Officer, Office of Oceanic and Atmospheric Protection (Fair Lending Report) to work in fair lending to a new level, and Research, National Oceanic and Atmospheric Congress. The Bureau is committed to I look forward to working with all Administration. ensuring fair access to credit and stakeholders on these important matters. [FR Doc. 2019–14459 Filed 7–5–19; 8:45 am] eliminating discriminatory lending Sincerely, BILLING CODE 3510–KD–P practices. This report describes the Bureau’s fair lending activities in Kathleen L. Kraninger. prioritization, supervision, enforcement, Message from Patrice Alexander Ficklin, COMMODITY FUTURES TRADING rulemaking, interagency coordination, Director, Fair Lending. COMMISSION and outreach for calendar year 2018. 2018 marked the Office of Fair DATES: The Bureau released the June Lending and Equal Opportunity’s Sunshine Act Meetings 2019 Fair Lending Report on its website seventh full year of spearheading the on June 28, 2019. Bureau’s efforts to fulfill its fair lending TIME AND DATE: 10 a.m., Thursday, July mandate. It was also a year of transition 11, 2019. FOR FURTHER INFORMATION CONTACT: Bobby Conner, Senior Policy Counsel, for the Office as it prepared to move to PLACE: CFTC Headquarters, Lobby- the Director’s office as part of the Office Level Hearing Room, Three Lafayette Fair Lending, at 1–855–411–2372. If you require this document in an alternative of Equal Opportunity and Fairness. Centre, 1155 21st Street NW, _ Throughout the transition, the Office Washington, DC. electronic format, please contact CFPB [email protected]. has continued to focus on promoting STATUS: Open. fair, equitable, and nondiscriminatory SUPPLEMENTARY INFORMATION: MATTERS TO BE CONSIDERED: The access to credit and has embarked on Commodity Futures Trading 1. Fair Lending Report of the Bureau of new efforts to coordinate the Bureau’s Commission (‘‘Commission’’ or Consumer Financial Protection, June fair lending work both internally, and ‘‘CFTC’’) will hold this meeting to 2019 with other governmental agencies, consider the following matters: industry, and stakeholders to encourage Message From Kathleen L. Kraninger, • Supplemental Proposal on innovation in expanding responsible Director Exemption from Derivatives Clearing credit access. Organization Registration; This Fair Lending Report describes The Bureau’s supervisory and • Proposed Rule on Registration with the Consumer Financial Protection enforcement activity in 2018 focused on Alternative Compliance for Non-U.S. Bureau’s 2018 activities to expand fair, Derivatives Clearing Organizations; and equitable, and nondiscriminatory access 1 (12 U.S.C. 5511(b)(2).

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mortgage lending, small business 1. Access to Credit strategies and innovations for lending, and student loan servicing. Our The Bureau is responsible for overcoming barriers faced by credit mortgage lending activity focused on providing oversight and enforcement of invisible consumers and unscorable redlining, underwriting, pricing, Federal laws intended to ensure ‘‘fair, consumers and expanding credit access. steering, servicing, and Home Mortgage equitable, and nondiscriminatory access The Symposium was held at CFPB Disclosure Act data integrity. Redlining to credit for both individuals and Headquarters in Washington, DC. continues to be a priority for the Bureau communities.’’ 4 To achieve the mission, The Bureau’s Building a Bridge to in both mortgage lending and small the Bureau focuses both on preventing Credit Visibility Symposium added to business lending. The Bureau continues discrimination and addressing it when the growing body of knowledge on the to facilitate implementation of the 2010 it happens. The Bureau has available a credit invisible population, sometimes Dodd Frank Act amendments to HMDA number of prevention tools: Outreach referred to as unbanked and and the subsequent changes under the and education, and the issuance of underbanked. The Symposium, and the Economic Growth, Regulatory Relief, Geography of Credit Invisibility data guidance, promulgation of regulations, 6 and Consumer Protection Act.2 and supervision and enforcement. point released in conjunction with the On July 18, 2018, the Bureau In 2018, Fair Lending used a number Symposium, provided a platform where announced the creation of its Office of of these tools and increased its focus on industry, consumer and civil rights Innovation and transitioned the work of ensuring fair, equitable, and advocates, regulators, researchers, and Project Catalyst to this new office. The nondiscriminatory access to credit other stakeholders could raise Bureau encourages responsible through: (1) Hosting a symposium on awareness of the issues that credit innovations that could be implemented credit invisibility; (2) establishing invisible and unscorable consumers in a consumer-friendly way to help collaboration with the new Office of face, learn more about financial serve populations currently underserved Innovation; (3) monitoring a No-Action innovation that is happening, and shape by the mainstream credit system. The Letter; and (4) prioritizing supervisory plans for how to continue to increase Office worked closely with Project reviews of third-party credit scoring future access to credit going forward. Catalyst since its inception to increase models to further the Bureau’s interest At the Symposium, a number of consumer access to credit. The Fair in identifying potential benefits and stakeholders took part in substantive Lending office looks forward to the risks associated with the use of panel discussions. During the first continued close working relationship alternative data and modeling panel, each speaker delivered a short with the Office of Innovation. techniques. talk on credit, exploring issues such as In September 2018, the Office held a credit invisibility, lending deserts, and symposium, Building a Bridge to Credit 1.1 Symposium and Report on Credit innovation to expand access to credit. Visibility, the first in a series of planned Visibility During the second panel, panelists convenings aimed at expanding access The CFPB has reported in recent explored questions related to entry to credit for consumers who face years, in a series of publications,5 that products that bridge consumers to credit barriers to accessing credit. The Bureau roughly 20 percent of the adult visibility while also preparing them for estimates that 45 million Americans are population have no credit records or financial success. During the third credit invisible or lack sufficient credit very limited credit records with the panel, panelists focused on identifying history which in turn causes those three Nationwide Credit Reporting barriers and solutions to accessing consumers to face barriers to accessing Agencies (NCRAs). As a result, these credit in the small business lending credit, or pay more for credit. The ‘‘credit invisible’’ and ‘‘unscorable’’ space, and discussed the roles played by Symposium was attended, both in- consumers are unable to fully different stakeholders in this space. And person and via web-based livestream participate in the credit marketplace. finally, during the last panel, video, by hundreds of stakeholders from This can limit their ability to withstand participants discussed the role industry, government, think tanks, financial shocks and achieve financial alternative data and modeling academia, and consumer advocacy and stability. techniques can play in expanding access civil rights organizations, representing a In September 2018, the Bureau to traditional credit. diverse range of experiences and convened its first fair lending A few key themes were evident across perspectives. Symposium to address the issue of panel discussions at the Symposium. Along with the rest of the Bureau, the access to credit, entitled Building a These themes can inform action Office welcomed our new Director, Bridge to Credit Visibility. The planning for private and public sector Kathy Kraninger, in early December Symposium was attended, both in- stakeholders from industry, consumer 2018 and began work to implement her person and via web-based livestream and civil rights advocacy organizations, commitment to enforce the fair lending video, by hundreds of stakeholders from academia, and government. Some of laws under the Bureau’s jurisdiction industry, government, think tanks, these key themes were: • Strengthen the business case for using the tools of education, rulemaking academia, and consumer advocacy and expanding access to credit. and guidance, supervision and civil rights organizations, representing a • diverse range of experiences and Explore innovation that expands enforcement. credit access without sacrificing Since its inception, the Office has perspectives. Panelists discussed consumer protections. done tremendous work in fulfilling its • Understand the experience of the Dodd-Frank mandate to protect 4 12 U.S.C. 5493(c)(2)(A). 5 credit invisible population. America’s consumers from lending See CFPB Data Point: Becoming Credit Visible (June 2017), s3.amazonaws.com/ • Recognize that ‘‘high-touch’’ discrimination and promote credit files.consumerfinance.gov/f/documents/ relationships are important. access.3 BecomingCreditVisible_Data_Point_Final.pdf; • Conduct more research and data Sincerely, CFPB, Who Are the Credit Invisibles? How to Help analysis. Patrice Alexander Ficklin. People with Limited Credit Histories (Dec. 2016), s3.amazonaws.com/files.consumerfinance.gov/f/ documents/201612_cfpb_credit_invisible_policy_ 6 See CFPB, Data Point: The Geography of Credit 2 Public Law 115–174, 132 Stat. 1296 (2018). report.pdf; CFPB, Data Point: Credit Invisibles (May Invisibility (Sept. 2018), s3.amazonaws.com/ 3 See Dodd-Frank Act section 1013(c)(2)(D) 2015), files.consumerfinance.gov/f/201505_cfpb_ files.consumerfinance.gov/f/documents/bcfp_data- (codified at 12 U.S.C. 5493(c)(2)(D)). data-point-credit-invisibles.pdf. point_the-geography-of-credit-invisibility.pdf.

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• Be mindful that not all credit is participation by organizations seeking to the 2017 NAL. Under the terms of the equal. advance new products and services. The no-action letter issued by Bureau staff, At the Symposium, Jacqueline Reses Bureau encourages innovative products Upstart agreed to share certain from Square, Inc. and Square Capital and services that benefit consumers, information with the CFPB regarding (‘‘Square’’) gave the keynote address. including those that promote fair, the loan applications it receives, how it Later in the day, Paul Watkins, Assistant equitable, and nondiscriminatory access decides which loans to approve, and Director of the Bureau’s Office of to credit. As part of its coordination how it will mitigate risk to consumers, Innovation, shared his vision for the function, the Office of Fair Lending as well as information on how its model new office. Finally, Bureau leaders engages with potential entrants into the expands access to credit for traditionally ended the Symposium with a ‘‘fireside Bureau’s Innovation programs, underserved populations. In addition, chat,’’ highlighting key themes from the including those interested in special Upstart agreed as part of its request for day and exploring the ways the CFPB’s purpose credit programs 10 to help a NAL to employ other consumer mission provides the Bureau with tools promote credit access for underserved safeguards. These safeguards, which are to engage on these issues. borrowers. described in the application materials Additional information including the 1.3 Upstart No-Action Letter posted on the Bureau’s website, include symposium agenda, a video of the ensuring compliance with adverse symposium (with closed-captioning), In February 2016, the Bureau issued action notice requirements, and and an informational blog post can be its initial No Action Letter (NAL) policy, ensuring that all of its consumer-facing 7 found on the Bureau’s website. which provides Bureau staff the ability communications are timely, transparent, to evaluate an applicant’s consumer 1.2 Collaboration With Office of and clear, and use plain language to financial product or service and signify Innovation convey to consumers the type of that Bureau staff has no present intent information that will be used in In 2018, the Bureau prioritized to recommend initiation of supervisory underwriting. innovation in part to help expand fair, or enforcement action against the entity equitable and nondiscriminatory access in respect to the product or service.11 The CFPB expects that this to credit to underserved populations.8 In 2018 Fair Lending continued to information will further its To lead this effort, on July 18, 2018, the monitor Upstart Network, Inc. (Upstart) understanding of how the types of Bureau created the Office of Innovation under the terms of the no-action letter practices employed by Upstart impact and transitioned the work that was it received from Bureau staff on access to credit generally and for being done under Project Catalyst to this September 14, 2017. traditionally underserved populations, new office. The Office of Innovation By way of background, Upstart is a as well as the application of compliance helps the Bureau fulfill its statutory company that uses machine learning in management systems for these emerging mandate to promote competition, making credit and pricing decisions. practices. innovation, and consumer access within Based in San Carlos, Calif., Upstart 1.4 Models financial services. To achieve this goal, provides an online lending platform for the new office focuses on creating consumers to apply for personal loans, When making credit decisions, policies to facilitate innovation, including credit card refinancing, lenders often rely on proprietary or engaging with entrepreneurs and student loans, and debt consolidation. third-party credit scoring models. In regulators, and facilitating identification Upstart evaluates consumer loan recent years, new third-party credit of outdated and unnecessary applications using traditional factors scoring models have been developed for regulations.9 Fair Lending’s focus on such as credit score and income, as well lenders based on information beyond fair, equitable, and nondiscriminatory as incorporating non-traditional sources the contents of a consumer’s core credit access to credit for individuals and of information such as education and file. The use of alternative data and communities provides for synergy with employment history. modeling techniques may expand access the work of the Office of Innovation. The no-action letter issued to Upstart to credit or lower credit cost and, at the The Office of Innovation is in the signified that Bureau staff has no same time, present fair lending risks. process of revising the Bureau’s No present intent to recommend initiation In 2018, Fair Lending recommended Action Letter (NAL) and trial disclosure of supervisory or enforcement action supervisory reviews of third-party credit policies, and establishing a Product against Upstart with respect to the Equal scoring models so that the Bureau Sandbox, in order to increase Credit Opportunity Act. The letter ‘‘keep[s] pace with the evolution of applies to Upstart’s model for technology in consumer financial 7 https://www.consumerfinance.gov/about-us/ underwriting and pricing applicants as products and services in order to events/archive-past-events/building-bridge-credit- described in the company’s application visibility/. accomplish its strategic goals and materials. The no-action letter is 12 8 objectives.’’ These recommended Historically, the Office of Fair Lending has specific to the facts and circumstances worked closely with the Bureau’s Project Catalyst, reviews would focus on obtaining which was established to encourage consumer- of the particular company and does not information and learning about the friendly innovation and entrepreneurship in serve as an endorsement of the use of models and compliance systems of markets for consumer financial products and any particular variables or modeling third-party credit scoring companies for services. Through Project Catalyst, the Bureau techniques. In 2018 Fair Lending sought to advance consumer-friendly innovation by the purpose of assessing fair lending monitored Upstart under the terms of way of outreach to innovators, discussion of Special risks to consumers and whether the Purpose Credit Programs, and the No-Action Letter models are likely to increase access to program. By staffing Project Catalyst Office Hours 10 Consumer Financial Protection Bureau, and engaging in discussions with No-Action Letter Supervisory Highlights Summer 2016 at 16–18 (June credit. Observations from these reviews candidates, Fair Lending has worked to advance 2016), https://files.consumerfinance.gov/f/ are expected to further the Bureau’s innovation. documents/Supervisory_Highlights_Issue_12.pdf. interest in identifying potential benefits 9 Consumer Financial Protection Bureau, Bureau 11 The 2016 policy as submitted to the Federal and risks associated with the use of of Consumer Financial Protection Announces Register is available at https:// Director for the Office of Innovation, https:// files.consumerfinance.gov/f/201602_cfpb_no- www.consumerfinance.gov/about-us/newsroom/ action-letter-policy.pdf. As of the issuance of this 12 CFPB Strategic Plan for FY 2018–2022, https:// bureau-consumer-financial-protection-announces- report, a revised NAL policy is under consideration. files.consumerfinance.gov/f/documents/cfpb_ director-office-innovation/. See Section 1.4 for more information. strategic-plan_fy2018-fy2022.pdf.

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alternative data and modeling new research report on the geographic 3.0 Guidance and Rulemaking techniques. patterns of credit invisibility,16 and A significant focus of the Bureau’s 3.1 HMDA Exemptions Under noting the release of the fair lending EGRRCPA interest in models is ways that annual report on 2017 activities.17 alternative data and modeling may As part of the Bureau’s efforts to The Bureau’s blog posts, including expand access to credit for consumers enforce Home Mortgage Disclosure Act who are credit invisible or who lack those related to fair lending, may be (HMDA) and its implementing enough credit history to obtain a credit accessed at www.consumerfinance.gov/ regulation, Regulation C, on August 31, score. The Bureau is also interested in blog. 2018, the Bureau issued an interpretive other potential benefits associated with 2.2 Supervisory Highlights and procedural rule to implement and the use of alternative data and modeling clarify the requirements of section techniques that may directly or Supervisory Highlights has long been 104(a) of the Economic Growth, indirectly benefit consumers, including a report that anchors the Bureau’s efforts Regulatory Relief, and Consumer enhanced creditworthiness predictions, to communicate about the Bureau’s Protection Act (EGRRCPA), which more timely information about a supervisory activity. More information earlier in 2018 amended certain 18 consumer, lower costs, and operational about the fair lending topics discussed provisions of HMDA. The rule clarifies that insured improvements. this year in Supervisory Highlights can depository institutions and insured be found in Section 5.1.1 of this Report. 2. Outreach: Promoting Fair Lending credit unions covered by a partial Compliance and Education As with all Bureau resources, all exemption have the option of reporting editions of Supervisory Highlights are A key tool that the Bureau uses to exempt data fields as long as they report available on www.consumerfinance.gov/ help prevent lending discrimination is all data fields within any exempt data reports. outreach and education. Pursuant to point for which they report data; Dodd-Frank,13 the Office of Fair 2.3 Speaking Engagements and clarifies that only loans and lines of Lending regularly engages in outreach Roundtables credit that are otherwise HMDA with Bureau stakeholders, including reportable count toward the thresholds consumer advocates, civil rights Staff from the Bureau’s Office of Fair for the partial exemptions; clarifies organizations, industry, academia, and Lending and Equal Opportunity which of the data points in Regulation other government agencies, to: (1) participated in a number of outreach C are covered by the partial exemptions; Educate them about fair lending speaking events and roundtables designates a non-universal loan compliance and access to credit issues throughout 2018 to: (1) Educate them identifier for partially exempt and (2) hear their views on the Bureau’s about fair lending compliance and transactions for institutions that choose work to inform the Bureau’s policy access to credit issues and (2) hear their not to report a universal loan identifier; and clarifies the exception to the partial decisions. views on the Bureau’s work to inform exemptions for negative Community The Bureau is committed to the bureau’s policy decisions. In these communicating directly with all Reinvestment Act examination history. events, staff shared information on fair The rule also provided that at a later stakeholders on its policies, compliance lending priorities, emerging issues, and expectations, and fair lending priorities, date, the Bureau would initiate a notice- heard feedback from stakeholders on and-comment rulemaking to incorporate and to receiving valuable input about fair lending issues and how innovation fair lending issues and how innovation these interpretations and procedures can promote fair, equitable, and can promote fair, equitable, and into Regulation C and further nondiscriminatory access to credit. 19 nondiscriminatory access to credit. implement the Act. Some examples of the topics covered The Bureau also engaged in a number 2.1 Blog Posts include fair lending priorities, fair of non-rulemaking activities to facilitate The Bureau regularly uses its blog as lending model governance, innovations the EGRRCPA implementation. The a tool to communicate effectively to in lending, redlining, HMDA, small Bureau reviewed its compliance guides consumers and other stakeholders on business lending, alternative data, and and examination manuals to make timely issues, emerging areas of installment lending contracts. In appropriate updates, as well as engaged concern, Bureau initiatives, and more. addition to these outreach events, the with stakeholders regarding the In 2018 the Bureau published four blog 2018 Symposium, discussed in Section issuance of guidance to meet the posts related to fair lending topics 1.1 of this Report, served as a principal statutory requirements and facilitate 20 including: Providing consumers vehicle to exchange information related compliance. updated information about a fair to access to credit to inform the 3.2 HMDA Data Disclosure lending enforcement action,14 Bureau’s policy making activity. On December 21, 2018, the Bureau announcing the Bureau’s day -long issued final policy guidance describing Symposium, Building a Bridge to Credit Visibility,15 announcing the release of a blog/save-date-building-bridge-credit-visibility- 18 Public Law 115–174, 132 Stat. 1296 (2018). symposium/. 19 Consumer Financial Protection Bureau, Partial 13 Dodd-Frank Act section 1013(c)(2)(C) (codified 16 Ken Brevoort & Patrice Ficklin, New research Exemptions from the Requirements of the Home at 12 U.S.C. 5493(c)(2)(C)). report on the geography of credit invisibility, Mortgage Disclosure Act Under the Economic 14 Patrice Alexander Ficklin, What you need to Consumer Financial Protection Bureau (Sept. 19, Growth, Regulatory Relief, and Consumer know to get money from the settlement with 2018), https://www.consumerfinance.gov/about-us/ Protection Act (Regulation C) (September 7, 2018), Bancorp South Bank for alleged discrimination, blog/new-research-report-geography-credit- 45325–45333, 83 FR 45325, https:// Consumer Financial Protection Bureau (June 5, invisibility/. www.federalregister.gov/documents/2018/09/07/ 2018), https://www.consumerfinance.gov/about-us/ 17 2018–19244/partial-exemptions-from-the- blog/what-you-need-know-get-money-settlement- Patrice Alexander Ficklin, Promoting fair, requirements-of-the-home-mortgage-disclosure-act- bancorpsouth-bank-alleged-discrimination/. equitable, and nondiscriminatory access to credit: under-the-economic. 15 Patrice Alexander Ficklin, Save the date for the 2017 Fair Lending Report (Dec. 4, 2018), https:// 20 Kelly Cochran, Fall 2018 rulemaking agenda ‘Building a Bridge to Credit Visibility’ symposium, www.consumerfinance.gov/about-us/blog/ (October 17, 2018), https:// Consumer Financial Protection Bureau (Aug. 02, promoting-fair-equitable-and-nondiscriminatory- www.consumerfinance.gov/about-us/blog/fall-2018- 2018), https://www.consumerfinance.gov/about-us/ access-credit-2017-fair-lending-report/. rulemaking-agenda/.

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modifications that it intends to apply to maintained, and reported, including but enforcement activity, to help ensure the HMDA data reported by financial not limited to the type of loan applied focus on areas that present substantial institutions before the data are made for, the amount of credit applied for, the risk of credit discrimination for public on the loan level. In issuing the type of action taken with regard to each consumers.27 This same approach guidance, the Bureau considered how application, the census tract of the continued in 2018. appropriately to protect applicant and principal place of business of the loan As part of the prioritization process, borrower privacy while also fulfilling applicant, and the race, sex, and the Bureau identifies emerging HMDA’s public disclosure purposes. ethnicity of the principal owners of the developments and trends by monitoring The policy guidance applies to data business. The Dodd-Frank Act also key consumer financial markets. If this compiled by financial institutions in provides authority for the Bureau to market intelligence identifies fair 2018 that will be made available to the require any additional data that the lending risks in a particular market that public beginning in 2019. In addition, Bureau determines would aid in require further attention, that after consideration of stakeholder fulfilling the purposes of section 1071. information is incorporated into the comments urging that determinations In connection with its Fall 2018 prioritization process to determine the concerning the disclosure of loan-level Rulemaking Agenda,23 the Bureau type and extent of attention required to HMDA data be effectuated through more announced that in light of the need to address those risks. formal processes, the Bureau also has focus additional resources on various The fair lending prioritization process decided to add a new notice-and- HMDA initiatives, the Bureau had incorporates a number of additional comment rulemaking to govern the adjusted its timeline for implementing factors as well, including: Tips and disclosure of HMDA data in future the statutory directive contained in leads from industry whistleblowers, years, which was included in the section 1071 from pre-rule status to advocacy groups, and government Bureau’s Fall 2018 rulemaking agenda. longer-term action status. More recently, agencies; supervisory and enforcement in connection with its Spring 2019 history; consumer complaints; and 3.3 ECOA and Regulation B Rulemaking Agenda,24 the Bureau results from analysis of HMDA and On May 21, 2018, in response to the announced it intends to recommence other publicly available data. enactment of a Congressional resolution work later this year to develop rules to disapproving the Bureau’s indirect auto implement section 1071 of the Dodd- 4.2 Fair Lending Supervisory and lending guidance, the Bureau’s former Frank Act. The Bureau will recommence Enforcement Priorities Acting Director issued a statement its work on section 1071 with a While the Bureau remains committed indicating the Bureau’s intent to symposium on small business loan data to ensuring that consumers are reexamine requirements of the ECOA collection.25 Details regarding the protected from discrimination in all regarding the disparate impact doctrine symposium will be announced on the credit markets under its legal authority, in light of recent Supreme Court case Bureau’s website at a later time. as a result of its annual risk-based law addressing the availability of 3.5 Amicus Program prioritization process in 2018, the disparate impact legal theory under the Bureau identified the following new Fair Housing Act.21 The Bureau files amicus, or friend-of- focus areas for fair lending examinations On April 19, 2019, the Bureau the-court, briefs in significant court or investigations: announced that it would be conducting cases concerning the federal consumer • Student Loan Origination: Whether a symposia series exploring consumer financial protection laws, including there is discrimination in policies and protections in the financial services ECOA. These amicus briefs provide the practices governing underwriting and marketplace. One topic of the symposia courts with Bureau views on significant pricing. series is disparate impact and the Equal consumer financial protection issues. • Debt Collection and Model Use: Credit Opportunity Act.22 Details Information regarding the Bureau’s Whether there is discrimination in regarding the symposium will be amicus program, including a description policies and practices governing auto of the amicus briefs it has filed, is servicing and credit card collections, announced on the Bureau’s website at a 26 later time. available on the Bureau’s website. including the use of models that predict recovery outcomes. 3.4 Small Business Data Collection 4. Supervision and Enforcement Prioritization The Bureau’s fair lending supervision Section 1071 of the Dodd-Frank Act work also continued to focus on amends ECOA to require financial 4.1 Risk-Based Prioritization mortgage origination, mortgage institutions to collect, report, and make Because Congress charged the Bureau servicing, and small business lending, public certain information concerning with responsibility for overseeing many as in previous years. credit applications made by women- lenders and products, SEFL, including The Bureau’s mortgage origination owned, minority-owned, and small the Office of Fair Lending, have long- work continued to focus on: (a) businesses. The amendments to ECOA used a risk-based approach to prioritize Redlining and whether lenders made by the Dodd-Frank Act require supervisory examinations and intentionally discouraged prospective that specific data be collected, applicants living in or seeking credit in 23 Kelly Cochran, Fall 2018 rulemaking agenda minority neighborhoods from applying 21 Statement of the Bureau of Consumer Financial (October 17, 2018), https:// for credit; (b) assessing whether there is Protection on enactment of S.J. Res. 57 (May 21, www.consumerfinance.gov/about-us/blog/fall-2018- discrimination in underwriting and rulemaking-agenda/. 2018), https://www.consumerfinance.gov/about-us/ pricing processes as well as steering; newsroom/statement-bureau-consumer-financial- 24 Diane Thompson, Spring 2019 rulemaking protection-enactment-sj-res-57/; see also Fall 2018 agenda (May 22, 2019), https:// and (c) HMDA data integrity and Regulatory Agenda Preamble (Aug. 30, 2018), www.consumerfinance.gov/about-us/blog/spring- available at https://www.reginfo.gov/public/jsp/ 2019-rulemaking-agenda/. 27 For additional information regarding the eAgenda/StaticContent/201810/Preamble_ 25 Consumer Financial Protection Bureau Bureau’s risk-based approach in prioritizing 3170.html. Announces Symposia Series (April 8, 2019), https:// supervisory examinations, see Section 3.2.3, Risk- 22 Consumer Financial Protection Bureau www.consumerfinance.gov/about-us/newsroom/ Based Approach to Examinations, Supervisory Announces Symposia Series (April 8, 2019), https:// bureau-announces-symposia-series/. Highlights Summer 2013, available at http:// www.consumerfinance.gov/about-us/newsroom/ 26 https://www.consumerfinance.gov/policy- files.consumerfinance.gov/f/201308_cfpb_ bureau-announces-symposia-series/. compliance/amicus/. supervisory-highlights_august.pdf.

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validation (supporting ECOA exams) as refer matters to the Justice Department Financial Institutions Examination well as HMDA diagnostic work when it has reason to believe that a Council (FFIEC) and the Department of (monitoring and assessing new rule creditor has engaged in a pattern or Housing and Urban Development. The compliance). practice of lending discrimination in new platform modernizes the HMDA The Bureau’s mortgage servicing fair violation of ECOA.29 The Bureau also collection process, and aims to reduce lending supervision work explored may refer other potential ECOA the time to deliver HMDA data to the whether there is discrimination in the violations to the Justice Department, at public. New capabilities will continue default servicing processes at particular its discretion.30 to be added to this platform, including institutions, and focused on whether a forthcoming publication query tool 5.1.1 Fair Lending Supervisory there are weaknesses in fair lending- and Application Programming Interface Developments related compliance management (API) that will replace the previous API. systems. The Bureau published various The previous Bureau HMDA Explorer The Bureau’s small business lending supervision program developments and API that are scheduled to be retired supervision work focused on assessing related to fair lending in the Summer had been designed to support a previous whether (1) there is discrimination in 2018 edition of Supervisory Highlights. generation of HMDA data and were not application, underwriting, and pricing Those developments are also able to accommodate the expanded data processes, (2) creditors are redlining, summarized below.31 points in the 2018 collection that were and (3) there are weaknesses in fair added pursuant to the 2015 HMDA lending related compliance management 5.1.2 HMDA Implementation and New Data Submission Platform Rule. The tool had not had any major systems. updates since its release in 2013. In The Bureau also continued to The Summer 2018 edition of order to prepare for the retirement of the vigorously enforce Federal fair lending Supervisory Highlights 32 noted its prior old site, the Bureau conducted a number laws, including ECOA and HMDA. One statement regarding HMDA of interviews with community groups key area on which the Bureau focused implementation and discussed updates and HMDA stakeholders over last its fair lending enforcement efforts was to HMDA related to the enactment of the summer to develop a new set of addressing potential discrimination in EGRRCPA. requirements based on the needs of data mortgage lending, including the On December 21, 2017, the Bureau users. The new query tool, HMDA Data unlawful practice of redlining. issued a public statement regarding Browser, will be released late Summer 33 5. Fair Lending Supervision HMDA implementation. The 2019 on the new HMDA Platform. statement indicated that, ‘‘for HMDA One of the Bureau’s consumer The Summer 2018 Supervisory data collected in 2018 and reported in Highlights also discussed the Bureau’s protection tools is its supervisory 2019 the Bureau does not intend to examinations. The Bureau’s fair lending July 5, 2018 public statement regarding require data resubmission unless data recent HMDA amendments under the supervision program assesses errors are material. Furthermore, the compliance with ECOA and HMDA at EGRRCPA. The EGRRCPA provided Bureau does not intend to assess partial exemptions for some insured banks and nonbanks over which the penalties with respect to errors in data Bureau has supervisory authority. depository institutions and insured collected in 2018 and reported in 2019.’’ credit unions from certain HMDA Supervision activities in 2018 ranged The Bureau further indicated that from assessments of institutions’ fair requirements. The Bureau indicated that examinations of 2018 HMDA data the EGRRCPA would not affect the lending compliance management would be diagnostic in nature, serving systems to in-depth reviews of products format of the HMDA Loan Application to help institutions identify compliance or activities that may pose heightened Registry (LAR).36 Institutions that were weakness and crediting good faith fair lending risks to consumers. As part no longer required to report certain data efforts.34 The statement also noted that of its fair lending supervision program, fields under the EGRRCPA would the Bureau ‘‘intends to engage in a the Bureau conducted three types of fair instead enter an exemption code in the rulemaking to reconsider various lending reviews: ECOA baseline field. On August 31, 2018, the Bureau aspects of the 2015 HMDA Rule such as reviews, ECOA targeted reviews, and published an updated Filing the institutional and transactional HMDA data integrity reviews. Instructions Guide which added As a general matter, if such a review coverage tests and the rule’s exemption codes to the requisite data 35 finds that an institution’s fair lending discretionary data points.’’ fields under the EGRRCPA.37 compliance is inadequate or creates fair In January 2018, the Bureau launched More information about the HMDA- lending risk, the Bureau communicates a new HMDA Platform to collect and related topics discussed this year in its supervisory recommendations to the publish HMDA data. The HMDA Supervisory Highlights can be found in institution to help the institution Platform is operated by the Bureau on Section 3 of this Report. consider fair lending compliance behalf of the members of the Federal 5.1.3 Small Business Lending Review programs commensurate with the size 29 Procedures and complexity of the institution and its 15 U.S.C. 1691e(g). 30 Id. 28 lines of business. In circumstances 31 The Summer 2018 edition of Consumer Financial Protection Bureau, 38 where examinations identify violations Supervisory Highlights Summer 2018 at 18–20 Supervisory Highlights reported on of fair lending laws, institutions may be (September 2018), https:// the Bureau’s fair lending work in small www.consumerfinance.gov/documents/6817/bcfp_ required to provide remediation and _ _ restitution to consumers, along with supervisory-highlights issue-17 2018-09.pdf. 36 Consumer Financial Protection Bureau, 32 Id. Supervisory Highlights Summer 2018 at 19 other appropriate relief. In accordance 33 CFPB Issues Public Statement on Home (September 2018), https:// with law, the Bureau is mandated to Mortgage Disclosure Act Compliance (December 21, www.consumerfinance.gov/documents/6817/bcfp_ 2017), available at https:// supervisory-highlights_issue-17_2018-09.pdf. 28 For recent updates to the types of supervisory www.consumerfinance.gov/about-us/newsroom/ 37 Filing Instructions Guide for HMDA Data communications, see https://s3.amazonaws.com/ cfpb-issues-public-statement-home-mortgage- Collected in 2018 (August 2018), https:// files.consumerfinance.gov/f/documents/bcfp_ disclosure-act-compliance/. s3.amazonaws.com/cfpb-hmda-public/prod/help/ bulletin-2018-01_changes-to-supervisory- 34 Id. 2018-hmda-fig-2018-hmda-rule.pdf. communications.pdf. 35 Id. 38 Id. at 20–21.

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business lending where the Bureau however, it did not bring fair lending- against Fifth Third for alleged seeks to ensure that creditors do not related enforcement actions. discrimination in auto lending.42 discriminate on any prohibited bases. The Bureau refers matters with ECOA Honda Finance The Supervisory Highlights discussed violations to the DOJ when it has reason In 2018 the Bureau conducted activity the procedures and methodologies used to believe that a creditor has engaged in following the 2015 enforcement action as part of the Bureau’s small business a pattern or practice of lending against Honda Finance. By way of examination process. discrimination.40 A referral does not Each ECOA small business lending background, on July 14, 2015, working prevent the Bureau from taking its own review includes a fair lending in close coordination with the DOJ, the independent action to address a assessment of the institution’s Bureau ordered American Honda violation. Compliance Management System (CMS) Finance Corporation (Honda Finance) to related to small business lending. To 6.1 Implementing Enforcement Orders pay $24 million in damages to harmed conduct this portion of the review, African-American, Hispanic, and Asian examinations use Module II of the When an enforcement action is or Pacific Islander borrowers. On ECOA Baseline Review Modules.39 CMS resolved through a public enforcement October 2, 2017, participating African- reviews include assessments of the order, the Bureau (together with the American, Hispanic, and Asian and/or institution’s board and management Justice Department, when relevant) Pacific Islander borrowers, whom oversight, compliance program (policies takes steps to ensure that the respondent Honda Finance overcharged for their and procedures, training, monitoring or defendant complies with the auto loans were mailed checks and/or audit, and complaint response), requirements of the order. As compensating them for their harm. and service provider oversight. appropriate to the specific requirements During 2018, the administration of the Examinations also use the Interagency of individual public enforcement orders, settlement consisted largely of Fair Lending Examination Procedures, the Bureau may take steps to ensure that monitoring consumer responses, check which have been adopted in the borrowers who are eligible for cashing rates and following up with Bureau’s Supervision and Examination compensation receive remuneration and respect to uncashed checks to determine Manual. In some ECOA small business that the defendant has complied with better ways to contact eligible lending reviews, examination teams the injunctive provisions of the order, consumers and encourage check may evaluate an institution’s fair including implementing a cashing. lending risks and controls related to comprehensive fair lending compliance Provident Funding Associates origination or pricing of small business management system. Throughout 2018, lending products. Some reviews may the Bureau worked to implement and In 2018 the Bureau completed its include a geographic distribution oversee compliance with the pending work implementing the consumer analysis of small business loan public enforcement orders that were redress provisions of the consent order applications, originations, loan officers, entered by federal courts or issued by in the Provident Funding Associates or marketing and outreach, in order to the Bureau’s Director in prior years. (Provident) matter. Working jointly with assess potential redlining risk. DOJ, the agencies filed a complaint on As with other in-depth ECOA 6.1.1 Settlement Administration May 28, 2015 alleging that Provident reviews, ECOA small business lending Bancorp South Bank unlawfully discriminated against reviews may include statistical analysis African-American and Hispanic of lending data in order to identify fair On June 25, 2018 participation borrowers by overcharging them on lending risks and appropriate areas of materials were mailed to potentially their mortgage loans. The consent order focus during the examination. Notably, eligible African-American borrowers required that Provident pay $9 million statistical analysis is only one factor identified as harmed by Bancorp in restitution. On November 2, 2017, taken into account by examination South’s alleged redlining discrimination participating African-American and teams that review small business in mortgage lending between 2011 and Hispanic borrowers who were lending for ECOA compliance. Reviews 2015 notifying them how to participate unlawfully overcharged on their typically include other methodologies to in the settlement, resulting from a 2016 mortgage loans were mailed checks. On assess compliance, including policy and enforcement action brought by the November 6, 2018, the Bureau procedure reviews, interviews with Bureau and Justice Department against completed the process for the mailing of management and staff, and reviews of Bancorp South for alleged redlining and remuneration checks, totaling $9 individual loan files. pricing discrimination in mortgage million, plus accrued interest, to eligible 6.0 Fair Lending Enforcement lending.41 borrowers.43 In addition to supervision, the Fifth Third Bank 6.1.2 ECOA Referrals to the Bureau’s enforcement function is Department of Justice another tool to protect consumers. The On December 17, 2018, participating The Bureau must refer to the Justice Bureau conducts investigations of African-American and Hispanic Department (DOJ) a matter when it has potential violations of HMDA and borrowers, whom Fifth Third ECOA, and if it believes a violation has overcharged for their auto loans, were 42 Consent Order, In re Fifth Third Bank, CFPB occurred, can file a complaint either mailed checks totaling $12 million, plus No. 2015–CFPB–0024 (Sept. 28, 2015), https:// through its administrative enforcement accrued interest, resulting from a 2015 www.consumerfinance.gov/about-us/newsroom/ process or in federal court. In 2018, the enforcement action brought by the cfpb-takes-action-against-fifth-third-bank-for-auto- Bureau opened and continued a number Bureau and the Justice Department lending-discrimination-and-illegal-credit-card- practices/. of fair-lending-related investigations, 43 Patrice Alexander Ficklin, African-American 40 15 U.S.C. 1691e(g). and Hispanic borrowers harmed by Provident will 39 Equal Credit Opportunity Act (ECOA) Baseline 41 Consent Order, United States of America and receive $9 million in compensation, Consumer Review Procedures (April 2019), https:// Consumer Financial Protection Bureau v. Bancorp Financial Protection Bureau (Nov. 2, 2017), https:// www.consumerfinance.gov/policy-compliance/ South Bank, CFPB No. 1:16cv118 (July 25, 2016) www.consumerfinance.gov/about-us/blog/african- guidance/supervision-examinations/equal-credit- https://www.consumerfinance.gov/documents/519/ american-and-hispanic-borrowers-harmed- opportunity-act-ecoa-baseline-review-procedures/. 201606_cfpb_bancorpSouth-consent-order.pdf. provident-will-receive-9-million-compensation/.

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reason to believe that a creditor has The Bureau also belongs to a standing under Section 704 of ECOA are engaged in a pattern or practice of working group of federal agencies—with discussed in this section. lending discrimination in violation of the DOJ, HUD, and FTC—that meets 8.2 Public Enforcement Actions ECOA.44 The Bureau also may refer regularly to discuss issues relating to other potential ECOA violations to the fair lending enforcement. These The agencies charged with DOJ.45 In 2018, the Bureau did not refer agencies constitute the Interagency administrative enforcement of ECOA any ECOA violations to the Justice Working Group on Fair Lending under Section 704 are as follows: Department. Enforcement. The agencies use these 1. CFPB; meetings to discuss fair lending 6.1.3 Pending Fair Lending developments and trends, 2. Federal Deposit Insurance Investigations methodologies for evaluating fair Corporation (FDIC); In 2018, the Bureau had a number of lending risks and violations, and 3. Federal Reserve Board (FRB); ongoing fair lending investigations of coordination of fair lending enforcement 4. National Credit Union institutions involving a variety of efforts. In addition to these interagency Administration (NCUA); consumer financial products. One key working groups, we meet periodically 5. Office of the Comptroller of the area on which the Bureau focused its and on an ad hoc basis with the Justice Currency (OCC); 50 fair lending enforcement efforts was Department and prudential regulators to 6. Agricultural Marketing Service addressing potential discrimination in coordinate the Bureau’s fair lending (AMS) of the U.S. Department of mortgage lending, including the work. Agriculture (USDA),51 unlawful practice of redlining. At the In 2018, the Bureau chaired the FFIEC end of 2018, the Bureau had a number HMDA/Community Reinvestment Act 7. Department of Transportation of pending investigations in this and Data Collection Subcommittee, a (DOT); other areas. subcommittee of the FFIEC Task Force 8. Farm Credit Administration (FCA); on Consumer Compliance (Task Force), 9. Federal Trade Commission (FTC); 7.0 Interagency Coordination that oversees FFIEC projects and programs involving HMDA data 10. Securities and Exchange 7.1 Interagency Coordination and Commission (SEC); and Engagement collection and dissemination, the preparation of the annual FFIEC budget 11. Small Business Administration In 2018, the Office of Fair Lending for processing services, and the (SBA).52 coordinated the Bureau’s fair lending development and implementation of In 2018, none of the eleven ECOA regulatory, supervisory, and other related HMDA processing projects enforcement agencies brought public enforcement activities with those of as directed by the Task Force. enforcement actions for violations of other federal agencies and state ECOA. regulators to promote consistent, 8. Interagency Reporting on ECOA and efficient, and effective enforcement of HMDA Below is an overview of the year-to- year ECOA enforcement actions since federal fair lending laws.46 This The law requires the Bureau to file a 2012: interagency engagement seeks to report to Congress annually describing address current and emerging fair the administration of its functions under Total lending risks. ECOA, summarizing public enforcement Reporting year enforcement The Bureau, along with the Federal actions taken by other agencies with matters Trade Commission (FTC), Department of administrative enforcement Housing and Urban Development responsibilities under ECOA, and 2012 ...... 1 (HUD), Federal Deposit Insurance providing an assessment of the extent to 2013 ...... 26 Corporation (FDIC), Federal Reserve 2014 ...... 2 which compliance with ECOA has been 2015 ...... 5 Board (FRB), National Credit Union 48 achieved. In addition, the Bureau’s 2016 ...... 3 Administration (NCUA), Office of the annual HMDA reporting requirement 2017 ...... 1 Comptroller of the Currency (OCC), calls for the Bureau, in consultation 2018 ...... 0 Department of Justice (DOJ), and the with HUD, to report annually on the Federal Housing Finance Agency utility of HMDA’s requirement that 8.1.2 Violations Cited During ECOA (FHFA), comprise the Interagency Task covered lenders itemize certain Examinations Force on Fair Lending.47 The Task Force mortgage loan data.49 meets regularly to discuss fair lending Among institutions examined for enforcement efforts, share current 8.1 Reporting on ECOA Enforcement compliance with ECOA and Regulation methods of conducting supervisory and The enforcement efforts and B, the FFIEC agencies reported that the enforcement fair lending activities, and compliance assessments made by all the most frequently-cited violations were as coordinate fair lending policies. agencies assigned enforcement authority follows:

44 15 U.S.C. 1691e(g). Union Administration (NCUA), the Office of the visited April 5, 2018). The State Liaison Committee 45 Id. Comptroller of the Currency (OCC), and the Bureau was added to FFIEC in 2006 as a voting member. 46 Dodd-Frank Act section 1013(c)(2)(B) (codified of Consumer Financial Protection (the Bureau) 51 The Grain Inspection, Packers and Stockyards at 12 U.S.C. 5493(c)(2)(B)). comprise the FFIEC. The FFIEC is a ‘‘formal Administration (GIPSA) was eliminated as a stand- interagency body empowered to prescribe uniform 47 In early 2019, the Bureau assumed the role of alone agency within USDA in 2017. The functions principles, standards, and report forms for the chairing the Task Force. previously performed by GIPSA have been federal examination of financial institutions’’ by the 48 15 U.S.C. 1691f. member agencies listed above and the State Liaison incorporated into the Agricultural Marketing 49 12 U.S.C. 2807. Committee ‘‘and to make recommendations to Service (AMS), and ECOA reporting now comes 50 Collectively, the Board of Governors of the promote uniformity in the supervision of financial from the Packers and Stockyards Division, Fair Federal Reserve System (FRB), the Federal Deposit institutions.’’ Federal Financial Institutions Trade Practices Program, AMS. Insurance Corporation (FDIC), the National Credit Examination Council, http://www.ffiec.gov (last 52 15 U.S.C. 1691c.

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TABLE 1—REGULATION B VIOLATIONS CITED BY FFIEC AGENCIES: 2018

FFIEC agencies reporting Regulation B violations: 2018

The Bureau, FDIC, FRB, NCUA, OCC ..... 12 CFR 1002.4(a): Discrimination on a prohibited basis in a credit transaction. 12 CFR 1002.9(a)(1), (a)(2), (b)(2), (c): Failure to provide notice to the applicant 30 days after re- ceiving a completed application concerning the creditor’s approval of, counteroffer or adverse ac- tion on the application; failure to provide appropriate notice to the applicant 30 days after taking adverse action on an incomplete application; failure to provide sufficient information in an adverse action notification, including the specific reasons for the action taken. 12 CFR 1002.14(a)(2): Failure to routinely provide an applicant with a copy of all appraisals and other written valuations developed in connection with an application for credit that is to be secured by a first lien on a dwelling.

TABLE 2—REGULATION B VIOLATIONS CITED BY OTHER ECOA AGENCIES: 2017

Other ECOA agencies Regulation B violations: 2018

FCA ...... 12 CFR 1002.9(a)(1)(i), (a)(2)(i), (b)(1): Failure to provide notice to the applicant 30 days after re- ceiving a completed application concerning the creditor’s approval of, counteroffer or adverse ac- tion on the application; failure to provide sufficient information in an adverse action notification, in- cluding the specific reasons for the action taken; failure to provide ECOA notice. 12 CFR 1002.13: Failure to request and collect information for monitoring purposes.

The AMS, SEC and the SBA reported ECOA. The NCUA made its referral on 8.3 Reporting on the Home Mortgage that they received no complaints based the basis of marital status Disclosure Act on ECOA or Regulation B in 2018. In discrimination. 2018, the DOT reported that it received The Bureau’s annual HMDA reporting Below is a year-to-year overview of requirement calls for the Bureau, in a ‘‘small number of consumer inquiries ECOA referrals to DOJ: or complaints concerning credit matters consultation with HUD, to report possibly covered by ECOA,’’ which it Number of annually on the utility of HMDA’s ‘‘processed informally.’’ The FTC is an Year referrals requirement that covered lenders enforcement agency and does not itemize loan data in order to disclose conduct compliance examinations. 2012 ...... 12 the number and dollar amount of certain 2013 ...... 24 mortgage loans and applications, 8.2 Referrals to the Department of 2014 ...... 18 grouped according to various Justice 2015 ...... 16 characteristics.53 The Bureau, in In 2018, one FFIEC agency, the 2016 ...... 20 consultation with HUD, finds that 2017 ...... 11 NCUA, made a referral to the DOJ 2018 ...... 1 itemization and tabulation of these data involving discrimination in violation of furthers the purposes of HMDA.

APPENDIX A: DEFINED TERMS

Term Definition

AMS ...... Agricultural Marketing Service of the U.S. Department of Agriculture. Bureau ...... The Bureau of Consumer Financial Protection. CMS ...... Compliance Management System. Dodd-Frank Act ...... The Dodd-Frank Wall Street Reform and Consumer Protection Act. DOJ ...... The U.S. Department of Justice. DOT ...... The U.S. Department of Transportation. ECOA ...... The Equal Credit Opportunity Act. EGRRCPA ...... Economic Growth, Regulatory Relief, and Consumer Protection Act. FCA ...... Farm Credit Administration. FDIC ...... Federal Deposit Insurance Corporation. Federal Reserve Board or FRB ...... Board of Governors of the Federal Reserve System.

53 See 12 U.S.C. 2807.

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APPENDIX A: DEFINED TERMS—Continued

Term Definition

FFIEC ...... Federal Financial Institutions Examination Council—the FFIEC member agencies are the Board of Governors of the Federal Reserve System (FRB), the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA), the Office of the Comptroller of the Cur- rency (OCC), and the Bureau of Consumer Financial Protection (The Bureau). The State Liaison Committee was added to FFIEC in 2006 as a voting member. FTC ...... Federal Trade Commission. GIPSA ...... Grain Inspection, Packers and Stockyards Administration of the U.S. Department of Agriculture. HMDA ...... The Home Mortgage Disclosure Act. HUD ...... The U.S. Department of Housing and Urban Development. NCUA ...... The National Credit Union Administration. OCC ...... Office of the Comptroller of the Currency. SBA ...... Small Business Administration. SEC ...... Securities and Exchange Commission. USDA ...... U.S. Department of Agriculture.

Kathleen L. Kraninger, the MFRC are specified in 10 U.S.C. Dated: July 2, 2019. Director, Bureau of Consumer Financial 1781a(d). The MFRC consists of 18 Aaron T. Siegel, Protection. members, and 3 members are appointed Alternate OSD Federal Register Liaison [FR Doc. 2019–14384 Filed 7–5–19; 8:45 am] from among representatives of military Officer, Department of Defense. BILLING CODE 4810–AM–P family organizations, including military [FR Doc. 2019–14430 Filed 7–5–19; 8:45 am] family organizations of families of BILLING CODE 5001–06–P members of the regular components, DEPARTMENT OF DEFENSE and of families of members of the reserve components. It is these three DEPARTMENT OF DEFENSE Office of the Secretary positions that the DoD is soliciting Office of the Secretary nominations. Department of Defense Military Family [Docket ID: DOD–2019–OS–0083] Readiness Council Member Forward Nominations for Solicitation Membership: This notice is a Proposed Collection; Comment solicitation to fill the three military Request AGENCY: Under Secretary of Defense for family organization vacancies on the Personnel and Readiness, Department of AGENCY: MFRC. To be considered for Office of the DoD Chief Defense (DoD). Information Officer, DoD. nomination, please forward a biography ACTION: Notice of Federal Advisory ACTION of the nominee describing the : Information collection notice. Committee member solicitation. professional background and SUMMARY: In compliance with the SUMMARY: The DoD announces the qualifications meeting the above stated Paperwork Reduction Act of 1995, the following Federal Advisory Committee criteria. Include a separate detailed Office of the DoD Chief Information member solicitation for the Department description of the nominee’s military Officer announces a proposed public of Defense Military Family Readiness family organization, its purpose and information collection and seeks public Council (MFRC). goals, its programs and work concerning comment on the provisions thereof. FOR FURTHER INFORMATION CONTACT: military families, membership size and Comments are invited on: Whether the William Story, (571) 372–5345 (Voice), makeup (officer, enlisted, reserve, proposed collection of information is (571) 372–0884 (Facsimile), OSD guard, both), and recent initiatives. necessary for the proper performance of the functions of the agency, including Pentagon OUSD P–R Mailbox Family Submissions may be by email: Readiness Council, osd.pentagon.ousd- whether the information shall have osd.pentagon.ousd-p-r.mbx.family- practical utility; the accuracy of the p-r.mbx.family-readiness-council@ [email protected] or by FAX mail.mil (Email). Mailing address is: agency’s estimate of the burden of the (571) 372–0884 to the MFRC’s Office of the Deputy Assistant Secretary proposed information collection; ways Designated Federal Officer no later than of Defense (Military Community & to enhance the quality, utility, and 11:59 p.m. EST Friday, July 26, 2019. Family Policy), Office of Family clarity of the information to be Readiness Policy, 4800 Mark Center Note: Nominees must be U.S. citizens and collected; and ways to minimize the Drive, Alexandria, VA 22350–2300, cannot be registered federal lobbyists. burden of the information collection on Room 3G15. A copy of this solicitation Individuals appointed by the Secretary of respondents, including through the use notice will be posted on the MFRC Defense to serve on the MFRC will be of automated collection techniques or website: https:// appointed as experts and consultants under other forms of information technology. www.militaryonesource.mil/leaders- the authority of 5 U.S.C. 3109 to serve as DATES: Consideration will be given to all service-providers/military-family- special governmental employee members and comments received by September 6, readiness-council. will be required to comply with all DoD 2019. ethics requirements. Nominees must pass a SUPPLEMENTARY INFORMATION: Consistent ADDRESSES: You may submit comments, security background check. In addition, those with the Federal Advisory Committee identified by docket number and title, appointed will serve without compensation Act (FACA) (5 U.S.C., Appendix), the by any of the following methods: except for travel and per diem in conjunction DoD announces the following Federal Federal eRulemaking Portal: http:// with official MFRC business. Advisory Committee member www.regulations.gov. Follow the solicitation for the MFRC. The duties of instructions for submitting comments.

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Mail: Department of Defense, Office of DEPARTMENT OF EDUCATION The Governing Board recently the Chief Management Officer, received confirmation from the National Directorate for Oversight and National Assessment Governing Board Center for Education Statistics (NCES) Compliance, 4800 Mark Center Drive, that its decision for the NAEP Alliance Mailbox #24, Suite 08D09, Alexandria, Announcement of a Closed Contracts, expected to be awarded by VA 22350–1700. Teleconference Meeting early July 2019, include unanticipated Instructions: All submissions received AGENCY: National Assessment changes to actual and future expected must include the agency name, docket Governing Board, U.S. Department of costs for the NAEP Assessment number and title for this Federal Education. Schedule, which is established by the Register document. The general policy ACTION: Announcement of a closed Governing Board. for comments and other submissions teleconference meeting. July 19, 2019 Full Board Teleconference from members of the public is to make Meeting these submissions available for public SUMMARY: This notice sets forth the viewing on the internet at http:// agenda for a July 19, 2019 closed On Friday, July 19, 2019, the www.regulations.gov as they are teleconference meeting of the National Governing Board will convene in closed received without change, including any Assessment Governing Board (hereafter session from 2:00 p.m. to 3:30 p.m. personal identifiers or contact referred to as Governing Board). This Eastern Time. During the closed session, information. notice provides information to members the Governing Board will receive a of the public who may be interested in briefing from Peggy Carr, Associate FOR FURTHER INFORMATION CONTACT: To reviewing the closed meeting report of Commissioner, NCES, on the detailed request more information on this the meeting 10 working days following program costs through the year 2030, proposed information collection or to the meeting. Notice of this meeting is and the contract award amounts for obtain a copy of the proposal and required under the Federal Advisory activities through FY 2025, contract associated collection instruments, Committee Act (FACA). options costs, and Independent please write to DoD’s DIB Cybersecurity Government Costs Estimates (IGCE) for DATES: July 19, 2019 from 2:00 p.m. to Activities Office ATTN: Zachary Gifford 3:30 p.m. Eastern Standard Time. future assessment years. The Governing 1550 Crystal Dr., Suite 1000–A, Board must consider the IGCEs as it ADDRESSES: Teleconference meeting. Arlington, VA 22202 or call (703) 604– revises the NAEP Assessment Schedule 3167, toll free (855) 363–4227. FOR FURTHER INFORMATION CONTACT: through 2030 to account for anticipated Munira Mwalimu, Executive Officer/ costs and budget constraints. Therefore, SUPPLEMENTARY INFORMATION: Designated Federal Official for the Title; Associated Form; and OMB during closed session, the Governing Governing Board, 800 North Capitol Board will need to deliberate on Number: DoD’s Defense Industrial Base Street NW, Suite 825, Washington, DC (DIB) Cybersecurity (CS) Activities estimated future cost details of the 20002, telephone: (202) 357–6938, fax: NAEP Schedule of Assessments and Cyber Incident Reporting; OMB Control (202) 357–6945, email: Number 0704–0489. will take action on revising the [email protected]. Schedule of Assessments based on the Needs and Uses: The information SUPPLEMENTARY INFORMATION: outcome of the Board’s deliberations. collection requirement is necessary to Statutory Authority and Function: Public disclosure of independent support mandatory cyber incident The Governing Board is established government cost estimates for future reporting requirements under 10 U.S.C. under the National Assessment of contract costs and internal NAEP budget Section 393 (formerly Pub. L. 112–239, Educational Progress Authorization Act, decisions would significantly impede National Defense Authorization Act for Title III of Public Law 107–279. The implementation of the NAEP assessment Fiscal Year 2013, Section 941, Reports Governing Board is established to program if conducted in open session. to Department of Defense on formulate policy for NAEP administered Such matters are protected by penetrations of networks and by the National Center for Education exemption 9(B) of § 552b(c) of Title 5 of information systems of certain Statistics (NCES). The Governing the United States Code. contractors) and 10 U.S.C. Section 391 Board’s responsibilities include the The July 19, 2019 teleconference (formerly Pub. L. 113–58, National following: Selecting subject areas to be meeting will adjourn at 3:30 p.m. Defense Authorization Act for Fiscal assessed, developing assessment Access to Records of the Meeting: Year 2015, Section 1632, Reporting on frameworks and specifications, Pursuant to FACA requirements, the Cyber Incidents with Respect to developing appropriate student public may also inspect the meeting Networks and Information Systems of achievement levels for each grade and materials at www.nagb.gov no later than Operationally Critical Contractors). subject tested, developing standards and August 2, 2019, by 10:00 a.m. EST. Affected Public: Business or other for- procedures for interstate and national Reasonable Accommodations: The profit and not for profit institutions. comparisons, improving the form and NAGB website is accessible to Annual Burden Hours: 350,000. use of NAEP, developing guidelines for individuals with disabilities. Written Number of Respondents: 10,000. reporting and disseminating results, and comments may be submitted Responses per Respondent: 5. releasing initial NAEP results to the electronically or in hard copy to the Annual Responses: 50,000. public. attention of the Executive Officer/ Average Burden per Response: 7 The funding cycle limitation require Designated Federal Official (see contact hours. the Governing Board to amend the information noted above). Information Frequency: On occasion. NAEP Assessment Schedule, adopted on the Governing Board and its work during the May 2019 quarterly board can be found at www.nagb.gov. Dated: July 2, 2019. meeting. The Governing Board action on Electronic Access to this Document: Aaron T. Siegel, updating the NAEP Assessment The official version of this document is Alternate OSD Federal Register Liaison Schedule, given information confirmed the document published in the Federal Officer, Department of Defense. through the contract process, cannot Register. Internet access to the official [FR Doc. 2019–14440 Filed 7–5–19; 8:45 am] occur until the expected contract award edition of the Federal Register and the BILLING CODE 5001–06–P date. Code of Federal Regulations is available

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via the Federal Digital System at: Room 278–64, Washington, DC 20202– this competition includes a competitive www.gpo.gov/fdsys. At this site you can 6450. Telephone: (202) 453–6195. preference priority that encourages view this document, as well as all other Email: [email protected]. applicants to propose strategies that are documents of this Department If you use a telecommunications supported by promising evidence. published in the Federal Register, in device for the deaf (TDD) or a text Priorities: This notice contains three text or Adobe Portable Document telephone (TTY), call the Federal Relay competitive preference priorities and Format (PDF). To use PDF, you must Service (FRS), toll-free, at 1–800–877– one invitational priority. Competitive have Adobe Acrobat Reader, which is 8339. Preference Priority 1 is from the available free at the Adobe website. You SUPPLEMENTARY INFORMATION: Supplemental Priorities. In accordance may also access documents of the with 34 CFR 75.105(b)(2)(ii) and (iv), Department published in the Federal I. Funding Opportunity Description Competitive Preference Priority 2 is Register by using the article search Purpose of Program: The GEAR UP from section 404A(b)(3) of the HEA (20 feature at: www.federalregister.gov. program is a discretionary grant U.S.C. 1070a-21(b)(3)) and the GEAR UP Specifically, through the advanced program that encourages eligible entities program regulations (34 CFR 694.19). search feature at this site, you can limit to provide support, and maintain a Competitive Preference Priority 3 is your search to documents published by commitment to eligible low-income from 34 CFR 75.226. the Department. students, including students with Competitive Preference Priorities: For Authority: Pub. L. 107–279, Title III— disabilities, to assist the students in FY 2019 and any subsequent year in National Assessment of Educational Progress obtaining a secondary school diploma which we make awards from the list of § 301. (or its recognized equivalent) and to unfunded applications from this competition, these priorities are Lisa M. Stooksberry, prepare for and succeed in postsecondary education. Under the competitive preference priorities. Under Deputy Executive Director, National GEAR UP program, the Department 34 CFR 75.105(c)(2)(i), we award up to Assessment Governing Board (NAGB), U.S. an additional two points to an Department of Education. awards grants to two types of entities: application, depending on how well the [FR Doc. 2019–14405 Filed 7–5–19; 8:45 am] (1) States and (2) eligible partnerships. In this notice, the Department invites application meets each of these BILLING CODE P applications for State grants only. competitive preference priorities, for a Required services under the GEAR UP maximum of six additional points. DEPARTMENT OF EDUCATION program are specified in sections These priorities are: 404D(a) of the Higher Education Act of Competitive Preference Priority 1— Applications for New Awards; Gaining 1965, as amended (HEA) (20 U.S.C. Promoting STEM Education, With a Early Awareness and Readiness for 1070a–24(a)), and permissible services Particular Focus on Computer Science Undergraduate Programs (State under the GEAR UP program are (Up to two points). Grants) specified in section 404D(b) and (c) of Projects designed to improve student the HEA (20 U.S.C. 1070a–24(b) and achievement or other educational AGENCY: Office of Postsecondary (c)). Grantee activities must include outcomes in science, technology, Education, Department of Education. providing financial aid information for engineering, math, or computer science ACTION: Notice. postsecondary education, encouraging (as defined in this notice). These enrollment in rigorous and challenging projects must address creating or SUMMARY: The Department of Education coursework in order to reduce the need expanding partnerships between (Department) is issuing a notice inviting for remediation at the postsecondary schools, local educational agencies, applications for new awards for fiscal level, implementing activities to State educational agencies, businesses, year (FY) 2019 for the Gaining Early improve the number of participating not-for-profit organizations, or Awareness and Readiness for students who obtain a secondary school institutions of higher education (IHEs) Undergraduate Programs (GEAR UP) diploma and who complete applications to give students access to internships, State Grants, Catalog of Federal for and enroll in a program of apprenticeships, or other work-based Domestic Assistance (CFDA) number postsecondary education, and providing learning experiences in STEM fields, 84.334S. This notice relates to the scholarships as specified in section including computer science. approved information collection under 404E of the HEA. Additional Competitive Preference Priority 2 (Up OMB control number 1840–0821, permissible activities for State grantees to two points). Application for GEAR UP State Grants. are specified in sections 404D(b) and (c) We give priority to an eligible DATES: of the HEA. applicant for a State GEAR UP grant that Applications Available: July 8, 2019. Background: On March 2, 2018, the has: (a) Carried out a successful State Deadline for Transmittal of Secretary published in the Federal GEAR UP grant prior to August 14, Applications: August 7, 2019. Register the Secretary’s Final 2008, determined on the basis of data ADDRESSES: For the addresses for Supplemental Priorities and Definitions (including outcomes data) submitted by obtaining and submitting an for Discretionary Grant Programs (83 FR the applicant as part of its annual and application, please refer to our Common 9096) (Supplemental Priorities). In order final performance reports from prior Instructions for Applicants to to advance the Secretary’s priorities, GEAR UP State grants administered by Department of Education Discretionary this competition contains a competitive the applicant and the applicant’s history Grant Programs, published in the preference priority that focuses on of compliance with applicable statutory Federal Register on February 13, 2019 improving student achievement or other and regulatory requirements; and (b) a (83 FR 6003), and available at educational outcomes in science, prior demonstrated commitment to early www.govinfo.gov/content/pkg/FR-2019- technology, engineering, or mathematics intervention leading to college access 02-13/pdf/2019-02206.pdf. (STEM), including computer science. In through collaboration and replication of FOR FURTHER INFORMATION CONTACT: addition, consistent with the successful strategies. Craig Pooler, U.S. Department of Administration’s interest in allocating Competitive Preference Priority 3 (Up Education, 400 Maryland Avenue SW, funding to evidence-based practices, to two points).

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Applications supported by evidence Internal Revenue Code, as amended by spreadsheets, or presentation software; that meets the definition of ‘‘promising the Tax Cuts and Jobs Act (Pub. L. 115– or using computers in the study and evidence’’ in 34 CFR 77.1(c). 97). An applicant must— exploration of unrelated subjects. Note 1: To address the priority, for up to (i) Provide the census tract number of Demonstrates a rationale means a key two authorized activities, an applicant may the Qualified Opportunity Zone(s) in project component included in the submit one study or What Works which it proposes to serve individuals project’s logic model is informed by Clearinghouse (WWC) publication that it or otherwise provide services; and research or evaluation findings that believes supports the implementation of the (ii) Describe how the applicant will suggest the project component is likely proposed activity and that meets the serve individuals or otherwise provide to improve relevant outcomes. promising evidence standard. Non-Federal services in the Qualified Opportunity Experimental study means a study peer reviewers will evaluate studies cited by Zone(s). that is designed to compare outcomes the applicants to determine if they meet the (b) The applicant is located in a between two groups of individuals requirements for promising evidence, as well Qualified Opportunity Zone. The as whether they are sufficiently aligned with (such as students) that are otherwise (relevant to) the proposed activity. applicant must provide the census tract equivalent except for their assignment Applicants will be awarded one point for number of the Qualified Opportunity to either a treatment group receiving a each activity supported by a relevant citation Zone in which it is located. If the project component or a control group that meets the promising evidence standard, applicant has multiple locations, or if that does not. Randomized controlled for a maximum number of two points. the applicant’s location overlaps with a trials, regression discontinuity design Cited studies may include both those Qualified Opportunity Zone, the studies, and single-case design studies already listed in the Department’s WWC applicant must demonstrate that its are the specific types of experimental Database of Individual Studies (see https:// proximity to a Qualified Opportunity ies.ed.gov/ncee/wwc/StudyFindings) and studies that, depending on their design Zone is critical to the proposed project. and implementation (e.g., sample those that have not yet been reviewed by the (c) The applicant has received, or will WWC. Studies listed in the WWC Database attrition in randomized controlled trials of Individual Studies do not necessarily receive by 30 days after being awarded and regression discontinuity design satisfy any or all of the criteria needed to a grant, financial assistance from a studies), can meet What Works meet the promising evidence standard. Qualified Opportunity Fund under Clearinghouse (WWC) standards Therefore, it is important that applicants section 1400Z–2 of the Internal Revenue without reservations as described in the themselves ascertain the suitability of the Code, as amended by the Tax Cuts and WWC Handbook: study for the evidence priority. Any Jobs Act, for the acquisition, proposed studies must be cited in the section (i) A randomized controlled trial construction, or renovation of real or employs random assignment of, for of the application that addresses Competitive other tangible property directly related Preference Priority 3. example, students, teachers, classrooms, to its proposed project. An applicant or schools to receive the project Note 2: As they consider the activities, they must— component being evaluated (the (i) Identify the Qualified Opportunity propose to implement in their GEAR UP treatment group) or not to receive the Fund from which it has received or will projects and how to respond to this project component (the control group). receive financial assistance; and competitive preference priority, we (ii) A regression discontinuity design encourage applicants to review research (ii) Describe how the applicant will related to authorized GEAR UP activities to use the financial assistance for its study assigns the project component identify evidence that meets the promising proposed project. being evaluated using a measured evidence standard. Definitions: These definitions are variable (e.g., assigning students reading below a cutoff score to tutoring or For State grantees, required GEAR UP from the Supplemental Priorities and 34 developmental education classes) and services are specified in sections CFR 77.1(c). controls for that variable in the analysis 404D(a) of the HEA (20 U.S.C. 1070a– Computer science means the study of of outcomes. 24(a)), and permissible services under computers and algorithmic processes (iii) A single-case design study uses the GEAR UP program are specified in and includes the study of computing observations of a single case (e.g., a section 404D(b) and (c) of the HEA (20 principles and theories, computational student eligible for a behavioral U.S.C. 1070a–24(b) and (c)). thinking, computer hardware, software Invitational Priority: For FY 2019 and design, coding, analytics, and computer intervention) over time in the absence any subsequent year in which we make applications. and presence of a controlled treatment awards from the list of unfunded Computer science often includes manipulation to determine whether the applications from this competition, this computer programming or coding as a outcome is systematically related to the priority is an invitational priority. tool to create software, including treatment. Under 34 CFR 75.105(c)(1), we do not applications, games, websites, and tools Logic model (also referred to as a give an application that meets this to manage or manipulate data; or theory of action) means a framework invitational priority a competitive or development and management of that identifies key project components absolute preference over other computer hardware and the other of the proposed project (i.e., the active applications. electronics related to sharing, securing, ‘‘ingredients’’ that are hypothesized to This priority is: and using digital information. be critical to achieving the relevant Spurring Investment in Qualified In addition to coding, the expanding outcomes) and describes the theoretical Opportunity Zones. field of computer science emphasizes and operational relationships among the Under this priority, an applicant must computational thinking and key project components and relevant demonstrate one or more of the interdisciplinary problem-solving to outcomes. following: equip students with the skills and Project component means an activity, (a) The area in which the applicant abilities necessary to apply computation strategy, intervention, process, product, proposes to serve individuals or in our digital world. practice, or policy included in a project. otherwise provide services overlaps Computer science does not include Evidence may pertain to an individual with a Qualified Opportunity Zone, as using a computer for everyday activities, project component or to a combination designated by the Secretary of the such as browsing the internet; use of of project components (e.g., training Treasury under section 1400Z–1 of the tools like word processing, teachers on instructional practices for

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English learners and follow-on coaching Applicable Regulations: (a) The District of Columbia, Guam, American for these teachers). Education Department General Samoa, the United States Virgin Islands, Promising evidence means that there Administrative Regulations (EDGAR) in the Commonwealth of the Northern is evidence of the effectiveness of a key 34 CFR parts 75, 77, 79, 81, 82, 84, 97, Mariana Islands, and the Freely project component in improving a 98, and 99. (b) The Office of Associated States. Per Congressional relevant outcome, based on a relevant Management and Budget Guidelines to direction in the Explanatory Statement finding from one of the following: Agencies on Governmentwide to the Department of Education (i) A practice guide prepared by WWC Debarment and Suspension Appropriations Act, 2019 (Pub. L. 115– reporting a ‘‘strong evidence base’’ or (Nonprocurement) in 2 CFR part 180, as 245), only States without an active State ‘‘moderate evidence base’’ for the adopted and amended as regulations of GEAR UP grant, or States that have an corresponding practice guide the Department in 2 CFR part 3485. (c) active State GEAR UP grant that is recommendation; The Uniform Administrative scheduled to end prior to October 1, (ii) An intervention report prepared Requirements, Cost Principles, and 2019, are eligible to receive a new State by the WWC reporting a ‘‘positive Audit Requirements for Federal Awards GEAR UP award in this competition. effect’’ or ‘‘potentially positive effect’’ in 2 CFR part 200, as adopted and 2.a. Cost Sharing or Matching: Section on a relevant outcome with no reporting amended as regulations of the 404C(b)(1) of the HEA (20 U.S.C. 1070a– of a ‘‘negative effect’’ or ‘‘potentially Department in 2 CFR part 3474. (d) The 23(b)(1)) requires grantees under this negative effect’’ on a relevant outcome; regulations for this program in 34 CFR program to provide from State, local, or part 694. institutional, or private funds, not less than 50 percent of the cost of the (iii) A single study assessed by the II. Award Information Department, as appropriate, that— program (or one dollar of non-Federal (A) Is an experimental study, a quasi- Type of Award: Discretionary grants. funds for every one dollar of Federal experimental design study, or a well- Estimated Available Funds: The funds awarded), which may be provided designed and well-implemented Department of Education in cash or in-kind. The provision also correlational study with statistical Appropriations Act, 2019 provided specifies that the match may be accrued controls for selection bias (e.g., a study $360,000,000 for the GEAR UP program over the full duration of the grant award using regression methods to account for for FY 2019, of which we intend to use period, except that the grantee must differences between a treatment group an estimated $28,276,000 for new GEAR make substantial progress towards and a comparison group); and UP State awards. meeting the matching requirement in Contingent upon the availability of each year of the grant award period. (B) Includes at least one statistically Section 404C(c) of the HEA provides significant and positive (i.e., favorable) funds and the quality of applications, we may make additional awards in that in-kind contributions may include effect on a relevant outcome. (1) the amount of the financial Quasi-experimental design study subsequent years from the list of unfunded applications from this assistance obligated under GEAR UP to means a study using a design that students from State, local, institutional, attempts to approximate an competition. Estimated Range of Awards: or private funds, (2) the amount of experimental study by identifying a tuition, fees, room or board waived or comparison group that is similar to the $2,500,000–$5,000,000. Estimated Average Size of Awards: reduced for recipients of financial treatment group in important respects. assistance under GEAR UP, (3) the This type of study, depending on design $3,535,000. Maximum Award: We will not make amount expended on documented, and implementation (e.g., establishment an award for a State grant exceeding targeted, long-term mentoring and of baseline equivalence of the groups $5,000,000 for a single budget period of counseling provided by volunteers or being compared), can meet WWC 12 months. Additionally, no funding paid staff of non-school organizations, standards with reservations, but cannot will be awarded for increases in budget including businesses, religious meet WWC standards without after the first 12-month budget period. organizations, community groups, reservations, as described in the WWC As described in 34 CFR 694.1, the postsecondary educational institutions, Handbook. Assistant Secretary for Postsecondary nonprofit and philanthropic Relevant outcome means the student Education may change the maximum organizations, and other organizations, outcome(s) or other outcome(s) the key amount through a notice published in and (4) equipment and supplies, cash project component is designed to the Federal Register. contributions from non-Federal sources, improve, consistent with the specific Estimated Number of Awards: 8. transportation expenses, in-kind or goals of the program. discounted program services, indirect What Works Clearinghouse Handbook Note: The Department is not bound by any costs, and facility usage. (WWC Handbook) means the standards estimates in this notice. Grantees must include a budget and procedures set forth in the WWC Project Period: Either 72 months or 84 detailing the source of the matching Procedures and Standards Handbook, months. funds and must provide an outline of Version 3.0 or Version 2.1 (incorporated Note: An applicant that wishes to seek the types of matching contributions for by reference, see 34 CFR 77.2). Study funding for a seventh project year (i.e., for a at least the first year of the grant in their findings eligible for review under WWC project period of 84 months), in order to grant applications. Consistent with 2 standards can meet WWC standards provide project services to GEAR UP students CFR 200.306(b), any matching funds without reservations, meet WWC through their first year of attendance at an must be an allowable use of funds standards with reservations, or not meet IHE, must propose to do so in the application consistent with the GEAR UP program WWC standards. WWC practice guides provided in response to this notice. requirements and the cost principles and intervention reports include detailed in subpart E of 2 CFR part 200, findings from systematic reviews of III. Eligibility Information and not included as a contribution for evidence as described in the Handbook 1. Eligible Applicants: States (as any other Federal award. documentation. defined in section 103(20) of the HEA b. Supplement-Not-Supplant: This Program Authority: 20 U.S.C. 1070a– (20 U.S.C. 1003(20)), which includes the program involves supplement, not 21–1070a–28. Commonwealth of Puerto Rico, the supplant funding requirements. Under

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section 404B(e) of the HEA (20 U.S.C. changes from which future cohorts of information clearly and concisely. 1070a–22(e)), grant funds awarded students will benefit; and Include your complete response to the under this program must be used to (i) Describes the sources of matching selection criteria, the invitational supplement, and not supplant, other funds that will enable the eligible entity priority, and Competitive Preference Federal, State, and local funds that to meet the matching requirement Priority 1 in the application narrative. would otherwise be expended to carry described in section 404C(b). Include your complete response to out activities assisted under this 4. Subgrantees: A grantee under this Competitive Preference Priority 2 on the program. competition may not award subgrants to Project Profile Form, which can be 3. General Application Requirements: entities to directly carry out project found in the information collection All applicants must meet the following activities described in its application. under OMB control number 1840–0821. application requirements in order to be IV. Application and Submission Include your response to Competitive considered for funding. The application Information Preference Priority 3 on the Evidence requirements are from section 404C(a) of Form (OMB 1894–0001), which can also the HEA (20 U.S.C. 1070a–23(a)). 1. Application Submission be found in the information collection In order for an eligible entity to Instructions: Applicants are required to under OMB control number 1840–0821. qualify for a grant under the GEAR UP follow the Common Instructions for Note: Applications that do not follow program, the eligible entity shall submit Applicants to Department of Education the formatting recommendations will to the Secretary an application for Discretionary Grant Programs, not be penalized. carrying out a GEAR UP program that— published in the Federal Register on We recommend the following (a) Describes the activities for which February 13, 2019 (83 FR 6003), and standards: assistance under this program is sought, available at www.govinfo.gov/content/ • A ‘‘page’’ is 8.5″ x 11″, on one side including how the eligible entity will pkg/FR-2019-02-13/pdf/2019-02206.pdf, only, with 1″ margins. carry out the required activities which contain requirements and • Double-space all text in the described in section 404D(a) of the HEA; information on how to submit an application narrative and single-space (b) Describes, in the case of an eligible application. titles, headings, footnotes, quotations, entity described in section 404A(c)(1) of 2. Intergovernmental Review: This references, and captions. the HEA, how the eligible entity will program is subject to Executive Order • Use a 12-point font. meet the requirements of section 404E 12372 and the regulations in 34 CFR • Use an easily readable font such as of the HEA; part 79. However, under 34 CFR 79.8(a), Times New Roman, Courier, Courier (c) Provides assurances that adequate we waive intergovernmental review in New, or Arial. administrative and support staff will be order to make awards by the end of FY Other requirements concerning the responsible for coordinating the 2019. content of an application, together with activities described in section 404D of 3. Funding Restrictions: We specify the forms you must submit, are in the the HEA; unallowable costs in subpart E of 2 CFR application package for this program. (d) Provides assurances that activities part 200. We reference regulations V. Application Review Information assisted under this program will not outlining funding restrictions in the displace an employee or eliminate a Applicable Regulations section of this 1. Selection Criteria: The selection position at a school assisted under this notice. criteria for this competition are from 34 program, including a partial Under HEA section 404E(b)(1), a State CFR 75.210 and section 404D(a) of the displacement such as a reduction in must use not less than 25 percent and HEA. hours, wages, or employment benefits; not more than 50 percent of the grant a. Need for the project (15 points). funds for GEAR UP project activities (e) Describes, in the case of an eligible (i) The Secretary considers the need described in HEA section 404D,1 with entity described in section 404A(c)(1) of for the proposed project. the remainder of grant funds spent on the HEA that chooses to use a cohort (ii) In determining the need for the scholarships to eligible GEAR UP approach, how the eligible entity will proposed project, the Secretary students described in HEA section 404E. define the cohorts of the students served considers: However, HEA section 404E(b)(2) by the eligible entity pursuant to section (A) The magnitude or severity of the permits the Secretary to allow a State to 404B(d) of the HEA, and how the problem to be addressed by the use more than 50 percent of grant funds eligible entity will serve the cohorts proposed project (up to 8 points); and received under this program for GEAR through grade 12, including— (B) The extent to which specific gaps UP project activities described in HEA (i) How vacancies in the program or weaknesses in services, section 404D if the State demonstrates under this program will be filled; and infrastructure, or opportunities have that it has another means of providing (ii) How the eligible entity will serve been identified and will be addressed by eligible GEAR UP students with the students attending different secondary the proposed project, including the financial assistance described in HEA schools; nature and magnitude of those gaps or section 404E and describes such means (f) Describes how the eligible entity weaknesses (up to 7 points). in the State’s application. will coordinate programs under this b. Quality of project design (25 4. Recommended Page Limit and program with other existing Federal, points). Format: The application narrative is State, or local programs to avoid (i) The Secretary considers the quality where you, the applicant, address the duplication and maximize the number of the design of the proposed project. selection criteria that reviewers use to of students served; (ii) In determining the quality of the assess your application. There is no (g) Provides such additional design of the proposed project, the page limit for the application narrative; assurances as the Secretary determines Secretary considers: however, we recommend no more than necessary to ensure compliance with the (A) The extent to which the goals, 50 pages, and that you present your requirements of this program; objectives, and outcomes to be achieved by the proposed project are clearly (h) Provides information about the 1 Excluding the provision of funds for activities that will be carried out by the postsecondary scholarships required by HEA specified and measurable (up to 10 eligible entity to support systemic section 404D(a)(4). points); and

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(B) The extent to which the proposed e. Quality of the management plan (10 (B) The extent to which the costs are project demonstrates a rationale (as points). reasonable in relation to the number of defined in this notice)(up to 15). (i) The Secretary considers the quality persons to be served and to the c. Quality of project services (15 of the management plan for the anticipated results and benefits (up to 5 points). proposed project. points); and (i) The Secretary considers the quality (ii) In determining the quality of the (C) The potential for continued of the services to be provided by the management plan for the proposed support of the project after Federal proposed project. project, the Secretary considers: funding ends, including, as appropriate, (ii) In determining the quality of the (A) The adequacy of the management the demonstrated commitment of services to be provided by the proposed plan to achieve the objectives of the appropriate entities to such support (up project, the Secretary considers the proposed project on time and within to 5 points). quality and sufficiency of strategies for budget, including clearly defined 2. Review and Selection Process: We ensuring equal access and treatment for responsibilities, timelines, and remind potential applicants that in eligible project participants who are milestones for accomplishing project reviewing applications in any members of groups that have tasks (up to 4 points); discretionary grant competition, the traditionally been underrepresented (B) The adequacy of procedures for Secretary may consider, under 34 CFR based on race, color, national origin, ensuring feedback and continuous 75.217(d)(3), the past performance of the gender, age, or disability (up to 5 improvement in the operation of the applicant in carrying out a previous points). proposed project (up to 2 points); award, such as the applicant’s use of (iii) In addition, the Secretary (C) The extent to which the time funds, achievement of project considers: commitments of the project director and objectives, and compliance with grant (A) The extent to which the project principal investigator and other key conditions. The Secretary may also services are likely to provide project personnel are appropriate and consider whether the applicant failed to comprehensive mentoring, outreach, adequate to meet the objectives of the submit a timely performance report or and supportive services to students, proposed project (up to 2 points); and submitted a report of unacceptable including the following activities: (D) How the applicant will ensure that quality. information regarding financial aid for a diversity of perspectives are brought to In addition, in making a competitive postsecondary education to bear in the operation of the proposed grant award, the Secretary requires participating students, encouraging project, including those of parents, various assurances including those student enrollment in rigorous and teachers, the business community, a applicable to Federal civil rights laws challenging curricula and coursework in variety of disciplinary and professional that prohibit discrimination in programs order to reduce the need for remedial fields, recipients or beneficiaries of or activities receiving Federal financial coursework at the postsecondary level, services, or others, as appropriate (up to assistance from the Department (34 CFR and improving the number of 2 points). 100.4, 104.5, 106.4, 108.8, and 110.23). f. Quality of the project evaluation (10 participating students who obtain a For this competition, a panel of non- points). Federal reviewers will review each secondary school diploma and complete (i) The Secretary considers the quality applications for and enroll in a program application in accordance with the of the evaluation to be conducted of the selection criteria in 34 CFR 75.217(d)(3), of postsecondary education (up to 5 proposed project. points); and as required by 20 U.S.C. 1070–a23(d). (ii) In determining the quality of the The individual scores of the reviewers (B) The extent to which the services project evaluation, the Secretary to be provided by the proposed project will be added and the sum divided by considers: the number of reviewers to determine involve the collaboration of appropriate (A) The extent to which the methods the peer review score received in the partners for maximizing the of evaluation include the use of review process. effectiveness of project services (up to 5 objective performance measures that are points). If there are insufficient funds for all clearly related to the intended outcomes applications with the same total scores, d. Quality of project personnel (10 of the project and will produce points). the Secretary will, to the extent quantitative and qualitative data to the practicable, consider the distribution of (i) The Secretary considers the quality extent possible (up to 4 points); grant awards based on the geographic of the personnel who will carry out the (B) The extent to which the methods distribution of such grant awards and proposed project. of evaluation will provide performance (ii) In determining the quality of feedback and permit periodic the distribution between urban and project personnel, the Secretary assessment of progress toward achieving rural applicants for the GEAR UP considers the extent to which the intended outcomes (up to 4 points); and program consistent with 20 U.S.C. applicant encourages applications for (C) The extent to which the evaluation 1070a-22(a)(3). employment from persons who are will provide guidance about effective 3. Risk Assessment and Specific members of groups that have strategies suitable for replication or Conditions: Consistent with 2 CFR traditionally been underrepresented testing in other settings (up to 2 points). 200.205, before awarding grants under based on race, color, national origin, g. Adequacy of resources (15 points). this competition the Department gender, age, or disability (up to 2 (i) The Secretary considers the conducts a review of the risks posed by points). adequacy of resources for the proposed applicants. Under 2 CFR 3474.10, the (iii) In addition, the Secretary project. Secretary may impose specific considers: (ii) In determining the adequacy of conditions and, in appropriate (A) The qualifications, including resources for the proposed project, the circumstances, high-risk conditions on a relevant training and experience, of the Secretary considers: grant if the applicant or grantee is not project director or principal investigator (A) The relevance and demonstrated financially stable; has a history of (up to 4 points); and commitment of each partner in the unsatisfactory performance; has a (B) The qualifications, including proposed project to the implementation financial or other management system relevant training and experience, of key and success of the project (up to 5 that does not meet the standards in 2 personnel (up to 4 points). points); CFR part 200, subpart D; has not

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fulfilled the conditions of a prior grant; to the public grant deliverables created enroll in and complete a postsecondary or is otherwise not responsible. in whole, or in part, with Department education. Under the Government 4. Integrity and Performance System: grant funds. When the deliverable Performance and Results Act of 1993 If you are selected under this consists of modifications to pre-existing (GPRA), we developed the following competition to receive an award that works, the license extends only to those performance measures to track progress over the course of the project period modifications that can be separately toward achieving the program’s goals: may exceed the simplified acquisition identified and only to the extent that 1. The percentage of GEAR UP threshold (currently $250,000), under 2 open licensing is permitted under the students who pass Pre-Algebra or its CFR 200.205(a)(2) we must make a terms of any licenses or other legal equivalent by the end of eighth grade. judgment about your integrity, business restrictions on the use of pre-existing 2. The percentage of GEAR UP ethics, and record of performance under works. Additionally, a grantee or students who pass Algebra 1 or its Federal awards—that is, the risk posed subgrantee that is awarded competitive equivalent by the end of ninth grade. by you as an applicant—before we make grant funds must have a plan to 3. The percentage of GEAR UP an award. In doing so, we must consider disseminate these public grant students who graduate from high any information about you that is in the deliverables. This dissemination plan school. integrity and performance system can be developed and submitted after 4. The percentage of GEAR UP (currently referred to as the Federal your application has been reviewed and students who complete the Free Awardee Performance and Integrity selected for funding. For additional Application for Federal Student Aid. Information System (FAPIIS)), information on the open licensing 5. The percentage of GEAR UP accessible through the System for requirements please refer to 2 CFR students and former GEAR UP students Award Management. You may review 3474.20(c). who are enrolled at an IHE. and comment on any information about 4. Reporting: (a) If you apply for a 6. The percentage of GEAR UP yourself that a Federal agency grant under this competition, you must students who place into college-level previously entered and that is currently ensure that you have in place the math and English without need for in FAPIIS. necessary processes and systems to remediation. Please note that, if the total value of comply with the reporting requirements 7. The percentage of current GEAR UP your currently active grants, cooperative in 2 CFR part 170 should you receive students and former GEAR UP students agreements, and procurement contracts funding under the competition. This who enrolled at an IHE and persisted to from the Federal Government exceeds does not apply if you have an exception the second year of postsecondary $10,000,000, the reporting requirements under 2 CFR 170.110(b). education at the initial or a subsequent in 2 CFR part 200, Appendix XII, (b) At the end of your project period, IHE. require you to report certain integrity you must submit a final performance In addition, to assess the efficiency of information to FAPIIS semiannually. report, including financial information, the program, we track the average cost, Please review the requirements in 2 CFR as directed by the Secretary. If you in Federal funds, of achieving a part 200, Appendix XII, if this grant receive a multiyear award, you must successful outcome, where success is plus all the other Federal funds you submit an annual performance report defined as enrollment in a program of receive exceed $10,000,000. that provides the most current undergraduate instruction at an IHE of performance and financial expenditure GEAR UP students immediately after VI. Award Administration Information information as directed by the Secretary high school graduation. These 1. Award Notices: If your application under 34 CFR 75.118. The Secretary performance measures constitute GEAR is successful, we notify your U.S. may also require more frequent UP’s indicators of the success of the Representative and U.S. Senators and performance reports under 34 CFR program. Accordingly, we require that send you a Grant Award Notification 75.720(c). For specific requirements on applicants include these performance (GAN), or we may send you an email reporting, please go to www.ed.gov/ measures in conceptualizing the design, containing a link to access an electronic fund/grant/apply/appforms/ implementation, and evaluation of their version of your GAN. We may notify appforms.html. proposed projects. you informally, also. (c) Under 34 CFR 75.250(b), the 6. Continuation Awards: In making a If your application is not evaluated or Secretary may provide a grantee with continuation award under 34 CFR not selected for funding, we will notify additional funding for data collection 75.253, the Secretary considers, among you. analysis and reporting. In this case the other things: whether a grantee has 2. Administrative and National Policy Secretary establishes a data collection made substantial progress in achieving Requirements: We identify period. the goals and objectives of the project; administrative and national policy 5. Performance Measures: The whether the grantee has expended funds requirements in the application package objectives of the GEAR UP program are in a manner that is consistent with its and reference these and other (1) to increase the academic approved application and budget; and, requirements in the Applicable performance and preparation for if the Secretary has established Regulations section of this notice. postsecondary education of performance measurement We reference the regulations outlining participating students; (2) to increase requirements, the performance targets in the terms and conditions of an award in the rate of high school graduation and the grantee’s approved application. the Applicable Regulations section of participation in postsecondary In making a continuation grant, the this notice and include these and other education of participating students; and Secretary also considers whether the specific conditions in the GAN. The (3) to increase education expectations grantee is operating in compliance with GAN also incorporates your approved for participating students and increase the assurances in its approved application as part of your binding student and family knowledge of application, including those applicable commitments under the grant. postsecondary education options, to Federal civil rights laws that prohibit 3. Open Licensing Requirements: preparation, and financing. discrimination in programs or activities Unless an exception applies, if you are The effectiveness of this program receiving Federal financial assistance awarded a grant under this competition, depends on the rate at which program from the Department (34 CFR 100.4, you will be required to openly license participants complete high school and 104.5, 106.4, 108.8, and 110.23).

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VII. Other Information nationally recognized certification For further information on how to Accessible Format: Individuals with program. This notice summarizes the submit a comment, review other public disabilities can obtain this document substantive aspects of these documents comments and the docket, or to request and a copy of the application package in and requests public comments on the a public meeting, contact the Appliance an accessible format (e.g., braille, large merits of the petition. and Equipment Standards Program staff print, audiotape, or compact disc) on DATES: DOE will accept comments, data, at (202) 287–1445 or by email: request to one of the program contact and information with respect to the ApplianceStandardsQuestions@ persons listed under FOR FURTHER Advanced Energy Petition until August ee.doe.gov. 7, 2019. INFORMATION CONTACT. SUPPLEMENTARY INFORMATION: Electronic Access to This Document: ADDRESSES: You may submit comments, The official version of this document is identified by docket number ‘‘EERE– I. Background and Authority the document published in the Federal 2019–BT–PET–0019,’’ by any of the Register. You may access the official following methods: Part C of Title III of the Energy Policy edition of the Federal Register and the Federal eRulemaking Portal: http:// and Conservation Act contains energy Code of Federal Regulations via www.regulations.gov. Follow the conservation requirements for, among www.govinfo.gov. At this site you can instructions for submitting comments. other things, electric motors and small view this document, as well as all other Email: AdvEnergyElecMotorsPet2019 electric motors, including test documents of this Department [email protected] Include the docket procedures, energy efficiency standards, number and/or RIN in the subject line and compliance certification published in the Federal Register, in 1 text or Portable Document Format of the message. requirements. 42 U.S.C. 6311–6316. (PDF). To use PDF you must have Postal Mail: Appliance and Section 345(c) of EPCA directs the Adobe Acrobat Reader, which is Equipment Standards Program, U.S. Secretary of Energy to require available free at the site. Department of Energy, Building manufacturers of electric motors ‘‘to You may also access documents of the Technologies Office, Mailstop EE–5B, certify through an independent testing Department published in the Federal 1000 Independence Avenue SW, or certification program nationally Register by using the article search Washington, DC 20585–0121. recognized in the United States, that feature at www.federalregister.gov. Telephone: (202) 287–1445. If possible, [each electric motor subject to EPCA Specifically, through the advanced please submit all items on a compact efficiency standards] meets the search feature at this site, you can limit disc (‘‘CD’’), in which case it is not applicable standard.’’ 42 U.S.C. 6316(c). your search to documents published by necessary to include printed copies. The United States Department of Energy the Department. No telefacsimilies (faxes) will be (‘‘DOE’’ or, in context, ‘‘the accepted. For detailed instructions on Department’’) codified this requirement Diane Auer Jones, submitting written comments and at 10 CFR 431.17(a)(5). DOE also Principal Deputy Under Secretary. additional information on the established certain compliance testing [FR Doc. 2019–14370 Filed 7–5–19; 8:45 am] rulemaking process, see section V of this requirements for manufacturers of small BILLING CODE 4000–01–P document (Public Participation). electric motors. 77 FR 26608 (May 4, Hand Delivery/Courier: Appliance 2012) Manufacturers of small electric and Equipment Standards Program, U.S. motors have the option of self-certifying DEPARTMENT OF ENERGY Department of Energy, Building the efficiency of their small electric Technologies Office, 950 L’Enfant Plaza motor using a certification program [EERE–2019–BT–PET–0019] SW, Suite 600, Washington, DC 20024. nationally recognized in the U.S to Telephone: (202) 287–1445. If possible, certify the efficiency of these motors. Energy Efficiency Program for please submit all items on a CD, in (10 CFR 431.445) DOE developed a Industrial Equipment: Petition of North which case it is not necessary to include regulatory process for the recognition, Carolina Advanced Energy printed copies. and withdrawal of recognition, for Corporation Efficiency Verification Docket: For access to the docket to certification programs nationally Services for Classification as a review the background documents recognized in the U.S. The criteria and Nationally Recognized Certification relevant to this matter, you may visit the procedures for national recognition of Program for Electric Motors and Small U.S. Department of Energy, 950 L’Enfant an energy efficiency certification Electric Motors Plaza SW, Washington, DC 20024; (202) program for electric motors are codified AGENCY: Office of Energy Efficiency and 586–2945, between 9:00 a.m. and 4:00 at 10 CFR 431.20—10 CFR 431.21 for Renewable Energy, Department of p.m., Monday through Friday, except electric motors and at 10 CFR 431.447— Energy. Federal holidays. Please call Ms. Brenda 10 CFR 431.448 for small electric motors. Each step of the process and ACTION: Notice of petition and request Edwards at the above telephone number evaluation criteria are discussed below. for public comments. for additional information. FOR FURTHER INFORMATION CONTACT: Mr. For a certification program to be SUMMARY: This notice announces receipt Jeremy Dommu, U.S. Department of classified by DOE as being nationally of a petition from North Carolina Energy, Building Technologies Program, recognized in the United States for the Advanced Energy Corporation EE–5B, 1000 Independence Avenue SW, testing and certification of electric Efficiency Verification Services seeking Washington, DC 20585–0121. motors and small electric motors, the classification as a nationally recognized Telephone: (202) 586–9870. Email: organization operating the program certification program. The petition, [email protected]. must submit a petition to the which appears at the end of this notice, Mr. Michael Kido, U.S. Department of Department requesting such includes documentation to help Energy, Office of the General Counsel, classification, in accordance with substantiate company’s position that its GC–33, 1000 Independence Avenue SW, aforementioned sections. certification program for electric motors Washington, DC 20585–0103. and small electric motors satisfies the Telephone: (202) 586–8145. Email: 1 For editorial reasons, upon codification in the evaluation criteria for classification as a [email protected]. U.S. Code, Part C was re-designated Part A–1.

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For the Department to grant such a statements—(1) Standards and motors, that Advanced Energy is expert petition, the petitioner’s certification Procedures, (2) Independent Status, (3) in the content and application of the test program must: Qualification of Advanced Energy to procedures and methodologies IEEE Std (1) Have satisfactory standards and Operate a Certification System, and (4) 112–2004 Test Method B or CSA C390– procedures for conducting and Expertise in Electric Motor Test 10. (See 10 CFR 431.20(c)(4)). And, for administering a certification system, Procedures. The petition included small electric motors, that Advanced and for granting a certificate of supporting documentation on these Energy is expert in the content and conformity; subjects. The Department is required to application of the test procedures and (2) Be independent of electric motor publish in the Federal Register such methodologies IEEE Std 112–2004, Test and small electric motor manufacturers petitions for public notice and Methods A and B, IEEE Std 114–2010, (as applicable), importers, distributors, solicitation of comments, data and CSA C390–10, and CSA C747 and with private labelers or vendors; information as to whether the Petition similar procedures and methodologies. (3) Be qualified to operate a should be granted. 10 CFR 431.21(b) and (See 10 CFR 431.447(c)(4)). certification system in a highly 10 CFR 431.448(b). A copy of Advanced (4) DOE is also interested in receiving competent manner; and Energy’s petition and accompanying comments on whether Advanced (4) Be expert in the following test cover letter have been placed in the Energy’s criteria and procedures are procedures and methodologies: docket. (a) For electric motors it must be satisfactory for the selection and The Department hereby solicits sampling of electric motors and small expert in the content and application of comments, data and information on the test procedures and methodologies electric motors tested for energy whether it should grant the Advanced efficiency. in IEEE Std 112–2004 Test Method B or Energy Petition. 10 CFR 431.21(b) and CSA C390–10. It must have satisfactory 10 CFR 431.448(b). Any person Signed in Washington, DC, on June 28, criteria and procedures for the selection submitting written comments to DOE 2019. and sampling of electric motors tested with respect to the Advanced Energy Alexander N. Fitzsimmons, for energy efficiency. (10 CFR Petition must also, at the same time, Acting Deputy Assistant Secretary for Energy 431.20(b)); and send a copy of such comments to Efficiency, Energy Efficiency and Renewable (b) For small electric motors it must Advanced Energy. As provided under Energy. be expert in the content and application §§ 431.21(c) and 431.448(c), Advanced Petition for Recognition of the test procedures and Energy may submit to the Department a methodologies in IEEE Std 112–2004 written response to any such comments. Energy Efficiency Evaluation of Electric Test Methods A and B, IEEE Std 114– After receiving any such comments and Motors to United States Department of 2010, CSA C390–10, and CSA C747, or responses, the Department will issue an Energy similar procedures and methodologies interim and then a final determination Requirements as Documented in 10 for determining the energy efficiency of on the Advanced Energy Petition, in CFR part 431—Subpart B and Subpart small electric motors. It must have accordance with § 431.21(d) and (e), and X satisfactory criteria and procedures for § 431.448(d) and (e) of 10 CFR part 431. the selection and sampling of electric In particular, the Department is State of NORTH CAROLINA motors tested for energy efficiency. (10 interested in obtaining comments, data, SS: County of WAKE CFR 431.447(b)) and information respecting the Before me, the undersigned notary public, The petition requesting classification following evaluation criteria: this day, personally, appeared Brian Coble to as a nationally recognized certification (1) Whether Advanced Energy has me known, who being duly sworn according program must contain a narrative satisfactory standards and procedures to law, deposes the following: statement explaining why the for conducting and administering a /s/ Brian Coble Subscribed and sworn to organization meets the above criteria, be certification system, including periodic before me this 12 day of February 2019. accompanied by documentation that follow up activities to assure that basic /s/ Terri Bowling, Notary Public supports the narrative statement, and be models of electric motors and small signed by an authorized representative. electric motors continue to conform to Petition for Recognition (10 CFR 431.20(c), and 10 CFR the efficiency levels for which they were Advanced Energy Motor Efficiency 431.447(c)). certified, and for granting a certificate of Verification Services conformity. DOE is also interested in II. Discussion obtaining comments as to how Pursuant to sections 431.20, 431.21, rigorously Advanced Energy operates its 431.447 and 431.448, on February 11, certification system under the 2019, North Carolina Advanced Energy guidelines contained in ISO/IEC Guide Corporation Efficiency Verification 65, General requirements for bodies Services (‘‘Advanced Energy’’) operating product certification systems. submitted to DOE a Petition for (2) Whether Advanced Energy is Recognition related to the group’s motor independent of electric motor and small efficiency verification services. That electric motor manufacturers, importers, petition, titled, ‘‘Energy Efficiency distributors, private labelers or vendors. Energy Efficiency Evaluation of Electric Evaluation of Electric Motors and Small To meet this requirement, it cannot be Motors and Small Electric Motors to US Electric Motors to US Department of affiliated with, have financial ties with, Department of Energy Regulations as Energy Regulations as stipulated in 10 be controlled by, or be under common stipulated in 10 CFR 431—Subpart B CFR part 431, subpart B and Subpart X’’ control with any such entity. (‘‘Petition’’ or ‘‘Advanced Energy (3) Whether Advanced Energy is and Subpart X Petition’’), was accompanied by a cover expert in the content and application of State: llllllllllllllllll letter from Advanced Energy to the the test procedures and methodologies County: lllllllllllllllll Department containing four separate for both electric motors and small Before me the undersigned notary public, sections including individual narrative electric motors. Specifically, for electric this day personally appeared lllllll

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lllwho being duly sworn according to manufacturers, motor distributors, distributors, private labelers or vendors. law, deposes the following:motor service centers, motor end users, It cannot be affiliated with, have On behalf of Advanced Energy motor inventors and others. Advanced financial ties with, be controlled by, or llllllllll (Signature of Affiant) Energy has tested thousands of motors be under common control with any such Brian Coble, Senior Vice President for efficiency. entity. Advanced Energy Below is our summarized responses to Advanced Energy is 501 (c) 3 each of the four DOE evaluation criteria. corporation chartered in North Carolina ll Subscribed and sworn to before me this Detailed response can be found in by the North Carolina Utilities ll day of llllll 20l subsequent sections of the document. Commission in 1980, to fulfil the lllllllll My Commission Expires: (1) It must have satisfactory standards mission for which it was established. Contents and procedures for conducting and Our Board of Directors comprises public administering a certification system, members appointed by the sitting 1. Program Criteria Narrative including periodic follow up activities to 2. Standards and procedures for conducting Governor and our electric utility and administering a certification system, assure that basic models of electric members in North Carolina. Advanced and for granting a certificate of motor continue to conform to the Energy is a nonprofit energy services conformity (CONFIDENTIAL) efficiency levels for which they were and engineering firm working with 2.1 Scope of Covered Products certified, and for granting a certificate of electric utilities, government agencies, 2.2 Summary of Elements of the conformity. public and private organizations to Certification Program Advanced Energy’s test lab has been provide research, testing, training, 2.3 Detailed Description of Key Elements ISO 17025 certified since 1997. ISO consulting and program design services of Certification Program 17025 ensures our lab strictly follows in the residential, commercial and 2.3.1 Application (APP) standards and adheres to procedures to 2.3.2 Initial Product Evaluation (EVAL) industrial sectors markets. Our vision is 2.3.3 Test Facility Evaluation (TFE) ensure quality. Our lab has been audited to ensure energy is clean, affordable, 2.3.4 Sample Selection (SAMP) annually by the National Institute of reliable, efficient, and safe for all 2.3.5 Motor Build Inspection Analysis Standards and Technology since 1997. people. and Construction Evaluation (MBIA) In addition our lab is audited for motor While Advanced Energy regularly 2.3.6 Initial Certification Testing (ICT) efficiency testing by Asociacion tests electric motors and small electric 2.3.7 On-Going Production Testing (OGT) Nacional de Normalizacion y motors for all of the client categories 2.3.8 Follow-Up Visits and Testing (FUV) Certification (ANCE). We have other noted at the beginning of this narrative, 2.3.9 Non-Conformance (NCF) programs and clients in our lab often Advanced Energy does not have any 2.3.10 File Review (REVIEW) requiring a review of our records. As a affiliation, financial or otherwise with 2.3.11 Certification Decision (CERT) 3. Qualifications of Advanced Energy to result we are expert in how motor labs any of its clients. Advanced Energy is Certify Motors and its Expertise in Test should be audited for motor efficiency solely controlled by its Management and Procedures testing. Board of Directors. 3.1 Introduction Advanced Energy’s test lab recently (3) It must be qualified to operate a 3.2 Summary of Advanced Energy added ISO 17065 for electric motor certification system in a highly Qualifications efficiency certification by the American competent manner. 3.3 Advanced Energy’s Experience with National Standards Institute (ANSI). ISO Advanced Energy has offered Certification Matters 17065 ensures Advanced Energy’s has accreditation services to the motor 4. Independent Status of Advanced Energy satisfactory standards and procedures repair industry since 2000. Our Proven 5. APPENDICES 5.1 Accreditation Certificate from ANSI for conducting and administering a Efficiency Verification program requires 5.2 Accreditation Certificate from NVLAP certification system. Our processes for site audits of the motor service center 5.3 Accreditation Certificate from NOM? motor efficiency certification, including and annual testing to prove motor repair 5.4 Form 103 periodic follow up activities to assure processes are not degrading efficiency. basic models conform to prescribed We are also one of four Electrical 1. Program Criteria Narrative efficiency levels, are clearly defined in Apparatus Service Association auditors This document is a petition for the our required ANSI scheme. As our ANSI for the EASA Accreditation program for recognition, by US Department of scheme represent our services for motor electric motor repair. Energy (DOE), of North Carolina efficiency certification we provide the Advanced Energy has operated a Advanced Energy Corporation full scheme in a section marked HVAC contractor Certification program (Advanced Energy) Efficiency ‘‘confidential’’. As a result of our ISO launched in 2012. Our certification Verification Services as a nationally 17065 certification we have established services for HVAC contractors was recognized certification program for and registered a mark with the US developed in response to and as a certifying electric motors to the DOE Patents and Trademark Office (mark is requirement of the Environmental standards currently in effect in the noted on the cover page) and we are Protection Agency (EPA)’s Energy Star United States. capable of issuing a certificate of New Homes Program—HQUITO. Our North Carolina Advanced Energy conformity for electric motor efficiency. program serves to not only help HVAC Corporation (Advanced Energy) has Advanced Energy has well established contractors become Certified in the been operating as an independent standards and procedures in place for ENERGY STAR program, but also electric motor efficiency testing facility administering Certification programs. supports their growth and success with since 1989. In 1992 Advanced Energy The company currently operates several technical assistance and best-in-class began working with the U.S. Certification programs relating to training and resources. Department of Energy (DOE) and many multiple products, such as residential SystemVisionTM is an Advanced other public stakeholders in the Notice affordable homes, HVAC Contractor Energy Certification Program for of Proposed Rule (NOPR) making systems, Solar Installations and Electric affordable homes whereby homes that process for motor efficiency. Our test Motor Repair. These are described are built to Advanced Energy’s facility provides motor efficiency testing under item (3) below. specifications are guaranteed a specific to various entities, including (2) It must be independent of electric heating and cooling energy subcontractors of DOE, motor motor manufacturers, importers, consumption at a specified comfort

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level. SystemVisionTM Certified homes Small electric motors manufactured and or stock are selected by AE’s that have their heating and cooling distributed in commerce, as defined engineering staff for testing subsequent expenditure above the pre-set threshold by 42 U.S.C. 6291(16), must meet the to evaluation and certification (see are reimbursed by the program. energy conservation standards below). specified in the Code of Federal Advanced Energy provides the training Motor Build and Construction Regulations at 10 CFR 431.446 and technical support that helps Evaluation affordable housing market players in the through 431.448 design, construction and certification of Detailed provisions are available in While sample testing provides a good energy-efficient affordable homes. The the following references: indication of performance of samples at SystemVisionTM homes are reputed to Electric Motors: https:// a point in time, Advanced Energy is contribute to improved health, safety, www1.eere.energy.gov/buildings/ capable of comprehensively evaluating durability, comfort and energy appliance_standards/standards.aspx? the physical product to assess the manufacturer’s design and construction efficiency in the state of North Carolina. productid=6&action=viewlive (4) It must be expert in the content Small Motors: https:// philosophy in general and to a lesser and application of the test procedures www1.eere.energy.gov/buildings/ extent, consistency between the and methodologies in IEEE Std. 112– appliance_standards/ electromagnetic design and test results. 2004 Test Method B or CSA C390–10, standards.aspx?productid=7 The manufacturer’s motor design and (incorporated by reference, see Electronic Code of Federal Regulations: construction will be evaluated to § 431.15). It must have satisfactory https://www.ecfr.gov/cgi-bin/ identify the critical design decisions criteria and procedures for the selection retrieveECFR?n=pt10.3.431 and construction features that would and sampling of electric motors tested affect its energy efficiency performance. for energy efficiency 2.2 Summary of Elements of the Initial Certification Testing Advanced Energy Motor Engineers Certification Program The samples selected per DOE actively participate in motor and drive The following is a brief overview of test standard development with IEEE, sampling guidelines will be tested in an the major elements of Advanced approved facility according to DOE test CSA, and IEC. We not only conduct Energy’s (AE) Motor Energy Efficiency these tests daily, our staff contributes to procedures and the results are evaluated Certification Service used for qualifying in order to determine compliance. the development of these standards and manufacturers’ motors. Detailed others recognized in 10 CFR 431.15 descriptions of the items below are On-Going Production Testing including IEEE 114, IEEE 112 Method A, provided in section 2.3. After the initial certification, ongoing IEC 60034–2–1, IEC 61800–9–2 and Application production testing will be required for many others. Our many years of continued compliance verification. experience operating our ISO 17025 test Customer requests motor energy Manufacturers will test samples of their lab, participating on standard setting efficiency certification service through products as part of their ongoing committees, and participation in DOE’s an application. The application is production procedures to determine NOPR process make us experts in the evaluated. A Motor Efficiency continued compliance with the energy content and application of all prescribed Verification Services Agreement shall be efficiency requirements. The results of test procedures and methodologies executed by both sides. the ongoing tests will be reviewed by incorporated in 10 CFR part 431.15. Initial Product Evaluation AE. Advanced Energy utilizes a simple random number generator process for At this stage the Applicant’s product Follow-Up Visits and Testing test sample selection when advising is evaluated. The AE staff requests AE staff would reserve the right to clients requiring random model pertinent information to that will be conduct follow up visits to selection. In addition we test drives for required in order to properly evaluate manufacturer’s facilities for random the Air Condition Heating and the product for compliance. The AE inspections to check compliance of Refrigeration Institute’s (AHRI) variable personnel will request all data that will production issues or test lab’s ability to frequency drive certification program, help to properly evaluate the product perform accurate testing of products. partnering with Underwriters including information about the Laboratories (UL), where samples are manufacturer’s production and test Non-Conformance selected at sites randomly and shipped facilities used to manufacture and For non-conforming test results found to our lab for testing. characterize the product. during testing at the manufacturer’s own or other qualified test facilities, or any Test Facility Evaluation 2. Standards and procedures for other forms of non-conformance conducting and administering a A client utilizing AE’s certification Advanced Energy will apply its certification system, and for granting a services for motor efficiency may or may procedures to resolve the non- certificate of conformity not utilize AEs lab for testing. For the conformity of the applicant. (CONFIDENTIAL) purposes of ensuring that test facilities File Review 2.1 Scope of Covered Products meet the highest standard required to ensure confidence in test result, all test A Reviewer shall be appointed to DOE’s Energy Efficiency Regulations facilities will be evaluated by Advanced review the work of the Evaluator. This cover certain electric motors and small Energy for conformance to ISO/IEC is a critical step that precedes the motors. 17025 Standard (see details in Section 3 Certification decision. In line with the Electric motors manufactured and (TFE)). ISO/IEC 17065 Guidelines, the distributed in commerce, as defined Evaluator shall not serve as the Sample Selection by 42 U.S.C. 6311(7), must meet the Reviewer. energy conservation standards Manufacturer would provide to AE, a specified in the Code of Federal list of all covered motors that it Certification Decision Regulations at 10 CFR 431.25 through manufacturers. Representative samples Certification decision shall follow 431.26 from the manufacturer’s production line Evaluation and Review. After

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determination that the motors meet the applicable DOE test standards and records, test lab layout, wiring and applicable standards, through the key information on the test facilities used to specifications, equipment accuracy and activities of the preceding steps, the obtain the test data. tolerances, past test reports, operating applicant is formally notified that the (d) Description of test facility, list of manuals, and quality system. energy efficiency of their motors is duly major equipment and test facility layout If a site visit is required as part of the verified and in compliance and is issued such as power supply, autotransformer, Facility evaluation, it will involve a Certificate of Conformity by AE. loading device, ambient control; list of Advanced Energy visiting the Client’s lab to witness physical resources of the Follow Up Service (FUS) Agreement instrumentation and calibration records and practices, measurement accuracy of facility, general lab practices, the lab Advanced Energy and the instruments used in making setup and equipment, calibration manufacturer or Applicant will enter measurements; with particular emphasis practices and calibration records, into a follow-up services agreement in on torque, speed, electrical power, operational practices, setup and testing conformity to ISO/IEC 17065. temperature instrumentation, and of motors (used to further evaluate the 2.3 Detailed Description of Key Accreditation if applicable. equipment), documentation and control Elements of Certification Program (e) Information on the product design of data, processing of test data, and construction, including the critical calculations and general assessment of 2.3.1 Application (APP) product features which would affect engineering competence of lab staff. It is The customer applies for motor product energy efficiency performance. expected during this trip that data from energy efficiency verification and Information on quality control practices benchmark motors tested in the Client’s certification service. The application is and parameters which must be lab in the presence of Advanced Energy made available to download online at controlled by the manufacturer in order will be subjected to calculation of the Advanced Energy website. Upon to maintain a consistent product efficiency by both the lab and receipt of the application, AE will performance. simultaneously and independently by assign a qualified staff member to be AE. The results of this calculation responsible for handling the project. A 2.3.3 Test Facility Evaluation (TFE) comparison on same set of motors will Motor Efficiency Verification Services Advanced Energy Motor Efficiency highlight areas, if any, that needs Agreement (also known as ‘‘Advanced Certification Service may use AE’s lab, attention in the Client’s lab. During this Energy Motor Efficiency Certification manufacturers’ lab or other test facilities visit the detailed evaluation of the Services—Terms of Service’’) shall be approved by AE for conducting testing calibration procedures and techniques sent to the customer and shall be (lab selection process is done using are performed that are critical to executed by both sides. A project Form 103 Flow Chart). obtaining the required accuracy of ¥ initiation checklist (Form 101) shall be The use of a manufacturer’s test +\ 0.2%. Advanced Energy staff will invoked after the execution of the facility or other facility to conduct use personal observation and face to necessary agreements. The assigned staff testing upon which Advanced Energy face communication during the visit to member will also serve as the Evaluator Motor Efficiency Certification service ensure that the Client’s lab is suited to and proceed with the initial product can be based, is contingent upon an perform efficiency testing accurately. evaluation steps and other subsequent evaluation conducted by Advanced If inter-lab testing is required as part steps as laid out below. At the time of Energy of the test facilities, equipment of the Facility evaluation, AE will appointment of an Evaluator, a File and competence of personnel require the Client to supply three Reviewer will be designated. The conducting the testing and overall motors for comparison (benchmark) Evaluator and File Reviewer shall NOT competency and capability of the testing to be shipped to Advanced be the same person. facility to test motors to applicable DOE Energy’s lab for testing. These same test procedures while complying with motors will be shipped back to the 2.3.2 Initial Product Evaluation Client’s facility for subsequent testing (EVAL) requirements of ISO/IEC 17025. The test facility used for conducting the tests and the inter-lab results will be As part of the Initial Product shall be either ISO/IEC 17025 accredited compared. Advanced Energy will Evaluation, the following information is or shall be evaluated for conformance to specify the three motors based on the obtained by the Evaluator prior to and/ ISO/IEC 17025 standard by Advanced equipment list (dynamometers sizes and or during the initial visit (if required) to Energy using NIST Handbook 150 ranges) such that all equipment is the manufacturer’s or applicant’s checklist and NIST Handbook 150–10 evaluated equally. Benchmarking test facilities for the purposes of the test Checklist. The Evaluator shall follow results between Advanced Energy’s facility evaluation step (discussed Advanced Energy’s Form 103 flow chart NVLAP accredited lab and Client’s lab below): for determining the test facility where will provide a strong indication of the (a) Description of the products being testing can be conducted for relative accuracy of the Client’s lab and submitted by basic specification such as Certification purposes. can be used as a guide for lab type, brand name, model designations Advanced Energy’s evaluation of test evaluation. or model number, frame, poles or speed, If an annual reverification is included facility (or Facility Evaluation) may rated voltage, phase, efficiency and any as part of the Client Facility evaluation include at least two of the following: other pertinent information specific to • it will take the form of one or more of the products. Lab document and management the following: subsequent site visit, lab (b) Design data and Alternative system review • document review, inter-lab test Efficiency Determination data and Site visit for lab audit and witness comparison, as previously described. description of AEDM methods. testing (c) Test data and information on • Inter-lab test comparison 2.3.4 Sample Selection (SAMP) energy consumption, and product test • Annual re-verification Manufacturer would provide a list of methods applied, test conditions, test The initial lab document review of all covered motors that it manufacturers reports, declaration and proof that the test facility may include but not limited to AE. Representative samples from the tests for the products being submitted to, review of documents pertaining to manufacturer’s production line or stock were conducted in accordance with the equipment (specifications), calibration are selected by AE’s engineering staff for

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testing, subsequent to evaluation and Prior to ICT, Advanced Energy would samples of the product shall also be certification. The main objective in have already evaluated and qualified a selected by the Advanced Energy staff sampling is to ensure that the motors test facility that would be used to obtain representative and tested by the meet the applicable energy efficiency the test data. The qualification would manufacturer for verification. Data standard with high confidence while ensure that the lab is capable of processing shall follow similar practices reducing testing burden. The sampling performing testing according to DOE’s as ICT and the test results are compared plan that is adopted by AE shall follow test procedures. The test facility shall to the AEDM generated values. The the requirements of 10 CFR part 431 and maintain the most up-to-date data manufacturer may use the reported data statutory revisions applicable at the processing sheets to perform tests to meet the requirements of the AEDM time of application. according to the relevant standards such subsequent verification. as IEEE 112, IEEE 114, CSA C390, and From Advanced Energy’s experience, 2.3.9 Non-Conformance (NCF) most manufacturers use an Alternative CSA C747. Efficiency Determination Method Advanced Energy reserve the right to For non-conforming test results found (AEDM) for larger populations of request raw data for any selected basic during testing at an approved test covered product. If the manufacturer model(s) and process same, using data facility, or any other forms of non- uses an AEDM, information of the processing sheet of its own laboratory in conformance, including any violation or AEDM would be submitted and order to check the work of the test not meeting the conditions of evaluated at the initial product facility. certification, Advanced Energy shall evaluation stage (EVAL). AEDM The test data and full load efficiency inform the client of the information shall again be reviewed of the sample set shall be processed in nonconformities. Advanced Energy during sample selection. Following 10 accordance with 10 CFR 431. Non- shall provide information regarding CFR 431, there shall be 5 samples of no conformance of test results for the ICT additional evaluation tasks that are fewer than 5 motors (25 motors) tested would be addressed in accordance with needed to verify that all and the efficiency results compared 10 CFR431 and in line with Advanced nonconformities have been corrected. If with the AEDM predicted values Energy guidelines. the client agrees to completion of the according to the regulations. 2.3.7 On-Going Production Testing additional evaluation tasks, the process The factors to consider, including two (OGT) of EVAL shall be repeated to complete of the basic models among the five basic the additional evaluation tasks. The On-going production testing will be results of all evaluation activities shall models, being with the highest unit required for continued compliance volumes of production in the prior year, be documented for the purposes of the verification. These will be carried out in file REVIEW step. and basic models being of different the same facilities as the ICT or in an horsepower and frame numbers without All such non-conformities will be approved facility. Manufacturers will addressed on a case by case basis. duplication, and all other sample test samples of their products as part of criteria shall be followed strictly. Options available include but not their ongoing production procedures to limited to: determine continued compliance with 2.3.5 Motor Build Inspection Analysis (a) Remove the non-conforming the energy efficiency requirements. and Construction Evaluation (MBIA) products from consideration The on-going production testing shall The manufacturer’s motor design and include an AEDM subsequent (b) perform comprehensive analysis to construction is evaluated to identify the verification. Statistically valid samples determine the cause of non- critical design decisions and of the manufacturer’s production shall conformance, determine remedies, construction features that would affect be selected for the subsequent evaluate effectiveness of remedies, its energy efficiency performance. verification of the AEDM, in line with subject to re-evaluation. Advanced Energy has significant 10 CFR 431. 2.3.10 File Review (REVIEW) experience in this area. During MBIAs, The process for review of results of AE obtains sample motors from the the ongoing tests by AE will be in This is a critical step that precedes the customer and tears them down and similar fashion as the review of the ICT Certification decision and it is meant to measures and analyzes critical motor test results. ensure that all the important preceding dimensions, such as active stack length, steps and requirements are met during air gap, lamination thickness, and 2.3.8 Follow-Up Visits and Testing the Evaluation of the products for bearings specifications. The analysis (FUV) Certification. An Advanced Energy staff results in a detailed report with Advanced Energy considers it an member shall be appointed as a photographs and data tables. The MBIA important goal that manufacturers using Reviewer to review the work of the is non-destructive and motors are its Certification Services do not relent in Evaluator and to determine if the reassembled to their original as received their efforts to ensure that their products necessary provisions of ISO/IEC 17065 condition. In addition to the evaluation meet compliance requirements on an are followed. In line with the of motor design and build, the on-going basis. In order to meet this procedures, the Evaluator shall not manufacturer’s factory quality assurance goal, Advanced Energy would reserve serve as the Reviewer. procedures in certain areas that affect the right to conduct follow-up visits for The outcome of the REVIEW is a the key performance indicators for inspections to check compliance of recommendation. The recommendation energy efficiency will be reviewed. The production issues or test facility’s may identify a non-conformity that had manufacturer’s in-process testing during ability to perform accurate testing of been a result of oversight at the EVAL production runs will also be reviewed. products. stage or may have occurred during the One visit may be conducted to a period between the EVAL and REVIEW. 2.3.6 Initial Certification Testing (ICT) manufacturer’s facility each year to Recommendation may also be for a The samples selected shall be tested observe that the manufacturers’ Certification decision. All according to 10 CFR part 431 and the production and control practices are recommendations based on the REVIEW test results shall be processed in order consistent with Advanced Energy’s shall be documented. It is acceptable for to determine compliance. expectations and. During this visit, the review and the certification decision

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to be completed concurrently by the Specifically, with regard to electric 3.2 Summary of Advanced Energy same AE Staff Member. motors (and drives), Advanced Energy’s Qualifications past activities include: 2.3.11 Certification Decision (CERT) (a) Advanced Energy’s credentials in • Testing to US Department of Energy The project for certifying motors, the motor efficiency field is unmatched. (USDOE) requirements The company has been testing motors following the application to Advanced • Testing to Natural Resources of Energy, Evaluation, Assessment and since 1989 and has operated an Canada (NRCan) requirements independent test lab since that time. Qualification of test facility, testing to • Testing to IEEE Standards and other DOE Standards, Review and Processing The lab has helped motor International standards manufacturers, OEMs, utilities and of Data, File Review and • Testing to International Electro Recommendation for Approval industrial customers since 1989. A technical Commission (IEC) Motors and Drives group’s history and concludes with the issuance of a requirements Certificate of Conformity by Advanced • summary of milestones of the can be Testing to NOM (Mexico) Standards found at: https:// Energy and subsequent issuance of a and requirements Compliance Certificate number by the • www.advancedenergy.org/portal/mad/ Testing to AHRI standards images/pdf_documents/Motor_History_ US Department of Energy. The • Engineering Services to Develop Timeline_2014.pdf. designated AE staff member responsible Electric Motor Labs around the world for the Certification decision will also • Certification of motor energy (b) Advanced Energy has maintained be responsible for ensuring that Follow- efficiency and performance for global an ISO/IEC 17025 based accreditation up surveillance activities are in place. R&D Companies, inventers and with NVLAP/NIST for the past 20 years. product developers AE is familiar with running and 2.3.12 Follow-Up Service (FUS) • operating a quality system. Advanced Agreement Engineering Services for Motor Designers and Application Customers Energy has achieved ISO/IEC 17065 Advanced Energy and the Applicant • Performance of Motor Build and product certification accreditation with will enter into a follow-up services Inspection Analysis (MBIA) ANSI and plans to maintain this agreement. The FUS agreement defines • Development of Technical Standards accreditation on an ongoing basis. With the conditions for maintaining for Motor Testing the company’s strong knowledge of certification such as access to • Applied Research on Motor Design, motors, motor testing and DOE rules on manufacturing sites, records, follow-up Application and Testing which the Certification is based, inspections, product re-testing and • Research in collaboration with Advanced Energy is capable of AEDM Subsequent Verification. utilities on the effect of electric power operating a program for certifying quality and smart grid on electric electric motors and small electric 3. Qualifications of Advanced Energy motors in a highly competent manner. To Certify Motors and Its Expertise in motors • Test Procedures Reliability testing of Motors for OEM (c) Advanced Energy has been Equipment involved in DOE rulemaking process 3.1 Introduction The bulk of Advanced Energy motors since 1992 and has extensive knowledge In 1997, Advanced Energy’s motor related work is carried out in its state- of the regulations. The company has testing lab became the first motor lab in of-the-art motor test laboratory. The actively participated in DOE public the world to be accredited for motor laboratory has maintained an ISO/IEC meetings for the rule making process efficiency testing by the National 17025 accreditation since 1997 through and has contributed white papers and Institute of Standards and Technology NIST/NVLAP. The lab has also comments to guide the process since (NIST), under the National Voluntary maintained a NOM designation through 1992. Several comments provided by Laboratory Accreditation Program ANCE, the first laboratory outside Advanced Energy for the small motors (NVLAP Code: 200081–0). It remains the Mexico to gain such designation. From and electric motors rule making are only independent motor lab in North 2010 to 2014 the laboratory participated often referenced in the Code of Federal America to hold this accreditation in UL’s data acceptance program and Regulations publications. which makes it uniquely qualified to has worked closely with UL to test (d) Advanced Energy’s motor test lab help evaluate and validate motors, motors intended for certification for UL is globally recognized for its accuracy in drives and related products. clients. The laboratory has also in the applying the IEEE 112, CSA C390, IEEE Energy efficiency testing is what past assisted CSA to certify motors for 114 and CSA C747 standard that are Advanced Energy is known for globally. its clients, following a witness by CSA required for certifying motors. Through the testing services of staff. Advanced Energy’s lab has served as a Advanced Energy, several motor Advanced Energy’s Motor Efficiency benchmark laboratory for other manufacturers around the globe have Verification Services program is an ISO/ laboratories to evaluate their own been certified to U.S. Department of IEC Guide 17065 compliant program performance. In this regard, Advanced Energy (DOE) requirements for motor that is subjected to ANSI accreditation Energy’s test results was used as the efficiency through self-certification. Our as evidenced by the issuance of standard to judge other labs’ testing capabilities apply to a wide accreditation by this august body (see performance. Advanced Energy has also variety of international standards and Appendix). provided engineering services to several our knowledge and reputation for The certification of motors under AE’s other labs around the world to enable accuracy has helped Advanced Energy Motor Energy Efficiency Certification them achieve ISO/IEC 17025 to gain the trust of motor manufacturers Service is based upon the satisfactory accreditation from NVLAP. and users worldwide, and has enabled evaluation and testing to the (e) Advanced Energy has contributed us to help manufacturers and users to requirements of the applicable US DOE expertise in developing the applicable validate performance claims and to standards in effect in an approved test test standards required for the motor achieve compliance with US DOE facility, which is either the AE test tests and is well familiar with these regulations and government regulations facility, the client’s facilities or other standards. Advanced Energy staff have in other jurisdictions. facility approved by Advanced Energy. been involved in various capacities to

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develop the IEEE and CSA motor and cooling expenditure above the As noted above in section 1 (Program efficiency test standards. threshold are reimbursed by the Criteria Narrative) Advanced Energy (f) Advanced Energy staff members program. Advanced Energy provides the does have clients including electric frequently serve as subject matter training and technical support that motor manufacturers, importers, expertise on motors in several national helps affordable housing market players distributors, private labelers, vendors, and international forums. Staff members in the design, construction and trade associations and others that utilize make presentations and conduct several certification of energy-efficient our lab for testing and pay us for those trainings yearly on motor basics and affordable homes. The SystemVisionTM services. In all cases we perform testing applications to industry and utility homes are reputed to contribute to to prescribed standards and offer test customers. Staff members also write and improved health, safety, durability, results. We do not offer advice or present technical papers in scientific comfort and energy efficiency in the consultation in motor design or motor settings and in industry and trade state of North Carolina. For the last 17 efficiency improvement. There are publications of the electric motor years the Certification Program has been consultants in the motor industry that industry. guaranteeing the heating and cooling do that and many of them utilize our lab (g) Advanced Energy is independent bills as well as homeowner comfort for as new electric motor products are and does not have or maintain any the residential new construction, developed. In these cases Advanced relationship, direct or indirect, with any affordable housing market in the State. Energy’s accuracy and repeatability in electric motor manufacturer, importer, For more information visit: https:// motor testing is valued and used by distributor, or any other related entity www.advancedenergy.org/portal/ others to improve products. Other that might pose a conflict of interest in systemvision/. clients use our test data to improve their any way shape or form. The Company (3) Advanced Energy has operated a products at times but they do that solely similarly does not have any relationship HVAC contractor Certification program, on their own with nothing further than with the US Department of Energy that launched in 2012. Advanced Energy’s test data offered from Advanced Energy. might hinder its ability to serve as an certification services for HVAC For motor efficiency certification clients independently recognized national contractors was developed in response either pass or fail the test and it is solely certification program for operating a to and as a requirement of the up to them to determine next steps. certification system for certifying the Environmental Protection Agency efficiency and compliance of electric We also tear motors down (EPA)’s Energy Star New Homes motors and small electric motors with documenting findings providing reports Program—HQUITO. Our program serves the applicable energy efficiency of all observations and a comment on to not only help HVAC contractors standards. the overall quality of construction. We (h) Advanced Energy has developed become certified in the ENERGY STAR have done this for costing purposes too extensive measures to ensure program, but to also support their with DOE subcontractors seeking to impartiality, through various checks at growth and success with technical define the cost of materials required to every stage of a given project. assistance and best-in-class training and achieve prescribed efficiency levels in resources. More information at: https:// the DOE rules. Providing test data and 3.3 Advanced Energy’s Experience www.advancedenergy.org/portal/hvac/. observation reports to our clients for With Certification Matters (4) Advanced Energy is the only compensation may appear to some to (1) Advanced Energy has significant organization in North Carolina selected constitute a conflict. We assert all other experience with certification matters. by the utilities to certify solar approved DOE third parties certification Since 2000, Advanced Energy currently installations for commissioning onto the programs for motor efficiency offer operates its own Quality Assurance grid. This activity comprises going on similar test services to their clients and Program for Motor Repair Centers. This site to inspect installations to ensure that by doing so we are all expert in national program, known as Proven that they meet the Duke Energy design certification processes as required by Efficiency Verification program, codes as well as related UL and IEEE the DOE program criteria. conducts audits of motor repair centers, standards. We assert that Advanced Energy does including before and after testing and 4. Independent Status of Advanced not have affiliation, financial or issues Motor Repair Centers that have Energy otherwise with any motor manufacturer met the requirements a Certificate that or any of the client categories is renewed every year. Launched in Advanced Energy is an independent mentioned above. Neither is the 1999, the PEV program precedes a organization, chartered by the North company controlled by any other entity similar program started in 2014 by the Carolina Utilities Commission to fulfill than its Management and Board of Electrical Apparatus Serves Association, the mission for which it was setup. Directors, appointed by the sitting the trade association for Motor Repair Advanced Energy is a nonprofit energy Governor of North Carolina. Centers. Advanced Energy was services and engineering firm working Further we assert Advanced Energy consequently selected as one of the with electric utilities, government has no conflict of interest with any of approved Auditors for the EASA agencies, public and private its clients with respect to operating a program. organizations to provide research, (2) Advanced Energy runs a testing, training, consulting and nationally recognized motor certification program in the residential program design services in the certification program. housing market called SystemVisionTM. residential, commercial and industrial 5. Appendices 2 SystemVisionTM is an Advanced Energy sectors markets. Certification Program for affordable Advanced Energy’s delivery team is 5.1 Accreditation Certificate From homes whereby homes that are built to organized into the following business ANSI Advanced Energy’s specifications are divisions—Building Science, Energy (attached) guaranteed a specific heating and Efficiency Services, Transportation cooling energy consumption at a Services, Solar, and Motors and Drives. 2 Attachments and data submitted by Advanced TM specified comfort level. SystemVision The company does business in those Energy with its petition for rulemaking are available Certified homes that have their heating key markets. in the docket at http://www.regulations.gov.

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5.2 Accreditation Certificate From DEPARTMENT OF ENERGY voluntary agreements. The existing NVLAP international transmission facilities to [OE Docket No. EA–476] be utilized by the Applicant have (attached) Application To Export Electric Energy; previously been authorized by 5.3 Accreditation Certificate From ALEL Technologies LLC Presidential permits issued pursuant to NOM? Executive Order 10485, as amended, AGENCY: Office of Electricity, (attached) and are appropriate for open access Department of Energy (DOE). transmission by third parties. ACTION: Notice of application. 5.4 Form 103 Procedural Matters: Any person (attached) SUMMARY: ALEL Technologies LLC desiring to be heard in this proceeding (Applicant or ALEL) has applied for should file a comment or protest to the 5.5 MBIA authorization to transmit electric energy application at the address provided (attached) from the United States to Mexico above. Protests should be filed in [FR Doc. 2019–14462 Filed 7–5–19; 8:45 am] pursuant to the Federal Power Act. accordance with Rule 211 of the Federal BILLING CODE 6450–01–P DATES: Comments, protests, or motions Energy Regulatory Commission’s (FERC) to intervene must be submitted on or Rules of Practice and Procedure (18 CFR before August 7, 2019. 385.211). Any person desiring to DEPARTMENT OF ENERGY ADDRESSES: Comments, protests, become a party to this proceeding motions to intervene, or requests for should file a motion to intervene at the Advanced Scientific Computing more information should be addressed above address in accordance with FERC Advisory Committee to: Office of Electricity, Mail Code: OE– Rule 214 (18 CFR 385.214). Five (5) 20, U.S. Department of Energy, 1000 copies of such comments, protests, or AGENCY: Office of Science, Department Independence Avenue SW, Washington, of Energy. motions to intervene should be sent to DC 20585–0350. Because of delays in the address provided above on or before ACTION: Notice of Renewal. handling conventional mail, it is the date listed above. recommended that documents be Comments and other filings SUMMARY: Pursuant to the Federal transmitted by overnight mail, by concerning ALEL’s application to export Advisory Committee Act, and in electronic mail to Electricity.Exports@ accordance with Title 41 of the Code of hq.doe.gov, or by facsimile to 202–586– electric energy to Mexico should be Federal Regulations, and following 8008. clearly marked with OE Docket No. EA– 476. An additional copy is to be consultation with the Committee SUPPLEMENTARY INFORMATION: The provided directly to both Joaquin Leal Management Secretariat, General Department of Energy (DOE) regulates Jimenez, ALEL Technologies LLC, 778 Services Administration, notice is exports of electricity from the United hereby given that the Advanced States to a foreign country, pursuant to Boylston St, Unit 6B, Boston, MA Scientific Computing Advisory sections 301(b) and 402(f) of the 02199, and Antonio Pen˜ a, Greenberg Committee will be renewed for a two- Department of Energy Organization Act Traurig, PA, 333 SE 2nd Avenue, year period beginning on June 28, 2019. (42 U.S.C. 7151(b) and 7172(f)). Such Miami, FL 33131. The Committee will provide advice to exports require authorization under A final decision will be made on this the Director, Office of Science (DOE), on section 202(e) of the Federal Power Act application after the environmental the Advanced Scientific Computing (16 U.S.C. 824a(e)). impacts have been evaluated pursuant Research Program managed by the On June 24, 2019, DOE received an to DOE’s National Environmental Policy Office of Advanced Scientific application from ALEL for authorization Act Implementing Procedures (10 CFR Computing Research. to transmit electric energy from the part 1021) and after DOE determines Additionally, the renewal of the United States to Mexico as a power that the proposed action will not have Advanced Scientific Computing marketer for a five-year term using an adverse impact on the sufficiency of Advisory Committee has been existing international transmission supply or reliability of the U.S. electric determined to be essential to the facilities. The Applicant states that it power supply system. conduct of the Department of Energy will make wholesale purchases in the business and to be in the public interest Electric Reliability Council of Texas and Copies of this application will be in connection with the performance of the California Independent System made available, upon request, for public duties imposed upon the Department of Operator, and possibly in other inspection and copying at the address Energy, by law and agreement. The geographic regions and energy markets provided above, by accessing the Committee will operate in accordance in the United States as well. program website at http://energy.gov/ with the provisions of the Federal The Application states that ‘‘[N]either node/11845, or by emailing Angela Troy Advisory Committee Act, adhering to ALEL, nor its owner, owns, operates or at [email protected]. the rules and regulations in controls any electric generation, Signed in Washington, DC, on July 1, 2019. implementation of that Act. transmission or distribution facilities,’’ Christopher Lawrence, FOR FURTHER INFORMATION CONTACT: that neither ‘‘has a franchised service area,’’ and that ALEL has no ‘‘obligation Management and Program Analyst, Christine Chalk at (301) 903–5152 or Transmission Permitting and Technical email: [email protected]. to serve native load within a franchised service area.’’ The electric energy that Assistance, Office of Electricity. Signed in Washington DC, on June 28, the Applicant proposes to export to [FR Doc. 2019–14445 Filed 7–5–19; 8:45 am] 2019. Mexico over international electric BILLING CODE 6450–01–P Rachael J. Beitler, transmission facilities would be surplus Acting Committee Management Officer. energy purchased from third parties [FR Doc. 2019–14460 Filed 7–5–19; 8:45 am] such as electric utilities and Federal BILLING CODE 6450–01–P power marketing agencies pursuant to

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DEPARTMENT OF ENERGY 30 of the Federal Power Act (FPA). The Qualifying Conduit Hydropower proposed Weir Road Pressure Reducing Facility Description: The proposed Federal Energy Regulatory Valve Project would have an installed project would consist of: (1) One 300– Commission capacity of 300 watts (W), and would be W turbine-generator unit; (2) a 2-inch [Docket No. CD19–9–000] located along an existing 12-inch pipeline transporting water from the pipeline within the Weir Road pressure existing 12-inch pipeline to the City of Beaverton, Oregon; Notice of reducing valve vault in the City of generator, and returning it to the Preliminary Determination of a Beaverton, Washington County, Oregon. mainline; and (3) appurtenant facilities. Qualifying Conduit Hydropower Applicant Contact: Geoff Hunsaker, The proposed project would have an Facility and Soliciting Comments and City of Beaverton, PO Box 4755, estimated annual generation of 2.7 Motions To Intervene Beaverton, OR 97076, Phone No. (503) megawatt-hours. 572–4239, Email: ghunsaker@ On June 14, 2019, as supplemented A qualifying conduit hydropower beavertonoregon.gov. June 20, 2019, the City of Beaverton, facility is one that is determined or Oregon, filed a notice of intent to FERC Contact: Christopher Chaney, deemed to meet all of the criteria shown construct a qualifying conduit Phone No. (202) 502–6778, Email: in the table below. hydropower facility, pursuant to section [email protected].

TABLE 1—CRITERIA FOR QUALIFYING CONDUIT HYDROPOWER FACILITY

Satisfies Statutory provision Description (Y/N)

FPA 30(a)(3)(A) ...... The conduit the facility uses is a tunnel, canal, pipeline, aqueduct, flume, ditch, or similar man- Y made water conveyance that is operated for the distribution of water for agricultural, municipal, or industrial consumption and not primarily for the generation of electricity. FPA 30(a)(3)(C)(i) ...... The facility is constructed, operated, or maintained for the generation of electric power and uses Y for such generation only the hydroelectric potential of a non-federally owned conduit. FPA 30(a)(3)(C)(ii) ...... The facility has an installed capacity that does not exceed 40 megawatts ...... Y FPA 30(a)(3)(C)(iii) ...... On or before August 9, 2013, the facility is not licensed, or exempted from the licensing require- Y ments of Part I of the FPA.

Preliminary Determination: The filing responds; (3) state the name, accordance with 18 CFR 4.34(b) and proposed Weir Road Pressure Reducing address, and telephone number of the 385.2010. Valve Project will not interfere with the person filing; and (4) otherwise comply Locations of Notice of Intent: Copies primary purpose of the conduit, which with the requirements of sections of the notice of intent can be obtained is to transport water for municipal use. 385.2001 through 385.2005 of the directly from the applicant or such Therefore, based upon the above 1 Commission’s regulations. All copies can be viewed and reproduced at criteria, Commission staff preliminarily comments contesting Commission staff’s the Commission in its Public Reference determines that the proposal satisfies preliminary determination that the the requirements for a qualifying Room, Room 2A, 888 First Street NE, facility meets the qualifying criteria Washington, DC 20426. The filing may conduit hydropower facility, which is must set forth their evidentiary basis. not required to be licensed or exempted also be viewed on the web at http:// The Commission strongly encourages from licensing. www.ferc.gov/docs-filing/elibrary.asp Comments and Motions to Intervene: electronic filing. Please file motions to using the ‘‘eLibrary’’ link. Enter the Deadline for filing comments contesting intervene and comments using the docket number (i.e., CD19–9) in the whether the facility meets the qualifying Commission’s eFiling system at http:// docket number field to access the criteria is 30 days from the issuance www.ferc.gov/docs-filing/efiling.asp. document. For assistance, call toll-free date of this notice. Commenters can submit brief comments 1–866–208–3676 or email Deadline for filing motions to up to 6,000 characters, without prior [email protected]. For TTY, intervene is 30 days from the issuance registration, using the eComment system call (202) 502–8659. at http://www.ferc.gov/docs-filing/ date of this notice. Dated: June 27, 2019. Anyone may submit comments or a ecomment.asp. You must include your motion to intervene in accordance with name and contact information at the end Kimberly D. Bose, the requirements of Rules of Practice of your comments. For assistance, Secretary. and Procedure, 18 CFR 385.210 and please contact FERC Online Support at [FR Doc. 2019–14452 Filed 7–5–19; 8:45 am] 385.214. Any motions to intervene must [email protected], (866) BILLING CODE 6717–01–P be received on or before the specified 208–3676 (toll free), or (202) 502–8659 deadline date for the particular (TTY). In lieu of electronic filing, please proceeding. send a paper copy to: Secretary, Federal Filing and Service of Responsive Energy Regulatory Commission, 888 Documents: All filings must (1) bear in First Street NE, Washington, DC 20426. all capital letters the ‘‘COMMENTS A copy of all other filings in reference CONTESTING QUALIFICATION FOR A to this application must be accompanied CONDUIT HYDROPOWER FACILITY’’ by proof of service on all persons listed or ‘‘MOTION TO INTERVENE,’’ as in the service list prepared by the applicable; (2) state in the heading the Commission in this proceeding, in name of the applicant and the project number of the application to which the 1 18 CFR 385.2001–2005 (2018).

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DEPARTMENT OF ENERGY days from the date the Commission related to this or other pending projects. issues this notice. For assistance, call 1–866–208–3676, Federal Energy Regulatory The Commission strongly encourages email [email protected], or Commission electronic filing. Please file comments, for TTY, call (202) 502–8659. motions to intervene, or protests using m. Individuals desiring to be included Notice of Application for Partial the Commission’s eFiling system at on the Commission’s mailing list should Transfer of License and Amendment of http://www.ferc.gov/docs-filing/ so indicate by writing to the Secretary License and Soliciting Comments, efiling.asp. Commenters can submit of the Commission. Motions To Intervene, and Protests brief comments up to 6,000 characters, n. Comments, Protests, or Motions to without prior registration, using the Intervene: Anyone may submit Project No. eComment system at http:// comments, a protest, or a motion to www.ferc.gov/docs-filing/ Pacific Gas & Electric Company ...... 2310–227 intervene in accordance with the 2784–006 ecomment.asp. You must include your requirements of the Commission’s Rules Nevada Irrigation District ...... 14530–001 name and contact information at the end of Practice and Procedure, 18 CFR of your comments. For assistance, 385.210, .211, and .214. In determining Take notice that the following please contact FERC Online Support at the appropriate action to take, the hydroelectric application has been filed [email protected], (866) Commission will consider all protests with the Commission and is available 208–3676 (toll free), or (202) 502–8659 and other comments filed, but only for public inspection. (TTY). In lieu of electronic filing, please those who file a motion to intervene in a. Type of Application: Partial send a paper copy to: Secretary, Federal accordance with the Commission’s Transfer of License and Amendment. Energy Regulatory Commission, 888 Rules may become a party to the b. Project Nos.: 2310–227, 2784–006, First Street NE, Washington, DC 20426. proceeding. Any comments, protests, or The first page of any filing should and 14530–001. motions to intervene must be received include docket numbers P–2310–227, c. Date filed: January 22, 2019. on or before the specified comment date P–2784–006, and P–14530–001. d. Applicants: Pacific Gas & Electric for the particular application. The Commission’s Rules of Practice o. Filing and Service of Responsive Company (transferor), Nevada Irrigation and Procedure require all intervenors District (transferee). Documents: Any filing must (1) bear in filing documents with the Commission all capital letters the title e. Name of Projects: Drum Spaulding to serve a copy of that document on Hydroelectric Project (P–2310), Rollins ‘‘COMMENTS’’, ‘‘PROTEST’’, or each person on the official service list ‘‘MOTION TO INTERVENE’’ as Transmission Line Project (P–2784), for the project. Further, if an intervenor proposed Deer Creek Hydroelectric applicable; (2) set forth in the heading files comments or documents with the the name of the applicant and the Project (P–14530). Commission relating to the merits of an project number of the application to f. Location: Deer Creek development issue that may affect the responsibilities which the filing responds; (3) furnish of the Drum Spaulding Project—located of a particular resource agency, they the name, address, and telephone on Deer Creek in Nevada County, must also serve a copy of the document number of the person protesting or California. Rollins Transmission Line on that resource agency. Project—located in the Bear River basin k. Description of Transfer and intervening; and (4) otherwise comply in Placer and Nevada counties, Amendment Requests: The applicants with the requirements of 18 CFR California. request a partial transfer of the Deer 385.2001 through 385.2005. All g. Filed Pursuant to: Federal Power Creek Development, which is part of comments, motions to intervene, or Act, 16 U.S.C. 791a—825r. Pacific Gas & Electric Company’s Drum- protests must set forth their evidentiary h. Applicants Contacts: For Spaulding Project No. 2310, to the basis. A copy of all other filings in Transferor: Ms. Annette Faraglia, Chief Nevada Irrigation District and to reference to this application must be Counsel Hydro Generation, Pacific Gas establish it as a separate project, Deer accompanied by proof of service on all and Electric Company, 77 Beale Street, Creek Project No. 14530. The applicants persons listed in the service list B30A–3005, San Francisco, CA 94105, also request that the Commission prepared by the Commission in this (415) 973–7145, Email: remove the transmission line for the proceeding, in accordance with 18 CFR [email protected] and Ms. Deer Creek Development from the 4.34(b) and 385.2010. Stephanie Maggard, Director, Power Drum-Spaulding Project and incorporate Dated: June 27, 2019. Generation, Pacific Gas and Electric it into Pacific Gas & Electric Company’s Kimberly D. Bose, Company, 245 Market Street, N11E– license for the Rollins Transmission Secretary. 1136, San Francisco, CA 94105, (415) Line Project No. 2784. [FR Doc. 2019–14447 Filed 7–5–19; 8:45 am] 973–2812, Email: Stephanie.maggard@ l. Location of the Application: A copy pge.com. of the application is available for BILLING CODE 6717–01–P For Transferee: Mr. Remleh inspection and reproduction at the Scherzinger, General Manager, Nevada Commission’s Public Reference Room, DEPARTMENT OF ENERGY Irrigation District, 1036 West Main St., located at 888 First Street NE, Room 2A, Grass Valley, CA 95945–5424, (530) Washington, DC 20426, or by calling Federal Energy Regulatory 273–6185, email: Scherzinger@ (202) 502–8371. This filing may also be Commission nidwater.com and Minasian Law Firm, viewed on the Commission’s website at ATTN: Andrew McClure, District http://www.ferc.gov/docs-filing/ [Docket No. IC19–30–000] Counsel, 1681 Bird Street, Oroville, CA elibrary.asp. Enter the docket number Commission Information Collection 95965, (530) 533–2885, email: excluding the last three digits in the Activities (FERC–920—Electric [email protected]. docket number field to access the Quarterly Reports); Comment Request; i. FERC Contacts: Steven Sachs, (202) document. You may also register online Extension 502–8666 or [email protected]. at http://www.ferc.gov/docs-filing/ j. Deadline for filing comments, esubscription.asp to be notified via AGENCY: Federal Energy Regulatory motions to intervene, and protests: 30 email of new filings and issuances Commission, Department of Energy.

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ACTION: Notice of information collection with no changes to the current reporting The Commission also adopted an and request for comments. requirements.1 Electric Quarterly Report Data Comments: Comments are invited on: Dictionary, which provides in one SUMMARY: In compliance with the (1) Whether the collection of document the definitions of certain requirements of the Paperwork information is necessary for the proper terms and values used in filing EQR Reduction Act of 1995 (PRA), the performance of the functions of the data.4 Federal Energy Regulatory Commission Commission, including whether the (Commission or FERC) is soliciting information will have practical utility; To increase transparency broadly public comment on the currently (2) the accuracy of the agency’s across all wholesale markets subject to approved information collection, FERC– estimates of the burden and cost of the the Commission’s jurisdiction, the 920 [Electric Quarterly Reports (EQR)]. collection of information, including the Commission issued Order No. 768 in 5 DATES: Comments on the collections of validity of the methodology and 2012. Order No. 768 required market information are due SEPTEMBER 6, assumptions used; (3) ways to enhance participants that are excluded from the 2019. the quality, utility and clarity of the Commission’s jurisdiction under the Federal Power Act section 205 (non- ADDRESSES: You may submit comments information collection; and (4) ways to (identified by Docket No. IC19–30–000) minimize the burden of the collection of public utilities) and have more than a de by either of the following methods: information on those who are to minimis market presence to file EQRs • eFiling at Commission’s website: respond, including the use of automated with the Commission. In addition, http://www.ferc.gov/docs-filing/ collection techniques or other forms of Order No. 768 revised the EQR filing efiling.asp information technology. requirements to build upon the • Mail/Hand Delivery/Courier: Abstract: The Commission originally Commission’s prior improvements to Federal Energy Regulatory Commission, set forth the EQR filing requirements in the reporting requirements and further Secretary of the Commission, 888 First Order No. 2001 (Docket No. RM01–8– enhance the goals of providing greater Street NE, Washington, DC 20426. 000, issued April 25, 2002, at http:// price transparency, promoting Please reference the specific elibrary.ferc.gov/idmws/search/ competition, instilling confidence in the collection number and/or title in your intermediate.asp?link_file=yes& fairness of the markets, and providing a comments. doclist=2270047). Order No. 2001 better means to detect and discourage Instructions: All submissions must be required public utilities to electronically anti-competitive, discriminatory, and formatted and filed in accordance with file EQRs summarizing transaction manipulative practices. submission guidelines at: http:// information for short-term and long- www.ferc.gov/help/submission- term cost-based sales and market-based EQR information allows the public to guide.asp. For user assistance contact rate sales and the contractual terms and assess supply and demand FERC Online Support by email at conditions in their agreements for all fundamentals and to price interstate [email protected], or by phone jurisdictional services.2 The wholesale market transactions. This, in at: (866) 208–3676 (toll-free), or (202) Commission established the EQR turn, results in greater market 502–8659 for TTY. reporting requirements to help ensure confidence, lower transaction costs, and Docket: Users interested in receiving the collection of information needed to ultimately supports competitive automatic notification of activity in this perform its regulatory functions over markets. In addition, the data filed in docket or in viewing/downloading transmission and sales, while making the EQR strengthens the Commission’s comments and issuances in this docket data more useful to the public and ability to exercise its wholesale electric may do so at http://www.ferc.gov/docs- allowing public utilities to better fulfill rate and electric power transmission filing/docs-filing.asp. their responsibility under FPA section oversight and enforcement FOR FURTHER INFORMATION CONTACT: 205(c) to have rates on file in a responsibilities in accordance with the Ellen Brown may be reached by email convenient form and place. As noted in Federal Power Act. Without this at [email protected], telephone Order No. 2001, the EQR data is information, the Commission would at (202) 502–8663, and fax at (202) 273– designed to ‘‘provide greater price lack some of the data it needs to 0873. transparency, promote competition, examine and approve or modify electric SUPPLEMENTARY INFORMATION: enhance confidence in the fairness of rates. Title: FERC–920 [Electric Quarterly the markets, and provide a better means Type of Respondent: Public utilities, to detect and discourage discriminatory Reports (EQR)]. and non-public utilities with more than OMB Control No.: 1902–0255. practices.’’ a de minimis market presence. Type of Respondent: Public utilities Since issuing Order No. 2001, the and non-public utilities with more than Commission has provided guidance and Estimate of Annual Burden and a de minimis market presence. refined the reporting requirements, as Cost: 6 The Commission estimates the Type of Request: Three-year extension necessary, to reflect changes in the annual public reporting burden for the of the FERC–920 information collection Commission’s rules and regulations.3 information collection as:

1 This does not include any changes to the No. 2001–E, 105 FERC ¶ 61,352 (2003), order on reassignments in EQRs); Notice of Electric Quarterly estimates from the Notice Seeking Comments on clarification, Order No. 2001–F, 106 FERC ¶ 61,060 Reports Technical Conference, 73 FR 2477 (Jan. 15, proposed revisions and clarifications to the EQR (2004), order revising filing requirements, Order No. 2008) (announcing a technical conference to discuss reporting requirements, currently pending in 2001–G, 72 FR 56735 (Oct. 4, 2007), 120 FERC changes associated with the EQR Data Dictionary). Docket No. RM01–8–000, et al. ¶ 61,270, order on reh’g and clarification, Order No. 4 Order No. 2001–G, 120 FERC ¶ 61,270 (2007). 2 Revised Public Utility Filing Requirements, 2001–H, 73 FR 1876 (Jan. 10, 2008), 121 FERC 5 Order No. 768, 77 FR 61896 (Oct. 11, 2012), Order No. 2001, 67 FR 31043 (May 8, 2002), FERC ¶ 61,289 (2007), order revising filing requirements, FERC Stats. & Regs. ¶ 31,336 (2012). Stats. & Regs. ¶ 31,127, reh’g denied, Order No. Order No. 2001–I, 73 FR 65526 (Nov. 4, 2008), 125 6 The cost is based on FERC’s 2019 Commission- 2001–A, 100 FERC ¶ 61,074, reh’g denied, Order FERC ¶ 61,103 (2008). wide average salary cost (salary plus benefits) of No. 2001–B, 100 FERC ¶ 61,342, order directing 3 See, e.g., Revised Public Utility Filing $80.00/hour. The Commission staff believes the filing, Order No. 2001–C, 101 FERC ¶ 61,314 (2002), Requirements for Electric Quarterly Reports, 124 FERC FTE (full-time equivalent) average cost for order directing filing, Order No. 2001–D, 102 FERC FERC ¶ 61,244 (2008) (providing guidance on the wages plus benefits is representative of the ¶ 61,334, order refining filing requirements, Order filing of information on transmission capacity corresponding cost for the industry respondents.

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FERC–920—ELECTRIC QUARTERLY REPORT (EQR)

Annual number of Total number Average burden Total annual Number of respondents responses per of responses hrs. & cost per burden hours & respondent response total annual cost

(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5)

2,595 ...... 4 10,380 18.1 hrs.; $1,448 ...... 187,878 hrs.; $15,030,240.

Dated: June 27, 2019. Accession Number: 20190628–5331. Comments Due: 5 p.m. ET 7/22/19. Kimberly D. Bose, Comments Due: 5 p.m. ET 8/27/19. Docket Numbers: ER19–2277–001. Secretary. Docket Numbers: ER18–1077–001; Applicants: ITC Midwest LLC. [FR Doc. 2019–14451 Filed 7–5–19; 8:45 am] ER15–1218–008; ER16–38–006; ER16– Description: Tariff Amendment: ITC BILLING CODE 6717–01–P 39–005; ER17–157–004; ER17–2162– Midwest Supplemental Filing of 005; ER17–2163–005; ER17–2341–002; Communications Sharing Agreement to ER17–2453–002; ER18–1076–001; be effective 6/28/2019. DEPARTMENT OF ENERGY ER18–1775–003; ER18–713–001. Filed Date: 7/1/19. Applicants: GASNA 36P, LLC, CA Accession Number: 20190701–5273. Federal Energy Regulatory Flats Solar 150, LLC, GASNA 6P, LLC, Comments Due: 5 p.m. ET 7/22/19. Commission CA Flats Solar 130, LLC, Imperial Valley Docket Numbers: ER19–2315–000. Solar 3, LLC, Moapa Southern Paiute Combined Notice of Filings #2 Applicants: Midcontinent Solar, LLC, SunE Beacon Site 2 LLC, Independent System Operator, Inc., Take notice that the Commission Kingbird Solar A, LLC, Kingbird Solar WPPI Energy. received the following electric rate B, LLC, Solar Star California XIII, LLC, Description: § 205(d) Rate Filing: filings: 64KT 8me LLC, SunE Beacon Site 5 2019–07–01_WPPI Revisions to Docket Numbers: ER10–1821–020. LLC. Attachments O, GG & MM to be effective Applicants: Goshen Phase II LLC. Description: Triennial Market-Based 9/1/2019. Description: Updated Market Power Rate Update for the Capital Dynamics Filed Date: 7/1/19. Analysis for Northwest Region of Southwest MBR Sellers. Accession Number: 20190701–5102. Goshen Phase II LLC. Filed Date: 6/28/19. Comments Due: 5 p.m. ET 7/22/19. Accession Number: 20190628–5337. Filed Date: 6/28/19. Docket Numbers: ER19–2316–000. Accession Number: 20190628–5330. Comments Due: 5 p.m. ET 8/27/19. Applicants: Renewable Energy Asset Comments Due: 5 p.m. ET 8/27/19. Docket Numbers: ER18–1489–001; Management Group, LLC. Docket Numbers: ER10–2249–008. ER13–1101–026; ER13–1541–025; Description: Baseline eTariff Filing: Applicants: Portland General Electric ER14–661–016; ER14–787–019; ER15– Application For Market Based Rate to be Company. 1475–011; ER15–2593–010; ER15–54– effective 7/2/2019. Description: Updated Market Power 010; ER15–55–010; ER16–1154–008; Filed Date: 7/1/19. Analysis in the Northwest Region for ER16–1882–003; ER16–452–009; ER16– Accession Number: 20190701–5103. Portland General Electric Company. 705–007; ER16–706–007; ER17–2508– Comments Due: 5 p.m. ET 7/22/19. Filed Date: 6/28/19. 002; ER17–252–003; ER17–532–002. Accession Number: 20190628–5334. Applicants: SP Cimarron I, LLC, Docket Numbers: ER19–2317–000. Comments Due: 5 p.m. ET 8/27/19. Parrey, LLC, Spectrum Nevada Solar, Applicants: Midcontinent Independent System Operator, Inc., Docket Numbers: ER13–520–009; LLC, Campo Verde Solar, LLC, SG2 MidAmerican Energy Company. ER10–2605–013; ER12–1626–010; Imperial Valley LLC, Macho Springs Description: § 205(d) Rate Filing: ER13–1266–021; ER13–1267–009; Solar, LLC, Lost Hills Solar, LLC, 2019–07–01_SA 2787 MEC–IPL 1st Rev ER13–1268–009; ER13–1269–009; Blackwell Solar, LLC, North Star Solar, WDS (George) to be effective 9/1/2019. ER13–1270–009; ER13–1271–009; LLC, Desert Stateline LLC, RE Filed Date: 7/1/19. ER13–1272–009; ER13–1273–009; Tranquillity LLC, RE Garland A LLC, RE Accession Number: 20190701–5220. ER13–1441–009; ER13–1442–009; Garland LLC, Boulder Solar Power, LLC, Comments Due: 5 p.m. ET 7/22/19. ER13–521–009; ER15–2211–018. RE Gaskell West 1 LLC, PPA Grand Applicants: Pinyon Pines Wind I, Johanna LLC, 2016 ESA Project Docket Numbers: ER19–2318–000. LLC, Pinyon Pines Wind II, LLC, Solar Company, LLC. Applicants: New York State Electric & Star California XIX, LLC, Solar Star Description: Compliance filing of SP Gas Corporation. California XX, LLC, Topaz Solar Farms Cimarron I, LLC, et. al. 2886–000. Description: § 205(d) Rate Filing: Rate LLC, CE Leathers Company, Del Ranch Filed Date: 6/28/19. Schedule FERC No. 87 Supplement to Company, Elmore Company, Fish Lake Accession Number: 20190628–5332. be effective 9/1/2019. Power LLC, Salton Sea Power Comments Due: 5 p.m. ET 7/19/19. Filed Date: 7/1/19. Generation Company, Salton Sea Power Docket Numbers: ER19–1485–001. Accession Number: 20190701–5225. L.L.C., Vulcan/BN Geothermal Power Applicants: Southwest Power Pool, Comments Due: 5 p.m. ET 7/22/19. Company, Yuma Cogeneration Inc. Docket Numbers: ER19–2319–000. Associates, CalEnergy, LLC, Description: Compliance filing: Applicants: Crystal Lake Wind II, MidAmerican Energy Services, LLC. Compliance Filing in ER19–1485— LLC. Description: Triennial Market Power NIMECA Formula Rate to be effective 6/ Description: Tariff Cancellation: Update for the Southwest Region of the 1/2019. Crystal lake Wind II, LLC Notice of BHE MBR Sellers. Filed Date: 7/1/19. Cancellation of Market-Based Rate Tariff Filed Date: 6/28/19. Accession Number: 20190701–5291. to be effective 7/2/2019.

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Filed Date: 7/1/19. Description: Self-Certification of FC of authorization, under 18 CFR part 34, of Accession Number: 20190701–5230. I Squared Capital. future issuances of securities and Comments Due: 5 p.m. ET 7/22/19. Filed Date: 6/28/19. assumptions of liability, is July 22, Docket Numbers: ER19–2320–000. Accession Number: 20190628–5315. 2019. Applicants: Osceola Windpower, LLC. Comments Due: 5 p.m. ET 7/19/19. The Commission encourages Description: Tariff Cancellation: The filings are accessible in the electronic submission of protests and Osceola Windpower, LLC Notice of Commission’s eLibrary system by interventions in lieu of paper, using the Cancellation of Market-Based Rate Tariff clicking on the links or querying the FERC Online links at http:// to be effective 7/2/2019. docket number. www.ferc.gov. To facilitate electronic Filed Date: 7/1/19. Any person desiring to intervene or service, persons with internet access Accession Number: 20190701–5235. protest in any of the above proceedings who will eFile a document and/or be Comments Due: 5 p.m. ET 7/22/19. must file in accordance with Rules 211 listed as a contact for an intervenor must create and validate an Docket Numbers: ER19–2321–000. and 214 of the Commission’s eRegistration account using the Applicants: Osceola Windpower II, Regulations (18 CFR 385.211 and eRegistration link. Select the eFiling LLC. 385.214) on or before 5:00 p.m. Eastern link to log on and submit the Description: Tariff Cancellation: time on the specified comment date. Protests may be considered, but intervention or protests. Osceola Windpower II, LLC Notice of Persons unable to file electronically Cancellation of Market-Based Rate Tariff intervention is necessary to become a party to the proceeding. should submit an original and 5 copies to be effective 7/2/2019. of the intervention or protest to the Filed Date: 7/1/19. eFiling is encouraged. More detailed information relating to filing Federal Energy Regulatory Commission, Accession Number: 20190701–5241. 888 First Street NE, Washington, DC Comments Due: 5 p.m. ET 7/22/19. requirements, interventions, protests, service, and qualifying facilities filings 20426. Docket Numbers: ER19–2322–000. The filings in the above-referenced can be found at: http://www.ferc.gov/ Applicants: Arizona Public Service proceeding are accessible in the docs-filing/efiling/filing-req.pdf. For Company. Commission’s eLibrary system by other information, call (866) 208–3676 Description: § 205(d) Rate Filing: Rate clicking on the appropriate link in the Schedule No. 211 to be effective 9/1/ (toll free). For TTY, call (202) 502–8659. above list. They are also available for 2019. Dated: July 1, 2019. electronic review in the Commission’s Filed Date: 7/1/19. Nathaniel J. Davis, Sr., Public Reference Room in Washington, Accession Number: 20190701–5251. Deputy Secretary. DC. There is an eSubscription link on Comments Due: 5 p.m. ET 7/22/19. [FR Doc. 2019–14426 Filed 7–5–19; 8:45 am] the website that enables subscribers to Docket Numbers: ER19–2323–000. BILLING CODE 6717–01–P receive email notification when a Applicants: Midcontinent document is added to a subscribed Independent System Operator, Inc., docket(s). For assistance with any FERC Ameren Illinois Company. DEPARTMENT OF ENERGY Online service, please email Description: § 205(d) Rate Filing: [email protected]. or call 2019–07–01_SA 2012 Ameren-City of Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call California, MO 1st Rev WDS to be Commission (202) 502–8659. effective 9/1/2019. [Docket No. ER19–2269–000] Dated: July 1, 2019. Filed Date: 7/1/19. Nathaniel J. Davis, Sr., Accession Number: 20190701–5261. Dougherty County Solar, LLC; Deputy Secretary. Comments Due: 5 p.m. ET 7/22/19. Supplemental Notice That Initial [FR Doc. 2019–14427 Filed 7–5–19; 8:45 am] Market-Based Rate Filing Includes Docket Numbers: ER19–2324–000. BILLING CODE 6717–01–P Applicants: Southwest Power Pool, Request for Blanket Section 204 Inc. Authorization Description: § 205(d) Rate Filing: This is a supplemental notice in the DEPARTMENT OF ENERGY 3125R6 Basin Electric Power above-referenced Dougherty County Cooperative NITSA NOA to be effective Federal Energy Regulatory Solar, LLC’s application for market- Commission 6/1/2019. based rate authority, with an Filed Date: 7/1/19. accompanying rate tariff, noting that [Docket No. AD19–15–000] Accession Number: 20190701–5279. such application includes a request for Comments Due: 5 p.m. ET 7/22/19. blanket authorization, under 18 CFR Managing Transmission Line Ratings; Docket Numbers: ER19–2325–000. part 34, of future issuances of securities Notice of Technical Conference Applicants: Alabama Power and assumptions of liability. Take notice that the Federal Energy Company. Any person desiring to intervene or to Regulatory Commission (Commission) Description: § 205(d) Rate Filing: protest should file with the Federal will convene a staff-led technical APCo-Gulf TFCAT A&R Service Energy Regulatory Commission, 888 conference in the above-referenced Agreements Amendment Filing to be First Street NE, Washington, DC 20426, proceeding on Tuesday and Wednesday, effective 1/1/2019. in accordance with Rules 211 and 214 September 10–11, 2019 from Filed Date: 7/1/19. of the Commission’s Rules of Practice approximately 8:45 a.m. to 5:00 p.m. Accession Number: 20190701–5318. and Procedure (18 CFR 385.211 and Eastern time. The conference will be Comments Due: 5 p.m. ET 7/22/19. 385.214). Anyone filing a motion to held in Hearing Room 1 at Commission Take notice that the Commission intervene or protest must serve a copy headquarters, 888 First Street NE, received the following foreign utility of that document on the Applicant. Washington, DC 20426. Commissioners company status filings: Notice is hereby given that the may attend and participate. Docket Numbers: FC19–1–000. deadline for filing protests with regard The purpose of this conference is to Applicants: I Squared Capital. to the applicant’s request for blanket discuss issues related to transmission

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line ratings, with a focus on dynamic information related to logistics, please Land Management (BLM), U.S. Fish and and ambient-adjusted line ratings.1 In contact Sarah McKinley at Wildlife Service, National Park Service, particular, this conference will explore [email protected] or (202) 502– U.S. Department of Energy, and what transmission line rating and 8368. National Marine Fisheries Service related practices might constitute best Dated: June 28, 2019. participated as cooperating agencies in practices, and what, if any, Commission the preparation of this EIS. Cooperating Kimberly D. Bose, action in these areas might be agencies have jurisdiction by law or appropriate. Further details and a Secretary. special expertise with respect to formal agenda will be issued prior to the [FR Doc. 2019–14429 Filed 7–5–19; 8:45 am] resources potentially affected by the conference. BILLING CODE 6717–01–P proposal and participate in the NEPA The workshop will be open for the analysis. Although the cooperating public to attend. Advance registration is agencies provided input to the not required to attend, but is DEPARTMENT OF ENERGY conclusions and recommendations encouraged. Attendees may register at Federal Energy Regulatory presented in the draft EIS, the agencies the following web page: http:// Commission will present their own conclusions and www.ferc.gov/whats-new/registration/ recommendations in their respective 09-10-19-form.asp. In-person attendees [Docket No. CP17–178–000] Records of Decision for the Project. should allow time to pass through The BLM will adopt and use the EIS building security procedures before the Alaska Gasline Development to consider issuing a right-of-way grant start time of the technical conference. Corporation; Notice of Availability of for the portion of the Project on BLM- Those wishing to participate as a the Draft Environmental Impact managed lands. Other cooperating panel member in this conference should Statement for the Proposed Alaska agencies will use this EIS in their submit a nomination form online by LNG Project regulatory processes and to satisfy 5:00 p.m. on July 17, 2019 at: http:// compliance with NEPA and other The staff of the Federal Energy www.ferc.gov/whats-new/registration/ related federal environmental laws (e.g., Regulatory Commission (FERC or 09-10-19-speaker-form.asp. At this web the National Historic Preservation Act). Commission) with the participation of page, please provide an abstract of the Section 810(a) of the Alaska National the cooperating agencies listed below, issue(s) you propose to address. Due to Interest Lands Conservation Act, 16 has prepared a draft environmental time constraints, we may not be able to United States Code 3120(a), also impact statement (EIS) for the Alaska accommodate all those interested in requires the BLM to evaluate the effects LNG Project (Project) proposed by the speaking. of the alternatives presented in the draft The conference will be transcribed Alaska Gasline Development EIS on subsistence activities, and to and webcast. Transcripts will be Corporation (AGDC). AGDC requests hold public hearings if it finds that any available immediately for a fee from Ace authorization to construct and operate alternative may significantly restrict Reporting (202–347–3700). A link to the new gas treatment facilities, an 806.6- subsistence uses. The preliminary webcast of this event will be available mile-long natural gas pipeline and evaluation of subsistence impacts in the Commission Calendar of Events at associated aboveground facilities, and a indicates that the cumulative case www.ferc.gov. The Capitol Connection 20-million-metric-ton per annum analyzed in the draft EIS may provides technical support for the liquefaction facility to commercialize significantly restrict subsistence uses for webcasts and offers the option of the natural gas resources of Alaska’s the communities of Nuiqsut, Kaktovik, listening to the conferences via phone- North Slope. The Project would have an Utqiagvik, and Anaktuvuk Pass. bridge for a fee. For additional annual average inlet design capacity of Therefore, the BLM will hold public information, visit up to 3.7 billion standard cubic feet per hearings and solicit public testimony in www.CapitolConnection.org or call (703) day and a 3.9 billion standard cubic feet these potentially affected communities. 993–3100. per day peak capacity. The draft EIS assesses the potential Distribution and Comments on the Draft Commission conferences are Environmental Impact Statement accessible under section 508 of the environmental effects of Project Rehabilitation Act of 1973. For construction and operation in The Commission mailed a copy of the accessibility accommodations, please accordance with the requirements of the draft EIS to federal, state, and local send an email to [email protected] National Environmental Policy Act government representatives and or call toll free 1–866–208–3372 (voice) (NEPA). As described in the EIS, the agencies; elected officials; Alaska Native or 202–208–8659 (TTY), or send a fax to FERC staff concludes that approval of tribal governments and Alaska Native 202–208–2106 with the required the Project would result in a number of Claims Settlement Act Corporations; accommodations. significant environmental impacts, but and local libraries and newspapers in For more information about this the majority of impacts would be less the area of the Alaska LNG Project. The technical conference, please contact than significant based on the impact draft EIS was also mailed to property Dillon Kolkmann at Dillon.Kolkmann@ avoidance, minimization, and owners that could be affected by Project ferc.gov or (202) 502–8650. For mitigation measures proposed by AGDC facilities, individuals requesting and those recommended by staff in the intervenor status in the FERC’s 1 For the purposes of this technical conference, draft EIS. However, some of the adverse proceedings, and other interested the following definitions will be used. ‘‘Ambient- impacts would be significant even after parties (i.e., individuals and adjusted line ratings’’ are defined as ratings that are the implementation of mitigation environmental and public interest adjusted daily, hourly, or more frequently to account for ambient air temperatures. ‘‘Dynamic measures. groups who provided scoping comments line ratings’’ are defined as line ratings that are The United States (U.S.) Department or asked to remain on the mailing list). adjusted hourly or more frequently to account for of Transportation Pipeline and Paper copy versions of this EIS were local weather conditions (e.g., ambient temperature, Hazardous Materials Safety mailed to subsistence communities, wind, precipitation, solar radiation) and/or conductor parameters (conductor temperature, Administration, U.S. Environmental libraries, and those specifically tension, sag, clearance) based on data collected by Protection Agency, U.S. Army Corps of requesting them; all others received a local weather and/or line sensors. Engineers, U.S. Coast Guard, Bureau of CD version.

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The draft EIS is also available in 000) with your submission: Kimberly D. DEPARTMENT OF ENERGY electronic format. It may be viewed and Bose, Secretary, Federal Energy downloaded from the FERC’s website Regulatory Commission, 888 First Street Federal Energy Regulatory (www.ferc.gov) on the Environmental NE, Room 1A, Washington, DC 20426. Commission Documents page (http://www.ferc.gov/ (4) In lieu of sending written or industries/gas/enviro/eis.asp). In electronic comments, the Commission Combined Notice of Filings #1 addition, the draft EIS may be accessed invites you to attend one of the public Take notice that the Commission by using the eLibrary link on the FERC’s comment meetings held in the Project received the following electric rate website. Click on the eLibrary link area to receive comments on the draft filings: (https://www.ferc.gov/docs-filing/ EIS. The dates, locations, and times of Docket Numbers: ER10–1819–021; elibrary.asp), then click on General these meetings, along with the BLM ER10–1818–019; ER10–1817–019; Search and enter the docket number in public hearings, will be provided in a ER10–1820–024. the ‘‘Docket Number’’ field, excluding supplemental notice. Applicants: Northern States Power the last three digits (i.e., CP17–178). Be Any person seeking to become a party Company, a Minnesota corporation. to the proceeding must file a motion to sure you have selected an appropriate Description: Notice of Change in date range. For assistance, please intervene pursuant to Rule 214 of the Status of Northern States Power contact FERC Online Support at Commission’s Rules of Practice and Company, a Minnesota corporation, et [email protected] or toll free Procedure (18 Code of Federal al. at (866) 208–3676, or for TTY, contact Regulations Part 385.214). Motions to Filed Date: 6/28/19. (202) 502–8659. intervene are more fully described at Accession Number: 20190628–5206. Any person wishing to comment on http://www.ferc.gov/resources/guides/ Comments Due: 5 p.m. ET 7/19/19. the draft EIS may do so. Your comments how-to/intervene.asp. Only intervenors Docket Numbers: ER10–3077–007; should focus on the draft EIS’s have the right to seek rehearing of the ER10–3071–007; ER10–3074–007; disclosure and discussion of potential Commission’s decision. The ER10–3075–007; ER10–3076–007; environmental effects, reasonable Commission grants affected landowners ER14–1342–004; ER14–608–004; ER15– alternatives, and measures to avoid or and others with environmental concerns 876–004; ER16–1644–004; ER17–1214– lessen environmental impacts. To intervenor status upon showing good 003; ER19–537–003. ensure consideration of your comments cause by stating that they have a clear on the proposal in the final EIS, it is Applicants: CalPeak Power LLC, and direct interest in this proceeding CalPeak Power—Border LLC, CalPeak important that the Commission receive that no other party can adequately your comments on or before 5:00 p.m. Power—Enterprise LLC, CalPeak represent. Simply filing environmental Power—Panoche LLC, CalPeak Power— Eastern Time on October 3, 2019. comments will not give you intervenor For your convenience, there are four Vaca Dixon LLC, Midway Peaking, LLC, status, but you do not need intervenor Malaga Power, LLC, MRP San Joaquin methods you can use to submit your status to have your comments comments to the Commission. In all Energy, LLC, MRP Generation Holdings, considered. Subsequent decisions, LLC, High Desert Power Project, LLC, instances, please reference the Project determination, permits, and docket number (CP17–178–000) with Coso Geothermal Power Holdings, LLC. authorization by the cooperating Description: Updated Market Power your submission. The Commission agencies are subject to the encourages electronic filing of Analysis for the Southwest Region of administrative procedures of each CalPeak Power LLC, et al. comments and has staff available to respective agency. assist you at (866) 208–3676 or Filed Date: 6/28/19. [email protected]. Please Questions? Accession Number: 20190628–5237. Comments Due: 5 p.m. ET 8/27/19. carefully follow these instructions so Additional information about the that your comments are properly Project is available from the Docket Numbers: ER14–2939–007; recorded. Commission’s Office of External Affairs, ER14–2465–010; ER14–2466–010; (1) You can file your comments at (866) 208–FERC, or on the FERC ER15–2728–009; ER15–632–009; ER15– electronically using the eComment website (www.ferc.gov) using the 634–009. feature on the Commission’s website eLibrary link. The eLibrary link also Applicants: Imperial Valley Solar (www.ferc.gov) under the link to provides access to the texts of formal Company (IVSC) 2,LLC, CID Solar, LLC, Documents and Filings. This is an easy documents issued by the Commission, RE Camelot LLC, RE Columbia Two method for submitting brief, text-only such as orders, notices, and LLC, Maricopa West Solar PV, LLC, comments on the Project. rulemakings. Cottonwood Solar LLC. (2) You can file your comments In addition, the Commission offers a Description: Triennial Market Power electronically by using the eFiling free service called eSubscription that Analysis for the Southwest Region of feature on the Commission’s website allows you to keep track of all formal the Dominion Companies. (www.ferc.gov) under the link to issuances and submittals in specific Filed Date: 6/28/19. Accession Number: 20190628–5234. Documents and Filings. With eFiling, dockets. This can reduce the amount of Comments Due: 5 p.m. ET 8/27/19. you can provide comments in a variety time you spend researching proceedings of formats by attaching them as a file by automatically providing you with Docket Numbers: ER16–1255–014; with your submission. New eFiling notification of these filings, document ER15–1579–015; ER15–1582–016; users must first create an account by summaries, and direct links to the ER15–1914–017; ER15–2679–013; clicking on ‘‘eRegister.’’ If you are filing documents. Go to www.ferc.gov/docs- ER15–2680–013; ER15–760–016; ER15– a comment on a particular project, filing/esubscription.asp. 762–017; ER16–1609–007; ER16–1738– please select ‘‘Comment on a Filing’’ as 011; ER16–1901–011; ER16–1955–011; the filing type. Dated: June 28, 2019. ER16–1956–011; ER16–1973–011; (3) You can file a paper copy of your Kimberly D. Bose, ER16–2201–010; ER16–2224–010; comments by mailing them to the Secretary. ER16–2541–010; ER16–2578–011; following address. Be sure to reference [FR Doc. 2019–14432 Filed 7–5–19; 8:45 am] ER16–468–011; ER16–474–012; ER16– the Project docket number (CP17–178– BILLING CODE 6717–01–P 890–012; ER17–1864–009; ER17–1871–

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009; ER17–1909–009; ER17–306–010; Comments Due: 5 p.m. ET 7/19/19. Identical Transmission Service Requests ER17–544–010; ER18–1667–004; ER18– Docket Numbers: ER19–2293–000. to be effective 8/28/2019. 2327–003; ER18–2492–005; ER19–846– Applicants: Southwest Power Pool, Filed Date: 6/28/19. 004; ER19–847–004. Inc. Accession Number: 20190628–5232. Applicants: Antelope Big Sky Ranch Description: § 205(d) Rate Filing: Comments Due: 5 p.m. ET 7/19/19. LLC, Antelope DSR 1, LLC, Antelope 2041R9 Kansas City Board of Public Docket Numbers: ER19–2300–000. DSR 2, LLC, Antelope DSR 3, LLC, Utilities PTP Agreement to be effective Applicants: Georgia Power Company. Antelope Expansion 2, LLC, Bayshore 9/1/2019. Description: § 205(d) Rate Filing: SR Solar B, LLC, Bayshore Solar A, LLC, Filed Date: 6/28/19. Arlington II Affected System Bayshore Solar C, LLC, Beacon Solar 1, Accession Number: 20190628–5201. Construction Agreement Filing to be LLC, Beacon Solar 3, LLC, Beacon Solar Comments Due: 5 p.m. ET 7/19/19. effective 5/28/2019. 4, LLC, Central Antelope Dry Ranch C Docket Numbers: ER19–2294–000. Filed Date: 6/28/19. LLC, Elevation Solar C LLC, FTS Master Applicants: Mesquite Power, LLC. Accession Number: 20190628–5233. Tenant 1, LLC, FTS Master Tenant 2, Description: Compliance filing: Comments Due: 5 p.m. ET 7/19/19. LLC, ID Solar 1, LLC, Latigo Wind Park, Updated Market Power Analysis for the Docket Numbers: ER19–2301–000. LLC, North Lancaster Ranch LLC, SW Region & New eTariff Baseline to be Applicants: PJM Interconnection, Pioneer Wind Park I, LLC, Riverhead effective 6/29/2019. L.L.C. Solar Farm, LLC, San Pablo Raceway, Filed Date: 6/28/19. Description: § 205(d) Rate Filing: LLC, Sandstone Solar LLC, Sierra Solar Accession Number: 20190628–5202. Revisions to the OA, Sch. 6, sec 1.5 re: Greenworks LLC, Solverde 1, LLC, Comments Due: 5 p.m. ET 8/27/19. Market Efficiency Project Reevaluation Summer Solar LLC, Western Antelope Docket Numbers: ER19–2295–000. to be effective 8/28/2019. Blue Sky Ranch A LLC, Western Applicants: Midcontinent Filed Date: 6/28/19. Antelope Blue Sky Ranch B LLC, Independent System Operator, Inc., Accession Number: 20190628–5236. Western Antelope Dry Ranch LLC, Northern States Power Company, a Comments Due: 5 p.m. ET 7/19/19. 65HK 8me LLC, 67RK 8me LLC, 87RL Minnesota corporation, Northern States Docket Numbers: ER19–2303–000. 8me LLC. Power Company, a Wisconsin Applicants: NSTAR Electric Description: Triennial Market Power corporation. Company. Update for the Northwest Region of Description: § 205(d) Rate Filing: Description: § 205(d) Rate Filing: Antelope Big Sky Ranch LLC, et. al. 2019–06–28_NSP Attachment O 30.9 Second Supplement to Stony Brook— Filed Date: 6/28/19. Ludlow Agreement to be effective 7/1/ Accession Number: 20190628–5271. East River Filing to be effective 7/1/ Comments Due: 5 p.m. ET 8/27/19. 2019. 2019. Filed Date: 6/28/19. Filed Date: 6/28/19. Docket Numbers: ER19–1166–000. Accession Number: 20190628–5213. Accession Number: 20190628–5242. Applicants: ISO New England Inc. Comments Due: 5 p.m. ET 7/19/19. Comments Due: 5 p.m. ET 7/19/19. Description: Response of ISO New England Inc. to June 6, 2019 Request for Docket Numbers: ER19–2296–000. Docket Numbers: ER19–2304–000. Additional Information Regarding Applicants: Pio Pico Energy Center, Applicants: Georgia Power Company. Results of FCA 13. LLC. Description: § 205(d) Rate Filing: SR Filed Date: 6/28/19. Description: Market-Based Triennial Terrell Affected System Construction Accession Number: 20190628–5239. Review Filing: Updated Market Power Agreement Filing to be effective 5/28/ Comments Due: 5 p.m. ET 7/19/19. Analysis for the SW Region & Revised 2019. MBR Tariff to be effective 6/29/2019. Filed Date: 6/28/19. Docket Numbers: ER19–2290–000. Filed Date: 6/28/19. Accession Number: 20190628–5243. Applicants: Arizona Public Service Accession Number: 20190628–5215. Comments Due: 5 p.m. ET 7/19/19. Company. Comments Due: 5 p.m. ET 8/27/19. Description: § 205(d) Rate Filing: Rate Docket Numbers: ER19–2305–000. Schedule No. 293 Dry Lakes Pseudo-Tie Docket Numbers: ER19–2297–000. Applicants: Valencia Power, LLC. Agreement to be effective 8/28/2019. Applicants: Sierra Pacific Power Description: Compliance filing: Filed Date: 6/28/19. Company. Updated Market Power Analysis for the Accession Number: 20190628–5198. Description: Tariff Cancellation: SW Region & New eTariff Baseline to be Comments Due: 5 p.m. ET 7/19/19. Cancellation of Rate Schedule No. 66 to effective 6/29/2019. Docket Numbers: ER19–2291–000. be effective 8/28/2019. Filed Date: 6/28/19. Applicants: PJM Interconnection, Filed Date: 6/28/19. Accession Number: 20190628–5246. L.L.C. Accession Number: 20190628–5228. Comments Due: 5 p.m. ET 8/27/19. Description: § 205(d) Rate Filing: Comments Due: 5 p.m. ET 7/19/19. Docket Numbers: ER19–2306–000. Amendment to WMPA, SA No. 5147; Docket Numbers: ER19–2298–000. Applicants: NorthWestern Queue No. AD1–144 (amend) to be Applicants: Sierra Pacific Power Corporation. effective 6/15/2018. Company. Description: § 205(d) Rate Filing: SA Filed Date: 6/28/19. Description: Tariff Cancellation: 877—Firm Point-to-Point TSA with Accession Number: 20190628–5199. Cancellation of Rate Schedule No. 71 to Energy Keepers to be effective 9/1/2019. Comments Due: 5 p.m. ET 7/19/19. be effective 8/28/2019. Filed Date: 6/28/19. Docket Numbers: ER19–2292–000. Filed Date: 6/28/19. Accession Number: 20190628–5261. Applicants: New England Power Pool Accession Number: 20190628–5230. Comments Due: 5 p.m. ET 7/19/19. Participants Committee. Comments Due: 5 p.m. ET 7/19/19. Docket Numbers: ER19–2307–000. Description: § 205(d) Rate Filing: Jul Docket Numbers: ER19–2299–000. Applicants: Macquarie Energy LLC. 2019 Membership Filing to be effective Applicants: Southwest Power Pool, Description: § 205(d) Rate Filing: 6/1/2019. Inc. Request for Cat. 1 Seller Status in the Filed Date: 6/28/19. Description: § 205(d) Rate Filing: NW Region & Revised MBR Tariff to be Accession Number: 20190628–5200. Revisions to Reduce Number of effective 6/29/2019.

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Filed Date: 6/28/19. Comments Due: 5 p.m. ET 7/19/19. on Transco’s existing customers. Accession Number: 20190628–5262. The filings are accessible in the Additionally, Transco states that the Comments Due: 5 p.m. ET 7/19/19. Commission’s eLibrary system by Supply Laterals have not provided Docket Numbers: ER19–2308–000. clicking on the links or querying the service to any customers during the Applicants: Macquarie Energy docket number. previous 12 months and are not covered Trading LLC. Any person desiring to intervene or under a firm contract. Transco estimates Description: § 205(d) Rate Filing: protest in any of the above proceedings the total cost of the abandonment to be Request for Cat. 1 Seller Status in the must file in accordance with Rules 211 approximately $2.4 million, all as more NW Region & Revised MBR Tariff to be and 214 of the Commission’s fully set forth in the application which effective 6/29/2019. Regulations (18 CFR 385.211 and is on file with the Commission and open Filed Date: 6/28/19. 385.214) on or before 5:00 p.m. Eastern to public inspection. The filing may also Accession Number: 20190628–5270. time on the specified comment date. be viewed on the web at http:// Comments Due: 5 p.m. ET 7/19/19. Protests may be considered, but www.ferc.gov using the ‘‘eLibrary’’ link. Docket Numbers: ER19–2309–000. intervention is necessary to become a Enter the docket number excluding the Applicants: Utah Red Hills Renewable party to the proceeding. last three digits in the docket number field to access the document. For Park, LLC. eFiling is encouraged. More detailed assistance, please contact FERC Online Description: § 205(d) Rate Filing: information relating to filing Support at FERCOnlineSupport@ Request for Cat. 1 Seller Status in the requirements, interventions, protests, ferc.gov or toll free at (866) 208–3676, or NW Region & Revised MBR Tariff to be service, and qualifying facilities filings TTY, contact (202) 502–8659. effective 6/29/2019. can be found at: http://www.ferc.gov/ docs-filing/efiling/filing-req.pdf. For Any questions concerning this Filed Date: 6/28/19. application may be directed to Charlotte Accession Number: 20190628–5272. other information, call (866) 208–3676 (toll free). For TTY, call (202) 502–8659. Hutson Director, Rates & Regulatory, Comments Due: 5 p.m. ET 7/19/19. Transcontinental Gas Pipe Line Docket Numbers: ER19–2310–000. Dated: July 1, 2019. Company, LLC, Post Office Box 1396, Applicants: Arizona Public Service Nathaniel J. Davis, Sr., Houston, Texas 77251–1396, by Company. Deputy Secretary. telephone at (713) 215–4060, or by Description: § 205(d) Rate Filing: [FR Doc. 2019–14425 Filed 7–5–19; 8:45 am] email at charlotte.a.hutson@ Service Agreement No. 373, E&P BILLING CODE 6717–01–P williams.com. Agreement to be effective 5/31/2019. Any person or the Commission’s staff Filed Date: 6/28/19. may, within 60 days after issuance of Accession Number: 20190628–5284. DEPARTMENT OF ENERGY the instant notice by the Commission, Comments Due: 5 p.m. ET 7/19/19. file pursuant to Rule 214 of the Docket Numbers: ER19–2311–000. Federal Energy Regulatory Commission’s Procedural Rules (18 CFR Applicants: Consolidated Edison Commission 385.214) a motion to intervene or notice Company of New York, Inc. [Docket No. CP19–481–000] of intervention and pursuant to section Description: § 205(d) Rate Filing: 157.205 of the regulations under the PASNY Tariff Standby Revisions 6– Notice of Request Under Blanket NGA (18 CFR 157.205), a protest to the 2019 to be effective 7/1/2019. Authorization; Transcontinental Gas request. If no protest is filed within the Filed Date: 7/1/19. Pipe Line Company, LLC time allowed therefore, the proposed Accession Number: 20190701–5005. activity shall be deemed to be Comments Due: 5 p.m. ET 7/22/19. Take notice that on June 21, 2019, authorized effective the day after the Transcontinental Gas Pipe Line Docket Numbers: ER19–2312–000. time allowed for filing a protest. If a Company, LLC (Transco), Post Office protest is filed and not withdrawn Applicants: ISO New England Inc. Box 1396, Houston, Texas 77251, filed Description: Filing of Permanent De- within 30 days after the allowed time in Docket No. CP19–481–000 a prior for filing a protest, the instant request List Bids and Retirement De-List Bids notice request pursuant to sections for 2023–24 Forward Capacity Auction shall be treated as an application for 157.205 and 157.216 of the authorization pursuant to section 7 of (FCA 14) of ISO New England, Inc. Commission’s regulations under the Filed Date: 6/28/19. the NGA. Natural Gas Act (NGA) to abandon, Pursuant to section 157.9 of the Accession Number: 20190628–5287. partially in place and partially by Commission’s rules (18 CFR 157.9), Comments Due: 5 p.m. ET 7/19/19. removal, supply lateral pipelines within 90 days of this Notice, the Docket Numbers: ER19–2313–000. located in offshore federal waters near Commission staff will either: Complete Applicants: Pacific Gas and Electric Louisiana. Specifically, Transco its environmental assessment (EA) and Company. proposes to abandon an approximately place it into the Commission’s public Description: Notice of Termination of 19.24-mile, 10-inch-diameter pipeline record (eLibrary) for this proceeding; or GSFA and GIA Service Agreement No. extending subsea from Ship Shoal Block issue a Notice of Schedule for 58 of Pacific Gas and Electric Company. 169 to Ship Shoal Block 87, Platform B, Environmental Review. If a Notice of Filed Date: 6/28/19. and an approximately 1.06-mile, 8-inch- Schedule for Environmental Review is Accession Number: 20190628–5292. diameter pipeline extending from Ship issued, it will indicate, among other Comments Due: 5 p.m. ET 7/19/19. Shoal Block 87, Platform B to Ship milestones, the anticipated date for the Docket Numbers: ER19–2314–000. Shoal Block 72 subsea tie-in (Supply Commission staff’s issuance of the EA Applicants: MidAmerican Central Laterals). for this proposal. The filing of the EA California Transco, LLC. Transco states that the abandonment in the Commission’s public record for Description: Application to Recover of the Supply Laterals will have no this proceeding or the issuance of a Abandoned Plant Costs of MidAmerican impact on the daily design capacity of, Notice of Schedule for Environmental Central California Transco, LLC. or operating conditions on, Transco’s Review will serve to notify federal and Filed Date: 6/28/19. pipeline system, nor will the state agencies of the timing for the Accession Number: 20190628–5293. abandonment have any adverse impact completion of all necessary reviews, and

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the subsequent need to complete all administered by the U.S. Forest Service Hydro Headquarters Office, 4000 E federal authorizations within 90 days of and approximately 48 acres of federal Bishop Creek Road, Bishop, CA 93514. the date of issuance of the Commission land administered by the U.S. Bureau of o. Register online at http:// staff’s EA. Land Management. www.ferc.gov/docs-filing/ g. Filed Pursuant to: 18 CFR part 5 of Persons who wish to comment only esubscription.asp to be notified via on the environmental review of this the Commission’s Regulations. h. Potential Applicant Contact: email of new filing and issuances project should submit an original and related to this or other pending projects. two copies of their comments to the Matthew Woodhall, Project Lead, Southern California Edison Company, For assistance, contact FERC Online Secretary of the Commission. Support. Environmental commenters will be 1515 Walnut Grove Avenue, Rosemead, placed on the Commission’s CA 91770. p. With this notice, we are soliciting environmental mailing list, and will be i. FERC Contact: Kelly Wolcott at comments on the PAD and notified of any meetings associated with (202) 502–6480 or email at: Commission’s staff Scoping Document 1 the Commission’s environmental review [email protected]. (SD1), as well as study requests. All process. Environmental commenters j. Cooperating agencies: Federal, state, comments on the PAD and SD1, and will not be required to serve copies of local, and tribal agencies with study requests should be sent to the filed documents on all other parties. jurisdiction and/or special expertise address above in paragraph h. In with respect to environmental issues However, the non-party commenters, addition, all comments on the PAD and that wish to cooperate in the will not receive copies of all documents SD1, study requests, requests for preparation of the environmental filed by other parties or issued by the cooperating agency status, and all document should follow the Commission and will not have the right communications to and from instructions for filing such requests to seek court review of the Commission staff related to the merits of described in item o below. Cooperating Commission’s final order. the potential application must be filed agencies should note the Commission’s The Commission strongly encourages with the Commission. policy that agencies that cooperate in electronic filings of comments, protests, the preparation of the environmental The Commission strongly encourages and interventions in lieu of paper using document cannot also intervene. See 94 electronic filing. Please file all the ‘‘eFiling’’ link at http:// FERC ¶ 61,076 (2001). documents using the Commission’s www.ferc.gov. Persons unable to file k. With this notice, we are initiating eFiling system at http://www.ferc.gov/ electronically should submit an original informal consultation with: (a) The U.S. docs-filing/efiling.asp. Commenters can and seven copies of the protest or Fish and Wildlife Service and/or NOAA submit brief comments up to 6,000 intervention to the Federal Energy Fisheries under section 7 of the characters, without prior registration, Regulatory Commission, 888 First Street Endangered Species Act and the joint using the eComment system at http:// NE, Washington, DC 20426. agency regulations thereunder at 50 www.ferc.gov/docs-filing/ Dated: June 27, 2019. CFR, Part 402 and (b) the State Historic ecomment.asp. You must include your Kimberly D. Bose, Preservation Officer, as required by name and contact information at the end Secretary. section 106, National Historic of your comments. For assistance, [FR Doc. 2019–14450 Filed 7–5–19; 8:45 am] Preservation Act, and the implementing please contact FERC Online Support at [email protected]. In lieu of BILLING CODE 6717–01–P regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2. electronic filing, you may send a paper l. With this notice, we are designating copy to: Secretary, Federal Energy DEPARTMENT OF ENERGY Southern California Edison, as the Regulatory Commission, 888 First Street Commission’s non-federal NE, Washington, DC 20426. The first Federal Energy Regulatory representatives for carrying out informal page of any filing should include docket Commission consultation, pursuant to section 7 of number P–1394–080. [Project No. 1394–080] the Endangered Species Act and section All filings with the Commission must 106 of the National Historic bear the appropriate heading: Southern California Edison; Notice of Preservation Act. ‘‘Comments on Pre-Application Intent To File License Application, m. Southern California Edison filed Document,’’ ‘‘Study Requests,’’ Filing of Pre-Application Document with the Commission a Pre-Application ‘‘Comments on Scoping Document 1,’’ (Pad), Commencement of Pre-Filing Document (PAD; including a proposed ‘‘Request for Cooperating Agency Process, and Scoping; Request for process plan and schedule), pursuant to Status,’’ or ‘‘Communications to and Comments on the Pad and Scoping 18 CFR 5.6 of the Commission’s from Commission Staff.’’ Any regulations. Document, and Identification of Issues individual or entity interested in n. A copy of the PAD is available for and Associated Study Requests submitting study requests, commenting review at the Commission in the Public a. Type of Filing: Notice of Intent to Reference Room or may be viewed on on the PAD or SD1, and any agency File License Application for a New the Commission’s website (http:// requesting cooperating status must do so License and Commencing Pre-filing www.ferc.gov), using the ‘‘eLibrary’’ by August 29, 2019. Process. link. Enter the docket number, q. Although our current intent is to b. Project No.: 1394–080. excluding the last three digits in the prepare an environmental assessment c. Date Filed: May 1, 2019. docket number field to access the (EA), there is the possibility that an d. Submitted By: Southern California document. For assistance, contact FERC Environmental Impact Statement (EIS) Edison. Online Support at will be required. Nevertheless, this e. Name of Project: Bishop Creek [email protected], (866) notice, associated scoping meeting, and Hydroelectric Project. 208–3676 (toll free), or (202) 502–8659 our scoping process will satisfy the f. Location: On Bishop Creek in Inyo (TTY). A copy is also available for NEPA scoping requirements, County, California. The project occupies inspection and reproduction (by irrespective of whether an EA or EIS is approximately 734 acres of federal land appointment only) at: Bishop Creek issued by the Commission.

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Scoping Meetings Meeting Objectives regarding the PJP Landfill Superfund Commission staff will hold two At the scoping meetings, staff will: (1) Site, Jersey City, New Jersey (‘‘Site’’). scoping meetings in the vicinity of the Initiate scoping of the issues; (2) review Pursuant to the proposed cost recovery project at the times and places noted and discuss existing conditions and settlement agreement, the Settling below. The daytime meeting will focus resource management objectives; (3) Parties will pay $143,088 to resolve the on resource agency, Indian tribes, and review and discuss existing information Settling Parties’ civil liability under non-governmental organization and identify preliminary information Section 107(a) of CERCLA for certain concerns, while the evening meeting is and study needs; (4) review and discuss past response costs. primarily for receiving input from the the process plan and schedule for pre- DATES: Comments must be submitted on public. We invite all interested filing activity that incorporates the time or before August 7, 2019. individuals, organizations, and agencies frames provided for in Part 5 of the ADDRESSES: The proposed settlement to attend one or both of the meetings, Commission’s regulations and, to the agreement is available for public and to assist staff in identifying extent possible, maximizes coordination inspection at EPA’s Region 2 offices. To particular study needs, as well as the of federal, state, and tribal permitting request a copy of the proposed scope of environmental issues to be and certification processes; and (5) settlement agreement, please contact the addressed in the environmental discuss the appropriateness of any EPA employee identified in the FOR document. The times and locations of federal or state agency or Indian tribe FURTHER INFORMATION CONTACT section these meetings are as follows: acting as a cooperating agency for below. Evening Scoping Meeting development of an environmental FOR FURTHER INFORMATION CONTACT: document. Leena Raut, Assistant Regional Counsel, Date and Time: Tuesday, July 30, Meeting participants should come U.S. Environmental Protection Agency, 2019 at 7:00 p.m. prepared to discuss their issues and/or Region 2, Office of Regional Counsel, Location: City of Bishop Council concerns. Please review the PAD in 290 Broadway—17th Floor, New York, Chambers, 301 West Line Street, Bishop, preparation for the scoping meetings. New York 10007–1866. Email: California 93514. Directions on how to obtain a copy of [email protected]. Telephone: (212) Phone Number: (760) 873–5863. the PAD and SD1 are included in item 637–3122. Daytime Scoping Meeting n. of this document. SUPPLEMENTARY INFORMATION: For 30 Date and Time: Wednesday, July 31, Meeting Procedures days following the date of publication of this notice, EPA will receive written 2019 at 9:00 a.m. The meetings will be recorded by a Location: City of Bishop Council comments concerning the proposed cost stenographer and will be placed in the Chambers, 301 West Line Street, Bishop, recovery settlement agreement. public records of the project. California 93514. Comments to the proposed settlement Phone Number: (760) 873–5863. Dated: June 27, 2019. agreement should reference the PJP SD1, which outlines the subject areas Kimberly D. Bose, Landfill Superfund Site, U.S. EPA Index to be addressed in the environmental Secretary. No. CERCLA–02–2018–2017. EPA will document, was mailed to the [FR Doc. 2019–14453 Filed 7–5–19; 8:45 am] consider all comments received during individuals and entities on the BILLING CODE 6717–01–P the 30-day public comment period and Commission’s mailing list. Copies of may modify or withdraw its consent to SD1 will be available at the scoping the settlement agreement if comments meetings, or may be viewed on the web ENVIRONMENTAL PROTECTION received disclose facts or considerations at http://www.ferc.gov, using the AGENCY that indicate that the proposed ‘‘eLibrary’’ link. Follow the directions settlement agreement is inappropriate, for accessing information in paragraph [FRL–9996–29–Region 2] improper, or inadequate. EPA’s n. Based on all oral and written Proposed CERCLA Cost Recovery response to comments will be available comments, a Scoping Document 2 (SD2) Settlement Regarding the PJP Landfill for public inspection at EPA’s Region 2 may be issued. SD2 may include a Superfund Site, Hudson County, New offices located at 290 Broadway, New revised process plan and schedule, as Jersey York, NY 10007–1866. well as a list of issues, identified Dated: June 14, 2019. through the scoping process. AGENCY: Environmental Protection Pat Evangelista, Agency (EPA). Environmental Site Review Acting Director, Superfund and Emergency ACTION: Notice; request for public Management Division, Region 2. The potential applicant and comment. Commission staff will conduct an [FR Doc. 2019–14467 Filed 7–5–19; 8:45 am] Environmental Site Review of the SUMMARY: In accordance with the BILLING CODE 6560–50–P project on Tuesday, July 30, 2019, Comprehensive Environmental starting at 8:30 a.m. All participants Response, Compensation, and Liability should meet at the Eastern Sierra Act of 1980, as amended (‘‘CERCLA’’), ENVIRONMENTAL PROTECTION College Center, located at: 4090 W. Line notice is hereby given by the U.S. AGENCY Street Bishop, CA 93514–7306. All Environmental Protection Agency [FRL–9995–16–0MS] participants are responsible for their (‘‘EPA’’), Region 2, of a proposed cost own transportation. We anticipate the recovery settlement agreement pursuant Privacy Act of 1974; System of environmental site review will take all to CERCLA between EPA and CWM Records day, so participants are also advised to Chemical Services, LLC; Edlin, Ltd; AGENCY: Office of Mission Support, bring a bag lunch. Anyone with Edwin Siegel; New Jersey Department of Environmental Protection Agency questions about the site visit should Transportation; Roman Catholic (EPA). contact Mr. Matthew Woodhall with Archdiocese of Newark; Tooley ACTION: Notice of a New System of Southern California Edison at (626) Enterprises; and Waste Management of Records. 302–9596. New Jersey, Inc. (‘‘Settling Parties’’)

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SUMMARY: The U.S. Environmental unless you provide it in the body of and in order for the Agency to comply Protection Agency’s (EPA) Office of the your comment. Each agency determines with Executive Order 13164 and EEOC Administrator is giving notice that it submission requirements within their Management Directive 715 (MD 715). proposes to publish a system of records own internal processes and standards. Requestors of reasonable pursuant to the provisions of the EPA has no requirement of personal accommodations provide information Privacy Act of 1974. The Reasonable information. If you send an email that includes PII to the National Accommodation Management System comment directly to the EPA without Reasonable Accommodation (RAMS) will support the Agency’s going through www.regulations.gov your Coordinator (NRAC) or Assistant Reasonable Accommodation program as email address will be automatically National Reasonable Accommodation required by the Equal Employment captured and included as part of the Coordinator (ANRAC) in EPA’s Office of Opportunity Commission (EEOC) and in comment that is placed in the public Civil Rights (OCR), a Local Reasonable compliance with the requirements of docket and made available on the Accommodation Coordinator (LORAC), Executive Order 13164. The EEOC internet. If you submit an electronic or the requestor’s manager so that a requires federal agencies to process comment, the EPA recommends that determination on disability status can requests by employees for reasonable you include your name and other be made. PII contained in RAMS will accommodations that enable a person contact information in the body of your include name, date of birth, medical with a disability to apply for a job, comment. If the EPA cannot read your documentation, and general categories perform job duties, and/or enjoy the comment due to technical difficulties of type of accommodation (telework, benefits and privileges of employment. and cannot contact you for clarification, workplace modification, flexible The documentation required to process the EPA may not be able to consider schedule, assistive technology, theses requests will contain personally your comment. Electronic files should interpreter services). identifiable information (PII). avoid the use of special characters, any The NRAC, ANRAC, LORAC will DATES: Persons wishing to comment on form of encryption, and be free of any have access to the records in RAMS, this system of records notice must do so defects or viruses. For additional which can only be logged onto using the by August 7, 2019. If no comments are information about the EPA’s public employee PIV card and passwords. The received by the end of the comment docket visit the EPA Docket Center RAMS contractors provide period, this system of records will homepage at http://www.epa.gov/ infrastructure services including become effective on August 7, 2019. epahome/dockets.htm. supporting hardware and software, Docket: All documents in the docket internet gateway communications ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– are listed in the www.regulations.gov security, system administration, and OEI–2017–0536 by one of the following index. Although listed in the index, system and application security services methods: some information is not publicly but do not collect, maintain or access Regulations.gov: www.regulations.gov. available, e.g., CBI or other information the records in RAMS. The physical Follow the online instructions for for which disclosure is restricted by environment includes access restricted submitting comments. statute. Certain other material, such as by on-site security and employee badge Email: [email protected]. copyrighted material, will be publicly requirements for RAMS contractors. available only in hard copy. Publicly Fax: 202–566–1752. SYSTEM NAME AND NUMBER: Mail: OEI Docket, Environmental available docket materials are available either electronically in Reasonable Accommodation Protection Agency, Mailcode: 2822T, Management System (RAMS) EPA–73. 1200 Pennsylvania Ave. NW, www.regulations.gov or in hard copy at Washington, DC 20460. the OEI Docket, EPA/DC, WJC West SECURITY CLASSIFICATION: Hand Delivery: OEI Docket, EPA/DC, Building, Room 3334, 1301 Constitution Unclassified. WJC West Building, Room 3334, 1301 Ave. NW, Washington, DC. The Public SYSTEM LOCATION: Constitution Ave. NW, Washington, DC. Reading Room is open from 8:30 a.m. to Such deliveries are only accepted 4:30 p.m., Monday through Friday Office of the Administrator, Office of during the Docket’s normal hours of excluding legal holidays. The telephone Civil Rights, US EPA, 1200 operation, and special arrangements number for the Public Reading Room is Pennsylvania Avenue NW, Washington, should be made for deliveries of boxed (202) 566–1744, and the telephone DC 20004. number for the OEI Docket is (202) 566– information. SYSTEM MANAGER(S): 1752. Instructions: Direct your comments to Amanda Sweda, (202) 566–0678 or FOR FURTHER INFORMATION CONTACT: Docket ID No. EPA–HQ–OEI–2017– [email protected], National Kristin Tropp, (202) 559–0006 or 0536. The EPA’s policy is that all Reasonable Accommodation [email protected] and/or Amanda comments received will be included in Coordinator, Office of Civil Rights, 1200 Sweda, (202) 566–0678 or the public docket without change and Pennsylvania Avenue NW, Washington, [email protected]. may be made available online at DC 20004. www.regulations.gov, including any SUPPLEMENTARY INFORMATION: The U.S. Kristin Tropp, (202) 559–0006 or personal information provided, unless Environmental Protection Agency (EPA) [email protected], Assistant the comment includes information proposes to publish a Privacy Act National Reasonable Accommodation claimed to be Confidential Business system of records for the Reasonable Coordinator, Office of Civil Rights, 1200 Information (CBI) or other information Accommodation Management System Pennsylvania Avenue NW, Washington, for which disclosure is restricted by (RAMS). The RAMS is an information DC 20004. statute. Do not submit information that management and reporting system for you consider to be CBI or otherwise internal use by the National Reasonable AUTHORITY FOR MAINTENANCE OF THE SYSTEM: protected through www.regulations.gov. Accommodation Program. The The Rehabilitation Act of 1973; 501 The www.regulations.gov website is an information collected in the RAMS is and 504; the Americans with ‘‘anonymous access’’ system for EPA, required by the Equal Employment Disabilities Act Amendments Act of which means the EPA will not know Opportunity Commission (EEOC) under 2008 (Pub. L. 110–325 (ADAAA); your identity or contact information Section 501 of the Rehabilitation Act Executive Order 13164 (July 28, 2000);

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and Executive Order 13548 (July 26, EPA events or activities open to system of records may be disclosed for 2010). employees, applicants, and/or the the following EPA General routine uses public. (73 FR 2245): PURPOSE(S) OF THE SYSTEM: A. Information may be disclosed to The primary purpose of the RAMS is CATEGORIES OF INDIVIDUALS COVERED BY THE the appropriate Federal, State, local, SYSTEM: to allow EPA to collect and maintain tribal, or foreign agency responsible for reasonable accommodation records on All employees and applicants for investigating, prosecuting, enforcing, or applicants for employment as well as employment at the United States implementing a statute, rule, regulation, current employees who request or Environmental Protection Agency who or order, if the information is relevant receive reasonable accommodation(s) request a reasonable accommodation. to a violation or potential violation of from EPA under the Rehabilitation Act CATEGORIES OF RECORDS IN THE SYSTEM: civil or criminal law or regulation of 1973 and the ADAAA. These records within the jurisdiction of the receiving document when and what was asked for Email correspondence, determination of disability letter(s), medical entity. as a reasonable accommodation and B. Information may be disclosed to what was approved or denied as a information (if provided), Appendix A Applicant Confirmation of Request for any source from which additional reasonable accommodation. The records information is requested (to the extent RA; Appendix B Employee may include required medical necessary to identify the individual, Confirmation of Request for RA (AFGE); documentation and a determination of inform the source of the purpose of the Appendix B Confirmation of Request for disability letter stating whether the request, and to identify the type of Reasonable Accommodation Form (Non- individual is a person with a disability. information requested,) when necessary AFGE); Appendix C Denial of The system will also be used to track to obtain information relevant to an Reasonable Accommodation Request processing of requests for reasonable agency decision concerning retention of Form (Non-AFGE); Appendix D RA accommodations only to the extent an employee or other personnel action Information Reporting (AFGE); necessary to ensure EPA-wide (other than hiring,) retention of a Appendix D Reasonable compliance with applicable laws and security clearance, the letting of a Accommodation Information Reporting regulations while preserving and contract, or the issuance or retention of Form (Non-AFGE); Appendix E Limited maintaining the confidentiality and a grant, or other benefit. privacy of all information provided in Medical Privacy Release Form (AFGE); C. Disclosure may be made to a support of accommodation request. Appendix F Final RA Decision (AFGE); Federal, State, local, foreign, or tribal or The Rehabilitation Act and the Authorization to Receive and Review other public authority of the fact that ADAAA require federal agencies to Documentation for Reasonable this system of records contains provide reasonable accommodations to Accommodation (Non-AFGE). Specific information relevant to the retention of qualified applicants for employment data elements are: Employee or an employee, the retention of a security and employees with disabilities if applicant name, mail code address, clearance, the letting of a contract, or known or requested unless the work phone, work email address, office the issuance or retention of a license, accommodation would impose an name, occupational series, pay grade, grant, or other benefit. The other agency undue hardship on the agency. The bargaining unit, accommodation or licensing organization may then make Rehabilitation Act requires federal requested, request date, determination a request supported by the written agencies to provide reasonable date, determination method, consent of the individual for the entire accommodations or modifications to explanation of method, status, decision- record if it so chooses. No disclosure allow participation by persons with making official name and title, disability will be made unless the information has disabilities in agency programs or status, medical information request been determined to be sufficiently activities. Reasonable Accommodations tracking data, medical information reliable to support a referral to another are modifications or adjustments that recipient name, medical information office within the agency or to another will allow applicants and employees to release form and related tracking data, Federal agency for criminal, civil, apply for a job, perform job duties, and/ data concerning communication of administrative, personnel, or regulatory or enjoy the benefits and privileges of decisions, accommodation offer action. employment. Reasonable notification and related comments, the F. Information may be disclosed to the accommodations may include: (1) date that the reasonable accommodation Department of Justice, or in a Making existing facilities readily request was made, and the status of the proceeding before a court, adjudicative accessible to and usable by individual request. body, or other administrative body with disabilities; (2) job restructuring, RECORD SOURCE CATEGORIES: before which the Agency is authorized modification of work schedules or place Information is obtained from to appear, when: of work, extended leave, telecommuting, 1. The Agency, or any component or reassignment to a vacant position; (3) employees and applicants for employment who requested reasonable thereof; acquisition or modification of 2. Any employee of the Agency in his equipment or devices, including accommodation(s) under the Rehabilitation Act of 1973 and the or her official capacity; computer software and hardware, 3. Any employee of the Agency in his ADAAA from the EPA. appropriate adjustments or or her individual capacity where the modifications of examinations, training ROUTINE USES OF RECORDS MAINTAINED IN THE Department of Justice or the Agency materials or policies, the provision of SYSTEM, INCLUDING CATEGORIES OF USERS AND have agreed to represent the employee; qualified readers and/or interpreters, PURPOSES OF SUCH USES: or personal assistants that enable the EPA General routine uses A, B, C, F, 4. The United States, if the Agency individual to perform his or her job I, J, K apply to this system. (73 FR 2245) determines that litigation is likely to duties and enjoy the benefits and The information collected in the RAMS affect the Agency or any of its privileges of employment, and other will be used in a manner that is components, is a party to litigation or similar accommodations; and/or (4) compatible and consistent with the has an interest in such litigation, and providing interpreters, large print purposes for which the information has the use of such records by the programs, or other accommodations for been collected. Information from this Department of Justice or the Agency is

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deemed by the Agency to be relevant remedying the risk of harm to assign each user (the LORACs) a role and necessary to the litigation provided, individuals, the recipient agency or which determines what type of data however, that in each case it has been entity (including its information they can access and then assigns them determined that the disclosure is systems, programs, and operations), the areas of the Agency they can see that compatible with the purpose for which Federal Government, or national data for. The Master Administrators the records were collected. security, resulting from a suspected or limit individual access to only the I. Information from this system of confirmed breach. information for which the individual records may be disclosed to an LORAC has a need to know. POLICIES AND PRACTICES FOR STORAGE OF authorized appeal grievance examiner, Æ The RAMS contractor is a formal complaints examiner, equal RECORDS: The paper records are maintained in contractor to EPA that supports the employment opportunity investigator, RAMS information management and arbitrator or other person properly locked file cabinets inside of a locked office located in the Office of Civil reporting system. The contractor is engaged in investigation or settlement of subject to the Federal Acquisition an administrative grievance, complaint, Rights, 1200 Pennsylvania Ave. NW, Washington, DC 20004. RAMS is Regulations (FAR) Privacy Act clauses claim, or appeal filed by an employee, in its contract with EPA. but only to the extent that the currently hosted at a FedRAMP certified Æ information is relevant and necessary to Cloud Service Provider location at the The RAMS contractor provides a the proceeding. Agencies that may contractor’s facility in Ashburn, VA fully managed support infrastructure obtain information under this routine 20147. Users access the RAMS system service including supporting hardware use include, but are not limited to, the via the internet. The files stored in and software, internet gateway Office of Personnel Management, Office RAMS are accessed by the authorized communications security, system of Special Counsel, Merit Systems users accessing RAMS content hosted administration, and system and Protection Board, Federal Labor on a secure external server and website application security services. The Relations Authority, Equal Employment from their PC client Web browsers. RAMS contractor does not access the Opportunity Commission, and Office of actual files collected and maintained by POLICIES AND PRACTICES FOR RETRIEVAL OF the NRAC, ANRAC, or LORACs. The Government Ethics. RECORDS: J. Information from this system of physical environment includes access records may be disclosed to the Office These records are retrieved by the restricted by on-site security and of Personnel Management pursuant to individual’s name, or a case number employee badge requirements. which is assigned by the system when that agency’s responsibility for Æ The system safeguards the data the request is first entered into RAMS, evaluation and oversight of Federal from access by those not authorized to and office/region. personnel management. access it, limiting its access to only K. Information from this system of POLICIES AND PRACTICES FOR RETENTION AND employees who have a business need to records may be disclosed in connection DISPOSAL OF RECORDS: access it and perform the duties of their with litigation or settlement discussions Records stored in this system are assigned jobs. The system links to no regarding claims by or against the subject to EPA records schedule number other system and the data is not shared Agency, including public filing with a (EPA 0068), Reasonable accommodation externally. court, to the extent that disclosure of the Request Records. A records schedule Æ All physical reasonable information is relevant and necessary to provides mandatory instructions on accommodation files are kept the litigation or discussions and except how long to keep records (retention) and confidential and maintained in the where court orders are otherwise when they can be disposed. Reasonable Office of Civil Rights, in secure, locked required under section (b)(11) of the accommodation records are retained cabinets. Only the NRAC and ANRAC Privacy Act of 1974, 5 U.S.C. until three years after an employee have access to these files. Employees/ 552a(b)(11). separates from EPA or three years after manager who obtain or receive such Records may also be disclosed to: an applicant made the request if they Appropriate agencies, entities, and information (medical information, are not hired. persons when (1) the Agency suspects determination of disability letters with or has confirmed that there has been a ADMINISTRATIVE, TECHNICAL, AND PHYSICAL functional limitations described) are breach of the system of records, (2) the SAFEGUARDS: strictly bound by confidentiality Agency has determined that as a result Computer-stored information is requirements. Whenever information on of the suspected or confirmed breach protected in accordance with the an employee with a reasonable there is a risk of harm to individuals, Agency’s Chief Information Officer accommodation is disclosed, the the Agency (including its information (CIO) 2150.3 Environmental Protection individual disclosing the information systems, programs, and operations), the Agency Information Security Policy and must inform the recipients of their Federal Government, or national procedures. continuing confidentiality obligations. security; and (3) the disclosure made to Æ Access to RAMS is limited to RECORD ACCESS PROCEDURES: such agencies, entities, and persons is authorized users only. Authorized users reasonably necessary to assist in include the NRAC, ANRAC, and Individuals seeking access to connection with the Agency’s efforts to LORACs. LORACs have limited access information in this system of records respond to the suspected or confirmed to data that is associated with their about themselves are required to breach or to prevent, minimize, or respective region or office. provide adequate identification (e.g., remedy such harm. Æ RAMS master administrators are driver’s license, military identification Another Federal agency or Federal the NRAC and ANRAC and control user card, employee badge or identification entity, when the Agency determines that access to system functionality and data card). Additional identity verification information from this system of records by assigning system roles and procedures may be required, as is reasonably necessary to assist the permissions. A ‘‘permission’’ is a rule warranted. Requests must meet the recipient agency or entity in (1) that regulates which users have access requirements of EPA regulations that responding to a suspected or confirmed to what function or data and in what implement the Privacy Act of 1974, at breach or (2) preventing, minimizing, or manner. The Master Administrators 40 CFR part 16.

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CONTESTING RECORD PROCEDURES: subject to the PRA that does not display it might ‘‘further reduce the information Requests for correction or amendment a valid OMB control number. collection burden for small business must identify the record to be changed DATES: Written comments should be concerns with fewer than 25 and the corrective action sought. submitted on or before August 7, 2019. employees.’’ Complete EPA Privacy Act procedures If you anticipate that you will be OMB Control Number: 3060–0289. are described in EPA’s Privacy Act submitting comments but find it Title: Section 76.76.601, Performance regulations at 40 CFR part 16. difficult to do so with the period of time Tests; Section 76.1704, Proof of allowed by this notice, you should Performance Test Data; 76.1717, NOTIFICATION PROCEDURE: advise the contacts listed below as soon Compliance with Technical Standards. Any individual who wants to know as possible. Form Number: N/A. whether this system of records contains ADDRESSES: Direct all PRA comments to Type of Review: Revision of a a record about him or her, who wants Nicholas A. Fraser, OMB, via email currently approved collection. access to his or her record, or who [email protected]; and Respondents: Business or other for- wants to contest the contents of a to Cathy Williams, FCC, via email PRA@ profit entities; State, local or Tribal record, should make a written request to fcc.gov and to [email protected]. Government. Number of Respondents and the EPA National Privacy Program Attn: Include in the comments the OMB Responses: 1,455 respondents; 1,505 Agency Privacy Officer, MC 2831T, control number as shown in the responses. 1200 Pennsylvania Ave. NW, SUPPLEMENTARY INFORMATION below. Washington, DC 20460. Estimated Time per Response: 1–70 FOR FURTHER INFORMATION CONTACT: For hours. EXEMPTIONS PROMULGATED FOR THE SYSTEM: additional information or copies of the Frequency of Response: information collection, contact Cathy None. Recordkeeping requirement, Semi- Williams at (202) 418–2918. To view a annual and Triennial reporting HISTORY: copy of this information collection requirements; Third party disclosure None. request (ICR) submitted to OMB: (1) Go requirement. to the webpage http://www.reginfo.gov/ Dated: June 5, 2019. Total Annual Burden: 101,900 hours. public/do/PRAMain, (2) look for the Total Annual Cost: None. Vaughn Noga, section of the web page called Obligation To Respond: Required to Senior Agency Official for Privacy. ‘‘Currently Under Review,’’ (3) click on obtain or retain benefits. The statutory [FR Doc. 2019–14469 Filed 7–5–19; 8:45 am] the downward-pointing arrow in the authority for this collection of BILLING CODE 6560–50–P ‘‘Select Agency’’ box below the information is contained in Sections 4(i) ‘‘Currently Under Review’’ heading, (4) and 624(e) of the Communications Act select ‘‘Federal Communications of 1934, as amended. FEDERAL COMMUNICATIONS Commission’’ from the list of agencies Nature and Extent of Confidentiality: COMMISSION presented in the ‘‘Select Agency’’ box, There is no need for confidentiality with (5) click the ‘‘Submit’’ button to the this collection of information. [OMB 3060–0289 and OMB 3060–1215] right of the ‘‘Select Agency’’ box, (6) Privacy Impact Assessment: No when the list of FCC ICRs currently Information Collections Being impact(s). under review appears, look for the Title Needs and Uses: The Commission Submitted for Review and Approval to of this ICR and then click on the ICR Office of Management and Budget adopted a Report and Order on April 12, Reference Number. A copy of the FCC 2019, In the Matter of Channel AGENCY: Federal Communications submission to OMB will be displayed. Requirements, Sections 76.1705 and Commission. SUPPLEMENTARY INFORMATION: As part of 76.1700(a)(4), Modernization of Media ACTION: Notice and request for its continuing effort to reduce Regulation Initiative, MB Docket No. comments. paperwork burdens, as required by the 18–92, MB Docket No. 17–105, FCC 19– Paperwork Reduction Act (PRA) of 1995 33. In this Report and Order, the SUMMARY: As part of its continuing effort (44 U.S.C. 3501–3520), the FCC invited information collection requirement to reduce paperwork burdens, as the general public and other Federal contained in 47 CFR 76.105 was required by the Paperwork Reduction Agencies to take this opportunity to eliminated. The Commission felt that it Act (PRA) of 1995, the Federal comment on the following information was an unnecessary requirement which Communications Commission (FCC or collection. Comments are requested pertains to cable operators’ channel the Commission) invites the general concerning: (a) Whether the proposed lineups. Section 76.1705, which public and other Federal Agencies to collection of information is necessary requires cable operators to maintain at take this opportunity to comment on the for the proper performance of the their local office a current listing of the following information collection. functions of the Commission, including cable television channels that each cable Pursuant to the Small Business whether the information shall have system delivers to its subscribers. This Paperwork Relief Act of 2002, the FCC practical utility; (b) the accuracy of the requirement is unnecessary as channel seeks specific comment on how it might Commission’s burden estimates; (c) lineups are readily available to ‘‘further reduce the information ways to enhance the quality, utility, and consumers through a variety of other collection burden for small business clarity of the information collected; and means. In FCC 19–33, the Commission concerns with fewer than 25 (d) ways to minimize the burden of the continue our efforts to modernize our employees.’’ collection of information on the regulations and reduce unnecessary The Commission may not conduct or respondents, including the use of requirements that can impede sponsor a collection of information automated collection techniques or competition and innovation in the unless it displays a currently valid other forms of information technology. media marketplace. Office of Management and Budget Pursuant to the Small Business The information collection (OMB) control number. No person shall Paperwork Relief Act of 2002, Public requirements approved under this be subject to any penalty for failing to Law 107–198, see 44 U.S.C. 3506(c)(4), collection remain the same and are as comply with a collection of information the FCC seeks specific comment on how follows:

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47 CFR 76.601(b) requires the distribution system upper frequency Respondents: Business or other for- operator of each cable television system limit of 101 to 216 MHz; 6 channels for profit, not-for-profit institutions, and shall conduct complete performance cable television systems with a cable state, local and tribal government. tests of that system at least twice each distribution system upper frequency Number of Respondents: 1,230 calendar year (at intervals not to exceed limit of 217–300 MHz; 7 channels for respondents; 1,230 responses. seven months), unless otherwise noted cable television systems with a cable below. The performance tests shall be distribution upper frequency limit to Estimated Time per Response: .5–10 directed at determining the extent to 300 to 400 MHz, etc.). The channels hours. which the system complies with all the selected for testing must be Frequency of Response: On occasion technical standards set forth in representative of all the channels within reporting requirement; third party § 76.605(a) and shall be as follows: the cable television system. disclosure requirement; upon (1) For cable television systems with (3) The operator of each cable commencement of service, or within 3 1,000 or more subscribers but with television system shall conduct semi- years of effective date of rules; and at 12,500 or fewer subscribers, proof-of- annual proof-of-performance tests of end of license term, or 2024 for performance tests conducted pursuant that system, to determine the extent to incumbent licensees. to this section shall include which the system complies with the measurements taken at six (6) widely technical standards set forth in Obligation to Respond: Statutory separated points. However, within each § 76.605(a)(4) as follows. The visual authority for this collection are cable system, one additional test point signal level on each channel shall be contained in sections 1, 2, 3, 4, 5, 7, 10, shall be added for every additional measured and recorded, along with the 201, 225, 227, 301, 302, 302a, 303, 304, 12,500 subscribers or fraction thereof date and time of the measurement, once 307, 309, 310, 316, 319, 332, and 336 of (e.g., 7 test points if 12,501 to 25,000 every six hours (at intervals of not less the Communications Act of 1934, 47 subscribers; 8 test points if 25,001 to than five hours or no more than seven U.S.C. 151, 152, 153, 154, 155, 157, 160, 37,500 subscribers, etc.). In addition, for hours after the previous measurement), 201, 225, 227, 301, 302, 302a, 303, 304, technically integrated portions of cable to include the warmest and the coldest 307, 309, 310, 316, 319, 332, 336, systems that are not mechanically times, during a 24-hour period in Section 706 of the Telecommunications continuous (i.e., employing microwave January or February and in July or Act of 1996, as amended, 47 U.S.C. connections), at least one test point will August. 1302. be required for each portion of the cable (4) The operator of each cable Total Annual Burden: 735 hours. system served by a technically television system shall conduct triennial integrated microwave hub. The proof-of- proof-of-performance tests of its system Total Annual Cost: $540,000. performance test points chosen shall be to determine the extent to which the Privacy Act Impact Assessment: No balanced to represent all geographic system complies with the technical impact(s). areas served by the cable system. At standards set forth in § 76.605(a)(11). least one-third of the test points shall be Nature and Extent of Confidentiality: Note 1 to 47 CFR 76.601 states prior representative of subscriber terminals There is no need for confidentiality with to additional testing pursuant to Section most distant from the system input and this collection of information. 76.601(c), the local franchising authority from each microwave receiver (if shall notify the cable operator, who will Needs and Uses: The Commission microwave transmissions are then be allowed thirty days to come into adopted the Use of Spectrum Bands employed), in terms of cable length. The compliance with any perceived signal Above 24 GHz for Mobile Radio services measurements may be taken at in a Fifth Report and Order (‘‘Fifth convenient monitoring points in the quality problems which need to be R&O’’), GN Docket No. 14–177, FCC 19– cable network: Provided, that data shall corrected. 30, on April 15, 2019. In the Fifth R&O, be included to relate the measured 47 CFR 76.1704 requires that proof of performance of the system as would be performance test required by 47 CFR the Commission amended Section viewed from a nearby subscriber 76.601 shall be maintained on file at the 25.136 by revising the section heading terminal. An identification of the operator’s local business office for at and revising paragraphs (e), (f), and (g) instruments, including the makes, least five years. The test data shall be and adding paragraphs (e)(1), (2), (3), model numbers, and the most recent made available for inspection by the and (4)(i), (ii), (iii), and (iv). The date of calibration, a description of the Commission or the local franchiser, Commission added the 50 GHz band procedures utilized, and a statement of upon request. If a signal leakage log is (50.4–51.4 GHz) to the bands that are the qualifications of the person being used to meet proof of performance subject to the framework for sharing performing the tests shall also be test recordkeeping requirement in between the Upper Microwave Flexible included. accordance with Section 76.601, such a Use Service (UMFUS) and the Fixed- (2) Proof-of-performance tests to log must be retained for the period Satellite Service (FSS) established in determine the extent to which a cable specified in 47 CFR 76.601(d). that rule. In turn, since the rules now 47 CFR 76.1717 states that an operator television system complies with the apply in additional bands, the number shall be prepared to show, on request by standards set forth in § 76.605(a)(3), (4), of respondents, the annual number of an authorized representative of the and (5) shall be made on each of the responses, annual burden hours and Commission or the local franchising NTSC or similar video channels of that annual costs will increase for this system. Unless otherwise as noted, authority, that the system does, in fact, collection. In addition, the Commission proof-of-performance tests for all other comply with the technical standards re-orders the paragraphs in § 25.136. standards in § 76.605(a) shall be made rules in part 76, subpart K. on a minimum of four (4) channels plus OMB Control Number: 3060–1215. Federal Communications Commission. one additional channel for every 100 Title: Use of Spectrum Bands Above Marlene Dortch, MHz, or fraction thereof, of cable 24 GHz for Mobile Radio Services. Secretary, Office of the Secretary. Form Number: N/A. distribution system upper frequency [FR Doc. 2019–14443 Filed 7–5–19; 8:45 am] limit (e.g., 5 channels for cable Type of Review: Revision of an television systems with a cable existing collection. BILLING CODE 6712–01–P

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FEDERAL ELECTION COMMISSION persons may express their views in including suggestions for reducing this writing on the standards enumerated in burden to GSA by any of the following Sunshine Act Meeting the BHC Act (12 U.S.C. 1842(c)). If the methods: proposal also involves the acquisition of • Regulations.gov: http:// TIME AND DATE: Thursday, July 11, 2019 a nonbanking company, the review also www.regulations.gov. Submit comments At 10 a.m. includes whether the acquisition of the via the Federal eRulemaking portal by PLACE: 1050 First Street NE, nonbanking company complies with the inputting ‘‘Information Collection 3090– Washington, DC (12th Floor) standards in section 4 of the BHC Act 0302, Modifications,’’ under the heading STATUS: This meeting will be open to the (12 U.S.C. 1843). Unless otherwise ‘‘Enter Keyword or ID’’ and selecting public. noted, nonbanking activities will be ‘‘Search’’. Select the link ‘‘Submit a MATTERS TO BE CONSIDERED: conducted throughout the United States. Comment’’ that corresponds with Internet Ad Disclaimers Rulemaking Unless otherwise noted, comments ‘‘Information Collection 3090–0302, Proposal for REG 2011–02 (Internet regarding each of these applications Modifications.’’ Follow the instructions Communication Disclaimers and must be received at the Reserve Bank provided at the ‘‘Submit a Comment’’ Definition of ‘‘Public indicated or the offices of the Board of screen. Please include your name, Communication’’) Governors not later than August 2, 2019. company name (if any), and Draft Advisory Opinion 2019–08: A. Federal Reserve Bank of Chicago ‘‘Information Collection 3090–0302, Omar2020 (Colette A. Fried, Assistant Vice Modifications,’’ on your attached Draft Advisory Opinion 2019–09: Mad President) 230 South LaSalle Street, document. Dog PAC Chicago, Illinois 60690–1414: • Mail: General Services Draft Advisory Opinion 2019–12: Area 1 1. Wintrust Financial Corporation, Administration, Regulatory Secretariat Security, Inc. Rosemont, Illinois; to acquire 100 (MVCB), 1800 F Street NW, Washington, Management and Administrative percent of the voting shares of STC DC 20405. ATTN: Ms. Mandell/IC 3090– Matters Bancshares Corp., and thereby 0302, Modifications. CONTACT PERSON FOR MORE INFORMATION: indirectly acquire STC Capital Bank, Instructions: Please submit comments Judith Ingram, Press Officer, Telephone: both of St. Charles, Illinois. only and cite Information Collection 3090–0302, Modifications, in all (202) 694–1220. Board of Governors of the Federal Reserve Individuals who plan to attend and System, July 2, 2019. correspondence related to this collection. Comments received generally require special assistance, such as sign Yao-Chin Chao, language interpretation or other will be posted without change to http:// Assistant Secretary of the Board. www.regulations.gov, including any reasonable accommodations, should [FR Doc. 2019–14433 Filed 7–5–19; 8:45 am] contact Laura E. Sinram, Acting personal and/or business confidential BILLING CODE P Secretary and Clerk, at (202) 694–1040, information provided. To confirm at least 72 hours prior to the meeting receipt of your comment(s), please date. check www.regulations.gov, GENERAL SERVICES approximately two to three days after Laura E. Sinram, ADMINISTRATION submission to verify posting (except Acting Secretary and Clerk of the allow 30 days for posting of comments Commission. [OMB Control No. 3090–0302; Docket No. submitted by mail). 2019–0001; Sequence No. 5] [FR Doc. 2019–14636 Filed 7–3–19; 4:15 pm] SUPPLEMENTARY INFORMATION: BILLING CODE 6715–01–P Submission for OMB Review; General A. Purpose Services Administration Acquisition Regulation; Modifications 552.238–81 The General Services Administration FEDERAL RESERVE SYSTEM Acquisition Regulation (GSAR) clause AGENCY: Office of Acquisition Policy, 552.238–81 Modifications requires Formations of, Acquisitions by, and General Services Administration (GSA). vendors to request a contract Mergers of Bank Holding Companies ACTION: Notice of request for public modification by submitting a request to the Contracting Officer for approval, The companies listed in this notice comments regarding an extension to an except for electronic File updates. At a have applied to the Board for approval, existing OMB clearance. minimum, every request shall describe pursuant to the Bank Holding Company SUMMARY: Under the provisions of the the proposed change(s) and provide the Act of 1956 (12 U.S.C. 1841 et seq.) Paperwork Reduction Act, the rationale for the requested change(s). (BHC Act), Regulation Y (12 CFR part Regulatory Secretariat Division will be 225), and all other applicable statutes submitting to the Office of Management B. Annual Reporting Burden and regulations to become a bank and Budget (OMB) a request to review Respondents: 14,376. holding company and/or to acquire the and approve an information collection Responses per Respondent: 2. assets or the ownership of, control of, or requirement regarding the Modifications Total Responses: 28,752. the power to vote shares of a bank or clause. Hours per Response: 3.5. bank holding company and all of the Total Burden Hours: 100,632. DATES: banks and nonbanking companies Submit comments on or before: owned by the bank holding company, August 7, 2019. C. Public Comments including the companies listed below. FOR FURTHER INFORMATION CONTACT: Ms. A notice published in the Federal The applications listed below, as well Dana Bowman, Procurement Analyst, Register at 84 FR 14376 on April 10, as other related filings required by the General Services Acquisition Policy 2019. No comments were received. Board, are available for immediate Division, GSA, 202–357–9652 or email Public comments are particularly inspection at the Federal Reserve Bank [email protected]. invited on: Whether this collection of indicated. The applications will also be ADDRESSES: Submit comments regarding information is necessary and whether it available for inspection at the offices of this burden estimate or any other aspect will have practical utility; whether our the Board of Governors. Interested of this collection of information, estimate of the public burden of this

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collection of information is accurate, the Secretary and reporting to Congress The times and topics for this meeting and based on valid assumptions and on adoption of standards under the are subject to change. Please refer to the methodology; ways to enhance the Administrative Simplification posted agenda at www.ncvhs.hhs.gov for quality, utility, and clarity of the provisions of the Health Insurance updates. Portability and Accountability Act information to be collected. Contact Persons for More Information: (HIPAA). Obtaining Copies of Proposals Through the Subcommittee on Substantive program information may Requesters may obtain a copy of the Standards, the Committee conducted a be obtained from Rebecca Hines, MHS, information collection documents from comprehensive environmental scan of Executive Secretary, NCVHS, National the General Services Administration, the state of health terminologies and Center for Health Statistics, Centers for Regulatory Secretariat Division (MVCB), vocabularies in the US. The Disease Control and Prevention, 3311 1800 F Street NW, Washington, DC environmental scan findings are Toledo Road, Hyattsville, Maryland 20405; telephone 202–501–4755. Please detailed in the Report, ‘‘Health 20782, telephone (301) 458–4715. cite OMB Control No. 3090– Terminologies and Vocabularies Summaries of meetings and a roster of 0302,’’Modifications’’ in all Environmental Scan’’ completed in Committee members are available on the correspondence. September 2018.i The Committee also NCVHS website: www.ncvhs.hhs.gov, hosted an expert roundtable meeting in where further information including a Jeffrey A. Koses, July 2018 to review and comment on the meeting agenda and instructions to Director, Office of Acquisition Policy, Office environmental scan and to discuss access the live broadcast of the meeting of Government-wide Policy. current challenges and future adoption will be posted. [FR Doc. 2019–14423 Filed 7–5–19; 8:45 am] needs and pathways.ii BILLING CODE 6820–61–P Based on this work, developing Should you require reasonable recommendations to the Secretary accommodation, please contact the CDC regarding adoption and use of the new Office of Equal Employment DEPARTMENT OF HEALTH AND version of the International Opportunity on (770) 488–3210 as soon HUMAN SERVICES Classification of Diseases (ICD–11) in as possible. the US is one of the near-term areas of Sharon Arnold, National Committee on Vital and Health obligation identified by the Committee Statistics: Meeting for focus in 2019. The World Health Associate Deputy Assistant Secretary for Organization (WHO) released ICD–11 in Planning and Evaluation, Science and Data Pursuant to the Federal Advisory June 2018 so countries could preview Policy, Office of the Assistant Secretary for Planning and Evaluation. Committee Act, the Department of and begin their planning. In May 2019, Health and Human Services (HHS) the World Health Assembly voted to [FR Doc. 2019–14375 Filed 7–5–19; 8:45 am] announces the following advisory approve adoption of ICD–11 with an BILLING CODE 4151–05–P committee program. effective date of January 1, 2022. ICD– Name: National Committee on Vital 11 is intended by the WHO for use for and Health Statistics (NCVHS), both mortality (i.e., cause of death) DEPARTMENT OF HEALTH AND Subcommittee on Standards. reporting and morbidity (i.e., diseases) HUMAN SERVICES Date and Times: reporting. Tuesday, August 6, 2019: 9 a.m.–5:30 The goal of this expert roundtable National Institutes of Health p.m. (EDT) meeting is to identify research questions Wednesday, August 7, 2019: 8:30 a.m.– to inform evaluation of the benefit and National Cancer Institute; Amended 3 p.m. (EDT) cost of transition from ICD–10 to ICD– Notice of Meeting Place: U.S. Department of Health and 11 for mortality and morbidity. Specific Human Services, Hubert H. Humphrey meeting objectives include: Notice is hereby given of a change in Building, 200 Independence Avenue • Developing a shared understanding the meeting of the National Cancer SW, Rm. 705–A, Washington, DC 20201. of lessons from the ICD–10 planning Institute Special Emphasis Panel, July 9, Status: Open. process/transition and the differences 2019, 1:00 p.m. to 5:00 p.m., National There will be an opportunity for between ICD–10 and ICD–11. Cancer Institute Shady Grove, 9609 public comment at the end of the • Reaching consensus on the research Medical Center Drive, Rockville, MD second day of the meeting. questions to be answered to inform 20850, which was published in the Purpose: The NCVHS Charter calls for evaluation of cost and benefit of Federal Register on May 13, 2019, 84 the Committee to ‘‘Study the issues transition from ICD–10 to ICD–11 for FR 20900. related to the adoption of uniform data mortality and morbidity—and to The meeting notice is amended to standards for patient medical record identify impacts of not moving to ICD– change the SRO from Dr. Robert Bird to information and the electronic exchange 11 for morbidity. Dr. Caron Lyman. The meeting name of such information and report to the • Identifying key topics and messages Secretary of Health and Human Services to communicate to the industry to foster was also changed from UE4/U24 Review (HHS) recommendations and legislative early stakeholder engagement and to UE5/U24 Review. The meeting is proposals for such standards and preparation for the transition to ICD–11. closed to the public. electronic exchange.’’ Further, the Dated: July 1, 2019. Committee is to ‘‘Advise the Department i NCVHS Health Terminologies and Vocabularies Environmental Scan. https://ncvhs.hhs.gov/wp- Melanie J. Pantoja, on health data collection needs and content/uploads/2018/10/Report-Health- Program Analyst, Office of Federal Advisory strategies; review and monitor the Terminologies-and-Vocabularies-Environmental- Committee Policy. Department’s data and information Scan.pdf. [FR Doc. 2019–14382 Filed 7–5–19; 8:45 am] systems to identify needs, opportunities, ii NCVHS The Health Terminologies and Vocabularies Expert Roundtable Meeting Summary, BILLING CODE 4140–01–P and problems.’’ Terminologies and July 17–18, 2018. https://ncvhs.hhs.gov/wp-content/ vocabularies are also a dimension of the uploads/2018/09/Report-Health-Terminologies- Committee’s charge as part of advising and-Vocabularies-Expert-Roundtable-Report.pdf.

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DEPARTMENT OF HEALTH AND provisions set forth in sections Time: 9:00 a.m. to 1:00 p.m.. HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Agenda: To review and evaluate grant as amended. The grant applications and applications. National Institutes of Health the discussions could disclose Place: National Institutes of Health, 5601 Fishers Lane, Rockville, MD 20892 (Virtual confidential trade secrets or commercial Meeting). National Institute of Mental Health; property such as patentable material, Notice of Closed Meeting Contact Person: Amir E. Zeituni, Ph.D., and personal information concerning Scientific Review Program, Division of Pursuant to section 10(d) of the individuals associated with the grant Extramural Activities, SRP, RM 3G51, Federal Advisory Committee Act, as applications, the disclosure of which National Institutes of Health, NIAID, 5601 amended, notice is hereby given of the would constitute a clearly unwarranted Fishers Lane, MSC 9823, Rockville, MD following meeting. invasion of personal privacy. 20852–9823, 301–496–2550, amir.zeituni@ nih.gov. The meeting will be closed to the Name of Committee: National Institute on public in accordance with the Aging Special Emphasis Panel; Member (Catalogue of Federal Domestic Assistance provisions set forth in sections Conflict SEP. Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: July 31, 2019. Time: 1:00 p.m. to 3:00 p.m. Microbiology and Infectious Diseases as amended. The grant applications and Research, National Institutes of Health, HHS) the discussions could disclose Agenda: To review and evaluate grant applications. confidential trade secrets or commercial Dated: July 1, 2019. Place: National Institute on Aging, Sylvia L. Neal, property such as patentable material, Gateway Building, 7201 Wisconsin Avenue, and personal information concerning Bethesda, MD 20814 (Telephone Conference Program Analyst, Office of Federal Advisory individuals associated with the grant Call). Committee Policy. applications, the disclosure of which Contact Person: Ramesh Vemuri, Ph.D., [FR Doc. 2019–14383 Filed 7–5–19; 8:45 am] would constitute a clearly unwarranted Chief, Scientific Review Branch, Scientific BILLING CODE 4140–01–P invasion of personal privacy. Review Branch, National Institute on Aging, National Institutes of Health, 7201 Wisconsin Name of Committee: National Institute of Avenue, Suite 2C–212, Bethesda, MD 20892, DEPARTMENT OF HEALTH AND Mental Health Special Emphasis Panel; 301–402–7700, [email protected]. HUMAN SERVICES Career Development Awards. (Catalogue of Federal Domestic Assistance Date: July 22, 2019. Program Nos. 93.866, Aging Research, National Institutes of Health Time: 9:00 a.m. to 5:00 p.m. National Institutes of Health, HHS) Agenda: To review and evaluate grant applications. Dated: July 1, 2019. National Institute of Neurological Place: National Institutes of Health, Melanie J. Pantoja, Disorders and Stroke; Notice of Closed Neuroscience Center Building (NSC), 6001 Program Analyst, Office of Federal Advisory Meeting Executive Boulevard, Rockville, MD 20852 Committee Policy. (Telephone Conference Call). [FR Doc. 2019–14381 Filed 7–5–19; 8:45 am] Pursuant to section 10(d) of the Contact Person: Aileen Schulte, Ph.D., Federal Advisory Committee Act, as BILLING CODE 4140–01–P Scientific Review Officer, Division of amended, notice is hereby given of the Extramural Activities, National Institute of following meeting. Mental Health, NIH, Neuroscience Center, 6001 Executive Blvd., Room 6140, MSC 9608, DEPARTMENT OF HEALTH AND The meeting will be closed to the Bethesda, MD 20892–9608, 301–443–1225, HUMAN SERVICES public in accordance with the [email protected]. provisions set forth in sections This notice is being published less than 15 National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., days prior to the meeting due to the timing as amended. The grant applications and limitations imposed by the review and National Institute of Allergy and the discussions could disclose funding cycle. Infectious Diseases; Notice of Closed confidential trade secrets or commercial (Catalogue of Federal Domestic Assistance Meeting Program No. 93.242, Mental Health Research property such as patentable material, Grants, National Institutes of Health, HHS) Pursuant to section 10(d) of the and personal information concerning Federal Advisory Committee Act, as individuals associated with the grant Dated: July 1, 2019. amended, notice is hereby given of the applications, the disclosure of which Melanie J. Pantoja, following meeting. would constitute a clearly unwarranted Program Analyst, Office of Federal Advisory The meeting will be closed to the invasion of personal privacy. Committee Policy. public in accordance with the Name of Committee: National Institute of [FR Doc. 2019–14377 Filed 7–5–19; 8:45 am] provisions set forth in sections Neurological Disorders and Stroke Initial BILLING CODE 4140–01–P 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Review Group Neurological Sciences and as amended. The grant applications and Disorders K. the discussions could disclose Date: July 9–10, 2019. DEPARTMENT OF HEALTH AND confidential trade secrets or commercial Time: 8:00 a.m. to 12:00 p.m. HUMAN SERVICES property such as patentable material, Agenda: To review and evaluate grant and personal information concerning applications. National Institutes of Health Place: Courtyard by Marriott, 5520 individuals associated with the grant Wisconsin Avenue, Chevy Chase, MD 20815. National Institute on Aging; Notice of applications, the disclosure of which Contact Person: Shanta Rajaram, Ph.D. Closed Meeting would constitute a clearly unwarranted Scientific Review Officer, Scientific Review invasion of personal privacy. Branch, Division of Extramural Research, Pursuant to section 10(d) of the Name of Committee: National Institute of NINDS/NIH/DHHS/Neuroscience Center, Federal Advisory Committee Act, as Allergy and Infectious Diseases Special 6001 Executive Blvd., Suite 3208, MSC9529, amended, notice is hereby given of the Emphasis Panel; NIH Support for Bethesda, MD 20852, (301) 435–6033, following meeting. Conferences and Scientific Meetings (Parent [email protected]. The meeting will be closed to the R13 Clinical Trial Not Allowed). This notice is being published less than 15 public in accordance with the Date: August 6–8, 2019. days prior to the meeting due to the timing

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limitations imposed by the review and certified to meet the standards of the Kroll Laboratory Specialists, Inc., funding cycle. Mandatory Guidelines for Federal Scientific Testing Laboratories, Inc.; (Catalogue of Federal Domestic Assistance Workplace Drug Testing Programs Kroll Scientific Testing Laboratories, Program Nos. 93.853, Clinical Research (Mandatory Guidelines). The Mandatory Inc.). Related to Neurological Disorders; 93.854, Guidelines were first published in the Baptist Medical Center-Toxicology Biological Basis Research in the Federal Register on April 11, 1988 (53 Laboratory, 11401 I–30, Little Rock, Neurosciences, National Institutes of Health, AR 72209–7056, 501–202–2783 HHS) FR 11970), and subsequently revised in the Federal Register on June 9, 1994 (59 (Formerly: Forensic Toxicology Dated: July 1, 2019. FR 29908); September 30, 1997 (62 FR Laboratory Baptist Medical Center). Sylvia L. Neal, 51118); April 13, 2004 (69 FR 19644); Clinical Reference Laboratory, Inc., 8433 Program Analyst, Office of Federal Advisory November 25, 2008 (73 FR 71858); Quivira Road, Lenexa, KS 66215– Committee Policy. December 10, 2008 (73 FR 75122); April 2802, 800–445–6917. [FR Doc. 2019–14378 Filed 7–5–19; 8:45 am] 30, 2010 (75 FR 22809); and on January Cordant Health Solutions, 2617 East L BILLING CODE 4140–01–P 23, 2017 (82 FR 7920) Street, Tacoma, WA 98421, 800–442– The Mandatory Guidelines were 0438 (Formerly: STERLING Reference initially developed in accordance with Laboratories). DEPARTMENT OF HEALTH AND Executive Order 12564 and section 503 Desert Tox, LLC, 10221 North 32nd HUMAN SERVICES of Public Law 100–71. The ‘‘Mandatory Street Suite J, Phoenix, AZ 85028, Guidelines for Federal Workplace Drug 602–457–5411. Substance Abuse and Mental Health Testing Programs,’’ as amended in the DrugScan, Inc., 200 Precision Road, Services Administration revisions listed above, requires strict Suite 200, Horsham, PA 19044, 800– standards that laboratories and IITFs 235–4890. Current List of HHS-Certified must meet in order to conduct drug and Dynacare*, 245 Pall Mall Street, Laboratories and Instrumented Initial specimen validity tests on urine London, ONT, Canada N6A 1P4, 519– Testing Facilities Which Meet Minimum specimens for federal agencies. 679–1630 (Formerly: Gamma- Standards To Engage in Urine Drug To become certified, an applicant Dynacare Medical Laboratories). Testing for Federal Agencies laboratory or IITF must undergo three ElSohly Laboratories, Inc., 5 Industrial Park Drive, Oxford, MS 38655, 662– AGENCY: Substance Abuse and Mental rounds of performance testing plus an Health Services Administration, HHS. on-site inspection. To maintain that 236–2609. Laboratory Corporation of America ACTION: Notice. certification, a laboratory or IITF must participate in a quarterly performance Holdings, 7207 N. Gessner Road, SUMMARY: The Department of Health and testing program plus undergo periodic, Houston, TX 77040, 713–856–8288/ Human Services (HHS) notifies federal on-site inspections. 800–800–2387. agencies of the laboratories and Laboratories and IITFs in the Laboratory Corporation of America Instrumented Initial Testing Facilities applicant stage of certification are not to Holdings, 69 First Ave., Raritan, NJ (IITF) currently certified to meet the be considered as meeting the minimum 08869, 908–526–2400/800–437–4986, standards of the Mandatory Guidelines requirements described in the HHS (Formerly: Roche Biomedical for Federal Workplace Drug Testing Mandatory Guidelines. A HHS-certified Laboratories, Inc.). Programs (Mandatory Guidelines). laboratory or IITF must have its letter of Laboratory Corporation of America A notice listing all currently HHS- certification from HHS/SAMHSA Holdings, 1904 TW Alexander Drive, certified laboratories and IITFs is (formerly: HHS/NIDA), which attests Research Triangle Park, NC 27709, published in the Federal Register that it has met minimum standards. 919–572–6900/800–833–3984, during the first week of each month. If In accordance with the Mandatory (Formerly: LabCorp Occupational any laboratory or IITF certification is Guidelines dated January 23, 2017 (82 Testing Services, Inc., CompuChem suspended or revoked, the laboratory or FR 7920), the following HHS-certified Laboratories, Inc.; CompuChem IITF will be omitted from subsequent laboratories and IITFs meet the Laboratories, Inc., A Subsidiary of lists until such time as it is restored to minimum standards to conduct drug Roche Biomedical Laboratory; Roche full certification under the Mandatory and specimen validity tests on urine CompuChem Laboratories, Inc., A Guidelines. specimens: Member of the Roche Group). If any laboratory or IITF has Laboratory Corporation of America HHS-Certified Instrumented Initial withdrawn from the HHS National Holdings, 1120 Main Street, Testing Facilities Laboratory Certification Program (NLCP) Southaven, MS 38671, 866–827–8042/ during the past month, it will be listed Dynacare, 6628 50th Street NW, 800–233–6339, (Formerly: LabCorp at the end and will be omitted from the Edmonton, AB Canada T6B 2N7, 780– Occupational Testing Services, Inc.; monthly listing thereafter. 784–1190 (Formerly: Gamma- MedExpress/National Laboratory This notice is also available on the Dynacare Medical Laboratories). Center). LabOne, Inc. d/b/a Quest Diagnostics, internet at http://www.samhsa.gov/ HHS-Certified Laboratories workplace. 10101 Renner Blvd., Lenexa, KS ACM Medical Laboratory, Inc., 160 66219, 913–888–3927/800–873–8845, FOR FURTHER INFORMATION CONTACT: Elmgrove Park, Rochester, NY 14624, (Formerly: Quest Diagnostics Charles LoDico, Division of Workplace 844–486–9226. Incorporated; LabOne, Inc.; Center for Programs, SAMHSA/CSAP, 5600 Alere Toxicology Services, 1111 Newton Laboratory Services, a Division of Fishers Lane, Room 16N02C, Rockville, St., Gretna, LA 70053, 504–361–8989/ LabOne, Inc.). Maryland 20857; 240–276–2600 (voice). 800–433–3823 (Formerly: Kroll MedTox Laboratories, Inc., 402 W. SUPPLEMENTARY INFORMATION: The Laboratory Specialists, Inc., County Road D, St. Paul, MN 55112, Department of Health and Human Laboratory Specialists, Inc.). 651–636–7466/800–832–3244. Services (HHS) notifies federal agencies Alere Toxicology Services, 450 Legacy Laboratory Services—MetroLab, of the laboratories and Instrumented Southlake Blvd., Richmond, VA 1225 NE 2nd Ave., Portland, OR Initial Testing Facilities (IITF) currently 23236, 804–378–9130 (Formerly: 97232, 503–413–5295/800–950–5295.

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Minneapolis Veterans Affairs Medical 7920). After receiving DOT certification, Designation and Certification, but also Center, Forensic Toxicology the laboratory will be included in the to address other items of note that may Laboratory, 1 Veterans Drive, monthly list of HHS-certified be necessary for the Secretary, or their Minneapolis, MN 55417, 612–725– laboratories and participate in the NLCP Designee to make their decision. 2088, Testing for Veterans Affairs certification maintenance program. DATES: Comments are encouraged and (VA) Employees Only. Charles P. LoDico, accepted until August 7, 2019. Pacific Toxicology Laboratories, 9348 Chemist. ADDRESSES: Interested persons are DeSoto Ave., Chatsworth, CA 91311, invited to submit written comments on [FR Doc. 2019–14418 Filed 7–5–19; 8:45 am] 800–328–6942, (Formerly: Centinela this proposed information collection to Hospital Airport Toxicology BILLING CODE 4160–20–P the Office of Information and Regulatory Laboratory). Affairs, Office of Management and Pathology Associates Medical Budget. Comments should be addressed Laboratories, 110 West Cliff Dr., DEPARTMENT OF HOMELAND to the OMB Desk Officer, via electronic Spokane, WA 99204, 509–755–8991/ SECURITY mail to [email protected]. 800–541–7891x7. [DHS–2019–0028] FOR FURTHER INFORMATION CONTACT: Phamatech, Inc., 15175 Innovation DHS/S&T/OCIO Program Manager: Drive, San Diego, CA 92128, 888– Support Anti-Terrorism by Fostering Bruce Davidson, bruce.davidson@ 635–5840. Effective Technologies Act (SAFETY HQ.DHS.GOV or 202–254–5729 (Not a Quest Diagnostics Incorporated, 1777 Act) toll free number). Montreal Circle, Tucker, GA 30084, AGENCY: Science and Technology SUPPLEMENTARY INFORMATION: The 800–729–6432, (Formerly: SmithKline SAFETY Act Program collects this Beecham Clinical Laboratories; Directorate (S&T), Department of Homeland Security (DHS). information in order to evaluate anti- SmithKline Bio-Science Laboratories). terrorism technologies, based on the Quest Diagnostics Incorporated, 400 ACTION: 30-Day Notice of Information Collection; Request for comment. economic and technical criteria Egypt Road, Norristown, PA 19403, contained in the Regulations 610–631–4600/877–642–2216, (Extension of a Currently Approved Collection, 1640–0001). Implementing the Support Anti- (Formerly: SmithKline Beecham Terrorism by Fostering Effective Clinical Laboratories; SmithKline Bio- SUMMARY: S&T will submit the following Technologies Act (6 U.S.C. 441), for Science Laboratories). Information Collection Request (ICR) to protection in accordance with the Act, Redwood Toxicology Laboratory, 3700 the Office of Management and Budget and therefore encourage the Westwind Blvd., Santa Rosa, CA (OMB) for review and clearance in development and deployment of 95403, 800–255–2159. accordance with the Paperwork innovative anti-terrorism products and U.S. Army Forensic Toxicology Drug Reduction Act of 1995. The DHS S&T services. The SAFETY Act enacted as Testing Laboratory, 2490 Wilson St., currently has approval to collect part of the Homeland Security Act of Fort George G. Meade, MD 20755– information using the forms: 2002, Public Law 107–296. The program 5235, 301–677–7085, Testing for Registration of a Seller as an Anti- provides legal liability protections for Department of Defense (DoD) Terrorism Technology (DHS Form providers of qualified anti-terrorism Employees Only. 10010), Request for a Pre-application technologies. The collected information * The Standards Council of Canada Consultation (DHS Form 10009), Notice is used by S&T to facilitate the (SCC) voted to end its Laboratory of License of Qualified Anti-Terrorism evaluation of SAFETY Act applications Accreditation Program for Substance Technology (DHS Form 10003), Notice received from any person, firm, or other Abuse (LAPSA) effective May 12, 1998. of Modification of Qualified Anti- entity that provides an anti-terrorism Laboratories certified through that Terrorism Technology (DHS Form technology. S&T provides a secure program were accredited to conduct 10002), Application for Transfer of website, accessible through forensic urine drug testing as required SAFETY Act Designation and www.SAFETYAct.gov, through which by U.S. Department of Transportation Certification (DHS Form 10001), the public may submit the information (DOT) regulations. As of that date, the Application for Renewal Of SAFETY collection, however; the public has the certification of those accredited Act Protections of a Qualified Anti- option of providing the information via Canadian laboratories will continue Terrorism Technology (DHS Form hardcopy forms that via mail to the under DOT authority. The responsibility 10057), Application for SAFETY Act program office. The data collection for conducting quarterly performance Developmental Testing and Evaluation forms have standardized the collection testing plus periodic on-site inspections Designation (DHS Form 10006), of information that is both necessary of those LAPSA-accredited laboratories Application for SAFETY Act and essential for DHS. The Act applies was transferred to the U.S. HHS, with Designation (DHS Form 10008), to a broad range of technologies, the HHS’ NLCP contractor continuing to Application for SAFETY Act including products, services, and have an active role in the performance Certification (DHS Form 10007), software, or combinations thereof. testing and laboratory inspection SAFETY Act Block Designation DHS, in accordance with the processes. Other Canadian laboratories Application (DHS Form 10005), and Paperwork Reduction Act (PRA), 44 wishing to be considered for the NLCP SAFETY Act Block Certification U.S.C. 3501 et seq., provides the general may apply directly to the NLCP Application (DHS Form 10004) until public and Federal agencies with an contractor just as U.S. laboratories do. June 30, 2019 with OMB approval opportunity to comment on proposed, Upon finding a Canadian laboratory to number 1640–0001. The information revised, and continuing collections of be qualified, HHS will recommend that collection activity will determine if a information. DHS is soliciting DOT certify the laboratory (Federal technology merits SAFETY Act comments on the proposed Information Register, July 16, 1996) as meeting the protections. The information requested Collection Request (ICR) that is minimum standards of the Mandatory in the collection instruments are described below. DHS is especially Guidelines published in the Federal necessary to address not only the interested in public comment Register on January 23, 2017 (82 FR criteria and conditions for SAFETY Act addressing the following issues: (1) Is

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this collection necessary to the proper will consist of due and payable entities only. Qualified non-profit or functions of the Department; (2) will Secretary-held reverse mortgage loans. unit of local government bidders will this information be processed and used The mortgage loans consist of first liens also have the opportunity to bid on up in a timely manner; (3) is the estimate secured by single family, vacant to 10% of the loans in five of the larger of burden accurate; (4) how might the residential properties, where all regional pools. Department enhance the quality, utility, borrowers are deceased, and no The Bidding Process and clarity of the information to be borrower is survived by a non- collected; and (5) how might the borrowing spouse. The BIP describes in detail the Department minimize the burden of this This notice also generally describes procedure for bidding in HVLS 2019–2. collection on the respondents, including the bidding process for the sale and The BIP also includes a standardized through the use of information certain persons who are ineligible to non-negotiable Conveyance, Assignment technology? Please note that written bid. This is the third sale offering of its and Assumption Agreement for HVLS comments received in response to this type and the sale will be held on July 2019–2 (CAA). Qualified bidders will be notice will be considered public 24, 2019. required to submit a deposit with their records. DATES: For this sale action, the Bidder’s bid. Deposits are calculated based upon Title of Collection: Support Anti- Information Package (BIP) is expected to each qualified bidder’s aggregate bid Terrorism by Fostering Effective be made available to qualified bidders price. Technologies Act (SAFETY Act) forms on or about June 21, 2019. Bids for the HUD will evaluate the bids submitted include: DHS Form 10010, DHS Form HVLS 2019–2 sale will be accepted on and determine the successful bid, in 10009, DHS Form 10008, DHS Form the Bid Date of July 24, 2019 (Bid Date). terms of the best value to HUD, in its 10007, DHS Form 10006, DHS Form HUD anticipates that award(s) will be sole and absolute discretion. If a 10005, DHS Form 10004, DHS Form made on or about July 24, 2019 (the qualified bidder is successful, the 10003, DHS Form 10002, DHS Form Award Date). qualified bidder’s deposit will be non- 10001, DHS Form 100057. ADDRESSES: To become a qualified refundable and will be applied toward Prior OMB Control Number: 1640– bidder and receive the BIP, prospective the purchase price. Deposits will be 0016. bidders must complete, execute, and returned to unsuccessful bidders. Prior Federal Register Document: submit a Confidentiality Agreement and This notice provides some of the basic 2019–0010, April 5, 2019. a Qualification Statement acceptable to terms of sale. The CAA, which is Type of Review: An extension of an HUD. Both documents are available via included in the BIP, provides information collection. the HUD website at: http:// comprehensive contractual terms and Affected Public: Individuals and www.hud.gov/sfloansales or via: http:// conditions. To ensure a competitive Households, Businesses and www.verdiassetsales.com. Please mail bidding process, the terms of the Organizations, State, Local or Tribal and fax executed documents to Verdi bidding process and the CAA are not Government. Consulting, Inc.: Verdi Consulting, Inc., subject to negotiation. Frequency of Collection: One per 8400 Westpark Drive, 4th Floor, Due Diligence Review Request. McLean, VA 22102, Attention: HUD The BIP describes how qualified Estimated Time per Respondent: 18.2 SFLS Loan Sale Coordinator, Fax: 1– bidders may access the due diligence minutes or under. 703–584–7790. Number of Respondents: 665. materials remotely via a high-speed FOR FURTHER INFORMATION CONTACT: John internet connection. Total Burden Hours: 3,325. Lucey, Director, Asset Sales Office, Dated: June 10, 2019. Room 3136, Department of Housing and Mortgage Loan Sale Policy Gregg Piermarini, Urban Development, 451 Seventh Street HUD reserves the right to remove Acting Chief Information Officer, Science and SW, Washington, DC 20410–8000; mortgage loans from HVLS 2019–2 at Technology Directorate. telephone 202–708–2625, extension any time prior to the Award Date. HUD [FR Doc. 2019–14041 Filed 7–5–19; 8:45 am] 3927. Hearing- or speech-impaired also reserves the right to reject any and BILLING CODE 9110–9F–P individuals may call 202–708–4594 all bids, in whole or in part, and include (TTY). These are not toll-free numbers. any reverse mortgage loans in a later SUPPLEMENTARY INFORMATION: HUD sale. Deliveries of mortgage loans will DEPARTMENT OF HOUSING AND announces its intention to sell in HVLS occur in conjunction with settlement URBAN DEVELOPMENT 2019–2 due and payable Secretary-held and servicing transfer, approximately 30 reverse mortgage loans. The loans to 45 days after the Award Date. [Docket No. FR–6133–N–02] consist of first liens secured by single The HVLS 2019–2 reverse mortgage Notice of HUD Vacant Loan Sales family, vacant residential properties, loans were insured by and were (HVLS 2019–2) where all borrowers are deceased, and assigned to HUD pursuant to section no borrower is survived by a non- 255 of the National Housing Act, as AGENCY: Office of the Assistant borrowing spouse. amended. The sale of the reverse Secretary for Housing—Federal Housing A listing of the mortgage loans is mortgage loans is pursuant to section Commissioner, HUD. included in the due diligence materials 204(g) of the National Housing Act. made available to qualified bidders. The ACTION: Notice of sales of reverse Mortgage Loan Sale Procedure mortgage loans. mortgage loans will be sold without FHA insurance and with servicing HUD selected an open competitive SUMMARY: This notice announces HUD’s released. HUD will offer qualified whole-loan sale as the method to sell intention to competitively offer multiple bidders an opportunity to bid the mortgage loans for this specific sale residential reverse mortgage pools competitively on the mortgage loans. transaction. For HVLS 2019–2, HUD has consisting of approximately 1,500 The loans are expected to be offered in determined that this method of sale reverse mortgage notes secured by regional pools, with one pool in Puerto optimizes HUD’s return on the sale of properties with a loan balance of Rico set-aside for bidding by qualified these loans, affords the greatest approximately $330 million. The sale non-profit or unit of local government opportunity for all qualified bidders to

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bid on the mortgage loans, and provides reporting requirements under a such reverse mortgage loan because it is the quickest and most efficient vehicle Conveyance, Assignment and an entity or individual that: for HUD to dispose of the mortgage Assumption Agreement executed for (a) Serviced or held such reverse loans. any previous mortgage loan sale of mortgage loan at any time during the HUD; Bidder Ineligibility six-month period prior to the bid, or 6. An employee of HUD’s Office of In order to bid in HVLS 2019–2 as a Housing, a member of such employee’s (b) is any principal of any entity or qualified bidder, a prospective bidder household, or an entity owned or individual described in the preceding must complete, execute and submit both controlled by any such employee or sentence; a Confidentiality Agreement and a member of such an employee’s (c) any employee or subcontractor of Qualification Statement, including any household with household to be such entity or individual during that applicable nonprofit or unit of local inclusive of the employee’s father, six-month period; or government addendum, acceptable to mother, stepfather, stepmother, brother, (d) any entity or individual that HUD. In the Qualification Statement, sister, stepbrother, stepsister, son, the prospective bidder must provide daughter, stepson, stepdaughter, employs or uses the services of any certain representations and warranties grandparent, grandson, granddaughter, other entity or individual described in regarding the prospective bidder, father-in-law, mother-in-law, brother-in- this paragraph in preparing its bid on including but not limited to (i) the law, sister-in-law, son-in-law, daughter- such reverse mortgage loan. Qualified prospective bidder’s board of directors, in-law, first cousin, the spouse of any of non-profit or unit of local government (ii) the prospective bidder’s direct the foregoing, and the employee’s bidders seeking to participate in the parent, (iii) the prospective bidder’s spouse; nonprofit and government pools or sub- subsidiaries, (iv) any related entity with 7. A contractor, subcontractor and/or pools, which includes bidding on 10% which the prospective bidder shares a consultant or advisor (including any of the loans from the larger regional common officer, director, subcontractor agent, employee, partner, director, or pools, must satisfy additional or sub-contractor who has access to principal of any of the foregoing) who qualification requirements that are set Confidential Information as defined in performed services for or on behalf of forth in a separate addendum to the the Confidentiality Agreement or is HUD in connection with the sale; Qualification Statement. Such bidders involved in the formation of a bid 8. An individual or entity that must complete the addendum and transaction (collectively the ‘‘Related knowingly acquired or will acquire submit it with the Qualification Entities’’), and (v) the prospective prior to the sale date material non- bidder’s repurchase lenders. The Statement in order to bid on any public information, other than that prospective bidder is ineligible to bid on nonprofit and government pools or sub- information which is made available to any of the reverse mortgage loans pools. Bidder by HUD pursuant to the terms of included in HVLS 2019–2 if the this Qualification Statement, about Freedom of Information Act Requests prospective bidder, its Related Entities mortgage loans offered in the sale; or its repurchase lenders, is any of the HUD reserves the right, in its sole and 9. An individual or entity that following, unless other exceptions apply absolute discretion, to disclose knowingly uses the services, directly or as provided for the in the Qualification information regarding HVLS 2019–2, indirectly, of any person or entity Statement. including, but not limited to, the 1. An individual or entity that is ineligible under 1 through 10 to assist in preparing any of its bids on the identity of any successful qualified currently debarred, suspended, or bidder and its bid price or bid excluded from doing business with mortgage loans; 10. An individual or entity which percentage for any pool of loans or HUD pursuant to the Governmentwide individual loan, upon the closing of the Suspension and Debarment regulations knowingly employs or uses the services of an employee of HUD’s Office of sale of all the Mortgage Loans. Even if at 2 CFR parts 180 and 2424; HUD elects not to publicly disclose any 2. An individual or entity that is Housing (other than in such employee’s information relating to SFLS 2019–2, currently suspended, debarred or official capacity); or otherwise restricted by any department The Qualification Statement has HUD will disclose any information that or agency of the federal government or additional representations and HUD is obligated to disclose pursuant to of a state government from doing warranties which the prospective bidder the Freedom of Information Act and all business with such department or must make, including but not limited to regulations promulgated thereunder. the representation and warranty that the agency; Scope of Notice 3. An individual or entity that is prospective bidder or its Related currently debarred, suspended, or Entities are not and will not knowingly This notice applies to HVLS 2019–2 excluded from doing mortgage related use the services, directly or indirectly, and does not establish HUD’s policy for business, including having a business of any person or entity that is, any of the the sale of other mortgage loans. license suspended, surrendered or following (and to the extent that any revoked, by any federal, state or local such individual or entity would prevent Dated: July 2, 2019. government agency, division or the prospective bidder from making the John L. Garvin, department; following representations, such General Deputy Assistant Secretary for 4. An entity that has had its right to individual or entity has been removed Housing. act as a Government National Mortgage from participation in all activities [FR Doc. 2019–14465 Filed 7–5–19; 8:45 am] Association (‘‘Ginnie Mae’’) issuer related to this sale and has no ability to BILLING CODE 4210–67–P terminated and its interest in mortgages influence or control individuals backing Ginnie Mae mortgage-backed involved in formation of a bid for this securities extinguished by Ginnie Mae; sale): 5. An individual or entity that is in (1) An entity or individual is violation of its neighborhood stabilizing ineligible to bid on any included reverse outcome obligations or post-sale mortgage loan or on the pool containing

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DEPARTMENT OF HOUSING AND Form Number: None. DEPARTMENT OF THE INTERIOR URBAN DEVELOPMENT Description of the need for the Bureau of Land Management [Docket No. FR–7011–N–29] information and proposed use: Executive Order 12862, ‘‘Setting [LLNVL06000 L58210000.EU0000 241A; 60-Day Notice of Proposed Information Customer Service Standards’’ requires N–89337; N–94524; N–94525; MO Collection: Generic Customer that Federal agencies provide the #4500132140] Satisfaction Surveys highest quality service to our customers by identifying them and determining Notice of Realty Action: Proposed AGENCY: Office of the Chief Information what they think about our services. The Competitive Sale in White Pine County, Officer, HUD. surveys covered in the request for a Nevada ACTION: Notice. generic clearance will provide HUD a AGENCY: Bureau of Land Management, SUMMARY: HUD is seeking approval from means to gather this data directly from Interior. our customers. HUD will conduct the Office of Management and Budget ACTION: Notice of realty action. (OMB) for the information collection various customer satisfaction surveys to described below. In accordance with the gather feedback and data directly from SUMMARY: The Bureau of Land Paperwork Reduction Act, HUD is our customers to determine the kind Management (BLM) proposes to offer, by requesting comment from all interested and quality of services and products competitive sale, three parcels of public parties on the proposed collection of they want and expect to receive. land totaling 431.53 acres in White Pine information. The purpose of this notice Estimated Number of Respondents: County, Nevada, pursuant to the White is to allow for 60 days of public 117,248. Pine County Conservation, Recreation, comment. Estimated Number of Responses: and Development Act of 2006 (WPCCRDA). The sale will be subject to DATES: Comments Due Date: September 117,248. 6, 2019. the applicable provisions of Section 203 Frequency of Response: 1. of the Federal Land Policy and ADDRESSES: Interested persons are Average Hours per Response: 0.80. Management Act of 1976 (FLPMA), as invited to submit comments regarding Total Estimated Burden: 13,229. amended and the BLM land sale this proposal. Comments should refer to regulations. Public lands must sell at the proposal by name and/or OMB B. Solicitation of Public Comment not less than the appraised fair market Control Number and should be sent to: values (FMV). Colette Pollard, Reports Management This notice is soliciting comments Officer, QDAM, Department of Housing from members of the public and affected DATES: Submit written comments to the and Urban Development, 451 7th Street parties concerning the collection of BLM at the address below. The BLM SW, Room 4176, Washington, DC information described in Section A on must receive the comments on or before 20410–5000; telephone 202–402–3400 the following: August 22, 2019. The sale, by sealed-bid (this is not a toll-free number) or email (1) Whether the proposed collection and oral public auction will be held on at [email protected] for a copy of of information is necessary for the Thursday, September 5, 2019, at 1:00 the proposed forms or other available proper performance of the functions of p.m., Pacific Time at White Pine County information. Persons with hearing or the agency, including whether the Library, 950 Campton Street, Ely, speech impairments may access this information will have practical utility; Nevada 89301. The BLM will start number through TTY by calling the toll- accepting sealed-bids beginning August (2) The accuracy of the agency’s 22, 2019. Sealed-bids must be received free Federal Relay Service at (800) 877– estimate of the burden of the proposed 8339. at the BLM, Bristlecone Field Office no collection of information; later than 4:30 p.m., Pacific Time on FOR FURTHER INFORMATION CONTACT: (3) Ways to enhance the quality, August 29, 2019. The BLM will open Colette Pollard, Reports Management utility, and clarity of the information to sealed-bids on the day of the sale, just Officer, QDAM, Department of Housing be collected; and prior to the oral bidding. and Urban Development, 451 7th Street SW, Washington, DC 20410; email (4) Ways to minimize the burden of ADDRESSES: • Colette Pollard at Colette.Pollard@ the collection of information on those Mail written comments, submit hud.gov or telephone 202–402–3400. who are to respond; including through sealed-bids and obtain forms at: This is not a toll-free number. Persons the use of appropriate automated Bristlecone Field Office, 702 N with hearing or speech impairments collection techniques or other forms of Industrial Way, Ely, NV 89301. • may access this number through TTY by information technology, e.g., permitting Sale Location: White Pine County calling the toll-free Federal Relay electronic submission of responses. Library, 950 Campton Street, Ely, Service at (800) 877–8339. Copies of Nevada 89301. HUD encourages interested parties to • available documents submitted to OMB submit comment in response to these Certificate of Eligibility forms are may be obtained from Ms. Pollard. questions. also available at the BLM website at: https://www.blm.gov/documents/ SUPPLEMENTARY INFORMATION: This Authority nevada/frequently-requested/data/ notice informs the public that HUD is certificate-eligibility. seeking approval from OMB for the Section 3507 of the Paperwork • Registration forms are available at: information collection described in Reduction Act of 1995, 44 U.S.C. https://www.blm.gov/services/ Section A. Chapter 35. electronic-forms. A. Overview of Information Collection Dated: June 26, 2019. FOR FURTHER INFORMATION CONTACT: Title of Information Collection: Colette Pollard, Susan Grande, Realty Specialist, Ely Generic Customer Satisfaction Surveys. Department Paperwork Reduction Act Officer, District Office, 702 North Industrial OMB Approval Number: 2535–0116. Office of the Chief Information Officer. Way, Ely, Nevada 89301, by telephone Type of Request: Extension on a [FR Doc. 2019–14464 Filed 7–5–19; 8:45 am] at 775–289–1809, or by email at currently approved. BILLING CODE 4210–67–P [email protected]; or Mindy Seal, Field

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Manager, Bristlecone Field Office, at documents, including a map and the by certified check, bank draft, cashier’s 775–289–1800, or by email at mseal@ summary of appraisals for the sale, are check, or United States postal money blm.gov. Persons who use a available for review at the BLM Ely order made payable in United States telecommunications device for the deaf District Office. dollars to the ‘‘Department of the (TDD) may call the Federal Relay FLPMA Section 209, 43 U.S.C. Interior—Bureau of Land Management.’’ Service (FRS) at 1–800–877–8339 to 1719(a), states that ‘‘all conveyances of The BLM will not accept personal or contact the above individuals during title issued by the Secretary . . . shall company checks. The sealed-bid normal business hours. The FRS is reserve to the United States all minerals envelope must contain the deposit and available 24 hours a day, 7 days a week, in the lands.’’ The BLM prepared a completed and signed ‘‘Certificate of to leave a message or question with the mineral potential reports dated May 31, Eligibility’’ form stating the name, above individual. You will receive a 2018 (N–89337), July 11, 2018 (N– mailing address, and telephone number reply during normal business hours. 94524), and June 22, 2018 (N–94525). of the entity or person submitting the SUPPLEMENTARY INFORMATION: The BLM Based on these reports, BLM concluded bid. Certificate of Eligibility and proposes to conduct a Competitive Sale that no significant mineral resource registration forms are available at the for three parcels of public land in White value, reserved to the United States, will BLM Bristlecone Field Office at the Pine County, Nevada, described as be affected by the disposal of these address listed in the ADDRESSES section follows: Mount Diablo Meridian, parcels. These parcels are not required and on the BLM website at: https:// Nevada. for any Federal purposes and their www.blm.gov/documents/nevada/ disposal is in the public interest and frequently-requested/data/certificate- Parcel in McGill, NV meets the intent of the WPCCRDA. eligibility and https://www.blm.gov/ N–89337 Both WPCCRDA and FLPMA express services/electronic-forms. Pursuant to T. 17 N, R. 64 E, a preference that disposal of public 43 CFR 2711.3–1(c), if two or more Sec. 7, E1⁄2SW1⁄4 and SE1⁄4. lands take place through a competitive sealed-bid envelopes contain valid bids The area described contains 240 acres. bidding process. In accordance with 43 of the same amount, the bidders will be CFR 2710.0–6(c)(3)(i), a competitive sale Parcels in Ely, NV notified via phone or in person to of public land may be used where submit another bid within ten minutes N–94524 ‘‘there would be a number of interested or to withdraw their original bid. The T. 17 N, R. 63 E, parties bidding for the lands and (A) highest qualifying sealed-bid will be Sec. 22, NW1⁄4SW1⁄4 and SW1⁄4SW1⁄4. wherever in the judgment of the publicly declared in accordance with 43 The area described contains 80 acres. authorized officer the lands are CFR 2711.3–1(d). Oral bidding will start N–94525 accessible and usable regardless of T. 16 N, R. 63 E, at the highest sealed-bid amount. Bids Sec. 26, lots 6 and 8; adjoining land ownership and (B) for less than the federally approved Sec. 35, lot 4, E1⁄2NW1⁄4NW1⁄4, wherever the lands are within a FMV will not be qualified. E1⁄2SW1⁄4NW1⁄4, and SE1⁄4NW1⁄4. developing or urbanizing area and land Acceptance or rejection of any offer(s) The area described contains 111.53 acres. values are increasing due to their to purchase will be in accordance with location and interest on the competitive the procedures set forth in 43 CFR Upon publication of this Notice in the market.’’ 2711.3–1(f) and (g). All bid deposits Federal Register, the sale parcels will be submitted with unsuccessful bids will segregated from all forms of Competitive Sale Procedures as Prescribed by 43 CFR 2711.3–1 be returned to the bidders or their appropriation under the public land authorized representative upon laws, except for the sale provisions of Sales Procedures: Registration for oral presentation of acceptable photo FLPMA. Upon publication and until bidding will begin at 1:00 p.m., Pacific identification at the BLM–CFO, or by completion of the sale, the BLM will no Time at the White Pine County Library, certified mail. If a high bidder is unable longer accept land use applications 950 Campton Street, Ely, Nevada 89301, to consummate the transaction for any affecting the identified public lands, on the day of the sale. There will be no reason, the second highest bidder may except applications for the amendment prior registration before the sale date. be considered to purchase the parcel. If of previously filed rights-of-way (ROW) For competitive bidding, the FMV will there are no acceptable bids, a parcel applications or existing authorizations determine the beginning point of oral may remain available for sale at a future to increase the term of the grants in bidding for each parcel. The public sale date in accordance with competitive accordance with 43 CFR 2807.15 and auction will be through sealed and oral sale procedures without further legal 2886.15. The segregated effect will bids. To determine the high bids among Notice. terminate upon issuance of a patent, the qualified bids received, the sealed- publication in the Federal Register of a bids must be received prior to the hour Bid Deposits and Payment termination of the segregation, or on stated in the Notice. The highest bid The BLM’s authorized officer will July 8, 2021, unless extended by the above FMV of the sealed-bids will set declare the high bidder. In accordance BLM Nevada State Director in the starting point for oral bidding on a with 43 CFR 2711.3–1(d), the high accordance with 43 CFR 2711.1–2(d) parcel. The sale parcels that receives no bidder shall submit their bid deposit to prior to the termination date. bids will begin at the established FMV. the ‘‘Department of the Interior—Bureau The sale parcels meet the disposal Bidders who are participating and of Land Management’’, according to bid criteria consistent with Section 203 of attending the oral auction on the day of deposit procedures stated previously. FLPMA and the BLM Ely District the sale are not required to submit a The high bidder shall submit the Record of Decision and Approved sealed-bid but may choose to do so. deposit by 4:00 p.m., Pacific Time on Resource Management Plan (ROD/RMP) Sealed-bid envelopes must be clearly the day of the sale to the BLM, dated August 20, 2008 (Lands and marked on the lower front left corner Collections Officers at BLM, Ely District Realty objectives LR–8, page 66; and with the parcel number and name of the Office, 702 North Industrial Way, Ely, Appendix B, page B–1). An sale, for example: ‘‘N–XXXXX, 3-parcel NV 89301. Failure to submit the 20 Environmental Assessment NV–L060– WPCCRDA Land Sale 2018.’’ Sealed- percent deposit following the close of 2018–0002 was prepared and a Decision bids must include an amount not less the sale under 43 CFR 2711.3–1(d) will Record signed on August 29, 2018. All than 20 percent of the total bid amount result in forfeiture of the parcel. No

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contractual or other rights against the penalties, fines, liabilities, and publication of this Notice if processing United States may accrue until the BLM judgments of any kind or nature arising the application would have no adverse officially accepts the offer to purchase from the past, present, and future acts effect on the marketability of title, or the and the full bid price is paid. or omissions of the patentee, its FMV of the parcel. Encumbrances of In accordance with 43 CFR 2711.3– employees, agents, contractors, or record, appearing in the case file are 1(d), ‘‘The successful bidder . . . shall lessees, or any third-party, arising out of available for review during business submit the remainder of the full bid or in connection with the patentee’s use, hours, 7:30 a.m. to 4:30 p.m., Pacific price prior to the expiration of 180 days occupancy, or operations on the Time, Monday through Friday at the from the date of the sale.’’ Failure to pay patented real property. This Bristlecone Field Office, except during the full purchase price within 180 days indemnification and hold harmless federally recognized holidays. of the sale will result in forfeiture of the agreement includes, but is not limited The parcels are subject to limitations bid deposit. No exceptions will be to, acts and omissions of the patentee, prescribed by law and regulation, and made. The BLM cannot accept the its employees, agents, contractors, or prior to patent issuance, a holder of any remainder of the bid price at any time lessees, or any third party, arising out of ROW within the parcels will be given following the 180th day after the sale. or in connection with the use and/or the opportunity to amend the ROW for Arrangements for electronic fund occupancy of the patented real property conversion to a new term, including transfer to the BLM shall be made a resulting in: (a) Violations of Federal, perpetuity, if applicable, or to an minimum of two weeks prior to final state, and local laws and regulations easement. payment. Failure to meet conditions that are now or may in the future The BLM will notify valid existing established for this sale will void the become, applicable to the real property; ROW holders of their ability to convert sale and any funds received will be (b) Judgments, claims or demands of any their complaint ROW to perpetual ROW forfeited. kind assessed against the United States; or easements. Each valid holder will be In order to qualify for a Federal (c) Costs, expenses, or damages of any notified in writing of their rights and conveyance of title, as set forth in 43 kind incurred by the United States; (d) then must apply for the conversion of CFR 2711.2, the conveyee must be: (1) Releases or threatened releases of solid their current authorization. A citizen of the United States 18 years or hazardous waste(s) and/or hazardous Unless other satisfactory of age or older; (2) A corporation subject substances(s), as defined by Federal or arrangements are approved in advance to the laws of any state or of the United state environmental laws, off, on, into or by a BLM authorized officer, States; (3) A state, state instrumentality, under land, property and other interests conveyance of title shall be through the or political subdivision authorized to of the United States; (e) Other activities use of escrow. Designation of the escrow hold property; or (4) An entity legally by which solid waste or hazardous agent shall be through mutual capable of conveying and holding lands substances or waste, as defined by agreement between the BLM and the or interests therein under the laws of the Federal and state environmental laws prospective patentee, and costs of State of Nevada. Evidence of United are generated, released, stored, used or escrow shall be borne by the prospective States citizenship is a birth certificate, otherwise disposed of on the patented patentee. passport, or naturalization papers. The real property, and any cleanup Requests for all escrow instructions high bidder must submit proof of response, remedial action or other must be received by the Bristlecone citizenship within 25 days from receipt actions related in any manner to said Field Office 30 days before the of the high-bidder letter. Citizenship solid or hazardous substances or wastes; scheduled closing date. There are no documents and Articles of Incorporation or (f) Natural resource damages as exceptions. (as applicable) must be provided to the defined by Federal and state law. This All name changes and supporting BLM–EYDO for each sale. The public covenant shall be construed as running documentation must be received at the land will not be offered for sale prior to with the patented real property, and Bristlecone Field Office 30 days from 60 days from the date this Notice is may be enforced by the United States in the date of the high bidder letter by 4:00 published in the Federal Register. The a court of competent jurisdiction. p.m. Pacific Standard Time. Name patents, if issued, would be subject to No representation, warranty, or changes will not be accepted after that the following terms, conditions, and covenant of any kind, express or date. To submit a name change, the high reservations: implied, is given or made by the United bidder must submit the name change on 1. A reservation for any rights-of-way States, its officers or employees, as to the Certificate of Eligibility form to the thereon for ditches or canals title, access to or from the above BLM, Bristlecone Field Office in constructed by the authority of the described parcels of land, the title of the writing. Certificate of Eligibility forms United States, Act of August 30, 1890 land, whether or to what extent the land are available at the Bristlecone Field (43 U.S.C. 945); may be developed, its physical Office and at the BLM website at: 2. A reservation for all mineral condition, or past, present or future https://www.blm.gov/documents/ deposits in the land so patented, and to uses, and the conveyance of any such nevada/frequently-requested/data/ it, or person authorized by it, the right parcel will not be on a contingency certificate-eligibility. to prospect for, mine, or remove such basis. The buyer is responsible to be The BLM will not sign any documents deposits from the same under applicable aware of all applicable Federal, state, related to 1031 Exchange transactions. law and regulations to be established by and local government policies and The timing for completion of the the Secretary of the Interior are reserved regulations that would affect the subject exchange is the bidder’s responsibility to the United States, together with all lands. It is the buyer’s responsibility to in accordance with Internal Revenue necessary access and exit rights; be aware of existing or prospective uses Service regulations. The BLM is not a 3. The parcels are subject to valid of nearby properties. Lands without party to any 1031 Exchange. existing rights; and access from a public road or highway In order to determine the FMV 4. By accepting this patent, the will be conveyed as such, and future through appraisal, certain extraordinary purchasers/patentees agree to access acquisition will be the assumptions and hypothetical indemnify, defend, and hold the United responsibility of the buyer. conditions are made concerning the States harmless from any costs, The parcels may be subject to land attributes and limitations of the land damages, claims, causes of action, use applications received prior to and potential effects of local regulations

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and policies on potential future land Office of Management and Budget, business information will be so treated uses. Through publication of this Office of Information and Regulatory by the Commission. Notice, the BLM advises that these Affairs, Room 10102 (Docket Library), By order of the Commission. assumptions may not be endorsed or Washington, DC 20503, ATTENTION: Issued: July 2, 2019. approved by units of local Government. Docket Librarian. All comments should Lisa Barton, In accordance with 43 CFR 2711.3– be specific, indicating which part of the 1(f), the BLM may accept or reject any form is objectionable, describing the Secretary to the Commission. or all offers to purchase, or withdraw concern in detail, and including specific [FR Doc. 2019–14458 Filed 7–5–19; 8:45 am] any parcel of land or interest therein suggested revisions or language changes. BILLING CODE 7020–02–P from sale, if, in the opinion of the BLM Copies of any comments should be authorized officer, consummation of the provided to Keith Vaughn, Chief sale would be inconsistent with any Information Officer, U.S. International INTERNATIONAL TRADE law, or for other reasons. Trade Commission, 500 E Street SW, COMMISSION Only written comments will be Washington, DC 20436, who is the [Investigation No. 337–TA–1081] considered properly filed. Commission’s designated Senior Official Before including your address, phone under the Paperwork Reduction Act. Certain LED Lighting Devices, LED number, email address, or other General information concerning the Power Supplies, and Components personal identifying information in your Commission may also be obtained by Thereof; Commission’s Final comment, you should be aware that accessing its website (https:// Determination of No Violation of your entire comment, including your www.usitc.gov). Hearing-impaired Section 337 by the Participating personal identifying information, may individuals are advised that information Respondents, and Final Determination be made publicly available at any time. on this matter can be obtained by of a Violation of Section 337 by a While you can ask us in your comment contacting the TDD terminal on 202– Defaulted Respondent; Issuance of a to withhold your personnel identifying 205–1810. Persons with mobility Limited Exclusion Order and a Cease information from public review, we impairments who will need special and Desist Order; Termination of the cannot guarantee that we will be able to assistance in gaining access to the Investigation do so. Commission should contact the AGENCY: U.S. International Trade Any comments regarding the land sale Secretary at 202–205–2000. Commission. will be reviewed by the BLM Nevada SUPPLEMENTARY INFORMATION: ACTION: Notice. State Director, who may sustain, vacate, Purpose of Information Collection: or modify this realty action. In the The information requested by these SUMMARY: Notice is hereby given that absence of any adverse comments, this forms is for use by the Commission in the U.S. International Trade realty action will become the final connection with collecting petitions for Commission has found no violation of determination of the Department of the temporary duty suspensions or section 337 of the Tariff Act of 1930, as Interior. reductions (‘‘petitions’’) submitted amended, by participating respondents Authority: 43 CFR 2711.1–2(a) and (c). under the American Manufacturing Feit Electric Company, Inc. of Pico Competitiveness Act of 2016, 19 U.S.C. Peter McFadden, Rivera, California and Feit Electric 1332 note (‘‘the Act’’), and public District Manager. Company, Inc. (China) of Xiamen, China comments on petitions filed under the (together, ‘‘Feit’’); Lowe’s Companies, [FR Doc. 2019–14466 Filed 7–5–19; 8:45 am] Act. Section 3 of the Act establishes a Inc. of Mooresville, North Carolina and BILLING CODE 4310–HC–P process for the submission and L G Sourcing, Inc. of North Wilkesboro, consideration of petitions and public North Carolina (together, ‘‘Lowe’s’’); and comments for duty suspensions and Satco Products, Inc. of Brentwood, New INTERNATIONAL TRADE reductions for imported goods in the York (‘‘Satco’’). The Commission has COMMISSION Harmonized Tariff Schedule of the found a violation of section 337 by United States. The petition submission Miscellaneous Tariff Bill (MTB) Petition defaulting respondent MSi Lighting, Inc. period for this cycle is 60 days starting of Boca Raton, Florida (‘‘MSi Lighting’’), System; Submission of Petition and not later than October 15, 2019. Comment Forms for OMB Review and has determined to issue a limited Summary of Proposal: exclusion order and a cease and desist AGENCY: United States International (1) Number of forms submitted: 2. order against that respondent. The (2) Title of forms: MTB Petition Trade Commission. investigation is terminated. System: Petition Submission FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Information Form and MTB Petition Robert Needham, Office of the General System: Comment Submission SUMMARY: The International Trade Counsel, U.S. International Trade Information Form. Commission has submitted request for Commission, 500 E Street SW, approval of a questionnaire to the Office (3) Type of request: New. (4) Frequency of use: Once. Washington, DC 20436, telephone (202) of Management and Budget. This notice (5) Description of affected industry: 708–5468. Copies of non-confidential is being given pursuant to the Domestic firms. documents filed in connection with this Paperwork Reduction Act of 1995. (6) Estimated number of petitioners investigation are or will be available for FOR FURTHER INFORMATION CONTACT: and commenters: Up to 7,000 petitions; inspection during official business Copies of the forms and supporting 5,000 comments. hours (8:45 a.m. to 5:15 p.m.) in the documents may be obtained from (7) Estimated total number of hours to Office of the Secretary, U.S. Jennifer Rohrbach, USITC complete the form: 8 hours for International Trade Commission, 500 E Miscellaneous Tariff Bill Program compiling information and submitting Street SW, Washington, DC 20436, Manager, Office of Operations petitions and 2 hours to draft and telephone (202) 205–2000. General ([email protected] or 202– submit comments. information concerning the Commission 205–2088). Comments about the (8) Information obtained from the may also be obtained by accessing its proposal should be directed to the forms that qualifies as confidential internet server (https://www.usitc.gov).

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The public record for this investigation respect to the entire ’328 patent, the submissions on remedy and the public may be viewed on the Commission’s entire ’890 patent, certain claims of the interest from Good Earth Lighting, Inc.; electronic docket (EDIS) at https:// ’399 patent, and certain claims of the Evolution Lighting, LLC; American edis.usitc.gov. Hearing-impaired ’554 patent. Order No. 44 (May 22, Lighting, Inc.; Jiawei Technology (USA) persons are advised that information on 2018), not reviewed, Notice (June 11, Ltd.; Blue Sky Wireless, LLC; GE this matter can be obtained by 2018); Order No. 53 (June 28, 2018), not Lighting; and Litex Industries, Ltd. contacting the Commission’s TDD reviewed, Notice (July 24, 2018). At the Having examined the record of this terminal on (202) 205–1810. time of the final ID, Complainants investigation, including the ALJ’s final SUPPLEMENTARY INFORMATION: The asserted that Respondents infringed ID, the petitions, responses, and other Commission instituted this investigation claims 7, 8, 17–19, 34, and 35 of the submissions from the parties and the on November 8, 2017, based on a ’399 patent and claims 6 and 12 of the public, the Commission has determined complaint filed by complainants Philips ’559 patent, and that Lowe’s infringed that Complainants have not proven a Lighting North America Corp. and claims 1, 2, 5–7, and 12 of the ’554 violation of section 337 by Respondents. Philips Lighting Holding B.V. (together, patent. ID at 64, 84. Specifically, the Commission has ‘‘Complainants’’). 82 FR 51872. The The ALJ also issued a summary determined that Complainants failed to complaint alleges violations of section determination that Complainants show that any accused product satisfies 337 of the Tariff Act of 1930, as showed that its eW Cove Powercore the ‘‘controller’’ limitation of claims 7 amended, 19 U.S.C. 1337, in the device satisfied the technical prong of and 8 of the ’399 patent and failed to show that any accused product satisfies importation into the United States, the the domestic industry requirement with the ‘‘adjustment circuit’’ limitation of sale for importation, and the sale after respect to claims 1, 2, 5–7 and 12 of the the claims 17–19 of the ’399 patent. importation within the United States ’554 patent. Order No. 55 (Aug. 1, 2018), Consequently, the Commission finds after importation of certain LED devices, not reviewed, Notice (Aug. 17, 2018). that Complainants failed to establish LED power supplies, and components On December 19, 2018, the ALJ issued that any of Respondents’ accused thereof by reason of infringement of one the final ID finding a violation of section products infringes any claim of the ’399 or more claims of U.S. Patent Nos. 6, 337 with respect to the ’399 patent, but patent. The Commission further finds 586,890 (‘‘the ’890 patent’’); 7,038,399 no violation of section 337 with respect that Complainants failed to show that (‘‘the ’399 patent’’); 7,256,554 (‘‘the ’554 to the ’554 and ’559 patents. The ID any of Respondents’ accused products is patent’’); 7,262,559 (‘‘the ’559 patent’’); found, inter alia, that: Respondents’ representative of any other accused and 8,070,328 (‘‘the ’328 patent’’). Id. products infringe claims 7, 8, and 17– 19 of the ’399 patent; that certain Lowe’s product. Finally, the Commission has The notice of investigation named the determined to take no position on the following respondents: Edgewell products infringed claims 1, 2, 5, 6, 7, and 12 of the ’554 patent but were not ID’s findings that Complainants satisfied Personal Care Brands, LLC of Shelton, the economic prong of the domestic Connecticut (‘‘Edgewell’’); Feit; Lowe’s; shown to be imported or sold by a named respondent; that no products industry requirement through MSi Lighting; Satco; Topaz Lighting investments under section 337(a)(3)(A) Corp. of Holtsville, New York were shown to infringe the ’559 patent; that no asserted claim was shown to be and (B) with respect to the ’399 patent, (‘‘Topaz’’); and Wangs Alliance and the ID’s findings that Complainants Corporation d/b/a/WAC Lighting Co. of invalid; and that Complainants showed a domestic industry with respect to all satisfied the economic prong of the Port Washington, New York, and WAC domestic industry requirement through Lighting (Shanghai) Co. Ltd. of three remaining asserted patents. On April 12, 2019, the Commission investments under section 337(a)(3)(C) Shanghai, China (together, ‘‘WAC’’). Id. with respect to the ’554 patent. The Office of Unfair Import determined to review the following issues: With respect to defaulted respondent Investigations is not a party to the MSi Lighting, Complainants request a investigation. Id. 1. The ID’s infringement findings for the remedy only with respect to the ’399 The Commission subsequently ‘‘controller’’ limitation of recited in claims 7 patent. Under section 337(g)(1) (19 and 8 of the ’399 patent, and the ID’s terminated the investigation with U.S.C. 1337(g)(1)), the Commission respect to Topaz and WAC based on infringement findings for the ‘‘adjustment circuit’’ limitation recited in claims 17–19 of presumes that the allegations in the settlement agreements. Order No. 9 (Jan. the ’399 patent; complaint are true, including the 8, 2018), not reviewed, Notice (Jan. 16, 2. the ID’s findings regarding whether allegations that MSi Lighting infringes 2018); Order No. 42 (May 2, 2018), not products are representative of other products claims 1, 2, 4, and 5 of the ’399 patent reviewed, Notice (May 18, 2018). The with respect to its infringement findings for and that Complainants satisfied the Commission also found MSi Lighting in claims 17–19 of the ’399 patent and for domestic industry requirement with default for failing to respond to the claims 6 and 12 of the ’559 patent; and respect to the ’399 patent. The complaint and notice of investigation. 3. the ID’s findings on the economic prong Commission has determined that the Order No. 20 (Jan. 31, 2018), not of the domestic industry requirement. appropriate form of relief in this reviewed, Notice (Feb. 26, 2018). Notice, 84 FR 16280–82 (Apr. 18, investigation is a limited exclusion Additionally, the Commission amended 2019). The Commission also sought order and a cease and desist order the notice of investigation to remove briefing on whether the record shows prohibiting MSi Lighting from respondent Edgewell, which was not that the accused products satisfy the importing, selling, offering for sale, named in the complaint but was ‘‘controller’’ and ‘‘adjustment circuit’’ marketing, advertising, distributing, erroneously included in the notice of limitations of the ’399 patent, as well as offering for sale, transferring (except for investigation. Notice (Aug. 6, 2018). briefing on remedy, the public interest, exportation), or soliciting U.S. agents or Accordingly, at the time of the final ID, and bonding. Id. at 16282. The distributors of imported LED devices, the remaining participating respondents Commission received written LED power supplies, and components were Feit, Lowe’s, and Satco submissions from Complainants and that infringe claims 1, 2, 4, and 5 of the (collectively, ‘‘Respondents’’). Respondents on April 26, 2019, and ’399 patent. Id. The Commission has The Commission also terminated the reply written submissions from further determined that the public investigation based on a partial Complainants and Respondent on May interest factors enumerated in section withdrawal of the complaint with 3, 2019. The Commission also received 337(g)(1) (19 U.S.C. 1337(g)(1)) do not

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preclude the issuance of the limited issuance. The Commission has also address one or more of the following exclusion order and cease and desist notified the Secretary of the Treasury four points: order. Finally, the Commission has and Customs and Border Protection of 1. Evaluate whether the proposed determined that the bond for the order. The investigation is hereby collection of information is necessary importation during the period of terminated. for the proper performance of the Presidential review shall be in the The authority for the Commission’s functions of the agency, including amount of three percent of the entered determination is contained in section whether the information will have value of the imported subject articles of 337 of the Tariff Act of 1930, as practical utility; MSi Lighting. amended (19 U.S.C. 1337), and in part 2. Evaluate the accuracy of the The parties also have several pending 210 of the Commission’s Rules of agency’s estimate of the burden of the motions and requests. On February 6, Practice and Procedure (19 CFR part proposed collection of information, 2019, Complainants moved to amend 210).By order of the Commission. including the validity of the the complaint and notice of methodology and assumptions used; Issued: July 1, 2019. investigation to reflect a corporate name 3. Evaluate whether and if so how the change, as Philips Lighting North Lisa Barton, quality, utility, and clarity of the American Corporation changed its name Secretary to the Commission. information to be collected can be to Signify North America Corporation [FR Doc. 2019–14406 Filed 7–5–19; 8:45 am] enhanced; and and Philips Lighting Holding B.V. BILLING CODE 7020–02–P 4. Minimize the burden of the changed its name to Signify Holding collection of information on those who B.V. No party opposed the motion. The are to respond, including through the Commission grants Complainants’ DEPARTMENT OF JUSTICE use of appropriate automated, motion for good cause shown. The term electronic, mechanical, or other ‘‘Complainants’’ refers to both Signify [OMB Number 1123–0013] technological collection techniques or North America Corporation and Signify other forms of information technology, Holding B.V., as well as their previous Agency Information Collection e.g., permitting electronic submission of names, Philips Lighting North American Activities; Proposed eCollection responses. Corporation and Philips Lighting eComments Requested; United States Overview of This Information Holding B.V. Victims of State Sponsored Terrorism Collection On May 7, 2019, Respondents filed a Fund Application Form letter stating that Complainants 1. Type of Information Collection: inappropriately attached a version of an AGENCY: Criminal Division, U.S. Extension of a currently approved expert witness statement that contains Department of Justice. collection. stricken material and that was not ACTION: 60-Day notice. 2. The Title of the Form/Collection: admitted into evidence. The Application Form for the U.S. Victims Commission clarifies that it has relied SUMMARY: The U.S. Department of of State Sponsored Terrorism Fund. upon only the version of the expert Justice, Criminal Division, United States 3. The agency form number, if any, witness statement that was admitted Victims of State Sponsored Terrorism and the applicable component of the into evidence. Fund, will be submitting the following Department sponsoring the collection: On May 23, 2019, Respondents filed information collection request to the Form number: N/A. The U.S. Victims of a letter requesting to conduct post- Office of Management and Budget State Sponsored Terrorism Fund, U.S. hearing discovery concerning alleged (OMB) for review and approval in Department of Justice, Criminal perjury based on statements that accordance with the Paperwork Division. occurred nine months earlier during the Reduction Act of 1995. 4. Affected public who will be asked evidentiary hearing on August 20, 2018. DATES: Comments are encouraged and or required to respond, as well as a brief On May 31, 2019, Complainants filed a will be accepted for 60 days until abstract: letter in response. The Commission September 6, 2019. The U.S. Victims of State Sponsored denies Respondents’ tardy request for FOR FURTHER INFORMATION CONTACT: Terrorism Fund (‘‘USVSST Fund’’) was post-hearing discovery for failure to Additional comments especially on the established to provide compensation to establish an adequate basis for their estimated public burden or associated certain individuals who were injured as requested relief. response time, suggestions, or need for a result of acts of international terrorism Accordingly, the Commission has a copy of the proposed information by a state sponsor of terrorism. Under determined that Complainants have collection instrument with instructions, the Justice for United States Victims of failed to show a violation of section 337 or additional information, should be State Sponsored Terrorism Act (‘‘Act’’), by Respondents with respect to the ’399, directed to either the Special Master, 34 U.S.C. 20144(c), an eligible claimant ’559, and ’554 patents. The Commission United States Victims of State is (1) a U.S. person, as defined in 34 has also determined to issue a limited Sponsored Terrorism Fund, or the Chief, U.S.C. 20144(j)(8), with a final judgment exclusion order and a cease and desist Program Management and Training issued by a U.S. district court under order against MSi Lighting pursuant to Unit, Money Laundering and Asset state or federal law against a state section 337(g)(1) (19 U.S.C. 1337(g)(1)). Recovery Section, Criminal Division, sponsor of terrorism and arising from an The Commission’s determinations are U.S. Department of Justice, 950 act of international terrorism, for which explained more fully in the Pennsylvania Avenue NW, Washington, the foreign state was found not immune accompanying Opinion. All other DC 20530–0001, telephone (202) 353– under provisions of the Foreign findings in the ID under review that are 2046. Sovereign Immunities Act, codified at consistent with the Commission’s 28 U.S.C. 1605A or 1605(a)(7) (as such determinations are affirmed. SUPPLEMENTARY INFORMATION: Written section was in effect on January 27, The Commission’s notice, orders, and comments and suggestions from the 2008); (2) a U.S. person, as defined in opinion were delivered to the President public and affected agencies concerning 34 U.S.C. 20144(j)(8), who was taken and to the United States Trade the proposed collection of information and held hostage from the United States Representative on the day of their are encouraged. Your comments should Embassy in Tehran, Iran, during the

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period beginning November 4, 1979, Dated: July 1, 2019. the Vice President & General Counsel, at and ending January 20, 1981, or the Melody Braswell, (202) 295–1500. Questions may be sent spouse and child of that U.S. person at Department Clearance Officer for PRA, U.S. by electronic mail to FR_NOTICE_ that time, and who is also identified as Department of Justice. [email protected]. a member of the proposed class in case [FR Doc. 2019–14380 Filed 7–5–19; 8:45 am] ACCESSIBILITY: LSC complies with the number 1:00–CV–03110 (EGS) of the BILLING CODE 4410–14–P Americans with Disabilities Act and United States District Court for the Section 504 of the 1973 Rehabilitation District of Columbia; or (3) the personal Act. Upon request, meeting notices and representative of a deceased individual LEGAL SERVICES CORPORATION materials will be made available in in either of those two categories. alternative formats to accommodate The information collected from the Sunshine Act Meeting Notice individuals with disabilities. USVSST Fund’s Application Form will Individuals needing other be used to determine whether DATE AND TIME: The Legal Services accommodations due to disability in applicants are eligible for compensation Corporation’s Finance Committee will order to attend the meeting in person or from the USVSST Fund, and if so, the meet telephonically on July 15, 2019. telephonically should contact Katherine amount of compensation to be awarded. The meeting will commence at 3 p.m., Ward, at (202) 295–1500 or FR_ The Application Form consists of parts EDT, and will continue until the [email protected], at least related to eligibility and compensation. conclusion of the Committee’s agenda. 2 business days in advance of the The eligibility parts seek the LOCATION: John N. Erlenborn meeting. information required by the Act to Conference Room, Legal Services If a request is made without advance determine whether a claimant is eligible Corporation Headquarters, 3333 K Street notice, LSC will make every effort to for payment from the USVSST Fund, NW, Washington DC 20007. accommodate the request but cannot including information related to: PUBLIC OBSERVATION: Members of the guarantee that all requests can be Participation in federal lawsuits against public who are unable to attend in fulfilled. a state sponsor of terrorism under the person but wish to listen to the public Dated: July 3, 2019. Foreign Sovereign Immunities Act; proceedings may do so by following the Katherine Ward, being taken and held hostage at the U.S. telephone call-in directions provided Embassy in Tehran, Iran, from the below. Executive Assistant to the Vice President for Legal Affairs and General Counsel. period beginning November 4, 1979, CALL-IN DIRECTIONS FOR OPEN SESSIONS: [FR Doc. 2019–14515 Filed 7–3–19; 11:15 am] and ending January 20, 1981; or being • Call toll-free number: 1–866–451– spouses and children of such hostages. 4981; BILLING CODE 7050–01–P The compensation parts seek the • When prompted, enter the information required by the Justice for following numeric pass code: Victims of State Sponsored Terrorism 5907707348 LIBRARY OF CONGRESS Act to determine the amount of • When connected to the call, please compensation for which the claimant is immediately ‘‘MUTE’’ your telephone. Copyright Royalty Board eligible. Specifically, the compensation Members of the public are asked to parts seek information regarding any keep their telephones muted to [Docket No. 19–CRB–0009 AA] payments from sources other than the eliminate background noises. To avoid Determination and Allocation of Initial USVSST Fund that the claimant disrupting the meeting, please refrain Administrative Assessment To Fund received, is entitled to receive, or is from placing the call on hold if doing so Mechanical Licensing Collective scheduled to receive, as a result of the will trigger recorded music or other act of international terrorism by a state sound. From time to time, the Chair may AGENCY: Copyright Royalty Board, sponsor of terrorism and the amount of solicit comments from the public. Library of Congress. compensatory damages awarded the STATUS OF MEETING: Open. ACTION: Notice announcing claimant in a final judgment. MATTERS TO BE CONSIDERED: commencement of Initial 5. An estimate of the total number of 1. Approval of agenda Administrative Assessment proceeding applicants and the amount of time 2. Discussion with LSC Management and requesting Petitions to Participate. estimated for an average applicant to regarding recommendations for respond: It is estimated that 700 LSC’s Fiscal year 2021 budget SUMMARY: The Copyright Royalty Judges respondents may complete the request (Judges) announce commencement of a Application Form. It is estimated that • Jim Sandman, President proceeding to determine the initial respondents will complete the paper • Carol Bergman, Vice President for administrative assessment that digital form or the electronic form in an Government Relations & Public music providers and any significant average of 1.5 hours. Affairs nonblanket licensees must pay to fund 6. An estimate of the total public 3. Discussion with the LSC Inspector the operations of the Mechanical burden (in hours) associated with the General regarding OIG’s Fiscal Year Licensing Collective. The Judges also set collection: The estimated public burden 2021 budget request the date by which the Mechanical associated with this collection is 1,050 • Jeffery Schanz, Inspector General Licensing Collective and the Digital hours. • David Maddox, Assistant Inspector Licensee Coordinator must, and other If additional information is required General for Management and eligible participants may, file a Petition contact: Melody Braswell, Department Evaluation to Participate and the accompanying Clearance Officer, United States 4. Public comment $150 filing fee. A rule relating to the Department of Justice, Justice 5. Consider and act on other business Determination and Allocation of Initial Management Division, Policy and 6. Consider and act on adjournment of Administrative Assessment to Fund Planning Staff, Two Constitution meeting Mechanical Licensing Collective is Square, 145 N Street NE, Suite 3E.405A, CONTACT PERSON FOR INFORMATION: published elsewhere in this issue of the Washington, DC 20530. Katherine Ward, Executive Assistant to Federal Register.

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DATES: Petitions to Participate and the an Initial Administrative Assessment scheduling, after receiving Petitions to filing fee are due on or before July 23, that digital music providers and any Participate. 37 CFR 355(g)(1). 2019. significant nonblanket licensees must Dated: June 27, 2019. ADDRESSES: Each Petition to Participate pay to fund the operations of the MLC. Jesse M. Feder, See 37 CFR 355.2(a), 355.6 (Jul. 8, must include the proceeding docket Chief Copyright Royalty Judge. number, 19–CRB–0009 IAA. 2019).1 Section 355.2(a) requires the [FR Doc. 2019–14090 Filed 7–5–19; 8:45 am] Participants must file using the online Judges to commence the first proceeding form on the CRB’s electronic filing no later than July 8, 2019, by BILLING CODE 1410–72–P application, eCRB, at https:// publication of a notice in the Federal app.crb.gov/, unless they do not have Register seeking Petitions to Participate. access to the internet, in which case The regulations require the participation NATIONAL SCIENCE FOUNDATION they may file using any of the following of the MLC and the Digital Licensee Sunshine Act Meeting; National methods: Coordinator (DLC) in the proceeding Science Board U.S. mail: Copyright Royalty Board, and permit the participation of P.O. Box 70977, Washington, DC 20024– copyright owners, digital music The National Science Board, pursuant 0977; or providers, and significant nonblanket to NSF regulations (45 CFR part 614), Overnight service (only USPS Express licensees. 37 CFR 355.2(c)–(d). the National Science Foundation Act, as Mail is acceptable): Copyright Royalty The Judges hereby announce amended (42 U.S.C. 1862n–5), and the Board, P.O. Box 70977, Washington, DC commencement of the proceeding, Government in the Sunshine Act (5 20024–0977; or direct the MLC and the DLC to file U.S.C. 552b), hereby gives notice of the Commercial courier: Address package Petitions to Participate, and request scheduling of a teleconference for the to: Copyright Royalty Board, Library of Petitions to Participate from any other transaction of National Science Board Congress, James Madison Memorial eligible participant with a significant business, as follows: Building, LM–403, 101 Independence interest in the determination of the TIME AND DATE: Closed teleconference of Avenue SE, Washington, DC 20559– Initial Administrative Assessment. the Committee on Strategy of the 6000. Deliver to: Congressional Courier Petitions To Participate National Science Board, to be held Acceptance Site, 2nd Street NE and D Friday, July 12, 2019 from 4–5 p.m. Street NE, Washington, DC; or Parties filing Petitions to Participate EDT. Hand delivery: Library of Congress, must comply with the requirements of James Madison Memorial Building, § 355.2(e) of the Judges’ regulations. PLACE: This meeting will be held by teleconference at the National Science LM–401, 101 Independence Avenue SE, How To Submit Petitions To Participate Washington, DC 20559–6000. Foundation, 2415 Eisenhower Avenue, Instructions: Unless submitting Petitioners must submit a filing fee of Alexandria, VA 22314. online, claimants must submit an $150 to the Copyright Royalty Board STATUS: Closed. original, two paper copies, and an with their Petition to Participate, or the MATTERS TO BE CONSIDERED: Chair’s electronic version on a CD. All Judges will reject the petition. THE opening remarks; Discuss initial submissions must include the Copyright COPYRIGHT ROYALTY BOARD WILL development of NSF’s Fiscal Year 2021 Royalty Board name and docket NOT ACCEPT CASH. budget submission to the Office of number. All submissions received will Parties filing online through eCRB Management and Budget. must fill out an online form (instead of be posted without change on eCRB CONTACT PERSON FOR MORE INFORMATION: including any personal information filing a document) and pay the filing fee, if applicable, by credit card using Point of contact for this meeting is: provided. Kathy Jacquart, 2415 Eisenhower Docket: For access to the docket, go to the payment portal on eCRB. Any party without access to the internet must pay Avenue, Alexandria, VA 22314. eCRB, the Copyright Royalty Board’s Telephone: (703) 292–7000. electronic filing and case management the filing fee by check or money order made payable to the ‘‘Copyright Royalty You may find meeting information system, at https://app.crb.gov/, and and updates (time, place, subject matter search for docket number 19–CRB–0009 Board’’ and mailed or delivered with its filed paper documents and CD as or status of meeting) at https:// AA. www.nsf.gov/nsb/meetings/ described in the ADDRESSES section FOR FURTHER INFORMATION CONTACT: notices.jsp#sunshine. Anita Blaine, CRB Program Specialist, above. If a check is returned for lack of by telephone at (202) 707–7658 or email sufficient funds, the Judges will dismiss Chris Blair, at [email protected]. the corresponding Petition to Executive Assistant to the National Science Participate. Board Office. SUPPLEMENTARY INFORMATION: The Any participant that is an individual Copyright Royalty Judges (Judges) have [FR Doc. 2019–14540 Filed 7–3–19; 4:15 pm] may represent herself or himself. All promulgated regulations (published BILLING CODE 7555–01–P other participants must be represented elsewhere in this issue of the Federal by counsel. In accordance with § 303.2 Register) governing new proceedings to of the Judges’ regulations, only attorneys determine the reasonableness of, and NATIONAL SCIENCE FOUNDATION who are members of the bar in one or allocate responsibility to fund, the more states or the District of Columbia Sunshine Act Meeting; National operating budget of the Mechanical and in good standing will be allowed to Science Board Licensing Collective (MLC), as directed represent parties before the Copyright by the Orrin G. Hatch-Bob Goodlatte The National Science Board’s ad hoc Royalty Judges. Music Modernization Act (MMA), The Judges will address further Committee on Nominating the NSB Public Law 115–264, 132 Stat. 3676 procedural matters, including Class of 2018–2024, pursuant to NSF (Oct. 11, 2018). 17 U.S.C. regulations (45 CFR part 614), the 115(d)(7)(D)(vii) and 801(b)(8) (2018). 1 All citations to the Judges regulations in this National Science Foundation Act, as The result of the first such proceeding notice are to new or amended regulations that are amended (42 U.S.C. 1862n–5), and the will be a determination by the Judges of published in this issue of the Federal Register. Government in the Sunshine Act (5

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U.S.C. 552b), hereby gives notice of the 1:00 p.m.–3:00 p.m.: NuScale Design that relate solely to internal personnel scheduling of a teleconference for the Certification Application Chapters 3, 6, rules and practices of the ACRS, and transaction of National Science Board 15, 20 and Stability Topical Report information the release of which would business, as follows: (continued) (Open/Closed)—The constitute a clearly unwarranted TIME AND DATE: July 12, 2019 from Committee will have briefings by and invasion of personal privacy]. 12:30–2:30 p.m. EDT. discussion with representatives of the 1:00 p.m.–6:00 p.m.: Preparation of NRC staff and NuScale regarding the ACRS Reports/Retreat (Open/Closed)— PLACE: This meeting will be held by subject chapters and stability topical The Committee will continue its teleconference at the National Science report. [Note: A portion of this session discussion of proposed ACRS reports Foundation, 2415 Eisenhower Avenue, may be closed in order to discuss and and retreat items. [Note: A portion of Alexandria, VA 22314. protect information designated as this session may be closed in order to STATUS: Closed. proprietary, pursuant to 5 U.S.C. discuss and protect information MATTERS TO BE CONSIDERED: Chair’s 552b(c)(4)]. designated as proprietary, pursuant to 5 welcome and remarks: Development of 3:15 p.m.–6:00 p.m.: Preparation of U.S.C 552b(c)(4)]. [Note: A portion of recommended candidate slate of the ACRS Reports/Retreat (Open/Closed)— this meeting may be closed pursuant to NSB 2020–2026 term for presentation to The Committee will continue its 5 U.S.C. 552b(c)(2) and (6) to discuss the full Board. discussion of proposed ACRS reports organizational and personnel matters CONTACT PERSON FOR MORE INFORMATION: and retreat items. [Note: A portion of that relate solely to internal personnel Point of contact for this meeting is: Brad this session may be closed in order to rules and practices of the ACRS, and Gutierrez, [email protected], 703–292– discuss and protect information information the release of which would 7000. Meeting information and updates designated as proprietary, pursuant to 5 constitute a clearly unwarranted may be found at http://www.nsf.gov/ U.S.C. 552b(c)(4)]. [Note: A portion of invasion of personal privacy.] this meeting may be closed pursuant to nsb/notices.jsp#sunshine. Please refer to Friday, July 12, 2019, Conference Room 5 U.S.C. 552b(c)(2) and (6) to discuss the National Science Board website at T2D10 www.nsf.gov/nsb for general organizational and personnel matters 8:30 a.m.–12:00 p.m.: Preparation of information. that relate solely to internal personnel rules and practices of the ACRS, and ACRS Reports/Retreat (Open/Closed)— Chris Blair, information the release of which would The Committee will continue its Executive Assistant to the NSB Office. constitute a clearly unwarranted discussion of proposed ACRS reports [FR Doc. 2019–14541 Filed 7–3–19; 4:15 pm] invasion of personal privacy]. and retreat items. [Note: A portion of BILLING CODE 7555–01–P this session may be closed in order to Thursday, July 11, 2019, Conference discuss and protect information Room T2D10 designated as proprietary, pursuant to 5 NUCLEAR REGULATORY 8:30 a.m.–10:00 a.m.: Future ACRS U.S.C 552b(c)(4)]. [Note: A portion of COMMISSION Activities/Report of the Planning and this meeting may be closed pursuant to Procedures Subcommittee and 5 U.S.C. 552b(c)(2) and (6) to discuss 665th Meeting of the Advisory Reconciliation of ACRS Comments and organizational and personnel matters Committee on Reactor Safeguards Recommendations/Retreat (Open/ that relate solely to internal personnel (ACRS); Revised Closed)—The Committee will hear rules and practices of the ACRS, and discussion of the recommendations of information the release of which would In accordance with the purposes of the Planning and Procedures constitute a clearly unwarranted Sections 29 and 182b of the Atomic Subcommittee regarding items proposed invasion of personal privacy]. Energy Act (42 U.S.C. 2039, 2232b), the for consideration by the Full Committee 1:00 p.m.–6:00 p.m.: Preparation of Advisory Committee on Reactor during future ACRS meetings and ACRS Reports/Retreat (Open/Closed)— Safeguards (ACRS) will hold meetings retreat items. [Note: A portion of this The Committee will continue its on July 10–12, 2019, Two White Flint session may be closed in order to discussion of proposed ACRS reports North, 11545 Rockville Pike, ACRS discuss and protect information and retreat items. [Note: A portion of Conference Room T2D10, Rockville, MD designated as proprietary, pursuant to 5 this session may be closed in order to 20852. U.S.C. 552b(c)(4)]. [Note: A portion of discuss and protect information this meeting may be closed pursuant to designated as proprietary, pursuant to 5 Wednesday, July 10, 2019, Conference 5 U.S.C. 552b(c)(2) and (6) to discuss U.S.C 552b(c)(4)]. [Note: A portion of Room T2D10 organizational and personnel matters this meeting may be closed pursuant to 8:30 a.m.–8:35 a.m.: Opening that relate solely to internal personnel 5 U.S.C. 552b(c)(2) and (6) to discuss Remarks by the ACRS Chairman rules and practices of the ACRS, and organizational and personnel matters (Open)—The ACRS Chairman will make information the release of which would that relate solely to internal personnel opening remarks regarding the conduct constitute a clearly unwarranted rules and practices of the ACRS, and of the meeting. invasion of personal privacy]. information the release of which would 8:35 a.m.–12:00 p.m.: NuScale Design 10:15 a.m.–12:00 p.m.: Preparation of constitute a clearly unwarranted Certification Application Chapters 3, 6, ACRS Reports/Retreat (Open/Closed)— invasion of personal privacy]. 15, 20 and Stability Topical Report The Committee will continue its Procedures for the conduct of and (Open/Closed)—The Committee will discussion of proposed ACRS reports participation in ACRS meetings were have briefings by and discussion with and retreat items. [Note: A portion of published in the Federal Register on representatives of the NRC staff and this session may be closed in order to December 7, 2018 (83 FR 26506). In NuScale regarding the subject chapters discuss and protect information accordance with those procedures, oral and stability topical report. [Note: A designated as proprietary, pursuant to 5 or written views may be presented by portion of this session may be closed in U.S.C. 552b(c)(4)]. [Note: A portion of members of the public, including order to discuss and protect information this meeting may be closed pursuant to representatives of the nuclear industry. designated as proprietary, pursuant to 5 5 U.S.C. 552b(c)(2) and (6) to discuss Persons desiring to make oral statements U.S.C. 552b(c)(4)]. organizational and personnel matters should notify Quynh Nguyen, Cognizant

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ACRS Staff (Telephone: 301–415–5844, Dated: July 1, 2019. please contact the NRC’s Public Email: [email protected]), 5 days Russell E. Chazell, Document Room (PDR) reference staff at before the meeting, if possible, so that Federal Advisory Committee Management 1–800–397–4209, 301–415–4737, or by appropriate arrangements can be made Officer, Office of the Secretary. email to [email protected]. The to allow necessary time during the [FR Doc. 2019–14398 Filed 7–5–19; 8:45 am] ADAMS accession number for each meeting for such statements. In view of BILLING CODE 7590–01–P document referenced in this document the possibility that the schedule for (if that document is available in ACRS meetings may be adjusted by the ADAMS) is provided the first time that Chairman as necessary to facilitate the NUCLEAR REGULATORY a document is referenced. conduct of the meeting, persons COMMISSION • NRC’s PDR: You may examine and planning to attend should check with [Docket No. 72–17; NRC–2017–0178] purchase copies of public documents at the Cognizant ACRS staff if such the NRC’s PDR, Room O1–F21, One rescheduling would result in major Portland General Electric Company; White Flint North, 11555 Rockville inconvenience. The bridgeline number Trojan Independent Spent Fuel Storage Pike, Rockville, Maryland 20852. for the meeting is 866–822–3032, Installation passcode 8272423#. FOR FURTHER INFORMATION CONTACT: Jean Thirty-five hard copies of each AGENCY: Nuclear Regulatory Trefethen, Office of Nuclear Material presentation or handout should be Commission. Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, provided 30 minutes before the meeting. ACTION: Environmental assessment and DC 20555–0001; telephone: 301–415– In addition, one electronic copy of each finding of no significant impact; 0867, email: [email protected]. presentation should be emailed to the issuance. Cognizant ACRS Staff one day before SUPPLEMENTARY INFORMATION: meeting. If an electronic copy cannot be SUMMARY: The U.S. Nuclear Regulatory provided within this timeframe, Commission (NRC) is considering the I. Introduction presenters should provide the Cognizant renewal of Special Nuclear Materials The NRC is considering a license ACRS Staff with a CD containing each (SNM) License SNM–2509 for the renewal request for SNM–2509 for the presentation at least 30 minutes before Trojan Nuclear Plant Independent Spent Trojan specifically-licensed ISFSI the meeting. Fuel Storage Installation (ISFSI) (Trojan located in Columbia County, Oregon In accordance with Subsection 10(d) ISFSI) located in Columbia County, (ADAMS Accession No. ML17086A039). of Public Law 92–463 and 5 U.S.C. Oregon. The NRC has prepared an The applicant, Portland General Electric 552b(c), certain portions of this meeting environmental assessment (EA) for this Company (PGE), is requesting to renew may be closed, as specifically noted proposed license renewal in accordance license SNM–2509 for the Trojan ISFSI above. Use of still, motion picture, and with its regulations. Based on the EA, for an additional 40-year period. The television cameras during the meeting the NRC has concluded that a finding of current license expired on March 31, may be limited to selected portions of no significant impact (FONSI) is 2019. PGE submitted the license the meeting as determined by the appropriate. The NRC also is conducting renewal application in accordance with Chairman. Electronic recordings will be a safety evaluation of the proposed paragraphs 72.42(b) and (c) of title 10 of permitted only during the open portions license renewal. the Code of Federal Regulations (10 of the meeting. DATES: The EA and FONSI referenced in ACRS meeting agendas, meeting CFR). Accordingly, the NRC considers this document are available on July 8, transcripts, and letter reports are the license in timely renewal. If 2019. available through the NRC Public approved, PGE would be able to Document Room at pdr.resource@ ADDRESSES: Please refer to Docket ID continue to possess and store spent nrc.gov, or by calling the PDR at 1–800– NRC–2017–0178 when contacting the nuclear fuel at the Trojan ISFSI in 397–4209, or from the Publicly NRC about the availability of accordance with the requirements in 10 Available Records System (PARS) information regarding this document. CFR part 72, ‘‘Licensing Requirements component of NRC’s document system You may obtain publicly-available for the Independent Storage of Spent (ADAMS) which is accessible from the information related to this document Nuclear Fuel, High-Level Radioactive NRC website at http://www.nrc.gov/ using any of the following methods: Waste, and Reactor-Related Greater than reading-rm/adams.html or http:// • Federal Rulemaking website: Go to Class C Waste.’’ www.nrc.gov/reading-rm/doc- https://www.regulations.gov/ and search The NRC staff has prepared a final EA collections/#ACRS/. for Docket ID NRC–2017–0178. Address as part of its review of this license Video teleconferencing service is questions about NRC dockets to Jennifer renewal request in accordance with the available for observing open sessions of Borges; telephone: 301–287–9127; requirements of 10 CFR part 51, ACRS meetings. Those wishing to use email: [email protected]. For ‘‘Environmental Protection Regulations this service should contact Ms. Paula technical questions, contact the for Domestic Licensing and Related Dorm, ACRS Audio Visual Technician individual listed in the FOR FURTHER Regulatory Functions.’’ Based on the (301–415–7799), between 7:30 a.m. and INFORMATION CONTACT section of this final EA, the NRC has determined that 3:45 p.m. (ET), at least 10 days before document. an environmental impact statement the meeting to ensure the availability of • NRC’s Agencywide Documents (EIS) is not required for this proposed this service. Individuals or Access and Management System action and a FONSI is appropriate. The organizations requesting this service (ADAMS): You may obtain publicly- NRC is also conducting a safety will be responsible for telephone line available documents online in the evaluation of the proposed license charges and for providing the ADAMS Public Documents collection at amendment pursuant to 10 CFR part 72 equipment and facilities that they use to https://www.nrc.gov/reading-rm/ and the results will be documented in establish the video teleconferencing adams.html. To begin the search, select a separate Safety Evaluation Report link. The availability of video ‘‘ADAMS Public Documents’’ and then (SER). If PGE’s request is approved, the teleconferencing services is not select ‘‘Begin Web-based ADAMS NRC will issue the license renewal guaranteed. Search.’’ For problems with ADAMS, following publication of this final EA

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and FONSI and the SER in the Federal from continued normal operations. For the Nuclear Regulatory Commission. Register. Occupational dose estimates associated Kathryn M. Brock, II. Final Environmental Assessment with the proposed action and continued Acting Director, Division of Fuel Cycle Safety, Safeguards, and Environmental Review, Summary normal operation and maintenance of the ISFSI are expected to be at ALARA Office of Nuclear Material Safety and PGE is requesting to renew the Trojan levels and within the limits of 10 CFR Safeguards. specifically-licensed ISFSI for a 40-year 20.1201. Therefore, the NRC staff has [FR Doc. 2019–14397 Filed 7–5–19; 8:45 am] period. The NRC has assessed the determined that pursuant to 10 CFR BILLING CODE 7590–01–P potential environmental impacts of the proposed action and alternatives to the 51.31, preparation of an EIS is not proposed action, including license required for the proposed action, and NUCLEAR REGULATORY renewal for an additional 20-year term, pursuant to 10 CFR 51.32, a FONSI is COMMISSION appropriate. shipment of spent fuel to an offsite [NRC–2019–0139] facility, and the no-action alternative. Furthermore, the NRC staff The results of the NRC’s environmental determined that this license renewal Expiration Term for Certificates of review can be found in the final EA request does not have the potential to Compliance for Transportation (ADAMS Accession No. ML19058A264). cause effects on historic properties, Packages The NRC staff performed its assuming those were present; therefore, AGENCY: Nuclear Regulatory environmental review in accordance in accordance with 36 CFR 800.3(a)(1), Commission. with the requirements in 10 CFR part no consultation is required under ACTION: Basis document; issuance. 51. In conducting the environmental Section 106 of the National Historic review, the NRC considered information Preservation Act. The NRC staff, SUMMARY: in the license renewal application; The U.S. Nuclear Regulatory however, reached out to and informed communications and consultation with Commission (NRC) is noticing the the Oregon State Historic Preservation the Oregon State Historic Preservation availability of the ‘‘Basis Document for Office; the Chehalis, Grand Ronde, and Officer (SHPO) via letter dated August Expiration Term for Certificates of Yakama Native American Tribes; the 17, 2017 (ADAMS Accession No. Compliance for Transportation Portland Field Office of the U.S. Fish ML17214A072) and the Chehalis, Grand Packages’’ (Basis Document). The Basis and Wildlife Service; and the Oregon Ronde and Yakama Native American Document details the NRC’s analysis Health Authority. Tribes of its determination via letters and development of a programmatic Approval of PGE’s proposed license dated August 29, 2017 (ADAMS basis for the 5-year expiration term for renewal request would allow the 34 Accession Nos. ML17219A064, certificates of compliance for Holtec International Multipurpose ML17219A065, and ML17219A066, transportation packages. Canisters to continue to remain in the respectively). The Grand Ronde tribe DATES: The basis document is available Trojan ISFSI for an additional 40 years. responded that there are recorded on July 8, 2019. Specifically, the estimated annual dose cultural resources in the vicinity of the ADDRESSES: Please refer to Docket ID to the nearest potential member of the Trojan ISFSI (ADAMS Accession No. NRC–2019–0139 when contacting the public from ISFSI activities is 0.023 ML17284A237); however, NRC staff NRC about the availability of mSv/yr (2.3 mrem/yr) (PGE, 2017a), expects there to be no impact to these information regarding this document. which is below the 0.25 mSv/yr (25 resources as the licensee has no plans You may obtain publicly-available mrem/yr) limit specified in 10 CFR information related to this document for construction activities and routine 72.104(a) and the 1 mSv/yr (100 mrem/ using any of the following methods: operations are largely passive. The NRC yr) limit in 10 CFR 20.1301(a)(1). • Federal Rulemaking Website: Go to Furthermore, PGE maintains a radiation staff also consulted with the U.S. Fish https://www.regulations.gov/ and search protection program for the ISFSI in and Wildlife Service (FWS) in for Docket ID NRC–2019–0139. Address accordance with 10 CFR part 20 to accordance with Section 7 of the questions about docket IDs in ensure that radiation doses are as low as Endangered Species Act. Regulations.gov to Jennifer Borges; is reasonable achievable (ALARA). III. Finding of No Significant Impact telephone: 301–287–9127; email: Accordingly, no significant radiological [email protected]. For technical or non-radiological impacts are Based on its review of the proposed questions, contact the individual listed expected to result from approval of the action in the EA, in accordance with the in the FOR FURTHER INFORMATION license renewal request, and the requirements in 10 CFR part 51, the CONTACT section of this document. • proposed action would not significantly NRC has concluded that the proposed NRC’s Agencywide Documents contribute to cumulative impacts at the action, renewal of NRC Special Nuclear Access and Management System Trojan site. Additionally, there would Materials License No. SNM–2509 for the (ADAMS): You may obtain publicly- be no disproportionately high and Trojan ISFSI located in Columbia available documents online in ADAMS adverse impacts on minority and low- County, Oregon, will not significantly Public Documents collection at https:// income populations. affect the quality of the human www.nrc.gov/reading-rm/adams.html. In its license renewal request, PGE is To begin the search, select ‘‘Begin Web- environment. Therefore, the NRC has proposing no changes in how it handles based ADAMS Search.’’ For problems determined, pursuant to 10 CFR 51.31, or stores spent fuel at the Trojan ISFSI. with ADAMS, please contact the NRC’s Approval of the proposed action would that preparation of an EIS is not Public Document Room (PDR) reference not result in any new construction or required for the proposed action and a staff at 1–800–397–4209, 301–415–4737, expansion of the existing ISFSI footprint finding of no significant impacts is or by email to [email protected]. beyond that previously approved. The appropriate. The Basis Document, ‘‘Basis Document ISFSI is a largely passive facility that Dated at Rockville, Maryland, this 1st day for Expiration Term for Certificates of produces no liquid or gaseous effluents. of July 2019. Compliance for Transportation No significant radiological or Packages,’’ and the OIG audit report, nonradiological impacts are expected ‘‘OIG–17–A–21, Audit of NRC’s

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Oversight for Issuing Certificates of term, a 5-year expiration term is FOR FURTHER INFORMATION CONTACT: Compliance for Radioactive Material appropriate for certificates of David Cullison, NRC Clearance Officer, Packages,’’ are available in ADAMS compliance for transportation packages, U.S. Nuclear Regulatory Commission, under Accession Nos. ML19140A059 and has documented this determination Washington, DC 20555–0001; telephone: and ML17228A217, respectively. in a Basis Document. As is further 301–415–2084; email: • NRC’s PDR: You may examine and explained in the Basis Document, a [email protected]. purchase copies of public documents at longer expiration term could provide SUPPLEMENTARY INFORMATION: the NRC’s PDR, Room O1–F21, One equivalent protection for public health White Flint North, 11555 Rockville and safety, and could potentially save I. Obtaining Information and Pike, Rockville, Maryland 20852. some burden for some NRC certificate Submitting Comments FOR FURTHER INFORMATION CONTACT: holders. The NRC has determined, A. Obtaining Information Torre Taylor, Office of Nuclear Material however, that the efficiency in Please refer to Docket ID NRC–2019– Safety and Safeguards, U.S. Nuclear maintaining consistency between NRC, 0049 when contacting the NRC about Regulatory Commission, Washington, U.S. Department of Transportation, and the availability of information for this DC 20555–0001; telephone: 301–415– foreign competent authority expiration action. You may obtain publicly- 7900, email: [email protected]. dates in certificates outweighs any available information related to this SUPPLEMENTARY INFORMATION: burden saved. Moreover, NRC action by any of the following methods: regulations afford flexibility in selecting I. Background • Federal Rulemaking Website: Go to an appropriate term and certificate https://www.regulations.gov/ and search The Office of the Inspector General holders may request a longer renewal for Docket ID NRC–2019–0049. A copy (OIG) conducted an audit of the NRC’s term on a case-by-case basis, with of the collection of information and oversight of issuing certificates of appropriate supporting documentation. compliance for radioactive material related instructions may be obtained Dated at Rockville, Maryland, this 2nd day packages and spent fuel storage casks. without charge by accessing Docket ID of July 2019. NRC–2019–0049 on this website. The OIG documented its findings in a • report entitled, OIG–17–A–21, ‘‘Audit of For the Nuclear Regulatory Commission. NRC’s Agencywide Documents NRC’s Oversight for Issuing Certificates John B. McKirgan, Access and Management System of Compliance for Radioactive Material Chief, Spent Fuel Licensing Branch, Division (ADAMS): You may obtain publicly- Packages,’’ dated August 16, 2017. The of Spent Fuel Management, Office of Nuclear available documents online in the OIG recommended, in part, that the Materials Safety and Safeguards. ADAMS Public Documents collection at NRC staff conduct an analysis to [FR Doc. 2019–14463 Filed 7–5–19; 8:45 am] https://www.nrc.gov/reading-rm/ develop a regulatory and technical basis BILLING CODE 7590–01–P adams.html. To begin the search, select for the expiration term for the ‘‘ADAMS Public Documents’’ and then certificates of compliance for select ‘‘Begin Web-based ADAMS transportation packages. NUCLEAR REGULATORY Search.’’ For problems with ADAMS, COMMISSION please contact the NRC’s Public II. Discussion [NRC–2019–0049] Document Room (PDR) reference staff at Certificates of compliance are issued 1–800–397–4209, 301–415–4737, or by pursuant to title 10 of the Code of Information Collection: Security email to [email protected]. A copy Federal Regulations, part 71, ‘‘Packaging Acknowledgment and Termination of the collection of information and and Transportation of Radioactive Statement related instructions may be obtained Material.’’ The current 5-year expiration without charge by accessing ADAMS term for these certificates was not AGENCY: Nuclear Regulatory Accession No. ML19165A243. The established by rule, but by agency Commission. supporting statement and Security practice, and the 5-year term was not ACTION: Notice of submission to the Acknowledgment and Termination documented in a technical evaluation. Office of Management and Budget; Statement are available in ADAMS In response to OIG’s recommendation, request for comment. under ADAMS Accession No. the NRC conducted an analysis of the ML19165A245. regulatory and technical bases for the SUMMARY: The U.S. Nuclear Regulatory • NRC’s PDR: You may examine and expiration term for certificates of Commission (NRC) has recently purchase copies of public documents at compliance and documented its submitted a proposed collection of the NRC’s PDR, Room O1–F21, One conclusions in the Basis Document. The information to the Office of White Flint North, 11555 Rockville Basis Document provides the NRC’s Management and Budget (OMB) for Pike, Rockville, Maryland 20852. analysis, including reviews of the NRC’s review. The information collection is • NRC’s Clearance Officer: A copy of statutory authority, regulations, agency entitled, ‘‘Security Acknowledgment the collection of information and related guidance, and current process for and Termination Statement.’’ instructions may be obtained without review of applications for transportation DATES: Submit comments by August 7, charge by contacting the NRC’s package design approvals. The NRC also 2019. Comments received after this date Clearance Officer, David Cullison, included information on its evaluation will be considered if it is practical to do Office of the Chief Information Officer, of expiration terms in other NRC so, but the Commission is able to ensure U.S. Nuclear Regulatory Commission, program areas in which certificates are consideration only for comments Washington, DC 20555–0001; telephone: issued, stakeholder interactions, the received on or before this date. 301–415–2084; email: impact of changing expiration terms for ADDRESSES: Submit comments directly [email protected]. transportation certificates of compliance to the OMB reviewer at: OMB Office of related to foreign competent authorities, Information and Regulatory Affairs B. Submitting Comments and factors to consider in the NRC’s (3150–XXXX), Attn: Desk Officer for the The NRC cautions you not to include evaluation. Nuclear Regulatory Commission, 725 identifying or contact information in The NRC has determined that, absent 17th Street NW, Washington, DC 20503; comment submissions that you do not a request from a vendor for a different email: [email protected]. want to be publicly disclosed in your

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comment submission. All comment acknowledgment and accept their ‘‘Begin Web-based ADAMS Search.’’ For submissions are posted at https:// continuing security responsibility. problems with ADAMS, please contact www.regulations.gov/ and entered into Dated at Rockville, Maryland, this 2nd day the NRC’s Public Document Room (PDR) ADAMS. Comment submissions are not of July 2019. reference staff at 1–800–397–4209, 301– routinely edited to remove identifying For the Nuclear Regulatory Commission. 415–4737, or by email to pdr.resource@ or contact information. Kristen E. Benney, nrc.gov. Revision 4 to RG 1.8 and the If you are requesting or aggregating regulatory analysis may be found in comments from other persons for Acting NRC Clearance Officer, Office of the Chief Information Officer. ADAMS under Accession Nos. submission to the OMB, then you ML19101A395 and ML16091A271, should inform those persons not to [FR Doc. 2019–14448 Filed 7–5–19; 8:45 am] respectively. include identifying or contact BILLING CODE 7590–01–P • NRC’s PDR: You may examine and information that they do not want to be purchase copies of public documents at publicly disclosed in their comment NUCLEAR REGULATORY the NRC’s PDR, Room O1–F21, One submission. Your request should state COMMISSION White Flint North, 11555 Rockville that comment submissions are not Pike, Rockville, Maryland 20852. routinely edited to remove such [NRC–2018–0023] Regulatory guides are not information before making the comment copyrighted, and NRC approval is not submissions available to the public or Qualification and Training of Personnel required to reproduce them. for Nuclear Power Plants entering the comment into ADAMS. FOR FURTHER INFORMATION CONTACT: II. Background AGENCY: Nuclear Regulatory Brian Tindell, Office of Nuclear Reactor Commission. Regulation, telephone: 301–415–2026, Under the provisions of the ACTION: Regulatory guide; issuance. email: [email protected] and Steve Paperwork Reduction Act of 1995 (44 Burton, Office of Nuclear Regulatory U.S.C. Chapter 35), the NRC recently SUMMARY: The U.S. Nuclear Regulatory Research, telephone: 301–415–0038, submitted a request for renewal of an Commission (NRC) is issuing Revision 4 email: [email protected]. Both existing collection of information to to Regulatory Guide (RG) 1.8, are staff of the U.S. Nuclear Regulatory OMB for review entitled, ‘‘Security ‘‘Qualification and Training of Commission, Washington, DC 20555– Acknowledgment and Termination Personnel for Nuclear Power Plants.’’ 0001. Statement.’’ The NRC hereby informs This RG describes methods acceptable SUPPLEMENTARY INFORMATION: potential respondents that an agency to the NRC staff for complying with may not conduct or sponsor, and that a those portions of the Commission’s I. Discussion person is not required to respond to, a regulations associated with the collection of information unless it The NRC is issuing a revision to an selection, qualifications, and training for existing guide in the NRC’s ‘‘Regulatory displays a currently valid OMB control nuclear power plant personnel. Revision number. Guide’’ series. This series was 4 updates the RG with additional developed to describe and make The NRC published a Federal experience gained since Revision 3 was Register notice with a 60-day comment available to the public information issued in 2000 by endorsing American regarding methods that are acceptable to period on this information collection on National Standards Institute/American April 8, 2019 (84 FR 13976). the NRC staff for implementing specific Nuclear Society (ANSI/ANS)-3.1–2014, parts of the agency’s regulations, 1. The title of the information ‘‘Selection, Qualification, and Training collection: Security Acknowledgment techniques that the NRC staff uses in of Personnel for Nuclear Power Plants,’’ evaluating specific issues or postulated and Termination Statement. with exceptions and clarifications. 2. OMB approval number: An OMB events, and data that the NRC staff DATES: control number has not yet been Revision 4 to RG 1.8 is available needs in its review of applications for assigned to this proposed information on July 8, 2019. permits and licenses. collection. ADDRESSES: Please refer to Docket ID Revision 4 of RG 1.8 was issued with 3. Type of submission: New. NRC–2018–0023 when contacting the a temporary identification of Draft 4. The form number if applicable: NRC about the availability of Regulatory Guide, DG–1329. This NRC Form 176. information regarding this document. revision updates the RG with additional 5. How often the collection is required You may obtain publicly-available experience gained through inspections or requested: On Occasion. information related to this document since Revision 3 was issued in 2000. It 6. Who will be required or asked to using any of the following methods: endorses American National Standards respond: NRC Employees, Licensees and • Federal Rulemaking Website: Go to Institute/American Nuclear Society contractors. https://www.regulations.gov/ and search (ANSI/ANS)-3.1–2014, ‘‘Selection, 7. The estimated number of annual for Docket ID NRC–2018–0023. Address Qualification, and Training of Personnel responses: 400. questions about NRC docket IDs in for Nuclear Power Plants,’’ with certain 8. The estimated number of annual Regulations.gov to Jennifer Borges; exceptions and clarifications that are respondents: 400. telephone: 301–287–9127; email: listed in the Staff Regulatory Guidance 9. An estimate of the total number of [email protected]. For technical section of the RG. hours needed annually to comply with questions, contact the individuals listed II. Additional Information the information collection requirement in the FOR FURTHER INFORMATION or request: 80. CONTACT section of this document. The NRC published a notice of the 10. Abstract: The NRC Form 176, • NRC’s Agencywide Documents availability of DG–1329 in the Federal ‘‘Security Acknowledgment and Access and Management System Register on February 12, 2018 (83 FR Termination Statement’’ is completed (ADAMS): You may obtain publicly- 6053), for a 60-day public comment by employees, licensees and contractors available documents online in the period. The public comment period in connection with the termination of ADAMS Public Documents collection at closed on April 13, 2018. Public their access authorization/security https://www.nrc.gov/reading-rm/ comments on DG–1329 and the staff clearance granted by the NRC and to adams.html. To begin the search, select responses to the public comments are

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available under ADAMS Accession No. PLACE: Commissioners’ Conference Secretary, Washington, DC 20555 (301– ML19101A396. Room, 11555 Rockville Pike, Rockville, 415–1969), or by email at Maryland. III. Congressional Review Act [email protected] or Tyesha.Bush@ STATUS: Public and Closed. nrc.gov. This RG is a rule as defined in the MATTERS TO BE CONSIDERED: The NRC is holding the meetings Congressional Review Act (5 U.S.C. Week of July 8, 2019 under the authority of the Government 801–808). However, the U.S. Office of in the Sunshine Act, 5 U.S.C. 552b. Management and Budget has not found There are no meetings scheduled for it to be a major rule as defined in the the week of July 8, 2019. Dated at Rockville, Maryland, this 3rd day Congressional Review Act. of July 2019. Week of July 15, 2019—Tentative For the Nuclear Regulatory Commission. IV. Backfitting and Issue Finality There are no meetings scheduled for Denise L. McGovern, This RG describes methods acceptable the week of July 15, 2019. Policy Coordinator, Office of the Secretary. to the staff of the NRC for complying Week of July 22, 2019—Tentative [FR Doc. 2019–14537 Filed 7–3–19; 4:15 pm] with those portions of the Commission’s There are no meetings scheduled for BILLING CODE 7590–01–P regulations associated with the the week of July 22, 2019. selection, qualifications, and training for nuclear power plant personnel. Issuance Week of July 29, 2019—Tentative of this RG does not constitute There are no meetings scheduled for RAILROAD RETIREMENT BOARD backfitting as defined in section 50.109 the week of July 29, 2019. of title 10 of the Code of Federal Sunshine Act Meetings Regulations (10 CFR) (the Backfit Rule) Week of August 5, 2019—Tentative and would not otherwise be There are no meetings scheduled for TIME AND DATE: 1:30 p.m., July 16, 2019. inconsistent with the issue finality the week of August 5, 2019. provisions in 10 CFR part 52. As PLACE: 8th Floor Board Conference discussed in the ‘‘Implementation’’ Week of August 12, 2019—Tentative Room, 844 North Rush Street, Chicago, section of the RG, the NRC has no Wednesday, August 14, 2019 Illinois 60611. intention to impose this RG on holders 9:00 a.m. Hearing on Early Site Permit STATUS: The initial part of this meeting of operating licenses or combined will be open to the public. The rest of licenses. for the Clinch River Nuclear Site: Section 189a. of the Atomic Energy the meeting will be closed to the public. This RG may be applied to Act Proceeding (Public Meeting) MATTERS TO BE CONSIDERED: applications for operating licenses, (Contact: Mallecia Sutton: 301–415– combined licenses, early site permits, 0673) Portions Open to the Public and certified design rules docketed by This hearing will be webcast live at the NRC as of the date of issuance of the the Web address—http://www.nrc.gov/. (1) Albany Office recommendations/ RG, as well as future applications alternatives CONTACT PERSON FOR MORE INFORMATION: submitted after the issuance of the RG. For more information or to verify the (2) Status update from Wisconsin Such action would not constitute status of meetings, contact Denise Central Working Group backfitting as defined in the Backfit McGovern at 301–415–0681 or via email Rule or otherwise be inconsistent with (3) Status update from Office of at [email protected]. The the issue finality provisions in 10 CFR Legislative Affairs on the state of the schedule for Commission meetings is part 52, inasmuch as such applicants or budget subject to change on short notice. potential applicants are not within the The NRC Commission Meeting (4) Procedure for submitting items for scope of entities protected by the Backfit Schedule can be found on the internet the Board Docket Rule or the issue finality provisions in at: http://www.nrc.gov/public-involve/ 10 CFR part 52. Portions Closed to the Public public-meetings/schedule.html. Dated at Rockville, Maryland, this 2nd day The NRC provides reasonable (1) Status update on internal personnel of July 2019. accommodation to individuals with matter For the Nuclear Regulatory Commission. disabilities where appropriate. If you CONTACT PERSON FOR MORE INFORMATION: Harriet Karagiannis, need a reasonable accommodation to Stephanie Hillyard, Secretary to the Acting Chief, Regulatory Guidance and participate in these public meetings or Board, Phone No. 312–751–4920. Generic Issues Branch, Division of need this meeting notice or the Engineering, Office of Nuclear Regulatory transcript or other information from the Dated: July 2, 2019. Research. public meetings in another format (e.g., Stephanie Hillyard, [FR Doc. 2019–14441 Filed 7–5–19; 8:45 am] braille, large print), please notify Secretary to the Board. BILLING CODE 7590–01–P Kimberly Meyer-Chambers, NRC [FR Doc. 2019–14501 Filed 7–3–19; 11:15 am] Disability Program Manager, at 301– 287–0739, by videophone at 240–428– BILLING CODE 7905–01–P NUCLEAR REGULATORY 3217, or by email at Kimberly.Meyer- COMMISSION [email protected]. Determinations on requests for reasonable accommodation [NRC–2019–0001] will be made on a case-by-case basis. Members of the public may request to Sunshine Act Meetings receive this information electronically. If you would like to be added to the TIME AND DATE: Weeks of July 8, 15, 22, distribution, please contact the Nuclear 29, August 5, 12, 2019. Regulatory Commission, Office of the

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SECURITIES AND EXCHANGE clarifying the governance regarding the because it is being replaced by the new COMMISSION use of default management tools and default management tools described steps. Related to ICE Clear Europe’s below, the proposed rule change would [Release No. 34–86259; File No. SR–ICEEU– 2019–003] default management tools, the proposed also remove existing Rule 905(c), which rule change would clarify the currently allows ICE Clear Europe to Self-Regulatory Organizations; ICE requirements and uses of ICE Clear make a forced allocation of positions in Clear Europe Limited; Notice of Filing Europe’s Guaranty Fund. Moreover, the the Defaulter’s portfolio. of Amendment No. 1 and Order proposed rule change would, for CDS ii. Initial CDS Auctions Granting Accelerated Approval of Contracts, establish a cooling-off period, Proposed Rule Change, as Modified by modify the requirements regarding In the event of a clearing member Amendment No. 1, To Revise the ICE withdrawal by CDS clearing members, default, proposed revised Rule 905(b)(i) Clear Europe Clearing Rules and modify the requirements regarding would permit ICE Clear Europe to run Regarding Default Management, clearing service termination. Finally, the one or more Initial CDS Auctions for the Recovery and Wind-Down for CDS proposed rule change would make CDS Contract Category with respect to Contracts, and Default Auction certain other clarifications and the remaining portfolio of the 7 Procedures improvements to the Rules described Defaulter. below. ICE Clear Europe would conduct July 1, 2019. Initial CDS Auctions in accordance with A. Revisions To Default Management Part 1 of the new CDS Default Auction I. Introduction Tools and Steps Procedures. The CDS Default Auction On April 29, 2019, ICE Clear Europe i. Introduction Procedures would allow ICE Clear Limited (‘‘ICE Clear Europe’’ or the Europe to break the portfolio of the ‘‘Clearing House’’) filed with the In general, the amendments would Defaulter into one or more lots, each of Securities and Exchange Commission apply to the CDS Contract Category which would be auctioned separately. (‘‘Commission’’), pursuant to Section certain existing default management, CDS Clearing Members would be 19(b)(1) of the Securities Exchange Act recovery, and wind-down rules that required to bid for each lot in a of 1934 (‘‘Act’’) 1 and Rule 19b–4 currently apply only to the F&O minimum amount to be determined by thereunder,2 a proposal to modify Contract Category.6 Thus, under the ICE Clear Europe pursuant to the certain provisions of the ICE Clear proposed rule change, instead of requirements set forth in the CDS Europe Clearing Rules (‘‘Rules’’) and responding to a CDS Clearing Member Default Auction Procedures. The CDS clearing procedures relating to default default through the use of forced Default Auction Procedures would management, Clearing House recovery allocation, as required under ICE Clear permit a CDS Clearing Member to and wind-down for CDS Contracts, and Europe’s current rules applicable to the transfer or outsource its minimum bid to adopt certain related default auction CDS Contract Categories, ICE Clear requirement to an affiliated CDS procedures for CDS Contracts (‘‘CDS Europe would be permitted to use Clearing Member, and similarly would Default Auction Procedures’’).3 The default auctions, reduced gains permit a CDS Clearing Member to proposed rule change was published in distribution, and partial tear-up. The aggregate its own minimum bid the Federal Register on May 17, 2019.4 proposed rule change would also requirement with that of its affiliated The Commission did not receive harmonize the default management CDS Clearing Members. The CDS comments on the proposed rule change. tools across the F&O and CDS Contract Default Auction Procedures would not On June 5, 2019, ICE Clear Europe filed Categories to ensure that such tools are apply a minimum bid requirement Amendment No. 1 to the proposed rule utilized consistently across the different where the bid would be in breach of change.5 The Commission is publishing categories and, for the purpose of applicable law or the Rules, such as if this notice to solicit comment on consistency with the proposed changes a self-referencing CDS Contract would Amendment No. 1 from interested described herein, make clarifying and arise from an accepted bid, or where ICE persons and, for the reasons discussed conforming changes, add new defined Clear Europe, after written notification below, is approving the proposed rule terms, and update current definitions that a minimum bid requirement is change, as modified by Amendment No. and cross-references throughout the inappropriate in the current 1, on an accelerated basis. Rules. The proposed rule change would circumstances, reasonably determines effect these changes by revising Rule that the requirement should not apply. II. Description of the Proposed Rule 905, which establishes the overall The CDS Default Auction Procedures Change default management tools and would permit Customers of CDS The proposed rule change would procedures available to the Clearing Clearing Members (including a amend the Rules relating to Clearing House to terminate and close out Sponsored Principal invited by ICE House default management tools and contracts of a Defaulter. In addition, Clear Europe to participate in an Initial steps, including by adopting the CDS CDS Auction) to bid, either directly or Default Auction Procedures and 6 ICE Clear Europe adopted its rules relating to indirectly through a CDS Clearing Clearing House recovery and wind-down for the Member. If bidding directly in an F&O and FX Contract Categories in 2014. See 1 15 U.S.C. 78s(b)(1). Exchange Act Release No. 71450 (Jan. 31, 2014), 79 auction, the CDS Default Auction 2 17 CFR 240.19b–4. FR 7250 (Feb. 6, 2014) (SR–ICEEU–2014–03) (‘‘F&O Procedures would require that the 3 Capitalized terms used but not defined herein Recovery Rule Amendments’’). After adoption of Customer (in this instance, a ‘‘Direct have the meanings specified in the Rules, clearing the F&O Recovery Rule Amendments, certain Participating Customer’’): (i) Confirm a procedures, or CDS Default Auction Procedures. provisions of ICE Clear Europe’s rules continued to 4 Securities Exchange Act Release No. 34–85848 apply to CDS Contracts as they were in effect prior Clearing Member will clear any of its (May 13, 2019), 84 FR 22530 (May 17, 2019) (SR– to the adoption of the F&O Recovery Rule resulting transactions; (ii) deposit a ICEEU–2019–003) (‘‘Notice’’). Amendments. The proposed rule change would minimum of Ö7.5 million (which would 5 ICE Clear Europe filed Amendment No. 1 to add eliminate these provisions currently applicable only generally be applied by ICE Clear a confidential Exhibit 3 to the filing associated with to CDS Contracts and CDS Clearing Members, and the proposed rule change. Amendment No. 1 did instead, the Rules would generally apply to CDS Europe in the same manner as CDS not make any changes to the substance of the filing Clearing Members in the same way as they apply or the text of the proposed rule change. to F&O Clearing Members. 7 See Notice, 84 FR at 22531.

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Clearing Members’ Guaranty Fund subordinate tranches based on a If a Secondary CDS Auction is Contributions, including being subject specified formula. Thus, ICE Clear unsuccessful for any lot, the CDS to ‘‘juniorization,’’ as described below); Europe would pay remaining default Default Auction Procedures would and (iii) enter into an agreement with costs after an auction first by using permit ICE Clear Europe to run another ICE Clear Europe pursuant to which the contributions of CDS Clearing Members Secondary CDS Auction for that lot, and Direct Participating Customer would who fail to bid, then by using to repeat this process as necessary. agree to the auction terms and contributions of those who bid Pursuant to proposed Rule 914(o), confidentiality requirements as they uncompetitively, and finally, if however, if ICE Clear Europe invokes apply to Direct Participating Customers. necessary, by using contributions by reduced gains distributions, the last The CDS Default Auction Procedures those who bid competitively. Under the attempt at a Secondary CDS Auction (if would require that the auction for each CDS Default Auction Procedures, the needed) would occur on the last day of lot would be conducted as a modified same juniorization approach would the five-business-day reduced gains Dutch auction. This would mean that, apply to assessment contributions from distribution period. On that last day, the where there were multiple winning CDS Clearing Members and the required Secondary CDS Auction for each lot bidders, all would pay or receive the minimum deposit made by a Clearing would be successful if it results in a auction clearing price. If an auction for Member when Direct Participating price that is within the default resources any lot or lots failed, as determined in Customers bid in an auction. for such lot. ICE Clear Europe would accordance with the default auction also be able to determine, for a procedures, the CDS Default Auction iii. Secondary CDS Auction Secondary CDS Auction on that last Procedures would allow ICE Clear If one or more Initial CDS Auctions day, that an auction for a lot would be Europe to conduct subsequent auctions, were not fully successful in closing out partially filled. With respect to any lot provided certain criteria set forth in the the defaulting CDS Clearing Member’s that is not successfully auctioned, in CDS Default Auction Procedures were CDS portfolio, proposed Rule whole or in part, ICE Clear Europe met. 905(d)(i)(B) and the CDS Default would be permitted to proceed to partial Under Rule 908, all available default Auction Procedures would permit ICE tear-up under Rule 915, as described resources (including pre-funded CDS Clear Europe to conduct a Secondary below. Guaranty Fund Contributions of CDS CDS Auction with respect to the iv. F&O Default Auction Clearing Members, assessment Defaulter’s remaining portfolio.8 contributions of CDS Clearing Members, The proposed rule change would also In that event, the Secondary CDS and ICE Clear Europe contributions to clarify in Rule 908(b)–(d) that, where a Auction would be conducted pursuant the CDS Guaranty Fund) could be used Default Auction is held in respect of the to Part 2 of the CDS Default Auction to pay the cost of an Initial CDS F&O Contract Category, any applicable Procedures. The Secondary CDS Auction. juniorization approach (made by Auction would use the same modified A portion of each CDS Clearing modifying Rule 908) would be set out by Dutch auction format used for Initial Member’s Guaranty Fund Contributions the Clearing House by Circular.9 The CDS Auctions, with all winning bidders would be allocated to the auction cost proposed rule change would make paying or receiving the auction clearing of each lot. Proposed Rule 908(i) would certain other drafting clarifications, price. Under the CDS Default Auction subject the Guaranty Fund and corrections, and conforming changes to Procedures, a Secondary CDS Auction Assessment Contributions of non- Rule 908 as well. The proposed rule for a specific lot would be deemed defaulting CDS Clearing Members to change would also amend Rule 908(f) to successful if it resulted in a price for the ‘‘juniorization’’ using a defined default eliminate the requirement that ICE Clear lot that was within ICE Clear Europe’s auction priority set out in the CDS Europe provide notice of relevant remaining CDS default resources Default Auction Procedures based on default amount calculations to all available for the lot. Direct Participating the competitiveness of their bids. affected Clearing Members via Customers would be permitted to Specifically, the proposed approach publication of a Circular, and instead participate in Secondary CDS Auctions would divide the CDS Guaranty Fund allow ICE Clear Europe to notify under the same conditions as Initial into three tranches, with the lowest affected Clearing Members through CDS Auctions, with one exception. tranche used first to pay for any means that ICE Clear Europe deems Unlike in an Initial CDS Auction, A remaining default costs after an auction. appropriate under the facts and Direct Participating Customer in a This lowest tranche would consist of circumstances at the time. This change Secondary CDS Auction could bid contributions of CDS Clearing Members is intended to allow ICE Clear Europe directly without need for a minimum that failed to participate or failed to bid greater flexibility with respect to the deposit. in the required amount in the relevant manner of notice to affected Clearing Under proposed revised Rule 908(i), auction. The second, or subordinate, Members in what could be quickly in the case of a Secondary CDS Auction, tranche would include contributions of changing circumstances. CDS Clearing Members whose bids were ICE Clear Europe would apply all less competitive than a defined remaining CDS default resources. ICE v. Partial Tear-Up threshold, as set forth in proposed Rule Clear Europe would subject Guaranty The proposed rule change would add 908(i), based on the auction clearing Fund and Assessment Contributions of partial tear-up as an additional default price. The final, or senior, tranche non-defaulting CDS Clearing Members, remedy for all Contract Categories, with would include contributions of CDS to the extent remaining, to one difference between CDS and F&O Clearing Members whose bids would be ‘‘juniorization’’ in a Secondary CDS Contracts.10 ICE Clear Europe would be competitive as compared to a second Auction, similar to that described above permitted to use partial tear-up for F&O defined threshold, also as set forth in for initial default auctions, in Contracts immediately after a failed proposed Rule 908(i). For CDS Clearing accordance with the secondary auction Default Auction, but would be able to Members who bid in the band between priority set forth in the CDS Default use partial tear-up for CDS Contracts the two thresholds, the CDS Default Auction Procedures. Auction Procedures would allocate 9 See Notice, 84 FR at 22532. contributions between the senior and 8 See Notice, 84 FR at 22532. 10 See Notice, 84 FR at 22532.

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only after a failed Secondary CDS Category, as set forth in existing Rule other Clearing Members. ICE Clear Auction. 914, and extend the proposed modified Europe would determine haircuts Pursuant to proposed Rule 915(b), in rules so that they apply to both the F&O independently on each day of reduced a partial tear-up, ICE Clear Europe Contract Category and the CDS Contract gains distribution for CDS Contracts and would terminate positions of non- Category.11 Currently, these provisions would apply them separately for each defaulting Clearing Members and only apply to the F&O Contract margin account for each Contributor. Sponsored Principals that exactly offset Categories. The proposed rule change The proposed rule change would also those in the Defaulter’s remaining would rename these provisions as make changes to Rule 914(i) to clarify portfolio, that is, positions in the ‘‘reduced gains distribution’’ and make the obligations of the Clearing House identical contracts and in the same them applicable to all contract upon termination of reduced gains aggregate notional amount (‘‘Tear-Up categories. distribution, as well as certain Positions’’). ICE Clear Europe would For CDS Contracts specifically, the clarifications to the provisions in Rule terminate Tear-Up Positions of all non- proposed rule change would only allow 914(i) as they apply to F&O Contracts. defaulting Clearing Members and ICE Clear Europe to use reduced gains Moreover, a related proposed Sponsored Principals that have such distribution for CDS Contracts after (i) amendment to Rule 906(a) would clarify positions, on a pro rata basis, across there has been an unsuccessful Initial that the calculation of a net sum on both house and customer origin CDS Auction, (ii) ICE Clear Europe has default would treat the payment or accounts. Within the customer origin exhausted its remaining available return of variation margin or mark-to- account of a non-defaulting Clearing default resources (including assessment market margin as having been Member, Tear-Up Positions of contributions paid up to that point), and successfully and fully made even if customers would be terminated on a pro (iii) ICE Clear Europe has called for reduced gains distributions have been rata basis. Where ICE Clear Europe has Assessment Contributions and such applied, and therefore the defaulter entered into hedging transactions contributions have become due and would not pay or receive such variation relating to the defaulter’s positions that payable. Moreover, proposed Rule margin or mark-to-market margin in the would not be subject to tear-up, ICE 914(o) would only allow ICE Clear net sum on default. Clear Europe could, at its discretion, Europe to invoke reduced gains offer to assign or transfer those distribution for CDS Contracts for up to vii. Recoveries From Defaulting Clearing transactions to Clearing Members with five consecutive business days. Under Members related Tear-Up Positions. revised Rule 914(b), ICE Clear Europe The proposed rule change would add ICE Clear Europe would determine a would determine at the close of to Rule 907 a new subsection (c), which termination price for all Tear-Up business on each business day in this would address the Clearing House’s Positions in accordance with proposed five-day period whether the conditions authority to seek recoveries from a Rule 915(f). For CDS Contracts, the for reduced gains distributions persist. defaulting Clearing Member on its own termination price would be the last Reduced gains distribution would behalf and on behalf of Clearing established end-of-day mark-to-market allow ICE Clear Europe to reduce Members, including through setoff or settlement price. For F&O Contracts, the payment of variation, or mark-to-market, legal process.12 The proposed rule termination price would be the last gains that would otherwise be owed to change would also revise Rule 907 to established exchange end-of-day Clearing Members. While using reduced state ICE Clear Europe’s obligations with settlement price, subject to a specified gains distribution, ICE Clear Europe respect to seeking recoveries from a fallback price procedure. Under would attempt a Secondary CDS defaulting Clearing Member where the proposed Rule 915(c), ICE Clear Europe Auction. If ICE Clear Europe were able Guaranty Fund Contributions of non- would set out in a published Circular to conduct a successful Secondary CDS defaulting Clearing Member have been the date and time as of which partial Auction, the day of that successful applied, and provide that in such case tear-up would occur. For the CDS auction or the preceding business day (if ICE Clear Europe will exercise the same Contract Category, tear-up would occur ICE Clear Europe so determines) would degree of care in enforcement and contemporaneously with the be the last day for reduced gains collection of any claims against the determination of the termination price distribution. If ICE Clear Europe is defaulter as it exercises with respect to at end of day. Accordingly, the unable to conduct a successful its own assets that are not subject to termination price would equal the Secondary CDS Auction by the end of allocation to Clearing Members and current mark-to-market or other the five business day reduced gains others. The proposed rule change would applicable settlement value as distribution period, ICE Clear Europe also remove certain contrary provisions determined pursuant to the applicable would proceed to conduct a partial tear- of the Rules to the effect that ICE Clear exchange or ICE Clear Europe end-of- up under Rule 915 as of the close of Europe has no obligation to pursue day settlement price process, and would business on such fifth business day. recoveries from defaulters, such as be satisfied by application of mark-to- Pursuant to proposed Rule 914(p), if existing Rule 914(m). market margin posted, or that would reduced gains distribution would apply have been posted but for reduced gains to CDS Contracts on any day, the net viii. Delay of Outbound Variation distribution, under Rule 915(e). Thus, amount owed on such day to each Margin ICE Clear Europe would owe no Margin Account of each Contributor The proposed rule change would additional amount in connection with (meaning a Clearing Member or extend the provisions of existing Rule the tear-up. Sponsored Principal that is not in 110(f) to the CDS Contract Category.13 default) that would otherwise be Rule 110(f) would permit ICE Clear vi. Reduced Gains Distributions entitled to receive mark-to-market Europe to delay making a variation To provide an additional secondary margin or other payments in respect of margin or mark-to-market margin default management action for the CDS such account would be subject to a payment, solely on an intra-day basis, Contract Category, the proposed rule percentage haircut, based on the where a Clearing Member or Sponsored change would modify ICE Clear incoming mark-to-market margin from Europe’s existing variation margin 12 See Notice, 84 FR at 22533. haircutting rules for the F&O Contract 11 See Notice, 84 FR at 22532–33. 13 See Notice, 84 FR at 22533.

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Principal has failed to make a conforming changes to the provisions of adjust the calculation of the relevant cap corresponding payment to ICE Clear Rule 908 to address contributions to and on contributions for all Contract Europe, and the amount of the failure uses of the Guaranty Fund.15 The Categories, and reduce the length of the exceeds the initial or original margin proposed rule change would also move Cooling-off Period.16 Under the posted by that Clearing Member or and reorganize provisions in Rules 909, proposed rule change, certain calls for Sponsored Principal. 910, and 911 as described below. assessments for the relevant Contract • The proposed rule change would Category, or a sequential Guaranty Fund ix. Governance update ICE Clear Europe’s ability to depletion in the relevant Contract The proposed rule change includes a modify the order of application of Category within a specified period, number of revisions that would specify Guaranty Fund Contributions under the would trigger a Cooling-off Period. The the required governance provisions that Auction Procedures to provide for proposed rule change would reduce the would apply to these new default juniorization based on bidding (Rule base length of the Cooling-off Period management tools.14 908(i), and conforming cross-references from 30 Business Days to 30 calendar Under the CDS Default Auction throughout). days in order to balance the goals of Procedures, ICE Clear Europe would be • Proposed revisions to Rule 909 limited liability and certainty for required to consult with its CDS Default would specify a single Powers of Clearing Members with the need for the Committee as to certain matters of Assessment for all Contract Categories, Clearing House to restore normal auction design, including the division of eliminating inconsistencies across the operations following recovery as quickly the relevant portfolio into lots, whether default rules for different products. The as possible. As under the current Rules, to hold additional auctions, and proposed rule change would make a Cooling-off Period could be extended whether to accept a partial fill of any lot various deletions and insertions to as a result of subsequent defaults during in any such auction. The CDS Default remove duplication among the three the period. Committee would be made up of Contract Categories. In addition, the Rule 917(b) would also be revised to personnel seconded from Clearing proposed rule change would remove as provide that the ‘‘3x’’ cap on relevant Members, who would be required to act unnecessary a certification requirement contributions during a Cooling-off in the best interests of ICE Clear Europe in connection with the application of Period would apply to both Assessment when acting in their capacity as claims under any default insurance Contribution and replenishments of the members of the CDS Default Committee. policies for F&O Contracts (Rules 909– Relevant Guaranty Fund, in the The CDS Default Committee would be 911). aggregate, regardless of the number of expected to work together with, and • Proposed Rule 909(a) would permit defaults during the period. The cap under the supervision of, the ICE Clear assessments for CDS Contracts to be would be based on a Clearing Member’s Europe risk department, and would be called in anticipation of any charge individual Guaranty Fund Contribution supported by ICE Clear Europe legal, against the CDS Guaranty Fund immediately prior to the default that compliance, and other personnel. following a default, rather than only triggered the Cooling-off Period. Moreover, based on its existing Board after such a charge. This proposed Moreover, under the proposed rule charter and practice, ICE Clear Europe change would be consistent with the change, the existing single-default cap would expect that key decisions current treatment of assessments for on Assessment Contributions under regarding use of the recovery tools F&O Contracts. Rule 909 would continue to apply in a would be made in consultation with the • The proposed rule change would Cooling-off Period, as set out in Rule ICE Clear Europe Board of Directors, make certain changes throughout Part 917(b)(iii). The proposed rule change which is independent of ICE Clear 11 of the Rules to align the process for would also allow ICE Clear Europe to Europe management. Specifically, the return of Guaranty Fund Contributions rebalance, reset, and recalculate the Board has delegated to the President of following termination of Clearing Relevant Guaranty Fund during the ICE Clear Europe authority to take the Membership across all Contract Cooling-off Period, but such changes relevant steps set out under the Rules, Categories, align the Guaranty Fund would not affect the aggregate 3x or to ensure that such steps are taken, Contribution calculation methodology contribution limit. Finally, under upon an Event of Default with respect across all Contract Categories, and to proposed Rule 917(e), the proposed cap to a Clearing Member. Under the terms clarify that separate Guaranty Fund would not affect ICE Clear Europe’s of delegation, the President would be Contribution amounts calculated in right to call for margin from a Clearing required to ensure that the Board is respect of Proprietary and Customer Member. informed of the relevant circumstances, positions could be applied across any ii. Clearing Member Withdrawal steps or actions taken, and type of account. The proposed rule determinations made or approvals change would modify Rule 1101(e) to The proposed rule change would given, as soon as practicable subsequent better reflect current practice for the make certain changes to existing Rules to such Event of Default. The Board calculation of Guaranty Fund 209, 917, and 918, which currently would be able to, in its discretion and Contributions. Finally, the proposed apply only to F&O and FX Clearing where possible and practical, rescind rule change would delete Rule 1102(n) Members, and apply them to the CDS any steps or actions taken or and merge its content into Rule Contract Category as well, such that determinations made or approvals given 1102(m). these rules would apply to all ICE Clear by the President, or amend such actions, Europe Clearing Members and steps, determinations, or approvals, as C. Cooling-Off Period, Withdrawal, and Sponsored Principals.17 the Board determined appropriate. Termination for CDS Contracts Specifically, under revised Rule 917(c), CDS Clearing Members (like i. Cooling-Off Period B. Clarifications of Guaranty Fund other Clearing Members) and Sponsored Requirements and Uses The proposed rule change would Principals would be able to withdraw The proposed rule change would modify the Cooling-off Period concept from ICE Clear Europe during a Cooling- make various clarifications and in Rule 917 to apply it to CDS Contracts, 16 See Notice, 84 FR at 22534. 14 See Notice, 84 FR at 22535. 15 See Notice, 84 FR at 22533–22534. 17 See Notice, 84 FR at 22534.

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off Period by providing an irrevocable the determination of the termination Europe’s Clearing Procedures to reflect notice of withdrawal 18 in the first 10 price. the renaming of ICE Clear Europe’s risk business days of the period (subject to Rule 912 would permit ICE Clear model. extension in certain cases if the Cooling- Europe to terminate upon events such as III. Discussion and Commission off Period is extended). CDS Clearing a clearing house insolvency and failure Findings Members could withdraw from ICE to pay. Clear Europe at other times by notice to Rule 916 would apply where ICE Section 19(b)(2)(C) of the Exchange ICE Clear Europe under Rule 209(c). Clear Europe determines to terminate an Act directs the Commission to approve Under Rule 209(d), however, a CDS entire Contract Category in certain a proposed rule change of a self- Clearing Member that seeks to withdraw circumstances following an Event of regulatory organization if it finds that other than during the first 10 business Default, including where there has been such proposed rule change is consistent days of a Cooling-off Period could, at an Under-priced Auction or the Clearing with the requirements of the Exchange the direction of ICE Clear Europe, be House otherwise does not believe it will Act and the rules and regulations required to make a deposit of up to three have sufficient assets to perform its thereunder applicable to such times the CDS Clearing Member’s obligations in respect of that Contract organization.21 After carefully required Guaranty Fund Contribution Category. considering the proposed rule change, the Commission believes the proposed (this provision already applies to F&O D. Additional Changes Clearing Members). This increased rule change is consistent with the deposit requirement is intended to The proposed rule change would also requirements of the Exchange Act and provide assurance that the withdrawing make certain drafting improvements and the rules and regulations thereunder Clearing Member would continue to updates, clarifications, and conforming applicable to ICE Clear Europe. More 20 meet its obligations in respect of changes to the Rules. In particular, the specifically, the Commission finds that defaults and potential defaults before its proposed rule change would revise Rule the proposed rule change is consistent withdrawal would be effective, and thus 101 to add new defined terms that are with Section 17A(b)(3)(F) of the reduce the potentially destabilizing used in the changes and amendments Exchange Act 22 and Rules 17Ad– effect that a Clearing Member discussed above. The proposed rule 22(e)(1), (e)(2)(i), (iii), and (v), (e)(4)(viii) withdrawal (or a series of withdrawals) change would also revise Rule 101 to and (ix), (e)(13), and (e)(23)(i) and (ii) could have on the Clearing House include, for clarity, additional cross- thereunder.23 during a stressed situation. references to various terms that are defined in other parts of the Rules. The A. Consistency With Section Consistent with existing Rule 918’s 17A(b)(3)(F) of the Exchange Act application to F&O and FX Clearing proposed rule change would also make Members, a CDS Clearing Member’s other updates to definitions and cross- Section 17A(b)(3)(F) of the Exchange withdrawal under proposed revised references throughout the Rules, Act requires that the rules of a clearing Rule 918 would not be effective until including in Parts 4 and 11. agency be designed to, among other the CDS Clearing Member closed out all The proposed rule change would things, promote the prompt and outstanding positions and satisfied any make certain other conforming changes accurate clearance and settlement of related obligations. Further, a throughout the Rules to reflect the new securities transactions, assure the withdrawing CDS Clearing Member default management tools and safeguarding of securities and funds would remain liable under Rule 918 provisions discussed above, as well as which are in the custody or control of with respect to charges and assessments related defined terms. Specifically, the the clearing agency or for which it is resulting from defaults that occurred proposed rule change would amend responsible, and, in general, to protect before such time. Rule 903(d) to align treatment of investors and the public interest.24 automatic default termination In general, ICE Clear Europe iii. Clearing Service Termination provisions for all Contract Categories; maintains equal and opposite The proposed rule change would revise Rule 906 to clarify that certain obligations on cleared positions extend the existing provisions of Rules amounts payable to Clearing Members (commonly referred to as a matched 105(c), 912, and 916, which currently in respect of Guaranty Fund book). In an extreme loss event caused apply only to the F&O and FX Contract Contributions, assessments, reduced by a Clearing Member default, re- Categories and provide for full clearing gains distribution, partial tear-up, and establishing a matched book as quickly service termination for one or more of collateral offset obligations would be as possible is essential because it would those specific Contract Categories, such taken into account in that component of allow ICE Clear Europe to continue that they would apply to the CDS the net sum calculation; and add to Rule clearing and settling securities Contract Category as well.19 918(a)(viii) a cross-reference to the transactions as a central counterparty. In Specifically, Rule 105(c) would apply relevant Settlement Finality addition, allocating uncovered losses is where ICE Clear Europe determines to Regulations. The proposed rule change important in such an event because it cease acting as a Clearing House, also would make certain minor would allow ICE Clear Europe to whether generally or in relation to a clarifications and conforming updates in provide further certainty to Clearing particular class of Contracts. It would Part 12, designed to ensure consistency Members, their customers, and other provide for the application of the with the changes described above. The stakeholders about how it addresses procedures and terms in specified proposed rule change would also amend such losses and how it avoids a sections of Rule 918 to effect Rule 1901(k) to provide that Sponsored disorderly resolution to such an event. termination of the relevant contracts, Principals could be required to Thus, taken together, the Commission including the timing of termination and participate in Default Auctions. Finally, believes that the new and amended the proposed rule change would make 18 Pursuant to Rule 918(c), membership could certain other typographical and cross- 21 15 U.S.C. 78s(b)(2)(C). 22 only be reinstated pursuant to a new application for reference corrections throughout the 15 U.S.C. 78q–1(b)(3)(F). membership following the close-out of all of the 23 17 CFR 240.17Ad–22(e)(1), (e)(2)(i), (iii), and relevant Clearing Member’s open Contracts of the Rules, and would amend ICE Clear (v), (e)(4)(viii) and (ix), (e)(13), and (e)(23)(i) and Relevant Contract Category. (ii). 19 See Notice, 84 FR at 22534–22535. 20 See Notice, 84 FR at 22535. 24 15 U.S.C. 78q–1(b)(3)(F).

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authority granted to ICE Clear Europe withdrawal by Clearing Members and determine whether to terminate its specific to the context of extreme loss termination of clearing services to CDS membership and avoid further losses. events described above, such as the Contracts would provide CDS Clearing Similarly, the proposed rule change conduct of default auctions and the use Members with clarity regarding the would establish a Cooling-off Period, of partial tear-up, should enhance ICE process and requirements for which would cap Clearing Members’ Clear Europe’s ability to re-establish a withdrawal from ICE Clear Europe and obligations to make Assessment matched book, allocate uncovered losses ICE Clear Europe’s ability to terminate Contributions and replenish the if necessary, and limit ICE Clear the CDS clearing service in certain Relevant Guaranty Fund and would Europe’s potential exposure to losses circumstances. Finally, the Commission provide Clearing Members the from such an event, all of which would believes that the proposed rule change’s opportunity to withdraw from the be essential to ICE Clear Europe’s ability clarification that certain amounts Clearing House. Moreover, ICE Clear to continue to promptly and accurately payable to a defaulting Clearing Member Europe’s proposed reduced gains clear and settle securities transactions in in respect of that Clearing Member’s distributions would allow ICE Clear the event that an extreme market event Guaranty Fund Contributions, Europe, in certain circumstances, to places ICE Clear Europe in a recovery assessments, reduced gains distribution, reduce payment of variation, or mark-to- scenario. partial tear-up, and collateral offset market, gains that would otherwise be Further, the Commission believes that obligations would offset the amount owed to Clearing Members. Similarly, the proposed changes would provide a owed by that Clearing Member upon the proposed rule change would, in reasonable amount of clarity and default would provide greater certainty certain circumstances, permit ICE Clear specificity to Clearing Members, their regarding amounts owed upon default. Europe to delay payment of variation Because of this increased clarity and customers, and other stakeholders about margin or mark-to-market margin with specificity, ICE Clear Europe’s Clearing the potential tools that would be respect to CDS Contracts. Taken Members, their customers, and other expected to be available to ICE Clear together, the Commission believes that stakeholders should have more Europe if such an event occurred, and these tools are reasonably designed to information regarding their potential the consequences that might arise from provide ICE Clear Europe with sufficient exposure and liability to ICE Clear ICE Clear Europe’s application of such financial resources to cover default Europe in an extreme loss event. tools. Specifically, the Commission losses and help ensure that ICE Clear Accordingly, the Commission believes believes the removal of forced allocation Europe can take timely actions to that the proposed changes should allow contain losses in the event of a Clearing as a default management tool would Clearing Members, their customers, and provide certainty that non-defaulting Member default. Similarly, the other stakeholders to better evaluate the Commission believes that these changes Clearing Members would not be risks and benefits of clearing required to take on positions in a would provide Clearing Members and transactions at ICE Clear Europe, their customers with greater certainty defaulting Clearing Member’s portfolio because the proposed changes result in that could result in unpredictable and and predictability regarding the amount those parties having more information of losses they could be required to bear unquantifiable liability. Similarly, the and specificity regarding the actions Commission believes the CDS Default as a result of a Clearing Member default, that ICE Clear Europe could take in which in turn should allow them to Auction Procedures would provide response to an extreme loss event. To certainty regarding the conduct of initial better manage and potentially mitigate the extent that Clearing Members, their or otherwise limit their potential and secondary auctions and the use, and customers, and other stakeholders are exposure to such losses. For these possible juniorization, of Guaranty Fund able to use this increased clarity and reasons, the Commission believes that and Assessment Contributions based on specificity to better manage their the proposed rule change is designed to participation in such auctions. potential exposure and liability in assure the safeguarding of securities and Moreover, the Commission believes the clearing transactions at ICE Clear funds in ICE Clear Europe’s custody or proposed clarification of ICE Clear Europe, such parties should be able to control. Europe’s obligations with respect to mitigate the likelihood that such tools seeking recoveries from a defaulting could surprise or otherwise destabilize Additionally, ICE Clear Europe’s Clearing Member where the Guaranty them. For these reasons, the proposed authority to conduct partial Fund Contributions of non-defaulting Commission believes that the proposed tear-ups would provide ICE Clear Clearing Member have been applied rules providing for such clarity and Europe with a mechanism for restoring would provide Clearing Members with specificity are designed, in general, to a matched book. The Commission certainty that ICE Clear Europe would protect investors and the public interest. recognizes that a tear-up would result in exercise the same degree of care in It is important for ICE Clear Europe to termination of positions of non- enforcement and collection of any implement measures that enhance ICE defaulting Clearing Members. However, claims against the defaulter as it would Clear Europe’s ability to address losses because under the proposed rules ICE exercise with respect to its own assets. and to avoid threatening its ability to Clear Europe would only be able to use The Commission also believes the safeguard securities and funds within its tear-up authority for CDS Contracts proposed clarification regarding the ICE Clear Europe’s custody or control, after it has conducted an Initial Auction return of Guaranty Fund Contributions including measures designed to and Secondary Auction, both of which following termination of Clearing facilitate ICE Clear Europe’s ability to must have failed to eliminate or replace Membership and the calculation of address risks and obligations arising in the risk of a defaulter’s open positions Guaranty Fund Contributions across all the specific context of extreme loss before tear-up could be used, the contract categories would provide events. ICE Clear Europe’s proposed Commission believes that a partial tear- Clearing Members with important modified assessment powers would up would only arise in an extreme stress information about the use and impose a cap on a Clearing Member’s scenario. The Commission further calculation of the Guaranty Fund. In potential liability to replenish the believes that that use of tear-up in such addition, the Commission believes the Clearing Fund following a particular circumstances could potentially return proposed application of existing ICE default event and extend the timeframe ICE Clear Europe to a matched book Clear Europe Rules regarding during which a Clearing Member must quickly, thereby containing its losses

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and avoiding exposing ICE Clear Europe Europe’s procedures are clear and proposed rule change is consistent with and its Clearing Members to additional transparent in referring to the current Rules 17Ad–22(e)(2)(i), (iii), and (v).29 losses. ICE Clear Europe’s proposal version of the risk model. D. Allocation of Credit Losses Exceeding would also address the determination of Accordingly, the Commission believes Available Resources and Replenishment the Partial Tear-Up Price. Specifically, that the proposed rule change is of Financial Resources Following a for CDS Contracts, the Partial Tear-Up consistent with Rule 17Ad–22(e)(1).27 Price would equal the market price, as Default C. Governance determined by ICE Clear Europe in i. Consistency With Rule 17Ad– accordance with its procedures. The Rules 17Ad–22(e)(2)(i), (iii), and (v) 22(e)(4)(viii) Commission believes that ICE Clear require, in relevant part, that ICE Clear Europe’s proposed authority to conduct Europe establish, implement, maintain, Rule 17Ad–22(e)(4)(viii) requires, in tear-ups could facilitate its ability to and enforce written policies and relevant part, that ICE Clear Europe return to a matched book quickly and, procedures reasonably designed to establish, implement, maintain, and in an extreme event, allocate losses. provide for governance arrangements enforce written policies and procedures This, in turn, could help ensure that ICE that are clear and transparent; support reasonably designed to address Clear Europe is able to continue the public interest requirements of allocation of credit losses ICE Clear providing its critical clearing functions Section 17A of the Exchange Act Europe may face if its collateral and by facilitating the timely containment of applicable to clearing agencies, and the other resources are insufficient to fully default losses and liquidity pressures, objectives of owners and participants; cover its credit exposures.30 The thereby helping to prevent ICE Clear and specify clear and direct lines of proposed rule change includes two new Europe from failing in such an event, responsibility.28 recovery tools that would address the and is therefore consistent with The proposal, taken together with allocation of credit losses in the event promoting the prompt and accurate existing ICE Clear Europe policies, that ICE Clear Europe determined that, clearance and settlement of securities procedures, and practices, specifies the notwithstanding the availability of any transactions. governance provisions that would apply remaining resources under ICE Clear Therefore, the Commission believes to ICE Clear Europe’s use of each of the Europe’s other resource rules, ICE Clear that the proposed rule changes would recovery tools set forth in the proposed Europe may not have sufficient promote the prompt and accurate rule change. Specifically, as discussed resources to satisfy its obligations and clearance and settlement of securities above, ICE Clear Europe’s Board has liabilities following a default. First, transactions, assure the safeguarding of delegated to the President of ICE Clear proposed revised Rule 909 would securities and funds in ICE Clear Europe authority to take the relevant provide a framework for ICE Clear Europe’s custody and control, and, in steps set out under the Rules, or to Europe to assess Clearing Members for general, protect investors and the public ensure that such steps are taken, upon additional contributions to the Clearing interest, consistent with Section an Event of Default with respect to a Fund. Second, proposed new Rule 915 17A(b)(3)(F) of the Exchange Act.25 Clearing Member. Under the terms of would provide ICE Clear Europe the B. Well-Founded Legal Basis delegation, the President would be ability to conduct a mandatory partial tear-up of CDS Contracts. This tool Rule 17Ad–22(e)(1) requires, in required to ensure that the Board is could be used if necessary in the event relevant part, that ICE Clear Europe informed of the relevant circumstances, that one or more Secondary CDS establish, implement, maintain, and steps, or actions taken and Auctions has failed to eliminate or enforce written policies and procedures determinations made or approvals replace all remaining risk of the open reasonably designed to provide for a given, as soon as practicable subsequent positions of a defaulting Clearing well-founded, clear, transparent, and to such Event of Default. The Board Member and any positions ICE Clear enforceable legal basis for each aspect of would be able to, in its discretion, Europe entered into to hedge the risks its activities in all relevant where possible and practical, rescind of the open positions of a defaulting jurisdictions.26 The Commission any steps or actions taken or Clearing Member. believes that the proposed changes determinations made or approvals discussed above to: Revise Rule 101 to given, or amend such actions, steps, After due consideration of the record add new defined terms, update existing determinations or approvals, as it before it, the Commission believes that defined terms, and revise cross- determined appropriate. these additional recovery tools are references; revise Rules 903 and 906; Because key decisions by ICE Clear reasonably designed to provide ICE update definitions and cross-references Europe in connection with the use of its Clear Europe with means to address and make other conforming changes proposed recovery tools upon an Event allocation of credit losses that it may throughout the Rules; and correct of Default are subject to specific face if its collateral and other resources typographical errors, are necessary to governance processes, the Commission are insufficient to fully cover its credit ensure that the proposed recovery rules believes that the governance process for exposures. Further, the Commission are clear and transparent and operate as using the recovery tools is clear and believes that these tools should enhance intended. The Commission therefore transparent and provides clear and ICE Clear Europe’s ability to address believes that this aspect of the proposed direct lines of responsibility by fully any credit losses that ICE Clear rule change would help to ensure that addressing decision making in the use Europe may face as a result of any ICE Clear Europe’s Rules are well- of recovery tools, thereby supporting the individual or combined default among founded, clear, and enforceable. public interest requirements of Section its Clearing Members. Therefore, the Similarly, the Commission believes 17A of the Exchange Act applicable to Commission believes that these aspects that the renaming of ICE Clear Europe’s clearing agencies, and the objectives of of the proposed changes are consistent risk model in the Clearing Procedures owners and participants, and therefore with Rule 17Ad–22(e)(4)(viii).31 would help to ensure that ICE Clear the Commission believes that the 29 17 CFR 240.17Ad–22(e)(2)(i), (iii), and (v). 25 15 U.S.C. 78q–1(b)(3)(F). 27 17 CFR 240.17Ad–22(e)(1). 30 17 CFR 240.17Ad–22(e)(4)(viii). 26 17 CFR 240.17Ad–22(e)(1). 28 17 CFR 240.17Ad–22(e)(2)(i), (iii), and (v). 31 17 CFR 240.17Ad–22(e)(4)(viii).

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ii. Consistency With Rule 17Ad– and predictability regarding their potential losses by allowing ICE Clear 22(e)(4)(ix) potential liability to the Guaranty Fund. Europe to seek additional resources to Rule 17Ad–22(e)(4)(ix) requires, in Based on the record before it, the cover losses and eliminate any positions relevant part, that ICE Clear Europe Commission believes that the proposals of a defaulter remaining after an establish, implement, maintain, and described above strike an appropriate auction. Finally, the Commission enforce written policies and procedures balance and would provide greater believes that reduced gains distributions reasonably designed to describe ICE certainty and predictability regarding and delay of outbound margin would Clear Europe’s process to replenish any Clearing Members’ maximum liability to allow ICE Clear Europe to eliminate financial resources it may use following the Guaranty Fund. Moreover, Clearing losses and respond to liquidity demands Members that have made the maximum arising from a Clearing Member’s a default or other event in which use of contribution during a Cooling-off Period default by eliminating or delaying resources is contemplated.32 The proposed changes to ICE Clear would still be required, under proposed payment of variation or mark-to-market Europe’s assessment powers would Rule 917(e), to provide additional margin. Thus, the Commission believes proprietary initial margin during the that these tools, taken together, would produce in Rule 909 a single assessment period, which would facilitate ICE Clear provide ICE Clear Europe the authority rule for all categories of contracts Europe’s ability to continue to satisfy its and operational capacity to take timely cleared by ICE Clear Europe, thus regulatory minimum financial resources action to contain losses and liquidity eliminating inconsistencies across the requirements. demands and continue to meet its default rules for different products. The In light of the foregoing discussion, obligations, consistent with Rule 17Ad– proposed rule change would also permit the Commission believes that the 22(e)(13). assessments for CDS Contracts to be provisions related to ICE Clear Europe’s The Commission recognizes that a called in anticipation of any charge assessment powers, taken together with partial tear-up would result in against the CDS Guaranty Fund the other components of ICE Clear termination of positions of non- following a default, rather than only Europe’s default management defaulting Clearing Members. However, after such a charge, consistent with the procedures and recovery rules, are because ICE Clear Europe would only be current treatment of assessments for reasonably designed to allow ICE Clear able to use its partial tear-up authority F&O Contracts. Europe to replenish its financial after one or more unsuccessful Initial The proposed rule change would also resources following a default or other and Secondary CDS Auctions have include a Cooling-off Period for all event in which use of such resources is failed to eliminate or replace all categories of contracts cleared by ICE contemplated, and therefore are remaining risk of the open positions of Clear Europe. Specifically, the proposed consistent with Rule 17Ad– a defaulting Clearing Member and any rule change would modify the Cooling- 22(e)(4)(ix).33 positions ICE Clear Europe entered into off Period concept in Rule 917 and to hedge the risks of the open positions E. Authority To Take Timely Action To apply it to CDS Contracts, reduce the of a defaulting Clearing Member, the Contain Losses and Liquidity Demands base length of the Cooling-off Period Commission believes that a tear-up and Continue To Meet Obligations from 30 Business Days to 30 calendar would only arise in an extreme stress days, and provide that the 3x cap on Rule 17Ad–22(e)(13) requires, in scenario. Further, use of tear-up in such contributions during a Cooling-off relevant part, that ICE Clear Europe circumstances could potentially return Period would apply to both Assessment establish, implement, maintain, and ICE Clear Europe to a matched book Contributions and replenishments of the enforce written policies and procedures quickly, thereby containing its losses. Relevant Guaranty Fund, in the reasonably designed to ensure that it has Similarly, the Commission recognizes aggregate, regardless of the number of the authority and operational capacity that reduced gains distributions would defaults during the period. Moreover, to take timely action to contain losses result in some Clearing Members not under the proposed rule change, the and liquidity demands and continue to receiving market gains on their existing single-default cap on meet its obligations.34 As described positions. However, ICE Clear Europe Assessment Contributions under Rule above, the proposed rule change would could only invoke reduced gains 909 would continue to apply in a provide ICE Clear Europe with a variety distributions in certain limited Cooling-off Period, as set out in Rule of tools designed to help ensure that ICE circumstances that the Commission 917(b)(iii). Finally, under the proposed Clear Europe is able to meet this believes would most likely only occur rule change, a Cooling-off Period would requirement, including new CDS in an extreme stress scenario. For be triggered by certain calls for Default Auction Procedures, modified example, for CDS Contracts, the assessments for the relevant Contract assessment powers, partial tear-ups, proposed rule change would only allow Category or by sequential Guaranty reduced gains distributions, and delay ICE Clear Europe to use reduced gains Fund depletion in the relevant Contract of outbound margin. The Commission distribution for CDS Contracts after (i) Category within a specified period. believes that the new CDS Default there has been an unsuccessful Initial The Commission recognizes that by Auction Procedures would provide ICE CDS Auction, (ii) ICE Clear Europe has placing a cap on its assessment power Clear Europe a means of containing the exhausted its remaining available during the Cooling-off Period, these potential losses associated with a default resources (including assessment revisions would effectively limit the defaulting Clearing Member’s open contributions paid so far), and (iii) ICE amount of financial resources available positions by providing ICE Clear Europe Clear Europe has called for assessment to ICE Clear Europe from its Clearing the ability to auction off a defaulting contributions and such contributions Fund during that period. However, the Clearing Member’s portfolio. Similarly, have become due and payable. Commission believes that it is the Commission believes that the Similarly, although the proposed rule appropriate for ICE Clear Europe to modified assessment powers and partial change would allow ICE Clear Europe to attempt to balance its need to maximize tear-ups would provide ICE Clear delay paying variation margin or mark- available financial resources with Europe a mechanism for eliminating to-market margin with respect to CDS Clearing Members’ need for certainty Contracts, the Commission believes this 33 17 CFR 240.17Ad–22(e)(4)(ix). tool as well would only be invoked in 32 17 CFR 240.17Ad–22(e)(4)(ix). 34 17 CFR 240.17Ad–22(e)(13). an extreme stress scenario because ICE

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Clear Europe would only be permitted IV. Solicitation of Comments V. Accelerated Approval of Proposed to delay paying variation margin or Rule Change, as Modified by Interested persons are invited to mark-to-market margin on an intra-day Amendment No. 1 basis and only where (i) a Clearing submit written data, views, and Member has failed to make a arguments concerning the foregoing, The Commission finds good cause, corresponding payment to ICE Clear including whether the proposed rule pursuant to Section 19(b)(2) of the Europe and (ii) the amount of the failure change, as modified by Amendment No. Act,38 to approve the proposed rule exceeds the initial or original margin 1, is consistent with the Act. Comments change, as modified by Amendment No. posted by that Clearing Member. may be submitted by any of the 1, prior to the 30th day after the following methods: Taken together, the Commission publication of notice of Amendment No. believes that these tools are designed to Electronic Comments 1 in the Federal Register. As discussed above, ICE Clear Europe filed provide greater certainty to Clearing • Use the Commission’s internet Amendment No. 1 to add a confidential Members seeking to estimate the comment form (http://www.sec.gov/ Exhibit 3 to the filing associated with potential risks and losses arising from rules/sro.shtml) or their use of ICE Clear Europe, while the proposed rule change. Amendment • Send an email to rule-comments@ enabling ICE Clear Europe to promptly No. 1 did not make any changes to the sec.gov. Please include File Number SR– return to a matched book in an extreme substance of the filing or the text of the ICEEU–2019–003 on the subject line. loss event caused by a Clearing Member proposed rule change, nor did it raise default. The Commission believes that Paper Comments any novel regulatory issues. returning to a matched book pursuant to • Accordingly, the Commission finds these provisions in the context of ICE Send paper comments in triplicate good cause for approving the proposed Clear Europe’s default management and to Secretary, Securities and Exchange recovery facilitates ICE Clear Europe’s Commission, 100 F Street NE, rule change, as modified by Amendment operational capacity to timely contain Washington, DC 20549–1090. No. 1, on an accelerated basis, pursuant 39 losses and liquidity demands while All submissions should refer to File to Section 19(b)(2) of the Act. continuing to meet its obligations. Thus, Number SR–ICEEU–2019–003. This file VI. Conclusion the Commission believes that the number should be included on the proposed changes are consistent with subject line if email is used. To help the On the basis of the foregoing, the Rule 17Ad–22(e)(13).35 Commission process and review your Commission finds that the proposal is comments more efficiently, please use consistent with the requirements of the F. Public Disclosure of Key Aspects of only one method. The Commission will Default Rules Act, and in particular, with the post all comments on the Commission’s requirements of Section 17A(b)(3)(F) of Rules 17Ad–22(e)(23)(i) and (ii) internet website (http://www.sec.gov/ the Act 40 and Rules 17Ad–22(e)(1), require, in relevant part, that ICE Clear rules/sro.shtml). Copies of the (e)(2)(i), (iii), and (v), (e)(4)(viii) and (ix), Europe establish, implement, maintain, submission, all subsequent (e)(13), and (e)(23)(i) and (ii) and enforce written policies and amendments, all written statements thereunder.41 procedures reasonably designed to with respect to the proposed rule It is therefore ordered pursuant to provide for the public disclosure of all change, as modified by Amendment No. Section 19(b)(2) of the Act 42 that the relevant rules and material procedures, 1, that are filed with the Commission, including key aspects of default rules and all written communications relating proposed rule change, as modified by and procedures, as well as sufficient to the proposed rule change, as Amendment No. 1 (SR–ICEEU–2019– information to enable participants to modified by Amendment No. 1, between 003), be, and hereby is, approved on an 43 identify and evaluate the risks, fees, and the Commission and any person, other accelerated basis. other material costs they incur by than those that may be withheld from For the Commission, by the Division of participating in ICE Clear Europe.36 The the public in accordance with the Trading and Markets, pursuant to delegated Commission believes that the proposed provisions of 5 U.S.C. 552, will be authority.44 changes enhance key aspects of ICE available for website viewing and Eduardo A. Aleman, printing in the Commission’s Public Clear Europe’s default rules and Deputy Secretary. procedures, thereby providing Clearing Reference Room, 100 F Street NE, [FR Doc. 2019–14403 Filed 7–5–19; 8:45 am] Members with a better understanding of Washington, DC 20549, on official the potential risks and costs they might business days between the hours of BILLING CODE 8011–01–P face in an extreme event where ICE 10:00 a.m. and 3:00 p.m. Copies of such Clear Europe may use its proposed filings will also be available for recovery tools, including the potential inspection and copying at the principal use of partial tear-up and reduced gains office of ICE Clear Europe and on ICE distributions, and the circumstances in Clear Europe’s website at https:// which Clearing Members may withdraw www.theice.com/clear-europe/ 38 from ICE Clear Europe or ICE Clear regulation. All comments received will 15 U.S.C. 78s(b)(2). 39 Europe may terminate a clearing service. be posted without change. Persons 15 U.S.C. 78s(b)(2). 40 Accordingly, the Commission believes submitting comments are cautioned that 15 U.S.C. 78q–1(b)(3)(F). 41 that ICE Clear Europe has disclosed we do not redact or edit personal 17 CFR 240.17Ad–22(e)(1), (e)(2)(i), (iii), and identifying information from comment (v), (e)(4)(viii) and (ix), (e)(13), and (e)(23)(i) and these key aspects of its default rules and (ii). procedures, consistent with Rule 17Ad– submissions. You should submit only 42 15 U.S.C. 78s(b)(2). 37 22(e)(23)(i) and (ii). information that you wish to make 43 In approving the proposed rule change, the available publicly. All submissions Commission considered the proposal’s impact on 35 17 CFR 240.17Ad–22(e)(13). should refer to File Number SR–ICEEU– efficiency, competition, and capital formation. 15 36 17 CFR 240.17Ad–22(e)(23)(i) and (ii). 2019–003 and should be submitted on U.S.C. 78c(f). 37 Id. or before July 29, 2019. 44 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE summaries, set forth in sections A, B, ‘‘any written (including electronic) COMMISSION and C below, of the most significant communication that includes an aspects of such statements. analysis of equity securities of [Release No. 34–86257; File No. SR–FINRA– individual companies or industries 2019–017] A. Self-Regulatory Organization’s (other than an open-end investment Statement of the Purpose of, and Self-Regulatory Organizations; registered investment company that is Statutory Basis for, the Proposed Rule not listed or traded on an exchange) and Financial Industry Regulatory Change Authority, Inc.; Notice of Filing of a that provides information reasonably Proposed Rule Change To Amend 1. Purpose sufficient upon which to base an investment decision.’’ 10 FINRA Rules 2210 (Communications The FAIR Act With the Public) and 2241 (Research Under the FAIR Act, the term The FAIR Act requires the SEC to Analysts and Research Reports) ‘‘covered investment fund research propose and adopt rule amendments report’’ includes a research report July 1, 2019. that would extend the current safe published or distributed by a broker- Pursuant to Section 19(b)(1) of the harbor under Securities Act of 1933 dealer about a ‘‘covered investment Securities Exchange Act of 1934 (‘‘Securities Act’’) Rule 139 4 to a fund,’’ 11 or any of the covered (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 ‘‘covered investment fund research investment fund’s securities. However, a notice is hereby given that on June 20, report’’ upon terms and conditions that covered investment fund research report 2019, Financial Industry Regulatory the SEC determines are necessary or excludes research published or Authority, Inc. (‘‘FINRA’’) filed with the appropriate in the public interest, for distributed by the covered investment Securities and Exchange Commission the protection of investors, and for the fund itself, any affiliate of a covered (‘‘SEC’’ or ‘‘Commission’’) the proposed promotion of capital formation.5 In investment fund, or any broker-dealer rule change as described in Items I, II, implementing the safe harbor for that is an investment adviser (or an and III below, which Items have been covered investment fund research affiliated person of an investment prepared by FINRA. The Commission is reports, the SEC is required to: (1) Meet adviser) to the covered investment publishing this notice to solicit specified requirements concerning the fund.12 comments on the proposed rule change safe harbor’s conditions, (2) prohibit any Rule 139 from interested persons. self-regulatory organization (‘‘SRO’’) from maintaining or enforcing specified Securities Act Rule 139 provides that I. Self-Regulatory Organization’s rules regarding such reports, and (3) a broker’s or dealer’s publication or Statement of the Terms of Substance of provide that a covered investment fund distribution of a research report about the Proposed Rule Change research report is not subject to the sales an issuer or any of its securities shall be FINRA is proposing to amend FINRA material filing requirements in section deemed for purposes of sections 2(a)(10) Rules 2210 (Communications with the 24(b) of the Investment Company Act of and 5(c) of the Securities Act not to Public) and 2241 (Research Analysts 1940 (‘‘Investment Company Act’’).6 On constitute an offer for sale or offer to sell and Research Reports) to conform to the November 30, 2018, the SEC adopted its a security that is the subject of a requirements of the Fair Access to final rules and rule amendments to registered offering, provided that the Investment Research Act of 2017 (‘‘FAIR implement the mandates of the FAIR issuer and its securities meet specified Act’’).3 The proposed rule change would Act.7 These requirements are discussed conditions in the Rule. Rule 139 is eliminate the ‘‘quiet period’’ restrictions in more detail below. sometimes described as a ‘‘safe harbor’’ for such research reports, since they are in Rule 2241 on publishing a research Definition of ‘‘Covered Investment Fund report or making a public appearance Research Report’’ 10 The definition includes a number of concerning a covered investment fund exclusions, such as for communications that are and would create a filing exclusion Under the FAIR Act, a ‘‘research limited to discussions of broad-based indices, under FINRA Rule 2210 for covered report’’ generally has the meaning given communications that are distributed to fewer than investment fund research reports. that term under section 2(a)(3) of the 15 persons, and statutory prospectuses that are filed Securities Act.8 Under section 2(a)(3), as part of an issuer’s registration statement. See The text of the proposed rule change FINRA Rule 2241(a)(11). is available on FINRA’s website at ‘‘research report’’ means ‘‘a written, 11 Section 2(f)(2) of the FAIR Act defines ‘‘covered http://www.finra.org, at the principal electronic or oral communication that investment fund’’ as: office of FINRA and at the includes information, opinions, or (A) An investment company registered under, or Commission’s Public Reference Room. recommendations with respect to that has filed an election to be treated as a business securities of an issuer or an analysis of development company under, the Investment II. Self-Regulatory Organization’s Company Act of 1940 (15 U.S.C. 80a–1 et seq.) and a security or an issuer, whether or not that has filed a registration statement under the Statement of the Purpose of, and it provides information reasonably Securities Act of 1933 (15 U.S.C. 77a et seq.) for the Statutory Basis for, the Proposed Rule sufficient upon which to base an public offering of a class of its securities, which Change 9 registration statement has been declared effective by investment decision.’’ In contrast, the Commission; and In its filing with the Commission, under FINRA Rule 2241 (Research (B) a trust or other person— FINRA included statements concerning Analysts and Research Reports), the (i) issuing securities in an offering registered the purpose of and basis for the term ‘‘research report’’ is defined as under the Securities Act of 1933 (15 U.S.C. 77a et seq.) and which class of securities is listed for proposed rule change and discussed any trading on a national securities exchange; 4 17 CFR 230.139. comments it received on the proposed (ii) the assets of which consist primarily of 5 rule change. The text of these statements See section 2(a) of the FAIR Act. commodities, currencies, or derivative instruments may be examined at the places specified 6 See section 2(b) of the FAIR Act. that reference commodities or currencies, or 7 in Item IV below. FINRA has prepared See Securities Act Release No. 10580 (November interests in the foregoing; and 30, 2018), 83 FR 64180 (December 13, 2018) (the (iii) that provides in its registration statement ‘‘Release’’). under the Securities Act of 1933 (15 U.S.C. 77a et 1 15 U.S.C. 78s(b)(1). 8 However, the term does not include an oral seq.) that a class of its securities are purchased or 2 17 CFR 240.19b–4. communication. See section 2(f)(6) of the FAIR Act. redeemed, subject to conditions or limitations, for 3 See Fair Access to Investment Research Act of 9 See section 2(a)(3) of the Securities Act, 15 a ratable share of its assets. 2017, Public Law 115–66, 131 Stat. 1196 (2017). U.S.C. 77b(a)(3). 12 See section 2(f)(3) of the FAIR Act.

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not subject to many of the Securities Rule 139 safe harbor to include covered rules governing communications with Act’s requirements for written offers of investment fund research reports, the public.23 Section 24(b) of the securities. Prior to the SEC’s adoption of subject to specified conditions. Rule Investment Company Act generally rules required by the FAIR Act, Rule 139b adopts the FAIR Act’s definitions requires certain registered investment 139’s safe harbor was not available for of ‘‘covered investment fund,’’ ‘‘covered companies and their underwriters to file a broker-dealer’s publication or investment fund research report,’’ and sales material concerning those funds distribution of research reports ‘‘research report,’’ subject to minor non- with the SEC within 10 days of use.24 pertaining to specific registered substantive revisions.17 Among other things, in order to Changes to FINRA Rules Required by investment companies or business the FAIR Act development companies (‘‘BDCs’’). qualify for the Rule 139b safe harbor In implementing the safe harbor, the with respect to an issuer-specific FINRA interprets the FAIR Act as FAIR Act directs the SEC to meet certain research report, the covered investment requiring it to make two changes to requirements concerning covered fund that is the subject of the report FINRA Rules. First, FINRA is proposing investment fund research reports. For must have been subject to relevant to amend Rule 2241 to eliminate the example, the SEC is limited in terms of reporting requirements under the quiet period restrictions on publishing a imposing conditions to the safe harbor Investment Company Act and the research report or making a public related to a broker-dealer’s initiation of Exchange Act for at least 12 calendar appearance concerning a covered research, or related to a covered months prior to the reliance on the safe investment fund that is the subject of investment fund’s registration history or harbor, and these reports must have such a report. Second, FINRA is minimum net assets. been filed in a timely manner.18 In proposing to amend Rule 2210 to create In addition, the SEC must provide addition, the covered investment fund a filing exclusion for covered that covered investment fund research must satisfy a minimum public market investment fund research reports that reports will not be subject to the filing threshold at the date of reliance on Rule qualify for the Securities Act Rule 139b requirements of section 24(b) of the 139b (the ‘‘float’’ requirement), which is safe harbor. 19 Investment Company Act, or rules or currently $75 million. In addition, the FINRA Equity Research Rules regulations thereunder, except to the safe harbor requires that a broker- extent that such reports are not subject dealer’s publication or distribution of FINRA Rule 2241 governs the to content standards of any SRO rules research reports be ‘‘in the regular publication of research reports related to research reports, including course of its business.’’ 20 Rule 139b also concerning equity securities and the analysts that produce such research. those governing communications with contains other conditions for industry Under Rule 2241, members must the public.13 However, the FAIR Act reports, and with regard to the establish, maintain and enforce written also specifies that nothing in the Act presentation of performance information policies and procedures reasonably shall be construed as in any way of a registered open-end management designed to identify and effectively limiting the authority of any SRO to investment company or a trust 21 manage conflicts of interest related to examine or supervise a member’s account. the preparation, content and practices in connection with covered In addition, Rule 139b provides that distribution of research reports and investment fund research reports for an SRO may not maintain or enforce any public appearances by research compliance with federal law and SRO rule that would prohibit the ability of a analysts.25 Among other things, these rules, or to require the filing of member to publish or distribute a covered investment fund research report policies and procedures must define communications the purpose of which periods during which the member must is not to provide research and analysis solely because the member is 14 participating in a registered offering or not publish or otherwise distribute of covered investment funds. research reports, and research analysts The FAIR Act also requires the SEC to distribution of securities of a covered must not make public appearances, provide that SROs may not prohibit the investment fund, or to participate in a registered offering or other distribution related to the issuer (‘‘quiet periods’’). ability of a broker-dealer to publish or These quiet periods restrict a member distribute a covered investment fund of such securities solely because the member has published or distributed a that has participated as an underwriter research report solely because the or dealer in an initial public offering broker-dealer is participating in a covered investment fund research report about the fund or its securities.22 (‘‘IPO’’) from publishing research or registered offering or other distribution having its research analysts make public of the fund, and that an SRO may not The SEC also adopted new Rule 24b– 4 under the Investment Company Act, appearances for a minimum of 10 days prohibit the ability of a broker-dealer to following the date of an IPO. They also participate in the registered offering or which specifies that a covered investment fund research report as restrict a member that has acted as a distribution of a covered investment manager or co-manager of a secondary fund solely because the broker-dealer defined in Rule 139b that concerns a fund registered under the Investment offering from publishing research or has published or distributed research having its research analysts make about the fund.15 Company Act shall not be subject to section 24(b) of the Act or any rules or personal appearances for a minimum of SEC Final Rules Under the FAIR Act regulations thereunder, unless the three days following the date of the offering.26 On November 30, 2018, the SEC report is not subject to SRO rules adopted its final rules and rule relating to research reports, including 23 See 17 CFR 270.24b–4. amendments to implement the 24 17 See 15 U.S.C. 80a–24(b). This filing mandates of the FAIR Act.16 First, the See 17 CFR 230.139b(c). requirement applies to sales material concerning 18 SEC adopted new Rule 139b under the See 17 CFR 230.139b(a)(1)(i)(A). any registered open-end management investment 19 Securities Act, which expanded the See 17 CFR 230.139b(a)(1)(i)(B). The required company, any registered unit investment trust float value does not include shares held by affiliates (‘‘UIT’’), or any registered face-amount certificate of the fund, and is based on General Instruction company (‘‘FACC’’). 13 See section 2(b)(4) of the FAIR Act. I.B.1 to Form S–3. 25 See FINRA Rule 2241(b)(1). 14 See section 2(c)(2) of the FAIR Act. 20 See 17 CFR 230.139b(a)(1)(ii). 26 See FINRA Rule 2241(b)(2)(I). This provision 15 See section 2(b)(3) of the FAIR Act. 21 See 17 CFR 230.139b(a)(2) and (a)(3). contains specified exceptions to the quiet periods 16 See Release, supra note 7. 22 See 17 CFR 230.139b(b). Continued

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While Rule 2241 excludes from its investment fund research report.30 As discussed above, pursuant to definition of ‘‘research report’’ Although the FAIR Act does not address section 2(b)(4) of the FAIR Act, the SEC communications related to mutual quiet periods for public appearances by has adopted Investment Company Act funds, the Rule applies to research analysts, FINRA also proposes Rule 24b–4, which provides that a communications that meet the to eliminate quiet periods for public covered investment fund research definition of ‘‘research report’’ under appearances concerning a covered report, as defined in Securities Act Rule Rule 2241 concerning other covered investment fund. Under Rule 2241, 139b(c)(3), of a covered investment fund investment funds, including closed-end quiet periods for both research reports registered as an investment company funds (‘‘CEFs’’), exchange-traded funds and public appearances are the same, under the Investment Company Act, (‘‘ETFs’’), BDCs, UITs, and commodity and FINRA believes elimination of those shall not be subject to section 24(b) of or currency funds, to the extent such quiet periods would advance the policy the Act. However, a covered investment research reports are published by an objectives of the FAIR Act.31 fund research report is still subject to underwriter or dealer in the IPO or the section 24(b) filing requirement if Elimination of Filing Requirement manager or co-manager of a secondary the report is not subject to the content offering.27 Accordingly, such research As discussed above, section 24(b) of standards of any SRO rules related to reports (as defined under Rule 2241) on the Investment Company Act requires research reports, including those covered investment funds (other than registered open-end management contained in the SRO’s communications mutual funds) are subject to Rule 2241’s investment companies, registered UITs, rules regarding investment companies quiet periods. registered FACCs, and their or substantially similar standards.34 As discussed above, the FAIR Act underwriters to file sales material for As discussed above, section 2(c)(2) of requires the SEC to prohibit any SRO the funds with the SEC within 10 days the FAIR Act provides that nothing in from maintaining or enforcing any rule of first use. Investment Company Act the Act shall be construed as in any way that would prohibit the ability of a Rule 24b–3 provides that any sales limiting the authority of any SRO to member to: material shall be deemed filed with the examine or supervise a member’s SEC for purposes of section 24(b) upon • Publish or distribute a covered practices in connection with the filing with a registered national investment fund research report solely member’s publication or distribution of securities association that has adopted because the member is also participating a covered investment fund research rules providing standards for the in a registered offering or other report for compliance with applicable investment company advertising distribution of the fund; or provisions of the Federal securities laws practices of its members and has or SRO rules related to research reports, • Participate in a registered offering established and implemented including those contained in rules or other distribution of securities of a procedures to review that advertising.32 governing communications with the covered investment fund solely because Accordingly, virtually all principal public, or to ‘‘require the filing of the member has published or underwriters of mutual funds, ETFs, communications with the public the distributed a covered investment fund UITs and FACCs satisfy the section purpose of which is not to provide research report about the fund or its 24(b) requirement by filing their sales research and analysis of covered securities.28 material with FINRA. Rule 2210 investment funds.’’ 35 Accordingly, Accordingly, FINRA is proposing to requires members to file within 10 FINRA interprets the FAIR Act as amend Rule 2241 to add a new business days of first use or publication requiring FINRA to create a filing exception from the Rule’s quiet period retail communications that promote or exclusion in Rule 2210 for covered requirements for the publication or recommend a specific registered investment fund research reports, but distribution of research reports and investment company or family of permits FINRA to require the filing of a research analysts’ public appearances if registered investment companies covered investment fund research report the member has participated in the (including mutual funds, ETFs, variable if the purpose of the report is not to offering of the subject company’s insurance products, CEFs and UITs), as provide research and analysis of 29 securities. Under this new exception, well as retail communications that covered investment funds. the quiet period requirements shall not concern any other registered security In the Release, the SEC made clear apply to a research report or a public that is derived from or based on a single that, even if the exclusion of covered appearance following any offering of the security, a basket of securities, an index, investment fund research reports from securities of a covered investment fund a commodity, a debt issuance or a the provisions of section 24(b) affects that is the subject of a covered foreign currency.33 the applicability of FINRA Rule 2210’s filing requirements or exclusions, ‘‘it for research reports and public appearances 30 FINRA also proposes to define the terms would not affect FINRA’s authority to following an offering of securities of an Emerging ‘‘covered investment fund’’ and ‘‘covered require the filing of a communication Growth Company, for reports or appearances that investment fund research report’’ as having the discuss significant news or events concerning a same meanings as in Securities Act Rule 139b. See that is included in the FAIR Act subject company, and for reports and appearances proposed FINRA Rules 2241(a)(15) and (16) in regarding subject companies with ‘‘actively traded Exhibit 5. system as the date that FINRA membership became securities’’ as defined in SEC Regulation M. 31 FINRA rules do not prohibit a member from effective, a member also must file with FINRA at 27 See FINRA Rule 2241(a)(11). participating in a registered offering or other least 10 business days prior to first use any broadly 28 See section 2(b)(3) of the FAIR Act. The SEC distribution of securities of a covered investment disseminated retail communication, regardless of implemented this requirement in Securities Act fund solely because the member has published whether it concerns a registered investment Rule 139b(b). research about the fund. Accordingly, there is no company. See FINRA Rule 2210(c)(1)(A). In 29 As discussed above, because the definition of need to amend any FINRA rule to meet this addition, a member must file at least 10 business ‘‘research report’’ under Rule 2241 is narrower than requirement of section 2(b)(3) of the FAIR Act or days prior to first use any retail communication the definition of ‘‘research report’’ under the FAIR Securities Act Rule 139b(b). concerning registered investment companies that Act, not all covered investment fund research 32 FINRA is currently the only national securities includes performance rankings or comparisons that reports are subject to Rule 2241. Nevertheless, to association registered under the Exchange Act that are not generally published, or that were created by the extent that a covered investment fund research has adopted such rules and procedures. the investment company, its underwriter, or an report is also a research report subject to Rule 2241, 33 See FINRA Rules 2210(c)(3)(A) and (D). For a affiliate. See FINRA Rule 2210(c)(2)(A). the publication and distribution of such reports will one-year period beginning on the date reflected in 34 See 17 CFR 270.24b–4. not be subject to the rule’s quiet periods. FINRA’s Central Registration Depository (CRD®) 35 See section 2(c)(2) of the FAIR Act.

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definition of ‘covered investment fund research report’’ as defined by Rule 2210 for ‘‘any covered investment fund research report’ but whose purpose is 139b that qualifies for the Rule 139b research report that is deemed for not to provide research and analysis.’’ 36 safe harbor. The SEC has determined purposes of sections 2(a)(10) and 5(c) of The SEC also discussed in the Release which research reports should be the Securities Act not to constitute an industry comments recommending that subject to the safe harbor, and FINRA offer for sale or offer to sell a security FINRA modify its rules in light of the sees no policy reason to create a filing under Securities Act Rule 139b.’’ 41 FAIR Act. One commenter exclusion for covered investment fund FINRA also proposes to define ‘‘covered recommended that FINRA harmonize its research reports that differs from this investment fund research report’’ as research rules with SEC Rule 139b and standard. having the same meaning given that that broker-dealers relying on Rule 139b The FAIR Act authorizes FINRA to term in paragraph (c)(3) of Securities be exempted from FINRA’s filing require members to file any covered Act 139b.42 requirements with respect to covered investment fund research report the investment fund research reports. purpose of which is not to provide Affiliated Research Reports Another commenter suggested that the research and analysis of covered The FAIR Act and Securities Act Rule FAIR Act be interpreted as limiting investment funds. FINRA could simply 139b define ‘‘covered investment fund FINRA’s authority to require the filing amend Rule 2210 by adding a filing research report’’ to exclude a research of covered investment fund research exclusion for covered investment fund report to the extent that the report is reports only if a report provides research reports, but qualifying the published or distributed by the covered ‘‘information’’ that a user would not be filing exclusion as not applying to investment fund, any affiliate of the able to use for research and analysis, reports the purpose of which is not to covered investment fund, or any broker since such information would be for provide research and analysis of or dealer that is an investment adviser promotional rather than research covered investment funds. While this (or an affiliated person of an investment purposes. In addition, one commenter approach would adhere to the text of the adviser) for the covered investment argued that because the definition of FAIR Act, FINRA believes such an fund.43 Thus, research reports ‘‘research report’’ under the FAIR Act is approach would be difficult to apply in published or distributed by a covered broader than FINRA’s definition of practice and would be inconsistent with investment fund, its affiliate, or any ‘‘research report’’ in Rule 2241, this the purpose and spirit of the FAIR Act broker-dealer that is an investment difference may cause confusion and and Rule 139b. adviser (or an affiliate of the investment conflicting interpretive views on what For example, if FINRA took this adviser) for the covered investment fund communications are deemed research approach, members would have to first will still have to be filed under for purposes of the safe harbor and filing determine whether a covered Investment Company Act section 24(b) exclusion.37 investment fund research report and FINRA Rule 2210.44 FINRA believes that it would be qualifies for the Rule 139b safe harbor, In some cases an investment adviser inconsistent with the requirements of and then determine if it is for the or another affiliate of a registered Section 15D of the Exchange Act to purpose of providing research and investment company will enter into an modify the definition of ‘‘research analysis of covered investment funds. agreement with an unaffiliated broker- report’’ under FINRA Rule 2241 to This approach could create regulatory dealer to act as the principal match the definition of ‘‘research uncertainty for members, and also underwriter for the fund (‘‘third-party report’’ under the FAIR Act and Rule require more compliance resources to distributor’’). Third-party distributors 139b. Section 15D of the Exchange Act, process reports. FINRA believes that the provide a variety of services pursuant to which was enacted as part of the intent of the FAIR Act and Rule 139b is their distribution agreements with Sarbanes-Oxley Act, required FINRA to to increase the volume and publication investment companies. Typically, these adopt rules reasonably designed to of research reports on covered funds’ investment advisers or the funds address research analyst conflict of investment funds subject to appropriate themselves prepare the retail interests, and specifically defined conditions, and thus believes that its communications concerning the funds, ‘‘research report’’ using language similar filing exclusion should be consistent and then submit the communications to to that used in FINRA Rule 2241.38 with this approach. Moreover, FINRA the third-party distributor for FINRA further notes that SEC believes that Rule 139b’s requirements compliance review and filing with Regulation Analyst Certification (‘‘Reg reflect the Commission’s careful FINRA. These communications AC’’) also uses a substantially similar consideration of balancing the need for typically are published on the website definition of ‘‘research report.’’ FINRA more fund research with investor for the fund or its investment adviser, or Rule 2241 and Reg AC have different protection.39 For these reasons, FINRA regulatory objectives than the research proposes to exclude from filing all 41 See proposed FINRA Rule 2210(c)(7)(P) in report provisions of the FAIR Act, and covered investment fund research Exhibit 5. Congress could have—but chose not 42 See proposed FINRA Rule 2210(a)(7) in Exhibit reports that qualify for the Rule 139b 5. to—harmonize the statutory definitions safe harbor. Of course, FINRA may still 43 See section 2(f)(3) of the FAIR Act and of ‘‘research report’’ in the FAIR Act. review such reports through Securities Act Rule 139b(c)(3). FINRA intends to create a rule that examinations, targeted sweeps, or spot 44 If a research report concerns both a covered furthers the purposes of the FAIR Act, checks, and such reports will remain investment fund that is an affiliate of the member protects investors, and is relatively that is publishing or distributing the research subject to the content standards of report, as well as a third-party fund that is not straightforward for broker-dealers to FINRA rules governing communications affiliated with the member publishing or implement. These objectives can best be with the public.40 distributing the report, the research report would achieved if the filing exclusion applies Accordingly, FINRA proposes to not qualify as a covered investment fund research to any ‘‘covered investment fund create a new filing exclusion under Rule report. See Release, supra note 7, at 64191 (‘‘[w]e believe extending the rule 139b safe harbor to affiliated funds in industry research reports 36 See Release, supra note 7, at 64196. 39 See generally Release, supra note 7, at 64183– (whether industry representation or comprehensive 37 See supra note 36. 64193. list reports) would not be consistent with the intent 38 See Section 15D(d)(2) of the Exchange Act, 15 40 See section 2(c)(2) of the FAIR Act; see also and plain language of section 2(f)(3) of the FAIR U.S.C. 78o–6(d)(2). Release, supra note 7, at 64194 and fn. 185. Act’’).

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the investment adviser or another fund periods around publication of covered rather than just the reports that are for affiliate requests that it be published or investment fund research reports. research and analysis purposes. distributed through other media. FINRA believes the additional proposed Regulatory Need As the SEC noted in the Release, one change to eliminate quiet periods factor to consider in evaluating whether around public appearances involving an Consistent with requirements in the a research report has been published or offering of covered investment fund FAIR Act, FINRA is proposing to amend distributed by a person covered by the securities furthers the policies Rule 2241 to eliminate the Rule’s quiet affiliate exclusion from the definition of underlying the statutory mandate by periods for the publication of research covered investment fund research report improving information flow to investors reports concerning covered investment is the extent of such person’s regarding such funds. FINRA believes funds where the member is also involvement in the preparation of the that the proposed filing exclusion under participating in a registered offering or research report.45 These determinations FINRA Rule 2210 for covered other distribution of the fund. Although would be based on the extent to which investment fund research reports that not specifically addressed by the FAIR a person covered by the affiliate qualify for the SEC Rule 139b safe Act, quiet periods for public exclusion, or any person acting on its harbor is consistent with the FAIR Act’s appearances by research analysts that behalf, has been involved in preparing intent to increase the volume and are responsible for covered investment the information or explicitly or publication of research reports on fund research reports will also be implicitly endorsed or approved the covered investment funds subject to eliminated. FINRA believes that information. The Commission refers to appropriate conditions. FINRA also including public appearances in the such affiliate involvement or believes that the proposed rule change proposed amendments is consistent endorsement as ‘‘the entanglement or will improve efficiency and reduce with how FINRA has traditionally adoption theory, respectively.’’ 46 regulatory burden without diminishing viewed them vis-a`-vis research reports Thus, FINRA will not consider investor protection. As discussed above, and is in accordance with the spirit of research reports on covered investment FINRA retains other methods to review the FAIR Act. funds to be excluded from filing under covered investment fund research FINRA is also proposing to amend the proposed changes to Rule 2210 if reports. Rule 2210 to create a new filing personnel of the covered investment B. Self-Regulatory Organization’s exclusion for any covered investment fund, any affiliate of the fund, or any Statement on Burden on Competition fund research report that qualifies for broker-dealer that is the investment the Rule 139b safe harbor. The FAIR Act adviser or an affiliated person of the FINRA does not believe that the authorizes FINRA to continue to require investment adviser were entangled with proposed rule change will result in any members to file any covered investment the preparation of the report, or had burden on competition that is not fund research reports whose purpose is adopted its contents after it had been necessary or appropriate in furtherance for something other than research and prepared.47 For example, if a third-party of the purposes of the Act. FINRA has analysis of covered investment funds. distributor publishes or distributes undertaken an economic impact FINRA has chosen to exclude from Rule research concerning a fund that was assessment, as set forth below, to 2210 filing requirements all covered written by personnel of the fund’s analyze the regulatory need for the investment fund research reports that investment adviser, the report still proposed rulemaking, its potential qualify for the safe harbor under Rule would be subject to filing under Rule economic impacts, including 139b regardless of their purpose. 2210. anticipated costs and benefits, and the Economic Baseline and Impact If the Commission approves the alternatives FINRA considered in proposed rule change, FINRA will assessing how to best meet its regulatory Quiet Period objectives. announce the approval of the proposed Currently under Rule 2241, members rule change in a Regulatory Notice to be Economic Impact Assessment must establish policies and procedures published no later than 60 days FINRA interprets the FAIR Act as that prohibit research analysts that following Commission approval. The requiring it to make two changes to its produce ‘‘research reports’’ as defined effective date will be the date of rules regarding quiet periods for covered under that rule from making public Commission approval of the proposed investment funds and communications appearances during specified quiet rule change. filings of covered investment fund periods following the offering of an 2. Statutory Basis research reports. The Economic Impact equity security. As Rule 2241 does not Assessment considers only the impacts apply to research reports concerning FINRA believes that the proposed rule of the specific aspects of the proposed mutual funds, this proposed change will change is consistent with the provisions rule changes over which FINRA has only affect public appearances by of Section 15A(b)(6) of the Act,48 which used its discretion. The economic analysts responsible for reports requires, among other things, that implications for the other aspects of the concerning other types of equity FINRA rules must be designed to proposed rule change that are mandated securities, including covered investment prevent fraudulent and manipulative by the FAIR Act can be deemed assessed funds such as BDCs, commodity or acts and practices, to promote just and as part of the Act. currency funds. equitable principles of trade, and, in In this proposal, FINRA used its The proposed rule change will create general, to protect investors and the discretion in two areas. First, FINRA has a new exception from the Rule’s quiet public interest. FINRA believes that the chosen to include research analysts’ period requirements for the publication FAIR Act mandates the proposed public appearances as part of the or distribution of research reports and changes to the FINRA Rule 2241 quiet proposed exception to Rule 2241’s quiet research analysts’ public appearances. period requirements. Second, FINRA Elimination of the quiet period for 45 See Release, supra note 7, at 64182. 46 See supra note 45. has chosen to create a new filing research analysts’ public appearances 47 See Release, supra note 7, at 64181–64183 exclusion under 2210 for all covered will allow analysts to provide the same (discussion of affiliate exclusion). investment fund research reports that information contemporaneously through 48 15 U.S.C. 78o–3(b)(6). qualify for the Rule 139b safe harbor both research reports and public

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appearances. However, the elimination covered investment fund research Paper Comments of the quiet period could increase the reports whose purpose is to provide • risk that research analysts make research and analysis of the covered Send paper comments in triplicate misleading statements in public investment funds. If FINRA carved out to Secretary, Securities and Exchange appearances at an earlier date. This risk of the proposed exclusion non-research Commission, 100 F Street NE, is mitigated by the other aspects of Rule related reports, members would be Washington, DC 20549–1090. 2241, including identifying and required to first evaluate whether the managing conflicts of interest, with report was covered under the safe All submissions should refer to File which members are still required to harbor and then determine whether its Number SR–FINRA–2019–017. This file comply. purpose was for research and analysis or number should be included on the subject line if email is used. To help the Communications Filings something else. This additional evaluation criterion could lead to higher Commission process and review your Currently Rule 2210 requires compliance costs and greater regulatory comments more efficiently, please use members to file within 10 business days uncertainty, especially for those only one method. The Commission will of first use or publication certain retail members that publish or distribute a post all comments on the Commission’s communications including covered high number of covered investment internet website (http://www.sec.gov/ investment fund research reports that fund research reports. While this rules/sro.shtml). Copies of the would qualify under the Rule 139b safe requirement could reduce risks to submission, all subsequent harbor. FINRA is proposing to create a investors, FINRA believes that the amendments, all written statements new filing exclusion under Rule 2210 reduced risk is not commensurate with with respect to the proposed rule for all covered investment fund research the increased costs to members in change that are filed with the reports that qualify for the safe harbor complying with the rule and would be Commission, and all written under Rule 139b regardless of their inconsistent with the purpose and spirit communications relating to the purpose. of the FAIR Act and Rule 139b. Between 2016 and 2018, proposed rule change between the approximately 381 covered investment C. Self-Regulatory Organization’s Commission and any person, other than fund research reports were filed by Statement on Comments on the those that may be withheld from the members unaffiliated with the covered Proposed Rule Change Received From public in accordance with the investment fund. Over 90 percent of Members, Participants, or Others provisions of 5 U.S.C. 552, will be these reports were filed by three available for website viewing and member firms. FINRA does not know Comments were neither solicited nor printing in the Commission’s Public how many of the filings were for received. Reference Room, 100 F Street NE, purposes other than research and III. Date of Effectiveness of the Washington, DC 20549, on official analysis. Members that currently file Proposed Rule Change and Timing for business days between the hours of 10 these types of reports will benefit Commission Action a.m. and 3 p.m. Copies of such filing through savings on the administrative also will be available for inspection and costs associated with tracking filing Within 45 days of the date of copying at the principal office of publication of this notice in the Federal deadlines for the communications and FINRA. All comments received will be Register or within such longer period (i) with the time and effort to put together posted without change. Persons as the Commission may designate up to the filings as well as fees associated submitting comments are cautioned that 90 days of such date if it finds such with filing the reports. Alternatively, the we do not redact or edit personal exclusion of these reports from filing longer period to be appropriate and publishes its reasons for so finding or identifying information from comment requirements could increase risks to submissions. You should submit only investors. Lower costs could increase (ii) as to which the self-regulatory information that you wish to make the number of non-research related organization consents, the Commission available publicly. All submissions reports on unaffiliated covered will: investment funds published by (A) By order approve or disapprove should refer to File Number SR–FINRA– members. Further, members may risk such proposed rule change, or 2019–017 and should be submitted on or before July 29, 2019. including more biased or misleading (B) institute proceedings to determine statements in the reports given the lack whether the proposed rule change For the Commission, by the Division of of immediate FINRA oversight. should be disapproved. Trading and Markets, pursuant to delegated This risk to investors is mitigated by authority.49 IV. Solicitation of Comments two factors. First, only reports Eduardo A. Aleman, published or distributed by a member Interested persons are invited to Deputy Secretary. unaffiliated with the covered submit written data, views and investment fund qualify for the [FR Doc. 2019–14402 Filed 7–5–19; 8:45 am] arguments concerning the foregoing, BILLING CODE 8011–01–P exclusion. Members unaffiliated with including whether the proposed rule the covered investment fund have a change is consistent with the Act. lower incentive to provide misleading Comments may be submitted by any of information than those affiliated with the following methods: the fund. Second, FINRA continues to have the ability to review these Electronic Comments communications as part of the • examination process or through a sweep Use the Commission’s internet or spot checks. comment form (http://www.sec.gov/ rules/sro.shtml); or Alternatives Considered • Send an email to rule-comments@ FINRA considered excluding from the sec.gov. Please include File Number SR– Rule’s filing requirements only those FINRA–2019–017 on the subject line. 49 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE approves the Proposed Rules, which we applying professional skepticism. In this COMMISSION find to be consistent with the regard, the Proposed Rules: requirements of the Sarbanes-Oxley Act Æ Amend AS 2110, Identifying and [Release No. 34–86269 File No. PCAOB– 2019–005] and the securities laws and necessary or Assessing Risks of Material appropriate in the public interest or for Misstatement to require a discussion Public Company Accounting Oversight the protection of investors. among the key engagement team members of how the financial Board; Order Granting Approval of II. Description of the Proposed Rules Auditing Standard 2501, Auditing statements could be manipulated Accounting Estimates, Including Fair On December 20, 2018, the Board through management bias in accounting Value Measurements, and Related adopted AS 2501, Auditing Accounting estimates in significant accounts and Amendments to PCAOB Auditing Estimates, Including Fair Value disclosures; Standards Measurements and related amendments Æ Emphasize certain key to PCAOB auditing standards.7 The requirements to focus auditors on their July 1, 2019. Proposed Rules are intended to obligations, when evaluating audit I. Introduction strengthen and enhance the results, to exercise professional requirements for auditing accounting skepticism, including evaluating On March 20, 2019, the Public estimates, including fair value whether management bias exists; Company Accounting Oversight Board measurements, by replacing the existing Æ Remind auditors that audit (the ‘‘Board’’ or the ‘‘PCAOB’’) filed 8 with the Securities and Exchange three standards with a single standard evidence includes both information that Commission (the ‘‘Commission’’), that sets forth a uniform, risk-based supports and corroborates the pursuant to Section 107(b) 1 of the approach. The requirements contained company’s assertions regarding the Sarbanes-Oxley Act of 2002 (the within the Proposed Rules are discussed financial statements and information ‘‘Sarbanes-Oxley Act’’) and Section further below. that contradicts such assertions; Æ Require the auditor to identify 19(b) 2 of the Securities Exchange Act of A. Changes to PCAOB Standards 1934 (the ‘‘Exchange Act’’), a proposal significant assumptions used by the to adopt Auditing Standard 2501, The Proposed Rules include a single company and describe matters the Auditing Accounting Estimates, standard that replaces the accounting auditor should take into account when Including Fair Value Measurements and estimates standard, the fair value identifying those assumptions; 9 Æ related amendments to PCAOB auditing standard, and the derivatives standard. Provide examples of significant standards (collectively, the ‘‘Proposed The Proposed Rules also include a assumptions (important to the Rules’’).3 The Proposed Rules were special topics appendix that addresses recognition or measurement of the published for comment in the Federal certain matters relevant to auditing the accounting estimate), such as Register on April 4, 2019.4 At the time fair value of financial instruments. In assumptions that are susceptible to the notice was issued, the Commission addition, the Proposed Rules include manipulation or bias; Æ extended to July 3, 2019 the date by amendments to several other PCAOB Emphasize requirements for the which the Commission should take auditing standards to align them with auditor to evaluate whether the action on the Proposed Rules.5 We the new standard on auditing company has a reasonable basis for the received four comment letters in accounting estimates. The Proposed significant assumptions used and, when response to the notice.6 This order Rules will make the following changes applicable, for its selection of to existing requirements: assumptions from a range of potential 1 15 U.S.C. 7217(b). • Provide direction to prompt assumptions; 2 15 U.S.C. 78s(b). auditors to devote greater attention to Æ Explicitly require the auditor, when 3 The PCAOB staff originally issued a staff addressing potential management bias developing an independent expectation consultation paper on this matter in 2014. See in accounting estimates, as part of of an accounting estimate, to have a Auditing Accounting Estimates and Fair Value Measurements (Aug. 19, 2014), available at https:// reasonable basis for the assumptions pcaobus.org/Standards/Documents/SCP_Auditing_ order noticing the Proposed Rules are available on and method he or she uses; Accounting_Estimates_Fair_Value_ the Commission’s website at https://www.sec.gov/ Æ Require that the auditor obtain an Measurements.pdf. In 2017, the Board issued a comments/pcaob-2019-02/pcaob201902.htm. understanding of management’s analysis proposed rule. See Proposed Auditing Standard— 7 See Auditing Accounting Estimates, Including of critical accounting estimates and take Auditing Accounting Estimates, Including Fair Fair Value Measurements and Amendments to Value Measurements and Proposed Amendments to PCAOB Auditing Standards, PCAOB Release No. that understanding into account when PCAOB Auditing Standards, PCAOB Release No. 2018–005 (Dec. 20, 2018) (‘‘PCAOB Adopting evaluating the reasonableness of 2017–002 (June 1, 2017) (‘‘PCAOB Proposal’’), Release’’), available at https://pcaobus.org/ significant assumptions and potential available at https://pcaobus.org/Rulemaking/ Rulemaking/Docket043/2018-005-estimates-final- management bias; Docket043/2017-002-auditing-accounting- rule.pdf. Æ estimates-proposed-rule.pdf. 8 See Auditing Standard (‘‘AS’’) 2501, Auditing Recast certain existing 4 See Release No. 34–85434 Public Company Accounting Estimates (originally issued in April requirements using terminology that Accounting Oversight Board; Notice of Filing of 1988), which applies to auditing accounting encourages maintaining a skeptical Proposed Rules on Auditing Accounting Estimates, estimates in general (‘‘accounting estimates mindset, such as ‘‘evaluate’’ and Including Fair Value Measurements, and standard’’); AS 2502, Auditing Fair Value Amendments to PCAOB Auditing Standards (Mar. Measurements and Disclosures (originally issued ‘‘compare’’ instead of ‘‘corroborate;’’ 28, 2019), 84 FR 13396 (Apr. 4, 2019) available at January 2003), which applies to auditing the Æ Strengthen requirements for https://www.sec.gov/rules/pcaob/2019/34- measurement and disclosure of assets, liabilities, evaluating whether data was 85434.pdf. and specific components of equity presented or 5 appropriately used by a company that See id. disclosed at fair value in financial statements (‘‘fair build on requirements in the fair value 6 We received comment letters from Deloitte & value standard’’); and AS 2503, Auditing Derivative Touche LLP, April 10, 2019 (‘‘Deloitte Letter’’); the Instruments, Hedging Activities, and Investments in standard, and include a new Council of Institutional Investors, April 18, 2019 Securities (originally issued in September 2000), requirement for evaluating whether a (‘‘CII Letter’’); PricewaterhouseCoopers LLP, April which applies to auditing financial statement company’s change in the source of data 25, 2019 (‘‘PwC Letter’’); and the Center for Capital assertions for derivative instruments, hedging is appropriate; Markets Competitiveness, U.S. Chamber of activities, and investments in securities Æ Commerce, April 25, 2019 (‘‘CCMC Letter’’). Copies (‘‘derivatives standard’’). Clarify the auditor’s responsibilities of the comment letters received on the Commission 9 See id. for evaluating data that build on the

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existing requirements in AS 1105, Audit accounting estimates in significant Æ Relocate requirements in the Evidence; and accounts and disclosures; derivatives standard for obtaining audit Æ Amend AS 2401, Consideration of Æ Amend AS 2110 to set forth evidence when the valuation of Fraud in a Financial Statement Audit, requirements for obtaining an investments is based on investee results to clarify the auditor’s responsibilities understanding of the company’s process as an appendix to AS 1105. when performing a retrospective review for determining accounting estimates; • Provide specific requirements and of accounting estimates and align them Æ Require auditors to respond to direction to address auditing the fair with the requirements in the new significantly differing risks of material value of financial instruments, standard. misstatement in the components of including: • Extend certain key requirements in accounting estimates, consistent with Æ Establish requirements to the fair value standard to other AS 2110; determine whether pricing information accounting estimates in significant Æ Remind auditors of their obtained from third parties, such as accounts and disclosures to reflect a responsibility to evaluate conformity pricing services and brokers or dealers, more uniform approach to substantive with the applicable financial reporting provides sufficient appropriate audit testing. For estimates not currently framework, reasonableness, and evidence, including: subject to the fair value standard, this potential management bias and its effect D Focus auditors on the relevance and will: on the financial statements when reliability of pricing information from Æ Refine the three substantive responding to the risks of material third-party sources,11 regardless of approaches common to the accounting misstatement in accounting estimates in whether the pricing information was estimates standard to include more significant accounts and disclosures; obtained by the company or the auditor; specificity, similar to the fair value Æ Require the auditor, when D Establish factors that affect standard; identifying significant assumptions, to relevance and reliability of pricing Æ Describe the auditor’s take into account the nature of the information obtained from a pricing responsibilities for testing the accounting estimate, including related service; individual elements of the company’s risk factors, the applicable financial D Require the auditor to perform process used to develop the estimate reporting framework, and the auditor’s additional audit procedures to evaluate (i.e., methods, data, and significant understanding of the company’s process the process used by the pricing service assumptions); for developing the estimate; when fair values are based on Æ Set forth express requirements for Æ Include matters relevant to transactions of similar financial the auditor to evaluate the company’s identifying and assessing risks of instruments; methods for developing the estimate, material misstatement related to the fair D Require the auditor to perform including whether the methods are: value of financial instruments; additional procedures on pricing D In conformity with the requirements Æ Add a note in AS 2301 to information obtained from a pricing of the applicable financial reporting emphasize that performing substantive service when no recent transactions framework; and procedures for the relevant assertions of have occurred for either the financial D Appropriate for the nature of the significant accounts and disclosures instrument being valued or similar related account or disclosure, taking involves testing whether the significant financial instruments; into account the auditor’s accounts and disclosures are in D Establish conditions under which understanding of the company and its conformity with the applicable financial less information is needed about environment; and reporting framework; and particular methods and inputs of Æ Require the auditor to take into Æ Add a note to AS 2301 providing individual pricing services in account certain factors in determining that for certain estimates involving circumstances where prices are obtained whether significant assumptions that are complex models or processes, it might from multiple pricing services; and based on the company’s intent and be impossible to design effective D Establish factors that affect the ability to carry out a particular course of substantive tests that, by themselves, relevance and reliability of quotes from action are reasonable. brokers or dealers. • Further integrate requirements with would provide sufficient appropriate Æ Require the auditor to understand, the Board’s risk assessment standards 10 evidence regarding the assertions. • Make other updates to the if applicable, how unobservable inputs to focus auditors on estimates with requirements for auditing accounting were determined and evaluate the greater risk of material misstatement. estimates, including: reasonableness of unobservable inputs. The Proposed Rules incorporate specific Æ Update the description of what requirements relating to accounting B. Applicability and Effective Date constitutes an accounting estimate to estimates in AS 2110 and AS 2301 to encompass the general characteristics of The Proposed Rules would be inform the necessary procedures for the variety of accounting estimates, effective for audits of financial auditing accounting estimates. including fair value measurements, in statements for fiscal years ending on or Specifically, the Proposed Rules will: after December 15, 2020. The PCAOB Æ Amend AS 2110 to include risk financial statements; Æ Set forth specific requirements for has proposed application of the factors specific to identifying significant evaluating data and pricing information Proposed Rules to include audits of accounts and disclosures involving used by the company or the auditor that emerging growth companies (‘‘EGCs’’),12 accounting estimates; Æ Align the scope of the Proposed build on the existing requirements in 11 The requirements in this area focus primarily Rules with AS 2110 to apply to AS 1105; Æ Establish more specific on pricing information from pricing services and brokers or dealers, but also cover pricing 10 The Board’s ‘‘risk assessment standards’’ requirements for developing an information obtained from other third-party pricing include AS 1101, Audit Risk; AS 1105; AS 1201, independent expectation that vary sources, such as exchanges and publishers of Supervision of the Audit Engagement; AS 2101, depending on the source of data, exchange prices. Audit Planning; AS 2105, Consideration of assumptions or methods used by the 12 The term ‘‘emerging growth company’’ is Materiality in Planning and Performing an Audit; defined in Section 3(a)(80) of the Exchange Act (15 AS 2110; AS 2301, The Auditor’s Responses to the auditor and build on AS 2810 to provide U.S.C. 78c(a)(80)). See also Release No. 33–10332 Risks of Material Misstatement; and AS 2810, a requirement when developing an Inflation Adjustments and Other Technical Evaluating Audit Results. independent expectation as a range; and Continued

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as discussed in Section IV below, and including fair value measurements.18 standards to evaluate the overall effect audits of brokers and dealers under One commenter agreed with the Board’s of significant rulemakings.27 Exchange Act Rule 17a–5. view that the evolution of financial We acknowledge the importance of reporting frameworks has resulted in the monitoring the implementation of the III. Comment Letters expanded use of estimates and Proposed Rules. The Commission staff The comment period on the Proposed expressed support for a single, more works closely with the PCAOB as part Rules ended on April 25, 2019. We uniform principles-based standard to of our general oversight mandate.28 As received four comment letters from address the auditing of accounting part of that oversight, Commission staff accounting firms, an investor estimates, including fair value will keep itself apprised of the PCAOB’s association, and an issuer measurements, that is aligned with the activities for monitoring the organization.13 Commenters generally Board’s risk assessment standards.19 implementation of the Proposed Rules supported the Proposed Rules.14 Most Another commenter stressed the need and update the Commission, as commenters encouraged us to support for the Proposed Rules because necessary. the PCAOB’s plans to monitor accounting estimates, and particularly C. The Effective Date of the Proposed implementation, conduct post- fair value measurements and related Rules implementation review, or monitor disclosures, provide investors with advancements in technology that may ‘‘more useful information than amounts As noted above, the Proposed Rules affect application of the Proposed that would be reported under amortized would be effective for audits of financial Rules.15 One commenter raised cost or other existing alternative statements for fiscal years ending on or concerns regarding the effective date accounting approaches’’ and because after December 15, 2020. One due to other financial reporting the PCAOB has observed numerous commenter expressed concerns related activities that need to be implemented deficiencies in auditing accounting to the effective date as a result of other financial reporting activities, including and the potential impact on smaller estimates.20 The commenter also 16 upcoming effective dates of certain audit firms. indicated that the Proposed Rules will Financial Accounting Standards Board The Sarbanes-Oxley Act requires us to strengthen auditor responsibilities, (‘‘FASB’’) projects, other PCAOB determine whether the Proposed Rules improve audit quality, and further standards, and a view that smaller audit are consistent with the requirements of investor protection.21 the Sarbanes-Oxley Act and the firms may be disproportionately securities laws or are necessary or B. Implementation Efforts impacted.29 The commenter suggested a phased implementation of the Proposed appropriate in the public interest or for Most commenters noted their desire the protection of investors.17 In making Rules. Specifically, the commenter for ongoing monitoring by the PCAOB if recommended, as an example, that the this determination, we have considered the Proposed Rules are approved.22 Two the comments we received, as well as Commission allow triennially inspected commenters specifically supported the audit firms 30 to elect an effective date the feedback received and modifications 23 PCAOB’s plan to monitor of audits for fiscal years ending on or made by the PCAOB throughout its implementation, including advances in rulemaking process. The discussion after December 15, 2021, while also technology and any related effects on permitting earlier implementation since below addresses the significant points the application of the proposed raised in the comment letters we smaller audit firms may be amendments.24 Another commenter 31 received. disproportionally impacted. The recommended that the Commission, as commenter further expressed the belief A. General Support for the Proposed part of its oversight of the PCAOB, that a phased implementation may Rules should request that the PCAOB facilitate post-implementation reviews periodically update the Commission on 32 Commenters generally supported the of the Proposed Rules. the PCAOB’s activities for monitoring Proposed Rules, including strengthening In the PCAOB Adopting Release, the the implementation of the Proposed the audit requirements by applying a Board recognized the effort required for Rules along with the PCAOB’s findings more uniform, risk-based approach to other implementation efforts, but stated and responses to these activities, the audit of accounting estimates, the effective date determined by the including the PCAOB’s plans for a post- Board was designed to provide auditors 25 Amendments Under Titles I and III of the JOBS Act implementation review. with a reasonable period of time to (Mar. 31, 2017), 82 FR 17545 (Apr. 12, 2017). In the PCAOB Adopting Release, the implement the Proposed Rules, without 13 See Deloitte Letter, PwC Letter, CII Letter, and Board stated it would monitor unduly delaying the intended benefits CCMC Letter. implementation to determine whether of the Proposed Rules.33 14 See Deloitte Letter, PwC Letter, CII Letter, and CCMC Letter. additional interpretive guidance is 27 See PCAOB website at https://pcaobus.org/ 15 See e.g., Deloitte Letter; PwC Letter, and CCMC necessary, including monitoring the EconomicAndRiskAnalysis/pir/Pages/default.aspx. Letter. advancement of technology.26 In 28 See Section 107 of the Sarbanes-Oxley Act. 16 See CCMC Letter. addition, the PCAOB has an established 29 See CCMC Letter. 17 See Section 107(b)(3) of the Sarbanes-Oxley program to conduct post- 30 ‘‘Triennially inspected audit firms’’ are audit Act. The Sarbanes-Oxley Act also specifies that the implementation reviews of its rules and provisions of Section 19(b) of the Exchange Act firms that, in accordance with PCAOB Rule 4003(b), shall govern the proposed rules of the Board. See are required to be inspected at least once in every Section 107(b)(4) of the Sarbanes-Oxley Act. 18 See Deloitte Letter, CII Letter, PwC Letter, and three calendar years if, during that time, the audit Section 19 of the Exchange Act covers the CCMC Letter. firm issued an audit report for at least one issuer but no more than 100 issuers. An audit firm is registration, responsibilities, and oversight of self- 19 See PwC Letter. required to be inspected on an annual basis if, regulatory organizations. Under the procedures 20 See CII Letter. during the prior calendar year, it issued audit prescribed by the Sarbanes-Oxley Act and Section 21 See id. 19(b)(2) of the Exchange Act, the Commission must reports for more than 100 issuers (‘‘annually 22 See e.g., Deloitte Letter, PwC Letter, and CCMC either approve or disapprove, or institute inspected audit firms). See PCAOB Rule 4003, Letter. proceedings to determine whether the proposed Frequency of Inspections, available at https:// 23 _ rules of the Board should be disapproved; and these See PCAOB Adopting Release at 3, 21, and 46. pcaobus.org/Rules/Pages/Section 4.aspx. procedures do not expressly permit the Commission 24 See Deloitte Letter and CCMC Letter. 31 See CCMC Letter. to amend or supplement the proposed rules of the 25 See CCMC Letter. 32 See id. Board. 26 See PCAOB Adopting Release at 3, 21, and 46. 33 See PCAOB Adopting Release at 58.

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We believe the Board has inspected audit firms within their to the audits of EGCs.38 Commenters appropriately balanced the amount of network. who addressed this question supported time needed by audit firms to Based on these considerations, we do applying the proposed requirements to implement the Proposed Rules with the not believe a phased implementation audits of EGCs, citing benefits to the objectives of, and benefits obtained approach for the Proposed Rules, users of EGC financial statements and from, the Proposed Rules. In this regard, including providing triennially the risk of confusion and inconsistency we note that, aside from the commenter inspected audit firms with the option to if different methodologies were required who suggested that the Commission delay implementation, is necessary or for EGC and non-EGC audits.39 consider a phased implementation appropriate in the public interest or for In the PCAOB Adopting Release, the approach, we received no other the protection of investors. Board expressed its belief that comments from audit firms, including IV. Effect on Emerging Growth accounting estimates are common in the 40 triennially inspected audit firms, Companies financial statements of many EGCs. requesting a phased implementation. The Board also noted that data from In the PCAOB Adopting Release, the 2012–2016 reported inspection findings In addition, there could be practical Board recommended that the implications of allowing for a phased for audits of EGCs indicated a relatively Commission determine that the high number of deficiencies (i.e., 45%- implementation approach related to an Proposed Rules apply to audits of auditor performance standard.34 For 36 60% of Part I findings on audits of EGCs. Section 103(a)(3)(C) of the EGCs) related to the accounting example, audits of multi-national Sarbanes-Oxley Act, as amended by companies often involve the work of estimates standard and the fair value Section 104 of the Jumpstart Our standard.41 The PCAOB further more than one auditor conducted in Business Startups Act of 2012, requires accordance with AS 1205, Part of the observed that ‘‘[s]ince EGCs tend to be that any rules of the Board ‘‘requiring smaller public companies, their Audit Performed by Other Independent mandatory audit firm rotation or a accounting estimates may be less likely Auditors (‘‘AS 1205’’), wherein a supplement to the auditor’s report in to involve complex processes, although principal auditor may provide which the auditor would be required to those estimates may constitute some of instructions to the other auditors. Under provide additional information about the largest accounts in EGCs’ financial a phased implementation approach, an the audit and the financial statements of statements.’’ 42 The Board noted that the annually inspected audit firm serving as the issuer (auditor discussion and Proposed Rules are ‘‘risk-based and the principal auditor may instruct a analysis)’’ shall not apply to an audit of scalable for firms of all sizes,’’ and triennially inspected audit firm to an EGC. The provisions of the Proposed expressed the view that ‘‘any related follow the Proposed Rules before the Rules do not fall into these categories. triennially inspected audit firm has cost increases are justified by expected Section 103(a)(3)(C) further provides 43 implemented the Proposed Rules. This that ‘‘[a]ny additional rules’’ adopted by improvements in audit quality.’’ approach could create challenges for the the PCAOB after April 5, 2012, do not Additionally, the PCAOB Adopting triennially inspected audit firm as it apply to audits of EGCs ‘‘unless the Release noted that ‘‘any new PCAOB would be instructed to implement the Commission determines that the standards and amendments to existing Proposed Rules on individual application of such additional standards determined not to apply to engagements even though it may not requirements is necessary or appropriate the audits of EGCs would require have updated its methodologies or in the public interest, after considering auditors to address the differing trained its professionals on the the protection of investors and whether requirements within their Proposed Rules, which could have a methodologies, which would create the the action will promote efficiency, 44 negative effect on audit quality. competition, and capital formation.’’ potential for confusion.’’ In the EGC The Proposed Rules fall within this White Paper, the PCAOB staff stated Further, within the Global Networks that ‘‘[a]pproximately 99% of EGC filers 35 category. Having considered those of accounting firms, many of the were audited by accounting firms that affiliated accounting firms outside the statutory factors, we find that applying the Proposed Rules to the audits of also audit issuers that are not EGC United States are triennially inspected filers.’’ 45 audit firms. Many of these affiliated EGCs is necessary or appropriate in the public interest. The PCAOB Adopting Release also firms participate in the multi-national noted EGCs generally tend to have audits discussed above. Our The PCAOB provided information identified by the Board’s staff from understanding is that these 38 See PCAOB Proposal; see also, comment letters arrangements make it more practical for public sources, including data and provided to the PCAOB related to this matter, the Global Network Firms to adopt the analysis of EGCs that sets forth its views available at https://pcaobus.org/Rulemaking/Pages/ Proposed Rules simultaneously across as to why it believes the Proposed Rules docket-043-comments-auditing-accounting- estimates-fair-value-measurements.aspx. their respective networks. As a result, should apply to audits of EGCs. To inform consideration of the application 39 See PCAOB Adopting Release at 53. the Global Network Firms may not delay 40 See id at 53. The five Standard Industrial implementation for the triennially of auditing standards to audits of EGCs, Classification (SIC) codes with the highest total the PCAOB staff has also published a assets as a percentage of the total assets for the EGC population are: (i) Real estate investment trusts; (ii) 34 The CCMC Letter references differences in white paper that provides general state commercial banks; (iii) national commercial considering a phased implementation approach for information about characteristics of banks; (iv) crude petroleum and natural gas; and (v) an auditor performance standard as compared to an 37 EGCs (‘‘EGC White Paper’’). In pharmaceutical preparations. See EGC White Paper auditor reporting standard, which is why it did not addition, the Board sought public input at 14–15. In the PCAOB Adopting Release, the suggest a phased implementation approach based Board noted that financial statements of companies on issuer size similar to the auditor communicating on the application of the Proposed Rules operating in these industries would likely have critical audit matters in accordance with AS 3101, accounting estimates that include, for example, The Auditor’s Report on an Audit of Financial 36 See PCAOB Adopting Release at 56. asset impairments and allowances for loan losses. Statements When the Auditor Expresses an 37 See Characteristics of Emerging Growth 41 See PCAOB Adopting Release at 55–56. Unqualified Opinion. Companies as of November 15, 2017 (Oct. 11, 2018), 42 35 See PCAOB website for a listing of ‘‘Global available at https://pcaobus.org/EconomicAnd See id at 54. Networks’’ and further discussion, available at RiskAnalysis/Documents/White-Paper- 43 See id at 45. https://pcaobus.org/Registration/Firms/Pages/ Characteristics-Emerging-Growth-Companies- 44 See id at 53. GlobalNetworkFirms.aspx. November-2017.pdf. 45 See EGC White Paper at 20.

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shorter financial reporting histories and By the Commission. order approves the Proposed Rules, as a result, there is less information Eduardo A. Aleman, which we find to be consistent with the available to investors regarding such Deputy Secretary. requirements of the Sarbanes-Oxley Act companies relative to the broader [FR Doc. 2019–14411 Filed 7–5–19; 8:45 am] and the securities laws and necessary or 46 population of public companies. As BILLING CODE 8011–01–P appropriate in the public interest or for such, the Proposed Rules, which are the protection of investors. intended to enhance audit quality, II. Description of the Proposed Rules could increase the credibility of SECURITIES AND EXCHANGE financial statement disclosures by COMMISSION On December 20, 2018, the Board EGCs.47 adopted amendments to auditing [Release No. 34–86270; File No. PCAOB– We agree with the Board’s analysis. standards for using the work of 2019–006] 7 We believe the Proposed Rules will specialists. The Proposed Rules are benefit EGCs at least as much as non- Public Company Accounting Oversight intended to strengthen the requirements that apply when auditors use the work EGCs, in part, because of the prevalence Board; Order Granting Approval of of specialists in an audit.8 The Proposed of accounting estimates in financial Amendments to Auditing Standards for Rules relate to an auditor’s evaluation of statements of many EGCs. Specifically, Auditor’s Use of the Work of the work of a company’s specialist, we agree with the Board applying the Specialists Proposed Rules to EGCs would be whether employed or engaged by the consistent with the objective of the July 1, 2019. company, and apply a supervisory approach to both auditor-employed and Proposed Rules to provide a more I. Introduction uniform, risk-based approach to auditor-engaged specialists. On March 20, 2019, the Public auditing accounting estimates but also A. Changes to PCAOB Standards Company Accounting Oversight Board provide a scalable approach for firms of The Proposed Rules primarily amend all sizes. Additionally, we also agree (the ‘‘Board’’ or the ‘‘PCAOB’’) filed with the Securities and Exchange two existing PCAOB auditing standards with the Board that Proposed Rules and retitle and replace a third auditing could increase the credibility of the Commission (the ‘‘Commission’’), 1 standard.9 The Proposed Rules will financial statement disclosures by EGCs. pursuant to Section 107(b) of the Sarbanes-Oxley Act of 2002 (the make the following changes to existing As such, after considering the ‘‘Sarbanes-Oxley Act’’) and Section requirements: protection of investors and whether the • 19(b) 2 of the Securities Exchange Act of Amend AS 1105 action will promote efficiency, Æ 1934 (the ‘‘Exchange Act’’), a proposal Adds a new Appendix A that competition, and capital formation, we to adopt amendments to auditing supplements the requirements in AS believe there is a sufficient basis to standards for auditor’s use of the work 1105 for circumstances when the determine that applying the Proposed of specialists (collectively, the auditor uses the work of the company’s Rules to the audits of EGCs is necessary ‘‘Proposed Rules’’).3 The Proposed specialist as audit evidence, related to: or appropriate in the public interest. • Obtaining an understanding of the Rules were published for comment in work and report(s), or equivalent V. Conclusion the Federal Register on April 4, 2019.4 communication, of the company’s At the time the notice was issued, the The Commission has carefully specialist(s) and related company Commission extended to July 3, 2019 reviewed and considered the Proposed processes and controls; Rules, the information submitted the date by which the Commission • Obtaining an understanding of and should take action on the Proposed assessing the knowledge, skill, and therewith by the PCAOB, and the 5 Rules. We received four comment ability of a company’s specialist and the comment letters received. In connection 6 with the PCAOB’s filing and the letters in response to the notice. This entity that employs the specialist (if other than the company) and the Commission’s review, 1 15 U.S.C. 7217(b). relationship to the company of the A. The Commission finds that the 2 15 U.S.C. 78s(b). Proposed Rules are consistent with the 3 The PCAOB staff originally issued a staff specialist and the entity that employs requirements of the Sarbanes-Oxley Act consultation paper on this matter in 2015. See The the specialist (if other than the and the securities laws and are Auditor’s Use of the Work of Specialists, PCAOB company); and necessary or appropriate in the public Staff Consultation Paper No. 2015–01 (May 28, 2015), available at https://pcaobus.org/Standards/ order noticing the Proposed Rules are available on interest or for the protection of Documents/SCP-2015-01_The_Auditor’s_Use_of_ _ _ _ the Commission’s website at https://www.sec.gov/ investors; and the Work of Specialists.pdf. In 2017, the Board comments/pcaob-2019-03/pcaob201903.htm. issued a proposed rule. See Proposed Amendments B. Separately, the Commission finds 7 See Amendments to Auditing Standards for to Auditing Standards for Auditor’s Use of the Work Auditor’s Use of the Work of Specialists, PCAOB that the application of the Proposed of Specialists, PCAOB Release No. 2017–003 (June Rules to the audits of EGCs is necessary Release No. 2018–006 (Dec. 20, 2018) (‘‘PCAOB 1, 2017) (‘‘PCAOB Proposal’’), available at https:// Adopting Release’’), available at https:// or appropriate in the public interest, pcaobus.org/Rulemaking/Docket044/2017-003- pcaobus.org/Rulemaking/Docket044/2018-006- after considering the protection of specialists-proposed-rule.pdf. specialists-final-rule.pdf. 4 investors and whether the action will See Release No. 34–85435, Public Company 8 In the Proposed Rules, a specialist is defined Accounting Oversight Board; Notice of Filing of promote efficiency, competition, and generally as a person (or firm) possessing special Proposed Rules on Amendments to Auditing skill or knowledge in a particular field other than capital formation. Standards for Auditor’s Use of the Work of accounting or auditing. It is therefore ordered, pursuant to Specialists, (Mar. 28, 2019), 84 FR 13442 (Apr. 4, 9 The Proposed Rules: (1) Add an appendix to Section 107 of the Sarbanes-Oxley Act 2019). Auditing Standard (‘‘AS’’) 1105, Audit Evidence, 5 See id. and Section 19(b)(2) of the Exchange with supplemental requirements for using the work 6 We received comment letters from Deloitte & of a company’s specialist as audit evidence; (2) add Act, that the Proposed Rules (File No. Touche LLP, April 10, 2019 (‘‘Deloitte Letter’’); the an appendix to AS 1201, Supervision of the Audit PCAOB–2019–005) be and hereby are Council of Institutional Investors, April 18, 2019 Engagement, with supplemental requirements for approved. (‘‘CII Letter’’); PricewaterhouseCoopers LLP, April supervising an auditor-employed specialist; and (3) 25, 2019 (‘‘PwC Letter’’); and the Center for Capital replace existing AS 1210, Using the Work of a Markets Competitiveness, U.S. Chamber of Specialist, with an updated standard titled, Using 46 See PCAOB Adopting Release at 54. Commerce, April 25, 2019 (‘‘CCMC Letter’’). Copies the Work of an Auditor-Engaged Specialist, for 47 See id at 54. of the comment letters received on the Commission using the work of an auditor-engaged specialist.

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• Performing procedures to evaluate performed and reviewing and evaluating the Sarbanes-Oxley Act and the the work of a company’s specialist, the specialist’s work that parallel the securities laws or are necessary or including evaluating: (i) The data, final amendments to AS 1201 for appropriate in the public interest or for significant assumptions, and methods auditor-employed specialists; the protection of investors.16 In making (which may include models) used by Æ Sets forth factors for determining this determination, we have considered the specialist, and (ii) the relevance and the necessary extent of review of the the comments we received, as well as reliability of the specialist’s work and work of the auditor-engaged specialist; the feedback received and modifications its relationship to the relevant assertion. Æ Amends requirements related to made by the PCAOB throughout its o Aligns the requirements for using assessing the knowledge, skill, ability, rulemaking process. The discussion the work of a company’s specialist with and objectivity of the auditor-engaged below addresses the significant points the risk assessment standards 10 and the specialist; and raised in the comment letters we Æ standard and related amendments Describes objectivity, for purposes received. adopted by the Board on auditing of the standard, as the auditor-engaged A. General Support for the Proposed accounting estimates, including fair specialist’s ability to exercise impartial Rules value measurements; and judgment on all issues encompassed by Æ Sets forth factors for determining the specialist’s work related to the audit; Commenters generally supported the the necessary evidence to support the and specify the auditor’s obligations Proposed Rules, including the objective auditor’s conclusion regarding a when the specialist or the entity that to strengthen the requirements that relevant assertion when using the work employs the specialist has a relationship apply when auditors use the work of of a company’s specialist. with the company that affects the specialists in an audit.17 One • Amend AS 1201 specialist’s objectivity. commenter noted that the proposed Æ Adds a new Appendix C that B. Applicability and Effective Date amendments address the need to supplements the requirements for differentiate, define, and provide The Proposed Rules would be applying the supervisory principles in scalability of the requirements based on effective for audits of financial AS 1201.05–.06 when using the work of the nature of a specialist’s involvement statements for fiscal years ending on or an auditor-employed specialist to assist in the context of an audit as well as the after December 15, 2020. The PCAOB the auditor in obtaining or evaluating identified risk of material misstatement has proposed application of the audit evidence, including requirements to which the specialist’s work relates, Proposed Rules to include audits of related to: which the commenter indicated will emerging growth companies (‘‘EGCs’’),11 • Informing the auditor-employed achieve greater consistency in as discussed in Section IV below, and specialist of the work to be performed; practice.18 Another commenter agreed audits of brokers and dealers under • Coordinating the work of the with the Board that the Proposed Rules Exchange Act Rule 17a–5. auditor-employed specialists with the will benefit investors ‘‘because the work of other engagement team III. Comment Letters application of the requirements should members; and result in more consistently rigorous • Reviewing and evaluating whether The comment period on the Proposed Rules ended on April 25, 2019. We practices among auditors when using the work of the auditor-employed the work of a company’s specialist in specialist provides sufficient received four comment letters from accounting firms, an investor their audits, as well as a more consistent appropriate evidence. Evaluating the approach to the supervision of auditor- work of the specialist includes association, and an issuer organization.12 Commenters generally employed and auditor-engaged 19 evaluating whether the work is in 13 specialists.’’ accordance with the auditor’s supported the Proposed Rules. Most understanding with the specialist and commenters encouraged us to support B. Implementation Efforts the PCAOB’s plans to monitor whether the specialist’s findings and Most commenters noted their desire conclusions are consistent with, among implementation, conduct post implementation review, or monitor for ongoing monitoring by the PCAOB if other things, the work performed by the the Proposed Rules are approved.20 Two specialist. advancements in technology that may affect application of the Proposed commenters specifically supported the Æ 21 Sets forth factors for determining 14 PCAOB’s plan to monitor the necessary extent of supervision of Rules. One commenter also raised the work of the auditor-employed concerns regarding the effective date due to other financial reporting 16 See Section 107(b)(3) of the Sarbanes-Oxley specialist. Act. The Sarbanes-Oxley Act also specifies that the • Replace existing AS 1210 activities that need to be implemented provisions of Section 19(b) of the Exchange Act Æ Replaces the existing standard with and the potential impact on smaller shall govern the proposed rules of the Board. See 15 AS 1210, as amended, which establishes audit firms. Section 107(b)(4) of the Sarbanes-Oxley Act. Section 19 of the Exchange Act covers the requirements for using the work of an The Sarbanes-Oxley Act requires us to determine whether the Proposed Rules registration, responsibilities, and oversight of self- auditor-engaged specialist to assist the regulatory organizations. Under the procedures auditor in obtaining or evaluating audit are consistent with the requirements of prescribed by the Sarbanes-Oxley Act and Section evidence; 19(b)(2) of the Exchange Act, the Commission must Æ 11 The term ‘‘emerging growth company’’ is either approve or disapprove, or institute Includes requirements for reaching defined in Section 3(a)(80) of the Exchange Act (15 proceedings to determine whether the proposed an understanding with an auditor- U.S.C. 78c(a)(80)). See also Release No. 33–10332 rules of the Board should be disapproved; and these engaged specialist on the work to be Inflation Adjustments and Other Technical procedures do not expressly permit the Commission Amendments Under Titles I and III of the JOBS Act to amend or supplement the proposed rules of the (Mar. 31, 2017), 82 FR 17545 (Apr. 12, 2017). Board. 10 The Board’s ‘‘risk assessment standards’’ 12 17 See Deloitte Letter, CII Letter, PwC Letter, and include AS 1101, Audit Risk; AS 1105; AS 1201; See Deloitte Letter, PwC Letter, CII Letter, and CCMC Letter. AS 2101, Audit Planning; AS 2105, Consideration CCMC Letter. 18 of Materiality in Planning and Performing an Audit; 13 See Deloitte Letter, PwC Letter, CII Letter, and See Deloitte Letter. AS 2110, Identifying and Assessing Risks of CCMC Letter. 19 See CII Letter. Material Misstatement; AS 2301, The Auditor’s 14 See e.g., Deloitte Letter, PwC Letter, and CCMC 20 See e.g., Deloitte Letter, PwC Letter, and CCMC Responses to the Risks of Material Misstatement; Letter. Letter. and AS 2810, Evaluating Audit Results. 15 See CCMC Letter. 21 See PCAOB Adopting Release at 5 and 60.

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implementation, including advances in of audits for fiscal years ending on or triennially inspected audit firm as it technology and any related effects on after December 15, 2021, while also would be instructed to implement the the application of the proposed permitting earlier implementation since Proposed Rules on individual amendments.22 Another commenter smaller audit firms may be engagements even though it may not recommended that the Commission, as disproportionally impacted.29 The have updated its methodologies or part of its oversight of the PCAOB, commenter further expressed the belief trained its professionals on the should request that the PCAOB that a phased implementation may Proposed Rules, which could have a periodically update the Commission on facilitate post-implementation reviews negative effect on audit quality. the PCAOB’s activities for monitoring of the Proposed Rules.30 Further, within the Global Networks the implementation of the Proposed In the PCAOB Adopting Release, the of accounting firms,33 many of the Rules along with the PCAOB’s findings Board recognized the effort required for affiliated accounting firms outside the and responses to these activities, other implementation efforts, but stated United States are triennially inspected including the PCAOB’s plans for a post- the effective date determined by the audit firms. Many of these affiliated implementation review.23 Board was designed to provide auditors firms participate in the multi-national In the PCAOB Adopting Release, the with a reasonable period of time to audits discussed above. Our Board stated it would monitor implement the Proposed Rules, without understanding is that these implementation to determine whether unduly delaying the intended benefits arrangements make it more practical for additional interpretive guidance is of the Proposed Rules.31 the Global Network Firms to adopt the necessary, including monitoring the We believe the Board has Proposed Rules simultaneously across advancement of technology.24 In appropriately balanced the amount of their respective networks. As a result, addition, the PCAOB has an established time needed by audit firms to the Global Network Firms may not delay program to conduct post- implement the Proposed Rules with the implementation for the triennially implementation reviews of its rules and objectives of, and benefits obtained inspected audit firms within their standards to evaluate the overall effect from, the Proposed Rules. In this regard, network. of significant rulemakings.25 we note that, aside from the commenter Based on these considerations, we do We acknowledge the importance of who suggested that the Commission not believe a phased implementation monitoring the implementation of the consider a phased implementation approach for the Proposed Rules, Proposed Rules. The Commission staff approach, we received no other including providing triennially works closely with the PCAOB as part comments from audit firms, including inspected audit firms with the option to of our general oversight mandate.26 As triennially inspected audit firms, delay implementation, is necessary or part of that oversight, Commission staff requesting a phased implementation. appropriate in the public interest or for will keep itself apprised of the PCAOB’s In addition, there could be practical the protection of investors. activities for monitoring the implications of allowing for a phased IV. Effect on Emerging Growth implementation of the Proposed Rules implementation approach related to an Companies auditor performance standard.32 For and update the Commission, as In the PCAOB Adopting Release, the necessary. example, audits of multi-national companies often involve the work of Board recommended that the A. The Effective Date of the Proposed more than one auditor conducted in Commission determine that the Rules accordance with AS 1205, Part of the Proposed Rules apply to audits of 34 Audit Performed by Other Independent EGCs. Section 103(a)(3)(C) of the As noted above, the Proposed Rules Sarbanes-Oxley Act, as amended by would be effective for audits of financial Auditors (‘‘AS 1205’’), wherein a principal auditor may provide Section 104 of the Jumpstart Our statements for fiscal years ending on or Business Startups Act of 2012, requires after December 15, 2020. One instructions to the other auditors. Under a phased implementation approach, an that any rules of the Board ‘‘requiring commenter expressed concerns related mandatory audit firm rotation or a to the effective date as a result of other annually inspected audit firm serving as the principal auditor may instruct a supplement to the auditor’s report in financial reporting activities, including which the auditor would be required to upcoming effective dates of certain triennially inspected audit firm to follow the Proposed Rules before the provide additional information about Financial Accounting Standards Board the audit and the financial statements of (‘‘FASB’’) projects, other PCAOB triennially inspected audit firm has implemented the Proposed Rules. This the issuer (auditor discussion and standards, and a view that smaller audit analysis)’’ shall not apply to an audit of approach could create challenges for the firms may be disproportionately an EGC. The provisions of the Proposed impacted.27 The commenter suggested a Rules do not fall into these categories. phased implementation of the Proposed but no more than 100 issuers. An audit firm is required to be inspected on an annual basis if Section 103(a)(3)(C) further provides Rules. Specifically, the commenter during the prior calendar year, it issued audit that ‘‘[a]ny additional rules’’ adopted by recommended, as an example, that the reports for more than 100 issuers (‘‘annually the PCAOB after April 5, 2012, do not Commission allow triennially inspected inspected audit firms). See PCAOB Rule 4003, apply to audits of EGCs ‘‘unless the audit firms 28 to elect an effective date Frequency of Inspections, available at https:// pcaobus.org/Rules/Pages/Section_4.aspx. Commission determines that the 29 See CCMC letter. application of such additional 22 See Deloitte Letter and CCMC Letter. 30 See id. requirements is necessary or appropriate 23 See CCMC Letter. 31 See PCAOB Adopting Release at 71. in the public interest, after considering 24 See PCAOB Adopting Release at 5 and 60. 32 The CCMC Letter references differences in the protection of investors and whether 25 See PCAOB website at https://pcaobus.org/ considering a phased implementation approach for the action will promote efficiency, EconomicAndRiskAnalysis/pir/Pages/default.aspx. auditor performance standard as compared to an 26 competition, and capital formation.’’ See Section 107 of the Sarbanes-Oxley Act. auditor reporting standard, which is why it did not 27 See CCMC Letter. suggest a phased implementation approach based 28 ‘‘Triennially inspected audit firms’’ are audit on issuer size similar to the auditor communicating 33 See PCAOB website for a listing of ‘‘Global firms that, in accordance with PCAOB Rule 4003(b), critical audit matters in accordance with AS 3101, Networks’’ and further discussion, available at are required to be inspected at least once in every The Auditor’s Report on an Audit of Financial https://pcaobus.org/Registration/Firms/Pages/ three calendar years if during that time, the audit Statements When the Auditor Expresses an GlobalNetworkFirms.aspx. firm issued an audit report for at least one issuer Unqualified Opinion. 34 See PCAOB Adopting Release at 69.

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The Proposed Rules fall within this to have auditors maintain two sets of comment letters received. In connection category. Having considered those methodologies related to using work of with the PCAOB’s filing and the statutory factors, we find that applying specialists. Commission’s review, the Proposed Rules to the audits of The Board recognized that even a A. The Commission finds that the EGCs is necessary or appropriate in the small increase in audit fees could Proposed Rules are consistent with the public interest. negatively affect the profitability and requirements of the Sarbanes-Oxley Act The PCAOB provided information competitiveness of EGCs. However, the and the securities laws and are identified by the Board’s staff from PCAOB Adopting Release notes that necessary or appropriate in the public public sources, including data and many EGCs are expected to experience interest or for the protection of analysis of EGCs that set forth its views minimal impact from the Proposed investors; and as to why it believes the Proposed Rules Rules. For example, for those EGCs that B. Separately, the Commission finds should apply to audits of EGCs. To use a company specialist,41 the that the application of the Proposed inform consideration of the application Proposed Rules relating to the auditor’s Rules to the audits of EGCs is necessary of auditing standards to audits of EGCs, use of the work of such specialists are or appropriate in the public interest, the PCAOB staff published a white risk-based and designed to be scalable to after considering the protection of paper that provides general information companies of varying size and investors and whether the action will about characteristics of EGCs (‘‘EGC complexity.42 White Paper’’).35 In addition, the Board The PCAOB Adopting Release also promote efficiency, competition, and sought public input on the application noted EGCs generally tend to have capital formation. of the Proposed Rules to the audits of shorter financial reporting histories and It is therefore ordered, pursuant to EGCs.36 Commenters who addressed as a result, there is less information Section 107 of the Sarbanes-Oxley Act this question generally supported available to investors regarding such and Section 19(b)(2) of the Exchange applying the Proposed Rules to audits of companies relative to the broader Act, that the Proposed Rules (File No. EGCs, citing that consistent population of public companies.43 As PCAOB–2019–006) be and hereby are requirements should apply for similar such, the Proposed Rules, which are approved. situations encountered in any audit of a intended to enhance audit quality, By the Commission. company, whether the company is an could increase the credibility of Eduardo A. Aleman, EGC or not, as well as that the benefits financial statement disclosures by Deputy Secretary. described in the Proposal would be EGCs.44 [FR Doc. 2019–14414 Filed 7–5–19; 8:45 am] applicable to EGCs.37 We agree with the Board’s analysis. As the Board observed in the PCAOB We believe the Proposed Rules will BILLING CODE 8011–01–P Adopting Release, ‘‘an analysis by the benefit EGCs at least as much as non- PCAOB staff . . . suggests that the EGCs, in part, because the prevalence SECURITIES AND EXCHANGE prevalence and significance of the use of and significance of the use of the work COMMISSION the work of specialists in audits of EGCs of specialists in audits of EGCs is is comparable to the prevalence and comparable to the prevalence and Sunshine Act Meetings significance of the use of the work of significance of the use of the work of specialists in audits of non-EGCs, for specialists in audits of non-EGCs. In TIME AND DATE: 2 p.m. on Thursday, July audit engagements by both smaller audit addition, we agree with the Board that, 11, 2019. firms and larger audit firms.’’ 38 given the scalability and risk-based PLACE: The meeting will be held at the Additionally, the PCAOB Adopting nature of the new audit requirements, Commission’s headquarters, 100 F Release noted that ‘‘any new PCAOB EGCs likely will experience only Street NE, Washington, DC 20549. standards and amendments to existing minimal cost impacts from the Proposed standards determined not to apply to Rules. Finally, we also agree with the STATUS: This meeting will be closed to the audits of EGCs would require Board the Proposed Rules could the public. auditors to address the differing increase the credibility of financial MATTERS TO BE CONSIDERED: requirements within their statement disclosures by EGCs. Commissioners, Counsel to the methodologies, which would also create As such, after considering the Commissioners, the Secretary to the 39 the potential for confusion.’’ In the protection of investors and whether the Commission, and recording secretaries EGC White Paper, the PCAOB staff action will promote efficiency, will attend the closed meeting. Certain stated that ‘‘[a]pproximately 99% of competition, and capital formation, we staff members who have an interest in EGC filers were audited by accounting believe there is a sufficient basis to the matters also may be present. firms that also audit issuers that are not determine that applying the Proposed In the event that the time, date, or EGC filers.’’ 40 As a result, there is a Rules to the audits of EGCs is necessary location of this meeting changes, an potential for confusion and complexity or appropriate in the public interest. announcement of the change, along with V. Conclusion the new time, date, and/or place of the 35 See Characteristics of Emerging Growth Companies as of November 15, 2017 (Oct. 11, 2018), The Commission has carefully meeting will be posted on the available at https://pcaobus.org/EconomicAnd reviewed and considered the Proposed Commission’s website at https:// RiskAnalysis/Documents/White-Paper- www.sec.gov. Characteristics-Emerging-Growth-Companies- Rules, the information submitted November-2017.pdf. therewith by the PCAOB, and the The General Counsel of the 36 See PCAOB Proposal; see also comment letters Commission, or his designee, has provided to the PCAOB related to this matter, 41 See PCAOB Adopting Release at 50, which certified that, in his opinion, one or available at https://pcaobus.org/Rulemaking/Pages/ discusses that the most significant impact on the more of the exemptions set forth in 5 docket-044-comments-auditors-use-work- final amendments related to costs for auditors is U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) specialists.aspx. expected to result from the requirements to evaluate 37 See PCAOB Adopting Release at 64. the work of a company’s specialist. and (10) and 17 CFR 200.402(a)(3), 38 See id at 66. 42 See id at 68. (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and 39 See id at 64. 43 See id at 65. (a)(10), permit consideration of the 40 See EGC White Paper at 20. 44 See id at 66. scheduled matters at the closed meeting.

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The subject matters of the closed disapproved.4 The Commission has report to FINRA a number of data meeting will consist of the following received thirteen comment letters on the elements, including some already topics: proposal.5 This order institutes specified by the rule, for new issues in Institution and settlement of proceedings under Section 19(b)(2)(B) of corporate debt securities.9 FINRA injunctive actions; the Act 6 to determine whether to proposes to require underwriters to Institution and settlement of approve or disapprove the proposed report all these data fields prior to the administrative proceedings; rule change. first transaction in the security. Resolution of litigation claims; and FINRA would disseminate the II. Summary of the Proposed Rule corporate bond new issue reference data Other matters relating to enforcement Change proceedings. collected under Rule 6760 upon At times, changes in Commission As described in more detail in the receipt.10 That data would be provided priorities require alterations in the Notice, FINRA proposes to establish a to subscribers for fees that FINRA states scheduling of meeting agenda items that new issue reference data service for are determined on a commercially may consist of adjudicatory, corporate bonds. FINRA states that its reasonable basis. In particular, FINRA examination, litigation, or regulatory proposal is in line with a proposes to make the corporate bond matters recommendation from the SEC Fixed new issue reference data available to Income Market Structure Advisory any person or organization for a fee of CONTACT PERSON FOR MORE INFORMATION: Committee, which recommended that For further information; please contact $250 per month if used for internal FINRA establish a new issue data Vanessa A. Countryman from the Office purposes only, and for a fee of $6,000 service which would contain specified per month where the subscriber of the Secretary at (202) 551–5400. data elements on TRACE-eligible retransmits or repackages the data for Dated: July 3, 2019. corporate bond new issues.7 delivery and dissemination outside the Vanessa A. Countryman, Specifically, FINRA is proposing to organization. FINRA notes that because Secretary. amend Rule 6760 to require that the charge includes unlimited 8 [FR Doc. 2019–14533 Filed 7–3–19; 11:15 am] underwriters subject to Rule 6760 redistribution rights, FINRA would BILLING CODE 8011–01–P assess it only once on the party that 4 See Securities Exchange Act Release No. 85911, subscribes to receive the data from 83 FR 24839 (May 29, 2019). FINRA. Accordingly, FINRA would not The Commission designated July 7, 2019, as the SECURITIES AND EXCHANGE date by which it should approve, disapprove, or assess any charge on firms that receive COMMISSION institute proceedings to determine whether to the data from data vendors or other disapprove the proposed rule change. market participants that have subscribed [Release No. 34–86256; File No. SR–FINRA– 5 See Letters from: (1) Cathy Scott, Director, Fixed for redistribution rights, nor would 2019–008] Income Forum, on behalf of The Credit Roundtable, dated April 29, 2019 (‘‘Credit Roundtable Letter’’); FINRA increase the amount charged to Self-Regulatory Organizations; (2) Salman Banaei, Executive Director, IHS Markit, the subscriber based on how often it dated April 29, 2019 (‘‘IHS Markit Letter’’); (3) redistributes the data. FINRA states that Financial Industry Regulatory David R. Burton, Senior Fellow in Economic Policy, Authority, Inc.; Order Instituting it anticipates that many market The Heritage Foundation, dated April 29, 2019 participants, including clearing firms Proceedings To Determine Whether To (‘‘Heritage Foundation Letter’’); (4) Tom Quaadman, Approve or Disapprove a Proposed Executive Vice President, U.S. Chamber of and correspondent firms, are likely to Commerce, dated April 29, 2019 (‘‘Chamber receive the data from data vendors to Rule Change To Establish a Corporate Letter’’); (5) Lynn Martin, President and COO, ICE Bond New Issue Reference Data which they currently subscribe in lieu Data Services, dated April 29, 2019 (‘‘ICE Data of developing processes to receive the Service Letter’’); (6) Tyler Gellasch, Executive Director, Healthy Markets Association, dated April 29, 2019 data directly from FINRA. July 1, 2019. (‘‘Healthy Markets Letter’’); (7) Greg Babyak, Global If the Commission approves the filing, Head of Regulatory Affairs, Bloomberg L.P. dated FINRA proposes to announce the I. Introduction April 29, 2019 (‘‘Bloomberg Letter’’); (8) Marshall Nicholson and Thomas S. Vales, ICE Bonds dated 9 In connection with the proposal, FINRA also On March 27, 2019, Financial April 29, 2019 (‘‘ICE Bonds Letter’’); (9) Christopher would make two technical, non-substantive, B. Killian, Managing Director, SIFMA, dated April Industry Regulatory Authority, Inc. clarifying edits to the definition of corporate debt 29, 2019 (‘‘SIFMA Letter’’); (10) Larry Tabb, TABB (‘‘FINRA’’) filed with the Securities and security that is currently located in FINRA Rule Group, dated May 15, 2019 (‘‘Tabb Letter’’); (11) 2232 (Customer Confirmations). First, FINRA would Exchange Commission (‘‘Commission’’), Larry Harris, Fred V. Keenan Chair in Finance, clarify that the definition of corporate debt security pursuant to Section 19(b)(1) of the U.S.C. Marshall School of Business, dated May 17, is limited to TRACE-Eligible Securities. 2019 (‘‘Harris Letter’’); (12) John Plansky, Executive Securities Exchange Act of 1934 Second, FINRA would update the definition of (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a Vice President and Chief Executive Officer, Charles River Development, dated May 24, 2019 (‘‘Charles corporate debt security to exclude the class of assets proposed rule change to establish a new River Letter’’); and (13) SEC Fixed Income Market defined as Securitized Products in Rule 6710(m), rather than Asset-Backed Securities, defined in Rule issue reference data service for Structure Advisory Committee, dated June 11, 2019 6710(cc). corporate bonds. The Commission (‘‘FIMSAC Letter’’). All comments on the proposed rule change are available at: https://www.sec.gov/ FINRA also proposes to relocate the revised published notice of filing of the comments/sr-finra-2019-008/srfinra2019008.htm. definition of corporate debt security into the TRACE Rule Series. FINRA believes it makes sense proposed rule change in the Federal 6 15 U.S.C. 78s(b)(2)(B). 3 to include the definition in Rule 6710 where it Register on April 8, 2019. On May 22, 7 See Fixed Income Market Structure Advisory would sit alongside a number of other TRACE 2019, the Commission designated a Committee Recommendation (October 29, 2018) definitions for fixed income asset types. FINRA longer period within which to approve available at: https://www.sec.gov/spotlight/fixed- would make corresponding technical edits to Rule the proposed rule change, disapprove income-advisory-committee/fimsac-corporate-bond- 2232 to refer to the relocated definition in Rule new-issue-reference-data-recommendation.pdf. 6710. the proposed rule change, or institute 8 As part of the proposal, FINRA would amend 10 FINRA states that under proposed Rule proceedings to determine whether the Rule 6760(a)(1) to clarify that underwriters subject 6760(d), there may be some information collected proposed rule change should be to the Rule must report required information for the under the Rule for security classification or other purpose of providing market participants in the purposes that would not be disseminated. This may corporate debt security markets with reliable and include, for example, information about ratings that 1 15 U.S.C. 78s(b)(1). timely new issue reference data to facilitate the is restricted by agreement. In addition, CUSIP 2 17 CFR 240.19b–4. trading and settling of these securities, in addition Global Services’ (‘‘CGS’’) information would not be 3 See Securities Exchange Act Release No. 85488 to the current purpose of facilitating trade reporting disseminated to subscribers that do not have a valid (April 2, 2019), 84 FR 13977 (‘‘Notice’’). and dissemination in TRACE-Eligible Securities. license regarding use of CGS data.

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effective date of the proposed rule better understand what would be proposed rule change should be change in a Regulatory Notice to be required to be reported.18 One approved or disapproved. Further, published no later than 90 days commenter stated that while it did not pursuant to Section 19(b)(2)(B) of the following publication of the Regulatory disagree with FINRA’s proposed data Act,29 the Commission is hereby Notice. The effective date will be no fields, FINRA should provide providing notice of the grounds for later than 270 days following information to support its selections of disapproval under consideration. The Commission approval. each of the proposed data fields.19 In Commission believes it is appropriate to institute proceedings at this time in III. Summary of the Comments addition, one commenter recommended FINRA combine certain proposed data view of the legal and policy issues Seven commenters expressly fields as well as include six additional raised by the proposal. Institution of supported the proposal.11 Several of data fields.20 proceedings does not indicate, however, these commenters stated that currently Four commenters asserted that FINRA that the Commission has reached any there is no uniform, universally did not provide sufficient justification conclusions with respect to any of the available mechanism for providing to support the need for the creation of issues involved. market participants with consistent and the new issue reference data service.21 In particular, the Commission is timely access to reference data about Three of those commenters further instituting proceedings to allow for corporate bonds on the day a newly asserted that the proposal would additional analysis of the proposed rule issued corporate bond commences diminish competition among private change’s consistency with: (1) Section trading.12 These commenters added that sector reference data providers, which 15A(b)(5) of the Act, which requires, access to reference data is necessary for could ultimately impede the quality of among other things, that FINRA rules valuing, as well as trading and settling data available to market participants.22 provide for the equitable allocation of 13 corporate bonds. As access to this In contrast, one commenter asserted that reasonable dues, fees and other charges reference data is not available to all the because of the limited set of data among members and issuers and other market participants prior to the proposed to be captured by FINRA, the persons using any facility or system beginning of trading in a new issue, proposal would not supplant private which FINRA operates or controls; 30 (2) commenters assert that certain market sector market data providers.23 Another Section 15A(b)(6) of the Act, which participants are currently at a commenter asserted that providing requires, among other things, that 14 competitive disadvantage. reference data in a manner similar to FINRA rules promote just and equitable Notwithstanding their support for the that proposed by FINRA promotes principles of trade, foster cooperation proposal, several of these commenters competition by reducing barriers to and coordination with persons engaged requested that FINRA make various entry for new entrants in the reference in regulating, clearing, settling, modifications or clarifications to its data provider market.24 processing information with respect to, proposal. One commenter noted that the Five commenters asserted that in and facilitating transactions in reference data ‘‘would allow for efficient order to meet its obligations under the securities, remove impediments to and functioning of trading’’ but stated that it Act, FINRA must provide more perfect the mechanism of a free and could be challenging for underwriters to information to justify the fees it open market, and, in general, protect provide all of the data elements prior to proposed to charge subscribers of the investors and the public interest; 31 and the first trade and instead requested that new issue reference data service.25 One (3) Section 15A(b)(9) of the Act, which underwriters only be required to report of these commenters further stated that requires that FINRA rules not impose certain information prior to the first the data should either be available for any burden on competition not trade and that the remaining free, or at a ‘‘truly low cost.’’ 26 Another necessary or appropriate in furtherance information should be reported within commenter asserted that the $6,000 per of the purposes of the Act.32 60 minutes of the first trade.15 Two month fee for redistribution could be ‘‘a commenters requested that FINRA V. Commission’s Solicitation of considerable additional expense’’ for its clarify the meaning of the ‘‘prior to the Comments members.27 first transaction’’ deadline for reporting The Commission requests that reference data to FINRA.16 Another IV. Proceedings To Determine Whether interested persons provide written commenter requested FINRA clarify the To Approve or Disapprove the FINRA submissions of their views, data, and process for underwriters to correct Proposal arguments with respect to the issues 17 erroneously reported reference data. The Commission is instituting raised by the proposal. In particular, the Several commenters requested FINRA proceedings pursuant to Section 19(b)(2) Commission invites the written views of provide further clarity regarding the of the Act 28 to determine whether the interested persons concerning whether definitions of certain data fields so as to the proposal is consistent with Sections 18 See ICE Data Letter, at 2–3; SIFMA Letter, at 15A(b)(5), 15A(b)(6) and 15A(b)(9) of 11 See IHS Markit Letter; ICE Data Letter; SIFMA 3; FIMSAC Letter, at 14. the Act, or any other provision of the Letter; ICE Bonds Letter; Harris Letter; Charles River 19 See Healthy Markets Letter, at 6. Letter; FIMSAC Letter. Act or rule or regulation thereunder. 20 See FIMSAC Letter, at 7–8, 10, 12–13. 12 See ICE Data Letter, at 1–2; ICE Bonds Letter, 21 See Heritage Foundation Letter, at 1; Chamber at 1–2; Charles River Letter, at 2; FIMSAC Letter, 29 15U.S.C. 78s(b)(2)(B). Section 19(b)(2)(B) of the Letter, at 2; Healthy Markets Letter, at 4–5; at 1–2. Act also provides that proceedings to determine Bloomberg Letter, at 9–10. 13 See ICE Data Letter, at 2; Charles River Letter, whether to disapprove a proposed rule change must 22 at 2; FIMSAC Letter, at 1–2. See Heritage Foundation Letter, at 1; Chamber be concluded within 180 days of the date of Letter, at 2; Bloomberg Letter, at 2–3. See also Tabb 14 See ICE Data Letter, at 2; ICE Bonds Letter, at publication of notice of the filing of the proposed Letter, at 2–3. 2; FIMSAC Letter, at 2. rule change. See id. The time for conclusion of the 23 See FIMSAC Letter, at 3. 15 See SIFMA Letter, at 1–2. See also Credit proceedings may be extended for up to 60 days if 24 Roundtable Letter, at 1 (cautioning that any data See Harris Letter, at 4. the Commission finds good cause for such provision requirements on underwriters not impede 25 See Chamber Letter, at 3–4; Healthy Markets extension and publishes its reasons for so finding, their ability to make markets in the new issue as Letter, at 5–6; SIFMA Letter, at 3–4; Bloomberg or if the self-regulatory organization consents to the soon as possible). Letter, at 6–9; Harris Letter, at 7. longer period. See id. 16 See ICE Data Letter, at 2; ICE Bonds Letter, at 26 See Harris Letter, at 7. 30 15 U.S.C. 78o–3(b)(5). 2. 27 See Credit Roundtable Letter, at 1. 31 15 U.S.C. 78o–3(b)(6). 17 See IHS Markit Letter, at 2–3. 28 15 U.S.C. 78s(b)(2). 32 15 U.S.C. 78o–3(b)(9).

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Although there do not appear to be any submitting comments are cautioned that System (‘‘PTS’’) and Participant Browser issues relevant to approval or we do not redact or edit personal Service (‘‘PBS’’),6 as more fully disapproval which would be facilitated identifying information from comment described below. by an oral presentation of views, data, submissions. You should submit only II. Clearing Agency’s Statement of the and arguments, the Commission will information that you wish to make Purpose of, and Statutory Basis for, the consider, pursuant to Rule 19b–4, any publicly available. All submissions Proposed Rule Change request for an opportunity to make an should refer to File Number SR–FINRA– oral presentation.33 2019–008 and should be submitted on In its filing with the Commission, the Such comments should be submitted or before July 29, 2019. Rebuttal clearing agency included statements by July 29, 2019. Rebuttal comments comments should be submitted by concerning the purpose of and basis for should be submitted by August 12, August 12, 2019. the proposed rule change and discussed any comments it received on the 2019. For the Commission, by the Division of Comments may be submitted by any Trading and Markets, pursuant to delegated proposed rule change. The text of these of the following methods: authority.34 statements may be examined at the places specified in Item IV below. The Electronic Comments Eduardo A. Aleman, Deputy Secretary. clearing agency has prepared • Use the Commission’s internet summaries, set forth in sections A, B, comment form (http://www.sec.gov/ [FR Doc. 2019–14401 Filed 7–5–19; 8:45 am] and C below, of the most significant rules/sro.shtml); or BILLING CODE 8011–01–P aspects of such statements. • Send an email to rule-comments@ sec.gov. Please include File Number SR– (A) Clearing Agency’s Statement of the FINRA–2019–008 on the subject line. SECURITIES AND EXCHANGE Purpose of, and Statutory Basis for, the COMMISSION Proposed Rule Change Paper Comments [Release No. 34–86255; File No. SR–DTC– 1. Purpose • Send paper comments in triplicate 2019–004] to Secretary, Securities and Exchange The purpose of the proposed rule Commission, 100 F Street NE, Self-Regulatory Organizations; The change is to amend the Guide to Washington, DC 20549–1090. Depository Trust Company; Notice of postpone the date for the retirement of All submissions should refer to File Filing and Immediate Effectiveness of the RIPS function on PTS and PBS, as Number SR–FINRA–2019–008. The file a Proposed Rule Change To Amend more fully described below. number should be included on the the Reorganizations Service Guide Background subject line if email is used. To help the July 1, 2019. On May 21, 2019, DTC filed with the Commission process and review your Pursuant to Section 19(b)(1) of the Commission a proposed rule change to, comments more efficiently, please use Securities Exchange Act of 1934 among other things, update its corporate only one method. The Commission will (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 action service by transitioning corporate post all comments on the Commission’s notice is hereby given that on June 26, action functions on PTS and PBS for the internet website (http://www.sec.gov/ 2019, The Depository Trust Company processing of reorganizations rules/sro.shtml). Copies of the (‘‘DTC’’) filed with the Securities and (‘‘Reorganizations’’) 7 to its Corporate submission, all subsequent Exchange Commission (‘‘Commission’’) Action Web (‘‘CA Web’’) 8 system.9 The amendments, all written statements the proposed rule change as described with respect to the proposed rule in Items I, II and III below, which Items 6 PTS and PBS are user interfaces for DTC’s change that are filed with the have been prepared by the clearing Settlement and Asset Services functions. PTS is Commission, and all written mainframe-based and PBS is web-based with a agency. DTC filed the proposed rule communications relating to the mainframe back-end. Participants may use either change pursuant to Section 19(b)(3)(A) proposed rule change between the PTS or PBS, as they are functionally equivalent. of the Act 3 and Rule 19b–4(f)(4) References to a particular PTS function in this rule Commission and any person, other than thereunder.4 The Commission is filing include the corresponding PBS function. those that may be withheld from the 7 publishing this notice to solicit DTC offers an array of services for processing public in accordance with the corporate action events. The services fall into three comments on the proposed rule change provisions of 5 U.S.C. 552, will be categories: (i) Distributions, such as cash and stock from interested persons. dividends, principal and interest, and capital gain available for website viewing and distributions; (ii) redemptions, such as full and printing in the Commission’s Public I. Clearing Agency’s Statement of the partial calls, final paydowns, and maturities; and Reference Room, 100 F Street NE, Terms of Substance of the Proposed (iii) Reorganizations, which include both Washington, DC 20549, on official Rule Change mandatory and voluntary reorganizations such as exchange offers, conversions, Dutch auctions, business days between the hours of The proposed rule change by DTC mergers, puts, reverse stock splits, tender offers, 10:00 a.m. and 3:00 p.m. Copies of such would revise the Reorganizations and warrant exercises. filing also will be available for Service Guide (‘‘Guide’’) 5 to postpone 8 In PTS/PBS, corporate actions are announced inspection and copying at the principal the date for the retirement of the RIPS using DTC proprietary codes to signify event types. office of FINRA. All comments received CA Web replaces DTC’s proprietary codes with (Reorganization Inquiry for Participants) market standard language. For example, a cash will be posted without change. Persons function on the Participant Terminal dividend payment that PTS/PBS identifies as a ‘‘08’’ function code is identified in CA Web as a 33 ‘‘Cash Dividend’’ event. Additionally, CA Web Section 19(b)(2) of the Act, as amended by the 34 17 CFR 200.30–3(a)(57). Securities Act Amendments of 1975, Public Law incorporates the entire lifecycle of an event into one 1 15 U.S.C. 78s(b)(1). 94–29 (June 4, 1975), grants the Commission platform with a unique corporate action identifier 2 flexibility to determine what type of proceeding— 17 CFR 240.19b–4. that follows the event through its lifecycle. CA Web either oral or notice and opportunity for written 3 15 U.S.C. 78s(b)(3)(A). gives Participants the ability to customize screen comments—is appropriate for consideration of a 4 17 CFR 240.19b–4(f)(4). displays and offers flexible methods for event particular proposal by a self-regulatory 5 Each capitalized term not otherwise defined search, neither of which is available in the PTS/PBS organization. See Securities Act Amendments of herein has its respective meaning as set forth in the systems. 1975, Senate Comm. on Banking, Housing & Urban Rules, By-Laws and Organization Certificate of DTC 9 See Securities Exchange Act Release No. 85986 Affairs, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (‘‘DTC Rules’’) and in the Guide, available at http:// (May 31, 2019), 84 FR 26466 (June 6, 2019) (SR– (1975). www.dtcc.com/legal/rules-and-procedures.aspx. DTC–2019–003).

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rule change provided that, at the with Section 17A(b)(3)(F) of the Act,13 the Commission of any written conclusion of the pilot test phase in Q2 for the reasons described below. comments received by DTC. of 2019, Reorganizations activity within Section 17(A)(b)(3)(F) of the Act, III. Date of Effectiveness of the the ADJI (Adjustment Inquiries), RIPS, requires, inter alia, that DTC Rules be Proposed Rule Change, and Timing for and SDAR Dept. C 10 (Same Day designed to promote the prompt and Commission Action Allocation Reporting) functions 11 will accurate clearance and settlement of be retired from PTS/PBS and the securities transactions.14 The proposed The foregoing rule change has become functionality will only be available on rule change would postpone the date for effective pursuant to Section 19(b)(3)(A) CA Web. DTC has been communicating the retirement of the RIPS function from of the Act 18 and paragraph (f) of Rule this change to Participants through CA PTS/PBS until further notice. By 19b–4 thereunder.19 At any time within Web review sessions, Important Notices, affording Participants additional time to 60 days of the filing of the proposed rule and industry outreach.12 test the Reorganizations change, the Commission summarily may Announcements function on CA Web temporarily suspend such rule change if Proposed Rule Change prior to the retirement of RIPS, the it appears to the Commission that such Subsequent to the May 21, 2019 rule proposed rule change would provide action is necessary or appropriate in the filing, DTC began to receive feedback Participants the opportunity to public interest, for the protection of from Participants indicating that they minimize potential business investors, or otherwise in furtherance of need additional time to test the parallel interruption in their processing of the purposes of the Act. RIPS functionality on CA Web, the reorganization events when the RIPS IV. Solicitation of Comments ‘‘Reorganizations Announcements’’ function is retired. Therefore, by function, before the retirement of the providing Participants with the Interested persons are invited to RIPS function on PTS/PBS. opportunity to minimize potential submit written data, views and arguments concerning the foregoing, In response to this feedback, with this business disruption in this manner, DTC believes that the proposed rule change including whether the proposed rule proposed rule change, DTC would change is consistent with the Act. postpone the date for the retirement of is designed to promote the prompt and accurate clearance and settlement of Comments may be submitted by any of the RIPS function on PTS/PBS. DTC the following methods: will continue the pilot test phase in securities transactions related to which the RIPS function would Reorganizations, consistent with Section Electronic Comments 17A(b)(3)(F) of the Act.15 continue to be available on PTS/PBS, • Use the Commission’s internet and its parallel Reorganizations (B) Clearing Agency’s Statement on comment form Announcements function would Burden on Competition (http://www.sec.gov/rules/sro.shtml); continue to be available on CA Web. A DTC believes that the proposed rule or new date for the retirement of the RIPS • change with respect to postponing the Send an email to rule-comments@ function from PTS/PBS would be date for the retirement of the RIPS sec.gov. Please include File Number SR– announced, subject to a future proposed function from PTS/PBS may impact DTC–2019–004 on the subject line. rule change and Important Notice issued competition by potentially reducing by DTC. The proposed rule change Paper Comments business interruption in Participants’ would not impact the retirement of PTS/ • Send paper comments in triplicate processing of reorganization events.16 PBS function ADJI and SDAR Dept. C. to Secretary, Securities and Exchange The proposed rule change would afford Pursuant to the proposed rule change, Commission, 100 F Street NE, Participants additional time to test the Washington, DC 20549. DTC would amend the Guide to reflect Reorganizations Announcements All submissions should refer to File the postponement of the RIPS function function on CA Web prior to the Number SR–DTC–2019–004. This file from PTS/PBS. retirement of RIPS, thereby providing number should be included on the Participants the opportunity to 2. Statutory Basis subject line if email is used. To help the minimize potential business Commission process and review your DTC believes that this proposal is interruption in their processing of comments more efficiently, please use consistent with the requirements of the reorganization events when the RIPS only one method. The Commission will Act and the rules and regulations function is retired. Therefore, DTC post all comments on the Commission’s thereunder applicable to a registered believes that the proposed rule change internet website (http://www.sec.gov/ clearing agency. Specifically, DTC with respect to postponing the date for rules/sro.shtml). Copies of the believes that this proposal is consistent the retirement of the RIPS function from submission, all subsequent PTS/PBS would not impose a burden on 10 amendments, all written statements The initial rule filing on May 21, 2019 competition, but may promote inadvertently referred to this function as SDAR with respect to the proposed rule competition.17 Dept ‘‘R’’, a related element of the SDAR function change that are filed with the that had already been retired. The Guide and (C) Clearing Agency’s Statement on Commission, and all written Participant outreach refer to the correct element of the function, SDAR Dept ‘‘C’’. Comments on the Proposed Rule communications relating to the 11 See PTS/PBS Function Guides, available at Change Received From Members, proposed rule change between the http://www.dtcc.com/settlement-and-asset-services/ Participants, or Others Commission and any person, other than edl-ptspbs-function-guides. Written comments relating to the those that may be withheld from the 12 See Important Notice B10792–19 (March 14, public in accordance with the 2019); Important Notice B8760–18 (June 7, 2018), proposed rule change have not been Important Notice B9072–18 (July 9, 2018) and solicited or received. DTC will notify provisions of 5 U.S.C. 552, will be Important Notice B9122–18 (July 26, 2018), available for website viewing and available at http://www.dtcc.com/legal/important- 13 15 U.S.C. 78q–1(b)(3)(F). printing in the Commission’s Public notices; and DTC Corporate Actions Product Update 14 Reference Room, 100 F Street NE, to SIFMA (October 11, 2018), available at https:// Id. www.sifma.org/wp-content/uploads/2017/05/ 15 Id. SIFMA-CAS_DTCC-Corporate-Actions-Update_ 16 15 U.S.C. 78q–1(b)(3)(I). 18 15 U.S.C. 78s(b)(3)(A). 2018.pdf. 17 Id. 19 17 CFR 240.19b–4(f).

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Washington, DC 20549 on official Dated: June 7, 2019. DEPARTMENT OF STATE business days between the hours of Brian J. Bulatao, [Delegation of Authority No. 473] 10:00 a.m. and 3:00 p.m. Copies of the Under Secretary of State for Management, filing also will be available for Department of State. Delegation of Authority Approval of inspection and copying at the principal [FR Doc. 2019–14454 Filed 7–5–19; 8:45 am] Construction Security Certifications to office of DTC and on DTCC’s website BILLING CODE 4710–33–P Congress (http://www.dtcc.com/legal/sec-rule- filings.aspx). All comments received By virtue of the authority vested in will be posted without change. Persons DEPARTMENT OF STATE the Secretary of State by the laws of the submitting comments are cautioned that United States, including 22 U.S.C. we do not redact or edit personal 2651a; the Diplomatic Security Act, identifying information from comment [Public Notice: 10817] codified in 22 U.S.C. 4801, et seq.; and submissions. You should submit only the Foreign Affairs Authorization Act, Notice of Determinations; Culturally information that you wish to make 1988 and 1989 (Pub. L. 100–204) (the Significant Objects Imported for available publicly. All submissions Act), as amended, I hereby delegate to Exhibition—Determinations: should refer to File Number SR–DTC– the Under Secretary for Management, to ‘‘Verrocchio: Sculptor and Painter of 2019–004 and should be submitted on the extent authorized by law, the Renaissance Florence’’ Exhibition or before July 29, 2019. authority to approve submission to For the Commission, by the Division of Congress of the certifications required SUMMARY: Notice is hereby given of the by section 160(a) of the Act. Trading and Markets, pursuant to delegated following determinations: I hereby 20 The authority delegated herein may authority. determine that certain objects to be Eduardo A. Aleman, also be exercised by the Deputy Under included in the exhibition ‘‘Verrocchio: Secretary for Management, to the extent Deputy Secretary. Sculptor and Painter of Renaissance authorized by law; and by the Secretary [FR Doc. 2019–14400 Filed 7–5–19; 8:45 am] Florence,’’ imported from abroad for and Deputy Secretary. BILLING CODE 8011–01–P temporary exhibition within the United This delegation does not repeal or States, are of cultural significance. The amend any other delegation currently in objects are imported pursuant to loan effect. Any act, authority, or procedure DEPARTMENT OF STATE agreements with the foreign owners or subject to, or affected by, this delegation custodians. I also determine that the shall be deemed to be such act, [Delegation of Authority No. 471] exhibition or display of the exhibit authority, or procedure as amended objects at the National Gallery of Art, from time to time. Re-Delegation of Authority To Invoke Washington, District of Columbia, from This delegation of authority shall be the Law Enforcement Privilege on or about September 15, 2019, until published in the Federal Register. Information Relating To Vetting of on or about January 12, 2020, and at Certain Refugee Applicants Dated: June 19, 2019. possible additional exhibitions or Michael R. Pompeo, By virtue of the authority delegated to venues yet to be determined, is in the Secretary of State, Department of State. national interest. I have ordered that the Under Secretary of State for [FR Doc. 2019–14455 Filed 7–5–19; 8:45 am] Public Notice of these determinations be Management by the laws of the United BILLING CODE 4710–43–P States, as delegated by Department of published in the Federal Register. State Delegation of Authority No. 462, I FOR FURTHER INFORMATION CONTACT: hereby re-delegate to the Director of Elliot Chiu, Attorney-Adviser, Office of SURFACE TRANSPORTATION BOARD Admissions for the Bureau of the Legal Adviser, U.S. Department of [Docket No. AB 33 (Sub-No. 339X)] Population, Refugees, and Migration, to State (telephone: 202–632–6471; email: the extent authorized by law, the [email protected]). The mailing Union Pacific Railroad Company— authority to invoke the law enforcement address is U.S. Department of State, L/ privilege with respect to information Abandonment Exemption—In Harris PD, SA–5, Suite 5H03, Washington, DC and Chambers Counties, Tex. relating to security vetting of refugee 20522–0505. applicants to the U.S. Refugee Union Pacific Railroad Company (UP) Admissions Program. SUPPLEMENTARY INFORMATION: The has filed a verified notice of exemption This re-delegation of authority does foregoing determinations were made under 49 CFR pt. 1152 subpart F— not revoke or otherwise affect any other pursuant to the authority vested in me Exempt Abandonments to abandon a delegation of authority currently in by the Act of October 19, 1965 (79 Stat. 2.23-mile portion of the U.S. Steel effect. The authority re-delegated herein 985; 22 U.S.C. 2459), Executive Order Industrial Lead between milepost 2.4 in may also be exercised, to the extent 12047 of March 27, 1978, the Foreign Baytown and milepost 4.63 at the east authorized by law, by the Secretary, the Affairs Reform and Restructuring Act of side of Cedar Bayou, in Harris and Deputy Secretary, the Under Secretary 1998 (112 Stat. 2681, et seq.; 22 U.S.C. Chambers Counties, Tex. (the Line).1 and Deputy Under Secretary for 6501 note, et seq.), Delegation of The Line traverses U.S. Postal Service Management, the Under Secretary for Authority No. 234 of October 1, 1999, Zip Codes 77520 and 77523. Civilian Security, Democracy, and Delegation of Authority No. 236–3 of UP has certified that: (1) No local or Human Rights, and the Assistant August 28, 2000, and Delegation of overhead traffic has moved over the Secretary for Population, Refugees, and Authority No. 236–28 of June 10, 2019. Line for at least two years; (2) there is Migration. This re-delegation is effective upon Rick A. Ruth, 1 UP previously obtained authority to abandon signature and will be published in the Senior Advisor, Bureau of Educational and the Line, but did not file a notice of consummation Federal Register. Cultural Affairs, Department of State. within the time period prescribed by 49 CFR 1152.29(e)(2). See Union Pac. R.R.—Aban. [FR Doc. 2019–14421 Filed 7–5–19; 8:45 am] Exemption—In Harris & Chambers Ctys., Tex., AB 20 17 CFR 200.30–3(a)(12). BILLING CODE 4710–05–P 33 (Sub-No. 324X) (STB served Mar. 29, 2017).

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no need to reroute any traffic over other If the verified notice contains false or Marine Corps (USMC) Supplemental lines; (3) no formal complaint filed by misleading information, the exemption Environmental Analysis for Temporary a user of rail service on the Line (or by is void ab initio. Activation of Playas Military Operations a state or local government entity acting UP has filed a combined Area (SEA) for the establishment of a on behalf of such user) regarding environmental and historic report that Temporary Military Operating Area cessation of service over the Line either addresses the potential effects of the (TMOA) in Playas, New Mexico. This is pending with the Surface abandonment on the environment and notice announces that based on its Transportation Board (Board) or with historic resources. OEA will issue an independent review and evaluation of any U.S. District Court or has been environmental assessment (EA) by July the SEA and supporting documents, the decided in favor of complainant within 12, 2019. The EA will be available to FAA is adopting the SEA and issuing a the two-year period; and (4) the interested persons on the Board’s Finding of No Significant Impact requirements at 49 CFR 1105.12 website, by writing to OEA, or by calling (FONSI)/Record of Decision (ROD) for (newspaper publication), 49 CFR OEA at (202) 245–0305. Assistance for the establishment of the Playas TMOA. 1152.50(d)(1) (notice to governmental the hearing impaired is available FOR FURTHER INFORMATION CONTACT: agencies), 49 CFR 1105.11 (transmittal through the Federal Relay Service at Paula Miller, Airspace Policy and letter), 49 CFR 1105.7 and 1105.8 (800) 877–8339. Comments on Regulations Group, Office of Airspace (environment and historic report) have environmental and historic preservation Services, Federal Aviation been met. matters must be filed within 15 days Administration, 800 Independence As a condition to this exemption, any after the EA becomes available to the Avenue SW, Washington, DC 20591; employee adversely affected by the public. telephone: (202) 267–7378. abandonment shall be protected under Environmental, historic preservation, SUPPLEMENTARY INFORMATION: Oregon Short Line Railroad— public use, or interim trail use/rail Abandonment Portion Goshen Branch banking conditions will be imposed, Background Between Firth & Ammon, in Bingham & where appropriate, in a subsequent The USMC has established the Bonneville Counties, Idaho, 360 I.C.C. decision. Tactical Recovery of Air Craft and 91 (1979). To address whether this Pursuant to the provisions of 49 CFR Personnel (TRAP), Training and condition adequately protects affected 1152.29(e)(2), UP shall file a notice of Readiness Certification Exercise employees, a petition for partial consummation with the Board to signify (CERTEX) as a mission essential task revocation under 49 U.S.C. 10502(d) that it has exercised the authority performed by assigned and briefed must be filed. granted and fully abandoned the Line. If aircrews for the specific purpose of Provided no formal expression of consummation has not been effected by recovery of personnel, equipment and/ intent to file an offer of financial UP’s filing of a notice of consummation or aircraft in a tactical situation when assistance (OFA) has been received,2 by July 8, 2020, and there are no legal survivors and the location have been this exemption will become effective on or regulatory barriers to consummation, confirmed. Commonly known as a August 7, 2019, unless stayed pending the authority to abandon will simulated rescue of a downed pilot, the reconsideration. Petitions to stay that do automatically expire. not involve environmental issues,3 Board decisions and notices are TRAP CERTEX requires use of aircraft formal expressions of intent to file an available at www.stb.gov. and ground forces in a closely OFA under 49 CFR 1152.27(c)(2),4 and coordinated set of actions to execute the Decided: July 1, 2019. rescue of personnel on the ground. A interim trail use/rail banking requests By the Board, Allison C. Davis, Director, under 49 CFR 1152.29 must be filed by TMOA is required for military aircraft Office of Proceedings. that support the exercise. July 18, 2019. Petitions to reopen or Tammy Lowry, requests for public use conditions under Clearance Clerk. Implementation 49 CFR 1152.28 must be filed by July 29, [FR Doc. 2019–14347 Filed 7–5–19; 8:45 am] After evaluating the aeronautical 2019, with the Surface Transportation BILLING CODE 4915–01–P study and the SEA, the FAA has issued Board, 395 E Street SW, Washington, DC a FONSI/ROD to establish the Playas 20423–0001. A copy of any petition filed with the TMOA for a period not to exceed one Board should be sent to UP’s DEPARTMENT OF TRANSPORTATION day during a six-day window from August 26–31, 2019. The Playas TMOA representative: Jeremy Berman, General Federal Aviation Administration Attorney, 1400 Douglas St. #1580, will be activated by publishing a Notice Omaha, NE 68179. to Airman (NOTAM) two cycles (56 Notice of Availability of the Finding of days) prior to the exercise in the Notices No Significant Impact/Record of to Airman Publication and by 2 Persons interested in submitting an OFA must Decision and Adoption of the United first file a formal expression of intent to file an publishing a NOTAM at least four hours offer, indicating the type of financial assistance they States Marine Corps Supplemental in advance. wish to provide (i.e., subsidy or purchase) and Environmental Analysis for the In accordance with Section 102 of the demonstrating that they are preliminarily Establishment of the Playas National Environmental Policy Act of financially responsible. See 49 CFR 1152.27(c)(2)(i). Temporary Military Operating Area 3 The Board will grant a stay if an informed 1969 (‘‘NEPA’’), the Council on decision on environmental issues (whether raised AGENCY: Federal Aviation Environmental Quality’s (‘‘CEQ’’) by a party or by the Board’s Office of Environmental Administration, Department of regulations implementing NEPA (40 Analysis (OEA) in its independent investigation) CFR parts 1500–1508), and other cannot be made before the exemption’s effective Transportation. date. See Exemption of Out-of-Serv. Rail Lines, 5 ACTION: Notice of availability of Finding applicable authorities, including the I.C.C.2d 377 (1989). Any request for a stay should of No Significant Impact/Record of FAA Order 1050.1F, Environmental be filed as soon as possible so that the Board may Decision. Impacts: Policies and Procedures, take appropriate action before the exemption’s paragraph 8–2, and FAA Order JO effective date. SUMMARY: 4 Filing fees for OFAs and trail use requests can The Federal Aviation 7400.2M, ‘‘Procedures for Handling be found at 49 CFR 1002.2(f)(25) and (27), Administration (FAA) announces its Airspace Matters,’’ paragraph 32–2–3, respectively. decision to adopt the United States the FAA has conducted an independent

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review and evaluation of the USMC’s will be included in the Department of the lateral boundaries of the surface area SEA, dated July 2018, and its supporting Transportation’s inventory of record of Class E airspace designated for an documents. As a cooperating agency systems. airport unless the person has received with responsibility for approving authorization to operate from the FAA. DATES: Written comments should be special use airspace (SUA) under 49 submitted on or before August 7, 2019. sUAS operators under part 107, who are also referred to as remote pilots in U.S.C. 40103(b)(3)(A), the FAA The Department may publish an provided subject matter expertise and command, may request waivers of amended Systems of Records Notice in coordinated with the USMC during the operational rules applicable to sUAS light of any comments received. This environmental review process. requirements maintaining visual line of new system will be effective FAA circularized the proposed action sight and yielding right of way to immediately and the modified routine from February 23, 2019 through April 1, manned aircraft, as well as prohibitions use effective August 7, 2019. 2019 in the areas required by JO on operations over people and in certain 7400.2M, which resulted in zero public ADDRESSES: You may submit comments, airspace pursuant to part 107. comments. The FONSI/ROD and SEA identified by docket number DOT–OST– The FAA is revising SORN 854 are available upon request by contacting 2019–0097 by any of the following because in 2018, Congress passed the Paula Miller at: Airspace Policy and methods: FAA Reauthorization Act of 2018, Regulations Group, Office of Airspace • Federal e-Rulemaking Portal: http:// which enacted 49 U.S.C. 44809(a) Services, Federal Aviation www.regulations.gov. Follow the requiring authorizations for limited Administration, 800 Independence instructions for submitting comments. recreational operators flying sUAS in Avenue SW, Washington, DC 20591; • Mail: Docket Management Facility, controlled airspace. Before the telephone: (202) 267–7378. U.S. Department of Transportation, 1200 enactment of § 44809(a), SORN 854 Issued in Des Moines, WA, on June 24, New Jersey Ave. SE, West Building covered only sUAS operators who 2019. Ground Floor, Room W12–140, operated under 14 CFR part 107. At that Shawn Kozica, Washington, DC 20590–0001. time, only Part 107 operators could • Hand Delivery or Courier: West Manager, Operations Support Group, Western submit requests for authorization, as Service Center. Building Ground Floor, Room W12–140, limited recreational operators as defined 1200 New Jersey Ave. SE, between 9 [FR Doc. 2019–14471 Filed 7–5–19; 8:45 am] under previous law were not required to a.m. and 5 p.m. ET, Monday through receive authorizations before flying in BILLING CODE 4910–13–P Friday, except Federal Holidays. controlled airspace. Now, both types of • Fax: (202) 493–2251. Instructions: operators (Part 107 and § 44809(a)) are DEPARTMENT OF TRANSPORTATION You must include the agency name and required to request and receive such docket number DOT–OST–2019–0097. authorizations. Office of the Secretary All comments received will be posted Additionally, the FAA is updating the without change to http:// SORN to account for two new systems [Docket No. DOT–OST–2019–0097] www.regulations.gov, including any through which sUAS operators can Privacy Act of 1974; Department of personal information provided. request for waivers and/or Transportation, Federal Aviation Privacy Act: Anyone is able to search authorizations. The first is a new web- Administration; DOT/FAA 854, Small the electronic form of all comments based system, which has replaced Unmanned Aircraft Systems (sUAS) received in any of our dockets by the previous paper forms. Using this web- Waivers and Authorizations name of the individual submitting the based system, sUAS operators who comment (or signing the comment, if determine to seek a waiver or an AGENCY: Federal Aviation submitted on behalf of an association, authorization may request such by Administration, Department of business, labor union, etc.). You may electronically completing a form on the Transportation. review the Department of FAA website. After reviewing the ACTION: Notice of a modified System of Transportation’s complete Privacy Act information the applicant provides, the Records. statement in the Federal Register FAA will determine whether it can published on April 11, 2000 (65 FR assure safety in the national airspace SUMMARY: In accordance with the 19477–78), or you may visit http:// when granting the waiver or Privacy Act of 1974, the United States DocketsInfo.dot.gov. Docket: For access authorization; often, such grants will Department of Transportation proposes to the docket to read background include provisions to which the to rename, update, and reissue a documents or comments received, go to requester must adhere, to mitigate the Department of Transportation (DOT) http://www.regulations.gov or to the risk associated with the waiver or system of records titled, ‘‘Department of street address listed above. Follow the authorization. Transportation Federal Aviation online instructions for accessing the Operators may now also request Administration; DOT/FAA 854, docket. authorizations through third parties Requests for Waivers and qualified to offer services by the FAA Authorizations Under 14 CFR part 107.’’ FOR FURTHER INFORMATION CONTACT: For under the Low Altitude Authorization This system of records allows the questions, please contact: Claire W. and Notification Capability (hereinafter Federal Aviation Administration (FAA) Barrett, Departmental Chief Privacy ‘‘LAANC’’). These third parties, called to collect and maintain records on Officer, Privacy Office, Department of UAS Service Suppliers (hereinafter individuals operating small unmanned Transportation, Washington, DC 20590; ‘‘USS’’), enter into agreements with the aircraft systems (hereinafter ‘‘sUAS’’) [email protected]; or 202.366.8135. FAA to automate and expedite the who request and receive authorizations SUPPLEMENTARY INFORMATION: Under process by which sUAS operators to fly their sUAS in controlled airspace, current law, persons flying sUAS under receive authorization to fly in the or waivers to fly their sUAS outside of the provisions of 14 CFR part 107 or aforementioned airspace from the FAA. the requirements of the Code of Federal flying sUAS in limited recreational The USS develop applications that Regulations. This updated system, operations pursuant to 49 U.S.C. enable operators to submit requests for Small Unmanned Aircraft Systems 44809(a) may not operate sUAS in Class authorization to the FAA where the (sUAS) Waivers and Authorizations, B, Class C, or Class D airspace or within requests are evaluated against pre-

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determined criteria contained in operating their sUAS in accordance A–108, and for consistency with other LAANC. This enables operators to with § 44809(a); however, the purpose departmental system of records notices. obtain authorizations quickly and for collecting information for all A. Description of Records efficiently to operate in Class B, C, D, categories of individuals otherwise and lateral boundaries of surface area E remains the same. The FAA’s regulations at 14 CFR part airspace designated for an airport. The • The records category section has 107 governing operation of sUAS number of USS available to the public been updated to reflect additional permits operators to apply for and the locations where LAANC is categories of information collected by certificates of waiver to allow a sUAS available is updated on the FAA the automated system for processing operation to deviate from certain website. authorizations. Specifically, the provisions of 14 CFR part 107 if the The following sections of this system following additional information will be FAA Administrator finds the operator of records notice have been updated: collected by this automated system: can safely conduct the proposed System name; authority; purpose; Specification of proposed sUAS operation under the terms of a categories of records; record source; operations; sUAS flight plan certificate of waiver. Operators flying routine uses; storage; retention and information (including geometry); under 14 CFR part 107 or flying limited disposal; and safeguards. airspace class(es); submission reference recreational operations under 49 U.S.C. 44809(a) may request authorizations to I. Background codes; and safety justifications for non- auto-authorized operations. enter controlled airspace (Class B, Class In accordance with the Privacy Act of • The records source section has been C, or Class D airspace, or within the 1974, 5 U.S.C. 552a, the Department of updated to reflect that records are lateral boundaries of the surface area of Transportation (DOT)/Federal Aviation Class E airspace designated for an obtained on behalf of individuals from Administration (FAA) proposes to airport). The FAA assesses requests for the USS, to include new automated rename, update, and reissue a DOT waivers on a case-specific basis that methods for requesting and receiving system of records titled, ‘‘DOT/FAA 854 considers the proposed sUAS operation, authorizations. Requests for Waivers and the unique operating environment, and • The routine use section has been Authorizations Under 14 CFR part 107.’’ the safety mitigations provided by that updated. Specifically, a system-specific This update results from the recently- operating environment. Accordingly, passed FAA Reauthorization Act of routine use allowing the sharing of this SORN covers documents relevant to 2018, which enacts 49 U.S.C. 44809(a). information to law enforcement has both waivers of certain provisions of Specifically, sUAS operators who meet been eliminated, as the FAA determined part 107 as well as authorizations to fly the requirements established in that it is duplicative of a departmental in controlled airspace. § 44809(a) are now required to request routine use. Further, a system-specific 1. Waivers and receive authorization from the FAA routine use has been added to allow the before flying their sUAS in controlled FAA to share waiver and authorization To obtain a certificate of waiver, an airspace. Prior to this legislation, only information with the NTSB in applicant must submit a request sUAS operators who operated in connection with its investigative containing a complete description of the accordance with FAA regulations at 14 responsibilities. These two changes to proposed operation and a justification, CFR part 107 were required to request the routine use section are further including supporting data and addressed below in section 1.B. documentation as necessary, to establish and receive these authorizations. • Accordingly, the previous iteration of Finally, OMB Circular A–108 the proposed operation can safely be this SORN applied only to individuals recommends that agencies include all conducted under the terms of the operating their sUAS in accordance routine uses in one notice rather than requested certificate of waiver. The FAA with Part 107. This update expands the incorporating general routine uses by expects that the time and effort the SORN’s scope to cover individuals reference; therefore, FAA is replacing operator will put into the analysis and operating their sUAS in accordance the routine use that referenced the data collection for the waiver with 49 U.S.C. 44809(a). Additionally, ‘‘Statement of General Routine Uses’’ application will be proportional to the the SORN is updated to reflect new with all of the general routine uses that specific relief requested. Similarly, the automated methods for requesting and apply to this system. This is merely a FAA anticipates that the time required receiving waivers and authorizations. technical change and does not for it to make a determination regarding Specifically, this update includes substantially affect any of the routine waiver requests will vary based on the changes to the following sections: uses for records of this system. complexity of the request. For example, • System name; authority; purpose; The storage, retention and disposal, a request for a major deviation from part categories of records; record source; and safeguard sections has been 107 for an operation that takes place in routine uses; storage; retention and updated remove the reference to 14 CFR a congested metropolitan area with disposal; and safeguards. part 107, therefore reflecting the heavy air traffic will likely require • The scope of this system of records expansion in scope of the system of significantly more data and analysis has expanded to include records on records to incorporate records on sUAS than a request for a minor deviation for sUAS operators who operate § 44809(a); operators who request waiver under 14 an operation that takes place in a accordingly, we are proposing to update CFR part 107 and those who request sparsely populated area with minimal the notice’s name to ‘‘Small Unmanned authorizations under both 14 CFR part air traffic. If a certificate of waiver is Aircraft Systems (sUAS) Waivers and 107 and 49 U.S.C. 44809(a). Previously, granted, that certificate may include Authorizations.’’ these sections referred only to 14 CFR additional conditions and limitations • The authorities section has likewise part 107. designed to ensure that the sUAS been updated to include 49 U.S.C. • Additionally, this notice includes operation can be conducted safely. The 44809(a) to reflect the new legal non-substantive changes to simplify and certificate-of-waiver process will allow authority requiring limited recreational clarify the language, formatting, and text the FAA to assess case-specific operators to request authorizations. of the previously published notice to information concerning a sUAS • The purpose section has also been align with the requirements of Office of operation that takes place in a unique updated to encompass individuals Management and Budget Memoranda operating environment and consider

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allowing additional operating flexibility make an approval (or denial) decision. sUAS operators who seek to apply for a that recognizes safety mitigations The appropriate ATC facility has the waiver, as operators will be able to provided by the specific operating best understanding of local airspace, its review prior grants of waivers and the environment. The FAA anticipates that usage, and traffic patterns and is in the accompanying special provisions in this process will also serve as a bridging best position to ascertain whether the their efforts to replicate successful mechanism for new and emerging proposed sUAS operation would pose a waiver applications. The FAA does not technologies; allowing the FAA to hazard to other users or the efficiency of plan to post records relevant to airspace permit testing and use of those the airspace, and procedures to authorizations on its website because technologies, as appropriate, before the implement to mitigate such hazards. airspace authorizations are unique to pertinent future rulemaking is complete. The ATC facility has the authority to each operation. Each airspace Information collected relevant to approve or deny aircraft operations authorization is specific to the location waivers include: Name of person based on traffic density, controller and time of the planned operation; requesting the waiver, contact workload, communications issues, or therefore, posting of airspace information for person applying for the any other type of operational issues that authorizations would not prove waiver (telephone number, mailing could potentially impact the safe and advantageous to prospective applicants. address, and email address); Remote efficient flow of air traffic in that Finally, this system of records notice pilot in command name; remote pilot in airspace. If necessary to approve a sUAS has been updated to include a new command’s airmen certification number operation, ATC may require mitigations routine use to allow disclosure of and rating; remote pilot in command such as altitude constraints and direct records to the National Transportation contact information; aircraft registration communication. ATC may deny Safety Board (NTSB) in connection with number; aircraft manufacturer name and requests that pose an unacceptable risk its investigative responsibilities. Such model; submission reference code; to the national airspace system (NAS) disclosure is compatible with the regulations subject to waiver; requested and cannot be mitigated. purposes of this system because this date and time operations will Information collected relevant to system is intended, in part, to provide commence and conclude under the airspace authorizations requested using for safety of the NAS. The NTSB may waiver; flight path information, the non-automated method include: require these records in the event that including but not limited to altitude and Aircraft operator name; aircraft owner an sUAS is involved in an aircraft coordinates; safety justification; name; name of person requesting the accident requiring NTSB investigation. description of proposed operations. authorization; contact information for Disclosure of these records to NTSB for the person applying for the 2. Airspace Authorizations this purpose ensures NTSB’s ability to authorization; remote pilot in command fully investigate such accidents and For airspace authorization requests to name; remote pilot in command contact therefore maintain safety of the NAS. operate a sUAS in Class B, Class C, information; remote pilot in command Class D or within the lateral boundaries certificate number; aircraft manufacturer II. Privacy Act of the surface area of Class E airspace name and model; aircraft registration The Privacy Act (5 U.S.C. 552a) designated for an airport, a remote pilot number; requested date and time governs the means by which the Federal in command may seek either automatic operations will commence and Government collects, maintains, and approval or a request for further conclude; requested altitude applicable uses personally identifiable information coordination from the FAA. Automatic to the authorization; and description of approvals are completed by checking proposed operations. (PII) in a System of Records. A ‘‘System against pre-determined FAA-approved Information collected relevant to of Records’’ is a group of any records altitude values and locations within the airspace authorizations requested using under the control of a Federal agency aforementioned airspace. Requests sent the automated method (LAANC) from which information about through the FAA website are manually include: Name of pilot in command; individuals is retrieved by name or checked against the pre-determined contact telephone number of remote other personal identifier. The Privacy values to either approve or deny the pilot in command; start date, time, and Act requires each agency to publish in request. As this method requires manual duration of operation; maximum the Federal Register a System of approval and is not scalable to the altitude; geometry; airspace class(es); Records notice (SORN) identifying and numbers of requests for authorization, submission reference code; safety describing each System of Records the time for the sUAS operator to receive a justification for non-auto-authorized agency maintains, including the response is variable and can take up to operation; and aircraft registration purposes for which the agency uses PII 90 days or more. Requests sent through number. in the system, the routine uses for LAANC are done through an automated which the agency discloses such process and operators receive near real B. System of Records information outside the agency, and time notice of either an approval or As described below in the Routine how individuals to whom a Privacy Act denial of the authorization request. Uses section of this notice, the FAA will record pertains can exercise their rights Requests for further coordination are make the following information under the Privacy Act (e.g., to determine those authorization requests for available to the public on an FAA if the system contains information about operations that are within the website: Waiver applications and them and to contest inaccurate aforementioned airspace and under 400 decisions, including any history of information). In accordance with 5 feet of altitude, but otherwise are a previous, pending, existing, or denied U.S.C. 552a(r), DOT has provided a location and altitude that has not been requests for waivers applicable to the report of this system of records to the pre-determined by the FAA to be safe sUAS at issue for purposes of the Office of Management and Budget and without further consideration. These waiver, and special provisions to Congress. requests for further coordination are applicable to the sUAS operation that is System Name and Number sent via either the FAA website or the subject of the request. Such through LAANC and routed to the local availability is compatible with the DOT/FAA—854 Small Unmanned Air Traffic Control facility where the purposes of this system because this Aircraft Systems (sUAS) Waivers and requested operation would take place to system is intended, in part, to educate Authorizations.

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SECURITY CLASSIFICATION: issued waiver or authorizations and SYSTEM SPECIFIC ROUTINE USES: Unclassified. records from this system may be used by 1. To the public, waiver applications FAA for enforcement purposes. and decisions, including any history of SYSTEM LOCATION: previous, pending, existing, or denied For waivers, the system will be CATEGORIES OF INDIVIDUALS COVERED BY THE requests for waivers applicable to the SYSTEM: located in the Commercial Operations sUAS at issue for purposes of the Branch, Flight Standards Service (AFS– Aircraft operators, aircraft owners, waiver, and special provisions 820), Federal Aviation Administration, persons requesting a waiver or applicable to the sUAS operation that is 800 Independence Avenue SW, authorization. the subject of the request. Email Washington, DC 20024. For airspace addresses and telephone numbers will authorizations, the system will be CATEGORIES OF RECORDS IN THE SYSTEM: not be disclosed pursuant to this located in the Emerging Technologies Aircraft operator name; Aircraft Routine Use. Airspace authorizations Team (AJV–115), Air Traffic owner name; Name of person requesting the FAA issues also will not be Organization, Federal Aviation a waiver or authorization; Contact disclosed pursuant to this Routine Use, Administration, 800 Independence information for person applying for except to the extent that an airspace Avenue SW, Washington, DC 20024. waiver or authorization: Mailing authorization is listed or summarized in SYSTEM MANAGER(S) AND ADDRESS: address, telephone number, and email the terms of a waiver. address of person submitting For waivers: Manager, Commercial 2. To law enforcement, when application for waiver or authorization; Operations Branch, Flight Standards necessary and relevant to a FAA Responses to inquiries concerning the Service (AFS–820), Federal Aviation enforcement activity. applicant’s previous and current Administration, 800 Independence 3. Disclose information to the waivers; Remote pilot in command Avenue SW, Washington, DC 20024. For National Transportation Safety Board name; Airmen Certification Number (in airspace authorizations: Manager, UAS (NTSB) in connection with its those individuals certificated under Tactical Operations Section, Air Traffic investigation responsibilities. another program prior to 2013 and have Organization, Federal Aviation not requested a change of certificate DEPARTMENTAL ROUTINE USES: Administration, 800 Independence number the airmen certificate number 4. In the event that a system of records Avenue SW, Washington, DC 20024. may be the individual’s Social Security maintained by DOT to carry out its AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Number); Contact information for functions indicates a violation or 49 U.S.C. 106(g), Duties and powers of remote pilot in command: Address and potential violation of law, whether civil, Administrator; 49 U.S.C. 40101, Policy; telephone number; Remote pilot in criminal or regulatory in nature, and 49 U.S.C. 40103, Sovereignty and use of command certificate number; Aircraft whether arising by general statute or airspace; 49 U.S.C. 40106, Emergency manufacturer name and model; Aircraft particular program pursuant thereto, the powers; 49 U.S.C. 40113, registration number; Regulations subject relevant records in the system of records Administrative; 49 U.S.C. 44701, to waiver or authorization; Requested may be referred, as a routine use, to the General requirements; FAA date and time operations will appropriate agency, whether Federal, Modernization and Reform Act of 2012, commence and conclude under waiver State, local or foreign, charged with the Public Law 112–95 (‘‘FMRA’’) § 333, or authorization; Flight path responsibility of investigating or Special Rules for Certain Unmanned information, including but not limited prosecuting such violation or charged Aircraft Systems; 14 CFR part 107, to the requested altitude and with enforcing or implementing the subpart D, ‘‘Waivers’’; 14 CFR 107.41, coordinates of the applicable to the statute, or rule, regulation, or order ‘‘Operation in certain airspace’’; and 49 waiver or authorization; Description of issued pursuant thereto. U.S.C. 44809(a). proposed operations; specifications; 5. A record from this system of Geometry (center point with radius or records may be disclosed, as a routine PURPOSE(S): Geo/JSON polygon); airspace class(s); use, to a Federal, State, or local agency The purpose of this system is to Submission reference code; Safety maintaining civil, criminal, or other receive, evaluate, and respond to justification for non-auto-authorized relevant enforcement information or requests for authorization to operate a operations. other pertinent information, such as sUAS in Class B, C, or D airspace or current licenses, if necessary to obtain within the lateral boundaries of the RECORD SOURCE CATEGORIES: information relevant to a DOT decision surface area of Class E airspace Records are obtained from concerning the hiring or retention of an designated for an airport, and evaluate individuals, manufacturers of aircraft, employee, the issuance of a security requests for a certificate of waiver to maintenance inspectors, mechanics, and clearance, the letting of a contract, or deviate safely from one or more sUAS FAA officials. Records are also obtained the issuance of a license, grant or other operational requirements specified in 14 on behalf of individuals through UAS benefit. CFR part 107. The FAA also will use Service Suppliers. 6. A record from this system of this system to support FAA safety records may be disclosed, as a routine programs and agency management, ROUTINE USES OF RECORDS MAINTAINED IN THE use, to a federal agency, in response to including safety studies and SYSTEM, INCLUDING CATEGORIES OF USERS AND its request, in connection with the assessments. The FAA may use contact THE PURPOSES OF SUCH USES: hiring or retention of an employee, the information provided with requests for In addition to other disclosures issuance of a security clearance, the waiver or authorization to provide sUAS generally permitted under 5 U.S.C. reporting of an investigation of an owners and operators’ information 552a(b) of the Privacy Act, all or a employee, the letting of a contract, or about potential unsafe conditions and portion of the records or information the issuance of a license, grant, or other educate sUAS owners and operators contained in this system may be benefit by the requesting agency, to the regarding safety requirements for disclosed outside DOT as a routine use extent that the information is relevant operation. The FAA also will use this pursuant to 5 U.S.C. 552a(b)(3) as and necessary to the requesting agency’s system to maintain oversight of FAA follows: decision on the matter.

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7. Routine Use for Disclosure for Use 9. One or more records from a system contractors and their agents, experts, in Litigation. It shall be a routine use of of records may be disclosed routinely to consultants, and others performing or the records in this system of records to the National Archives and Records working on a contract, service, disclose them to the Department of Administration in records management cooperative agreement, or other Justice or other Federal agency inspections being conducted under the assignment for DOT, when necessary to conducting litigation when (a) DOT, or authority of 44 U.S.C. 2904 and 2906. accomplish an agency function related any agency thereof, or (b) Any employee 10. DOT may make available to to this system of records. of DOT or any agency thereof (including another agency or instrumentality of any 14. DOT may disclose records from a member of the Coast Guard), in his/ government jurisdiction, including State this system, as a routine use, to an her official capacity, or (c) Any and local governments, listings of names agency, organization, or individual for employee of DOT or any agency thereof from any system of records in DOT for the purpose of performing audit or (including a member of the Coast use in law enforcement activities, either oversight operations related to this Guard), in his/her individual capacity civil or criminal, or to expose fraudulent system of records, but only such records where the Department of Justice has claims, regardless of the stated purpose as are necessary and relevant to the agreed to represent the employee, or (d) for the collection of the information in audit or oversight activity. This routine The United States or any agency thereof, the system of records. These use does not apply to intra-agency where DOT determines that litigation is enforcement activities are generally sharing authorized under Section (b)(1), likely to affect the United States, is a referred to as matching programs of the Privacy Act. party to litigation or has an interest in because two lists of names are checked 15. DOT may disclose from this such litigation, and the use of such for match using automated assistance. system, as a routine use, records records by the Department of Justice or This routine use is advisory in nature consisting of, or relating to, terrorism other Federal agency conducting the and does not offer unrestricted access to information (6 U.S.C. 485(a)(5)), litigation is deemed by DOT to be systems of records for such law homeland security information (6 U.S.C. relevant and necessary in the litigation, enforcement and related antifraud 482(f)(1)), or Law enforcement provided, however, that in each case, activities. Each request will be information (Guideline 2 Report DOT determines that disclosure of the considered on the basis of its purpose, attached to White House Memorandum, records in the litigation is a use of the merits, cost effectiveness and ‘‘Information Sharing Environment, information contained in the records alternatives using Instructions on November 22, 2006) to a Federal, State, that is compatible with the purpose for reporting computer matching programs local, tribal, territorial, foreign which the records were collected. 6b. to the Office of Management and government and/or multinational Routine Use for Agency Disclosure in Budget, OMB, Congress and the public, agency, either in response to its request Other Proceedings. It shall be a routine published by the Director, OMB, dated or upon the initiative of the Component, use of records in this system to disclose September 20, 1989. for purposes of sharing such 11. DOT may disclose records from them in proceedings before any court or information as is necessary and relevant this system, as a routine use to adjudicative or administrative body for the agencies to detect, prevent, appropriate agencies, entities and before which DOT or any agency disrupt, preempt, and mitigate the persons when (1) DOT suspects or has thereof, appears, when (a) DOT, or any effects of terrorist activities against the confirmed that the security or agency thereof, or (b) Any employee of territory, people, and interests of the confidentiality of information in the DOT or any agency thereof (including a United States of America, as system of records has been member of the Coast Guard) in his/her contemplated by the Intelligence Reform compromised; (2) DOT has determined and Terrorism Prevention Act of 2004, official capacity, or (c) Any employee of that as a result of the suspected or (Pub. L. 108–458) and Executive Order, DOT or any agency thereof (including a confirmed compromise there is a risk of 13388 (October 25, 2005). member of the Coast Guard) in his/her harm to economic or property interests, individual capacity where DOT has identity theft or fraud, or harm to the POLICIES AND PRACTICES FOR STORAGE OF agreed to represent the employee, or (d) security or integrity of this system or RECORDS: The United States or any agency thereof, other systems or programs (whether where DOT determines that the Individual records relevant to both maintained by DOT or another agency waivers and airspace authorizations are proceeding is likely to affect the United or entity) that rely upon the, States, is a party to the proceeding or maintained in an electronic database compromised information; and (3) the system. has an interest in such proceeding, and disclosure made to such agencies, DOT determines that use of such entities, and persons is reasonably POLICIES AND PRACTICES FOR RETRIEVAL OF records is relevant and necessary in the necessary to assist in connection with RECORDS: proceeding, provided, however, that in DOT’s efforts to respond to the Records of applications for waivers each case, DOT determines that suspected or confirmed compromise and authorizations in the electronic disclosure of the records in the and prevent, minimize, or remedy such database system may be retrieved by proceeding is a use of the information harm. sUAS registration number, the contained in the records that is 12. DOT may disclose records from manufacturer’s name and model, the compatible with the purpose for which this system, as a routine use, to the name of the current registered owner the records were collected. Office of Government Information and/or organization, the name of the 8. The information contained in this Services for the purpose of (a) resolving remote pilot in command, the airmen system of records will be disclosed to disputes between FOIA requesters and certification number, the name of the the Office of Management and Budget, Federal agencies and (b) reviewing applicant and/or organization that OMB in connection with the review of agencies’ policies, procedures, and submitted the request for waiver or private relief legislation as set forth in compliance in order to recommend authorization, the special provisions (if OMB Circular No. A–19 at any stage of policy changes to Congress and the any) to which the FAA and the the legislative coordination and President. applicant agreed for purposes of the clearance process as set forth in that 13. DOT may disclose records from waiver or authorization, and the Circular. this system, as a routine use, to location and altitude, class of airspace

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and area of operations that is the subject EXEMPTIONS PROMULGATED FOR THE SYSTEM: Advisory Group is available on the of the request. Records may also be None. Commission’s website at www.ussc.gov/ sorted by regulation section that is the advisory-groups. subject of the request for waiver or HISTORY: SUPPLEMENTARY INFORMATION: authorization. A full notice of this system of records, The DOT/FAA854 Requests for Waivers and Practitioners Advisory Group is a POLICIES AND PRACTICES FOR RETENTION AND Authorizations under 14 CFR part 107 standing advisory group of the United DISPOSAL OF RECORDS: was published in the Federal Register States Sentencing Commission pursuant The FAA will retain records in this on August 2, 2016, (81 FR 50789). to 28 U.S.C. 995 and Rule 5.4 of the system of records, which covers both Issued in Washington, DC, on July 2, 2019. Commission’s Rules of Practice and waivers and airspace authorizations, as Procedure. Under the charter for the Stephen H. Holden, permanent government records until it advisory group, the purpose of the receives record disposition authority Associate CIO for IT Policy and Oversight, Department of Transportation. advisory group is (1) to assist the from the National Archives and Records Commission in carrying out its statutory [FR Doc. 2019–14449 Filed 7–5–19; 8:45 am] Administration (NARA), pursuant to 36 responsibilities under 28 U.S.C. 994(o); CFR 1225.16 and 1225.18. The FAA has BILLING CODE 4910–9X–P (2) to provide to the Commission its requested from NARA authority to views on the Commission’s activities dispose of waiver and authorization and work, including proposed priorities UNITED STATES SENTENCING records after two years following the and amendments; (3) to disseminate to COMMISSION expiration of the waiver or defense attorneys, and to other authorization. Requests for Applications; professionals in the defense community, ADMINISTRATIVE, TECHNICAL, AND PHYSICAL Practitioners Advisory Group information regarding federal SAFEGUARDS: sentencing issues; and (4) to perform AGENCY: Records in this system for waivers United States Sentencing other related functions as the and airspace authorizations are Commission. Commission requests. The advisory safeguarded in accordance with ACTION: Notice. group consists of not more than 17 voting members, each of whom may applicable rules and policies, including SUMMARY: In view of upcoming serve not more than two consecutive all applicable DOT automated systems vacancies in the voting membership of three-year terms. Of those 17 voting security and access policies. Strict the Practitioners Advisory Group, the members, one shall be Chair, one shall controls have been imposed to minimize United States Sentencing Commission be Vice Chair, 12 shall be circuit the risk of compromising the hereby invites any individual who is members (one for each federal judicial information that is being stored. Access eligible to be appointed to one of the to the computer system containing the vacancies to apply. The voting circuit other than the Federal Circuit), records in this system is limited to memberships covered by this notice are and three shall be at-large members. individuals who have a need to know two circuit memberships (for the To be eligible to serve as a voting the information for the performance of Second Circuit and the District of member, an individual must be an their official duties and who have Columbia Circuit) and one at-large attorney who (1) devotes a substantial appropriate clearances or permissions. membership. An applicant for voting portion of his or her professional work RECORD ACCESS PROCEDURES: membership of the Practitioners to advocating the interests of privately- Individuals seeking notification of Advisory Group should apply by represented individuals, or of whether this system of records contains sending a letter of interest and resume individuals represented by private information about them may contact the to the Commission as indicated in the practitioners through appointment System Manager at the address provided addresses section below. Application under the Criminal Justice Act of 1964, in the section ‘‘System manager.’’ When materials should be received by the within the federal criminal justice seeking records about yourself from this Commission not later than September 6, system; (2) has significant experience system of records or any other 2019. with federal sentencing or post- Departmental system of records your DATES: Application materials for voting conviction issues related to criminal request must conform with the Privacy membership of the Practitioners sentences; and (3) is in good standing of Act regulations set forth in 49 CFR part Advisory Group should be received not the highest court of the jurisdiction or 10. You must sign your request, and later than September 6, 2019. jurisdictions in which he or she is your signature must either be notarized ADDRESSES: An applicant for voting admitted to practice. Additionally, to be or submitted under 28 U.S.C. 1746, a membership of the Practitioners eligible to serve as a circuit member, the law that permits statements to be made Advisory Group should apply by individual’s primary place of business under penalty of perjury as a substitute sending a letter of interest and resume or a substantial portion of his or her for notarization. If your request is to the Commission by electronic mail or practice must be in the circuit seeking records pertaining to another regular mail. The email address is concerned. Each voting member is living individual, you must include a [email protected]. The regular mail appointed by the Commission. statement from that individual address is United States Sentencing The Commission invites any certifying his/her agreement for you to Commission, One Columbus Circle NE, individual who is eligible to be access his/her records. Suite 2–500, South Lobby, Washington, appointed to a voting membership DC 20002–8002, Attention: Public CONTESTING RECORDS PROCEDURE: covered by this notice (i.e., the circuit Affairs. See ‘‘Record Access Procedures’’ memberships for the Second Circuit and above. FOR FURTHER INFORMATION CONTACT: the District of Columbia Circuit, and one Christine Leonard, Director, Office of at-large membership) to apply by NOTIFICATION PROCEDURE: Legislative and Public Affairs, (202) sending a letter of interest and a resume See ‘‘Records Access Procedures’’ 502–4500, [email protected]. More to the Commission as indicated in the above. information about the Practitioners ADDRESSES section above.

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Authority: 28 U.S.C. 994(a), (o), (p), § 995, § 996(a); USSC Rules of Practice and Procedure 2.2(c), 5.4. Kenneth P. Cohen, Staff Director. [FR Doc. 2019–14392 Filed 7–5–19; 8:45 am] BILLING CODE 2210–40–P

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Part II

Environmental Protection Agency

40 CFR Part 60 Repeal of the Clean Power Plan; Emission Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units; Revisions to Emission Guidelines Implementing Regulations; Final Rule

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ENVIRONMENTAL PROTECTION Ave. NW, Washington, DC. The EPA’s Organization of this document. The AGENCY Public Reading Room hours of operation information in this preamble is are 8:30 a.m. to 4:30 p.m. Eastern organized as follows: 40 CFR Part 60 Standard Time (EST), Monday through I. General Information [EPA–HQ–OAR–2017–0355: FRL–9995–70– Friday. The telephone number for the A. Executive Summary OAR] Public Reading Room is (202) 566–1744, B. Where can I get a copy of this document and the telephone number for the EPA and other eelated information? RIN 2060–AT67 Docket Center is (202) 566–1742. C. Judicial Review and Administrative Reconsideration Repeal of the Clean Power Plan; FOR FURTHER INFORMATION CONTACT: For II. Repeal of the Clean Power Plan Emission Guidelines for Greenhouse questions about these final actions, A. Background for the Repeal of the Clean Gas Emissions From Existing Electric contact Mr. Nicholas Swanson, Sector Power Plan Utility Generating Units; Revisions to Policies and Programs Division (Mail B. Basis for Repealing the Clean Power Emission Guidelines Implementing Code D205–01), Office of Air Quality Plan Regulations Planning and Standards, U.S. C. Independence of Repeal of the Clean Environmental Protection Agency, Power Plan AGENCY: Environmental Protection Research Triangle Park, North Carolina III. The Affordable Clean Energy Rule Agency (EPA). 27711; telephone number: (919) 541– A. The Affordable Clean Energy Rule ACTION: Final rule. 4080; fax number: (919) 541–4991; and Background B. Legal Authority To Regulate EGUs SUMMARY: The U.S. Environmental email address: swanson.nicholas@ epa.gov. C. Designated Facilities for the Affordable Protection Agency (EPA) is finalizing Clean Energy Rule three separate and distinct rulemakings. SUPPLEMENTARY INFORMATION: D. Regulated Pollutant First, the EPA is repealing the Clean E. Determination of the Best System of Power Plan (CPP) because the Agency Preamble acronyms and Emission Reduction has determined that the CPP exceeded abbreviations. The EPA uses multiple F. State Plan Development the EPA’s statutory authority under the acronyms and terms in this preamble. G. Impacts of the Affordable Clean Energy Clean Air Act (CAA). Second, the EPA While this list may not be exhaustive, to Rule is finalizing the Affordable Clean Energy ease the reading of this preamble and for IV. Changes to the Implementing Regulations rule (ACE), consisting of Emission reference purposes, the EPA defines the for CAA Section 111(d) Emission Guidelines for Greenhouse Gas (GHG) following terms and acronyms: Guidelines A. Regulatory Background Emissions from Existing Electric Utility ACE Affordable Clean Energy Rule B. Provisions for Superseding AEO Annual Energy Outlook Generating Units (EGUs) under CAA Implementing Regulations ANPRM Advance Notice of Proposed section 111(d), that will inform states on C. Changes to the Definition of ‘‘Emission Rulemaking the development, submittal, and Guidelines’’ BACT Best Available Control Technology implementation of state plans to D. Updates to Timing Requirements establish performance standards for BSER Best System of Emission Reduction Btu British Thermal Unit E. Compliance Deadlines GHG emissions from certain fossil fuel- CAA Clean Air Act F. Completeness Criteria fired EGUs. In ACE, the Agency is CCS Carbon Capture and Storage (or G. Standard of Performance finalizing its determination that heat Sequestration) H. Remaining Useful Life and Other rate improvement (HRI) is the best CFR Code of Federal Regulation Factors Provision V. Statutory and Executive Order Reviews system of emission reduction (BSER) for CO2 Carbon Dioxide reducing GHG—specifically carbon CPP Clean Power Plan A. Executive Order 12866: Regulatory dioxide (CO )—emissions from existing EGU Electric Utility Generating Unit Planning and Review and Executive 2 Order 13563: Improving Regulation and coal-fired EGUs. Third, the EPA is EIA Energy Information Administration EPA Environmental Protection Agency Regulatory Review finalizing new regulations for the EPA B. Executive Order 13771: Reducing and state implementation of ACE and FIP Federal Implementation Plan GHG Greenhouse Gas Regulation and Controlling Regulatory any future emission guidelines issued HRI Heat Rate Improvement Costs under CAA section 111(d). IGCC Integrated Gasification Combined C. Paperwork Reduction Act (PRA) DATES: Effective September 6, 2019. Cycle D. Regulatory Flexibility Act (RFA) ADDRESSES: The EPA has established a kW Kilowatt E. Unfunded Mandates Reform Act docket for these actions under Docket ID kWh Kilowatt-hour (UMRA) F. Executive Order 13132: Federalism No. EPA–HQ–OAR–2017–0355. All MW Megawatt MWh Megawatt-hour G. Executive Order 13175: Consultation documents in the docket are listed on NAAQS National Ambient Air Quality and Coordination With Indian Tribal the https://www.regulations.gov/ Standards Governments website. Although listed, some NGCC Natural Gas Combined Cycle H. Executive Order 13045: Protection of information is not publicly available, NOX Nitrogen Oxides Children From Environmental Health e.g., confidential business information NSPS New Source Performance Standards Risks and Safety Risks (CBI) or other information whose NSR New Source Review I. Executive Order 13211: Actions disclosure is restricted by statute. OMB Office of Management and Budget Concerning Regulations That Certain other material, such as PM2.5 Fine Particulate Matter Significantly Affect Energy Supply, copyrighted material, is not placed on PRA Paperwork Reduction Act Distribution, or Use the internet and will be publicly PSD Prevention of Significant Deterioration J. National Technology Transfer and Advancement Act (NTTAA) available only in hard copy form. RIA Regulatory Impact Analysis RTC Response to Comments K. Executive Order 12898: Federal Actions Publicly available docket materials are SIP State Implementation Plan To Address Environmental Justice in available electronically through https:// SO2 Sulfur Dioxide Minority Populations and Low-Income www.regulations.gov/ or in hard copy at UMRA Unfunded Mandates Reform Act Populations the EPA Docket Center, WJC West U.S. United States L. Congressional Review Act (CRA) Building, Room 3334, 1301 Constitution VFD Variable Frequency Drive VI. Statutory Authority

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I. General Information develop standards of performance that EPA as the BSER, other heat rate reflect the application of the BSER. Per improvement measures, or other A. Executive Summary the CAA, states may also consider approaches such as CCS or natural gas With this document, the EPA is, after source-specific factors—including, co-firing). review and consideration of public among other factors, the remaining These three rules have been informed comments, finalizing three separate and useful life of an existing source—in by more than 1.5 million public distinct rulemakings. First, the EPA is applying a standard of performance to comments on the Proposed Repeal and finalizing the repeal of the CPP which that source. In this way, the state and 500,000 public comments on the was proposed at 82 FR 48035 (Oct. 16, federal roles complement each other as proposals for ACE and the new 2017) (‘‘Proposed Repeal’’). Second, the the EPA has the authority and implementing regulations. Per CAA EPA is promulgating ACE, which responsibility to determine BSER at the section 307(d)(6)(B), the EPA is consists of emission guidelines for states national level, while the states have the providing a response to the significant to develop and submit to the EPA plans authority and responsibility to establish comments received for each of these that establish standards of performance and apply standards of performance for actions in the docket. After careful for CO2 emissions from certain existing their existing sources, taking into consideration of the comments, the EPA coal-fired EGUs within their consideration source-specific factors is finalizing these three rules, with jurisdictions. Third, the EPA is where appropriate. A full discussion of revisions to what it proposed where finalizing implementing regulations that ACE can be found in section III of this appropriate, to provide states guidance provide direction to both the EPA and preamble. on how to address CO2 emissions from states on the implementation of ACE Third, the EPA is finalizing new coal-fired power plants in a way that is and any future emission guidelines implementing regulations that apply to consistent with the EPA’s authority issued under CAA section 111(d). This ACE and any future emission guidelines under the CAA. document does not include any final promulgated under CAA section 111(d). B. Where can I get a copy of this action concerning the New Source The purpose of the new implementing document and other related Review (NSR) reforms the EPA regulations is to harmonize aspects of information? proposed in conjunction with the ACE our existing regulations with the statute, proposal; the EPA intends to take final in a new 40 CFR part 60, subpart Ba, by In addition to being available in the action on the proposed NSR reforms in making it clear that states have broad docket, an electronic copy of this a separate final action at a later date. discretion in establishing and applying document is available on the internet. First, the EPA is repealing the CPP. In emissions standards consistent with the Following signature by the EPA proposing to repeal the CPP, the Agency BSER. The new implementing Administrator, the EPA will post a copy proposed a change in the legal regulations also provide changes to the of this document at https:// interpretation of CAA section 111, on timing requirements for the EPA and www.epa.gov/stationary-sources-air- which the CPP was based, to an states to take action to more closely pollution/electric-utility-generating- interpretation of the CAA that ‘‘is align with the CAA section 110 state units-emission-guidelines-greenhouse. consistent with the CAA’s text, context, implementation plan (SIP) and federal Following publication in the Federal structure, purpose, and legislative implementation plan (FIP) deadlines. Register, the EPA will post the Federal history, as well as with the Agency’s The discussion of the final revisions to Register version of these final rules and historical understanding and exercise of the implementing regulations is found key technical documents at this same its statutory authority.’’ 1 After further in section IV below. website. review of the EPA’s statutory authority The implementing regulations (and C. Judicial Review and Administrative under CAA section 111 and in ACE which is promulgated consistent Reconsideration consideration of public comments, the with those regulations) make clear that Agency is finalizing the repeal of the the EPA, states, and sources all have Under CAA section 307(b)(1), judicial CPP. The discussion of the repeal distinct roles, responsibilities, and review of these final actions is available action, along with the EPA’s flexibilities under CAA section 111(d). only by filing a petition for review in explanation that it intends the repeal of Specifically, the EPA identifies the the United States Court of Appeals for the CPP to be independent from the BSER; states establish standards of the District of Columbia Circuit (D.C. other final actions in this document, can performance for existing sources within Circuit) by September 6, 2019. Under be found in section II below. their jurisdiction consistent with that CAA section 307(b)(2), the requirements Second, the EPA is finalizing ACE, BSER and also with the flexibility to established by these final rules may not which consists of emission guidelines to consider source-specific factors, be challenged separately in any civil or inform states in the development, including remaining useful life; and criminal proceedings brought by the submittal, and implementation of state sources then meet those standards using EPA to enforce the requirements. plans that establish standards of the technologies or techniques they Section 307(d)(7)(B) of the CAA performance for CO2 from certain believe is most appropriate. As this further provides that only an objection existing coal-fired EGUs within their preamble explains, in the case of ACE, to a rule or procedure which was raised jurisdictions. In these emission the EPA has identified the BSER as a set with reasonable specificity during the guidelines, the EPA has determined that of heat rate improvement measures. period for public comment (including the BSER for existing EGUs is based on States will establish standards of any public hearing) may be raised HRI measures that can be applied to a performance for existing sources based during judicial review. This section also designated facility. ACE also clarifies on application of those heat rate provides a mechanism for the EPA to the roles of the EPA and the states under improvement measures (considering reconsider a rule if the person raising an CAA section 111(d). With the source-specific factors, including objection can demonstrate to the promulgation of this action, it is the remaining useful life). Each regulated Administrator that it was impracticable states’ responsibility to use the source then must meet those standards to raise such objection within the period information and direction herein to using the measures they believe is for public comment or if the grounds for appropriate (e.g., via the heat rate such objection arose after the period for 1 Proposed Repeal, 82 FR 48036. improvement measures identified by the public comment (but within the time

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11 specified for judicial review) and if such limiting CO2 emissions from those growth, and prevent job creation.’’ objection is of central relevance to the existing fossil fuel-fired power plants. The Executive Order directs all outcome of the rule. Any person seeking Those emission guidelines included executive departments and agencies, to make such a demonstration should both state-specific ‘‘goals’’ and including the EPA, to ‘‘immediately submit a Petition for Reconsideration to alternative, nationally uniform CO2 review existing regulations that the Office of the Administrator, U.S. emission performance rates for two potentially burden the development or EPA, Room 3000, WJC South Building, types of existing fossil fuel-fired power use of domestically produced energy 1200 Pennsylvania Ave. NW, plants: Electric utility steam generating resources and appropriately suspend, Washington, DC 20460, with a copy to units and stationary combustion revise, or rescind those that unduly both the person(s) listed in the turbines.7 burden the development of domestic preceding FOR FURTHER INFORMATION In the CPP, the EPA determined that energy resources beyond the degree CONTACT section, and the Associate the BSER for CO2 emissions from necessary to protect the public interest General Counsel for the Air and existing fossil fuel-fired power plants or otherwise comply with the law.’’ 12 Radiation Law Office, Office of General was the combination of: (1) Heat rate The Executive Order further affirms that Counsel (Mail Code 2344A), U.S. EPA, (e.g., efficiency) improvements to be it is ‘‘the policy of the United States that 1200 Pennsylvania Ave. NW, conducted at individual power plants, necessary and appropriate Washington, DC 20460. in combination with (2, 3) two other sets environmental regulations comply with the law.’’ 13 Moreover, the Executive II. Repeal of the Clean Power Plan of measures based on the shifting of generation at the fleet-wide level from Order specifically directs the EPA to A. Background for the Repeal of the one type of energy source to another. review and initiate reconsideration Clean Power Plan The EPA referred to these three sets of proceedings to ‘‘suspend, revise, or 8 rescind’’ the CPP ‘‘as appropriate and 1. The Clean Power Plan measures as ‘‘building blocks’’: 1. Improving heat rate at affected coal- consistent with law.’’ 14 The EPA promulgated the CPP under fired steam generating units; In a document signed the same day as 2 section 111 of the CAA. Section 111(b) 2. Substituting increased generation Executive Order 13783 and published in authorizes the EPA to issue nationally from lower-emitting existing natural gas the Federal Register at 82 FR 16329 applicable new source performance combined cycle units for decreased (April 4, 2017), the EPA announced standards (NSPS) limiting air pollution generation from higher-emitting affected that, consistent with the Executive from ‘‘new sources’’ in source categories steam generating units; and Order, it was initiating its review of the that cause or significantly contribute to 3. Substituting increased generation CPP and providing notice of air pollution that may reasonably be from new zero-emitting renewable forthcoming proposed rulemakings anticipated to endanger public health or consistent with the Executive Order. 3 energy generating capacity for decreased welfare. In 2015, the EPA issued such generation from affected fossil fuel-fired In light of Executive Order 13783, the a rule for GHG emissions—in particular, generating units. EPA’s initiation of a review of the CPP, CO2—from certain new fossil fuel-fired and notice of the EPA’s forthcoming 4 While building block 1 relied on power plants in light of the Agency’s measures that could be applied directly rulemakings, the EPA asked the D.C. assessment ‘‘that GHGs endanger public Circuit to hold the CPP litigation in 5 to individual sources, building blocks 2 health, now and in the future.’’ CAA and 3 employed measures that were abeyance, and, on April 28, 2017, the section 111(d) provides that, under expressly designed to shift the balance court (still sitting en banc) granted certain circumstances, when the EPA of coal-, gas-, and renewable-generated motions to hold the cases in abeyance issues a CAA section 111(b) standard, power across the power grid. for 60 days and directed the parties to the EPA must develop procedures file briefs addressing whether the cases requiring each state to submit a plan to 2. Legal Challenges to the CPP, should be remanded to the Agency the EPA that establishes performance Executive Order 13783, and the EPA’s rather than held in abeyance.15 Since standards for existing sources in the Review of the CPP then, the D.C. Circuit has issued a series 6 same category. The EPA relied on CAA On October 23, 2015, 27 states and a of orders holding the cases in abeyance. section 111(d) to issue the CPP, which, number of other parties sought judicial While the case has been in abeyance, for the first time, required states to review of the CPP in the U.S. Court of the EPA has been reviewing the CPP submit plans specifically designed to Appeals for the D.C. Circuit.9 After and providing status reports to the court limit CO2 emissions from certain some preliminary briefing, the Supreme describing the progress of its existing fossil fuel-fired power plants. Court stayed implementation of the rulemaking. The CPP established emission In the course of the EPA’s review of CPP, pending judicial review.10 The guidelines for states to follow in the CPP, the Agency also reevaluated its case was then referred to an en banc interpretation of CAA section 111, and, panel of the D.C. Circuit, which held 2 42 U.S.C. 7411. on that basis, the Agency proposed to oral argument on September 27, 2016. 3 Id. 7411(b)(1). repeal the CPP.16 4 The CPP identified ‘‘[f]ossil fuel-fired EGUs’’ as On March 28, 2017, President Trump ‘‘by far the largest emitters of GHGs among issued Executive Order 13783, which 3. Public Comment and Hearings on the stationary sources in the U.S., primarily in the form affirms the ‘‘national interest to promote Proposed Repeal of CO2.’’ 80 FR 64510, 64522 (October 23, 2015). clean and safe development of our 5 Standards of Performance for Greenhouse Gas Publication of the Proposed Repeal in Emissions from New, Modified, and Reconstructed Nation’s vast energy resources, while at the Federal Register opened comment Stationary Sources: Electric Generating Units, 80 FR the same time avoiding regulatory on the proposal for an initial 60-day 64510, 64518 (October 23, 2015); see also burdens that unnecessarily encumber Endangerment and Cause or Contribute Findings for energy production, constrain economic 11 Greenhouse Gases Under section 202(a) of the CAA, See Executive Order 13783, section 1(a). 12 74 FR 66496 (December 15, 2009) (2009 Id. section 1(c). Endangerment Finding). The substance of the 2009 7 See 80 FR 64707. 13 Id. section 1(e). Endangerment Finding, which addressed GHG 8 Id. 14 Id. section 4(a)–(c). emissions from mobile sources, is not at issue in 9 See West Virginia v. EPA, No. 15–1363 (and 15 Order, Document No. 1673071 (per curiam). this action. consolidated cases) (D.C. Cir. October 23, 2015). 16 See Proposed Repeal, 82 FR 48035 (October 16, 6 42 U.S.C. 7411(d)(1) (emphasis added). 10 West Virginia v. EPA, 136 S. Ct. 1000 (2016). 2017).

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public comment period. The EPA held equipment and practices at the level of And CAA section 302(l) defines public hearings on November 28 and 29, an individual facility, the EPA in the ‘‘standard of performance’’ as ‘‘a 2017, in Charleston, West Virginia, and CPP set standards that could only be requirement of continuous emission then extended the public comment achieved by a shift in the energy reduction, including any requirement period until January 16, 2018. In generation mix at the grid level, relating to the operation or maintenance response to requests for additional requiring a shift from one type of fossil- of a source to assure continuous opportunities for oral testimony, the fuel-fired generation to another, and reduction.’’ 27 EPA held three listening sessions in from fossil-fuel-fired generation as a EPA’s role under CAA section 111(d) Kansas City, Missouri; San Francisco, whole towards renewable sources of is narrow. Indeed, CAA section 111(d) California; and Gillette, Wyoming. The energy. The text of the CAA is tasks states with ‘‘establish[ing] EPA also reopened the public comment inconsistent with that interpretation, standards of performance for any period until April 26, 2018, giving and the context, structure, and existing source’’ and ‘‘provid[ing] for stakeholders 192 days to review and legislative history confirm that the the implementation and enforcement of comment on the proposal. The EPA statutory interpretation underlying the such standards of performance.’’ It received more than 1.5 million CPP was not a permissible construction requires further that the regulations the comments on the Proposed Repeal. of the Act. EPA is directed to adopt must permit the state ‘‘to take into consideration, B. Basis for Repealing the Clean Power a. CAA Requirements and Background Plan among other factors, the remaining In 1970, Congress enacted section useful life of the existing source to 1. Authority To Revisit Existing 111(b) of the CAA, authorizing the EPA which such standard [of performance] 28 Regulations to promulgate ‘‘standards of applies.’’ After all, Congress found The EPA’s ability to revisit existing performance’’ for new stationary sources that ‘‘air pollution prevention . . . and regulations is well-grounded in the law. in certain source categories.21 Congress air pollution control at its source is the Specifically, the EPA has inherent also directed the EPA, under CAA primary responsibility of States and 29 authority to reconsider, repeal, or revise section 111(d), to ‘‘prescribe regulations local governments.’’ past decisions to the extent permitted by which shall establish a procedure’’ 22 for In contrast to CAA section 111(b) law so long as the Agency provides a states to establish standards 23 for (where the EPA may directly establish reasoned explanation. The authority to existing sources of certain air pollutants performance standards for emissions reconsider prior decisions exists in part to which a standard of performance from new sources), the EPA implements because the EPA’s interpretations of would apply if such existing source CAA section 111(d) by issuing statutes it administers ‘‘[are not] were a new source.24 regulations that it calls ‘‘emission 30 instantly carved in stone,’’ but must be guidelines’’ These guidelines provide 17 Since 1990, new- and existing-source states with information to assist them in evaluated ‘‘on a continuing basis.’’ CAA section 111 rulemakings have been This is true when, as is the case here, developing state plans establishing governed by the same statutory standards of performance for existing review is undertaken ‘‘in response to 25 18 definitions. The CAA defines the term designated facilities within their . . . a change in administrations.’’ ‘‘standard of performance’’ in two Indeed, ‘‘[a]gencies obviously have jurisdiction that are submitted to the sections. CAA section 111(a)(1) defines EPA for review. Such information broad discretion to reconsider a it, for purposes of section 111 (which regulation at any time.’’ 19 includes the EPA’s determination of the contains the new- and existing-source ‘‘best system of emission reduction,’’ 2. Legal Basis for Repeal of the Clean performance standard authority in, which is commonly referred to as the Power Plan respectively, CAA section 111(b) and BSER. 111(d)), as: The CPP departed from the EPA’s b. The Plain Meaning of CAA Sections traditional understanding of its a standard for emissions of air pollutants 111(a)(1) and (d) authority under section 111 of the CAA which reflects the degree of emission and promulgated a rule in excess of its limitation achievable through the application CAA section 111(d) provides that statutory authority. Because the CPP of the best system of emission reduction ‘‘each State shall submit to the significantly exceeded the Agency’s which (taking into account the cost of Administrator a plan which (A) 20 achieving such reduction and any nonair establishes standards of performance for authority, it must be repealed. quality health and environmental impact and Fundamentally, the CPP read the any existing source for [certain air energy requirements) the Administrator pollutants] . . . and (B) provides for the statutory term ‘‘best system of emission determines has been adequately reduction’’ so broadly as to encompass demonstrated.26 implementation and enforcement of 31 measures the EPA had never before such standards of performance.’’ Given how Congress has defined the envisioned in promulgating 21 CAA Amendments of 1970, Public Law 91–604, performance standards under CAA 84 Stat. at 1683–84 (Dec. 31, 1970); see also 42 phrase ‘‘standard of performance’’ for section 111. In contrast to its traditional U.S.C. 7411(b). purposes of CAA section 111, the plain regulations that set performance 22 See section IV (addressing changes to the meaning of CAA section 111(d), implementing regulations). standards based on the application of therefore is that states shall submit a 23 As originally enacted, CAA section 111 plan which ‘‘establishes [a standard for required states to establish ‘‘emission standards’’ for 17 Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. existing sources, but Congress replaced that term 837, 863–64 (1984). with ‘‘standard of performance’’ as part of the CAA 27 42 U.S.C. 7602(l). 18 National Cable & Telecommunications Ass’n v. Amendments of 1977. See Public Law 95–95, 91 28 42 U.S.C. 7411(d)(1). Brand X internet Services, 545 U.S. 967, 981 (2005). Stat. at 699 (Aug. 7, 1977) (‘‘Section 111(d)(1) . . . 29 42 U.S.C. 7401(a)(3). 19 Clean Air Council v. Pruitt, 862 F.3d 1, 8–9 is amended by striking out ‘emissions standards’ in 30 See American Elec. Power Co. v. Connecticut, (D.C. Cir. 2017). each place it appears and inserting in lieu thereof 564 U.S. 410, 424 (2011). See generally Section IV, 20 As noted above, the EPA received more than ‘standards of performance’ ’’). infra (discussing the promulgation of revised 1.5 million comments on the Proposed Repeal. The 24 CAA Amendments of 1970, 84 Stat. at 1684; see implementing regulations governing the EPA’s Agency’s consideration of and responses to also 42 U.S.C. 7411(d). issuance of emission guidelines); 40 CFR part 60, significant comments are reflected in section II.B.2 25 See infra n.51. subpart B. of this preamble. 26 42 U.S.C. 7411(a)(1). 31 42 U.S.C. 7411(d)(1) (emphasis added).

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emissions of air pollutants which ‘‘stationary source’’ as ‘‘any building, facility, or installation, Congress’ intent reflects the degree of emission structure, facility, or installation which is also manifest in the statutory limitation achievable through the emits or may emit any air pollutant.’’ 37 structure and purpose. ‘‘Statutory application of the [BSER] . . .] for any Consequently, CAA section 111 construction,’’ the Supreme Court existing source.’’ unambiguously limits the BSER to those instructs, ‘‘is a holistic endeavor.’’ 41 While CAA section 111(a)(1) provides systems that can be put into operation The interpretation of a phrase ‘‘is often that the EPA determines the BSER upon at a building, structure, facility, or clarified by the remainder of the which existing-source performance installation. Such systems include, for statutory scheme—because the same standards are based, Congress expressly example, add-on controls (e.g., terminology is used elsewhere in a limited the universe of systems of scrubbers) and inherently lower- context that makes its meaning clear, or emission reduction from which the EPA emitting processes/practices/designs. because only one of the permissible may choose the BSER to those systems Conversely, the plain language of meanings produces a substantive effect whose ‘‘application’’ to an ‘‘existing CAA section 111 does not authorize the that is compatible with the rest of the source’’ will yield an ‘‘achievable’’ EPA to select as the BSER a system that law.’’ 42 ‘‘degree of emission limitation.’’ 32 is premised on application to the source category as a whole or to entities (1) The Statutory Structure Limits a ‘‘[W]here . . . the statute’s language is ‘‘System of Emission Reduction’’ to plain,’’ courts explain, our ‘‘ ‘sole entirely outside the regulated source category. First, Congress specified that ‘‘Systems’’ That Have a Potential for function . . . is to enforce it according Application to an Individual Source to its terms.’ ’’ 33 ‘‘standards of performance’’ are The EPA begins with the meaning of established ‘‘for new sources within The conclusion that CAA section 111 ‘‘application,’’ as it appears in CAA such category ’’ 38 and ‘‘for any existing standards are limited as described above section 111(a)(1). In the absence of a source.’’ 39 CAA section 111, therefore, is confirmed by considering the statutory definition, the term must be does not allow for the establishment of section’s place in the overall statutory construed in accordance with its standards for the source category or for scheme. Congress tied CAA section 111 ordinary or natural meaning.34 Here the entities not within the source category. to the Best Available Control ordinary meaning of ‘‘application’’ Instead, CAA section 111 standards Technology (‘‘BACT’’) provisions in refers to the ‘‘act of applying’’ or the must be established for individual CAA section 165.43 Section 165 ‘‘act of putting to use.’’ 35 Accordingly, sources. Second, because CAA section provides that ‘‘[a]ny major stationary a standard of performance must reflect 111 standards reflect an ‘‘achievable’’ source or major modification subject to the degree of emission limitation that ‘‘degree of emission limitation’’ through [preconstruction requirements] must can be achieved by putting the BSER application of the BSER, an owner or conduct an analysis to ensure the 44 into use. Furthermore, the ordinary and operator must be able to achieve an application of [BACT].’’ A permitting natural use of the term ‘‘application,’’ applicable standard by applying the authority must ‘‘conduct a BACT which is derived from the verb ‘‘to BSER to the designated facility. analysis on a case-by-case basis . . . and apply,’’ requires both a direct object and Accordingly, the BSER—like standards must evaluate the amount of emission an indirect object. In other words, of performance—cannot be premised on reductions that each available someone must apply something to a system of emission reduction that is emissions-reducing technology or something else (e.g., the application of implementable only through the technique would achieve, as well as the combined activities of sources or non- energy, environmental, economic and general rules to particular cases). In the 45 case of CAA section 111, the direct sources. Thus, the EPA is precluded other costs ....’’ The EPA has long object is the BSER. CAA section 111(d) from basing BSER on strategies like recommended that permitting agencies also provides that the indirect object is generation shifting and corresponding conduct this analysis through a top- the ‘‘existing source’’—‘‘each State shall emissions offsets because these types of down assessment of the best available submit to the Administrator a plan systems cannot be put into use at the and feasible control technologies for the emissions subject to BACT.46 ‘‘Based on which (A) establishes standards of regulated building, structure, facility, or 40 performance for any existing source’’ installation. 41 Czyzewski v. Jevic Holding Corp., 137 S. Ct. (emphasis added). The Act further c. Statutory Structure and Purpose 973, 985 (2017) (citing United Savings Ass’n v. defines an ‘‘existing source’’ as ‘‘any Confirm That a ‘‘System of Emission Timbers of Inwood Forest Associates, 484 U.S. 365, stationary source other than a new Reduction’’ Must Be Applied to an 371 (1988)). source,’’ 36 and in turn defines a 42 Utility Air Regulatory Group v. EPA, 573 U.S. Individual Source and That CAA 302, 321 (2014). Section 111 is Intended to Best Design, 43 42 U.S.C. 7479(3) (‘‘In no event shall 32 Id. Build, Equip, Operate, and Maintain application of ‘best available control technology’ 33 Air Line Pilots Ass’n v. Chao, 167 F.3d 602, 791 Sources so as To Reduce Emissions result in emissions of any pollutants which will (D.C. Cir. 2018) (quoting United States v. Ron Pair exceed the emissions allowed by any applicable Enterprises, 489 U.S. 235, 241 (1989)). While the plain meaning of CAA standard established pursuant to section 7411 or 34 See Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). section 111 provides that the BSER must 7412 of this title.’’). 35 Merriam-Webster’s Collegiate Dictionary (11th be applied to a building, structure, 44 U.S. EPA, DRAFT New Source Review ed. 2003) (‘‘1: an act of applying: a (1) : an act of Workshop Manual: Prevention of Significant putting to use <∼ of new techniques> (2) : a use to Deterioration and Nonattainment Area Permitting, which something is put ’’). Definitions are also provided from 38 42 U.S.C. 7411(b)(1)(B) (requiring the https://www.epa.gov/sites/production/files/2015- when CAA section 111(a)(1) was last amended, see Administrator to establish performance standards 07/documents/1990wman.pdf. Though the EPA The Oxford English Dictionary (2d ed. 1989) (‘‘The ‘‘for new sources within such category’’ rather than never finalized this draft, it continues to follow the action of applying; the thing applied. 1. a. The for the category itself as a whole) (emphasis added) analytical approach to the BACT analysis contained action of putting a thing to another, of bringing into 39 42 U.S.C. 7411(d)(1)(A). within the NSR Manual. See also U.S. EPA, PSD material or effective contact’’), and first enacted, see 40 The CPP’s BSER was in part designed to consist and Title V Permitting Guidance for Greenhouse American Heritage Dictionary of the English of generation-shifting. See, e.g., 80 FR 64,776 (final Gases (March 2011) (‘‘GHG Permitting Guidance’’), Language (2d ed. 1969) (‘‘1. The act of applying or rule) (describing ‘building blocks’ 2 and 3 as available at https://www.epa.gov/sites/production/ putting something on. 2. Anything that is applied, ‘‘processes of shifting dispatch from steam files/2015-07/documents/ghgguid.pdf. such as a cosmetic or curative agent. 3. The act of generators to existing NGCC units and from both 45 GHG Permitting Guidance at 17 (emphasis putting something to a special use or purpose.’’). steam generators and NGCC units to renewable added). 36 42 U.S.C. 7411(a)(6). generators.’’). 46 See id. at 17–44.

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this [technology] assessment, the the potential for practical application to on individual sources to be designed, permitting authority must [then] the emissions unit and the regulated built, equipped, operated, and establish a numeric emission limitation pollutant under evaluation.’’ 51 This is maintained to reduce emissions. This that reflects the maximum degree of so because BACT reflects a level of purpose is evidenced in the history of reduction achievable....’’47 control that the permitting agency CAA section 111(a)(1)’s text and In no event, Congress specified, can ‘‘determines is achievable for such corroborated by legislative history. CAA application of BACT result in greater facility through application of section 111 was originally enacted as emissions than allowed by ‘‘any production processes and available part of the 1970 CAA Amendments. In applicable standard established methods, systems, and techniques, that enactment, state plans under CAA pursuant to section [1]11 or [1]12 including fuel cleaning, clean fuels, or section 111(d) were to establish ....’’48 To ensure such an exceedance treatment or innovative fuel combustion ‘‘emission standards’’ rather than does not occur, NSPS serve as the base techniques for control.’’ 52 Put simply, ‘‘standards of performance.’’ The EPA’s upon which BACT determinations are both the statutory text and the EPA’s CAA section 111(d) implementing made and are commonly viewed as the long-standing interpretation provide regulations, issued in 1975, provided BACT ‘‘floor.’’ 49 However, because that BACT is limited to control options that, in the case of existing sources, the Congress refers to ‘‘any applicable that can be applied to the source itself EPA would issue ‘‘emissions standard established pursuant to section and does not include control options guidelines,’’ that these guidelines would [1]11,’’ without reference to either that go beyond the source. ‘‘reflect the degree of emission subsection (b) or (d), any applicable Because CAA section 111 operates as reduction achievable through the existing source standard would also a floor to BACT, section 111 cannot be application of the [BSER] which (taking function as a BACT ‘‘floor.’’ 50 interpreted to offer a broader set of tools into account the cost of such reduction) The EPA has consistently taken the than are available under section 165. the Administrator has determined has position that BACT encompasses ‘‘all Also, because BACT is limited to been adequately demonstrated for ‘available’ control options . . . that have control options that are applied to an designated facilities,’’ and that state individual source, so too with section plans establishing standards of 47 Id. at 17, 44–46. 111. The explicit statutory link of CAA performance for existing sources would 48 42 U.S.C. 7479(3). section 111 standards to BACT, the be developed in light of these 49 GHG Permitting Guidance, 25 n.64 (‘‘While this statutory definition of the latter, the 54 guidance is being issued at a time when no NSPS guidelines. Then in 1977, Congress have been established for GHGs, permitting Agency’s consistent position that BACT replaced the term ‘‘emission standard’’ authorities must consider any applicable NSPS as must apply to and be achievable for a under CAA section 111(d) with the a controlling floor in determining BACT once any particular facility, and the text of CAA phrase ‘‘standard of performance’’—a such standards are final.’’). section 111(b) and 111(d), confirm the 50 Accordingly, certain commenters incorrectly phrase defined for all of CAA section argue that the scope of CAA section 169 is conclusion that the text of 111(a)(1) can 111 in section 111(a)(1). Thus, the irrelevant to regulating existing sources under CAA only be read to mean that standards of history behind CAA section 111(a)(1) is section 111(d) because only CAA section 111(b) performance (and the BSER on which relevant to understanding EPA’s standards (i.e., NSPS), not CAA section 111(d) they are predicated) are likewise existing-source standards, apply to sources subject authority for both sections 111(b) and to BACT. However, both CAA section 111(b) and (d) measures applied to individual (d). rely on the same definition of ‘‘standard of facilities. The 1970 enactment of CAA section performance’’ in CAA section 111(a), and the term’s (2) The Purpose of CAA Section 111 is 111 represents a choice between two statutory history (that is, its evolution through alternative approaches to direct federal repeated acts of Congress from 1970 to 1990) To Design, Build, Equip, Operate, and supports the conclusion that Congress intended for Maintain Individual Sources so as To regulation of stationary sources. Under the term to have the same meaning under both Reduce Emissions the House bill, the Administrator would programs. Between the 1970 and 1977 CAA have been authorized to establish Amendments, ‘‘standards of performance’’ applied Congress intended that CAA section ‘‘emission standards’’ for new sources of only to the regulation of new sources under CAA 111 would set minimum requirements 53 section 111(b); existing sources, on the other hand, pollutants that may contribute were required to meet ‘‘emission standards,’’ which substantially to endangerment of the 51 was an undefined term. See Public Law 91–604, 84 GHG Permitting Guidance, 24 (emphasis public health or welfare. These Stat. at 1683–84. Between the 1977 and 1990 CAA added). 52 standards would have ‘‘require[d] that Amendments, CAA section 111(a)(1) provided three 42 U.S.C. 7479(3) (emphasis added). context-specific definitions: One definition applied 53 In a 1978 BACT guidance document, the EPA new sources of such emissions be to all new stationary sources regulated under CAA explained that performance standards reflect designed and equipped to maximize section 111(b) (basing standards on the best emission limits ‘‘which can reasonably be met by emission control insofar as technological system of continuous emission all new or modified sources in an industrial category, even though some individual sources are technologically and economically reduction (‘‘TSCER’’)); the second applied only to 55 new fossil-fuel-fired sources regulated under CAA capable of lower emissions. Additionally, because feasible.’’ The House bill did not section 111(b) (basing standards on the TSCER and of resource limitations in the EPA, revision of new contain any analogous provisions for requiring a percent reduction in emissions); and a source standards must lag somewhat behind the existing sources. Nevertheless, the third applied to existing sources regulated under evolution of new or improved technology. House bill contemplated that under CAA section 111(d) (basing standards on the best Accordingly, new or modified facilities in some system of continuous emission reduction). See source categories may be capable of achieving lower CAA section 111, individual sources Public Law 95–95, 91 Stat. at 699–700. In 1990, emission levels that [sic] NSPS without substantial would be designed to emit less. however, Congress replaced the three separate economic impacts. The case-by-case BACT Under the Senate approach, the definitions with a singular definition of ‘‘standard approach provides a mechanism for determining Administrator would have established of performance’’ under CAA section 111(a)(1), to and applying the best technology in each individual apply throughout CAA section 111, based on situation. Hence, NSPS and NESHAP are Federal application of the BSER. See Public Law 101–549, guidelines for BACT determinations and establish imposed no such requirement. See Sierra Club, 657 104 Stat. at 2631. The legislative history of CAA minimum acceptable control requirements for a F.2d at 330 (‘‘we believe it is clear that this language section 111 demonstrates that Congress knew full BACT determination.’’ U.S. EPA, Guidelines for is far different from the words Congress would have well how to require either that the regulations Determining Best Available Control Technology, 3 chosen to mandate that the EPA set standards at the applying to new and existing sources would be (December 1978). maximum degree of pollution control different in definition and scope (as in both the Further, while some commenters suggest that the technologically achievable.’’). 1970 and 1977 versions of the Act) or that they BSER must reflect the ‘‘greatest degree of emission 54 40 FR 53346. would be the same and demonstrates that in 1990 control,’’ citing to section 113 of Senate bill 4358 55 H.R. Conf. Rep. No. 91–1783, 46 (December 17, they plainly chose the latter course. (S. 4358, at 6, 1970 Legis. Hist. at 554–55), Congress 1970) (emphasis added).

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‘‘standards of performance’’ for new designed, built, equipped, operated, and plants was the combination of three sources based ‘‘on the greatest emission maintained to reduce emissions.62 ‘‘building blocks’’: control possible through application of d. The CPP Unlawfully Exceeds the 1. Improving heat rate at individual [the] latest available control Scope of CAA Section 111(a)(1) and affected coal-fired steam generating technology.’’ 56 This would have Must Be Repealed units; ensured ‘‘that new stationary sources 2. Substituting increased generation are designed, built, equipped, operated, Before the CPP, the EPA had issued only six CAA section 111(d) from lower-emitting existing natural gas and maintained so as to reduce combined cycle units for decreased emission[s] to a minimum.’’ 57 rulemakings, in the form of a ‘‘guideline document’’ with corresponding generation from higher-emitting affected Accordingly, such standards would steam generating units; and have reflected ‘‘the degree of emission ‘‘emission guidelines.’’ 63 Conversely, 3. Substituting increased generation control which can be achieved through the EPA has issued around seventy CAA from new zero-emitting renewable process changes, operation changes, section 111(b) rulemakings, including energy generating capacity for decreased direct emission control, or other several for new fossil-fuel-fired steam- 64 generation from affected fossil fuel-fired methods.’’ 58 A separate provision generating units. Every one of those generating units. governing emissions of ‘‘selected rulemakings applied technologies, agents’’ authorized the Administrator to techniques, processes, practices, or This was the first time the EPA develop ‘‘emission standards’’ for both design modifications directly to interpreted the BSER to authorize new and existing sources.59 However, individual sources. measures wholly outside a particular the Senate ‘‘recognize[d] that certain old In the CPP, the EPA determined that source.65 The EPA reached this facilities may use equipment and the BSER for reducing CO2 emissions determination by interpreting the processes which are not suited to the from existing fossil fuel-fired power statutory term ‘‘application’’ as if it application of control technology. The instead read ‘‘implementation’’ (without 62 To be sure, the Agency does not contend that [Administrator] would be authorized a ‘‘system of emission reduction’’ is limited to pointing to any legal basis for equating therefore to waive the application of technological improvements. Indeed, the CAA those terms), and interpreting the phrase standards ....’’60 Amendments of 1990 make clear that CAA section ‘‘system of emission reduction’’ broadly The conference substitute settled on 111 is not to be limited to ‘‘technological systems.’’ as ‘‘a set of measures that work together See supra n. 51 (discussing amendments to CAA the language largely reflected in the section 111(a)(1)). But that does not mean CAA to reduce emissions and that are current wording of CAA section section 111 therefore authorizes basing BSER on implementable by the sources 111(a)(1); the differences between the generation shifting ‘‘measures,’’ such as substitute themselves.’’ 66 ‘‘As a practical matter,’’ generation from lower- or non-polluting power the Agency continued, ‘‘the ‘source’ 1970 enactment and the current version plants, which cannot be applied to individual are not relevant to this discussion. As sources like add-on controls or inherently lower- includes the ‘owner or operator’ of any explained above, both the Senate and emitting processes/practices/designs. building, structure, facility, or House bills contemplated only control 63 (See 1) Phosphate Fertilizer Plants, Final installation for which a standard of measures that would lead to better Guideline Document Availability, 42 FR 12022 performance is applicable.’’ 67 The EPA (March. 1, 1977) [Final Guideline Document: design, construction, operation, and Control of Fluoride Emissions from Existing then concluded that the breadth of a maintenance of an individual source 61 Phosphate Fertilizer Plants, March 1977, Doc. No. dictionary definition of the word and, in the case of existing sources EPA–450/2–77–005]; 2) Emission Guideline for ‘‘system’’ established the bounds of its Sulfuric Acid Mist, 42 FR 55796 (October 18, 1977); statutory authority, finding that the under the Senate bill, the waiver of 3) Kraft Pulp Mills; Final Guideline Document; standards if certain sources could not Availability, 44 FR 29828 (May 22, 1979) [Kraft phrase ‘‘ ‘system of emission reduction’ apply new control technologies. Pulping, ‘‘Control of Emissions from Existing . . . means a set of measures that source Accordingly, recognizing that a ‘‘system Mills,’’ March 1979, Doc. No. EPA–450/2–78–003b]; owners or operators can implement to 4) Primary Aluminum Plants; Availability of Final of emission reduction’’ is limited to Guideline Document, 45 FR 26294 (Apr. 17, 1980) control technologies or techniques that [Primary Aluminum: Guidelines for Control of 65 CAMR, which relied in part on a cap-and-trade can be integrated into an individual Fluoride Emissions from Existing Primary mechanism, was still ultimately ‘‘based on control source’s design or operation (i.e., add-on Aluminum Plants, December 1979, Doc. No. EPA– technology available in the relevant timeframe,’’ an 450/2–78–049b]; 5) Standards of Performance for approach fundamentally different than the CPP’s controls and lower-emitting processes/ New Stationary Sources and Guidelines for Control second and third ‘‘building blocks,’’ which were not practices/designs) is the only of Existing Sources: Municipal Solid Waste based on systems that could be applied to or at interpretation compatible with the Landfills, 61 FR 9905 (March 12, 1996); and 6) individual sources. Indeed, the rule explained that fundamental principle, reflected in the Standards of Performance for New and Existing the BSER refers to ‘‘the combination of the cap-and- Stationary Sources: Electric Utility Steam trade mechanism and the technology needed to original competing drafts of the Generating Units, 70 FR 28606 (May 18, 2005) achieve the chosen cap level.’’ 70 FR 28620 provision, that sources should be (hereafter, the Clean Air Mercury Rule or CAMR) (emphasis added). Accordingly, the Agency (vacated in New Jersey v. EPA, 517 F.3d 574 (D.C. concluded that it would be ‘‘reasonable to establish Cir. 2007) (reviewing an action that sought to shift a cap on [the basis of using a particular technology] 56 Id. (describing the approach under the Senate regulation of certain emissions from power plants and require compliance with that cap at a later amendment). from the CAA section 112 hazardous air pollutants point in time when the necessary technology 57 S. Rep. No. 91–1196, 15–16 (September 17, regime to the section 111 standards regime and becomes widely available.’’ Id. To the extent that 1970) (emphasis added). holding that the EPA failed to comply with the CAMR’s BSER (i.e., the combined control 58 Id. at 17. delisting requirements of section 112(c)(9) and thus technology and cap-and-trade program) is premised 59 Id. at 18–19. vacating the corresponding section 111 standards on application to the source category (as opposed 60 Id. at 19. for electric utility steam generating units). This list to an individual source), however, CAMR would be 61 References to ‘‘other alternatives,’’ ‘‘other of six CAA section 111(d) rulemakings does not unlawful. Trading as a compliance mechanism means,’’ or ‘‘other methods’’ in the Senate bill and include any guideline documents mandated by and under CAA section 111 is discussed in section accompanying report are not evidence that Congress carried out in compliance with CAA section 129 III.F.2.a of this preamble. intended to confer boundless discretion. In fact, (governing solid waste incinerator units). 66 80 FR 64762 (citing the Oxford Dictionary of these terms must be interpreted in light of the other 64 See generally 40 CFR part 60, subparts D– English (3rd ed.) (2010), among others). The EPA specifically listed control techniques. For example, TTTT. In fact, steam-generating units were among reached this interpretation in part on the the Senate bill’s reference to ‘‘control technology,’’ the first sources regulated under section 111(b). See assumption that ‘‘the terms ‘implement’ and ‘apply’ ‘‘processes,’’ and ‘‘operating methods’’ are properly 36 FR 24876 (December 23, 1971) (promulgating are used interchangeably.’’ See Legal Memorandum read to denote measures that can be applied to standards for steam generators, portland cement Accompanying Clean Power Plan for Certain Issues individual sources—and ‘‘other alternatives’’ must plants, incinerators, nitric acid plants, and sulfuric at 84 n.175. be interpreted ejusdem generis: in the same fashion. acid plants). 67 80 FR 64762.

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achieve an emission limitation provisions in the Act, used a term system (without anything more and applicable to their existing source.’’ 68 (‘‘application’’) meaningfully different without any particular object of the In reviewing the CPP, the EPA than the one CPP read into that section system being implied), but an owner/ concludes that the interpretation relied (‘‘implementation’’)—and the term that operator must apply a system to another upon in the CPP ignored or Congress actually used is one that object (i.e., the source). CAA section 111 misinterpreted critical statutory reflects the CAA’s other source-focused illustrates this distinction. Congress 72 elements and rules of statutory standard-setting provisions. provided, in CAA section 111(d)(1), that construction. After reconsidering the The Act is replete with provisions state plans must provide ‘‘for the relevant statutory text, structure, and calling for the ‘‘implementation’’ of ‘‘a implementation and enforcement of purpose, the Agency now recognizes system,’’ 73 ‘‘control measures,’’ 74 such standards of performance,’’ but that Congress ‘‘spoke to the precise ‘‘emission reduction measures,’’ 75 and question’’ of the scope of CAA section even ‘‘steps, by owners or operators of that EPA’s regulations must also permit 111(a)(1) and clearly precluded the stationary sources,’’ 76 but CAA section a state ‘‘in applying a standard of unsupportable reading of that provision 111(a)(1) is not among them. Congress performance to any particular source’’ to asserted in the CPP. Accordingly, this defines ‘‘implementing’’ under CAA take into consideration, among other action repeals the CPP.69 section 105(a)(1)(A) as ‘‘any activity factors, the remaining useful life of the related to the planning, developing, existing source to which such standard (1) The CPP Is Impermissibly Based on establishing, carrying-out, improving, or applies. Thus, whereas state plans more ‘‘Implementation’’ Rather Than maintaining of such programs [for the broadly ‘‘implement’’ the CAA section ‘‘Application’’ of the BSER prevention and control of air pollution 111(d) program, states ‘‘appl[y]’’ CAA section 111(a)(1) provides that or implementation of national primary standards to individual sources. standards of performance reflect an and secondary ambient air quality Congress could have defined a standard emission limitation achievable ‘‘through standards].’’ 77 But again, ‘‘applying’’ is of performance as reflecting the the application of the [BSER] . . . .’’ In not included in this list defining ‘‘implementation of the BSER by the the Legal Memorandum accompanying ‘‘implementing.’’ In the case of the Act’s owner or operator of a stationary the CPP, the Agency stated in a footnote standard-setting provisions, on the other source,’’ but Congress did not. Simply that ‘‘the terms ‘implement’ and ‘apply’ hand, BACT and maximum achievable put, equating the terms ‘‘implement’’ 70 are used interchangeably.’’ Thus, the control technology (MACT) and ‘‘apply’’ conflicts with the plain Agency decided, ‘‘the system must be requirements—like CAA section 111— language of CAA section 111(a)(1) and limited to measures that can be are based on ‘‘application of’’ control their use throughout the Act; this implemented—‘‘appl[ied]’’—by the measures to individual sources. conflict is compounded by the sources themselves ....’’71 But Functionally, the two terms send conflation of the source with its owner, Congress does not in fact use these different signals. ‘‘Implementation’’ different concepts that are separately terms interchangeably in the Act, and in requires a subject and direct object (I CAA section 111(a)(1), as in other implement the plan), whereas defined, see CAA section 111(a)(3), (5). source-focused standard-setting ‘‘application’’ requires a subject, direct Now take generation shifting, the object, and indirect object (I apply the basis for the second and third ‘‘building 68 Id. The EPA acknowledged, nonetheless, that protocol to the subject). That is, an blocks’’ of the CPP’s BSER. The CPP ‘‘regulatory requirements’’ in the CPP would be owner or operator can implement a recognized that an owner or operator of based ‘‘on measures the affected EGUs can implement to assure that electricity is generated a regulated source can ‘‘shift’’ power- with lower emissions’’ and that ‘‘do not require 72 See, e.g., 42 U.S.C. 7412(d)(2) (describing producing operations to a different reductions in the total amount of electricity MACT as ‘‘through application of measures, facility, such as a nuclear power plant, processes, methods, systems or techniques produced.’’ Id. at 64778. But the EPA did not through bilateral contracts for capacity exclude such ‘‘measures’’ (i.e., reduced utilization including, but not limited to, measures which—(A) and demand-side energy efficiency) as being reduce the volume of, or eliminate emissions of, or by reducing utilization. But just outside the scope of the dictionary definition of such pollutants through process changes, because generation shifting is ‘‘system.’’ Indeed, the EPA believed they would substitution of materials or other modifications, (B) ‘‘implementable’’ by an owner or play an important compliance role under the CPP. enclose systems or processes to eliminate See id. at 64753–657 (discussing reduced utilization emissions, (C) collect, capture or treat such operator (i.e., just because an owner or and demand-side energy efficiency measures under pollutants when released from a process, stack, operator of a given source can subsidize rate-based and mass-based state plans). See also n. storage or fugitive emissions point, (D) are design, generation elsewhere that will reduce equipment, work practice, or operational standards 83, infra. demand for generation from that) does 69 One commenter asserted that, rather than ..., or (E) are a combination of the above;’’); id. repeal the CPP, the EPA should retain building at 7479(3) (describing BACT as ‘‘achievable for such not mean that generation shifting can be block 1. As explained in the Proposed Repeal, facility through application of production processes ‘‘applied’’ to the source.78 And indeed, however, while heat rate improvement measures and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or the CPP shifted generation from one may be considered in a CAA section 111 standard, regulated source category to another and ‘‘building block 1, as analyzed, cannot stand on its innovative fuel combustion techniques for own. 80 FR 64758 n. 444; see also id. at 64658 control’’). from both those regulated source (discussing severability of the building blocks).’’ 82 73 42 U.S.C. 7412(r)(7)(H)(vii) (‘‘the Administrator categories together to other forms of FR 48039 n.5. Accordingly, today’s action repeals . . . shall develop and implement a system for electricity generation outside any the whole of the CPP and does not retain building providing off-site consequence analysis block 1 as the BSER. In any case, as discussed in information’’). regulated source category. Because the the ACE proposal, ‘‘building block 1, as constructed 74 Id. 7511a(b)(2) (‘‘Such plan provisions shall CPP is premised on ‘‘implementation of in [the] CPP, does not represent an appropriate provide for the implementation of all reasonably the BSER by a source’s owner or BSER, and ACE better reflects important changes in available control measures’’). operator’’ and not ‘‘application of the the formulation and application of the BSER in 75 Id. 7412(i)(5)(C) (‘‘prior to implementation of accordance with the CAA.’’ 83 FR 44756 emissions reduction measures’’). [BSER]’’ to an individual source, the (discussing the EPA’s change in approach to 76 Id. 7410(a)(2)(F) (emphasis added) (‘‘require, as rule contravenes the plain language of analyzing heat rate improvement measures). See may be prescribed by the Administrator—(i) the CAA section 111(a)(1) and must be section III for the EPA’s evaluation of heat rate installation, maintenance, and replacement of improvement measures under ACE. equipment, and the implementation of other repealed. 70 Legal Memorandum Accompanying Clean necessary steps, by owners or operators of Power Plan for Certain Issues at 84 n.175. stationary sources’’). 78 A contract, for example, is neither a ‘‘system’’ 71 80 FR 64720. 77 42 U.S.C. 7405(a)(1)(A). nor ‘‘applied to’’ a source.

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(2) Dictionary Definitions Cannot Confer measures’’ so long as they were The Court explained that, ‘‘no matter an ‘‘Infinitude’’ of Possibilities measures that could be implemented how important the principle of ISO Although the word ‘‘system’’ is not through obligations placed on the owner independence is to the Commission, 82 defined in the CAA, ‘‘[t]he meaning—or or operator of a source. At both steps, ‘[the FERC Order] is merely a ambiguity—of certain words or phrases the CPP relied on an absence of an regulation,’ and cannot be the basis to may only become evident when placed express textual commandment override the limitations of ‘statutes 79 forbidding these open-ended enacted by both houses of Congress and in context.’’ Thus, the issue is not 88 whether the dictionary provides a broad interpretations. That methodology is signed into law by the president.’’ The definition of the word ‘‘system,’’ but untenable. court reasoned that both ‘‘the history of Construing ‘‘system’’ to offer such an what are the permissible bounds of the the application of this and similar ‘‘infinitude’’ 83 of possibilities would legal meaning of the word ‘‘system.’’ statutes and by the implications of have significant implications. The fact The precise question in this case is FERC’s amorphous defining of the term’’ is, fossil fuel-fired EGUs operate within whether the word ‘‘system’’ as used in firmly barred FERC’s attempt to stretch an interconnected ‘‘system.’’ Thus, any its authority.89 On this point, Congress’s CAA section 111 encompasses any ‘‘set action that would affect electricity rates intent is ‘‘crystal clear’’—FERC had no of measures’’ 80 to reduce emissions, or will have generation-shifting and authority to ‘‘reform and regulate the whether it is limited to lower-emitting potentially emission-reduction governing body of a public utility under processes, practices, designs, and add- consequences. By the very nature of the the theory that corporate governance on controls that are applied at the level interconnected grid, EPA’s authority to constitutes a ‘practice’ for ratemaking of the individual facility. determine the BSER under CAA section 90 ‘‘System,’’ as used in CAA section authority purposes.’’ 111 is, under the Agency’s prior The EPA’s prior interpretation 111, cannot be read to encompass any interpretation, stretched to every aspect underlying the CPP is untenable for the ‘‘set of measures’’ that would—through of the entire power sector. This cannot same reasons. The EPA began, like some chain of causation—lead to a have been the intent of the Congress that FERC, with an ordinary statutory term reduction in emissions. As an initial enacted CAA section 111. (‘‘system’’) and then read into it matter, Congress did not use the phrase The D.C. Circuit has previously maximally broad authority to shift ‘‘set of measures’’ in CAA section 111. disapproved of a federal agency’s generation away from coal-fired and gas- On its own, this phrase could create expansive reading of its authority in fired power plants to other electricity unbounded discretion in the Agency. analogous circumstances. In Cal ISO, producers on the basis that generation Moreover, even when the term the D.C. Circuit vacated the Federal shifting would cause those regulated ‘‘measures’’ is used elsewhere in the Energy Regulatory Commission’s sources to be displaced and therefore Act, it is intended to be limited. For (‘‘FERC’’) attempt to reform a utility’s not be a source of emissions. But for example, CAA section 112 emission governing structure on the theory that nearly 45 years prior to the CPP, this standards are derived ‘‘through FERC’s statutory authority over Agency had never understood CAA application of measures, processes, ‘‘practice[s] . . . affecting [a] rate’’ gave section 111 to confer upon it the methods, systems or techniques.’’ FERC ‘‘authority to regulate anything implicit power to restructure the utility ‘‘Measures,’’ are further defined to done by or connected with a regulated industry through generation-shifting include measures which: utility, as any act or aspect of such an measures. Indeed, the EPA has issued • Reduce the volume of, or eliminate entity’s corporate existence could affect, many rules under CAA section 111 emissions of, such pollutants through in some sense, the rates.’’ 84 (both the limited set of existing-source process changes, substitution of Upholding FERC’s interpretation of rules under CAA section 111(d) and the materials or other modifications, ‘‘practice’’ to include replacing the • enclose systems or processes to much larger set of new-source rules governing board of California’s under CAA section 111(b)). In all those eliminate emissions, Independent System Operator • collect, capture or treat such rules, the EPA determined that the Corporation, the Court warned, could pollutants when released from a BSER consisted of add-on controls or authorize FERC to ‘‘dictate the choice of process, stack, storage or fugitive lower-emitting processes/practices/ CEO, COO, and the method of emissions point, designs that can be applied to • are design, equipment, work contracting for services, labor, office individual sources.91 space, or whatever one might imagine The CPP deviated from this settled practice, or operational standards 85 (including requirements for operator ....’’ But where ‘‘the text and understanding of CAA section 111. By training or certification) as provided in reasonable inferences from it give a embracing an expansive dictionary clear answer . . . that . . . is ‘the end definition of ‘‘system,’’ 92 the EPA subsection (h) of CAA section 111, or 86 • are a combination of the above.81 of the matter.’ ’’ There is no need, ignored that the text and structure of the ‘‘Measures,’’ as Congress provides, are therefore, to consider ‘‘such parade of Act expressly limited the scope of the 87 limited to control measures that can be horribles.’’ term ‘‘system’’ in a way that foreclosed integrated into an individual source’s the CPP’s expansive definition. The design or operation. ‘‘Measures’’ do not 82 The CPP identified purported limitations to the Agency concluded that actions that underlying legal interpretation (e.g., ‘‘system’’ does would cause generation to shift from include shifting production away from not extend to measures that directly target the regulated source. The CPP read consumer behavior), see 80 FR 64776–779, but higher-emitting to lower- or non- ‘‘system’’ in CAA section 111(a)(1) to those purported limitations still led to an mean any ‘‘set of measures,’’ relying on interpretation that far exceeded the bounds of the 88 Id. at 404. authority actually conferred by Congress on the 89 the dictionary, and then determined that Id. at 402. EPA. 90 Id. there was no limitation on those ‘‘set of 83 See Cal. Indep. Sys. Operator Corp. v. FERC, 91 See supra n. 66 (discussing CAMR). 372 F.3d 395, 401 (D.C. Cir. 2004) (‘‘Cal ISO’’). 92 80 FR at 64720 (defined by the Oxford 84 79 King v. Burwell, 135 S. Ct. 2480, 2489 (2015) Id. Dictionary of English as ‘‘a set of things or parts (quoting FDA v. Brown & Williamson Corp., 529 85 Id. at 403. forming a complex whole; a set of principles or U.S. 120, 132 (2000)). 86 Id. at 401 (citing Brown v. Gardiner, 513 U.S. procedures according to which something is done; 80 80 FR 64762. 115, 120 (1994)) (emphasis in original). an organized scheme or method; and a group of 81 42 U.S.C. 7412(d)(2). 87 Id. at 403. interacting, interrelated, or independent elements’’).

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emitting power generators represent a amount of money involved for regulated with the interpretation underlying the means of reducing CO2 emissions from and affected parties, the overall impact CPP, as it can place obligations on the existing fossil fuel-fired electric on the economy, the number of people owners and operators over whom it does generating units—and thus constituted a affected, and the degree of congressional have authority to carry out a ‘‘system’’ ‘‘system’’ within the meaning of CAA and public attention to the issue.’’ 95 that goes beyond the EPA’s actual direct section 111. Taken to its logical end, While the EPA believes that today’s reach). Appealing to such factors as however, any action affecting a action is based on the only permissible ‘‘cost’’ and ‘‘feasibility’’ 98 as putative generator’s operating costs could impact reading of the statute and would reach constraints on EPA’s authority, its order of dispatch and lead to that conclusion even without furthermore, does not provide any generation shifting. This could include, consideration of the major question assurance—indeed, the D.C. Circuit for example, minimum wage doctrine, the EPA believes that that traditionally ‘‘grant[s] the [A]gency a requirements or production caps. It is doctrine should apply here and that its great degree of discretion in balancing axiomatic that ‘‘Congress . . . does not application confirms the unambiguously them.’’ 99 Thus, it is not reasonable to alter the fundamental details of a expressed intent of CAA section 111. find in this statutory scheme regulatory scheme in vague terms or The CPP is a major rule. At the time the Congressional intent to endow the ancillary provisions—it does not, one CPP was promulgated, its generation- Agency with discretion of this breadth might say, hide elephants in shifting scheme was projected to have to regulate a fundamental sector of the mouseholes.’’ 93 Because Congress billions of dollars of impact on economy. clearly did not authorize CAA section regulated parties and the economy, As a final point, the CPP not only 111 standards to be based on any ‘‘set would have affected every electricity advanced a broad reading of CAA of measures,’’ the EPA need not address customer (i.e., all Americans), was section 111(a)(1), the rule applied that the potential consequences of deviating subject to litigation involving almost interpretation to ‘‘the source category as from our historical practice under CAA every State in the Union, and, as a whole’’ 100 to cause a reduction in section 111 when determining whether discussed in the following section, coal-fired generation.101 To do so, the the CPP’s interpretation was a would have disturbed the state-federal CPP relied on ‘‘emission reduction permissible reading of the statute. Like and intra-federal jurisdictional scheme. approaches that focus on the machine as the D.C. Circuit in Cal ISO, the EPA Building blocks 2 and 3 are far afield a whole—that is, the overall source concludes that the text and reasonable from the core activity of CAA section category—by shifting generation from inferences from it give a clear answer: 111—indeed, no section 111 rule of the dirtier to cleaner sources in addition to ‘‘system’’ does not embody any scores issued has ever been based on emission reduction approaches that conceivable ‘‘set of measures’’ that generation shifting since the enactment focus on improving the emission rates of might lead to a reduction in emissions, of CAA section 111 in 1970. Because the individual sources.’’ 102 Consequently, it but is limited to measures that can be CPP is a major rule, the interpretative was designed as ‘‘an emission guideline applied to and at the level of the question raised in CAA section 111(a)(1) for an entire category of existing sources individual source (i.e., whether a ‘‘system of emission ....’’103 However, by acting as a reduction’’ can consist of generation- guideline for an entire category, the CPP (3) Basing BSER on Generation Shifting shifting measures) must be supported by ignored the statutory directive to Is Not Authorized by Congress a clear-statement from Congress.96 As establish standards for sources and On the question of whether basing explained above, however, it is not— overextended federal authority into BSER on generation shifting is indeed, Congress has directly spoken to matters traditionally reserved for states: precluded by the statute, the major this precise question and precluded the ‘‘administration of integrated resource question doctrine instructs that an interpretation of CAA section 111 planning and . . . utility generation and agency may issue a major rule only if advanced by the EPA in the CPP. resource portfolios.’’ 104 Further evidence comes from the Congress has clearly authorized the (4) Basing BSER on Generation Shifting notable absence of a valid limiting agency to do so. As the Supreme Court Encroaches on FERC and State principle to basing a CAA section 111 has stated, ‘‘We expect Congress to Authorities speak clearly if it wishes to assign to an rule on generation shifting. In the CPP, agency decisions of vast ‘economic and the EPA explained that the Agency ‘‘has The Federal Power Act (FPA) political significance.’ ’’ 94 Although the generally taken the approach of basing establishes the dichotomy between Court has not articulated a bright-line regulatory requirements on controls and federal and state regulation in the test, its cases indicate that a number of measures designed to reduce air electricity sector by drawing ‘‘a bright factors are relevant in distinguishing pollutants from the production process line easily ascertained, between state 105 major rules from ordinary rules: ‘‘the without limiting the aggregate amount and federal jurisdiction.’’ The of production.’’ 97 But by shifting focus Supreme Court recently observed that, 93 Whitman v. American Trucking, 531 US 457, to the entire grid (which includes under the FPA, FERC has ‘‘exclusive 466 (2001). See also Letter from Neil Chatterjee, regulated sources and non-sources), the jurisdiction over wholesale sales of Chairman, Fed. Energy Reg. Comm’n, to Andrew Agency could empower itself to order electricity in the interstate market’’ and Wheeler, Administrator, EPA at 5 (Oct. 31, 2018) (Docket ID# EPA–HQ–OAR–2017–0355–24053) the wholesale restructuring of any 98 See Legal Memorandum Accompanying Clean (‘‘The Supreme Court has explained several times industrial sector (whether or not it has Power Plan for Certain Issues at 117–20. that Congress ‘does not alter the fundamental authority to even regulate all the actors 99 Lignite Energy Council v. EPA, 198 F.3d 930, details of a regulatory scheme in vague terms or within that sector—so long, in keeping ancillary provisions—it does not, one might say, 933 (D.C. Cir. 1999). 100 hide elephants in mouseholes.’ The challenges 80 FR 64727. posed by global climate change present ‘question[s] 95 U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 422– 101 Id. at 64665. of deep ‘economic and political significance’ that 23 (D.C. Cir. 2017) (internal citations omitted). 102 80 FR 64725–726; see also id. at 64726 (noting [are] central to [the] statutory scheme[s]’ 96 The EPA acknowledges that for the reasons ‘‘consideration of emission reduction measures at administered by both the Agency and the noted above, its position on this major rule issue the source-category level’’). Commission.’’) (internal citation omitted). has evolved since the EPA addressed it in the CPP, 103 CPP RTC Chapter 1A, 170–72. 94 Utility Air Regulatory Group v. EPA, 573 U.S. 80 FR 64,783. See FCC v. Fox Television Stations, 104 New York v. FERC, 535 US 1, 24 (2002). 302, 324 (2014) (quoting Brown & Williamson, 529 Inc., 556 U.S. 502 (2009). 105 Fed. Power Comm’n v. S. Cal. Edison Co., 376 U.S. at 159). 97 80 FR 64762. U.S. 205, 215 (1964).

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establishing the associated just and domain or vice-versa, and such generation-shifting measures within the reasonable rates and charges.106 regulation that would achieve indirectly states’ and FERC’s purview in the BSER, However, ‘‘the law places beyond FERC what could not be done directly is also rather than relying on traditional and leaves to the States alone, the prohibited.112 Just as ‘‘FERC has no controls within the EPA’s purview, the regulation of ‘any other sale’—most authority to direct or encourage EPA established a rule predicated notably, any retail sale—of generation’’ 113 absent clear authority largely upon actions in the power sector electricity.’’ 107 Therefore, under the from Congress, neither does (indeed, a outside of the scope of the Agency’s FPA, Congress limited the jurisdiction fortiori so much the less does) the authority to compel. Some generation of FERC ‘‘to those matters which are not EPA.114 The EPA has no more ability to shifting may be an incidental effect of subject to regulation by the States,’’ ‘‘do indirectly what it could not do implementing a properly established including ‘‘over facilities used for the directly’’ than FERC would with respect BSER (e.g., due to higher operation generation of electric energy.’’ 108 to matters that the FPA left to the states. costs), but basing the BSER itself on Indeed, ‘‘the States retain their Historically, any traditional generation shifting improperly traditional responsibility in the field of environmental regulation of the power encroaches on FERC and state regulating electrical utilities for sector may have incidentally affected authorities. determining questions of need, these domains without indirectly or Further, the actual effect of the CPP as reliability, cost, and other related state directly regulating within them. For anticipated by the EPA was that the concerns.’’ 109 ‘‘Such responsibilities example, an on-site control, such as a states would impose standards of include ‘‘authority over the need for scrubber, may affect rate determinations performance based on the EPA’s BSER, additional generating capacity [and] the as it is factored into potentially and sources would largely rely on type of generating facilities to be recovered costs. The CPP, however, generation-shifting measures to comply licensed.’’ 110 Thus, the FPA ‘‘not only included a BSER that was based largely with those standards. In its analysis of establishes an affirmative grant of on measures and subjects exclusively potential energy impacts associated authority to the federal government to left to FERC and the states, rather than with the rule, the CPP modeling regulate wholesale sales and inflicting only permissible, incidental ‘‘presume[d] policies that lead to transmission of electricity in interstate effects on those domains. generation shifts and growing use of commerce, but also draws a line where The CPP identified as part of the demand-side [energy efficiency] and that exclusive authority ends and the BSER generation-shifting measures. renewable electricity generation out to state’s exclusive authority to regulate Increased renewable generation 2029.’’ 116 In this manner, the CPP could other matters . . . begins.’’ 111 capacity, building block 3, falls within directly shape the generation mix of a Courts have observed that regulation a state’s authority to determine its complying state. It is clear from the FPA of other areas may incidentally affect generation mix and to direct the that Congress intended the states to areas within these exclusive domains, planning and resource decisions of have that authority, not the relevant but there is no room for direct utilities under its jurisdiction.115 federal agency, FERC. Given that even regulation by States in areas of FERC Additionally, increased utilization of FERC would not have such authority, natural gas combined cycle (NGCC) the only reasonable inference is that 106 Hughes v. Talen Energy Marketing, LLC, 136 plants, building block 2, falls within Congress did not intend to give the EPA S.Ct. 1288, 1291–92 (2016) (citing 16 U.S.C. that state authority and within FERC’s that authority via CAA section 111.117 824(b)(1), 824d(a) and 824e(a)). authority to determine just and 107 Id. at 1292 (quoting FERC v. Electric Power Federal law ‘‘may not be interpreted to Supply Assn., 136 S.Ct. 760, 766 (2016) (EPSA) reasonable rates by requiring a reach into areas of state sovereignty (quoting 824(b)). The States’ reserved authority conclusion that the associated costs of unless the language of the federal law includes control over in-state ‘‘facilities used for the increased utilization rates are compels the intrusion,’’ 118 and, as generation of electric energy.’’ 824(b)(1); see Pacific reasonable, and, further ignores these Gas & Elec. Co. v. State Energy Resources discussed above, basing BSER on Conservation and Development Comm’n, 461 U.S. areas of exclusive regulation by generation shifting is not authorized by 190, 205 (1983) (‘‘Need for new power facilities, neglecting to consider changes to Congress here. Such an interpretation is their economic feasibility, and rates and services, regional transmission organization also consistent with the cooperative- are areas that have been characteristically governed (RTO) and ISO dispatch procedures federalism framework of the CAA.119 by the States.’’). necessary to achieve the increased 108 16 U.S.C. 824(a), 824(b)(1); see also id. While the EPA has previously asserted 824o(i)(2) (‘‘This section does not authorize . . . utilization rates. By including that the CPP only provides emissions [FERC] to order the construction of additional guidelines, leaving the states with the generation or transmission capacity’’). There are 112 Hughes, 136 S. Ct. at 1297–98. See also EPSA, flexibility to create their own other jurisdictional limitations under the FPA. For 753 F.3d at 221, 224 (‘‘the Federal Power Act 120 example, publicly-owned and many cooperatively unambiguously restricts FERC from regulating the compliance measures, the guidelines owned utilities are subject to only some elements retail market’’ and quoting Altamont Gas are based on actions outside of the of the FPA. Id. 824(f), 824(b)(2). And entities not Transmission Co. v. FERC, 92 F.3d 1239, 1248 (D.C. EPA’s authority to directly or indirectly operating in interstate commerce, i.e., entities in Cir. 1996)) (noting that ‘‘FERC cannot ‘do indirectly compel and the practical effect of Alaska, Hawaii, and the Electric Reliability Council what it could not do directly’ ’’). of Texas portion of Texas, are also subject to only 113 CRS, The Federal Power Act (FPA) and limited FERC jurisdiction. Electricity Markets, 9 (March 10, 2017), available at 116 80 FR 64927. 109 Pacific Gas & Elec. Co. v. State Energy https://www.everycrsreport.com/files/20170310_ 117 See Solid Waste Agency of Northern Cook Resources Conservation and Development Comm’n, R44783_dd3f5c7c0c852b78f3ea62166ac5ebdbd County v. U.S. Army Corps of Engineers, 531 U.S. 461 U.S. 190, 205 (1983). 1586e12.pdf. 159, 172 (2001) (citing Edward J. DeBartolo Corp. 110 Id. at 212. 114 See 80 FR 64745 (explaining that ‘‘the BSER v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988)). 111 Dennis, Jeffrey S., et al., Federal/State also reflects other CO2 reduction strategies that Jurisdictional Split: Implications for Emerging encourage increases in generation from lower- or 118 Am. Bar Ass’n v. FTC, 430 F.3d 457 (D.C. Cir. Electricity Technologies, 3 (December 2016), zero-carbon EGUs’’) (emphasis added); cf. 42 U.S.C. 2005). available at https://www.energy.gov/sites/prod/ 7651(b) (providing that one purpose of Title IV (but 119 See, e.g., 42 U.S.C. 7401(b)(3) and (4), 7402(a) files/2017/01/f34/Federal%20State not the CAA overall) is to encourage the ‘‘use of and (b), and 7416. %20Jurisdictional%20Split-Implications%20for renewable and clean alternative technologies’’). 120 80 FR 64762 (‘‘States will have the flexibility %20Emerging%20Electricity%20Technologies.pdf; 115 See S.Cal. Edison Co., 71 FERC 61,269 (June to choose from a range of plan approaches and see also 16 U.S.C. 824o(i)(2) (‘‘This section does not 2, 1995); see also Pacific Gas & Elec. Co. v. State measures, including numerous measures beyond authorize . . . [FERC] to order the construction of Energy Resources Conservation and Development those considered in setting the CO2 emission additional generation or transmission capacity’’). Comm’n, 461 U.S. 190, 205, 212 (1983). performance rates’’).

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implementing the guidelines is that CAA section 302(l) provides that a . . . .’’). Second, one of the CAA many of those actions likely must be ‘‘standard of performance’’ means ‘‘a section 302 definitions expressly states taken. requirement of continuous emission that it is supplanted by provision- reduction, including any requirement specific definitions.130 (5) Commenters’ Attempt To relating to the operation or maintenance However, the Agency was wrong to Recharacterize the BSER in the CPP as of a source to assure continuous conclude that ‘‘a requirement of Applying to Sources By Pointing to reduction.’’ Previously, the Agency has continuous emission reduction’’ means ‘‘Reduced Utilization’’ Is Unavailing argued that the definitions in CAA only that a standard of performance and Clearly Precluded by the CAA section 111(a)(1) ‘‘are more specific’’ need apply ‘‘on a continuous basis.’’ In (a) The CPP Rejected ‘‘Reduced and therefore controlling,126 but, to the fact, Congress used such phrasing in the Utilization’’ as a ‘‘System’’ for Purposes extent that section 302(l) applies, that preceding definition under CAA section of CAA Section 111. definition is met when a standard 302(k). The terms ‘‘emission limitation’’ ‘‘applies continuously in that the source and ‘‘emission standard’’ mean ‘‘a Some commenters claim reduced is under a continuous obligation to meet requirement . . . which limits the utilization can be ‘‘applied to’’ a source its emission rate ....’’127 quantity, rate, or concentration of as an ‘‘operational method’’ for reducing Here, the Agency concludes that CAA emissions of air pollutants on a emissions. In the CPP, however, the section 302(l) is relevant to interpreting continuous basis, including any EPA was clear that reduced utilization 128 CAA section 111. Statutes should be requirement relating to the operation or on its own ‘‘does not fit within our construed ‘‘so as to avoid rendering maintenance of a source to assure historical and current interpretation of superfluous’’ any statutory language: ‘‘a continuous emission the BSER.’’ 121 The EPA explained: statute should be construed so that reduction....’’ 131 Whereas emission ‘‘Specifically, reduced generation by effect is given to all its provisions, so limitations and emission standards itself is about changing the amount of that no part will be inoperative or apply ‘‘on a continuous basis, including product produced rather than producing superfluous, void or any requirement . . . to assure the same product with a process that 129 insignificant....’’ Under the CAA, continuous emission reduction,’’ has fewer emissions,’’ 122 and the EPA only section 111 requires the standards of performance must impose has historically based pollution control establishment of ‘‘standards of a ‘‘requirement of continuous emission on ‘‘methods that allow the same performance.’’ Thus, ignoring the reduction.’’ amount of production but with a lower- generally applicable definition in CAA 123 When Congress made explicit the emitting process.’’ In proposing to section 302(l) in interpreting CAA requirement for ‘‘continuous emission repeal the CPP, the EPA noted that, section 111 would read it out of the reduction,’’ it was to ‘‘affirm the ‘‘[w]hereas some emission reduction statute. Nor is this a situation where decisions of four U.S. courts of appeals measures (such as a scrubber) may have Congress provided that the provision- cases that the [A]ct requires continuous an incidental impact on a source’s specific definition in CAA section 111 emission reductions to be applied.’’ 132 production levels, reduced utilization is was to supplant the general definition in Thus, as scholar David Currie observed, directly correlated with a source’s CAA section 302(l). First, the opening 124 output.’’ Accordingly, ‘‘predicating a phrase of CAA section 302 indicates 130 See CAA section 302(j) (which defines ‘‘major section 111 standard on a source’s non- that the section 302 definitions apply stationary source’’ and ‘‘major emitting facility’’ and performance would inappropriately ‘‘[w]hen used in this chapter.’’ By begins ‘‘Except as otherwise expressly provided, . . . .’’). inject the Agency into an owner/ contrast, the definitions provisions in operator’s production decisions.’’ 125 131 42 U.S.C. 7602(k) (emphasis added). See H.R. some statutes begins with text that 6161, Rep. No. 95–294, 92 (May 12, 1977) The EPA is finalizing our proposal that expressly provides that the general (‘‘Without an enforceable emission limitation which reduced utilization cannot be statutory definitions are supplanted by will be complied with at all times, there can be no considered a ‘‘best system of emission provision-specific definitions. See, e.g., assurance that ambient standards will be attained reduction’’ under CAA section 111(a)(1) and maintained. Any emission limitation under the Clean Water Act (CWA) section 502 (33 [CAA], therefore must be met on a constant because, as the EPA said in the CPP, the U.S.C. 1362) (which begins ‘‘Except as basis....’’) (emphasis added). EPA has never identified reduced otherwise specifically provided 132 H.R. Conf. Rep. No. 95–564, 514 (Aug. 3, utilization as the BSER and the EPA 1977); see also H.R. No. 95–294, 190 (May 12, 1977) (‘‘To make clear the committee’s intent that interprets CAA section 111 to authorize 126 See Brief of Respondent at 129–30, New Jersey intermittent or supplemental control measures are emission limits based on controls that v. EPA, No. 05–1097 (consolidated) (D.C. Cir. May not appropriate technological systems for new reduce emissions without restricting 4, 2007). sources (and to prevent the litigation which has production. In addition, because the 127 80 FR 64841. See also 70 FR 28617 (‘‘Even if been conducted with respect to use of intermittent CPP was not premised on ‘‘reduced the 302(l) definition applied to the term ‘standard or supplemental systems at existing sources), the of performance’ as used in section 111(d)(1), [the] committee adopted language clearly stating that utilization’’—indeed, the EPA expressly EPA believes that a cap-and-trade program meets continuous emission reduction technology would renounced that as a basis for the CPP— the definition. . . . That is, there is never a time be required to meet the requirements of this commenters’ attempt to justify the CPP when sources may emit without needing section.’’); and id. at 92 (‘‘By defining the terms on that basis is unavailing. allowances to cover those emissions.’’). ‘emission limitation,’ ‘emmission [sic] standard,’ 128 Indeed, the provisions of CAA section 302 are and ‘standard of performance,’ the committee has (b) Standards of Performance Cannot Be supplanted by provision-specific definitions only to made clear that constant or continuous means of Based on Reduced Utilization the extent that those specific provisions ‘‘expressly’’ reducing emissions must be used to meet these do so. See, e.g., Alabama Power v. Costle, 636 F.2d requirements.’’). For example, ‘‘The Sixth Circuit Even if the CPP could be reframed as 323, 370 (D.C. Cir. 1979) (holding that CAA section has agreed with the Fifth, upholding the EPA’s 169(1) is controlled by the general definition in rejection of a provision that would have allowed employing reduced utilization, it would CAA section 302(j) with respect to the ‘‘rule ‘intermittent’ controls when necessary to meet fail to satisfy statutory criteria. requirement’’ in CAA section 302(j) that is not ambient standards, adding on the basis of a stray expressly supplanted by CAA section 169(1)). remark of the Supreme Court in Train that 129 Hibbs v. Winn, 542 U.S. 88, 101 (2004). Cf. ‘emission standards’ were only those limiting the 121 80 FR 64780. Brief of Respondent at 129, New Jersey v. EPA ‘composition’ of an emission, not restrictions on 122 Id. (‘‘[s]pecific terms prevail over the general in the operation or on the content of fuels.’’ David P. 123 80 FR 64782 n.602. same or another statute which might otherwise be Currie, Federal Air-Quality Standards and Their 124 83 FR 44752. controlling.’’ (citation and quotation marks Implementation, 365 American Bar Foundation 125 Id. omitted)). Research Journal, 376 n.58 (1976).

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Congress ‘‘intended to forbid reliance on Congress spoke directly in Chevron step the separate and distinct legal intermittent control strategies, such as one terms to the question of whether the interpretations and record-based temporary use of low-sulfur fuels or BSER may contain measures other than findings underpinning the ACE rule (see reductions in plant output ....’’133 those that can be put into operation at Section III) or the new implementing Because standards of performance a particular source: It may not. The regulations (see Section IV). The EPA cannot be based on intermittent control approach to BSER in the CPP is thus today repeals the CPP as a separate strategies, basing BSER on reduced unlawful and the CPP must be repealed. action, distinct from its promulgation of utilization is statutorily precluded for the ACE rule and of revisions to its C. Independence of the Repeal of the purposes of CAA section 111. regulations implementing section Clean Power Plan Finally, basing the BSER on reduced 111(d). The EPA would repeal the CPP utilization contravenes the plain Although this action appears in the today even if it were not yet prepared meaning of a ‘‘standard of same document as the ACE rule and the to promulgate these other regulations, or performance.’’ As the Supreme Court revisions to the emission guidelines indeed if it knew that those other held most recently in Weyerhaeuser v. implementing regulations, the repeal of regulations would not survive judicial FWS, 139 S. Ct. 361 (2018),134 and the CPP is a distinct final agency action review. previously in Solid Waste Agency of that is not contingent upon the III. The Affordable Clean Energy Rule Northern Cook County, courts must give promulgation of ACE or the new statutory terms meaning, even where implementing regulations. As explained A. The Affordable Clean Energy Rule they are part of a larger statutorily above, Congress spoke directly to the Background defined phrase.135 In the phrase question of whether CAA section 111 1. Regulatory Background ‘‘standard of performance,’’ the term authorizes the EPA to issue regulations ‘‘performance’’ is defined as ‘‘[t]he pursuant to CAA section 111(d) that call In December 2017, the EPA published accomplishment, execution, carrying for the establishment of standards of an Advanced Notice of Proposed Rule out, . . . [or] doing of any action or performance based on the types of Making (ANPRM) to solicit comment on work,’’ 136 and thus refers to the source’s measures that comprised the second and what the Agency should include in CAA manufacturing or production of product. third building blocks of the CPP’s BSER section 111(d) emission guidelines, Reduced utilization does not involve permits the Agency’s to consider including soliciting comment on the improvements to a source’s emissions generation-shifting as a potential system respective roles of the states and the during ‘‘performance;’’ instead it calls of emission reduction in developing EPA; what systems of emission for non-performance—the cessation or emission guidelines. The answer to that reduction might be available and limitation of manufacturing or question is no. appropriate for reducing GHG emissions production —of a source. Accordingly, The CPP described itself as a from existing coal-fired EGUs; and reduced utilization cannot form the ‘‘significant step forward in reducing potential flexibilities that could be basis of a ‘‘standard of performance’’ [GHG] emissions in the U.S.’’ and relied afforded under the NSR program to under CAA section 111. ‘‘in large part on already clearly improve the implementation of a future The definition of ‘‘standard of emerging growth in clean energy rule.137 The EPA received more than performance,’’ and the scope of the innovation, development and 270,000 comments on the ANPRM. ‘‘best system of emission reduction’’ deployment . . . .’’ 80 FR 64663. Informed by the ANPRM, the EPA contained within, confers considerable Market-based forces have already led to then published the ACE proposal, discretion on the EPA to interpret the significant generation shifting in the which consisted of three distinct statute and make reasonable policy power sector. However, the fact that actions: (1) Emission guidelines for GHG choices pursuant to Chevron step two as those market forces have had that result emissions from existing coal-fired EGUs, to what is the best system to reduce does not confer authority on the EPA based on application of HRI measures as emissions of a particular pollutant from beyond what Congress conferred in the the BSER; (2) new emission guideline a particular type of source. However, by CAA. implementation regulations; and (3) The EPA does not deny that, if it were making clear that the ‘‘application’’ of revisions to the NSR program to validly within the Agency’s authority the BSER must be to the source, facilitate the implementation of under the statute, regulations that can efficiency projects at EGUs.138 only be complied with through 133 David P. Currie, Direct Federal Regulation of In this final action, the EPA has Stationary Sources Under the Clean Air Act, 128 U. widespread implementation of determined that the BSER for CO2 Pa. L. Rev. 1389, 1431 (1980) (emphasis added). generation shifting might be a workable emissions from existing coal-fired EGUs Professor Curie also suggests that ‘‘the requirement policy for achieving sector-wide carbon- is HRI, in the form of a specific set of of continuous controls . . . may even have been intensity reduction goals. But what is implicit in the original section 111.’’ Id. technologies and operating and 134 139 S.Ct. at 368–69 (rejecting environmental not legal cannot be workable. The CPP’s maintenance practices that can be group’s contention that statutory definition of reliance on generation shifting as the applied at and to certain existing coal- ‘‘critical habitat’’ is complete and does not require basis of the BSER is simply not within fired EGUs, which is consistent with the independent inquiry into meaning of the term the grant of statutory authority to the legal interpretation adopted in the ‘‘habitat,’’ which the statute left undefined). Agency. The text of CAA section 111 is 135 531 U.S. at 172 (requiring that the word repeal of the CPP (see above section II). ‘‘navigable’’ in the Clean Water Act’s statutorily clear, leaving no interpretive room on Also, in this action, the EPA has defined term ‘‘navigable waters’’ be given ‘‘effect’’). which the EPA could seek deference for provided information for state plan 136 The Oxford English Dictionary (2d ed. 1989) the CPP’s grid-wide management development. The state plan (1. The carrying out of a command, duty, purpose, approach. Accordingly, EPA is obliged development discussion is consistent promise, etc.; execution, discharge, fulfilment. 2. a. The accomplishment, execution, carrying out, to repeal the CPP to avoid acting with the new implementing regulations working out of anything ordered or undertaken; the unlawfully. for CAA section 111(d) emission doing of any action or work; working, action Because the EPA exceeded its guidelines discussed separately in (personal or mechanical’’) and American Heritage statutory authority when it promulgated section IV of this preamble. Dictionary of the English Language (2d ed. 1969) (‘‘1. The act of performing, or the state of being the CPP, the EPA’s repeal of that rule performed.’’ [perform 1. To begin and carry through will remain valid even if a future 137 See 82 FR 61507 (December 28, 2017). to completion]). reviewing court were to find fault with 138 See 83 FR 44746 (August 31, 2018).

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As noted above, the EPA also for applicability of CAA section or had commenced construction on or proposed revisions to the NSR program 111(d).140 before January 8, 2014; 144 (3) serves a in parallel with the ACE rule and the The EPA explained in the CAA generator capable of selling greater than new implementing regulations. The EPA section 111(b) rule (80 FR 64529) that 25 megawatts (MW) to a utility power is not finalizing NSR revisions at this ‘‘section 111(b)(1)(A) requires the distribution system; and (4) has a base time; instead, the EPA intends to take Administrator to establish a list of load rating greater than 260 gigajoules final action on the proposed revisions at source categories to be regulated under per hour (GJ/h) (250 million British a later date in a separate notification of section 111. A category of sources is to thermal units per hour (MMBtu/h)) heat final action. be included on the list ‘if in [the input of coal fuel (either alone or in Administrator’s] judgment it causes, or combination with any other fuel). 2. Public Comment and Hearing on the contributes significantly to, air pollution Consistent with the new implementing ACE Proposal which may reasonably be anticipated to regulations, the term ‘‘designated endanger public health and welfare.’ ’’ facility’’ is used throughout this The Administrator signed the ACE Then, for the source categories listed preamble to refer to the sources affected proposal on August 21, 2018, and, on under CAA section 111(b)(1)(A), the by these emission guidelines.145 For this the same day, the EPA made this Administrator promulgates, under CAA action, consistent with prior CAA version available to the public at https:// section 111(b)(1)(B), ‘‘standards of section 111 rulemakings concerning www.epa.gov/stationary-sources-air- performance for new sources within EGUs, the term ‘‘designated facility’’ pollution/proposal-affordable-clean- such category.’’ The EPA further took refers to a single EGU that is affected by energy-ace-rule. The 60-day public the position that, because EGUs had these emission guidelines. comment period on the proposal began previously been listed, it was The EPA’s applicability criteria for on August 31, 2018, the day of unnecessary to make an additional ACE differ from those in the CPP publication in the Federal Register. The finding as a prerequisite for regulating because the EPA’s determination of the EPA held a public hearing on October CO2. The Agency expressed the view BSER is only for coal-fired electric 1, 2018, in Chicago, Illinois, and that, under CAA section 111(b)(1)(A), utility steam generating units. In the extended the public comment period findings are category-specific and not ACE proposal, the EPA did not identify until October 31, 2018, to allow for 30 pollutant-specific, so a new finding is a BSER for IGCC units, oil- or natural days of public comment following the not needed with regard to a new gas-fired utility boilers, or fossil fuel- public hearing. The EPA received nearly pollutant. The Agency further asserted fired stationary combustion turbines 500,000 comments on the ACE proposal. that, even if it were required to make a and, thus, such units are not designated B. Legal Authority To Regulate EGUs pollutant-specific finding, given the facilities for purposes of this action. In large amount of CO2 emitted from this the ACE proposal (and previously in the In the CPP, the EPA stated that the source category (the largest single ANPRM), the EPA solicited information Agency’s then-concurrent promulgation stationary source category of emissions on the cost and performance of of standards of performance under CAA of CO2 by far) that EGUs would easily technologies that may be considered as section 111(b) regulating CO2 emissions meet the standard for making such a the BSER for fossil fuel-fired stationary from new, modified, and reconstructed listing. The Agency further took the combustion turbines and other fossil- EGUs triggered the need to regulate position that, given the large amount of fuel fired EGUs. The EPA currently does existing sources under CAA section emissions from the source category, it not have adequate information to 111(d).139 In ACE, the EPA is not re- was not necessary in that rule ‘‘for the determine a BSER for these EGUs and, opening any issues related to this EPA to decide whether it must identify if appropriate, the EPA will address conclusion, but for the convenience of a specific threshold for the amount of GHG emissions from these EGUs in a stakeholders and the public, the EPA emissions from a source category that future rulemaking. summarizes the explanation provided in constitutes a significant A coal-fired EGU for purposes of this the CPP here. contribution.’’ 141 rulemaking (and consistent with the That CAA section 111(b) rulemaking definition of such units in the Mercury CAA section 111(d)(1) requires the remains in effect, although the EPA has Agency to promulgate regulations under and Air Toxics Standards (MATS) (77 proposed to revise it.142 That rule which the states must submit state plans FR 9304)) is an electric utility steam continues to provide the requisite regulating ‘‘any existing source’’ of generating unit that burns coal for more predicate for applicability of CAA certain pollutants ‘‘to which a standard than 10.0 percent of the average annual section 111(d). of performance would apply if such heat input during the three previous existing source were a new source.’’ C. Designated Facilities for the calendar years. Further, for purposes of Under CAA section 111(a)(2) and 40 Affordable Clean Energy Rule this rulemaking, the following EGUs CFR 60.15(a), a ‘‘new source’’ is defined will be excluded from a state’s plan: (1) The EPA is finalizing that a Those units subject to 40 CFR part 60, as any stationary source, the 143 designated facility subject to this subpart TTTT as a result of commencing construction, modification, or regulation is any coal-fired electric reconstruction of which is commenced utility steam generating unit that: (1) Is 144 Under CAA section 111, the determination of after the publication of proposed not an integrated gasification combined whether a source is a new source or an existing regulations prescribing a standard of cycle (IGCC) unit (i.e., utility boilers, source (and thus potentially a designated facility) performance under CAA section 111(b) but not IGCC units); (2) was in operation is based on the date that the EPA proposes to applicable to such source. In the CPP, establish standards of performance for new sources. January 8, 2014, is the date the proposed GHG the EPA noted that, at that time, the 140 Id. standards of performance for new fossil fuel-fired Agency was concurrently finalizing a 141 See 80 FR 64531. EGUs were published in the Federal Register (79 rulemaking under CAA section 111(b) 142 See 83 FR 65424. FR 1430). 143 145 for CO2 emissions from new sources, The term ‘‘designated facility’’ means ‘‘any The EPA recognizes, however, that the word which provided the requisite predicate existing facility which emits a designated pollutant ‘‘facility’’ is often understood colloquially to refer and which would be subject to a standard of to a single power plant, which may have one or performance for that pollutant if the existing facility more EGUs co-located within the plant’s 139 See 80 FR 64715. were an affected facility.’’ See 40 CFR 60.21a(b). boundaries.

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a qualifying modification or form of the standard, consistent with the factors of ‘‘cost . . . non-air quality reconstruction; (2) steam generating other EPA regulations addressing GHGs, health and environmental impact and units subject to a federally enforceable the air pollutant regulated in this rule is energy requirements.’’ 152 Because CAA permit limiting net-electric sales to one- GHGs.148 section 111 does not set forth the weight third or less of their potential electric that should be assigned to each of these E. Determination of the Best System of output or 219,000 megawatt-hour factors, courts have granted the Agency Emission Reduction (MWh) or less on an annual basis; (3) a a great degree of discretion in balancing stationary combustion turbine that 1. Guiding Principles in Determining them.153 meets the definition of a simple cycle the BSER The CAA limits ‘‘standards of stationary combustion turbine, a CAA section 111(d)(1) directs the EPA performance’’ to systems that can be combined cycle stationary combustion to promulgate regulations establishing a applied at and to a stationary source turbine, or a combined heat and power procedure similar to that under CAA (i.e., as opposed to off-site measures that combustion turbine; (4) an IGCC unit; section 110,149 under which states are implemented by an owner or (5) non-fossil-fuel units (i.e., units submit state plans that establish operator, such as subsidizing lower- capable of combusting at least 50 ‘‘standards of performance’’ for emitting sources) and that lead to percent non-fossil fuel) that have emissions of certain air pollutants from continuous emission reductions (i.e., are historically limited the use of fossil existing sources which, if they were not intermittent control techniques). fuels to 10 percent or less of the annual new sources, would be subject to new Such systems include add-on controls capacity factor or are subject to a source standards under CAA section and lower-emitting processes/practices/ federally enforceable permit limiting 111(b), and that provide for the designs that can be applied to a fossil fuel use to 10 percent or less of implementation and enforcement of designated facility, i.e., a building, the annual capacity factor; (6) units that structure, facility, or installation those standards of performance. Because 154 serve a generator along with other steam CAA section 111(a)(1) defines ‘‘standard regulated under CAA section 111. As generating unit(s) where the effective of performance’’ for purposes of all of discussed in section II of this preamble, generation capacity (determined based section 111, and because federal this is the only permissible on a prorated output of the base load standards for new sources established interpretation of the scope of the EPA’s rating of each steam generating unit) is under section 111(b) and standards for authority under CAA section 111. But 25 MW or less; (7) a municipal waste existing sources established by a state this clear outer bound on the EPA’s combustor unit subject to 40 CFR part plan under section 111(d) are both authority leaves the Agency 60, subpart Eb; (8) commercial or ‘‘standards of performance,’’ it is the considerable room for interpretation and industrial solid waste incineration units EPA’s responsibility to determine the policy choice within that scope in that are subject to 40 CFR part 60, BSER for designated facilities for determining the BSER that has been subpart CCCC; or (9) a steam generating standards developed under both CAA adequately demonstrated to address a unit that fires more than 50-percent section 111(b) for new sources and particular source category’s emission of non-fossil fuels. section 111(d) for existing sources.150 In a given pollutant. Case law under CAA section 111(b) explains that ‘‘[a]n D. Regulated Pollutant making this determination, the EPA identifies all ‘‘adequately adequately demonstrated system is one The air pollutant regulated in this demonstrated’’ ‘‘system[s] of emission which has been shown to be reasonably final action is GHGs. However, the reduction’’ for a particular source reliable, reasonably efficient, and which standards in this rule are expressed in category and then evaluates those can reasonably be expected to serve the the form of limits solely on emissions of systems to determine which is the interests of pollution control without becoming exorbitantly costly in an CO2, and not the other constituent gases ‘‘best,’’ 151 while ‘‘taking into account’’ of the air pollutant GHGs.146 The EPA economic or environmental way.’’ 155 is not establishing a limit on aggregate 148 See, e.g., 79 FR 34960. While some of these cases suggest that GHGs or separate emission limits for 149 CAA section 110 governs state implementation ‘‘[t]he Administrator may make a other GHGs (such as methane (CH4) or plans, or SIPs, which states develop and submit for projection based on existing nitrous oxide (N O)) as other GHGs EPA approval and which are used to ensure technology,’’ 156 the D.C. Circuit has also 2 attainment and maintenance of the National represent significantly less than one Ambient Air Quality Standards (NAAQS) for percent of total estimated GHG criteria pollutants. BSER determination). Nevertheless, CAA section 111 does not require the ‘‘greatest degree of 150 See also 40 CFR 60.22a. However, while the emissions (as CO2 equivalent) from emission control’’ or ‘‘mandate that the EPA set BSER underlying both new- and existing-source fossil fuel-fired electric power standards at the maximum degree of pollution performance standards is determined by the EPA, 147 control technologically achievable.’’ Sierra Club, generating units. Notwithstanding the the performance standards for new sources are 657 F.2d at 330. directly established by the EPA under section 152 146 In the 2009 Endangerment Finding for mobile 111(b), whereas states establish performance The EPA may consider energy requirements sources, the EPA defined the relevant ‘‘air standards (applying the BSER) for existing sources on both a source-specific basis and a sector-wide, pollution’’ as the atmospheric mix of six long-lived in their jurisdiction in their state plans under region-wide or nationwide basis. Considered on a and directly emitted greenhouse gases: Carbon section 111(d), and Congress has expressly required source-specific basis, ‘‘energy requirements’’ entail, for example, the impact, if any, of the system of dioxide (CO2), methane (CH4), nitrous oxide (N2O), that EPA permit states, in establishing performance hydrofluorocarbons (HFCs), perfluorocarbons standards for existing sources, to take into account emission reduction on the source’s own energy needs. As discussed in this document, a (PFCs), and sulfur hexafluoride (SF6). See 74 FR the remaining useful life of the source and other 66497. Additionally, note that the new CAA section source-specific factors. See 42 U.S.C. 7411(d)(1). consideration of ‘‘energy requirements’’ informs the EPA’s judgment that repowering and refueling coal- 111(d) implementing regulations at 40 CFR 151 The D.C. Circuit recognizes that the EPA’s fired facilities to be fueled by natural gas is not 60.22a(b)(1) do not change the requirement of the evaluation of the ‘‘best’’ system must also include appropriate for consideration as BSER here. previous implementing regulations, 40 CFR ‘‘the amount of air pollution as a relevant factor to 153 60.22(b)(1) that emission guidelines provide be weighed . . . .’’ Sierra Club v. Costle, 657 F.2d Lignite Energy, 198 F.3d 930, 933 (D.C. Cir. information concerning known or suspected 298, 326 (D.C. Cir. 1981). Additionally, a system 1999). endangerment of public health or welfare caused, cannot be ‘‘best’’ if it does more harm than good 154 See section 111(a)(3) for definition of or contributed to, by the designated pollutant. For due to cross-media environmental impacts. See ‘‘stationary source.’’ this emission guideline, that information is Portland Cement, 486 F. 2d at 384; Sierra Club, 657 155 Essex Chemical Corp., 486 F.2d 375, 433–34 contained in the 2009 Endangerment Finding. F.2d at 331; see also Essex Chemical Corp., 486 (D.C. Cir. 1973). 147 EPA Greenhouse Gas Reporting Program; F.2d 427, 439 (D.C. Cir. 1973) (remanding standard 156 Portland Cement Ass’n v. Ruckelshaus, 486 www.epa.gov/ghgreporting/. to consider solid waste disposal implications of the F.2d 375, 391 (D.C. Cir. 1973).

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noted that ‘‘there is inherent tension’’ allow states to take into account the with a lower heat rate consumes less between considering a particular control ‘‘remaining useful life’’ of an existing fuel per kWh of electricity generated technique as both ‘‘an emerging source, ‘‘among other factors,’’ when and, as a result, emits lower amounts of technology and an adequately applying a standard of performance to CO2—and other air pollutants—per kWh demonstrated technology.’’ 157 any particular source.164 Accordingly, generated (as compared to a less Nevertheless, the EPA appears to ‘‘have the Agency’s identification of the BSER efficient unit with a higher heat rate). authority to hold the industry to a is based on what is ‘‘adequately Heat rate data from existing coal-fired standard of improved design and demonstrated’’ and broadly achievable EGUs indicate that there is potential for operational advances, so long as there is for a source category across the country, improvement across the source category. substantial evidence that such while each state—which will be more Heat rate improvement measures can improvements are feasible.’’ 158 The familiar with the operational and design be applied—and some measures have essential question, therefore, is whether characteristics of actually existing already been applied—to all existing the BSER is ‘‘available.’’ 159 sources within their borders—is EGUs (supporting the Agency’s In considering the availability of responsible for developing source- determination that HRI measures are the different systems of emission reduction, specific standards reflecting application BSER). However, the U.S. fleet of the ‘‘EPA must examine the effects of of the BSER.165 Indeed, Congress has existing coal-fired EGUs is a diverse technology on the grand scale,’’ because expressly provided that the EPA must group of units with unique individual CAA section 111 standards are, after all, permit states to take into consideration characteristics that are spread across the ‘‘a national standard with long-term a source’s remaining useful life, among country.167 As a result, heat rates of effects.’’ 160 To that end, the Agency other factors, when applying a standard existing coal-fired EGUs in the U.S. vary must ‘‘consider the representativeness of performance to a particular source.166 substantially. Thus, even though the for the industry as a whole of the tested In the ACE proposal, the EPA variation in heat rates among EGUs with plants on which it relies....’’161 A provided a discussion of the identified similar design characteristics, as well as CAA section 111 standard, therefore, systems of emission reduction and year-to-year variation in heat rate at ‘‘cannot be based on a ‘crystal ball’ explained why certain systems were individual EGUs, indicate that there is 162 inquiry.’’ eliminated from consideration at a potential for HRI that can improve CO2 Whereas the EPA establishes preliminary state or were otherwise emission performance across the performance standards for new sources determined not to be the ‘‘best system.’’ existing coal-fired EGU fleet, this under CAA section 111(b), section The EPA received public comments that potential may vary considerably at the 111(d) provides that states are primarily challenged or refuted the Agency’s unit level—including because particular responsible for regulating existing evaluation of these systems of emission units may not be able to employ certain sources. This bifurcated approach reduction. A discussion of those HRI measures, or may have already dovetails with testimony offered during reduction measures and a summary of done so. Accordingly, the EPA development of the CAA Amendments significant public comments are identified several available technologies of 1970 (which established the section provided below. and equipment upgrades, as well as best 111 program)—specifically, Secretary The EPA proposed that ‘‘heat rate operating and maintenance practices, Finch explained that ‘‘existing improvement’’ (HRI, which may also be that EGU owners or operators may apply stationary sources of air pollution are so referred to as ‘‘efficiency improvement’’) to improve an individual EGU’s heat numerous and diverse that the problems is the BSER for existing coal-fired EGUs. rate. The EPA referred to these HRI they pose can most efficiently be In this action, after consideration of technologies and techniques as attacked by state and local agencies.’’ 163 public comments, the EPA is finalizing ‘‘candidate technologies’’ and solicited Indeed, Congress eventually made its proposed determination that HRI is comment on their technical feasibility, explicit the requirement that the EPA the BSER. The basis for the final applicability, performance, and cost. determination and a summary of The EPA received numerous public 157 Sierra Club v. Costle, 657 F.2d 298, 341 n.157 significant public comments received on comments, both supporting and (D.C. Cir.1981); see also NRDC v. Thomas, 805 F.2d the proposed determination are 410, n.30 (D.C. Cir. 1986) (suggesting that ‘‘a opposing, the proposed determination standard cannot both require adequately discussed below. that HRI is the BSER. Many commenters demonstrated technology and also be technology- 2. Heat Rate Improvement Is the BSER supported the proposed concept of a forcing’’). for Existing Coal-Fired EGUs unit-specific, state-led evaluation of HRI 158 Sierra Club, 657 F.2d at 364. It is not clear potential as a means of establishing a whether these cases would have applied the same a. Background and BSER Determination technology-forcing philosophy to the regulation of unit-specific standard of performance. existing sources, as at least one case noted that Heat rate is a measure of efficiency The commenters argued that it is not section 111 ‘‘looks toward what may fairly be that is commonly used in the power possible to adopt uniform, nationally projected for the regulated future, rather than the sector. The heat rate is the amount of applicable standards of performance state of the art at present, since it is addressed to standards for new plants—old stationary source energy or fuel heat input (typically based on implementation of particular pollution being controlled through other regulatory measured in British thermal units, Btu) HRI technologies because each authority.’’ Portland Cement, 486 F.2d at 391 required to generate a unit of electricity individual unit is subject to a unique (emphasis added). (typically measured in kilowatt-hours, combination of factors that can affect 159 See Portland Cement v. Ruckelshaus, 486 F.2d kWh). The lower an EGU’s heat rate, the the unit’s heat rate and HRI potential, at 391. more efficiently it converts heat input to 160 Id. at 330. many of which are geographically 161 Nat’l Lime Ass’n v. EPA, 627 F.2d 416, 432– electrical output. As a result, an EGU driven and outside the control of a 33 (D.C. Cir. 1980). 162 Essex Chemical Corp., 486 F.2d at 391. 164 42 U.S.C. 7411(d)(1). 167 For example, the current fleet of existing fossil 163 Testimony of Robert Finch, Secretary of 165 This approach is analogous to the NAAQS fuel-fired EGUs is quite diverse in terms of size, age, Health, Education, and Welfare (which regulated air program: Where ‘‘[e]ven with air quality standards fuel type, operation (e.g., baseload, cycling), boiler pollution prior to the establishment of the EPA) in being set nationally . . . the steps needed to deal type, etc. Moreover, geography and elevation, unit support of S. 3466/H.R. 15848, before the House with existing stationary sources would necessarily size, coal type, pollution controls, cooling system, Subcommittee on Public Health and Welfare, H. vary from one State to another and, within States, firing method, and utilization rate are just a few of Hearing (May 16, 1970), 1970 CAA Legis. Hist. at from one area to another . . . .’’ Id. the parameters that can impact the overall 1369. 166 42 U.S.C. 7411(d)(1). efficiency and performance of individual units.

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source. The EPA agrees with these limited applicability and many provide technologies’’ in establishing unit- commenters. As previously mentioned, only negligible HRI. The EPA stated in specific standards of performance. Some the U.S. fleet of existing coal-fired EGUs the proposal that it believed that commenters suggested that the EPA is diverse in terms of size, vintage, fuel requiring a state in developing its plan establish a process whereby HRI usage, design, geographic location, etc. to evaluate the applicability to each of solutions can be added to the list of The HRI potential for each unit will be its sources of the entire list of potential ‘‘candidate technologies.’’ influenced by source-specific factors HRI options—including those with Commenters also stated that some of such as the EGU’s past and projected limited applicability and with negligible the equipment upgrades and operating utilization rate, maintenance history, benefits—would be overly burdensome practices proposed as candidate and remaining useful life (among other to the states. Therefore, the EPA technologies have the potential to factors). Therefore, standards of identified and proposed a list of the improve an EGU’s net heat rate by performance must be established from a ‘‘most impactful’’ HRI technologies, reducing auxiliary load but would have unit-level evaluation of the application equipment upgrades, and best operating no impact on the unit’s gross heat of the BSER and consideration of other and maintenance practices that form the rate.169 Comments regarding gross factors at the unit level. States are in the list of ‘‘candidate technologies’’ versus net heat rate, and gross- versus best position to make those evaluations constituting the BSER. The candidate net-based standards of performance, are and to consider of other unit-specific technologies of the BSER are listed in discussed in more detail below in factors, and indeed CAA section Table 1 below. Those technologies, section III.F.1.c of this preamble. 111(d)(1) directs EPA to permit states to equipment upgrades, and best operating take such factors into consideration as and maintenance practices were deemed The EPA considered the public they develop plans to establish to be ‘‘most impactful’’ because they can comments on the BSER technologies performance standards for existing be applied broadly and are expected to and believes that the proposed list still sources within their jurisdiction. provide significant HRI without represents the most broadly applicable Other commenters opposed the limitations due to geography, fuel type, and impactful collection of HRI proposed use of unit-specific HRI plans etc. The EPA solicited comment on each measures. Therefore, the EPA is, in this because the commenters believe that of the proposed candidate technologies action, finalizing the proposed this interpretation is inconsistent with and on whether any additional technologies, equipment upgrades, and the legislative history and that this technologies should be added to the list, best operating and maintenance approach does not enable significant and on whether there is additional practices provided in Table 1 of the 170 emissions reductions. Some information that the EPA should be proposal as the final list of commenters said that defining BSER in aware of and consider in determining ‘‘candidate technologies’’ whose terms of operational efficiency (heat the BSER and establishing the candidate applicability to each designated facility rate) is not consistent with the technologies for HRI measures. within their boundaries states must understanding reflected in the EPA’s The EPA received numerous public evaluate in establishing a standard of historic practice in all previous CAA comments on the list of candidate performance for that source in their section 111(d) rules, where the BSER technologies. Some commenters stated state plans under CAA section 111(d). was determined based on a specific that there are additional available HRI The technologies and operating and emission reduction technology. The technologies that should be added to the maintenance practices listed and EPA disagrees with the contention. The list of candidate technologies, while described below are generally available EPA proposed that HRI through the many other commenters agreed that the and appropriate for all types of EGUs. application of a specific set of emission proposed list of ‘‘candidate However, some existing EGUs will have reduction technologies (discussed in technologies’’ is reasonable and should already implemented some of the listed more detail below) and operational be considered the core group for states HRI technologies, equipment upgrades, practices is the BSER. That approach is to evaluate in establishing standards of and operating and maintenances consistent with the direction given in performance. Commenters agreed that practices. There will also be unit- the statute. It is also an approach that the proposed list of ‘‘candidate specific physical or cost considerations recognizes the challenges of applying a technologies’’ focuses the states’ that will limit or prevent full single specific emission reduction standard-setting process on those HRI implementation of the listed HRI technology within such a diverse measures with the greatest ability to technologies and equipment upgrades. population of designated facilities. impact CO2 emissions. Commenters States will consider these and other After consideration of public further stated that the EPA’s proposed factors when establishing unit-level comment, the EPA affirms its candidate technology list will limit the standards of performance. The final list determination that, as proposed, HRI is burden on states by eliminating the of ‘‘candidate technologies’’—with the the BSER for existing coal-fired EGUs. need to consider measures that would range of expected percent HRI—is almost certainly be rejected due to provided below in Table 1. b. The List of Candidate Technologies negligible emission reduction benefits, While a large number of HRI measures disproportionate costs, or availability. 169 The gross heat rate is the fuel heat input have been identified in a variety of However, commenters also noted that required to generate a unit of electricity (typically studies conducted by government there may be additional HRI presented in Btu/kWh-gross). The net heat rate is agencies and outside groups,168 some of opportunities available to a significant the fuel heat input required to generate a unit of electricity minus the electricity that is used to those identified technologies have number of designated facilities and that power facility auxiliary equipment (typically states should not be required to limit presented in Btu/kWh-net). 168 See Table 3 in ANPRM, 82 FR 61515. their evaluations to just the ‘‘candidate 170 See 83 FR 44757.

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TABLE 1—SUMMARY OF MOST IMPACTFUL HRI MEASURES AND RANGE OF THEIR HRI POTENTIAL (%) BY EGU SIZE

<200 MW 200–500 MW >500 MW HRI Measure Min Max Min Max Min Max

Neural Network/Intelligent Sootblowers ... 0.5 1.4 0.3 1.0 0.3 0.9 Boiler Feed Pumps ...... 0.2 0.5 0.2 0.5 0.2 0.5 Air Heater & Duct Leakage Control ...... 0.1 0.4 0.1 0.4 0.1 0.4 Variable Frequency Drives ...... 0.2 0.9 0.2 1.0 0.2 1.0 Blade Path Upgrade (Steam Turbine) ..... 0.9 2.7 1.0 2.9 1.0 2.9 Redesign/Replace Economizer ...... 0.5 0.9 0.5 1.0 0.5 1.0

Improved Operating and Maintenance (O&M) Practices ...... Can range from 0 to >2.0% depending on the unit’s historical O&M practices.

Two of the technologies shown in the EPA is retaining these two candidate requirements of this regulation. Table 1—‘‘Blade Path Upgrade (Steam technologies as part of the final BSER, Additionally, several commenters Turbine)’’ and ‘‘Redesign/Replace because it still expects these contended that under CAA section Economizer’’—are candidate technologies to be generally applicable 111(a)(1), the EPA is legally obligated to technologies that are expected to offer across the fleet of existing EGUs, and identify ‘‘the degree of emission some of the largest improvements in because the costs of the technologies limitation achievable through the unit-level heat rate. However, based on themselves are generally economical application of the [BSER]’’ (i.e., a level public comments from the ANPRM and and reasonable. of stringency) because such degree of the ACE proposal, those also are HRI emission limitation is inextricably c. Level of Stringency Associated With technologies that have the most linked with the determination of the the BSER potential to trigger NSR requirements. BSER, which is the EPA’s statutory role Industrial stakeholders and commenters As discussed in section III.B above, and responsibility. Upon consideration have indicated, if such HRI trigger NSR, the EPA has the authority and of these comments, especially the the resulting requirements for analysis, responsibility to determine the BSER. widespread request for more guidance permitting, and capital investments will CAA section 111(d)(1), meanwhile, from the EPA on developing appropriate greatly increase the cost of clearly assigns states the role of standards of performance, the EPA implementing those HRI technologies developing a plan that establishes agrees that it has a responsibility under and, in the absence of NSR reforms, standards of performance for designated the CAA to identify the degree of states will be more likely to determine facilities (with EPA’s authority to emission reduction that it determines to that those technologies are not cost- promulgate a federal plan serving as a be achievable through the application of effective when analyzing ‘‘other factors’’ backstop in the event that a state fails the BSER. in determining a standard of to develop a satisfactory plan 172). Based While the CAA provides that the performance for an individual facility. on these statutory divisions of roles and responsibility to establish standards of For the ACE proposal, the EPA responsibilities, the EPA proposed to performance is a state’s responsibility, reflected this in assumptions made in determine the BSER as HRI achievable the EPA is identifying the degree of the power sector modeling, using the through implementation of certain emission limitation achievable through Integrated Planning Model (IPM), to technologies, equipment upgrades, and the application of the BSER (i.e., the assess potential costs and benefits of the improved O&M practices. The EPA also level of stringency) associated with the proposed rule. In that modeling, the declined to propose a standard of candidate technologies. By providing EPA assumed two different levels of performance that presumptively reflects the level of emissions reductions potential HRI (in percentage terms)—a application of the BSER because the achievable using the candidate lower expected HRI without NSR reform establishment of standards of technologies the EPA is fulfilling its and a higher expected HRI with NSR performance for existing sources is the responsibility as part of the BSER reform.171 states’ role.173 While declining to determination. In this instance, the EPA As mentioned earlier in this provide a presumptive standard, the has identified the degree of emission preamble, the EPA is not taking final EPA also proposed to provide limitation achievable through action on the proposed NSR reforms in information on the degree of emission application of the BSER by providing this final rulemaking action; the EPA limitation achievable through ranges of expected reductions associated intends to take final action on that application of the BSER by providing a with each of the technologies. These proposal in a separate final action at a range of reductions and costs associated ranges are provided in Table 1, clearly later date. Without finalization of NSR with each of the candidate technologies presenting the percentage improvement reforms, the EPA anticipates that states identified as part of the BSER.174 ranges that can be expected when each in some instances may determine, when The EPA received numerous candidate technology comprising the considering other factors, that the comments from states and industry BSER is applied to a designated facility. candidate technologies, ‘‘Blade Path requesting that the EPA provide a Defining the ranges of HRI as the degree Upgrade (Steam Turbine)’’ and presumptive standard, or at minimum, of emission limitation achievable ‘‘Redesign/Replace Economizer,’’ are additional guidance and clarity on how through application of the BSER is less appropriate for application to a states could derive a standard of consistent with the EPA’s position at particular source or sources than the performance that meets the proposal, where EPA noted that ‘‘while EPA anticipated would be when it the HRI potential range is provided as proposed the ACE Rule. Nevertheless, 172 See section 111(d)(2). guidance for the states, the actual HRI 173 See 83 FR 44764. performance for each of the candidate 171 See 80 FR 44783. 174 See 83 FR 44757, Table 1. technologies will be unit-specific and

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will depend upon a range of unit- technology is to be used by states in the The efficiency improvements from specific factors. The states will use the process of establishing a standard of installation of ISB are often greatest for information provided by the EPA as performance, and in this process, states EGUs firing subbituminous coal and guidance but will be expected to may also consider source-specific lignite due to more significant and rapid conduct unit-specific evaluations of HRI factors such as variability that may fouling at those units as compared to potential, technical feasibility, and result in a different level of EGUs firing bituminous coal. applicability for each of the BSER stringency.176 Commenters recommended that the candidate technologies.’’ 175 For EPA disaggregate its analysis of neural purposes of the final ACE rule, states d. Detail on the HRI Technologies & Techniques networks and ISB because these will utilize the ranges of HRI the EPA technologies do not have to be deployed has provided in developing standards of (1) Neural Network/Intelligent together and implementing one without performance but may ultimately Sootblower the other may be appropriate in many establish standards of performance for Neural networks. Computer models, cases. The EPA agrees that the one or more existing sources within known as neural networks, can be used technologies do not have to be their jurisdiction that reflect a value of to simulate the performance of the implemented together and states must HRI that falls outside of these ranges. power plant at various operating loads. evaluate the applicability and See section III.F.1.a of this preamble. Typically, the neural network system effectiveness of both technologies. The It is reasonable for the EPA to express technologies were listed together to the ‘‘degree of emission limitation ties into the plant’s distributed control system for data input (process emphasize that they are often achievable through application of the implemented together and that the BSER’’ as a set of ranges of values, monitoring) and process control. The system uses plant specific modeling and resulting HRIs from each are not rather than a single number, that reflects necessarily additive. application of the candidate control modules to optimize the unit’s technologies as a whole. This approach operation and minimize the emissions. (2) Boiler Feed Pumps This model predictive control can be is reasonable in light of the nature of A boiler feed pump (or boiler what the EPA has identified as the particularly effective at improving the plant’s performance and minimizing feedwater pump) is a device used to adequately demonstrated BSER (as well pump feedwater into a boiler. The water as of the structure of section 111 in emissions during periods of rapid load changes—conditions that commenters may be either freshly supplied or general and the interplay between returning condensate produced from section 111(a)(1) and section 111(d) in claimed to be more prevalent now than condensing steam produced by the particular): A suite of candidate was the case 5 to 10 years ago. The boiler. The boiler feed pumps consume technologies that the EPA anticipates neural network can be used to optimize a large fraction of the auxiliary power will be generally applicable to EGUs at combustion conditions, steam used internally within a power plant. the fleet-wide level but not all of which temperatures, and air pollution control For example, boiler feed pumps can may be applicable or warranted at the equipment. require power in excess of 10 MW on a level of a particular facility due to Intelligent Sootblowers. During 500–MW power plant. Therefore, the source-specific factors such as the site- operations at a coal-fired power plant, maintenance on these pumps should be specific operational and maintenance particulate matter (PM) (ash or soot) rigorous to ensure both reliability and history, the design and configuration, builds up on heat transfer surfaces. This the expected operating plans, etc. build-up degrades the performance of high-efficiency operation. Boiler feed Because of the importance for the heat transfer equipment and pumps wear over time and subsequently applicability of the BSER of these negatively affects the efficiency of the operate below the original design source-specific factors, and because the plant. Power plant operators use steam efficiency. The most pragmatic remedy application and installation of the injection ‘‘sootblowers’’ to clean the is to rebuild a boiler feed pump in an candidate technologies will result in heat transfer surfaces by removing the overhaul or upgrade. varying degrees of reductions based on ash build-up. This is often done on a Commenters stated that because application of each of the BSER routine basis or as needed based on upgrading an electric boiler feed pump technologies into the existing monitored operating characteristics. impacts only net heat rate (and not gross infrastructure of the EGU, the EPA has Intelligent sootblowers (ISB) are heat rate), it should be excluded from provided ranges of HRI associated with automated systems that use process the candidate technologies list. The EPA each technology. This accounts for some measurements to monitor the heat disagrees that candidate technologies of the variation that is expected among transfer performance and strategically affecting only the net heat rate should the designated facilities (see section allocate steam to specific areas to be removed from the candidate III.F.1.a.(1) of this preamble for remove ash buildup. technologies list. These technologies discussion of variable emission The cost to implement an ISB system improve the efficiency and reduce performance at and between designated is relatively inexpensive if the necessary emissions from the plant by reducing facilities). While these ranges represent hardware is already installed. The ISB the auxiliary power load, allowing for the degree of emission reduction software/control system is often more of the produced power to be achievable through application of the incorporated into the neural network placed on the grid. As is discussed BSER, a particular designated facility software package mentioned above. As below in section III.F.1.c., the state will may have the potential for more or less such, the HRIs obtained via installation determine whether to establish HRI as a result of the application of the of neural network and ISB systems are standards of performance as gross candidate technology based on source- not necessarily cumulative. output-based standards or as net output- specific characteristics. As further based standards. If states establish gross discussed in section III.F. of this 176 As described later in the preamble in section output-based standards, it will be up to preamble, the level of stringency III.F., the EPA envisions states will develop the states to determine how to account standards of performance for designated facilities in associated with each candidate a two -step process where states first apply the for emission reductions that are BSER and then consider source-specific factors attributable to technologies affecting 175 See 83 FR 44763. such as remaining useful life. only the net output.

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(3) Air Heater and Duct Leakage Control almost all percentages of flow size, and significant cooling The air pre-heater is a device that turndown. requirements. The EPA agrees that VFD Due to current electricity market recovers heat from the flue gas for use HRIs will be less effective for units that conditions, many units no longer in pre-heating the incoming combustion operate consistently at high capacity operate at base-load capacity and, air (and potentially for other uses such factors at base load conditions. therefore, VFDs, also known as variable- as coal drying). Properly operating air However, due to the changing nature of speed drives on fans can greatly pre-heaters play a significant role in the the power sector (increased use of enhance plant performance at off-peak overall efficiency of a coal-fired EGU. natural gas-fired generating sources, loads. Additionally, units with more intermittent renewable generating The air pre-heater may be regenerative oversized fans can benefit from VFD sources, etc.), many coal-fired EGUs are (rotary) or recuperative (tubular or controls. Under these scenarios, VFDs cycling more often and the heat rate of plate). A major difficulty associated can significantly improve the unit heat such units will benefit from installation with the use of regenerative air pre- rate. VFDs as motor controllers offer of VFD technology. In evaluating the heaters is air in-leakage from the many substantial improvements to applicability of the BSER technologies, combustion air side to the flue gas side. electric motor power requirements. The states will consider ‘‘other factors’’ that Air in-leakage affects boiler efficiency drives provide benefits such as soft will include expected utilization rate, due to lost heat recovery and affects the starts, which reduce initial electrical remaining useful life, physical/space axillary load since any in-leakage load, excessive torque, and subsequent limitations, etc. That evaluation of requires additional fan capacity. The equipment wear during startups; ‘‘other factors’’ will identify whether amount of air leaking past the seals provide precise speed control; and implementation of a BSER candidate tends to increase as the unit ages. enable high-efficiency operation of technology is reasonable. The EPA is Improvements to seals on regenerative motors at less than the maximum finalizing a determination that this air pre-heaters have enabled the efficiency point. During load turndown, candidate technology is an element of reduction of air in-leakage. plant auxiliary power could be reduced the BSER because it contributes to The EPA received comments that by 30–60 percent if all large motors in emission reductions and it is broadly claimed the applicability of air pre- a plant were efficiently controlled by applicable at reasonable cost. heater seals is limited, and that low- VFD. With unit loads varying Commenters also stated that VFDs leakage seals are not feasible on certain throughout the year, the benefits of only impact net heat rate, so efficiency units while other commenters agreed using VFDs on large-size equipment, improvements may not be cost-effective. that the HRI estimates for leakage such as FD or ID fans, boiler feedwater As stated earlier, if the states choose to reduction are reasonable, and HRI and condenser circulation water pumps, establish gross output-based standards improvement from 0.25 to 1.0 percent is can have significant impacts. There are of performance, it will be up to the achievable. The EPA agrees that the HRI circumstances in which the HRI has states to determine how to account for estimates for air heater and duct in- been estimated to be much higher than emission reductions attributable to leakage are reasonable. The EPA agrees that shown in Table 1, depending on the improvement to net heat rate. that low-leakage seals are not feasible operation of the unit. Cycling units (5) Blade Path Upgrade (Steam Turbine) for certain units (e.g., those using realize the greatest gains representative recuperative air heaters). However, the of the upper range of HRI, whereas units Upgrades or overhauls of steam EPA is finalizing a determination that which were designed with excess fan turbines offer the greatest opportunity this candidate technology is an element capacity will exhibit the lower range. for HRI on many units. Significant of the BSER because limiting air in- VFD on boiler feed pumps. VFDs can increases in performance can be gained leakage in the air heater and associated also be used on boiler feed water pumps from turbine upgrades when plants duct work can be evaluated on all units as mentioned previously. Generally, if a experience problems such as steam and limiting the amount of air in- unit with an older steam turbine is rated leakages or blade erosion. The typical leakage will improve the efficiency of below 350 MW, the use of motor-driven turbine upgrade depends on the history the unit. boiler feedwater pumps as the main of the turbine itself and its overall performance. The upgrade can entail (4) Variable Frequency Drives (VFDs) drivers may be considered practical from an efficiency standpoint. If a unit myriad improvements, all of which VFD on induced draft (ID) fans. The cycles frequently then operation of the affect the performance and associated increased pressure required to maintain pumps with VFDs will offer the best costs. The availability of advanced proper flue gas flow through results on heat rate reductions, followed design tools, such as computational downstream air pollutant control by fluid couplings. The use of VFDs for fluid dynamics (CFD), coupled with equipment may require additional fan boiler feed pumps is becoming more improved materials of construction and power, which can be achieved by an ID common in the industry for larger units. machining and fabrication capabilities fan upgrade/replacement or an added And with the advancements in low have significantly enhanced the booster fan. Generally, older power pressure steam turbines, a motor-driven efficiency of modern turbines. These plant facilities were designed and built feed pump can improve the thermal improvements in new turbines can also with centrifugal fans. performance of a system up to the 600– be utilized to improve the efficiency of The most precise and energy-efficient MW range, as compared to the older steam turbines whose efficiency method of flue gas flow control is the performance associated with the use of has degraded over time. use of VFD. The VFD controls fan speed turbine drive pumps. Commenters stated that steam turbine electrically by using a static controllable Some commenters stated that VFDs blade path upgrades may not be rectifier (thyristor) to control frequency should be excluded from the candidate achievable for every turbine because of and voltage and, thereby, the fan speed. technologies list because the efficiency the potentially significant variability in The VFD enables very precise and improvements are likely near zero when an individual turbine’s parameters accurate speed control with an almost the EGU operates as a baseload unit. when considering costs. Commenters instantaneous response to control Commenters further stated that VFD further noted that these are large signals. The VFD controller enables installation may not be reasonable investments that can require lengthly highly efficient fan performance at because of their high cost, large physical outages and long lead times.

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Other commenters noted that these the values in Table 1 appear to reflect practice is an element of the BSER steam turbine blade path upgrades have a major economizer redesign which may because it can result in emission been commercially available for over 10 not be possible for many units. The EPA reductions and can be broadly years and that the HRI estimates in agrees that there will likely be site- implemented at reasonable cost. Table 1 appear reasonable. specific factors that must be considered (b) Perform On-Site Appraisals To The EPA agrees that steam turbine to determine whether economizer blade path upgrades are commercially redesign/replacement is a feasible HRI Identify Areas for Improved Heat Rate available and that the HRI estimates in option (as is the case for all the BSER Performance Table 1 appear to be consistent with candidate technologies). Nevertheless, Some large utilities have internal other estimates of HRI achievable from the EPA is finalizing a determination groups that can perform on-site this type of upgrade. As mentioned that economizer upgrades (or evaluations of heat rate performance earlier, based on public comments replacement) are part of the BSER improvement opportunities. Outside responding to the ANPRM and the ACE because the EPA anticipates they will (i.e., third-party) groups can also proposal, this HRI measure has the still be generally available and feasible provide site-specific/unit-specific potential to trigger NSR requirements at a sufficient scale among the evaluations to identify opportunities for (in the absence of NSR program nationwide fleet. As mentioned earlier, HRI. reforms), and the EPA anticipates that, states may take into consideration site- Commenters stated that the benefits of among the candidate technologies specific characteristics (‘‘other factors’’) on-site appraisals are variable, identified as comprising the BSER, when establishing a standard of speculative, and site-specific. states may be relatively more likely to performance for each unit. Commenters stated that no state should determine in light of the resulting determine what opportunities a coal- requirements for analysis, permitting, (7) HRI Techniques—Best Operating and Maintenance Practices fired EGU might find during an on-site and capital investments that this appraisal, and, therefore, that states Many unit operators can achieve candidate technology is not should not be required to evaluate the additional HRI by adopting best O&M economically feasible when evaluating applicability of on-site appraisals when practices. The amount of achievable HRI it in the process of establishing developing their plans and establishing will vary significantly from unit to unit, standards of performance for particular standards of performance for existing ranging from no improvement to existing sources within their sources within their jurisdiction. The potentially more than 2.0 percent jurisdiction. Nevertheless, the EPA is EPA agrees that the benefits of on-site finalizing a determination that steam depending on the unit’s historical O&M appraisals will be variable and site- turbine blade bath upgrades are part of practices. In setting a standard of specific. As with other BSER measures, the BSER because the EPA anticipates performance for a specific unit or it will be up to each state to determine they will still be generally available and subcategory of units, states will evaluate the extent of this requirement. States feasible at a sufficient scale among the the opportunities for HRI from the may require that the owner/operator nationwide fleet. following actions. perform an on-site appraisal to identify (6) Redesign/Replace Economizer (a) Adopt HRI Training for O&M Staff areas for HRI or the state may choose to In steam power plants, economizers EGU operators can obtain HRI by have a third party conduct an on-site are heat exchange devices used to adopting ‘‘awareness training’’ to ensure HRI appraisal. capture waste heat from boiler flue gas that all O&M staff are aware of best (c) Improved Steam Surface which is then used to heat the boiler practices and how those practices affect Condenser—Cleaning feedwater. This use of waste heat the unit’s heat rate. reduces the need to use extracted energy Some commenters agreed that HRI Effective operation of the steam from the system and, therefore, training can improve staff awareness of surface condenser in a power plant can improves the overall efficiency or heat plant efficiency measures, which should significantly improve a unit’s heat rate. rate of the unit. As with most other heat result in improved plant performance. In fact, in many cases ineffective transfer devices, the performance of the Other commenters stated that the operation can pose the most significant economizer will degrade with time and benefits of HRI training are highly hindrance to a plant trying to maintain use, and power plant representatives variable and depend on existing its original design heat rate. Since the contend that economizer replacements equipment and staff. Some commenters primary function of the condenser is to are often delayed or avoided due to stated that the operating staff already condense steam flowing from the last concerns about triggering NSR routinely undergo HRI training and that stage of the steam turbine to liquid form, requirements. In some cases, states should not be required to consider it is most desirable from a economizer replacement projects have these measures in developing their thermodynamic standpoint that this been undertaken concurrently with plans. The EPA agrees that the benefits occurs at the lowest temperature retrofit installation of selective catalytic will be variable from unit to unit reasonably feasible. By lowering the reduction (SCR) systems because the depending upon the unit’s historical condensing temperature, the entrance temperature for the SCR unit O&M practices. If operating staff at a backpressure on the turbine is lowered, must be controlled to a specific range. source already undergo routine HRI which improves turbine performance. Commenters stated that redesigning or training, then the state will note that in Condenser cleaning. A condenser replacing an economizer may be limited the standard-setting process. Just as an degrades primarily due to fouling of the for some units by the need to maintain EGU that has recently installed new or tubes and air in-leakage. Tube fouling appropriate temperatures at a reconstructed boiler feed pumps would leads to reduced heat transfer rates, downstream SCR system for nitrous not be expected to replace those pumps, while air in-leakage directly increases oxides (NOx) control. Commenters also a source that already has an effective the backpressure of the condenser and stated that applicability of this measure HRI training program in place would degrades the quality of the water. will be site-specific because boiler not be expected to implement a new Condenser tube cleaning can be layout and construction varies widely HRI training program. The EPA is performed using either on-line methods between units. Commenters stated that finalizing a determination that this or more rigorous off-line methods.

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Commenters stated that improved this action, the EPA has evaluated applicable for an affected coal-fired EGU steam surface condenser cleaning is a whether the costs of HRI are considered but find that the costs are not reasonable viable O&M option. Commenters stated to be reasonable as a general matter when consideration is given to the that the need for such cleaning can be across the fleet of existing sources. timeframe for the planned retirement of determined by enhanced monitoring of Any efficiency improvement made by the source (i.e., the source’s remaining condenser performance. The EPA agrees an EGU will also reduce the amount of useful life). A state may find that an HRI with this assessment and notes that fuel consumed per unit of electricity technology is applicable for an affected many owner/operators may already output; fuel costs can account for a large coal-fired EGU but find that the costs have steam surface condenser cleaning percentage of the overall costs of power are not reasonable because the source is as part of routine O&M for their units. production. The cost attributable to CO2 already implementing that HRI The EPA is finalizing a determination emission reductions, therefore, is the technology and it would not be that this O&M practice is an element of net cost of achieving HRIs after any reasonable to expect the source to the BSER because it provides savings from reduced fuel expenses. So, replace that HRI technology with a opportunity for heat rate improvement over some time period (depending newer version of the same technology. and is broadly applicable. upon, among other factors, the extent of There are several ways that cost can e. Cost of HRI HRIs, the cost to implement such be considered. For example, when improvements, and the unit utilization evaluating costs for criteria pollutants in The EPA finds that the costs of the rate), the savings in fuel cost associated a BACT analysis or for a ‘‘beyond-the- HRI technologies and practices that the with HRIs may be sufficient to cover the floor’’ analysis for HAP under CAA EPA has identified as the BSER and costs of implementing the HRI section 112, the emphasis is focused on provided in Table 1 are reasonable measures. Thus, the net costs of HRIs the cost of control relative to the amount because they improve the efficiency of associated with reducing CO emissions the units to which they are applied. 2 of pollutant removed—a metric from designated facilities can be This results in lower operating costs typically referred to as the ‘‘cost- relatively low depending upon each (especially lower fuel costs). In fact, effectiveness.’’ There have been EGU’s individual circumstances. It these HRI technologies and practices are relatively few BACT analyses evaluating should be noted that this cost evaluation the types of efficiency improvement GHG reduction technologies for coal- measures that some owners and is not an attempt to determine the fired EGUs. Therefore, there are not a operators have reasonably implemented affordability of the HRI in a business or large number of GHG cost-effectiveness at times over the course of the operating economic sense (i.e., the reasonableness determinations to compare against as a life of their EGUs. In specific of the imposed cost is not determined measure of the cost reasonableness. circumstances the cost to implement by whether there is an economic Nevertheless, in PSD and title V one or more of the technologies may be payback within a predefined time permitting guidance for GHG emissions, determined to be unreasonable—after period). However, the ability of EGUs to the EPA noted that ‘‘it is important in consideration of source-specific factors. recoup some of the costs of HRIs BACT reviews for permitting authorities This will be determined when states through fuel savings supports a finding to consider options that improve the establish standards by applying the that costs are reasonable. While some overall energy efficiency of the source or BSER and taking other factors, including EGUs may not realize the full potential modification—through technologies, remaining useful life, into of cost recuperation from fuel savings, processes and practices at the emitting consideration. the EPA finds that the net costs of unit. In general, a more energy efficient implementing HRIs as an approach to technology burns less fuel than a less (1) Reasonableness of Cost reducing CO2 emissions from fossil fuel- energy efficient technology on a per unit As mentioned earlier, under CAA fired EGUs are reasonable because they of output basis.’’ 181 The EPA has also section 111(a)(1), the EPA determines are not exorbitant or excessive. In fact, noted that a ‘‘number of energy ‘‘the best system of emission reduction these HRIs are the types of efficiency efficiency technologies are available for which (taking into account the cost of improvement measures that some application to both existing and new achieving such reduction . . .) . . . has owners and operators have reasonably coal-fired EGU projects that can provide been adequately demonstrated.’’ 42 implemented at times over the course of incremental step improvements to the U.S.C. 7411(a)(1) (emphasis added). In the operating life of their EGUs. overall thermal efficiency.’’ 182 several cases, the D.C. Circuit has It will be up to the states to, either (2) Cost of the HRI Candidate elaborated on this cost factor in various directly or indirectly, take cost into Technologies Measures ways, stating that the EPA may not consideration in establishing unit- adopt a standard for which costs would specific standards of performance. CAA The estimated costs for the BSER be ‘‘exorbitant,’’ 177 ‘‘greater than the section 111(d) explicitly allows the candidate technologies are presented industry could bear and survive,’’ 178 states to take into consideration, among below in Table 2. These are cost ranges ‘‘excessive,’’ 179 or ‘‘unreasonable.’’ 180 other factors, the remaining useful life from the 2009 Sargent & Lundy These formulations appear to be of the existing source in applying the Study 183 updated to $2016.184 These synonymous and suggest a cost- standard of performance. For example, a costs correspond to ranges of HRI reasonableness standard. Therefore, in state may find that an HRI technology is (percent) presented earlier in Table 1.

177 Lignite Energy, 198 F.3d at 933. production/files/2015-12/documents/ghgpermitting 183 ‘‘Coal-Fired Power Plant Heat Rate 178 Portland Cement, 513 F.2d at 508. guidance.pdf. Reductions’’ Sargent & Lundy report SL–009597 182 179 Sierra Club, 657 F.2d at 343. See page 25, ‘‘Available and Emerging (2009) Available in the rulemaking docket at EPA– 180 Technologies for Reducing Greenhouse Gas HQ–OAR–2017–0355–21171. Id. Emissions from Coal-fired Electric Generating 184 The conversion factor comes from Federal 181 See page 21, ‘‘PSD and Title V Permitting Units,’’ October 2010; https://www.epa.gov/sites/ Guidance for Greenhouse Gases,’’ EPA–457/B–11– production/files/2015-12/documents/electric Reserve Economic Data (FRED). See https:// 001, March 2011; https://www.epa.gov/sites/ generation.pdf. fred.stlouisfed.org.

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TABLE 2—SUMMARY OF COST ($2016/KW) OF HRI MEASURES

<200 MW 200–500 MW >500 MW HRI Measure Min Max Min Max Min Max

Neural Network/Intelligent Sootblowers ... 4.7 4.7 2.5 2.5 1.4 1.4 Boiler Feed Pumps ...... 1.4 2.0 1.1 1.3 0.9 1.0 Air Heater & Duct Leakage Control ...... 3.6 4.7 2.5 2.7 2.1 2.4 Variable Frequency Drives ...... 9.1 11.9 7.2 9.4 6.6 7.9 Blade Path Upgrade (Steam Turbine) ..... 11.2 66.9 8.9 44.6 6.2 31.0 Redesign/Replace Economizer ...... 13.1 18.7 10.5 12.7 10.0 11.2

Improved O&M Practices ...... Minimal capital cost

These costs presented in Table 2 improving the efficiency of the coal- adoption, due to their improved represent both capital and O&M costs. fired EGUs to which they are applied. efficiency and marginally improved Investments in HRI measures at EGUs As such, the EGU would be expected to economic competitiveness relative to should also result in fuel savings which use less fuel to produce the same other electric generators, the designated can offset some or all of the cost of the amount of electricity as it did prior to facilities as a group reduce emissions HRI. However, the EPA does not suggest the efficiency (heat rate) improvement. because they can generate higher levels that HRI measures should meet any None of the candidate technologies is of electricity with a lower overall particular economic criterion (e.g., pay expected to impose any significant emission rate. for themselves through reduced fuel additional auxiliary energy demand. Some commenters on the proposed costs) in order to be applied in state Implementation of heat rate rule highlighted environmental and plans for the establishment of source- improvement measures also would legal concerns with the rebound effect specific standards of performance. achieve reasonable reductions in CO2 as undermining the BSER, while others The technical applicability and emissions from designated facilities in commented that the concern was de efficacy of HRI measures and the cost of light of the limited cost-effective and minimis, not rooted in any legal basis, implementing them are dependent upon technically feasible emissions control and not germane to establishing site specific factors and can vary widely opportunities. In the same vein, because standards of performance. On one side, from site to site. Because there is existing sources face inherent some commenters asserted that the inherent flexibility provided to the constraints that new sources do not, determined BSER is not properly states in applying the standards of existing sources present different, and designed because it would not achieve performance, there is a wide range of in some ways more limited, emission reductions if it results in potential outcomes that are highly opportunities for technological higher utilization and, therefore, dependent upon how the standards are innovation or development. emission increases. Some doubted the applied (and to what degree states take Nevertheless, the final emissions EPA claims of lower systemwide into consideration other factors, guidelines encourage technological emissions and said the EPA had not including remaining useful life). development by promoting further adequately analyzed the concern. Some Because the heat rate improvement development and market penetration of asserted that the assumptions used in technologies result in fuel savings and equipment upgrades and process the analysis do not reflect real world other potential cost savings and the changes that improve plant efficiency considerations that efficiency of all listed candidate technologies are the leading to reasonable reductions in CO2 fossil fuel plants degrades over time, types of improvements and equipment emissions. rather than being static. Also, some upgrades that have been previously asserted that the EPA had understated 3. Discussion of ‘‘Rebound Effect’’ undertaken, the EPA finds that the costs the amount of coal capacity that will of the HRI technologies and practices At proposal, the EPA solicited likely retire in its analysis, and, thus, that have been identified as the BSER comment on potential CO2 emissions the remaining coal fleet will consist of and provided in Table 1 are reasonable. and generation changes that might occur more efficient and competitive units as a result of efficiency improvements at f. Non-Air Quality Health and that may end up emitting more than the designated facilities, including potential EPA’s analysis shows. In addition, some Environmental Impacts, Energy increased generation to the point of a asserted that the EPA’s proposed NSR Requirements, and Other Considerations net increase in emissions from a reforms allow sources to extend As directed by CAA section 111(a)(1), particular facility, also referred to as the lifetimes without requiring controls, the EPA has taken into account non-air ‘‘rebound effect.’’ In some instances, it exacerbating rebound issues. quality health and environment is possible that certain sources increase Other commenters asserted that CAA requirements for each of the candidate in generation (relative to some baseline) section 111 does not require the Agency BSER technologies listed in Tables 1 as a result of lower operating costs from to obtain absolute reductions in and 2. None of the candidate adoption of candidate technologies to emissions at a sector-wide level, and the technologies, if implemented at a coal- improve their efficiency. The EPA EPA’s obligation is to determine the fired EGU, would be expected to result conducted analysis and modeling for BSER through evaluation of emissions in any deleterious effects on any of the the ACE proposal, and found that while performance per output at the unit- liquid effluents (e.g., scrubber liquor) or there were instances (in some scenarios) level. Some commenters stated that any solid by-products (e.g., ash, scrubber where a limited number of designated rebound effect from more efficient units solids). The EPA has also taken into facilities that adopted HRI increased is most likely to come at expense of account energy requirements. All of generation to the point of increasing lower-efficiency coal units, negating the these candidate technologies, when mass emissions notwithstanding the effect. Also, commenters contended that implemented, would have the effect of lower emissions rate resulting from HRI rebound is unlikely to change the

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dispatch order and/or utilization of the state’s discretion to consider in the turbines. Co-firing and refueling involve units based upon the levels of HRI that process of establishing a standard of the burning of natural gas at an existing are reasonable and part of ACE, and, performance for that particular existing boiler.188 thus, any rebound effect would be de source. As noted above and as a result In the ACE proposal, the EPA did not minimis. of modeling, the EPA does not expect consider natural gas repowering as a The EPA agrees with the commenters these considerations to be necessary in potential system of emission reduction who do not see the rebound effect as the state plan development process. (i.e., as a candidate for the BSER) based undermining the BSER determination in on the reasoning that this option would 4. Systems That Were Evaluated But Are this rule, because this rule is aimed at fundamentally redefine the existing Not Part of the Final BSER improving a source’s emissions rate sources subject to the rule.189 Some performance at the unit-level. Indeed, in The EPA identified several systems of commenters argued, however, that coal- repealing the ‘‘percent reduction’’ GHG emission reduction that may be fired utility boilers can reduce requirement from the 1977 CAA applied at or to designated facilities but emissions through natural gas Amendments, Congress expressly did not propose that they should be part repowering and it should be the BSER. acknowledged that standards of of the BSER. The Agency solicited Other commenters argued that the performance were to be expressed as an comment on the rationale for ‘redefining the source’ concept from emissions rate.185 In addition, as noted eliminating or not identifying those PSD was inappropriate for application above, this rule results in overall alternative systems as part of the BSER. to NSPS. After considering public reductions of emissions of CO2. Because After consideration of public comments, comments on this issue, the EPA the BSER in this rule improves the the EPA is not revising its proposed concludes that repowering should not emissions rate of designated facilities determination and is not including any be considered for purposes of CAA and results in overall reductions, the additional or different systems of section 111(d). As described in more limited rebound effect that may occur emission reduction in the final BSER detail below, repowering is not a does not undermine the BSER. determination. A description of the ‘‘system’’ of emission reduction for a Nonetheless, to the extent considered systems of emission source at all because it cannot be commenters have asserted that ACE reduction that are not part of the final applied to the existing sources subject to would cause an increase in aggregate BSER along with a summary of this rule (steam generating units). CO2 emissions due to some sources significant public comments is provided Rather, repowering these existing units operating more, this concern is not below. would replace them entirely with a supported by our analysis. The EPA The EPA previously considered co- different type of source (stationary conducted updated modeling and firing (including 100 percent combustion turbines) that would be analysis for the final ACE rule (see conversion) with natural gas and subject to the NSPS in 40 CFR part 60, Chapter 3 of the RIA for more details) implementation of carbon capture and subpart TTTT.190 Even if repowering and confirmed that aggregate CO2 storage (CCS) as potential BSER options. were to be evaluated to determine if it emissions from the group of designated See 80 FR 64727. In that analysis, the was part of the BSER, the EPA has facilities are anticipated to decrease EPA found some natural gas co-firing found non-air quality health and (outweighing any potential CO2 and CCS measures to be technically environmental impacts and energy increases related to increased generation feasible but determined that switching requirements that demonstrate that by certain units). from coal to gas is ‘‘a relatively costly repowering is not part of the BSER.191 The final ACE rule establishes the approach to CO2 reductions at existing As described above, a ‘‘standard of BSER, and a framework for states to coal steam boilers when compared to performance’’ under CAA section 111(d) determine rate-based standards of other measures such as heat rate must be ‘‘establishe[d]’’ for an ‘‘existing performance for designated facilities. improvements. . .’’ 186 and that the cost source.’’ However, repowering a coal- The BSER for ACE is expressed as a to implement CCS for existing source fired boiler—that is, the replacement of rate-based approach, which should standards is not reasonable and that a boiler with a stationary combustion necessarily result in rate-based emission ‘‘CCS is not an appropriate component turbine—creates a ‘‘new source,’’ which reductions. The modeling and analysis of the [BSER].’’ 187 A more detailed is regulated directly by the EPA under show individual units and the entire description of the current consideration 40 CFR part 60, subpart TTTT coal fleet reducing emission rates, as of these technologies is provided below. (establishing standards for the control of well as an aggregate decrease in mass a. Natural Gas Repowering GHG emissions from new, modified, or emissions. As such, any potential reconstructed steam generating units, ‘‘rebound effect’’ is determined to be Coal-fired utility boilers can reduce IGCCs, or stationary combustion small and manageable (if necessary) and their emissions by firing natural gas turbines). The ‘‘best system of emission does not require any specific remedy in instead of—or in combination with— reduction’’ for an existing source, the final rule. However, if a state coal. This can be done in three different determines that the source-specific ways: (1) By repowering, (2) by co- 188 Co-firing and refueling are discussed in factors of a designated facility dictate firing, or (3) by refueling. Repowering is section III.E.4.b of this preamble. that the rebound effect is an issue that when an existing coal-fired boiler is 189 See 83 FR 44753. should be considered in setting the replaced with one or more natural gas- 190 The EPA is not concluding whether or not the ‘redefining the source’ concept can or should be standard of performance, that is within fired stationary combustion turbines, while still utilizing the existing steam applied in the context of the NSPS program. 191 These non-air quality health and 185 See 1990 CAA Amendments, section 403, 104 environmental impacts and energy requirements are Stat. at 2631 (‘‘the Administrator shall promulgate 186 Technical Support Document (TSD) for discussed in more detail below in the discussion of revised regulations for standards of performance Carbon Pollution Guidelines for Existing Power refueling and co-firing. Except to the extent that . . . that, at a minimum, require any source subject Plants: Emission Guidelines for Greenhouse Gas discussion involves the inefficient combustion of to such revised standards to emit sulfur dioxide at Emissions from Existing Stationary Sources: natural gas, the non-air quality health and a rate not greater than would have resulted from Electric Utility Generating Units; Chapter 6, June environmental impacts and energy requirements compliance by such source with the applicable 10, 2014, Available at Docket Item No. EPA–HQ– found for these technologies are similar, if not standards of performance under this section prior OAR–2013–0602–36852. identical, to those the EPA has found for to such revision’’) (emphasis added). 187 Id. Chapter 7 repowering.

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therefore, simply cannot be the creation during standby periods). Coal-fired distillate fuel oil was more than four of a new source that is regulated under boilers always use a secondary fuel times higher than that of natural gas; so, separate authority. Otherwise, the EPA (most often natural gas or distillate fuel if there was an adequate supply of could subvert the provisions of CAA oil), utilizing burners specifically natural gas, then it would be much more section 111(d) (which authorizes states configured to bring the boiler from a economically favorable to utilize that to regulate existing sources in the first cold, non-operating status to a natural gas rather than the much more instance) and require all existing temperature where coal, the primary expensive distillate fuel oil. As sources to transform into ‘‘new fuel, can be safely introduced for normal explained earlier, for plants that require sources,’’ which the Agency can directly operations. additional or new pipeline capacity, the regulate under CAA section 111(b). The EPA conducted its own analysis capital cost of constructing new Therefore, repowering a coal-fired boiler using EIA fuel use data from 2017.192 pipeline laterals is approximately $1 is not a ‘‘system’’ within the scope of The EPA’s analysis supports the million per mile of pipeline built. the BSER. assertion that nearly 35 percent of coal- Therefore, a 50-mile gas pipeline would fired units co-fired (in either sense of add $50 million—$100/kW for a typical b. Natural Gas Co-Firing and Refueling co-firing as described above) with 500 MW unit—to the capital costs of Some coal-fired utility boilers use natural gas in 2017. However, very adding co-firing capability. natural gas or other fuels (such as few—less than four percent of coal-fired As mentioned earlier, the EPA has distillate fuel oil) for startup operations, units—co-fired with natural gas in an previously evaluated the costs for maintaining the unit in ‘‘warm amount greater than five percent of the associated with using natural gas standby,’’ or for NOX control (either total annual heat input. This strongly refueling or co-firing as a GHG directly as a combustion fuel or in suggests that most of the natural gas that mitigation option. See 79 FR 34875. For configuration referred to as natural gas was utilized at these sites was used as a typical base-load coal-fired EGU, the reburn). During such periods of natural a secondary fuel for unit startup or to average cost of CO2 reductions achieved gas co-firing, an EGU’s CO2 emission maintain the unit in ‘‘warm standby’’ through co-firing with 10 percent rate is reduced as natural gas is a less rather than as a primary fuel for natural gas would be approximately carbon intensive fuel than coal. For generation of electricity. Further, the $136 per ton of CO2. While a utility example, at 10 percent natural gas co- small number of units that co-fired with boiler that is converted to 100 percent firing, the net emissions rate (lb/MWh- greater than five percent natural gas natural gas-fired can offset some of the net) of a typical unit could decrease by during 2017 operated at an average capital costs by reducing its fixed approximately 4 percent. capacity factor of only 24 percent— operating and maintenance costs Commenters stated that the EPA indicating that they are not the most (though, as discussed below, the costs should determine that natural gas co- economical units and are not dispatched would still be considerably higher than firing is the BSER because it is as frequently as those units that used the HRI technologies that the EPA technically feasible, readily available, less than five percent natural gas. For identified as the BSER), a unit that is co- achieves significant emission comparison, in 2017, 62 percent of coal- firing natural gas with coal would reductions, and may be the most cost- fired utility boilers co-fired with some continue to bear the fixed costs effective option for some facilities. amount of distillate fuel oil and, as with associated with equipment needed for Some commenters also provided data natural gas, the vast majority of those coal combustion, raising the cost per ton (from EIA) to assert that co-firing is units used less than 5 percent distillate of CO2 reduced. widely used and adequately fuel oil (again, strongly suggesting that In determining the BSER, CAA demonstrated at coal-fired EGUs. The it is primarily used as a secondary fuel section 111(a)(1) also directs the EPA to commenters contended that a significant for startup and warm standby). take into account non-air quality health number of coal-fired EGUs have the The EPA also disagrees that the data and environmental impacts and energy capacity to burn both natural gas and demonstrate that co-firing can be requirements. The EPA is unaware of coal. One commenter asserted that 35 considered at the national level as an any significant non-air quality health or percent of coal-fired utility boilers adequately demonstrated system of environmental impacts associated with across 33 states co-fired with natural emission reduction and that there are natural gas co-firing. However, in taking gas. Another commenter provided a easy paths to expand it at a reasonable energy requirements into account, the table listing coal-fired EGUs that have cost. The EIA 923 fuel use data EPA notes that co-firing natural gas in recently converted to natural gas or are indicated that about 65 percent of coal- coal-fired utility boilers is not the best co-firing with natural gas. One fired utility boilers use something other or most efficient use of natural gas and, commenter cited data from the EIA and than natural gas as the secondary fuel as noted above, can lead to less efficient claimed that 48 percent of steam for periods of startup and standby operation of utility boilers. NGCC generating EGUs are already co-firing operations. Distillate fuel oil is by far stationary combustion turbine units are some amount of natural gas. the most commonly used secondary much more efficient at using natural gas While the EPA agrees with the fuel. While the use of distillate fuel oil as a fuel for generating electricity and it assertion that there are existing coal does not necessarily mean that the unit would not be an environmentally plants that have some access to a supply lacks access to natural gas, it suggests positive outcome for utilities and of natural gas, the EPA disagrees that that for many of those units, there is an owner/operators to redirect natural gas the data demonstrate that co-firing is a inadequate supply to serve even as a from the more efficient NGCC EGUs to system of emission reduction that has secondary fuel for startup and standby the less efficient utility boilers to satisfy been or that could be implemented on operations. The 2018 average price 193 of an emission standard at the utility a nationwide scale at reasonable cost. boiler. Some commenters disagreed The EPA believes that commenters have 192 See the memorandum ‘‘2017 Fuel Usage at with the EPA’s claim that increased use Affected Coal-fired EGUs,’’ available in the conflated operational co-firing (i.e., co- of natural gas in a utility boiler would firing coal and natural gas to generate rulemaking docket (Docket ID No. EPA–HQ–OAR– 2017–0355). electricity) with startup co-firing (i.e., 193 The 2018 average U.S. power generation fuel generation was $16.13 per million Btu. U.S. EIA only using natural gas to heat up a costs for natural gas was $3.52 per million Btu Short Term Energy Outlook, https://www.eia.gov/ utility boiler or to maintain temperature while the cost for distillate fuel oil for power outlooks/steo/tables/pdf/2tab.pdf.

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come at the expense of its use in more inefficiently were not persuasive capital costs by reducing its fixed efficient NGCC units. The EPA did not because the United States has such an operating and maintenance costs, in intend to imply that there is now (or abundant supply of natural gas. The most cases, the most significant cost that there will be) a restricted supply of EPA disagrees for many of the same change associated with switching from natural gas. Instead, the EPA suggested reasons that the Agency relied upon to coal to gas is likely to be the difference that, if there were to be an increase in reject the consideration of natural gas as in fuel cost. Using the EIA’s projections the use of natural gas, the more efficient the BSER. First, it is on the higher end of future coal and natural gas prices, use for that increased natural gas would of the cost of the measures the EPA switching a utility boiler from coal-fired be as fuel for under-utilized NGCC units considered even for units with ready to natural gas-fired could more than rather than in less efficient utility natural gas availability; second, many double the unit’s fuel cost per MWh of boilers. The EPA does not believe that designated facilities do not have natural generation. For a typical base-load coal- establishing a BSER that, for all gas availability, so it is not broadly fired EGU, the average cost of CO2 practical purposes, would mandate applicable. reductions achieved through gas increased use of natural gas in utility The same factors discussed above lead conversion would be approximately $75 the Agency to conclude that refueling boilers is good policy. per ton of CO2. This cost could also be Given that a natural gas co-firing- also cannot be BSER. Refueling is when much higher as there would very likely based BSER would result in standards an existing coal-fired boiler is converted be an increase in natural gas prices that are more costly than standards to a natural gas-fired boiler (i.e., firing corresponding to the increased demand based on application of the candidate 100% natural gas). In the ACE proposal, from widespread coal-to-gas conversion. technologies for heat rate the EPA did not consider natural gas improvements, that such a BSER would refueling as a potential system of The EPA also found that encourage inefficient use of natural gas, emission reduction (i.e., as a candidate consideration of energy requirements (as that implementation would be even for the BSER) based on the reasoning required by CAA section 111(a)(1)) more expensive and challenging for that this option would fundamentally provides additional reasons why redefine the existing sources subject to refueling natural gas in a utility boiler those units that currently have limited 198 or no access to natural gas, the EPA the rule.195 Some commenters argued, should not be considered BSER. concludes that co-firing natural gas in however, that coal-fired utility boilers Burning natural gas in a utility boiler is coal-fired boilers is not the BSER. can reduce emissions through natural not the best use of such fuel as it is Some commenters requested that co- gas refueling and should be the BSER. much less efficient than burning it in a firing be added to the list of HRI Other commenters argued that the combustion turbine. New natural gas candidate technologies (discussed in ‘redefining the source’ concept from combined cycle (NGCC) units can more detail below), the combination of PSD was inappropriate for application convert the heat input from natural gas which would represent the BSER. to NSPS.196 After considering public to electricity with an efficiency of more However, whereas all coal-fired utility comments on this issue, the EPA than 50 percent.199 A coal-fired utility boilers can apply (or have already concludes that natural gas refueling, like boiler that is repurposed to burn 100 applied) HRI measures, natural gas co- natural gas co-firing, is not the BSER. percent natural gas will see a reduction firing does not satisfy the same CAA The EPA has previously evaluated the in efficiency of up to five percent (to section 111(a)(1) criteria (see above). costs associated with using natural gas less than 40 percent efficiency) as the refueling or co-firing as a GHG higher hydrogen content in the natural Moreover, co-firing can negatively 197 impact a unit’s heat rate (efficiency) due mitigation option. The capital costs gas fuel will lead to higher moisture to the high hydrogen content of natural of plant modifications required to losses that will negatively impact the gas and the resulting production of switch a coal-fired EGU completely to boiler efficiency.200 Widespread natural gas are roughly $100–300/kW, water as a combustion by-product.194 refueling is not a practice that the EPA not including any costs associated with And depending on the design of the should be promoting as it is not the constructing additional pipeline boiler and extent of modifications, some most efficient use of natural gas. capacity. Many coal-fired plants do not boilers may be forced to de-rate (a Utilities choosing to increase use of have immediate and ready access to any reduction in generating capacity) to natural gas in a combined cycle or supply of natural gas. Others that do maintain steam temperatures at or simple cycle combustion turbine is a have access to a supply of natural gas within design limits, or for other more efficient way to utilize natural gas have only a limited supply (i.e., enough technical reasons. Accordingly, natural for electricity generation. In reaching for startup and warm standby firing, but gas co-firing cannot be applied in this determination, the EPA is mindful not enough for full load firing). For combination with the HRI measures of Congress’s direction to ‘‘tak[e] into plants that require additional pipeline account . . . energy requirements’’ in identified as the BSER. However, capacity, the capital cost of constructing natural gas co-firing might be determining the best system of emission new pipeline laterals is approximately reduction in CAA section 111(a)(1). appropriate for certain sources as a $1 million per mile of pipeline built. A compliance option. For a discussion of Consideration of ‘‘energy requirements’’ 50-mile gas pipeline would add $50 is one of the factors informing the EPA’s compliance options, see below section million—$100/kW for a typical 500 MW III.F.2. judgment that it would be inappropriate unit—to the capital costs of the to base performance standards on an Some commenters also suggested that conversion. the EPA’s concerns about using gas While a coal-fired utility boiler that is 198 converted to a 100 percent natural gas- See 83 FR 44762. 194 199 Natural gas firing or co-firing degrades the fired boiler could offset some of the ‘‘Cost and Performance Baseline for Fossil boiler’s efficiency (relative to the use of coal) Energy Plants Volume 1a: Bituminous Coal (PC) and primarily due to the increased production of water. Natural Gas to Electricity’’ Rev. 3, DOE/NETL– Some of the heat that is produced in the 195 See 83 FR 44753. 2015/1723 (July 2015). combustion process will be used to heat that flue 196 As with repowering, the EPA is not 200 ‘‘Leveraging Natural Gas: Technical gas moisture (which will exit with the stack gases) concluding whether or not the ‘‘redefining the Considerations for the Conversion of Existing Coal- rather than to converting water in the boiler tubes source’’ concept can or should be applied in the Fired Boilers’’, Babcock Power Services, Presented to steam. The efficiency declines because there is context of the NSPS program. at 2014 ASME Power Conference (July 2014), less heat available to produce useful steam. 197 See 79 FR 34875. Baltimore, MD. Available in the rulemaking docket.

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inherently energy-inefficient practice Although biomass co-firing methods are the individual designated facility. Use such as refueling. technically feasible and can be cost- of biomass in affected units is therefore NGCC units have become the effective for some designated facilities, not consistent with the plain meaning of preferred option for intermediate and these factors and others (namely, that ‘‘standard of performance’’ and cannot baseload natural gas power generation. any potential net reductions in be considered as part of the BSER.206 Other technologies (such as simple emissions from biomass use occur Additionally, many commenters cycle aeroderivative turbines) offer outside of the regulated source and are agreed with the ACE proposal that significant advantages for peaking outside of the control of the designated biomass co-firing should not be part of purposes in that they can start up facility, which is incompatible with the the BSER because it is not sufficiently quickly and require fewer staff to interpretation of the EPA’s authority cost-effective, there is not a reliable operate. Some combination of and the permissible scope of BSER as supply of biomass fuel accessible aeroderivative turbines and flexible set forth in section II above) are the nationally, co-firing with biomass has a combined cycle units offer advantages considerations that prevent its adoption negative impact on unit heat rate, and in both efficiency and the flexibility to as the BSER for the source category. co-firing requirements would ‘‘redefine change loads when compared to utility In the ACE proposal, the EPA sought the source.’’ Many commenters boilers. For these reasons, the power comment on the inclusion of forest- supported inclusion of fuel co-firing as sector has moved away from the use of derived and non-forest biomass as non- a component of the BSER but focused gas-fired boilers. There have been no BSER compliance options for affected primarily on argument for natural gas new natural gas-fired utility boilers built units to meet state plan standards.205 In co-firing (as discussed earlier). Some of since the 1980s. response, the EPA received comments these commenters specifically asserted There have been some cases where both supporting and opposing the use of that biomass use is a widely available coal-fired utility boilers have chosen to biomass for compliance (as discussed in and proven GHG reduction technology. refuel (i.e., have chosen to convert to section III.F.2.b); however, commenters As discussed by the EPA previously natural gas-firing). In those cases, the also spoke to the appropriateness of in the ACE proposal and other motivation was largely to preserve including biomass firing as part of the instances,207 biomass fuel use reserve capacity without investing in BSER. Some commenters noted that co- opportunities are dependent upon many the air pollution controls needed to firing with biomass cannot be a ‘‘system regional considerations and meet air emission standards—especially of emission reduction’’ as it increases limitations—namely fuel supply 201 MATS. The EPA examined fuel use CO2 emissions at the source. proximity, reliability and cost—that data submitted by plant owner/ Commenters further asserted that the prevent its adoption as BSER on a operators to the U.S. Energy Information EPA has failed to demonstrate how national level (whereas nearly all Administration (EIA) on Form 923.202 firing biomass meets the CAA section sources can or have implemented some According to that data, there were 131 111 requirements and the criteria for form of HRI measures). The natural gas-fired utility boilers 203 in qualifying as a system of emission infrastructure, proximity, and cost 2012 and 170 such units in 2017. The reduction described in the Proposed aspects of co-firing biomass at existing average capacity factor for those units Repeal and the ACE proposal. was only 11 percent in 2012 and 2017. Upon consideration of comments and 206 Notwithstanding this conclusion in the Between 2012 (before the MATS in accordance with the plain language of context of CAA section 111(d), the EPA believes that a PSD permitting authority may still reach the compliance date) and 2017 (after MATS CAA section 111 (discussed above in conclusion that use of some type(s) of biomass is was fully in effect), 39 utility boilers section II.B), the EPA is now clarifying BACT for greenhouse gases in the context of a PSD converted from coal-fired units to that biomass does not qualify as a permit application where the applicant proposes to become natural gas-fired utility boilers. system of emission reduction that can use biomass, as discussed in the EPA’s Guidance for Determining Best Available Control Technology for Those natural gas-fired utility boilers be incorporated as part of, or in its Reducing Carbon Dioxide Emissions from operated at an average capacity factor of entirety, as the BSER. As described in Bioenergy Production (March 2011). While biomass less than 10 percent, indicating that section III.F.2 of this preamble. the combustion may result in more greenhouse gas they were likely utilized only during BSER determination must include emissions (in particular CO2) per unit of production than combustion of fossil fuels, a comparative periods of high demand. systems of emission reduction that are analysis of biomass and other fuels may not be These non-air quality health and achievable at the source. While the required in the BACT context. As EPA has environmental impacts and energy firing of biomass occurs at a designated observed, ‘‘where a proposed bioenergy facility can requirements demonstrate that refueling facility, biomass firing in and of itself demonstrate that utilizing a particular type of biogenic fuel is fundamental to the primary purpose is not the BSER. does not reduce emissions of CO2 of the project, then at the first step of the top-down emitted from that source. Specifically, c. Biomass Co-Firing process, permitting authorities can rely on that to when measuring stack emissions, determine that use of another fuel would redefine The EPA previously proposed that co- combustion of biomass emits more mass the proposed source.’’ Bioenergy BACT Guidance at firing of biomass in coal-fired utility 15. Moreover, even if biomass is compared to fossil of emissions per Btu than that from fuels and ranked lower at Step 3 of a top-down boilers is not the BSER for existing fossil combustion of fossil fuels, thereby BACT analysis, broader offsite environmental, fuel-fired sources due to cost and increasing CO2 emissions at the source. economic, and energy considerations related to 204 biomass use (e.g., any potential offsite net carbon achievability considerations. Recognition of any potential CO2 sequestration associated with growth of the biomass emissions reductions associated with feedstock) may be considered in Step 4 of a top- 201 See 40 CFR part 63, subpart UUUUU. biomass utilization at a designated down BACT analysis. See Bioenergy BACT 202 Monthly fuel use data is submitted to the EIA facility relies on accounting for Guidance at 20–21. It is therefore consistent to on Form 923. Available at https://www.eia.gov/ activities not applied at and largely not determine that the firing of biomass does not electricity/data/eia923/. For details of the EPA data qualify as a ‘‘standard of performance’’ for setting analysis, see the memorandum ‘‘2017 Fuel Usage at under the control of that source, or complying with the BSER because it does not Affected Coal-fired EGUs’’ available in the including consideration of offsite reduce the GHG emissions of a fossil fuel-fired rulemaking Docket ID No. EPA–HQ–OAR–2017– terrestrial carbon effects during biomass source, while also allowing the consideration of any 0355. fuel growth, which are not a measure of potential offsite environmental, economic, or 203 Natural gas-fired utility boilers are those with energy attributes when considering an application capacity of more than 25 MW that use more than emissions performance at the level of that treats biomass as BACT for a proposed biomass 90 percent natural gas on a heat input basis. facility in the PSD permitting context. 204 See ACE proposal and 80 FR 64756. 205 See 83 FR 44766. 207 See 80 FR 64756.

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coal EGUs are similar in nature and inject it, and then monitor the injection capacity and that EOR sites are similarly concept to those of natural gas. While space to ensure the CO2 remains stored. geographically limited, with 19 states there are a few existing coal-fired EGUs Currently there are only two large-scale having little or no demonstrated EOR that currently co-fire with biomass fuel, commercial applications of post- opportunity. However, other those are in relatively close proximity to combustion CCS at a coal-fired power commenters claimed that a technology cost-effective biomass supplies. plant—the Boundary Dam project in need not be feasible at every site to be Therefore, even if biomass firing could Saskatchewan, Canada and the Petra a component of BSER especially since be considered a ‘‘system of emission Nova project at the W.A. Parish plant the EPA is relying on site-specific reduction,’’ the EPA is not able to near Houston, Texas.209 Commenters analyses. The commenters noted that include the use of biomass fuels as part noted that both of the demonstration not all HRI options are applicable to of the BSER in this action due to the projects were heavily subsidized by every source, so the EPA cannot current cost and achievability government support and were able to disregard CCS from the BSER options considerations and limitations generate additional income from the based on ‘‘national availability.’’ discussed above. Additional discussion sale of captured CO2 for enhanced oil Commenters noted that 60 GW (or on biomass is provided in section recovery (EOR) and, without these about 20 percent) of the coal-fired III.F.2.b. below. subsidies, neither project would have power plant capacity might be amenable 208 been economically viable. to CCS based on locality and that North d. Carbon Capture and Storage (CCS) Commenters addressed the cost of America has widespread and abundant In the ACE proposal, the EPA noted installing CCS on an existing coal-fired geologic storage options with the that while CCS is an advanced emission EGU and noted that it can be much capacity to sequester over 500 years of reduction technology that is currently costlier and more technically the U.S.’s current energy-related CO2 under development, the Agency must challenging to retrofit the technology to emissions. Commenters claimed that 90 balance the promotion of innovative an existing EGU as compared to percent of existing coal-fired power technologies against their economic, installation on a newly constructed unit plants are within 100 miles from the energy, and non-air quality health and (where the system can be incorporated center of a basin with adequate storage environmental impacts. The EPA into the design and space allocation of capacity and more than half of the proposed that neither CCS nor partial the new plant). Other commenters existing plants are less than 10 miles CCS are technologies that can be claimed that CCS can achieve from the center of a basin. considered the BSER for existing fossil significant emission reductions (up to The EPA has considered all these fuel-fired EGUs and explicitly solicited 90 percent), that there is opportunity for public comments and has concluded comment on any new information some sources to generate income from that, as proposed, CCS is not the BSER regarding the availability, applicability, the sale of captured CO2, and that there for emissions of CO2 from existing coal- costs, or technical feasibility of CCS are additional financial incentives from fired EGUs—nor does it constitute a technologies. the recently approved 2018 Internal component of the BSER, as some Many commenters agreed with EPA’s Revenue Code (IRC) section 45Q tax commenters have suggested. As proposed finding that CCS (including credits for stored CO2, so now CCS may discussed in section III.E.1, above, partial CCS) should not be part of the be more cost-effective than HRI options concerning the ‘‘guiding principles’’ for BSER. The commenters stated that it is for some facilities. One commenter identifying the BSER under CAA section not adequately demonstrated, performed modeling runs that included 111(d), the BSER is based on what is sufficiently cost-effective, or nationally the section 45Q tax credit and found adequately demonstrated and broadly available. Other commenters disagreed that, for some sources, CCS would achievable across the country. Under and claimed that CCS is technically provide much greater emission CAA section 111(b)(1), the EPA feasible and adequately demonstrated reductions than HRI options at a determines ‘‘standards of performance’’ and should be part of BSER, asserting reasonable cost and concluded that the for new sources and under section that the EPA has previously provided EPA should include CCS as part of the 111(d)(1), the states determine evidence in the record during the 2016 BSER. Other commenters minimized the ‘‘standards of performance’’ for existing denial of petitions for reconsideration of impact of the section 45Q tax credit for sources within their jurisdiction. the CPP that CCS had been successfully a variety of reasons. Importantly, the term ‘‘standard of implemented at power plants. Several commenters claimed that performance’’ is given a uniform Commenters also asserted that there are access to appropriate CO2 storage definition under section 111(a)(1) for many vendors that offer carbon capture locations is critical to the feasibility and purposes of both new and existing technologies for power plants, which cost of CCS. They described the sources, and, in accordance with that demonstrates that the technology is geographic limitations of both deep definition, the Administrator is required commercially available and adequately saline aquifers and depleted oil fields to determine the BSER as a predicate for demonstrated. (EOR fields) noting that 15 states have the standards of performance for both CCS is a difficult and complicated little or no demonstrated storage new and existing sources. In this process, requiring numerous pieces of capacity or have very limited storage manner, the text and structure of section process equipment to capture CO2 from 111 indicate that the EPA must make the exhaust gas, compress it for 209 Several commenters noted that the Petra Nova the BSER determination at the national, transport, transport it in a CO2 pipeline, project received funding from the U.S. Department source-category level. Thus, the EPA of Energy (DOE) through the Clean Coal Power disagrees with the commenters who 208 CCS is sometimes referred to as Carbon Initiative and stated that the project is, pursuant to argue that because the EPA is Capture and Sequestration. It is also sometimes section 402(i) of the Energy Policy Act of 2005 referred to as CCUS or Carbon Capture Utilization (EPAct05), therefore, precluded from being used to emphasizing that standard setting will and Storage (or Sequestration), where the captured demonstrate that the technology is ‘‘adequately be done on a unit-by-unit (rather than CO2 is utilized in some useful way and/or demonstrated’’ under section 111 of the CAA. Some fleetwide) basis, all viable emission permanently stored (for example, in conjunction commenters noted that the DOE funding was only reduction options should be evaluated with enhanced oil recovery). In this document, the for the initial 60 MW slip-stream demonstration EPA considers these terms to be interchangeable project, but the CCS project at Petro Nova was later at the unit level. and for convenience will exclusively use the term expanded to a 240 MW slip-stream and no federal Whereas HRI measures are broadly CCS. funding was received for this expansion. applicable to the entire existing coal-

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fired power plant fleet, the EPA NETL Pulverized Coal Carbon Capture BSER, they would almost certainly force determines that CCS or partial CCS is Retrofit Database tool (April 2019) 213 the closure of the coal-fired power not. The EPA agrees that there may be estimates that the operating costs of plants that would be required to install some existing coal-fired EGUs that find existing coal-fired EGUs range from 22 them. Many of those plants have a the application of CCS to be technically to 44 $/MWh.214 The incremental marginal profit margin, as demonstrated feasible and an economically viable increase in generating costs, including by the high rate of plant closure and the control option, albeit only under very the recovery of capital costs over a 30- relatively low amounts of operation (i.e., specific circumstances. However, the year period, due to CCS range from 56 capacity factors) in recent years. Thus, high cost of CCS, including the high to 77 $/MWh.215 For reference, these costs must be considered capital costs of purchasing and according to the EIA, the average exorbitant. See section III.E.1. for a installing CCS technology and the high electricity price for all sectors in March discussion of the guiding principles in 216 costs of operating it, including high of 2019 was 103.8 $/MWh. About 60 determining the BSER. parasitic load requirements, prevent percent of these latter costs (60 $/MWh) CCS or partial CCS from qualifying as are associated with generation and 40 As noted above, the Boundary Dam BSER on a nationwide basis. percent with transmission and project in Saskatchewan, Canada and According to the DOE National distribution of the electricity.217 Thus, the Petra Nova project at the W.A. Energy Technology Laboratory (NETL), the incremental increase in generating Parish plant near Houston, Texas are the the incremental cost from capital costs due to CCS by itself would equal only large-scale commercial expenditures alone of installing partial or exceed the average generation cost of applications of post-combustion CCS at or full capture CCS 210 on a new coal- electricity for all sectors. The costs of a coal-fired power plant. They both have fired EGU ranged from $626 (for 16% partial CCS are less than full CCS, but retrofit CCS or partial CCS, and they capture) to $2,098 (for full capture) per due to economies of scale, costs do not both received significant governmental kW (2011 dollars).211 These costs are for reduce as quickly as reductions in the subsidies—including, for the Petra Nova new CCS equipment installed on a new capture rate. For example, the capital project, both direct federal grants from facility, but they fairly represent the costs of treating only 18 percent of the the DOE through the Clean Coal Power costs of new CCS equipment installed flue gas (a 16 percent reduction in Initiative and the IRC section 45Q tax on an existing facility; indeed, these emissions of CO2) are about 30 percent credits—and relied on nearby EOR costs are probably lower than the actual of the capital costs of treating all of the opportunities. Due to the high costs of costs of installing new CCS equipment flue gas (full capture or a 90 percent CCS, all of these subsidies and EOR on an existing facility, because the costs reduction in emissions of CO2). opportunities were essential to the of retrofitting pollution controls on an Similarly, at full capture, treating only commercial viability of each project.219 existing facility generally are greater 18 percent of the flue gas (a 16 percent Some commenters have asserted that than the costs of installing pollution reduction in emissions of CO ) still 2 the costs of CCS are reasonable and controls on a new facility. In contrast, increases the cost of electricity by about explain, as a central part of their as noted elsewhere, the cost of the HRI 28 percent of the increase that results assertion, that the availability of tax that constitute the BSER for this rule from treating all of the flue gas.218 credits under section 45Q, as revised by range from $25–$47 per kW (2016 Again, these costs are probably lower the Bipartisan Budget Act of 2018, dollars). Thus, the costs of partial CCS, than the actual costs of installing new considering only the capital costs and CCS equipment on an existing facility. significantly lowers the costs of CCS. In not the operating costs, are far higher Not only are these costs far higher than fact, they have asserted, that the tax than—more than 13 times—the cost of what the EPA has identified as the credits, which have an initial value of what the EPA has identified as the $35 per tonne (i.e., metric ton) for CO2 BSER. capture system consumes 53 MW of direct electrical stored through EOR, offset about 70% of Viewing the costs of CCS through load and steam that could have otherwise been used the cost of CCS, with EOR offsetting the other prisms yields the same to generate approximately 86 MW of electricity. rest.220 However, the section 45Q tax 213 https://www.netl.doe.gov/energy-analysis/ credits are limited in time: The credit determination. According to NETL, the details?id=2949. capital costs of a CCS system with 90 214 Existing coal-fired power plants have for equipment placed in service after the percent capture increases the cost of a generally already paid off the initial construction date of enactment of the Bipartisan new coal-fired power plant (i.e., capital) expenses. Budget Act of 2018 is available, in 215 Variable operating costs represent general, only for facilities and approximately 75 percent relative to the approximately $15/MWh and the remaining costs cost of constructing a new coal-fired are recovered capital over a 30-year period. The equipment for which construction power plant without post-combustion capital costs assume the power plant can recover begins before January 1, 2024. IRC control technology. Furthermore, the the costs over 30 years. If the actual remaining section 45Q(d)(1). Under the present useful life of the power plant itself is less, the costs rule, state plans are not required to be additional auxiliary load required to would be higher because the capital would have to support the CCS system consumes be recovered over a shorter time period. The submitted until mid-2022 and the states approximately 20 percent of the power average age of the remaining coal fleet is have the authority to determine their 212 approximately 42 years, and the average age of sources’ compliance schedule; plant’s potential generation. The retirement for coal-fired power plants is currently 54 years (http://www.americaspower.org/wp- compliance schedules are generally 210 Full capture is considered to occur when 100 content/uploads/2018/03/Coal-Facts-August-31- expected to last 24 months (i.e., until percent of the flue gas is treated, resulting in a 90 2018.pdf). Therefore, a significant portion of the mid-2024), but could in some instances percent reduction in emissions of CO2 relative to existing coal-fired will likely retire in less than 30 a power plant without carbon capture. years. be longer, as noted in preamble section 211 ‘‘Cost and Performance Baseline for Fossil 216 https://www.eia.gov/electricity/monthly/epm_ Energy Plants Supplement: Sensitivity to CO2 table_grapher.php?t=epmt_5_6_a. 219 The EPA discussed the government funding Capture Rate in Coal-Fired Power Plants,’’ une 22, 217 https://www.eia.gov/outlooks/aeo/data/ and the EOR revenue from the transport of captured 2015; DOE/NETL–2015/1720 https:// browser/#/?id=8-AEO2019&cases=ref2019& CO2 to the Hilcorp’s West Ranch Oil Field in www.netl.doe.gov/projects/files/[FR sourcekey=0. ‘‘Standards of Performance for Greenhouse Gas Doc.SupplementSensitivitytoCO2CaptureRatein[FR 218 ‘‘Cost and Performance Baseline for Fossil Emissions from New, Modified, and Reconstructed _ Doc.CoalFiredPowerPlants 062215.pdf. Energy Plants Supplement: Sensitivity to CO2 Stationary Sources: Electric Generating Units,’’ 80 212 A CCS system requires both auxiliary steam Capture Rate in Coal-Fired Power Plants,’’ June 22, FR 64510, 64551 (October 23, 2015). and electricity to operate. According to NETL, a full 2015; DOE/NETL–2015/1720. 220 EPA–HQ–OAR–2017–0355–24266 at 18.

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III.F.1.a.(2).221 In order for sources to capacity is located across the integration issues, etc.) and the implement CCS and be able to rely on country.224 For example, Georgia, economic viability (e.g., the prospects the 45Q tax credit, they would have to Minnesota, Missouri, Nevada, North and availability of long-term contractual complete all planning, including Carolina, South Carolina, and arrangements for sale of captured CO2, arranging all financing, preconstruction Wisconsin have coal-fired generation the cost of constructing a CO2 pipeline, permitting, and commence construction capacity but do not have oil reservoirs the availability of tax credits, etc.) of a within about 18 months (by December that have been identified as amenable CCS project is heavily dependent on 31, 2023) of the state plan submittal. for EOR. In addition, some of the states source-specific characteristics. The EPA considers that timetable to be with the largest amounts of coal-fired Accordingly, state plans may authorize impracticably short for most sources, generation capacity have no active EOR such projects for compliance with this considering the complexity of operations, including Illinois, Indiana, rule. implementation of CCS. In addition, the Kentucky, Ohio, Pennsylvania, tax credit is, in general, available only Tennessee, Virginia, and West Virginia. F. State Plan Development for the 12-year period beginning on the Even in states that are identified as 1. Establishing Standards of date the equipment is originally placed having potential oil and gas storage Performance in service. IRC section 45Q(a)(3)–(4). capacity, the amount of storage resource CAA sections 111(d)(1) and 111(a)(1) Thus, it would not be available to offset varies by state. In some states, the total collectively establish and define certain much of the capital costs of the CCS oil and gas storage resource is smaller roles and responsibilities for the EPA systems that are recovered over a 30- than the annual energy-related CO 2 and the states. As discussed in section year period.222 Further, like any federal emissions from coal, including Indiana III.B above, the EPA has the authority income tax credit, the 45Q tax credits do and Virginia.225 The limited geographic and responsibility to determine the not provide a benefit to a company that availability of EOR, and the consequent BSER. CAA section 111(d)(1) clearly does not owe federal income tax, and high costs of CCS for much of the coal contemplates that states will submit thus it may not benefit some coal-fired fleet, by itself means that CCS cannot be plans that establish standards of power plant owners. Accordingly, the considered to be available across the performance for designated facilities 45Q tax credits cannot be considered to existing coal fleet. (i.e., existing sources). offset the high costs of CCS for the The high costs of CCS inform the States have broad flexibility in setting industry as a whole. While nearby EOR Administrator’s determination that this standards of performance for designated opportunities are available for some technology is not BSER. Some facilities. However, there is a EGUs, they alone cannot offset the high commenters have suggested that CCS be fundamental obligation under CAA costs of CCS, as is evident from the treated as BSER for some facilities on a section 111(d) that standards of comments discussed above. unit-by-unit basis, but the EPA believes In addition, nearby EOR opportunities that this would be inconsistent with its performance reflect the degree of are not available for many EGUs, which, role under section 111(a)(1) to emission limitation achievable through as a result, would incur higher costs for determine as a general matter what is the application of the BSER, which constructing and operating pipelines to the BSER that has been adequately derives from the definition for purposes of section 111 of ‘‘standard of transport CO2 long distances. demonstrated, taking into account, Throughout the country, 29 states are among other factors, cost. To treat CCS performance’’ in those terms, with no identified as having oil reservoirs as BSER for a handful of facilities would distinction made between new-source amenable to EOR, of which only 12 result in those facilities becoming and existing-source standards. In states have active EOR operations.223 subject to high costs from CCS— establishing such standards of The vast majority of EOR is conducted potentially much higher than those performance, the statute expressly in oil reservoirs in the Permian Basin, imposed on other facilities for whom provides that states may consider a which extends through southwest Texas CCS is not treated as BSER. This source’s remaining useful life and other and southeast New Mexico. States potential disparate impact of costs is factors. Accordingly, based on both the where EOR is utilized include Alabama, inconsistent with the Administrator’s mandatory and discretionary aspects of Arkansas, Colorado, Louisiana, role in determining BSER and is another CAA section 111(d), a certain level of Michigan, Mississippi, Montana, New reason why the Administrator is process is required of state plans: Mexico, Oklahoma, Texas, Utah, and finalizing a determination that CCS is Namely, they must demonstrate the Wyoming, whereas coal-fired generation not BSER. application of the BSER in establishing Nevertheless, while many a standard of performance, and if the 221 By comparison, the implementation period for commenters argued that CCS should not state chooses, the consideration of the CPP began three years after the state plan be considered part of the BSER, they remaining useful life and other factors submittal. See 80 FR at 64669. supported its use as a potential in applying a standard of performance 222 The NETL Pulverized Coal Carbon Capture to a designated facility. The EPA Retrofit Database tool (April 2019) defaults to a compliance option for meeting an capital recovery factor based on 30 years. Capital individual unit’s standard of anticipates that states can recovery factors based on 10 and 20 years are also performance. The EPA agrees with this correspondingly establish standards of selectable. If shorter periods are selected, the assessment. Evaluation of the technical performance by performing two $/MWh for capital recovery would be higher. Table 10–12 of The Integrated Planning Model (version 6) feasibility (e.g., space considerations, sequential steps, or alternatively, as uses a 15-year capital recovery factor for further described later in this section, by environmental retrofits, https://www.epa.gov/sites/ 224 U.S. Energy Information Administration, performing these two steps production/files/2019-03/documents/chapter_ Electric Power Annual 2017, see https:// simultaneously. The two steps to 10.pdf. Recovering costs over a 12-year period, as www.eia.gov/electricity/annual/pdf/epa.pdf. establish standards of performance are: opposed to a 30-year period, increased the capital 225 The United States 2012 Carbon Utilization and recovery factor by 40 percent. Storage Atlas, Fourth Edition, U.S. Department of (1) Reflect the degree of emission 223 The United States 2012 Carbon Utilization and Energy, Office of Fossil Energy, National Energy limitation achievable through Storage Atlas, Fourth Edition, U.S. Department of Technology Laboratory (NETL) and U.S. Energy application of the BSER, and, if the state Energy, Office of Fossil Energy, National Energy Information Administration, Energy-Related Carbon chooses, (2) consider the remaining Technology Laboratory (NETL) and EPA Dioxide Emissions by State, 2005–2016, see https:// Greenhouse Gas Reporting Program, see https:// www.eia.gov/environment/emissions/state/analysis/ useful life and other source-specific www.epa.gov/ghgreporting. . factors.

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If a state chooses to develop standards application of the BSER in determining considering remaining useful life and of performance through a sequential each standard of performance, (i.e., other factors. (i.e., two step) process, the state would evaluation of applicability of each and In this section of the preamble, the as the first step apply the BSER to a all candidate technologies to each EPA addresses discrete aspects of the designated facility’s emission designated facility). For example, if a standard-setting process. It is intended performance (e.g., the average emission state determines that the designated to provide states clarity and direction on rate from the previous three years or a facility is able to implement only four each of these aspects to assist the states projected emission rate under specific of the six candidate technologies (due to in developing standards of performance. conditions such as load) and calculate the remaining useful life or other The EPA is not requiring a specific the resulting emission rate. In this step, factors), the state is required to method for states to develop standards states fulfill the obligation that demonstrate in its plan submission that of performance. standards of performance reflect the it in fact considered the two remaining a. Application of the BSER degree of emission limitation achievable candidate technologies in making this by evaluating the applicability of each determination. As described in other parts of this of the candidate technologies that For the two-step approach, a state section, while the EPA’s role is to comprise the BSER to a specific could do this by explaining in its plan determine the BSER, CAA section designated facility and calculating a submission that it considered the 111(d)(1) squarely places the corresponding standard of performance application of each of the candidate responsibility of establishing a standard based on the application of all candidate technologies in the first instance, but in of performance for an existing technologies that the state determines the second step the state determined designated facility on the state as part of are applicable to the specific designated that the two candidate technologies developing a state plan. This final rule facility. A state may determine the most should not be part of the methodology requires states to evaluate the appropriate methodology to calculate a to calculate the EGU’s standard of applicability of each of the candidate standard of performance (which for performance because of remaining technologies (HRI measures) that the purposes of this regulation will be in the useful life or other factors. The state EPA has determined constitute the form of an emission rate, as further should additionally provide a rationale BSER in establishing a standard of described in section III.F.1.c. of this for why and how it considered performance for each designated facility preamble) by applying the BSER to a remaining useful life and other factors within their jurisdiction. The BSER is a designated facility based on the to discount a particular candidate list of candidate technologies that are characteristics of the specific source technology from the calculation of a HRI measures, which states will (e.g., load assumptions and compliance standard of performance (e.g., by evaluate and apply to existing sources, timelines). For example, a state can start explaining that such technology has establishing a standard of performance with the average emission rate of a already been implemented by a that is appropriately tailored to each particular designated facility and adjust particular source). existing source.226 In establishing a it to reflect the application of each For a hybridized approach, when the standard of performance, a state may candidate technology and the associated state is applying the BSER and consider remaining useful life and other emission rate reduction. determining the emission reductions factors as appropriate based upon the As the second step, under this two- associated with the candidate specific characteristics of those units. In step, sequential process approach, after technologies for a specific designated general, the EPA envisions that the the state calculates the emission rate facility, it may be readily apparent that states would set standards based on that reflects application of the BSER, the two of the candidate technologies are considerations most appropriate to state may adjust that rate by considering not reasonable to install because, for individual sources or groups of sources the remaining useful life of the example, those technologies have (e.g., subcategories). These may include designated facility and other source- recently been updated at the unit, consideration of historical emission specific factors. It should be noted that independent of this final rule. This rates, effect of potential HRIs (informed the state is not required to take this hybridized approach, which blends by the information in the EPA’s second step and consider remaining application of the BSER and associated candidate technologies described earlier useful life and other factors. Rather, the stringency with consideration of in section III.E), or changes in operation state has the discretion to do so. A remaining useful life and other factors of the units, among other factors the discussion on how a state can consider in one step to calculate a standard of state believes are relevant. As such, remaining useful life and other factors, performance, may be appropriate states have considerable flexibility in if it so chooses, can be found in section provided that the state plan clearly determining standards of performance III.F.1.b. below. States also have the demonstrates the standard of for units, as contemplated by the discretion to apply a specific standard performance (expressed as a degree of express statutory text. of performance to a group of existing emission limitation) that would result States have discretion to apply the sources within their jurisdiction, or to from application of the BSER and same standard of performance to groups all existing sources within their provides a rationale for why and how of existing sources within their jurisdiction. remaining useful life and other factors jurisdiction, as long as they provide a As just described, the EPA believes it were considered to discount a particular sufficient explanation for this choice would be reasonable for states to follow candidate technology from the and a demonstration that this approach a sequential two-step process to calculation of a standard of will result in standards of performance establish standards of performance. performance. This is one illustrative achievable at the sources. But states also However, a state may develop its own way in which states can demonstrate, in process for calculating standards of establishing a standard of performance, 226 Because the candidate technologies that performance outside of this two-step that they have both fulfilled their comprise the BSER can, at least in some cases, be process, such as a hybridized approach obligation to apply the degree of applied in combination at an individual source, states should evaluate both individual candidate which blends the two sequential steps emission limitation achievable through technologies and combinations of candidate into one combined step, so long as the the BSER to each designated facility and technologies to appropriately establish standards of state plan submission demonstrates also properly invoked their discretion in performance.

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have discretion, expressly conferred on limitation achievable through the candidate technology to a particular them by Congress in CAA section application of the BSER (i.e., the ranges source. In any instance, the state plan 111(d), to take into account a source’s of improvements in Table 1) should be submission must identify the value of remaining useful life and other factors used by the states in establishing a HRI that has been calculated and the when establishing a standard of standard of performance; however, the calculation used to derive the value of performance of that source, and much of standard of performance calculated for a HRI, and explain both. The states will the discussion in this final rule relates specific designated facility may thus use the information provided by to the nature of that discretion and the ultimately reflect a degree of emission the EPA, but will be expected to factors that should influence states’ limitation achievable through conduct source-specific evaluations of exercise of it. As the EPA described in application of the BSER outside of the HRI potential, technical feasibility, and the proposal and as commenters have EPA’s ranges because of consideration applicability for each of the BSER verified, the fleet of coal-fired EGUs is of source-specific factors. If a state uses candidate technologies. After a state diverse and each EGU has been the sequential two-step process to applies the candidate technologies to a designed and engineered uniquely to fit establish a standard of performance, in designated facility (i.e., step one), it can the need at the time of construction. the first step the EPA expects that the consider the remaining useful life and Because each coal-fired steam boiler state will use the range of improvements other factors associated with the source subject to this rule has been designed, for each candidate technology (and and determine whether it is cost- maintained, utilized, and upgraded combinations thereof where technically reasonable to actually implement that uniquely, each designated facility has a feasible) to develop a standard of technology at the source (i.e., step two). unique set of circumstances with a set performance for a designated facility This is described in detail below in of source-specific factors governing its (the range of costs can be used in the section III.F.1.b. The approach to require states to use. The outgrowth of the abundance of second step which considers the tailor standards of performance for source-specific factors has led the EPA remaining useful life and other factors designated facilities is both consistent to determine that a tailored standard of as discussed in section III.F.1.b.). The with the framework of cooperative- performance (developed by states) that ranges of HRI in section III.E are typical federalism envisioned under CAA considers those factors can achieve of an EGU operating under normal section 111(d), and the new emission reductions in the fleet without conditions. While a source with typical implementing regulations for CAA making broad assumptions about the operating conditions (assuming no section 111(d).227 The new fleet that may not be applicable to a consideration of remaining useful life or implementing regulations at40 CFR particular unit. The source-specific other factors) will have a standard of circumstances at each EGU causes 60.21a(e) and 60.22a(b)(2) and (4) performance with an expected require emission guidelines to reflect, considerable variation in average improvement in performance within the emission rates across the fleet. If a single and contain information on, the degree ranges in Table 1, there may be source- of emission limitation achievable standard of performance (i.e., a single specific conditions that cause the actual degree of emission limitation resulting through the application of the BSER. By HRI of the applied candidate technology providing the BSER and the associated from a particular technology or fixed set to fall outside the range. For example, of technologies) were to be applied to level of stringency in the form of HRIs if a designated facility had installed a and associated range of heat rate the entire fleet, the result could be new boiler feed pump just prior to a either that a large portion of the fleet improvements, the EPA is thus meeting state’s evaluation of the designated applicable statutory and regulatory would not be required to achieve any facility, the application of that meaningful emission reductions, or a requirements and is giving states the candidate technology would yield necessary information and direction to large portion of the fleet would face negligible improvement in the heat rate overly stringent requirements. The goal establish standards of performance for and thus the value would fall outside existing sources that reflect the degree of these emission guidelines is not to the ranges provided by the EPA (i.e., burden or shut down coal-fired EGUs— of emission limitation achievable because the technology has already been through application of the BSER.228 which could compromise the stability of applied and the baseline emission rate the power sector and thus energy reflects that). As with the application of (1) Variable Emission Performance reliability to consumers, concerns all the candidate technologies, the state The Agency received comments that which the EPA expresses, informed by, plan submission must identify: (1) The there is considerable variation in among other factors, Congress’s value of HRI (i.e., the degree of emission emissions between designated facilities direction to take into account energy limitation achievable through within the industry, as well as requirements in determining BSER—as application of the BSER) for the considerable variation of emissions for coal-fired EGUs still have considerable standard of performance established for individual units based on the operating viability as part of the power sector. each designated facility; (2) the conditions. Commenters expressed When states apply the BSER’s calculation/methodology used to derive concern that the degree of emission candidate technologies to a designated such value; and (3) any relevant limitation achievable through the facility, the application of each explanation of the calculation that can application of the BSER is similar to the technology and the associated degree of help the EPA to assess the plan. In emission limitation achievable by such explaining the value of HRI that has 227 See 83 FR 44746. application will entail source-specific been calculated, if the value of the HRI 228 By providing the BSER and level of stringency determinations. For this reason, in Table falls within the range identified by the associated with the BSER, ACE meets the applicable EPA for a particular candidate requirements of the new implementing regulations 1, the EPA provided the degree of at 40 CFR part 60, subpart Ba, regarding the emission limitation achievable through technology, a state may note as such as contents of an emission guideline. An ‘‘emission application of the BSER in the form of part of its explanation. If a resulting guideline’’ is defined under 40 CFR 60.21a(e) as a ranges, which capture the reductions value of HRI falls outside the range ‘‘final guideline document’’ which must contain provided by the EPA, the state should certain items enumerated under 40 CFR 60.22a. The and costs that the EPA expects to preamble, regulatory text, and record for ACE approximate the outcome of the in its state plan submission explain why comprise the ‘‘final guideline document’’ application. The degree of emission this is the case based on application of referenced as the emission guideline.

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magnitude in the variation in the applying the BSER to individual the standard of performance must apply emission rate at a specific EGU due to designated facilities within the state, at all times. different operating conditions (e.g., the standards of performance would The Agency believes that these operating load of the EGU). Commenters account for unit-specific characteristics approaches to providing flexibility (and contend that because of this similarity, such as unit design, historical operation possible others not described here) in a designated facility could fall out of and maintenance. As further described establishing standards of performance compliance with its standard of in section III.F.1.b, states may also are reasonable and appropriate by performance if its operating conditions account for anticipated future design accounting for innate variable emission change despite the source’s having and/or operating plans—such as plans performance across EGUs and at specific installed/applied all of the candidate to operate as baseload or load following EGUs while also limiting this flexibility technologies. electricity generators. to instances in which underlying Commenters further stated that Second, standards of performance variable factors are evaluated and linked oftentimes the operation of a designated should reflect variability in emission to variable emission performance. facility is not in the control of the performance at an individual designated (2) Compliance Timelines owner/operator when it goes to load and facility due to changes in operating cycling, and because of that the conditions. Specifically, the agency Additionally, the new implementing emission rate varies based on believes it would be appropriate for regulations require that emission circumstances that are outside of the states to identify key factors that guidelines identify information such as designated facility’s control. The influence unit-level emission a timeline for compliance with standards of performance that reflect the commenters further state that they performance (e.g., load, maintenance 231 should not be held accountable to schedules, and weather) and to establish application of the BSER. However, standards that are not reflective of this emission standards that vary in given the source-specific nature of these emission guidelines and the reasonably lack of control and variability. The EPA accordance with those factors. In other anticipated variation between standards acknowledges commenters’ concerns words, states could establish standards established for sources within a state, about variability among designated of performance for an individual EGU the EPA believes it more appropriate facilities and variability of emission that vary (i.e., differ) as factors that a state establish tailored performance at an individual designated underlying emission performance vary. compliance deadlines for its sources facility, and believes the flexibilities For example, states could identify load based on the standard ultimately provided for states in establishing segments (ranges of EGU load operation) determined for each source. standards of performance, as described that reflect consistent emission Accordingly, the EPA is superseding in this section, are sufficient to performance within the segment and this aspect of 40 CFR 60.22a for accommodate these variables. In varying emission performance between purposes of ACE, as allowed under the establishing standards of performance, segments. States could then establish applicability provision in the new states can consider the two distinct standards of performance for an EGU implementing regulations under 60.20a types of variable emission that differ by load segment. 229 and allowing for states to include an performance (i.e., variation between Another possible option to account appropriate compliance deadline for different facilities and variation of for variable emissions is to set standards each designated facility based on its emissions at one facility at different of performance based on a standard set standard of performance determined as times) and states can tailor standards of of conditions. A state could establish a part of the state plan process. It is performance accordingly. baseline of performance of a unit at important that states consider First, standards of performance specific load and operational conditions compliance timelines that are consistent should acknowledge and reflect and then set a standard against those with the application of the BSER to variability across EGUs due to unit- conditions via the application of the ensure that the compliance timeline specific characteristics and factors, BSER. Compliance for the unit could be does not undermine the BSER including, but not limited to, boiler- demonstrated annually (or by another determination made by the EPA. For type, size, etc. By allowing states to increment of time if appropriate based most states, the EPA anticipates initial establish standards of performance for on the level of stringency of the compliance to be achieved by sources individual designated facilities (in standard of performance set for the unit) within twenty-four months of the state accordance with the statute’s text and at those same conditions. In the interim, plan submittal. If a state chooses to structure which provides that states in between the demonstration of include a compliance schedule (because their plans shall establish standards of compliance under standardized of source-specific factors) for a source performance for existing sources), the conditions, a state could allow for the that extends more than twenty-four EPA expects that standards of maintenance and demonstration of fully months from the submittal of the state performance will inherently account for operational candidate technologies to be plan, the plan must also include legally 230 unit-specific characteristics. By a method to demonstrate compliance as enforceable increments of progress for that source 232). The EPA does not 229 In this context, variable emission performance of performance for each designated facility within envision that most states will be using is a result of underlying variability in heat rate, as a group of similar designated facilities, but if a state emissions of CO2 from EGUs are proportional to the chooses to calculate a uniform rate for such a group increments of progress leading up to unit’s heat rate performance. of sources the plan submission should explain how initial compliance. However, as with the 230 Note that for administrative efficiency in the uniform rate reflects application of the BSER for consideration of other source-specific developing a state plan, a state may be able to all of the units in the group (e.g., because of similar factors, where a state does choose to calculate a uniform standard of performance that operating characteristics). Additionally, even if the reflects application of the BSER for a group of same emission rate is calculated for designated provide for a source to comply on a designated facilities rather than performing the facilities at different facilities that are included in longer timeframe than twenty-four same calculation multiple times for multiple such a group, such standard is applicable to each months and to employ legally individual sources if the group of sources has individual designated facility, and each source enforceable increments of progress similar characteristics such that application of would be required to meet that standard by BSER would be consistent between the EGUs. This implementing ACE requirements separately, final rule does not necessarily require a state to consistent with the state plan requirements 231 See 40 CFR 60.22a. provide a discrete calculation and separate standard described in section III.F.2 of this rule. 232 See 40 CFR 60.24a(d).

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along the way, the state should include maintained throughout a compliance section 111(d)(1) achieves this goal by in its state plan submission to the EPA period, the segmented nature of authorizing a state, in applying a an adequate justification for why that demonstrating compliance could mirror standard of performance, to take into approach is warranted. The level of the compliance schedule. For example, account a source’s remaining useful life stringency can be compromised if a a designated facility could have a and other source-specific factors. As compliance schedule does not monthly demonstration under such, the EPA is promulgating, as part adequately reflect the BSER standardized conditions that mirrors a of the new implementing regulations at determination. monthly compliance schedule. This is 40 CFR 60.20a-29a, a provision to Several commenters requested clarity one example to illustrate how a permit states to take into account on when standards of performance must standard of performance can align with remaining useful life, among other become effective (i.e., when must a compliance schedule. factors, in establishing a standard of designated facilities comply with their Another consideration for states in performance for a particular designated standards of performance) once a state establishing standards of performance is facility, consistent with CAA section plan has been submitted but not yet the emission averaging time (e.g., the 111(d)(1)(B). The new implementing approved by the EPA. The contents of amount of time that a designated facility regulations (also consistent with the a state plan submission, such as may average its emission rate). As previous implementing regulations) give standards of performance and related described above in section III.F.1.a.(1), meaning to CAA section 111(d)(1)(B)’s requirements, are not effective or EGUs may have considerably variable reference to ‘‘other factors’’ by enforceable under federal law until they emissions due to numerous operating identifying the following as a are approved by the EPA. However, factors. A method to account for nonexclusive list of several factors states state plan requirements must be fully seasonal variability is to average a may consider in establishing a standard adopted as a matter of state law, or designated facility’s emission rate over of performances: issued as a permit, order, or consent the course of multiple seasons. • Unreasonable cost of control agreement, before the plan is submitted resulting from plant age, location, or b. Consideration of Remaining Useful to the EPA (and therefore could be basic process design; Life and Other Factors enforceable as a matter of state law, • Physical impossibility of installing depending on when the state has chosen CAA section 111(d) requires, in part, necessary control equipment; or to make such requirements effective).233 that the EPA ‘‘shall permit the State in • Other factors specific to the facility The EPA anticipates that in determining applying a standard of performance to (or class of facilities) that make an appropriate compliance schedule any particular source under a plan application of a less stringent standard (and more specifically the initial submitted under [CAA section 111(d)] or final compliance time significantly compliance) for designated facilities, a to take into consideration, among other more reasonable. state will consider the anticipated factors, the remaining useful life of the Given that there are unique attributes timing of review of the state’s plan by existing source to which such standard and aspects of each designated facility, the EPA and what sources may need to applies.’’ Consistent with the there are important factors that do in the interim in order to assure requirements of this provision, the EPA influence decisions to invest in ultimate compliance with their is permitting states to consider technologies to meet a potential standards of performance while EPA is remaining useful life and other factors standard of performance. These include in the process of reviewing the plan. in establishing a standard of factors not enumerated in the list States also have discretion in performance for a particular source in provided above, including timing establishing a compliance schedule for this final rule. States may do this in considerations like expected life of the designated facilities, but the Agency several ways. If a state is following the source, payback period for investments, urges states to use caution as to not sequential two-step process, the state the timing of regulatory requirements, undermine the BSER by the determined would first apply all of the candidate and other source-specific criteria. The schedules. Most programs under CAA technologies to a designated facility to state may find that there are space or section 111 do not have compliance derive a standard of performance with other physical barriers to implementing timelines greater than a year and the consideration to the EGU’s historical or certain HRIs at specific units. Agency believes that is a good indicator projected performance, as previously Alternatively, the state may find that for states to take into consideration described in section III.F.1.a. In the some HRI options are either not determining compliances schedules. second step of this process, the state applicable or have already been Much of how a compliance schedule is would consider the ‘‘remaining useful implemented at certain units. The EPA structured can be based on how the life and other factors’’ for the EGU and understands that many of these ‘‘other standard of performance is structured. develop a standard of performance factors’’ that can affect the application In section III.F.1.a.(1) there is a accordingly. It should be noted that the of the BSER candidate technologies discussion about how a state might consideration of remaining useful life distill down to a consideration of cost. account for variable emissions. One of and other factors is a discretionary step Applying a specific candidate the options is to set a standard of for states. If a state were to establish a technology at a designated facility can performance under standardized standard of performance for a be a unit-by-unit determination that conditions to take into account many of designated facility based solely on the weighs the value of both the cost of the factors that can lead to variable application of the BSER, it would be installation and the CO2 reductions. emissions from a designated facility. reasonable to do so and not precluded The EPA received comment on the The standardized conditions (e.g., load, under the statute. ACE proposal that the EPA should ambient temperature, humidity etc.) that The CAA explicitly provided under provide more information and guidance apply to the standard of performance CAA section 111(d)(1) that states could, for what could be considered ‘‘other must also be met when there is a under appropriate circumstances, factors’’ in addition to the compliance demonstration. Because establish standards of performance that considerations of the remaining useful these standardized conditions are not are less stringent than the standard that life. In addition, commenters also would result from a direct application of requested more information on the 233 40 CFR 60.23a, 60.27a(g)(2)(iii). the BSER identified by the EPA. CAA remaining useful life and other source-

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specific factors that could be considered states. If a state considers the remaining or more of the technologies. While states in developing a standard of useful life and/or other factors in must apply the BSER and the degree of performance. The EPA acknowledges determining a standard of performance, emission limitation achievable through that there are a host of things that could the state is required to describe, justify, such application in calculating a be considered ‘‘other factors’’ by states and quantify how the considerations standard of performance, states may also that can be used to develop a standard were made in its plan. Because these consider the mitigating effects on the of performance. While the EPA cannot considerations are discretionary and emission reductions that would result identify every set of circumstances and source-specific, the burden is on the from the installation of a particular factors that a state could consider, the state in its plan to demonstrate and candidate technology, and may as a EPA agrees with the commenters that it justify how they were taken into result of this consideration determine would be helpful for states if the EPA account. that installing that particular candidate were to provide a non-exhaustive set of A state might consider the remaining technology at a particular source is not qualitative examples that states could useful life of a designated facility with reasonable. This consideration is consider in developing standards of a retirement date in the near future by authorized as one of the ‘‘other factors’’ performance as described below. The a number of ways in the standard setting that states may consider in establishing EPA will evaluate each standard of process. One way that a state may take a standard of performance under CAA performance and the factors that were into account this circumstance is in section 111(d)(1) and the new considered in the development of the applying the BSER (either through the implementing regulations under 40 CFR standard of performance on a case by sequential, two-step process or through 60.24a(e). case basis. The state should include all some other method that reflects A prime example of an ‘‘other factor’’ of the factors and how the factors were application of the BSER), establish a is ruling out the reapplication of a applied for each standard of standard that ultimately only applies candidate technology. The EPA performance in the state plan. The EPA the less costly BSER technologies in the anticipates this to be a part of many received many notable comments that development of the standard of state plans. In this scenario, a states would like more direction and performance that the state establishes designated facility recently applied one assistance in developing standards of for the particular designated facility. of the candidate technologies prior to performance. The examples are The shorter life of the designated facility the time ACE becomes applicable. To intended to help provide this assistance, will generally increase the cost of require that designated facility to update but the EPA also understands that, control because the time to amortize that candidate technology again, as a because there are so many capital costs is less. Another outcome of result of ACE, would not be reasonable considerations for each source, states a state’s evaluation of a designated because the costs will be significant might have further questions while facility’s remaining useful life may lead with marginal, if any, heat rate developing plans. States are encouraged to the state setting a ‘‘business as usual’’ improvement. As described in section III.F.1.c., to reach out to the Agency during the standard. This could be an appropriate states are obligated to set rate-based development of plans for further outcome where the remaining useful life standards of performance. These will assistance. of the designated facility is so short that imposing any costs on the EGU is generally be in the form of the mass of As noted above, the consideration of unreasonable. Because a state plan must carbon dioxide emitted per unit of the remaining useful life and other establish standards of performance for energy (for example pounds of CO2 per factors most often is a reflection of cost. ‘‘any’’ designated facility under CAA megawatt-hour or lb/MWh). The When the EPA determines the BSER for section 111(d), the standard applied to emission rate can be expressed as either a source category, the EPA typically this designated facility would reflect a net output-based standard or as a gross considers factors such as cost relative to ‘‘business as usual’’ and require the unit output-based standard, and states have assumptions about a typical unit. to perform at its current level of the discretion to set standards of Because the costs evaluated for the efficiency during the remainder of its performance in either form. The BSER determination are relative to a useful life. Under all of these examples difference between net and gross typical unit, the source-specific and under any other circumstance in generation is the electricity used at a conditions of any particular existing which a state considers remaining plant to operate auxiliary equipment designated facility that a state will useful life or other factors in such as fans, pumps, motors, and evaluate in developing its plan under establishing a standard of performance, pollution control devices. The gross CAA section 111(d) are not inherently the state must describe in its state plan generation is the total energy produced, considered. A state’s consideration of submission such consideration and while the net generation is the total the remaining useful life and other ensure it has established a standard for energy produced minus the energy factors will reflect the costs associated every designated facility within the needed to operate the auxiliary with the source-specific conditions. As state, even one with an anticipated near- equipment. part of the BSER determination, the EPA term retirement date. Most of the candidate technologies, has provided a range of costs associated Another consideration for a state in when applied, affect the gross with each candidate technology (see setting standards of performance with generation efficiency. However, some Table 1). These costs are provided to consideration to the remaining useful candidate technologies, namely serve as an indicator for states to life and other factors is how the improved or new variable frequency determine whether it is cost-reasonable different candidate technologies interact drives and improved or new boiler feed for the candidate technology to be with one another and how they interact pumps, improve the net generation by installed. These cost ranges are certainly with the current system at a designated reducing the auxiliary power not intended to be presumptive (i.e., the facility. Commenters have expressed, requirement. Because improvements in ranges are not an accurate and the EPA agrees, that the application the efficiency of these devices represent representation for each designated of efficiency upgrades at EGUs are not opportunities to reduce carbon intensity facility and should not be used without necessarily additive. Installing HRI at existing affected EGUs that would not a justified analysis by the state), but technologies in parallel with one be captured in measurements of rather are provided as guide-posts to another may mitigate the effects of one emissions per gross MWh, states may

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want to consider standards expressed in allowable emission rate as the standard upgrades to equipment that reduce the terms of net generation. If a state of performance in this action. Also, by auxiliary power demand. The chooses to set standards in the form of the Agency prescribing that only a consideration of this factor is left to the gross energy output, it will be up to the singular form of standard (i.e., an discretion of the state. state to determine and demonstrate how allowable emission rate) is acceptable, it 2. Compliance Mechanisms to account for emission reductions that will promote continuity among states are achieved through measures that only and power companies, prevent Just as states have broad flexibility affect the net energy output. ambiguity, and promote simplicity and and discretion in setting standards of One of the more significant changes ease of administration and avoid undue performance for designated facilities, between the ACE proposal and this burden on the states and regulated sources have flexibility in how they action is that the EPA is not finalizing parties. comply with those standards. To the the NSR reforms that it proposed in the The EPA received considerable extent that a state develops a standard same document that it proposed ACE. comment that it should allow mass- of performance based on the application While the EPA intends to take final based standards of performance. While of the BSER for a designated facility action on the NSR reform at a later time the EPA understands the appeal of a within its jurisdiction, sources should in a separate action, the consequences of mass-based standard for some be free to meet that standard of that action are no longer considered in stakeholders, this form of standard is performance using either BSER parallel with ACE. Two of the candidate not compatible with the EPA’s BSER technologies or certain non-BSER technologies, blade path upgrades and a determination. In fact, the EPA believes technologies or strategies. Thus, a redesigned/replaced economizer, were that a mass-based standard would designated facility may have broad proposed as part of the BSER undermine the EPA’s BSER. If discretion in meeting its standard of considering that NSR would not be a designated facilities were to have mass- performance within the requirements of barrier for installation. Under ACE as based standards, it is likely that many a state’s plan. For example, there are finalized without parallel NSR reforms, would meet their compliance obligation technologies, methods, and/or fuels that the EPA anticipates that states may take by reduced utilization. A standard of can be adopted at the designated facility into account costs associated with NSR performance that incentivizes reduced to allow the source to comply with its as a source-specific factor in considering utilization and possibly retirements standard of performance that were not whether these two technologies are does not reflect application of the BSER. determined to be the BSER, but which reasonable. While the EPA believes that See section II.B above for a discussion may be applicable and prudent for states are more likely to determine that of reduced utilization and CAA section specific units to use to meet their blade path upgrades and redesigned/ 111. compliance obligations. Examples of replaced economizers are not as Additionally, given that the EPA has non-BSER technologies and fuels reasonable as anticipated at proposal the obligation under CAA section include HRI technologies that were not when these were proposed as elements 111(d)(2) to determine whether state included as candidate technologies, of BSER alongside proposed NSR plans are ‘‘satisfactory,’’ certain CCS, and natural gas co-firing. In reforms, as discussed above, the EPA is programmatic bounds are appropriate to keeping with past programs that still finalizing a determination that facilitate the state’s submission of, and regulated designated facilities using a these candidate technologies are EPA’s review of, the approvability of standard of performance, the EPA takes elements of the BSER because it still state plans. Having a uniform type of no position regarding whether there expects these technologies to be standard of performance will help may be other methods or approaches to generally applicable across the fleet of streamline the states’ development of meeting such a standard, since there are existing EGUs, and because the costs of their plans, as well as the EPA’s review likely various approaches to meeting the the technologies themselves are of those plans as there will be fewer standard of performance that the EPA is generally economical and reasonable. In variables to consider in the either unable to include as part of the any case, under ACE as finalized, states development of each standard of BSER, or is unable to predict. The EPA are required to evaluate the applicability performance. While the Agency has is, however, excluding some measures of all candidate technologies (i.e., the experience implementing mass-based from use as compliance measures: BSER) to a particular existing source programs, the uncertainty associated averaging and trading and bio-mass when establishing a standard of with projecting a level of generation for cofiring. These measures do not meet performance for that source. designated facilities is unnecessary the criteria for compliance measures. when there is a more compatible format, Those criteria, which are designed to c. Forms of Standards of Performance i.e., a rate-based standard. assure that compliance measures While the EPA is allowing broad The EPA also notes that it is not actually reduce the source’s emission flexibility for states in establishing establishing a preference or requirement rate, are two-fold: (1) The compliance standards of performance for designated for whether a rate-based standard of measures must be capable of being facilities, the EPA is finalizing a performance be based in gross or net applied to and at the source, and (2) requirement that all standards of heat rate. The EPA acknowledges that they must be measurable at the source performance be in the form of an there are ramifications of applying the using data, emissions monitoring allowable emission rate (i.e., rate-based BSER to establish a standard of equipment or other methods to standard in, for example, lb CO2/MWh- performance with the consideration of demonstrate compliance, such that they gross). As described in the proposal an type of heat rate used. This may be can be easily monitored, reported, and allowable emission rate is the form that particularly important when verified at a unit. corresponds to the EPA’s BSER considering the effects of part load With respect to the first criterion, the determination for these emission operations (i.e., net heat rate would EPA believes that both legal and guidelines. When HRIs are made at an include inefficiencies of the air quality practical concerns weigh against the EGU, by definition, the CO2 emission control system at a part load whereas inclusion of measures that cannot rate will decrease as described above in gross heat rate would not). This will qualify as a ‘‘system of emission section III.E. There is a natural also be important in recognizing the reduction.’’ Allowing those measures correlation between the BSER and an improved efficiency obtained from would be inconsistent with the EPA’s

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interpretation of the BSER as limited to submit to meet the requirements of final finalization of ACE is any fossil fuel- measures that apply at and to an emission guidelines.236 Specifically, the fired electric utility steam generating individual source and reduce emissions EPA: (1) Proposed to allow states to unit (i.e., utility boilers) that is not an from that source. Because state plans incorporate, as part of their plan, integrated gasification combined cycle must establish standards of emissions averaging among EGUs across (IGCC) unit (i.e., utility boilers, but not performance—which by definition 234 a single plant; and (2) solicited IGCC units) that was in operation or had ‘‘reflect[ ] . . . the application of the comment on whether CAA section commenced construction as of [January [BSER]’’—implementation and 111(d) should be read not to authorize 8, 2014],’’ and ‘‘serves a generator enforcement of such standards should states to include trading and averaging capable of selling greater than 25 MW to correspond with the approach used to between sources.237 a utility power distribution system and set the standard in the first place. The EPA received numerous has a base load rating greater than 260 Applying an implementation approach comments on the topic of averaging and GJ/h (250 MMBtu/h) heat input of fossil that differs from standard-setting would trading for compliance with ACE. With fuel (either alone or in combination result in asymmetrical regulation. respect to averaging across designated with any other fuel).’’ 240 The proposal Specifically, a state’s implementation facilities that are located at the same then identified HRI measures as the measures would result in a more or less plant—including, but not limited to, BSER for such units.241 This action stringent standard implemented at an EGUs that are served by a common finalizes the Agency’s determination EGU than could otherwise be derived stack—some commenters disapproved that HRI measures are the BSER for from application of the BSER. of this flexibility while others supported designated facilities. See sections III.C & There are certainly methods that the ability to implement ACE via III.E. affected EGUs could use to meet averaging in state plans. On the topic of Although the D.C. Circuit has compliance obligations that are not the averaging and trading between recognized that the EPA may have BSER, but these methods still fit the two designated facilities located at different statutory authority under CAA section criteria: They can be applied to and at plants, the Agency received mixed 111 to allow plant-wide emissions the source and can be measured at the support and opposition. Some averaging,242 the Agency’s source using data, emissions monitoring commenters suggested that the EPA’s determination that individual EGUs are equipment or other methods to proposed prohibition on averaging and subject to regulation under ACE demonstrate compliance, such that they trading between designated facilities at precludes the Agency from attempting can be monitored, reported, and verified different plants was necessary given the to change the basic unit from an EGU to at a unit. Such examples include CCS Agency’s construction of the BSER as a combination of EGUs for purposes of and natural gas cofiring. limited to systems that could be applied ACE implementation.243 Commenters also requested that to and at the ‘‘source’’ itself. Other In ASARCO, the EPA promulgated reduced utilization be an available commenters suggested that averaging regulations re-defining ‘‘stationary compliance mechanism. While a and trading for compliance with ACE is source’’ as ‘‘any . . . combination of designated facility reducing its not precluded under CAA section . . . facilities.’’ 244 By treating a utilization would certainly reduce its 111(d). Commenters also suggested that ‘‘combination of facilities’’ as a single mass of CO2 emissions, it would likely the statutory cross-reference under CAA source, the EPA intended to adopt a not lead to an improved emission rate. section 111(d)(1) to CAA section 110 ‘‘bubble concept,’’ which would allow a As noted above in section III.F.1., a state suggests that trading could be used for facility to ‘‘avoid complying with the can certainly take into account a implementation under ACE. Several applicable NSPS so long as emission designated facility’s projected decreased commenters provided examples of prior decreases from other facilities within utilization in setting a standard of CAA section 111(d) regulations in the same source cancel out the increases performance, but it cannot make it the which the agency allowed trading for from the affected facility.’’ 245 The Court means of meeting compliance implementation (e.g., CAMR). concluded, however, that the Agency obligations because the degree of In this final action, the EPA ‘‘has no authority to rewrite the statute emission limitation achievable through determines that: Neither (1) averaging in this fashion.’’ 246 In a subsequent the application of the BSER must still be across designated facilities located at a case, the D.C. Circuit recognized that the reflected in setting the standard of single plant; nor (2) averaging or trading EPA has ‘‘broad discretion to define the performance. See section II.B above for between designated facilities located at statutory terms for ‘source,’ [i.e., a discussion of reduced utilization different plants are permissible building, structure, facility or under CAA section 111.235 measures for a state to employ in installation], so long as guided by a establishing standards of performance reasonable application of the a. Averaging and Trading for existing sources or for sources to statute.’’ 247 This section discusses the question of employ to meet those standards. CAA Following these two decisions, the whether averaging and trading are section 111(d) authorizes states to EPA adopted a new regulation defining permissible means for sources to establish standards of performance for ‘‘building, structure, facility, or comply with ACE. For a discussion of ‘‘any existing source,’’ which the CAA installation’’ for nonattainment-area averaging EGU-emissions over a defines as ‘‘any stationary source other compliance period, see section than a new source.’’ 238 ‘‘Stationary 240 83 FR 44754. III.F.1.a.(2). In the proposal, the EPA source,’’ in turn, means ‘‘any building, 241 Id. at 44755. solicited comment on whether CAA structure, facility, or installation which 242 See U.S. Sugar v. EPA, 830 F.3d 579, 627 n.18 section 111(d) authorizes states to emits or may emit any air pollutant.’’ 239 (D.C. Cir. 2016) (pointing to the definition of In the ACE proposal, the EPA explained ‘‘stationary source’’). include averaging or trading between 243 See, e.g., ASARCO v. EPA, 578 F.2d 319, 327 existing sources in the plans they that an EGU ‘‘subject to regulation upon (D.C. Cir. 1978). 244 Id. at 326 (emphasis added). 234 See CAA section 111(a)(1) 236 See 83 FR 44767–768. 245 Id. 235 For a discussion of reduced utilization in 237 Id. 246 Id. at 327. other CAA contexts, please see ACE RTC Chapter 238 42 U.S.C. 7411(a)(6). 247 Alabama Power Co. v. Costle, 636 F.2d 323, 1, response to comment 76. 239 Id. at section 7411(a)(3). 396 (D.C. Cir. 1979).

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permitting under the NSR program as must establish standards of Regarding commenters’ assertions that ‘‘all of the pollutant-emitting activities performance—which by definition the cross-reference in CAA section which belong to the same industrial ‘‘reflects . . . the application of the best 111(d) to CAA section 110 authorizes grouping, are located on one or more system of emission reduction’’— averaging or trading for implementation, contiguous or adjacent properties, and implementation and enforcement of the Agency disagrees. The cross- are under the control of the same person such standards should be based on reference to CAA section 110 indicates (or persons under common control) improving the emissions performance of that ‘‘[t]he Administrator shall prescribe except the activities of any vessel.’’ 248 sources to which a standard of regulations which shall establish a That rulemaking lead to the Supreme performance applies. Additionally, procedure similar to that provided by Court’s decision in Chevron v. NRDC, averaging or trading would effectively CAA section 110 of this title under 467 U.S. 837 (1984). In Chevron, the allow a state to establish standards of which each State shall submit to the Court recognized that ‘‘it is certainly no performance that do not reflect Administrator a plan . . . .’’ (emphasis affront to common English usage to take application of the BSER. For example, added). The Agency’s interpretation of a reference to a major facility or a major under a trading program, a single source this cross-reference is that it focuses on source to connote an entire plant as could potentially shut down or reduce the procedure under which states shall opposed to its constituent parts.’’ 249 utilization to such an extent that its submit plans to the EPA. It does not Here, the EPA does not need to reduced or eliminated operation imply anything affirmative or negative determine whether it would have been generates adequate compliance about implementation mechanisms reasonable to interpret ‘‘building, instruments for a state’s remaining available under CAA section 111(d). In structure, facility, or installation’’ as an sources to meet their standards of the absence of definitive instruction entire plant for purposes of CAA section performance without any emission under this CAA provision, the Agency 111 (thus, encompassing all EGUs reductions from any other source. This uses its best judgment to conclude that located at a single plant). Because ACE compliance strategy would undermine the meaning and scope of the BSER in identifies individual EGUs as the the EPA’s determination of the BSER in this rule preclude the use of averaging designated facility,250 state plans cannot this rule, which the EPA has determined or trading for covered EGUs at different accommodate any ‘‘bubbling’’ of EGUs as heat rate improvements. plants in state plans. Commenters also for compliance with these emission In light of these concerns, as asserted that the EPA has promulgated guidelines. proposed, the EPA concludes that regulations under CAA section 111(d) In addition, as proposed, the EPA is neither averaging nor trading between that included trading in the past, such precluding averaging or trading between EGUs at different plants can be used in as CAMR. As an initial matter, CAMR designated facilities located at different state plans for ACE implementation. was vacated by the D.C. Circuit and plants for the following reasons. Regarding commenters’ assertions that never implemented. Nonetheless, the The EPA believes that averaging or the statutory text of CAA section 111(d) Agency notes that the CAMR included trading across designated facilities (or does not preclude averaging or trading, trading both in the establishment of the between designated facilities and other the Agency finds that the statutory text BSER and as an available power plants, e.g., wind turbines) is of CAA section 111(d) does not require implementation mechanism. In the ACE inconsistent with CAA section 111 the EPA to allow averaging or trading as rule, by contrast, trading was not because those options would not a measure for states in establishing factored into the determination of the necessarily require any emission existing-source standards of BSER and so should not be authorized performance or allow for sources to reductions from designated facilities for implementation. adopt as a compliance measure, and the Moreover, it is not clear that trading and may not actually reflect application interpretation of the limits on the scope would qualify as a ‘‘system of emission of the BSER.251 Because state plans of BSER under CAA section 111(a)(1) set reduction’’ that can be applied to and at 248 46 FR 50766. forth in section II above as a basis for an individual source and would lead to 249 467 U.S. at 860. the repeal of the CPP suggests that those emission reductions from that source. 250 Fossil fuel-fired steam generators (i.e., EGUs) measures are not permissible, as they Indeed, the nature of trading as a were among the first source categories listed under are not applied to a source. compliance mechanism is such that CAA section 111. See 36 FR 5931. Since then, the some sources would not need to apply Agency has promulgated multiple rulemakings EPA has implemented several trading programs any pollution control techniques at all specifically regulating EGUs. See e.g., 40 CFR part under the so-called Good Neighbor provision at in order to comply with a cap-and-trade 60, subparts D, Da, TTTT, and UUUU. In any case, CAA section 110(a)(2)(D)(i)(I). See Finding of the decision to identify EGUs as the regulated Significant Contribution and Rulemaking for scheme. A compliance mechanism source is made under CAA section 111(b); that is Certain States in the Ozone Transport Assessment under which multiple sources can because regulations under CAA section 111(d) are Group Region for Purposes of Reducing Regional comply not by any measures applied to authorized for sources ‘‘to which a standard of Transport of Ozone (also known as the NOX SIP those sources individually, but instead performance . . . would apply if such existing Call), 63 FR 57356 (October 27, 1998); Clean Air source were a new source.’’ In this case, new source Interstate Rule (CAIR) Final Rule, 70 FR 25162 (May by obtaining credits generated by performance standards have been established for 12, 2005); Cross State Air Pollution Rule (CSAPR) measures adopted at another source, is certain ‘‘new, modified, and reconstructed’’ EGUs. Final Rule, 76 FR 48208 (August 8, 2011); CSAPR not consistent with the interpretation of 80 FR 64510. While the EPA proposed to revisit Update Final Rule, 81 FR 74504 (October 26, 2016). the limits on the scope of BSER adopted several portions of those standards, see 83 FR Section 110(a)(2)(A), which is applicable to the 65424, the Agency did not propose to revise the requirements of the Good Neighbor provision, in section II above. Accordingly, trading applicability requirements for them, id. at 65429. explicitly authorizes the use of marketable permits is not permissible under CAA section Accordingly, individual EGUs continue to be the and auctions of emission rights. Additionally, the 111. appropriate regulatory target for purposes of ACE Good Neighbor provision prohibits emissions (and not, for example, multiple EGUs that may be activity in certain ‘‘amounts’’ with respect to the b. Biomass Co-Firing co-located at a single power plant). NAAQS. The affirmative requirement under this 251 The EPA’s interpretation of CAA section 111 provision to reduce certain emissions means it is The ACE proposal solicited comment on this point has changed since the promulgation appropriate to implement measures which will on the inclusion of forest-derived and of the since-vacated CAMR and does not necessarily result in the required emission reductions. The EPA non-forest biomass as non-BSER extend to other CAA programs and provisions, has done so previously by implementing trading which can be distinguishable based on the programs to reduce ozone and particulate matter, compliance options for affected units to applicable statutory and regulatory requirements the regional-scale nature of which can be effectively meet state plan standards. The proposal and programmatic circumstances. For example, the regulated under a trading program. also solicited comment on what value to

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attribute to biogenic CO2 associated unassociated with a designated facility), identify the approach by which states with non-forest biomass, if included. including consideration of terrestrial evaluate all of the HRIs finalized in this The EPA received a range of comments carbon effects during the biomass fuel action, both alone and in combination both supporting and opposing the use of growth. Therefore, biomass fuels do not with each other where technically forest-derived and non-forest biomass meet the compliance obligations and are feasible. To the extent that HRIs are not feedstocks for compliance under this not eligible for compliance under this feasible to apply at a particular EGU, rule. Additionally, the EPA received a rule. states must provide a rationale (and range of comments regarding the supporting data or metrics where relied 3. Submission of State Plans valuation of CO2 emissions from upon) for why the calculation would be biomass combustion. CAA section 111(d)(1) provides that invalid or inappropriate. Numerous commenters supported the states shall submit to the EPA plans that Second, state plans must identify inclusion of biomass as a compliance establish standards of performance for EGUs within their borders that meet the measure. Some reiterated the EPA’s existing sources within their applicability requirements and are 2018 policy statement regarding jurisdiction and provide for thereby considered a designated facility biogenic CO2 emissions, which laid out implementation and enforcement of under ACE. Plans must also include the Agency’s intent to treat biogenic CO2 such standards. Under CAA section emissions and operational data relied emissions from forest biomass from 111(d)(2), the EPA has the obligation to upon to apply BSER and determine managed forests as carbon neutral in determine whether such plans are standards of performance. These data forthcoming Agency actions. ‘‘satisfactory.’’ In light of the statutory must include, at a minimum, an Specifically, these commenters stated text, state plans implementing ACE inventory of CO2 emissions data and that the nature of biomass and its role should include detailed information EGU operational data (e.g., heat input) in the natural carbon cycle (i.e., carbon related to two key aspects of for designated EGUs during the most is sequestered during biomass growth implementation: Establishing standards recent calendar year for which data is that occurs offsite) makes biomass a of performance for covered EGUs and available at the time of state plan carbon-neutral fuel, and therefore that providing measures that implement and development and/or submission. State biomass should be eligible as a enforce such standards. plans must also include any future compliance option under this rule. Generally, the plans submitted by projections data relied upon to establish Commenters opposing the inclusion of states must adequately document and standards of performance, including biomass for compliance asserted that demonstrate the process and underlying future operational assumptions. To the biomass combustion does not reduce data used to establish standards of extent that state plans consider an stack GHGs emissions, as it emits more performance under ACE. Providing such existing source’s remaining useful life in emissions per Btu than fossil fuels, and documentation is required so that the establishing a standard of performance therefore should not be eligible for EPA can adequately and appropriately for that source, the state plan must compliance. Some comments noted that review the plan to determine whether it specify the exact date by which the the scientific rationale underlying the is satisfactory; the EPA’s authority to source’s remaining useful life will be use of biomass as a potential GHG promulgate a federal plan is triggered in zero. In other words, the state must reduction measure at stationary sources ‘‘cases where the State fails to submit a establish a standard of performance that 252 relies primarily on terrestrial CO2 satisfactory plan ....’’ For specifies the designated facility will sequestration occurring due to activities example, states must include data and retire by a future date certain (i.e., the offsite (i.e., activities outside of and documentation sufficient for the EPA to date by which the EGU will no longer largely not under the control of a understand and replicate the state’s supply electricity to the grid). It is designated facility). calculations in applying BSER to important to note that (as with all The construct of this final ACE rule establish standards of performance. aspects of the state plan) the standard of necessitates that measures taken to meet Plans must also adequately document performance and associated retirement compliance obligations for a source and demonstrate the methods employed date will be federally enforceable upon actually reduce its emission rate in that: to implement and enforce the standards approval by the EPA. In the event a (1) They can be applied to the source of performance such that EPA can source’s circumstances change so that itself; and (2) they are measurable at the review and identify measures that this retirement date is no longer source of emissions using data, assure transparent and verifiable feasible, states generally have the emissions monitoring equipment or implementation. Additionally, state authority and ability to revise their state other methods to demonstrate plan submissions must, unless plans. Such plan revisions must be compliance, such that they can be easily otherwise provided in a particular adopted by the state and submitted to monitored, reported, and verified at a emissions guideline rule, adhere to the the EPA pursuant to the requirements of unit (see section III.F.2). While the firing components of the new implementing 40 CFR 60.28a. of biomass occurs at a designated regulations described in section IV. The Third, state plans should submit facility, biomass firing in and of itself following paragraphs discuss several detailed documentation demonstrating does not reduce emissions of CO2 components that states are required to in detail the application of the state’s emitted from that source. Specifically, include in their state plans as required methodology to the state’s data. In other when measuring stack emissions, under these final emission guidelines. words, states should include the biomass emits more CO2 per Btu than First, state plans must detail the calculations relied upon when applying fossil fuels, thereby increasing the CO2 approach or methods used by the state the BSER to establish standards of emission rate at the source. to apply the BSER and establish performance. States should also include Accordingly, recognition of any standards of performance. The state detailed documentation demonstrating potential CO2 emissions reductions should include enough detail for the the relied upon compliance associated with biomass firing at a EPA to be able to reproduce the state’s mechanisms, consistent with section designated facility relies on accounting methods and calculations. The III.F.2. for activities not applied at and largely methodology submitted should clearly Regarding establishing standards of not under the control of that source (i.e., performance and ensuring verifiable activities outside of and largely 252 CAA section 111(d)(2)(A). implementation for EGUs with complex

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stack configurations, states should required for designated facilities. The requirements as a matter of state law, include approaches (e.g., formulas) that new implementing regulations are but also noted that nothing in section appropriately assign emissions and described in detail in section IV. In 116 provides for such more-stringent generation to individual EGUs. For section 40 CFR 60.5740a there is a requirements to become federally example, if two EGUs share a common complete description and list of what a enforceable.254 Some commenters assert stack, the state should provide a state plan must include. that it is not within the EPA’s authority methodology for disaggregating under the CAA to approve such more- monitoring data to the individually a. Electronic Submission of State Plans stringent requirements as part of the covered EGUs. Another example for The EPA will, in the near future, federally enforceable state plan, and the states to consider when appropriately provide states with an electronic means EPA should instead direct states to assigning emissions and setting of submitting plans. While the EPA make such requirements exclusively a standards of performance is proposed the use of the SPeCS software matter of state law and enforceability. apportioning HRI that affect and which has been used by the Agency for Other commenters assert that the improve the performance of multiple SIP submittals, the Agency is still Supreme Court in Union Electric Co. v. EGUs at a plant (e.g., apportioning developing the software to be used for EPA, 427 U.S. 246, (1976), precluded a improvement credited to installed ACE submittals. The EPA recommends reading of section 116 that would variable speed drives that affect that states submit state plans functionally require two separate sets of multiple designated facilities at a plant). electronically as it will provide a more requirements, one at the stricter state As part of ensuring that regulatory structured process and provide more level and one at the federally approved obligations appropriately meet statutory timely feedback to the submitting state. level. requirements such as enforceability, the The Agency also anticipates that many In response to the commenters who EPA has historically and consistently states will choose to submit plans contend the EPA does not have the required that obligations placed on electronically as states have a level of authority to approve more stringent sources be quantifiable, permanent, familiarity with EPA software, such as state plans, the EPA believes that these verifiable, and enforceable. The EPA is SPeCS. The EPA envisions the comments have merit. However, the similarly requiring that standards of electronic submittal system as a user- EPA does not think it is appropriate at performance placed on designated friendly, web-based system that enables this point to predetermine the outcome facilities as part of a state plan to state air agencies to officially submit of its action on a state plan submission implement ACE be quantifiable, state plans and associated information in this regard without going through permanent, verifiable, and enforceable. electronically for review. Electronic notice-and-comment rulemaking with A state plan implementing ACE should submittal is the EPA’s preferred method regard to the approval or disapproval of include information adequate to support for receiving state plan submissions that submission.255 a determination by the EPA that the under ACE. However, if a state prefers plan meets these goals. to submit its state plan outside of this 254 83 FR 44767 n.37. Additionally, the EPA is finalizing a forthcoming system, the state must 255 In the CPP, the EPA took the position that determination that states must include confer with its EPA Regional Office because ‘‘the EPA’s action on a 111(d)(1) state plan appropriate monitoring, reporting, and is structurally identical to the EPA’s action on a regarding additional guidance for SIP,’’ the EPA is required to approve a state plan recordkeeping requirements to ensure submitting the plan to the EPA. that is more stringent than the BSER because of that state plans adequately provide for CAA section 116 as interpreted by Union Electric. the implementation and enforcement of b. Approvability of State Plans That Are Legal Memorandum Accompanying Clean Power standards of performance. Each state More Stringent Than Required Under Plan for Certain Issues at 28–30; 80 FR 64840. For ACE the reasons further described in this preamble, the will have the flexibility to design a EPA’s position on this state plan stringency issue compliance monitoring program for One issue raised by several has evolved since the EPA addressed it in the CPP, assessing compliance with the standards commenters is whether the EPA can and the Agency now identifies a potentially salient of performance identified in the plan. structural distinction between CAA sections 110 approve, and thereby render federally and 111(d). Notably, the BSER aspect of section To the extent that designated facilities enforceable, a state plan that contains 111(d) is absent from section 110, as SIP-measures or states already monitor and report requirements for an existing source required for attainment or maintenance of the relevant data to the EPA, states are within a state’s jurisdiction that are NAAQS are not predicated on application of a encouraged to use these existing specific technology. Under CAA section 109, the more stringent than what is required EPA establishes a health-protective standard, and systems to efficiently monitor and 253 under CAA section 111(d). At CAA section 110 then gives states broad latitude on report ACE compliance. For example, proposal, the EPA acknowledged that designing the contents of SIPs intended to meet that most potentially affected coal-fired CAA section 116 allows states to be standard. By contrast, under CAA section 111, the EGUs already continuously monitor CO2 more stringent than federal EPA identifies a particular measure or set of emissions, heat input, and gross electric measures, and CAA section 111(d) more narrowly prescribes that the contents of state plans include output and report hourly data to the 253 Requirements under state plans generally performance standards based on the application of EPA under 40 CFR part 75. Accordingly, become federally enforceable once the EPA such measures, and measures that provide for the if a state plan establishes a standard of determines that they are ‘‘satisfactory’’ per section implementation and enforcement of such standards. 111(d)(2). Section 113(a)(3) provides the EPA with Given this key distinction between CAA sections performance for a unit’s CO2 emissions the authority, in part, to enforce any requirement 110 and 111(d), the EPA no longer takes the rate (e.g., lb/MWh), states may use data of any plan approved under the same subchapter as position it took in the CPP that these two statutory collected by the EPA under 40 CFR part section 113; section 111(d) is within the same schemes are ‘‘structurally identical’’ and that 75 to meet the required monitoring, subchapter as section 113. Additionally, section therefore, under Union Electric, it must approve reporting, and recordkeeping 304(a)(1) grants citizens the authority to bring civil section 111(d) state plans that are more stringent on action against any person in violation of an this basis. See FCC v. Fox Television Stations, Inc., requirements under these emission ‘‘emission standard’’ under the CAA. Section 556 U.S. 502 (2009). However, for the reasons guidelines. 304(f)(1) and (3) respectively define ‘‘emission discussed in this preamble, the EPA is not at this The EPA is further generally applying standard’’ as a standard of performance or any stage prejudging the approvability of any future the new implementing regulations for requirement under section 111 without regard to plan submission in this regard and will evaluate whether such requirement is expressed as an any plan submission, including one that is more timing, process and required emission standard. Accordingly, citizens with stringent than what the BSER requires, on an components for state plan submissions standing could attempt to enforce the requirements individual basis through notice-and-comment and implementation for state plans of an EPA-approved section 111(d) state plan. rulemaking.

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In response to the commenters who that some states may wish to apply facilities under this rule.257 Another contend the EPA has the authority to additional measures beyond those that example that would exceed the EPA’s approve more stringent state plans, as the EPA has identified as BSER when authority is a state plan that includes an initial matter, the EPA notes that the setting the standard of performance, standards of performance or Court’s decision in Union Electric on its which states may believe are better implementation measures that do not face does not apply to state plans under suited to particular existing sources result in emission reductions from an CAA section 111(d). The decision within their jurisdiction. The EPA individual designated facility, such as specifically evaluated whether the EPA notes, as stated above, that the the use of biomass or emissions trading, has the authority to approve a SIP under comments suggesting that the EPA does for the reasons discussed at section section 110 that is more stringent than not have the authority to approve a state III.E.4.c. and III.F.2.a, respectively. what is necessary to attain and maintain plan that establishes standards of Finally, the EPA does not have the the NAAQS. The Court specifically performance for existing sources more authority to approve measures that looked to the requirements in CAA stringent than those that would result purport to be standards of performance section 110(a)(2)(A) as part of its from an application of the BSER but that actually do not meet the analysis, a provision that is wholly identified by the EPA have merit. statutory and regulatory terms for such separate and distinct from CAA section However, the EPA believes that the standards. For example, under ACE, the 111(d). CAA section 110(a)(2)(A) question of whether it has the authority EPA cannot approve a standard that is requires SIPs to include any assortment to approve, and thereby render federally a requirement for a designated facility of measures that may be necessary or enforceable, a state plan that establishes shut down. Such a standard is an appropriate to meet the ‘‘applicable standards of performance that are more operational standard rather than a requirements’’ of the CAA, which stringent than those that would result standard of performance.258 The EPA largely relate to the attainment and from the application of the BSER that has not authorized the use of maintenance of the NAAQS. CAA the EPA has identified is addressed operational standards under CAA section 111(d), by contrast, directs state properly in the context of evaluating an section 111(h) because the EPA has plans to establish standards of individual state plan. determined that it is feasible to performance for existing sources that While the EPA does not prejudge the prescribe a standard of performance for reflect the degree of emission limitation approvability of a state plan that this source category and pollutant, achievable through the application of establishes standards of performance for expressed as an emission rate.259 the BSER that EPA has determined is existing sources within the state’s As previously described, the EPA adequately demonstrated—and CAA jurisdiction that are more stringent than must review state plans, including plans section 111(d) expressly provides that it those that would result from the that establish standards of performance cannot be used to regulate NAAQS application of the BSER that the EPA for a particular existing source or pollutants. Because the Court’s holding has identified, there are clear principles sources that are more stringent than the was in the context of section 110 and and limitations imposed by CAA section standards that would result from not CAA section 111(d), the EPA 111(d) that will apply to the EPA’s application of the BSER, through notice- believes that Union Electric does not review of any state plan. As a first and-comment rulemaking to determine control the question of whether CAA principle, states must apply the BSER whether they are ‘‘satisfactory’’. This section 111(d) state plans may be more measures, as further described in review includes ensuring that the state stringent than federal requirements. section III.E. of the preamble, and derive Thus, Union Electric and the SIP 257 Section 111(d) clearly identifies that the a standard of performance that reflects issues that it addresses are regulated entity under this provision is an existing the degree of emission limitation distinguishable from the CAA section source that would be of the same source category achievable through application of the as a new source regulated under section 111(b), i.e., 111(d) context. States have broad candidate technologies, taking into a designated facility, as defined at 40 CFR 60.21(b). discretion under section 110 to select If the EPA were to approve a state plan that account remaining useful life and other the measures for inclusion in their SIPs contained provisions regulating entities other than factors as appropriate. designated facilities, that approval would give the to meet the NAAQS, which are health- As a second principle, whatever the EPA (and citizen groups) federal enforcement or welfare-based standards not scope of a state’s authority under state authority over such entities. The EPA believes such predicated on the application of any a result would be contrary to statements by the U.S. law may be to design a scheme to meet particular technology, whereas state Supreme Court that caution an agency against the emissions guidelines, the EPA’s interpreting its statutory authority in a way that plans under 111(d) must establish ‘‘would bring about an enormous and standards of performance, which are authority to approve state plans that contain standards of performance for transformative expansion in [its] regulatory defined at CAA section 111(a)(1) as authority without clear congressional reflecting the degree of emission existing sources only extends to authorization,’’ Utility Air Regulatory Group v. EPA, limitation achievable through measures that are authorized statutorily. 134 S. Ct. 2427, 2444 (2014). 258 This example is distinguishable from the one application of the BSER at a source. Specifically, the EPA’s authority is constrained to approving measures that described in section IV.H. where a state chooses to However, the EPA is mindful that it rely on a source’s remaining useful life in does not prejudge the approvability of comport with the statutory establishing a less stringent standard of any state plan submission, but rather interpretations, including performance for that source than would otherwise interpretations of the limitations on result from an application of the BSER. In that must determine whether it is instance, a state would include the shutdown date ‘‘satisfactory’’ through undertaking ‘‘standards of performance’’ and the as a measure for implementation of a standard of notice-and-comment rulemaking.256 underlying BSER. For example, CAA performance, as required under section section 111(d)(1) clearly contemplates 111(d)(1)(B). Further, some issues of approvability 259 are most appropriately handled through that state plans may only contain The EPA also notes that for purposes of a requirements for existing sources, and federal plan, the EPA is limited to promulgating a the submission, review, and approval or standard of performance, which, as defined by disapproval processes (with approvals not other entities. Therefore, in section 111(a)(1) must reflect the degree of emission and disapprovals then being subject to implementing the ACE rule, the EPA limitation achievable by the BSER; in promulgating may not approve state plan a standard of performance under a federal plan, the judicial review). The EPA anticipates statute directs the EPA to take into account, among requirements on entities other than other factors, remaining useful life of the source to 256 See CAA section 111(d)(2), 40 CFR 60.27a(b). existing EGUs, which are the designated which the standard applies. See section 111(d)(2).

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plan submission does not contravene may be required by statute or executive for the different groups in the power the statute by including measures that order for the repeal of the CPP. sector and emissions modeling as an the EPA has no authority to approve or The EPA has identified the BSER to illustration of the potential impacts. enforce as a matter of federal law, and be HRI. The EPA is providing states The EPA evaluates the potential that the state actually has evaluated the with a list of candidate HRI technologies impacts of the illustrative policy BSER in setting a standard. Though the that must be evaluated when scenario using the present value (PV) of EPA lacks the authority to approve establishing standards of performance. costs, benefits, and net benefits, certain measures, thereby rendering The cost, suitability, and potential calculated for the years 2023–2037 from them federally enforceable, nothing improvement for any of these HRI the perspective of 2016, using both a precludes states from implementing or technologies is dependent on a range of three percent and seven percent end-of- enforcing such requirements as a matter unit-specific factors such as the size, period discount rate. In addition, the of state law.260 age, fuel use, and the operating and EPA presents the assessment of costs, maintenance history of the unit. As benefits, and net benefits for specific G. Impacts of the Affordable Clean such, the HRI potential can vary snapshot years, consistent with historic Energy Rule significantly from unit to unit. The EPA practice. These specific snapshot years 1. What are the air impacts? does not have sufficient information to are 2025, 2030, and 2035. assess HRI potential on a unit-by-unit Overall, the impacts of the illustrative In the RIA for this action, the Agency basis. Therefore, any analysis of the policy scenario in terms of change in provides a full benefit-cost analysis of final rule is illustrative. Nonetheless, emissions, compliance costs, and other an illustrative policy scenario the EPA believes that such illustrative energy-sector effects are small compared representing ACE, which models analyses can provide important insights. to the recent market-driven changes that adoption of HRI measures at coal-fired In the RIA, the EPA evaluated an have occurred in the power sector. EGUs. This illustrative policy scenario illustrative policy scenario that assumes These larger industry trends are represents one set of potential outcomes HRI potential and costs will differ based discussed in detail in Chapter 2 of the of state determinations of standards of on unit size and efficiency. To establish RIA. In evaluating the significance of performance and compliance with those categories and HRI potential for use in the illustrative policy scenario, as standards by affected coal-fired EGUs. the RIA, the EPA developed a presented in the RIA and summarized Throughout the RIA, the illustrative methodology that is explained in here, it is important for context to policy scenario is compared against a Chapter 1 of the RIA. Designated understand that these impacts are single baseline that does not include the facilities were grouped into twelve modest and do not diverge dramatically CPP. As described in Chapter 2 of the groups based on three size categories from baseline expectations. RIA, the EPA believes that a single and four efficiency categories. Cost and Emissions are projected to be lower baseline without the CPP represents a performance assumptions for the under the illustrative policy scenario reasonable future against which to candidate technologies were applied to than under the baseline. Table 3 shows assess the potential impacts of the ACE the groupings to establish representative projected aggregate emission decreases rule. The EPA also provides analysis in and illustrative assumptions for use in for the illustrative policy scenario, Chapter 2 of the RIA that satisfies any the RIA. The EPA then assumed these relative to the baseline, for CO2, SO2 and need for regulatory impact analysis that varying levels of HRI potential and costs NOX from the electricity sector.

TABLE 3—PROJECTED CO2, SO2, AND NOX ELECTRICITY SECTOR EMISSION IMPACTS FOR THE ILLUSTRATIVE POLICY SCENARIO, RELATIVE TO THE BASELINE [2025, 2030, and 2035]

CO2 SO2 NOX (million short (thousand (thousand tons) short tons) short tons)

2025 ...... (12) (4.1) (7.3) 2030 ...... (11) (5.7) (7.1) 2035 ...... (9.3) (6.4) (6.0) Note: All estimates in this table are rounded to two significant figures.

The emissions changes in these tables Chapter 2 of the RIA discusses the ‘‘should be the best assessment of the do not account for changes in HAP that EPA’s analysis of the CPP repeal. It way the world would look absent the may occur as a result of this rule. For explains how after reviewing the proposed action.’’ 261 It is the EPA’s projected impacts on mercury comments and fully considering a consideration of the weight of the emissions, please see Chapter 3 of the number of factors, the EPA ultimately evidence, taking into account the RIA. The EPA was unable to project concluded that the most likely result of totality of the available information, as impacts on other HAP emissions from implementation of the CPP would be no presented in Chapter 2 of the RIA, that the illustrative policy scenario due to change in emissions and therefore no leads to the finding and conclusion that methodology and resource limitations. cost or changes in health benefits. This there is likely to be no difference As noted earlier in this section, the conclusion (i.e., that repeal of the CPP between a world where the CPP is illustrative policy scenario is compared has little or no effect against a baseline implemented and one where it is not. against a baseline that does not include that includes the CPP) is appropriate for As further explained in Chapter 2 of the the CPP. This is because the ACE action several reasons, consistent with OMB’s RIA, the EPA comes to this conclusion only occurs after the repeal of the CPP. guidance that the baseline for analysis not through the use of a single analytical

260 See CAA section 116; 40 CFR 60.24a(f). 261 OMB circular A–4, at 15.

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scenario or modeling alone, but rather 2. What are the energy impacts? final action. States are afforded through the weight of evidence that This final action has energy market considerable flexibility in the final includes: Several IPM scenarios that implications. Overall, the analysis to action, and thus the impacts could be explore a range of changes to support this action indicates that there different to the extent states make assumptions about implementation of are important power sector impacts that different choices than those assumed in the CPP; consideration of the ongoing are worth noting, although they are the illustrative analysis. evolution and change of the electric small relative to recent market-driven Table 4 presents a variety of energy sector; and recent commitments by changes in the sector or compared to market impacts for 2025, 2030, and 2035 many utilities that include long-term some other EPA air regulatory actions for the illustrative policy scenario CO2 reductions across the EGU fleet. for EGUs. The estimated impacts reflect representing ACE, relative to the the EPA’s illustrative analysis of the baseline.

TABLE 4—SUMMARY OF CERTAIN ENERGY MARKET IMPACTS FOR THE ILLUSTRATIVE POLICY SCENARIO, RELATIVE TO THE BASELINE [Percent change]

2025 2030 2035 (%) (%) (%)

Retail electricity prices ...... 0.1 0.1 0.0 Average price of coal delivered to the power sector ...... 0.1 0.0 (0.1) Coal production for power sector use ...... (1.1) (1.0 ) (1.0 ) Price of natural gas delivered to power sector ...... 0.0 (0.1) (0.6 ) Price of average Henry Hub (spot) ...... 0.0 0.0 (0.6 ) Natural gas use for electricity generation ...... (0.4) (0.3 ) 0.0

Energy market impacts are discussed TABLE 5—COMPLIANCE COSTS FOR illustrative policy scenario described more extensively in the RIA found in THE ILLUSTRATIVE POLICY SCE- previously. The EPA refers to the the rulemaking docket. NARIO, RELATIVE TO THE BASELINE climate benefits as ‘‘targeted pollutant benefits’’ as they reflect the direct 3. What are the compliance costs? [Millions of 2016$] benefits of reducing CO2, and to the The power industry’s ‘‘compliance Year Cost ancillary health benefits derived from reductions in emissions other than CO costs’’ are represented in this analysis as 2 as ‘‘co-benefits’’ as they are not direct the change in electric power generation 2025 ...... 290 2030 ...... 280 benefits from reducing the targeted costs between the baseline and 2035 ...... 25 pollutant. To estimate the climate illustrative policy scenario, including benefits associated with changes in CO2 the cost of monitoring, reporting, and Note: Compliance costs equal the projected change in total power sector generating costs emissions, the EPA applied a measure of recordkeeping. In simple terms, these plus the costs of monitoring, reporting, and the domestic social cost of carbon (SC– costs are an estimate of the increased recordkeeping. CO2). The SC–CO2 is a metric that power industry expenditures required to More detailed cost estimates are estimates the monetary value of impacts implement the HRI required by the final available in the RIA included in the associated with marginal changes in action. rulemaking docket. CO2 emissions in a given year. The SC– The compliance assumptions—and, CO2 estimates used in the RIA for these 4. What are the economic and rulemakings focus on the direct impacts therefore, the projected compliance employment impacts? costs—set forth in this analysis are of climate change that are anticipated to illustrative in nature and do not Environmental regulation may affect occur within U.S. borders. groups of workers differently, as The estimated health co-benefits are represent the plans that states may changes in abatement and other the monetized value of the human ultimately pursue. The illustrative compliance activities cause labor and health benefits among populations policy scenario is designed to reflect, to other resources to shift. An employment exposed to changes in PM2.5 and ozone. the extent possible, the scope and impact analysis describes the This rule is expected to alter the nature of the final guidelines. However, characteristics of groups of workers emissions of SO2 and NOX emissions, there is considerable uncertainty with potentially affected by a regulation, as which will in turn affect the level of regards to the precise measures that well as labor market conditions in PM2.5 and ozone in the atmosphere. states will adopt to meet the final affected occupations, industries, and Using photochemical modeling, the EPA requirements because there are geographic areas. Market and predicted the change in the annual considerable flexibilities afforded to the employment impacts of this final action average PM2.5 and summer season ozone states in developing their state plans. are discussed more extensively in across the U.S. for the years 2025, 2030, Table 5 presents the annualized Chapter 5 of the RIA for this final and 2035 for the illustrative policy compliance costs of the illustrative action. scenario. The EPA next quantified the policy scenario. human health impacts and economic 5. What are the benefits? value of these changes in air quality The EPA reports the estimated impact using the environmental Benefits on climate benefits from changes in CO2 Mapping and Analysis Program— and the estimated impact on health Community Edition (BENMAP–CE). The benefits attributable to changes in SO2, EPA quantified effects using NOX, and PM2.5 emissions, based on the concentration-response parameters

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detailed in the RIA, which are NAAQS RIAs (U.S. EPA, 2012; 2015) consistent with those employed by the (Table 6). Agency in the PM NAAQS and Ozone

TABLE 6—ESTIMATED ECONOMIC VALUE OF AVOIDED PM2.5 AND OZONE-ATTRIBUTABLE DEATHS AND ILLNESSES FOR THE ILLUSTRATIVE POLICY SCENARIO USING ALTERNATIVE APPROACHES TO REPRESENTING PM2.5 EFFECTS [95% Confidence interval in parentheses; millions of 2016$] a

2025 2030 2035

Ozone Benefits Summed With PM2.5 Benefits

3% Discount rate No-threshold model b ...... $390 ($37 to $1,100) to $970 ($86 to $2,800) $490 ($47 to $1,300) to $1,200 ($110 to $550 ($52 to $1,500) to $1,400 ($120 to $3,500). $3,900). Limited to above LML c ... $370 ($36 to $1,000) to $480 ($42 to $1,400) $440 ($42 to $1,200) to $520 ($47 to $1,500) $480 ($25 to $1,300) to $610 ($16 to $1,800). Effects above NAAQS d .. $76 ($8 to $210) ...... to $250 ($23 to $760) .... $75 ($8 to $210) ...... to $260 ($23 to $770) .... $90 ($10 to $250) ...... to $320 ($28 to $930).

Ozone Benefits Summed With PM2.5 Benefits

7% Discount rate No-threshold model b ...... $360 ($34 to $990) .... to $900 ($80 to $2,600) $460 ($44 to $1,200) to $1,100 ($100 to $510 ($48 to $1,400) to $1,300 ($110 to $3,200). $3,600). Limited to above LML c ... $350 ($33 to $950) .... to $460 ($41 to $1,300) $410 ($39 to $1,100) to $500 ($44 to $1,400) $450 ($22 to $1,200) to $590 ($13 to $1,700). Effects above NAAQS d .. $76 ($8 to $210) ...... to $250 ($23 to $760) .... $75 ($8 to $210) ...... to $260 ($23 to $770) .... $90 ($10 to $250) ...... to $320 ($28 to $930). a Values rounded to two significant figures. b PM effects quantified using a no-threshold model. Low end of range reflects dollar value of effects quantified using concentration-response pa- rameter from Krewski et al. (2009) and Smith et al. (2008) studies; upper end quantified using parameters from Lepeule et al. (2012) and Jerrett et al. (2009). Full range of ozone effects is included, and ozone effects range from 19% to 22% of the estimated values. c PM effects quantified at or above the Lowest Measured Level of each long-term epidemiological study. Low end of range reflects dollar value of effects quantified down to LML of Krewski et al. (2009) study (5.8 μg/m3); high end of range reflects dollar value of effects quantified down to LML of Lepeule et al. (2012) study (8 μg/m3). Full range of ozone effects is still included, and ozone effects range from 20% to 49% of the estimated values. d PM effects only quantified at or above the annual mean of 12 to provide insight regarding the fraction of benefits occurring above the NAAQS. Range reflects effects quantified using concentration-response parameters from Smith et al. (2008) study at the low end and Jerrett et al. (2009) at the high end. Full range of ozone effects is still included, and ozone effects range from 91% to 95% of the estimated values.

263 To give readers insight to the 2012). The percentage of estimated changes in SO2 and NOX emissions distribution of estimated benefits avoided premature deaths occurring in estimated for 3 percent and 7 percent displayed in Table 6, the EPA also 2025 above the LML and below the discount rates in the years 2025, 2030, reports the PM benefits according to NAAQS ranges between 94 percent and 2035, in 2016 dollars. This table alternative concentration cut-points and (Krewski et al. 2009) and 31 percent reports the air pollution effects concentration-response parameters. The (Lepeule et al. 2012). Less than 1 calculated using PM2.5 log-linear no percentage of estimated avoided PM2.5- percent of the estimated avoided threshold concentration-response related deaths occurring in 2025 below premature deaths occur in 2025 above functions that quantify risk associated the lowest measured levels (LML) of the the annual mean PM2.5 NAAQS of 12 with the full range of PM2.5 exposures two long-term epidemiological studies 3 mg/m . experienced by the population (U.S. the EPA uses to estimate risk varies Table 7 reports the combined EPA, 2009 264; U.S. EPA, 2011 265; NRC, between 5 percent (Krewski et al. domestic climate benefits and ancillary 2002 266). 2009) 262 and 69 percent (Lepeule et al. health co-benefits attributable to

TABLE 7—MONETIZED BENEFITS FOR THE ILLUSTRATIVE POLICY SCENARIO, RELATIVE TO THE BASELINE [Millions of 2016$]

Values calculated using 3% discount rate Values calculated using 7% discount rate Domestic Ancillary Domestic Ancillary climate health Total climate health Total benefits co-benefits benefits benefits co-benefits benefits

2025 ...... 81 390 to 970 ..... 470 to 1,000 ...... 13 360 to 900 ...... 370 to 920. 2030 ...... 81 490 to 1,200 .. 570 to 1,300 ...... 14 460 to 1,100 ...... 470 to 1,100. 2035 ...... 72 550 to 1,400 .. 620 to 1,400 ...... 13 510 to 1,300 ...... 520 to 1,300. Notes: All estimates are rounded to two significant figures, so figures may not sum due to independent rounding. Climate benefits reflect the value of domestic impacts from CO2 emissions changes. The ancillary health co-benefits reflect the sum of the PM2.5 and ozone co-benefits and reflect the range based on adult mortality functions (e.g., from Krewski et al. (2009) with Smith et al. (2009) to Lepeule et al. (2012) with Jerrett et al. (2009)). The health co-benefits do not account for direct exposure to NO2, SO2, and HAP; ecosystem effects; or visibility impairment.

262 Krewski, D., Jerrett, M., Burnett, R.T., Ma, R., 263 Lepeule, J., Laden, F., Dockery, D., Schwartz, for Environmental Assessment, Research Triangle Hughes, E., Shi, Y., Turner, M.C., Pope, C.A., J., 2012. Chronic exposure to fine particles and Park, NC. Thurston, G., Calle, E.E., Thun, M.J., Beckerman, B., mortality: An extended follow-up of the Harvard 265 U.S. EPA, 2011. Policy Assessment for the DeLuca, P., Finkelstein, N., Ito, K., Moore, D.K., Six Cities study from 1974 to 2009. Environ. Health Review of the Particulate Matter National Ambient Newbold, K.B., Ramsay, T., Ross, Z., Shin, H., Perspect. https://doi.org/10.1289/ehp.1104660. Tempalski, B., 2009. Extended follow-up and Air Quality Standards. Research Triangle Park, NC. spatial analysis of the American Cancer Society 264 U.S. EPA, 2009. Integrated Science 266 NRC, 2002. Estimating the Public Health study linking particulate air pollution and Assessment for Particulate Matter. U.S. Benefits of Proposed Air Pollution Regulations. mortality. Res. Rep. Health. Eff. Inst. 5–114–36. Environmental Protection Agency, National Center National Research Council. Washington, DC.

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In general, the EPA is more confident regulations establishing a procedure regulations as applicable to CAA section in the size of the risks estimated from similar to that under section 110 of the 111(d) emission guidelines and simulated PM2.5 concentrations that CAA for states to submit plans to the associated state plans or federal plans coincide with the bulk of the observed EPA establishing standards of that were promulgated previously. PM concentrations in the performance for existing sources within Additionally, because the original epidemiological studies that are used to their jurisdiction. The implementing implementing regulations also applied estimate the benefits. Likewise, the EPA regulations have not been significantly to regulations promulgated under CAA is less confident in the risk the EPA revised since their original section 129 (a provision enacted in the estimates from simulated PM2.5 promulgation in 1975. Notably, the 1990 Amendments that builds on CAA concentrations that fall below the bulk implementing regulations do not reflect section 111 but provides specific of the observed data in these studies.267 CAA section 111(d) in its current form authority to address facilities that Furthermore, when setting the 2012 PM as amended by Congress in 1977, and do combust waste), which has its own NAAQS, the Administrator also not reflect CAA section 110 in its statutory requirements distinct from acknowledged greater uncertainty in current form as amended by Congress in those of CAA section 111(d), the specifying the ‘‘magnitude and 1990. Accordingly, the EPA believes original implementing regulations under significance’’ of PM-related health risks that certain portions of the 40 CFR part 60, subpart B continue to at PM concentrations below the implementing regulations do not apply to EPA-regulations promulgated NAAQS. As noted in the preamble to appropriately align with CAA section under CAA section 129, and any the 2012 PM NAAQS final rule, ‘‘EPA 111(d), contrary to that provision’s associated state plans and federal plans. concludes that it is not appropriate to mandate that the EPA’s regulations be The new implementing regulations are place as much confidence in the ‘‘similar’’ in procedure to the provisions thus applicable only to CAA section magnitude and significance of the of section 110. Therefore, the EPA 111(d) regulations and associated state associations over the lower percentiles proposed to promulgate new plans issued solely under the authority of the distribution in each study as at implementing regulations that are in of CAA section 111(d). and around the long-term mean accordance with the statute in its The EPA is aware that there are a concentration.’’ 268 current form (See 83 FR 44746–44813). number of cases where state plan Monetized co-benefits estimates Agencies have the ability to revisit prior submittal and review processes are still shown here do not include several decisions, and the EPA believes it is ongoing for existing CAA section 111(d) important benefit categories, such as appropriate to do so here in light of the emission guidelines. Because the EPA is direct exposure to SO2, NOX, and HAP potential mismatch between certain finalizing new state plan and federal including mercury and hydrogen provisions of the implementing plan timing requirements under the chloride. Although the EPA does not regulations and the statute.270 While the implementing regulations to more have sufficient information or modeling preamble for the final new closely align CAA section 111(d) with available to provide monetized implementing regulations are part of the both general CAA section 110 state estimates of changes in exposure to same Federal Register document as implementation plan (SIP) and federal these pollutants for this rule, the EPA certain other Agency rules (specifically, implementation plan (FIP) timing includes a qualitative assessment of the repeal of the CPP and the requirements, and because of the EPA’s these unquantified benefits in the RIA. promulgation of the ACE rule), these understanding from experience of the For more information on the benefits new implementing regulations are a realities of how long these actions analysis, please refer to the RIA for separate and distinct rulemaking with typically take, the EPA is applying the these rules, which is available in the its own regulatory text and response to new timing requirements to both rulemaking docket. comments. The implementing emission guidelines published after the regulations are not dependent on the IV. Changes to the Implementing new implementing regulations are other final actions contained in this finalized and to all ongoing emission Regulations for CAA Section 111(d) Federal Register document. Emission Guidelines guidelines already published under The EPA proposed to largely carry CAA section 111(d). The EPA is The EPA is finalizing new regulations over the current implementing finalizing applicability of the timing to implement CAA section 111(d) regulations in 40 CFR part 60, subpart changes to all ongoing 111(d) (implementing regulations) which will B to a new subpart that will be regulations for the same reasons that the be codified at 40 CFR part 60, subpart applicable to emission guidelines that EPA is changing the timing Ba. The current implementing are finalized either concurrently with or requirements prospectively. Based on regulations at 40 CFR part 60, subpart B, subsequently to final promulgation of years of experience working with states were originally promulgated in 1975.269 the new implementing regulations, as to develop SIPs under CAA section 110, Section 111(d)(1) of the CAA explicitly well as to state plans or federal plans the EPA believes that given the requires that the EPA prescribe associated with such emission comparable amount of work, effort, guidelines. For purposes of regulatory coordination with sources, and the time 267 The Federal Register notice for the 2012 PM certainty, the EPA believes it is required to develop state plans, more NAAQS indicates that ‘‘[i]n considering this appropriate to apply these new additional population level information, the time is necessary for the process. Giving Administrator recognizes that, in general, the implementing regulations prospectively states three years to develop state plans confidence in the magnitude and significance of an and retain the existing implementing is more appropriate than the nine association identified in a study is strongest at and months provided for under the existing around the long-term mean concentration for the air 270 The authority to reconsider prior decisions quality distribution, as this represents the part of exists in part because the EPA’s interpretations of implementing regulations, considering the distribution in which the data in any given statutes it administers ‘‘[are not] instantly carved in the workload required for state plan study are generally most concentrated. She also stone,’’ but must be evaluated ‘‘on a continuing development. These practical recognizes that the degree of confidence decreases basis.’’ Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. considerations regarding the time as one moves towards the lower part of the 837, 863–64 (1984). Indeed, ‘‘[a]gencies obviously distribution.’’ See 78 FR 3159 (January 15, 2013). have broad discretion to reconsider a regulation at needed for state plan development are 268 See 78 FR 3154, January 15, 2013. any time.’’ Clean Air Council v. Pruitt, 862 F.3d 1, also applicable and true for recent 269 See 40 FR 53346. 8–9 (D.C. Cir. 2017). emission guidelines where the state

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plan submittal and review process are emission guidelines, so the EPA • Updated timing requirement for still ongoing. proposed that the new implementing when increments of progress must be For those provisions that are being regulations are applicable only to included as part of a state plan; carried over from the existing emission guidelines and associated • Completeness criteria and a process implementing regulations into the new plans developed after promulgation of for determining completeness of state implementing regulations, the EPA is this regulation, including the emission plan submissions similar to CAA not intending to substantively change guidelines being proposed as part of this section 110(k)(1) and (2); those provisions from their original action for GHGs and existing designated promulgation and continues to rely on facilities. The EPA is finalizing this • Updated definition replacing the record under which they were proposed applicability of the new ‘‘emission standard’’ with ‘‘standard of promulgated. Therefore, the following implementing regulations. performance’’; provisions remain substantively the While the EPA is carrying over a • Usage of the internet to satisfy same from their original promulgation: number of requirements from the certain public hearing requirements; 40 CFR 60.21a(a)–(d), (g)–(j) existing implementing regulations to the • (Definitions); 60.22a(a), 60.22a(b)(1)–(3), new implementing regulations, the EPA Elimination of the distinction (b)(5), (c) (Publication of emission is finalizing specific changes to better between public health-based and guidelines); 60.23a(a)–(c), (d)(3)–(5), (e)– align the implementing regulations with welfare-based pollutants in emission (h) (Adoption and submittal of state the statute. These changes are reflected guidelines; and plans; public hearings); 60.24a(a)–(d), (f) in the regulatory text for the new • Updated provision allowing for (Standards of performance and implementing regulations, and include: consideration of remaining useful life compliance schedules); 60.25a • An explicit provision allowing and other factors to be consistent with (Emission inventories, source specific emission guidelines to CAA section 111(d)(1)(B). surveillance, reports); 60.26a (Legal supersede the requirements of the new Because the EPA is updating the authority); 60.27a(a), (e)–(f) (Actions by implementing regulations; the Administrator); 60.28a(b) (Plan • Changes to the definition of implementing regulations and many of revisions by the state); and 60.29a (Plan ‘‘emission guidelines’’; the provisions from the existing revisions by the Administrator). • Updated timing requirements for implementing regulations are being As noted at proposal, the EPA is also the submission of state plans; carried over, the EPA wants to be clear sensitive to potential confusion over • Updated timing requirements for and transparent with regard to the whether these new implementing the EPA’s action on state plans; changes that are being made to the regulations would apply to emission • Updated timing requirements for implementing regulations. As such, the guidelines previously promulgated or to the EPA’s promulgation of a federal EPA is providing Table 8 that state plans associated with prior plan; summarizes the changes being made.

TABLE 8—SUMMARY OF CHANGES TO THE IMPLEMENTING REGULATIONS

New implementing regulations—Subpart Ba Existing implementing regulations—Subpart B for all future and ongoing CAA section 111(d) emission guidelines for all previously promulgated CAA section 111(d) emission guidelines

Explicit authority for a new 111(d) emission guidelines requirement to No explicit authority. supersede these implementing regulations. Use of term ‘‘standard of performance’’ ...... Use of term ‘‘emission standard’’. ‘‘Standard of performance’’ allows states to include design, equipment, ‘‘Emission standard’’ allows states to prescribe equipment specifica- work practice, or operational standards when the EPA determines it tions when the EPA determines it is clearly impracticable to establish is not feasible to prescribe or enforce a standard of performance, an emission standard. consistent with the requirements of CAA section 111(h). State submission timing: 3 years from promulgation of final emission State submission timing: 9 months from promulgation of final emission guidelines. guidelines. EPA action on state plan submission timing: 12 months after deter- EPA action on state plan submission timing: 4 months after submittal mination of completeness. deadline. Timing for EPA promulgation of a federal plan, as appropriate: 2 years Timing for EPA promulgation of a federal plan, as appropriate: 6 after finding of plan submission to be incomplete, finding of failure to months after submittal deadline. submit a plan, or disapproval of state plan. Increments of progress are required if compliance schedule for a state Increments of progress are required if compliance schedule for a state plan is longer than 24 months after the plan is due. plan is longer than 12 months after the plan is due. Completeness criteria and process for state plan submittals ...... No analogous requirement. Usage of the internet to satisfy certain public hearing requirements ...... No analogous requirement. No distinction made in treatment between health-based and welfare- Different provisions for health-based and welfare-based pollutants; based pollutants; states may consider remaining useful life and other state plans must be as stringent as the EPA’s emission guidelines factors regardless of type of pollutant. for health-based pollutants unless variance provision is invoked.

A. Regulatory Background ‘‘Administrator shall prescribe source were a new source, and (B) regulations which shall establish a provides for the implementation and The Agency also is, in this action, procedure . . . under which each state enforcement of such standards of clarifying the respective roles of the shall submit to the Administrator a plan performance.’’ 271 CAA section 111(d)(1) states and the EPA under section 111(d), which (A) establishes standards of also requires the Administrator to including by finalizing revisions to the performance for any existing source for ‘‘permit the State in applying a standard regulations implementing that section in any air pollutant . . . to which a of performance to any particular source 40 CFR part 60 subpart B. CAA section standard of performance under this 111(d)(1) states that the EPA section would apply if such existing 271 See 42 U.S.C. 7411(d).

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under a plan submitted under this regulations, the EPA effectuates its role plans that establish standards of paragraph to take into consideration, by publishing ‘‘emission guidelines’’ 277 performance, they may also provide among other factors, the remaining that, among other things, contain the information for the EPA to consider useful life of the existing source to EPA’s determination of the BSER for the when reviewing and taking action on a which such standard applies.’’272 category of existing sources being submitted state plan, as the new As the statute provides, the EPA’s regulated.278 In undertaking this task, implementing regulations at 40 CFR authorized role under CAA section the EPA ‘‘will specify different 60.27a(c) reference the ability of the 111(d)(1) is to develop a procedure for emissions guidelines . . . for different EPA to find a state plan as states to establish standards of sizes, types and classes of . . . facilities ‘‘unsatisfactory because the performance for existing sources. when costs of control, physical requirements of (the implementing Indeed, the Supreme Court has limitations, geographic location, or regulations) have not been met.’’ 283 acknowledged the role and authority of similar factors make subcategorization states under CAA section 111(d): This appropriate.’’ 279 B. Provision for Superseding provision allows ‘‘each State to take the In short, under the EPA’s revised Implementing Regulations first cut at determining how best to regulations implementing CAA section The EPA proposed to include a achieve EPA emissions standards within 111(d), which tracks with the existing provision in the new implementing its domain.’’ 273 The Court addressed the implementing regulations in this regard, regulations that expressly allows for any statutory framework as implemented the guideline documents serve to emission guidelines to supersede the through regulation, under which the ‘‘provide information for the applicability of the implementing EPA promulgates emission guidelines development of state plans.’’ 280 The regulations as appropriate, parallel to a and the states establish performance ‘‘emission guidelines,’’ reflecting the provision contained in the 40 CFR part standards: ‘‘For existing sources, EPA degree of emission limitation achievable 63 General Provisions implementing issues emissions guidelines; in through application of the BSER section 112 of the CAA. The EPA cannot compliance with those guidelines and determined by the Administrator to be foresee all of the unique circumstances subject to federal oversight, the States adequately demonstrated, are the and factors associated with particular then issue performance standards for principal piece of information states future emission guidelines, and stationary sources within their rely on to develop their plans that therefore different requirements may be jurisdiction, [42 U.S.C.] 7411(d)(1).’’ 274 establish standards of performance for necessary for a particular 111(d) As contemplated by CAA section existing sources. Additionally, the Act rulemaking that the EPA cannot 111(d)(1), states possess the authority requires that the EPA permit states to envision at this time. The EPA is and discretion to establish appropriate consider, ‘‘among other factors, the finalizing this provision as proposed. standards of performance for existing remaining useful life’’ of an existing sources. CAA section 111(a)(1) defines source in applying a standard of C. Changes to the Definition of ‘‘standard of performance’’ as ‘‘a performance to such sources.281 ‘‘Emission Guidelines’’ standard of emissions of air pollutants Additionally, while CAA section The existing implementation which reflects’’ what is commonly 111(d)(1) clearly authorizes states to regulations under 40 CFR 60.21(e) referred to as the ‘‘Best System of develop state plans that establish contain a definition of ‘‘emission Emission Reduction’’ or ‘‘BSER’’—i.e., performance standards and provides guidelines,’’ defining them as guidelines ‘‘the degree of emission limitation states with certain discretion in which reflect the degree of emission achievable through the application of determining appropriate standards, reduction achievable through the the best system of emission reduction CAA section 111(d)(2) provides the EPA application of the BSER which (taking which (taking into account the cost of specifically a role with respect to such into account the cost of such reduction) achieving such reduction and any non- state plans. This provision authorizes the Administrator has determined has air quality health and environmental the EPA to prescribe a plan for a state been adequately demonstrated for impact and energy requirements) the ‘‘in cases where the State fails to submit designated facilities. This definition Administrator determines has been a satisfactory plan.’’ 282 The EPA 275 additionally references that emission adequately demonstrated.’’ therefore is charged with determining guidelines may be set forth in 40 CFR In order to effectuate the Agency’s whether state plans developed and part 60, subpart C, or a ‘‘final guideline role under CAA section 111(d)(1), the submitted under CAA section 111(d)(1) document’’ published under 40 CFR EPA promulgated implementing are ‘‘satisfactory,’’ and the new 60.22(a). While the implementing regulations in 1975 to provide a implementing regulations at 40 CFR regulations do not define the term ‘‘final framework for subsequent EPA rules 60.27a accordingly provide timing and guideline document,’’ 40 CFR 60.22 and state plans under CAA section procedural requirements for the EPA to generally contains a number of 111(d).276 The implementing regulations make such a determination. Just as requirements pertaining to the contents reflect the EPA’s principal task under guideline documents may provide of guideline documents, which are CAA section 111(d)(1), which is to information for states in developing develop a procedure for states to intended to provide information for the development of state plans.284 The establish standards of performance for 277 See section IV.B. for the changes to the existing sources through state plans. definition of ‘‘emission guidelines’’ as part of the preambles for both the proposed and The EPA is promulgating an updated EPA’s new implementing regulations. final existing implementing regulations 278 See 40 CFR 60.22a(b) (‘‘Guideline documents suggest that ‘‘emission guidelines’’ version of the implementing regulations. published under this section will provide Under the revised implementing information for the development of State plans, 283 See also 40 FR 53343 (‘‘If there is to be such as: . . . (4) An emission guideline that reflects substantive review, there must be criteria for the 272 Id. the application of the best system of emission review, and EPA believes it is desirable (if not 273 Am. Elec. Power Co. v. Connecticut, 131 S. Ct. reduction (considering the cost of such reduction) legally required) that the criteria be made known in 2527, 2539 (2011). that has been adequately demonstrated.’’). advance to the States, to industry, and to the 274 Id. at 2537–38. 279 40 CFR 60.22(b)(5). general public. The emission guidelines, each of 275 42 U.S.C. 7411(a)(1) (emphasis added). 280 40 CFR 60.22a(b). which will be subjected to public comment before 276 See 40 CFR part 60, subpart B (hereafter 281 42 U.S.C. 7411(d)(1). final adoption, will serve this function.’’). referred to as the ‘‘implementing regulations’’). 282 Id. 7411(d)(2)(A). 284 See 40 CFR 60.22(b).

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would be guidelines provided by the requirements’’ which was not present in nine months after publication of final EPA that reflect the degree of emission the original definition). Relatedly, the emission guidelines, unless otherwise limitation achievable by the BSER. In EPA is not finalizing changes to specified in emission guidelines. the proposal for this action, the EPA proposed 40 CFR 60.21a(e) requiring the Congress subsequently revised the SIP described that it is important to provide EPA in emission guidelines to provide and FIP timing requirements in section information on such degree of emission information on the degree of emission 110 as part of the 1990 CAA limitation in order to guide states in limitation achievable through Amendments. The EPA proposed to their establishment of standards of application of the BSER rather than update accordingly the timing performance as required under CAA such degree of emission limitation itself. requirements regarding state and federal section 111(d). However, the EPA also While the statute is ambiguous as to plans under CAA section 111(d) to be explained that it did not believe whose role (i.e., the EPA’s or the states’) consistent with the current timing anything in CAA section 111(a)(1) or it is to determine the degree of emission requirements for SIPs and FIPs under 111(d) compels the EPA to provide a limitation achievable through section 110.285 presumptive emission standard that application of the BSER in the context Commenters contend that premising reflects the degree of emission of standards of performance for existing the proposed longer timelines for state limitation achievable by application of sources, the EPA believes it is plans based on the timelines for SIPs the BSER. Accordingly, as part of the reasonable to construe this aspect of and FIPs is inappropriate because CAA proposed new implementing CAA section 111 as included within the section 111(d) state plans are narrower regulations, the EPA proposed to re- EPA’s obligation to determine the BSER. in scope and less complex than section define ‘‘emission guidelines’’ as final While states are better positioned to 110 SIPs for a number of reasons. guideline documents published under evaluate source-specific factors and According to commenters, these reasons 40 CFR 60.22a(a) that include circumstances in establishing standards include: (1) Because state plans cover information on the degree of emission of performance, the EPA agrees with one source category, whereas SIPs cover reduction achievable through the commenters that because the EPA the different types of sources whose application of the BSER which (taking evaluates components such as cost of emissions must be reduced to meet an into account the cost of such reduction emission reductions and environmental ambient air quality standard; (2) because and any non-air quality health and impacts on a broader, systemwide scale sources under state plans are required to environmental impact and energy when determining the BSER, if a state meet an emission standard expressed as requirements) the EPA has determined instead were to determine the degree of a rate or mass limitation, whereas SIPs has been adequately demonstrated for emission limitation achievable for the are required to assure that ambient air designated facilities. sources within its borders, these factors within a state stay below the NAAQS, The EPA received substantial will naturally be re-balanced on a which requires monitoring, modeling, comments regarding this proposed smaller scale than the EPA’s calculation and other complicated considerations; change to the implementing regulations. and likely re-define the BSER in the and (3) EPA already does a substantial Commenters contend that because CAA process. Under the cooperative percentage of the work for states in the section 111(a)(1) requires the EPA to federalism structure of CAA section 111, first instance by determining the BSER identify the BSER, it is also the EPA’s the EPA determines the BSER and the and the degree of emission limitation statutory responsibility to identify the associated level of stringency (i.e., the achievable through application of the degree of emission limitation achievable degree of emission limitation achievable BSER. through application of the BSER. through application of the BSER), but While it is correct that the main According to commenters, the states may where appropriate relax this requirement under CAA section 111(d) identification of a BSER without an level of stringency when establishing is for state plans to establish standards accompanying emission limitation standards of performance by accounting of performance for designated facilities, reflecting its application is an for source-specific factors such as and that these existing-source incomplete identification of the system remaining useful life. Accordingly, performance standards are informed by of emission reduction itself, as it is the given the EPA’s role in determining the the degree of emission limitation manner and degree of application of a BSER, the EPA is retaining the achievable through application of the system that often determines the requirement from the original BSER that EPA identifies, CAA section quantity and cost of the emission implementing regulations that emission 111(d)(1)(B) also requires state plans to reductions achieved, as well as any guidelines reflect the degree of emission include measures that provide for the implications for energy requirements— limitation achievable through implementation and enforcement of factors that are statutorily a component application of the BSER, rather than such standards. The implementing of the BSER analysis delegated to the finalizing the proposed change that regulations further clarify what those EPA. emission guidelines provide measures may be, such as monitoring, The EPA has considered carefully information on such degree of emission reporting, and recordkeeping these comments and is not finalizing the limitation achievable. requirements, but the regulations do not proposed changes to the definition of specify the types of measures that may ‘‘emission guidelines’’ regarding the D. Updates to Timing Requirements satisfy those requirements (e.g., what aspect of such guidelines reflecting the The timing requirements in the type of monitoring is adequate to degree of emission limitation achievable existing implementing regulations for measure compliance for a particular through application of the BSER. The state plan submissions, the EPA’s action source category). Nor do the EPA is finalizing a definition of on state plan submissions, and the implementing regulations contain an ‘‘emission guidelines’’ that requires EPA’s promulgation of federal plans exhaustive list of implementation and them to reflect the degree of emission generally track the timing requirements enforcement measures given that the limitation of emission achievable for SIPs and federal implementation nature of a specific state plan, or through application of the BSER, as well plans (FIPs) under the 1970 version of individual source subject to a state plan, as updates to the definition consistent the CAA. The existing implementing may necessitate tailored implementation with CAA section 111(a)(1) (e.g., regulations at 60.23(a)(1) require state including a reference to ‘‘energy plans to be submitted to the EPA within 285 See 84 FR 44746–813.

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and enforcement measures that the EPA direction may indicate Congress’s The EPA additionally is extending the has not, or cannot, prescribe. specific intention that the EPA adopt timing for the EPA to promulgate a Establishment of standards of those same timing requirements. The federal plan from six months in the performance under CAA section 111(d) EPA is finalizing, as part of new existing implementing regulations to state plans also may not be as implementing regulations, a two years, as part of the new straightforward as commenters suggest, requirement that states adopt and implementing regulations. This two- as states have the authority to consider submit a state plan to the EPA within year timeline is consistent with the FIP remaining useful life and other factors three years after the notice of the deadline under section 110(c) of the in applying a standard to a designated availability of the final emission CAA. The EPA is finalizing provisions facility. While the EPA defines the guidelines. Because of the amount of in the new implementing regulations 286 degree of emission limitation achievable work, effort, and time required for that provide that it has the authority to through application of the BSER, it is developing state plans that include unit- promulgate a federal plan within two the state that must evaluate whether specific standards, and implementation years if it: there are source-specific considerations and enforcement measures for such • Finds that a state failed to submit a which necessitate development of a standards, the EPA believes that plan required by emission guidelines different standard than the degree of extending the submission date of state and CAA section 111(d); emission limitation that the EPA plans from nine months to three years • identifies. Commenters do not provide is appropriate. Because states have Makes a finding that a state plan any information suggesting considerable flexibility in implementing submission is incomplete, as described development of such standards, or CAA section 111(d), this timing also under the new completeness development of appropriate allows states to interact and work with requirements and criteria in 40 CFR implementation and enforcement the Agency in the development of their 60.27a(g); or measures generally, would take some state plans and to minimize the chances • Disapproves a state plan shorter period of time to formulate and of unexpected issues arising that could submission. adopt for submission of a state plan than slow down eventual approval of state E. Compliance Deadlines the three years the EPA proposed. plans. The EPA notes that nothing in Therefore, for these reasons, CAA section 111(d) or the implementing The previous implementing commenters fail to recognize that while regulations preclude states from regulations required that any CAA section 111(d) is not the same as submitting state plans earlier than the compliance schedule for state plans CAA section 110 in the scope of its applicable deadline. The EPA also is requirements, state plans under CAA extending more than 12 months from finalizing to give itself discretion to the date required for submittal of the section 111(d) have their own determine, in specific emission complexities and realities that take time plan must include legally enforceable guidelines, that a shorter time period for increments of progress to achieve to address in the development of state the submission of state plans particular plans. compliance for each designated facility to that emission guidelines is 287 To the contrary, it has been the EPA’s or category of facilities. However, as appropriate. Such authority is experience over decades in the SIP described in section IV.D, the EPA is consistent with CAA section 110(a)(1)’s context that states often do need and finalizing updates to the timing grant of authority to the Administrator take much, if not all, of the three-year requirements for the submission of, and to determine that a period shorter than period under section 110 for the process action on, state plans. Consequently, it three years is appropriate for the of developing and adopting SIPs, even follows that the requirement for submission of particular SIPs if a required SIP submission is relatively increments of progress also should be narrow in scope and nature. To the implementing the NAAQS. updated in order to align with the new extent the EPA determines a shorter Following submission of state plans, timelines. Given that the EPA is timeline is appropriate for the the EPA will review plan submittals to finalizing a period of up to 18 months submission of state plans under CAA determine whether they are for its action on state plans (i.e., 12 section 111(d), for example based on the ‘‘satisfactory’’ pursuant to CAA section months from the determination that a nature of the pollution problem 111(d)(2)(A). Given the flexibilities CAA state plan submission is complete, involved, the EPA has authority under section 111(d) and emission guidelines which could occur up to six months the implementing regulations to impose generally accord to states, and the EPA’s after receipt of the state plan), the EPA a shorter deadline in specific emission prior experience on reviewing and believes it is appropriate that the guidelines. Relatedly, the EPA also acting on SIPs under section 110, the requirement for increments of progress proposed that it would be required to EPA is extending the period for EPA should attach to plans that contain propose a federal plan ‘‘within’’ two review and approval or disapproval of compliance periods that are longer than years, and nothing in this provision plans from the four-month period the period provided for the EPA’s precludes the EPA from promulgating a provided in the 1975 implementing review of such plans. This way, sources federal plan at any period within that regulations to a twelve-month period subject to a plan will have more span of two years if it deems after a determination of completeness certainty that their regulatory appropriate. (either affirmatively by the EPA or by compliance obligations would not For all of these reasons and based on operation of law, see section IV.F. for change between the period when a state its experience, the EPA believes it is at the new implementing regulations’ plan is due and when the EPA acts on least reasonable to construe Congress’s treatment of completeness) as part of the a plan. Accordingly, the EPA is direction that it establish a procedure new implanting regulations. This requiring that states include provisions ‘‘similar’’ under that of CAA section 110 timeline will provide adequate time for for increments of progress where their to authorize it to provide the same the EPA to review plans and follow state plans contain compliance timing requirements for state and notice-and-comment rulemaking schedules longer than 24 months from federal plans under CAA section 111(d) procedures to ensure an opportunity for as Congress provided under CAA public comment on the EPA’s proposed 286 40 CFR 60.27a(c). section 110, and indeed that this action on a state plan. 287 40 CFR 60.24(e)(1).

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the date when state plans are due for official indicating that they are fully criteria) by no later than 6 months after particular emission guidelines. adopted and enforceable by the state. the date, if any, by which a state is The effective date of the regulation or required to submit the plan. The EPA F. Completeness Criteria document must, whenever possible, be requires that any plan or plan revision Similar to requirements regarding indicated in the document itself. The that a state submits to the EPA, and that determinations of completeness under state’s electronic copy must be an exact has not been determined by the EPA by CAA section 110(k)(1), the EPA is duplicate of the hard copy. For revisions the date 6 months after receipt of the finalizing completeness criteria that to the approved plan, the submission submission to have failed to meet the provide the Agency with a means to must indicate the changes made to the minimum completeness criteria, shall determine whether a state plan approved plan by redline/strikethrough; on that date be deemed by operation of submission includes the minimum (5) Evidence that the state followed all law to be a complete state plan. Then, elements necessary for the EPA to act on applicable procedural requirements of as previously discussed, the EPA the submission. The EPA determines the state’s regulations, laws, and relatedly is finalizing that the EPA will completeness simply by comparing the constitution in conducting and act on a state plan submission through state’s submission against these completing the adoption/issuance of the notice-and-comment rulemaking within completeness criteria. In the case of SIPs plan; 12 months after determining a plan is under CAA section 110(k)(1), the EPA (6) Evidence that public notice was complete either through an affirmative promulgated completeness criteria in given of the plan or plan revisions with determination or by operation of law. 1990 at appendix V to 40 CFR part procedures consistent with the When plan submissions do not 51.288 The EPA is adopting criteria requirements of 40 CFR 60.23, including contain the minimum elements, the EPA similar to the criteria set out at section the date of publication of such notice; will find that a state has failed to submit 2.0 of appendix V for determining the (7) Certification that public hearing(s) a complete plan through the same completeness of submissions under were held in accordance with the process as finding a state has made no CAA section 111(d). information provided in the public submission at all. Specifically, the EPA The EPA notes that the addition of notice and the state’s laws and will notify the state that its submission completeness criteria in the framework constitution, if applicable and is incomplete and that it therefore has regulations does not alter any of the consistent with the public hearing not submitted a required plan, and the submission requirements states already requirements in 40 CFR 60.23.; and EPA will also publish a finding of have under any applicable emission (8) Compilation of public comments failure to submit in the Federal guidelines. The completeness criteria in and the state’s response thereto. Register, which triggers the EPA’s this action are those that would In addition, the technical support obligation to promulgate a federal plan generally apply to all plan submissions required for all plans must include each for the state. This determination that a under CAA section 111(d), but specific of the following: submission is incomplete and that the emission guidelines may supplement (1) Description of the plan approach state has failed to submit a plan is these general criteria with additional and geographic scope; ministerial in nature and requires no requirements. (2) Identification of each designated exercise of discretion or judgment on The completeness criteria that the facility; identification of emission the Agency’s part, nor does it reflect a EPA is finalizing in this action can be standards for each designated facility; judgment on the eventual approvability grouped into administrative materials and monitoring, recordkeeping, and of the submitted portions of the plan. reporting requirements that will and technical support. For G. Standard of Performance administrative materials, the determine compliance by each completeness criteria mirror criteria for designated facility; As previously described, the SIP submissions because the two (3) Identification of compliance implementing regulations were programs have similar administrative schedules and/or increments of promulgated in 1975 and effectuated the processes. Under these criteria, the progress; 1970 version of the CAA as it existed at submittal must include the following: (4) Demonstration that the state plan that time. The 1970 version of CAA (1) A formal letter of submittal from submission is projected to achieve section 111(d) required state plans to the Governor or the Governor’s designee emissions performance under the include ‘‘emission standards’’ for requesting EPA approval of the plan or applicable emission guidelines; existing sources, and consequently the revision thereof; (5) Documentation of state implementing regulations refer to this (2) Evidence that the state has recordkeeping and reporting term. However, as part of the 1977 adopted the plan in the state code or requirements to determine the amendments to the CAA, Congress body of regulations; or issued the performance of the plan as a whole; and replaced the term ‘‘emission standard’’ permit, order, or consent agreement (6) Demonstration that each emission in section 111(d) with ‘‘standard of (hereafter ‘‘document’’) in final form. standard is quantifiable, permanent, performance.’’ The EPA has not since That evidence must include the date of verifiable, and enforceable. revised the implementing regulations to adoption or final issuance as well as the The EPA intends that these criteria reflect this change in terminology. For effective date of the plan, if different generally be applicable to all CAA clarity’s sake and to better track with from the adoption/issuance date; section 111(d) plans submitted on or statutory requirements, the EPA is (3) Evidence that the state has the after the date on which final new determining to include a definition of necessary legal authority under state implementing regulations are ‘‘standard of performance’’ as part of the law to adopt and implement the plan; promulgated, with the proviso that new implementing regulations, and to (4) A copy of the official state specific emission guidelines may consistently refer to this term as regulation(s) or document(s) submitted provide otherwise. appropriate within those regulations in for approval and incorporated by Consistent with the requirements of lieu of referring to an ‘‘emission reference into the plan, signed, stamped, CAA section 110(k)(1)(B) for SIPs, the standard.’’ In any event, the current and dated by the appropriate state EPA is finalizing that the EPA will definition of ‘‘emission standard’’ in the determine whether a state plan is implementing regulations is incomplete 288 55 FR 5830; February 16, 1990. complete (i.e., meets the completeness and would need to be revised. For

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example, the definition encompasses emission guidelines, such as the BSER H. Remaining Useful Life and Other equipment standards, which is an determination, the nature of the Factors Provisions alternative form of standard provided pollutant and affected source-category The EPA believes that the previous for in CAA section 111(h) under certain being regulated, and other relevant implementing regulations’ distinction circumstances. However, CAA section factors. The EPA believes the term between public health-based and 111(h) provides for other forms of ‘‘standard of performance’’ alone does welfare-based pollutants is not a alternative standards, such as work not require or preclude that the standard distinction unambiguously required practice standards, which are not be in rate or mass-based form, whereas under CAA section 111(d) or any other covered by the existing regulatory the prior definition of ‘‘emission applicable provision of the statute. The definition of ‘‘emission standard.’’ standard’’ was actually more restrictive EPA does not believe the nature of the Furthermore, the definition of in that it specified rate-based standards pollutant in terms of its impacts on ‘‘emission standard’’ encompasses and allowance-based systems, but it did health and/or welfare impact the allowance systems, a reference that was not identify other mass-based standards manner in which it is regulated under 289 added as part of the EPA’s CAMR. (such as limits) as permissible. this provision. Particularly, 60.24(c) This rule was vacated by the D.C. Similarly, other commenters stated requires that for health-based pollutants, Circuit, and therefore this added that the definition in the implementing a state’s standards of performance must component to the definition of regulations should be clarified to be of equivalent stringency to the EPA’s ‘‘emission standard’’ had no legal effect encompass unambiguously rates of any emission guidelines. However, CAA because of the Court’s vacatur. kind (e.g., input-based or output-based), section 111(d)(1)(B) states that the EPA’s Consistent with the Court’s opinion, the quantities, concentrations, or percentage regulations ‘‘shall’’ permit states to take EPA signaled its intent to remove this reductions, consistent with statutory into account, among other factors, a 290 reference as part of its MATS rule. language. However, as previously designated facility’s remaining useful However, in the final regulatory text of described, the term ‘‘standard of life when establishing an appropriate that rulemaking, the EPA did not take performance’’ alone does not specify standard of performance. In other action removing this reference, and it which form the standard must take, and words, Congress explicitly envisioned remains as a vestigial artifact. such specification is appropriately made under CAA section 111(d)(1)(B) that For these reasons, the EPA is in a particular emission guideline states could implement standards of replacing the existing definition of depending on considerations such as performance that vary from the EPA’s ‘‘emission standard’’ with a definition of the nature of the BSER, source category, emission guidelines under appropriate ‘‘standard of performance’’ that tracks and pollutant for that rule. Therefore, circumstances. Notably, the pre-existing with the definition provided for under the EPA is finalizing the definition of implementing regulations at § 60.24(f) CAA section 111(a)(1). This means a ‘‘standard of performance’’ as proposed contain a provision that allows for states standard of performance for existing and clarifying that the definition alone to also apply less stringent standards on sources would be defined as a standard does not preclude any form of rate or sources under certain circumstances.291 for emissions of air pollutants that mass-based standards, but particular However, this provision attaches to the reflects the degree of emission emission guidelines may specify the distinction between health-based and limitation achievable through the appropriate form of standards that a welfare-based pollutants and is application by the state of the BSER state plan under such guidelines can or available to the states only under the which (taking into account the cost of cannot include. EPA’s discretion. This provision was achieving such reduction and any non- The EPA is further finalizing a also promulgated prior to Congress’s air quality health and environmental definition of standard of performance addition of the requirement in CAA impact and energy requirements) the that incorporates CAA section 111(h)’s section 111(d)(1)(B) that the EPA permit Administrator determines has been allowance for design, equipment, work states to take into account remaining adequately demonstrated. Several practice, or operational standards as commenters expressed concern that the alternative standards of performance useful life and other factors, and the proposed definition of ‘‘standard of under the statutorily prescribed terms of the regulatory provision and performance’’ in conjunction with the circumstances. The previous statutory provision do not match one proposal to strike the reference to implementing regulations allowed for another, meaning that this provision allowance-based systems precluded state plans to prescribe equipment may not account for all of the factors states from including mass-based specifications when emission rates are envisioned under CAA section standards of performance. Commenters ‘‘clearly impracticable’’ as determined 111(d)(1)(B). Given all of these misunderstand the EPA’s proposal, by the EPA. CAA section 111(h)(1), by considerations, the EPA is finalizing in which did not propose that the new contrast, allows for alternative standards the new implanting regulations definition of ‘‘standard of performance’’ such as equipment standards to be provisions that remove the distinction itself would specify either rate-based or promulgated when standards of between health-based and welfare-based mass-based standards. As explained at performance are ‘‘not feasible to pollutants and associated requirements proposal, the new definition is intended prescribe or enforce,’’ as those terms are contingent upon this distinction. The to track the definition of the same term defined under CAA section 111(h)(2). EPA is also finalizing a new provision in CAA section 111(a)(1), which does Given the potential discrepancy to permit states to take into account not specify that standards of between the conditions under which remaining useful life, among other performance must be rate or mass-based. alternative standards may be established Rather, the EPA may determine in based on the different terminology used 291 The EPA is hereafter no longer referring to 40 CFR 60.24(f) or its corollary under the new particular emission guidelines the by the statute and existing implementing regulations as the ‘‘variance appropriate form of the standard that a implementing regulations, the EPA is provision.’’ The EPA is instead using the phrase state plan must include, based on establishing in the new implementing ‘‘remaining useful life and other factors’’ when considerations specific to those regulations the ‘‘not feasible to prescribe referring to this provision, as this phrase is consistent with the terminology used in CAA or enforce’’ language as the condition section 111(d)(1) and better reflects the states’ role 289 70 FR 28605. under which alternative standards may and authority in establishing standards of 290 77 FR 9304. be established. performance under CAA section 111(d) generally.

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factors, in establishing a standard of V. Statutory and Executive Order required by statute or executive order performance for a particular designated Reviews for the repeal of the CPP. facility, consistent with CAA section The EPA evaluates the potential 111(d)(1)(B). Additional information about these regulatory impacts of the illustrative Under this new ‘‘remaining useful life Statutory and Executive Orders can be policy scenario using the present value and other factors’’ provision, these found at https://www.epa.gov/laws- (PV) of costs, benefits, and net benefits, following factors may be considered, regulations/laws-and-executive-orders. calculated for the timeframe of 2023– among others: A. Executive Order 12866: Regulatory 2037 from the perspective of 2016, using • Unreasonable cost of control Planning and Review and Executive both a three percent and seven percent resulting from plant age, location, or Order 13563: Improving Regulation and end-of-period discount rate. In addition, basic process design; Regulatory Review the EPA presents the assessment of • Physical impossibility of installing costs, benefits, and net benefits for necessary control equipment; or This final action is an economically specific snapshot years, consistent with • Other factors specific to the facility significant action that was submitted to historic practice. These specific (or class of facilities) that make the OMB for review. Any changes made snapshot years are 2025, 2030, and application of a less stringent standard in response to OMB recommendations 2035. or final compliance time significantly have been documented in the docket. The power industry’s ‘‘compliance more reasonable. The EPA prepared an analysis of the costs’’ are represented in this analysis as Given that there are unique attributes compliance cost, benefit, and net benefit the change in electric power generation and aspects of each designated facility, impacts associated with this action in costs between the baseline and it is not possible for the EPA to define the analytical timeframe of 2023 to illustrative policy scenario, including each and every circumstance that states 2037. This analysis, which is contained the cost of monitoring, reporting, and may consider when applying a standard in the Regulatory Impact Analysis (RIA) recordkeeping. The EPA also reports the of performance under CAA section for this final action, is consistent with impact on climate benefits from changes 111(d); accordingly, this list is not Executive Order 12866 and is available in CO2 and the impact on health intended to be exclusive of other source- in the docket for this action. benefits attributable to changes in SO2, specific factors that a state may In the RIA for this final action, the NOX, and PM2.5 emissions. More permissibly take into account in Agency provides a full benefit-cost detailed descriptions of the cost and developing a satisfactory plan analysis of an illustrative policy benefit impacts of these rulemakings are establishing standards of performance scenario representing ACE, which presented in section III.F above. for existing sources within its models HRI at coal-fired EGUs. This Table 9 presents the PV and jurisdiction. Such ‘‘other factors’’ illustrative policy scenario, described in equivalent annualized value (EAV) of referred to under the remaining useful greater detail in section III.F above, the estimated costs, domestic climate life and other factors provision may be represents potential outcomes of state benefits, ancillary health co-benefits, ones that influence decisions to invest determinations of standards of and net benefits of the illustrative policy in technologies to meet a potential performance, and compliance with scenario for the timeframe of 2023– performance standard. Such other those standards by affected coal-fired 2037, relative to the baseline. The EAV factors may include timing EGUs. Throughout the RIA, the represents an even-flow of figures over considerations like payback period for illustrative policy scenario is compared the timeframe of 2023–2037 that would investments, the timing of regulatory against a single baseline. As described yield an equivalent present value. The requirements, and other unit-specific in Chapter 2 of the RIA, the EPA EAV is identical for each year of the criteria. A state may account for believes that a single baseline without analysis, in contrast to the year-specific remaining useful life and other factors the CPP represents a reasonable future estimates presented earlier for the as it determines appropriate for a against which to assess the potential snapshot years of 2025, 2030, and 2035. specific source, so long as the state impacts of the ACE rule. The EPA also Table 10 presents the estimates for the adopts a reasonable approach and provides analysis in Chapter 2 of the specific snapshot years of 2025, 2030, adequately explains that approach in its RIA that satisfies any need for and 2035. submission to the EPA. regulatory impact analysis that may be TABLE 9—PRESENT VALUE AND EQUIVALENT ANNUALIZED VALUE OF COMPLIANCE COSTS, DOMESTIC CLIMATE BENEFITS, ANCILLARY HEALTH CO-BENEFITS, AND NET BENEFITS, ILLUSTRATIVE POLICY SCENARIO, 3 AND 7 PERCENT DIS- COUNT RATES, 2023–2037 [Millions of 2016$]

Costs Domestic climate Ancillary health Net benefits benefits co-benefits 3% 7% 3% 7% 3% 7% 3% 7%

Present Value ...... 1,600 970 640 62 4,000 to 9,800 .... 2,000 to 5,000 .... 3,000 to 8,800 .... 1,100 to 4,100. Equivalent Annualized Value ...... 140 110 53 6.9 330 to 820 ...... 220 to 550 ...... 250 to 730 ...... 120 to 450. Notes: All estimates are rounded to two significant figures, so figures may not sum due to independent rounding. Climate benefits reflect the value of domestic im- pacts from CO2 emissions changes. The ancillary health co-benefits reflect the sum of the PM2.5 and ozone benefits from changes in electricity sector SO2 and NOX emissions and reflect the range based on adult mortality functions (e.g., from Krewski et al. (2009) with Smith et al. (2009) 292 to Lepeule et al. (2012) with Jerrett et al. (2009)).293

292 Smith, R.L., Xu, B., Switzer, P., 2009. Inhal. Toxicol. 21 Suppl 2, 37–61. https://doi.org/ M., 2009. Long-term ozone exposure and mortality. Reassessing the relationship between ozone and 10.1080/08958370903161612. N. Engl. J. Med. 360, 1085–95. https://doi.org/ short-term mortality in U.S. urban communities. 293 Jerrett, M., Burnett, R.T., Pope, C.A., Ito, K., 10.1056/NEJMoa0803894. Thurston, G., Krewski, D., Shi, Y., Calle, E., Thun,

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TABLE 10—COMPLIANCE COSTS, DOMESTIC CLIMATE BENEFITS, ANCILLARY HEALTH CO-BENEFITS, AND NET BENEFITS IN 2025, 2030, AND 2035, ILLUSTRATIVE POLICY SCENARIO, 3 AND 7 PERCENT DISCOUNT RATES [Millions of 2016$]

Costs Domestic climate Ancillary health Net benefits benefits co-benefits 3% 7% 3% 7% 3% 7% 3% 7%

2025 ...... 290 290 81 13 390 to 970 ...... 360 to 900 ...... 180 to 760 ...... 84 to 630. 2030 ...... 280 280 81 14 490 to 1,200 ... 460 to 1,100 ... 300 to 1,000 ... 200 to 860. 2035 ...... 25 25 72 13 550 to 1,400 ... 510 to 1,300 ... 600 to 1,400 ... 500 to 1,200. Notes: All estimates are rounded to two significant figures, so figures may not sum due to independent rounding. Climate benefits reflect the value of domestic impacts from CO2 emissions changes. The ancillary health co-benefits reflect the sum of the PM2.5 and ozone benefits from changes in electricity sector SO2 and NOX emissions and reflect the range based on adult mortality functions (e.g., from Krewski et al. (2009) with Smith et al. (2009) to Lepeule et al. (2012) with Jerrett et al. (2009)).

In the decision-making process it is the compliance costs. Excluded from Table 11 presents the PV and EAV of useful to consider the change in benefits this comparison are the benefits from the estimated costs, benefits, and net due to the targeted pollutant relative to changes in PM2.5 and ozone benefits associated with the targeted the costs. Therefore, in Chapter 6 of the concentrations from changes in SO2, pollutant, CO2, for the timeframe of RIA for this final action the Agency NOX, and PM2.5 emissions that are 2023–2037, relative to the baseline. In presents a comparison of the benefits projected to accompany changes in CO2 Table 11 and Table 12, negative net from the targeted pollutant—CO2—with emissions. benefits are indicated with parenthesis.

TABLE 11—PRESENT VALUE AND EQUIVALENT ANNUALIZED VALUE OF COMPLIANCE COSTS, CLIMATE BENEFITS, AND NET BENEFITS ASSOCIATED WITH TARGETED POLLUTANT (CO2), ILLUSTRATIVE POLICY SCENARIO, 3 AND 7 PERCENT DIS- COUNT RATES, 2023–2037 [Millions of 2016$]

Costs Domestic climate Net benefits associated benefits with the targeted pollutant (CO2) 3% 7% 3% 7% 3% 7%

Present Value ...... 1,600 970 640 62 (980) (910) Equivalent Annualized Value ...... 140 110 53 6.9 (82) (100) Notes: Negative net benefits indicate forgone net benefits. All estimates are rounded to two significant figures, so figures may not sum due to independent rounding. Climate benefits reflect the value of domestic impacts from CO2 emissions changes. This table does not include estimates of ancillary health co-benefits from changes in electricity sector SO2 and NOX emissions.

Table 12 presents the costs, benefits, rather than as a PV or EAV as found in and net benefits associated with the Table 11. targeted pollutant for specific years,

TABLE 12—COMPLIANCE COSTS, CLIMATE BENEFITS, AND NET BENEFITS ASSOCIATED WITH TARGETED POLLUTANT (CO2) IN 2025, 2030, AND 2035, ILLUSTRATIVE POLICY SCENARIO, 3 AND 7 PERCENT DISCOUNT RATES [Millions of 2016$]

Costs Domestic climate Net benefits associated benefits with the targeted pollutant (CO2) 3% 7% 3% 7% 3% 7%

2025 ...... 290 290 81 13 (210) (280) 2030 ...... 280 280 81 14 (200) (260) 2035 ...... 25 25 72 13 47 (11) Notes: Negative net benefits indicate forgone net benefits. All estimates are rounded to two significant figures, so figures may not sum due to independent rounding. Climate benefits reflect the value of domestic impacts from CO2 emissions changes. This table does not include estimates of ancillary health co-benefits from changes in electricity sector SO2 and NOX emissions.

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Throughout the RIA for this action, control number. The OMB control promulgation of the rule was estimated the EPA considers a number of sources numbers for the EPA’s regulations in 40 and is listed in section IV.A. above, but of uncertainty, both quantitatively and CFR are listed in 40 CFR part 9. When this burden is estimated to be below qualitatively. The RIA also summarizes OMB approves this ICR, the Agency will $100 million in any one year. Thus, this other potential sources of benefits and announce the approval in the Federal rule is not subject to the requirements costs that may result from these rules Register and publish a technical of section 203 or section 205 of the that have not been quantified or amendment to 40 CFR part 9 to display Unfunded Mandates Reform Act monetized. the OMB control number for the (UMRA). approved information collection This rule is also not subject to the B. Executive Order 13771: Reducing activities contained in this final rule. requirements of section 203 of UMRA Regulation and Controlling Regulatory because, as described in 2 U.S.C. 1531– Costs D. Regulatory Flexibility Act (RFA) 38, it contains no regulatory This action is expected to be an After considering the economic requirements that might significantly or Executive Order 13771 regulatory impacts of this rule on small entities, I uniquely affect small governments. This action. Details on the estimated costs of certify that this action will not have a action imposes no enforceable duty on this final rule can be found in the EPA’s significant economic impact on a any state, local, or tribal governments or analysis of the potential costs and substantial number of small entities. the private sector. benefits associated with this action. This final rule will not impose any requirements on small entities. F. Executive Order 13132: Federalism C. Paperwork Reduction Act (PRA) Specifically, emission guidelines The EPA has concluded that this The information collection activities established under CAA section 111(d) action may have federalism implications in this rule have been submitted for do not impose any requirements on because it might impose substantial approval to the Office of Management regulated entities and, thus, will not direct compliance costs on state or local and Budget (OMB) under the PRA. The have a significant economic impact governments, and the federal Information Collection Request (ICR) upon a substantial number of small government will not provide the funds document that the EPA prepared has entities. After emission guidelines are necessary to pay those costs. The been assigned the EPA ICR number promulgated, states develop and submit development of state plans will entail 2503.04. A copy of the ICR can be found to the EPA plans that establish many hours of staff time to develop and in the docket for this rule, and it is performance standards for existing coordinate programs for compliance briefly summarized here. The sources within their jurisdiction, and it with the proposed rule, as well as time information collection requirements are is those state requirements that could to work with state legislatures as not enforceable until OMB approves potentially impact small entities. Our appropriate, and develop a plan them. analysis in the accompanying RIA is submittal. The Agency understands the The information collection consistent with the analysis of the burden that these actions will have on requirements are based on the analogous situation arising when the states and is committing to providing recordkeeping and reporting burden EPA establishes NAAQS, which do not aid and guidance to states through the associated with developing, impose any requirements on regulated plan development process. The EPA implementing, and enforcing a state entities. As with the description in the will be available at the states initiative plan to limit CO2 emissions from RIA, any impact of a NAAQS on small to provide clarity for developing plans, existing sources in the power sector. entities would only arise when states including standard of performance These recordkeeping and reporting take subsequent action to maintain and/ setting and compliance initiatives. or achieve the NAAQS through their requirements are specifically authorized G. Executive Order 13175: Consultation state implementation plans.294 by CAA section 114 (42 U.S.C. 7414). and Coordination With Indian Tribal All information submitted to the EPA E. Unfunded Mandates Reform Act Governments pursuant to the recordkeeping and (UMRA) reporting requirements for which a This action does not have tribal claim of confidentiality is made is This action does not contain an implications as specified in Executive safeguarded according to Agency unfunded mandate of $100 million or Order 13175. It would not impose policies set forth in 40 CFR part 2, more as described in UMRA, 2 U.S.C. substantial direct compliance costs on subpart Ba. 1531–1538, and does not significantly or tribal governments that have designated Respondents/affected entities: 48— uniquely affect small governments. facilities located in their area of Indian the 48 contiguous states; This action does not contain a federal country. Tribes are not required to Respondent’s obligation to respond: mandate that may result in expenditures develop plans to implement the The EPA expects state plan submissions of $100 million or more for state, local, guidelines under CAA section 111(d) for from 43 of the 48 contiguous states and and tribal governments, in the aggregate designated facilities. The EPA notes that negative declarations from Vermont, or the private sector in any one year. this final rule does not directly impose California, Maine, Idaho, and Rhode Specifically, the emission guidelines specific requirements on EGU sources, Island. proposed under CAA section 111(d) do including those located in Indian Frequency of response: Yearly. not impose any direct compliance country; before developing any Total estimated burden: 192,640 requirements on regulated entities, apart standards of performance for existing hours (per year). Burden is defined at 5 from the requirement for states to sources on tribal land, the EPA would CFR 1320.3(b). develop state plans. The burden for consult with leaders from affected Total estimated cost: $21,500 states to develop state plans in the tribes. This action also will not have annualized capital or operation and three-year period following substantial direct costs or impacts on maintenance costs. the relationship between the federal An agency may not conduct or 294 See American Trucking Ass’n v. EPA, 175 government and Indian tribes or on the F.3d 1029, 1043–45 (D.C. Cir. 1999) (NAAQS do not sponsor, and a person is not required to have significant impacts upon small entities distribution of power and respond to, a collection of information because NAAQS themselves impose no regulations responsibilities between the federal unless it displays a currently valid OMB upon small entities). government and Indian tribes, as

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specified in Executive Order 13175. Fond du Lac Band, the 1854 Treaty J. National Technology Transfer and Thus, Executive Order 13175 does not Authority, and the Sac and Fox Nation. Advancement Act (NTTAA) apply to the action. Tribal commenters insisted on This rulemaking does not involve Executive Order 13175 requires the meaningful government-to-government technical standards. EPA to develop an accountable process consultation with potentially impacted to ensure ‘‘meaningful and timely input tribes, and that the final rule require K. Executive Order 12898: Federal by tribal officials in the development of states to consult with indigenous and Actions To Address Environmental regulatory policies that have tribal vulnerable communities as they develop Justice in Minority Populations and implications.’’ The EPA has concluded state plans. More specific comments can Low-Income Populations that this action does not have tribal be found in the docket. The EPA believes that this action is implications as specified in E.O. 13175. unlikely to have disproportionately high It would not impose substantial direct H. Executive Order 13045: Protection of and adverse human health or compliance costs on tribal governments Children From Environmental Health environmental effects on minority that have designated facilities located in Risks and Safety Risks populations, low-income populations their area of Indian country. Tribes are This action is subject to Executive and/or indigenous peoples as specified not required to develop plans to in Executive Order 12898 (59 FR 7629, implement the guidelines under CAA Order 13045 because it is an economically significant regulatory February 16, 1994). The EPA believes section 111(d) for designated facilities. that this action will achieve CO action as defined by Executive Order 2 This action also will not have emission reductions resulting from 12866. The EPA believes that this action substantial direct cost or impacts on the implementation of these final will achieve CO emission reductions relationship between the federal 2 guidelines, as well as ozone and PM resulting from implementation of these 2.5 government and Indian tribes or on the emission reductions as a co-benefit, and emission guidelines, as well as ozone distribution of power and will further improve environmental responsibilities between the federal and PM2.5 emission reductions as a co- justice communities’ health as government and Indian tribes, as benefit, and will further improve discussed in the RIA. specified in Executive Order 13175. children’s health. With regards to the repeal, Chapter 2 Consistent with EPA Policy on Moreover, this action does not affect of the RIA explains why the EPA Consultation and Coordination with the level of public health and believes that the power sector is already Indian Tribes, the EPA consulted with environmental protection already being on path to achieve the CO2 reductions tribal officials during the development provided by existing NAAQS, including required by the CPP, therefore the EPA of this action to provide an opportunity ozone and PM2.5, and other mechanisms does not believe it would have any to have meaningful and timely input. in the CAA. This action does not affect significant impact on EJ effected On August 24, 2018, consultation letters applicable local, state, or federal communities. were sent to 584 tribal leaders that permitting or air quality management With regards to ACE, as described in provided information and offered programs that will continue to address Chapter 4 of the RIA, the EPA finds that consultation regarding the EPA’s areas with degraded air quality and most of the eastern U.S. will experience development of this rule. On August 30, maintain the air quality in areas meeting PM and ozone-related benefits as a 2018, the EPA provided a presentation current standards. Areas that need to result of this action. While the EPA overview on the Proposal: Affordable reduce criteria air pollution to meet the expects areas in the southeastern U.S. to Clean Energy (Rule) on the monthly NAAQS will still need to rely on control experience a modest increase in fine National Tribal Air Association/EPA Air strategies to reduce emissions. particle levels, areas including the Policy call. At the request of the tribes, Midwest will experience reduced levels two consultation meetings were held: I. Executive Order 13211: Actions of PM, yielding significant benefits in One with the Navajo Nation on October Concerning Regulations That the form of fewer premature deaths and 11, 2018, and one with the Samish Significantly Affect Energy Supply, illnesses. On balance, the positive Indian Nation on October 16, 2018. The Distribution, or Use benefits of this action significantly Samish Indian Nation opened their outweigh the estimated disbenefits. consultation to other tribes—also This action, which is a significant Moreover, this action does not affect participating in this meeting for regulatory energy action under the level of public health and informational purposes only were seven Executive Order 12866, is likely to have environmental protection already being tribes (Blue Lake Rancheria, Cherokee a significant effect on the supply, provided by existing NAAQS, including distribution, or use of energy. Nation Environmental Program, La Jolla ozone and PM2.5, and other mechanisms Band of Luisen˜ o Indians, Leech Lake Specifically, the EPA estimated in the in the CAA. Band of Ojibwe, Muscogee (Creek) RIA that the rule could result in more Nation Office of Environmental than a one percent decrease in coal L. Congressional Review Act (CRA) Services, Nez Perce Tribe, The Quapaw production in 2025 (or a reduction of This action is subject to the CRA, and Tribe) and the National Tribal Air more than a 5 million tons per year) and the EPA will submit a rule report to Association. In the meetings, the tribes less than a one percent reduction in each House of the Congress and to the were presented information from the natural gas use in the power sector (or Comptroller General of the United proposal. The tribes asked general more than a 25 million MCF reduction States. This action is a ‘‘major rule’’ as clarifying questions and indicated that in production on an annual basis). The defined by 5 U.S.C. 804(2). they would submit formal comments. energy impacts the EPA estimates from Comments on the proposal were these rules may be under- or over- VI. Statutory Authority received from the Navajo Nation, the estimates of the true energy impacts The statutory authority for this action Samish Indian Nation, Blue Lake associated with this action. For more is provided by sections 111, 301, and Rancheria, Leech Lake Band of Ojibwe, information on the estimated energy 307(d)(1)(V) of the CAA, as amended (42 Nez Perce Tribe, and the National Tribal effects, please refer to the RIA for these U.S.C. 7411, 7601, 7607(d)(1)(V)). This Air Association, in addition to the rulemakings, which is in the public action is also subject to section 307(d) Keweenaw Bay Indian Community, the docket. of the CAA (42 U.S.C. 7607(d)).

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List of Subjects in 40 CFR Part 60 emission limitation or other applicable operational standard, or combination Environmental protection, requirement established by the thereof. Administrative practice and procedure, Administrator pursuant to other (g) Compliance schedule means a Air pollution control, Intergovernmental authority of the Act (section 112, Part C legally enforceable schedule specifying relations, Reporting and recordkeeping or D, or any other authority of this Act), a date or dates by which a source or requirements. or a standard issued under State category of sources must comply with authority. specific standards of performance Dated: June 19, 2019. contained in a plan or with any Andrew R. Wheeler, § 60.21a Definitions. increments of progress to achieve such Administrator. Terms used but not defined in this compliance. subpart shall have the meaning given Therefore, 40 CFR chapter I is (h) Increments of progress means them in the Act and in subpart A of this amended as follows: steps to achieve compliance which must part: be taken by an owner or operator of a PART 60—STANDARDS OF (a) Designated pollutant means any designated facility, including: PERFORMANCE FOR NEW air pollutant, the emissions of which are (1) Submittal of a final control plan STATIONARY SOURCES subject to a standard of performance for for the designated facility to the new stationary sources, but for which appropriate air pollution control agency; ■ 1. The authority citation for part 60 air quality criteria have not been issued (2) Awarding of contracts for emission continues to read as follows: and that is not included on a list control systems or for process Authority: 42 U.S.C. 7401 et seq. published under section 108(a) or modifications, or issuance of orders for section 112(b)(1)(A) of the Act. the purchase of component parts to ■ 2. Add subpart Ba to read as follows: (b) Designated facility means any accomplish emission control or process existing facility (see § 60.2) which emits modification; Subpart Ba—Adoption and Submittal a designated pollutant and which would of State Plans for Designated Facilities (3) Initiation of on-site construction or be subject to a standard of performance installation of emission control Sec. for that pollutant if the existing facility equipment or process change; 60.20a Applicability. were an affected facility (see § 60.2). (4) Completion of on-site construction 60.21a Definitions. (c) Plan means a plan under section or installation of emission control 60.22a Publication of emission guidelines. 111(d) of the Act which establishes equipment or process change; and 60.23a Adoption and submittal of State standards of performance for designated (5) Final compliance. plans; public hearings. pollutants from designated facilities and (i) Region means an air quality control 60.24a Standards of performance and provides for the implementation and compliance schedules. region designated under section 107 of enforcement of such standards of the Act and described in part 81 of this 60.25a Emission inventories, source performance. surveillance, reports, chapter. 60.26a Legal authority. (d) Applicable plan means the plan, (j) Local agency means any local 60.27a Actions by the Administrator. or most recent revision thereof, which governmental agency. 60.28a Plan revisions by the State. has been approved under § 60.27a(b) or 60.29a Plan revisions by the Administrator. promulgated under § 60.27a(d). § 60.22a Publication of emission (e) Emission guideline means a guidelines. § 60.20a Applicability. guideline set forth in subpart C of this (a) Concurrently upon or after (a) The provisions of this subpart part, or in a final guideline document proposal of standards of performance for apply upon publication of a final published under § 60.22a(a), which the control of a designated pollutant emission guideline under § 60.22a(a) if reflects the degree of emission from affected facilities, the implementation of such final guideline limitation achievable through the Administrator will publish a draft is ongoing as of July 8, 2019 or if the application of the best system of emission guideline containing final guideline is published after July 8, emission reduction which (taking into information pertinent to control of the 2019. account the cost of such reduction and designated pollutant from designated (1) Each emission guideline any non-air quality health and facilities. Notice of the availability of promulgated under this part is subject to environmental impact and energy the draft emission guideline will be the requirements of this subpart, except requirements) the Administrator has published in the Federal Register and that each emission guideline may determined has been adequately public comments on its contents will be include specific provisions in addition demonstrated for designated facilities. invited. After consideration of public to or that supersede requirements of this (f) Standard of performance means a comments and upon or after subpart. Each emission guideline must standard for emissions of air pollutants promulgation of standards of identify explicitly any provision of this which reflects the degree of emission performance for control of a designated subpart that is superseded. limitation achievable through the pollutant from affected facilities, a final (2) Terms used throughout this part application of the best system of emission guideline will be published are defined in § 60.21a or in the Clean emission reduction which (taking into and notice of its availability will be Air Act (Act) as amended in 1990, account the cost of achieving such published in the Federal Register. except that emission guidelines reduction and any nonair quality health (b) Emission guidelines published promulgated as individual subparts of and environmental impact and energy under this section will provide this part may include specific requirements) the Administrator information for the development of definitions in addition to or that determines has been adequately State plans, such as: supersede definitions in § 60.21a. demonstrated, including, but not (1) Information concerning known or (b) No standard of performance or limited to a legally enforceable suspected endangerment of public other requirement established under regulation setting forth an allowable rate health or welfare caused, or contributed this part shall be interpreted, construed, or limit of emissions into the to, by the designated pollutant. or applied to diminish or replace the atmosphere, or prescribing a design, (2) A description of systems of requirements of a more stringent equipment, work practice, or emission reduction which, in the

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judgment of the Administrator, have (c) The State shall, prior to the Regional Office), the Administrator may been adequately demonstrated. adoption of any plan or revision thereof, approve State procedures designed to (3) Information on the degree of conduct one or more public hearings insure public participation in the emission limitation which is achievable within the State on such plan or plan matters for which hearings are required with each system, together with revision in accordance with the and public notification of the information on the costs, nonair quality provisions under this section. opportunity to participate if, in the health environmental effects, and (d) Any hearing required by paragraph judgment of the Administrator, the energy requirements of applying each (c) of this section shall be held only procedures, although different from the system to designated facilities. after reasonable notice. Notice shall be requirements of this subpart, in fact (4) Incremental periods of time given at least 30 days prior to the date provide for adequate notice to and normally expected to be necessary for of such hearing and shall include: participation of the public. The the design, installation, and startup of (1) Notification to the public by Administrator may impose such identified control systems. prominently advertising the date, time, conditions on his approval as he deems (5) The degree of emission limitation and place of such hearing in each region necessary. Procedures approved under achievable through the application of affected. This requirement may be this section shall be deemed to satisfy the best system of emission reduction satisfied by advertisement on the the requirements of this subpart (considering the cost of such achieving internet; regarding procedures for public reduction and any nonair quality health (2) Availability, at the time of public hearings. and environmental impact and energy announcement, of each proposed plan requirements) that has been adequately or revision thereof for public inspection § 60.24a Standards of performance and demonstrated for designated facilities, in at least one location in each region to compliance schedules. and the time within which compliance which it will apply. This requirement (a) Each plan shall include standards with standards of performance can be may be satisfied by posting each of performance and compliance achieved. The Administrator may proposed plan or revision on the schedules. specify different degrees of emission internet; (b) Standards of performance shall limitation or compliance times or both (3) Notification to the Administrator; either be based on allowable rate or for different sizes, types, and classes of (4) Notification to each local air limit of emissions, except when it is not designated facilities when costs of pollution control agency in each region feasible to prescribe or enforce a control, physical limitations, to which the plan or revision will apply; standard of performance. The EPA shall geographical location, or similar factors and identify such cases in the emission make subcategorization appropriate. (5) In the case of an interstate region, guidelines issued under § 60.22a. Where (6) Such other available information notification to any other State included standards of performance prescribing as the Administrator determines may in the region. design, equipment, work practice, or contribute to the formulation of State (e) The State may cancel the public operational standard, or combination plans. hearing through a method it identifies if thereof are established, the plan shall, to (c) The emission guidelines and no request for a public hearing is the degree possible, set forth the compliance times referred to in received during the 30 day notification emission reductions achievable by paragraph (b)(5) of this section will be period under paragraph (d) of this implementation of such standards, and proposed for comment upon publication section and the original notice may permit compliance by the use of of the draft guideline document, and announcing the 30 day notification equipment determined by the State to be after consideration of comments will be period states that if no request for a equivalent to that prescribed. promulgated in subpart C of this part public hearing is received the hearing (1) Test methods and procedures for with such modifications as may be will be cancelled; identifies the method determining compliance with the appropriate. and time for announcing that the standards of performance shall be hearing has been cancelled; and specified in the plan. Methods other § 60.23a Adoption and submittal of State provides a contact phone number for the than those specified in appendix A to plans; public hearings. public to call to find out if the hearing this part or an applicable subpart of this (a)(1) Unless otherwise specified in has been cancelled. part may be specified in the plan if the applicable subpart, within three (f) The State shall prepare and retain, shown to be equivalent or alternative years after notice of the availability of a for a minimum of 2 years, a record of methods as defined in § 60.2. final emission guideline is published each hearing for inspection by any (2) Standards of performance shall under § 60.22a(a), each State shall adopt interested party. The record shall apply to all designated facilities within and submit to the Administrator, in contain, as a minimum, a list of the State. A plan may contain standards accordance with § 60.4, a plan for the witnesses together with the text of each of performance adopted by local control of the designated pollutant to presentation. jurisdictions provided that the which the emission guideline applies. (g) The State shall submit with the standards are enforceable by the State. (2) At any time, each State may adopt plan or revision: (c) Except as provided in paragraph and submit to the Administrator any (1) Certification that each hearing (e) of this section, standards of plan revision necessary to meet the required by paragraph (c) of this section performance shall be no less stringent requirements of this subpart or an was held in accordance with the notice than the corresponding emission applicable subpart of this part. required by paragraph (d) of this guideline(s) specified in subpart C of (b) If no designated facility is located section; and this part, and final compliance shall be within a State, the State shall submit a (2) A list of witnesses and their required as expeditiously as practicable, letter of certification to that effect to the organizational affiliations, if any, but no later than the compliance times Administrator within the time specified appearing at the hearing and a brief specified in an applicable subpart of in paragraph (a) of this section. Such written summary of each presentation or this part. certification shall exempt the State from written submission. (d) Any compliance schedule the requirements of this subpart for that (h) Upon written application by a extending more than 24 months from designated pollutant. State agency (through the appropriate the date required for submittal of the

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plan must include legally enforceable designated facilities to maintain records submitted under paragraph (a) of this increments of progress to achieve and periodically report to the State section or in previous progress reports. compliance for each designated facility information on the nature and amount (6) Submission of copies of technical or category of facilities. Unless of emissions from such facilities, and/or reports on all performance testing on otherwise specified in the applicable such other information as may be designated facilities conducted under subpart, increments of progress must necessary to enable the State to paragraph (b)(2) of this section, include, where practicable, each determine whether such facilities are in complete with concurrently recorded increment of progress specified in compliance with applicable portions of process data. § 60.21a(h) and must include such the plan. Submission of electronic additional increments of progress as documents shall comply with the § 60.26a Legal authority. may be necessary to permit close and requirements of 40 CFR part 3 (a) Each plan or plan revision shall effective supervision of progress toward (Electronic reporting). show that the State has legal authority final compliance. (2) Periodic inspection and, when to carry out the plan or plan revision, (e) In applying a standard of applicable, testing of designated including authority to: performance to a particular source, the facilities. (1) Adopt standards of performance State may take into consideration (c) Each plan shall provide that and compliance schedules applicable to factors, such as the remaining useful life information obtained by the State under designated facilities. of such source, provided that the State paragraph (b) of this section shall be (2) Enforce applicable laws, demonstrates with respect to each such correlated with applicable standards of regulations, standards, and compliance facility (or class of such facilities): performance (see § 60.25a(a)) and made schedules, and seek injunctive relief. (1) Unreasonable cost of control available to the general public. (3) Obtain information necessary to resulting from plant age, location, or (d) The provisions referred to in determine whether designated facilities basic process design; paragraphs (b) and (c) of this section are in compliance with applicable laws, (2) Physical impossibility of installing shall be specifically identified. Copies regulations, standards, and compliance necessary control equipment; or of such provisions shall be submitted schedules, including authority to (3) Other factors specific to the facility with the plan unless: require recordkeeping and to make (or class of facilities) that make (1) They have been approved as inspections and conduct tests of application of a less stringent standard portions of a preceding plan submitted designated facilities. or final compliance time significantly under this subpart or as portions of an (4) Require owners or operators of more reasonable. implementation plan submitted under designated facilities to install, maintain, (f) Nothing in this subpart shall be section 110 of the Act; and and use emission monitoring devices construed to preclude any State or (2) The State demonstrates: and to make periodic reports to the State political subdivision thereof from (i) That the provisions are applicable on the nature and amounts of emissions adopting or enforcing: to the designated pollutant(s) for which from such facilities; also authority for (1) Standards of performance more the plan is submitted, and the State to make such data available to stringent than emission guidelines (ii) That the requirements of § 60.26a the public as reported and as correlated specified in subpart C of this part or in are met. with applicable standards of applicable emission guidelines; or (e) The State shall submit reports on performance. (2) Compliance schedules requiring progress in plan enforcement to the (b) The provisions of law or final compliance at earlier times than Administrator on an annual (calendar regulations which the State determines those specified in subpart C of this part year) basis, commencing with the first provide the authorities required by this or in applicable emission guidelines. full report period after approval of a section shall be specifically identified. § 60.25a Emission inventories, source plan or after promulgation of a plan by Copies of such laws or regulations shall surveillance, reports. the Administrator. Information required be submitted with the plan unless: (a) Each plan shall include an under this paragraph must be included (1) They have been approved as inventory of all designated facilities, in the annual report required by portions of a preceding plan submitted including emission data for the § 51.321 of this chapter. under this subpart or as portions of an designated pollutants and information (f) Each progress report shall include: implementation plan submitted under related to emissions as specified in (1) Enforcement actions initiated section 110 of the Act; and appendix D to this part. Such data shall against designated facilities during the (2) The State demonstrates that the be summarized in the plan, and reporting period, under any standard of laws or regulations are applicable to the emission rates of designated pollutants performance or compliance schedule of designated pollutant(s) for which the from designated facilities shall be the plan. plan is submitted. correlated with applicable standards of (2) Identification of the achievement (c) The plan shall show that the legal performance. As used in this subpart, of any increment of progress required by authorities specified in this section are ‘‘correlated’’ means presented in such a the applicable plan during the reporting available to the State at the time of manner as to show the relationship period. submission of the plan. Legal authority between measured or estimated (3) Identification of designated adequate to meet the requirements of amounts of emissions and the amounts facilities that have ceased operation paragraphs (a)(3) and (4) of this section of such emissions allowable under during the reporting period. may be delegated to the State under applicable standards of performance. (4) Submission of emission inventory section 114 of the Act. (b) Each plan shall provide for data as described in paragraph (a) of this (d) A State governmental agency other monitoring the status of compliance section for designated facilities that than the State air pollution control with applicable standards of were not in operation at the time of plan agency may be assigned responsibility performance. Each plan shall, as a development but began operation for carrying out a portion of a plan if the minimum, provide for: during the reporting period. plan demonstrates to the (1) Legally enforceable procedures for (5) Submission of additional data as Administrator’s satisfaction that the requiring owners or operators of necessary to update the information State governmental agency has the legal

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authority necessary to carry out that apply, the Administrator may provide incorporation by reference into the plan, portion of the plan. for the application of less stringent including indication of the changes (e) The State may authorize a local standards of performance or longer made (such as redline/strikethrough) to agency to carry out a plan, or portion compliance schedules than those the existing approved plan, where thereof, within the local agency’s otherwise required by this section in applicable. The submittal must be a jurisdiction if the plan demonstrates to accordance with the criteria specified in copy of the official state regulation or the Administrator’s satisfaction that the § 60.24a(e). document signed, stamped and dated by local agency has the legal authority (f) Prior to promulgation of a federal the appropriate state official indicating necessary to implement the plan or plan under paragraph (d) of this section, that it is fully enforceable by the State. portion thereof, and that the the Administrator will provide the The effective date of the regulation or authorization does not relieve the State opportunity for at least one public document must, whenever possible, be of responsibility under the Act for hearing in either: indicated in the document itself. The carrying out the plan or portion thereof. (1) Each State that failed to submit a State’s electronic copy must be an exact required complete plan or plan revision, duplicate of the hard copy. If the § 60.27a Actions by the Administrator. or whose required plan or plan revision regulation/document provided by the (a) The Administrator may, whenever is disapproved by the Administrator; or State for approval and incorporation by he determines necessary, shorten the (2) Washington, DC or an alternate reference into the plan is a copy of an period for submission of any plan or location specified in the Federal existing publication, the State plan revision or portion thereof. Register. submission should, whenever possible, (b) After determination that a plan or (g) Each plan or plan revision that is include a copy of the publication cover plan revision is complete per the submitted to the Administrator shall be page and table of contents; requirements of § 60.27a(g), the reviewed for completeness as described (v) Evidence that the State followed Administrator will take action on the in paragraphs (g)(1) through (3) of this all of the procedural requirements of the plan or revision. The Administrator section. state’s laws and constitution in will, within twelve months of finding (1) General. Within 60 days of the conducting and completing the that a plan or plan revision is complete, Administrator’s receipt of a state adoption and issuance of the plan; approve or disapprove such plan or submission, but no later than 6 months (vi) Evidence that public notice was revision or each portion thereof. after the date, if any, by which a State given of the proposed change with (c) The Administrator will is required to submit the plan or procedures consistent with the promulgate, through notice-and- revision, the Administrator shall requirements of § 60.23a, including the comment rulemaking, a federal plan, or determine whether the minimum date of publication of such notice; portion thereof, at any time within two criteria for completeness have been met. (vii) Certification that public years after the Administrator: Any plan or plan revision that a State hearing(s) were held in accordance with (1) Finds that a State fails to submit submits to the EPA, and that has not the information provided in the public a required plan or plan revision or finds been determined by the EPA by the date notice and the State’s laws and that the plan or plan revision does not 6 months after receipt of the submission constitution, if applicable and satisfy the minimum criteria under to have failed to meet the minimum consistent with the public hearing paragraph (g) of this section; or criteria, shall on that date be deemed by requirements in § 60.23a; (2) Disapproves the required State operation of law to meet such minimum (viii) Compilation of public comments plan or plan revision or any portion criteria. Where the Administrator and the State’s response thereto; and thereof, as unsatisfactory because the determines that a plan submission does (ix) Such other criteria for applicable requirements of this subpart not meet the minimum criteria of this completeness as may be specified by the or an applicable subpart under this part paragraph, the State will be treated as Administrator under the applicable have not been met. not having made the submission and the emission guidelines. (d) The Administrator will requirements of § 60.27a regarding (3) Technical criteria. In order to be promulgate a final federal plan as promulgation of a federal plan shall deemed complete, a State plan must described in paragraph (c) of this apply. section unless the State corrects the (2) Administrative criteria. In order to contain each of the following technical deficiency, and the Administrator be deemed complete, a State plan must criteria: approves the plan or plan revision, contain each of the following (i) Description of the plan approach before the Administrator promulgates administrative criteria: and geographic scope; such federal plan. (i) A formal letter of submittal from (ii) Identification of each designated (e)(1) Except as provided in paragraph the Governor or her designee requesting facility, identification of standards of (e)(2) of this section, a federal plan EPA approval of the plan or revision performance for the designated promulgated by the Administrator thereof; facilities, and monitoring, under this section will prescribe (ii) Evidence that the State has recordkeeping and reporting standards of performance of the same adopted the plan in the state code or requirements that will determine stringency as the corresponding body of regulations; or issued the compliance by each designated facility; emission guideline(s) specified in the permit, order, consent agreement (iii) Identification of compliance final emission guideline published (hereafter ‘‘document’’) in final form. schedules and/or increments of under § 60.22a(a) and will require That evidence must include the date of progress; compliance with such standards as adoption or final issuance as well as the (iv) Demonstration that the State plan expeditiously as practicable but no later effective date of the plan, if different submittal is projected to achieve than the times specified in the emission from the adoption/issuance date; emissions performance under the guideline. (iii) Evidence that the State has the applicable emission guidelines; (2) Upon application by the owner or necessary legal authority under state (v) Documentation of state operator of a designated facility to law to adopt and implement the plan; recordkeeping and reporting which regulations proposed and (iv) A copy of the actual regulation, or requirements to determine the promulgated under this section will document submitted for approval and performance of the plan as a whole; and

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(vi) Demonstration that each emission 60.5740a What must I include in my plan facilities, the ‘‘pollutant that is subject standard is quantifiable, non- submittal? to the standard promulgated under duplicative, permanent, verifiable, and 60.5745a What are the timing requirements section 111 of the Act’’ shall be enforceable. for submitting my plan? considered to be the pollutant that 60.5750a What schedules, performance otherwise is subject to regulation under § 60.28a Plan revisions by the State. periods, and compliance periods must I include in my plan? the Act as defined in § 51.166(b)(48) of (a) Any revision to a state plan shall 60.5755a What standards of performance this chapter and in any State be adopted by such State after must I include in my plan? Implementation Plan (SIP) approved by reasonable notice and public hearing. 60.5760a What is the procedure for revising the EPA that is interpreted to For plan revisions required in response my plan? incorporate, or specifically incorporates, to a revised emission guideline, such 60.5765a What must I do to meet my plan § 51.166(b)(48) of this chapter. plan revisions shall be submitted to the obligations? (2) For the purposes of Administrator within three years, or Applicablity of Plans to Designated Facilities § 52.21(b)(50)(ii) of this chapter, with shorter if required by the Administrator, 60.5770a Does this subpart directly affect respect to GHG emissions from facilities after notice of the availability of a final EGU owners or operators in my State? regulated in the plan, the ‘‘pollutant that revised emission guideline is published 60.5775a What designated facilities must I is subject to the standard promulgated under § 60.22a. All plan revisions must address in my State plan? under section 111 of the Act’’ shall be be submitted in accordance with the 60.5780a What EGUs are excluded from considered to be the pollutant that procedures and requirements applicable being designated facilities? otherwise is subject to regulation under to development and submission of the 60.5785a What applicable monitoring, the Act as defined in § 52.21(b)(49) of original plan. recordkeeping, and reporting this chapter. (b) A revision of a plan, or any portion requirements do I need to include in my (3) For the purposes of § 70.2 of this plan for designated facilities? thereof, shall not be considered part of chapter, with respect to greenhouse gas an applicable plan until approved by Recordkeeping and Reporting Requirements emissions from facilities regulated in the Administrator in accordance with 60.5790a What are my recordkeeping the plan, the ‘‘pollutant that is subject this subpart. requirements? to any standard promulgated under 60.5795a What are my reporting and section 111 of the Act’’ shall be § 60.29a Plan revisions by the notification requirements? considered to be the pollutant that Administrator. 60.5800a How do I submit information otherwise is ‘‘subject to regulation’’ as After notice and opportunity for required by these Emission Guidelines to defined in § 70.2 of this chapter. public hearing in each affected State, the EPA? (4) For the purposes of § 71.2 of this the Administrator may revise any Definitions chapter, with respect to greenhouse gas provision of an applicable federal plan 60.5805a What definitions apply to this emissions from facilities regulated in if: subpart? the plan, the ‘‘pollutant that is subject (a) The provision was promulgated by to any standard promulgated under the Administrator; and Introduction section 111 of the Act’’ shall be (b) The plan, as revised, will be considered to be the pollutant that consistent with the Act and with the § 60.5700a What is the purpose of this subpart? otherwise is ‘‘subject to regulation’’ as requirements of this subpart. This subpart establishes emission defined in § 71.2 of this chapter. Subpart UUUU [Removed] guidelines and approval criteria for § 60.5710a Am I affected by this subpart? State plans that establish standards of ■ 3. Remove subpart UUUU. If you are the Governor of a State in performance limiting greenhouse gas the contiguous United States with one ■ 4. Add subpart UUUUa to read as (GHG) emissions from an affected steam or more designated facilities that follows: generating unit. An affected steam commenced construction on or before generating unit for the purposes of this January 8, 2014, you are subject to this Subpart UUUUa—Emission Guidelines subpart, is referred to as a designated for Greenhouse Gas Emissions From action and you must submit a State plan facility. These emission guidelines are to the U.S. Environmental Protection Existing Electric Utility Generating developed in accordance with section Units Agency (EPA) that implements the 111(d) of the Clean Air Act and subpart emission guidelines contained in this Introduction Ba of this part. To the extent any subpart. If you are the Governor of a requirement of this subpart is Sec. State in the contiguous United States inconsistent with the requirements of with no designated facilities for which 60.5700a What is the purpose of this subpart A or Ba of this part, the subpart? construction commenced on or before 60.5705a Which pollutants are regulated by requirements of this subpart will apply. January 8, 2014, in your State, you must this subpart? § 60.5705a Which pollutants are regulated submit a negative declaration letter in 60.5710a Am I affected by this subpart? by this subpart? place of the State plan. 60.5715a What is the review and approval process for my plan? (a) The pollutants regulated by this § 60.5715a What is the review and 60.5720a What if I do not submit a plan or subpart are greenhouse gases. The approval process for my plan? my plan is not approvable? emission guidelines for greenhouse The EPA will review your plan 60.5725a In lieu of a State plan submittal, gases established in this subpart are heat according to § 60.27a to approve or are there other acceptable option(s) for a rate improvements which target State to meet its CAA section 111(d) disapprove such plan or revision or achieving lower carbon dioxide (CO2) each portion thereof. obligations? emission rates at designated facilities. 60.5730a Is there an approval process for a (b) PSD and Title V Thresholds for § 60.5720a What if I do not submit a plan, negative declaration letter? Greenhouse Gases. my plan is incomplete, or my plan is not State Plan Requirements (1) For the purposes of approvable? 60.5735a What must I include in my § 51.166(b)(49)(ii) of this chapter, with (a) If you do not submit a complete or federally enforceable State plan? respect to GHG emissions from an approvable plan the EPA will

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develop a Federal plan for your State (4) of this section in your plan (b) You must follow the requirements according to § 60.27a. The Federal plan submittal. The final plan must meet the of subpart Ba of this part and will implement the emission guidelines requirements of, and include the demonstrate that they were met in your contained in this subpart. Owners and information required under, § 60.5740a. State plan. operators of designated facilities not (1) Identification of designated covered by an approved plan must facilities. Consistent with § 60.25a(a), § 60.5740a What must I include in my plan submittal? comply with a Federal plan you must identify the designated implemented by the EPA for the State. facilities covered by your plan and all (a) In addition to the components of (b) After a Federal plan has been designated facilities in your State that the plan listed in § 60.5735a, a state implemented in your State, it will be meet the applicability criteria in plan submittal to the EPA must include withdrawn when your State submits, § 60.5775a. In addition, you must the information in paragraphs (a)(1) and the EPA approves, a plan. include an inventory of CO2 emissions through (8) of this section. This from the designated facilities during the information must be submitted to the § 60.5725a In lieu of a State plan submittal, most recent calendar year for which EPA as part of your plan submittal but are there other acceptable option(s) for a data is available prior to the submission will not be codified as part of the State to meet its CAA section 111(d) of the plan. federally enforceable plan upon obligations? (2) Standards of performance. You approval by EPA. A State may meet its CAA section must provide a standard of performance (1) You must include a summary of 111(d) obligations only by submitting a for each designated facility according to how you determined each standard of State plan submittal or a negative § 60.5755a and compliance periods for performance for each designated facility declaration letter (if applicable). each standard of performance according according to § 60.5755a(a). You must § 60.5730a Is there an approval process to § 60.5750a. Each standard of include in the summary an evaluation of for a negative declaration letter? performance must reflect the degree of the applicability of each of the following emission limitation achievable through heat rate improvements to each The EPA has no formal review application of the heat rate process for negative declaration letters. designated facility: improvements described in § 60.5740a. (i) Neural network/intelligent Once your negative declaration letter In applying the heat rate improvements has been received, the EPA will place a sootblowers; described in § 60.5740a, a state may (ii) Boiler feed pumps; copy in the public docket and publish consider remaining useful life and other (iii) Air heater and duct leakage a notice in the Federal Register. If, at a factors, as provided for in § 60.24a(e). later date, a designated facility for (3) Identification of applicable control; which construction commenced on or monitoring, reporting, and (iv) Variable frequency drives; before January 8, 2014 is found in your recordkeeping requirements for each (v) Blade path upgrades for steam State, you will be found to have failed designated facility. You must include in turbines; to submit a plan as required, and a your plan all applicable monitoring, (vi) Redesign or replacement of Federal plan implementing the emission reporting and recordkeeping economizer; and guidelines contained in this subpart, requirements for each designated (vii) Improved operating and when promulgated by the EPA, will facility and the requirements must be maintenance practices. apply to that designated facility until consistent with or no less stringent than (2)(i) As part of the summary under you submit, and the EPA approves, a the requirements specified in paragraph (a)(1) of this section regarding State plan. § 60.5785a. the applicability of each heat rate State Plan Requirements (4) State reporting. Your plan must improvement to each designated include a description of the process, facility, you must include an evaluation § 60.5735a What must I include in my contents, and schedule for State of the following degree of emission federally enforceable State plan? reporting to the EPA about plan limitation achievable through (a) You must include the components implementation and progress, including application of the heat rate described in paragraphs (a)(1) through information required under § 60.5795a. improvements:

TABLE 1 TO PARAGRAPH (A)(2)(I)—MOST IMPACTFUL HRI MEASURES AND RANGE OF THEIR HRI POTENTIAL (%) BY EGU SIZE

< 200 MW 200–500 MW >500 MW HRI Measure Min Max Min Max Min Max

Neural Network/Intelligent Sootblowers ... 0.5 1.4 0.3 1.0 0.3 0.9 Boiler Feed Pumps ...... 0.2 0.5 0.2 0.5 0.2 0.5 Air Heater & Duct Leakage Control ...... 0.1 0.4 0.1 0.4 0.1 0.4 Variable Frequency Drives ...... 0.2 0.9 0.2 1.0 0.2 1.0 Blade Path Upgrade (Steam Turbine) ..... 0.9 2.7 1.0 2.9 1.0 2.9 Redesign/Replace Economizer ...... 0.5 0.9 0.5 1.0 0.5 1.0

Improved Operating and Maintenance (O&M) Practices ...... Can range from 0 to > 2.0% depending on the unit’s historical O&M practices.

(ii) In applying a standard of § 60.24a(e), you must include a (3) You must include a demonstration performance, if you consider remaining summary of the application of the that each designated facility’s standard useful life and other factors for a relevant factors in deriving a standard of of performance is quantifiable, designated facility as provided in performance.

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permanent, verifiable, and enforceable a compliance period that ensures the performance in an approved plan according to § 60.5755a. standard of performance reflects the revision. (4) Your plan demonstration must degree of emission limitation achievable (f) A designated facility’s standard of include the information listed in though application of the heat rate performance is enforceable if: paragraphs (a)(4)(i) through (v) of this improvements used to calculate the (1) A technically accurate limitation section as applicable. standard. The schedules and or requirement and the time period for (i) A summary of each designated compliance periods included in a plan the limitation or requirement are facility’s anticipated future operation must follow the requirements of specified; characteristics, including: § 60.24a. (2) Compliance requirements are (A) Annual generation; clearly defined; (B) CO emissions; § 60.5755a What standards of performance (3) The designated facility responsible 2 must I include in my plan? (C) Fuel use, fuel prices, fuel carbon for compliance and liable for violations content; (a) You must set a standard of can be identified; (D) Fixed and variable operations and performance for each designated facility (4) Each compliance activity or maintenance costs; within the state. measure is enforceable as a practical (E) Heat rates; and (1) The standard of performance must matter; and (F) Electric generation capacity and be an emission performance rate relating (5) The Administrator, the State, and capacity factors. mass of CO2 emitted per unit of energy third parties maintain the ability to (ii) A timeline for implementation. (e.g. pounds of CO2 emitted per MWh). enforce against violations (including if a (iii) All wholesale electricity prices. (2) In establishing any standard of designated facility does not meet its (iv) A time period of analysis, which performance, you must consider the standard of performance based on its must extend through at least 2035. applicability of each of the heat rate emissions) and secure appropriate (v) A demonstration that each improvements and associated degree of corrective actions, in the case of the standard of performance included in emission limitation achievable included Administrator pursuant to CAA sections your plan meets the requirements of in § 60.5740a(a)(1) and (2) to the 113(a) through (h), in the case of a State, § 60.5755a. designated facility. You must include a pursuant to its plan, State law or CAA (5) Your plan submittal must include demonstration in your plan submission section 304, as applicable, and in the certification that a hearing required for how you considered each heat rate case of third parties, pursuant to CAA under § 60.23a(c)on the State plan was improvement and associated degree of section 304. held, a list of witnesses and their emission limitation achievable in § 60.5760a What is the procedure for organizational affiliations, if any, calculating each standard of revising my plan? appearing at the hearing, and a brief performance. written summary of each presentation or (i) In applying a standard of EPA-approved plans can be revised written submission, pursuant to the performance to any designated facility, only with approval by the requirements of § 60.23a(g). you may consider the source-specific Administrator. The Administrator will (6) Your plan submittal must include factors included in § 60.24a(e). approve a plan revision if it is satisfactory with respect to the supporting material for your plan (ii) If you consider source-specific applicable requirements of this subpart including: factors to apply a standard of and any applicable requirements of (i) Materials demonstrating the State’s performance, you must include a subpart Ba of this part, including the legal authority to implement and demonstration in your plan submission requirements in § 60.5740a. If one (or enforce each component of its plan, for how you considered such factors. more) of the elements of the plan set in including standards of performance, (b) Standards of performance for pursuant to the requirements of § 60.5735a require revision, a request designated facilities included under must be submitted to the Administrator §§ 60.26a and 60.5740a(a)(6); your plan must be demonstrated to be (ii) Materials supporting calculations indicating the proposed revisions to the quantifiable, verifiable, permanent, and plan. for designated facility’s standards of enforceable with respect to each performance according to § 60.5755a; designated facility. The plan submittal § 60.5765a What must I do to meet my plan and must include the methods by which obligations? (iii) Any other materials necessary to each standard of performance meets To meet your plan obligations, you support evaluation of the plan by the each of the requirements in paragraphs must demonstrate that your designated EPA. (c) through (f) of this section. facilities are complying with their (b) You must submit your final plan (c) A designated facility’s standard of standards of performance as specified in to the EPA according to § 60.5800a. performance is quantifiable if it can be § 60.5755a. § 60.5745a What are the timing reliably measured in a manner that can be replicated. Applicability of Plans to Designated requirements for submitting my plan? Facilities (d) A designated facility’s standard of You must submit a plan with the performance is verifiable if adequate information required under § 60.5740a § 60.5770a Does this subpart directly monitoring, recordkeeping and affect EGU owners or operators in my by July 8, 2022. reporting requirements are in place to State? § 60.5750a What schedules and enable the State and the Administrator (a) This subpart does not directly compliance periods must I include in my to independently evaluate, measure, and affect EGU owners or operators in your plan? verify compliance with the standard of State. However, designated facility The EPA is superseding the performance. owners or operators must comply with requirement at § 60.22a(b)(5) for EPA to (e) A designated facility’s standard of the plan that a State develops to provide compliance timelines in the performance is permanent if the implement the emission guidelines emission guidelines. Each standard of standard of performance must be met for contained in this subpart. performance for designated facilities each compliance period, unless it is (b) If a State does not submit a plan regulated under the plan must include replaced by another standard of to implement and enforce the emission

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guidelines contained in this subpart by unit(s), IGCC(s), or stationary plan requirements, supporting July 8, 2022, or the date that EPA combustion turbine(s) where the documentation, and the status of disapproves a final plan, the EPA will effective generation capacity meeting the plan requirements defined implement and enforce a Federal plan, (determined based on a prorated output in the plan. After the effective date of as provided in § 60.27a(c), applicable to of the base load rating of each steam the plan, States must keep records of all each designated facility within the State generating unit, IGCC, or stationary information relied upon in support of that commenced construction on or combustion turbine) is 25 MW or less; any continued demonstration that the before January 8, 2014. (7) An EGU that is a municipal waste final standards of performance are being combustor unit that is subject to subpart achieved. § 60.5775a What designated facilities must Eb of this part; (b) You must keep records of all data I address in my State plan? (8) An EGU that is a commercial or submitted by the owner or operator of (a) The EGUs that must be addressed industrial solid waste incineration unit each designated facility that is used to by your plan are any designated facility that is subject to subpart CCCC of this determine compliance with each that commenced construction on or part; or designated facility emissions standard before January 8, 2014. (9) A steam generating unit that fires or requirements in an approved State (b) A designated facility is a steam more than 50 percent non-fossil fuels. plan, consistent with the designated generating unit that meets the relevant (b) [Reserved] facility requirements listed in applicability conditions specified in § 60.5785a. § 60.5785a What applicable monitoring, paragraphs (b)(1) through (3) of this (c) If your State has a requirement for section, as applicable, of this section recordkeeping, and reporting requirements all hourly CO2 emissions and generation except as provided in § 60.5780a. do I need to include in my plan for designated facilities? information to be used to calculate (1) Serves a generator connected to a (a) Your plan must include compliance with an annual emissions utility power distribution system with a standard for designated facilities, any nameplate capacity greater than 25 MW- monitoring, recordkeeping, and reporting requirements for designated information that is submitted by the net (i.e., capable of selling greater than owners or operators of designated 25 MW of electricity). facilities. To satisfy this requirement, you have the option of either: facilities to the EPA electronically (2) Has a base load rating (i.e., design pursuant to requirements in part 75 of heat input capacity) greater than 260 (1) Specifying that sources must report emission and electricity this chapter meets the recordkeeping GJ/hr (250 MMBtu/hr) heat input of requirement of this section and you are fossil fuel (either alone or in generation data according to part 75 of this chapter; or not required to keep records of combination with any other fuel). information that would be in duplicate (3) Is an electric utility steam (2) Including an alternative monitoring, recordkeeping, and of paragraph (b) of this section. generating unit that burns coal for more (d) You must keep records at a than 10.0 percent of the average annual reporting program that includes specifications for the following program minimum for 5 years from the date the heat input during the 3 previous record is used to determine compliance calendar years. elements: (i) Monitoring plans that specify the with a standard of performance or plan § 60.5780a What EGUs are excluded from monitoring methods, systems, and requirement. Each record must be in a being designated facilities? formulas that will be used to measure form suitable and readily available for expeditious review. (a) An EGU that is excluded from CO2 emissions; being a designated facility is: (ii) Monitoring methods to § 60.5795a What are my reporting and (1) An EGU that is subject to subpart continuously and accurately measure all notification requirements? s TTTT of this part as a result of CO2 emissions, CO2 emission rate , and You must submit an annual report as commencing construction, other data necessary to determine required under § 60.25a(e) and (f). reconstruction or modification after the compliance or assure data quality; subpart TTTT applicability date; (iii) Quality assurance test § 60.5800a How do I submit information (2) A steam generating unit that is requirements to ensure monitoring required by these Emission Guidelines to subject to a federally enforceable permit systems provide reliable and accurate the EPA? limiting annual net-electric sales to one- data for assessing and verifying (a) You must submit to the EPA the third or less of its potential electric compliance; information required by these emission output, or 219,000 MWh or less; (iv) Recordkeeping requirements; guidelines following the procedures in (3) A stationary combustion turbine (v) Electronic reporting procedures paragraphs (b) through (e) of this section that meets the definition of a simple and systems; and unless you submit through the cycle stationary combustion turbine, a (vi) Data validation procedures for procedure described in paragraph (f) of combined cycle stationary combustion ensuring data are complete and this section. turbine, or a combined heat and power calculated consistent with program (b) All negative declarations, State combustion turbine; rules, including procedures for plan submittals, supporting materials (4) An IGCC unit; determining substitute data in instances that are part of a State plan submittal, (5) A non-fossil unit (i.e., a unit that where required data would otherwise be any plan revisions, and all State reports is capable of combusting 50 percent or incomplete. required to be submitted to the EPA by more non-fossil fuel) that has always (b) [Reserved] the State plan may be reported through limited the use of fossil fuels to 10 Recordkeeping and Reporting EPA’s electronic reporting system to be percent or less of the annual capacity Requirements named and made available at a later factor or is subject to a federally date. enforceable permit limiting fossil fuel § 60.5790a What are my recordkeeping (c) Only a submittal by the Governor use to 10 percent or less of the annual requirements? or the Governor’s designee by an capacity factor; (a) You must keep records of all electronic submission through SPeCS (6) An EGU that serves a generator information relied upon in support of shall be considered an official submittal along with other steam generating any demonstration of plan components, to the EPA under this subpart. If the

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Governor wishes to designate another Annual capacity factor means the gasification system construction, startup responsible official the authority to ratio between the actual heat input to an and commissioning, shutdown, or submit a State plan, the EPA must be EGU during a calendar year and the repair. No solid fuel is directly burned notified via letter from the Governor potential heat input to the EGU had it in the unit during operation. prior to the July 8, 2022, deadline for been operated for 8,760 hours during a Intelligent sootblower means an plan submittal so that the official will calendar year at the base load rating. automated system that use process have the ability to submit a plan in the Base load rating means the maximum measurements to monitor the heat SPeCS. If the Governor has previously amount of heat input (fuel) that an EGU transfer performance and strategically delegated authority to make CAA can combust on a steady-state basis, as allocate steam to specific areas to submittals on the Governor’s behalf, a determined by the physical design and remove ash buildup at a steam State may submit documentation of the characteristics of the EGU at ISO generating unit. delegation in lieu of a letter from the conditions. ISO conditions means 288 Kelvin ° Governor. The letter or documentation Boiler feed pump (or boiler feedwater (15 C), 60 percent relative humidity must identify the designee to whom pump) means a device used to pump and 101.3 kilopascals pressure. authority is being designated and must feedwater into a steam boiler at an EGU. Nameplate capacity means, starting include the name and contact The water may be either freshly from the initial installation, the information for the designee and also supplied or returning condensate maximum electrical generating output identify the State plan preparers who produced from condensing steam that a generator, prime mover, or other will need access to the EPA electronic produced by the boiler. electric power production equipment reporting system. A State may also CO2 emission rate means for a under specific conditions designated by the manufacturer is capable of submit the names of the State plan designated facility, the reported CO2 preparers via a separate letter prior to emission rate of a designated facility producing (in MWe, rounded to the the designation letter from the Governor used by a designated facility to nearest tenth) on a steady-state basis and during continuous operation (when in order to expedite the State plan demonstrate compliance with its CO2 not restricted by seasonal or other administrative process. Required standard of performance. deratings) as of such installation as contact information for the designee and Combined cycle unit means an specified by the manufacturer of the preparers includes the person’s title, electric generating unit that uses a equipment, or starting from the organization, and email address. stationary combustion turbine from completion of any subsequent physical (d) The submission of the information which the heat from the turbine exhaust change resulting in an increase in the by the authorized official must be in a gases is recovered by a heat recovery maximum electrical generating output non-editable format. In addition to the steam generating unit to generate that the equipment is capable of non-editable version all plan additional electricity. producing on a steady-state basis and components designated as federally Combined heat and power unit or CHP unit (also known as during continuous operation (when not enforceable must also be submitted in restricted by seasonal or other an editable version. ‘‘cogeneration’’) means an electric generating unit that uses a steam- deratings), such increased maximum (e) You must provide the EPA with amount (in MWe, rounded to the nearest non-editable and editable copies of any generating unit or stationary combustion turbine to simultaneously produce both tenth) as of such completion as submitted revision to existing approved specified by the person conducting the federally enforceable plan components. electric (or mechanical) and useful thermal output from the same primary physical change. The editable copy of any such submitted Natural gas means a fluid mixture of plan revision must indicate the changes energy source. Compliance period means a discrete hydrocarbons (e.g., methane, ethane, or made at the State level, if any, to the time period for a designated facility to propane), composed of at least 70 existing approved federally enforceable comply with a standard of performance. percent methane by volume or that has plan components, using a mechanism Designated facility means a steam a gross calorific value between 35 and such as redline/strikethrough. These generating unit that meets the relevant 41 megajoules (MJ) per dry standard changes are not part of the State plan applicability conditions in section cubic meter (950 and 1,100 Btu per dry until formal approval by EPA. § 60.5775a, except as provided in standard cubic foot), that maintains a (f) If, in lieu of the requirements § 60.5780a. gaseous State under ISO conditions. In described in paragraphs (b) through (e) Economizer means a heat exchange addition, natural gas contains 20.0 of this section, you choose to submit a device used to capture waste heat from grains or less of total sulfur per 100 paper copy or an electronic version by boiler flue gas which is then used to standard cubic feet. Finally, natural gas other means you must confer with your heat the boiler feedwater. does not include the following gaseous EPA Regional Office regarding the Fossil fuel means natural gas, fuels: Landfill gas, digester gas, refinery additional guidelines for submitting petroleum, coal, and any form of solid gas, sour gas, blast furnace gas, coal- your plan. fuel, liquid fuel, or gaseous fuel derived derived gas, producer gas, coke oven Definitions from such material to create useful heat. gas, or any gaseous fuel produced in a Integrated gasification combined process which might result in highly § 60.5805a What definitions apply to this cycle facility or IGCC means a combined variable sulfur content or heating value. subpart? cycle facility that is designed to burn Net electric output means the amount As used in this subpart, all terms not fuels containing 50 percent (by heat of gross generation the generator(s) defined herein will have the meaning input) or more solid-derived fuel not produce (including, but not limited to, given them in the Clean Air Act and in meeting the definition of natural gas output from steam turbine(s), subparts TTTT, A, and Ba of this part. plus any integrated equipment that combustion turbine(s), and gas Air Heater means a device that provides electricity or useful thermal expander(s)), as measured at the recovers heat from the flue gas for use output to either the affected facility or generator terminals, less the electricity in pre-heating the incoming combustion auxiliary equipment. The Administrator used to operate the plant (i.e., auxiliary air and potentially for other uses such may waive the 50 percent solid-derived loads); such uses include fuel handling as coal drying. fuel requirement during periods of the equipment, pumps, fans, pollution

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control equipment, other electricity 298.15 Kelvin (25 °C, 77 °F) and 100.0 Useful thermal output means the needs, and transformer losses as kilopascals (14.504 psi, 0.987 atm) thermal energy made available for use in measured at the transmission side of the pressure. The enthalpy of water at SATP any heating application (e.g., steam step up transformer (e.g., the point of conditions is 50 Btu/lb. delivered to an industrial process for a sale). State agent means an entity acting on heating application, including thermal Net energy output means: behalf of the State, with the legal cooling applications) that is not used for (1) The net electric or mechanical authority of the State. electric generation, mechanical output output from the affected facility, plus Stationary combustion turbine means at the designated facility, to directly 100 percent of the useful thermal output all equipment, including but not limited enhance the performance of the measured relative to SATP conditions to the turbine engine, the fuel, air, designated facility (e.g., economizer that is not used to generate additional lubrication and exhaust gas systems, output is not useful thermal output, but electric or mechanical output or to control systems (except emissions thermal energy used to reduce fuel enhance the performance of the unit control equipment), heat recovery moisture is considered useful thermal (e.g., steam delivered to an industrial system, fuel compressor, heater, and/or output), or to supply energy to a process for a heating application). pump, post-combustion emissions (2) For combined heat and power pollution control device at the control technology, and any ancillary facilities where at least 20.0 percent of designated facility. Useful thermal components and sub-components the total gross or net energy output output for designated facility(s) with no comprising any simple cycle stationary consists of electric or direct mechanical condensate return (or other thermal output and at least 20.0 percent of the combustion turbine, any combined energy input to the designated total gross or net energy output consists cycle combustion turbine, and any facility(s)) or where measuring the of useful thermal output on a 12- combined heat and power combustion energy in the condensate (or other operating month rolling average basis, turbine based system plus any thermal energy input to the designated the net electric or mechanical output integrated equipment that provides facility(s)) would not meaningfully from the designated facility divided by electricity or useful thermal output to impact the emission rate calculation is 0.95, plus 100 percent of the useful the combustion turbine engine, heat measured against the energy in the thermal output; (e.g., steam delivered to recovery system or auxiliary equipment. thermal output at SATP conditions. an industrial process for a heating Stationary means that the combustion Designated facility(s) with meaningful application). turbine is not self-propelled or intended energy in the condensate return (or Neural network means a computer to be propelled while performing its other thermal energy input to the model that can be used to optimize function. It may, however, be mounted designated facility) must measure the combustion conditions, steam on a vehicle for portability. If a energy in the condensate and subtract temperatures, and air pollution at steam stationary combustion turbine burns any that energy relative to SATP conditions generating unit. solid fuel directly it is considered a from the measured thermal output. Simple cycle combustion turbine steam generating unit. Variable frequency drive means an means any stationary combustion Steam generating unit means any adjustable-speed drive used on induced turbine which does not recover heat furnace, boiler, or other device used for draft fans and boiler feed pumps to from the combustion turbine engine combusting fuel and producing steam control motor speed and torque by exhaust gases for purposes other than (nuclear steam generators are not varying motor input frequency and enhancing the performance of the included) plus any integrated voltage. stationary combustion turbine itself. equipment that provides electricity or Standard ambient temperature and useful thermal output to the affected [FR Doc. 2019–13507 Filed 7–5–19; 8:45 am] pressure (SATP) conditions means facility or auxiliary equipment. BILLING CODE 6560–50–P

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Part III

Department of Commerce

National Oceanic and Atmospheric Administration 15 CFR Part 922 Mallows Bay-Potomac River National Marine Sanctuary Designation; Final Rule

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DEPARTMENT OF COMMERCE shall not take effect. The public can archaeological, cultural, ecological, and track the days of Congressional session aesthetic resources and qualities, and National Oceanic and Atmospheric at the following website: https:// offers opportunities for conservation, Administration www.congress.gov/days-in-session. After education, recreation, and research. Its the close of the forty-five days of maritime landscape is home to a diverse 15 CFR Part 922 continuous session of Congress, NOAA collection of historic shipwrecks that [Docket No. 160907827–7832–02] will publish a document announcing date back to the Civil War, and the effective date of the final regulations potentially to the American RIN 0648–BG02 in the Federal Register. Revolutionary War, totaling more than ADDRESSES: Copies of the final 100 known vessels. Included among Mallows Bay-Potomac River National these vessels are the sunken remains of Marine Sanctuary Designation environmental impact statement and final management plan (FEIS/FMP) the largest ‘‘Ghost Fleet’’, wooden AGENCY: Office of National Marine described in this rule and the record of steamships built for the U.S. Emergency Sanctuaries (ONMS), National Ocean decision (ROD) are available upon Fleet during World War I (WWI). The Service (NOS), National Oceanic and request to: Mallows Bay-Potomac River fleet was constructed at more than 40 Atmospheric Administration (NOAA), National Marine Sanctuary, c/o NOAA shipyards in 17 states as part of a Department of Commerce (DOC). Office of National Marine Sanctuaries, massive national wartime mobilization. The sanctuary’s archaeological and ACTION: Final rule. 1305 East West Hwy., 11th Floor, Silver Spring, MD 20910, Attention: Paul cultural resources cover centuries of SUMMARY: The National Oceanic and Orlando, Regional Coordinator. The history dating back from the earliest Atmospheric Administration (NOAA) FEIS/FMP is also available for viewing American Indian presence in the region issues final regulations to implement and download at https:// approximately 12,000 years ago to the the designation of the Mallows Bay- sanctuaries.noaa.gov/mallows- Revolutionary, Civil and two World Potomac River National Marine potomac/. Wars, as well as successive regimes of Potomac fishing industries. The Sanctuary (MPNMS or sanctuary). The FOR FURTHER INFORMATION CONTACT: Paul significance of this area is recognized area is 18 square miles of waters and Orlando, Regional Coordinator, Office of submerged lands encompassing and through its listing on the National National Marine Sanctuaries at 240– Register of Historic Places (National surrounding the Mallows Bay area of the 460–1978, [email protected], or tidal Potomac River. The area is located Register Listing Number 15000173, Mallows Bay-Potomac River National April 24, 2015). entirely within Maryland state waters, Marine Sanctuary, c/o NOAA Office of adjacent to the Nanjemoy Peninsula of The Maryland Department of Natural National Marine Sanctuaries, 1305 East Resources (DNR), Maryland Historical Charles County, Maryland. The West Hwy., 11th Floor, Silver Spring, sanctuary protects nationally-significant Trust (MHT), Maryland Department of MD 20910, Attention: Paul Orlando, Tourism, and Charles County, MD, maritime cultural heritage resources, Regional Coordinator. including the fragile, historic remains of collaborated with community partners SUPPLEMENTARY INFORMATION: more than 100 World War I (WWI)-era to implement conservation and compatible public access strategies in U.S. Emergency Fleet Corporation I. Background and around Mallows Bay, consistent (USEFC) wooden steamships known as The National Marine Sanctuaries Act with numerous planning and the ‘‘Ghost Fleet,’’ vessels related to the (NMSA; 16 U.S.C. 1431 et seq.) implementation documents. In 2010, historic ship-breaking operations, other authorizes the Secretary of Commerce DNR purchased a portion of land non-USEFC vessels of historic (Secretary) to designate and protect as adjacent to Mallows Bay and made it significance, and related maritime national marine sanctuaries areas of the available by a lease agreement to debris fields. The area also includes marine environment that are of special Charles County for the creation and Native American sites, remains of national significance due to their management of Mallows Bay County historic fisheries operations, and conservation, recreational, ecological, Park, the main launch point for access Revolutionary and Civil War historical, scientific, cultural, to the historic shipwrecks. Pursuant to battlescapes. The significance of the archaeological, educational, or aesthetic the National Historic Preservation Act area is recognized through its listing on qualities. Day-to-day management of (NHPA), the MHT has stewardship and the National Register of Historic Places national marine sanctuaries has been oversight responsibility for the (National Register Listing Number delegated by the Secretary to NOAA’s shipwrecks, along with hundreds of 15000173, April 24, 2015). NOAA, the Office of National Marine Sanctuaries other historic non-shipwreck sites State of Maryland, and Charles County, (ONMS). The primary objective of the around the state. DNR manages the Maryland, will jointly manage MPNMS. NMSA is to protect the sanctuary waterbody and associated ecosystem DATES: Effective Date: Pursuant to system’s biological and cultural resources, including land use, resource section 304(b) of the National Marine resources, such as coral reefs, marine conservation and extraction activities. Sanctuaries Act (NMSA) (16 U.S.C. animals, historic shipwrecks, historic The lands on either side of Mallows Bay 1434(b)), the designation and structures, and archaeological sites. County Park are held by the U.S. regulations shall take effect and become 1. Mallows Bay-Potomac River National Department of Interior, Bureau of Land final after the close of a review period Management, and a private citizen. of forty-five days of continuous session Marine Sanctuary of Congress, beginning on the date on The Mallows Bay-Potomac River 2. Need for Action which this document is published, National Marine Sanctuary is an 18- The designation would allow NOAA unless the Governor of the State of square-mile area of the tidal Potomac to complement current state-led efforts Maryland certifies to the Secretary of River located 40 miles south of to conserve and manage the nationally Commerce during that same review Washington, DC, off the Nanjemoy significant maritime cultural heritage period that the designation or any of its Peninsula of Charles County, Maryland. resources in the sanctuary while terms is unacceptable, in which case the It is an area of national significance enhancing public awareness and designation or any unacceptable term featuring unique historical, appreciation. The designation would

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also facilitate, to the extent compatible coalition of community groups www.regulations.gov web portal. These with the primary objective of resource submitted a nomination to NOAA public scoping comments were used by protection, all public and private uses seeking designation of Mallows Bay- NOAA in preparing the proposed (including recreation and tourism), as Potomac River as a national marine sanctuary regulations and draft directed by the NMSA. The threats to sanctuary. The nomination cited environmental impact statement and these resources are related to actions or conservation goals to protect and draft management plan (DEIS/DMP) conditions that result in the damage or conserve the fragile, historic remains of associated with the proposed sanctuary loss of the historic resources. Over time, the Nation’s cultural heritage as well as designation. the opportunities to expand public both intentional and unintentional b. Designation Process direct damage has occurred from access, recreation, tourism, research, breaking, relocation of artifacts, defacing and education to the area. The On January 9, 2017, NOAA published and physical alteration, burning, and nomination was endorsed by a diverse a document in the Federal Register removal of historic artifacts from the coalition of organizations and announcing the proposed designation of area. Additionally, indirect damage to individuals at local, state, regional, and approximately 52 square miles of waters the resources has occurred from the national levels including elected of the tidal Potomac River as a national accumulation and entanglement of officials, businesses, Native American, marine sanctuary (82 FR 2254). NOAA marine debris and from weather-related environmental, recreation, conservation, also provided public notice of the processes such as wind, flood, and ice fishing, tourism, museums, historical availability of the related DEIS/DMP (82 events. societies, and education groups. The FR 2254; 82 FR 1733). All three NOAA will concentrate on the nomination identified opportunities for documents (proposed rule, DEIS, and protection, access and interpretation of NOAA to protect, study, interpret, and DMP) were prepared in close the maritime cultural features of the manage the area’s unique resources, consultation with the State of Maryland area, including the Ghost Fleet, other including by building on existing local, and Charles County, Maryland. NOAA vessels of historic significance, and county, and State of Maryland efforts to opened an 81-day public comment related maritime infrastructure. The manage the area for the protection of period on the proposed rule, DEIS, and State of Maryland currently has a shipwrecks. NOAA’s review of the DMP, which closed on March 31, 2017. comprehensive set of management nomination against the criteria and During the comment period, NOAA also measures for the protection of the considerations of the SNP, including the held two separate public meetings in La natural environment, including wildlife, requirement for broad-based community Plata, Maryland and in Arnold, fish, birds, water quality, and habitat. support indicated strong merit in Maryland. As such, NOAA’s sanctuary regulations proposing this area as a national marine All written comments are available at will focus only on the protection of the sanctuary. https://www.regulations.gov/docket? shipwrecks and associated maritime NOAA completed its review of the D=NOAA-NOS-2016-0149. NOAA’s cultural heritage resources. nomination and, on January 12, 2015, responses to public comments are Although the Maryland Submerged added the area to the inventory of included in Appendix C of the final Archaeological Historic Property Act nominations that are eligible for environmental impact statement (FEIS) (Md. Code Ann., State Fin. & Proc. designation. All nominations submitted and final management plan (FMP), sections 5A–333 et seq.) provides a to NOAA can be found at: https:// which was made available on May 31, basic level of protection for maritime www.nominate.noaa.gov/nominations/. 2019 (84 FR 25257), and in Section IV On October 7, 2015, NOAA initiated cultural heritage resources in Mallows of this document. the public scoping process with the Bay and adjacent areas of the Potomac publication of a Notice of Intent in the II. Changes From Proposed to Final River, the sanctuary will allow NOAA’s Federal Register (NOI; 80 FR 60634). Regulations management under the NMSA to The NOI solicited public input on the Based on public comments received supplement and complement the proposed designation and informing the between January and March 2017, existing authority and the current public of the Agency’s intentions to internal deliberations, interagency management framework in the area. The prepare a draft environmental impact consultations, discussions with state- sanctuary will address ongoing threats statement (DEIS) evaluating alternatives recognized Indian tribes, consultation to the maritime cultural heritage related to the proposed designation of with the Department of Navy (DoN) (as resources while providing opportunities MPNMS under the NMSA. That a cooperating agency in the preparation for research, education, recreation, and announcement initiated a 90-day public of the environmental impact statement), tourism through coordinated and comment period during which NOAA meetings with constituent groups, and comprehensive management and solicited additional input on the scale evaluation of this input with the State conservation of the resources in and scope of the proposed sanctuary, of Maryland and Charles County, NOAA collaboration with the State of Maryland including ideas presented in the has made the following changes to the and Charles County. NOAA will also community nomination. The NOI also proposed rule. NOAA has also made carry out education, science, and announced NOAA’s intent to fulfill its conforming changes to the FEIS/FMP. interpretative programs that describe the responsibilities under the requirements relationship between the shipwreck of the National Historic Preservation Act 1. Sanctuary Boundary structures and the natural ecosystem. (NHPA). In response to public comments and 3. Procedural History In November 2015, NOAA held two discussions with the State of Maryland, public meetings and provided Charles County, Maryland, the DoN, a. Sanctuary Nomination and Public additional opportunities for public NOAA decided to adopt Alternative B Scoping comments by mail and through a web in the FEIS and designate 18 square On September 16, 2014, pursuant to portal (https://www.regulations.gov/ miles of waters and submerged lands section 304 of the NMSA and the docket?D=NOAA-NOS-2015-0111). The encompassing and surrounding the Sanctuary Nomination Process (SNP; 79 comment period closed on January 15, Mallows Bay area of the tidal Potomac FR 33851), the former Governor of 2016. All comments received, through River. The boundary begins at the mean Maryland, Charles County, and a any of these methods, are posted on the high tide level on the Maryland side,

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extends across the Potomac River to the national regulations as described in https://sanctuaries.noaa.gov/mallows- Virginia-Maryland state boundary lines, detail below. potomac/. and follows the boundary of the NOAA is concurrently working on 4. Definitions Mallows Bay-Widewater Historic and designating a separate new national Archeological District in the National marine sanctuary in Wisconsin’s Lake NOAA narrowly defines ‘‘sanctuary Register of Historic Places. The area also Michigan waters as part of a separate resources’’ for MPNMS to include only closely matches the boundary submitted rulemaking process (82 FR 2269). The the maritime cultural heritage resources to NOAA by the Governor of Maryland regulations implementing the of the sanctuary in accordance with the in the sanctuary nomination package. designation of Wisconsin—Lake purpose of the designation. The The area contains a concentration of 142 Michigan National Marine Sanctuary definition does not include biological historic USEFC vessels, vessels related would be published in subpart T. and ecological resources of the area already managed by the State of to historic ship-breaking activities, other 2. Sanctuary Name non-USEFC vessels of historic Maryland. Creating this site-specific significance, and related maritime The name of the sanctuary is definition requires NOAA to modify the debris fields. The area also includes ‘‘Mallows Bay-Potomac River National national definition of ‘‘sanctuary Native American sites, remains of Marine Sanctuary’’ and is abbreviated as resource’’ in the national regulations at historic fisheries operations such as MPNMS. The name is based on the § 922.3 to add an additional sentence sturgeon and caviar industries, and nomination submitted by the that defines the site-specific definition Revolutionary and Civil War community. for MPNMS at § 922.201(a). This is battlescapes. 3. Sanctuary Boundary similar to the approach taken for other national marine sanctuaries that do not 2. Department of Defense Activities The Mallows Bay-Potomac River share the full national ‘‘sanctuary NOAA, in consultation with the DoN, National Marine Sanctuary consists of resource’’ definition, such as Thunder has established a framework for an area of approximately 18 square Bay National Marine Sanctuary. MPNMS and DoD to co-exist. In miles of waters of the State of Maryland NOAA also adds a definition in the developing the proposed rules, NOAA and the submerged lands thereunder MPNMS regulations at § 922.201(a) for did not anticipate that many, if any, associated with the underwater cultural sanctuary resource that uses the current DoD activities would adversely resources in the Potomac River. The national definition for ‘‘historical impact sanctuary resources. However, western boundary of the sanctuary resources’’ set forth in § 922.3 and following interagency consultation with approximates the border between the expands the site-specific definition of DoD components (including DoN, the Commonwealth of Virginia and the sanctuary resource to specifically Marine Corps, and the U.S. Army), State of Maryland along the western provide examples of the types of NOAA revised §§ 922.203(c) and side of the Potomac River and begins at resources in MPNMS that fall within 922.204 and the terms of designation set Point 1 north of the mouth of Aquia that definition. The national definition forth in appendix B to the MPNMS Creek in Stafford County, Virginia, near of ‘‘historical resources’’ at § 922.3 regulations at 15 CFR part 922, subpart Brent Point. From this point the includes resources that possess S. In the final regulations, NOAA: (a) boundary continues to the north historical, cultural, archaeological or Clarifies the extent to which the approximating the border between paleontological significance, such as sanctuary prohibitions may apply to Virginia and Maryland cutting across sites, contextual information, structures, DoD activities; (b) clarifies the the mouths of streams and creeks districts, and objects significantly requirement for DoD to engage in NMSA passing through the points in numerical associated with or representative of section 304(d) consultation; and (c) order until it reaches Point 40 north of earlier people, cultures, maritime exempts DoD from the application of Tank Creek. From this point the heritage, and human activities and emergency regulations issued by NOAA sanctuary boundary continues east events. These historical resources also pursuant to § 922.204. across the Potomac River in a straight include ‘‘cultural resources,’’ line towards Point 41 until it intersects ‘‘submerged cultural resources,’’ and III. Summary of Final Regulations for the Maryland shoreline just north of also include ‘‘historical properties,’’ as MPNMS Sandy Point in Charles County, MD. defined in the National Historic With this final rule, NOAA is From this intersection the sanctuary Preservation Act. implementing the following regulations boundary then follows the Maryland The MPNMS definition of sanctuary for MPNMS. shoreline south around Mallows Bay, resources is then defined in § 922.201 to Blue Banks, and Wades Bay cutting include historical resources as defined 1. Add New Subpart S to Existing across the mouths of creeks and streams by § 922.3. This includes any sunken National Marine Sanctuary Program along the eastern shoreline of the watercraft and any associated rigging, Regulations Potomac River until it intersects the line gear, fittings, trappings, and equipment. NOAA amends 15 CFR part 922 by formed between Point 42 and Point 43 It also includes personal property of the adding a new subpart (subpart S) that just south of Smith Point. Finally, from officers, crew, and passengers, and any contains site-specific regulations for this intersection the sanctuary boundary cargo, as well as any submerged or MPNMS. This subpart includes the crosses the Potomac River to the west in partially submerged prehistoric, boundary, contains definitions of a straight line until it reaches Point 43 historic, cultural remains, such as common terms used in the new subpart, north of the mouth of Aquia Creek in docks, piers, fishing-related remains provides a framework for joint Stafford County, Virginia, near Brent (e.g. weirs, fish-traps) or other cultural management of the sanctuary, identifies Point. heritage materials. For MPNMS, prohibited activities and exceptions, The detailed legal boundary sanctuary resource also means any and establishes procedures for description is included in § 922.200 and archaeological, historical, and cultural certification of existing uses, permitting the coordinates are located in 15 CFR remains associated with or otherwise prohibited activities, and part 922, subpart S, appendix A. A map representative of historic or prehistoric emergency regulations. Several of the area is shown in the FEIS American Indians and historic groups or conforming changes are also made to the (Chapter 3.2), and can also be found at peoples and their activities.

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This final rule incorporates and boundaries of National Register of e. Department of Defense Activities adopts other common terms defined in Historic Places listed sites. Collection, NOAA and DoD agree that all military the existing national regulations at excavation, or other comparable activities will be carried out in a manner § 922.3; some of those terms include: activities within the Mallows Bay- that avoids, to the maximum extent ‘‘Cultural resources,’’ which means any Widewater Archeological District, practicable, any adverse impacts on historical or cultural feature, including require permission through a permit sanctuary resources and qualities. Based archaeological sites, historic structures, from the state of Maryland. In the case on information provided by DoD on its shipwrecks, and artifacts; and ‘‘National of sanctuary resources that are covered activities in the area, and analyzed by under the Sunken Military Craft Act Marine Sanctuary’’ or ‘‘Sanctuary,’’ NOAA in its FEIS, the three (SMCA; Pub. L. 108–375, Tit. XIV; 10 which means an area of the marine prohibitions will not apply to existing U.S.C. 113 note), NOAA and the DoN environment of special national military activities as described in the would cooperate on protecting those significance due to its resource or FEIS, or to the following activities: resources using the policy and human-use values, which is designated (i) Low-level overflight of military procedures described in the 2015 as such to ensure its conservation and aircraft operated by DoD; Memorandum of Agreement (MOA). A management. (ii) The designation of new units of Based on public comments and copy of the MOA is available at: special use airspace; www.gc.noaa.gov/moa-2014-navy- consultation with partners, the final rule (iii) The use or establishment of signed.pdf. adds a definition in the MPNMS military flight training routes; Additionally, NOAA adopted the regulations at § 922.201 providing that (iv) Air or ground access to existing or traditional fishing exemption to ‘‘traditional fishing’’ means those new electronic tracking minimize or otherwise eliminate commercial, recreational, and communications sites associated with potentially adverse economic impacts of subsistence fishing activities that were special use airspace or military flight sanctuary designation experienced by customarily conducted within the training routes; or the fishing industry and to address Sanctuary prior to its designation or (v) Activities to reduce or eliminate a concerns raised by the Potomac River expansion, as identified in the relevant threat to human life or property Fisheries Commission. The terms of Final Environmental Impact Statement presented by unexploded ordnances or designation (found in appendix B of and Management Plan for this munitions. subpart S) clarifies that fishing shall not Sanctuary. New military activities that do not be regulated as part of the Sanctuary violate the three prohibitions are 5. Joint Management of the Sanctuary management regime, but may be allowed in the sanctuary. Any new NOAA, the State of Maryland, and regulated by other Federal, State, Tribal military activity that is likely to violate Charles County, Maryland, will jointly and local authorities of competent sanctuary prohibitions may become manage MPNMS. NOAA established the jurisdiction. As an additional non- exempt from the prohibitions through framework for joint management at regulatory measure, NOAA, the State, consultation between the Director and § 922.202 and memorialized the and Charles County agreed to review, DoD pursuant to section 304(d) of the operational details to coordinate consider, and address measurable, NMSA. The term ‘‘new military sanctuary management in a negative impacts of sanctuary activity’’ includes but is not limited to, Memorandum of Agreement (MOA). designation on fishing particularly any existing military activity that is Any significant changes to the during the 5- and 10-year periodic modified in any way (including change regulations or management plan would review conducted under the NMSA. be jointly coordinated. The draft MOA in location, frequency, duration, or is found in Appendix D in the FEIS. b. Damaging Sanctuary Signs and technology used) that is likely to Infrastructure destroy, cause the loss of, or injure a 6. Prohibited and Regulated Activities NOAA prohibits damage to sanctuary sanctuary resource, or is likely to NOAA will regulate three activities signs, notices, placards, monuments, destroy, cause the loss of, or injure a for MPNMS, found in § 922.203(a), and stakes, posts, buoys, or boundary sanctuary resource in a manner or to an summarized below. markers. These materials are Federal extent that was not considered in a previous consultation under section a. Damaging Sanctuary Resources property and part of the education and outreach programs in support of 304(d) of the NMSA. MPNMS regulations prohibit any sanctuary management. This regulation 7. Emergency Regulations person from conducting or causing to be prohibits damage from marking, conducted the moving, removing, defacing or altering these materials in As part of this designation, NOAA recovering, altering, destroying, any way. will have the authority to issue possessing, or otherwise injuring, or emergency regulations. Emergency attempting to move, remove, recover, c. Interfering With Investigations regulations are used in limited cases alter, destroy, possess or otherwise NOAA prohibits interfering with and under specific conditions when injure a sanctuary resource, except as an sanctuary enforcement activities. This there is an imminent risk to sanctuary incidental result of traditional fishing. regulation will assist in NOAA’s resources and a temporary prohibition This sanctuary prohibition on enforcement of the sanctuary on a specific activity would prevent the possessing sanctuary resources does not regulations and strengthen sanctuary destruction or loss of those resources. apply retroactively to historical management. Under the NMSA, NOAA only issues resources removed from the sanctuary emergency regulations for a maximum prior to designation. d. Exemption for Emergencies and Law of six months, and can only extend any Maryland State regulations related to Enforcement single emergency regulation once. A full the limited removal of historical NOAA exempts from the three rulemaking process must be undertaken, resources, which have been in effect regulations activities that respond to including a public comment period, to since July 1, 1988, currently do not emergencies that threaten lives, consider making an emergency apply to these resources as limited property or the environment, or are regulation permanent. NOAA modifies removal is not allowed within the necessary for law enforcement purposes. the national regulations at § 922.44 to

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include MPNMS in the list of prohibitions at § 922.203. As such, certifications of pre-existing sanctuaries that have site-specific NOAA amends the regulatory text at authorizations or rights regulations related to emergency § 922.49 to add reference to subpart S. • Section 922.48 National Marine regulations, and adds detailed site- Sanctuary permits—application d. Special Use Permits specific emergency regulations to the procedures and issuance criteria MPNMS regulations at § 922.204. DoD NOAA has the authority under the • Section 922.49 Notification and activities are not subject to emergency NMSA to issue special use permits review of applications for leases, regulations. (SUPs) at national marine sanctuaries as licenses, permits, approvals, or other established by section 310 of the NMSA. authorizations to conduct a prohibited 8. General Permits, Certifications, SUPs can be used to authorize specific activity Authorizations, and Special Use Permits activities in a sanctuary if such • Section 922.50 Appeals of a. General Permits authorization is necessary (1) to administrative action establish conditions of access to and use NOAA intends to make additional NOAA has authority to issue permits of any sanctuary resource; or (2) to system-wide regulation updates when to allow certain activities that would promote public use and understanding NOAA finalizes elements of a national otherwise violate the prohibitions in of a sanctuary resource. The activities review of regulations that was proposed MPNMS regulations. Similar to other that qualify for a SUP are set forth in the on January 28, 2013 (78 FR 5998). Of national marine sanctuaries, NOAA Federal Register (78 FR 25957; May 3, relevance to MPNMS, the final rule for considers these permits for the purposes 2013). Categories of SUPs may be the national review of regulations would of education, research, or management. changed or amended through public consolidate general permit regulations To include this permit authority for notice and comment. NOAA will not and permitting procedures from site- MPNMS, NOAA amends national apply SUP authority to activities in specific subparts into the system-wide regulations in part 922, subpart E, to existence at the time of MPNMS regulations. No substantive changes to add references to subpart S, as designation. MPNMS permit categories or permit appropriate, and adds a new § 922.205 NOAA reviews SUP applications to requirements would be included as part in subpart S titled ‘‘Permit procedures ensure that a proposed activity is of the national regulation review. NOAA and review criteria’’ that would address compatible with the purposes for which will finalize elements of the national site-specific permit procedures for the sanctuary is designated and that the regulation review in a separate MPNMS. activities carried out under the SUP will rulemaking action. b. Certifications be conducted in a manner that do not 10. Terms of Designation destroy, cause the loss of, or injure NOAA adds language at § 922.206 sanctuary resources. NOAA also Section 304(a)(4) of the NMSA describing the process by which NOAA requires SUP permittees to purchase requires that the terms of designation may certify pre-existing authorizations and maintain comprehensive general include: The geographic area of the or rights within MPNMS. Here, the term liability insurance, or post an equivalent sanctuary; the characteristics of the area ‘‘pre-existing authorizations or rights’’ bond, against claims arising out of that give it conservation, recreational, refers to any leases, permits, licenses, or activities conducted under the permit. ecological, historical, research, rights of subsistence use or access in The NMSA allows NOAA to assess and educational, or aesthetic value; and the existence on the date of sanctuary collect fees for the conduct of any types of activities that may be subject to designation (see 16 U.S.C. 1434(c); 15 activity under a SUP. The fees collected regulation by the Secretary of Commerce CFR 922.47). Consistent with this, could be used to recover the to protect these characteristics. Section MPNMS regulations at § 922.206 states administrative costs of issuing the 304(a)(4) also specifies that the terms of that certification is the process by which permit, the cost of implementing the designation may be modified only by these pre-existing authorizations or permit, monitoring costs associated with the same procedures by which the rights that violate sanctuary the conduct of the activity, and the fair original designation was made. NOAA prohibitions may be allowed to market value of the use of sanctuary is adding the terms of designation as continue, and the sanctuary may resources. appendix B to the MPNMS regulations regulate the exercise of the pre-existing at 15 CFR part 922, subpart S. authorizations or rights consistent with 9. Other Conforming Amendments IV. Response to Comments the purposes for which the sanctuary The general regulations in part 922, was designated. Applications for subpart A, and part 922, subpart E, for When designating a national marine certifying pre-existing authorizations or regulations of general applicability sanctuary, section 304 of the NMSA (16 rights must be received by NOAA would also have to be amended so that U.S.C. 1434) requires the preparation of within 180 days of the Federal Register the regulations are accurate and up-to- an environmental impact statement notification announcing of effective date date. The following 10 sections are (EIS), as provided by the National of the designation. updated to reflect the increased number Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) and that c. Authorizations of sanctuaries or to add subpart S to the list of sanctuaries: the EIS be made available to the public. With this designation, NOAA also • Section 922.1 Applicability of In preparing the final EIS, the CEQ assumes authority to allow an otherwise regulations regulations further require that agencies prohibited activity to occur in MPNMS, • Section 922.40 Purpose respond to all ‘‘substantive’’ comments if such activity is specifically authorized • Section 922.41 Boundaries on a draft EIS (40 CFR 1503.4). by any valid Federal, state, or local • Section 922.42 Allowed activities The MPNMS DMP, DEIS and lease, permit, license, approval, or other • Section 922.43 Prohibited or proposed sanctuary regulations were authorization issued after sanctuary otherwise regulated activities released for public review on January 9, designation. ‘‘Authorization authority’’ • Section 922.44 Emergency 2017 (82 FR 2256). The public comment is intended to streamline regulatory regulations period ended on March 31, 2017. During requirements by reducing the need for • Section 922.47 Pre-existing this period, NOAA received over 1,450 multiple permits and would apply to all authorizations or rights and comments, including written comments,

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oral comments, and group letters. Of boundary alternatives. DoN also economic and social benefit to local those, 1120 comments were received submitted a public comment stating economies and communities. through the eRulemaking Portal support for the proposed sanctuary 3. Comment: NOAA received some www.regulations.gov. NOAA also hosted designation and expressing a desire to comments stating that as the Nation two public hearings on March 7, 2017 work cooperatively with NOAA to commemorates the Centennial of United in La Plata, MD, and March 9, 2017 in ensure that the designation does not States’ entry into WWI, sanctuary Arnold, MD. Over 170 people attended adversely impact military operations in designation would be a fitting tribute to the meetings with 73 people providing the area. those citizens who served our country oral public comment. Additionally, Additional input on the proposal during that period. through the National Marine Sanctuary were provided to NOAA through Response: NOAA agrees that the Foundation (NMSF), NOAA received consultation with Federal and state sanctuary could help to interpret the two letters signed on behalf of multiple agencies as well as discussions with stories of sacrifice and commitment of organizations; one was signed by 133 three state-recognized Tribes: those who served during WWI, individuals in support of designation of Piscataway Conoy Confederacy and including our war veterans, the NOAA’s preferred alternative and the Sub-Tribes (MD), Piscataway Indian expansion of the U.S. Merchant second was signed by 128 organizations Nation (MD), and the Patawomeck Marines, and communities associated in support of designation for MPNMS Indian Tribe of Virginia (VA). with more than 40 shipyards in the construction of the Ghost Fleet vessels. and a separate action relating to the For the purposes of managing proposed designation of Wisconsin— NOAA will continue to participate responses to public comments, NOAA Lake Michigan National Marine alongside other local, state and federal grouped similar comments by theme. Sanctuary. programs and non-profit organizations The majority of comments expressed These themes align with the content of throughout the WWI Centennial support for the proposed sanctuary, the proposed rule that identified the Commemoration period and beyond. several expressed opposition, and a few purposes and needs for a national 4. Comment: NOAA received several did not take a position. Of those people marine sanctuary, and the draft comments expressing opposition to the who spoke at the public meetings, more management plan that identified the proposed designation because than half expressed support, several proposed non-regulatory programs and commenters expressed mistrust with the were opposed, and a few expressed sanctuary operations. The themes are Federal Government, argued the conditional support. In addition, of the summarized below, followed by proposed sanctuary is not needed, and nearly 1000 comments that specified a NOAA’s response. felt designation would not be a good use boundary alternative, relatively few Comments on the Purposes and Need of taxpayer money. favored Alternative A (i.e., no action/no for the Sanctuary Response: Through the NMSA, NOAA sanctuary), while most favored as a Federal agency carries out its Alternative B (18 square miles, which Purpose and Need 1: Resource mission through transparent public closely matches with the Mallows Bay- Protection for Maritime and Cultural processes and community-based Widewater Historical and Archeological Heritage Assets programs that involve extensive and continuous public engagement and District on the National Register of 1. Comment: The majority of input. This holds true for nominating Historic Places), Alternative C (52 comments NOAA received expressed and potentially designating new square miles of the tidal Potomac River, support for the sanctuary designation sanctuaries. The concept for this which includes all of the known WWI- because it will have a positive impact proposed sanctuary originated with a era historic vessel remains) or on cultural resource protection of nomination from the Governor of Alternative D (100 square miles of the known and potential shipwreck sites Maryland to NOAA. That nomination tidal Potomac River which may contain through increased public awareness, also included the request for joint other maritime cultural heritage assets education, interpretation and related management with the State of Maryland and potentially expands recreational use programs. opportunities). The majority of and Charles County, MD. The Response: NOAA agrees with these comments supported Alternative D for designation process has included public comments and, in partnership with the purposes of public access and scoping and public comment periods as State of Maryland and Charles County, protection for any potential additional well as numerous meetings with MD, is moving forward with the maritime cultural assets. Supporters of community organizations. Post- sanctuary designation process which this alternative also cited its increased designation, NOAA and the joint cites protection and interpretation of protection of natural resources, although managers of the sanctuary will continue nationally-significant maritime cultural natural resource management is not their partnership and transparency with heritage resources as one of two proposed or being implemented for this the community through sanctuary purposes and needs for the sanctuary. sanctuary. Several comments supported advisory councils, working groups, NOAA’s draft preferred alternative 2. Comment: NOAA received many volunteer opportunities, and a diversity (Alternative C) as did those who signed comments highlighting that the WWI- of partnerships. a letter of support through the NMSF. Of era ship remains and related maritime The justification for the sanctuary is the comments that did not specify a assets are an important component of addressed in the final environmental boundary alternative, the majority United States history and maritime impact statement. Specifically, Section supported a sanctuary designation. cultural heritage. 3.2 ‘‘Description of Alternatives’’ Through the NMSF, many organizations Response: NOAA agrees with these describes Alternative B in terms of the expressed support for MPNMS and the comments. These vessels were built at Mallows Bay-Widewater Historical separate Wisconsin designation without more than 40 shipyards throughout the Archeological District which codifies reference to a specific alternative. coastal United States and helped to the national significance of the Ghost As a cooperating agency, the DoN transform the United States Fleet and related maritime assets and provided NOAA with comments on shipbuilding capacity. In addition, the provides opportunity for Federal behalf of four military installations demand for workers, materials and protection. Section 2.2 ‘‘Purpose and adjacent to the proposed sanctuary industry services provided significant Need for Action’’ describes how the

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NMSA would complement and NOAA’s non-regulatory programs (e.g., Specifically, in 2015, the Department of supplement existing Federal and State education, public outreach, citizen the Interior placed a section (called a authorities to enhance resource science) make significant contributions ‘‘district’’) of the Potomac River protection for maritime assets and to the ongoing and long-term containing the Ghost Fleet on the facilitate public access and recreation management of historic resources and National Register of Historic Places. through regulatory and non-regulatory are important tools to help raise public This district listing recognizes the area actions. awareness and deter impacts to the as ‘‘nationally-significant’’ and is In the final management plan for this historic and maritime cultural heritage consistent with the criteria described in sanctuary, NOAA describes sanctuary resources of the area. the Federal Register notice for the activities that could be completed at 6. Comment: NOAA received some Sanctuary Nomination Process to several funding levels (see FMP comments expressing support for the qualify the resources for consideration Appendix 3). As a federal agency, proposed sanctuary designation because as a national marine sanctuary. NOAA’s budget is passed by Congress the sanctuary would help protect and 9. Comment: NOAA received some and is signed into law by the President. interpret important Civil War heritage comments that the sanctuary should NOAA’s budget includes an annual resources. recognize and interpret the historical allocation for the management of all Response: NOAA agrees with these fisheries of the region as well as the national marine sanctuaries under the comments. In addition to protecting and generations of local watermen. NMSA. NOAA makes funding decisions interpreting WWI-era assets, the waters Response: NOAA agrees with these for each sanctuary based on the of the Potomac River potentially include comments. While the WWI-era vessels Congressional appropriation to the historic assets from other eras, including and assets are the dominant maritime Agency, Office of National Marine the Civil War, which would also be feature of the proposed sanctuary, Sanctuaries priorities, and the particular protected. Additionally, the NOAA recognizes that there are other needs of individual national marine surrounding maritime landscape is significant cultural resources within sanctuaries. As a result, funding can associated with Civil War-era history, and/or associated with the sanctuary vary from year to year, which may affect including the Underground Railroad. (see Section 3.2 of FEIS p.52), including the level of activities completed in the NOAA expects that sanctuary the history of fishing and the heritage of management plan. NOAA also research, education, and outreach efforts local watermen. The sanctuary will anticipates a varying level of in-kind have potential to expand the work with partners to conduct research contributions from joint managers from understanding, protection and and to provide education and outreach the State of Maryland and Charles interpretation of these histories and materials to help document and County, MD, as well as other partners, resources. interpret these histories (see FMP will contribute to the overall sanctuary 7. Comment: NOAA received several Action Plan 5, Research, Science and goals. comments that the sanctuary would Technology). 5. Comment: NOAA received a few serve as an important and permanent 10. Comment: NOAA received a few comments that sanctuary designation is memorial to those citizens who have comments that the sanctuary should unnecessary because the historic served and sacrificed their lives to include the history and heritage of the resources are managed by the State of defend our country, from the four DoD facilities that are within or Maryland already and the area was Revolutionary War through modern nearby the proposed sanctuary recently added to the National Register times. alternatives. of Historic Places (NRHP). Response: NOAA agrees that an Response: NOAA agrees with these Response: NOAA disagrees that opportunity may potentially exist. As comments. The DoD mission, facilities, sanctuary designation is unnecessary. these assets cannot reside in museums and assets are critical to national While the State of Maryland is the or other land-based venues, the resting security. DoD heritage is an integral part trustee and manager of the historic place of the WWI-era Ghost Fleet and of the history and heritage of this region. resources, there remain gaps in the maritime assets from other war eras The sanctuary management plan State’s authority to provide full within sanctuary waters offer a unique includes strategies to partner with these protection, as defined in Section 2.4 of opportunity to commemorate facilities to develop education, outreach the FEIS. The listing of the Ghost Fleet commitment and service. For example, and interpretative materials. on the National Register of Historic NOAA and its partners have initiated 11. Comment: NOAA received several Places (NRHP) in 2015 deemed their preliminary dialog with the Maryland comments that the sanctuary should value as nationally significant due to its Veterans Museum at Patriot Park about address Native American heritage. historical, cultural or archaeological the potential for the sanctuary’s water- Response: NOAA agrees with these qualities and, therefore, eligible for based perspective to complement the comments. In 2014, the community who additional Federal protection. experience of visitors to their venue. developed the original sanctuary Section 2.4 of the FEIS defines the NOAA intends to continue to work with nomination recognized Tribal culture as role of the NMSA to complement and a variety of organizations to promote integral to the history and heritage of supplement existing authorities. For and interpret histories and stories of the Potomac River. The Piscataway example, the NHPA only applies to personal commitment associated with Conoy Confederacy and Sub-Tribes Federal undertakings and does not the sanctuary. (MD) served as a member of the address actions taken by the public. As 8. Comment: NOAA received several nominating group and helped to guide such, the NMSA would supplement comments that the shipwrecks are not the information content. There are two existing state authorities by closing gaps nationally significant and that NOAA state-recognized tribes in Maryland related to the collection of historic did not provide adequate justification (Piscataway Conoy Confederacy and artifacts, by strengthening the for designation. Sub-Tribes and Piscataway Indian requirement for the public to report Response: NOAA disagrees with these Nation) and one in Virginia discovery of historic artifacts, by comments. The WWI-era Ghost Fleet is (Patawomeck Indian Tribe of VA) who increasing enforcement capacity, and by a national asset that has been adequately claim this area as their aboriginal increasing the penalty for violation of documented and validated by territory. NOAA anticipates working these prohibitions. Additionally, nationally-recognized authorities. alongside partners to expand

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understanding and interpretation of the Response: NOAA agrees with this the maritime resources over time and, as heritage of all local Native American comment. For the purposes of this practical, to better understand the cultures. designation, sanctuary resource potential impacts associated with these 12. Comment: NOAA received a few protection and management is exclusive natural events. comments that the sanctuary will to the maritime and cultural assets of NOAA also agrees that marine debris provide an important opportunity to the area. NOAA has developed a has potential to impact sanctuary document African American culture and Memorandum of Agreement (MOA) resources. The management plan heritage in the area, including possible with the State of Maryland and Charles includes a number of non-regulatory Underground Railroad sites as well as County, MD, that, in part, reiterates the strategies that raise public awareness the contributions of African Americans authority and responsibility for natural and promote responsible use of the to local shipbuilding and fisheries resource management within the sanctuary resources as important industries. sanctuary remains with the State of methods for mitigating human impacts Response: NOAA agrees with these Maryland and the Potomac River such as marine debris. Additionally, comments. Limited information exists Fisheries Commission. In addition, the since 2014, NOAA and its partners have on the direct role of African Americans terms of designation (found in appendix participated in an annual trash clean up in shipbuilding and related services B of subpart S) clarifies that fishing at Mallows Bay Park hosted by the Alice during WWI and their role in shall not be regulated as part of the Ferguson Foundation. Those events subsequent ship breaking operations. Sanctuary management regime, but may have attracted hundreds of community Thus, the management plan identifies be regulated by other Federal, State, volunteers who have collected several significant opportunity to research, Tribal and local authorities of tons of trash and marine debris in and document and interpret this history. competent jurisdiction. around the historic and natural 13. Comment: NOAA received a few 15. Comment: NOAA received many resources. Following designation, comments questioning why the comments regarding the probable NOAA intends to expand partnerships sanctuary boundary extends beyond the existence of maritime artifacts with other programs in response to boundary of Mallows Bay Park since throughout the areas identified in marine debris. most of the ships are clustered in that Alternatives C and D as rationale for Purpose and Need 2: Public Access, area. expanding the sanctuary boundaries. Response: While many of the known Response: NOAA agrees that Recreation and Heritage Tourism WWI-era vessel remains reside in an significant maritime assets exist outside 17. Comment: NOAA received several area adjacent to Mallows Bay Park, other of sanctuary boundaries. For example, comments that the Mallows Bay known vessel remains are located near the remains of two WWI-era vessels, the sanctuary nomination and designation Widewater, VA, as well as other remains of the steamship Wawaset, and processes have already increased public locations in the middle Potomac River. the remains of a Civil War-era vessel are awareness of and visitation to the area, In addition, research indicates that other known to reside in the areas defined by which has resulted in overcrowding at maritime and cultural assets from Alternative C. As such, NOAA based Mallows Bay Park and conflicts among several time periods have yet to be Alternative C on the premise of users, and which threatens the discovered. As such, the proposed including all of the known WWI-era protection of sanctuary resources. sanctuary boundary (Alternative B) vessels and other significant maritime Response: NOAA agrees that the encompasses these assets and is assets in addition to those which designation process has increased purposefully aligned with an area research indicates have the potential to awareness of Mallows Bay Park and defined on the National Register of exist. Although NOAA is not aware of adjacent maritime cultural heritage Historic Places. This entire area any documented vessels or maritime resources, but data are not available to contains important cultural and assets in Alternative D, NOAA agrees interpret changes to visitation. As maritime resources, including the there is credible research to suggest they outlined in the proposed management remains of the WWI-era Ghost Fleet, may exist and, therefore, the rationale plan, NOAA will work in cooperation vessels and assets associated with the for resource protection that was with partners to understand visitor use, three shipbreaking periods, vessels from explored through Alternative D. NOAA understand carrying capacity of the site other historical periods, and other believes there are substantial scientific and, if/as necessary, help mitigate cultural features. In response to public and educational opportunities to overcrowding (see FMP Resource comments and consultations associated explore and document additional assets Protection Action Plan, Strategy RP–3) with the proposed sanctuary, NOAA, and artifacts throughout the sanctuary and reduce potential threats to alongside partners from the State of and adjacent waters. sanctuary resources (see FMP Resource Maryland and Charles County, MD, 16. Comment: NOAA received one Protection Action Plan, Strategy RP–1 chose to adopt Alternative B, a comment regarding NOAA’s inability to and RP–3). For example, proposed management area that would include enact management strategies that protect activities related to visitor information, these potential historic sites and the maritime resources from ‘‘sea level signage, marketing, public outreach and facilitate resource management as rise, marine debris, erosion and other water trails are expected to help potential new sites are discovered. This impacts from the sea’’. disperse or separate visitors. would ensure that newly discovered Response: NOAA agrees that 18. Comment: NOAA received many sites are protected and managed at the management strategies to protect comments that NOAA should work with time of discovery. maritime resources from forces of nature partners to help facilitate additional 14. Comment: NOAA received a few cannot be developed or implemented. public access, enhance capacity at comments that the sanctuary as These forces will continue to influence existing access sites, and enhance proposed provides a good balance the condition of the maritime cultural visitor services. through its focus on maritime cultural heritage resources and the extent to Response: NOAA agrees with this heritage resources while continuing to which they are being reclaimed by comment. Facilitating public access and leave the management of natural nature. The sanctuary management plan recreational opportunity is one of two resources under existing state and local proposes science and research activities purposes and needs identified for the authorities. that monitor and document changes to sanctuary. NOAA will continue to work

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with partners in Maryland and Virginia be addressed by the County or State, as Response: NOAA does not propose to to consider public use and demand and, appropriate, and as a joint managers of restrict casual collection of fossils along as appropriate, to expand access and the sanctuary. the shoreline. NOAA will continue to services that enhance visitor 22. Comment: NOAA received one work with partners to develop public experiences. comment expressing concern that education and outreach materials that 19. Comment: NOAA received several NOAA would charge a fee for interpret the resources of the area, comments that sanctuary designation is commercial and recreational uses of the including fossils, to help encourage an opportunity to network recreational Potomac River. respect and stewardship of any artifacts opportunities among multiple public Response: Facilitating public access which may have unique cultural parks and access points in MD and VA, and recreational use of the Potomac significance. Some commercial methods and one comment providing specific River is one of the two purposes for of collection may require permitting recommendations for the types of establishing the sanctuary. The States under the NMSA and through other amenities at these locations. and County may already charge fees for authorities, such as the U.S, Army Corps Response: NOAA agrees with this use of parks or recreational activities of Engineers, if the activity is expected comment and recognizes the social and (i.e., fishing licenses), but those fees are to cause significant bottom disturbance economic benefits associated with not associated with nor are the fees or damage to the historic resources. enhancing partnerships among these imposed by the sanctuary. Generally, 24. Comment: NOAA received one sites. Mallows Bay Park is one of several NOAA does not charge fees for public comment that there should be an local, state and Federal parks in MD and access to national marine sanctuaries. emphasis on encouraging recreational VA along this stretch of the Potomac However, pursuant to Section 310 of the activity in the area, specifically related River. Additionally, these parks are NMSA, NOAA may issue special use to recreational boating, and that the adjacent to and provide public access to permits (SUPs) to establish conditions sanctuary must provide recreational three national water trails in this of access and use of sanctuary resources, access for boaters. portion of the river. The sanctuary or to promote public use and Response: Facilitating public access management plan identifies activities to understanding of a sanctuary resources. and recreational use of the Potomac support recreational access, water trails Special use permits are generally issued River is one of the two purposes for and interpretation, as well as education for a narrow category of concessionary establishing the sanctuary. NOAA and public outreach of the area on both or commercial activities. Those encourages a variety of responsible sides of the Potomac River. activities are set forth in the Federal recreational uses within the sanctuary 20. Comment: NOAA received a few Register (78 FR 25957; May 3, 2013 and and will continue to work with partners comments that NOAA should protect 82 FR 42298; September 7, 2017), and to explore opportunities to enhance the areas of importance but keep the include: services important to all users, river open and available to all. 1. The placement and recovery of including recreational boating. Response: NOAA agrees with this objects associated with public or private 25. Comment: NOAA received one comment. The purpose of the events on non-living substrate of the comment asking NOAA to confirm that designation is to protect the nationally- submerged lands of any national marine Alternatives C and D would not impact significant maritime cultural heritage sanctuary. construction/maintenance of marinas resources. In carrying out this purpose, 2. The placement and recovery of and piers along the Prince William NOAA has no plans to limit access to objects related to commercial filming. County, VA, shoreline or the operation the Potomac River. Many of the action 3. The continued presence of of passenger ferry service and transport plans in the management plan commercial submarine cables on or of commercial goods to ports on the encourage use of the river, including within the submerged lands of any Potomac River. Resource Protection Strategy 3 national marine sanctuary. Response: Because NOAA’s preferred (enhancing user access, developing trail 4. The disposal of cremated human alternative (Alternative B) does not maps, certification programs for local remains within or into any national include the Prince William County, VA, outfitters). Additionally, the Recreation marine sanctuary. shoreline, the facilities referenced in the and Tourism Action Plan (FMP Section 5. Recreational diving near the USS comment are not included in the 3) focuses on ways to increase Monitor. sanctuary boundaries and thus will not sustainable use of the sanctuary and 6. Fireworks displays. be impacted by sanctuary regulations. In adjacent river, preparing and 7. The operation of aircraft below the the case of any future construction distributing outreach and education minimum altitude in restricted zones of projects that may have the potential to materials to visitors, and working with national marine sanctuaries. indirectly impact the sanctuary, NOAA state and local governments to develop 8. The continued presence of a would consult with other Federal, state and/or enhance tourism infrastructure. pipeline transporting seawater to or and local agencies to evaluate potential 21. Comment: NOAA received one from a desalination facility. impacts. The sanctuary regulations do comment expressing concern about the The NMSA allows NOAA to assess not prohibit or otherwise limit vessel safety of bicyclists on local roads and and collect fees for activities conducted traffic on the Potomac River, and thus objections to using local taxes to fund under an SUP. The fees are collected in NOAA does not expect that this action the activities of visitors. order to recover the administrative costs would affect the operation of passenger Response: Through the proposed of issuing the permit, the cost of ferry service or other commercial uses of designation, NOAA cannot manage or implementing the permit, monitoring the river. NOAA is committed to regulate local roads, vehicle traffic, or costs associated with the conduct of the ensuring that the creation of the cyclist use of the roadways. Local land activity, and the fair market value of the sanctuary supports businesses and use planning, taxes and related use of sanctuary resources. NOAA will organizations that use the river and infrastructure remain under the not apply the SUP to activities in place surrounding marinas, ports and other authority of County and State agencies. at the time of the MPNMS designation. waterfront facilities and recognizes that If or when changes to the use of local 23. Comment: NOAA received one commercial and recreational uses of the use of roadways is related to the comment expressing concern that fossil Potomac River are important activities sanctuary, any actions or amenities will hunting would be restricted. that support the nation’s economy.

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Impact on Sovereignty and Rights In Article IV, Section 2, of the Terms VA) who claim this area as their of Designation (found in appendix B of aboriginal territory. Consistent with 26. Comment: NOAA received several part 922, subpart S), NOAA clarifies that section 106 of the National Historic comments concerned that sanctuary ‘‘NOAA will not exercise its authority Preservation Act, NOAA invited the designation will result in the loss of under the NMSA to regulate fishing in three state-recognized tribes to be State control of the Potomac River, and the Sanctuary.’’ NOAA has also added consulting parties in the designation is a takeover of both management, an exemption for traditional fishing in process. Interaction with local Tribes regulation and permitting of the area by § 922.203(a), and ‘‘traditional fishing’’ is has been on-going. the Federal government. defined in § 922.201 as those In 2014, the community who Response: NOAA disagrees with this commercial, recreational, and developed the original sanctuary comment. The NMSA recognizes the subsistence fishing activities that were nomination recognized Tribal culture as sovereignty of the State of Maryland. As customarily conducted within the integral to the history and heritage of stated in the NMSA (16 U.S.C. Sanctuary prior to its designation or the Potomac River. The Piscataway 1431(b)(2)), one of the purposes and expansion, as identified in the relevant Conoy Confederacy and Sub-Tribes policies of sanctuary designation is ‘‘to Final Environmental Impact Statement (MD) served as a member of the provide authority for comprehensive and Management Plan for this nominating group and helped to guide and coordinated conservation and Sanctuary. the information content. Since then, management of these marine areas, and Furthermore, in Section VII of the members of the Piscataway Conoy activities affecting them, in a manner Draft MOA (found in Appendix D of the Confederacy and Sub-Tribes which complements existing regulatory FEIS/FMP), the parties intend to participated in local community events authorities.’’ Similarly, section 1434 consider the potential impacts of related to Mallows Bay and, on March provides the Governor with authority to sanctuary designation to commercial 7 and March 9, 2017, offered verbal certify that the designation or terms and recreational fishing activities during comments related to the proposed thereof is unacceptable, and preclude management plan review conducted sanctuary. One member questioned the the designation or terms thereof from under 304(e) of the NMSA. Specifically, historic value of the ships and taking effect in state waters. within sixty days of the five- and ten- expressed concern about increased NOAA, the State of Maryland, and year anniversary date of the designation, taxes, while the Tribe’s Chairman Charles County, MD, will enter into a the Governor of Maryland may submit expressed support for the sanctuary and Memorandum of Agreement (MOA) that findings demonstrating the manner and partnerships that share a common goal specifies the terms of joint management extent to which the designation of the to protect the resources and ancestry of of the sanctuary and reiterates that the sanctuary is having measurable negative the Potomac River. On March 22, 2017, State does not relinquish sovereignty or impacts on the State’s commercial also as part of the public comment and/or recreational fishing industry, and management control over any State- period, the Patawomeck Indian Tribe of provide NOAA with an opportunity to owned bottom lands and resources VA submitted a written comment address the concerns. within the sanctuary boundaries. This expressing concern for Tribal document clearly lays out how Additionally and pursuant to the NMSA, any future changes to the sovereignty and Federal involvement sanctuary designation will supplement that could affect livelihoods. and complement, not replace, existing activities subject to regulation would require public notice, a rulemaking On March 2, 2017, NOAA sent letters authorities. The draft MOA can be to two Maryland Tribes—the Piscataway found in Appendix D of the FEIS. process, and concurrence from the State of Maryland. As such, the authority and Conoy Confederacy and Sub-Tribes and 27. Comment: NOAA received a few responsibility for natural resource Piscataway Indian Nation. The comments that the Potomac River management, including commercial and Piscataway Conoy Confederacy and Fisheries Commission (PRFC) has sole recreational fishing, remain with PRFC Sub-Tribes provided oral comments authority to manage fisheries within the and MD Department of Natural during the public meetings on March 7 mainstem tidal reach of the Potomac Resources (DNR). In March 2017, and March 9 as described above. On River and that sanctuary designation Attorneys General from both Maryland November 3, 2017, NOAA sent follow and any associated regulations will and Virginia rendered opinions to PRFC up emails to these same Tribes inviting infringe on the PRFC authority. and MD DNR which confirmed that the them to discuss the proposed sanctuary Response: NOAA disagrees that the authorities of PRFC and DNR for natural and any concerns related to the Tribes. sanctuary will infringe on PRFC resource management would not be NOAA did not receive a reply from authority. NOAA narrowly defines impacted by sanctuary designation (See either. sanctuary resources as ‘‘historical FEIS Appendix E). On October 16, 2017, and November resources’’, which includes ‘‘any 28. Comment: NOAA received a few 20, 2017, NOAA sent invitations for resource possessing historical, cultural, comments concerned that sanctuary consultation to the Patawomeck Indian archaeological or paleontological designation will infringe upon the rights Tribe of VA. NOAA did not receive a significance, including sites, contextual of local tribes. response. On November 29, 2017, information, structures, districts, and Response: NOAA disagrees with this NOAA phoned Chief John Lightner. objects significantly associated with or comment. Sanctuary designation and During that conversation, Chief Lightner representative of earlier people, management will not infringe on Tribal offered no present-day concerns relative cultures, maritime cultural heritage, and rights. NOAA anticipates working to the proposed sanctuary, despite the human activities and events.’’ The alongside partners to expand initial concerns expressed during the definition does not including living understanding and interpretation of the public comment period in March 2017. resources, such as fish, marine heritage of all local Native American Moreover, Chief Lightner expressed mammals or seabirds. Instead, the cultures. There are two state-recognized interest in learning more about proposed regulations seek only to tribes in Maryland (Piscataway Conoy opportunities to engage directly with protect the maritime and cultural Confederacy and Sub-Tribes and the sanctuary on topics related to resources of Mallows Bay-Potomac Piscataway Indian Nation) and one in interpreting the heritage of the River. Virginia (Patawomeck Indian Tribe of Patawomeck Tribe of VA.

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29. Comment: NOAA received one connectivity. Following sanctuary services. NOAA’s evaluation does not comment that the sanctuary would designation, natural resource include consideration of market-based cause property owners along the management will remain under the compensation. shoreline to lose their properties. jurisdiction of other existing State and Concern for Future Expansion of NOAA Response: As described in Section 3.2 Federal authorities. of the FEIS, sanctuary resources are 32. Comment: NOAA received many Authorities specific to the maritime and cultural comments that the proposed national 35. Comment: NOAA received a few resources within Maryland waters. The marine sanctuary is an important comments expressing concern that in 5 sanctuary boundary does not include component of the Chesapeake Bay and years when NOAA is required to revise land area, nor does it include private related programs the management plan, NOAA will property. Following sanctuary Response: NOAA agrees with this change the rules, expand the designation, authority for local land use comment. The Chesapeake Bay Program boundaries, and put in stricter planning remains with local is a regional partnership that leads and regulations. jurisdictions (e.g., Charles County, directs Chesapeake Bay restoration and Response: Section 304(e) of the Maryland and VA counties). NOAA has protection through partnerships with NMSA requires NOAA to evaluate a been and will continue to work closely federal and state agencies, local national marine sanctuary’s with state, county, and local authorities governments, nonprofit organizations management plan every five years. to understand land-based actions with and academic institutions. NOAA is However, NOAA is not required to the potential to negatively affect represented and actively engages in revise the management plan and/or the sanctuary resources. partnerships throughout the Chesapeake regulations during the management plan Bay and in the Potomac River. The Comments Related to Indirect Benefits review process. Should any changes to sanctuary presents additional the sanctuary’s management approach 30. Comment: NOAA received many opportunities to expand local and be required, they would be made only comments that sanctuary designation regional partnerships for public after the agency has engaged in a robust will be important to protect existing engagement, education, science and public process. populations and habitats for striped bass outdoor experiences. Additionally, any proposed changes and sturgeon, and will improve water 33. Comment: NOAA received several quality for recreational and commercial comments that the proposed national to a national marine sanctuary boundary fishing. marine sanctuary is an important and its regulations are further subject to Response: The authority and component of the Potomac River and section 304(a)(4) of the NMSA, which responsibility for natural resource the Chesapeake Bay. identifies the sanctuary’s ‘‘terms of management, including commercial and Response: NOAA agrees with this designation’’ (i.e., its geographic recreational fishing, remains with the comment. The Potomac River, which is boundaries, the characteristics that State of Maryland and the Potomac part of the Chesapeake Bay watershed, make it significant, and the broad types River Fisheries Commission. The is an important natural resource in the of activities that could be subject to management of the sanctuary is focused region. The cultural resources within regulation). These terms of designation on protections of maritime heritage the sanctuary are an important may be modified only by the same resources. As such, to the extent that watershed component that reflects the procedures used for the original fish or other species rely on the human history of the region. Through designation, meaning they must include maritime heritage resources as habitat, the sanctuary management plan, NOAA public notice requirements. This the sanctuary may have beneficial intends to further explore and interpret provision also allows the Governor of effects. The sanctuary management plan the cultural and historic aspects of the any respective state within the identifies opportunities for science and greater Potomac River watershed and its sanctuary’s boundaries to review any monitoring of maritime heritage relationship to the greater Chesapeake changes to the terms of designation, and resources, including their relationship region. to make a determination as to whether with the local ecosystem. NOAA’s 34. Comment: NOAA received one they are acceptable. Any term of Office of National Marine Sanctuaries comment stating that ‘‘Marine designation the Governor determines as consulted with NOAA Fisheries sanctuaries have been demonstrated to unacceptable shall not take effect in the pursuant to ESA section 7 for sturgeon have huge net-positive benefits for state waters of the sanctuary. and pursuant to the EFH provisions of economic growth. I think designation of In the case when a regulatory change the MSA for summer flounder and Mallows Bay as a marine sanctuary does not require changes to a bluefish. In both consultations, NOAA would be a critical advancement for the sanctuary’s terms of designation, NOAA found that sanctuary designation would region. I think this is so important to the would have to follow the procedures of not have an adverse effect. long-term future of this region, that if I the Administrative Procedure Act (5 31. Comment: NOAA received many were asked, I would support market- U.S.C. 553), which requires adequate comments that the sub-estuaries based compensation for individuals that public notice and opportunity for public represented by Alternative D are part of are financially harmed by the comment on any proposed new a connected ecosystem. As such, a designation. This would be an regulations. The State of Maryland and sanctuary that includes this area could important step in the restoration and Charles County, as the sanctuary joint- have additional benefit for species, strengthening of our bay.’’ managers, would be involved in all habitat and water quality Response: NOAA agrees that national considerations regarding any proposed Response: NOAA’s consideration of marine sanctuaries have potential to changes to the sanctuary’s terms of Alternative D was related directly to the provide net positive economic benefit to designation and regulations. protection and management of maritime communities, as described in the FEIS, 36. Comment: NOAA received a few cultural heritage resources and Sections 5.3.2 and 5.3.4. Increased comments expressing concern that, enhancing recreational access and awareness of the area and its maritime because NOAA has the authority to interpretation related to these resources. resources has potential to increase regulate fishing, once the sanctuary is As such, NOAA did not consider this heritage and recreational tourism and designated NOAA is likely to begin area from the perspective of ecosystem drive demand for enhancing visitor regulating fishing within this sanctuary.

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Response: NOAA’s purpose in studies from outside the local area. infrastructure (e.g., signs and exhibits) designating this national marine Additionally, through funding from needed to support sanctuary sanctuary is to protect maritime cultural NOAA, stewardship activities and management. Visitation and potential heritage assets located in the Potomac outdoor educational opportunities have economic benefit are among numerous River. While NOAA Office of National been expanded at two schools in other considerations regarding the Marine Sanctuaries has authority to Charles County, MD. The sanctuary will potential for a visitor center. If a visitor regulate fishing activities pursuant to enable additional educational center is determined to be appropriate the NMSA, NOAA has not exercised opportunities and partnerships, and feasible, NOAA will work in that authority for this sanctuary. The including those aimed at understanding partnership the county, state and/or sanctuary regulations for MPNMS only and appreciation of both ecological other local authorities with jurisdiction apply to historical resources. characteristics and historic for land use planning and funding Additionally, the terms of designation archaeological resources within the options. for MPNMS do not identify fishing as area. The site’s proximity to 41. Comment: NOAA received some one the activities subject to regulations. Washington, DC, and several colleges comments that sanctuary designation Moreover, since the waters of the and universities adds to the would increase tourism, which would sanctuary are located entirely within the opportunities for learning and research benefit the local economy. Sanctuary jurisdiction of the State of Maryland, the at the highest level, often in conjunction designation would help to create or PRFC (which includes commissioners with state and federal agencies, and support jobs and small business from Maryland and Virginia) and the private educational institutions. opportunities especially those State of Maryland will retain the sole 39. Comment: NOAA received associated with visitor services. authority to publish and enforce rules, comments that the sanctuary will be an Response: NOAA agrees that the regulations and laws dealing with all important location for research, science designation has potential to increase fishing matters in the area. In the Article and monitoring of historical resources public interest and visitation to the area IV, Section 2 of the Terms of as well as their interaction with the as described in the FEIS, Sections 5.3.2 Designation (found in appendix B of natural environment. and 5.3.4. No recent economic studies part 922, subpart S), NOAA clarifies that Response: NOAA agrees with this exist to document visitation, although ‘‘NOAA will not exercise its authority comment. The sanctuary is an excellent the need for one is identified in the under the NMSA to regulate fishing in site to act as a living laboratory to sanctuary management plan. Charles the Sanctuary.’’ understand changes to natural County initiated a method to track 37. Comment: NOAA received a few conditions, shipwrecks, and the visitation to Mallows Bay Park in Spring comments that designation could interaction between them. Many 2017. However, public access also impact hunting and the permitting opportunities for scientific, originates from other nearby sites. As process. In addition, there is no mention archaeological and environmental such, the potential for visitation and of hunting as a recreational activity; research exist through partnerships with demand for services is not known. current hunting regulations, licenses, non-profit maritime organizations, and Should it occur, this demand may aid and permitting should remain as is. universities and colleges with maritime the local economies of the surrounding Response: NOAA’s purpose in archaeology programs being invited to area, particularly for small businesses designating this national marine work with NOAA and the State to that cater to nature-based tourism, sanctuary is to protect maritime cultural undertake research and to encourage heritage tourism, recreational fishing, heritage assets located in the Potomac students to seek thesis and dissertation wildlife viewing, kayaking and boating. River. The FEIS has been updated to topics at Mallows Bay. The College of 42. Comment: NOAA received several include data on hunting activities in the Southern Maryland in particular has comments that sanctuary designation area. NOAA’s analysis of the resources expressed interest in integrating various will have negative economic impacts to has not found any threats from or components of its current and planned local watermen. impacts to these resources from hunting. curriculum, such as studies in robotics Response: NOAA disagrees with this Thus, the terms of designation does not and remote sensing technology, to comment. The principal purpose of the identify hunting as one of the activities partner with the archaeological research sanctuary is to protect, study, interpret subject to regulation, so NOAA cannot of submerged sites in the transect. and manage the extensive impose restrictions on hunting unless 40. Comment: NOAA received many archaeological and historical resources new terms of designation are issued. All comments requesting that NOAA should of the area. Because the authorities for licensing and permitting for hunting consider a visitor center to support managing fishery resources will remain will remain under the jurisdiction of the public awareness, education, and with the PRFC and MD DNR, sanctuary Maryland DNR. interpretation. In addition, the designation will not regulate, alter or comments suggest NOAA should negatively impact commercial or Comments Related to the Draft consider the location of the visitor recreational fishing. Management Plan center to support tourism and possibly 43. Comment: NOAA received a few 38. Comment: NOAA received many to enhance the local economy through comments expressing concern that comments that the sanctuary would visitation. placing any new restrictions on the enhance student education (K–12 and Response: NOAA agrees that Potomac River will adversely impact the higher education), particularly through connecting to the public through ability of DoD to carry out critical increased opportunity for field-based educational and interpretive programs, mission training and operations. In programs. exhibits and interactive experiences, addition, MPNMS tourism will result in Response: NOAA agrees with this including visitor centers, is an increased boat traffic on the river, which comment. The sanctuary offers students important component of all national would interfere with military training a unique experience in multi- marine sanctuaries. Following sanctuary and operations. disciplinary education. This area has designation, NOAA will work with state Response: NOAA disagrees with this recently become a magnet for and local partners to evaluate the types comment. In September 2016, the educational field experiences at all and locations of educational and Department of Navy (DoN) signed on as levels, including several graduate interpretive programs and/or a cooperating agency to participate in

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the development of the sanctuary in the Potomac River may pose a risk to historic resources. NOAA makes designation documents, including the public health. funding decisions for each sanctuary sanctuary regulations, management Response: NOAA does not define based on the annual funding level, plan, and environmental impact water quality as a sanctuary resource program priorities, and site needs. As a statement. DoN coordinated interactions and, as such, will not manage water result, site funding can vary from year and information exchange between quality conditions nor contributing to year which may affect the level of NOAA, Marine Corps Base Quantico, factors. However, NOAA is interested in activities completed in the management Naval Support Facility Indian Head, water quality as it may affect the plan each year. As part of the Naval Support Facility Dahlgren, and wrecks. Therefore, NOAA may monitor management plan for this sanctuary, Blossom Point Research Facility water quality through deployment of NOAA includes a table that described (collectively referred to as Department monitoring buoys or other methods, and the sanctuary activities that could be of Defense (DoD)). NOAA, in may participate in relevant community completed at several funding levels. consultation with the DoN, has activities such as trash clean-ups. NOAA also anticipates a varying level of established a framework for MPNMS 46. Comment: NOAA received one in-kind contributions from co-managers and DoD to co-exist. In developing the comment concerned that special and partners to help support sanctuary proposed rule, NOAA did not anticipate conservation areas that are identified on goals. that many, if any, current DoD activities aeronautical charts would restrict 49. Comment: NOAA received one would adversely impact sanctuary aviation primarily through altitude comment from a non-governmental resources. However, following restrictions and landing requirements. organization requesting opportunity to interagency consultation with DoD Response: NOAA’s purpose in review the Memorandum of Agreement designating this national marine components (including DoN, the Marine (MOA) for joint management of the sanctuary is to protect maritime cultural Corps, and the U.S. Army), NOAA sanctuary between NOAA, the State of heritage assets located in the Potomac revised §§ 922.203(c) and 922.204 and Maryland and Charles County, MD. River. NOAA’s analysis of the resources the terms of designation set forth in Response: NOAA, the State of appendix B to the MPNMS regulations has not found any threats from or impacts to these resources from aircraft. Maryland, and Charles County, MD, at 15 CFR part 922, subpart S. In the have agreed to enter into a formal final regulations, NOAA: (a) Clarifies Thus, air space/altitude of aircraft is not identified in the terms of designation as agreement, referred to as a MOA. This the extent to which the sanctuary agreement establishes the framework for prohibitions may apply to DoD an activity that is subject to regulation. NOAA is precluded from regulating joint management and operation of activities; (b) clarifies the requirement Mallows Bay-Potomac River National for DoD to engage in NMSA section airspace unless change in the terms of designation is issued. Marine Sanctuary, and will be based on 304(d) consultation; and (c) exempts language contained in the draft MOA DoD from the application of emergency 47. Comment: NOAA received one comment expressing concern that available in Appendix D of the FEIS/ regulations issued by NOAA pursuant to FMP. § 922.204. Additionally, the discussions NOAA would have insufficient capacity 50. Comment: NOAA received a few with DoD identified benefits that would for day-to-day enforcement of the rules comments from organizations requesting be provided to DoD through sanctuary of the sanctuary. to have seats on the sanctuary advisory education, public outreach, Response: Upon designation, NOAA council (SAC). interpretation and management. will continue to work with agency co- 44. Comment: NOAA received a few managers and partners to evaluate the Response: NOAA appreciates the comments expressing concern that need for enforcement specific to the interest from members of the public sanctuary designation will have maritime and cultural assets defined as who want to participate with the SAC. negative impacts to local businesses and sanctuary resources. Enforcement of Following designation and pursuant to will restrict local development natural resources and other activities NMSA section 315, NOAA will opportunities. that are not related to sanctuary establish and manage a SAC to advise Response: As is the case at other resources will remain with the existing and make recommendations regarding national marine sanctuaries around the authorities. NOAA often employs the management of the sanctuary. The country, NOAA believes that the ‘‘interpretative’’ enforcement, through SAC may be composed of up to fifteen sanctuary will have a positive impact on education, public outreach, docents and (15) members and, per NMSA section local businesses and the economies of similar non-regulatory means, to help 315, may include: (a) Persons employed the surrounding area. No recent inform users and encourage stewardship by Federal and/or state agencies with economic studies exist to document of the resources. expertise in management of sanctuary visitation, although the need for such 48. Comment: NOAA received a few resources and (b) representatives of studies is identified in the sanctuary comments related to the cost of local user groups (such local user management plan. Charles County designating a national marine sanctuary, groups may include, but are not limited initiated a method to track visitation to including a question related to the to, local fishing interests), conservation Mallows Bay Park in Spring 2017, source of funding for the sanctuary, a and other public interest organizations, however, public access also originates concern that Federal funds are scientific organizations, educational from other nearby sites. As such, the insufficient for sanctuary enforcement organizations, or others interested in the potential for visitation and demand for and another asking about funding protection and multiple use and services is not known. Should it occur, sources for a visitor center. management of sanctuary resources. In this demand may aid the local Response: As a federal agency, its establishment, NOAA will strive to economies of the surrounding area NOAA’s budget is passed by Congress achieve a balanced advisory council particularly for small businesses that and signed into law by the President. composition that best represents the cater to nature-based tourism, heritage NOAA’s budget includes an annual primary sanctuary users and interests. tourism, recreational fishing, wildlife allocation for the management of all In determining the composition of the viewing, kayaking and boating. national marine sanctuaries. The NMSA advisory council, NOAA may consult 45. Comment: NOAA received a few directs NOAA to protect these with the State of Maryland and/or comments that water quality conditions nationally significant ecological and Charles County.

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Comment on the Proposed Regulations coordinate actions under the Coastal Zone Management Act 51. Comment: NOAA received one Endangered Species Act related to the Section 307 of the Coastal Zone comment expressing concern about Atlantic sturgeon critical habitat prior to Management Act (CZMA; 16 U.S.C. giving the Sanctuary Superintendent the sanctuary designation. 1456) requires federal agencies to power to issue emergency regulations. Response: In compliance with consult with a state’s coastal program on Response: As part of the designation, requirements under NEPA and the potential federal regulations having an NOAA will have the authority to issue Endangered Species Act (ESA; Section effect on state waters. Because MPNMS emergency regulations. As described in 7(c)), ONMS requested consultation encompasses a portion of the Maryland the proposed rule (82 FR 2254) and in with NOAA’s National Marine Fisheries state waters and is adjacent to the this final rule, emergency regulations Service (NMFS) to assess whether Commonwealth of Virginia lands and are used in limited cases and under sanctuary designation might have waters, NOAA provided a copy of the specific conditions when there is an impacts to Atlantic sturgeon. NMFS proposed rule and supporting imminent risk to sanctuary resources determined that due to the lack of documents to the Maryland Department and a temporary prohibition would identifiable stressors, sanctuary of the Environment, (MDE) Coastal Zone prevent the destruction or loss of those designation would have no effect on any Management (CZM) Program and resources. Under the regulations at 15 ESA-listed species or critical habitat; see Virginia Coastal Zone Management CFR 922.204, NOAA only issues section 6.1.1 of the FEIS for discussion. Program within the Department of emergency regulations that address an 54. Comment: NOAA received a few Environmental Quality (DEQ) for imminent risk for a fixed amount of comments that NOAA needs to conduct evaluation of Federal consistency under time with a maximum of 6 months that additional consultations. the CZMA. On April 19, 2018, the MDE can only be extended a single time. The Response: NOAA conducted all concurred with NOAA’s consistency emergency regulation also cannot take required consultations during the determination that the proposed action effect without the approval of the preparation of the FEIS. Chapter 6 of the was consistent with the enforceable Governor of Maryland, or his/her FEIS describes the required Federal, policies of the Maryland CZM program. designee. Moreover, a full rulemaking state, and other consultations with state- That same day, DEQ sent a separate process must be undertaken, including recognized tribes that NOAA undertook concurrence letter to NOAA concluding a public comment period, to consider under the requirements of the NMSA, that the project is consistent to the making an emergency regulation National Historic Preservation Act, maximum extent practicable with the permanent. Endangered Species Act, Magnuson- enforceable policies of the Virginia CZM Stevens Fishery Management and program, provided that all applicable Comments on the NEPA Process Conservation Act, Coastal Zone permits and approvals are obtained, and 52. Comment: NOAA received two Management Act, and relevant the project is operated in accordance comments requesting NOAA to extend Executive Orders, and the results of with all applicable federal, state, and the public comment period beyond those actions. local laws and regulations. No federal or March 31, 2017. V. Classification state permits are required for sanctuary Response: NOAA considered these designation, and NOAA has consulted comments during the comment period National Marine Sanctuaries Act and obtained all other required and declined to extend the comment NOAA has determined that the approvals. MPNMS will be operated in period. NOAA fully complied with the designation of the Mallows Bay- accordance with applicable laws and requirements of the NMSA (16 U.S.C. Potomac River National Marine regulations. 1434(a)(1)) and Administrative Sanctuary will not have a negative Executive Order 12866: Regulatory Procedures Act (5 U.S.C. 553) to provide impact on the National Marine Impact adequate opportunity for public Sanctuary System and that sufficient This rule has been determined to be comment. From January 9 to March 31, resources exist to effectively implement not significant for purposes of Executive 2017, NOAA held an 81-day public sanctuary management plans. NOAA Order 12866. comment period, which exceeds the 30- also determined that the requirement to day comment period requirement under complete site characterizations has been Executive Order 13132: Federalism APA, to allow the public time to review met. The final findings for NMSA Assessment the proposal and provide comments. section 304(f) are published on the NOAA has concluded that this NOAA also hosted two public meetings ONMS web page for the Mallows Bay- regulatory action does not have to discuss the proposal and gather Potomac River designation at https:// federalism implications sufficient to comments. In addition to posting a sanctuaries.noaa.gov/mallows- warrant preparation of a federalism Federal Register notice, NOAA potomac/. assessment under Executive Order broadcasted the proposed action National Environmental Policy Act 13132. These sanctuary regulations are through extensive national and local intended only to supplement and media and social media outlets and NOAA has prepared a final complement existing state and local targeted communications to environmental impact statement to laws under the NMSA. Congressional members and staff as well evaluate the environmental effects of the as stakeholders including local/regional rulemaking and alternatives as required Executive Order 13795: Implementing conservation NGOs, local tourism by NEPA (42 U.S.C. 4321 et seq.) and an America-First Offshore Energy agencies and other business interests, the NMSA. The Notice of Availability Strategy local/regional elected officials, (84 FR 25257) is available at https:// On April 28, 2017, Executive Order university and academic researchers, sanctuaries.noaa.gov/mallows- 13795—Implementing an America-First recreational divers, commercial and potomac/. NOAA has also prepared a Offshore Energy Strategy was signed by recreational fishing interests, and Record of Decision (ROD). Copies of the the President. Section 4(a) of E.O. 13795 federal/state/local partners. ROD and FEIS are available at the requires the Secretary of Commerce 53. Comment: NOAA received one address and website listed in the (acting through NOAA) to receive from comment requesting that NOAA ADDRESSES section of this rule. the Department of the Interior (DOI) a

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full accounting of the energy or mineral meet the National Register criteria. 553) or any other statute, unless the resource potential of any area proposed NOAA does not believe this action will agency certifies that the rule will not for sanctuary designation or expansion, cause any adverse impacts to historic or have a significant economic impact on including information on the potential cultural resources as a result of any of a substantial number of small entities. impact the proposed designation or the alternatives presented in the FEIS. Under section 605(b) of the RFA, if the expansion will have on the In March 2017, ONMS sent a letter to head of an agency (or his or her development of those resources. the SHPO requesting concurrence on designee) certifies that a rule will not On December 22, 2016, NOAA sent that finding. In a June 19, 2017, letter to have a significant impact on a DOI a letter providing notice of the ONMS, the SHPO concurred that substantial number of small entities, the NOAA’s proposal to designate two new sanctuary designation would have no agency is not required to prepare a national marine sanctuaries in adverse effect on historic properties. regulatory flexibility analysis. Pursuant Wisconsin and Maryland pursuant to NOAA invited state recognized tribes to section 605(b), the Chief Counsel for the NMSA (16 U.S.C. 1431 et seq.). to be consulting parties under Section Regulation, Department of Commerce, Although NOAA believed that neither of 106 of the NHPA (54 U.S.C. 306108), submitted a memorandum to the Chief these proposed sanctuaries were within pursuant to 36 CFR 800.2. On January Counsel for Advocacy, Small Business DOI’s leasing authorities pursuant to the 3, 2017, NOAA sent a letter to the Administration, certifying that original Outer Continental Shelf Lands Act, Piscataway Conoy Confederacy and proposed rule would not have a NOAA requested in a subsequent letter Sub-Tribes and the Piscataway Indian significant impact on a substantial on April 11, 2018 that DOI evaluate Nation, both located in Maryland, number of small entities. The rationale these designations pursuant to E.O. inviting them to consult on the for that certification was set forth in the 13795 (4)(b). On May 7, 2018, DOI proposed designation. NOAA contacted preamble of that rule (82 FR 2254). responded to NOAA’s letter confirming each of the tribes again on March 2, Although NOAA has made a few that lands underlying the proposed 2017, and on November 3, 2017. changes to the regulations from the sanctuary are state lands and thus are Although NOAA received no written proposed rule to the final rule, none of not managed by DOI and that DOI has response to these communications, the changes alter the initial no plans for energy or mineral resource members of the Piscataway Conoy determination that this rule will not development in the area. Confederacy and Sub-Tribes have an impact on small businesses participated in local community events included in the original analysis. NOAA National Historic Preservation Act related to the proposed sanctuary and also did not receive any comments on The National Historic Preservation on March 7 and March 9, 2017, offered the certification or conclusions. Act (NHPA; 16 U.S.C. 470 et seq.) is verbal comments related to the Therefore, the determination that this intended to preserve historical and proposed sanctuary. On March 22, 2017, rule will not have a significant archaeological sites in the United States the secretary of the Patawomeck Tribe of economic impact on a substantial of America. The act created the National Virginia submitted written comments on number small entities remains Register of Historic Places, the list of the proposed designation. On October unchanged. As a result, a final National Historic Landmarks, and State 16, and November 20, 2017, ONMS regulatory flexibility analysis is not Historic Preservation Offices. Section contacted the Patawomeck Tribe of required and has not been prepared. 106 of the NHPA requires Federal Virginia and invited them to discuss Paperwork Reduction Act agencies to take into account the effects their relationship to the proposed of their undertakings on historic sanctuary. During a phone conversation ONMS has a valid Office of properties, and afford the Advisory on November 29, 2017, Chief John Management and Budget (OMB) control Council on Historic Preservation Lightner offered no present-day number (0648–0141) for the collection (ACHP) a reasonable opportunity to concerns relative to the proposed of public information related to the comment. The historic preservation sanctuary and expressed interests in processing of ONMS permits across the review process mandated by Section learning more about opportunities to National Marine Sanctuary System. 106 is outlined in regulations issued by engage directly with the sanctuary on NOAA’s designation of MPNMS would ACHP (36 CFR parts 800 through 812). topics related to interpreting the likely result in an increase in the In fulfilling its responsibilities under heritage of the Patawomeck Tribe of number of requests for ONMS general the NHPA, NOAA consulted with the Virginia. ONMS contacted Chief permits, special use permits, Maryland State Historic Preservation Lightner again via email and phone on certifications, and authorizations Officer (SHPO), and completed the March 9, 2018, via email on April 17, because this action proposes to add identification of historic properties and 2018, and via phone on April 23, 2018, general permits and special use permits, the assessment of the effects of the soliciting additional written comments. certifications, appeals, and the authority undertaking on such properties in However, NOAA received no additional to authorize other valid federal, state, or scheduled consultations with those written response to these local leases, permits, licenses, identified parties and the SHPO. communications. ONMS looks forward approvals, or other authorizations. An Pursuant to 36 CFR 800.16(l)(1), historic to working with the Piscataway Conoy increase in the number of ONMS permit properties includes any prehistoric or Confederacy and Sub-Tribes, the requests would require a change to the historic district, site, building, structure Piscataway Indian Nation, and the reporting burden certified for OMB or object included in, or eligible for Patawomenck Tribe of Virginia. control number 0648–0141. inclusion in, the National Register of Nationwide, NOAA issues Historic Places maintained by the Regulatory Flexibility Act approximately 555 national marine Secretary of the Interior. The term The Regulatory Flexibility Act (RFA), sanctuary permits each year. MPNMS is includes artifacts, records, and remains as amended and codified at 5 U.S.C. 601 expected to issue an additional 4 to 5 that are related to and located within et seq., requires an agency to prepare a permit requests per year. This is such properties. The term includes regulatory flexibility analysis of any rule between 0.7% and 0.9% increase in properties of traditional religious and subject to the notice and comment number of permits annually. NOAA cultural importance to an Indian tribe or rulemaking requirements under the estimates there are on average three Native Hawaiian organization and that Administrative Procedure Act (5 U.S.C. responses per permit each, averaging a

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public reporting burden for national ■ 3. Amend § 922.3 by revising the promulgated under this part, subject to marine sanctuaries permits of 1.5 hours definition of ‘‘Sanctuary resource’’ to all prohibitions, regulations, per response, including the time for read as follows: restrictions, and conditions validly reviewing instructions, searching imposed by any Federal, State, or local § 922.3 Definitions. existing data sources, gathering and authority of competent jurisdiction, maintaining the data needed and * * * * * including but not limited to, Federal, completing and reviewing the collection Sanctuary resource means any living Tribal, and State fishery management of information. NOAA renewed the or non-living resource of a National authorities, and subject to the existing OMB control number for ONMS Marine Sanctuary that contributes to the provisions of section 312 of the National permits in July 2018 (through 2021). conservation, recreational, ecological, Marine Sanctuaries Act (NMSA) (16 Therefore, we estimate that the minimal historical, research, educational, or U.S.C. 1431 et seq.). The Assistant amount of additional permits falls aesthetic value of the Sanctuary, Administrator may only directly within the total estimated for the 2018 including, but not limited to, the regulate fishing activities pursuant to renewal. The form and application substratum of the area of the Sanctuary, the procedure set forth in section process for Mallows Bay permits would other submerged features and the 304(a)(5) of the NMSA. surrounding seabed, carbonate rock, be identical to the one approved in ■ 7. Revise § 922.43 to read as follows: 2018. corals and other bottom formations, coralline algae and other marine plants § 922.43 Prohibited or otherwise regulated Comments on this determination were and algae, marine invertebrates, brine- activities. solicited in the proposed rule but no seep biota, phytoplankton, zooplankton, The site-specific regulations public comments were received. fish, seabirds, sea turtles and other Notwithstanding any other provision of applicable to the activities specified marine reptiles, marine mammals and therein are set forth in the subparts law, no person is required to respond to, historical resources. For Thunder Bay nor shall any person be subject to a covered by this part. National Marine Sanctuary and ■ 8. Revise § 922.44 to read as follows: penalty for failure to comply with a Underwater Preserve, Sanctuary collection of information subject to the resource means an underwater cultural § 922.44 Emergency regulations. requirements of the Paperwork resource as defined at § 922.191. For (a) Where necessary to prevent or Reduction Act, unless that collection of Mallows Bay-Potomac River National minimize the destruction of, loss of, or information displays a currently valid Marine Sanctuary, Sanctuary resource is injury to a Sanctuary resource or OMB control number. defined at § 922.201(a). quality, or minimize the imminent risk List of Subjects in 15 CFR Part 922 * * * * * of such destruction, loss, or injury, any ■ 4. Revise § 922.40 to read as follows: and all such activities are subject to Administrative practice and immediate temporary regulation, procedure, Coastal zone, Historic § 922.40 Purpose. including prohibition. preservation, Intergovernmental The purpose of the regulations in this (b) The provisions of this section do relations, Marine resources, Natural subpart and in the site-specific subparts not apply to the following national resources, Penalties, Recreation and in this part is to implement the marine sanctuaries with site-specific recreation areas, Reporting and designations of the National Marine regulations that establish procedures for recordkeeping requirements, Wildlife. Sanctuaries by regulating activities issuing emergency regulations: Nicole R. LeBoeuf, affecting them, consistent with their (1) Cordell Bank National Marine Acting Assistant Administrator, National respective terms of designation in order Sanctuary, § 922.112(e). Ocean Service. to protect, preserve and manage and (2) Florida Keys National Marine thereby ensure the health, integrity and Sanctuary, § 922.165. Accordingly, for the reasons continued availability of the (3) Hawaiian Islands Humpback discussed in the preamble, the National conservation, ecological, recreational, Whale National Marine Sanctuary, Oceanic and Atmospheric research, educational, historical and § 922.185. Administration amends 15 CFR part 922 aesthetic resources and qualities of (4) Thunder Bay National Marine as follows: these areas. Additional purposes of the Sanctuary, § 922.196. regulations implementing the (5) Mallows Bay-Potomac River PART 922—NATIONAL MARINE designation of the Florida Keys and National Marine Sanctuary, § 922.204. SANCTUARY PROGRAM Hawaiian Islands Humpback Whale (6) [Reserved] REGULATIONS National Marine Sanctuaries are found § 922.47 [Amended] at §§ 922.160 and 922.180, respectively. ■ 1. The authority citation for 15 CFR ■ 5. Revise § 922.41 to read as follows: ■ 9. Amend § 922.47(b) by removing part 922 continues to read as follows: ‘‘subparts F through P, and subpart R’’ § 922.41 Boundaries. Authority: 16 U.S.C. 1431 et seq. and adding ‘‘subparts F through P and The boundary for each of the National R through T of this part’’ in its place. ■ 2. Revise § 922.1 to read as follows: Marine Sanctuaries is set forth in the ■ 10. Revise § 922.48 to read as follows: site-specific regulations covered by this § 922.1 Applicability of regulations in this § 922.48 National Marine Sanctuary part. part. ■ 6. Revise § 922.42 to read as follows: permits—application procedures and Unless noted otherwise, the issuance criteria. regulations in subparts A, D, and E of § 922.42 Allowed activities. (a) A person may conduct an activity this part apply to all National Marine All activities (e.g., fishing, boating, prohibited by subparts F through O and Sanctuaries and related site-specific diving, research, education) may be S and T of this part, if conducted in regulations set forth in this part. conducted unless prohibited or accordance with the scope, purpose, Subparts B and C of this part apply to otherwise regulated in the site-specific terms and conditions of a permit issued the sanctuary nomination process and to regulations covered by this part, subject under this section and subparts F the designation of future Sanctuaries. to any emergency regulations through O and S and T, as appropriate.

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For the Florida Keys National Marine be communicated in writing to the (i) The granting, denial, conditioning, Sanctuary, a person may conduct an permittee or applicant by certified mail amendment, suspension or revocation activity prohibited by subpart P of this and shall set forth the reason(s) for the by the Director of a National Marine part if conducted in accordance with the action taken. Procedures governing Sanctuary or Special Use permit; scope, purpose, terms and conditions of permit sanctions and denials for (ii) The conditioning, amendment, a permit issued under § 922.166. For the enforcement reasons are set forth in suspension or revocation of a Thunder Bay National Marine Sanctuary subpart D of 15 CFR part 904. certification under § 922.47; or and Underwater Preserve, a person may ■ 11. Amend § 922.49 as follows: (iii) For those Sanctuaries described conduct an activity prohibited by ■ a. In paragraph (a) introductory text, in subparts L through P and R through subpart R of this part in accordance remove ‘‘subparts L through P, or T of this part, the objection to issuance with the scope, purpose, terms and subpart R’’ and add ‘‘subparts L through of or the imposition of terms and conditions of a permit issued under P of this part, or subparts R through T conditions on a lease, permit, license or § 922.195. of this part’’ in its place; other authorization issued by any (b) Applications for permits to ■ b. Revise paragraphs (a)(2), (b), (c), Federal, State, or local authority of conduct activities otherwise prohibited and (g). competent jurisdiction. by subparts F through O and S and T of The revisions read as follows: (2) For those National Marine Sanctuaries described in subparts F this part, should be addressed to the § 922.49 Notification and review of Director and sent to the address through K and S and T of this part, any applications for leases, licenses, permits, interested person may also appeal the specified in subparts F through O of this approvals, or other authorizations to part, or subparts R through T of this conduct a prohibited activity. same actions described in paragraphs part, as appropriate. An application (a)(1)(i) and (ii) of this section. For (a) * * * appeals arising from actions taken with must include: (2) The applicant complies with the respect to these National Marine (1) A detailed description of the other provisions of this section; proposed activity including a timetable Sanctuaries, the term ‘‘appellant’’ * * * * * includes any such interested persons. for completion; (b) Any potential applicant for an (2) The equipment, personnel and (b) An appeal under paragraph (a) of authorization described in paragraph (a) this section must be in writing, state the methodology to be employed; of this section may request the Director (3) The qualifications and experience action(s) by the Director appealed and to issue a finding as to whether the of all personnel; the reason(s) for the appeal, and be (4) The potential effects of the activity for which an application is received within 30 days of receipt of activity, if any, on Sanctuary resources intended to be made is prohibited by notice of the action by the Director. and qualities; and subparts L through P of this part, or Appeals should be addressed to the (5) Copies of all other required subparts R through T of this part, as Assistant Administrator for Ocean licenses, permits, approvals or other appropriate. Services and Coastal Zone Management, authorizations. (c) Notification of filings of NOAA 1305 East-West Highway, 13th (c) Upon receipt of an application, the applications should be sent to the Floor, Silver Spring, MD 20910. Director may request such additional Director, Office of National Marine (c)(1) The Assistant Administrator information from the applicant as he or Sanctuaries at the address specified in may request the appellant to submit she deems necessary to act on the subparts L through P of this part, or such information as the Assistant application and may seek the views of subparts R through T of this part, as Administrator deems necessary in order any persons or entity, within or outside appropriate. A copy of the application for him or her to decide the appeal. The the Federal government, and may hold must accompany the notification. information requested must be received a public hearing, as deemed * * * * * by the Assistant Administrator within appropriate. (g) Any time limit prescribed in or 45 days of the postmark date of the (d) The Director, at his or her established under this section may be request. The Assistant Administrator discretion, may issue a permit, subject extended by the Director for good cause. may seek the views of any other to such terms and conditions as he or * * * * * persons. For the Monitor National she deems appropriate, to conduct a ■ 12. Revise § 922.50 to read as follows: Marine Sanctuary, if the appellant has prohibited activity, in accordance with requested a hearing, the Assistant the criteria found in subparts F through § 922.50 Appeals of administrative action. Administrator shall grant an informal O of this part, or subparts R through T (a)(1) Except for permit actions taken hearing. For all other National Marine of this part, as appropriate. The Director for enforcement reasons (see subpart D Sanctuaries, the Assistant Administrator shall further impose, at a minimum, the of 15 CFR part 904 for applicable may determine whether to hold an conditions set forth in the relevant procedures), an applicant for, or a informal hearing on the appeal. If the subpart. holder of, a National Marine Sanctuary Assistant Administrator determines that (e) A permit granted pursuant to this permit; an applicant for, or a holder of, an informal hearing should be held, the section is nontransferable. a Special Use permit issued pursuant to Assistant Administrator may designate (f) The Director may amend, suspend, section 310 of the Act; a person an officer before whom the hearing shall or revoke a permit issued pursuant to requesting certification of an existing be held. this section for good cause. The Director lease, permit, license or right of (2) The hearing officer shall give may deny a permit application pursuant subsistence use or access under notice in the Federal Register of the to this section, in whole or in part, if it § 922.47; or, for those Sanctuaries time, place and subject matter of the is determined that the permittee or described in subparts L through P and hearing. The appellant and the Director applicant has acted in violation of the R through T of this part, an applicant for may appear personally or by counsel at terms and conditions of a permit or of a lease, permit, license or other the hearing and submit such material the regulations set forth in this section authorization issued by any Federal, and present such arguments as deemed or subparts F through O of this part, or State, or local authority of competent appropriate by the hearing officer. subparts R through T of this part or for jurisdiction (hereinafter appellant) may Within 60 days after the record for the other good cause. Any such action shall appeal to the Assistant Administrator: hearing closes, the hearing officer shall

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recommend a decision in writing to the boundary continues to the north pursuant to the Act. However, NOAA Assistant Administrator. approximating the border between shall co-manage the Sanctuary in (d) The Assistant Administrator shall Virginia and Maryland cutting across collaboration with the State of Maryland decide the appeal using the same the mouths of streams and creeks and Charles County. The Director shall regulatory criteria as for the initial passing through the points in numerical enter into a Memorandum of Agreement decision and shall base the appeal order until it reaches Point 40 north of regarding this collaboration that shall decision on the record before the Tank Creek. From this point the address, but not be limited to, such Director and any information submitted sanctuary boundary continues east aspects as areas of mutual concern, regarding the appeal, and, if a hearing across the Potomac River in a straight including Sanctuary programs, has been held, on the record before the line towards Point 41 until it intersects permitting, activities, development, and hearing officer and the hearing officer’s the Maryland shoreline just north of threats to Sanctuary resources. recommended decision. The Assistant Sandy Point in Charles County, Administrator shall notify the appellant Maryland. From this intersection the § 922.203 Prohibited or otherwise regulated activities. of the final decision and the reason(s) sanctuary boundary then follows the therefore in writing. The Assistant Maryland shoreline south around (a) Except as specified in paragraphs Administrator’s decision shall Mallows Bay, Blue Banks, and Wades (b) and (c) of this section, the following constitute final agency action for the Bay cutting across the mouths of creeks activities are prohibited and thus are purpose of the Administrative and streams along the eastern shoreline unlawful for any person to conduct or Procedure Act. of the Potomac River until it intersects to cause to be conducted: (e) Any time limit prescribed in or the line formed between Point 42 and (1) Moving, removing, recovering, established under this section other Point 43 just south of Smith Point. altering, destroying, possessing, or than the 30-day limit for filing an appeal Finally, from this intersection the otherwise injuring, or attempting to may be extended by the Assistant sanctuary boundary crosses the Potomac move, remove, recover, alter, destroy, Administrator or hearing office for good River to the west in a straight line until possess or otherwise injure a Sanctuary cause. it reaches Point 43 north of the mouth resource, except as an incidental result ■ 13. Add subpart S to read as follows: of Aquia Creek in Stafford County, of traditional fishing. This prohibition Virginia, near Brent Point. does not apply to possessing historical SUBPART S—MALLOWS BAY— resources removed from the Sanctuary POTOMAC RIVER NATIONAL MARINE § 922.201 Definitions. area before the effective date of the SANCTUARY (a) The following terms are defined Sanctuary designation. for purposes of this subpart: (2) Marking, defacing, or damaging in Sec. (1) Sanctuary resource means any any way, or displacing or removing or 922.200 Boundary. historical resource with the Sanctuary tampering with any signs, notices, or 922.201 Definitions. boundaries, as defined in § 922.3. This 922.202 Joint management. placards, whether temporary or 922.203 Prohibited or otherwise regulated includes, but is not limited to, any permanent, or with any monuments, activities. sunken watercraft and any associated stakes, posts, buoys, or other boundary 922.204 Emergency regulations. rigging, gear, fittings, trappings, and markers related to the Sanctuary. 922.205 Permit procedures and review equipment; the personal property of the (3) Interfering with, obstructing, criteria. officers, crew, and passengers, and any delaying or preventing an investigation, 922.206 Certification of preexisting leases, cargo; and any submerged or partially search, seizure or disposition of seized licenses, permits, approvals, other submerged prehistoric, historic, cultural authorizations, or rights to conduct a property in connection with remains, such as docks, piers, fishing- enforcement of the Act or any regulation prohibited activity. related remains (e.g., weirs, fish-traps) Appendix A to Subpart S of Part 922— or any permit issued under the Act. or other cultural heritage materials. Mallows Bay-Potomac River Marine (b) The prohibitions in paragraphs Sanctuary Boundary Description and Sanctuary resource also means any (a)(1) through (3) of this section do not Coordinates of the Lateral Boundary archaeological, historical, and cultural apply to any activity necessary to Closures and Excluded Areas remains associated with or respond to an emergency threatening Appendix B to Subpart S of Part 922— representative of historic or prehistoric life, property or the environment; or to Mallows Bay-Potomac River Marine American Indians and historic groups or Sanctuary Terms of Designation activities necessary for valid law peoples and their activities. enforcement purposes. (2) Traditional fishing means those § 922.200 Boundary. commercial, recreational, and (c)(1) All military activities shall be The Mallows Bay-Potomac River subsistence fishing activities that were carried out in a manner that avoids to National Marine Sanctuary consists of customarily conducted within the the maximum extent practicable any an area of approximately 18 square Sanctuary prior to its designation or adverse impact on sanctuary resources miles of waters of the state of Maryland expansion, as identified in the relevant and qualities. and the submerged lands thereunder, Final Environmental Impact Statement (2) Any existing military activity over, around, and under the underwater and Management Plan for this conducted by DoD prior to the effective cultural resources in the Potomac River. Sanctuary. date of the regulations in this subpart The precise boundary coordinates are (b) All other terms appearing in the and as specifically identified in the listed in appendix A to this subpart. The regulations in this subpart are defined at Final Environmental Impact Statement western boundary of the sanctuary 15 CFR 922.3, and/or in the Marine and Final Management Plan for the approximates the border between the Protection, Research, and Sanctuaries Sanctuary (FEIS/FMP) is allowed to Commonwealth of Virginia and the Act, as amended, 33 U.S.C. 1401 et seq., continue in the Sanctuary. The State of Maryland along the western and 16 U.S.C. 1431 et seq. prohibitions in paragraphs (a)(1) side of the Potomac River and begins at through (3) of this section do not apply Point 1 north of the mouth of Aquia § 922.202 Joint management. to those existing military activities or to Creek in Stafford County, Virginia, near NOAA has primary responsibility for the following military activities Brent Point. From this point the the management of the Sanctuary conducted by DoD:

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(i) Low-level overflight of military § 922.205 Permit procedures and review (6) The applicant is professionally aircraft operated by DoD; criteria. qualified to conduct and complete the (ii) The designation of new units of (a) Authority to issue general permits. proposed activity. special use airspace; The Director may allow a person to (7) The applicant has adequate (iii) The use or establishment of conduct an activity that would financial resources available to conduct military flight training routes; otherwise be prohibited by this subpart, and complete the proposed activity and (iv) Air or ground access to existing or through issuance of a general permit, terms and conditions of the permit. new electronic tracking provided the applicant complies with: (8) There are no other factors that communications sites associated with (1) The provisions of subpart E of this would make the issuance of a permit for special use airspace or military flight part; and the activity inappropriate. training routes; or (2) The relevant site-specific regulations appearing in this subpart. § 922.206 Certification of preexisting (v) Activities to reduce or eliminate a leases, licenses, permits, approvals, other threat to human life or property (b) Sanctuary general permit categories. The Director may issue a authorizations, or rights to conduct a presented by unexploded ordnances or prohibited activity. munitions. sanctuary general permit under this subpart, subject to such terms and (a) A person may conduct an activity (3) New military activities that do not conditions as he or she deems prohibited by § 922.203(a)(1) through (3) violate the prohibitions in paragraphs appropriate, if the Director finds that the if such activity is specifically authorized (a)(1) through (3) of this section are proposed activity falls within one of the by a valid Federal, state, or local lease, allowed. Any new military activity that following categories: permit, license, approval, or other is likely to violate sanctuary (1) Research—activities that constitute authorization, or tribal right of prohibitions may become exempt scientific research on or scientific subsistence use or access in existence through consultation between the monitoring of national marine sanctuary prior to the effective date of sanctuary Director and DoD pursuant to section resources or qualities; designation and within the sanctuary 304(d) of the NMSA. For purposes of (2) Education—activities that enhance designated area and complies with this paragraph (c)(3), the term ‘‘new public awareness, understanding, or § 922.49 and provided that the holder of military activity’’ includes but is not appreciation of a national marine the lease, permit, license, approval, or limited to, any existing military activity sanctuary or national marine sanctuary other authorization complies with the that is modified in any way (including resources or qualities; or requirements of paragraph (e) of this change in location, frequency, duration, (3) Management—activities that assist section. or technology used) that is likely to in managing a national marine (b) In considering whether to make destroy, cause the loss of, or injure a sanctuary. the certifications called for in this sanctuary resource, or is likely to (c) Review criteria. The Director shall section, the Director may seek and destroy, cause the loss of, or injure a not issue a permit under this subpart, consider the views of any other person sanctuary resource in a manner or to an unless he or she also finds that: or entity, within or outside the Federal extent that was not considered in a (1) The proposed activity will be government, and may hold a public previous consultation under section conducted in a manner compatible with hearing as deemed appropriate. 304(d) of the NMSA. the primary objective of protection of (c) The Director may amend, suspend, (4) In the event of destruction of, loss national marine sanctuary resources and or revoke any certification made under of, or injury to a sanctuary resource or qualities, taking into account the this section whenever continued quality resulting from an incident, following factors: operation would otherwise be including but not limited to spills and (i) The extent to which the conduct of inconsistent with any terms or groundings caused by DoD, the the activity may diminish or enhance conditions of the certification. Any such cognizant component shall promptly national marine sanctuary resources and action shall be forwarded in writing to coordinate with the Director for the qualities; and both the holder of the certified permit, purpose of taking appropriate actions to (ii) Any indirect, secondary or license, or other authorization and the prevent, respond to or mitigate the harm cumulative effects of the activity. issuing agency and shall set forth and, if possible, restore or replace the (2) It is necessary to conduct the reason(s) for the action taken. sanctuary resource or quality. proposed activity within the national (d) Requests for findings or marine sanctuary to achieve its stated certifications should be addressed to the § 922.204 Emergency regulations. purpose. Director, Office of National Marine (a) Where necessary to prevent or (3) The methods and procedures Sanctuaries; ATTN: Sanctuary minimize the destruction of, loss of, or proposed by the applicant are Superintendent, Mallows Bay-Potomac injury to a Sanctuary resource, or to appropriate to achieve the proposed National Marine Sanctuary, 1305 East minimize the imminent risk of such activity’s stated purpose and eliminate, West Hwy., 11th Floor, Silver Spring, destruction, loss, or injury, any and all minimize, or mitigate adverse effects on MD 20910. A copy of the lease, permit, activities, other than DoD activities, are sanctuary resources and qualities as license, approval, or other authorization subject to immediate temporary much as possible. must accompany the request. regulation, including prohibition. An (4) The duration of the proposed (e) For an activity described in emergency regulation shall not take activity and its effects are no longer than paragraph (a) of this section, the holder effect without the approval of the necessary to achieve the activity’s stated of the authorization or right may Governor of Maryland or her/his purpose. conduct the activity prohibited by designee or designated agency. (5) The expected end value of the § 922.203(a)(1) through (3) provided (b) Emergency regulations remain in activity to the furtherance of national that: effect until a date fixed in the rule or six marine sanctuary goals and purposes (1) The holder of such authorization months after the effective date, outweighs any potential adverse or right notifies the Director, in writing, whichever is earlier. The rule may be impacts on sanctuary resources and within 180 days of the Federal Register extended once for not more than six qualities from the conduct of the notification announcing of effective date months. activity. of the Sanctuary designation, of the

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existence of such authorization or right Appendix A to Subpart S of Part 922— waters and submerged lands located off the and requests certification of such Mallows Bay-Potomac River Marine Nanjemoy Peninsula of Charles County, authorization or right; Sanctuary Boundary Description and Maryland, and along the tidal Potomac River and its surrounding waters are hereby (2) The holder complies with the Coordinates of the Lateral Boundary designated as a National Marine Sanctuary other provisions of this section; and Closures and Excluded Areas for the purposes of providing long-term protection and management of the historical (3) The holder complies with any Coordinates listed in this appendix are unprojected (Geographic) and based on the resources and recreational, research, terms and conditions on the exercise of North American Datum of 1983. educational, and aesthetic qualities of the such authorization or right imposed as area. a condition of certification, by the TABLE 1—COORDINATES FOR Article I: Effect of Designation Director, to achieve the purposes for SANCTUARY The NMSA authorizes the issuance of such which the Sanctuary was designated. regulations as are necessary and reasonable (f) The holder of an authorization or Point ID Latitude Longitude to implement the designation, including right described in paragraph (a) of this managing and protecting the historical 1 ...... 38.39731 ¥77.31008 section authorizing an activity resources and recreational, research, and 2 ...... 38.39823 ¥77.31030 educational qualities of the Mallows Bay- prohibited by § 922.203 may conduct 3 ...... 38.39856 ¥77.31059 Potomac River National Marine Sanctuary the activity without being in violation of 4 ...... 38.39886 ¥77.31074 (the ‘‘Sanctuary’’). Section 1 of Article IV of applicable provisions of § 922.203, 5 ...... 38.39917 ¥77.31067 this appendix lists those activities that may pending final agency action on his or 6 ...... 38.40014 ¥77.31074 have to be regulated on the effective date of ¥ her certification request, provided the 7 ...... 38.40090 77.31145 designation, or at some later date, in order to 8 ...... 38.40138 ¥77.31215 holder is otherwise in compliance with protect Sanctuary resources and qualities. 9 ...... 38.40197 ¥77.31236 Listing an activity does not necessarily mean this section. 10 ...... 38.40314 ¥77.31278 that it will be regulated; however, if an (g) The Director may request 11 ...... 38.40658 ¥77.31377 activity is not listed it may not be regulated, ¥ additional information from the 12 ...... 38.40984 77.31465 except on an emergency basis, unless Section 13 ...... 38.41388 ¥77.31692 certification requester as he or she 1 of Article IV is amended by the same 14 ...... 38.41831 ¥77.31913 procedures by which the original Sanctuary deems reasonably necessary to 15 ...... 38.41974 ¥77.31930 designation was made. condition appropriately the exercise of 16 ...... 38.42352 ¥77.31971 the certified authorization or right to 17 ...... 38.42548 ¥77.32030 Article II: Description of the Area achieve the purposes for which the 18 ...... 38.42737 ¥77.32081 The Mallows Bay-Potomac River National Sanctuary was designated. The Director 19 ...... 38.43091 ¥77.32240 Marine Sanctuary consists of an area of ¥ approximately 18 square miles of waters of must receive the information requested 20 ...... 38.43163 77.32242 21 ...... 38.43350 ¥77.32263 the State of Maryland and the submerged within 45 days of the postmark date of 22 ...... 38.43384 ¥77.32269 lands thereunder, over, around, and under the request. The Director may seek the 23 ...... 38.43430 ¥77.32265 the underwater cultural resources in the views of any persons on the certification 24 ...... 38.43461 ¥77.32229 Potomac River between Stafford County, request. 25 ...... 38.43498 ¥77.32146 Virginia, and Charles County, Maryland. The 26 ...... 38.43526 ¥77.32057 western boundary of the sanctuary (h) The Director may amend any 27 ...... 38.43522 ¥77.32040 approximates the border between the certification made under this section 28 ...... 38.47321 ¥77.31845 Commonwealth of Virginia and the State of whenever additional information 29 ...... 38.47434 ¥77.31874 Maryland for roughly 6 miles along the becomes available that he/she 30 ...... 38.47560 ¥77.31752 Potomac River, beginning north of the mouth determines justifies such an 31 ...... 38.47655 ¥77.31686 of Aquia Creek in Stafford County, Virginia, ¥ near Brent Point and continuing north past amendment. 32 ...... 38.47748 77.31666 33 ...... 38.47821 ¥77.31604 Widewater, VA, and Clifton Point to a point (i) Upon completion of review of the 34 ...... 38.47871 ¥77.31554 north of Tank Creek. From this point the authorization or right and information 35 ...... 38.47885 ¥77.31563 sanctuary boundary crosses the Potomac to received with respect thereto, the 36 ...... 38.47905 ¥77.31559 the east until it intersects the Maryland shoreline just north of Sandy Point in Charles Director shall communicate, in writing, 37 ...... 38.47921 ¥77.31578 ¥ County, MD. From this point the eastern any decision on a certification request 38 ...... 38.47943 77.31592 39 ...... 38.47985 ¥77.31592 boundary of the sanctuary, approximately 8 or any action taken with respect to any 40 ...... 38.48493 ¥77.31335 miles in total length, follows the Maryland certification made under this section, in 41 * ...... 38.48554 ¥77.27298 shoreline south past Mallows Bay, Blue writing, to both the holder of the 42 * ...... 38.39793 ¥77.25704 Banks, and Wades Bay to a point just south certified lease, permit, license, approval, 43 ...... 38.39731 ¥77.31008 of Smith Point. From this location the sanctuary boundary crosses the Potomac other authorization, or right, and the River to the west back to its point of origin issuing agency, and shall set forth the Note 1 to table 1 of this appendix: The north of the mouth of Aquia Creek near Brent reason(s) for the decision or action coordinates in the table above marked with Point on the Virginia side of the river. taken. an asterisk (*) are not a part of the sanctuary boundary. These coordinates are landward Article III: Special Characteristics of the Area (j) The holder may appeal any action reference points used to draw a line segment Mallows Bay-Potomac River National conditioning, amending, suspending, or that intersects with the shoreline. Marine Sanctuary and its surrounding waters revoking any certification in accordance contain a diverse collection more than 100 with the procedures set forth in Appendix B to Subpart S of Part 922— known historic shipwreck vessels dating § 922.50. Mallows Bay-Potomac River Marine back to the Civil War and potentially dating Sanctuary Terms of Designation back to the Revolutionary War, as well as (k) Any time limit prescribed in or archaeological artifacts dating back 12,000 established under this section may be Terms of Designation for the Mallows Bay– years indicating the presence of some of the Potomac River National Marine Sanctuary extended by the Director for good cause. region’s earliest American Indian cultures, Under the authority of the National Marine including the Piscataway Indian Nation and Sanctuaries Act, as amended (the ‘‘Act’’ or the Piscataway Conoy Confederacy and Sub- ‘‘NMSA’’), 16 U.S.C. 1431 et seq., certain Tribes of Maryland. The area is most

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renowned for the remains of over 100 Section 2. NOAA will not exercise its Section 3. Department of Defense wooden steamships, known as the ‘‘Ghost authority under the NMSA to regulate fishing Activities. DoD activities shall be carried out Fleet,’’ that were built for the U.S. Emergency in the Sanctuary. in a manner that avoids to the maximum Fleet between 1917–1919 as part of U.S. Section 3. Emergencies. Where necessary extent practicable any adverse impacts on engagement in WWI. Their construction at to prevent or minimize the destruction of, sanctuary resources and qualities. Any more than 40 shipyards in 17 states reflects loss of, or injury to a Sanctuary resource; or existing military activity conducted by DoD the massive national wartime effort that minimize the imminent risk of such prior to the effective date of the regulations drove the expansion and economic destruction, loss, or injury, any activity, in this subpart and as specifically identified development of communities and related including those not listed in Section 1, is maritime service industries including the subject to immediate temporary regulation. in the Final Environmental Impact Statement present-day Merchant Marines. The area is An emergency regulation shall not take effect and Final Management Plan for the contiguous to the Captain John Smith without the approval of the Governor of Sanctuary (FEIS/FMP) is allowed to continue Chesapeake National Historic Trail, the Star Maryland or her/his designee or designated in the Sanctuary. The prohibitions in Spangled Banner National Historic Trail, the agency. § 922.203(a)(1) through (3) do not apply to Potomac Heritage National Scenic Trail and those existing military activities listed in the the Lower Potomac Water Trail which offer Article V: Relation to Other Regulatory FEIS/FMP or the military activities Program meaningful educational and recreational conducted by DoD listed in § 922.203(c)(2). opportunities centered on the region’s Section 1. Fishing Regulations, Licenses, New military activities that do not violate the culture, heritage and history. Additionally, and Permits. Fishing in the Sanctuary shall prohibitions in paragraphs (a)(1) through (3) the structure provided by the vessels and not be regulated as part of the Sanctuary of this section are allowed. Any new military related infrastructure serve as important management regime authorized by the Act. activity that is likely to violate sanctuary However, fishing in the Sanctuary may be habitat to thriving populations of recreational prohibitions may become exempt through fisheries, bald eagles, and other aquatic regulated by other Federal, State, Tribal and consultation between the Director and DoD species. The area’s listing on the National local authorities of competent jurisdiction, Historical Register of Places in 2015 codifies and designation of the Sanctuary shall have pursuant to section 304(d) of the NMSA. The the historical, archaeological and recreational no effect on any regulation, permit, or license term ‘‘new military activity’’ includes but is significance of the Ghost Fleet and related issued thereunder. not limited to, any existing military activity maritime cultural heritage sites in and Section 2. Other Regulations, Licenses, and that is modified in any way (including around Mallows Bay-Potomac River National Permits. If any valid regulation issued by any change in location, frequency, duration, or Marine Sanctuary. federal, state, Tribal, or local authority of technology used) that is likely to destroy, competent jurisdiction, regardless of when cause the loss of, or injure a sanctuary Article IV: Scope of Regulations issued, conflicts with a Sanctuary regulation, resource, or is likely to destroy, cause the Section 1. Activities Subject to Regulation. the regulation deemed by the Director of the loss of, or injure a sanctuary resource in a The following activities are subject to Office of National Marine Sanctuaries, manner or to an extent that was not regulation, including prohibition, to the National Oceanic and Atmospheric considered in a previous consultation under extent necessary and reasonable to ensure the Administration, or designee, in consultation section 304(d) of the NMSA. In the event of protection and management of the historical with the State of Maryland, to be more destruction of, loss of, or injury to a resources and recreational, research and protective of Sanctuary resources and sanctuary resource or quality resulting from educational qualities of the area: qualities shall govern. Pursuant to section a. Moving, removing, recovering, altering, 304(c)(1) of the Act, 16 U.S.C. 1434(c)(1), no an incident, including but not limited to destroying, possessing, or otherwise injuring, valid lease, permit, license, approval, or spills and groundings caused by DoD, the or attempting to move, remove, recover, alter, other authorization issued by any federal, cognizant component shall promptly destroy, possess or otherwise injure a state, Tribal, or local authority of competent coordinate with the Director for the purpose Sanctuary resource, except as an incidental jurisdiction, or any right of subsistence use of taking appropriate actions to prevent, result of traditional fishing (as defined in the or access, may be terminated by the Secretary respond to or mitigate the harm and, if regulations). of Commerce, or designee, as a result of this possible, restore or replace the sanctuary b. Marking, defacing, or damaging in any designation, or as a result of any Sanctuary resource or quality. way, or displacing or removing or tampering regulation, if such lease, permit, license, with any signs, notices, or placards, whether approval, or other authorization, or right of Article VI. Alteration of This Designation temporary or permanent, or with any subsistence use or access was issued or in The terms of designation may be modified monuments, stakes, posts, buoys, or other existence as of the effective date of this only by the same procedures by which the boundary markers related to the Sanctuary. designation. However, the Secretary of original designation is made, including c. Interfering with, obstructing, delaying or Commerce or designee, in consultation with public meetings, consultation according to preventing an investigation, search, seizure the State of Maryland, may regulate the the NMSA. or disposition of seized property in exercise of such authorization or right connection with enforcement of the Act or consistent with the purposes for which the [FR Doc. 2019–14368 Filed 7–5–19; 8:45 am] any regulation issued under the Act. Sanctuary is designated. BILLING CODE 3510–NK–P

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Reader Aids Federal Register Vol. 84, No. 130 Monday, July 8, 2019

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

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. 16 CFR Presidential Documents 3 CFR 609...... 31180 Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 9907...... 32013 Proposed Rules: 1112...... 32346 Administrative Orders: Other Services 1239...... 32346 Memorandums: Electronic and on-line services (voice) 741–6020 Memorandum of June 17 CFR Privacy Act Compilation 741–6050 26, 2019 ...... 31457 210...... 32040 7 CFR 232...... 31192 ELECTRONIC RESEARCH 1222...... 31459 Proposed Rules: 1...... 32104 World Wide Web 3201...... 32015 30...... 32105 Proposed Rules: Full text of the daily Federal Register, CFR and other publications 39...... 32104 210...... 31227 is located at: www.govinfo.gov. 140...... 32104 220...... 31227 Federal Register information and research tools, including Public 226...... 31227 21 CFR Inspection List and electronic text are located at: www.federalregister.gov. 8 CFR 10...... 31471 216...... 32268 1003...... 31463 E-mail 800...... 31471 1292...... 31463 FEDREGTOC (Daily Federal Register Table of Contents Electronic 25 CFR 10 CFR Mailing List) is an open e-mail service that provides subscribers Proposed Rules: with a digital form of the Federal Register Table of Contents. The Proposed Rules: 224...... 31529 digital form of the Federal Register Table of Contents includes 40...... 32327 HTML and PDF links to the full text of each document. 70...... 32327 26 CFR To join or leave, go to https://public.govdelivery.com/accounts/ 72...... 32327 1...... 31194, 31717 USGPOOFR/subscriber/new, enter your email address, then 74...... 32327 31...... 31717 follow the instructions to join, leave, or manage your 150...... 31518, 32327 301...... 31478, 31717 subscription. 431...... 31232, 32328 Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail 12 CFR 1...... 31777 service that notifies subscribers of recently enacted laws. 53...... 31795 229...... 31687 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 265...... 31701 27 CFR and select Join or leave the list (or change settings); then follow 365...... 31171 Proposed Rules: the instructions. 390...... 31171 4...... 31257 FEDREGTOC and PENS are mailing lists only. We cannot 1030...... 31687 5...... 31264 respond to specific inquiries. Proposed Rules: 7...... 31264 1003...... 31746 Reference questions. Send questions and comments about the 26...... 31264 27...... 31264 Federal Register system to: [email protected] 14 CFR The Federal Register staff cannot interpret specific documents or 25 ...... 31174, 31176, 31178 30 CFR regulations. 39 ...... 31707, 31710, 32028, Proposed Rules: 32255, 32257, 32260, 32263, 70...... 31809 FEDERAL REGISTER PAGES AND DATE, JULY 32266 71...... 31809 91...... 31713 72...... 31809 31171–31458...... 1 97 ...... 32030, 32033, 32037, 75...... 31809 31459–31686...... 2 32038 90...... 31809 31687–32012...... 3 Proposed Rules: 916...... 32109 32013–32254...... 5 25...... 31522, 31747 918...... 32111 32255–32606...... 8 27...... 31747 29...... 31747 32 CFR 39 ...... 31244, 31246, 31249, 1701...... 31194 31252, 31254, 31524, 31526, 31769, 31772, 31775, 32099, 33 CFR 32101, 32338, 32341, 32343 100...... 32061 91...... 31747 110...... 32269 121...... 31747 165 ...... 31197, 31199, 31200, 125...... 31747 31202, 31480, 31481, 31484, 135...... 31747 31486, 31587, 31490, 31492, 31721, 31722, 31723, 31724, 15 CFR 31725, 32063, 32064, 32272 922...... 32586 207...... 31493

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Proposed Rules: 384...... 32296 435...... 32094 47 CFR 100...... 31810 385...... 32296 Proposed Rules: 165...... 31273, 32112 Proposed Rules: 49...... 31813 2...... 31542 39 CFR 52 ...... 31538, 31540, 31541, 34 CFR 54...... 32117 3020...... 32317 31814, 32356, 32359, 32361 87...... 31542 Ch. II ...... 31726 3060...... 31738 60...... 32114 200...... 31660 62 ...... 31278, 31279, 32363, 299...... 31660 Proposed Rules: 3050...... 31277 32365 49 CFR 600...... 31392 81...... 31814 385...... 32323 668...... 31392 40 CFR 300...... 31281, 31826 Proposed Rules: 37 CFR 52 ...... 31204, 31206, 31682, 721...... 32366 385...... 32379 31684, 31739, 31741, 32066, 2...... 31498 43 CFR 7...... 31498 32068, 32072, 32076, 32317 11...... 31498 60...... 32084, 32520 3830...... 31219 50 CFR 210...... 32274 81...... 32317 648...... 31743 180 ...... 31208, 31214, 32088, 44 CFR 303...... 32296 660...... 31222, 32096 350...... 32296 32320 Proposed Rules: 679...... 31517 355...... 32296 222...... 31512 62...... 32371 370...... 32296 223...... 31512 Proposed Rules: 380...... 32296 224...... 31512 45 CFR 20...... 32385 382...... 32296 228...... 31512 Proposed Rules: Ch. I ...... 31559 383...... 32296 229...... 31512 1323...... 32116

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in today’s List of Public enacted public laws. To Laws. subscribe, go to http:// LIST OF PUBLIC LAWS Public Laws Electronic listserv.gsa.gov/archives/ Last List July 3, 2019 Notification Service publaws-l.html (PENS) Note: No public bills which Note: This service is strictly have become law were for E-mail notification of new received by the Office of the PENS is a free electronic mail laws. The text of laws is not Federal Register for inclusion notification service of newly available through this service. PENS cannot respond to specific inquiries sent to this address.

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