Vol. 85 Wednesday, No. 171 September 2, 2020
Pages 54481–54884
OFFICE OF THE FEDERAL REGISTER
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Contents Federal Register Vol. 85, No. 171
Wednesday, September 2, 2020
Agriculture Department Meetings: See Forest Service President’s Board of Advisors on Historically Black Colleges and Universities, 54540–54541 Alcohol and Tobacco Tax and Trade Bureau RULES Establishment of the Royal Slope Viticultural Area, 54491– Energy Department 54494 See Federal Energy Regulatory Commission See National Nuclear Security Administration Centers for Medicare & Medicaid Services NOTICES RULES Agency Information Collection Activities; Proposals, Medicare and Medicaid Programs, Clinical Laboratory Submissions, and Approvals, 54548–54549 Improvement Amendments, and Patient Protection and Environmental Impact Statements; Availability, etc.: Affordable Care Act: Continued Operation of Los Alamos National Laboratory, Additional Policy and Regulatory Revisions in Response Los Alamos, NM, 54544–54548 to the COVID–19 Public Health Emergency, 54820– Meetings: 54874 Environmental Management Site-Specific Advisory Board, Nevada, 54549 Coast Guard Environmental Management Site-Specific Advisory RULES Board, Northern New Mexico, 54544 Drawbridge Operations: Environmental Management Site-Specific Advisory Fox River, Oshkosh, WI, 54496–54497 Board, Savannah River Site, 54549 Safety Zones: Beals Island Bridge Demolition, Moosabec Reach, Jonesport, ME, 54499–54501 Environmental Protection Agency Delaware River Dredging, Marcus Hook, PA, 54501– RULES 54504 Air Quality State Implementation Plans; Approvals and I–5 Bridge Construction Project, Columbia River, Promulgations: Vancouver, WA, 54497–54499 Kentucky; Jefferson County Existing and New Special Local Regulations: Miscellaneous Metal Parts and Products Surface Atlantic Intracoastal Waterway, Morehead City, NC, Coating Operations, 54510–54513 54494–54496 Kentucky; Prevention of Significant Deterioration and NOTICES Modeling Infrastructure Requirements for 2015 Meetings: Ozone National Ambient Air Quality Standards, Commercial Fishing Safety Advisory Committee, 54587 54507–54509 Texas; Beaumont-Port Arthur Area Second Maintenance Commerce Department Plan for 1997 Ozone National Ambient Air Quality See International Trade Administration Standards, 54504–54507 See National Oceanic and Atmospheric Administration Determination of Failure To Attain by the Attainment Date Defense Department and Denial of Serious Area Attainment Date Extension See Navy Department Request: Alaska: Fairbanks North Star Borough 2006 24-Hour Fine Education Department Particulate Matter Serious Nonattainment Area, RULES 54509–54510 Distance Education and Innovation, 54742–54818 PROPOSED RULES NOTICES Redesignation of Certain Unclassifiable Areas for the 2010 Agency Information Collection Activities; Proposals, 1-Hour Sulfur Dioxide Primary National Ambient Air Submissions, and Approvals: Quality Standard, 54517–54523 2020/22 Beginning Postsecondary Students Field Test, NOTICES 54539 Agency Information Collection Activities; Proposals, Evaluation of the Innovative Assessment Demonstration Submissions, and Approvals: Authority Pilot Program-Survey Data Collection, Public Notification Requirements for Combined Sewer 54541–54542 Overflows in the Great Lakes Basin, 54574–54575 High School and Beyond 2021 Base-Year Full-Scale Intent To Suspend Certain Pesticide Registrations, 54563– Study Data Collection, 54542–54543 54572 Protection and Advocacy of Individual Rights Program Pesticide Registration Review: Assurances, 54538 Draft Human Health and/or Ecological Risk Assessments Study of Financial Aid Supports for GEAR UP Students, for Several Pesticides, 54562–54563 54543–54544 Draft Human Health and/or Ecological Risk Assessments Applications for New Awards: for Strychnine, 54560–54562 Education Research and Special Education Research Proposed Interim Decisions for Several Pesticides, 54572– Grant Programs; Reopening, 54540 54574
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Export-Import Bank Food and Drug Administration NOTICES NOTICES Meetings; Sunshine Act, 54575 Drug Products Not Withdrawn From Sale for Reasons of Safety or Effectiveness: Farm Credit Administration MICRO–K LS (Potassium Chloride) Extended-Release NOTICES Liquid Suspension, 20 Milliequivalents/Packet, Meetings; Sunshine Act, 54575 54579 Establishment of a Public Docket: Federal Aviation Administration Post-Marketing Pediatric-Focused Product Safety RULES Reviews, 54580–54581 Airworthiness Directives: Withdrawal of Approval of 16 New Drug Applications: Pratt and Whitney Canada Corp. Turboshaft Engines, Janssen Pharmaceuticals, Inc., et al.; Correction, 54581 54481–54483 PROPOSED RULES Forest Service Airworthiness Directives: NOTICES Pilatus Aircraft Ltd. Airplanes, 54515–54517 Meetings: Collaborative Forest Restoration Program Technical Federal Communications Commission Advisory Panel, 54532–54533 PROPOSED RULES Updating the Commission’s Ex Parte Rules, 54523–54528 Health and Human Services Department NOTICES See Centers for Medicare & Medicaid Services Agency Information Collection Activities; Proposals, See Food and Drug Administration Submissions, and Approvals, 54576–54577 See National Institutes of Health NOTICES Federal Energy Regulatory Commission Statement of Organization, Functions, and Delegations of RULES Authority, 54581–54586 Qualifying Facility Rates and Requirements Implementation Issues Under the Public Utility Regulatory Policies Act Homeland Security Department of 1978, 54638–54740 See Coast Guard NOTICES See U.S. Customs and Border Protection Anticipated Schedule for Lake Elsinore Advanced Pumped Storage Project Nevada Hydro, Inc., 54554 Housing and Urban Development Department Application: NOTICES Green Mountain Power Corp., 54555–54556 Agency Information Collection Activities; Proposals, North Hartland, LLC, 54558–54559 Submissions, and Approvals: Combined Filings, 54560 Compliance Inspection Report and Mortgagee’s Assurance Filing: of Completion, 54589–54590 Southeastern Power Administration, 54553 Single Family Application for Insurance Benefits, 54588– Western Area Power Administration, 54559–54560 54589 Request for Extension of Time: Mountain Valley Pipeline, LLC, 54553–54554 Interior Department Request Under Blanket Authorization: See Land Management Bureau Equitrans, LP, 54555 See National Park Service Gulf South Pipeline Co., LLC, 54556–54557 Schedule for Environmental Review: Internal Revenue Service Northern Natural Gas Co.; South Sioux City to Sioux NOTICES Falls A–Line Replacement Project, 54557–54558 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Motor Carrier Safety Administration Application To Participate in the IRS Acceptance NOTICES Program, 54634 Qualification of Drivers; Exemption Applications: Procedures for Requesting Competent Authority Hearing, 54625–54628 Assistance Under Tax Treaties, 54634–54635 Vision, 54621–54624, 54628–54631 International Trade Administration Federal Railroad Administration NOTICES NOTICES Antidumping or Countervailing Duty Investigations, Orders, Agency Information Collection Activities; Proposals, or Reviews: Submissions, and Approvals, 54633–54634 Citric Acid and Certain Citrate Salts From the People’s Petition for Waiver of Compliance, 54631–54633 Republic of China, 54536–54537 Crystalline Silicon Photovoltaic Products From the Federal Reserve System People’s Republic of China, 54534–54535 NOTICES Phosphate Fertilizers From the Kingdom of Morocco and Agency Information Collection Activities; Proposals, the Russian Federation, 54535–54536 Submissions, and Approvals, 54577–54578 Seamless Carbon and Alloy Steel Standard, Line, and Formations of, Acquisitions by, and Mergers of Bank Pressure Pipe From the Republic of Korea and the Holding Companies, 54578–54579 Russian Federation, 54533
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International Trade Commission Meetings: NOTICES Advisory Committee on Reactor Safeguards, 54597–54598 Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Presidential Documents Wood Mouldings and Millwork Products From Brazil and PROCLAMATIONS China, 54593–54595 Trade: Investigations; Determinations, Modifications, and Rulings, Steel, Imports Into U.S.; Adjustment (Proc. 10064), etc.: 54875–54882 Certain Child Resistant Closures With Slider Devices ADMINISTRATIVE ORDERS Having a User Actuated Insertable Torpedo for COVID–19 Response and Economic Recovery Facilitation in Selectively Opening the Closures and Slider Devices Louisiana; Extension of Use of National Guard Therefor, 54591–54593 (Memorandum of August 29, 2020), 54883–54884
Labor Department Securities and Exchange Commission NOTICES RULES Agency Information Collection Activities; Proposals, Temporary Amendments to Regulation Crowdfunding; Submissions, and Approvals: Extension, 54483–54490 Industry-Recognized Apprenticeship Program and NOTICES Performance Reports for Standards Recognition Application: Entities, 54595 Deregistration Under the Investment Company Act, 54607–54608 Land Management Bureau Morgan Stanley Direct Lending Fund, et al., 54600–54607 NOTICES Spinnaker ETF Series, et al., 54598–54599 Plats of Survey: Self-Regulatory Organizations; Proposed Rule Changes: Wyoming, 54590 NYSE American, LLC, 54611–54613 NYSE Arca, Inc., 54608–54610 National Institutes of Health NOTICES Small Business Administration Meetings: NOTICES Center for Scientific Review, 54586–54587 Surrender of License: National Institute of Neurological Disorders and Stroke, Claritas Capital Specialty Debt Fund, LP, 54613 54586 State Department National Nuclear Security Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Environmental Impact Statements; Availability, etc.: Submissions, and Approvals: Record of Decision for the Complex Transformation Request to Change End-User, End-Use and/or Destination Supplemental Programmatic, 54550–54553 of Hardware, 54613–54614
National Oceanic and Atmospheric Administration Surface Transportation Board RULES NOTICES Fisheries of the Caribbean, Gulf of Mexico, and South Agency Information Collection Activities; Proposals, Atlantic: Submissions, and Approvals: Re-Opening of Recreational Sector for Gulf of Mexico Joint Notice of Intent To Arbitrate and Notice of Gray Triggerfish, 54513–54514 Availability for Arbitrator Roster, 54615–54616 Fisheries of the Northeastern United States: Rail Service Data, 54614–54615 Atlantic Mackerel, Squid, and Butterfish Fishery; 2020 Illex Squid Quota Harvested, 54514 Trade Representative, Office of United States PROPOSED RULES NOTICES Fisheries Off West Coast States: Product Exclusions: Pacific Coast Groundfish Fishery Management Plan; China’s Acts, Policies, and Practices Related to Amendment 29; 2021–2022 Biennial Specifications Technology Transfer, Intellectual Property, and and Management Measures, 54529–54531 Innovation, 54616–54621
National Park Service Transportation Department NOTICES See Federal Aviation Administration National Register of Historic Places: See Federal Motor Carrier Safety Administration Pending Nominations and Related Actions, 54590–54591 See Federal Railroad Administration
Navy Department Treasury Department NOTICES See Alcohol and Tobacco Tax and Trade Bureau Meetings: See Internal Revenue Service U.S. Naval Academy Board of Visitors, 54537–54538 U.S. Customs and Border Protection Nuclear Regulatory Commission NOTICES NOTICES Request for Applications: Export License Amendment Application: Appointment to the Commercial Customs Operations EnergySolutions Services, Inc., 54595–54597 Advisory Committee, 54588
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Part V Presidential Documents, 54875–54884 Separate Parts In This Issue
Part II Energy Department, Federal Energy Regulatory Reader Aids Commission, 54638–54740 Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice Part III of recently enacted public laws. Education Department, 54742–54818 To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/ Part IV accounts/USGPOOFR/subscriber/new, enter your e-mail Health and Human Services Department, Centers for address, then follow the instructions to join, leave, or Medicare & Medicaid Services, 54820–54874 manage your subscription.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.
3 CFR Proclamations: 9705 (See Proc. 10064) ...... 54877 9759 (See Proc. 10064) ...... 54877 10064...... 54877 Administrative Orders: Memorandums: Memorandum of August 29, 2020...... 54883 14 CFR 39...... 54481 Proposed Rules: 39...... 54515 17 CFR 227...... 54483 239...... 54483 18 CFR 292...... 54638 375...... 54638 27 CFR 9...... 54491 33 CFR 100...... 54494 117...... 54496 165 (3 documents) ...... 54497, 54499, 54501 34 CFR 600...... 54742 602...... 54742 668...... 54742 40 CFR 52 (4 documents) ...... 54504, 54507, 54509, 54510 Proposed Rules: 81...... 54517 42 CFR 410...... 54820 413...... 54820 414...... 54820 422...... 54820 423...... 54820 482...... 54820 483...... 54820 485...... 54820 488...... 54820 493...... 54820 47 CFR Proposed Rules: 1...... 54523 50 CFR 622...... 54513 648...... 54514 Proposed Rules: 660...... 54529
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Rules and Regulations Federal Register Vol. 85, No. 171
Wednesday, September 2, 2020
This section of the FEDERAL REGISTER information on the availability of this There has been one reported incident on a contains regulatory documents having general material at the FAA, call 781–238–7759. PT6B–37A engine, where the contamination applicability and legal effect, most of which It is also available on the internet at from galvanic corrosion between the FCU are keyed to and codified in the Code of https://www.regulations.gov by aluminum body and the steel union fitting Federal Regulations, which is published under searching for and locating Docket No. has caused the loss of engine control, 50 titles pursuant to 44 U.S.C. 1510. resulting in an engine over-speed condition FAA–2020–0471. and subsequently leading to an engine The Code of Federal Regulations is sold by Examining the AD Docket inflight shutdown (IFSD). This condition, if the Superintendent of Documents. not corrected, could lead to additional cases You may examine the AD docket on of IFSDs, which on a single engine helicopter the internet at https:// may result in an emergency autorotation DEPARTMENT OF TRANSPORTATION www.regulations.gov by searching for landing. To address the subject galvanic and locating Docket No. FAA–2020– corrosion problem in the FCU, P&WC has Federal Aviation Administration 0471; or in person at Docket Operations issued Service Bulletin (SB) 39107 to replace the affected FCUs with a modified FCU that between 9 a.m. and 5 p.m., Monday 14 CFR Part 39 is not susceptible to the subject galvanic through Friday, except Federal holidays. corrosion problem. This [Transport Canada] [Docket No. FAA–2020–0471; Project The AD docket contains this final rule, AD mandates compliance with P&WC SB Identifier MCAI–2019–00126–E; Amendment the mandatory continuing airworthiness 39107, requiring the replacement of the 39–21226; AD 2020–18–05] information (MCAI), any comments affected FCUs to mitigate the potential unsafe RIN 2120–AA64 received, and other information. The condition. address for Docket Operations is U.S. Airworthiness Directives; Pratt & Department of Transportation, Docket You may obtain further information Whitney Canada Corp. Turboshaft Operations, M–30, West Building by examining the MCAI in the AD Engines Ground Floor, Room W12–140, 1200 docket on the internet at https:// New Jersey Avenue SE, Washington, DC www.regulations.gov by searching for AGENCY: Federal Aviation 20590. and locating Docket No. FAA–2020– Administration (FAA), DOT. 0471. FOR FURTHER INFORMATION CONTACT: ACTION: Final rule. Mehdi Lamnyi, Aerospace Engineer, Comments ECO Branch, FAA, 1200 District SUMMARY: The FAA is adopting a new The FAA gave the public the Avenue, Burlington, MA 01803; phone: airworthiness directive (AD) for all Pratt opportunity to participate in developing 781–238–7743; fax: 781–238–7199; & Whitney Canada Corp. (P&WC) PT6B– this final rule. The FAA has considered email: [email protected]. 37A model turboshaft engines with the comment received. An individual engine serial number PCE–PU0289 and SUPPLEMENTARY INFORMATION: commenter supported the NPRM. earlier. This AD was prompted by a report of contamination from galvanic Discussion Conclusion corrosion between the fuel control unit The FAA issued a notice of proposed The FAA reviewed the relevant data, (FCU) aluminum body and the steel rulemaking (NPRM) to amend 14 CFR considered the comments received, and union fitting causing the loss of engine part 39 by adding an AD that would determined that air safety and the control, resulting in an engine over- apply to all P&WC PT6B–37A model public interest require adopting this speed condition and subsequent in- turboshaft engines with engine serial final rule as proposed except for minor flight shutdown (IFSD). This AD number PCE–PU0289 and earlier. The editorial changes. The FAA has requires replacing the FCU with a part NPRM published in the Federal determined that these minor changes: eligible for installation. The FAA is Register on May 14, 2020 (85 FR 28888). • issuing this AD to address the unsafe The NPRM was prompted by a report of Are consistent with the intent that condition on these products. contamination from galvanic corrosion was proposed in the NPRM for DATES: This AD is effective October 7, between the FCU aluminum body and addressing the unsafe condition; and 2020. the steel union fitting causing the loss • Do not add any additional burden The Director of the Federal Register of engine control, resulting in an engine upon the public than was already approved the incorporation by reference over-speed condition and subsequent proposed in the NPRM. of a certain publication listed in this AD IFSD. The NPRM proposed to require Service Information Incorporated by as of October 7, 2020. replacing the FCU with a part eligible Reference Under 1 CFR Part 51 ADDRESSES: For service information for installation. The FAA is issuing this identified in this final rule, contact Pratt AD to address the unsafe condition on The FAA reviewed P&WC Service & Whitney Canada Corp., 1000 Marie- these products. Bulletin (SB) No. PT6B–72–39107, Victorin, Longueuil, Quebec, Canada, Transport Canada Civil Aviation Revision No. 1, dated December 13, J4G 1A1; phone: 800–268–8000; fax: (Transport Canada), which is the 2017. The SB describes procedures for 450–647–2888; website: https:// aviation authority for Canada, has replacing the FCU. This service www.pwc.ca/en/. You may view this issued Transport Canada AD CF–2019– information is reasonably available service information at the FAA, 05, dated February 19, 2019 (referred to because the interested parties have Airworthiness Products Section, after this as ‘‘the MCAI’’), to address the access to it through their normal course Operational Safety Branch, 1200 District unsafe condition on these products. The of business or by the means identified Avenue, Burlington, MA 01803. For MCAI states: in the ADDRESSES section.
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Costs of Compliance The FAA estimates the following The FAA estimates that this AD costs to comply with this AD: affects 75 engines installed on helicopters of U.S. registry.
ESTIMATED COSTS
Cost per Cost on U.S. Action Labor cost Parts cost product operators
Replace the FCU ...... 1 work-hour × $85 per $37,000 ...... $37,085 ...... $2,781,375 hour = $85.
Authority for This Rulemaking (2) Would not affect intrastate (c) Applicability Title 49 of the United States Code aviation in Alaska, and This AD applies to Pratt & Whitney Canada specifies the FAA’s authority to issue (3) Would not have a significant Corp. (P&WC) PT6B–37A model turboshaft engines with engine serial number PCE– rules on aviation safety. Subtitle I, economic impact, positive or negative, on a substantial number of small entities PU0289 and earlier, which do not have an section 106, describes the authority of installed fuel control unit (FCU) that the FAA Administrator. Subtitle VII: under the criteria of the Regulatory Flexibility Act. incorporates a stainless steel air adapter Aviation Programs, describes in more using P&WC Service Bulletin (SB) No. PT6B– detail the scope of the Agency’s List of Subjects in 14 CFR Part 39 72–39107, Revision No. 1, dated December authority. 13, 2017. Air transportation, Aircraft, Aviation The FAA is issuing this rulemaking safety, Incorporation by reference, (d) Subject under the authority described in Safety. Joint Aircraft System Component (JASC) Subtitle VII, Part A, Subpart III, Section Code 7321, Fuel Control/Turbine Engines. 44701: ‘‘General requirements.’’ Under The Amendment (e) Unsafe Condition that section, Congress charges the FAA Accordingly, under the authority with promoting safe flight of civil delegated to me by the Administrator, This AD was prompted by a report of aircraft in air commerce by prescribing contamination from galvanic corrosion the FAA amends 14 CFR part 39 as between the FCU aluminum body and the regulations for practices, methods, and follows: procedures the Administrator finds steel union fitting causing the loss of engine necessary for safety in air commerce. control, resulting in an engine over-speed PART 39—AIRWORTHINESS condition and subsequent in-flight shutdown This regulation is within the scope of DIRECTIVES (IFSD). The FAA is issuing this AD to that authority because it addresses an prevent failure of the FCU due to unsafe condition that is likely to exist or ■ 1. The authority citation for part 39 contamination from galvanic corrosion. The develop on products identified in this continues to read as follows: unsafe condition, if not addressed, could rulemaking action. Authority: 49 U.S.C. 106(g), 40113, 44701. result in loss of engine control, failure of the engine, IFSD, and loss of the helicopter. Regulatory Findings § 39.13 [Amended] (f) Compliance This AD will not have federalism ■ 2. The FAA amends § 39.13 by adding implications under Executive Order Comply with this AD within the the following new airworthiness compliance times specified, unless already 13132. This AD will not have a directive (AD): done. substantial direct effect on the States, on 2020–18–05 Pratt & Whitney Canada Corp: (g) Required Actions the relationship between the national Amendment 39–21226; Docket No. Government and the States, or on the FAA–2020–0471; Project Identifier Within the compliance time identified in distribution of power and MCAI–2019–00126–E. Table 1 to paragraph (g) of this AD, replace responsibilities among the various the FCU with an FCU that incorporates the levels of government. (a) Effective Date stainless steel air adapter using the For the reasons discussed above, I This AD is effective October 7, 2020. Accomplishment Instruments, paragraphs 3.A. and 3.C., of P&WC SB No. PT6B–72– certify this AD: (b) Affected ADs 39107, Revision No. 1, dated December 13, (1) Is not a ‘‘significant regulatory None. 2017. action’’ under Executive Order 12866,
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(h) Credit for Previous Actions 800–268–8000; fax: 450–647–2888; website: from certain requirements of Regulation You may take credit for the replacement of https://www.pwc.ca/en/. Crowdfunding relating to the timing of the FCU that is required by paragraph (g) of (4) You may view this service information the offering and the availability of this AD if you replaced the FCU with an FCU at FAA, Airworthiness Products Section, financial statements required to be that incorporates a stainless steel air adapter Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For included in issuers’ offering materials before the effective date of this AD using information on the availability of this while retaining appropriate investor P&WC SB No. PT6B–72–39107, Original material at the FAA, call 781–238–7759. protections. Issue, dated December 15, 2016. (5) You may view this service information DATES: Effective date: The amendments (i) Alternative Methods of Compliance that is incorporated by reference at the in this rule are effective from August 31, (AMOCs) National Archives and Records Administration (NARA). For information on 2020, through September 1, 2021. The (1) The Manager, ECO Branch, FAA, has the availability of this material at NARA, expiration date for the temporary final the authority to approve AMOCs for this AD, email: [email protected], or go to: http:// rules published May 7, 2020 (85 FR if requested using the procedures found in 14 www.archives.gov/federal-register/cfr/ibr- 27116) is extended from March 1, 2021, CFR 39.19. In accordance with 14 CFR 39.19, locations.html. send your request to your principal inspector to September 1, 2021. or local Flight Standards District Office, as Issued on August 20, 2020. Applicability date: The temporary appropriate. If sending information directly Lance T. Gant, final rules apply to securities offerings initiated under Regulation to the manager of the ECO Branch, send it to Director, Compliance & Airworthiness the attention of the person identified in Division, Aircraft Certification Service. Crowdfunding between May 4, 2020, paragraph (j)(1) of this AD. You may email and February 28, 2021. [FR Doc. 2020–19299 Filed 9–1–20; 8:45 am] your request to: [email protected]. FOR FURTHER INFORMATION CONTACT: BILLING CODE 4910–13–P (2) Before using any approved AMOC, Jennifer Zepralka, Office of Small notify your appropriate principal inspector, Business Policy, Division of Corporation or lacking a principal inspector, the manager Finance, at (202) 551–3460; U.S. of the local flight standards district office/ SECURITIES AND EXCHANGE Securities and Exchange Commission, certificate holding district office COMMISSION 100 F Street NE, Washington, DC (j) Related Information 17 CFR Parts 227 and 239 20549–3628. (1) For more information about this AD, SUPPLEMENTARY INFORMATION: We are contact Mehdi Lamnyi, Aerospace Engineer, [Release No. 33–10829] adopting amendments to 17 CFR ECO Branch, FAA, 1200 District Avenue, 227.100 (‘‘Rule 100’’), 17 CFR 227.201 Burlington, MA 01803; phone: 781–238– Temporary Amendments to Regulation (‘‘Rule 201’’), 17 CFR 227.301 (‘‘Rule 7743; fax: 781–238–7199; email: Crowdfunding; Extension [email protected]. 301’’), 17 CFR 227.303 (‘‘Rule 303’’) and (2) Refer to Transport Canada Civil AGENCY: Securities and Exchange 17 CFR 227.304 (‘‘Rule 304’’) of 17 CFR Aviation (Transport Canada) AD CF–2019– Commission. part 227 (‘‘Regulation Crowdfunding’’) 05, dated February 19, 2019, for more ACTION: Temporary final rule; extension. under 15 U.S.C. 77a et seq. (the information. You may examine the Transport ‘‘Securities Act’’) and to 17 CFR 239.900 Canada AD in the AD docket on the internet SUMMARY: The Securities and Exchange (‘‘Form C’’) as temporary final rules. at https://www.regulations.gov by searching Commission (‘‘Commission’’) is for and locating Docket No. FAA–2020–0471. extending the effective date and I. Background (k) Material Incorporated by Reference applicability dates of our temporary The outbreak of COVID–19 has had final rules under Regulation (1) The Director of the Federal Register far-reaching effects, with small approved the incorporation by reference Crowdfunding to facilitate capital businesses being particularly affected by (IBR) of the service information listed in this formation for small businesses impacted the closures and safety measures paragraph under 5 U.S.C. 552(a) and 1 CFR by coronavirus disease 2019 (COVID– designed to slow the spread of COVID– part 51. 19). The temporary final rules are 19.1 Recognizing that, as a result, many (2) You must use this service information intended to expedite the offering as applicable to do the actions required by process for smaller, previously 1 See, e.g., MetLife & U.S. Chamber of Commerce this AD, unless the AD specifies otherwise. established companies directly or Special Report on Coronavirus and Small Business (i) Pratt & Whitney Canada Corp. (P&WC) indirectly affected by COVID–19 that are (April 3, 2020), available at https:// Service Bulletin No. PT6B–72–39107, www.uschamber.com/sites/default/files/metlife_ seeking to meet their funding needs uscc_coronavirus_and_small_business_report_ Revision No. 1, dated December 13, 2017. _ (ii) [Reserved] through the offer and sale of securities april 3.pdf (‘‘With high levels of concern about pursuant to Regulation Crowdfunding. COVID–19 reported in every sector and region of (3) For P&WC service information the country, one in four small businesses (24 identified in this AD, contact Pratt & Whitney The temporary final rules are designed percent) report having already temporarily shut Canada Corp., 1000 Marie-Victorin, to facilitate this offering process by down. Among those who haven’t shut down yet, 40 Longueuil, Quebec, Canada, J4G 1A1; phone: providing tailored, conditional relief Continued
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small businesses were facing challenges a time frame that would meet its urgent issuers offering $250,000 or less of accessing urgently needed capital in a capital needs.3 The temporary final securities in reliance on Regulation timely and cost-effective manner, on rules provide flexibility for eligible Crowdfunding within a 12-month May 4, 2020, the Commission adopted issuers 4 to assess interest in a period.7 In addition, a condition to each temporary final rules intended to Regulation Crowdfunding offering prior aspect of the temporary relief is a address feedback received from its to preparation of full offering materials,5 requirement to provide clear disclosure Small Business Capital Formation and then once launched, to close such to investors with respect to the issuer’s 2 Advisory Committee and others. That an offering and have access to funds reliance on such relief.8 The following feedback noted that certain Regulation sooner than would be possible in the table summarizes the amendments. For 6 Crowdfunding requirements may have absence of the temporary relief. The a detailed description of the temporary been making it difficult for an issuer temporary rules also provide an final rules, see the Temporary affected by COVID–19 to launch an exemption from certain financial Amendments Adopting Release. offering and see it to completion within statement review requirements for
Requirement Existing regulation crowdfunding Temporary amendment
Eligibility ...... The exemption is not available to: To rely on the temporary rules, issuers must meet the • Non-U.S. issuers; existing eligibility criteria PLUS: • Issuers that are required to file reports under Section • The issuer cannot have been organized and cannot 13(a) or 15(d) of the Securities Exchange Act of have been operating for less than six months prior to 1934; the commencement of the offering; and • Investment companies; • An issuer that has sold securities in a Regulation • Blank check companies; Crowdfunding offering in the past, must have com- • Issuers that are disqualified under Regulation plied with the requirements in 15 U.S.C. 77d–1(b) Crowdfunding’s disqualification rules; and (‘‘Section 4A(b)’’) of the Securities Act and the re- lated rules. • Issuers that have failed to file the annual reports re- quired under Regulation Crowdfunding during the two years immediately preceding the filing of the offering statement. Offers permitted ...... After filing of offering statement (including financial After filing of offering statement, but financial state- statements) ments may be initially omitted (if not otherwise avail- able). Investment commitments ac- After filing of offering statement (including financial After filing of offering statement that includes financial cepted. statements) statements or amended offering statement that in- cludes financial statements. Financial statements re- Financial statements of the issuer reviewed by a public Financial statements of the issuer and certain informa- quired when issuer is of- accountant that is independent of the issuer tion from the issuer’s Federal income tax returns, fering more than $107,000 both certified by the principal executive officer. and not more than $250,000 in a 12-month period. Sales permitted ...... After the information in an offering statement is publicly As soon as an issuer has received binding investment available for at least 21 days commitments covering the target offering amount (note: Commitments are not binding until 48 hours after they are given) Early closing permitted ...... Once target amount is reached if: As soon as binding commitments are received reaching • The offering remains open for a minimum of 21 days; target amount if:
percent report it is likely they will shut temporarily acsec/sbcfac-transcript-040220.pdf, at 30–32 4 See temporary 17 CFR 227.100(b)(7) (‘‘Rule within the next two weeks. Forty-three percent (expressing the view that Regulation Crowdfunding 100(b)(7)’’). To rely on the temporary rules, an believe they have less than six months until a is ‘‘the only mechanism’’ for private businesses to issuer must meet the requirements of temporary permanent shutdown is unavoidable.’’). See also access ‘‘non-accredited investors, really the Rule 100(b)(7) in addition to the current eligibility MetLife & U.S. Chamber of Commerce Small community members’’ and suggesting relief from requirements of 17 CFR 227.100(b)(1) through (6). Business Coronavirus Impact Poll (July 29, 2020), the financial statement requirements of Regulation 5 See temporary 17 CFR 227.201(z)(2) (‘‘Rule available at https://www.uschamber.com/sites/ Crowdfunding) and 39–41 (suggesting financial default/files/metlife_uscc_sbi_coronavirus_impact_ 201(z)(2)’’). statement relief and relief from the requirement to poll_july.pdf (reporting that in July 2020, 86% of 6 See temporary 17 CFR 227.303(g) (‘‘Rule wait 21 days before disbursement of funds raised small businesses surveyed report they are either in a Regulation Crowdfunding offering). See also 303(g)’’) and temporary 17 CFR 227.304(e) (‘‘Rule fully (52%) or partially (34%) open, but ‘‘most 304(e)’’). small businesses are concerned about financial Transcript for Online Investment Capital Raising 7 See temporary 17 CFR 227.201(z)(3) (‘‘Rule hardship due to prolonged closures (70%) and more Virtual Coffee Break (April 3, 2020), available at than half worry about having to permanently close https://www.sec.gov/files/OS-018-20-403-full.pdf. 201(z)(3)’’). Note that Instruction 1 to paragraph (t) (58%).’’). 3 See Temporary Amendments to Regulation continues to apply in connection with the 2 See Transcript of SEC Small Business Capital Crowdfunding, Release No. 33–10781 (May 4, 2020) determination of the offering amount. Formation Advisory Committee (April 2, 2020), [85 FR 27116 (May 7, 2020)] (‘‘Temporary 8 See temporary 17 CFR 227.201(z)(1) (‘‘Rule available at https://www.sec.gov/info/smallbus/ Amendments Adopting Release’’). 201(z)(1)’’).
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Requirement Existing regulation crowdfunding Temporary amendment
• The intermediary provides notice about the new of- fering deadline at least five business days prior to the new offering deadline; • The issuer has complied with the disclosure require- ments in temporary Rule 201(z); • The intermediary provides notice that the target offer- ing amount has been met; and • At the time of the closing of the offering, the issuer continues to meet or exceed the target offering amount. • Investors are given the opportunity to reconsider their investment decision and to cancel their investment commitment until 48 hours prior to the new offering deadline; and • At the time of the new offering deadline, the issuer continues to meet or exceed the target offering amount. Cancellations of investment For any reason until 48 hours prior to the deadline For any reason for 48 hours from the time of the inves- commitments permitted. identified in the issuer’s offering materials. There- tor’s investment commitment (or such later period as after, an investor is not able to cancel any investment the issuer may designate). After such 48 hour period, commitments made within the final 48 hours of the an investment commitment may not be cancelled un- offering (except in the event of a material change to less there is a material change to the offering. the offering).
The temporary rules as adopted believe that a securities offering under the temporary amendments generally applied to offerings initiated under Regulation Crowdfunding may be an have been helpful not only to those Regulation Crowdfunding between May attractive fundraising option for some issuers that have initiated a Regulation 4, 2020, and August 31, 2020. However, small businesses at this time, Crowdfunding offering under the rules the Commission indicated in the particularly as a means of allowing an thus far, but also to those issuers that Temporary Amendments Adopting issuer to make use of the internet to continue to consider their financing Release that it intended to monitor the reach out to its customers or members options during the pandemic.11 situation and might, if necessary, extend of its local community as potential Members of the Small Business Capital the time period during which this relief investors as well as to existing investors. Formation Advisory Committee also applies, with any additional conditions Overall, as discussed below, the expressed positive views of the the Commission deems appropriate, temporary final rules have been well temporary amendments after they were and/or issue other relief. In light of the received by the market and have proven adopted.12 As of July 31, 2020, the latest continuing challenges facing small effective for some issuers to raise capital businesses, and for the reasons detailed under the current conditions. We 11 See, e.g., letters from NextSeed dated July 19, below, the Commission has determined believe it is important to maintain the 2020 (‘‘NextSeed letter’’), available at https:// that it is necessary and appropriate to flexibility provided by the temporary www.sec.gov/comments/s7-05-20/s70520-7449553- extend the applicability and final rules for small businesses that 220993.pdf; and Republic dated June 1, 2020 effectiveness dates of the temporary continue to face difficulties as a result (‘‘Republic-1 letter’’), available at https:// www.sec.gov/comments/s7-05-20/s70520-7258471- final rules. of COVID–19. 217640.pdf. Market participants in discussions with Based on feedback that the II. Amendment of Applicability and Commission staff also have noted that the flexibility Commission has received through provided by the temporary final rules may make a Expiration Dates of the Temporary comment letters on our proposing Regulation Crowdfunding offering a more realistic Final Rules choice for an issuer seeking financing in the current release, Facilitating Capital Formation market environment. One commenter stated that it As noted above, the temporary final and Expanding Investment had not yet listed an offering under the temporary rules currently apply to offerings Opportunities by Improving Access to final rules, but noted its ‘‘shared enthusiasm with initiated under Regulation Capital in Private Markets 10 and other dozens of small businesses in [its] network actively Crowdfunding between May 4, 2020, outreach conducted by Commission evaluating the possibility of availing the Temporary Relief to fundraise.’’ See letter from Republic dated and August 31, 2020. The Commission staff, the Commission understands that August 22, 2020 (‘‘Republic-2 letter’’), available at has continued to monitor the COVID–19 https://www.sec.gov/comments/s7-05-20/s70520- outbreak and its impact on small small businesses believe it will take six months to 7677531-222676.pdf. This commenter urged the businesses. At this time, COVID–19 still a year before the small business climate returns to Commission to expand the relief to allow small presents significant challenges for small normal . . .’’). Minority-owned businesses are businesses to ‘‘test the waters’’ prior to filing the considered to be particularly at risk of closing their offering statement ‘‘so that they can determine businesses and is likely to continue to businesses. See MetLife & U.S. Chamber of where it is worthwhile to undertake the effort of do so for some time.9 We continue to Commerce, Special Report on Race and Inequality preparing an offering statement.’’ But see letter from on Main Street (Aug. 4, 2020), available at https:// Better Markets dated June 1, 2020 (‘‘Better Markets _ 9 See infra note 25. See also McKinsey & Co., www.uschamber.com/sites/default/files/sbi letter’’), available at https://www.sec.gov/ _ _ _ _ Tracking US small and medium-sized business inequality on main street 8.4.pdf (finding that two comments/s7-05-20/s70520-7261530-217652.pdf sentiment during COVID–19 (May 29, 2020), in three (66%) minority-owned small businesses are (stating its view that the temporary amendments available at https://www.mckinsey.com/industries/ concerned about having to permanently close their would expose investors to greater risks and less financial-services/our-insights/tracking-us-small- business versus 57% for non-minority small information). and-medium-sized-business-sentiment-during- businesses). 12 See, e.g., Transcript of SEC Small Business covid-19; MetLife & U.S. Chamber of Commerce 10 Facilitating Capital Formation and Expanding Capital Formation Advisory Committee (May 8, Small Business Coronavirus Impact Poll, supra note Investment Opportunities by Improving Access to 2020), available at https://www.sec.gov/info/ 1 (‘‘Over the long term, small businesses show signs Capital in Private Markets, Release Nos. 33–10763; smallbus/acsec/sbcfac-transcript-050820.pdf, at 17– of guarded optimism, but feel it will be some time 34–88321 (Mar. 4, 2020) [85 FR 17956 (Mar. 31, 19 (noting positive feedback from small businesses before things return to normal. More than half of 2020)] (‘‘Access to Capital Proposing Release’’). intending to take advantage of the relief).
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available full month of data, we find The temporary rules were originally avoid a loss of targeted relief from that, of the 248 new offerings on Form adopted in response to the certain requirements of Regulation C by eligible issuers (out of 292 total unprecedented adverse impact of the Crowdfunding and enable eligible offerings), 94, or 38% (32%), relied on COVID–19 crisis on small businesses. issuers affected by the COVID–19 crisis one or more of the provisions of the Since the adoption of the temporary to continue to avail themselves of a temporary relief.13 The commenters rules, small businesses have continued more flexible and efficient offering who found the temporary amendments to experience significant disruption, process. Extending the temporary relief helpful also have urged the Commission across a wide range of individual also will prevent competitive to extend the relief to offerings initiated industries as well as the broader disadvantages for issuers that initiate after August 31, 2020.14 economy.16 In light of ongoing adverse their offerings after the expiration of the In light of the continuing challenges financing conditions for small existing temporary relief. facing small businesses and the businesses as a result of the COVID–19 Except as specified below, we feedback received on the temporary crisis, we believe that the relief remains incorporate the earlier economic final rules, the Commission has necessary and appropriate. Preliminary analysis by reference.19 However, the determined that it is necessary and evidence from the period of the adoption of the temporary relief on May appropriate to extend the applicability temporary rules’ effectiveness indicates 4, 2020 has also resulted in some and effectiveness dates of the temporary that a significant proportion of eligible economic effects that are discussed in final rules. The temporary final rules, as issuers conducting offerings in reliance Section III.A below. These effects are extended, will apply to offerings on Regulation Crowdfunding have now part of the current baseline from initiated under Regulation relied on one or more provisions of the which we evaluate the economic effects Crowdfunding through February 28, relief in their capital raising.17 of the extension of these temporary 2021 and will be effective until We have considered the costs and rules. September 1, 2021. This extension will benefits of the temporary rules.18 After A. Baseline continue to provide issuers with the examining recent evidence on the state opportunity to access capital on an of the crowdfunding market and the The baseline for this extension expedited basis while maintaining ongoing effects of the COVID–19 crisis includes existing Regulation appropriate investor protections. summarized in Section III.A., we believe Crowdfunding regulations and industry that the general economic practices 20 and the existing temporary III. Economic Analysis considerations related to the benefits, relief adopted on May 4, 2020. As discussed above, in light of the costs, and effects on efficiency, Given the exemption’s offering limit, continued, considerable financing competition, and capital formation of since Regulation Crowdfunding became constraints and challenges facing small the individual provisions discussed in effective in 2016, it has been utilized businesses as a result of the COVID–19 the May 4, 2020 Temporary primarily by small businesses (which crisis, the Commission is extending Amendments Adopting Release typically lack significant internal cash temporary relief from certain continue to apply. In particular, we flows or access to other securities requirements of Regulation continue to believe that issuers eligible market financing options). Table 1 Crowdfunding to issuers seeking under the temporary rules continue to below presents data on the funding on an expedited basis due to face adverse economic conditions and characteristics of issuers in Regulation circumstances relating to COVID–19. significant difficulties with raising Crowdfunding offerings as of July 31, Several commenters have expressed external financing as a result of COVID– 2020 (the most recent available full support for the temporary rules.15 19. Extending the temporary relief will month of data).
TABLE 1—CHARACTERISTICS OF ISSUERS IN REGULATION CROWDFUNDING OFFERINGS: MAY 16, 2016—JULY 31, 2020 21
Average Median
Age in years ...... 3.0 1.9 Number of employees ...... 5.3 3.0 Total assets ...... $430,400 $37,194 Total revenues ...... $347,124 $226
The median crowdfunding offering employed about three people. The revenues (approximately 49% of was by an issuer that was incorporated median issuer had total assets of offerings were by issuers with no approximately two years earlier and that approximately $37,000 and close to zero revenues). Approximately 11% of
13 For this estimate, eligibility was estimated Commission to consider incorporating the addition to the protection of investors, whether the based on the issuer having been formed at least six temporary relief into Access to Capital Proposing action will promote efficiency, competition, and months prior to the filing date of the offering and Release or extending the relief for at least 12 capital formation. having had (1) either positive assets, revenues, net months). 19 See Temporary Amendments Adopting income, debt, accounts receivable, cost of goods 15 See supra note 11 and accompanying text. See Release, at 27121–31. sold, taxes paid, or employees in the most recent also https://www.sec.gov/info/smallbus/acsec/ 20 For a more detailed discussion of the fiscal year reported on Form C, or (2) a prior sbcfac-transcript-050820.pdf. But see Better Markets crowdfunding market, see Access to Capital Regulation Crowdfunding offering. See also infra letter (opposing the temporary rules). Proposing Release; Report to the Commission: notes 31 and 36. 16 See infra note 25. Regulation Crowdfunding (Jun. 18, 2019), available 14 See, e.g., NextSeed letter; Republic-1 letter 17 See infra note 36. at https://www.sec.gov/files/regulation- (noting the relief relating to financial statement 18 Section 2(b) of the Securities Act [15 U.S.C. crowdfunding-2019_0.pdf (‘‘2019 Regulation requirements and encouraging the Commission to 77b(b)] requires the Commission, when engaging in Crowdfunding Report’’). extend the relief, ‘‘as the economic harm caused by rulemaking where it is required to consider or 21 The estimates are based on data from Form C the COVID–19 Pandemic is likely to be far determine whether an action is necessary or or the latest amendment to it and exclude reaching’’); Republic-2 letter (encouraging the appropriate in the public interest, to consider, in withdrawn offerings.
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offerings were by issuers that had Table 2 summarizes EDGAR filings Regulation Crowdfunding since its attained profitability in the most recent data on amounts sought and capital inception (May 16, 2016) through July fiscal year prior to the offering. reported raised in offerings under 31, 2020.
Aggregate Number Average Median (million)
Target amount sought in initiated offerings ...... 2,525 $60,089 $25,000 $150.9 Maximum amount sought in initiated offerings ...... 2,525 607,503 535,000 1,494.2 Amounts reported as raised in completed offerings 22 ...... 1,005 230,219 107,000 231.4
The baseline also includes the recent crisis has resulted in a substantial consumer confidence, commuting and and ongoing effects of the disruption to deterioration in financing and business travel patterns, declines in purchasing the U.S. and global economy related to conditions for small businesses.25 Small power, and explicit restrictions on the COVID–19, interventions aimed at businesses eligible under the existing operation of certain businesses); mitigating its effects, and adverse rules have been facing and are expected disruptions to workforce and supply changes in macroeconomic and to continue to face significant adverse chains; and declines in investor financial market conditions (collectively effects of the crisis, including, but not sentiment that affect the availability of referred to as ‘‘the COVID–19 crisis’’). limited to, declines in consumer financing, valuations, and potential for Small businesses often face significant demand and revenues, particularly in exits.27 Some small issuers eligible financing constraints.23 Financing consumer-facing industries, such as under the temporary rules may also constraints make small firms more restaurants, recreation/lifestyle, and qualify for emergency relief under other vulnerable to economic downturns and retail 26 (e.g., as a result of changes in economic assistance programs, which other negative shocks.24 The COVID–19 may mitigate some of the adverse Recession: New Evidence from the Survey of impacts described above and the 22 Issuers that have not raised the target amount Consumer Finances, In: J. Haltiwanger, E. Hurst, J. financing constraints stemming from the or not filed a report on Form C–U are not included Miranda, and A. Schoar (Eds.), Measuring 28 Entrepreneurial Businesses: Current Knowledge and crisis. However, a recent report in the estimate of proceeds. See also 2019 indicates that ‘‘[b]ased on the number of Regulation Crowdfunding Report, at 15, footnote 40. Challenges, University of Chicago Press, 291–349; Burcu Duygan-Bump, Alexey Levkov, and Judit 23 Small businesses often lack access to securities firms that reference COVID–19, many Montoriol-Garriga (2015) Financing Constraints and markets and rely on personal savings, business companies are coming online to search Unemployment: Evidence from the Great Recession, profits, personal and business credit, and friends Journal of Monetary Economics 75, 89–105. Various for capital where they can’t get it from and family as sources of capital. See U.S. studies of traded small-cap companies show that banks or government programs like the Department of Treasury (2017) A Financial System small firms, which tend to be most financially 29 That Creates Economic Opportunities: Banks and Payroll Protection Program (PPP).’’ constrained, are disproportionately affected by We expect the temporary rules to Credit Unions, available at https:// downturns or tightening credit conditions. See, e.g., www.treasury.gov/press-center/press-releases/ Gabriel Perez-Quiros and Allan Timmermann affect issuers, intermediaries, and Documents/A%20Financial%20System.pdf. (2000) Firm Size and Cyclical Variations in Stock investors in Regulation Crowdfunding According to one study relying on the data from the Returns, Journal of Finance 55(3), 1229–1262 offerings. As of July 31, 2020, we 2014 Annual Survey of Entrepreneurs, (showing that ‘‘small firms display the highest estimate that 2,276 issuers had initiated approximately 64% of small businesses relied on degree of asymmetry in their risk across recession personal or family savings, compared to 0.6% and expansion states, which translates into a higher 2,525 Regulation Crowdfunding receiving VC capital. About one-third of businesses sensitivity of their expected stock returns with offerings, excluding withdrawn used banks and other financial institutions as a respect to variables that measure credit market offerings.30 As discussed below, source of capital for financing business operations conditions’’); Murillo Campello and Long Chen eligibility criteria of the temporary rules in 2014. A significant share of businesses that (2010) Are Financial Constraints Priced? Evidence established new funding relationships continued to from Firm Fundamentals and Stock Returns, exclude (1) issuers that were organized have unmet credit needs. See Alicia Robb (2018) Journal of Money, Credit, and Banking 42(6), 1185– or had operations for less than six Financing Patterns and Credit Market Experiences: 1198 (finding that financially constrained firms’ months prior to the commencement of A Comparison by Race and Ethnicity for U.S. business fundamentals are significantly more the offering and (2) issuers that were not Employer Firms, Working Paper. See also Alicia M. sensitive to macroeconomic movements than Robb and David Robinson (2014) The Capital unconstrained firms’ fundamentals). See also compliant with Regulation Structure Decisions of New Firms, Review of Eugene Fama and Kenneth French (1993) Common Crowdfunding requirements with regard Financial Studies 27(1), 153–179 (showing that, Risk Factors in the Returns on Stocks and Bonds, while entrepreneurial firms frequently rely on Journal of Financial Economics 3, 3–56. crowdwise.org/funding-portals/2019-equity- outside loans, outside equity use is uncommon); 25 See supra notes 1, 2, and 9. See also, e.g., crowdfunding-stats-data/. Rebel Cole and Tatyana Sokolyk (2013) How Do several recent working papers examining impacts of 27 See supra notes 1–2. Start-Up Firms Finance Their Assets? Evidence the COVID–19 crisis on small businesses: 28 from the Kauffman Firm Surveys, Working Paper Alexander W. Bartik, Marianne Bertrand, Zoe¨ B. See COVID–19 Resources for Small Businesses, (showing, based on the 2004 Kauffman Firm Cullen, Edward L. Glaeser, Michael Luca, and https://www.sec.gov/page/covid-19-resources-small- Survey, that at start-up stage 76% of firms relied on Christopher T. Stanton (2020) How Are Small businesses. credit, including 24% that used trade credit, 44% Businesses Adjusting to COVID–19? Early Evidence 29 See Crowdfund Capital Advisors, https:// that used business credit, and 55% that used from a Survey, NBER Working Paper No. 26989; mailchi.mp/3f278c568278/crowdfunding-update- personal credit (percentages do not add up to 100% Jose Maria Barrero, Nicholas Bloom, and Steven J. 2019-state-of-regulation-crowdfunding-2638840. because firms may use multiple types of credit)). As Davis (2020) COVID–19 Is Also a Reallocation 30 These figures reflect data from the a general caveat, working papers have not Shock, NBER Working Paper No. 27137; John Eric approximately 4.2 years since inception of undergone peer review and may be subject to Humphries, Christopher Neilson, and Gabriel Regulation Crowdfunding, with offering activity revision at a future date. Ulyssea (2020) The Evolving Impacts of COVID–19 accelerating in the second half of the sample period. 24 Studies of the 2008–2009 financial crisis have on Small Businesses Since the CARES Act, Cowles It is difficult to predict how many of the past issuers documented disproportionate impacts of the crisis Foundation Discussion Paper No. 2230; Robert W. will conduct a follow-on offering in reliance on the on the outcomes and employment of financially Fairlie (2020) The Impact of COVID–19 on Small relief as well as how existing market conditions, constrained small businesses. See, e.g., Michael Business Owners: The First Three Months after which affect both supply and demand of capital, Siemer (2019) Employment Effects of Financial Social-Distancing Restrictions, NBER Working will affect the flow of new crowdfunding offerings Constraints during the Great Recession, Review of Paper No. 27462. relative to historical data. Thus it is difficult to Economics and Statistics 101(1), 16–29; Arthur 26 See, e.g., Devin Thorpe, Startup Restauranteurs extrapolate from these numbers the flow of new Kennickell, Myron Kwast, and Jonathan Pogach Find Willing Investors via Crowdfunding, Forbes crowdfunding offerings projected during the time (2017) Small Businesses and Small Business (Sept. 28, 2019) and 2019 US Equity Crowdfunding frame during which temporary relief will be Finance during the Financial Crisis and the Great Stats—Year in Review, available at https:// extended.
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to any prior offerings in which they sold inception through July 31, 2020, we July 31, 2020, we find that, of the 248 securities. estimate that there were 209 repeat new offerings on Form C by eligible Historical data provides an indication Regulation Crowdfunding issuers, issuers (out of 292 total offerings), 94, or of the potential share of offerings including 160 such issuers that had 38% (32%) relied on one or more of the eligible for temporary relief among all reported successful completion of at provisions of the temporary relief.36 offerings. From inception of Regulation least one Regulation Crowdfunding The temporary relief, which took Crowdfunding through July 31, 2020, offering on Form C–U.32 we estimate that 2,074 (approximately We estimate that there are 57 effect on May 4, 2020, was accompanied 82%) offerings were initiated by 1,867 registered funding portals, excluding by an increase in Regulation issuers that were eligible or would have funding portals that have withdrawn Crowdfunding offering activity through been eligible for the temporary relief.31 their registration.33 Information on the the end of the period of analysis (July With respect to the eligibility number of investors per offering is not 31, 2020), as illustrated in Table 3 requirements related to follow-on available for the full sample of below. The increase was observed in offerings under Regulation Regulation Crowdfunding offerings, as it comparison to both the pre-rule period Crowdfunding, i.e., that the issuer is not required to be reported in of equivalent length (89 days from complied with Regulation progress updates on Form C–U.34 February 5, 2020 to May 3, 2020) and Crowdfunding with respect to any prior We are unable to predict precisely the the same period in the previous year offering in which they sold securities, it number of issuers likely to rely on the (May 4, 2019 to July 31, 2019). The is difficult to estimate the percentage of temporary rules while they are in increase was most pronounced for prior Regulation Crowdfunding issuers effect.35 A review of new filings made issuers that had been formed at least six that were not compliant with one or on Form C on or after May 4, 2020 months prior to the offering and thus more of the requirements of Regulation provides some information about issuer would have been eligible under the Crowdfunding in a prior offering. From reliance on the temporary rules. As of temporary rules.
TABLE 3—NEW REGULATION CROWDFUNDING ACTIVITY, MAY 4, 2020–JULY 31, 2020 37
Aggregate target amount Aggregate maximum amount Period Number of new filings ($ million) ($ million)
All issuers: Post (May 4, 2020–July 31, 292 ...... 15.5 ...... 173.4 2020). Pre (Feb. 5, 2020–May 3, 199 ...... 10.0 ...... 110.9 2020). Change Post vs. Pre ...... 47% ...... 56% ...... 56% 2019 (May 4, 2019–July 31, 128 ...... 7.9 ...... 72.6 2019). Change Post vs. 2019 ...... 128% ...... 98% ...... 139% Issuers formed at least six months before the offering: Post (May 4, 2020–July 31, 251 ...... 13.4 ...... 156.1 2020). Pre (Feb. 5, 2020–May 3, 161 ...... 7.8 ...... 86.6 2020). Change Post vs. Pre ...... 56% ...... 72% ...... 80% 2019 (May 4, 2019—July 31, 100 ...... 5.7 ...... 58.8 2019). Change Post vs. 2019 ...... 151% ...... 137% ...... 165%
Important caveats apply: (1) The post- for the closing of an offering and lags in change coincided with potential May 4, 2020 period coincided with a Form C–U filing, we lack systematic confounding aggregate factors. It is also significant strengthening of the broader data on the success rate and proceeds possible that the trends in the number market sentiment, compared to the realized in offerings initiated under the of initiated offerings reflect a general market sentiment in the preceding temporary rules.39 We cannot infer increase in issuer interest in months; 38 (2) due to the time required causal effects because the regulatory crowdfunding over time independent of
31 See infra note 13. In addition, we recognize past issuers. See also Temporary Amendments structured data or standardized format and was that many of the past Regulation Crowdfunding Adopting Release, at 27124. evaluated based on manual review of filings for issuers may meet the six-month eligibility criterion 33 See https://www.finra.org/about/funding- mention of the temporary rules. See supra note 13. as of the effective date of these amendments, should portals-we-regulate (retrieved Aug. 22, 2020). 37 Based on staff analysis of EDGAR filings on they wish to avail themselves of the temporary 34 See also Temporary Amendments Adopting Form C, excluding amendments. relief for a follow-on offering under Regulation Release, at 27124. 38 Based on Bloomberg data, between May 4 and Crowdfunding. 35 July 31, 2020, Russell 3000 gained approximately 32 This figure likely provides a lower bound on For a more detailed discussion, see Temporary 16%. This is in contrast to the 16% decline in the the number of issuers that have initiated a follow- Amendments Adopting Release, at 27124–5. on offering after successfully completing a prior 36 Among those 94 offerings, 50 offerings initially index between February 5 and May 4, 2020. offering due to incomplete reporting of offering omitted financial statements, 38 relied on the 39 As of July 31, 2020, only a handful of reports proceeds on Form C–U. See supra note 22. Follow- shorter closing time, and 27 provided certified of proceeds on Form C–U were filed for offerings on issuance activity may differ from historical data rather than reviewed financial statements. (Some initiated on or after May 4, 2020. Issuers generally due to changes in the crowdfunding market as a offerings relied on multiple provisions.) These file Form C–U upon completion of an offering. The result of confounding market factors and continued estimates may represent a lower bound because typical issuer that has filed Form C–U has filed it uptake of the relief under the temporary rules by reliance on the provisions is not disclosed in a over two months after the initial filing of Form C.
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the temporary rules. Small sample sizes We recognize that the alternative of irrespective of cause. Further, warrant further caution in interpreting allowing the temporary rules to expire Regulation Crowdfunding offerings will the changes. could incrementally decrease concerns continue to be conducted through about investor protection,42 either due B. Economic Effects registered crowdfunding intermediaries, to the investors’ reduced time period which remain subject to Commission The temporary final rules currently in within which to make an informed and FINRA oversight. Crowdfunding effect serve as the economic baseline decision about an offering or the intermediaries remain required to take against which the costs and benefits, as increased ability of opportunistic measures to reduce the risk of fraud, well as the impact on efficiency, issuers seeking to exploit COVID–19 provide investor education materials competition, and capital formation, of concerns to raise capital from investors and issuer disclosures to investors, and the amendments are measured. Because through crowdfunding in an expedited the extension of the expiration dates in meet other substantive requirements of timeframe. Generally, however, the Regulation Crowdfunding. the temporary final rules maintains the aggregate incremental effect of the Intermediaries remain required to status quo, we do not expect additional temporary rules on retail investor provide communications channels on significant costs or benefits to result protection is likely limited by various from the extension. We also do not factors, including the tailoring of the the online platform to allow investors to expect the extension to have additional relief (through the eligibility draw on the wisdom of the crowd, significant effects on efficiency, requirements and the narrow scope and particularly in analyzing dynamic competition, or capital formation. In time-limited nature of the relief) and the information about short-term offerings. addition, while we expect the extension modest size of the Regulation Issuers remain subject to the extensive of the temporary relief to benefit small Crowdfunding market compared to disclosure requirements of Form C as businesses, it will not eliminate the other market segments that draw retail well as annual report obligations. While large-scale challenges facing small investors. Importantly, the eligibility the temporary rules provide exceptions businesses as a result of the COVID–19 requirements exclude issuers that were to certain timing requirements of crisis and ensuing disruptions to noncompliant with the requirements of Regulation Crowdfunding for eligible individual industries, the broader Regulation Crowdfunding in previous issuers, investors remain able to rescind economy, purchasing power of these offerings in which they sold securities. their commitments within 48 hours businesses’ consumers, and investor Further, to the extent that investors from the time of making their confidence. know less about newly formed issuers commitment, and from the time of a In the alternative, we could have with a limited track record, the material change to the offering. These allowed the temporary final rules to incremental risk of the temporary relief safeguards, as well as various other expire. Not extending the relief would to investors is reduced by the exclusion requirements of Regulation impose costs and reduce the flexibility from eligibility of issuers formed, or Crowdfunding offerings may have for small issuers adversely affected by with operations for, less than six served as key deterrents to potential COVID–19 seeking to meet their months prior to the offering. This financing needs through Regulation misconduct. Since the inception of limitation on eligibility will tailor the Regulation Crowdfunding, there have Crowdfunding. It also would create relief to assist existing issuers that competitive disparities for otherwise been relatively few enforcement actions require additional funds because of taken against issuers and intermediaries similar issuers that initiate offerings adverse effects caused by the closures in the crowdfunding market.43 Staff is before and after the expiration of the and safety measures designed to slow not aware of an increase in misconduct existing relief (August 31, 2020). As a the spread of COVID–19. Further, general matter, the flexibility to access issuers are required to disclose reliance due to the adoption of the temporary capital under Regulation Crowdfunding on the temporary rules to investors, rules. However, this inference is on an expedited basis facilitates capital enabling more informed decisions. inherently limited by the difficulty of formation and reduces some of the Moreover, while issuers may solicit identifying misconduct. barriers to accessing capital markets for investor interest after an initial Form C As another alternative, we could small issuers, allowing some issuers to filing without certain financial extend the relief for a shorter or longer raise additional capital or to optimize disclosures, intermediaries are not time period than specified in these their financing cost through a more allowed to accept investor commitments amendments. The alternative of efficient and streamlined offering before the issuer provides all required extending the relief for a shorter (longer) 40 process. By providing targeted relief in financial information. time period would lead to fewer (more) a market segment that primarily attracts In addition, we note that several potential issuers being afforded the small businesses, which are essential safeguards contained in the flexibility in capital raising under the disproportionately affected by 2015 Regulation Crowdfunding rules temporary rules, compared to the downturns, the temporary rules also continue to apply to issuers that rely on amendments. Because of the severe and serve to incrementally enhance the temporary rules. Crucially, offering continuing economic impact of the competition between small businesses and investment limits serve to limit the COVID–19 crisis, we believe that the and larger businesses (which tend to be potential magnitude of investor losses, less financially constrained).41 extension of the temporary rules is appropriate.44 capital markets to mitigate financing constraints. 40 See also supra notes 11, 12, and 14. See, e.g., Venkat Kuppuswamy and Bele´n 41 Research has related small size to financing Villalonga (2016) Does Diversification Create Value 43 See 2019 Regulation Crowdfunding Report, at constraints, and conversely, larger size to being less in the Presence of External Financing Constraints? 5. financially constrained. See, e.g., Nathalie Moyen Evidence from the 2007–2009 Financial Crisis, 44 As another alternative, we could extend some (2004) Investment–Cash Flow Sensitivities: Management Science 62(4), 905–923 (showing that but not all of the provisions of the temporary rules, Constrained versus Unconstrained Firms, Journal of ‘‘the value of corporate diversification increased or modify further some of the provisions of the Finance 59(5), 2061–2092; Christopher Hennessy, during the 2007–2009 financial crisis’’ and that temporary relief. For a detailed discussion of the Amnon Levy, and Toni Whited (2007) Testing Q ‘‘conglomerates’ access to internal capital markets economic effects of the individual provisions and Theory with Financing Frictions, Journal of became more valuable’’). See also supra note 25. the alternatives involving modifications of the Financial Economics 83(3), 691–717. Other studies 42 See also Temporary Amendments Adopting provisions in the temporary rules, see Temporary also show that diversified firms can rely on internal Release, at 27122; Better Markets letter. Amendments Adopting Release, at 27121–31.
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IV. Procedural and Other Matters urgent need of capital to continue their In accordance with the foregoing, title operations. 17, chapter II of the Code of Federal The Administrative Procedure Act Regulations is amended as follows: (‘‘APA’’) generally requires an agency to The temporary final rules provide relief from certain financial information publish notice of a rulemaking in the PART 227—REGULATION requirements of Regulation Federal Register and provide an CROWDFUNDING, GENERAL RULES Crowdfunding. In addition, the opportunity for public comment. This AND REGULATIONS requirement does not apply, however, if temporary final rules require issuers the agency ‘‘for good cause finds . . . relying on the temporary relief to ■ 1. The authority citation for part 227 that notice and public procedure are provide certain additional disclosures, continues to read as follows: impracticable, unnecessary, or contrary although, as we stated in the Temporary Amendments Adopting Release, we Authority: 15 U.S.C. 77d, 77d–1, 77s, 77z– to the public interest.’’ 45 The APA also 3, 78c, 78o, 78q, 78w, 78mm, and Pub. L. generally requires that an agency expect the burden of those disclosures 112–106, secs. 301–305, 126 Stat. 306 (2012). publish an adopted rule in the Federal to be minimal. We also stated in the § 227.100 [Amended] Register at least 30 days before it Temporary Amendments Adopting becomes effective. This requirement Release that overall, we expect the ■ 2. In § 227.100(b)(7) introductory text, does not apply, however, if the agency temporary final rules to result in a net remove the date ‘‘August 31, 2020’’ and finds good cause for making the rule decrease in compliance burden per form add in its place the date ‘‘February 28, effective sooner.46 for Form C (OMB Control No. 3235– 2021’’. 0307); however, because of a possible Given the temporary nature of both increase in the number of issuers relying § 227.201 [Amended] the relief contemplated by the on Regulation Crowdfunding, we ■ 3. In § 227.201(z) introductory text, temporary final rules and the extension believe that the net change in remove the date ‘‘August 31, 2020’’ and of such relief, as well as the significant, paperwork burden will be minimal.49 add in its place the date ‘‘February 28, unprecedented, and immediate impact Accordingly, we did not adjust the 2021’’. of COVID–19 on affected issuers, as burden or cost estimates associated with discussed above, the Commission finds existing collections of information § 227.301 [Amended] that good cause exists to dispense with under Regulation Crowdfunding for ■ 4. In § 227.301(d), remove the date notice and comment as impracticable, purposes of the Paperwork Reduction ‘‘August 31, 2020’’ and add in its place unnecessary, or contrary to the public Act of 1995.50 The extension of the the date ‘‘February 28, 2021’’. interest, and to act immediately to applicability and expiration dates of the § 227.303 [Amended] extend the applicability and expiration temporary final rules does not change dates of the temporary amendments to our analysis. ■ 5. In § 227.303(g)(1) introductory text Rules 100, 201, 301, 303 and 304 of and (2), remove the date ‘‘August 31, Regulation Crowdfunding.47 In Pursuant to the Congressional Review Act,51 the Office of Information and 2020’’ and add in its place the date particular, small businesses continue to ‘‘February 28, 2021’’. be affected by the closures and safety Regulatory Affairs has designated the measures designed to slow the spread of temporary final rules as a ‘‘major rule,’’ § 227.304 [Amended] as defined by 5 U.S.C. 804(2). COVID–19 and may face urgent funding ■ 6. In § 227.304(e) introductory text, needs 48 that could be addressed by use V. Statutory Basis remove the date ‘‘August 31, 2020’’ and of the internet to reach potential add in its place the date ‘‘February 28, We are temporarily amending Rules investors. In the current circumstances, 2021’’. a delay in implementation would 100, 201, 301, 303, and 304 of substantially undermine the relief Regulation Crowdfunding and Form C PART 239—FORMS PRESCRIBED provided by the temporary rules and under the authority set forth in the UNDER THE SECURITIES ACT OF 1933 could exacerbate the existing challenges Securities Act (15 U.S.C. 77a et seq.), ■ faced by many small businesses in particularly, Section 28 thereof as 7. The general authority citation for follows, and the expiration date for the part 239 continues to read as follows: temporary final rules published May 7, 45 5 U.S.C. 553(b)(3)(B). Authority: 15 U.S.C. 77c, 77f, 77g, 77h, 77j, 46 5 U.S.C. 553(d)(3). 2020 (85 FR 27116) is extended from 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 47 This finding also satisfies the requirements of March 1, 2021, to September 1, 2021. 78o(d), 78o–7 note, 78u–5, 78w(a), 78ll, 5 U.S.C. 808(2), allowing the temporary final rules 78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a– to become effective notwithstanding the List of Subjects 10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, requirement of 5 U.S.C. 801 (if a Federal agency 17 CFR Part 227 and 80a–37; and sec. 107, Pub. L. 112–106, finds that notice and public comment are 126 Stat. 312, unless otherwise noted. impractical, unnecessary or contrary to the public Crowdfunding, Funding portals, interest, a rule shall take effect at such time as the * * * * * Intermediaries, Reporting and Federal agency promulgating the rule determines). ■ 8. In Form C (referenced in § 239.900) The temporary final rules also do not require recordkeeping requirements, Securities. analysis under the Regulatory Flexibility Act. See remove the words ‘‘August 31, 2020’’ in 5 U.S.C. 604(a) (requiring a final regulatory 17 CFR Part 239 the second paragraph to the flexibility analysis only for rules required by the introductory paragraphs in the Optional APA or other law to undergo notice and comment). Administrative practice and Question and Answer Format for an One commenter expressed concern that the procedure, Reporting and recordkeeping Offering Statement and add, in their Commission adopted the temporary final rules requirements, Securities. without public input. See Better Markets letter. place, the words ‘‘February 28, 2021’’. However, consistent with the discussion above, we By the Commission. believe this approach was warranted given the 49 We note that the temporary nature of the extraordinary challenges faced by many issuers amendments and the inherent uncertainty in Dated: August 28, 2020. under the current circumstances as well as the fact estimating how many issuers will take advantage of Vanessa A. Countryman, the temporary relief makes estimation of the net that any delay in implementation would have Secretary. substantially undermined the intended benefits of change in paperwork burden difficult. the temporary relief. 50 44 U.S.C. 3501 et seq. [FR Doc. 2020–19468 Filed 8–31–20; 11:15 am] 48 See supra note 1. 51 5 U.S.C. 801 et seq. BILLING CODE 8011–01–P
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DEPARTMENT OF THE TREASURY definitive viticultural areas and regulate • The appropriate United States the use of their names as appellations of Geological Survey (USGS) map(s) Alcohol and Tobacco Tax and Trade origin on wine labels and in wine showing the location of the proposed Bureau advertisements. Part 9 of the TTB AVA, with the boundary of the regulations (27 CFR part 9) sets forth proposed AVA clearly drawn thereon; 27 CFR Part 9 standards for the preparation and and • [Docket No. TTB–2019–0008; T.D. TTB–162; submission to TTB of petitions for the A detailed narrative description of Ref: Notice No. 186] establishment or modification of the proposed AVA boundary based on American viticultural areas (AVAs) and USGS map markings. RIN 1513–AC53 lists the approved AVAs. Royal Slope Petition Establishment of the Royal Slope Definition TTB received a petition from Dr. Alan Viticultural Area Section 4.25(e)(1)(i) of the TTB Busacca, a licensed geologist and AGENCY: Alcohol and Tobacco Tax and regulations (27 CFR 4.25(e)(1)(i)) defines founder of Vinitas Vineyard Trade Bureau, Treasury. a viticultural area for American wine as Consultants, LLC, on behalf of the Royal ACTION: Final rule; Treasury decision. a delimited grape-growing region having Slope Wine Grower’s Association, distinguishing features, as described in proposing the establishment of the SUMMARY: The Alcohol and Tobacco Tax part 9 of the regulations, and a name ‘‘Royal Slope’’ AVA in Adams and and Trade Bureau (TTB) establishes the and a delineated boundary, as Grant Counties, in Washington. The approximately 156,389-acre ‘‘Royal established in part 9 of the regulations. proposed Royal Slope AVA lies entirely Slope’’ viticultural area in Adams and These designations allow vintners and within the established Columbia Valley Grant Counties, in Washington. The consumers to attribute a given quality, AVA (27 CFR 9.74). Royal Slope viticultural area is located reputation, or other characteristic of a Within the 156,389-acre proposed entirely within the existing Columbia wine made from grapes grown in an area AVA, there are currently 13 producing Valley viticultural area. TTB designates to the wine’s geographic origin. The commercial vineyards which cover a viticultural areas to allow vintners to establishment of AVAs allows vintners total of approximately 14,100 acres. better describe the origin of their wines to describe more accurately the origin of There is also one winery within the and to allow consumers to better their wines to consumers and helps proposed AVA. According to the identify wines they may purchase. consumers to identify wines they may petition, the distinguishing features of DATES: This final rule is effective purchase. Establishment of an AVA is the proposed Royal Slope AVA are its October 2, 2020. neither an approval nor an endorsement climate, topography, geology, and soils. FOR FURTHER INFORMATION CONTACT: by TTB of the wine produced in that The climate of the proposed Royal Karen A. Thornton, Regulations and area. Slope AVA is described as warm but not excessively hot, making it a suitable Rulings Division, Alcohol and Tobacco Requirements Tax and Trade Bureau, 1310 G Street climate for growing a variety of red and NW, Box 12, Washington, DC 20005; Section 4.25(e)(2) of the TTB white grape varietals, including phone 202–453–1039, ext. 175. regulations (27 CFR 4.25(e)(2)) outlines Cabernet Franc, Merlot, Syrah, the procedure for proposing an AVA SUPPLEMENTARY INFORMATION: Chardonnay, and Riesling. The and provides that any interested party proposed AVA generally has greater Background on Viticultural Areas may petition TTB to establish a grape- growing degree day 1 accumulations and TTB Authority growing region as an AVA. Section 9.12 an average cool-climate viticulture of the TTB regulations (27 CFR 9.12) sustainability index 2 number than all of Section 105(e) of the Federal Alcohol prescribes standards for petitions for the the surrounding regions except the Administration Act (FAA Act), 27 establishment or modification of AVAs. regions to the south and north. The U.S.C. 205(e), authorizes the Secretary Petitions to establish an AVA must proposed AVA also has a lower risk of of the Treasury to prescribe regulations include the following: vine-damaging freezes, as it generally for the labeling of wine, distilled spirits, • Evidence that the area within the has fewer days per year with and malt beverages. The FAA Act proposed AVA boundary is nationally temperatures below 32 degrees provides that these regulations should, or locally known by the AVA name Fahrenheit (F) than all of the among other things, prohibit consumer specified in the petition; surrounding regions except the region to deception and the use of misleading • An explanation of the basis for the south. Finally, the proposed AVA statements on labels and ensure that defining the boundary of the proposed has an average of only 9 days a year labels provide the consumer with AVA; with temperatures above 95 degrees F, adequate information as to the identity • A narrative description of the which is fewer than the region to the and quality of the product. The Alcohol features of the proposed AVA affecting south, and has fewer very hot days per and Tobacco Tax and Trade Bureau viticulture, such as climate, geology, year than the regions to the north, east, (TTB) administers the FAA Act soils, physical features, and elevation, pursuant to section 1111(d) of the that make the proposed AVA distinctive 1 See Albert J. Winkler, General Viticulture Homeland Security Act of 2002, and distinguish it from adjacent areas (Berkeley: University of California Press, 2nd ed. codified at 6 U.S.C. 531(d). The outside the proposed AVA boundary; 1974), pages 61–64. In the Winkler climate Secretary has delegated the functions • If the proposed AVA is to be classification system, annual heat accumulation and duties in the administration and established within, or overlapping, an during the growing season, measured in annual growing degree days (GDDs), defines climatic enforcement of these provisions to the existing AVA, an explanation that both regions. One GDD accumulates for each degree TTB Administrator through Treasury identifies the attributes of the proposed Fahrenheit that a day’s mean temperature is above Order 120–01, dated December 10, 2013 AVA that are consistent with the 50 degrees, the minimum temperature required for (superseding Treasury Order 120–01, existing AVA and explains how the grapevine growth. 2 The cool-climate viticulture sustainability index dated January 24, 2003). proposed AVA is sufficiently distinct represents the number of days between the last Part 4 of the TTB regulations (27 CFR from the existing AVA and therefore temperature below 29 degrees F in the spring and part 4) authorizes TTB to establish appropriate for separate recognition; the first temperature below 29 degrees F in the fall.
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and west. Grape vines shut down Kennewick, which together comprise Slope AVA and generally state that the photosynthesis at temperatures above 95 approximately 59 percent of the soil in proposed AVA has a distinct character degrees F, which can slow or even stop the proposed AVA. By contrast, the due to its soils and microclimate. Three the synthesis of sugars and other regions to the east, west, and immediate of the comments support creating the ripening factors and may delay harvest. south of the proposed AVA are proposed Royal Slope AVA so as to The topography of the proposed Royal scablands, which have very little, if any, distinguish this region from other areas Slope AVA is characterized by the topsoil. Farther south of the proposed within the established Columbia Valley gentle, south-facing slopes of an east- AVA, within the established Wahluke AVA. However, no commenters state the west trending range of hills called the Slope AVA (27 CFR 9.192), the soils are features within the proposed AVA are Frenchman Hills. Slope angles are deep and fertile but are primarily so distinguishable as to result in the generally less than 15 percent, with very Entisols, including the Quincy soil proposed Royal Slope AVA no longer few slopes having angles of less than 3 series, which comprise less than two being part of the established Columbia percent. The slopes are gentle enough percent of the soils in the proposed Valley AVA. for agricultural purposes and are not as AVA. The region to the north of the freeze-prone as flatter terrains such as proposed AVA is also primarily TTB Determination valley floors. To the north of the composed of Entisols, including the After careful review of the petition proposed AVA, the Frenchman Hills fall Quincy soil series. and the comments received in response away to the Quincy Basin, which is a to Notice No. 186, TTB finds that the large, flat-floored valley. To the Notice of Proposed Rulemaking and Comments Received evidence provided by the petitioner northeast are sand dunes and ‘‘pothole’’ supports the establishment of the Royal ponds between the dune crests. To the TTB published Notice No. 186 in the Slope AVA. Accordingly, under the east and south of the proposed AVA is Federal Register on October 15, 2019 authority of the FAA Act, section the Crab Creek Coulee, which is (84 FR 55075), proposing to establish 1111(d) of the Homeland Security Act of described as a ‘‘moonscape of bedrock- the Royal Slope AVA. In the notice, TTB 2002, and parts 4 and 9 of the TTB dominated scabland’’ unsuitable for summarized the evidence from the regulations, TTB establishes the ‘‘Royal agriculture. To the west is the canyon of petition regarding the name, boundary, Slope’’ AVA in Adams and Grant and distinguishing features for the the Columbia River, which has lower Counties, in Washington, effective 30 proposed AVA. The notice also elevations and steeper, rockier terrain days from the publication date of this compared the distinguishing features of than the proposed AVA. document. The proposed Royal Slope AVA, like the proposed AVA to the surrounding the rest of the Columbia Valley AVA, is areas. For a detailed description of the TTB has also determined that the underlain with Miocene-era basaltic evidence relating to the name, Royal Slope AVA will remain part of the bedrock and has been affected by Ice boundary, and distinguishing features of established Columbia Valley AVA. As Age megafloods. Within the region of the proposed AVA and boundary discussed in Notice No. 186, the Royal the proposed AVA, the floodwaters modification, and for a detailed Slope AVA shares some broad followed flood channels to the east and comparison of the distinguishing characteristics with the established northeast. The waters entered the region features of the proposed AVA to the AVA. For example, the proposed AVA in a relatively smooth fashion, and the surrounding areas, see Notice No. 186. and the Columbia Valley AVA are both proposed AVA remained largely above In Notice No. 186, TTB solicited described as treeless regions of the floodwaters. As a result, the comments on the accuracy of the name, undulating hills adjacent to the proposed AVA was not heavily eroded boundary, and other required Columbia River. Additionally, the Royal and remained a landscape of gentle hills information submitted in support of the Slope AVA and Columbia Valley AVA with deep soils suitable for cultivation. petition. In addition, given the proposed both have growing seasons longer than By contrast, the regions to the east and Royal Slope AVA’s location within the 150 days and similar annual rainfall south of the proposed AVA were eroded Columbia Valley AVA, TTB solicited amounts. However, the smaller Royal by fast-moving floodwaters which cut comments on whether the evidence Slope AVA is much more uniform in its deeply into the landscape and formed submitted in the petition regarding the climate, topography, geology, and soils the scablands of Crab Creek Coulee. distinguishing features of the proposed than the much larger Columbia Valley Similarly strong floodwaters flowed AVA sufficiently differentiates it from AVA. For example, the Royal Slope through the region to the west of the the established AVA. TTB also AVA does not contain any scablands or proposed AVA, creating the steep requested comments on whether the any other regions with large amounts of canyon of the Columbia River. North of geographic features of the proposed exposed bedrock, and it has a more the proposed AVA, the floodwaters AVA are so distinguishable from the limited variety of soils than the diverse were smoother and gentler and established Columbia Valley AVA that Columbia Valley AVA. deposited vast amounts of sand in what the proposed AVA should no longer be Boundary Description is now the Quincy Basin, creating a part of the established AVA. The landscape of dunes and ‘‘pothole’’ lakes. comment period closed December 16, See the narrative description of the Within the proposed AVA, the soils 2019. boundary of the Royal Slope AVA in the are a combination of sediments from In response to Notice No. 186, TTB regulatory text published at the end of glacial floods and wind-blown post- received a total of 24 comments. The this final rule. glacial sand and silt (loess). The soils commenters included individuals from Maps are generally deep enough for vines to several wineries within Washington extend their roots far into the soil before State who use grapes grown in the The petitioners provided the required encountering bedrock or other proposed AVA, vineyard owners within maps, and they are listed below in the impediments. The predominant soils are the proposed AVA, a sommelier, a regulatory text. The Royal Slope AVA Aridosols, which are characterized as contributing editor from a wine boundary may also be viewed on the well-drained and low in organic magazine, and a wine grape consultant. AVA Map Explorer on the TTB website, material. Major soil series include All of the comments supported the at https://www.ttb.gov/wine/ava-map- Warden, Sagemoore, Adkins, and establishment of the proposed Royal explorer.
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Impact on Current Wine Labels wines from that area. Therefore, no (3) Proceed east for approximately 4 Part 4 of the TTB regulations prohibits regulatory flexibility analysis is miles along the southern boundaries of any label reference on a wine that required. Sections 9, 10, 11, and 12, T17N/R24E, to the southeastern corner of Section 12, indicates or implies an origin other than Executive Order 12866 the wine’s true place of origin. For a T17N/R24E; then It has been determined that this final (4) Proceed north for approximately wine to be labeled with an AVA name rule is not a significant regulatory action 1.8 miles along the eastern boundaries or with a brand name that includes an as defined by Executive Order 12866 of of Sections 12 and 1, T17N/R24E, to the AVA name, at least 85 percent of the September 30, 1993. Therefore, no intersection of the eastern boundary of wine must be derived from grapes regulatory assessment is required. Section 1 and the southern boundary of grown within the area represented by the Desert Unit of the Columbia Basin that name, and the wine must meet the Drafting Information State Wildlife Area; then other conditions listed in 27 CFR Karen A. Thornton of the Regulations (5) Proceed easterly for approximately 4.25(e)(3). If the wine is not eligible for and Rulings Division drafted this final 20 miles along the boundary of the labeling with an AVA name and that rule. Desert Unit of the Columbia Basin State name appears in the brand name, then Wildlife Area to the intersection of the the label is not in compliance and the List of Subjects in 27 CFR Part 9 wildlife area boundary with O’Sullivan bottler must change the brand name and Wine. Dam Road/State Highway 262; then obtain approval of a new label. The Regulatory Amendment (6) Proceed east for approximately 1.5 Similarly, if the AVA name appears in miles along O’Sullivan Dam Road/State For the reasons discussed in the another reference on the label in a Highway 262 to the intersection of the preamble, TTB amends title 27, chapter misleading manner, the bottler would road with an unnamed road known I, part 9, Code of Federal Regulations, as have to obtain approval of a new label. locally as H Road SE; then Different rules apply if a wine has a follows: (7) Proceed southeasterly for brand name containing an AVA name approximately 1.6 miles along H Road that was used as a brand name on a PART 9—AMERICAN VITICULTURAL AREAS SE to the intersection of the road with label approved before July 7, 1986. See the southern boundary of Section 16, 27 CFR 4.39(i)(2) for details. ■ 1. The authority citation for part 9 T17N/R28E; then With the establishment of the Royal continues to read as follows: (8) Proceed east for approximately 0.4 Slope AVA, its name, ‘‘Royal Slope,’’ mile along the southern boundary of Authority: 27 U.S.C. 205. will be recognized as a name of Section 16 to the intersection of the viticultural significance under Subpart C—Approved American southeastern corner of Section 16, § 4.39(i)(3) of the TTB regulations (27 Viticultural Areas T17N/R28E, and the western boundary CFR 4.39(i)(3)). The text of the of the Columbia National Wildlife regulations clarifies this point. ■ 2. Adding § 9.271 to subpart C to read Refuge; then Consequently, wine bottlers using the as follows: (9) Proceed southerly, then name ‘‘Royal Slope’’ in a brand name, southwesterly, for approximately 8 including a trademark, or in another § 9.271 Royal Slope. miles along the western boundary of the label reference as to the origin of the (a) Name. The name of the viticultural Columbia National Wildlife Refuge and wine, will have to ensure that the area described in this section is ‘‘Royal the concurrent western boundary of the product is eligible to use the AVA name Slope’’. For purposes of part 4 of this Goose Lakes Unit of the Columbia Basin as an appellation of origin. chapter, ‘‘Royal Slope’’ is a term of State Wildlife Area to the intersection of The establishment of the Royal Slope viticultural significance. the wildlife refuge boundary with the AVA will not affect the existing (b) Approved maps. The one United eastern boundary of Section 14, T16N/ Columbia Valley AVA, and any bottlers States Geological Survey (USGS) R27E; then using ‘‘Columbia Valley’’ as an 1:100,000 scale topographic map used to (10) Proceed south along the eastern appellation of origin or in a brand name determine the boundary of the Royal boundaries of Sections 14, 23, 26, and for wines made from grapes grown Slope viticultural area is ‘‘Priest Rapids, 35, T16N/R27E, to the intersection of within the Columbia Valley will not be WA,’’ 2015. the eastern boundary of Section 35 with affected by the establishment of this (c) Boundary. The Royal Slope State Highway 26; then new AVA. The establishment of the viticultural area is located in Grant and (11) Proceed northwesterly for Royal Slope AVA will allow vintners to Adams Counties in Washington. The approximately 3 miles along State use ‘‘Royal Slope’’ and ‘‘Columbia boundary of the Royal Slope viticultural Highway 26 to the intersection of the Valley’’ as appellations of origin for area is as described below: highway with the 250-meter elevation wines made primarily from grapes (1) The point of the beginning is on contour in the southwest corner of grown within the Royal Slope AVA if the Priest Rapids map at the intersection Section 21, T16/R27E; then the wines meet the eligibility of the 250 meter elevation contour and (12) Proceed westerly for requirements for the appellation. the northern boundary of Section 8, approximately 28 miles along the 250- T17N/R23E. From the beginning point, meter elevation contour to the Regulatory Flexibility Act proceed east for approximately 7 miles intersection of the elevation contour TTB certifies that this regulation will along the northern boundaries of with the eastern boundary of Section 26, not have a significant economic impact Sections 8, 9, 10, 11, and 12, T17N/ T16N/R23E; then on a substantial number of small R23E, and Sections 7 and 8, T17N/R24E (13) Proceed north for approximately entities. The regulation imposes no new to the northeast corner of Section 8, 1,100 feet along the eastern boundary of reporting, recordkeeping, or other T17N/R24E; then Section 26 to the northeast corner of administrative requirement. Any benefit (2) Proceed south for approximately 1 Section 26, T16N/R23E; then derived from the use of an AVA name mile along the eastern boundary of (14) Proceed west for 1 mile along the would be the result of a proprietor’s Section 8 to the southeast corner of northern boundary of Section 26, T16N/ efforts and consumer acceptance of Section 8, T17N/R24 E; then R23E, to the intersection with the
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eastern boundary of Section 22, T16N/ ‘‘SEARCH.’’ Click on Open Docket III. Legal Authority and Need for Rule R23E; then Folder on the line associated with this The Coast Guard is issuing this rule (15) Proceed north for 1 mile along rule. under authority in 46 U.S.C. 70034 the eastern boundary of Section 22 to FOR FURTHER INFORMATION CONTACT: (previously 33 U.S.C. 1231). The COTP the northern boundary of Section 22, If you have questions on this rule, call or North Carolina has determined that T16N/R23E; then potential hazards associated with the (16) Proceed west for approximately email Chief Petty Officer Joshua O’Rourke, Waterways Management Crystal Coast Grand Prix race scheduled 1.05 miles along the northern boundary for 9:00 a.m. through 5:00 p.m. on of Section 22, T16N/R23E, to the Division, U.S. Coast Guard Sector North Carolina, Wilmington, NC; telephone September 13, 2020, is a safety concern intersection of the section boundary for mariners during a high speed boat with the 250-meter elevation contour; 910–772–2227, email [email protected]. race on portions of the Alantic Intra then Coastal Waterway (AICW) and Beaufort (17) Proceed northerly for SUPPLEMENTARY INFORMATION: Inlet in Morehead City, North Carolina. approximately 10 miles along the 250- This rule is necessary to protect safety meter elevation contour to return to the I. Table of Abbreviations of life from the potential hazards beginning point. CFR Code of Federal Regulations associated with the high-speed boat Signed: April 15, 2020. DHS Department of Homeland Security race. Mary G. Ryan, FR Federal Register NPRM Notice of proposed rulemaking IV. Discussion of the Rule Acting Administrator. § Section This rule establishes an SLR on a Approved: July 1, 2020. U.S.C. United States Code portion of the AICW and Beaufort Inlet COTP Captain of the Port Timothy E. Skud, from 9 a.m. to 5 p.m. on September 13, Deputy Assistant Secretary (Tax, Trade, and II. Background Information and 2020. The time of enforcement will be Tariff Policy). Regulatory History broadcast locally over VHF–FM marine [FR Doc. 2020–17423 Filed 9–1–20; 8:45 am] radio. The SLR will include a race area BILLING CODE 4810–31–P The Coast Guard is issuing this on all navigable waters of the AICW and temporary rule without prior notice and Beaufort Inlet, North Carolina, from opportunity to comment pursuant to approximate positions: Latitude DEPARTMENT OF HOMELAND authority under section 4(a) of the 34°42′52″ N, longitude 076°43′16″ W, SECURITY Administrative Procedure Act (APA) (5 then east to latitude 34°42′52.2″ N, U.S.C. 553(b)). This provision longitude 076°42′11.04″ W, then east to Coast Guard authorizes an agency to issue a rule latitude 34°42′53.76″ N, longitude without prior notice and opportunity to 076°41′38.04″ W, then southeast to 33 CFR Part 100 comment when the agency for good latitude 34°42′10.8″ N, longitude [Docket Number USCG–2020–0468] cause finds that those procedures are 076°40′44.4″ W, then south to latitude ‘‘impracticable, unnecessary, or contrary 34°42′4.3″ N, longitude 076°40′48.1″ W, RIN 1625–AA08 to the public interest.’’ Under 5 U.S.C. then northwest to latitude 34°42′47.34″ 553(b)(B), the Coast Guard finds that ° ′ ″ Special Local Regulation; Atlantic N, longitude 076 41 49 W, then west to good cause exists for not publishing a ° ′ ″ Intracoastal Waterway, Morehead City, latitude 34 42 50 N, longitude notice of proposed rulemaking (NPRM) ° ′ ″ NC 076 43 16 W, then north to the point of with respect to this rule because it origin. This rule also temporarily AGENCY: Coast Guard, DHS. would be impracticable and contrary to establishes a portion of the AICW to be ACTION: Temporary final rule. the public interest. The Coast Guard was used as a spectator zone. The spectator unable to publish an NPRM and hold a area will be marked with temporary SUMMARY: The Coast Guard is comment period for this rulemaking due buoys and will be at least 100 yards establishing a temporary special local to the short time period between event from the race course, south of Sugarloaf regulation (SLR) for certain navigable planners notifying the Coast Guard of Island, North Carolina, from waters of the Atlantic Intracoastal the event and required publication of approximate positions: Latitude Waterway (AICW) and Beaufort Inlet in this rule. Immediate action is needed to 34°42′42″ N, longitude 076°43′15″ W, Morehead City, North Carolina. This protect persons and vessels from the then east to latitude 34°42′41″ N, SLR is intended to restrict vessel traffic hazards associated with this event. It is longitude 076°42′14″ W, then south to on the AICW and Beaufort Inlet during impracticable and contrary to the public latitude 34°42′32″ N, longitude high-speed boat races. The restriction of interest to publish an NPRM because a 076°42′14″ W, then west to latitude vessel traffic movement in the SLR is final rule needs to be in place by 34°42′32″ N, longitude 076°43′15″ W, intended to protect participants and September 13, 2020, to minimize then north to the point of origin. This spectators from the hazards posed by potential danger to the participants and rule also temporarily establishes a buffer these events. Entry of vessels or persons the public during the event. area around the perimeter of the race into this regulated area is prohibited Under 5 U.S.C. 553(d)(3), the Coast area, from approximate positions: unless specifically authorized by the Guard finds that good cause exists for Latitude 34°42′55″ N, longitude Captain of the Port (COTP) North making this rule effective less than 30 076°43′15″ W, then east to latitude Carolina or a designated representative. days after publication in the Federal 34°42′56″ N, longitude 076°42′13″ W, DATES: This rule is effective from 9 a.m. Register. Delaying the effective date of then east to latitude 34°42′57″ N, to 5 p.m. on September 13, 2020. this rule would be impracticable and longitude 076°41′41″ W, then east to ADDRESSES: To view documents contrary to public interest because latitude 34°42′57″ N, longitude mentioned in this preamble as being immediate action is needed to protect 076°41′25″ W, then south east to available in the docket, go to https:// persons and vessels from the hazards latitude 34°42′23″ N, longitude www.regulations.gov, type USCG–2020– associated with this event on September 076°40′44″ W, then south to latitude 0468 in the ‘‘SEARCH’’ box and click 13, 2020. 34°41′59″ N, longitude 076°40′43″ W,
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then north west to latitude 34°42′41″ N, operated and are not dominant in their with Indian Tribal Governments, longitude 076°42′05″ W, then west to fields, and governmental jurisdictions because it does not have a substantial latitude 34°42′42″ N, longitude with populations of less than 50,000. direct effect on one or more Indian 076°43′15″ W, then north to its point of The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the origin. 605(b) that this rule will not have a Federal Government and Indian tribes, The duration of this SLR is intended significant economic impact on a or on the distribution of power and to protect participants and spectators on substantial number of small entities. responsibilities between the Federal the navigable waters of the AICW and While some owners or operators of Government and Indian tribes. Beafort Inelt during the high-speed boat vessels intending to transit the SLR may race. Vessels may request permission to be small entities, for the reasons stated E. Unfunded Mandates Reform Act in section IV.A above, this proposed pass through the SLR between race The Unfunded Mandates Reform Act rule would not have a significant heats. No vessel or person will be of 1995 (2 U.S.C. 1531–1538) requires economic impact on any vessel owner permitted to enter the SLR without Federal agencies to assess the effects of or operator. obtaining permission from the COTP their discretionary regulatory actions. In Under section 213(a) of the Small North Carolina or a designated particular, the Act addresses actions Business Regulatory Enforcement representative. The regulatory text that may result in the expenditure by a Fairness Act of 1996 (Pub. L. 104–121), appears at the end of this document. State, local, or tribal government, in the we want to assist small entities in aggregate, or by the private sector of V. Regulatory Analyses understanding this rule. If the rule $100,000,000 (adjusted for inflation) or We developed this rule after would affect your small business, more in any one year. Though this rule considering numerous statutes and organization, or governmental will not result in such an expenditure, Executive orders related to rulemaking. jurisdiction and you have questions we do discuss the effects of this rule Below we summarize our analyses concerning its provisions or options for elsewhere in this preamble. based on a number of these statutes and compliance, please call or email the Executive orders, and we discuss First person listed in the FOR FURTHER F. Environment Amendment rights of protestors. INFORMATION CONTACT section. Small businesses may send comments We have analyzed this rule under A. Regulatory Planning and Review on the actions of Federal employees Department of Homeland Security Executive Orders 12866 and 13563 who enforce, or otherwise determine Directive 023–01, Rev. 1, associated direct agencies to assess the costs and compliance with, Federal regulations to implementing instructions, and benefits of available regulatory the Small Business and Agriculture Environmental Planning COMDTINST alternatives and, if regulation is Regulatory Enforcement Ombudsman 5090.1 (series), which guide the Coast necessary, to select regulatory and the Regional Small Business Guard in complying with the National approaches that maximize net benefits. Regulatory Fairness Boards. The Environmental Policy Act of 1969 (42 Executive Order 13771 directs agencies Ombudsman evaluates these actions U.S.C. 4321–4370f), and have to control regulatory costs through a annually and rates each agency’s determined that this action is one of a budgeting process. This rule has not responsiveness to small business. If you category of actions that do not been designated a ‘‘significant wish to comment on actions by individually or cumulatively have a regulatory action,’’ under Executive employees of the Coast Guard, call 1– significant effect on the human Order 12866. Accordingly, this rule has 888–REG–FAIR (1–888–734–3247). The environment. This rule involves an SLR not been reviewed by the Office of Coast Guard will not retaliate against lasting only eight hours on September Management and Budget (OMB), and small entities that question or complain 13, 2020, to be enforced during active pursuant to OMB guidance it is exempt about this rule or any policy or action race events. It is categorically excluded from the requirements of Executive of the Coast Guard. from further review under paragraph Order 13771. L61 of Appendix A, Table 1 of DHS This regulatory action determination C. Collection of Information Instruction Manual 023–01–001–01, is based on the size, location, and This rule will not call for a new Rev. 1. A Record of Environmental duration of the SLR. Vessel traffic will collection of information under the Consideration supporting this not be allowed to enter or transit a Paperwork Reduction Act of 1995 (44 determination is available in the docket. portion of the AICW or Beaufort Inlet U.S.C. 3501–3520). For instructions on locating the docket, during an active race event from 9 a.m. D. Federalism and Indian Tribal see the ADDRESSES section of this through 5 p.m. on Setember 13, 2020. preamble. The Coast Guard will transmit a Governments Broadcast Notice to Mariners via VHF– A rule has implications for federalism G. Protest Activities FM marine channel 16 regarding the under Executive Order 13132, The Coast Guard respects the First enforcement period of the SLR. This Federalism, if it has a substantial direct Amendment rights of protesters. rule allows vessels to request effect on the States, on the relationship Protesters are asked to call or email the permission to pass through the between the National Government and person listed in the FOR FURTHER regulated area between race heats. the States, or on the distribution of power and responsibilities among the INFORMATION CONTACT section to B. Impact on Small Entities various levels of government. We have coordinate protest activities so that your The Regulatory Flexibility Act of analyzed this rule under that Order and message can be received without 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent jeopardizing the safety or security of requires Federal agencies to consider with the fundamental federalism people, places or vessels. the potential impact of regulations on principles and preemption requirements List of Subjects in 33 CFR Part 100 small entities during rulemaking. The described in Executive Order 13132. term ‘‘small entities’’ comprises small Also, this rule does not have tribal Marine safety, Navigation (water), businesses, not-for-profit organizations implications under Executive Order Reporting and recordkeeping that are independently owned and 13175, Consultation and Coordination requirements, Waterways.
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PART 100—SAFETY OF LIFE ON conflicts with marine event participants DEPARTMENT OF HOMELAND NAVIGABLE WATERS and spectator vessels or nearby SECURITY transiting vessels. This area provides ■ 1. The authority citation for part 100 separation between a Race Area and a Coast Guard continues to read as follows: specified Spectator Area or other vessels Authority: 46 U.S.C. 70041; 33 CFR 1.05– that are operating in the vicinity of the 33 CFR Part 117 1. regulated area established by the special [Docket No. USCG–2020–0056] ■ 2. Add § 100.T500–0468 to read as local regulations. follows: Captain of the Port means the Drawbridge Operation Regulation; Fox Commander, Sector North Carolina. River, Oshkosh, WI § 100.T500–0468 Crystal Coast Grand Prix, Morehead City, NC. Designated representative means a AGENCY: Coast Guard, DHS. Coast Guard Patrol Commander, (a) Regulated areas. The regulations ACTION: Notice of temporary deviation including a Coast Guard commissioned, in this section apply to the following from regulations; request for comments. warrant, or petty officer designated by areas: the Captain of the Port North Carolina SUMMARY: The Coast Guard has issued a (1) The Race Area is designated as all temporary deviation from the operating navigable waters of the AICW and (COTP) for the enforcement of the safety zone. schedule for the Canadian National Beaufort Inlet, North Carolina, from Bridge, mile 55.72, over the Fox River approximate positions: Latitude Spectator Area is an area described by to operate remotely. The request was ° ′ ″ ° ′ ″ 34 42 52 N, longitude 076 43 16 W, a line bound by coordinates provided in made by the bridge owner. This test ° ′ ″ then east to latitude 34 42 52.2 N, latitude and longitude that outlines the deviation will test the remote operations ° ′ ″ longitude 076 42 11.04 W, then east to boundary of a spectator area within the with tenders onsite, and will not change ° ′ ″ latitude 34 42 53.76 N, longitude regulated area defined by this part. the operating schedule of the bridge. ° ′ ″ 076 41 38.04 W, then southeast to (c) Regulations. DATES: This deviation is effective latitude 34°42′10.8″ N, longitude ° ′ ″ (1) Everyone other than participants without actual notice from September 2, 076 40 44.4 W, then south to latitude 2020 through 11:59 p.m. on October 8, 34°42′4.3″ N, longitude 076°40′48.1″ W, are prohibited from entering, transiting ° ′ ″ through, anchoring in, or getting 2020. For purposes of enforcement, then northwest to latitude 34 42 47.34 actual notice will be used from 12:01 N, longitude 076°41′49″ W, then west to underway within the regulated area ° ′ ″ described in paragraph (a)(1) of this a.m. on April 26, 2020 to September 2, latitude 34 42 50 N, longitude 2020 Comments and relate material 076°43′16″ W, then north to the point of section unless authorized by the COTP North Carolina or their designated must reach the Coast Guard on or before origin. October 9, 2020. (2) The Spectator Area is designated representative. ADDRESSES: You may submit comments as all waters of the AICW, North (2) Everyone other than particpants, identified by docket number USCG– Carolina, from approximate positions: including those engaged in spectating, 2020–0056 using Federal eRulemaking Latitude 34°42′42″ N, longitude may be directed by a designated Portal at https://www.regulations.gov. 076°43′15″ W, then east to latitude representative to the regulated area See the ‘‘Public Participation and 34°42′41″ N, longitude 076°42′14″ W, described in section (a) of this section, Request for Comments’’ portion of the then south to latitude 34°42′32″ N, where they must remain during the SUPPLEMENTARY INFORMATION section longitude 076°42′14″ W, then west to effective period unless otherwise below for instructions on submitting latitude 34°42′32″ N, longitude authorized or directed by a designated comments. 076°43′15″ W, then north to the point of representative. FOR FURTHER INFORMATION CONTACT: If origin. (3) To seek permission to enter, you have questions on this test (3) The Buffer Area is designated as contact the COTP by calling the Sector all waters of the AICW and Beaufort deviation, call or email Mr. Lee D. North Carolina Command Center at Soule, Bridge Management Specialist, Inlet, North Carolina, from approximate 910–343–3882 or contact the COTP’s positions: Latitude 34°42′55″ N, Ninth Coast Guard District; telephone ° ′ ″ designated representative on Marine 216–902–6085, email Lee.D.Soule@ longitude 076 43 15 W, then east to band Radio, VHF–FM channel 16 (156.8 latitude 34°42′56″ N, longitude uscg.mil. ° ′ ″ MHz). Those in the regulated area must 076 42 13 W, then east to latitude comply with all lawful orders or SUPPLEMENTARY INFORMATION: 34°42′57″ N, longitude 076°41′41″ W, ° ′ ″ directions given to them by the COTP or I. Background, Purpose and Legal Basis then east to latitude 34 42 57 N, the designated representative. longitude 076°41′25″ W, then south east In 2010 we published a Notice of to latitude 34°42′23″ N, longitude (d) Enforcement officials. The U.S. Proposed Rule Making (NPRM) (USCG– 076°40′44″ W, then south to latitude Coast Guard may be assisted in the 2010–1029) to solicit comments 34°41′59″ N, longitude 076°40′43″ W, patrol and enforcement of the safety concerning allowing the Canadian then north west to latitude 34°42′41″ N, zone by Federal, State, and local National Bridge, mile 55.72, over the longitude 076°42′05″ W, then west to agencies. Fox River to operate remotely. In latitude 34°42′42″ N, longitude (e) Enforcement. This SLR will be addition to the regular remote 076°43′15″ W, then north to its point of enforced from 9 a.m. through 5 p.m. on monitoring equipment, the public origin. Septmeber 13, 2020. requested that the bridge owner install (b) Definitions. As used in this and maintain additional warning lights. Dated: August 20, 2020. section— The NPRM was withdrawn because the Buffer Area is a neutral area that Matthew J. Baer, railroad refused to install and maintain surrounds the perimeter of the Race Captain, U.S. Coast Guard, Captain of the the additional warning lights the public Area within the regulated area described Port North Carolina. requested. Recently, the Railroad has by this section. The purpose of a buffer [FR Doc. 2020–19430 Filed 9–1–20; 8:45 am] agreed that from April 27 through area is to minimize potential collision BILLING CODE 9110–04–P October 7 additional warning lights,
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specifically those alternating flashing docket number for this rulemaking, specifically authorized by the Captain of red lights that mimic a Grade Crossing indicate the specific section of this the Port Columbia River. Signal commonly found at highway document to which each comment DATES: This rule is effective from 12:01 railroad crossing would be installed and applies, and provide a reason for each a.m. on September 6, 2020, through maintained to warn mariners that the suggestion or recommendation. 11:59 p.m. on September 26, 2020. bridge was about to close. The remote We encourage you to submit ADDRESSES: To view documents operator shall also announce that the comments through the Federal mentioned in this preamble as being bridge is opening or closing on VHF–FM eRulemaking Portal at https:// available in the docket, go to https:// Marine Radiotelephone. The owners of www.regulations.gov. If your material www.regulations.gov, type USCG–2020– the bridge shall maintain two board cannot be submitted using https:// 0247 in the ‘‘SEARCH’’ box and click gauges in accordance with 33 CFR www.regulations.gov, contact the person ‘‘SEARCH.’’ Click on Open Docket 118.160 of this chapter. The remote in the FOR FURTHER INFORMATION Folder on the line associated with this drawtender may be contacted by CONTACT section of this document for rule. mariners at any time by radiotelephone alternate instructions. or commercial phone number; this We accept anonymous comments. All FOR FURTHER INFORMATION CONTACT: If information shall be so posted on the comments received will be posted you have questions on this rule, call or bridge so that they are plainly visible to without change to https:// email Lieutenant Commander Dixon vessel operators approaching the up or www.regulations.gov and will include Whitley, Waterways Management downstream side of the bridge. The any personal information you have Division, Marine Safety Unit Portland, drawbridge currently operates under provided. For more about privacy and U.S. Coast Guard; telephone 503–240– Title 33 of the Code of Federal submissions in response to this 9319, email [email protected]. Regulation (CFR), section 117.1087. document, see DHS’s eRulemaking SUPPLEMENTARY INFORMATION: The bridge was remotely operated System of Records notice (85 FR 14226, I. Table of Abbreviations without authorization and was ordered March 11, 2020). to reinstate drawtenders at the bridge Documents mentioned in this test CFR Code of Federal Regulations after the District Commander received deviation as being available in this DHS Department of Homeland Security numerous complaints that the bridge docket and all public comments, will be FR Federal Register was not responsive. in our online docket at https:// NPRM Notice of proposed rulemaking The test deviation is necessary to § Section www.regulations.gov and can be viewed U.S.C. United States Code allow the public to observe the bridge in by following that website’s instructions. operation and allow the permanent and Additionally, if you go to the online II. Background Information and seasonal residents of the area the docket and sign up for email alerts, you Regulatory History opportunity to comment on the will be notified when comments are The Oregon Department of operation of the bridge. posted or a final rule is published. Most of the marine traffic at the bridge Transportation notified the Coast Guard is recreational to include both powered Dated: 12 August 2020. that they will be replacing bridge and unpowered vessels. Approximately D.L. Cottrell, components at the south end of the 100 vessels pass through the bridge on Rear Admiral, U.S. Coast Guard, Commander, Northbound I–5 Interstate Bridge over average each day and most vessels Ninth Coast Guard District. the Columbia River at River Mile 106.5 require the bridge to open. [FR Doc. 2020–18084 Filed 9–1–20; 8:45 am] beginning September 6, 2020, through The test schedule will run from 12:01 BILLING CODE 9110–04–P September 26, 2020. In response, on a.m. on April 26, 2020 to 11:59 p.m. on June 22, 2020, the Coast Guard October 8, 2020. During this test published a notice of proposed schedule, the bridge will operate DEPARTMENT OF HOMELAND rulemaking (NPRM) titled Safety Zone; remotely with tenders at the bridge to SECURITY I–5 Bridge Construction Project, monitor the effectiveness of the remote Columbia River, Vancouver, WA (85 FR equipment. The bridge owner will Coast Guard 37397). There we stated why we issued continue to maintain a drawtender’s log the NPRM, and invited comments on and provide those logs at the end of the 33 CFR Part 165 our proposed regulatory action related test deviation. Vessels able to safely to this construction project. During the pass under the bridge without an [Docket Number USCG–2020–0247] comment period that ended July 22, 2020, we did not receive any relevant opening may do so at any time. RIN 1625–AA00 In accordance with 33 CFR 117.35(e), comments. the drawbridge must return to its regular Safety Zone; I–5 Bridge Construction III. Legal Authority and Need for Rule operating schedule immediately at the Project, Columbia River, Vancouver, end of the effective period of this WA The Coast Guard is issuing this rule temporary deviation. This deviation under authority in 46 U.S.C. 70034 from the operating regulations is AGENCY: Coast Guard, DHS. (previously 33 U.S.C. 1231). The authorized under 33 CFR 117.35. ACTION: Temporary final rule. Captain of Port Sector Columbia River has determined that the potential II. Public Participation and Request for SUMMARY: The Coast Guard is hazards associated with the Comments establishing a temporary safety zone for construction project would be a safety We view public participation as certain waters of the Columbia River. concern for anyone within the essential to effective rulemaking, and This action is necessary to provide for designated area of the I–5 bridge will consider all comments and material the safety of life on these navigable construction project. The purpose of received during the comment period. waters around the Northbound I–5 this rulemaking is to ensure the safety Your comment can help shape the Interstate Bridge at Columbia River Mile of vessels and the navigable waters outcome of this rulemaking. If you 106.5. Entry of vessels or persons into within the designated area of the I–5 submit a comment, please include the this zone is prohibited unless bridge construction project.
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IV. Discussion of Comments, Changes, B. Impact on Small Entities effect on the States, on the relationship and the Rule The Regulatory Flexibility Act of between the National Government and the States, or on the distribution of As noted above, we received no 1980, 5 U.S.C. 601–612, as amended, power and responsibilities among the relevant comments on our NPRM requires Federal agencies to consider various levels of government. We have published June 22, 2020. There are no the potential impact of regulations on analyzed this rule under that Order and changes in the regulatory text of this small entities during rulemaking. The rule from the proposed rule in the term ‘‘small entities’’ comprises small have determined that it is consistent NPRM. businesses, not-for-profit organizations with the fundamental federalism principles and preemption requirements This rule establishes a safety zone that are independently owned and described in Executive Order 13132. from 12:01 a.m. on September 6, 2020, operated and are not dominant in their through 11:59 p.m. on September 26, fields, and governmental jurisdictions Also, this rule does not have tribal 2020. The safety zone will cover all with populations of less than 50,000. implications under Executive Order navigable waters of the Columbia River, The Coast Guard received no comments 13175, Consultation and Coordination directly below the lifting span of the I– from the Small Business Administration with Indian Tribal Governments, 5 bridge from the Washington shoreline on this rulemaking. The Coast Guard because it does not have a substantial to the edge of the lifting span (approx. certifies under 5 U.S.C. 605(b) that this direct effect on one or more Indian 800 ft.), and approximately 400 ft. both rule will not have a significant tribes, on the relationship between the east and west of the bridge. The economic impact on a substantial Federal Government and Indian tribes, duration of the zone is intended to number of small entities. or on the distribution of power and ensure the safety of vessels and these While some owners or operators of responsibilities between the Federal navigable waters while the bridge vessels intending to transit the safety Government and Indian tribes. construction is underway. No vessel or zone may be small entities, for the person would be permitted to enter the reasons stated in section V.A above, this E. Unfunded Mandates Reform Act safety zone without obtaining rule will not have a significant economic impact on any vessel owner The Unfunded Mandates Reform Act permission from the COTP or a of 1995 (2 U.S.C. 1531–1538) requires designated representative. or operator. Under section 213(a) of the Small Federal agencies to assess the effects of V. Regulatory Analyses Business Regulatory Enforcement their discretionary regulatory actions. In Fairness Act of 1996 (Pub. L. 104–121), particular, the Act addresses actions We developed this rule after we want to assist small entities in that may result in the expenditure by a considering numerous statutes and understanding this rule. If the rule State, local, or tribal government, in the Executive orders related to rulemaking. would affect your small business, aggregate, or by the private sector of Below we summarize our analyses organization, or governmental $100,000,000 (adjusted for inflation) or based on a number of these statutes and jurisdiction and you have questions more in any one year. Though this rule Executive orders, and we discuss First concerning its provisions or options for will not result in such an expenditure, Amendment rights of protestors. compliance, please call or email the we do discuss the effects of this rule A. Regulatory Planning and Review person listed in the FOR FURTHER elsewhere in this preamble. INFORMATION CONTACT section. F. Environment Executive Orders 12866 and 13563 Small businesses may send comments direct agencies to assess the costs and on the actions of Federal employees We have analyzed this rule under benefits of available regulatory who enforce, or otherwise determine alternatives and, if regulation is Department of Homeland Security compliance with, Federal regulations to Directive 023–01, Rev. 1, associated necessary, to select regulatory the Small Business and Agriculture approaches that maximize net benefits. implementing instructions, and Regulatory Enforcement Ombudsman Environmental Planning COMDTINST Executive Order 13771 directs agencies and the Regional Small Business to control regulatory costs through a 5090.1 (series), which guide the Coast Regulatory Fairness Boards. The Guard in complying with the National budgeting process. This rule has not Ombudsman evaluates these actions been designated a ‘‘significant Environmental Policy Act of 1969 (42 annually and rates each agency’s U.S.C. 4321–4370f), and have regulatory action,’’ under Executive responsiveness to small business. If you Order 12866. Accordingly, this rule has determined that this action is one of a wish to comment on actions by category of actions that do not not been reviewed by the Office of employees of the Coast Guard, call 1– individually or cumulatively have a Management and Budget (OMB), and 888–REG–FAIR (1–888–734–3247). The significant effect on the human pursuant to OMB guidance it is exempt Coast Guard will not retaliate against environment. This rule involves a safety from the requirements of Executive small entities that question or complain zone lasting 20 days that will prohibit Order 13771. about this rule or any policy or action vessel traffic from transiting underneath This regulatory action determination of the Coast Guard. is based on the size, location, duration, the lift span of the I–5 Bridge during and time-of-year of the safety zone. C. Collection of Information bridge repair and construction Vessel traffic would be able to safely This rule will not call for a new operations. It is categorically excluded transit around this safety zone, which collection of information under the from further review under paragraph would only impact a small designated Paperwork Reduction Act of 1995 (44 L60(a) of Appendix A, Table 1 of DHS area of the Columbia River, during the U.S.C. 3501–3520). Instruction Manual 023–01–001–01, bridge construction project. Moreover, Rev. 1. A Record of Environmental the Coast Guard will issue Broadcast D. Federalism and Indian Tribal Consideration supporting this Notice to Mariners via VHF–FM marine Governments determination is available in the docket. channel 16 about the safety zone, and A rule has implications for federalism For instructions on locating the docket, the rule would allow vessels to seek under Executive Order 13132, see the ADDRESSES section of this permission to enter the zone. Federalism, if it has a substantial direct preamble.
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G. Protest Activities in the safety zone must comply with all FOR FURTHER INFORMATION CONTACT: If The Coast Guard respects the First lawful orders or directions given to you have questions on this rule, call or Amendment rights of protesters. them by the COTP or the COTP’s email Chief Marine Science Technician Protesters are asked to call or email the designated representative. Thomas Watts, Sector Northern New person listed in the FOR FURTHER (d) Enforcement period. This section England Waterways Management INFORMATION CONTACT section to is in effect from 12:01 a.m. on Division, U.S. Coast Guard; telephone coordinate protest activities so that your September 6, 2020 through 11:59 p.m. 207–347–5003, email Thomas.F.Watts@ message can be received without on September 26, 2020. It will be subject uscg.mil. jeopardizing the safety or security of to enforcement this entire period unless SUPPLEMENTARY INFORMATION: people, places or vessels. the Captain of the Port, Columbia River determines it is no longer needed. The I. Table of Abbreviations List of Subjects in 33 CFR Part 165 Coast Guard will inform mariners of any CFR Code of Federal Regulations Harbors, Marine safety, Navigation change to this period of enforcement via DHS Department of Homeland Security (water), Reporting and recordkeeping Broadcast Notice to Mariners. FR Federal Register requirements, Security measures, Dated: August 6, 2020. NPRM Notice of proposed rulemaking § Section Waterways. J.C. Smith, For the reasons discussed in the U.S.C. United States Code Captain, U.S. Coast Guard, Captain of the COTP Captain of the Port preamble, the Coast Guard is amending Port Columbia River. RNA Regulated Navigation Area 33 CFR part 165 as follows: [FR Doc. 2020–17913 Filed 9–1–20; 8:45 am] TFR Temporary Final Rule PART 165—REGULATED NAVIGATION BILLING CODE 9110–04–P II. Background Information and AREAS AND LIMITED ACCESS AREAS Regulatory History ■ 1. The authority citation for part 165 DEPARTMENT OF HOMELAND On June 27, 2017, the U.S. Coast continues to read as follows: SECURITY Guard District One Bridge Branch issued a permit approving the Authority: 46 U.S.C. 70034, 70051; 33 CFR Coast Guard construction of the Beals Island Bridge 1.05–1, 6.04–1, 6.04–6, and 160.5; across the Moosabec Reach in Jonesport, Department of Homeland Security Delegation 33 CFR Part 165 No. 0170.1. Maine. On September 11, 2017, the [Docket Number USCG–2020–0447] contractor selected for the project ■ 2. Add § 165.T13–0247 to read as submitted their request to the follows: RIN 1625–AA00 Waterways Management Division of § 165.T13 0247 Safety Zone[s]; Safety Safety Zone; Beals Island Bridge U.S. Coast Guard Sector Northern New Zone; I–5 Bridge Construction Project, Demolition, Moosabec Reach, England. The COTP Sector Northern Columbia River, Vancouver, WA. Jonesport, ME New England determined that an RNA (a) Location. The following area is a would be required to enforce speed, safety zone: All navigable waters of the AGENCY: Coast Guard, DHS. wake, and beam restrictions, as well as Columbia River, surface to bottom, ACTION: Temporary final rule. provide for intermittent closure of the encompassed by a line connecting the waterway during the construction of the SUMMARY: The Coast Guard is following points beginning at the replacement bridge and subsequent establishing a temporary safety zone on shoreline at 45°37′17.7″ N/122°40′31.4″ demolition of the original structure. On the navigable waters of Moosabec W, southwest to 45°37′12.1″ N/ October 24, 2017, the Coast Guard Reach, ME within a 500-yard radius of 122°40′35.0″ W, southeast to 45°37′08.8″ published a TFR entitled ‘‘Regulated the Beals Island Bridge between N 122°40′22.1″ W, thence northeast to Navigation Area; Beals Island Bridge Jonesport, ME and Beals Island, ME. 45°37′15.0″ N/122°40′18.3″ W, and Replacement, Moosabec Reach, The Safety Zone is needed to protect along the shoreline back to the Jonesport, ME’’ in the Federal Register personnel, vessels, and the marine beginning point. (82 FR 49106) that would allow the (b) Definitions. As used in this environment from the potential hazards Coast Guard to enforce speed and wake section, designated representative created by underwater explosives restrictions and prohibit vessel traffic means any Coast commissioned, demolition of the Beals Island Bridge. through the RNA during bridge warrant, or petty officer who has been This Safety Zone prohibits persons and replacement operations on the Beals authorized by the Captain of the Port vessels from being in the safety zones Island Bridge that could pose an Columbia River (COTP) to act on his unless authorized by Sector Northern imminent hazard to persons and vessels behalf, or a Federal, State, and local New England COTP or their Designated operating in the area. This rule would officer designated by or assisting the Representative. allow the Coast Guard to enforce Captain of the Port Columbia River in DATES: This rule is effective without additional navigation restrictions and the enforcement of the safety zone. actual notice from September 2, 2020 prohibit vessel traffic during drilling, (c) Regulations. (1) Under the general through 31 October 2020. For the blasting, and dredging operations in safety zone regulations in subpart C of purposes of enforcement, actual notice support of the bridge replacement this part, you may not enter the safety will be used from 17 August 2020 project. zone described in paragraph (a) of this through September 2, 2020. In June 2020 the project manager for section unless authorized by the COTP ADDRESSES: To view documents the Beals Island Bridge notified Coast or the COTP’s designated representative. mentioned in this preamble as being Guard that the demolition plan had (2) Vessel operators desiring to enter available in the docket, go to https:// been revised to include underwater or operate within the safety zone may www.regulations.gov, type USCG–2020– explosive demolition of the old Beals contact the COTP’s on-scene designated 0447 in the ‘‘SEARCH’’ box and click Island Bridge. The contractor requested representative by calling 503–209–2468 ‘‘SEARCH.’’ Click on Open Docket the Coast Guard create a safety zone to or the Sector Columbia River Command Folder on the line associated with this prohibit vessels and persons within a Center on Channel 16 VHF–FM. Those rule. 250-foot radius of the old bridge and
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any vessel movement within 500-yards expect the blasting to be completed by B. Impact on Small Entities during each blasting event in October 11, 2020, we are publishing this The Regulatory Flexibility Act of accordance with 29 CFR 1926.912. rulemaking to be effective, and 1980, 5 U.S.C. 601–612, as amended, During this approximate 60-minute enforceable, through October 31, 2020 requires Federal agencies to consider window, no vessels or persons will be in case the project is delayed due to the potential impact of regulations on authorized within the safety zone unless unforeseen circumstances. small entities during rulemaking. The authorized by the Sector Northern New The duration of the zone is intended term ‘‘small entities’’ comprises small England COTP or Designated to protect personnel, vessels, and the businesses, not-for-profit organizations Representative. marine environment in these navigable The Coast Guard is issuing this that are independently owned and waters while the old Beals Island Bridge operated and are not dominant in their temporary rule without prior notice and is demolished for eventual removal. No opportunity to comment pursuant to fields, and governmental jurisdictions vessel or person will be permitted to authority under section 4(a) of the with populations of less than 50,000. enter the safety zone without obtaining Administrative Procedure Act (APA) (5 The Coast Guard certifies under 5 U.S.C. permission from the Sector Northern U.S.C. 553(b)). This provision 605(b) that this rule will not have a New England COTP or designated authorizes an agency to issue a rule significant economic impact on a representative. without prior notice and opportunity to substantial number of small entities. comment when the agency for good The Coast Guard will notify the While some owners or operators of cause finds that those procedures are public and local mariners of this safety vessels intending to transit the safety ‘‘impracticable, unnecessary, or contrary zone through the Local Notice to zone may be small entities, for the to the public interest.’’ Under 5 U.S.C. Mariners and/or Broadcast Notice to reasons stated in section V.A above, this 553(b)(B), the Coast Guard finds that Mariners via VHF–FM marine channel rule will not have a significant good cause exists for not publishing a 16 in advance of any scheduled economic impact on any vessel owner notice of proposed rulemaking (NPRM) enforcement period. or operator. Under section 213(a) of the Small with respect to this rule because the V. Regulatory Analyses schedule for the demolition of old Beals Business Regulatory Enforcement Island Bridge was only recently We developed this rule after Fairness Act of 1996 (Pub. L. 104–121), finalized and timely action is needed to considering numerous statutes and we want to assist small entities in respond to the potential safety hazards Executive orders related to rulemaking. understanding this rule. If the rule associated with this demolition project. Below we summarize our analyses would affect your small business, It is impracticable and contrary to the based on a number of these statutes and organization, or governmental public interest to publish an NPRM in Executive orders, and we discuss First jurisdiction and you have questions order to establish this safety zone by 17 Amendment rights of protestors. concerning its provisions or options for August 2020 to allow for the timely compliance, please call or email the demolition of old Beals Island Bridge A. Regulatory Planning and Review person listed in the FOR FURTHER INFORMATION CONTACT section. and promote the safety of the public. Executive Orders 12866 and 13563 Small businesses may send comments direct agencies to assess the costs and III. Legal Authority and Need for Rule on the actions of Federal employees benefits of available regulatory The Coast Guard is issuing this rule who enforce, or otherwise determine alternatives and, if regulation is under authority in 46 U.S.C. 70034. The compliance with, Federal regulations to necessary, to select regulatory COTP has determined that potential the Small Business and Agriculture approaches that maximize net benefits. hazards associated with underwater Regulatory Enforcement Ombudsman Executive Order 13771 directs agencies explosives demolition will be a safety and the Regional Small Business to control regulatory costs through a concern for anyone within a 500-yard Regulatory Fairness Boards. The budgeting process. This rule has not radius of the old Beals Island Bridge. Ombudsman evaluates these actions been designated a ‘‘significant This rule is needed to protect personnel, annually and rates each agency’s regulatory action,’’ under Executive vessels, and the marine environment in responsiveness to small business. If you Order 12866. Accordingly, this rule has the navigable waters within the safety wish to comment on actions by not been reviewed by the Office of zone during underwater explosives employees of the Coast Guard, call 1– Management and Budget (OMB), and demolition of the old Beals Island 888–REG–FAIR (1–888–734–3247). The pursuant to OMB guidance it is exempt Bridge. Coast Guard will not retaliate against from the requirements of Executive small entities that question or complain IV. Discussion of the Rule Order 13771. about this rule or any policy or action This rule establishes a safety zone This regulatory action determination of the Coast Guard. from 08:00 a.m. August 17, 2020 is based on the size, location, time of through 11:59 p.m. October 31, 2020. day, and the duration of enforcement of C. Collection of Information Currently there are six blast events the safety zone. Although vessel traffic This rule will not call for a new requiring closures lasting approximately will not be able to safely transit around collection of information under the one hour each. The zone will only be this safety zone when enforced, the zone Paperwork Reduction Act of 1995 (44 enforced during the periods of will only be enforced during the U.S.C. 3501–3520). demolition. Notification of enforcement blasting events. As a result, enforcement and blasting will be made with as much of the safety zone will be limited in D. Federalism and Indian Tribal advanced notice as possible with no less duration, likely only one hour during Governments than 48 hours. The safety zone covers each of the six events. Additionally, the A rule has implications for federalism all navigable waters of the Moosabec Coast Guard will issue Broadcast Notice under Executive Order 13132, Reach, within approximately 500 yards to Mariners via VHF–FM marine Federalism, if it has a substantial direct of any portion of the old Beals Island channel 16 about the zone and the rule effect on the States, on the relationship Bridge approximate position 44°31′28″ allows vessels to seek permission to between the National Government and N, 067°36′53″ W (NAD 83). Although we enter the zone. the States, or on the distribution of
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power and responsibilities among the coordinate protest activities so that your Guard Sector Northern New England various levels of government. We have message can be received without Command Center). analyzed this rule under that Order and jeopardizing the safety or security of (d) Regulations. (1) The general have determined that it is consistent people, places or vessels. regulations contained in 33 CFR 165.23, with the fundamental federalism as well as the following regulations, List of Subjects in 33 CFR Part 165 principles and preemption requirements apply. described in Executive Order 13132. Harbors, Marine safety, Navigation (2) No person or vessel is allowed Also, this rule does not have tribal (water) Reporting and recordkeeping within the safety zones unless implications under Executive Order requirements, Security measures, authorized by the cognizant Captain of 13175, Consultation and Coordination Waterways. the Port or their Designated with Indian Tribal Governments, For the reasons discussed in the Representative. because it does not have a substantial preamble, the Coast Guard amends 33 (3) During periods of enforcement, all direct effect on one or more Indian CFR part 165 as follows: persons and vessels must comply with tribes, on the relationship between the all orders and directions from the COTP Federal Government and Indian tribes, PART 165—REGULATED NAVIGATION or a COTP’s designated representative. or on the distribution of power and AREAS AND LIMITED ACCESS AREAS (4) During periods of enforcement, responsibilities between the Federal upon being hailed by a U.S. Coast Guard ■ Government and Indian tribes. 1. The authority citation for part 165 vessel by siren, radio, flashing light, or continues to read as follows: other means, the operator of the vessel E. Unfunded Mandates Reform Act Authority: 46 U.S.C. 70034, 70051; 33 CFR must proceed as directed. The Unfunded Mandates Reform Act 1.05–1, 6.04–1, 6.04–6, and 160.5; Dated: August 13, 2020. of 1995 (2 U.S.C. 1531–1538) requires Department of Homeland Security Delegation B.J. LeFebvre, Federal agencies to assess the effects of No. 0170.1. Captain, U.S. Coast Guard, Captain of the their discretionary regulatory actions. In ■ 2. Add § 165.T01–0447 to read as Port, Sector Northern New England. particular, the Act addresses actions follows: that may result in the expenditure by a [FR Doc. 2020–18196 Filed 9–1–20; 8:45 am] State, local, or tribal government, in the § 165.T01–0447 Safety Zone; Beals Island BILLING CODE 9110–04–P aggregate, or by the private sector of Bridge Demolition, Moosabec Reach, $100,000,000 (adjusted for inflation) or Jonesport, ME. DEPARTMENT OF HOMELAND more in any one year. Though this rule (a) Location. The following area is a SECURITY will not result in such an expenditure, safety zone: All waters from surface to bottom of Moosabec Reach within 500- we do discuss the effects of this rule Coast Guard elsewhere in this preamble. yards of the old Beals Island Bridge, at approximate position 44°31′28″ N, 33 CFR Part 165 F. Environment 067°36′53″ W (NAD 83). We have analyzed this rule under (b) Definitions. The following [Docket Number USCG–2020–0545] definitions apply to this section: Department of Homeland Security RIN 1625–AA00 Directive 023–01, Rev. 1, associated (1) Designated Representative. A implementing instructions, and ‘‘Designated Representative’’ is any Safety Zones; Delaware River Environmental Planning COMDTINST Coast Guard Commissioned, Warrant or Dredging, Marcus Hook, PA 5090.1 (series), which guide the Coast Petty Officer who has been designated Guard in complying with the National by the Captain of the Port, Sector AGENCY: Coast Guard, DHS. Environmental Policy Act of 1969 (42 Northern New England (COTP), to act ACTION: Interim final rule; request for U.S.C. 4321–4370f), and have on his or her behalf. The Designated comments. determined that this action is one of a Representative may be on an official SUMMARY: The Coast Guard is category of actions that do not patrol vessel or may be on shore and establishing temporary safety zones on individually or cumulatively have a will communicate with vessels via the waters of the Delaware River in significant effect on the human VHF–FM radio or loudhailer. In portions of Marcus Hook Range and environment. This rule involves a safety addition, members of the Coast Guard Anchorage 7 off Marcus Hook Range. zone lasting approximately 60 minutes Auxiliary may be present to inform The safety zones will temporarily during six separate blasting events that vessel operators of this regulation. restrict vessel traffic from transiting or will prohibit entry within 500-yards of (2) Official patrol vessels. Official anchoring in portions of the Delaware the old Beals Island Bridge. It is patrol vessels may consist of any Coast River while maintenance dredging is categorically excluded from further Guard, Coast Guard Auxiliary, state, or being conducted within the Delaware review under paragraph L60(a) of local law enforcement vessels assigned River. The safety zones are needed to Appendix A, Table 1 of DHS Instruction or approved by the COTP. protect personnel, vessels and the Manual 023–01–001–01, Rev. 1. A (c) Enforcement Periods. (1) This marine environment from hazards Record of Environmental Consideration safety zone is effective from August 17, created by dredging operations. Entry of supporting this determination is 2020 to October 31, 2020 but will only vessels or persons into these zones is available in the docket. For instructions be enforced when bridge blasting prohibited unless specifically on locating the docket, see the operations are in progress. authorized by the Captain of the Port ADDRESSES section of this preamble. (2) The Coast Guard will utilize marine broadcasts and local notice to (COTP) or his designated G. Protest Activities mariners to notify the public of the time representatives. The Coast Guard respects the First and duration that the safety zone will be DATES: This interim rule is effective Amendment rights of protesters. enforced. Violations of this safety zone without actual notice from September 2, Protesters are asked to call or email the may be reported to the COTP or the 2020 through October 15, 2020. For the person listed in the FOR FURTHER Designated Representative via VHF purposes of enforcement, actual notice INFORMATION CONTACT section to channel 16 or (207) 741–5465 (Coast will be used from August 25, 2020,
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through September 2, 2020. Comments days after publication in the Federal vessel traffic. Vessels should avoid and related material must be received by Register. Delaying the effective date of meeting in these areas where one side the Coast Guard on or before October 2, this rule would be impracticable and of the main navigational channel is 2020. contrary to the public interest because open and proceed per this rule and the ADDRESSES: You may submit comments immediate action is needed to mitigate Rules of the Road (33 CFR subchapter identified by docket number USCG– the potential safety hazards associated E). 2020–0545 using the Federal with dredging operations in these (2) Safety zone two includes all the eRulemaking Portal at https:// locations. waters of Anchorage 7 off Marcus Hook www.regulations.gov. See the ‘‘Public We are soliciting comments on this Range, as described in 33 CFR Participation and Request for rulemaking. If the Coast Guard 110.157(a)(8). Vessels wishing to anchor Comments’’ portion of the determines that changes to the rule are in Anchorage 7 off Marcus Hook Range SUPPLEMENTARY INFORMATION section for necessary we will publish a subsequent while this rule is in effect must obtain further instructions on submitting rulemaking document in the Federal permission from the COTP at least 24 comments. Register. hours in advance by calling (215) 271– 4807. Vessels requesting permission to To view documents mentioned in this III. Legal Authority and Need for Rule preamble as being available in the anchor within Anchorage 7 off Marcus docket, go to https:// The Coast Guard is issuing this rule Hook must be at least 650 feet in overall www.regulations.gov, type USCG–2020– under authority in 46 U.S.C. 70034 length. The COTP will permit, at 0545 in the ‘‘SEARCH’’ box and click (previously 33 U.S.C. 1231). The COTP minimum, only one vessel to anchor at ‘‘SEARCH.’’ Click on Open Docket has determined that there are potential a time on a ‘‘first-come, first-served’’ Folder on the line associated with this hazards associated with dredging basis. Vessels will only be allowed to rule. operations. The purpose of this anchor for a 12 hour period. Vessels that rulemaking is to ensure the safety of FOR FURTHER INFORMATION CONTACT: If require an examination by the Public personnel, vessels, and the marine Health Service, Customs, or Immigration you have questions on this rule, call or environment within a 250-yard radius of email Petty Officer Edmund Ofalt, authorities will be directed to an dredging operations and all associated anchorage by the COTP for the required Waterways Management Branch, U.S. pipeline and equipment. Coast Guard Sector Delaware Bay; inspection. Vessels are encouraged to telephone (215) 271–4889, email IV. Discussion of the Rule use Anchorage 9 near the entrance to Mantua Creek, Anchorage 10 at Naval [email protected]. This rule establishes safety zones Base, Philadelphia, and Anchorage 6 off SUPPLEMENTARY INFORMATION: from August 25, 2020, through October Deepwater Point Range as alternative 15, 2020. The safety zones are necessary I. Table of Abbreviations anchorages. to facilitate annual maintenance Preference is being given to vesesls at CFR Code of Federal Regulations dredging of the Delaware River in the DHS Department of Homeland Security least 650 feet in length in the Anchorage vicinity of Marcus Hook Range and 7 while this rule is in effect because FR Federal Register Anchorage 7 off Marcus Hook Range (as NPRM Notice of proposed rulemaking vessels of this size are limited in their § Section described in 33 CFR 110.157(a)(8)). ability to utilize other anchorages due to U.S.C. United States Code Dredging will most likely be conducted draft. The depth of Anchorage 7 with the dredge ESSEX, though other provides an acceptable depth for large II. Background Information and dredges may be used, along with Regulatory History vessels to bunker and stage for facility associated dredge pipeline and boosters. arrival. Smaller vessels maintain a host The Coast Guard is issuing this The pipeline consists of a combination of other options to include, but are not interim rule without prior notice and of floating hoses immediately behind limited to Anchorage 9 and 10 as opportunity to comment pursuant to the dredge ESSEX and submerged recommended above. authority under section 4(a) of the pipeline leading to upland disposal Entry into, transiting, or anchoring Administrative Procedure Act (APA) (5 areas. Due to the hazards related to within safety zone one is prohibited U.S.C. 553(b)). This provision dredging operations, the associated unless vessels obtain permission from authorizes an agency to issue a rule pipeline and the location of submerged the COTP or make satisfactory passing without prior notice and opportunity to pipeline, safety zones are being arrangements with the operating dredge comment when the agency for good established in the following areas: per this rule and the Rules of the Road cause finds that those procedures are (1) Safety zone one includes all (33 CFR subchapter E). The COTP may ‘‘impracticable, unnecessary, or contrary navigable waters within 250 yards of the issue updates regarding the vessel and to the public interest.’’ Under 5 U.S.C. dredge displaying lights and shapes for equipment being utilized for these 553(b)(B), the Coast Guard finds that vessels restricted in ability to maneuver dredging operations via Marine Safety good cause exists for not publishing a as described in 33 CFR 83.27 and all Information Bulletin and Broadcast notice of proposed rulemaking (NPRM) related dredge equipment when the Notice to Mariners. with respect to this rule because it is dredge is operating in Marcus Hook impracticable and contrary to the public Range, and Anchorage 7. This safety V. Regulatory Analyses interest. There is insufficient time to zone is being established for the We developed this rule after allow for a reasonable comment period duration of the maintenance project. considering numerous statutes and prior to the start date for dredging Vessels requesting to transit the safety Executive orders related to rulemaking. operations. The rule must be in force by zone must contact the dredge on VHF Below we summarize our analyses August 25, 2020, to serve its purpose of channel 13 or 16 at least 1 hour prior based on a number of these statutes and ensuring the safety of the general public to arrival to arrange safe passage. At Executive orders, and we discuss First from hazards associated with dredging least one side of the main navigational Amendment rights of protestors. operations. channel will be kept clear for safe Under 5 U.S.C. 553(d)(3), the Coast passage of vessels in the vicinity of the A. Regulatory Planning and Review Guard finds that good cause exists for safety zone. At no time will the entire Executive Orders 12866 and 13563 making this rule effective less than 30 main navigational channel be closed to direct agencies to assess the costs and
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benefits of available regulatory Under section 213(a) of the Small particular, the Act addresses actions alternatives and, if regulation is Business Regulatory Enforcement that may result in the expenditure by a necessary, to select regulatory Fairness Act of 1996 (Pub. L. 104–121), State, local, or tribal government, in the approaches that maximize net benefits. we want to assist small entities in aggregate, or by the private sector of Executive Order 13771 directs agencies understanding this rule. If the rule $100,000,000 (adjusted for inflation) or to control regulatory costs through a would affect your small business, more in any one year. Though this rule budgeting process. This rule has not organization, or governmental will not result in such an expenditure, been designated a ‘‘significant jurisdiction and you have questions we do discuss the effects of this rule regulatory action,’’ under Executive concerning its provisions or options for elsewhere in this preamble. Order 12866. Accordingly, this rule has compliance, please call or email the F. Environment not been reviewed by the Office of person listed in the FOR FURTHER Management and Budget (OMB), and INFORMATION CONTACT section. We have analyzed this rule under pursuant to OMB guidance it is exempt Small businesses may send comments Department of Homeland Security from the requirements of Executive on the actions of Federal employees Directive 023–01, Rev. 1, associated Order 13771. who enforce, or otherwise determine implementing instructions, and This regulatory action determination compliance with, Federal regulations to Environmental Planning COMDTINST is based on size, location, duration, and the Small Business and Agriculture 5090.1 (series), which guide the Coast traffic management of the safety zones. Regulatory Enforcement Ombudsman Guard in complying with the National The safety zones will be enforced in an and the Regional Small Business Environmental Policy Act of 1969 (42 area and in a manner that does not Regulatory Fairness Boards. The U.S.C. 4321–4370f), and have conflict with transiting commercial and Ombudsman evaluates these actions determined that this action is one of a recreational traffic. At least one side of annually and rates each agency’s category of actions that do not the main navigational channel will be responsiveness to small business. If you individually or cumulatively have a open for vessels to transit at all times. wish to comment on actions by significant effect on the human Moreover, the Coast Guard will work in employees of the Coast Guard, call 1– environment. This rule involves safety coordination with the pilots to ensure 888–REG–FAIR (1–888–734–3247). The zones to protect waterway users that vessel traffic can transit the area safely. Coast Guard will not retaliate against would prohibit entry within 250 yards of dredging operations and will close Although this regulation will restrict small entities that question or complain only one side of the main navigation access to regulated areas, the effect of about this rule or any policy or action channel. Vessels can request permission this rule will not be significant because of the Coast Guard. to enter the channel. It is categorically there are a number of alternate C. Collection of Information excluded from further review under anchorages available for vessels to This rule will not call for a new paragraph L[60a] of Appendix A, Table anchor. Furthermore, vessels may collection of information under the 1 of DHS Instruction Manual 023–01– transit through the safety zones with the Paperwork Reduction Act of 1995 (44 001–01, Rev. 1. A Record of permission of the COTP or make U.S.C. 3501–3520). Environmental Consideration satisfactory passing arrangements with supporting this determination is the dredge ESSEX, or other dredge(s) D. Federalism and Indian Tribal available in the docket. For instructions that may be used in accordance with Governments on locating the docket, see the this rule and the Rules of the Road (33 A rule has implications for federalism ADDRESSES section of this preamble. CFR subchapter E). The Coast Guard under Executive Order 13132, will notify the maritime public about Federalism, if it has a substantial direct G. Protest Activities the safety zones through maritime effect on the States, on the relationship The Coast Guard respects the First advisories, allowing mariners to alter between the National Government and Amendment rights of protesters. their plans accordingly. the States, or on the distribution of Protesters are asked to call or email the B. Impact on Small Entities power and responsibilities among the person listed in the FOR FURTHER various levels of government. We have INFORMATION CONTACT section to The Regulatory Flexibility Act of analyzed this rule under that order and coordinate protest activities so that your 1980, 5 U.S.C. 601–612, as amended, have determined that it is consistent message can be received without requires Federal agencies to consider with the fundamental federalism jeopardizing the safety or security of the potential impact of regulations on principles and preemption requirements people, places or vessels. small entities during rulemaking. The described in Executive Order 13132. term ‘‘small entities’’ comprises small Also, this rule does not have tribal VI. Public Participation and Request for businesses, not-for-profit organizations implications under Executive Order Comments that are independently owned and 13175, Consultation and Coordination We view public participation as operated and are not dominant in their with Indian Tribal Governments, essential to effective rulemaking, and fields, and governmental jurisdictions because it does not have a substantial will consider all comments and material with populations of less than 50,000. direct effect on one or more Indian received during the comment period. The Coast Guard certifies under 5 U.S.C. tribes, on the relationship between the Your comment can help shape the 605(b) that this rule will not have a Federal Government and Indian tribes, outcome of this rulemaking. If you significant economic impact on a or on the distribution of power and submit a comment, please include the substantial number of small entities. responsibilities between the Federal docket number for this rulemaking, While some owners or operators of Government and Indian tribes. indicate the specific section of this vessels intending to transit the safety document to which each comment zones may be small entities, for the E. Unfunded Mandates Reform Act applies, and provide a reason for each reasons stated in section V.A above, this The Unfunded Mandates Reform Act suggestion or recommendation. rule will not have a significant of 1995 (2 U.S.C. 1531–1538) requires We encourage you to submit economic impact on any vessel owner Federal agencies to assess the effects of comments through the Federal or operator. their discretionary regulatory actions. In eRulemaking Portal at https://
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www.regulations.gov. If your material 110.157(a)(8) and depicted on U.S. ENVIRONMENTAL PROTECTION cannot be submitted using https:// Nautical Chart 12312. AGENCY www.regulations.gov, call or email the (b) Definitions. As used in this 40 CFR Part 52 person in the FOR FURTHER INFORMATION section, designated representative CONTACT section of this document for means any Coast Guard commissioned, [EPA–R06–OAR–2018–0716; FRL–10012– alternate instructions. warrant, or petty officer who has been 88–Region 6] We accept anonymous comments. All authorized by the Captain of the Port to comments received will be posted Air Plan Approval; Texas; Beaumont- assist with enforcement of the safety without change to https:// Port Arthur Area Second Maintenance www.regulations.gov and will include zone described in paragraph (a) of this Plan for 1997 Ozone National Ambient any personal information you have section. Air Quality Standards provided. For more about privacy and (c) Regulations. (1) Entry into or AGENCY: submissions in response to this transiting within the safety zone one is Environmental Protection document, see DHS’s Correspondence prohibited unless vessels obtain Agency (EPA). System of Records notice (84 FR 48645, permission from the Captain of the Port ACTION: Final rule. September 26, 2018). via VHF–FM channel 16 or 215–271– SUMMARY: Pursuant to the Federal Clean Documents mentioned in this interim 4807, or make satisfactory passing Air Act (CAA or the Act), the final rule as being available in the arrangements via VHF–FM channel 13 Environmental Protection Agency (EPA) docket, and all public comments, will or 16 with the operating dredge per this is approving a revision to the Texas be in our online docket at https:// section and the rules of the road (33 State Implementation Plan (SIP). The www.regulations.gov and can be viewed CFR subchapter E). Vessels requesting to EPA is approving a second ten-year by following that website’s instructions. transit shall contact the operating maintenance plan for maintaining the List of Subjects in 33 CFR Part 165 dredge via VHF–FM channel 13 or 16 at 1997 8-hour ozone National Ambient least 1 hour prior to arrival. Air Quality Standards (NAAQS or Harbors, Marine safety, Navigation standard) through 2032 in the (water), Reporting and recordkeeping (2) Vessels desiring to anchor in safety Beaumont-Port Arthur (BPA) area. requirements, Security measures, zone two, Anchorage 7 off Marcus Hook Waterways. Range, must obtain permission from the DATES: This rule is effective on October 2, 2020. For the reasons discussed in the Captain of the Port (COTP) at least 24 preamble, the Coast Guard amends 33 hours in advance by calling (215) 271– ADDRESSES: The EPA has established a CFR part 165 as follows: 4807. The COTP will permit, at docket for this action under Docket ID minimum, one vessel at a time to anchor No. EPA–R06–OAR–2018–0716. All PART 165—REGULATED NAVIGATION on a ‘‘first-come, first-served’’ basis. documents in the docket are listed on AREAS AND LIMITED ACCESS AREAS Vessels will only be allowed to anchor the https://www.regulations.gov for a 12 hour period. Vessels that website. Although listed in the index, ■ 1. The authority citation for part 165 require an examination by the Public some information is not publicly continues to read as follows: Health Service, Customs, or Immigration available, e.g., Confidential Business Authority: 46 U.S.C. 70034, 70051; 33 CFR authorities will be directed to an Information or other information whose 1.05–1, 6.04–1, 6.04–6, and 160.5; anchorage for the required inspection by disclosure is restricted by statute. Department of Homeland Security Delegation the COTP. Certain other material, such as No. 0170.1. copyrighted material, is not placed on (3) Vessels desiring to anchor in safety the internet. Publicly available docket ■ 2. Add § 165.T05–0545 to read as zone two, Anchorage 7 off Marcus Hook materials are available electronically follows: Range, must be at least 650 feet in through https://www.regulations.gov. § 165.T05–0545 Safety Zones, Delaware length overall. FOR FURTHER INFORMATION CONTACT: Jeff River Dredging; Marcus Hook, PA. (4) This section applies to all vessels Riley, EPA Region 6 Office, (a) Location. The following areas are except those engaged in the following Infrastructure and Ozone Section, 214– safety zones: operations: Enforcement of laws, service 665–8542, [email protected]. Out of (1) Safety zone one includes all waters of aids to navigation, and emergency an abundance of caution for members of within 250 yards of the dredge response. the public and our staff, the EPA Region 6 office will be closed to the public to displaying lights and shapes for vessels (d) Enforcement. The U.S. Coast restricted in ability to maneuver as reduce the risk of transmitting COVID– Guard may be assisted by Federal, state, described in 33 CFR 83.27, as well as all 19. Please call or email the contact and local agencies in the patrol and related dredge equipment, while the listed above if you need alternative enforcement of the zone. dredge is operating in Marcus Hook access to material indexed but not Range. For enforcement purposes (e) Enforcement period. This section provided in the docket. Marcus Hook Range includes all will be enforced from August 25, 2020, SUPPLEMENTARY INFORMATION: navigable waters of the Delaware River through October 15, 2020, unless Throughout this document ‘‘we,’’ ‘‘us,’’ shoreline to shoreline, bound by a line cancelled earlier by the Captain of the and ‘‘our’’ means the EPA. drawn perpendicular to the center line Port. I. Background of the channel at the farthest upriver Dated: August 25, 2020. point of the range to a line drawn The background for this action is Jonathan D. Theel, perpendicular to the center line of the discussed in detail in our June 8, 2020 channel at the farthest downriver point Captain, U.S. Coast Guard, Captain of the Proposal (85 FR 35041, ‘‘Proposal’’). In of the range. Port, Delaware Bay. that document we proposed to approve, (2) Safety zone two includes all the [FR Doc. 2020–19328 Filed 9–1–20; 8:45 am] as a revision to the Texas SIP, an waters of Anchorage 7 off Marcus Hook BILLING CODE 9110–04–P updated (second) 1997 ozone NAAQS Range, as described in 33 CFR maintenance plan for the BPA area. On
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February 5, 2019, the Texas Commission developed by the National Highway or local ZEV mandates; therefore, the on Environmental Quality (TCEQ) Traffic Safety Administration (NHTSA) One National Program rulemaking also submitted the second maintenance plan and EPA to finalize updated Corporate does not affect any of the Federal mobile for the BPA area. The maintenance plan Average Fuel Economy (CAFE) and source control strategies relied upon by is designed to keep the area in greenhouse gas (GHG) emissions the State of Texas in developing the attainment of the 1997 ozone NAAQS standards for passenger cars and light BPA area’s second 10-year maintenance through the end of the second 10-year trucks and establish new standards, plan for the 1997 8-hour ozone NAAQS. maintenance period (2032). covering model years 2021 through SAFE Rule Part Two will not result in Our June 8, 2020 Proposal provided a 2026. See 85 FR 24174 (April 30, 2020). on-road emissions increases of NOX or detailed description of the revisions 1 We note that CAFE and GHG standards VOCs in the BPA area; however, there and the rationale for EPA’s proposed are separate and distinct from EPA may be some small NOX and VOC action, together with a discussion of the standards for control of criteria emissions increases in area and point opportunity to comment. The public pollutants from motor vehicles, such as source emissions due to potential comment period for the action closed on those in the Tier 3 motor vehicle increases in sales, transport and July 8, 2020. See the docket for this emission and fuel standards.2 As such, production of gasoline. As was noted by rulemaking for a copy of the public auto manufacturers must the Commenter, the maintenance plan comments received and our Proposal at simultaneously comply with unique has projected some growth in emissions 85 FR 35041 for more information. requirements under both of these sets of from these categories. Even if this We received comments on our standards, as well as any other Federal growth is slightly underestimated due to proposal from two commenters: TCEQ standards applicable to specific vehicle SAFE Rule Part Two changes or other and an anonymous citizen. Our types. The SAFE Rule Part Two does not reasons, EPA is confident that any such responses to the comments are below. weaken or affect the regulatory underestimate would be substantially framework for any of the Federal mobile II. Response to Comments less than the overall decreases in NOX source control strategies the State of and VOC emissions that are projected to Comment 1: TCEQ expressed support Texas relied upon (e.g. Tier 1, Tier 2, occur between 2014 and 2032, which of EPA’s proposed approval of the BPA and Tier 3 light-duty and medium-duty are discussed in the notice of proposed area’s second 10-year maintenance plan passenger vehicle standards; heavy-duty rulemaking for this action. under the 1997 8-hour ozone NAAQS, vehicle standards; low sulfur gasoline Contrary to the assertion that EPA is and stated its intent to withdraw from and diesel standards; National Low taking steps to roll back Federal mobile EPA’s consideration both the request to Emission Vehicle standards; and source control strategies, on January 6, redesignate the BPA area to attainment gasoline volatility standards) for 2020, the Administrator signed an for the revoked 1-hour ozone standard nitrogen oxides (NOX) and volatile Advanced Notice of Proposed and the 10-year maintenance plan for organic compound (VOC) ozone Rulemaking soliciting pre-proposal the 1-hour ozone standard. precursor emissions reductions in Response 1: EPA appreciates TCEQ’s comments on the Clean Truck Initiative developing the BPA area’s second 10- (CTI), which, if finalized, would tighten support of our June 8, 2020 Proposal, year maintenance plan for the 1997 8- NOX emissions standards for heavy-duty and informing us of their plans to hour ozone NAAQS, and therefore the withdraw the 1-hour ozone standard vehicles for the first time since 2001. state’s reliance upon these standards as Finally, we note that Texas has redesignation request and 10-year valid Federal control measures is maintenance plan for the BPA area. adopted a contingency plan, as part of appropriate for this SIP action. the maintenance plan for the BPA area, Comment 2: The Commenter argues The SAFE Rule Part Two is a to address possible future ozone air that EPA cannot approve maintenance component of a larger proposed quality problems, as required by section plans which rely on emission rulemaking 3 which also yielded the 175A of the CAA. As explained in our reductions attributable to Federal final action entitled ‘‘The Safer mobile source control strategies which June 8, 2020 Proposal, this contingency Affordable Fuel-Efficient (SAFE) plan includes such contingency EPA is actively attempting to roll back. Vehicles Rule Part One: One National Response 2: We disagree with the measures as EPA deems necessary to Program’’ (One National Program). See assure that the state will promptly assertion that EPA is taking steps to roll 84 FR 51310 (September 27, 2019). The back Federal mobile source control correct a violation of the NAAQS that One National Program negates the occurs after redesignation of the area to strategies. The Commenter appears to ability of California and states that reference the final rulemaking entitled attainment of the NAAQS. The adopted California’s zero emissions maintenance plan provides that a ‘‘The Safer Affordable Fuel Efficient vehicle (ZEV) sales mandate and/or (SAFE) Vehicles Final Rule for Model monitored and certified violation of the GHG emissions standards to enforce NAAQS triggers the requirement to Years 2021–2026’’ (SAFE Rule Part such standards. Neither the State of Two). This is the sole example given by consider, adopt, and implement the Texas nor the BPA area have adopted plan’s contingency measures. the Commenter of EPA’s alleged local tailpipe GHG emissions standards rollback of Federal mobile source Additionally, in the event that any of the Federal measures upon which the control strategies. This rulemaking was 2 See 79 FR 23414 (April 28, 2014). 3 On August 24, 2018, the EPA and the NHTSA State has relied are repealed or 1 The revision included motor vehicle emissions jointly published in the Federal Register a notice weakened, the EPA has Clean Air Act budgets (MVEBs) for the last year of the of proposed rulemaking entitled, ‘‘The Safer authority, pursuant to 42 U.S.C. maintenance plan (in this case 2032). Since EPA’s Affordable Fuel-Efficient (SAFE) Vehicles Rule for 7410(k)(5), to require a state to revise an current transportation conformity regulation Model Years 2021–2026 Passenger Cars and Light requires a regional emissions analysis only during Trucks.’’ In the NPRM, EPA proposed new GHG approved SIP if it finds that it has the time period beginning one year after a standards and NHTSA proposed new CAFE become substantially inadequate to nonattainment designation for a particular NAAQS standards for model year 2021 to 2026 light duty maintain the NAAQS. Moreover, CAA until the effective date of revocation of that NAAQS vehicles. EPA also proposed to withdraw the waiver section 175A provides the EPA (40 CFR 93.109(c)), a regional emissions analysis it had previously provided to California for that using MVEBs is not required for conformity State’s model year 2021 to 2025 GHG and ZEV discretion to require the state to submit determinations for the 1997 ozone NAAQS because standards under section 209 of the Clean Air Act. a revised SIP should the area fail to that NAAQS has been revoked (80 FR 12264). See 83 FR 42986. maintain the NAAQS.
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II. Final Action under the Regulatory Flexibility Act (5 is published in the Federal Register. We are approving the second U.S.C. 601 et seq.); This action is not a ‘‘major rule’’ as • Does not contain any unfunded maintenance plan for the 1997 ozone defined by 5 U.S.C. 804(2). mandate or significantly or uniquely NAAQS for the BPA area, submitted by Under section 307(b)(1) of the Clean affect small governments, as described TCEQ on February 5, 2019, as a revision Air Act, petitions for judicial review of in the Unfunded Mandates Reform Act to the Texas SIP. This maintenance plan this action must be filed in the United of 1995 (Pub. L. 104–4); States Court of Appeals for the is designed to keep the area in • Does not have federalism appropriate circuit by November 2, attainment of the 1997 ozone NAAQS implications as specified in Executive through the second 10-year maintenance 2020. Filing a petition for Order 13132 (64 FR 43255, August 10, reconsideration by the Administrator of period. As further explained in our 1999); Proposal, we are not approving the • this final rule does not affect the finality Is not an economically significant of this action for the purposes of judicial submitted 2032 NOX and VOC motor regulatory action based on health or vehicle emissions budgets (MVEBs) for review nor does it extend the time safety risks subject to Executive Order within which a petition for judicial transportation conformity purposes 13045 (62 FR 19885, April 23, 1997); because a regional emissions analysis • review may be filed, and shall not Is not a significant regulatory action postpone the effectiveness of such rule using MVEBs is not required for subject to Executive Order 13211 (66 FR conformity determinations for the 1997 or action. This action may not be 28355, May 22, 2001); challenged later in proceedings to ozone NAAQS because that NAAQS has • Is not subject to requirements of enforce its requirements. (See section been revoked. We are finding that the section 12(d) of the National 307(b)(2).) projected emissions inventory which Technology Transfer and Advancement reflects these budgets is consistent with Act of 1995 (15 U.S.C. 272 note) because List of Subjects in 40 CFR Part 52 maintenance of the revoked 1997 ozone application of those requirements would standard. This action is being taken Environmental protection, Air be inconsistent with the CAA; and pollution control, Incorporation by under section 175A of the Act. • Does not provide EPA with the reference, Intergovernmental relations, discretionary authority to address, as III. Statutory and Executive Order Nitrogen dioxide, Ozone, Reporting and appropriate, disproportionate human Reviews recordkeeping requirements, Volatile health or environmental effects, using organic compounds. Under the CAA, the Administrator is practicable and legally permissible required to approve a SIP submission methods, under Executive Order 12898 Dated: August 3, 2020. that complies with the provisions of the (59 FR 7629, February 16, 1994). Kenley McQueen, Act and applicable Federal regulations. In addition, the SIP is not approved Regional Administrator, Region 6. 42 U.S.C. 7410(k); 40 CFR 52.02(a). to apply on any Indian reservation land For the reasons stated in the Thus, in reviewing SIP submissions, the or in any other area where EPA or an preamble, EPA amends 40 CFR part 52 EPA’s role is to approve state choices, Indian tribe has demonstrated that a as follows: provided that they meet the criteria of tribe has jurisdiction. In those areas of the CAA. Accordingly, this action Indian country, the rule does not have PART 52—APPROVAL AND merely approves state law as meeting tribal implications and will not impose PROMULGATION OF Federal requirements and does not substantial direct costs on tribal IMPLEMENTATION PLANS impose additional requirements beyond governments or preempt tribal law as those imposed by state law. For that specified by Executive Order 13175 (65 ■ 1. The authority citation for part 52 reason, this action: FR 67249, November 9, 2000). continues to read as follows: • Is not a ‘‘significant regulatory The Congressional Review Act, 5 action’’ subject to review by the Office U.S.C. 801 et seq., as added by the Small Authority: 42 U.S.C. 7401 et seq. of Management and Budget under Business Regulatory Enforcement Subpart SS—Texas Executive Orders 12866 (58 FR 51735, Fairness Act of 1996, generally provides October 4, 1993) and 13563 (76 FR 3821, that before a rule may take effect, the ■ 2. In § 52.2270, in paragraph (e), January 21, 2011); agency promulgating the rule must amend the table ‘‘EPA Approved • Is not an Executive Order 13771 (82 submit a rule report, which includes a Nonregulatory Provisions and Quasi- FR 9339, February 2, 2017) regulatory copy of the rule, to each House of the Regulatory Measures in the Texas SIP’’ action because SIP approvals are Congress and to the Comptroller General by adding an entry for ‘‘Beaumont-Port exempted under Executive Order 12866; of the United States. EPA will submit a Arthur Second 10-Year Maintenance • Does not impose an information report containing this action and other Plan for the 1997 8-hour Ozone collection burden under the provisions required information to the U.S. Senate, Standard.’’ at the end of the table to read of the Paperwork Reduction Act (44 the U.S. House of Representatives, and as follows: U.S.C. 3501 et seq.); the Comptroller General of the United • Is certified as not having a States prior to publication of the rule in § 52.2270 Identification of plan. significant economic impact on a the Federal Register. A major rule * * * * * substantial number of small entities cannot take effect until 60 days after it (e) * * *
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EPA APPROVED NONREGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE TEXAS SIP
State Applicable geographic or submittal/ Name of SIP provision nonattainment area effective EPA approval date Comments date
******* Beaumont-Port Arthur Second 10-Year Maintenance Hardin, Jefferson and Or- 2/5/2019 9/2/2020, [Insert Federal Plan for the 1997 8-hour Ozone Standard. ange Counties. Register citation].
* * * * * copyrighted material, is not placed on for the 2015 8-hour ozone NAAQS to [FR Doc. 2020–17228 Filed 9–1–20; 8:45 am] the internet and will be publicly EPA no later than October 1, 2018.1 BILLING CODE 6560–50–P available only in hard copy form. As explained in a notice of proposed Publicly available docket materials can rulemaking (NPRM) published on July either be retrieved electronically via 6, 2020 (85 FR 40165), Kentucky cites to ENVIRONMENTAL PROTECTION www.regulations.gov or in hard copy at several regulations 2 to demonstrate that AGENCY the Air Regulatory Management Section, their respective SIPs meet the PSD- Air Planning and Implementation related requirements of sections 40 CFR Part 52 Branch, Air and Radiation Division, 110(a)(2)(C), 110(a)(2)(D)(i)(II) (Prong [EPA–R04–OAR–2019–0217; FRL–10013– U.S. Environmental Protection Agency, 3),3 110(a)(2)(J), and 110(a)(2)(K). In 28–Region 4] Region 4, 61 Forsyth Street SW, Atlanta, addition to the regulations approved Georgia 30303–8960. EPA requests that into the SIP, a state may also rely on Air Plan Approvals; KY; Prevention of if at all possible, you contact the person EPA’s January 17, 2017 (82 FR 5182), Significant Deterioration and Modeling listed in the FOR FURTHER INFORMATION final rulemaking entitled, ‘‘Revisions to Infrastructure Requirements for 2015 CONTACT section to schedule your the Guideline on Air Quality Models: Ozone NAAQS inspection. The Regional Office’s Enhancements to the AERMOD AGENCY: Environmental Protection official hours of business are Monday Dispersion Modeling System and Agency (EPA). through Friday 8:30 a.m. to 4:30 p.m., Incorporation of Approaches To Address Ozone and Fine Particulate ACTION: Final rule. excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Matter’’ (also referred to as the 2017 4 SUMMARY: The Environmental Protection Andres Febres, Air Regulatory Guideline) to satisfy the modeling Agency (EPA) is taking final action to Management Section, Air Planning and requirements of Section 110(a)(2)(K). On approve portions of the Kentucky Implementation Branch, Air and February 4, 2020, the Commonwealth of infrastructure State Implementation Radiation Division, U.S. Environmental Kentucky submitted a letter to EPA to Plan (SIP) submission for the 2015 8- Protection Agency, Region 4, 61 Forsyth demonstrate that its existing SIP- hour ozone National Ambient Air Street SW, Atlanta, Georgia 30303–8960. approved regulations provide the state Quality Standards (NAAQS) submitted The telephone number is (404) 562– with the authority to integrate and implement the requirements and to EPA in a letter dated January 11, 8966. Mr. Febres can also be reached via recommendations of the current version 2019. Whenever EPA promulgates a new electronic mail at febres- of EPA’s 2017 Guideline. In its February or revised NAAQS, the Clean Air Act [email protected]. 4, 2020, letter, the Commonwealth (CAA or Act) requires that each state SUPPLEMENTARY INFORMATION: adopt and submit a SIP submission to clarified that, pursuant to 401 KAR establish that the state’s SIP meets I. Background and Overview 50:040 and 401 KAR 51:017, the Commonwealth has the authority to use infrastructure requirements for the On October 1, 2015, EPA promulgated implementation, maintenance, and revised primary and secondary NAAQS enforcement of each such NAAQS. 1 In infrastructure SIP submissions, states for ozone, revising the 8-hour ozone generally certify evidence of compliance with Specifically, EPA is taking final action standards from 0.075 parts per million sections 110(a)(1) and (2) of the CAA through a to approve portions of the Kentucky (ppm) to a new more protective level of combination of state regulations and statutes, some infrastructure SIP submission that of which have been incorporated into the SIP. In 0.070 ppm. See 80 FR 65292 (October addition, certain federally-approved, non-SIP address the prevention of significant 26, 2015). Pursuant to section 110(a)(1) regulations may also be appropriate for deterioration (PSD) and modeling of the CAA, states are required to submit demonstrating compliance with sections 110(a)(1) requirements for the 2015 8-hour ozone SIP revisions meeting the applicable and (2). NAAQS. 2 Kentucky’s January 11, 2019, infrastructure SIP requirements of section 110(a)(2) within submission cites several SIP-approved regulations DATES: This rule is effective October 2, three years after promulgation of a new under Chapters 50 and 51, including the following: 2020. or revised NAAQS or within such 401 KAR 51:010,1 Attainment status designations; ADDRESSES: EPA has established a shorter period as EPA may prescribe. 401 KAR 51:017, Prevention of significant deterioration of air quality; and 401 KAR 50:040, docket for this action under Docket Section 110(a)(2) requires states to Air quality models, to meet the PSD program Identification No. EPA–R04–OAR– address basic SIP elements such as requirements of sections 2019–0217. All documents in the docket requirements for monitoring, basic 110(a)(2)(C),110(a)(2)(D)(i)(II) (Prong 3), 110(a)(2)(J), are listed on the www.regulations.gov program requirements, and legal and 110(a)(2)(K). 3 Section 110(a)(2)(D)(i)(II) contains a provision website. Although listed in the index, authority that are designed to assure that prohibits emissions activity in one state from some information is not publicly attainment and maintenance of the interfering with measures required to prevent available, i.e., Confidential Business NAAQS. This particular type of SIP is significant deterioration of air quality in another Information or other information whose commonly referred to as an state, which is commonly referred to as ‘‘prong 3.’’ 4 EPA’s Guideline on Air Quality Models is disclosure is restricted by statute. ‘‘infrastructure SIP.’’ States were codified at 40 CFR part 51, Appendix W and is Certain other material, such as required to submit such SIP revisions generically referred to as Guideline herein.
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alternative modeling, and that modeling 110(a)(2)(K). All other outstanding methods, under Executive Order 12898 based on the Guideline, as published on applicable infrastructure requirements (59 FR 7629, February 16, 1994). January 17, 2017, is the most for this SIP submission have been or The SIPs subject to these actions are 5 appropriate. will be addressed in separate not approved to apply on any Indian EPA has evaluated Kentucky’s rulemakings. reservation land or in any other area January 11, 2019, submittal 6 and the where EPA or an Indian tribe has February 4, 2020, letter and is making III. Statutory and Executive Order demonstrated that a tribe has the determination that Kentucky has Reviews jurisdiction. In those areas of Indian demonstrated that it has the authority to Under the CAA, the Administrator is country, the rule does not have tribal use the 2017 Guideline, and notes that required to approve a SIP submission implications as specified by Executive the February 4, 2020, letter includes KY that complies with the provisions of the Order 13175 (65 FR 67249, November 9, DAQ’s determination that the 2017 Act and applicable Federal regulations. 2000), nor will it impose substantial Guideline is most appropriate for use. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). direct costs on tribal governments or Accordingly, EPA is taking final action Thus, in reviewing SIP submissions, preempt tribal law. to approve Kentucky’s use of the 2017 EPA’s role is to approve state choices, Guideline as outlined in KY DAQ’s provided that they meet the criteria of The Congressional Review Act, 5 February 4, 2020, letter and making a the CAA. These actions merely approve U.S.C. 801 et seq., as added by the Small finding that Kentucky’s infrastructure state law as meeting Federal Business Regulatory Enforcement SIP submission demonstrates that new requirements and do not impose Fairness Act of 1996, generally provides major sources and major modifications additional requirements beyond those that before a rule may take effect, the in areas of the Commonwealth imposed by state law. For that reason, agency promulgating the rule must designated attainment or unclassifiable these actions: submit a rule report, which includes a for the specified NAAQS are subject to • Are not significant regulatory copy of the rule, to each House of the a federally-approved PSD permitting actions subject to review by the Office Congress and to the Comptroller General program meeting all the current of Management and Budget under of the United States. EPA will submit a structural requirements of part C of title Executive Orders 12866 (58 FR 51735, report containing this action and other I of the CAA to satisfy the infrastructure October 4, 1993) and 13563 (76 FR 3821, required information to the U.S. Senate, SIP PSD elements. EPA also concludes January 21, 2011); the U.S. House of Representatives, and that Kentucky’s infrastructure SIP • Are not Executive Order 13771 (82 the Comptroller General of the United submission, supplemented with the FR 9339, February 2, 2017) regulatory States prior to publication of the rule in February 4, 2020, letter, meets the actions because SIP approvals are the Federal Register. A major rule requirements of 110(a)(2)(C) for the exempted under Executive Order 12866; cannot take effect until 60 days after it infrastructure requirements for the 2015 • Do not impose an information is published in the Federal Register. 8-hour ozone NAAQS. collection burden under the provisions This action is not a ‘‘major rule’’ as In the NPRM published on July 6, of the Paperwork Reduction Act (44 defined by 5 U.S.C. 804(2). 2020, EPA proposed approval of U.S.C. 3501 et seq.); Under section 307(b)(1) of the CAA, Kentucky’s infrastructure submission • provided on January 11, 2019, for the Are certified as not having a petitions for judicial review of this applicable infrastructure SIP significant economic impact on a action must be filed in the United States requirements of the 2015 8-hour ozone substantial number of small entities Court of Appeals for the appropriate NAAQS. The NPRM provides additional under the Regulatory Flexibility Act (5 circuit by November 2, 2020. Filing a U.S.C. 601 et seq.); petition for reconsideration by the detail regarding the background and • rationale for EPA’s action. Comments on Do not contain any unfunded Administrator of this final rule does not the NPRM were due on or before July mandate or significantly or uniquely affect the finality of this action for the 27, 2020. EPA did not receive any affect small governments, as described purposes of judicial review nor does it comments during the comment period. in the Unfunded Mandates Reform Act extend the time within which a petition of 1995 (Pub. L. 104–4); for judicial review may be filed, and II. Final Action • Do not have Federalism shall not postpone the effectiveness of EPA is taking final action to approve implications as specified in Executive such rule or action. This action may not the portions of Kentucky’s January 11, Order 13132 (64 FR 43255, August 10, be challenged later in proceedings to 2019, 2015 8-hour ozone infrastructure 1999); enforce its requirements. See section • SIP submission that address the PSD- Are not an economically significant 307(b)(2). related requirements of CAA sections regulatory actions based on health or 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), safety risks subject to Executive Order List of Subjects in 40 CFR Part 52 and 110(a)(2)(J), and modeling 13045 (62 FR 19885, April 23, 1997); Environmental protection, Air requirements related to CAA section • Are not significant regulatory actions subject to Executive Order pollution control, Incorporation by reference, Intergovernmental relations, 5 See February 4, 2020, letter ‘‘RE: Clarification of 13211 (66 FR 28355, May 22, 2001); Nitrogen dioxide, Ozone, Particulate the use of Appendix W within Kentucky’s 2015 8- • Are not subject to requirements of hour Ozone Infrastructure SIP submittal’’ from Matter, Reporting and recordkeeping Section 12(d) of the National Melissa Duff, Director of Division of Air Quality for requirements, Volatile organic Kentucky Energy and Environment Cabinet, Technology Transfer and Advancement compounds. Department of Environmental Protection to Mary S. Act of 1995 (15 U.S.C. 272 note) because Walker, Regional Administrator for U.S. Dated: July 31, 2020. Environmental Protection Agency, Region 4. The application of those requirements would February 4, 2020, letter is in the docket for this be inconsistent with the CAA; and Mary Walker, • proposed rulemaking. Do not provide EPA with the Regional Administrator, Region 4. 6 The Commonwealth of Kentucky submitted its discretionary authority to address, as infrastructure submission through the State appropriate, disproportionate human For the reasons stated in the Planning Electronic Collaboration System on January 9, 2019; however, the cover letter of the health or environmental effects, using preamble, the EPA amends 40 CFR part submittal is dated January 11, 2019. practicable and legally permissible 52 as follows:
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PART 52—APPROVAL AND Authority: 42 U.S.C. 7401 et seq. Requirements for the 2015 8-Hour PROMULGATION OF Ozone NAAQS’’ at the end of the table Subpart S—Kentucky IMPLEMENTATION PLANS to read as follows: ■ 2. In § 52.920 amend the table in § 52.920 Identification of plan. ■ 1. The authority citation for part 52 paragraph (e) by adding an entry for * * * * * continues to read as follows: ‘‘110(a)(1) and (2) Infrastructure (e) * * *
EPA-APPROVED KENTUCKY NON-REGULATORY PROVISIONS
State submittal Name of non-regulatory SIP Applicable geographic or date/effective EPA approval date Explanations provision nonattainment area date
******* 110(a)(1) and (2) Infrastructure Kentucky ...... 1/11/2019 9/2/2020, [Insert citation of Addressing PSD provisions re- Requirements for the 2015 8- publication]. lated to major sources under Hour Ozone NAAQS. sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) (prong 3), and 110(a)(2)(J), and air qual- ity modeling under section 110(a)(2)(K).
[FR Doc. 2020–17263 Filed 9–1–20; 8:45 am] requirements that the State must submit 29879). The EPA also proposed to deny BILLING CODE 6560–50–P by December 31, 2020. the State’s request for an extension of DATES: The final rule is effective the Serious area attainment date for the October 2, 2020. Fairbanks PM2.5 Nonattainment Area. ENVIRONMENTAL PROTECTION ADDRESSES: The EPA has established a The reasons for our proposed actions AGENCY docket for this action under Docket ID were included in the notice of proposed No. EPA–R10–OAR–2019–0412. All rulemaking and will not be restated 40 CFR Part 52 documents in the docket are listed on here. The public comment period for the https://www.regulations.gov our proposed action ended on June 18, [EPA–R10–OAR–2019–0412; FRL–10011– 2020. 59–Region 10] website. Although listed in the index, some information is not publicly The EPA received three comments on Determination of Failure To Attain by available, e.g., Confidential Business the proposed actions. Two comments the Attainment Date and Denial of Information or other information the were supportive of the actions as Serious Area Attainment Date disclosure of which is restricted by proposed. These comments also raised Extension Request; AK: Fairbanks statute. Certain other material, such as additional issues related to air quality North Star Borough 2006 24-Hour Fine copyrighted material, is not placed on planning and monitoring in the Particulate Matter Serious the internet and will be publicly Fairbanks North Star Borough. These Nonattainment Area available only in hard copy form. issues are beyond the scope of the Publicly available docket materials are proposed actions. The EPA notes that, AGENCY: Environmental Protection available at https:// as a result of failing to attain the Agency (EPA). www.regulations.gov, or please contact NAAQS by the Serious area attainment ACTION: Final rule. the person listed in the FOR FURTHER date, the State is required to submit a INFORMATION CONTACT section for revised nonattainment plan that meets SUMMARY: The Environmental Protection additional availability information. the requirements of CAA Section 189(d) Agency (EPA) is finalizing the FOR FURTHER INFORMATION CONTACT: by December 31, 2020. The public will determination that the Fairbanks North Matthew Jentgen at (206) 553–0340, or have the opportunity to comment on Star Borough nonattainment area failed [email protected]. these plan revisions. to attain the 2006 24-hour fine The final comment the EPA received SUPPLEMENTARY INFORMATION: particulate matter (PM2.5) National was clearly not related to these actions Throughout this document wherever Ambient Air Quality Standards and thus not adverse to these actions. ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, it is (NAAQS) by the December 31, 2019 The comment lacked the required intended to refer to the EPA. ‘‘Serious’’ area attainment date. This specificity to the proposed actions and determination is based on complete, Table of Contents did not recommend a different action quality-assured and certified PM 2.5 I. Background Information than the one proposed. Therefore, the monitoring data for 2017 through 2019. II. Final Action EPA is finalizing the actions as The EPA is also finalizing the denial of III. Statutory and Executive Order Reviews proposed. the State’s request for an extension of the Serious area attainment date for the I. Background Information II. Final Action Fairbanks North Star Borough On May 19, 2020, the EPA proposed Pursuant to CAA section 179(c)(1), the nonattainment area. Based on this final to determine that the Fairbanks North EPA is making a final determination action, the State will be subject to Star Borough PM2.5 nonattainment area that the Fairbanks PM2.5 Nonattainment further statutory and regulatory (Fairbanks PM2.5 Nonattainment Area) Area did not attain the NAAQS by the requirements for this area, including a failed to attain the 2006 24-hour PM2.5 applicable outermost Serious area new State Implementation Plan (SIP) NAAQS by the December 31, 2019, attainment date of December 31, 2019, submission meeting additional Serious area attainment date (85 FR in accordance with CAA section
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188(c)(2). In accordance with CAA any state, local or tribal governments or the state’s attainment date extension section 188(e) and 40 CFR 51.1005(b), the private sector. request. the EPA is also finalizing the denial of F. Executive Order 13132: Federalism L. Congressional Review Act (CRA) the State’s request to extend the Serious area attainment date. These actions do not have federalism These actions are subject to the CRA, implications. They will not have and the EPA will submit a rule report III. Statutory and Executive Order substantial direct effects on the states, to each House of the Congress and to the Reviews on the relationship between the national Comptroller General of the United A. Executive Order 12866: Regulatory government and the states, or on the States. These actions are not a ‘‘major Planning and Review and Executive distribution of power and rule’’ as defined by 5 U.S.C. 804(2). Order 13563: Improving Regulation and responsibilities among the various M. Judicial Review Regulatory Review levels of government. Under section 307(b)(1) of the Clean These actions are exempt from review G. Executive Order 13175: Consultation Air Act, petitions for judicial review of by the Office of Management and and Coordination With Indian Tribal these actions must be filed in the United Budget (OMB) because the actions Governments States Court of Appeals for the satisfy the CAA obligation to make a These actions do not have tribal appropriate circuit by November 2, determination of attainment based on an 2020. Filing a petition for area’s air quality as of the attainment implications as specified in Executive Order 13175. The CAA and the Tribal reconsideration by the Administrator of date and deny an attainment date this final rule does not affect the finality extension request. Authority Rule establish the relationship of the federal government of these actions for the purposes of B. Executive Order 13771: Regulatory and tribes in developing plans to attain judicial review nor does it extend the Planning and Review and Executive the NAAQS, and these actions do time within which a petition for judicial Order 13563: Improving Regulation and nothing to modify that relationship. review may be filed, and shall not Regulatory Review Thus, Executive Order 13175 does not postpone the effectiveness of such rules These actions are not Executive Order apply to these actions. or actions. These actions may not be challenged later in proceedings to 13771 regulatory actions because they H. Executive Order 13045: Protection of are not significant regulatory actions enforce its requirements. (See section Children From Environmental Health 307(b)(2)). under Executive Order 12866. Risks and Safety Risks List of Subjects in 40 CFR Part 52 C. Paperwork Reduction Act (PRA) These actions are not subject to These actions do not impose any Executive Order 13045 because they are Environmental protection, Air additional information collection not economically significant as defined pollution control, Carbon monoxide, burden under the provisions of the PRA, in Executive Order 12866, and because Incorporation by reference, 44 U.S.C. 3501 et seq. Neither the action the EPA does not believe any Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate to find that the Fairbanks PM2.5 environmental health or safety risks Nonattainment Area failed to attain the addressed by these actions present a matter, Reporting and recordkeeping 2006 24-hour PM2.5 NAAQS by the disproportionate risk to children. requirements, Sulfur oxides, Volatile Serious area attainment date, nor the organic compounds. I. Executive Order 13211: Actions That denial of the attainment extension Authority: 42 U.S.C. 7401 et seq. Significantly Affect Energy Supply, request establish any new information Distribution, or Use Dated: July 28, 2020. collection burden not already covered Christopher Hladick, under OMB control number 2060–0611. These actions are not subject to Executive Order 13211, because they are Regional Administrator, Region 10. D. Regulatory Flexibility Act (RFA) not significant regulatory actions under [FR Doc. 2020–17541 Filed 9–1–20; 8:45 am] I certify that these actions will not Executive Order 12866. BILLING CODE 6560–50–P have a significant economic impact on a substantial number of small entities J. National Technology Transfer and under the RFA. These actions will not Advancement Act (NTTAA) ENVIRONMENTAL PROTECTION impose any requirements on small These actions are not subject to the AGENCY requirements of Section 12(d) of the entities. Neither a determination that 40 CFR Part 52 the Fairbanks PM2.5 Nonattainment Area NTTAA because these actions do not failed to attain the 2006 24-hour PM2.5 involve technical standards. [EPA–R04–OAR–2020–0103; FRL–10012– 91–Region 4] NAAQS by the Serious area attainment K. Executive Order 12898: Federal date, nor a denial of an attainment date Actions To Address Environmental Air Plan Approval; KY; Jefferson extension request create any new Justice in Minority Populations and County Existing and New requirements or directly regulate any Low-Income Populations Miscellaneous Metal Parts and entities. The EPA believes that these actions Products Surface Coating Operations E. Unfunded Mandates Reform Act do not have disproportionately high and AGENCY: (UMRA) Environmental Protection adverse human health or environmental Agency (EPA). These actions do not contain any effects on minority populations, low- ACTION: Final rule. unfunded mandate as described in income populations and/or indigenous UMRA, 2 U.S.C. 1531–1538, and do not peoples, as specified in Executive Order SUMMARY: The Environmental Protection significantly or uniquely affect small 12898 (59 FR 7629, February 16, 1994). Agency (EPA) is approving revisions to governments. These actions do not Pursuant to the CAA, these actions the Jefferson County portion of the impose additional requirements beyond determine that the Fairbanks PM2.5 Kentucky State Implementation Plan those imposed by state law. Thus, these Nonattainment Area did not attain by (SIP), submitted by the Commonwealth actions impose no enforceable duty on the applicable attainment date and deny of Kentucky (Commonwealth), through
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the Energy and Environment Cabinet Kentucky SIP, submitted by the emissions 2 from all affected facilities (Cabinet) on September 5, 2019. The Commonwealth on September 5, 2019. subject to this regulation are less than or revisions were submitted by the Cabinet The change clarifies the applicability of equal to five tons per year. The SIP on behalf of the Louisville Metro Air the surface coating standard exemptions revisions create consistency between Pollution Control District and make a as it pertains to Section 3 of Regulations Paragraphs 5.1 and 5.2 by clarifying that singular change to two regulations for 6.31 and 7.59. The SIP revisions ensure the exemption in Paragraph 5.1 applies clarity purposes regarding the consistency across the regulations and only to Section 3 (i.e., the phrase applicability of exempt surface coating update the current SIP-approved version ‘‘exempt from this regulation’’ is standards for existing and new of Regulation 6.31 (Version 6) and replaced with ‘‘exempt from the miscellaneous metal parts and products Regulation 7.59 (Version 6) to Version 7 standards in Section 3 of this operations. EPA is approving the change of each. regulation’’). These revisions do not to both regulations as it is consistent EPA has found that surface coatings of change how the regulation operates and with the Clean Air Act (CAA or Act). miscellaneous metal parts and products solely serves as an update to clarify that DATES: This rule is effective October 2, operations emit hazardous air pollutants the exemption only applies to emissions 2020. (HAP). See 69 FR 129 (January 2, 2004). standards in each regulation, as ADDRESSES: EPA has established a Regulation of these sources protects air recordkeeping requirements are still docket for this action under Docket quality and promotes public health by explicitly required. Identification No. EPA–R04–OAR– reducing HAP emissions into the In a notice of proposed rulemaking 2020–0103. All documents in the docket environment. The organic HAP emitted (NPRM) published on May 4, 2020 (85 are listed on the www.regulations.gov by surface coatings and miscellaneous FR 26418), EPA proposed to approve the website. Although listed in the index, metal parts and products operations are revisions to the Jefferson County portion some information is not publicly volatile organic compounds (VOC), as of the Kentucky SIP, provided on September 5, 2019. Comments on the available, i.e., Confidential Business defined by 40 CFR 51.100(s).1 NPRM were due on or before June 3, Information or other information whose Tropospheric ozone, commonly disclosure is restricted by statute. 2020. Only one comment was received known as smog, occurs when VOC and in favor of the action. Certain other material, such as nitrogen oxides (NOx) react in the copyrighted material, is not placed on atmosphere. Because of the harmful III. Incorporation by Reference the internet and will be publicly health effects of ozone, EPA limits the In this document, EPA is finalizing available only in hard copy form. VOC and NOx emissions that can be regulatory text that includes Publicly available docket materials are released into the atmosphere. VOC are incorporation by reference. In available either electronically through compounds of carbon excluding carbon accordance with requirements of 1 CFR www.regulations.gov or in hard copy at monoxide, carbon dioxide, and 51.5, EPA is finalizing the incorporation the Air Regulatory Management Section, carbonates, and ammonium carbonate, by reference of Louisville Metro Air Air Planning and Implementation which participate in atmospheric Pollution Control District Regulation Branch, Air and Radiation Division, photochemical reactions, including in 6.31, Standard of Performance for U.S. Environmental Protection Agency, the formation of ozone. The compounds Existing Miscellaneous Metal Parts and Region 4, 61 Forsyth Street SW, Atlanta, of carbon (or organic compounds) have Products Surface Coating Operations, Georgia 30303–8960. EPA requests that different levels of photochemical Version 7, and Regulation 7.59, if at all possible, you contact the person reactivity; therefore, they do not form Standard of Performance for New listed in the FOR FURTHER INFORMATION ozone to the same extent. Miscellaneous Metal Parts and Products CONTACT section to schedule your II. Analysis of State Submission Surface Coating Operations, Version 7, inspection. The Regional Office’s state effective June 19, 2019. EPA has official hours of business are Monday Jefferson County Air Quality made, and will continue to make, these through Friday 8:30 a.m. to 4:30 p.m., Regulations 6.31 and 7.59 address VOC materials generally available through excluding Federal holidays. emitted by miscellaneous metal parts www.regulations.gov and at the EPA FOR FURTHER INFORMATION CONTACT: and products surface coating operations Region 4 Office (please contact the Sarah LaRocca, Air Regulatory at existing and new facilities, person identified in the FOR FURTHER Management Section, Air Planning and respectively. In this action, EPA is INFORMATION CONTACT section of this Implementation Branch, Air and approving a change to these two preamble for more information). Radiation Division, Region 4, U.S. regulations. In Paragraph 5.1 of Section Therefore, these materials have been Environmental Protection Agency, 61 5, Exemptions, of both regulations, approved by EPA for inclusion in the Forsyth Street SW, Atlanta, Georgia clarifying text is being added to ensure State implementation plan, have been 30303–8960. The telephone number is consistency with Paragraph 5.2. In the incorporated by reference by EPA into (404) 562–8994. Ms. LaRocca can also SIP-approved versions of these that plan, are fully federally enforceable be reached via electronic mail at regulations, Paragraph 5.1 lists the types under sections 110 and 113 of the CAA [email protected]. of surface coatings that are ‘‘exempt as of the effective date of the final SUPPLEMENTARY INFORMATION: from this regulation’’ and Paragraph 5.2 rulemaking of EPA’s approval, and will I. Background exempts any affected facility from be incorporated by reference in the next Section 3 (Standards for Volatile update to the SIP compilation.3 EPA is approving a change to Organic Compounds) if the total VOC Regulation 6.31, Standard of IV. Final Action Performance for Existing Miscellaneous 1 Specifically, the organic HAP emitted by these EPA is approving the Louisville Metro Metal Parts and Products Surface operations include xylenes, toluene, methyl ethyl Air Pollution Control District’s Coating Operations, and Regulation ketone (MEK), phenol, cresols/cresylic acid, glycol September 5, 2019, SIP submission, 7.59, Standard of Performance for New ethers (including ethylene glycol monobutyl ether which clarifies the applicability of (EGBE)), styrene, methyl isobutyl ketone MIBK), Miscellaneous Metal Parts and Products and ethyl benzene. See 69 FR 129. The Surface Coating Operations, of the aforementioned compounds are identified as VOC 2 Potential emissions prior to any add-on controls. Jefferson County portion of the in 40 CFR 51.100(s)(1). 3 See 62 FR 27968 (May 22, 1997).
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surface coating standard exemptions as • Is not a significant regulatory action circuit by November 2, 2020. Filing a it pertains to Section 3 of Regulation subject to Executive Order 13211 (66 FR petition for reconsideration by the 6.13 and 7.59. 28355, May 22, 2001); Administrator of this final rule does not • affect the finality of this action for the V. Statutory and Executive Order Is not subject to requirements of purposes of judicial review nor does it Reviews Section 12(d) of the National Technology Transfer and Advancement extend the time within which a petition Under the CAA, the Administrator is Act of 1995 (15 U.S.C. 272 note) because for judicial review may be filed, and required to approve a SIP submission application of those requirements would shall not postpone the effectiveness of that complies with the provisions of the be inconsistent with the CAA; and such rule or action. This action may not Act and applicable Federal regulations. • Does not provide EPA with the be challenged later in proceedings to See 42 U.S.C. 7410(k); 40 CFR 52.02(a). discretionary authority to address, as enforce its requirements. See section Thus, in reviewing SIP submissions, appropriate, disproportionate human 307(b)(2). EPA’s role is to approve state choices, health or environmental effects, using List of Subjects in 40 CFR Part 52 provided that they meet the criteria of practicable and legally permissible the CAA. This action merely approves methods, under Executive Order 12898 Environmental protection, Air state law as meeting Federal (59 FR 7629, February 16, 1994). pollution control, Incorporation by requirements and does not impose The SIP is not approved to apply on reference, Intergovernmental relations, additional requirements beyond those any Indian reservation land or in any Ozone, Particulate matter, Reporting imposed by state law. For that reason, other area where EPA or an Indian tribe and recordkeeping requirements, this action: has demonstrated that a tribe has Volatile organic compounds. • Is not a significant regulatory action jurisdiction. In those areas of Indian subject to review by the Office of Dated: July 31, 2020. country, the rule does not have tribal Management and Budget under Mary Walker, implications as specified by Executive Executive Orders 12866 (58 FR 51735, Regional Administrator, Region 4. Order 13175 (65 FR 67249, November 9, October 4, 1993) and 13563 (76 FR 3821, For the reasons stated in the 2000), nor will it impose substantial January 21, 2011); preamble, the EPA amends 40 CFR part direct costs on tribal governments or • Is not an Executive Order 13771 (82 52 as follows: FR 9339, February 2, 2017) regulatory preempt tribal law. action because SIP approvals are The Congressional Review Act, 5 PART 52—APPROVAL AND exempted under Executive Order 12866; U.S.C. 801 et seq., as added by the Small PROMULGATION OF • Does not impose an information Business Regulatory Enforcement IMPLEMENTATION PLANS collection burden under the provisions Fairness Act of 1996, generally provides of the Paperwork Reduction Act (44 that before a rule may take effect, the ■ 1. The authority citation for part 52 U.S.C. 3501 et seq.); agency promulgating the rule must continues to read as follows: submit a rule report, which includes a • Is certified as not having a Authority: 42 U.S.C. 7401 et seq. significant economic impact on a copy of the rule, to each House of the substantial number of small entities Congress and to the Comptroller General Subpart (S)—Kentucky under the Regulatory Flexibility Act (5 of the United States. EPA will submit a U.S.C. 601 et seq.); report containing this action and other ■ 2. In 52.920 amend Table 2 in • Does not contain any unfunded required information to the U.S. Senate, paragraph (c) by: mandate or significantly or uniquely the U.S. House of Representatives, and ■ a. Under ‘‘Reg 6—Standards of affect small governments, as described the Comptroller General of the United Performance for Existing Affected in the Unfunded Mandates Reform Act States prior to publication of the rule in Facilities’’ revising the entry for ‘‘6.31’’; of 1995 (Pub. L. 104–4); the Federal Register. A major rule and • Does not have Federalism cannot take effect until 60 days after it ■ b. Under ‘‘Reg 7—Standards of implications as specified in Executive is published in the Federal Register. Performance for New Affected Order 13132 (64 FR 43255, August 10, This action is not a ‘‘major rule’’ as Facilities’’ revising the entry for ‘‘7.59’’. 1999); defined by 5 U.S.C. 804(2). The revisions read as follows: • Is not an economically significant Under section 307(b)(1) of the CAA, regulatory action based on health or petitions for judicial review of this § 52.920 Identification of plan. safety risks subject to Executive Order action must be filed in the United States * * * * * 13045 (62 FR 19885, April 23, 1997); Court of Appeals for the appropriate (c) * * *
TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY
District Reg Title/subject EPA approval Federal Register notice effective Explanation date date
*******
Reg 6—Standards of Performance for Existing Affected Facilities
******* 6.31 ...... Standards of Performance for Exist- 9/2/20 [Insert citation of publication] ...... 6/19/19 ing Miscellaneous Metal Parts and Products Surface Coating Oper- ations.
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TABLE 2—EPA-APPROVED JEFFERSON COUNTY REGULATIONS FOR KENTUCKY—Continued
District Reg Title/subject EPA approval Federal Register notice effective Explanation date date
*******
Reg 7—Standards of Performance for New Affected Facilities
******* 7.59 ...... Standards of Performance for New 9/2/20 [Insert citation of publication] ...... 6/19/19 Miscellaneous Metal Parts and Products Surface Coating Oper- ations.
*******
* * * * * SUPPLEMENTARY INFORMATION: NMFS to be reached, whichever happens first. [FR Doc. 2020–17229 Filed 9–1–20; 8:45 am] manages the Gulf reef fish fishery, Re-opening the recreational sector BILLING CODE P which includes gray triggerfish, under allows participants in that sector an the Fishery Management Plan for the additional opportunity to harvest gray Reef Fish Resources of the Gulf of triggerfish while minimizing the risk of Mexico (FMP). The FMP was prepared exceeding the recreational ACT. DEPARTMENT OF COMMERCE by the Gulf of Mexico Fishery Once the recreational sector closes National Oceanic and Atmospheric Management Council (Council) and is again on October 26, 2020, or sooner if Administration implemented by NMFS under the the recreational ACT is reached or authority of the Magnuson-Stevens projected to be reached, the bag and 50 CFR Part 622 Fishery Conservation and Management possession limits for gray triggerfish in Act (Magnuson-Stevens Act) through or from the Gulf EEZ are zero. The [Docket No. 121004518–3398–01; RTID regulations at 50 CFR part 622. All gray prohibition on possession of Gulf gray 0648–XA446] triggerfish weights discussed in this triggerfish also applies in Gulf state temporary rule are in round weight. waters for any vessel issued a valid Fisheries of the Caribbean, Gulf of The recreational annual catch limit Federal charter vessel/headboat permit Mexico, and South Atlantic; Re- (ACL) for Gulf gray triggerfish is 241,200 for Gulf reef fish. Opening of Recreational Sector for lb (109,406 kg), and the recreational Classification Gulf of Mexico Gray Triggerfish ACT is 217,100 lb (98,475 kg) (50 CFR 622.41(b)(2)(iii)). NMFS issues this action pursuant to AGENCY: National Marine Fisheries As specified in 50 CFR 622.41(b)(2)(i), section 305(d) of the Magnuson-Stevens Service (NMFS), National Oceanic and NMFS is required to close the Act. This action is required under 50 Atmospheric Administration (NOAA), recreational sector for gray triggerfish CFR 622.8(c) which was issued Commerce. when the recreational ACT is reached or pursuant to section 304(b) of the ACTION: Temporary rule; re-opening. is projected to be reached by filing a Magnuson-Stevens Act, and is exempt notification to that effect with the Office from review under Executive Order SUMMARY: NMFS announces the re- of the Federal Register. NMFS 12866. opening of the recreational sector for previously projected that the These measures are exempt from the gray triggerfish in the exclusive recreational ACT for the Gulf gray procedures of the Regulatory Flexibility economic zone (EEZ) of the Gulf of triggerfish for the 2020 fishing year Act because the temporary rule is issued Mexico (Gulf) through this temporary would be reached by May 2, 2020. without opportunity for prior notice and rule. The most recent recreational Accordingly, NMFS published a comment. landings of gray triggerfish indicate that temporary rule in the Federal Register This action responds to the best the recreational annual catch target to implement the accountability scientific information available. The (ACT) for 2020 fishing year has not yet measure (AM) to close the recreational Assistant Administrator for NOAA been reached. Therefore, NMFS re- sector for gray triggerfish in the Gulf Fisheries (AA), finds that the need to opens the recreational sector for gray EEZ effective from May 2, 2020, until immediately implement this action to triggerfish in the Gulf EEZ on September the start of the 2021 fishing year on temporarily re-open the recreational 1, 2020, through October 25, 2020, or January 1, 2021 (85 FR 10624, February sector for gray triggerfish constitutes until the recreational ACT is reached or 25, 2020). good cause to waive the requirements to projected to be reached, whichever However, the most recent landings provide prior notice and opportunity for happens first, to allow the recreational data for gray triggerfish now indicate the public comment pursuant to the ACT to be caught. recreational ACT has not been reached. authority set forth in 5 U.S.C. 553(b)(B), DATES: This rule is effective 12:01 a.m., Consequently, and in accordance with as such procedures are unnecessary and local time, September 1, 2020, until 50 CFR 622.8(c), NMFS temporarily re- contrary to the public interest. Such 12:01 a.m., local time, October 26, 2020. opens the recreational sector for gray procedures are unnecessary because the FOR FURTHER INFORMATION CONTACT: triggerfish on September 1, 2020. The regulations at 50 CFR 622.8(c) and the Kelli O’Donnell, NMFS Southeast recreational sector will remain open rule implementing the recreational ACT Regional Office, telephone: 727–824– through October 25, 2020, or until the and AMs have already been subject to 5305, email: [email protected]. recreational ACT is reached or projected notice and comment, and all that
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remains is to notify the public of the re- lb (4,535 kg) of Illex squid per trip, and and sell more than 10,000 lb (4,535 kg) opening. Such procedures are contrary from landing Illex squid more than once of Illex squid from that trip. Also, to the public interest because of the per calendar day. This prohibition is federally permitted dealers may not need to immediately implement this required when NMFS projects that 95 receive Illex squid from federally action to allow recreational fishers to percent of the 2020 annual catch limit permitted Illex squid vessels that harvest the remainder of the recreational will have been caught by the effective harvest more than 10,000 lb (4,535 kg) ACT beginning on September 1, 2020. date. This action is intended to prevent of Illex squid through 2400 hr, Prior notice and opportunity for public over-harvest of Illex squid for the fishing December 31, 2020, unless it is from a comment would require time and would year. trip landed by a vessel that entered port delay the re-opening of the recreational DATES: Effective 0001 hr local time, before 0001 hr on August 31, 2020. sector. Opening the recreational sector August 31, 2020, through December 31, Classification by September 1 provides an opportunity 2020. for recreational fishers to make trips FOR FURTHER INFORMATION CONTACT: NMFS issues this action pursuant to during the early fall when the weather Alyson Pitts, Fishery Management section 305(d) of the Magnuson-Stevens is generally more favorable. A delay of Specialist, (978) 281–9352. Act. This action is required by 50 CFR reopening until October increases the SUPPLEMENTARY INFORMATION: part 648, which was issued pursuant to likelihood of inclement weather and the Regulations for the Illex squid fishery section 304(b), and is exempt from chance that recreational trips will not be are at 50 CFR part 648. The regulations review under Executive Order 12866. possible. at § 648.24(a)(2) require that when the For the aforementioned reasons, the NMFS finds good cause pursuant to 5 Regional Administrator projects that AA also finds good cause to waive the U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) Illex squid catch will reach 95 percent 30-day delay in the effectiveness of this to waive prior notice and the of the domestic annual harvest (DAH) action under 5 U.S.C. 553(d)(3). opportunity for public comment and the quota, NMFS must prohibit Federal Illex delayed effectiveness because it would Authority: 16 U.S.C. 1801 et seq. squid vessel permit holders from be contrary to the public interest and Dated: August 27, 2020. directed fishing. Vessels may not catch, impracticable. Data and other Jennifer M. Wallace, possess, transfer, or land more than information indicating the Illex squid Acting Director, Office of Sustainable 10,000 lb (4,535 kg) of Illex squid per fleet will have landed at least 95 percent Fisheries, National Marine Fisheries Service. trip, or land Illex squid more than once of the 2019 DAH quota have only [FR Doc. 2020–19324 Filed 8–28–20; 4:15 pm] per calendar day. The Regional recently become available. Landings BILLING CODE 3510–22–P Administrator monitors the Illex squid data are updated on a weekly basis, and fishery catch based on dealer reports, NMFS monitors catch data on a daily state data, and other available basis as catch increases toward the DEPARTMENT OF COMMERCE information. When 95 percent of the limit. Further, high-volume catch and DAH has been reached, NMFS must landings in this fishery increases total National Oceanic and Atmospheric provide at least 72 hours of notice to the catch relative to the quota quickly. The Administration public that it made this determination. regulations at § 648.24(a)(2) require such NMFS must also publish the date that action to ensure that Illex squid vessels 50 CFR Part 648 the catch is projected to reach 95 do not exceed the 2020 DAH quota. If [Docket No. 200730–0202] percent of the quota, and the date when implementation of this action is prohibitions on catch and landings for delayed, the quota for the 2020 fishing RTID 0648–XA341 the remainder of the fishing year year may be exceeded, thereby become effective. undermining the conservation Fisheries of the Northeastern United The Regional Administrator has objectives of the Atlantic Mackerel, States; Atlantic Mackerel, Squid, and determined, based on dealer reports and Squid, and Butterfish Fishery Butterfish Fishery; 2020 Illex Squid other available information, that the Management Plan. Also, the public had Quota Harvested Illex squid fleet will catch 95 percent of prior notice and full opportunity to AGENCY: National Marine Fisheries the total Illex squid DAH quota for the comment on this process when the Service (NMFS), National Oceanic and 2020 season through December 31, provisions regarding closures and the Atmospheric Administration (NOAA), 2020, by August 31, 2020. Therefore, 2020 quota levels were put in place. Commerce. effective 0001 August 31, 2020, Authority: 16 U.S.C. 1801 et seq. federally permitted vessels may not fish ACTION: Temporary rule; reduction of Dated: August 28, 2020. possession limit. for, catch, possess, transfer, or land more than 10,000 lb (4,535 kg) of Illex Kelly Denit, SUMMARY: Federal Illex squid vessel squid, and may not land Illex squid Director, Office of Sustainable Fisheries, permit holders are prohibited from more than once per calendar day. National Marine Fisheries Service. fishing for, catching, possessing, Vessels that have entered port before [FR Doc. 2020–19372 Filed 8–28–20; 4:15 pm] transferring or landing more than 10,000 0001 hr on August 31, 2020, may offload BILLING CODE 3510–22–P
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Proposed Rules Federal Register Vol. 85, No. 171
Wednesday, September 2, 2020
This section of the FEDERAL REGISTER and 5 p.m., Monday through Friday, Except for Confidential Business contains notices to the public of the proposed except Federal holidays. Information (CBI) as described in the issuance of rules and regulations. The For service information identified in following paragraph, and other purpose of these notices is to give interested this proposed AD, contact Pilatus information as described in 14 CFR persons an opportunity to participate in the 11.35, the FAA will post all comments rule making prior to the adoption of the final Aircraft Ltd., Customer Technical rules. Support (MCC), P.O. Box 992, CH–6371 received, without change, to https:// Stans, Switzerland; telephone: +41 (0)41 www.regulations.gov, including any 619 67 74; fax: +41 (0)41 619 67 73; personal information you provide. The DEPARTMENT OF TRANSPORTATION email: Techsupport@pilatus- FAA will also post a report aircraft.com; internet: https:// summarizing each substantive verbal Federal Aviation Administration www.pilatus-aircraft.com/en. You may contact it receives about this proposed review this referenced service AD. 14 CFR Part 39 information at the FAA, Airworthiness Confidential Business Information Products Section, Operational Safety [Docket No. FAA–2020–0753; Product CBI is commercial or financial Branch, 901 Locust, Kansas City, Identifier 2019–CE–033–AD] information that is both customarily and Missouri 64106. For information on the actually treated as private by its owner. RIN 2120–AA64 availability of this material at the FAA, Under the Freedom of Information Act call (816) 329–4148. It is also available (FOIA) (5 U.S.C. 552), CBI is exempt Airworthiness Directives; Pilatus on the internet at https:// from public disclosure. If your Aircraft Ltd. Airplanes www.regulations.gov by searching for comments responsive to this NPRM and locating Docket No. FAA–2020– AGENCY: Federal Aviation contain commercial or financial 0753. Administration (FAA), Department of information that is customarily treated Transportation (DOT). Examining the AD Docket as private, that you actually treat as ACTION: Notice of proposed rulemaking private, and that is relevant or You may examine the AD docket on (NPRM). responsive to this NPRM, it is important the internet at https:// that you clearly designate the submitted SUMMARY: The FAA proposes to adopt a www.regulations.gov by searching for comments as CBI. Please mark each new airworthiness directive (AD) for and locating Docket No. FAA–2020– page of your submission containing CBI Pilatus Aircraft Ltd. Model PC–24 0753; or in person at Docket Operations as ‘‘PROPIN.’’ The FAA will treat such airplanes. This proposed AD results between 9 a.m. and 5 p.m., Monday marked submissions as confidential from mandatory continuing through Friday, except Federal holidays. under the FOIA, and they will not be airworthiness information (MCAI) The AD docket contains this proposed placed in the public docket of this originated by an aviation authority of AD, the regulatory evaluation, any NPRM. Submissions containing CBI another country to identify and correct comments received, and other should be sent to Doug Rudolph, an unsafe condition on an aviation information. The street address for Aerospace Engineer, FAA, General product. The MCAI describes the unsafe Docket Operations is listed above. Aviation & Rotorcraft Section, condition as overheating of the Comments will be available in the AD International Validation Branch, 901 electrical wiring splices close to the docket shortly after receipt. Locust, Room 301, Kansas City, right-hand pitot-static connector on FOR FURTHER INFORMATION CONTACT: Missouri 64106; telephone: (816) 329– frame 10. The FAA is proposing this AD Doug Rudolph, Aerospace Engineer, 4059; fax: (816) 329–4090; email: to require actions to address the unsafe FAA, General Aviation & Rotorcraft [email protected]. Any condition on these products. Section, International Validation commentary that the FAA receives DATES: The FAA must receive comments Branch, 901 Locust, Room 301, Kansas which is not specifically designated as on this proposed AD by October 19, City, Missouri 64106; telephone: (816) CBI will be placed in the public docket 2020. 329–4059; fax: (816) 329–4090; email: for this rulemaking. [email protected]. ADDRESSES: You may send comments by Discussion any of the following methods: SUPPLEMENTARY INFORMATION: The European Union Aviation Safety • Federal eRulemaking Portal: Go to Comments Invited Agency (EASA), which is the Technical https://www.regulations.gov. Follow the Agent for the Member States of the instructions for submitting comments. The FAA invites you to send any European Community, has issued AD • Fax: (202) 493–2251. written relevant data, views, or No. 2019–0166, dated July 15, 2019 • Mail: U.S. Department of arguments about this proposed AD. (referred to after this as ‘‘the MCAI’’), to Transportation, Docket Operations, M– Send your comments to an address correct an unsafe condition for Pilatus 30, West Building Ground Floor, Room listed under the ADDRESSES section. Aircraft Ltd. Model PC–24 airplanes. W12–140, 1200 New Jersey Avenue SE, Include ‘‘Docket No. FAA–2020–0753; The MCAI states: Washington, DC 20590. Product Identifier 2019–CE–033–AD’’ at • Hand Delivery: U.S. Department of the beginning of your comments. The During maintenance it was found that affected parts located close to the right-hand Transportation, Docket Operations, M– FAA will consider all comments pitot/static connector on frame 10 showed 30, West Building Ground Floor, Room received by the closing date and may signs of overheating. W12–140, 1200 New Jersey Avenue SE, amend this proposed AD because of This condition, if not corrected, could lead Washington, DC 20590, between 9 a.m. those comments. to an uncontrolled fire in the cockpit area, or
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loss of probe heating and de-icing function, According to the manufacturer, all of PART 39—AIRWORTHINESS possibly resulting in reduced control of the the costs of this proposed AD may be DIRECTIVES aeroplane. covered under warranty, thereby To address this potential unsafe condition, reducing the cost impact on affected ■ 1. The authority citation for part 39 Pilatus issued the [service bulletin] SB to continues to read as follows: provide modification instructions. individuals. The FAA does not control For the reason described above, this warranty coverage for affected Authority: 49 U.S.C. 106(g), 40113, 44701. [EASA] AD requires replacement of affected individuals. As a result, the FAA has parts with serviceable parts, and prohibits included all costs in this cost estimate. § 39.13 [Amended] (re)installation of affected parts. ■ 2. The FAA amends § 39.13 by adding Authority for This Rulemaking The MCAI identifies the ‘‘affected the following new airworthiness part’’ as electrical wiring splice part Title 49 of the United States Code directive: number (P/N) 971.31.32.561 and a specifies the FAA’s authority to issue Pilatus Aircraft Ltd.: Docket No. FAA–2020– ‘‘serviceable part’’ as electrical wiring rules on aviation safety. Subtitle I, 0753; Product Identifier 2019–CE–033– splice P/N 971.31.32.641. EASA section 106, describes the authority of AD. identified the root cause of the the FAA Administrator. Subtitle VII: (a) Comments Due Date overheating as internal corrosion of the Aviation Programs, describes in more affected splices, which are not The FAA must receive comments by detail the scope of the Agency’s October 19, 2020. immersion-resistant, due to moisture authority. ingress. The serviceable splices are The FAA is issuing this rulemaking (b) Affected ADs immersion-resistant. You may examine under the authority described in None. the MCAI on the internet at https:// Subtitle VII, Part A, Subpart III, Section (c) Applicability www.regulations.gov by searching for 44701: General requirements. Under This airworthiness directive (AD) applies and locating Docket No. FAA–2020– that section, Congress charges the FAA 0753. to Pilatus Aircraft Ltd. Model PC–24 with promoting safe flight of civil airplanes, serial numbers 101 through 125 Related Service Information Under 1 aircraft in air commerce by prescribing inclusive, certificated in any category. CFR Part 51 regulations for practices, methods, and procedures the Administrator finds (d) Subject Pilatus Aircraft Ltd. has issued Pilatus necessary for safety in air commerce. Air Transport Association of America PC–24 Service Bulletin No. 30–002, This regulation is within the scope of (ATA) Code 30: Ice and Rain Protection. dated April 3, 2019. The service that authority because it addresses an information contains procedures for (e) Reason unsafe condition that is likely to exist or replacing certain electrical splices and This AD was prompted by mandatory develop on products identified in this wire for the pitot and static probes. This continuing airworthiness information (MCAI) rulemaking action. service information is reasonably originated by an aviation authority of another country to identify and correct an unsafe available because the interested parties Regulatory Findings condition on an aviation product. The MCAI have access to it through their normal describes the unsafe condition as overheating course of business or by the means The FAA determined that this proposed AD would not have federalism of the electrical wiring splices close to the identified in the ADDRESSES section. right-hand pitot-static connector on frame 10. implications under Executive Order FAA’s Determination and Requirements The FAA is issuing this AD to prevent 13132. This proposed AD would not overheating of the pitot and static probe of the Proposed AD have a substantial direct effect on the electrical splices, which could lead to loss of This product has been approved by States, on the relationship between the probe heating and de-icing function or an the aviation authority of another national Government and the States, or inflight fire. country, and is approved for operation on the distribution of power and (f) Actions and Compliance in the United States. Pursuant to our responsibilities among the various levels of government. Unless already done, do the following bilateral agreement with this State of actions in paragraphs (f)(1) and (2): Design Authority, it has notified the For the reasons discussed above, I (1) Within 3 months after the effective date FAA of the unsafe condition described certify this proposed regulation: of this AD, for the pitot and static probes de- in the MCAI and service information (1) Is not a ‘‘significant regulatory ice wiring, replace wire H279A10 with wire referenced above. The FAA is proposing action’’ under Executive Order 12866, H279A12, and replace each electrical wiring this AD because it evaluated all splice part number (P/N) 971.31.32.561 with (2) Will not affect intrastate aviation electrical wiring splice P/N 971.31.32.641 by information and determined the unsafe in Alaska, and condition exists and is likely to exist or following the Accomplishment (3) Will not have a significant Instructions—Aircraft, section 3.B., of Pilatus develop on other products of the same Aircraft Ltd. PC–24 Service Bulletin No. 30– type design. economic impact, positive or negative, on a substantial number of small entities 002, dated April 3, 2019. Costs of Compliance under the criteria of the Regulatory (2) After completing the requirements of Flexibility Act. paragraph (f)(1) of this AD, do not install a The FAA estimates that this proposed pitot and static probes de-ice wire H279A10 AD will affect 16 products of U.S. List of Subjects in 14 CFR Part 39 or electrical wiring splice P/N 971.31.32.561 registry. The FAA also estimates that it on any airplane. would take 6 work-hours per product to Air transportation, Aircraft, Aviation safety, Incorporation by reference, (g) Alternative Methods of Compliance comply with the basic requirements of (AMOCs) this proposed AD. The average labor Safety. The Manager, International Validation rate is $85 per work-hour. Required The Proposed Amendment Branch, FAA, has the authority to approve parts would cost about $65 per product. AMOCs for this AD, if requested using the Based on these figures, the FAA Accordingly, under the authority procedures found in 14 CFR 39.19. Send estimates the cost of the proposed AD delegated to me by the Administrator, information to Doug Rudolph, Aerospace on U.S. operators to be $9,200, or $575 the FAA proposes to amend 14 CFR part Engineer, FAA, General Aviation & Rotorcraft per product. 39 as follows: Section, International Validation Branch, 901
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Locust, Room 301, Kansas City, Missouri redesignate certain unclassifiable areas service via email, phone, and webform. 64106; telephone: (816) 329–4059; fax: (816) designated during the EPA’s Round 2 air We encourage the public to submit 329–4090; email: [email protected]. quality designations for the 2010 1-Hour comments via https:// Before using any approved AMOC on any Sulfur Dioxide (SO ) Primary National airplane to which the AMOC applies, notify 2 www.regulations.gov/ as there may be a your appropriate principal inspector (PI) in Ambient Air Quality Standard delay in processing mail and faxes. the FAA Flight Standards District Office (NAAQS). Specifically, the EPA believes Hand deliveries or couriers will be (FSDO), or lacking a PI, your local FSDO. that it now has sufficient information to received by scheduled appointment determine that certain unclassifiable (h) Related Information only. For further information and areas in Missouri, Nebraska, Ohio, and updates on the EPA Docket Center Refer to MCAI European Union Aviation Texas are attaining the 2010 1-hour SO2 services, please visit us online at Safety Agency (EASA) AD No. 2019–0166, primary NAAQS, and, therefore, is dated July 15, 2019. You may examine the https://www.epa.gov/dockets. MCAI on the internet at https:// proposing to redesignate these areas to attainment/unclassifiable for the 2010 1- Send information identified as CBI www.regulations.gov by searching for and only to the following address: Tiffany locating Docket No. FAA–2020–0753. For hour SO2 primary NAAQS. Purifoy, OAQPS Document Control service information related to this AD, DATES: Comments must be received on contact Pilatus Aircraft Ltd., Customer or before October 2, 2020. Officer, U.S. EPA, Office of Air Quality Technical Support (MCC), P.O. Box 992, CH– Planning and Standards, 109 T.W. ADDRESSES: Submit your comments, 6371 Stans, Switzerland; telephone: +41 Alexander Drive, Mail Code C404–02, identified by Docket ID No. EPA–HQ– (0)41 619 67 74; fax: +41 (0)41 619 67 73; Research Triangle Park, NC 27711, OAR–2020–00292, at http:// email: [email protected]; Attention Docket ID No. EPA–HQ– internet: https://www.pilatus-aircraft.com/en. www.regulations.gov. Follow the online You may review this referenced service instructions for submitting comments. OAR–2020–0292. There will be a delay information at the FAA, Airworthiness Once submitted, comments cannot be in confirming receipt of CBI packages, Products Section, Operational Safety Branch, edited or removed from regulations.gov. because the EPA–RTP office is closed to 901 Locust, Kansas City, Missouri 64106. For The EPA may publish any comment reduce the risk of transmitting COVID– information on the availability of this 19. Due to the office closure, the EPA is material at the FAA, call (816) 329–4148. received to our public docket. Do not submit electronically any information also requesting that parties notify the Issued on August 26, 2020. you consider to be Confidential OAQPS Document Control Officer via Gaetano A. Sciortino, Business Information (CBI) or other telephone at (919) 541–0878 or email at Deputy Director for Strategic Initiatives, information whose disclosure is [email protected] when mailing Compliance & Airworthiness Division, restricted by statute. Multimedia information identified as CBI. Aircraft Certification Service. submissions (audio, video, etc.) must be The EPA continues to carefully and [FR Doc. 2020–19264 Filed 9–1–20; 8:45 am] accompanied by a written comment. continuously monitor information from BILLING CODE 4910–13–P The written comment is considered the the Centers for Disease Control and official comment and should include Prevention (CDC), local area health discussion of all points you wish to departments, and our Federal partners ENVIRONMENTAL PROTECTION make. The EPA will generally not so that we can respond rapidly as AGENCY consider comments or comment conditions change regarding COVID–19. contents located outside of the primary 40 CFR Part 81 submission (i.e., on the Web, Cloud, or FOR FURTHER INFORMATION CONTACT: For [EPA–HQ–OAR–2020–0292; FRL–10013–35– other file sharing system). For general questions concerning this OAR] additional submission methods, the full action, please contact Ashley Keas, U.S. EPA public comment policy, EPA, Office of Air Quality Planning and Redesignation of Certain information about CBI or multimedia Standards, Air Quality Policy Division, Unclassifiable Areas for the 2010 1- submissions, and general guidance on C539–04, Research Triangle Park, NC Hour Sulfur Dioxide (SO2) Primary making effective comments, please visit 27709, by email at [email protected], National Ambient Air Quality Standard https://www2.epa.gov/dockets/ or Gobeail McKinley, U.S. EPA, Office (NAAQS) commenting-epa-dockets. of Air Quality Planning and Standards, AGENCY: Environmental Protection The EPA is temporarily suspending Air Quality Policy Division, C539–04, Agency (EPA). its Docket Center and Reading Room for Research Triangle Park, NC 27709, by ACTION: Proposed rule. public visitors, with limited exceptions, email at [email protected]. The to reduce the risk of transmitting following EPA contacts can answer SUMMARY: The Environmental Protection COVID–19. Our Docket Center staff will questions regarding areas in a particular Agency (EPA) is proposing to continue to provide remote customer EPA Regional office:
U.S. EPA REGIONAL OFFICE CONTACTS
Regional office Affected state Contact Telephone Email
Region V ...... Ohio ...... Mary Portanova ...... (312) 353–5954 [email protected]. Region VI ...... Texas ...... Robert Imhoff ...... (214) 665–7262 [email protected]. Region VII ...... Missouri, Nebraska ...... Will Stone ...... (913) 551–7714 [email protected].
The information can also be reviewed www.regulations.gov under Docket ID I. Background online at https://www.epa.gov/sulfur- No. EPA–HQ–OAR–2020–0292. dioxide-designations and also in the The Clean Air Act (CAA or Act) SUPPLEMENTARY INFORMATION: establishes a process for air quality public docket for these SO 2 Throughout this document ‘‘we,’’ ‘‘us,’’ management through the establishment redesignations at https:// or ‘‘our’’ means the EPA. and implementation of the NAAQS.
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After the promulgation of a new or five factors identified previously, during II. What are the criteria for revised NAAQS, the EPA is required to the Round 2 designations. Specifically, redesignating an area from designate all areas of the country, as discussed further in Section III of this unclassifiable to attainment/ pursuant to section 107(d)(1)–(2) of the document, the Franklin County area in unclassifiable? CAA. For the 2010 SO2 primary Missouri contains the Labadie Energy CAA Section 107(d)(3)(A) provides NAAQS, designations are based on the Center; the Lancaster County area in that the Administrator may notify the EPA’s application of the nationwide Nebraska contains Sheldon Station; the Governor of any state that the analytical approach to, and technical Gallia County area in Ohio contains the designation of an area should be revised assessment of, the weight of evidence Gavin Plant; and the Milam County area ‘‘on the basis of air quality data, for each area, including but not limited in Texas contains the Sandow Plant. planning and control considerations, or to available air quality monitoring data any other air quality-related and air quality modeling results. In The March 20, 2015, guidance also specified the designation category considerations the Administrator deems advance of designating the areas that are 4 definitions to be used in the Round 2 appropriate.’’ The Act further provides the subject of this proposed in section 107(d)(3)(D) that even if the redesignation, the EPA issued updated designations. Specifically, the EPA defined: A ‘‘nonattainment’’ area as an Administrator has not notified a state designations guidance through a March Governor that a designation should be 20, 2015, memorandum from Stephen D. area that the EPA has determined violates the 2010 SO NAAQS based on revised, the Governor of any state may, Page, Director, U.S. EPA, Office of Air 2 on the Governor’s own motion, submit the most recent 3 years of ambient air Quality Planning and Standards, to Air a request to revise the designation of quality monitoring data or an Division Directors, U.S. EPA Regions 1– any area, and the Administrator must appropriate modeling analysis, or that 10 titled, ‘‘Updated Guidance for Area approve or deny the request. In keeping Designations for the 2010 Primary the EPA has determined contributes to with CAA section 107(d)(3)(A), areas Sulfur Dioxide National Ambient Air a violation in a nearby area; an that are redesignated to attainment/ Quality Standard,’’ which contains the ‘‘attainment’’ area as an area that the unclassifiable 5 must meet the factors the EPA evaluated in EPA has determined meets the 2010 SO2 requirements for attainment areas and determining the appropriate NAAQS and does not contribute to a thus must meet the relevant NAAQS. In designations and associated boundaries, violation of the NAAQS in a nearby area addition, the area must not contribute to including: (1) Air quality based on either: (a) the most recent 3 ambient air quality in a nearby area that characterization via ambient monitoring years of ambient air quality monitoring does not meet the NAAQS. See the or dispersion modeling results; (2) data from a monitoring network in an definitions for nonattainment area, emissions-related data; (3) meteorology; area that is sufficient to be compared to attainment area, and unclassifiable area (4) geography and topography; and (5) the NAAQS per the EPA interpretations in CAA section 107(d)(1)(A)(i)–(iii). jurisdictional boundaries. The guidance in the Monitoring TAD, or (b) an In its designations under the 2010 SO2 also references the EPA’s non-binding appropriate modeling analysis. As NAAQS, the EPA has generally defined Monitoring Technical Assistance discussed further in Section III of this an attainment/unclassifiable area as an Document (Monitoring TAD) that document, the EPA was unable to area that meets the NAAQS and does existed at that time.1 determine whether the areas in not contribute to ambient air quality in The EPA completed the first set of Missouri, Nebraska, Ohio, and Texas a nearby area that does not meet the initial area designations for the 2010 1- that are the subject of this action, met NAAQS. We are proposing to find that hour SO2 NAAQS in 2013 (Round 1). the definition of a nonattainment area or these specific areas now meet this Pursuant to a March 2, 2015, consent the definition of an attainment area definition of attainment/unclassifiable decree and court-ordered schedule, the based on the available information at based on the available valid monitoring EPA finalized a second set of initial area the time of the Round 2 designations. As data in each area that demonstrates
designations for the 2010 1-hour SO2 a result, the EPA designated each of attainment, i.e., no violations of and not NAAQS in 2016 (Round 2). The March these four areas as unclassifiable in the contributing to a nearby area that is not 2, 2015, consent decree identified the Round 2 designations published on July meeting the 2010 1-hour SO2 NAAQS. following emissions criteria such that 12, 2016, and December 13, 2016.2 The EPA finds this information the EPA must designate, in Round 2, an sufficient for the purposes of Detailed rationale, analyses, and other area surrounding any stationary source redesignating an area from information supporting our initial which had (a) annual emissions in 2012 unclassifiable to attainment/ designation for these four areas can be exceeding 16,000 tons of SO2, or (b) both unclassifiable, similar to initial an annual average emissions rate of at found in the intended and final Round 2 designations’ technical support least 0.45 pounds of SO2 per one million 4 While CAA section 107(d)(3)(E) also lists British thermal units (lbs SO2/mmBTU), documents for Missouri, Nebraska, specific requirements for redesignations, those according to the EPA’s Clean Air Ohio, and Texas, respectively. These requirements only apply to redesignations of Markets Division Database, and annual Round 2 documents, along with all nonattainment areas to attainment and, therefore, are not applicable in the context of a redesignation emissions of at least 2,600 tons of SO2 other supporting materials for the initial of an area from unclassifiable to attainment/ in 2012. Areas in Missouri, Nebraska, 2010 1-hour SO2 primary NAAQS unclassifiable. Ohio, and Texas, each contained one designations for these areas, can be 5 Historically, the EPA has designated most areas source that met these Round 2 criteria. found on the EPA’s SO2 designations that do not meet the definition of nonattainment as website.3 Specific technical support ‘‘unclassifiable/attainment.’’ The EPA has reversed The EPA evaluated each area, using the the order of the label to be ‘‘attainment/ documents (TSDs) for the covered states unclassifiable’’ to better convey the definition of the 1 The version of the EPA’s ‘‘SO2 NAAQS are referenced and linked in later designation category and so that the category is Designations Source-Oriented Monitoring Technical sections of this notice. more easily distinguished from the separate Assistance Document’’ (Monitoring TAD) available unclassifiable category. See 83 FR 1098 (January 9, at the time of the Round 2 designations action was 2018) and 83 FR 25776 (June 4, 2018). The EPA released in December 2013. The current version of 2 See actions published on July 12, 2016 (81 FR reserves the ‘‘attainment’’ category for when the the Monitoring TAD was released in February 2016 45039) and December 13, 2016 (81 FR 89870). EPA redesignates a nonattainment area that has and superseded the version released in December 3 https://www.epa.gov/sulfur-dioxide- attained the relevant NAAQS and has an approved 2013. designations. maintenance plan.
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designations, where the inquiry is also inconclusive and therefore the EPA was Pursuant to requirements under the whether the area is factually attaining unable to make a determination of the DRR to characterize the air quality in the NAAQS, based on actual and area’s attainment status. For each of the area around Labadie, Missouri current air quality data. Such these areas, the states selected the identified existing monitors and redesignations are functionally similar monitoring pathway for purposes of air installed additional monitors around to initial designations and are not quality characterization pursuant to the Labadie and began collecting data at subject to CAA section 107(d)(3)(E), EPA’s SO2 Data Requirements Rule these monitors by January 1, 2017.12 which, amongst other things, requires (DRR) (80 FR 51052, August 21, 2015). As part of this proposed action, the attainment to be due to permanent and For each of these areas, the state either EPA considered design values for air enforceable measures and which identified existing SO2 monitors and/or quality monitors in Franklin and St. requires a demonstration that the area installed and began operating new Charles Counties, in the Labadie area, will maintain the NAAQS for 10 years. monitors in accordance with the DRR.9 by assessing the most recent 3 For the areas in Nebraska, Ohio, and These monitors now have complete 3- consecutive years (i.e., 2017–2019) of Texas, those states have submitted year design values for the 2017–2019 quality-assured, certified ambient air formal requests 6 to the EPA to period. Specifically, each area now has quality data in the EPA Air Quality redesignate those areas from at least one monitor with a complete, System (AQS) using data from Federal unclassifiable to attainment/ valid 3-year design value that is Reference Method (FRM) and Federal 7 unclassifiable. Therefore, the EPA is attaining the 2010 1-hour SO2 NAAQS. Equivalent Method (FEM) monitors that proposing in this action to approve A. Franklin and St. Charles Counties, are sited and operated in accordance those requests and redesignate the areas 13 Missouri with 40 CFR parts 50 and 58. based on the available monitoring data Procedures for using monitored air in those areas. For the area in Missouri, The Franklin County area contains a quality data to determine whether a for which the EPA has not received a stationary source, the Ameren Labadie violation has occurred are given in 40 formal request to redesignate the area, Energy Center (Labadie), that met the CFR part 50 Appendix T, as revised in the EPA is concurrently notifying the Round 2 criteria, discussed in Section I the 2010 SO NAAQS rulemaking. The of this document, requiring the EPA to 2 Governor of its recommendation that the 2010 1-hour SO2 NAAQS is met when area be redesignated to attainment/ designate this area in 2016, under the the design value is 75 parts per billion unclassifiable per CAA section March 2, 2015, court-ordered schedule. (ppb) or less. Whenever several 107(d)(3)(A), based on the currently In its September 25, 2015, submission, monitors are located in an area, the available information that demonstrates regarding the second round of design value for the area is determined attainment of the 2010 1-hour SO2 designations, Missouri recommended by the monitor with the highest valid NAAQS.8 The EPA is issuing this that the area surrounding Labadie be design value. Table 1 contains the 2017– proposal concurrently with notification designated as unclassifiable. After 2019 design values for the monitors in to the state in anticipation of the review of all available information at this area. The monitor with the highest statutory timeframe provided under that time, including modeling provided design value is the North site (Site ID: CAA section 107(d)(3)(B) and (C). by the state, Ameren, and Sierra Club 29–183–9004). Although one of the with differing results and uncertainties, monitors in this area, the Valley site III. What is the EPA’s rationale for the EPA was unable to determine the proposing to redesignate these areas? (Site ID: 29–071–9001), does not have a area’s attainment status. Therefore, the valid design value for this period, the As previously mentioned, the EPA EPA designated portions of Franklin remaining three monitors all have valid designated each of these areas as and St. Charles Counties as design values and are all attaining the unclassifiable in the Round 2 unclassifiable in Round 2 of NAAQS. Therefore, data collected at designations published on July 12, 2016 designations for the 2010 1-hour SO2 10 11 these monitors indicate that this area is (intended designations) and December primary NAAQS. in attainment of the 2010 1-hour SO 13, 2016 (final designations). As 2 NAAQS. discussed in this section, information 9 Analyses used to support the siting of these available for each of these areas at the monitors are discussed in each state’s 2016 or 2017 time of the Round 2 designations was annual monitoring network plans. evaluate the monitoring data for the area 10 For more information on the EPA’s Round 2 anticipated to be newly available at that time. Sierra designations, see: https://www.epa.gov/sulfur- Club also filed a petition for judicial review of the 6 These redesignation requests are included in the dioxide-designations/epa-completes-second-round- Round 2 designations that included this area; that docket for this action. sulfur-dioxide-designations For the intended and litigation is currently in abeyance in the D.C. 7 Ohio’s April 27, 2020, letter requested that the final TSDs specific to Missouri, see: https:// Circuit. Finalizing this proposed action would Gallia County area be designated attainment/ www.epa.gov/sites/production/files/2016-03/ constitute the evaluation contemplated by the unclassifiable as part of the EPA’s Round 4 documents/mo-epa-tsd-r2.pdf and https:// EPA’s January 18, 2017, letter. This letter is designation process. As the Gallia County area was www.epa.gov/sites/production/files/2016-07/ available on our website here: https://www.epa.gov/ already designated unclassifiable in Round 2, the documents/r7_mo_final_designation_tsd_ sulfur-dioxide-designations/reconsideration- EPA is treating Ohio’s April 27, 2020, letter as a 07012016.pdf. requests-areas-illinois-missouri-and-ohio. redesignation request pursuant to CAA section 11 On September 8, 2016, Sierra Club submitted 12 More details on the analyses used to support 107(d)(3)(D). a petition for reconsideration of the final the monitor placement are contained in the state’s 8 On June 26, 2020, the Missouri Department of unclassifiable designation of the Franklin County 2016 annual monitoring network plan. 13 Natural Resources posted a redesignation request area. In a January 18, 2017, letter, the EPA SO2 air quality data are available from the for the Franklin County area on its website for responded to Sierra Club’s petition for EPA’s website at https://www.epa.gov/outdoor-air- public comment as part of the state’s public reconsideration, stating that the EPA intended to quality-data. SO2 air quality design values are process. Missouri expects to submit the request to initiate a new rulemaking process to be concluded available at https://www.epa.gov/air-trends/air- the EPA in the coming months. by December 31, 2020, in which the Agency would quality-design-values.
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TABLE 1—2010 SO2 NAAQS DESIGN VALUES FOR THE FRANKLIN COUNTY AREA
2017 99th 2018 99th 2019 99th 2017–2019 AQS site ID Monitor location percentile percentile percentile design value (latitude, longitude) (ppb) (ppb) (ppb) (ppb)
29–071–9001 * Valley (38.572522, –90.796911) ...... 25 38 21 28 29–071–9002 Southwest (38.52814, –90.86326) ...... 22 20 30 24 29–183–9002 Northwest (38.581799, –90.865528) ...... 21 17 19 19 29–183–9004 North (38.595607, –90.830618) ...... 30 22 36 29 * This monitor does not have a valid design value, but all remaining monitors in the area do have valid design values that are below the level of the NAAQS.
Under the EPA’s authority to B. Lancaster County, Nebraska entirety of Lancaster County, containing undertake a redesignation action 14 The Lancaster County area contains a Sheldon Station, be redesignated to under CAA section 107(d)(3)(A), and stationary source, the Nebraska Public attainment/unclassifiable based on the reviewing all available information, we Power District’s (NPPD) Sheldon Station newly available monitoring information, are proposing to find that the 3 years of (Sheldon), that met the Round 2 criteria, which demonstrates attainment of the monitored ambient SO2 data from the discussed in Section I of this document, 2010 1-hour SO2 NAAQS. To evaluate existing and new monitors adequately requiring the EPA to designate this area Nebraska’s redesignation request, the characterize the SO2 air quality in in 2016, under the March 2, 2015, court- EPA considered the design value for the Franklin and St. Charles Counties and ordered schedule. In its September 18, air quality monitor in Lancaster County, demonstrate attainment of the 2010 1- 2015, submission regarding the second in the Sheldon area, by assessing the hour SO2 NAAQS in the same area. round of designations, Nebraska most recent 3 consecutive years (i.e., Specifically, the data from these recommended that the area surrounding 2017–2019) of quality-assured, certified monitors indicate there are no violations Sheldon be designated as unclassifiable. ambient air quality data in the EPA AQS in this area. Additionally, there is no After review of all available information using data from FRM and FEM monitors evidence of monitored or modeled at that time, including modeling results that are sited and operated in violations in the surrounding counties 15 from the state and Sierra Club with accordance with 40 CFR parts 50 and differing results and uncertainties, the such that the source is not contributing 58.19 Procedures for using monitored air EPA was unable to determine the area’s to any nearby area that does not meet quality data to determine whether a attainment status and designated the NAAQS. The EPA is, therefore, Lancaster County as unclassifiable in violation has occurred are given in 40 proposing to redesignate the portions of Round 2 of designations for the 2010 1- CFR part 50 Appendix T, as revised in Franklin and St. Charles Counties in 16 the 2010 SO2 NAAQS rulemaking. As hour SO2 primary NAAQS. Missouri that were designated as Pursuant to requirements under the noted previously, the 2010 1-hour SO2 unclassifiable in July 2016, to DRR to characterize the air quality in NAAQS is met when the design value attainment/unclassifiable based on the the area around Sheldon, Nebraska is 75 ppb or less. Table 2 contains the currently available information that installed a new monitor near the source 2017–2019 design value for this area. demonstrates attainment of the 2010 1- to begin collecting data at this monitor Data collected at this monitor indicate 17 hour SO2 NAAQS. by January 1, 2017. that this area is in attainment of the On May 6, 2020, Nebraska submitted NAAQS. a letter 18 to the EPA requesting that the
TABLE 2—2010 SO2 NAAQS DESIGN VALUE FOR THE LANCASTER COUNTY AREA
2017 99th 2018 99th 2019 99th 2017–2019 AQS site ID Monitor location percentile percentile percentile design value (latitude, longitude) (ppb) (ppb) (ppb) (ppb)
31–109–0025 SW 42nd Street (40.554760, ¥96.780350) ...... 44 10 33 29
After reviewing Nebraska’s request adequately characterize the SO2 air indicate there are no violations in this under CAA section 107(d)(3)(D) and all quality in Lancaster County and area. Additionally, there is no evidence available information, we are proposing demonstrate attainment of the 2010 1- of monitored or modeled violations in to find that the 3 years of monitored hour SO2 NAAQS in the same area. the surrounding counties such that the ambient SO2 data from the new monitor Specifically, the data from this monitor source is not contributing to any nearby
14 On June 26, 2020, the Missouri Department of 16 For more information on the EPA’s Round 2 17 More details on the analyses used to support Natural Resources posted a redesignation request designations, see https://www.epa.gov/sulfur- the monitor placement are contained in the state’s for the Franklin County area on its website for dioxide-designations/epa-completes-second-round- 2016 annual monitoring network plan. public comment as part of the state’s public sulfur-dioxide-designations. For the intended and 18 This letter is included in the docket for this process. Missouri expects to submit the request to final TSDs specific to Nebraska, see https:// the EPA in the coming months. action. www.epa.gov/sites/production/files/2016-03/ 19 15 While a portion of neighboring Jefferson SO2 air quality data are available from the County is currently designated as nonattainment for documents/ne-epa-tsd-r2.pdf and https:// EPA’s website at https://www.epa.gov/outdoor-air- the 2010 SO2 NAAQS, the EPA determined in a www.epa.gov/sites/production/files/2016-07/ quality-data. SO2 air quality design values are _ _ _ _ _ final action published on September 13, 2017, that documents/r7 ne final designation tsd available at https://www.epa.gov/air-trends/air- this area is now attaining the NAAQS per the EPA’s 06302016.pdf. quality-design-values. clean data policy. See 82 FR 42945.
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area that does not meet the NAAQS. The including modeling provided by both request, the EPA considered the design EPA is therefore proposing to approve the state and Sierra Club with differing values for the air quality monitors in Nebraska’s redesignation request and results and uncertainties, the EPA was Gallia County, Ohio and Mason County, proposing to redesignate the entirety of unable to determine the area’s West Virginia, in the Gallia County area, Lancaster County that was designated as attainment status. Therefore, the EPA by assessing the most recent 3 unclassifiable in July 2016, to designated the entirety of Gallia County consecutive years (i.e., 2017–2019) of attainment/unclassifiable based on the and a portion of Meigs County as quality-assured, certified ambient air currently available information that unclassifiable in Round 2 of the quality data in the EPA AQS using data demonstrates attainment of the 2010 1- designations for the 2010 1-hour SO2 from FRM and FEM monitors that are 20 21 hour SO2 NAAQS. primary NAAQS. sited and operated in accordance with Pursuant to requirements under the 25 C. Gallia and Meigs Counties, Ohio DRR to characterize the air quality in 40 CFR parts 50 and 58. Procedures The Gallia County area contains a the area around the Gavin plant and for using monitored air quality data to stationary source, the General James M. another nearby power plant,22 Ohio determine whether a violation has Gavin power plant (Gavin plant), that installed four monitors in Gallia County, occurred are given in 40 CFR part 50 met the Round 2 criteria, discussed in Ohio and Mason County, West Virginia, Appendix T, as revised in the 2010 SO2 Section I of this document, requiring the to begin collecting data at these NAAQS rulemaking. Whenever multiple EPA to designate this area in 2016, monitors by January 1, 2017.23 monitors are located in an area, the under the March 2, 2015, court-ordered On April 27, 2020, Ohio submitted a design value for the area is determined schedule. In its September 16, 2015, letter 24 to the EPA requesting that the by the monitor with the highest valid submission, regarding the second round entirety of Gallia County and the design value. Table 3 contains the 2017– of designations, Ohio recommended that unclassifiable portion of Meigs County 2019 design values for the Gallia County the area surrounding the Gavin plant be be redesignated to attainment/ area. Data collected at these monitors designated as attainment based on a unclassifiable based on monitoring indicate that this area attains the 2010 modeling demonstration. After review information demonstrating attainment. 1-hour SO2 NAAQS set at 75 ppb. of all available information at that time, To evaluate Ohio’s redesignation
TABLE 3—2010 SO2 NAAQS DESIGN VALUES FOR THE GALLIA COUNTY AREA
2017 99th 2018 99th 2019 99th 2017–2019 AQS site ID Monitor location percentile percentile percentile design value (latitude, longitude) (ppb) (ppb) (ppb) (ppb)
39–053–0005 Ridge monitor 583 Honeysuckle Dr. (38.89495, 34 38 54 42 ¥82.14893). 39–053–0004 Cheshire school monitor Watson Grove Rd. (38.95018, 27 41 54 41 ¥82.12211). 39–053–0006 Guiding Hand monitor 323 SR 7 North (38.949450, 38 28 54 40 ¥82.110400). 54–053–0001 Lakin monitor Mason County, WV (38.95649, ¥82.08866) 35 57 61 51
After reviewing Ohio’s request under contributing to any nearby area that Generation Company’s Sandow 5 CAA section 107(d)(3)(D) and all does not meet the NAAQS. The EPA is Generating Plant (Sandow plant), that available information, we are proposing therefore proposing to approve Ohio’s met the Round 2 criteria, discussed in to find that the 3 years of monitored redesignation request and proposing to Section I of this document, requiring the ambient SO2 data from the four new redesignate the entirety of Gallia County EPA to designate this area in 2016, monitors adequately characterize the and the portion of Meigs County, that under the March 2, 2015, court-ordered SO2 air quality in Gallia and Meigs were designated as unclassifiable in July schedule. In its September 18, 2015, Counties and demonstrate attainment of 2016, to attainment/unclassifiable based submission, regarding Round 2 of the 2010 1-hour SO2 NAAQS in the on the currently available information designations, Texas noted that it was same area. Specifically, the data from that demonstrates attainment of the not able to model all the sources these monitors indicate there are no 2010 1-hour SO2 NAAQS. impacted in that round of designations violations in this area. Additionally, and therefore did not provide a there is no evidence of monitored or D. Milam County, Texas technical analysis for the Milam County modeled violations in the surrounding The Milam County area contains a area nor did the state provide an counties such that the source is not stationary source, the Luminant updated recommendation for this area
20 For more information on EPA’s Round 2 that the EPA intended to initiate a new rulemaking 23 More details on the analyses used to support designations, see https://www.epa.gov/sulfur- process to be concluded by December 31, 2020, in the monitor placement are contained in the state’s dioxide-designations/epa-completes-second-round- which the Agency would evaluate the monitoring 2016 and 2017 annual monitoring network plans. sulfur-dioxide-designations For the intended and data for the area anticipated to be newly available 24 This letter is included in the docket for this final TSDs specific to Ohio, see https:// at that time. Finalizing this proposed action would action. As discussed in Section II of this document, www.epa.gov/sites/production/files/2016-03/ constitute the evaluation contemplated by the documents/oh-epa-tsd-r2.pdf and https:// the EPA is treating Ohio’s April 27, 2020, letter as EPA’s January 18, 2017, letter. This letter is www.epa.gov/sites/production/files/2016-07/ a request for redesignation under CAA section available on our website https://www.epa.gov/ documents/r5_oh_final_designation_tsd_ 107(d)(3)(D). sulfur-dioxide-designations/reconsideration- 06302016.pdf. 25 requests-areas-illinois-missouri-and-ohio. SO2 air quality data are available from EPA’s 21 On January 6, 2017, Sierra Club submitted a website at https://www.epa.gov/outdoor-air-quality- 22 Kyger Creek Station is approximately 2.5 petition for reconsideration of the final data. SO air quality design values are available at unclassifiable designation of the Gallia County area. kilometers southwest of the Gavin plant and was 2 https://www.epa.gov/air-trends/air-quality-design- In a January 18, 2017, letter, the EPA responded to also a source required to be characterized under the values. Sierra Club’s petition for reconsideration, stating EPA’s SO2 Data Requirements Rule.
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but rather reiterated its previous collecting data at this monitor by using data from FRM and FEM monitors recommendation for areas without January 1, 2017.27 that are sited and operated in existing monitors to be designated as On June 26, 2020, Texas submitted a accordance with 40 CFR parts 50 and unclassifiable/attainment. After review letter 28 to the EPA requesting that the 58.29 Procedures for using monitored air of all available information at that time, entirety of Milam County be quality data to determine whether a the EPA was unable to determine the redesignated to attainment/ violation has occurred are given in 40 area’s attainment status based on the unclassifiable based on the newly CFR part 50 Appendix T, as revised in lack of information and designated the available monitoring information which the 2010 SO NAAQS rulemaking. The demonstrates attainment. To evaluate 2 entirety of Milam County, Texas, as 2010 1-hour SO NAAQS is met when unclassifiable in Round 2 of Texas’ redesignation request, the EPA 2 the design value is 75 ppb or less. Table designations for the 2010 1-hour SO considered the design value for the air 2 4 contains the 2017–2019 design value primary NAAQS.26 quality monitor in Milam County, in the Pursuant to requirements under the Sandow area, by assessing the most for this area. Data collected at this DRR to characterize the air quality in recent 3 consecutive years (i.e., 2017– monitor indicate that this area is in the area around Sandow, Texas installed 2019) of quality-assured, certified attainment of the NAAQS. a new monitor near Sandow to begin ambient air quality data in the EPA AQS
TABLE 4—2010 SO2 NAAQS DESIGN VALUES FOR THE MILAM COUNTY AREA
2017 99th 2018 99th 2019 99th 2017–2019 AQS site ID Monitor location percentile percentile percentile design value (latitude, longitude) (ppb) (ppb) (ppb) (ppb)
48–331–1075 3990 John D Harper Road (30.569534, ¥97.076294) ...... 37 4 2 14
Texas’ redesignation request to the IV. Proposed Action V. Statutory and Executive Order EPA also indicated that the Sandow Reviews The EPA is proposing to redesignate plant permanently ceased operations in Under CAA section 107(d)(3), January 2018. The EPA independently to attainment/unclassifiable the unclassifiable portions of Franklin and redesignation of an area to attainment/ confirmed the plant is no longer unclassifiable is an action that affects St. Charles Counties in Missouri; the permitted to operate.30 the status of a geographical area and entirety of Lancaster County in After reviewing Texas’ request under does not impose any additional Nebraska; the entirety of Gallia County regulatory requirements on sources CAA section 107(d)(3)(D) and all and the unclassifiable portion of Meigs available information, we are proposing beyond those imposed by state law. A County in Ohio; and the entirety of redesignation to attainment/ to find that the 3 years of monitored Milam County in Texas. Additionally, ambient SO2 data from the new monitor unclassifiable does not in and of itself the EPA is proposing to approve create any new requirements. adequately characterize the SO2 air requests for redesignation from the quality in Milam County and Accordingly, this proposed action states of Nebraska, Ohio, and Texas. For demonstrate attainment of the 2010 1- merely proposes to redesignate an area the area in Missouri, the EPA is hour SO NAAQS in the same area. to attainment/unclassifiable and does 2 initiating this redesignation action Specifically, the data from this monitor not impose additional requirements. For under the authority of CAA section that reason, this proposed action: indicate there are no violations in this 107(d)(3)(A). As discussed in prior • Is exempt from review by the Office area. Additionally, there is no evidence sections, this proposed action is based of Management and Budget under of monitored or modeled violations in on the currently available monitoring Executive Orders 12866 (58 FR 51735, the surrounding counties such that the data for these areas that demonstrate October 4, 1993) and 13563 (76 FR 3821, source is not contributing to any nearby attainment of the 2010 1-hour SO2 January 21, 2011); area that does not meet the NAAQS. The primary NAAQS. If finalized, this • Is not an Executive Order 13771 (82 EPA is therefore proposing to approve redesignation action and approval of the FR 9339, February 2, 2017) regulatory Texas’ redesignation request and redesignation requests would change action because it is exempt under proposing to redesignate the entirety of the legal designation for these listed Executive Order 12866; Milam County, that was designated as • Does not impose an information unclassifiable in December 2016, to areas, found at 40 CFR part 81, from unclassifiable to attainment/ collection burden under the provisions attainment/unclassifiable based on the of the Paperwork Reduction Act (44 unclassifiable for the 2010 1-hour SO currently available information that 2 U.S.C. 3501 et seq.); demonstrates attainment of the 2010 1- primary NAAQS. • Is not subject to the Regulatory hour SO2 NAAQS. Flexibility Act (5 U.S.C. 601 et seq.);
26 For more information on EPA’s Round 2 27 More details on the analyses used to support Environmental Quality (TCEQ), Luminant requested designations, see https://www.epa.gov/sulfur- the monitor placement are contained in the state’s to void Sandow permits 4980, PSDTX28, dioxide-designations/epa-completes-second-round- 2016 annual monitoring network plan. PSDTX28M1, 16684, 39718, 45425, 72521, 97146, sulfur-dioxide-designations. For the intended and 28 This letter is included in the docket for this and 125855. The remaining permits (NSR Permit final TSDs specific to Texas, see https:// action. 5473, PBR 87631, PBR 94625 and Standard Permit 29 www.epa.gov/sites/production/files/2016-03/ SO2 air quality data are available from EPA’s 108271) are material handling permits maintained website at https://www.epa.gov/outdoor-air-quality- while closure activities are completed, such as coal documents/tx-epa-tsd-r2.pdf and https:// data. SO2 air quality design values are available at piles, silos, and conveyors. In a letter dated July 19, www.epa.gov/sites/production/files/2016-11/ https://www.epa.gov/air-trends/air-quality-design- 2018, from the TCEQ to Luminant, TCEQ verified ______documents/texas 4 deferred luminant tsd final values. the air quality federal operating permit O54 for the docket.pdf 30 In a letter dated February 14, 2018, from Sandow plant was voided. These letters are Luminant to the Texas Commission on included in the docket for this action.
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• Does not contain any unfunded Second, the Commission seeks comment Exemption to Ex Parte Rules for mandate or significantly or uniquely on a proposal to extend the exemption Government-to-Government Tribal affect small governments, as described to its ex parte rules for communications Consultations in the Unfunded Mandates Reform Act with certain program administrators, 2. The Commission’s existing ex parte of 1995 (Pub. L. 104–4); such as the Universal Service • rules have no exemptions or provisions Is not subject because it does not Administrative Company, to include the tailored to presentations to or from have Federalism implications as Toll-Free Numbering Administrator and federally recognized Tribal Nations. specified in Executive Order 13132 (64 the Reassigned Numbers Database Throughout this Notice of Proposed FR 43255, August 10, 1999); Administrator, and to clarify the • Rulemaking, ‘‘Tribes’’ or ‘‘Tribal Is not subject to Executive Order conditions under which this exemption Nations’’ mean those Nations, including 13045 (62 FR 19885, April 23, 1997) applies. Third, the Commission seeks Alaska Native Villages, that have been because it does not establish an comment on a proposal to require that granted federal recognition. Thus, in a environmental standard intended to all written ex parte presentations and permit-but-disclose proceeding, written mitigate health or safety risks; written summaries of oral ex parte • presentations and summaries of oral Is not a significant regulatory action presentations (other than presentations presentations between a Tribal subject to Executive Order 13211 (66 FR that are permitted during the Sunshine representative and Commission staff 28355, May 22, 2001); period) be submitted before the • must be filed as prescribed in the rules, Is not subject to requirements of Sunshine period begins and to require unless an exemption applies. In a section 12(d) of the National that replies to these ex parte restricted proceeding, ex parte Technology Transfer and Advancement presentations be filed within the first presentations are forbidden, and those Act of 1995 (15 U.S.C. 272 note) because day of the Sunshine period. presentations that are permitted must be this action does not involve technical DATES: Comments due on or before filed or summarized in the record. In standards; • October 2, 2020; reply comments due on addition, the Sunshine period Will not have disproportionate or before November 2, 2020. prohibitions apply fully to presentations human health or environmental effects to or from representatives of Tribal under Executive Order 12898 (59 FR FOR FURTHER INFORMATION CONTACT: Mr. Max Staloff of the Office of General Nations. 7629, February 16, 1994); and 3. Outside the Tribal context, the • Counsel, at (202) 418–1764, or Does not have Tribal implications Commission has created exemptions [email protected]. as specified by Executive Order 13175 from the ex parte rules for (65 FR 67249, November 9, 2000) SUPPLEMENTARY INFORMATION: This is a communications with particular parties because no tribal lands are located summary of the Commission’s Notice of where the circumstances require a within the areas covered in this action Proposed Rulemaking, GC Docket No. greater degree of confidentiality than the and the redesignation does not create 20–221, FCC 20–92, adopted on July 8, rules would otherwise permit. Many of new requirements. The EPA notes this 2020 and released on July 9, 2020. The these exemptions are subject to proposed action will not impose full text of this document is available for conditions appropriate to the substantial direct costs on Tribal public inspection by downloading the circumstances of each exemption. For governments or preempt Tribal law. text from the Commission’s website at example, presentations involving a Anne Austin, https://www.fcc.gov/document/ military or foreign affairs function of the Principal Deputy Assistant Administrator, updating-commissions-ex-parte-rules. United States or classified security Office of Air and Radiation. Alternative formats are available for information are exempt from disclosure people with disabilities (Braille, large [FR Doc. 2020–17548 Filed 9–1–20; 8:45 am] requirements and Sunshine restrictions print, electronic files, audio format) by BILLING CODE 6560–50–P without limitation. Presentations to or sending an email to [email protected] or from an agency or branch of the Federal calling the Commission’s Consumer and Government involving a matter of Governmental Affairs Bureau at (202) shared jurisdiction with the FEDERAL COMMUNICATIONS 418–0530 (voice), (202) 418–0432 COMMISSION Commission are similarly exempt, but (TTY). this exemption is subject to the 47 CFR Part 1 Synopsis condition that the Commission disclose any new factual information adduced [GC Docket No. 20–221; FCC 20–92; FRS 1. The Commission seeks comment on from these presentations that it relies on 16967] three proposals: (1) Exempting from its decision-making. In the case of Updating the Commission’s Ex Parte Commission ex parte rules certain presentations requested by the Rules government-to-government Commission or staff to clarify or adduce consultations between Commission staff evidence or to resolve issues, any new AGENCY: Federal Communications and leaders and official representatives information elicited must ordinarily be Commission. of federally recognized Tribal Nations; promptly disclosed, subject to certain ACTION: Proposed rule. (2) clarifying the ex parte exemption for exceptions. In yet another variant, if an the administrators of certain exempt presentation is made that SUMMARY: In this document, the Commission programs and expanding directly relates to an emergency in Commission begins a new proceeding to that exemption to include the Toll-Free which the safety of life is endangered or consider several updates to the Numbering Administrator and the substantial loss of property is Commission’s ex parte rules. First, the Reassigned Numbers Database threatened, the presentation or a Commission seeks comment on a Administrator; and (3) modifying the summary must be promptly placed in proposal to exempt from its ex parte filing deadlines for presentations made the record and disclosed to other parties rules, in certain proceedings, shortly before the beginning of the ‘‘as appropriate.’’ government-to-government Sunshine period and replies to those 4. The relationship between the consultations between the Commission presentations as set forth in 47 CFR United States Government and federally and federally recognized Tribal Nations. 1.1206(b)(2). recognized Tribal Nations is unique.
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The Federal Government has a trust proceeding. If the Commission were to represent its interests in the relevant relationship with Indian Tribes, and this desire, on its own initiative, to rely on matter. It also would not encompass a historic relationship requires the information presented during Tribal presentation to or from a Tribal Federal Government to adhere to certain consultation, the Commission would government official that is not in the fiduciary standards in its dealings with coordinate with the Tribal government nature of consultation; i.e., involving a Indian Tribes. Certain statutes also and obtain its consent to disclose such matter significantly or uniquely impose legal obligations on the information. If such consent were affecting the Tribal government, its land Commission to consult with Tribal denied, the Commission would forgo and resources. For example, it would governments regarding categories of reliance on the information. Finally, not include a presentation by a Tribal actions that could affect Tribal interests. new information could not be added to leader regarding the leader’s personal In recognition of this relationship, the the record during the Sunshine period financial interests. The Commission Commission has established a policy to by a Tribal government (like any other seeks comment on whether these consult with Tribal governments, to the party) unless requested or authorized by conditions appropriately and extent practicable, prior to the Commission or its staff, or unless sufficiently limit the scope of the implementing any regulatory action or another exception were to apply. exemption to government-to- policy that will significantly or uniquely 6. The Commission seeks comment on government consultation. Is further affect Tribal governments, their land this proposal. As an initial matter, the specificity needed in defining the scope and resources. The consultation process Commission seeks comment on whether of the exemption, and if so, how should implies a frank exchange of information codifying an exemption for all permit- the definition be refined? and views, with the goal of reaching but-disclose proceedings would be more 8. The Commission further seeks common understandings to the extent efficient than continuing to modify the comment on the proposal that any practicable. ex parte rules on a case-by-case basis. In information a Tribal government particular, while not all rulemakings or presents during an exempt consultation, 5. In light of this unique relationship other permit-but-disclose proceedings including factual information, views, and to facilitate consultation, the implicate issues that significantly or and arguments, would need to be Commission proposes to adopt a new uniquely affect Tribal government disclosed on the record in order for the exemption for government-to- interests, it is not always possible to Commission to rely on that information government consultations with federally predict in which proceedings such when rendering a decision in any recognized Tribal Nations that relate to issues will arise. By proposing an proceeding. The Commission believes permit-but-disclose proceedings. While exemption that would apply to all this proposed disclosure requirement the Commission encourages Tribal permit-but-disclose proceedings, the will ensure that Commission decisions Nations and their representatives, like Commission aims to avoid the need to are transparent and that all parties will other parties, to file comments and reply promulgate special procedures during have a reasonable opportunity to comments that may be considered on the course of a proceeding when Tribal respond to information of decisional the record in such proceedings, the interests come to light such that significance, as required under the Commission recognizes their interest in government-to-government consultation Administrative Procedure Act, while consulting on a government-to- is appropriate. Furthermore, the preserving the ability of Tribal government basis without concern about Commission is concerned that it may governments to consult with the documenting such consultations on the inhibit consultation, and impose Commission in confidence if they so rulemaking record in every case. burdens on both Tribal governments choose. To the extent otherwise Previously, the Commission has and Commission staff, if the parties permitted under Commission rules, a modified the ex parte rules on a case- must be concerned about whether Tribal Nation could submit confidential by-case basis in rulemaking proceedings anything said during potentially wide- materials in the record with a request that have significantly or uniquely ranging consultations might implicate that they be withheld from public affected Tribal Nations to enable issues in any permit-but-disclose inspection. Does this proposed government-to-government consultation proceeding. The Commission invites disclosure provision effectively advance outside of the public record while also comment on whether an exemption both of these ends and, if not, what ensuring that any facts and arguments applicable to all permit-but-disclose alternative would serve those ends on which the Commission relies in its proceedings would appropriately and better? In addition, the Commission decision-making process are placed in effectively avoid these harms. Are there proposes that if the Commission wishes the record. Based on the Commission’s offsetting considerations that counsel on its own initiative to rely on experience in these proceedings, the against applying this exemption to all information originally presented by a Commission proposes to codify this permit-but-disclose proceedings? Are Tribal Nation during exempt exemption for all permit-but-disclose there any classes of rulemakings or consultation, the Commission would proceedings. Specifically, under this other permit-but-disclose proceedings coordinate with the Tribal government proposed exemption, Commission staff that should be excluded from the before disclosing such information and and authorized representatives of Tribal exemption, and if so, how can they be would disregard any material it does not governments could consult on a identified? want disclosed. The Commission invites government-to-government basis 7. Consistent with Commission comment on this proposal. without having to disclose the fact or policy, the Commission proposes to 9. The Commission also seeks content of their discussions through an limit the exemption to presentations in comment on the timing of disclosure. ex parte filing in the record of any the course of consultation with leaders Under the exemption that the permit-but-disclose proceedings to or authorized representatives of Tribal Commission proposes, outside of the which they relate. If, however, a Tribe governments. Thus, it would not Sunshine period, Tribal governments were to wish the Commission to rely on encompass presentations to or from an could submit information originally views or materials presented during individual Tribal member, or an presented during an exempt such consultations in its decision- employee or official of a Tribally owned consultation into the record at any time. making, it would need to disclose the business, unless that person has been Thus, a Tribe that delays submitting relevant information in the record of the authorized by the Tribal government to such information into the record (like
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any party that chooses to wait until late 11. The Commission does not propose 13. The Commission believes that in the process to make an ex parte to extend any exemption from the ex given the unique nature of each presentation) would bear the risk of parte rules for presentations made in restricted proceeding, it will be most acting too late for the Commission to government-to-government consultation efficient for staff to continue modifying consider the information while to restricted proceedings. The the ex parte rules as needed on a case- affording other parties a reasonable Commission recognizes that by-case basis. The Commission seeks opportunity to respond. To partially adjudications or other restricted comment on this tentative conclusion address this concern, the ex parte rules proceedings may significantly affect the and on whether the Commission should ordinarily require that a permissible governments, land, and resources of instead promulgate rules or guidelines. written presentation, or a written individual Tribal Nations. For example, For example, should any class of summary of an oral presentation, be a contested licensing proceeding may proceedings that is currently restricted included in the record within a overlap with consideration of the effects be presumptively designated permit- specified period of time after the of an undertaking on a historic property but-disclose so as to facilitate presentation is made, usually two of traditional religious and cultural government-to-government business days. Should the Commission importance to one or more Tribal consultation? Should the Commission similarly require that, in order to be Nations, which requires consultation designate the Office of Native Affairs considered, information must be under the National Historic Preservation and Policy as presumptively separated submitted in the record within some Act. Nonetheless, the Commission staff in restricted proceedings, or some time period after it is presented in believes that the nature of private party subset of restricted proceedings, so that consultation? If so, what should that interests in many restricted proceedings, they can speak off the record with Tribal time period be, and how might the for example, license application Nations but cannot communicate with Commission best administer the proceedings, counsels against routinely decision-making staff except to the requirement given that the same permitting undisclosed consultations extent permitted under the ex parte information may be presented in that may bear upon the issues in those rules? Instead of ex ante rules, should multiple consultation sessions? Would proceedings. A Tribal Nation could the Commission issue guidelines to such a requirement inhibit consultation request confidential treatment for inform staff in exercising their by forcing Tribal governments to material submitted into the record of a discretion whether to modify the ex consider whether, by presenting restricted proceeding to the extent parte rules for any particular restricted information and views during permitted under Commission rules. The proceeding? consultation and not promptly Commission seeks comment on this 14. Finally, the Commission submitting them in the record, they analysis. Is there any objectively recognizes that Commission rules might preclude future consideration of identifiable subset of restricted governing Tribal consultation and Tribal such information and views as part of proceedings for which the benefits of participation in Commission the Commission’s decision-making undisclosed consultation outweigh the proceedings themselves significantly or process? potential for harm? uniquely affect Tribal governments, their land and resources. The 10. During the Sunshine period, 12. To be clear, although the Commission therefore directs the Office however, the Commission proposes a Commission is not proposing any of Native Affairs and Policy, Consumer different regime. Specifically, the general exemption applicable to and Governmental Affairs Bureau, to Commission proposes that Commission restricted proceedings, Commission staff arrange opportunities for consultation officials and Tribal government would retain flexibility in specific appropriate to the nature and representatives be permitted to continue proceedings to modify the applicable ex circumstances of this proceeding. In consulting during the Sunshine period. parte rules in the public interest. For addition, to facilitate consultation, the However, unless another exemption example, staff could designate an Commission modifies the ex parte rules applies, information presented during otherwise restricted proceeding as for this proceeding as described in the such consultation could be submitted permit-but-disclose. Under the Procedural Matters section of this into the record, and relied upon by the exemption that the Commission document. Commission, only if the Commission or proposes, such designation would both its staff either requests its submission or enable Commission staff to engage in Exemption for Presentations Between approves its submission upon a Tribe’s dialogue with Tribal governments and Commission Staff and Program request. Similarly, information other entities without inviting other Administrators presented prior to the Sunshine period parties to be present, subject to 15. The Commission also seeks in the course of exempt consultation disclosure, and allow undisclosed comment on two proposed revisions to could be entered into the record during consultation with Tribal governments, 47 CFR 1.1204(a)(12). That section the Sunshine period only upon the provided the Commission does not rely currently classifies as exempt Commission’s request or with its in rendering its decisions on any presentations between Commission staff approval. The Commission believes this undisclosed information presented. and the interstate telecommunications proposal will advance both the Alternatively, or in addition, members relay services fund administrator, the Commission’s policy of consulting with of the Office of Native Affairs and North American Numbering Plan Tribal Nations regarding their interests Policy, or other Commission staff, could Administrator, the Universal Service and the policy underlying the Sunshine be designated as non-decisionmakers in Administrative Company, the Local rules to afford a period of repose in the any proceeding. This designation would Number Portability Administrator, the record before major decisions are made. allow the separated staff to TRS Numbering Administrator, and the The Commission seeks comment on this communicate with Tribal government Pooling Administrator relating to their proposal. Would any other rule better representatives outside of the ex parte administrative functions. The balance the policy considerations restrictions, but they would not be able exemption permits the various underlying both government-to- to have ex parte communications with administrators to engage in the frequent government consultation and the decision-making staff except as and close communications with Sunshine period? otherwise permitted. Commission staff necessary to exercise
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their administrative functions administrators would both effectuate the days before the start of Sunshine would efficiently. Commission’s original intent and also have to submit its ex parte notice 16. The Commission proposes that the constitute sound policy. It is consistent by the end of the day that the Sunshine exemption be expanded to include the with the overall philosophy of the ex period begins. Using the example from Toll-Free Numbering Administrator and parte rules to distinguish between the text above, if an ex parte the Reassigned Numbers Database situations in which an administrator is presentation is made on a Thursday and Administrator. The relationship acting as a consultant or co- the Sunshine period begins Saturday, between the Toll-Free Numbering decisionmaker and situations in which the ex parte notice would have to be Administrator and the Commission in the administrator is acting as a party. submitted by 11:59:59 p.m. on Monday. the administration of the Toll-Free Except where there is an overriding In either event, a reply would be due by Number Database is substantially the reason to do so, the ex parte rules the end of the day (11:59:59 p.m.) on same as that of the other administrators generally do not treat presentations Tuesday. Importantly, if an ex parte to the Commission in the performance involving a party as exempt. The notice is filed at 11:59:59 p.m. on of their administrative responsibilities. Commission therefore proposes to revise Tuesday, it will not be available to Likewise, the relationship between the the rule to make clear that the caveat is Commission staff and the public until Reassigned Numbers Database applicable to all the administrators. The early Wednesday morning. Administrator and the Commission in Commission seeks comment on this 21. Given that filings vital to the the administration of the Reassigned proposal. Should the exclusion from the proceeding may not be available to Numbers Database is substantially the exemption for filing comments or Commission staff and the public until same as that of the other administrators otherwise participating as a party be well into the ‘‘period of repose,’’ the to the Commission in the performance applied to all administrators? Commission and its staff have of their administrative responsibilities. Alternatively, should the exclusion be periodically encountered challenges Accordingly, the Commission believes eliminated? Is there any reason to treat fully evaluating all relevant filings in that presentations involving the Toll- one administrator differently from the limited time before a Commission Free Numbering Administrator and another? meeting. Similarly, the Commission Reassigned Numbers Database expects that the effective shortening of Administrator should be treated the Amendment to Commission’s Sunshine the period of repose may limit the same as those involving the other Period Ex Parte Rules ability of members of the public fully to administrators. The Commission 20. A Sunshine Agenda or Sunshine proposes to amend section 1.1204(a)(12) notice is typically released seven days evaluate the record. As a result, the accordingly, and the Commission seeks before a Commission meeting and lists Commission proposes to require parties comment on this proposal. Should the the items that will be presented to the to file ex parte notices of all Toll-Free Numbering Administrator and Commission. The period between the presentations, other than presentations the Reassigned Number Database release of the Sunshine Agenda and the permissibly made during the Sunshine Administrator be included among those Commission meeting is intended to period pursuant to some other subject to the exemption? Are there provide decision-makers a ‘‘period of exception, before the Sunshine period other administrators that should also be repose’’ during which they can consider begins, with replies due 24 hours after included? the upcoming items free from outside that. Applying the prior example to the 17. As a related matter, in reviewing interruptions. Although the Commission proposed rule change, consider that a § 1.1204(a)(12), the Commission notes intended to establish a week-long party makes an ex parte presentation in an anomaly. As applied to five of the six ‘‘period of repose,’’ the existing rules do a permit-but-disclose proceeding to a administrators covered, the exemption not in fact ensure a week-long period Commissioner on a Friday. That same is categorical. However, without changes to the record. day, the Commission’s Secretary § 1.1204(a)(12)(iv) applies only if the Generally, the Commission prohibits ex releases the Sunshine Agenda for the Local Number Portability Administrator parte communications made during the next Commission meeting and that ‘‘has not filed comments or otherwise Sunshine period. As an exception to the proceeding appears on the Agenda. The participated in the proceeding.’’ rule, however, the Commission does not Sunshine period begins as of Saturday, 18. The Commission can think of no apply the Sunshine prohibition to the and therefore the presenting party must reason to treat one administrator filing of a written ex parte presentation file its ex parte notice by the end of the differently from the others and or a memorandum summarizing an oral day (11:59:59 p.m.) on Friday. A reply attributes the discrepancy to an ex parte presentation made on the day would be due by the end of the day apparent oversight. When the the Sunshine notice is released. In those (11:59:59 p.m.) on Monday. Because the Commission enacted the first four cases, the ex parte filing must be dates of Commission Open Meetings are subsections of the rules, the submitted no later than the end of the publicly available, and because the Commission intended the caveat to next business day, and replies are due Sunshine notice is routinely released apply to all the administrators. 24 hours after that. For example, assume seven days before the Commission Consistent with this intent, the caveat a party makes an ex parte presentation meeting, the Commission expects was drafted to apply to ‘‘the relevant in a permit-but-disclose proceeding to a parties will know ahead of time whether administrator’’ and was apparently Commissioner on a Friday. That same their ex parte meetings will fall on the intended to follow, but not to be part of, day, the Commission’s Secretary date before the Sunshine period is due what was then the final subsection of releases the Sunshine Agenda for the to begin, and thus have foreknowledge § 1.1204(a)(12). Subsequently, however, next Commission meeting and that that their ex parte notices would be due when the final two administrators were proceeding appears on the Agenda. The at the end of that day. Furthermore, added, the caveat was not moved to the Sunshine period begins as of Saturday, given the Commission’s practice of end of the subsection, making it appear and therefore the presenting party must announcing the tentative agenda and that the caveat applied only to the Local file its ex parte notice by the end of the releasing draft items three weeks before Number Portability Administrator. day (11:59:59 p.m.) on Monday, the next the meeting date, parties should have 19. The Commission believes that business day. Importantly, an entity ample time to prepare their arguments applying the caveat to all the making an ex parte presentation two and schedule meetings earlier than the
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last permissible date if they choose to overnight U.S. Postal Service mail. All presentation. If the presentation do so. filings must be addressed to the consisted in whole or in part of the 22. The Commission seeks comment Commission’s Secretary, Office of the presentation of data or arguments on this proposal. For example, will Secretary, Federal Communications already reflected in the presenter’s ensuring a more complete ‘‘period of Commission. written comments, memoranda or other • repose’’ better enable Commission staff Commercial overnight mail (other filings in the proceeding, the presenter and the public to evaluate the record than U.S. Postal Service Express Mail may provide citations to such data or and the relevant issues, thereby leading and Priority Mail) must be sent to 9050 arguments in his or her prior comments, to better and more informed decisions? Junction Drive, Annapolis Junction, MD memoranda, or other filings (specifying What steps, if any, should the 20701. the relevant page and/or paragraph Commission take to ensure that parties • U.S. Postal Service first-class, numbers where such data or arguments making presentations to the Express, and Priority mail must be can be found) in lieu of summarizing Commission on the day before the addressed to 445 12th Street SW, them in the memorandum. Documents Sunshine period begins are aware that Washington, DC 20554. they must file their ex parte notices in • Effective March 19, 2020, and until shown or given to Commission staff a timely manner? Will requiring that ex further notice, the Commission no during ex parte meetings are deemed to parte notices be submitted before the longer accepts any hand or messenger be written ex parte presentations and Sunshine period begins be unduly delivered filings. This is a temporary must be filed consistent with rule burdensome for parties meeting with the measure taken to help protect the health 1.1206(b). In proceedings governed by Commission? Assuming this rule is and safety of individuals, and to rule 1.49(f) or for which the adopted, if a party fails to submit an ex mitigate the transmission of COVID–19. Commission has made available a parte notice by the required time, See FCC Announces Closure of FCC method of electronic filing, written ex should the party be sanctioned by the Headquarters Open Window and parte presentations and memoranda Commission or should its notice not be Change in Hand-Delivery Policy, Public summarizing oral ex parte included in the record? Notice, DA 20–304 (March 19, 2020). presentations, and all attachments https://www.fcc.gov/document/fcc- thereto, must be filed through the Procedural Matters closes-headquarters-open-window-and- electronic comment filing system 23. Paperwork Reduction Act changes-hand-delivery-policy. • available for that proceeding, and must Analysis.—This document does not During the time the Commission’s be filed in their native format (e.g., .doc, contain proposed information building is closed to the general public .xml, .ppt, searchable .pdf). Participants collection(s) subject to the Paperwork and until further notice, if more than in this proceeding should familiarize Reduction Act of 1995 (PRA), Public one docket or rulemaking number themselves with the Commission’s ex appears in the caption of a proceeding, Law 104–13. In addition, therefore, it parte rules. does not contain any new or modified paper filers need not submit two information collection burden for small additional copies for each additional 29. In light of the Commission’s trust business concerns with fewer than 25 docket or rulemaking number; an relationship with Tribal Nations and the employees, pursuant to the Small original and one copy are sufficient. Commission’s commitment to engage in Business Paperwork Relief Act of 2002, 26. People with Disabilities.—To government-to-government consultation Public Law 107–198, see 44 U.S.C. request materials in accessible formats with them, the Commission finds the 3506(c)(4). for people with disabilities (braille, public interest requires a limited 24. Regulatory Flexibility Act. This large print, electronic files, audio modification of the ex parte rules in this proposed action would amend a format), send an email to [email protected] proceeding. Tribal Nations, like other procedural rule for which notice and or call the Consumer & Governmental interested parties, should file comment are not required under the Affairs Bureau at 202–418–0530 (voice), comments, reply comments, and ex Administrative Procedure Act, and it 202–418–0432 (TTY). parte presentations in the record to put therefore falls outside of the Regulatory 27. Availability of Documents.— facts and arguments before the Flexibility Act of 1980, as amended. Comments, reply comments, and ex Commission in a manner such that they 25. Filing Requirements.—Pursuant to parte submissions will be publicly may be relied upon in the decision- §§ 1.415 and 1.419 of the Commission’s available online via ECFS. making process consistent with the 28. Ex Parte Presentations.—This rules, 47 CFR 1.415, 1.419, interested requirements of the Administrative proceeding shall be treated as a ‘‘permit- parties may file comments and reply Procedure Act. However, at the option but-disclose’’ proceeding in accordance comments on or before the dates of the Tribe, ex parte presentations with the Commission’s ex parte rules. indicated on the first page of this made during consultations by elected document. Comments may be filed Persons making ex parte presentations must file a copy of any written and appointed leaders and duly using the Commission’s Electronic appointed representatives of federally Comment Filing System (ECFS). See presentation or a memorandum summarizing any oral presentation recognized Indian Tribes and Alaska Electronic Filing of Documents in Native Villages to Commission decision Rulemaking Proceedings, 63 FR 24121 within two business days after the makers shall be exempt from the rules (1998). presentation (unless a different deadline • Electronic Filers: Comments may be applicable to the Sunshine period requiring disclosure in permit-but- filed electronically using the internet by applies). Persons making oral ex parte disclose proceedings and exempt from accessing the ECFS: http://apps.fcc.gov/ presentations are reminded that the prohibitions during the Sunshine ecfs/. memoranda summarizing the Agenda period. To be clear, while the • Paper Filers: Parties who choose to presentation must (1) list all persons Commission recognizes consultation is file by paper must file an original and attending or otherwise participating in critically important, we emphasize that one copy of each filing. the meeting at which the ex parte the Commission will rely in its Filings can be sent by hand or presentation was made, and (2) decision-making only on those messenger delivery, by commercial summarize all data presented and presentations that are placed in the overnight courier, or by first-class or arguments made during the public record for this proceeding.
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Ordering Clauses Database pursuant to 47 U.S.C. 251(e); proceeding to which it relates, including 30. It is ordered, pursuant to the or the docket number, if any, and must be authority found in sections 4(i), 4(j), and (viii) The Reassigned Numbers labeled as an ex parte presentation. 303(r) of the Communications Act of Database Administrator relating to Documents shown or given to administration of the Reassigned 1934, as amended, 47 U.S.C. 154(i), Commission staff during ex parte Numbers Database pursuant to [47 CFR 154(j), and 303(r), that this Notice of meetings are deemed to be written ex 64.1200(l) and (m)]. parte presentations and, accordingly, Proposed Rulemaking is hereby (13)(i) The presentation is in a permit- must be filed consistent with the adopted. but-disclose proceeding and is made in provisions of this section. Consistent Lists of Subjects in 47 CFR Part 1 the course of government-to-government consultation between a representative of with the requirements of § 1.49 Administrative practice and paragraphs (a) and (f), additional copies procedure. the Commission and an elected or appointed leader or duly authorized of all written ex parte presentations and Federal Communications Commission representative of the government of a notices of oral ex parte presentations, Marlene Dortch, federally recognized Tribal Nation, and any replies thereto, shall be mailed, Secretary. provided that the Commission may not emailed or transmitted by facsimile to rely in its decision-making process on the Commissioners or Commission Proposed Rules any such presentation that is not employees who attended or otherwise For the reasons discussed, the Federal disclosed in the record, either by the participated in the presentation. Communications Commission proposes Tribal government or by the * * * * * to amend 47 CFR part 1 as follows: Commission after coordination pursuant to paragraph (a)(13)(iii) of this section. (iv) Filing dates for presentations PART 1—PRACTICE AND (ii) A presentation made pursuant to made on the day that the Sunshine PROCEDURE paragraph (a)(13) of this section may be notice is released and the day before disclosed on the record during the Sunshine notice is released. For ■ 1. The authority citation for part 1 is period of the Sunshine Agenda presentations made on the day the revised to read as follows: prohibition, and relied upon by the Sunshine notice is released and the day Authority: 47 U.S.C. 151, 154(i), 154(j), Commission, only at the request of or before Sunshine notice is released, any 155, 157, 160, 201, 225, 227, 303, 309, 310, with the advance approval of the written ex parte presentation or 332, 1403, 1404, 1451, 1452, and 1455. Commission pursuant to paragraph memorandum summarizing an oral ex ■ 2. Section 1.1204 is amended by (a)(10) of this section, unless permitted parte presentation required pursuant to revising paragraphs (a)(12) introductory under another exception. § 1.1206 or 1.1208 must be submitted text and (a)(12)(iii) through (vi), and (iii) The Commission will disclose a before the day that the Sunshine period adding paragraphs (a)(12)(vii) and (viii), presentation made under paragraph begins. Written replies, if any, shall be and (a)(13) to read as follows: (a)(13) of this section or information filed no later than the end of the day obtained through such a presentation that the Sunshine period begins, and § 1.1204 Exempt ex parte presentations only after advance coordination with and proceedings. shall be limited in scope to the specific the Tribal government involved in order issues and information presented in the (a) * * * to ensure that the Tribal government ex parte filing to which they respond. (12) The presentation is between involved retains control over the timing Commission staff and any of the and extent of any disclosure that may Example 1: On Tuesday, a party makes an following administrators relating to the have an impact on that Tribal ex parte presentation in a permit-but-disclose following subjects, provided that the government’s jurisdictional proceeding to a Commissioner. That same relevant administrator has not filed responsibilities. If the Tribal day, the Commission’s Secretary releases the comments or otherwise participated as a government involved does not wish Sunshine Agenda for the next Commission party in the proceeding: such presentation or information to be meeting and that proceeding appears on the * * * * * disclosed, the Commission will not Agenda. The Sunshine period begins as of (iii) The Universal Service disclose it and will disregard it in its Wednesday, and therefore the presenting Administrative Company relating to the decision-making process, unless it fits party must file its ex parte notice by the end administration of universal service within another exemption not requiring of the day (11:59:59 p.m.) on Tuesday. A support mechanisms pursuant to 47 disclosure. The fact that a Tribal reply would be due by the end of the day U.S.C. 254; government’s views are disclosed under (11:59:59 p.m.) on Wednesday. (iv) The Local Number Portability paragraph (a)(13) of this section does Example 2: On Monday, a party makes an Administrator relating to the not preclude further discussions ex parte presentation in a permit-but-disclose administration of local number pursuant to, and in accordance with, the proceeding to a Commissioner. On Tuesday, portability pursuant to 47 U.S.C. exception. the Commission’s Secretary releases the 251(b)(2) and (e); Sunshine Agenda for the next Commission * * * * * meeting and that proceeding appears on the (v) The TRS Numbering ■ 3. Section 1.1206 is amended by Administrator relating to the Agenda. The Sunshine period begins as of revising paragraphs (b)(2) introductory Wednesday, and therefore the presenting administration of the TRS numbering text and (b)(2)(iv) to read as follows: directory pursuant to 47 U.S.C. 225 and party must file its ex parte notice by the end 47 U.S.C. 251(e); § 1.1206 Permit-but-disclose proceedings. of the day (11:59:59 p.m.) on Tuesday. A (vi) The Pooling Administrator * * * * * reply would be due by the end of the day relating to the administration of (b) * * * (11:59:59 p.m.) on Wednesday. thousands-block number pooling (2) Written and oral presentations. A [FR Doc. 2020–17266 Filed 9–1–20; 8:45 am] pursuant to 47 U.S.C. 251(e); written ex parte presentation and a BILLING CODE 6712–01–P (vii) The Toll-Free Numbering memorandum summarizing an oral ex Administrator relating to the parte presentation (and cover letter, if administration of Toll-Free Number any) shall clearly identify the
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DEPARTMENT OF COMMERCE otherwise sensitive information approve, partially approve, or submitted voluntarily by the sender will disapprove Amendment 29 to the FMP. National Oceanic and Atmospheric be publicly accessible. NMFS will Amendment 29 would make two Administration accept anonymous comments (enter ‘‘N/ changes to the PCGFMP. Amendment 29 A’’ in the required fields if you wish to would (1) reclassify shortbelly rockfish 50 CFR Part 660 remain anonymous). from a stock that requires conservation and management (previously known as RIN 0648–BJ74 Electronic Access ‘‘in the fishery’’) to an ecosystem This rule is accessible via the internet Magnuson-Stevens Act Provisions; component (EC) species; and (2) change at the Office of the Federal Register Fisheries Off West Coast States; the trawl/non-trawl allocations for website at https:// Pacific Coast Groundfish Fishery blackgill rockfish within the southern www.federalregister.gov/. Background ° ′ Management Plan; Amendment 29; slope complex south of 40 10 N lat., information and documents including ° ′ 2021–2022 Biennial Specifications and petrale sole, lingcod south of 40 10 N an integrated analysis for this action Management Measures lat., and widow rockfish. (Analysis), which addresses the Shortbelly Rockfish as an EC Species AGENCY: National Marine Fisheries statutory requirements of the Magnuson Service (NMFS), National Oceanic and Stevens Fishery Conservation and Shortbelly rockfish (Sebastes jordani) Atmospheric Administration (NOAA), Management Act (Magnuson-Stevens is one of the most abundant rockfish Commerce. Act), the National Environmental Policy species and an important forage species Act, Executive Order 12866, and the in the California Current Ecosystem. ACTION: Availability of a proposed Shortbelly rockfish is not the target of fishery management plan amendment; Regulatory Flexibility Act are available at the NMFS West Coast Region website any fisheries and is mostly taken as request for comments. at https://www.fisheries.noaa.gov/ bycatch in midwater trawl fisheries. SUMMARY: NMFS announces that the region/west-coast and at the Pacific Unlike most harvested Pacific coast Pacific Fishery Management Council Fishery Management Council’s website rockfishes (e.g., bocaccio and cowcod), has submitted Amendment 29 to the at http://www.pcouncil.org. The final shortbelly rockfish are small-bodied, Pacific Coast Groundfish Fishery 2020 Stock Assessment and Fishery relatively short-lived and semi-pelagic Management Plan to the Secretary of Evaluation (SAFE) report for Pacific rockfish that school as adults. Commerce for review. If approved, Coast groundfish, as well as the SAFE Shortbelly rockfish recruitment is Amendment 29 would reclassify reports for previous years, are available highly variable among years, causing shortbelly rockfish as an ecosystem from the Pacific Fishery Management populations to undergo large ‘‘booms component species and would make Council’s website at http:// and busts’’. Historically, shortbelly changes to the trawl/non-trawl www.pcouncil.org. rockfish were most abundant off central California from Monterey Bay to Point allocations for blackgill rockfish within FOR FURTHER INFORMATION CONTACT: Reyes, common in southern California, the southern slope complex south of Karen Palmigiano, telephone: (206) 526– and only rarely encountered north of 40°10′ North latitude (N lat.), petrale 4491 and email: karen.palmigiano@ Cape Mendocino, California. In recent sole, lingcod south of 40°10′ N lat., and noaa.gov. widow rockfish. years, shortbelly rockfish distribution SUPPLEMENTARY INFORMATION: NMFS has extended north of Cape Mendocino, DATES: Comments on Amendment 29 manages the groundfish fisheries in the California and into Oregon and must be received no later than exclusive economic zone (EEZ) off Washington waters, the principal November 2, 2020. Washington, Oregon, and California fishing areas the midwater trawl fishery ADDRESSES: You may submit comments under the Pacific Coast Groundfish operates in to harvest Pacific whiting. on this document, identified by NOAA– Fishery Management Plan (PCGFMP). While shortbelly rockfish bycatch was NMFS–2020–0098, by any of the The Pacific Fishery Management historically low in the Pacific whiting following methods: Council (Council) prepared and NMFS fishery, the recent shift in distribution • Electronic Submission: Submit all implemented the PCGFMP under the and a likely increase in abundance, has electronic public comments via the authority of the Magnuson-Stevens Act, resulted in increased bycatch of Federal e-Rulemaking Portal. Go to 16 U.S.C. 1801 et seq. and by shortbelly rockfish in the Pacific www.regulations.gov/ regulations at 50 CFR parts 600 and 660. whiting midwater trawl fishery. See #!docketDetail;D=NOAA-NMFS-2020- The Magnuson-Stevens Act requires that Chapter 4 of the Analysis for more 0098, click the ‘‘Comment Now!’’ icon, each regional fishery management information on high bycatch of complete the required fields, and enter council submit any fishery management shortbelly rockfish in the Pacific or attach your comments. plan (FMP) or plan amendment it whiting fishery. • Mail: Submit written comments to prepares to NMFS for review and Shortbelly rockfish was last assessed Barry A. Thom., Regional approval, disapproval, or partial in 2007. The assessment, available on Administrator, 7600 Sand Point Way approval by the Secretary of Commerce. the Council’s website at https:// NE, Seattle, WA 98115. The Magnuson-Stevens Act also www.pcouncil.org/documents/2007/04/ Instructions: Comments sent by any requires that NMFS, upon receiving an stock-assessment-model-for- other method, to any other address or FMP or amendment, immediately theshortbelly-rockfish-sebastes-jordani- individual, or received after the end of publish a notice that the FMP or inthe-california-current.pdf/, estimated the comment period, may not be amendment is available for public the shortbelly rockfish stock to be 67 considered by NMFS. All comments review and comment. This notice percent of unfished levels at the start of received are a part of the public record announces that proposed Amendment 2005. The Analysis (Chapter 3) and will generally be posted for public 29 to the FMP is available for public describes NMFS survey data since the viewing on www.regulations.gov review and comment. NMFS will last assessment, including the without change. All personal identifying consider the public comments received Southwest Fisheries Science Center’s information (e.g., name, address, etc.), during the comment period described Rockfish Recruitment and Ecosystem confidential business information, or above in determining whether to Analysis Survey (RREAS) and California
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Cooperative Oceanic Fisheries complexes. The first three categories are rockfish in the EEZ off of the West Investigations (CalCOFI) and the identified for those stocks that need Coast. Because there is no directed Northwest Fisheries Science Center’s conservation or management and for fishing and incidental fishing-related West Coast Groundfish Bottom Trawl which the Council sets biennial harvest mortality has been low in comparison to Survey, which provide more recent specifications. The fourth category of the ABC, it is very unlikely that catch insight into the population trends of species is identified as EC species. would exceed the overfishing limit for shortbelly rockfish. These survey data These species are not determined to be shortbelly rockfish, resulting in show extraordinarily high recruitment in need of conservation and shortbelly rockfish becoming overfished events occurred between 2013 and 2017, management and therefore the Council and in need of rebuilding. There are no and provide evidence that the overall and NMFS do not actively manage known conservation concerns for shortbelly rockfish population was very them. EC species are not targeted in any shortbelly rockfish since they are not high in 2018–2019. The population size fishery and are not generally retained targeted, are not profitable, and future in southern California remains close to for sale or personal use. uses of shortbelly rockfish remain average levels and suggests the Section 302(h)(1) of the Magnuson- unavailable. Therefore, maintaining shortbelly rockfish population did not Stevens Act requires a Council to shortbelly rockfish as a target species in simply shift to northern waters. prepare an FMP for each fishery under the PCGFMP is not likely to change Increased encounters of shortbelly its authority that is in need of stock condition. rockfish in northern midwater trawl conservation and management. Based on a review of the best fisheries is likely the result of increased ‘‘Conservation and management’’ is scientific information available, and recruitment and coastwide biomass defined in section 3(5) of the Magnuson- after considering the National Standard coupled with an expansion of its Stevens Act. The National Standard guidelines, the Council recommended geographic range on the West Coast. In guidelines at § 600.305(c) (revised on and NMFS is proposing to reclassify addition to examining NMFS survey October 18, 2016; 81 FR 71858) provide shortbelly rockfish as an EC species data for trends in shortbelly rockfish direction for determining which stocks through Amendment 29 to the PCGFMP. biomass and distribution, the Analysis will require conservation and While the Council determined that (Chapter 3) describes recent research by management and provide direction to shortbelly rockfish are not in need of Schroeder et al. 2018, which suggests regional councils and NMFS for how to conservation and management as that the shortbelly rockfish stock is consider these factors in making this defined by the Magnuson-Stevens Act expected to thrive for at least the next determination. Specifically, the and the National Standard guidelines, decade or so based on multiple strong guidelines direct regional fishery the Council and NMFS determined that incoming year-classes. management councils and NMFS to Shortbelly rockfish were initially consider a non-exhaustive list of 10 there are benefits to retaining shortbelly considered for an EC species factors when deciding whether stocks rockfish as an EC species complex in the categorization under Amendment 23 to require conservation and management. PCGFMP because they are a component the PCGFMP. Rather than classifying Below is a summary of information on of the ecosystem as prey (forage fish). shortbelly rockfish as an EC species, the shortbelly rockfish related to those 10 Additionally, the Council has adopted a Council chose to recommend a very factors. Section 4.2.3.2 in the Analysis list of candidate stocks for assessment in restrictive annual catch limit (ACL) of provides additional details on each of 2023 for which shortbelly rockfish is 50 mt, or less than 1 percent of the the 10 factors’ relevance to shortbelly included. The Council will make a final acceptable biological catch (ABC), for rockfish. decision on this candidate list in June the 2011–2012 (76 FR 27508, May 11, One of the factors a Council must 2022. Amendment 29 would reclassify 2011) and the 2013–2014 (78 FR 580, consider when determining whether a shortbelly rockfish as an EC species in January 3, 2013) management cycles. stock requires conservation and the PCGFMP to clarify that they are a The ACL was increased to 500 mt management is whether maintaining it non-target species and not in need of beginning in 2015 to prevent as a target species will improve or conservation and management. unavoidable bycatch from prematurely maintain the condition of the stock. The Recordkeeping and reporting shutting down emerging mid-water analysis shows that while shortbelly are requirements will be maintained to trawl fisheries targeting yellowtail and currently classified as ‘‘in the fishery’’ monitor the effects of incidental catch of widow rockfish (80 FR 12567, March 10, in the PCGFMP, there has been no shortbelly in the groundfish fisheries. 2015). At the time, the 500 mt ACL was directed fishing for shortbelly rockfish Changes to Trawl and Non-Trawl still less than 10 percent of the ABC and and disincentives still exist to prevent a Allocations was a level of harvest meant to directed fishery from developing, such accommodate unavoidable incidental as a lack of market, the cost of having The Council also recommended bycatch of shortbelly rockfish while to land shortbelly versus the profits changing some fixed allocations that allowing most of the harvestable surplus (∼$0.02 per pound), and the possibility were originally established through of the stock to be available as forage for of fouling the mesh (See Section 4.1.1.5 Amendment 21 to the PCGFMP to species in the California Current of the Analysis for more information 2-year allocations, and revising the ecosystem. The shortbelly rockfish ACL disincentives for targeting shortbelly trawl/non-trawl percentages for those was exceeded in 2018 and 2019. rockfish). Shortbelly rockfish is not allocations for blackgill rockfish within Bycatch of this stock was highly considered an important stock to the southern slope complex south of variable and unpredictable in the commercial, recreational, or subsistence 40°10′ N lat., petrale sole, lingcod south fishery. After review of the best users, as very little is ever caught. of 40°10′N lat., and widow rockfish. available scientific information, the ACL Shortbelly rockfish is also not an Table 1 provides the current trawl/non- was increased again to 3,000 mt in 2020 important component of the regional or trawl allocation for these stocks as was for the same reasons it was increased in National economy and has limited implemented through the 2019–20 2015 (85 FR 36803, June 18, 2020). economic value with ex-vessel landings biennium and the Council’s Section 4.2 of the PCGFMP defines totaling about $11,000 in 2019. There is recommended trawl/non-trawl species categories for stocks and stocks no developing fishery for shortbelly allocations for the 2021–22 biennium.
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TABLE 1—CURRENT AND PROPOSED TRAWL AND NON-TRAWL ALLOCATIONS FOR CHANGES TO THE TRAWL/NON-TRAWL ALLOCATIONS FOR BLACKGILL ROCKFISH WITHIN THE SOUTHERN SLOPE COMPLEX SOUTH OF 40°10′ N LAT., PETRALE SOLE, LINGCOD SOUTH OF 40°10′ N LAT., AND WIDOW ROCKFISH
2020 2021–22 Biennium Stock Trawl allocation Non-trawl allocation Trawl allocation Non-trawl allocation MT Percent MT Percent MT Percent MT Percent
Southern slope 723.8 63 456 37 2021-Slope Blackgill 2021-Slope Blackgill complex (484.5), (41%), Other (47.9), (59%), Other south of blackgill slope rock- blackgill slope rock- 40°10′ N lat., (72.4). fish (91%). (104.2). fish (9%). includes 2022-Slope 2022-Slope blackgill rock- (483.2), (47.8), fish. blackgill blackgill (71.4). (102.7). Petrale sole ..... 2,458 95 129.4 5 Remaining ...... 30 MT ...... Amount. Lingcod south 462.5 45 565.2 55 435.6...... 40 ...... 653.4 ...... 60. of 40°10′ N lat. Widow Rockfish 10,540.2 91 1,042.4 9 Remaining ...... 400 ...... Amount.
Converting these allocations from NMFS welcomes comments on the amendment. All comments received by fixed allocations to 2-year allocations proposed FMP amendment through the the end of the comment period for the would allow the Council to review and end of the comment period. A proposed amendment, whether specifically potentially revise them during each rule to implement Amendment 29 has directed to the amendment or the biennium. The changes to trawl and been submitted for Secretarial review proposed rule, will be considered in the non-trawl allocations are expected to and approval. NMFS expects to publish approval/disapproval decision. better align current catch with annual and request public review and comment Authority: 16 U.S.C. 1801 et seq. limits that maximize benefits to sectors on proposed regulations to implement while also under attainment of stocks Amendment 29 in the near future. For Dated: August 28, 2020. that can occur when a sector is allocated public comments on the proposed rule Kelly Denit, more than they can harvest. The effects to be considered in the approval or Director, Office of Sustainable Fisheries, of each of these changes is discussed in disapproval decision on Amendment National Marine Fisheries Service. Chapter 4 of the Analysis under the 29, those comments must be received by [FR Doc. 2020–19414 Filed 9–1–20; 8:45 am] specific stock or stock complex. the end of the comment period on the BILLING CODE 3510–22–P
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Notices Federal Register Vol. 85, No. 171
Wednesday, September 2, 2020
This section of the FEDERAL REGISTER call ahead to facilitate entry into the Dated: August 26, 2020. contains documents other than rules or building. Cikena Reid, proposed rules that are applicable to the USDA Committee Management Officer. public. Notices of hearings and investigations, FOR FURTHER INFORMATION CONTACT: Ian committee meetings, agency decisions and Fox, Designated Federal Officer, by [FR Doc. 2020–19323 Filed 9–1–20; 8:45 am] rulings, delegations of authority, filing of phone at 505–401–5245 or via email at BILLING CODE 3411–15–P petitions and applications and agency [email protected]. statements of organization and functions are Individuals who use examples of documents appearing in this telecommunication devices for the deaf DEPARTMENT OF AGRICULTURE section. (TDD) may call the Federal Information Forest Service Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., DEPARTMENT OF AGRICULTURE Collaborative Forest Restoration Eastern Standard Time, Monday Program Technical Advisory Panel Forest Service through Friday. AGENCY: Forest Service, USDA. SUPPLEMENTARY INFORMATION: The Collaborative Forest Restoration purpose of the meeting is to: ACTION: Notice of meeting. Program Technical Advisory Panel (1) Review Panel Bylaws, Charter, and SUMMARY: The Collaborative Forest what it means to be a Federal Advisory AGENCY: Forest Service, USDA. Restoration Program Technical Advisory Committee; ACTION: Notice of meeting. Panel (Panel) will hold a virtual (2) Evaluate and score the 2020 meeting. The Panel is established Collaborative Forest Restoration SUMMARY: The Collaborative Forest consistent with the Federal Advisory Restoration Program Technical Advisory Program (CFRP) grant applications to Committee Act of 1972 (FACA), and Panel (Panel) will hold a virtual determine which applications best meet Title VI of the Community Forest meeting. The Panel is established the program objectives; Restoration Act (the Act). Additional consistent with the Federal Advisory (3) Develop prioritized 2020 CFRP information concerning the Panel, Committee Act of 1972 (FACA), and project funding recommendations for including the meeting summary/ Title VI of the Community Forest the Secretary; and minutes, can be found by visiting the Restoration Act (the Act). Additional (4) Discuss the proposal review Panel’s website at: http:// information concerning the Panel, process used by the Panel to identify www.fs.usda.gov/goto/r3/cfrp. what went well and what could be including the meeting summary/ DATES: The meeting will be held on improved. minutes, can be found by visiting the September 15–17, 2020, with meeting Panel’s website at: http:// The meeting is open to the public. each day from 9:30 a.m. to 3:45 p.m. www.fs.usda.gov/goto/r3/cfrp. The agenda will include time for people All meetings are subject to to make oral statements of three minutes DATES: The meeting will be held on cancellation. For status of meeting prior or less. Individuals wishing to make an September 22–24, 2020: to attendance, please contact the person oral statement should request in writing • September 22–23 (Tuesday– listed under FOR FURTHER INFORMATION by September 4, 2020, to be scheduled CONTACT. Wednesday), with meeting each day on the agenda. from 9:30 a.m. to 3:45 p.m., and Anyone who would like to bring ADDRESSES: The meeting will be held • September 24 (Thursday) meeting related matters to the attention of the with virtual attendance only. The will be held 9:30 a.m.–1:45 p.m. committee may file written statements following link with provide public All meetings are subject to with the committee staff before or after access to view the Panel meeting: cancellation. For status of meeting prior the meeting. Written comments and https://www.youtube.com/channel/ _ to attendance, please contact the person requests for time to make oral comments UCqExQ41C51-mSdijkwgGnww?view FOR FURTHER INFORMATION listed under must be sent to Ian Fox, Designated as=subscriber. CONTACT. Federal Officer, USDA Forest Service, Written comments may be submitted ADDRESSES: The meeting will be held Region 3 Regional Office, 333 Broadway as described under SUPPLEMENTARY with virtual attendance only. The Bouleveard Southwest, Albuqueque, INFORMATION. All comments, including following link with provide public New Mexico 87102; or by email to names and addresses when provided, access to view the Panel meeting: [email protected]. are placed in the record and are https://www.youtube.com/channel/ Meeting Accommodations: If you are available for public inspection and UCqExQ41C51-mSdijkwgGnww?view_ a person requiring reasonable copying. The public may inspect as=subscriber. accommodation, please make requests comments received at USDA Forest Written comments may be submitted in advance for sign language Service Region 3 Regional Office. Please as described under SUPPLEMENTARY interpreting, assistive listening devices, call ahead to facilitate entry into the INFORMATION. All comments, including or other reasonable accommodation. For building. names and addresses when provided, access to the facility or proceedings, FOR FURTHER INFORMATION CONTACT: Ian are placed in the record and are please contact the person listed in the Fox, Designated Federal Officer, by available for public inspection and section titled FOR FURTHER INFORMATION phone at 505–401–5245 or via email at copying. The public may inspect CONTACT. All reasonable [email protected]. comments received at USDA Forest accommodation requests are managed Individuals who use Service Region 3 Regional Office. Please on a case-by-case basis. telecommunication devices for the deaf
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(TDD) may call the Federal Information DEPARTMENT OF COMMERCE days or more before the scheduled date Relay Service (FIRS) at 1–800–877–8339 of the preliminary determination and between 8:00 a.m. and 8:00 p.m., International Trade Administration must state the reasons for the request. Eastern Standard Time, Monday [C–580–910, C–821–827] Commerce will grant the request unless through Friday. it finds compelling reasons to deny the Seamless Carbon and Alloy Steel request. SUPPLEMENTARY INFORMATION: The Standard, Line, and Pressure Pipe purpose of the meeting is to: On August 18, 2020, the petitioner From the Republic of Korea and the submitted a timely request that (1) Review Panel Bylaws, Charter, and Russian Federation: Postponement of Commerce postpone the preliminary what it means to be a Federal Advisory Preliminary Determinations in the CVD determinations.2 According to the Committee; Countervailing Duty Investigations petitioner, additional time is necessary (2) Evaluate and score the 2020 AGENCY: Enforcement and Compliance, because the current preliminary Collaborative Forest Restoration International Trade Administration, determination is scheduled ‘‘just 10 Program (CFRP) grant applications to Department of Commerce. days after the current deadline for determine which applications best meet DATES: Applicable September 2, 2020. complete initial responses to Sections II the program objectives; FOR FURTHER INFORMATION CONTACT: and III of Commerce’s questionnaire’’ (3) Develop prioritized 2020 CFRP Caitlin Monks at (202) 482–2670 (the and ‘‘to allow Commerce to fully project funding recommendations for Russian Federation (Russia)); Moses analyze respondents’ questionnaire the Secretary; and Song or Natasia Harrison at (202) 482– responses, and any other filings such as new subsidy allegations and benchmark (4) Discuss the proposal review 7885 or (202) 482–1240, respectively factual information, prior to the process used by the Panel to identify (the Republic of Korea (Korea)), AD/ preliminary determination.’’ 3 what went well and what could be CVD Operations, Enforcement and improved. Compliance, International Trade In accordance with 19 CFR Administration, U.S. Department of 351.205(e), the petitioner has stated the The meeting is open to the public. Commerce, 1401 Constitution Avenue reasons for requesting a postponement The agenda will include time for people NW, Washington, DC 20230. of the preliminary determination, and to make oral statements of three minutes SUPPLEMENTARY INFORMATION: Commerce finds no compelling reason or less. Individuals wishing to make an to deny the request. Therefore, in oral statement should request in writing Background accordance with section 703(c)(1)(A) of by September 4, 2020, to be scheduled On July 28, 2020, the Department of the Act, Commerce is postponing the on the agenda. Anyone who would like Commerce (Commerce) initiated deadline for the preliminary to bring related matters to the attention countervailing duty (CVD) determinations to no later than 130 days of the committee may file written investigations of imports of seamless after the date on which these statements with the committee staff carbon and alloy steel standard, line, investigations were initiated, i.e., before or after the meeting. Written and pressure pipe (seamless pipe) from December 7, 2020.4 Pursuant to section 1 comments and requests for time to make Russia and Korea. Currently, the 705(a)(1) of the Act and 19 CFR oral comments must be sent to Ian Fox, preliminary determinations are due no 351.210(b)(1), the deadline for the final Designated Federal Officer, USDA later than October 1, 2020. determinations of these investigations Forest Service, Region 3 Regional Office, Postponement of Preliminary will continue to be 75 days after the 333 Broadway Bouleveard Southwest, Determinations date of the preliminary determinations. Albuqueque, New Mexico 87102; or by email to [email protected]. Section 703(b)(1) of the Tariff Act of Notification to Interested Parties 1930, as amended (the Act), requires the Meeting Accommodations: If you are Department to issue the preliminary This notice is issued and published a person requiring reasonable determination in a countervailing duty pursuant to section 703(c)(2) of the Act accommodation, please make requests investigation within 65 days after the and 19 CFR 351.205(f)(1). in advance for sign language date on which Commerce initiated the Dated: August 27, 2020. interpreting, assistive listening devices, investigation. However, section Jeffrey I. Kessler, or other reasonable accommodation. For 703(c)(1) of the Act permits Commerce access to the facility or proceedings, to postpone the preliminary Assistant Secretary for Enforcement and please contact the person listed in the determination until no later than 130 Compliance. section titled FOR FURTHER INFORMATION days after the date on which Commerce [FR Doc. 2020–19395 Filed 9–1–20; 8:45 am] CONTACT. All reasonable initiated the investigation if: (A) The BILLING CODE 3510–DS–P accommodation requests are managed petitioner makes a timely request for a on a case-by-case basis. postponement; or (B) Commerce 2 The petitioner is Vallourec Star, LP (petitioner). concludes that the parties concerned are See Petitioner’s Letter, ‘‘Seamless Carbon and Alloy Dated: August 27, 2020. cooperating, that the investigation is Steel Standard, Line, and Pressure Pipe from Korea Cikena Reid, and Russia: Request to Extend Preliminary extraordinarily complicated, and that Determinations,’’ dated August 18, 2020. USDA Committee Management Officer. additional time is necessary to make a 3 Id. [FR Doc. 2020–19319 Filed 9–1–20; 8:45 am] preliminary determination. Under 19 4 Postponing the preliminary determination to 130 days after initiation would place the deadline BILLING CODE 3411–15–P CFR 351.205(e), the petitioner must on Saturday, December 5, 2020. Commerce’s submit a request for postponement 25 practice dictates that where a deadline falls on a weekend or federal holiday, the appropriate 1 See Seamless Carbon and Alloy Steel Standard, deadline is the next business day. See Notice of Line, and Pressure Pipe from the Republic of Korea Clarification: Application of ‘‘Next Business Day’’ and the Russian Federation: Initiation of Rule for Administrative Determination Deadlines Countervailing Duty Investigations, 85 FR 47170 Pursuant to the Tariff Act of 1930, As Amended, 70 (August 4, 2020) (Initiation Notice). FR 24533 (May 10, 2005).
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DEPARTMENT OF COMMERCE On June 12, 2020, we published the modules, laminates and/or panels that Initiation Notice for these changed are integrated into the consumer good. International Trade Administration circumstances reviews in the Federal Further, also excluded from the scope 3 [A–570–010, C–570–011] Register. We invited interested parties of these orders are any products covered to submit comments concerning by the existing antidumping and Crystalline Silicon Photovoltaic industry support for the revocation, in countervailing duty orders on Products From the People’s Republic part, of the Solar Products Orders, as crystalline silicon photovoltaic cells, of China: Preliminary Results of well as comments and/or factual whether or not assembled into modules, Changed Circumstances Reviews, and information regarding these changed laminates and/or panels, from China.4 Consideration of Revocation of the circumstances reviews. We received no Additionally, excluded from the Antidumping and Countervailing Duty comments. scope of these orders are solar panels Orders in Part that are: (1) Less than 300,000 mm2 in Scope of the Solar Products Orders surface area; (2) less than 27.1 watts in AGENCY: Enforcement and Compliance, The merchandise covered by these power; (3) coated across their entire International Trade Administration, orders is modules, laminates and/or surface with a polyurethane doming Department of Commerce. panels consisting of crystalline silicon resin; and (4) joined to a battery SUMMARY: On March 16, 2020, the photovoltaic cells, whether or not charging and maintaining unit (which is Department of Commerce (Commerce) partially or fully assembled into other an acrylonitrile butadiene styrene (ABS) received a request for revocation, in products, including building integrated box that incorporates a light emitting part, of the antidumping duty (AD) and materials. For purposes of these orders, diode (LED)) by coated wires that countervailing duty (CVD) orders on subject merchandise includes modules, include a connector to permit the crystalline silicon photovoltaic products laminates and/or panels assembled in incorporation of an extension cable. The from the People’s Republic of China China consisting of crystalline silicon battery charging and maintaining unit (China) with respect to certain off-grid photovoltaic cells produced in a utilizes high-frequency triangular pulse portable small panels. We preliminarily customs territory other than China. waveforms designed to maintain and find that producers accounting for Subject merchandise includes extend the life of batteries through the substantially all of the domestic modules, laminates and/or panels reduction of lead sulfate crystals. The production of the products to which the assembled in China consisting of above-described battery charging and Solar Products Orders pertain lack crystalline silicon photovoltaic cells of maintaining unit is currently available interest in the relief provided by those thickness equal to or greater than 20 under the registered trademark orders with respect to certain off-grid micrometers, having a p/n junction ‘‘SolarPulse.’’ portable small panels; therefore, we formed by any means, whether or not Merchandise covered by these orders intend to revoke, in part, the Solar the cell has undergone other processing, is currently classified in the Products Orders with respect to such including, but not limited to, cleaning, Harmonized Tariff Schedule of the panels. Interested parties are invited to etching, coating, and/or addition of United States (HTSUS) under comment on these preliminary results. materials (including, but not limited to, subheadings 8501.61.0000, DATES: Applicable September 2, 2020. metallization and conductor patterns) to 8507.20.8030, 8507.20.8040, FOR FURTHER INFORMATION CONTACT: collect and forward the electricity that 8507.20.8060, 8507.20.8090, Thomas Hanna, AD/CVD Operations, is generated by the cell. 8541.40.6015, 8541.40.6020, Office IV, Enforcement and Compliance, Excluded from the scope of these 8541.40.6030, 8541.40.6035 and International Trade Administration, orders are thin film photovoltaic 8501.31.8000. These HTSUS U.S. Department of Commerce, 1401 products produced from amorphous subheadings are provided for Constitution Avenue NW, Washington, silicon (a-Si), cadmium telluride (CdTe), convenience and customs purposes; the DC 20230; telephone: (202) 482–0835. or copper indium gallium selenide written description of the scope of these (CIGS). Also excluded from the scope of orders is dispositive.5 SUPPLEMENTARY INFORMATION: these orders are modules, laminates Background and/or panels assembled in China, Preliminary Results of Changed Circumstances Reviews and Intent To On February 18, 2015, Commerce consisting of crystalline silicon photovoltaic cells, not exceeding 10,000 Revoke the Solar Products Orders, in published AD and CVD orders on 2 Part certain crystalline silicon photovoltaic mm in surface area, that are Section 782(h)(2) of the Act gives products from China.1 On March 16, permanently integrated into a consumer Commerce the authority to revoke an 2020, Memory Experts Inc., dba good whose function is other than order if producers accounting for PowerTraveller (Memory Experts), an power generation and that consumes the substantially all of the production of the importer of the subject merchandise, electricity generated by the integrated domestic like product have expressed a requested, through changed crystalline silicon photovoltaic cells. Where more than one module, laminate lack of interest in the order. Section circumstances reviews, revocation of the and/or panel is permanently integrated 351.222(g) of Commerce’s regulations Solar Products Orders with respect to into a consumer good, the surface area provides that Commerce will conduct a certain off-grid portable small panels for purposes of this exclusion shall be changed circumstances review under 19 pursuant to section 751(b)(1) of the the total combined surface area of all CFR 351.216, and may revoke an order Tariff Act of 1930, as amended (the Act) and 19 CFR 351.216(b).2 Modules from the People’s Republic of China; 4 See Crystalline Silicon Photovoltaic Cells, Memory Experts Inc., dba PowerTraveller’s Request Whether or Not Assembled Into Modules, from the 1 See Certain Crystalline Silicon Photovoltaic for a Changed Circumstances Review,’’ dated March People’s Republic of China: Amended Final Products from the People’s Republic of China: 16, 2020 (Memory Experts’ Request). Determination of Sales at Less Than Fair Value, Antidumping Duty Order; and Amended Final 3 See Crystalline Silicon Photovoltaic Products and Antidumping Duty Order, 77 FR 73018 Affirmative Countervailing Duty Determination and from the People’s Republic of China: Notice of (December 7, 2012); Crystalline Silicon Photovoltaic Countervailing Duty Order, 80 FR 8592 (February Initiation of Changed Circumstances Reviews, and Cells, Whether or Not Assembled Into Modules, 18, 2015) (Solar Products Orders). Consideration of Revocation of the Antidumping from the People’s Republic of China: Countervailing 2 See Memory Experts’ Letter, ‘‘Crystalline Silicon and Countervailing Duty Orders in Part, 85 FR Duty Order, 77 FR 73017 (December 7, 2012). Photovoltaic Cells, Whether or Not Assembled into 35902 (June 12, 2020) (Initiation Notice). 5 See Solar Products Orders.
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(in whole or in part), if it concludes warrant revocation of the Solar Products containing business proprietary that: (i) Producers accounting for Orders, in part, with respect to such information, until further notice.12 substantially all of the production of the panels. Commerce will issue the final results domestic like product to which the Accordingly, we are notifying the of these changed circumstances reviews, order pertains have expressed a lack of public of our intent to revoke the Solar which will include its analysis of any interest in the relief provided by the Products Orders, in part, with respect to written comments, no later than 270 order, in whole or in part; or (ii) if other the following off-grid portable small days after the date on which this review changed circumstances sufficient to panels: was initiated. warrant revocation exist. Thus, both the (1) Off-grid crystalline silicon If, in the final results of these reviews, Act and Commerce’s regulations require photovoltaic panels without a glass Commerce continues to determine that that ‘‘substantially all’’ domestic cover with the following characteristics: changed circumstances warrant the producers express a lack of interest in (a) Total power output of 500 watts or revocation of the Solar Products Orders, the order for Commerce to revoke the less per panel; in part, we will instruct U.S. Customs order, in whole or in part.6 Commerce (b) Maximum surface area of 8,000 and Border Protection to liquidate has interpreted ‘‘substantially all’’ to cm2 per panel; without regard to antidumping or represent producers accounting for at (c) Unit does not include a built-in countervailing duties, and to refund any least 85 percent of U.S. production of inverter; estimated antidumping or the domestic like product.7 (d) Unit has visible parallel grid countervailing duties on all Hanwha Q CELL USA, Inc. (Q CELL collector metallic wire lines every 2–40 unliquidated entries of the merchandise USA) and SunPower Manufacturing millimeters across each solar panel covered by the revocation that are not Oregon, LLC (SPMOR) submitted (depending on model); covered by the final results of an statements of lack of interest in the (e) Solar cells are encased in administrative review or automatic continued application of the Solar laminated frosted PET material without liquidation. Products Orders with respect to certain stitching; 9 The current requirement for cash off-grid portable small panels described (f) The panel is encased in polyester deposits of estimated antidumping and below. However, these statements did fabric with visible stitching which countervailing duties on all entries of not confirm that Q CELL USA and includes a Velcro-type storage pocket subject merchandise will continue SPMOR account for substantially all and unit closure, or encased within a unless until they are modified pursuant domestic production of certain Neoprene clamshell (depending on to the final results of these changed crystalline silicon photovoltaic model); circumstances reviews. 8 products. Thus, Commerce did not (g) Includes LED indicator. These preliminary results of reviews determine at the time it initiated this We will consider comments from and notice are in accordance with changed circumstances review whether interested parties on these preliminary sections 751(b) and 777(i) of the Act and producers accounting for substantially results before issuing the final results of 19 CFR 351.216, 19 CFR 351.221(c)(3), all of the production of the domestic this review.10 and 19 CFR 351.222. like product lacked interest. In the Initiation Notice, Commerce invited Public Comment Dated: August 27, 2020. Jeffrey I. Kessler, interested parties to comment on the Interested parties are invited to issue of domestic industry support for a Assistant Secretary for Enforcement and comment on these preliminary results in Compliance. partial revocation of the Solar Products accordance with 19 CFR [FR Doc. 2020–19393 Filed 9–1–20; 8:45 am] Orders with respect to such panels. 351.309(c)(1)(ii). Written comments may Commerce received no comments. be submitted no later than 14 days after BILLING CODE 3510–DS–P In light of Memory Experts’ Request, the date of publication of these Q CELL USA and SPMOR’s statement of preliminary results. Rebuttals to written lack of interest, and the absence of any DEPARTMENT OF COMMERCE comments, limited to issues raised in interested party comments received such comments, may be filed no later during the comment period, we International Trade Administration than seven days after the due date for preliminarily conclude that producers comments. All submissions must be [C–714–001, C–821–825] accounting for substantially all of the filed electronically using Enforcement production of the domestic like product Phosphate Fertilizers From the and Compliance’s AD and CVD to which the Solar Products Orders Kingdom of Morocco and the Russian Centralized Electronic Service System pertain lack interest in the relief Federation: Postponement of (ACCESS).11 An electronically filed provided by the Solar Products Orders Preliminary Determinations in the document must be received successfully with respect to certain off-grid portable Countervailing Duty Investigations in its entirety by ACCESS, by 5 p.m. small panels that are the subject of Eastern Time on the due dates set forth AGENCY: Enforcement and Compliance, Memory Experts’ Request. Thus, we in this notice. Note that Commerce has International Trade Administration, determine that changed circumstances temporarily modified certain of its Department of Commerce. requirements for serving documents 6 See Section 782(h) of the Act and 19 CFR DATES: Applicable September 2, 2020. 351.222(g). FOR FURTHER INFORMATION CONTACT: Bob 7 See Honey from Argentina; Antidumping and 9 Although the polyester material has stitching on Palmer at (202) 482–9068 (the Kingdom Countervailing Duty Changed Circumstances the perimeter of the unit, the cells are not stitched of Morocco (Morocco)) or George Reviews; Preliminary Intent to Revoke Antidumping into the PET material. and Countervailing Duty Orders, 77 FR 67790, 10 See, e.g., Honey Preliminary CCR Results, 77 Ayache at (202) 482–2623 (the Russian 67791 (November 14, 2012)(Honey Preliminary CCR FR 67790, 67791 (November 14, 2012); Aluminum Results), unchanged in Honey from Argentina; Final Extrusions from the People’s Republic of China: 12 See Temporary Rule Modifying AD/CVD Results of Antidumping and Countervailing Duty Preliminary Results of Changed Circumstances Service Requirements Due to COVID–19; Extension Changed Circumstances Reviews; Revocation of Reviews, and Intent to Revoke Antidumping and of Effective Period, 85 FR 29615 (May 18, 2020); Antidumping and Countervailing Duty Orders, 77 Countervailing Duty Orders in Part, 78 FR 66895 and Temporary Rule Modifying AD/CVD Service FR 77029 (December 31, 2012). (November 7, 2013); and 19 CFR 351.222(g)(3)(v). Requirements Due to COVID–19; Extension of 8 See Initiation Notice. 11 See generally 19 CFR 351.303. Effective Period, 85 FR 41363 (July 10, 2020).
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Federation (Russia)), AD/CVD stated that it requests postponement as II, Enforcement and Compliance, Operations, Office VIII, Enforcement ‘‘additional time is needed for International Trade Administration, and Compliance, International Trade {Commerce} to analyze fully the U.S. Department of Commerce, 1401 Administration, U.S. Department of questionnaire responses, issue Constitution Avenue NW, Washington, Commerce, 1401 Constitution Avenue supplemental questionnaires as DC 20230; telephone: (202) 482–4798. NW, Washington, DC 20230. appropriate, and prepare an accurate SUPPLEMENTARY INFORMATION: SUPPLEMENTARY INFORMATION: preliminary determination.’’ 5 In accordance with 19 CFR Background Background 351.205(e), the petitioner has stated the On May 29, 2009, Commerce On July 16, 2020, the Department of reasons for requesting a postponement published in the Federal Register a Commerce (Commerce) initiated of the preliminary determination, and notice of the CVD order on citric acid countervailing duty (CVD) Commerce finds no compelling reason from China.1 On May 1, 2020, investigations of imports of phosphate to deny the request. Therefore, in Commerce published the notice of fertilizers from Morocco and Russia.1 accordance with section 703(c)(1)(A) of initiation of the second sunset review of Currently, the preliminary the Act, Commerce is postponing the the Order, pursuant to section 751(c) of determinations are due no later than deadline for the preliminary the Tariff Act of 1930, as amended (the September 21, 2020.2 determinations to no later than 130 days Act).2 On May 18, 2020, Commerce after the date on which these received a complete notice of intent to Postponement of Preliminary investigations were initiated, i.e., participate in the sunset review of the Determinations November 23, 2020. Pursuant to section Order from domestic interested parties 3 Section 703(b)(1) of the Tariff Act of 705(a)(1) of the Act and 19 CFR within the deadline specified in 19 CFR 1930, as amended (the Act), requires 351.210(b)(1), the deadline for the final 351.218(d)(1)(i).4 The domestic Commerce to issue the preliminary determinations of these investigations interested parties claimed interested determination in a CVD investigation will continue to be 75 days after the party status pursuant to section within 65 days after the date on which date of the preliminary determinations. 771(9)(C) of the Act as manufacturers in Commerce initiated the investigation. This notice is issued and published the United States of the domestic like However, section 703(c)(1) of the Act pursuant to section 703(c)(2) of the Act product.5 permits Commerce to postpone the and 19 CFR 351.205(f)(1). On June 1, 2020, the domestic preliminary determination until no later Dated: August 28, 2020. interested parties filed an adequate than 130 days after the date on which Joseph A. Laroski Jr., substantive response within the Commerce initiated the investigation if: deadline specified in 19 CFR Deputy Assistant Secretary for Policy and 6 (A) The petitioner 3 makes a timely Negotiations. 351.218(d)(3)(i). Commerce did not receive substantive responses from any request for a postponement; or (B) [FR Doc. 2020–19410 Filed 9–1–20; 8:45 am] other interested parties with respect to Commerce concludes that the parties BILLING CODE 3510–DS–P concerned are cooperating, that the the Order covered by this sunset review. investigation is extraordinarily As a result, pursuant to section complicated, and that additional time is DEPARTMENT OF COMMERCE 751(c)(3)(B) of the Act and 19 CFR necessary to make a preliminary 351.218(e)(1)(ii)(C)(2), Commerce is determination. Under 19 CFR International Trade Administration conducting an expedited (120-day) sunset review of the Order. 351.205(e), the petitioner must submit a [C–570–938] request for postponement 25 days or Scope of the Order more before the scheduled date of the Citric Acid and Certain Citrate Salts The scope of the Order includes all preliminary determination and must From the People’s Republic of China: grades and granulation sizes of citric state the reasons for the request. Final Results of the Expedited Second acid, sodium citrate, and potassium Commerce will grant the request unless Five-Year Sunset Review of the citrate in their unblended forms, it finds compelling reasons to deny the Countervailing Duty Order whether dry or in solution, and request. AGENCY: Enforcement and Compliance, regardless of packaging type. The scope On August 20, 2020, the petitioner also includes blends of citric acid, submitted a timely request that International Trade Administration, Department of Commerce. Commerce postpone the preliminary 1 See Citric Acid and Certain Citrate Salts from 4 SUMMARY: As a result of this sunset CVD determinations. The petitioner the People’s Republic of China: Notice of review, the Department of Commerce Countervailing Duty Order, 74 FR 25705 (May 29, 1 See Phosphate Fertilizers from the Kingdom of (Commerce) finds that revocation of the 2009) (Order). Morocco and the Russian Federation: Initiation of countervailing duty (CVD) order on 2 See Initiation of Five-Year (Sunset) Review, 85 Countervailing Duty Investigations, 85 FR 44505 citric acid and certain citrate salts (citric FR 25386 (May 1, 2020). 3 (July 23, 2020) (Initiation Notice). acid) from the People’s Republic of The domestic interested parties are Archer 2 The current deadline for the preliminary Daniels Midland Company; Cargill, Incorporated; determination falls on September 19, 2020, which China (China) would be likely to lead to and Tate & Lyle Ingredients Americas LLC is a Saturday. Commerce’s practice dictates that continuation or recurrence of (collectively, domestic interested parties). where a deadline falls on a weekend or federal countervailable subsidies, at the levels 4 See Domestic Interested Parties’ Letter, ‘‘Second holiday, the appropriate deadline is the next indicated in the ‘‘Final Results of Sunset Five-Year (‘‘Sunset’’) Review of Antidumping And business day, which is Monday, September 21, Countervailing Duty Orders On Citric Acid And 2020. See Notice of Clarification: Application of Review’’ section of this notice. Certain Citrate Salts from the People’s Republic of ‘‘Next Business Day’’ Rule for Administrative DATES: Applicable September 2, 2020. China: Domestic Industry’s Notice Of Intent To Determination Deadlines Pursuant to the Tariff Act FOR FURTHER INFORMATION CONTACT: Ian Participate,’’ dated May 18, 2020. of 1930, As Amended, 70 FR 24533 (May 10, 2005). 5 Hamilton, AD/CVD Operations, Office Id. at 2. 3 The petitioner in these proceedings is the 6 See Domestic Interested Parties’ Letter, ‘‘Second Mosaic Company. Five-Year (‘‘Sunset’’) Review of The Countervailing 4 See Petitioner’s Letters, ‘‘Phosphate Fertilizers from Russia: Petitioner’s Request for Postponement Duty Order On Citric Acid And Certain Citrate Salts from Morocco: Petitioner’s Request for of the Preliminary Determination,’’ dated August from the People’s Republic of China: Domestic Postponement of the Preliminary Determination,’’ 20, 2020. Industry’s Substantive Response,’’ dated June 1, dated August 20, 2020; and ‘‘Phosphate Fertilizers 5 Id. 2020.
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sodium citrate, and potassium citrate; as version of the Issues and Decision VIII. Recommendation well as blends with other ingredients, Memorandum can be accessed directly [FR Doc. 2020–19394 Filed 9–1–20; 8:45 am] such as sugar, where the unblended at https://enforcement.trade.gov/frn/. BILLING CODE 3510–DS–P form(s) of citric acid, sodium citrate, The signed and electronic versions of and potassium citrate constitute 40 the Issues and Decision Memorandum percent or more, by weight, of the blend. are identical in content. DEPARTMENT OF DEFENSE The scope of the Order also includes all Final Results of Sunset Review forms of crude calcium citrate, Department of the Navy including dicalcium citrate Pursuant to sections 751(c)(1) and monohydrate, and tricalcium citrate 752(b) of the Act, we determine that Meeting of the U.S. Naval Academy tetrahydrate, which are intermediate revocation of the Order on citric acid Board of Visitors products in the production of citric from China would be likely to lead to AGENCY: Department of the Navy, acid, sodium citrate, and potassium continuation or recurrence of Department of Defense (DoD). citrate. The scope of the Order does not countervailable subsidies at the ACTION: include calcium citrate that satisfies the Notice of partially closed following net countervailable subsidy meeting. standards set forth in the United States rates: Pharmacopeia and has been mixed with SUMMARY: The DoD is publishing this a functional excipient, such as dextrose Net countervailable notice to announce that the following or starch, where the excipient Manufacturers/producers/exporters subsidy Federal Advisory Committee meeting of constitutes at least 2 percent, by weight, (percent) the U.S. Naval Academy Board of of the product. The scope of the Order TTCA Co., Ltd ...... 60.07 Visitors, hereafter ‘‘Board,’’ will take includes the hydrous and anhydrous Yixing Union Biochemical Co., Ltd. place. forms of citric acid, the dihydrate and and Yixing Union Cogeneration DATES: Open to the public, September anhydrous forms of sodium citrate, Co., Ltd ...... 52.22 14, 2020, from 10 a.m. to 12 p.m. Closed otherwise known as citric acid sodium Anhui BBCA Biochemical Co., Ltd .. 166.34 All Others ...... 55.53 to the public, September 14, 2020, from salt, and the monohydrate and 12 p.m. to 1 p.m. monopotassium forms of potassium citrate. Sodium citrate also includes Administrative Protective Order (APO) ADDRESSES: This a virtual meeting that both trisodium citrate and monosodium This notice also serves as the only will be broadcasted live from the United citrate, which are also known as citric reminder to parties subject to States Naval Academy in Annapolis, MD. Escort is not required. acid trisodium salt and citric acid administrative protective order (APO) of monosodium salt, respectively. their responsibility concerning the FOR FURTHER INFORMATION CONTACT: Citric acid and sodium citrate are return or destruction of proprietary Major Raphael Thalakottur, USMC, classifiable under 2918.14.0000 and information disclosed under an APO in Executive Secretary to the Board of 2918.15.1000 of the Harmonized Tariff accordance with 19 CFR 351.305. Visitors, Office of the Superintendent, Schedule of the United States (HTSUS), Timely notification of the return or U.S. Naval Academy, Annapolis, MD respectively. Potassium citrate and destruction of APO materials, or 21402–5000, 410–293–1503, thalakot@ crude calcium citrate are classifiable conversion to judicial protective orders, usna.edu, or visit https:// under 2918.15.5000 and 3824.90.9290 of is hereby requested. Failure to comply www.usna.edu/PAO/Superintendent/ the HTSUS, respectively. Blends that with the regulations and terms of an bov.php. include citric acid, sodium citrate, and APO is a violation which is subject to SUPPLEMENTARY INFORMATION: This potassium citrate are classifiable under sanction. meeting is being held under the 3824.90.9290 of the HTSUS. Although provisions of the Federal Advisory the HTSUS subheadings are provided Notification to Interested Parties Committee Act (FACA) of 1972 (5 for convenience and customs purposes, We are issuing and publishing the U.S.C., Appendix, as amended), the our written description of the scope is final results and this notice in Government in the Sunshine Act of dispositive. accordance with sections 751(c), 752(c), 1976 (5 U.S.C. 552b, as amended), the Analysis of Comments Received and 777(i)(1) of the Act, and 19 CFR General Services Administration’s 351.218(f)(3). (GSA) Federal Advisory Committee A complete discussion of all issues Management Final Rule (41 CFR part raised in this sunset review, including Dated: August 27, 2020. 102–3). the likelihood of continuation or Jeffrey I. Kessler, Purpose of Meeting: The U.S. Naval recurrence of subsidization in the event Assistant Secretary for Enforcement and Academy Board of Visitors will meet to of revocation of the Order and the Compliance. make such inquiry, as the Board deems countervailable subsidy rates likely to Appendix necessary, into the state of morale and prevail if the Order were to be revoked, discipline, the curriculum, instruction, is provided in the Issues and Decision List of Topics Discussed in the Issues and Decision Memorandum physical equipment, fiscal affairs, and Memorandum. A list of the topics academic methods of the Naval discussed in the Issues and Decision I. Summary Academy. Memorandum is attached as an II. Background appendix to this notice. The Issues and III. Scope of the Order Agenda Decision Memorandum is a public IV. History of the Order V. Legal Framework Proposed meeting agenda for document and is on file electronically September 14, 2020. via Enforcement and Compliance’s VI. Discussion of the Issues 1. Likelihood of Continuation or 0930–1000 Assemble/Members log on Antidumping and Countervailing Duty Recurrence of a Countervailable Subsidy (Broadcasted to Public) Centralized Electronic Service System 2. Net Countervailable Subsidy Rates 1000 Call to Order (Broadcasted to (ACCESS). ACCESS is available to Likely to Prevail Public) registered users at https:// 3. Nature of the Subsidies 1000–1155 Business Session access.trade.gov. In addition, a complete VII. Final Results of Sunset Review (Broadcasted to Public)
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1155–1200 Break (Broadcasted to since the Board operates under the requirements and provide the requested Public) provisions of the FACA, as amended, all data in the desired format. ED is 1200–1300 Executive Session (Closed to submitted comments and public soliciting comments on the proposed Public) presentations will be treated as public information collection request (ICR) that Current details on the board of documents and will be made available is described below. The Department of visitors may be found at https:// for public inspection, including, but not Education is especially interested in www.usna.edu/PAO/Superintendent/ limited to, being posted on the board public comment addressing the bov.php. website. following issues: (1) Is this collection The executive session of the meeting Dated: August 27, 2020. necessary to the proper functions of the from 12:00 p.m. to 1:00 p.m. on Department; (2) will this information be September 14, 2020, will consist of D.J. Antenucci, processed and used in a timely manner; discussions of new and pending Commander, Judge Advocate General’s Corps, (3) is the estimate of burden accurate; administrative or minor disciplinary U.S. Navy, Federal Register Liaison Officer. (4) how might the Department enhance infractions and non-judicial [FR Doc. 2020–19336 Filed 9–1–20; 8:45 am] punishments involving midshipmen BILLING CODE 3810–FF–P the quality, utility, and clarity of the attending the Naval Academy to include information to be collected; and (5) how but not limited to, individual honor or might the Department minimize the conduct violations within the Brigade, DEPARTMENT OF EDUCATION burden of this collection on the respondents, including through the use the disclosure of which would [Docket No.: ED–2020–SCC–0101] constitute a clearly unwarranted of information technology. Please note invasion of personal privacy. For this Agency Information Collection that written comments received in reason, the executive session of this Activities; Submission to the Office of response to this notice will be meeting will be closed to the public, as Management and Budget for Review considered public records. the discussion of such information and Approval; Comment Request; Title of Collection: Protection and cannot be adequately segregated from Protection and Advocacy of Individual Advocacy of Individual Rights Program other topics, which precludes opening Rights Program Assurances Assurances. the executive session of this meeting to OMB Control Number: 1820–0625. the public. Accordingly, the Secretary of AGENCY: Office of Special Education and the Navy, in consultation with the Rehabilitative Services (OSERS), Type of Review: An extension of an Department of the Navy General Department of Education (ED). existing information collection. Counsel, has determined in writing that ACTION: Notice. Respondents/Affected Public: State, the meeting shall be partially closed to Local and Tribal Governments. the public because the discussions SUMMARY: In accordance with the Total Estimated Number of Annual during the executive session from 12 Paperwork Reduction Act of 1995, ED is p.m. to 1 p.m. will be concerned with proposing an extension of an existing Responses: 57. matters protected under sections 552b(c) information collection. Total Estimated Number of Annual (5), (6), and (7) of title 5, United States DATES: Interested persons are invited to Burden Hours: 9. Code. submit comments on or before October Abstract: Section 509 of the 2, 2020. Authority: 5 U.S.C. 552b Rehabilitation Act of 1973 ADDRESSES: Written comments and Meeting Accessibility: Pursuant to (Rehabilitation Act), as amended by the recommendations for proposed FACA and 41 CFR 102–3.140, this Title IV of Workforce Innovation and information collection requests should meeting is virtually open to the public. Opportunity Act (WIOA) and its be sent within 30 days of publication of This meeting will be broadcasted live implementing Federal Regulations at 34 this notice to www.reginfo.gov/public/ from the United States Naval Academy CFR part 381, require the PAIR grantees do/PRAMain. Find this particular to include audio and video. The to submit an application to the RSA information collection request by broadcast will be close captioned for the Commissioner in order to receive selecting ‘‘Department of Education’’ duration of the public portion of the assistance under Section 509 of the under ‘‘Currently Under Review,’’ then meeting. The link to view the meeting Rehabilitation Act. The Rehabilitation check ‘‘Only Show ICR for Public will be posted at https://www.usna.edu/ Act requires that the application contain Comment’’ checkbox. PAO/Superintendent/bov.php forty- Assurances to which the grantees must eight hours prior to the meeting. Due to FOR FURTHER INFORMATION CONTACT: For comply. Section 509(f) of the expected health directives in light of specific questions related to collection Rehabilitation Act specifies the COVID–19, the public cannot be activities, please contact Samuel Pierre, Assurances. All 57 PAIR grantees are accommodated to attend the meeting in 202–245–6488. required to be part of the protection and person. SUPPLEMENTARY INFORMATION: The advocacy system in each State Written Statements: Per Section Department of Education (ED), in established under the Developmental 10(a)(3) of the FACA and 41 CFR 102– accordance with the Paperwork Disabilities Assistance and Bill of Rights 3.105(j) and 102–3.140, interested Reduction Act of 1995 (PRA) (44 U.S.C. Act of 2000 (42 U.S.C. 6041 et seq.). persons may submit a written statement 3506(c)(2)(A)), provides the general for consideration at any time, but public and Federal agencies with an Dated: August 28, 2020. should be received by the Designated opportunity to comment on proposed, Kate Mullan, Federal Officer at least 15 business days revised, and continuing collections of PRA Coordinator, Strategic Collections and prior to the meeting date so that the information. This helps the Department Clearance Governance and Strategy Division, comments may be made available to the assess the impact of its information Office of Chief Data Officer, Office of Board for their consideration prior to collection requirements and minimize Planning, Evaluation and Policy the meeting. Written statements should the public’s reporting burden. It also Development. be submitted via mail to 121 Blake Rd, helps the public understand the [FR Doc. 2020–19392 Filed 9–1–20; 8:45 am] Annapolis MD 21402. Please note that Department’s information collection BILLING CODE 4000–01–P
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DEPARTMENT OF EDUCATION requirements and provide the requested 37,000 students who were first-time data in the desired format. ED is beginning students during the 2019–20 [Docket No.: 1850–0631] soliciting comments on the proposed academic year. The BPS:20/22 field test Agency Information Collection information collection request (ICR) that will include approximately 3,700 Activities; Comment Request; 2020/22 is described below. The Department of students who first began in the 2018–19 Beginning Postsecondary Students Education is especially interested in academic year. These students will be (BPS:20/22) Field Test public comment addressing the asked to complete a survey and following issues: (1) Is this collection administrative data will also be AGENCY: National Center for Education necessary to the proper functions of the collected for them. Administrative data Statistics (NCES), Department of Department; (2) will this information be matching will be conducted with Education (ED). processed and used in a timely manner; sources including the National Student ACTION: Notice. (3) is the estimate of burden accurate; Loan Data System (NSLDS), containing (4) how might the Department enhance federal loan and grant files; the Central SUMMARY: In accordance with the the quality, utility, and clarity of the Processing System (CPS), which houses Paperwork Reduction Act of 1995, ED is information to be collected; and (5) how and processes data contained in the Free proposing a new information collection. might the Department minimize the Application for Federal Student Aid DATES: Interested persons are invited to burden of this collection on the (FAFSA) forms; the National Student submit comments on or before respondents, including through the use Clearinghouse (NSC) which provides November 2, 2020. of information technology. Please note enrollment and degree verification; ADDRESSES: To access and review all the that written comments received in vendors of national undergraduate, documents related to the information response to this notice will be graduate, and professional student collection listed in this notice, please considered public records. admission tests; and possible other use http://www.regulations.gov by Title of Collection: 2020/22 Beginning administrative data sources such as the searching the Docket ID number ED– Postsecondary Students (BPS:20/22) Veterans Benefits Administration 2020–SCC–0142. Comments submitted Field Test. (VBA). These data will be obtained in response to this notice should be OMB Control Number: 1850–0631. through file matching/downloading. submitted electronically through the Type of Review: A new information This submission covers BPS:20/22 Federal eRulemaking Portal at http:// collection. field test materials and procedures www.regulations.gov by selecting the Respondents/Affected Public: required for conducting the student Docket ID number or via postal mail, Individuals or Households. survey and for matching data to commercial delivery, or hand delivery. Total Estimated Number of Annual administrative records. Following the If the regulations.gov site is not Responses: 7,568. field test study in 2021, NCES will Total Estimated Number of Annual available to the public for any reason, provide the Office of Management and Burden Hours: 1,226. ED will temporarily accept comments at Abstract: The 2020/22 Beginning Budget (OMB) with a memorandum [email protected]. Please include the Postsecondary Students Field Test summarizing any changes planned for docket ID number and the title of the (BPS:20/22) is conducted by the the full-scale data collection, and a information collection request when National Center for Education Statistics, revised OMB package. The materials requesting documents or submitting part of the Institute of Education that will be used in the BPS:20/22 full- comments. Please note that comments Sciences, within the Department of scale study will be based upon the field submitted by fax or email and those Education, and is part of the Beginning test materials included in this submitted after the comment period will Postsecondary Students Longitudinal submission. Additionally, this not be accepted. Written requests for Study data collection program at https:// submission is designed to adequately information or comments submitted by nces.ed.gov/surveys/bps/. The Sample justify the need for and overall practical postal mail or delivery should be Collection will begin 03/01/21 and end utility of the full study, presenting the addressed to the Director of the Strategic 06/30/21. overarching plan for all of the phases of Collections and Clearance Governance BPS is designed to follow a cohort of the data collection and providing as and Strategy Division, U.S. Department students who enroll in postsecondary much detail about the measures to be of Education, 400 Maryland Ave. SW, education for the first time during the used as is available at the time of this LBJ, Room 6W208B, Washington, DC same academic year, irrespective of the submission. As part of this submission, 20202–8240. date of high school completion. The NCES is publishing a notice in the FOR FURTHER INFORMATION CONTACT: For study collects data on students’ Federal Register allowing first a 60- and specific questions related to collection persistence in and completion of then a 30-day public comment period. activities, please contact Carrie Clarady, postsecondary education programs; Field test materials, procedures, and 202–245–6347. their transition to employment; results will inform the full-scale study. SUPPLEMENTARY INFORMATION: The demographic characteristics; and After completion of the field test, NCES Department of Education (ED), in changes over time in their goals, marital will publish a notice in the Federal accordance with the Paperwork status, income, and debt, among other Register allowing additional 30-day Reduction Act of 1995 (PRA) (44 U.S.C. indicators. Data from BPS are used to public comment period on the final 3506(c)(2)(A)), provides the general help researchers and policymakers details of the BPS:20/22 full-scale study. public and Federal agencies with an better understand how financial aid Dated: August 28, 2020. opportunity to comment on proposed, influences persistence and completion, Stephanie Valentine, revised, and continuing collections of what percentages of students complete PRA Coordinator, Strategic Collections and information. This helps the Department various degree programs, what are the Clearance Governance and Strategy Division, assess the impact of its information early employment and wage outcomes Office of Chief Data Officer, Office of collection requirements and minimize for certificate and degree attainers, and Planning, Evaluation and Policy the public’s reporting burden. It also why students leave school. Development. helps the public understand the BPS:20/22 will be a nationally- [FR Doc. 2020–19423 Filed 9–1–20; 8:45 am] Department’s information collection representative sample of approximately BILLING CODE 4000–01–P
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DEPARTMENT OF EDUCATION 84.324A, 84.324B, 84.324P, and www.govinfo.gov. At this site you can 84.324R, that are affected by Fire view this document, as well as all other Reopening; Applications for New Management Assistance Declarations in documents of this Department Awards; Education Research and California (FEMA Disaster designations published in the Federal Register, in Special Education Research Grant 5331, 5332, 5329), Nevada (FEMA text or Portable Document Format Programs Disaster designation 5328), Oregon (PDF). To use PDF you must have (FEMA Disaster designation 5327), and Adobe Acrobat Reader, which is AGENCY: Institute of Education Sciences, Washington (FEMA Disaster designation available free at the site. Department of Education. 5330) and a Major Disaster Declaration You may also access documents of the ACTION: Notice. in Iowa (FEMA Disaster designation Department published in the Federal Register by using the article search SUMMARY: On May 4, 2020, we 4557). See www.fema.gov/disasters/. Each application submitted under this feature at: www.federalregister.gov. published in the Federal Register a Notice must include an assurance that Specifically, through the advanced notice inviting applications (NIA) for the applicant meets the eligibility search feature at this site, you can limit the fiscal year (FY) 2021 Education requirements for the jurisdictions your search to documents published by Research and Special Education covered by the FEMA designations the Department. Research Grant Programs competitions, noted above. The assurance may either Catalog of Federal Domestic Assistance Mark Schneider, be based on (1) the location of the (CFDA) numbers 84.305A, 84.305B, applicant institution or (2) the Director, Institute of Education Sciences. 84.305C, 84.305R, 84.324A, 84.324B, location(s) of the essential staff, in [FR Doc. 2020–19391 Filed 9–1–20; 8:45 am] 84.324P, and 84.324R. The NIA which case the explanation should BILLING CODE 4000–01–P established a deadline date of August include the name(s) and remote work 20, 2020, for the transmittal of location(s) for the personnel or applications. This notice reopens the consultants key to the preparation of the DEPARTMENT OF EDUCATION competition until September 8, 2020, for application. certain prospective eligible applicants President’s Board of Advisors on Applicants that are eligible for an described elsewhere in this notice. Historically Black Colleges and extension under this notice (because Universities DATES: Deadline for Transmittal of they are located in, or have personnel or Applications: September 8, 2020. consultants that are critical to the timely AGENCY: Office of Undersecretary, FOR FURTHER INFORMATION CONTACT: For development and submission of President’s Board of Advisors on the contact person associated with a applications who are located in, one of Historically Black Colleges and particular research competition, please the areas described in the preceding Universities, U.S. Department of refer to the chart published in the paragraph) and have already timely Education. Federal Register on May 4, 2020 (85 FR submitted applications under the FY ACTION: Announcement of an open 26445) and available at 2021 Education Research and Special meeting. www.govinfo.gov/app/details/FR-2020- Education Research Grant Programs 05-04/2020-09446, as well as in the competitions may resubmit applications SUMMARY: This notice sets forth the relevant Request for Application but are not required to do so. If a new agenda for the September 23, 2020, (available at https://ies.ed.gov/funding/) application is not submitted, the meeting of the President’s Board of and application package. Department will use the application that Advisors on Historically Black Colleges If you use a telecommunications was submitted by the original deadline. and Universities (PBA) and provides device for the deaf (TDD) or a text If a new application is submitted, the information to members of the public telephone (TTY), call the Federal Relay Department will consider the about the meeting. Notice of the meeting Service (FRS), toll free, at 1–800–877– application that is last submitted and is required by Section 10(a)(2) of the 8339. timely received. Applications that did Federal Advisory Committee Act (FACA) and is intended to notify the SUPPLEMENTARY INFORMATION: On May 4, not meet the original deadline must use 2020, we published the NIA for the FY the application package for the public of its opportunity to attend. 2021 Education Research and Special reopened competition, available at DATES: The PBA meeting will be held on Education Research Grant Programs grants.gov, to be considered for review. Wednesday, September 23, 2020 from 9 competitions in the Federal Register (85 Note: All information in the NIA for this a.m. to 11:00 a.m. E.D.T. The meeting FR 26445). We are reopening this competition remains the same, except for the will be a virtual meeting via webinar. competition in order to allow deadline for the transmittal of applications. Please note admittance instructions applicants, including personnel that are Program Authority: 20 U.S.C. 9501 et under the SUPPLEMENTARY INFORMATION critical to the preparation and seq. section of this notice. submission of applications, more time Accessible Format: Individuals with FOR FURTHER INFORMATION CONTACT: to prepare and submit applications that disabilities can obtain this document Sedika Franklin, Designated Federal were delayed by the severe storm and a copy of the application package in Official, U.S. Department of Education, disaster declaration in Iowa or the an accessible format (e.g., braille, large White House Initiative on Historically wildfire disaster declarations in print, audiotape, or compact disc) on Black Colleges and Universities, 400 California, Nevada, Oregon, and request to the program contact person Maryland Avenue SW, Washington, DC Washington. listed under FOR FURTHER INFORMATION 20202; telephone: (202) 453–5630, or Eligibility: The extension of the CONTACT. email [email protected]. application deadline date in this notice Electronic Access to This Document: SUPPLEMENTARY INFORMATION: applies to eligible applicants under the The official version of this document is PBA’s Statutory Authority and FY 2021 Education Research and the document published in the Federal Function: The PBA is established by Special Education Research Grant Register. You may access the official Executive Order 13779 (February 28, Programs competitions, CFDA numbers edition of the Federal Register and the 2017) and is continued by Executive 84.305A, 84.305B, 84.305C, 84.305R, Code of Federal Regulations at Order 13889 (September 27, 2019). The
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PBA is also governed by the provisions Members of the public who wished to your search to documents published by of the FACA (5 U.S.C. App. 2), which submit a question or comment to be the Department. sets forth standards for the formation addressed during the public comment Authority: Executive Order 13779, and use of advisory committees. The period of the meeting but could not be Continued by Executive Order 13889. purpose of the PBA is to advise the accommodated on the agenda, and those President, through the White House who were unable to attend the meeting Diane Auer Jones, Initiative on Historically Black Colleges via webinar, are invited to submit Principal Deputy Under Secretary delegated and Universities (Initiative), on all written statements pertaining to the the duties of Under Secretary. matters pertaining to strengthening the work of the PBA. All written statements [FR Doc. 2020–19320 Filed 9–1–20; 8:45 am] educational capacity of Historically should be directed to by email to the BILLING CODE 4000–01–P Black Colleges and Universities PBA Designated Federal Official, Sedika (HBCUs). Franklin, [email protected]. The PBA shall advise the President, All written statements and questions DEPARTMENT OF EDUCATION through the Initiative, on all matters or comments made during the public [Docket No.: ED–2020–SCC–0144] pertaining to strengthening the comment period will become part of the educational capacity of HBCUs, in official record of the PBA. Agency Information Collection particular, in the following areas: (i) Admittance Instructions: All Activities; Comment Request; Improving the identity, visibility, and participants will be attending via Evaluation of the Innovative distinctive capabilities and overall webinar and must register at: https:// Assessment Demonstration Authority competitiveness of HBCUs; (ii) engaging ems8.intellor.com/ Pilot Program-Survey Data Collection the philanthropic, business, ?do=register&t=1&p=830751 by 5 p.m. government, military, homeland- Eastern Time, September 21, 2020. AGENCY: Institute for Education Sciences security, and education communities in Access to Records of the Meeting: The (IES), Department of Education (ED). a national dialogue regarding new Department will post the official ACTION: Notice. HBCU programs and initiatives; (iii) transcript of the meeting on the PBA improving the ability of HBCUs to website 90 days after the meeting at SUMMARY: In accordance with the remain fiscally secure institutions that www.ed.gov. Pursuant to FACA, the Paperwork Reduction Act of 1995, ED is can assist the nation in reaching its goal public may also inspect the materials at proposing a new information collection. of having the highest proportion of 400 Maryland Avenue SW, Washington, DATES: Interested persons are invited to college graduates by 2020; (iv) elevating DC, by emailing [email protected] or submit comments on or before the public awareness of HBCUs; and (v) by calling (202) 453–5634 to schedule November 2, 2020. encouraging public-private investments an appointment. ADDRESSES: To access and review all the in HBCUs. Reasonable Accommodations: The documents related to the information Meeting Agenda: The meeting agenda webinar meeting is accessible to collection listed in this notice, please will include welcome remarks; an individuals with disabilities. If you will use http://www.regulations.gov by need an auxiliary aid or service to update from the U.S. Department of searching the Docket ID number ED– participate in the meeting (e.g., Education; a presentation on The Future 2020–SCC–0144. Comments submitted interpreting service, assistive listening of Higher Education and U.S. in response to this notice should be device, or materials in an alternate Competitiveness; an update from the submitted electronically through the format), notify the contact person listed White House Initiative on HBCU; and Federal eRulemaking Portal at http:// in FOR FURTHER INFORMATION CONTACT member discussion. The public www.regulations.gov by selecting the section of this notice by September 6, comment period will begin immediately Docket ID number or via postal mail, 2020. We will attempt to meet all following these agenda items. The final commercial delivery, or hand delivery. requests received by the due date, we agenda will be posted on the PBA page If the regulations.gov site is not may not be able to make available the at: https://sites.ed.gov/whhbcu/ available to the public for any reason, requested auxiliary aid or service commissioners-profile/presidents- ED will temporarily accept comments at because of insufficient time to arrange board-of-advisors-on-historically-black- [email protected]. Please include the it. colleges-and-universities-2018-to- docket ID number and the title of the Electronic Access to this Document: present/meetings-and-minutes/. information collection request when Members of the public who wish to The official version of this document is requesting documents or submitting attend the webinar meeting must follow the document published in the Federal comments. Please note that comments the instructions noted below. RSVPs Register. Free internet access to the submitted by fax or email and those must be received by 5 p.m. on official edition of the Federal Register submitted after the comment period will September 21, 2020. A RSVP should and the Code of Federal Regulations is not be accepted. Written requests for include the name(s), title, organization/ available via the Federal Digital System information or comments submitted by affiliation, and email address, of the at: www.gpo.gov/fdsys. At this site you postal mail or delivery should be person(s) requesting to attend. can view this document, as well as all addressed to the Director of the Strategic Submission of Requests to Participate other documents of this Department Collections and Clearance Governance in Public Comment: The PBA agenda published in the Federal Register, in and Strategy Division, U.S. Department will include a public comment period text or Adobe Portable Document of Education, 400 Maryland Ave. SW, for the public to submit questions or Format (PDF). To use PDF, you must LBJ, Room 6W208B, Washington, DC comments to the PBA. The public have Adobe Acrobat Reader, which is 20202–8240. comment period will start at 10:30 a.m. available free at the site. on Wednesday, September 23, 2020 and You may also access documents of the FOR FURTHER INFORMATION CONTACT: For will not exceed ten minutes. Comments Department published in the Federal specific questions related to collection will be taken via the chat function on Register by using the article search activities, please contact Thomas Wei, a first-come, first-served basis by the feature at: www.federalregister.gov. 202–341–0626. call moderator and will be limited to Specifically, through the advanced SUPPLEMENTARY INFORMATION: The two minutes per person. search feature at this site, you can limit Department of Education (ED), in
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accordance with the Paperwork assistance to tackle the largest barriers requirements and provide the requested Reduction Act of 1995 (PRA) (44 U.S.C. to adequate progress in pilot states and data in the desired format. ED is 3506(c)(2)(A)), provides the general provide a valuable guide for other states soliciting comments on the proposed public and Federal agencies with an that may want to develop a new information collection request (ICR) that opportunity to comment on proposed, assessment in the future. is described below. The Department of revised, and continuing collections of Dated: August 28, 2020. Education is especially interested in information. This helps the Department Stephanie Valentine, public comment addressing the assess the impact of its information following issues: (1) Is this collection collection requirements and minimize PRA Coordinator, Strategic Collections and Clearance Governance and Strategy Division, necessary to the proper functions of the the public’s reporting burden. It also Office of Chief Data Officer, Office of Department; (2) will this information be helps the public understand the Planning, Evaluation and Policy processed and used in a timely manner; Department’s information collection Development. (3) is the estimate of burden accurate; requirements and provide the requested [FR Doc. 2020–19421 Filed 9–1–20; 8:45 am] (4) how might the Department enhance data in the desired format. ED is BILLING CODE 4000–01–P the quality, utility, and clarity of the soliciting comments on the proposed information to be collected; and (5) how information collection request (ICR) that might the Department minimize the is described below. The Department of DEPARTMENT OF EDUCATION burden of this collection on the Education is especially interested in respondents, including through the use public comment addressing the [Docket No.: ED–2020–SCC–0038] of information technology. Please note following issues: (1) Is this collection Agency Information Collection that written comments received in necessary to the proper functions of the Activities; Submission to the Office of response to this notice will be Department; (2) will this information be Management and Budget for Review considered public records. processed and used in a timely manner; Title of Collection: High School and (3) is the estimate of burden accurate; and Approval; Comment Request; High School and Beyond 2021 (HS&B:21) Beyond 2021 (HS&B:21) Base-Year Full- (4) how might the Department enhance Scale Study Data Collection. the quality, utility, and clarity of the Base-Year Full-Scale Study Data Collection OMB Control Number: 1850–0944. information to be collected; and (5) how Type of Review: A revision of an might the Department minimize the AGENCY: National Center for Education existing information collection. burden of this collection on the Statistics (NCES), Department of Respondents/Affected Public: State, respondents, including through the use Education (ED). Local and Tribal Governments. of information technology. Please note ACTION: Notice. Total Estimated Number of Annual that written comments received in Responses: 121,952. SUMMARY: In accordance with the response to this notice will be Total Estimated Number of Annual Paperwork Reduction Act of 1995, ED is considered public records. Burden Hours: 50,361. Title of Collection: Evaluation of the proposing a revision to an existing Abstract: The High School and Innovative Assessment Demonstration information collection. Beyond 2021 study (HS&B:21) will be Authority Pilot Program-Survey Data DATES: Interested persons are invited to the sixth in a series of longitudinal Collection. submit comments on or before October studies at the high school level OMB Control Number: 1850–NEW. 2, 2020. Type of Review: A new information conducted by the National Center for ADDRESSES: Written comments and Education Statistics (NCES), within the collection. recommendations for proposed Respondents/Affected Public: State, Institute of Education Sciences (IES) of information collection requests should Local and Tribal Governments. the U.S. Department of Education. Total Estimated Number of Annual be sent within 30 days of publication of HS&B:21 will follow a nationally Responses: 762. this notice to www.reginfo.gov/public/ representative sample of ninth grade Total Estimated Number of Annual do/PRAMain. Find this particular students from the start of high school in Burden Hours: 375. information collection request by the fall of 2021 to the spring of 2024 Abstract: This study will meet the selecting ‘‘Department of Education’’ when most will be in twelfth grade. A Congressional mandate to evaluate the under ‘‘Currently Under Review,’’ then field test will be conducted one year Innovative Assessment Demonstration check ‘‘Only Show ICR for Public prior to the full-scale study. The study Authority Pilot Program (IADA). The Comment’’ checkbox. sample will be freshened in 2024 to program (Title I, Section 1204 of the FOR FURTHER INFORMATION CONTACT: For create a nationally representative Every Student Succeeds Act, or ESSA) specific questions related to collection sample of twelfth-grade students. A high allows the U.S. Department of activities, please contact Carrie Clarady, school transcript collection and Education to exempt a handful of states 202–245–6437. additional follow-up data collections from certain testing requirements if they SUPPLEMENTARY INFORMATION: The beyond high school are also planned. agree to pilot new types of assessments. Department of Education (ED), in In preparation for the HS&B:21 Base- The study will produce a ‘‘Progress accordance with the Paperwork Year Full-Scale study (BYFS), Report’’ and a ‘‘Best Practices Report,’’ Reduction Act of 1995 (PRA) (44 U.S.C. scheduled to take place in the fall of as mandated by Congress. The Progress 3506(c)(2)(A)), provides the general 2021, the Office of Management and Report will be based on existing public and Federal agencies with an Budget (OMB) approved (OMB #1850– documents from pilot states. The opportunity to comment on proposed, 0944 v.1–5) a request to conduct the subsequent Best Practices Report will revised, and continuing collections of HS&B:21 Base-Year Field Test (BYFT) add, via surveys, the perspectives of information. This helps the Department and the BYFS sampling and state, district leaders, principals, and teachers assess the impact of its information school district, school, and parent on the development, implementation, collection requirements and minimize recruitment activities, both of which and outcomes of IADA assessments. the public’s reporting burden. It also began in the fall of 2019. These These reports will help the Department helps the public understand the activities include collecting student appropriately target its technical Department’s information collection rosters and selecting the BYFS sample.
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BYFT activities ended in December in response to this notice should be Type of Review: A new information 2019. submitted electronically through the collection. The study initially planned to Federal eRulemaking Portal at http:// Respondents/Affected Public: State, conduct its BYFS data collection in the www.regulations.gov by selecting the Local and Tribal Governments. fall of 2020 and published all materials Docket ID number or via postal mail, for a 60D review in February 2020. Due commercial delivery, or hand delivery. Total Estimated Number of Annual to the COVID–19 pandemic, it was If the regulations.gov site is not Responses: 42. decided to postpone this collection for available to the public for any reason, Total Estimated Number of Annual one year and pause the review after the ED will temporarily accept comments at Burden Hours: 95. 60D period was completed in April [email protected]. Please include the Abstract: This is a congressionally- 2020. OMB provided approval to adjust docket ID number and the title of the mandated evaluation of the scholarship the schedule in June 2020 (OMB #1850– information collection request when component of the Gaining Early 0944 v.6). This submission for 30D requesting documents or submitting review is to request approval for the Fall comments. Please note that comments Awareness and Readiness for 2021 BYFS study data collection. A submitted by fax or email and those Undergraduate Programs (GEAR UP) document describing all changes submitted after the comment period will program. Established in the 1998 Higher between the documents presented in the not be accepted. Written requests for Education Act (HEA), GEAR UP 60D review and those presented in the information or comments submitted by provides competitive, multi-year grants 30D review is attached to this package. postal mail or delivery should be to states and local partnerships to Part A of this submission presents addressed to the Director of the Strategic prepare students attending high-poverty information on the basic design of Collections and Clearance Governance middle and high schools for college HS&B:21. Part B discusses the statistical and Strategy Division, U.S. Department enrollment and success. State grantees methods employed. Part C presents of Education, 400 Maryland Ave. SW, must use at least half of their funds to justification for the questionnaire LBJ, Room 6W208B, Washington, DC provide college scholarships to GEAR content. Appendix A provides the 20202–8240. UP students, unless they receive a communication materials to be used FOR FURTHER INFORMATION CONTACT: For waiver from the U.S. Department of during state, school district, school, and specific questions related to collection Education (ED). parent BYFS recruitment and data activities, please contact Daphne Garcia, How GEAR UP grantees provide collection activities. Appendix B 202–245–6592. scholarships to support students’ provides the full-scale data collection SUPPLEMENTARY INFORMATION: The enrollment and persistence in college is instruments. The primary contractor to Department of Education (ED), in of interest for several reasons. First, this NCES for this study is RTI International accordance with the Paperwork (Contract #919900–18–R0018). component distinguishes GEAR UP Reduction Act of 1995 (PRA) (44 U.S.C. from other federal college access Dated: August 28, 2020. 3506(c)(2)(A)), provides the general programs that serve primarily low- Stephanie Valentine, public and Federal agencies with an income students or those from high PRA Coordinator, Strategic Collections and opportunity to comment on proposed, need schools. Second, the 2008 HEA revised, and continuing collections of Clearance Governance and Strategy Division, reauthorization gave state grantees Office of Chief Data Officer, Office of information. This helps the Department flexibility in how they implement and Planning, Evaluation and Policy assess the impact of its information fund the scholarships. While program Development. collection requirements and minimize [FR Doc. 2020–19420 Filed 9–1–20; 8:45 am] the public’s reporting burden. It also statute requires states to set aside at least half of their GEAR UP funds to BILLING CODE 4000–01–P helps the public understand the Department’s information collection provide scholarships (states that do are requirements and provide the requested referred to as ‘‘set-aside states’’), states DEPARTMENT OF EDUCATION data in the desired format. ED is may be granted a waiver to devote all of [Docket No.: ED–2020–SCC–0143] soliciting comments on the proposed their GEAR UP funds to other activities information collection request (ICR) that (referred to as ‘‘waiver states’’) if they Agency Information Collection is described below. The Department of can ensure that GEAR UP students have Activities; Comment Request; Study of Education is especially interested in access to alternative scholarship Financial Aid Supports for GEAR UP public comment addressing the funds—such as those that are state- Students following issues: (1) Is this collection funded. The reauthorization also necessary to the proper functions of the changed other aspects of the scholarship AGENCY: Institute for Education Sciences Department; (2) will this information be component, such as the minimum (IES), Department of Education (ED). processed and used in a timely manner; amount and which students must be ACTION: Notice. (3) is the estimate of burden accurate; eligible to receive this financial aid. (4) how might the Department enhance SUMMARY: In accordance with the The data collection for this study will the quality, utility, and clarity of the Paperwork Reduction Act of 1995, ED is examine the scholarship practices of all information to be collected; and (5) how proposing a new information collection. states that received a GEAR UP grant might the Department minimize the DATES: Interested persons are invited to burden of this collection on the since fiscal year 2011, the first year the submit comments on or before respondents, including through the use scholarship changes went into effect. ED November 2, 2020. of information technology. Please note plans to use the study results to inform ADDRESSES: To access and review all the that written comments received in program improvement, both current documents related to the information response to this notice will be efforts and in the future through the collection listed in this notice, please considered public records. upcoming reauthorization of the HEA. use http://www.regulations.gov by Title of Collection: Study of Financial searching the Docket ID number ED– Aid Supports for GEAR UP Students. 2020–SCC–0143. Comments submitted OMB Control Number: 1850–NEW.
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Dated: August 28, 2020. Æ Report from Committee Chairs elements of the 2008 LANL SWEIS Stephanie Valentine, Æ Report from Nominating Committee Expanded Operations Alternative PRA Coordinator, Strategic Collections and • New Business needed to produce a minimum of 30 Clearance Governance and Strategy Division, Æ Election of Officers for Fiscal Year war reserve pits per year during 2026 for Office of Chief Data Officer, Office of 2021 the national pit production mission and Planning, Evaluation and Policy Æ Other Items to implement surge efforts to exceed 30 Development. • Update from EM Los Alamos Field pits per year to meet Nuclear Posture [FR Doc. 2020–19422 Filed 9–1–20; 8:45 am] Office Review (NPR) and national policy. • BILLING CODE 4000–01–P Update from New Mexico NNSA has previously evaluated this Environment Department action at the programmatic level in the • Update on DP Road Complex Transformation SPEIS and at • DEPARTMENT OF ENERGY Public Comment Period • the site-specific level in the LANL Wrap-Up and Comments from Sitewide Environmental Impact Environmental Management Site- NNMCAB Members • Statement (SWEIS), and recently Specific Advisory Board, Northern New Adjourn completed a review of those prior Mexico Public Participation: The online analyses in a separate Supplement virtual meeting is open to the public. Analysis (SA) for each document. AGENCY: Office of Environmental Written statements may be filed with Management, Department of Energy. the Board either before or after the FOR FURTHER INFORMATION CONTACT: For ACTION: Notice of open virtual meeting. meeting by sending them to Menice further information on this Amended Santistevan at the aforementioned email ROD or the 2020 LANL SA, contact: SUMMARY: This notice announces an address. The Deputy Designated Federal Kristen Dors, NEPA Compliance online virtual meeting of the Officer is empowered to conduct the Manager, U.S. Department of Energy, Environmental Management Site- conference call in a fashion that will National Nuclear Security Specific Advisory Board (EM SSAB), facilitate the orderly conduct of Administration, Los Alamos Field Northern New Mexico. The Federal business. Individuals wishing to make Office, 3747 W. Jemez Road, Los Advisory Committee Act requires that public comments will be provided a Alamos, NM 87544; phone: (505) 667– public notice of this conference call be maximum of five minutes to present 5491; or via email at lanlsweissa@ announced in the Federal Register. their comments. nnsa.doe.gov. This Amended ROD, the DATES: Wednesday, September 23, 2020; Minutes: Minutes will be available by 2020 LANL SA, and related NEPA 1:00 p.m.—4:00 p.m. writing or calling Menice Santistevan at documents are available at https:// ADDRESSES: This meeting will be held the address or telephone number listed www.energy.gov/nnsa/nnsa-nepa- virtually via Webex. To attend, please above. Minutes and other Board reading-room. contact Menice Santistevan by email, documents are on the internet at: SUPPLEMENTARY INFORMATION: [email protected], no https://www.energy.gov/em/nnmcab/ Background later than 5:00 p.m. MDT on Thursday, meeting-materials. Pit production, at a level of 80 pits per September 17, 2020. Signed in Washington, DC on August 28, To Sign Up For Public Comment: year at LANL, has been analyzed in two 2020. programmatic environmental impact Please contact Menice Santistevan by LaTanya Butler, email, [email protected], statements (EISs) and two LANL site- Deputy Committee Management Officer. no later than 5:00 p.m. MDT on wide EISs, including the 1999 Site-Wide Thursday, September 17, 2020. [FR Doc. 2020–19354 Filed 9–1–20; 8:45 am] Environmental Impact Statement for the BILLING CODE 6450–01–P FOR FURTHER INFORMATION CONTACT: Continued Operation of the Los Alamos Menice Santistevan, Northern New National Laboratory (1999 LANL SWEIS) (DOE/EIS–0238), and the 2008 Mexico Citizens’ Advisory Board DEPARTMENT OF ENERGY (NNMCAB), 94 Cities of Gold Road, Final Site-Wide Environmental Impact Statement for Continued Operation of Santa Fe, NM 87506. Phone (505) 995– Amended Record of Decision for the Los Alamos National Laboratory (2008 0393; Fax (505) 989–1752 or Email: Site-Wide Environmental Impact LANL SWEIS) (DOE/EIS–0380). As [email protected]. Statement for the Continued Operation national policy and national defense SUPPLEMENTARY INFORMATION: of Los Alamos National Laboratory, needs have evolved, NNSA prepared a Purpose of the Board: The purpose of Los Alamos, NM supplement analysis (SA) to the 2008 the Board is to make recommendations LANL SWEIS (2020 LANL SA) (DOE/ to DOE–EM and site management in the AGENCY: National Nuclear Security EIS–380–SA–06). The 2020 LANL SA areas of environmental restoration, Administration, Department of Energy. re-evaluates the potential environmental waste management, and related ACTION: Amended record of decision. impacts of producing a minimum of 30 activities. SUMMARY: The National Nuclear pits per year at LANL and of Tentative Agenda Security Administration (NNSA), a implementing surge efforts to exceed 30 • Call to Order semi-autonomous agency within the pits per year to determine if there have • Welcome and Introductions U.S. Department of Energy (DOE), is been substantial changes to NNSA’s • Roll Call announcing this amendment to the proposed implementation of increased • Approval of Agenda September 26, 2008 Record of Decision pit production or significant new • Approval of July 22, 2020 Conference (ROD) for the Site-Wide Environmental circumstances or information relevant to Call Minutes Impact Statement (SWEIS) for the environmental concerns, within the • Update from NNMCAB Deputy Continued Operation of Los Alamos meaning of the National Environmental Designated Federal Officer National Laboratory (LANL), Los Policy Act (NEPA). After preparing and • Old Business Alamos, NM (2008 LANL SWEIS ROD). considering the 2020 LANL SA, NNSA Æ Report from NNMCAB Chair and In this Amended ROD, NNSA has determined that no further NEPA Vice Chair announces its decision to implement analysis is needed prior to issuing this
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Amended ROD. NNSA has a statutory Expanded Operations Alternative, specific facility that NNSA previously mission to maintain and enhance the NNSA analyzed existing space at LANL analyzed, the Chemistry and Metallurgy safety, reliability, and performance of in the Plutonium Facility and other Research Replacement Nuclear Facility the U.S. nuclear weapons stockpile infrastructure to support production of (CMRR–NF), was not constructed at including the ability to design, produce, up to 80 pits per year. In the 2008 LANL LANL. The CMRR–NF was a planned and test, in order to meet national SWEIS ROD and subsequent RODs, support facility for pit production and security requirements. The purpose and NNSA selected a No Action Alternative was not itself to be a pit production need for the continued operation of (continuation of existing operations) facility. Many support operations for pit LANL is to provide support for NNSA’s with some elements of an Expanded production have been historically core missions as directed by Congress Operations Alternative, which located in the Chemistry and Metallurgy and the President (2008 LANL SWEIS). maintained NNSA’s decision for pit Research (CMR) Facility, and CMRR–NF Congress and the President have production levels of 20 pits per year at had been thought necessary to replace directed that during 2026 LANL will LANL (73 FR 55833 September 26, CMR. The support operations housed in produce a minimum of 30 war reserve 2008; 74 FR 33232 July 10, 2009; and 76 CMR have been or can be relocated to pits per year for the national pit FR 40352 July 8, 2011). other facilities at LANL, and a new production mission and implement Both federal law and national security CMRR–NF is no longer required to meet surge efforts to exceed 30 pits per year policy now require pit production rates current mission needs. NNSA remains to meet NPR and national policy (50 of a minimum of 30 pits per year at committed to the closure of the CMR U.S.C. 2538a; Pub. L. 115–232, Section LANL during 2026, and not less than 80 Facility and has made upgrades to 3120). To meet this direction, NNSA pits per year nationally during 2030 (50 existing plutonium facilities, must now implement previously U.S.C. 2538a; Pub. L. 115–232). Because constructed new support facilities, and analyzed elements of the Expanded operations involving SNM are complex, made administrative changes that have Operations Alternative from the 2008 implementing changes in operations leveraged the use of existing LANL LANL SWEIS. such as pit production take several facilities. The environmental impacts of pit years. To these ends, NNSA is issuing Another change since issuance of the production at LANL have been analyzed an Amended ROD to the Complex SWEIS RODs is that NNSA has made at a both programmatic and site-specific Transformation SPEIS announcing its substantial facility upgrades to address level several times. The first programmatic decision to implement previous technical and seismic concerns programmatic EIS in the post-Cold War elements of a Modified Distributed related to LANL’s pit production era was the 1996 Programmatic Centers of Excellence (DCE) Alternative facility, the Plutonium Facility. In the Environmental Impact Statement for whereby LANL will produce a 2009 Amended ROD to the 2008 LANL Stockpile Stewardship and Management minimum of 30 war reserve pits per year SWEIS, NNSA issued a decision on (SSM PEIS) (DOE/EIS–0236). The SSM for the national pit production mission certain elements of an Expanded PEIS evaluates pit production of 80 pits during 2026 and implement surge Operations Alternative at LANL that per year at LANL. In December 1996, efforts to exceed 30 pits per year as authorized upgrades to the Plutonium NNSA issued a ROD announcing a needed. Prior to issuing that Amended Facility. Over the past ten years, NNSA decision setting pit production at LANL ROD, NNSA prepared an SA of the has been implementing these upgrade at 20 pits per year (61 FR 68014; Complex Transformation SPEIS to projects. Separately, there was a three- December 26, 1996). Tiering from the determine if the existing Complex year operational pause in LANL’s SSM PEIS, the site-specific 1999 LANL Transformation SPEIS should be Plutonium Facility but operations have SWEIS also evaluates pit production supplemented, a new EIS should be resumed. The Plutonium Facility is levels of 80 pits per year at LANL. In the prepared, or that no further NEPA again operational and pit production 1999 LANL ROD, NNSA confirmed its analysis would be required. Based on activities have resumed. The NNSA pit decision for pit production at LANL at the analysis presented in the 2019 production mission at LANL is 20 pits per year (64 FR 50797; Sept 20, SPEIS SA, NNSA determined that no operating below the level of 20 pits per 1999). further NEPA analysis was needed at a year that was identified in previous In 2008, NNSA prepared the Complex programmatic level. NNSA decisions. Transformation Supplemental NNSA is now issuing an Amended The United States has emphasized the Programmatic Environmental Impact ROD to the 2008 LANL SWEIS. Prior to need to eventually produce 80 pits per Statement—Operations Involving issuing this Amended ROD, NNSA year and while the drivers and the Plutonium, Uranium, and the Assembly prepared the 2020 LANL SA to requirement for pit production have and Disassembly of Nuclear Weapons determine if the existing 2008 LANL remained relatively unchanged there (Complex Transformation SPEIS) (DOE/ SWEIS should be supplemented, a new have been specific changes in the law EIS–0236–S4). The Complex EIS should be prepared, or that no and national policy regarding pit Transformation SPEIS evaluates, among further NEPA analysis would be production since issuance of the 2008 other things, alternatives for producing required. Based on the analysis LANL SWEIS. Since 2014, federal law 10–200 pits per year at different site presented in the 2020 SA, NNSA has required the nuclear security alternatives, including LANL. In the determined that no further NEPA enterprise to produce not less than 30 2008 Programmatic ROD, NNSA did not analysis was needed prior to issuing this war reserve plutonium pits during 2026. make any new decisions related to pit Amended ROD. Federal law now requires that the production capacity beyond 20 pits per nuclear security enterprise produce not year at LANL (73 FR 77644 December Changes Since Issuance of the 2008 less than 80 war reserve plutonium pits 19, 2008). Tiering from the Complex LANL SWEIS RODs during 2030 (50 U.S.C. 2538a). Transformation SPEIS, the 2008 LANL NNSA has not implemented all In addition, on January 27, 2017, the SWEIS analyzed three alternatives: A aspects of the 2008 LANL SWEIS President directed the Department of Reduced Operations Alternative, a No Expanded Operations Alternative that Defense (DoD) to conduct an NPR which Action Alternative (20 pits per year), were anticipated for producing more was issued in 2018. The 2018 NPR and an Expanded Operations than 20 pits per year. One primary echoed the need for pit production and Alternative (80 pits per year). Under the element that has changed is that a articulated a national policy that is
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consistent with Congressional and 2017 to programs, projects, and 2008 LANL SWEIS, more than 100 Presidential direction, stating that the operations and it considered changes speakers made oral comments and United States will pursue initiatives to from 2018 through 2022 to new/ nearly 2100 public comment documents ensure the necessary capability, modified plans, projects, and were received. NNSA reviewed and capacity, and responsiveness of the operations. The 2018 LANL SWEIS SA considered all comments received on nuclear weapons infrastructure and the compared the projected environmental the Draft 2008 LANL SWEIS, including needed skill of the workforce, including impacts of ongoing operations, new/ those received after the comment period providing the enduring capability and modified projects, and site operation ended, before finalizing the 2008 LANL capacity to produce plutonium pits at a modifications from 2018 through 2022 SWEIS and issuing associated RODs. rate of no fewer than 80 pits per year to the environmental impacts that were On June 28, 2019, NNSA provided a during 2030. The 2018 NPR also details analyzed in the 2008 LANL SWEIS. The Notice of Availability of the Draft the evolving and uncertain nuclear key areas considered include: Land Supplement Analysis of the Complex threat environment facing the United resources; visual environment; geology Transformation Supplemental States. Concurrent with the 2018 NPR, and soils; water resources; air quality; Programmatic Environmental Impact DOE conducted an Analysis of noise; ecological resources; human Statement (Draft Complex Alternatives (AoA) to identify and health and worker health/safety; Transformation SPEIS SA) (84 FR assess alternatives across DOE sites that cultural resources; socioeconomics; 31055) and invited public comment. could deliver the infrastructure to meet infrastructure; waste management; NNSA prepared the Final Complex the sustained plutonium pit traffic and transportation; Transformation SPEIS SA to determine requirements of 80 pits per year. To environmental justice; environmental whether, prior to implementing a achieve the required annual pit remediation; facility accidents; climate Modified DCE Alternative for plutonium production rate, the AoA report trends and greenhouse gases; forest operations to enable producing considered the construction of new health and wildland fire preparedness; plutonium pits at a rate of no fewer than facilities and the refurbishment of and mitigations. Based on the 2018 80 pits per year by 2030, the existing existing facilities and identifies SRS and LANL SWEIS SA, NNSA determined Complex Transformation SPEIS should LANL as the two preferred alternatives ongoing operations, new/modified be supplemented, a new environmental to meet pit production requirements. projects, and site operation impact statement be prepared, or that no In 2018, Congress and the President modifications do not constitute a further NEPA analysis was required. On also directed that LANL will produce a substantial change in the actions January 9, 2020, after considering all minimum of 30 pits per year for the previously analyzed in the 2008 LANL comments and modifying the draft national pit production mission and SWEIS, and that there are no significant Complex Transformation SPEIS SA as directed it be capable of surge efforts to new circumstances or information appropriate, NNSA provided a Notice of exceed 30 pits per year to meet NPR and relevant to environmental concerns, and Availability of the Final Complex national policy (Pub. L. 115–232, that no further NEPA documentation Transformation Supplemental Section 3120). To these ends, the DoD was required for the continued Programmatic Environmental Impact Under Secretary of Defense for operation of LANL. Statement (Final Complex Acquisition and Sustainment and the Transformation SPEIS SA) (DOE/EIS– NNSA Administrator issued a Joint NEPA Process for Amending the ROD 0236–SA–02) (85 FR 887). The Final Statement on May 10, 2018, describing NNSA prepared this Amended ROD Complex Transformation SPEIS SA NNSA’s recommended alternative to to the 2008 LANL SWEIS pursuant to included NNSA’s determination that no pursue a two-prong approach—50 pits the regulations of the Council on further NEPA documentation at a per year produced at SRS and a Environmental Quality (CEQ) for programmatic level was required, but minimum of 30 pits per year produced implementing NEPA (40 CFR parts affirmed NNSA’s decision to prepare at LANL. In addition to improving the 1500–1508) and DOE’s NEPA site-specific documentation for the resiliency, flexibility, and redundancy implementing procedures (10 CFR part proposal to authorize expanding pit of our Nuclear Security Enterprise by 1021). This Amended ROD is based on production beyond 20 pits per year at reducing reliance on a single production federal law and NNSA’s mission, LANL. Concurrent with this Amended site, this approach enables the information and analysis in the 1999 ROD, NNSA is issuing an Amended capability to allow for enhanced LANL SWEIS (DOE/EIS–0238) and ROD to the Complex Transformation warhead safety and security to meet public comments received; the 2008 SPEIS, announcing the programmatic DoD and NNSA requirements; LANL SWEIS (DOE/EIS–0380) and decision to implement elements of a deliberate, methodical replacement of public comments received; the Complex Modified DCE Alternative that older existing plutonium pits with Transformation SPEIS (DOE/EIS–0236– authorizes LANL to produce not fewer newly manufactured pits as risk S4) and public comments received; the than 30 war reserve pits per year during mitigation against plutonium aging; and 2019 SPEIS SA (DOE/EIS–0236–SA–02) 2026 for the national pit production response to changes in deterrent and public comments received; the 2020 mission and implement surge efforts to requirements driven by renewed great LANL SA (DOE/EIS–0380–SA–06) and exceed 30 pits per year as needed. power competition. public comments received; other NEPA At the site-specific level, NNSA Before the recent Congressional and analysis and public comments as noted prepared the 2020 LANL SA (DOE/EIS– Presidential direction concerning in the 2020 LANL SA. 0380–SA–06) to re-evaluate site-specific specific pit production requirements at The Draft 2008 LANL SWEIS environmental impacts. In March 2020, LANL, NNSA prepared the 2018 included a robust public participation NNSA posted the Draft Supplement Supplement Analysis of the 2008 Site- process. NNSA received comments from Analysis of the 2008 Site-Wide Wide Environmental Impact Statement Federal agencies; state, local, and tribal Environmental Impact Statement for for the Continued Operation of Los governments; public and private Continued Operations of Los Alamos Alamos National Laboratory (2018 organizations; and individuals. In National Laboratory to the online NNSA LANL SWEIS SA) (DOE/EIS–0380–SA– addition, during the three public NEPA Reading Room and noticed 04). The 2018 LANL SWEIS SA meetings that NNSA held, in Santa Fe, interested parties via GovDelivery, considered changes from 2008 through Espan˜ ola and Los Alamos, on the Draft inviting public comment for a 45-day
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period which was extended for an land use, visual resources, geology and while allowing LANL to continue to additional 15 days. Although pertinent soils, water resources, air quality, noise, fulfill its national security missions. regulations do not require public review ecological resources, cultural resources, Increasing operational levels and and comment on an SA, NNSA decided infrastructure, facility accidents, performing various demolition activities to invite public comment in the SA to intentional destructive acts, human would use additional resources and ensure fully informed decision-making. health, socioeconomics, environmental generate additional waste, but under the NNSA received approximately 140 justice, waste management, and Expanded Operations Alternative NNSA comment documents on the Draft 2020 transportation. Table 3–1 of the 2020 would also undertake actions to LANL SA. Many comments received on LANL SA presents information in a modernize and replace older facilities the Draft 2020 LANL SA were similar in comparative fashion for resource areas with more energy efficient and nature to the comments NNSA received considered to have minor or negligible environmentally-protective facilities on the Draft 2019 Complex impacts. Environmental resource areas and implement waste control and Transformation SPEIS SA. In addition to that may have environmental impacts environmental practices to minimize Draft 2020 LANL SA comments, NNSA related to pit production beyond 20 pits impacts. reviewed all comment documents per year or require additional analysis Amended Decision received during the public scoping or to address public concerns were process for the site-specific Savanah reviewed in more detail in Section 3.3 NNSA has decided to implement River Site (SRS) pit production EIS for of the 2020 LANL SA and Section 4.0 elements of the Expanded Operations relevance to the 2020 LANL SA. analyzed the cumulative impacts. Alternative in the 2008 LANL SWEIS, as Comments received generally NNSA’s conclusion based on the 2020 needed, to produce a minimum of 30 centered on the following topic areas: LANL SA was that the potential war reserve pits per year during 2026 for (1) Validity of the Draft 2020 LANL SA environmental impacts of the proposed the national pit production mission and determination; (2) the purpose and need action would not be different, or would to implement surge efforts to exceed 30 for NNSA’s project; (3) NEPA process/ not be significantly different, than pits per year up to the analyzed limit to requests for an extension to the impacts in existing NEPA analyses. meet NPR and national policy. NNSA comment period; (4) the two-prong NNSA has determined that pit will implement the following actions: approach to pit production; (5) new production at LANL as planned (1) Remove legacy equipment and information or changed circumstances (previously analyzed limits), and that install new equipment; (2) hire and train related to NNSA operations and/or meets NPR and national policy, does not approximately 400 additional staff; (3) environmental conditions; (6) questions constitute a substantial change from upgrade existing support facilities and about the technical aspects of the actions analyzed previously and that construct new support facilities; (4) impact analyses; (7) general opposition while there are new circumstances or repackage and dispose of mixed-oxide to, or support for the proposal; and (8) information relevant to environmental fuel fabrication facility fuel rods; (5) comments about nuclear weapon concerns these new circumstances and implement Replacement Office policies or new weapon designs. information do not rise to a level of Buildings Project; (6) implement After considering all comments and significance within the meaning of elements of the Security-Driven Traffic modifying the Draft 2020 LANL SA as NEPA. As a result, NNSA has Modifications Project; (7) management appropriate, NNSA completed the Final determined that preparation of a and disposition of additional wastes Supplement Analysis of the 2008 Site- supplemental or new EIS is not generated; and (8) transport additional Wide Environmental Impact Statement warranted at this time. materials, parts, and waste. for Continued Operations of Los Alamos National Laboratory (Final 2020 LANL Environmentally Preferable Alternative Basis for Decision SA). NNSA prepared the Final 2020 The analyses in the 2008 LANL In making these decisions, NNSA LANL SA to determine whether, prior to SWEIS of the environmental impacts considered the 2020 LANL SA, the 2008 implementing additional elements of associated with operating LANL LANL SWEIS, the 2008 Complex the Expanded Operations Alternative for identified only minor differences among Transformation SPEIS, the 2019 producing a minimum of 30 pits per the three alternatives across natural and Complex Transformation SPEIS SA, and year at LANL and implementing surge cultural resource areas. Within each of other referenced NEPA analyses, and its efforts to exceed 30 pits per year, the the alternatives there are actions that statutory responsibilities to support the 2008 LANL SWEIS should be could result in negative impacts, as well nuclear weapons stockpile. Federal law supplemented, a new environmental as those that would produce positive and national security policies continue impact statement be prepared, or that no environmental effects. Considering the to require NNSA to maintain a safe, further NEPA analysis was required. many environmental facets of the secure, and reliable nuclear weapons The Final 2020 LANL SA included alternatives analyzed in the SWEIS, and stockpile and to create a responsive NNSA’s determination that no further looking out over the long term, the nuclear weapons infrastructure that are NEPA documentation was required Expanded Operations Alternative is still cost-effective and have adequate before issuing an Amended ROD. the environmentally preferred capacity to meet reasonably foreseeable alternative because that is the national security requirements. This Summary of Impacts alternative that includes projects that Amended ROD will enable NNSA to NNSA has been directed by Congress support environmental remediation at continue meeting federal law and and the President to implement pit LANL. Facilitating the cleanup of the national security requirements. production at LANL to meet NPR and site with new or expanded waste national policy, and NNSA determined management facilities, and replacing Mitigation Measures in its discretion to prepare an SA of the older laboratory and production As described in the 2008 LANL 2008 LANL SWEIS to re-evaluate facilities with new buildings that SWEIS (DOE/EIS–0380) and the 2008 adopting the Expanded Operations incorporate modern safety, security, and LANL SWEIS ROD (74 FR 55833), LANL Alternative as needed. The 2020 LANL efficiency standards, would also operates in compliance with SA analyzed the potential impacts of pit improve LANL’s ability to protect environmental laws, regulations, and production beyond 20 pits per year on human health and the environment policies within a framework of
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contractual requirements; many of these from DOE to fill a rated order issued in technology. This data will also be used requirements mandate actions to control accordance with the Defense Production to conduct audits and for enforcement and mitigate potential adverse Act (DPA) and DOE’s implementing purposes. This collection will only be environmental effects. Examples of regulations. DOE published a Federal used if the Secretary of Energy mitigation measures include site Register notice on May 4, 2020 determines that his authority under the security and threat protection plans, soliciting 60 days of public comment. DPA is necessary to prevent or address emergency plans, land use plans, DOE received one comment on that an energy shortage or energy reliability Integrated Safety Management Systems, notice. concern. The last collection by DOE an Environmental Management System, DATES: Comments regarding this under this authority was in 2001; (5) pollution prevention and waste collection must be received on or before Annual Estimated Number of minimization programs, cultural October 2, 2020. If you anticipate that Respondents: 10, as this collection is resource and protected species you will be submitting comments, but addressed to a substantial majority of management plans, and energy and find it difficult to do so within the the energy industry; (6) Annual water conservation programs. NNSA period of time allowed by this notice, Estimated Number of Burden Hours: 32 will continue to implement the please advise the OMB Desk Officer of minutes per response; (8) Annual mitigation measures identified in the your intention to make a submission as Estimated Reporting and Recordkeeping 2008 LANL SWEIS ROD. soon as possible. The Desk Officer may Cost Burden: $381.57. be telephoned at 202–395–4718. One comment was received on DOE’s Signing Authority sixty-day notice (Kubitz, No 1). The ADDRESSES: Written comments and This document of the Department of commenter requested that companies recommendations for the proposed Energy was signed on August 24, 2020, provide information about current information collection should be sent production of oil, maximum available by Lisa E. Gordon-Hagerty, Under within 30 days of publication of this oil production, and costs of incremental Secretary for Nuclear Security and notice to www.reginfo.gov/public/do/ energy production, in order to Administrator, NNSA, pursuant to PRAMain. Find this particular information Defense Production Act delegated authority from the Secretary information collection by selecting decisions or orders. Id. The commenter of Energy. That document with the ‘‘Currently under 30-day Review—Open stated that knowing the capacity of the original signature and date is for Public Comments’’ or by using the industry as a whole by aggregating maintained by DOE. For administrative search function. purposes only, and in compliance with potential production from various FOR FURTHER INFORMATION CONTACT: requirements of the Office of the Federal companies would aid in allocation and Requests for additional information or Register, the undersigned DOE Federal prioritization of any necessary energy copies of the information collection Register Liaison Officer has been production under the Defense instrument and instructions should be authorized to sign and submit the Production Act. Id. This information is directed to Christopher A. Lawrence, document in electronic format for already being collected by the Energy U.S. Department of Energy, at publication, as an official document of Information Administration within DOE [email protected] or to track the nation’s petroleum supply. the Department of Energy. This 202–586–5260. administrative process in no way alters EIA surveys collect data on petroleum SUPPLEMENTARY INFORMATION: the legal effect of this document upon This refinery operations, blending, biofuels information collection request contains: publication in the Federal Register. production, natural gas liquids (1) OMB No.: 1910–5159; (2) production, inventory levels, imports, Signed in Washington, DC on August 28, Information Collection Request Title: inter-regional movements, and storage 2020. Energy Priorities and Allocations capacity for crude oil, petroleum, Treena V. Garrett, System; (3) Type of Request: Extension; products, and biofuels. Information Federal Register Liaison Officer, U.S. (4) Purpose: To meet requirements of regarding EIA’s work on petroleum Department of Energy. the Defense Production Act (DPA) supply can be found at https:// [FR Doc. 2020–19349 Filed 9–1–20; 8:45 am] priorities and allocations authority www.eia.gov/petroleum/. DOE can BILLING CODE 6450–01–P necessary or appropriate to promote the review the information provided to EIA national defense. Data supplied will be through its surveys to evaluate used to evaluate applicants requesting applicants submitting Form DOE F 544. DEPARTMENT OF ENERGY special priorities assistance to fill a Therefore, to avoid duplication, DOE rated order issued in accordance with will not be revising Form DOE F 544. Agency Information Collection the DPA and DOE’s implementing Extension Statutory Authority: Defense Production regulations. Comments are invited on: Act of 1950 as amended (50 U.S.C. 4501, et AGENCY: U.S. Department of Energy. (a) Whether the proposed collection of seq.); Executive Order 13603. information is necessary for the proper ACTION: Submission for Office of Signing Authority Management and Budget (OMB) review; performance of the functions of the comment request. agency, including whether the This document of the Department of information shall have practical utility; Energy was signed on August 27, 2020, SUMMARY: The Department of Energy (b) the accuracy of the agency’s estimate by Bruce J. Walker, Assistant Secretary, (DOE) has submitted an information of the burden of the proposed collection Office of Electricity, pursuant to collection request to the OMB for of information, including the validity of delegated authority from the Secretary extension under the provisions of the the methodology and assumptions used; of Energy. That document with the Paperwork Reduction Act of 1995. The (c) ways to enhance the quality, utility, original signature and date is information collection requests a three- and clarity of the information to be maintained by DOE. For administrative year extension of its Energy Priorities collected; and (d) ways to minimize the purposes only, and in compliance with and Allocations System, OMB Control burden of the collection of information requirements of the Office of the Federal Number 1910–5159. The proposed on respondents, including through the Register, the undersigned DOE Federal collection will be used to allow persons use of automated collection techniques Register Liaison Officer has been to request special priorities assistance or other forms of information authorized to sign and submit the
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document in electronic format for —Opening and Chair Update To Submit Public Comments: Public publication, as an official document of —Agency Updates comments will be accepted via email the Department of Energy. This —Break prior to and after the meeting. administrative process in no way alters —Committee Round Robin: Comments received by no later than the legal effect of this document upon Æ Facilities Disposition & Site 4:00 p.m. PST on Monday, September publication in the Federal Register. Remediation Committee 21, 2020 will be read aloud during the Æ Signed in Washington, DC, on August 27, Nuclear Materials Committee virtual meeting. Comments will also be Æ 2020. Strategic & Legacy Management accepted after the meeting, by no later Treena V. Garrett, Committee Æ than 4:00 p.m. PST on Friday, October Federal Register Liaison Officer, U.S. Waste Management Committee 9, 2020. Please submit comments to Æ Administrative & Outreach Department of Energy. [email protected]. [FR Doc. 2020–19321 Filed 9–1–20; 8:45 am] Committee —Break FOR FURTHER INFORMATION CONTACT: BILLING CODE 6450–01–P —Draft Recommendation Discussion Barbara Ulmer, Board Administrator, by —Reading of Public Comments Phone: (702) 523–0894 or Email: nssab@ DEPARTMENT OF ENERGY —Voting on Draft Recommendation emcbc.doe.gov. —Adjourn SUPPLEMENTARY INFORMATION: Environmental Management Site- Public Participation: The online Specific Advisory Board, Savannah virtual meeting is open to the public. Purpose of the Board: The purpose of River Site Written statements may be filed with the Board is to make recommendations to DOE–EM and site management in the AGENCY: Office of Environmental the Board either before or after the Management, Department of Energy. meeting as there will not be areas of environmental restoration, opportunities for live public comment waste management, and related ACTION: Notice of open virtual meeting. during this online virtual meeting. The activities. SUMMARY: This notice announces an Deputy Designated Federal Officer is Tentative Agenda online virtual meeting of the empowered to conduct the meeting in a Environmental Management Site- fashion that will facilitate the orderly 1. Fiscal Year 2021 Work Plan Specific Advisory Board (EM SSAB), conduct of business. Individuals Development Savannah River Site. The Federal wishing to submit public comments Advisory Committee Act requires that should email them as directed above. 2. Election of Officers public notice of this online virtual Minutes: Minutes will be available by 3. Recommendation Development for meeting be announced in the Federal writing or calling Amy Boyette at the Engine Maintenance Assembly and Register. address or telephone number listed Disassembly Path Forward—Work DATES: Monday, September 21, 2020; above. Minutes will also be available at Plan Item #6 1:00 p.m.–4:00 p.m. the following website: https:// cab.srs.gov/srs-cab.html. Public Participation: The online ADDRESSES: Online Virtual Meeting. To virtual meeting is open to the public. attend, please send an email to: Signed in Washington, DC on August 28, Written statements may be filed with 2020. [email protected] by the Board either before or after the LaTanya Butler, no later than 4:00 p.m. EDT on Friday, meeting as there will not be September 18, 2020. Deputy Committee Management Officer. opportunities for live public comment To Submit Public Comments: Public [FR Doc. 2020–19353 Filed 9–1–20; 8:45 am] during this online virtual meeting. The comments will be accepted via email BILLING CODE 6450–01–P prior to and after the meeting. Deputy Designated Federal Officer is Comments received by no later than empowered to conduct the meeting in a 4:00 p.m. EDT on Friday, September 18, DEPARTMENT OF ENERGY fashion that will facilitate the orderly 2020 will be read aloud during the conduct of business. Individuals virtual meeting. Comments will also be Environmental Management Site- wishing to submit public comments accepted after the meeting, by no later Specific Advisory Board, Nevada should email them as directed above. than 4:00 p.m. EDT on Monday, AGENCY: Minutes: Minutes will be available by September 28, 2020. Please submit Office of Environmental Management, Department of Energy. writing or calling Barbara Ulmer, comments to srscitizensadvisoryboard@ NSSAB Administrator, U.S. Department ACTION: Notice of open virtual meeting. gmail.com. of Energy, EM Nevada Program, 100 FOR FURTHER INFORMATION: Amy Boyette, SUMMARY: This notice announces an North City Parkway, Suite 1750, Las Office of External Affairs, U.S. online virtual meeting of the Vegas, NV 89106; Phone: (702) 523– Department of Energy, Savannah River Environmental Management Site- 0894. Minutes will also be available at Operations Office, P.O. Box A, Aiken, Specific Advisory Board (EM SSAB), the following website: http:// SC, 29802; Phone: (803) 952–6120; Nevada. The Federal Advisory www.nnss.gov/NSSAB/pages/MM_ email: [email protected]. Committee Act requires that public FY20.html. SUPPLEMENTARY INFORMATION: notice of this online virtual meeting be Signed in Washington, DC on August 28, Purpose of the Board: The purpose of announced in the Federal Register. the Board is to make recommendations 2020. DATES: to DOE–EM and site management in the Wednesday, September 23, 2020; LaTanya Butler, 4:00 p.m.–7:00 p.m. areas of environmental restoration, Deputy Committee Management Officer. ADDRESSES: Online Virtual Meeting. To waste management, and related [FR Doc. 2020–19352 Filed 9–1–20; 8:45 am] activities. attend, please send an email to: nssab@ emcbc.doe.gov by no later than 4:00 BILLING CODE 6450–01–P Tentative Agenda p.m. PST on Monday, September 21, —Meeting Rules and Agenda Review 2020.
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DEPARTMENT OF ENERGY Background years. NNSA is issuing this Amended As national policy and national ROD on those aspects of the national pit National Nuclear Security defense needs have evolved, NNSA production mission at LANL that have Administration prepared an SA to the Complex been analyzed at both the programmatic Transformation SPEIS (2019 SPEIS SA) and site-specific level by final Amended Record of Decision for the environmental impact statements. Complex Transformation Supplemental (DOE/EIS–0236–SA–02). The 2019 SPEIS SA evaluates whether since NNSA may issue additional Amended Programmatic Environmental Impact RODs, as appropriate, on other aspects Statement issuing the Complex Transformation SPEIS there have been substantial of the national pit production mission AGENCY: National Nuclear Security changes to NNSA’s proposed upon completion of further site-specific Administration, Department of Energy. implementation of expanded pit analysis at SRS. Prior to issuing this Amended ROD, NNSA prepared the ACTION: Amended record of decision. production in the U.S. or significant 2019 SPEIS SA to determine if the new circumstances or information existing Complex Transformation SPEIS SUMMARY: The National Nuclear relevant to environmental concerns, should be supplemented, a new EIS Security Administration (NNSA), a within the meaning of the National should be prepared, or that no further semi-autonomous agency within the Environmental Policy Act (NEPA). NEPA analysis would be required. U.S. Department of Energy (DOE), is NNSA has re-evaluated the single-site Based on the analysis presented in the announcing this amendment to the pit production strategy announced in 2019 SPEIS SA, NNSA determined that December 19, 2008, Record of Decision the 2008 Programmatic ROD but will no further NEPA analysis was needed (ROD) for the Complex Transformation not announce any further decisions on prior to issuing this Amended ROD. The Supplemental Programmatic pit production until completion of a Environmental Impact Statement— scope of this Amended ROD is limited site-specific Environmental Impact to plutonium operations related to pit Operations Involving Plutonium, Statement (EIS) for pit production at the Uranium, and the Assembly and production to sustain NNSA’s pit Savannah River Site (SRS). production capability and fulfill Disassembly of Nuclear Weapons NNSA has a statutory mission to NNSA’s requirements under federal law (Complex Transformation SPEIS—2008 maintain and enhance the safety, and national policy. All other activities Programmatic ROD). In this Amended reliability, and performance of the U.S. conducted pursuant to decisions ROD, NNSA announces its nuclear weapons stockpile, including announced in the 2008 Programmatic programmatic decision to implement the ability to design, produce, and test, elements of a Modified Distributed ROD are outside the scope of this in order to meet national security decision. Centers of Excellence (DCE) Alternative requirements. In the Complex whereby Los Alamos National Transformation SPEIS, NNSA Synopsis of the Programmatic EIS and Laboratory (LANL) will produce a considered how to configure facilities the Supplemental Programmatic EIS minimum of 30 war reserve pits per year that hold Category I and Category II Related to Plutonium Operations and for the national pit production mission quantities of Special Nuclear Material the Associated Records of Decision during 2026 and implement surge (SNM) across the nuclear weapons During the Cold War, the U.S. efforts to exceed 30 pits per year as complex (Complex), including the three maintained a pit production capacity of needed. NNSA will implement this functional areas of plutonium, uranium approximately 2,000 pits per year decision without construction of the operations, and assembly/disassembly/ (actual production numbers are Chemistry and Metallurgy Research and high explosives in various ways. These classified) but lost this large-scale Replacement Nuclear Facility (CMRR– alternatives were broadly categorized production capability in the late 1980s. NF). NNSA has previously evaluated into a Distributed Centers of Excellence In 1996, the environmental effects of a this action at the programmatic level in (DCE) Alternative, a Consolidated production rate of up to 80 pits per year the Complex Transformation SPEIS and Centers of Excellence (CCE) Alternative, at the Savannah River Site (SRS) in at the site-specific level in the LANL and Capability-Based Alternative. The South Carolina and at LANL were Sitewide Environmental Impact Complex Transformation SPEIS also analyzed in the Programmatic Statement (SWEIS), and recently analyzed a No Action Alternative. Pit Environmental Impact Statement for completed a review of those prior production levels of up to 200 pits per Stockpile Stewardship and Management analyses in a separate Supplement year at a single site were analyzed in the (DOE/EIS–0236) (SSM PEIS). In Analysis (SA) for each document. Pit DCE and CCE Alternatives, and nominal December 1996, NNSA issued a ROD production alternatives were previously pit production levels of up to 50 pits per announcing a decision setting pit analyzed in the Complex year were analyzed under the production at LANL at 20 pits per year Transformation SPEIS. Capability-Based Alternative. With (61 FR 68014; December 26, 1996). FOR FURTHER INFORMATION CONTACT: For respect to plutonium operations and pit Tiering from the SSM PEIS, the 1999 further information on this Amended production, the 2008 Programmatic LANL SWEIS (DOE/EIS–0283) provided ROD or the 2019 SPEIS SA, contact: Mr. ROD continued NNSA’s prior decision site-specific analysis for pit production James R. Sanderson, Office of NEPA to produce 20 pits per year at LANL levels at LANL of up to 80 pits per year. Policy and Compliance, U.S. until completion of a future Nuclear In the 1999 LANL ROD, NNSA Department of Energy, 1000 Posture Review (NPR). confirmed its decision for pit Independence Avenue SW, Washington, Both federal law and national security production at LANL at 20 pits per year. DC 20585–0119; phone: (202) 586–1402; policy now require pit production rates Various supplements to and re- or email to: [email protected]. of a minimum of 30 pits per year at evaluations of the SSM PEIS were This Amended ROD, the 2019 SPEIS LANL during 2026 and not less than 80 completed over the next several years. SA, and related NEPA documents are pits per year nationally during 2030. (50 In 2008, NNSA prepared the Complex available on the internet at https:// U.S.C. 2538a; Pub. L. 115–232). Because Transformation SPEIS, which analyzes www.energy.gov/nnsa/nnsa-nepa- operations involving SNM are complex, the potential environmental impacts of reading-room. implementing changes in operations alternatives for transforming the SUPPLEMENTARY INFORMATION: such as pit production takes several Complex in a manner consistent with
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national policy. Acknowledging the infrastructure. The alternative selected production since issuance of the shifting needs of national security in the 2008 Programmatic ROD was a Complex Transformation SPEIS. Since policy, the Complex Transformation combination of the DCE Alternative and 2014, federal law has required the SPEIS was prepared to provide NNSA a Capability-Based Alternative in which, nuclear security enterprise to produce with a flexible programmatic EIS that with respect to plutonium operations, not less than 30 war reserve plutonium could be tiered from when the United NNSA did not make any new decisions pits during 2026. Federal law now States faced the need to implement related to pit production capacity requires that the nuclear security changes to operations such as pit beyond 20 pits per year at LANL. In the enterprise produces not less than 80 war production. As it relates to plutonium 2008 Programmatic ROD, NNSA reserve plutonium pits during 2030 (50 operations, the Complex Transformation envisioned constructing a new facility— U.S.C. 2538a). SPEIS evaluates the potential impacts of the Chemistry and Metallurgy Research In addition, on January 27, 2017, the alternatives for structuring the Complex and Replacement Nuclear Facility President directed the Department of including the DCE Alternative, CCE (CMRR–NF)—as a replacement for Defense (DoD) to conduct an NPR which Alternative, and Capability-Based portions of an older facility at LANL was issued in 2018. The 2018 NPR Alternative, and each of these called the Chemistry and Metallurgy echoed the need for pit production and alternatives have several sub- Research (CMR) Facility. articulated a national policy that is consistent with Congressional and alternatives. The 2008 LANL SWEIS Changes Since Issuance of the Complex again provided site-specific analysis for Presidential direction, stating that the Transformation 2008 Programmatic United States will pursue initiatives to pit production levels at LANL of up to ROD 80 pits per year. In the 2008 LANL ensure the necessary capability, SWEIS ROD and subsequent RODs, NNSA has implemented many, but capacity, and responsiveness of the NNSA selected a No Action Alternative not all, aspects of the 2008 nuclear weapons infrastructure and the (continuation of existing operations) Programmatic ROD with respect to needed skill of the workforce, including with some elements of an Expanded plutonium operations. The primary providing the enduring capability and Operations Alternative, which change is that the CMRR–NF was not capacity to produce plutonium pits at a maintained NNSA’s decision for pit constructed. CMRR–NF was always rate of no fewer than 80 pits per year production levels of 20 pits per year at planned as a support facility for pit during 2030. The 2018 NPR also details LANL. In 2019, NNSA published its first production and was not itself to be a pit the evolving and uncertain nuclear production facility. Many support site-specific analysis for pit production threat environment facing the United operations for pit production have been at SRS, the Draft Environmental Impact States. Concurrent with the 2018 NPR, historically located in CMR. While Statement (EIS) for Plutonium Pit DOE conducted an Analysis of NNSA remains committed to the closure Production at the Savannah River Site Alternatives (AoA) to identify and of the CMR Facility, NNSA has made (SRS) in South Carolina (DOE/EIS– assess alternatives across DOE sites that upgrades to existing plutonium 0541), but at this time that site-specific could deliver the infrastructure to meet facilities, constructed new support analysis for SRS has not been finalized. the sustained plutonium pit facilities, and made administrative requirements of 80 pits per year. To The Complex Transformation SPEIS changes that have enabled more achieve the required annual pit considered a wide range of alternatives efficient use of newer existing LANL production rate, the AoA report to provide NNSA with sufficient facilities. Capabilities once housed in considered the construction of new flexibility in the continued CMR can be relocated to other facilities facilities and the refurbishment of transformation of the Complex. Some of at LANL, and a new CMRR–NF is no existing facilities and identifies SRS and the specific elements of different longer required to meet mission needs. LANL as the two preferred alternatives alternatives and sub-alternatives in the Another change since issuance of the to meet pit production requirements. Complex Transformation SPEIS include Complex Transformation SPEIS is that In 2018, Congress and the President an analysis of the impacts associated NNSA has made substantial facility also directed that LANL will produce a with construction of a new pit upgrades to address previous technical minimum of 30 pits per year for the production facility to produce 125 pits and seismic concerns related to LANL’s national pit production mission and per year, with surge capacity to produce pit production facility, the Plutonium directed it be capable of surge efforts to 200 pits per year. Sites that the Complex Facility. In the 2009 Amended ROD to exceed 30 pits per year to meet NPR and Transformation SPEIS evaluates for this the 2008 LANL SWEIS, NNSA issued a national policy (Public Law 115–232, level of pit production include LANL, decision on certain elements of an Section 3120). To these ends, the DoD SRS, the Pantex Plant (Pantex) in Texas, Expanded Operations Alternative at Under Secretary of Defense for the Y–12 National Security Complex LANL that authorized upgrades to the Acquisition and Sustainment and the (Y–12) in Tennessee, and the Nevada Plutonium Facility. Over the past ten NNSA Administrator issued a Joint National Security Site in Nevada. At years, NNSA has been implementing Statement on May 10, 2018, describing LANL, the Complex Transformation these upgrade projects. Separately, there NNSA’s recommended alternative to SPEIS also includes an analysis of two was a three-year operational pause in pursue a two-prong approach—50 pits distinct upgrades to existing facilities, LANL’s Plutonium Facility but per year produced at SRS and a rather than construction of a new operations have resumed. The minimum of 30 pits per year produced facilities, including one to support Plutonium Facility is again operational at LANL. In addition to improving the production of 125 pits per year (with and pit production activities have resiliency, flexibility, and redundancy surge capacity to produce 200 pits per resumed. of our Nuclear Security Enterprise by year) and one to support production of The United States has emphasized the reducing reliance on a single production 50–80 pits per year. At SRS, the need to eventually produce 80 pits per site, this approach enables the Complex Transformation SPEIS year and while the drivers and the capability to allow for enhanced evaluated a pit production facility that requirement for pit production have warhead safety and security to meet would use the planned Mixed-Oxide remained relatively unchanged there DoD and NNSA requirements; Fuel Fabrication Facility (MFFF) and Pit have been specific changes in the law deliberate, methodical replacement of Disassembly and Conversion Facility and national policy regarding pit older existing plutonium pits with
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newly manufactured pits as risk Transformation SPEIS should be operations for all resource areas would mitigation against plutonium aging; and supplemented, a new environmental not be different, or would not be response to changes in deterrent impact statement be prepared, or that no significantly different, than impacts in requirements driven by renewed great further NEPA analysis is required. existing NEPA analyses. NNSA has power competition. Finally, since Although pertinent regulations do not determined that that the proposed issuance of the 2008 Programmatic require public comment on an SA, action does not constitute a substantial ROD, a significant portion of the MFFF NNSA decided, in its discretion, that change from actions analyzed at SRS has been constructed. At the time public comment in this instance would previously and there are no significant that the Complex Transformation SPEIS be helpful. NNSA issued the Draft 2019 new circumstances or information was being completed, construction of SPEIS SA for public review on June 28, relevant to environmental concerns. the MFFF had just begun. The MFFF 2019 (84 FR 31055). NNSA considered While no further NEPA documentation was built to produce mixed oxide fuel all comments received during the public is required at a programmatic level and from surplus plutonium for use in comment period. NNSA also reviewed NNSA may amend the existing Complex commercial nuclear reactors. For a all comment documents received during Transformation SPEIS ROD, to variety of reasons NNSA issued a Notice the public scoping process for the site- implement the proposed action NNSA is of Termination to the MFFF specific SRS Pit Production EIS for preparing a site-specific EIS for actions construction contractor on October 10, relevance to the 2019 SPEIS SA. NNSA at SRS and has prepared a site-specific 2018, cancelling the contract for the included a comment response document SA for actions at LANL. The site- facility. The constructed portion of as Appendix A to the Final 2019 SPEIS specific SA that formally re-evaluates MFFF was built to current safety and SA. After preparing and considering the the SWEIS at LANL is now final. Thus, security standards and contains three 2019 SPEIS SA, NNSA has determined consistent with 10 CFR 1021.315(e), the floors and more than 400,000 square feet that no further NEPA analysis is needed existing 2008 Programmatic ROD for the of available space. The potential prior to issuing this Amended ROD. Complex Transformation SPEIS can be availability of this facility is, in part, amended at this time to document Summary of Impacts why NNSA has reevaluated a single pit NNSA’s decision on pit production at production site at the programmatic In Section 2.3 of the 2019 SPEIS SA, LANL and cancel NNSA’s prior level and is currently conducting a site- NNSA discusses environmental changes commitment to construct the CMRR–NF specific NEPA analysis for pit at LANL that have occurred since support facility. NNSA may issue an production at SRS. publication of the Complex additional Amended ROD after the site- Transformation SPEIS and that are specific EIS for actins at SRS is NEPA Process for Amending the ROD relevant to the analysis in the 2019 completed. NNSA prepared this Amended ROD SPEIS SA. The 2019 SPEIS SA analyzes pursuant to the regulations of the the potential impacts of the Proposed Environmentally Preferable Alternative Council on Environmental Quality Action on land resources, visual The analyses in the Complex (CEQ) for implementing NEPA (40 CFR resources, noise, air quality, water Transformation SPEIS of the parts 1500–1508) and DOE’s NEPA resources, geology and soils, ecological environmental impacts associated with implementing procedures (10 CFR part resources, cultural resources, the programmatic alternatives indicated 1021). This Amended ROD is based on socioeconomics, environmental justice, that the No Net Production/Capability information and analysis in the infrastructure, health and safety for Based Alternative is environmentally Complex Transformation SPEIS (DOE/ normal operations, accidents and preferable. Under this alternative NNSA EIS–0236–S4) issued on October 24, intentional destructive acts, waste would maintain capabilities to continue 2008 (73 FR 63460) and public management, and transportation and surveillance of the weapons stockpile, comments received; the 2019 SPEIS SA traffic. Section 3.2 of the 2019 SPEIS SA produce limited life components, and (DOE/EIS–0236–SA–02) and public provides (1) a summary of the potential dismantle weapons, but would not add comments received; other NEPA environmental impacts from the new types or increased numbers of analysis and public comments as noted Complex Transformation SPEIS, (2) the weapons to the stockpile. This in the 2019 SPEIS SA; and other factors estimate of potential impacts specific to alternative would result in the including federal law and NNSA’s the Proposed Action, and (3) a more minimum infrastructure demands, mission. detailed analysis of potential impacts produce the least amount of wastes, The Draft Complex Transformation for those NEPA resource areas where reduce worker radiation doses, and SPEIS included a robust public NNSA determined that there might be require the fewest employees. Almost participation process. NNSA received potentially significant new all of these reductions in potential comments from Federal agencies; state, circumstances or information relevant to impacts result from the reduced local, and tribal governments; public environmental concerns. Tables 3–1 and production levels assumed for this and private organizations; and 3–2 of the 2019 SPEIS SA present alternative. The environmentally individuals. In addition, during the 20 information in a comparative fashion for preferable alternative for programmatic public meetings that NNSA held on the each resource area. Table 3–3 addresses alternatives accounts for actions across Draft Complex Transformation SPEIS, the combined impacts, to the extent that the complex at multiple sites. This more than 600 speakers made oral they are known at this time, from pit determination may not apply to site- comments. NNSA reviewed and production at both SRS and LANL. specific determinations where other considered all comments received on Table 3–4 addresses Complex-wide factors are considered in the analysis. the Draft Complex Transformation transportation impacts. Section 4.0 of SPEIS before issuing the 2008 the 2019 SPEIS SA analyzes cumulative Amended Decision Programmatic ROD. impacts at both a programmatic level NNSA has decided at a programmatic NNSA prepared the 2019 SPEIS SA to and site-specific level. level to implement aspects of a determine whether, prior to proceeding NNSA’s conclusion based on the Modified DCE Alternative. LANL will with the effort to produce plutonium Final 2019 SPEIS SA is that complex- implement actions to produce a pits at a rate of not less than 80 pits per wide impacts of adopting a Modified minimum of 30 war reserve pits per year year during 2030, the existing Complex DCE Alternative for plutonium during 2026 for the national pit
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production mission and implement programs, and energy and water The Commission strongly encourages surge efforts to exceed 30 pits per year conservation programs. Any additional electronic filings of comments, protests up to the analyzed limit as necessary. site-specific mitigation actions would be and interventions in lieu of paper using Pit production at these levels will take identified in site-specific NEPA the eFiling link at http://www.ferc.gov. place without construction of CMRR– documents. Persons unable to file electronically may NF. Prior to implementing this decision, mail similar pleadings to the Federal NNSA will issue a site-specific Signing Authority Energy Regulatory Commission, 888 Amended ROD for the LANL SWEIS, as This document of the Department of First Street NE, Washington, DC 20426. appropriate. NNSA will continue to re- Energy was signed on August 24, 2020, Hand delivered submissions in evaluate the single-site pit production by Lisa E. Gordon-Hagerty, Under docketed proceedings should be strategy announced in the 2008 Secretary for Nuclear Security and delivered to Health and Human Programmatic ROD and complete the Administrator, NNSA, pursuant to Services, 12225 Wilkins Avenue, site-specific SRS EIS prior to delegated authority from the Secretary Rockville, Maryland 20852. announcing further decisions on pit of Energy. That document with the In addition to publishing the full text production. original signature and date is of this document in the Federal These decisions continue the maintained by DOE. For administrative Register, the Commission provides all transformation of the Complex purposes only, and in compliance with interested persons an opportunity to following the end of the Cold War and requirements of the Office of the Federal view and/or print the contents of this the cessation of nuclear weapons Register, the undersigned DOE Federal document via the internet through the testing, particularly decisions Register Liaison Officer has been Commission’s Home Page (http:// announced in the 1996 ROD for the authorized to sign and submit the ferc.gov) using the eLibrary link. Enter SSM PEIS (DOE/EIS–0236) (61 FR document in electronic format for the docket number excluding the last 68014; Dec. 26, 1996) and the 2008 publication, as an official document of three digits in the docket number field Programmatic Alternatives ROD for the the Department of Energy. This to access the document. At this time, the Complex Transformation SPEIS. This administrative process in no way alters Commission has suspended access to Amended ROD modifies only the the legal effect of this document upon the Commission’s Public Reference plutonium operations aspects of the publication in the Federal Register. Room, due to the proclamation 2008 Programmatic ROD related to pit Signed in Washington, DC on August 28, declaring a National Emergency production at LANL. NNSA has made 2020. concerning the Novel Coronavirus no proposals to, and there are no Treena V. Garrett, Disease (COVID–19), issued by the changes to, NNSA’s decisions on other President on March 13, 2020. For aspects of the 2008 Programmatic ROD. Federal Register Liaison Officer, U.S. Department of Energy. assistance, contact the Federal Energy Regulatory Commission at Basis for Decision [FR Doc. 2020–19348 Filed 9–1–20; 8:45 am] [email protected] or call In making these decisions, NNSA BILLING CODE 6450–01–P toll-free, (886) 208–3676 or TYY, (202) considered the 2019 SPEIS SA, the 502–8659. Complex Transformation SPEIS, other DEPARTMENT OF ENERGY Comment Date: 5:00 p.m. Eastern referenced NEPA analyses, and its Time on September 21, 2020. statutory responsibilities to support the Federal Energy Regulatory nuclear weapons stockpile. Federal law Dated: August 27, 2020. Commission and national security policies continue Nathaniel J. Davis, Sr., Deputy Secretary. to require NNSA to maintain a safe, [Docket No. EF20–6–000] secure, and reliable nuclear weapons [FR Doc. 2020–19380 Filed 9–1–20; 8:45 am] stockpile and create a responsive Southeastern Power Administration; BILLING CODE 6717–01–P nuclear weapons infrastructure that are Notice of Filing cost-effective and have adequate capacity to meet reasonably foreseeable Take notice that on August 21, 2020, DEPARTMENT OF ENERGY national security requirements. This Southeastern Power Administration submitted tariff filing per: 300.10: Federal Energy Regulatory Amended ROD will enable NNSA to Commission continue meeting federal law and Cumberland 2020 Rate Adjustment to be national security requirements. effective 10/1/2020. [Docket No. CP16–10–000] Any person desiring to intervene or to Mitigation Measures protest this filing must file in Mountain Valley Pipeline, LLC; Notice As described in the Complex accordance with Rules 211 and 214 of of Request for Extension of Time the Commission’s Rules of Practice and Transformation SPEIS and the 2008 Take notice that on August 25, 2020, Procedure (18 CFR 385.211, 385.214). Programmatic ROD, NNSA operates in Mountain Valley Pipeline, LLC Protests will be considered by the compliance with environmental laws, (Mountain Valley) requested that the Commission in determining the regulations, and policies within a Federal Energy Regulatory Commission appropriate action to be taken, but will framework of contractual requirements; (Commission) grant an extension of not serve to make protestants parties to many of these requirements mandate time, until October 13, 2022, to the proceeding. Any person wishing to actions to control and mitigate potential complete the Mountain Valley Pipeline become a party must file a notice of adverse environmental effects. Project (Project), as authorized in the Examples of mitigation measures intervention or motion to intervene, as February 19, 2019 Order Issuing include site security and threat appropriate. Such notices, motions, or Certificates and Granting Abandonment protection plans, emergency plans, protests must be filed on or before the (Certificate Order).1 Integrated Safety Management Systems, comment date. On or before the pollution prevention and waste comment date, it is not necessary to 1 Mountain Valley Pipeline, LLC, 161 FERC minimization programs, cultural serve motions to intervene or protests 61,043 (2017), order on reh’g, 163 FERC 61,197 resource and protected species on persons other than the Applicant. Continued
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Mountain Valley states it has not certificate complied with the National DEPARTMENT OF ENERGY completed Project construction due to Environmental Policy Act.6 At the time unforeseen litigation and permitting a pipeline requests an extension of time, Federal Energy Regulatory delays outside of Mountain Valley’s orders on certificates of public Commission control. This includes litigation directly convenience and necessity are final and challenging Project permits and the Commission will not re-litigate their [Project No. 14227–003] authorizations as well as litigation issuance.7 The OEP Director, or his or associated with other infrastructure her designee, will act on all of those Nevada Hydro Inc.; Notice of projects. These challenges have affected, extension requests that are uncontested. Anticipated Schedule for Lake Elsinore directly or indirectly, Project permits Advanced Pumped Storage Project and authorizations from the U.S. Forest In addition to publishing the full text of this document in the Federal Service, Bureau of Land Management, On October 2, 2017, Nevada Hydro Register, the Commission provides all U.S. Army Corps of Engineers, U.S. Fish Inc. filed an application requesting interested persons an opportunity to and Wildlife Service, and the National authorization to construct and operate view and/or print the contents of this Park Service. Because of these the Lake Elsinore Advanced Pumped permitting challenges, Mountain Valley document via the internet through the Storage Project. The project would be states it will not be able to complete Commission’s Home Page (http:// located on Lake Elsinore and San Juan construction and make the Project www.ferc.gov) using the eLibrary link. Creek near the town of Lake Elsinore in facilities available for service by October Enter the docket number excluding the Riverside and San Diego Counties, 13, 2020. last three digits in the docket number California. The project would occupy This notice establishes a 15-calendar field to access the document. At this about 845 acres of federal land day intervention and comment period time, the Commission has suspended administered by the U.S. Forest Service. deadline. Any person wishing to access to Commission’s Public comment on Mountain Valley’s request Reference Room, due to the The application will be processed for an extension of time may do so. No proclamation declaring a National according to the following revised reply comments or answers will be schedule. considered. If you wish to obtain legal Emergency concerning the Novel status by becoming a party to the Coronavirus Disease (COVID–19), issued Notice of Ready for Environmental proceedings for this request, you by the President on March 13, 2020. For Analysis: December 11, 2020 assistance, contact FERC at should, on or before the comment date Draft Environmental Impact Statement: [email protected] or call stated below, file a motion to intervene July 9, 2021 in accordance with the requirements of toll-free, (886) 208–3676 or TYY, (202) the Commission’s Rules of Practice and 502–8659. Final Environmental Impact Statement: December 10, 2021 Procedure (18 CFR 385.214 or 385.211) The Commission strongly encourages and the Regulations under the Natural electronic filings of comments, protests In addition, in accordance with Title 2 Gas Act (18 CFR 157.10). and interventions in lieu of paper using 41 of the Fixing America’s Surface As a matter of practice, the the eFile link at http://www.ferc.gov. Transportation Act, enacted on Commission itself generally acts on Persons unable to file electronically may December 4, 2015, agencies are to requests for extensions of time to mail similar pleadings to the Federal publish completion dates for all federal complete construction for Natural Gas environmental reviews and Act facilities when such requests are Energy Regulatory Commission, 888 authorizations. This notice identifies the contested before order issuance. For First Street NE, Washington, DC 20426. those extension requests that are Hand delivered submissions in Commission’s anticipated schedule for contested,3 the Commission will aim to docketed proceedings should be issuance of the final order for the issue an order acting on the request delivered to Health and Human project, which is based on the within 45 days.4 The Commission will Services, 12225 Wilkins Avenue, anticipated date of issuance of the final address all arguments relating to Rockville, Maryland 20852. Environmental Impact Statement. whether the applicant has demonstrated Comment Date: 5:00 p.m. Eastern Accordingly, we currently anticipate there is good cause to grant the Time on September 11, 2020. issuing a final order for the project no extension.5 The Commission will not later than: consider arguments that re-litigate the Dated: August 27, 2020. Issuance of Final Order March 17, 2022 issuance of the certificate order, Nathaniel J. Davis, Sr., including whether the Commission Deputy Secretary. If a schedule change becomes properly found the project to be in the [FR Doc. 2020–19376 Filed 9–1–20; 8:45 am] necessary, an additional notice will be public convenience and necessity and BILLING CODE 6717–01–P provided so that interested parties and whether the Commission’s government agencies are kept informed environmental analysis for the of the project’s progress.
(2018) (Certificate Order), aff’d sub. nom., Dated: August 27, 2020. Appalachian Voices v. FERC, No. 17–1271, 2019 Nathaniel J. Davis, Sr., WL 847199 (D.C. Cir. Feb. 19, 2019). Deputy Secretary. 2 Only motions to intervene from entities that were party to the underlying proceeding will be [FR Doc. 2020–19384 Filed 9–1–20; 8:45 am] 6 Similarly, the Commission will not re-litigate accepted. Algonquin Gas Transmission, LLC, 170 BILLING CODE 6717–01–P FERC 61,144, at P 39 (2020). the issuance of an NGA section 3 authorization, 3 Contested proceedings are those where an including whether a proposed project is not intervenor disputes any material issue of the filing. inconsistent with the public interest and whether 18 CFR 385.2201(c)(1) (2019). the Commission’s environmental analysis for the 4 Algonquin Gas Transmission, LLC, 170 FERC permit order complied with NEPA. 61,144, at P 40 (2020). 7 Algonquin Gas Transmission, LLC, 170 FERC 5 Id. at P 40. 61,144, at P 40 (2020).
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DEPARTMENT OF ENERGY Any person or the Commission’s staff The Commission strongly encourages may, within 60 days after issuance of electronic filings of comments in lieu of Federal Energy Regulatory the instant notice by the Commission, paper using the eFile link at http:// Commission file pursuant to Rule 214 of the www.ferc.gov. In lieu of electronic filing, Commission’s Procedural Rules (18 CFR you may submit a paper copy. [Docket No. CP20–510–000] 385.214) a motion to intervene or notice Submissions sent via the U.S. Postal of intervention and pursuant to Section Service must be addressed to: Kimberly Equitrans, L.P.; Notice of Request 157.205 of the regulations under the D. Bose, Secretary, Federal Energy Under Blanket Authorization NGA (18 CFR 157.205), a protest to the Regulatory Commission, 888 First Street Take notice that on August 19, 2020, request. If no protest is filed within the NE, Room 1A, Washington, DC 20426. Equitrans, L.P. (Equitrans), 2200 Energy time allowed therefore, the proposed Submissions sent via any other carrier Drive, Canonsburg, Pennsylvania 15317, activity shall be deemed to be must be addressed to: Kimberly D. Bose, filed a prior notice application pursuant authorized effective the day after the Secretary, Federal Energy Regulatory to sections 157.205, 157.213(b), and time allowed for filing a protest. If a Commission, 12225 Wilkins Avenue, 157.216(b) of the Federal Energy protest is filed and not withdrawn Rockville, Maryland 20852. Regulatory Commission’s (Commission) within 30 days after the allowed time Dated: August 27, 2020. regulations under the Natural Gas Act for filing a protest, the instant request Nathaniel J. Davis, Sr., shall be treated as an application for (NGA), and Equitrans’ blanket certificate Deputy Secretary. issued in Docket No. CP96–532–000. authorization pursuant to section 7 of [FR Doc. 2020–19378 Filed 9–1–20; 8:45 am] Equitrans proposes to convert the Tepe the NGA. BILLING CODE 6717–01–P 3900 injection/withdrawal storage well Pursuant to section 157.9 of the to an observation well, remove the Commission’s rules, 18 CFR 157.9, associated drip, and abandon-in-place within 90 days of this Notice the DEPARTMENT OF ENERGY 385 feet of six-inch-diameter natural gas Commission staff will either: Complete pipeline. Equitrans states that the cause its environmental assessment (EA) and Federal Energy Regulatory for converting the Tepe 3900 well is to place it into the Commission’s public Commission mitigate future safety concerns due to a record (eLibrary) for this proceeding, or recent hill slip in the vicinity of the issue a Notice of Schedule for [Project No. 12766–007] Environmental Review. If a Notice of well. Equitrans states that conversion of Green Mountain Power Corporation; Schedule for Environmental Review is the well will not impact the operational Notice of Application Accepted for issued, it will indicate, among other capability of the Tepe Storage Field. Filing, Soliciting Motions To Intervene milestones, the anticipated date for the Equitrans states the total cost for the and Protests, Ready for Environmental Commission staff’s issuance of the final abandonment is 27,000 dollars. The Analysis, and Soliciting Comments, environmental impact statement (FEIS) Tepe 3900 storage well is part of Recommendations, Terms and or EA for this proposal. The filing of the Equitrans’ Tepe Storage Field located in Conditions, and Prescriptions Allegheny County, Pennsylvania, all as EA in the Commission’s public record more fully set forth in the application, for this proceeding or the issuance of a Take notice that the following which is open to the public for Notice of Schedule for Environmental hydroelectric application has been filed inspection. Review will serve to notify federal and with the Commission and is available In addition to publishing the full text state agencies of the timing for the for public inspection. of this document in the Federal completion of all necessary reviews, and a. Type of Application: New License Register, the Commission provides all the subsequent need to complete all for Transmission Line Project. interested persons an opportunity to federal authorizations within 90 days of b. Project No.: 12766–007. view and/or print the contents of this the date of issuance of the Commission c. Date filed: November 22, 2019. document via the internet through the staff’s FEIS or EA. d. Applicant: Green Mountain Power Commission’s Home Page (http:// Persons who wish to comment only Corporation (Green Mountain Power). ferc.gov) using the eLibrary link. Enter on the environmental review of this e. Name of Project: Clay Hill Road the docket number excluding the last project should submit an original and Line 66 Transmission Project (Clay Hill three digits in the docket number field two copies of their comments to the Project). to access the document. At this time, the Secretary of the Commission. f. Location: The Clay Hill Project is Commission has suspended access to Environmental commenters will be located along Clay Hill Road in Windsor the Commission’s Public Reference placed on the Commission’s County, Vermont. The Clay Hill Project Room, due to the proclamation environmental mailing list, will receive does not occupy any federal land. declaring a National Emergency copies of the environmental documents, g. Filed Pursuant to: Federal Power concerning the Novel Coronavirus and will be notified of meetings Act 16 U.S.C. 791(a)–825(r). Disease (COVID–19), issued by the associated with the Commission’s h. Applicant Contact: John Greenan, President on March 13, 2020. For environmental review process. Green Mountain Power Corporation, assistance, contact FERC at Environmental commenters will not be 2152 Post Road, Rutland, VT 05701; [email protected] or call required to serve copies of filed Phone at (802) 770–2195, or email at toll-free, (886) 208–3676 or TYY, (202) documents on all other parties. John.Greenan@ 502–8659. However, the non-party commenter will greenmountainpower.com. Any questions regarding this not receive copies of all documents filed i. FERC Contact: Bill Connelly, (202) application should be directed to by other parties or issued by the 502–8587 or [email protected]. Matthew Eggerding, Assistant General Commission (except for the mailing of Deadline for filing motions to intervene Counsel, Equitrans, L.P., 2200 Energy environmental documents issued by the and protests, comments, Drive, Canonsburg, PA 15317, or phone Commission) and will not have the right recommendations, terms and (412) 553–5786, or by email to seek court review of the conditions, and prescriptions: 60 days [email protected]. Commission’s final order. from the issuance date of this notice;
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reply comments are due 105 days from proposing any changes to project on or before the specified comment date the issuance date of this notice. facilities or operation. for the particular application. The Commission strongly encourages l. In addition to publishing the full All filings must: (1) Bear in all capital electronic filing. Please file motions to text of this notice in the Federal letters the title PROTEST, MOTION TO intervene and protests, comments, Register, the Commission provides all INTERVENE, COMMENTS, REPLY recommendations, terms and interested persons an opportunity to COMMENTS, RECOMMENDATIONS, conditions, and prescriptions using the view and/or print the contents of this TERMS AND CONDITIONS, or Commission’s eFiling system at https:// notice, as well as other documents in PRESCRIPTIONS; (2) set forth in the ferconline.ferc.gov/FERCOnline.aspx. the proceeding (e.g., license application) heading the name of the applicant and Commenters can submit brief comments via the internet through the the project number of the application to up to 6,000 characters, without prior Commission’s Home Page (http:// which the filing responds; (3) furnish registration, using the eComment system www.ferc.gov) using the eLibrary link. the name, address, and telephone at https://ferconline.ferc.gov/ Enter the docket number excluding the number of the person protesting or QuickComment.aspx. You must include last three digits in the docket number intervening; and (4) otherwise comply your name and contact information at field to access the document (P–12766). with the requirements of 18 CFR the end of your comments. For At this time, the Commission has 385.2001 through 385.2005. All assistance, please contact FERC Online suspended access to the Commission’s comments, recommendations, terms and Support at FERCOnlineSupport@ Public Reference Room due to the conditions or prescriptions must set ferc.gov, (866) 208–3676 (toll free), or proclamation declaring a National forth their evidentiary basis and (202) 502–8659 (TTY). Emergency concerning the Novel otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain The Commission’s Rules of Practice Coronavirus Disease (COVID–19) issued copies of the application directly from require all intervenors filing documents by the President on March 13, 2020. For the applicant. A copy of any protest or with the Commission to serve a copy of assistance, contact FERC at motion to intervene must be served that document on each person on the [email protected] or call upon each representative of the official service list for the project. toll-free, (886) 208–3673 or (202) 502– applicant specified in the particular Further, if an intervenor files comments 8659 (TTY). application. A copy of all other filings or documents with the Commission You may also register online at in reference to this application must be relating to the merits of an issue that https://ferconline.ferc.gov/ accompanied by proof of service on all may affect the responsibilities of a FERCOnline.aspx to be notified via persons listed in the service list particular resource agency, they must email of new filings and issuances prepared by the Commission in this also serve a copy of the document on related to this or other pending projects. proceeding, in accordance with 18 CFR that resource agency. For assistance, contact FERC Online 4.34(b) and 385.2010. j. This application has been accepted Support. n. A license applicant must file no for filing and is ready for environmental m. Anyone may submit comments, a later than 60 days following the date of analysis at this time. protest, or a motion to intervene in issuance of this notice: (1) A copy of the k. Project Description: The existing accordance with the requirements of water quality certification; (2) a copy of Clay Hill Project consists of: (1) A 2.3- Rules of Practice and Procedure, 18 CFR the request for certification, including mile-long, 12.5-kV, three-phase 385.210, .211, and .214. In determining proof of the date on which the certifying electrical line mounted on top of Green the appropriate action to take, the agency received the request; or (3) Mountain Power’s regional distribution Commission will consider all protests or evidence of waiver of water quality line (Line 66) along Clay Hill Road from other comments filed, but only those certification. Pole 115 to 62x; and (2) appurtenant who file a motion to intervene in o. Procedural Schedule: facilities. The project serves as a accordance with the Commission’s The application will be processed primary transmission line for the North Rules may become a party to the according to the following schedule. Hartland Hydroelectric Project No. proceeding. Any comments, protests, or Revisions to the schedule will be made 2816. Green Mountain Power is not motions to intervene must be received as appropriate.
Milestone Target date
Filing of interventions, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway pre- October 2020. scriptions. Commission issues Environmental Assessment ...... May 2021. Comments on Environmental Assessment ...... June 2021.
Final amendments to the application DEPARTMENT OF ENERGY 2800, Houston, Texas 77046, filed a must be filed with the Commission no prior notice application pursuant to later than 30 days from the issuance Federal Energy Regulatory sections 157.205 and 157.216(b) of the date of this notice. Commission Federal Energy Regulatory Dated: August 27, 2020. [Docket No. CP20–511–000] Commission’s (Commission) regulations under the Natural Gas Act, and Gulf Nathaniel J. Davis, Sr., Gulf South Pipeline Company, LLC; South’s blanket certificate issued in Deputy Secretary. Notice of Request Under Blanket Docket No. CP82–430–000. Gulf South [FR Doc. 2020–19383 Filed 9–1–20; 8:45 am] Authorization proposes to abandon in-place four, BILLING CODE 6717–01–P Take notice that on August 21, 2020, 1,000 horsepower compressor units, Gulf South Pipeline Company, LLC various buildings, yard and station (Gulf South), 9 Greenway Plaza, Suite piping, and appurtenant auxiliary
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facilities located at its Koran Schedule for Environmental Review is DEPARTMENT OF ENERGY Compressor Station in Bossier and issued, it will indicate, among other Webster parishes, Louisiana, all as more milestones, the anticipated date for the Federal Energy Regulatory fully set forth in the application, which Commission staff’s issuance of the Commission is open to the public for inspection. environmental assessment (EA) for this [Docket No. CP20–487–000] In addition to publishing the full text proposal. The filing of the EA in the of this document in the Federal Commission’s public record for this Northern Natural Gas Company; Notice Register, the Commission provides all proceeding or the issuance of a Notice of Schedule for Environmental Review interested persons an opportunity to of Schedule for Environmental Review of the South Sioux City to Sioux Falls view and/or print the contents of this will serve to notify federal and state A-Line Replacement Project document via the internet through the Commission’s Home Page (http:// agencies of the timing for the On June 29, 2020, Northern Natural ferc.gov) using the eLibrary link. Enter completion of all necessary reviews, and Gas Company (Northern) filed an the docket number excluding the last the subsequent need to complete all application in Docket No. CP20–487– three digits in the docket number field federal authorizations within 90 days of 000 requesting a Certificate of Public to access the document. At this time, the the date of issuance of the Commission Convenience and Necessity pursuant to Commission has suspended access to staff’s EA. 7(b) and 7(c) of the Natural Gas Act to the Commission’s Public Reference Persons who wish to comment only abandon, construct, and operate certain Room, due to the proclamation on the environmental review of this natural gas facilities. The proposed declaring a National Emergency project should submit an original and project is known as the South Sioux concerning the Novel Coronavirus two copies of their comments to the City to Sioux Falls A-Line Replacement Project (Project) and Northern states that Disease (COVID–19), issued by the Secretary of the Commission. the Project would ensure safe and President on March 13, 2020. For Environmental commenters will be assistance, contact FERC at efficient operation of its existing placed on the Commission’s [email protected] or call pipeline system in Nebraska and South environmental mailing list, will receive toll-free, (886) 208–3676 or TYY, (202) Dakota by replacing mechanical joints 502–8659. copies of the environmental documents, with modern welded steel pipeline. Any questions regarding this and will be notified of meetings On July 14, 2020, the Federal Energy application should be directed to Juan associated with the Commission’s Regulatory Commission (Commission or Eligio, Jr., Supervisor of Regulatory environmental review process. FERC) issued its Notice of Application Affairs, Gulf South Pipeline Company, Environmental commenters will not be for the Project. Among other things, that LLC, 9 Greenway Plaza, Houston, Texas required to serve copies of filed notice alerted agencies issuing federal 77046, at (713) 479–3480 or by email to documents on all other parties. authorizations of the requirement to [email protected]. Questions However, the non-party commenter will complete all necessary reviews and to may also be directed to Payton not receive copies of all documents filed reach a final decision on a request for Barrientos, Sr. Regulatory Analyst, Gulf by other parties or issued by the a federal authorization within 90 days of South Pipeline Company, LLC, 9 Commission (except for the mailing of the date of issuance of the Commission Greenway Plaza, Houston, Texas, 77046, environmental documents issued by the staff’s Environmental Assessment (EA) at (713) 479–8157 or by email to Commission) and will not have the right for the Project. This instant notice [email protected]. to seek court review of the identifies FERC staff’s planned schedule Any person or the Commission’s staff Commission’s final order. for the completion of the EA for the may, within 60 days after issuance of Project. the instant notice by the Commission, The Commission strongly encourages file pursuant to Rule 214 of the electronic filings of comments, protests Schedule for Environmental Review Commission’s Procedural Rules (18 CFR and interventions in lieu of paper using Issuance of EA—January 5, 2021 385.214) a motion to intervene or notice the eFile link at http://www.ferc.gov. In 90-day Federal Authorization Decision of intervention and pursuant to Section lieu of electronic filing, you may submit Deadline—April 5, 2021 157.205 of the regulations under the a paper copy. Submissions sent via the If a schedule change becomes NGA (18 CFR 157.205), a protest to the U.S. Postal Service must be addressed necessary, additional notice will be request. If no protest is filed within the to: Kimberly D. Bose, Secretary, Federal provided so that the relevant agencies time allowed therefore, the proposed Energy Regulatory Commission, 888 are kept informed of the Project’s activity shall be deemed to be First Street NE, Room 1A, Washington, progress. authorized effective the day after the DC 20426. Submissions sent via any Project Description time allowed for filing a protest. If a other carrier must be addressed to: protest is filed and not withdrawn Kimberly D. Bose, Secretary, Federal Northern proposes the following activities: (1) Abandon in-place 79.2 within 30 days after the allowed time Energy Regulatory Commission, 12225 miles of its 14- and 16-inch-diameter for filing a protest, the instant request Wilkins Avenue, Rockville, Maryland shall be treated as an application for M561 A-Line and replace the pipeline 20852. authorization pursuant to section 7 of with 82.2 miles of 12-inch-diameter the NGA. Dated: August 27, 2020. pipeline in Dakota and Dixon Counties, Pursuant to section 157.9 of the Nathaniel J. Davis, Sr., Nebraska, and Lincoln and Union Commission’s rules, 18 CFR 157.9, Deputy Secretary. Counties, South Dakota; (2) install an within 90 days of this Notice the [FR Doc. 2020–19379 Filed 9–1–20; 8:45 am] approximately 3.15-mile-long, 12-inch- Commission staff will either: Complete diameter tie-over pipeline in Lincoln its environmental assessment EA and BILLING CODE 6717–01–P County, South Dakota; (3) abandon in- place it into the Commission’s public place the existing 0.16-mile-long, 2- record (eLibrary) for this proceeding or inch-diameter Ponca branch pipeline issue a Notice of Schedule for and replace it with a 1.9-mile-long, 3- Environmental Review. If a Notice of inch-diameter pipeline in Dixon
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County, Nebraska; (4) abandon in-place ferc-online/overview to register for i. FERC Contact: Bill Connelly, (202) the existing 0.06-mile-long, 2-inch- eSubscription. 502–8587 or [email protected]. diameter Jackson branch pipeline in Additional information about the j. Deadline for filing motions to Dakota County, Nebraska; and (5) Project is available from the intervene and protests, comments, construct, modify, or remove Commission’s Office of External Affairs recommendations, terms and appurtenant facilities, including pig at (866) 208–FERC or on the FERC conditions, and prescriptions: 60 Days launchers and receivers, two new website (www.ferc.gov). Using the from the issuance date of this notice; metering facilities, regulators, tie-overs, eLibrary link, select General Search reply comments are due 105 days from and associated piping and valves. from the eLibrary menu, enter the the issuance date of this notice. Northern states that after Commission selected date range and Docket Number The Commission strongly encourages approval of the Project, portions of the excluding the last three digits (i.e., electronic filing. Please file motions to abandoned pipeline would be CP20–487), and follow the instructions. intervene and protests, comments, purchased and removed by a third-party For assistance with access to eLibrary, recommendations, terms and salvage company. the helpline can be reached at (866) conditions, and prescriptions using the 208–3676, TTY (202) 502–8659, or at Commission’s eFiling system at https:// Background [email protected]. The ferconline.ferc.gov/FERCOnline.aspx. On July 23, 2019, the Commission eLibrary link on the FERC website also Commenters can submit brief comments staff granted Northern’s request to use provides access to the texts of formal up to 6,000 characters, without prior FERC’s pre-filing environmental review documents issued by the Commission, registration, using the eComment system process and assigned the Project Docket such as orders, notices, and rule at https://ferconline.ferc.gov/ No. PF19–8–000. On November 22, makings. QuickComment.aspx. You must include your name and contact information at 2019, the Commission issued a Notice of Dated: August 27, 2020. Intent to Prepare an Environmental the end of your comments. For Nathaniel J. Davis, Sr., assistance, please contact FERC Online Assessment for the Planned South Sioux Deputy Secretary. City to Sioux Falls A-Line Replacement Support at FERCOnlineSupport@ [FR Doc. 2020–19377 Filed 9–1–20; 8:45 am] Project, Request for Comments on ferc.gov, (866) 208–3676 (toll free), or Environmental Issues, and Notice of BILLING CODE 6717–01–P (202) 502–8659 (TTY). The Commission’s Rules of Practice Public Scoping Sessions (NOI). The NOI require all intervenors filing documents was issued during the pre-filing review DEPARTMENT OF ENERGY with the Commission to serve a copy of of the Project and was sent to affected that document on each person on the landowners; federal, state, and local Federal Energy Regulatory official service list for the project. government agencies; elected officials; Commission Further, if an intervenor files comments environmental and public interest [Project No. 2816–050] or documents with the Commission groups; Native American tribes; other relating to the merits of an issue that interested parties; and local libraries North Hartland, LLC; Notice of may affect the responsibilities of a and newspapers. Application Accepted for Filing, particular resource agency, they must In response to the NOI, the Soliciting Motions To Intervene and also serve a copy of the document on Commission received comments from Protests, Ready for Environmental that resource agency. the National Park Service, the Nebraska Analysis, and Soliciting Comments, k. This application has been accepted Department of Natural Resources, and Recommendations, Terms and for filing and is ready for environmental four landowners. The primary issues Conditions, and Prescriptions analysis at this time. raised by the commentors were impacts l. Project Description: The existing on water quality, visual resources, the Take notice that the following North Hartland Project consists of: (1) A Missouri National Recreational River hydroelectric application has been filed steel-lined intake structure in the Corps’ and the Lewis and Clark National with the Commission and is available North Hartland Dam that is equipped Historic Trail, ground water and surface for public inspection. with trashracks with 2-inch clear bar water resources, floodplains, agriculture a. Type of Application: New Major spacing; (2) a 470-foot-long, 12-foot- and grazing, residential areas in close License. diameter steel penstock that provides proximity to the pipeline, and impacts b. Project No.: 2816–050. c. Date filed: November 26, 2019. flow to a 4.0-megawatt (MW) adjustable from soil erosion, contamination, and d. Applicant: North Hartland, LLC blade, vertical shaft turbine-generator landform degradation. All substantive (North Hartland). unit located inside of a 59-foot-long, 40- comments will be addressed in the EA. e. Name of Project: North Hartland foot-wide concrete powerhouse; (3) a The U.S. Army Corps of Engineers is Hydroelectric Project (North Hartland 12-foot-diameter bypass conduit that a cooperating agency in the preparation Project). branches off of the 12-foot-diameter of the EA. f. Location: The North Hartland penstock about 100 feet before the powerhouse, and that empties into a 60- Additional Information Project is located on the Ottauquechee River in Windsor County, Vermont. The foot-long concrete-lined channel In order to receive notification of the North Hartland Project occupies 20.8 through a bypass control gate; (4) a 30- issuance of the EA and to keep track of acres of land managed by the U.S. Army inch-diameter steel penstock that all formal issuances and submittals in Corps of Engineers (Corps). branches off of the 12-foot-diamater specific dockets, the Commission offers g. Filed Pursuant To: Federal Power bypass conduit about 50 feet upstream a free service called eSubscription. This Act 16 U.S.C. 791(a)–825(r). of the bypass control gate, and that can reduce the amount of time you h. Applicant Contact: Andrew J. provides flow to a 0.1375–MW fixed spend researching proceedings by Locke, President, Essex Hydro geometry, horizontal pump turbine- automatically providing you with Associates, LLC, 55 Union Street, generator unit located on a raised notification of these filings, document Boston, MA 02108; Phone at (617) 367– platform outside of the southern wall of summaries, and direct links to the 0032, or email at alocke@ the powerhouse; (5) a 400-foot-long, 50 documents. Go to https://www.ferc.gov/ essexhydro.com. to 150-foot-wide tailrace channel; (6) a
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transmission line that comprises an Rules of Practice and Procedure, 18 CFR Final amendments to the application approximately 600-foot-long, 12.5 385.210, .211, and .214. In determining must be filed with the Commission no kilovolt (kV) underground segment, and the appropriate action to take, the later than 30 days from the issuance a 4,000-foot-long, 12.5-kV overhead Commission will consider all protests or date of this notice. segment that connect the generators to other comments filed, but only those Dated: August 27, 2020. Green Mountain Power Corporation’s who file a motion to intervene in Nathaniel J. Davis, Sr., Clay Hill Road Line 66 Transmission accordance with the Commission’s Deputy Secretary. Project No. 12766; and (9) appurtenant Rules may become a party to the facilities. proceeding. Any comments, protests, or [FR Doc. 2020–19382 Filed 9–1–20; 8:45 am] The project is managed to meet daily motions to intervene must be received BILLING CODE 6717–01–P peak electrical system demand, as on or before the specified comment date needed using the available head and for the particular application. reservoir outflow from the Corps’ North DEPARTMENT OF ENERGY All filings must: (1) Bear in all capital Hartland dam. The current license letters the title PROTEST, MOTION TO Federal Energy Regulatory requires North Hartland to release a INTERVENE, COMMENTS, REPLY Commission continuous minimum flow of 23 cubic COMMENTS, RECOMMENDATIONS, feet per second (cfs) from July 1 through [Docket No. EF20–7–000] October 31, and 40 cfs during the TERMS AND CONDITIONS, or remainder of the year (or inflow to the PRESCRIPTIONS; (2) set forth in the Western Area Power Administration; reservoir, whichever is less), for the heading the name of the applicant and Notice of Filing purpose of protecting and enhancing the project number of the application to Take notice that on August 25, 2020, aquatic resources in the Ottauquechee which the filing responds; (3) furnish Southeastern Power Administration River. The project has an average annual the name, address, and telephone submitted tariff filing per: 300.10: generation of approximately 13,991,990 number of the person protesting or CRSP_SLCAIP_WAPA190–20200825 to kilowatt-hours from 2014 through 2018. intervening; and (4) otherwise comply North Hartland proposes to release with the requirements of 18 CFR be effective 10/1/2020. the following minimum and maximum 385.2001 through 385.2005. All Any person desiring to intervene or to flows, respectively, to the downstream comments, recommendations, terms and protest this filing must file in reach: (1) 60 and 700 cfs from October conditions or prescriptions must set accordance with Rules 211 and 214 of 1 through March 31; (2) 160 and 835 cfs forth their evidentiary basis and the Commission’s Rules of Practice and from April 1 through April 31; (3) 160 otherwise comply with the requirements Procedure (18 CFR 385.211, 385.214). and 550 cfs from May 1 through May 31; of 18 CFR 4.34(b). Agencies may obtain Protests will be considered by the (4) 140 and 450 cfs from June 1 through copies of the application directly from Commission in determining the June 30; and (5) 60 and 300 cfs from July the applicant. A copy of any protest or appropriate action to be taken, but will 1 through September 30. motion to intervene must be served not serve to make protestants parties to m. In addition to publishing the full upon each representative of the the proceeding. Any person wishing to text of this notice in the Federal applicant specified in the particular become a party must file a notice of Register, the Commission provides all application. A copy of all other filings intervention or motion to intervene, as interested persons an opportunity to in reference to this application must be appropriate. Such notices, motions, or view and/or print the contents of this accompanied by proof of service on all protests must be filed on or before the notice, as well as other documents in persons listed in the service list comment date. On or before the the proceeding (e.g., license application) prepared by the Commission in this comment date, it is not necessary to via the internet through the proceeding, in accordance with 18 CFR serve motions to intervene or protests Commission’s Home Page (http:// 4.34(b) and 385.2010. on persons other than the Applicant. www.ferc.gov) using the eLibrary link. o. A license applicant must file no The Commission strongly encourages Enter the docket number excluding the later than 60 days following the date of electronic filings of comments, protests last three digits in the docket number issuance of this notice: (1) A copy of the and interventions in lieu of paper using field to access the document (P–2816). water quality certification; (2) a copy of the eFiling link at http://www.ferc.gov. At this time, the Commission has the request for certification, including Persons unable to file electronically may suspended access to the Commission’s proof of the date on which the certifying mail similar pleadings to the Federal Public Reference Room due to the agency received the request; or (3) Energy Regulatory Commission, 888 proclamation declaring a National evidence of waiver of water quality First Street NE, Washington, DC 20426. Emergency concerning the Novel certification. Hand delivered submissions in Coronavirus Disease (COVID–19) issued docketed proceedings should be by the President on March 13, 2020. For p. Procedural Schedule: The delivered to Health and Human assistance, contact FERC at application will be processed according Services, 12225 Wilkins Avenue, [email protected] or call to the following schedule. Revisions to Rockville, Maryland 20852. toll-free, (886) 208–3673 or (202) 502– the schedule will be made as In addition to publishing the full text 8659 (TTY). appropriate. of this document in the Federal Register, the Commission provides all You may also register online at Milestone Target date https://ferconline.ferc.gov/ interested persons an opportunity to FERCOnline.aspx to be notified via Filing of interventions, protests, October 2020. view and/or print the contents of this email of new filings and issuances comments, recommenda- document via the internet through the tions, preliminary terms and related to this or other pending projects. conditions, and preliminary Commission’s Home Page (http:// For assistance, contact FERC Online fishway prescriptions. ferc.gov) using the eLibrary link. Enter Support. Commission issues Environ- May 2021. the docket number excluding the last n. Anyone may submit comments, a mental Assessment. three digits in the docket number field protest, or a motion to intervene in Comments on Environmental June 2021. to access the document. At this time, the Assessment. accordance with the requirements of Commission has suspended access to
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the Commission’s Public Reference Comments Due: 5 p.m. ET 9/17/20. Dated: August 27, 2020. Room, due to the proclamation Docket Numbers: ER20–2754–000. Nathaniel J. Davis, Sr., declaring a National Emergency Applicants: AEP Texas Inc. Deputy Secretary. concerning the Novel Coronavirus Description: § 205(d) Rate Filing: [FR Doc. 2020–19375 Filed 9–1–20; 8:45 am] Disease (COVID–19), issued by the AEPTX-Sparta Solar Generation BILLING CODE 6717–01–P President on March 13, 2020. For Interconnection Agreement to be assistance, contact the Federal Energy effective 8/14/2020. Regulatory Commission at Filed Date: 8/27/20. ENVIRONMENTAL PROTECTION [email protected] or call Accession Number: 20200827–5082. AGENCY toll-free, (886) 208–3676 or TYY, (202) Comments Due: 5 p.m. ET 9/17/20. 502–8659. Docket Numbers: ER20–2755–000. [EPA–HQ–OPP–2017–0720; FRL–10012–56] Comment Date: 5:00 p.m. Eastern Applicants: Caithness Long Island, Time on September 24, 2020. Pesticide Registration Review; Draft LLC. Human Health and/or Ecological Risk Description: Compliance Filing: New Dated: August 27, 2020. Assessments for Strychnine; Notice of eTariff Baseline Filing to be effective 7/ Nathaniel J. Davis, Sr., Availability Deputy Secretary. 1/2020. Filed Date: 8/27/20. AGENCY: Environmental Protection [FR Doc. 2020–19381 Filed 9–1–20; 8:45 am] Accession Number: 20200827–5124. Agency (EPA). BILLING CODE 6717–01–P Comments Due: 5 p.m. ET 9/17/20. ACTION: Notice. Docket Numbers: ER20–2756–000. SUMMARY: This notice announces the DEPARTMENT OF ENERGY Applicants: Arizona Public Service Company. availability of EPA’s draft human health Federal Energy Regulatory Description: § 205(d) Rate Filing: Rate and/or ecological risk assessments for Commission Schedule No. 302—PNM Pseudo-Tie the registration review of strychnine. Agreement to be effective 10/27/2020. DATES: Comments must be received on Combined Notice of Filings #1 Filed Date: 8/27/20. or before November 2, 2020. Accession Number: 20200827–5146. ADDRESSES: Submit your comments, to Take notice that the Commission Comments Due: 5 p.m. ET 9/17/20. received the following electric rate the docket identification (ID) number for Docket Numbers: ER20–2757–000. filings: the specific pesticide of interest Applicants: PacifiCorp. Docket Numbers: ER05–1056–010. provided in the Table in Unit IV, by one Description: § 205(d) Rate Filing: Applicants: Bonneville Power of the following methods: UMPA TSOA Rev 5 to be effective 10/ • Administration. Federal eRulemaking Portal: http:// 26/2020. Description: Bonneville Power www.regulations.gov. Follow the online Filed Date: 8/27/20. Administration submits tariff filing per instructions for submitting comments. _ Accession Number: 20200827–5182. Do not submit electronically any 35.19a(b): Refund Report Vistra Comments Due: 5 p.m. ET 9/17/20. Intermediate Company, LLC to be information you consider to be effective N/A. Docket Numbers: ER20–2758–000. Confidential Business Information (CBI) Applicants: Public Service Company Filed Date: 8/26/20. or other information whose disclosure is Accession Number: 20200826–5150. of New Mexico. restricted by statute. Description: § 205(d) Rate Filing: PIA • Comments Due: 5 p.m. ET 9/16/20. Mail: OPP Docket, Environmental with Pattern and Duran Mesa to be Protection Agency Docket Center (EPA/ Docket Numbers: ER20–2751–000. effective 10/26/2020. DC), (28221T), 1200 Pennsylvania Ave. Applicants: PPL Electric Utilities Filed Date: 8/27/20. NW, Washington, DC 20460–0001. Corporation, PJM Interconnection, Accession Number: 20200827–5183. • Hand Delivery: To make special L.L.C. Comments Due: 5 p.m. ET 9/17/20. arrangements for hand delivery or Description: § 205(d) Rate Filing: PPL The filings are accessible in the delivery of boxed information, please Electric submits CESF SA No. 5750 to Commission’s eLibrary system (https:// follow the instructions at http:// be effective 8/31/2020. elibrary.ferc.gov/idmws/search/ www.epa.gov/dockets/contacts.html. Filed Date: 8/26/20. fercgensearch.asp) by querying the Please note that due to the public Accession Number: 20200826–5141. docket number. health emergency the EPA Docket Comments Due: 5 p.m. ET 9/16/20. Any person desiring to intervene or Center (EPA/DC) and Reading Room Docket Numbers: ER20–2752–000. protest in any of the above proceedings was closed to public visitors on March Applicants: Southwest Power Pool, must file in accordance with Rules 211 31, 2020. Our EPA/DC staff will Inc. and 214 of the Commission’s continue to provide customer service Description: § 205(d) Rate Filing: Regulations (18 CFR 385.211 and via email, phone, and webform. For 3618R1 Little Blue Wind Project, LLC 385.214) on or before 5:00 p.m. Eastern further information on EPA/DC services, GIA to be effective 7/29/2020. time on the specified comment date. docket contact information and the Filed Date: 8/27/20. Protests may be considered, but current status of the EPA/DC and Accession Number: 20200827–5067. intervention is necessary to become a Reading Room, please visit https:// Comments Due: 5 p.m. ET 9/17/20. party to the proceeding. www.epa.gov/dockets. Docket Numbers: ER20–2753–000. eFiling is encouraged. More detailed FOR FURTHER INFORMATION CONTACT: Applicants: Southwest Power Pool, information relating to filing For pesticide specific information Inc. requirements, interventions, protests, contact: The Chemical Review Manager Description: § 205(d) Rate Filing: service, and qualifying facilities filings for the pesticide of interest identified in 3435R1 Magnet Wind Farm GIA can be found at: http://www.ferc.gov/ the Table in Unit IV. Cancellation to be effective 7/30/2020. docs-filing/efiling/filing-req.pdf. For For general questions on the Filed Date: 8/27/20. other information, call (866) 208–3676 registration review program, contact: Accession Number: 20200827–5069. (toll free). For TTY, call (202) 502–8659. Melanie Biscoe, Pesticide Re-Evaluation
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Division (7508P), Office of Pesticide will not be disclosed except in respond to comments and may request Programs, Environmental Protection accordance with procedures set forth in public input on risk mitigation before Agency, 1200 Pennsylvania Ave. NW, 40 CFR part 2. completing a proposed registration Washington, DC 20460–0001; telephone 2. Tips for preparing your comments. review decision for the pesticides listed number: (703) 305–7106; email address: When preparing and submitting your in the Table in Unit IV. Through this [email protected]. comments, see the commenting tips at program, EPA is ensuring that each SUPPLEMENTARY INFORMATION: http://www.epa.gov/dockets/ pesticide’s registration is based on comments.html. current scientific and other knowledge, I. General Information 3. Environmental justice. EPA seeks to including its effects on human health A. Does this action apply to me? achieve environmental justice, the fair and the environment. treatment and meaningful involvement This action is directed to the public III. Authority in general, and may be of interest to a of any group, including minority and/or wide range of stakeholders including low-income populations, in the EPA is conducting its registration environmental, human health, farm development, implementation, and review of the chemicals listed in the worker, and agricultural advocates; the enforcement of environmental laws, Table in Unit IV pursuant to section 3(g) chemical industry; pesticide users; and regulations, and policies. To help of the Federal Insecticide, Fungicide, address potential environmental justice members of the public interested in the and Rodenticide Act (FIFRA) and the issues, the Agency seeks information on sale, distribution, or use of pesticides. Procedural Regulations for Registration any groups or segments of the Since others also may be interested, the Review at 40 CFR part 155, subpart C. population who, as a result of their Agency has not attempted to describe all Section 3(g) of FIFRA provides, among location, cultural practices, or other the specific entities that may be affected other things, that the registrations of factors, may have atypical or by this action. If you have any questions pesticides are to be reviewed every 15 disproportionately high and adverse regarding the applicability of this action years. Under FIFRA, a pesticide product human health impacts or environmental to a particular entity, consult the may be registered or remain registered effects from exposure to the pesticides Chemical Review Manager identified in only if it meets the statutory standard discussed in this document, compared the Table in Unit IV. for registration given in FIFRA section to the general population. B. What should I consider as I prepare 3(c)(5) (7 U.S.C. 136a(c)(5)). When used my comments for EPA? II. Background in accordance with widespread and 1. Submitting CBI. Do not submit this Registration review is EPA’s periodic commonly recognized practice, the information to EPA through review of pesticide registrations to pesticide product must perform its regulations.gov or email. Clearly mark ensure that each pesticide continues to intended function without unreasonable the part or all of the information that satisfy the statutory standard for adverse effects on the environment; that you claim to be CBI. For CBI registration, that is, the pesticide can is, without any unreasonable risk to information in a disk or CD–ROM that perform its intended function without man or the environment, or a human you mail to EPA, mark the outside of the unreasonable adverse effects on human dietary risk from residues that result disk or CD–ROM as CBI and then health or the environment. As part of from the use of a pesticide in or on food. identify electronically within the disk or the registration review process, the IV. What action is the Agency taking? CD–ROM the specific information that Agency has completed comprehensive is claimed as CBI. In addition to one draft human health and/or ecological Pursuant to 40 CFR 155.58, this notice complete version of the comment that risk assessments for all pesticides listed announces the availability of EPA’s includes information claimed as CBI, a in the Table in Unit IV. After reviewing human health and/or ecological risk copy of the comment that does not comments received during the public assessments for the pesticides shown in contain the information claimed as CBI comment period, EPA may issue a the following table and opens a 60-day must be submitted for inclusion in the revised risk assessment, explain any public comment period on the risk public docket. Information so marked changes to the draft risk assessment, and assessments.
TABLE—DRAFT RISK ASSESSMENTS BEING MADE AVAILABLE FOR PUBLIC COMMENT
Chemical review manager and Registration review case name and No. Docket ID No. contact information
Strychnine, Case 3133 ...... EPA–HQ–OPP–2015–0754 ...... Srijana Shrestha, [email protected], (703) 305–6471.
Pursuant to 40 CFR 155.53(c), EPA is revised risk assessment, explain any or information during the comment providing an opportunity, through this changes to the draft risk assessment, and period. The Agency may, at its notice of availability, for interested respond to comments. discretion, consider data or information parties to provide comments and input Information submission requirements. submitted at a later date. concerning the Agency’s draft human Anyone may submit data or information • The data or information submitted health and/or ecological risk in response to this document. To be must be presented in a legible and assessments for the pesticides listed in considered during a pesticide’s the Table in Unit IV. The Agency will registration review, the submitted data useable form. For example, an English consider all comments received during or information must meet the following translation must accompany any the public comment period and make requirements: material that is not in English and a changes, as appropriate, to a draft • To ensure that EPA will consider written transcript must accompany any human health and/or ecological risk data or information submitted, information submitted as an audio- assessment. EPA may then issue a interested persons must submit the data graphic or video-graphic record. Written
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material may be submitted in paper or or other information whose disclosure is identify electronically within the disk or electronic form. restricted by statute. CD–ROM the specific information that • Submitters must clearly identify the • Mail: OPP Docket, Environmental is claimed as CBI. In addition to one source of any submitted data or Protection Agency Docket Center (EPA/ complete version of the comment that information. DC), (28221T), 1200 Pennsylvania Ave, includes information claimed as CBI, a • Submitters may request the Agency NW, Washington, DC 20460–0001. copy of the comment that does not to reconsider data or information that • Hand Delivery: To make special contain the information claimed as CBI the Agency rejected in a previous arrangements for hand delivery or must be submitted for inclusion in the review. However, submitters must delivery of boxed information, please public docket. Information so marked explain why they believe the Agency follow the instructions at http:// will not be disclosed except in should reconsider the data or www.epa.gov/dockets/contacts.html. accordance with procedures set forth in information in the pesticide’s Please note that due to the public 40 CFR part 2. registration review. health emergency the EPA Docket 2. Tips for preparing your comments. As provided in 40 CFR 155.58, the Center (EPA/DC) and Reading Room When preparing and submitting your registration review docket for each was closed to public visitors on March comments, see the commenting tips at pesticide case will remain publicly 31, 2020. Our EPA/DC staff will http://www.epa.gov/dockets/ accessible through the duration of the continue to provide customer service comments.html. registration review process; that is, until via email, phone, and webform. For 3. Environmental justice. EPA seeks to all actions required in the final decision further information on EPA/DC services, achieve environmental justice, the fair on the registration review case have docket contact information and the treatment and meaningful involvement been completed. current status of the EPA/DC and of any group, including minority and/or Reading Room, please visit https:// low-income populations, in the Authority: 7 U.S.C. 136 et seq. www.epa.gov/dockets. development, implementation, and Dated: July 23, 2020. FOR FURTHER INFORMATION CONTACT: enforcement of environmental laws, Mary Reaves, For pesticide specific information regulations, and policies. To help Acting Director, Pesticide Re-Evaluation contact: The Chemical Review Manager address potential environmental justice Division, Office of Pesticide Programs. for the pesticide of interest identified in issues, the Agency seeks information on [FR Doc. 2020–19388 Filed 9–1–20; 8:45 am] the Table in Unit IV. any groups or segments of the BILLING CODE 6560–50–P For general questions on the population who, as a result of their registration review program, contact: location, cultural practices, or other Melanie Biscoe, Pesticide Re-Evaluation factors, may have atypical or ENVIRONMENTAL PROTECTION Division (7508P), Office of Pesticide disproportionately high and adverse AGENCY Programs, Environmental Protection human health impacts or environmental Agency, 1200 Pennsylvania Ave. NW, effects from exposure to the pesticides [EPA–HQ–OPP–2017–0720; FRL–10012–59] Washington, DC 20460–0001; telephone discussed in this document, compared to the general population. Pesticide Registration Review; Draft number: (703) 305–7106; email address: Human Health and/or Ecological Risk [email protected]. II. Background Assessments for Several Pesticides; SUPPLEMENTARY INFORMATION: Registration review is EPA’s periodic Notice of Availability I. General Information review of pesticide registrations to ensure that each pesticide continues to AGENCY: Environmental Protection A. Does this action apply to me? satisfy the statutory standard for Agency (EPA). This action is directed to the public registration, that is, the pesticide can ACTION: Notice. in general, and may be of interest to a perform its intended function without wide range of stakeholders including SUMMARY: This notice announces the unreasonable adverse effects on human availability of EPA’s draft human health environmental, human health, farm health or the environment. As part of and/or ecological risk assessments for worker, and agricultural advocates; the the registration review process, the the registration review of 10,10’- chemical industry; pesticide users; and Agency has completed comprehensive oxybisphenoxarsine (OBPA), members of the public interested in the draft human health and/or ecological amicarbazone, aminopyralid, sale, distribution, or use of pesticides. risk assessments for all pesticides listed dimethenamid/dimethenamid-p, Since others also may be interested, the in the Table in Unit IV. After reviewing endothall, fluoxastrobin, folpet, Agency has not attempted to describe all comments received during the public ipconazole, iprodione, metconazole, the specific entities that may be affected comment period, EPA may issue a polixetonium chloride, prothioconazole, by this action. If you have any questions revised risk assessment, explain any sodium pyrithione. regarding the applicability of this action changes to the draft risk assessment, and to a particular entity, consult the respond to comments and may request DATES: Comments must be received on Chemical Review Manager identified in public input on risk mitigation before or before November 2, 2020. the Table in Unit IV. completing a proposed registration ADDRESSES: Submit your comments, to review decision for the pesticides listed B. What should I consider as I prepare the docket identification (ID) number for in the Table in Unit IV. Through this my comments for EPA? the specific pesticide of interest program, EPA is ensuring that each provided in the Table in Unit IV, by one 1. Submitting CBI. Do not submit this pesticide’s registration is based on of the following methods: information to EPA through current scientific and other knowledge, • Federal eRulemaking Portal: http:// regulations.gov or email. Clearly mark including its effects on human health www.regulations.gov. Follow the online the part or all of the information that and the environment. instructions for submitting comments. you claim to be CBI. For CBI Do not submit electronically any information in a disk or CD–ROM that III. Authority information you consider to be you mail to EPA, mark the outside of the EPA is conducting its registration Confidential Business Information (CBI) disk or CD–ROM as CBI and then review of the chemicals listed in the
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Table in Unit IV pursuant to section 3(g) for registration given in FIFRA section IV. What action is the Agency taking? of the Federal Insecticide, Fungicide, 3(c)(5) (7 U.S.C. 136a(c)(5)). When used and Rodenticide Act (FIFRA) and the in accordance with widespread and Pursuant to 40 CFR 155.58, this notice Procedural Regulations for Registration commonly recognized practice, the announces the availability of EPA’s Review at 40 CFR part 155, subpart C. pesticide product must perform its human health and/or ecological risk Section 3(g) of FIFRA provides, among intended function without unreasonable assessments for the pesticides shown in other things, that the registrations of adverse effects on the environment; that the following table and opens a 60-day pesticides are to be reviewed every 15 is, without any unreasonable risk to public comment period on the risk years. Under FIFRA, a pesticide product man or the environment, or a human assessments. may be registered or remain registered dietary risk from residues that result only if it meets the statutory standard from the use of a pesticide in or on food.
TABLE—DRAFT RISK ASSESSMENTS BEING MADE AVAILABLE FOR PUBLIC COMMENT
Registration review case name and No. Docket ID No. Chemical review manager and contact information
10,10’-oxybisphenoxarsine, (OBPA), Case 0044 ...... EPA–HQ–OPP–2009– Megan Snyderman, [email protected], (703) 0618. 347–0671. Amicarbazone, Case 7262 ...... EPA–HQ–OPP–2015– Samantha Thomas, [email protected], (703) 0400. 347–0514. Aminopyralid, Case 7267 ...... EPA–HQ–OPP–2013– Veronica Dutch, [email protected], 703–308– 0749. 8585. Dimethenamid/Dimethenamid-p, Case 7223 ...... EPA–HQ–OPP–2015– Lauren Weissenborn, [email protected], 0803. (703) 347–8601. Endothall, Case 2245 ...... EPA–HQ–OPP–2015– Robert Little, [email protected], (703) 347–8156. 0591. Fluoxastrobin, Case 7044 ...... EPA–HQ–OPP–2015– Rachel Fletcher, [email protected], (703) 347– 0295. 0512. Folpet, Case 0630 ...... EPA–HQ–OPP–2012– Christina Scheltema, [email protected], (703) 0859. 308–2201. Ipconazole (eco only), Case 7041 ...... EPA–HQ–OPP–2015– Lauren Bailey, [email protected], (703) 347–0734. 0590. Iprodione, Case 2335 ...... EPA–HQ- OPP–2012– Rachel Fletcher, [email protected], (703) 347– 0392. 0512. Metconazole, Case 7049 ...... EPA–HQ–OPP–2015– Jordan Page, [email protected], (703) 347–0467. 0013. Polixetonium chloride (Busan 77), Case 3034 ...... EPA–HQ–OPP–2015– Peter Bergquist, [email protected], (703) 347– 0256. 8563. Prothioconazole, Case 7054 ...... EPA–HQ–OPP–2015– Rachel Eberius, [email protected], (703) 347– 0474. 0492. Sodium pyrithione, Case 0209 ...... EPA–HQ–OPP–2011– Kendall Ziner, [email protected], (703) 347–8829. 0611.
Pursuant to 40 CFR 155.53(c), EPA is period. The Agency may, at its accessible through the duration of the providing an opportunity, through this discretion, consider data or information registration review process; that is, until notice of availability, for interested submitted at a later date. all actions required in the final decision parties to provide comments and input • The data or information submitted on the registration review case have concerning the Agency’s draft human must be presented in a legible and been completed. health and/or ecological risk useable form. For example, an English Authority: 7 U.S.C. 136 et seq. assessments for the pesticides listed in translation must accompany any Dated: July 23, 2020. the Table in Unit IV. The Agency will material that is not in English and a consider all comments received during written transcript must accompany any Mary Reaves, the public comment period and make information submitted as an audio- Acting Director, Pesticide Re-Evaluation changes, as appropriate, to a draft graphic or video-graphic record. Written Division, Office of Pesticide Programs. human health and/or ecological risk material may be submitted in paper or [FR Doc. 2020–19371 Filed 9–1–20; 8:45 am] assessment. EPA may then issue a electronic form. BILLING CODE 6560–50–P revised risk assessment, explain any • Submitters must clearly identify the changes to the draft risk assessment, and source of any submitted data or ENVIRONMENTAL PROTECTION respond to comments. information. AGENCY Information submission requirements. • Submitters may request the Agency Anyone may submit data or information to reconsider data or information that [EPA–HQ–OPP–2019–0565; FRL–10003–30] in response to this document. To be the Agency rejected in a previous considered during a pesticide’s review. However, submitters must Notice of Intent To Suspend Certain registration review, the submitted data explain why they believe the Agency Pesticide Registrations or information must meet the following should reconsider the data or AGENCY: Environmental Protection requirements: information in the pesticide’s Agency (EPA). • To ensure that EPA will consider registration review. ACTION: Notice. data or information submitted, As provided in 40 CFR 155.58, the interested persons must submit the data registration review docket for each SUMMARY: This notice, pursuant the or information during the comment pesticide case will remain publicly Federal Insecticide, Fungicide and
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Rodenticide Act (FIFRA), publishes a time, a timely and adequate request for the specific entities that may be affected Notice of Intent to Suspend certain a hearing is made by a person adversely by this action. pesticide registrations issued by EPA. affected by the Notice of Intent to B. How can I get copies of this document The Notice of Intent to Suspend was Suspend, or the registrant has satisfied and other related information? issued following the Agency’s issuance the EPA Administrator that the of a Data Call-In Notice (DCI), which registrant has complied fully with the The docket for this action, identified required the registrant of the affected requirements that served as a basis for by docket identification (ID) number pesticide products containing a certain the Notice of Intent to Suspend. Unit IV. EPA–HQ–OPP–2019–0565, is available pesticide active ingredient to take explains what must be done to avoid at http://www.regulations.gov or at the appropriate steps to secure certain data, suspension under this notice (i.e., how Office of Pesticide Programs Regulatory and following the registrant’s failure to to request a hearing or how to comply Public Docket (OPP Docket) in the submit these data or to take other fully with the requirements that served Environmental Protection Agency appropriate steps to secure the required as a basis for the Notice of Intent to Docket Center (EPA/DC), William data. The subject data were determined Suspend). Jefferson Clinton West Building., Room. to be required to maintain in effect the FOR FURTHER INFORMATION CONTACT: Erin 3334, 1301 Constitution Ave. NW, existing registrations of the affected Dandridge, Antimicrobial Division Washington, DC 20460–0001. The products. Failure to comply with the (7510P), Office of Pesticide Programs, Public Reading Room is open from 8:30 data requirements of a DCI is a basis for Environmental Protection Agency, 1200 a.m. to 4:30 p.m., Monday through suspension of the affected registrations Pennsylvania Ave. NW, Washington, DC Friday, excluding legal holidays. The under FIFRA. 20460–0001, telephone number: (703) telephone number for the Public DATES: The Notice of Intent to Suspend 347–0185, email: dandridge.erin@ Reading Room is (202) 566–1744, and included in this Federal Register notice epa.gov. the telephone number for the OPP will become a final and effective Docket is (703) 305–5805. Please review suspension order automatically by SUPPLEMENTARY INFORMATION: the visitor instructions and additional operation of law 30 days after the date I. General Information information about the docket available of the registrant’s receipt of the mailed at http://www.epa.gov/dockets. A. Does this action apply to me? Notice of Intent to Suspend or, if the II. Registrant Issued Notice of Intent To mailed Notice of Intent to Suspend is This action is directed to the public Suspend Active Ingredient, Product(s) returned to the EPA Administrator as in general and may be of interest to a Affected, and Date(s) Issued undeliverable, if delivery is refused, or wide range of stakeholders including if the EPA Administrator otherwise is environmental, human health, farm The registrant and products subject to unable to accomplish delivery to the worker and agricultural advocates; the this Notice of Intent to Suspend are registrant after making reasonable efforts chemical industry; pesticide users; and listed in Table 1. A Notice of Intent to to do so, the Notice of Intent to Suspend members of the public interested in the Suspend was sent to the registrant of the becomes effective 30 days after the date sale, distribution, or use of pesticides. affected products via the U.S. Postal of publication of this notice in the Since others also may be interested, the Service, first class mail, return receipt Federal Register, unless, during that Agency has not attempted to describe all requested.
TABLE 1—LIST OF REGISTRANT AND PRODUCTS SUBJECT TO SUSPENSION
Date EPA issued Registrant affected Active ingredient EPA registration Product name notice of intent No. to suspend
Qualco, Inc...... Dialkyl*methyl benzyl ammonium chloride *(60%C14, 30% 3525–22 Utikem July 27, 2020. C16, 5% C18, 5% C12). Algaesan Multi-Pur- pose Algaecide. Qualco, Inc...... Dialkyl*methyl benzyl ammonium chloride *(60%C14, 30% 3525–78 Algae De- July 27, 2020. C16, 5% C18, 5% C12). stroyer. Qualco, Inc...... Alkyl*dimethyl benzyl ammonium chloride* (60%C14, 3525–94 Coastal Pool July 27, 2020. 30%C16, 5%C18, 5%C12). Aid Powder Surface Sanitizer. Qualco, Inc...... Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 3525–97 Winter Aid ...... July 27, 2020. 25%C12, 15%C16). Qualco, Inc...... Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 3525–99 Coastal Pool July 27, 2020. 25%C12, 15%C16). Deodor. Qualco, Inc...... Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 3525–100 Winter Tablets July 27, 2020. 25%C12, 15%C16). ‘‘G’’. Qualco, Inc...... Alkyl* dimethyl benzyl ammonium chloride *(60%C14, 3525–103 Cal Jet July 27, 2020. 25%C12, 15%C16). Algaecide Liquid. Qualco, Inc...... Alkyl* dimethyl benzyl ammonium chloride *(95%C14, 3525–104 Iso Clor ‘‘C’’ July 27, 2020. 3%C12, 2%C16). Super Sta- bilized Chlorinating Powder. Qualco, Inc...... Dialkyl*methyl benzyl ammonium chloride *(60%C14, 30% 3525–106 Liquid July 27, 2020. C16, 5% C18, 5% C12). Algaecide.
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TABLE 1—LIST OF REGISTRANT AND PRODUCTS SUBJECT TO SUSPENSION—Continued
Date EPA issued Registrant affected Active ingredient EPA registration Product name notice of intent No. to suspend
Qualco, Inc...... Dialkyl*methyl benzyl ammonium chloride *(60%C14, 30% 3525–118 Coastal Con- July 27, 2020. C16, 5% C18, 5% C12). centrate 50.
III. Basis for Issuance of Notice of While the Agency did not receive a 3525–100, 3525–103, 3525–104, 3525– Intent To Suspend; Requirement List certified mail return receipt from Ms. 106, and 3525–118, the agency has The registrant failed to submit the Schaub, the agent for Qualco, Inc., or correspondence from the company’s data or information required by the Data from Qualco, Inc. for the Product representative after the PDCI Notices Call-In Notice, or to take other Specific Data Call-In (PDCI) Notice were issued evidencing that Ms. Schaub appropriate steps to secure the required requiring data generation and and thus Qualco, Inc. received the data for their pesticide products listed submission for EPA Reg. Nos. 3525–22, PDCIs and were aware of the data in Table 2 of this unit. 3525–78, 3525–94, 3524–97, 3525–99, requirements.
TABLE 2–A—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBER 3525–94
Guideline No. Reason for as listed Date EPA Date registrant Final data notice of in applicable Requirement name issued DCI received DCI due date intent to DCI suspend *
830.1550 ...... Product Identity and Composition .... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.1600 ...... Description of Materials Used to 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Produce the Product. ence. 830.1620 ...... Description of Production Process ... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.1650 ...... Description of Formulation Process 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.1670 ...... Discussion of Formation of Impuri- 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ties. ence. 830.1700 ...... Preliminary Analysis...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.1750 ...... Certified Limits...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.1800 ...... Enforcement Analytical Method ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6302 ...... Color ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6303 ...... Physical State...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6304 ...... Odor ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6313 ...... Stability to Normal and Elevated 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Temperatures,Metals, and Metal. ence. 830.6314 ...... Oxidizing or Reducing Action ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6315 ...... Flammability ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6316 ...... Explodability ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6317 ...... Storage Stability...... 3/11/2015 Confirmation through Correspond- 07/09/2016 2 & 4 ence. 830.6319 ...... Miscibility ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.6320 ...... Corrosion Characteristics...... 3/11/2015 Confirmation through Correspond- 07/09/2016 2 & 4 ence. 830.6321 ...... Dielectric Breakdown Voltage ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7000 ...... pH ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7050 ...... UV/Visible Absorption...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7100 ...... Viscosity ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7200 ...... Melting Point/Melting Range ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7220 ...... Boiling Point/Boiling Range ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence.
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TABLE 2–A—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBER 3525–94—Continued
Guideline No. Reason for as listed Date EPA Date registrant Final data notice of in applicable Requirement name issued DCI received DCI due date intent to DCI suspend *
830.7300 ...... Density/Relative Density...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7370 ...... Dissociation Constants in Water ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 830.7550 ...... Partition Coefficient (n-octanol/ 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 water), Shake Flask Method. ence. 830.7560 ...... Partition Coefficient (n-octanol/water, 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Generator Column Method. ence. 830.7570 ...... Partition Coefficient (n-octanol/water, 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Estimation by Liquid Chroma- ence. tography. 830.7840 ...... Water Solubility: Column Elution 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Method, Shake Flask Method. ence. 830.7860 ...... Water Solubility, Generator Column 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 Method. ence. 830. 7950 ...... Vapor Pressure ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.1100 ...... Acute Oral Toxicity ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.1200 ...... Acute Dermal Toxicity ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.1300 ...... Acute Inhalation Toxicity ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.2500 ...... Acute Dermal Irritation ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.2600 ...... Skin Sensitization...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 870.2400 ...... Acute Eye Irritation ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 810.2100 ...... Sterilants ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 810.2200 ...... Disinfectants for Use on Hard Sur- 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 faces. ence. 810.2300 ...... Sanitizers for Use on Hard Surfaces 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 810.2400 ...... Disinfectants and Sanitizers for Use 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 on Fabrics and Textiles. ence. 810.2500 ...... Air Sanitizers...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. 810.2600 ...... Disinfectants for Use in Water ...... 3/11/2015 Confirmation through Correspond- 11/09/2015 2 & 4 ence. * Table Notes: 1 No 90-day response received. 2 Inadequate 90-day response received. 3 No data received. 4 Inadequate data received.
TABLE 2–B—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBERS: 3525–22; 3525–78; 3525–97; 3525–99; 3525–100; 3525–103; 3525–106; AND 3525–118
Guideline No. Reason for as listed Requirement Date EPA Final data notice of in applicable name issued DCI Date registrant received DCI due date intent to DCI suspend *
830.1550 ...... Product Identity and Composition .... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.1600 ...... Description of Materials Used to 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Produce the Product. ence. 830.1620 ...... Description of Production Process ... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.1650 ...... Description of Formulation Process 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.1670 ...... Discussion of Formation of Impuri- 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ties. ence. 830.1700 ...... Preliminary Analysis...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.1750 ...... Certified Limits...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence.
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TABLE 2–B—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBERS: 3525–22; 3525–78; 3525–97; 3525–99; 3525–100; 3525–103; 3525–106; AND 3525–118—Continued
Guideline No. Reason for as listed Requirement Date EPA Final data notice of in applicable name issued DCI Date registrant received DCI due date intent to DCI suspend *
830.1800 ...... Enforcement Analytical Method ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6302 ...... Color ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6303 ...... Physical State...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6304 ...... Odor ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6313 ...... Stability to Normal and Elevated 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Temperatures, Metals, and Metal. ence. 830.6314 ...... Oxidizing or Reducing Action ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6315 ...... Flammability ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6316 ...... Explodability ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6317 ...... Storage Stability...... 3/06/2015 Confirmation through Correspond- 07/04/2016 2 & 4 ence. 830.6319 ...... Miscibility ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.6320 ...... Corrosion Characteristics...... 3/06/2015 Confirmation through Correspond- 07/04/2016 2 & 4 ence. 830.6321 ...... Dielectric Breakdown Voltage ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7000 ...... pH ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7050 ...... UV/Visible Absorption...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7100 ...... Viscosity ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7200 ...... Melting Point/Melting Range ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7220 ...... Boiling Point/Boiling Range ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7300 ...... Density/Relative Density...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7370 ...... Dissociation Constants in Water ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 830.7550 ...... Partition Coefficient (n-octanol/ 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 water), Shake Flask Method. ence. 830.7560 ...... Partition Coefficient (n-octanol/water, 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Generator Column Method. ence. 830.7570 ...... Partition Coefficient (n-octanol/water, 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Estimation by Liquid Chroma- ence. tography. 830.7840 ...... Water Solubility: Column Elution 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Method, Shake Flask Method. ence. 830.7860 ...... Water Solubility, Generator Column 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 Method. ence. 830.7950 ...... Vapor Pressure...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.1100 ...... Acute Oral Toxicity ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.1200 ...... Acute Dermal Toxicity ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.1300 ...... Acute Inhalation Toxicity ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.2500 ...... Acute Dermal Irritation ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.2600 ...... Skin Sensitization...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 870.2400 ...... Acute Eye Irritation ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 810.2100 ...... Sterilants ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 810.2200 ...... Disinfectants for Use on Hard Sur- 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 faces. ence.
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TABLE 2–B—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBERS: 3525–22; 3525–78; 3525–97; 3525–99; 3525–100; 3525–103; 3525–106; AND 3525–118—Continued
Guideline No. Reason for as listed Requirement Date EPA Final data notice of in applicable name issued DCI Date registrant received DCI due date intent to DCI suspend *
810.2300 ...... Sanitizers for Use on Hard Surfaces 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 810.2400 ...... Disinfectants and Sanitizers for Use 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 on Fabrics and Textiles. ence. 810.2500 ...... Air Sanitizers...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. 810.2600 ...... Disinfectants for Use in Water ...... 3/06/2015 Confirmation through Correspond- 11/04/2015 2 & 4 ence. * Table Notes: 1 No 90-day response received. 2 Inadequate 90-day response received. 3 No data received. 4 Inadequate data received.
TABLE 2–C—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBER 3525–104
Guideline No. Reason for as listed Date EPA Final data notice of in applicable Requirement name issued DCI Date registrant received DCI due date intent to DCI suspend *
830.1550 ...... Product Identity and Composition .... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.1600 ...... Description of Materials Used to 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 Produce the Product. ence. 830.1620 ...... Description of Production Process ... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.1650 ...... Description of Formulation Process 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.1670 ...... Discussion of Formation of Impuri- 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ties. ence. 830.1700 ...... Preliminary Analysis...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.1750 ...... Certified Limits...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.1800 ...... Enforcement Analytical Method ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6302 ...... Color ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6303 ...... Physical State...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6304 ...... Odor ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6313 ...... Stability to Normal and Elevated 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 Temperatures, Metals, and Metal. ence. 830.6314 ...... Oxidizing or Reducing Action ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6315 ...... Flammability ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6316 ...... Explodability ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6317 ...... Storage Stability...... 3/04/2015 Confirmation through Correspond- 07/02/2016 1 & 3 ence. 830.6319 ...... Miscibility ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.6320 ...... Corrosion Characteristics...... 3/04/2015 Confirmation through Correspond- 07/02/2016 1 & 3 ence. 830.6321 ...... Dielectric Breakdown Voltage ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7000 ...... pH ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7050 ...... UV/Visible Absorption...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7100 ...... Viscosity ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7200 ...... Melting Point/Melting Range ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence.
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TABLE 2–C—LIST OF REQUIREMENTS FOR EPA REGISTRATION NUMBER 3525–104—Continued
Guideline No. Reason for as listed Date EPA Final data notice of in applicable Requirement name issued DCI Date registrant received DCI due date intent to DCI suspend *
830.7220 ...... Boiling Point/Boiling Range ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7300 ...... Density/Relative Density...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7370 ...... Dissociation Constants in Water ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 830.7550 ...... Partition Coefficient (n-octanol/ 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 water), Shake Flask Method. ence. 830.7560 ...... Partition Coefficient (n-octanol/ 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 water), Generator Column Method. ence. 830.7570 ...... Partition Coefficient (n-octanol/ 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 water), Estimation by Liquid Chro- ence. matography. 830.7840 ...... Water Solubility: Column Elution 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 Method, Shake Flask Method. ence. 830.7860 ...... Water Solubility, Generator Column 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 Method. ence. 830.7950 ...... Vapor Pressure...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.1100 ...... Acute Oral Toxicity ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.1200 ...... Acute Dermal Toxicity ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.1300 ...... Acute Inhalation Toxicity ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.2500 ...... Acute Dermal Irritation ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.2600 ...... Skin Sensitization...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 870.2400 ...... Acute Eye Irritation ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 810.2100 ...... Sterilants ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 810.2200 ...... Disinfectants for Use on Hard Sur- 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 faces. ence. 810.2300 ...... Sanitizers for Use on Hard Surfaces 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 810.2400 ...... Disinfectants and Sanitizers for Use 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 on Fabrics and Textiles. ence. 810.2500 ...... Air Sanitizers...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. 810.2600 ...... Disinfectants for Use in Water ...... 3/04/2015 Confirmation through Correspond- 11/02/2015 1 & 3 ence. * Table Notes: 1 No 90-day response received. 2 Inadequate 90-day response received. 3 No data received. 4 Inadequate data received.
IV. Attachment III Suspension Report— numbered: 069184–30960, 069137– 11, 2015 to Qualco, Inc. via the email Explanatory Appendix 30946, 069119–30941, and 069104– address provided to the Agency for Ms. 30932 pursuant to FIFRA section Debbie Schaub, who was the designated 1. The letter sent to the registrant 4(g)(2)(B), which required the registrants company representative. A Microsoft contains an Attachment III— of products containing ADBAC used as Outlook server response email for PDCI– Explanatory Appendix. This an active ingredient to develop and 069104–30932 was received on March Explanatory Appendix also follows submit certain data. The data/ 11, 2015 by the Agency to indicate below and provides provides a information were determined to be delivery to Ms. Schaub was complete. discussion of the basis for the Notice of necessary to satisfy the reregistration Subsequently, the PDCIs were re-sent on Intent to Suspend issued herewith. requirements of FIFRA section 4(g). March 27, 2015 to an alternative Qualco, A. Aklyl Dimethyl Benzyl Ammonium Failure to comply with the requirements Inc. email address for Ms. Schaub Chloride (ADBAC) of the RED PDCI is a basis for because no response was received after suspension under FIFRA section email delivery to the original email On March 4, 2015, March 6, 2015, and 3(c)(2)(B). address. March 11, 2015, the Agency issued the The Agency sent PDCIs: 069184– Following a DCI issuance, registrants Reregistration Eligibility Decision 30960, 069137–30946, 069119–30941, are required to submit a 90-day response Document (RED) PDCI Notices and 069104–30932 on March 4, 6, and electing how they will satisfy the DCI
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data requirements. Qualco, Inc. failed to November 20, 2018 email included the Ms. Schaub responded to the submit a 90-day response electing how October 31, 2018 email discussed above Agency’s December 3, 2018 email chain it would satisfy the DCI data as part of its chain of prior by providing attachments, including requirements. correspondence. data matrices, Confidential Statement of After three years of no response from Ms. Schaub responded by email to the Formulas (CSF), and other forms, for 5 Qualco, Inc. on May 21, 2018, the Agency’s November 20, 2018 email on of the 10 products pending suspension Agency sent emails to Qualco, Inc. to November 26, 2018. The Agency’s (EPA Reg. Nos.: 3525–22, 3525–78, the attention of Ms. Schaub and Mr. October 31, 2018 email with the initial 3525–94, 3525–106, and 3525–118). Ms. Peter Ferentinos, who is another Notification of Deficiency warning letter Schaub stated in the December 3, 2018 designated Qualco, Inc. representative. was included in the chain of emails that email that additional forms and In the emails, the Agency discussed the were part of her email response. Qualco, responses for the other 5 products (EPA severity of the PDCI response failures by Inc., through Ms. Schaub, suggested Reg. Nos.: 3525–103, 3525–104, 3525– Qualco, Inc. These emails also scheduling a November 28, 2018 97, 3525–99, and 3525–100) would be forwarded once again the originally sent meeting in her November 26, 2018 submitted through a second CDX PDCIs and email with attachments and email. attempt. instructions. The Agency received An Agency email response was sent to On December 4, 2018 the Agency Microsoft Outlook server response Ms. Schaub on November 26, 2018 stated through email that the submitted emails for each PDCI (069184–30960, confirming the scheduling of a ADBAC PDCI responses would be 069137–30946, 069119–30941, and November 28, 2018 teleconference reviewed. The Agency requested that 069104–30932) email that confirmed meeting at 1 p.m. On November 28, Ms. Schaub submit the remaining that delivery to both addresses had been 2018 the Agency and Ms. Schaub met responses and suggested that, if some completed on May 21, 2018. via teleconference to discuss the products are dormant, then Qualco may After hearing nothing from Qualco overdue data requirements of PDCIs: opt to voluntarily cancel those products. between May 21 and October 31, 2018 On December 5, 2018, an email from 069104–30932, 069119–30941, 069137– the Agency emailed a Notification of the CDX system to the EPA 30946, 069184–30960, and the affected Deficiency letter to Qualco, Inc. on Antimicrobials Divison Reevaluation Qualco products (EPA Reg. Nos.: 3525– October 31, 2018 to the attention of Ms. mailbox was received. The December 5, 22, 3525–78, 3525–90, 3525–92, 3525– Schaub that warned the registrant of the 2018 CDX email indicated that a DCI 94, 3525–97, 3525–99, 3525–100, 3525– pending suspension of the affected response for only PDCI–069137–30946 103, 3525–104, 3525–106, and 3525– Qualco, Inc. ADBAC products. The had been submitted and included data 118). email listed the overdue PDCIs and the matrices, citation forms, and attached letter noted the specific Ms. Schaub subsequently sent the correspondence for only EPA deficient data requirements for each Agency an email on December 3, 2018 Registration Nos.: 3525–100, 3525–103, listed PDCI, discussed the lack of an to inform the Chemical Review Manager 3525–97, and 3525–99. No submissions adequate 90-day response for each PDCI, that a DCI response was being put were provided for EPA registration described how to respond to the together for ADBAC, that errors were number 3525–104 by email or CDX. deficiency letter, included the list of received after an attempt to upload files The Agency sent an email on then affected (EPA Reg. Nos.: 3525–22, to the EPA CDX, and to ask what other December 5, 2018 to Ms. Schaub 3525–78, 3525–90, 3525–92, 3525–94, specific forms were required for the informing Qualco that the emailed 3525–97, 3525–99, 3525–100, 3525–103, PDCI response. submissions were reviewed but 3525–104, 3525–106, and 3525–118), The Agency responded by email on numerous errors were found. The and stated that appropriate and December 3, 2018 and attached another Agency’s December 5, 2018 email adequate data to satisfy the overdue data copy of the PDCI–069104–30932 for Ms. requested that corrected responses be requirements must be received by the Schaub’s reference. This PDCI was sent as soon as possible. The following Agency within 10 business days attached as a representative DCI to list summarizes the errors. measured from the letter receipt by illustrate what needed to be done by • The ‘‘Requirements Status & Qualco, Inc. in order to avoid issuance Qualco to adequately respond to all Registrant’s Response’’ forms listed of Notices of Intent to Suspend. The issued PDCIs. The Agency once again response code 9; however, this code Agency received a Microsoft Outlook stated that instructions and required does not exist for PDCI responses and is server email on October 31, 2018 forms for Qualco’s response are not an adequate or appropriate indicating that the email and the explained in the PDCI. The CDX response. This error pertains to the attached information had been received helpdesk contact information was following products: EPA Reg. Nos.: by Qualco, Inc. on October 31, 2018. provided for Ms. Schaub’s reference. 3525–22, 3525–78, 3525–94, 3525–106, The same October 31, 2018 However, the Agency requested that and 3525–118. Notification of Deficiency letter was Qualco’s responses be sent directly by • The ‘‘Requirements Status & mailed via the US Postal Service on email to the Chemical Review Manager Registrant’s Response’’ forms were not November 8, 2018 along with another to avoid CDX errors or the product adequately completed. This error Notification of Deficiency letter for suspension process would continue. In pertains to the following products: EPA another chemical case (Busan 77). the Agency December 3, 2018 email, a Reg. Nos.: 3525–97, 3525–99, 3525–100, The Agency subsequently sent list of all the affected Qualco products and 3525–103. Qualco, Inc. an email to the attention of pending suspension (EPA Reg. Nos.: • The data matrices submitted for Ms. Schaub on November 20, 2018 3525–22, 3525–78, 3525–94, 3525–97, EPA Reg. Nos.: 3525–22, 3525–78, stating that a voicemail had been left for 3525–99, 3525–100, 3525–103, 3525– 3525–94, 3525–97, 3525–99, 3525–100, Ms. Schaub. The November 20, 2018 104, 3525–106, and 3525–118) was 3525–103, and 3525–106 are missing email and voicemail both requested a attached. The December 3, 2018 email anything to address the 810 data meeting to discuss the ADBAC and also noted that two products (3525–90 requirements. Busan 77 DCIs. The Agency proposed and 3525–92) originally listed in the • The Formulator’s Exemption form meeting dates and times in the October 31, 2018 letter had been for EPA Reg. No.: 3525–118 states that November 20, 2018 email. The voluntarily cancelled. the product’s source is EPA Reg. No.
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3525–118, which is stating that the benefits associated with continued connected with the preparation or product is formulated with itself and registration of the affected product, may presentation of the proceeding as an this is neither an adequate nor be considered in the proceeding. The advocate or in any investigative or appropriate response. Administrative Law Judge shall by order expert capacity, or with any of their • Qualco, Inc. chose the option to cite dismiss any objections which have no representatives. Accordingly, the another registrant’s study for product bearing on the allowable issues which following EPA offices, and the staffs specific data for the following products: may be considered in the proceeding. thereof, are designated as judicial staff EPA Reg. Nos.: 3525–22, 3525–78, Section 3(c)(2)(B)(iv) of FIFRA provides to perform the judicial function of EPA 3525–97, 3525–99, 3525–100, 3525–103, that any hearing must be held and a in any administrative hearings on this and 3525–106. However, Qualco did not determination issued within 75 days Notice of Intent to Suspend: The Office provide the appropriate MRID after receipt of a hearing request. This of the Administrative Law Judges, the Accession number(s) or an adequately 75-day period may not be extended Office of the Environmental Appeals completed ‘‘Certification with Respect unless all parties in the proceeding Board, the EPA Administrator, the EPA to Data Compensation Requirements’’ stipulate to such an extension. If a Deputy Administrator, and the members form. The submitted ‘‘Certification with hearing is properly requested, the of the staff in the immediate offices of Respect to Citation of Data’’ forms Agency will issue a final order at the the EPA Administrator and EPA Deputy cannot state ‘‘cite all’’ for PDCIs unless conclusion of the hearing governing the Administrator. None of the persons the ‘‘Certification with Respect to Data suspension of your products. A request designated as the judicial staff shall Compensation’’ form is submitted with for a hearing pursuant to this notice have any ex parte communication with the appropriate MRID Accession must: number(s). • Include specific objections which trial staff or any other interested person Qualco, Inc. has not responded to the pertain to the allowable issues which not employed by EPA on the merits of Agency’s December 5, 2018 email and may be heard at the hearing. any of the issues involved in this has not to-date satisfied the overdue • Identify the registrations for which proceeding, without fully complying PDCI requirements for its affected a hearing is requested. with the applicable regulations. • products. Therefore, this Notice of Set forth all necessary supporting 2. You may also avoid suspension if, Intent to Suspend is being issued for facts pertaining to any of the objections within the applicable 30-day deadline EPA Registration Nos.: 3525–22, 3525– which you have identified in your period as measured from your receipt of 78, 3525–94, 3525–97, 3525–99, 3525– request for a hearing. the Notice of Intent to Suspend by mail 100, 3525–103, 3525–104, 3525–106, If a hearing is requested by any person or publication of this notice, as set forth other than the registrant, that person and 3525–118. in DATES and in Unit IV.1., the Agency must also state specifically why he/she determines that you have taken V. How to avoid suspension under this asserts that he/she would be adversely appropriate steps to comply with the notice? affected by the suspension action 1. You may avoid suspension under described in this notice. Three copies of FIFRA section 3(c)(2)(B) DCI notice. In this notice if you or another person the request must be submitted to: order to avoid suspension under this adversely affected by this notice Hearing Clerk, 1900, Environmental option, you must satisfactorily comply properly request a hearing within 30 Protection Agency, 1200 Pennsylvania with Table 2.—List of Requirements in days of your receipt of the Notice of Ave. NW, Washington, DC 20460–0001. Unit II., for each product by submitting Intent to Suspend by mail or, if you did An additional copy should be sent to all required supporting data/information not receive the notice that was sent to the person who signed this notice. The described in Table 2 of Unit. II. and in you via USPS first class mail return request must be received by the Hearing the Explanatory Appendix (in the receipt requested, then within 30 days Clerk by the applicable 30th day docket for this Federal Register notice) from the date of publication of this deadline as measured from your receipt to the following address (preferably by Federal Register notice (see DATES). If of the Notice of Intent to Suspend by certified mail): you request a hearing, it will be mail or publication of this notice, as set Office of Pesticide Programs, conducted in accordance with the forth in DATES and in Unit IV.1., in order Antimicrobials Division (7510P), requirements of FIFRA section 6(d) (7 to be legally effective. The 30-day time Environmental Protection Agency, 1200 U.S.C. 136d) and the Agency’s limit is established by FIFRA and Pennsylvania Ave. NW, Washington, DC procedural regulations in 40 CFR part cannot be extended for any reason. 20460–0001. 164. Section 3(c)(2)(B) of FIFRA (7 Failure to meet the 30-day time limit U.S.C. 136a), however, provides that the will result in automatic suspension of For you to avoid automatic only allowable issues which may be your registrations by operation of law suspension under this notice, the addressed at the hearing are whether and, under such circumstances, the Agency must also determine within the you have failed to take the actions suspension of the registration for your applicable 30-day deadline period that which are the bases of this notice and affected products will be final and you have satisfied the requirements that whether the Agency’s decision effective at the close of business on the are the bases of this notice and so notify regarding the disposition of existing applicable 30th day deadline as you in writing. You should submit the stocks is consistent with FIFRA. measured from your receipt of the necessary data/information as quickly as Therefore, no substantive allegation or Notice of Intent to Suspend by mail or possible for there to be any chance the legal argument concerning other issues, publication of this notice, as set forth in Agency will be able to make the including but not limited to the DATES and in Unit IV.1., and will not be necessary determination in time to Agency’s original decision to require the subject to further administrative review. avoid suspension of your products. The submission of data or other information, The Agency’s rules of practice at 40 CFR suspension of the registrations of your the need for or utility of any of the 164.7 forbid anyone who may take part company’s products pursuant to this required data or other information or in deciding this case, at any stage of the notice will be rescinded when the deadlines imposed, any allegations of proceeding, from discussing the merits Agency determines you have complied errors or unfairness in any proceedings of the proceeding ex parte with any fully with the requirements which were before an arbitrator, and the risks and party or with any person who has been the bases of this notice. Such
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compliance may only be achieved by Dated: August 19, 2020. continue to provide customer service submission of the data/information Anita Pease, via email, phone, and webform. For described in Table 2 of Unit II. Director, Antimicrobials Division, Office of further information on EPA/DC services, Pesticide Programs. docket contact information and the VI. Status of Products That Become [FR Doc. 2020–19370 Filed 9–1–20; 8:45 am] current status of the EPA/DC and Suspended BILLING CODE 6560–50–P Reading Room, please visit https:// Your product will remain suspended, www.epa.gov/dockets. however, until the Agency determines FOR FURTHER INFORMATION CONTACT: For ENVIRONMENTAL PROTECTION you are in compliance with the pesticide specific information, contact: AGENCY requirements which are the bases of this The Chemical Review Manager for the notice and so informs you in writing. [EPA–HQ–OPP–2017–0750; FRL–10012–60] pesticide of interest identified in the Table in Unit IV. After the suspension becomes final Pesticide Registration Review; For general information on the and effective, the registrants subject to Proposed Interim Decisions for Several registration review program, contact: this notice, including all supplemental Pesticides; Notice of Availability Melanie Biscoe, Pesticide Re-Evaluation registrants of products listed in Table 1 Division (7508P), Office of Pesticide of Unit II., may not legally distribute, AGENCY: Environmental Protection Programs, Environmental Protection sell, use, offer for sale, hold for sale, Agency (EPA). Agency, 1200 Pennsylvania Ave. NW, ship, deliver for shipment, or receive ACTION: Notice. Washington, DC 20460–0001; telephone and (having so received) deliver or offer number: (703) 305–7106; email address: to deliver, to any person, the products SUMMARY: This notice announces the [email protected]. listed in Table 1 of Unit II. Persons other availability of EPA’s proposed interim SUPPLEMENTARY INFORMATION: than the registrants subject to this registration review decisions and opens notice, as defined in the preceding a 60-day public comment period on the I. General Information sentence, may continue to distribute, proposed interim decisions for the A. Does this action apply to me? following pesticides: 1, 4- sell, use, offer for sale, hold for sale, This action is directed to the public ship, deliver for shipment, or receive Dimethylnapthalene and 2,6- Diisopropylnaphthalene, acequinocyl, in general and may be of interest to a and (having so received) deliver or offer wide range of stakeholders including to deliver, to any person, the products Bacillus cereus strain BP01, cypermethrins, dithiopyr, etridiazole, environmental, human health, farm listed in Table 1 of Unit II. Nothing in worker, and agricultural advocates; the this notice authorizes any person to fenamidone, fenbutatin-oxide, fenpropimorph, fenpyroximate, chemical industry; pesticide users; and distribute, sell, use, offer for sale, hold flonicamid, flumetralin, flumioxazin, members of the public interested in the for sale, ship, deliver for shipment, or hypochlorous acid, inorganic halides, sale, distribution, or use of pesticides. receive and (having so received) deliver MCPB, Metarhizium anisopliae, Since others also may be interested, the or offer to deliver, to any person, the metolachlor/S-metolachlor, Pantoea Agency has not attempted to describe all products listed in Table 1 of Unit II. in agglomerans strain C9–1, Pantoea the specific entities that may be affected any manner which would have been agglomerans strain E325, propanil, by this action. If you have any questions unlawful prior to the suspension. terbacil, triclopyr. regarding the applicability of this action to a particular entity, consult the If the registrations for your products, DATES: Comments must be received on Chemical Review Manager for the listed in Table 1 of Unit II., are currently or before November 2, 2020. suspended as a result of failure to pesticide of interest identified in the ADDRESSES: Submit your comments, Table in Unit IV. comply with another FIFRA section identified by the docket identification 3(c)(2)(B) DCI notice or FIFRA Section (ID) number for the specific pesticide of B. What should I consider as I prepare 4 Data Requirements notice, this notice, interest provided in the Table in Unit my comments for EPA? when it becomes a final and effective IV, by one of the following methods: 1. Submitting CBI. Do not submit this order of suspension, will be in addition • Federal eRulemaking Portal: http:// information to EPA through to any existing suspension, i.e., all www.regulations.gov. Follow the online regulations.gov or email. Clearly mark requirements which are the bases of the instructions for submitting comments. the part or all of the information that suspension must be satisfied before the Do not submit electronically any you claim to be CBI. For CBI registration will be reinstated. information you consider to be information on a disk or CD–ROM that It is the responsibility of the basic Confidential Business Information (CBI) you mail to EPA, mark the outside of the registrant to notify all supplementary or other information whose disclosure is disk or CD–ROM as CBI and then registered distributors of a basic restricted by statute. identify electronically within the disk or registered product that this suspension • Mail: OPP Docket, Environmental CD–ROM the specific information that action also applies to their Protection Agency Docket Center (EPA/ is claimed as CBI. In addition to one supplementary registered products. The DC), (28221T), 1200 Pennsylvania Ave. complete version of the comment that basic registrant may be held liable for NW, Washington, DC 20460–0001. includes information claimed as CBI, a violations committed by their • Hand Delivery: To make special copy of the comment that does not distributors. arrangements for hand delivery or contain the information claimed as CBI delivery of boxed information, please Any questions about the requirements must be submitted for inclusion in the follow the instructions at http:// public docket. Information so marked and procedures set forth in this notice www.epa.gov/dockets/contacts.html. will not be disclosed except in or in the subject FIFRA section Please note that due to the public accordance with procedures set forth in 3(c)(2)(B) DCI notice, should be health emergency the EPA Docket 40 CFR part 2. addressed to the person listed under FOR Center (EPA/DC) and Reading Room 2. Tips for preparing your comments. FURTHER INFORMATION CONTACT. was closed to public visitors on March When preparing and submitting your (Authority: 7 U.S.C. 136 et seq.) 31, 2020. Our EPA/DC staff will comments, see the commenting tips at
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http://www.epa.gov/dockets/ including its effects on human health in accordance with widespread and comments.html. and the environment. commonly recognized practice, the II. Background III. Authority pesticide product must perform its intended function without unreasonable Registration review is EPA’s periodic EPA is conducting its registration adverse effects on the environment; that review of pesticide registrations to review of the chemicals listed in the is, without any unreasonable risk to ensure that each pesticide continues to Table in Unit IV pursuant to section 3(g) man or the environment, or a human satisfy the statutory standard for of the Federal Insecticide, Fungicide, dietary risk from residues that result registration, that is, the pesticide can and Rodenticide Act (FIFRA) and the from the use of a pesticide in or on food. perform its intended function without Procedural Regulations for Registration unreasonable adverse effects on human Review at 40 CFR part 155, subpart C. IV. What action is the agency taking? health or the environment. As part of Section 3(g) of FIFRA provides, among the registration review process, the other things, that the registrations of Pursuant to 40 CFR 155.58, this notice Agency has completed proposed interim pesticides are to be reviewed every 15 announces the availability of EPA’s decisions for all pesticides listed in the years. Under FIFRA, a pesticide product proposed interim registration review Table in Unit IV. Through this program, may be registered or remain registered decisions for the pesticides shown in EPA is ensuring that each pesticide’s only if it meets the statutory standard the table below and opens a 60-day registration is based on current for registration given in FIFRA section public comment period on the proposed scientific and other knowledge, 3(c)(5) (7 U.S.C. 136a(c)(5)). When used interim registration review decisions.
Registration review case name and No. Docket ID No. Chemical review manager and contact information
1, 4-Dimethylnapthalene and 2,6- EPA–HQ–OPP–2012–0670 Joseph Mabon, [email protected], (703) 347–0177. Diisopropylnaphthalene, Case Number 6029. Acequinocyl, Case Number 7621 ...... EPA–HQ–OPP–2015–0203 Sergio Santiago, [email protected], (703) 347–8606. Bacillus cereus strain BP01, Case Number 6053 EPA–HQ–OPP–2011–0493 Alexandra Boukedes, [email protected], (703) 347–0305. Cypermethrins, Case Number 2130 ...... EPA–HQ–OPP–2012–0167 Susan Bartow, [email protected], (703) 603–0065. Dithiopyr, Case Number 7225 ...... EPA–HQ–OPP–2013–0750 Veronica Dutch, [email protected], (703) 308–8585. Etridiazole, Case Number 0009 ...... EPA–HQ–OPP–2014–0414 Jonathan Williams, [email protected], (703) 347– 0670. Fenamidone, Case 7033 ...... EPA–HQ–OPP–2014–0048 Christian Bongard, [email protected], (703) 347– 0337. Fenbutatin Oxide, Case Number 0245 ...... EPA–HQ–OPP–2009–0841 Lauren Weissenborn, [email protected], (703) 347– 8601. Fenpropimorph, Case Number 5112 ...... EPA–HQ–OPP–2014–0404 Peter Bergquist, [email protected], (703) 347–8563. Fenpyroximate, Case Number 7432 ...... EPA–HQ–OPP–2014–0572 Carolyn Smith, [email protected], (703) 347–8325. Flonicamid, Case Number 7436 ...... EPA–HQ–OPP–2014–0777 Alexandra Feitel, [email protected], (703) 347–8631. Flumetralin, Case Number 4119 ...... EPA–HQ–OPP–2015–0076 Theodore Varns, [email protected], (703) 347–8589. Flumioxazin, Case Number 7244 ...... EPA–HQ–OPP–2011–0176 Susan Bartow, [email protected], (703) 603–0065. Hypochlorous Acid, Case Number 5090 ...... EPA–HQ–OPP–2020–0244 Jessie Bailey, [email protected], (703) 347–0148. Inorganic Halides, Case Number 4051 ...... EPA–HQ–OPP–2009–0168 Erin Dandridge, [email protected], (703) 347–0185. MCPB, Case Number 2365 ...... EPA–HQ–OPP–2014–0181 Steven R. Peterson, [email protected], (703) 347– 0755. Metarhizium anisopliae, Case Number 6024 ...... EPA–HQ–OPP–2009–0510 Susanne Cerrelli, [email protected], (703) 308–8077. Metolachlor/S-metolachlor, Case Number 0001 EPA–HQ–OPP–2014–0772 Ana Pinto, [email protected], (703) 347–8421. Pantoea agglomerans strain C9–1, Case Num- EPA–HQ–OPP–2017–0172 Bibiana Oe, [email protected], (703) 347–8162. ber 6506. Pantoea agglomerans strain E325, Case Num- EPA–HQ–OPP–2017–0172 Bibiana Oe, [email protected], (703) 347–8162. ber 6507. Propanil, Case Number 0226 ...... EPA–HQ–OPP–2015–0052 Tiffany Green, [email protected], (703) 347–0314. Terbacil, Case Number 0039 ...... EPA–HQ–OPP–2011–0054 Alexandra Feitel, [email protected], (703) 347–8631. Triclopyr, Case Number 2710 ...... EPA–HQ–OPP–2014–0576 Andy Muench, [email protected], (703) 347–8263.
The registration review docket for a interim registration review decisions are comments should be submitted using pesticide includes earlier documents supported by the rationales included in the methods in ADDRESSES and must be related to the registration review case. those documents. Following public received by EPA on or before the closing For example, the review opened with a comment, the Agency will issue interim date. These comments will become part Preliminary Work Plan, for public or final registration review decisions for of the docket for the pesticides included comment. A Final Work Plan was the pesticides listed in Table 1 in Unit in the Tables in Unit IV. Comments placed in the docket following public IV. received after the close of the comment comment on the Preliminary Work Plan. The registration review final rule at 40 period will be marked ‘‘late.’’ EPA is not The documents in the dockets CFR 155.58(a) provides for a minimum required to consider these late describe EPA’s rationales for conducting 60-day public comment period on all comments. additional risk assessments for the proposed interim registration review The Agency will carefully consider all registration review of the pesticides decisions. This comment period is comments received by the closing date included in the tables in Unit IV, as well intended to provide an opportunity for and may provide a ‘‘Response to as the Agency’s subsequent risk findings public input and a mechanism for Comments Memorandum’’ in the and consideration of possible risk initiating any necessary amendments to docket. The interim registration review mitigation measures. These proposed the proposed interim decision. All decision will explain the effect that any
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comments had on the interim decision posted without change to https:// https://www.epa.gov/dockets/ and provide the Agency’s response to www.regulations.gov/, including any commenting-epa-dockets. significant comments. personal information provided. For The EPA is temporarily suspending Background on the registration review detailed instructions on sending its Docket Center and Reading Room for program is provided at: http:// comments and additional information public visitors to reduce the risk of www.epa.gov/pesticide-reevaluation. on the rulemaking process, see the transmitting COVID–19. Written Authority: 7 U.S.C. 136 et seq. ‘‘How do I submit written comments?’’ comments submitted by mail are heading of the SUPPLEMENTARY temporarily suspended and no hand Dated: July 23, 2020. INFORMATION section of this document. deliveries will be accepted. Our Docket Mary Reaves, Out of an abundance of caution for Center staff will continue to provide Acting Director, Pesticide Re-Evaluation members of the public and our staff, the remote customer service via email, Division, Office of Pesticide Programs. EPA Docket Center and Reading Room phone, and webform. We encourage the [FR Doc. 2020–19374 Filed 9–1–20; 8:45 am] are closed to the public, with limited public to submit comments via https:// BILLING CODE 6560–50–P exceptions, to reduce the risk of www.regulations.gov. For further transmitting COVID–19. Our Docket information and updates on EPA Docket Center staff will continue to provide Center services, please visit us online at ENVIRONMENTAL PROTECTION remote customer service via email, https://www.epa.gov/dockets. AGENCY phone, and webform. We encourage the The EPA continues to carefully and [EPA–HQ–OW–2020–0433; FRL–10014–43– public to submit comments via https:// continuously monitor information from OW] www.regulations.gov or email, as there the Centers for Disease Control and may be a temporary delay in processing Prevention (CDC), local area health Proposed Information Collection mail and faxes. Hand deliveries may be departments, and our Federal partners Request; Comment Request; Public received by scheduled appointment so that we can respond rapidly as Notification Requirements for only. For further information on EPA conditions change regarding COVID–19. Combined Sewer Overflows in the Docket Center services and the current II. Executive Summary Great Lakes Basin (Renewal) status, please visit us online at https:// Supporting documents which explain AGENCY: Environmental Protection www.epa.gov/dockets. in detail the information that the EPA Agency (EPA). FOR FURTHER INFORMATION CONTACT: will be collecting are available in the ACTION: Notice. Joshua Baehr, National Program Branch, public docket for this ICR. The docket Water Permits Division, OWM Mail can be viewed online at https:// SUMMARY: The Environmental Protection Code: 4203M, Environmental Protection www.regulations.gov. The telephone Agency (EPA) is planning to submit an Agency, 1201 Constitution Ave. NW, number for the Docket Center is 202– information collection request (ICR), Washington, DC 20460; telephone 566–1744. For additional information ‘‘Public Notification Requirements for number: (202) 564–2277; email address: about EPA’s public docket, visit https:// Combined Sewer Overflows in the Great [email protected]. www.epa.gov/dockets. Lakes Basin (Renewal)’’ (EPA ICR No. Pursuant to section 3506(c)(2)(A) of 2562.02, OMB Control No. 2040–0293) SUPPLEMENTARY INFORMATION: the PRA, EPA is soliciting comments to the Office of Management and Budget I. How do I submit written comments? and information to enable it to: (i) (OMB) for review and approval in Evaluate whether the proposed accordance with the Paperwork Submit your comments, identified by collection of information is necessary Reduction Act (PRA). Before doing so, Docket ID No. EPA–HQ–OW–2020– for the proper performance of the EPA is soliciting public comments on 0433, at https://www.regulations.gov functions of the Agency, including specific aspects of the proposed (our preferred method), or the other whether the information will have information collection. This is a methods identified in the ADDRESSES practical utility; (ii) evaluate the proposed extension of the ICR which is section. Once submitted, comments accuracy of the Agency’s estimate of the currently approved through April 30, cannot be edited or removed from the burden of the proposed collection of 2021. An Agency may not conduct or docket. The EPA may publish any information; (iii) enhance the quality, sponsor and a person is not required to comment received to its public docket. utility, and clarity of the information to respond to a collection of information Do not submit electronically any be collected; and (iv) minimize the unless it displays a currently valid OMB information you consider to be burden of the collection of information control number. Confidential Business Information (CBI) on those who are to respond, including DATES: Comments must be submitted on or other information whose disclosure is through the use of appropriate or before November 2, 2020. restricted by statute. Multimedia automated electronic, mechanical, or ADDRESSES: You may send comments, submissions (audio, video, etc.) must be other technological collection identified by Docket ID No. EPA–HQ– accompanied by a written comment. techniques or other forms of information OW–2020–0433, by any of the following The written comment is considered the technology, e.g., permitting electronic methods: official comment and should include submission of responses. EPA will • Federal eRulemaking Portal: discussion of all points you wish to consider the comments received and https://www.regulations.gov/ (our make. The EPA will generally not amend the ICR as appropriate. The final preferred method). Follow the online consider comments or comment ICR package will then be submitted to instructions for submitting comments. contents located outside of the primary OMB for review and approval. At that • Email: [email protected]. submission (i.e. on the web, cloud, or time, EPA will issue another Federal Include Docket ID No. EPA–HQ–OW– other file sharing system). For Register notice to announce the 2020–0433 in the subject line of the additional submission methods, the full submission of the ICR to OMB and the message. EPA public comment policy, opportunity to submit additional Instructions: All submissions received information about CBI or multimedia comments to OMB. must include the Docket ID No. for this submissions, and general guidance on Abstract: This ICR calculates the rulemaking. Comments received may be making effective comments, please visit incremental increase in burden and
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costs associated with implementation of hours since the prior approved ICR. The ACTION: Notice, regular meeting. the Combined Sewer Overflow (CSO) decrease in labor hours from the prior public notification requirements for ICR is due to the completion of startup SUMMARY: Notice is hereby given, CSO permittees in the Great Lakes Basin activities performed during the first year pursuant to the Government in the approved during the Public Notice of the prior ICR. Also, one permittee Sunshine Act, of the forthcoming Requirements for Combined Sewer (Woodville, Ohio NPDES Permit No. regular meeting of the Farm Credit Overflow Discharges to the Great Lakes OH0020591) separated the city’s Administration Board. rulemaking. In 2018 EPA established combined sewer system and therefore, is public notification requirements for no longer within the scope of the rule DATES: The regular meeting of the Board permittees authorized to discharge from and this updated ICR. There was an will be held September 10, 2020, from a CSO to the Great Lakes Basin [82 FR increase in labor costs ($31,841) due to 9:00 a.m. until such time as the Board 4233]. These requirements address: 1. a projected increase in labor base wages may conclude its business. Note: Signage; 2. notification to local public and total compensation (i.e., benefits). Because of the COVID–19 pandemic, we health department and other potentially There was a decrease in non-labor costs will conduct the board meeting affected public entities; 3. notification to ($65,039) due to a decrease in capital virtually. If you would like to observe the public; and 4. annual notice. costs after the initial startup period the open portion of the virtual meeting, Additionally, permittees are required to during the first year of the prior ICR. see instructions below for board meeting develop a public notification plan and Overall, total burden hours decreased by visitors. seek and consider input on these plans 1,607 hours and total burden cost Attendance: To observe the open from local public health departments decreased by $31,048 for the three-year portion of the virtual meeting, go to and other potentially affected public period. FCA.gov, select ‘‘Newsroom,’’ then entities. The public notification plans Dated: August 27, 2020. ‘‘Events.’’ There you will find a also provide state permit writers with description of the meeting and a link to Andrew D. Sawyers, detailed information needed to write ‘‘Instructions for board meeting Director, Office of Wastewater Management. permit conditions. The rule protects visitors.’’ See SUPPLEMENTARY public health by ensuring timely [FR Doc. 2020–19350 Filed 9–1–20; 8:45 am] INFORMATION for further information notification to the public and to public BILLING CODE 6560–50–P about attendance requests. health departments, public drinking water facilities and other potentially FOR FURTHER INFORMATION CONTACT: Dale affected public entities, including EXPORT-IMPORT BANK Aultman, Secretary to the Farm Credit Indian tribes. It provides additional Administration Board (703) 883–4009. specificity beyond existing public Sunshine Act Meetings; Notice of an TTY is (703) 883–4056. Open Meeting of the Board of Directors notification requirements to ensure SUPPLEMENTARY INFORMATION: Parts of timely and consistent communication to of the Export-Import Bank of the this meeting of the Board will be open the public regarding CSO discharges to United States to the public, and parts will be closed. the Great Lakes Basin. Timely notice TIME AND DATE: Wednesday, September If you wish to observe the open part, may allow the public and affected 9, 2020 at 10:00 a.m. follow the instructions above in the public entities to take steps to reduce ‘‘Attendance’’ section at least 24 hours PLACE: The meeting will be held via the public’s potential exposure to before the meeting. If you need teleconference. pathogens associated with human assistance for accessibility reasons or if sewage, which can cause a wide variety STATUS: The meeting will be open to you have any questions, contact Dale of health effects, including public observation by teleconference Aultman, Secretary to the Farm Credit gastrointestinal, skin, ear, respiratory, only. Administration Board, at (703) 883– eye, neurologic, and wound infections. MATTERS TO BE CONSIDERED: 4009. The matters to be considered at Form Numbers: None. 1. Appointment of EXIM Advisory the meeting are as follows: Respondents/affected entities: CSO Committee for 2020; permittees, Great Lakes States (Illinois, 2. Appointment of EXIM Sub-Saharan Open Session Indiana, Michigan, New York, Ohio, Africa Advisory Committee for 2020. A. Approval of Minutes Pennsylvania, and Wisconsin). CONTACT PERSON FOR MORE INFORMATION: Respondent’s obligation to respond: Joyce Stone at [email protected] or • August 13, 2020 Mandatory. 40 CFR 122.38. 202–257–4086. Members of the public B. Reports Estimated number of respondents: who wish to attend the meeting should 164 (157 permittees and 7 States). use the following link: https:// • Frequency of response: Responses Quarterly Report on Economic attendee.gotowebinar.com/register/ include one-time implementation Conditions and FCS Condition and 8697049424026680843. Individuals will activities, such as signage, activities that Performance be given call-in information. occur once per year, such as providing Closed Session annual notice, and initial and follow-up Joyce B. Stone, activities that would occur during and Assistant Corporate Secretary. • Office of Examination Quarterly 1 after CSO discharge events. [FR Doc. 2020–19458 Filed 8–31–20; 11:15 am] Report Total estimated burden: 8,694 hours BILLING CODE 6690–01–P Dated: August 28, 2020. (per year). Burden is defined at 5 CFR 1320.03(b). Dale Aultman, Total estimated cost: $426,059 (per Secretary, Farm Credit Administration Board. FARM CREDIT ADMINISTRATION year), includes $5,412 in annualized [FR Doc. 2020–19494 Filed 8–31–20; 11:15 am] capital or operation & maintenance Sunshine Act Meeting; Farm Credit BILLING CODE 6705–01–P costs. Administration Board Changes in Estimates: There is an 1 Session Closed-Exempt pursuant to 5 U.S.C. estimated net decrease of 1,607 burden AGENCY: Farm Credit Administration. 552b(c)(8) and (9).
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FEDERAL COMMUNICATIONS required by the PRA of 1995 (44 U.S.C. and every 800 MHz public safety COMMISSION 3501–3520), the FCC invites the general licensee within 113 kilometers (70 public and other Federal agencies to miles) of the affected region. [OMB 3060–1170; FRS 17042] take this opportunity to comment on the Federal Communications Commission. Information Collection Being Reviewed following information collections. Marlene Dortch, by the Federal Communications Comments are requested concerning: Secretary. Whether the proposed collection of Commission Under Delegated [FR Doc. 2020–19365 Filed 9–1–20; 8:45 am] Authority information is necessary for the proper performance of the functions of the BILLING CODE 6712–01–P AGENCY: Federal Communications Commission, including whether the Commission. information shall have practical utility; FEDERAL COMMUNICATIONS ACTION: Notice and request for the accuracy of the Commission’s COMMISSION comments. burden estimate; ways to enhance the quality, utility, and clarity of the [OMB 3060–0264; FRS 17041] SUMMARY: As part of its continuing effort information collected; ways to minimize to reduce paperwork burdens, and as the burden of the collection of Information Collection Being Reviewed required by the Paperwork Reduction information on the respondents, by the Federal Communications Act (PRA), the Federal Communications including the use of automated Commission Under Delegated Commission (FCC or Commission) collection techniques or other forms of Authority invites the general public and other information technology; and ways to AGENCY: Federal Communications Federal agencies to take this further reduce the information Commission. opportunity to comment on the collection burden on small business following information collections. ACTION: Notice and request for concerns with fewer than 25 employees. comments. Comments are requested concerning: OMB Control Number: 3060–1170. Whether the proposed collection of Title: Improving Spectrum Efficiency SUMMARY: As part of its continuing effort information is necessary for the proper Through Flexible Channel Spacing and to reduce paperwork burdens, and as performance of the functions of the Bandwidth Utilization for Economic required by the Paperwork Reduction Commission, including whether the Area-based 800 MHz Specialized Mobile Act (PRA), the Federal Communications information shall have practical utility; Radio Licensees—Notice Requirement Commission (FCC or Commission) the accuracy of the Commission’s Section 90.209. invites the general public and other burden estimate; ways to enhance the Form Number: N/A. Federal agencies to take this quality, utility, and clarity of the Type of Review: Extension of a opportunity to comment on the information collected; ways to minimize currently approved collection. following information collections. the burden of the collection of Respondents: Business or other for- Comments are requested concerning: information on the respondents, profit entities. Whether the proposed collection of including the use of automated Number of Respondents and information is necessary for the proper collection techniques or other forms of Responses: 24 respondents; 24 performance of the functions of the information technology; and ways to responses. Commission, including whether the further reduce the information Estimated Time per Response: 0.5–4 information shall have practical utility; collection burden on small business hours. the accuracy of the Commission’s concerns with fewer than 25 employees. Frequency of Response: On occasion burden estimate; ways to enhance the DATES: Written comments should be reporting requirement, third party quality, utility, and clarity of the submitted on or before November 2, disclosure requirement. information collected; ways to minimize 2020. If you anticipate that you will be Obligation to Respond: Required to the burden of the collection of submitting comments, but find it obtain or retain benefits. Statutory information on the respondents, difficult to do so within the period of authority for this information collection including the use of automated time allowed by this notice, you should is 47 U.S.C. 151, 152, 154, 301, 302(a), collection techniques or other forms of advise the contacts below as soon as 303, 307, and 308 unless otherwise information technology; and ways to possible. noted. further reduce the information Total Annual Burden: 20 hours. collection burden on small business ADDRESSES: Direct all PRA comments to Total Annual Cost: $46,000. concerns with fewer than 25 employees. Cathy Williams, FCC, via email PRA@ Privacy Impact Assessment: No fcc.gov and to [email protected]. DATES: Written comments should be impact(s). submitted on or before November 2, FOR FURTHER INFORMATION CONTACT: For Nature and Extent of Confidentiality: 2020. If you anticipate that you will be additional information about the There is no need for confidentiality with submitting comments, but find it information collection, contact Cathy this collection of information. difficult to do so within the period of Williams at (202) 418–2918. Needs and Uses: The information time allowed by this notice, you should SUPPLEMENTARY INFORMATION: The FCC collection requirements contained in 47 advise the contacts below as soon as may not conduct or sponsor a collection CFR 90.209(b)(7) require EA-based 800 possible. of information unless it displays a MHz SMR licensees authorized to currently valid Office of Management exceed the standard channel spacing ADDRESSES: Direct all PRA comments to and Budget (OMB) control number. No and authorized bandwidth under Cathy Williams, FCC, via email PRA@ person shall be subject to any penalty Section 90.209(b)(5) to provide at least fcc.gov and to [email protected]. for failing to comply with a collection 30 days written notice prior to initiating FOR FURTHER INFORMATION CONTACT: For of information subject to the PRA that service in the 813.5–824/858.5–869 additional information about the does not display a valid OMB control MHz band to every 800 MHz public information collection, contact Cathy number. safety licensee with a base station in the Williams at (202) 418–2918. As part of its continuing effort to affected National Public Safety Planning SUPPLEMENTARY INFORMATION: The FCC reduce paperwork burdens, and as Advisory Committee (NPSPAC) region, may not conduct or sponsor a collection
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of information unless it displays a 80.413 require the licensee of an on- number in the subject line of the currently valid Office of Management board station to keep equipment records message. and Budget (OMB) control number. No which show: • Fax: (202) 452–3819 or (202) 452– person shall be subject to any penalty (1) The ship name and identification 3102. for failing to comply with a collection of the on-board station; • Mail: Ann E. Misback, Secretary, of information subject to the PRA that (2) The number of and type of Board of Governors of the Federal does not display a valid OMB control repeater and mobile units used on-board Reserve System, 20th Street and number. the vessel; and Constitution Avenue NW, Washington, As part of its continuing effort to (3) The date the type of equipment DC 20551. reduce paperwork burdens, and as which is added or removed from the on- All public comments are available required by the PRA of 1995 (44 U.S.C. board station. from the Board’s website at https:// 3501–3520), the FCC invites the general The information is used by FCC www.federalreserve.gov/apps/foia/ public and other Federal agencies to personnel during inspections and proposedregs.aspx as submitted, unless take this opportunity to comment on the investigations to determine what mobile modified for technical reasons or to following information collections. units and repeaters are associated with remove personally identifiable Comments are requested concerning: on-board stations aboard a particular information at the commenter’s request. Whether the proposed collection of vessel. If this information were not Accordingly, comments will not be information is necessary for the proper maintained, no means would be edited to remove any identifying or performance of the functions of the available to determine if this type of contact information. Public comments Commission, including whether the radio equipment is authorized or who is may also be viewed electronically or in information shall have practical utility; responsible for its operation. paper in Room 146, 1709 New York the accuracy of the Commission’s Enforcement and frequency Avenue NW, Washington, DC 20006, burden estimate; ways to enhance the management programs would be between 9:00 a.m. and 5:00 p.m. on quality, utility, and clarity of the negatively affected if the information weekdays. For security reasons, the information collected; ways to minimize were not retained. Board requires that visitors make an the burden of the collection of Federal Communications Commission. appointment to inspect comments. You information on the respondents, Marlene Dortch, may do so by calling (202) 452–3684. including the use of automated Upon arrival, visitors will be required to Secretary. collection techniques or other forms of present valid government-issued photo information technology; and ways to [FR Doc. 2020–19363 Filed 9–1–20; 8:45 am] identification and to submit to security further reduce the information BILLING CODE 6712–01–P screening in order to inspect and collection burden on small business photocopy comments. concerns with fewer than 25 employees. Additionally, commenters may send a OMB Control Number: 3060–0264. FEDERAL RESERVE SYSTEM copy of their comments to the Office of Title: Section 80.413, On-Board Management and Budget (OMB) Desk Station Equipment Records. Proposed Agency Information Officer—Shagufta Ahmed—Office of Form Number: N/A. Collection Activities; Comment Information and Regulatory Affairs, Type of Review: Extension of a Request currently approved collection. Office of Management and Budget, New Respondents: Business or other for- AGENCY: Board of Governors of the Executive Office Building, Room 10235, profit entities, not-for-profit institutions, Federal Reserve System. 725 17th Street NW, Washington, DC and state, local or tribal government. ACTION: Notice, request for comment. 20503, or by fax to (202) 395–6974. Number of Respondents: 1,000 FOR FURTHER INFORMATION CONTACT: A respondents; 1,000 responses. SUMMARY: The Board of Governors of the copy of the Paperwork Reduction Act Estimated Time per Response: 2 Federal Reserve System (Board) invites (PRA) OMB submission, including the hours. comment on a proposal to extend for reporting form and instructions, Frequency of Response: three years, with revision, the Reports of supporting statement, and other Recordkeeping requirement. Deposits: Report of Transaction documentation will be placed into Obligation to Respond: Required to Accounts, Other Deposits, and Vault OMB’s public docket files, if approved. obtain or retain benefits. Statutory Cash; Annual Report of Deposits and These documents will also be made authority for this information collection Reservable Liabilities; Report of Foreign available on the Board’s public website is contained in 47 U.S.C. 154, 303, (Non-U.S.) Currency Deposits; and at https://www.federalreserve.gov/apps/ 307(e), 309 and 332 and 151–155 and Allocation of Low Reserve Tranche and reportforms/review.aspx or may be sections 301–609 of the Reservable Liabilities Exemption (FR requested from the agency clearance Communications Act of 1934, as 2900, FR 2910a, FR 2915, FR 2930; OMB officer, whose name appears below. amended. No. 7100–0087). Federal Reserve Board Clearance Total Annual Burden: 2,000 hours. DATES: Comments must be submitted on Officer—Nuha Elmaghrabi—Office of Total Annual Cost: No cost. the Chief Data Officer, Board of Privacy Impact Assessment: No or before November 2, 2020. Governors of the Federal Reserve impact(s). ADDRESSES: You may submit comments, Nature and Extent of Confidentiality: identified by FR 2900; FR 2910a; FR System, Washington, DC 20551, (202) There is no need for confidentiality. 2915; and FR 2930, by any of the 452–3829. Needs and Uses: The Commission is following methods: SUPPLEMENTARY INFORMATION: On June seeking an extension of this expiring • Agency website: https:// 15, 1984, OMB delegated to the Board information collection in order to obtain www.federalreserve.gov/. Follow the authority under the PRA to approve and the full three-year approval from OMB. instructions for submitting comments at assign OMB control numbers to There is no change to the recordkeeping https://www.federalreserve.gov/apps/ collections of information conducted or requirement. foia/proposedregs.aspx. sponsored by the Board. In exercising The information collection • Email: regs.comments@ this delegated authority, the Board is requirements contained in Section federalreserve.gov. Include the OMB directed to take every reasonable step to
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solicit comment. In determining (Quarterly): 0; FR 2910a: 0; FR 2915: (except that aggregate data, which does whether to approve a collection of 232; and FR 2930: 0. not identify any individual institution, information, the Board will consider all General description of report: Data may be disclosed). Accordingly, the data comments received from the public and from these mandatory reports are used collected on these reports is considered other agencies. by the Board for administering reserve confidential pursuant to exemption 4 of requirements and for constructing, the Freedom of Information Act, which Request for Comment on Information analyzing, and monitoring the monetary protects confidential commercial or Collection Proposal aggregates. The FR 2900 is the primary financial information from public The Board invites public comment on source of data for the construction and disclosure. the following information collection, analysis of the monetary aggregates and Board of Governors of the Federal Reserve which is being reviewed under was used for the calculation of required System, August 27, 2020. authority delegated by the OMB under reserves and applied vault cash. The FR Michele Taylor Fennell, the PRA. Comments are invited on the 2910a report has been a key data source Assistant Secretary of the Board. following: for determining which depository a. Whether the proposed collection of institutions need to file the FR 2900. FR [FR Doc. 2020–19335 Filed 9–1–20; 8:45 am] information is necessary for the proper 2900 respondents that offer deposits BILLING CODE 6210–01–P performance of the Board’s functions, denominated in foreign currencies at including whether the information has their U.S. offices file the FR 2915. FEDERAL RESERVE SYSTEM practical utility; Foreign currency deposits are subject to b. The accuracy of the Board’s reserve requirements and, therefore, are Formations of, Acquisitions by, and estimate of the burden of the proposed included in the FR 2900 data. However, Mergers of Bank Holding Companies information collection, including the because foreign currency deposits are validity of the methodology and not included in the monetary aggregates, The companies listed in this notice assumptions used; the FR 2915 data are used to net foreign have applied to the Board for approval, c. Ways to enhance the quality, currency-denominated deposits from pursuant to the Bank Holding Company utility, and clarity of the information to the FR 2900 data to exclude them from Act of 1956 (12 U.S.C. 1841 et seq.) be collected; measures of the monetary aggregates. (BHC Act), Regulation Y (12 CFR part d. Ways to minimize the burden of The FR 2930 data are used in the 225), and all other applicable statutes information collection on respondents, calculation of reserve requirements; and regulations to become a bank including through the use of automated typically, depository institutions file holding company and/or to acquire the collection techniques or other forms of this report after being informed of assets or the ownership of, control of, or information technology; and updates to key reserve requirement the power to vote shares of a bank or e. Estimates of capital or startup costs thresholds toward the end of each bank holding company and all of the and costs of operation, maintenance, calendar year or upon the establishment banks and nonbanking companies and purchase of services to provide of an office outside the home state or owned by the bank holding company, information. Federal Reserve District. including the companies listed below. At the end of the comment period, the Proposed revisions: The Board The public portions of the comments and recommendations proposes to take steps to reduce applications listed below, as well as received will be analyzed to determine reporting burden associated with other related filings required by the the extent to which the Board should reserve requirements by discontinuing Board, if any, are available for modify the proposal. the collection of the FR 2910a and FR immediate inspection at the Federal Proposal under OMB Delegated 2930, ceasing the quarterly collection of Reserve Bank(s) indicated below and at Authority to Extend for Three Years, the FR 2900, and refocusing items on the offices of the Board of Governors. With Revision, the Following the weekly collection of the FR 2900 This information may also be obtained Information Collection and the FR 2915 to those that support on an expedited basis, upon request, by Report title: Reports of Deposits: the construction and analysis of the contacting the appropriate Federal Report of Transaction Accounts, Other monetary aggregates. Reserve Bank and from the Board’s Deposits, and Vault Cash; Annual Legal authorization and Freedom of Information Office at confidentiality: The FR 2900 report and Report of Deposits and Reservable https://www.federalreserve.gov/foia/ the FR 2915 report are authorized to be Liabilities; Report of Foreign (Non-U.S.) request.htm. Interested persons may collected from depository institutions Currency Deposits; and Allocation of express their views in writing on the (commercial banks, credit unions, and Low Reserve Tranche and Reservable standards enumerated in the BHC Act savings and loan associations) pursuant Liabilities Exemption. (12 U.S.C. 1842(c)). Agency form number: FR 2900; FR to section 11(a)(2) of the Federal Reserve Comments regarding each of these 2910a; FR 2915; and FR 2930. Act (FRA); from agreement corporations applications must be received at the OMB control number: 7100–0087. pursuant to section 25(5) and (7) of the Reserve Bank(s) indicated or the offices Frequency: Weekly, quarterly, FRA and section 604a of the FRA; from of the Board of Governors, Ann E. annually, and on occasion. banking Edge corporations pursuant to Misback, Secretary of the Board, 20th Respondents: Depository institutions. section 25A(17) of the FRA; and from Street and Constitution Avenue NW, Estimated number of respondents: FR branches and agencies of foreign banks Washington, DC 20551–0001, not later 2900 (Weekly): 1,000; FR 2900 pursuant to section 7 of the than October 2, 2020. (Quarterly): 0; FR 2910a: 0; FR 2915: International Banking Act. The FR 2900 A. Federal Reserve Bank of Chicago 116; and FR 2930: 0. and FR 2915 are mandatory. (Colette A. Fried, Assistant Vice Estimated average hours per response: The data collected under the FR 2900 President) 230 South LaSalle Street, FR 2900 (Weekly): 1.0; FR 2900 is considered confidential commercial Chicago, Illinois 60690–1414: (Quarterly): 0; FR 2910a: 0; FR 2915: 0.5; and financial information, and 1. AgCom Holdings, Inc., Holstein, and FR 2930: 0. respondents are assured that the data Iowa; to become a bank holding Estimated annual burden hours: FR being collected will be treated as company by acquiring Maxwell State 2900 (Weekly): 52,000; FR 2900 confidential by the Federal Reserve Bank, Maxwell, Iowa.
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Board of Governors of the Federal Reserve 355(j)(7)), which requires FDA to After considering the citizen petition System, August 28, 2020. publish a list of all approved drugs. and reviewing Agency records and Yao-Chin Chao, FDA publishes this list as part of the based on the information we have at this Assistant Secretary of the Board. ‘‘Approved Drug Products With time, FDA has determined under [FR Doc. 2020–19405 Filed 9–1–20; 8:45 am] Therapeutic Equivalence Evaluations,’’ § 314.161 that MICRO-K LS (potassium BILLING CODE P which is known generally as the chloride) extended-release liquid ‘‘Orange Book.’’ Under FDA regulations, suspension, 20 mEq/packet, was not drugs are removed from the list if the withdrawn for reasons of safety or DEPARTMENT OF HEALTH AND Agency withdraws or suspends effectiveness. The petitioner has HUMAN SERVICES approval of the drug’s NDA or ANDA identified no data or other information for reasons of safety or effectiveness or suggesting that MICRO-K LS (potassium Food and Drug Administration if FDA determines that the listed drug chloride) extended-release liquid was withdrawn from sale for reasons of [Docket No. FDA–2020–P–0438] suspension, 20 mEq/packet, was safety or effectiveness (21 CFR 314.162). withdrawn for reasons of safety or A person may petition the Agency to Determination That MICRO-K LS effectiveness. We have carefully (Potassium Chloride) Extended- determine, or the Agency may determine on its own initiative, whether reviewed our files for records Release Liquid Suspension, 20 concerning the withdrawal of MICRO-K Milliequivalents/Packet, Was Not a listed drug was withdrawn from sale for reasons of safety or effectiveness. LS (potassium chloride) extended- Withdrawn From Sale for Reasons of release liquid suspension, 20 mEq/ Safety or Effectiveness This determination may be made at any time after the drug has been withdrawn packet, from sale. We have also AGENCY: Food and Drug Administration, from sale, but must be made prior to independently evaluated relevant HHS. approving an ANDA that refers to the literature and data for possible ACTION: Notice. listed drug (§ 314.161 (21 CFR 314.161)). postmarketing adverse events. We have FDA may not approve an ANDA that found no information that would SUMMARY: The Food and Drug does not refer to a listed drug. indicate that this drug product was Administration (FDA or Agency) has MICRO-K LS (potassium chloride) withdrawn from sale for reasons of determined that MICRO-K LS extended-release liquid suspension, 20 safety or effectiveness. (potassium chloride) extended-release mEq/packet, is the subject of NDA Accordingly, the Agency will liquid suspension, 20 milliequivalents 019561, held by KV Pharmaceutical Co., (mEq)/packet, was not withdrawn from continue to list MICRO-K LS (potassium and initially approved on August 26, chloride) extended-release liquid sale for reasons of safety or 1988. MICRO-K LS is indicated for the effectiveness. This determination will suspension, 20 mEq/packet, in the treatment of patients with hypokalemia, ‘‘Discontinued Drug Product List’’ allow FDA to approve abbreviated new with or without metabolic alkalosis; in section of the Orange Book. The drug applications (ANDAs) for MICRO- digitalis intoxication; and in patients ‘‘Discontinued Drug Product List’’ K LS (potassium chloride) extended- with hypokalemic familial periodic release liquid suspension, 20 mEq/ paralysis. MICRO-K LS is also indicated delineates, among other items, drug packet, if all other legal and regulatory for the prevention of hypokalemia in products that have been discontinued requirements are met. patients who would be at particular risk from marketing for reasons other than FOR FURTHER INFORMATION CONTACT: if hypokalemia were to develop, e.g., safety or effectiveness. ANDAs that refer Sungjoon Chi, Center for Drug digitalized patients or patients with to MICRO-K LS (potassium chloride) Evaluation and Research, Food and significant cardiac arrhythmias, hepatic extended-release liquid suspension, 20 Drug Administration, 10903 New cirrhosis with ascites, states of mEq/packet, may be approved by the Hampshire Ave., Bldg. 51, Rm. 6216, aldosterone excess with normal renal Agency as long as they meet all other Silver Spring, MD 20993–0002, 240– function, potassium losing nephropathy, legal and regulatory requirements for 402–9674, [email protected]. and certain diarrheal states. the approval of ANDAs. If FDA SUPPLEMENTARY INFORMATION: In 1984, In a letter dated October 8, 2010, KV determines that labeling for this drug Congress enacted the Drug Price Pharmaceutical Co. notified FDA that product should be revised to meet Competition and Patent Term MICRO-K LS (potassium chloride) current standards, the Agency will Restoration Act of 1984 (Pub. L. 98–417) extended-release liquid suspension, 20 advise ANDA applicants to submit such (the 1984 amendments), which mEq/packet, was being discontinued, labeling. and FDA moved the drug product to the authorized the approval of duplicate Dated: August 27, 2020. versions of drug products under an ‘‘Discontinued Drug Product List’’ ANDA procedure. ANDA applicants section of the Orange Book. In the Lowell J. Schiller, must, with certain exceptions, show that Federal Register of June 8, 2011 (76 FR Principal Associate Commissioner for Policy. the drug for which they are seeking 33310), FDA announced that it was [FR Doc. 2020–19369 Filed 9–1–20; 8:45 am] approval contains the same active withdrawing approval of NDA 019561, BILLING CODE 4164–01–P ingredient in the same strength and effective July 8, 2011. dosage form as the ‘‘listed drug,’’ which Hyman, Phelps, and McNamara, P.C. is a version of the drug that was submitted a citizen petition dated previously approved. ANDA applicants January 27, 2020 (Docket No. FDA– do not have to repeat the extensive 2020–P–0438), under 21 CFR 10.30, clinical testing otherwise necessary to requesting that the Agency determine gain approval of a new drug application whether MICRO-K LS (potassium (NDA). chloride) extended-release liquid The 1984 amendments include what suspension, 20 mEq/packet, was is now section 505(j)(7) of the Federal withdrawn from sale for reasons of Food, Drug, and Cosmetic Act (21 U.S.C. safety or effectiveness.
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DEPARTMENT OF HEALTH AND comment will be made public, you are viewing and posted on https:// HUMAN SERVICES solely responsible for ensuring that your www.regulations.gov. Submit both comment does not include any copies to the Dockets Management Staff. Food and Drug Administration confidential information that you or a If you do not wish your name and [Docket No. FDA–2020–N–1153] third party may not wish to be posted, contact information to be made publicly such as medical information, your or available, you can provide this Post-Marketing Pediatric-Focused anyone else’s Social Security number, or information on the cover sheet and not Product Safety Reviews; confidential business information, such in the body of your comments and you Establishment of a Public Docket; as a manufacturing process. Please note must identify this information as Request for Comments that if you include your name, contact ‘‘confidential.’’ Any information marked information, or other information that as ‘‘confidential’’ will not be disclosed AGENCY: Food and Drug Administration, identifies you in the body of your except in accordance with 21 CFR 10.20 HHS. comments, that information will be and other applicable disclosure law. For ACTION: Notice; establishment of a posted on https://www.regulations.gov. more information about FDA’s posting public docket; request for comments. • If you want to submit a comment of comments to public dockets, see 80 with confidential information that you FR 56469, September 18, 2015, or access SUMMARY: The Food and Drug do not wish to make available to the the information at: https:// Administration (FDA) is establishing a public, submit the comment as a www.govinfo.gov/content/pkg/FR-2015- public docket to collect comments written/paper submission and in the 09-18/pdf/2015-23389.pdf. related to the post-marketing pediatric- manner detailed (see ‘‘Written/Paper Docket: For access to the docket to focused safety reviews of products Submissions’’ and ‘‘Instructions’’). read background documents or the posted between September 23, 2019, Written/Paper Submissions electronic and written/paper comments and September 1, 2020, on FDA’s received, go to https:// website but not presented at the Submit written/paper submissions as www.regulations.gov and insert the September 15, 2020, Pediatric Advisory follows: docket number, found in brackets in the • Mail/Hand Delivery/Courier (for Committee (PAC) meeting. These heading of this document, into the written/paper submissions): Dockets reviews are intended to be available for ‘‘Search’’ box and follow the prompts Management Staff (HFA–305), Food and review and comment by members of the and/or go to the Dockets Management Drug Administration, 5630 Fishers PAC, interested parties (such as Staff, 5630 Fishers Lane, Rm. 1061, academic researchers, regulated Lane, Rm. 1061, Rockville, MD 20852. • For written/paper comments Rockville, MD 20852, 240–402–7500. industries, consortia, and patient FOR FURTHER INFORMATION CONTACT: groups), and the general public. submitted to the Dockets Management Staff, FDA will post your comment, as Marieann Brill, Office of the DATES: Submit either electronic or well as any attachments, except for Commissioner, Food and Drug written comments by September 22, information submitted, marked and Administration, 10903 New Hampshire 2020. identified, as confidential, if submitted Ave., Bldg. 32, Rm. 5154, Silver Spring, ADDRESSES: FDA is establishing a docket as detailed in ‘‘Instructions.’’ MD 20993, 240–402–3838, for public comment on this document. Instructions: All submissions received [email protected]. The docket number is FDA–2020–N– must include the Docket No. FDA– SUPPLEMENTARY INFORMATION: FDA is 1153. The docket will close on 2020–N–1153 for ‘‘Post-Marketing responsible for protecting the public September 22, 2020. Submit either Pediatric-Focused Product Safety health by assuring the safety, efficacy, electronic or written comments by that Reviews; Establishment of a Public and security of human and veterinary date. Please note that late, untimely Docket; Request for Comments.’’ drugs, biological products, medical comments will not be considered. Received comments, those filed in a devices, our Nation’s food supply, Electronic comments must be submitted timely manner (see ADDRESSES), will be cosmetics, and products that emit on or before September 22, 2020. The placed in the docket and, except for radiation. FDA also has responsibility https://www.regulations.gov electronic those submitted as ‘‘Confidential for regulating the manufacturing, filing system will accept comments Submissions,’’ publicly viewable at marketing, and distribution of tobacco until 11:59 p.m. Eastern Time at the end https://www.regulations.gov or at the products to protect the public health of September 22, 2020. Comments Dockets Management Staff between 9 and to reduce tobacco use by minors. received by mail/hand delivery/courier a.m. and 4 p.m., Monday through FDA is establishing a public docket, (for written/paper submissions) will be Friday, 240–402–7500. Docket No. FDA–2020–N–1153, to considered timely if they are • Confidential Submissions—To receive input on post-marketing postmarked or the delivery service submit a comment with confidential pediatric-focused safety reviews of acceptance receipt is on or before that information that you do not wish to be products posted between September 23, date. made publicly available, submit your 2019, and September 1, 2020, available You may submit comments as comments only as a written/paper on FDA’s website at https:// follows: submission. You should submit two www.fda.gov/AdvisoryCommittees/ copies total. One copy will include the CommitteesMeetingMaterials/ Electronic Submissions information you claim to be confidential PediatricAdvisoryCommittee/ Submit electronic comments in the with a heading or cover note that states ucm510701.htm but not presented at the following way: ‘‘THIS DOCUMENT CONTAINS September 15, 2020, PAC meeting. FDA • Federal eRulemaking Portal: CONFIDENTIAL INFORMATION.’’ FDA welcomes comments by members of the https://www.regulations.gov. Follow the will review this copy, including the PAC, as mandated by the Best instructions for submitting comments. claimed confidential information, in its Pharmaceuticals for Children Act (Pub. Comments submitted electronically, consideration of comments. The second L. 107–109) and the Pediatric Research including attachments, to https:// copy, which will have the claimed Equity Act of 2003 (Pub. L. 108–155), www.regulations.gov will be posted to confidential information redacted/ interested parties (such as academic the docket unchanged. Because your blacked out, will be available for public researchers, regulated industries,
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consortia, and patient groups), and the 3. ENTERRA THERAPY SYSTEM (HDE) On page 28951, in the table, the entry general public. The docket number is 4. LIPOSORBER LA–15 SYSTEM (HDE) for NDA 050641 is removed. FDA–2020–N–1153. The docket will 5. MEDTRONIC ACTIVA DYSTONIA Dated: August 27, 2020. open on September 1, 2020, and remain THERAPY (HDE) Lowell J. Schiller, open until September 22, 2020. The 6. PLEXIMMUNE IN–VITRO Principal Associate Commissioner for Policy. post-marketing pediatric-focused safety DIAGNOSTIC TEST (HDE) reviews are for the following products 7. PULSERIDER ANEURYSM NECK [FR Doc. 2020–19364 Filed 9–1–20; 8:45 am] from the following Centers at FDA: RECONSTRUCTION DEVICE (HDE) BILLING CODE 4164–01–P Center for Biologics Evaluation and Dated: August 28, 2020. Research Lowell J. Schiller, DEPARTMENT OF HEALTH AND 1. AFSTYLA (antihemophilic factor Principal Associate Commissioner for Policy. HUMAN SERVICES [FR Doc. 2020–19385 Filed 9–1–20; 8:45 am] (recombinant), single chain) Office of the Secretary 2. EPICEL (cultured epidermal BILLING CODE 4164–01–P autografts) Statement of Organization, Functions, 3. FLUCELVAX QUADRIVALENT and Delegations of Authority (influenza vaccine) DEPARTMENT OF HEALTH AND 4. FLUCELVAX (influenza vaccine) HUMAN SERVICES August 27, 2020. 5. FLULAVAL (influenza vaccine) Food and Drug Administration AGENCY: Office of the General Counsel, 6. FLULAVAL QUADRIVALENT Office of the Secretary, Department of (influenza vaccine) [Docket No. FDA–2020–N–1117] Health and Human Services. 7. HIBERIX (Haemophilus b conjugate This document revises the Statement vaccine (tetanus toxoid conjugate)) Janssen Pharmaceuticals, Inc., et al.; of Organization, Functions, and 8. KOVALTRY (antihemophilic factor Withdrawal of Approval of 16 New Delegations of Authority for the (recombinant)) Drug Applications; Correction 9. QPAN H5N1 Vaccine (Influenza A Department of Health and Human Services, Office of the General Counsel (H5N1) virus monovalent vaccine, AGENCY: Food and Drug Administration, adjuvanted) Health and Human Services (HHS). (OGC) as published on August 4, 2020 (85 FR 47228) to correct a typographical Center for Drug Evaluation and ACTION: Notice; correction. error and to better reflect the functions Research SUMMARY: The Food and Drug of the Office. The August 4, 2020 1. BUTRANS (buprenorphine Administration (FDA) is correcting a Statement is retracted and replaced by transdermal system) notice that appeared in the Federal this document. As revised, it reflects a 2. CANASA (mesalamine suppositories Register on May 14, 2020. The new component, changes in titles and for rectal use) document announced the withdrawal of order of succession, and changes in the 3. DESCOVY (emtricitabine and approval (as of June 15, 2020) of 16 new law, and is being re-compiled so that the tenofovir alafenamide) drug applications (NDAs) from multiple Statement of Organization incorporates 4. DRAXIMAGE DTPA (technetium TC– applicants. The document indicated that all amendments, as may be amended 99m pentetate kit) injection and FDA was withdrawing approval of NDA herein, after the issuance of the last inhalation 050641, Monodox (doxycycline compiled Statement of Organization in 5. DYSPORT (abobotulinumtoxinA) monohydrate) Capsules, Equivalent to 1973. See 38 FR 17032 (June 28, 1973). 6. GENVOYA (elvitegravir, cobicistat, (EQ) 50 milligrams (mg) base, EQ 75 mg SUPPLEMENTARY INFORMATION: The Office emtricitabine, and tenofovir base, and EQ 100 mg base, after of the Secretary (OS)’s Statement of alafenamide) oral tablets receiving a withdrawal request from Organization, Functions, and 7. LUMASON (sulfur hexafluoride lipid- Aqua Pharmaceuticals, LLC, 707 Delegations of Authority for the type A microspheres) injectable Eagleview Blvd., Suite 200, Exton, PA Department of Health and Human suspension 19341. Before FDA withdrew the Services, Office of the General Counsel 8. LUMIFY (brimonidine tartrate) OTC approval of NDA 050641, Aqua (OGC), should now read as follows: 9. LUZU (luliconazole) cream, 1% Pharmaceuticals, LLC, informed FDA Section I. Mission 10. OMIDRIA (phenylephrine and that it did not want the approval of the ketorolac intraocular solution) NDA withdrawn. Because Aqua The Mission of the Office of the 11. SENSIPAR (cinacalcet) Pharmaceuticals, LLC, timely requested General Counsel and the General 12. STELARA (ustekinumab) injection that approval of the NDA not be Counsel, who is the special advisor to 13. SYMFI LO (efavirenz 400 milligram withdrawn, the approval of NDA the Secretary on legal matters, is to (mg) + lamivudine 300 mg + 050641 is still in effect. provide all legal services and advice to tenofovir disoproxil fumarate 300 FOR FURTHER INFORMATION CONTACT: the Secretary, Deputy Secretary, and all mg) and SYMFI (efavirenz 600 mg Kimberly Lehrfeld, Center for Drug subordinate organizational components + lamivudine 300 mg + tenofovir Evaluation and Research, Food and of the Department. disoproxil fumarate 300 mg) Drug Administration, 10903 New 14. TRIUMEQ (abacavir, dolutegravir, Section II Organization Hampshire Ave., Bldg. 51, Rm. 6226, and lamivudine) Silver Spring, MD 20993–0002, 301– The Office of the General Counsel, 15. XEPI (ozenoxacin) 796–3137, Kimberly.Lehrfeld@ under the supervision of a General Center for Devices and Radiological fda.hhs.gov. Counsel, consists of: Health SUPPLEMENTARY INFORMATION: In the 1. The General Counsel and Immediate 1. CONTEGRA PULMONARY VALVED Federal Register of May 14, 2020 (85 FR Office of the General Counsel CONDUIT (Humanitarian Device 28950), appearing on page 28950 in FR 2. Divisions in the Office of the General Exemption (HDE)) Doc. 2020–10367, the following Counsel 2. ELANA SURGICAL KIT (HDE) correction is made: 3. Ten Regional Offices
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Subsection A. The Immediate Office of e. Associate or Assistant Deputy seniority in that position shall act in or the General Counsel General Counsel to the General Counsel. serve as the Acting General Counsel as 1. The Immediate Office of the The General Counsel may designate one dictated by the Vacancies Reform Act of General Counsel. The Immediate Office or more attorneys to act as his or her 1998. special assistant and to carry the title of of the General Counsel shall consist of Subsection B. Divisions in the Office of Associate Deputy General Counsel or the General Counsel, his or her the General Counsel executive assistant, a Principal Deputy Assistant Deputy General Counsel, all of The Office of the General Counsel’s General Counsel, such other Deputy whom shall report directly to the General Counsel or to such Deputy nine divisions are as follows: General General Counsel, both non-career and General Counsel as the General Counsel Law Division (GLD); the Children, career, as the Secretary deems may designate. Families and Aging Division (CFAD); appropriate and appoints, Associate and f. Senior Counsel or Senior Advisor to the Ethics Division (ETHICSD); the Food Assistant Deputy General Counsel, the General Counsel. Senior Counsel or and Drug Division (FDD); the Public Senior Counsel, and such other Senior Advisor to the General Counsel Health Division (Ph.D.); the Legislative attorneys and assistants as the General perform such duties as may be assigned Division (LEGD); the Centers for Counsel deems appropriate, and the to them by the General Counsel, Deputy Medicare & Medicaid Services Division Office of Legal Resources (OLR). General Counsel or Associate General (CMSD); the Civil Rights Division a. The General Counsel. The General Counsel. At least one Senior Counsel or (CRD); and National Complex Litigation Counsel is the chief legal officer of the Senior Advisor should have a security and Investigations Division (NCLID). Department and is directly responsible clearance of the level and type deemed Each Division shall be headed by either to the Secretary. appropriate by the General Counsel. an Associate General Counsel or Deputy b. Principal Deputy General Counsel. g. Office of Legal Resources. The General Counsel, as determined by the The Principal Deputy General Counsel Office of Legal Resources within the General Counsel. shall be the second-ranking legal officer Immediate Office of the General 1. The General Law Division shall be of the Department and is directly Counsel, headed by a director, is headed by an Associate General Counsel responsible to the General Counsel and responsible for providing personnel, who reports to the General Counsel the Secretary. He or she may act in the budget, correspondence, and through a career Deputy General stead of the General Counsel when the information technology support to the Counsel. The Division consists of two General Counsel is absent or Office of the General Counsel. branches, each headed by a Deputy unavailable. 2. Relation of Immediate Office to the Associate General Counsel reporting to c. Deputy General Counsel. The Divisions and Regions. Each division the Associate General Counsel: Deputy General Counsel report to the and each region is under the general a. Claims and Employment Law Branch General Counsel and each shall be supervision of the General Counsel and responsible for overseeing such b. Procurement, Fiscal and Information the assigned Deputy General Counsel, Law Branch substantive areas as designated by the unless that Division is headed by a General Counsel. In certain instances, a Deputy General Counsel. Each 2. The Children, Families and Aging Deputy General Counsel may be Divisional Associate General Counsel Division shall be headed by an appointed by the Secretary or assigned and Regional Chief Counsel reports Associate General Counsel who reports by the General Counsel to serve as the directly to the assigned Deputy General to the General Counsel through a chief counsel of an operating division. Counsel on substantive legal matters, designated Deputy General Counsel. (1) Non-Career Deputy General litigation strategy, and other matters as 3. The Ethics Division shall be headed Counsel. Non-career Deputy General directed by the General Counsel. by an Associate General Counsel who Counsel report to the General Counsel 3. Order of Succession. reports to the General Counsel. The and each shall be responsible for a. General Counsel Vacancy. In the Division consists of two branches, each overseeing the substantive legal areas event of the General Counsel’s absence, headed by a Deputy Associate General and corresponding OGC components or in the event of a ‘‘vacancy’’ in the Counsel reporting to the Associate designated by the General Counsel. position of General Counsel as a result General Counsel: (2) Career Deputy General Counsel. of death, resignation, or an inability to a. Ethics Advice and Policy Branch There shall be two career Deputy perform the functions and duties of the b. Ethics Program Administration General Counsel who report to the office, the Principal Deputy General Branch General Counsel. First, a Deputy Counsel shall act in the General The Associate General Counsel and General Counsel who shall oversee OLR, Counsel’s stead, or serve as the Acting Deputy Associate for Ethics Advice and the General Law Division (GLD), the ten General Counsel as dictated by the Policy simultaneously serve by Regional Offices, and will be generally Vacancies Reform Act of 1998, 5 U.S.C. secretarial delegation as the responsible for OGC management and 3345 et seq. Department’s Designated Agency Ethics operations subject to the direction of the b. Principal Deputy General Counsel Official and Alternate Designated General Counsel. Second, a Deputy Vacancy. In the event of the absence of Agency Ethics Official, respectively. General Counsel who shall oversee or vacancies in offices of both the 4. The Food and Drug Division shall litigation and the National Complex General Counsel and the Principal be headed by a Chief Counsel who shall Litigation and Investigations Division Deputy General Counsel, the non-career be either a Deputy General Counsel or (NCLID). Deputy General Counsel with the Associate General Counsel. In the event d. Associate General Counsel. greatest seniority in that position shall that the Chief Counsel is an Associate Associate General Counsel either head a perform the functions of or serve as the General Counsel, he or she shall report Division within OGC or are located in Acting General Counsel as dictated by to the General Counsel through a the Immediate Office. In either event, the Vacancies Reform Act of 1998. In designated Deputy General Counsel. Associate General Counsel report to the the event that the disabilities or The Division consists of two major General Counsel or to such Deputy vacancies extend to or include all non- branches, each of which is headed by a General Counsel as the General Counsel career deputies, then the career Deputy Deputy Associate General Counsel who may designate. General Counsel with the greatest reports to the Chief Counsel, as follows:
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a. Litigation Branch 1. Region I—Boston (Connecticut, and in other cases, making and b. Program Review Branch, divided into Maine, Massachusetts, New supervising all contacts with attorneys the following three sub-branches: Hampshire, Rhode Island, Vermont) responsible for the conduct of such (1) Foods & Veterinary Medicine 2. Region II—New York City (New York, litigation. (2) Drugs and Biologics New Jersey, Puerto Rico, Virgin d. Acts as the Department’s sole (3) Tobacco & Devices Islands) representative in communicating with 5. The Public Health Division shall be 3. Region III—Philadelphia (Delaware, the Department of Justice, including all headed by an Associate General Counsel Maryland, Pennsylvania, Virginia, United States Attorneys, on all civil who reports to the General Counsel West Virginia, District of Columbia) matters and on all criminal matters, through a designated Deputy General 4. Region IV—Atlanta (Alabama, other than those criminal matters Counsel. The Division is divided into Florida, Georgia, Kentucky, referred to the Department of Justice by four branches, each of which is headed Mississippi, North Carolina, South the Inspector General. by a Deputy Associate General Counsel Carolina, Tennessee) e. Acts as the Department’s sole reporting to the Associate General 5. Region V—Chicago (Illinois, Indiana, representative in communicating with Counsel: Ohio, Michigan, Minnesota, Office of White House Counsel or the a. Indian Health Service Branch Wisconsin) Offices of General Counsel for any other b. Centers for Disease Control and 6. Region VI—Dallas (Arkansas, Department or Agency. Prevention Branch Louisiana, New Mexico, Oklahoma, f. Performs all liaison functions in c. National Institutes of Health Branch Texas) connection with legal matters involving d. Public Health and Science Branch 7. Region VII—Kansas City, MO (Iowa, the Department, and formulating or 6. The Legislation Division shall be Kansas, Missouri, Nebraska) reviewing requests for formal opinions headed by an Associate General Counsel 8. Region VIII—Denver (Colorado, or rulings by the Attorney General and who reports to the General Counsel Montana, North Dakota, South the Comptroller General. through a designated Deputy General Dakota, Utah, Wyoming) g. Issues pre-enforcement rulings or Counsel. 9. Region IX—San Francisco (Arizona, advisory opinions to the public on 7. The Centers for Medicare & California, Hawaii, Nevada, Guam, questions of law, except to the extent Medicaid Services Division shall be American Samoa, Commonwealth that that such authority has previously headed by a Chief Legal Officer who of the Northern Mariana Islands, the been delegated to the Inspector General shall be either a Deputy General Federated States of Micronesia, the under section 1128D of the Social Counsel or an Associate General Republic of the Marshall Islands, Security Act. Counsel. The Division consists of three the Republic of Palau) h. Authorizes indemnification, as major organizational groups, each of 10. Region X—Seattle (Alaska, Idaho, appropriate, pursuant to 45 CFR part 36. which is headed by a Deputy Associate Oregon, Washington) i. Conducts internal investigations at General Counsel reporting to the the request of the Secretary or Deputy Associate General Counsel or the Section III. Functions Secretary, or for matters that could lead Deputy General Counsel through an A. General Counsel and Immediate to litigation. Associate General Counsel, as follows: Office of the General Counsel j. Drafts all proposals for legislation a. Litigation Group originating in the Department and b. Program Review Group 1. The General Counsel. The General reviewing all proposed legislation c. Program Integrity Group Counsel is authorized to promulgate submitted to the Department or to any 8. The Civil Rights Division shall be such directives and issue such legal operating agency of the Department for headed by an Associate General Counsel opinions as may be necessary to carry comment; preparing reports and letters who reports to the General Counsel out the responsibilities of the Office. to congressional committees, the Office through a designated Deputy General The General Counsel directly (or of Management and Budget, and others Counsel, and by a Deputy Associate through attorneys in the Office of the on proposed legislation; and prescribing General Counsel who reports to the General Counsel), undertakes the procedures to govern the routing and Associate General Counsel. following activities unless an applicable review, within the Department, of 9. The National Complex Litigation statute provides otherwise or the material relating to proposed Federal and Investigations Division (NCLID) has General Counsel has delegated the legislation. an Associate General Counsel who responsibility elsewhere: k. Performs liaison functions with the reports to General Counsel through a a. Furnishes all legal services and Office of the Federal Register, National career Deputy General Counsel. In advice to the Secretary, Deputy Archives and Records Service. addition, NCLID has a Deputy Associate Secretary, and all offices, branches, or l. Reviews and approves all General Counsel for E-Discovery units of the Department in connection administrative complaints and reporting to the Associate General with the operations and administration enforcement actions by any agency Counsel. of the Department and its programs, within the Department before those except with respect to functions complaints are filed or transmitted, or Subsection C. Regional Offices expressly delegated by statute to the enforcement actions instituted to ensure There are ten regional offices. Each Inspector General. that the complaint or enforcement regional office has a Chief Counsel who b. Furnishes legal services and advice action is legally sound. reports to the General Counsel through on such other matters as may be m. Leads all negotiations on behalf of a designated career Deputy General submitted by the Secretary, the Deputy any agency within the Department. Counsel. Regional offices may also have Secretary, any other senior leaders, and n. Supervises all legal activities of the one or more Deputy Chief Counsel who other persons authorized by the Department and its operating agencies. report to the Chief Counsel. The Secretary to request such service or o. Ensures that no one in the regional offices are located in the advice. Department, other than those in OGC or following cities and provide legal c. Represents the Department in all expressly authorized by statute to do so, services to the Department in the litigation when such direct provides any legal advice to anyone in following states and territories: representation is not precluded by law, the Department or uses any title that
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implies that they are functioning as a d. Provides legal services to obligations, and standards of ethical departmental lawyer. Department Freedom of Information Act conduct matters including gifts between 2. Principal Deputy General Counsel. (FOIA) Officers on the disclosure of employees and from outside sources, The Principal Deputy General Counsel agency records requested under FOIA, conflicting financial interests and is the second ranking legal officer in the and communicates with the Department impartiality concerns, misuse of Department and performs the functions of Justice on the administration of the position and agency resources, and of the General Counsel in his or her Freedom of Information Act. outside employment, fundraising, absence or disability, including recusal, e. Provides legal services to the testimony, and teaching, speaking or and, unless otherwise noted, oversees Department on the Privacy Act of 1974, writing, to Department officials, agency for the General Counsel all litigation as amended, the Paperwork Reduction personnel, advisory committees and involving the Department, its officers, Act, the Federal Records Act, and the others. inferior officers, and employees. Government in the Sunshine Act. b. Reviews executive branch public 3. Deputy General Counsel. The f. Provides all legal services with financial disclosure reports submitted Deputy General Counsel assist the respect to the formation, maintenance, by Presidential nominees/appointees General Counsel in carrying out his or and administration of the advisory subject to Senate confirmation, non- her responsibilities and performs such committees under the Federal Advisory career SES and Schedule C political duties as the General Counsel or Committee Act. appointees, OGC career SES officials, g. Acts as the Department Claims Principal Deputy General Counsel may and Op/Staff Division ethics officials Officer, responsible for adjudicating all assign. The Associate General Counsel (DECs) to assess potential violations of administrative claims filed under the for a Division shall report to the General applicable laws or regulations, ensure Federal Tort Claims Act, approval of Counsel through one or more Deputy transparency through accurate claims filed under the Federal Medicare General Counsel, as may be assigned by reporting, provide counseling on the Recovery Claims Act in amounts of at the General Counsel. Regional Chief avoidance of conflicts, and, if necessary, least $20,000 but not exceeding recommending appropriate corrective Counsel shall report to the General $300,000, tort liability claims under the action, including drafting waivers, Counsel through a career Deputy U.S. Constitution and other laws under disqualification statements, ethics General Counsel. which claims for money damages may agreements, and certificate of divestiture be filed with the Department, as B. Functions, Authorities and materials; ensuring identical review and provided by 5 U.S.C. 5584, 10 U.S.C. Responsibilities of the Divisions counseling responsibilities with respect 2774, except for claims arising under to both the public and confidential The Divisions within OGC provide the Social Security Act. Also legal counsel to their clients, as responsible for making final financial disclosure forms filed by described below, subject to the determinations on legally enforceable career employees are performed professional supervision and control of non tax debts owed to the United States Department-wide by the DECs. the General Counsel and assigned government arising from HHS programs c. Plans, develops, and provides Deputy General Counsel. under the Federal Claims Collection initial ethics orientation for new 1. General Law Division. The General Act, as amended, 31 U.S.C. 3711 et seq., employees, annual ethics training for Law Division, acting through its on the compromise of, and the employees who file financial disclosure Associate General Counsel, performs the suspension or termination of collection forms and others occupying certain following: activities for, claims in amounts of sensitive positions, initial and annual a. Provides legal services on business $100,000 or less, exclusive of interest, ethics training for members of federal management activities and and on the waiver of interest. advisory committees, and specialized, administrative operations throughout 2. Children, Families, and Aging topic-specific training on post- the Department, including employment, Division. The Children, Families, and employment restrictions, political compensation, personnel, Aging Division Provides legal services activity restrictions, insider trading, and appropriations, real and personal to the Administration for Children and procurement integrity rules. property (including National Families and its various agencies d. Monitors component ethics Environmental Policy Act), including the Office of Refugee programs and reviewing compliance procurement, information, travel, and Resettlement and Administration for with core ethics program elements, certain claims by and against the Community Living. including advice, financial disclosure, Department. 3. Ethics Division. The Ethics Division outside activities, conflict of interest b. Represents the Department in all administers and oversees Department- waivers, ethics agreements and travel aspects of administrative litigation wide implementation of comprehensive payments from non-federal sources. before the Merit Systems Protection government ethics program e. Communicates on matters related to Board (MSPB), Equal Employment requirements under the Ethics in government ethics with the Office of Opportunity Commission (EEOC), and Government Act of 1978, as amended, Counsel to the President, the Office of in labor arbitrations, as needed. Acts as Executive Order 12731, and Government Ethics, the Office of Special agency counsel in support of the implementing regulations at 5 CFR part Counsel, the Office of the Inspector Department of Justice on employment 2638. The Division, without limitation, General, Special Investigations Unit, the cases filed in federal court. performs the following: Office of Personnel Management, and c. Represents the Department in bid a. Provides legal advice and policy the General Services Administration. protests filed before the Comptroller guidance on interpretation and f. Develops component-specific General and contract disputes filed compliance issues involving the conduct regulations and implementing before the Civilian Board of Contract criminal conflict of interest statutes, 18 procedures. Appeals. Acts as agency counsel in U.S.C. 210–219, political activity 4. Food and Drug Division. The Food support of the Department of Justice in restrictions, anti-lobbying provisions, and Drug Division acts as the bid protests and contract disputes filed outside activity limitations, travel Commissioner’s legal advisor and before the U.S. Court of Federal Claims reimbursement guidelines, procurement provides legal services to FDA. FDD, for and appealed to the Federal Circuit. integrity rules, financial disclosure example, performs the following:
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a. Represents the FDA in connection b. Prepares or reviews reports and offices within the Department, and in with judicial and administrative letters to Congressional Committees, the coordination with the assigned Deputy proceedings involving programs Office of Management and Budget, and General Counsel, evaluates complaints, administered by the FDA. Provides legal others on proposed legislation. advises whether there is legal basis to advice and policy guidance for c. Reviews proposed testimony of proceed, assists OCR in developing and programs administered by the FDA. Department officials before implementing investigation plans, and b. Acts as the Department and FDA’s Congressional Committees relating to clears the imposition of any civil money sole liaison to the Department of Justice pending or proposed legislation. penalties. CRD likewise represents the and other Federal Departments for d. Acts as Department liaison with the Department in administrative programs administered by FDA; all Office of Management and Budget on proceedings and federal litigation, criminal prosecutions, investigations, legislative matters. together with the Department of Justice. and civil matters may only be referred e. Prescribes procedures to govern the CRD provides these legal services with to the Department of Justice through the routing and review, within the respect to: Chief Counsel. Department, of material relating to a. Traditional civil rights laws such c. Drafts or reviews all proposed and proposed Federal legislation. as, by way of example, title VI of the final regulations and Federal Register 7. Centers for Medicare & Medicaid Civil Rights Act of 1964 (42 U.S.C. notices prepared by FDA. Services Division. The Centers for 2000d et seq.), title IX of the Education d. Performs legal research and gives Medicare & Medicaid Services Division, Amendments of 1972 (20 U.S.C. 1681 et legal opinions on regulatory issues, acting through the Deputy General seq.), the Age Discrimination Act of actions, and petitions submitted to FDA. Counsel serving as the CMS Chief Legal 1975 (42 U.S.C. 6101 et seq.), section e. Reviews proposed legislation Officer or an Associate General Counsel, 504 of the Rehabilitation Act of 1973 (29 affecting FDA that originates in the a. Acts as the CMS Administrator’s U.S.C. 794), the Americans with Department or on which Congress legal advisor. Disabilities Act of 1990 (42 U.S.C. 12101 b. Represents CMS and the Office of requests the views of the Department. et seq. and 47 U.S.C. 225, 661), section the National Coordinator for Health f. Provides legal advice and assistance 1557 of the Affordable Care Act (42 Information Technology (‘‘ONC’’) in to the Office of the Secretary on matters U.S.C. 18116). court proceedings and administrative within the expertise of the Chief b. Conscience statutes, such as the hearings with respect to programs Counsel. Church Amendments, the Weldon administered by CMS or ONC. Amendment, and the Coats-Snowe 5. Public Health Division. The Public c. Provides legal advice and policy Health Division provides legal services Amendment. guidance for programs administered by c. The Health Insurance and to all Public Health Service agencies CMS and ONC. Portability and Accountability Act of (except to the Food and Drug d. Acts as the Department’s and 1996 (Social Security Act section 1171 Administration) and their programs, CMS’s and ONC’s liaison to the et seq.), the Health Information including the Office of the Surgeon Department of Justice and other Federal Technology for Economic and Clinical General and the Commissioned Corps of Departments for programs administered Health (HITECH) Act, and the rules the U.S. Public Health Service. by those operating divisions. implementing them. Represented Public Health Service e. Drafts or reviews all proposed and The authorities of CRD and the agencies include, but are not limited to final regulations and Federal Register General Counsel described here do not the (i) the Office of the Assistant notices prepared by CMS, ONC, and supersede the terms of any statute, Secretary for Health, and its various other agencies. regulation, or delegation granting programs, (ii) the Office of the f. Performs legal research and gives authority or responsibility to OCR. Secretary’s Office of Minority Health, legal opinions on regulatory issues, 9. National Complex Litigation and (iii) the Centers for Disease Control and actions, and petitions submitted to CMS Investigations Division. The National Prevention, (iv) the National Institutes and ONC. Complex Litigation and Investigations of Health, (v) the Health Resources and g. Reviews proposed legislation Division provides legal services across Services Administration, (vi) the Indian affecting CMS, ONC, Office of Medicare the Department, as directed by the Health Service, (vii) the Substance Hearing Appeals (OMHA) and DAB that General Counsel or Principal Deputy Abuse and Mental Health Services originates in the Department or on General Counsel. In that regard, NCLID, Administration, (viii) the Agency for which Congress requests the views of performs the following: Healthcare Research and Quality, and the Department. a. Coordinates litigation spanning (ix) the Office of the Assistant Secretary h. Provides legal advice and multiple OGC divisions, regional for Preparedness and Response. In assistance to the Office of the Secretary offices, or geographic areas. addition, the Public Health Service on matters within the expertise of the b. Provides legal services in Division serves as the lead office within CMS Chief Legal Officer. connection with complex litigation or the Office of the General Counsel for i. Provides legal advice and assistance anticipated complex litigation by or grants-related and intellectual property to the Office of the Secretary on matters against the Department. Such litigation issues, other than federal court or PTAB relating to the COVID–19 Provider may include cases for which other OGC litigation. Relief Fund (PRF) and similar provider divisions or OGC regions request NCLID 6. Legislation Division. The relief programs, including advice participation; cases spanning multiple Legislation Division performs the regarding the administration of the PRF, OGC divisions or regional offices, or following: civil litigation relating to the PRF, and cases outside the scope of other OGC a. Drafts all proposed legislation fraud and abuse involving PRF divisions or regional offices. originating in the Department, payments. c. Conducts internal investigations at reviewing specifications for such 8. Civil Rights Division. The Civil the request of the Secretary or Deputy proposed legislation, and reviewing all Rights Division provides legal services Secretary, or on matters that could lead proposed legislation submitted to the for the Office for Civil Rights (OCR) and to litigation. Department or to any constituent unit of provides legal advice with respect to the d. Administers the OGC-wide e- the Department for comment. civil rights laws to all agencies and discovery program, and coordinates the
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use of e-discovery technology with other and personal information concerning amended, notice is hereby given of the HHS staff and operating divisions. individuals associated with the grant following meetings. e. Identifies and supports the applications, the disclosure of which The meetings will be closed to the implementation of best practices for would constitute a clearly unwarranted public in accordance with the litigation management, e-discovery, and invasion of personal privacy. provisions set forth in sections virtual staffing across OGC. Name of Committee: Neurological Sciences 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and C. Functions, Authorities and Training Initial Review Group; NST–1, the discussions could disclose Responsibilities of the Regions Subcommittee NST–1. Date: September 21–22, 2020. confidential trade secrets or commercial The Chief Counsel of each Region is Time: 9:00 a.m. to 3:00 p.m. property such as patentable material, HHS’ legal representative in that Region. Agenda: To review and evaluate grant and personal information concerning Regional offices within OGC provide a applications. individuals associated with the grant full range of legal services including, by Place: National Institutes of Health, NSC, applications, the disclosure of which way of example, legal counsel to their 6001 Executive Boulevard, Bethesda, MD would constitute a clearly unwarranted 20892 (Virtual Meeting). departmental clients and client agencies invasion of personal privacy. in the regions, as described below, Contact Person: William C. Benzing, Ph.D., Scientific Review Officer, Scientific Review Name of Committee: Risk, Prevention and subject to the professional supervision Branch, Division of Extramural Research, Health Behavior Integrated Review Group; and direction of the General Counsel. NINDS, NIH, NSC, 6001 Executive Blvd., Behavioral Medicine, Interventions and The Office of the General Counsel’s Suite 3204, MSC 9529, Bethesda, MD 20892– Outcomes Study Section. ten regional offices provide legal advice, 9529, (301) 496–0660, benzingw@ Date: October 5–6, 2020. administrative and judicial litigation mail.nih.gov. Time: 9:00 a.m. to 6:00 p.m. support and counseling services to the This notice is being published less than 15 Agenda: To review and evaluate grant regional components of the Department. days prior to the meeting due to the timing applications. Regional attorneys provide general law limitations imposed by the review and Place: National Institutes of Health, funding cycle. Rockledge II, 6701 Rockledge Drive, support to regional clients and handle Bethesda, MD 20892 (Virtual Meeting). work in most areas within HHS’ Name of Committee: National Institute of Contact Person: Mark Allen Vosvick, Ph.D., jurisdiction with particular emphasis on Neurological Disorders and Stroke Special Scientific Review Officer, Center for litigation for, among others, CMS, ACF, Emphasis Panel, NST–1 Member Conflict Scientific Review, National Institutes of OCR, CDC, and IHS. Regional offices Review Panel. Health, 6701 Rockledge Drive, Room 3110, Date: September 22, 2020. Bethesda, MD 20892, 301–402–4128, also provide leadership with respect to Time: 1:00 p.m. to 6:00 p.m. bankruptcy cases. In the area of civil [email protected]. Agenda: To review and evaluate grant Name of Committee: Population Sciences rights, they work in close consultation applications. with the Associate General Counsel for and Epidemiology Integrated Review Group; Place: National Institutes of Health, NSC, Behavioral Genetics and Epidemiology Study the Civil Rights Division to ensure that 6001 Executive Boulevard, Bethesda, MD Section. the regional positions align closely with 20892 (Virtual Meeting). Date: October 6–7, 2020. those of the Division thereby fostering Contact Person: William C. Benzing, Ph.D., Time: 8:00 a.m. to 5:00 p.m. national uniformity. In other areas, the Scientific Review Officer, Scientific Review Agenda: To review and evaluate grant Divisions and Regions work Branch, Division of Extramural Activities, applications. NINDS, NIH NSC, 6001 Executive Blvd., Place: National Institutes of Health, collaboratively to provide consistent, Suite 3204, MSC 9529, Bethesda, MD 20892– uniform legal advice. Rockledge II, 6701 Rockledge Drive, 9529, (301) 496–0660, benzingw@ Bethesda, MD 20892 (Virtual Meeting). Dated: August 27, 2020. mail.nih.gov. Contact Person: Andrew Louden, Ph.D., Alex M. Azar II, This notice is being published less than 15 Scientific Review Officer, Center for Secretary, Department of Health and Human days prior to the meeting due to the timing Scientific Review, National Institutes of Services. limitations imposed by the review and Health, 6701 Rockledge Drive, Room 3137, funding cycle. Bethesda, MD 20817, 301–435–1985, [FR Doc. 2020–19325 Filed 8–28–20; 8:45 am] (Catalogue of Federal Domestic Assistance [email protected]. BILLING CODE P Program Nos. 93.853, Clinical Research Name of Committee: Center for Scientific Related to Neurological Disorders; 93.854, Review Special Emphasis Panel; S10 Biological Basis Research in the Programs for Shared Instrumentation Grant DEPARTMENT OF HEALTH AND Neurosciences, National Institutes of Health, (SIG) and Shared Instrumentation for Animal HUMAN SERVICES HHS) Research (SIFAR) Grant. Date: October 6, 2020. National Institutes of Health Dated: August 27, 2020. Time: 10:00 a.m. to 7:00 p.m. Tyeshia M. Roberson, Agenda: To review and evaluate grant National Institute of Neurological Program Analyst, Office of Federal Advisory applications. Disorders and Stroke; Notice of Closed Committee Policy. Place: National Institutes of Health, Meetings [FR Doc. 2020–19318 Filed 9–1–20; 8:45 am] Rockledge II, 6701 Rockledge Drive, Bethesda, MD 20892 (Virtual Meeting). Pursuant to section 10(d) of the BILLING CODE 4140–01–P Contact Person: Jan Li, MD, Ph.D., Federal Advisory Committee Act, as Scientific Review Officer, Center for amended, notice is hereby given of the Scientific Review, National Institutes of DEPARTMENT OF HEALTH AND Health, 6701 Rockledge Drive, Room 5106, following meetings. HUMAN SERVICES The meetings will be closed to the Bethesda, MD 20892, 301.402.9607, Jan.Li@ nih.gov. public in accordance with the National Institutes of Health provisions set forth in sections Name of Committee: Oncology 1-Basic 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Translational Integrated Review Group; Center for Scientific Review; Notice of Molecular Oncogenesis Study Section. as amended. The grant applications and Closed Meetings Date: October 7–8, 2020. the discussions could disclose Time: 9:00 a.m. to 5:00 p.m. confidential trade secrets or commercial Pursuant to section 10(d) of the Agenda: To review and evaluate grant property such as patentable material, Federal Advisory Committee Act, as applications.
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Place: National Institutes of Health, Comments and supporting Department of Homeland Security on Rockledge II, 6701 Rockledge Drive, documents: To ensure your comments matters relating to the safe operation of Bethesda, MD 20892 (Virtual Meeting). are received by Committee members commercial fishing industry vessels. Contact Person: Nywana Sizemore, Ph.D., before the virtual meeting, submit your Scientific Review Officer, Center for written comments no later than Agenda Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 6204, September 17, 2020. The agenda for the September 24, MSC 7804, Bethesda, MD 20892, 301–435– ADDRESSES: To join the virtual meeting 2020, virtual meeting is as follows: 1718, [email protected]. or to request special accommodations, • Introduction. Name of Committee: Integrative, contact the individual listed in the FOR Functional and Cognitive Neuroscience FURTHER INFORMATION CONTACT section • Roll call of Committee members Integrated Review Group; Mechanisms of no later than 1 p.m. on September 17, and determination of a quorum. Sensory, Perceptual, and Cognitive Processes 2020. • Comments by Designated Federal Study Section. Instructions: You are free to submit Officer (DFO). Date: October 7–8, 2020. comments at any time, including orally Time: 9:00 a.m. to 3:00 p.m. at the virtual meeting as time permits, • Comments by ADFO. Agenda: To review and evaluate grant however, if you desire that the • applications. Comments by the Committee Place: National Institutes of Health, Committee members review your Chairman. comments before the virtual meeting, Rockledge II, 6701 Rockledge Drive, • Comments by Federal Advisory please submit your comments no later Bethesda, MD 20892 (Virtual Meeting). Committee Representative. Contact Person: Kirk Thompson, Ph.D., than September 17, 2020. We encourage Scientific Review Officer, Center for you to submit comments through the • Old Business from the 40th Scientific Review, National Institutes of Federal eRulemaking Portal at https:// Commercial Fishing Safety Advisory Health, 6701 Rockledge Drive, Room 5184, www.regulations.gov. If your material Committee meeting. MSC 7844, Bethesda, MD 20892, 301–435– cannot be submitted using https://www/ • 1242, [email protected]. Comments by U.S. Coast Guard regulations.gov, call or email the Office of Standards Evaluation and (Catalogue of Federal Domestic Assistance individual in the FOR FURTHER Program Nos. 93.306, Comparative Medicine; Development. INFORMATION CONTACT section of this 93.333, Clinical Research, 93.306, 93.333, • document for alternate instructions. You Comments by CG–NAV–3. 93.337, 93.393–93.396, 93.837–93.844, • 93.846–93.878, 93.892, 93.893, National must include the docket number New Business. Institutes of Health, HHS) [USCG–2020–0490]. Comments received • Comments by Committee Chairman. will be posted without alteration at Dated: August 27, 2020. • http://www.regulations.gov, including Public comment period. Melanie J. Pantoja, any personal information provided. For • Discussion: Task # 01–19(b)— Program Analyst, Office of Federal Advisory more about privacy and submissions in Lifesaving/Man Overboard (MOB) Committee Policy. response to this document, see DHS’s Voluntary Best Practice Guide. [FR Doc. 2020–19317 Filed 9–1–20; 8:45 am] eRulemaking System of Records notice • Public comment period. BILLING CODE 4140–01–P (85 FR 14226, March 11, 2020). If you • encounter technical difficulties with Comments by DFO. comment submission, contact the • Comments by Committee Chairman. DEPARTMENT OF HOMELAND individual listed in the FOR FURTHER • Adjournment of meeting. SECURITY INFORMATION CONTACT section of this notice. A copy of all pre-meeting Coast Guard Docket Search: Documents mentioned documentation will be available at [Docket No. USCG–2020–0490] in this notice as being available in the https://www.dco.uscg.mil/fishsafe no docket, and all public comments, will later than September 21, 2020. Commercial Fishing Safety Advisory be in our online docket at https:// Alternatively, you may contact Mr. Committee; Meeting www.regulations.gov and can be viewed Jonathan Wendland as noted in the FOR by following that website’s instructions. FURTHER INFORMATION CONTACT section AGENCY: U.S. Coast Guard, Department Additionally, if you go to the online above. of Homeland Security. docket and sign-up for email alerts, you During the September 24, 2020, ACTION: Notice of Federal Advisory will be notified when comments are Committee virtual meeting. virtual meeting, public comments will posted. be limited to three minutes per person. SUMMARY: The Commercial Fishing FOR FURTHER INFORMATION CONTACT: Mr. Please note that the public comment Safety Advisory Committee (Committee) Jonathan Wendland, Alternate period may end before the period will meet via a virtual meeting to Designated Federal Officer (ADFO) of allotted, following the last call for discuss voluntary guidelines for the the Commercial Fishing Safety Advisory comments. Please contact the individual prevention of falls overboard situations, Committee, telephone (202) 372–1245, listed in the FOR FURTHER INFORMATION as described in task statement #01– or email at [email protected]. CONTACT section above to register as a 19(b). The virtual meeting will be open SUPPLEMENTARY INFORMATION: Notice of speaker prior to September 22, 2020. to the public. this meeting is in compliance with the DATES: Federal Advisory Committee Act, (5 Dated: August 28, 2020. Meeting. The Committee is scheduled U.S.C., Appendix). Wayne R. Arguin Jr., to meet virtually on Thursday, The Commercial Fishing Safety Captain, U.S. Coast Guard, Director of September 24, 2020, from 1 p.m. to 3 Advisory Committee is authorized by Inspections and Compliance. p.m. Eastern Daylight Time. Please note Title 46 United States Code Section [FR Doc. 2020–19400 Filed 9–1–20; 8:45 am] that this virtual meeting may adjourn 4508. The Committee’s purpose is to BILLING CODE 9110–04–P early if the Committee has completed its provide advice and recommendations to business. the United States Coast Guard and the
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DEPARTMENT OF HOMELAND (1) Advise the Secretaries of the considered Special Government SECURITY Treasury and DHS on all matters Employees and will not be paid involving the commercial operations of compensation by the Federal U.S. Customs and Border Protection CBP, including advising with respect to Government for their representative [Docket No. USCBP–2020–0037] significant changes that are proposed services with respect to the COAC. with respect to regulations, policies, or Application for COAC Appointment Request for Applicants for practices of CBP; Appointment to the Commercial (2) provide recommendations to the Any interested person wishing to Customs Operations Advisory Secretaries of the Treasury and DHS on serve on the COAC must provide the Committee (COAC) improvements to the commercial following: operations of CBP; • Statement of interest and reasons AGENCY: U.S. Customs and Border (3) collaborate in developing the for application; Protection, Department of Homeland agenda for COAC meetings; and • Complete professional resume; Security (DHS). (4) perform such other functions • Home address and telephone ACTION: Committee Management; relating to the commercial operations of number; • request for applicants for appointment CBP as prescribed by law or as the Work address, telephone number, to the COAC. and email address; Secretaries of the Treasury and DHS • jointly direct. Statement of the industry you SUMMARY: U.S. Customs and Border represent; and Protection (CBP) is requesting that Balanced Membership Plans • Statement agreeing to submit to pre- individuals who are interested in The COAC consists of 20 members appointment mandatory background serving on the Commercial Customs who are selected from representatives of and tax checks. Operations Advisory Committee (COAC) the trade or transportation community A national security clearance is not apply for membership. COAC provides served by CBP, or others who are required for the position. DHS does not advice and makes recommendations to directly affected by CBP commercial discriminate on the basis of race, color, the Secretaries of the Department of the operations and related functions. The religion, sex, national origin, sexual Treasury (Treasury) and Department of members shall represent the interests of orientation, gender identity, marital Homeland Security (DHS) on all matters individuals and firms affected by the status, disability and genetic involving the commercial operations of commercial operations of CBP, and be information, age, membership in an CBP and related functions. appointed without regard to political employee organization, or other non- DATES: Applications for membership affiliation. The members will be merit factor. DHS strives to achieve a should be submitted to CBP at the appointed by the Secretaries of the widely diverse candidate pool for all of address below on or before October 19, Treasury and DHS from candidates its recruitment actions. 2020. recommended by the Commissioner of Signing Authority ADDRESSES: If you wish to apply for CBP. In addition, members will The Chief Operating Officer and membership, your application should be represent major regions of the country. submitted by one of the following Senior Official Performing the Duties of means: COAC Meetings the Commissioner, Mark A. Morgan, • Email: florence.v.constant-gibson@ The COAC meets at least once each having reviewed and approved this cbp.dhs.gov. quarter, although additional meetings document, is delegating the authority to • Fax: 202–325–4290. electronically sign this document to • may be scheduled. Generally, every Mail: Ms. Florence Constant- other public meeting of the COAC may Robert F. Altneu, who is the Director of Gibson, Office of Trade Relations, U.S. be held outside of Washington, DC, the Regulations and Disclosure Law Customs and Border Protection, 1300 usually at a CBP port of entry. The Division for CBP, for purposes of Pennsylvania Avenue NW, Room 3.5A, members are not reimbursed for travel publication in the Federal Register. Washington, DC 20229. or per diem. Dated: August 28, 2020. FOR FURTHER INFORMATION CONTACT: Ms. COAC Membership Robert F. Altneu, Florence Constant-Gibson, U.S. Customs Director, Regulations & Disclosure Law and Border Protection, 1300 Membership on the COAC is personal Division, Regulations & Rulings, Office of Pennsylvania Avenue NW, Room 3.5A, to the appointee and a member may not Trade, U.S. Customs and Border Protection. Washington, DC 20229. Email: send an alternate to represent him or her [FR Doc. 2020–19413 Filed 9–1–20; 8:45 am] [email protected]; at a COAC meeting. Appointees will BILLING CODE 9111–14–P telephone 202–344–1440; facsimile serve a one- to three-year term of office, 202–325–4290. determined at the discretion of the SUPPLEMENTARY INFORMATION: Section appointing officials. Regular attendance DEPARTMENT OF HOUSING AND 109 of the Trade Facilitation and Trade is essential; a member who is absent for URBAN DEVELOPMENT Enforcement Act of 2015 (Pub. L. 114– two consecutive meetings, or does not 125, 130 Stat. 122, February 24, 2016) participate in the committee’s work, [Docket No. FR–7024–N–38] re-established the COAC. The COAC is may be recommended for replacement an advisory committee established in on the COAC. 30-Day Notice of Proposed Information accordance with the provisions of the Members who are currently serving Collection: Single Family Application Federal Advisory Committee Act, 5 on the COAC are eligible to re-apply for for Insurance Benefits; OMB Control U.S.C. Appendix. The COAC advises the membership provided that they are not Number (2502–0429) Secretaries of the Treasury and DHS on in their second consecutive term and AGENCY: Office of the Chief Information the commercial operations of CBP and that they have met the attendance Officer, HUD. related Treasury and DHS functions. In requirements. A new application letter ACTION: Notice. accordance with Section 109 of the is required, and may incorporate copies Trade Facilitation and Trade of previously filed application materials SUMMARY: HUD has submitted the Enforcement Act, the COAC shall: noted herein. Members will not be proposed information collection
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requirement described below to the HUD’s programs and FHA’s Mutual DEPARTMENT OF HOUSING AND Office of Management and Budget Mortgage Insurance Fund. URBAN DEVELOPMENT (OMB) for review, in accordance with Respondents: Individuals or [Docket No. FR–7024–N–34] the Paperwork Reduction Act. The households and business or other for- purpose of this notice is to allow for an profits. 30-Day Notice of Proposed Information additional 30 days of public comment. Collection: Compliance Inspection Estimated Number of Respondents: DATES: Comments Due Date: October 2, Report and Mortgagee’s Assurance of 2020. 440. Completion; OMB Control Number ADDRESSES: Interested persons are Estimated Number of Responses: (2502–0189) invited to submit comments regarding 1,125,454. AGENCY: Office of the Chief Information this proposal. Written comments and Frequency of Response: 2557.85. Officer, HUD. recommendations for the proposed Average Hours per Response: information collection should be sent ACTION: Notice. 0.8293677961. within 30 days of publication of this SUMMARY: HUD has submitted the notice to www.reginfo.gov/public/do/ Total Estimated Burdens: 933,415.30. proposed information collection Start Printed Page 15501PRAMain. Find B. Solicitation of Public Comment requirement described below to the this particular information collection by Office of Management and Budget selecting ‘‘Currently under 30-day This notice is soliciting comments (OMB) for review, in accordance with Review—Open for Public Comments’’ or from members of the public and affected the Paperwork Reduction Act. The by using the search function. parties concerning the collection of purpose of this notice is to allow for an FOR FURTHER INFORMATION CONTACT: information described in Section A on additional 30 days of public comment. Colette Pollard, Reports Management the following: DATES: Comments Due Date: October 2, Officer, QDAM, Department of Housing (1) Whether the proposed collection 2020. and Urban Development, 451 7th Street ADDRESSES: Interested persons are SW, Washington, DC 20410; email of information is necessary for the proper performance of the functions of invited to submit comments regarding Colette Pollard at Colette.Pollard@ this proposal. Written comments and hud.gov or telephone 202–402–3400. the agency, including whether the information will have practical utility; recommendations for the proposed Persons with hearing or speech information collection should be sent impairments may access this number (2) The accuracy of the agency’s within 30 days of publication of this through TTY by calling the toll-free estimate of the burden of the proposed notice to www.reginfo.gov/public/do/ Federal Relay Service at (800) 877–8339. collection of information; StartPrintedPage15501PRAMain. Find This is not a toll-free number. Copies of (3) Ways to enhance the quality, this particular information collection by available documents submitted to OMB utility, and clarity of the information to selecting ‘‘Currently under 30-day may be obtained from Ms. Pollard. be collected; and Review—Open for Public Comments’’ or SUPPLEMENTARY INFORMATION: This by using the search function. (4) Ways to minimize the burden of notice informs the public that HUD has FOR FURTHER INFORMATION CONTACT: submitted to OMB a request for the collection of information on those Colette Pollard, Reports Management approval of the information collection who are to respond, including through Officer, QDAM, Department of Housing described in Section A. The Federal the use of appropriate automated and Urban Development, 451 7th Street Register notice that solicited public collection techniques or other forms of SW, Washington, DC 20410–5000, email comment on the information collection information technology, e.g., permitting Colette Pollard at Colette.Pollard@ for a period of 60 days was published electronic submission of responses. hud.gov or telephone 202–402–3400 on March 9, 2020 at 85 FR 13671. (5) ways to minimize the burden of (this is not a toll free number). Persons A. Overview of Information Collection the collection of information on those with hearing or speech impairments who are to respond, including the use may access the telephone number Title of Information Collection: Single of automated collection techniques or through TTY by calling the tollfree Family Application for Insurance Federal Relay Service at 800–877–8339. Benefits. other forms of information technology. HUD encourages interested parties to Copies of available documents OMB Approval Number: 2502–0429. submitted to OMB may be obtained submit comment in response to these Type of Request: Revision. from Ms. Pollard. Form Numbers: HUD–27011, HUD– questions. SUPPLEMENTARY INFORMATION: This 9519–A, HUD–9539, HUD–50002, C. Authority notice informs the public that HUD has HUD–50012 submitted to OMB a request for Description of the need for the Section 2 of the Paperwork Reduction approval of the information collection information and proposed use: The Act of 1995, 44 U.S.C. 3507. described in Section A. The Federal respondents for this collection of Register notice that solicited public information are Mortgagees that service Dated: August 14, 2020. Anna Guido, comment on the information collection FHA-insured mortgage loans; for a period of 60 days was published Mortgagors who are the homeowners; Department Repots Management Officer, on February 25, 2020 at 85 FR 10712. and the Mortgage Compliance Manager Office of the Chief Information Officer. (MCM) contractor who manages HUD’s [FR Doc. 2020–19331 Filed 9–1–20; 8:45 am] A. Overview of Information Collection single family real estate owned (REO) BILLING CODE 4210–67–P Title of Information Collection: activities. This collection of information Compliance Inspection Report and is where FHA-insured mortgage loan Mortgagee’s Assurance of Completion. servicing covers the claims, conveyance OMB Control Number, if applicable: process, property inspection, and 2502–0189. preservation. The data and information Type of Request: Extension of provided is essential for managing currently approved collection.
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Form Numbers: HUD 92051, HUD– DEPARTMENT OF THE INTERIOR telecommunications device for the deaf 92300. (TDD) may call the Federal Relay Description of the need for the Bureau of Land Management Service at 1–800–877–8339 to contact information and proposed use: Accurate [LLWY–957000–20X–L14400000–BJ0000] this office during normal business and thorough property information is hours. The Service is available 24 hours critical to the accuracy of underwriting Filing of Plats of Survey, Wyoming a day, 7 days a week, to leave a message for the mortgage insurance process. This or question with this office. You will information collection is needed to AGENCY: Bureau of Land Management, receive a reply during normal business ensure newly built homes financed with Interior. hours. FHA mortgage insurance are ACTION: Notice of official filing. SUPPLEMENTARY INFORMATION: The plats constructed in accordance with of survey of the following described SUMMARY: The Bureau of Land acceptable building standards and that lands are scheduled to be officially filed Management (BLM) is scheduled to file deficiencies found in newly constructed in the Bureau of Land Management, plats of survey 30 calendar days from and existing dwellings are corrected. Wyoming State Office, Cheyenne, the date of this publication in the BLM Respondents: Mortgagees. Wyoming. Wyoming State Office, Cheyenne, Estimated Number of Respondents: Wyoming. The surveys, which were Sixth Principal Meridian, Wyoming 2,966. executed at the request of the BLM and All plats of survey in this notice of Estimated Number of Responses: the United States Forest Service are 34,833.89. official filing were accepted August 26, necessary for the management of these 2020. Frequency of Response: 11.7444. lands. Average Hours per Response: 0.17500. T. 29 N., R. 109 W., Group No. 988, DATES: Protests must be received by the corrective dependent resurvey Total Estimated Burden Hours: BLM prior to the scheduled date of 6,095.93. T. 45 N., R. 101 W., Group No. 998, official filing by October 2, 2020. dependent resurvey and survey B. Solicitation of Public Comment ADDRESSES: You may submit written T. 35 N., R. 109 W., Group No. 1001, corrective dependent resurvey This notice is soliciting comments protests to the Wyoming State Director at WY957, Bureau of Land Management, T. 50 N., R. 83 W., Group No. 1002, from members of the public and affected dependent resurvey and survey parties concerning the collection of 5353 Yellowstone Road, Cheyenne, T. 48 N., R. 65 W., Group No. 1003, information described in Section A on Wyoming 82009. dependent resurvey and survey the following: A person or party who wishes to T. 30 N., R. 79 W., Group No. 1007, (1) Whether the proposed collection protest one or more plats of survey dependent resurvey and survey T. 30 N., R. 80 W., Group No. 1007, of information is necessary for the identified below must file a written notice of protest within 30 calendar dependent resurvey and survey proper performance the functions of the T. 15 N., R. 75 W., Group No. 1010, agency, including whether the days from the date of this publication with the Wyoming State Director at the dependent resurvey information will have practical utility; T. 49 N., R. 77 W., Group No. 1013, above address. Any notice of protest (2) The accuracy of the agency’s dependent resurvey received after the scheduled date of estimate of the burden of the proposed T. 31 N., R. 83 W., Group No. 1020, official filing will be untimely and will collection of information; dependent resurvey and survey not be considered. A written statement (3) Ways to enhance the quality, Copies of the preceding described of reasons in support of a protest, if not utility, and clarity of the information to plats and field notes are available to the filed with the notice of protest, must be be collected; and public at a cost of $4.20 per plat and filed with the State Director within 30 $0.15 per page of field notes. Requests (4) Ways to minimize the burden of calendar days after the notice of protest can be made to blm_wy_survey_ the collection of information on those is filed. If a notice of protest against a [email protected] or by telephone at who are to respond; including through plat of survey is received prior to the 307–775–6222. the use of appropriate automated scheduled date of official filing, the collection techniques or other forms of official filing of the plat of survey Dated: August 28, 2020. information technology, e.g., permitting identified in the notice of protest will be Sonja S. Sparks, electronic submission of responses. stayed pending consideration of the Chief Cadastral Surveyor, Division of Support (5) ways to minimize the burden of protest. A plat of survey will not be Services. the collection of information on those officially filed until the next business [FR Doc. 2020–19412 Filed 9–1–20; 8:45 am] who are to respond, including the use day following dismissal or resolution of BILLING CODE 4310–22–P of automated collection techniques or all protests of the plat. Before including other forms of information technology your address, phone number, email HUD encourages interested parties to address, or other personal identifying DEPARTMENT OF THE INTERIOR submit comment in response to these information in your protest, you should questions. be aware that your entire protest— National Park Service C. Authority including your personal identifying [NPS–WASO–NRNHL–DTS#-30808; information—may be made publicly PPWOCRADI0, PCU00RP14.R50000] Section 3507 of the Paperwork available at any time. While you can ask Reduction Act of 1995, 44 U.S.C. us to withhold your personal identifying National Register of Historic Places; Chapter 35. information from public review, we Notification of Pending Nominations Dated: August 14, 2020. cannot guarantee that we will be able to and Related Actions Anna Guido, do so. AGENCY: National Park Service, Interior. Department Reports Management Officer, FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Office of the Chief Information Officer. Sonja Sparks, BLM Wyoming Chief [FR Doc. 2020–19332 Filed 9–1–20; 8:45 am] Cadastral Surveyor at 307–775–6225 or SUMMARY: The National Park Service is BILLING CODE 4210–67–P [email protected]. Persons who use a soliciting electronic comments on the
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significance of properties nominated Sedgwick County VERMONT before August 22, 2020, for listing or Century II Performing Arts and Convention Washington County related actions in the National Register Center, 225 West Douglas Ave., Wichita, East Calais Historic District, VT14, SG100005627 of Historic Places. Marshfield Rd., Batten Rd., Back St., and McCormick-Armstrong Press Building, 1501 DATES: Comments should be submitted Moscow Woods Rd., Calais, SG100005618 East Douglas Ave., Wichita, SG100005628 electronically by September 17, 2020. Wichita Public Library-Main Branch, 223 Windsor County ADDRESSES: Comments are encouraged South Main St., Wichita, SG100005629 Stockmayer, Walter and Sylvia, House, (Mid- to be submitted electronically to Shawnee County Century Modern Residential Architecture National_Register_Submissions@ in Norwich, Vermont MPS), 48 Overlook nps.gov with the subject line ‘‘Public Kouns, Charles and Dorothy, House, 1625 Dr., Norwich, MP100005643 Comment on
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(‘‘ALJ’’) granting summary Takebishi Packing Industry Co., Ltd., of OUII filed a reply submission. No other determination on violation of section Qingdao, China (collectively, the submissions were received. 337 by certain defaulting respondents. ‘‘Unserved Respondents’’). Id. at 43616– Having examined the record in this The Commission has also determined to 17. It also names the Office of Unfair investigation, including the ID granting issue a general exclusion order (‘‘GEO’’) Import Investigations (‘‘OUII’’) as a summary determination, and the party’s barring entry of certain child resistant party. Id. at 43617. submissions, the Commission has closures with slider devices having a On October 7, 2019, the ALJ issued an determined to affirm, with modified user actuated insertable torpedo for ID finding the two Dalian Respondents reasoning, the ID’s findings with respect selectively opening the closures and in default. Order No. 7 (Oct. 30, 2019), to the economic prong of the domestic slider devices therefor that infringe the unreviewed by Comm’n Notice (Nov. 26, industry requirement and, thus, the ID’s asserted claims of the three patents at 2019). On November 19, 2019, the ALJ finding of a violation of section 337. The issue in this investigation. This issued an ID terminating the Commission has also determined that investigation is terminated. investigation in part based on Presto’s the appropriate remedy in this FOR FURTHER INFORMATION CONTACT: withdrawal of the complaint as to the investigation is a GEO prohibiting the Richard P. Hadorn, Esq., Office of the Unserved Respondents, which were unlicensed entry of certain child General Counsel, U.S. International never served with the complaint. Order resistant closures with slider devices Trade Commission, 500 E Street SW, No. 10 (Nov. 19, 2019), unreviewed by having a user actuated insertable Washington, DC 20436, telephone (202) Comm’n Notice (Dec. 18, 2019). That ID torpedo for selectively opening the 205–3179. Copies of non-confidential also terminated the investigation as to closures and slider devices therefor that (i) claims 6 and 7 of the ’531 patent and documents filed in connection with this infringe certain claims of the three (ii) claims 6 and 7 of the ’058 patent. Id. investigation may be viewed on the patents asserted in the investigation, Commission’s electronic docket (EDIS) On November 15, 2019, Presto filed a pursuant to section 337(g)(2) (19 U.S.C. at https://edis.usitc.gov. For help motion for summary determination that 1337(g)(2)). The Commission has further the domestic industry requirement was accessing EDIS, please email determined that the bond during the [email protected]. General satisfied and that a violation had been period of Presidential review pursuant information concerning the Commission established. Presto’s motion requested to section 337(j) (19 U.S.C. 1337(j)) shall may also be obtained by accessing its immediate entry of a limited exclusion be in the amount of 100 percent of the internet server at https://www.usitc.gov. order (‘‘LEO’’) against the Dalian entered value of the imported articles Hearing-impaired persons are advised Respondents, a GEO, and a 100 percent that are subject to the GEO. The that information on this matter can be bond. On November 26, 2019, OUII filed Commission has also determined that obtained by contacting the a response to the motion supporting the the public interest factors enumerated in Commission’s TDD terminal, telephone summary determination motion and the subsection 337(d)(1) (19 U.S.C. (202) 205–1810. requested GEO and 100 percent bond 1337(d)(1)) do not preclude the issuance SUPPLEMENTARY INFORMATION: during the period of Presidential review. On August of the GEO. The Commission’s order On April 21, 2020, the ALJ issued an 21, 2019, the Commission instituted this was delivered to the President and to ID granting summary determination of investigation based on a complaint filed the United States Trade Representative by Reynolds Presto Products Inc. violation of section 337 by the Dalian on the day of its issuance. This (‘‘Presto’’). 84 FR 43616–17 (Aug. 21, Respondents. The ID also contains the investigation is hereby terminated in its 2019). The complaint alleges violations ALJ’s recommendation on remedy and entirety. of section 337 of the Tariff Act of 1930, bonding, in which the ALJ recommends as amended (19 U.S.C. 1337) (‘‘section issuance of a GEO or, in the alternative, The Commission vote for these 337’’) based on the importation into the a LEO directed to the Dalian determinations took place on August 27, United States, the sale for importation, Respondents, and that a 100 percent 2020. or the sale within the United States after bond be set for importation during the The authority for the Commission’s importation of certain child resistant period of Presidential review. determinations is contained in section closures with slider devices having a On May 1, 2020, OUII filed a petition 337 of the Tariff Act of 1930, as user actuated insertable torpedo for seeking review of portions of the ID’s amended (19 U.S.C. 1337), and in Part selectively opening the closures and analysis of the economic prong of the 210 of the Commission’s Rules of slider devices therefor by reason of domestic industry requirement. No Practice and Procedure (19 CFR part infringement of certain claims of U.S. other party petitioned for review of the 210). Patent Nos. 9,505,531 (‘‘the ’531 ID, and no party filed a response to While temporary remote operating patent’’); 9,554,628; and 10,273,058 OUII’s petition. procedures are in place in response to (‘‘the ’058 patent’’) (collectively, the On June 5, 2020, the Commission COVID–19, the Office of the Secretary is ‘‘Asserted Patents’’). Id. at 43616. The determined to review the ID in part with not able to serve parties that have not complaint further alleges that a respect to the ID’s analysis of the domestic industry exists. Id. The economic prong of the DI requirement. retained counsel or otherwise provided Commission’s notice of investigation 85 FR 35662, 35663 (June 11, 2020). The a point of contact for electronic service. names six respondents: Dalian Commission’s notice also requested Accordingly, pursuant to Commission Takebishi Packing Industry Co., Ltd. of written submissions on remedy, the Rules 201.16(a) and 210.7(a)(1) (19 CFR Dalian, China (‘‘Dalian Takebishi’’); public interest, and bonding. Id. In 201.16(a), 210.7(a)(1)), the Commission Dalian Altma Industry Co., Ltd. of particular, the notice requested a orders that the Complainant(s) complete Dalian, Liaoning, China (‘‘Dalian response to certain questions regarding service for any party/parties without a Altma’’) (collectively, the ‘‘Dalian whether Presto seeks cease and desist method of electronic service noted on Respondents’’); and Japan Takebishi orders against the Dalian Respondents. the attached Certificate of Service and Co., Ltd., of Tokyo, Japan; Takebishi Id. On June 11 and 12, 2020, Presto and shall file proof of service on the Co., Ltd., of Shiga, Japan; Shanghai OUII, respectively, filed written Electronic Document Information Takebishi Packing Material Co., Ltd., of submissions in response to the System (EDIS). Shanghai, China; and Qingdao Commission’s notice. On June 19, 2020, By order of the Commission.
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Issued: August 27, 2020. Scope.—For purposes of these surface coating(s) or covers obscures the Lisa Barton, investigations, Commerce has defined grain, textures, or markings of the wood, Secretary to the Commission. the subject merchandise as ‘‘wood whether or not they are ready for use or [FR Doc. 2020–19338 Filed 9–1–20; 8:45 am] mouldings and millwork products that require final machining (e.g., endwork/ BILLING CODE 7020–02–P are made of wood (regardless of wood dado, hinge/strike machining, species), bamboo, laminated veneer weatherstrip or application thereof, lumber (LVL), or of wood and composite mitre) or packaging. INTERNATIONAL TRADE materials (where the composite All wood mouldings and millwork COMMISSION materials make up less than 50 percent products are included within the scope of the total merchandise), and which are even if they are trimmed; cut-to-size; continuously shaped wood or finger- notched; punched; drilled; or have [Investigation Nos. 701–TA–636 and 731– TA–1469–1470 (Final)] jointed or edge-glued moulding or undergone other forms of minor millwork blanks (whether or not processing. Wood Mouldings and Millwork resawn). The merchandise subject to Subject merchandise also includes Products From Brazil and China; these investigations can be continuously wood mouldings and millwork products Scheduling of the Final Phase of shaped along any of its edges, ends, or that have been further processed in a Countervailing Duty and Antidumping faces. third country, including but not limited Duty Investigations The percentage of composite materials to trimming, cutting, notching, contained in a wood moulding or punching, drilling, coating, or any other AGENCY: United States International millwork product is measured by processing that would not otherwise Trade Commission. length, except when the composite remove the merchandise from the scope ACTION: Notice. material is a coating or cladding. Wood of the investigations if performed in the mouldings and millwork products that country of manufacture of the in-scope SUMMARY: The Commission hereby gives are coated or clad, even along their product. notice of the scheduling of the final entire length, with a composite material, Excluded from the scope of these phase of antidumping and but that are otherwise comprised of investigations are countertop/ countervailing duty investigation Nos. wood, LVL, or wood and composite butcherblocks, exterior fencing, exterior 701–TA–636 and 731–TA–1469–1470 materials (where the non-coating decking and exterior siding products (Final) pursuant to the Tariff Act of composite materials make up 50 percent (including solid wood siding, non-wood 1930 (‘‘the Act’’) to determine whether or less of the total merchandise) are siding (e.g., composite or cement), and an industry in the United States is covered by the scope. shingles) that are not LVL or finger materially injured or threatened with The merchandise subject to these jointed; finished and unfinished doors; material injury, or the establishment of investigations consists of wood, LVL, flooring; parts of stair steps (including an industry in the United States is bamboo, or a combination of wood and newel posts, balusters, easing, materially retarded, by reason of composite materials that is continuously gooseneck, risers, treads, rail fittings imports of wood mouldings and shaped throughout its length (with the and stair stringers); picture frame millwork products from Brazil and exception of any endwork/dados), components three feet and under in China, primarily provided for in profiled wood having a repetitive design individual lengths; and lumber whether subheadings 4409.10.40, 4409.10.45, in relief, similar milled wood solid, finger-jointed, or edge-glued. To 4409.10.50, 4409.22.40, 4409.22.50, architectural accessories, such as be excluded from the scope, finger- 4409.29.41, and 4409.29.51 of the rosettes and plinth blocks, and jointed or edge-glued lumber must have Harmonized Tariff Schedule of the fingerjointed or edge-glued moulding or a nominal thickness greater than 1.5 United States, preliminarily determined millwork blanks (whether or not inches and a certification stamp from an by the Department of Commerce resawn). The scope includes American Lumber Standard Committee- (‘‘Commerce’’) to be subsidized and sold continuously shaped wood in the forms certified grading bureau. The exclusion at less-than-fair-value. of dowels, building components such as for lumber whether solid, finger-jointed, or edge-glued does not apply to screen/ DATES: August 12, 2020. interior paneling and jamb parts, and door components such as rails, stiles, ‘‘surfaced on 4 sides’’ (S4S) and/or FOR FURTHER INFORMATION CONTACT: interior and exterior door frames or ‘‘surface 1 side, 2 edges’’ (S1S2E) stock Keysha Martinez (202–205–2136), Office jambs (including split, flat, stop applied, (also called boards) that are finger- of Investigations, U.S. International single- or double-rabbeted), frame or jointed, edge-glued mouldings, or Trade Commission, 500 E Street SW, jamb kits, and packaged door frame trim millwork blanks (whether or not Washington, DC 20436. Hearing- or casing sets, whether or not the door resawn). impaired persons can obtain components are imported as part of a Excluded from the scope of these information on this matter by contacting door kit or set. investigations are all products covered the Commission’s TDD terminal on 202– The covered products may be solid by the scope of the antidumping duty 205–1810. Persons with mobility wood, laminated, finger-jointed, edge- order on Hardwood Plywood from the impairments who will need special glued, face-glued, or otherwise joined in People’s Republic of China. See Certain assistance in gaining access to the the production or remanufacturing Hardwood Plywood Products from the Commission should contact the Office process and are covered by the scope People’s Republic of China: Amended of the Secretary at 202–205–2000. whether imported raw, coated (e.g., Final Determination of Sales at Less General information concerning the gesso, polymer, or plastic), primed, Than Fair Value, and Antidumping Commission may also be obtained by painted, stained, wrapped (paper or Duty Order, 83 FR 504 (January 4, 2018). accessing its internet server (https:// vinyl overlay), any combination of the Excluded from the scope of these www.usitc.gov). The public record for aforementioned surface coatings, investigations are all products covered these investigations may be viewed on treated, or which incorporate rot- by the scope of the antidumping duty the Commission’s electronic docket resistant elements (whether wood or order on Multilayered Wood Flooring (EDIS) at https://edis.usitc.gov. composite). The covered products are from the People’s Republic of China. SUPPLEMENTARY INFORMATION: covered by the scope whether or not any See Multilayered Wood Flooring from
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the People’s Republic of China: hereby waives rule 207.21(b) 1 so that how to participate in and/or view the Amended Final Determination of Sales the final phase of the investigations may hearing, will be posted on the at Less Than Fair Value and proceed concurrently in the event that Commission’s website at https:// Antidumping Duty Order, 76 FR 76690 Commerce makes a final affirmative www.usitc.gov/calendarpad/ (December 8, 2011). determination with respect to such calendar.html. Interested parties should Excluded from the scope of these imports. check the Commission’s website investigations are all products covered Participation in the investigations and periodically for updates. by the scope of the antidumping duty public service list.—Persons, including Requests to appear at the hearing order on Wooden Cabinets and Vanities industrial users of the subject should be filed in writing with the from the People’s Republic of China. merchandise and, if the merchandise is Secretary to the Commission on or See Wooden Cabinets and Vanities and sold at the retail level, representative before December 16, 2020. A nonparty Components Thereof from the People’s consumer organizations, wishing to who has testimony that may aid the Republic of China: Antidumping Duty participate in the final phase of these Commission’s deliberations may request Order, 85 FR 22126 (April 21, 2020). investigations as parties must file an permission to present a short statement Excluded from the scope of these entry of appearance with the Secretary at the hearing. All parties and investigations are all products covered to the Commission, as provided in nonparties desiring to appear at the by the scope of the antidumping duty § 201.11 of the Commission’s rules, no hearing and make oral presentations order on Wooden Bedroom Furniture later than 21 days prior to the hearing should participate in a prehearing from the People’s Republic of China. date specified in this notice. A party conference to be held on December 18, See Notice of Amended Final that filed a notice of appearance during 2020, at the U.S. International Trade Determination of Sales at Less Than the preliminary phase of the Commission Building, if deemed Fair Value and Antidumping Duty investigations need not file an necessary. Oral testimony and written Order: Wooden Bedroom Furniture from additional notice of appearance during materials to be submitted at the public the People’s Republic of China, 70 FR this final phase. The Secretary will hearing are governed by §§ 201.6(b)(2), 329 (January 4, 2005).’’ maintain a public service list containing 201.13(f), and 207.24 of the Background.—The final phase of the names and addresses of all persons, Commission’s rules. Parties must submit these investigations is being scheduled or their representatives, who are parties any request to present a portion of their pursuant to sections 705(b) and 731(b) to the investigations. hearing testimony in camera no later of the Tariff Act of 1930 (19 U.S.C. Limited disclosure of business than 7 business days prior to the date of 1671d(b) and 1673d(b)), as a result of proprietary information (BPI) under an the hearing. affirmative preliminary determinations administrative protective order (APO) Written submissions.—Each party by Commerce that certain benefits and BPI service list.—Pursuant to who is an interested party shall submit which constitute subsidies within the § 207.7(a) of the Commission’s rules, the a prehearing brief to the Commission. meaning of § 703 of the Act (19 U.S.C. Secretary will make BPI gathered in the Prehearing briefs must conform with the 1671b) are being provided to final phase of these investigations provisions of § 207.23 of the manufacturers, producers, or exporters available to authorized applicants under Commission’s rules; the deadline for in China of wood mouldings and the APO issued in the investigations, filing is December 15, 2020. Parties may millwork products, and that such provided that the application is made also file written testimony in connection products are being sold in the United no later than 21 days prior to the with their presentation at the hearing, as States at less than fair value within the hearing date specified in this notice. provided in § 207.24 of the meaning of § 733 of the Act (19 U.S.C. Authorized applicants must represent Commission’s rules, and posthearing 1673b). The investigations were interested parties, as defined by 19 briefs, which must conform with the requested in petitions filed on January U.S.C. 1677(9), who are parties to the provisions of § 207.25 of the 8, 2020, by the Coalition of American investigations. A party granted access to Commission’s rules. The deadline for Millwork Producers (Bright Wood BPI in the preliminary phase of the filing posthearing briefs is December 31, Corporation, Madras, Oregon; Cascade investigations need not reapply for such 2020. In addition, any person who has Wood Products, Inc., White City, access. A separate service list will be not entered an appearance as a party to Oregon; Endura Products, Inc., Colfax, maintained by the Secretary for those the investigations may submit a written North Carolina; Sierra Pacific Industries, parties authorized to receive BPI under statement of information pertinent to Red Bluff, California; Sunset Moulding, the APO. the subject of the investigations, Live Oak, California; Woodgrain Staff report.—The prehearing staff including statements of support or Millwork Inc., Fruitland, Idaho; and report in the final phase of these opposition to the petition, on or before Yuba River Moulding, Yuba City, investigations will be placed in the December 31, 2020. On January 15, California). nonpublic record on December 8, 2020, 2021, the Commission will make For further information concerning and a public version will be issued available to parties all information on the conduct of this phase of the thereafter, pursuant to § 207.22 of the which they have not had an opportunity investigations, hearing procedures, and Commission’s rules. to comment. Parties may submit final rules of general application, consult the Hearing.—The Commission will hold comments on this information on or Commission’s Rules of Practice and a hearing in connection with the final before January 20, 2021, but such final Procedure, part 201, subparts A and B phase of these investigations beginning comments must not contain new factual (19 CFR part 201), and part 207, at 9:30 a.m. on Tuesday, December 22, information and must otherwise comply subparts A and C (19 CFR part 207). 2020. Information about the place and with § 207.30 of the Commission’s rules. Although Commerce has form of the hearing, including about All written submissions must conform preliminarily determined that imports with the provisions of § 201.8 of the of wood mouldings and millwork 1 § 207.21(b) of the Commission’s rules provides Commission’s rules; any submissions products from Brazil are not being and that, where Commerce has issued a negative that contain BPI must also conform with preliminary determination, the Commission will are not likely to be sold in the United publish a Final Phase Notice of Scheduling upon the requirements of §§ 201.6, 207.3, and States at less than fair value, for receipt of an affirmative final determination from 207.7 of the Commission’s rules. The purposes of efficiency the Commission Commerce. Commission’s Handbook on Filing
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Procedures, available on the notice to www.reginfo.gov/public/do/ collection of information that does not Commission’s website at https:// PRAMain. Find this particular display a valid OMB Control Number. www.usitc.gov/documents/handbook_ information collection by selecting See 5 CFR 1320.5(a) and 1320.6. on_filing_procedures.pdf, elaborates ‘‘Currently under 30-day Review—Open DOL seeks PRA authorization for this upon the Commission’s procedures with for Public Comments’’ or by using the information collection for three (3) respect to filings. search function. years. OMB authorization for an ICR Additional written submissions to the Comments are invited on: (1) Whether cannot be for more than three (3) years Commission, including requests the collection of information is without renewal. The DOL notes that pursuant to § 201.12 of the necessary for the proper performance of information collection requirements Commission’s rules, shall not be the functions of the Department, submitted to the OMB for existing ICRs accepted unless good cause is shown for including whether the information will receive a month-to-month extension accepting such submissions, or unless have practical utility; (2) if the while they undergo review. the submission is pursuant to a specific information will be processed and used Agency: DOL–ETA. request by a Commissioner or in a timely manner; (3) the accuracy of Title of Collection: IRAP Program and Commission staff. the agency’s estimates of the burden and Performance Reports for Standards In accordance with §§ 201.16(c) and cost of the collection of information, Recognition Entities. 207.3 of the Commission’s rules, each including the validity of the OMB Control Number: 1205–0NEW. document filed by a party to the methodology and assumptions used; (4) Affected Public: State, Local, and investigations must be served on all ways to enhance the quality, utility and Tribal Governments; Private Sector— other parties to the investigations (as clarity of the information collection; and Businesses or other for-profits and not- identified by either the public or BPI (5) ways to minimize the burden of the for-profit institutions. service list), and a certificate of service collection of information on those who Total Estimated Number of must be timely filed. The Secretary will are to respond, including the use of Respondents: 3,794. not accept a document for filing without automated collection techniques or Total Estimated Number of a certificate of service. other forms of information technology. Responses: 12,447. Authority: These investigations are FOR FURTHER INFORMATION CONTACT: Total Estimated Annual Time Burden: being conducted under authority of title Crystal Rennie by telephone at 202– 111,118 hours. VII of the Tariff Act of 1930; this notice 693–0456, or by email at DOL_PRA_ Total Estimated Annual Other Costs is published pursuant to § 207.21 of the [email protected]. Burden: $0. Commission’s rules. SUPPLEMENTARY INFORMATION: This (Authority: 44 U.S.C. 3507(a)(1)(D)) By order of the Commission. information collection is authorized Crystal Rennie, under the National Apprenticeship Act Issued: August 28, 2020. Acting Departmental Clearance Officer. Lisa Barton, (29 U.S.C. 50). This data collection [FR Doc. 2020–19339 Filed 9–1–20; 8:45 am] Secretary to the Commission. includes two reports for Standards BILLING CODE 4510–FR–P [FR Doc. 2020–19368 Filed 9–1–20; 8:45 am] Recognition Entities (SREs): (1) A program report which is required within BILLING CODE 7020–02–P 30 days of recognizing a new program or changing the status of a current NUCLEAR REGULATORY program; and (2) a performance report COMMISSION DEPARTMENT OF LABOR which is required on an annual basis for [Docket No. 11005620; NRC–2020–0105] Office of the Secretary each Industry-Recognized Apprenticeship Program (IRAP) they Energy Solutions Services, Inc. Agency Information Collection recognize. The information collected in Activities; Submission for OMB these reports is aligned with the AGENCY: Nuclear Regulatory Review; Comment Request; IRAP amendments to 29 CFR part 29, as set Commission. Program and Performance Reports for forth in subpart B. Pursuant to ACTION: Export license amendment Standards Recognition Entities § 29.22(h), SREs are required to report application; opportunity to provide data that will reflect the outcomes of the comment, request a hearing, and ACTION: Notice of availability; request IRAPs it has recognized. Section petition for leave to intervene. for comments. 29.22(h) also requires SREs to make publicly available certain data about SUMMARY: The U.S. Nuclear Regulatory SUMMARY: The Department of Labor IRAPs and performance outcomes, Commission (NRC) received and is (DOL) is submitting this Employment which it must submit to the Department. considering an application (XW010/04) and Training Administration (ETA)- For additional substantive information from EnergySolutions Services, Inc. sponsored information collection about this ICR, see the related notice (ESSI) to amend and renew an existing request (ICR) to the Office of published in the Federal Register on license authorizing the export of Management and Budget (OMB) for May 26, 2020 (85 FR 31551). radioactive waste to Canada. The NRC is review and approval in accordance with This information collection is subject providing notice of the opportunity to the Paperwork Reduction Act of 1995 to the PRA. A Federal agency generally submit written comments, request a (PRA). Public comments on the ICR are cannot conduct or sponsor a collection hearing, or a petition for leave to invited. of information, and the public is intervene on ESSI’s application. DATES: The OMB will consider all generally not required to respond to an DATES: Submit comments by October 2, written comments that agency receives information collection, unless the OMB 2020. Comments received after this date on or before October 2, 2020. approves it and displays a currently will be considered if it is practical to do ADDRESSES: Written comments and valid OMB Control Number. In addition, so, but the Commission is able to ensure recommendations for the proposed notwithstanding any other provisions of consideration only for comments information collection should be sent law, no person shall generally be subject received before this date. A request for within 30 days of publication of this to penalty for failing to comply with a a hearing or a petition for leave to
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intervene must be filed by October 2, ADAMS Public Documents collection at radioactive material/waste and 2020. https://www.nrc.gov/reading-rm/ increasing the weight of radioactive ADDRESSES: You may submit comments adams.html. To begin the search, select material/waste exported to Canada; (2) by any of the following methods: ‘‘Begin Web-based ADAMS Search.’’ For adding to the export license the • Federal Rulemaking website: Go to problems with ADAMS, please contact authorization to export primary heat https://www.regulations.gov and search the NRC’s Public Document Room transfer pumps back to Canada if they for Docket ID NRC–2020–0105. Address reference staff at 1–800–397–4209, 301– are deemed unrepairable and questions about Docket IDs in 415–4737, or by email to pdr.resource@ categorized as waste for disposal in Regulations.gov to Jennifer Borges; nrc.gov. The export license amendment Canada if not processed for metal melt application from ESSI is available in telephone: 301–287–9127; email: recycle; and (3) extending the license ADAMS under Accession No. [email protected]. For technical expiration date to December 31, 2026. ML20211L826. questions contact the individual listed The NRC is providing notice of the in the FOR FURTHER INFORMATION B. Submitting Comments receipt of the application; providing the CONTACT section of this document. opportunity to submit written • Please include Docket ID NRC–2020– Email comments to: 0105 or Docket No. 11005620 in your comments concerning the application; [email protected]. If you do not comment submission. and providing the opportunity to receive an automatic email reply The NRC cautions you not to include request a hearing or petition for leave to confirming receipt, then contact us at identifying or contact information that intervene for a period of 30 days after 301–415–1677. you do not want to be publicly publication of this notice in the Federal • Fax comments to: Secretary, U.S. disclosed in your comment submission. Register. A hearing request or petition Nuclear Regulatory Commission at 301– The NRC will post all comment for leave to intervene must include the 415–1101. submissions at https:// information specified in 10 CFR • Mail comments to: Secretary, U.S. www.regulations.gov as well as enter the 110.82(b). Any request for hearing or Nuclear Regulatory Commission, comment submissions into ADAMS. petition for leave to intervene shall be Washington, DC 20555–0001, ATTN: The NRC does not routinely edit served by the requestor or petitioner in Rulemakings and Adjudications Staff. comment submissions to remove accordance with 10 CFR 110.89(a), For additional direction on obtaining identifying or contact information. either by delivery, by mail, or filed with information and submitting comments, If you are requesting or aggregating the NRC electronically in accordance see ‘‘Obtaining Information and comments from other persons for with NRC’s E-Filing rule (72 FR 49139; Submitting Comments’’ in the submission to the NRC, then you should August 28, 2007, as amended at 77 FR SUPPLEMENTARY INFORMATION section of inform those persons not to include 46562, August 3, 2012). Information this document. identifying or contact information that about filing electronically is available FOR FURTHER INFORMATION CONTACT: they do not want to be publicly on the NRC’s public website at https:// Stephen C. Baker, Office of International disclosed in their comment submission. www.nrc.gov/site-help/e- Programs, U.S. Nuclear Regulatory Your request should state that the NRC submittals.html. Commission, Washington, DC 20555– does not routinely edit comment To ensure timely electronic filing, at 0001, telephone: 301–287–9059, email: submissions to remove such information least 10 days prior to the filing deadline, [email protected]. before making the comment the petitioner/requestor should contact SUPPLEMENTARY INFORMATION: submissions available to the public or the Office of the Secretary by email at entering the comment into ADAMS. [email protected], or by calling I. Obtaining Information and 301–415–1677, to (1) request a digital Submitting Comments II. Discussion In accordance with section 110.70(b) identification (ID) certificate, which A. Obtaining Information of title 10 of the Code of Federal allows the participant (or its counsel or Please refer to NRC–2020–0198 or Regulations (10 CFR), the NRC is representative) to digitally sign Docket No. 11005620 when contacting providing notice of an application submissions and access the E-Filing the NRC about the availability of (XW010/04), submitted by ESSI on July system for any proceeding in which it information for this action. You may 28, 2020, to amend and renew an is participating; and (2) advise the obtain publicly-available information existing export license authorizing the Secretary that the participant will be related to this action by the following export of Canadian-origin radioactive submitting a petition or other methods: waste from ESSI processing facilities in adjudicatory document (even in • Federal Rulemaking Website: Go to the State of Tennessee to Canada. The instances in which the participant, or its https://www.regulations.gov and search existing export license (XW010/03), counsel or representative, already holds for Docket ID NRC–2020–0186. which expires on December 31, 2020, an NRC-issued digital ID certificate). • NRC’s Public Website: Go to https:// authorizes the export of up to 10,000 Based upon this information, the www.nrc.gov and search for XW010/04, tons of low-level radioactive waste, Secretary will establish an electronic Docket No. 11005620, or Docket ID previously imported from Canada, docket for the hearing in this proceeding NRC–2020–0105. resulting from the incineration of heath if the Secretary has not already • NRC’s Agencywide Documents ash non-conforming materials. The established an electronic docket. Access and Management System application requests: (1) Renewing the The information concerning this (ADAMS): You may obtain publicly- cumulative radioactivity limits for application for an export license available documents online in the XW010 of the total quantities of amendment follows.
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NRC EXPORT LICENSE AMENDMENT/RENEWAL APPLICATION
Application Information
Name of Applicant ...... EnergySolutions Services, Inc. Date of Application ...... July 14, 2020. Date Received ...... July 28, 2020. Application No...... XW010/04. Docket No...... 11005620. ADAMS Accession No...... ML20211L826.
Description of Material
Material Type ...... Mixed waste consisting of mixed hazardous and radioactive waste constituents, contaminated recyclable resource material/waste such as lead bricks or sheet as necessary. Total Quantity 1 ...... Authorization to export a total maximum quantity of 380.064 TBq, based on the maximum activity authorized for possession at Energy Solutions Canada, Inc. ES Walker Operations as follows: H-3: 14.8 TBq, C-14: 7.4 Tbq, Ra-226: 0.74 TBq, Th-232: 0.74 TBq, Po-210: 0.37 TBq, Uranium (natural or depleted): 7.4 TBq, Uranium (not U-233, U-235 or U-238): 0.07 TBq, Atomic number 3 to 83: 29.6 TBq, Atomic number 84 to 91 (total): 0.09, Transuranics (TRU): 0.09 TBq, Am-241: 9.3 TBq, Fe-55: 37 TBq, and Special Nuclear Material (SNM), 235U equivalent: 350 grams.2 End Use ...... Return of non-conforming waste and/or waste resulting from processing materials for appropriate disposition. The amendment requests: (1) Renewing the radioactive limits for XW010 of the total quantities of radioactive material/waste and weights ex- ported to Canada; (2) adding authorization to export primary heat transfer pumps back to Canada if they are deemed unrepairable and categorized as waste for disposal in Canada if not processed for metal melt recycle; and (3) extending the license expiration date to December 31, 2026. Country of Destination ...... Canada. 1 The permit activity limits are the cumulative total maximums over the term of the permit. 2 Uranium 235 gram equivalent by weight of 350 grams (ESSI will not import enrichment level that exceed 20% by weight U-235)
Dated: August 27, 2020. Wednesday, September 9, 2020 Thursday, September 10, 2020 For the Nuclear Regulatory Commission. 9:30 a.m.–9:35 a.m.: Opening 9:35 a.m.–11:00 a.m.: Staff White David L. Skeen, Remarks by the ACRS Chairman Paper on 10 CFR part 53 Advanced Deputy Director, Office of International (Open)—The ACRS Chairman will make Notice of Proposed Rulemaking Programs. opening remarks regarding the conduct (Open)—The Committee will have [FR Doc. 2020–19404 Filed 9–1–20; 8:45 am] of the meeting. presentations and discussion with the BILLING CODE 7590–01–P NRC staff regarding the subject topic. 9:35 a.m.–6:00 p.m.: Preparation of 11:15 a.m.–1:30 p.m.: GEH Topical ACRS Reports (Open/Closed)—The Report NEDC–3391P, ‘‘BWRX–300 NUCLEAR REGULATORY Committee will have a discussion of the Reactor Vessel and Overpressure COMMISSION proposed ACRS report on observations Protection’’ (Open/Closed)—The and lessons-learned from ACRS Committee will have presentations and Revised 678th Meeting of the Advisory licensing review for future applications discussion with GEH and the NRC staff Committee on Reactor Safeguards including the NuScale design regarding the subject topic. [NOTE: (ACRS) certification application review. [NOTE: Pursuant to 5 U.S.C 552b(c)(4), a Pursuant to 5 U.S.C 552b(c)(4), a portion of this session may be closed in In accordance with the purposes of portion of this session may be closed in order to discuss and protect Sections 29 and 182b of the Atomic order to discuss and protect information designated as proprietary.] Energy Act (42 U.S.C. 2039, 2232b), the information designated as proprietary.] 2:30 p.m.–4:00 p.m.: Topical Report Advisory Committee on Reactor [NOTE: Pursuant to 5 U.S.C. ANP–10337, Supplement 1, ‘‘Deformer Safeguards (ACRS) will hold meetings 552b(c)(2) and (6), a portion of this Spacer Grid Element’’ (Open/Closed)— on September 9–12, 2020. As part of the meeting may be closed to discuss The Committee will have presentations and discussion with the NRC staff coordinated government response to organizational and personnel matters regarding the subject topic. [NOTE: combat the COVID–19 public health that relate solely to internal personnel Pursuant to 5 U.S.C 552b(c)(4), a emergency, the Committee will conduct rules and practices of the ACRS, and virtual meetings. The public will be able portion of this session may be closed in information the release of which would order to discuss and protect to participate in any open sessions via constitute a clearly unwarranted 1–866–822–3032, pass code 8272423#. information designated as proprietary.]. invasion of personal privacy.] 4:15 p.m.–6:15 p.m.: Preparation of ACRS Reports (Open/Closed)—The
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Committee will continue its discussion published in the Federal Register on Note: The revision of this FRN is due to the of proposed ACRS reports. [NOTE: June 13, 2019 (84 FR 27662). In addition of the sessions on Wednesday, Pursuant to 5 U.S.C 552b(c)(4), a accordance with those procedures, oral September 9, 2020. portion of this session may be closed in or written views may be presented by Dated: August 28, 2020. order to discuss and protect members of the public, including information designated as proprietary.] representatives of the nuclear industry. Russell E. Chazell, Persons desiring to make oral statements Federal Advisory Committee Management Friday, September 11, 2020 should notify Quynh Nguyen, Cognizant Officer, Office of the Secretary. 9:30 a.m.–10:30 a.m.: Future ACRS ACRS Staff and the Designated Federal [FR Doc. 2020–19408 Filed 9–1–20; 8:45 am] Activities/Report of the Planning and Official (DFO) (Telephone: 301–415– BILLING CODE 7590–01–P Procedures Subcommittee and 5844, Email: [email protected]), 5 Reconciliation of ACRS Comments and days before the meeting, if possible, so Recommendations/Preparation of that appropriate arrangements can be Reports (Open/Closed)—The Committee made to allow necessary time during the SECURITIES AND EXCHANGE will hear discussion of the meeting for such statements. In view of COMMISSION recommendations of the Planning and the possibility that the schedule for Procedures Subcommittee regarding ACRS meetings may be adjusted by the [Investment Company Act Release No. items proposed for consideration by the Chairman as necessary to facilitate the 33998, File No. 812–15123] Full Committee during future ACRS conduct of the meeting, persons meetings, and/or proceed to preparation planning to attend should check with Spinnaker ETF Series, et al. of reports as determined by the the Cognizant ACRS staff if such August 28, 2020. Chairman. [NOTE: Pursuant to 5 U.S.C. rescheduling would result in major 552b(c)(2) and (6), a portion of this inconvenience. AGENCY: Securities and Exchange meeting may be closed to discuss An electronic copy of each Commission (‘‘Commission’’). organizational and personnel matters presentation should be emailed to the ACTION: Notice. that relate solely to internal personnel Cognizant ACRS Staff at least one day rules and practices of the ACRS, and before meeting. information the release of which would Notice of an application for an order In accordance with Subsection 10(d) under section 6(c) of the Investment constitute a clearly unwarranted of Public Law 92–463 and 5 U.S.C. invasion of personal privacy.] Company Act of 1940 (‘‘Act’’) for an 552b(c), certain portions of this meeting exemption from sections 2(a)(32), [NOTE: Pursuant to 5 U.S.C may be closed, as specifically noted 552b(c)(4), a portion of this session may 5(a)(1), 22(d) and 22(e) of the Act and above. Use of still, motion picture, and rule 22c–1 under the Act, under be closed in order to discuss and television cameras during the meeting protect information designated as sections 6(c) and 17(b) of the Act for an may be limited to selected portions of exemption from sections 17(a)(1) and proprietary.] the meeting as determined by the 10:30 a.m.–12:30 p.m.: Future 17(a)(2) of the Act, and under section Chairman. Electronic recordings will be Focused Research Projects (Open)—The 12(d)(1)(J) of the Act for an exemption permitted only during the open portions Committee will have presentations and from sections 12(d)(1)(A) and of the meeting. discussion with the NRC staff regarding 12(d)(1)(B) of the Act. ACRS meeting agendas, meeting the subject topic. Applicants: Spinnaker ETF Series (the transcripts, and letter reports are 1:30 p.m.–6:00 p.m.: Preparation of ‘‘Trust’’), OBP Capital LLC (the available through the NRC Public ACRS Reports (Open/Closed)—The ‘‘Adviser’’) and Capital Investment Document Room at pdr.resource@ Committee will continue its discussion Group, Inc. (the ‘‘Distributor’’). of proposed ACRS reports. [NOTE: nrc.gov, or by calling the PDR at 1–800– 397–4209, or from the Publicly Summary of Application: Applicants Pursuant to 5 U.S.C 552b(c)(4), a request an order (‘‘Order’’) that permits: portion of this session may be closed in Available Records System (PARS) component of NRC’s document system (a) The Funds (defined below) to issue order to discuss and protect shares (‘‘Shares’’) redeemable in large information designated as proprietary.] (ADAMS) which is accessible from the NRC website at http://www.nrc.gov/ aggregations only (‘‘creation units’’); (b) Saturday, September 12, 2020 reading-rm/adams.html or http:// secondary market transactions in Shares 9:30 a.m.–2:00 p.m.: Preparation of www.nrc.gov/reading-rm/doc- to occur at negotiated market prices ACRS Reports (Open/Closed)—The collections/#ACRS/. rather than at net asset value; (c) certain Committee will continue its discussion Video teleconferencing service is Funds to pay redemption proceeds, of proposed ACRS reports. [NOTE: available for observing open sessions of under certain circumstances, more than Pursuant to 5 U.S.C 552b(c)(4), a ACRS meetings. Those wishing to use seven days after the tender of Shares for portion of this session may be closed in this service should contact Thomas redemption; (d) certain affiliated order to discuss and protect Dashiell, ACRS Audio Visual persons of a Fund to deposit securities information designated as proprietary.] Technician (301–415–7907), between into, and receive securities from, the [NOTE: Pursuant to 5 U.S.C. 7:30 a.m. and 3:45 p.m. (ET), at least 10 Fund in connection with the purchase 552b(c)(2) and (6), portions of this days before the meeting to ensure the and redemption of creation units; and meeting may be closed to discuss availability of this service. Individuals (e) certain registered management organizational and personnel matters or organizations requesting this service investment companies and unit that relate solely to internal personnel will be responsible for telephone line investment trusts outside of the same rules and practices of the ACRS, and charges and for providing the group of investment companies as the information the release of which would equipment and facilities that they use to Funds to acquire Shares of the Funds. constitute a clearly unwarranted establish the video teleconferencing The Order would incorporate by invasion of personal privacy.] link. The availability of video reference terms and conditions of a Procedures for the conduct of and teleconferencing services is not previous order granting the same relief participation in ACRS meetings were guaranteed. sought by applicants, as that order may
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be amended from time to time 2. The Adviser, a North Carolina included in the term ‘‘Adviser’’); (b) (‘‘Reference Order’’).1 limited liability company, will be the offers exchange-traded shares utilizing Filing Date: The application was filed investment adviser to the Initial Fund. active management investment on April 16, 2020 and amended on July Subject to approval by the Fund’s board strategies as contemplated by the 22, 2020. of trustees, the Adviser (as defined Reference Order; and (c) complies with Hearing or Notification of Hearing: An below) will serve as investment adviser the terms and conditions of the Order order granting the requested relief will to each Fund. The Adviser is, and any and of the Reference Order, which is be issued unless the Commission orders other Adviser will be, registered as an incorporated by reference into the Order a hearing. Interested persons may investment adviser under the (each such company or series and the request a hearing by emailing the Investment Advisers Act of 1940 Initial Fund, a ‘‘Fund’’).4 Commission’s Secretary at Secretarys- (‘‘Advisers Act’’). The Adviser may [email protected] and serving applicants enter into sub-advisory agreements with 6. Section 6(c) of the Act provides that with a copy of the request by email. other investment advisers to act as sub- the Commission may exempt any Hearing requests should be received by advisers with respect to the Funds (each person, security or transaction, or any the Commission by 5:30 p.m. on a ‘‘Sub-Adviser’’). Any Sub-Adviser to a class of persons, securities or September 22, 2020, and should be Fund will be registered under the transactions, from any provisions of the accompanied by proof of service on Advisers Act. Act, if and to the extent that such applicants, in the form of an affidavit or, 3. The Distributor is a North Carolina exemption is necessary or appropriate for lawyers, a certificate of service. corporation and a broker-dealer in the public interest and consistent Pursuant to rule 0–5 under the Act, registered under the Securities with the protection of investors and the hearing requests should state the nature Exchange Act of 1934, as amended, and purposes fairly intended by the policy of the writer’s interest, any facts bearing will act as the principal underwriter of and provisions of the Act. Section 17(b) upon the desirability of a hearing on the Shares of the Funds. Applicants request of the Act authorizes the Commission to that the requested relief apply to any matter, the reason for the request, and exempt a proposed transaction from distributor of Shares, whether affiliated the issues contested. Persons who wish section 17(a) of the Act if evidence to be notified of a hearing may request or unaffiliated with the Adviser and/or Sub-Adviser (included in the term establishes that the terms of the notification by emailing the transaction, including the consideration Commission’s Secretary at Secretarys- ‘‘Distributor’’). Any Distributor will to be paid or received, are reasonable [email protected]. comply with the terms and conditions and fair and do not involve ADDRESSES: of the Order. The Commission: overreaching on the part of any person [email protected]. Applicants: Applicants’ Requested Exemptive Relief concerned, and the transaction is c/o Tracie Coop, Secretary, Spinnaker 4. Applicants seek the requested consistent with the policies of the ETF Series, [email protected]. Order under section 6(c) of the Act for registered investment company and the FOR FURTHER INFORMATION CONTACT: an exemption from sections 2(a)(32), general purposes of the Act. Section Laura J. Riegel, Senior Counsel, at (202) 5(a)(1), 22(d) and 22(e) of the Act and 12(d)(1)(J) of the Act provides that the 551–3038 or Trace W. Rakestraw, rule 22c–1 under the Act, under Branch Chief, at (202) 551–6825 Commission may exempt any person, sections 6(c) and 17(b) of the Act for an security, or transaction, or any class of (Division of Investment Management, exemption from sections 17(a)(1) and Chief Counsel’s Office). persons, securities or transactions, from 17(a)(2) of the Act, and under section any provision of section 12(d)(1) if the SUPPLEMENTARY INFORMATION: The 12(d)(1)(J) of the Act for an exemption exemption is consistent with the public following is a summary of the from sections 12(d)(1)(A) and interest and the protection of investors. application. The complete application 12(d)(1)(B) of the Act. The requested may be obtained via the Commission’s Order would permit applicants to offer Applicants submit that for the reasons website by searching for the file Funds that utilize the NYSE Proxy stated in the Reference Order the number, or for an applicant using the Portfolio Methodology. Because the requested relief meets the exemptive Company name box, at http:// relief requested is the same as the relief standards under sections 6(c), 17(b) and www.sec.gov/search/search.htm or by granted by the Commission under the 12(d)(1)(J) of the Act. calling (202) 551–8090. Reference Order and because the For the Commission, by the Division of Applicants Adviser has entered into a licensing Investment Management, pursuant to agreement with NYSE Group, Inc. in delegated authority. 1. The Trust is a statutory trust order to offer Funds that utilize the Jill M. Peterson, organized under the laws of Delaware NYSE Proxy Portfolio Methodology,3 Assistant Secretary. and will consist of one or more series the Order would incorporate by operating as a Fund. The Trust is reference the terms and conditions of [FR Doc. 2020–19427 Filed 9–1–20; 8:45 am] registered as an open-end management the Reference Order. BILLING CODE 8011–01–P investment company under the Act. 5. Applicants request that the Order Applicants seek relief with respect to apply to the Initial Fund and to any Funds (as defined below), including an other existing or future registered open- initial Fund (the ‘‘Initial Fund’’). The end management investment company Funds will offer exchange-traded shares or series thereof that: (a) Is advised by utilizing active management investment the Adviser or any entity controlling, strategies as contemplated by the controlled by, or under common control Reference Order.2 with the Adviser (any such entity 4 All entities that currently intend to rely on the 1 Natixis ETF Trust II, et al., Investment Company cash that, while different from the Fund’s portfolio, Order are named as applicants. Any other entity Act Rel. Nos. 33684 (November 14, 2019) (notice) is designed to closely track its daily performance. that relies on the Order in the future will comply and 33711 (December 10, 2019) (order). 3 The NYSE Proxy Portfolio Methodology (as with the terms and conditions of the Order and of 2 To facilitate arbitrage, among other things, each defined in the Reference Order) is the intellectual the Reference Order, which is incorporated by day a Fund will publish a basket of securities and property of the NYSE Group, Inc. reference into the Order.
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SECURITIES AND EXCHANGE of the writer’s interest, any facts bearing reliance on the Order. ‘‘Potential Co- COMMISSION upon the desirability of a hearing on the Investment Transaction’’ means any matter, the reason for the request, and investment opportunity in which a [Investment Company Act Release No. the issues contested. Persons who wish Regulated Fund (or its Wholly-Owned 33958A; File No. 812–15057] to be notified of a hearing may request Investment Sub) could not participate Morgan Stanley Direct Lending Fund, notification by emailing the together with one or more Affiliated et al. Commission’s Secretary. Funds and/or one or more other ADDRESSES: The Commission: Regulated Funds (or its Wholly-Owned August 28, 2020. [email protected]. Applicants: Investment Sub) without obtaining and AGENCY: Securities and Exchange Mr. Mustufa Salehbhai, Executive relying on the Order.3 Commission (‘‘Commission’’). Director, Mustufa.Salehbhai@ Applicants ACTION: Notice. morganstanley.com. 2. MS BDC is a non-diversified, Notice of application for an order FOR FURTHER INFORMATION CONTACT: Jean closed-end management investment under sections 17(d) and 57(i) of the E. Minarick, Senior Counsel, at (202) company incorporated in Delaware that Investment Company Act of 1940 (the 551–6811 or Kaitlin C. Bottock, Branch will elect to be regulated as a BDC under ‘‘Act’’) and rule 17d–1 under the Act to Chief, at (202) 551–6825 (Division of the Act.4 The Board 5 of MS BDC permit certain joint transactions Investment Management, Chief currently consist of six directors, four of otherwise prohibited by sections 17(d) Counsel’s Office). whom are Independent Directors.6 and 57(a)(4) of the Act and rule 17d–1 SUPPLEMENTARY INFORMATION: The 3. MS Adviser, a corporation under under the Act. following is a summary of the the laws of the state of Delaware, is Summary of Application: Applicants application. The complete application registered with the Commission as an request an order to permit certain may be obtained via the Commission’s investment adviser under the Advisers business development companies website by searching for the file Act. MS Adviser is a wholly-owned (‘‘BDCs’’) and closed-end management number, or for an applicant using the subsidiary of Morgan Stanley, a global investment companies to co-invest in Company name box, at http:// financial services firm that through its portfolio companies with each other and www.sec.gov/search/search.htm or by subsidiaries and affiliates, advises, with certain affiliated funds. calling (202) 551–8090. originates, trades, manages and Applicants: Morgan Stanley Direct Introduction distributes capital for governments, Lending Fund (‘‘MS BDC’’), MS Capital institutions and individuals. Morgan Partners Adviser Inc. (‘‘MS Adviser’’), 1. The applicants request an order of Stanley is a bank holding company NH Credit Partners III Holdings L.P., NH the Commission under sections 17(d) structured as a Delaware corporation Expansion Credit Fund Holdings LP, and 57(i) of the Act and rule 17d–1 that controls the MS Adviser. North Haven Credit Partners II L.P., thereunder (the ‘‘Order’’) to permit, 4. MS BDC Sub is a wholly-owned North Haven Credit Partners III L.P., subject to the terms and conditions set subsidiary of MS BDC formed North Haven Senior Loan Fund (ALMA) forth in the application (the specifically for the purpose of procuring 1 Designated Activity Company, North ‘‘Conditions’’), a Regulated Fund and financing or otherwise holding Haven Senior Loan Fund L.P., North one or more other Regulated Funds and/ investments. 2 Haven Senior Loan Fund Offshore L.P., or one or more Affiliated Funds to 5. Applicants state that a Regulated North Haven Senior Loan Fund enter into Co-Investment Transactions Fund may, from time to time, form one Unleveraged Offshore L.P., North Haven with each other. ‘‘Co-Investment or more Wholly-Owned Investment Tactical Value Fund (AIV) LP, North Transaction’’ means any transaction in Subs.7 Such a subsidiary may be Haven Tactical Value Fund LP, North which a Regulated Fund (or its Wholly- Haven Unleveraged Senior Loan Fund Owned Investment Sub (as defined 3 All existing entities that currently intend to rely (Yen) L.P., NH Senior Loan Fund below)) participated together with one on the Order have been named as applicants and or more Affiliated Funds and/or one or any existing or future entities that may rely on the Offshore Holdings L.P., NH Senior Loan Order in the future will comply with its terms and Fund Onshore Holdings LLC, and DLF more other Regulated Funds (or its Conditions set forth in the application. CA SPV LLC (‘‘MS BDC Sub’’). Wholly-Owned Investment Sub) in 4 Section 2(a)(48) defines a BDC to be any closed- Filing Dates: The application was end investment company that operates for the 1 ‘‘Regulated Funds’’ means MS BDC and the purpose of making investments in securities filed on August 9, 2019, and amended Future Regulated Funds. ‘‘Future Regulated Fund’’ described in section 55(a)(1) through 55(a)(3) and on December 20, 2019, April 3, 2020, means a closed-end management investment makes available significant managerial assistance May 21, 2020, and August 27, 2020. company (a) that is registered under the Act or has with respect to the issuers of such securities. 5 HEARING OR NOTIFICATION OF HEARING: elected to be regulated as a BDC, (b) whose ‘‘Board’’ means the board of directors (or the investment adviser (and sub-adviser, if any) is an equivalent) of a Regulated Fund. An order granting the requested relief Adviser, and (c) that intends to participate in the 6 ‘‘Independent Director’’ means a member of the will be issued unless the Commission Co-investment Program. Board of any relevant entity who is not an orders a hearing. Interested persons may ‘‘Adviser’’ means the MS Adviser, together with ‘‘interested person’’ as defined in section 2(a)(19) of request a hearing by emailing the any future investment adviser that (a) is controlled the Act. No Independent Director of a Regulated by the MS Adviser, (b) (i) is registered as an Fund (including any non-interested member of an Commission’s Secretary at Secretarys- investment adviser under the Investment Advisers Independent Party) will have a financial interest in [email protected] and serving applicants Act of 1940 (‘‘Advisers Act’’) or (ii) is a relying any Co-Investment Transaction, other than with a copy of the request by email. adviser of an investment adviser that is registered indirectly through share ownership in one of the Hearing requests should be received by under the Advisers Act, and that is controlled by Regulated Funds. the MS Adviser, and (c) is not a Regulated Fund or 7 ‘‘Wholly-Owned Investment Sub’’ means the MS the Commission by 5:30 p.m. on a subsidiary of a Regulated Fund. BDC Sub or an entity (i) that is wholly-owned by September 17, 2020, and should be 2 ‘‘Affiliated Fund’’ means any entity (a) whose a Regulated Fund (with such Regulated Fund at all accompanied by proof of service on investment adviser (and sub-adviser(s), if any) is an times holding, beneficially and of record, 100% or applicants, in the form of an affidavit or, Adviser, (b) that either (i) would be an investment more of the voting and economic interests); (ii) company but for section 3(c)(1) or 3(c)(7) of the Act whose sole business purpose is to hold one or more for lawyers, a certificate of service. or (ii) relies on rule 3a–7 under the Act, and (c) that investments on behalf of such Regulated Fund (and Pursuant to rule 0–5 under the Act, intends to participate in the Co-Investment in the case of an SBIC Subsidiary, maintain a hearing requests should state the nature Program. license under the Small Business Investment Act of
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prohibited from investing in a Co- then-current Objectives and Strategies 8 Investment Transaction, the Adviser, Investment Transaction with a and any Board-Established Criteria 9 of a working through the applicable Regulated Fund (other than its parent) Regulated Fund, the policies and portfolio manager, or in conjunction or any Affiliated Fund because it would procedures will require that the relevant with any applicable Investment Team or be a company controlled by its parent portfolio managers, as well as the teams Investment Committee, will approve an Regulated Fund for purposes of section and committees of portfolio managers, investment amount. Prior to the 57(a)(4) and rule 17d–1. Applicants analysts and senior management External Submission (as defined below), request that each Wholly-Owned (‘‘Investment Teams’’ and ‘‘Investment each proposed order amount may be Investment Sub be permitted to Committees’’) responsible for that reviewed and adjusted, in accordance participate in Co-Investment Regulated Fund receive sufficient with the applicable Advisers’ written Transactions in lieu of the Regulated information to allow the Regulated allocation policies and procedures, by Fund that owns it and that the Wholly- Fund’s Adviser to make its independent the Morgan Stanley Private Credit Owned Investment Sub’s participation determination and recommendations Allocation Committee, on which senior in any such transaction be treated, for under the Conditions. The Adviser to management and the Adviser’s chief purposes of the Order, as though the each applicable Regulated Fund, compliance officer participate.10 The parent Regulated Fund were working through the applicable order of a Regulated Fund or Affiliated participating directly. portfolio manager, or in conjunction Fund resulting from this process is with any applicable Investment Team or referred to as its ‘‘Internal Order.’’ The Applicants’ Representations Investment Committee, will then make Internal Order will be submitted for A. Allocation Process an independent determination of the approval by the Required Majority of appropriateness of the investment for any participating Regulated Funds in 6. Applicants represent that the the Regulated Fund in light of the accordance with the Conditions.11 Adviser will establish processes for Regulated Fund’s then-current 9. If the aggregate Internal Orders for allocating initial investment circumstances. If the Adviser to a a Potential Co-Investment Transaction opportunities, opportunities for Regulated Fund deems the Regulated do not exceed the size of the investment subsequent investments in an issuer and Fund’s participation in such Potential opportunity immediately prior to the dispositions of securities holdings Co-Investment Transaction to be submission of the orders to the reasonably designed to treat all clients appropriate, then it will, working underwriter, broker, dealer or issuer, as fairly and equitably. Further, applicants through the applicable portfolio applicable (the ‘‘External Submission’’), represent that these processes will be manager, or in conjunction with any then each Internal Order will be extended and modified in a manner applicable Investment Team or fulfilled as placed. If, on the other hand, reasonably designed to ensure that the Investment Committee, formulate a the aggregate Internal Orders for a additional transactions permitted under recommendation regarding the proposed Potential Co-Investment Transaction the Order will both (i) be fair and order amount for the Regulated Fund. exceed the size of the investment equitable to the Regulated Funds and 8. Applicants state that, for each opportunity immediately prior to the the Affiliated Funds and (ii) comply Regulated Fund and Affiliated Fund External Submission, then the allocation with the Conditions. whose Adviser recommends of the opportunity will be made pro rata participating in a Potential Co- on the basis of the size of the Internal 7. Opportunities for Potential Co- Orders.12 If, subsequent to such External Investment Transactions may arise 8 ‘‘Objectives and Strategies’’ means (i) with Submission, the size of the opportunity when investment advisory personnel of respect to any Regulated Fund, its investment is increased or decreased, or if the terms an Adviser becomes aware of objectives and strategies, as described in its most current filings with the Commission under the of such opportunity, or the facts and investment opportunities that may be Securities Act of 1933 (‘‘Securities Act’’) or under circumstances applicable to the appropriate for one or more Regulated the Securities Exchange Act of 1934, and the Act, Regulated Funds’ or the Affiliated Funds and/or one or more Affiliated and its most current report to stockholders. Funds’ consideration of the opportunity, Funds. If the requested Order is granted, 9 ‘‘Board-Established Criteria’’ means criteria that change, the participants will be the Adviser will establish, maintain and the Board of a Regulated Fund may establish from time to time to describe the characteristics of implement policies and procedures Potential Co-Investment Transactions regarding 10 The reason for any such adjustment to a reasonably designed to ensure that, which the Adviser to the Regulated Fund should be proposed order amount will be documented in when such opportunities arise, the notified under Condition 1. The Board-Established writing and preserved in the records of each Criteria will be consistent with the Regulated Adviser. Advisers to the relevant Regulated Fund’s Objectives and Strategies. If no Board- 11 ‘‘Required Majority’’ means a required Funds are promptly notified and receive Established Criteria are in effect, then the Regulated majority, as defined in section 57(o) of the Act. In the same information about the Fund’s Adviser will be notified of all Potential Co- the case of a Regulated Fund that is a registered opportunity as any other Advisers Investment Transactions that fall within the closed-end fund, the Board members that make up Regulated Fund’s then-current Objectives and the Required Majority will be determined as if the considering the opportunity for their Strategies. Board-Established Criteria will be Regulated Fund were a BDC subject to section 57(o). clients. In particular, consistent with objective and testable, meaning that they will be 12 The Advisers will maintain records of all Condition 1, if a Potential Co- based on observable information, such as industry/ proposed order amounts, Internal Orders and Investment Transaction falls within the sector of the issuer, minimum EBITDA of the issuer, External Submissions in conjunction with Potential asset class of the investment opportunity or Co-Investment Transactions. Each applicable required commitment size, and not on Adviser will provide the Eligible Directors with 1958 (‘‘SBA Act’’) and issue debentures guaranteed characteristics that involve a discretionary information concerning the Affiliated Funds’ and by the Small Business Administration (‘‘SBA’’)); assessment. The Adviser to the Regulated Fund may Regulated Funds’ order sizes to assist the Eligible (iii) with respect to which such Regulated Fund’s from time to time recommend criteria for the Directors with their review of the applicable Board has the sole authority to make all Board’s consideration, but Board-Established Regulated Fund’s investments for compliance with determinations with respect to the entity’s Criteria will only become effective if approved by the Conditions. participation under the Conditions; and (iv) that (a) a majority of the Independent Directors. The ‘‘Eligible Directors’’ means, with respect to a would be an investment company but for section Independent Directors of a Regulated Fund may at Regulated Fund and a Potential Co-Investment 3(c)(1) or 3(c)(7) of the Act, or (b) that relies on Rule any time rescind, suspend or qualify their approval Transaction, the members of the Regulated Fund’s 3a–7 under the Act. ‘‘SBIC Subsidiary’’ means a of any Board-Established Criteria, though applicants Board eligible to vote on that Potential Co- Wholly-Owned Investment Sub that is licensed by anticipate that, under normal circumstances, the Investment Transaction under section 57(o) of the the SBA to operate under the SBA Act as a small Board would not modify these criteria more often Act (treating any registered investment company or business investment company. than quarterly. series thereof as a BDC for this purpose).
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permitted to submit revised Internal Follow-Ons either with the approval of 6 under the Standard Review Orders in accordance with written the Required Majority under Condition Dispositions.19 allocation policies and procedures that 8(c) or without Board approval under 14. A Regulated Fund may participate the Advisers will establish, implement Condition 8(b) if it is (i) a Pro Rata in a Standard Review Disposition either and maintain.13 Follow-On Investment 16 or (ii) a Non- with the approval of the Required 17 Majority under Condition 6(d) or B. Follow-On Investments Negotiated Follow-On Investment. Applicants believe that these Pro Rata without Board approval under 10. Applicants state that from time to and Non-Negotiated Follow-On Condition 6(c) if (i) the Disposition is a 20 time the Regulated Funds and Affiliated Investments do not present a significant Pro Rata Disposition or (ii) the 21 Funds may have opportunities to make opportunity for overreaching on the part securities are Tradable Securities and Follow-On Investments 14 in an issuer in of any Adviser and thus do not warrant the Disposition meets the other which a Regulated Fund and one or the time or the attention of the Board. requirements of Condition 6(c)(ii). Pro more other Regulated Funds and/or Pro Rata Follow-On Investments and Rata Dispositions and Dispositions of a Affiliated Funds previously have Tradable Security remain subject to the Non-Negotiated Follow-On Investments invested. Board’s periodic review in accordance remain subject to the Board’s periodic 11. Applicants propose that Follow- with Condition 10. On Investments would be divided into review in accordance with Condition two categories depending on whether 10. D. Delayed Settlement the prior investment was a Co- C. Dispositions 15. Applicants represent that under Investment Transaction or a Pre- the terms and Conditions of the Boarding Investment.15 If the Regulated 13. Applicants propose that application, all Regulated Funds and Funds and Affiliated Funds had Dispositions 18 would be divided into Affiliated Funds participating in a Co- previously participated in a Co- two categories. If the Regulated Funds Investment Transaction will invest at Investment Transaction with respect to and Affiliated Funds holding the same time, for the same price and the issuer, then the terms and approval investments in the issuer had previously with the same terms, conditions, class, of the Follow-On Investment would be participated in a Co-Investment registration rights and any other rights, subject to the Standard Review Follow- Transaction with respect to the issuer, so that none of them receives terms Ons described in Condition 8. If the then the terms and approval of the Regulated Funds and Affiliated Funds Disposition would be subject to the 19 However, with respect to an issuer, if a have not previously participated in a Regulated Fund’s first Co-Investment Transaction is Standard Review Dispositions described an Enhanced Review Disposition, and the Regulated Co-Investment Transaction with respect in Condition 6. If the Regulated Funds Fund does not dispose of its entire position in the to the issuer but hold a Pre-Boarding and Affiliated Funds have not Enhanced Review Disposition, then before such Investment, then the terms and approval Regulated Fund may complete its first Standard previously participated in a Co- Review Follow-On in such issuer, the Eligible of the Follow-On Investment would be Investment Transaction with respect to subject to the Enhanced-Review Follow- Directors must review the proposed Follow-On the issuer but hold a Pre-Boarding Investment not only on a stand-alone basis but also Ons described in Condition 9. All Investment, then the terms and approval in relation to the total economic exposure in such Enhanced Review Follow-Ons require issuer (i.e., in combination with the portion of the of the Disposition would be subject to the approval of the Required Majority. Pre-Boarding Investment not disposed of in the For a given issuer, the participating the Enhanced Review Dispositions Enhanced Review Disposition), and the other terms described in Condition 7. Subsequent of the investments. This additional review would be Regulated Funds and Affiliated Funds required because such findings would not have would need to comply with the Dispositions with respect to the same been required in connection with the prior requirements of Enhanced-Review issuer would be governed by Condition Enhanced Review Disposition, but they would have been required had the first Co-Investment Follow-Ons only for the first Co- Transaction been an Enhanced Review Follow-On. 16 A ‘‘Pro Rata Follow-On Investment’’ is a Investment Transaction. Subsequent Co- 20 Follow-On Investment (i) in which the participation A ‘‘Pro Rata Disposition’’ is a Disposition (i) in Investment Transactions with respect to of each Affiliated Fund and each Regulated Fund which the participation of each Affiliated Fund and each Regulated Fund is proportionate to its the issuer would be governed by the is proportionate to its outstanding investments in outstanding investment in the security subject to the issuer or security, as appropriate, immediately requirements of Standard Review Disposition immediately preceding the Disposition; preceding the Follow-On Investment, and (ii) in the Follow-Ons. and (ii) in the case of a Regulated Fund, a majority case of a Regulated Fund, a majority of the Board 12. A Regulated Fund would be of the Board has approved the Regulated Fund’s has approved the Regulated Fund’s participation in participation in pro rata Dispositions as being in the permitted to invest in Standard Review the pro rata Follow-On Investments as being in the best interests of the Regulated Fund. The Regulated best interests of the Regulated Fund. The Regulated Fund’s Board may refuse to approve, or at any time 13 Fund’s Board may refuse to approve, or at any time The Board of the Regulated Fund will then rescind, suspend or qualify, its approval of Pro Rata rescind, suspend or qualify, its approval of Pro Rata either approve or disapprove of the investment Dispositions, in which case all subsequent opportunity in accordance with Condition 2, 6, 7, Follow-On Investments, in which case all Dispositions will be submitted to the Regulated 8 or 9, as applicable. subsequent Follow-On Investments will be Fund’s Eligible Directors. 14 submitted to the Regulated Fund’s Eligible Directors ‘‘Follow-On Investment’’ means an additional 21 ‘‘Tradable Security’’ means a security that in accordance with Condition 8(c). investment in the same issuer, including, but not meets the following criteria at the time of 17 limited to, through the exercise of warrants, A ‘‘Non-Negotiated Follow-On Investment’’ is a Disposition: (i) It trades on a national securities conversion privileges or other rights to purchase Follow-On Investment in which a Regulated Fund exchange or designated offshore securities market securities of the issuer. participates together with one or more Affiliated as defined in rule 902(b) under the Securities Act; 15 ‘‘Pre-Boarding Investments’’ are investments in Funds and/or one or more other Regulated Funds (ii) it is not subject to restrictive agreements with an issuer held by a Regulated Fund as well as one (i) in which the only term negotiated by or on behalf the issuer or other security holders; and (iii) it or more Affiliated Funds and/or one or more other of the funds is price and (ii) with respect to which, trades with sufficient volume and liquidity Regulated Funds that: (a) Were acquired prior to if the transaction were considered on its own, the (findings as to which are documented by the participating in any Co-Investment Transaction; (b) funds would be entitled to rely on one of the JT No- Advisers to any Regulated Funds holding were acquired in transactions in which the only Action Letters. investments in the issuer and retained for the life term negotiated by or on behalf of such funds was ‘‘JT No-Action Letters’’ means SMC Capital, Inc., of the Regulated Fund) to allow each Regulated price; and (c) were acquired either (i) in reliance on SEC No-Action Letter (pub. avail. Sept. 5, 1995) and Fund to dispose of its entire position remaining one of the JT No-Action Letters (defined below); or Massachusetts Mutual Life Insurance Company, after the proposed Disposition within a short period (ii) in transactions occurring at least 90 days apart SEC No-Action Letter (pub. avail. June 7, 2000). of time not exceeding 30 days at approximately the and without coordination between the Regulated 18 ‘‘Disposition’’ means the sale, exchange or value (as defined by section 2(a)(41) of the Act) at Fund and any Affiliated Fund or other Regulated other disposition of an interest in a security of an which the Regulated Fund has valued the Fund. issuer. investment.
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more favorable than any other. the extent that the Affiliated Funds and not involve overreaching by any person However, the settlement date for an the Regulated Funds participating in concerned, including the Advisers. Affiliated Fund in a Co-Investment such transactions fall within the Applicants state that the Regulated Transaction may occur up to ten category of persons described by rule Funds’ participation in the Co- business days after the settlement date 17d–1 and/or section 57(b), as modified Investment Transactions in accordance for the Regulated Fund, and vice versa. by rule 57b–1 thereunder, as applicable, with the Conditions will be consistent Nevertheless, in all cases, (i) the date on vis-a`-vis each participating Regulated with the provisions, policies, and which the commitments of the Fund. Because an Adviser will be the purposes of the Act and would be done Affiliated Funds and Regulated Funds investment adviser (and sub-adviser, if in a manner that is not different from, are made will be the same even where any) to each Affiliated Fund and or less advantageous than, that of other the settlement date is not and (ii) the Regulated Fund, the Advisers, a participants. earliest settlement date and the latest Regulated Fund and the Affiliated settlement date of any Affiliated Fund Funds may be deemed to be a person Applicants’ Conditions or Regulated Fund participating in the related to each other Regulated Fund in Applicants agree that the Order will transaction will occur within ten a manner described by section 57(b) (or be subject to the following Conditions: business days of each other. section 17(d) in the case of Regulated 1. Identification and Referral of Funds that are registered under the Act). Potential Co-Investment Transactions. E. Holders Thus, each Regulated Fund and each (a) The Advisers will establish, 16. Under Condition 15, if an Adviser, Affiliated Fund could be deemed to be maintain and implement policies and its principals, or any person controlling, a person related to a Regulated Fund, in procedures reasonably designed to controlled by, or under common control a manner described by section 57(b) and ensure that each Adviser is promptly with the Adviser or its principals, and related to the other Regulated Funds in notified of all Potential Co-Investment the Affiliated Funds (collectively, the a manner described by rule 17d–1; and Transactions that fall within the then- ‘‘Holders’’) own in the aggregate more therefore the prohibitions of rule 17d– current Objectives and Strategies and than 25 percent of the outstanding 1 and section 57(a)(4) (or Section 17(d) Board-Established Criteria of any voting shares of a Regulated Fund (the in the case of Regulated Funds that are Regulated Fund the Adviser manages. ‘‘Shares’’), then the Holders will vote registered under the Act) would apply (b) When an Adviser to a Regulated such Shares in the same percentages as respectively to prohibit the Affiliated Fund is notified of a Potential Co- the Regulated Fund’s other shareholders Funds from participating in Co- Investment Transaction under (not including the Holders) when voting Investment Transactions with the Condition 1(a), the Adviser will make on matters specified in the Condition. Regulated Funds. Further, because the an independent determination of the appropriateness of the investment for Applicants’ Legal Analysis Wholly-Owned Investment Subs are controlled by the Regulated Funds, the the Regulated Fund in light of the 1. Section 17(d) of the Act and rule Wholly-Owned Investment Subs are Regulated Fund’s then-current 17d–1 under the Act prohibit subject to section 57(a)(4) (or section circumstances. participation by a registered investment 17(d) in the case of Wholly-Owned 2. Board Approvals of Co-Investment company and an affiliated person in any Investment Subs controlled by Transactions. ‘‘joint enterprise or other joint Regulated Funds that are registered (a) If the Adviser deems a Regulated arrangement or profit-sharing plan,’’ as under the Act) and thus also subject to Fund’s participation in any Potential defined in the rule, without prior the provisions of rule 17d–1. Co-Investment Transaction to be approval by the Commission by order 4. In passing upon applications under appropriate for the Regulated Fund, it upon application. Section 17(d) of the rule 17d–1, the Commission considers will then determine an appropriate level Act and rule 17d–1 under the Act are whether the company’s participation in of investment for the Regulated Fund. applicable to Regulated Funds that are the joint transaction is consistent with (b) If the aggregate amount registered closed-end investment the provisions, policies, and purposes of recommended by the Advisers to be companies. the Act and the extent to which such invested in the Potential Co-Investment 2. Similarly, with regard to BDCs, participation is on a basis different from Transaction by the participating section 57(a)(4) of the Act generally or less advantageous than that of other Regulated Funds and any participating prohibits certain persons specified in participants. Affiliated Funds, collectively, exceeds section 57(b) from participating in joint 5. Applicants state that in the absence the amount of the investment transactions with the BDC or a company of the requested relief, in many opportunity, the investment opportunity controlled by the BDC in contravention circumstances the Regulated Funds will be allocated among them pro rata of rules as prescribed by the would be limited in their ability to based on the size of the Internal Orders, Commission. Section 57(i) of the Act participate in attractive and appropriate as described in section III.A.1.b. of the provides that, until the Commission investment opportunities. Applicants application. Each Adviser to a prescribes rules under section 57(a)(4), state that, as required by rule 17d–1(b), participating Regulated Fund will the Commission’s rules under section the Conditions ensure that the terms on promptly notify and provide the Eligible 17(d) of the Act applicable to registered which Co-Investment Transactions may Directors with information concerning closed-end investment companies will be made will be consistent with the the Affiliated Funds’ and Regulated be deemed to apply to transactions participation of the Regulated Funds Funds’ order sizes to assist the Eligible subject to section 57(a)(4). Because the being on a basis that it is neither Directors with their review of the Commission has not adopted any rules different from nor less advantageous applicable Regulated Fund’s under section 57(a)(4), rule 17d–1 also than other participants, thus protecting investments for compliance with these applies to joint transactions with the equity holders of any participant Conditions. Regulated Funds that are BDCs. from being disadvantaged. Applicants (c) After making the determinations 3. Co-Investment Transactions are further state that the Conditions ensure required in Condition 1(b) above, each prohibited by either or both of rule 17d– that all Co-Investment Transactions are Adviser to a participating Regulated 1 and section 57(a)(4) without a prior reasonable and fair to the Regulated Fund will distribute written information exemptive order of the Commission to Funds and their shareholders and do concerning the Potential Co-Investment
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Transaction (including the amount the actions of such director or the 5. Same Terms and Conditions. A proposed to be invested by each information received by such board Regulated Fund will not participate in participating Regulated Fund and each observer or obtained through the any Potential Co-Investment participating Affiliated Fund) to the exercise of any similar right to Transaction unless (i) the terms, Eligible Directors of its participating participate in the governance or conditions, price, class of securities to Regulated Fund(s) for their management of the portfolio company; be purchased, date on which the consideration. A Regulated Fund will and (z) any fees or other compensation commitment is entered into and enter into a Co-Investment Transaction that any other Regulated Fund or registration rights (if any) will be the with one or more other Regulated Funds Affiliated Fund or any affiliated person same for each participating Regulated or Affiliated Funds only if, prior to the of any other Regulated Fund or Fund and Affiliated Fund and (ii) the Regulated Fund’s participation in the Affiliated Fund receives in connection earliest settlement date and the latest Potential Co-Investment Transaction, a with the right of one or more Regulated settlement date of any participating Required Majority concludes that: Funds or Affiliated Funds to nominate Regulated Fund or Affiliated Fund will (i) The terms of the transaction, a director or appoint a board observer or occur as close in time as practicable and including the consideration to be paid, otherwise to participate in the in no event more than ten business days are reasonable and fair to the Regulated governance or management of the apart. The grant to one or more Fund and its equity holders and do not portfolio company will be shared Regulated Funds or Affiliated Funds, involve overreaching in respect of the proportionately among any participating but not the respective Regulated Fund, Regulated Fund or its equity holders on Affiliated Funds (who may, in turn, of the right to nominate a director for the part of any person concerned; share their portion with their affiliated election to a portfolio company’s board (ii) the transaction is consistent with: persons) and any participating of directors, the right to have an (A) The interests of the Regulated Regulated Fund(s) in accordance with observer on the board of directors or Fund’s equity holders; and the amount of each such party’s similar rights to participate in the (B) the Regulated Fund’s then-current investment; and governance or management of the Objectives and Strategies; (iv) the proposed investment by the portfolio company will not be (iii) the investment by any other Regulated Fund will not involve interpreted so as to violate this Regulated Fund(s) or Affiliated Fund(s) compensation, remuneration or a direct Condition 5, if Condition 2(c)(iii)(B) is would not disadvantage the Regulated or indirect 22 financial benefit to the met. Fund, and participation by the Advisers, any other Regulated Funds, 6. Standard Review Dispositions. Regulated Fund would not be on a basis the Affiliated Funds or any affiliated (a) General. If any Regulated Fund or different from, or less advantageous person of any of them (other than the Affiliated Fund elects to sell, exchange than, that of any other Regulated parties to the Co-Investment or otherwise dispose of an interest in a Fund(s) or Affiliated Fund(s) Transaction), except (A) to the extent security and one or more Regulated participating in the transaction; permitted by Condition 14, (B) to the Funds and Affiliated Funds have provided that the Required Majority extent permitted by section 17(e) or previously participated in a Co- shall not be prohibited from reaching 57(k), as applicable, (C) indirectly, as a Investment Transaction with respect to the conclusions required by this result of an interest in the securities the issuer, then: Condition 2(c)(iii) if: issued by one of the parties to the Co- (i) The Adviser to such Regulated (A) The settlement date for another Investment Transaction, or (D) in the Fund or Affiliated Fund, as applicable, Regulated Fund or an Affiliated Fund in case of fees or other compensation will notify each Regulated Fund that a Co-Investment Transaction is later described in Condition 2(c)(iii)(B)(z). holds an investment in the issuer of the than the settlement date for the 3. Right to Decline. Each Regulated proposed Disposition at the earliest Regulated Fund by no more than ten Fund has the right to decline to practical time; and business days or earlier than the participate in any Potential Co- (ii) the Adviser to each Regulated settlement date for the Regulated Fund Investment Transaction or to invest less Fund that holds an investment in the by no more than ten business days, in than the amount proposed. issuer will formulate a recommendation either case, so long as: (x) The date on 4. General Limitation. Except for as to participation by such Regulated which the commitments of the Follow-On Investments made in Fund in the Disposition. Affiliated Funds and Regulated Funds accordance with Conditions 8 and 9 (b) Same Terms and Conditions. Each are made is the same; and (y) the earliest below,23 a Regulated Fund will not Regulated Fund will have the right to settlement date and the latest settlement invest in reliance on the Order in any participate in such Disposition on a date of any Affiliated Fund or Regulated issuer in which a Related Party has an proportionate basis, at the same price Fund participating in the transaction investment.24 and on the same terms and conditions will occur within ten business days of as those applicable to the Affiliated each other; or 22 For example, procuring the Regulated Fund’s Funds and any other Regulated Funds. (B) any other Regulated Fund or investment in a Potential Co-Investment (c) No Board Approval Required. A Affiliated Fund, but not the Regulated Transaction to permit an affiliate to complete or Regulated Fund may participate in such obtain better terms in a separate transaction would a Disposition without obtaining prior Fund itself, gains the right to nominate constitute an indirect financial benefit. a director for election to a portfolio 23 This exception applies only to Follow-On approval of the Required Majority if: company’s board of directors, the right Investments by a Regulated Fund in issuers in (i)(A) The participation of each to have a board observer or any similar which that Regulated Fund already holds Regulated Fund and Affiliated Fund in right to participate in the governance or investments. 24 ‘‘Related Party’’ means (i) any Close Affiliate management of the portfolio company for limited partners included solely by reason of the and (ii) in respect of matters as to which any reference in section 57(b) to section 2(a)(3)(D). so long as: (x) The Eligible Directors will Adviser has knowledge, any Remote Affiliate. ‘‘Remote Affiliate’’ means any person described have the right to ratify the selection of ‘‘Close Affiliate’’ means the Advisers, the in section 57(e) in respect of any Regulated Fund such director or board observer, if any; Regulated Funds, the Affiliated Funds and any (treating any registered investment company or (y) the Adviser agrees to, and does, other person described in section 57(b) (after giving series thereof as a BDC for this purpose) and any effect to rule 57b–1) in respect of any Regulated limited partner holding 5% or more of the relevant provide periodic reports to the Fund (treating any registered investment company limited partner interests that would be a Close Regulated Fund’s Board with respect to or series thereof as a BDC for this purpose) except Affiliate but for the exclusion in that definition.
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such Disposition is proportionate to its (b) Enhanced Board Approval. The its minutes. In addition, securities that then-current holding of the security (or Adviser will provide its written differ only in respect of issuance date, securities) of the issuer that is (or are) recommendation as to the Regulated currency, or denominations may be the subject of the Disposition; 25 (B) the Fund’s participation to the Eligible treated as the same security; and Board of the Regulated Fund has Directors, and the Regulated Fund will (v) No control. The Affiliated Funds, approved as being in the best interests participate in such Disposition solely to the other Regulated Funds and their of the Regulated Fund the ability to the extent that a Required Majority affiliated persons (within the meaning participate in such Dispositions on a pro determines that: of section 2(a)(3)(C) of the Act), rata basis (as described in greater detail (i) The Disposition complies with individually or in the aggregate, do not in the application); and (C) the Board of Condition 2(c)(i), (ii), (iii)(A), and (iv); control the issuer of the securities the Regulated Fund is provided on a and (within the meaning of section 2(a)(9) of quarterly basis with a list of all (ii) the making and holding of the Pre- the Act). Boarding Investments were not Dispositions made in accordance with 8. Standard Review Follow-Ons. this Condition; or prohibited by section 57 or rule 17d–1, (ii) each security is a Tradable as applicable, and records the basis for (a) General. If any Regulated Fund or Security and (A) the Disposition is not the finding in the Board minutes. Affiliated Fund desires to make a to the issuer or any affiliated person of (c) Additional Requirements: The Follow-On Investment in an issuer and the issuer; and (B) the security is sold Disposition may only be completed in the Regulated Funds and Affiliated for cash in a transaction in which the reliance on the Order if: Funds holding investments in the issuer only term negotiated by or on behalf of (i) Same Terms and Conditions. Each previously participated in a Co- the participating Regulated Funds and Regulated Fund has the right to Investment Transaction with respect to Affiliated Funds is price. participate in such Disposition on a the issuer: (d) Standard Board Approval. In all proportionate basis, at the same price (i) The Adviser to each such other cases, the Adviser will provide its and on the same terms and Conditions Regulated Fund or Affiliated Fund, as written recommendation as to the as those applicable to the Affiliated applicable, will notify each Regulated Regulated Fund’s participation to the Funds and any other Regulated Funds; Fund that holds securities of the Eligible Directors and the Regulated (ii) Original Investments. All of the portfolio company of the proposed Fund will participate in such Affiliated Funds’ and Regulated Funds’ transaction at the earliest practical time; Disposition solely to the extent that a investments in the issuer are Pre- and Required Majority determines that it is Boarding Investments; (ii) the Adviser to each Regulated in the Regulated Fund’s best interests. (iii) Advice of counsel. Independent Fund that holds an investment in the 7. Enhanced Review Dispositions. counsel to the Board advises that the issuer will formulate a recommendation (a) General. If any Regulated Fund or making and holding of the investments as to the proposed participation, Affiliated Fund elects to sell, exchange in the Pre-Boarding Investments were including the amount of the proposed or otherwise dispose of a Pre-Boarding not prohibited by section 57 (as investment, by such Regulated Fund. Investment in a Potential Co-Investment modified by rule 57b–1) or rule 17d–1, (b) No Board Approval Required. A Transaction and the Regulated Funds as applicable; Regulated Fund may participate in the and Affiliated Funds have not (iv) Multiple Classes of Securities. All Follow-On Investment without previously participated in a Co- Regulated Funds and Affiliated Funds obtaining prior approval of the Required Investment Transaction with respect to that hold Pre-Boarding Investments in Majority if: the issuer: the issuer immediately before the time (i)(A) The proposed participation of (i) The Adviser to such Regulated of completion of the Co-Investment each Regulated Fund and each Fund or Affiliated Fund, as applicable, Transaction hold the same security or Affiliated Fund in such investment is will notify each Regulated Fund that securities of the issuer. For the purpose proportionate to its outstanding holds an investment in the issuer of the of determining whether the Regulated investments in the issuer or the security proposed Disposition at the earliest Funds and Affiliated Funds hold the at issue, as appropriate,27 immediately practical time; same security or securities, they may preceding the Follow-On Investment; (ii) the Adviser to each Regulated disregard any security held by some but and (B) the Board of the Regulated Fund Fund that holds an investment in the not all of them if, prior to relying on the has approved as being in the best issuer will formulate a recommendation Order, the Required Majority is interests of the Regulated Fund the as to participation by such Regulated presented with all information ability to participate in Follow-On Fund in the Disposition; and necessary to make a finding, and finds, Investments on a pro rata basis (as (iii) the Advisers will provide to the that: (x) Any Regulated Fund’s or Board of each Regulated Fund that Affiliated Fund’s holding of a different class of securities (including for this 27 To the extent that a Follow-On Investment holds an investment in the issuer all opportunity is in a security or arises in respect of information relating to the existing purpose a security with a different a security held by the participating Regulated investments in the issuer of the maturity date) is immaterial 26 in Funds and Affiliated Funds, proportionality will be Regulated Funds and Affiliated Funds, amount, including immaterial relative to measured by each participating Regulated Fund’s the size of the issuer; and (y) the Board and Affiliated Fund’s outstanding investment in the including the terms of such investments security in question immediately preceding the and how they were made, that is records the basis for any such finding in Follow-On Investment using the most recent necessary for the Required Majority to available valuation thereof. To the extent that a make the findings required by this 26 In determining whether a holding is Follow-On Investment opportunity relates to an ‘‘immaterial’’ for purposes of the Order, the opportunity to invest in a security that is not in Condition. Required Majority will consider whether the nature respect of any security held by any of the and extent of the interest in the transaction or participating Regulated Funds or Affiliated Funds, 25 In the case of any Disposition, proportionality arrangement is sufficiently small that a reasonable proportionality will be measured by each will be measured by each participating Regulated person would not believe that the interest affected participating Regulated Fund’s and Affiliated Fund’s and Affiliated Fund’s outstanding the determination of whether to enter into the Fund’s outstanding investment in the issuer investment in the security in question immediately transaction or arrangement or the terms of the immediately preceding the Follow-On Investment preceding the Disposition. transaction or arrangement. using the most recent available valuation thereof.
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described in greater detail in the issuer will formulate a recommendation that: (x) Any Regulated Fund’s or application); or as to the proposed participation, Affiliated Fund’s holding of a different (ii) it is a Non-Negotiated Follow-On including the amount of the proposed class of securities (including for this Investment. investment, by such Regulated Fund; purpose a security with a different (c) Standard Board Approval. In all and maturity date) is immaterial in amount, other cases, the Adviser will provide its (iii) the Advisers will provide to the including immaterial relative to the size written recommendation as to the Board of each Regulated Fund that of the issuer; and (y) the Board records Regulated Fund’s participation to the holds an investment in the issuer all the basis for any such finding in its Eligible Directors and the Regulated information relating to the existing minutes. In addition, securities that Fund will participate in such Follow-On investments in the issuer of the differ only in respect of issuance date, Investment solely to the extent that a Regulated Funds and Affiliated Funds, currency, or denominations may be Required Majority makes the including the terms of such investments treated as the same security; and determinations set forth in Condition and how they were made, that is (iv) No control. The Affiliated Funds, 2(c). If the only previous Co-Investment necessary for the Required Majority to the other Regulated Funds and their Transaction with respect to the issuer make the findings required by this affiliated persons (within the meaning was an Enhanced Review Disposition, Condition. of section 2(a)(3)(C) of the Act), the Eligible Directors must complete (b) Enhanced Board Approval. The individually or in the aggregate, do not this review of the proposed Follow-On Adviser will provide its written control the issuer of the securities Investment both on a stand-alone basis recommendation as to the Regulated (within the meaning of section 2(a)(9) of and together with the Pre-Boarding Fund’s participation to the Eligible the Act). Investments in relation to the total Directors, and the Regulated Fund will (d) Allocation. If, with respect to any economic exposure and other terms of participate in such Follow-On such Follow-On Investment: the investment. Investment solely to the extent that a (i) The amount of the opportunity (d) Allocation. If, with respect to any Required Majority reviews the proposed proposed to be made available to any such Follow-On Investment: Follow-On Investment both on a stand- Regulated Fund is not based on the (i) The amount of the opportunity alone basis and together with the Pre- Regulated Funds’ and the Affiliated proposed to be made available to any Boarding Investments in relation to the Funds’ outstanding investments in the Regulated Fund is not based on the total economic exposure and other issuer or the security at issue, as Regulated Funds’ and the Affiliated terms and makes the determinations set appropriate, immediately preceding the Funds’ outstanding investments in the forth in Condition 2(c). In addition, the Follow-On Investment; and issuer or the security at issue, as Follow-On Investment may only be (ii) the aggregate amount appropriate, immediately preceding the completed in reliance on the Order if recommended by the Advisers to be Follow-On Investment; and the Required Majority of each invested in the Follow-On Investment (ii) the aggregate amount participating Regulated Fund by the participating Regulated Funds recommended by the Advisers to be determines that the making and holding and any participating Affiliated Funds, invested in the Follow-On Investment of the Pre-Boarding Investments were collectively, exceeds the amount of the by the participating Regulated Funds not prohibited by section 57 (as investment opportunity, then the and any participating Affiliated Funds, modified by rule 57b–1) or rule 17d–1, Follow-On Investment opportunity will collectively, exceeds the amount of the as applicable. The basis for the Board’s be allocated among them pro rata based investment opportunity, then the findings will be recorded in its minutes. on the size of the Internal Orders, as Follow-On Investment opportunity will (c) Additional Requirements. The described in section III.A.1.b. of the be allocated among them pro rata based Follow-On Investment may only be application. on the size of the Internal Orders, as completed in reliance on the Order if: (e) Other Conditions. The acquisition described in section III.A.1.b. of the (i) Original Investments. All of the of Follow-On Investments as permitted application. Affiliated Funds’ and Regulated Funds’ by this Condition will be considered a (e) Other Conditions. The acquisition investments in the issuer are Pre- Co-Investment Transaction for all of Follow-On Investments as permitted Boarding Investments; purposes and subject to the other by this Condition will be considered a (ii) Advice of counsel. Independent Conditions set forth in the application. Co-Investment Transaction for all counsel to the Board advises that the 10. Board Reporting, Compliance and purposes and subject to the other making and holding of the investments Annual Re-Approval. Conditions set forth in the application. in the Pre-Boarding Investments were (a) Each Adviser to a Regulated Fund 9. Enhanced Review Follow-Ons. not prohibited by section 57 (as will present to the Board of each (a) General. If any Regulated Fund or modified by rule 57b–1) or rule 17d–1, Regulated Fund, on a quarterly basis, Affiliated Fund desires to make a as applicable; and at such other times as the Board Follow-On Investment in an issuer that (iii) Multiple Classes of Securities. All may request, (i) a record of all is a Potential Co-Investment Transaction Regulated Funds and Affiliated Funds investments in Potential Co-Investment and the Regulated Funds and Affiliated that hold Pre-Boarding Investments in Transactions made by any of the other Funds holding investments in the issuer the issuer immediately before the time Regulated Funds or any of the Affiliated have not previously participated in a of completion of the Co-Investment Funds during the preceding quarter that Co-Investment Transaction with respect Transaction hold the same security or fell within the Regulated Fund’s then- to the issuer: securities of the issuer. For the purpose current Objectives and Strategies and (i) The Adviser to each such of determining whether the Regulated Board-Established Criteria that were not Regulated Fund or Affiliated Fund, as Funds and Affiliated Funds hold the made available to the Regulated Fund, applicable, will notify each Regulated same security or securities, they may and an explanation of why such Fund that holds securities of the disregard any security held by some but investment opportunities were not made portfolio company of the proposed not all of them if, prior to relying on the available to the Regulated Fund; (ii) a transaction at the earliest practical time; Order, the Required Majority is record of all Follow-On Investments in (ii) the Adviser to each Regulated presented with all information and Dispositions of investments in any Fund that holds an investment in the necessary to make a finding, and finds, issuer in which the Regulated Fund
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holds any investments by any Affiliated shared by the Regulated Funds and the For the Commission, by the Division of Fund or other Regulated Fund during participating Affiliated Funds in Investment Management, under delegated the prior quarter; and (iii) all proportion to the relative amounts of the authority. information concerning Potential Co- securities held or being acquired or Jill M. Peterson, Investment Transactions and Co- disposed of, as the case may be. Assistant Secretary. Investment Transactions, including 14. Transaction Fees.28 Any [FR Doc. 2020–19406 Filed 9–1–20; 8:45 am] investments made by other Regulated Funds or Affiliated Funds that the transaction fee (including break-up, BILLING CODE 8011–01–P Regulated Fund considered but declined structuring, monitoring or commitment to participate in, so that the fees but excluding brokerage or SECURITIES AND EXCHANGE Independent Directors, may determine underwriting compensation permitted COMMISSION whether all Potential Co-Investment by section 17(e) or 57(k)) received in Transactions and Co-Investment connection with any Co-Investment Transactions during the preceding Transaction will be distributed to the [Investment Company Act Release No. quarter, including those investments participants on a pro rata basis based on 33999] that the Regulated Fund considered but the amounts they invested or declined to participate in, comply with committed, as the case may be, in such Notice of Applications for the Conditions. Co-Investment Transaction. If any Deregistration Under Section 8(f) of the (b) All information presented to the transaction fee is to be held by an Investment Company Act of 1940 Regulated Fund’s Board pursuant to this Adviser pending consummation of the August 28, 2020. Condition will be kept for the life of the transaction, the fee will be deposited Regulated Fund and at least two years into an account maintained by the The following is a notice of thereafter, and will be subject to Adviser at a bank or banks having the applications for deregistration under examination by the Commission and its section 8(f) of the Investment Company qualifications prescribed in section staff. Act of 1940 for the month of August 26(a)(1), and the account will earn a (c) Each Regulated Fund’s chief 2020. A copy of each application may be competitive rate of interest that will also compliance officer, as defined in rule obtained via the Commission’s website be divided pro rata among the 38a-1(a)(4), will prepare an annual by searching for the file number, or for participants. None of the Advisers, the report for its Board each year that an applicant using the Company name evaluates (and documents the basis of Affiliated Funds, the other Regulated box, at http://www.sec.gov/search/ that evaluation) the Regulated Fund’s Funds or any affiliated person of the search.htm or by calling (202) 551– compliance with the terms and Affiliated Funds or the Regulated Funds 8090. An order granting each Conditions of the application and the will receive any additional application will be issued unless the procedures established to achieve such compensation or remuneration of any SEC orders a hearing. Interested persons compliance. kind as a result of or in connection with may request a hearing on any (d) The Independent Directors a Co-Investment Transaction other than application by emailing the SEC’s (including the non-interested members (i) in the case of the Regulated Funds Secretary at [email protected] of each Independent Party) will and the Affiliated Funds, the pro rata and serving the relevant applicant with consider at least annually whether transaction fees described above and a copy of the request by email, if an continued participation in new and fees or other compensation described in email address is listed for the relevant existing Co-Investment Transactions is Condition 2(c)(iii)(B)(z), (ii) brokerage or applicant below, or personally or by in the Regulated Fund’s best interests. underwriting compensation permitted 11. Record Keeping. Each Regulated mail, if a physical address is listed for by section 17(e) or 57(k) or (iii) in the Fund will maintain the records required the relevant applicant below. Hearing by section 57(f)(3) of the Act as if each case of the Advisers, investment requests should be received by the SEC of the Regulated Funds were a BDC and advisory compensation paid in by 5:30 p.m. on September 22, 2020, each of the investments permitted under accordance with investment advisory and should be accompanied by proof of these Conditions were approved by the agreements between the applicable service on applicants, in the form of an Required Majority under section 57(f). Regulated Fund(s) or Affiliated Fund(s) affidavit or, for lawyers, a certificate of 12. Director Independence. No and its Adviser. service. Pursuant to Rule 0–5 under the Act, hearing requests should state the Independent Director (including the 15. Independence. If the Holders own nature of the writer’s interest, any facts non-interested members of any in the aggregate more than 25 percent of bearing upon the desirability of a Independent Party) of a Regulated Fund the Shares of a Regulated Fund, then the hearing on the matter, the reason for the will also be a director, general partner, Holders will vote such Shares in the request, and the issues contested. managing member or principal, or same percentages as the Regulated otherwise be an ‘‘affiliated person’’ (as Persons who wish to be notified of a Fund’s other shareholders (not hearing may request notification by defined in the Act) of any Affiliated including the Holders) when voting on Fund. writing to the Commission’s Secretary at (1) the election of directors; (2) the 13. Expenses. The expenses, if any, [email protected]. associated with acquiring, holding or removal of one or more directors; or (3) any other matter under either the Act or ADDRESSES: The Commission: disposing of any securities acquired in [email protected]. a Co-Investment Transaction (including, applicable State law affecting the without limitation, the expenses of the Board’s composition, size or manner of FOR FURTHER INFORMATION CONTACT: distribution of any such securities election. Shawn Davis, Assistant Director, at registered for sale under the Securities (202) 551–6413 or Chief Counsel’s Act) will, to the extent not payable by 28 Applicants are not requesting and the Office at (202) 551–6821; SEC, Division the Advisers under their respective Commission is not providing any relief for of Investment Management, Chief advisory agreements with the Regulated transaction fees received in connection with any Counsel’s Office, 100 F Street NE, Funds and the Affiliated Funds, be Co-Investment Transaction. Washington, DC 20549–8010.
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Nuveen All Cap Energy MLP declaring that it has ceased to be an I. Self-Regulatory Organization’s Opportunities Fund [File No. 811– investment company. Applicant has Statement of the Terms of Substance of 22877] never made a public offering of its the Proposed Rule Change Summary: Applicant, a closed-end securities and does not propose to make The Exchange proposes to modify the investment company, seeks an order a public offering or engage in business NYSE Arca Options Fee Schedule (‘‘Fee declaring that it has ceased to be an of any kind. Schedule’’) to extend the waiver of investment company. On May 8, 2020, Filing Dates: The application was certain Floor-based fixed fees through applicant made liquidating distributions filed on October 23, 2019, and amended September 2020. The Exchange to its shareholders based on net asset on June 23, 2020. proposes to implement the fee change value. Expenses of $5,713.02 incurred in Applicant’s Address: dglatz@ effective August 26, 2020. The proposed connection with the liquidation were stradley.com. rule change is available on the paid by the applicant. SSGA Master Trust [File No. 811– Exchange’s website at www.nyse.com, at Filing Date: The application was filed 22705] the principal office of the Exchange, and on June 23, 2020. at the Commission’s Public Reference Applicant’s Address: dglatz@ Summary: Applicant seeks an order Room. stradley.com. declaring that it has ceased to be an investment company. On September 6, II. Self-Regulatory Organization’s Statement of the Purpose of, and Nuveen Energy MLP Total Return Fund 2019, applicant made liquidating Statutory Basis for, the Proposed Rule [File No. 811–22482] distributions to its shareholders based Change Summary: Applicant, a closed-end on net asset value. Expenses of $7,000 investment company, seeks an order incurred in connection with the In its filing with the Commission, the declaring that it has ceased to be an liquidation were paid by the applicant’s self-regulatory organization included investment company. On May 8, 2020, investment adviser. statements concerning the purpose of, applicant made liquidating distributions Filing Date: The application was filed and basis for, the proposed rule change to its shareholders based on net asset on July 9, 2020. and discussed any comments it received value. Expenses of $39,806.45 incurred Applicant’s Address: beau.yanoshik@ on the proposed rule change. The text in connection with the liquidation were morganlewis.com. of those statements may be examined at paid by the applicant. the places specified in Item IV below. Filing Date: The application was filed For the Commission, by the Division of The Exchange has prepared summaries, Investment Management, pursuant to set forth in sections A, B, and C below, on June 23, 2020. delegated authority. Applicant’s Address: dglatz@ of the most significant parts of such stradley.com Jill. M. Peterson, statements. Assistant Secretary. Nuveen High Income December 2019 [FR Doc. 2020–19426 Filed 9–1–20; 8:45 am] A. Self-Regulatory Organization’s Statement of the Purpose of, and the Target Term Fund [File No. 811–23141] BILLING CODE 8011–01–P Summary: Applicant, a closed-end Statutory Basis for, the Proposed Rule Change investment company, seeks an order declaring that it has ceased to be an SECURITIES AND EXCHANGE 1. Purpose COMMISSION investment company. On November 29, The purpose of this filing is to modify 2019, applicant made liquidating the Fee Schedule to extend the waiver distributions to its shareholders based [Release No. 34–89694; File No. SR– of certain Floor-based fixed fees through on net asset value. Expenses of $3,454 NYSEArca–2020–76] September 2020 for market participants incurred in connection with the that have been unable to resume their liquidation were paid by the applicant. Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Floor operations to a certain capacity Filing Dates: The application was level, as discussed below. The Exchange Immediate Effectiveness of Proposed filed on March 11, 2020, and amended proposes to implement the fee change Rule Change To Modify the NYSE Arca on July 22, 2020. effective August 26, 2020. Applicant’s Address: dglatz@ Options Fee Schedule On March 18, 2020, the Exchange stradley.com. August 27, 2020. announced that it would temporarily Nuveen Impact Bond 2025 Term Fund Pursuant to Section 19(b)(1) 1 of the close the Trading Floor, effective [File No. 811–23337] Securities Exchange Act of 1934 (the Monday, March 23, 2020, as a ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 precautionary measure to prevent the Summary: Applicant, a closed-end potential spread of COVID–19. investment company, seeks an order notice is hereby given that, on August 26, 2020, NYSE Arca, Inc. (‘‘NYSE Following the temporary closure of the declaring that it has ceased to be an Trading Floor, the Exchange waived investment company. Applicant has Arca’’ or the ‘‘Exchange’’) filed with the Securities and Exchange Commission certain Floor-based fixed fees for April never made a public offering of its and May 2020 (the ‘‘fee waiver’’).4 (the ‘‘Commission’’) the proposed rule securities and does not propose to make Although the Trading Floor partially a public offering or engage in business change as described in Items I, II, and III below, which Items have been reopened on May 4, 2020 and Floor- of any kind. based open outcry activity is supported, Filing Date: The application was filed prepared by the self-regulatory organization. The Commission is certain participants have been unable to on June 12, 2020. resume pre-Floor closure levels of Applicant’s Address: dglatz@ publishing this notice to solicit operations. As a result, the Exchange stradley.com. comments on the proposed rule change from interested persons. extended the fee waiver through June, Nuveen Mortgage and Income Fund [File No. 811–23433] 4 See Securities Exchange Act Release Nos. 88596 1 15 U.S.C. 78s(b)(1). (April 8, 2020), 85 FR 20796 (April 14, 2020) (SR– Summary: Applicant, a closed-end 2 15 U.S.C. 78a. NYSEArca–2020–29); 88812 (May 5, 2020), 85 FR investment company, seeks an order 3 17 CFR 240.19b–44. 27787 (May 11, 2020) (SR–NYSEArca–2020–38).
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July and August 2020, but only for Floor Section 6(b) of the Act,8 in general, and losses as a result of the partial reopening Broker firms that were unable to operate furthers the objectives of Sections of the Floor. Absent this change, such at more than 50% of their March 2020 6(b)(4) and (5) of the Act,9 in particular, participants may experience an on-Floor staffing levels and for Market because it provides for the equitable unexpected increase in the cost of doing Maker firms that have vacant or allocation of reasonable dues, fees, and business on the Exchange. The ‘‘unmanned’’ Podia for the entire month other charges among its members, Exchange believes that all Qualifying due to COVID–19 related considerations issuers and other persons using its Firms would benefit from this proposed (the ‘‘Qualifying Firms’’).5 Because the facilities and does not unfairly fee change. Trading Floor will continue to operate discriminate between customers, The Exchange believes the proposed with reduced capacity, the Exchange issuers, brokers or dealers. rule change is an equitable allocation of proposes to extend the prior fee waiver The Exchange operates in a highly its fees and credits as it merely for Qualifying Firms through September competitive market. The Commission continues the previous fee waiver for 2020. has repeatedly expressed its preference Qualifying Firms, which affects fees Specifically, the proposed fee waiver for competition over regulatory charged only to Floor participants and covers the following fixed fees for intervention in determining prices, does not apply to participants that Qualifying Firms, which relate directly products, and services in the securities conduct business off-Floor. The to Floor operations, are charged only to markets. In Regulation NMS, the Exchange believes it is an equitable Floor participants and do not apply to Commission highlighted the importance allocation of fees and credits to extend participants that conduct business off- of market forces in determining prices the fee waiver for Qualifying Firms Floor: and SRO revenues and, also, recognized because such firms have either less than • Floor Booths; that current regulation of the market half of their Floor staff (March 2020) • Market Maker Podia; system ‘‘has been remarkably successful • levels or have vacant podia—and this Options Floor Access; in promoting market competition in its reduction in physical capacity on the • Wire Services; and broader forms that are most important to Floor impacts the speed, volume and • ISP Connection.6 investors and listed companies.’’ 10 efficiency with which these firms can Like the previous fee waiver for There are currently 16 registered Qualifying Firms, the proposed fee operate, which is to their detriment. options exchanges competing for order The Exchange believes that the change is designed to reduce monthly flow. Based on publicly-available costs for Qualifying Firms whose proposal is not unfairly discriminatory information, and excluding index-based because the proposed continuation of operations continue to be disrupted options, no single exchange has more despite the fact that the Trading Floor the fee waiver would affect all similarly- than 16% of the market share of situated market participants on an equal has partially reopened. In reducing this executed volume of multiply-listed monthly financial burden, the proposed and non-discriminatory basis. equity and ETF options trades.11 Finally, the Exchange believes that it change would allow Qualifying Firms to Therefore, currently no exchange reallocate funds to assist with the cost is subject to significant competitive possesses significant pricing power in forces, as described below in the of shifting and maintaining their prior the execution of multiply-listed equity & fully-staffed on-Floor operations to off- Exchange’s statement regarding the ETF options order flow. More burden on competition. Floor and recoup losses as a result of the specifically, in June 2020, the Exchange partial reopening. Absent this change, had slightly over 10% market share of B. Self-Regulatory Organization’s such participants may experience an executed volume of multiply-listed Statement on Burden on Competition unexpected increase in the cost of doing equity & ETF options trades.12 7 In accordance with Section 6(b)(8) of business on the Exchange. The This proposed fee change is the Act, the Exchange does not believe Exchange believes that all Qualifying reasonable, equitable, and not unfairly that the proposed rule change would Firms would benefit from this proposed discriminatory because it would reduce impose any burden on competition that fee change. monthly costs for Qualifying Firms is not necessary or appropriate in 2. Statutory Basis whose operations have been disrupted furtherance of the purposes of the Act. despite the fact that the Trading Floor The Exchange believes that the The Exchange believes that the has partially reopened because of the proposed rule change is consistent with proposed changes would encourage the social distancing requirements and/or continued participation of Qualifying other health concerns related to 5 See Securities Exchange Act Release Nos. 89038 Firms, thereby promoting market depth, (June 10, 2020), 85 FR 36447 (June 16, 2020) (SR– resuming operation on the Floor. In price discovery and transparency and NYSEArca–2020–52); 89242 (June 7, 2020), 85 FR reducing this monthly financial burden, enhancing order execution 42037 (July 13, 2020) (SR–NYSEArca–2020–60); the proposed change would allow opportunities for all market 89480 (August 5, 2020), 85 FR 48591 (August 11, Qualifying Firms to reallocate funds to 2020) (SR–NYSEArca–2020–69). See also Fee participants. As a result, the Exchange Schedule, NYSE Arca OPTIONS: FLOOR and assist with the cost of shifting and believes that the proposed change EQUIPMENT and CO–LOCATION FEES. maintaining their prior fully-staffed on- furthers the Commission’s goal in 6 See proposed Fee Schedule, NYSE Arca Floor operations to off-Floor and recoup adopting Regulation NMS of fostering OPTIONS: FLOOR and EQUIPMENT and CO– LOCATION FEES (providing that certain fees are integrated competition among orders, 8 15 U.S.C. 78f(b). waived for Qualifying Firms ‘‘for June through which promotes ‘‘more efficient pricing 9 September 2020’’). 15 U.S.C. 78f(b)(4) and (5). 10 of individual stocks for all types of 7 The Exchange will refund participants of the See Securities Exchange Act Release No. 51808 13 (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) orders, large and small.’’ Floor Broker Prepayment Program for any prepaid Intramarket Competition. The September 2020 fees that are waived. See proposed (S7–10–04) (‘‘Reg NMS Adopting Release’’). Fee Schedule, FLOOR BROKER FIXED COST 11 The OCC publishes options and futures volume proposed change, which continues the PREPAYMENT INCENTIVE PROGRAM (the ‘‘FB in a variety of formats, including daily and monthly fee waiver for Qualifying Firms, is Prepay Program’’) (providing that ‘‘the Exchange volume by exchange, available here: https:// designed to reduce monthly costs for will refund certain of the prepaid Eligible Fixed www.theocc.com/market-data/volume/default.jsp. costs that were waived for June through September 12 Based on OCC data, see id., in 2019, the those Floor participants whose 2020 for Qualifying Firms as defined, and set forth Exchange’s market share in equity-based options in, NYSE Arca OPTIONS: FLOOR and EQUIPMENT increased from 9.51% for the month of June 2019 13 See Reg NMS Adopting Release, supra note 10, and CO–LOCATION FEES’’). to 10.65% for the month of June 2020. at 37499.
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operations continue to be impacted would allow affected participants to Commission, 100 F Street NE, despite the fact that the Trading Floor reallocate funds to assist with the cost Washington, DC 20549–1090. has partially reopened. In reducing this of shifting and maintaining their prior monthly financial burden, the proposed fully-staffed on-Floor operations to off- All submissions should refer to File change would allow Qualifying Firms to Floor. Absent this change, Qualifying Number SR–NYSEArca–2020–76. This reallocate funds to assist with the cost Firms may experience an unintended file number should be included on the of shifting and maintaining their increase in the cost of doing business on subject line if email is used. To help the previously on-Floor operations to off- the Exchange, which would make the Commission process and review your Floor. Absent this change, such Exchange a less competitive venue on comments more efficiently, please use Qualifying Firms may experience an which to trade as compared to other only one method. The Commission will unintended increase in the cost of doing options exchanges. post all comments on the Commission’s internet website (http://www.sec.gov/ business on the Exchange, given that the C. Self-Regulatory Organization’s Floor has only reopened in a limited Statement on Comments on the rules/sro.shtml). Copies of the capacity. The Exchange believes that the Proposed Rule Change Received From submission, all subsequent proposed waiver of fees for Qualifying Members, Participants, or Others amendments, all written statements Firms would not impose a disparate with respect to the proposed rule burden on competition among market No written comments were solicited change that are filed with the or received with respect to the proposed participants on the Exchange because Commission, and all written rule change. off-Floor market participants are not communications relating to the subject to these Floor-based fixed fees III. Date of Effectiveness of the proposed rule change between the and Floor-based firms that are not Proposed Rule Change and Timing for Commission and any person, other than subject to the extent of staffing shortfalls Commission Action those that may be withheld from the as the Qualifying Firms—i.e., have at The foregoing rule change is effective public in accordance with the least 50% of their March 2020 staffing upon filing pursuant to Section provisions of 5 U.S.C. 552, will be levels on the Floor and/or have no 19(b)(3)(A) 16 of the Act and available for website viewing and vacant Podia during September 2020, do subparagraph (f)(2) of Rule 19b–4 17 printing in the Commission’s Public not face the same operational disruption thereunder, because it establishes a due, Reference Room, 100 F Street NE, and potential financial impact during fee, or other charge imposed by the Washington, DC 20549 on official the partial reopening of the Floor. Exchange. Intermarket Competition. The business days between the hours of At any time within 60 days of the 10:00 a.m. and 3:00 p.m. Copies of the Exchange operates in a highly filing of such proposed rule change, the competitive market in which market filing also will be available for Commission summarily may inspection and copying at the principal participants can readily favor one of the temporarily suspend such rule change if office of the Exchange. All comments 16 competing option exchanges if they it appears to the Commission that such received will be posted without change. deem fee levels at a particular venue to action is necessary or appropriate in the be excessive. In such an environment, public interest, for the protection of Persons submitting comments are the Exchange must continually adjust its investors, or otherwise in furtherance of cautioned that we do not redact or edit fees to remain competitive with other the purposes of the Act. If the personal identifying information from exchanges and to attract order flow to Commission takes such action, the comment submissions. You should the Exchange. Based on publicly- Commission shall institute proceedings submit only information that you wish available information, and excluding under Section 19(b)(2)(B) 18 of the Act to to make available publicly. All index-based options, no single exchange determine whether the proposed rule submissions should refer to File currently has more than 16% of the change should be approved or Number SR–NYSEArca–2020–76, and market share of executed volume of disapproved. should be submitted on or before multiply-listed equity and ETF options September 23, 2020. trades.14 Therefore, currently no IV. Solicitation of Comments exchange possesses significant pricing Interested persons are invited to For the Commission, by the Division of Trading and Markets, pursuant to delegated power in the execution of multiply- submit written data, views, and authority.19 listed equity & ETF options order flow. arguments concerning the foregoing, More specifically, in June 2020, the including whether the proposed rule Jill M. Peterson, Exchange had slightly over 10% market change is consistent with the Act. Assistant Secretary. share of executed volume of multiply- Comments may be submitted by any of [FR Doc. 2020–19327 Filed 9–1–20; 8:45 am] 15 listed equity & ETF options trades. the following methods: BILLING CODE 8011–01–P The Exchange believes that the Electronic Comments proposed rule change reflects this • competitive environment because it Use the Commission’s internet waives fees for Qualifying Firms and is comment form (http://www.sec.gov/ rules/sro.shtml); or designed to reduce monthly costs for • Floor participants whose operations Send an email to rule-comments@ continue to be disrupted despite the fact sec.gov. Please include File Number SR– that the Trading Floor has partially NYSEArca–2020–76 on the subject line. reopened. In reducing this monthly Paper Comments financial burden, the proposed change • Send paper comments in triplicate to Secretary, Securities and Exchange 14 See supra note 11. 15 Based on OCC data, supra note 12, the Exchange’s market share in equity-based options 16 15 U.S.C. 78s(b)(3)(A). was 9.51% for the month of June 2019 and 10.65% 17 17 CFR 240.19b–4(f)(2). for the month of June 2020. 18 15 U.S.C. 78s(b)(2)(B). 19 17 CFR 200.30–3(a)(12).
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SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s participants that conduct business off- COMMISSION Statement of the Purpose of, and the Floor: Statutory Basis for, the Proposed Rule • Floor Access Fee; • [Release No. 34–89692; File No. SR– Change Floor Broker Handheld • Transport Charges NYSEAMER–2020–65] 1. Purpose • Floor Market Maker Podia; • Self-Regulatory Organizations; NYSE The purpose of this filing is to modify Booth Premises; and the Fee Schedule to waive certain Floor- • 6 American LLC; Notice of Filing and Wire Services. based fixed fees for September 2020 for Immediate Effectiveness of Proposed Like the August fee waiver, the market participants that have been proposed fee change is designed to Change To Modify the NYSE American unable to resume their Floor operations reduce monthly costs for Qualifying Options Fee Schedule to a certain capacity level, as discussed Firms whose operations continue to be August 27, 2020. below. The Exchange proposes to disrupted, despite the fact that the implement the fee change effective Trading Floor has partially reopened. In 1 Pursuant to Section 19(b)(1) of the August 26, 2020. reducing this monthly financial burden, Securities Exchange Act of 1934 (the On March 18, 2020, the Exchange the proposed change would allow ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 announced that it would temporarily Qualifying Firms to reallocate funds to notice is hereby given that, on August close the Trading Floor, effective assist with the cost of shifting and 26, 2020, NYSE American LLC (‘‘NYSE Monday, March 23, 2020, as a maintaining their prior fully-staffed on- American’’ or the ‘‘Exchange’’) filed precautionary measure to prevent the Floor operations to off-Floor and recoup with the Securities and Exchange potential spread of COVID–19. losses as a result of the partial reopening Commission (the ‘‘Commission’’) the Following the temporary closure of the of the Floor. Absent this change, such proposed rule change as described in Trading Floor, the Exchange temporarily participants may experience an Items I, II, and III below, which Items modified certain fees for April, May and unexpected increase in the cost of doing 4 have been prepared by the self- June 2020 (the ‘‘fee waiver’’). Although business on the Exchange.7 The regulatory organization. The the Trading Floor partially reopened on Exchange believes that all Qualifying May 26, 2020 and Floor-based open Commission is publishing this notice to Firms would benefit from this proposed outcry activity is supported, certain solicit comments on the proposed rule fee change. participants have been unable to resume change from interested persons. pre-Floor closure levels of operations. 2. Statutory Basis I. Self-Regulatory Organization’s As a result, the Exchange extended the The Exchange believes that the Statement of the Terms of Substance of fee waiver through July, and later proposed rule change is consistent with the Proposed Rule Change August, 2020, but only for Floor Broker Section 6(b) of the Act,8 in general, and firms that were unable to operate at furthers the objectives of Sections The Exchange proposes to modify the more than 50% of their March 2020 on- 6(b)(4) and (5) of the Act,9 in particular, NYSE American Options Fee Schedule Floor staffing levels and for Market because it provides for the equitable (‘‘Fee Schedule’’) to waive certain Floor- Maker firms that have vacant or allocation of reasonable dues, fees, and based fixed fees for September 2020. ‘‘unmanned’’ Podia for the entire month other charges among its members, The Exchange proposes to implement due to COVID–19 related considerations issuers and other persons using its 5 the fee change effective August 26, (the ‘‘Qualifying Firms’’). Because the facilities and does not unfairly 2020. The proposed change is available Trading Floor will continue to operate discriminate between customers, on the Exchange’s website at with reduced capacity, the Exchange issuers, brokers or dealers. www.nyse.com, at the principal office of proposes to extend the August fee The Exchange operates in a highly the Exchange, and at the Commission’s waiver for Qualifying Firms through competitive market. The Commission Public Reference Room. September 2020. has repeatedly expressed its preference Specifically, the proposed fee waiver for competition over regulatory II. Self-Regulatory Organization’s covers the following fixed fees for intervention in determining prices, Statement of the Purpose of, and Qualifying Firms, which relate directly products, and services in the securities Statutory Basis for, the Proposed Rule to Floor operations, are charged only to markets. In Regulation NMS, the Change Floor participants and do not apply to Commission highlighted the importance of market forces in determining prices In its filing with the Commission, the 4 See Securities Exchange Act Release Nos. 88595 and SRO revenues and, also, recognized self-regulatory organization included (April 8, 2020), 85 FR 20737 (April 14, 2020) (SR– NYSEAMER–2020–25) (waiving Floor-based fixed that current regulation of the market statements concerning the purpose of, fees); 88840 (May 8, 2020), 85 FR 28992 (May 14, system ‘‘has been remarkably successful and basis for, the proposed rule change 2020) (SR–NYSEAMER–2020–37) (extending April in promoting market competition in its and discussed any comments it received 2020 fee changes through May 2020); and 89049 (June 11, 2020), 85 FR 36649 (June 17, 2020) (SR– on the proposed rule change. The text 6 NYSEAMER–2020–44) (extending April and May See proposed Fee Schedule, Section III., of those statements may be examined at fee changes through June 2020). See also Fee Monthly Trading Permit, Rights, Floor Access and the places specified in Item IV below. Schedule, Section III. Monthly Trading Permit, Premium Product Fees, and IV. Monthly Floor Communication, Connectivity, Equipment and The Exchange has prepared summaries, Rights, Floor Access and Premium Product Fees, and IV. Monthly Floor Communication, Booth or Podia Fees. set forth in sections A, B, and C below, Connectivity, Equipment and Booth or Podia Fees. 7 The Exchange will refund participants of the of the most significant parts of such 5 See Securities Exchange Act Release Nos. 89241 Floor Broker Prepayment Program for any prepaid statements. (July 7, 2020), 85 FR 42034 (July 13, 2020) (SR– September 2020 fees that are waived. See proposed NYSEAMER–2020–47); 89482 (August 5, 2020), 85 Fee Schedule, Section III.E.1 (providing that ‘‘the FR 48577 (August 11, 2020) (SR–NYSEAMER– Exchange will refund certain of the prepaid Eligible 2020–55) (the ‘‘August fee waiver’’). See also Fee Fixed costs that were waived for July through Schedule, Section III., Monthly Trading Permit, September 2020 for Qualifying Firms, as defined, 1 15 U.S.C. 78s(b)(1). Rights, Floor Access and Premium Product Fees, and set forth in, Sections III.B and IV’’). 2 15 U.S.C. 78a. and IV. Monthly Floor Communication, 8 15 U.S.C. 78f(b). 3 17 CFR 240.19b–4. Connectivity, Equipment and Booth or Podia Fees. 9 15 U.S.C. 78f(b)(4) and (5).
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broader forms that are most important to the fee waiver would affect all similarly- and potential financial impact during investors and listed companies.’’ 10 situated market participants on an equal the partial reopening of the Floor. There are currently 16 registered and non-discriminatory basis. Intermarket Competition. The options exchanges competing for order Finally, the Exchange believes that it Exchange operates in a highly flow. Based on publicly-available is subject to significant competitive competitive market in which market information, and excluding index-based forces, as described below in the participants can readily favor one of the options, no single exchange has more Exchange’s statement regarding the 16 competing option exchanges if they than 16% of the market share of burden on competition. deem fee levels at a particular venue to executed volume of multiply-listed B. Self-Regulatory Organization’s be excessive. In such an environment, equity and ETF options trades.11 Statement on Burden on Competition the Exchange must continually adjust its Therefore, currently no exchange fees to remain competitive with other possesses significant pricing power in In accordance with Section 6(b)(8) of exchanges and to attract order flow to the execution of multiply-listed equity & the Act, the Exchange does not believe the Exchange. Based on publicly- ETF options order flow. More that the proposed rule change would available information, and excluding specifically, in June 2020, the Exchange impose any burden on competition that index-based options, no single exchange had less than 10% market share of is not necessary or appropriate in currently has more than 16% of the executed volume of multiply-listed furtherance of the purposes of the Act. market share of executed volume of equity & ETF options trades.12 The Exchange believes that the multiply-listed equity and ETF options proposed changes would encourage the This proposed fee change is trades.14 Therefore, currently no continued participation of Qualifying reasonable, equitable, and not unfairly exchange possesses significant pricing Firms, thereby promoting market depth, discriminatory because it would reduce power in the execution of multiply- price discovery and transparency and monthly costs for Qualifying Firms listed equity & ETF options order flow. enhancing order execution whose operations have been disrupted More specifically, in June 2020, the opportunities for all market despite the fact that the Trading Floor Exchange had less than 10% market participants. As a result, the Exchange has partially reopened because of the share of executed volume of multiply- believes that the proposed change social distancing requirements and/or listed equity & ETF options trades.15 other health concerns related to furthers the Commission’s goal in The Exchange believes that the resuming operation on the Floor. In adopting Regulation NMS of fostering proposed rule change reflects this reducing this monthly financial burden, integrated competition among orders, competitive environment because it the proposed change would allow which promotes ‘‘more efficient pricing waives fees for Qualifying Firms and is Qualifying Firms to reallocate funds to of individual stocks for all types of designed to reduce monthly costs for assist with the cost of shifting and orders, large and small.’’ 13 Floor participants whose operations maintaining their prior fully-staffed on- Intramarket Competition. The continue to be disrupted despite the fact Floor operations to off-Floor and recoup proposed change, which continues the that the Trading Floor has partially losses as a result of the partial fee waiver in place when the Floor was reopened. In reducing this monthly reopening. Absent this change, such temporarily closed but only for participants may experience an Qualifying Firms, is designed to reduce financial burden, the proposed change unexpected increase in the cost of doing monthly costs for Floor participants would allow affected participants to business on the Exchange. whose operations continue to be reallocate funds to assist with the cost The Exchange believes the proposed impacted, despite the fact that the of shifting and maintaining their prior rule change is an equitable allocation of Trading Floor has partially reopened. In fully-staffed on-Floor operations to off- its fees and credits as it merely reducing this monthly financial burden, Floor. Absent this change, Qualifying continues the August fee waiver, which the proposed change would allow Firms may experience an unintended affects fees charged only to Floor Qualifying Firms to reallocate funds to increase in the cost of doing business on participants and does not apply to assist with the cost of shifting and the Exchange, which would make the participants that conduct business off- maintaining their previously on-Floor Exchange a less competitive venue on Floor. The Exchange believes it is an operations to off-Floor. Absent this which to trade as compared to other equitable allocation of fees and credits change, such Qualifying Firms may options exchanges. to extend this fee waiver to Qualifying experience an unintended increase in C. Self-Regulatory Organization’s Firms because such firms have either the cost of doing business on the Statement on Comments on the less than half of their Floor staff (March Exchange, given that the Floor has only Proposed Rule Change Received From 2020) levels or have vacant podia—and reopened in a limited capacity. The Members, Participants, or Others this reduction in physical capacity on Exchange believes that the proposed No written comments were solicited the Floor impacts the speed, volume waiver of fees for Qualifying Firms or received with respect to the proposed and efficiency with which these firms would not impose a disparate burden on rule change. can operate, which is to their detriment. competition among market participants The Exchange believes that the on the Exchange because off-Floor III. Date of Effectiveness of the proposal is not unfairly discriminatory market participants are not subject to Proposed Rule Change and Timing for because the proposed continuation of these Floor-based fixed fees, and Floor- Commission Action based firms that are not subject to the 10 The foregoing rule change is effective See Securities Exchange Act Release No. 51808 extent of staffing shortfalls as the (June 9, 2005), 70 FR 37496, 37499 (June 29, 2005) upon filing pursuant to Section Qualifying Firms—i.e., have at least (S7–10–04) (‘‘Reg NMS Adopting Release’’). 19(b)(3)(A) 16 of the Act and 11 The OCC publishes options and futures volume 50% of their March 2020 staffing levels in a variety of formats, including daily and monthly on the Floor and/or have no vacant 14 volume by exchange, available here: https:// Podia during September 2020, do not See supra note 11. www.theocc.com/market-data/volume/default.jsp. 15 Based on OCC data, supra note 12, the 12 Based on OCC data, see id., the Exchange’s face the same operational disruption Exchange’s market share in equity-based options market share in equity-based options increased was 8.20% for the month of June 2019 and 8.32% slightly from 8.20% for the month of June 2019 to 13 See Reg NMS Adopting Release, supra note 10, for the month of June 2020. 8.32% for the month of June 2020. at 37499. 16 15 U.S.C. 78s(b)(3)(A).
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subparagraph (f)(2) of Rule 19b–4 17 Reference Room, 100 F Street NE, DEPARTMENT OF STATE thereunder, because it establishes a due, Washington, DC 20549 on official [Public Notice 11196] fee, or other charge imposed by the business days between the hours of Exchange. 10:00 a.m. and 3:00 p.m. Copies of the 60-Day Notice of Proposed Information At any time within 60 days of the filing also will be available for Collection: Request To Change End- filing of such proposed rule change, the inspection and copying at the principal User, End-Use and/or Destination of Commission summarily may office of the Exchange. All comments Hardware temporarily suspend such rule change if received will be posted without change. it appears to the Commission that such Persons submitting comments are ACTION: Notice of request for public action is necessary or appropriate in the cautioned that we do not redact or edit comment. public interest, for the protection of personal identifying information from investors, or otherwise in furtherance of SUMMARY: The Department of State is comment submissions. You should the purposes of the Act. If the seeking Office of Management and Commission takes such action, the submit only information that you wish Budget (OMB) approval for the Commission shall institute proceedings to make available publicly. All information collection described below. under Section 19(b)(2)(B) 18 of the Act to submissions should refer to File In accordance with the Paperwork determine whether the proposed rule Number SR–NYSEAMER–2020–65, and Reduction Act of 1995, we are change should be approved or should be submitted on or before requesting comments on this collection disapproved. September 23, 2020. from all interested individuals and organizations. The purpose of this IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated notice is to allow 60 days for public Interested persons are invited to authority.19 comment preceding submission of the submit written data, views, and Jill M. Peterson, collection to OMB. arguments concerning the foregoing, DATES: The Department will accept Assistant Secretary. including whether the proposed rule comments from the public up to change is consistent with the Act. [FR Doc. 2020–19326 Filed 9–1–20; 8:45 am] November 2, 2020. BILLING CODE 8011–01–P Comments may be submitted by any of ADDRESSES: You may submit comments the following methods: by any of the following methods: Electronic Comments • Web: Persons with access to the internet may comment on this notice by • Use the Commission’s internet SMALL BUSINESS ADMINISTRATION comment form (http://www.sec.gov/ going to www.Regulations.gov. You can rules/sro.shtml); or Claritas Capital Specialty Debt Fund, search for the document by entering • Send an email to rule-comments@ L.P.; License No. 04/04–0310; ‘‘Docket Number: DOS–2020–0038’’ in the Search field. Then click the sec.gov. Please include File Number SR– Surrender of License of Small ‘‘Comment Now’’ button and complete NYSEAMER–2020–65 on the subject Business Investment Company line. the comment form. • Email: DDTCPublicComments@ Pursuant to the authority granted to Paper Comments state.gov, ATTN: Advisory Opinion the United States Small Business • Send paper comments in triplicate Form. Administration under the Small • Regular Mail: Send written to Secretary, Securities and Exchange Business Investment Act of 1958, as Commission, 100 F Street NE, comments to: Directorate of Defense amended, under Section 309 of the Act Washington, DC 20549–1090. Trade Controls, Department of State; and Section 107.1900 of the Small 2401 E St. NW, Suite H1205, All submissions should refer to File Business Administration Rules and Number SR–NYSEAMER–2020–65. This Washington, DC 20522. Regulations (13 CFR 107.1900) to file number should be included on the You must include the DS form function as a small business investment subject line if email is used. To help the number (if applicable), information Commission process and review your company under the Small Business collection title, and the OMB control comments more efficiently, please use Investment Company License No. 04/ number in any correspondence. only one method. The Commission will 04–0310 issued to Claritas Capital FOR FURTHER INFORMATION CONTACT: post all comments on the Commission’s Specialty Debt Fund, L.P. said license is Direct requests for additional internet website (http://www.sec.gov/ hereby declared null and void. information regarding the collection rules/sro.shtml). Copies of the U.S. Small Business Administration. listed in this notice, including requests for copies of the proposed collection submission, all subsequent Christopher L. Weaver, amendments, all written statements instrument and supporting documents, Acting Associate Administrator, Office of to Andrea Battista, Directorate of with respect to the proposed rule Investment and Innovation. change that are filed with the Defense Trade Controls, Department of Commission, and all written [FR Doc. 2020–18849 Filed 9–1–20; 8:45 am] State, who may be reached at communications relating to the BILLING CODE P [email protected] or 202–663–3136 proposed rule change between the (please include subject line ‘‘ATTN: Commission and any person, other than Advisory Opinion Form’’). those that may be withheld from the SUPPLEMENTARY INFORMATION: public in accordance with the • Title of Information Collection: provisions of 5 U.S.C. 552, will be Request to Change End-User, End-Use available for website viewing and and/or Destination of Hardware. printing in the Commission’s Public • OMB Control Number: 1405–0173. • Type of Request: Revision of a 17 17 CFR 240.19b–4(f)(2). Currently Approved Collection. 18 15 U.S.C. 78s(b)(2)(B). 19 17 CFR 200.30–3(a)(12). • Originating Office: T/PM/DDTC.
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• Form Number: DS–6004. management system, The Defense including the use of automated • Respondents: Individuals, Business, Export Control and Compliance System collection techniques or other forms of or Nonprofit Organizations engaged in (DECCS). information technology, when the business of exporting or temporarily appropriate; and (4) whether the Neal Kringel, importing defense articles or defense collection of information is necessary services. Director of Management, Directorate of for the proper performance of the Defense Trade Controls, Department of State. • Estimated Number of Respondents: functions of the Board, including 1,563. [FR Doc. 2020–19396 Filed 9–1–20; 8:45 am] whether the collection has practical • Estimated Number of Responses: BILLING CODE 4710–25–P utility. Submitted comments will be 1,563. summarized and included in the • Average Time Per Response: 1 hour. • Board’s request for OMB approval. Total Estimated Burden Time: 1,563 SURFACE TRANSPORTATION BOARD hours. Description of Collection • Frequency: On occasion. 60–Day Notice of Intent To Seek • Title: Rail Service Data Collection. Obligation to Respond: Voluntary. Extension of Approval for Information OMB Control Number: 2140–0033. We are soliciting public comments to Collection: Rail Service Data STB Form Number: None. permit the Department to: Type of Review: Extension without • Evaluate the accuracy of our AGENCY: Surface Transportation Board. estimate of the time and cost burden for change. ACTION: Notice and request for Respondents: Class I railroads (on this proposed collection, including the comments. validity of the methodology and behalf of themselves and the Chicago assumptions used. SUMMARY: As required by the Paperwork Transportation Coordination Office • Enhance the quality, utility, and Reduction Act of 1995 (PRA), the (‘‘CTCO’’)). clarity of the information to be Surface Transportation Board (STB or Number of Respondents: Seven. collected. Board) gives notice of its intent to seek Estimated Time per Response: The • Minimize the reporting burden on approval from the Office of Management collection seeks three related responses, those who are to respond, including the and Budget (OMB) for an extension of as indicated in the table below. use of automated collection techniques the information collection of Rail or other forms of information Service Data, as described below. TABLE—ESTIMATED TIME PER RESPONSE technology. DATES: Comments on this information Please note that comments submitted collection should be submitted by in response to this Notice are public Estimated November 2, 2020. time per record. Before including any detailed Type of responses ADDRESSES: Direct all comments to response personal information, you should be Chris Oehrle, Surface Transportation (hours) aware that your comments as submitted, Board, 395 E Street SW, Washington, DC including your personal information, Weekly ...... 1.5 20423–0001, and to [email protected]. When will be available for public review. Quarterly ...... 1.5 submitting comments, please refer to On occasion ...... 1.5 Abstract of Proposed Collection ‘‘Paperwork Reduction Act Comments, The Request to Change End-User, Rail Service Data.’’ For further Frequency: The frequencies of the End-Use and/or Destination of information regarding this collection, collection are set forth in the table Hardware information collection is used contact Michael Higgins, Deputy below. to request DDTC approval prior to any Director, Office of Public Assistance, sale, transfer, transshipment, or Governmental Affairs, and Compliance TABLE—FREQUENCY OF RESPONSES disposal, whether permanent or (OPAGAC), at (202) 245–0284 and at temporary, of classified or unclassified [email protected]. Assistance for Frequency of the hearing impaired is available Type of responses responses defense articles to any end-user, end-use (year) or destination other than as stated on a through the Federal Relay Service at license or other approval. (800) 877–8339. Weekly ...... 52 SUPPLEMENTARY INFORMATION: Comments Quarterly ...... 4 Methodology are requested concerning: (1) The On occasion ...... 2 Applicants are referred to ITAR 123.9 accuracy of the Board’s burden for guidance on information to submit estimates; (2) ways to enhance the Total Burden Hours (annually regarding the request to change end- quality, utility, and clarity of the including all respondents): The total user, end-use and/or destination of information collected; (3) ways to annual burden hours are estimated to be hardware. A DS–6004 may be submitted minimize the burden of the collection of no more than 591 hours per year, as electronically through DDTC’s case information on the respondents, indicated in the table below.
TABLE—TOTAL BURDEN HOURS (PER YEAR)
Estimated Number of time per Frequency of Total yearly Type of responses respondents response responses burden hours (hours) (year)
Weekly ...... 7 1.5 52 546 Quarterly ...... 7 1.5 4 42 On occasion ...... 1 1.5 2 3
Total ...... 591
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Total ‘‘Non-hour Burden’’ Cost: There Board) gives notice of its intent to seek Needs and Uses: Under 49 CFR are no other costs identified because approval from the Office of Management 1108.5, arbitration commences with a filings are submitted electronically to and Budget (OMB) for the existing written complaint that contains a the Board. collections without OMB control statement that the relevant parties are Needs and Uses: Under 49 CFR part numbers of the Joint Notice of Intent to participants in the Board’s arbitration 1250, the Board requires the nation’s Arbitrate and Notice of Availability for program, or that the complainant is seven Class I (large) railroads and the Arbitrator Roster, as described willing to arbitrate the dispute pursuant Chicago Transportation Coordination separately below. to the Board’s arbitration procedures. Office (CTCO), through its Class I DATES: Comments on these information The respondent’s answer to the written members, to report certain railroad collections should be submitted by complaint must then indicate the service performance metrics on a November 2, 2020. respondent’s participation in the weekly basis and certain other Board’s arbitration program or its information on a quarterly and ADDRESSES: Direct all comments to Chris Oehrle, Surface Transportation willingness to arbitrate the dispute at occasional basis. This collection of rail hand pursuant to the Board’s arbitration service data aids the Board in Board, 395 E Street SW, Washington, DC 20423–0001, and to [email protected]. When procedures. identifying rail service issues, allowing As an alternative to filing a written submitting comments, please refer to the Board to better understand current complaint, parties may submit a joint ‘‘Paperwork Reduction Act Comments, service issues and to identify and notice to the Board, indicating the Arbitration Procedures under 49 CFR address potential future regional and consent of both parties to submit an 1108.’’ For further information regarding national service disruptions more issue in dispute to the Board’s this collection, contact Michael Higgins, quickly. The transparency resulting arbitration program. In the joint notice, Deputy Director, Office of Public from this collection also benefits rail parties state the issue(s) that they are Assistance, Governmental Affairs, and shippers and other stakeholders by willing to submit to arbitration. The Compliance, at (202) 245–0284 or at helping them to better plan operations notice must contain a statement that [email protected]. Assistance for and make informed decisions based on would indicate that all relevant parties the hearing impaired is available publicly available, near real-time data are participants in the Board’s through the Federal Relay Service at and their own analysis of performance arbitration program pursuant to (800) 877–8339. trends over time. § 1108.3(a), or that the relevant parties Under the PRA, a federal agency that SUPPLEMENTARY INFORMATION: Comments are willing to arbitrate voluntarily a conducts or sponsors a collection of are requested concerning: (1) The matter pursuant to the Board’s information must display a currently accuracy of the Board’s burden arbitration procedures, and the relief valid OMB control number. A collection estimates; (2) ways to enhance the requested. The notice must also indicate of information, which is defined in 44 quality, utility, and clarity of the whether parties have agreed to a three- U.S.C. 3502(3) and 5 CFR 1320.3(c), information collected; (3) ways to member arbitration panel or a single includes agency requirements that minimize the burden of the collection of arbitrator and must indicate whether the persons submit reports, keep records, or information on the respondents, parties have mutually agreed to a lower provide information to the agency, third including the use of automated amount of potential liability in lieu of parties, or the public. Under 44 U.S.C. collection techniques or other forms of the monetary award cap that would 3506(c)(2)(A), federal agencies are information technology, when otherwise be applicable. The joint required to provide, prior to an agency’s appropriate; and (4) whether the notice encourages greater use of submitting a collection to OMB for collection of information is necessary arbitration to resolve disputes at the approval, a 60-day notice and comment for the proper performance of the Board. period through publication in the functions of the Board, including Federal Register concerning each whether the collection has practical Information Collection 2 proposed collection of information, utility. Submitted comments will be Title: Notice of Availability for including each proposed extension of an summarized and included in the Arbitrator Roster. existing collection of information. Board’s request for OMB approval. OMB Control Number: 2140–XXXX. Dated: August 28, 2020. STB Form Number: None. Description of Collections Type of Review: Existing collection Aretha Laws-Byrum, Information Collection 1 without an OMB control number. Clearance Clerk. Respondents: Potential arbitrators. [FR Doc. 2020–19409 Filed 9–1–20; 8:45 am] Title: Joint Notice of Intent to Number of Respondents: 14. BILLING CODE 4915–01–P Arbitrate. Estimated Time per Response: One OMB Control Number: 2140–XXXX. hour. STB Form Number: None. Frequency: Annually. SURFACE TRANSPORTATION BOARD Type of Review: Existing collection Total Burden Hours (annually without an OMB control number. including all respondents): 14. 60-Day Notice of Intent To Seek Respondents: Parties seeking to Total ‘‘Non-hour Burden’’ Cost: None Approval for Information Collections: submit to arbitration certain matters identified. Filings are submitted Joint Notice of Intent To Arbitrate and before the Board. electronically to the Board. Notice of Availability for Arbitrator Number of Respondents: One. Needs and Uses: Under 49 CFR Roster Estimated Time per Response: One 1108.6(b), an arbitration roster is AGENCY: Surface Transportation Board. hour. compiled by the Chairman, and ACTION: Notice and request for Frequency: On occasion. potential interested, qualified persons comments. Total Burden Hours (annually who wish to be placed on the Board’s including all respondents): One. arbitration roster must submit notice of SUMMARY: As required by the Paperwork Total ‘‘Non-hour Burden’’ Cost: None their availability to be added to the Reduction Act of 1995 (PRA), the identified. Filings are submitted roster. The Chairman may augment the Surface Transportation Board (STB or electronically to the Board. roster at any time to include eligible
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arbitrators and remove from the roster exclusion process in October 2019, and which is set out in Annex A of the any arbitrators who are no longer has issued eight product exclusion August 20 notice, was effective on available or eligible. Potential arbitrators notices under this action. These September 1, 2019. List 2, which is set must also update their availability and exclusions will expire on September 1, out in Annex C of the August 20 notice, information annually, if they wish to 2020. On June 26, July 17, and August was scheduled to take effect on remain available for the arbitration 11, 2020, the U.S. Trade Representative December 15, 2019. Subsequently, the roster. The arbitration rosters are established processes for the public to U.S. Trade Representative announced available to the public on the Board’s comment on whether to extend determinations suspending until further website at https://dcms- particular exclusions granted under the notice the additional duties on products external.s3.amazonaws.com/DCMS_ $300 billion action for up to 12 months. set out in Annex C (List 2) and reducing External_PROD/1581607804924/ This notice announces the U.S. Trade the additional duties for the products 50102.pdf. Representative’s determination to covered in Annex A of (List 1) to 7.5 Under the PRA, a federal agency that extend certain exclusions through percent. See 84 FR 57144, 85 FR 3741. conducts or sponsors a collection of December 31, 2020. On October 24, 2019, the U.S. Trade information must display a currently DATES: The product exclusion Representative established a process by valid OMB control number. A collection extensions announced in this notice which U.S. stakeholders could request of information, which is defined in 44 will apply as of September 1, 2020, and exclusion of particular products U.S.C. 3502(3) and 5 CFR 1320.3(c), extend through December 31, 2020. U.S. classified within an eight-digit includes agency requirements that Customs and Border Protection will Harmonized Tariff Schedule of the persons submit reports, keep records, or issue instructions on entry guidance and United States (HTSUS) subheading provide information to the agency, third implementation. covered by List 1 of the $300 billion parties, or the public. Under 44 U.S.C. FOR FURTHER INFORMATION CONTACT: For action from the additional duties. See 84 3506(c)(2)(A), federal agencies are general questions about this notice, FR 57144 (October 24 notice). The required to provide, prior to an agency’s contact Associate General Counsel October 24 notice required submission submitting a collection to OMB for Philip Butler or Assistant General of requests for exclusion from the $300 approval, a 60-day notice and comment Counsel Benjamin Allen, or Director of billion action no later than January 31, period through publication in the Industrial Goods Justin Hoffmann at 2020, and noted that the U.S. Trade Federal Register concerning each (202) 395–5725. For specific questions Representative periodically would proposed collection of information, on customs classification or announce decisions. The U.S. Trade including each proposed extension of an implementation of the product Representative has issued eight notices existing collection of information. exclusions identified in the Annex to of product exclusions under this action. Dated: August 28, 2020. this notice, contact traderemedy@ These exclusions are scheduled to Jeffrey Herzig, cbp.dhs.gov. expire on September 1, 2020. On June 26, July 17, and August 11, Clearance Clerk. SUPPLEMENTARY INFORMATION: 2020, the U.S. Trade Representative [FR Doc. 2020–19411 Filed 9–1–20; 8:45 am] A. Background invited the public to comment on BILLING CODE 4915–01–P For background on the proceedings in whether to extend by up to 12 months, this investigation, please see prior particular exclusions granted under the notices including 82 FR 40213 (August $300 billion action. See 85 FR 38482 OFFICE OF THE UNITED STATES 24, 2017), 83 FR 14906 (April 6, 2018), (June 26, 2020); 85 FR 43639 (July 17, TRADE REPRESENTATIVE 84 FR 22564 (May 17, 2019), 84 FR 2020); 85 FR 48595 (August 11, 2020) 43304 (August 20, 2019), 84 FR 45821 (the $300 billion extension notices). Notice of Product Exclusion Under the $300 billion extension Extensions: China’s Acts, Policies, and (August 30, 2019), 84 FR 57144 (October 24, 2019), 84 FR 69447 (December 18, notices, commenters were asked to Practices Related to Technology address: Transfer, Intellectual Property, and 2019), 85 FR 3741 (January 22, 2020), 85 • Whether the particular product Innovation FR 13970 (March 10, 2020), 85 FR 15244 (March 17, 2020), 85 FR 17936 (March and/or a comparable product is AGENCY: Office of the United States 31, 2020), 85 FR 28693 (May 13, 2020), available from sources in the United Trade Representative. 85 FR 32099 (May 28, 2020), 85 FR States and/or in third countries. • ACTION: Notice of product exclusion 35975 (June 12, 2020), 85 FR 38482 Any changes in the global supply extensions. (June 26, 2020), 85 FR 41658 (July 10, chain since September 2019 with 2020), 85 FR 43639 (July 17, 2020), 85 respect to the particular product, or any SUMMARY: On August 20, 2019, at the FR 44563 (July 23, 2020), 85 FR 48595 other relevant industry developments. direction of the President, the U.S. (August 11, 2020), and 85 FR 48627 • Efforts, if any, importers or U.S. Trade Representative determined to (August 11, 2020). purchasers have undertaken since modify the action being taken in the In a notice published on August 20, September 2019 to source the product Section 301 investigation of China’s 2019, the U.S. Trade Representative, at from the United States or third acts, policies, and practices related to the direction of the President, countries. technology transfer, intellectual announced a determination to modify In addition, commenters who were property, and innovation by imposing the action being taken in the Section importers and/or purchasers of the additional duties of 10 percent ad 301 investigation by imposing an products covered by an exclusion were valorem on goods of China with an additional 10 percent ad valorem duty asked to provide information regarding: annual trade value of approximately on products of China with an annual • Their efforts since September 2019 $300 billion. The additional duties on aggregate trade value of approximately to source the product from the United products in List 1, which is set out in $300 billion. 84 FR 43304 (August 20 States or third countries. Annex A of that action, became effective notice). The August 20 notice contains • The value and quantity of the on September 1, 2019. The U.S. Trade two separate lists of tariff subheadings, Chinese-origin product covered by the Representative initiated a product with two different effective dates. List 1, specific exclusion request purchased in
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2018 and 2019, and whether these Trade Act of 1974, as amended, and in concerning extension of the pertinent purchases are from a related company. accordance with the advice of the exclusions. • Whether Chinese suppliers have interagency Section 301 Committee, the In accordance with the October 24 lowered their prices for products U.S. Trade Representative has notice, the exclusions are available for covered by the exclusion following the determined to extend certain product any product that meets the description imposition of duties. exclusions granted under the $300 in the Annexes, regardless of whether • The value and quantity of the billion action, as set out in the Annexes the importer filed an exclusion request. product covered by the exclusion to this notice. Further, the scope of each exclusion is purchased from domestic and third The $300 billion extension notices governed by the scope of the ten-digit country sources in 2018 and 2019. provided that the U.S. Trade HTSUS headings and product • The commenter’s gross revenue for descriptions in the Annexes to this Representative would consider 2018 and 2019. notice, and not by the product extensions of up to 12 months. In light • Whether the Chinese-origin product descriptions set out in any particular of the cumulative effect of current and of concern is sold as a final product or request for exclusion. as an input. possible future exclusions or extensions • Whether the imposition of duties on of exclusions on the effectiveness of the Joseph Barloon, the products covered by the exclusion action taken in this investigation, the General Counsel, Office of the United States will result in severe economic harm to U.S. Trade Representative has Trade Representative. the commenter or other U.S. interests. determined to extend the exclusions in Annexes for Extensions of Certain • Any additional information in the Annexes to this notice for less than Product Exclusions From Tranche 4 12 months—through December 31, support or in opposition of the Annex A extending the exclusion. The June 26, 2020. To date, the U.S. Trade 2020 notice required the submission of Representative has granted more than A. Effective with respect to goods comments no later than July 30, 2020. 6,800 exclusion requests, has extended entered for consumption, or withdrawn The July 17, 2020 notice required the some of these exclusions, and may from warehouse for consumption, on or submission of comments no later than consider further extensions of after 12:01 a.m. eastern daylight time on August 14, 2020. The August 11, 2020 exclusions. The U.S. Trade September 1, 2020 and before 11:59 notice required the submission of Representative will take account of the p.m. eastern daylight time on December comments no later than August 20, cumulative effect of exclusions in 31, 2020, subchapter III of chapter 99 of 2020. considering the possible further the Harmonized Tariff Schedule of the extension of the exclusions covered by United States (HTSUS) is modified: B. Determination To Extend Certain this notice, as well as possible 1. By inserting the following new Exclusions extensions of exclusions of other heading 9903.88.57 in numerical Based on evaluation of the factors set products covered by the action in this sequence, with the material in the new out in the October 24 notice and the investigation. The U.S. Trade heading inserted in the columns of the $300 billion extension notices, which Representative’s determination also HTSUS labeled ‘‘Heading/Subheading’’, are summarized above, pursuant to takes into account advice from advisory ‘‘Article Description’’, and ‘‘Rates of sections 301(b), 301(c), and 307(a) of the committees and any public comments Duty 1-General’’, respectively:
Rates of duty Heading/Subheading Article description 1 2 General Special
‘‘9903.88.57 ...... Effective with respect to entries on or after September 1, The duty provided in the ap- 2020, and through December 31, 2020, articles the plicable subheading’’ product of China, as provided for in U.S. note 20(jjj) to this subchapter, each covered by an exclusion granted by the U.S. Trade Representative.
2. by inserting the following new U.S. heading 9903.88.57, the additional (11) 6210.10.5000 note 20(jjj) to subchapter III of chapter duties provided for in heading (12) 6307.90.6090 99 in numerical sequence: 9903.88.15 shall not apply to the (13) 6307.90.6800 following particular products, which are (14) 6506.10.6030 ‘‘(jjj) The U.S. Trade Representative (15) Cynomolgus macaques (Macaca determined to establish a process by provided for in the enumerated statistical reporting numbers: fascicularis) (also known as crab- which particular products classified in eating macaques or long-tailed (1) 0505.10.0050 heading 9903.88.15 and provided for in macaques) and rhesus macaques U.S. notes 20(r) and 20(s) to this (2) 0505.10.0055 (3) 3401.19.0000 (Macaca mulatta), captive bred for subchapter could be excluded from the (4) 3926.90.9910 research (described in statistical additional duties imposed by heading (5) 4015.19.0510 reporting number 0106.11.0000) 9903.88.15. See 84 FR 43304 (August (6) 4015.19.0550 (16) Feathers of a kind used for stuffing, 20, 2019), 84 FR 45821 (August 30, (7) 4818.90.0000 prior to July 1, 2020; of ducks or geese, not further 2019), 84 FR 57144 (October 24, 2019), 4818.90.0020 or 4818.90.0080 worked than cleaned, disinfected or and 85 FR 3741 (January 22, 2020). effective July 1, 2020 treated for preservation, the Pursuant to the product exclusion (8) 5210.11.4040 foregoing other than feathers process, the U.S. Trade Representative (9) 5210.11.6020 meeting both test standards 4 and has determined that, as provided in (10) 5504.10.0000 10.1 of Federal Standard 148a
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promulgated by the General (25) Wallpaper, other than described in (described in statistical reporting Services Administration (described subheading 4814.20.00, with floral, number 6208.91.1020) in statistical reporting number landscape, figure or abstract designs (37) Girls’ fleece bathrobes, each beltless 0505.10.0060) or solid backgrounds painted by but featuring a hook-and-loop tab (17) Sodium alginate resins (CAS No. hand, whether or not with (described in statistical reporting 9005–38–3) (described in statistical applications of metal leaf (described number 6208.92.0020) reporting number 3913.10.0000) in statistical reporting number (38) Blankets (other than electric (18) Shower heads of plastics, designed 4814.90.0200) blankets) of cotton, woven, each to be fixed, hand-held, height- (26) Printed art and pictorial books, measuring at least 116 cm but not adjustable or combinations thereof, each valued at least $5 but not more more than 118 cm on an edge and parts of such shower heads than $17, each measuring at least 22 (described in statistical reporting (described in statistical reporting cm but not more than 39 cm in number 6301.30.0010) number 3924.90.5650) height and at least 14 cm but not (39) Blankets (other than electric (19) Sets of three polyvinyl chloride- more than 32 cm in width, blankets) of cotton, other than coated foam pads, of plastics, of a weighing not more than 3 kg, with woven, each measuring at least 116 kind used to assemble flotation die-cut or tipped-in extra pages and cm but not more than 118 cm on an work vests by passing adjustable bound with foil stamping or with edge (described in statistical straps with buckles through slots in silkscreen on the cover stock reporting number 6301.30.0020) the pads, each set comprising two (described in statistical reporting (40) Dust covers of knitted polyester irregularly shaped front/side pads number 4901.99.0065) fabric, designed for bed mattresses and one rectangular back pad (27) Women’s knit robes in chief weight and pillows (described in statistical (described in statistical reporting of cotton, with hook and loop tab reporting number 6302.10.0020) number 3926.90.9990 prior to July closure (described in statistical (41) Crib sheets of muslin cotton, fitted 1, 2020; described in statistical reporting number 6108.91.0030) with elastic (described in statistical reporting number 3926.90.9985 (28) Babies’ gowns of cotton knitted reporting number 6302.31.9020) effective July 1, 2020) interlock fabric, each with sleeves, (20) Bowls of molded plastics, with (42) Protective covers of cotton for neck opening and elasticized pillows, not knitted or crocheted, of clips for retaining guide wires bottom opening (described in during surgical procedures cotton, not napped or printed, each statistical reporting number with full encasement construction (described in statistical reporting 6111.20.6070) number 3926.90.9990 prior to July and zipper opening (described in (29) Babies’ sleep sacks of cotton statistical reporting number 1, 2020; described in statistical interlock knitted fabric, sleeveless, reporting number 3926.90.9985 6302.31.9040) each with neck opening and two- (43) Cold packs consisting of a single- effective July 1, 2020) way zipper (described in statistical (21) Coverings, of plastics, designed to use, instant, endothermic chemical reporting number 6111.20.6070) reaction cold pack combined with a fit over wound sites or casts thereby (30) Babies’ sleep sacks, knitted, of textile exterior lining (described in forming a protective seal for cotton, each with neck opening and statistical reporting number keeping the covered area dry and two-way zipper (described in 6307.90.9889 prior to July 1, 2020; debris free while showering or statistical reporting number described in statistical reporting bathing (described in statistical 6111.20.6070) reporting number 3926.90.9990 (31) Babies’ swaddle sacks of cotton number 6307.90.9891 effective July prior to July 1, 2020; described in knitted interlock fabric, each with 1, 2020) statistical reporting number sleeves and mitten cuffs (described (44) Disposable shoe and boot covers of 3926.90.9985 effective July 1, 2020) in statistical reporting number man-made fiber fabrics (described (22) Disposable graduated medicine 6111.20.6070) in statistical reporting number dispensing cups of plastics (32) Babies’ blanket sleepers of polyester 6307.90.9889 prior to July 1, 2020; (described in statistical reporting knitted fleece, sleeveless, each with described in statistical reporting number 3926.90.9990 prior to July two-way zipper (described in number 6307.90.9891 effective July 1, 2020; described in statistical statistical reporting number 1, 2020) reporting number 3926.90.9985 6111.30.5015) (45) Face masks and particulate effective July 1, 2020) (33) Gloves, containing less than 50 facepiece respirators, of textile (23) Single-use sterile drapes and covers percent by weight of textile fibers, fabrics (described in statistical of plastics, of a kind used to protect coated with rubber or plastics reporting number 6307.90.9889 the sterile field in surgical operating designed for enhanced grip prior to July 1, 2020; described in rooms (described in statistical (described in statistical reporting statistical reporting number reporting number 3926.90.9990 number 6116.10.6500) 6307.90.9845, 6307.90.9850, prior to July 1, 2020; described in (34) Men’s and boys’ cotton terry 6307.90.9870, or 6307.90.9875 statistical reporting number bathrobes with muslin trim, each effective July 1, 2020) 3926.90.9985 effective July 1, 2020) beltless but featuring a hook-and- (46) Hot packs of textile material, single- (24) Sterile decanters of polystyrene loop tab (described in statistical use (exothermic chemical reaction) plastics, each of a kind used to reporting number 6207.91.1000) (described in statistical reporting transfer aseptic fluids or medication (35) Women’s cotton terry bathrobes number 6307.90.9889 prior to July to and from sterile bags, vials or with muslin trim, each beltless but 1, 2020; described in statistical glass containers (described in featuring a hook-and-loop tab reporting number 6307.90.9891 statistical reporting number (described in statistical reporting effective July 1, 2020) 3926.90.9990 prior to July 1, 2020; number 6208.91.1010) (47) Laparotomy sponges of cotton described in statistical reporting (36) Girls’ cotton terry bathrobes with (described in statistical reporting number 3926.90.9985 effective July muslin trim, each beltless but number 6307.90.9889 prior to July 1, 2020) featuring a hook-and-loop tab 1, 2020; described in statistical
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reporting number 6307.90.9891 of water (described in statistical (66) Watch dials of brass, each effective July 1, 2020) reporting number 8467.89.5090) measuring at least 18 mm but not (48) Single-use blood pressure cuff (57) Parts of hand-operated faucets, of exceeding 50 mm in width and sleeves of textile materials copper, each weighing not more weighing at least 10 g but not more (described in statistical reporting than 5 kg (described in statistical than 20 g (described in statistical number 6307.90.9889 prior to July reporting number 8481.90.1000) reporting number 9114.30.4000) 1, 2020; described in statistical (58) Apparatus suitable for wearing on (67) Acoustic upright pianos, other than reporting number 6307.90.9891 the wrist, having time-display used, containing a case measuring effective July 1, 2020) functions, each article having an less than 111.76 cm in height (49) Single-use medical masks of textile accelerometer and being capable of (described in statistical reporting material (described in statistical displaying and transmitting data number 9201.10.0011) reporting number 6307.90.9889 sent to it by a network (e.g., (68) Acoustic upright pianos (other than prior to July 1, 2020; described in portable ADP unit, LAN or cellular used), each containing a case statistical reporting number network) (described in statistical measuring 111.76 cm or more, but 6307.90.9845, 6307.90.9850, or reporting number 8517.62.0090) less than 121.92 cm in height 6307.90.9870 effective July 1, 2020) (59) Tracking devices, each device (described in statistical reporting (50) Single-use stethoscope covers measuring not more than 86 mm on number 9201.10.0021) (described in statistical reporting a side (if rectangular) or 28 mm in (69) Acoustic upright pianos (other than number 6307.90.9889 prior to July diameter (if circular) and not more used), each containing a case 1, 2020; described in statistical than 7.5 mm in thickness, not measuring 121.92 cm or more but reporting number 6307.90.9891 weighing more than 15 g, designed less than 129.54 in height effective July 1, 2020) to be attached to another article and (described in statistical reporting (51) Woven gauze sponges of cotton in to establish a Bluetooth connection number 9201.10.0031) square or rectangular sizes with another device for the (70) Acoustic upright pianos (other than (described in statistical reporting purposes of providing relative used), each containing a case number 6307.90.9889 prior to July location information (described in measuring 129.54 cm or more in 1, 2020; described in statistical statistical reporting number height (described in statistical reporting number 6307.90.9891 8517.62.0090) reporting number 9201.10.0041) effective July 1, 2020) (52) Athletic, recreational and sporting (60) Wireless communication apparatus (71) Acoustic grand pianos (other than headgear comprising shells of that can receive audio data to be used), each containing a case polyvinyl chloride, polycarbonate distributed to wireless speakers measuring 152.4 cm or more but plastic or acrylonitrile butadiene (described in statistical reporting less than 167.64 cm in length styrene, each with an inner liner of number 8518.22.0000) (described in statistical reporting expanded polypropylene or (61) Television liquid crystal display number 9201.20.0021) expanded polystyrene, designed for (‘‘LCD’’) main board assemblies, (72) Acoustic grand pianos (other than use with bicycles (described in each consisting of a printed circuit used), each containing a case statistical reporting number board containing a television tuner measuring 167.64 cm or more but 6506.10.6045) and audio and video components less than 180.34 cm in length (53) Bright C1060 galvanized round (described in statistical reporting (described in statistical reporting wire, containing by weight 0.6 number 8529.90.1300) number 9201.20.0031) percent or more of carbon, (62) Protective Articles (described in (73) Acoustic grand pianos (other than measuring at least 0.034 mm but not statistical reporting number used), each containing a case more than 0.044 mm in diameter 9004.90.0000) measuring 180.34 cm or more but (described in statistical reporting (63) Prism binoculars, other than for use less than 195.58 cm in length number 7217.20.4530) with infrared light, comprising a (described in statistical reporting (54) Sewing machines of the household plastic, aluminum or magnesium number 9201.20.0041) type, each weighing not more than alloy body with a rubber jacket, (74) Acoustic grand pianos (other than 22.5 kg, having a touch screen with magnification ranging from at used), each containing a case control, a sewing light, a presser least 4X but not more than 22X and measuring 195.58 cm or more in foot lifter and an automatic needle aperture ranging from at least 21 length (described in statistical threader (described in statistical mm but not more than 56 mm reporting number 9201.20.0051) reporting number 8452.10.0090) (described in statistical reporting (75) Harp sharping levers of steel (55) Gasoline-powered earth-drilling number 9005.10.0040) (described in statistical reporting power augers, each weighing not (64) Liquid crystal display (‘‘LCD’’) number 9209.92.8000) more than 16 kg, having a gasoline modules, not capable of receiving or (76) Parts of child safety seats (described engine of a cylinder displacement processing a broadcast television in statistical reporting number not more than 55 cc and an output signal, each with a video display 9401.90.1085) shaft connectable to an auger bit, diagonal measuring not more than (77) Parts of child safety seats whether or not presented with one 191 cm (described in statistical incorporating springs (described in or more auger bits (described in reporting number 9013.80.9000) statistical reporting number statistical reporting number (65) Watch cases of stainless steel and 9401.90.1085) 8467.89.5060) titanium, not gold- or silver-plated, (78) Pillow shells of cotton, each filled (56) Gasoline powered or propane- unassembled, each measuring at with goose or duck down (described powered engines of a cylinder least 20 mm but not more than 48 in statistical reporting number displacement not more than 80 cc, mm in diameter and weighing at 9404.90.1000) each machine including a fitted least 50 g but not more than 250 g (79) Quilted pillow shells of cotton auger bit specially designed for (described in statistical reporting (described in statistical reporting cutting through ice covers of bodies number 9111.20.4000) number 9404.90.1000)
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(80) Quilted pillow shells of man-made brushes (described in statistical 4. by amending the Article fibers (described in statistical reporting number 9603.90.8050) Description of heading 9903.88.15: reporting number 9404.90.2000) (85) Paintings, drawings or pastels, each a. by deleting ‘‘9903.88.53 or’’ and by (81) Balance trainers of plastics, each executed entirely by hand (the inserting ‘‘9903.88.53,’’ in lieu thereof; measuring not more than 120 cm in foregoing other than drawings of and length by 45 cm in width by 27 cm heading 4906 and other than hand- painted or hand-decorated b. by inserting ‘‘or 9903.88.57,’’ after in height, containing an air bladder ‘‘9903.88.55’’. (described in statistical reporting manufactured articles), each number 9506.91.0030) measuring not more than 300 cm by Annex B not more than 2,000 cm (described (82) Arrowheads of metal (described in in statistical reporting number The following table is provided for statistical reporting number 9701.10.0000) informational purposes only. The table 9506.99.0520) (86) Postage stamps (described in contains a list of the original product (83) Brushes of natural goat hair bristles, statistical reporting number exclusions that are being extended by which are in lengths of at least 30 9704.00.0000) this notice. The original product mm but not more than 33 mm, (87) Collectors’ pieces of mineralogical exclusions were provided for in various enclosed in a plastic protective interest (described in statistical subdivisions in note 20 to subchapter III holder, for cleaning optical lenses reporting number 9705.00.0085)’’ of chapter 99 and an associated 9903.88 (described in statistical reporting 3. by amending the last sentence of heading. In addition, the table contains number 9603.90.8050) the first paragraph of U.S. note 20(r) to the corresponding subdivisions in new (84) Tufts of swine hair bristles, subchapter III of chapter 99 by: note 20(jjj) to subchapter III of Chapter oriented with the soft feather tipped a. By deleting ‘‘or (8)’’ and by 99 and new heading 9903.88.57 for the ends of the hairs facing up and the inserting ‘‘(8)’’ in lieu thereof; and product exclusions that are being hard, root ends of the hairs facing b. by inserting ‘‘; or (9) heading extended by this notice. The original down, with the root ends of the 9903.88.57 and U.S. note 20(jjj) to product exclusions expire on September hairs glued together to form a round subchapter III of chapter 99’’ after ‘‘U.S. 1, 2020. The exclusions that are being bottom not more than 7 mm in note 20(hhh) to subchapter III of chapter extended are effective from September diameter, for incorporation into 99’’. 1, 2020 until December 31, 2020.
Original product exclusions Corresponding extension of product exclusions Note 20 subdivision Chapter 99 heading Note 20 subdivision Chapter 99 heading
20(ww)(1) ...... 9903.88.44 20(jjj)(1) ...... 9903.88.57 20(fff)(1) ...... 9903.88.53 20(jjj)(2) ...... 9903.88.57 20(rr)(1) ...... 9903.88.39 20(jjj)(3) ...... 9903.88.57 20(rr)(2) ...... 9903.88.39 20(jjj)(4) ...... 9903.88.57 20(rr)(3) ...... 9903.88.39 20(jjj)(5) ...... 9903.88.57 20(rr)(4) ...... 9903.88.39 20(jjj)(6) ...... 9903.88.57 20(rr)(5) ...... 9903.88.39 20(jjj)(7) ...... 9903.88.57 20(bbb)(1) ...... 9903.88.49 20(jjj)(8) ...... 9903.88.57 20(bbb)(2) ...... 9903.88.49 20(jjj)(9) ...... 9903.88.57 20(fff)(2) ...... 9903.88.53 20(jjj)(10) ...... 9903.88.57 20(rr)(6) ...... 9903.88.39 20(jjj)(11) ...... 9903.88.57 20(rr)(7) ...... 9903.88.39 20(jjj)(12) ...... 9903.88.57 20(rr)(8) ...... 9903.88.39 20(jjj)(13) ...... 9903.88.57 20(zz)(2) ...... 9903.88.47 20(jjj)(14) ...... 9903.88.57 20(ddd)(1) ...... 9903.88.51 20(jjj)(15) ...... 9903.88.57 20(ddd)(2) ...... 9903.88.51 20(jjj)(16) ...... 9903.88.57 20(fff)(12) ...... 9903.88.53 20(jjj)(17) ...... 9903.88.57 20(ddd)(5) ...... 9903.88.51 20(jjj)(18) ...... 9903.88.57 20(fff)(17) ...... 9903.88.53 20(jjj)(19) ...... 9903.88.57 20(uu)(1) ...... 9903.88.42 20(jjj)(20) ...... 9903.88.57 20(ww)(6) ...... 9903.88.44 20(jjj)(21) ...... 9903.88.57 20(uu)(2) ...... 9903.88.42 20(jjj)(22) ...... 9903.88.57 20(uu)(4) ...... 9903.88.42 20(jjj)(23) ...... 9903.88.57 20(uu)(5) ...... 9903.88.42 20(jjj)(24) ...... 9903.88.57 20(ddd)(10) ...... 9903.88.51 20(jjj)(25) ...... 9903.88.57 20(ddd)(12) ...... 9903.88.51 20(jjj)(26) ...... 9903.88.57 20(fff)(18) ...... 9903.88.53 20(jjj)(27) ...... 9903.88.57 20(fff)(19) ...... 9903.88.53 20(jjj)(28) ...... 9903.88.57 20(fff)(21) ...... 9903.88.53 20(jjj)(29) ...... 9903.88.57 20(fff)(20) ...... 9903.88.53 20(jjj)(30) ...... 9903.88.57 20(fff)(22) ...... 9903.88.53 20(jjj)(31) ...... 9903.88.57 20(fff)(23) ...... 9903.88.53 20(jjj)(32) ...... 9903.88.57 20(bbb)(10) ...... 9903.88.49 20(jjj)(33) ...... 9903.88.57 20(fff)(24) ...... 9903.88.53 20(jjj)(34) ...... 9903.88.57 20(fff)(25) ...... 9903.88.53 20(jjj)(35) ...... 9903.88.57 20(fff)(26) ...... 9903.88.53 20(jjj)(36) ...... 9903.88.57 20(fff)(27) ...... 9903.88.53 20(jjj)(37) ...... 9903.88.57 20(fff)(28) ...... 9903.88.53 20(jjj)(38) ...... 9903.88.57 20(fff)(29) ...... 9903.88.53 20(jjj)(39) ...... 9903.88.57 20(ddd)(13) ...... 9903.88.51 20(jjj)(40) ...... 9903.88.57 20(fff)(30) ...... 9903.88.53 20(jjj)(41) ...... 9903.88.57
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Original product exclusions Corresponding extension of product exclusions Note 20 subdivision Chapter 99 heading Note 20 subdivision Chapter 99 heading
20(fff)(31) ...... 9903.88.53 20(jjj)(42) ...... 9903.88.57 20(uu)(6) ...... 9903.88.42 20(jjj)(43) ...... 9903.88.57 20(uu)(7) ...... 9903.88.42 20(jjj)(44) ...... 9903.88.57 20(uu)(9) ...... 9903.88.42 20(jjj)(45) ...... 9903.88.57 20(uu)(11) ...... 9903.88.42 20(jjj)(46) ...... 9903.88.57 20(uu)(12) ...... 9903.88.42 20(jjj)(47) ...... 9903.88.57 20(uu)(14) ...... 9903.88.42 20(jjj)(48) ...... 9903.88.57 20(uu)(15) ...... 9903.88.42 20(jjj)(49) ...... 9903.88.57 20(uu)(16) ...... 9903.88.42 20(jjj)(50) ...... 9903.88.57 20(uu)(17) ...... 9903.88.42 20(jjj)(51) ...... 9903.88.57 20(ddd)(20) ...... 9903.88.51 20(jjj)(52) ...... 9903.88.57 20(ddd)(21) ...... 9903.88.51 20(jjj)(53) ...... 9903.88.57 20(ddd)(25) ...... 9903.88.51 20(jjj)(54) ...... 9903.88.57 20(ddd)(26) ...... 9903.88.51 20(jjj)(55) ...... 9903.88.57 20(ddd)(27) ...... 9903.88.51 20(jjj)(56) ...... 9903.88.57 20(ddd)(28) ...... 9903.88.51 20(jjj)(57) ...... 9903.88.57 20(ww)(12) ...... 9903.88.44 20(jjj)(58) ...... 9903.88.57 20(zz)(7) ...... 9903.88.47 20(jjj)(59) ...... 9903.88.57 20(fff)(48) ...... 9903.88.53 20(jjj)(60) ...... 9903.88.57 20(bbb)(19) ...... 9903.88.49 20(jjj)(61) ...... 9903.88.57 20(uu)(19) ...... 9903.88.42 20(jjj)(62) ...... 9903.88.57 20(ddd)(33) ...... 9903.88.51 20(jjj)(63) ...... 9903.88.57 20(bbb)(23) ...... 9903.88.49 20(jjj)(64) ...... 9903.88.57 20(bbb)(24) ...... 9903.88.49 20(jjj)(65) ...... 9903.88.57 20(bbb)(26) ...... 9903.88.49 20(jjj)(66) ...... 9903.88.57 20(ddd)(35) ...... 9903.88.51 20(jjj)(67) ...... 9903.88.57 20(ddd)(36) ...... 9903.88.51 20(jjj)(68) ...... 9903.88.57 20(ddd)(37) ...... 9903.88.51 20(jjj)(69) ...... 9903.88.57 20(ddd)(38) ...... 9903.88.51 20(jjj)(70) ...... 9903.88.57 20(ddd)(39) ...... 9903.88.51 20(jjj)(71) ...... 9903.88.57 20(ddd)(40) ...... 9903.88.51 20(jjj)(72) ...... 9903.88.57 20(ddd)(41) ...... 9903.88.51 20(jjj)(73) ...... 9903.88.57 20(ddd)(42) ...... 9903.88.51 20(jjj)(74) ...... 9903.88.57 20(ddd)(44) ...... 9903.88.51 20(jjj)(75) ...... 9903.88.57 20(bbb)(29) ...... 9903.88.49 20(jjj)(76) ...... 9903.88.57 20(ddd)(46) ...... 9903.88.51 20(jjj)(77) ...... 9903.88.57 20(ddd)(47) ...... 9903.88.51 20(jjj)(78) ...... 9903.88.57 20(ddd)(48) ...... 9903.88.51 20(jjj)(79) ...... 9903.88.57 20(ddd)(49) ...... 9903.88.51 20(jjj)(80) ...... 9903.88.57 20(fff)(56) ...... 9903.88.53 20(jjj)(81) ...... 9903.88.57 20(ddd)(51) ...... 9903.88.51 20(jjj)(82) ...... 9903.88.57 20(fff)(59) ...... 9903.88.53 20(jjj)(83) ...... 9903.88.57 20(bbb)(33) ...... 9903.88.49 20(jjj)(84) ...... 9903.88.57 20(ddd)(53) ...... 9903.88.51 20(jjj)(85) ...... 9903.88.57 20(ddd)(57) ...... 9903.88.51 20(jjj)(86) ...... 9903.88.57 20(ddd)(59) ...... 9903.88.51 20(jjj)(87) ...... 9903.88.57
[FR Doc. 2020–19419 Filed 9–1–20; 8:45 am] exemption from the vision requirement the online instructions for submitting BILLING CODE 3290–F0–P in the Federal Motor Carrier Safety comments. Regulations (FMCSRs) to operate a • Mail: Docket Operations; U.S. commercial motor vehicle (CMV) in Department of Transportation, 1200 DEPARTMENT OF TRANSPORTATION interstate commerce. If granted, the New Jersey Avenue SE, West Building exemptions will enable these Ground Floor, Room W12–140, Federal Motor Carrier Safety Washington, DC 20590–0001. individuals to operate CMVs in • Administration interstate commerce without meeting Hand Delivery: West Building Ground Floor, Room W12–140, 1200 the vision requirement in one eye. [Docket No. FMCSA–2020–0011] New Jersey Avenue SE, Washington, DATES: Comments must be received on DC, between 9 a.m. and 5 p.m., ET, Qualification of Drivers; Exemption Monday through Friday, except Federal Applications; Vision or before October 2, 2020. Holidays. ADDRESSES: You may submit comments AGENCY: Federal Motor Carrier Safety • Fax: (202) 493–2251. identified by the Federal Docket Administration (FMCSA), To avoid duplication, please use only Management System (FDMS) Docket No. Transportation (DOT). one of these four methods. See the FMCSA–2020–0011 using any of the ‘‘Public Participation’’ portion of the ACTION: Notice of applications for following methods: exemption; request for comments. SUPPLEMENTARY INFORMATION section for • Federal eRulemaking Portal: Go to instructions on submitting comments. SUMMARY: FMCSA announces receipt of http://www.regulations.gov/ FOR FURTHER INFORMATION CONTACT: Ms. applications from five individuals for an docket?D=FMCSA-2020-0011. Follow Christine A. Hydock, Chief, Medical
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Programs Division, (202) 366–4001, except Federal holidays. To be sure for the 21st Century, Public Law 105– [email protected], FMCSA, someone is there to help you, please call 178, 112 Stat. 107, 401 (June 9, 1998). Department of Transportation, 1200 (202) 366–9317 or (202) 366–9826 Vision exemptions are considered under New Jersey Avenue SE, Room W64–224, before visiting Docket Operations. the procedures established in 49 CFR part 381 subpart C, on a case-by-case Washington, DC 20590–0001. Office C. Privacy Act hours are 8:30 a.m. to 5 p.m., ET, basis upon application by CMV drivers Monday through Friday, except Federal In accordance with 5 U.S.C. 553(c), who do not meet the vision standards of holidays. If you have questions DOT solicits comments from the public § 391.41(b)(10). regarding viewing or submitting to better inform its rulemaking process. To qualify for an exemption from the material to the docket, contact Docket DOT posts these comments, without vision requirement, FMCSA requires a Operations, (202) 366–9826. edit, including any personal information person to present verifiable evidence the commenter provides, to SUPPLEMENTARY INFORMATION: that he/she has driven a commercial www.regulations.gov, as described in vehicle safely in intrastate commerce I. Public Participation the system of records notice (DOT/ALL– with the vision deficiency for the past 14 FDMS), which can be reviewed at A. Submitting Comments 3 years. Recent driving performance is www.transportation.gov/privacy. especially important in evaluating If you submit a comment, please II. Background future safety, according to several include the docket number for this research studies designed to correlate notice (Docket No. FMCSA–2020–0011), Under 49 U.S.C. 31136(e) and past and future driving performance. indicate the specific section of this 31315(b), FMCSA may grant an Results of these studies support the document to which each comment exemption from the FMCSRs for no principle that the best predictor of applies, and provide a reason for each longer than a 5-year period if it finds future performance by a driver is his/her suggestion or recommendation. You such exemption would likely achieve a past record of crashes and traffic may submit your comments and level of safety that is equivalent to, or violations. Copies of the studies may be material online or by fax, mail, or hand greater than, the level that would be found at https://www.regulations.gov/ delivery, but please use only one of achieved absent such exemption. The docket?D=FMCSA-1998-3637. these means. FMCSA recommends that statute also allows the Agency to renew FMCSA believes it can properly apply you include your name and a mailing exemptions at the end of the 5-year the principle to monocular drivers, address, an email address, or a phone period. FMCSA grants medical because data from the Federal Highway number in the body of your document exemptions from the FMCSRs for a 2- Administration’s (FHWA) former waiver so that FMCSA can contact you if there year period to align with the maximum study program clearly demonstrated the are questions regarding your duration of a driver’s medical driving performance of experienced submission. certification. monocular drivers in the program is To submit your comment online, go to The five individuals listed in this better than that of all CMV drivers http://www.regulations.gov/docket? notice have requested an exemption collectively.1 The fact that experienced D=FMCSA-2020-0011. Click on the from the vision requirement in 49 CFR monocular drivers demonstrated safe ‘‘Comment Now!’’ button and type your 391.41(b)(10). Accordingly, the Agency driving records in the waiver program comment into the text box on the will evaluate the qualifications of each supports a conclusion that other following screen. Choose whether you applicant to determine whether granting monocular drivers, meeting the same are submitting your comment as an an exemption will achieve the required qualifying conditions as those required individual or on behalf of a third party level of safety mandated by statute. by the waiver program, are also likely to and then submit. The physical qualification standard have adapted to their vision deficiency If you submit your comments by mail for drivers regarding vision found in and will continue to operate safely. or hand delivery, submit them in an § 391.41(b)(10) states that a person is The first major research correlating unbound format, no larger than 81⁄2 by physically qualified to drive a CMV if past and future performance was done 11 inches, suitable for copying and that person has distant visual acuity of in England by Greenwood and Yule in electronic filing. If you submit at least 20/40 (Snellen) in each eye 1920. Subsequent studies, building on comments by mail and would like to without corrective lenses or visual that model, concluded that crash rates know that they reached the facility, acuity separately corrected to 20/40 for the same individual exposed to please enclose a stamped, self-addressed (Snellen) or better with corrective certain risks for two different time postcard or envelope. lenses, distant binocular acuity of at periods vary only slightly (See Bates FMCSA will consider all comments least 20/40 (Snellen) in both eyes with and Neyman, University of California and material received during the or without corrective lenses, field of Publications in Statistics, April 1952). comment period. vision of at least 70° in the horizontal Other studies demonstrated theories of Meridian in each eye, and the ability to predicting crash proneness from crash B. Viewing Documents and Comments recognize the colors of traffic signals history coupled with other factors. To view comments, as well as any and devices showing standard red, These factors—such as age, sex, documents mentioned in this notice as green, and amber. geographic location, mileage driven and being available in the docket, go to On July 16, 1992, the Agency first conviction history—are used every day http://www.regulations.gov/docket? published the criteria for the Vision by insurance companies and motor D=FMCSA-2020-0011 and choose the Waiver Program, which listed the vehicle bureaus to predict the document to review. If you do not have conditions and reporting standards that probability of an individual access to the internet, you may view the CMV drivers approved for participation experiencing future crashes (See Weber, docket online by visiting Docket would need to meet (57 FR 31458). The Donald C., ‘‘Accident Rate Potential: An Operations in Room W12–140 on the current Vision Exemption Program was ground floor of the DOT West Building, established in 1998, following the 1 A thorough discussion of this issue may be 1200 New Jersey Avenue SE, enactment of amendments to the found in a FHWA final rule published in the Federal Register on March 26, 1996 and available Washington, DC 20590, between 9 a.m. statutes governing exemptions made by on the internet at https://www.govinfo.gov/content/ and 5 p.m., ET, Monday through Friday, § 4007 of the Transportation Equity Act pkg/FR-1996-03-26/pdf/96-7226.pdf.
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Application of Multiple Regression crashes and no convictions for moving SUMMARY: FMCSA announces its Analysis of a Poisson Process,’’ Journal violations in a CMV. decision to exempt six individuals from of American Statistical Association, the vision requirement in the Federal Franz E. Fehr June 1971). A 1964 California Driver Motor Carrier Safety Regulations Record Study prepared by the California Mr. Fehr, 29, has had amblyopia in (FMCSRs) to operate a commercial Department of Motor Vehicles his right eye since 2006. The visual motor vehicle (CMV) in interstate concluded that the best overall crash acuity in his right eye is 20/400, and in commerce. They are unable to meet the predictor for both concurrent and his left eye, 20/20. Following an vision requirement in one eye for nonconcurrent events is the number of examination in 2019, his optometrist various reasons. The exemptions enable single convictions. This study used 3 stated, ‘‘Based on my findings Franz these individuals to operate CMVs in consecutive years of data, comparing the Fehr has sufficient vision to perform the interstate commerce without meeting experiences of drivers in the first 2 years driving tasks required to operate a the vision requirement in one eye. with their experiences in the final year. commercial vehicle.’’ Mr. Fehr reported DATES: The exemptions were applicable that he has driven tractor-trailer III. Qualifications of Applicants on August 14, 2020. The exemptions combinations for 4 years, accumulating expire on August 14, 2020. Tanner L. Batey 580,000 miles. He holds a Class A CDL FOR FURTHER INFORMATION CONTACT: Ms. from Texas. His driving record for the Christine A. Hydock, Chief, Medical Mr. Batey, 21, has had glaucoma in last 3 years shows no crashes and no his right eye since birth. The visual Programs Division, (202) 366–4001, convictions for moving violations in a [email protected], FMCSA, acuity in his right eye is counting CMV. fingers, and in his left eye, 20/20. Department of Transportation, 1200 Following an examination in 2019, his Jonathan D. Steen New Jersey Avenue SE, Room W64–224, ophthalmologist stated, ‘‘I certify that Mr. Steen, 39, has macular scarring in Washington, DC 20590–0001. Office this patient has sufficient vision to his right eye due to an infection in hours are from 8:30 a.m. to 5 p.m., ET, perform all required driving tasks childhood. The visual acuity in his right Monday through Friday, except Federal required to operate a commercial eye is 20/125, and in his left eye, 20/20. holidays. If you have questions vehicle.’’ Mr. Batey reported that he has Following an examination in 2020, his regarding viewing or submitting driven straight trucks for 6 years, optometrist stated, ‘‘In my medical material to the docket, contact Docket accumulating 60,000 miles and tractor- opinion, Mr. Jonathan Steen has Operations, (202) 366–9826. trailer combinations for 5 years, sufficient vision to perform the driving SUPPLEMENTARY INFORMATION: accumulating 185,000 miles. He holds a tasks required to operate a commercial I. Public Participation Class A CDL from Montana. His driving vehicle.’’ Mr. Steen reported that he has record for the last 3 years shows no driven tractor-trailer combinations for A. Viewing Documents and Comments crashes and no convictions for moving 20 years, accumulating 3 million miles. To view comments, as well as any violations in a CMV. He holds a Class A CDL from documents mentioned in this notice as Martin G. Burley, Jr. Minnesota. His driving record for the being available in the docket, go to last 3 years shows no crashes and no http://www.regulations.gov/docket? Mr. Burley, 57, has had chorioretinal convictions for moving violations in a D=FMCSA-2020-0009 and choose the scarring in his right eye due to myopia CMV. document to review. If you do not have for five years. The visual acuity in his access to the internet, you may view the IV. Request for Comments right eye is 20/70, and in his left eye, docket online by visiting Docket 20/25. Following an examination in In accordance with 49 U.S.C. 31136(e) Operations in Room W12–140 on the 2019, his optometrist stated, ‘‘He has and 31315(b), FMCSA requests public ground floor of the DOT West Building, sufficient vision to perform the driving comment from all interested persons on 1200 New Jersey Avenue SE, tasks required to operate a commercial the exemption petitions described in Washington, DC 20590, between 9 a.m. vehicle.’’ Mr. Burley reported that he this notice. We will consider all and 5 p.m., ET, Monday through Friday, has driven straight trucks for 11 years, comments and material received before except Federal holidays. To be sure accumulating 221,000 miles and tractor- the close of business on the closing date someone is there to help you, please call trailer combinations for 1 year, indicated under the DATES section of the (202) 366–9317 or (202) 366–9826 accumulating 210,000 miles. He holds a notice. before visiting Docket Operations. Class A CDL from Idaho. His driving record for the last 3 years shows no Larry W. Minor, B. Privacy Act crashes and no convictions for moving Associate Administrator for Policy. In accordance with 5 U.S.C. 553(c), violations in a CMV. [FR Doc. 2020–19359 Filed 9–1–20; 8:45 am] DOT solicits comments from the public BILLING CODE 4910–EX–P Fernando Casillas Lucio to better inform its rulemaking process. DOT posts these comments, without Mr. Casillas Lucio, 36, has had edit, including any personal information amblyopia in his left eye since DEPARTMENT OF TRANSPORTATION the commenter provides, to childhood. The visual acuity in his right www.regulations.gov, as described in eye is 20/20, and in his left eye, 20/150. Federal Motor Carrier Safety Administration the system of records notice (DOT/ALL– Following an examination in 2020, his 14 FDMS), which can be reviewed at optometrist stated, ‘‘In my professional [Docket No. FMCSA–2020–0009] www.transportation.gov/privacy. opinion, vision wise, patient is stable and able to operate a commercial Qualification of Drivers; Exemption II. Background vehicle.’’ Mr. Lucio reported that he has Applications; Vision On July 14, 2020, FMCSA published driven straight trucks for 3 years, AGENCY: Federal Motor Carrier Safety a notice announcing receipt of accumulating 56,016 miles. He holds a Administration (FMCSA), DOT. applications from six individuals Class B CDL from California. His driving requesting an exemption from vision ACTION: Notice of final disposition. record for the last 3 years shows no requirement in 49 CFR 391.41(b)(10)
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and requested comments from the loss of vision, corneal scar, macular V. Conditions and Requirements public (85 FR 42484). The public scar, and prosthesis. In most cases, their comment period ended on August 13, eye conditions did not develop recently. The terms and conditions of the exemption are provided to the 2020, and no comments were received. Three of the applicants were either born applicants in the exemption document FMCSA has evaluated the eligibility with their vision impairments or have and includes the following: (1) Each of these applicants and determined that had them since childhood. The three driver must be physically examined granting the exemptions to these individuals that developed their vision every year (a) by an ophthalmologist or individuals would achieve a level of conditions as adults have had them for optometrist who attests that the vision safety equivalent to, or greater than, the a range of 9 to 20 years. Although each in the better eye continues to meet the level that would be achieved by applicant has one eye that does not meet standard in § 391.41(b)(10) and (b) by a complying with § 391.41(b)(10). the vision requirement in certified medical examiner (ME) who The physical qualification standard § 391.41(b)(10), each has at least 20/40 attests that the individual is otherwise for drivers regarding vision found in corrected vision in the other eye, and, physically qualified under § 391.41; (2) § 391.41(b)(10) states that a person is in a doctor’s opinion, has sufficient physically qualified to drive a CMV if each driver must provide a copy of the vision to perform all the tasks necessary ophthalmologist’s or optometrist’s that person has distant visual acuity of to operate a CMV. at least 20/40 (Snellen) in each eye report to the ME at the time of the without corrective lenses or visual Doctors’ opinions are supported by annual medical examination; and (3) acuity separately corrected to 20/40 the applicants’ possession of a valid each driver must provide a copy of the (Snellen) or better with corrective license to operate a CMV. By meeting annual medical certification to the lenses, distant binocular acuity of a least State licensing requirements, the employer for retention in the driver’s 20/40 (Snellen) in both eyes with or applicants demonstrated their ability to qualification file, or keep a copy in his/ without corrective lenses, field of vision operate a CMV with their limited vision her driver’s qualification file if he/she is of at least 70° in the horizontal meridian in intrastate commerce, even though self-employed. The driver must also in each eye, and the ability to recognize their vision disqualified them from have a copy of the exemption when the colors of traffic signals and devices driving in interstate commerce. We driving, for presentation to a duly showing red, green, and amber. believe that the applicants’ intrastate authorized Federal, State, or local driving experience and history provide enforcement official. III. Discussion of Comments an adequate basis for predicting their VI. Preemption FMCSA received no comments in this ability to drive safely in interstate proceeding. commerce. Intrastate driving, like During the period the exemption is in interstate operations, involves IV. Basis for Exemption Determination effect, no State shall enforce any law or substantial driving on highways on the regulation that conflicts with this Under 49 U.S.C. 31136(e) and interstate system and on other roads exemption with respect to a person 31315(b), FMCSA may grant an built to interstate standards. Moreover, operating under the exemption. exemption from the FMCSRs for no driving in congested urban areas longer than a 5-year period if it finds exposes the driver to more pedestrian VII. Conclusion such exemption would likely achieve a and vehicular traffic than exists on Based upon its evaluation of the six level of safety that is equivalent to, or interstate highways. Faster reaction to exemption applications, FMCSA greater than, the level that would be traffic and traffic signals is generally exempts the following drivers from the achieved absent such exemption. The required because distances between vision requirement, § 391.41(b)(10), statute also allows the Agency to renew them are more compact. These subject to the requirements cited above: exemptions at the end of the 5-year conditions tax visual capacity and period. FMCSA grants medical driver response just as intensely as Heath G. Brown (NC) exemptions from the FMCSRs for a 2- interstate driving conditions. Frederick V. Hanks (AL) year period to align with the maximum The applicants in this notice have David T. Lembke (WI) duration of a driver’s medical driven CMVs with their limited vision David W. McVicar (IL) certification. Anthony M. Millard (NE) The Agency’s decision regarding these in careers ranging for 7 to 54 years. In exemption applications is based on the past 3 years, no drivers were Paul B. Overman (WA) involved in crashes, and no drivers were medical reports about the applicants’ In accordance with 49 U.S.C. 31136(e) convicted of moving violations in vision, as well as their driving records and 31315(b), each exemption will be CMVs. All the applicants achieved a and experience driving with the vision valid for 2 years from the effective date record of safety while driving with their deficiency. The qualifications, unless revoked earlier by FMCSA. The vision impairment that demonstrates the experience, and medical condition of exemption will be revoked if the likelihood that they have adapted their each applicant were stated and following occurs: (1) The person fails to driving skills to accommodate their discussed in detail in the July 14, 2020, comply with the terms and conditions condition. As the applicants’ ample Federal Register notice (85 FR 42484) of the exemption; (2) the exemption has driving histories with their vision and will not be repeated here. resulted in a lower level of safety than deficiencies are good predictors of FMCSA recognizes that some drivers was maintained prior to being granted; future performance, FMCSA concludes do not meet the vision requirement but or (3) continuation of the exemption their ability to drive safely can be have adapted their driving to would not be consistent with the goals projected into the future. accommodate their limitation and and objectives of 49 U.S.C. 31136(e) and demonstrated their ability to drive Consequently, FMCSA finds that in 31315(b). safely. The six exemption applicants each case exempting these applicants listed in this notice are in this category. from the vision requirement in Larry W. Minor, They are unable to meet the vision § 391.41(b)(10) is likely to achieve a Associate Administrator for Policy. requirement in one eye for various level of safety equal to that existing [FR Doc. 2020–19360 Filed 9–1–20; 8:45 am] reasons, including amblyopia, complete without the exemption. BILLING CODE 4910–EX–P
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DEPARTMENT OF TRANSPORTATION New Jersey Avenue SE, Room W64–224, internet, you may view the docket Washington, DC 20590–0001. Office online by visiting Docket Operations in Federal Motor Carrier Safety hours are from 8:30 a.m. to 5 p.m., ET, Room W12–140 on the ground floor of Administration Monday through Friday, except Federal the DOT West Building, 1200 New [Docket No. FMCSA–2014–0106; FMCSA– holidays. If you have questions Jersey Avenue SE, Washington, DC 2016–0002; FMCSA–2017–0061] regarding viewing or submitting 20590, between 9 a.m. and 5 p.m., ET, material to the docket, contact Docket Monday through Friday, except Federal Qualification of Drivers; Exemption Operations, (202) 366–9826. holidays. To be sure someone is there to Applications; Hearing SUPPLEMENTARY INFORMATION: help you, please call (202) 366–9317 or (202) 366–9826 before visiting Docket AGENCY: Federal Motor Carrier Safety I. Public Participation Operations. Administration (FMCSA), A. Submitting Comments Transportation (DOT). C. Privacy Act ACTION: Notice of renewal of If you submit a comment, please In accordance with 5 U.S.C. 553(c), exemptions; request for comments. include the docket number for this DOT solicits comments from the public notice (Docket No. FMCSA–2014–0106, to better inform its rulemaking process. SUMMARY: FMCSA announces its Docket No. FMCSA–2016–0002, or DOT posts these comments, without decision to renew exemptions for eight Docket No. FMCSA–2017–0061), edit, including any personal information individuals from the hearing indicate the specific section of this the commenter provides, to requirement in the Federal Motor document to which each comment www.regulations.gov, as described in Carrier Safety Regulations (FMCSRs) for applies, and provide a reason for each the system of records notice (DOT/ALL– interstate commercial motor vehicle suggestion or recommendation. You 14 FDMS), which can be reviewed at (CMV) drivers. The exemptions enable may submit your comments and www.transportation.gov/privacy. these hard of hearing and deaf material online or by fax, mail, or hand II. Background individuals to continue to operate CMVs delivery, but please use only one of in interstate commerce. these means. FMCSA recommends that Under 49 U.S.C. 31136(e) and DATES: The exemptions are applicable you include your name and a mailing 31315(b), FMCSA may grant an on September 6, 2020. The exemptions address, an email address, or a phone exemption from the FMCSRs for no expire on September 6, 2022. Comments number in the body of your document longer than a 5-year period if it finds must be received on or before October so that FMCSA can contact you if there such exemption would likely achieve a 2, 2020 are questions regarding your level of safety that is equivalent to, or submission. greater than, the level that would be ADDRESSES: You may submit comments To submit your comment online, go to achieved absent such exemption. The identified by the Federal Docket http://www.regulations.gov/docket? statute also allows the Agency to renew Management System (FDMS) Docket No. D=FMCSA-2014-0106, http:// exemptions at the end of the 5-year FMCSA–2014–0106, Docket No. www.regulations.gov/docket?D=FMCSA- period. FMCSA grants medical FMCSA–2016–0002, or Docket No. 2016-0002, or http:// exemptions from the FMCSRs for a 2- FMCSA–2017–0061 using any of the www.regulations.gov/docket?D=FMCSA- year period to align with the maximum following methods: • 2017-0061. Click on the ‘‘Comment duration of a driver’s medical Federal eRulemaking Portal: Go to Now!’’ button and type your comment certification. http://www.regulations.gov/docket? into the text box on the following The physical qualification standard D=FMCSA-2014-0106, http:// screen. Choose whether you are for drivers regarding hearing found in www.regulations.gov/docket?D=FMCSA- submitting your comment as an 49 CFR 391.41(b)(11) states that a 2016-0002, or http:// individual or on behalf of a third party person is physically qualified to drive a www.regulations.gov/docket?D=FMCSA- and then submit. CMV if that person first perceives a 2017-0061. Follow the online If you submit your comments by mail forced whispered voice in the better ear instructions for submitting comments. or hand delivery, submit them in an at not less than 5 feet with or without • Mail: Docket Operations; U.S. unbound format, no larger than 81⁄2 by the use of a hearing aid or, if tested by Department of Transportation, 1200 11 inches, suitable for copying and use of an audiometric device, does not New Jersey Avenue SE, West Building electronic filing. If you submit have an average hearing loss in the Ground Floor, Room W12–140, comments by mail and would like to better ear greater than 40 decibels at 500 Washington, DC 20590–0001. • know that they reached the facility, Hz, 1,000 Hz, and 2,000 Hz with or Hand Delivery: West Building please enclose a stamped, self-addressed without a hearing aid when the Ground Floor, Room W12–140, 1200 postcard or envelope. audiometric device is calibrated to New Jersey Avenue SE, Washington, FMCSA will consider all comments American National Standard (formerly DC, between 9 a.m. and 5 p.m., ET, and material received during the ASA Standard) Z24.5—1951. Monday through Friday, except Federal comment period. This standard was adopted in 1970 Holidays. and was revised in 1971 to allow drivers • Fax: (202) 493–2251. B. Viewing Documents and Comments to be qualified under this standard To avoid duplication, please use only To view comments, as well as any while wearing a hearing aid, 35 FR one of these four methods. See the documents mentioned in this notice as 6458, 6463 (April 22, 1970) and 36 FR ‘‘Public Participation’’ portion of the being available in the docket, go to 12857 (July 3, 1971). SUPPLEMENTARY INFORMATION section for http://www.regulations.gov/docket? The eight individuals listed in this instructions on submitting comments. D=FMCSA-2014-0106, http:// notice have requested renewal of their FOR FURTHER INFORMATION CONTACT: Ms. www.regulations.gov/docket?D=FMCSA- exemptions from the hearing standard Christine A. Hydock, Chief, Medical 2016-0002, or http:// in § 391.41(b)(11), in accordance with Programs Division, 202–366–4001, www.regulations.gov/docket?D=FMCSA- FMCSA procedures. Accordingly, [email protected], FMCSA, 2017-0061 and choose the document to FMCSA has evaluated these Department of Transportation, 1200 review. If you do not have access to the applications for renewal on their merits
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and decided to extend each exemption September 6, 2020, and will expire on DEPARTMENT OF TRANSPORTATION for a renewable 2-year period. September 6, 2022. Federal Motor Carrier Safety III. Request for Comments V. Conditions and Requirements Administration Interested parties or organizations The exemptions are extended subject [Docket No. FMCSA–2012–0123; FMCSA– possessing information that would to the following conditions: (1) Each 2015–0326; FMCSA–2015–0328; FMCSA– otherwise show that any, or all, of these driver must report any crashes or 2015–0329; FMCSA–2017–0057; FMCSA– drivers are not currently achieving the accidents as defined in § 390.5; and (2) 2017–0059; FMCSA–2017–0060; FMCSA– statutory level of safety should 2017–0061] immediately notify FMCSA. The report all citations and convictions for Agency will evaluate any adverse disqualifying offenses under 49 CFR 383 Qualification of Drivers; Exemption evidence submitted and, if safety is and 49 CFR 391 to FMCSA; and (3) each Applications; Hearing driver prohibited from operating a being compromised or if continuation of AGENCY: Federal Motor Carrier Safety the exemption would not be consistent motorcoach or bus with passengers in interstate commerce. The driver must Administration (FMCSA), with the goals and objectives of 49 Transportation (DOT). U.S.C. 31136(e) and 31315(b), FMCSA also have a copy of the exemption when ACTION: Notice of renewal of will take immediate steps to revoke the driving, for presentation to a duly exemptions; request for comments. exemption of a driver. authorized Federal, State, or local enforcement official. In addition, the IV. Basis for Renewing Exemptions SUMMARY: FMCSA announces its exemption does not exempt the decision to renew exemptions for 18 In accordance with 49 U.S.C. 31136(e) individual from meeting the applicable individuals from the hearing and 31315(b), each of the eight CDL testing requirements. Each requirement in the Federal Motor applicants has satisfied the renewal exemption will be valid for 2 years Carrier Safety Regulations (FMCSRs) for conditions for obtaining an exemption unless rescinded earlier by FMCSA. The interstate commercial motor vehicle from the hearing requirement. The eight exemption will be rescinded if: (1) The (CMV) drivers. The exemptions enable drivers in this notice remain in good person fails to comply with the terms these hard of hearing and deaf standing with the Agency. In addition, and conditions of the exemption; (2) the individuals to continue to operate CMVs for Commercial Driver’s License (CDL) exemption has resulted in a lower level in interstate commerce. holders, the Commercial Driver’s of safety than was maintained before it DATES: The exemptions were applicable License Information System and the was granted; or (3) continuation of the on August 22, 2020. The exemptions Motor Carrier Management Information exemption would not be consistent with expire on August 22, 2022. Comments System are searched for crash and the goals and objectives of 49 U.S.C. must be received on or before October violation data. For non-CDL holders, the 2, 2020. Agency reviews the driving records 31136(e) and 31315(b). ADDRESSES: You may submit comments from the State Driver’s Licensing VI. Preemption Agency. These factors provide an identified by the Federal Docket adequate basis for predicting each During the period the exemption is in Management System (FDMS) Docket No. driver’s ability to continue to safely effect, no State shall enforce any law or FMCSA–2012–0123, Docket No. operate a CMV in interstate commerce. regulation that conflicts with this FMCSA–2015–0326, Docket No. FMCSA–2015–0328, Docket No. Therefore, FMCSA concludes that exemption with respect to a person FMCSA–2015–0329, Docket No. extending the exemption for each of operating under the exemption. these drivers for a period of 2 years is FMCSA–2017–0057, Docket No. likely to achieve a level of safety equal VII. Conclusion FMCSA–2017–0059, Docket No. to that existing without the exemption. FMCSA–2017–0060, or Docket No. Based upon its evaluation of the eight FMCSA–2017–0061 using any of the In accordance with 49 U.S.C. 31136(e) exemption applications, FMCSA renews and 31315(b), the following groups of following methods: the exemptions of the aforementioned • Federal eRulemaking Portal: Go to drivers received renewed exemptions in drivers from the hearing requirement in http://www.regulations.gov. Follow the the month of September and are online instructions for submitting discussed below. As of September 6, § 391.41 (b)(11). In accordance with 49 U.S.C. 31136(e) and 31315(b), each comments. 2020, and in accordance with 49 U.S.C. • Mail: Docket Operations; U.S. 31136(e) and 31315(b), the following exemption will be valid for two years unless revoked earlier by FMCSA. Department of Transportation, 1200 eight individuals have satisfied the New Jersey Avenue SE, West Building renewal conditions for obtaining an Larry W. Minor, Ground Floor, Room W12–140, exemption from the hearing requirement Associate Administrator for Policy. Washington, DC 20590–0001. in the FMCSRs for interstate CMV • Hand Delivery: West Building drivers: [FR Doc. 2020–19358 Filed 9–1–20; 8:45 am] BILLING CODE 4910–EX–P Ground Floor, Room W12–140, 1200 Weston Arthurs (CA) New Jersey Avenue SE, Washington, Mathias Conway (MI) DC, between 9 a.m. and 5 p.m., ET, Charles DePriest (TX) Monday through Friday, except Federal Agustin Hernandez (TX) Holidays. Robert Hilber (TX) • Fax: (202) 493–2251. Richard Hoots (AR) To avoid duplication, please use only D’Nielle Smith (OH) one of these four methods. See the Michael Sweet (GA) ‘‘Public Participation’’ portion of the The drivers were included in docket SUPPLEMENTARY INFORMATION section for numbers FMCSA–2014–0106, FMCSA– instructions on submitting comments. 2016–0002, or FMCSA–2017–0061. FOR FURTHER INFORMATION CONTACT: Ms. Their exemptions are applicable as of Christine A. Hydock, Chief, Medical
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Programs Division, (202) 366–4001, http://www.regulations.gov. Insert the while wearing a hearing aid, 35 FR [email protected], FMCSA, docket number, FMCSA–2012–0123, 6458, 6463 (April 22, 1970) and 36 FR Department of Transportation, 1200 FMCSA–2015–0326, FMCSA–2015– 12857 (July 3, 1971). New Jersey Avenue SE, Room W64–224, 0328, FMCSA–2015–0329, FMCSA– The 18 individuals listed in this Washington, DC 20590–0001. Office 2017–0057, FMCSA–2017–0059, notice have requested renewal of their hours are from 8:30 a.m. to 5 p.m., ET, FMCSA–2017–0060, or FMCSA–2017– exemptions from the hearing standard Monday through Friday, except Federal 0061, in the keyword box, and click in § 391.41(b)(11), in accordance with holidays. If you have questions ‘‘Search.’’ Next, click the ‘‘Open Docket FMCSA procedures. Accordingly, regarding viewing or submitting Folder’’ button and choose the FMCSA has evaluated these material to the docket, contact Docket document to review. If you do not have applications for renewal on their merits Operations, (202) 366–9826. access to the internet, you may view the and decided to extend each exemption SUPPLEMENTARY INFORMATION: docket online by visiting Docket for a renewable 2-year period. Operations in Room W12–140 on the I. Public Participation ground floor of the DOT West Building, III. Request for Comments A. Submitting Comments 1200 New Jersey Avenue SE, Interested parties or organizations Washington, DC 20590, between 9 a.m. possessing information that would If you submit a comment, please and 5 p.m., ET, Monday through Friday, otherwise show that any, or all, of these include the docket number for this except Federal holidays. To be sure drivers are not currently achieving the notice (Docket No. FMCSA–2012–0123, someone is there to help you, please call statutory level of safety should FMCSA–2015–0326, FMCSA–2015– (202) 366–9317 or (202) 366–9826 immediately notify FMCSA. The 0328, FMCSA–2015–0329, FMCSA– before visiting Docket Operations. Agency will evaluate any adverse 2017–0057, FMCSA–2017–0059, evidence submitted and, if safety is C. Privacy Act FMCSA–2017–0060, and FMCSA–2017– being compromised or if continuation of 0061), indicate the specific section of In accordance with 5 U.S.C. 553(c), the exemption would not be consistent this document to which each comment DOT solicits comments from the public with the goals and objectives of 49 applies, and provide a reason for each to better inform its rulemaking process. U.S.C. 31136(e) and 31315(b), FMCSA suggestion or recommendation. You DOT posts these comments, without will take immediate steps to revoke the may submit your comments and edit, including any personal information exemption of a driver. material online or by fax, mail, or hand the commenter provides, to delivery, but please use only one of www.regulations.gov, as described in IV. Basis for Renewing Exemptions these means. FMCSA recommends that the system of records notice (DOT/ALL– In accordance with 49 U.S.C. 31136(e) you include your name and a mailing 14 FDMS), which can be reviewed at and 31315(b), each of the 18 applicants address, an email address, or a phone www.transportation.gov/privacy. has satisfied the renewal conditions for number in the body of your document obtaining an exemption from the II. Background so that FMCSA can contact you if there hearing requirement. The 18 drivers in are questions regarding your Under 49 U.S.C. 31136(e) and this notice remain in good standing with submission. 31315(b), FMCSA may grant an the Agency. In addition, for Commercial To submit your comment online, go to exemption from the FMCSRs for no Driver’s License (CDL) holders, the http://www.regulations.gov, put the longer than a 5-year period if it finds Commercial Driver’s License docket number, FMCSA–2012–0123, such exemption would likely achieve a Information System and the Motor FMCSA–2015–0326, FMCSA–2015– level of safety that is equivalent to, or Carrier Management Information System 0328, FMCSA–2015–0329, FMCSA– greater than, the level that would be are searched for crash and violation 2017–0057, FMCSA–2017–0059, achieved absent such exemption. The data. For non-CDL holders, the Agency FMCSA–2017–0060, or FMCSA–2017– statute also allows the Agency to renew reviews the driving records from the 0061, in the keyword box, and click exemptions at the end of the 5-year State Driver’s Licensing Agency. These ‘‘Search.’’ When the new screen period. FMCSA grants medical factors provide an adequate basis for appears, click on the ‘‘Comment Now!’’ exemptions from the FMCSRs for a 2- predicting each driver’s ability to button and type your comment into the year period to align with the maximum continue to safely operate a CMV in text box on the following screen. Choose duration of a driver’s medical interstate commerce. Therefore, FMCSA whether you are submitting your certification. concludes that extending the exemption comment as an individual or on behalf The physical qualification standard for each of these drivers for a period of of a third party and then submit. for drivers regarding hearing found in 2 years is likely to achieve a level of If you submit your comments by mail 49 CFR 391.41(b)(11) states that a safety equal to that existing without the or hand delivery, submit them in an person is physically qualified to drive a exemption. unbound format, no larger than 81⁄2 by CMV if that person first perceives a As of August 22, 2020, and in 11 inches, suitable for copying and forced whispered voice in the better ear accordance with 49 U.S.C. 31136(e) and electronic filing. If you submit at not less than 5 feet with or without 31315(b), the following 18 individuals comments by mail and would like to the use of a hearing aid or, if tested by have satisfied the renewal conditions for know that they reached the facility, use of an audiometric device, does not obtaining an exemption from the please enclose a stamped, self-addressed have an average hearing loss in the hearing requirement in the FMCSRs for postcard or envelope. better ear greater than 40 decibels at 500 interstate CMV drivers: FMCSA will consider all comments Hz, 1,000 Hz, and 2,000 Hz with or Mataio Brown (MS) and material received during the without a hearing aid when the Barry Carpenter (SD) comment period. audiometric device is calibrated to Lyle Eash (VA) American National Standard (formerly B. Viewing Documents and Comments Clay Fitzpatrick (ID) ASA Standard) Z24.5—1951. Berenice Martinez (TX) To view comments, as well as any This standard was adopted in 1970 Michael McCarthy (MN) documents mentioned in this notice as and was revised in 1971 to allow drivers Steven Moorehead (KY) being available in the docket, go to to be qualified under this standard Gary Nagel (MN)
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Christopher Poole (OH) exemption will be valid for two years FMCSA–2008–0106, Docket No. Ricardo Porras-Payan (TX) unless revoked earlier by FMCSA. FMCSA–2008–0231, Docket No. FMCSA–2008–0266, Docket No. Larry W. Minor, James Quinn (TN) FMCSA–2010–0082, Docket No. Willine Smith (GA) Associate Administrator for Policy. FMCSA–2010–0114, Docket No. [FR Doc. 2020–19357 Filed 9–1–20; 8:45 am] Brandon Soto (MO) FMCSA–2010–0161, Docket No. BILLING CODE 4910–EX–P FMCSA–2010–0187, Docket No. Dennis Stotts (OH) FMCSA–2011–0380, Docket No. Michael Tayman (ME) FMCSA–2012–0104, Docket No. DEPARTMENT OF TRANSPORTATION Carlos Torres (FL) FMCSA–2012–0159, Docket No. FMCSA–2012–0215, Docket No. Paul Wentworth (WA) Federal Motor Carrier Safety Administration FMCSA–2013–0167, Docket No. Joseph Woodle (KY) FMCSA–2013–0174, Docket No. The drivers were included in docket [Docket No. FMCSA–2000–7006; FMCSA– FMCSA–2014–0002, Docket No. 2002–11714; FMCSA–2002–12294; FMCSA– FMCSA–2014–0004, Docket No. number FMCSA–2012–0123, FMCSA– 2004–17984; FMCSA–2004–18885; FMCSA– 2015–0326, FMCSA–2015–0328, FMCSA–2014–0006, Docket No. 2005–21711; FMCSA–2005–22727; FMCSA– FMCSA–2014–0007, Docket No. FMCSA–2015–0329, FMCSA–2017– 2006–24783; FMCSA–2008–0021; FMCSA– 0057, FMCSA–2017–0059, FMCSA– 2008–0106; FMCSA–2008–0231; FMCSA– FMCSA–2014–0010, Docket No. 2017–0060, or FMCSA–2017–0061. 2008–0266; FMCSA–2010–0082; FMCSA– FMCSA–2014–0011, Docket No. Their exemptions were applicable as of 2010–0114; FMCSA–2010–0161; FMCSA– FMCSA–2014–0296, Docket No. August 22, 2020, and will expire on 2010–0187; FMCSA–2011–0380; FMCSA– FMCSA–2015–0070, Docket No. August 22, 2022. 2012–0104; FMCSA–2012–0159; FMCSA– FMCSA–2015–0345, Docket No. 2012–0215; FMCSA–2013–0167; FMCSA– FMCSA–2015–0347, Docket No. V. Conditions and Requirements 2013–0174; FMCSA–2014–0002; FMCSA– FMCSA–2015–0350, Docket No. 2014–0004; FMCSA–2014–0006; FMCSA– FMCSA–2016–0024, Docket No. The exemptions are extended subject 2014–0007; FMCSA–2014–0010; FMCSA– FMCSA–2016–0028, Docket No. 2014–0011; FMCSA–2014–0296; FMCSA– to the following conditions: (1) Each FMCSA–2016–0029, Docket No. driver must report any crashes or 2015–0070; FMCSA–2015–0345; FMCSA– 2015–0347; FMCSA–2015–0350; FMCSA– FMCSA–2016–0206, Docket No. accidents as defined in § 390.5; and (2) FMCSA–2018–0008, Docket No. report all citations and convictions for 2016–0024; FMCSA–2016–0028; FMCSA– 2016–0029; FMCSA–2016–0206; FMCSA– FMCSA–2018–0011, Docket No. disqualifying offenses under 49 CFR 383 2018–0008; FMCSA–2018–0011; FMCSA– FMCSA–2018–0012, or Docket No. and 49 CFR 391 to FMCSA; and (3) each 2018–0012; FMCSA–2018–0017] FMCSA–2018–0017 using any of the driver prohibited from operating a following methods: motorcoach or bus with passengers in Qualification of Drivers; Exemption • Federal eRulemaking Portal: Go to interstate commerce. The driver must Applications; Vision http://www.regulations.gov. Follow the also have a copy of the exemption when AGENCY: online instructions for submitting driving, for presentation to a duly Federal Motor Carrier Safety Administration (FMCSA), DOT. comments. authorized Federal, State, or local • Mail: Docket Operations; U.S. enforcement official. In addition, the ACTION: Notice of renewal of exemptions; request for comments. Department of Transportation, 1200 exemption does not exempt the New Jersey Avenue SE, West Building individual from meeting the applicable SUMMARY: FMCSA announces its Ground Floor, Room W12–140, CDL testing requirements. Each decision to renew exemptions for 55 Washington, DC 20590–0001. exemption will be valid for 2 years individuals from the vision requirement • Hand Delivery: West Building unless rescinded earlier by FMCSA. The in the Federal Motor Carrier Safety Ground Floor, Room W12–140, 1200 exemption will be rescinded if: (1) The Regulations (FMCSRs) for interstate New Jersey Avenue SE, Washington, person fails to comply with the terms commercial motor vehicle (CMV) DC, between 9 a.m. and 5 p.m., ET, and conditions of the exemption; (2) the drivers. The exemptions enable these Monday through Friday, except Federal exemption has resulted in a lower level individuals to continue to operate CMVs Holidays. of safety than was maintained before it in interstate commerce without meeting • Fax: (202) 493–2251. was granted; or (3) continuation of the the vision requirements in one eye. To avoid duplication, please use only exemption would not be consistent with DATES: Each group of renewed one of these four methods. See the the goals and objectives of 49 U.S.C. exemptions are applicable on the dates ‘‘Public Participation’’ portion of the 31136(e) and 31315(b). stated in the discussions below and will SUPPLEMENTARY INFORMATION section for VI. Preemption expire on the dates stated in the instructions on submitting comments discussions below. Comments must be FOR FURTHER INFORMATION CONTACT: Ms. During the period the exemption is in received on or before October 2, 2020. Christine A. Hydock, Chief, Medical effect, no State shall enforce any law or ADDRESSES: You may submit comments Programs Division, (202) 366–4001, regulation that conflicts with this identified by the Federal Docket [email protected], FMCSA, exemption with respect to a person Management System (FDMS) Docket No. Department of Transportation, 1200 operating under the exemption. FMCSA–2000–7006, Docket No. New Jersey Avenue SE, Room W64–224, Washington, DC 20590–0001. Office VII. Conclusion FMCSA–2002–11714, Docket No. FMCSA–2002–12294, Docket No. hours are from 8:30 a.m. to 5 p.m., ET, Based upon its evaluation of the 18 FMCSA–2004–17984, Docket No. Monday through Friday, except Federal exemption applications, FMCSA renews FMCSA–2004–18885, Docket No. holidays. If you have questions the exemptions of the aforementioned FMCSA–2005–21711, Docket No. regarding viewing or submitting drivers from the hearing requirement in FMCSA–2005–22727, Docket No. material to the docket, contact Docket § 391.41(b)(11). In accordance with 49 FMCSA–2006–24783, Docket No. Operations, (202) 366–9826. U.S.C. 31136(e) and 31315(b), each FMCSA–2008–0021, Docket No. SUPPLEMENTARY INFORMATION:
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I. Public Participation 0008; FMCSA–2018–0011; FMCSA– C. Privacy Act 2018–0012; FMCSA–2018–0017, in the A. Submitting Comments In accordance with 5 U.S.C. 553(c), keyword box, and click ‘‘Search.’’ When DOT solicits comments from the public If you submit a comment, please the new screen appears, click on the to better inform its rulemaking process. include the docket number for this ‘‘Comment Now!’’ button and type your DOT posts these comments, without notice (Docket No. FMCSA–2000–7006; comment into the text box on the edit, including any personal information FMCSA–2002–11714; FMCSA–2002– following screen. Choose whether you the commenter provides, to 12294; FMCSA–2004–17984; FMCSA– are submitting your comment as an www.regulations.gov, as described in 2004–18885; FMCSA–2005–21711; individual or on behalf of a third party the system of records notice (DOT/ALL– FMCSA–2005–22727; FMCSA–2006– and then submit. 14 FDMS), which can be reviewed at 24783; FMCSA–2008–0021; FMCSA– www.transportation.gov/privacy. 2008–0106; FMCSA–2008–0231; If you submit your comments by mail FMCSA–2008–0266; FMCSA–2010– or hand delivery, submit them in an II. Background unbound format, no larger than 81⁄2 by 0082; FMCSA–2010–0114; FMCSA– Under 49 U.S.C. 31136(e) and 2010–0161; FMCSA–2010–0187; 11 inches, suitable for copying and electronic filing. If you submit 31315(b), FMCSA may grant an FMCSA–2011–0380; FMCSA–2012– exemption from the FMCSRs for no comments by mail and would like to 0104; FMCSA–2012–0159; FMCSA– longer than a 5-year period if it finds know that they reached the facility, 2012–0215; FMCSA–2013–0167; such exemption would likely achieve a please enclose a stamped, self-addressed FMCSA–2013–0174; FMCSA–2014– level of safety that is equivalent to, or postcard or envelope. 0002; FMCSA–2014–0004; FMCSA– greater than, the level that would be 2014–0006; FMCSA–2014–0007; FMCSA will consider all comments achieved absent such exemption. The FMCSA–2014–0010; FMCSA–2014– and material received during the statute also allows the Agency to renew 0011; FMCSA–2014–0296; FMCSA– comment period. exemptions at the end of the 5-year 2015–0070; FMCSA–2015–0345; period. FMCSA grants medical B. Viewing Documents and Comments FMCSA–2015–0347; FMCSA–2015– exemptions from the FMCSRs for a 2- 0350; FMCSA–2016–0024; FMCSA– To view comments, as well as any year period to align with the maximum 2016–0028; FMCSA–2016–0029; duration of a driver’s medical FMCSA–2016–0206; FMCSA–2018– documents mentioned in this notice as being available in the docket, go to certification. 0008; FMCSA–2018–0011; FMCSA– The physical qualification standard 2018–0012; FMCSA–2018–0017), http://www.regulations.gov. Insert the docket number, FMCSA–2000–7006; for drivers regarding vision found in 49 indicate the specific section of this CFR 391.41(b)(10) states that a person is document to which each comment FMCSA–2002–11714; FMCSA–2002– 12294; FMCSA–2004–17984; FMCSA– physically qualified to drive a CMV if applies, and provide a reason for each that person has distant visual acuity of suggestion or recommendation. You 2004–18885; FMCSA–2005–21711; FMCSA–2005–22727; FMCSA–2006– at least 20/40 (Snellen) in each eye may submit your comments and without corrective lenses or visual 24783; FMCSA–2008–0021; FMCSA– material online or by fax, mail, or hand acuity separately corrected to 20/40 2008–0106; FMCSA–2008–0231; delivery, but please use only one of (Snellen) or better with corrective FMCSA–2008–0266; FMCSA–2010– these means. FMCSA recommends that lenses, distant binocular acuity of a least 0082; FMCSA–2010–0114; FMCSA– you include your name and a mailing 20/40 (Snellen) in both eyes with or 2010–0161; FMCSA–2010–0187; address, an email address, or a phone without corrective lenses, field of vision FMCSA–2011–0380; FMCSA–2012– number in the body of your document of at least 70° in the horizontal meridian 0104; FMCSA–2012–0159; FMCSA– so that FMCSA can contact you if there in each eye, and the ability to recognize 2012–0215; FMCSA–2013–0167; are questions regarding your the colors of traffic signals and devices FMCSA–2013–0174; FMCSA–2014– submission. showing red, green, and amber. To submit your comment online, go to 0002; FMCSA–2014–0004; FMCSA– The 55 individuals listed in this http://www.regulations.gov, put the 2014–0006; FMCSA–2014–0007; notice have requested renewal of their docket number, FMCSA–2000–7006; FMCSA–2014–0010; FMCSA–2014– exemptions from the vision standard in FMCSA–2002–11714; FMCSA–2002– 0011; FMCSA–2014–0296; FMCSA– § 391.41(b)(10), in accordance with 12294; FMCSA–2004–17984; FMCSA– 2015–0070; FMCSA–2015–0345; FMCSA procedures. Accordingly, 2004–18885; FMCSA–2005–21711; FMCSA–2015–0347; FMCSA–2015– FMCSA has evaluated these FMCSA–2005–22727; FMCSA–2006– 0350; FMCSA–2016–0024; FMCSA– applications for renewal on their merits 24783; FMCSA–2008–0021; FMCSA– 2016–0028; FMCSA–2016–0029; and decided to extend each exemption 2008–0106; FMCSA–2008–0231; FMCSA–2016–0206; FMCSA–2018– for a renewable 2-year period. FMCSA–2008–0266; FMCSA–2010– 0008; FMCSA–2018–0011; FMCSA– 0082; FMCSA–2010–0114; FMCSA– 2018–0012; FMCSA–2018–0017, in the III. Request for Comments 2010–0161; FMCSA–2010–0187; keyword box, and click ‘‘Search.’’ Next, Interested parties or organizations FMCSA–2011–0380; FMCSA–2012– click the ‘‘Open Docket Folder’’ button possessing information that would 0104; FMCSA–2012–0159; FMCSA– and choose the document to review. If otherwise show that any, or all, of these 2012–0215; FMCSA–2013–0167; you do not have access to the internet, drivers are not currently achieving the FMCSA–2013–0174; FMCSA–2014– you may view the docket online by statutory level of safety should 0002; FMCSA–2014–0004; FMCSA– visiting Docket Operations in Room immediately notify FMCSA. The 2014–0006; FMCSA–2014–0007; W12–140 on the ground floor of the Agency will evaluate any adverse FMCSA–2014–0010; FMCSA–2014– DOT West Building, 1200 New Jersey evidence submitted and, if safety is 0011; FMCSA–2014–0296; FMCSA– Avenue SE, Washington, DC 20590, being compromised or if continuation of 2015–0070; FMCSA–2015–0345; between 9 a.m. and 5 p.m., ET, Monday the exemption would not be consistent FMCSA–2015–0347; FMCSA–2015– through Friday, except Federal holidays. with the goals and objectives of 49 0350; FMCSA–2016–0024; FMCSA– To be sure someone is there to help you, U.S.C. 31136(e) and 31315(b), FMCSA 2016–0028; FMCSA–2016–0029; please call (202) 366–9317 or (202) 366– will take immediate steps to revoke the FMCSA–2016–0206; FMCSA–2018– 9826 before visiting Docket Operations. exemption of a driver.
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IV. Basis for Renewing Exemptions Therefore, FMCSA concludes that Michael P. Mazza (WA) In accordance with 49 U.S.C. 31136(e) extending the exemption for each Duane A. McCord (IL) and 31315(b), each of the 55 applicants renewal applicant for a period of 2 years Richard L. Miller (IN) has satisfied the renewal conditions for is likely to achieve a level of safety Philip L. Neff (PA) obtaining an exemption from the vision equal to that existing without the Michael Pace (TX) standard (see 65 FR 20245; 65 FR 57230; exemption. Aaron L. Paustian (IA) 67 FR 15662; 67 FR 37907; 67 FR 46016; In accordance with 49 U.S.C. 31136(e) Markus Perkins (LA) 67 FR 57266; 67 FR 57267; 69 FR 26206; and 31315(b), the following groups of Kent A. Perry (WY) 69 FR 33997; 69 FR 51346; 69 FR 52741; drivers received renewed exemptions in Mario A. Quezada (TX) 69 FR 53493; 69 FR 61292; 69 FR 62742; the month of October and are discussed Carroll G. Quisenberry (KY) 70 FR 48797; 70 FR 61493; 70 FR 71884; below. As of October 1, 2020, and in Ruel W. Reed (IA) Guadalupe Reyes (FL) 71 FR 4632; 71 FR 26602; 71 FR 32183; accordance with 49 U.S.C. 31136(e) and Ivan Romero (IL) 71 FR 41310; 71 FR 53489; 71 FR 55820; 31315, the following 37 individuals Jess C. Sanchez (TX) 71 FR 62148; 73 FR 5259; 73 FR 15567; have satisfied the renewal conditions for Robert Schick (PA) 73 FR 27015; 73 FR 27018; 73 FR 35195; obtaining an exemption from the vision Michael D. Singleton (IN) 73 FR 35199; 73 FR 36955; 73 FR 46973; requirement in the FMCSRs for Ricky W. Witt (IA) 73 FR 48275; 73 FR 51336; 73 FR 51689; interstate CMV drivers (65 FR 20245; 65 73 FR 54888; 73 FR 61925; 73 FR 63047; FR 57230; 67 FR 46016; 67 FR 57266; The drivers were included in docket 73 FR 65009; 75 FR 1451; 75 FR 19674; 67 FR 57267; 69 FR 51346; 69 FR 52741; numbers FMCSA–2000–7006; FMCSA– 75 FR 25918; 75 FR 34212; 75 FR 36778; 70 FR 71884; 71 FR 4632; 71 FR 53489; 2002–12294; FMCSA–2005–22727; 75 FR 36779; 75 FR 39725; 75 FR 39729; 73 FR 5259; 73 FR 15567; 73 FR 27015; FMCSA–2008–0021; FMCSA–2008– 75 FR 44051; 75 FR 47883; 75 FR 47888; 73 FR 35195; 73 FR 35199; 73 FR 48275; 0106; FMCSA–2010–0082; FMCSA– 75 FR 52062; 75 FR 52063; 75 FR 57105; 73 FR 51336; 75 FR 1451; 75 FR 19674; 2010–0114; FMCSA–2012–0104; 75 FR 59327; 75 FR 61833; 75 FR 61883; 75 FR 25918; 75 FR 34212; 75 FR 39729; FMCSA–2012–0159; FMCSA–2013– 75 FR 63257; 75 FR 64396; 77 FR 545; 75 FR 44051; 75 FR 47888; 75 FR 52062; 0167; FMCSA–2013–0174; FMCSA– 77 FR 17109; 77 FR 23797; 77 FR 27845; 77 FR 545; 77 FR 23797; 77 FR 27847; 2014–0002; FMCSA–2014–0004; 77 FR 27847; 77 FR 36336; 77 FR 36338; 77 FR 36336; 77 FR 36338; 77 FR 38386; FMCSA–2014–0006; FMCSA–2014– 77 FR 38384; 77 FR 38386; 77 FR 40945; 77 FR 40945; 77 FR 46153; 77 FR 46795; 0007; FMCSA–2014–0010; FMCSA– 77 FR 46153; 77 FR 46795; 77 FR 52381; 77 FR 52389; 78 FR 64271; 78 FR 78475; 2015–0070; FMCSA–2015–0345; 77 FR 52388; 77 FR 52389; 77 FR 56262; 79 FR 1908; 79 FR 2748; 79 FR 10606; FMCSA–2015–0347; FMCSA–2015– 77 FR 60010; 77 FR 64582; 77 FR 64583; 79 FR 14333; 79 FR 18392; 79 FR 22003; 0350; FMCSA–2016–0024; FMCSA– 77 FR 64841; 78 FR 64271; 78 FR 78475; 79 FR 23797; 79 FR 29498; 79 FR 35212; 2016–0028; FMCSA–2016–0029; 79 FR 1908; 79 FR 2748; 79 FR 10606; 79 FR 35220; 79 FR 38659; 79 FR 38661; FMCSA–2016–0206; FMCSA–2018– 79 FR 14333; 79 FR 18392; 79 FR 22003; 79 FR 45868; 79 FR 46153; 79 FR 46300; 0008; FMCSA–2018–0011; FMCSA– 79 FR 23797; 79 FR 29498; 79 FR 35212; 79 FR 47175; 79 FR 51643; 79 FR 53514; 2018–0012. Their exemptions are 79 FR 35218; 79 FR 35220; 79 FR 38659; 79 FR 64001; 80 FR 67476; 80 FR 79414; applicable as of October 1, 2020, and 79 FR 38661; 79 FR 45868; 79 FR 46153; 80 FR 80443; 81 FR 1474; 81 FR 14190; will expire on October 1, 2022. 79 FR 46300; 79 FR 47175; 79 FR 51642; 81 FR 15404; 81 FR 2043381 FR 21655; As of October 6, 2020, and in 79 FR 51643; 79 FR 53514; 79 FR 56097; 81 FR 28138; 81 FR 39100; 81 FR 39320; accordance with 49 U.S.C. 31136(e) and 79 FR 56099; 79 FR 56104; 79 FR 56117; 81 FR 42054; 81 FR 44680; 81 FR 48493; 31315, the following six individuals 79 FR 58856; 79 FR 64001; 79 FR 70928; 81 FR 60115; 81 FR 66718; 81 FR 66720; have satisfied the renewal conditions for 79 FR 72754; 80 FR 67476; 80 FR 79414; 81 FR 66722; 81 FR 72642; 81 FR 81230; obtaining an exemption from the vision 80 FR 80443; 81 FR 1474; 81 FR 14190; 81 FR 90050; 81 FR 91239; 81 FR 96196; requirement in the FMCSRs for 81 FR 15404; 81 FR 20433; 81 FR 21655; 83 FR 6922; 83 FR 15195; 83 FR 15216; interstate CMV drivers (67 FR 15662; 67 81 FR 28138; 81 FR 39100; 81 FR 39320; 83 FR 24146; 83 FR 24585; 83 FR 28320; FR 37907; 69 FR 26206; 70 FR 48797; 81 FR 42054; 81 FR 44680; 81 FR 48493; 83 FR 28323; 83 FR 28325; 83 FR 28332; 70 FR 61493; 71 FR 26602; 71 FR 32183; 81 FR 60115; 81 FR 66718; 81 FR 66720; 83 FR 34661; 83 FR 34677; 83 FR 45749; 71 FR 41310; 73 FR 27018; 73 FR 36955; 81 FR 66722; 81 FR 71173; 81 FR 72642; 83 FR 56902): 75 FR 36778; 75 FR 36779; 75 FR 39725; 81 FR 81230; 81 FR 90050; 81 FR 91239; Dominic A. Berube (MA) 75 FR 61833; 77 FR 17109; 77 FR 27845; 81 FR 96196; 83 FR 6922; 83 FR 15195; Mark F. Besco (IA) 77 FR 38384; 77 FR 56262; 79 FR 23797; 83 FR 15216; 83 FR 24146; 83 FR 24585; Lester E. Burnes (NM) 79 FR 35218; 79 FR 51642; 81 FR 71173; 83 FR 28320; 83 FR 28323; 83 FR 28325; Antonio A. Calixto (MN) 83 FR 56902): 83 FR 28332; 83 FR 34661; 83 FR 34677; Walter O. Connelly (WA) John E. Breslin (NV) 83 FR 45749; 83 FR 45750; 83 FR 56137; Tommy J. Cross, Jr. (TN) Ronald M. Green (OH) 83 FR 56902). They have submitted Donald R. Date, Jr. (MD) David W. Grooms (IN) evidence showing that the vision in the Jacob Dehoyos (NM) Ralph E. Holmes (MD) better eye continues to meet the David Diamond (IL) Daniel W. Johnson (NY) requirement specified at § 391.41(b)(10) Timothy C. Dotson (MO) Charles E. Stokes (FL) and that the vision impairment is stable. Michael Giagnacova (PA) The drivers were included in docket In addition, a review of each record of Joshua D. Giles (NC) number FMCSA–2002–11714; FMCSA– safety while driving with the respective Esteban G. Gonzalez (TX) 2005–21711; FMCSA–2006–24783; vision deficiencies over the past 2 years Jimmy G. Hall (NC) FMCSA–2010–0161; FMCSA–2011– indicates each applicant continues to Ricky P. Hastings (TX) 0380. Their exemptions are applicable meet the vision exemption Kevin L. Jones (SC) as of October 6, 2020, and will expire requirements. These factors provide an Keith A. Kelley (ME) on October 6, 2022. adequate basis for predicting each William J. Krysinski (MN) As of October 11, 2020, and in driver’s ability to continue to drive Melvin L. Lester (MS) accordance with 49 U.S.C. 31136(e) and safely in interstate commerce. William L. Martin (OR) 31315, the following individual has
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satisfied the renewal conditions for satisfied the renewal conditions for authorized Federal, State, or local obtaining an exemption from the vision obtaining an exemption from the vision enforcement official. The exemption requirement in the FMCSRs for requirement in the FMCSRs for will be rescinded if: (1) The person fails interstate CMV drivers (83 FR 45750; 83 interstate CMV drivers (77 FR 52381; 77 to comply with the terms and FR 56137): FR 64841; 79 FR 56097; 81 FR 71173; conditions of the exemption; (2) the Thomas J. Knapp (WA) 83 FR 56902): exemption has resulted in a lower level The driver was included in docket James T. Stalker (OH) of safety than was maintained before it number FMCSA–2018–0017. The The driver was included in docket was granted; or (3) continuation of the exemption is applicable as of October number FMCSA–2012–0215. The exemption would not be consistent with 11, 2020, and will expire on October 11, exemption is applicable as of October the goals and objectives of 49 U.S.C. 2022. 23, 2020, and will expire on October 23, 31136(e) and 31315(b). As of October 15, 2020, and in 2022. VI. Preemption accordance with 49 U.S.C. 31136(e) and As of October 27, 2020, and in 31315, the following two individuals accordance with 49 U.S.C. 31136(e) and During the period the exemption is in have satisfied the renewal conditions for 31315, the following two individuals effect, no State shall enforce any law or obtaining an exemption from the vision have satisfied the renewal conditions for regulation that conflicts with this requirement in the FMCSRs for obtaining an exemption from the vision exemption with respect to a person interstate CMV drivers (69 FR 33997; 69 requirement in the FMCSRs for operating under the exemption. FR 61292; 71 FR 55820; 73 FR 46973; interstate CMV drivers (69 FR 53493; 69 VI. Conclusion 73 FR 54888; 73 FR 65009; 75 FR 52063; FR 62742; 71 FR 62148; 73 FR 61925; Based upon its evaluation of the 55 75 FR 57105; 77 FR 52388; 77 FR 60010; 75 FR 59327; 77 FR 64583; 79 FR 56117; exemption applications, FMCSA renews 81 FR 71173; 83 FR 56902): 81 FR 71173; 83 FR 56902): the exemptions of the aforementioned William C. Ball (NC) and Kevin C. David W. Brown (TN) and Zbigniew P. Pietranik (WI) drivers from the vision requirement in Palmer (OR) § 391.41(b)(10), subject to the The drivers were included in docket The drivers were included in docket number FMCSA–2004–18885. Their requirements cited above. In accordance numbers FMCSA–2004–17984; with 49 U.S.C. 31136(e) and 31315(b), FMCSA–2008–0231. Their exemptions exemptions are applicable as of October 27, 2020, and will expire on October 27, each exemption will be valid for 2 years are applicable as of October 15, 2020, unless revoked earlier by FMCSA. and will expire on October 15, 2022. 2022. As of October 31, 2020, and in As of October 21, 2020, and in Larry W. Minor, accordance with 49 U.S.C. 31136(e) and accordance with 49 U.S.C. 31136(e) and Associate Administrator for Policy. 31315, the following individual has 31315, the following individual has [FR Doc. 2020–19356 Filed 9–1–20; 8:45 am] satisfied the renewal conditions for satisfied the renewal conditions for BILLING CODE 4910–EX–P obtaining an exemption from the vision obtaining an exemption from the vision requirement in the FMCSRs for requirement in the FMCSRs for interstate CMV drivers (79 FR 58856; 79 interstate CMV drivers (79 FR 56099; 79 DEPARTMENT OF TRANSPORTATION FR 72754; 81 FR 71173; 83 FR 56902): FR 70928; 81 FR 71173; 83 FR 56902): Henry L. Chrestensen (IA) Federal Railroad Administration Raymond Holt (CA) The driver was included in docket [Docket Number FRA–2011–0085] The driver was included in docket number FMCSA–2014–0296. The number FMCSA–2014–0011. The exemption is applicable as of October Petition for Waiver of Compliance exemption is applicable as of October 31, 2020, and will expire on October 31, 21, 2020, and will expire on October 21, 2022. Under part 211 of title 49 Code of 2022. Federal Regulations (CFR), this As of October 22, 2020, and in V. Conditions and Requirements document provides the public notice accordance with 49 U.S.C. 31136(e) and The exemptions are extended subject that on August 24, 2020, BNSF Railway 31315, the following four individuals to the following conditions: (1) Each Company (BNSF) petitioned the Federal have satisfied the renewal conditions for driver must undergo an annual physical Railroad Administration (FRA) to obtaining an exemption from the vision examination (a) by an ophthalmologist amend a waiver of compliance from requirement in the FMCSRs for or optometrist who attests that the certain provisions of the Federal interstate CMV drivers (73 FR 51689; 73 vision in the better eye continues to railroad safety regulations contained at FR 63047; 75 FR 39725; 75 FR 47883; meet the requirements in 49 CFR 49 CFR part 213, Track Safety 75 FR 61883; 75 FR 63257; 75 FR 64396; 391.41(b)(10), and (b) by a certified Standards. FRA assigned the petition 77 FR 64582; 79 FR 56104; 81 FR 71173; medical examiner (ME), as defined by Docket Number FRA–2011–0085. 83 FR 56902): § 390.5, who attests that the driver is Specifically, BNSF requests to modify Randall J. Benson (MN) otherwise physically qualified under its existing waiver from 49 CFR James D. Drabek, Jr. (IL) § 391.41; (2) each driver must provide a 213.109(d)(6) which allows for the use Delone W. Dudley (MD) copy of the ophthalmologist’s or of concrete crossties with one shoulder Jeromy W. Leatherman (PA) optometrist’s report to the ME at the broken off where, if turned end for end, The drivers were included in docket time of the annual medical examination; every other crosstie is fastened 100 number FMCSA–2008–0266; FMCSA– and (3) each driver must provide a copy percent on both rails (‘‘3/4 Concrete 2010–0161; FMCSA–2010–0187. Their of the annual medical certification to Ties’’). BNSF seeks to: (1) Amend the exemptions are applicable as of October the employer for retention in the waiver locations to reflect BNSF’s 22, 2020, and will expire on October 22, driver’s qualification file or keep a copy historical practice under the waiver; and 2022. of his/her driver’s qualification if he/her (2) clarify that multiple Gage Restraint As of October 23, 2020, and in is self-employed. The driver must also Measurement System (GRMS) test accordance with 49 U.S.C. 31136(e) and have a copy of the exemption when platforms may be employed to test gage 31315, the following individual has driving, for presentation to a duly widening. BNSF’s proposal would
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effectively ‘‘grandfather’’ BNSF’s notice (DOT/ALL–14 FDMS), which can existing PTC systems. Petitioners also continued use of these types of crossties be reviewed at https:// contend that approval would result in across six divisions throughout the www.transportation.gov/privacy. See significant resource and cost savings to BNSF operating system. also https://www.regulations.gov/ both FRA and the railroads. BNSF claims: (1) The performance of privacyNotice for the privacy notice of A copy of the petition, as well as any 3/4 Concrete Ties have not resulted in regulations.gov. written communications concerning the any derailments due to gage or defective Issued in Washington, DC. petition, is available for review online at crossties defects since the issuance of John Karl Alexy, the waiver in 2011; (2) FRA has taken http://www.regulations.gov. no exception to wide gage throughout Associate Administrator for Railroad Safety, Interested parties are invited to Chief Safety Officer. BNSF’s use of 3/4 Concrete Ties in the participate in these proceedings by past; and (3) foot-by-foot analysis by [FR Doc. 2020–19398 Filed 9–1–20; 8:45 am] submitting written views, data, or automated inspection show the 3/4 BILLING CODE 4910–06–P comments. FRA does not anticipate Concrete Ties remained stable and are scheduling a public hearing in not degrading. DEPARTMENT OF TRANSPORTATION connection with these proceedings since A copy of the petition, as well as any the facts do not appear to warrant a written communications concerning the Federal Railroad Administration hearing. If any interested parties desire petition, is available for review online at an opportunity for oral comment and a www.regulations.gov. [Docket Number FRA–2020–0068] public hearing, they should notify FRA, Interested parties are invited to in writing, before the end of the Petition for Waiver of Compliance participate in these proceedings by comment period and specify the basis submitting written views, data, or Under part 211 of title 49 of the Code for their request. comments. FRA does not anticipate of Federal Regulations (CFR), this All communications concerning these scheduling a public hearing in document provides the public notice connection with these proceedings since proceedings should identify the that on August 14, 2020, the Association appropriate docket number and may be the facts do not appear to warrant a of American Railroads (AAR) and the hearing. If any interested parties desire submitted by any of the following American Short Line and Regional methods: an opportunity for oral comment and a Railroad Association (ASLRRA) • public hearing, they should notify FRA, (Petitioners), on behalf of themselves Website: http:// in writing, before the end of the and their member railroads, petitioned www.regulations.gov. Follow the online comment period and specify the basis the Federal Railroad Administration instructions for submitting comments. for their request. (FRA) for a waiver of compliance from • All communications concerning these Fax: 202–493–2251. certain provisions of the Federal proceedings should identify the • Mail: Docket Operations Facility, railroad safety regulations contained at appropriate docket number and may be U.S. Department of Transportation 49 CFR part 236, Rules, Standards, and submitted by any of the following (DOT), 1200 New Jersey Ave. SE, W12– Instructions Governing the Installation, methods: 140, Washington, DC 20590. • Website: http:// Inspection, Maintenance, and Repair of Signal and Train Control Systems, • Hand Delivery: 1200 New Jersey www.regulations.gov. Follow the online Ave. SE, Room W12–140, Washington, instructions for submitting comments. Devices, and Appliances. FRA assigned DC 20590, between 9 a.m. and 5 p.m., • Fax: 202–493–2251. the petition Docket Number FRA–2020– • Mail: Docket Operations Facility, 0068. Monday through Friday, except Federal U.S. Department of Transportation Specifically, Petitioners request relief Holidays. (DOT), 1200 New Jersey Ave. SE, W12– from 49 CFR 236.1021, which governs Communications received by October 140, Washington, DC 20590. the Request for Amendment (RFA) 19, 2020 will be considered by FRA • Hand Delivery: 1200 New Jersey process when material modifications are before final action is taken. Comments Ave. SE, Room W12–140, Washington, made to a mixed-certification received after that date will be DC 20590, between 9 a.m. and 5 p.m., Interoperable Train Control Positive considered if practicable. Monday through Friday, except Federal Train Control (PTC) system or its Anyone can search the electronic Holidays. accompanying Safety Plan (PTCSP). Communications received by October Petitioners state that the RFA process form of any written communications 2, 2020 will be considered by FRA when modifications are made to a and comments received into any of our before final action is taken. Comments PTCSP is a time consuming and dockets by the name of the individual received after that date will be significant undertaking for both FRA submitting the comment (or signing the considered if practicable. and railroad staff, involving submission document, if submitted on behalf of an Anyone can search the electronic of a voluminous amount of information association, business, labor union, etc.). form of any written communications and likely a lengthy review and Under 5 U.S.C. 553(c), DOT solicits and comments received into any of our approval process. Petitioners further comments from the public to better dockets by the name of the individual state that frequently occurring inform its processes. DOT posts these submitting the comment (or signing the modifications to account for regular PTC comments, without edit, including any document, if submitted on behalf of an technology updates of the FRA-certified personal information the commenter association, business, labor union, etc.). PTC system are necessary to allow for provides, to www.regulations.gov, as Under 5 U.S.C. 553(c), DOT solicits the continued successful and safe described in the system of records comments from the public to better operation of the PTC system. notice (DOT/ALL–14 FDMS), which can inform its processes. DOT posts these Petitioners assert that approval of this be reviewed at https:// comments, without edit, including any waiver request would eliminate undue www.transportation.gov/privacy. See personal information the commenter paperwork, administrative burdens, and also http://www.regulations.gov/ provides, to www.regulations.gov, as delays to modifications that are #!privacyNotice for the privacy notice of described in the system of records intended to improve the functioning of regulations.gov.
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Issued in Washington, DC. Regional Transit Authority suggesting grade crossings, and rail line relocation, John Karl Alexy, that the current grant application be as well as projects that encourage Associate Administrator for Railroad Safety, improved to eliminate redundancies. It development, expansion, and upgrades Chief Safety Officer. recommended that FRA capture from to passenger and freight rail [FR Doc. 2020–19397 Filed 9–1–20; 8:45 am] applicants additional information in the infrastructure and services. FRA funds BILLING CODE 4910–06–P project narrative so that the Statement of projects that meet FRA and government- Work (SOW) can be eliminated. After wide evaluation standards and align careful consideration, FRA determined with the DOT Strategic Plan. DEPARTMENT OF TRANSPORTATION that this recommendation could not be FRA administers award agreements implemented as the documents serve for both construction and non- Federal Railroad Administration distinct functions. The primary purpose construction projects that will result in [Docket No. FRA–2020–0027–N–18] of the project narrative is to address benefits or other tangible improvements statutory grant evaluation and selection in rail corridors, service, safety, and Proposed Agency Information criteria and the primary purpose of the technology. These projects include Collection Activities; Comment SOW is to determine project readiness completion of preliminary engineering Request for obligations. Therefore, FRA plans on environmental, research and continuing both the project narrative development, final design, and AGENCY: Federal Railroad and SOW. construction. Administration (FRA), Department of Before OMB decides whether to FRA requires systematic and uniform Transportation (DOT). approve these proposed collections of collection and submission of ACTION: Notice of information collection; information, it must provide 30 days for information, as approved by OMB, to request for comment. public comment. Federal law requires ensure accountability of Federal OMB to approve or disapprove assistance provided by FRA. Through SUMMARY: Under the Paperwork paperwork packages between 30 and 60 this information collection, FRA will Reduction Act of 1995 (PRA), this notice days after the 30-day notice is measure Federal award recipients’ announces that FRA is forwarding the published. 44 U.S.C. 3507(b)–(c); 5 CFR performance and results, including Information Collection Request (ICR) 1320.10(b); see also 60 FR 44978, 44983, expenditures in support of agreed-upon abstracted below to the Office of Aug. 29, 1995. OMB believes the 30-day activities and allowable costs outlined Management and Budget (OMB) for notice informs the regulated community in FRA Notice of Grant Award. This review and comment. The ICR describes to file relevant comments and affords information collection includes OMB- the information collection and its the agency adequate time to digest required reports and documentation, as expected burden. On May 29, 2020, FRA public comments before it renders a well a additional forms and submission published a notice providing a 60-day decision. 60 FR 44983, Aug. 29, 1995. to compile evidence relevant to period for public comment on the ICR. Therefore, respondents should submit addressing FRA’s important policy DATES: Interested persons are invited to their respective comments to OMB challenges, promoting cost-effectiveness submit comments on or before October within 30 days of publication to best in FRA programs, and providing 2, 2020. ensure having their full effect. effective oversight of programmatic and ADDRESSES: Written comments and Comments are invited on the financial performance. FRA issues and recommendations for the proposed ICR following ICR regarding: (1) Whether the manages awards in compliance with 2 should be sent within 30 days of information collection activities are CFR part 200; Uniform Administrative publication of this notice to necessary for FRA to properly execute Requirements, Cost Principles, and www.reginfo.gov/public/do/PRAMain. its functions, including whether the Audit Requirements for Federal Awards. Form(s): All FRA forms are located at Find this particular ICR by selecting information will have practical utility; FRA’s public website; all SF forms are ‘‘Currently under 30-day Review—Open (2) the accuracy of FRA’s estimates of located at Grants.gov. FRA forms 30 for Public Comments’’ or by using the the burden of the information collection (FRA Assurance and Certifications search function. activities, including the validity of the methodology and assumptions used to Regarding Lobbying; Debarment, FOR FURTHER INFORMATION CONTACT: Ms. determine the estimates; (3) ways for Suspension and Other Responsibility Kim Toone, Information Collection FRA to enhance the quality, utility, and Matters and Drug-Free Workplace Clearance Officer, Office of clarity of the information being Requirements), 31 (Grant Adjustment Administration, Office of Information collected; and (4) ways to minimize the Require Form), 32 (Service Outcome Technology, Federal Railroad burden of information collection Agreement Annual Reporting), 33 (Final Administration, 1200 New Jersey activities on the public, including the Performance Report), 34 (Quarterly Avenue SE, Washington, DC 20590 use of automated collection techniques Progress Report), 35 (Application Form), (telephone: (202) 493–6132). or other forms of information 217 (Categorical Exclusion Worksheet), SUPPLEMENTARY INFORMATION: The PRA, technology. 229 (NIST Manufacturing Extension 44 U.S.C. 3501–3520, and its The summaries below describe the Partnership Supplier Scouting—FRA implementing regulations, 5 CFR part ICR that FRA will submit for OMB Item Opportunity Synopsis), 251 1320, require Federal agencies to issue clearance as the PRA requires: (Applicant Financial Capability two notices seeking public comment on Title: Grants Management Questionnaire), and 252 (Payment information collection activities before Requirements for Federal Railroad Summary Spreadsheet). SF forms 270 OMB may approve paperwork packages. Administration. Grant Awards and (Request for Advance or See 44 U.S.C. 3506, 3507; 5 CFR 1320.8 Cooperative Agreements. Reimbursement), 424 (Application for through 1320.12. On May 29, 2020, FRA OMB Control Number: 2130–0615. Federal Assistance), 424 A (Budget published a 60-day notice in the Federal Abstract: FRA solicits grant Information for Non-Construction Register soliciting comment on the ICR applications for projects including, but Programs), 424B (Assurance for Non- for which it is now seeking OMB not limited to, preconstruction planning Construction Programs), 424C (Budget approval. See 85 FR 32440. FRA activities, safety improvements, Information for Construction Programs), received one comment from Rio Metro congestion relief, improvements of 424D (Assurances for Construction
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Programs), 425 (Federal Financial Service, Room 6526, 1111 Constitution (b) the accuracy of the agency’s estimate Report), and LLL (Disclosure of Avenue NW, Washington, DC 20224. of the burden of the collection of Lobbying Activities). FOR FURTHER INFORMATION CONTACT: information; (c) ways to enhance the Type of Request: Revision of a Requests for additional information or quality, utility, and clarity of the currently approved collection. copies of the form and instructions information to be collected; (d) ways to Affected Public: Generally includes should be directed to Sara Covington, at minimize the burden of the collection of States, d local governments and (737)800–6149 or Internal Revenue information on respondents, including railroads. Service, Room 6526, 1111 Constitution through the use of automated collection Frequency of Submission: Varied. Avenue NW, Washington DC 20224, or techniques or other forms of information Total Estimated Annual Responses: through the internet at technology; and (e) estimates of capital 6,551 responses. [email protected]. or start-up costs and costs of operation, Total Estimated Annual Burden: maintenance, and purchase of services SUPPLEMENTARY INFORMATION: 88,293.50 hours. to provide information. Total Estimated Annual Burden Hour Title: Application to Participate in the Approved: August 27, 2020. Dollar Cost Equivalent: $3,619,150.57. IRS Acceptance Agent Program. Under 44 U.S.C. 3507(a) and 5 CFR OMB Number: 1545–1896. Sara L. Covington, 1320.5(b) and 1320.8(b)(3)(vi), FRA Form Number: 13551. Tax Analyst. informs all interested parties that it may Abstract: Form 13551 is used by all [FR Doc. 2020–19362 Filed 9–1–20; 8:45 am] not conduct or sponsor, and a parsons who wish to participate in the BILLING CODE 4830–01–P respondent is not required to respond to TIN (Taxpayer Identification Number) a collection of information unless it Acceptance Agent Program must apply displays a currently valid OMB control by completing this application. DEPARTMENT OF THE TREASURY number. Acceptance Agents are individuals or entities (colleges, financial institutions, Internal Revenue Service Authority: 44 U.S.C. 3501–3520. accounting firms, etc.) that have entered Proposed Collection; Comment into formal agreements with IRS that Brett A. Jortland, Request Concerning Procedures for permit them to assist alien individuals Deputy Chief Counsel. Requesting Competent Authority and other foreign persons with [FR Doc. 2020–19330 Filed 9–1–20; 8:45 am] Assistance Under Tax Treaties BILLING CODE 4910–06–P obtaining TINs. Current Actions: There are no changes AGENCY: Internal Revenue Service (IRS), being made to the form at this time. Treasury. Type of Review: Extension of a DEPARTMENT OF THE TREASURY ACTION: Notice and request for currently approved collection. comments. Internal Revenue Service Affected Public: Businesses or other for-profit organizations, not-for-profit SUMMARY: The Internal Revenue Service, Proposed Collection; Comment institutions, and Federal, state, local or as part of its continuing effort to reduce Request for Application To Participate tribal government. paperwork and respondent burden, in the IRS Acceptance Program Estimated Number of Respondents: invites the general public and other 4,422. Federal agencies to take this AGENCY: Internal Revenue Service (IRS), Estimated Time per Respondent: 30 opportunity to comment on continuing Treasury. minutes. information collections, as required by ACTION: Notice and request for Estimated Total Annual Burden the Paperwork Reduction Act of 1995. comments. Hours: 2,211. The IRS is soliciting comments The following paragraph applies to all concerning procedures for requesting SUMMARY: The Internal Revenue Service of the collections of information covered competent authority assistance under (IRS), in accordance with the Paperwork by this notice: tax treaties. Reduction Act of 1995 (PRA 95), An agency may not conduct or DATES: Written comments should be provides the general public and Federal sponsor, and a person is not required to received on or before November 2, 2020 agencies with an opportunity to respond to, a collection of information to be assured of consideration. comment on continuing collections of unless the collection of information ADDRESSES: information. This helps the IRS assess Direct all written comments displays a valid OMB control number. the impact of its information collection to Kinna Brewington, Internal Revenue Books or records relating to a collection requirements and minimize the Service, Room 6526, 1111 Constitution of information must be retained as long reporting burden on the public and Avenue NW, Washington, DC 20224. as their contents may become material helps the public understand the IRS’s FOR FURTHER INFORMATION CONTACT: in the administration of any internal information collection requirements and Requests for additional information or revenue law. Generally, tax returns and provide the requested data in the copies of the form should be directed to tax return information are confidential, desired format. The IRS is soliciting Kerry Dennis, at (202) 317–5751 or as required by 26 U.S.C. 6103. comments concerning Application to Internal Revenue Service, Room 6526, Request for Comments: Comments Participate in the IRS Acceptance Agent 1111 Constitution Avenue NW, submitted in response to this notice will Program. Form 13551 is used to gather Washington DC 20224, or through the be summarized and/or included in the information to determine applicant’s internet, at [email protected]. request for OMB approval. All eligibility in the Acceptance Agent SUPPLEMENTARY INFORMATION: comments will become a matter of Program. Title: Procedures for Requesting public record. Comments are invited on: Competent Authority Assistance Under DATES: Written comments should be (a) Whether the collection of Tax Treaties. received on or before November 2, 2020 information is necessary for the proper OMB Number: 1545–2044. to be assured of consideration. performance of the functions of the Revenue Procedure Number: 2015–40. ADDRESSES: Direct all written comments agency, including whether the Abstract: Taxpayers who believe that to Paul Adams, Internal Revenue information shall have practical utility; the actions of the United States, a treaty
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country, or both, result or will result in Estimated Total Annual Burden information is necessary for the proper taxation that is contrary to the Hours: 900. performance of the functions of the provisions of an applicable tax treaty are The following paragraph applies to all agency, including whether the required to submit the requested the collections of information covered information shall have practical utility; information in order to receive by this notice. (b) the accuracy of the agency’s estimate assistance from the IRS official acting as An agency may not conduct or of the burden of the collection of the U.S. competent authority. The sponsor, and a person is not required to information; (c) ways to enhance the respond to, a collection of information information is used to assist the quality, utility, and clarity of the taxpayer in reaching a mutual unless the collection of information displays a valid OMB control number. information to be collected; (d) ways to agreement with the IRS and the minimize the burden of the collection of appropriate foreign competent Books or records relating to a collection of information must be retained if their information on respondents, including authority. through the use of automated collection Current Actions: There are no changes contents may become material in the being made to the revenue procedure at administration of any internal revenue techniques or other forms of information this time. law. Generally, tax returns and tax technology; and (e) estimates of capital Type of Review: Extension of a return information are confidential, as or start-up costs and costs of operation, currently approved collection. required by 26 U.S.C. 6103. maintenance, and purchase of services Affected Public: Individuals or Request for comments: Comments to provide information. households, business or other for-profit submitted in response to this notice will Approved: August 28, 2020. be summarized and/or included in the organizations. Chakinna B. Clemons, Estimated Number of Respondents: request for OMB approval. All 300. comments will become a matter of Supervisory Tax Analyst. Estimated Time Per Respondent: 30 public record. Comments are invited on: [FR Doc. 2020–19361 Filed 9–1–20; 8:45 am] minutes. (a) Whether the collection of BILLING CODE 4830–01–P
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Part II
Department of Energy
Federal Energy Regulatory Commission 18 CFR Parts 292 and 375 Qualifying Facility Rates and Requirements Implementation Issues Under the Public Utility Regulatory Policies Act of 1978; Final Rule
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DEPARTMENT OF ENERGY SUMMARY: In this Order, the Federal Washington, DC 20426, (202) 502–6415, Energy Regulatory Commission issues [email protected]. Federal Energy Regulatory its final rule approving certain revisions Helen Shepherd (Technical Commission to its regulations implementing sections Information), Office of Energy Market 201 and 210 of the Public Utility Regulation, Federal Energy Regulatory 18 CFR Parts 292 and 375 Regulatory Policies Act of 1978 Commission, 888 First Street NE, [Docket Nos. RM19–15–000 and AD16–16– (PURPA). These changes will enable the Washington, DC 20426, (202) 502–6176, 000; Order No. 872] Commission to continue to fulfill its [email protected]. statutory obligations under sections 201 Thomas Dautel (Technical Qualifying Facility Rates and and 210 of PURPA. Information), Office of Energy Policy Requirements Implementation Issues DATES: This rule is effective December and Innovation, Federal Energy Under the Public Utility Regulatory 31, 2020. Regulatory Commission, 888 First Street Policies Act of 1978 FOR FURTHER INFORMATION CONTACT: NE, Washington, DC 20426, (202) 502– AGENCY: Federal Energy Regulatory Lawrence R. Greenfield (Legal 6196, [email protected]. Information), Office of the General Commission. SUPPLEMENTARY INFORMATION: Counsel, Federal Energy Regulatory ACTION: Final rule. Commission, 888 First Street NE, Table of Contents
Paragraph Nos.
I. Introduction ...... 1 II. Overview ...... 5 A. The Commission’s PURPA Regulations, as Revised by This Final Rule, Continue To Encourage the Development of QFs Within the Requirements of PURPA’s Statutory Limitations ...... 6 1. Avoided Cost Cap on QF Rates ...... 13 2. Limitation on Small Power Production Facilities Located at the Same ‘‘Site’’ ...... 17 3. Termination of Purchase Obligation for QFs With Nondiscriminatory Access to Certain Competitive Markets ...... 18 4. Final Rule’s Updating of the PURPA Regulations ...... 20 B. The Final Rule Ensures That the Commission’s Implementation of PURPA Continues To Benefit QFs, Purchasing Elec- tric Utilities, and Electric Consumers ...... 28 C. The Commission Is Not Eliminating Fixed Rate Pricing for QFs, But Rather Is Giving States the Flexibility To Require the Same Variable Energy Rate/Fixed Capacity Rate Construct That Applies Throughout the Electric Industry ...... 35 D. The Rate Changes Implemented by This Final Rule Put QF Rates on the Same Footing as Electric Utility Rates and Are Not Discriminatory ...... 39 E. The PURPA Compliance Issues Raised by Some Commenters Are Outside the Scope of This Rulemaking Proceeding ..... 42 III. Background ...... 47 A. Passage of PURPA in 1978 and the Commission’s Promulgation of Its PURPA Regulations in 1980 ...... 47 B. Circumstances Leading to the Commission’s Re-evaluation of the PURPA Regulations and the Issuance of the NOPR ..... 51 C. Summary of Changes to the PURPA Regulations Implemented by This Final Rule ...... 56 IV. Discussion ...... 67 A. General Legal Standards Under PURPA ...... 67 1. Encouragement of QFs ...... 68 a. Comments ...... 68 b. Commission Determination ...... 70 2. Discrimination ...... 79 a. Comments ...... 79 b. Commission Determination ...... 82 3. Unlawful Delegation and the Role of Nonregulated Electric Utilities ...... 89 a. Comments ...... 89 b. Commission Determination ...... 93 B. QF Rates ...... 96 1. Overview ...... 96 2. Use of Competitive Market Prices To Set As-Available Avoided Cost Rates ...... 103 a. NOPR Proposal ...... 104 b. Comments ...... 107 c. Commission Determination ...... 114 3. LMP as a Permissible Rate for Certain As-Available Avoided Cost Rates ...... 124 a. NOPR Proposal ...... 124 b. Comments ...... 129 i. Comments in Opposition ...... 129 (a) Utilizing Western EIM To Establish Avoided Costs ...... 137 ii. Comments in Support ...... 138 (a) Utilizing Western EIM To Establish Avoided Costs ...... 145 iii. Comments in Support With Requested Modifications/Clarifications ...... 146 c. Commission Determination ...... 151 i. Arguments Against the NOPR Proposal ...... 155 ii. Requests for Modification or Clarification of the NOPR ...... 173 iii. Western EIM ...... 177 4. Use of Market Hub Prices as a Permissible Rate for Certain As-Available QF Energy Sales ...... 180 a. NOPR Proposal ...... 180 b. Comments ...... 182 i. Comments in Support ...... 182 ii. Comments in Opposition ...... 184
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Paragraph Nos.
iii. Commission Determination ...... 189 c. Proposed Modifications ...... 195 i. Comments ...... 195 ii. Commission Determination ...... 200 5. Use of Formulas Based on Natural Gas Prices To Establish a Permissible Rate for Certain As-Available QF Energy Sales ...... 203 a. NOPR Proposal ...... 203 b. Comments ...... 206 c. Commission Determination ...... 211 6. Permitting the Energy Rate Component of a Contract To Be Fixed at the Time of the LEO Using Forecasted Values of the Estimated Stream of Market Revenues ...... 217 a. Comments ...... 219 b. Commission Determination ...... 227 7. Providing for Variable Energy Rates in QF Contracts ...... 232 a. Background ...... 232 b. NOPR Proposal ...... 234 c. General Comments on the NOPR Proposal ...... 245 i. Comments in Support of NOPR Proposal ...... 245 ii. Comments in Opposition to NOPR Proposal ...... 248 iii. Commission Determination ...... 253 d. Whether the Current Approach Has Resulted in Payments to QFs in Excess of Avoided Costs ...... 265 i. Comments in Support of NOPR Proposal ...... 265 ii. Comments in Opposition to NOPR Proposal ...... 272 iii. Commission Determination ...... 283 e. Whether the Proposed Change Would Violate the Statutory Requirement That the PURPA Regulations Encour- age QFs ...... 294 i. Comments ...... 294 i. Commission Determination ...... 295 f. Discrimination ...... 297 i. Comments in Support of NOPR Proposal ...... 297 ii. Comments in Opposition to NOPR Proposal ...... 298 iii. Commission Determination ...... 302 g. Effect of Variable Energy Rates on Financing ...... 304 i. Comments in Support of the NOPR Proposal ...... 304 ii. Comments in Opposition to the NOPR Proposal ...... 312 iii. Commission Determination ...... 335 h. Other Claimed Benefits of Fixed Avoided Cost Energy Rates ...... 350 i. Comments ...... 350 ii. Commission Determination ...... 351 i. Potential Modifications to NOPR Proposal ...... 354 i. Comments ...... 354 ii. Commission Determination ...... 357 8. Consideration of Competitive Solicitations To Determine Avoided Costs ...... 361 a. NOPR Proposal ...... 361 b. Comments ...... 368 i. Comments in Opposition ...... 368 ii. Comments in Support ...... 375 iii. Comments Requesting Modifications/Clarifications ...... 383 (a) Requests for Clarification and/or Separate Proceedings ...... 383 (b) Requests Regarding Proposed Criteria ...... 390 (c) Other Requests ...... 400 c. Commission Determination ...... 411 i. Requests for Clarification and/or Separate Proceedings ...... 415 ii. Proposed Criteria ...... 420 iii. Other Requests ...... 439 C. Relief from Purchase Obligation in Competitive Retail Markets ...... 442 1. NOPR Proposal ...... 442 2. Comments ...... 444 3. Commission Determination ...... 456 D. Evaluation of Whether QFs Are at Separate Sites ...... 458 1. Rebuttable Presumption of Separate Sites ...... 458 a. NOPR Proposal ...... 458 b. Commission Determination ...... 466 c. Need for Reform ...... 470 i. Comments ...... 470 ii. Commission Determination ...... 472 d. Site Definition ...... 473 i. Comments ...... 473 ii. Commission Determination ...... 476 e. Distance Between Facilities ...... 482 i. Comments ...... 482 ii. Commission Determination ...... 490 f. Factors ...... 497
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Paragraph Nos.
i. Comments ...... 497 ii. Commission Determination ...... 508 g. Exemptions ...... 512 i. Comments ...... 512 ii. Commission Determination ...... 514 2. Electrical Generating Equipment ...... 515 a. NOPR Proposal ...... 515 b. Comments ...... 518 c. Commission Determination ...... 521 E. QF Certification Process ...... 525 1. NOPR Proposal ...... 525 2. Comments ...... 530 3. Commission Determination ...... 547 F. Corresponding Changes to the FERC Form No. 556 ...... 570 1. NOPR Proposal ...... 570 2. Comments ...... 577 3. Commission Determination ...... 584 G. PURPA Section 210(m) Rebuttable Presumption of Nondiscriminatory Access to Markets ...... 597 1. PURPA Section 210(m) Implementation ...... 597 a. NOPR Proposal ...... 597 b. Comments in Opposition ...... 602 i. Insufficient Evidentiary Support ...... 603 ii. Administrative Burden and Complex Market Rules ...... 611 c. Comments in Support ...... 614 d. Comments Requesting Modifications/Clarifications ...... 617 e. Commission Determination ...... 624 2. Reliance on RFPs and Liquid Market Hubs To Terminate Purchase Obligation Under PURPA Section 210(m) ...... 648 a. NOPR Discussion ...... 648 b. Comments ...... 651 i. Comments in Opposition ...... 651 ii. Comments in Support ...... 655 c. Commission Determination ...... 659 H. Legally Enforceable Obligation ...... 663 1. NOPR Proposal ...... 663 2. Comments ...... 666 a. Comments in Opposition ...... 666 b. Comments in Support ...... 673 c. Comments Requesting Modification ...... 676 i. Studies ...... 677 ii. Commercial Viability ...... 679 iii. Financial Viability ...... 681 iv. Rejecting QF Purchases and Expanded Curtailment Rights ...... 683 3. Commission Determination ...... 684 V. Information Collection Statement ...... 697 VI. Environmental Analysis ...... 702 A. Comments ...... 703 B. Commission Determination ...... 710 1. No EIS or EA is Required ...... 712 a. There Is No Project That Defines the Scope and Limits of QF Development ...... 712 b. A Categorical Exclusion Applies ...... 720 i. Changes That Are Clarifying in Nature ...... 721 ii. Changes That Are Corrective in Nature ...... 722 iii. Changes That Are Procedural in Nature ...... 727 2. The NEPA Analysis for Promulgation of the Original PURPA Regulations in 1980 Cannot Be Replicated Here ...... 728 3. This Proceeding Does Not Trigger Any ESA Consultation Requirement ...... 737 VII. Regulatory Flexibility Act Certification ...... 743 VIII. Document Availability ...... 750 IX. Effective Dates and Congressional Notification ...... 753
I. Introduction Regulatory Policies Act of 1978 regulations were promulgated in 1980 2 1. In this Order, the Federal Energy (PURPA). and have been modified in only specific Regulatory Commission (Commission) 2. On September 19, 2019, the respects since then. Approximately 130 issues its final rule approving certain Commission issued a notice of proposed separate comments were submitted in revisions to its regulations (PURPA rulemaking (NOPR) proposing to modify response to the NOPR,4 several of which Regulations) 1 implementing sections its PURPA Regulations.3 Those were submitted on behalf of multiple 201 and 210 of the Public Utility parties. In total, over 1,600 pages of 2 16 U.S.C. 796(17)–(18), 824a–3. comments were submitted, and in 1 18 CFR part 292 (2019). In connection with the 3 Qualifying Facility Rates and Requirements addition thousands of pages of exhibits revisions to the PURPA Regulations, the Implementation Issues Under the Public Utility Commission also is revising its delegation of Regulatory Policies Act of 1978, 168 FERC ¶ 61184 authority to Commission staff in 18 CFR pt. 375. (2019) (NOPR). 4 See Appendix for list of commenters.
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were attached to the comments. The • We revise the regulations to lower proposed in the NOPR applaud the entities that filed comments are listed in the rebuttable presumption of small Commission for eliminating what they Appendix A. This final rule addresses power production QFs’ argue amounts to an improper subsidy comments received in response to the nondiscriminatory access to 5 MW, of QFs.8 NOPR. rather than 1 MW as proposed in the 8. Neither side is correct about either 3. We largely adopt the NOPR NOPR, and include factors that a small what PURPA and the current PURPA proposals. However, this final rule power production QF sized greater than Regulations require, or the basis for the makes certain modifications to the 5 MW could rely on to rebut the changes to the PURPA Regulations NOPR proposals, as further discussed presumption that it has proposed in the NOPR. below. nondiscriminatory access to markets 9. As an initial matter, PURPA was 4. Given the Commission’s expressed defined in PURPA sections 210(m)(1); not a directive to the Commission to intent in the NOPR to propose revisions and encourage QF development without to the PURPA Regulations that more • We revise the proposed limitation. Indeed, as explained below, closely adhere to the goals and terms of requirements to establish a legally Congress included several limitations in PURPA,5 we considered comments enforceable obligation (LEO) to provide PURPA. By reading the statute as a regarding whether these proposals are that with regard to the issue of obtaining whole, and the PURPA Regulations as a consistent with the requirements of permits, QFs need only have applied for whole as revised by this final rule, it is PURPA. Based on that review and all required permits, instead of being clear that the PURPA Regulations further consideration, we adopt the required to have already obtained those continue to encourage the development following changes to the proposals in permits. of QFs consistent with PURPA.9 the NOPR, among certain others 10. We also emphasize that we do not described below: II. Overview by this final rule change other elements • We establish a rebuttable 5. Before discussing each of the to the Commission’s existing PURPA presumption, rather than a per se rule, individual changes to the PURPA Regulations that continue to encourage that locational marginal prices (LMPs) Regulations adopted herein, this final QF development. These elements may reflect a purchasing electric rule first addresses certain overall include, but are not limited to, rules utility’s avoided energy costs; themes raised in the comments on the that: (1) Require electric utilities to • We provide that any competitive NOPR, both those supporting the NOPR provide backup electric energy to QFs solicitations used to establish avoided and those opposing. on a non-discriminatory basis and at capacity costs must adhere to the just and reasonable rates; (2) require Commission’s Allegheny 6 standard for A. The Commission’s PURPA electric utilities to interconnect with evaluating competitive solicitations; Regulations, as Revised by This Final QFs; and (3) provide exemptions to QFs • We do not adopt the proposed rule Rule, Continue To Encourage the from many provisions of the Federal permitting states with retail competition Development of QFs Within the Power Act (FPA) and state laws to allow relief from the purchase Requirements of PURPA’s Statutory governing utility rates and financial obligation but instead clarify that the Limitations organization.10 These provisions Commission’s existing PURPA 6. PURPA section 210(a) requires that encourage the development of QFs by Regulations already require that states, the Commission prescribe rules that it relieving them of certain regulatory to the extent practicable, must account determines necessary to encourage the burdens otherwise imposed on sellers of for reduced loads in setting QF capacity development of qualifying small power power and ensure they can operate their rates; production facilities and cogeneration facilities. Moreover, we stress that, • We clarify terminology we used in facilities. besides the changes to the PURPA the NOPR relating to the determination 7. The bulk of the criticism of the Regulations regarding applications to of whether small power production Commission’s proposed rule changes is terminate a purchasing electric utility’s facilities are separate facilities to focus based on a widespread mandatory purchase obligation under not on whether they are separate misunderstanding, as reflected in the PURPA section 210(m) (see infra section facilities, but rather to mirror the comments on the NOPR, that PURPA IV.G), nothing in this final rule statutory language and thus focus on and the PURPA Regulations were eliminates QFs’ rights to sell electric whether they are at ‘‘the same site’’; intended to encourage QF development energy or capacity as provided under • We clarify in the regulations that without any limit, and that the rule PURPA. protests may be made to initial self- changes proposed in the NOPR 11. As discussed in greater detail certifications and applications for improperly reduce or even eliminate below, while PURPA provided for the Commission certification, but only to encouragement in contravention of the encouragement of cogeneration and small power production, PURPA also self-recertifications and applications for statute. Those commenters opposing the provided that the Commission could not Commission recertification making NOPR proposals argue that the prescribe a rule that provided for ‘‘a rate substantive changes to the existing Commission has determined, in which exceeds the incremental cost to certification; contravention of the statute, that there the electric utility of alternative electric • We identify additional factors that no longer is a need to encourage QFs, energy.’’ 11 Furthermore, PURPA can be considered for small power or eliminated any provision that requires the Commission to ‘‘insure’’ production qualifying facilities (QFs) provides such encouragement.7 Many of that the resulting rates ‘‘shall be just and located more than one but less than 10 the commenters supporting the changes miles apart, such as evidence of shared reasonable to the electric consumers of control systems, common permitting 7 See, e.g., Biological Diversity Comments at 14; 8 ConEd Development Comments at 2; Harvard See Competitive Enterprise Institute Comments and land leasing, and shared step-up at 3; Progressive Policy Institute Comments at 1–2; transformers; Electricity Law Comments at 4; New England Small Hydro Comments at 4; NIPPC, CREIA, REC, and SBE Council Comments at 2; Mr. Moore Comments OSEIA Comments at 3, 21, 28; Public Interest at 1–2. 5 NOPR, 168 FERC ¶ 61,184 at P 31. Organizations Comments at 9, 39; Solar Energy 9 16 U.S.C. 824a–3(a). 6 Allegheny Energy Supply Co., LLC, 108 FERC Industries Comments at 4; Southeast Public Interest 10 See 18 CFR 292.303(c), 292.305, 292.601–02. ¶ 61,082, at P 18 (2004) (Allegheny). Organizations Comments at 17. 11 Compare id. with 16 U.S.C. 824a–3(b).
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the electric utility and in the public purchasing from a cogenerator or small cost of alternative electric energy. The interest[.]’’ 12 Likewise, while PURPA power producer is meant to act as an upper Commission acknowledged in this provided for the encouragement of small limit on the price at which utilities can be regard that some commenters had required under this section to purchase power production, PURPA also limited 18 asserted that, ‘‘if the avoided cost of the facilities which could be encouraged electric energy. energy at the time it is supplied is less to those facilities with no more than 80 14. This upper limit on QF rates than the price provided in the contract MW power production capacity at the established in section 210(b), equal to a or obligation, the purchasing utility same site.13 purchasing utility’s incremental costs, would be required to pay a rate for 12. Nothing in the text of PURPA commonly called ‘‘avoided costs,’’ purchases that would subsidize the requires the establishment of a subsidy implements Congress’s intent that QFs qualifying facility at the expense of the for QFs. This point was confirmed in not be subsidized. It ensures that the utility’s other ratepayers.’’ 24 In the Conference Report accompanying purchasing utility cannot be required to response, the Commission stated that it PURPA’s passage: ‘‘The provisions of pay more for power purchased from a ‘‘recognize[d] this possibility, but is this section are not intended to require QF than it would otherwise pay to cognizant that in other cases, the the rate payers of a utility to subsidize generate the power itself or to purchase required rate will turn out to be lower cogenerators or small power power from a third party. than the avoided cost at the time of producers.’’ 14 Congress thus structured 15. Consistent with the statutory purchase.’’ 25 The Commission PURPA both specifically to give effect to standard, when the Commission issued concluded that any over- and under- its intent that QFs not be subsidized and its PURPA Regulations in 1980, it set recoveries compared to avoided cost also to impose other mandatory limits the rates for QFs at, but not above, the ‘‘will balance out’’ and, based on this on the Commission’s ability to statutorily defined incremental or conclusion, found that the fixed energy encourage QFs that are relevant to this avoided cost of alternative electric and capacity rate option applicable to final rule, as briefly summarized below. energy.19 The PURPA Regulations long-term contracts or other legally 1. Avoided Cost Cap on QF Rates applied this limitation generally to QF enforceable obligations did not violate rates, without distinguishing between the statutory cap.26 But, to be clear, the 13. PURPA section 210(b) sets out the as-available energy 20 and the fixed option the Commission implemented in standards governing the rates energy and capacity rate option 15 1980 was not based on any purchasing utilities must pay to QFs. applicable to long-term contracts or determination by the Commission that Sections 210(b)(1) and (b)(2) provide other legally enforceable obligations.21 the rates in QF contracts may routinely that QF rates ‘‘shall be just and In either case, though, the PURPA exceed avoided costs in the ordinary reasonable to the electric consumers of Regulations essentially capped the rate course of events in order to encourage the electric utility and in the public paid to QFs at the purchasing electric QFs. interest’’ and ‘‘shall not discriminate utility’s avoided costs.22 against qualifying cogenerators or 16. Order No. 69, in which the 2. Limitation on Small Power qualifying small power producers.’’ 16 Commission promulgated the PURPA Production Facilities Located at the After establishing these standards, Regulations,23 makes clear that the Same ‘‘Site’’ Congress then placed, in the final Commission also recognized that 17. Another way in which Congress sentence of section 210(b), a cap on the allowing the option for a fixed energy set boundaries on the Commission’s level of the rates utilities could be and capacity rate option for long-term ability to encourage development of QFs required to pay QFs: ‘‘No such rule contracts or other legally enforceable was to define small power production prescribed under subsection (a) shall obligations could result in a rate that, at facilities, one of the categories of provide for a rate which exceeds the times, exceeded incremental or avoided generators that under the statute is to be incremental cost to the electric utility of encouraged. The definition of small alternative electric energy.’’ 17 As the 18 Conf. Rep. at 98 (emphasis added). power production facilities applies to Conference Report for PURPA explains: 19 Compare 16 U.S.C. 824a–3(b) & (d) with 18 CFR almost all renewable resources that wish 292.101(b)(6), 292.304(a)(2) & (b)(2). [T]he utility would not be required to to be QFs, requiring that those facilities 20 18 CFR 292.304(d)(1). purchase electric energy from a qualifying 21 have ‘‘a power production capacity cogeneration or small power production 18 CFR 292.304(d)(2) (providing QFs the right to elect avoided costs calculated at the time of which, together with any other facilities facility at a rate which exceeds the lower of delivery or avoided costs calculated at the time the located at the same site (as determined the rate described above, namely a rate which obligation is incurred). In this final rule, we refer by the Commission), is not greater than is just and reasonable to consumers of the to the QF’s option for avoided costs calculated at 80 megawatts.’’ 27 In order to comply utility, in the public interest, and the time the obligation is incurred as the fixed nondiscriminatory, or the incremental cost of energy and capacity rate option. 18 CFR with this statutory requirement that the alternate electric energy. This limitation on 292.304(d)(2). capacity of all small power production the rates which may be required in 22 The regulations, however, also allowed both for facilities ‘‘located at the same site’’ negotiated rates that differed from the rates that cannot exceed 80 MW, the Commission would otherwise be applicable, see 18 CFR 12 16 U.S.C. 824a–3(b)(1). 292.301(b), and for rates to be set based on is required to define what constitutes a 13 Compare 16 U.S.C. 824a–3(a) with 16 U.S.C. estimates of avoided costs even though such rates ‘‘site.’’ The Commission determined in 796(17)(A)(ii). might differ from avoided costs at the time of 1980 that, essentially, those facilities 14 H.R. Rep. No. 95–1750, at 98 (1978) (Conf. delivery. See 18 CFR 292.304(b)(5). that are owned by the same or affiliated Rep.). 23 Small Power Production and Cogeneration 15 entities and using the same energy 16 U.S.C. 824a–3(b). Facilities; Regulations Implementing Section 210 of 16 Id. the Public Utility Regulatory Policies Act of 1978, resource should be deemed to be at the 17 Id. (emphasis added). The statute defines an Order No. 69, FERC Stats. & Regs. ¶ 30,128, at same site ‘‘if they are located within one electric utility’s ‘‘incremental costs’’ as ‘‘the cost to 30,880 (cross-referenced 10 FERC ¶ 61,150), order mile of the facility for which the electric utility of the electric energy which, but on reh’g, Order No. 69–A, FERC Stats. & Regs. for the purchase from such cogenerator or small ¶ 30,160 (1980) (cross-referenced at 11 FERC 24 power producer, such utility would generate or ¶ 61,166), aff’d in part & vacated in part sub nom. Order No. 69, FERC Stats. & Regs. ¶ 30,128 at purchase from another source.’’ 16 U.S.C. 824a– Am. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 30,880. 3(d); see also 18 CFR 292.101(b)(6) (implementing (D.C. Cir. 1982), rev’d in part sub nom. Am. Paper 25 Id. same and defining such ‘‘incremental costs’’ as Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 26 Id. ‘‘avoided costs’’). 402 (1983) (API). 27 16 U.S.C. 796(17)(A)(ii).
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qualification is sought.’’ 28 This with nondiscriminatory access to with the statutory requirement that definition, known as the ‘‘one-mile certain markets. Contrary to small power production facilities rule,’’ interpreted Congress’s limitation commenters’ assertions that the located at the same site cannot exceed of 80 MW located at the same site to Commission has determined that it no 80 MW. And, 15 years after Congress apply to just those affiliated small longer is necessary to encourage QFs added PURPA section 210(m), because power production qualifying facilities and therefore that the Commission is the Commission can now make the located within one mile of each other. making these changes in an determination, described below, that impermissible attempt to undo smaller QFs have non-discriminatory 3. Termination of Purchase Obligation PURPA,32 we are modifying the PURPA access to RTO/ISO markets, an update for QFs With Nondiscriminatory Access Regulations based on demonstrated to the rebuttable presumption regarding to Certain Competitive Markets changes in circumstances since the non-discriminatory access to those 18. Finally, Congress amended current PURPA Regulations were first markets is appropriate to better ensure PURPA in 2005 to further limit the adopted to ensure that the regulations compliance with the statute. statute. Congress amended PURPA continue to comply with PURPA’s 24. Some commenters incorrectly section 210 to add section 210(m), statutory requirements established by assert that the final rule impermissibly which provides for termination of the Congress. revises the PURPA Regulations in a way requirement that an electric utility enter 21. For example, as explained in more that no longer encourages QFs. PURPA into a new obligation or contract to detail below, the Commission’s section 210(a) provides not simply that purchase from a QF if the QF has expectation expressed in 1980 that over- the Commission is to prescribe rules nondiscriminatory access to certain and under-recovery in rates compared to that encourage QFs, but rather that the defined types of markets.29 This avoided cost ‘‘will balance out’’ 33 was Commission is to ‘‘prescribe, and from amendment reflected Congress’s critical to the Commission’s time to time thereafter revise, such rules judgment that non-discriminatory determination in 1980 that the fixed as it determines necessary to encourage’’ access to these markets provided energy and capacity rate option QFs. Carrying out Congress’s directive adequate encouragement for those QFs. applicable to long-term contracts or to ‘‘from time to time thereafter revise’’ 19. Congress directed the Commission other legally enforceable obligations did the rules is at the heart of what the to implement this requirement, which it not violate the statutory avoided cost Commission is doing in this final rule. did in Order No. 688. In that order, the cap on QF rates. However, record Consistent with this directive, the Commission identified certain markets evidence now demonstrates that this Commission is considering revisions to in which utilities would no longer be expectation no longer is necessarily ‘‘such rules as it determines necessary subject to the PURPA mandatory accurate. The Commission’s change to to’’ encourage QFs in light of current 34 purchase obligation under PURPA the PURPA Regulations adopted in this industry circumstances. 25. The changes adopted in this final section 210(m) because certain QFs have final rule, giving states the ability to rule result from the need for the PURPA nondiscriminatory access to such require variable energy rates in long- Regulations to continue to comply with markets.30 Although not required in the term contracts or other legally the directives Congress established new PURPA section 210(m), the enforceable obligations, allows the when it enacted PURPA in 1978, and Commission established a rebuttable states to better ensure that QF rates are then again when Congress amended presumption that a QF with a net power at, but do not exceed, the statutory PURPA in 2005. These changes are not production capacity at or below 20 MW maximum rate established by Congress. based on any determination by the does not have nondiscriminatory access 22. This change is important for Commission that the encouragement to such markets.31 In creating this purposes of compliance with PURPA’s directed by PURPA is no longer needed. rebuttable presumption, the statutory mandates. As explained below, The question of whether QFs should Commission found persuasive setting QF rates at avoided costs allows continue to be encouraged or not arguments that some QFs may not have the Commission to comply with the remains a question for Congress. nondiscriminatory access to markets in statutory goals of encouraging QFs and 26. Moreover, PURPA also requires light of their small size. providing for nondiscriminatory rates the Commission to insure that the rates 4. Final Rule’s Updating of the PURPA while at the same time ensuring that for QF purchases be ‘‘just and Regulations such rates are just and reasonable to reasonable to the electric consumers of consumers and do not subsidize QFs. the electric utility and in the public 20. In this final rule, we are amending The record shows that on some interest[.]’’ 35 The obligation to the PURPA Regulations, principally occasions long-term fixed QF rates were encourage is also limited by the with regard to the three statutory well above actual avoided costs, thereby requirement that, ‘‘No such rule provisions described above, i.e.: (1) The causing consumers to subsidize those prescribed under subsection (a) [the avoided cost cap on QF rates; (2) the 80 QFs in contravention of PURPA and the encouragement provision] shall provide MW limitation applicable to the Commission’s expectations. for a rate which exceeds the incremental combined capacity of affiliated small 23. Similarly, the changes cost to the electric utility of alternative power production QFs located at the implemented by the Commission in this electric energy.’’ 36 same site; and (3) the termination of the final rule to the one-mile rule are 27. We recognize that some of the mandatory purchase obligation for QFs intended to better ensure compliance comments opposing the NOPR may
28 18 CFR 292.204(a)(ii). 32 Biomass Power Comments at 2; Biological 34 We view the revisions to our rules 29 See 16 U.S.C. 824a–3(m). Diversity at 12; EPSA Comments at 6 (‘‘[T]he NOPR implementing PURPA that we adopt in this final 30 New PURPA Section 210(m) Regulations changes ‘would effectively gut’ PURPA.’’); NIPPC, rule as consistent with Congress’s explicit directive Applicable to Small Power Production and CREA, REC, and OSEIA Comments at 28–29; Public that the Commission ‘‘from time to time thereafter Cogeneration Facilities, Order No. 688, 117 FERC Interest Groups Comments at 25 (‘‘[T]he changes [to] revise’’ the rules. We do not view Congress as ¶ 61,078, at PP 9–12 (2006), order on reh’g, Order proposed in the NOPR will gut PURPA-mandated intending that the Commission only ever consider No. 688–A, 119 FERC ¶ 61,305 (2007), aff’d sub measures to encourage QF development.’’); Solar the circumstances that existed in the late 1970s and nom. Am. Forest & Paper Ass’n v. FERC, 550 F.3d Energy Industries Comments at 8–14. not current circumstances, 40 years later. 1179 (D.C. Cir. 2008). 33 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at 35 16 U.S.C. 824a–3(b). 31 18 CFR 292.309(d)(1). 30,880. 36 16 U.S.C. 824a–3(b).
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have been influenced by the explained that the full avoided cost rate Using transparent market prices to Commission’s recitation in the requirement encourages QF establish as-available avoided cost rates Background section of the NOPR of the development because QFs ‘‘retain an also allows QFs, utilities, and the states broad changes in circumstances since incentive to produce energy under the to avoid the expenditure of the time and the PURPA Regulations were first full-avoided-cost rule so long as their resources involved in litigating promulgated 40 years ago, including the marginal costs did not exceed the full administratively-set avoided cost rates, discovery of significant new natural gas avoided cost of the purchasing and allows those rates to automatically reserves, the evolution of the electric utility.’’ 41 adjust—up and down—as avoided costs industry to include a significant 30. In addition, several of the changes change. to the current PURPA Regulations independent power presence, the 32. Similarly, the provisions regarding implemented by this final rule are based establishment of organized competitive competitive solicitations adopted herein expressly on a finding that they are markets, and the advances in renewable were added at the suggestion of both 37 beneficial to QFs as well as to energy technologies. We clarify that NARUC and certain developers of purchasing utilities and ratepayers. For the Commission referenced this general renewable resource QFs, such as Solar example, the provisions of the final rule background information in the NOPR Energy Industries. These competitive allowing for energy rates to be based on primarily to explain why it decided to solicitations can provide a fair and re-evaluate its PURPA Regulations at all transparent, competitive market transparent method for QFs to establish and as Congress said we should, and not prices—in appropriate circumstances— full avoided cost rates. As Solar Energy necessarily to support the individual are supported by comments submitted Industries stated in its comments, proposals included in the NOPR. The at the Technical Conference, where ‘‘[c]ompetitive solicitations, with facts we rely on to propose specific representatives of QFs and utilities both adequate safeguards, can deliver changes, which include some, but not expressed a preference for transparent substantial value.’’ 44 Competitive all, of those background facts, were prices for QFs.42 This conclusion is solicitations may be an especially cited in the specific sections of the supported by the Fitch Report, cited by appropriate tool in those regions outside NOPR describing those proposed NIPPC, CREA, REC, and OSEIA, of Regional Transmission Organizations changes. And the facts on which we rely explaining how Fitch evaluates the to promulgate the specific changes in financial strength of renewable energy (RTOs) and Independent System this final rule again are cited in the projects. In this report, Fitch states that Operators (ISOs) where there are no specific sections describing those it gives a ‘‘stronger’’ evaluation to organized competitive markets where changes. projects with power sales contract QFs can make sales. prices that are ‘‘indexed using simple, 33. Likewise, the LEO provisions B. The Final Rule Ensures That the broad-based publicly available adopted herein provide important Commission’s Implementation of indexation formulas.’’ 43 benefits to QFs. Under the current PURPA Continues To Benefit QFs, 31. Setting prices that are indexed PURPA Regulations, a LEO gives QFs Purchasing Electric Utilities, and using simple, broad-based publicly the enforceable right to require utilities Electric Consumers available formulas is precisely what the to purchase the QFs’ power at avoided 28. The final rule implements Commission’s changes permitting cost rates.45 This is an important right additional changes consistent with reference to competitive market prices that contributes to a QF owner’s ability PURPA that also are designed to benefit will achieve. Such prices reflect avoided to obtain financing, especially the QFs, purchasing utilities, and electric costs in a simpler, more transparent, development financing needed to consumers. The changes to the PURPA and predictable manner than through an engage in the activities necessary to Regulations adopted in this final rule administrative process, which should subsequently obtain construction and will enable the Commission to continue encourage the development of QFs permanent financing. However, the satisfying the statutory requirement that while at the same time providing PURPA Regulations are silent as to the Commission promulgate rules to benefits to utilities and consumers. when and how a LEO is established, encourage QF development consistent which can leave QFs uncertain as to with PURPA’s requirements. Claims to regulations and subsequent decisions have used the when this key right has been the contrary by commenters to the effect term ‘‘avoided cost’’ to explain the Commission’s application of the ‘‘incremental cost’’ standard. The established. By providing more specific that the ‘‘proposals are uniformly biased API decision and early Commission precedents guidance as to when a LEO is against QF development’’ 38 have no referred to ‘‘full’’ avoided costs to distinguish established, the new rule creates greater merit. between the Commission’s decision to set QF rates certainty for QFs (and utilities) on this 29. As an initial matter, we are not at avoided costs and proposals from certain parties that rates be set at something less than avoided important element of QF development. changing the determination in the costs. We continue to use the terms avoided costs PURPA Regulations that QF rates must and full avoided costs as being consistent with the 44 Solar Energy Industries Comments at 38. Solar equal a purchasing electric utility’s full statutory term incremental cost. Energy Industries agreed that the competitive avoided costs.39 As the Supreme Court 41 Id. at 416. solicitation provisions proposed in the NOPR ‘‘set noted in API, the full avoided cost rate 42 See American Forest & Paper Association, forth many important safeguards,’’ but Comments, Docket No. AD16–16–000, at 8 (filed recommended that additional safeguards be requirement represents the maximum June 8, 2016) (‘‘To the extent possible, these implemented. Those comments are discussed rate permitted under PURPA, and determinations [of avoided costs] should not be below, and we have specifically adopted Solar thereby provides important made in a ‘black box’, but rather, as part of an open Energy Industries request made earlier in this encouragement to QFs.40 The Court and transparent method and process.’’); Edison proceeding that all competitive solicitations must Electric Institute (EEI) Comments, Docket No. be conducted pursuant to the Commission’s AD16–16–000, at 3 (filed June 30, 2016) (‘‘Where Allegheny standard. See Solar Energy Industries 37 NOPR, 168 FERC ¶ 61,184, at PP 15–27. transparent competitive markets with day ahead Supplemental Comments, Docket No. AD16–16– 38 Harvard Electricity Law Comments at 1. prices exist, there is no reason to adhere to second- 000, at 32–34 (filed Aug. 28, 2019). 39 See 18 CFR 292.304(b)(2); NOPR, 168 FERC best avoided cost pricing mechanisms.’’). 45 See 18 CFR 292.304(d)(2). Although the final ¶ 61,184 at P 34. 43 NIPPC, CREA, REC, and OSEIA Comments at rule gives states the flexibility to require that energy 40 API, 461 U.S. at 413. PURPA does not use the 37–38 (citing FitchRatings, Global Infrastructure & rates vary over the term of the LEO and be terms ‘‘avoided cost’’ or ‘‘full avoided cost’’; rather, Project Finance, Renewable Energy Project Rating calculated at the time of delivery, the final rule PURPA uses the term ‘‘incremental cost of Criteria,’’ at 3 (Feb. 26, 2019), https:// retains the QF’s option to choose a fixed capacity alternative electric energy.’’ The Commission’s www.fitchratings.com/site/re/10061770). rate calculated at the time the LEO is established.
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34. Some commenters assert that the when a LEO commences, which we find costs of facilities (i.e., debt repayment guidance provided by the Commission will encourage the development of QFs. and a return on the equity invested in may make it more difficult to obtain a the facility).54 Consequently, a fixed C. The Commission Is Not Eliminating LEO.46 Their specific concerns are capacity rate in a QF contract based on Fixed Rate Pricing for QFs, But Rather a purchasing electric utility’s capacity discussed in detail below. But what Is Giving States the Flexibility To rates should typically be sufficient to those commenters ignore is that, by Require the Same Variable Energy Rate/ recover the QF’s financing costs and establishing objective and reasonable Fixed Capacity Rate Construct That should therefore continue to facilitate state-determined criteria limited to Applies Throughout the Electric QF financing. We recognize that a QF’s demonstrating commercial viability and Industry financial commitment, we also are financing costs may be different from protecting QFs against onerous 35. Another misconception reflected the purchasing electric utility’s avoided requirements for a LEO that hinder in several comments is that the costs and, therefore, the full avoided financing, such as a requirement for a Commission proposed in the NOPR to cost rate that the QF receives may not utility’s execution of an interconnection eliminate fixed rate pricing for QFs. support the financing of a QF. But this agreement 47 or power purchase Commenters argue that QFs cannot is a consequence of how Congress agreement,48 or requiring that QFs file a obtain financing without fixed rates, structured PURPA, which sets rates formal complaint with the state and from this they claim that the based on the avoided costs of the commission,49 or limiting LEOs to only proposal to give states the flexibility to purchasing utility rather than on the those QFs capable of supplying firm require variable energy rates would have actual costs the QF incurs producing the power,50 or requiring the QF to be able a devastating effect on future QF power being sold.55 52 to deliver power in 90 days.51 By development. 38. Another important aspect of the 36. This assertion that the making clear in the PURPA Regulations variable energy rate/fixed capacity rate Commission has eliminated fixed rates that such conditions are not permitted, construct is that this is the standard rate for QFs is not correct. The NOPR but describing which prerequisites a structure used throughout the electric proposal (which we adopt in this final state may impose to establish a LEO to industry for power sales agreements that rule) gave states the flexibility, should 56 determine which QFs are commercially include the sale of capacity. That they choose to take advantage of this viable and financially committed, we states will be allowed to require QF flexibility, to require that the avoided are providing objective criteria to clarify contracts to be structured similarly to cost energy rates in QF contracts must the contract structure used in the rest of vary depending on avoided costs at the the electric industry has important 46 See NIPPC, CREA, REC, and OSEIA Comments time of delivery (rather than being fixed at 81 (‘‘[A]ny requirement to demonstrate financing implications. In particular, this provides to create a LEO violates the fundamental rule that at the time a LEO is incurred). The flexibility to states to ensure that the the utility’s actions should not be allowed to deny NOPR thus made clear: ‘‘Under the avoided cost rate will be closer to the the QF a LEO because the utility could prevent proposed revisions to § 292.304(d), a QF actual rate the purchasing electric utility creation of a LEO simply by refusing to sign the would continue to be entitled to a PPA needed to secure such financing.’’); Public and its customers would have paid if Interest Organizations Comments at 98 (‘‘[T]he contract with avoided capacity costs the purchasing electric utility had Commission’s proposal to require QFs to calculated and fixed at the time the LEO generated this electric energy itself or demonstrate commercial viability in order to obtain is incurred.’’ 53 We are retaining in this purchased such electric energy from a LEO will prevent many QFs from ever attaining final rule the option granted to QFs to commercial viability at all. Creating a new another source. Furthermore, the record administrative obstacle to QF financing in this way fix their capacity rates for the term of evidence demonstrating significant flies in the face of PURPA’s mandate to reduce their contracts at the time the LEO is amounts of non-QF generation facilities barriers to QF development.’’); Solar Energy incurred. in operation today shows that the Industries Comments at 41 (‘‘Establishing higher 37. The fact that we are giving states barriers to a determination of ‘commercial viability’ owners of such facilities are able to will only lead QF developers to invest additional the flexibility to either require QF obtain financing based on this same development capital and will simply weed out contracts to have fixed capacity and variable energy rate/fixed capacity rate those smaller companies that choose not to, or are variable energy rates or to continue as unable to, invest heavily in early-stage development before to provide QFs the option of 54 See Order No. 69, FERC Stats. & Regs. ¶ 30,128 activity before an avoided cost rate is known. It is at 30,865. unjust and unreasonable to cause QFs to invest tens fixed capacity and fixed energy rates— 55 See API, 461 U.S. at 414, 415 (stating that of millions of dollars in site control, permit has important consequences for the ‘‘Congress did not intend to impose traditional acquisition, interconnection, and other ability of QF owners to finance their ratemaking concepts on sales by qualifying facilities development costs simply to secure the opportunity projects. The energy rates of purchasing to utilities’’ and that QFs ‘‘would retain an to negotiate with the purchasing utility for a incentive to produce energy under the full-avoided- contractual commitment.’’); Southeast Public electric utilities, upon which avoided cost rule so long as their marginal costs did not Interest Organizations Comments at 41 (describing cost energy rates would be based, exceed the full avoided cost of the purchasing proposal as ‘‘discourag[ing] QF development since typically reflect mainly the variable utility’’). achieving some of the indicia suggested by the costs of producing energy, such as the 56 Commission often circularly requires that QF Cf. Town of Norwood v. FERC, 962 F.2d 20, 21, developers have already obtained financing’’). cost of fuel and variable operations and 24 (D.C. Cir. 1992) (‘‘The rate design before us, like most wholesale electric rates, consists of separate 47 See, e.g., FLS Energy, Inc., 157 FERC ¶ 61,211, maintenance (O&M), especially for a monthly demand and energy charges. The demand at P 26 (2016) (FLS) (stating that requiring signed fossil fuel generator. Meanwhile, a component is calculated to recover NEPCO’s fixed interconnection agreement as prerequisite to LEO is purchasing electric utility’s capacity (or capacity-related) costs, such as construction and inconsistent with PURPA Regulations). rates, upon which avoided cost capacity debt service, which it incurs regardless of how 48 See, e.g., Murphy Flat Power, LLC, 141 FERC much electricity it produces. The energy charge is ¶ 61,145, at P 24 (2012) (finding that requiring a rates would be based, tend to reflect fixed costs, including the financing designed to recover the company’s variable costs, signed and executed contract with an electric utility which it incurs only in the course of actually as a prerequisite to a LEO is inconsistent with producing electricity; fuel is a prime example.... PURPA Regulations. 52 See, e.g., Public Interest Organizations With the cost outlook constantly in flux due to 49 See, e.g., Grouse Creek Wind Park, LLC, 142 Comments at 35–38 (allowing variable rates will changing economic conditions, some degree of FERC ¶ 61,187, at P 40 (2013). further discourage wind and solar QF volatility is necessary if prices are to signal the 50 Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, development); Allco Comments at 9–11 (without market accurately—as accurately, that is, as current 400 (5th Cir. 2014). the ability to obtain a fixed long-term forecasted prices can anticipate future costs. Price volatility 51 Power Resource Group, Inc. v. Public Utility rate, QF solar energy development will not exist). alone, therefore, cannot provide a ground for Comm’n of Texas, 422 F.3d 231, (5th Cir. 2005). 53 See NOPR, 168 FERC ¶ 61,184 at P 66. overturning a marginal cost rate structure.’’).
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construct.57 This represents important energy costs that an electric utility will of QFs. For example, the Idaho evidence that QFs likewise should be recover from its retail customers at an Commission has indicated that its able to obtain financing under the same incremental level would be the same current policy of limiting QF contracts rate construct, especially considering energy costs that are used in to two years is based on its concern that QFs benefit from the statutory right determining the electric utilities’ about fixed QF rates, and that the ability to sell pursuant to a mandatory avoided costs that will, in turn, set the to require variable energy rates could purchase obligation while non-QFs do as-available avoided cost rates to be lead to longer contract terms.61 We not have that right.58 charged by QFs. expect that these changes could D. The Rate Changes Implemented by 41. Thus, QF variable energy rate/ facilitate QF development in states This Final Rule Put QF Rates on the fixed capacity rate contracts not only where little QF capacity has been added Same Footing as Electric Utility Rates would be structured similarly to the to date. standard wholesale power sales and Are Not Discriminatory 44. Further, commenters’ claims about agreements used in the electric industry, lack of QF development outside of the 39. The fact that variable energy rate/ but application of traditional cost-based fixed capacity rate contracts are ratemaking principles to sales by QFs is RTO/ISO markets appear to be standard in the electric industry also exactly what would be required in order overstated. For example, the most recent explains why, contrary to assertions to provide QFs with the same data from the U.S. Energy Information made by a number of commenters, guaranteed cost recovery that applies to Administration (EIA) on the total allowing states to require such contracts electric utilities. Guaranteeing QFs cost amount of wind and solar QF capacity 59 for QFs is not discriminatory. QFs recovery is fundamentally inconsistent in each state shows that 9 of the 20 selling at wholesale pursuant to such with PURPA, which sets the rate the QF states with the greatest combined wind contracts will be selling under the same is paid at the purchasing electric and solar QF capacity are located rate structure employed in the power utility’s avoided cost, not at the QF’s outside of the RTO/ISO markets.62 Of sales contracts typically used elsewhere cost. Such a rate structure is not these 9 states, three are located in the in the electric industry, including by discriminatory. Southeast—the region asserted by public utilities when they make sales at commenters to be the most hostile to wholesale to each other, and QFs will be E. The PURPA Compliance Issues PURPA—including North Carolina, doing so at full avoided cost rates—the Raised by Some Commenters Are which has the highest total amount of highest rates permitted under PURPA. Outside the Scope of This Rulemaking wind and solar QF capacity in the 40. It is true that electric utilities with Proceeding country.63 Other states in the top 20 franchised service territories that make 42. Finally, several commenters assert include Idaho—with the fourth most sales at retail are often effectively that certain states located outside of wind and solar QF capacity—and guaranteed the recovery of their energy RTO/ISO markets are dominated by Oregon,64 two states that have been costs in their retail rates by their state large integrated public utilities whose criticized as being hostile to PURPA. regulatory authorities—provided that state commissions do not implement EIA data also shows that five of the top such costs are prudently incurred. But PURPA correctly.60 They argue that, as 10 states in terms of renewable QF the electric utilities’ retail rates are cost- a consequence, there is little capacity additions from 2008–17 are based, such that their rates are set based development of independent located outside of the RTO/ISO markets, on costs they actually incur to produce generation—QFs or otherwise—in those including North Carolina (with the most electricity for their customers. states. They assert that the proposals in renewable QF capacity additions), Importantly, moreover, the incremental the NOPR might be appropriate in states Idaho, Georgia, and Oregon,65 each of with RTO/ISO markets that are subject 57 EIA, Form EIA–860 detailed data with previous form data Early Release (EIA–860A/860B) (June 2, to significant competition, but would 61 See Idaho Commission Comments at 4 (stating 2020), https://www.eia.gov/electricity/data/eia860/ only make matters worse outside of the that an energy rate established at the time of shows 77.6 GW of operational QF nameplate RTO/ISO markets. contract formation that provides for ‘‘revisions to the energy rate at regular intervals, consistent with, capacity and 450.453.5 GW of operational non-QF 43. As explained above, several independent power producer nameplate capacity as for example, a purchasing electric utility’s of end 2019. changes implemented by this final rule [integrated resource plan] to reflect updated 58 Some commenters raise concerns with the ensure that the PURPA Regulations will avoided cost calculations’’ would allow states to Commission’s reliance on the financing of non-QF continue to encourage QF development. consider longer term contracts without putting ratepayers at risk). generation facilities to support the conclusion that Other changes, such as allowing QFs could obtain financing with variable energy 62 EIA, Form EIA–860 detailed data with previous rate contracts, pointing out that the Commission has variable energy rates in QF contracts, form data (EIA–860A/860B) Release date (June 2, not identified any QFs that have obtained financing not only ensure the PURPA Regulations 2020), https://www.eia.gov/electricity/data/eia860/. under this structure. The reason for this, however, are consistent with PURPA but also The top 20 states with combined QF solar and wind is that QFs typically do not employ this structure address some states’ primary concern nameplate capacity in 2018 were: (1) California, because currently they are entitled to a fixed energy Texas, Minnesota, Oklahoma, Massachusetts, New rate/fixed capacity rate construct. Accordingly, with the current PURPA Regulations, Mexico, Nebraska, New Jersey, Michigan, New evidence regarding the financing of similar types of i.e., the Commission’s now allowing York, Illinois (all fully or partially inside RTOs/ independently owned generation projects by non- states the flexibility to set variable ISOs); and (2) North Carolina, Idaho, Utah, South QFs using such a construct constitutes the best and energy rates could mitigate the states’ Carolina, Georgia, Oregon, Colorado, Arizona, most relevant evidence of how it would affect QF Wyoming(outside of RTOs/ISOs). We note that financing. reluctance to implement PURPA in a some of these states are located in both RTO/ISO 59 See, e.g., EPSA Comments at 9 (‘‘The NOPR way that better encourages development and non-RTO/ISO regions. avoided rate proposal must therefore be rejected 63 Id. We note that five of the 20 states with the because it puts QFs at a disadvantage to utility- 60 American Dams Comments at 5–6; Biological most solar capacity—perhaps a better measure of owned generation, in violation of the non- Diversity Comments at 13; CA Cogeneration the Southeast Region’s PURPA compliance given discrimination mandate under PURPA.’’); Public Comments at 6–7; Con Edison Comments at 2; the lack of wind resources in this region—are Interest Organizations Comments at 51 (‘‘[L]imiting ELCON Comments at 7–8; EPSA Comments at 1– located in the Southeast. QFs to contracts providing no price certainty for 2; IdaHydro Comments at 5; NIPPC, CREA, REC, 64 Id. energy values, while non-QF generation regularly and OSEIA Comments at 14–15; Solar Energy 65 See EIA, PURPA-qualifying capacity increases, obtains fixed price contracts and utility-owned Industries Comments at 15–20, 24; SC Solar but it’s still a small portion of added renewables generation receives guaranteed cost recovery from Alliance Comments at 3–4; Two Dot Wind (Aug. 16, 2018), https://www.eia.gov/ captive ratepayers, constitutes discrimination.’’). Comments at 14–19. todayinenergy/detail.php?id=36912.
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which commenters have identified as the fossil fuels that were then for sales by QFs equal to the purchasing being hostile to PURPA. commonly used in the production of electric utilities’ avoided costs.72 The 45. But whether any individual state electricity. Commission also directed that electric has or has not failed to implement the 48. To accomplish this goal, PURPA utilities provide backup electric energy PURPA Regulations properly is not an section 210(a) directs that the to QFs on a non-discriminatory basis issue for this final rule, which Commission ‘‘prescribe, and from time and at just and reasonable rates,73 and implements changes to the PURPA to time thereafter revise, such rules as that electric utilities interconnect with Regulations but does not modify [the Commission] determines necessary QFs.74 Pursuant to section 210(e) of Commission’s rules for addressing to encourage cogeneration and small PURPA,75 the Commission further claims that states are not complying power production,’’ 69 including rules provided exemptions from many with the Commission’s existing PURPA requiring electric utilities to offer to sell provisions of the FPA and state laws Regulations. We promulgate this final electricity to, and purchase electricity governing utility rates and financial rule based on the expectation that the from, QFs. PURPA section 210(f) organization.76 states will fulfill their legal obligation to required each state regulatory authority implement the Commission’s PURPA and nonregulated electric utility B. Circumstances Leading to the Commission’s Re-Evaluation of the Regulations as revised.66 (together, states) to implement the 46. Further, although Congress Commission’s rules. PURPA Regulations and the Issuance of required the Commission to establish 49. In 1980, the Commission issued the NOPR the general parameters for establishing Order Nos. 69 and 70, which 51. In the NOPR, the Commission QF rates, Congress delegated to the promulgated the required rules that, described three important changes in states—not the Commission—the role to with limited exceptions, remain in the circumstances that had originally set QF rates.67 To the extent that any effect today.70 The Commission prompted Congress to pass PURPA in entity believes a state is failing to explained that, at the time of the 1978. First, as the Commission implement the Commission’s PURPA passage of PURPA, cogenerators and explained, the United States has seen an Regulations, PURPA section 210(h) small power producers faced three unprecedented change in the dynamics provides that entity an avenue to seek major obstacles: (1) Electric utilities of the natural gas market and the relief.68 were not required to purchase these relevant supply and demand.77 Led by generators’ electric output or to make advancements in production III. Background purchases at an appropriate rate; (2) technologies, primarily in accessing A. Passage of PURPA in 1978 and the electric utilities sometimes charged shale reserves, natural gas supplies Commission’s Promulgation of Its discriminatorily high rates for backup increased dramatically.78 Further, the PURPA Regulations in 1980 services; and (3) cogenerators and small EIA forecasted continued supply growth power producers ran the risk of being over the next 25 years.79 In short, as the 47. PURPA was enacted in 1978 as considered public utilities themselves part of a package of legislative proposals Commission found in issuing the NOPR, and thus being subject to state and there no longer are shortages of natural intended to reduce the country’s federal regulation as utilities.71 Further, dependence on oil and natural gas, gas supply. at that time, there was no open access 52. Second, the Commission found which at the time were in short supply transmission and little competition in and subject to dramatic price increases. that, since 1978, the outlook for the electric wholesale markets. Electric development of alternatives to natural PURPA sets forth a framework to utilities were vertically-integrated and encourage the development of gas and oil-fired generation resources, held dominant market positions. As a such as renewable resources, has alternative generation resources that do result of their control over transmission changed equally dramatically.80 The not rely on traditional fossil fuels (i.e., access, it was virtually impossible for once-nascent renewables industry has oil, natural gas and coal) and third parties—whether independent grown and matured over the past 40 cogeneration facilities that make more power producers or other electric efficient use of the heat produced from utilities—to compete with them to make 72 18 CFR 292.304(a)(2); see API, 461 U.S. at 412– sales of electricity. 18. 66 16 U.S.C. 824a–3(f)(1). The same obligation to 50. Given the Congressional mandate 73 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at implement the Commission’s PURPA Regulations described above, the Commission 30,887–90; see also 18 CFR 292.305. as revised, we note, is imposed on nonregulated 74 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at electric utilities. 16 U.S.C. 824–3(f)(2). determined in Order No. 69 to set rates 30,874; see also 18 CFR 292.303(c). 67 See 16 U.S.C. 824a–3(f)(1) (‘‘[E]ach State 75 16 U.S.C. 824a–3(e). regulatory authority shall, after notice and 69 16 U.S.C. 824a–3(a). 76 opportunity for public hearing, implement such 70 Order No. 69, FERC Stats. & Regs. ¶ 30,128; Order No. 69, FERC Stats. & Regs. ¶ 30,128 at rule (or revised rule) for each electric utility for Small Power Production and Cogeneration 30,864; accord id. at 30,863, 30,894–96; see also 18 which it has ratemaking authority.’’). Facilities—Qualifying Status, Order No. 70, FERC CFR 292.601–.602. 77 68 If the Commission, in response to a petition for Stats. & Regs. ¶ 30,134 (cross-referenced at 10 FERC NOPR, 168 FERC ¶ 61,184 at P 19. enforcement under PURPA section 210(h) against a ¶ 61,230), orders on reh’g, Order No. 70–A, FERC 78 Domestic natural gas production, which state regulatory authority, chooses not to initiate an Stats. & Regs. ¶ 30,159 (cross-referenced at 11 FERC appeared to peak in the early 1970s at 21.7 Tcf per enforcement action within 60 days of the filing of ¶ 61,119) and FERC Stats. & Regs. ¶ 30,160 (cross- year, increased from 18.1 Tcf in 2005 to 30.4 Tcf the petition, the statute authorizes the petitioning referenced at 11 FERC ¶ 61,166), order on reh’g, in 2018. EIA, Monthly Energy Review (Aug. 27, electric utility or QF to itself initiate a suit directly Order No. 70–B, FERC Stats. & Regs. ¶ 30,176 2019) (in table 4.1 see column labeled ‘‘Natural Gas against the state in U.S. District Court. 16 U.S.C. (cross-referenced at 12 FERC ¶ 61,128), order on Production (Dry)’’ on the Annual tab of the xls 824a–3(h)(2)(B). The same statutory provision reh’g, FERC Stats. & Regs. ¶ 30,192 (1980) (cross- version), https://www.eia.gov/totalenergy/data/ similarly governs petitions for enforcement against referenced at 12 FERC ¶ 61,306), amending monthly/. nonregulated electric utilities. Id. PURPA section regulations, Order No. 70–D, FERC Stats. & Regs. 79 EIA’s forecast showed supplies increasing to 210(g) also provides for review of state regulatory ¶ 30,234 (cross-referenced at 14 FERC ¶ 61,076), nearly 40 Tcf by 2035 and 43 Tcf by 2050. EIA, authorities and nonregulated electric utilities in amending regulations, Order No. 70–E, FERC Stats. Annual Energy Outlook 2018, at tbl.13 (Jan. 24, state fora. 16 U.S.C. 824a–3(g). The Commission’s & Regs. ¶ 30,274 (1981) (cross-referenced at 15 2019) (in table see row labeled ‘‘Dry Gas policies with respect to PURPA enforcement are FERC ¶ 61,281). Production’’ under the reference case) (Annual more fully set out in its Policy Statement Regarding 71 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at Energy Outlook 2019), https://www.eia.gov/ the Commission’s Enforcement Role Under Section 30,863. See infra P 78 & note 112 (addressing how outlooks/aeo/data/browser/#/?id=13- 210 of the Public Utility Regulatory Policies Act of the PURPA Regulations as revised continue to AEO2019&cases=ref2018&sourcekey=0. 1978, 23 FERC ¶ 61,304 (1983). address these obstacles). 80 NOPR, 168 FERC ¶ 61,184 at P 20.
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years and has only accelerated addition, RTOs and ISOs have in the NOPR, and the comments subsequent to the Energy Policy Act of developed competitive wholesale submitted in response to the NOPR. 2005’s amendment of PURPA. The electric markets that serve roughly two- These changes, including modifications Commission noted that the cost of thirds of electricity consumers in the to the proposals made in the NOPR, are building renewable facilities has United States.86 summarized below.91 decreased substantially to the point that 54. In PURPA section 210(a), Congress 57. First, we grant states the flexibility the cost of renewable resources is now directed not only that the Commission to require that energy rates (but not or is shortly expected to approach the prescribe regulations, but that the capacity rates) in QF power sales cost of traditional electric generation.81 Commission revise those regulations contracts and other LEOs 92 vary in The Commission also recognized that ‘‘from time to time thereafter.’’ 87 The accordance with changes in the renewable resources (including hydro) Commission determined in the NOPR purchasing electric utility’s as-available provide a significant share of the that, in light of these dramatic changes avoided costs at the time the energy is electricity currently generated in the in circumstances since the passage of delivered. Under this change, if a state United States,82 that most renewable PURPA, it was appropriate to review the exercises this flexibility, a QF no longer resources today are not QFs,83 and that PURPA Regulations to determine would have the ability to elect to have 65 percent of capacity additions in 2019 whether changes to those regulations its energy rate be fixed, but would were expected to come from renewable were warranted consistent with our continue to be entitled to a fixed resources.84 statutory mandate.88 capacity rate for the term of the contract 53. Third, the introduction of QFs as 55. After identifying these three or LEO.93 competing sources of electricity to the important changes in the industry that 58. Second, we grant states additional incumbent electric utilities has led to have taken place since 1980, we further flexibility to allow QFs to have a fixed the development of significant non-QF identified evidence demonstrating that energy rate, but to provide that such independent power production.85 In overestimations of avoided cost have state-authorized fixed energy rate can be not been balanced by underestimations, based on projected energy prices during 81 Id. (citing EIA, Updated Capital Cost Estimates and that this trend may persist with the the term of a QF’s contract based on the for Utility Scale Electricity Generating Plants, general decline in the cost of anticipated dates of delivery. https://www.eia.gov/analysis/studies/powerplants/ electricity.89 59. Third, we grant states flexibility to capitalcost/; EIA, Levelized Cost and Levelized Avoided Cost of New Generation Resources in the set ‘‘as-available’’ QF energy rates as C. Summary of Changes to the PURPA follows: We are establishing a rebuttal Annual Energy Outlook 2019 (Feb. 2019), https:// Regulations Implemented by This Final www.eia.gov/outlooks/aeo/pdf/electricity_ presumption, rather than a per se rule generation.pdf; Lawrence Berkeley National Lab, Rule as proposed in the NOPR, that the LMP Wind Technologies Market Report, https:// emp.lbl.gov/wind-technologies-market-report/). 56. We now are revising our PURPA established in the organized electric However, EIA has cautioned against directly Regulations based on the record of this markets defined in 18 CFR 292.309(e), comparing the costs of dispatchable and proceeding, including comments (f), or (g) represents the as-available nondispatchable generation: submitted in the technical conference in avoided costs of electric utilities located Because load must be continuously balanced, Docket No. AD16–16–000 (Technical in these markets.94 So long as this generating units with the capability to vary output 90 to follow demand (dispatchable technologies) Conference), the record evidence cited generally have more value to a system than less nondiscriminatory access to competitive organized flexible units (nondispatchable technologies) such 1.5 TWh in 2005, to 8.7 TWh in 2012, and to 10.6 wholesale markets. as those using intermittent resources to operate. The TWh in 2018. In the Southeast region of the 91 In its post-NOPR comments, Bloom Energy LCOE values for dispatchable and non-dispatchable country, non-utility renewable resources saw a requested that the Commission ‘‘[u]pdate the technologies are listed separately in the tables lesser increase from 2.6 TWh in 2005 to 2.7 TWh definition of ‘useful thermal energy output’ of a because comparing them must be done carefully. in 2012, but expanded to 6.5 TWh in 2018. NOPR, topping-cycle cogeneration facility to reflect the EIA, Levelized Cost and Levelized Avoided Cost 168 FERC ¶ 61,184 at P 27 (citing data taken from commercialization of solid oxide fuel cells that of New Generation Resources in the Annual Energy EIA’s Electricity Data Browser, www.eia.gov/ produce heat for the industrial purpose of Outlook 2019, at 2 (Feb. 2019), https://www.eia.gov/ electricity/data/browser (select net generation, other producing hydrogen, a fuel that the fuel cells use outlooks/archive/aeo19/pdf/electricity_ renewables, independent power producers)). to generate electricity.’’ Bloom Energy Comments at generation.pdf. 86 ISO/RTO Council, The Role of ISOs and RTOs, 2. We do not take action on this request in this 82 NOPR, 168 FERC ¶ 61,184 at P 21 (citing EIA, https://isorto.org. proceeding because we do not view this proposal August 2019 Monthly Energy Review at Figure 7.2a, 87 16 U.S.C. 824a–3(a). as a logical outgrowth of the NOPR. https://www.eia.gov/totalenergy/data/monthly; 88 16 U.S.C. 824a–3(b). 92 The Commission has held that a LEO can take Office of Energy Projects, Energy Infrastructure 89 See NOPR, 168 FERC ¶ 61,184 at P 30. effect before a contract is executed and may not Update For July 2019 at 4 (July 2019), https:// Evidence submitted in response to the NOPR shows necessarily be incorporated into a contract. JD Wind www.ferc.gov/legal/staff-reports/2019/july-energy- that, as a result, customers may be paying more 1, LLC, 129 FERC ¶ 61,148, at P 25 (2009), reh’g infrastructure.pdf). than avoided costs. See infra PP 265 (‘‘Duke Energy denied, 130 FERC ¶ 61,127 (2010) (‘‘[A] QF, by 83 NOPR, 168 FERC ¶ 61,184 at P 22. claims that, among the factors contributing to this committing itself to sell to an electric utility, also 84 Id. (citing EIA, Today in Energy, New electric overpayment of $2.26 billion for the remainder of commits the electric utility to buy from the QF; generating capacity in 2019 will come from these QF contracts, the primary factor has been the these commitments result either in contracts or in renewables and natural gas (Jan. 10, 2019), https:// requirement to offer fixed avoided cost energy rates non-contractual, but binding, legally enforceable www.eia.gov/todayinenergy/detail.php?id=37952 during a period of rapidly declining energy obligations.’’). For ease of reference, however, (Form EIA–860M, Preliminary Monthly Electric prices’’), 268 (‘‘Massachusetts DPU argues that a 10- references herein to a contract also are intended to Generator Inventory). year, fixed energy rate based on current New refer to a LEO that is not incorporated into a 85 NOPR, 168 FERC ¶ 61,184 at P 25. The England wholesale energy market prices is highly contract. Commission cited to data showing that that net likely to diverge from actual energy market prices 93 Moreover, any state—whether located in generation of energy by non-utility owned over the ten-year contract term and could regions where energy prices are competitively based renewable resources in the United States escalated significantly harm ratepayers’’). or whether located in regions where they are not— from 51.7 TWh in 2005 when EPAct 2005 was 90 Supplemental Notice of Technical Conference, would be permitted to require that the fixed energy passed, to 340 TWh in 2018. This also included Implementation Issues Under the Public Utility rate established at the time of the contract include significant growth in non-utility renewable Regulatory Policies Act of 1978, Docket No. AD16– provisions, established at the time the contract is resources in states outside of RTOs. For example, 16–000 (May 9, 2016). The Technical Conference established, providing for revisions to the energy net generation by non-utility renewable resources in covered such issues as: (1) Various methods for rate at regular intervals, consistent with, for the region defined by EIA as the Mountain State calculating avoided cost; (2) the obligation to example, a purchasing electric utility’s integrated region increased from 3.6 TWh in 2005 to 19.5 TWh purchase pursuant to a LEO; (3) application of the resource plan, to reflect updated avoided cost in 2012, and to 42.5 TWh in 2018. Pacific one-mile rule; and (4) the rebuttable presumption calculations. Northwest (Oregon and Washington) net non-utility the Commission has adopted under PURPA section 94 These are the markets operated by generation from renewable resources increased from 210(m) that QFs 20 MW and below do not have Midcontinent Independent System Operator, Inc.
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presumption is not rebutted, a state can recertification (whether a self- emphasize that these changes are at its option establish as-available recertification or an application for effective prospectively for new contracts energy avoided cost rates for QFs selling Commission recertification) to defend or LEOs and for new facility to such electric utilities at the LMP. preemptively against subsequent certifications and recertifications filed With respect to QFs selling to electric challenges, by identifying factors on or after the effective date of this final utilities located outside of the organized affirmatively demonstrating that its rule; we do not by this final rule permit electric markets defined in 18 CFR facility is indeed at a separate site from disturbance of existing contracts or 292.309(e), (f), or (g), states have the other affiliated small power production LEOs or existing facility certifications. option to set as-available energy avoided qualifying facilities. We further add a cost rates at competitive prices from definition of the term ‘‘electrical IV. Discussion liquid market hubs or calculated from a generating equipment’’ to the PURPA A. General Legal Standards Under formula based on natural gas price Regulations to clarify how the distance PURPA indices and specified heat rates, between facilities is to be calculated. 67. Several comments were submitted 63. Seventh, we allow an entity to provided that the states first determine regarding: (1) The requirement in that such prices represent the challenge an initial self-certification or PURPA section 210(a) that ‘‘the purchasing electric utilities’ avoided self-recertification without being Commission shall prescribe, and from costs. The states would have the required to file a separate petition for time to time thereafter revise, such rules flexibility to choose to adopt one or declaratory order and to pay the as it determines necessary to encourage more of these options or to continue associated filing fee. However, we cogeneration and small power setting QF rates under the standards clarify in this final rule that such production’’; and (2) the requirement in long established in the PURPA protests may be made to new PURPA section 210(b) that rates paid by Regulations. certifications (both self-certifications 60. Fourth, states would have the and applications for Commission purchasing utilities to QFs ‘‘shall not flexibility to set energy and capacity certification) but to only self- discriminate against qualifying rates pursuant to a competitive recertifications and applications for cogenerators or qualifying small power 95 solicitation process conducted pursuant Commission recertifications making producers.’’ In addition, a claim was to transparent and non-discriminatory substantive changes to the existing made that the Commission has procedures consistent with the certification. unlawfully delegated its authority to the Commission’s Allegheny standard, 64. Eighth, we revise the states. These comments apply to several described in this final rule. Commission’s regulations implementing of the revisions implemented by this 61. Fifth, we do not adopt the PURPA section 210(m), which provide final rule and therefore are discussed proposed rule permitting states with for the termination of an electric prior to the discussion of specific retail competition to allow relief from utility’s obligation to purchase from a revisions implemented herein. the purchase obligation. We instead QF with nondiscriminatory access to 1. Encouragement of QFs clarify in this final rule that the certain markets. Currently, there is a Commission’s existing PURPA rebuttable presumption that QFs with a a. Comments Regulations already require that states, net capacity at or below 20 MW do not 68. Commenters make two general to the extent practicable, must account have nondiscriminatory access to such arguments regarding the statutory for reduced loads in setting QF capacity markets. We update the rebuttable requirement that the Commission’s rates. presumption for small power PURPA Regulations should encourage 62. Sixth, we modify the production facilities (but not QFs. First, they note that the statutory Commission’s ‘‘one-mile rule’’ for cogeneration facilities) from 20 MW to requirement that the PURPA determining whether generation 5 MW and, in this final rule, revise the Regulations encourage QFs is facilities are considered to be at the regulations to include examples of mandatory and that the Commission has same site for purposes of determining factors, among others, that QFs may no discretion to determine that such qualification as a qualifying small argue show that they lack encouragement no longer is necessary. power production facility. Specifically, nondiscriminatory access to such Harvard Electricity Law states that we allow electric utilities, state markets. ‘‘Congress’[s] mandate to encourage QFs regulatory authorities, and other 65. Finally, we clarify that a QF must is not contingent on industry conditions interested parties to show that affiliated demonstrate commercial viability and a and does not expire.’’ 96 Further, they small power production facilities that financial commitment to construct its assert, ‘‘[t]he Commission may not use the same energy resource and are facility pursuant to objective and overwrite Congress’s instruction to issue more than one mile apart and less than reasonable state-determined criteria rules that it ‘determines necessary to 10 miles apart actually are at the same before the QF is entitled to a contract or encourage cogeneration and small site (with distances one mile or less LEO. States may not impose any power production.’ ’’ 97 Public Interest apart still irrebuttably at the same site, requirements for a LEO other than a Organizations similarly object to the and distances 10 miles or more apart showing of commercial viability and a NOPR as violating the encouragement irrebuttably at separate sites). We also financial commitment to construct the requirement because, they assert, the allow a small power production facility facility. We also clarify in this final rule NOPR ‘‘reflect[s] a belief that the current seeking QF status to provide further that, to the extent that the permitting rules support too much QF development information in its certification (whether factor is relied upon, a QF need only and a desire to reduce the incentives in a self-certification or an application for show that it has applied for all required current rules for QF development.’’ 98 Commission certification) or permits and paid all applicable fees, and NIPPC, CREA, REC, and OSEIA assert not that it has obtained such permits. that ‘‘[t]he Commission cannot take it (MISO); PJM Interconnection, L.L.C. (PJM); ISO 66. As explained in detail in the New England Inc. (ISO–NE); New York relevant sections below, these changes 95 Independent System Operator, Inc. (NYISO); 16 U.S.C. 824a–3(a), (b). Electric Reliability Council of Texas (ERCOT); will enable the Commission to continue 96 Harvard Electricity Law Comments at 1. California Independent System Operator, Inc. to fulfill its statutory obligations under 97 Id. at 4 (quoting PURPA section 210(a)). (CAISO); and Southwest Power Pool, Inc. (SPP). sections 201 and 210 of PURPA. We 98 Public Interest Organizations Comments at 10.
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upon itself to change the underlying described the reason for the avoided 76. Finally, we disagree with any policy directives to encourage QFs.’’ 99 cost cap on QF rates. ‘‘The provisions of suggestion that a rule originally adopted 69. Public Interest Organizations this section are not intended to require in 1980 cannot be changed once advance a second general argument the rate payers of a utility to subsidize adopted, or that our revised regulations based on the encouragement cogenerators or small power cannot be different in how they requirement, arguing that ‘‘[t]o amend produc[er]s.’’ 104 encourage QFs than the regulations the the rules, the Commission must first 73. Therefore, PURPA section 210(b) Commission issued in 1980.109 For one determine that the actual changes it imposes an important limit on the thing, as explained above, PURPA itself proposes increase development and Commission’s ability to encourage QFs includes certain limitations on the utilization of QFs.’’ 100 Similarly, Allco by imposing an upper boundary on the Commission’s ability to encourage QFs, attacks the NOPR on the grounds that rates at which QFs may require electric and a provision in the final rule ‘‘the proposed changes do not encourage utilities to purchase their electric intended to comply with these statutory QF generation.’’ 101 energy. The Commission cannot require limitations cannot be found to violate b. Commission Determination QF rates that exceed the avoided costs PURPA even if such a provision of the purchasing electric utility.105 individually does not affirmatively 70. We agree with commenters that encourage QFs to the same degree now PURPA does not provide discretion to 74. Second, another way in which Congress limited the Commission’s as in 1980. As explained herein, we do the Commission to determine whether not seek, through this final rule, to cease QFs should be encouraged. That is a ability to encourage QFs was to define small power production facilities, the encouraging the development of QFs. determination left to Congress, and we Instead, this final rule is intended to have not premised this final rule on a PURPA category applicable to almost all renewable resources that wish to be ensure that the Commission is belief that QFs should not be compliant with the statute in how it encouraged. However, the requirement QFs, as having ‘‘a power production capacity which, together with any other does encourage the development of QFs. that the Commission promulgate In doing so, the Commission may end regulations necessary to encourage QFs facilities located at the same site (as determined by the Commission), is not up encouraging QF development is not unbounded. Instead, as noted differently from the current PURPA greater than 80 megawatts.’’ 106 The briefly earlier, there are statutory Regulations, but the Commission’s statutory 80 MW limitation, as well as limitations on the extent that the regulations continue to encourage QF any definition of ‘‘the same site’’ that PURPA Regulations can encourage QFs. development, as contemplated by may be established by the Commission, 71. First, PURPA section 210(b) sets PURPA. out standards with which the will of necessity have an effect on the 77. Many of the commenters’ Commission must comply in setting QF encouragement of QFs, because it will assertions seem to be based on a reading rates. The last sentence of PURPA limit the capacity of QFs both ab initio of the statute that requires that every section 210(b) sets out an upper limit on and also for those located at the same individual change made to the PURPA such rates. ‘‘No such rule prescribed site to 80 MW. Regulations in isolation must under subsection (a) shall provide for a 75. Third, Congress amended PURPA individually encourage QFs rate which exceeds the incremental cost section 210 to add section 210(m), notwithstanding the statute’s to the electric utility of alternative which provides for termination of the provisions. But, as discussed above, electric energy.’’ 102 requirement that an electric utility enter Congress established boundaries in 72. If there were any doubt from the into a new obligation or contract to PURPA that must be considered, such as statutory language that incremental purchase from a QF if the QF has the ‘‘cap’’ on incremental costs; just and costs (avoided costs) are intended to be nondiscriminatory access to certain reasonable rates for electric customers; a hard cap on QF rates, such doubt is defined types of markets.107 We the 80 MW limit; and whether QFs have dispelled by the Conference Report to interpret this amendment as reflecting nondiscriminatory access to markets. PURPA, which provided: ‘‘This Congress’s judgment that these markets Furthermore, the statutory requirement limitation on the rates which may be provide adequate encouragement for to encourage QF development applies to required in purchasing from a those QFs having nondiscriminatory the PURPA Regulations—‘‘such rules as cogenerator or small power producer is access to such markets. To the extent [the Commission] determines meant to act as an upper limit on the that a party asserts that the termination necessary’’—as a whole.110 price at which utilities can be required of the purchase obligation for QFs with 78. In that regard, we find that the under this section to purchase electric nondiscriminatory access to these Commission’s PURPA Regulations as a energy.’’ 103 The Conference Report also markets discourages QFs, that party’s whole when modified by this final rule argument is not with the Commission, continue to encourage the development 99 NIPPC, CREA, REC, and OSEIA Comments at but rather with Congress. PURPA of QFs, consistent with PURPA. The 29. section 210(m) obligates the PURPA Regulations in particular, 100 Public Interest Organizations Comments at 11. Commission to grant any request to continue to require that QF rates be set 101 Allco Comments at 8. terminate a utility’s obligation to at full avoided costs, a provision the 102 Furthermore, PURPA section 210(b)(1) requires that QF rates be ‘‘just and reasonable to the purchase from a QF with Supreme Court described as electric consumers of the electric utility and in the nondiscriminatory access to the ‘‘provid[ing] the maximum incentive for public interest.’’ 16 U.S.C. 824a–3(b)(1). Although specified markets.108 the development of cogeneration and the exact scope of the ‘‘just and reasonable to the small power production.’’ 111 In electric consumers’’ criterion has never been 104 addressed explicitly, the Supreme Court held in API Id. (emphasis added). addition, this final rule retains that the requirement in the PURPA Regulations that 105 16 U.S.C. 824a–3(b)(1). provisions of the PURPA Regulations QF rates be set at full avoided costs does not violate 106 16 U.S.C. 796(17)(A)(ii). adopted in 1980 that provide this criterion. API, 461 U.S. at 415–16. This ‘‘just 107 See 16 U.S.C. 824a–3(m). encouragement through other means and reasonable to the electric consumers’’ criterion 108 Id. (‘‘[N]o electric utility shall be required to likely would be violated if the Commission were to enter into a new contract or obligation to purchase allow a rate above the purchasing electric utility’s electric energy from a [QF] if the Commission finds 109 See 18 U.S.C. 824a–3(a). avoided costs. that the [QF] has nondiscriminatory access to 110 See 16 U.S.C. 824a–3(a) (emphasis added). 103 Conf. Rep. at 98 (emphasis added). [specified markets].’’). 111 API, 461 U.S. at 418.
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recognized by the Supreme Court in that certain aspects of the NOPR are even if it were possible to posit a FERC v. Miss.112 (e.g., certain regulatory discriminatory, including those situation where the payment of a full relief,113 interconnection provisions,114 provisions of the NOPR regarding the avoided cost rate to a QF somehow were and requirements that utilities sell use of LMPs and other competitive rates discriminatory, the Commission power to QFs that will enable QFs to to set as-available energy rates,120 to nevertheless would be prohibited by continue operations).115 Moreover, allow for variable energy rates in QF PURPA section 210(b) from requiring a several of the changes implemented by contracts,121 and to allow avoided costs rate to be paid to the QF that is above this final rule also provide additional to be set through competitive the full avoided costs of the purchasing encouragement for QFs as described in solicitations (i.e., requests for proposals electric utility. more detail below. (RFPs)).122 84. For the same reasons, Public Interest Organizations are mistaken 2. Discrimination b. Commission Determination when they assert that, without the a. Comments 82. As an initial matter, we agree with modifiers ‘‘unreasonable’’ or ‘‘undue,’’ 79. Commenters opposing the EPSA that the statutory requirement in any difference in price for the same proposals in the NOPR also cite to the PURPA section 210(b)(1) that QF rates commodity violates PURPA.126 So long statutory requirement in PURPA section ‘‘shall not discriminate against’’ QFs is as a QF’s rate is set at the purchasing 210(b)(1) that QF rates ‘‘shall not more restrictive than the FPA’s utility’s full avoided cost, the QF’s rate discriminate against’’ QFs. EPSA asserts prohibition against ’unduly should be the same as the rate the discriminatory’ rates.123 However, the that ‘‘[n]otably, this standard is more purchasing utility otherwise would be avoided cost cap on QF rates that limits restrictive than the [FPA’s] prohibition paying or the cost it would be incurring, the Commission’s ability to encourage against ‘unduly discriminatory’ and such a rate would not be QFs, discussed above, also applies to rates.’’ 116 Public Interest Organizations discriminatory. And, in any event, as the Commission’s ability to address state that ‘‘[i]n other statutes, noted above, the Commission cannot these claims of discrimination under prohibiting price discrimination require a rate that is any higher. PURPA. PURPA section 210(b) makes without the modifiers ‘unreasonable’ or 85. With respect to comparisons clear that ‘‘[n]o such rule prescribed ‘undue,’ means any difference in price between QFs, with no guarantee of cost under subsection (a) shall provide for a for the same commodity.’’ 117 recovery, and electric utilities, which if rate which exceeds the incremental cost 80. In discussing the requirement that they have a franchised service territory to the electric utility of alternative and sell at retail in that territory are QF rates not be discriminatory, some 124 electric energy.’’ effectively guaranteed the opportunity commenters compare the treatment 83. We are retaining in this final rule to seek to recover prudently-incurred afforded to QFs under the NOPR with the requirement that QF rates be set at costs in their retail rates, we observe the rate treatment applicable to public a purchasing utility’s full avoided costs. that Congress acknowledged this utilities. For example, NIPPC, CREA, The Supreme Court held in API that difference when enacting PURPA. As REC, and OSEIA point out that ‘‘the full-avoided-cost rule plainly emphasized in the PURPA Conference ‘‘[u]tilities can rate-base long-term satisfies the nondiscrimination Report: investments, thereby ensuring that they requirement.’’ 125 Although the Court can recover their capital investments did not provide a detailed explanation The conferees recognize that cogenerators plus an authorized return, and then also for this holding, the reasoning is and small power producers are different from recover their actual operating costs apparent. If the purchasing utility is electric utilities, not being guaranteed a rate under traditional cost-of-service paying the same rate to a QF for power of return on their activities generally or on ratemaking.’’ 118 By contrast, Harvard the activities vis a vis the sale of power to that it otherwise would have paid for the utility and whose risk in proceeding Electricity Law asserts, ‘‘QFs do not incremental power, by definition such a have the same ability that the electric forward in the cogeneration or small power rate could not be discriminatory. But production enterprise is not guaranteed to be utilities have to ‘rate base’ their facilities recoverable.127 and, thereby, guarantee capital 120 See, e.g., Public Interest Organizations recovery.’’ 119 Comments at 64 (stating that the use of competitive 86. In recognizing this difference and 81. Based on this difference between prices to set as-available energy avoided cost rates yet not seeking to eliminate it, Congress utilities and QFs, commenters allege is discriminatory because non-QF generators are not also made clear its intent not to treat limited to competitive prices and utilities can, and QFs like electric utilities in this regard: regularly do, pay effective prices for energy that 112 456 U.S. 742, 750–51 (1982) (holding that exceed the price determined by competitive prices). It is not the intention of the conferees that Congress ‘‘felt that two problems impeded the 121 See, e.g., EPSA Comments at 9 (‘‘The NOPR [QFs] become subject . . . to the type of development of nontraditional generating facilities: avoided rate proposal must therefore be rejected examination that is traditionally given to (1) Traditional electricity utilities were reluctant to because it puts QFs at a disadvantage to utility- electric utility rate applications to determine purchase power from, and to sell power to, the owned generation, in violation of the non- nontraditional facilities, and (2) the regulation of what is the just and reasonable rate that they discrimination mandate under PURPA.’’); Public should receive for their electric power.128 these alternative energy sources by state and federal Interest Organizations Comments at 51 (‘‘[L]imiting utility authorities imposed financial burdens upon QFs to contracts providing no price certainty for the nontraditional facilities and thus discouraged 87. Based on this legislative history, energy values, while non-QF generation regularly the Supreme Court concluded in API their development’’ (internal citations omitted)). obtains fixed price contracts and utility-owned 113 18 CFR 292.601–02. generation receives guaranteed cost recovery from that, ‘‘Congress did not intend to impose 114 18 CFR 292.303(c). captive ratepayers, constitutes discrimination.’’). traditional ratemaking concepts on sales 115 18 CFR 292.305. 122 See, e.g., Allco Comments at 12 (stating that by qualifying facilities to utilities.’’ 129 116 EPSA Comments at 8. allowing a state commission to use a competitive But application of traditional cost-based 117 Public Interest Organizations Comments at 47 solicitation price is simply giving another tool to a ratemaking principles to sales by QFs is (citing FTC v. Anheuser-Busch, Inc., 363 U.S. 536, state commission to kill QF projects). 549 (1960)). 123 EPSA Comments at 8. 118 NIPPC, CREA, REC, and OSEIA Comments at 124 Furthermore, as noted above, PURPA section 126 Public Interest Organizations Comments at 47 36; see also IdaHydro Comments at 11; Industrial 210(b)(1) requires that QF rates also be ‘‘just and (citing FTC v. Anheuser-Busch, Inc., 363 U.S. at Energy Consumers Comments at 12–13; SC Solar reasonable to the electric consumers of the electric 549). Alliance Comments at 5–10; Solar Energy Industries utility and in the public interest.’’ See supra note 127 Conf. Rep. at 97–98 (emphasis added). Comments at 33, 36–38. 102. 128 Id. at 97. 119 Harvard Electricity Law Comments at 28. 125 API, 461 U.S. at 413. 129 API, 461 U.S. at 414.
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exactly what would be required in order suppliers are consumer-owned. rules regarding the rates to be paid to to provide QFs with the same Nebraska Board states its understanding QFs. Consistent with this statutory guaranteed cost recovery that applies to that each retail electric supplier in provision, the PURPA Regulations electric utilities. Also, guaranteeing QFs Nebraska would have jurisdiction to regarding the setting of QF rates have cost recovery is fundamentally exercise flexibilities provided to states applied to nonregulated electric utilities inconsistent with PURPA, which sets in the NOPR. since those regulations were the rate the QF is paid at the utility’s 92. Public Interest Organizations promulgated in 1980.137 The final rule avoided cost, not at the QF’s cost. argue that the Commission failed to does nothing more than continue to 88. It therefore is clear that Congress comply with PURPA section 210’s implement this statutory requirement in did not intend for the PURPA requirement to consult with federal and the same way it always has been nondiscrimination criterion to require state regulatory agencies with implemented. Given PURPA’s unique that QF rates be set in a way that ratemaking authority.133 statutory scheme involving state guarantees recovery of a QF’s own costs, b. Commission Determination regulatory authorities, nonregulated even as Congress recognized that electric utilities, QFs, and the franchised electric utilities selling at 93. Allco’s unlawful delegation claims Commission, we therefore reject Allco’s retail typically do have such guarantees are misplaced. By enacting PURPA assertion that the rules proposed in the for their own costs. Congress thus section 210(f)(1), Congress delegated to NOPR—and adopted in this final rule— withheld from the Commission the the states the obligation to implement establish an unconstitutional delegation authority to provide to QFs the same the Commission’s PURPA rules, and the of authority to a private entity.138 And opportunity to recover costs at retail Commission is acting consistent with it is beyond the Commission’s purview that franchised electric utilities have to that delegation. Congress’s delegation to to consider whether this statutory grant recover their costs at retail; it was done the states was upheld in FERC v. is constitutional.139 Accordingly, when Miss.134 and we are ensuring that the by Congress intentionally and cannot be we refer to states in this final rule, we rules we have imposed abide by all the impermissibly discriminatory.130 usually are referring to both state terms of the statute. Further, the regulatory authorities and nonregulated 3. Unlawful Delegation and the Role of Commission’s current PURPA electric utilities. Nonregulated Electric Utilities Regulations, promulgated in 1980, set 95. Regarding Public Interest a. Comments forth a list of factors that the states are Organizations assertion that the to consider, ‘‘to the extent practicable,’’ Commission failed to comply with 89. Allco argues that PURPA section 135 in setting QF rates. In so doing, the PURPA section 210’s requirement to 210(f) requires states to ‘‘implement’’ Commission emphasized that states consult with federal and state regulatory the Commission’s rules, and that those have ‘‘great latitude in determining the agencies with ratemaking authority, we rules cannot redelegate the manner of implementation of the find that the 2016 Technical Commission’s authority. Allco claims Commission’s rules, provided that the Conference’s invitation to the public that the statutory requirement to manner chosen is reasonably designed (including state regulatory authorities) implement the Commission’s rules to implement the requirements of to speak, as well as the notice and cannot simply be a fac¸ade for delegating Subpart C [which includes the pricing comment process on the NOPR itself, broad authority to states to undercut 136 rules of 18 CFR 292.304].’’ This final encompasses the required PURPA’s directive that QF small power rule adds factors that must be taken into consultation.140 The notices soliciting production must be encouraged. Allco account to the extent practicable in concludes that Congress intended for setting rates, while retaining the ‘‘great 137 See Order No. 69, FERC Stats. & Regs. ¶ 30,128 the Commission to adopt actual rules latitude’’ the states always have had to at 30,864 (‘‘The implementation of these rules is rather than ‘‘a menu of factors’’ that implement the PURPA Regulations and reserved to the State regulatory authorities and essentially leaves states with all the which have been an important feature of nonregulated electric utilities.’’). discretion as to what to implement in the Commission’s PURPA Regulations 138 See Allco Comments at 40. 139 131 Finnerty v. Cowen, 508 F.2d 979, 982 (2d Cir. order to encourage QF generation. since their inception. 1974) (explaining that administrative agencies 90. Allco also asserts that the NOPR’s 94. With respect to Allco’s claim that ‘‘have neither the power nor the competence to pass proposed delegation of authority to the NOPR proposed an unconstitutional on the constitutionality of administrative or nonregulated electric utilities is an delegation to nonregulated electric legislative action’’) (quoting Murray v. Vaughn, 300 utilities, we note that PURPA section F. Supp. 688, 695 (D. R.I. 1969)); see also Gibas v. unconstitutional delegation. According Saginaw Mining Co., 748 F.2d 1112, 1117 (6th Cir. to Allco, such a delegation would mean 210(f)(2) specifically provides that 1984) (‘‘[A]dministrative bodies like the Board do that nonregulated electric utilities (some ‘‘each nonregulated electric utility shall, not have the authority to adjudicate the validity of of which are among the largest utilities after notice and opportunity for public legislation which they are charged with hearing, implement’’ the Commission’s administering.’’); Spiegel, Inc. v. FTC, 540 F.2d 287, in the United States) were regulating 294 (7th Cir. 1976) (finding that the federal agency themselves. Allco argues that a private erred by making a constitutional determination); entity such as a nonregulated electric 133 Public Interest Organizations Comments at 19 Downen v. Warner, 481 F.2d 642, 643 (9th Cir. (citing 16 U.S.C. 824a–3(a)). 1973) (‘‘Resolving a claim founded solely upon a utility cannot constitutionally be 134 132 456 U.S. at 760 (‘‘FERC has declared that state constitutional right is singularly suited to a judicial delegated regulatory power. commissions may implement this by, among other forum and clearly inappropriate to an 91. Nebraska Board states that there is things, ‘an undertaking to resolve disputes between administrative board.’’); cf. Woodrow v. FERC, 2020 no state agency in Nebraska that has qualifying facilities and electric utilities arising WL 2198050, at *9 (D.D.C. May 6, 2020) (‘‘When ratemaking authority over retail electric under [PURPA].’ ’’). Congress creates an intricate statutory-review 135 suppliers and that all retail electric 18 CFR 292.304(e). process that incorporates agency consideration and 136 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at ultimately an avenue to petition an Article III court, 30,891–92. The Commission explained that ‘‘[s]uch we assume it wants that scheme to control.’’). 130 See 16 U.S.C. 824a–3(a) (rules Commission is latitude is necessary in order for implementation to 140 See Notice Inviting Post-Technical Conference directed to prescribe ‘‘may not authorize a [QF] to accommodate local conditions and concerns, so Comments, Implementation Issues Under the Public make any sale for purposes other than resale’’). long as the final plan is consistent with statutory Utility Regulatory Policies Act of 1978, Docket No. 131 Allco Comments at 39–40. requirements.’’ Policy Statement Regarding the AD16–16–000 (Sept. 6, 2016); Supplemental Notice 132 Id. at 40 (citing Ass’n of Am. R.R. v. DOT, 721 Commission’s Enforcement Role Under Section 210 of Technical Conference, Implementation Issues F.3d 666, 677 (D.C. Cir. 2013), vacated on other of the Public Utility Regulatory Policies Act of 1978, Under the Public Utility Regulatory Policies Act of grounds, 135 S. Ct. 1225 (2015)). 23 FERC ¶ 61,304,at 61,646. 1978, Docket No. AD16–16–000 (Mar. 4, 2016)
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comments were open to all state although the term ‘‘avoided cost’’ itself rate at the time of the LEO for the entire authorities. Indeed, since the does not appear in PURPA. life of the contract was that fixing the Commission first announced that 97. In addition, the PURPA rate provides ‘‘certainty with regard to technical conference and up to our Regulations currently provide a QF two return on investment in new receipt of comments on the NOPR, options for how to sell its power to an technologies.’’ 152 representatives from several states have electric utility. The QF may choose to 100. In the NOPR, the Commission filed comments expressing their views sell as much of its energy as it chooses proposed to revise its PURPA on how the Commission should when the energy becomes available, Regulations to permit states to implement PURPA. with the rate for the sale calculated at incorporate competitive market forces in the time of delivery (frequently referred B. QF Rates setting QF rates. Specifically, the to as a so-called ‘‘as-available’’ sale and Commission proposed to revise its 1. Overview rate).147 Alternatively, the QF may PURPA Regulations with regard to QF 96. PURPA requires that the choose to sell pursuant to a legally rates to provide states with the Commission promulgate rules, to be enforceable obligation or LEO (such as flexibility to: 148 • implemented by the states,141 that a contract) over a specified term. Require that ‘‘as-available’’ QF ‘‘shall insure’’ that the rates electric 98. If the QF chooses to sell under the energy rates paid by electric utilities utilities pay for purchases of electric second option, the PURPA Regulations located in RTO/ISO markets be based on energy from QFs meet the statutory then provide the QF the further option the market’s LMP, or similar energy criteria described above, including that of receiving, in terms of pricing, either: price derived by the market, in effect at ‘‘[n]o such rule . . . shall provide for a (1) The purchasing electric utility’s the time the energy is delivered. • rate which exceeds’’ the purchasing avoided cost calculated at the time of require that ‘‘as-available’’ QF 149 utility’s ‘‘incremental cost . . . of delivery; or (2) the purchasing energy rates paid by electric utilities alternative electric energy.’’ 142 Under electric utility’s avoided cost calculated located outside of RTO/ISO markets be PURPA, such rates must: (1) Be just and and fixed at the time the LEO is based on competitive prices determined 150 reasonable to the electric consumers of incurred. by: (1) liquid market hub energy prices; the electric utility and in the public 99. In implementing the PURPA or (2) formula rates based on observed interest; (2) not discriminate against Regulations, the Commission recognized natural gas prices and a specified heat qualifying cogenerators or qualifying that a contract with avoided costs rate. small power producers; 143 and, as noted calculated at the time a LEO is incurred • require that energy rates under QF above, (3) not exceed ‘‘the incremental could exceed the electric utility’s contracts and LEOs be based on as- cost to the electric utility of alternative avoided costs at the time of delivery in available energy rates determined at the electric energy,’’ 144 which is ‘‘the cost the future, thereby seemingly violating time of delivery rather than being fixed to the electric utility of the electric PURPA’s requirement that QFs not be for the term of the contract or LEO. energy which, but for the purchase from paid more than an electric utility’s • implement an alternative approach such cogenerator or small power avoided costs. But the Commission of requiring that the fixed energy rate be producer, such utility would generate or believed that the fixed avoided cost rate calculated based on estimates of the purchase from another source.’’ 145 The might also turn out to be lower than the present value of the stream of revenue ‘‘incremental cost to the electric utility electric utility’s avoided costs over the flows of future LMPs or other acceptable of alternative electric energy’’ referred to course of the contract and that, ‘‘in the as-available energy rates at the time of in prong (3) above, which sets out a long run, ’overestimations’ and delivery. statutory upper bound on a QF rate, has ‘underestimations’ of avoided costs will • require that energy and/or capacity been consistently referred to by the balance out.’’ 151 The Commission’s rates be determined through a Commission and industry by the short- justification for allowing QFs to fix their competitive solicitation process, such as hand phrase ‘‘avoided cost,’’ 146 an RFP, with processes designed to 147 18 CFR 292.304(d)(1). ensure that the competitive solicitation 148 (announcing preliminary agenda and inviting 18 CFR 292.304(d)(2)(i)–(ii); see also FLS, 157 is performed in a transparent, non- interested speakers). FERC ¶ 61,211 at P 21 (citing 18 CFR 292.304(d)). 153 The LEO or contract is frequently referred to as a discriminatory fashion. 141 Nonregulated electric utilities implement the 101. Although the Commission requirements of PURPA with respect to themselves. long-term transaction, when contrasted with an ‘‘as An electric utility that is ‘‘nonregulated’’ is any available’’ sale and rate. proposed to modify how the states are electric utility other than a ‘‘state regulated electric 149 18 CFR 292.304(d)(2)(i). permitted to calculate avoided costs, it utility.’’ 16 U.S.C. 2602(9). The term ‘‘state 150 18 CFR 292.304(d)(2)(ii). Rates calculated at did not propose to terminate the regulated electric utility,’’ in contrast, means any the time of a LEO (for example, a contract) do not electric utility with respect to which a state violate the requirement that the rates not exceed requirement that the states continue to regulatory authority has ratemaking authority. 16 avoided costs if they differ from avoided costs at the calculate, and to set QF rates at, such U.S.C. 2602(18). The term ‘‘state regulatory time of delivery. 18 CFR 292.304(b)(5). avoided costs. authority,’’ as relevant here, means a state agency 151 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at 102. We adopt these proposals in this which has ratemaking authority with respect to the 30,880. See also 18 CFR 292.304(b)(5) (‘‘In the case final rule, with certain modifications. sale of electric energy by an electric utility. 16 in which the rates for purchases are based upon U.S.C. 2602(17). estimates of avoided costs over the specific term of Each such proposal, and our final 142 16 U.S.C. 824a–3(b). the contract or other legally enforceable obligation, determination, is discussed further 143 16 U.S.C. 824a–3(b)(1)–(2). the rates for such purchases do not violate this below. 144 16 U.S.C. 824a–3(b). subpart if the rates for such purchases differ from 145 16 U.S.C. 824a–3(d) (emphasis added). avoided costs at the time of delivery.’’); Entergy 2. Use of Competitive Market Prices To 146 See 18 CFR 292.101(b)(6) (defining avoided Servs., Inc., 137 FERC ¶ 61,199, at P 56 (2011) Set As-Available Avoided Cost Rates costs in relation to the statutory terms); see also (‘‘Many avoided cost rates are calculated on an Order No. 69, FERC Stats. & Regs. ¶ 30,128 at 30,865 average or composite basis, and already reflect the 103. In addition to commenting on the (‘‘This definition is derived from the concept of ‘the variations in the value of the purchase in the lower specific methods for determining as- incremental cost to the electric utility of alternative overall rate. In such circumstances, the utility is available avoided cost rates, several electric energy’ set forth in section 210(d) of already compensated, through the lower rate it PURPA. It includes both the fixed and the running generally pays for unscheduled QF energy, for any costs on an electric utility system which can be periods during which it purchases unscheduled QF 152 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at avoided by obtaining energy or capacity from energy even though that energy’s value is lower 30,880. qualifying facilities.’’). than the true avoided cost.’’). 153 NOPR, 168 FERC ¶ 61,184 at PP 32–33.
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commenters addressed more generally represents a competitive market price just and reasonable and the Commission’s proposal in the NOPR that represents the avoided costs of the nondiscriminatory.163 that states be given the flexibility to use purchasing electric utility.157 109. Some commenters object to the competitive market prices to set such use of competitive markets prices on the rates. Before discussing the specific b. Comments grounds that these competitive prices methods proposed in the NOPR, we first 107. Allco argues that the only reason represent only short-term, or spot prices discuss the determination that the use of for including the use of competitive that do not reflect the long-term competitive market prices, however market prices to set as-available energy marginal costs and other costs avoided 164 determined, can be an appropriate rates is to create a menu of prices from by purchasing utilities. Similarly, approach to determining as-available which a state regulatory authority or some commenters assert that avoided cost rates. unregulated electric utility can choose competitive prices cannot support the 165 a. NOPR Proposal the lowest price. Allco claims this financing of QFs. proposal would not encourage QF 110. Public Interest Organizations 104. In the NOPR, the Commission argue that using competitive prices to proposed to give the states the flexibility generation, would be inconsistent with the rules of economic dispatch, and set as-available energy avoided cost to use competitive market prices to set rates is discriminatory because non-QF as-available avoided cost rates. The would be inconsistent with the language 158 generators are not limited to competitive Commission stated its belief that of PURPA. BluEarth makes similar arguments.159 In contrast, El Paso prices and utilities can, and regularly consideration of transparent, do, pay effective prices for energy that competitive market prices in Electric argues that state regulatory authorities should be able to set avoided exceed the price determined by appropriate circumstances would help competitive prices.166 Several other to identify an electric utility’s avoided cost rates based on the lesser of a market 160 commenters express concern about costs in a simpler, more transparent, hub price or a combined cycle price. Similarly, the California Commission setting QF prices by referencing short- and more predictable manner that term liquid hub prices while allowing would, in conjunction with the argues that utilities located in organized markets (not just non-organized utilities to rate base and recover their Commission’s other existing and long-term investments.167 Industrial proposed PURPA Regulations, act to markets) should also be expressly permitted to use any competitive price Energy Consumers argue that, if the encourage QFs.154 Commission implements the liquid 105. For those utilities located in (whether derived from a market hub, competitive solicitation, or a combined market hub proposal, there must be RTO/ISO markets, the NOPR identified assurances that utilities’ self-builds face LMP as a competitive market price that cycle price) to set avoided cost rates. The California Commission also argues the same market risk exposure as QFs. states could choose to adopt as For example, they argue, if states expose representing an as-available avoided that states should have the ability to use competitive prices for not just as- QFs to variable rates for their energy energy cost. The Commission explained output, utility-owned generation should that LMP could provide an accurate available energy pricing, but also for capacity pricing, and proposes minor also be exposed to variable rates for measure of the varying actual avoided their energy output.168 costs for each receipt point on an modifications to the relevant regulation text proposed in the NOPR in order to 111. Several commenters assert that electric utility’s system where the utility QF rates should reflect benefits other 155 clarify these points.161 receives power from QFs. In addition than the avoided cost of energy.169 For to these benefits, the Commission 108. The California Commission example, Biogas and Biomass Power observed that LMPs, in contrast to the argues that the proposed regulations state that non-energy benefits, like waste administrative pricing methodologies should be modified to: (1) Define the reduction and economic development used to set as-available QF rates by newly permissible avoided cost must be incorporated into avoided cost many states, could promote the more methodologies within the definitions determinations.170 Biogas and Resources efficient use of the transmission grid, section of Part 292; (2) eliminate any for the Future state that locational promote the use of the lowest-cost perception that the new methodologies values should be incorporated into generation, and provide for transparent can only be used to set avoided costs for avoided cost calculations.171 American 156 price signals. as-available energy; (3) allow any Dams states that utilities’ avoided 106. For utilities located outside of appropriate market-based methodology RTO/ISO markets, the NOPR proposed to set avoided-cost rates for energy, 163 Id. at 23–25. to allow states to use two other potential capacity or both; and (4) define 164 IdaHydro Comments at 11; Southeast Public competitively priced measures of a ‘‘Organized Electric Market.’’ 162 The Interest Organizations Comments at 19; NIPPC, utility’s as-available avoided cost rates: California Commission believes that the CREA, REC, and OSEIA Comments at 52, 55 (citing (1) Energy rates established at liquid Exelon Wind I, LLC, 140 FERC ¶ 61,152, at P 52 new regulations should indicate: (1) (2012)); Union of Concerned Scientists Comments market hubs; or (2) energy rates That they do not provide states any at 6. determined pursuant to formulas based more flexibility than they already have; 165 BluEarth Renewables Comments at 2; on natural gas price indices and a proxy (2) that utilities located in organized Biological Diversity at 8; Covanta Comments at 9; heat rate for an efficient natural gas markets may use any Market Hub Price, Public Interest Organization Comments at 43–44. combined-cycle generating facility. In 166 Public Interest Organizations Comments at 64. Competitive Solicitation Price, or 167 IdaHydro Comments at 11; Industrial Energy each such case, though, the state would Combined Cycle Price to establish Consumers Comments at 12–13. need to find that that price reasonably avoided-cost rates; and (3) that a price 168 Industrial Energy Consumers Comments at 12– based on LMP or a Competitive Price is 13. 154 Id. P 13. 169 Biogas Comments at 1–2; Biomass Power 155 Id. P 45. Comments at 1; EPSA Comments at 14–16; 157 NOPR, 168 FERC ¶ 61,184 at P 51. 156 Id. P 48 (citing Cal. Indep. Sys. Operator Resources for the Future Comments at 4; Xcel 158 Allco Comments at 8. Corp., 105 FERC ¶ 61,140, at PP 48–50 (2003); Cf. Comments at 3–5. 159 Price Formation in Energy and Ancillary Servs. BluEarth Comments at 2. 170 Biogas Comments at 2; Biomass Power Mkts Operated by Reg’l Transmission Orgs. and 160 El Paso Electric Comments at 3–4. Comments at 1. Indep. Sys. Operators, 153 FERC ¶ 61,221, at P 2 161 California Commission Comments at 23–27. 171 Biogas Comments at 1; Resources for the (2015)). 162 Id. at 11–14. Future Comments at 4.
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transmission charges should be receiving electric energy at equitable methodologies as confidential trade included in avoided cost rates.’ ’’ 181 secrets.’’185 determinations.172 Xcel states that 115. For this reason, Allco is incorrect 117. We agree with commenters who hidden integration and utility planning when it claims that the competitive assert that competitive market prices costs should also be incorporated into price proposal represents a menu of represent only short-run spot prices that avoided cost calculations.173 American prices that a state can select to choose do not reflect electric utilities’ long-run Dams argues that for high capital the lowest rate. In the event that more costs that QFs can displace. However, projects like hydro, the Commission than one competitive price option we are authorizing states to use should consider longer-term public potentially could apply, the state would competitive market prices only to benefits and not just short-term market be required to select the option that establish as-available energy rates for pricing.174 reasonably reflects the purchasing QFs. The comments misunderstand the 112. Solar Energy Industries asserts utility’s avoided costs, which is what fundamental difference between the that payments based on the LMP should PURPA requires.182 value to a purchasing utility of such as- not relieve the purchasing utility of the 116. Further, the record supports the available energy and the value to a requirement to compensate the QF for conclusion that the use of transparent, purchasing utility of capacity. any values in addition to electricity competitive market prices provides 118. A QF has no obligation under the (e.g., renewable energy credits, encouragement to QFs, represents the as-available avoided cost rate provisions frequency response capabilities, pro- avoided cost, and can ensure that the to deliver any set amount of electric rated capacity value, etc.).175 rate does not exceed the incremental energy at any point in the future, but 113. California Utilities request that cost to the purchasing electric utility. In merely is paid for the amount of electric the Commission clarify that states may addition to the testimony to this effect energy actually delivered. Therefore, the but are not required to consider state presented at the technical conference delivery of as-available energy does not policies when establishing avoided and cited in the NOPR,183 the displace any long-term energy the costs.176 Harvard Electricity Law conclusion is further supported by purchasing electric utility would requests that the Commission clarify its comments submitted in response to the generate itself or purchase from another rule allowing states to set tiered rates.177 NOPR. For example, NIPPC, CREA, source but rather allows the purchasing REC, and OSEIA cite to a report by utility to reduce the amount of energy c. Commission Determination Fitch, which explains how Fitch it otherwise would generate itself or 114. As an initial matter, we observe evaluates the financial strength of purchase from another entity at the time that some of the concerns raised by renewable energy projects. In this the QF delivers the energy. Because the commenters about the use of report, Fitch states that it gives a QF has no obligation to deliver any competitive market prices to set as- ‘‘stronger’’ evaluation to projects with energy in the future, the utility is unable available energy rates for QFs are based power sales contract prices that are to avoid constructing or contracting for on the incorrect assumption that the ‘‘indexed using simple, broad-based capacity to meet its future needs as a NOPR proposal would permit states to publicly available indexation consequence of the delivery of energy 184 use competitive market prices to set as- formulas.’’ In addition, Solar Energy by the QF. As-available energy rates available energy rates for QFs even Industries notes the difficulties QFs face therefore appropriately reflect only the when competitive market prices are in expending large sums to develop short-run value of energy delivered at below the purchasing utility’s avoided their projects ‘‘[f]or states that do not the particular moment in time when and costs. In fact, however, the use of publish the avoided costs, or for utilities if the QF has energy available to be competitive market prices to set QF that treat their avoided cost delivered to the utility. rates is explicitly subject to the 119. A QF can displace an electric requirement that such prices are equal 181 Id. at 415 (quoting Conf. Rep. at 97). utility’s own generation or purchases to the purchasing utility’s avoided 182 In a competitive market, the transportation costs between any such two hubs and a QF would from alternative sources over the long- 178 energy costs. As the Supreme Court be such that they would make the QF rate the same, run when a QF sells capacity to a utility noted in API, the full avoided cost rate no matter which hub was selected. See FERC, in addition to as-available energy. In requirement represents the maximum Energy Primer, A Handbook of Market Basics, at 64 contrast to as-available energy, a sale of (June 2020), https://www.ferc.gov/market- rate permitted under PURPA, and assessments/guide/energy-primer-2020.pdf (Energy capacity would typically compensate thereby provides important Primer) (‘‘If there are no transmission constraints, the QF for maintaining the capability to encouragement to QFs.179 And as the or congestion, LMPs will not vary significantly deliver a set amount of energy in the Supreme Court also noted in the same across the RTO footprint. However, when future (i.e., capital costs),186 and thus transmission congestion occurs, LMPs will vary decision, ‘‘the full-avoided-cost rule across the footprint because operators are not able allows the purchasing utility to avoid plainly satisfies the nondiscrimination to dispatch the least-cost generators across the the cost of making alternative requirement.’’ 180 Further, in requiring entire region and some more expensive generation arrangements, either through a self- full avoided cost rates, ‘‘[t]he must be dispatched to meet demand in the build or an alternative purchase, to Commission did not ignore the interest constrained area.’’). 183 See American Forest & Paper Association obtain that amount of energy. of electric utility consumers ‘in Comments, Docket No. AD16–16–000, at 8 (filed Consequently, the price of capacity June 8, 2016) (‘‘To the extent possible, these purchased from a QF would reflect this 172 American Dams Comments at 4. determinations [of avoided costs] should not be long-run avoided cost. And this final 173 Xcel Comments at 3–5. made in a ‘black box’, but rather, as part of an open rule does not alter a purchasing utility’s 174 American Dams Comments at 2. and transparent method and process.’’); EEI Comments, Docket No. AD16–16–000, at 3 (filed 175 Solar Energy Industry Comments at 27–28. June 30, 2016) (‘‘Where transparent competitive 185 Solar Energy Industries Comments at 41. 176 California Utilities Comments at 18–19. markets with day ahead prices exist, there is no 186 See Order No. 69, FERC Stats. & Regs. ¶ 30,128 177 Harvard Electricity Law Comments at 32–33. reason to adhere to second-best avoided cost pricing at 30,885 (‘‘Energy costs are the variable costs 178 Arguments that the various competitive mechanisms.’’). associated with the production of electric energy market prices identified in this final rule do not 184 NIPPC, CREA, REC, and OSEIA Comments at (kilowatt-hours). They represent the cost of fuel, represent avoided energy costs are addressed below 37–38 (citing FitchRatings, Global Infrastructure & and some operating and maintenance expenses. with respect to each such specific market price. Project Finance, Renewable Energy Project Rating Capacity costs are the costs associated with 179 API, 461 U.S. at 413. Criteria, at 3 (Feb. 26, 2019), https:// providing the capability to deliver energy; they 180 Id. www.fitchratings.com/site/re/10061770). consist primarily of the capital costs of facilities.’’).
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existing obligation to pay QFs for any even utilities whose rates do not include for their location. The Commission avoided capacity benefit that allows the fuel and purchased power adjustment further recognized that LMPs reflect the utility to avoid acquiring capacity.187 clauses nevertheless typically must true marginal cost of production, taking 120. For these reasons, we decline to charge their retail customers cost-based into account all physical system grant the California Commission’s rates, which means that their energy constraints, and these prices would request to allow using competitive charges will vary from one rate case to fully compensate all resources for the prices for not just as-available energy the next as their fuel and purchased variable cost of providing service,191 pricing, but also for capacity pricing.188 power costs vary from year to year. and explained that prices in such an We also reject the California These mechanisms for ensuring that LMP-based rate structure are designed Commission’s request to permit all utility rates vary with the cost of energy to reflect the least-cost of meeting an electric utilities, both those located in result in variances in utility energy rates incremental megawatt-hour of demand organized markets and those located in that are similar to the variance in QF at each location on the grid in each non-organized market areas, to use any energy rates for those states that elect a period, and thus such prices can vary competitive price (whether a Market Competitive Price option (either a based on location and time.192 Hub Price or Combined Cycle Price, or Market Hub Price or a Combined Cycle 126. The Commission therefore alternatively a Competitive Solicitation Price) for as-available avoided cost rates. preliminarily found that LMP is an Price) to set avoided cost rates. The 123. Finally, although we are accurate measure of avoided costs. Market Hub Price and Combined Cycle sympathetic to the claims of certain QFs Unlike, for example, average system- Price, as well as the Competitive that they provide non-energy benefits wide cost measures of avoided cost used Solicitation Price are options that (such as environmental benefits, waste by many states, LMP could provide an should generally reflect a purchasing reduction benefits, and economic accurate measure of the varying actual electric utility’s avoided as-available development benefits) that are not avoided costs for each receipt point on energy costs in non-RTO/ISO areas, reflected in avoided cost rates, PURPA an electric utility’s system where the while the LMP should generally reflect section 210(b) prohibits the Commission utility receives power from QFs; LMP is a purchasing electric utility’s avoided from requiring QF rates to be set above the per MWh cost of obtaining as-available energy costs in RTO/ISO full avoided costs. Because the incremental supplies at each point. market areas. Commission already requires states to Further, the Commission explained that 121. With respect to the set QF rates at full avoided costs, it is these prices are not rigid, long-lasting discrimination claims, our decision to barred from requiring QF rates set prices as tends to be the case currently give states the flexibility to use higher than that based on the non- for administratively-determined avoided competitive prices is driven by the fact energy benefits that QFs may also costs, but prices that are calculated that the competitive market price provide. However, nothing in PURPA, daily (for the day-ahead markets) and/or represents the purchasing utility’s the PURPA Regulations as they every five minutes (for real-time avoided costs. And, as explained in currently exist, or this final rule would markets) and they vary to reflect Section IV.A.2 above, a rate set at full prevent states from rewarding QFs for changing system conditions (e.g., they avoided costs by definition cannot be such non-energy benefits so long as that tend to rise as demand increases and the discriminatory and, in any event, the is done outside of PURPA, such as is system operator dispatches increasingly Commission is without authority under now done for renewable energy credits expensive supplies to meet that higher PURPA section 210(b) to require a rate (RECs) to compensate QFs for providing demand). In addition, the Commission above avoided costs. unique environmental or other non- observed that LMPs, in contrast to the 122. Further, Industrial Energy PURPA benefits.190 We address in the administrative pricing methodologies Consumers are incorrect when they sections below each type of competitive used to set as-available QF rates by suggest that public utility energy rates price that could be used as an many states, could promote the more do not vary with costs in the same way acceptable energy avoided cost. efficient use of the transmission grid, that the competitive market prices promote the use of the lowest-cost potentially applicable to QFs under the 3. LMP as a Permissible Rate for Certain generation, and provide for transparent final rule vary. To the contrary, the As-Available Avoided Cost Rates price signals.193 Finally, the Commission and most states provide for a. NOPR Proposal Commission also noted that Congress, fuel adjustment clauses applicable to 124. The Commission proposed to through enactment of PURPA section rates, which allow utility rates to adjust revise 18 CFR 292.304 to add 210(m), appears to have recognized that automatically with changes in utility subsections (b)(6) and (e)(1). In RTO/ISO LMP pricing provides fuel and purchased power costs.189 And combination, these subsections would sufficient encouragement for QFs. 127. The Commission requested permit a state the flexibility to set the 187 See Order No. 69, FERC Stats. & Regs. ¶ 30,128 comment on whether the real-time as-available energy rate paid to a QF by at 30,881–86 (describing how states must calculate prices established in the CAISO- an electric utility located in an RTO/ISO avoided capacity costs). administered Energy Imbalance Market 188 See infra sections IV.B.3–5. We note that states at LMPs calculated at the time of may use competitive solicitations to set both energy delivery. 191 and capacity avoided cost rates. See infra section 125. The Commission explained that Offer Caps in Mkts Operated by Reg’l IV.B.8. Transmission Orgs. and Independent Sys. 189 See 18 CFR 35.14 (Fuel Cost and Purchased RTO/ISO markets calculate a LMP at Operators, Order No. 831, 157 FERC ¶ 61,115, at P Economic Power Adjustment Clauses); ELCON, each location on the RTO/ISO- 7 (2016), order on reh’g and clarification, Order No. Fuel Adjustment Clauses & Other Cost Trackers, controlled grid, and that all sellers 831–A, 161 FERC ¶ 61,156 (2017). https://elcon.org/fuel-adjustment-clauses-cost- receive the LMP for their location and 192 Sacramento Mun. Util. Dist. v. FERC, 616 F.3d trackers (‘‘Fuel adjustment clauses are in effect in 520, 524 (D.C. Cir. 2010) (SMUD); see also FERC v. almost all states.’’); NARUC, Staff Subcommittee on all buyers pay the market clearing price Elec. Power Supply Ass’n, 136 S. Ct. 760, 768–69 Accounting and Finance, Fuel and Purchased (2016) (describing how LMP is typically calculated). Power Survey Results (Sept. 23, 2015), https:// 190 See, e.g., American Ref-Fuel Co., 105 FERC 193 See, e.g., Cal. Indep. Sys. Operator Corp., 105 pubs.naruc.org/pub/4AA28D50-2354-D714-5149- ¶ 61,004, at PP 22–24 (2003), denying reh’g, 107 FERC ¶ 61,140, at PP 48–50 (2003); cf. Price B773EFC3EFEF (stating that only one state surveyed FERC ¶ 61,016 at PP 12, 15–16 (2004), dismissing Formation in Energy and Ancillary Servs. Mkts said that it did not employ a fuel adjustment pet. for review sub nom. Xcel Energy Servs. Inc. v. Operated by Reg’l Transmission Orgs. and Indep. clause). FERC, 407 F.3d 1242 (D.C. Cir. 2005). Sys. Operators, 153 FERC ¶ 61,221, at P 2.
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(EIM) 194 are similar for these purposes b. Comments capacity prices are sufficiently high to to the LMP in RTOs/ISOs. In this regard, i. Comments in Opposition cover the energy price risk; (2) the the Commission requested comment on market price reflects the full cost of whether ‘‘prices developed in the EIM 129. Several commenters oppose the contracted power and includes all 199 similarly ‘reflect the least-cost of NOPR’s LMP proposal. American sources of supply; or (3) 18 CFR meeting an incremental megawatt-hour Biogas asserts that, by definition, LMP 292.304(f)(1) is modified to provide QF of demand at each location on the grid,’ rates assume that generating facilities operations first priority, except in are receiving other compensation to as the Commission has found to be the special circumstances related to fund their operations and that the case with LMP rates.’’ 195 reliability.205 128. The Commission understood that marginal rate reflects only the value of some states already use LMP to establish the energy. American Biogas asserts that 131. ELCON argues that allowing avoided cost energy rates under the LMP ignores biogas facilities’ unique utilities to use LMP and other existing PURPA Regulations.196 The municipal infrastructure role and competitive market prices would allow 200 Commission thus proposed also to multiple benefits to the community. states to ignore long-standing factors clarify that, while a state in the past may Covanta argues that avoided costs paid established by Commission regulation have been able to conclude that LMP to small baseload QFs should in determining the avoided cost rates, was an appropriate measure of the incorporate all long-run avoided costs including: (1) Availability of capacity or energy component of avoided costs,197 a for capacity and energy and include energy from a QF during the system state would, under the proposal in the other externalities such as the value of daily and seasonal peak periods; (2) NOPR, be able to adopt LMP as a per se renewable baseload energy, greenhouse dispatchability and reliability; (3) the appropriate measure of the as-available gas mitigation, landfill diversion, relationship of the availability of energy energy component of avoided costs.198 reliable and resilient power and other or capacity from the QF to the ability of benefits of small baseload QFs.201 the utility to avoid costs; (4) costs or 194 The Commission noted that, by seeking Biological Diversity argues that LMP savings from variations in line losses; comment regarding the Western EIM prices, the pricing ignores variability across the and (5) application of technology- Commission did not mean to imply that real-time country and is inappropriate in regions specific avoided cost rates.206 ENGIE energy prices established by CAISO within its like the Southeast which lack RTOs and balancing authority area do not already satisfy the argues that allowing states to set energy requirement for setting as-available QF rates. ISOs and are instead still dominated by rates at LMP, while also allowing them 202 195 NOPR, 168 FERC 61,184 at P 47 (quoting vertically-integrated monopolies. to set capacity rates at zero if it is SMUD, 616 F.3d at 524). Use of real time prices in 130. CA Cogeneration argues that determined that a utility has no need for the Western EIM was addressed at the Technical LMP may not represent a truly capacity, could allow traditional Conference, but only in the context of whether that competitive price for electricity because, market could satisfy the requirements for utilities to corner the market on termination of the mandatory purchase obligation in California, the majority of supply is capacity, leaving smaller independent under PURPA section 210(m)(1)(C). See through bilateral contracts, not through QFs to fill energy-only contracts at Supplemental Notice of Technical Conference, competitive bidding in the market. CA LMP.207 Implementation Issues Under the Public Utility Cogeneration states that rooftop solar Regulatory Policies Act of 1978, Docket No. AD16– 132. New England Small Hydro states 16–000 (May 9, 2016). The Commission here distorts LMP by reducing load and not requested comments on whether it would be bidding in its full long-term marginal that the Commission has not supported appropriate to use the Western EIM price to develop cost.203 CA Cogeneration states that the NOPR’s assertion that LMP is an an as-available energy rate. LMPs can be well below the operating accurate measure of avoided costs 196 See Exelon Wind 1, LLC, 140 FERC ¶ 61,152, because the NOPR: (1) Inappropriately at P 11, reconsideration denied, 155 FERC ¶ 61,066 cost of conventional generation and (2016) (recognizing that the Texas Public Utility combined heat and power, and even relies on the Energy Policy Act of 2005’s Commission has permitted Southwestern Public negative, especially when there is an changes in PURPA section 210(m) to Service Company to set avoided costs at LMP); Xcel abundance of procured resources such support its proposed changes to Energy Services Inc., Request for Reconsideration, 204 calculation of the avoided cost rate; (2) Docket No. EL12–80–001, at 13 & n.23 (filed Sept. as hydro, solar, and wind. CA 27, 2012) (stating that Maryland, New Jersey, North Cogeneration asserts that combined heat ignores the costs that the utility pays to Carolina, Virginia, Connecticut, New Hampshire, and power can survive only if: (1) Fixed procure power (i.e., RFPs, other power Kentucky, and Michigan have set avoided costs at contracts, planned retirements); and (3) LMP). FERC ¶ 61,066 at P 11. The Commission also has ignores the fact that LMP and the 197 See 18 CFR 292.304(e). acknowledged that, if adopted in a final rule, the default service rates that exist in ISO– 198 The Commission recognized in the NOPR that reasoning in the NOPR supported a departure from NE-based states are quite different.208 In this proposal could be seen as a departure from the precedent. See Cal. Pub. Utils. Comm’n v. FERC, Commission’s statement in Exelon Wind 1, LLC, 140 879 F.3d 966, 977 (9th Cir. 2018) (‘‘When an agency addition, New England Hydro states FERC ¶ 61,152 at P 52, reconsideration denied, 155 changes policy, the requirement that it provide a that, for the avoided cost calculation, FERC ¶ 61,066 (‘‘The problem with the reasoned explanation for its action demands, at a the appropriate LMP is the day-ahead methodology proposed by [Southwestern Public minimum, that the agency ‘display awareness that Service Company] and adopted by the Texas it is changing position.’’’) (citing FCC v. Fox LMP, not the real-time LMP, because Commission is that it is based on the price that a Television Stations, Inc., 556 U.S. 502, 515 (2009)). utilities primarily purchase energy in QF would have been paid had it sold its energy 199 Biogas Comments at 2; Covanta Comments at the day-ahead market pursuant to directly in the [Energy Imbalance Service] Market, 8–9; Biological Diversity Comments at 8–9; CA instead of using a methodology of calculating what bilateral contracts or RFPs, not in the Cogeneration Comments at 8–9; ELCON Comments real-time market.209 New England the costs to the utility would have been for self- at 23–25; ENGIE Comments at 4; New England supplied, or purchased, energy ‘but for’ the Small Hydro Comments at 8–11; NIPPC, CREA, Hydro also believes that utilities or state presence of the QF or QFs in the markets, as REC, and OSEIA Comments at 53–60; Public regulatory bodies should be required to required by the Commission’s regulations.’’). The Interest Organizations Comments at 52–64; Union establish and maintain long-term Commission has since found that this statement of Concerned Scientists Comments at 4–9; was overtaken by events, namely SPP’s evolution Southeast Public Interest Organizations Comments avoided energy forecasts upon which from an energy imbalance service market into an at 21–25. Integrated Marketplace, with day-ahead and real- 200 Biogas Comments at 2. 205 Id. time energy and operating reserve markets and the 201 206 Texas Commission’s approving a separate request Covanta Comments at 8. ELCON Comments at 23–24. from Southwestern Public Service Company to 202 Biological Diversity Comments at 8–9. 207 ENGIE Comments at 4. substitute LMP for Locational Imbalance Prices in 203 CA Cogeneration Comments at 8–9. 208 New England Small Hydro Comments at 8–10. calculating avoided costs. Exelon Wind 1, LLC, 155 204 Id. 209 Id. at 10.
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QF PURPA power purchase rates would Sierra Club 216 and Bloomberg New the Western EIM is not a complete be based.210 Energy Finance,217 for the proposition measure of avoided energy costs 133. NIPPC, CREA, REC, and OSEIA that the use of LMP as the QF price because the Western EIM merely covers claim that LMPs only promote more discriminates against QFs where utility- imbalance conditions, and therefore efficient use of the transmission grid in owned generation and non-QF does not capture the vast majority of the short-term because factors such as generators are not limited to the LMP for unit commitment and dispatch temporary outages, equipment failures, recovery of their costs, and where scheduling cost parameters.224 Union of weather extremes, and the like can utilities depress LMP through Concerned Scientists asserts that cause LMPs to spike, but these have no uneconomic dispatch of their own allowing a state to adopt real-time prices impact on long-term transmission generation facilities.218 Union of established in the Western EIM as an availability.211 NIPPC, CREA, REC, and Concerned Scientists states that LMPs accurate measure of avoided costs will OSEIA believe that, while LMPs are a are not an accurate measure of avoided be discriminatory.225 useful tool for developers to identify costs and should not be used to set QF ii. Comments in Support points on the grid where transmission is rates because the practice of providing relatively more or less congested, utility-owned generation with out-of- 138. Several commenters support the developers have strong incentives to market cost-recovery in areas like MISO, Commission’s proposal to permit a state avoid congestion, and they will PJM, SPP, the SERC Reliability the flexibility to use LMPs to set the as- generally be guided to areas of low Corporation, and the Western Electricity available energy rate paid to a QF by an congestion during the transmission Coordinating Council suppresses the electric utility located in an RTO/ interconnection process, whether or not clearing prices in the markets where this ISO.226 they face LMP-based contract prices. is allowed.219 139. CA Utilities state that the NOPR’s NIPPC, CREA, REC, and OSEIA claim 136. Southeast Public Interest LMP proposal is a return to the that if transmission constraints prevent Organizations argue that the NOPR’s Commission’s policy as expressed in a generator from delivering power to a proposed avoided cost methodology Winding Creek,227 and will facilitate specific node, the LMP at that node does not take into account: (1) Long- payments to QFs that more accurately cannot be an appropriate measure of term or seasonal purchases made from represent a utility’s actual avoided costs avoided by purchase of power third parties or affiliates; (2) costs. CA Utilities assert that the from that generator. NIPPC, CREA, REC, adjustments for transmission and NOPR’s LMP proposal affirms that a and OSEIA argue that LMP or Western distribution losses; (3) capacity formula energy price contract complies EIM prices at the time of delivery are deferrals; (4) avoided environmental with PURPA if coupled with a fixed not a true measure of the long-term compliance costs; or (5) a QF’s capacity price. CA Utilities state that a avoided costs of incumbent utilities dispatchability.220 Southeast Public formula energy price contract will have unless those utilities are relying on Interest Organizations state that LMP- the additional benefit of avoiding the those markets as a means to obtain long- based rates for QFs in Virginia have need to develop and administer a new term resources.212 enticed little-to-no QF development in PURPA contract.228 134. NIPPC, CREA, REC, and OSEIA Virginia.221 Southeast Public Interest 140. NRECA supports the assert that the NOPR proposal fails to Organizations urge the Commission Commission’s proposal because many recognize: (1) the Commission’s struggle either to rescind the NOPR’s LMP utilities that participate in the RTO/ISO to develop effective capacity markets in provisions or at least to implement this markets offer the entirety of their the RTO/ISO regions; (2) the fact that provision on a case-by-case basis.222 generation into the market, and purchase all of their requirements to the merchant generation model is now (a) Utilizing Western EIM To Establish in serious question; and (3) that the serve load from that market, at LMP Avoided Costs 229 Commission’s claim that Congress prices. endorsed the use of LMP to set avoided 137. Solar Energy Industries argues 141. The Pennsylvania Commission cost rates by adoption of section 210(m) that, because as-available QF resources supports the NOPR proposal because cannot be squared with the plain are not eligible to participate in the LMP prices vary through the day based on changing system conditions, such as language of the statute.213 NIPPC, CREA, Western EIM (also known as the CAISO changes in electricity demand, supply, REC, and OSEIA argue that there is EIM), either directly or through the congestion, and line losses. The substantial evidence that LMP prices are purchasing utility, it would be Pennsylvania Commission asserts that, distorted by certain practices, such as inappropriate to use the Western EIM because some utilities in Pennsylvania zero-cost bids, so that plants operate price as a proxy because that market uneconomically.214 NIPPC, CREA, REC, does not factor in the participation of the QF resource.223 ELCON asserts that 224 ELCON Comments at 24. and OSEIA further maintain that the 225 Union of Concerned Scientists Comments at 9. 2000–01 California market 226 APPA Comments at 11; Arizona Public Service 216 Public Interest Organizations Comments at 53– demonstrated that these volatile short- Comments at 5; CA Utilities Comments at 17; Conn. 56 (citing Jeremy Fisher, Sierra Club, Playing with Authority Comments at 13; DTE Electric Comments term markets can reach extreme and Other People’s Money, How Non-Economic Coal at 4; EEI Comments at 22–24; Comments at 4–5; unpredictable highs under stress Operations Distort Energy Markets, Sierra Club, Oct. Idaho Commission Comments at 3–4; Indiana 215 2019, at 4). conditions. Municipal Comments at 5; Kentucky Commission 217 135. Similarly, Public Interest Id. at 57 (citing William Nelson & Sophia Liu, Comments at 4–5; NorthWestern Comments at 4–7; Organizations cite to studies by the Half of U.S. Coal Fleet on Shaky Economic Footing; NRECA Comments at 6–7; Ohio Commission Energy Coal Plant Operating Margins Nationwide, Advocate Comments at 4–5; Pennsylvania Bloomberg New Energy Finance, March 26, 2018). Commission Comments at 7–9; South Dakota 210 Id. at 11. 218 Id. at 52–64. Commission Comments at 2; US Chamber of 211 NIPPC, CREA, REC, and OSEIA Comments at 219 Union of Concerned Scientists Comments at Commerce Comments at 4; We Stand Comments at 57–59. 3–8. 1; Xcel Comments at 5. 212 Id. at 55 (citing Exelon Wind I, 140 FERC 220 Southeast Public Interest Organizations 227 CA Utilities Comments at 15–17 (citing ¶ 61,152 at P 52). Comments at 22. Winding Creek Solar LLC, 151 FERC ¶ 61,103, 213 Id. at 57–59. 221 Id. at 23. at P 6 (2015)). 214 Id. at 55. 222 Id. at 24. 228 Id. at 17. 215 Id. at 57. 223 Solar Energy Industries Comments at 27. 229 NRECA Comments at 6.
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(and other states) have already location on the grid.234 Xcel asserts that at those prices; (2) payments based on incorporated LMP elements in their as- prices in the Western EIM are calculated an LMP do not relieve the purchasing available energy rates, a corresponding using the same methodology as LMPs utility of the requirement to compensate revision to the Commission’s because, in both cases, units are the QF for any values in addition to regulations that incorporates such dispatched on a least-cost basis that electricity (e.g., renewable energy practices and harmonizes state and respects applicable transmission credits, frequency response capabilities, federal regulations would bring greater constraints. Xcel requests that the pro-rated capacity value, etc.); and (3) predictability to suppliers, electric Commission allow avoided costs to be the state’s flexibility to allow utilities to utilities and customers.230 based on Western EIM prices at the time set QF payment rates for as-available 142. The Ohio Commission Energy of delivery absent a showing that prices energy at the applicable LMP does not Advocate believes that, in the parts of would be suppressed in comparison to in any way limit QFs’ rights to establish the country with organized nodal an LMP-style-market.235 Arizona Public a LEO or contract for a longer-term sale wholesale electricity markets, LMP is an Service states that it is a participant in at fixed, full avoided costs.242 appropriate and fair means by which to the Western EIM, and requests that 150. NorthWestern believes that as- calculate avoided costs because states be given flexibility to set the as- available rates based on LMPs should electricity supply and demand must be available energy rate to be paid to a QF accurately capture current events balanced in real time. The Ohio by an electric utility that participates in impacting prices, including times when 236 Commission Energy Advocate notes that the Western EIM at the LMP. there is a high saturation of energy Ohio has nodal LMPs that reflect the iii. Comments in Support With available causing prices to be negative. true value of energy at the place and the Requested Modifications/Clarifications However, NorthWestern believes that it is appropriate to deduct from the time it is produced or delivered, and 146. APPA urges the Commission to avoided cost rate the cost for ancillary this value can change dramatically, even clarify that nothing in the proposed rule services to balance and integrate energy within a day or an hour. The Ohio is intended to call into question state resources.243 Commission Energy Advocate regulatory authorities’ existing concludes that reflecting the dynamic implementation of PURPA’s avoided c. Commission Determination nature of electricity pricing in avoided cost requirements, such as their existing cost calculations will send the most use of LMP.237 151. We affirm with one modification accurate price signals to QFs and will 147. Industrial Energy Consumers do the NOPR proposal to allow LMP to be appropriately and fairly value the not object to the use of LMP as the used as a measure of as-available energy energy they produce.231 avoided cost rate for electric utilities’ avoided costs for electric utilities 143. The South Dakota Commission purchases of QF energy in RTO/ISO located in RTO/ISO markets for the supports using LMP for certain as- regions,238 but they maintain that in reasons set forth in the NOPR 244 and available QF energy sales because using non-RTO/ISO regions, there must be those provided by various commenters. LMP will increase states’ flexibility. The assurance that utilities’ self-builds face 152. We recognize that an LMP South Dakota Commission regulates six the same market risk exposure as selected by a state to set a purchasing vertically integrated electric utilities, QFs.239 utility’s avoided energy cost component five of which are RTO members, and 148. The Kentucky Commission might not always reflect a purchasing five of which are multi-jurisdictional.232 supports the NOPR’s LMP proposal but utility’s actual avoided energy costs. 144. Xcel submits that compensating prefers that the Commission in the final Accordingly, we find that it is QFs based on LMPs at the time of rule allow states to determine whether appropriate to modify the option for a delivery will not impair QFs’ ability to the LMP calculation should use the state to set avoided energy costs using obtain financing because other factors generator LMP or the load LMP on a LMP from a per se appropriate measure can drive the ability to obtain financing, case-by-case basis.240 of avoided cost to a rebuttable including other project options, 149. Solar Energy Industries assert presumption that LMP is an appropriate location, size, interconnection costs, that, where the purchasing utility has means to determine avoided cost. While experience of the developer, current demonstrated that it procures its a state could rely on the presumption, economic conditions, creditworthiness marginal energy from an LMP market, an aggrieved entity (such as a QF) may of the developer, economies of scale, the utility may use the LMP price as a attempt to rebut the presumption that and other factors. Xcel states that some proxy for avoided energy costs LMP reflects the purchasing electric resource specific information generally calculated at the time the obligation is utility’s avoided costs. The aggrieved suggests that the right project in the incurred, so long as there are published entity would be able to challenge the 241 right location can obtain financing if the prices at the location. Solar Energy state’s decision to rely on LMP in the project receives hourly payment based Industries request that the Commission appropriate forum, which could include on LMPs.233 make clear that: (1) The flexibility to set any one or more of the following: (1) QF payment rates for as-available energy Initiating or participating in proceedings (a) Utilizing Western EIM To Establish at the applicable LMP requires an on-the before the relevant state commission or Avoided Costs record determination that the governing body; (2) filing for judicial purchasing utility procures incremental 145. NorthWestern and EIM Entities review of any state regulatory energy from the identified LMP market agree that the Western EIM real-time proceeding in state court (under PURPA prices are similar to LMPs and reflect section 210(g)); or, alternatively (3)) 234 EIM Entities Comments at 2–3, 7–13; the least cost of meeting an incremental filing a petition for enforcement against NorthWestern Comments at 4–5. the state at the Commission and, if the megawatt-hour of demand at each 235 Xcel Comments at 7–8. 236 Arizona Public Service Comments at 5–6. Commission declines to act, later filing 230 Pennsylvania Commission Comments at 7–8. 237 APPA Comments at 9. a petition against the state in U.S. 231 Ohio Commission Energy Advocate Comments 238 Industrial Energy Consumers Comments at 11. at 4–5. 239 Id. at 12. 242 Id. at 27–28. 232 South Dakota Commission Comments at 2. 240 Kentucky Commission Comments at 4–5. 243 NorthWestern Comments at 4–5. 233 Xcel Comments at 5–7. 241 Solar Energy Industries Comments at 25–26. 244 NOPR, 168 FERC ¶ 61,184 at PP 44–45.
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district court (under PURPA section predictability to suppliers, electric ratepayers are subsidizing such 210(h)(2)(B)).245 utilities and customers.248 activities, even if such claims were true they would not alter the above analysis. 153. Commenters have not persuaded i. Arguments Against the NOPR The LMPs that result from a market that us that LMP may not presumptively Proposal reflect a purchasing electric utility’s includes self-scheduled resources still 155. Commenters have not offered represent the price of purchases in the avoided energy costs. LMP sets day- persuasive arguments for rejecting the ahead and real-time energy prices market that would be displaced by the use of LMP for avoided cost energy rate QF purchase. through competitive auctions in RTOs/ determination. We disagree with the 158. In addition, we reject the related ISOs that optimally dispatch resources argument made by Union of Concerned request for clarification made by Solar to balance supply and demand, while Scientists,249 NIPPC, CREA, REC, and Energy Industries,253 i.e., that the taking into account actual system OSEIA,250 and Public Interest flexibility to set QF payments for as- conditions including congestion on the Organizations 251 that LMP should not available energy at the applicable LMP transmission system. We continue to be used as a measure of avoided energy should require an on-the-record find that: (1) LMPs reflect the true costs because LMP prices are depressed determination that the purchasing marginal cost of production of energy, in many markets where self-scheduling utility procures incremental energy from taking into account all physical system rights and state cost-recovery the identified LMP market at those constraints; (2) these prices would fully mechanisms for fuel and operating costs prices. Unless an aggrieved entity seeks compensate all resources for their create the opportunity for market to rebut this presumption in a state variable cost of providing service; (3) participation at a loss. We recognize avoided cost adjudication, rulemaking, LMP prices are designed to reflect the that, all other things being equal, self- legislative determination, or other least-cost of meeting an incremental scheduling of resources may impact proceeding, that state would not need to megawatt-hour of demand at each market clearing prices. This potential make such an on-the-record location on the grid, and thus prices price effect, however, does not mean determination before it decides to use vary based on location and time; and (4) that the LMP is not an accurate measure LMP. unlike average system-wide cost of avoided energy costs. The 159. Entities may seek to rebut the measures of the avoided energy cost Commission’s regulations, using presumption in particular cases, as used by many states, LMP should language from PURPA section 210(d), described earlier, and whether the provide a more accurate measure of the define avoided costs as ‘‘the incremental utility actually procures energy from the varying actual avoided energy costs, costs to an electric utility of electric identified LMP market or from resources hour by hour, for each receipt point on energy or capacity or both which, but with prices tied to the identified LMP an electric utility’s system where the for the purchase from the qualifying may be a relevant factor in such rebuttal utility receives power from QFs.246 facility or qualifying facilities, such arguments. Consistent with the reasons electric utility would generate for itself described above for why there should be 154. Various commenters have 252 provided additional reasons for or purchase from another source.’’ such a rebuttable presumption in favor 156. In organized wholesale electric supporting the NOPR proposal of LMP, this delineation of rights market areas, the electric utility concerning LMP. NRECA explains that appropriately places the initial burden purchases that would be displaced by LMP rates for energy are appropriate on entities seeking to rebut the QF purchases would, as NRECA because many utilities that participate presumption, rather than on the states explains, in all likelihood be priced at in the RTO/ISO markets offer the who wish to rely on LMP for setting the relevant LMP. These LMPs are entirety of their generation into the avoided cost rates for as-available impacted by many factors, such as self- market at LMP prices and buy all of energy. The Commission could consider scheduling, generator outages, and such issues if and when they may arise their load requirements from the market transmission outages, that may result in 247 in individual cases appropriately at LMP prices. This scenario LMPs that are lower or higher than they described by NRECA is a common one, brought to the Commission, including might otherwise have been. Thus, while whether the state has adequately and it demonstrates that the market self-scheduling or other factors may itself, with its LMP pricing, can be the justified its use of that rebuttable impact LMPs, in any case, an electric presumption. electric utility resource that would be utility’s purchases during periods when displaced by a QF purchase. 160. We reject the arguments made by these price impacts are occurring would NIPPC, CREA, REC, and OSEIA that, Furthermore, as argued by Pennsylvania be made at the resulting LMPs, whatever Commission, because some utilities in more generally, prices for long-term QF those LMPs may be. Therefore, LMPs contracts should be set by reference to Pennsylvania and other states have meet the Commission’s long-standing already incorporated LMP in their as- long-term price indices or other definition of avoided costs for a indicators that genuinely reflect the available energy rates, a corresponding purchasing electric utility, even if they revision to the Commission’s long-term costs of generation avoided by happen to reflect price impacts from 254 regulations that incorporates such the purchasing utility. This final rule self-scheduling or other factors. only addresses as-available energy, and practices and harmonizes state and 157. Furthermore, while commenters federal regulations would bring greater as-available energy prices by definition discuss the possibility that utility- are short term, as explained below in owned coal-fired resources are self- Section IV.B.7.c. 245 See Policy Statement Regarding the scheduling only because retail Commission’s Enforcement Role Under Section 210 161. We also reject the arguments of the Public Utility Regulatory Policies Act of 1978, made by NIPPC, CREA, REC, and OSEIA 23 FERC ¶ 61,304. 248 Pennsylvania Commission Comments at 7–8. that, while the NOPR is correct that 249 246 See NOPR, 168 FERC ¶ 61,184 at PP 44–45 Union of Concerned Scientists Comments at LMPs are intended to promote more (citing SMUD, 616 F.3d at 524; FERC v. Elec. Power 3–8. Supply Ass’n, 136 S. Ct. at 768–69 (describing how 250 NIPPC, CREA, REC, and OSEIA Comments at efficient use of the transmission grid, LMP is typically calculated); Order No. 831, 157 52. FERC ¶ 61,115, at P 7, order on reh’g and 251 Public Interest Organizations Comments 52– 253 Solar Energy Industry Comments at 27–28. clarification, Order No. 831–A, 161 FERC ¶ 61,156). 64. 254 NIPPC, CREA, REC, and OSEIA Comments at 247 NRECA Comments at 6. 252 18 CFR 292.101(b)(6) (emphasis added). 53.
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that is true only in the short term since markets can reach extreme and determining avoided costs, and these factors such as temporary outages, unpredictable highs under stress factors thus will not be relevant. equipment failures, weather extremes, conditions.255 First we note that, in the 166. We are not persuaded by the and the like can cause LMPs to spike, wake of the 2000–2001 California arguments of various commenters that but these have no impact on long-term energy crisis, all RTO/ISO markets LMP cannot be used for avoided cost transmission availability. LMPs promote developed more comprehensive ex ante rates because it ignores the unique efficient use of the transmission grid in market power mitigation measures than municipal infrastructure role and the the long term as well as the short term. existed in CAISO at that time, including multiple benefits of the community of Persistence of significant price offer caps and reference level biogas facilities,258 including the value separation between different LMP nodes replacement offers, meant in part to of renewable baseload energy, provides an indication of the value of moderate such extremes.256 In any greenhouse gas mitigation, landfill various possible transmission system event, any price volatility that may diversion, reliable and resilient power upgrades and can show transparently currently exist in LMP markets, and other benefits of small baseload how system efficiencies may be regardless of the reason for the price QFs.259 PURPA frames the improved by such transmission system volatility, and regardless of whether the determination of QF rates in terms of upgrades. Developers may have some volatility causes LMPs to be lower or avoided cost and does not authorize the incentive to avoid congestion without higher, nevertheless accurately Commission in determining QF rates, LMPs, but LMPs provide an important represents the avoided cost of the particularly as-available energy rates, to price signal as to how economic or purchasing electric utilities in those consider non-energy-related factors such uneconomic a particular production site markets in those hours, as explained as a generator’s unique municipal may be. In any event, the potential for elsewhere in this final rule. infrastructure role, greenhouse gas more efficient use of the transmission 164. Finally, we remain convinced mitigation, and landfill diversion. grid is merely an additional benefit of that Congress recognized that RTO/ISO 167. We also are not persuaded by the using LMP for avoided energy cost LMP pricing provides sufficient argument of CA Cogeneration that LMP determinations. Our adoption of LMP as encouragement for QFs through the may not represent a truly competitive a measure of avoided energy costs in the enactment of PURPA section 210(m) price for electricity in California since RTO/ISO markets is based principally with its directive that, essentially, the the majority of California supply is on the fact that, in RTO/ISO markets, mandatory purchase obligation can be through bilateral contracts, not through LMP accurately represents the lifted upon QFs having non- competitive bidding in the market, and purchasing electric utility’s avoided discriminatory access to RTO/ISO that other factors also distort LMP such energy cost at the time the energy is markets. As noted earlier, however, our as roof top solar. CA Cogeneration, in delivered, for the reasons described decision to grant states the flexibility to essence, objects to the state of earlier. rely on a rebuttable presumption that California’s decision to award preferred 162. We also are not persuaded by RTO/ISO LMP pricing is an appropriate resource status to some resources, such arguments that, if transmission measure of avoided energy costs (and as solar and wind, and not others, such constraints prevent a generator from thus set as-available energy rates in as cogeneration. These are procurement delivering power to a specific node, the reliance on LMPs) reflects our view that, decisions made at the state level in LMP at that node cannot be an in RTO/ISO markets, as a general matter connection with resource planning and appropriate measure of costs avoided by LMP indeed accurately represents the retail ratemaking. Even if those purchase of power from that generator. purchasing electric utility’s avoided decisions impact the resulting LMPs, as As discussed above, an avoided cost rate energy costs. CA Cogeneration claims, that impact should reflect not only the cost of would not invalidate the arguments energy that was avoided by the 165. We also disagree with 257 made above for why LMP is purchasing electric utility, but also the ELCON’s argument that LMP should presumptively an appropriate measure cost to deliver the QF energy to the not be used to measure avoided costs of as-available energy avoided costs in purchasing electric utility’s load, such because that would allow states to RTO/ISO markets. The aggrieved entity that the total cost avoided is reflected in ignore long-standing factors established would be able to challenge the state’s the rate. In an RTO/ISO market, a state by the Commission that should be used decision to rely on LMP in the appropriately is entitled to consider to determine avoided costs. The factors whether the cost of delivery from the QF referenced by ELCON are relevant to the appropriate forum, which could include node to the load node (including any traditional administrative determination any one or more of the following: (1) redispatch costs necessary to facilitate of avoided cost, and our revisions to the Initiating or participating in proceedings such delivery over a system that is regulations preserve these factors for before the relevant state commission or otherwise constrained between those that purpose and for avoided capacity governing body; (2) filing for judicial nodes) should be reflected in the LMP costs. If a state chooses instead to rely review of any state regulatory at the QF supply node. In instances on LMP to set avoided energy cost rates, proceeding in state court (under PURPA commenters refer to where transmission then it will necessarily not be using section 210(g)); or, alternatively (3) constraints prevent a generator from those administrative means of filing a petition for enforcement against delivering power to a specific node, we the state at the Commission and, if the disagree that such delivery is actually 255 NIPPC, CREA, REC, and OSEIA Comments at Commission declines to act, later filing ‘‘prevented.’’ Rather, redispatch of 57. Curiously, these commenters here essentially a petition against the state in U.S. take the position that higher LMPs and resulting system resources would be necessary to district court (under PURPA section higher avoided cost energy rates, which would 260 facilitate the delivery, and the normally seem to be beneficial to QFs, are instead 210(h)(2)(B)). respective LMPs reflect those redispatch now anathema. costs. 256 See generally Wholesale Competition in 258 Biogas Comments at 2. 163. We also reject the argument Regions with Organized Elec. Mkts., Order No. 719, 259 Covanta Comments at 8. 125 FERC ¶ 61,071 (2008), order on reh’g, Order No. 260 See Policy Statement Regarding the made by NIPPC, CREA, REC, and OSEIA 719–A, 128 FERC ¶ 61,059, order on reh’g, Order Commission’s Enforcement Role Under Section 210 that the 2000–01 California market No. 719–B, 129 FERC ¶ 61,252 (2009). of the Public Utility Regulatory Policies Act of 1978, demonstrated that volatile short-term 257 ELCON Comments at 23–24. 23 FERC ¶ 61,304.
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168. We reject the argument made by signed by New England utilities, electric utility has no need for New England Small Hydro that the elsewhere in this final rule the additional capacity (and thus the Commission has not supported its view Commission explains why the use of purchasing utility’s avoided cost for that LMP is an accurate measure of variable prices can be appropriate for capacity would be zero),266 the only avoided costs since LMP ignores the long-term energy contracts. service that QFs (and other suppliers) costs that the utility pays to procure 169. We are not persuaded by the would need to provide that utility is power, including through competitive argument of Southeast Public Interest energy. However, a utility’s ability to solicitations, other power contracts, Organizations that the NOPR does not ‘‘corner the market’’ on capacity planned retirements and other factors establish a framework for just and depends not uniquely on the pricing of that are considered in a utility’s long- reasonable and nondiscriminatory rates QF sales to the utility, but on a host of term plans; and ignores the fact that because the proposed avoided cost factors including the utility’s analysis of LMP and the default service rates that methodology does not take into account its need for capacity and, without a exist in ISO–NE-based states are quite any long-term or seasonal purchases specific inquiry into the circumstances different.261 The costs that a purchasing made from third parties or affiliates, of each utility, it cannot be concluded utility pays to procure power, including adjustments for transmission and that any utility’s decision will always be through competitive solicitations, other distribution losses, capacity deferrals, deficient or that it has been adversely power contracts, planned retirements avoided environmental compliance and inappropriately affected by the and other factors that are considered in costs, or dispatchability of the QF.263 Commission’s action here. a utility’s long-term plans may be LMP pricing, in fact, does reflect 172. Several commenters maintain relevant to the utility’s purchase of transmission and distribution losses. that reliance on LMP will make it capacity using long-term contracts, but The other factors that the Southeast difficult for QFs to obtain financing.267 not to the determination of the proper Public Interest Organizations mention This argument is addressed below in as-available energy avoided cost rate to here, such as environmental compliance section IV.B.7 of this final rule. be paid to QFs, which rates will costs, dispatchability, long-term or ii. Requests for Modification or necessarily vary as system conditions seasonal purchases and capacity Clarification of the NOPR vary over time, as reflected by variances deferrals, are factors that are more in LMP over time. The fact that LMP applicable to the pricing of capacity and 173. We will not provide the and the default service rates that exist long-term contracts, not the pricing of clarifications requested by New England in ISO–NE-based states may diverge is as-available energy, which is what the Small Hydro that the Commission to be expected because the latter, unlike Commission’s NOPR proposal as require the use of the day-ahead LMP the as-available energy rates charged by adopted in this final rule addresses. for QF rates set at LMP, or Southeast QFs in RTO/ISO markets that LMP is 170. The Commission rejects the Public Interest Organizations’ request to being used to price, normally include argument made by Biological require the use of real-time LMP rather transmission and distribution costs (and Diversity 264 that LMP pricing ignores than average LMP. States that choose to possibly firm supplier capacity costs) the variability of conditions across the use LMP will determine the LMP most necessary to ensure that firm supply is country. LMP prices by definition vary representative of the avoided cost of the continually available to residential as supply, demand, and system relevant purchasing utility. customers.262 While utilities or state conditions change across the country. In 174. While the Kentucky Commission regulatory authorities continue to have any event, the Commission agrees that requests that the Commission allow the the authority to establish and maintain LMP pricing would not currently be use of the LMP at a delivery (load) node long-term avoided energy forecasts upon applicable in regions like the Southeast rather than a receipt (generator or QF) which QF PURPA power purchase rates that lack RTOs and ISOs and thus that node, we find that this decision should may be based, and to recognize the do not use LMP. be made by the state as it determines actual future energy costs incorporated 171. We further reject the argument which particular LMP best reflects the in new power contracts that are being made by ENGIE that allowing states to avoided cost of the purchasing electric set energy rates using LMPs combined utility. 261 New England Small Hydro Comments at 8–10. with the ability to set capacity rates at 175. We grant APPA’s request for 262 Compare ISO–NE, Transmission, Markets, and zero if it is determined that a utility has clarification that, while the NOPR Services Tariff, LMPs and Real-Time Reserve provides greater clarity as to states’ Clearing Prices Calculation, § III.2.5 (describing no need for capacity has the potential to how nodal real-time prices are calculated in ISO– allow traditional utilities to corner the entitlement to rely on competitively-set NE at each node using energy offers and bids, market on capacity, leaving smaller prices as a measure of avoided cost transmission constraints, and other factors) with independent QFs to provide only rates, nothing in the final rule is National Grid, Investigation as to the Propriety of 265 intended to call into question any Proposed Tariff Changes, Docket No. DPU 18–150, energy-only service. PURPA does not Exh. NG–HSG–1, Gorman Test. 3:18–4:6 (Nov. 15, direct the Commission to guarantee that particular state’s existing 2018), https://fileservice.eea.comacloud.net/ QF sales make up some specified share implementation of PURPA’s avoided FileService.Api/file/FileRoom/10043215 (‘‘The of utilities’ capacity needs nor does it cost requirements, such as their existing Company’s filing is based on its investments and use of LMP.268 While in the past a state costs incurred to provide distribution service to its require that each QF receive customers. An [Allocated Cost of Service Study] compensation for providing capacity. directly assigns or allocates each element of the PURPA instead focuses on the 266 See, e.g., NOPR, 168 FERC ¶ 61,184 at P 33 revenue requirement, including plant and other purchasing electric utility’s avoided n.58; see also City of Ketchikan, Alaska, 94 FERC investments, operating expenses, depreciation and ¶ 61,293 at 62,061 (2001) (‘‘[A]voided cost rates taxes, among the rate classes, in order to determine costs and provides that the Commission need not include the cost for capacity in the event the costs of providing service to each rate class. cannot require that prices charged by a that the utility’s demand (or need) for capacity is Each element of the total revenue requirement is QF exceed the purchasing electric zero. That is, when the demand for capacity is zero, analyzed and assigned to or allocated among the utility’s avoided cost, if a purchasing the cost for capacity may also be zero.’’). rate classes, so the utility can establish rates that, 267 Biogas Comments at 2; BluEarth Renewables subject to assumptions such as kilowatt-hour Comments at 2; Biological Diversity at 8; Covanta (‘kWh’) delivery volumes and the number of 263 Southeast Public Interest Organizations Comments at 9; Distributed Sun Comments at 1–2; customers, provide it with a fair opportunity to Comments at 22. New England Small Hydro Comments at 10; NIPPC, recover its costs and to earn an appropriate 264 Biological Diversity Comments at 8–9. CREA, REC, and OSEIA Comments at 53. return.’’). 265 ENGIE Comments at 4. 268 APPA Comments at 9.
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may have been able to conclude that to the system, minus congestion costs, purchasing electric utility’s avoided LMP was an appropriate measure of the minus losses, and, in some cases, minus costs for energy. avoided cost for energy, a state can now the cost of carbon.’’ 272 As with LMP, 4. Use of Market Hub Prices as a also rely on a rebuttable presumption these Western EIM price components Permissible Rate for Certain As- that LMP is an appropriate measure of presumptively reflect the avoided cost Available QF Energy Sales the as-available avoided cost for energy of as-available energy incurred by to be used in determining a QF’s as- purchasing electric utilities that are able a. NOPR Proposal available avoided cost energy rate. to participate in the Western EIM 180. In the NOPR, the Commission 176. We provide the following region. recognized that competitive bilateral clarification in response to the Solar 178. We reject arguments that Western energy markets have arisen outside of Energy Industries’ request that the EIM prices should not be used to the RTO/ISO energy markets. Commission make clear that payments establish as-available avoided cost Particularly in the Western United based on LMP do not relieve the energy rates for sales by QFs. With States, price hubs such as the Mid- purchasing utility of the requirement to respect to the unit commitment and Columbia (Mid-C) and Palo Verde hubs compensate the QF for any values in dispatch scheduling cost parameters are liquid markets with prices the addition to electricity (e.g., RECs, etc.), ELCON refers to, it is true that the Commission has recognized as and that the state’s flexibility to allow Western EIM is a real-time imbalance representing competitive market prices utilities to set QF payment rates for as- market built on a decentralized unit at those hubs.275 For the same reasons available energy at the applicable LMP commitment that may not result in that LMPs could represent an does not in any way limit QFs’ rights to exactly the same real-time dispatch and appropriate avoided cost energy rate for establish a LEO or contract for a longer- LMP as would result from an RTO QFs selling to electric utilities located in term sale at fixed, full avoided costs.269 RTO/ISO markets, the Commission 270 market with centralized day-ahead unit In Windham Solar LLC, the commitment and co-optimized energy proposed to find that liquid market hubs Commission summarized its precedent and reserves. Nonetheless, Western EIM can represent appropriate rates for QFs concerning RECs. The Commission prices represent quite precisely the selling to electric utilities located stated that the states have the authority avoided cost of as-available energy for outside of RTO/ISO markets. Like LMP, to determine who owns RECs in the utilities operating in that market liquid market hubs would rely on initial instance and how they are structure since those prices show the competition to derive an avoided cost. transferred, and that the automatic cost of obtaining an additional unit of From a price determination perspective, transfer of RECs within a sale of power energy at any particular place and time. liquid market hub prices differ from at wholesale must find its authority in With regard to the argument of Union of LMP mainly in that they measure price state law, not PURPA. But the Concerned Scientists concerning the at only one or a few points, whereas Commission also held that a state may cost recovery mechanisms available to RTOs/ISOs derive unique LMPs for all not assign ownership of RECs to utilities utility-owned and -affiliated receipt and delivery points on a specific based on a logic that the avoided cost 276 generation,273 as discussed above with area of the system. rates in PURPA contracts already respect to the rebuttable presumption 181. Consequently, the Commission compensate QFs for RECs in addition to that LMP may be used for avoided cost proposed in the NOPR to revise the compensating QFs for energy and rate determination, we do not find these PURPA Regulations in 18 CFR 292.304 capacity, because under PURPA the unproven allegations of use of retail cost to add a subsection (b)(7) which, in avoided cost rates are, in fact, recovery mechanisms to subsidize combination with new subsection (e)(1), compensation just for energy and wholesale RTO/ISO market would permit a state to set the as- capacity.271 We see no reason to disturb participation at a loss sufficient to make available energy rate paid to a QF by that precedent in this final rule. With a blanket finding prohibiting the use of electric utilities located outside of RTO/ regard to the right of QFs to establish a Western EIM prices to set as-available ISO markets at energy rates established LEO, that right is neither limited nor avoided cost energy rates for sales by at liquid market hubs. The Commission expanded by a state’s choice of LMP as QFs. proposed to define Market Hub Prices as the measure of avoided costs for energy. prices determined at a liquid market 179. With regard to the argument hub to which the purchasing electric iii. Western EIM concerning the ability to participate in utility has reasonable access. States the Western EIM raised by Solar Energy 177. We hereby find that the Western electing to set QF energy rates using a Industries,274 EIM prices, like other LMP prices, may for PURPA rate purposes, Market Hub Price also would identify presumptively be used as a measure of it is not relevant whether QFs are able the particular market hub used to set the as-available energy avoided costs for to participate in the Western EIM. The utilities able to participate in the rates at issue here are intended, per the 275 NOPR, 168 FERC ¶ 61,184 at P 52 (citing Price Western EIM market. As Xcel points statute, to reflect the costs of alternative Discovery in Nat. Gas and Elec. Mkts., 109 FERC out, ‘‘prices in the EIM are calculated electric energy that the purchasing ¶ 61,184, at P 66 (2004) (approving the use of using the same methodology as LMPs’’ utility is avoiding. In this context, all published prices at market hubs with sufficient liquidity to set prices charged in tariffs); El Paso since, ‘‘in both cases, units are that matters is whether the Western Elec. Co., 148 FERC ¶ 61,051, at P 7 (2014) dispatched on a least-cost basis that EIM’s prices accurately reflect a (approving the use of the Palo Verde price to set respects applicable transmission purchasing electric utility’s avoided imbalance charges); Idaho Power Co., 121 FERC constraints (i.e., congestion),’’ and ‘‘[t]he costs for energy. Thus, as long as the ¶ 61,181 at P 27 (2007) (approving use of Mid- Columbia prices to set energy imbalance charge); formula for price calculation involves purchasing electric utility is able to PacifiCorp, 95 FERC ¶ 61,467, at 62,676 (2001) determination of the system marginal participate in the Western EIM, a (approving setting energy imbalance rate at average energy cost, which is the cost of rebuttable presumption should apply of four market hub prices); Pinnacle West Energy providing the next increment of energy that Western EIM prices reflect the Corp., 92 FERC ¶ 61,248, at 61,791 (2000) (accepting the use of the Palo Verde price to set prices for affiliate transactions because the Palo Verde Index 269 Solar Energy Industry Comments at 27–28. 272 Xcel Comments at 7–8. is a recognized market hub with competitive 270 156 FERC ¶ 61,042 (2016). 273 Union of Concerned Scientists Comments at 9. prices)). 271 Id. P 4. 274 Solar Energy Industry Comments at 27. 276 NOPR, 168 FERC ¶ 61,184 at P 53.
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price. Such determination would asserts that liquid market hub prices are using prices from a liquid market hub to require the state to find that the prices distorted by the participation of which the purchasing electric utility has at such hub are competitive prices that integrated utilities that submit bids reasonable access. For the reasons reflect the costs an electric utility would below their total costs.284 explained in the NOPR, we find that avoid but for the purchase from the 186. Industrial Energy Consumers liquid market hubs can represent QF.277 oppose the liquid market hub pricing appropriate as-available avoided cost proposal because such markets are not b. Comments energy rates for QFs selling to electric sufficiently competitive, utilities located outside of RTO/ISO i. Comments in Support nondiscriminatory, and transparent to markets. However, as the Commission 182. Arizona Public Service and El be used as the basis for calculating a also found in the NOPR, before relying Paso Electric state that the Palo Verde/ utility’s avoided cost payment.285 on prices from liquid market hubs, a Hassayampa hub represents a regional Industrial Energy Consumers urge the state must find that the liquid market liquid market hub that could be used to Commission not to assume that non- hub price in question represents the set as-available energy avoided costs.278 competitive markets are, in fact, purchasing utility’s avoided cost for as- Portland General likewise asserts that competitive.286 Southeast Public available energy.293 the Mid-C price hub should be approved Interest Organizations state that no 190. Examples of factors a state as appropriate for use in establishing as- southeast state could credibly identify a reasonably could consider in making available energy avoided costs.279 particular market hub that is reasonably this determination (in addition to the 183. Xcel provides two additional accessible and has competitive prices core finding that the liquid market hub factors to support the liquid market hub that actually relate to the costs an represents the purchasing utility’s proposal. First, Xcel cites to the 2018 electric utility would avoid but for the avoided cost for as-available energy) are: State of the Market report issued by the purchase from the QF.287 Southeast (1) Whether the hub is sufficiently Commission’s Office of Enforcement’s Public Interest Organizations also assert liquid that prices at the hub represent a Division of Energy Market Oversight, that the liquid market hub proposal competitive price; 294 (2) whether the which states that trading hub prices does not require states to determine prices developed at the hub are generally align with energy prices whether liquid market hub prices sufficiently transparent; (3) whether the associated with competitive, market- represent a utility’s avoided costs, and electric utility has the ability to deliver based sales. Second, Xcel cites to therefore the proposal would allow power from such hub to its load, even wholesale power sales contracts liquid market hubs to set avoided if its load is not directly connected to providing for the purchase of excess energy prices even when they do not the hub; and (4) whether the hub 288 energy based on a combination of day- represent avoided energy costs. represents an appropriate market to ahead prices at Palo Verde and at Four 187. ELCON asserts that a liquid derive an energy price for the electric regional hub does not necessarily imply Corners, which Xcel asserts utility’s purchases from the relevant liquidity at a more granular level.289 demonstrates that prices at Palo Verde QFs given the electric utility’s physical According to ELCON, the basis spread and Four Corners are reasonably proximity to the hub. These factors are 280 resulting from transmission congestion representative of the value of energy. not intended to be exhaustive, and outside of RTO/ISOs is often opaque in states reasonably could consider other ii. Comments in Opposition real time and poorly documented in factors in identifying a relevant liquid hindsight, and this is a clear indication 184. Several commenters argue that market hub for setting as-available QF that discriminatory treatment and liquid market hubs are short-term spot energy rates. barriers to the bulk transmission system markets and do not represent long-term 191. In order for prices at market hubs persist under current conditions outside energy rates or the other costs associated to represent a purchasing electric of RTO/ISOs.290 ELCON states that for with that energy including, but not utility’s avoided costs, the market hub these and other reasons, bilateral limited to, congestion, transmission, price may need to be subject to and capacity costs.281 Other markets alone are insufficient to serve as adjustments to account for transmission commenters express concern with complete avoided cost measures.291 costs the electric utility would incur setting QF prices at short-term liquid 188. Allco states that prices at liquid before such prices could serve as a hub prices while allowing utilities to market hubs would suffer from factor in determining appropriate QF rate base and recover their long-term shortcomings with respect to small QFs rates.295 In addition, market prices in a investments.282 connected to the distribution system, 185. Public Interest Organizations because purchases from such QFs also region may be determined based on a assert that the liquid market hub allow the purchasing utility to avoid formula that includes adjustments to the proposal is discriminatory because non- transmission costs, including line market hub price or that incorporates prices at more than one market hub QF generators are not limited to the losses.292 liquid market hub price and utilities located in the region, when such prices iii. Commission Determination can, and regularly do, pay effective represent standard pricing practice in prices for energy that exceed the price 189. We adopt the proposal in the the region where the purchasing electric utility is located.296 Such adjustments determined by regional trading.283 NOPR to give the states flexibility to set may be necessary to ensure that the Union of Concerned Scientists similarly as-available avoided cost energy rates 293 See NOPR, 168 FERC ¶ 61,184 at PP 53, 56. 277 Id. P 56. 284 Union of Concerned Scientists Comments at 8. 294 In considering whether a hub is sufficiently 278 285 Industrial Energy Consumers Comments at 12. Arizona Public Service Comments at 6–8; El liquid, states could, for example, consider such 286 Id. Paso Electric Comments at 2–3. factors as those identified by the Commission in 287 279 Portland General Comments at 6–7. Southeast Public Interest Organizations Price Discovery in Nat. Gas and Elec. Mkts., 109 280 Xcel Comments at 8. Comments at 18. FERC ¶ 61,184, at P 66. 288 281 IdaHydro Comments at 11; Southeast Public Id. at 19. 295 Other adjustments also may be necessary in Interest Organizations Comments at 19. 289 ELCON Comments at 25. other situations in order for the adjusted hub price 282 IdaHydro Comments at 11; Industrial Energy 290 Id. to reasonably reflect the purchasing electric utility’s Consumers Comments at 12–13. 291 Id. avoided cost. 283 Public Interest Organizations Comments at 64. 292 Allco Comments at 7–8. 296 NOPR, 168 FERC ¶ 61,184 at P 58.
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competitive market price reflects a c. Proposed Modifications manipulation.306 Finally, they argue purchasing utility’s actual avoided costs i. Comments that the Commission should require for as-available energy. avoided costs to include the costs of 195. APPA requests that the 192. Arguments regarding the short- transmission to and from such hubs Commission clarify that, in addition to except in cases where the utility’s term nature of liquid market hubs and liquid market hubs, as-available energy claims that use of such prices is system directly interconnects with that avoided costs could be determined hub.307 Resources for the Future makes discriminatory are addressed in Section based on prices of comparable IV.B.2 above. similar arguments.308 competitive quality.298 APPA states that 199. In contrast, NorthWestern asserts 193. We will not address in this final amending the proposed regulation in that liquid market hub prices should be rule arguments about whether particular this fashion would also enable utilities adjusted downward by a transmission market hubs should be found to proximate to (or embedded within) differential to reflect the cost of getting represent avoided costs or, to the RTO/ISO markets to reference prices in energy from the market to load.309 contrary, that particular market hubs those markets as viable alternatives in NorthWestern states that reliance on the may be too illiquid or insufficiently 299 establishing avoided costs. market hub to establish avoided costs granular, or that prices at particular 196. The California Commission only remains a valid option if the prices market hubs may not reflect avoided requests that the Commission clarify are less than what it would cost a utility costs. We are not making any that states previously were permitted to to build a resource to supply its determination in this final rule that the use liquid market hub prices under the customers’ needs.310 prices at any specific market hub do or current PURPA Regulations and that the do not represent the avoided costs of proposed revisions simply codify and ii. Commission Determination any specific utility. Rather, we are confirm the validity of this past 200. We clarify that, in adopting a allowing the states the flexibility to rely practice.300 The California Commission rule allowing states to use liquid market on prices at liquid market hubs to set as- and Massachusetts DPU further request hubs to determine as-available avoided available avoided cost energy rates for that the proposed rules be modified to energy costs, we are not finding that the QF sales in regions outside RTO/ISO permit states to use competitive prices use of liquid market hubs for this markets upon a state finding that it is to set both energy and capacity costs, purpose prior to the issuance of this appropriate to do so given the specific and to not be limited to using such final rule was not permitted. Depending circumstances governing a particular mechanisms only for as-available energy on the specific circumstances, a state market hub and the purchasing utility prices.301 may appropriately have determined, involved. The aggrieved entity would be 197. EEI notes that some states may be prior to the final rule, that a liquid able to challenge the state’s decision to located in regions with access to more market hub price represented a use a liquid market hub price in the than one market hub and those states purchasing utility’s as-available avoided appropriate forum, which could include should have the flexibility to use an energy cost. After the effective date of any one or more of the following: (1) average of market hub prices or develop this final rule, an aggrieved entity may Initiating or participating in proceedings a formula correlated to the appropriate seek review of a state’s determination to before the relevant state commission or market hubs to develop the electric use liquid market hubs in the 302 governing body; (2) filing for judicial utility’s avoided cost. EEI notes that appropriate forum.311 review of any state regulatory this proposal is not new, but its 201. We confirm that: (1) States proceeding in state court (under PURPA inclusion in the Commission’s located in regions with access to more section 210(g)); or, alternatively (3) regulations will provide certainty to than one market hub have the flexibility filing a petition for enforcement against states.303 to use an appropriate average of market the state at the Commission and, if the 198. NIPPC, CREA, REC, and OSEIA hub prices or to develop an appropriate Commission declines to act, later filing assert that the liquid market hub formula that relies on data from relevant a petition against the state in U.S. proposal should not be adopted without market hubs to develop an electric 304 district court (under PURPA section making significant changes. For utility’s as-available avoided energy 210(h)(2)(B)).297 example, they argue, only long-term cost, so long as doing so yields a price 194. With respect to Southeast Public contract prices reported at market hubs that accurately reflects the purchasing 305 Interest Organizations’ assertion that the should be used. Even with respect to electric utility’s as-available avoided liquid market hub proposal in the NOPR market-hub prices for long-term energy cost; 312 (2) states must does not require states to determine contracts, they assert that the determine that a liquid market hub is whether liquid market hub prices Commission should include safeguards sufficiently liquid that its prices represent a utility’s avoided costs, the to ensure that prices are set based on represent a competitive price; 313 and (3) Commission intended to impose such a liquid trading with a sufficient number the market hub price may need to be requirement as a prerequisite before a of competitors to assure effective price subject to adjustments to account for liquid market hub may be relied on as discovery, that prices are not subject to transmission costs the electric utility a measure of a purchasing utility’s manipulation, and that reported price would incur.314 avoided cost of as-available energy. indices are accurate and not subject to However, we acknowledge that the mis-reporting or other forms of 306 Id. regulatory text in the NOPR was 307 Id. 298 ambiguous in that regard. Therefore, the APPA Comments at 13. 308 Resources for the Future Comments at 8. 299 Id. at 13. 309 regulatory text of 18 CFR NorthWestern Comments at 5. 300 California Commission Comments at 24. 310 Id. 292.304(b)(7)(i) in the final rule has 301 California Comments at 25; Massachusetts 311 See Policy Statement Regarding the been revised to make this more clear. DPU Comments at 8–10. Commission’s Enforcement Role Under Section 210 302 EEI Comments at 26. of the Public Utility Regulatory Policies Act of 1978, 297 See Policy Statement Regarding the 303 Id. at 27. 23 FERC ¶ 61,304. Commission’s Enforcement Role Under Section 210 304 NIPPC, CREA, REC, and OSEIA Comments at 312 NOPR, 168 FERC ¶ 61,184 at P 58. of the Public Utility Regulatory Policies Act of 1978, 60. 313 Id. P 57. 23 FERC ¶ 61,304. 305 Id. 314 Id. P 58.
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202. Finally, we find that the general other factors that also might be Southeast Public Interest Organizations ruling requested by APPA regarding the appropriate for consideration.316 argue that the Combined Cycle Prices use of ‘‘prices of comparable 205. The Commission stated that proposal does not require states to competitive quality’’ to set as-available natural gas price indices coupled with include variable O&M costs in the proxy avoided cost rates is beyond the scope the heat rate of an efficient natural gas combined cycle plant or an adjustment of this rulemaking in that here we were combined-cycle generating facility may for natural gas transportation, even proposing only particular discrete be a reasonably accurate measure of though a utility-owned combined cycle changes to our regulations for setting as- avoided cost, at least in those markets gas plant would be allowed to recover available avoided cost energy rates where natural gas-fired resources are both types of costs.322 charged by QFs. commonly the marginal units. In such 207. In contrast, R Street opposes the markets, the Commission stated that it proposal because using natural gas 5. Use of Formulas Based on Natural would expect that new supplies of combined cycle plants as the basis for Gas Prices To Establish a Permissible energy would need to be offered at a QF rates in non-RTO/ISO regions could Rate for Certain As-Available QF Energy price equal to or less than the lead to the overpayment of a QF. R Sales incremental cost of using these efficient Street argues that regions without a. NOPR Proposal gas units in order to displace them organized wholesale markets should economically. Thus, the Commission instead price QF rates at the lowest cost 203. The Commission observed in the found preliminarily that using natural resource based on an administratively NOPR that, in regions where there are gas price indices and the heat rate of an determined avoidable cost.323 no RTOs/ISO or liquid market hubs, the efficient combined-cycle natural gas 208. Similarly, ELCON argues that the price of electricity generated by efficient generating facility to establish an proposal is complicated by the fact that combined-cycle natural gas generation avoided cost energy rate relies on natural gas units are not always facilities would appear to represent a competitive market forces, in this case marginal, especially in export- reasonable measure of a competitive competitive forces in natural gas constrained subregions when energy price.315 markets for the fuel used by natural gas renewables output is high. ELCON combined-cycle generating facilities that believes this proposal would be subject 204. The Commission therefore the purchasing electric utility, but for to extensive forecasting error, and proposed to revise the PURPA the purchase from the QF, would therefore argues that careful assessment Regulations in 18 CFR 292.304 to add a generate itself or purchase from another should precede its adoption.324 subsection (b)(7) which, in combination source.317 209. Other entities support the with new subsection (e)(1), would b. Comments NOPR’s Combined Cycle Price permit a state to set the as-available proposal.325 The California Commission energy rate paid to a QF by electric 206. Several entities oppose the and EEI argue that states already had utilities located outside of RTO/ISO NOPR’s Combined Cycle Prices this flexibility under the current markets at Combined Cycle Prices, proposal.318 Allco asserts that this is regulations, and request that the defined as a formula rate established by exactly the type of administrative Commission acknowledge this fact in a the state using published natural gas avoided cost determination about which final rule.326 Similarly, other supporters price indices and a proxy heat rate for NARUC and utilities have of the Combined Cycle Price proposal an efficient natural gas combined-cycle complained.319 Allco also argues that argue that states should have the ability generating facility. The state would the only reason for including the to develop as-available energy price need to determine that the resulting Combined Cycle Prices proposal in the formulas based on technologies other Combined Cycle Price represents an Commission’s regulations is to create a than combine cycle gas plants, if doing appropriate approximation of the menu of prices from which a state so would more accurately reflect the purchasing electric utility’s avoided commission or unregulated utility can relevant purchasing utility’s avoided costs. This determination would involve choose the lowest price, which Allco cost.327 consideration of such factors as, for claims would not encourage QF 210. El Paso Electric argues that: (1) example: (1) Whether the cost of energy generation, and would be inconsistent The gas index price should be adjusted from an efficient natural gas combined- with the rules of economic dispatch and to account for the basis differential cycle generating facility represents a the language of PURPA.320 Public between the price at the natural gas hub reasonable approximation of a Interest Organizations argue that the and the price of natural gas in or near competitive price in the purchasing Combined Cycle Price proposal is the utility’s service area; and (2) states electric utility’s region; (2) whether discriminatory to QFs for all the same should be allowed to update the formula natural gas priced in accordance with a reasons that restricting QF rates to LMP periodically to reflect improved particular proposed natural gas price is discriminatory (i.e., because utilities index would be available in the relevant can, and allegedly do, pay effective 322 Southeast Public Interest Organizations market; (3) whether there should be an prices for energy that exceed the Comments at 19–20. 323 adjustment to the natural gas price to calculation from natural gas prices and R Street Comments at 5. assumed combined cycle heat rates).321 324 ELCON Comments at 26. appropriately reflect the cost of 325 APPA Comments at 12–13; Arizona Public transporting natural gas to the relevant Service Comments at 6; California Commission 316 market; and (4) whether the proxy heat Id. Comments at 23; Chamber of Commerce Comments 317 rate used in the formula should be Id. P 54. at 4; Duke Energy Comments at 9–10; EEI 318 Allco Comments at 8; BluEarth Comments at Comments at 27; El Paso Electric Comments at 3; updated regularly to reflect 1–2; ELCON Comments at 25–26; Industrial Energy Idaho Commission Comments at 3; Southern improvements in generation technology. Consumers Comments at 10–11; Public Interest Comments at 9. The Commission described the above Organizations Comments at 64; R Street Comments 326 California Commission Comments at 23; EEI factors as not exhaustive and proposed at 5; Southeast Public Interest Organizations Comments at 27–28. Comments at 19–20. providing states the flexibility to apply 327 APPA Comments at 13; Duke Energy 319 Allco Comments at 8. Comments at 10; EEI Comments at 27; Idaho 320 Id. Commission Comments at 3; Southern Comments at 315 Id. P 59. 321 Public Interest Organizations Comments at 64. 9–11.
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efficiencies in combined cycle utility’s avoided cost for as-available reflect the cost of transporting natural generating facilities.328 energy. gas to the relevant market. As to El Paso 214. While some commenters Electric’s arguments regarding index c. Commission Determination requested that we expand the proposed price adjustments using basis 211. We adopt the NOPR proposal to regulation explicitly to include differentials, and periodic formula revise 18 CFR 292.304 to add a technologies other than combined cycle updates to reflect efficiency subsection (b)(7) which, in combination natural gas generating facilities, we improvements, we note that the with new subsection (e)(1), would decline to do so for two reasons. First, revisions to the PURPA Regulations, permit a state to set the as-available as already mentioned, the current which we adopt in this final rule, energy rate paid to a QF by electric regulations are already flexible enough provide that states which choose to rely utilities located outside of RTO/ISO to accommodate states calculating on Combined Cycle Prices must markets at Combined Cycle Prices, avoided costs based on the cost of the consider, when designing their defined as a formula rate established by generating units or technology that formulae, whether and to what extent to the state using published natural gas accurately reflects the relevant include these costs, based on their price indices and a proxy heat rate for purchasing utility’s avoided cost.331 assessment of how best to identify a an efficient natural gas combined-cycle Second, this proposal focused relevant purchasing electric utility’s generating facility. We also clarify that specifically on combined cycle avoided cost for as-available energy.333 the formulas used to set as-available technology, as opposed to other 6. Permitting the Energy Rate energy rates based on natural gas prices generating technologies, because Component of a Contract To Be Fixed at should include recovery of variable combined cycle generation makes up the Time of the LEO Using Forecasted O&M costs. such a large portion of the nation’s Values of the Estimated Stream of 212. While some commenters oppose generation fleet.332 This relative Market Revenues allowing states to use Combined Cycle ubiquity, coupled with the fact that Prices (or other competitive prices) to combined cycle natural gas generation 217. The NOPR noted that, frequently, set avoided energy cost rates, states facilities are often the marginal units in price forecasts are available for LMPs in already had the flexibility to determine many regions, justifies an elevated RTOs/ISOs, for liquid market hubs avoided costs in this manner under the profile in the PURPA Regulations for located outside of RTOs/ISOs, and for current regulations, as the California natural gas pricing hubs. Accordingly, 329 combined cycle technology compared to Commission and EEI observe. If other technologies. This final rule does the NOPR suggested that such forecasts Combined Cycle Prices accurately not foreclose other technologies from could be used to allow QFs to request represent a particular purchasing being used for avoided cost a fixed energy rate component utility’s avoided energy costs, their use determination, upon an appropriate calculated at the time a LEO is incurred. would be consistent with the finding by the state that they accurately The Commission therefore proposed to Commission’s existing definition of measure a purchasing electric utility’s add a new option in 18 CFR avoided costs as ‘‘the incremental costs avoided cost for as-available energy. 292.304(d)(1)(iii) permitting fixed to an electric utility of electric energy or 215. Southeast Public Interest energy rates to be based on forecasted capacity or both which, but for the Organizations support their opposition estimates of the stream of revenue flows purchase from the qualifying facility or to Combined Cycle Prices in part by during the term of the contract.334 In qualifying facilities, such utility would claiming that the Commission did not other words, states could rely on generate itself or purchase from another specifically require states to include estimates of forecasted energy prices at source.’’ 330 Furthermore, as noted above variable O&M in the formula. We agree the time of delivery over the anticipated in section IV.B.2, the use of competitive that variable O&M expenses are an life of the contract—such estimates are market prices, including Combined appropriate cost component of formula commonly referred to as forward price Cycle Prices, to set QF rates is explicitly rates and should be included in any curves—to develop a fixed energy rate subject to the requirement that such Combined Cycle Price formulae in order component for that contract when such prices are equal to the purchasing to accurately reflect the relevant estimates reflect the purchasing electric utility’s avoided energy costs. Therefore, purchasing electric utility’s avoided utility’s avoided costs. this proposal merely codifies more costs. 218. The NOPR stated that the fixed explicitly an option for determining 216. With respect to the arguments of energy rate component of the contract avoided cost rates that already existed, Southeast Public Interest Organizations could be a single energy rate, based on i.e., where a state determines that a regarding natural gas transportation the amortized present value of the Combined Cycle Price is a measure of costs, the regulation we adopt in this forecast energy prices, or it could be a the purchasing electric utility’s avoided final rule, 18 CFR 292.304(b)(7)(ii)(C), series of specified energy rates that are cost for as-available energy. specifically requires that states consider different in future years (or other 213. The concerns of R Street, whether there should be an adjustment periods).335 Under this proposal, the QF ELCON, and others that Combined to the natural gas price to appropriately would be able to establish, at the time Cycle Prices may not reflect a particular the LEO is incurred, the applicable purchasing electric utility’s avoided cost 331 See 18 CFR 292.101(b)(6). energy rate(s) for the entire term of a are addressed by the requirement that 332 According to EIA data, the nameplate capacity contract; however, the energy rate in the the state would need to determine that of natural gas-fired combined cycle generation contract could be different from year-to- the Combined Cycle Price indeed technology, exceeds the nameplate capacity of represents the purchasing electric generation from any other fuel source. See EIA, Electric Power Annual Table 4.7.A Net Summer 333 See new 18 CFR 292.304(b)(7)(ii). Capacity of Utility Scale Units by Technology and 334 NOPR, 168 FERC ¶ 61,184 at P 61. 328 El Paso Electric Comments at 3–4. by State, 2018 and 2017 (Megawatts), https:// 335 Id. P 62 (noting that the PURPA Regulations 329 States could have used any of the competitive www.eia.gov/electricity/annual/html/epa_04_07_ already require that the fixed energy rate would prices adopted in this final rule to set avoided cost a.html, and 4.7.C Net Summer Capacity of Utility need to account for the operating characteristics of energy rates as long as such prices met, to the extent Scale Units Using Primarily Fossil Fuels and by the QF, including the QF’s ability to deliver energy practicable, the factors described 18 CFR State, 2018 and 2017 (Megawatts), https:// during peak periods and the utility’s ability to 292.304(e). www.eia.gov/electricity/annual/html/epa_04_07_ dispatch energy from the QF (citing 18 CFR 330 See 18 CFR 292.101(b)(6). c.html. 292.304(e)(2)).
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year (or some other period) and flexibility.341 According to these avoided cost rates based on a forecast of nevertheless comply with the current commenters, the proposal also balances future avoided costs.349 According to requirement in 18 CFR 292.304(d)(2)(ii) the QF’s need for a steady stream of EEI, the Commission has not ruled that the energy rate be fixed for the term revenue with the purchasing electric either that any form of forecasting is of the contract.336 utility’s responsibility to have a prudent mandated or that any is mix of supply contracts for its provider 350 a. Comments unacceptable. of last resort obligations.342 The 225. Allco states that the proposed 219. Two commenters oppose the Chamber of Commerce states that, while new option in 18 CFR 292.304(d)(1)(iii) NOPR proposal to add a new option in future rates are not guaranteed to permitting fixed energy rates to be based 18 CFR 292.304(d)(1)(iii) permitting materialize, the projected rates will on forecasted estimates of the stream of fixed energy rates to be based on more accurately reflect those realized revenue flows during the life of the forecasted estimates of the stream of than a single avoided cost rate set at the contract is consistent with PURPA revenue flows during the life of the inception of a QF contract.343 section 210 and is already permitted. contract.337 Southeast Public Interest 221. Arizona Public Service states that Allco also states that forecasts need to Organizations and Mr. Mattson state it supports the proposal because it be non-discriminatory. According to that the NOPR proposal is a departure grants states additional flexibility, Allco, utilities and states frequently use from past precedent.338 Southeast which helps protect utilities’ customers one forecast when dealing with QFs and Public Interest Organizations state that from over-paying for generation due to another when obtaining approval for this proposal suffers the same QFs need for sales guarantees and their favored projects; Allco asserts that deficiencies as the LMP and liquid financing.344 NRECA agrees that states this practice is discriminatory.351 market hub price proposals. must have flexibility in determining 226. APPA states that the proposed Furthermore, according to Southeast forecasted market prices including change is a logical extension of the Public Interest Organizations, the NOPR appropriate discounting to ensure that conclusion that market options are a provides no analysis as to how or utilities and consumers are not locked legitimate alternative means of whether the forward price curves result into contracts with fixed prices that are specifying avoided costs.352 Distributed in just and reasonable and non- higher than prevailing market prices.345 Sun states that it supports permitting discriminatory rates as required by 222. NRECA requests that the states to set fixed energy rates with PURPA.339 Commission clarify proposed revisions forward curves or through competitive 220. Other commenters support the to 18 CFR 292.304(d)(1)(i), (ii), and (iii) solicitations.353 NorthWestern supports NOPR proposal to add a new option in to state that an electric utility is exempt the proposal to permit fixed energy rates 18 CFR 292.304(d)(1)(iii) permitting from offering a stream of market revenue to be on a forward price curve fixed energy rates to be based on as payment, even if there is a market developed from prices in either the 346 forecasted estimates of the stream of hub price that could be relevant. The organized markets or liquid market revenue flows during the term of the Connecticut Authority also suggests that hubs.354 contract.340 The South Dakota the Commission modify 18 CFR Commission and Pennsylvania 292.304(d)(1)(ii) to specify that a state b. Commission Determination Commission state that they support the may set a series of energy rates. For this 227. We adopt the proposal to add a NOPR proposal on forecasted values of option, Connecticut Authority argues, new option in 18 CFR 292.304(d)(1)(iii) the estimated stream of revenues the regulatory text should provide permitting fixed energy rates to be based because it forecasts a steady stream of greater regulatory and commercial on forecasted estimates of the stream of revenue and provides built-in certainty to QF developers, avoiding revenue flows during the term of the disputes with distribution utilities and contract. The Commission has 336 Id. (noting that this is permissible under the states.347 previously permitted the use of this Commission’s existing PURPA Regulations (citing 223. Connecticut Authority supports Windham Solar LLC, 157 FERC ¶ 61,134, at PP method to establish energy and capacity 5–6 (2016) (Windham Solar) (‘‘[A]lthough state revisions to 18 CFR 292.304(d)(2) rates over the term of a contract or regulatory authorities cannot preclude a QF . . . because the rule would permit a state to LEO.355 Nevertheless, given the from obtaining a legally enforceable obligation with limit a QF’s option to select a preferred flexibilities we adopt in this final rule a forecasted avoided cost rate, we remind the energy rate methodology.348 parties that the Commission’s regulations allow with respect to competitive market state regulatory authorities to consider a number of Connecticut Authority also supports the prices and variable energy rates, we factors in establishing an avoided cost rate. These proposed 18 CFR 202.304(d)(iii) that clarify here that a state may use factors which include, among others, the permits states to set a stated or fixed rate competitive market prices and/or availability of capacity, the QF’s dispatchability, the for energy that is calculated using the QF’s reliability, and the value of the QF’s energy variable energy rates in the context of a and capacity, allow state regulatory authorities to present value of the expected stream of more fixed estimated avoided cost establish lower avoided cost rates for purchases revenue from as-available energy rates energy rate (together with a fixed from intermittent QFs than for purchases from firm during the life of the contract or LEO. avoided capacity rate) that is QFs.’’ (citing 18 CFR 292.304(e)–(f)) (footnote 224. EEI states that this proposal is determined at the time an LEO or omitted))). not novel, and as an example notes that 337 Southeast Public Interest Organizations contract is incurred. The fixed energy the Commission and a federal district Comments at 25; Mr. Mattson Comments at 26. rate component of the contract could be 338 Southeast Public Interest Organizations court have already found that the Comments at 25; Mr. Mattson Comments at 26. Connecticut Authority could set 349 EEI Comments at 28 (citing Allco Renewable 339 Southeast Public Interest Organizations Energy Ltd. v. Mass. Elec. Co., 208 F. Supp. 3d. 390, Comments at 25. 341 Pennsylvania Commission Comments at 8–9; 395 (D. Mass. 2016); Windham Solar, 157 FERC 340 Allco Comments at 8; APPA Comments at 14; South Dakota Commission Comments at 3. ¶ 61,134 at P 5. Arizona Public Service Comments at 2–3; Chamber 342 Pennsylvania Commission Comments at 8–9. 350 EEI Comments at 28–30. of Commerce Comments at 4–5; Connecticut 343 Chamber of Commerce Comments at 4–5. 351 Allco Comments at 8. Authority at 13; Distributed Sun Comments at 2; 344 Arizona Public Service Comments at 2–3. 352 EEI Comments at 28–30; Idaho Commission APPA Comments at 14. 345 Comments at 4; NorthWestern Comments at 6; NRECA Comments at 8. 353 Distributed Sun Comments at 2. NRECA Comments at 8; Pennsylvania Commission 346 Id. at 9. 354 NorthWestern Comments at 6. Comments at 8; Resources for the Future Comments 347 Connecticut Authority Comments at 14. 355 Windham Solar, 157 FERC ¶ 61,134 at P 4 at 8; South Dakota Commission Comments at 3. 348 Id. at 13. (citing 18 CFR 292.304(d)(2)).
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a single rate, based on the amortized estimated stream of revenues represents this concern, some commenters present value of forecast energy prices, a purchasing electric utility’s avoided recommended that the Commission or it could be a series of specified rates costs over a specified term. Similarly, in allow states to ‘‘price generation that change from year-to-year (or other order to provide states flexibility to use [energy] from QFs at market prices, and periods) in future years. We also will LMPs and other competitive market to update those prices regularly so that allow the state to establish the prices to establish as-available avoided the prices for [QFs] are not burdensome applicable energy rate(s) for the QF for energy costs, we will not require a state on customer rates’’ and that the the entire term or the rate may change to use this option to guarantee a stream Commission should limit avoided cost from year-to-year (or some other period) of revenues. energy rates in a LEO to no higher than of the contract at the time the LEO is avoided cost rates at the time of 7. Providing for Variable Energy Rates in incurred. delivery.363 QFs, in turn, argued that QF Contracts 228. Southeast Public Interest elimination of the option to fix QF rates Organizations and Mr. Mattson state a. Background for the term of a contract would threaten that the NOPR proposal is a departure 232. As explained above, if a QF a QF’s ability to obtain financing.364 from past precedent. The very purpose chooses to sell energy and/or capacity of a proceeding like this is to consider b. NOPR Proposal pursuant to a contract, the PURPA changes to our regulations and our Regulations currently provide the QF 234. In the NOPR, the Commission doing so is not impermissible. the option of receiving the purchasing proposed to revise 18 CFR 292.304(d) to 229. Southeast Public Interest permit a state to limit a QF’s option to Organizations also state that the electric utility’s avoided cost calculated and fixed at the time the LEO is elect to fix at the outset of a LEO the proposal suffers the same deficiencies as 357 energy rate for the entire length of its the LMP and liquid market hub pricing incurred. The Commission’s justification in Order No. 69 for contract or LEO, and instead allow the proposals and that the NOPR provides state the flexibility to require QF energy no evidence as to how or if the forward allowing QFs to fix their rate at the time of the LEO for the entire term of a price curves present just and reasonable Light Company] is forced to pay for the same wind and non-discriminatory rates as contract was that fixing the rate power for long-term contracts entered into as of required by PURPA. Given that we find provides certainty necessary for the QF June 2016. As a result, PURPA-mandated wind 358 above that LMPs and liquid market hub to obtain financing. The Commission power purchases associated with just one project stated that its regulations pertaining to could cost Alliant Energy’s Iowa customers an prices may reflect avoided as-available incremental $17.54 million above market wind energy costs and that estimates of such LEOs ‘‘are intended to reconcile the prices over the next 10 years.’’) (emphasis in prices over the term of a contract can requirement that the rates for purchases original); EEI Supplemental Comments, Docket No. therefore reflect a purchasing electric equal the utilities’ avoided costs with AD16–16–000, attach. A at 3–4 (June 25, 2018) (EEI the need for qualifying facilities to be Supplemental Comments) (‘‘On August 1, 2014, a utility’s avoided as-available costs over 10-year fixed price contract at the Mid-Columbia time, we do not believe Southeast able to enter contractual commitments wholesale power market trading hub was priced at Public Interest Organizations and Mr. based, by necessity, on estimates of $45.87/MWh. On June 30, 2016, the same contract Mattson’s concerns are justified. future avoided costs.’’ 359 Further, the was priced as $30.22/MWh, a decline of 34 Commission agreed with the ‘‘need for [percent] in less than two years. However, over the 230. Although, as described below, next 10 years, PacifiCorp has a legal obligation to we allow states to require variable certainty with regard to return on purchase 51.9 million MWhs under its PURPA avoided cost energy rates, allowing investment in new technologies.’’ 360 contract obligations at an average price of $59.87/ forward price curves determined at the The Commission stated its belief that MWh. The average forward price curve for the Mid- time an LEO is incurred provides an any overestimations or Columbia trading hub during the same period is 361 $30.22/MWh, or 50 [percent] below the average additional option for states to calculate underestimations ‘‘will balance out.’’ PURPA contract price that PacifiCorp will pay. The avoided energy costs in advance while 233. The provision that QFs be additional price required under long-term fixed also using transparent metrics for those permitted to fix their rates for the entire contracts will cost PacifiCorp’s customers $1.5 calculations. Use of the forward price term of a contract or other LEO has billion above current forward market prices over the next 10 years.’’); Comm’r Kristine Raper, Idaho curve does not deter the adoption of just proved to be one of the most Commission Comments, Docket No. AD16–16–000, and reasonable and non-discriminatory controversial aspects of the at 3–4 (filed June 30, 2016) (‘‘Idaho Power rates required by PURPA, moreover, and Commission’s PURPA Regulations. demonstrated that the average cost for PURPA insofar as we require that states Some commenters at the Technical power since 2001 has exceed the Mid-Columbia (Mid-C) Index Price and is projected to continue to determine that the estimated stream of Conference submitted data indicating exceed the Mid-C price through 2032. Likewise, revenues reflects the purchasing electric that energy prices have declined in PacifiCorp’s levelized avoided cost rates for 15-year utility’s avoided energy, such pricing is recent years, leaving the fixed energy contract terms in Wyoming shows a decrease of fully consistent with the statute’s portion of the QF rate, even when approximately 50 [percent] from 2011 through 2015 (from approximately $60 per megawatt-hour to less requirements. With regard to forecasts, levelized, well above market prices that than $30 per megawatt-hour).’’). we acknowledge that the forecast used likely would represent the purchasing 363 EEI Supplemental Comments, attach. A at 4; to set the avoided cost rate must electric utility’s actual avoided energy see also Southern Company Comments, Docket No. meaningfully and reasonably reflect the costs at the time of delivery.362 Based on AD16–16–000, at 7 (filed June 30, 2016) (‘‘[T]he utility’s avoided costs over time.356 avoided energy cost payment to the QF should be based on actual avoided energy cost at the time the 357 18 CFR 292.304(d)(2)(ii). 231. We decline to modify this QF delivers energy.’’). 358 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at proposal expressly either to permit or 364 See Technical Conference, Docket No. AD16– 30,880 (justifying the rule on the basis of ‘‘the need prohibit a state from setting a series of 16–000, Tr. 26:22–25, 27:1–3 (June 29, 2016) (filed for certainty with regard to return on investment in July 8, 2016) (Technical Conference Tr.) (Solar estimated avoided energy costs over new technologies’’). Energy Industries) (‘‘The Power Purchase time. Each state will be required to 359 Id. Agreement is the single most important contract of determine whether a particular 360 Id. the development and financing of an energy project 361 Id. that’s not owned by a utility. Without the long-term 356 See 18 CFR 292.304(b)(5). Rates calculated at 362 See Alliant Energy Comments, Docket No. commitment to buy the output of that agreement at the time of a LEO (for example, a contract) do not AD16–16–000, at 5 (Nov. 7, 2016) (‘‘Current market- a fixed price, there is no predictable stream of violate the requirement that the rates not exceed based wind prices in the Iowa region of MISO are revenue. Without a predictable stream of revenues, avoided costs if they differ from avoided costs at the approximately 25 [percent] lower than the PURPA there is no financing. Without any financing, there time of delivery. contract obligation prices [Interstate Power and is no project.’’).
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rates to vary during the term of the capacity owners to sell their energy into described below, showing that contract. However, under the proposed the organized electric markets at LMPs independent generators that have not revisions to 18 CFR 292.304(d), a QF that vary based on market conditions at qualified as QFs under PURPA would continue to be entitled to a the time the energy is delivered. The (including renewable resources that contract with avoided capacity costs Commission stated that these fixed could qualify as QFs but have not calculated and fixed at the time the capacity and variable energy payments sought QF status) have been able to contract or LEO is incurred. Only the have been sufficient to permit the obtain financing for new facilities. The energy rate in the contract or LEO could financing of significant amounts of new Commission stated that the fact that be required by a state to vary. Further, capacity in the RTOs and ISOs.369 owners of such facilities, which do not the NOPR did not propose to obligate Testimony presented at the Technical have recourse to the avoided cost rate states to require variable avoided cost Conference similarly showed that non- provisions of PURPA, have been able to energy rates—they would retain the QF independent power projects located obtain financing for new projects is ability to allow the QF’s energy rate be outside of RTOs enter into contracts relevant to the question of whether the fixed at the time the LEO is incurred.365 with fixed capacity and variable energy existing PURPA avoided cost 235. The Commission preliminarily prices.370 Other comments at the provisions—including the requirement found compelling the record evidence Technical Conference suggested that a to enter into contracts with fixed energy that overestimations have not been fixed capacity charge likewise would be rates—are necessary for QFs to obtain adequately balanced by adequate for financing a QF project.371 financing.374 underestimations in past years. Further, 238. The Commission further noted 240. For example, EIA data showed it appeared to the Commission that this that there are financial products that, since 2005, QFs have made up only trend may persist into the future with available, such as contracts for 10% to 20% of all renewable resource the continuing general decline in the differences, which allow generation capacity in service in the United States, cost of both wind and solar owners to hedge their exposure to demonstrating that most renewable generation.366 Consequently, the fluctuating energy prices.372 The resources no longer need to rely on Commission found that it may be Commission stated that financial PURPA avoided cost rates to sell their necessary to allow states to provide for products can provide additional comfort output economically.375 EIA data also a variable energy rate in order to reflect to lenders regarding the level of energy showed that net generation of energy by more accurately the purchasing electric rate revenues that a QF can expect from non-utility owned renewable resources utility’s avoided costs and therefore to the energy it delivers, in addition to the in the United States escalated from 51.7 satisfy the statutory requirement that QF fixed capacity payments the QF is terawatt hours (TWh) in 2005 when rates not exceed the utility’s avoided entitled to receive under its contract.373 EPAct 2005 was passed, to 340 TWh in cost and ‘‘be just and reasonable to the 239. The Commission also explained 2018. The Commission further observed electric consumers of the electric utility that, although it may have been true at that, while much of this growth was in and in the public interest.’’ 367 the time the Commission promulgated states located in RTOs/ISOs, there also 236. The Commission acknowledged its PURPA Regulations in 1980 that QFs was significant growth of non-utility that the current PURPA Regulations needed to fix their energy rate for the renewable generation in other states. For allowing a QF to fix its rates for the life term of their contract in order to obtain example, net generation by non-utility of a contract or LEO were based on the financing of their facilities, there is renewable resources in the region recognition that fixed rates are evidence that this no longer is true. This defined by EIA as the Mountain State beneficial for obtaining financing for QF evidence comes in the form of data, region 376 increased from 3.6 TWh in projects. The Commission also 2005 to 19.5 TWh in 2012, and to 42.5 recognized that QF developers have 369 Id. P 70 (citing Monitoring Analytics, LLC., Third Quarter, 2018 State of the Market Report for TWh in 2018. Pacific Northwest (Oregon continued to assert that they require PJM, January through September, at 249, Table 5– and Washington) net non-utility fixed rates to finance new projects. 6 (Nov. 8, 2018), http:// generation from renewable resources However, the Commission stated that it www.monitoringanalytics.com/reports/PJM_State_ increased from 1.5 TWh in 2005, to 8.7 did not view the proposed modification of_the_Market/2018/2018q3-som-pjm.pdf (over 23,000 MW of new capacity constructed in PJM TWh in 2012, and to 10.6 TWh in 377 to the PURPA Regulations as materially Interconnection, L.L.C. since 2007–2008; including 2018. affecting the ability of QFs to obtain over 16,000 MW of new capacity added in the last 241. The Commission found that EIA financing for several reasons.368 four years)). data on independently-owned natural 237. First, the Commission expressed 370 Id. (citing Technical Conference Tr. at 167–69 gas-fired generation capacity told a its understanding that fixed energy rates (Southern Company) (‘‘So if we enter into a bilateral contract with an independent power producer for similar story. Natural gas-fired capacity are not generally required in the electric combustion turbine or combined cycle capacity, we without the requisite cogeneration industry in order for electric generation don’t fix the energy price. The capacity payment is technology cannot qualify as qualifying facilities to be financed. For example, a fixed payment. That’s their fixed [stream]. The small power production or RTO/ISO capacity markets provide only energy price is typically indexed to the price of natural gas.’’); id. at 178 (American Forest & Paper cogeneration, and thus most of this for fixed capacity payments, leaving Association) (‘‘Now, you sign a long-term IPP capacity would not be within the scope contract. That contract [has] got a variable energy of the PURPA avoided cost rate 365 NOPR, 168 FERC ¶ 61,184 at P 67. cost in it.’’)). provisions. The Commission cited to 366 Id. P 68 (citing EIA, Today in Energy, Average 371 Id. P 70 (citing Solar Energy Industries EIA data showing that, in 2018, U.S. construction costs for solar and wind Comments, Docket No. AD16–16–000, at 3 (filed continued to fall in 2016 (Aug. 8, 2018), https:// June 30, 2016) (‘‘Developers need rates for such www.eia.gov/todayinenergy/detail.php?id=36813 sales of energy and/or capacity to be fixed.’’) 374 Id. P 73. (‘‘Based on 2016 EIA data for newly constructed (emphasis added)). 375 Id. P 74 (citing EIA, Today in Energy, North utility-scale electric generators (those with a 372 Id. P 72 (citing Elec. Storage Participation in Carolina has More PURPA-Qualifying Solar capacity greater than one megawatt) in the United Mrkts. Operated by Reg’l Transmission Org. and Facilities than any other State, figure titled PURPA States, annual capacity-weighted average Independent Sys. Operators, Order No. 841, 162 qualifying facilities (1980–2015) percent of total construction costs for solar photovoltaic systems FERC ¶ 61,127, at P 299 (2018) (noting that ‘‘market renewable capacity (Aug. 23, 2016), https://eia.gov/ and onshore wind turbines declined . . . .’’)). participants that purchase energy from the RTO/ISO todayinenergy/detail.php?id=27632). 367 Id. P 68 (internal quotations omitted) (citing markets . . . may enter into bilateral financial 376 Arizona, Colorado, Idaho, Montana, Nevada, 16 U.S.C. 824a–3(b)(1)). transactions to hedge the purchase of that energy’’)). New Mexico, Utah, and Wyoming. 368 Id. P 69. 373 Id. P 72. 377 NOPR, 168 FERC ¶ 61,184 at P 74.
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approximately 44% of all energy Commission testified at the Technical vary in QF contracts and other LEOs, produced by natural gas-fired generation Conference that the Idaho Commission’s arguing it will reduce overpayments and in the United States was generated by decision to limit QF contracts to a two- protect customers.388 In that regard, independently-owned capacity.378 The year term was based on the Idaho Duke Energy asserts that the primary total amount of energy produced in Commission’s concern that longer factor behind overpayment has been the 2018 by independently-owned natural contract terms at fixed rates would lead requirement to offer fixed avoided cost gas-fired generation was 651 TWh, an to payments above avoided costs.384 energy rates during a period of rapidly increase of 13.7% from 2017.379 Again, Similarly, Southern Company testified declining energy prices.389 Several other the percentage of independently-owned that the fixed rate requirement is commenters similarly cite to the general natural gas generation outside of RTOs/ ‘‘resulting in . . . typically shorter decline of energy prices coupled with ISOs was lower than in RTOs/ISOs, but contract term lengths.’’ 385 Golden the fact that QFs have been able to lock still was significant. In the Mountain Spread Electric Cooperative in rates over the life of a contract or State region, 21.4% of the energy recommended that, if the fixed rate other LEO as reasons for their support produced by natural gas-fired generation requirement is not eliminated, the of the NOPR proposal.390 in 2018 was produced by Commission permit shorter contract 246. Several commenters also support independently-owned capacity, and in terms, ‘‘as short as one-year or three the NOPR’s variable rate proposal Oregon and Washington 45.4% of years at most.’’ 386 because it will allow states greater natural gas-fired energy was produced 244. Finally, the Commission flexibility to determine avoided cost by independently-owned capacity.380 addressed one particular standard form rates accurately and to meet PURPA’s From this, the Commission concluded of QF contract rate currently employed consumer protection goals.391 LG&E/KU that independent owners of non-QF by a number of utilities, which is a one- states that such flexibility is appropriate generation have been, and continue to part rate, applicable to each MWh of and necessary to meet the statutory be, able to obtain financing for their energy delivered by the QF. This one- requirement that ratepayers not pay a facilities.381 part rate is calculated to reflect both rate that exceeds the electric utility’s 242. The Commission did not suggest avoided capacity costs and avoided incremental cost of alternative that this evidence supports the energy costs. Contracts employing such energy.392 NorthWestern argues that conclusion that substantial non-QF rates also typically impose a must providing such flexibility will assist in capacity is being financed and purchase obligation on the purchasing guaranteeing that customers are held constructed without any form of fixed utility. The Commission stated that its harmless by purchases of QF power.393 revenue to support financing. Rather, proposed rule was not intended to 247. Supporters of the NOPR variable the Commission concluded that the prevent states from implementing such rate proposal also commented on evidence demonstrated that the existing an approach to setting QF contract rates specific aspects of the proposal. These PURPA avoided cost rate provisions are in the future. The Commission proposed comments are discussed in more detail not necessary for some independent that, to the extent a state determines to in the following sections. power generators to put in place establish a one-part QF contract rate that recovers both avoided capacity and ii. Comments in Opposition to NOPR contractual arrangements, including Proposal fixed revenue streams, that are sufficient avoided energy costs, the rate must to obtain financing. The Commission continue to be subject to the QF’s option 248. Several commenters oppose the 394 reasoned that QFs, which have the to select a fixed rate for the term of the NOPR variable energy rate proposal. ability to take advantage of PURPA’s contract, as provided in 18 CFR 388 mandatory purchase requirements, 304(d)(2)(ii). Any requirement to impose Conservative Action Comments at 1; a variable energy QF contract rate would Consumer Energy Alliance Comments at 2; EEI should be better positioned than non- Comments at 30–31; Idaho Power Comments at 7– QFs to negotiate the necessary need to be accomplished through a 8; Idaho Commission Comments at 4; LG&E/KU contractual arrangements for financing. multi-part rate that includes separate Comments at 3; NextEra Comments at 5; see also Moreover, the Commission noted that avoided capacity cost rates and avoided Alaska Power Comments at 1; Arizona Public energy cost rates.387 Service Comments at 3–4; Basin Comments at 6–8; QFs are equally as well positioned as Chamber of Commerce Comments at 4; Freedom non-QF independent generators to take c. General Comments on the NOPR Center Comments at 1–2; R Street Comments at 5; advantage of federal and state incentives Proposal Tax Reform Comments at 1–2. designed to encourage the construction 389 Duke Energy Comments at 5–7. i. Comments in Support of NOPR 390 of renewable resources. 382 Consumer Energy Alliance Comments at 2; Proposal Idaho Power Comments at 7–8; Idaho Commission 243. Further, the Commission pointed Comments at 4; LG&E/KU Comments at 3; Ohio to evidence that the desire to limit the 245. Several commenters support the Commission Energy Advocate Comments at 4. effect of fixed QF contract rates had NOPR proposal to allow energy rates to 391 Alliant Energy Comments at 9; Duke Energy directly led to PURPA implementation Comments at 8–9; LG&E/KU Comments at 4; MA issues that affected QF financing in 384 Id. P 65 (citing Technical Conference Tr. at DPU Comments at 1, 7; NorthWestern Comments at 142–43 (Idaho Commission) (‘‘No matter the 6–7. other respects, particularly with respect starting point, allowing QFs to fix their avoided cost 392 LG&E/KU Comments at 4. 383 to the length of QF contracts. For rates for long terms results in rates which will 393 NorthWestern Comments at 6–7. example, a commissioner of the Idaho eventually exceed and overestimate avoided cost 394 Allco Comments at 9–11; AllEarth Comments rates into the future. The longer the term, the at 2; Biogas Comments at 2; BluEarth Comments at 378 greater the disparity.... [The Idaho Commission] 2; CARE Comments at 3–5; Biological Diversity NOPR, 168 FERC ¶ 61,184 at P 75 (citing EIA, recently reduced PURPA contract lengths to two Electric Power Monthly with Data for December Comments at 8; ELCON Comments at 18, 21–23; years in order to correct the disparity. We didn’t EPSA Comments at 6–13; Massachusetts AG 2018, at tbl. 1.7.B, https://www.eia.gov/electricity/ reduce contract lengths to kill PURPA. We did it monthly/current_month/epm.pdf.). Comments at 8–9; North Carolina DOJ Comments at to allow periodic adjustment of avoided cost 2–6; North Carolina Commission Staff Comments at 379 Id. rates.’’)). 2–4; New England Hydro Comments at 8; NIPPC, 380 Id. 385 Id. P 65 (citing Technical Conference Tr. at CREA, REC, and OSEIA Comments at 29–48; North 381 Id. 202 (Southern Company)). American-Central Comments at 4–6; Public Interest 382 Id. P 76. 386 Id. P 65 (citing Golden Spread Electric Organizations Comments at 6–7, 27–51; Resources 383 Id. P 65 (citing Natural Resources Defense Cooperative Comments, Docket No. AD16–16–000, for the Future Comments at 4–7; Solar Energy Council Comments, Docket No. AD16–16–000, at 4 at 10 (filed June 30, 2016)). Industries Comments at 28–38; SC Solar Alliance (filed June 30, 2016)). 387 Id. P 81. Continued
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In addition to objections as to specific 252. NIPPC, CREA, REC, and OSEIA consumers have borne the brunt of the aspects of that proposal, which are and Public Interest Organizations assert overpayments, which subsidized QFs, discussed in the following sections, that it is unclear whether independent in contravention of Congressional intent some commenters raise threshold issues power producers that have obtained and the Commission’s expectations. regarding this proposal. financing did so with short-term 255. Given that PURPA section 210(b) 249. NIPPC, CREA, REC, and OSEIA variable rate conditions.400 North prohibits the Commission from cite to the PURPA Conference Report as American-Central argues that, if a requiring QF rates in excess of avoided expressing Congress’s intent that QFs be variable rate will preclude a QF from costs,404 this record evidence supports entitled to long-term fixed energy rates. receiving financing in the first place, it our decision to give the states the Specifically, they cite to the statement is irrelevant that a state might be more flexibility to require variable avoided in the Conference Report that ‘‘the willing to offer a longer-term cost energy rates in QF contracts and Commission and States should look to contract.401 other LEOs to prevent QF rates from the reliability of that power to the utility exceeding avoided costs. We discuss and the cost savings to the utility which iii. Commission Determination specific aspects of the variable energy may result at some later date by reason 253. In this final rule, we adopt rate provisions below, but at the outset of supply to the utility at that time of without modification the NOPR variable address certain threshold issues raised power from the cogenerator or small rate proposal. We find that setting QF in the comments. power producer.’’ 395 According to energy avoided cost contract and other 256. We reiterate the points made in NIPPC, CREA, REC, and OSEIA, this LEO rates at the level of the purchasing detail above in Section II. The variable statement shows that ‘‘Congress also utility’s avoided energy costs at the time energy avoided cost rate provision is not recognized that attempts to set the rates the energy is delivered is consistent based on any determination that the based on the avoided costs at the time with PURPA, which limits QF rates to Commission’s rules no longer should of delivery would likely be insufficient the purchasing utility’s avoided costs. encourage QF development. The to encourage such facilities.’’ 396 Indeed, a variable energy avoided cost question of whether QFs should 250. Harvard Electricity Law asserts approach is a more accurate way to continue to be encouraged is a question that the Commission may not authorize ensure that payments to QFs equal, but for Congress. Rather, we are revising the state regulators to change rates in do not exceed, avoided costs.402 It is PURPA Regulations by giving states the existing contracts.397 Harvard Electricity inevitable that, in contrast, over the life flexibility to require variable avoided Law then asserts that the Commission: of a QF contract or other LEO a fixed cost energy rates in QF contracts and (1) Attempts to portray its agenda as energy avoided cost rate, such as that other LEOs in order to better comply consistent with Congressional intent by used in past years, will deviate from providing a skewed summary of the actual avoided costs. if the 2019 avoided cost rate had been used. As a legislative history; (2) presents an 254. As described in more detail in result of this lag, [Portland General’s] customers would pay an additional $1.6 million more for the unsupported statement that its rules the following sections, the record energy from the QF facility over the 15-year will ‘‘continue to encourage’’ QF overwhelmingly supports our contract term.’’); see also NOPR, 168 FERC 61,184 development, which ignores the conclusions that long-term forecasts of at P 64 n.101 (citing Alliant Energy, Comments, administrative record and fails to avoided energy costs are inherently less Docket No. AD16–16–000, at 5 (filed Nov. 7, 2016) (‘‘Current market-based wind prices in the Iowa account for regulatory changes since accurate, and that states should be given region of MISO are approximately 25% lower than PURPA’s enactment; (3) misreads its the flexibility to rely on a more accurate the PURPA contract obligation prices [Interstate own rules in claiming that repeal is variable avoided cost energy rate Power and Light Company] is forced to pay for the necessary to protect consumers; and (4) approach. Further, there are numerous same wind power for long-term contracts entered into as of June 2016. As a result, PURPA-mandated relies on a finding that fixed price instances where overestimates and wind power purchases associated with just one energy contracts are not necessary to underestimates have not balanced project could cost Alliant Energy’s Iowa customers encourage QFs that is based on out.403 When that has occurred, an incremental $17.54 million above market wind irrelevant data and questionable prices over the next 10 years.’’) (emphasis in original); EEI Supplemental, Comments, attach. A at assumptions that are not grounded in 1193 (3d Cir. 1995) (Freehold Cogeneration); Smith 3–4 (‘‘On August 1, 2014, a 10-year fixed price reasoned decision making. Cogeneration Mgt. v. Corp. Comm’n., 863 P.2d 1227 contract at the Mid-Columbia wholesale power 251. Harvard Electricity Law also (Okla. 1993) (Smith Cogeneration)). market trading hub was priced at $45.87/MWh. On 400 NIPPC, CREA, REC, and OSEIA Comments at asserts that allowing long-term contracts June 30, 2016, the same contract was priced as 46. $30.22/MWh, a decline of 34% in less than two to include variable rates is contrary to 401 North American-Central Comments at 5–6. years. However, over the next 10 years, PacifiCorp PURPA.398 In support of this assertion, 402 16 U.S.C. 824a–3(b)(1). has a legal obligation to purchase 51.9 million Harvard Electricity Law cites to two 403 See Duke Comments at 6 (Duke’s QF contracts MWhs under its PURPA contract obligations at an decisions which it claims stand for the cost $4.66 billion but its ‘‘actual current avoided average price of $59.87/MWh. The average forward costs’’ are $2.4 billion); Idaho Power Comments at price curve for the Mid-Columbia trading hub proposition that the Commission’s 10–11 (‘‘The cost of PURPA generation contained in during the same period is $30.22/MWh, or 50% proposed rule would impose forbidden Idaho Power’s base rates, on a dollars per MWh below the average PURPA contract price that utility-type regulation on QFs.399 basis, is not just greater than Mid-C market prices, PacifiCorp will pay. The additional price required it is greater than all the net power supply cost under long-term fixed contracts will cost PacifiCorp’s customers $1.5 billion above current Comments at 4–10; Southeast Public Interest components currently recovered in base rates. Idaho forward market prices over the next 10 years.’’); Organizations Comments at 9–18; sPower Power’s average cost of PURPA generation included Comm’r Kristine Raper, Idaho Commission Comments at 10–13; State Entities Comments at 2– in base rates is $62.49/MWh. At $62.49/MWh, the Comments, Docket No. AD16–16–000, at 3–4 (filed 3; Mr. Mattson Comments at 26–27; Two Dot Wind average cost of PURPA purchases is greater than the June 30, 2016) (‘‘Idaho Power demonstrated that the Comments at 11–13; Western Resource Councils average cost of FERC Account 501, Coal at $22.79/ average cost for PURPA power since 2001 has Comments at 2. MWh; greater than FERC Account 547, Natural Gas at $33.57/MWh; greater than FERC Account 555, exceed the Mid-Columbia (Mid-C) Index Price and 395 NIPPC, CREA, REC, and OSEIA Comments at Non-PURPA Purchases at $50.64/MWh; and is projected to continue to exceed the Mid-C price 27 (quoting Conf. Rep. at 98–99). significantly greater than what is being sold back to through 2032. Likewise, PacifiCorp’s levelized 396 Id. the market as FERC Account 447, Surplus Sales at avoided cost rates for 15-year contract terms in 397 Harvard Electricity Law Comments at 23 $22.41/MWh.’’); Portland General Comments at 5 Wyoming shows a decrease of approximately 50% (citing API, 461 U.S. at 414). (‘‘for a typical 3 MW Solar QF project that incurred from 2011 through 2015 (from approximately $60 398 Id. at 28. a LEO in 2016 and reaches commercial operations per megawatt-hour to less than $30 per megawatt- 399 Id. at 29 (citing Freehold Cogeneration Assoc. three years later, [Portland General’s] customers hour).’’). v. Bd. of Regulatory Comm’rs. of N.J., 44 F.3d 1178, would pay 67% more for the project’s energy than 404 This prohibition is described in Section IV.A.
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with Congress’s clear instruction in reservoir as a result of a purchase from Law.410 Those decisions, which PURPA that the Commission may not a QF, and thereby be able to generate overturned state avoided cost require QF rates in excess of a electricity from the hydroelectric facility determinations allowing for changes in purchasing utility’s avoided costs. at a later date rather than running a QF rates, were based on the provision in 257. By its very nature, the question more expensive fossil fuel unit at that the original PURPA Regulations giving of fixed versus variable energy rates is later date. Congress stated that the QFs the option to select contracts with a question of how risk from increases in avoided cost in its example should be long-term fixed avoided cost rates.411 avoided energy costs over the life of a based on the cost of the more expensive Indeed, the Smith Cogeneration QF contract or other LEO should be fossil unit whose operation was avoided decision quotes at length from the allocated. Answering this question at a later date rather than the avoided explanation in Order No. 69 of the requires the Commission to allocate this cost at the time the QF delivered its Commission’s justification for its risk either to (i) customers of electric energy.408 requiring in its regulations fixed utilities, or (ii) QFs and their investors avoided cost rates in QF contracts and and lenders. But the Commission does 260. While Congress recognized that LEOs.412 Neither decision suggests that not have unlimited discretion in how it the better measure of avoided cost in PURPA would prevent the Commission resolves the question. Congress in that scenario might be the cost of the from revising its regulations to allow PURPA section 210(b) provided alternative fossil fuel unit that would states the flexibility to require variable 409 guidance to the Commission in how it not be run at that later date, nothing avoided cost energy rates, as the should perform that allocation—by in the quoted section of the PURPA Commission is doing here. mandating that the Commission cannot Conference Report suggests that 262. Harvard Electricity Law also adopt a rule that provides for a rate that Congress intended the Commission to relies on Freehold Cogeneration and exceeds the incremental cost of require that all avoided cost energy rates Smith Cogeneration to assert that the alternative electric energy.405 be fixed at the outset for the life of a QF Commission is imposing ‘‘utility-type’’ 258. Opponents of variable avoided contract or other LEO. And nothing in regulation in violation of Congressional cost energy rates urge the Commission the revision being implemented in this intent as expressed in the PURPA to continue placing this risk on the final rule would prohibit a state from Conference Report.413 However, those customers of electric utilities, as it did calculating a QF’s avoided cost energy holdings do not address the changes the in the past, by retaining the option for rate for a QF contract or LEO in the Commission is implementing here. By QFs to fix their avoided cost energy manner suggested in the PURPA adopting a provision that allows states rates in their contracts or LEOs Conference Report or, indeed, in the the option to require variable avoided notwithstanding record evidence, manner the Commission has long cost energy rates, we are not mandating discussed elsewhere in this final rule, allowed, if a state determined that such ‘‘utility-type’’ regulation. The PURPA that fixed energy rates compared to an approach best reflects the purchasing Conference Report states that: ‘‘It is not actual avoided costs have not balanced electric utility’s avoided costs. the intention of the conferees that [QFs] out over time. But, after consideration of 261. Fourth, the variable avoided cost become subject . . . to the type of the record, the Commission has decided energy rate provision adopted herein examination that is traditionally given instead to allow states to reduce the risk does not run afoul of the Freehold to electric utility rate applications to to customers by giving states the Cogeneration and Smith Cogeneration determine what is the just and flexibility to require variable avoided cases cited by Harvard Electricity reasonable rate that they should receive cost energy rates in QF contracts and for their electric power.’’ 414 Our action LEOs. The Commission’s determination 408 Id. at 98–99 (‘‘In interpreting the term today is consistent with that statement; ensures that the PURPA Regulations ‘incremental cost of alternative energy,’ the we are not subjecting QFs to the same continue to be consistent with the conferees expect that the Commission and the states type of examination that is traditionally statutory avoided cost rate cap in may look beyond the cost of alternative sources given to electric utility rate applications which are instantaneously available to the utility. (e.g., cost-of-service rate regulation). PURPA section 210(b), coupled with the Rather, the Commission and states should look to directive in the Conference Report that the reliability of that power to the utility and the 263. Indeed, the regulation adopted customers of utilities not be required to cost savings to the utility which may result at some today does not subject QF rates to any subsidize QFs.406 later date by reason of supply to the utility at that examination whatsoever of the costs 259. Third, there is no merit to the time of power from the cogenerator or small power incurred by QFs in producing and producer; for example an electric utility which contention that the PURPA Conference owns a source of hydroelectric power and which is selling power. Rather, the variable Report expresses Congressional intent offered the sale of electric energy from a cogenerator avoided cost energy rate provision that QFs are entitled to long-term fixed or small power producer might, if measured over applicable to QF contracts and other energy rates. The statement in the the short term, have a low incremental cost of LEOs that is adopted in this final rule alternative power because of its access to Conference Report cited by NIPPC, hydropower; however, it may be the case that by sets QF rates based on the avoided costs CREA, REC, and OSEIA does not purchasing from the cogenerator or small power support this contention.407 The example producer and saving hydropower for later use, the 410 Harvard Electricity Law Comments at 29 provided in the PURPA Conference utility can avoided the use of expensive electric (citing Freehold Cogeneration, 44 F.3d at 1193; energy generated by fossil fired units during later Smith Cogeneration, 863 P.2d at 1227). Report was of a utility owning a months of its seasonal generation cycle. Thus, 411 See Smith Cogeneration, 863 P.2d at 1241 hydroelectric generating facility. viewed over the longer period of time, the (holding that allowing reconsideration of Congress hypothesized that this utility incremental cost of alternative electric energy might established avoided costs ‘‘makes it impossible to might be able to avoid drawing down its be substantially higher than that measured by the comply with PURPA and FERC regulations instantaneously available hydropower.’’). requiring established rate certainty for the duration 409 Under the approach adopted in this final rule, of long term contracts for qualifying facilities that 405 16 U.S.C. 824a–3(b); see also 16 U.S.C. 824a– with the flexibility granted to states to adopt—but have incurred an obligation to deliver power’’) 3(d); 18 CFR 292.101(b)(6), 292.304(b)(2). not a mandate directing states to adopt—variable (emphasis added); Freehold Cogeneration, 44 F.3d 406 Conf. Rep. at 98 (‘‘The provisions of this avoided cost energy rates for QF contracts and other at 1193 (relying on Smith Cogeneration analysis section are not intended to require the rate payers LEOs, states can adopt a pricing approach that best that ‘‘that PURPA and FERC regulations preempted of a utility to subsidize cogenerators or small power fits their circumstances, including adopting the the State Commission rule’’) (emphasis added). produc[er]s.’’) (emphasis added). pricing approach described by the Conference 412 Smith Cogeneration, 863 P.2d at 1240. 407 See NIPPC, CREA, REC, and OSEIA Comments Report to address the circumstances described by 413 Harvard Electricity Law Comments at 30. at 27 (quoting Conf. Rep. at 98–99). the Conference Report. 414 Conf. Rep. at 97.
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of the purchasing utility. In no sense leaving customers saddled with IPP and renewables industries in RTOs/ can this variable avoided cost energy uneconomic PURPA contracts. ISOs indicate otherwise.421 rate provision be characterized as According to EEI, the Commission’s 270. Commissioner O’Donnell asserts imposing utility-style regulation on the variable rate proposal will help ensure that the Montana Public Service QFs themselves. that the variable energy rate more Commission has addressed concerns 264. Finally, we agree with Harvard accurately reflects the electric utility’s about overpayments by shortening QF Electricity Law that state regulators may actual avoided cost of energy so that contract length from 25 years to 15, not change rates in existing QF contracts rates for customers are just and which has resulted in litigation or other existing LEOs.415 By its terms, reasonable. EEI describes this change as currently pending before the Montana the variable energy avoided cost important for states, especially those in Supreme Court. Commissioner provision adopted in this final rule RTO/ISO markets, that elect to have the O’Donnell asserts that, because the applies only prospectively to new avoided cost rate set at LMP. energy component of an avoided cost contracts and new LEOs entered into rate reflects the price at which the 267. EEI also submitted with its after the effective date of this final rule. purchasing electric utility could comments a study performed by Nothing in the final rule, including in purchase power on the open market, Concentric Energy Advisors showing this preamble, should be read as there is no need to fix that fluid energy that the avoided cost rates in the sample sanctioning the modification of existing component for as long as 25 years.422 fixed-rate QF contracts and LEOs. of solar and wind QF contracts they 271. Competitive Enterprise asserts reviewed generally exceeded rates that d. Whether the Current Approach Has that long-term fixed price rates ‘‘serve are realized in competitive markets for only to reward certain financial Resulted in Payments to QFs in Excess solar and wind energy. According to of Avoided Costs investors at the expense of consumers, that report, the total overpayment who are forced to pay inflated rates for i. Comments in Support of NOPR ranged between $2.7 billion and $3.9 electricity’’ and insists that utilities Proposal billion. Several other commenters also should only be required to purchase 265. Duke Energy states that its cited the Concentric Energy Advisors from resources that are needed and experience shows the Commission’s report for the proposition that competitively priced.423 original assumption that consumers nationwide have overpaid 417 ii. Comments in Opposition to NOPR overestimations and underestimations for QF contracts between 2009–2018. Proposal will balance out over time was Berkshire Hathaway represents that incorrect. From 2012 to 2017, Duke PURPA contracts held by PacifiCorp 272. Harvard Electricity Law observes Energy states that it experienced will cost customers more than $1.2 that the Commission’s examples of explosive growth in solar QF contracts, billion above projected market costs contract rates that exceed avoided costs and entered into at a time of rapidly over the next 10 years.418 calculated years prior illustrate the declining natural gas prices—which 268. Massachusetts DPU argues that a general proposition that ‘‘energy drove down Duke Energy’s avoided 10-year, fixed energy rate based on forecasts have a manifest record of costs. Duke Energy states that, as of July current New England wholesale energy failure.’’ 424 Harvard Electricity Law 1, 2019, it has almost 4,000 MW of QF market prices is highly likely to diverge notes, however, that in issuing Order power under contract and in from actual energy market prices over No. 69, the Commission recognized that commercial operation. Duke Energy the ten-year contract term and could industry changes are difficult to claims the total estimated financial significantly harm ratepayers.419 Mr. forecast, but the Commission obligation on Duke Energy’s retail and Transeth represents that Consumers nonetheless concluded in Order No. 69 wholesale customers to pay for this QF Energy’s QF contracts are priced that the possibility that consumers power is approximately $4.66 billion between 30 to 50% higher than their would be harmed by high rates was over the next approximately 15 years. If current market value.420 outweighed by the Commission’s duty the contracts had been permitted to to encourage QFs.425 Harvard Electricity 269. APPA supports the variable contain rates that mirrored the utilities’ Law further claims that the repeal of the energy rate proposal because the declining incremental costs either to fixed-price rule is not necessary to discrepancy between administratively generate that electric energy itself or to protect consumers from rates in future set, locked-in, long-run avoided costs purchase alternative electric energy, i.e., contracts.426 Harvard Electricity Law and actual market prices for the Duke Energy’s ‘‘actual current avoided argues that the Commission’s rules do purchase of equivalent energy can be costs,’’ Duke Energy asserts that the not require an annual matching between enormous, as demonstrated by the contracts would be valued at $2.4 avoided costs and rates, nor prevent evidence submitted in the Technical billion. Duke Energy claims that, among states from setting declining avoided Conference. According to APPA, were the factors contributing to this costs (which Order No. 69 explicitly continued development of the IPP and overpayment of $2.26 billion for the condones).427 renewable industries in jeopardy, the remainder of these QF contracts, the 273. Several commenters argue that Commission might have grounds to primary factor has been the requirement the NOPR’s assertion of artificially high conclude that enabling QFs to lock in to offer fixed avoided cost energy rates avoided cost rates is unsupported or during a period of rapidly declining energy payments over the course of their agreement is needed in order to bolster energy prices.416 421 APPA Comments at 16. 266. EEI argues that relying on certain these resources, but the growth in the 422 Commissioner O’Donnell Comments at 2. avoided cost methods, such as the costs 423 Competitive Enterprise Comments at 2. of a proxy unit at a fixed point in time, 417 Alliant Energy Comments at 7–8; Conservative 424 Harvard Electricity Law Comments at 24 Action Comments at 1; Duke Energy Comments at (citing Vaclav Smil, Energy at the Crossroads: may result, and has resulted, in the over 5–7; Mr. Moore Comments at 2; Mr. Transeth Global Perspectives and Uncertainties, Mass. Inst. estimation of future energy prices, Comments at 2. Tech., 2003, at 121, 145–149). 418 Berkshire Hathaway Comments at 5. 425 Harvard Electricity Law Comments at 24. 415 Harvard Electricity Law Comments at 23 419 Massachusetts DPU Comments at 7 (citing 426 Id. at 23. (citing API, 461 U.S. at 414). NOPR, 168 FERC ¶ 61,184 at 40). 427 Id. at 23–24 (citing Order No. 69, FERC Stats. 416 Duke Energy Comments at 6. 420 Mr. Transeth Comments at 2. & Regs. ¶ 30,128 at 30,881).
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relies on flawed data and analysis.428 ‘wouldn’t put a whole lot of weight in declining federal tax credits.441 For example, NIPPC, CREA, REC, and [Duke’s estimate].’ ’’ 435 Furthermore, Resources for the Future OSEIA argue that the Commission relied 277. GridLab attacks the conclusions attributes these cost declines to the on flawed data and analysis by using of the Concentric Report, raising two recent U.S. natural gas boom and points actual market prices that resulted after principal arguments. First, according to out that this decline is therefore not substantial QF penetration (which they GridLab, QF contracts are executed in likely to continue.442 sPower similarly assert has reduced power prices).429 non-competitive markets where utilities argues that recent energy price declines 274. Public Interest Organizations do not perform competitive will not necessarily continue, especially claim that the NOPR’s evidence of solicitations. If QF avoided cost pricing given expiring tax credits and additional overestimations is based on a selective is higher than prices set through tariffs.443 choice of years reflecting general competitive bidding, GridLab asserts 280. Several commenters assert that wholesale price declines, in which QF that is because the utility’s production the risk of overpayments to QFs should contracts were executed just before costs are higher than competitive be compared to the alternative unforeseen natural gas price declines.430 prices.436 Second, GridLab asserts that generation sources used by the Public Interest Organizations argue that Concentric has compared two datasets utility.444 For example, ELCON claims these recent electricity price that are different in several ways, most that critics who assert that QFs are overestimations are not unique to QFs notably project size—with larger ‘‘locking-in’’ consumers to artificially and can be explained by general projects enjoying economies of scale high rates must acknowledge that utility declines in natural gas prices since the that result in lower costs. According to procurement does exactly the same via adoption of hydraulic fracturing and the GridLab, the difference in project size the pre-approval process, sometimes for 2007–2009 recession.431 and its impact on cost is a significant even longer durations. ELCON argues 275. Public Interest Organizations factor that could account for the whole that QFs can only benefit consumers by dispute Alliant’s asserted of the reported increase on price.437 competing on a level playing field with comparable terms and conditions.445 overestimation by claiming that Alliant 278. NIPPC, CREA, REC, and OSEIA likely would have procured non-QF argue that it was unreasonable for the North Carolina Commission Staff energy at the same price and further Commission in the NOPR to assume that similarly asserts that the risk of point out that Alliant does not disclose electricity price declines are permanent, overpayment to QFs should be the data upon which it relies.432 Public given recent integrated resource plans considered in the context of a utility’s Interest Organizations assert that the (IRP) in the Northwest predicting long-term commitment to build plants Commission similarly erred in relying significantly increased electricity where ‘‘generation decisions are based on EEI’s description of overestimations demand and market prices at the Mid- upon uncertain forecasts that could result in ratepayers bearing the same of avoided costs in PacifiCorp’s QF C and Palo Verde hubs.438 NIPPC, type of forecast risk from utility plants contracts because PacifiCorp only CREA, REC, and OSEIA represent that as they do from QFs.’’ 446 compares those prices to the Mid-C hub electricity prices will climb significantly 281. According to Solar Energy and does ‘‘not contain an analysis of the in the Northwest. NIPPC, CREA, REC, Industries, the risk from utility long-term balancing of its forecasted and OSEIA also assert that 100% generation construction is allocated to avoided energy rates with actual renewable or non-emitting generation 433 ratepayers for the life of these assets avoided energy costs.’’ Public mandates and increased electrification regardless of ongoing changes in energy Interest Organizations contend that this of transportation could substantially prices, while PURPA was designed to comparison implies that PacifiCorp increase electricity demand. NIPPC, shift this risk away from ratepayers. would have relied entirely on the Mid- CREA, REC, and OSEIA contend that Solar Energy Industries state that there C hub for all of its needs but for the QF fixed-price QF contracts protect 434 is no evidence that ratepayers are contracts. consumers from the potential for future harmed by long-term QF contracts any 276. SC Solar Alliance contests Duke rising prices, market volatility, market more than other long-term contracts or Energy’s estimate of $2.26 billion in risk, and project risk.439 utility recovery of generation assets in overpayments for QF power. According 279. Resources for the Future reasons to SC Solar Alliance, ‘‘an expert witness their rate base. Solar Energy Industries that ‘‘while fixed prices determined state that, even though solar prices have for South Carolina’s Office of Regulatory [five to ten] years ago would likely Staff, which represents the interests of declined over time, solar QFs should exceed current average market prices, not be penalized for utility failures to the using and consuming public in that may not be true for fixed prices proceedings before the South Carolina update their avoided cost calculations to determined either more recently or in keep pace with such declines.447 Commission, recently testified that 440 the future.’’ Resources for the Future 282. The DC Commission states that, Duke’s estimation of ‘overpayments’ to states that, contrary to the NOPR, there QFs was not reliable and that he with respect to the fact that long-term is no consensus that wind and solar contracts (e.g., 20 years) using fixed generation costs will continue to decline avoided energy costs could create 428 NIPPC, CREA, REC, and OSEIA Comments at because any capital cost declines will be 30; Public Interest Organizations Comments at 39– stranded costs potentially due to 40; Public Interest Organizations Comments at 43; relatively modest and will be offset by Solar Energy Industries Comments at 34–36. 441 Id. at 5. 429 NIPPC, CREA, REC, and OSEIA Comments at 435 SC Solar Alliance Comments at 7 (quoting 442 Id. at 4. 30–31. Public Service Commission of South Carolina, 443 sPower Comments at 10–11. 430 Public Interest Organizations Comments at 39– Docket No. 2019–185 & 186–E, Hearing Transcript 444 ELCON Comments at 22; North Carolina 40. Vol. 2 at 596, lines 6–21 (Horii Test.)) (attached as Commission Staff Comments at 2–3; NIPPC, CREA, 431 Id. at 47–50. Appendix 1 to SC Solar Alliance Comments). REC, and OSEIA Comments at 31; Public Interest 432 Id. at 40–41. 436 GridLab Comments at 1–2. Organizations Comments at 40, 43; Solar Energy 433 Id. at 41 (citing NOPR, 168 FERC ¶ 61,184 at 437 Id. at 4. Industries Comments at 36–38. P 64 n.101 (citing EEI Supplemental Comments, 438 NIPPC, CREA, REC, and OSEIA Comments at 445 ELCON Comments at 22. Docket No. AD16–16–000, attach. A at 3–4 (June 25, 33–34. 446 North Carolina Commission Staff Comments at 2018))). 439 Id. at 34–36. 2–3. 434 Id. 440 Resources for the Future Comments at 4. 447 Solar Energy Industries Comments at 36–38.
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inaccurate projections, the chance of 285. While some commenters reflected in the QFs’ fixed contract rates creating stranded costs is substantially challenge the idea that avoided cost that remained at their previous levels. reduced when the most up-to-date data energy rates in QF contracts and other 288. Similarly, arguments from regarding avoided energy costs is used. LEOs have exceeded actual avoided commenters that electric utilities also The DC Commission states that, if the costs, their arguments largely either based resource acquisitions on incorrect contract length is permitted to be concede that overestimations have forecasts of natural gas prices 456 ignore flexible, the possibility of stranded costs occurred while arguing that such a key distinction between utility rates would be significantly reduced for overestimations impacted purchasing and fixed QF rates. Electric utilities may shorter term contracts.448 The DC electric utilities just as much as QFs, or have relied on incorrect natural gas Commission states that, without the attempt to argue that such price forecasts to justify the timing and worry of stranded costs, there is no need overestimations were temporary or type of their resource acquisitions, as to eliminate the fixed price contract unusual. For these reasons, they assert commenters assert. But once an electric option for QFs.449 that the Commission should not utility resource decision was made, conclude that historical overestimations their cost-based rate regimes typically iii. Commission Determination of avoided cost require a change to the obligated the electric utility eventually 283. As explained above, the NOPR current PURPA Regulations requiring to pass through to customers any energy proposal to give states the flexibility to states to allow QFs to fix their avoided cost savings realized as a result of require variable energy pricing in QF costs energy rates for the term of their declining natural gas and other fuel prices, as well as any energy cost contracts and other LEOs, instead of contracts. These arguments do not cause savings due to lower purchased power providing QFs the right to elect fixed us to reconsider our determination, for rates resulting from the decline in energy prices, was based on the the reasons explained below. natural gas prices. By contrast, once QF Commission’s concern that, at least in 286. First, Harvard Electricity Law’s avoided cost energy rates were fixed some circumstances, long-term fixed citation to the Commission’s original based on now-incorrect (and now-high) avoided cost energy rates have been determination in Order No. 69 that it natural gas price forecasts, those energy well above the purchasing utility’s was not necessary to provide for rates remained fixed for the term of the avoided costs for energy—a result variable avoided cost energy rates QFs’ contracts and LEOs. Therefore, prohibited by PURPA section 210(b). carries little weight.453 The purpose of unlike fixed avoided cost energy rates in And the record evidence demonstrates the NOPR was to reconsider the QF contracts and LEOs, cost-based just that, i.e., that QF contract and LEO Commission’s determinations made in Order No. 69 in light of changes in electric utility energy rates declined as prices for energy can exceed and have the cost of natural gas and other fuels exceeded avoided costs for energy circumstances and additional evidence that was not available to the and purchased power declined. without any subsequent balancing out. 289. We also disagree with Public Commission when it issued Order No. In addition to the examples presented in Interest Organizations’ assertions that it 69 in 1980. The record evidence cited the record of the Technical Conference was improper to have used competitive above demonstrates that, contrary to the that were cited in the NOPR, market hub prices to determine whether Commission’s finding in 1980, commenters have provided additional fixed QF contract and LEO prices examples of such overpayments, as overestimations and underestimations resulted in overpayments as compared described above.450 Such evidence has of future avoided costs may not even 454 to electric utilities’ actual avoided persuaded us that it is necessary to give out. Consequently, the Commission’s costs.457 We recognize that the states the flexibility to address QF determination in 1980 does not competitive market hub prices used in contract and LEO rates for energy that preclude the Commission from changing the comparisons may not have precisely exceed avoided costs for energy, while the rule adopted at that time. reflected the avoided energy costs of all at the same time still allowing states the 287. We agree with Public Interest electric utilities located in the same flexibility to continue requiring long- Organizations that the recent electricity region as the competitive market hub. term fixed avoided cost energy rates in price overestimations were not unique However, as explained above in the QF contracts and other LEOs when such to QFs and can be explained by general discussion of the use of Market Hub treatment is appropriate. declines in natural gas prices since the Prices to determine avoided energy adoption of hydraulic fracturing and the costs, competitive market prices in 284. As Harvard Electricity Law 455 concedes, the examples of QF contract 2007–2009 recession. But that is general should reflect the marginal rates that exceed avoided costs that are precisely why the estimates of avoided avoided energy costs of utilities with in the record illustrate the general costs reflected in the QF contracts and access to such markets. Certainly, those proposition that ‘‘energy forecasts have LEOs were incorrect and why the markets generally reflect the marginal a manifest record of failure.’’ 451 It is this resulting fixed avoided cost energy rates cost of energy in the region.458 The ‘‘manifest record of failure’’ including reflected in such QF contracts and other evidence in the record that the failure LEOs resulted in QF rates well above 456 ELCON Comments at 22; North Carolina has been at the expense of consumers, utility avoided costs in violation of Commission Staff Comments at 2–3; NIPPC, CREA, PURPA section 210(b); the precipitous REC, and OSEIA Comments at 31; Public Interest that drives us to make the change Organizations Comments at 40, 43; Solar Energy adopted in the final rule.452 decline in natural gas prices caused a Industries Comments at 36–38. corresponding reduction in utilities’ 457 Public Interest Organizations Comments at 40– energy costs, and thus in their energy 41. 448 DC Commission Comments at 8. 458 A review of recent Mid-C Hub daily spot 449 avoided costs but this decline was not Id. prices (from Intercontinental Exchange (ICE) 450 See Duke Comments at 6; Idaho Power https://www.eia.gov/electricity/wholesale/, Comments at 10–11; Portland General Comments at 453 Id. at 23–24 (citing Order No. 69, FERC Stats. indicates that they reflect the marginal cost of 5; NOPR, 168 FERC ¶ 61,184 at P 64 n.101. & Regs. ¶ 30,128, at 30,881). energy in that area since they are usually the result 451 Harvard Electricity Law Comments at 24 454 See Duke Comments at 6; Idaho Power of a significant number of trades (averaging 54 per (citing Vaclav Smil, Energy at the Crossroads: Comments at 10–11; Portland General Comments at day), counterparties (averaging 16 per day), and Global Perspectives and Uncertainties, Mass. Inst. 5; NOPR, 168 FERC ¶ 61,184 at 64 n.101. trading volume (averaging 26,714 MWh/day), which Tech., 2003, at 121, 145–149). 455 Public Interest Organizations Comments at 47– usually exceed those of the NP–15 trading hub, an 452 See, e.g., supra P 254 & note 403. 50. active Western trading hub in Northern California
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magnitude of the differences between 292. However, the expert testimony state that removing QFs’ right to a fixed the market hub prices and the QF cited by the SC Solar Alliance, that the energy rate would flout Congressional contract and LEO prices provides solid witness ‘‘wouldn’t put a whole lot of intent that PURPA encourage QF evidence that the QF contract and LEO weight in [Duke’s estimate],’’ 461 does development because fixed rates are prices used in the comparison were well not address Duke’s calculation of past necessary to attract QF financing.465 above actual avoided energy costs at the overpayments. Rather, the witness was Harvard Electricity Law states that time the energy was delivered by the answering a question regarding the Congress’s mandate to encourage QFs is QFs, even if the exact magnitude is potential for overpayments ‘‘[f]or going not contingent on industry conditions unclear. forward solar,’’ i.e., future overpayments and does not expire.466 as a result of the new fixed avoided cost 290. We acknowledge that energy rates being considered by the South ii. Commission Determination prices may increase in the future, as Carolina Commission that were the several commenters point out.459 subject of the expert witness’ 295. As explained above in Section However, as noted by Harvard testimony.462 The same witness IV.A.1, the statutory requirement that Electricity Law, ‘‘energy forecasts have acknowledged the past overpayments the Commission’s PURPA Regulations a manifest record of failure.’’ 460 made by Duke Energy, which he encourage QFs remains, but it is Moreover, the fact that energy prices attributed to ‘‘drops in natural gas prices bounded by the statutory provision in may increase in the future does not that no one could’ve foreseen.’’ 463 It is PURPA section 210(b) that QF rates may eliminate the risk that fixed avoided these overpayments due to unforeseen not exceed a purchasing utility’s cost energy rates could still be above declines in natural gas prices that form avoided costs. Further, as explained actual avoided costs. That is, if the an important basis for the Commission’s above, we have determined, based on actual increase in energy prices is still determination in this final rule to now lower than the forecasted increase that the record evidence, that it is not give states the flexibility to require necessarily the case that overestimations would form the basis of the fixed variable avoided cost energy rates in QF avoided cost energy rate, then the fixed and underestimations of avoided energy contracts and LEOs. costs will balance out. Consequently, a avoided cost energy rate will be above 293. With respect to the criticisms of fixed energy rate in a QF contract or actual avoided energy costs. Giving the Concentric Report, we emphasize LEO potentially could violate the states the flexibility to require variable that we have not relied on that report to statutory avoided cost cap on QF rates. avoided cost energy rates in QF support the variable energy avoided cost contracts and in other LEOs will allow provision adopted in the final rule. It is 296. The Commission’s PURPA states to better ensure that avoided cost not clear that the lower cost of the Regulations continue to encourage the energy payments made to QFs will more competitively priced renewable development of QFs by, among other accurately reflect the purchasing resources identified in the report things, allowing a state to vary the rate utility’s avoided costs regardless of represents the avoided costs of the paid to the QF over time but in a way whether energy prices are increasing or purchasing utilities that entered into the that satisfies the rate cap established in declining. We also note that, if energy QF contracts at fixed rates for renewable PURPA section 210(b). In this way, the prices do in fact increase, variable resources under PURPA. Therefore, it is QF can obtain a higher rate when the avoided cost energy pricing would not clear that the difference in costs utility’s avoided costs increase, and protect and even benefit the QF itself, as identified by Concentric can be ascribed ratepayers are not paying more than the it would not be locked into a fixed to the fixed rates in the QF contracts or utility’s avoided costs when prices energy rate contract or LEO that would rather to the fact that the avoided cost decrease. Furthermore, as discussed be below the purchasing electric rates in the QF contracts were based on above, allowing the use of variable utility’s avoided energy cost. more expensive non-renewable capacity energy rates may promote longer 291. Although many commenters that was avoided by the purchasing contract terms, which would help utilities. agreed that fixed QF energy rates were encourage and support QFs.467 It higher than actual avoided energy costs e. Whether the Proposed Change Would therefore is consistent with PURPA in at least some instances, challenges Violate the Statutory Requirement that section 210(b), as well as the obligation were raised against both Duke Energy’s the PURPA Regulations Encourage QFs imposed by PURPA section 210(a) to estimate that its fixed QF contract rates i. Comments revise the Commission’s PURPA were $2.6 billion above market costs, Regulations ‘‘from time to time,’’ to 294. Several commenters argue that and the Concentric Report’s comparison provide the states the flexibility to of QF fixed rates for wind and solar the NOPR’s variable rate proposal is require that QF contracts and other facilities with the cost of wind and solar inconsistent with PURPA’s mandate LEOs implement variable avoided cost projects with competitive, non-PURPA that the PURPA Regulations energy rates in order to prevent contracts. ‘‘encourage’’ the development of QFs.464 Southeast Public Interest Organizations payments to QFs in excess of the purchasing electric utility’s avoided in the CAISO footprint (averaging 6 trades per day, 4 counterparties per day, and 2,756/MWh per day). 461 SC Solar Alliance Comments at 7 (quoting, energy costs. PURPA section 210(b) The prices for Mid-C ranged between an average of Public Service Commission of South Carolina, prohibits the Commission from approximately $16/MWh high price and $13/MWh Docket No. 2019–185 & 186–E, Hearing Transcript requiring QF rates above avoided costs low price during the recent spring (Mar 19–Jun 20, Vol. 2, Tr. at 596: 6–21 (Horii Test)) (attached as 2020). During this period the index was reported for Appendix 1 to SC Solar Alliance Comments). even if, according to some commenters, 65 trading days for Mid-C and 9 trading days for 462 Public Service Commission of South Carolina, a fixed avoided cost energy rate would NP–15. Docket No. 2019–185 & 186–E, Hearing Transcript provide greater encouragement to QFs 459 NIPPC, CREA, REC, and OSEIA Comments at Vol. 2, Tr. 596: 3–4 (Horii Test)) (attached as than a variable avoided cost energy rate. 33–36; Resources for the Future Comments at 4; Appendix 1 to SC Solar Alliance Comments). sPower comments at 10–11. 463 Id. at 593:21–22. 460 Harvard Electricity Law Comments at 24 464 Allco Comments at 9; Con Edison at 3, 4; 465 Southeast Public Interest Organizations (citing Vaclav Smil, Energy at the Crossroads: Harvard Electricity Law Comments at 1; North Comments at 9–10. Global Perspectives and Uncertainties, Mass. Inst. American-Central Comments at 4–6; Southeast 466 Harvard Electricity Law Comments at 1. Tech., 2003, at 121, 145–149). Public Interest Organizations at 9–11. 467 See infra P 349.
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f. Discrimination competitive disadvantage and shifts the for QFs to obtain financing.477 Alliant i. Comments in Support of NOPR consumer burden to more utility builds, states that it is on track to be the third Proposal which have generally been higher cost largest utility owner-operator of wind than merchant builds.472 facilities in the United States, with 1.9 297. Alliant Energy observes that 300. SC Solar Alliance states that GW on its system and in addition is utility-owned generation and traditional utilities often rely on fuel price forecasts increasing the pace of solar resource power purchase agreements (PPAs) are over time to justify rate base approval development in its Wisconsin territory. subject to a demonstration of need and for generation assets that might run Alliant states it therefore does not that traditional PPAs are subject to re- beyond price forecasts. SC Solar believe that the proposed change will evaluation during their term to Alliance argues that allowing utilities slow renewable deployment and determine whether they continue to be this right, but not QFs, holds QFs to a adoption.478 cost-competitive and in the best much higher standard than utilities and 305. Several commenters assert that interests of customers. Alliant Energy therefore is discriminatory.473 PURPA’s must-purchase requirement asserts that, by contrast, QFs are not 301. Commissioner Slaughter argues itself should necessarily afford QF required to demonstrate that their that, by removing the fixed, long-term developers a degree of certainty and projects are needed and that, once a contract option for independent power enables developers to attract capital at contract is executed, it is not subject to producers, the NOPR threatens to 479 468 advantageous terms. The Idaho re-evaluation. hamper the competitiveness of Commission states that, even if ii. Comments in Opposition to NOPR renewable-based energy firms modified as proposed, QF contract Proposal challenging vertically integrated utilities terms would remain superior to in many localities across the country.474 298. Several commenters assert that competitively bid renewable projects the NOPR’s variable avoided cost energy iii. Commission Determination where the energy is not ‘‘must take’’ and rate proposal is discriminatory.469 For curtailment and other reliability 302. The discrimination claims are 480 example, EPSA argues that PURPA parameters are imposed. based on the incorrect assumption that 306. Finadvice and APPA argue that requires the Commission to implement electric utilities have not been required regulations that, for rates for electric maintaining a fixed capacity rate, as to lower their energy rates as prices proposed by the Commission, will help utility purchases from QFs, ‘‘shall not have declined. To the contrary, as discriminate against qualifying attract capital and ameliorate any explained above, utilities typically negative effect that the variable energy cogenerators or qualifying small power charge their customers cost-based rates, rate proposal may impose.481 Ohio producers.’’ EPSA describes this and as their fuel and purchased power standard as more restrictive than the Commission Energy Advocate argues, as costs have declined, they typically have evidence that QFs can still flourish FPA’s prohibition against ‘‘unduly been required to provide corresponding discriminatory’’ rates. According to under a variable energy rate, that the reductions in the energy portion of their PJM market has successfully attracted EPSA, the fact that long-term QF rates to their customers.475 Requiring contracts are substantially above new supplies and ensured resource QF avoided cost energy rates to likewise adequacy through fixed capacity and prevailing market prices due to change as purchasing electric utilities’ variable energy rates.482 declining wholesale prices over the avoided energy costs change does not 307. The Idaho Commission states long-term does not justify the variable create a discriminatory difference, but that variable energy prices protect the rate proposal because electric utility- rather puts QF rates on par with utility ratepayer while allowing the QF to owned generation is similarly based on rates. ensure a stream of revenue through a imperfect long-term forecasts of energy 303. Further, we are not changing the longer-term contract. The Idaho prices that oftentimes prove to be too requirement that QF avoided cost Commission affirms that the rapid high. EPSA therefore argues that the energy rates be set at the purchasing growth of non-QF renewable projects NOPR variable rate proposal should not utility’s full avoided energy costs. As and their ability to obtain financing be adopted unless utility-owned assets the Supreme Court held in API, ‘‘the should quell any concerns about a QF’s are also subject to a similar cost full-avoided-cost rule plainly satisfies 470 ability to obtain financing as long as recovery regime. the nondiscrimination requirement.’’ 476 299. sPower describes the NOPR PURPA’s ‘‘must take’’ provision Rather, we are allowing the states the proposal to allow variable rates as remains.483 Commissioner O’Donnell option to now choose to require QF providing a significant advantage to asserts that QFs should bear some avoided cost energy rates that vary with electric utilities over QFs, given that market risk as energy prices rise and fall the purchasing utility’s avoided costs of electric utilities themselves, according in a way that balances risks to all energy, rather than QF avoided cost to sPower, have not had to lower rates parties.484 rates that are fixed for the life of the to consumers as energy prices have 308. EEI argues that PURPA does not QF’s contract or LEO, to ensure the rates declined.471 ELCON asserts that pushing require the Commission or the states to comply with PURPA. more market risk to QFs while utility implement regulations that guarantee a assets remain insulated from markets g. Effect of Variable Energy Rates on creates an investment risk asymmetry. Financing 477 APPA Comments at 16–17; Indiana ELCON claims this puts QFs at a Commission Comments at 6. i. Comments in Support of the NOPR 478 Alliant Energy Comments at 6. Proposal 479 APPA Comments at 16–17; Finadvice 468 Alliant Energy Comments at 6–7. Comments at 2; Idaho Commission Comments at 4; 469 ELCON Comments at 21–22; SC Solar Alliance 304. Several commenters state that Commissioner O’Donnell Comments at 3. Comments at 5–10; sPower Comments at 13; see fixed energy payments are not necessary 480 also ELCON Comments at 22; North Carolina Idaho Commission Comments at 4. Commission Staff Comments at 2–3; NIPPC, CREA, 481 APPA Comments at 16–17; Finadvice 472 REC, and OSEIA Comments at 31; Public Interest ELCON Comments at 21–22. Comments at 2. Organizations Comments at 40, 43; Solar Energy 473 SC Solar Alliance Comments at 5–10. 482 Ohio Commission Energy Advocate Comments Industries Comments at 36–38. 474 Commissioner Slaughter Comments at 4. at 3–4. 470 EPSA Comments at 8–9. 475 See supra PP 40, 122, 288. 483 Idaho Commission Comments at 4. 471 sPower Comments at 13. 476 API, 461 U.S. at 413. 484 Commissioner O’Donnell Comments at 3.
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QF’s financeability. EEI represents that evidence that variable energy prices 313. Several commenters assert that Congress intended QFs to be treated would be fatal to QF development.492 the NOPR lacks evidence on the record similarly to merchant generation and The Idaho Commission states that it to conclude that the variable rate simply required QFs to have non- reduced contract length on large proposal would not affect the ability of discriminatory access. According to EEI, projects to two years because it did not QFs to obtain financing.497 NIPPC, because QFs are not subjected to the interpret the Commission’s current rules CREA, REC, and OSEIA argue that the oversight or regulatory responsibilities to allow for a variable energy rate inside NOPR contained no record evidence applicable to electric utilities, it was not a long-term contract. The Idaho demonstrating how this proposal would expected or intended that QFs be treated Commission states that, because its continue to encourage QFs in a non- the same as electric utilities.485 experience dictated that the longer the discriminatory manner,498 and lacks Similarly, Duke argues that the central contract term, the more inflated the evidence on how QF generation can be design criteria for PURPA rates and avoided cost rate, the Idaho Commission financed without a fixed energy rate.499 terms should be customer indifference, set parameters to balance QF interests Similarly, Harvard Electricity Law just and reasonableness, and non- against utility ratepayer interests. The asserts that repealing the fixed-price discrimination. Duke Energy states that Idaho Commission states that an energy PPA requirement is premised on a design that requires QF financeability rate established at the time of contract irrelevant data and ignores the record, as a criterion will inevitably lead to a formation that provides for ‘‘revisions to and disagrees with the Commission’s QF boom and customer harm.486 Duke the energy rate at regular intervals, demonstration of information on non- Energy further asserts that several consistent with, for example, a QF capacity to show that QF factors affect financeability and that, purchasing electric utility’s [integrated development no longer relies on therefore, claims by QFs that they resource planning (IRP)] to reflect contracts with fixed energy rates.500 require fixed energy payments for updated avoided cost calculations’’ 314. Public Interest Organizations financing purposes should be would allow states to consider longer assert that testimony from Southern rejected.487 term contracts without putting Company, American Forest and Paper 309. EEI claims QFs that require third- ratepayers at risk.493 NorthWestern Association, and Solar Energy party financing will still be able to represents that the Montana Industries, upon which the NOPR relies, obtain financing if the Commission Commission has lowered the length of states that non-QF renewable PPAs adopts the proposals in the NOPR, QF contracts from 25 to 15 years in generally entail fixed energy rates rather because they are additional options, in response to the current requirement that than variable energy rates.501 In addition to those currently being used QFs are entitled to fixed avoided cost particular, Public Interest Organizations by states, that will be available to rates for energy in their contracts and a state that testimony from Solar Energy determine avoided costs. EEI maintains concern that rates calculated at the time Industries, refers to reliance on fixed that a QF developer will be able to a contract is signed are likely to change rates for energy and/or capacity without obtain financing under any of the over the life of that contract.494 describing them as alternatives but options, provided it can build a cost- rather ‘‘an acknowledgement that a efficient plant that can profit at an ii. Comments in Opposition to the [power purchase agreement] may avoided cost rate.488 EEI claims that NOPR Proposal provide fixed capacity in addition to independent power producers lacking 312. Many commenters assert that the fixed energy revenue, not a suggestion the certainty of the mandatory purchase NOPR’s variable energy rate proposal that a QF can be developed without a obligation are building most renewable will result in QFs being unable to obtain predictable energy revenue stream.’’ 502 generation today because merchant financing.495 Several commenters also 315. Allco describes programs in power plants may be developed and assert that it is discriminatory that California, Massachusetts, Connecticut, financed using a variety of hedging and utilities and non-QF generators can rate- and Vermont that offer standard QF risk management tools, such as base long-term investments and recover contract programs with variable energy commodity hedges, that lock in cash actual operating costs, while the NOPR’s rates, none of which, according to Allco, flows and facilitate construction at the proposed rules would deprive QFs of a have led to the construction of solar outset.489 reasonable ability to forecast their cost projects.503 Allco claims that these 310. APPA states that much of the recovery with no guarantees.496 programs prove that, without the ability renewable development that has to obtain a fixed long-term forecasted occurred over the past 20 years has 492 Idaho Commission Comments at 4. rate, QF solar energy development will taken place within RTO/ISO footprints 493 Id. (citing NOPR, 168 FERC ¶ 61,184 at P 5 n.5). and therefore is largely unaided by NIPPC, CREA, REC, and OSEIA Comments at 36– 494 PURPA obligations.490 NorthWestern Comments at 6–7. 37; Public Interest Organizations Comments at 6–7; 311. Duke Energy states that concern 495 Allco Comments at 9; AllEarth Comments at Solar Energy Industries at 29–30. 2; Biogas Comments at 2; BluEarth Comments at 2; about the potential for fixed avoided 497 NIPPC, CREA, REC, and OSEIA Comments at Biological Diversity Comments at 8; Commissioner 29, 46; Harvard Electricity Law Comments at 22, cost contract rates exceeding actual Slaughter Comments at 4; Con Edison Comments at 25–27; Public Interest Organizations Comments at avoided costs at the time of delivery 3, 4; Covanta Comments at 7–8; DC Commission 6–7, 33–35. Comments at 6–8; Distributed Sun Comments at 1; have led both North Carolina and South 498 NIPPC, CREA, REC, and OSEIA Comments at EPSA Comments at 2; Energy Recovery at 4; 29. Carolina to enact laws placing limits on Harvard Electricity Law Comments at 5; 499 the length of QF contracts.491 The Idaho Massachusetts AG Comments at 8–9; New England Id. at 46–48. Commission states that there is no Hydro Comments at 8; NIPPC, CREA, REC, and 500 Harvard Electricity Law Comments at 22, 25 OSEIA Comments at 37–38; North Carolina DOJ (citing NOPR, 168 FERC ¶ 61,184 at PP 69–70, 76). Comments at 3, 6; North American-Central 501 Public Interest Organizations Comments at 33– 485 EEI Comments at 35. Comments at 4–6; Public Interest Organizations 35 (citing NOPR, 168 FERC ¶ 61,184, at P 70 n.114 486 Duke Energy Comments at 17–18. Comments at 6–7; Resources for the Future (citing Tech. Conference, Docket No. AD16–16–000, 487 Id. at 13. Comments at 6–7. SC Solar Alliance Comments at Tr. at 153, 200 (filed June 30, 2016))). 488 EEI Comments at 35–36. 5–7; Southeast Public Interest Organizations 502 Id. at 35 (citing NOPR, 168 FERC ¶ 61,184, at 489 Id. at 36. Comments at 9–11; State Entities Comments at 2– P 70 n.115 (citing Solar Energy Industries 490 APPA Comments at 16–17. 3; Two Dot Wind Comments at 11–13. Comments, Docket No. AD16–16–000, at 3 (filed 491 Duke Energy Comments at 9; LG&E/KU 496 Allco Comments at 9; Commissioner Slaughter June 30, 2016))). Comments at 4. at 4; Harvard Electricity Law Comments at 5; 503 Allco Comments at 10.
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not exist.504 Southeast Public Interest may present different financing hedging instrument to finance their Organizations assert that Southeastern challenges as compared to non-QF projects. Solar Energy Industries further states with fixed QF energy rates have natural gas fired capacity.513 Similarly, states that QFs outside RTO/ISO seen vigorous QF development, while Public Interest Organizations argue that, markets without a fixed energy rate Southeastern states with variable energy unlike independent power producer would be unable to finance their rates have seen virtually no QF natural gas generators with fixed projects because they would have no development, undermining the capacity payments and variable energy access to such hedging mechanisms.521 Commission’s assertion that QFs can be costs, renewable QFs rely on fixed Solar Energy Industries states that the financed without fixed energy rates.505 energy payments to cover their capital NOPR failed to consider which markets 316. Covanta and Energy Recovery costs given their own nominal variable offer financial products, whether these state that the NOPR’s variable rate energy costs.514 financial products are available to QFs proposal would have an especially 319. NIPPC, CREA, REC, and OSEIA outside RTOs/ISOs, and whether these negative effect on Waste to Energy state that the financeability of products will be sufficient to provide facilities.506 Covanta states that, because generation with fixed capacity prices financing to QFs.522 Waste to Energy depends on finite local and variable energy prices inside RTOs/ 323. Solar Energy Industries states tax resources, a loss in energy revenue ISOs is irrelevant to regions that lie that financing for QFs differs from due to price variability cannot be easily outside of RTOs/ISOs.515 NIPPC, CREA, financing for fossil fuel generators replaced.507 Covanta states that, without REC, and OSEIA criticize the NOPR’s because much of the cost of installation adequate QF pricing and multi-year reliance on an independent power is incurred up-front, with virtually no contracts (and consistent, predictable producer natural gas turbine’s variable costs. Solar Energy Industries pricing throughout the life of the financeability outside the RTO/ISO states that, because of this difference, contract), local governments may be context as irrelevant to QFs because financiers ‘‘examine the QF’s projected forced to close their Waste to Energy these natural gas turbines receive fixed revenue stream to ensure that the facilities prematurely, to minimize loss capacity payments and variable energy revenue stream is sufficient to recover and stranding that investment.508 payments to account for the fluctuating the installed costs plus a competitive Energy Recovery states that the inability price of fuel; whereas a QF would need return.’’ 523 Solar Energy Industries to secure suitable rates through a long- a sufficient fixed capacity payment to reasons that QFs must therefore know in term contract has closed seventeen support financing and an energy rate advance their facility’s energy and Waste to Energy facilities in the last that removes market risk.516 capacity values and obtain a legally fifteen years.509 320. NIPPC, CREA, REC, and OSEIA enforceable contract that fits into 317. NIPPC, CREA, REC, and OSEIA state that the NOPR’s reference to common underwriting models.524 state that the NOPR’s anecdotal reliance hedging instruments to reduce risks 324. North Carolina DOJ asserts that on tax incentives to encourage QF from fluctuating prices is irrelevant.517 allowing avoided cost energy prices to development is irrelevant because these NIPPC, CREA, REC, and OSEIA state fluctuate could eliminate fixed-price incentives are declining or that hedging makes projects less power sales contracts, thereby making disappearing, thereby requiring QFs to financeable because it increases compensation to QFs more volatile and rely even more on energy rates.510 transaction and compliance costs for discouraging renewable energy NIPPC, CREA, REC, and OSEIA predict small power producer QFs that cannot financing.525 that the NOPR’s proposed rules would afford large legal divisions and trading 325. Distributed Sun agrees with make QF development riskier and floors to employ such hedges.518 Commissioner Glick’s dissent on the would thereby slow the development of 321. Resources for the Future states NOPR that revoking the fixed energy new technologies such as energy that wind projects have used bank price requirement would halt the storage, hydrogen fuels, and other hedges, synthetic PPAs, and proxy construction of most distributed energy 519 advanced renewable energy revenue swaps. Resources for the resources.526 Solar Energy Industries technologies.511 Future claims, however, that these states that it is not aware of a 318. Solar Energy Industries states products would be inaccessible to most meaningful number of QFs that have that financing for QFs differs from wind QFs if fixed energy payments are been constructed using capacity rates financing for fossil fuel generators eliminated. Resources for the Future alone or capacity rates with variable because ‘‘much of the cost of argues that solar QFs would have even energy rates.527 installation is incurred up-front, but less access to such hedging given their 326. Mr. Mattson argues that a once installed, the generation has little, smaller size and high transaction costs. variable rate or a rate based on a 512 if any, variable cost.’’ Likewise, Resources for the Future states that QFs projected stream of revenues during the Harvard Electricity Law observes that under 5 MW in RTO/ISOs and QFs contract are not long-term contracts. Mr. wind and solar QFs, for example, have outside of RTO/ISOs thus would be Mattson argues that this violates 520 higher capital costs, lower operating unable to obtain financing. legislative intent and precedent and is costs, and provide energy intermittently, 322. Solar Energy Industries states not viable, suggesting that PURPA and therefore have characteristics that that QFs in RTO/ISO markets without a requires avoided cost data to be kept by fixed energy rate would require a a utility for public inspection.528 504 Id. at 9–11. 327. Western Resource Councils 505 Southeast Public Interest Organizations 513 Harvard Electricity Law Comments at 26. Comments at 9–11, 15–16. 514 Public Interest Organizations Comments at 33– represents that PURPA, in the rural 506 Covanta Comments at 7–8; Energy Recovery 34. Comments at 1, 4. 515 NIPPC, CREA, REC, and OSEIA Comments at 521 Solar Energy Industries Comments at 30. 507 Covanta Comments at 7–8. 42–43. 522 Id. at 31. 508 Id. at 8. 516 Id. 523 Id. 509 Energy Recovery Comments at 3. 517 Id. at 44–45 (citing NOPR, 168 FERC ¶ 61,184 524 Id. 510 NIPPC, CREA, REC, and OSEIA Comments at at P 72 & n.117). 525 North Carolina DOJ Comments at 3. 40–41. 518 Id. at 45–46. 526 Distributed Sun Comments at 3. 511 Id. at 41–42. 519 Resources for the Future Comments at 6. 527 Solar Energy Industries Comments at 28. 512 Solar Energy Industries Comments at 30. 520 Id. at 6–7. 528 Mr. Mattson Comments at 26.
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Northern Plains and Rocky Mountain defined as 20 years or longer, be costs rather than providing for rates that West, is the only vehicle for small available to QFs at their discretion.538 guarantee the recovery of a QF’s costs. businesses to obtain project financing 332. CARE notes that a purchasing The legislative history confirms that and that variable rates undermine the utility’s fixed capacity value may be Congress did not intend to guarantee QF certainty of QFs obtaining financing.529 zero if the state determines that the financing. As stated in the PURPA 328. Public Interest Organizations electric utility has no need for Conference Report, ‘‘the Conferees assert that the NOPR has no basis to additional capacity resources. In that recognize that [QFs] are different from speculate that the Idaho Commission circumstance, there would be no fixed electric utilities, not being guaranteed a shortened contract lengths to two years element in an avoided cost contract, rate of return on their activities because of the fixed rate requirement or which CARE believes would be generally or on the activities vis-a-vis that it would provide longer contracts if inconsistent with the Commission’s the sale of power to the utility and it could require variable energy rates.530 rationale justifying variable energy rate whose risk in proceeding forward in the 539 According to Public Interest contracts. EPSA similarly argues that, [QF] enterprise is not guaranteed to be Organizations, the fact that no solar and as noted in the NOPR, an electric utility recoverable.’’ 545 wind QFs have been developed since is not required to pay for QF capacity 336. Notwithstanding that PURPA the Idaho Commission set a two year that the state has determined is not does not guarantee QF financeability, contract length, even while they are needed. EPSA claims that the variable the Commission believes that the currently entitled to fixed rates, shows rate proposal therefore would create variable avoided cost energy rate option that allowing variable rates will further substantial uncertainty for QF implemented by this final rule will still discourage wind and solar QF developers and investors in non-ISO/ allow QFs to obtain financing. 540 337. Before addressing specific development.531 RTO regions. 333. American Biogas argues that comments on this issue, however, we 329. sPower argues that, even with LMP prices are not sufficient to sustain reiterate that we are not eliminating long-term contracts, QFs will not be existing biogas projects or to increase fixed rate pricing for QFs. Under this viable without fixed energy rates and their number.541 Several commenters final rule, QFs will continue to be able explains that, if the Commission seeks state that LMP cannot sustain QFs in to require fixed avoided cost capacity to encourage states to offer longer general.542 rates in their contracts and LEOs. contract terms, it should just require 334. NIPPC, CREA, REC, and OSEIA Capacity costs, as relevant here, include 532 longer terms. argue that the NOPR proposal to base the cost of constructing the capacity 330. The DC Commission states that, QF pricing on LMP or Western EIM will being avoided by purchasing utilities as in the jurisdictions where the contract limit competition, because QFs will be a consequence of their purchases from length has been adjusted to ‘‘short- stuck with no long-term assurance of QFs. As will be discussed below, a term,’’ such as Idaho’s two-year investment recovery, and thus with no combination of fixed avoided cost contract,533 further elimination of the means to finance their projects, while capacity rates and variable energy rates QF fixed price contract option would regulated incumbent utilities will be can provide important revenue streams discourage or eliminate new small able to rate-base their generation assets, that can support the financing of QFs. renewable energy facilities entering the thus guaranteeing long-term recovery of 338. Furthermore, merely because markets, which is not consistent with their investments.543 NIPPC, CREA, QFs have had access to fixed avoided PURPA’s objective of encouraging the REC, and OSEIA maintain that prices for cost energy rates does not mean that construction of renewable generation.534 long-term QF contracts should be set by QFs must have access to such rates to 331. NIPPC, CREA, REC, OSEIA, and reference to long-term price indices or obtain future financing. Up to now, QFs Public Interest Organizations argue that other indicators that, unlike highly- have had the right under the PURPA the fact that states have shortened the variable LMP and Western EIM prices, Regulations to both fixed capacity and length of QF contracts in response to genuinely reflect the long-term costs of fixed energy rates, and we understand fixed energy prices means that the generation avoided by the purchasing that most QFs executing long-term Commission should require a minimum utility.544 contracts have exercised this right. contract length.535 Green Power Commenters insisting that the supports the creation of longer-term iii. Commission Determination Commission cannot allow states the standard contract lengths for both 335. As an initial matter, the option to impose variable avoided cost cogeneration and small power Commission agrees with commenters energy rates without evidence that QFs production facilities.536 Green Power that PURPA does not guarantee QFs a have obtained financing under such recommends that cogeneration rate that guarantees financing. PURPA contract structures 546 are attempting to developers are offered 5, 8, or 10-year only requires the Commission to adopt impose a standard that could never be contracts and that small power rules that encourage the development of satisfied. producers developers are offered 10, 15, QFs; it does not provide a guarantee that 339. In any event, there is ample or 20-year contracts.537 Mr. Mattson any particular QF will be developed or evidence outside of the PURPA context proposes that long-term contracts, profitable. This is evident from the demonstrating that generation projects structure of PURPA, which caps QF with fixed capacity rate-variable energy contracts are financeable. As the 529 Western Resource Councils Comments at 2. rates at the purchasing utility’s avoided 530 Public Interest Organizations Comments at 36. Commission explained in detail in the 531 Id. at 35–38. 538 Mr. Mattson Comments at 7–9. NOPR, since the time of the passage of 532 sPower Comments at 11. 539 CARE Comments at 4 n.7. PURPA a large new independent power 533 DC Commission Comments at 8 (citing NOPR, 540 EPSA Comments at 12. production industry has developed in 168 FERC ¶ 61,184 at P 77). 541 Biogas Comments at 2. 534 Id. 542 BluEarth Renewables Comments at 2; 545 Conf. Rep. at 97–98 (emphasis added). 535 NIPPC, CREA, REC, and OSEIA Comments at Biological Diversity at 8; Covanta Comments at 9; 546 See Solar Energy Industries Comments at 28; 47–48; Public Interest Organizations Comments at Public Interest Organization Comments at 43–44. NIPPC, CREA, REC, and OSEIA Comments at 29, 6–7. 543 NIPPC, CREA, REC, and OSEIA Comments at 46; Harvard Electricity Law Comments at 22, 25– 536 Green Power Comments at 2, 10. 55–56. 27; Public Interest Organizations Comments at 6–7, 537 Id. at 10. 544 Id. at 53. 33–35.
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the United States. Like QFs, evidence and historical data regarding be paid rates above avoided costs in independent power producers sell the financing and construction of order to make certain types of QF power at wholesale, and have no ability significant amounts of independent technologies financeable. If a state to rate-base their facilities or to power production facilities supports the determines that it is necessary to require otherwise recover their costs through Commission’s conclusion that a fixed variable avoided cost energy rates in regulated rates to retail customers, capacity rate-variable energy rate order to avoid paying QFs an above- unlike traditional utilities with structure—which will apply in those avoided cost rate, which is a bedrock franchised service territories and retail states choosing the variable avoided cost requirement of PURPA, then the impact customers. Unlike QFs, however, energy rate option—also will support this may have on facilities not independent power producers have had financing of QFs. financeable with a fixed capacity rate- no right to require utilities to purchase 342. For the reasons described below, variable energy rate contract structure is their power or to impose fixed energy we do not find compelling the concerns a direct result of the requirements of cost pricing in their power sales expressed by some commenters that a PURPA itself.556 Concerns regarding the contracts.547 fixed capacity rate-variable energy rate alleged mismatch between avoided costs 340. The record shows that, even construct may not work for solar and and the costs of renewable technologies without the right to require long-term wind resources, which have high fixed therefore are collateral attacks on the fixed energy rates, non-QF independent capacity costs and minimal variable requirements of PURPA itself, not our power producers nevertheless have been energy costs.551 Similarly, we are not proposed implementation of it. able to obtain financing for large persuaded by comments that point out 345. In the NOPR, the Commission amounts of generation capacity, that energy rates in typical independent noted the availability of various hedging including from renewables. EIA data power production contracts are devices that would allow QFs to fix or shows that, in 2019, approximately 44% designed to recover the cost of a limit the variability of a variable of all energy produced by natural gas- facility’s fuel, whereas variable energy avoided cost energy rate.557 We fired generation in the United States rates would provide no such acknowledge those comments was generated by independently owned guarantee.552 explaining that hedging tools increase capacity.548 Furthermore, EIA data 343. As an initial matter, as we have project expense and may not be demonstrates that net generation of noted, the record demonstrates that the available to all QFs.558 However, the energy by non-utility owned renewable amount of renewable resources being Commission never intended to suggest resources in the United States grew by developed outside of PURPA greatly that hedging is cost-free or that it would almost 700% between 2005 and 2018, exceeds the amount of renewable be appropriate for all QFs. The 553 which speaks to the reality that resources developed as QFs. commenters all agree that hedging is renewable resources are able to acquire Renewable resources developed outside available for at least some QFs.559 For financing even without the right to of PURPA may not have a legal right to such QFs, hedging can help provide require long-term fixed energy rates.549 long-term contracts with fixed energy energy rate certainty if such certainty is Based on this data, we find that the right rates, yet nevertheless have been able to required for financing. To the extent to require counterparties to pay fixed obtain financing. that certainty is required, then the cost energy rates is not essential for the 344. The Commission also disagrees of hedging is a part of the cost of with those commenters who assert that, financing of independent power financing the project that PURPA as a consequence of the above factors, generation capacity. requires QFs to bear. 341. We acknowledge that a number the Commission should ‘‘require[] the 346. Public Interest Organizations cite of different financing mechanisms were variable energy component to be testimony from the Technical structured in a way that removes market Conference stating that Southern used for this independent power 554 generation capacity, not all of which risk from the QF.’’ This argument Company has negotiated non-QF will be available to QFs. Nevertheless, runs directly counter to one of the renewable contracts with fixed energy we understand that a standard rate fundamental premises of PURPA, which rates rather than variable energy 560 structure employed in the electric is that QFs must accept the market risk rates. However, that testimony does industry is a fixed capacity rate-variable associated with their projects by being not support the contention that the energy rate structure, and that many paid no more than the purchasing Commission must provide for fixed independent power production facilities utility’s avoided cost, thereby avoided cost energy rates for QF have been financed based on this preventing utility retail customers from contracts and other LEOs. As the cited subsidizing QFs.555 PURPA does not structure.550 Accordingly, record testimony notes, Southern agreed to allow the Commission to require QFs to contracts with longer terms and with 547 See NOPR, 168 FERC ¶ 61,184 at P 76. fixed energy rates only because the 548 EIA, Electric Power Monthly with Data for are compensated through variable energy rates and December 2018, at tbl. 1.7.B (February 2020), fixed capacity rates, along with whatever ancillary 556 See Connecticut Authority Comments at 14 https://www.eia.gov/electricity/monthly/archive/ service revenues they can earn. (‘‘[C]ontracted QF rates that take into account New february2020.pdf). 551 See Harvard Electricity Law Comments at 26; England market conditions would not deter lenders 549 Id. P 74 (explaining that net generation of Public Interest Organizations Comments at 33–34; and investors. Many QFs have no fuel costs and low energy by non-utility owned renewable resources in Solar Energy Industries Comments at 30. variable costs of production; therefore, it is the United States escalated from 51.7 TWh in 2005 552 NIPPC, CREA, REC, and OSEIA Comments at reasonable to find that these QFs would earn when EPAct 2005 was passed, to 340 TWh in 2018) 42–43. substantial inframarginal rents on energy sales. (citing EIA, Electricity Data Browser, www.eia.gov/ 553 See supra P 240. Further, QFs may be able to sell RECs and/or electricity/data/browser). 554 NIPPC, CREA, REC, and OSEIA Comments at participate in other Connecticut programs.’’). 557 550 American Public Power Association, How New 43. NOPR, 168 FERC ¶ 61,184 at P 72. Generation is Funded (Aug. 29, 2018), https:// 555 See Conf. Rep. at 97–98 (stating that the ‘‘risk 558 NIPPC, CREA, REC, and OSEIA Comments at www.publicpower.org/blog/how-new-generation- in proceeding forward in the [QF] enterprise is not 45–46; Resources for the Future Comments at 6–7; funded (‘‘Beginning in 2015, merchant generation guaranteed to be recoverable’’); accord API, 461 Solar Energy Industries Comments at 30. [in RTOs/ISOs markets] began to increase U.S. at 416 (holding that QFs ‘‘would retain an 559 Id. dramatically from prior years, amounting to 19.3 incentive to produce energy under the full-avoided- 560 Public Interest Organizations Comments at 33– percent of new capacity in 2015, 7.2 percent in cost rule so long as their marginal costs did not 34 (citing NOPR, 168 FERC ¶ 61,184 at P 70 n.114 2016, and 29.1 percent in 2017.’’). In RTOs and exceed the full avoided cost of the purchasing (citing Tech. Conference, Docket No. AD16–16–000, ISOs with capacity markets, merchant generators utility’’). Tr. 200 (filed June 30))).
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renewable energy developers agreed to a submitted in response to the NOPR the energy price at the time of rate that was 50 to 60 percent of the support our analysis. contracting and that utilities publish projected long-term avoided cost.561 349. Further, there is some evidence rates stating the energy, capacity, and 347. Certain commenters expressed that variable avoided cost energy rates environmental attributes of the QF concern that, when a purchasing electric in contracts and LEOs could result in rate.568 utility is not avoiding the construction longer-term contracts.565 To be clear, we or purchase of capacity as a are not finding that the variable avoided ii. Commission Determination consequence of entering into a contract cost energy rate provision in this final 351. Fixed and variable energy rates with a QF, under the NOPR’s proposed rule will necessarily lead to longer term each can provide benefits to electric rules a state could limit the QF’s contracts and LEOs in every state, nor utility customers. These benefits are the contract rate to variable energy does our decision to adopt this converse of each other: Variable avoided payments.562 However, in that event, provision rely on such a finding.566 cost energy rates provide protection to the only costs being avoided by the However, the record supports the customers when energy costs decline, purchasing electric utility would be the conclusion that the variable avoided and fixed avoided cost energy rates incremental costs of purchasing or cost energy rate provision could lead to provide protection to customers when producing energy at the time the energy longer term contracts in at least some energy costs increase. By giving the is delivered.563 Nothing in PURPA or states, and that likelihood provides states the flexibility to choose either the legislative history of PURPA support for the conclusion that QFs will variable or fixed avoided cost energy suggests that the Commission should set be able to obtain financing for their rates in QF contracts and LEOs, the QF rates so as to facilitate the financing projects under this provision if their Commission is giving each state the of new QF capacity in locations where costs are indeed below the purchasing ability to choose the protection that is no new capacity is needed. utility’s avoided costs. best suited for electric customers in 348. In the NOPR, the Commission their state, based on each state’s view of also observed that the variable avoided h. Other Claimed Benefits of Fixed Avoided Cost Energy Rates what the future may hold and the cost energy rate proposal might cause likelihood that variable energy avoided states to make other changes to their i. Comments costs will exceed fixed energy avoided administration of PURPA in ways that 350. Public Interest Organizations costs during the life of a QF contract or would improve the financeability of QF assert that maintaining the requirement LEO. projects. Most notably, states that had to pay QFs fixed rates serves as a hedge 352. We acknowledge that fixed limited the length of contract terms for consumers because QFs, unlike avoided energy cost rates can serve as a because of concerns about utilities, bear their own risks and have hedge against future fuel price increases overpayments for energy might be provided ‘‘billions of dollars’’ in in a way that protects ratepayers, willing to allow longer term contracts if benefits to consumers. Public Interest assuming such price increases actually the contracts have variable avoided cost Organizations assert that eliminating occur. Given that PURPA both places an energy rates. Longer term contracts with QFs’ rights to fixed rate contracts avoided cost cap on QF rates, and fixed avoided cost capacity rates, in ignores these benefits to consumers and requires that such rates must be just and turn, would provide greater revenue puts them at risk.567 Likewise, Solar 564 reasonable to the electric consumers of assurance to QFs. The comments Energy Industries portrays a fixed the electric utility, we find it is energy rate as providing a hedge to a appropriate to provide flexibility to 561 Tech. Conference, Docket No. AD16–16–000, utility that the purchasing electric Tr. at 200 (filed June 30). The Commission notes states to decide how to apportion such that the PURPA Regulations specifically permit QFs utility may use as a revenue stream in risks to their ratepayers in a way that and utilities to agree to rates that differ from what connected markets. Solar Energy ensures QF avoided energy cost rates are the PURPA Regulations require. 18 CFR 292.301(b). Industries nevertheless argues that, in consistent with PURPA’s requirements As the testimony cited by the Public Interest order to encourage QF development, the Organizations suggests, QFs that believe fixed (i.e., by using either fixed or variable energy avoided cost rates are required to obtain Commission must ensure that QFs know avoided cost energy rates to best meet financing are free to offer rate and/or other those requirements). contractual concessions in exchange for a fixed rate. 565 Idaho Commission Comments at 4 (allowing 353. We caution, though, that having 562 CARE Comments at 4 n.7; EPSA Comments at states to set variable QF energy avoided costs 12. ‘‘would allow states to consider longer term made that choice, a state is not free to 563 See, e.g., City of Ketchikan, 94 FERC ¶ 61,293, contracts without putting ratepayers at risk’’) (citing toggle a QF’s contractual rate structure at 62,061 (2001) (‘‘[A]voided cost rates need not NOPR, 168 FERC ¶ 61,184 at 5 n.5). back and forth unilaterally from one to include the cost for capacity in the event that the 566 We are not finding that variable avoided cost the other as circumstances change; QFs utility’s demand (or need) for capacity is zero. That energy rates would be appropriate only if they is, when the demand for capacity is zero, the cost cause states to require longer term contracts, and we are entitled to the certainty that once a for capacity may also be zero.’’). are not adopting the suggestion made by certain state has made its choice with respect to 564 NOPR, 168 FERC ¶ 61,184 at P 65. Contrary to commenters that the Commission order states to a particular QF’s contract or LEO, that assertions by some commenters, the Commission’s require longer contract terms. See NIPPC, CREA, QF’s contract or LEO is not subject to conclusion in the NOPR about the possible positive REC, and OSEIA Comments at 47–48; Public change during the term of that contract effects of the variable avoided cost energy rate Interest Organizations Comments at 6–7; sPower proposal was not based on speculation. See Public Comments at 11. or LEO except by mutual consent. Interest Organizations Comments at 36. Rather, the 567 Public Interest Organizations Comments at 45– Commission relied on testimony presented at the 46 (citing S. Rep. No. 95–442, at 9, 22–23, 33 (1977), i. Potential Modifications to NOPR Technical Conference. See Technical Conference as reprinted in 1978 U.S.C.C.A.N. 7903, 7906, Proposal Tr. at 142–43 (Idaho Commission) (‘‘No matter the 7919–21, 7930; Public Interest Organizations, starting point, allowing QFs to fix their avoided cost Comments, Docket No. AD16–16–000, at 5, 19–21 i. Comments rates for long terms results in rates which will (Oct. 17, 2018)). In earlier comments in Docket No. 354. The California Commission, eventually exceed and overestimate avoided cost AD16–16–000, cited by Public Interest rates into the future. The longer the term, the Organizations in response to the NOPR, Public Connecticut Authority, and greater the disparity.... [The Idaho Commission] Interest Organizations asserted that long-term fixed Massachusetts DPU support the variable recently reduced PURPA contract lengths to two QF contracts often act as a hedge that lowers QF energy rate proposal and suggest that, in years in order to correct the disparity. We didn’t financing expenses, which benefits ratepayers, and addition, states be given the discretion reduce contract lengths to kill PURPA. We did it insulates ratepayers from fuel price fluctuations. to allow periodic adjustment of avoided cost Public Interest Organizations, Comments, Docket rates.’’). No. AD16–16–000, at 20–21 (Oct. 17, 2018). 568 Solar Energy Industries Comments at 31–32.
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to require the avoided capacity rate to 358. As a simple illustrative example, (i.e., requests for proposals or RFPs), vary.569 if a utility is able to avoid constructing conducted pursuant to appropriate 355. In contrast, NIPPC, CREA, REC, a new generation facility with a capacity procedures. and OSEIA urge the Commission, if it cost of $10/MW-month as a result of 362. The Commission recognized that allows variable energy rates, to adopt purchasing power from a QF, its one way to enable the industry to move strict parameters for setting capacity avoided capacity cost is the $10/MW- toward more competitive QF pricing is rates in order to provide some month capacity cost that it would have to allow states to establish QF avoided predictability to QFs to allow them to been incurred to construct the new cost rates through a competitive obtain financing. NIPPC, CREA, REC, facility. Once the utility commences its solicitation process. The Commission and OSEIA recommend that the purchases from the QF, it may not need previously has explored this issue. In Commission require forecasted capacity additional capacity, and its avoided 1988, the Commission issued a notice of rates be ‘‘offered in a long-term contract capacity cost for the next QF would proposed rulemaking proposing to of at least 20 years after commencement drop to $0/MW-month. It would not be adopt regulations that would allow of sales under the agreement’’ for ‘‘[a]ll appropriate to then reduce the original bidding procedures to be used in years during the term of the QF’s long- QF’s avoided capacity charge to $0/MW- establishing rates for purchases from term contract after which the utility month, however, because the only QFs.574 That rulemaking proceeding, forecasted to be capacity deficit in its reason that the utility does not need along with several related proceedings, load and resource balance, as forecasted additional capacity is because it already ultimately was withdrawn as overtaken in its resource plan in effect at the time purchased capacity from the original QF by events in the industry.575 of the legally enforceable obligation’’ in order to avoid the $10/MW-month 363. Since then, the Commission held and ‘‘[a]ny time the utility is planning capacity cost. That is, without the in a 2014 order addressing the specific or undertaking actions to acquire a purchase from the original QF, the facts of the particular competitive major generation resource or a major utility would have incurred a capacity solicitation at issue that an electric capital investment at an aging facility at cost of $10/MW-month, and that is the utility’s obligation to purchase power the time of creation of the legally utility’s avoided capacity cost for the from a QF under a LEO could not be enforceable obligation.’’ 570 term of its contract with the original QF. curtailed based on a failure of the QF to It would be inappropriate, in other win an only occasionally-held 356. Commissioner O’Donnell urges 576 the Commission to provide additional words, for avoided cost capacity rates to competitive solicitation. In a separate guidance to states on the minimum change after they are first set at the time proceeding involving a different required contract duration that would a LEO (such as a contract) is established. competitive solicitation, the enable a QF to obtain financing from 359. We also decline to adopt the Commission declined to initiate an investors while providing sufficient suggestion of NIPPC, CREA, REC, and enforcement action where the state 571 OSEIA to adopt additional criteria for competitive solicitation was an ratepayer protections. 577 establishing avoided capacity costs, alternative to a PURPA program. ii. Commission Determination including minimum contract lengths. 364. Given this precedent, the Commission proposed to amend its 357. We decline to adopt the We believe that the existing rate-setting regulations to clarify that a state could California Commission’s, Connecticut provisions adequately set out the establish QF avoided cost rates through Authority’s, and Massachusetts DPU’s criteria that should be considered by a an appropriate competitive solicitation requests to permit a state to require state in determining avoided capacity process. Consistent with its general variable avoided cost capacity rates in costs.572 To the extent that any party approach of giving states flexibility in addition to variable avoided cost energy believes a state has not appropriately the manner in which they determine rates. There is a fundamental difference applied these criteria, that party has
between avoided energy costs and recourse to the enforcement provisions 574 573 Regulations Governing Bidding Programs, avoided capacity costs. Unlike avoided of PURPA sections 210(g) and (h). FERC Stats. & Regs. ¶ 32,455 (1988) (cross- energy costs, which fluctuate with 360. We decline to specify a referenced at 42 FERC ¶ 61,323) (Bidding NOPR); changes in the variable cost of the minimum required contract length given see also Administrative Determination of Full that it is up to states to decide Avoided Costs, Sales of Power to Qualifying purchasing utility’s marginal energy Facilities, and Interconnection Facilities, FERC resource, a purchasing utility’s avoided appropriate contract lengths in a way Stats. & Regs. ¶ 32,457 (1988) (cross-referenced at 42 capacity cost is determined at the time that accurately calculates avoided costs FERC ¶ 61,324) (ADFAC NOPR). the utility incurs the obligation to so as to meet all statutory requirements. 575 See Regulations Governing Bidding Programs, purchase capacity from a QF rather than 64 FERC ¶ 61,364 at 63,491–92 (1993) (terminating 8. Consideration of Competitive Bidding NOPR proceeding); see also Administrative self-build a capacity resource or enter Solicitations To Determine Avoided Determination of Full Avoided Costs, Sales of Power into a power purchase agreement with Costs to Qualifying Facilities, and Interconnection a third party. Although a purchasing Facilities, 84 FERC ¶ 61,265 (1998) (terminating utility’s avoided capacity cost may later a. NOPR Proposal ADFAC NOPR proceeding). 576 See, e.g., Hydrodynamics, Inc., 146 FERC change as additional capacity 361. The Commission in the NOPR ¶ 61,193, at PP 31–35 (2014) (Hydrodynamics). acquisitions are avoided, the cost of the proposed to revise the PURPA Competitive solicitation processes have been capacity avoided by the purchasing Regulations in 18 CFR 292.304 to add used more recently in a number of states, including utility as a consequence of purchasing subsection (b)(8). In combination with Georgia, North Carolina, and Colorado. Georgia’s competitive solicitation process is described at Ga. capacity from a particular QF at a new subsection (e)(1), this subsection Comp. R. & Regs. 515–3–4.04(3) (2018). North particular moment in time does not would permit a state the flexibility to set Carolina’s competitive solicitation process is change. avoided cost energy and/or capacity described at 4 N.C. Admin. Code 11.R8–71 (2018). rates using competitive solicitations Colorado’s competitive solicitation process is described at sPower Development Co., LLC v. 569 California Commission Comments at 27–28; Colorado Pub. Utils. Comm’n, 2018 WL 1014142 (D. Connecticut Authority Comments at 14–15; 572 See 18 CFR 292.304(e). Colo. Feb. 22, 2018). Massachusetts DPU Comments at 8–10. 573 See also Policy Statement Regarding the 577 Winding Creek Solar LLC, 151 FERC ¶ 61,103, 570 NIPPC, CREA, REC, and OSEIA Comments at Commission’s Enforcement Role Under Section 210 reconsideration denied, 153 FERC ¶ 61,027 (2015). 51. of the Public Utility Regulatory Policies Act of 1978, But see Winding Creek Solar LLC v. Peterman, 932 571 Commissioner O’Donnell Comments at 3. 23 FERC ¶ 61,304. F.3d 861 (9th Cir. 2019).
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avoided costs, the Commission did not criteria by the state regulatory authority its output at an avoided cost rate.586 CA propose in the NOPR to prescribe or nonregulated electric utility. The Cogeneration states that reliance on a detailed criteria governing the use of Commission proposed that a state may competitive solicitation also fails to competitive solicitations as tools to use a competitive solicitation to set provide the necessary financial and determine rates to be paid to QFs, as avoided cost energy and capacity rates, operational encouragement for well as to determine other contract provided that such competitive combined heat and power.587 terms. The Commission stated that solicitation process is conducted 371. Covanta asserts that the states arguably may be in the best pursuant to procedures ensuring the Commission’s proposed competitive position to consider their particular solicitation is transparent and non- solicitation process would disadvantage local circumstances, including discriminatory. The Commission technologies like Waste to Energy that questions of need, resulting economic proposed that such a competitive are not growing, or are closing impacts, amounts to be purchased solicitation must be conducted in a facilities.588 through auctions, and related issues. process that includes, but is not limited 372. Southeast Public Interest 365. Nevertheless, in considering to, the factors identified above which Organizations argue that, in the states what constitutes proper design and would be set forth in proposed that currently require some form of administration of a competitive subsection (b)(8). competitive solicitation, many utilities solicitation, the Commission found it 367. In addition, the Commission do not regularly hold competitive was appropriate to establish certain sought comment on whether it should solicitations, do not make competitive minimum criteria governing the process provide further guidance on whether, solicitations open to all QFs, or do not by which competitive solicitations are and under what circumstances, a provide QFs the ability to sell to the to be conducted in order for a competitive solicitation can be used as utility outside of a competitive competitive solicitation to be used to set a utility’s exclusive vehicle for solicitation process.589 Southeast Public QF rates. In that regard, the Commission acquiring QF capacity.581 Interest Organizations maintain that the noted that it has addressed competitive competitive solicitation process can be b. Comments solicitations in prior orders in a number overly burdensome and costly for of contexts that provide potential i. Comments in Opposition smaller facilities. Southeast Public guidance to states and others. For Interest Organizations assert that no example, the Commission’s policy for 368. Several commenters oppose the NOPR proposal to allow states the state requires, and no utility conducts, the establishment of negotiated rates for a competitive solicitation to determine merchant transmission projects,578 the ability to set avoided cost energy and capacity rates through a competitive how best to meet the ongoing energy Bidding NOPR, and the Hydrodynamics 582 needs that it currently meets through case 579 all suggest factors that could be solicitation such as an RFP. 369. Allco states that allowing a state the operation of its existing generation considered in establishing an 590 commission to use a competitive fleet and market purchases. In appropriate competitive solicitation that particular, Southeast Public Interest is conducted in a transparent and non- solicitation price is simply giving another tool to a state commission to Organizations represent that: (1) Florida discriminatory manner. 583 does not require an independent 366. These factors, as proposed in the eliminate QF projects. Allco also contends that this proposal creates an evaluator as part of its competitive NOPR, include, among others: (a) An solicitation process; (2) Colorado and open and transparent process; (b) apples and oranges scenario where a competitive solicitation could be won Oklahoma allow utilities to apply for solicitations should be open to all waivers of the competitive solicitation sources to satisfy the purchasing electric by solar projects of 80 MWs at a low, steeply discounted price that may never requirement; and (3) North Carolina utility’s capacity needs, taking into allows the incumbent utility to account the required operating get built, resulting in a state commission publishing that as an avoided cost for a participate in the competitive bidding characteristics of the needed process and to receive preferential capacity; 580 (c) solicitations conducted 1 MW solar project connected to the 584 treatment in the form of waiving post at regular intervals; (d) oversight by an distribution system. Allco points to California’s Renewable Marketing bid security required for any independent administrator; and (e) independently owned projects.591 certification as fulfilling the above Adjustment Tariff program as an example of a competitive solicitation Southeast Public Interest Organizations 585 conclude that, while a well-designed 578 Allocation of Capacity on New Merchant price failure. Transmission Projects and New Cost-Based, 370. CA Cogeneration states that and well-implemented competitive Participant-Funded Transmission Projects, 142 relying on a competitive solicitation solicitation process could be an FERC ¶ 61,038 (2013). violates PURPA’s mandatory purchase appropriate procurement and rate- 579 See Hydrodynamics, 146 FERC ¶ 61,193 at P obligation, and the regulations must setting tool in some cases, competitive 32 n.70 (citing Bidding NOPR, FERC Stats. & Regs. solicitations should never be the only ¶ 32,455 at 32,030–42). The Commission notes that, always preserve the right of a QF to while QFs not awarded a contract pursuant to an negotiate a contract for the purchase of way to set rates or for QFs to sell their competitive solicitation would retain their existing output, and close consideration should PURPA right to sell energy as available to the 581 The Commission proposed that, even if a be given to determinations of utility electric utility, if the state has concluded that such capacity needs that could be QF capacity puts tendered after an competitive competitive solicitation were used as an exclusive solicitation was held are ‘‘not needed,’’ the capacity vehicle for an electric utility to obtain QF capacity, manipulated to limit renewable energy rate may be zero because an electric utility is not QFs that do not receive an award in the competitive procurements.592 required to pay a capacity rate for such puts if they solicitation would be entitled to sell energy to the electric utility at an as-available avoided cost are not needed. See Hydrodynamics, 146 FERC 586 CA Cogeneration Comments at 10. ¶ 61,193 at P 35 (referencing City of Ketchikan, 94 energy rate. 582 587 Id. at 11. FERC ¶ 61,293 at 62,061 (‘‘[A]voided cost rates need Allco Comments at 12; Blue Earth Comments 588 not include the cost for capacity in the event that at 1–2; Boulder Comments at 6; CA Cogeneration Covanta Comments at 9. the utility’s demand (or need) for capacity is zero. Comments at 10–11; Green Power Comments at 1– 589 Southeast Public Interest Organizations That is, when the demand for capacity is zero, the 3; Industrial Energy Consumers Comments at 13. Comments at 26. cost for capacity may also be zero.’’)). 583 Allco Comments at 12. 590 Id. at 26–27. 580 See 18 CFR 292.304(e); Windham Solar, 157 584 Id. 591 Id. at 27. FERC ¶ 61,134 at PP 5–6. 585 Id. 592 Id. at 25–26.
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373. Mr. Mattson states that precedent in states where competitive solicitations that customer needs and state policy and legislative intent remove are permitted.601 goals are met.609 Xcel explains that in competitive solicitations from being a 377. Growth and Opportunity Center many states, including some in which PPA option.593 Both Mr. Mattson and states that competitive solicitation the Xcel operating companies operate, Two Dot Wind point to the processes, in place of avoided cost resource procurement is accomplished Commission’s ruling in Hydrodynamics calculations, provide better signals to largely through state-administered IRP that ‘‘requiring a QF to win a investors of where their electricity is processes, which are utilized to ensure competitive solicitation as a condition most valuable because competitive a resource mix that meets the overall to obtaining a long-term contract solicitations reflect more informed public interest in affordable and clean imposes an unreasonable obstacle to estimates of the real-time needs of energy. Xcel states that these carefully obtaining a legally enforceable electricity consumers. Growth and calibrated processes can be upset when obligation.’’ 594 Two Dot Wind also Opportunity Center contends that the QFs bring capacity on to a utility’s states that competitive solicitations have proposed rule changes, by giving states system that does not align with the not worked in Montana, and that the more latitude to use competitive state’s vision of its optimal resource mix NOPR’s suggestion that competitive solicitations in complying with PURPA, and when those QFs also attempt to bidding can replace PURPA is not should result in prices for consumers collect above-market payments from supported by the factual record in that more accurately reflect market costs utilities and therefore customers. Xcel Montana.595 for electricity.602 Growth and states that Colorado’s procurement 374. Industrial Energy Consumers Opportunity Center also asserts that in efforts have been so successful that in expresses concern that the parameters states using competitive solicitation 2016 more than 400 bids for 238 distinct for competitive solicitations are not processes, nondiscrimination rules projects were submitted for Public sufficiently developed to ensure a well- should be enforced to ensure that Service Company of Colorado alone, structured, fairly administered, solicitations are competitive and that no and that this process resulted in some transparent, and non-discriminatory providers receive preferential of the lowest prices for renewables seen 603 process for procurement, and therefore treatment. as of that date, with a median wind opposes allowing a competitive 378. The Michigan Commission states price of $19.30/MWh and a median solicitation process to determine that it recently approved using solar price of $30.96/MWh. Xcel argues competitive solicitations to determine avoided costs at this time.596 that unsolicited puts by QFs, in avoided capacity costs for a large contrast, can impede the ability of states ii. Comments in Support 604 electric utility in Michigan. The to meet their resource planning goals 375. Several commenters support the Michigan Commission states that it and can undermine the competitive NOPR proposal to allow states the believes that that recently approved markets that states like Colorado have structure aligns with the Commission’s ability to set energy and capacity rates already created or are striving to proposal in the NOPR.605 through a competitive solicitation such create.610 379. Portland General asserts that, as an RFP.597 381. North Carolina Commission Staff because the output of an competitive states that North Carolina has 376. Multiple commenters, including solicitation represents a resource’s true implemented a competitive solicitation EEI, NRECA, and the Oregon market costs, a competitive solicitation process for solar energy that Commission, support the notion that the is the correct method to determine complements the PURPA reforms states are in the best position to tailor avoided cost.606 Portland General states adopted by the state, with the first the competitive solicitation process to that, given the competitive nature of solicitation concluding in April 2019.611 their needs, and that the Commission competitive solicitations, bidders are North Carolina Commission Staff states should not provide detailed criteria highly motivated, which results in the governing the use of competitive procurement of resources with high that an independent administrator 598 solicitations. EEI states that the fact benefit-to-cost ratios. Portland General estimated the initial nominal savings for that competitive solicitations may be cites as an example its recent the competitive solicitation with a 20- used to set avoided costs is an idea competitive solicitation, which resulted year contract versus traditional avoided nearly as old as PURPA.599 EEI also cost pricing to exceed $370 million for in a $40.70-levelized price and reflects 612 supports the Commission’s proposal for a combination of technologies (wind, the utilities involved. 382. Duke Energy shares its state- a state to allow a competitive solar, and battery), whereas QFs, which solicitation to be used as the exclusive Portland General asserts provide lower specific experience with North vehicle for acquiring QF capacity.600 capacity, are currently offered at a Carolina’s competitive solicitation for NRECA notes that numerous NRECA renewable energy as a positive $45.19 levelized price for solar 613 members have already had success energy.607 example. Duke Energy states that using competitive solicitations to 380. Xcel urges the Commission’s to Duke Energy Carolinas, LLC and Duke establish both energy and capacity rates give the states the option of procuring Energy Progress, LLC recently all needed capacity through competitive completed their Tranche 1 Competitive 593 Mr. Mattson Comments at 23. bidding processes.608 Xcel strongly Procurement of Renewable Energy RFP 594 Id.; Two Dot Wind Comments at 10 (citing believes that states must have the ability and procured approximately 550 MW of Hydrodynamics, 146 FERC ¶ 61,193). to control capacity additions to ensure new solar capacity for 20-year fixed 595 Two Dot Wind Comments at 9–10. price contract terms at a projected 596 Industrial Energy Consumers Comments at 13. 601 NRECA Comments at 11. savings of approximately $261 million 597 Alaska Power Comments at 1; Distributed Sun 602 relative to administratively determined Comments at 2; EEI Comments at 32–33; El Paso Growth and Opportunity Center Comments at Electric Comments at 4; NARUC Comments at 3; 9. NRECA Comments at 11; South Dakota Commission 603 Id. at 10. 609 Id. at 8. Comments at 2–3. 604 Michigan Commission Comments at 4. 610 Id. at 9. 598 EEI Comments at 32–33; NRECA Comments at 605 Id. at 5. 611 North Carolina Commission Staff Comments at 11; Oregon Commission Comments at 3–4. 606 Portland General Comments at 11. 3–4. 599 EEI Comments at 32. 607 Id. 612 Id. at 4. 600 Id. at 33. 608 Xcel Comments at 10. 613 Duke Energy Comments at 10–12.
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forecasts of avoided costs over this same Commission recommends that the 388. Commissioner Slaughter states period.614 Commission provide as much guidance that PURPA sits at the intersection of to states as possible regarding the competition and regulatory policy in an iii. Comments Requesting requirements for transparency and non- area of vital and urgent interest, and that Modifications/Clarifications discrimination.622 the Commission should establish fair, (a) Requests for Clarification and/or 386. The California Commission states non-discriminatory guidelines for Separate Proceedings that the NOPR does not provide states competitive solicitations that would 383. NIPPC, CREA, REC, and OSEIA any more flexibility than they already help states and other stakeholders argue that the NOPR fails to explain (1) have, and the Commission’s final order maximize the benefits of competition whether the Commission is proposing to adopting revised regulations should from low-cost energy sources, merely clarify that a state could use the clearly state this.623 particularly utility-scale renewable 630 lowest offer prices submitted in a 387. Several commenters suggest that energy facilities. Commissioner competitive solicitation to set the the Commission should conduct Slaughter states that such guidelines avoided costs of energy and capacity on focused additional processes on this could form the basis for transitioning a prospective basis for any QF seeking topic.624 Advanced Energy Economy many local markets from a contract until the next competitive suggests that the Commission conduct administratively determined prices to solicitation, or (2) whether the one or more workshops or technical environments of dynamic price Commission is proposing a radical conferences, to explore in detail the discovery in which the rapidly change in its precedent by revising its specific factors that would make a decreasing cost of utility-scale rules to provide that a QF may only sell utility competitive solicitation process a renewable energy can put maximum under a long-term contract if that QF truly competitive process of a pressure on both new and pre-existing wins a competitive solicitation, which fossil fuel-based sources of ‘‘comparative quality’’ to competitive 631 NIPPC, CREA, REC, and OSEIA assert wholesale energy and capacity electricity. would be contrary to the markets.625 Advanced Energy Economy 389. EPSA states that the Commission Hydrodynamics 615 and Winding should ensure that competitive 616 617 contends that such workshops or Creek cases. technical conferences could ultimately solicitations are properly designed to 384. NIPPC, CREA, REC, and OSEIA be the basis for developing proposed ensure that QFs have meaningful request that any requirement to win a regulations better guiding the states and opportunities to compete against competitive solicitation to obtain a long- electric utilities in implementing open resources owned by incumbent utilities term PURPA contract should exempt 632 and competitive solicitation processes on a level playing field. EPSA states small facilities.618 NIPPC, CREA, REC, to obtain relief from the mandatory that the Commission should use this and OSEIA further state that the opportunity to do a full assessment of Commission should: (1) Require that the purchase obligation under PURPA section 210(m)(1)(C).626 Industrial how competitive solicitations are competitive solicitation include no working and could be enhanced, while utility-ownership options; or (2) if Energy Consumers argues that, if the Commission seeks to allow states to rely providing continued protections to utility-owned generation may result, the prevent discrimination against QFs.633 competitive solicitation must be: (i) on competitive solicitation processes, the Commission should undertake a EPSA also emphasizes that, regardless Administered and scored (not just of whatever competitive solicitation overseen) by a qualified independent separate inquiry, with necessary technical conferences, to develop rules the Commission ultimately adopts, party, not the utility; (ii) any utility or the Commission must continue to utility-affiliate ownership bid must be specific parameters to govern such 627 exercise its ‘‘backstop’’ oversight and capped at its bid price and not allowed processes. If the Commission relies directly on competitive solicitation enforcement authority to ensure that traditional cost-plus ratemaking any requirements are implemented in a treatment; and (iii) the product sought, processes in the final rule, Industrial Energy Consumers states that if, after consistent and appropriate manner by minimum bidding criteria, and detailed individual states.634 scoring criteria must be made known to undertaking the competitive all parties at the same time.619 solicitation, the utility rejects all offers (b) Requests Regarding Proposed Additionally, NIPPC, CREA, REC, and and decides to self-build, then the all- Criteria OSEIA contend that an option for long- inclusive price of the self-build option 390. Several commenters requested term contracts should remain available should at least establish the avoided that the Commission clarify the criteria for both small QFs and existing QFs cost rate for QFs seeking to develop in 620 that area.628 EPSA argues that the that solicitations be conducted at outside of a competitive solicitation. 635 385. The Michigan Commission states Commission should require further regular intervals. Several commenters that it would welcome guidance on proceedings, including another request that the Commission reconsider 636 whether, and under what technical conference, to discuss the or remove that criteria. sPower argues circumstances, a competitive protections that would be necessary in that the Commission should require that solicitation can be used as a utility’s order to have a genuinely level playing such competitive solicitations be exclusive vehicle for acquiring QF field for competitive solicitations.629 conducted at a minimum every two 637 capacity.621 Similarly, the Montana years. Colorado Independent Energy 622 Montana Commission Comments at 3. 614 Id. at 12. 623 California Commission Comments at 23. 630 Commissioner Slaughter Comments at 1–2. 615 Hydrodynamics, 146 FERC ¶ 61,193. 624 Advanced Energy Economy Comments at 13; 631 Id. at 3. 616 Winding Creek Solar LLC v. Peterman, 932 EPSA Comments at 15–16; Industrial Energy 632 EPSA Comments at 3. F.3d 861. Consumers Comments at 13–14. 633 Id. at 14. 617 NIPPC, CREA, REC, and OSEIA Comments at 625 Advanced Energy Economy Comments at 13. 634 Id. at 16–17. 62–63. 626 Id. 635 APPA Comments at 17–18; Basin Comments at 618 Id. at 67. 627 Industrial Energy Consumers Comments at 13– 9; Montana Commission Comments at 3; sPower 619 Id. 14. Comments at 9–10. 620 Id. at 67–68. 628 Id. at 14. 636 NorthWestern Comments at 7–8. 621 Michigan Commission Comments at 5. 629 EPSA Comments at 16. 637 sPower Comments at 9–10.
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asserts that competitive solicitations rule remove that language from delivery points and any scoring should be held at regular intervals to condition (ii) in the Commission’s list of deductions for delivery to other points; test the market, and that the conditions that a competitive (2) credit evaluation criteria and Commission should consider the entire solicitation must meet.646 development securing requirements; market, not just projects 80 MW and 394. Colorado Independent Energy and (3) performance requirements.651 states that, in addition to the guidelines under, in evaluating whether there are 397. Public Interest Organizations full and competitive opportunities.638 provided in the NOPR, the Commission should include additional guidelines, argue that the Commission’s proposal 391. Several commenters oppose the does not require that state competitive requirement for an independent including that fairness of an ‘‘all- solicitation procedures meet the administrator.639 APPA argues that the source’’ competitive solicitation must statutory floor established through entire PURPA administrative construct also be determined based on bid PURPA that rates both (1) encourage is designed to entrust to state regulatory evaluation and not just on a competitive small power producers and (2) not authorities the responsibility to carry solicitation. Colorado Independent discriminate relative to the utility’s own out the duties they are assigned under Energy asserts that competitive 640 solicitation submissions can be generation and other non-QF the Commission’s regulations. 652 NRECA believes that states are in the technology-specific, but not the generators. To ensure competitive best position to determine the need for evaluation or the analysis of the need to solicitations actually meet the statutory ‘‘oversight by an independent be met by a competitive solicitation. criteria, the Commission must ensure administrator’’ and recommends this Colorado Independent Energy asserts that competitive solicitations meet four 653 criterion be deleted.641 NRECA requests that a true all-source selection process minimum standards. First, Public that, if the Commission retains the must allow resource planning models to Interest Organizations state that requirement that competitive optimize among all bids received solicitations must account for utility- solicitation processes include some type without bias toward QF-eligible owned and non-QF generation and of oversight, instead of requiring technologies such as renewable cannot be a limited competition 647 oversight by an independent generation or cogeneration. between QFs without the ability to administrator, the Commission should 395. Several commenters stated that displace non-QF generation.654 As an allow states the flexibility to allow competitive solicitations must be example of an incorrectly-conducted, assessed using the criteria set forth in and unlawfully-discriminatory, bidding electric utilities to retain a third-party 648 consultant for this purpose.642 NRECA Allegheny. EPSA further states that, process, Public Interest Organizations contends that many cooperatives have while the Allegheny principles provide cite the Nevada competitive solicitation long-standing relationships with third- a good starting point, additional process that is limited to QFs to meet a party consultants that assist the protections will be required to level the small, segregated portion of the utility’s playing field between independent cooperatives in evaluating power supply energy and unmet capacity generators and utilities.649 R Street options, and requiring those requirements.655 Second, to ensure that asserts that, if an auction can meet the cooperatives to now use some other QFs receive the same price that other Allegheny standard, then generators in entity (i.e., the independent generation receives, Public Interest that state would not be eligible for QF administrator) would be disruptive and Organizations state that all sources of designations. R Street suggests that QFs costly.643 Colorado Independent Energy supply must compete in the competitive should not be able to force their power notes that, while independent solicitation— including the utility’s on utilities if they lose such fairly evaluators are helpful, they are often own generation.656 Third, Public administered auctions.650 employed by utilities and thus Interest Organizations state that the 396. Solar Energy Industries asserts sometimes reluctant to offer third party solicitation process cannot be used in that the Commission should require a criticism of the bid evaluation any way to curtail or delay a utility’s purchasing electric utility to provide the process.644 obligation to purchase from QFs.657 state commission, and make available Fourth, the ‘‘required operating 392. The Montana Commission for public inspection, a post-solicitation characteristics of the needed capacity’’ requests clarification of the term report that: (1) Identifies the winning factor suggested in the NOPR cannot be ‘‘independent administrator’’ and bidders; (2) includes a copy of any ‘‘certified’’ as those terms are used in reports issued by the independent used as a surrogate to define the proposed revisions to evaluator; and (3) demonstrates that the characteristics of only non-QF § 292.304(b).645 generation or to allow a utility to pick solicitation program was implemented 658 393. sPower disagrees that a without undue preference for the among favored generators. competitive solicitation should ‘‘take interests of the purchasing utility or its 398. Biogas states that, if QFs are to into account the required operating affiliates. Solar Energy Industries further enter into competitive solicitations as a characteristics of the needed capacity’’ assert that the solicitation program vehicle for PURPA, then there must be in order to produce accurate avoided should include clear details regarding some correcting for the inequitable tax cost rates and recommends that a final the manner in which the bids will be and regulatory provisions afforded to scored and clearly specify price and incumbent utilities and select renewable 638 Colorado Independent Energy Comments at 9– 12. non-price criteria under which bids are 639 APPA Comments at 18; NRECA Comments at evaluated including: (1) Acceptable 651 Solar Energy Industries Supplemental 11. Comments, Docket No. AD16–16–000, at 21 (filed 640 APPA Comments at 18 (citing 16 U.S.C. 824a– 646 sPower Comments at 8. August 28, 2019). 652 3(f) (expressly calling for state regulatory authorities 647 Colorado Independent Energy at 2. Public Interest Organizations Comments at 69– 70. and nonregulated electric utilities to implement 648 EPSA Comments at 14–15 (citing Allegheny, 653 Commission-issued PURPA regulations)). 108 FERC ¶ 61,082); R Street Comments at 3–4; Id. at 70. 641 NRECA Comments at 11. Solar Energy Industries Supplemental Comments, 654 Id. 642 Id. at 12. Docket No. AD16–16–000, at 32–37 (filed Aug. 28, 655 Id. at 71–72. 643 Id. 2019). 656 Id. at 72. 644 Colorado Independent Energy Comments at 8. 649 EPSA Comments at 15. 657 Id. at 72–73. 645 Montana Commission Comments at 3. 650 R Street Comments at 3–4. 658 Id. at 73.
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technologies, in order to ensure a fair 403. ELCON states that it continues to expression of the Congressional market opportunity.659 see shortcomings in competitive mandate to encourage competition.677 399. American Dams requests that procurement practices across regions.670 407. Harvard Electricity Law states QFs competing against a utility that can A current example ELCON provides is that the NOPR’s proposed 18 CFR rate base the cost of new generation Dominion Energy Virginia’s 2019 RFP 292.304(b)(8)(ii), requiring solicitations should be entitled to similar valuation which, ELCON argues, limited must be open to ‘‘all sources’’—could be provided that QF costs are at or less competition in a manner that all but read as inconsistent with the than those of the utility.660 guarantees that a Dominion self-build Commission’s CPUC orders 678 and the 2019 CARE v. CPUC decision.679 (c) Other Requests option will prevail because it restricts participation to new resources only and Harvard Electricity Law argues that, if 400. In their comments to the NOPR, does not permit an independent third the Commission amends its avoided Solar Energy Industries reference their party to evaluate bids.671 Another cost rules to allow states to set avoided August 28, 2019 comments in Docket example ELCON provides is a recent cost rates based on competitive 661 No. AD16–16–000, in which they Entergy Louisiana solicitation through solicitations, it should clarify that states describe the ‘‘SEIA Counterproposal.’’ which a natural gas generating facility may set tiered rates, as the Commission That document proposes that, where a was approved despite opposition from and the U.S. Court of Appeals for the utility seeks to meet identified capacity Louisiana industrial consumers who Ninth Circuit has allowed in the above needs through an open, fairly designed, argued that the competitive solicitation cases.680 and independently administered was improperly designed to limit 408. The Oregon Commission competitive solicitation: (i) The resource options to new construction recommends that the Commission purchasing electric utility would only comparable to a self-build.672 emphasize the need for states to have have to pay QFs for capacity to the adequate safeguards to protect bidders’ extent that the purchasing electric 404. ELCON asserts that, to be confidential and commercially sensitive utility failed to meet identified need competitive, a competitive solicitation proprietary information when using through the competitive solicitation; must be transparent, face independent competitive solicitations to determine or and (ii) the QF would be paid for its oversight, have safeguards against inform avoided cost rates.681 output (energy and capacity) at the affiliate abuse involving transactions 409. sPower states that the issue of market rate established through the between franchised utilities and their using a competitive solicitation process competitive solicitation process.662 market-based affiliates, and have well- to establish avoided cost rates has 401. Solar Energy Industries request defined technical parameters.673 ELCON sometimes been conflated with using a that the Commission supplement states that experiences with competitive competitive solicitation process to proposed 18 CFR 292.304(b)(5) to solicitations thus far expose the establish a LEO, and sPower encourages require that: (1) Participants are challenges of achieving a workably the Commission to continue to analyze provided with complete and transparent competitive process. ELCON urges the these distinct issues separately.682 information regarding transmission Commission to set a high bar, with 410. Resources for the Future stresses constraints, levels of congestion, and enforcement to verify that a process is that competitive solicitations alone interconnections; and (2) the solicitation sufficiently competitive.674 would minimize QF costs but would not is linked with the purchasing utility’s 405. NorthWestern states that it establish avoided cost rates, which IRP and is conducted for the entirety of supports the Commission’s proposal to depend on much more than the cost of a utility’s anticipated capacity needs.663 use competitive solicitations or RFPs to QF generation.683 However, used in 402. Solar Energy Industries request establish avoided capacity costs, but not concert with forward curves, Resources that the Commission expressly avoided energy costs, because for the Future states that competitive implement safeguards to prevent utility NorthWestern believes that an energy- solicitations could provide an effective self-dealing and affiliate abuse, with only competitive solicitation has no complementary method.684 regard to both price and non-price relation to the market whereas a 664 c. Commission Determination terms. Solar Energy Industries capacity competitive solicitation reference their previous comments in does.675 NorthWestern believes that use 411. In this final rule, we affirm the this proceeding, which they state of a competitive solicitation should be NOPR proposal to revise the PURPA 665 describe practices of PacifiCorp, the preferred vehicle for setting avoided Regulations to explicitly permit a state 666 667 668 NorthWestern, Duke, and Xcel capacity rates for QFs because this will the flexibility to set avoided energy and/ purportedly showing that these utilities ensure that the capacity is acquired at or capacity rates using competitive have attempted to reduce QFs’ ability to the least cost thereby benefiting solicitations (i.e., RFPs), conducted sell while simultaneously seeking to customers.676 build and rate base their own 677 Institute for Energy Research Comments at 1. substantial renewable resources.669 406. Institute for Energy Research 678 Cal. Pub. Utils. Comm’n, 133 FERC ¶ 61,059, states that it would go even further than clarification and reh’g denied, 133 FERC ¶ 61,059 (2010), reh’g denied, 134 FERC ¶ 61,044 (2011) 659 Biogas Comments at 2. the NOPR proposal and require that (CPUC) . 660 American Dams Comments at 3. competitive solicitations be the default 679 Californians for Renewable Energy v. Cal. Pub. 661 Solar Energy Industries Supplemental whenever possible, with states having to Utils. Comm’n, 922 F.3d 929, 937 (9th Cir. 2019) Comments, Docket No. AD16–16–000, at 17–40 justify case-by-case why a non- (CARE v. CPUC) (holding that ‘‘where a state has (filed Aug. 28, 2019). competitive solicitation is needed, [a renewable portfolio standard (RPS)] and the 662 Solar Energy Industries Comments at 38. because solicitation is the best utility is using a QF’s energy to meet the RPS, the 663 Id. at 39. utility cannot calculate avoided costs based on 664 Id. energy sources that would not also meet the RPS[,]’’ 665 Solar Energy Industries Supplemental 670 ELCON Comments at 27. which ‘‘comports with PURPA’s goal to put QFs on Comments, Docket No. AD16–16–000, at 25–28 671 Id. an equal footing with other energy providers’’). (filed August 28, 2019). 672 Id. at 28. 680 Harvard Electricity Law Comments at 31. 666 Id. at 28–29. 673 Id. at 28–29. 681 Oregon Commission Comments at 4. 667 Id. at 29–31. 674 Id. 682 sPower Comments at 3. 668 Id. at 21. 675 NorthWestern Comments at 7. 683 Resources for the Future Comments at 8–9. 669 Solar Energy Industries Comments at 40. 676 Id. 684 Id. at 9.
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pursuant to appropriate procedures in a competitive solicitations in two related procedures to address competitive transparent and non-discriminatory but distinct contexts. The first, to be solicitation issues, such as holding manner. A primary feature of a discussed in this section, relates to the workshops or technical conferences. transparent and non-discriminatory proposal to explicitly permit a state the Should further procedures appear competitive solicitation is that a utility’s flexibility to set avoided cost energy beneficial in light of actual competitive capacity needs are open for bidding to and/or capacity rates using competitive solicitation experience under PURPA all capacity providers, including QF and solicitations (i.e., RFPs), conducted and the regulations adopted today, such non-QF resources, on a level playing pursuant to appropriate procedures. The a proceeding may be appropriate in the field. This level playing field ensures second, to be discussed below, in future. that any QF’s capacity rates that result section IV.G.2 of this final rule, ii. Proposed Criteria from the competitive solicitation are just concerns the NARUC proposal that and reasonable and non-discriminatory urged the Commission to give meaning 420. We continue to find that avoided cost rates. to PURPA section 210m(1)(C) by competitive solicitations as discussed in 412. Consistent with our general establishing a ‘‘yardstick’’ by which a this final rule may accurately reflect a approach of giving states flexibility in vertically integrated utility outside of an purchasing electric utility’s avoided the manner in which they determine RTO or ISO could apply to terminate the costs and ensure that the resulting rates avoided costs, we do not prescribe mandatory purchase obligation if it for winners of such competitive detailed criteria governing the use of conducts sufficiently competitive RFPs solicitations are consistent with PURPA. competitive solicitations as tools to for energy or capacity. A competitive solicitation may more determine rates to be paid to QFs, as 416. More generally, we support the accurately value QF capacity over time well as to determine other contract use of competitive solicitations as a by subjecting it to competition with terms. States arguably are in the best means to foster competition in the other sources. Such competitive position to consider their particular procurement of generation and to solicitations may provide more certainty local circumstances, including encourage the development of QFs in a both to QFs regarding when and how questions of need, resulting economic way that most accurately reflects a often they will be eligible to compete impacts, amounts to be purchased purchasing utility’s avoided costs. We and to purchasing utilities regarding through auctions, and related issues. believe that allowing QFs to compete to how they may expect to fulfill their 413. In considering what constitutes provide capacity and energy needs, capacity needs. proper design and administration of a through a properly administered 421. The Commission clarifies that, if competitive solicitation, however, we competitive solicitation, may help a utility acquires all of its capacity find it appropriate to establish certain ensure an accurate determination of the through properly conducted competitive minimum criteria governing the process purchasing electric utility’s avoided solicitations (using the factors described by which competitive solicitations are cost, and therefore result in prices above), and does not add capacity to be conducted in order for an meeting the PURPA’s statutory through self-building and purchasing competitive solicitation to be used to set requirements. We also believe that it is power from other sources outside of QF rates. These factors, which we reasonable for states to choose to require such solicitations, the competitive proposed in the NOPR and adopt here, QFs to be responsive to price signals as solicitations could be the exclusive include, among others: (a) An open and to where and when capacity is needed. vehicle for the purchasing electric transparent process; (b) solicitations We believe that a properly utility to pay avoided capacity costs should be open to all sources to satisfy administered competitive solicitation from a QF. In this situation, using that purchasing electric utility’s can help provide such price signals. properly conducted competitive capacity needs, taking into account the 417. Furthermore, we believe that solicitations as the exclusive vehicle to required operating characteristics of the competitive solicitations may be an determine the purchasing electric needed capacity; (c) solicitations especially appropriate tool for utility’s avoided cost capacity rates conducted at regular intervals; (d) developing competition in the markets would allow QFs a chance to compete oversight by an independent outside of RTOs and ISOs, where there to provide the utility’s capacity needs administrator; and (e) certification as are no organized competitive markets in on a level playing field with the utility. fulfilling the above criteria by the state place where QFs can make sales. We clarify that it is up to the states to regulatory authority or nonregulated 418. We emphasize, however, that determine whether to require that a electric utility. neither the Commission’s current utility’s total planned self-build and 414. We affirm that such competitive regulations, nor those adopted in this power purchase options must compete solicitations must be conducted in a final rule, require a state or a purchasing in the competitive solicitations, and we process that includes, but is not limited electric utility to use a competitive will not direct such a requirement here. to, the factors identified above that will solicitation to determine avoided cost 422. If a state decides to require utility be set forth in 18 CFR 292.304(b)(8). rates for QFs. Consistent with other self-build and power purchase options This rule does not undo any competitive changes in our regulations discussed to participate in competitive solicitations conducted prior to the above, we give states the flexibility to solicitations, then a QF that does not effective date of this final rule that may use a properly structured competitive obtain an award in a competitive not have met these criteria. This rule solicitation for this purpose, but we do solicitation would have no right to an applies only to competitive solicitations not mandate that they do so. avoided cost capacity rate more than conducted after the effective date of the 419. Furthermore, in light of the zero because the utility’s full capacity final rule. We also provide substantial experience the industry has needs would have been met by the modifications and clarifications to the with competitive solicitations within competitive solicitation.685 However, NOPR proposal, as described below. and outside of the PURPA context, and the voluminous comments the 685 This would be consistent with City of i. Requests for Clarification and/or Commission has received regarding Ketchikan, 94 FERC at 62,061 (‘‘[A]voided cost rates Separate Proceedings need not include the cost for capacity in the event competitive solicitations, we find that that the utility’s demand (or need) for capacity is 415. As an initial matter, in the there is not currently a need for a zero. That is, when the demand for capacity is zero, NOPR, the Commission addressed separate proceeding or additional the cost for capacity may also be zero.’’).
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QFs would continue to have the right to instead have been unfair. As described utility’s capacity needs, taking into put energy to the utility at the as- above, assertions about specific states’ account the required operating available avoided cost energy rate competitive solicitation processes characteristics of the needed capacity; because the purchasing utility will still include that: (iii) solicitations are conducted at be able to avoid incurring the cost of —The competitive solicitations regular intervals; (iv) solicitations are generating energy even when it does not conducted in Florida are unfair subject to oversight by an independent need new capacity. because they do not require an administrator; and (v) solicitations are 423. If the state does not require Independent Evaluator as part of the certified as fulfilling the above criteria utility self-build and purchase options competitive solicitation process; 688 by the relevant state regulatory authority to participate in competitive —the competitive solicitations or nonregulated electric utility through solicitations, then QFs that lose in a conducted in Colorado and Oklahoma a post-solicitation report. competitive solicitation still may have are unfair because purchasing electric 428. Without judging the competitive the right to avoided cost capacity rates utilities are allowed to apply for solicitations conducted to date, we find more than zero if the state determines waivers of the competitive solicitation that henceforth any competitive that the utility still has capacity needs requirement; 689 solicitation that does not comply with after the competitive solicitation that —The competitive solicitations these factors will be viewed as not otherwise could be met through the conducted in North Carolina are transparent and discriminatory, and not utility’s self-build or purchase options. unfair because the incumbent a basis for either setting the avoided cost 424. The Commission has held and purchasing electric utility can receive capacity rate that a QF may charge the we reaffirm here that, when capacity is preferential treatment in the form of purchasing electric utility or limiting not needed, the avoided capacity cost which generators can receive a capacity 686 waivers of the post bid security rate can be zero. Competitive otherwise required for any rate. Phrased differently, we will solicitations conducted pursuant to the independently owned projects; 690 presume that any future competitive rules adopted in this final rule that are and solicitation that does not comply with held whenever capacity is needed —The competitive solicitations the factors adopted in this final rule provide QFs a level playing field on conducted in Nevada are unfair does not comply with the Commission’s which to compete to sell capacity. This because the process is limited to QFs regulations implementing PURPA. approach further shields purchasing to meet a small, segregated portion of 429. In addition, to further promote fairness, the Commission makes several electric utilities from situations like the utility’s energy and unmet those explained by Xcel, where QFs clarifications, as described below. capacity requirements.691 430. We clarify that competitive could simply sit out the competitive 426. Commenters also make assertions solicitations must also be conducted in solicitation process (or participate but about unfair practices of purchasing not have their bids accepted), but then accordance with the Allegheny electric utilities, including that the seek to sell capacity to the purchasing principles under which the Commission purchasing electric utilities have electric utility and to receive a separate evaluates a competitive solicitation: (1) attempted to reduce QFs’ ability to sell higher administratively-determined Transparency, a requirement that the while the purchasing electric utilities avoided cost rate including an avoided solicitation process be open and fair; (2) are simultaneously seeking to build and cost capacity rate, and even potentially definition, a requirement that the rate base their own substantial displace non-QF competitive product, or products, sought through the renewable resources. solicitation winners.687 This approach competitive solicitation be precisely 427. The criteria proposed in the benefits ratepayers because allowing defined; (3) evaluation, a requirement NOPR were aimed at ensuring that QFs to compete in properly conducted, that the evaluation criteria be competitive solicitations are conducted competitive solicitations that are held standardized and applied equally to all fairly. In this final rule, the Commission whenever capacity is needed allows the bids and bidders; and (4) oversight, a finds that, in order to use the results of purchasing utility to obtain needed requirement that an independent third a competitive solicitation to set avoided capacity efficiently. To be clear, the party design the solicitation, administer cost rates, the competitive solicitation competitive solicitation is not to be a bidding, and evaluate bids prior to means to determine a QF’s right to put must be conducted in a transparent and selection.692 While the NOPR’s as-available energy to the utility. But the non-discriminatory manner. Such a proposed guidelines for competitive competitive solicitation can be the competitive solicitation must be solicitations were generally inclusive of means to determine what, if any, rate conducted in a process that includes, the Allegheny principles, in order to the QF will be paid for capacity. but is not limited to, the following more precisely define what is and what 425. Multiple commenters point out factors: (i) The solicitation process is an is not a properly conducted competitive that using competitive solicitations open and transparent process that solicitation that can be used to could be a beneficial way to carry out includes, but is not limited to, providing determine what generators will be the Congressional intent behind PURPA. equally to all potential bidders entitled to an avoided cost capacity rate, However, many of these same substantial and meaningful information and what that rate will be, we commenters claim that the competitive regarding transmission constraints, specifically clarify here that the solicitations carried out to date do not levels of congestion, and Allegheny principles apply as well. live up to this standard. In other words, interconnections, subject to appropriate 431. We also revise the proposed commenters assert that the competitive confidentiality safeguards; (ii) language in 18 CFR 292.304(d)(8)(i) to solicitations conducted to date have solicitations must be open to all sources, clarify that participants must be often not been properly conducted and to satisfy that purchasing electric provided with substantial and meaningful information regarding 686 Id. at 62,061 (‘‘[A]voided cost rates need not 688 Southeast Public Interest Organizations transmission constraints, levels of Comments at 27. include the cost for capacity in the event that the congestion, and interconnections, utility’s demand (or need) for capacity is zero. That 689 Id. is, when the demand for capacity is zero, the cost 690 Id. subject to appropriate confidentiality for capacity may also be zero.’’). 691 Public Interest Organizations Comments at 71– 687 See Xcel Comments at 2–3, 9–10. 72. 692 Allegheny, 108 FERC ¶ 61,082 at P 18.
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safeguards. We believe that it is needs frequently, and the state or criteria, we clarify that, after a thorough important that all participants in the nonregulated electric utility is in the review of the competitive solicitation competitive solicitation have access to best position to determine the frequency procedures used and the competitive these data as a necessary predicate for of that review. However, there may be solicitation results, certification of the a nondiscriminatory competitive times when a utility’s review of capacity competitive solicitation requires a solicitation process, and we find that needs reveals that no capacity is written, formally-issued finding by the requiring that this information be needed, and it would not make sense for state that the competitive solicitation provided will help ensure that a a competitive solicitation to be and its results comply with PURPA and competitive solicitation is open and mandated at such a time. this Commission’s PURPA regulations— transparent. We acknowledge the risk 435. We similarly decline to be overly and must include the independent that competitive solicitation prescriptive as to what constitutes an administrator’s report to the same effect. participants could use this information ‘‘independent administrator.’’ 437. We decline at this time to add to gain a competitive advantage that Commenters argue on both sides any additional requirements for could be used outside of the competitive whether the NOPR proposal goes too far competitive solicitations. We continue solicitation, but find that this risk can be or not far enough. On the one hand, to believe that states may be in the best minimized through the use of non- NRECA argues that states are in the best position to consider their particular disclosure agreements and placing position to determine the need for local circumstances. We think that the reasonable limits on those persons oversight by an independent guidelines adopted here, in conjunction permitted to review the information, administrator and recommends this with the Allegheny principles and other just as is done in other Commission criterion be deleted.694 On the other clarifications made here, provide an proceedings where this issue arises. hand, Colorado Independent Energy adequate framework for competitive 432. We also clarify that the notes that independent administrators solicitations to be conducted efficiently, requirement that the competitive are often employed by utilities and thus transparently and in a solicitation process be open and sometimes reluctant to offer third party nondiscriminatory manner. transparent includes that the electric criticism of the bid evaluation 438. We also clarify that, if a utility provide the state commission, process.695 We clarify that the competitive solicitation is not and make available for public independent administrator, who is conducted fairly and in accordance with inspection, a post-solicitation report responsible for administering the the guidelines here, then an aggrieved that: (1) Identifies the winning bidders; competitive solicitation, must be an entity may challenge the state’s (2) includes a copy of any reports issued entity independent from the purchasing competitive solicitation in the by the independent evaluator; and (3) electric utility in order to help ensure appropriate forum, which could include demonstrates that the solicitation fairness. Whether the entity is called an any one or more of the following: (1) program was implemented without independent administrator or a third- Initiating or participating in proceedings undue preference for the interests of the party consultant, the substantive before the relevant state commission or purchasing utility or its affiliates. We requirement of this factor is that the governing body; (2) filing for judicial find this consistent with the competitive solicitation not be review of any state regulatory requirement that competitive administered by the purchasing electric proceeding in state court (under PURPA solicitations be open and transparent, to utility itself or its affiliates, but rather by section 210(g)); or, alternatively (3) not only ensure that utilities are not a separate, unbiased, and unaffiliated filing a petition for enforcement against discriminating against QFs, but also to entity not subject to being influenced by the state at the Commission and, if the help all stakeholders and the public at the purchasing utility. We recognize, Commission declines to act, later filing large better understand the utility’s however, that such an independent a petition against the state in U.S. competitive solicitation processes and administrator will need to be selected district court (under PURPA section thus to be confident in the fairness of and paid. Though we are not directing 210(h)(2)(B)). the process and of the results. a process, we note that the selection and 433. Regarding the requirement that payment could be done under the iii. Other Requests solicitations must be open to all sources auspices of a state regulatory authority 439. We decline to grant Solar Energy to satisfy the purchasing electric or by mutual agreement between the Industries request to require that utility’s capacity needs, taking into utility and the competitive solicitation solicitations be linked with the account the required operating participants. purchasing electric utility’s IRP. Where characteristics of the needed capacity, 436. In response to the Montana a state has an IRP,696 it may make sense we decline to remove the phrase ‘‘taking Commission’s request for clarification as to link the competitive solicitation into account the operating to what ‘‘certified’’ means within the processes with the IRP so that the characteristics of the needed capacity.’’ guideline that requires certification of competitive solicitation is conducted for There may be times when a utility needs the competitive solicitation by the state the entirety of a utility’s anticipated capacity with specific attributes, such as regulatory authority or nonregulated capacity needs. On the other hand, IRPs specific ramping capability, that cannot electric utility as fulfilling the above may come in a variety of forms. For be filled by certain types of generators. example, an IRP may merely be a However, we agree with Public Interest 694 NRECA Comments at 11. In this final rule, we general projection of short- and long- Organizations that this phrase may not note, for ease of readability we have used the word term load growth and potential be used to define characteristics of only ‘‘state’’ to refer to both state regulatory authorities and to nonregulated electric utilities. Thus, in the resources to meet such growth, and each non-QF generation or to allow a utility context of nonregulated electric utilities in generation project may be subject to 693 to select favored generators. particular, to say that the ‘‘state’’ can fairly specific approval based on actual 434. We decline to be overly administer the competitive solicitation is to say that specific need. In order to provide states the nonregulated electric utility can, essentially, be prescriptive as to what constitutes flexibility in conducting these ‘‘regular intervals.’’ In general, utilities both the purchasing electric utility and potentially the independent administrator of its own should be reviewing their capacity competitive solicitation. That is a result we cannot 696 16 U.S.C. 2621(a), (d)(7) (requiring states to countenance. consider whether to employ integrated resource 693 Public Interest Organizations Comments at 73. 695 Colorado Independent Energy Comments at 8. planning).
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processes, we will not require such proposed that the length of the utility’s Commission proposes to remove state links between competitive solicitations PURPA purchase contract should match authority by requiring QF contracts with and IRPs, although such links certainly the term of the POLR supply solicitation a POLR to match the term of the POLR’s are permitted if a state deems it to be contracts in order to more accurately other supply contracts.702 Public appropriate. reflect the utility’s avoided costs. Interest Organizations also state that 440. Regarding facilities not designed 443. The Commission proposed, even if the Commission had such primarily to sell electricity to the through this change, to provide that authority, there is no evidence in the purchasing electric utility, such as state regulatory authorities and record to support matching QF contract waste to power small power production nonregulated electric utilities have lengths with a POLR’s other supply facilities and cogeneration facilities, we flexibility to respond to the possibility contracts. Public Interest Organizations find that an exemption from competitive that, over time, a utility’s POLR supply also assert that the Commission’s solicitation processes is unnecessary. obligation may decrease (or increase). proposal unlawfully discriminates We do not exempt small power The Commission intended that this against QFs to the extent that it fails to production facilities from the proposal would apply prospectively treat QF contracts in parity with any of competitive solicitation process; we are from the effective date of a final rule a POLR’s other supply contracts.703 not persuaded that such an exemption and would not disturb contracts in 446. Biogas and Covanta argue that is appropriate given that exempting effect at the time the utility’s supply the rationale for this proposal is unclear large classes of small power producers obligation is reduced. and that the NOPR fails to justify the could frustrate the price discovery 2. Comments reduction of a utility’s obligation to function of the competitive solicitation. 444. APPA, DTE Electric, EEI, purchase QF power based on the A large number of exempted small amount of any non-utility generator’s facilities could disrupt the competitive Institute for Energy Research, NorthWestern, NRECA, Pennsylvania supply into the utility’s service solicitation process. We clarify, territory.704 Covanta states that the however, that QFs whose capacity is Commission, Portland General, and We Stand for Energy filed comments in NOPR incorrectly concludes that all 100 kW or less already are entitled to public power is renewable power.705 standard rates regardless of whether support of the Commission’s proposal to provide that the purchase obligation Biogas and Covanta assert that the they compete in a competitive may be reduced to the extent the existence of a competitive retail market solicitation and we do not change that purchasing electric utility’s supply does not mean there is a competitive regulation in this final rule.697 Given obligation has been reduced by a state retail market for biogas or waste-to- that we view competitive solicitations 706 retail choice program.698 energy QFs. Biogas and Covanta also as an important price discovery tool and 445. New England Small Hydro, argue that the NOPR would reduce that that states already are required to NIPPC, CREA, REC, and OSEIA, and already limited market by providing establish standard rates for such Public Interest Organizations filed greater leverage to the purchasing entities, there is no need to determine opposing comments arguing that the electric utility, and urge the prices for QFs at 100 kW or less through Commission lacks the statutory Commission to remove barriers to local a competitive solicitation. authority to implement this proposal government options for energy purchase 441. The Commission clarifies that because the Commission lacks rates. any competitive solicitation conducted discretion to reduce an electric utility’s 447. Ohio Commission Energy may not force alteration of existing QF mandatory purchase obligation except Advocate states that under Ohio law, an contracts. A QF receiving a capacity through PURPA section 210(m).699 New electric distribution utility is required to payment is entitled to that payment for England Small Hydro claims that provide consumers within its certified the duration of the term of its contract, PURPA section 210(a) clearly states that territory a standard service offer of all and a competitive solicitation is electric utilities must purchase the competitive retail electric services necessarily forward looking based on electric energy from QFs, and that the necessary to maintain essential electric the results of that auction. Commission does not have the authority services to customers, including a firm C. Relief From Purchase Obligation in to deviate from the statute.700 NIPPC, supply of electric generation services.707 Competitive Retail Markets CREA, REC, and OSEIA argues that the Ohio Commission Energy Advocate Commission’s existing regulations claims that all PUCO-regulated electric 1. NOPR Proposal adequately address the concern at issue distribution utilities satisfy this 442. The Commission in the NOPR because any reduction in the long-term obligation through competitive proposed to add regulatory text at the capacity needs of the utility due to retail solicitation for default service within end of § 292.303(a) of the PURPA access should be reflected in avoided the context of an electric security Regulations to provide that a utility’s capacity rates offered to QFs.701 Public plan.708 Ohio Commission Energy purchase obligation may be reduced to Interest Organizations claim that the Advocate believes that the electric the extent the purchasing electric distribution utility should retain the full utility’s supply obligation has been 698 APPA Comments at 20; DTE Electric purchase obligation because the reduced by a state retail choice program. Comments at 4–5; EEI Comments at 41–42; Institute for Energy Research Comments at 1–2; regulated utility maintains the The Commission stated that it was NorthWestern Comments at 8; NRECA Comments at obligation to serve as the POLR for all reasonable for electric utilities’ PURPA 13–14; Pennsylvania Commission Comments at 6– 7; Portland General Comments at 12–13; and We capacity purchase obligations to be 702 Public Interest Organizations Comments at 74. Stand Comments at 1. reduced to the extent retail choice 703 Id. at 75. 699 New England Small Hydro Comments at 15– 704 reduces their supply obligations. To the 16; NIPPC, CREA, REC, and OSEIA Comments at Biogas Comments at 2; Covanta Comments at extent Provider of Last Resort (POLR) 68–69; and Public Interest Organizations Comments 9. supplies are obtained through at 74–75. 705 Covanta Comments at 9. 706 solicitations having a particular contract 700 New England Small Hydro at 16 (citing Biogas Comments at 2; Covanta Comments at Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 9–10. term such as one year, the Commission U.S. 837 (1984)). 707 Ohio Commission Energy Advocate Comments 701 NIPPC, CREA, REC, and OSEIA Comments at at 5. 697 See 18 CFR 292.304(c). 69. 708 Id. at 6.
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‘‘wires-connected’’ customers.709 Ohio percentage of its customer demand utilities, and argues that such entities Commission Energy Advocate also participating in the state’s retail choice meet the definition of electric utility states that it is concerned by the lack of program, or some other metric; and (2) used in PURPA.721 alternatives to the mandatory purchase how fluctuations in the state’s retail 453. California Utilities state that the obligation and would question any choice program and resulting purchase Commission should clarify that a state interpretation of PURPA that obligation should be addressed.715 has no authority to exempt any contemplates a scenario where no entity 449. Connecticut Authority supports traditional or alternative retail supplier has a purchase obligation for a QF.710 the proposal to modify distribution from the PURPA mandatory purchase 448. ELCON, California Utilities, utilities’ must-purchase obligations.716 obligation in order to ensure QFs that Chamber of Commerce, Connecticut Connecticut Authority states that since there is a robust market to sell their Authority, and Michigan Commission Connecticut’s electric industry energy and capacity to entities that request further clarification on how the restructuring, distribution utilities’ actually serve load in the event a legacy Commission’s proposal will be purchases of QF output have not been utility is relieved of all or part of its implemented. ELCON states that used to serve retail customers, rather the PURPA obligations.722 California industrial customers conditionally distribution utility acts as an Utilities also state that the Commission support the reduction in obligation to intermediary selling output into the should clarify that alternative retail purchase based on a state retail choice New England markets. Connecticut suppliers must make avoided cost program, subject to the development of Authority asserts that the Commission information publicly available to allow clear and enforceable criteria that should clarify that the state regulatory QFs to locate and identify potential exclude mandatory purchase obligation authority is responsible for determining buyers that may have higher avoided relief for default supply obligations that the appropriate adjustment to the costs than legacy utilities that have lost utilities meet with their own distribution utility’s must-purchase load and may no longer have capacity generation.711 obligation and providing notice of such needs. Similarly, California Utilities state determination to the Commission.717 454. California Utilities argue that for that because of the various ways states 450. Connecticut Authority claims states such as California that allow have developed restructured retail that QF output is different from, and alternative retail suppliers to opt out of markets, the Commission should cannot be substituted in for, distribution procuring capacity and require legacy provide additional guidance as to the utility-provided default standard or last utilities to provide capacity on their various ways that state commissions can resort services. Connecticut Authority behalf, it would be unfair for legacy address load reductions due to retail explains that standard service is utilities to pay a QF any amount for choice while protecting legacy procured in six-month tranches, last energy greater than the LMP unless the utilities.712 California Utilities explain resort service is procured in three- price differential for which the legacy that they need Commission guidance to month tranches, and that distribution utility can sell the energy in the market ensure that cost recovery for past and utilities do not self-manage their default is paid for by the alternative retail future mandated QF purchases is service supply portfolios.718 supplier that was short on capacity.723 equitable to the remaining retail 451. Connecticut Authority states that California Utilities explain that this customers in the legacy utilities’ while it agrees that matching the would prevent cost shifts to customers distribution service areas and that future contract terms for default service supply who remain with the legacy utility such PURPA mandates or costs are fairly and QF supply could potentially reduce that all costs associated with the allocated consistent with cost-causation the burden of over-estimated avoided mandatory PURPA purchases made by principles.713 Chamber of Commerce costs and give states flexibility to the legacy utility on behalf of the states that the Commission should respond quickly to changes to a alternative retail supplier would be clarify that the reduction in a utility’s distribution utility’s default supply borne by customers of the alternative QF purchase obligation is measured obligation, the Commission should not retail supplier.724 California Utilities against the amount of a utility’s load mandate any term length for the also argue that the Commission should that has elected an alternative supplier, mandatory purchase obligation.719 clarify that if legacy utilities are as opposed to eligible load.714 Chamber Instead, Connecticut Authority asserts required to procure capacity from QFs of Commerce claims that in certain that the Commission should allow the on behalf of alternative retail suppliers, states, only a portion of an electric state to establish the term based on states must require alternative retail utility’s load is eligible to select an state-specific circumstances. suppliers to pay for such QF purchases alternative electricity supplier and that 452. California Utilities request that at the avoided cost rate set by the state such percentage would serve as the the Commission reaffirm that all for the legacy utility for capacity. limit for any corresponding reduction in alternative retail suppliers, including 455. California Utilities urge the a utility’s QF purchase obligation. Electric Service Providers (ESP) and Commission to adopt a stranded cost Michigan Commission states that its Community Choice Aggregators (CCA), regulation addressing PURPA retail choice program caps retail choice are electric utilities subject to the obligations incurred by legacy utilities at 10 percent of an electric utility’s retail PURPA purchase obligation.720 that lose load to retail competition customer demand, and seeks California Utilities explain that ESPs consistent with the cost recovery clarification on (1) whether the and CCAs are the two types of entities guarantee in PURPA section reduction in a utility’s purchase that California allows to sell power to 210(m)(7)(A).725 California Utilities obligation would equal the reduction in retail customers in the distribution argue that such regulation should be its supply obligation, be based on the service territories of CPUC-regulated clear that prudently incurred costs include any costs associated with a 709 Id. at 6–7. 715 Michigan Commission Comments at 5–6. 710 Id. 716 Connecticut Authority Comments at 16. 721 Id. at 9–10. 711 ELCON Comments at 19. 717 Id. at 17. 722 Id. at 11. 712 California Utilities Comments at 5. 718 Id. 723 Id. at 12. 713 Id. at 7. 719 Id. at 18. 724 Id. at 13. 714 Chamber of Commerce Comments at 5. 720 California Utilities at 9. 725 Id. at 14.
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purchase under a state-mandated apart and less than 10 miles apart. The demonstration that the facility described contract. California Utilities propose Commission believed that, just as there in the self-certification, self- new language to § 292.304(g) regarding are some facilities that may be so close recertification, or Commission implementation of the cost recovery that it is reasonable to irrebuttably treat certification does not satisfy the mandate in section 210(m)(7)(A) of them as a single facility (those a mile or requirements for QF status. General PURPA stating, in part, that ‘‘[a] state less apart), so there are some facilities allegations or unsupported assertions commission may not find any costs that are sufficiently far apart that it is would not be a basis for denial of associated with any legally enforceable reasonable to treat them as irrebuttably certification. The Commission further obligation that it has imposed on an separate facilities.728 That latter proposed limiting protests to QF status electric utility imprudent.’’ 726 distance, the Commission believed, is by requiring that once the Commission 10 miles or more apart. Thus, if two has affirmatively certified an applicant’s 3. Commission Determination affiliated facilities are one mile or less QF status through either a Commission 456. In this final rule, we decline to apart, they would continue to be certification proceeding or in response adopt the proposed regulation irrebuttably presumed to be a single to protests challenging QF status, any permitting states with retail competition facility at a single site. If affiliated later protest to a QF’s existing to allow relief from the purchase facilities are 10 miles or more apart, certification asserting that facilities obligation. We instead clarify that the they would be irrebuttably presumed to further than one mile apart are part of Commission’s existing PURPA be separate facilities at separate sites. a single QF must demonstrate changed Regulations already require that states, 460. The Commission proposed that if circumstances that call into question the to the extent practicable, must account affiliated facilities are more than one continued validity of the earlier for reduced loads in setting QF rates. mile apart and less than 10 miles apart, certification. 457. Specifically, 18 CFR there would still be a presumption, but 463. The Commission proposed that 292.304(e)(3) already does and will it would be a rebuttable presumption, physical and ownership factors may be continue to allow states, when setting that they are separate facilities at asserted to rebut or defend against avoided cost rates, to take into account separate sites. Purchasing electric rebuttal. Noting that no single factor ‘‘the ability of the electric utility to utilities and others thus would be able would be dispositive, the Commission avoid costs, including the deferral of to file a protest attempting to rebut the proposed the following factors: (1) capacity additions.’’ We regard this presumption for facilities more than one Physical characteristics including such existing regulation as allowing a state to mile apart and less than 10 miles apart common characteristics as: consider reductions in a purchasing and argue that they should be treated as infrastructure, property ownership, electric utility’s supply obligations a single facility. The Commission could interconnection agreements, control given retail competition and the also act sua sponte. The Commission facilities, access and easements, purchasing electric utility’s POLR proposed that self-certifications will interconnection facilities up to the point obligations under state law. We further remain effective after a protest has been of interconnection to the distribution or clarify that this clarification is not filed, until such time as the Commission transmission system, collector systems intended to be reflected as a MW-for- issues an order revoking the or facilities, points of interconnection, MW reduction (or increase) based on certification. motive force or fuel source, off-take yearly changes in load and therefore 461. The Commission proposed arrangements, property leases, and does not and may not serve to terminate allowing an entity seeking QF status to connections to the electrical grid; and a purchasing utility’s mandatory provide further information in its (2) ownership/other characteristics, purchase obligation under PURPA certification (both self-certification and including such characteristics as section 210(a).727 application for Commission whether the facilities in question are: certification), to preemptively defend Owned or controlled by the same D. Evaluation of Whether QFs Are at against rebuttal by asserting factors that person(s) or affiliated persons(s), Separate Sites affirmatively show that the affiliated operated and maintained by the same or 1. Rebuttable Presumption of Separate facilities are indeed separate facilities at affiliated entity(ies), selling to the same 729 Sites separate sites. Anyone challenging electric utility, using common debt or the QF certification would be allowed to equity financing, constructed by the a. NOPR Proposal assert factors to show that the facilities same entity within 12 months, 458. The Commission proposed to are actually part of the same, single managing a power sales agreement allow entities challenging a QF facility. executed within 12 months of a similar certification to rebut the presumption 462. The Commission proposed and affiliated facility in the same that affiliated facilities located more limiting protests challenging QF status location, placed into service within 12 than one mile apart are considered to be by requiring any entity filing a protest months of an affiliated project’s separate QFs. The Commission to specify facts that make a prima facie commercial operation date as specified proposed that this change would be in the power sales agreement, or sharing effective as of the date of the final rule, 728 NOPR, 168 FERC ¶ 61,184 at P 101. As engineering or procurement contracts. discussed in detail in section IV.D.1.d below, this The Commission solicited comments on which means that such challenges could final rule will change the references to ‘‘separate only be made to QF certifications and facilities’’ or ‘‘the same facility’’ to ‘‘at separate whether the Commission should rely on recertifications that are submitted after sites’’ or ‘‘at the same site.’’ some or any of these factors, or other the effective date of the final rule in this 729 While a QF with a net power production factors, or whether the various factors capacity of 1 MW or less is not required to formally should be considered together and proceeding. certify its QF status (either through a self- 459. The Commission proposed that certification or application for Commission weighed. an entity can seek to rebut the certification), if the QF’s status is later challenged 464. The Commission stated that it presumption only for those facilities (i.e., by a petition for declaratory order), the QF will continue to rely on its definition of that are located more than one mile would be able to respond by affirmatively ‘‘affiliate’’ provided in 18 CFR demonstrating that its facilities are not located at the same site as other affiliated facilities and thus 35.36(a)(9), and noted that subsection 726 Id. at 15. that the QF does not exceed the 80 MW size (iii) provides that the Commission may 727 18 CFR 292.304(e)(3). limitation. determine, after appropriate notice and
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opportunity for hearing, that a person 467. We adopt the proposal to allow status in response to a protest opposing stands in such relation to a specified a small power production facility a self-certification or self-recertification, company that there is likely to be an seeking QF status to provide further or in response to an application for absence of arm’s-length bargaining in information in its certification (both Commission certification or transactions between them as to make it self-certification and application for recertification, any later protest to a necessary or appropriate in the public Commission certification) or recertification (self-recertification or interest or for the protection of investors recertification (both self-certification application for Commission or consumers that the person be treated and application for Commission recertification) making substantive as an affiliate.730 The Commission recertification), to preemptively defend changes to a QF’s existing certification intended, when applying its rules on against anticipated challenges by must demonstrate changed separate facilities, to consider this identifying factors that affirmatively circumstances from the facts on which provision of its regulations, when show that its facility is indeed at a the Commission acted on the entities otherwise would not be deemed separate site from affiliated small power certification filing that call into question affiliates under the other provisions of production QFs that use the same the continued validity of the earlier the definition, to determine whether a energy resource and that are more than certification.733 Finally, the Commission person nevertheless should be treated as one but less than 10 miles from its retains the discretion to summarily an affiliate. In doing so, the Commission facility. We will correspondingly allow reject protests where a protest reiterates stated that it could take into any interested person or entity to arguments already made against the consideration many of the same factors challenge a QF certification (both self- same QF that the Commission that would reasonably be considered in certification and application for previously denied or otherwise rejected. Commission certification) or evaluating whether facilities located c. Need for Reform over one and less than 10 miles apart recertification (both self-recertification are a single facility or separate facilities. or application for Commission i. Comments 465. The Commission believed that recertification) that makes substantive 470. Multiple parties have expressed this change, together with the proposed changes to the existing certification as concern that some QF developers of 732 definition of ‘‘electrical generating further described below). small power production facilities are 468. As explained in section IV.D.1.f equipment’’ and revision to the FERC circumventing the one-mile rule, and below, we adopt the NOPR’s proposed Form No. 556, would more closely align thereby circumventing PURPA, by factors, with certain additions. with Congress’s requirement that QFs strategically siting small power seeking to certify as small power 469. We adopt the proposal to clarify that challenges to QF status require that production facilities that use the same production facilities are in fact below energy resource slightly more than one the 80 MW statutory limit for such the interested person or entity filing a protest must specify facts that make a mile apart in order to qualify as separate facilities.731 734 prima facie demonstration that the small power production facilities. b. Commission Determination facility described in the certification Several commenters state that the (both self-certification and application NOPR-proposed changes will reduce the 466. As further discussed and revised opportunity for gaming.735 in the following sections, we adopt the for Commission certification) or recertification (both self-recertification 471. Several commenters argue, to the NOPR proposal. Henceforth, if a small contrary, that there is no evidence of power production facility seeking QF and application for Commission recertification) does not satisfy the status is located one mile or less from 733 An interested person or entity can choose to any affiliated small power production requirements for QF status. file a petition for declaratory order, with fee, at any QFs that use the same energy resource, Additionally, any protest must be time (that is, not only within 30 days from the date it will be irrebuttably presumed to be at adequately supported, with supporting of the filing of the Form No. 556). However, if the documents, contracts, or affidavits, as Commission has affirmatively certified an the same site as those affiliated small applicant’s QF status in response to a protest power production QFs. If a small power appropriate. General allegations or opposing a self-certification or self-recertification, production facility seeking QF status is unsupported assertions will not provide or in response to an application for Commission located ten miles or more from any a basis for denial of certification or certification or recertification, any later petition for declaratory order protesting the QFs existing affiliated small power production QFs recertification. We additionally limit protests, as described more fully in certification must demonstrate changed that use the same energy resource, it circumstances from the time the Commission acted will be irrebuttably presumed to be at a section IV.E below, by clarifying that on the certification that call into question the separate site from those affiliated small protests may be made to an initial continued validity of the earlier certification. certification (both self-certification and 734 See APPA Comments at 21; Center for Growth power production QFs. If a small power and Opportunity Comments at 5–6; Consumers production facility seeking QF status is application for Commission certification) filed on or after the Energy Comments at 4; East River Comments at 1– located more than one mile but less than 2; EEI Comments at 43; ELCON Comments at 35; ten miles from any affiliated small effective date of this final rule, but only Governor of Idaho Comments at 1; Idaho to a recertification (both self- Commission Comments at 5–7; Idaho Power power production QFs that use the same Comments at 13; Missouri River Energy Comments energy resource, it will be rebuttably recertification and application for Commission recertification) filed on or at 5; Mr. Moore Comments at 2; Northern Laramie presumed to be at a separate site from Range Alliance Comments at 2; NorthWestern after the effective date of this final rule those affiliated small power production Comments at 9; NRECA Comments at 14–15; that makes substantive changes to the Portland General Comments at 14. QFs. existing certification. We adopt the 735 APPA Comments at 21; Center for Growth and proposal to limit protests by requiring Opportunity Comments at 5–6; Consumers Energy 730 18 CFR 35.36(a)(9)(iii). Comments at 4; East River Comments at 1–2; EEI 731 See 16 U.S.C. 796(17)(A)(ii) (defining small that once the Commission has Comments at 43; ELCON Comments at 35; Governor power production facility as, inter alia, ‘‘a facility affirmatively certified an applicant’s QF of Idaho Comments at 1; Idaho Commission which is an eligible solar, wind, waste, or Comments at 5–7; Idaho Power Comments at 13; geothermal facility, or a facility which—. . . has a 732 We note that a protester must separately file Missouri River Energy Comments at 5; Mr. Moore power production capacity which, together with for intervention seeking to be made a party to the Comments at 2; Northern Laramie Range Alliance any other facilities located at the same site (as proceeding; the filing of a protest does not make Comments at 2; NorthWestern Comments at 12; determined by the Commission), is not greater than that person or entity a party. 18 CFR 385.102(c), NRECA Comments at 14–15; Portland General 80 megawatts’’). 385.211(a)(2). Comments at 14.
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gaming of the current one-mile rule.736 d. Site Definition site.’’ In that regard, we change Con Edison argues that utilities are not i. Comments references to ‘‘separate facilities’’ or overwhelmed with QFs using the one- ‘‘the same facility’’ to ‘‘at separate sites’’ mile rule and there is little to no 473. Solar Energy Industries state that, or ‘‘at the same site.’’ evidence to the contrary.737 sPower in El Dorado County Water Agency, the Commission found that ‘‘the critical test 477. The NOPR refers to determining states that it is difficult to see how under PURPA relates to whether the whether affiliated facilities are ‘‘separate developers that comply with this clear facilities are located at one site rather facilities’’ or ‘‘a single facility.’’ bright-line rule could be said to be However, both the statute and the 738 than whether they are integrated as a circumventing. New England Small project.’’ 742 Solar Energy Industries existing regulations contemplate that Hydro argues that the Commission is argue that the proposed rule, as drafted, the Commission will determine what is attempting to address perceived abuses abandons the focus on whether the ‘‘the same site,’’ 749 and do not require of the 80 MW limitation by burdening facilities are located at one site and the Commission to determine whether projects that do not abuse the system.739 transforms it into an analysis as to two facilities are a single facility. The ii. Commission Determination whether affiliated QFs are part of the statute defines a small power same project. Solar Energy Industries production facility as an eligible facility, 472. The record shows that, since the similarly contend that it is arbitrary to which, together with other facilities establishment of the one-mile rule in the change from a ‘‘same site’’ to an located at the same site (as determined PURPA Regulations in 1980, the ‘‘integrated project’’ standard.743 by the Commission), has a power development of large numbers of 474. NIPPC, CREA, REC, and OSEIA production capacity no greater than 80 affiliated renewable resource facilities, state that the existing rule is a MW,750 and the Commission’s requires a revision of the one mile-rule. reasonable means of implementing the regulations have long approached the We find that the final rule will reduce statutory phrase ‘‘same site,’’ matter as defining how to determine the opportunity for developers of small particularly given the statutory directive ‘‘the same site.’’ 751 We find that the power production facilities to to encourage QF development, and state Commission’s determination of whether that they prefer the current bright line circumvent the current one-mile rule by or not a small power production facility rule.744 Allco argues that the proposed strategically siting small power is a QF (i.e., exceeds a power production rule is divorced from the statutory use production facilities that use the same capacity of 80 MW) should continue to of ‘‘site.’’ Allco asserts that the be focused on whether the small power energy resource slightly more than one Commission lacks authority to define mile apart.740 While such production facility seeking QF status the term ‘‘site’’ in a manner other than and other nearby affiliated small power circumvention may not be an everyday one reasonably related to its ordinary production QFs are at the same site or occurrence, we agree with commenters meaning and argues that the at separate sites. that the record demonstrates it is still a Commission’s definition of site sufficient possibility under the current arbitrarily limits QF development for no 478. We also modify the NOPR regulations that the Commission is apparent reason.745 The DC Commission proposal to change the irrebuttable and justified in addressing it in order to would like the Commission to leave the rebuttable presumptions regarding comply with the statute.741 The final resolution of certain disputes over affiliated facilities to instead apply to rule, as adopted, still retains the whether QFs are separate to state affiliated small power production presumption that small power commissions.746 Idaho also requests that qualifying facilities. As noted, the NOPR production QFs more than one mile states be given as much discretion as refers to determining whether affiliated apart are located at separate sites, but possible.747 facilities are ‘‘separate facilities’’ or ‘‘a simply makes the presumption 475. EEI states that the interpretation single facility.’’ We find that only rebuttable for small power production of ‘‘same site’’ is determined by the affiliated small power production QFs QFs located more than one mile but less Commission, and that there is nothing are relevant to the determination of than 10 miles apart, allowing the in the statute that prevents the whether the small power production Commission the ability to address those Commission from modifying its facility seeking QF status and other circumstances. interpretation of the term ‘‘same nearby facilities are at the same site or site.’’ 748 separate sites.752 Correspondingly, as 736 Solar Energy Industries Comments at 51; ii. Commission Determination further detailed below, we will allow Southeast Public Interest Organizations Comments entities challenging a QF certification at 31; SC Solar Alliance Comments at 19. 476. We modify the NOPR proposal to (both self-certification and application 737 Con Edison Comments at 5. change terminology relating to the for Commission certification) or 738 sPower Comments at 5. determination of whether small power recertification (both self-recertification 739 New England Small Hydro Comments at 17. production facilities are separate and application for Commission 740 The regulation, in practice, is only of facilities to focus not on whether they recertification) to rebut the presumption consequence if the facilities located ‘‘at the same are separate facilities, but rather to site’’ would exceed a power production capacity of that a small power production facility mirror the statutory language and thus 80 MW, as that is the size limit for a small power seeking QF status is at a separate site production facility to qualify as a QF. 16 U.S.C. focus on whether they are at ‘‘the same 796(17)(A)(ii). from any affiliated small power 741 production QFs that use the same See APPA Comments at 21; Center for Growth 742 Solar Energy Industries Comments at 60 and Opportunity Comments at 5–6; Consumers (quoting El Dorado Cty. Water Agency, 24 FERC energy resource and that are located Energy Comments at 4; East River Comments at 1– ¶ 61,280, at 61,578 (1983)). 2; EEI Comments at 43; ELCON Comments at 35; 743 Id. at 61–62. 749 Governor of Idaho Comments at 1; Idaho 16 U.S.C. 796(17)(A)(i); 18 CFR 292.204(a). 744 NIPPC, CREA, REC, and OSEIA Comments at 750 Commission Comments at 5–7; Idaho Power 16 U.S.C. 796(17)(A)(i). 70. Comments at 13; Missouri River Energy Comments 751 18 CFR 292.204(a). 745 at 5; Mr. Moore Comments at 2; Northern Laramie Allco Comments at 16. 752 We note, however, that, in the context of a Range Alliance Comments at 2; NorthWestern 746 DC Commission Comments at 9. PURPA section 210(m) proceeding, all affiliates are Comments at 9; NRECA Comments at 14–15; 747 Idaho Comments at 1. relevant in evaluating whether a QF has Portland General Comments at 14. 748 EEI Comments at 42. nondiscriminatory access to a competitive market.
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more than one but less than 10 miles 481. Regarding the requests to allow is common for projects on the from it.753 states to decide whether affiliated small distribution system to be within two 479. We therefore modify the power production QFs are located at miles of a substation or three-phase language proposed in the NOPR. In sum, separate sites, we note that, in PURPA lines to reduce interconnection costs. we find that if a small power production section 201, now codified in section 3 Borrego Solar states that it is also facility seeking QF status is located one (17) of the FPA, Congress authorized the common for multiple unaffiliated mile or less from any affiliated small Commission to determine whether the developers to site their projects in a power production QFs that use the same applicant and other facilities are located single area within just a few miles of energy resource, it will be irrebuttably at the same site. This Commission will each other, and later sell those projects presumed to be ‘‘at the same site’’ as therefore continue to make these to a single entity much later in the those affiliated small power production determinations. process, inadvertently violating the 759 QFs (rather than a single facility at a e. Distance Between Facilities Commission’s rules. Borrego Solar single site, as proposed in the NOPR). would like the Commission to exclude i. Comments The Commission finds that if a small projects directly interconnected to the power production facility seeking QF 482. Several commenters contend that distribution system or initially status is located ten miles or more from the proposal to institute a rebuttable developed by different entities from any any affiliated small power production presumption for facilities that are more presumption of common development. QFs that use the same energy resource, than one mile but less than 10 miles Borrego Solar urges the Commission to, it will be irrebuttably presumed to be at apart is arbitrary and lacks sufficient at a minimum, establish a streamlined, a separate site from those affiliated supporting evidence.754 ELCON notes low-cost option for challenging any small power production QFs (rather that the choice of 10 miles as the presumption of common development, than separate facilities at separate sites, threshold is not supported by any to avoid casting a chill over project as proposed by the NOPR). We find that evidence.755 development and driving developers if a small power production facility 483. Regarding the proposed and long-term owners out of the market seeking QF status is located more than rebuttable presumption for QFs more due to the risks of having the projects one but less than ten miles from any than one but less than 10 miles apart, disqualified.760 affiliated small power production QFs Terna Energy argues that the NOPR 486. North Carolina DOJ argues that that use the same energy resource, it effectively increases the ‘‘exclusion the proposed rule, by discouraging will be rebuttably presumed to be at a zone’’ around a QF’s electrical facilities from being placed close to one separate site from those affiliated small generating equipment from another, also runs counter to a North power production QFs (rather than approximately three square miles Carolina policy based on efficient use of separate facilities at separate sites, as (3.1415 square miles, the circle with electric resources.761 North Carolina proposed in the NOPR). one-mile radius around the QF’s DOJ and North Carolina Commission electrical generating equipment, Staff state that the rules in North 480. Purchasing electric utilities and assuming a point generating source) to Carolina incentivize the installation of others will be able to file a protest and over 300 square miles (i.e. a 10-mile production facilities close to substations identify factors attempting to rebut the radius circle), a 100-times increase to so projects naturally appear in clusters presumption for a small power the ‘‘exclusion area’’ for a single QF.756 production facility seeking QF status surrounding transmission and 484. New England Small Hydro notes 762 that has an affiliated small power that hydroelectric generators are located distribution infrastructure. North production QF that uses the same where river conditions are ideal for Carolina DOJ says that the proposed rule energy resource more than one but less generating and that, while they are not fails to take into account the complex than 10 miles from it, and argue that the generally located within one mile, there and regionally specific factors driving small power production facility seeking may be some projects owned by the siting, financing, operation, and 763 QFs status should be treated as ‘‘at the affiliates that are within 10 miles of maintenance of production facilities. same site’’ as the affiliated small power each other.757 487. Industrial Energy Consumers production QF located more than one 485. Borrego Solar opposes applying state that the NOPR does not distinguish but less than 10 miles from it (rather the proposed changes to the one-mile between merchant small power than as a single facility, as proposed in rule to distributed generation and finds production QFs built to sell electricity the NOPR). We will allow a small power that it would restrict the ability of to third parties and self-supply QFs production facility seeking QF status to developers to follow market signals built primarily to support provide further information in its when locating projects and significantly manufacturing or industrial processes. certification (both self-certification and increase the regulatory burden. Borrego Industrial Energy Consumers state that application for Commission Solar notes that there are several reasons there are many manufacturing company certification) or recertification (both that otherwise different projects from sites that are of a 10-mile length. self-recertification and application for the same company would be within 10 Industrial Energy Consumers state that Commission recertification) to miles of each other, including land the Commission’s proposed changes to preemptively defend against rebuttal by zoning restrictions, available substation the one-mile rule should be clarified to identifying factors that affirmatively capacity, and optimal topology or exclude ‘‘self-supply’’ QFs.764 758 show that its facility is indeed at a insolation. Borrego Solar notes that it 488. Solar Energy Industries believes separate site from an affiliated small that for facilities less than one mile power production QF located more than 754 Allco Comments at 16; Ares Comments at 7; one but less than 10 miles from it (rather Borrego Solar Comments at 4; ELCON Comments at 19; Public Interest Organizations Comments at 93; 759 Id. at 4. than separate facilities at separate sites, SC Solar Alliance Comments at 17; Solar Energy 760 Id. at 5. as proposed in the NOPR). Industries Comments at 60, 62. 761 North Carolina DOJ Comments at 8. 755 ELCON Comments at 35–36. 762 Id.; North Carolina Commission Staff 753 Though not at issue here, we also note that the 756 Terna Energy Comments at 4. Comments at 6. facilities need to use the same energy resource. 18 757 New England Small Hydro Comments at 17. 763 North Carolina DOJ Comments at 6. CFR 292.204(a)(1). 758 Borrego Solar Comments at 3–4. 764 Industrial Energy Consumers Comments at 16.
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apart the Commission should continue small power production facilities that show that its facility is indeed at a to waive the rule where appropriate.765 are affiliated and may use the same separate site from affiliated small power 489. Regarding the proposed energy resource but that are sufficiently production QFs more than one but less irrebuttable presumption that facilities far apart that it is reasonable to treat than 10 miles from it. Additionally, we located more than 10 miles apart are them as irrebuttably at separate sites. note that we are retaining waiver separate facilities, NorthWestern urges The Commission finds that 10 miles or provision in 18 CFR 292.204(a)(3), the Commission to consider increasing more is a reasonable distance to treat allowing the Commission to waive the the distance. NorthWestern explains such facilities as irrebuttably at separate method of calculation of the size of the that its operations in Montana are sites. For affiliated small power facility for good cause.770 geographically very expansive and 10 production facilities using the same 493. Borrego Solar raises the concern miles in Montana is not a substantial resource that are more than one mile but that unaffiliated developers may site distance, especially when compared to less than 10 miles apart, the their projects within a few miles of each other states that are geographically Commission finds that the distinction other, and later sell those projects to a much smaller. NorthWestern states that between same site or separate site is not single entity much later in the process, Montana’s electric system has more than as clear, and therefore finds that it is inadvertently violating the 24,450 miles of electric transmission reasonable to treat them as rebuttably at Commission’s rules. The Commission and distribution lines to serve separate sites, and to allow interested finds that it is reasonable to expect the approximately 374,000 customers, and parties to provide evidence to attempt to single purchasing entity in the example that its electric operations are very rural rebut that presumption. The to be on notice about the size and and cover more than 97,500 square Commission finds that establishing locations of its QF acquisitions and the miles.766 NorthWestern therefore these reasonable distances, and requirements of both PURPA and the recommends that the Commission particularly establishing the ability to Commission’s regulations, just as it consider expanding this distance to rebut the presumption of separate sites would need to consider other regulatory accommodate utilities in the West that for affiliated small power production requirements associated with its have very large service territories.767 facilities more than one mile but less acquisition. Moreover, ownership by a single entity of multiple small power ii. Commission Determination than 10 miles apart, better allows the Commission to address the evolving production QFs in close proximity to 490. We adopt the NOPR proposal shape and configuration of resources, each other that together exceed a power that an entity can seek to rebut the such as modular solar or wind power production capacity of 80 MW, and presumption of separate sites only for plants, that are being developed as QFs, whether this improperly circumvents an entity seeking small power and provides for improved the Commission’s regulations, is production QF status with an affiliated administration of PURPA. The precisely what the new rebuttable small power production QF or QFs that Commission therefore finds that the presumption is seeking to address. are located more than one and less than one-mile and 10-mile limits are 494. Regarding Industrial Energy 10 miles from it. reasonable inflection points for Consumers’ request that the 491. We recognize, as we have differentiating between the same site Commission’s changes be clarified to 768 previously for the one-mile rule, that and separate sites. exclude ‘‘self-supply’’ QFs, the it is debatable as to where exactly these 492. The Commission understands Commission declines to do so. PURPA thresholds are most appropriately set. that there may be many reasons that limits the power production capacity of PURPA requires that no small power guide developers’ decisions on where to a small power production QF, together production facility, together with other site facilities, and for siting them near with any other facilities located at the facilities located ‘‘at the same site,’’ to (or far from) each other. The same site (as determined by the exceed 80 MWs, and Congress has Commission reiterates that for affiliated Commission), to 80 MW.771 The tasked the Commission with defining small power production QFs that are Commission finds that Industrial Energy what constitutes facilities being at the more than one and less than 10 miles Consumer’s argument that ‘‘self-supply’’ same site for purposes of PURPA. We apart, there is still a presumption that QFs are built primarily to support find that providing set geographic they are at separate sites, though the manufacturing and industrial processes distances will limit unnecessary Commission today makes that does not negate the fact that the ‘‘self- disputes over whether facilities are at presumption a rebuttable supply’’ QFs in question are small the same site, and therefore must choose presumption.769 We also adopt today power production facilities limited to 80 reasonable distances at which small the proposal to allow an entity seeking MW. Similarly, its argument also does power production facilities will be QF status to provide further information not justify different application of the considered irrebuttably at the same site in its certification (both self-certification same site determination. The or irrebuttably at separate sites. There and application for Commission Commission will therefore apply the are some affiliated small power certification) or recertification (both same site determinations to all small production facilities using the same self-recertification and application for power production QFs. The energy resource that are so close Commission recertification) to Commission notes that, as with other together that it is reasonable to treat preemptively defend against rebuttal by small power production QFs, an them as irrebuttably at the same site. identifying factors that affirmatively individual ‘‘self-supply’’ QF may assert The Commission finds that one mile or relevant factors to show why it should less is a reasonable distance to treat 769 For hydroelectric generating facilities, the not be considered to be at the same site such facilities as irrebuttably at the regulations currently provide that the same energy as an affiliated small power production same site. Likewise, there are some resources essentially means ‘‘the same impoundment for power generation,’’ see 18 CFR QF that is more than one but less than 292.204(a)(2)(i), and it is unlikely that hydroelectric 10 miles away from it. For example, if 765 Solar Energy Industries Comments at 60–61 generating facilities located more than a mile apart a self-supply facility seeking QF status (citing Windfarms, Ltd., 13 FERC ¶ 61,017, at 61,032 would rely on the same impoundment. Should that was within 10 miles of an affiliated (1980) (Windfarms)). circumstance arise, though, the applicant facility 766 NorthWestern Comments at 10. could seek waiver, arguing that the facilities should 767 Id. not be considered to be at the same site. See 18 CFR 770 See 18 CFR 292.204(a)(3). 768 See Windfarms, 13 FERC at 61,032. 292.204(a)(3). 771 16 U.S.C. 796(17)(A)(ii).
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small power production QF, but the 498. Several commenters offer modify the list of factors where energy from each facility was used additional factors for consideration.774 appropriate.783 primarily to supply different end users, North Carolina Commission Staff states 500. NorthWestern states that it has the self-supply facility seeking QF status that the Commission should also concerns about the Commission’s could argue that this fact supports that consider whether the QF is attempting reliance on 18 CFR 35.36(a)(9), because, it is at a separate site from the affiliated to game the system by getting rates for according to NorthWestern, developers small power production QF, and the which they would otherwise be carefully structure the ownership of Commission would consider this fact in ineligible, as well as where the facilities their companies to ensure that they are its evaluation. were constructed and when common not, technically, legal affiliates when, in 775 495. Regarding Terna Energy’s ownership commenced. Northern fact, considering the totality of the contention that the new rule causes a Laramie Range Alliance suggests that circumstances, they are affiliates. For 100-times increase to the ‘‘exclusion relevant factors could include, for these reasons, NorthWestern strongly zone’’ around a QF’s electrical example, direct or indirect ownership urges the Commission to consider the generating equipment, we believe that by the same party or parties, physical characteristic factors identified the rule providing for a rebuttable interconnection at a single substation, for determining the distance between facilities in order to also determine if presumption for affiliated small power simultaneous site acquisition and/or 776 facilities are owned by affiliates.784 production QFs located more than one state and local permitting. Allco NorthWestern states that, for example, if but less than 10 miles apart, as proposes that the criteria to determine if one facility only owns five percent promulgated today, is necessary to sites are separate should be whether voting interest in another facility, but address allegations of improper they share infrastructure, private roads the two facilities have one circumvention of the one-mile rule that or interconnection agreements in 777 interconnection request and use the both previously and in comments have common. NRECA proposes that the types of evidence could include same collector system, the Commission been presented to the Commission. evidence of contemporaneous should be able to find that there are 496. We reject NorthWestern’s request construction, shared interconnection, sufficient facts so that they are treated to increase the distance of the common communication and control, as affiliates for purposes of the one-mile irrebuttable presumption of separate use of the same step-up transformer, and rule.785 sites to more than 10 miles. common permitting and land leasing.778 501. Several commenters opposed the Northwestern argues that 10 miles is not The Idaho Commission proposes that Commission’s proposed factors.786 SC a significant distance compared to the relevant factors include whether they Solar Alliance states that the range of geographic expansiveness of its system. share an interconnection agreement, factors included under the categories of We believe this is an irrelevant obtained local, state or federal permits ‘‘ownership/other characteristics’’ and comparison; what matters is not how under the same application or as the ‘‘physical characteristics’’ is overly large or small the purchasing electric same entity, and if they have a revenue broad and could be subject to utility’s service territory is or how rural sharing agreement.779 inconsistent or problematic it may be or how many miles of Portland General suggests that the interpretation. For example, SC Solar transmission lines it may have, but the Commission include past ownership of Alliance states that the term question presented by the statute, i.e., projects as a factor.780 ‘‘infrastructure’’ is undefined and whether or not the affiliated small 499. Regarding the relative weight of ambiguous, and ‘‘control facilities,’’ power production QFs are located at the the factors, the Southeast Public Interest ‘‘access and easements,’’ ‘‘collector same site. As described above, we have Organizations would like the systems or facilities,’’ and ‘‘property decided that 10 miles is a reasonable Commission to identify which factors leases’’ are all vague and imprecise.787 and appropriate distance at which to would be definitive in a QF being able SC Solar Alliance agrees with Solar apply the irrebuttable presumption of to proactively demonstrate that their site Energy Industries’ emphasis that under separate sites, irrespective of how is separate.781 Both Basin and EEI no scenario should common financing expansive, or diminutive, the would like the Commission to clarify be relevant, as unquestionably distinct purchasing electric utility’s system may that the list of factors to be considered facilities are frequently financed as part be. is not exhaustive or weighted.782 of a bundled portfolio.788 NorthWestern contends that the 502. NIPPC, CREA, REC, and OSEIA f. Factors Commission should specify that a strongly oppose use of common i. Comments showing of any one factor is sufficient interconnection facilities as a factor to rebut the presumption. NorthWestern because separately owned facilities are 497. Several commenters state that argues that the Commission should have likely to share interconnection facilities they support the factors for evaluating the flexibility to deal with this issue on to reduce costs and build off of existing whether or not facilities are at the same a case-by-case basis and expand or infrastructure. NIPPC, CREA, REC, and site, which are described in the OSEIA state that, given that there are 772 NOPR. SC Solar Alliance and the 774 Allco Comments at 16; Idaho Commission only a limited number of qualified Southeast Public Interest Organizations Comments at 6–7; North Carolina Commission Staff support considering a common point of Comments at 6; Northern Laramie Range Alliance 783 NorthWestern Comments at 11. Comments at 3; NRECA Comments at 15–16. interconnection or a single real estate 784 Id. at 12. 775 North Carolina Commission Staff Comments at 785 Id. parcel or owner as factors weighing 6. 786 Ares Comments at 5–7; Borrego Solar towards a determination that multiple 776 Northern Laramie Range Alliance Comments Comments at 3–4; NIPPC, CREA, REC, and OSEIA projects are a single facility.773 at 3. 777 Comments at 73; Solar Energy Industries Comments Allco Comments at 16. at 62; SC Solar Alliance Comments at 16–18; 778 772 APPA Comments at 21–22; Connecticut NRECA Comments at 15–16. Southeast Public Interest Organizations Comments Authority Comments at 19–20; Idaho Commission 779 Idaho Commission Comments at 6–7. at 34. Comments at 6–7; NARUC Comments at 5; Portland 780 Portland General Comments at 15. 787 SC Solar Alliance Comments at 17. General Comments at 15. 781 Southeast Public Interest Organization 788 Id. at 16 (citing Solar Energy Industries 773 SC Solar Alliance Comments at 17; Southeast Comments at 34. Supplemental Comments, Docket No. AD16–16, at Public Interest Organization Comments at 34. 782 Basin Comments at 12; EEI Comments at 45. 55–56 (August 28, 2019)).
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maintenance providers and other owned by one solar developer to be the same site.’’ In addition, we modify service contractors, the fact that two considered part of a solar facility owned the NOPR proposal to identify the facilities use the same contractors by a distinct and unaffiliated solar following additional physical factors as should not be relevant to common developer. SC Solar Alliance states that indicia that small power production ownership and control of two facilities. any rebuttable presumption should facilities should be considered to be NIPPC, CREA, REC, and OSEIA state include ‘‘separate ownership’’ as a located at the same site: (1) Evidence of that the fact that two facilities are dispositive indication of separate shared control systems; (2) common constructed within 12 months of each facilities.793 permitting and land leasing; and (3) other could merely be evidence that the 506. North Carolina DOJ states that shared step-up transformers. market conditions at the time favored the element of common control is a 509. Specifically, we adopt the factors construction of the facilities, not that challenging question because of the listed below as examples of the factors the facilities are intended to be one limited number of companies available the Commission may consider in facility.789 to operate renewable energy facilities. deciding whether small power 503. SC Solar Alliance states that the North Carolina DOJ asserts that a production facilities that are owned by extensive list of ‘‘ownership/other handful of firms are responsible for the the same person(s) or its affiliates are characteristics’’ as written is highly operation and maintenance work for located ‘‘at the same site’’: (1) Physical problematic. Control and maintenance, close to half of the country’s solar characteristics, including such common particularly in North and South energy production facilities.794 characteristics as: Infrastructure, Carolina where there are a substantial 507. NIPPC, CREA, REC, and OSEIA property ownership, property leases, number of distributed solar facilities, is state that the Commission should control facilities, access and easements, often contracted for by a limited number include substantially more specific interconnection agreements, of solar maintenance companies. parameters about what evidence a interconnection facilities up to the point Allowing the existence of a common project would need to submit to of interconnection to the distribution or maintenance company to in any way demonstrate single-project status and transmission system, collector systems dictate QF status is entirely should make clear that this test has no or facilities, points of interconnection, unreasonable and bears no relationship applicability unless generators within motive force or fuel source, off-take to the question at hand.790 Similarly, one to 10 miles are owned by the same arrangements, connections to the other factors included in the NOPR, company or affiliates of the same electrical grid, evidence of shared including the sale of electricity to a company. NIPPC, CREA, REC, and control systems, common permitting common utility, a common financing OSEIA assert that ‘‘the decisive factors and land leasing, and shared step-up lender, the use of a mutual contractor are the ‘stream of benefits’ from the transformers; and (2) ownership/other for project construction, the timing of project and control of the venture,’’ characteristics, including such which the Commission defined ‘‘to contract execution, and the timing of characteristics as whether the facilities include entitlement to profits, losses, facilities being placed into service do in question are: Owned or controlled by and surplus after return of initial capital not provide relevant evidence as to the same person(s) or affiliated contribution.’’ 795 These criteria could 797 common ownership requiring facilities persons(s), operated and maintained be used to objectively evaluate whether to be considered a single QF. Applying by the same or affiliated entity(ies), two QFs within 10 miles are commonly these factors would create an selling to the same electric utility, using owned or controlled, as opposed to also unnecessary and undue burden on QFs, common debt or equity financing, putting two separately owned and constructed by the same entity within particularly smaller distribution- controlled facilities at risk of violating 12 months, managing a power sales connected QFs that have been the rule based solely on physical agreement executed within 12 months constructed relatively nearby and which characteristics.796 of a similar and affiliated small power often rely on a limited number of local production qualifying facility in the contractors and partners to complete ii. Commission Determination same location, placed into service this necessary work.791 508. We adopt the physical and within 12 months of an affiliated small 504. The Southeast Public Interest ownership factors proposed in the power production QF project’s Organizations are concerned that the NOPR, including as noted above the commercial operation date as specified use of common contractors, financing ability of a QF to preemptively identify in the power sales agreement, or sharing entity, maintenance companies, or sales the factors in its filing in anticipation of engineering or procurement contracts. to the same entity and such could be protests to its filing. As explained above 510. We adopt the NOPR proposal to used against QFs that are built in the in section IV.D.1.d we are modifying the allow a small power production facility same area but are otherwise separate NOPR proposal to change terminology 792 seeking QF status to provide further sites. relating to the determination of whether information in its certification (both 505. SC Solar Alliance states that the facilities are separate facilities to focus self-certification and application for Commission’s statement that ‘‘no single not on whether they are separate Commission certification) or factor would be dispositive’’ is facilities, but rather to mirror the recertification (both self-recertification troubling, and that it is inconceivable statutory language and thus focus on and application for Commission that QF ownership would not be whether they are at ‘‘the same site.’’ recertification) to preemptively defend dispositive in any such rebuttable Accordingly, we adopt these factors as against rebuttal, by identifying factors presumption. SC Solar Alliance states relevant indicia of whether affiliated that affirmatively show that its facility that it would be wholly unjust and small power production facilities are ‘‘at is indeed at a separate site from unreasonable to consider a solar facility 793 SC Solar Alliance Comments at 17. 797 Definitionally, if the facilities are not owned 789 NIPPC, CREA, REC, and OSEIA Comments at 794 North Carolina DOJ Comments at 8. by the same person(s) or its affiliates, then the issue 73–74. 795 NIPPC, CREA, REC, and OSEIA Comments at of compliance with the one-mile rule, even as 790 SC Solar Alliance Comments at 17–18. 73 (citing CMS Midland, Inc., 50 FERC ¶ 61,098, at revised in this final rule, becomes irrelevant. See 18 791 Id. 61,278–279 (1990), aff’d Mich. Municipal Coop. CFR 292.204(a)(1). That is, two facilities owned by 792 Southeast Public Interest Organizations Group v. FERC, 990 F.2d 1377 (D.C. Cir. 1993)). two different persons are definitionally not located Comments at 34. 796 Id. at the same site.
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affiliated small power production QFs encourage cogeneration and small would properly not be entitled to the more than one but less than 10 miles power production.’’ 802 exemptions that are available to QFs. away from it. Any party challenging the ii. Commission Determination 2. Electrical Generating Equipment QF certification (both self-certification and application for Commission 514. The Commission’s current one- a. NOPR Proposal certification) or recertification (both mile rule is a rule used to measure, 515. The Commission proposed self-recertification and application for ultimately, whether or not small power defining ‘‘electrical generating Commission recertification) that makes production facilities are within equipment’’ to refer to all boilers, heat substantive changes to the existing PURPA’s limit on small power recovery steam generators, prime certification would, in its protest, be production QFs of 80 MW, and thus movers (any mechanical equipment allowed to correspondingly identify whether such facilities are QFs, and the driving an electric generator), electrical factors to show that the small power Commission has consistently applied generators, photovoltaic solar panels production facility seeking QF status the one-mile rule generally to the and/or inverters, fuel cell equipment and affiliated small power production regulations issued pursuant to and/or other primary power generation QFs more than one but less than 10 from PURPA.803 There is no persuasive equipment used in the facility, that facility are actually at the same site. reason it should not be equally applied excluding equipment for gathering 511. We reiterate that, as a general in the context of the regulations energy to be used in the facility. The matter, no one factor is dispositive.798 implementing section 210(e) of PURPA. Commission expected that each wind Rather, we will conduct a case-by-case That being said, we are not removing or turbine on a wind farm and each solar analysis, weighing the evidence for and amending the exemptions provided by panel in a solar facility would be against, and the more compelling the the regulations implementing PURPA considered ‘‘electrical generating showing that affiliated small power section 210(e). If a QF qualifies for equipment’’ because each wind turbine production QFs should be considered to exemptions pursuant to PURPA section and each solar panel is independently be at the same site as the small power 210(e) and the Commission’s capable of producing electric energy. production facility seeking QF status in implementing regulations,804 then that The Commission sought comments on a specific case, the more likely the QF is entitled to those exemptions. But, this approach, and on what Commission will be to find that the if a small power production facility does equipment—if not individual wind facilities involved in that case are not meet the 80 MW limit for whatever turbines and solar panels—should be indeed located ‘‘at the same site.’’ reason, including because an affiliated considered ‘‘electrical generating g. Exemptions small power production QF is located at equipment’’ for wind and solar plants. the same site, then it does not qualify 516. The Commission also proposed i. Comments for such exemption because it would specifying how to measure the distance 512. Ares notes that small power not be a QF.805 There is nothing between facilities that have multiple, producers have certain exemptions from inappropriate about this consequence; a separate sets of ‘‘electrical generating utility regulation, including exemptions facility that is not a QF is not entitled equipment’’ such as wind farms and from FPA sections 203 and 204 if under to the exemptions available to QFs. We solar facilities. The Commission 30 MW and exemptions from FPA further note that there will now be a proposed measuring the distance sections 205 and 206 if under 20 MW rebuttable presumption that affiliated between the nearest ‘‘electrical (or 30 MW in special cases), as well as small power production QFs located generating equipment’’ of any two exemptions from some state utility laws more than one but less than 10 miles facilities such that, for the facilities to and PUHCA if under 30 MW.799 Ares is apart are indeed located at separate be presumed irrebuttably separate, all concerned that the rebuttable sites. That is no different than the one- such equipment of one QF must be at presumption and the factors will make mile rule as it has long existed. What is least 10 miles away from all such many small power QFs ineligible for different is that, with this final rule, the equipment of another QF. The these exemptions.800 Ares argues that presumption will be rebuttable while Commission believed this is the the aggregation of small power QFs may before it was irrebuttable; the appropriate way to measure the distance result in many required applications for presumption that the facilities are at between affiliated sets of ‘‘electrical market-based rate authority for sales separate sites, though, remains generating equipment’’ because this that are minor. Ares argues that the unchanged. Only if a party rebuts that reflects the distance between the Commission has no basis for, did not presumption and shows that the small components directly tied to producing consider, and has sought no comments power production facility seeking QF electric energy. on the removal of regulatory obligations status and affiliated small power 517. The Commission sought when small power QFs are aggregated production QFs should be viewed as comment on this approach, and whether under the new ten-mile proposal.801 located at the same site will the capacity alternative approaches would be more 513. Solar Energy Industries note that of such facilities be counted together. In appropriate. For example, some parties many facilities could lose their FPA and that event, if the small power had suggested in QF certification PUHCA exemptions if there are multiple production facility seeking QF status proceedings that the Commission could facilities within 10 miles, which is and affiliated small power production use the geographic center of the plant particularly harmful to QFs that are not QFs located at the same site have a footprint or a weighted average of the selling to their host utility. Solar Energy locations of the individual pieces of combined power production capacity 806 Industries state that PURPA section that exceeds 80 MW, the entity seeking ‘‘electrical generating equipment.’’ 210(e)(1) instructs that the Commission QF status would not qualify as a QF and The Commission was concerned these shall exempt QFs from regulation if approaches could be easily gamed, but sought comment on whether they may such exemption ‘‘is necessary to 802 Solar Energy Industries Comments at 55. 803 SunE B9 Holdings LLC, 157 FERC ¶ 61,044, at be constructed in a way that would 798 But see supra note 797. P 16 & n.24 (2016) (citing Windfarms, 13 FERC prevent gaming, and whether such 799 Ares Comments at 4–5. ¶ 61,017 at 61,031). 800 Id. at 5–6. 804 18 CFR 292.601, 292.602. 806 See Beaver Creek Wind II, LLC, 160 FERC 801 Id. at 11–12. 805 See 16 U.S.C. 796(17)(A)(ii). ¶ 61,052, at P 9 (2017).
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formulations would be preferable to the also requests that the Commission QF. For a wind facility, the proposed approach. affirm that storage does not permit a measurement should similarly be from facility to exceed the maximum size the edge of the small power production b. Comments criteria of a small power production facility seeking QF status’ wind turbine 518. Many commenters support the facility.814 EEI requests that the Form or inverter closest to the edge of the definition of ‘‘electrical generating 556 collect data on storage resources as nearest ‘‘electrical generating equipment’’ proposed in the NOPR.807 well as electrical generating equipment equipment’’ of the affiliated small However, ELCON objects to both the for purposes of measuring distance to an power production QF. For a wind proposed definition of ‘‘electric affiliated small power production QF.815 facility, we clarify that the relevant generating equipment’’ and the c. Commission Determination point for measuring distance of an approach to measuring distance.808 individual wind turbine is the tower 519. Many commenters support the 521. We adopt the NOPR proposal (not the projection of the blade’s method for measuring distance between that ‘‘electrical generating equipment’’ wingspans onto the ground). We also sites proposed in the NOPR, which refers to all boilers, heat recovery steam clarify that only horizontal distances are would require measuring the distance generators, prime movers (any taken into consideration for purposes of between the nearest ‘‘electrical mechanical equipment driving an this rule (such that elevation changes generating equipment’’ of any two electric generator), electrical generators, have no effect on facility distance). affiliated facilities.809 Several photovoltaic solar panels, inverters, fuel 524. We find that the role of battery commenters note their opposition to cell equipment and/or other primary storage in QFs, including with regard to measuring the distance between sites power generation equipment used in the the distance between QFs, is beyond the using the geographic center of the plant facility, excluding equipment for scope in this proceeding. or a weighted average of the locations of gathering energy to be used in the individual pieces of ‘‘electrical facility. Each wind turbine at a wind E. QF Certification Process generating equipment,’’ both methods facility and each solar panel in a solar 1. NOPR Proposal the Commission sought comment on in facility would be considered ‘‘electrical the NOPR.810 The Southeast Public generating equipment’’ because each 525. In the NOPR, the Commission Interest Organizations request wind turbine and each solar panel is proposed to revise 18 CFR 292.207(a) to clarification of whether to measure from independently capable of producing allow interested persons to intervene in, the edge of a solar panel or the center electric energy. and to file a protest of a self-certification of a solar array.811 522. We require the distance between or self-recertification of a facility 520. Several commenters request that the facility seeking small power without the necessity of filing a separate the Commission discuss how energy production QF status and any affiliated petition for declaratory order and storage (sometimes referred to as battery small power production QFs using the without having to pay the filing fee storage) would be considered in relation same energy resource to be measured by required for a declaratory order. Because to the proposed definition of electrical the distance between the nearest an applicant for self-certification or self- generating equipment.812 The California ‘‘electrical generating equipment’’ of recertification is required to serve a Commission requests that a battery each such facility, such that, for the copy of its submission on interested storage facility be excluded from entity seeking QF status to be presumed electric utilities (principally those with consideration as electrical generating irrebuttably at a separate site from any which it is interconnected and those to equipment provided the storage is affiliated small power production QF, which it will be selling) as well as the charged solely by the small power all such equipment of the affiliated relevant state regulatory authorities, the production facility, and that energy small power production QF must be at Commission proposed to allow stored by the storage facility be least 10 miles away from all such interested persons 30 days from the date considered to be of the same energy equipment of the entity seeking small of filing at the Commission to intervene source of that energy before it was power production QF status. The and/or to file a protest (without paying 816 stored.813 The California Commission Commission finds that this is the most a filing fee). appropriate way to measure the distance 526. Any party submitting a protest 807 Alliant Energy Comments at 19; APPA between affiliated sets of ‘‘electrical would have the burden of specifying Comments at 23; Basin Comments at 11; generating equipment’’ at small power facts that make a prima facie Connecticut Authority Comments at 19–20; EEI production facilities because this demonstration that the facility described Comments at 49; Idaho Commission Comments at in the self-certification or self- 6; Kentucky Commission Comments at 7; NRECA reflects the distance between the Comments at 17; Portland General Comments at 16– components directly tied to producing recertification does not satisfy the 17; Southeast Public Interest Organizations electric energy. requirements for QF status. General Comments at 37–38. 523. The point used in the distance allegations that the facility is not a QF 808 ELCON Comments at 36. calculation will always be from the edge without reference to the specific 809 Alliant Energy Comments at 19; APPA of the electrical generating equipment regulatory provision that has not been Comments at 23; Basin Comments at 11; Connecticut Authority Comments at 19–20; EEI closest to the affiliated small power satisfied (and without an explanation Comments at 49; Kentucky Commission Comments production QF’s nearest electrical why the provision has not been at 7; NARUC Comments at 4–5; Portland General generating equipment. Thus, we clarify satisfied), or unsupported assertions Comments at 16–17; Southeast Public Interest that for a solar facility, the measurement that the self-certification does not satisfy Organizations Comments at 37–38. an aspect of the PURPA Regulations, 810 Connecticut Authority Comments at 21; should be from the edge of the small Kentucky Commission Comments at 7; power production facility seeking QF would not satisfy this burden and NorthWestern Comments at 12–13; NRECA status’ solar panel or inverter that is would not be a basis for denial of Comments at 18; Portland General Comments at 18. closest to the edge of the nearest certification. However, if this prima 811 Southeast Public Interest Organizations ‘‘electrical generating equipment’’ of facie burden is met, then the burden Comments at 38. would shift to the applicant submitting 812 Alliant Energy Comments at 19; EEI that affiliated small power production Comments at 46–47; Energy Storage Comments at the self-certification or self- 3; NorthWestern Comments at 13. 814 Id. at 15. 813 California Commission at 16–17. 815 EEI at 51–52. 816 18 CFR 292.207(c)(1).
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recertification to demonstrate that the future recertifications.819 Several information, street address, ownership claims raised in the protest are incorrect commenters note that the application of or operation.827 Terna Energy warns that and that certification is, in fact, the rule to existing or recertifying QFs absent the clarification of legacy warranted. will create uncertainty and cause treatment for existing QF 527. QF self-certification is effective disruptions of the sale of these QFs.820 recertifications, QFs might go to upon filing and would remain effective 531. New England Small Hydro warns extremes to avoid updating their FERC if a protest is filed, until such time as that applying the proposed rule to Form No. 556s with information the Commission rules that certification existing QFs could trigger financing changes.828 is revoked. The Commission proposed defaults if those QFs lose their status.821 533. Solar Energy Industries state that that it would issue an order within 90 The Southeast Public Interest retroactively applying a more-than-one- days of the date the protest is filed. The Organizations state that the proposed but-less-than-10-miles rebuttable Commission also reserved the right to rebuttable presumption has implications presumption to physical facilities that request more information from the for existing solar QFs in the Southeast, were developed based on the original protester, the entity seeking QF status, noting that QFs would be required to one-mile rule will inject instability, will or both.817 If the Commission requests seek recertification as their existing erode trust from the investment more information, the time period for PPAs expire, adding a significant community, and will discourage the 822 the Commission order would be burden. The Southeast Public Interest development of QFs as well as extended to 60 days from the filing of Organizations provide maps showing investment in the industry in general.829 a complete answer to the information the ten-mile radius of utility-scale Ares notes that not granting legacy request. projects could lead to many overlapping treatment to existing QFs is inconsistent affiliated territories under the new with past Commission actions on 528. There may be instances, 823 however, when the Commission may rules. SC Solar Alliance also notes PURPA, such as the granting of legacy need additional time to review the the large number of small solar QFs treatment to existing QF contracts in overlapping within a ten-mile radius record in light of the nature of the Order No. 671 or other QF related across North Carolina and South 830 protests. In those cases, the Commission proceedings. Carolina and finds that the application proposed that, in addition to any 534. New England Small Hydro of the more-than-one-but-less-than-10- extension resulting from a request for supports granting legacy treatment to miles rebuttable presumption to information, the Commission also may existing QFs to avoid upsetting the recertifications will be burdensome and toll the 90-day period during which the settled expectations of existing unwieldy.824 NIPPC, CREA, REC, and 831 Commission commits to act within one generation. New England Small OSEIA warn that the application of the additional 60-day period. The Hydro gives the example of three new rule to existing QFs will effectively Commission proposed to delegate to the hypothetical projects, each located nine bar the transfer or sale (or potentially Commission’s Secretary, or the miles apart that, when capacities are any number of less significant changes) totaled, exceed 80 MW. If there is an Secretary’s designee, the authority to of existing assets that were lawfully toll the 90-day period for this purpose. ownership change that triggers the need qualified under the one-mile rule but for a recertification but the entities 529. The Commission believed these would pass the 80 MW aggregate procedures would allow for timely but remain affiliates, under the threshold under the new rule. NIPPC, Commission’s proposed rule, all three thorough review of protested self- CREA, REC, and OSEIA find this to be certifications and self-recertifications. projects would lose QF status. a violation of the existing QFs According to New England Small The Commission sought comment on 825 contractual and constitutional rights. Hydro, this could trigger defaults under whether these procedures impose an 532. Terna Energy states that granting undue burden on the QF even though financing documents and the utility legacy treatment to existing QFs and might be able to terminate the power the QF remains certified pending the their recertifications is necessary to review. contract, because many PPAs for QFs protect investment decisions and require the project to remain a QF for 2. Comments contracts made under the long-standing the term of the PPA. New England Small one-mile rule.826 Terna Energy contends 530. Many commenters raise the issue Hydro states that, as a result, a minor that, without clarification on the legacy ownership change could have cascading of granting legacy treatment, treatment of recertifications, QFs could negative effects to QFs.832 colloquially known as ‘‘grandfathering,’’ lose their status even for non- to existing QF certifications and their 535. Terna Energy requests that substantive revisions to their FERC existing QFs be granted legacy treatment future recertifications.818 Most of these Form No. 556s such as contact as long as they do not make changes to comments support granting legacy electrical generating equipment of the treatment to current QFs and their 819 Ares Comments at 12; BluEarth Comments at 2; New England Small Hydro Comments at 17; facility, because that is the equipment that determines compliance with the 817 Industrial Energy Consumers Comments at 17; Such information requests could be issued by NIPPC, CREA, REC, and OSEIA Comments at 74; the Commission or by staff under any applicable one-mile rule. Terna Energy argues that Solar Energy Industries Comments at 61–63; SC otherwise an existing QF could be delegated authority. For example, under 18 CFR Solar Alliance Comments at 18; Southeast Public 375.307(b)(3)(ii), the Director of the Office of Energy Interest Organizations Comments at 29–31; Terna subject to challenge anytime it makes a Market Regulation is authorized to ‘‘[i]ssue and sign Energy Comments at 16–18. non-substantive revision to its FERC requests for additional information regarding 820 New England Small Hydro Comments at 17; applications, filings, reports and data processed by Form No. 556, including a change to NIPPC, CREA, REC, and OSEIA Comments at 74; the Office of Energy Market Regulation.’’ contact information, street address, Terna Energy Comments at 16–18. 818 Ares Comments at 12; Basin Comments at 11; ownership, or operator, effectively 821 New England Small Hydro Comments at 17. BluEarth Comments at 2; DC Commission at 9; New 822 Southeast Public Interest Organizations England Small Hydro Comments at 17; Industrial 827 Id. at 2. Energy Consumers Comments at 17; NIPPC, CREA, Comments at 29. 823 828 Id. at 7. REC, and OSEIA Comments at 74; Solar Energy Id. at 30–31. 829 Industries Comments at 61–63; SC Solar Alliance 824 SC Solar Alliance Comments at 18. Solar Energy Industries Comments at 62. Comments at 18; Southeast Public Interest 825 NIPPC, CREA, REC, and OSEIA Comments at 830 Ares Comments at 12. Organizations Comments at 29–31; Terna Energy 75. 831 New England Small Hydro Comments at 17. Comments at 16–18. 826 Terna Energy Comments at 1–2. 832 Id.
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eliminating legacy treatment.833 Terna or litigation risk.844 Several commenters internal company resources to preserve Energy states that granting legacy state that the proposed changes will the status of its already-installed treatment is necessary to protect the lead to uncertainty 845 and deter plant.851 Solar Energy Industries assert sanctity of investments and contracts development.846 that the flood of self-certification filings made in reliance upon the 539. Solar Energy Industries state that and updates would be a substantial Commission’s current PURPA the proposed changes to the one-mile burden on Commission staff and regulations and the one-mile rule.834 rule will substantially increase the provide little value to the Commission Terna Energy submits revised language regulatory burden on QFs and the self- or the public.852 Solar Energy Industries for 18 CFR 292.204(a)(2) and (3) to certification process will no longer be also state that, unless and until the clarify that existing QF recertifications, quick.847 Solar Energy Industries is Commission makes a determination on unless they change the electrical concerned that QFs may need to defend the burden associated with collecting, generating equipment, should not be numerous self-certifications over a reporting, and updating the Connected subject to the new rules.835 facility’s lifetime, and assert that QFs Entity 853 information, it would be 536. Basin, on the other hand, asks could be forced to recertify any time the unjust and unreasonable for the the Commission to be clear that information represented in the Form No. Commission to impose similar burdens recertifications filed by QFs will trigger 556 changes, including ownership on QF entities through the FERC Form application of the proposed rule.836 changes to affiliated facilities located No. 556.854 Solar Energy Industries state Basin also recommends the Commission within 10 miles.848 Solar Energy that the increased regulatory burden allow petitions seeking de-certification Industries state that the burden will be that will arise for these entities is of QFs that have previously filed self- increased exponentially if the one-mile similar in scope and the Commission certifications because some QFs self- rule is expanded in a ten-mile rule.849 has not provided a rationale for the certify at an early stage of project Solar Energy Industries state that the increased information collection development and ultimately never NOPR’s estimate of an additional eight requirements.855 proceed to development.837 hours and $632 per docket for each QF 540. Allco describes the 537. The DC Commission would like self-certification or re-certification is a Commission’s Regulatory Flexibility Act the Commission to clarify whether the substantial underestimation.850 Solar (RFA) analysis of the proposed rules’ changes to the one-mile rule will apply Energy Industries estimate that it would effect on small businesses as improperly to QFs under construction when the require an additional approximately 90 limited to proposed paperwork changes, rule goes into effect.838 The DC to 120 hours per year to comply with ignoring the impact on small QFs’ Commission would like the Commission the new requirements. Solar Energy abilities to construct facilities.856 Allco to leave the issue of legacy treatment of Industries state that a QF could be states that the Commission did not existing QFs up to the states.839 forced to recertify any time the attempt to minimize the impacts on 538. Several commenters oppose the information represented changes, small renewable energy producers, NOPR proposal to allow a party to including ownership changes to consider alternative structures, or protest a self-certification or self- affiliated facilities located within 10 describe these steps or considerations in recertification of a facility without being miles. Solar Energy Industries note that a mandatory final RFA analysis.857 required to file a separate petition for a QF may have to engage in multiple Allco asserts that the Commission failed declaratory order and pay the associated defenses of its status, each time needing to support its finding that the NOPR’s filing fee.840 Several commenters argue to engage legal counsel and devote proposed revisions will not significantly that this proposal will lead to a flood of impact a substantial number of small challenges that will discourage the Organizations Comments at 97–98; Solar Energy entities (specifically, solar energy QFs); 841 Industries Comments at 51–52, 54, 57–58; SC Solar Allco therefore claims that the growth of QFs. Several commenters Alliance Comments at 15–18; Southeast Public state that there will be substantial costs Interest Organizations Comments at 29, 35; sPower Commission violated the Small associated with this proposal that will Comments at 14. Business Regulatory Enforcement fall on ratepayers and QFs.842 Several 844 Con Edison Comments at 5; Distributed Sun Fairness Act.858 commenters state that the proposed Comments at 3; ELCON Comments at 19–20; NIPPC, 541. Solar Energy Industries state that CREA, REC, and OSEIA Comments at 71–72; Public the NOPR lacks important details such changes will lead to increased Interest Organizations Comments at 97–98; Solar administrative burden and expense 843 Energy Industries Comments at 58–60; SC Solar as whether the Commission’s Alliance Comments at 16, 18; Southeast Public determination is subject to rehearing, 833 Terna Energy Comments at 2. Interest Organizations Comments at 29,35; sPower and whether a final decision can be Comments at 14. 834 Id. at 1–2. appealed under the FPA to an appellate 845 Ares Comments at 9; Distributed Sun 835 Id. at 8–9. 859 Comments at 3; ELCON Comments at 19–20, 38; court. Solar Energy Industries state 836 Basin Comments at 11. NIPPC, CREA, REC, and OSEIA Comments at 69– that an adverse determination by the 837 Id. 72; Public Interest Organizations Comments at 97– Commission could impose upwards of 838 DC Commission Comments at 9. 98; Solar Energy Industries Comments at 58–60, 62– $100 million in harm on a QF, and it is 839 63; SC Solar Alliance Comments at 16, 18; Id. unclear whether the QF would have a 840 Allco Comments at 21; BluEarth Comments at Southeast Public Interest Organizations Comments 3; CARE Comments at 7; Con Edison Comments at at 29, 35, 38, 93, 97–98; sPower Comments at 14. path to relief if the Commission erred in 5; Distributed Sun Comments at 3; ENGIE 846 Allco Comments at 16; Borrego Solar its determination. Solar Energy Comments at 4; Public Interest Organizations Comments at 4–5; Biological Diversity Comments at 9; Con Edison Comments at 4–5; Distributed Sun Comments at 9, 97–98; Western Resource Councils 851 Id. at 58. Comments at 144; Solar Energy Industries Comments at 3; NIPPC, CREA, REC, and OSEIA 852 Id. at 53–54. Comments at 57–59. Comments at 72–73; North Carolina DOJ Comments 853 Id. at 54 (citing Data Collection for Analytics 841 Allco Comments at 21; BluEarth Comments at at 8; Public Interest Organizations Comments at 93, and Surveillance and Market-Based Rate Purposes, 3; Distributed Sun Comments at 3; Public Interest 99; Solar Energy Industries Comments at 51–52, 59– Order No. 860, 168 FERC ¶ 61,039, at P 183 (2019)). Organizations Comments at 97; Western Resource 63; SC Solar Alliance Comments at 2, 18; Southeast 854 Councils Comments at 144. Public Interest Organizations Comments at 31–36, Id. at 54, 57. 855 842 Con Edison Comments at 5; ENGIE Comments 38, 93. Id. at 54. at 4; Public Interest Organizations Comments at 97; 847 Solar Energy Industries Comments at 52. 856 Allco Comments at 33. Solar Energy Industries Comments at 58. 848 Solar Energy Industries at 57. 857 Id. 843 Ares Comments at 6; Borrego Solar Comments 849 Id. at 53. 858 Id. at 4; Con Edison Comments at 5; Public Interest 850 Id. at 52. 859 Id. at 58.
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Industries state that the current practice, developers seeking certification with the for declaratory order and submitting the where the challenger bears the Commission should be required to required fee. Conversely, protests can be responsibility of seeking declaratory publish notice in local newspapers in made to QF certifications (both self- relief, strikes an appropriate balance.860 the states in which the development certification and application for 542. Several commenters, on the other would be located, in order to alert Commission certification) or hand, support the NOPR proposal to affected parties so they could intervene recertifications (both self-recertification allow a party to protest a self- in the certification process.869 El Paso and application for Commission certification or self-recertification of a Electric is concerned by the proposal to recertification) that are submitted on or facility without being required to file a limit the ability to challenge QF status after the effective date of this final rule. separate petition for declaratory order once it has been certified in a We note here that it is the date of filing and to pay the associated filing fee.861 Commission certification proceeding or for certification or recertification, and Several commenters argue that the in response to a challenge unless the not the date of construction, that proposed amendment would strike the new challenger can demonstrate a determines whether our new protest right balance and distribute the burdens change in the facility circumstances that rule applies to the certification or of proof appropriately.862 Several threaten the validity of the previous recertification. commenters also state that this proposal finding. El Paso Electric states that would increase the efficiency of the sometimes QFs fail to provide utilities 549. Many commenters have argued process, reduce administrative costs, with their QF application and so the for expansive legacy treatment for and could solve potential certification utility does not know to protest.870 recertification of existing projects. They problems before they even begin.863 546. Ares notes that small power have noted that QFs need to recertify 543. Other commenters support the production QFs could be aggregated when property is transferred, PPAs NOPR proposal, but with caveats or under the more-than-one-but-less-than- expire, or even for non-substantive extra requests.864 Golden Valley 10-miles rebuttable presumption and changes, such as changes in contact recommends that the 30-day clock to not even be aware of the other small information or street address.873 challenge QF self-certification or self- power production QFs because of a lack Commenters argue that, if the new recertification begins when the QF of information.871 protest rules apply to recertifications, existing QFs could lose their QF status, serves notice to the interested electric 3. Commission Determination utility, not when the QF makes its filing even if their configuration or other with the Commission.865 NIPPC, CREA, 547. We adopt the NOPR proposal to relevant factors do not materially REC, and OSEIA state that the revise 18 CFR 292.207(a) to allow an change, when they file their Commission should provide a 60-day interested person or entity to seek to recertifications, upsetting the settled deadline after the filings are complete intervene and to file a protest of a self- expectations under which the QFs built by which time a failure of the certification or self-recertification of a their facilities. QF, and not have to file a petition for Commission to rule results in the 550. We agree that QF recertifications objection being denied by operation of declaratory order and pay the filing fee 872 to implement or address non- law.866 for petitions. We also adopt the other changes to the QF certification process substantive changes should not be 544. NorthWestern requests the QFs subject to our new protest rule; the be subject to various discovery requests proposed in the NOPR, with the additions detailed below. We find that settled expectations of the QFs should when they self-certify or self- be respected in such instances. 867 any increased administrative burden or recertify. Two commenters argue that Accordingly, we find that protests may any challenging party should be litigation risk imposed by the new rule is justified by the need to ensure that be filed to an initial certification (both required to include an affidavit from a self-certification and application for company official.868 QFs meet the statutory criteria for QF status. Commission certification) filed on or 545. NorthWestern and Northern after the effective date of this final rule, Laramie Range Alliance request that QF 548. The ability to intervene and to file a protest of a self-certification or but only to a recertification (both self- recertification and application for 860 Id. at 59. self-recertification of a QF without 861 Alaska Power Comments at 2; Alliant Energy having to file a petition for declaratory Commission recertification) that makes Comments at 22–23; APPA Comments at 31–35; order and pay the filing fee for petitions substantive changes to the existing Duke Energy Comments at 23–24; Indiana is effective as of the effective date of the certification and that are filed on or after Municipal Comments at 10; NRECA Comments at the effective date of this final rule. 21–22; Portland General Comments at 21–22; Ohio final rule. However, we will grant legacy Commission Energy Advocate Comments at 10; treatment to existing QFs under certain Substantive changes that may be subject Chamber of Commerce Comments at 8; We Stand circumstances, as we explain below. to a protest may include, for example, Comments at 3. With the exceptions noted below, a change in electrical generating 862 APPA Comments at 31–35; NRECA Comments protests pursuant to this final rule will equipment that increases power at 21–22; Ohio Commission Energy Advocate Comments at 10. not be allowed to QF certifications and production capacity by the greater of 1 863 Indiana Municipal Comments at 10; NRECA recertifications (including self- MW or 5 percent of the previously Comments at 21–22; Portland General Comments at certifications and self-recertifications) certified capacity of the QF, or a change 21–22. that are submitted before the effective in ownership in which an owner 864 DTE Electric Comments at 9–10; Golden date of the final rule, although entities increases its equity interest by at least Valley Electric Comments at 1–2, 3–7; Industrial Energy Consumers Comments at 14; Northern may still challenge by filing a petition 10% from the equity interest previously Laramie Range Alliance Comments at 3; reported. We find that recertifications NorthWestern Comments at 17–18; ELCON 869 NorthWestern Comments at 3; Northern (both self-recertifications and Comments at 19–20, 37–38. Laramie Range Alliance Comments at 3. applications for Commission 865 Golden Valley Electric Comments at 2. 870 El Paso Electric Comments at 5. recertifications) making ‘‘administrative 866 NIPPC, CREA, REC, and OSEIA Comments at 871 Ares Comments at 6. only’’ changes should not be subject to 74. 872 We amend the proposed regulation in the 867 NorthWestern Comments at 17–18. NOPR to move the sections referring to protests and 868 Industrial Energy Consumers Comments at 14; interventions from 18 CFR 292.204 to 18 CFR 873 NIPPC, CREA, REC, and OSEIA Comments at ELCON Comments at 20, 38. 292.207. 75; Terna Energy Comments at 1–2, 7.
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a protest pursuant to this final rule.874 new more-than-one-but-less-than-10- which the Commission acted on the We believe that excepting from protests miles rebuttable presumption. Only certification filing that call into question QF recertifications making non- small power production facilities the continued validity of the earlier substantive changes will allow QFs to seeking QF status that have an affiliated certification. make such changes and recertify small power production QF more than 556. Finally, even if it indeed takes without potentially losing their QF one but less than 10 miles away and that some small power production facilities status. uses the same energy resource are an additional 90 to 120 hours (and we 551. Solar Energy Industries asserts subject to the rebuttable presumption. think that unlikely), that is not an that the certification process will no Small power production facilities that unreasonable burden to impose to longer be quick, and estimates that it do not have multiple small power ensure that a generating facility that would require an additional production facilities or affiliates will not seeks to be a QF is, in fact, entitled to approximately 90 to 120 hours per year be affected by the new rebuttable QF status and complying with to comply with these new requirements. presumption. Nor will cogeneration QFs PURPA.880 Solar Energy Industries is concerned be affected by the new rebuttable 557. Turning to the requirements for that QFs may need to defend numerous presumption.878 Additionally, in a protest, as proposed in the NOPR, we self-certifications over a facility’s general as described above, protests may will require any person or entity filing lifetime, and asserts that QFs could be only be made to an initial certification a protest to specify facts that make a forced to recertify any time the (both self-certification and application prima facie demonstration that the information represented in the Form No. for Commission certification) filed on or facility described in the certification 556 changes.875 after the effective date of this final rule, (both self-certification and application 552. We do not agree with Solar and only to a recertification (self- for Commission certification) or Energy Industries’ estimates. First, we recertification or application for recertification (both self-recertification note that 18 CFR 292.207(d) (which we Commission recertification) that makes or application for Commission are not altering in this rule except to substantive changes to the existing recertification) does not satisfy the renumber as 18 CFR 292.207(f)) already certification that are filed after the requirements for QF status. We will also states that if a QF fails to conform with effective date of this final rule. require any protest to be adequately any material facts or representations 554. Third, we are also instituting supported with any supporting presented in the certification, the QF time limits on protests that may be filed documents, contracts, or affidavits, as status of the facility may no longer be under this final rule. We adopt the appropriate. Just as public utilities are relied upon,876 and hence it is long- NOPR proposal that interested parties typically not subject to discovery with standing practice that a QF must will have 30 days from the date of the regard to their rate filings under section recertify when material facts or filing of the Form No. 556 at the 205 of the FPA prior to the Commission to file a protest (without Commission’s instituting trial-type representations in the Form No. 556 879 change. paying a fee). Additionally, a evidentiary hearings,881 we similarly 553. Second, certifications and protestor must concurrently serve its decline to make QFs subject to recertifications are already subject to protest on the Form No. 556 applicant discovery requests when they self- protests, albeit in the form of petitions pursuant to 18 CFR 385.2010. certify or self-recertify. 555. Fourth, regarding Solar Energy for declaratory order, and therefore 558. The Commission also orders here Industries’ concern that a QF may have dealing with objections to a certification that an applicant’s response to a protest to engage in multiple defenses of its or recertification is not new. Although will be allowed under 18 CFR status, in addition to the above limits on the new procedures may result in more 385.213(a)(2). By this final rule, we are protests, once the Commission has protests being filed than the number of consistent with that regulation, affirmatively certified an applicant’s QF ‘‘otherwise order[ing]’’ that such petitions that have been filed, we status in response to a protest opposing believe that the conditions we impose in answers may be filed. They will be due a self-certification or self-recertification, no later than 30 days after the filing of this final rule will limit the number of or in response to an application for protests filed. The Commission the protest. Commission certification or 559. Rooftop solar developers anticipates that most, though not all, of Commission recertification, any later the protests filed pursuant to the new 18 frequently finance the initial protest to a recertification (self- development of rooftop solar CFR 292.207(a) will relate to the new recertification or application for more-than-one-but-less-than-10-miles photovoltaic (PV) systems of individual Commission recertification) making homeowners, and then retain ownership rebuttable presumption.877 Such substantive changes to a QF’s existing of such PV systems for extended periods protests will necessarily be limited certification, e.g., asserting that the of time until the ownership is because not all certifications and entity seeking QF status is at the same recertifications will be subject to the site as affiliated small power production 880 The regulations adopted in this final rule QFs more than one but less than 10 explicitly make self-certifications and self- 874 As noted elsewhere in this final rule, our miles from it, must demonstrate recertifications effective upon filing and allow them allowing protests does not eliminate the ability to to remain effective even if challenged until such file a petition for declaratory order seeking changed circumstances from the facts on time as the Commission finds that a facility does revocation of qualifying status. not qualify to be a QF. Additionally, entities 875 Solar Energy Industries at 57. 878 The 80 MW limit and same site determination seeking QF status can file self-certifications years in 876 18 CFR 292.207(d), which this final rule will only apply to small power production facilities, not advance of facility operation, such that the few renumber to 18 CFR 292.207(f). cogeneration facilities. See 16 U.S.C. 796(17)(A). months contemplated by the new process should 877 While we anticipate that most protests will 879 We note that section 292.207(c) of the PURPA not cause delay. Finally, with regard to the time it involve interested persons or entities attempting to Regulations requires the applicant to concurrently may take to fill in the Form No. 556, we note that rebut the presumption of separate sites for affiliated with its filing serve a copy of the filing on each while an entity seeking QF status may choose to small power production qualifying facilities that are applicable electric utility as well as the applicable preemptively defend against claims that it should more than one and less than 10 miles apart, we note State regulatory authority. We expect an applicant be considered to be at the same site as affiliated that protesters may also protest any fact or seeking QF status (or recertifying its status) to small power production qualifying facilities located representation in the Form No. 556, or other aspect timely comply with that regulation. Therefore, a more than one but less than 10 miles from it, this of a QF’s filing they believe is inconsistent with utility should also receive the filing at the same is optional, not required. PURPA or our PURPA Regulations. time that the filing is made at the Commission. 881 18 CFR 385.401(a).
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eventually transferred to the relevant certification as detailed above in this standby, back-up or maintenance power homeowners. While these rooftop solar section. from, and the state regulatory authority PV systems are owned by the developer, 561. We take this opportunity to of each state where the facility and each each individual rooftop solar PV system clarify that, when the Commission affected utility is located. This final rule would be considered affiliated electrical issues an order revoking QF does not change that requirement and generating equipment of every other certification, such order is subject to we expect applicants to timely comply rooftop solar PV system owned by that rehearing and appeal pursuant to the with that regulation. Should an issue developer. When there are multiple co- FPA.884 The Commission’s authority to arise, though, the Commission can owned rooftop solar PV systems within determine whether or not a facility is a address it on a case-by-case basis as the a mile, and thus at the same site, they qualifying small power production circumstances warrant. Additionally, may exceed 1 MW and therefore be facility stems from PURPA section 201, we note that, if a self-certification or required to file for certification or which amended FPA section 3 to add self-recertification is not protested recertification unless they receive a paragraph (17).885 Similarly, FPA within the 30 day-period permitted for waiver.882 Moreover, whenever they add section 3(18) grants the Commission protests, then, just as it could prior to an additional rooftop solar PV system to authority to determine whether a this final rule, a challenger still has the their portfolio, or alternatively transfer cogeneration facility meets the ability to file a petition for declaratory 886 the ownership of such a rooftop solar Commission’s requirements. Because order, with the filing fee, without being PV system to the relevant homeowner, the Commission’s authority is grounded required to show changed their facility could be viewed as no in the FPA, the Commission’s order circumstances to do so. longer conforming with the material revoking QF certification is subject to 563. Regarding Basin’s request to facts in their prior certification or rehearing and appeal pursuant to FPA allow petitions seeking de-certification 887 recertification; thus they would need to section 313. of QFs that have previously filed self- recertify. 562. El Paso Electric states that certifications and ultimately never sometimes the utility does not know to proceed to development,888 as we note 560. Due to the unique nature of protest, because sometimes QFs fail to above we limit the ability to file a rooftop solar PV developers, the provide utilities with their QF protest (rather than a petition for Commission finds the recertification application, and El Paso Electric is declaratory order, with the requirement for PV developers could be therefore concerned by the accompanying filing fee) to within 30 unduly burdensome. Therefore, to Commission’s proposal to limit protests days of the date of the filing of the self- lessen the burden on such developers by requiring that once the Commission certification or self-recertification. If an when recertifying, we will permit has affirmatively certified an applicant’s interested party would like to contest a rooftop solar PV developers an QF status, any later protest must self-certification or self-recertification alternative option to file their demonstrate changed circumstances. We later than 30 days after the date of its recertification applications. That is, note that a QF that is filing a FERC Form filing, then the interested party may file rather than be required to file for No. 556 is currently required by 18 CFR a petition for declaratory order with the recertification each time the rooftop 292.207(c) (which we are not altering in accompanying filing fee, just as they solar developer adds or removes a this rule except to renumber as 18 CFR could prior to the effective date of this rooftop facility, a rooftop solar PV 292.207(e)) to serve a copy on each final rule. developer may recertify on a quarterly electric utility with which it expects to 564. We decline to adopt the requests basis. The filing would be due within 45 interconnect, transmit or sell electric that QF developers seeking certification days after the end of the calendar energy to, or purchase supplementary, with the Commission be required to quarter. However, if in any quarter a publish notice in local newspapers in rooftop solar PV developer either has no 884 Similarly, when the Commission issues an the states in which the development changes or only has changes of power order affirmatively certifying an applicant’s QF would be located. We find that the status (in response to a protest opposing a self- production capacity of 1 MW or less, certification or self-recertification, or in response to service requirement already in our then it would not be required to an application for Commission certification or regulations cited above should serve to recertify until it has accumulated recertification), any party to that proceeding provide adequate notice to affected changes greater than 1 MW total over aggrieved by the order, including the protestant, entities. the quarters since its last filing.883 may seek rehearing and appeal pursuant to the FPA. 565. We decline to impose a 60-day 885 16 U.S.C. 796(17). Section 3(17) of the FPA Additionally, we note that rooftop solar mandates a size requirement for a small power deadline after which a failure of the PV developers, like all small power production facility: It must have ‘‘a power Commission to rule on the protest production facilities, will not be subject production capacity which, together with any other results in the protest being denied by facilities located at the same site (as determined by operation of law. Self-certification will to protests when they file the Commission), is not greater than 80 megawatts.’’ recertifications that are ‘‘administrative 886 16 U.S.C. 796(18). be effective upon filing and we adopt only’’ in nature, but would be subject to 887 16 U.S.C. 825l. The Commission has the NOPR proposal that the self- such protests when they make previously entertained rehearing of an order certifications will remain effective after substantive changes to the existing revoking QF status, Golden Valley Elec. Ass’n, Inc., a protest has been filed, until such time 167 FERC ¶ 61,208 (2019), reh’g denied, 170 FERC as the Commission issues an order ¶ 61,025 (2020), and of an order denying petitions 882 See Sunrun, Inc., 167 FERC ¶ 61,059 (2019). to revoke QF status, N. Laramie Range All., 138 revoking certification. We also clarify 883 For example, if a rooftop solar QF increases its FERC ¶ 61,171, reh’g denied, 139 FERC ¶ 61,190 that self-recertifications will likewise power production capacity by 0.9 MW in a quarter, (2012), appeal dismissed, 733 F.3d 1030. There remain effective after a protest has been it would not need to file to recertify for that quarter. have also been appeals of orders denying petitions filed, until such time as the Commission However, if in the next quarter the rooftop solar QF to revoke QF status. N. Laramie Range All. v. FERC, increased its power production capacity by 0.9 MW, 733 F.3d 1030 (10th Cir. 2013) (dismissing appeal issues an order revoking certification. it would need to recertify for that quarter because on other grounds); Brazos Elec. Power Coop. Inc., 566. We also will adopt the NOPR’s cumulatively over the quarters since its last filing v. FERC, 205 F.3d 235 (5th Cir. 2000) (denying proposed timeline for issuance of an it has changed its power production capacity by petition for review). Unlike PURPA section 210, order following protests to a QF self- more than 1 MW (i.e., under this example the PURPA section 201 amends the FPA and is rooftop solar QF changed its power production therefore subject to FPA section 313. See Portland certification and self-recertification. The capacity since its last recertification filing by 1.8 Gen. Elec. Co. v. FERC, 854 F.3d 692, 700 (2017); MW). Midland Power Coop. v. FERC, 774 F.3d 1, 3 (2014). 888 Basin Comments at 11.
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Commission will issue an order within power production facilities owned by needs to determine whether a facility 90 days of the filing of a protest. the same person or its affiliates; it is qualifies to be a QF consistent with the However, if the Commission requests unlikely that the owner(s) of one facility standards laid out in the statute. In any more information, the time period for would not be aware of other, affiliated event, we note that the Connected Entity the Commission order would be QFs. Furthermore, the presumption rulemaking was about market-based rate extended to 60 days from the filing of continues to be that a small power sellers, not QFs, and it is likely that the a complete answer to the information production facility seeking QF status Connected Entity rulemaking would not request. In addition to any extension that is located more than one but less apply to many QFs in the first place resulting from a request for information, than 10 miles from any affiliated small since they often nether seek nor have the Commission also may toll the 90- power production QFs is at a separate the authority to sell at market-based day period during which the site from those affiliated small power rates. Commission commits to act for one production QFs, and the Commission 569. Regarding Allco’s concerns about additional 60-day period. We clarify, here is simply making this presumption the RFA, we discuss the RFA issue in however, that, absent Commission rebuttable. If an entity challenges that section VII. action by the date of the expiration of presumption, the applicant seeking QF the tolling period, a protest will be status would necessarily be served with F. Corresponding Changes to the FERC deemed denied, and the self- the protest 889 and thus informed of the Form No. 556 certification or self-recertification will challenge, and given the opportunity to 1. NOPR Proposal remain effective. We find that this defend against the challenge. timeline provides both QFs and other 568. Regarding Solar Energy 570. The Commission proposed interested persons with certainty about Industries contention regarding the changes to the FERC Form No. 556, the QFs’ status within a reasonable currently pending Connected Entity corresponding to the new rules amount of time. proceeding, that is a separate discussed above regarding whether QFs 567. Regarding Ares’ concern that proceeding and beyond the scope of this are at separate sites. Currently, item 8a small power production QFs could be proceeding. Moreover, the data of FERC Form No. 556 requires that the aggregated under the new rule without collection at issue in that proceeding applicant identify any facilities with being aware of the other small power does not eliminate the need for the electrical generating equipment within production QFs with which they are Commission to collect the data required one mile of the instant facility’s aggregated, the Commission notes that by the FERC Form No. 556 so that the electrical generating equipment, as this concern would only apply to small Commission has the information it shown below:
571. The Commission proposed choose, explain (in the Miscellaneous should be revised and item 8b (as adding a new item 8b,890 which would section starting on page 19 of the form) proposed) written to require that the be similar to the current item 8a, except why the facilities identified under item applicant specify the distance from the that it would cover affiliated facilities 8b should be considered separate instant facility to each affiliated facility whose nearest electrical generating facilities,891 considering the relevant listed. We also sought comment on equipment is greater than 1 mile and physical and ownership factors. The whether items 8a and (new) 8b should less than 10 miles from the electrical Commission further proposed to require the applicant to document (in generating equipment of the instant provide reference, in the instructions to the Miscellaneous section on page 19 of facility. the new item 8b, to the paragraphs of the FERC Form No. 556) how the 572. The Commission proposed that this final rule which discuss the distances reported were calculated. the instructions for the new item 8b relevant physical and ownership factors Specifically, we sought comment on would also allow applicants with that may be asserted to defend against whether the applicant should be facilities identified under item 8b (i.e., rebuttal. required to identify the particular facilities more than one mile apart and 573. The Commission sought electrical generating equipment and less than 10 miles apart) to, if they comment on whether item 8a (existing) associated geographic coordinates used
889 18 CFR 385.211(b). 890 Subsequent items in that section of the FERC 891 As discussed in detail in section IV.D.1.d, this Form No. 556 would be retained but re-numbered final rule will change the references to ‘‘separate and moved down accordingly. facilities’’ or ‘‘the same facility’’ to ‘‘at separate sites’’ or ‘‘at the same site.’’
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in calculating the distance(s) between Commission would outweigh the will be needed to identify QFs not the facilities. limited burden. complying with the proposed rule.900 574. The Commission noted that item 582. Solar Energy Industries assert 2. Comments that the proposed item 8b to the Form 8a currently requires applicants to list No. 556, requiring a listing of all all affiliated ‘‘facilities.’’ Under this 577. A few commenters oppose the affiliated facilities whose nearest requirement, an applicant would have changes to FERC Form No. 556 as electrical generating equipment is proposed in the NOPR.893 Solar Energy to list all affiliated QFs as well as greater than one mile and less than 10 Industries and the Southeast Public affiliated non-QFs. We requested miles from the electrical generating Interest Organizations contend that the comment on whether such a equipment of the certifying QF, is a proposed new item 8b that requests a requirement is more burdensome than substantial expansion of the information list of all affiliated facilities within one necessary. It was not clear that requiring collection requirements and goes against the listing of affiliated non-QFs is to 10 miles from the certifying QF the Commission’s previously-granted necessary in monitoring for compliance would be a significant increase in blanket exemptions for QFs to relieve with the relevant QF regulations, which information collection, time, effort, and the burden of public utility regulation. 894 are concerned only with the distance cost of QF certification. Solar Energy Industries argue that this is between affiliated QFs. 578. The Southeast Public Interest not a mere information collection 575. The Commission also sought Organizations further object that the requirement, but a request for comment on whether item 3c obligation to show how distances are information that is not otherwise (geographic coordinates) and the calculated and to identify electrical publicly available and is inconsistent Geographic Coordinates instructions on generating equipment and their with the Commission’s finding on the page 4 of the current FERC Form No. associated geographic coordinates are burden of collecting Connected Entity 556 should be modified such that overly burdensome for facilities that are information. Solar Energy Industries reporting of geographic coordinates presumed to be separate and contradicts argue that collecting such information should be required for all applications, the rebuttable presumption of separate from QFs is unwarranted discriminatory rather than only for applications where facilities, which usually places the treatment and is arbitrary and 901 there is no facility street address (as has burden on the challenger.895 capricious. 583. A few commenters requested been the case). We believed such 579. The Southeast Public Interest additional changes to FERC Form No. information may provide more Organizations also assert it would be 556.902 North American-Central would transparency in measuring distances reasonable to ask for only affiliated QFs like the Commission to create separate between facilities, and that such and to exclude non-QF affiliates from Form No. 556 forms for small power transparency may be useful for both the the questions in item 8.896 producers and cogeneration QFs for a public and Commission staff in 580. Several commenters support more distinct and simplified application monitoring compliance with the changes to FERC Form No. 556 as process.903 EEI would like Form No. 556 Commission’s QF regulations. proposed in the NOPR.897 A few to explicitly include battery storage.904 576. The Commission noted, as it did commenters support the proposed EEI requests that the Form No. 556 in Order No. 732,892 and as in the changes to item 8a and proposed new collect information on the rated capacity general form instructions on page 4 of item 8b and argue that the additional and notes that net capacity may not be the FERC Form No. 556, that such information might be otherwise difficult the appropriate measure of power coordinates can be obtained through to find and will be useful to clarify if the production. Solar Energy Industries also certain free online map services (with assumption of separate facilities is noted that the Commission stated in links and instructions available through appropriate.898 Some commenters Order No. 732 that future changes to the Commission’s QF website); GPS support requiring all applicants to Form No. 556 would not go through a devices (including smartphones, which supply geographic coordinates in item rulemaking and would instead be are now nearly ubiquitous); Google 3c, regardless of whether they have a reviewed by the Office of Management Earth; property surveys; various street address.899 and Budget with a period for public engineering or construction drawings; 581. Two commenters support the comments.905 property deeds; or municipal or county collection of information for all 3. Commission Determination maps showing property lines. The affiliated facilities, not just QF affiliates, Commission also noted that the within the one or ten-mile radius 584. We adopt the NOPR proposals Commission has a link on its QF web requested in item 8a and proposed item regarding changes to the FERC Form No. page (https://www.ferc.gov/industries- 8b, respectively, because they believe it 556, with the further clarifications and data/electric/power-sales-and-markets/ additions described below. The revised Form No. 556 will be attached to this purpa-qualifying-facilities) which 893 Solar Energy Industries Comments at 8; provides assistance with determining Southeast Public Interest Organizations Comments rule in eLibrary, but will not be geographic coordinates of facilities. As at 36–37. published in the Federal Register or such, the Commission believed that the 894 Solar Energy Industries Comments at 56; Code of Federal Regulations. The Southeast Public Interest Organizations Comments burden that would be created by Commission finds that the added at 36–37. information collected by these changes requiring every QF to provide 895 Southeast Public Interest Organizations geographic coordinates would be Comments at 37–38. 900 limited. Even so, the Commission 896 Id. EEI Comments at 50–51; Portland General Comments at 18. sought comment on whether the value 897 APPA Comments at 23; EEI Comments at 50; Portland General Comments at 17–18; Subsurface 901 Solar Energy Industries Comments at 56–57. of the information to the public and the Engineering Association Comments at 1. 902 EEI Comments at 51; El Paso Electric 898 APPA Comments at 23–24; EEI Comments at Comments at 5–6; North American-Central 892 Revisions to Form, Procedures, and Criteria for 50. Comments at 7. Certification of Qualifying Facility Status for a 899 EEI Comments at 50; Idaho Commission 903 North American-Central Comments at 7. Small Power Production or Cogeneration Facility, Comments at 7; Subsurface Engineering Association 904 EEI Comments at 51–52. Order No. 732, 130 FERC ¶ 61,214, at P 100 (2010). Comments at 1. 905 Solar Energy Industries Comments at 56.
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is necessary to implement the changes than a mile or more than 10 miles from the applicant only list affiliated small made to the regulations in this final affiliated small power production QFs power production QFs using the same rule, and thus justifies the increase in that use the same energy resource; 9.5 energy resource within one mile. reporting burden. hours for self-certifications of small 591. We modify the NOPR’s proposal 585. The currently effective Form No. power producers over 1 MW with to add the collection of information for 556 contains a ‘‘Who Must File’’ section affiliated small power production QFs affiliated facilities whose nearest which specifies when an applicant more than one but less than 10 miles electrical generating equipment is more seeking QF status or recertification of that use the same energy resource; 62 than one but less than 10 miles from the QF status must file a self-certification, hours for an application for Commission electrical generating equipment of the and when such applicant is exempt certification of a small power applicant’s facility to instead add the from the filing requirement. We will production facility over 1 MW with collection of information for affiliated revise the ‘‘Who Must File’’ section to affiliated small power production QFs small power production QFs using the clarify that the exemption from the more than one but less than 10 miles same energy resource located more than requirement to complete or file a Form that use the same energy resource. one mile but less than 10 miles from the No. 556 applies to an applicant seeking 588. We find that an explanatory electrical generating equipment of the QF status for a small power production ‘‘Protest to the Filing’’ section should be applicant’s facility. However, rather facility that, together with any affiliated added to the FERC Form No. 556 to note than adding a separate item 8b to the small power production QFs within one that, pursuant to 18 CFR 292.207, an Form No. 556 specifically for such QFs, mile of the entity seeking small power interested person or entity has 30 days as proposed in the NOPR, we are production QF status, has a net power from the date of the filing of the FERC expanding the existing item 8a to production capacity of 1 MW or less. Form No. 556 to intervene or file a require the applicant to list all affiliated While we did not seek comment on this protest. The ‘‘Protest to the Filing’’ small power production QFs using the corrective change in the NOPR, this section will state that the protestor must same energy resource whose nearest change is consistent with the concurrently serve a copy of such filing, electrical generating equipment is less Commission’s determination in SunE B9 pursuant to 18 CFR 385.211(b), on the than 10 miles from the electrical Holdings LLC, 906 and serves to make Form No. 556 applicant. The ‘‘Protest to generating equipment of the entity the Form No. 556 more transparent in the Filing’’ section will also state that seeking small power production QF its application. the Form No. 556 applicant will have 30 status. 586. We also revise the ‘‘Who Must days to file any answer to a protest. The 592. We determine that the revised File’’ section to include a ‘‘Protest to the Filing’’ section will also item 8a will require the applicant to list ‘‘Recertification’’ section which state that protests may be made to any the geographic coordinates of the provides the text of revised 18 CFR initial certification, and any nearest ‘‘electrical generating 292.207(f), (previously 18 CFR recertifications on or after the effective equipment’’ of both its own facility and 292.207(d)) which states that a QF must date of this final rule making the affiliated small power production file for recertification whenever the QF substantive changes to the existing QF in question based on the definitions ‘‘fails to conform with any material facts certification, which may include, for adopted in this final rule. The distance or representation presented . . . in its example, a change in electrical between the entity seeking small power submittals to the Commission.’’ 907 generating equipment that increases production QF status and each affiliated This addition does not alter our power production capacity by the small power production QF will be recertification requirements, and we greater of 1 MW or 10 percent of the automatically calculated based on these include it here simply to make the Form previously certified capacity of the QF, coordinates. For any affiliated small No. 556 clearer in its application. or a change in ownership in which an power production QFs that cannot be 587. The total burden estimates in the owner increases their equity interest by described in item 8a due to space ‘‘Paperwork Reduction Act Notice’’ at least 10% from the equity interest limitations, the instructions will direct section of FERC Form No. 556 will be previously reported. The ‘‘Protest to the applicants to provide the required updated based on the changes in this Filing’’ section will note that information for such small power final rule, to provide the following ‘‘administrative only’’ changes will not production QFs in the Miscellaneous estimates: 1.5 hours for self- be subject to protests. section of the form. To facilitate the certifications of facilities of 1 MW or 589. The Commission finds that item uniform calculation of distances for less; 1.5 hours for self-certifications of a 3c (geographic coordinates) and the facility data that are entered into the cogeneration facility over 1 MW; 50 Geographic Coordinates instructions on Miscellaneous section of the form, a hours for applications for Commission page 4 of the current FERC Form No. distance calculator will be added to the certification of a cogeneration facility; 556 will be revised to require all form, and the form instructions will 3.5 hours for self-certifications of small applicants to report the applicant direct applicants to use the calculator to power producers over 1 MW and less facility’s geographic coordinates, rather convert their facilities’ geographic than a mile or more than 10 miles from than only for applications where there coordinates into distance. affiliated small power production QFs is no street address (as was the case 593. The Commission also adopts the that use the same energy resource; 56 previously). We find that such NOPR proposal to allow applicants with hours for an application for Commission information will provide more affiliated small power production QFs certification of a small power transparency regarding the location of greater than one mile and less than 10 production facility over 1 MW and less each site, and that such transparency miles from the electrical generating may be useful for both the public and equipment of the entity seeking small 906 157 FERC ¶ 61,044 at P 16 (‘‘the one-mile rule Commission staff in monitoring power production QF status identified of section 292.204(a)(2) is a size determination compliance with the Commission’s QF under item 8a to, if they choose, explain which the Commission has consistently applied regulations. why the affiliated small power generally to the regulations pursuant to PURPA, 590. The Commission will change production QFs greater than one mile and which applies here to determining the applicability of the less-than-1–MW exemption of item 8a, which currently requires and less than 10 miles from the nearest section 292.203(d)’’) (internal citations omitted). applicants to list all affiliated facilities electrical generating equipment of the 907 18 CFR 292.207(d). within one mile, to instead require that entity seeking QF status identified
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under item 8a should be considered to presumption of nondiscriminatory capacity is up to and including 5 MW be at separate sites from the entity access to a market attaches for small (up from the previous 2 MW seeking QF status, considering the power production facilities, but not threshold),911 and had required each relevant physical and ownership factors. cogeneration facilities, from 20 MW to RTO/ISO to revise its tariff to include a The instructions will provide references 1 MW. participation model for electric storage to the relevant physical and ownership 598. The Commission determined resources that establishes a minimum factors, as defined in this final rule, that that, in light of the maturation of size requirement for participation in the may be asserted to defend against organized electric markets, such a RTO/ISO markets that does not exceed rebuttal. reduction was consistent with 100 kW.912 While both of these changes 594. Regarding Solar Energy Congress’s intent to relieve electric do not apply only to generation types Industries’ concern regarding the utilities of their obligation to purchase that could become QFs or only to RTOs/ expansion of the information collection when a QF has nondiscriminatory ISOs, the Commission stated that it requirements, we find that the added access to competitive markets. believed they generally show that small information collected by item 8a of the 599. The Commission noted that, in power production facilities below 20 Form No. 556 is necessary to implement establishing the original presumption MW, specifically those whose capacity the changes made to the regulations in that QFs whose net power production exceeds 1 MW, now have greater access this final rule, and thus justifies the capacity was 20 MW or below lacked to the markets defined in section increase in reporting burden. As noted nondiscriminatory access to markets 210(m)(1) of PURPA than they did when in section IV.E, the currently pending defined in sections 210(m)(1)(A)–(C) of the Commission first established the Connected Entity proceeding is a PURPA, it had acknowledged that presumptions of market access. The separate proceeding and beyond the ‘‘there is no unique and distinct Commission also stated that, under the scope of this proceeding. Moreover, the megawatt size that uniquely determines NOPR proposal and like QFs over 20 data collection at issue in that if a generator is small.’’ 909 The MW today, small power production proceeding does not eliminate the need Commission noted that, in using 20 MW facilities over 1 MW would still be able for the Commission to collect the data to separate the presumption that large to rebut the presumption of access due required by the FERC Form No. 556 so QFs had nondiscriminatory access and to operational characteristics or that the Commission has the small QFs lacked such access, the transmission constraints.913 information it needs to determine Commission had recognized: (1) Order 601. The Commission did not propose whether a facility qualifies to be a QF No. 671’s exemption for QFs that are 20 to make the same reduction applicable consistent with the standards laid out in MW or smaller from sections 205 and to cogeneration facilities. The the statute. 206 of the FPA; and (2) Order Nos. 2006 Commission stated that, unlike small 595. We note that these changes and and 2006–A’s setting 20 MW as the power production facilities, which are any future changes to Form No. 556 will demarcation for different constructed solely to produce and sell continue to be reviewed by the Office of interconnection standards between electricity, cogeneration facilities Management and Budget following small and large generators.910 The seeking QF certification after February solicitation of comments from the NOPR stated that, while the 2, 2006 are statutorily required to show public, as described in Order No. Commission had not (and likewise did that they are intended primarily to 732.908 not in the NOPR) propose to revise the provide heat for an industrial, 596. We find the requests for exemptions for QFs from sections 205 commercial, residential or institutional additional changes to FERC Form No. and 206 of the FPA, the Commission process rather than fundamentally for 556 beyond the scope of this had elsewhere taken steps to ease both sale to an electric utility.914 proceeding. interconnection and market access for Consequently, the production and sale generation resources with small of electricity is a byproduct of these G. PURPA Section 210(m) Rebuttable capacities since it first implemented thermal processes, and owners of Presumption of Nondiscriminatory section 210(m) of PURPA. cogeneration facilities might not be as Access to Markets 600. For example, the Commission familiar with energy markets and the 1. PURPA Section 210(m) noted that it had required public technical requirements for such sales. Implementation utilities to provide a Fast-Track The Commission stated that retention of interconnection process for some the existing 20 MW level for the a. NOPR Proposal interconnection customers whose presumption of access to markets 597. In 2006, when Order No. 688 was therefore would be appropriate for issued, the organized electric markets 909 Order No. 688–A, 119 FERC ¶ 61,305 at P 97. cogeneration facilities. had been in existence for only a few 910 See Order No. 688, 117 FERC ¶ 61,078 at P 76, years and were not well understood by order on reh’g, Order No. 688–A, 119 FERC ¶ 61,305 b. Comments in Opposition at P 97; see also 18 CFR 292.601(c)(1) (‘‘[S]ales of all market participants. Now, fourteen energy or capacity made by qualifying facilities 20 602. Numerous commenters oppose years later, the markets are more mature, MW or smaller, or made pursuant to a contract the NOPR proposal to revise 18 CFR and the mechanics of participation in executed on or before March 17, 2006 or made 292.309(d) to reduce the net power such markets are improved and better pursuant to a state regulatory authority’s production capacity level at which the implementation of section 210 the Public Utility presumption of nondiscriminatory understood. Consequently, in the NOPR, Regulatory Policies Act of 1978, 16 U.S.C. 824a–1, the Commission determined that small shall be exempt from scrutiny under sections 205 power production facilities below 20 and 206.’’); Revised Regulations Governing Small 911 Small Generator Interconnection Agreements MW should now be able to participate Power Production and Cogeneration Facilities, and Procedures, Order No. 792, 145 FERC ¶ 61,159, Order No. 671, 114 FERC ¶ 61,102, at P 98, order at P 103 (2013), clarifying, Order No. 792–A, 146 in such markets under most on reh’g, Order No. 671–A, 115 FERC ¶ 61,225 FERC ¶ 61,214 (2014). circumstances. The Commission (2006) (establishing exemption for QFs 20 MW or 912 Order No. 841, 162 FERC ¶ 61,127 at P 265. therefore proposed to revise 18 CFR below from 205 and 206 of FPA); Standardization 913 See 18 CFR 292.309(c), (e), (f). 292.309(d) to reduce the net power of Small Generator Interconnection Agreements and 914 See 16 U.S.C. 824a–3(n); 18 CFR 292.205(d)(3). Procedures, Order No. 2006, 111 FERC ¶ 61,220, at We recognize that cogeneration facilities seeking production capacity level at which the P 75, order on reh’g, Order No. 2006–A, 113 FERC certification 5 MW or smaller after February 2, 2006 ¶ 61,195 (2005), order granting clarification, Order are presumed to satisfy this requirement. 18 CFR 908 Order No. 732, 130 FERC ¶ 61,214. No. 2006–B, 116 FERC ¶ 61,046 (2006). 292.205(d)(4).
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access to a market attaches for small 606. Several commenters state that, in assert that proper implementation of power production facilities, but not Order No. 688–A, the Commission, section 210(m) requires that exemption cogeneration facilities, from 20 MW to rejected utility proposals to set the from the mandatory purchase obligation 1 MW.915 threshold at 1 MW, and confirmed that only applies where QF development 20 MW was an appropriate threshold.920 will be stimulated by market forces; i. Insufficient Evidentiary Support Advanced Energy Economy states that otherwise Congress intended QF 603. Several commenters argue that the Commission’s explanation in Order development to continue to be the record does not support the No. 688–A, which stated that the encouraged by the mandatory purchase proposal.916 rebuttable presumptions were based on obligation.926 Protesters assert that the 604. Advanced Energy Economy the Commission’s experience of record does not provide evidence that asserts that, when an agency reverses implementing non-discriminatory open could reasonably allow the Commission course on a policy issue, and the ‘‘new access transmission over the past 11 to conclude that small QF development policy rests upon factual findings that years, dealing with QF issues over the will be stimulated by market forces. On contradict those which underlay’’ the past 29 years and its experience with the contrary, the Public Interest previous policy, then the agency must RTO/ISO markets for almost 10 years, Organizations assert that the ‘‘provide a more detailed justification contradicts the Commission’s Commission’s proposal placing the than what would suffice for new policy justification in the NOPR of limited burden on small QFs to rebut the created on a blank slate.’’ 917 Advanced experience with organized electric presumption of access is itself a barrier Energy Economy argues that the NOPR markets.921 Advanced Energy Economy to QF development.927 falls short of that standard.918 and Southeast Public Interest 609. Solar Energy Industries argue 605. Public Interest Organizations and Organizations assert that, since Order that, along with the energy markets, the NIPPC, CREA, REC and OSEI argue that No. 688, the Commission has repeatedly capacity markets in the RTO/ISO the Commission fails to cite any found that utilities in organized markets regions have not evolved to provide a evidence supporting the premise that have failed to rebut the presumption of meaningful opportunity for any QF to the markets are more mature, and that nondiscriminatory access to QFs, sell long-term capacity.928 Solar Energy the mechanics of participation in such instead finding that QFs 20 MW and Industries argue that PURPA section markets are improved and better under do not have sufficient access.922 210(m) requires the Commission to find understood. Public Interest 607. Public Interest Organizations and that a QF has nondiscriminatory access Organizations and NIPPC, CREA, REC, NIPPC, CREA, REC, and OSEIA argue to a market for long-term sales of and OSEIA state that the Commission that the Commission fails to explain the capacity prior to relieving the purchase asserts that QFs smaller than 20 MW relevance of its Fast-Track obligation. Solar Energy Industries can now participate in markets on a interconnection process or energy provide several examples such as nondiscriminatory basis ‘‘under most storage order or which barriers these MISO’s Planning Resources Auction circumstances,’’ but that the developments alleviate for small QFs’ that only provides a one-year purchase 923 Commission does not explain what access to markets. Advanced Energy agreement, PJM not purchasing capacity those ‘‘circumstances’’ are, or whether Economy asserts that the expansion of since the Commission’s July 2019 Order, they apply as a general matter to most the Fast-Track procedures only applied and that SPP does not have a centralized small QFs.919 to a narrow slice of inverter-based capacity market. Solar Energy Industries resources under 20 MW and is argue that without a specific finding 915 Allco Comments at 2, 17–19; Advanced insufficient to support a rebuttable that RTO/ISO markets provide QFs with Energy Economy Comments at 1–12; AllEarth presumption that all QFs under 20 MW an opportunity to sell long-term Comments at 2; Biogas Comments at 2–3; Biological have nondiscriminatory access.924 capacity, the Commission is statutorily Diversity Comments at 8–9; California Commission 608. Solar Energy Industries and New required to maintain utilities’ obligation Comments at 31–33; CARE Comments at 5–6; Con Edison Comments at 5; Covanta Comments at 10– England Hydro argue that, just because to purchase output from QFs 20 MWs or 12; DC Commission Comments at 4–5; Distributed some small QFs participate in energy less.929 Sun Comments at 2–3; ELCON Comments at 18, 31– markets, that is not sufficient 610. Mr. Mattson asserts, without 35; Energy Recovery Comments at 4–5; ENGIE justification to find that all small QFs elaboration, that FPA sections 205 and Comments at 3–4; Commissioner Slaughter meet the statutory standard required for 206 disallow the Commission from Comments at 2, 4; Green Power Comments at 3; Industrial Energy Consumers Comments at 6–10; granting waiver for all QFs 20 MW or lowering the nondiscriminatory access Massachusetts AG Comments at 6–8; Michigan less.925 Public Interest Organizations threshold from 20 MW to 1 MW, and, Commission Comments at 6–7; North American- therefore, claims it would amount to a Central at 2–4; One Energy Comments at 2; South 920 Advanced Energy Economy Comments at 5–6; violation of state-jurisdictional rights Dakota Commission Comments at 5; Solar Energy ELCON Comments at 31–32. 930 Industries Comments at 44–51; State Entities and a taking of property. 921 Advanced Energy Economy Comments at 8–9. Comments at 5–6; Western Resource Councils 922 Comments at 1–144. Id. (citing, e.g., PPL Elec. Utils Corp., 145 ii. Administrative Burden and Complex 916 FERC ¶ 61,053, at P 24 (2013); City of Burlington, Market Rules AllEarth Comments at 2; Advanced Energy 145 FERC ¶ 61,121, at P 36 (2013); Fitchburg Gas Economy Comments at 5–9; Biological Diversity and Elec. Light Co., 146 FERC ¶ 61,186, at PP 32– 611. The DC Commission state that Comments at 9; ELCON Comments at 31–32; 33 (2014); Va. Elec. & Power Co., 151 FERC QFs 20 MW or less lack the capability Industrial Energy Consumers Comments at 8; New ¶ 61,038, at P 21 (2015); N. States Power Co., 151 England Hydropower Comments at 11–12; NIPPC, FERC ¶ 61,110 (2015)); Southeast Public Interest 926 CREA, REC, and OSEIA Comments at 77; Public Organizations Comments at 39–40. Public Interest Organizations Comments at 76 Interest Organizations Comments at 76–78; SC Solar 923 NIPPC, CREA, REC, and OSEIA at 77; Public (citing New PURPA Section 210(m) Regulations Alliance Comments at 12; Solar Energy Industries Interest Organizations Comments at 78 (citing Motor Applicable to Small Power Production and Comments at 45–48; Southeast Public Interest Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Cogeneration Facilities, Order No. 688, 117 FERC Organization Comments at 39–40. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining ¶ 61,078, at P 6 (2006), order on reh’g, Order No. 917 Advanced Energy Economy Comments at 6 that an agency’s failure to consider the relevant 688–A, 119 FERC ¶ 61,305 (2007), aff’d sub nom. (citing FCC v. Fox Television Stations, Inc., 556 U.S. factors and supply a ‘‘rational connection between Am. Forest and Paper Ass’n v. FERC, 550 F.3d at 515). the facts found and the choice made’’ renders its 1179). 918 Id. at 7. decision arbitrary and capricious)). 927 Id. 919 Public Interest Organizations Comments at 78; 924 Advanced Energy Comments at 7–8. 928 Solar Energy Industries Comments at 45. NIPPC, CREA, REC, and OSEIA Comments at 77 925 Solar Energy Industries Comments at 46; New 929 Id. at 49. (citing NOPR, 168 FERC ¶ 61,184 at P 126). England Hydro Comments at 11–12. 930 Mr. Mattson Comments at 10.
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to participate in a complicated electric utilities should no longer be which the presumption of wholesale market such as PJM where required to purchase electric energy nondiscriminatory access attaches to 0 there is a need to understand from them.936 EEI supports the proposal MW because the markets are more membership obligations and rules in because resource diversity has improved mature, the mechanics of participating order to appropriately execute and markets have evolved as smaller in the markets are improved and the law transactions.931 resources, including QFs, are requires nondiscriminatory access to the 612. Allco argues that, in retail choice increasingly participating in the RTO/ markets for all resources.942 Missouri states, PURPA is the only way small ISO markets. RTOs/ISOs have also River Energy recommends lowering the QFs can sell to utilities. Allco asserts increasingly adjusted their bidding threshold to 500 kW.943 FirstEnergy that in retail choice states there is a rules, forecasts, and operations to better recommends the Commission treat both shifting retail customer base, therefore accommodate variable resources.937 small power production resources and utilities want obligations reduced and Alliant and the Ohio Commission cogeneration resources consistently by contracts limited to a year. Allco asserts Energy Advocate state that small lowering the rebuttable presumption that utilities and state commissions resources have increased access to threshold from 20 MW to 1 MW for all cannot limit contracts due to a wholesale markets and that RTO/ISO QFs.944 Indiana Municipal requests that potentially disappearing customer base rule flexibility allows for the non- the Commission automatically apply the and then argue that a sufficient discriminatory participation of very 1 MW threshold to utilities that have wholesale market exists for long-term small resources and the aggregation of already been granted waiver for QFs sales of electric energy and capacity to even smaller resources in the markets, over 20 MW to promote the efficient use support nondiscriminatory access for therefore the 20 MW threshold is no of the Commission’s resources and small QFs under 20 MW.932 longer appropriate.938 savings to utilities.945 613. Public Interest Organizations 615. Consumer Alliance and EEI argue 619. The Michigan Commission argue that giving special exemptions to that reducing the threshold will reduce requests clarification on the NOPR cogeneration facilities is discriminatory costs to customers because currently proposal specifically regarding: (1) How against small power producer QFs.933 some QFs with access to markets are existing contracts with QFs greater than Two commenters also assert that small foregoing the opportunity to participate 1 MW but below 20 MWs are to be QFs are at an inherent disadvantage in those markets and electing to contract treated under the NOPR, and if they compared to larger QFs because smaller with electric utilities under state- would be subject to early termination or QFs are often engaged in other business implemented PURPA programs, which would be granted legacy treatment enterprises, such as governmental units EEI argues compensate QFs at an above- indefinitely or until the end of the distributing irrigation water or local market rate.939 existing contract term; (2) whether companies unfamiliar with energy 616. The Ohio Commission Energy utilities that have already received relief markets.934 Advocate argues that the rebuttable from the mandatory purchase obligation presumption process for QFs provides from the Commission for operating c. Comments in Support an appropriate safety valve for the lower within the footprint of an organized 614. Numerous commenters support threshold.940 wholesale electricity market automatically qualify for relief under the proposal to revise 18 CFR 292.309(d) d. Comments Requesting Modifications/ the 1 MW threshold; and (3) how for small power production facilities but Clarifications not cogeneration facilities, to reduce the interconnection requirements would be 617. Institute for Energy Research net power production capacity level at considered for QFs between 1 MW and requests that the Commission expand which the presumption of 20 MWs—specifically whether these the rebuttable presumption of non- nondiscriminatory access to a market projects would need to interconnect at discriminatory access to QFs 1 MW and applies from 20 MW to 1 MW.935 DTE transmission level voltages to be below if the market structure in a given Electric argues that RTO/ISOs can now considered as having access to the state is appropriate. Institute for Energy 946 provide smaller resources non- wholesale electricity market. The Research gives the example of Texas’s discriminatory access, and therefore Michigan Commission notes that there open market model, where generation is is some tension between the proposal 931 DC Commission Comments at 4–5. open to all comers of all sizes. Institute and the market rules for MISO and 947 932 Allco Comments at 18. for Energy Research also suggests that PJM. 933 Public Interest Organizations Comments at 74. the Commission should include some 620. Several commenters request that 934 NIPPC, CREA, REC, and OSEIA Comments at threshold now such that when other the Commission expand the exemption 18–19, 24–25; Mr. Mattson Comments at 15. states achieve similar open access for cogeneration to small power QFs 935 Alliant Energy Comments at 13–16; Tax market designs QFs 1 MW and below whose primary purpose is to self-supply Reform Comments at 2; APPA Comments at 24–26; but still rely on PURPA when making Arizona Public Service Comments at 8–10; Basin could be rebuttably presumed to have Comments at 12–13; Freedom Center Comments at non-discriminatory access to those occasional sales to the interconnected 2; Colorado Independent Energy Comments at 14; markets, without the need to undertake, utility when QF output exceeds on-site Connecticut Commission Comments at 21–22; at that time, a separate rulemaking on consumption.948 Industrial Energy Conservative Action Comments at 2; Consumers 941 Alliance Comments at 1–2; Consumers Energy QFs 1 MW and below. 942 Connecticut Commission Comments at 21–23. Comments at 4–5; DTE Electric Comments at 4–5; 618. The Connecticut Commission 943 East Kentucky Comments at 3; East River Comments suggests reducing the threshold at Missouri River Energy Comments at 3. at 2; EEI Comments 54–59; FirstEnergy Comments 944 FirstEnergy Comments at 2–3. 945 Indiana Municipal Comments at 8–9. at 2–3; Idaho Power comments at 14; Indiana 936 DTE Electric Comments at 5–6. Municipal Comments at 6–9; Institute for Energy 946 Michigan Commission Comments at 6–7 937 EEI Comments at 56–58. Research Comments at 2; Kentucky Commission 947 938 Id. at 7 (commenting that MISO, for example, Comments at 8; Missouri River Energy Comments Alliant Energy Comments at 13–14; Ohio utilizes a 5 MW threshold as the cut off point for at 3–4; NorthWestern at 14; TAPS Comments at 4; Commission Energy Advocate Comments at 7–8. Network Modeling purposes and that resources less Ohio Commission Energy Advocate Comments at 8; 939 EEI Comments at 58–59; Consumers Alliance than 5 MW are modeled on a case-by-case basis Taxpayers Protection Alliance Comments at 2; Comments at 1–2. only). Chamber of Commerce Comments at 7; We Stand 940 Ohio Commission Energy Advocate Comments 948 ELCON Comments at 32–33; Industrial Energy Comments at 1–144; Taxpayer Protection Alliance at 8. Consumers Comments at 6–8; Chamber of Comments at 2; TAPS Comments at 4. 941 Institute of Energy Research Comments at 2. Commerce Comments at 7.
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Consumers suggest that small power exemption should be retained for these this final rule we lower the rebuttable producers seeking a 20 MW self-supply resources.955 presumption from 20 MW to 5 MW, exemption meet the ‘‘fundamental use 623. Ohio Consumers Counsel states rather than from 20 MW to 1 MW as test’’ which currently applies to that lowering the rebuttable proposed in the NOPR. Under the final cogeneration facilities.949 Other presumption could permit electric rule, small power production facilities commenters assert that behind-the- utilities and state policies to deny QFs with a net power production capacity at meter distributed energy resources,950 and distributed energy resources under or below 5 MW will be presumed not to Waste to Energy resources,951 and 20 MW from having unrestricted and have nondiscriminatory access to baseload renewables 952 are similar to nondiscriminatory access to wholesale markets, and, conversely, small power cogeneration facilities and should be markets. For example, Ohio Consumers production facilities with a net power Counsel states that the NOPR would included in the exemption. production capacity over 5 MW will be permit electric distribution utilities to presumed to have nondiscriminatory 621. Public Interest Organizations limit the availability of after-the-meter access to markets. request that the Commission clarify that generation and storage from PJM’s 626. A number of commenters oppose utilities are required to petition to markets, such as through restrictive net the reduction below 20 MW, arguing the eliminate the must-purchase obligation metering requirements, unreasonably lack of a record to support the proposal. for small QFs, even for those utilities low compensation for distributed energy We disagree. In Order Nos. 688 and that have previously made such a resources, or other state regulatory and 688–A, the Commission determined that showing for QFs larger than 20 MW.953 policy restrictions. Ohio Consumers small QFs may not have NRECA, concerned over a potential Counsel urges the Commission to nondiscriminatory access to wholesale change in aggregation for distributed require that investor-owned electric markets and, therefore, it was energy resources in RTOs/ISOs, requests distribution utilities demonstrate that reasonable to establish a presumption that the Commission clarify that the they have not restricted market access to for small QFs. At that time, the presumption will only apply to those QFs and distributed energy resources Commission found that it was facilities having sufficient transmission rated between 1 MW and 20 MW.956 ‘‘reasonable and administratively 954 workable’’ to define ‘‘small’’ for access to the RTO/ISO markets. e. Commission Determination purposes of this regulation to be QFs 622. Hydropower Association asserts 624. We agree with commenters that, below 20 MW.959 We also note that a that, despite their potential, hydropower in Order Nos. 688 and 688–A, given number of commenters, including state resources do not receive the same tax conditions at the time, the Commission entities which are charged with treatment and eligibility for state RPSs established the rebuttable presumption applying PURPA in their and therefore have not enjoyed the same at QFs 20 MW or less. Furthermore, as jurisdictions,960 supported a reduction growth rate as other renewable energy commenters noted in reviewing several in the 20 MW threshold. small power producers. Hydropower individual cases in 2013–2015, the 627. The Commission acknowledged Association urges the Commission to Commission continued to find that that there is no unique number to draw retain the 20 MW rebuttable those individual small power a line for determining what is a small presumption for hydropower resources, production facilities 20 MW or less still entity.961 In establishing 20 MW as would be the case for cogenerators, needed the additional protections and presumption as the line between large because hydropower resources are encouragement.957 However, since and small QFs for purposes of section required by the FPA section 10(a) to be Order Nos. 688 and 688–A the 210(m), the Commission looked at other best adapted for comprehensive uses, Commission has recognized multiple non-QF rulemaking orders in which it including non-power generation examples of small power production considered what was a small entity and purposes such as irrigation, flood facilities under 20 MW participating in those orders showed 20 MW was a control, navigation, recreation, RTO/ISO energy markets. The reasonable number at which to draw the environmental restoration, and wildlife Commission found that the electric line.962 But, as explained below, the preservation. Hydropower Association utilities in those proceedings rebutted Commission has since determined, states that non-powered dams by the presumption of no market access based on changed circumstances since definition were not constructed to and therefore terminated the mandatory the issuance of Order Nos. 688 and 688– generate power. Because power purchase obligation.958 A, that entities with capacity lower than generation is therefore a secondary use 625. We adopt the proposal to revise 20 MW have nondiscriminatory access of these facilities, Hydropower 18 CFR 292.309(d) to reduce the net to the markets and, therefore, capacity Association asserts that subjecting these power production capacity level at facilities to new avoided cost which the presumption of 959 See Order No. 688, 117 FERC ¶ 61,078 at PP calculations will necessarily burden nondiscriminatory access to a market 74–78 (establishing rebuttable presumption); Order attaches for small power production No. 688–A, 119 FERC ¶ 61,305 at P 95 (‘‘There is hydropower resources more than other no perfect bright line that can be drawn and we small power production facilities. facilities, but not for cogeneration have reasonably exercised our discretion in Hydropower Association also asserts facilities. However, recognizing some of adopting a 20 MW or below demarcation for that there is almost 5 GW of potential the challenges that QFs near 1 MW have purposes of determining which QFs are unlikely to in participating in such markets that have nondiscriminatory access to markets.’’). non-power dams that could be 960 have been identified by commenters, in See Connecticut Commission Comments at developed and that the 20 MW 20–21; Kentucky Commission Comments at 8. 961 Order No. 688–A, 119 FERC ¶ 61,305 at P 97 955 Hydropower Association Comments at 2–7 (‘‘Although there is no unique and distinct 949 Industrial Energy Consumers Comments at 9– (citing 16 U.S.C. 803). megawatt size that uniquely determines if a 10. 956 Ohio Consumers Counsel Comments at 2–5. generator is small, in other contexts the 950 One Energy Comments at 2. 957 PPL Elec. Utilities Corp., 145 FERC ¶ 61,053 at Commission has used 20 MW, based on similar 951 Industrial Energy Consumers Comments at 9– P 24; Va. Elec. & Power Co., 151 FERC ¶ 61,038, at considerations to those presented here, to 10. P 21; N. States Power Co., 151 FERC ¶ 61,110. determine the applicability of its rules and 952 Renewable Baseload Coalition Comments at 2. 958 See, e.g., Fitchburg Gas and Elec. Light Co., policies.’’). 953 Public Interest Organizations Comments at 76. 146 FERC ¶ 61,186, at P 33 (2014); City of 962 See Order No. 688, 117 FERC ¶ 61,078 at P 76; 954 NRECA Comments at 18–19. Burlington, Vt., 145 FERC ¶ 61,121, at P 33 (2013). Order No. 688–A, 119 FERC ¶ 61,305 at PP 96–97.
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level of 20 MW may no longer be a presumption of nondiscriminatory discriminatory access to RTO/ISO reasonable place to establish the market access. markets. presumption on what constitutes a 632. Additionally, since the issuance 635. Based on the foregoing, we find smaller entity under our regulations. of Order No. 688 the Commission has it reasonable to update the presumption 628. Similar to our analysis in Order required each RTO/ISO to update its under these regulations as to what No. 688, we have determined that tariff to include a participation model constitutes a small entity that has non- entities below 20 MW now can for electric storage resources that discriminatory access to RTO/ISO 963 participate in RTO/ISO markets. established a minimum size markets and markets of comparable Here, we are updating the rebuttable requirement for participation in the competitive quality below 20 MW, and presumption based on industry changes RTO/ISO markets that does not exceed that 5 MW represents a reasonable new since Order No. 688. Moreover, it is 100 kW.965 These proposals require threshold that accounts for the change reasonable to update the rebuttable RTO/ISOs to revise their tariffs to of circumstances indicating that 20 MW presumption as markets defined in provide easier access for smaller no longer is appropriate but also PURPA section 210(m)(1)(A), (B), and resources. Requiring markets to accommodates commenters’ concerns (C) evolve because that statute itself accommodate storage resources to as that a 1 MW threshold would be too does not establish a presumption and low as 100 kW also supports that low. We acknowledge that ‘‘there is no we are updating the rules, as PURPA resources smaller than 20 MW have unique and distinct megawatt size that provides we will do from time to time, nondiscriminatory access to those RTO/ uniquely determines if a generator is 968 to ensure we comply with PURPA. ISO markets. The Commission believes small.’’ We find that a 5 MW However, because the revised that these developments support threshold accords with PURPA’s presumption established in this final updating the 20 MW presumption to a mandate to encourage small power rule is a rebuttable presumption, QFs lower number. production facilities, recognizes the can seek to overcome it. progress made in wholesale markets as 629. Over the last 15 years, the RTO/ 633. Commenters argue that discussed above, and balances the ISO markets have matured, market individually each of these changes in competing claims of those seeking a participants have gained a better circumstances, standing alone, may not lower threshold and those seeking a understanding of the mechanics of such support the reduction of the threshold higher threshold. markets, and, as a result, we find that it below 20 MW. But when the changes 636. Individual small power is reasonable to presume that access to are viewed together, we find that their production QFs that are over 5 MW and the RTO/ISO markets has improved and cumulative effect demonstrates that it is less than 20 MW can seek to make the that it is appropriate to update the reasonable for the Commission to case, however, that they do not truly presumption for smaller production maintain a small entity rule but update have nondiscriminatory access to a facilities. As we did in Order No. 688, its determination of what is a small market and should still be entitled to a we have looked to indicia in other entity under this presumption under the mandatory purchase obligation. orders to determine where the PURPA regulations. Additionally, the 637. Regarding Advanced Energy presumption should be set. prospect of increased participation of Economy’s argument that the 630. We find that at this time, market distributed energy resources in energy Commission failed to sufficiently justify rules are inclusive of power producers markets further supports the proposition its change in policy, we disagree.969 In below 20 MW participating in markets. that wholesale markets are FCC v. Fox Television, the court stated For example, since the issuance of accommodating resources with smaller that, when an agency makes a change in Order No. 688, the Commission has capacities.966 policy, the agency must show that there required public utilities to increase the 634. The Commission recognizes that are good reasons for the change, ‘‘[b]ut availability of a Fast-Track certain of these precedents would it need not demonstrate to a court’s interconnection process for projects up support reducing the presumption satisfaction that the reasons for the new to 5 MW.964 That the Commission chose below 5 MW, and perhaps even lower policy are better than the reasons for the a 5 MW cut-off for eligibility for the fast- than 1 MW. However, the Commission old one; it suffices that the new policy track procedures represents an implicit has carefully considered the comments is permissible under the statute, that judgment by the Commission that detailing the problems that QFs have there are good reasons for it, and that facilities larger than 5 MW do not need had in participating in RTO/ISO the agency believes it to be better, which such procedures to be able to markets, problems that necessarily are the conscious change of course interconnect to the grid. more acute for smaller QFs at or near adequately indicates.’’ 970 631. While the existence of Fast-Track the 1 MW threshold proposed in the 638. To be clear, we are maintaining interconnection processes does not on NOPR.967 The Commission therefore has our determination from Order No. 688 its own demonstrate nondiscriminatory determined that a 5 MW is a more that small entities potentially may not access for resources under 20 MW, it reasonable threshold of non- have non-discriminatory access for does indicate that entities smaller than purposes of PURPA section 210(m). 20 MW have access to the market. 965 Order No. 841, 162 FERC ¶ 61,127 at P 265. However, as explained above, the Presuming that QFs above 5 MW have 966 See, e.g., Elec. Participation in Mkts Operated Commission has determined that using such access is therefore a reasonable by Reg’l Transmission Orgs and Independent Sys. 20 MW as an indicator of what approach to identifying a capacity level Operators, 157 FERC ¶ 61,121, P 129 (2016) (‘‘The constitutes a small entity is no longer costs of distributed energy resources have decreased at which to update the rebuttable significantly, which when paired with alternative valid. Entities below 20 MW revenue streams and innovative financing solutions, increasingly have access to the markets, 963 In fact, when the Commission established the is increasing these resources’ potential to compete become familiar with practices and rebuttable presumption of 20 MW, commenters in in and deliver value to the organized wholesale procedures, and that markets have since that proceeding cited instances where QFs at 1 MW electric markets.’’ (footnote omitted)).] or above had already had nondiscriminatory access 967 See, e.g., Allco Comments at 17–19; Advanced to RTOs/ISOs. See Order No. 688, 117 FERC Energy Economy Comments at 10–11; DC 968 Order No. 688–A, 119 FERC ¶ 61,305 at P 97. ¶ 61,078 at PP 64–66. Commission Comments at 5; Public Interest 969 Advanced Energy Economy Comments at 6 964 Order No. 792, 145 FERC ¶ 61,159, at P 103, Organizations Comments at 89–90; SEIA Comments (citing FCC v. Fox Television, 556 U.S. at 515). clarified, Order No. 792–A, 146 FERC ¶ 61,214. at 45–49. 970 FCC v. Fox Television, 556 U.S. at 515.
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implemented several changes to provide to markets outside a persistently sale of electricity is simply a byproduct easier access to smaller facilities, congested area to sell the QF output or of that purpose. Finally, like all QFs including small power production QFs, capacity. This is not intended to be an over 20 MW, we recognize that there storage facilities, and distributed energy exhaustive list of the factors that a QF may be particular small power resources. These changes demonstrate a could rely upon in seeking to rebut the production facilities with certain change in facts since the time we issued presumption. These factors, among operational characteristics or that are Order No. 688 which supports our other indicia of lack of located in an area where persistent updating of what constitutes a small nondiscriminatory access, will be transmission constraints in effect cause entity for purposes of PURPA section assessed by the Commission on a case- the QF not to have access to markets 210(m). by-case basis in considering a claim that outside a persistently congested area to 639. Accordingly, we decline to adopt the presumption of nondiscriminatory sell the QF output or capacity. Ohio Consumers Counsel’s suggestion access to the defined markets should be 645. While we appreciate Indiana that electric utilities continue to have considered rebutted for a specific QF. Municipals’ concern over preserving the burden to demonstrate that certain 642. The addition of these factors Commission resources, we will deny its small power production QFs under 20 addresses commenters’ concern that not request to automatically apply the lower MW have nondiscriminatory access to all small power production facilities threshold to utilities that have already markets like PJM before being relieved between 5 and 20 MW may have been granted termination for QFs over of the mandatory purchase obligation nondiscriminatory access to competitive the 20 MW threshold. We find that it is for such QFs. markets, and facilitates the ability of appropriate to require utilities that were 640. While we find that it is small power production facilities facing previously granted termination of the reasonable to update the rebuttable barriers to participation in RTO markets mandatory purchase obligation for new presumption from 20 MW to 5 MW, we to demonstrate their lack of access. For contracts and obligations for QFs above recognize commenters’ concerns example, while a small power 20 MW, but are now seeking to regarding specific barriers to production facility between 5 MW and terminate the mandatory purchase participation in RTO markets that may 20 MW does not need to be physically obligation for new contracts and affect the nondiscriminatory access to interconnected to transmission facilities obligations for small power production those markets of some individual small to be considered as having access to the facilities between 5 and 20 MW to power production facilities between 5 statutorily-defined wholesale electricity follow the procedures in 18 CFR MW and 20 MW. markets, we recognize there are some 292.310, including procedures for To address these concerns, we small power production facilities providing notice to those potentially additionally are revising 18 CFR between 5 MW and 20 MW that may affected QFs within their footprint. That 292.309(c)(2)(i)–(vi) to include factors face additional barriers, such as is, those utilities for which the that small power production facilities excessively high costs and pancaked Commission has already granted relief between 5 MW and 20 MW can point to delivery rates, to access wholesale from the mandatory purchase obligation in seeking to rebut the presumption that markets. for small power production facilities they have nondiscriminatory access. 643. For example, several commenters over 20 MW must reapply with the These factors are in addition to the express concern over the resources or Commission requesting relief from the existing ability, pursuant to 18 CFR administrative burden for some small mandatory purchase obligation for small 292.309(c), to rebut the presumption of power QFs that lack the necessary power production facilities between 5 access to the market by demonstrating, experience or expertise to participate in MW and 20 MW. inter alia, operational characteristics or energy markets. Recognizing these 646. Among other factors, the transmission constraints. concerns, we have added consideration regulation’s notice provision mentioned 641. Specifically, the Commission of both the fact that some small power above will allow small power adds to 18 CFR 292.309(c) the following production facilities will face additional production facilities between 5 MW and five factors: (1) Specific barriers to difficulties due to costs, administrative 20 MW an opportunity, if applicable, to connecting to the interstate transmission burdens, length of the interconnection present evidence that their facility does grid, such as excessively high costs and study process and the size of the not have nondiscriminatory access to pancaked delivery rates; (2) the unique queues, and the fact that some small defined markets based on the factors circumstances impacting the time/ power production QFs do not have discussed above.971 In the proceeding in length of interconnection studies/queue access to the expertise of affiliated which the utility seeks to terminate the to process small power QF entities. mandatory purchase obligation between interconnection requests; (3) a lack of 644. We agree with commenters that 5 MW and 20 MW, we will not entertain affiliation with entities that participate some small power production facilities arguments that the utility should lose its in RTO/ISO markets; (4) a predominant are similar to cogeneration facilities previously granted termination of purpose other than selling electricity because their predominant purpose is purchase obligation at 20 MW and which would warrant the small power not power production. Like above; our regulations provide how a QF being treated similarly to cogeneration facilities, the sale of mandatory purchase obligation can be cogenerators (e.g., municipal solid waste electricity from these small power reinstated. We do not, in this final rule, facilities, biogas facilities, run-of-river production facilities is a byproduct of change a QF’s right to seek hydro facilities, and non-powered another purpose and these facilities reinstatement of the mandatory dams); (5) the QF has certain might not be as familiar with energy purchase obligation where the operational characteristics that markets and the technical requirements conditions set forth in 18 CFR effectively prevent the qualifying for such sales. Therefore, we will allow 292.309(a), (b), or (c) are no longer facility’s participation in a market; and the small subset of small power met.972 (6) the QF lacks access to markets due production facilities that are between 20 647. Regarding the Michigan to transmission constraints, including MW and 5 MW to rebut the Commission’s questions, this final rule that it is located in an area where presumption of access to markets where persistent transmission constraints in the predominant purpose of the facility 971 18 CFR 292.310. effect cause the QF not to have access is other than selling electricity, and the 972 See 18 CFR 292.311.
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preserves the rights or remedies of any Commission further noted that the utility-sponsored RFP programs often party under existing contracts or current PURPA Regulations are not fall far short of genuine competition.982 obligations, in effect or pending prescriptive about how an electric 653. Public Interest Organizations approval before the appropriate state utility must make such a demonstration state that Order No. 688–A specifies that regulatory authority or non-regulated and nothing in the PURPA Regulations demonstrating that a market offers ‘‘a electric utility on or before December or precedent would bar an electric meaningful opportunity to sell’’ usually 31, 2020 with QFs between 5 MW and utility from arguing that RFPs in requires evidence of QF transactions, 20 MW. Consistent with Commission combination with liquid market hubs which is not possible with a market 983 precedent, this final rule defines the are sufficient to satisfy PURPA section hub. Public Interest Organizations term ‘‘obligations’’ broadly to 210(m)(1)(C). argue that market hubs are not encompass any existing legally equivalent to PURPA section enforceable obligation.973 650. The Commission then stated that 210(m)(1)(A) or (B) markets because, it believed that a properly structured unlike an independently administered 2. Reliance on RFPs and Liquid Market proposal along the lines proposed by auction, there is no guarantee that a QF Hubs To Terminate Purchase Obligation NARUC potentially could satisfy the will be able to sell their energy even if Under PURPA Section 210(m) statutory requirements under PURPA it is the lowest cost resource.984 a. NOPR Discussion section 210(m)(1)(C) and that it would 654. Public Interest Organizations 648. In the NOPR, the Commission consider such proposals on a case-by- further contend that the Commission noted that NARUC had proposed that case basis. Although the Commission does not have the authority to approve the Commission allow utilities to rely did not propose additional criteria a RFPs or liquid market hubs as PURPA on RFPs (in combination with liquid utility or utilities may rely on to satisfy section 210(m)(1)(C) wholesale markets market hubs) to establish eligibility to PURPA section 210(m)(1)(C), the because they are not of comparable terminate a utility’s purchase obligation Commission sought comments on any qualify to Day 1 or Day 2 markets, i.e., pursuant to PURPA section specific factors that would be useful to to PURPA section 210(a)(1)(A) or (B) 985 210(m)(1)(C).974 After describing consider in determining how a utility or markets. generally how such a proposal might be utilities may satisfy PURPA section ii. Comments in Support structured, NARUC suggested that ‘‘[t]he 210(m)(1)(C).977 655. Several commenters support Commission should create a yardstick of b. Comments allowing competition to be an characteristics that describe in detail alternative to the mandatory purchase how a utility could qualify for an i. Comments in Opposition obligation.986 ELCON supports exemption under subparagraph (C).’’ 975 competitive procurements that exempt 649. The Commission stated that, 651. A few commenters do not industrial self-supply.987 under the PURPA Regulations, electric support allowing competition to be an 656. APPA supports the Commission utilities already may seek to terminate alternative to the mandatory purchase reviewing factors that would determine their mandatory purchase obligation obligation.978 ELCON is concerned that if a market is competitive and pursuant to PURPA section 210(m)(1)(C) no state competitive procurement is comparable to PURPA sections by demonstrating that a particular robust enough to replace avoided 210(m)(1)(A) and (B).988 Xcel proposes market is of comparable competitive capacity costs.979 Solar Energy that the PURPA section 210(m)(1)(C) quality to markets described in PURPA Industries supports using RFPs to set test should evaluate whether market section 210(m)(1)(A) and (B).976 The avoided cost rates, but does not support players have a reasonable opportunity to using RFPs to vitiate utilities’ participate in the market, rather than 973 See Cedar Creek Wind LLC, 137 FERC mandatory purchase obligations.980 ¶ 61,006, at PP 35–36 n.62 (2011) (stating that whether the type of market is similar to courts have recognized negotiations regarding terms 652. Public Interest Organizations PURPA section 210(m)(1)(A) and (B) that parties to the negotiations intend to become contend that RFPs are not comparable in markets.989 A few commenters finalized or written contract, may in some quality to PURPA section 210(m)(1)(A) requested a technical conference to circumstances result in legally enforceable obligations on those parties notwithstanding the or (B) markets because there is only a identify the criteria for determining absence of a writing). See generally Burbach single buyer and there are no safeguards what processes are competitive.990 Broadcasting Co. of Delaware v. Elkins Radio Corp., against the anti-competitive behavior of Colorado Independent Energy would 278 F.3d 401, 407–09 (4th Cir. 2002); Adjustrite Systems, Inc. v. GAB Business Serv., Inc., 145 F.3d that buyer, such as favoring its own or like the RFP standard for PURPA 543, 550 (2d Cir. 1998); Miller Constr. Co. v. an affiliate’s generation.981 NIPPC, section 210(m)(1)(C) status to be higher Stresstek, 697 P.2d 1201, 1202–04 (Idaho 1985).); CREA, REC, and OSEIA state that, while than for QF pricing and include see also JD Wind 1, LLC, 129 FERC ¶ 61,148 at P they agree in principle that competition evaluation of bid data and the modeling 25; Grouse Creek Wind Park, LLC, 142 FERC ¶ 61,187 at PP 40–41. should be the motivating force in energy process to show the absence of bias 974 NOPR, 168 FERC ¶ 61,184 at P 131 (citing markets, their experience shows that against renewable and cogeneration NARUC Supplemental Comments, Docket No. AD16–16–000 (filed Oct. 17, 2018)). 982 FERC ¶ 61,191, at PP 29–38 (2012) (denying NIPPC, CREA, REC, and OSEIA Comments at 975 Id., attach. A at 9. application to terminate mandatory purchase 66. 976 Id. P 132 (citing Order No. 688–A, 119 FERC obligation on the grounds that the Four Corners 983 Public Interest Organizations Comments at 92 ¶ 61,305 at P 43 (‘‘Congress believed the two types Hub is not of comparable competitive quality to (citing Order No. 688–A, 119 FERC ¶ 61,305 at P of markets identified in subparagraphs (A) and (B), markets in sections 210(m)(1)(A) and (B) of 38). while distinct between themselves, contain certain PURPA)). 984 Id. competitive qualities that justify termination of the 977 Id. P 133. 985 Id. at 90–91. purchase requirement for any QF with 978 986 Advanced Energy Economy Comments at 12; nondiscriminatory access to those markets. Allco Comments at 17–19; Public Interest APPA Comments at 29; Colorado Independent Subparagraph (C) directs the Commission to Organizations Comments at 90. 979 Energy Comments at 7; Xcel Comments at 11. consider these competitive qualities when ELCON Comments at 19. 987 analyzing whether there are other markets that, 980 Solar Energy Industries Comments at 24 ELCON Comments at 19. while not meeting the specific requirements of (citing Solar Energy Industries, Supplemental 988 APPA Comments at 26–29. subparagraphs (A) and (B), are sufficiently Comments, Docket No. AD16–16–000, at 10–37, 40– 989 Xcel Comments at 11. competitive to justify termination of the purchase 58 (filed Aug. 28, 2019)). 990 Advanced Energy Economy Comments at 13; requirement.’’)); cf. Pub. Serv. Co. of N.M., 140 981 Public Interest Organizations Comments at 93. ELCON Comments at 19.
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projects and likewise the absence of bias competitive market prices in general reliably plan their systems while for utility self-build projects.991 should reflect the avoided cost energy ensuring resource adequacy. 657. Arizona Public Service agrees rates of utilities with access to such Additionally, the development and with NARUC that the Commission markets in a given region. We will definition of objective and reasonable should allow utilities to rely on RFPs to therefore consider, on a case-by-case factors to determine commercial establish eligibility to terminate the basis, whether a properly run RFP or viability and financial commitment to utility’s purchase obligation pursuant to competitive acquisition process may construct a facility would encourage the PURPA section 210(m)(1)(C). Arizona also justify termination of the PURPA development of QFs by providing QFs Public Service believes this proposal is purchase obligation pursuant to PURPA with more certainty as to when they will one way a utility could demonstrate that section 210(m)(1)(C). obtain a LEO.995 a market is of comparable competitive H. Legally Enforceable Obligation quality to the markets described in 2. Comments PURPA sections 210(m)(1)(A) and 1. NOPR Proposal a. Comments in Opposition 992 (B). 663. The Commission proposed to 666. Several commenters oppose the 658. APPA argues that market hubs add regulatory text in 18 CFR should be considered as possibly 292.304(d)(3) to require QFs to Commission’s proposal to require QFs comparable, particularly to PURPA demonstrate that a proposed project is to demonstrate that a proposed project section 210(m)(1)(B), which requires commercially viable and that the QF has is commercially viable and the QF has that QFs have access to Commission- a financial commitment to construct the a financial commitment to construct the approved transmission service and proposed project pursuant to objective, proposed project pursuant to objective, competitive wholesale markets for long reasonable, state-determined criteria in reasonable, state-determined criteria in and short-term capacity and energy order to be eligible for a LEO. The order to be eligible for a LEO and that 993 sales. APPA highlights the Commission further proposed to states have flexibility as to what Commission finding that the Mid- provide that states have flexibility as to constitutes an acceptable showing of Columbia and Palo Verde hubs have what constitutes an acceptable showing commercial viability and financial sufficient liquidity to find just and of commercial viability and financial commitment, arguing it undermines reasonable rates and adds that an commitment. PURPA’s intent to promote QF 996 empirical test of market liquidity could 664. The Commission stated that its development. 994 be created. objective in requiring a showing of 667. NIPPC, CREA, REC, and OSEIA c. Commission Determination commercial viability and the QF’s argue that developers cannot obtain financial commitment to construct the financing without the financial 659. In this final rule, we affirm that project was to ensure that no electric commitment of a PPA or LEO from the we will consider utility proposals to utility obligation is triggered for those utility and therefore requiring financial terminate the purchase obligation QF projects that are not sufficiently viability as a condition precedent to pursuant to PURPA section 210(m)(1)(C) advanced in their development and, obtain a LEO is problematic.997 Western on a case-by-case basis, including utility therefore, for which it would be Resource Councils argues that the NOPR proposals based on competitive unreasonable for a utility to include in proposal represents an onerous financial solicitations or liquid market hubs. its resource planning, while at the same and bureaucratic barrier that will lead to 660. In response to Public Interest time ensuring that the purchasing utility a substantial reduction in the number of Organizations, as explained above in does not unilaterally and unreasonably QFs.998 Section IV.A.1, PURPA section 210(m) decide when its obligation arises. The obligates the Commission to grant any 668. Southeast Public Interest NOPR proposed that states may require request to terminate a utility’s obligation Organizations argue that the proposal a showing, for example, that a QF has to purchase from a QF with does not sufficiently narrow the range of satisfied, or is in the process of nondiscriminatory access to the divergent LEO tests that have already undertaking, at least some of the specified markets that satisfy that been adopted by the states and opposes following prerequisites: (1) Obtaining provision. Whether any particular allowing states additional flexibility in site control adequate to commence market is of comparable quality to a Day establishing criteria up to a fully construction of the project at the 1 or Day 2 market necessarily must be executed agreement.999 sPower requests proposed location; (2) filing an determined in the context of an that the Commission establish specific interconnection application with the individual case. criteria and prohibit states from appropriate entity; (3) securing local 661. We refrain from outlining here an imposing any additional criteria.1000 permitting and zoning; or (4) other exhaustive list of factors that will be Solar Energy Industries requests that the similar, objective, reasonable criteria used in any such case-by-case Commission develop a concrete baseline that allow a QF to demonstrate its evaluation, but at a minimum we will be commercial viability and financial guided by the important criteria 995 Because QFs already in operation have commitment to construct the facilities. discussed previously in this rule in necessarily demonstrated a commitment to The NOPR stated that these proposed construct the project, the Commission stated that it section IV.B.8 on the use of competitive indicia were not intended to be does not intend commercial viability and financial solicitations to determine avoided costs. exhaustive and the Commission sought commitment requirements to serve as prerequisites 662. Consistent with our findings and to QFs already in operation with existing LEOs to comment on these indicia and others discussion in section IV.B.4 on the use obtaining new LEOs. that also might be appropriate for 996 of market hubs to determine avoided NIPPC, CREA, REC, and OSEIA Comments at consideration. 81; Public Interest Organizations Comments at 98; cost, the Commission finds that 665. The Commission stated that it Western Resource Councils Comments at 144. believed requiring QFs to demonstrate 997 NIPPC, CREA, REC, and OSEIA Comments at 991 Colorado Independent Energy Comments at 6, 81. 11–12. their commercial viability and financial 998 Western Resource Councils Comments at 144. 992 Arizona Public Service Comments at 8–10. commitment to construct the facilities 999 Southeast Public Interest Organizations 993 APPA Comments at 27. based on such indicia before obtaining Comments at 43 994 Id. at 28. a LEO would allow electric utilities to 1000 sPower Comments at 14.
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in determining when a QF is entitled to financial protection to ensure that 675. Connecticut Authority supports a purchase contract. ratepayers will not be harmed if the QF the proposal arguing that the factors 669. Solar Energy Industries and fails to begin operations.1005 included in the NOPR will provide Public Interest Organizations argue that 671. American Dams argues that greater certainty and less risk to QF requiring developers to invest Interconnection Agreements are developers and purchasing utilities additional capital prior to obtaining a generally processed far too slowly, a which is consistent with PURPA’s goal LEO will prevent smaller companies problem that should be addressed by the of developing renewable resources.1012 who are unable to invest heavily in Commission.1006 The Chamber of Commerce argues that early state development activity from 672. Southeast Public Interest the proposed factors indicate a participating.1001 Solar Energy Organizations support the requirement developer’s good-faith intention to Industries argue that it is unjust and of demonstrating site control, but state ultimately develop its proposed QF.1013 unreasonable to require QFs to invest that requiring permits can be time- The Michigan Commission states that it millions of dollars in site control, consuming and costly such that pre- supports the proposal, currently has a permit acquisition and interconnection financing QFs may not have the rulemaking and several cases pending costs in order to secure the opportunity resources for the lengthy permitting regarding LEOs, and appreciates any to negotiate with the purchasing utility. process, and it is unreasonable to expect additional clarity the Commission could For those states that do not willingly a QF to incur these expenses until it has provide.1014 disclose their avoided cost rates or secured a price for its output so that it c. Comments Requesting Modification methodology, the NOPR’s LEO proposal can in turn secure financing for the requires QFs to incur substantial project.1007 676. NIPPC, CREA, REC, and OSEIA request that the Commission: (1) Further expense to establish their commercial b. Comments in Support viability without a reasonable define the terms ‘‘commercial viability’’ understanding of what their rate may 673. Numerous commenters support and ‘‘financial commitment’’ to avoid be.1002 the NOPR’s LEO proposal, asserting that litigation; (2) clarify that any changes to 670. In striking a balance between state agencies are better positioned to the LEO rules will not affect the interconnection and development risk, develop criteria that reflect their unique viability of any executed contract Solar Energy Industries proposes that operational circumstances, resource between a developer and utility, 1008 the first prerequisite to a LEO formation planning needs and risk appetite. regardless of the facility’s development be either: (a) The completion of the Several commenters note that the status; and (3) clarify that the LEO rules System Impact Study (or the equivalent proposed factors provide a reasonable will not preclude nor bar any utility in the state interconnection process); or balance between the planning needs of from executing a PPA before the QF may (b) where the utility cannot complete the connecting utility and certainty to be able to demonstrate compliance with 1009 the System Impact Study within a QF developers. Several commenters the implementation of LEO rules.1015 assert that requiring QFs to demonstrate reasonable period of time, one year after i. Studies tendering an interconnection request to commercial viability and financial the host utility.1003 Where a QF has commitment will reduce the reliability 677. NorthWestern requests that the Commission require more than just the obtained site control, initiated state or other risks a utility faces by having submission of an interconnection permitting processes, submitted an to plan for its system needs or resource application prior to obtaining a LEO in interconnection request and associated adequacy around a QF that is never 1010 order to demonstrate that the proposal study deposit, and has been certified developed. 674. Several commenters agree that is more than a speculative paper through the submission of a Form No. the proposed regulations will provide project.1016 Portland General requests 556, the Commission should find that certainty to host utilities and state that the Commission allow states to the QF is eligible to establish a LEO to commissions while decreasing systems require developers to have completed sell to the purchasing utility, provided impact and associated costs.1011 the first interconnection study.1017 The that: (1) The QF has received a System South Dakota Commission states that Impact Study report (or equivalent) or 1005 Id. developers should be required to have one year has elapsed since the QF’s 1006 American Dams Comments at 5–6. completed a transmission feasibility interconnection request was tendered to 1007 Southeast Public Interest Organization study or system impact study with a the host utility; and (2) the QF commits Comments at 43–44. determination of the interconnection to achieving commercial operation 1008 Alaska Power Comments at 1–2; APPA costs the QF would be required to pay within 180 days of the completion of all Comments at 30; Chamber of Commerce at 8; Colorado Independent Energy Comments at 13; prior to obtaining a LEO.1018 Portland interconnection facilities and network Connecticut Authority Comments at 24–25; General requests that off-system QFs be upgrades by the utility.1004 Solar Energy Consumer Alliance Comments at 2; Consumers required to have completed the first Industries asserts that QFs would, upon Energy Comments at 5; East Kentucky Comments at study milestone of the transmission satisfaction of these criteria, be legally 3–4; East River at 2; El Paso Electric Comments at 6–7; Golden Valley Comments at 7–8; Indiana service request.1019 entitled to negotiate with the purchasing Municipal Comments at 11–12; Institute for Energy 678. SC Solar Alliance requests that utility to develop a PPA setting forth the Research Comments at 2; Massachusetts DPU the Commission adopt a recent South terms and conditions of the purchase, Comments at 10; NARUC Comments at 7–8; NIPPC, CREA, REC, and OSEIA Comments at 81; NRECA Carolina Commission ruling that a QF including liability if the QF fails to Comments at 21; North Carolina Commission Staff should be able to establish a LEO after perform. Projects that reach agreement Comments at 6; Northern Laramie Range Alliance Comments at 3–4; Ohio Commission Energy will proceed according to the terms of 1012 Connecticut Authority Comments at 24–25. Advocate Comments at 10; Oregon Commission at the PPA and the purchasing utility can 1013 6. Chamber of Commerce Comments at 8. establish milestones with enough 1014 1009 Alliant Energy Comments at 21; Industrial Michigan Commission Comments at 7–8. Energy Consumers Comments at 14–16. 1015 NIPPC, CREA, REC, and OSEIA Comments at 1001 Solar Energy Industries Comments at 41; 1010 Duke Energy Comments at 19; EEI Comments 81–83. Public Interest Organization Comments at 80–82. at 37. 1016 NorthWestern Comments at 15–16. 1002 Solar Energy Industries Comments at 41. 1011 Alliant Energy Comments at 21–22; NRECA 1017 Portland General Comments at 20. 1003 Id. at 43. at 21; Northern Laramie Range Alliance Comments 1018 South Dakota Commission Comments at 2. 1004 Id. at 3–4. 1019 Portland General Comments at 20.
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receiving a System Impact Study or to reject purchases from QFs if the 686. We agree with Southeast Public within one year if a System Impact utility has no need for additional Interest Organizations’ concerns Study is not provided in a timely capacity. The Institute for Energy regarding requiring QFs to obtain manner and that PPA in-service dates Research states that such need could be permits in order to determine must be extended based on determined separately, on an annual commercial viability. In some regions interconnection delays.1020 basis, a stand-alone basis, or as part of the permitting and zoning process can an IRP process.1028 be lengthy and expensive, making ii. Commercial Viability obtaining the permits and zoning 3. Commission Determination 679. Alliant Energy requests that the changes a condition to a LEO Commission consider requiring QF 684. In this final rule, we adopt the unreasonable. Therefore, instead of developers to have contracts in place NOPR proposal to require QFs to requiring a QF to have secured local with equipment suppliers and an demonstrate that a proposed project is permitting and zoning, states can analysis of interconnections needed.1021 commercially viable and that the QF has require QFs to have applied for all of the 680. North Carolina Commission Staff a financial commitment to construct the necessary permits and zoning variances, requests that the Commission adopt a proposed project, pursuant to objective, including the payment of all necessary North Carolina Commission standard reasonable, state-determined criteria in fees, as a factor in demonstrating the that QFs must (1) commit to sell their order to be eligible for a LEO.1029 We QF’s commercial viability. States may power via a written notice of also affirm that the states have require a showing that such applications commitment by the earlier of 105 days flexibility as to what constitutes an have been submitted to the relevant after submission of an interconnection acceptable showing of commercial regulatory bodies (including payment of request or upon receipt of the system viability and financial commitment, the application fees). impact study, (2) have filed a report of albeit subject to the criteria being 687. Several commenters argue that proposed construction, and (3) objective and reasonable. We find that requiring QFs to demonstrate financial submitted an interconnection request requiring a showing of commercial viability prior to obtaining a LEO is under the state’s interconnection viability and financial commitment, problematic because QFs need a LEO to protocol which requires the QF to based on objective and reasonable obtain financing.1030 However, demonstrate site control.1022 sPower criteria, will ensure that no electric demonstrating the required financial argues that option contracts should be utility obligation is triggered for those commitment does not require a sufficient to demonstrate site QF projects that are not sufficiently demonstration of having obtained control.1023 advanced in their development, and financing. Requiring QFs to, for therefore, for which it would be example, apply for all relevant permits, iii. Financial Viability unreasonable for a utility to include in take meaningful steps to seek site 681. Portland General and sPower its resource planning. At the same time, control, or meet other objective and suggest requiring developers to pay a the criteria ensure that the purchasing reasonable milestones in the QF’s deposit to state commissions to utility does not unilaterally and development can sufficiently demonstrate financial viability with the unreasonably decide when its obligation demonstrate QF developers’ financial amount based on the capacity of the QF arises. We believe this strikes the right commitment in the QF development and released upon project balance for QF developers and and allows utilities to reasonably rely completion.1024 Portland General asserts purchasing utilities and should on the LEO in planning for system that having to post a deposit encourages encourage development of QFs. resource adequacy. Obtaining a PPA or developers to perform sufficient due 685. Examples of factors a state could financing cannot be required to show diligence prior to claiming a LEO.1025 reasonably require are that a QF proof of financial commitment. 682. North Carolina Commission Staff demonstrate that it is in the process of 688. The intent of these factors is to argues that, in order to protect at least some of the following provide a reasonable balance between ratepayers from QFs gaming the process, prerequisites: (1) Taking meaningful providing QFs with objective and any project that backs out of its notice steps to obtain site control adequate to transparent milestones up front that are of commitment should only receive as- commence construction of the project at needed to obtain a LEO, allowing states available rates for two years.1026 the proposed location and (2) filing an the flexibility to establish factors that interconnection application with the address the individual circumstances of iv. Rejecting QF Purchases and appropriate entity. The state could also each state, and increasing utilities’ Expanded Curtailment Rights require that the QF show that it has ability to accurately plan their 683. North Carolina Commission Staff submitted all applications, including systems.1031 Establishing objective and suggests that the Commission update its filing fees, to obtain all necessary local reasonable factors is intended to limit regulations to allow curtailing QFs permitting and zoning approvals. We the number of unviable QFs obtaining when it would be uneconomic for the note that the factors that the state LEOs and unnecessarily burdening utility to make such purchases.1027 The requires must be factors that are within utilities that currently have to plan for Institute for Energy Research argues that the control of the QF. Thus, we clarify QFs that obtain a LEO very early in the the Commission should allow a utility that it is appropriate for states to require process but ultimately are never a QF to demonstrate that it is in the developed.1032 In adopting this 1020 SC Solar Alliance Comments at 15. process of obtaining site control or has provision, the Commission is raising the 1021 Alliant Energy Comments at 22. applied for all local permitting and bar to prevent speculative QFs from 1022 North Carolina Commission Staff Comments zoning approvals, rather than requiring obtaining LEOs, and the associated at 6. a QF to show that it has obtained site burden on purchasing utilities, but is 1023 sPower Comments at 15. control or secured local permitting and 1024 Portland General Comments at 15–16; sPower 1030 NIPPC, CREA, REC, and OSEIA Comments at Comments at 14–15. zoning. 81; Western Resource Council Comments at 144. 1025 Portland General Comments at 20–21. 1031 Alliant Energy Comments at 21; Industrial 1026 North Carolina Commission Staff Comments 1028 Institute for Energy Research Comments at Energy Consumers Comments at 14–16. at 6. 2–3. 1032 Duke Energy Comments at 19; EEI Comments 1027 Id. at 8. 1029 NOPR, 168 FERC ¶ 61,184 at P 140. at 37.
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not establishing a barrier for financially the reasons stated above, we find that the LEO rules adopted herein precludes committed developers seeking to states are in the best position to any utility from choosing to execute a develop commercially viable QFs. determine what specific factors would PPA before a QF has demonstrated 689. We disagree that establishing best suit the specific circumstances of compliance with the LEO rules adopted reasonable, transparent factors is an that state, so long as they are objective here. onerous barrier or will cause a and reasonable, and we provide the Several commenters requested that substantial reduction of QFs. The suggested prerequisites above as the Commission require QFs to do more objective and reasonable criteria we examples of objective and reasonable than just file an interconnection have established will protect QFs factors.1039 While Solar Energy application; instead, for example, against onerous requirements for a LEO Industries’ proposed criteria may be suggesting requiring completion of that hinder financing, such as a reasonable, we decline to mandate system impact study, interconnection or requirement for a utility’s execution of specific terms for the entire country. transmission feasibility study.1042 We an interconnection agreement 1033 or 691. Contrary to Solar Energy disagree. The approach taken here power purchase agreement,1034 or Industries’ assertions, nothing in this recognizes the need for a QF to requiring that QFs file a formal final rule limits a QF developer’s or demonstrate that its project is more than complaint with the state utility’s ability to negotiate rates, terms mere speculation, such that it is commission,1035 or limiting LEOs to or conditions.1040 reasonable for a utility to consider the only those QFs capable of supplying 692. With regard to the argument that resource in its planning projections. A firm power,1036 or requiring the QF to the NOPR’s LEO proposal is QF that has submitted an application for be able to deliver power in 90 days.1037 unreasonable in states that do not interconnection, as well as having taken We find that, by making clear that such disclose their avoided cost rate because meaningful steps to obtain site control conditions are not permitted, and by it would require QFs to incur and has applied for all relevant permits, providing objective criteria to clarify substantial expense to establish while not a guarantee that the project when a LEO commences, the LEO commercial viability without a will be completed, are all objective and provisions we have adopted will reasonable understanding of the reasonable indicators that the QF encourage the development of QFs. purchase rate, we find that such state- developer is seriously pursuing the 690. For those commenters that specific implementation issues can be project and has spent time and requested that the Commission establish addressed case-by-case. To the extent resources in developing the project to specific factors for the states to apply, or that entities believe that a particular show a financial commitment. As to establish a baseline for eligible state’s avoided cost rates or rate setting numerous commenters have explained, factors, or to otherwise limit states’ methodologies do not provide sufficient QFs need a LEO in order to obtain flexibility, we decline to do so. Since its transparency to support a QF’s ability to financing to complete the project, and inception, the Commission’s PURPA make reasonable commercial viability we find that, as an illustrative example, Regulations have established rules and investment decisions, such entities requiring the submission of an defined boundaries allowing states could file a petition for enforcement interconnection request (as opposed to flexibility within those boundaries in against the state at the Commission and, the completion of a system impact study implementing PURPA as appropriate for if the Commission declines to act, later or transmission feasibility study) as one each state. As commenters noted, this file a petition against the state in U.S. criteria strikes an appropriate balance allows states to address their unique district court (pursuant to PURPA between the competing needs. circumstances and best address each section 210(h)(2)(B)). 695. Moreover, it bears remembering states’ needs. Furthermore, existing 693. NIPPC, CREA, REC, and OSEIA that the concept of a LEO was precedent establishes a baseline 1038 and request that we further define the terms specifically adopted to prevent utilities this final rule’s requirement that states commercial viability and financial from circumventing the mandatory adopt objective and reasonable criteria commitment. We decline. As discussed purchase requirement under PURPA by 1043 for determining when a QF has obtained above, we believe the best course is to refusing to enter into contracts. The a LEO provides additional safeguards allow states the flexibility (employing Commission thus has found that (in addition to that baseline) applicable objective and reasonable factors) to requiring a QF to have a utility-executed to both QFs and utilities. Similarly, determine what constitutes commercial contract or interconnection agreement, regarding Solar Energy Industries’ viability and financial commitment or requiring the completion of a utility- proposed pre-requisites and factors, for relative to the unique conditions or controlled study places too much circumstances in each state but also control over the LEO in the hands of the 1033 See, e.g., FLS Energy, Inc., 157 FERC recognizing that existing Commission utility and defeats the purpose of a LEO 1044 ¶ 61,211, at P 26 (2016) (FLS) (stating that requiring precedent establishes boundaries of and is inconsistent with PURPA. signed interconnection agreement as prerequisite to what would be considered reasonable When reviewing factors to demonstrate LEO is inconsistent with PURPA Regulations). commercial viability and financial 1034 and not discriminatory limits for See, e.g., Murphy Flat Power, LLC, 141 FERC commitment, states thus should place ¶ 61,145, at P 24 (2012) (finding that requiring a requirements in establishing a LEO.1041 signed and executed contract with an electric utility 694. Additionally, we clarify that any emphasis on those factors that show that as a prerequisite to a LEO is inconsistent with changes to the LEO rules adopted herein the QF has taken meaningful steps to PURPA Regulations. do not affect the viability of any 1035 See, e.g., Grouse Creek Wind Park, LLC, 142 1042 NorthWestern Comments at 15–16, Portland FERC ¶ 61,187, at P 40 (2013). executed contract or LEO between a QF General Comments at 20, South Dakota Commission 1036 Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d developer and utility in place as of the Comments at 2. 380, 400 (5th Cir. 2014). effective date of this final rule, 1043 JD Wind 1, LLC, 129 FERC ¶ 61,148 at P 25, 1037 Power Resource Group, Inc. v. Public Utility regardless of the facility’s development reh’g denied, 130 FERC ¶ 61,127 (citing Order No. Com’n of Texas, 422 F.3d 231, (5th Cir. 2005). status. Further we clarify that nothing in 69 FERC Stats. & Regs. ¶ 30,128 at 30,880; see also 1038 For example, the Commission has held that Midwest Renewable Energy Projects, LLC, 116 FERC requiring a fully-executed contract or executed ¶ 61,017 (2006). interconnection agreement as a condition precedent 1039 See supra P 685. 1044 FLS, 157 FERC ¶ 61,211 at P 23 (finding such to obtaining a LEO is inconsistent with PURPA. See 1040 See 18 CFR 292.301(b). requirements ‘‘allows a utility to control whether FLS, 157 FERC ¶ 61,211 at P 26; Cedar Creek Wind 1041 See FLS, 157 FERC ¶ 61,211 at P 26; Cedar and when a legally enforceable obligation exists— LLC, 137 FERC ¶ 61,006 at P 35. Creek Wind LLC, 137 FERC ¶ 61,006 at P 35. e.g. by delaying the facilities study.’’).
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develop the QF that are within the QF’s this final rule. It relates to reducing the • Change the current requirement to control to complete, and not on those PURPA section 210(m) rebuttable identify any affiliated facilities with factors that a utility controls. For presumption regarding small power electrical generating equipment within example, requiring a QF to make a production QFs’ nondiscriminatory one mile of the applicant facility’s deposit as Portland General and sPower access to certain markets from 20 MW electrical generating equipment to proposed or whether the QF has applied to 5 MW. Specifically, this reporting instead require applicants to list only for system impact, interconnection or burden would arise from electric affiliated small power production QFs other needed studies are the types of utilities located in markets who choose using the same energy resource one mile factors that may show that the QF has to submit to the Commission a PURPA or less from the applicant facility. taken meaningful steps to develop the section 210(m) petition for termination • Additionally require applicants to QF that are within the QF’s control and of the PURPA mandatory purchase list affiliated small power production the type of objective and reasonable obligation (affecting information QFs using the same energy resource standards that states can consider in collection FERC–912) for small power whose nearest electrical generating their implementation.1045 production QFs between 20 MW and 5 equipment is greater than one mile and 696. Requests by parties to expand MW. less than 10 miles from the electrical utilities’ rights to curtail QF sales are 698. With respect to the FERC Form generating equipment of the applicant outside the scope of this proceeding. No. 556, the Commission affirms that facility. Additionally, requests to allow a utility the relevant burdens derive from the • Require the applicant to list the to reject purchases from QFs if a utility change from the Commission’s current geographic coordinates of the nearest has no need for additional capacity are ‘‘one-mile rule’’ for determining ‘‘electrical generating equipment’’ of outside the scope of this proceeding. whether generation facilities should be both its own facility and the affiliated V. Information Collection Statement considered to be at the same site for small power production QF in question purposes of determining qualification as 697. The Paperwork Reduction based on the definitions adopted in this 1046 a qualifying small power production final rule. Act requires each federal agency to • seek and obtain the Office of facility, to allowing an interested person Provide space for the applicant to Management and Budget’s (OMB) or other entity challenging a QF explain, if it chooses to do so, why the approval before undertaking a collection certification the opportunity to file a affiliated small power production QFs of information (including reporting, protest, without a fee, to rebut the using the same energy resource, that are record keeping, and public disclosure presumption that affiliated small power more than one mile and less than 10 requirements) directed to 10 or more production QFs using the same energy miles from the electrical generating persons or contained in a rule of general resource and located more than one equipment of the applicant facility, applicability. OMB regulations require mile and less than 10 miles from the should be considered to be at separate approval of certain information applicant facility are considered to be at sites from the applicant’s facility, collection requirements contemplated separate sites. considering the relevant physical and by proposed rules (including deletion, Specifically, as more fully explained ownership factors identified in this final revision, or implementation of new in section IV.F above, and as rule. requirements).1047 Upon approval of a demonstrated by the revised Form No. As explained in the body of this final collection of information, OMB will 556 attached to this final rule (but not rule, these changes in burden are assign an OMB control number and an published in the Federal Register or appropriate because they are necessary expiration date. Respondents subject to Code of Federal Regulations),1049 the to meet the statutory requirements the filing requirements of a rule will not Commission makes the following contained in PURPA. be penalized for failing to respond to the changes to the FERC Form No. 556 699. In this final rule, the Commission collection of information unless the which affect the burden of the is revising its regulations implementing collection of information displays a information collection: PURPA, which will affect the valid OMB control number. • Allow an interested person or other information collections for the FERC Public Reporting Burden: The entity challenging a QF certification the Form No. 556 and FERC–912. Below, Commission is revising its regulations opportunity to file a protest, without a the first table includes estimated implementing PURPA. At the Notice of fee, to an initial certification (both self- changes to the burden and cost of the Proposed Rulemaking (NOPR) stage, the certification and application for FERC Form No. 556 due to the final Commission stated the principal Commission certification) filed on or rule. As demonstrated by the table, we changes that affect information after the effective date of this final rule, believe that QFs will spend more time collection involved the FERC Form No. or to a recertification (self-recertification to identify any affiliated small power 556.1048 In response to comments or application for Commission production QFs that are less than one arguing that the NOPR proposals would recertification) that makes substantive mile, between one and 10 miles, and cause additional reporting burdens, in changes to the existing certification that more than 10 miles, apart. The this final rule we have analyzed is filed on or after the effective date of Commission expects that there will be whether there are additional this final rule. an increase due to the revisions to the incremental reporting burdens that • Require all applicants to report the Commission’s regulations, and that the result from other aspects of this final applicant facility’s geographic changes to the ‘‘one-mile rule’’ and the rule. As described further below, we coordinates, rather than only for ability to protest without a fee will find that there is one additional applications where there is no street affect self-certifications and applications potential reporting burden arising from address. for Commission certification.
1045 Portland General Comments at 15–16; sPower 1048 The change to the FERC–556 described by the and only one item per OMB Control No. can be Comments at 14–15. NOPR was submitted under a temporary interim pending OMB review at a time. The final rule is 1046 44 U.S.C. 3501–21. information collection no., FERC–556A (OMB being submitted to OMB under FERC–556. Control No. 1902–0316) because another item for 1049 1047 See 5 CFR 1320.11. The Form 556 and instructions will be FERC–556 was pending OMB review at the time available in the Commission’s eLibrary.
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FERC–556, CHANGES DUE TO FINAL RULE IN DOCKET NOS. RM19–15–000 AND AD16–16–000 1050
Increased total Annual number Increased average annual burden Increased Facility type Filing type Number of of responses Total number burden hours and hours and total annual cost per respondents per respondent of responses cost per response annual cost respondent ($) ($) ($)
(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1 = (6)
Cogeneration and Self-certification ... no change (692) .. no change (1.25) no change (865) .. no change (1.5 no change 0 Small Power Pro- hrs.); $0. (1,297.5 hrs.); duction Facility ≤ $0. 1 MW 1051. Cogeneration Facil- Self-certification ... no change (63) .... no change (1.25) no change (78.75) no change (1.5 no change 0 ity > 1 MW. hrs.); $0. (118.125 hrs.); $0. Cogeneration Facil- Application for no change (1) ...... no change (1.25) no change (1.25) no change (50 no change (62.5 0 ity > 1 MW. FERC certifi- hrs.); $0. hrs.); $0. cation. Small Power Pro- Self-certification ... no change no change (1.25) no change 2 hrs.; $166 ...... 2,247.5 hrs.; 207.5 duction Facility > (899) 1052. (1,123.75). 186,542.5. 1 MW, ≤ 1 Mile from Affiliated Small Power Pro- duction QF. Small Power Pro- Application for no change (0) ...... no change (1.25) no change (0) ...... 6 hrs.; $498 ...... no change (0 0 duction Facility > FERC certifi- hrs.); $0. 1 MW, ≤ 1 Mile cation. from Affiliated Small Power Pro- duction QF. Small Power Pro- Self-certification ... no change (900) .. no change (1.25) no change (1,125) 8 hrs.; $664 ...... 9,000 hrs.; 830 duction Facility > $747,000. 1 MW, > 1 Mile, < 10 Miles from Affiliated Small Power Produc- tion QF. Small Power Pro- Application for no change (0) ...... no change (1.25) no change (0) ...... 12 hrs.; $996 ...... no change (0 0 duction Facility > FERC certifi- hrs.); $0. 1 MW, > 1 Mile, cation. < 10 Miles from Affiliated Small Power Produc- tion QF. Small Power Pro- Self-certification ... no change (899) .. no change (1.25) no change 2 hrs.; $166 ...... 2,247.5 hrs.; 207.5 duction Facility > (1,123.75). $186,542.5. 1 MW, ≥ 10 Miles from Affiliated Small Power Pro- duction QF. Small Power Pro- Application for no change (0) ...... no change (1.25) no change (0) ...... 6 hrs.; $498 ...... no change (0 0 duction Facility > FERC certifi- hrs.); $0. 1 MW, ≥ 10 Miles cation. from Affiliated Small Power Pro- duction QF.
FERC–556, ...... no change (3,454) ...... no change ...... 13,495 hrs.; ...... Total Addi- (4,317.5). $1,120,085. tional Bur- den and Cost Due to Final Rule.
700. The table below reflects the Where ‘‘no change’’ is indicated, the current if electric utilities located in relevant additional estimated public reporting figure is included parenthetically for information markets choose to submit to the burdens associated with reducing the only. Those parenthetical figures are not included PURPA section 210(m) rebuttable in the final total for column 5. Facility > 1 MW, Self-certification,’’ we estimated Commission staff believes that the industry is the number of respondents at 2,698. We have now presumption regarding small power similarly situated in terms of wages and benefits. divided that category into three categories: ‘‘Small production QFs’ nondiscriminatory Therefore, cost estimates are based on FERC’s 2020 Power Production Facility > 1 MW, ≤ 1 Mile from access to certain markets from 20 MW average hourly wage (and benefits) of $83.00/hour. Affiliated Small Power Production QF,’’ ‘‘Small to 5 MW, which affects the FERC– (The submittal to and approval of OMB in 2019 for Power Production Facility > 1 MW, > 1 Mile, < 10 FERC Form No. 556 was based on FERC’s 2018 1053 Miles from Affiliated Small Power Production QF,’’ 912. The FERC–912 is optional, but average annual wage hourly rate of $79.00/hour. ‘‘Small Power Production Facility > 1 MW, ≥ 10 Because the change from the $79.00 hourly rate to Miles from Affiliated Small Power Production QF.’’ 1050 The figures in this table reflect estimated the current $83.00 hourly rate was not due to the In this column, the numbers 899, 900, and 899 are changes to the current OMB-approved inventory for final rule, this chart does not depict this increase.) a distribution of those same estimated 2,698 the FERC Form No. 556 (approved by the Office of 1051 Not required to file. respondents across the three categories. Management and Budget (OMB) on November 18, 1052 In the FERC Form No. 556 approved by OMB 1053 This information was not included in the 2019). in 2019, for the category ‘‘Small Power Production burden estimates in the NOPR.
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Commission a PURPA section 210(m) power production QFs between 20 MW following burdens and cost estimates to petition for termination of the PURPA and 5 MW, then we would expect the apply. mandatory purchase obligation for small FERC–912, CHANGES DUE TO FINAL RULE IN DOCKET NOS. RM19–15–000 AND AD16–16–000
Increased Annual number Increased average Increased total annual (Termination of obligation to purchase) Number of of responses Total number hours and cost annual burden hours cost per respondents per respondent of responses per response and total annual cost respondent ($) ($) (at $83/hr.)
(1) (2) (1) × (2) = (3) (4) (3) * (4) = (5) (5)/(1) = (6)
Electric utility burden of reducing 210(m) re- 30 1 30 12 hrs.; $996 ...... 360 hrs.; $29,880 ...... $996 buttable presumption from 20 MW to 5 MW 1054.
Total ...... 30 1 30 12 hrs.; $996 ...... 360 hrs.; $29,880 ...... 996
Title: FERC–556 (Certification of Please send comments concerning the consider the reasonably foreseeable Qualifying Facility (QF) Status for a collection of information and the impacts on climate and the Small Power Production or associated burden estimates to: Office of environment, including on threatened Cogeneration Facility), and FERC–912 Information and Regulatory Affairs, and endangered species, in order to (PURPA Section 210(m) Notification Office of Management and Budget fulfill its responsibilities under NEPA Requirements Applicable to [Attention: Federal Energy Regulatory and the Endangered Species Act Cogeneration and Small Power Commission Desk Officer]. Due to (ESA).1059 Biological Diversity includes Production Facilities). security concerns, comments should be a list of what it alleges are reasonably Action: Revisions to existing sent directly to www.reginfo.gov/public/ foreseeable impacts from increased use information collections FERC–556 and do/PRAMain. Comments submitted to of ‘‘fossil gas.’’ 1060 Biological Diversity FERC–912. OMB should be sent within 30 days of maintains that the proposed revised OMB Control No.: 1902–0075 (FERC– publication of this notice in the Federal PURPA Regulations would prevent 556) and 1902–0237 (FERC–912). Register and should refer to FERC–556 renewable energy development and lock Respondents: Facilities that are self- (OMB Control No. 1902–0075) and in ‘‘fossil gas’’ development and supply, certifying their status as a cogenerator or FERC–912 (OMB Control No. 1902– thereby requiring the Commission to small power producer or that are 0237). prepare an environmental impact submitting an application for statement and to obtain a biological VI. Environmental Analysis Commission certification of their status opinion before proceeding to a final as a cogenerator or small power 702. The Commission in the NOPR rule.1061 producer; electric utilities filing to explained that it was not possible to 705. NIPPC, CREA, REC, and OSEIA terminate their obligation to purchase, determine the environmental effects of state that ‘‘the Commission must, at a at avoided cost rates, the output of small the changes proposed, given the minimum, complete the requisite power production QFs between 5 MW numerous uncertainties regarding the scoping and other process associated and 20 MW. potential effects of the changes with an EA and then revise and reissue, Frequency of Information: Ongoing. proposed. The Commission in the NOPR or abandon, the NOPR after considering Necessity of Information: The stated that, given these uncertainties, the issues developed in the EA.’’ 1062 Commission directs the changes in this the National Environmental Policy Act NIPPC, CREA, REC, and OSEIA argue final rule revising its implementation of of 1969 (NEPA) 1055 does not require that it would not be too speculative for PURPA in order to continue to meet that the Commission conduct an the Commission to undertake a NEPA PURPA’s statutory requirements. environmental review of the proposed analysis.1063 NIPPC, CREA, REC, and Internal Review: The Commission has revised PURPA Regulations.1056 OSEIA state that it is possible to study reviewed the changes and has A. Comments the environmental effects of the NOPR determined that such changes are proposals because the Commission necessary. These requirements conform 703. Several commenters argue that undertook a NEPA analysis when it first to the Commission’s need for efficient the Commission erred in failing to implemented PURPA, imposing a 1057 information collection, communication, conduct such a review. moratorium on certifying cogeneration and management within the energy 704. Biological Diversity asserts an facilities as QFs until it completed an industry. urgent need to take measures to reduce greenhouse gas emissions to address 701. Interested persons may obtain 1059 Id. at 14. 1058 information on the reporting climate change. Biological Diversity 1060 Id. at 15–17. requirements by contacting the Federal states that the Commission’s rationale 1061 Id. at 17. Energy Regulatory Commission, 888 for revising the PURPA Regulations, 1062 NIPPC, CREA, REC, and OSEIA Comments at First Street NE, Washington, DC 20426 namely the increased availability of 83–85 (citing, e.g., 42 U.S.C. 4332(A); 18 CFR 380.5, ‘‘fossil gas,’’ requires the Commission to 380.4, 380.11; 40 CFR 1500.1, 1502.5; LaFlamme v. [Attention: Ellen Brown, Office of the FERC, 852 F.2d 389, 397 (9th Cir. 1988); Am. Bird Executive Director], by email to Conservancy, Inc. v. FCC, 516 F.3d 1027, 1033–34 1055 [email protected] or by phone 42 U.S.C. 4321 et seq. (D.C. Cir. 2008); N. Plains Res. Council, Inc. v. 1056 NOPR, 169 FERC ¶ 61,184 at PP 154–55. Surface Transp. Bd., 668 F.3d 1067, 1075 (9th Cir. (202) 502–8663]. 1057 Allco Comments at 21–22; Biological 2011) (N. Plains Res. Council)). Diversity Comments at 14; NIPPC, CREA, REC, and 1063 NIPPC, CREA, REC, and OSEIA Comments at 1054 The staff estimates a total of 90 discretionary OSEIA Comments at 83; Public Interest 92–94 (citing, e.g., Am. Bird Conservancy, Inc. v. responses may be submitted in Years 1–3, with an Organizations Comments at 21. FCC, 516 F.3d 1033); N. Plains Res. Council, 668 annual average of 30. 1058 Biological Diversity Comments at 2–7. F.3d at 1076, 1078–79.
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Environmental Impact Statement (EIS) such endangerment to the climate from a categorical exclusion applies.1077 and recognizing the environmental fossil fuel use and reduced renewable Additionally, courts have held that an benefits from encouraging the energy QF generation, according to EIS or EA is not required under NEPA development of QFs, and also studied Allco, include mass extinction of ‘‘unless there is a particular project that the environmental impacts for Order species, in violation of the ESA.1071 ‘define[s] fairly precisely the scope and No. 888.1064 Allco contends that the Commission’s limits of the proposed 706. Public Interest Organizations failure to consult with the U.S. Fish and development.’ ’’ 1078 state that the Commission must prepare Wildlife Service and the National 711. No EA or EIS of the final rule is an Environmental Assessment (EA) in Marine Fisheries Service (collectively, required because, as discussed below, order to support its position that this the Services) prior to issuing the NOPR the final rule does not propose or rulemaking may not have any constituted a violation of its obligations authorize, much less define, the scope significant foreseeable environmental under the ESA, ‘‘to insure that its and limits of any potential energy impacts.1065 Public Interest actions are not likely to jeopardize the infrastructure and, as a result, there is Organizations describe the NOPR’s continued existence of endangered or no way to determine whether issuance ‘‘cursory treatment of the Commission’s threatened species, or result in the of the rule will significantly affect the environmental review obligations’’ as destruction or adverse modification of quality of the human environment. In undermining NEPA’s purposes ‘‘that critical habitat.’’ 1072 the alternative, a categorical exclusion agencies give due consideration to applies so that an EA or EIS need not 709. According to Allco, the PURPA environmental impacts when making be prepared. For similar reasons, there NOPR triggered the ESA’s consultation major environmental decisions, and is no requirement that the Commission requirement because the proposed guaranteeing that the public is informed engage in consultation pursuant to the changes will increase fossil fuel of such impacts.’’ 1066 Public Interest ESA with respect to this action. generation that will, in turn, displace Organizations argue that states’ exercise ‘‘over 2 [terawatts (TWs)] of solar 1. No EIS or EA Is Required of new flexibility granted by the proposed revised PURPA Regulations generation over the next 20 years as a. There Is No Project That Defines the are reasonably foreseeable indirect and compared to the baseline scenario of Scope and Limits of QF Development cumulative impacts that the application and faithful adherence to existing PURPA rules.’’ 1073 Allco 712. In Center for Biological Diversity, Commission must study. Public Interest the court held that no NEPA review was Organizations assert that the alleges that increased fossil-fuel generation will ‘‘increase land and required with respect to actions taken Commission likely will ‘‘need to by the United States Forest Service that prepare a full EIS to evaluate the serious ocean temperatures above what they would have been, . . . resulting in were similar in all relevant respects to environmental impacts that will result the action taken here by the from dismantling regulations that increased pollution to the waters of the United States, and harming federally Commission in promulgating the final continue to play an important role in rule. That case involved the designation development of renewable generation endangered and threatened species, including, without limitation, the by the Forest Service, pursuant to the resources across the country.’’ 1067 Healthy Forests Restoration Act (HFRA), Piping plover and the Right whale.’’ 1074 707. NIPPC, CREA, REC, and OSEIA of certain forests as ‘‘landscape-scale argue that the Commission has failed to B. Commission Determination areas.’’ Such designation meant that explain how eliminating the market for specific treatments could be proposed to at least 10% to 20% of renewable energy 710. We find that no EA or EIS of the address insect infestation in those facilities would have no impact on the final rule is required. NEPA requires designated ‘‘landscape-scale areas.’’ 1079 human environment.1068 NIPPC, CREA, federal agencies to prepare a detailed The court held that no NEPA review REC, and OSEIA contend that the statement on the environmental impact was required for the designations, Commission has failed to analyze how of ‘‘major Federal actions significantly noting that no specific projects were the proposals would impact regions like affecting the quality of the human proposed for any of the landscape-scale 1075 the Northwest that lack robust environment.’’ The Council on areas and stating that ‘‘[i]n such implementation of PURPA, the 21 states Environmental Quality’s (CEQ) circumstances, ‘any attempt to produce without renewable power standards regulations implementing NEPA an [EIS] would be little more than a (such as the Idaho, whose Legislature provide that federal agencies can study . . . containing estimates of affirmatively refused to adopt a comply with NEPA by preparing: (a) An potential development and attendant renewable power standard), or the one Environmental Impact Statement (EIS); environmental consequences.’ ’’ 1080 The third of the country that is not located or (b) an Environmental Assessment court concluded that ‘‘unless there is a in an RTO or ISO.1069 (EA) to determine whether the proposed particular project that ‘define[s] fairly 708. Allco argues that it is reasonably action significantly affects the quality of foreseeable that the proposed revisions the human environment and requires 1077 CEQ regulations state that a categorical to the PURPA Regulations and resulting the preparation of an EIS.1076 CEQ exclusion ‘‘means a category of actions which do increased fossil fuels use could add regulations also state that federal not individually or cumulatively have a significant significant levels of greenhouse gas effect on the human environment and which have agencies are not obligated to prepare been found to have no such effect in procedures emissions to the atmosphere and either an EIS or an EA if they find that adopted by a federal agency in implementation of endanger the climate.1070 The effects of these regulations and for which, therefore, neither
1071 an environmental assessment nor an environmental Id. impact statement is required.’’ 40 CFR 1508.4 1064 Id. at 94–96. 1072 Id. at 34 (quoting 16 U.S.C. 1536(a)(2)) (2019). 1065 Public Interest Organizations Comments at (internal quotations omitted). 1078 Center for Biological Diversity v. Ilano, 928 21. 1073 Id. F.3d 774, 780 (9th Cir. 2019) (Center for Biological 1066 Id. 1074 Id. at 34–35. Diversity) (quoting Kleppe v. Sierra Club, 427 U.S. 1067 Id. at 26. 1075 42 U.S.C. 4332(C) (2018); see also Regulations 390, 402 (1976)). 1068 NIPPC, CREA, REC, and OSEIA Comments at Implementing the National Environmental Policy 1079 Center for Biological Diversity, 928 F.3d at 86–87. Act, Order No. 486, FERC Stats. & Regs. ¶ 30,783 778. 1069 Id. at 87–88. (1987) (cross-referenced at 41 FERC ¶ 61,284). 1080 Id. at 780 (quoting Kleppe v. Sierra Club, 427 1070 Allco Comments at 31. 1076 40 CFR 1501.4 (2019). U.S. 390, 402 (1976)).
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precisely the scope and limits of the inquiry.’’ 1083 Further, an agency ‘‘is not final rule by necessity would involve proposed development of the region,’ required to engage in speculative nothing less than hypothesizing the there can be ‘no factual predicate for the analysis’’ or ‘‘to do the impractical, if potential development of QFs and the production of an [EIS] of the type not enough information is available to resultant environmental consequences. envisioned by NEPA.’ ’’ 1081 permit meaningful consideration’’ 1084 Indeed, any attempt by the Commission 713. Similarly, here, the final rule or to ‘‘foresee the unforeseeable.’’ 1085 In to estimate the potential environmental does not authorize the development or that vein, ‘‘[i]n determining what effects effects of the final rule would be construction of any facilities, but simply are ‘reasonably foreseeable,’ an agency considerably more speculative than the addresses the rates that QFs can charge must engage in ‘reasonable forecasting estimates of potential development and and certain requirements under which and speculation,’ . . . with reasonable attendant environmental consequences proposed facilities may qualify as a being the operative word.’’ 1086 that the court in Center for Biological QF.1082 The final rule does not fund any Environmental impacts are not Diversity held are not required under particular QFs, or issue permits for their reasonably foreseeable if the impacts NEPA. That case involved limited zones construction or operation (neither of would result only through a lengthy in which some projects to treat insect which the Commission has jurisdiction causal chain of highly uncertain or infestation almost certainly would be to do). The Commission does not, in its unknowable events.1087 proposed. Here, it simply is not possible regulations or in this final rule, 717. Commenters’ allegations to provide any reasonable forecast of the authorize or prohibit the use of any regarding potentially reduced QF effects of the final rule on future QF particular technology or fuel, nor does development hinge on the claim that the development, whether any affected it mandate or prohibit where QFs NOPR proposed to ‘‘repeal’’ or potential QF would be a renewable should be or are built. This final rule ‘‘eliminate’’ critical PURPA Regulations, resource (such as solar or wind) or does not exempt QFs from any Federal, which is not true. The Commission employ carbon-emitting technology state, or local environmental, siting, or proposed in the NOPR, which this final (e.g., a fossil-fuel-burning cogenerator or similar laws or regulatory requirements, rule generally affirms, to clarify some a waste-coal-burning small power (again something the Commission has existing PURPA regulations and modify production facility). Moreover, no authority to do). other PURPA Regulations to make them environmental effects on land use, 714. Even with respect to rates, while consistent with the statute, based on vegetation, water quality, etc. are all the Commission has established and changed circumstances since the time dependent on location, which are here revises the factors and approaches those regulations originally were unknown and could be anywhere in the that states can take into account when promulgated. Any consideration of United States. they set QF rates, it is ultimately the whether the revised rules could 719. Because, even more so than in states and not the Commission that set potentially result in significant new Center for Biological Diversity, the final those rates. The final rule continues to environmental impacts due to less QF rule does not authorize, or define any give states wide discretion and it is development and increased limit on the scope of, any potential QF impossible to know what the states may development of coal, nuclear, and or other infrastructure development, any choose to do in response to this final combined cycle natural gas plants, attempt to prepare an analysis of the rule, whether they will make changes in would be highly speculative, based on potential effects of the final rule on their current practices or not, and how the difficulty in determining which future QF development would be so those state choices would impact QF additional flexibilities the final rule speculative as to render meaningless development and the environment in provides to the states that each state will any environmental analysis of these any particular state, let along any adopt, if any; how such state rules impacts. Therefore, no such analysis is particular locale. would impact QF development going required by NEPA. 715. Moreover, the scope of this final forward; and whether any reduction in b. A Categorical Exclusion Applies rule is even less defined than the QF renewables would be replaced by 720. There is a separate and landscape-scale area designations at the much greater amount of non-QF independent alternative reason why no issue in the Center for Biological renewable resources with similar environmental analysis is warranted: Diversity case. PURPA applies environmental characteristics.1088 the final rule falls within a categorical throughout the entire United States, and 718. As was the case in Center for exclusion promulgated by the the revisions implemented by the final Biological Diversity, any attempt to Commission pursuant to the CEQ’s rule theoretically could affect future QF evaluate the environmental effects of the development anywhere in the country. NEPA regulations.1089 Specifically, the final rule falls within the categorical 716. While courts have held that 1083 Vt. Yankee Nuclear Power Corp. v. Nat. Res. NEPA requires ‘‘reasonable forecasting,’’ Def. Council, Inc., 435 U.S. 519, 534 (1978) (quoting exclusion for rules that: (1) Are ‘‘NEPA does not require a ‘crystal ball’ Nat. Res. Def. Council, Inc. v. Morton, 458 F.2d 827, clarifying in nature, (2) are corrective in 837 (D.C. Cir. 1972)). nature, (3) are procedural in nature, or 1084 1081 Id. (quoting Kleppe, 427 U.S. at 402); see also N. Plains Res. Council v. Surface Transp. (4) do not substantially change the effect Northcoast Environmental Center v. Glickman, 136 Board, 668 F.3d 1067, 1078–79 (9th Cir. 2011) 1090 (citation omitted). of the regulation being amended. F.3d 660, 668 (9th Cir. 1998) (citing Kleppe in Here, each of the revisions to the support of its holding that NEPA does not require 1085 Concerned About Trident v. Rumsfeld, 555 agency to complete environmental analysis where F.2d 817, 830 (D.C. Cir. 1976) (citation omitted). PURPA Regulations implemented by the environmental effects are speculative or 1086 Sierra Club v. U.S. Dep’t of Energy, 867 F.3d hypothetical). 189, 198 (D.C. Cir. 2017) (emphasis in original) 1089 CEQ regulations provide that agencies shall 1082 See Sugarloaf Citizens Ass’n v. FERC, 959 (citation omitted). issue procedures that provide specific criteria for F.2d 508, 514 n.29 (4th Cir. 1992) (finding that in 1087 See Dep’t of Transp. v. Pub. Citizen, 541 U.S. classes of action which ‘‘normally do not require the QF certification context ‘‘FERC does little more 752, 767 (2004) (‘‘NEPA requires a ‘reasonably close either an environmental impact statement or an than regulate the rates paid by utilities to the causal relationship’ between the environmental environmental assessment (categorical exclusion)’’. qualifying facility and does not control the effect and the alleged cause.’’); Metro. Edison Co. v. 40 CFR 1507.3 (2019). financing, construction or operation of the project. People Against Nuclear Energy, 460 U.S. 766, 774 1090 See 18 CFR 380.4(a)(2)(ii) (categorical Although the Facility receives an economic benefit, (1983) (noting effects may not fall within section exclusion applies to ‘‘promulgation of rules that are no direct federal funding or other substantial 102 of NEPA because ‘‘the causal chain is too clarifying, corrective, or procedural, or that do not federal assistance is provided, and no licensing attenuated’’). substantially change the effect of . . . regulations action is involved.’’). 1088 See infra VI.B.2. being amended.’’).
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final rule fits into one of these final rule are required to ensure understanding of the mechanics of categories: continued future compliance of the market participation. This PURPA Regulations with PURPA, based determination has rendered inaccurate i. Changes That Are Clarifying in Nature on the changed circumstances found by the presumption currently reflected in 721. Several of the changes to the the Commission in this final rule. the PURPA Regulations that QFs 20 MW PURPA Regulations are clarifying in 723. Three aspects of the final rule are and below do not have non- nature. These include the changes corrective in nature. The first is the discriminatory access to the relevant clarifying how market prices can be change allowing states to require markets. Once the Commission made used to set as-available energy rates,1091 variable energy rates in QF this determination, it was appropriate the changes clarifying how fixed energy contracts.1098 As the Commission for the Commission to update the 20 rates in contracts or LEOs may be explains above, this change is required MW threshold to comply with the determined,1092 and the changes based on the Commission’s finding that, requirements of PURPA section clarifying how competitive solicitations contrary to the Commission’s 210(m).1103 can be used to set avoided cost rates.1093 expectation in 1980, there have been i. Changes That Are Procedural in Other non-rate related clarifying numerous instances where Nature revisions in the final rule include a overestimates and underestimates of clarification regarding the relationship energy avoided costs used in fixed 727. The remaining two revisions between avoided costs and decreases in energy rate contracts have not balanced implemented by the final rule are a purchasing utility’s load as a out, causing the contract rate to not procedural in nature. The first is a consequence of retail competition,1094 a violate the statutory avoided cost rate revision to the procedures that apply to clarification as to how electric cap. Giving states the ability to require QF certification.1104 The second is a generating equipment should be defined energy rates in QF contracts to vary revision to the Commission’s Form 556, for purposes of determining whether based on the purchasing utility’s used by QFs seeking certification.1105 small power production facilities are avoided cost of energy at the time of 2. The NEPA Analysis for Promulgation located at the same site,1095 and a delivery ensures that QF rates do not of the Original PURPA Regulations in clarification as to when a LEO is exceed the avoided cost rate cap 1096 1980 Cannot Be Replicated Here established. imposed by PURPA.1099 724. The second corrective aspect is 728. As commenters note, in 1980 the ii. Changes That Are Corrective in Commission conducted an EA and later Nature the change in the PURPA Regulations regarding the determination of what an EIS for its initial rules implementing 722. The Commission interprets the facilities are located at the same site for PURPA. Initially, the Commission found categorical exclusion for changes to its (and the Final EIS also found) that new purposes of complying with the regulations that are corrective in nature diesel cogeneration, and dual-fuel statutory 80 MW limit on small power as including changes needed in order to cogeneration particularly, in New York production facilities located at the same ensure that a regulation conforms to the City, could cause significant site.1100 As explained above, the requirements of the statutory provisions environmental effects on air quality.1106 Commission found, based on changed being implemented by the In Order No. 70–E, however, the circumstances, that the current one-mile regulation.1097 To be clear, the Commission ultimately opted to treat rule is inadequate to determine which Commission does not find that its such cogeneration the same as all other facilities are located at the same site. existing PURPA Regulations were cogeneration given, among other things, Based on this finding, the Commission inconsistent with the statutory that the PURPA Regulations were not requirements of PURPA when was obligated by PURPA to revise its the driving force behind the definition of when facilities are located promulgated. Rather, the Commission 1101 development of such cogeneration in finds that the changes adopted in this at the same site. New York City.1107 In doing so, the 725. The third corrective aspect of the Commission emphasized that QF status final rule relates to the implementation 1091 See Sections IV.B.2–5. was not a license nor a permit to operate of PURPA section 210(m). That statutory 1092 See Section IV.B.6. but instead only entitled the QF to a rate 1093 provision allows purchasing utilities to See Section IV.B.8. for purchases and to certain exemptions 1094 terminate their obligation to purchase See Section IV.C. from regulation. Moreover, QFs were 1095 from QFs that have nondiscriminatory See Section IV.D.2. not exempted from any Federal, state, or 1096 See Section IV.H. access to certain statutorily-defined local environmental, siting or other 1097 For example, the Commission relied on this markets, which the Commission has similar requirements.1108 categorical exclusion when it revised the PURPA determined to be the RTO/ISO markets. Regulations in 2006 to comply with the amendments to PURPA enacted as part of EPAct The final rule revises the presumption 1103 Id. 2005. See Revised Regulations Governing Small in the PURPA Regulations that QFs with 1104 See Section IV.E. Power Production and Cogeneration Facilities, a capacity of 20 MW or less do not have 1105 See Section IV.F Order No. 671, 114 FERC ¶ 61,102 at P 118. Further, non-discriminatory access to such 1106 Final EIS at I–7a. this interpretation is also consistent with the 1107 Supreme Court’s holding that NEPA review is not markets, reducing the threshold for such See Order No. 70–E, 46 FR 33025, 33026 required when an agency’s action is required by presumption to 5 MW.1102 (June 18, 1981). statute. See Dep’t of Transp. v. Pub. Citizen, 541 726. The Commission has determined 1108 Id. The Commission stated in its EA that: U.S. 752, 770 (2004) (‘‘where an agency has no in the final rule that, since the 20 MW The rules provide encouragement to the ability to prevent a certain effect due to its limited development of certain types of facilities. They do statutory authority over the relevant actions, the threshold was established in 2005, the not prevent any facility which does not qualify from agency cannot be considered a legally relevant RTO/ISO markets have matured and the using cogeneration or small power production, or ‘‘cause’’ of the effect [and] . . . under NEPA and the industry has developed a better from using any type of fuel. The rules merely grant implementing CEQ regulations, the agency need not or deny certain benefits to certain facilities. consider these effects in its EA.’’); see also Safari In this environmental assessment, the 1098 See Section IV.B.7. Club Intern. v. Jewell, 960 F.Supp.2d 17, 79–80 environmental effects of these rules are limited to 1099 (D.D.C. 2013) (relying on Dep’t of Transp. v. Pub. Id. the effects resulting from the construction and/or Citizen to hold that NEPA review is not required 1100 See Section IV.D. operation of facilities which occur as a result of the for an agency rule issued to comply with a statutory 1101 See Section IV.D.1.c. granting of these benefits, or from changes in the requirement). 1102 See Section IV.G.1. operating characteristics of existing facilities which
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729. The original PURPA EA for the than those used to supply the loads of renewables has declined so much that pre-existing PURPA Regulations was the owners rather than to sell at in some regions renewables are the most based on a market penetration study of wholesale) had been constructed. By cost effective new generation technology PURPA-induced facilities. In order to contrast, today QF generation available.1116 Thus, even if the final rule carry out that market penetration study, technologies and other independent was to result in reduced renewable QF the original PURPA EA had to make the generation facilities are common, and development, there is little likelihood simplifying assumption that the mere they are predominantly built and today that hypothetical, unbuilt QFs implementation of PURPA would operated outside of PURPA.1113 necessarily would be replaced by new necessarily result in the development 732. Because there was virtually no conventional fossil fuel generation. and operation of certain types of QF or independent power development 735. Alternatively, in the absence of generation facilities that would not in 1980, the original PURPA EA could these hypothetical, unbuilt QFs, existing otherwise be developed.1109 Based on reasonably project that the incentives generation units—whose current these types of facilities, that EA created by PURPA and the original emissions, if any, would already be part identified specific resource conflicts PURPA Regulations would lead to of the baseline for any environmental related to each type of facility, which increased development of power analysis of the impacts of the final were nothing more than a generalized generated by QF technologies. The rule—might continue to operate without listing of potential impacts.1110 That EA market penetration study conducted by any change in their emissions; in sum, found that, because the various types of the Commission, and the Commission’s in the absence of these hypothetical, facilities operate differently, there conclusion that the PURPA Regulations unbuilt QFs, emissions would remain at would be no cumulative impacts and could lead to an increase in diesel-fired the baseline and might not increase at this finding, coupled with the cogeneration in New York City, were all. Indeed, in the current environment geographic distribution of facility based on these projections. where stagnant load growth has development from the market 733. By contrast, it is not possible prevailed in recent years, this would penetration study, resulted in a finding here to make simplifying assumptions seem to be a more likely scenario than of no significant impact for all types of that the mere implementation of the an alternative where these hypothetical, facilities except diesel and dual-fueled revised regulations necessarily would unbuilt QFs are replaced by brand new cogeneration facilities in the Mid- result in specific changes in the fossil fuel generation that would Atlantic, which that EA found could development of particular generation increase emissions over the baseline. cause significant environmental impacts technologies compared to the status 736. Given these facts, it would not be on air quality.1111 quo. First, the revisions to the PURPA possible to perform a market penetration 730. Subsequently, an EIS was regulations are premised on a finding study of the effects of the final rule that prepared that addressed only air quality that, even after the revisions, the would not be wholly speculative. in New York City and the broader Mid- PURPA regulations will continue to Without such a study, there could be no Atlantic region. The bulk of the EIS encourage QFs. Consequently, there is analysis defining the types and focused on how national, state, and no way to estimate whether any geographic location of facilities that local air pollution regimes would reduction in QF development, as could serve as the basis for any NEPA address air quality surrounding the opposed to the status quo, will be analysis similar to that performed in construction and operation of such focused on one or more of the many 1980. 1112 facilities. different types of QF technologies, some 731. Several commenters cite to this 3. This Proceeding Does Not Trigger of which are renewable resources and previous NEPA analysis conducted in Any ESA Consultation Requirement some of which are fueled by fossil connection with the original PURPA fuels 1114 and have emissions 737. Similar to our finding that it Regulations to support their assertion comparable to non-QF fossil fueled would be nearly impossible to conduct that a NEPA analysis similarly should generators. Moreover, because the rule a meaningful NEPA review, we disagree be possible for this rulemaking. primarily increases state flexibility in with Biological Diversity and Allco that However, those assertions are setting QF rates, including giving states either the PURPA NOPR or this final undermined by the fact that the option of not changing their current rule trigger any consultation circumstances have changed rate-setting approaches, there is no way requirement under the ESA. significantly since the promulgation of to develop any estimate of the location The ESA requires that agencies the original PURPA Regulations in 1980. consult with the Secretary of the Interior Prior to 1980, essentially no QF or size of any hypothetical reduction in QF development. or the Secretary of Commerce to ‘‘insure generation technologies or other that any action authorized, funded, or independent generation facilities (other 734. In addition, as mentioned above, renewable generation technologies carried out by such agency . . . is not likely to jeopardize the continued results from the granting of these benefits. If a today are commonly, and even cogeneration or small power production facility predominantly, built and operated existence of any endangered species or would be constructed or operated without the outside of PURPA. Current projections threatened species or result in the incentives of these rules, the environmental effects show that most new generation destruction or adverse modification of resulting therefrom cannot properly be described as [critical] habitat of such species.’’ 1117 environmental effects of these rules. However, a construction will be of renewable technical and environmental discussion of each resources.1115 Indeed, the cost of 738. The ESA regulations require technology is provided whether or not its use is consultation only if the Commission expected to be encouraged by these rules. 1113 See supra P 240. determines that a proposed action may Small Power Production and Cogeneration 1114 This would include both cogeneration, which affect listed species or critical Facilities—Environmental Findings; No Significant typically is fossil fueled, and those small power habitat.1118 We find that there are no Impact and Notice of Intent To Prepare production facilities that are fueled by waste, which Environmental Impact Statement, 45 FR 23661, would include a range of fossil fuel-based waste. 23664 (Apr. 8, 1980) (Original PURPA EA). See 18 CFR 292.202(b), 292.204(b)(1). (Annual Energy Outlook 2020), https:// 1109 Id. at 23,665. 1115 EIA, Annual Energy Outlook 2020, at tbl. 9 www.eia.gov/outlooks/aeo/. 1110 Id. at 23,675–82. (Jan. 29, 2020) (in table see rows labeled 1116 See supra P 240. 1111 Id. at 23,679, 23,682–83. Cumulative Planned Additions and Cumulative 1117 16 U.S.C. 1536(a)(2). 1112 Order No. 70–E, 46 FR at 33026. Unplanned Additions in the reference case) 1118 50 CFR 402.14(a).
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effects from the final rule for which the such harm is completely speculative, that the proposed rule would not Commission could consult with the but also because it could result only significantly impact a substantial Services. Under the ESA regulations, as through a lengthy causal chain of highly number of small entities. Some recently revised, the effects of an uncertain or unknowable events, none commenters argue otherwise.1128 agency’s action are of which are within the Commission’s 744. The Small Business all consequences to listed species and critical authority to authorize or preclude: (1) Administration’s (SBA) Office of Size habitat that are caused by the proposed That the final rule causes a reduction in Standards develops the numerical action. A consequence is caused by the the aggregate amount of QF capacity definition of a small business.1129 The proposed action if it would not occur but for constructed in the future; (2) that any SBA size standard for electric utilities is the proposed action and it is reasonably reduction in renewable resource QFs based on the number of employees, 1119 certain to occur. would not be offset by increased including affiliates.1130 Under SBA’s The ESA regulations also state that a construction of renewable resources current size standards, the threshold for consequence is not considered to be outside of PURPA, resulting from either a small entity (including its affiliates) is caused by a proposed action if ‘‘[t]he other incentive programs or simply the 250 employees for cogeneration and consequence is only reached through a increased cost-competitiveness of such small power production applicants in lengthy causal chain that involves so resources; (3) that construction of such the following NAICS 1131 categories: many steps as to make the consequence non-QF renewable resources would • yield an increase in carbon emissions NAICS code 221114 for Solar Electric not reasonably certain to occur.’’ 1120 Power Generation This determination must be made resulting from the reduction in • NAICS code 221115 for Wind Electric ‘‘based on clear and substantial renewable resource QFs that is not offset Power Generation information,’’ 1121 and ‘‘should not be by other renewable resources; and (4) • based on speculation or conjecture.’’ 1122 that such increase in carbon emissions NAICS code 221116 for Geothermal In addition to the above, the same ESA would have an adverse effect on Electric Power Generation regulation states that factors for the endangered and threatened species. • NAICS code 221117 for Biomass agency to consider when determining Furthermore, the consequences of this Electric Power Generation rule would be remote in time and whether a consequence is not caused by • geographically remote because it would NAICS code 221118 for Other Electric the proposed agency action include: ‘‘(1) require action by individual generators, Power Generation The consequence is so remote in time QF or non-QF, to propose, site, permit, from the action under consultation that The threshold for a small entity construct, and operate a facility, in it is not reasonably certain to occur; or (including its affiliates) is 500 underdetermined locations potentially (2) [t]he consequence is so employees for NAICS code 221111 for anywhere in the United States. In geographically remote from the Hydroelectric Power Generation. addition, many of these generators, QF immediate area involved in the action 745. This rule directly affects and non-QF, would be subject to state that it is not reasonably certain to qualifying small power production approval and permitting requirements occur[.]’’ 1123 facilities and cogeneration facilities, the over which the Commission has no 739. Because the NOPR was a majority of which the Commission control. proposed rule that in and of itself had estimates are small businesses. With 742. Further, there is no support in respect to the changes related to the no legal effect, the NOPR is not an the record for Allco’s claim that the agency ‘‘action’’ under the regulations Form No. 556 and new protests allowed changes proposed in the PURPA NOPR pursuant to this rule, as reflected in the implementing the ESA, which define would displace over 2 TWs of solar agency action as the ‘‘the promulgation burden and cost estimates provided generation over the next 20 years.1125 of regulations.’’ 1124 above, the Commission does not Because the NOPR Allco provides no citation or other did not constitute agency action, the anticipate that any additional reporting support whatsoever for this assertion burden or cost imposed on QFs, Commission was not required to engage but simply makes the claim with no in consultation under the ESA prior to regardless of their status as a small or elaboration. We find that such large business, would be significant. the NOPR’s issuance. speculation or conjecture provides no 740. In this final rule, we are Those revisions may result in additional basis upon which to either initiate or information being submitted by some promulgating regulations, which does conduct any meaningful consultation constitute agency action. Nevertheless, small power production QF applicants with the Services on the impacts to (especially those with affiliated small for the same reasons that an endangered species from this final rule. environmental review of the impacts of power production qualifying facilities this final rule under NEPA would be VII. Regulatory Flexibility Act using the same energy resource located impossible to conduct, there is similarly Certification over one and less than 10 miles away). no basis to conclude that harm to 743. The Regulatory Flexibility Act of The Commission estimates that less than 10 percent of QF applications and endangered species is reasonably certain 1980 (RFA) 1126 generally requires a self-certifications meet these criteria. to occur as a result of this final rule. description and analysis of rules that 741. We find that the effects on will have significant economic impact endangered and threatened species on a substantial number of small 1128 See Allco Comments at 33. alleged by Allco are not reasonably entities. In lieu of preparing a regulatory 1129 13 CFR 121.101. certain to occur, not only because any flexibility analysis, an agency may 1130 SBA final rule on ‘‘Small Business Size Standards: Utilities,’’ 78 FR 77343 (Dec. 23, 2013). certify that a rule will not have a 1131 1119 50 CFR 402.2 (emphasis added). The North American Industry Classification significant economic impact on a System (NAICS) is an industry classification system 1120 50 CFR 402.17(b)(3) (emphasis added). substantial number of small entities.1127 that Federal statistical agencies use to categorize 1121 Id. The Commission in the NOPR stated businesses for the purpose of collecting, analyzing, 1122 Endangered and Threatened Wildlife and and publishing statistical data related to the U.S. Plants; Regulations for Interagency Cooperation, 84 economy. United States Census Bureau, North FR 44976, 44993 (Aug. 27, 2019). 1125 Allco Comments at 34. American Industry Classification System, https:// 1123 50 CFR 402.17(b). 1126 5 U.S.C. 601–12. www.census.gov/eos/www/naics/ (accessed April 1124 50 CFR 402.2 (emphasis added). 1127 5 U.S.C. 605(b). 11, 2018).
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746. In the final analysis, the other ensure the Commission’s regulations Commission has suspended access to changes in this final rule 1132 largely continue to meet PURPA’s statutory the Commission’s Public Reference impact payments to QFs by electric requirements. For example, allowing Room due to the President’s March 13, utilities. More accurate avoided cost states to use competitive prices may 2020 proclamation declaring a National rates may result in lower payments from benefit small QFs inasmuch as the rate- Emergency concerning the Novel certain electric utilities to certain QFs. setting process for purchases of energy Coronavirus Disease (COVID–19). In this regard, the final rule provides from these entities would be more 751. From the Commission’s Home states greater flexibility than they have straightforward and efficient than the Page on the internet, this information is today to set the rate that electric utilities administrative processes currently in available on eLibrary. The full text of will pay QFs, but there is no way to use. Furthermore, providing flexibility this document is available on eLibrary know in advance which new flexibility in setting energy rates may result in in PDF and Microsoft Word format for state regulatory authorities and state entities approving longer duration viewing, printing, and/or downloading. nonregulated electric utilities will contracts for capacity (at fixed rates) and To access this document in eLibrary, exercise, or what impact that new energy. The impacts of these changes, type the docket number excluding the flexibility might have given the different therefore, are reasonable alternatives to last three digits of this document in the circumstances likely to apply to each the status quo while adhering to the docket number field. determination of avoided cost. Under requirements of PURPA. 752. User assistance is available for the final rule, additionally, states also 748. This final rule establishes a eLibrary and the Commission’s website have the discretion to continue setting rebuttable presumption that a qualifying during normal business hours from the the rate as they do today and not to small power production facility whose Commission’s Online Support at 202– adopt the Commission’ proposed greater electrical generating equipment is more 502–6652 (toll free at 1–866–208–3676) rate flexibilities. Therefore, it is not than one but less than 10 miles from or email at [email protected], possible to estimate what the dollar affiliated electrical generating or the Public Reference Room at (202) impact might be. However, because of equipment using the same energy 502–8371, TTY (202)502–8659. Email the way PURPA is structured, whatever resource is at a separate site. The the Public Reference Room at the potential dollar impacts of these Commission finds that this rebuttable changes on small QFs may be, to the presumption imposes a lower burden [email protected]. extent that they reduce the amounts than imposing a rule that any affiliated IX. Effective Dates and Congressional paid to certain QFs, such reductions electrical generating equipment less Notification could be matched dollar-for-dollar by than 10 miles apart is presumed to be savings experienced by purchasing at the same site. Similarly, the 753. These regulations are effective electric utilities, which should be Commission, while removing the December 31, 2020. The Commission flowed through to their retail ratepayers, rebuttable presumption that qualifying has determined, with the concurrence of some of whom would also tend to small power production facilities more the Administrator of the Office of qualify as small entities.1133 than 5 MW but under 20 MW lack Information and Regulatory Affairs of 747. While Allco argues that the nondiscriminatory access, has provided OMB, that this rule is not a ‘‘major rule’’ Commission should have attempted to factors that such facilities could use to as defined in section 351 of the Small minimize the impacts on small demonstrate lack of such access— Business Regulatory Enforcement renewable energy producers and allowing them to retain the mandatory Fairness Act of 1996. This final rule is consider alternative structures, the fact purchase obligation. The Commission being submitted to the Senate, House, is that these offsetting impacts result estimates that annual additional Government Accountability Office, and from changes that are necessary to compliance costs on industry (detailed Small Business Administration. above) will be approximately $1,149,965 List of Subjects in 18 CFR Part 292 1132 I.e., use of locational marginal prices, (or an average additional burden and competitive market price, and use of forecasted cost per response, of 3.187 hrs. and the Electric power plants; Electric stream of market revenues for energy rate utilities, Reporting and recordkeeping component of QF contracts or legally enforceable corresponding $264.51) to comply with obligations; use of variable energy rates in QF these requirements.1134 requirements. contracts or legally enforceable obligations; use of 749. Accordingly, pursuant to section competitive solicitations to set avoided energy and List of Subjects in 18 CFR Part 375 capacity rates; reducing the PURPA section 210(m) 605(b) of the RFA, the Commission rebuttable presumption regarding access to markets certifies that this rule will not have a Authority delegations (Government from 20 MW to 5 MW; and the commercial viability significant economic impact on a agencies); Seals and insignia; Sunshine and financial commitment to construct substantial number of small entities. Act. demonstration necessary to obtaining a legally enforceable obligation. VIII. Document Availability By the Commission. Commissioner 1133 While this potential beneficial impact on Glick is dissenting in part with a retail ratepayers would be an indirect impact of this 750. In addition to publishing the full separate statement attached. final rule, the Small Business Administration Office text of this document in the Federal of Advocacy encourages such indirect costs to be Register, the Commission provides all Issued: July 16, 2020. analyzed as well: ‘‘Although it is not required by Nathaniel J. Davis, Sr., the RFA, the Office of Advocacy believes that it is interested persons an opportunity to good public policy for the agency to perform a view and/or print the contents of this Deputy Secretary. regulatory flexibility analysis even when the document via the internet through the In consideration of the foregoing, the impacts of its regulation are indirect.’’ SBA, Office Commission’s Home Page (http:// of Advocacy, A Guide for Government Agencies: Commission amends parts 292 and 375, How to Comply with the Regulatory Flexibility Act www.ferc.gov). At this time, the chapter I, title 18, Code of Federal at 23 (Aug. 2017), https://www.sba.gov/sites/ Regulations, as follows. default/files/advocacy/How-to-Comply-with-the- 1134 Annual additional cost of $1,149,965 RFA-WEB.pdf. But see Mid-Tex Elec. Co-op., Inc. v. [($1,120,085 for FERC–556) + (29,880 for FERC– SUBCHAPTER K—REGULATIONS FERC, 773 F.2d 327, 343 (D.C. Cir. 1985) (‘‘Congress 912)] and average additional burden of 13,855 hours did not intend to require that every agency consider [(13,495 hrs. for FERC–556) + (360 hrs. for FERC– UNDER THE PUBLIC UTILITY every indirect effect that any regulation might have 912)] divided by the number of affected responses REGULATORY POLICIES ACT OF 1978 on small businesses in any stratum of the national of 4,347.5 [(4,317.5 for FERC–556) + (30 responses economy.’’). for FERC–912)]. * * * * *
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PART 292—REGULATIONS UNDER affiliated small power production ■ a. Revising paragraphs (a), (b) SECTIONS 201 AND 210 OF THE qualifying facilities that use the same intructory text, (b)(2), (c), and (d); PUBLIC UTILITY REGULATORY energy resource and are located one ■ b. Adding paragraphs (e) and (f). POLICIES ACT OF 1978 WITH REGARD mile or less from the facility for which The revisions and additions read as TO SMALL POWER PRODUCTION AND qualification or recertification is sought follows: COGENERATION are located at the same site as the facility for which qualification or § 292.207 Procedures for obtaining ■ 1. The authority citation for part 292 recertification is sought. qualifying status. continues to read as follows: (B) For purposes of this paragraph (a) Self-certification. (1) FERC Form Authority: 16 U.S.C. 791a–825r, 2601– (a)(2), for facilities for which No. 556. The qualifying facility status of 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. qualification or recertification is filed on an existing or a proposed facility that or after December 31, 2020 there is an meets the requirements of § 292.203 ■ 2. Amend § 292.101 by adding irrebuttable presumption that affiliated may be self-certified by the owner or paragraphs (b)(12) through (16) to read small power production qualifying operator of the facility or its as follows: facilities that use the same energy representative by properly completing a § 292.101 Definitions. resource and are located 10 miles or FERC Form No. 556 and filing that form more from the facility for which with the Commission, pursuant to * * * * * qualification or recertification is sought (12) Locational marginal price means § 131.80 of this chapter, and complying are located at separate sites from the the price for energy at a particular with paragraph (e) of this section. facility for which qualification or location as determined in a market (2) Factors. For small power recertification is sought. defined in § 292.309(e), (f), or (g). production facilities pursuant to (C) For purposes of this paragraph (13) Competitive Price means a Market § 292.204, the owner or operator of the (a)(2), for facilities for which Hub Price or a Combined Cycle Price. facility or its representative may, when qualification or recertification is filed on (14) Market Hub Price means a price completing the FERC Form No. 556, or after December 31, 2020, there is a for as-delivered energy determined provide information asserting factors rebuttable presumption that affiliated pursuant to § 292.304(b)(7)(i). showing that the facility for which (15) Combined Cycle Price means a small power production qualifying qualification or recertification is sought price for as-delivered energy determined facilities that use the same energy is at a separate site from other facilities pursuant to § 292.304(b)(7)(ii). resource and are located more than one using the same energy resource and (16) Competitive Solicitation Price mile and less than 10 miles from the owned by the same person(s) or its means a price for energy and/or capacity facility for which qualification or affiliates. determined pursuant to § 292.304(b)(8). recertification is sought are located at (3) Commission action. Self- separate sites from the facility for which ■ certification and self-recertification are 3. Amend § 292.202 by adding qualification or recertification is sought. paragraph (t) to read as follows: effective upon filing. If no protests to a (D) For hydroelectric facilities, self-certification or self-recertification § 292.202 Definitions. facilities are considered to be located at are timely filed pursuant to paragraph * * * * * the same site as the facility for which (c) of this section, no further action by (t) Electrical generating equipment qualification or recertification is sought the Commission is required for a self- means all boilers, heat recovery steam if they are located within one mile of certification or self-recertification to be generators, prime movers (any the facility for which qualification or effective. If protests to a self- mechanical equipment driving an recertification is sought and use water certification or self-recertification are electric generator), electrical generators, from the same impoundment for power timely filed pursuant to paragraph (c) of photovoltaic solar panels, inverters, fuel generation. this section, a self-certification or self- (ii) For purposes of making the cell equipment and/or other primary recertification will remain effective determinations in paragraph (a)(2)(i), power generation equipment used in the until the Commission issues an order the distance between two facilities shall facility, excluding equipment for revoking QF certification. The be measured from the edge of the closest gathering energy to be used in the Commission will act on the protest electrical generating equipment for facility. within 90 days from the date the protest which qualification or recertification is ■ is filed; provided that, if the 4. Amend § 292.204 by revising sought to the edge of the nearest paragraph (a) to read as follows: Commission requests more information electrical generating equipment of the from the protester, the entity seeking § 292.204 Criteria for qualifying small other affiliated small power production qualification or recertification, or both, power production facilities. qualifying facility using the same energy the time for the Commission to act will (a) Size of the facility—(1) Maximum resource. be extended to 60 days from the filing size. Except as provided in paragraph (3) Waiver. The Commission may of a complete answer to the information (a)(4) of this section, the power modify the application of paragraph request. In addition to any extension production capacity of a facility for (a)(2) of this section, for good cause. resulting from a request for information, which qualification is sought, together (4) Exception. Facilities meeting the the Commission also may toll the 90- with the power production capacity of criteria in section 3(17)(E) of the Federal day period for one additional 60-day any other small power production Power Act (16 U.S.C. 796(17)(E)) have period if so required to rule on a protest. qualifying facilities that use the same no maximum size, and the power Authority to toll the 90-day period for energy resource, are owned by the same production capacity of such facilities this purpose is delegated to the person(s) or its affiliates, and are located shall be excluded from consideration Secretary or the Secretary’s designee. at the same site, may not exceed 80 when determining the size of other Absent Commission action before the megawatts. small power production facilities less expiration of the tolling period, a protest (2) Method of calculation. (i)(A) For than 10 miles from such facilities. will be deemed denied, and the self- purposes of this paragraph (a)(2), there * * * * * certification or self-recertification will is an irrebuttable presumption that ■ 5. Amend § 292.207 by: remain effective.
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(b) Optional procedure—Commission circumstances that call into question the certified or self-recertified qualifying certification. *** continued validity of the certification. facility if it finds that the self-certified (2) General contents of application. (d) Response to protests. Any or self-recertified qualifying facility The application must include a properly response to a protest must be filed on does not meet the applicable completed FERC Form No. 556 pursuant or before 30 days from the date of filing requirements for qualifying facilities. to § 131.80 of this chapter. For small of that protest and will be allowed (2) Prior to undertaking any under § 385.213(a)(2) of this chapter. power production facilities pursuant to substantial alteration or modification of (e) Notice requirements. (1) General. § 292.204, the owner or operator of the a qualifying facility which has been An applicant filing a self-certification, certified under paragraph (b) of this facility or its representative may, when self-recertification, application for completing the FERC Form No. 556, section, a small power producer or Commission certification or application cogenerator may apply to the provide information asserting factors for Commission recertification of the showing that the facility for which Commission for a determination that the qualifying status of its facility must proposed alteration or modification will qualification is sought is at a separate concurrently serve a copy of such filing site from other facilities using the same not result in a revocation of qualifying on each electric utility with which it status. This application for Commission energy resource and owned by the same expects to interconnect, transmit or sell person(s) or its affiliates. recertification of qualifying status electric energy to, or purchase should be submitted in accordance with * * * * * supplementary, standby, back-up or paragraph (b) of this section. (c) Protests and Interventions. (1) maintenance power from, and the State ■ 6. Amend § 292.304 by: Filing a Protest. Any person, as defined regulatory authority of each state where ■ a. Adding paragraph (b)(6) through in § 385.102(d) of this chapter, who the facility and each affected electric (8); and opposes either a self-certification or self- utility is located. The Commission will ■ b. Revising paragraphs (d) and (e). recertification making substantive publish a notice in the Federal Register The additions and revisions read as changes to the existing certification filed for each application for Commission follows: pursuant to paragraph (a) of this section certification and for each self- or an application for Commission certification of a cogeneration facility § 292.304 Rates for purchases. certification or Commission that is subject to the requirements of * * * * * recertification making substantive § 292.205(d). (b) Relationship to avoided costs. changes to the existing certification filed (2) Facilities of 500 kW or more. An *** pursuant to paragraph (b) of this section electric utility is not required to (6) Locational Marginal Price. There is for which qualification or recertification purchase electric energy from a facility a rebuttable presumption that a state is filed on or after December 31, 2020, with a net power production capacity of regulatory authority or nonregulated may file a protest with the Commission. 500 kW or more until 90 days after the electric utility may use a Locational Any protest to and any intervention in facility notifies the facility that it is a Marginal Price as a rate for as-available a self-certification or self-recertification qualifying facility or 90 days after the qualifying facility energy sales to must be filed in accordance with utility meets the notice requirements in electric utilities located in a market §§ 385.211 and 385.214 of this chapter, paragraph (c)(1) of this section. defined in § 292.309(e), (f), or (g). (f) Revocation of qualifying status. on or before 30 days from the date the (7) Competitive Price. A state (1)(i) If a qualifying facility fails to self-certification or self-recertification is regulatory authority or nonregulated conform with any material facts or filed. Any protestor must concurrently electric utility may use a Competitive representations presented by the serve a copy of such filing pursuant to Price as a rate for as-available qualifying cogenerator or small power producer in § 385.211 of this chapter. Any protest facility energy sales to electric utilities its submittals to the Commission, the must be adequately supported, and located outside a market defined in notice of self-certification or provide any supporting documents, § 292.309(e), (f), or (g). A Competitive Commission order certifying the contracts, or affidavits to substantiate Price may be either a Market Hub Price qualifying status of the facility may no the claims in the protest. or a Combined Cycle Price, determined longer be relied upon. At that point, if as follows: (2) Limitations on protest. Protests the facility continues to conform to the (i) A Market Hub Price is a price may be filed to any initial self- Commission’s qualifying criteria under established at a liquid market hub certification or application for this part, the cogenerator or small power which a state regulatory authority or Commission certification filed on or producer may file either a notice of self- nonregulated electric utility determines after the effective date of this final rule, recertification of qualifying status represents an appropriate measure of and to any self-recertification or pursuant to the requirements of the electric utility’s avoided cost for as- application for Commission paragraph (a) of this section, or an available energy, and is a hub to which recertification that are filed on or after application for Commission the electric utility has reasonable access, December 31, 2020 that makes recertification pursuant to the based on an evaluation by the state substantive changes to the existing requirements of paragraph (b) of this regulatory authority or nonregulated certification. Once the Commission has section, as appropriate. electric utility of the relevant factors, certified an applicant’s qualifying (ii) The Commission may, on its own including but not limited to the facility status either in response to a motion or on the motion of any person, following: protest opposing a self-certification or revoke the qualifying status of a facility (A) Whether the hub is sufficiently self-recertification, or in response to an that has been certified under paragraph liquid that prices at the hub represent a application for Commission certification (b) of this section, if the facility fails to competitive price; or Commission recertification, any later conform to any of the Commission’s (B) Whether prices developed at the protest to a self-recertification or qualifying facility criteria under this hub are sufficiently transparent; application for Commission part. (C) Whether the electric utility has the recertification making substantive (iii) The Commission may, on its own ability to deliver power from such hub changes to a qualifying facility’s motion or on the motion of any person, to its load, even if its load is not directly certification must demonstrate changed revoke the qualifying status of a self- connected to the hub; and
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(D) Whether the hub represents an capacity needs, taking into account the (2) Notwithstanding paragraph appropriate market to derive an energy required operating characteristics of the (d)(1)(ii)(B) of this section, a state price for the electric utility’s purchases needed capacity; regulatory authority or nonregulated from the relevant qualifying facility (C) Solicitations are conducted at electric utility may require that rates for given the electric utility’s physical regular intervals; purchases of energy from a qualifying proximity to the hub or other factors. (D) Solicitations are subject to facility pursuant to a legally enforceable (ii) A Combined Cycle Price is a price oversight by an independent obligation vary through the life of the determined pursuant to a formula administrator; and obligation, and be set at the electric established by a state regulatory (E) Solicitations are certified as utility’s avoided cost for energy authority or nonregulated electric utility fulfilling the above criteria by the calculated at the time of delivery. using published natural gas price relevant state regulatory authority or (3) Obtaining a legally enforceable indices, a proxy heat rate, and variable nonregulated electric utility through a obligation. A qualifying facility must operations and maintenance costs for an post-solicitation report. demonstrate commercial viability and efficient natural gas combined-cycle (ii) To the extent that the electric financial commitment to construct its generating facility. Before establishing utility procures all of its capacity, facility pursuant to criteria determined such a formula rate, a state regulatory including capacity resources by the state regulatory authority or authority or nonregulated electric utility constructed or otherwise acquired by nonregulated electric utility as a must determine that the resulting the electric utility, through a prerequisite to a qualifying facility Combined Cycle Price represents an competitive solicitation process obtaining a legally enforceable appropriate measure of the purchasing conducted pursuant to paragraph obligation. Such criteria must be electric utility’s avoided cost for energy, (b)(8)(i) of this section, the electric objective and reasonable. based on its evaluation of the relevant utility shall be presumed to have no (e) Factors affecting rates for factors, including but not limited to the avoided capacity costs unless and until purchases. (1) A state regulatory following: it determines to acquire capacity outside authority or nonregulated electric utility of such competitive solicitation process. may establish rates for purchases of (A) Whether the cost of energy from However, the electric utility shall an efficient natural gas combined cycle energy from a qualifying facility based nevertheless be required to purchase on a purchasing electric utility’s generating facility represents a energy from qualifying small power reasonable measure of a competitive locational marginal price calculated by producers and qualifying cogeneration the applicable market defined in price in the purchasing electric utility’s facilities. region; § 292.309(e), (f), or (g), or the purchasing (iii) To the extent that the electric electric utility’s applicable Competitive (B) Whether natural gas priced utility does not procure all of its pursuant to particular proposed natural Price. Alternatively, a state regulatory capacity through a competitive authority or nonregulated electric utility gas price indices would be available in solicitation process conducted pursuant the relevant market; may establish rates for purchases of to paragraph (b)(8)(i) of this section, energy and/or capacity from a qualifying (C) Whether there should be an then there shall be no presumption that adjustment to the natural gas price to facility based on a Competitive the electric utility has no avoided Solicitation Price. To the extent that appropriately reflect the cost of capacity costs. transporting natural gas to the relevant capacity rates are not set pursuant to market; and * * * * * this section, capacity rates shall be set (d) Purchases ‘‘as available’’ or (D) Whether the proxy heat rate used pursuant to subsection (2). pursuant to a legally enforceable in the formula should be updated (2) To the extent that a state obligation. (1) Each qualifying facility regularly to reflect improvements in regulatory authority or nonregulated shall have the option either: generation technology. electric utility does not set energy and/ (i) To provide energy as the qualifying (8) Competitive Solicitation Price. (i) or capacity rates pursuant to paragraph facility determines such energy to be A state regulatory authority or (e)(1) of this section, the following available for such purchases, in which nonregulated electric utility may use a factors shall, to the extent practicable, case the rates for such purchases shall price determined pursuant to a be taken into account in determining be based on the electric utility’s avoided competitive solicitation process to rates for purchases from a qualifying cost for energy calculated at the time of establish qualifying facility energy and/ facility: delivery; or (i) The data provided pursuant to or capacity rates for sales to electric (ii) To provide energy or capacity § 292.302(b), (c), or (d), including State utilities, provided that such competitive pursuant to a legally enforceable review of any such data; solicitation process is conducted obligation for the delivery of energy or (ii) The availability of capacity or pursuant to procedures ensuring the capacity over a specified term, in which energy from a qualifying facility during solicitation is conducted in a case the rates for such purchases shall, the system daily and seasonal peak transparent and non-discriminatory except as provided in paragraph (d)(2) periods, including: manner including, but not limited to, of this section, be based on either: (A) The ability of the electric utility the following: (A) The avoided costs calculated at to dispatch the qualifying facility; (A) The solicitation process is an open the time of delivery; or (B) The expected or demonstrated and transparent process that includes, (B) The avoided costs calculated at reliability of the qualifying facility; but is not limited to, providing equally the time the obligation is incurred. (C) The terms of any contract or other to all potential bidders substantial and (iii) The rate for delivery of energy legally enforceable obligation, including meaningful information regarding calculated at the time the obligation is the duration of the obligation, transmission constraints, levels of incurred may be based on estimates of termination notice requirement and congestion, and interconnections, the present value of the stream of sanctions for non-compliance; subject to appropriate confidentiality revenue flows of future locational (D) The extent to which scheduled safeguards; marginal prices, or Competitive Prices outages of the qualifying facility can be (B) Solicitations are open to all during the anticipated period of usefully coordinated with scheduled sources, to satisfy that electric utility’s delivery. outages of the electric utility’s facilities;
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(E) The usefulness of energy and have access to the market in light of the standards set forth in capacity supplied from a qualifying consideration of other factors, § 292.204(a)(2). facility during system emergencies, including, but not limited to: (e) Midcontinent Independent System including its ability to separate its load (i) Specific barriers to connecting to Operator, Inc. (MISO), PJM from its generation; the interstate transmission grid, such as Interconnection, L.L.C. (PJM), ISO New (F) The individual and aggregate excessively high costs and pancaked England Inc. (ISO–NE), and New York value of energy and capacity from delivery rates; Independent System Operator, Inc. qualifying facilities on the electric (ii) Unique circumstances impacting (NYISO) qualify as markets described in utility’s system; and the time or length of interconnection paragraphs (a)(1)(i) and (ii) of this (G) The smaller capacity increments studies or queues to process the small section, and there is a rebuttable and the shorter lead times available power production facility’s presumption that small power with additions of capacity from interconnection request; production facilities with a capacity qualifying facilities; and (iii) A lack of affiliation with entities greater than 5 megawatts and (iii) The relationship of the that participate in the markets in cogeneration facilities with a capacity availability of energy or capacity from paragraphs (a)(1), (2), and (3) of this greater than 20 megawatts have the qualifying facility as derived in section; nondiscriminatory access to those paragraph (e)(2)(ii) of this section, to the (iv) The qualifying small power markets through Commission-approved ability of the electric utility to avoid production facility has a predominant open access transmission tariffs and costs, including the deferral of capacity purpose other than selling electricity interconnection rules, and that electric additions and the reduction of fossil and should be treated similarly to utilities that are members of such fuel use; and qualifying cogeneration facilities; regional transmission organizations or (iv) The costs or savings resulting (v) The qualifying small power independent system operators (RTO/ from variations in line losses from those production facility has certain ISOs) should be relieved of the that would have existed in the absence operational characteristics that obligation to purchase electric energy of purchases from a qualifying facility, effectively prevent the qualifying from the qualifying facilities. A if the purchasing electric utility facility’s participation in a market; or qualifying facility may seek to rebut this generated an equivalent amount of (vi) The qualifying small power presumption by demonstrating, inter energy itself or purchased an equivalent production facility lacks access to alia, that: amount of electric energy or capacity. markets due to transmission constraints. (1) The qualifying facility has certain * * * * * The qualifying small power production operational characteristics that ■ 7. Amend § 292.309 by revising facility may show that it is located in an effectively prevent the qualifying paragraphs (c), (d), (e), and (f) to read as area where persistent transmission facility’s participation in a market; or follows: constraints in effect cause the qualifying (2) The qualifying facility lacks access facility not to have access to markets to markets due to transmission § 292.309 Termination of obligation to outside a persistently congested area to constraints. The qualifying facility may purchase from qualifying facilities. sell the qualifying facility output or show that it is located in an area where * * * * * capacity. persistent transmission constraints in (c) For purposes of paragraphs (a)(1), (d)(1) For purposes of paragraphs effect cause the qualifying facility not to (2) and (3) of this section, with the (a)(1), (2), and (3) of this section, there have access to markets outside a exception of paragraph (d) of this is a rebuttable presumption that a persistently congested area to sell the section, there is a rebuttable qualifying cogeneration facility with a qualifying facility output or capacity. presumption that a qualifying facility capacity at or below 20 megawatts does (f) The Electric Reliability Council of has nondiscriminatory access to the not have nondiscriminatory access to Texas (ERCOT) qualifies as a market market if it is eligible for service under the market. described in paragraph (a)(3) of this a Commission-approved open access (2) For purposes of paragraphs (a)(1), section, and there is a rebuttable transmission tariff or Commission-filed (2), and (3) of this section, there is a presumption that small power reciprocity tariff, and Commission- rebuttable presumption that a qualifying production facilities with a capacity approved interconnection rules. small power production facility with a greater than five megawatts and (1) If the Commission determines that capacity at or below 5 megawatts does cogeneration facilities with a capacity a market meets the criteria of paragraphs not have nondiscriminatory access to greater than 20 megawatts have (a)(1), (2) or (3) of this section, and if a the market. nondiscriminatory access to that market qualifying facility in the relevant market (3) Nothing in paragraphs (d)(1) through Public Utility Commission of is eligible for service under a through (3) of this section affects the Texas (PUCT) approved open access Commission-approved open access rights the rights or remedies of any party protocols, and that electric utilities that transmission tariff or Commission-filed under any contract or obligation, in operate within ERCOT should be reciprocity tariff, a qualifying facility effect or pending approval before the relieved of the obligation to purchase may seek to rebut the presumption of appropriate State regulatory authority or electric energy from the qualifying access to the market by demonstrating, non-regulated electric utility on or facilities. A qualifying facility may seek inter alia, that it does not have access before December 31, 2020, to purchase to rebut this presumption by to the market because of operational electric energy or capacity from or to demonstrating, inter alia, that: characteristics or transmission sell electric energy or capacity to a small (1) The qualifying facility has certain constraints. power production facility between 5 operational characteristics that (2) For purposes of paragraphs (a)(1), megawatts and 20 megawatts under this effectively prevent the qualifying (2), and (3) of this section, a qualifying Act (including the right to recover costs facility’s participation in a market; or small power production facility with a of purchasing electric energy or (2) The qualifying facility lacks access capacity between 5 megawatts and 20 capacity). to markets due to transmission megawatts may additionally seek to (4) For purposes of implementing constraints. The qualifying facility may rebut the presumption of access to the paragraphs (d)(1) and (2) of this section, show that it is located in an area where market by demonstrating that it does not the Commission will not be bound by persistent transmission constraints in
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effect cause the qualifying facility not to PART 375—THE COMMISSION § 375.302 Delegations to the Secretary. have access to markets outside a * * * * * ■ persistently congested area to sell the 8. The authority citation for part 375 (v) Toll the time for action on requests qualifying facility output or capacity. continues to read as follows: for rehearing, and toll the time for * * * * * Authority: 5 U.S.C. 551–557; 15 U.S.C. action on protested self-certifications 717–717w, 3301–3432; 16 U.S.C. 791–825r, and self-recertifications of qualifying 2601–2645; 42 U.S.C. 7101–7352. facilities. ■ 9. Amend § 375.302 by revising The following will not appear in the paragraph (v) to read as follows: Code of Federal Regulations.
UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION
Docket Nos.
Qualifying Facility Rates and Requirements ...... RM19–15–000 Implementation Issues Under the Public Utility Regulatory Policies Act of 1978 ...... AD16–16–000
(Issued July 16, 2020) ‘‘modernizing’’ our administration of Act of 2005, Congress amended PURPA, GLICK, Commissioner, dissenting in part: PURPA. The Energy Policy Act of 2005 leaving in place the law’s basic gave the Commission the authority to framework, while adding a series of 1. I dissent in part from today’s final excuse utilities from their obligations 1 provisions that allowed the Commission rule (Final Rule ) because it effectively under PURPA where QFs have non- to excuse utilities from its requirements guts the Commission’s implementation discriminatory access to competitive in regions of the country with of the Public Utility Regulatory Policies wholesale markets.5 Had we pursued 2 sufficiently competitive wholesale Act (PURPA). The Commission’s basic reforms based on those provisions, energy markets.8 And while Congress responsibilities under PURPA are three- rather than gutting our longstanding considered numerous proposals to fold: (1) To encourage the development regulations, I believe we could have further reform the law, it never saw fit of qualifying facilities (QFs); (2) to reached a durable, consensus solution to act on them.9 Against that prevent discrimination against QFs by that would ultimately have done more background, I could not support my incumbent utilities; and (3) to ensure for all interested parties, even those that colleagues’ willingness to ‘‘remove[ ] an that the resulting rates paid by may celebrate the immediate effects of important debate from the halls of electricity customers remain just and this Final Rule. Congress and isolate[] it within the reasonable, in the public interest, and Commission.’’ 10 Whatever your do not exceed the incremental costs to I. PURPA’s Continuing Relevance Is an position on PURPA—and I recognize the utility of alternative energy.3 I do Issue for Congress To Decide views vary widely—‘‘what should not believe that today’s Final Rule 3. This proceeding began with a bang. concern all of us is that resolving these satisfies those responsibilities. Instead, My colleagues championed the the Final Rule raises as many questions sorts of questions by regulatory edict proposed rule as a ‘‘truly significant’’ rather than congressional legislation is as it answers, not least of which is the action that would fundamentally long-term legal viability of an approach neither a durable nor desirable approach overhaul the Commission’s for developing energy policy.’’ 11 that does so little to encourage QF implementation of PURPA.6 And so it development. 5. Today’s Final Rule retreats from was. The NOPR proposed to alter almost much of the original rationale used to 2. Although I have concerns about every significant aspect of the many of the individual changes support the NOPR, but the effect is the Commission’s PURPA regulations, same: The Commission is imposed by the Final Rule,4 I remain, on thereby transforming the foundation on a broader level, dismayed that the administratively gutting PURPA. Make which the Commission had carried out no mistake, although the Commission Commission is attempting to its statutory responsibility to accomplish via administrative fiat what has dropped much of the NOPR ‘‘encourage’’ the development of QFs. preamble’s opening screed against Congress has repeatedly declined to do 4. I dissented from the NOPR in large PURPA’s continuing relevance, this via legislation. I am especially part because I believe that it is not the Final Rule is a full-throated disappointed because Congress Commission’s role to sit in judgment of endorsement of the conclusion that expressly provided the Commission a duly enacted statute and determine PURPA has outlived its usefulness. And with a different avenue for whether it has outlived its usefulness. As I explained, ‘‘almost from the while walking back the argument that 1 Qualifying Facility Rates and Requirements moment PURPA was passed, Congress PURPA is antiquated may reduce the Implementation Issues Under the Public Utility risk that this Final Rule is overturned on Regulatory Policies Act of 1978, Order No. 872, 172 began to hear many of the arguments being used today to justify scaling the appeal, that does not change the fact FERC ¶ 61,041 (2020) (Final Rule). that today’s Final Rule usurps what 2 Public Law 95–617, 92 Stat. 3117 (1978). law back.’’ 7 Congress, however, has 3 See 16 U.S.C. 824a–3(a)–(b) (2018). seen fit to significantly amend PURPA should be Congress’s proper role. 4 Notwithstanding those concerns, I support only once in its more-than-forty-year 6. Throughout this proceeding, the certain aspects of this Final Rule. First and lifespan. As part of the Energy Policy Commission has been quick to point to foremost, I agree with the update to the ‘‘one-mile’’ Congress’s directive to from time to time rule, which prior to today provided an irrebuttable presumption that resources located more than one 5 Public Law 109–58, 1253, 119 Stat. 594 (2005). 8 mile apart are separate QFs. In addition, I support 6 Sept. 2019 Commission Meeting Tr. at 8. Public Law 109–58, 1253, 119 Stat. 594 (2005). 9 requiring that QFs demonstrate commercial 7 Qualifying Facility Rates and Requirements See Solar Energy Industries Association (SEIA) viability before securing a legally enforceable Implementation Issues Under the Public Utility Comments at 11. obligation with the relevant utility. Finally, I also Regulatory Policies Act of 1978, Notice of Proposed 10 NOPR, 168 FERC ¶ 61,184 (Glick, Comm’r, support the revision to allow stakeholders to protest Rulemaking, 168 FERC ¶ 61,184 (2019) (NOPR) dissenting in part at P 4). a QF’s self-certification. (Glick, Comm’r, dissenting in part at P 3). 11 Id.
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amend our regulations implementing i. Elimination of Fixed Energy Rate integrated utilities that are guaranteed to 12 PURPA. This Final Rule, however, is 9. Prior to today’s Final Rule, a QF recover the costs of their prudently a wholesale overhaul of the generally had two options for selling its incurred investments through retail 20 Commission’s PURPA regulations that output to a utility. Under the first rates. reflects a deep skepticism of the need option, the QF could sell its energy on 11. If anything, the record before us for the law we are charged with an as-available basis and receive an confirms the continuing importance of implementing. I doubt that is what avoided cost rate calculated at the time fixed-price contracts. Numerous entities Congress had in mind when it gave us of delivery. This is generally known as with experience financing and responsibility for periodically updating the as-available option. Under the developing QFs explain that a fixed our implementing regulations. second option, a QF could enter into a revenue stream of some sort is necessary to obtain the financing needed to II. The Commission’s Proposed Reforms fixed-duration contract at an avoided develop a new QF.21 The fixed revenue Are Inconsistent With Our Statutory cost rate that was fixed either at the time stream is particularly important because Mandate the QF established a legally enforceable obligation (LEO) or at the time of QFs are overwhelmingly developed 7. PURPA directs the Commission to delivery. This is generally known as the outside of the organized markets, adopt such regulations as are ‘‘necessary contract option. The ability to choose meaning that developers cannot to encourage’’ QFs,13 including by between both types of sale options necessarily obtain hedging contracts to establishing rates for sales by QFs that played an important role in fostering the create the revenue predictability needed are just and reasonable and by ensuring development of a variety of QFs. For to obtain financing.22 And that is why that such rates ‘‘shall not discriminate’’ example, the as-available option the Final Rule’s parade of statistics against QFs.14 As explained below, provided a way for QFs whose principal about the growth of renewables misses many of the changes adopted by the business was not generating electricity, the point.23 It is true that, primarily in Commission in the Final Rule fail to such as industrial cogeneration meet that standard. In addition, many of facilities, to monetize their excess 20 See, e.g., ELCON Comments at 21–22 (‘‘More varible avoided cost rates will result in unintended the reforms are unsupported—or, in electricity generation. The contract consequences that result in less competitive many cases, contradicted—by the option, by contrast, provided QFs who conditions and may leave consumers worse off, as evidence in the record.15 Accordingly, I were principally in the business of utility self-builds do not face the same market risk believe today’s Final Rule is not just generating electricity, such as small exposure. Pushing more market risk to QFs while renewable electricity generators, a stable utility assets remain insulated from markets creates poor public policy, but also arbitrary an investment risk asymmetry. This puts QFs at a and capricious agency action. option that would allow them to secure competitive disadvantage’’); South Carolina Solar financing. Together, the presence of Business Association Comments at 8 (‘‘[A]s- A. Avoided Cost these two options allowed the available rates for QFs in vertically-integrated states Commission to satisfy its statutory therefore discriminate against QFs by requiring QFs 8. The Final Rule adopts two to enter into contracts at substantially and fundamental changes to how QF rates mandate to encourage the development unjustifiably different terms than incumbent are determined. First, and most of QFs and ensured that the rates they utilities.’’); Southern Environmental Law Center Supplement Comments, Docket No. AD16–16–000, importantly, it eliminates the received were non-discriminatory. 10. The Final Rule eliminates the at 6–8 (Oct. 17, 2018) (explaining that vertically requirement that a utility must afford a requirement that states provide a integrated utilities in Indiana, Alabama, Virginia QF the option to enter a contract at a and Tennessee only offer short-term rates to QFs); contract option that includes a fixed rate for energy that is either fixed for the sPower Comments at 13; see also Statement of energy rate.18 Travis Kavulla, Docket No. AD16–16–000, at 2 (June duration of the contract or determined Prior to this proceeding, the Commission recognized time and 29, 2016). at the outset—e.g., based on a forward 21 again that fixed-price contracts play an See, e.g., SEIA Comments at 29; North Carolina curve reflecting estimated prices over Attorney General’s Office Comments at 5; Con Ed essential role in the financing of QF the term of the contract.16 Second, it Development Comments at 3; South Carolina Solar facilities, making them a necessary Business Association Comments at 6; sPower presumptively allows states to set the element of any effort to encourage QF Comments at 11; Resources for the Future rate for as-available energy at the development, at least in certain regions Comments at 6–7. relevant locational marginal price (LMP) 22 of the country.19 In addition, fixed-price See, e.g., SEIA Comments at 29–30 (‘‘As both or a similarly ‘‘competitive market Mr. Shem and Mr. McConnell explain, financial contracts have helped prevent price.’’ 17 The record in this proceeding hedge products are not available outside of ISO/ discrimination against QFs by ensuring RTO markets.’’); Resources for the Future does not support either of those that they are not structurally Comments at 6–7 (‘‘[W]hile hedge products do changes. support wind and solar project financing, they disadvantaged relative to vertically would not be suited for most QF projects. To hedge energy prices, wind projects have used three 12 Final Rule, 172 FERC ¶ 61,041 at PP 24, 48, 54, 18 Id. P 253. products: bank hedges, synthetic power purchase 67, 296, 628; NOPR, 168 FERC ¶ 61,184 at PP 4, 16, 19 agreements (synthetic PPAs), and proxy revenue 29, 155. See, e.g., Small Power Production and Cogeneration Facilities; Regulations Implementing swaps .... From U.S. project data for 2017 and 13 A QF is a cogeneration facility or a small power Section 210 of the Public Utility Regulatory Policies 2018, the smallest wind project securing such a production facility. See 18 CFR 292.101(b)(1) Act of 1978, Order No. 69, FERC Stats. & Regs. hedge was 78 MW, and most projects were well (2019). ¶ 30,128, at 30,880, order on reh’g sub nom. Order over 100 MW. Additionally, as hedges rely on 14 16 U.S.C. 824a–3(a)–(b). No. 69–A, FERC Stats. & Regs. ¶ 30,160 (1980), aff’d wholesale market access and liquid electricity 15 Genuine Parts Co. v. EPA, 890 F.3d 304, 312 in part vacated in part, Am. Elec. Power Serv. Corp. trading, all of the projects were in ISO regions.’’) (D.C. Cir. 2018) (‘‘[A]n agency cannot ignore v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev’d in (emphasis added). evidence that undercuts its judgment; and it may part sub nom. Am. Paper Inst. v. Am. Elec. Power 23 Harvard Electricity Law Comments at 22 not minimize such evidence without adequate Serv. Corp., 461 U.S. 402 (1983). (justifying the rule (referring to a similar statistical parade in the NOPR explanation.’’) (citations omitted); id. (‘‘Conclusory on the basis of ‘‘the need for certainty with regard and observing that ‘‘[a]ll [the Commission] can explanations for matters involving a central factual to return on investment in new technologies’’); actually conclude from this loosely connected array dispute where there is considerable evidence in NOPR, 168 FERC ¶ 61,184 at P 63 (‘‘The of facts, data, and speculation is that some non-QF conflict do not suffice to meet the deferential Commission’s justification for allowing QFs to fix generators are developed with variable-rate energy standards of our review.’’ (quoting Int’l Union, their rate at the time of the LEO for the entire term contracts. That unremarkable conclusion has no United Mine Workers v. Mine Safety & Health of a contract was that fixing the rate provides bearing on whether repeal will discourage QF Admin., 626 F.3d 84, 94 (D.C. Cir. 2010)). certainty necessary for the QF to obtain development by ‘materially affect[ing] the ability of 16 Final Rule, 172 FERC ¶ 61,041 at P 253. financing.’’); Windham Solar LLC, 157 FERC QFs to obtain financing.’ ’’ (citing NOPR, 168 FERC 17 Id. PP 151, 189, 211. ¶ 61,134, at P 8 (2016). ¶ 61,184 at P 69)); SEIA Comments at 30.
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organized markets, independently precedent, however, permits utilities to utilities effectively receive guaranteed developed renewables are able to offer a capacity rate of zero to QFs when fixed-price contracts through their rights develop without the entitlement to a the utility does not need incremental to recover prudently incurred fixed-price contract for energy from the capacity.28 That means that, as a result investments. The equivalent right to relevant utility.24 But the growth of of this Final Rule, QF developers will receive fixed-price contracts has to date renewables and their financeability in face the very real prospect of not proved an integral element of the organized markets tells us almost receiving any fixed revenue stream, Commission’s ability to satisfy PURPA’s nothing about what is required to whether for energy or capacity, in areas prohibition on discriminatory rates.33 sufficiently encourage QFs outside those where they also cannot secure hedging 15. And yet this Final Rule fails to markets.25 products or other mechanisms needed explain how eliminating the fixed-price 12. It would be one thing to eliminate to finance a new QF.29 It is hard for me option is consistent with that the requirement to provide a fixed-price to understand how the Commission can, prohibition or, moreover, how option for energy rates for QFs that are with a straight face, claim to be permitting QFs to receive variable entitled to a fixed price for capacity. encouraging QF development while at contract rates while vertically integrated Although reasonable minds might the same time eliminating the utilities receive fixed ones is consistent disagree about whether a fixed price for conditions necessary to develop QFs in with the Commission’s obligation to capacity alone is sufficient the regions where they are being built.30 promote QFs.34 Instead, the encouragement, combining one with a 13. The Commission sidesteps this Commission notes that, through so- variable price for energy would provide point in responding that PURPA does called fuel adjustment clauses, at least some guaranteed revenue stream not require that QFs be financeable. vertically integrated utilities’ rates with which to finance new That is true in a literal sense; nothing in change as the price of fuel changes.35 development.26 Indeed, much of the PURPA directs the Commission to The idea that those clauses, which Commission’s justification for ensure that at least some QFs be ensure that utilities recover a specific eliminating the fixed-price contract financeable. But it does require the variable cost (i.e., their cost of fuel), is option for energy rests on the Commission to encourage their the same thing as having your entire availability of a fixed-price contract development, which we have previously revenue exposed to variations in option for capacity.27 Commission equated with financeability.31 If the prevailing market conditions is Commission is going to abandon that hogwash. The presence of fuel 24 See Final Rule, 172 FERC ¶ 61,041 at P 340 standard, it must then explain why what adjustment clauses in no way suggests (‘‘EIA data demonstrates that net generation of that vertically integrated utilities are energy by non-utility owned renewable resources in is left of its regulations provides the the United States grew by almost 700% between requisite encouragement—an subject to anything remotely close to the 2005 and 2018.’’). Although independent power explanation that is lacking from this level of revenue variation contemplated producers, renewable or otherwise, within the RTO/ Final Rule, notwithstanding the in this Final Rule. ISO markets are not entitled to fixed price contracts Commission’s repeated assertions to the 16. Finally, the Commission fails to for energy as a matter of law, they generally do rely explain why allegations of QF rates on alternative tools, such as commodity hedges, to contrary. lock-in energy revenue streams. See, e.g., EEI 14. The Commission also does not exceeding a utility’s actual avoided cost Comments at 36; sPower Comments at 12. sufficiently explain how eliminating the requires us to abandon the 25 In the logical leap of the year, the Commission fixed-price contract requirement is Commission’s long-held principles notes that in some areas of the country, unspecified regarding certainty and financing.36 As resources are developed with a fixed-price contract consistent with PURPA’s requirement for capacity and a variable price for energy and, that rates ‘‘shall not discriminate an initial matter, the Commission has separately, that renewables have grown nationwide against’’ QFs.32 Vertically integrated recognized that QF rates may exceed more than seven-fold between 2005 and 2018. Final actual avoided costs, but, at the same Rule, 172 FERC ¶ 61,041 at P 340. From those time, recognized that avoided cost rates disparate observations, the Commission concludes incurred.’’) (internal quotation marks omitted); id. that ‘‘renewable resources are able to acquire P 237 (‘‘The Commission stated that these fixed might also turn out to be lower than the financing even without the right to require long- capacity and variable energy payments have been electric utility’s avoided costs over the term fixed energy rates.’’ Id. But nothing in the sufficient to permit the financing of significant course of the contract. The Commission amounts of new capacity in the RTOs and ISOs.’’). record suggests that that phenomenal growth in has reasoned that, ‘‘in the long run, renewables was at all the result of that bifurcated 28 See, e.g., id. P 422 (citing to City of Ketchikan, contract structure. That, it should be clear, is not Alaska, 94 FERC ¶ 61,293, at 62,061 (2001)). ‘overestimations’ and ‘underestimations’ reasoned decisionmaking. Cf. Nat’l Ass’n of 29 See, e.g., Resources for the Future Comments at of avoided costs will balance out.’’ 37 Recycling Indus., Inc. v. Fed. Mar. Comm’n, 658 6; SEIA Comments at 30; Southeast Public Interest However, when presented with a couple F.2d 816, 820 n.10 (D.C. Cir. 1980) (‘‘We do not Organizations Comments at 12. allegations that avoided costs were 30 want, after all, blithely to compare apples and See Public Interest Organizations Comments at 38 oranges. Likewise, an agency should also avoid 10–11 (‘‘Obviously, rules that have an effect of overestimated, the Commission now unavailing comparisons of nonsubstitutes.’’); see discouraging QFs cannot be ’necessary to’ concludes that that possibility suggests also Commissioner Slaughter Comments at 4 encouraging them.’’); see also Massachusetts it must abandon the fixed-energy rate (noting the ‘‘widespread geographic differentiation’’ Attorney General Maura Healey Comments at 6 in renewable energy progress and ‘‘barriers to (‘‘This action may reduce investor confidence and South Carolina Solar Business Alliance Comments independent renewable energy-based power discourage future development. That outcome is a at 7–8; sPower Comments at 13. producers’’). negative one for the Commonwealth and its 33 See supra n.20; Commissioner Slaughter 26 See, e.g., SEIA Comments at 29 (‘‘While ratepayers.’’). Comments at 4. securing financing based on an As-Available Energy 31 See, e.g., Order No. 69, FERC Stats. & Regs. 34 rate and a fixed capacity rate may be a rare ¶ 30,128 at 30,880 (justifying the rule on the basis Public Interest Organizations Comments at 51 possibility in a few sub-markets across the country, of ‘‘the need for certainty with regard to return on (‘‘[L]imiting QFs to contracts providing no price as Mr. Shem explains, it certainly is not the case investment in new technologies’’); NOPR, 168 FERC certainty for energy values, while non-QF in any state that does not participate in an ISO/RTO ¶ 61,184 at P 63 (‘‘The Commission’s justification generation regularly obtains fixed price contracts market.’’). for allowing QFs to fix their rate at the time of the and utility-owned generation receives guaranteed cost recovery from captive ratepayers, constitutes 27 See Final Rule, 172 FERC ¶ 61,041 at P 36 LEO for the entire term of a contract was that fixing discrimination.’’). (‘‘This assertion that the Commission has the rate provides certainty necessary for the QF to 35 eliminated fixed rates for QFs is not correct .... obtain financing.’’). Final Rule, 172 FERC ¶ 61,041 at P 122. The NOPR thus made clear: under the proposed 32 16 U.S. Code § 824a–3(b)(2). Unlike provisions 36 See supra n.19. revisions to § 292.304(d), a QF would continue to of the Federal Power Act, PURPA prohibits any 37 Order No. 69, FERC Stats. & Regs. ¶ 30,128 at be entitled to a contract with avoided capacity costs discrimination against QFs, not just undue 30,880. calculated and fixed at the time the LEO is discrimination. See ELCON Comments at 21–22; 38 Final Rule, 172 FERC ¶ 61,041 at PP 265, 268.
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contract altogether. The Commission, markets.43 Although the Commission purchase obligation from those however, makes no effort to validate revises the NOPR’s per se rule to be a resources.45 The Final Rule reduces the these allegations,39 or assess whether rebuttable presumption, it nevertheless threshold for that presumption from 20 the overestimations of avoided cost plows ahead with the conclusion that MW to 5 MW. 46 That is an were, in fact, balanced out.40 It is LMP, and similar measures, reflect a improvement over the NOPR, which— arbitrary and capricious to point to only utility’s avoided cost of energy. Where without any support whatsoever— half the picture in abandoning a forty- there is good reason to believe that those proposed to lower that threshold to 1 year-old principle. measures do not actually reflect the MW.47 But, even so, the reduced 5 MW long-term value of energy that they are ii. Rebuttable Presumption for Setting threshold is unsupported by the record supposed to represent, it makes no Avoided Cost at LMP and Similar and inadequately justified in today’s sense to put the burden on QFs to prove Measures Final Rule. the point,44 rather than leaving the 17. I also do not support the burden with the proponents of using 21. When it originally established the Commission’s decision to treat LMP or such measures. 20 MW threshold, the Commission other ‘‘competitive market prices’’ as a 19. The Commission’s presumptive pointed to an array of barriers that presumptively reasonable measure of an approval of LMP and similar measures prevented resources below that level as-available avoided cost for energy.41 is even more problematic when from having truly non-discriminatory Liquid price signals can be useful and combined with the decision to allow access to RTO/ISO markets. Those transparent inputs and ought to be utilities to eliminate the fixed-price barriers included complications considered in calculating an appropriate contract option. Following this Final associated with accessing the avoided-cost figure. But considering Rule, QFs may be reduced to relying transmission system through the those price signals in setting avoided solely on some synthetic and highly distribution system (a common cost is not the same thing as presuming variable measure of what spot prices occurrence for such small resources), that LMP or similar measures are alone should be in a competitive market based challenges with reaching distant off- sufficient to establish avoided cost. on gas prices and heat rates, all while takers, as well as ‘‘jurisdictional Many regions of the country—often the the utilities whose costs the QF is differences, pancaked delivery rates, same regions where the debates about avoiding recovers an effectively and additional administrative PURPA are most heated—have not guaranteed rate potentially in excess of procedures’’ that complicate those established sufficiently competitive this representative ‘‘competitive market resources’ ability to participate in those markets. In these regions it is not clear price.’’ I am not persuaded that this markets on a level playing field.48 In from the record that the prices in, for approach will satisfy our obligation to just the last few years, the Commission example, a neighboring RTO, are a encourage QFs and to do so using rates has recognized the persistence of those representative measure of a utility’s that are non-discriminatory across all barriers ‘‘that gave rise to the rebuttable avoided cost. In those less competitive regions of the country. presumption that smaller QFs lack markets, it simply does not make sense 49 B. Rebuttable Presumption 20 MW to 5 nondiscriminatory access to markets.’’ to presume that LMP or other MW 22. Nevertheless, the Final Rule ‘‘competitive market prices’’ are a abandons the 20 MW threshold based representative measure of avoided cost, 20. Following the Energy Policy Act on the conclusory assertion that ‘‘it is rather than one of many criteria that of 2005, the Commission established a reasonable to presume that access to should go into that determination.42 rebuttable presumption that QFs with a RTO/ISO markets has improved’’ and it 18. For similar reasons, I share the capacity greater than 20 MW operating in RTOs and ISOs have non- is, therefore, ‘‘appropriate to update the concern of many commenters that short- 50 term or spot prices, such as LMP, may discriminatory access to competitive presumption.’’ No doubt markets have not reflect the long-term marginal markets, eliminating utilities’ must- improved. But a borderline-truism about energy costs avoided by purchasing maturing markets does not explain how utilities, especially outside of organized 43 Final Rule, 172 FERC ¶ 61,041 at n.163; Hydro the barriers arrayed against small Comments at 11; Southeast Public Interest resources have dissipated, why it is Organizations Comments at 19; NIPPC, CREA, REC, reasonable to ‘‘presume’’ that the 39 Id. PP 291, 293. and OSEIA Comments at 52, 55; Union of 40 The Commission is quick to point to ‘‘the Concerned Scientists Comments at 6. Take, for remaining barriers do not inhibit non- precipitous decline in natural gas prices’’ starting example, the Commission’s approval of the Mid- discriminatory access, or why 5 MW is in 2008 that may have caused QF contracts fixed Columbia market hub price as presumptively prior to that period to underestimate the actual cost reflecting a utility’s avoided cost for energy. See 45 New PURPA Section 210(m) Regulations of energy. See, e.g., Final Rule, 172 FERC ¶ 61,041 Final Rule, 172 FERC ¶ 61,041 at PP 180, 189. Applicable to Small Power Production and at P 287). However, PURPA has been in place for Notwithstanding explicit support for this approach Cogeneration Facilities, Order No. 688, 117 FERC forty years, and the Commission does not wrestle from the regulated utility industry, the Washington ¶ 61,078, at P 72 (2006), order on reh’g, Order No. with the magnitude of potential savings conveyed Utilities and Transportation Commission which, 688–A, 119 FERC ¶ 61,305 (2007), aff’d sub nom. to consumers from the fixed-price energy contracts when addressing Puget Sound Energy’s plan to Am. Forest & Paper Ass’n v. FERC, 550 F.3d 1179 that locked-in low rates for consumers during the increase wholesale purchases from the Mid- (D.C. Cir. 2008); see 16 U.S.C. § 824a–3(m). decades prior when natural gas prices were several Columbia market ‘‘liquid hub’’ to 1,600 MW, 46 times higher. See Energy Information expressed a concern about the regulated utility’s Final Rule, 172 FERC ¶ 61,041 at P 625. Administration Total Energy, tbl. 9.10 (last viewed overreliance on such wholesale market pricing and 47 NOPR, 168 FERC ¶ 61,184 at P 126. July 15, 2020), https://www.eia.gov/totalenergy/ directed them to pursue an alternative plan to 48 Order No. 688–A, 119 FERC ¶ 61,305 at PP 96, data/browser/. eliminate this ‘‘excessive risk.’’ That is the exact 103. 41 Final Rule, 172 FERC ¶ 61,041 at PP 151, 189, type of tension conveyed in the record—i.e, that 49 E.g., N. States Power Co., 151 FERC ¶ 61,110, 211. such competitive market prices may not accurately at P 34 (2015). 42 Congress itself seems to have contemplated that reflect a utility’s avoided cost, as approved by 50 Final Rule, 172 FERC ¶ 61,041 at P 629 (‘‘Over states would not rely solely on spot market prices regulators. See Washington UTC, Acknowledgment the last 15 years, the RTO/ISO markets have when establishing avoided cost. H.R. Rep. No. 95– Letter Attachment, Puget Sound Energy’s 2017 matured, market participants have gained a better 1750, at 7833 (1978) (‘‘In interpreting the term Electric and Natural Gas Integrated Resource Plan, understanding of the mechanics of such markets ‘incremental cost of alternative energy,’ the Wash. UTC Docket Nos. UE–160918, UG–160919 and, as a result, we find that it is reasonable to conferees expect that the Commission and the states (Revised June 19, 2018); see NIPPC, CREA, REC, presume that access to the RTO/ISO markets has may look beyond the cost of alternative sources and OSEIA Comments at 56. improved and that it is appropriate to update the which are instantaneously available to the utility.’’). 44 Final Rule, 172 FERC ¶ 61,041 at P 152. presumption for smaller production facilities.’’).
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an appropriate new threshold for that describes the changes adopted as merely PURPA in a manner that both promotes presumption. corrective and clarifying in nature when actual competition and reflects 23. Instead of any such evidence, the it comes to conducting an Congress’s unambiguous intent.59 For Final Rule notes that the Commission environmental review.55 In particular, example, in a white paper released prior uses the 5 MW as a demarcating line for the Commission contends that ‘‘the to the NOPR, the National Association other rules applying to small resources. changes adopted in this final rule are of Regulatory Utility Commissioners Specifically, it points to the fact that required to ensure continued future (NARUC) urged the Commission to give resources below 5 MW can use a ‘‘fast- compliance of the PURPA Regulations meaning to the 2005 amendments by track’’ interconnection process, whereas with PURPA, based on the changed establishing criteria by which a larger ones must use the large generator circumstances found by the Commission vertically integrated utility outside of an interconnection procedures.51 But the in this final rule.’’ 56 In other words, RTO or ISO could apply to terminate the fact that the Commission used 5 MW as because the Commission believes that must-purchase obligation if it conducts the cut off in another context hardly the changes adopted are necessary to sufficiently competitive solicitations for shows that it is the right cut off to use conform with the statute, they are mere energy and capacity.60 Other groups, in this context. corrective changes, which, in turn, including representatives of QF 24. Lacking substantial evidence to qualifies them for the categorical interests, submitted additional support the 5 MW threshold, the exemption from any environmental comments on how an approach along Commission falls back on a deferential review under NEPA, or so the argument those lines might work.61 Several parties standard of review.52 But while judicial goes. commented on those proposals.62 review of agency policymaking is 26. But by that logic, any Commission It is a shame that the Commission has deferential, it is not toothless. The same action needed to comply with our elected to administratively gut its long- cases on which the Commission relies various statutory mandates—whether standing PURPA implementation require that, when an agency’s policy ‘‘just and reasonable’’ or the ‘‘public regime, rather than pursuing reform reversal ‘‘rests upon factual findings interest’’—would be deemed corrective rooted in PURPA section 210(m), such that contradict those which underlay its in nature and, therefore, excluded from as the NARUC proposal. Pursuing an prior policy,’’ the agency must ‘‘provide environmental review. The option along those lines could have a more detailed justification than what Commission, however, fails to point to produced a durable, consensus solution would suffice for a new policy created any evidence suggesting that is what the to the issues before us. I continue to on a blank slate.’’ 53 That is because Council on Environmental Quality believe that the way to modernize reasoned decisionmaking requires that, contemplated when it allowed for PURPA is to promote real competition, when an agency changes course, it must categorical exemptions. not to gut the provisions that the provide ‘‘a reasoned explanation . . . IV. The Way To Revise PURPA Is To Commission has relied on for decades for disregarding facts and circumstances Create More Competition, Not Less out of frustration that Congress has that underlay or were engendered by the repeatedly failed to repeal the statute prior policy.’’ 54 For the foregoing 27. It didn’t have to be this way. itself. reasons, the Commission has failed to When Congress reformed PURPA in the produce any such explanation, making 2005 Energy Policy Act amendments, it For these reasons, I respectfully dissent in its change of course arbitrary and indicated an unmistakable preference part. capricious. for using market competition as the off- Richard Glick, ramp for utilities seeking relief from Commissioner. III. Environmental Review Under the their PURPA obligations.57 Those National Environmental Policy Act reforms directed the Commission to [FR Doc. 2020–15902 Filed 9–1–20; 8:45 am] 25. In contrast to the Commission’s excuse utilities from those obligations BILLING CODE 6717–01–P crowing over the significance of its where QFs had non-discriminatory 59 PURPA overhaul, the Final Rule access to RTO/ISO markets or other See Advanced Energy Economy Comments at sufficiently competitive constructs.58 13; Industrial Energy Consumers Comments at 13– 14; EPSA Comments at 16. 51 28. This record contains numerous Id. P 630. 60 National Association of Regulatory Utility 52 Id. P 637 (citing FCC v. Fox Television, 556 comments explaining how the Commissioners Supplemental Comments, Docket U.S. 502, 515 (2009), for the proposition that an Commission could use those No. AD16–16–00, Attach. A, at 8 (Oct. 17, 2018); agency ‘‘need not demonstrate to a court’s amendments as a way to ‘‘modernize’’ satisfaction that the reasons for the new policy are id. (proposing the Commission’s Edgar-Allegheny better than the reasons for the old one; it suffices criteria as a basis for evaluating whether a proposal that the new policy is permissible under the statute, 55 Under the National Environmental Policy Act was adequately competitive). that there are good reasons for it, and that the (NEPA), the Commission must consider whether its 61 See, e.g., SEIA Supplemental Comments, agency believes it to be better, which the conscious action associated with rulemakings will have a Docket No. AD16–16–000 (Aug. 28, 2019). significant impact on the environment. See 42 change of course adequately indicates.’’). 62 See, e.g., Advanced Energy Economy 53 U.S.C. 4321 et seq. Fox Television, 556 U.S. at 515; Advanced Comments at 12; APPA Comments at 29; Colorado 56 Final Rule, 172 FERC ¶ 61,041 at P 722. Energy Economy Comments at 6. Independent Energy Comments at 7; ELCON 54 57 16 U.S.C. § 824a–3(m). Fox Television, 556 U.S. at 516; Advanced Comments at 19; Public Interest Organizations Energy Economy Comments at 6–7. 58 See Order No. 688, 117 FERC ¶ 61,078 at P 8. Comments at 90; SEIA Comments at 24; Xcel Comments at 11.
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Part III
Department of Education
34 CFR Parts 600, 602 and 668 Distance Education and Innovation; Final Rule
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DEPARTMENT OF EDUCATION correspondence courses constitute 50 title IV grant or loan assistance that the percent or more of the courses in which student earned if the student completes 34 CFR Parts 600, 602 and 668 the student enrolled during an award all the requirements for graduation for a [Docket ID ED–2018–OPE–0076] year; non-term program or a subscription- • Limit the requirement for the based program, if the student completes RIN 1840–AD38 Secretary’s approval to an institution’s one or more modules that comprise 49 first direct assessment program at each percent or more of the number of days Distance Education and Innovation credential level; in the payment period, or if the • AGENCY: Office of Postsecondary Require institutions to report to the institution obtains written confirmation Education, Department of Education. Secretary when they add a second or that the student will resume attendance subsequent direct assessment program ACTION: Final regulations. in a subscription-based or non-term or establish a written arrangement for an program; SUMMARY: The Secretary amends the ineligible institution or organization to • Remove provisions pertaining to the general, establishing eligibility, provide more than 25 percent, but no use and calculation of the Net Present maintaining eligibility, and losing more than 50 percent, of a program; Value of institutional loans for the eligibility sections of the Institutional • Require prompt Department action calculation of the 90/10 ratio for Eligibility regulations issued under the on any application an institution proprietary institutions, because the Higher Education Act of 1965, as submits to the Secretary seeking a provisions are no longer applicable; amended (HEA), related to distance determination that it qualifies as an • Clarify the satisfactory academic education and innovation. In addition, eligible institution and on any progress requirements for non-term the Secretary amends the Student reapplications for a determination that credit or clock programs, term-based Assistance General Provisions the institution continues to meet the programs that are not a subscription- regulations issued under the HEA. requirements to be an eligible based program, and subscription-based DATES: institution for HEA programs; programs; Effective date: These regulations • • are effective July 1, 2021. Allow students enrolled in eligible Clarify that the Secretary will rely Implementation date: For the foreign institutions to complete up to 25 on the requirements established by an implementation dates of the included percent of an eligible program at an institution’s accrediting agency or State regulatory provisions, see the eligible institution in the United States; authorizing agency to evaluate an Implementation Date of These and clarify that, notwithstanding this institution’s appeal of a final audit or Regulations section of this document. provision, an eligible foreign institution program review determination that may permit a Direct Loan borrower to includes a finding about the FOR FURTHER INFORMATION CONTACT: For perform research in the United States institution’s classification of a course or information on these Distance for not more than one academic year if program as distance education, or the Education and Innovation regulations, the research is conducted during the institution’s assignment of credit hours; please contact Greg Martin at (202) 453– dissertation phase of a doctoral • Clarify that the Secretary may deny 7535 or by email at gregory.martin@ program; an institution’s certification or ed.gov. • Clarify the conditions under which recertification application to participate If you use a telecommunications a participating foreign institution may in the title IV, HEA programs if an device for the deaf (TDD) or a text enter into a written arrangement with an institution is not financially responsible telephone (TTY), call the Federal Relay entity that does not participate in the or does not submit its audits in a timely Service (FRS), toll free, at (800) 877– title IV, HEA programs; manner; and 8339. • Provide flexibility to institutions to • Clarify that an institution is not SUPPLEMENTARY INFORMATION: modify their curricula at the financially responsible if a person who recommendations of industry advisory Executive Summary exercises substantial ownership or boards and without relying on a control over an institution also Purpose of This Regulatory Action: traditional faculty-led decision-making exercised substantial ownership or Through this regulatory action, the process; control over another institution that Department of Education (Department • Provide flexibility to institutions closed without executing a viable teach- or we) amends the general, establishing when conducting clock-to-credit hour out plan or agreement. eligibility, maintaining eligibility, and conversions to eliminate confusion losing eligibility sections of the about the inclusion of homework time Costs and Benefits Institutional Eligibility regulations in the clock-hour determination. As further detailed in the Regulatory issued under the Higher Education Act • Clarify the eligibility requirements Impact Analysis, the benefits of the of 1965, as amended (HEA), related to for a direct assessment program; regulations include— distance education and innovation. In • Clarify, in consideration of the (1) Updating and clarifying addition, the Secretary amends the challenges to institutions posed by definitions of key terms related to Student Assistance General Provisions minimum program length standards distance education, correspondence regulations issued under the HEA. A associated with occupational licensing courses, direct assessment, and more detailed summary can be found in requirements, which vary from State to competency-based programs to support the Summary of the Major Provisions of State, that an institution may the continued development of these This Regulatory Action section. demonstrate a reasonable relationship innovative educational methods; between the length of a program, as (2) Identifying a disbursement process Summary of the Major Provisions of defined in 20 U.S.C. 1001(b)(1), and the for a subscription model for This Regulatory Action entry-level requirements of the competency-based education so schools These regulations— occupation for which that program know how their students can access title • Clarify that when calculating the prepares students; IV aid for them, removing one potential number of correspondence students, a • Clarify that a student is not barrier to growth of such programs; and student is considered ‘‘enrolled in considered to have withdrawn for (3) Eliminating references to outdated correspondence courses’’ if purposes of determining the amount of technologies and making the regulations
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flexible enough to accommodate further estimate scenario and an increase in Pell which they pertain. Generally, we do technological advancements. Grant outlays of $1,021 million over 10 not address minor changes, technical Institutions that choose to offer these years, for a total net impact of $784 changes, non-substantive changes, programs will benefit from the million. The Department provides recommended changes that the law does clarifications of terms and processes additional detail related to budget not authorize the Secretary to make, or involved in establishing and estimates in the Regulatory Impact comments pertaining to operational administering direct assessment Analysis section and provides burden processes. We also do not typically programs and reduced barriers to entry. estimates in the Paperwork Reduction address comments pertaining to issues While those currently offering such Act section. that were not within the scope of the programs or competency-based courses Implementation Date of These NPRM. will be best positioned to offer new Regulations: Section 482(c) of the HEA programs in the near-term, we expect requires that we publish regulations General Support additional institutions to take advantage affecting programs under title IV of the Comments: Many commenters of the opportunities to offer new HEA in final form by November 1, prior expressed support for the regulations programs. While it is more a function of to the start of the award year (July 1) to and urged the Department not to modify continued evolution in the which they apply. However, that section them in a way that would weaken postsecondary market, removing the also permits the Secretary to designate student protections. These commenters, barriers to entry will increase any regulation as one that an entity including several students, expressed competition and some institutions could subject to the regulations may choose to that they supported the regulation as a face a cost associated with losing implement earlier and the conditions for means of both reducing barriers to students to those that offer appealing early implementation. innovation and achieving greater new programs. The Secretary is exercising her responsiveness to workforce needs. The emphasis on flexibility, authority under section 482(c) of the Stating that the Department’s workforce development, and innovative HEA to designate the regulatory changes regulations have not kept up with educational approaches will be to regulations at title 34, parts 600, 602, changing technologies, many beneficial to students. Students, and 668 of the Code of Federal commenters underscored the especially non-traditional students that Regulations included in this document importance of these regulations find the existing competency-based or for early implementation beginning on considering the sudden move to distance education programs to be September 2, 2020, at the discretion of distance education due to COVID–19. appealing for various reasons, can each institution, or each agency, as Several students supporting the rule benefit from flexible pacing and appropriate. The Department will also urged instructors, institutions, different models for assessing progress. implement the regulations as soon as accrediting agencies, or the Federal Additionally, while competency-based possible after the implementation date Government to do more to keep up with models are a relatively new segment of and will publish a separate notice changing technologies, suggesting that the postsecondary market, some announcing the timing of the the lessons learned during the pandemic evidence suggests that the self-pacing implementation. Otherwise, the final would pay dividends in terms of better model and other efforts by institutions regulations included in this document and more responsive academic to accommodate other scheduling are effective July 1, 2021. programs after it is over. Several demands students have, and to Analysis of Comments and Changes commenters said the regulations would recognize knowledge and skills gained reduce administrative burden, elsewhere, may allow students to We developed these regulations complement the changes made in the graduate with lower debt.1 However, it through negotiated rulemaking. Section accreditation final rule,3 and properly is not clear how students will respond, 492 of the HEA requires that, before balance support for innovation with and whether more traditional students publishing any proposed regulations to protections for students and/or will also be attracted to competency implement programs under title IV of taxpayers. based programs as more institutions the HEA, the Secretary must obtain A few commenters also— develop them. public involvement in the development (1) praised the move to a focus on These regulations involve a of the proposed regulations. After competencies and skills, rather than seat significant amount of monetary transfers obtaining advice and recommendations, time; among the Federal Government, the Secretary must conduct a negotiated (2) suggested the regulation would students, and institutions through rulemaking process to develop the have the benefit of reducing costs for increased Pell Grants and Federal proposed regulations. The negotiated students; student loans. The Department assumes rulemaking committee reached (3) acknowledged that distance students in the existing baseline who consensus on the proposed regulations education does not necessarily make a switch from one program to another will that we published on April 2, 2020. The course high- or low-quality but receive similar amounts of Federal aid, Secretary invited comments on the suggested that outdated technology and thus these changes will not have a proposed regulations by May 4, 2020, teaching methods can be to blame for significant budget impact. We estimate and 238 parties submitted comments. lower outcomes; that new students attracted to new An analysis of the comments and of the (4) asserted the rule would protect competency-based or other programs changes in the regulations since students from bad actors, especially developed, in part, because of the clarity publication of the notice of proposed during the pandemic, and noted 2 created by these regulations will have a rulemaking (NPRM) follows. approvingly that even the American Bar net Federal budget impact over the We group major issues according to Association, which is typically resistant 2020–2029 loan cohorts of $[-237] subject, with appropriate sections of the to distance education, has been forced million in outlays in the primary regulations referenced in parentheses. by the pandemic to embrace distance We discuss other substantive issues learning, along with other flexibilities; 1 www.texaspolicy.com/new-study-less-expensive- under the sections of the regulations to and competency-based-education-programs-just-as- good-as-traditional-programs/. 2 85 FR 18638. 3 84 FR 58834.
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(5) suggested more innovative commenters that it is best to allow changes that would weaken protections learning methods could close institutions to better serve students for students. educational disparities and, by utilizing the latest technology and to do Discussion: We appreciate these extension, wealth disparities, which so now, given the challenges many commenters’ suggestion and agree that could lead to more American students and institutions are facing. the final rule should maintain the innovation, including patents and other The Department agrees that the consensus language to the greatest ideas that could benefit humanity. proposed rule appropriately balances extent practicable. The Department is However, one commenter expressed the need for innovation with strong leaving most of the consensus language that while many will see the benefits of protections for students and taxpayers. in the proposed rule unchanged. As distance education after the pandemic is We also agree with the commenter who discussed elsewhere, the Department is over, that commenter cautioned that suggested that some disciplines may making some changes at the request of some programs would not be require at least some in-person commenters, including to permit the use appropriate to conduct fully online and instruction and noted that instructors, of asynchronous clock hours offered that flexibility should remain for institutions, and accrediting agencies through distance education and blended learning along with research to are in the best position to determine subscription-based disbursement for evaluate efficacy. whether distance, blended, or ground- programs not offered through direct Other commenters supported the rule, based instruction is most appropriate. assessment programs. As discussed in generally noting that they— (1) The Department agrees that additional this document, the Department believes appreciated the safeguards to ensure research could help it make even more the benefits of these changes outweigh regular interaction, which would reduce informed decisions in the future. We any risks. However, the Department the need for instructors to assign also agree that veterans, military- believes the final rule will maintain the ‘‘largely pointless work’’ to satisfy the connected students, and many other important protections for students standard; (2) praised the clarity of the students can benefit from CBE programs presented in the NPRM. regulations, particularly the definitions; and that more students will benefit from Changes: None. and (3) suggested the regulations will these programs because of these Comments: Several commenters benefit the education system by regulations. acknowledged that the COVID–19 allowing programs to be more Changes: None. pandemic necessitates some flexibility specifically tailored to each student’s Comments: One commenter praised in the short-term but greater oversight in individual needs. the negotiation process, calling it open, the long-term regarding distance One commenter said the rule would engaging, thorough, and fair, resulting education. expand access to high-quality, in regulations that provide better clarity Discussion: The Department believes, affordable education options to a and protections for students. The as detailed elsewhere, that the broader segment of students and that the commenter stated that the regulations appropriately consider both proposals were generally fair to subcommittee, which made a complete protections for consumers and taxpayers students, incentivized rather than set of recommendations to the main as well as the need for innovation. punished innovation, focused quality committee, engaged in active and While we did not know during assurance on outcomes, simplified informed interaction. rulemaking sessions that a pandemic eligibility requirements, and protected One commenter supported the was in our future, these regulations student and taxpayer investments. Department’s effort to select negotiators address the needs of both institutions One commenter supported the representing diverse perspectives. The and students in response to COVID–19 Department’s effort to realign the roles commenter expressed gratitude for the and serve as additional evidence that and responsibilities of the regulatory significant time and effort negotiators the rulemaking effort resulted in a triad in postsecondary education: The spent on this rulemaking. This needed and meaningful modernization Federal Government, State authorizing commenter and several others also of our prior regulations. The Department agencies, and accrediting agencies. praised the work of the negotiators and also believes that there need not be a Another commenter noted that the Department in reaching consensus. tradeoff between consumer protection institutions have been slow to adopt One commenter supported the and innovation. competency-based education (CBE) consensus agreement and the proposed Changes: None. programs, often due to Federal rule for clarifying and reaffirming the Comments: Several commenters regulations, and further suggested these appropriate role of accrediting agencies supported many of the provisions of the programs could particularly benefit in ensuring the integrity of distance proposed rule while suggesting that the veterans and military-connected education programs. The commenter lack of safeguards generally, or with students and hoped institutions would also asked that the Department not regard to distance education in develop new CBE programs because of include additional provisions that were particular, may have downsides that these regulations. not negotiated. necessitate strong consumer protections Discussion: The Department thanks Discussion: We appreciate the support to protect students and some groups of these commenters for their support for from commenters and agree that one students in particular (including these regulations, including the greater benefit of these regulations is to ensure veterans and military-connected clarity provided in a number of clarity of the role of accrediting agencies students, low-income students, students definitions. We appreciate hearing from in matters related to distance education. of color, and those lacking academic student commenters who shared their We note that the Administrative preparation). perspectives, especially as they relate to Procedure Act (APA) does not permit us Additionally, several commenters the impact of the COVID–19 pandemic to include additional provisions that suggested that proprietary institutions on their educational experience, and we were not subject to the rulemaking would be especially likely to treat appreciate their efforts to embrace effort. students unfairly. innovation, and the optimism they Changes: None. Discussion: The Department agrees expressed that these regulations will Comments: Many commenters urged that students should select programs help them and students to follow. The the Department to maintain consensus that align well with their prior academic Department agrees with many language in the final rule and not make preparation, their learning style, and
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their lifestyle. Additionally, we believe Changes: None. same commenter added that the that all educational programs must Department reneged on its historic General Opposition continue to have proper oversight by the consensus and changed the final Department, States, and accrediting Comments: Several commenters regulations without sufficient factual agencies. While protections for all expressed opposition to the final justification. The commenter stated that students are important, the benefits of a regulations because of concerns over the Department relied on ‘‘little more program should not be denied to some whether they would weaken existing than anecdotes, industry proposals, and students simply because the program is regulatory requirements on distance ideology’’ in its original proposals. The not the right choice for others. The education programs. Other commenters commenter also added that the Distance Department notes that the growth of opposed the final regulations because Education subcommittee should have adaptive learning and artificial they worried about the potential more fully included student and intelligence tools in recent years have negative impacts on colleges, taxpayer voices and interests and that allowed institutions to provide more universities, and the learning the Department failed to follow its own personalized academic supports, at environments of all students. One of agreed to protocols by not providing a scale, that may be even better than what these commenters suggested that the preamble to members to review and would be available in a traditional cumulative effect of the proposed rule comment on prior to publication. classroom, particularly in traditional would allow for drastic and unnecessary Similarly, a different commenter large lecture courses. These changes in the name of efficiency and remarked that student veterans were not technologies may facilitate more regular innovation, while sacrificing students’ sufficiently represented, and more and effective faculty-student interaction learning and protection in the process, similar individuals should have been than a traditional classroom format leading to further damage to students added to the negotiating committees. enables. and taxpayers. Many of these Another commenter argued that the The Department believes the commenters expressed similar concerns livestreaming was not open to the enforcement of provisions protecting that the proposed changes would expose public and that the consensus vote on students is vital and should occur students and taxpayer-funded Federal the regulations could not be considered without regard to the tax status of the aid dollars to undue risk. either valid or indicative of general institution in question unless Congress Discussion: We thank the commenters support from any of the communities directs the Department otherwise. The for expressing their concerns, and we around the negotiation table. Further, Department takes all allegations of harm have considered their objections. We do the commenter stated that the data to students seriously and does not not share their apprehension about the provided to the negotiators was condone improper conduct by any type predicted consequences of these final disjointed and insufficient and that the of institution whether public, private regulations. In fact, we believe that this Department should incorporate non-profit, or proprietary. final rule properly balances the need to additional reporting requirements for Changes: None. protect student interests and guard distance education purposes, Comments: One commenter urged the taxpayer dollars, while also providing specifically reporting about the distance Department to avoid provisions that innovators the tools to deliver high- education status of students who take would create unintended consequences quality, distance education for students Federal loans. for osteopathic clinical education in the 21st century. We do not believe A group of commenters objected to programs, including students these goals must necessarily come at the the rulemaking process, stating that the completing out-of-State clinical expense of one another. Department appointed negotiators who rotations. The commenter further Changes: None. appeared to have been selected, not for requested that the Department avoid Comments: Some commenters stated their subject-matter expertise, but for new financial and administrative that the Department should rescind the their ties to the for-profit college burdens during the COVID–19 proposed regulations and redraft new industry. pandemic. regulations that protect educational Discussion: As we stated in the final Discussion: The Department quality, the interests of students and regulations on student assistance considered clinical education programs taxpayers, and the general higher general provisions, the Secretary’s in this rulemaking as well as the education community. recognition of accrediting agencies, and accreditation rulemaking, which Another commenter agreed that the the Secretary’s recognition procedures covered issues related to State proposed regulations should be for State agencies published on authorization of distance education and rescinded, in part, because the November 1, 2019, we disagree with the are effective July 1, 2020. These distance Department did not conduct reasoned commenters who said that the education and innovation regulations rulemaking as required by the APA. Department’s rulemaking process was become effective July 1, 2021, allowing This commenter suggested that some flawed.4 It is not uncommon for the institutions and others adequate time to negotiators did not understand the rules Department to address multiple topics plan for their implementation. Early and that the Department ‘‘stacked the with a single negotiated rulemaking implementation is optional. We do not deck’’ with an unmanageable agenda, committee, nor was this the first time anticipate that these regulations will created negotiating committees stacked that the Department utilized non-voting create unique burdens on osteopathic heavily in favor of industry, and starved subcommittees to delve into a specific clinical education programs, which may the committee of any real data or topic and provide recommendations to elect to not integrate or expand distance information to inform the rulemaking. the main committee. The learning opportunities within those Further, the commenter stated that the subcommittee’s recommendations were programs. The Department sought to Department ‘‘bullied’’ negotiators who not binding on the members of the main reduce financial and regulatory burden ‘‘dared to oppose the Department’s committee, who were free to discuss the overall during this rulemaking. The proposals and threatened others with issues in as much detail as they required Regulatory Impact Analysis and promises of worse regulations if they to come to a consensus agreement. The Paperwork Reduction Act sections of refused to accede.’’ The commenter Department notes that we added an this final rule contain additional concluded that the result was an information about cost and burden. ‘‘illegitimate’’ vote of consensus. The 4 See: 84 FR 58836.
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additional negotiator, and an additional negotiators because the information was notwithstanding these distance negotiating session at the request of not available, but we do not believe the education regulations.6 negotiators, to represent all relevant absence of those data prevented The Department acknowledges the constituencies and in hope of reaching negotiators from considering reasoned commenter’s reference to litigation consensus. proposals. against online education providers, but The Department disagrees with the We appreciate the commenter’s those legal actions do not direct the commenter that our efforts to achieve proposal to add reporting requirements Department’s regulatory work. We also consensus were inappropriate. Contrary to the final regulations, but we do not acknowledge the arguments against to the commenter’s assertions, the adopt their proposal. The Department is distance education, but the Department Department compromised countless comfortable with the current regime of does not advocate for one type of times, moved away from its initial reporting requirements for distance education delivery system over any proposals, and accepted negotiators’ education and does not wish to create other. The Department supports request for substantially more time to new burden on institutions that rely on education innovation that is rigorous, negotiate. or integrate distance education meets students’ needs, and assists Regarding the makeup of the technology in their education programs. students in achieving their educational subcommittee, the process of negotiated We acknowledge that there were goals. These final regulations assist in rulemaking ensures that we consider a temporary connectivity issues with the removing unnecessary barriers to that broad range of interests in the livestreaming of the distance education innovation, while also assuring that development of regulations. subcommittee. While we regret the online programs remain academically Specifically, negotiated rulemaking is interruption, the Department worked rigorous, well-planned, and appropriate. designed to enhance the rulemaking quickly to restore the connection to Changes: None. process through the involvement of all ensure that interested parties could Comments: One commenter remarked parties significantly affected by the view the discussion. The sessions were that the Department has led taxpayers to topics for which we will develop the also recorded and can be viewed on the believe that changes to the distance regulations. Department’s YouTube channel.5 The education regulations will allow Accordingly, section 492(b)(1) of the proceedings of the main committee can students to ‘‘fast-track their education HEA, 20 U.S.C. 1098a(b)(1), requires be viewed at edstream.ed.gov. and save money’’ and that the taxpayer that the Department choose negotiators We based the proposed regulatory will eventually pay the bill. The from groups representing many different changes on many factors, including commenter also wrote that CBE and constituencies. The Department selected public feedback, research outlined in individuals with demonstrated expertise career technology training is the ‘‘adult greater detail in the NPRM, and version of Common Core.’’ or experience in the relevant subjects emerging trends in postsecondary under negotiation, reflecting the Another commenter stated the education. Specifically, the Department proposed regulations are intended to diversity of higher education interests developed a list of proposed regulatory and stakeholder groups, large and small, create tax breaks and ease burdens on provisions based on advice and wealthy taxpayers. national, State, and local. In addition, recommendations submitted by the Department selected negotiators Discussion: The Department is individuals and organizations as confused by the commenter who with the goal of providing adequate testimony in a series of three public representation for the affected parties suggested that the intended purpose of hearings in September of 2018, as well the final rule was to create tax breaks while keeping the size of the committee as written comments submitted directly manageable. At the request of and ease the burden on wealthy to the Department. taxpayers. The Department is not negotiators, the Department agreed to Changes: None. empowered to create tax breaks. add a representative of State Higher Comments: One commenter provided Education Executive Officers on the statistics showing the types of We are similarly confused by the main committee. In addition, a institutions that are active in the online commenter who stated that CBE and representative of the New York Attorney education industry and on the growing career technology training is the ‘‘adult General was added as a member to the expansion of online education. This version of Common Core.’’ The subcommittee. commenter concluded that growth has Department is not attempting to dictate Students and consumer protection not correlated with increased access to academic content or establish national advocates were represented by non- minority and non-traditional students or content standards, so we are unclear on Federal negotiators on the full more quality programs. The commenter any similarity to a set of elementary and committee and the subcommittee— also referenced lawsuits against online secondary English language arts and student veterans were well-represented education providers and outlined mathematics standards. While some on the full committee—with primary arguments against distance education. students may be able to complete their and alternate representatives for each of Discussion: We appreciate the program more quickly, the Department these constituencies. Moreover, the information provided by the disagrees that this will result in some Department conducted three public commenter, as well as the outline of the sort of ‘‘balance’’ that must be covered hearings before the negotiated arguments against distance education. by taxpayers. The Department also rulemaking began and provided time for We note, however, that institutions from never stated that the final rule would public comment on each of the 12 days all sectors-regardless of whether they allow students to ‘‘fast-track’’ their that the main committee convened. provide online or in-person classroom education. We believe that students We disagree with the commenters instruction-have been the subject of should be able to access educational who stated that the Department failed to lawsuits and borrower defense claims. services that are appropriate to their provide data or evidence, or stated that We reaffirm that legal action and the needs, provide them with high-quality the data was disjointed or insufficient, borrower defense process remain training and education, and meet the to support the need for the proposed available to all students, requirements of the HEA, as amended. regulatory changes during negotiated Changes: None. rulemaking. The Department was unable 5 U.S. Department of Education YouTube page, to fulfill several data requests made by www.youtube.com/user/usedgov/videos. 6 84 FR 49788.
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Comments: One commenter stated consensus language reflects that of their online programs, engage in pay- that any weakening of the protections concern. The Department notes that it is to-play admissions schemes, engage in included in the consensus language not within our regulatory authority to predatory advertisement or enrollment would present a serious risk to all roll back legislative protections; our activities, or fraudulently misrepresent students, especially Latino students, regulations—and these final regulations their educational programs—and likely who, according to the commenter, are specifically—must fall within the student outcomes. We will take overrepresented at institutions that, on parameters authorized by statute. necessary actions to hold institutions average, produce worse outcomes for We disagree with commenter’s accountable, regardless of their tax students. Another commenter similarly suggestion that the final regulations status or organizational structure. remarked that non-traditional students jeopardize opportunities to access The Department appreciates the would be negatively impacted by the higher education. This final rule commenters concerns and addresses the final regulations. promotes more high-quality, distance point regarding the use of recycled or Discussion: We appreciate the education opportunities for students pre-recorded lectures in the appropriate commenters’ submissions and share who are not otherwise capable of sections below. However, we note that their desire for all students—men, attending traditional classroom-based such a concern is not limited to distance women, minorities, under-represented courses. In fact, much of our work is learning modalities. populations, and non-traditional animated by the desire to expand Changes: None. populations—to have access to high- opportunities through education for Comments: Many commenters asked quality education services. economic mobility and advancement. the Department to rescind the proposed The Department rejects the notion The Department takes its rule or, alternatively, delay its that student protections are weakened responsibility to administer the title IV implementation, to maintain existing in the proposed rule or that any such programs seriously and strenuously rules protecting the role of faculty and weakening disproportionately impacts seeks to guard taxpayers’ dollars in the student interaction and restricting one student population over another. As operation of those programs. We outsourcing. This would allow Congress we stated in the Program Integrity: disagree with the commenters’ and the public to better assess the needs Gainful Employment final regulations, suggestions otherwise. of students and institutions. One of the Department believes that more must Finally, legislators have the ability to these commenters wrote that the be done to improve outcomes for high- further clarify their intent through Department has a responsibility to avoid risk students, and more options must be future legislative action. We look making changes to distance education made available to students for whom forward to working with Congress on that would open the door to instruction college—and, especially, the traditional any such actions to promote educational without interaction between students college experience—is not the best or opportunities for all students. and faculty, leaving students entirely preferred option.7 We believe that high- Changes: None. reliant on software, apps, games, and quality distance education programs, Comments: One commenter wrote prerecorded video. This commenter also like the ones envisioned by the that the intent of the final regulations is wrote that the proposed rules would members of the subcommittee, can and to loosen the restrictions on institutions ‘‘undermine meaningful instruction by do meet students’ unique needs and offering distance learning. The replacing it with standardized exams.’’ expand educational opportunities to commenter stated that allowing schools The commenter concluded that further students previously underserved. to have more latitude over certain rules deregulation in the distance education Changes: None. leaves room for schools to cut corners to environment did not make sense and Comments: A group of commenters save money at the expense of quality. that it would be dangerous to students stated that the Department is attempting The commenter added that the and faculty who are trying to design to use its deregulatory agenda to Department’s contention that the high-quality programs to weaken the override congressional intent to ensure reduction in regulation will increase the consensus language by expanding CBE program quality and to protect students, number of programs offered by programs. taxpayers, and the integrity of the institutions is exactly what predatory, Discussion: The Department disagrees Federal financial aid programs. The for-profit, and fraudulent institutions with the commenter’s suggestion. We commenters also suggest that the want and that it will inevitably make it see no compelling reason, nor has one Department abused its rulemaking easier for such institutions to access been provided through the public authority by rolling back legislative financial aid funds at the cost of the comment process, to rescind or delay protections that guard the integrity of students and taxpayers. Finally, the the final regulations. We also note that the student financial aid system. The commenter said that loosening reauthorization of the HEA is many commenters argued that the restrictions would allow a school to years overdue, and statute currently Department’s actions further jeopardize recycle pre-recorded lectures, give the references technologies that are sorely students’ opportunities to access a student a test, and issue unwarranted outdated. Therefore, we cannot rely higher education system that promotes degrees if the student passes. The solely on Congress to respond to the economic mobility. Finally, the commenter was concerned that such an need for higher education to adapt and commenters concluded that the outcome would greatly impact evolve to serve the needs of students. Department’s agenda is proof of its instructors’ financial well-being and the While we understand that some may intent to disregard its obligation to quality of the workforce. oppose the growth of distance responsibly administer Federal Student Discussion: The intent of the final education, largely because of concerns Aid (FSA) programs. regulations is not to loosen restrictions about what this means to the job Discussion: The Department thanks on any type of institution. The prospects of current and future the commenters for their submission. Department will continue to hold all educators, those concerns are We share their concern for protecting education providers accountable. The misplaced. The role of the instructor is students, taxpayers, and the integrity of Department does not condone the critical in high-quality distance Federal financial aid programs. The behavior of those who wrongfully cut education, as explained in the corners to save money, take advantage appropriate section below, and these 7 84 FR 31433. of students, misrepresent the selectivity regulations reaffirm the importance of
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regular and substantive interaction as a remarked upon the expanded development of much of the language key element that distinguishes between prevalence of distance education. reflected in the proposed regulations. distance learning and correspondence One commenter suggested that the In addition, the 30-day public education. proposed rule should be deliberated and comment period was necessary to allow We do not agree that the proposed commented on after the pandemic is us to meet the HEA’s master calendar rule would undermine meaningful over because the ‘‘last thing on requirements. Under those instruction by replacing it with American’s [sic] minds’’ is the requirements, the Department must standardized exams and are confident accreditation of online schools. publish final regulations by November that these final regulations do the Many commenters concluded that a 1, 2020, for them to be effective on July opposite. 30-day comment period during a 1, 2021. Delaying the effective date of Changes: None. pandemic was not sufficient to these regulations would unnecessarily Comments: One commenter suggested thoroughly review the proposed rules. delay the realization of the benefits that the Department should only allow These commenters requested that the associated with these changes. some types of programs to offer distance Department delay the implementation of Changes: None. education courses. The commenter the proposed rules. A group of commenters stated that, at Correspondence Courses: Definition and advocated for a rigid classification, this pivotal moment and informed by Limitations (§§ 600.2 and 600.7) reviewed by the Department, of subject institutions’ experiences during the Comments: Two commenters matter areas that would be eligible for pandemic, any weakening of strong expressed support for the proposed remote classes. The commenter stated protections for students and taxpayers definition of the term ‘‘correspondence that the basis for such a proposal is that would open the door for predatory course.’’ One of those commenters some careers, such as nursing and actors to repeat past abuses, putting the specifically supported the elimination teaching, require real world experiences most vulnerable students at even greater of the reference to self-pacing in the and that the value that professors bring risk. previous definition of ‘‘correspondence to their students is not the same in an One commenter stated that the course’’ and indicated that the proposed online program. Department cannot, in good faith, move definition makes it clearer that self- Discussion: The Department thanks forward with any of the issues in the paced programs are not necessarily the commenter for this proposal, but we final regulations without first grappling correspondence programs. One do not adopt this change. While we with the massive changes that the commenter also expressed support for recognize that the experiences of online COVID–19 crisis will bring to online the clarification regarding the definition learning and traditional classroom education. of a ‘‘correspondence student’’ in learning can be very different, the A group of commenters proposed that proposed § 600.7(b)(2), indicating that Department believes that high-quality the Department reopen the rulemaking the specificity in the new definition learning is possible in both process or postpone the enactment of would support new and innovative environments. We do not wish to the final regulations to allow for academic models. forestall students interested in nursing additional comments. Many of these Discussion: The Department thanks and teaching to be kept out of those commenters noted potential difficulty in the commenters for their support. fields because they are not able to attend responding to the NPRM because of Changes: None. traditional, in-person classes. In many COVID–19. One commenter suggested Comments: Several commenters instances, distance learning that military and veterans’ communities opposed the Department’s proposed opportunities are limited to students should be allotted extra time to provide changes to the definition of who are already working in fields such comments. Another commenter noted ‘‘correspondence course,’’ arguing that as teaching or nursing, and who do not the need for the Department to put the the changes would make the distinction need additional hands-on experiences. needs of our nation’s college students between distance education and In many instances, distance learning before the needs of ‘‘distance education correspondence courses less clear. enables practicing professionals to opportunists.’’ These commenters stressed the complete post-graduate certificates or Discussion: While we acknowledge importance of maintaining that graduate degrees. Moreover, for many that the NPRM may not have been top- distinction given the more limited occupations, accrediting agencies and of-mind for most Americans during the amount of support by qualified State licensing boards restrict the use of COVID–19 pandemic, the Department is instructors in correspondence courses distance learning within certain confident that the 30-day public and past abuses associated with programs. comment period was an adequate time correspondence study. Another As we have seen during the COVID– period for interested parties to submit commenter indicated that the existing 19 pandemic, some accrediting agencies comments. Because we reached definition of ‘‘correspondence course’’ and State licensing boards are beginning consensus during negotiated already adequately distinguished to recognize the opportunities presented rulemaking, the proposed regulatory correspondence education from distance by distance learning and are permitting language was available to the public at education and did not need to be certain portions of programs to be the conclusion of the final negotiating changed. provided through distance modalities. session approximately one full year Discussion: We agree with the We will continue to rely on accrediting before the comment period began, commenter about the importance of agencies and State licensing boards to which afforded interested parties support by qualified instructors, determine when and if distance learning additional time to begin formulating especially given the emphasis of that opportunities meet the education and their comments. concept in the statutory definition of training needs of students in particular Prior to issuing the proposed ‘‘distance education,’’ which requires fields. regulations, the Department conducted ‘‘regular and substantive interaction’’ Changes: None. three public hearings and four between students and instructors. We Comments: Many commenters negotiated rulemaking sessions, where also agree that it is important for the referenced COVID–19 in their stakeholders and members of the public regulatory definitions of distance submissions to the Department and had an opportunity to weigh in on the education and correspondence courses
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to be sufficiently distinct, both to in correspondence study—would receiving feedback from technology- implement the statutory distinction remain unchanged. mediated instruction. Computer-assisted between the terms and to ensure that Changes: None. instruction would also include institutions are able to design programs Definition of Academic Engagement instruction through virtual or in a way that maintains compliance and (§ 600.2) augmented reality, or any other form of avoids audit or program review findings instruction in which a student actively with respect to their online programs. Comments: Many commenters participates in a computer-based or However, we disagree that the proposed supported the Department’s proposed computer-mediated learning changes will blur the distinction definition of ‘‘academic engagement.’’ environment, with or without the between the two terms. Several commenters noted that by presence of a human instructor. An The most significant change made to moving key concepts on attendance and explicit goal of this rulemaking has been the definition of ‘‘correspondence academic activities from the Return of to reduce the need for updates to course’’ in these regulations is the title IV funds (R2T4) regulations (under regulation when new technologies are removal of the concept of self-pacing, § 668.22) to a new definition of developed, and so this definition is also which is not vital to the distinction ‘‘academic engagement’’ in § 600.2, the inclusive of technologies that are in between correspondence courses and Department emphasizes the importance their infancy or not yet invented as long distance education. The HEA also does of active student participation in other as they meet the regulation’s other not mention the concept of self-pacing, parts of the regulations. One commenter requirements. Therefore, because the nor does it express that such a condition also noted that the definition would types of learning described by the would require a course to be treated as expand academic quality and commenters (and others) are already offered through correspondence accountability. Two commenters accommodated in the proposed education rather than through distance specifically stressed their support of the definition of ‘‘academic engagement,’’ education. We believe that the aspects Department’s acknowledgement within we do not believe it is necessary to add of the definition of ‘‘correspondence the definition that student academic additional categories. course’’ that have been maintained in engagement can take on different forms, Changes: None. the definition—for example, that including interactive online courses and Comments: One commenter expressed interaction in such a course is limited, computer instruction. concern that the proposed definition of not regular and substantive, and Two commenters specifically ‘‘academic engagement’’ would require primarily initiated by the student—are expressed support for the Department’s more than simply actively logging into more than adequate to preserve the inclusion of § 600.2(2)(iv), a website. The commenter indicated important regulatory distinction ‘‘Participating in an interactive tutorial, that this could cause undue burden for between distance education and webinar, or other interactive computer- students who were unable to correspondence courses. assisted instruction,’’ in the definition. academically engage during normal Changes: None. The commenters indicated that they hours or afford the technologies Comments: One commenter objected believe this inclusion will help clarify required by institutions to demonstrate to the proposed definition of the role adaptive learning and other academic engagement as defined. ‘‘correspondence student’’ under technologies can play in providing Another commenter voiced a concern proposed § 600.7(b)(2), asserting that the academic engagement. that paragraph (3)(iv) of the proposed definition weakens the distinction Discussion: The Department thanks definition, which states that academic between distance education and the commenters for their support. engagement does not include correspondence courses and could Changes: None. participating in academic counseling or result in a larger number of participating Comments: Several commenters advisement, could discourage institutions and students engaging in requested that the Department include instructors from taking the time to speak correspondence study. new categories of activities under the with students about their academic Discussion: We disagree that the definition of ‘‘academic engagement.’’ future or professional goals. The proposed changes to § 600.7(b)(2) will Two commenters asked that the commenter mentioned that depending weaken the distinction between Department add a category for education on the nature of the course, it may be distance education and correspondence offered through virtual and augmented difficult at times for instructors to courses or result in a greater number of reality because those modalities are differentiate between interacting with institutions or students engaging in becoming more commonly used in students about ‘‘academic matters,’’ correspondence study. The only impact higher education. which qualify as academic engagement, of the changes is to clarify how to One commenter suggested that the and ‘‘academic counseling and calculate the number of correspondence Department include as a category under advisement,’’ which does not qualify. students for the purpose of determining ‘‘academic engagement’’ instruction The commenter requested that the whether an institution has exceeded the through computer-mediated adaptive Department remove the exclusion of statutory limitation on the number of instruction that alters the learning academic counseling or advisement correspondence students that may be experience for each student based on from the definition of academic enrolled at an eligible institution during that student’s needs. Another engagement. an award year. The other relevant commenter requested that the Discussion: We disagree that the statutory and regulatory restrictions on Department clarify that instructor definition of ‘‘academic engagement’’ correspondence study that discourage interaction does not have to occur causes undue burden for students. Many institutions from offering exclusively with a human instructor. institutions previously believed that, correspondence programs—for example, Discussion: As the Department under the Department’s prior the institutional eligibility limitations, discussed in the preamble to the NPRM regulations, students were required to the restriction to half-time enrollment (85 FR 18638–18702), we consider not only log in, but engage in an activity status for purposes of calculating Pell ‘‘other interactive computer-assisted weekly for which the institution Grant disbursement amounts, and the instruction’’ to include the use of maintains documentation to prove that limitations on the components of cost of artificial intelligence or other adaptive the student was engaged every couple of attendance for students enrolled solely learning tools where the student is days. This was identified as a
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burdensome requirement that regarding asynchronous academic Definition of Additional Location significantly exceeds requirements for engagement. The commenters indicated (§ 600.2) ground-based instruction, and that often that while the Department specifically Comments: One commenter requested requires students enrolled in distance mentions synchronous instruction in clarification about the addition of a education to make time for what is the definition, it does not mention definition of ‘‘additional location.’’ otherwise viewed as ‘‘busy work.’’ The asynchronous instruction even though Discussion: We did not seek comment new regulation clarifies that engagement asynchronous instruction is referenced on the ‘‘additional location’’ definition must be meaningful in order to be used elsewhere, both in the ‘‘distance in the NPRM that we address in this as the basis for complying with the education’’ definition in § 600.2 and as final rule. Instead, we sought comments Department’s related requirements (such part of the new ‘‘week of instruction’’ on that definition in an NPRM as identifying a student’s withdrawal definition in § 668.3. One commenter published in the Federal Register on date), but does not require, for example, specifically suggested including ‘‘or June 12, 2019 (84 FR 27404). That students to post a non-substantive blog asynchronous’’ after ‘‘synchronous’’ in NPRM included Accreditation-related post each week simply to ‘‘check the paragraph (2)(i) of the definition to definitions, including the definition of box’’ on documenting participation. The definition does not require a clarify that asynchronous attendance ‘‘additional location.’’ We published a student to log in or participate in a and participation in the classroom is final rule that included the definition of course or learning environment at a included when documenting academic ‘‘additional location’’ in the Federal particular time, nor does it require or engagement in an online program. Register on November 1, 2019 (84 FR incentivize institutions to demand the Another commenter asserted that 58834) in which we addressed use of expensive technologies to though certain asynchronous activities, comments we received related to the demonstrate academic engagement. The such as engagement in interactive forms definition. definition does rely on the concept of of computer-assisted instruction, might Changes: None. active participation by a student in his be read into the listed activities in Definition of a Clock Hour (§ 600.2) or her learning, which the Department paragraph (2)(iv) of the definition, the Comments: Numerous commenters believes is a necessary requirement for omission of a direct reference to voiced disagreement with the provisions academic engagement. This concept of asynchronous instruction makes it in the Department’s proposed definition active participation—which cannot be difficult to have confidence in such an of the term ‘‘clock hour’’ that require demonstrated merely by documenting interpretation. that a student has logged into an online each clock hour in a distance education Discussion: The Department’s intent system—is also vital to other regulatory program to include synchronous was not to exclude asynchronous requirements, including for purposes of instruction where students have an determining a student’s withdrawal date participation in learning activities from opportunity to interact with instructors under the R2T4 regulations. the definition of academic engagement. and asked the Department to reconsider For similar reasons, we also decline to Asynchronous academic engagement this requirement. remove the exclusion of academic could occur under any of the categories Several commenters indicated that the counseling and advisement from the described in the definition except for proposed clock hour definition definition of ‘‘academic engagement.’’ the category described under paragraph regarding distance education was too While the Department views advisory (2)(i) that describes attendance at a restrictive and should conform to the activities related to a student’s academic synchronous lecture, recitation, or field Department’s definition of ‘‘distance or career trajectory as an important or laboratory activity. For example, a education,’’ which allows for ‘‘regular component of many postsecondary student can work on an academic and substantive interaction between the programs, such advising by itself does assignment—described under paragraph students and the instructor or not demonstrate that a student is (2)(ii) of the definition—at the time of instructors, either synchronously or participating or engaged in his or her his or her choosing, and submission of asynchronously.’’ The commenters academic program. Negotiators agreed that assignment is an asynchronous asked the Department to reconsider that to the extent a qualified instructor learning activity that does not require whether clock hours could be earned is providing advising relevant to a real-time interaction with an instructor. through asynchronous instruction, specific course—for example, Similarly, a student could demonstrate noting that several educational explaining where a student can find academic engagement under paragraph platforms are already capable of answers to content-related questions, or (2)(iv), ‘‘participating in an interactive monitoring a student’s participation and recommending a particular approach to tutorial, webinar, or other interactive clocking the student out if active a writing assignment for the course— computer-assisted instruction,’’ by engagement ceases. academic engagement is taking place. engaging in a presentation through a One commenter noted the However, general academic or technical virtual or augmented reality system or Department’s reluctance to support asynchronous distance education (ADE) advising that is provided outside of a by participating in an online learning instruction within the clock hour specific course, and that is often activity that uses artificial intelligence definition was most likely due to the provided by someone who does not or adaptive learning. We do not believe concern as to whether a clock hour qualify as an instructor for the course in that it is necessary to add the word student’s required ‘‘seat time’’—50 which the student must be academically ‘‘asynchronous’’ to the definition given engaged—for example, guidance minutes in a 60-minute period—could the incorporation of this concept in each be validated. The commenter indicated regarding which classes the student of these activities. We also decline to plans to take in the future, or technical that current technology already provides remove the word ‘‘synchronous’’ from effective tools which, if properly support with instructional technology— paragraph (2)(i), since in that context it does not constitute academic incorporated into an asynchronous is used to describe a particular type of engagement. distance education platform, marry Changes: None. learning activity that is performed in effective program instruction with Comments: Several commenters asked real time with an instructor. effective ‘‘seat time’’ validation. As the Department to clarify its position Changes: None. explained by the commenter, an
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electronic synchronous distance provides systems that monitor monitoring a student’s attendance in 50 education platform would include such participation, proctor exams, verify out of 60 minutes for each clock hour. components as sign-in assurance, time attendance and provide tools for Specifically, the commenters requested monitoring through trackable digital students to interact with instructors at that the Department clarify that the new media assets, automated sign-off for the time and place of their choosing. clock hour definition not require an inactivity, live student to student and The commenters further explained that institution to have live instructor student to instructor activities and online content is most often used to involvement with a student each hour, automated Q & A, and testing processes. supplement in-person training or lab so long as the institution can monitor a Based on this information, the work and that asynchronous instruction student’s participation during 50 commenter requested that the can now be monitored by a school minutes of each hour and the institution Department modify its proposed through many educational platforms, can otherwise demonstrate academic definition of a ‘‘clock hour’’ to permit students can be clocked out for engagement (per the Department’s instruction provided via electronic inactivity, and instructors and students definition) by utilizing suitable synchronous distance education. have a variety of ways to interact with technology as demonstrated to the One commenter stressed that each other and review various course appropriate State and accrediting permitting the development of materials. Many commenters expressed agency. The commenters stressed that asynchronous instruction in clock hour a belief that current technology requiring ‘‘face-to-face’’ contact each programs allows for the kind of available to students and educators hour or at least one live touch by an instructional flexibility needed for allow for the same objectives to be met instructor per clock hour for career and technical education in an asynchronous format, while synchronous or asynchronous providers to use new methods of allowing for more flexibility to instruction would ignore the direction simulated, technology-mediated overcome challenges related to that the Department’s Proposed Rule is instruction without constraint or fear of geography, learning preferences, work heading to expand recognition of the compliance findings. or family obligations, disabilities, or capabilities of technological advances to Several commenters voiced a strong resources. One commenter suggested monitor student academic engagement desire to afford the same flexibilities to asynchronous learning could include and impose an undue hardship on students enrolled in clock hour distance the recording of classes to be viewed students who need maximum education courses as students enrolled within a specified time with periodic scheduling flexibility in completing in credit hour distance education class meetings to answer questions. clock hours by means of distance programs. To that end, one commenter Several commenters urged the education. indicated that program structure (clock Department to allow asynchronous One commenter objected to the hours or credit hours) is often based on instruction via distance education if proposed clock hour definition and institutional or State governance and approved by State and accrediting suggested the definition be reworded to has no relationship to the quality or agencies as long as an institution could account for students who may have content of a program. The commenters clearly demonstrate instructor relocated to a different time zone from asserted that students enrolled in clock engagement with the student during their institution, and therefore might not hour programs should not be penalized each clock hour through a variety of be able to attend a class session in real merely due to institutional structure. means, which could include technology time or interact with the instructor Another commenter stated that such as adaptive learning and artificial during the normal period of attendance. limiting clock hour distance education intelligence. The commenter indicated that they coursework to synchronous online Two commenters indicated that the currently attend a class in a different classes would limit the convenience and synchronous format described in the time zone and often have to watch flexibility to students of access to course proposed definition is too limiting and recordings of the class and do not want content at any time or place. Several would not be broad enough to allow these types of situations to be excluded commenters expressed concerns that students to engage in certain types of from being counted towards a student’s limiting distance education clock hour projects or assignments such as academic progress. eligibility to synchronous activities reviewing written or recorded lectures One commenter requested that the could limit innovation and discourage outside of regular classroom hours. Department clarify if it indeed intended institutions from creating more flexible Another commenter stated that the to limit distance education clock-hour and accessible learning experiences critical variable is not coordinated eligibility to only synchronous learning which could reduce potential barriers to schedules or designated time, but a experiences but instead grant more access and completion of postsecondary learning environment with diverse and flexibility to correspondence courses. programs and promote a more diverse engaging learning activities and faculty The commenter was concerned that, student population. involvement. given the limitations on correspondence Several commenters stressed that the Two commenters supported the students and courses applied to Department authorizes postsecondary inclusion of distance education into the correspondence education, institutions institutions to offer eligible Department’s clock hour definition, would prefer to designate courses as postsecondary programs in a distance arguing that distance learning distance education rather than learning format as approved by the technology has sufficiently advanced to correspondence whenever appropriate. institution’s accrediting agency and that permit institutions to conduct remotely One commenter urged the Department the exact same standards, quality synchronous instruction with students to extend the temporary flexibilities for assurance, integrity and accountability and to monitor the exact amount of time online instruction for clock hour measures used to approve traditional that students spend participating in programs due to the current coronavirus on-campus programs are also applied to these learning sessions. However, the crisis as outlined in the Department’s the distance education programs commenters urged the Department to guidance for COVID–19. The commenter approved by the accrediting bodies. provide more clarification and greater noted that the Department’s temporary Several more commenters indicated flexibility under paragraph (3) of the flexibility allows schools to offer that current technology in higher clock hour definition which states that synchronous or asynchronous online education attendance monitoring an institution must be capable of clock hour programs as long as the
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school can demonstrate student prescribed times. This flexibility can interactive tutorial or webinar online or academic engagement through various also greatly benefit students with health a learning activity involving adaptive online learning platforms and systems concerns for whom participation is learning or artificial intelligence—and or based on school data or the contingent upon treatment schedules the institution has technological instructor’s own knowledge. The and feeling well enough to perform resources and policies and procedures commenter indicated that extending required tasks. The individual pacing that are sufficient to monitor and these flexibilities would allow made possible by asynchronous learning document the time each student spends institutions to determine on a local basis allows for a more tailored educational performing that activity. If either of how to transition back to on-ground experience that promotes mastery of these conditions are not met, an education and clarify that clock hour subject matter over attendance in institution would not be permitted to schools are permitted to offer hybrid scheduled activities. Moreover, the include time spent on an online activity programs—partially on-ground and availability of asynchronous learning toward completion of a clock hour for partially online—through this period to allows for mixed model learning purposes of the title IV, HEA programs. provide maximum flexibility to meet the reflective of non-title IV eligible We also agree with the commenters health and safety needs of employees programming with theory learned who argued that clock hours offered and students. asynchronously and specific practical asynchronously should involve Several commenters specifically tasks through synchronous instruction. academic engagement, as defined requested that the Department modify The Department does not wish to elsewhere in these regulations, since paragraph (1)(iv) of the proposed clock impede technological innovations at that concept involves active hour definition to include both institutions that can help students participation in learning activities rather attendance in a synchronous or overcome barriers to access and than passive consumption of knowledge asynchronous class for distance completion. or merely logging into an online system. education coursework, while one The existence of the ‘‘regular and An institution should establish, in commenter asked the Department to substantive interaction’’ requirement accordance with its policies and those include ‘‘participation through related to clock hours offered through of its accrediting agency or State, what asynchronous academic engagement’’ or distance education and the requirement it considers to be academic engagement similar language to the distance that clock hours meet the requirements in a clock hour program in order to education eligibility criteria in of an institution’s accrediting agency clearly demonstrate that students have paragraph (1)(iv) of the clock hour and State provide the safeguards that spent the recorded time performing an definition. ensure that students have access to activity. In addition, several commenters asked quality instruction and instructor Institutions are permitted to offer the Department to consider modifying support. Given these baseline clock hour programs both through paragraph (1)(iv) to read, ‘‘In distance requirements, it is not necessary to correspondence or distance education, education, 50 to 60 minutes in a 60- require students to interact with and the Department declines to opine minute period of attendance in a instructors synchronously to earn clock on which type of program is most ‘computer-assisted’ class, lecture, or hours. appropriate or best suited to the needs recitation where there is opportunity for We also believe that commenters have of individual students. However, direct interaction between the instructor made a strong case that, given current institutions offering clock hour and students’’, while other commenters technology, clock hours completed programs using distance education simply requested that the word asynchronously can be adequately continue to be subject to the general ‘‘synchronous’’ be removed from supervised and monitored, provided the requirements in the definition of paragraph (1)(iv). The commenters institution maintains the appropriate ‘‘distance education,’’ which requires explained that removing the word technological resources and internal regular and substantive interaction synchronous from the definition would controls. We disagree with commenters between students and instructors. In allow institutions who wish to offer who indicated that learning technology such programs, some, but not all, clock clock hour programs synchronously or is not yet capable of monitoring student hours would need to involve asynchronously, or a combination of engagement in this manner, especially substantive interaction between both, the flexibility and opportunity to since the Department has already students and instructors. prepare the twenty-first century reviewed and approved clock hour Changes: We have modified workforce in engaging and innovative programs that used online learning paragraph (1)(iv) of the ‘‘clock hour’’ ways. platforms that are capable of the definition to express that a clock hour Discussion: We are persuaded by the required monitoring. includes a synchronous or comments that preventing institutions The Department remains concerned asynchronous class, lecture, or from offering instruction by about the possibility that clock hours recitation where there is an opportunity asynchronous means is unnecessarily offered asynchronously could be used as for direct interaction between restrictive and counter to the purposes a means to complete unsupervised instructors and students. We also added of this rulemaking. The emergence of homework assignments rather than a new subordinate paragraph to include, the COVID–19 pandemic has illustrated coursework that otherwise would have as part of the definition of a clock hour, the need for institutional and student occurred in the classroom, which is 50 to 60 minutes of active participation flexibility with regard to the time and prohibited under the Department’s in an asynchronous learning activity place that coursework is completed, and longstanding policy for clock-hour involving academic engagement in a number of licensing agencies are also programs. Our position is that the which a student interacts with creating new flexibilities for the use of requirement for supervision of a clock technology that can monitor and asynchronous learning in clock hour hour in an asynchronous learning document the amount of time that the programs. Asynchronous learning environment is met when the institution student participates in the activity. allows students to design their own is capable of documenting the specific Comments: One commenter urged the learning schedules around the demands form of academic engagement associated Department to provide flexibility to of work and family that often interfere with the activity—for example, institutions with distance education with class activities offered only at asynchronous participation in an clock hour programs, whether taught in
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synchronous or asynchronous learning education. We also disagree with the precisely enough. The commenter environments, such that when commenter that the technology needed pronounced that a vague seat time monitoring clock hours, the institutions to perform this monitoring does not requirement may cause undue be given the flexibility to assign clock exist or that it cannot be obtained by challenges for an institution with hours based upon the assignments institutions and students. The rigorous accrediting agencies at the provided to students as long as there is Department has seen demonstrations of regional and/or professional level. adequate communication between the such technology by institutions that Discussion: The Department does not instructor and students. The commenter offer clock hour programs and was establish academic requirements for mentioned that providing the flexibility convinced that the technology was both educational programs, including clock to monitor that instructors are providing viable and appropriate for use in hour programs. Under the Department relevant assignments equal to the monitoring clock hours completed of Education Organization Act, such number of clock hours for which a asynchronously. requirements remain within the student is enrolled would be adequate Changes: None. purview of accrediting agencies and since the quality of the educational Comments: One commenter asserted States, which are free to set program has been reviewed and that the Department’s proposed clock requirements they feel appropriate for monitored by the school’s accrediting hour definition fell short of its stated what is considered successful agency. goal in the NPRM ‘‘to remove barriers completion of a clock hour in each Two commenters indicated that that institutions face when trying to program.8 This longstanding approach monitoring each student’s time spent on create and implement new and to the oversight of academic academic engagement would be innovative ways of providing education requirements recognizes the autonomy challenging given the cost and to students.’’ Specifically, the of postsecondary institutions and the availability of current technology. One commenter suggested that the modern- unique qualifications of their of those commenters indicated that it is day use of a calculation of seat time to accrediting agencies and States to currently impossible to properly measure student learning and progress respond to issues of academic quality. monitor and track a student’s is grounded on a false premise, Changes: None. attendance in 50 out of 60 minutes for especially considering today’s online Comments: One commenter urged the each clock hour via distance education technologies, including artificial Department to maintain the due to a lack of institutional means and intelligence and adaptive learning tools. requirements listed under paragraph (3) technological uniformity. In addition, The commenter opined that since the requiring programs to meet all clock the commenter expressed a concern that definition of a ‘‘clock hour’’ is not hour limitations or criteria established the notion that technology has defined in title IV, the Department by school accrediting agencies, States, sufficiently advanced to permit should consider removing the definition and applicable licensure bodies. The institutions to conduct remotely of ‘‘clock hour’’ from § 600.2 and commenter also expressed support for synchronous, face-to-face instruction instead, rely on accrediting agencies, as limiting clock hours via distance with students and to monitor the exact the entities that set standards on education to synchronous programs in amount of time students participate in academic quality, to provide academic the final rule because monitoring a learning sessions is flawed because it is oversight of institutions’ policies student’s completion of a clock hour in based on the premise that both the relating to the measurement of student an asynchronous program would be instructors and students can obtain, learning and progress. virtually impossible. operate, and monitor the required Discussion: We disagree that the use The commenter stated that monitoring devices needed to properly conduct of clock hours to measure a student’s asynchronous learning would diverge distance education learning. The progress for purposes of the title IV, too much from the proposed clock hour commenter asserted that the Department HEA programs prevents institutions definition and the Department would would be best served by dropping the from using innovative technology or most likely be unable to assess the new clock hour definition and instead, instructional methods. We believe that minimum technology needed for focusing on ensuring that an adequate it is vital for institutions to be able to institutions to adequately monitor amount of work is being completed award and disburse title IV, HEA asynchronous distance education rather than mandating a set amount of assistance using clock hours as a learning. time be spent on coursework. measurement of student progress Discussion: We do not believe that it Discussion: While we agree that it because that form of measurement still would be impossible for an institution should be possible for a student to earn aligns with many Federal and State to maintain the appropriate technology clock hours through participation in licensure requirements for a variety of and procedures to monitor and asynchronous online learning activities, professions. This alignment ensures that document clock hours earned based on we disagree that an institution can institutions that are already required to completing asynchronous educational measure such clock hours without monitor and document a student’s activities. However, we agree that it is monitoring a student’s actual successful completion of clock hours for important to ensure that institutions participation in those activities. A clock other purposes can use that monitoring comply with any requirements set by hour is a period of 50 to 60 minutes in to demonstrate that the student has accrediting agencies or State licensing a 60-minute period spent receiving made progress for purposes of the title or approval agencies regarding clock instruction or actively participating in a IV, HEA programs rather than requiring hours and intend to retain that particular educational activity, and such institutions to perform a component of the clock hour definition. institutions are responsible for cumbersome and potentially Changes: None. measuring the amount of time that burdensome conversion of clock hours students spend in such activities. The to credit hours or some other equivalent Definition of Credit Hour (§ 600.2) Department has never permitted measure. Comments: Numerous commenters institutions to award clock hours based Changes: None. expressed their overall support for the on estimates of completed work and Comments: One commenter expressed proposed changes to the definition of a does not intend to do so for clock hour concern that the clock hour definition programs offered through distance does not define student seat time 8 See 20 U.S.C. 3403(b).
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credit hour, with several of those ‘‘credit hour’’ for other academic measurements of student work, commenters specifically asking that the activities as established by the academic calendars, disciplines, and Department make no changes to the institution be consistent, by institution degree levels. This new language consensus language agreed to by and course, between requirements for actually deemphasizes the strict negotiators. Some of this support was on-campus and on-line monitoring of measure of learning time. qualified to varying degrees, ranging student work. Although the Department takes from observations that the credit hour is Discussion: We appreciate the general seriously any identified risk to student a less than ideal measure of student support for our proposal to broaden the privacy, the commenter was not specific progress to a request on the part of two definition of ‘‘credit hour’’ in a way that as to what those risks are. Finally, with commenters concerned about the rule’s focuses on student learning rather than respect to the potential consequences of enforceability that the Department seat time and is flexible enough to these proposed rules being available for restore the requirements in §§ 602.24(f) account for innovations in the delivery public review, we believe the comment and 603.24(c) (84 FR 58931) requiring models used by institutions. Even period following publication of the that accreditors and State agencies among those commenters whose NPRM in the Federal Register provided respectively, conduct review and support was tempered with reservations such an opportunity. evaluation of the reliability and over the proposed definition of a ‘‘credit We further disagree with the accuracy of the institution’s assignment hour’’ either adhering too closely to the commenter who asserted that the of credit hours. current definition or broadening it too Department made proposals to change One commenter expressed opposition much, there was strong agreement that the definition of ‘‘credit hour’’ without to the revised definition of ‘‘credit no changes should be made to the any evidentiary basis or support, hour’’ based on concerns that changing consensus language in the NPRM. rendering them legally insufficient the definition of ‘‘credit hour’’ to focus In response to those commenters who under the APA, or that it failed to on student learning time may pose new expressed support for the proposed present evidence during the negotiated risks to students and their privacy. The changes to the definition of ‘‘credit rulemaking that would justify changing commenter offered that if recording of hour’’ but asked that the Department the definition of ‘‘credit hour.’’ In individual learning time becomes restore the requirements in current preparation for the subcommittee desirable initially for credit hour §§ 602.24(f) and 603.24(c), as previously meetings on distance learning and validation, it may become desirable for explained in the preamble to the innovation, the Department produced individual student measurement, and November 1, 2019 final rule on State several position papers outlining its that the potential consequences of this Authorization and Accreditation (84 FR reasons and justifications for all should be available for public review. 58875), we continue to believe the proposed rule changes under Another commenter asserted that the agency review requirements are consideration by that subcommittee, Department should maintain the unnecessarily prescriptive and including those related to the definition definition of ‘‘credit hour’’ in the NPRM administratively burdensome without of a credit hour. The proposed but that the Department made proposals significantly improving accountability definition was discussed at length in the to change the definition without any or protection for students or taxpayers. subcommittee and again at the evidentiary basis or support, rendering However, we note that the ‘‘credit hour’’ negotiating table. A detailed, written them legally insufficient under the APA. definition in both current and proposed discussion of the Department’s reasons The commenter asserted that by failing § 600.2 requires that the amount of for proposing these changes is contained to present evidence during the student work determined by an in the April 2, 2020 NPRM on pages negotiated rulemaking that would institution to comprise a credit hour be 18646 and 18647. However, we justify a change, and by failing to approved by the institution’s accrediting appreciate the commenter’s overall suggest in the NPRM that the agency or State approval agency. support for the consensus language. Department has support to justify those Moreover, nothing precludes an In response to the commenter who original proposals now, the Department accrediting agency or State authorizing expressed concern that the proposed has no choice but to maintain the agency from examining or questioning definition of ‘‘credit hour’’ does not consensus definitions included in the an institution’s credit hour policies account for transfer hours, we note that NPRM. either as part of a routine evaluation of credit hours, as they pertain to the title Concerned that the proposed that institution’s academic programs or IV, HEA programs, are a measure of definition of ‘‘credit hour’’ does not as the result of specific concerns. student workload necessary to adequately account for transfer credits, We disagree with the commenter who determine enrollment status and award one commenter offered revisions to the opposed the changes to the definition of amounts. Credit hours that an amendatory text in the NPRM that ‘‘credit hour’’ proposed in the NPRM on institution accepts on transfer have no would change the characterization of a the basis that an increased focus on effect on making these determinations credit hour as, ‘‘an amount of student student learning time may pose new and are, therefore, not integral to the work’’ to ‘‘work by a student with risks to students and their privacy. The definition of a credit hour for title IV average, but appropriate, preparation definition of ‘‘credit hour’’ as proposed purposes. The commenter identified . . .’’ and include recognition and in the NPRM does not place an several problems with respect to transfer consideration of the importance and increased emphasis on learning time. hours, including the disparity among widespread usage of credit transfer Time-based requirements relative to institutions in how transfer hours are among institutions. The commenter also classroom instruction and other considered and accepted. suggested that the Department address a academic activities included in the While we agree on the need to address perceived disparity between workload proposed definition of ‘‘credit hour’’ are challenges regarding transfer of credit, expectations of students in on-campus those found in the current definition. we do not believe that this definition is courses versus those offered through Additional language in the proposed the appropriate place to do so or that the distance education. The commenter definition clarifies that, in determining revisions to the proposed definition of proposed to stipulate the equivalent the amount of work associated with a ‘‘credit hour’’ suggested by the amount of work as required in credit hour, an institution may consider commenter would change the way paragraph (1)(i) of the definition of a variety of delivery methods, transfer hours are treated by
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institutions. With regard to any classified as instructors. One commenter commenters pointed out that the disparities that may exist between what also expressed support for the consensus agreement for the proposed is expected of students taking classes Department’s use of the plural definition of ‘‘distance education’’ offered through distance education and ‘‘instructors’’ rather than ‘‘the reflected a thoroughly discussed what is expected of students enrolled in instructor’’ because it would enable compromise among negotiators. classes offered on campus, we do not more people to teach as a team and Several commenters contended that it agree with the commenter that these can provide more individualized attention is imperative to clearly distinguish be addressed by revising the proposed to students. between distance education and definition of ‘‘credit hour.’’ Institutions Several commenters supported the correspondence courses and ensure that themselves set the academic standards Department’s proposed requirements for quality standards exist for distance for their programs. The definition of substantive interaction, indicating that education programs, especially given ‘‘credit hour’’ merely establishes a the definition supports a variety of the history of abuses related to reasonable measure of student activities needed for teaching and correspondence courses. The workload. We believe that the learning. One commenter indicated that commenters asserted that diluting the amendatory text, agreed to by defining and clarifying what constitutes proposed definition could result in negotiators, permitting an institution, in ‘‘substantive interaction’’ between online programs becoming eligible for determining the amount of work students and faculty would give Federal student aid even when the associated with a credit hour, to take institutions the ability to innovate programs do not offer the same quality into account a variety of delivery without fear of the loss of Federal of education or degree of connection methods, measurements of student student aid eligibility. Another between students and qualified work, academic calendars, disciplines, commenter indicated that the instructors. One of those commenters and degree levels, accommodates a requirements for substantive interaction urged the Department not to revert to its variety of modalities, including distance are appropriately adaptable because original proposal to allow accrediting education. they allow accrediting agencies to agencies alone to articulate Changes: None. approve different types of instructional requirements for regular and substantive activities. One other commenter was interaction and instructors with Definition of Distance Education supportive of the consensus language minimal Federal guidelines. One Comments: Numerous commenters relating to substantive interactions, commenter asserted that the expressed their support for the noting that while the Department’s Department’s original proposals for Department’s proposed definition of original proposal had defined changing the definition, later rejected in ‘‘distance education.’’ Many substantive interaction as an interaction the consensus language, would have commenters thanked the Department for that simply related to course material undermined the requirements for providing greater clarity and specificity under discussion, negotiators opposed regular and substantive interaction and to the definition. One commenter this language because it did not for the qualifications for an instructor highlighted several recent audits by the specifically address teaching and and urged the Department not to return Department’s Office of Inspector learning in the way that the consensus to those proposals. General (OIG) focusing on the language does. Other commenters pointed out that requirements for regular and substantive Several commenters also supported the requirements for regular and interaction and pointed to the large the Department’s requirements for substantive interaction exist in law amount of proposed liabilities in those regular interaction. One commenter because of past abuses in audits as a reason that the definition of indicated that the flexibility of the correspondence programs, particularly ‘‘distance education’’ needed to be definition was important given of veterans seeking to use educational clarified. Another commenter asserted variability across a wide range of benefits. One of these commenters noted that the changes modernize the program types and topics and helped that after passage of the 1944 definition and permits more flexibility limit administrative burden. Another Servicemen’s Readjustment Act of 1944 for postsecondary institutions to offer commenter supported the ability for (commonly known as the ‘‘GI Bill’’) educational programs. institutions to determine the number of hundreds of thousands of servicemen Several commenters were substantive interactions that are used their education benefits under that appreciative of the Department’s efforts appropriate based on the length and law to enroll in correspondence courses, to eliminate references to outdated amount of content associated with a but only approximately 10.7 percent of technology such as CD–ROMs. Other course. One commenter expressed those veterans completed their commenters indicated that the strong support for requiring both programs. That commenter also pointed definition holds institutions predictable opportunities for interaction out that Congress acted in the early accountable for providing students in and the prompt and proactive 1990s to address similar types of abuses distance education programs with monitoring of student engagement, in correspondence courses related to the communication and engagement with indicating that the requirements would title IV, HEA programs. Another qualified instructors on a predictable result in more affordable and accessible commenter noted that the OIG has and regular basis. pathways for students while ensuring repeatedly raised concerns about Many commenters supported the high-quality instruction. distance education and has addition of the concept of ‘‘qualified Discussion: The Department thanks characterized it as an area that poses instructors’’ who meet the instructional the commenters for their support. significant risk to the integrity of the requirements of an institution’s Changes: None. FSA programs. accrediting agency. One commenter Comments: Many commenters urged One commenter referred to research stated that the proposed definition the Department to maintain the that shows that Latino students enrolled would provide institutions with a regulatory language agreed upon in in online education have lower single, clear definition of ‘‘instructor’’ consensus with non-Federal negotiators academic and attainment outcomes than for financial aid purposes, that could for regular and substantive interaction in face-to-face courses and that help prevent confusion during audits and the requirements for instructors in interviews with such students highlight about which staff members can be distance education programs. Several the absence of a meaningful student-
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instructor relationship as a contributing ‘‘instructional team’’ into the definition interaction with students can fulfill the factor to those poor outcomes. Another of ‘‘distance education.’’ requirements of the ‘‘distance commenter referenced research that One of these commenters described education’’ definition for regular and suggests faculty-student interaction the use of instructional teams as a substantive interaction between plays a key role in a quality online practice that occurs in on-campus students and instructors. Note that education and that underprepared and settings across various fields of study accrediting agencies can choose to disadvantaged students tend to and that provides exceptional designate individuals as instructors who underperform and, on average, opportunity to students by allowing do not meet the traditional criteria for experience poor outcomes in such them to interact with several experts in faculty, and many already do in programs. That commenter also a given course. Another commenter instances, for example, where workforce referenced research that suggests online argued that explicitly addressing the experience may be more important to students desire greater interaction with concept of instructional teams in the teaching and learning than an advanced their instructors and that, in general, definition would acknowledge the degree. Accreditors are also permitted to online education has not improved reality that distance education is an designate an individual as an affordability, frequently costs more, and instructional team endeavor that does ‘‘instructor’’ meeting its requirements does not produce a positive return on not rely upon arbitrary distinctions only in specific situations, for example, investment. One commenter asserted between an instructor and someone where a less-experienced individual is that if the requirement for regular and involved in facilitating the delivery of teaching in a team setting with an substantive interaction is weakened, course content who is not considered an experienced instructor of record having there is a risk that inequities will instructor. responsibility for the course in general. increase between those students who One commenter argued that team- Given this degree of flexibility, we have access to substantive interaction based instructional models could be believe that the regulation as written with instructors and those who do not. complicated if substantive interactions provides ample opportunity for distance That commenter expressed that this is could only be provided by individuals education to occur with the use of an even more critical issue now that that met an accrediting agency’s instructional teams, but only when such institutions are moving online because requirements for instruction and noted use conforms with the requirements of of the COVID–19 emergency. that some types of interactions an instruction’s accrediting agency. Discussion: We agree that it is described under paragraph (3) of the Changes: None important for the regulations to clearly definition, including assessing or Comments: Several commenters distinguish between the definitions of providing feedback on a student’s expressed concern with the ‘‘distance education’’ and coursework, could be provided by Department’s proposal to replace the list ‘‘correspondence courses’’ and believe assessment specialists who do not meet of technologies in the definition of that the proposed definitions the definition’s requirements for a ‘‘distance education’’ with the phrase accomplish that goal. Whereas the qualified instructor. ‘‘other media.’’ definition of a correspondence course Conversely, one commenter objected Two commenters indicated that the describes interaction between students to the Department’s proposal to use the word ‘‘media’’ was not specific enough and instructors in such the course as term ‘‘instructors’’ rather than ‘‘the to limit the types of modalities that ‘‘limited . . . not regular and instructor,’’ arguing that doing so would could be used in distance education. substantive, and . . . primarily initiated allow quasi-professionals to teach more One of those commenters recommended by the student,’’ the definition of advanced subject matter as part of a that the Department add the phrase distance education requires regular and team. The commenter asserted that this ‘‘and other types of media’’ after listing substantive interaction between situation could result in such each type of technology. The other students and instructors and clearly instructors only tangentially monitoring commenter recommended that the explains the requirements for each student discussion rather than Department continue to add new media component of that definition. We also substantively engaging with students. types to the definition rather than agree that it is important to adhere to Discussion: The Department does not removing the existing types that were the agreed-upon language of the object to the use of instructional teams, listed. members of the subcommittee and full regardless of the modality of the One commenter suggested that the committee, who were able to reach coursework. Indeed, we support Department eliminate the list of agreement on the definition of the term innovative educational models that technologies that could be used to offer despite strong initial differences of provide additional support, both a program through distance education opinion on the matter. We agree with academic and otherwise, to support unless we plan to update the the commenters who referenced the student success. However, we believe appropriate formats on a regular basis importance of regular and substantive that the current regulatory language (for example, annually). interaction between students and accommodates the use of instructional Another commenter expressed instructors, particularly for students teams and no change is necessary in concern that replacing references to who are underprepared, and believe that order further encourage their use. types of media with the phrase ‘‘other the requirements for such interaction Regardless of the composition of an media’’ could cause institutional expressed in the definition strike the instructional team, the Department officials to interpret the phrase as the appropriate balance between assuring expects that such a team would include use of one type of media. interaction with qualified instructors qualified individuals with subject Discussion: We appreciate the and allowing institutions the flexibility matter expertise who are expected to commenters’ suggestions, but we do not to offer programs using innovative, instruct, guide, or otherwise respond to plan to update the list of acceptable student-oriented pedagogical questions from students about the technologies at this time. The HEA techniques. subject matter of a course or currently prescribes the types of Changes: None. competency. Such individuals, technologies that may be used for Comments: Several commenters assuming they meet accrediting agency distance education, and in this opined on whether the Department requirements for instruction, are the rulemaking the Department is not should incorporate the concept of an staff members whose substantive making changes to the statutory
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requirement, but is instead simplifying specific length of time that it considered success’’ with respect to a course or this list in the regulations by referring to be ‘‘regular’’ for purposes of this competency. This requirement is not to ‘‘other media’’ rather than including definition. intended to mandate that instructors all of the types of media that may be Another commenter asked how personally monitor each student’s used to deliver distance education. institutions would monitor a student’s engagement throughout each class Changes: None. engagement in distance education, session while also instructing, Comments: One commenter suggested particularly when an interaction occurs facilitating discussion, or responding to that the Department define during a videoconference where the questions from students. Instead, the ‘‘instruction’’ rather than ‘‘instructor’’ instructor is working to develop the requirement is intended to ensure that and use the definition of the former to student’s understanding of a particular instructors are generally monitoring inform requirements for the latter. topic while also attempting to monitor whether a student is engaged and Discussion: The Department chose to the student’s engagement. successful throughout a given course or clarify the requirements for an One commenter expressed concern competency and takes appropriate instructor for purposes of the definition that the regulations only require the action as needed. Such monitoring of ‘‘distance education’’ because the opportunity for interactions with could include evaluating a student’s term is specifically used in statute with instructors when needed. The level of participation in synchronous reference to distance education. commenter indicated that this lack of class sessions, but it could also involve Moreover, we believe that it is beyond mandatory proactive instruction, when monitoring the student’s activity on our purview to define the term combined with a lack of emphasis on course websites or materials; ‘‘instruction’’ given its broad faculty involvement, could lead to considering the quality of the student’s application in postsecondary education confusion about the distinction between assignments or responses to questions and the restrictions on the Department’s distance education and correspondence about course materials; evaluating the oversight of academic quality in the courses. The commenter recommended level of the student’s understanding of Department of Education Organization that the Department delete the words course materials during conversations Act. ‘‘the opportunity’’ from paragraph (5)(i) with instructors or performance on Changes: None. of the definition and delete ‘‘when exams; or other forms of monitoring the Comments: One commenter expressed needed’’ from paragraph (5)(ii) in order student’s engagement and success in the concern about the variability between to require proactive substantive course or competency. accrediting agencies regarding their interaction for every student. We agree with the commenters that requirements for an instructor in the Several commenters noted that the the word ‘‘scheduled’’ is more context of the definition of ‘‘distance regulations describing ‘‘regular descriptive and provides greater clarity education.’’ The commenter stated that interaction’’ included a requirement for than the word ‘‘regular’’ for purposes of each accrediting agency should have a the interaction to be ‘‘regular,’’ which describing ‘‘regular interaction.’’ strong definition of a quality instructor the commenters felt was redundant. Furthermore, the Department believes that includes requirements for Three of those commenters that the word ‘‘scheduled’’ more clearly qualifications to teach in the relevant recommended that the Department reflects the intent of the Distance competencies. Two commenters also replace the phrase ‘‘regular and Learning and Innovation subcommittee recommended that in cases where predictable basis’’ with the phrase and the full negotiating committee to students have multiple instructors, the ‘‘scheduled and predictable basis.’’ ensure that students are provided students should be informed of which Discussion: Given the variety of scheduled opportunities to interact with instructor is the instructor of record. distance education programs, instructors for which the students can Discussion: We believe that coursework, instructional modalities, prepare in advance. accrediting agencies are the appropriate and course schedules, we do not believe Changes: We have replaced the phrase arbiters of academic quality for it is practical to offer a specific ‘‘predictable and regular basis’’ with the postsecondary education, including timeframe for regular interaction. The phrase ‘‘predictable and scheduled regarding the appropriate requirements Distance Learning and Innovation basis’’ in paragraph (5)(i) of the for instructors. The Department is subcommittee strongly disagreed with definition. prohibited from creating regulations or that approach when it was presented, Comments: One commenter explained other requirements regarding the arguing that establishing such a that there are two types of distance academic quality of educational timeframe would either be overly education models that higher education programs under the Department of prescriptive or excessively complex. has developed—synchronous and Education Organization Act. Similarly, an institution cannot be asynchronous—and that the Furthermore, while it is true that there expected to ensure perfect attendance asynchronous model better reflects the may be variation among accrediting by students at each opportunity for realities of working adults, differing agencies regarding requirements for interaction with an instructor, which is levels of preparation, and the instructors, we believe this is why the Department, the subcommittee, importance of assessment. The appropriate given the different types of and the negotiating committee agreed to commenter pointed out that many new qualifications that may be needed frame the requirement as an students in higher education are ‘‘non- depending on the types of programs and ‘‘opportunity’’ for interaction rather traditional’’ and include a large number degree levels offered. than a required interaction. This of veterans and students with families. Changes: None. approach has the added benefit of The commenter asserted that these Comments: Several commenters allowing institutions to demonstrate students have schedules that they sought clarification regarding the compliance with the requirements at the cannot control and are better served by Department’s requirements for ‘‘regular program design level without asynchronous courses that support their interaction.’’ documenting each and every interaction needs for flexibility, while the One commenter indicated that between students and instructors. institution ensures that each student is interactions in asynchronous courses The requirements for regular evaluated based on the student’s may not be predictable and asked the interaction include monitoring a demonstration of mastery of the Department to clarify by providing a student’s ‘‘academic engagement and competency or course. The commenter
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recommended that the requirements for education’’ will offer a degree of commenter requested that the regular interaction point to interactions certainty to institutions both familiar Department remove the requirement for that are appropriate to the course and unfamiliar with online learning and at least two types of substantive modality and consistent with student will make it easier for institutions to interaction because it was unclear how success. shift to an online modality in the event often each type of interaction needed to Discussion: We agree with the of a pandemic in the future. occur and such ambiguity could cause commenter that distance education may, The Department’s recent COVID–19 considerable confusion for institutions in many cases, have the capability to distance education guidance for attempting to implement the address the needs of non-traditional institutions related to COVID–19 was requirements. students better than traditional intended to be temporary and was One commenter asked how classroom courses. However, we necessary to address the urgent need to instructors would calculate the time that disagree that the regulatory definition shift instructional operations online they spend on substantive interaction needs to include a reference to the very quickly. The Department has when one of the categories of such appropriateness of interactions with established a specific timeframe for that interaction includes responding to respect to course modality and student guidance and will expect institutions to questions about the content of a class. success for institutions to offer programs again comply with regulatory and Discussion: The Department’s that are sufficiently flexible. Though the statutory requirements when the requirements for regular and substantive definition of ‘‘distance education’’ waivers and flexibility related to interaction between instructors and establishes certain requirements for COVID–19 expire. students occurs at the course or interaction in online programs, the Changes: None. competency level. The Department’s Department defers to institutions and Comments: Many commenters asked intent with this definition is to ensure their accrediting agencies regarding questions about the Department’s that, for a given unit of study (for whether a program’s design involves requirements for ‘‘substantive example, a class such as English 101 or interactions that are appropriate and interaction’’ under the definition of a competency such as the ability to tailored to the needs of students. ‘‘distance education.’’ perform statistical analysis) a student Changes: None. A few commenters asked the has ample opportunity to substantively Comments: A few commenters asked Department to clarify whether interact with an instructor and the questions about the relationship substantive interaction was required to instructor (or instructors) monitor the between the Department’s final occur regularly at the ‘‘instructor level’’ student’s engagement and performance, regulations and the COVID–19 or the ‘‘course-competency level.’’ Two and provide scheduled opportunities for pandemic. of those commenters expressed concern interaction with the student as needed One commenter asked the Department that if the definition were applied at the on the basis of that monitoring. how its proposed definition of distance instructor level and not the course- Additionally, the regulations must education would prepare institutions for competency level, it could exclude apply at the course or competency level future pandemics and whether some aspects of an ‘‘unbundled’’ because they are designed to distinguish institutions should be required to instructional model. One commenter distance education from correspondence implement distance education training offered the example of assessment courses for purposes of exempting programs so that they are prepared to experts whose skills and expertise are distance education from the limitations shift to an online modality if and when tailored toward developing and scoring on the percentage of correspondence a pandemic prevents in-person assessment, as well as providing courses that an institution may offer. instruction once again. The commenter students with feedback, but who might Applying the regulatory requirements asserted that new options for learning not be considered to be ‘‘faculty.’’ That for distance education at the modalities would not prompt an commenter argued that the Department instructional unit level ensures that any increase in the number of students should indicate that its intent was for online course or competency that is enrolling in distance education courses substantive interaction to occur at the misclassified as distance education can and asked how the Department’s course/competency level. be included in the calculation of the proposal would reduce barriers to Several commenters asked the percentage of correspondence courses access for students given those trends. Department to explain the interaction that the institution offers for purposes of Another commenter pointed out that between the regulations requiring at the institutional eligibility requirements the Department’s recent guidance for least two types of substantive under 34 CFR 600.7. distance education related to the interactions and the requirements for The Department also applies the COVID–19 pandemic were inconsistent such interactions to be ‘‘regular.’’ One requirement for a substantive with the regulatory requirements for commenter asked whether both types of interaction to include at least two types distance education in the proposed rule. substantive interaction were required of activities listed in the definition at Discussion: Many institutions with throughout a semester, or whether an the course or competency level. The limited distance education offerings at institution could engage in one or the definition of ‘‘distance education’’ lists the time of the initial COVID–19 other activities at any time to meet the several different types of interaction that outbreak were unprepared for the requirements. A separate commenter can fulfill the requirements for impacts of the pandemic and did not asked whether the two forms of ‘‘substantive interaction,’’ including have adequate resources or the expertise substantive interaction needed to be direct instruction, assessment, to quickly shift to an online learning alternated on a regular basis or whether responding to questions about the modality. Though many institutions both forms of interaction were required course materials, facilitating a group were able to shift to an entirely new in the same class session. That discussion regarding the course content, modality, many were still faced with a commenter recommended that the or other instructional activities complicated and confusing regulatory Department either clarify this point or approved by the institution’s accrediting framework for distance education that strike the requirement for more than one agency. The definition requires an they had never encountered before. The form of substantive interaction, institution to perform at least two of Department’s hope is that clarifying and asserting that it could cause those activities, and since we apply the expanding the definition of ‘‘distance implementation challenges. Another regulation at the course or competency
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level, we also require an institution to regular basis or monitoring the student’s additional flexibility in the definition perform at least two of those activities academic engagement and success and was therefore preferable. over the period of time that the student ensuring that an instructor is Discussion: As one commenter noted, completes the course or competency. responsible for promptly and the Distance Learning and Innovation We believe that requiring a specific proactively engaging with the student— subcommittee’s recommendation was to timeframe, sequence, or frequency that as opposed to requiring the institution allow an institution to fulfill the the activities need to occur within that to take both of those actions. One of requirement for regular interaction by timeframe would be impractical and these commenters argued that the either maintaining predictable and would extend beyond our purview proposed regulations would require scheduled opportunities for interaction under the Department of Education institutions to adhere to a time-bound or by maintaining a system for Organization Act. model that may not be appropriate for evaluating a student’s engagement and The Department does not expect an the institution’s instructional modality progress and ensuring that an instructor institution to measure or document the or its students. Two other commenters followed up when appropriate. The exact amount of time that it or its subcommittee’s intent was to allow indicated that the intent of the Distance students spend on any particular type of institutions with self-paced programs to Learning and Innovation subcommittee substantive interaction. An institution is use other techniques other than was to allow institutions to choose the expected to maintain academic policies scheduling planned interactions, which type of ‘‘regular’’ interaction that best or procedures that create expectations in the past had led to perfunctory for faculty to substantively interact with suited the academic program and mandatory phone calls or class sessions students on a predictable and scheduled recognized that some institutions have that did not provide great benefit to basis and to monitor each student’s sophisticated technologies that monitor students. engagement and success and follow up student engagement and success and Despite the subcommittee’s concerns with the student as needed. alert instructors when students are not about requiring predictable Changes: None. engaged or are struggling with material. opportunities for interaction, the full Comments: One commenter These and other commenters also negotiating committee decided that it recommended that the Department add cautioned that requiring both was important for both conditions to be language requiring that institutions components of the definition could met. The committee believed that the using distance education ensure the result in a requirement that institutions proposed definition, requiring both accessibility of the learning materials adhere to a strict, time-bound schedule, predictable interactions and student and remain compliant with Section 508 which is counter to the format in many monitoring, offered sufficient flexibility of the Rehabilitation Act. The competency-based education programs. regarding the number and frequency of commenter argued that technology can Many commenters also argued that scheduled interactions based upon the be a limiting factor for individuals with many institutions lack the technology or length and intensity of the student’s disabilities if the systems used are not resources needed to monitor a student’s coursework. In a self-paced course or accessible. engagement and success. Another competency in which a student The commenter also asked the commenter indicated that the ‘‘and’’ approaches the coursework at his or her Department to add a requirement for would limit the variety of instructional own pace, the institution is not required instructors to be ‘‘flexible and work approaches that could be available to to schedule, for example, weekly with the student to determine the most institutions if one or the other action opportunities for interaction. Instead, appropriate communication mode to fulfilled the requirement. One the institution may decide that the maximize the student’s ability to commenter also noted that reverting to appropriate timeframe for scheduled participate.’’ The commenter indicated ‘‘or’’ between those paragraphs would opportunities for interactions is bi- that because some students struggled recognize the importance of a team weekly or monthly, or a different with communication technology, approach to instruction and co- frequency. Furthermore, by not instructors should customize their curricular activities. Several requiring mandated interactions, the definition does not impose a online programs to ensure that students commenters argued that reverting to bureaucratic requirement for a are being evaluated for their knowledge ‘‘or’’ would set expectations for distance of content rather than their ability to scheduled course session, but instead education, including monitoring each access technology. simply ensures that students are aware Discussion: The Department does not student’s engagement, beyond what is that there will be planned occasions that believe it is appropriate to regulate the expected or required for on-campus they will be able to interact with an Rehabilitation Act using the definition instruction. Several commenters also instructor about course content. of ‘‘distance education,’’ which is asserted that the change to ‘‘and’’ could Similar concerns were also raised by derived from the HEA. That said, we push institutions to adopt learning commenters about requiring more strongly support the intent of the analytics tools to track student progress, traditional class-based online programs Rehabilitation Act and expect every which could increase the cost of to maintain a system for monitoring institution with a distance education educating students and introduce student engagement and interacting program to adhere to that law’s statutory privacy or other ethical concerns. One with the students on that basis. We and regulatory requirements. commenter pointed out that requiring disagree with several commenters that Changes: None. institutions to implement both institutions would need to purchase Comments: Many commenters components of the requirements for expensive software to track and monitor requested that the Department replace regular interaction could prevent them each student’s online activities to the ‘‘and’’ between paragraphs (5)(i) and from adjusting quickly to market determine whether the student was (ii) of the definition with ‘‘or’’ in order demands and emerging technology. sufficiently engaged. While such to allow an institution to fulfill the Finally, one commenter pointed out that software would meet the requirement if requirement by taking either of the the Department’s OIG would rely upon it were part of a system for monitoring actions in paragraph (5)—providing the the new regulatory definition of and interacting with students when the opportunity for substantive interactions ‘‘distance education’’ when assessing an need arose, it is not a required element with the student on a predictable and institution’s compliance, suggesting that for regular and substantive interaction.
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The Department’s expectation is that online chat or videoconference) for • Instructors are responsive to instructors take a proactive approach to students to interact about the course students’ requests for instructional determining when students need material, regardless of whether the support. assistance and then offering that students chose to make use of this The Department will evaluate assistance, and this could be done either opportunity or interact with the whether an instructor meets an using sophisticated systems for instructor at the scheduled time. accrediting agency’s requirements by monitoring student activity or more However, if an institution does not offer reviewing the agency’s written traditional person-to-person evaluation such opportunities for interaction on a standards and any communication or through the use of tests and quizzes. regular and scheduled basis in an online between the agency and the institution The required ‘‘monitoring’’ could program and instead relies solely upon regarding the agency’s requirements or consist of evaluating each student’s students to initiate interactions with whether the instructors in question met performance in regular online class instructors, it would not meet the such requirements. If the Department is sessions or in regular assignments that requirements for regular and substantive unable to determine whether the have been turned in. This type of interaction between students and instructor meets the agency’s monitoring is common to nearly all instructors and the online program requirements by reviewing such written postsecondary programs and has been would be considered to be taught using materials, it may contact the agency to performed since before the internet correspondence courses. seek a determination on the matter. existed. Changes: None. The Department does not require an Given all of these factors and the level Comments: Several commenters asked institution to monitor or document of importance accorded by the how the Department would oversee every interaction between an instructor negotiating committee to the use of various aspects of the definition of and a student to demonstrate that it has ‘‘and’’ between paragraphs (5)(i) and (ii) distance education. One commenter fulfilled the requirements for regular of the definition, we decline to revert to asked how the Department would assess and substantive interaction. However, the word ‘‘or’’ between those whether an institution’s instructional we encourage institutions to consider paragraphs. activities were approved by the whether they have adequate means of monitoring online programs to ensure Changes: None. institution’s or program’s accrediting Comments: One commenter proposed that they continue to meet all the agency in audits or program reviews. that the Department should provide an conditions of the definition. In The commenter also asked whether outline of the new definition of overseeing the requirements for regular accrediting agencies would be required ‘‘distance education’’ to offer clarity to and substantive interaction with to create a list of approved instructional government officials and citizens about instructors, the Department will activities or whether the Department the changes to the definition. determine whether an institution has would allow agencies to have more Discussion: We thank the commenter established sufficient internal controls ambiguous standards that are applied on for this suggestion and agree that an to demonstrate that it has established (1) a case-by-case basis, which could result outline could make the changes clearer. appropriate academic policies and We plan to publish a clear description in most or all institutions meeting the procedures for its instructors to of each of the changes to the definition requirements. Another commenter implement these provisions; and (2) a of ‘‘distance education’’ in the FSA asked what oversight mechanisms the system for monitoring or periodically Handbook after the changes become Department would use to verify the evaluating its online programs to ensure effective. amount of substantive interaction that its instructors continue to observe Changes: None. reported by institutions. such policies over time. Comments: Several commenters asked Discussion: The Department’s Comments: One commenter, arguing the Department to clarify whether oversight of the requirements for regular that direct instruction was at the core of interactions that were initiated by a and substantive interaction between higher education, recommended that the student would meet the requirements students and instructors will focus on Department require ‘‘substantive for regular and substantive interaction five critical factors that differentiate interaction’’ to include direct between students and instructors. One distance education from correspondence instruction in addition to two other of those commenters sought clarification courses. The Department will seek to elements. regarding whether the Department determine whether— Discussion: The required elements for intends to require evidence of • The institution’s online instruction substantive interaction were determined instructor-initiated interaction, student- is delivered through an appropriate in consensus with the negotiating initiated interaction, or both. form of media; committee, and the Department does not Discussion: The Department does not • The instructors with whom believe it would be appropriate to consider substantive interactions students regularly and substantively diverge from that agreement to narrow initiated by students to meet the interact meet the requirements of the the types of program offerings that requirements for regular interaction in institution’s accrediting agency for would meet the Department’s definition the definition of ‘‘distance education.’’ instruction in the subject matter; of ‘‘distance education.’’ Furthermore, An institution meets the requirement for • Instructors engage in at least two we do not believe it is advisable to regular interaction between students forms of substantive interaction meeting require regular direct instruction in all and instructors by, in part, providing the regulatory requirements for the distance education programs given the the opportunity for substantive course or competency; proliferation of promising new interactions with the student on a • The institution has established educational models that do not rely on scheduled and predictable basis scheduled and predictable opportunities regularly scheduled instructional commensurate with the length of time for substantive interaction between sessions. The Department wishes to and the amount of content in the course students and instructors and create remind the commenter that in the case or competency. This requirement could expectations for instructors to monitor of in-person classroom-based be met if instructors made themselves each student’s engagement and instruction, most schools are not available at a specific scheduled time substantively engage with students on required to take attendance. It the case and through a specific modality (e.g., an the basis of that monitoring; and of credit hour programs, it is the job of
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the institution to provide the students. That commenter also sub-regulatory guidance, in particular opportunity and it is the job of the reiterated a proposal that had been Dear Colleague Letter GEN–14–23, student to take it. proposed by one of the non-Federal which provides additional explanation Changes: None. negotiators during negotiated regarding the meaning of ‘‘regular and Comments: One commenter expressed rulemaking: That the Department substantive interaction’’ with respect to dissatisfaction with the Department’s require institutions to report, for distance education. proposed definitions of students who are enrolled in programs Discussion: We disagree that the ‘‘correspondence course’’ and ‘‘distance in which at least one course can be statutory requirements for ‘‘regular and education,’’ stating that the requirement completed online, whether each substantive interaction’’ for a distance for ‘‘constant communication’’ initiated recipient of title IV, HEA assistance is education program are sufficiently clear by the instructor in distance education enrolled exclusively online, exclusively that a regulatory definition is not was unfair and would hinder students as a brick-and-mortar student, or as a needed. For more than a decade since who need flexibility with respect to the hybrid student in both online and brick- the statutory definition of ‘‘distance time and place that they interact with and-mortar instruction. One commenter education’’ was first created, their instructors. called for a demonstration program for institutions have expressed confusion Discussion: The proposed definition competency-based education authorized about the practical meaning of the term of ‘‘distance education’’ does not require by Congress that would test and have argued that the ambiguity of constant communication between replacements for the credit hour and what constitutes regular and substantive students and instructors and in fact only allow institutions to reasonably interaction have hampered innovation requires scheduled opportunities for experiment with different models of as a result of fears of non-compliance interaction with qualified instructors interaction with students, but argued and audit or program review findings. and a system for monitoring student that in lieu of such a program no Moreover, the concept of ‘‘regular and engagement and success. We believe changes should be made to the substantive interaction’’ is an important these requirements are reasonable and consensus regulations. differentiating factor between distance will permit substantial flexibility for Discussion: We agree with the education and correspondence courses, institutions to create new educational commenters who suggested that which, if improperly understood, could models that place the student, rather additional data regarding the use of result in institutional ineligibility for an than the instructor or the institution, at distance education would be helpful; institution that suddenly becomes aware the center of the learning exercise. however, we do not believe that that it has been offering more than half Changes: None. collecting such data through the of its courses or enrolling more than half Comments: Several commenters National Student Loan Data system is of its students through correspondence emphasized the importance of the appropriate vehicle for that data courses. We also disagree that the improving the quality of information collection to occur. We will consider the definition, as currently written, would and oversight related to distance feasibility of the other suggestions be impossible to meet if it were offered education. offered by commenters for collecting in a classroom setting, since scheduling One commenter said that while some data related to students who are class sessions and performing ongoing information exists about distance enrolled in distance education. The monitoring of each student’s education in the Integrated Department does not have the authority performance and engagement in class Postsecondary Education Data System without action by Congress to develop are traditional teaching functions that (IPEDS), the data are not current and a demonstration program with waivers do not require the use of sophisticated include only the number of students that exceed the Department’s authority software systems. enrolled in distance education courses under the Experimental Sites Initiative. We also disagree that the definition of and completing distance education Changes: None. ‘‘academic engagement’’ necessarily programs. The commenter also Comments: One commenter includes regular and substantive indicated that the National Center for recommended that the Department interaction between students and Education Statistics (NCES) sample eliminate the regulatory definition of instructors and can be used in lieu of a surveys collect some information about ‘‘regular and substantive interaction’’ for description of those requirements in the engagement with distance education, distance education entirely, arguing that regulations. While substantive but because those surveys are based on there is no reason to impose additional interaction with an instructor related to samples and are not conducted requirements beyond what is in the a student’s coursework is certainly a annually, their usefulness in answering statute given advances in technology form of academic engagement, it is not policy and research questions is limited. that permit detailed monitoring of a synonymous with the broader concept The commenter argued that the student’s online activities. The of academic engagement. Department should improve timely data commenter suggested that the Finally, the Department agrees that it collection about distance education Department is not obligated to define is not required by law to continue to given the significant number of students ‘‘regular and substantive interaction’’ in abide by the guidance in Dear Colleague who enroll in that format, the a way that would prevent many on- Letter GEN–14–23, and plans to retract uncertainty about future reliance on ground courses from meeting those and revise aspects of that guidance as distance education options, and the requirements. The commenter further well as guidance in Dear Colleague importance of evaluating regulations advised that the Department’s definition Letter GEN–13–10, related to the related to distance education. The of ‘‘academic engagement’’ was application process for direct commenter suggested adding a field for sufficient to eliminate any confusion assessment programs, that will no the distance education status of enrolled that had arisen about distance education longer apply upon the implementation title IV recipients in the National because it is widely understood that of these regulations. Student Loan Data System (NSLDS). ‘‘regular and substantive interaction’’ is Changes: None. Another commenter suggested that the a descriptive term for ‘‘academic Comments: One commenter Department require institutions to engagement.’’ Finally, the commenter recommended that the Department establish a new location with the noted that the Department is not include the concept of ‘‘co-curricular’’ Department for exclusively online required to follow or defer to its prior education in the definition of distance
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education, in particular with regard to technologies but indicated that Discussion: Only individuals the requirements for substantive innovation could occur in the context of responsible for delivering course interaction. The commenter proposed faculty interaction with students. The content and who meet the qualifications that the definition be revised to express commenter expressed concern that the for instruction established by an that distance education could be either requirements for distance education in institution’s accrediting agency can curricular or co-curricular. the proposed definition would not be fulfill the requirements for regular and The commenter asserted that such the same as those for other modalities. substantive interaction with students. revisions would recognize the Another commenter expressed the The Department does not prohibit other importance of co-curricular activities, opposite view, arguing that the forms of substantive interaction that do which the commenter defined as Department’s OIG had raised concerns not involve qualified instructors, but activities associated with and about replacing the word ‘‘instructor’’ under the statutory definition such complementary of the curriculum. The with the word ‘‘faculty’’ in the interaction cannot meet the commenter argued that, for many ‘‘Promoting Real Opportunity, Success, requirements in the definition of students who enroll in distance and Prosperity through Education ‘‘distance education.’’ Interactions with education programs, particularly adult Reform Act’’ (PROSPER Act), which was artificial intelligence, adaptive learning learners, co-curricular learning plays a introduced in 2017. The commenter systems, or other forms of interactive critical role in enhancing the student noted that the OIG believed that using computer-assisted instructional tools experience and helping to ensure the word ‘‘faculty’’ in the statutory qualify as types of ‘‘academic student persistence and success and that definition of ‘‘distance education’’ engagement,’’ but in this limited context such learning has also played a similar would allow a school to qualify for full those forms of engagement do not meet role in ground-based programs. participation in the FSA programs based the statutory requirements for regular Discussion: The Department agrees on email contact between students and and substantive interaction between with the commenter that co-curricular faculty on matters unrelated to the students and instructors. activities—which are generally aligned subject matter of a program. While we agree with the commenter with and designed to complement the Discussion: Though we do not agree about the importance of human academic curriculum—are useful and with the level of concern that was raised interaction in this definition, we do not often vital components of a by the Department’s OIG regarding the believe the commenter’s proposed postsecondary program that support use of the word ‘‘faculty,’’ or that the changes are necessary because the student persistence and success. use of that word in lieu of ‘‘instructor’’ definition currently requires regular and Because of the close ties between would substantially undermine the substantive interaction between academic coursework and co-curricular definition of ‘‘distance education,’’ we students and instructors; substantive activities, we believe that there may be interactions with machines or other occasions in which such activities are believe that the word ‘‘instructor’’ is more appropriate in this context. Given forms of technology that do not involve designated by an institution’s instructor would therefore not qualify. accrediting agency as types of the use of the word ‘‘instructor’’ in the statutory definition of ‘‘distance Changes: None. substantive interaction under paragraph Comments: One commenter asked the education,’’ we believe that it is (4)(v) of the definition of ‘‘distance Department to reconsider the need for appropriate to focus on a staff member’s education.’’ If an accrediting agency the specific language regarding distance instructional function, rather than that designates a co-curricular activity as a education in an accrediting agency’s person’s faculty role, when making a type of substantive interaction, scope of recognition and, in doing so, determination about whether the staff interactions involving that activity recognize that distance education is a person can fulfill the requirement for would meet the requirements of the more global term regarding instructional regular and substantive interaction with definition. However, we believe that delivery provided which can include students. The function of instruction including the concept of co-curricular online delivery of instruction and and the role of faculty are not activities in the definition would internships and field experiences, such necessarily synonymous; for example, increase the scope of activities more as clinical rotations. many institutions hire research faculty broadly than intended by the Discussion: While the Department that do not have teaching negotiating committee, and therefore recognizes that the term ‘‘distance responsibilities. decline to add the suggested language to education’’ is used to describe a wide the text of the definition. Changes: None. variety of activities in higher education, Changes: None. Comments: One commenter indicated the HEA requires a distance education Comments: Two commenters offered that the proposed requirements for program to be evaluated and approved conflicting opinions on whether the substantive interaction did not appear to by an accrediting agency with approval Department should emphasize the require any direct instruction or group of distance education in the scope of its concept of ‘‘faculty’’ rather than discussion. The commenter asked recognition by the Secretary. ‘‘instructors’’ in the definition of whether it would be possible for an Changes: None ‘‘distance education’’. institution to fulfill the requirements for One commenter argued that the substantive interaction without human Definition of Juvenile Justice Facility current requirements for instructors left engagement, e.g., through assessment (§ 668.2) too much discretion to institutions and and responses to students’ questions Comment: One commenter supported accrediting agencies. The commenter through software or other non-human the new definition of a juvenile justice recommended that the Department means. The commenter recommended facility to ensure that an otherwise should emphasize to accrediting that the Department include eligible student is not prohibited from agencies that faculty should be the requirements for ‘‘engagement between receiving a Federal Pell Grant solely primary ‘‘instructors’’ in postsecondary students and instructors’’ rather than because of confinement in such a education, regardless of modality. The merely a reference to ‘‘engaging facility. commenter was supportive of students’’ to make it clear that Discussion: We appreciate the support innovation and the use of artificial interactions need to be with human from the commenter. The Department intelligence or other innovative beings to meet the requirements. has received questions in the past about
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whether these facilities are correctional Changes: None. risk, nor are we aware of any needed institutions and whether students in the exceptions to the regulatory definition. Definition of Incarcerated Student facilities are eligible for Federal Pell As we will not exclude those in a (§ 668.2) Grants. Neither the HEA nor our ‘‘juvenile justice facility’’ from receiving regulations previously defined the term Comments: A couple of commenters the Federal Pell Grant, this change ‘‘juvenile justice facility.’’ Therefore, we expressed support for the revised would not require an additional FAFSA proposed to define this term in the definition of an incarcerated student. question or the need for other regulations to codify sub-regulatory One commenter supported the emphasis information. guidance published on December 8, on access to Federal Pell Grants while Changes: None. 2014 (Dear Colleague Letter GEN 14– in a juvenile justice facility, noting the 21). We also sought to clarify the term importance of funding to complete Direct Assessment Programs (§§ 600.10 as referenced in the Department’s postsecondary education coursework and 668.10) regulations and materials, including in and potentially obtain an academic Comments: Numerous commenters the definition of ‘‘incarcerated student.’’ credential. The commenter believed this supported the proposed changes Accordingly, we aimed to clarify that change would not only help those in intended to simplify and clarify students in juvenile justice facilities juvenile justice facilities, but society as regulations for direct assessment may receive a Federal Pell Grant if they a whole because education increases the programs. Commonly expressed among are otherwise eligible. likelihood of positive outcomes when those writing in support, was the belief Changes: None. students are released and reduces the that the proposed changes strike an Comment: One commenter provided likelihood those students will reoffend. appropriate balance between supporting both support and opposition to the Another commenter who supported the innovation, along with reducing the definition of ‘‘juvenile justice facility.’’ proposed change suggested that adding administrative burden on institutions, The commenter stated that the HEA the term ‘‘juvenile justice facility’’ to the and ensuring a level of oversight does not allow those who are incarcerated student definition might necessary to promote program integrity. incarcerated in a Federal or State prison imply that the Department is barring Discussion: We appreciate the to receive a Federal Pell Grant and access to Federal Pell Grants to students commenters’ support for these proposed quoted the statutory language. This serving in such a facility. changes. commenter then noted that our Discussion: We appreciate the proposed HEA change would define commenters’ support for the revised Changes: None. ‘‘juvenile justice facility’’ as being ‘‘incarcerated student’’ definition. We Comments: Several commenters included among the list of correctional do not agree that the revised definition expressed opposition to the proposed facilities in the definition of implies a prohibition on eligibility for a changes in § 600.10 requiring an ‘‘incarcerated student’’ for the purposes Federal Pell Grant for those in a juvenile institution to seek and obtain the of Pell Grant availability. The justice facility. In fact, we amended the Department’s approval of a direct commenter favored extending Pell definition of incarcerated student to assessment program only when the Grants to students in juvenile justice clarify that those held in a juvenile institution adds such a program for the facilities but opposed including juvenile justice facility are not considered to be first time, and when the institution justice facilities under the correctional incarcerated to ensure that these offers the first direct assessment institutions in the ‘‘incarcerated students continue to be eligible for program at each level of offering (e.g., a student’’ definition. The commenter Federal Pell Grants. first direct assessment master’s degree believed that the Department’s proposed Changes: None. program or bachelor’s degree program) definition caused confusion about what Comment: One commenter indicated than what the Secretary had previously constitutes an incarcerated student by that some criminal juvenile activity and approved. Overwhelmingly, these including juvenile justice facilities related records may be confidential and commenters asserted that, in proposing within the ‘‘incarcerated student’’ pointed out that individuals may be in not to require institutions to obtain definition. Finally, this commenter also a juvenile facility voluntarily or without approval for all direct assessment noted that the Department did not a court requirement. The commenter programs, the Department is acting include any evidence or studies from suggested that privacy concerns call for contrary to the intent of Congress as appropriate prison education experts on the Department to reconsider adding expressed in section 481(b)(4) of the how this change would clarify the ‘‘juvenile justice facility’’ to the HEA and exceeding its statutory availability of Pell Grants to students in incarcerated student definition. This authority. In the opinion of the juvenile justice facilities. commenter further noted that the Free commenters, this will result in Discussion: We proposed this new Application for Federal Student Aid diminished oversight protection, which definition to clarify that a person (FAFSA) does not include a question currently ensures that new direct incarcerated in a juvenile justice facility about incarceration and assumed that assessment programs receive adequate is not considered to be incarcerated in the Department would seek such scrutiny and that each new eligible a Federal or State penal institution, information. The commenter asserted direct assessment program is approved regardless of who operates or has that continuing to exclude the phrase by the Secretary. One commenter jurisdiction over the facility. This would simplify the regulation and avoid further suggested the Department was definition clarifies that students excluding necessary exceptions. attempting to ‘‘rewrite statute through incarcerated in a juvenile justice facility Discussion: The changes to the regulation,’’ with another commenter continue to be eligible for Federal Pell definition of ‘‘incarcerated student’’ do offering that, ‘‘The Department does not Grants. We believe the commenter was not substantively change our current have the authority to grant the Secretary mistaken. These regulations do not practice. We revised this definition for discretion to approve some direct change or contravene the HEA. clarity and to ensure access to Federal assessment programs and not others,’’ Additionally, the Department is Pell Grants for those in a ‘‘juvenile while another commenter expressed the unaware of available research on the justice facility.’’ We do not believe this opinion that in proposing these changes, interpretation of this term and is merely revised definition requires access to the Department has acted without codifying current practice. confidential records or poses a privacy supporting evidence or basis in law.
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Conveying disagreement with the A few commenters, in addition to result in diminished oversight or Department’s position, expressed in the asserting that the Department has a undermine the integrity of the title IV, NPRM, that once an institution statutory obligation to approve each HEA programs. As we indicated in the demonstrates it can capably administer new direct assessment program, preamble to the NPRM, the Department a direct assessment program, there is expressed the belief that direct does not evaluate academic content or little risk that the same institution assessment programs have access to a academic quality of programs, but would not properly administer other separate financing model from other instead focuses its review of a direct direct assessment programs, a few types of credit-hour or clock-hour-based assessment program on the institution’s commenters noted that programs of all programs. This supports (in the opinion title IV aid administration in such types at the same institution, within the of the commenters) heightened programs. Institutions typically use same credential level, can vary in oversight of direct assessment programs, information provided by the Department quality and value, making it crucial for achieved through requiring institutions in response to their initial approvals to the Department maintain its oversight to obtain Department approval for each inform subsequent applications for responsibilities consistent with its such program. direct assessment programs. Thus, statutory obligations. One of those One commenter maintained that the multiple evaluations of direct commenters also took issue with the current regulations for determining assessment at the same institution often Department’s reasoning that, it ‘‘will direct assessment program eligibility results in the institution providing review the institution’s processes should be unaltered because direct nearly the same information for each related to title IV aid administration but assessment programs are exempt from subsequent program, and results in an will not evaluate the academic content limitations on written arrangements. approval process that yields little value or academic quality of programs, except The commenter explained that, per to students, the institution, or taxpayers. to confirm that an accrediting agency § 668.10(e), direct assessment programs Moreover, the Department’s regulations has specifically approved each are exempt from the restriction that under § 668.10(a)(5) will still require an program,’’ arguing that the Department’s limits the percentage of learning institution’s accrediting agency to accreditation regulations, published in resources that are provided by other review and approve each direct November 2019, weaken the accreditor’s entities, making the risks of inadequate assessment program and an institution’s review and allow an accreditor’s senior oversight associated with such programs credit or clock hour equivalency staff, rather than the accreditor’s greater than they might otherwise be. In methodology and institutions will be appointed board of commissioners, to the commenter’s opinion, under the required to report new direct assessment review, approve, and monitor Department’s proposed regulations an programs to the Department in substantive changes to direct assessment institution that has already received accordance with new § 600.21(a)(12), programs. approval for a direct assessment which will provide the Department with program at a given credential level an opportunity to ensure that such The same commenter offered that the would be able to stand up subsequent programs have been appropriately Department failed to consider its OIG direct assessment programs at the same reviewed and approved by an audits of accreditors of competency- credential level where up to 100 percent institution’s accrediting agency. based education programs that of those programs is offered by outside The commenter who asserted that the demonstrated why accreditors cannot be entities without review from the Department did not consider the solely responsible for the evaluation and Department regarding the program’s findings of its OIG when proposing the oversight of direct assessment programs. eligibility. changes to the direct assessment In the opinion of the commenter, the Discussion: We disagree with the programs is incorrect. In developing Department further failed to consider commenters who assert that the proposed regulations relating to direct the OIG audits during the negotiated Department did not have adequate legal assessment programs, we considered the rulemaking or ask for public comment authority to require the Department’s findings in several of the Inspector on how the audit findings may approval of a direct assessment program General’s audits 9 over the past decade demonstrate whether accreditors’ senior only when the institution adds such a relating to direct assessment programs. staff alone will be able to adequately program for the first time, and when the In those audits, the Inspector General assess the administration and institution offers the first direct made a number of recommendations effectiveness of direct assessment assessment program at each level of that have already been adopted by the programs without the Department’s offering than what was previously Department’s Office of Postsecondary review, as mandated by statute. Finally, approved. Section 481(b)(4) of the HEA Education and FSA, including ensuring referencing case law (Connecticut Light states that ‘‘In the case of a program that School Participation Division & Power Co. v. Nuclear Reg. Comm., 673 being determined eligible for the first managers are fully informed of issues F.2d 525, 528 (D.C. Cir. 1982)), the time . . . such determination shall be raised during the review of direct commenter suggested that, the made by the Secretary before such assessment program applications, Department has failed to provide an program is considered to be an eligible accurate picture of the reasoning that program.’’ While Congress clearly 9 ‘‘Direct Assessment Programs: Processes for has led to the proposed rule, resulting intended for the Department to Identifying Risks and Evaluating Applications for in interested parties being unable to undertake an evaluation and approval of Title IV Eligibility Need Strengthening to Better Mitigate Risks Posed to the Title IV Programs,’’ comment meaningfully upon the an institution’s offering of direct published September 30, 2014; ‘‘The Higher agency’s proposals. The commenter assessment, whether or not the Learning Commission Could Improve Its Evaluation additionally cited Portland Cement requirement applies on a program-by- of Competency-Based Education Programs to Help Ass’n v. Ruckelshaus, 486 F.2d 375, 393 the Department Ensure the Programs Are Properly program basis is not prescribed and, Classified for Title IV Purposes,’’ published (D.C. Cir.1973) for the proposition that, therefore, left to the Department. September 30, 2015; and ‘‘The Western Association ‘‘It is not consonant with the purpose of We also disagree that requiring the of Schools and Colleges Senior College and a rulemaking proceeding to promulgate Department’s approval only for the first University Commission Could Improve Its rules on the basis of inadequate data, or direct assessment program that an Evaluation of Competency-Based Education Programs to Help the Department Ensure Programs on data that, [in] critical degree, is institution offers (or the first such Are Properly Classified for Title IV Purposes,’’ known only to the agency.’’ program at a new level of offering) will published August 2, 2016.
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monitoring and evaluating accrediting Comments: One commenter objected approved direct assessment model for agency approvals of direct assessment to the use of the word ‘‘abilities’’ in the the institution. programs, and referring concerns about definition of ‘‘direct assessment,’’ Discussion: We thank the commenter accrediting agency reviews of direct arguing that using the word ‘‘abilities’’ for the suggestion regarding a two-tier assessment programs to the Office of in this context poses new risks to process for the Department’s approval of Postsecondary Education’s students and their privacy. The direct assessment programs. Though we Accreditation Group. The Department commenter explained that abilities decline to adopt the suggestion, the also included a new provision in these might include psychological process for the Department’s evaluation regulations, in consensus with information that is confidential and of an institution’s first and subsequent negotiators, to require institutions to governed by healthcare information direct assessment programs will proceed address how they avoid paying title IV, protection laws. Citing the need to in a similar fashion. An institution’s HEA program funds for credit that might legally protect psychological abilities first application for direct assessment, be given students on the basis of prior data in ways that might differ from the or its first application at a new level of learning or life experience in their direct information protection protocols offering, will undergo the Department’s assessment applications. We agree with applicable to other education data, the full approval process and the institution the OIG that payment of title IV aid for commenter suggested that the potential will not be permitted to disburse title credit earned through prior learning consequences be provided for public IV, HEA program funds until it has remains an ongoing risk that requires review and comment before the received the Department’s approval. ongoing oversight and mitigation. We Department moves to make the change Subsequent programs at the same recognize that institutions offering final. level(s) of offering will be reported to direct assessment programs may use Discussion: Nothing in the the Department under new financing models that differ from credit Department’s regulations would permit § 600.21(a)(12), and this reporting hour versions of the same program; an institution to violate applicable process will require the institution to however, we believe that the risks privacy laws, including healthcare laws, submit to the Department a description associated with these models can be with respect to a student’s psychological of the program and evidence that its addressed in the institution’s first direct or cognitive abilities. The word accrediting agency has approved the assessment application and in ‘‘abilities’’ in these regulations refers program and the institution’s requirements for institutions to report only to the things that a student must methodology for determining credit or subsequent direct assessment programs demonstrate that he or she can do clock hour equivalency for the program. to the Department. Furthermore, many related to the competencies required in We also appreciate the commenter’s competency-based programs, including a direct assessment program. suggestion regarding a requirement for direct assessment programs, use Changes: None. an institution to notify the Department and seek approval for changed processes subscription-based financing models Comments: A few commenters, one of or policies for the institutions direct that are specifically addressed by the whom asserted that the NPRM failed to assessment offerings. Though we believe Department’s proposed completion- discuss reasonable alternatives, offered that it would be too burdensome to based approach to disbursement of title modifications they urged the implement this suggestion any time IV, HEA program funds in subscription- Department to consider. One of these such a change occurred, the Department based programs. The Department plans proposed the creation of a two-tier will evaluate such changes, and all to continue monitoring use of the application process. The first tier would regulatory requirements for an subscription-based disbursement system include all new programs and apply all institution’s direct assessment to determine whether additional of the application elements in the programs, during an institution’s changes are needed in the future. evaluation; the second tier would Finally, the commenter who indicated application for recertification. include additional programs offered at There was no discussion during that direct assessment programs are the same credential level, requiring only negotiated rulemaking regarding a exempt from the restriction on the descriptions of the program under requirement for accrediting agencies to percentage of learning resources that are consideration and an explanation of the use of C–BEN’s Quality Framework provided by other entities is correct, but how learning objectives are set and for Competency-Based Educational we disagree that this exemption should evaluated, without the necessity for the Programs 10 (Quality Framework) when prevent the Department from making institution to provide information on approving new direct assessment the changes to the regulations agreed the methodology for determining an programs, and we do not feel it is upon by the negotiating committee. The equivalent number of credit or clock appropriate to introduce new commenter argues that the Department hours. Another suggested modification requirements for accrediting agencies at will have no oversight over subsequent to what was proposed in the NPRM was this stage given that the Department has direct assessment programs added by an that the Department require accreditors already published its final rule on institution after its initial application, to utilize the Competency-Based accreditation. Additionally, though the but that is inaccurate. Institutions will Network (C–BEN) Quality Framework Quality Framework includes helpful still be required to submit materials for Competency-Based Educational principles for the design and related to their direct assessment Programs in evaluating direct implementation of high-quality programs through the Department’s assessment programs so that both competency-based programs and we reporting process under § 600.21(a)(12). students and policymakers can be encourage institutions to consider these This reporting requirement will permit confident the program has been principles when planning to offer the Department to continue to monitor designed to meet quality standards. A competency-based education programs, the types of direct assessment programs further recommendation was the the principles may not be appropriate that are offered by an institution after its inclusion of additional language in the for all accrediting agencies in all initial application and take action if it regulation which would require determines that there are irregularities institutions to notify the Department 10 www.cbenetwork.org/wp-content/uploads/ with a particular program or programs. and seek approval for substantively 2018/09/Quality-Framework-for-Competency- Changes: None. changed processes or policies within the Based-Education-Programs-Updated.pdf.
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circumstances and imposing them on all Discussion: We disagree with the for the usage of the word in each accrediting agencies could undermine commenters who asserted that it is not section. the autonomy of those entities and their necessary for the Department to require Changes: None. oversight of academic quality, which is an institution to clearly describe its Comments: One commenter offered protected by the HEA. Therefore, we methodology for developing credit or that, while the proposed regulation decline at this time to include a clock hour equivalencies for its direct states that title IV, HEA funds cannot be requirement for accrediting agencies to assessment programs. This requirement utilized for the portion of the direct use the standards described in the is vital to the integrity of the title IV, assessment program that the student is Quality Framework when approving HEA programs because the requirements awarded based on prior learning, it does competency-based education programs, for calculating awards and disbursement not define what activities comprise including direct assessment programs. amounts under those programs is still prior learning. In the opinion of the Changes: None. performed using credit or clock hours. commenter, this leaves the proposed Comments: A few commenters Though we acknowledge that the credit regulation open to a variety of indicated concerns over the proposed hour is an outdated method of interpretations and may result in requirement for an institution to measuring a student’s workload based miscommunication and confusion establish a methodology to reasonably on seat time and that developing an between the Department and equate each module in the direct equivalency system involves institutions. The commenter proposes that ‘‘prior learning’’ and ‘‘prior learning assessment program to either credit or administrative burden, there is currently assessment’’ be defined as follows: clock hours. Expressing disappointment no widely-accepted alternative ‘‘currency’’ for learning and workload.11 • Prior Learning—Learning obtained at the Department’s continued reliance outside of an academic context on clock or credit-hour equivalencies, Without such an alternative, the Department will continue to use credit (experiential, personal, professional, one of those commenters stressed the workplace, etc.) that has not been very nature of direct assessment or clock hour equivalencies in order to ensure that an institution’s choice of a officially awarded as academic credit. programs in utilizing direct assessment • Prior Learning Assessment—is the of student learning or recognizing the unit of measurement for a direct assessment program does not result in process that evaluates and recognizes direct assessment of student learning by prior learning and awards the others in lieu of credit or clock hours as an unfair or inflated determination of a student’s eligibility for title IV, HEA appropriate level of academic credit the measure of student learning, and based on established institutional/ offered that the Department’s focus on funds. Such a ‘‘currency’’ is also important in enabling students to organizational standards. Assessment of equating each module in the direct prior learning may occur before and assessment program to either credit or transfer credits between institutions. The Department encourages during (concurrently) credit bearing clock hours is inconsistent with the institutions and accrediting agencies to (title IV eligible) course and programs. HEA, which merely requires that any consider options for measures of student Discussion: We thank the commenter such assessment is consistent with the learning and workload that do not rely for the suggestions regarding how to accreditation of the institution or on credit hours but can be widely define prior learning in the context of program utilizing the results of the accepted and understood by the direct assessment regulations. When assessment (20 U.S.C. 1088(b)(4)). The practitioners and adopted by accrediting the term ‘‘prior learning’’ is used in same commenter further asserted that agencies. If the use of such a measure these regulations, it means learning that requiring institutions to craft, becomes prevalent in postsecondary occurred prior to the student’s implement, and explain methodologies education, the Department will consider enrollment at the institution or in a for creating credit or clock hour allowing institutions to rely upon that context other than the curriculum in equivalences is administratively measure for competency rather than which the student is enrolled (for burdensome and shifts the program’s requiring an equivalency to credit or example, the student’s workplace or focus away from student learning in clock hours. another academic institution). Prior favor of seat time. Though we agree with the commenter learning includes learning associated Another commenter suggested that who indicated that it was possible that with the transfer of credit from a prior the use of the term ‘‘module’’ in the use of the term ‘‘module’’ in this institution, since the credits earned § 668.10(a)(3) as the period measure of section could be conflated with the through transfer cannot be included in learning in direct assessment programs different usage of the term in the R2T4 a student’s enrollment status for is confusing since it is already used in regulations under § 668.22, we decline purposes of calculating eligibility for § 668.22, and in the NPRM further to make a change in this case. We title IV, HEA assistance. We agree with limited to describe courses in standard believe that replacing the word the commenter’s definition of ‘‘prior and nonstandard-term programs in ‘‘module’’ would require the use of learning assessment,’’ which means a relation to the return to title IV funds. another term that may result in a process for evaluating and recognizing In order to avoid this confusion the substantively different approach in the prior learning and awarding the commenter recommended that the direct assessment regulations. Because appropriate level of academic credit Department remove the term ‘‘module’’ we did not discuss such an approach based on established institutional/ in the direct assessment context and with the negotiating committee, nor organizational standards. We also agree instead require in § 668.10(a)(3) that include discussion of the issue in the that assessment of prior learning may ‘‘An institution must establish a NPRM, we decline to make the change occur prior to and during a student’s methodology to reasonably equate each at this time. Additionally, we do not enrollment at the institution. of its stated measures of learning in the believe that any confusion regarding the Changes: None. direct assessment program to either word ‘‘module’’ will undermine the Comments: One commenter suggested credit hours or clock hours . . .’’ (85 FR requirements in either § 668.10 or that competency-based education, as a 18698). This change, the commenter § 668.22 because of the different context less mature field, may not be ready for argues, would not alter the substance expansion. However, the commenter and meaning of the amendments in any 11 www.luminafoundation.org/files/resources/ indicated that it is important to make way. cracking-the-credit-hour.pdf. data available that might help
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researchers, practitioners, and others § 600.20(d)(1)(ii)(A) is not required to assistance starting new and innovative understand the field better and provide obtain approval to offer the additional programs. research and information that help program unless notified by the Secretary Discussion: The Department thanks future efforts by the Department or at least 30 days before the first day of the commenter for the suggestion. The Congress to enable innovation while class that the program must be Department has already proposed protecting students and taxpayers. The approved. The commenters stated that important regulatory flexibilities commenter offered several suggestions these current regulations create an without jeopardizing proper oversight. for the Department to collect and share unnecessary burden, make it more Further regulatory changes would risk data about direct assessment programs difficult to quickly respond to the needs violating the consensus agreement and that have been approved directly by the of employers, and duplicate the weakening important oversight of Department, including publication of a oversight of programs by State program reviews. The Department list of institutions that have been authorizing agencies and accrediting currently considers the past record of an approved for direct assessment and agencies. The commenters also institution in these reviews but agrees collecting information about tuition, supported the addition of provisions that some administrative processes retention rates, and completion rates for requiring that the Department take could be improved to provide more each direct assessment program. The prompt action on any materially timely responses, better communication, commenter also suggested complete application under § 600.20(a) and more consistent decisions. The disaggregating and identifying these or (b). Two commenters also noted that Department has already evaluated what programs on the College Scorecard. The it is very difficult for institutions to be it would take to make such commenter recommended against expected to wait until 30 days prior to improvements and hopes to implement requiring the collection or sharing of the start of the program to advertise or them soon but declines to make further data related to course-based enroll students in the program. One regulatory changes as the commenters competency-based education programs commenter also underscored the suggest. The Department also thanks the that do not require Department approval benefits of reduced redundancy while commenters for the suggestion on given the potential for increased burden. supporting the effort to minimize the streamlining processes in regard to Discussion: We thank the commenter impact of delays by the Department in COVID–19, but we believe the impacts for their suggestions regarding how to the program approval process. COVID–19 has on schools will not improve data on direct assessment Discussion: The Department agrees necessarily result in a larger number of programs and institutional with the commenters. Removing institutions that are placed on accountability. We believe that the § 600.20(d)(1)(ii)(B) will ease the provisional status. commenter’s suggestion of publishing a Changes: None. process of approving new programs and Comments: Several commenters list of approved direct assessment allow institutions to offer new programs programs and the institutions that offer disagreed with the Department’s in a timely manner to meet both student them is reasonable and we will evaluate contention that the changes in § 600.20 demand and workforce needs. The whether it is possible to post a public restore functions related to program Department agrees that the current list of such programs. However, because quality to accrediting agencies and State provision creates significant uncertainty the number of direct assessment authorizing agencies. Instead, these about whether an institution will be programs remains small, we do not commenters say that the approval allowed to offer a program until the believe that we should collect data for process relates to the requirements program has nearly begun, without a such programs exceeding what is related to access to title IV aid. tangible benefit in terms of oversight. It collected for other types of programs, Therefore, the commenters say, is not reasonable to expect institutions nor do we currently intend to provide institutions should be required to report to either enroll students in a program data on the College Scorecard their intent to establish new programs to that may not be allowed to operate or specifically related to direct assessment protect students and taxpayer funds. expect students to wait to enroll in these programs. We will consider doing so in The commenters also assert that the programs until 30 days prior to the start the future if the number of direct elimination of the list of elements the of the program. The Department seeks to assessment programs increases Secretary will consider when reviewing conduct proper oversight in a timely substantially. an application under this section was We agree with the commenter that manner without undue impact to not part of the consensus language nor additional data is not needed for course- institutions or students. As many was it explained in the NPRM and based competency-based programs. commenters noted, this oversight role therefore the change should be reverted Because there is no consistent statutory may also be duplicative of what is to the consensus language in the final definition of a competency-based overseen by accrediting agencies and rule. program that does not use direct State authorizing agencies. Discussion: The Department disagrees assessment, the Department does not Changes: None. with the assertions made by the feel that it is practical or useful to Comments: One commenter commenters. While they are correct that attempt to collect data about such encouraged the Department to consider the provisions of § 600.20 broadly relate programs, since the data would reflect a streamlining the proposed regulations to the Department’s oversight of access wide range of programs, many of which and processes for institutions on to title IV aid, the overwhelming have in common only the competency- provisional status. The commenter majority of these provisions are left based learning modality. suggested the Department either modify unchanged. Institutions continue to be Changes: None. the regulations or use its discretion to required to notify the Secretary of their streamline approvals for institutions intent to offer an additional educational New Program Approval (§ 600.20) with a strong record of compliance and program. The proposed regulations Comments: Many commenters stability. The commenter emphasized simply require the Department to act supported the removal of that the COVID–19 crisis may force an promptly and remove restrictions that § 600.20(d)(1)(ii)(B), which provides increasing number of institutions to be unnecessarily prevent an institution that an institution that is submitting a placed on provisional status and that from quickly developing new programs notice in accordance with such institutions may need quick in response to requests by students,
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employers, or others. It is to the benefit model addresses the unique nature of develop the talent needed to address of both students and institutions that competency-based and other self-paced economic and social challenges. The there be certainty well in advance that programs of study and further commenter expressed that shifting to a a planned program will be able to encourages institutions of higher more transparent, outcomes-focused operate. The Department intended that education to innovate by creating accountability system depends on the the amendatory instructions in the learning modalities that allow students ability of existing and new entities to NPRM would be consistent with the to learn at their own pace while access and use better data and consensus language adopted during the remaining eligible for title IV, HEA emphasized the importance of equity negotiated rulemaking. The amendatory program assistance. Another commenter and quality in any such system. instructions that were published, opined that the proposed subscription- Discussion: We agree with however, contained errors, which the based system supports postsecondary commenters about the importance of Department has corrected in this final access and affordability for working using data and evidence in the rule. The description of the changes to adults. One commenter stated that the Department’s oversight of subscription- § 600.20 in the preamble to the NPRM proposed subscription-based model based programs, and that such accurately reflected the consensus balances flexible timelines for students information is an important component language. with completion requirements that of an outcomes-based accountability Changes: None. maintain the integrity of the title IV, framework. To those ends, the Comment: One commenter noted that HEA programs. Another commenter was Department plans to monitor which the amendatory language appeared to supportive of the changes in timeframes programs use the subscription-based contain drafting errors or changes that associated with disbursements for model and will evaluate student-level were not appropriately described, which subscription-based programs and data, such as disbursement amounts, differed from consensus language. The indicated appreciation for the ability for debt levels, and withdrawal rates for commenter urged the Department to institutions to offer early disbursements students who are enrolled in such reopen the NPRM for additional in such programs, asserting that the programs. This evaluation will take the comment. The commenter noted that model’s completion requirements would place of the Department’s CBE the proposed amendatory language be essential to encouraging and Experiment, which will end on June 30, would delete current supporting students to complete their 2020. The Department will also publish § 600.20(d)(1)(ii)(E), a change that they programs on time. Another commenter a final report on the CBE Experiment would oppose on the basis that the supported the changes because it would that will offer more information to the elements in that section are important permit self-paced coursework to ‘‘float’’ public about the results of that for any approvals the Secretary may beyond the end of a term until a student experiment related to subscription- consider. The commenter urged the masters the learning objectives for that based programs. Department to maintain current coursework. Several commenters Changes: None. § 600.20(d)(1)(ii)(E) (which is expressed support for proposed Comments: One commenter, while redesignated as § 600.20(d)(1)(ii)(D)) and definition of a ‘‘full-time student’’ under acknowledging appreciation for the revise the reference in that section to § 668.2 as it relates to subscription- Department’s attempt to balance the paragraph (d)(1)(ii)(B), which was based programs; one of those subscription-based model’s completion deleted in the consensus language, to commenters indicated that it made requirements with the likelihood that instead refer to paragraph (d)(1)(ii)(C), sense to prevent a student from some students could struggle to make which relates to the Secretary’s approval receiving a disbursement based on progress during a specific period, of an additional educational program. retaken coursework in a subscription- indicated concern that the lack of Discussion: The Department based program, and another stated that alignment between disbursements and appreciates the commenter’s close to do otherwise would be nonsensical. payment periods could cause confusion review of the proposed amendatory Discussion: The Department thanks amongst students, families, and (at least language. We did not intend to deviate the commenters for their support. initially) institutions. from the consensus language of § 600.20 Changes: None. Discussion: We disagree that the and identified and discussed each of the Comments: Two commenters, while subscription-based disbursement model intended revisions in the preamble to supportive of the Department’s is excessively complicated. Though the the NPRM. We agree that the proposed proposed regulations regarding model does require an institution to amendatory language contained errors, subscription-based programs, urged the carefully monitor a student’s progress in especially related to the revised Department to rely more heavily on data order to ensure that he or she does not numbering of paragraphs in and evidence to oversee such programs. receive subsequent disbursements of § 600.20(d)(1) and believe that the One of those commenters noted that the title IV, HEA program assistance, each commenter’s suggested revisions are Department has not yet produced any institution has the ability to clearly reasonable. findings from its CBE Experiment and express to students the number of Changes: We have revised the asked the Department to produce the credits (or the equivalent) that must be amendatory language to reflect the statutorily-mandated reports detailing completed by a given date in order to consensus language, and also revised the findings of its experiments.12 This receive aid in the future. This facet of the reference in redesignated paragraph commenter also encouraged the the subscription-based disbursement (d)(1)(ii)(D) to refer to paragraph Department to improve the collection of model has already been successfully (d)(1)(ii)(C). data from participating institutions in implemented for many non-term the future so that CBE experiments will programs under the existing Subscription Period Disbursement be more useful in the future. The other disbursement system for such programs. (§§ 668.2 and 668.164) commenter emphasized the importance Changes: None. Comments: Many commenters of focusing on student outcomes to Comments: Several commenters asked supported the Department’s definition evaluate institutions and their impacts the Department to allow the of a subscription-based program model on students and the nation’s ability to subscription-based model to be used for within § 668.2. Two commenters programs that are not offered using indicated that the subscription-based 12 experimentalsites.ed.gov/exp/approved.html. direct assessment. One of those
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commenters asked that the Department the model from being effectively scaled student from taking on too much debt if extend the ability to use the at most institutions given the cost of the student is unable to complete subscription-based disbursement model incorporating the model into existing coursework in the program. to any self-paced postsecondary technology supporting the Finally, use of the model would still program, arguing that doing so would administration of title IV, HEA program be limited to institutions that charge provide for greater innovation while funds. students on a subscription basis, a still tying access to Federal aid with Moreover, we did not intend to practice which is rare and primarily student achievement. The commenter hamper or limit flexibility in used by competency-based programs. suggested that such a change would disbursement of title IV, HEA assistance The Department will evaluate the likely increase interest among for institutions that had previously been effectiveness of, and monitor risks institutions and software vendors to participants in the Department’s CBE associated with, the model as it begins support innovation by using the new Experiment, but recognize that many of to be used more broadly and will make model. those institutions measure student any changes necessary to protect Two commenters expressed a related progress using credit hours rather than students and the integrity of the title IV, concern about institutions that had been direct assessment, which would have HEA programs. participating in the Department’s CBE precluded them from using the Changes: We have removed the words Experiment and asked if such subscription-based disbursement model ‘‘direct assessment’’ from the first institutions offering credit-hour CBE under the proposed rule. We believe sentence in the definition of programs would transition following the that expanding the use of the ‘‘subscription-based program.’’ end of that experiment, which had subscription-based model to any Comments: One commenter requested allowed institutions to use a form of this institution using subscription pricing a correction to the definition of a model on a limited basis. will permit institutions with CBE subscription-based program by adding One commenter, while supportive of programs using such pricing to ‘‘(or the equivalent)’’ following ‘‘credit the Department’s proposed regulations transition more easily into full hours’’ in the first sentence of the for subscription-based programs, urged regulatory compliance following the end definition paragraph. The commenter the Department not to expand the of the CBE Experiment. contends this would align the first definition or weaken the flexibilities Finally, the Department believes that sentence to the third and last sentences provided by such programs. The the subscription-based model includes of the same paragraph where the commenter noted that subscription- safeguards for both students and parenthetical already exists. based systems are not without risk to taxpayers that limit the risk of Discussion: We agree with the students, since in such programs expanding the use of the model more commenter that referring to the students are effectively committed to a broadly. The model protects taxpayers equivalent of credit hour in the single price based on the number of by requiring students to complete specified location would improve the courses they expected to complete at the courses or competencies before consistency of the definition. start of the semester, and this means receiving subsequent disbursements of Changes: We have added the words that students who do not complete their title IV, HEA program funds. The model ‘‘(or the equivalent)’’ following the programs quickly could overpay for an also improves upon the existing non- words ‘‘credit hours’’ in the first education that the student does not term disbursement system for students sentence of the definition of benefit from. The commenter by allowing students to switch between ‘‘subscription-based program.’’ emphasized that because tuition in full-time and less-than-full-time Comments: One commenter expressed subscription-based programs will be versions of a program in order to limit support for the Department’s decision to largely financed with student debts, the number of courses they are required provide a student with some control students who do poorly in subscription- to complete in order to receive over the pace of learning in his or her based programs could be at risk. subsequent disbursements of title IV, subscription-based program by selecting Discussion: The Department agrees HEA program funds. a program version at a specific with commenters who argue that the We share commenters’ concerns that enrollment status. The commenter subscription-based method for students in subscription-based programs indicated that allowing a student to disbursing title IV, HEA program could quickly accrue debt while falling change to different program versions no assistance should be extended to behind in their coursework. This risk more often than once per year supports programs other than direct assessment was specifically why we designed the student flexibility and results in a programs. The Department had model to require students to complete manageable level of administrative originally intended to limit the coursework before receiving subsequent burden. Conversely, another commenter applicability of those provisions to disbursements of title IV, HEA program asserted that the Department had not direct assessment programs in order to funds. Institutions and students will provided sufficient justification for ensure that the disbursement method both have a strong incentive to act if a preventing students from switching was used only in programs offered by student finds a subscription-based between versions of a subscription- CBE. However, many CBE programs are program too challenging or fails to make based program no more than once per not offered using direct assessment and progress. Faced with the possibility of a academic year. would thus be prevented from using the student losing access to aid, an Discussion: The limitation on the subscription-based model. institution may provide additional number of times that a student is Commenters also make a strong assistance or resources to the student or permitted to switch between versions of argument that limiting the applicability encourage the student to transfer into a a subscription-based program was of the requirements to direct assessment version of the program at a reduced agreed upon by the Distance Learning programs would sharply limit the use of enrollment status better suited to the and Innovation subcommittee as a the model and would discourage student’s rate of progress. Similarly, the condition for the Department to waive software providers from creating student may decide to seek additional the requirement for an institution to technology that assists institutions in support or transfer into a different evaluate a student’s pace for satisfactory disbursing title IV, HEA funds using this program. In either case, the model’s academic progress purposes in a method. This, in turn, would prevent completion requirements prevent a subscription-based program. We believe
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that evaluating a student’s pace is different enrollment status a payment period, and when doing so unnecessary if the program requires a requirements. The commenter inquired must complete all the hours accrued for particular rate of completion in order for whether a student would be held that program before receiving a the student to continue receiving title accountable for incomplete credits subsequent disbursement of title IV, IV, HEA program assistance over time. associated with one enrollment level HEA funds. This condition is met if the after changing to a different enrollment Note that a student who transfers from subscription-based program both level and asked whether the Department a subscription-based program to a non- requires the student to maintain a would leave this to the discretion of term program, or a term-based program consistent enrollment status (e.g., half- institutional policy. that does not use subscription periods, time or full-time) and the student does To illustrate the question, the is not required to complete additional not regularly change that enrollment commenter sought the Department’s credit hours before receiving a status, which in turn would adjust the viewpoint on an example of a student disbursement in his or her new number of credits the student was making such a change. In the program. This includes cases in which required to complete before receiving commenter’s example, a full-time the student transfers from a subsequent disbursements. student has completed six subscription subscription-based version of a program Allowing a student to frequently periods, each of which is associated to a version of the same program that adjust enrollment status (e.g., by with 12 credit hours. Thus, the student does not use subscription periods. switching between versions of the same would be required to have completed at Changes: None. program) would mean that, without least 60 credit hours (12 credit hours Comments: One commenter asked requiring the institution to evaluate the multiplied by five terms, excluding the whether a student’s Pell Grant student’s pace toward completion of the first one that the student attended) enrollment status would need to be program, the Department would have no before receiving title IV, HEA assistance adjusted at the end of a subscription mechanism for ensuring that the student for a future payment period. However, period to exclude any coursework for completes his or her program in a timely at the end of the sixth payment period, which the student did not begin manner. We believe that the greater the student has only completed 52 attendance. The same commenter asked flexibility associated with the ability to credit hours. At that time, the student the Department to clarify whether a switch enrollment status would be offset switches to a half-time version of the student could begin coursework used to by the substantially greater complexity same subscription-based program. The establish the Pell Grant enrollment associated with measuring a student’s commenter asked whether the student status after the subscription period for pace for satisfactory academic progress would still need to complete eight more which the student was paid had ended. purposes. Therefore, the Department credit hours (more than the six hours Discussion: Normally, a student in a believes that not requiring pace associated with half-time enrollment term-based program is required to evaluations, but limiting students to status) before receiving another attend each class that the institution switching between versions of the same disbursement of title IV, HEA funds in uses to establish the student’s Pell Grant subscription-based program once per the next payment period. enrollment status under the Pell Grant year, is the most appropriate way to Discussion: In the situation described, regulations under § 690.80(b)(2)(ii). ensure that the student maintains an the student would be required to Similar to a student enrolled in a appropriate pace (in the judgment of the complete eight more credit hours before nonterm program, a student in a institution) toward program completion. receiving a disbursement at half-time subscription-based program is not Changes: None. enrollment status for the following required to attend all of the courses in Comments: One commenter asked payment period. Such a student would a payment period that comprise the whether a student enrolled in a then be required to complete a further student’s enrollment status. This is subscription-based program would be six credit hours (in addition to the eight because the Department presumes that required to complete credits associated credit hours needed to gain eligibility the student must attend a sufficient with a payment period that the student for the next disbursement) in order to number of classes or demonstrate a did not attend in order to receive receive the following disbursement of sufficient number of competencies in subsequent disbursements of title IV, title IV, HEA program funds for the order to earn the credit hours (or the HEA program assistance. payment period after that. equivalent) before receiving subsequent Discussion: A student in a Any time that a student begins disbursements of title IV, HEA program subscription-based program is not attendance in a payment period in a funds. required to complete credit hours (or the subscription-based program, the student Note that because a student in a equivalent) associated with a payment must complete the credit hours (or the subscription-based program is always period the student did not attend. In a equivalent) associated with that treated as having the same enrollment subscription-based program, the number payment period (except for the first status, there is also no need for an of credit hours (or the equivalent) that payment period that the student institution to establish a Pell Grant a student is required to complete accrue attends) before receiving title IV, HEA recalculation date under only for payment periods in which the program funds for the following § 690.80(b)(2)(i). student attends at least one day. If an payment period. When a student Changes: None. institution determines that a student did transfers between versions of the same Comments: Two commenters asked not attend a given payment period, the subscription-based program, the student the Department to clarify whether the credit hours (or the equivalent) must first complete the hours associated use of the subscription-based associated with that payment period with the student’s enrollment status in disbursement model will be optional or would not accrue toward the student’s the previous version of the program. required for an institution that offers a future completion requirements. Because the completion requirement in program that is billed by subscription Changes: None. a subscription-based program is based period. Both commenters requested that Comments: One commenter requested on the number of payment periods that an institution be given the option to use clarification regarding how a student a student has attended, a student in other disbursement methods—such as would switch between versions of the such a program may only change his or for standard term, nonstandard term, or same subscription-based program with her enrollment status at the beginning of nonterm programs—if the institution
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otherwise meets the requirements to use from a term-based or non-term program Definition of Weeks of Instructional those alternative disbursement methods. into a subscription-based program will Time (§ 668.3) One of those commenters asked that be treated like all other students who Comments: Commenters expressed institutions be permitted to continue first enroll in subscription-based overwhelming support for the using their current method for programs, i.e., they will not be required Department’s definition of a week of delivering title IV, HEA program funds to complete the credit hours (or the instructional time related to an while developing student-friendly plans equivalent) associated with the first academic year under § 668.3(a)(2)(ii) to to convert from one model to another payment period of their enrollment in include programs that use asynchronous and allowing software vendors to the program and will be required to coursework through distance education design, develop, and test the complex complete the appropriate number of or correspondence. Several commenters new disbursement model. The hours to receive subsequent acknowledged the Department’s efforts commenter argued that such flexibility disbursements thereafter. Note that to create a definition that accounts for would provide options for institutions students who transfer from one innovative non-traditional programs wishing to ‘‘teach out’’ students who subscription-based program to another that are offered asynchronously, were already receiving title IV, HEA at the same institution, including reflecting the unique nature of distance program funds using one of the existing transfers between versions of the same education modalities. Several disbursement systems. program, will not receive a ‘‘free’’ commenters also noted that while time Another commenter interpreted the continues to be an important factor in proposed definitions of the terms payment period when they transfer and must complete all the credit hours (or awarding and disbursing title IV, HEA ‘‘subscription-based program’’ and ‘‘full- program funds, the new definition was time student’’ to require institutions that the equivalent) that have accrued in the prior program before receiving a a step away from a rigid conception of use a subscription-based pricing model time-based, scheduled instruction, and a to also use the subscription-based model disbursement in the program to which the student transferred. positive step toward emphasizing for disbursing title IV, HEA program learning over time. One commenter also funds. The commenter disagreed with Changes: None. indicated that the new definition would this perceived approach, explaining that Comments: One commenter opposed provide clarity and transparency an institution could use subscription the requirement for a student to regarding regulatory thresholds for a pricing in a program that otherwise complete a specific number of credit week of instructional time. meets the requirements to be treated as hours (or the equivalent) in order to Discussion: The Department thanks a traditional term-based program. The receive subsequent disbursements of the commenters for their support. commenter recommended that the title IV, HEA program funds in a Changes: None. Department allow an institution the Comments: One commenter indicated flexibility to choose the type of subscription-based program. The commenter also contended that that changing the definition of ‘‘a week disbursement method that best suits it of instructional time’’ is not necessary, institutions using innovative learning even if it uses a subscription pricing because accrediting agencies are models rarely originate single-term model. responsible for the content of loans, and that the requirement to make Discussion: The Department views the instruction. use of the subscription-based model for two equal disbursements of a single- Discussion: We agree that accrediting disbursing title IV, HEA programs funds term loan is difficult to understand and agencies have authority over as entirely optional. All programs that results in a frustrating student instructional quality at postsecondary meet the requirements for the experience just prior to a student’s institutions. However, we do not believe subscription-based disbursement model completion of a program. The that such authority precludes or would also be permitted to use the commenter recommended that the obviates the need for changes to the existing framework for disbursing funds Department allow one disbursement of definition of a week of instructional in a non-term program. Additionally, if a single term loan for single term loans time. a subscription-based program also meets with loan periods exceeding four and a Changes: None. the requirements for a term-based half months in a subscription-based program—for example, students are program. Written Arrangements at Domestic Institutions (§ 668.5) required to begin and end all courses or Discussion: We appreciate the competencies within the term start and comments and the recommendation but Comments: A few commenters end dates—the institution can disburse do not plan to change requirements supported the proposed changes to funds using standard terms or non- under the Direct Loan regulations, written arrangements because they believe the changes will promote standard terms (as applicable) instead of because those regulations were not innovation and workforce the subscription-based format. discussed during negotiated rulemaking, When the final rule is effective, an responsiveness. One commenter said nor published for comment in the institution that wishes to adopt the the changes will provide students with NPRM. Additionally, the completion subscription-based format may ‘‘teach access to more high-quality programs. requirements are integral to the out’’ students who had previously been Another commenter said the changes provided aid under the existing term- subscription-based disbursement system will align the needs of graduates with based or non-term disbursement and help to ensure that students are those of employers and allow systems. The institution would then be making adequate progress in their institutions to offer timely, relevant permitted to begin enrolling new programs. The requirements were educational program offerings they may cohorts of students using the agreed upon by both the Distance be unable to provide on their own, subscription-based format. An Learning and Innovation subcommittee allowing them to better attract and institution could also choose to and the full negotiating committee, and retain students. One commenter withdraw students from their term- we do not plan to eliminate those supported the proposal, citing an based or non-term programs and enroll completion requirements for students in improved ability for employers to the students under the subscription- subscription-based programs. engage with institutions to reduce skills based model. Students who transfer Changes: None. gaps and personalize learning.
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Discussion: The Department considering the COVID–19 pandemic. program design. Another commenter appreciates the support for the proposed Instead, the Department sees written also opposed the latter provision citing changes. arrangements as a tool that can provide their institution’s shared governance Changes: None. more opportunity for students model. One commenter suggested that Comments: Many commenters (especially for the groups or in the faculty support must be a prerequisite to supported the consensus language, circumstances cited by commenters), any academic or administrative change including the requirement in both because even the most well-resourced and believed that the Department is current regulation and the proposed institutions may not be able to provide taking away the opportunity for faculty regulation that an ineligible institution every conceivable course or and staff to be involved in or organization may provide up to 25 instructional resource. In fact, many administrative changes. percent of a program (or up to 50 well-resourced institutions struggle to Discussion: The Department agrees percent with accrediting agency keep up with the latest practices of their that faculty perform an important role in approval). Several of these commenters students’ future employers and written any institution, but strongly disagrees urged the Department not to go beyond arrangements can help. Such tools can, that faculty should have veto authority the 25 percent and 50 percent limits of course, be misused and the over virtually every academic or because doing so could pose risks to Department encourages accrediting administrative decision. Institutions use students and taxpayers, and particularly agencies to support written written arrangements to benefit from disadvantaged groups of students, arrangements where they offer benefits outside expertise, to better align a especially if an outside entity could to students, but be wary of them if they program with workforce needs, or for provide more than half of a program. merely serve as a lifeline to institutions other purposes. The Department thanks They stated in various ways that going that could not otherwise meet the the commenter for supporting this goal above 50 percent would risk, or outright accrediting agency’s requirements for but notes that alignment with workforce permit, institutions to lend their fiscal and administrative capacity (or needs can be achieved in different ways, accreditation or title IV eligibility status other standards) under § 602.16. including ways that are recommended to others. One of these commenters However, we agree with commenters by expert advisory boards that may have worried that the motivation for abuse who noted that the proposed language, more direct experience in the workforce could be more acute given potentially which streamlines approvals but and better understand contemporary declining revenues during and after the maintains the 25 and 50 percent limits, needs. To achieve this goal, many COVID–19 pandemic if the Department was the product of an extensively institutions understandably wish to act went beyond 25 and 50 percent limits. discussed consensus agreement and, as quickly in such cases for the benefit of These commenters cited discussion at a result, the Department declines to their students. Institutions may be negotiated rulemaking, including make changes. hamstrung if they must ask permission negotiators’ rejection of proposals that Changes: None. from different parties. Institutions may would have allowed institutions to go Comments: One commenter was use traditional governance models. beyond these limits. One of these generally supportive of the provisions in However, the Department sought to commenters suggested that the current this section, but opposed the 50 percent clarify that institutions may determine limit of 50 percent would allow for cap and suggested at least moving it to the level of faculty input that should be sufficient flexibility for institutions 75 percent, believing the Department is provided on decisions relating to while ensuring they pass accountability not sufficiently promoting innovative written arrangements. The Department measures. workforce partnerships, especially given disagrees with the commenter’s Discussion: The Department the COVID–19 pandemic’s impact on suggestion that the proposed rule appreciates the support for consensus the economy. affirmatively takes away the opportunity language from these commenters and Discussion: As noted elsewhere in for faculty and staff involvement in acknowledges concerns about written this section, the Department would have administrative changes due to the arrangements, especially if the 25 and preferred greater flexibility for diversity of existing governance 50 percent limits were lifted. This topic institutions to use written arrangements arrangements. received extensive discussion during and believes such allowance could have Changes: None. negotiated rulemaking, both from been used responsibly. However, we Comments: Several commenters negotiators and subcommittee members. agree with commenters who noted that related their concern about written The Department agrees that using the proposed language, which arrangements to concerns about the written arrangements for all or nearly all streamlines approvals but maintains the extent to which institutions utilize of a program could raise questions about 25 and 50 percent limits, was the online program managers (OPM) or which entity confers the credential. product of an extensively discussed other similar third parties that assist Anything beyond 75 percent may trigger consensus agreement and so the institutions with various functions not restrictions from accrediting agencies Department declines to make changes. related to the actual provision of who require the institution conferring Changes: None. academic instruction. One commenter the credential to deliver at least 25 Comments: One commenter stated that the exclusion of issues percent of the program. While the supported the provisions of § 668.5(f) related to OPMs from this rulemaking consensus agreement would not allow that clarify the ability of institutions has prevented proper oversight of institutions to go beyond 50 percent, the utilizing written arrangements to modify distance education programs, but Department maintains that written their curriculum to meet workforce generally supported the addition of arrangements beyond 50 percent needs, but opposed the provisions that language to clarify how to calculate the theoretically could be used responsibly. clarify the ability of institutions to make percentage of a program that is part of The Department disagrees with the governance or decision-making changes a written arrangement. This commenter implication from many commenters that as an alternative to faculty control or believed that agreements with OPMs written arrangements are somehow approval. This commenter argued that covering issues such as course inherently dangerous for students or advisory boards should not have greater development, instructor training, and that the risk for abuse is greater for authority than faculty and that faculty student recruitment should be treated as disadvantaged groups of students or expertise should be used to inform written arrangements because they are
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distinct from other types of agreements premise that written arrangements relates to burdensome reporting such as food service where the should only be for functions where the requirements, the requirement for a institution may not have expertise. The institution would not have expertise, third-party quality assurance entity to commenter opposed tuition-sharing such as food service. The diversity of oversee program outcomes (in addition arrangements as being a source of risk. institutional expertise is one reason the to the accrediting agency), and other One commenter expressed appreciation Department does not use such criteria to issues (some quite similar to suggestions for the Department’s mention in the distinguish between agreements made at the negotiating table and by NPRM that written arrangements do not requiring written arrangements from commenters). While these mechanisms apply to such third-party services. One those that do not. Instead, the were designed to protect students, commenter suggested the proposed rule regulations state that they are required promote transparency, allow for a could incorrectly be read to imply that if an ineligible entity provides ‘‘part of rigorous evaluation, and other laudable a written arrangement would be the educational program,’’ which means goals, the Department believes that they required if an outside entity provides actual delivery of instruction using were ultimately too burdensome and design or administration but not outside instructors and facilities. The costly to justify the potential benefits of instruction. One commenter implored Department assures one commenter that participation, which may have the Department not to ‘‘gut the meaning it is not changing and could not ‘‘gut’’ ultimately denied students the of college.’’ Other commenters raised the meaning of college. opportunity to benefit from innovative concerns with OPMs or other Changes: None. programs that were potentially quite arrangements such as the acquisition of Comments: Two commenters noted valuable. In short, the Department a proprietary institution by a public that a limited number of institutions believes that the most significant lesson institution that do not relate to the were permitted to go above the 50 from EQUIP is that burden must be proposed rule. percent limit to partner with ineligible weighed against safeguards in order to Discussion: Although mentioned providers as part of the Department’s support innovation while protecting briefly in the NPRM, the Department Educational Quality through Innovative students. This was one of the reasons wishes to expand upon its long-standing Partnerships (EQUIP) experiment. These that the Department undertook this position that written arrangements do commenters said that participants have rulemaking and made the changes to § 668.5 and other sections. not generally apply to contracts with struggled to meet Department benchmarks necessary to launch their Changes: None. OPMs. Use of the word ‘‘design’’ or Comments: Several commenters urged ‘‘administration’’ in § 668.5(g) may refer programs and, as a result, data has been quite limited and so should not be used the Department to rescind changes made to one or more of the following— to § 602.22 in the accreditation establishing the requirements for to justify changes to written arrangements. One commenter further rulemaking that allow senior staff of an successful completion of the course; accrediting agency to review several suggested that some participants in the delivering instruction in the course; or types of substantive change requests, program engaged in practices that were assessing student learning. One example including those relating to written harmful to students, noting one was of this would be if an ineligible entity arrangements, rather than requiring the cited by its State for deceptive provides instructors and delivers agency’s decision-making body to make advertising, and another precipitously instruction via a ground-based or online the decision. One commenter also closed. As a result, they asserted that program separate from what the eligible suggested removing a change that would not enough information is known about institution would normally provide. require expedited approval by whether these types of programs can be This would not include, as the accrediting agencies of written successful. commenter worries some might infer, a arrangements, adding other reporting course’s ‘‘platform or method of Discussion: EQUIP was launched and data collection requirements, and delivery, technical support, or student under the Department’s Experimental closely reviewing written arrangements services.’’ In fact, institutions frequently Sites Initiative.13 We acknowledge the 14 approved by accrediting agencies during utilize employer advisory boards or limitations of the experiment. The recognition reviews. Another other outside expertise to develop Department believes there were commenter suggested seeking data on courses or use a variety of methods to multiple design flaws in that the use of written arrangements from recruit students without written experiment, many unrelated to institutions and accrediting agencies. arrangements. In addition, just as in flexibility for written arrangements. As Discussion: The changes to § 602.22 elementary and secondary schools, the commenters acknowledge, most were made in a separate rulemaking outside providers are frequently used to potential participants were unable to effort and the Department declines to provide training and professional start-up their programs and begin rescind the change it made months ago. development to instructors in utilizing the waivers. This was at least However, the Department reminds these postsecondary education. Requiring a in part due to the experiment’s commenters, some of whom are strongly written arrangement for these core requirements, written under the prior urging the Department to stick with the functions could grind the basic administration, were so burdensome consensus agreement’s limits of 25 and functions of an institution to a halt. and complex that many institutions 50 percent in § 668.5(c), that the Instead, the Department believes expressing interest did not ultimately Department and others agreed that § 668.5(h) is a non-exhaustive list of apply, and those that applied, have maintaining these limits would not activities that do not require written slowly dropped out at various stages in impede innovation, as long as approvals arrangements, but many others from the years-long process of attempting to by accrediting agencies could be contracting for food service, or with obtain approval for and launch these streamlined and take less time. We OPMs, or facilitating ground-based programs. Much of this complexity continue to believe that the consensus instruction through upkeep to language strikes the right balance facilities—should be assumed to not 13 80 FR 62047. between enabling innovation and 14 ed.gov/news/press-releases/expanding- require a written arrangement either, in pathways-success-after-high-school-us-department- protecting students and taxpayers. The accordance with longstanding practice. education-approves-first-innovative-equip- Department will uphold the consensus We further question one commenter’s experiment. language regarding the 25 and 50
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percent limits in § 668.5(c), as well as previously required accrediting agencies achieve synergies between two or more regarding the efforts to streamline to demonstrate prior experience in a eligible institutions owned or controlled approvals in § 602.22 either. The given area before the Department would by the same individual, partnership, or Department believes that these changes allow an expansion of scope to conduct corporation. reduce burden on accrediting agencies accreditation activities in those areas. The COVID–19 pandemic highlights a and streamline institutions’ ability to We removed such provisions because worst-case scenario, where institutions respond to workforce needs, as outlined they could have had an anticompetitive had to quickly move students online in greater detail in the Department’s effect and created a sometimes- and expand any remote learning NPRM and final rule on accreditation.15 impossible standard requiring an entity infrastructure they had at their disposal. As discussed during negotiated to demonstrate experience doing However, a local or national economic rulemaking, the Department declines to something they are legally barred from shift that quickly necessitates more add further burdensome reporting doing. The Department was unable to training in one area and less in another requirements; however, according to find, and commenters did not suggest, a may be a more common example. The § 668.43(a)(12), institutions are required workable alternative that would have Department notes that many accrediting to disclose written arrangements to maintained the language while avoiding agencies require at least 25 percent of students, which is an added similar problems. The Department does the program to be delivered by the requirement included in the not believe a viable alternative exists institution conferring the credential and Accreditation and State Authorization that would provide meaningful defers to accrediting agencies in this final rule to improve transparency. protection without having an area. The Department does not believe Changes: None. anticompetitive effect, being overly this provision, which applies to a very Comments: Several commenters burdensome, or being unenforceable. In small subset of institutions and responded to the question posed by the addition, the Department believes the students, exposes those students to Department in the NPRM, which asked requirement that the provider be meaningful additional risk and notes whether the requirement for non- effective in meeting stated learning that any misrepresentation or fraud of accredited entities to demonstrate prior objectives is vague, likely the kind the commenter fears may be experience and effectiveness prior to unenforceable, may be deemed arbitrary addressed through existing enforcement engaging in a written arrangement and capricious, and may violate 20 means. As noted elsewhere, we not only would be too difficult to meet. These U.S.C. 3403(b), which prohibits the maintained the requirement to disclose commenters suggested that it would be Secretary from exercising authority over these arrangements to students in too difficult for most third-party curriculum, administration, and § 668.43(a)(12), but we actually providers to meet a requirement to personnel of educational institutions. strengthened those requirements in the ‘‘demonstrate experience’’ before being The Department believes that accreditation final rule, which was given the opportunity to do so. One commenters made a compelling case developed though a consensus commenter added that institutions are that the proposed provision could agreement as part of the same negotiated sufficiently motivated to ensure interfere into areas overseen by rulemaking as this regulation.16 academic rigor when using written accrediting agencies. Students may enroll in a program they arrangements and thoroughly vet them Changes: The Department concurs choose. However, options are finite and before signing a contract. This with the commenters. We have deleted commenter noted that the content § 668.5(c)(1)(i) and renumbered the may be unexpectedly limited, regardless provided by the ineligible provider must section accordingly. of the use of a written arrangement. still meet standards for accreditation Comments: One commenter Unavailability of faculty or facilities, and said that new entrants often have supported the proposed removal of insufficient demand to offer a certain the most advanced and desirable language that previously required the course during any given term, or other content. The commenter questioned certificate or degree-granting institution factors could limit students’ options. In what type of information would be to provide more than 50 percent of the most cases, despite the commenter’s sufficient to demonstrate experience if educational program in a written assertions, the Department believes this the provision remained. Another arrangement between two or more provision is likely to increase (rather commenter added that the ‘‘experience’’ eligible institutions owned or controlled than decrease) available options to requirement would intrude into matters by the same individual, partnership, or students. The risk of fraud is always overseen by accrediting agencies. And corporation. present any time Federal funds are one commenter believed the One commenter opposed this change involved. The Department prefers strong requirement was ambiguous while and stated that there may be differences enforcement of a limited number of restraining innovation. in quality or the student experience important and straightforward Discussion: The Department agrees between institutions sharing ownership, safeguards rather than diverting with the commenters who uncovered which could lead to students being resources to maintaining numerous low- serious flaws in a requirement to misled about the nature of their risk restrictions that could deny benefits demonstrate prior experience and education. The commenter suggested to students. effectiveness. The Department does not students may be required to take more Changes: None. change consensus language without a courses online through one affiliated Clock to Credit Hour Conversion good reason, especially in a provision so institution when they expected to be (§ 668.8) vigorously debated during negotiations. taking ground-based courses from the However, after negotiations, the other. The commenter suggested the Comments: One commenter expressed Department noted similarity between Department has provided insufficient support for the proposed changes to the experience requirement in evidence to support the change. § 668.8(k), noting that the changes § 668.5(c)(1)(i) and provisions removed Discussion: The Department thanks eliminate confusion about the inclusion in the accreditation regulations, the commenter for supporting removal of homework time in the clock-hour especially those in § 602.12, which of this restrictive provision. The determination. Department maintains that there is 15 84 FR 27404 and 84 FR 58834, respectively. value in maintaining flexibility to 16 84 FR 58834.
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Another commenter asserted that at the request of negotiators who Changes: We have revised compliance with these regulatory expressed the concern that programs § 668.8(k)(2)(ii) to clarify that in meeting changes would, in addition to having with small numbers of students may not the clock-to-credit hour exemption, an negative financial effects, be potentially produce graduates in a given year, or institution must demonstrate that at burdensome, and conflict with even over a couple of years, raising the least one student graduated from the accreditor expectations. The commenter prospect of those programs being found program during the current award year further offered that credit hours are in violation of § 668.8(k)(2)(ii). The or the two preceding award years. more suitable than clock hours for change was included in amendatory text Certification Procedures (§ 668.13) evaluating satisfactory academic on which consensus was reached. progress and the current regulation While appreciative of those Comments: Several commenters (§ 668.8(k) and (l)) is more reflective of negotiators’ concerns, we are persuaded stated their support for language the levels of learning at their institution. that removal of the requirement for providing that if the Secretary does not Finally, the commenter expressed institutions to demonstrate that students make a decision to grant or deny concern over the effect the proposed enroll in and graduate from the program certification within 12 months of an changes might have on the institution’s would make it possible for an institution’s expiration date of its ability to provide the same levels of unscrupulous institution to stand-up current period of participation, the contact for online and in-person nonexistent programs that do not Department will grant the institution an courses. actually graduate anyone, effectively automatic recertification, which may be One commenter noted that the circumventing the clock-to credit-hour provisional. The commenters supported Department neglected in the NPRM to conversion requirement. this change for the increased certainty address the proposed change to With respect to degree programs with and transparency it provides to § 668.8(k)(2)(ii), removing the limited numbers of students, we note institutions that would otherwise requirement that an institution that current § 668.8(k)(2)(ii) makes no receive month-to-month extensions of demonstrate students enroll in and mention of the frequency with which their eligibility. The commenters also graduate from degree programs and students must be shown to graduate believed that such changes properly replacing it with a requirement that the from the degree program that courses balance this increased certainty for institution demonstrate that at least one from the program that would otherwise institutions with Department oversight student was enrolled in the program be subject to clock-to-credit hour on behalf of students and taxpayers. during the current or most recently conversion are acceptable toward; and a One commenter added that the change completed award year. The commenter year where no student graduates from will allow institutions to move forward asserted that the proposed rule would the degree program is not, in and of with new programs in a timely and allow institutions to effectively invent a itself, an indicator of noncompliance. responsive manner. nonexistent program to use as a back- Accordingly, we are revising Discussion: The Department thanks door way to avoid the conversion § 668.8(k)(2)(ii) to clarify that an the commenters for their support and formula, thus compromising program institution must be able to demonstrate agrees that the changes provide for integrity. that at least one student graduated from increased certainty and transparency Discussion: The actual scope of what the program during the current award while balancing the need to protect was proposed in the NPRM is year or the two preceding award years. students and taxpayers. essentially a revision to the conversion We continue to believe that the Changes: None. formula. The applicability of clock-to- exception in § 668.8(k)(2) is Comment: One commenter opposed credit-hour conversion is not expanded appropriately limited to programs that automatic certification renewal when as a result of these changes. Under consistently produce graduates. Even the Secretary does not decide to grant or current regulations, any program that is where an institution is not attempting to deny within 12 months of an at least two academic years in length deliberately circumvent clock-to-credit- institution’s expiration date. The and provides an associate or bachelor’s hour requirements, a circumstance commenter claimed that this change degree (presumably the overwhelming where no student graduates from the contradicts the HEA and circumvents majority of those programs offered at degree-granting program over multiple the Secretary’s obligations under the four-year public and private, degree- years legitimately calls into question Act. The commenter asserted that this granting institutions) is not subject to whether that program is truly meeting change would undo the Secretary’s clock-to-credit-hour conversion. This the requirements for the exception obligation under 20 U.S.C. 1099c(a) to would not change under what was found in § 668.8(k)(2). Therefore, evaluate the institution’s legal authority proposed in the NPRM. It should further because the exemption requirement to operate within a State, accreditation be noted that there are no Department only applies when an institution offers status, administrative capability, and rules requiring the use of clock hours as a program that leads to a degree, and the financial responsibility. The commenter opposed to credit hours in measuring shortest degree programs are generally also claimed that the Department students’ progress. no less than two years in length, the provided no evidence of the uncertainty We inadvertently omitted from the Department believes that a two-year experienced by institutions because of NPRM any discussion of proposed look-back period would be sufficient to the current practice. The commenter § 668.8(k)(2)(ii), which removes the identify programs that could fulfill this suggested that there could be good requirement that an institution requirement for an exemption from the reason for the Department to delay its demonstrate students enroll in and clock-to-credit conversion requirements. review, including if it is investigating graduate from degree programs and If no student graduates from a program the institution. The commenter believed replaces it with a requirement that the during the entire expected timeframe for that, due to the lack of evidence or institution demonstrate that at least one completion of that program, it calls into reasoning, the proposed change is both student was enrolled in the program question whether the transferability of arbitrary and capricious and that the during the current or most recently credits into such a program is in fact Department would violate the APA by completed award year, and thank the useful to a student enrolled in a non- making the proposed change. The commenter who brought this omission degree programs, which is the essence commenter further stated that the to our attention. This change was made of the exemption in the first place. Department failed to consider
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reasonable alternatives and that it has a feedback for institutions, helps the labor markets do not significantly legal obligation to do so. The Department to properly oversee overlap two States’ borders. They cited commenter suggested that the institutions, and can allow speedier past statements, including from the Department instead seek additional remedies if deficiencies are identified. Department’s OIG, of institutions that funding for staff to review recertification As such, and contrary to the assertion the commenters say falsified their applications to ensure a prompt review made by this commenter, the program length. Instead, this commenter and decision. The commenter also certification renewal process outlined in suggested that we allow institutions to proposed providing a shorter extension § 668.13 is neither arbitrary and lengthen their program based on an of, perhaps, three or six months while capricious nor would it constitute an adjacent State’s requirement only if the the Department continues its review. impermissible abdication of the institution is within a metropolitan Discussion: The Department Secretary’s responsibility to determine statistical area (MSA) that includes appreciates the commenter’s interest in an institution’s legal authority to another State. The commenter also this topic. Certification decisions can operate within a State, its accreditation suggested an alternative, that the have major implications for institutions status, and its administrative capability institution instead attest to, and and students. We agree that more must and financial responsibility when demonstrate if asked, that it has be done at the administrative level to determining the institution’s eligibility enrolled a student who lived in that provide more timely responses and to participate in title IV, HEA programs. State within the preceding three years or better communication. However, we Changes: None. that recent graduates are gainfully believe those steps alone are Limitation on Number of Clock Hours employed in that State. insufficient. Further, we believe it is in Based on Minimum State Requirements One commenter supported the the best interest of students and (§ 668.14(b)(26)) proposed rule in this area and cited a taxpayers for the Department to timely need for greater occupational licensure identify deficiencies and take Comments: Many commenters reciprocity across State lines. appropriate action. supported the proposed requirement The Department appreciates the that eligible short-term programs Discussion: We appreciate the support suggestion that the Department grant demonstrate reasonable program length. from commenters on this issue and three- or six-month extensions instead These commenters acknowledged the acknowledge that setting the right of a month-to-month extension. trade-off between setting proper balance on this issue is difficult for However, institutions must make safeguards to ensure program length is reasons outlined in the NPRM, most important budgetary and academic not inflated and ensuring students are notably that individuals often move decisions annually. The Department able to meet States’ occupational from one State to another or live, work, believes those proposals would have the licensure requirements. The and learn in different States at the same same drawbacks and present the same commenters believed that the time. uncertainty to institutions as the status Department struck a proper balance, The Department appreciates the quo. An extension longer than one year which will promote worker mobility concern from the commenter who would not give the Department across State lines and reduce barriers to suggested the proposed rule would not sufficient oversight to revisit a decision employment, especially in regional go far enough to prevent institutions in the short term if needed. economies that cross State boundaries. from artificially increasing program The Department disagrees that it has Several other commenters length. We have serious concerns any failed to provide a proper justification underscored that the negotiating time an institution, accrediting agency, for this change and did not deviate from committee compromised on the or State takes steps to artificially limit the consensus language on this topic. As provisions related to program length access to a profession. The Department discussed during negotiated rulemaking and suggested that the provisions would will continue to speak out against such and as other commenters have noted, protect students from fraud. One of policies and take steps where possible delaying decisions causes significant these commenters noted the proposed to prevent credential inflation and uncertainty. The Department believes rule provided balance and an acute related barriers to opportunity. that 12 months beyond the expiration positive impact on student veterans and However, as outlined in the NPRM and date of the institution’s current military-connected students. supported by many commenters, the certification is more than sufficient Several commenters said they Department believes this language time, especially since the institution is preferred the proposed rule’s provision strikes a reasonable balance between required to submit the application for over other options discussed during supporting students who must qualify recertification no less than 90 days prior negotiated rulemaking, especially the for State licensure and preventing to the expiration of its current Department’s initial proposal allowing abuse. If abuse rises to the level of certification. The Department’s review program length of 100 percent of the falsification of documents, as the usually begins more than a month longest minimum requirement in any commenter suggests, we will use before the expiration date, adding State. These commenters urged the existing enforcement methods. additional time to the process. If an Department to maintain the consensus investigation is underway, the agreement contained in the proposed The Department thanks the Department has other options at its rule. commenter for the suggestion about disposal. The Department can One commenter praised the changes tying requirements to out-of-State MSAs provisionally certify the institution for to this provision and the positive impact or past success at finding students as little as one year or can deny the they will have on veterans and their employment in a neighboring State. recertification if justified. If the spouses, who frequently move across However, we believe this would hamper Department must issue sanctions, it may State lines. mobility across State lines and impose do so at any time. This change does not One commenter suggested that the burdens on institutions and the reduce the Department’s enforcement proposed provision did not go far Department. The tie to MSAs would power. Instead, it encourages the enough to prevent institutions from only benefit areas that are more heavily Department to process applications lengthening their programs in ways that populated or where MSAs cross State promptly, which provides timely do not benefit students, including if lines (they frequently do not) so the
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proposal does not seem to be a viable authority to allow voluntary early the second comprising the remaining 52 alternative.17 implementation of this provision. days and beginning the following We also do not agree that institutions Discussion: The Department will Monday. Students who complete only should be required to demonstrate that allow voluntary early implementation the first module could be treated as their graduates have been successful at on the entire rule, including this withdrawn, because their first module finding employment in another State provision. included a scheduled break or did not when the institution’s programs, under Changes: None. include a weekend. Another commenter provided the our current regulations, may be unable Return of Title IV Funds (R2T4) example of a program offered in to meet the requirements of preparing (§ 668.22) individuals to be licensed in that State. standard semesters, each comprised of The Department appreciates the Comments: Numerous commenters two, 8-week modules. Both modules of support of the commenter who noted expressed support for the proposed the fall semester, each 54 days in length, that reciprocity for occupational changes in the treatment of title IV are separated by a weekend and there licensure is a helpful, but incomplete, funds when a student withdraws. One are no breaks of five or more days in the step States can take to lower barriers for of those commenters stated that the semester. The spring semester contains individuals. Time-based requirements changes regarding which students are a spring break of nine days occurring that may not be tied to employer needs considered withdrawn for R2T4 between the first and second modules can be harmful and deny opportunity to calculation are a welcome attempt to (each 54 days in length) of the semester. individuals looking to build a better life. resolve technical problems in the A student enrolls in five credits in the Changes: None. current rules existing for students first module of the fall semester and six Comments: A few commenters enrolled in self-paced instruction and in credits in the second module of that supported the proposed provision and modules, whose treatment with respect term, successfully completing the first asked that the Department define to R2T4 sometimes does not reflect their module but opting not to return for the ‘‘adjacent State’’ to include States whose actual level of coursework completion. second module. With the break border is within 100 miles of the State Another commenter expressed included, the fall semester is 110 days in which the institution is located to appreciation for the Department’s in length, 54 days, or 49 percent of allow for greater flexibility for regional attention in considering the inequities which the student completed, meaning economies. that currently exist for students he or she would be considered Discussion: Although the Department withdrawing from a program delivered withdrawn. Another student enrolls in appreciates the suggestion to define an in modules. Pointing out the unfairness the same pattern during the spring ‘‘adjacent State’’ as one whose border is of penalizing a student by requiring an semester, again completing the first within 100 miles of the State in which R2T4 calculation and the potential module of 54 days but not returning for the institution is located, such a change return of funds solely because that the second module, also 54 days in would not align with the consensus student completed her program on a length. However, with the spring break agreement or the definition of the word more aggressive timeline than originally excluded from the number of the ‘‘adjacent’’ in this context, which means anticipated, other commenters thanked number of days in the semester, this ‘‘having a common endpoint or the Department for removing the student has completed 54 of 108 days or border.’’ 18 The Department wishes to requirement to conduct an R2T4 50 percent of the spring semester and is maximize opportunity and minimize calculation in cases where a student has not considered withdrawn. Both barriers and appreciates hearing from completed graduation requirements. students completed the same five institutions with students that may Discussion: We appreciate the support credits and 54 days in the payment benefit from this provision. However, of these commenters. period, but in the case of the first many States have ‘‘statutory language Changes: None. student the institution is required to allowing reciprocity or endorsement Comments: Several commenters perform the R2T4 calculation due to the agreements for licenses’’ including for requested clarification on the proposed break between the modules being less cosmetology and, as already mentioned, rule, which does not consider a student than five days (i.e., a weekend). Finally, one commenter explained States have opportunities to lower the withdrawn from a program offered in that in a standard term program where barriers they have erected in these modules if the student completes: • One module that includes 50 the total days in the payment period is areas.19 As many commenters have percent or more of the number of days an odd number and the first of two noted, the consensus agreement in this in the payment period, modules offered over the semester is area involved genuine compromise and • A combination of modules that one day shorter than the second, a balancing of competing priorities. While when combined contain 50 percent or student enrolling in both modules but a small number of students may be more of the number of days in the completing only the first module would willing to travel up to 100 miles and payment period, or complete only 49 percent of the cross two State borders to work or learn, • Coursework equal to or greater than payment period. The commenter offered the Department does not believe this the coursework required for the that this could result in students, who benefit is outweighed by the risk of institution’s definition of a half-time for all intents and purposes completed institutions using a significantly longer student under § 668.2 for the payment a module lasting half of the term, being requirement two States away in order to period. considered withdrawn for lack of one lengthen their programs for all students. The commenters identified various day. Changes: None. ways in which application of the To address these issues, commenters Comments: A few commenters proposed rule as written might result in variously suggested counting only days requested that the Department use its inequitable treatment of students who of instruction (excluding both breaks withdraw from programs taught in and weekends) instead of calendar days, 17 www2.census.gov/geo/maps/metroarea/us_ wall/Sep2018/CBSA_WallMap_Sep2018.pdf. modules. One commenter offered the excluding scheduled breaks of less than 18 merriam-webster.com/dictionary/adjacent. example of a 102-day term consisting of 5 days between modules from the 19 ncsl.org/research/labor-and-employment/ two modules, the first module 50 days number of calendar days to address the occupational-licensing-statute-database.aspx. in length and ending on a Friday and issue of weekends between modules,
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and changing the minimum completion period, excluding scheduled breaks of in the modules that a student is percentage from ‘‘50 percent or more’’ to five or more consecutive days and all scheduled to complete in a payment ‘‘49 percent or more.’’ days between modules. period or period of enrollment comprise Discussion: We agree with the Comments: One commenter the denominator of the calculation that commenters that additional referenced the Department’s proposal in determines the amount of title IV, HEA clarifications to the proposed changes in the preamble of the NPRM to amend program funds that the student earns for § 668.22 are necessary to avoid the § 668.22(l)(6) to clarify that a program is the period. potential unintended consequences ‘‘offered in modules’’ if the program During meetings of the Distance identified above. As expressed in the uses a standard term or nonstandard- Learning and Innovation subcommittee, preamble of the NPRM, the term academic calendar, is not a the Department specifically expressed Department’s intent in proposing subscription-based program, and a its intent to make changes to § 668.22 modifications to the treatment of course or courses in the program do not that would exclude non-term and modules in the R2T4 was that a student span the entire length of the payment subscription-based programs from the would be considered to have completed period or period of enrollment. The types of programs that are considered the period if he or she completed preamble also stated that non-term ‘‘offered in modules’’ and eliminate coursework constituting at least half of programs would no longer be regulations specific to subscription- the days in the period, not including the considered programs ‘‘offered in based and nonterm programs that days in scheduled breaks. It is not our modules’’ in any circumstances. previously incorporated the concept of intent in these final rules that students Specifically, the commenter requested modules. As noted above, these changes who have otherwise met that standard the Department clarify whether a are discussed in the preamble to the be considered withdrawn due to minor student who completes at least a half- NPRM but are not reflected in the differences in the number of days that time coursework in a subscription amendatory text. The Department constitute 50 percent of a term, resulting period before ceasing enrollment will be therefore believes that it is necessary to from weekends falling between considered to have withdrawn from the make a change to § 668.22(l)(6) in order modules, the absence of breaks of five payment period for purposes of R2T4. to fully implement its proposed days or more, or terms with uneven Another commenter expressed overall approach, which was approved by both numbers of days etc. Accordingly, we support for the proposed changes to the Distance Learning and Innovation are revising proposed § 668.22(l)(6), clarifying that a program subcommittee and the full negotiated § 668.22(a)(2)(ii)(A)(2)(i) and (ii) to is ‘‘offered in modules’’ if the program rulemaking committee. reflect that a student who withdraws uses a standard-term or nonstandard- Finally, regarding the reference to from a program offered in modules who term academic calendar, is not a modules in § 668.10, we believe the completes one module that includes 49 subscription-based program, and a term is used correctly in that section percent or more of the number of days course or courses in the program do not and does not prejudice the amendatory in a payment period or a combination of span the entire length of the payment text in § 668.22(l)(6). Proposed modules that when combined contain period or period of enrollment. § 668.10(a)(3) requires an institution to 49 percent or more of the number of However, the commenter noted that the establish a methodology to reasonably days in the payment period, will not be change, while discussed in the equate each module in the direct considered withdrawn. This change will preamble, is not included in the assessment program to either credit ensure that a day or two difference in amendatory text of the NPRM. The same hours or clock hours. If it were the case the number of days in each module does commenter offered that, given these that all direct assessment programs were not become the determining factor in changes, use of the term ‘‘module’’ in subscription-based, this might be a whether a student is considered § 668.10(a)(3), relevant to direct source of confusion. However, many withdrawn. We are further revising assessment programs, is confusing and direct assessment programs are offered § 668.22(a)(2)(ii)(A)(2)(i)and (ii) to an alternative term should be found to in terms using modules. We believe the exclude scheduled breaks of five or replace it. clear statement in § 668.22(l)(6) that a more consecutive days and all days Discussion: We appreciate the program offered in modules is not between modules from the number of commenter bringing the omission of considered to be a subscription-based days in the payment period used to proposed § 668.22(l)(6) from the program is sufficient to avoid any calculate whether the module(s) preamble to our attention. confusion between these two sections. completed by the student comprise 49 A student in a subscription-based or Changes: We have revised percent of the payment period. nonterm program is not considered to § 668.22(l)(6) to clarify that a program is Changes: We have revised have completed a payment period if the ‘‘offered in modules’’ if the program § 668.22(a)(2)(ii)(A)(2)(i) and (ii) to student completed at least half-time uses a standard term or nonstandard- reflect that a student who completes all coursework in that payment period term academic calendar, is not a the requirements for graduation from his because the Department does not subscription-based program, and a or her program before completing the consider a nonterm program or a course or courses in the program do not days or hours in the period that he or subscription-based program to be span the entire length of the payment she was scheduled to complete is not ‘‘offered in modules.’’ The nature of period or period of enrollment. The considered to have withdrawn from a such programs—which are not required amendatory text in the final rule program offered in modules if the to set limits on the timeframes for includes § 668.22(l)(6) which was student successfully completes one students to complete coursework—are inadvertently omitted in the NPRM. module that includes 49 percent or not suited to the use of modules, which Comments: One commenter requested more of the number of days in the presume a clear start and end date for that the Department clarify whether a payment period, excluding scheduled the coursework that a student is completed module is one the student breaks of five or more consecutive days attempting during a payment period. successfully completed, or simply one and all days between modules or Such a timeframe is crucial to the the student attended all the way combination of modules that when incorporation of modules into the through, i.e., the module end date is in combined contain 49 percent or more of Department’s framework for the R2T4 the past, the student began attendance the number of days in the payment calculations because the number of days and did not withdraw or stop attending;
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the module grade(s) could be earned the number of days in the payment Discussion: While the commenter is failing grades or incompletes. period, excluding scheduled breaks of correct in asserting that a standard term Discussion: As discussed in the five or more consecutive days and all of 21 weeks, as permitted by the NPRM, the Department proposed to days between modules. November 5, 2019 EA, increases the revise its approach to the treatment of Comments: One commenter noted potential for a student to be scheduled students who complete some, but not that proposed § 668.22(a)(2)(i)(C) to return to a course that begins more all, of the coursework they were provides that for a student in a standard than 45 days after the end of the module scheduled to attend during a payment or nonstandard-term program, excluding the student ceased attending, we are not period to ensure more equitable a subscription-based program, the persuaded that this obviates the reasons treatment of such students while student is not scheduled to begin for which the Department proposed the maintaining the integrity of the title IV, another course within a payment period changes to § 668.22(a)(3)(ii). As HEA programs. In achieving that or period of enrollment for more than 45 explained in the preamble of the NPRM, balance, the Department believes it is calendar days after the end of the the Department maintains the same reasonable to require that a student module the student ceased attending, concerns about long periods of non- successfully complete the module(s) unless the student is on approved leave attendance for standard term programs comprising 49 percent of the payment of absence, as defined in paragraph (d). as it does for nonstandard-term and period or half-time enrollment. This However, § 668.22(a)(2)(i)(D), which non-term programs and believes that standard will have the added benefit of provides that for a student in a non-term students should be treated consistently reducing confusion for institutions that program or a subscription-based in these situations. The increased are not required to take attendance, program, the student is unable to likelihood for these extended periods of since passing grades will necessarily be resume attendance within a payment non-attendance to occur with longer the determining factor in whether a period or period of enrollment for more standard terms, we believe, argues in student is treated as a completer rather than 60 calendar days after ceasing favor of this requirement. than a withdrawal. Successful attendance, lacks a similar qualifier Changes: None. completion of a module requires the clarifying that a student who is unable Comments: Under proposed student receive at least one passing to resume attendance within the § 668.22(l)(9), a student in a program offered in modules is scheduled to grade for that module. Successful prescribed period is not considered complete the days in a module if the completion of coursework equal to or withdrawn if on an approved leave of student’s coursework in that module greater than the coursework necessary absence. for half-time enrollment requires that was used to determine the amount of Discussion: We appreciate the the student receive a passing grade in a the student’s eligibility for title IV, HEA commenter bringing this unintentional sufficient number of credits to comprise funds for the payment period or period discrepancy to our attention and clarify half-time enrollment status (as defined of enrollment. One commenter that no student on an approved leave of by the institution under applicable requested that the Department clarify absence is ever considered to be regulations) for the payment period. whether the most recent determination A student who completes a module withdrawn. of enrollment status would be used for but receives all incomplete grades, or a Changes: We have revised this purpose or whether the Department combination of course incompletes and § 668.22(a)(2)(i)(D) to clarify that a is referring to a specific initial or failing grades is not considered to have student who is unable to resume ‘‘census’’ date, or whether this can be a successfully completed that module attendance in a non-term or matter of institutional policy. The unless at least one course incomplete subscription-based program within a commenter asked, if the latter, will converts to a passing grade before the payment period or period of enrollment institutions have the latitude to deadline by which the institution must within 60 calendar days after ceasing implement a policy with multiple otherwise perform an R2T4 calculation enrollment is, nevertheless, not points of determination during the term for that student. Likewise, a student considered withdrawn if on an much like existing policies with receiving all course incompletes or a approved leave of absence. multiple Pell recalculation dates? combination of course incompletes and Comments: One commenter asked the Discussion: In the preamble to the failing grades is not considered to have Department to consider whether, in NPRM, the Department proposed to use successfully completed the number of view of the November 5, 2019 electronic the student’s schedule at a fixed point credits necessary to establish half-time announcement (EA) extending the to determine the number of days the enrollment unless a number of course maximum length of a semester to 21 student is scheduled to attend during incompletes sufficient to comprise half- weeks, proposed changes to the period for R2T4 purposes. Using this time enrollment convert to passing § 668.22(a)(3)(ii) requiring students approach, subsequent fluctuations in grades before the deadline by which the enrolled in programs offered in standard the student’s enrollment would have no institution must otherwise perform an terms to confirm that they will enroll in effect on the number of days in the R2T4 calculation for that student. another module within 45 days of denominator of the R2T4 calculation if Changes: We have revised the ceasing enrollment to avoid being the student withdraws, resulting in a provisions of § 668.22(a)(2)(ii)(A)(2) to treated as withdrawn is still justified. greater degree of certainty for students, reflect that a student who is enrolled in The commenter observed that prior to a diminished likelihood of improper a program offered in modules is not the Department’s revised policy for payments, and reduced administrative considered to have withdrawn if the standard term length issued on burden for institutions performing such student successfully completes one November 5, 2019, it was uncommon for calculations. In order to allow module that includes 49 percent or a module in a standard term program to institutions flexibility in adopting a more of the number of days in the begin more than 45 days following the policy that is practical for their payment period, excluding scheduled end of a prior module. However, the program(s), we are not prescribing a breaks of five or more consecutive days, new guidance that allows a standard specific date that institutions must use and all days between modules or term to be as long as 21 weeks, increases as the fixed point for determining the combination of modules that when the likelihood that more than 45 days number of days the student is scheduled combined contain 49 percent or more of would elapse. to attend. A Pell recalculation date or
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census date is an allowable option, as Discussion: We appreciate the support maximum timeframe, may file a SAP would be some other date determined for our proposals to eliminate appeal (if the institution’s SAP policy by the institution. An institutional redundancy and provide greater permits such appeals). policy that includes multiple dates, flexibility in the application of SAP Changes: None. such as is permitted for Pell requirements. In response to those Foreign Schools (§§ 600.52 and 600.54) recalculation dates, is acceptable. commenters who suggested that the Changes: None. definition of ‘‘maximum timeframe,’’ as Comments: Two commenters Comments: One commenter noted measured in calendar time, supported retaining the current exception for independent research that the proposed amendatory text in accommodate differences in enrollment done by an individual student in the § 668.22(a)(2)(ii)(A)(3), addressing status, we note that the limitation on United States. The provision permits written confirmation for a payment maximum timeframe of 150 percent of not more than one academic year of period or period of enrollment in which the published length of the program (for research conducted during the courses in the program are offered in an undergraduate program) is an dissertation phase of a doctoral program modules, specifically allows ‘‘electronic intentionally static measure designed to (and where the research can only be confirmation,’’ whereas ensure completion of that program performed at a facility in the United § 668.22(a)(2)(ii)(A)(4) and (5) pertaining within a reasonable time. For example, States). The provision also permits an to subscription-based programs and a four-year, 120 credit Bachelor of Arts eligible foreign institution to enter into non-term programs respectively, make program may have a maximum timeframe of 180 attempted credits or a written arrangement with an eligible no reference to the use of electronic institution within the United States to confirmation. six years. Measuring maximum timeframe for the program in credit provide no more than 25 percent of the Discussion: We thank the commenter courses required for a student’s eligible hours, with pace determined by for bringing this inconsistency to our program. However, both commenters dividing the cumulative number of attention. It is the Department’s requested that the proposed regulation successfully completed credit hours by longstanding policy that, in the absence be broadened such that a doctoral the cumulative number of attempted of regulations specifically requiring that student, having already completed 25 hours, does account for variances in a notification or authorization be sent percent of his or her eligible program by enrollment status. However, this is via U.S. mail, a school may provide taking coursework in the United States, because credit hours are measured only notices or receive authorizations would be permitted an additional full as attempted, not because students who electronically. It is further permissible academic year to conduct independent attend part-time are permitted to use an electronic process to provide research there. One of those commenters required notices and make disclosures additional hours beyond 180. Calendar opined that the research phase of a by directing students to a secure website time elapses at a constant rate regardless doctoral program can take years and that contains the required notifications of how many credit hours a student should not be subject to an artificial and disclosures. Because of this, we attempts or completes. As a result, time limit that could preclude students believe specific mention, in any maximum time frame expressed in from pursuing a program that provides regulation, of the option to distribute calendar time is, necessarily, less insights into their chosen field. The required notifications and disclosures, flexible with respect to variances in commenter concluded that since the or collect required authorizations and enrollment status. Factoring part-time research phase of a doctoral program is confirmations through electronic means, enrollment into the measurement of separate and distinct from the classroom is redundant and may cause confusion. students’ pace would potentially result phase, it is both logical and equitable Changes: We have revised in a maximum timeframe, as expressed that students be permitted to undertake § 668.22(a)(2)(ii)(A)(3) to remove the in calendar time, of greater than 150 research in the United States without reference to ‘‘electronic confirmation.’’ percent of published program length. regard to whether or not they have taken We do not agree that allowing Satisfactory Academic Progress a portion of their classroom study in institutions to measure maximum (§ 668.34) that country. timeframe in calendar time will Responding to the Department’s Comments: Several commenters negatively affect students whose request for comments on whether expressed general support for the personal situations preclude full-time written arrangements for students proposed changes to satisfactory attendance in a program. First, this studying in the U.S. should include academic progress (SAP). However, flexibility was not proposed with the organizations that are not eligible some of those commenters asked that expectation that large numbers of institutions, one commenter replied in the Department consider amending the institutions would adopt calendar time the affirmative. The commenter proposed rule to account for enrollment in lieu of credit hours. Most institutions explained that a student’s home status in determining whether a student will continue to express maximum institution is responsible for designing is meeting maximum timeframe timeframe for their programs in credit and supervising its students and that requirements as measured in calendar hours which, as described above, does any written arrangement involving time. One commenter objected to account for differing enrollment statuses another entity, whether an eligible allowing institutions to measure throughout a student’s matriculation. institution or not, is ultimately subject maximum timeframe in calendar time Those institutions opting to measure in to the approval and review of the home, because it could negatively affect calendar time will likely do so having eligible institution. The eligible students for whom life challenges determined that it makes better sense for institution must itself be approved to preclude ongoing full-time attendance. the type of programs they offer, e.g., offer postsecondary education by a The commenter suggested an alternative competency-based programs or recognized authority in its home of allowing a maximum timeframe of programs requiring a prescribed set of country that provides oversight that is 200 percent of program length. The courses in each term for all students. the equivalent of that provided in the commenter also suggested Last, we remind commenters that a United States. The commenter further grandfathering students under existing student who fails to meet SAP, stressed that, as proposed, the rules standards as another alternative. including for reasons related to regarding written arrangements would
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circumscribe the ability of eligible opening the door to millions of students using the flexibilities provided in each foreign institutions to offer diverse receiving degrees without completing section. The examples below illustrate programs that include partnerships with the requirements deemed necessary by the practical application of both other universities that specialize in academic and industry leaders. The provisions. certain topics, and entities which commenter further expressed opposition Example 1 provide unique experiences within a to foreign institutions gaining access to, student’s program of study, as well as and leveraging control over title IV A student in the dissertation phase of access to career-enhancing internships. financial aid, explaining that this would her three-year doctoral program requests One commenter supported the be a direct and overtly questionable act, permission from the institution to proposed revisions to § 600.54(c) that constituting an ethical breach, and not conduct research in the United States. would permit written arrangements in the best interest of the Department, The student has not completed any between an eligible foreign institution American higher education institutions, portion of her program in the United and an ineligible entity, provided the or our nation’s students. States. Having concurred that her ineligible entity is an institution that Discussion: We appreciate the research can only be performed at a satisfies the definition in paragraphs commenters’ concerns over the need for facility located there, the institution (1)(iii) and (iv) of ‘‘foreign institution’’ universities to make flexible and diverse approves one year of research time in and the ineligible foreign institution research opportunities available for the United States. provides 25 percent or less of the doctoral candidates whose specialized Example 2 educational program. The same research often takes place over several commenter requested that, given the years, and requires travel to specific A student enrolled in a three-year potential for ongoing ramifications locations, including in the United doctoral program requests to study at an related to the COVID–19 pandemic, the States. However, the Department is not institution in the United States under a Department increase the percentage of convinced that providing those written arrangement. The home study permitted at recognized ineligible opportunities necessitates or warrants institution approves her request to take foreign institutions to as much as 50 allowing students who have already 12 credits at the Ph.D. level over two 16- percent. This, it was suggested, would completed 25 percent of their programs week semesters, 24 percent of the length provide students the flexibility to in the United States to spend an of the program as determined under navigate the changing situation without additional year conducting research in proposed § 668.5(g) (i.e., dividing the having to appeal for special the United States. This ‘‘stacking’’ number of semester, trimester, or dispensation in future circumstances would create the potential for a student quarter credit hours, clock hours, or the that are impossible to predict. enrolled in a four-year doctoral program equivalent that are provided by the Two commenters asked that the at an eligible foreign institution to eligible U.S. institution by the total Department reconsider the prohibition complete half of that program in the number of semester, trimester, or on foreign institutions offering any United States. As explained in the quarter credit hours, clock hours, or the portion of an eligible program through preamble of the NPRM, the equivalent required for completion of distance education found in current Department’s intention in proposing the program). Subsequently, while in § 600.51(d). One of those commenters these rules is to enhance the range of the dissertation phase of her program, suggested that there is sufficient educational opportunities available to the student requests to conduct research ambiguity in the applicable statute on U.S. students enrolled in eligible foreign in the United States. Because the one- which to base permitting some use of institutions, aligning them with those year limit on the amount of time a distance education, especially in view enjoyed by students attending domestic doctoral student may remain in the of the temporary flexibilities extended institutions, while adhering to the basic United States in order to conduct under the Coronavirus Aid, Relief, and principle that U.S. students borrowing research is measured in calendar time, Economic Security Act (CARES) Act.20 from the Direct Loan program for it is necessary for the institution to Another commenter expressed the enrollment in a program at an eligible consider any time the student has opinion that temporary flexibility, foreign institution should reside in the already spent studying or conducting under the CARES Act, for foreign country where that institution is research there. With 32 weeks of institutions to use distance education is located. We believe this balance to be previous study factored in, the student tacit acknowledgement by Congress of equally necessary at the graduate and is approved for an additional period of the difficulties American students face undergraduate level. research in the United States of up to 20 as a result of the ban on distance The Department is declining to permit weeks. education. In view of this, the stacking of the allowance for a student We thank the commenter who commenter asked that the Department to complete up to 25 percent of their responded to our request for comments modify its regulations to permit program at an eligible institution in the on whether written arrangements for American students to take up to 25 United States under proposed § 600.52. students studying in the U.S. should percent of their program of study via However, an exception is permitted for include organizations that are not distance education. independent research done by an eligible institutions. With respect to Finally, one commenter rejected the individual student in the United States internships, we agree with the proposal to allow students enrolled in for not more than one academic year for commenter that limiting these to eligible foreign institutions to complete up to 25 research conducted during the institutions would circumscribe percent of a program in the United dissertation phase of a doctoral program opportunities for U.S. students States based on concerns that, in (where the research can only be attending eligible foreign institutions in conjunction with other Department rule performed at a facility in the United a way that is contrary to the intent of changes, there would be no way to States) under current § 600.51. proposed regulations. The determine the fiscal and academic Nevertheless, we wish to clarify that the preponderance of internship quality of such foreign institutions, and proposed changes to § 600.52 do not opportunities is not at eligible the potential for the change to result in preclude an institution from allowing postsecondary institutions but rather doctoral students to study and/or with corporations, other businesses, and 20 S. 3548, 116th Congress (2020). conduct research in the United States non-profit organizations other than
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postsecondary institutions. Given the § 600.54(c) that would permit written proposed in the NPRM do not, in any extent to which relevant internship arrangements between an eligible way, increase the scope of foreign experience can enhance a student’s foreign institution and an ineligible institutions’ participation in the title IV educational experience and affect a entity (other than in the United States), programs, nor do they loosen the graduate’s employment prospects, we provided the ineligible entity is an existing financial responsibility are convinced that U.S. students institution that satisfies the definition in standards that eligible foreign attending eligible foreign institutions paragraphs (1)(iii) and (iv) of ‘‘foreign institutions must adhere to. Regarding should not be placed at a disadvantage institution’’ and the ineligible foreign academic quality and the potential for relative to their counterparts attending institution provides 25 percent or less of students to receive degrees that their domestic institutions, and should have the educational program. However, we work does not merit, we note that the the same opportunities to pursue disagree with the commenter that the proposed regulations make no changes internships in any country including the percentage of a program that is provided to the current rules governing United States. by the ineligible entity should be institutional eligibility. Lastly, we are While appreciative of the increased to 50 percent. Domestic uncertain of what the commenter means commenter’s position that increased institutions entering into a written with reference to foreign institutions latitude be accorded coursework as arrangement with an ineligible entity to gaining access to or leveraging control well, we are not similarly persuaded of offer more than 25 percent, but less than over the title IV programs. As previously the need to allow U.S. students 50 percent of an eligible program, must discussed, eligible foreign institutions attending eligible foreign institutions to obtain accreditor approval. No similar already participate in the Direct Loan take coursework in the United States, as protocol exists for foreign institutions. program, and the title IV, HEA programs part of their eligible program, at any Requiring that a non-eligible entity are not structured in such a way that it entity other than an eligible institution. satisfy the regulatory definition of is possible for any institution, foreign or Unlike the situation in foreign ‘‘foreign institution’’ does reasonably domestic, to leverage control over them. countries, where another eligible assure some degree of program integrity. Changes: The definition of Foreign institution may not exist or be within a However, the Department is not institution in proposed § 600.52 reasonable travel distance for ground- persuaded that this is an adequate (Foreign institution, paragraph (1)(ii)(C)) based instruction, there is no lack of substitute for accreditor approval where is changed to remove internships and eligible institutions in the United States the percentage of the eligible program externships from the list of program- with which to execute a written offered by an ineligible entity would be related activities that may only be arrangement. We believe the greater than 25 percent. Moreover, it performed in the United States at an partnerships with other universities in would create a standard for eligible eligible institution. Paragraph specialized topics and unique student foreign institutions lower than that (1)(ii)(C)(2) is added to allow experiences referred to by the applied to domestic institutions. participation in an internship or commenter can readily be secured In response to the commenters who externship provided by an ineligible through written arrangements with one asked that the Department reconsider organization as described in or more of the 6,000 plus eligible the prohibition on foreign institutions § 668.5(h)(2). institutions in the United States. In offering any portion of an eligible Request for Review (§ 668.113) addition, we are concerned that an program through distance education institution in a foreign country may not reflected in current § 600.51(d), we note Comments: One commenter expressed have sufficient opportunity to enforce that this prohibition (sec. 481(b)(3) of strong support for the proposed changes elements of a written arrangement with the HEA) is statutory and provides no to § 668.113, establishing that if a final a non-eligible entity located in the U.S., flexibility. Although the CARES Act audit determination or final program making such arrangements inherently does authorize the use of distance review determination includes risky. education by eligible foreign liabilities resulting from the institution’s As a result, we are amending institutions, and we believe that classification of a course or program as proposed § 600.52 (Foreign institution) students benefit from having access to distance education, or the institution’s to remove internships and externships distance learning opportunities, assignment of credit hours, the from the list of program-related including while enrolled at a foreign Secretary would rely on the activities that may only be performed in institution, that authority is temporary requirements of the institution’s the United States at an eligible and tied to the national emergency accrediting agency or State approval institution, and specifying that declared on March 13, 2020. agency regarding qualifications for internships and externships may be We disagree with the commenter who instruction and whether the work provided by an ineligible organization objected to allowing students enrolled associated with the institution’s credit as described in proposed § 668.5(h)(2). in foreign institutions to complete up to hours is consistent with commonly Proposed § 668.5(h)(2) clarifies that the 25 percent of a program in the United accepted practices in higher education. limitations on written arrangements are States, and asserted that the Department Another commenter, offering not applicable to the internship or would be unable—(1) To determine the qualified support for the proposed externship portion of a program if the fiscal and academic quality of such changes, suggested that the Department internship or externship is governed by foreign institutions; or (2) to prevent clarify which fields would be suitable the standards of an outside oversight millions of students from receiving for distance education as the criteria for entity, such as an accrediting agency or degrees without completing the applying the standards in § 668.113. To government entity, that require the requirements deemed necessary by make these determinations, the oversight and supervision of the academic and industry leaders. We commenter offered that the Department institution, where the institution is further disagree that these changes should analyze whether the use of responsible for the internship or facilitate foreign institutions gaining distance education is appropriate for externship and students are monitored access to or leveraging control over title and sustains the quality of instruction in by qualified institutional personnel. IV financial aid. First, eligible foreign those online programs where a final We thank the commenter for writing institutions already participate in the program review or audit determination in support of the proposed revisions to Direct Loan program. The changes has assessed liabilities.
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Discussion: We thank the commenter the financial standards in § 668.15 to environment, public health or safety, or who expressed strong support for these institutions that undergo a change of State, local, or Tribal governments or proposed changes. In response to the ownership and control. The commenter communities in a material way (also commenter who suggested the noted that historically, the Department referred to as an ‘‘economically Department clarify which fields are has used only two of the financial significant’’ rule); suitable for distance education and measures in this section—the acid test (2) Create serious inconsistency or make determinations regarding the ratio and positive tangible net worth or otherwise interfere with an action taken appropriateness of that mode of positive unrestricted net asset or planned by another agency; instruction for individual programs, we standards—to evaluate institutions that (3) Materially alter the budgetary note that the applicable statute and changed ownership and control. The impacts of entitlement grants, user fees, regulations place no constraints on the commenter argued that applying, or or loan programs or the rights and fields of study in which an institution potentially applying, all of § 668.15 to obligations of recipients thereof; or may offer instruction using distance changes in ownership would constitute (4) Raise novel legal or policy issues education, nor do they grant the a significant change in Department arising out of legal mandates, the Department authority to make such practice that would more appropriately President’s priorities, or the principles determinations. Assessing the quality of call for a substantive rulemaking to stated in the Executive order. an educational program offered by an clarify the relationship between the two OMB has determined that this rule is an economically significant action and eligible postsecondary institution or sections of the regulations that address would have an annual effect on the establishing if that program may be financial responsibility—§§ 668.15 and economy of more than $100 million. offered using distance education is 668.171 through 668.175. In addition, This regulation will enable institutions entirely within the purview of the the commenter stated that the proposed to harness the power of innovation to institution’s accrediting agency and, in change to the title and applicability of expand postsecondary options, leverage some cases, the State agency with this section was presented during advances in technology to improve oversight responsibilities. Were an negotiated rulemaking as a technical student learning, and allow students to institution to offer a program through update rather than a substantive change. progress by demonstrating competencies distance education that its accrediting Given the significant concern of many rather than seat time. According to the agency or State agency had determined institutions and others for the Department’s FY 2020 Budget may not be taught using that modality, Department to initiate a rulemaking on Summary, Federal Direct Loans and Pell the Department would hold the financial responsibility standards and Grants accounted for almost $124 institution potentially liable for all of the composite score, the commenter billion in new aid available in 2018. the title IV funds disbursed to students urged the Department to withdraw this Given this scale of Federal student aid enrolled in that program. The proposed proposed change and defer making amounts disbursed yearly, the addition changes to § 668.113 do not, in any way, revisions to changes of ownership of even small percentage changes could compromise the Department’s oversight standards to a broader rulemaking result in transfers between the Federal authority in this area and, if anything, discussion. Government and students of more than clarify that institutions are accountable Discussion: In as much as the to accreditor and State agency $100 million on an annualized basis. Department intended to clarify that Pursuant to the Congressional Review requirements in offering programs § 668.15 applies only to institutions that Act (5 U.S.C. 801 et seq.), the Office of through distance education. undergo a change of ownership and Changes: None. Information and Regulatory Affairs control, we agree with the commenter designated this rule as a ‘‘major rule,’’ Past Performance (§ 668.174) that a broader discussion is warranted, as defined by 5 U.S.C. 804(2). particularly since the Department Under Executive Order 13771, for Comments: Several commenters intends to conduct future negotiated agreed that the proposal that an each new regulation that the rulemaking for the financial Department proposes for notice and institution is not financially responsible responsibility standards, including if a person who exercises substantial comment or otherwise promulgates that those applicable to changes of is a significant regulatory action under ownership or control over an institution ownership. also exercised substantial ownership or Executive Order 12866, and that Changes: We have withdrawn the imposes total costs greater than zero, it control over another institution that proposed changes to § 668.15. closed without a viable teach-out plan must identify two deregulatory actions. approved by that institution’s Executive Orders 12866, 13563, and For FY 2020, any new incremental costs accrediting agency and/or state 13771 associated with a new regulation must be fully offset by the elimination of regulatory body. The commenters Regulatory Impact Analysis believed the proposal change will help existing costs through deregulatory to protect students attending Under Executive Order 12866, the actions. The rule is considered an E.O. institutions that close and ensure that Office of Management and Budget 13771 deregulatory action. We believe individuals affiliated with an institution (OMB) determines whether this the effect of this regulation will be to that closed without a viable teach out regulatory action is ‘‘significant’’ and, remove barriers for development of plan, will not participate again in the therefore, subject to the requirements of distance and direct assessment title IV programs. the Executive order and subject to programs and their participation in title Discussion: The Secretary thanks the review by OMB. Section 3(f) of IV, HEA funding, reduce the commenters for their support. Executive Order 12866 defines a Department’s role in approving Changes: None. ‘‘significant regulatory action’’ as an programs, and promote innovation in action likely to result in a rule that higher education. We believe this Factors of Financial Responsibility may— regulatory action will be, in sum, (§§ 668.15 and 668.171–668.175) (1) Have an annual effect on the deregulatory. Comments: One commenter economy of $100 million or more, or As required by Executive Order questioned the need for, and adversely affect a sector of the economy, 13563, the Department has assessed the implications of, the proposal to apply productivity, competition, jobs, the potential costs and benefits, both
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quantitative and qualitative, of this likely to persist in and complete their a program offered entirely through regulatory action, and we are issuing programs and institutions will be much direct assessment. these regulations only on a reasoned more equipped to drive student The regulations acknowledge that determination that their benefits justify success.21 22 The regulations define or subscription-based programs are their costs. In choosing among clarify terms such as ‘‘correspondence permissible and provide instructions to alternative regulatory approaches, we course,’’ ‘‘distance education,’’ and institutions about how to disburse aid selected those approaches that ‘‘regular and substantive interaction,’’ and evaluate satisfactory academic maximize net benefits. Based on the and would streamline the current progress for students enrolled in these analysis that follows, the Department regulations to reduce the complexity of programs. These regulations also reduce believes that the regulations are performing clock-to-credit hour the steps involved in gaining approval consistent with the principles in conversions, disbursing aid to students for direct assessment programs, which Executive Order 13563. enrolled in subscription-based reduces the burden associated with We also have determined that this programs, and ensuring that programs administering these programs and regulatory action will not unduly align with program length restrictions, reduces the risk that an institution interfere with State, local, or Tribal while improving worker mobility across could invest resources in designing a governments in the exercise of their State lines. In some instances, the high-quality program that the governmental functions. definitions clarify terms used in, but not Department denies or unnecessarily In accordance with the Executive defined by, the HEA. In other cases, the delays. Institutions that better orders, the Department has assessed, regulations codify program understand the rules for administering both quantitatively and qualitatively, administration requirements that had Federal student aid in circumstances the potential costs and benefits of this previously been communicated only that depart from traditional delivery regulatory action. through sub-regulatory guidance, to give models are more likely to invest in In this regulatory impact analysis, we institutions the certainty they need to developing one of those models, and discuss the need for regulatory action, expand the postsecondary education administering it properly, thus avoiding the potential costs and benefits, net options that they make available to improper payments and improving the budget impacts, and regulatory students. student experience. alternatives we considered. For instance, while CBE programs The regulations also acknowledge Elsewhere in this section, under using direct assessment have been that, given the cost of developing Paperwork Reduction Act of 1995, we permitted by statute since 2006, most sophisticated technology-driven identify and explain burdens institutions continue to evaluate instructional tools or building specifically associated with information progress in CBE programs based on specialized facilities on college collection requirements. measures of time (or time equivalency) campuses, a rational approach may be to Need for Regulatory Action rather than a student’s demonstration of rely on a third-party provider with a competency. This is largely due to much broader reach than an individual The emphasis in the regulations is on uncertainties regarding how to disburse institution or on industry partners who clarifying the distinctions between and calculate return-to-title IV for have other incentives to maintain state- distance education and correspondence students enrolled in programs that of-the-art facilities and equipment. Until courses, affirming the permissibility of measure competencies rather than time. institutions fully understand what is team teaching models, improving As a result, the potential benefits of permissible in the development and worker mobility by accommodating CBE programs, such as accelerated implementation of innovative delivery differences in licensure requirements learning and completion as well as models, institutional leaders will across State lines, simplifying providing better assurances to remain largely risk averse, and solutions conversions between clock and credit employers that graduates are prepared that would otherwise help large hours to enable students to meet for workplace demands, were mitigated numbers of students will not be made licensure requirements while also because programs still were required to available to them. earning credits more likely to transfer to adhere to time-based title IV Finally, the regulations change the other institutions, establishing disbursement methodologies.23 These return of title IV funds and satisfactory regulations regarding subscription-based regulations provide needed certainty to academic progress provisions to reduce programs so that institutions can institutions about how to disburse aid to administrative burden and increase confidently implement programs that students enrolled in CBE programs. The flexibility for many postsecondary measure competencies rather than seat regulations also eliminate a significant institutions offering innovative time, and reducing barriers that limit legal obstacle to the adoption of direct programs. Reducing the amount of the number of direct assessment assessment CBE programs by permitting burden and expense associated with the programs available to students. title IV-eligible programs to be offered administration of the title IV, HEA These changes benefit institutions by partly through direct assessment and programs for unique or non-traditional enabling them to employ innovative partly using credit or clock hours. programs will also encourage methods and models without undue risk Eliminating this restriction makes it institutions to offer programs that do not of inadvertently violating title IV easier for institutions to experiment fit into the traditional mold and requirements. These options benefit with direct assessment without having improve the available offerings for students by expanding the number of to immediately establish and implement students. postsecondary education opportunities The Department believes this available to them, including those who 21 www2.deloitte.com/us/en/insights/industry/ regulatory action will have an annual may have been poorly served by more public-sector/improving-student-success-in-higher- effect on the economy of more than traditional ‘‘seat-time’’ instructional education.html. $100 million. If students have more models. By providing a larger variety of 22 www.texaspolicy.com/new-study-less- postsecondary options to select from postsecondary options and strategies expensive-competency-based-education-programs- and if more students persist to just-as-good-as-traditional-programs/. such as blended learning, adaptive 23 www2.deloitte.com/us/en/insights/industry/ completion, the number of students who learning, and competency-based public-sector/improving-student-success-in-higher- enroll for the full duration of a program education, students may be much more education.html. may increase. For example, although
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extremely limited in availability now, if programs.25 In many cases, more licensing boards may resist change–– there were fewer barriers to starting a students are taking at least one online although in the wake of COVID–19 we direct assessment program, there could class while enrolled in a traditional are seeing greater receptivity among be an increase in the number available, ground-based program. licensing boards to distance learning.30 and perhaps adult learners would find Correspondingly, there has also been As can be seen in Table 1 below, this to be a more satisfying way to learn, significant growth in the number of which is based on data collected by the or the only way they can juggle the students who are enrolled in exclusively National Center for Education Statistics demands of work, school, and family. online programs.26 We have also seen (NCES), while the percentage of While a limited number of significant redistribution of online students who are enrolled exclusively in experienced institutions with enrollments as some large non-profit online programs has increased slightly established direct assessment programs and public institutions have increased between 2013 and 2018, the largest may increase their program offerings, it their market share, while at the same growth has been in the percentage of is difficult to predict whether larger time some proprietary schools that once students who take at least one, but not numbers of students will be attracted to dominated distance education delivery all, of their classes online. The number higher education, in general, or if the are suffering sizeable enrollment losses of students engaged in online learning current number of students would be and even closures. Overall, growth in grew between 2013 and 2018 from distributed differently across the the number of students enrolled approximately 5.5 million to 6.9 landscape of available programs. Direct exclusively online has been moderate, million. This suggests that learning assessment programs may be increasing 22 percent between 2013 and modalities will change as innovation considerably more attractive to busy 2018. The number of students taking at creates a broader range of options. adult learners who would get credit for least one online class has increased 28 However, despite the increase in what they know from prior work or life percent between 2013 and 2018.27 28 29 enrollments in online options, the total experience.24 While current providers of CBE and number of postsecondary enrollments The demand for distance education direct assessment learning do so has been in decline for the last several programs has visibly increased in recent through distance learning modalities, it years. Therefore, it is clear that an years. In 2003–04, 15.6 percent of is possible that, as regulatory increase in the percentage of students undergraduate students took at least one requirements become clearer, those who enroll in online classes will, alone, distance education class and only 4.9 institutions that primarily provide not likely result in overall increases in percent of students were exclusively in ground-based education will also postsecondary enrollments. College distance education while by 2015–16, develop and implement CBE and direct enrollments are most dependent upon 43 percent of undergraduate students assessment programs. On the other economic cycles, so changes in delivery took at least one distance education hand, programs that lead to licensure models may be less important than class and approximately 11 percent may be slower to introduce CBE or macroeconomic conditions in were in exclusively distance direct assessment models since determining total enrollments.
TABLE 1
No-distance education At least one distance All-distance education All institutions Total students courses course, not all courses (#) (%) (%) (%)
2018 ...... 20,008,434 65.3 18.4 16.3 2017 ...... 19,765,598 66.3 18.0 15.7 2015 ...... 19,977,270 70.2 15.4 14.4 2013 ...... 20,375,789 72.9 14.1 13.1 4-year (total): 2018 ...... 13,901,011 64.3 18.0 17.6 2017 ...... 13,823,640 65.8 17.3 16.9 2015 ...... 13,486,342 69.7 14.4 15.9 2013 ...... 13,407,050 73.0 12.2 14.8 2-year (total): 2018 ...... 6,107,423 67.6 19.2 13.2 2017 ...... 5,941,958 67.5 19.5 13.0 2015 ...... 6,490,928 71.2 17.6 11.2 2013 ...... 6,968,739 72.7 17.6 9.8 Public: 2018 ...... 14,639,681 66.1 21.5 12.3 2017 ...... 14,560,155 67.8 20.8 11.4 2015 ...... 14,568,103 72.0 18.0 10.0 2013 ...... 14,745,558 74.6 16.7 8.7 Private Non-Profit: 2018 ...... 4,147,604 69.7 10.1 20.2
24 onlinelibrary.wiley.com/doi/full/10.1002/ nces.ed.gov/programs/digest/d18/tables/dt18_ 29 U.S. Department of Education, National Center cbe2.1008. 311.22.asp. for Education Statistics, IPEDS, Spring 2019, Fall 25 U.S. Department of Education, National Center 26 www.insidehighered.com/digital-learning/ Enrollment component (provisional data)., Number for Education Statistics, Digest of Education article/2019/12/11/more-students-study-online-rate- and percentage distribution of students enrolled at title IV institutions, by control of institution, Statistics 2018, Table 311.22. Number and growth-slowed-2018. student level, level of institution, distance 27 _ percentage of undergraduate students enrolled in nces.ed.gov/programs/digest/d18/tables/dt18 education status of student, and distance education distance education or online classes and degree 311.15.asp. status of institution: United States, fall 2018. programs, by selected characteristics: Selected 28 nces.ed.gov/programs/digest/d14/tables/dt14_ 30 ij.org/wp-content/themes/ijorg/images/ltw2/ years, 2003–04 through 2015–16. Available at 311.15.asp. License_to_Work_2nd_Edition.pdf.
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TABLE 1—Continued
No-distance education At least one distance All-distance education All institutions Total students courses course, not all courses (#) (%) (%) (%)
2017 ...... 4,106,477 71.3 9.5 19.2 2015 ...... 4,063,372 75.0 8.5 16.5 2013 ...... 3,974,004 80.0 6.9 13.1 Private For-Profit: 2018 ...... 1,221,149 41.0 8.6 50.4 2017 ...... 1,098,966 29.0 11.1 59.9 2015 ...... 1,345,795 35.9 8.6 55.5 2013 ...... 1,656,227 40.7 7.6 51.7
Growth in the number and percentage online at proprietary institutions as distance education courses and the of online learners was especially strong compared to 821,296 students who were value they place on campus activities, among private not-for-profit institutions, enrolled exclusively online at private and the decisions institutions make where students who took all courses non-profit institutions and 1.6 million about resuming on-campus programs. through distance education increased who were enrolled exclusively in online Additionally, as noted by the over 54 percent, from 13.1 to 20.2 programs at public institutions. These commenter, adverse economic percentage points. At 2-year data suggest that increases in conditions have been associated with institutions, the percentage of students enrollments among exclusively online increases in postsecondary enrollment, taking all courses online increased from courses do not necessarily result in particularly for programs with an 9.8 to 13.2 percentage points, almost a increased number of total postsecondary emphasis on career training and 35-percent jump from 2013 to 2018. enrollments. development. Postsecondary enrollment However, total enrollments at 2-year The information about the number increased substantially from 2007–08 to institutions during that same time and distribution of distance education 2010–11 as students responded to the period decreased by over 850,000 programs and students has clearly been recession during that time.31 Table 2 students. temporarily altered in 2020 because of reflects this increase and the significant While the percentage of students COVID–19 and the disruption of growth in proprietary enrollment during enrolled exclusively in distance ground-based campus operations during this period. The shape of the economic learning is highest among proprietary times of mandatory or recommended recovery from COVID–19 and the institutions (60 percent), relatively few quarantine. While some students may experience and outcomes of those who students are enrolled at these have withdrawn because of COVID–19 pursued postsecondary credentials institutions (only approximately 1 related circumstances, the Department during the last recession may affect how million of the nearly 20 million enrolled believes that most students continued big an increase is seen in future in postsecondary education in 2017 their program, albeit at least temporarily postsecondary enrollment. The were enrolled at proprietary in a distance format. The extent to Department believes it is reasonable to institutions). There have been sizable which this transformation continues in expect some additional increase in new decreases in total enrollments at the remainder of 2020 and beyond will distance education students, the proprietary institutions between 2013 depend on the further developments possibility of which is incorporated into and 2017, and in 2017 only 659,379 with respect to COVID–19, the the cost estimate in the Net Budget students were enrolled exclusively experience students have in their Impact section of this RIA.
TABLE 2 32—TRENDS IN FALL ENROLLMENT 2007–2013 BY CONTROL OF INSTITUTION
Public Private Proprietary Total Year Number Percent Number Percent Number Percent Number Percent
2007 ...... 13,603,772 ...... 3,595,466 ...... 1,478,231 ...... 18,677,469 ...... 2008 ...... 14,090,863 3.6 3,684,190 2.5 1,778,731 20.3 19,553,784 4.7 2009 ...... 14,936,402 6.0 3,793,751 3.0 2,123,270 19.4 20,853,423 6.6 2010 ...... 15,279,455 2.3 3,881,630 2.3 2,430,657 14.5 21,591,742 3.5 2011 ...... 15,251,185 ¥0.2 3,954,173 1.9 2,368,440 ¥2.6 21,573,798 ¥0.1 2012 ...... 15,000,302 ¥1.6 3,973,422 0.5 2,174,457 ¥8.2 21,148,181 ¥2.0 2013 ...... 14,856,309 ¥1.0 3,990,858 0.4 2,000,883 ¥8.0 20,848,050 ¥1.4
The CBE marketplace overall has also the postsecondary education direct assessment component of CBE seen significant attention from within community and general public, but the has not, potentially because of the
31 Foote, A. & Grosz, M. (2019). The Effect of content/dam/Census/library/publications/2018/ Statistics 2018, Table 303.20: Total fall enrollment Local Labor Market Downturns on Postsecondary demo/P20-580.pdf). in all postsecondary institutions participating in Enrollment and Program Choice. MIT Press Barr, Andrew, and Sarah Turner. 2012. ‘‘Out of title IV programs and annual percentage change in Journals. a Job and into School: Labor Market Policies and enrollment, by degree-granting status and control of Schmidt, Erik, ‘‘Postsecondary Enrollment Before, College Enrollment during the Great Recession.’’ institution: 1995 through 2017. Available at https:// Working Paper, University of Virginia. During, and Since the Great Recession,’’ P20–580, nces.ed.gov/programs/digest/d18/tables/dt18_ Current Population Reports, U.S. Census Bureau, 32 U.S. Department of Education, National Center 303.20.asp. Last Accessed May 26, 2020. Washington, DC, 2018. (https://www.census.gov/ for Education Statistics, Digest of Education
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length of time it takes for the Four-hundred-thirty of the 501 One of the three top barriers to Department to review applications for respondents reported being interested implementing CBE programs, as cited by direct assessment programs, and in, or in the process of, implementing over 50 percent of the responding because several audits by the CBE programs, while 71 indicated no institutions, was ‘‘Federal student aid Department’s OIG in the past decade interest. Some 57 institutions stated that regulations.’’ The other two key barriers have been sharply critical of the they were currently offering at least one to entry included the need to change oversight of direct assessment by the CBE program, with these institutions, in business processes and the high costs Department and accrediting aggregate, offering a total of 512 CBE associated with start-up. While the agencies.33 34 35 The Department also programs. The largest portion of survey results point to a guarded believes that another recent report by programs (427 of 512) was at the optimism on the growth of CBE the Department’s Inspector General, undergraduate level with 85 at the programs, this optimism is tempered by which found one institution’s team graduate level. The highest a perception that the regulatory climate teaching model did not comply with concentration of CBE programs was in needs to be flexible and conducive to title IV, HEA requirements, may have the fields of nursing and computer expansion of CBE programs; however, deterred other institutions that were science. Given the requirement for the report suggests that it is crucial to considering the development of CBE nursing students to participate in preserve consumer protections. programs. Even the threat of an audit clinical rotations, it is likely that CBE The Department agrees with this finding recommending the return of programs in nursing were designed to theme, as we noted in the executive hundreds of millions of dollars in title target students who are already summary of the NPRM that ‘‘the IV funds could dissuade institutions registered nurses (with an associate purpose of these distance education and innovation regulations is to reduce from pursuing such innovations. This degree) and now wish to complete a barriers to innovation in the way may still be the case even if audit bachelor’s degree. Over 50 percent of institutions institutions deliver educational recommendations are not accepted by reported CBE undergraduate materials and opportunities to students, the Department.36 enrollments of no more than 50 students and assess their knowledge and The Department’s data does not break per program while only a small number understanding, while providing out information about competency- of institutions (approximately 4 percent) reasonable safeguards to limit the risks based education students to the same enrolled more than 1,000 undergraduate to students and taxpayers.’’ extent as it does for distance education students in CBE programs at their Therefore, these final regulations send students, but a number of surveys and institution. Thus, assuming these a signal to the higher education articles provide some background on findings are characteristic of the overall community that the Department is existing programs. According to the CBE landscape, it appears that most committed to reducing regulatory 2018 National Survey of Postsecondary institutions are still in the early stages burden to make way for responsible Competency-Based Education of implementing CBE programs with innovations, such as CBE programs and (NSPCBE), co-authored by American only a handful of institutions operating direct assessment programs. Further, the Institutes of Research (AIR) and large-scale programs. regulations would enable institutions to Eduventures, a majority of respondents Similar results were described in the develop new title IV disbursement believe that CBE will experience strong 2019 survey that had 602 respondents models, such as subscription-based growth although they also perceive that with 54 percent from public programs, to align the delivery of aid a number of barriers to implementation institutions, 42 percent from private, with programs that allow students to remain.37 The survey was sent to over nonprofit institutions and 4 percent complete as many classes as possible 3,000 institutions including primarily 2- were from proprietary institutions.38 Of during a given period of time, but to and 4-year institutions listed in the the 588 programs offered by 64 also pace themselves appropriately Integrated Postsecondary Education institutions, 84 percent were based on other demands and learning Data System (IPEDS). About 69 percent undergraduate and 16 percent were needs. of respondents were 4-year institutions graduate programs. The majority of While technology has transformed the and 31 percent were 2-year institutions. existing programs remain small, with 53 way almost every industry in America A total of 501 institutions replied to the percent with enrollment under 50 does business, it may have not survey, representing a survey response students.39 As in the 2018 survey, fundamentally transformed the way we rate of 16 percent. It is possible that the popular fields for competency-based educate students, monitor their survey may suffer from selection bias if programs include nursing, computer progress, or diagnose when and what the institutions that completed the and information sciences, and business kind of additional support services a survey were more likely to be those administration.40 Seventy-seven percent student needs. Many institutions are institutions considering adding CBE of responding institutions with educating postsecondary students today programs, which would mean that the competency-based programs reported in a very similar manner to methods and practices used a hundred years ago. survey results could not be accurately that they are eligible for Federal Nonetheless, there have been some early projected to the full postsecondary financial aid. Of those, 75 percent report innovators who have made advances system. they maintain that eligibility by using a course structure to map to credit despite the Department’s lagging in this 41 area. In that regard, this rule represents 33 www2.ed.gov/about/offices/list/oig/ hours. auditreports/fy2014/a05n0004.pdf. the Department’s effort to catch up with 34 www2.ed.gov/about/offices/list/oig/ 38 American Institutes for Research, State of the innovations that are already taking place auditreports/fy2015/a05o0010.pdf. Field—Findings from the 2019 National Survey of at forward-looking institutions. We seek 35 www2.ed.gov/about/offices/list/oig/ Postsecondary Competency-Based Education, to promote continuing innovation, both auditreports/fy2016/a05p0013.pdf. available at www.air.org/sites/default/files/ in distance learning and ground-based 36 National-Survey-of-Postsecondary-CBE-Lumina- www2.ed.gov/documents/press-releases/ education. The regulations update our 20190111-wgu-audit.pdf. October-2019-rev.pdf. 37 www.air.org/sites/default/files/National- 39 Id., p. 25. definitions of ‘‘distance education’’ and Survey-of-Postsec-CBE-2018-AIR-Eduventures-Jan- 40 Id., p.26. ‘‘correspondence courses’’ to 2019.pdf. 41 Id., p.31. acknowledge that as a result of CBE and
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direct assessment, many students focused on the RIA analysis and Department did waive several enrolled in distance education progress emphasized that the Department should provisions in line with the proposed at their own pace, which is a have accounted for the effects of changes in these final regulations to characteristic that in the past was COVID–19 and the resulting increase in facilitate the response to COVID–19. For determinant of a correspondence course. distance education. The commenter example, the Department waived With the introduction of adaptive noted that previous recessions had preapproval requirements that would learning and other technologies, a resulted in significant increases in have otherwise delayed institutions in student enrolled in distance education postsecondary enrollment and that the their efforts to move to distance is likely to be learning at his or her own specifics of the COVID–19 situation learning, and it permitted accreditors to pace, although that learner continues to would likely result in students choosing develop policies and procedures to have regular and substantive distance education options over enable rapid transition to distance interactions with the instructor(s). The traditional, campus-based programs. learning without going through the regulations acknowledge that adaptive The commenter also pointed out that regular policy-making process that learning can play an important role in distance education and competency- would have taken months to a student’s educational experience and based programs are often attractive to accomplish. In addition, the Department can facilitate regular and substantive veterans, students of color, low-income permitted students enrolled at foreign interaction between students and students, students who are parents, or institutions to complete up to 25 instructors by providing students with working students who are percent of their program at an eligible continuous feedback regarding their disproportionately affected by the U.S. institution or an ineligible foreign learning. The Department appreciates COVID–19 health effects and economic institution so that students whose the considerable effort of negotiators to disruption. The commenter encouraged primary institution suspended recommend and agree to regulatory the Department to rescind the rule, open operations could continue their changes that promote and enable a new round of negotiated rulemaking education elsewhere without flexibility, while at the same time in light of COVID–19, or, at least to redo jeopardizing their continued participate ensuring the preservation of student the cost estimates and regulatory in title IV programs. The consequences protections and the responsible analysis for these final regulations to of COVID–19 and subsequent economic distribution of title IV, HEA assistance. take COVID–19 impacts into account. disruption are part of the conditions and It is the combination of changes The Department appreciates the environment within which these addressed in these final regulations that comment and recognizes that the NPRM regulations will have an impact, and cumulatively would have sufficient was published on April 2, 2020, when while it may be impossible to impact on the economy to warrant we were still understanding the impact definitively distinguish between the classifying this regulation as that COVID–19 could have on effects of the regulations versus the economically significant. Specifically, enrollments in distance learning. The effects of COVID–19 on the transition to while there could be increases in the rapid transformation of the distance learning, we attempt in this number of students seeking title IV, postsecondary educational landscape as RIA to do so. In light of the recent, HEA assistance, or the number of a result of COVID–19 supports the COVID–19 related transformation in students who persist to completion, postsecondary education, the these increased Federal expenditures Department’s point that the creation of innovative postsecondary programs, Department has updated some of the could result in the preparation of a more information about such programs and capable workforce and a better-educated including distance education and has considered how the experience over citizenry. As more adults are required to competency-based programs, will be the past months may increase or obtain additional postsecondary courses driven by student demands and other accelerate institutions’ plans to develop or credentials throughout their events that generate demand. The additional distance or competency- professional lifetime, the availability of changes in these final regulations allow based programs. This is addressed in the more efficient learning opportunities, those student-driven program Net Budget Impact section of this RIA. such as CBE and direct assessment development decisions to be learning, will enable more adults to implemented more efficiently while Costs, Benefits, and Transfers evolve in their careers. maintaining appropriate safeguards for students. The Department anticipates that the Summary of Comments and Changes Another consideration is that the cost regulations would affect students, IHEs, From NPRM estimate for the NPRM and these final accrediting agencies, and the Federal As described throughout this regulations is intended to capture the Government. State government may also preamble, the Department considered a impacts of the regulatory changes. The be impacted in some instances. Table 3 number of comments and made some rapid transformation to distance refers to key changes described in the technical corrections and changes in education occurred independent of identified preamble sections and these final regulations. One comment these final regulations, although the summarizes potential impacts.
TABLE 3—SUMMARY OF KEY CHANGES
Change Affected parties Impacts
Reg Section 600.2—Definitions
Create definition for ‘‘academic engagement’’ ... Students/Institutions/ Clarifies and expands the types of activities that verify student enroll- Federal Government. ment for the purpose of performing return to title IV funds calcula- tions while standardizing the Department’s definition of ‘‘academic engagement’’ for use elsewhere in the regulations. Prevents im- proper payment of title IV funds to students who are not legiti- mately engaged in postsecondary learning.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Defines ‘‘clock hour’’ for distance education ...... Students/Institutions/ Codifies current policy allowing institutions to record clock hours Federal Govern- earned through distance education but requires such hours to be ment/Accrediting taught through synchronous or, as permitted by these final regula- Agencies. tions, asynchronous instruction by the instructor. Clock hours may be earned through distance education only when permitted by li- censing boards or other regulatory entities that require enrollment to be measured in clock hours. Regulatory clarity may encourage greater use of distance education to provide the didactic portion of occupationally focused programs, thus expanding access to stu- dents who are working, raising families, or live far from campus. As described in the preamble and further discussed after this table, potential concerns with allowing asynchronous instruction include a lack of direct interaction and the use of the hours for the comple- tion of homework. Modifies definitions of ‘‘correspondence course’’ Students/Institutions/ Benefits students by encouraging the development of programs and ‘‘distance education’’ to clarify that it is Federal Govern- taught by instructional teams consisting of experts in the various permissible to employ a team approach to in- ment/Accrediting elements of high-quality instruction, as opposed to a more tradi- struction and clarifies that the requirements Agencies. tional model that relies on a single faculty member to meet all of for regular interaction are met if the institution the student’s learning needs. Benefits students and institutions by provides opportunities for interaction, even if potentially reducing some of the costs of instruction. Reduces the each student does not take advantage of need for institutions to require students to engage in less sub- each opportunity. Removes self-pacing from stantive work solely for the purpose of documenting that regular definition of ‘‘correspondence course’’ as it is and substantive interaction took place in order to document that a not a necessary characteristic for such course is offered using distance education and is not a cor- courses. respondence course. Refines definition of ‘‘credit hour’’ to reflect cur- Students/Institutions/ Maintains time-based standard to ensure consistency among institu- rent sub-regulatory guidance in DCL GEN– Federal Government. tions regarding the awarding of academic credit, while also cre- 11–06 that references a variety of delivery ating the necessary flexibility to consider that many new edu- methods. cational delivery models are not based on seat time. Codifies flexi- bility provided in sub-regulatory guidance under the Department’s Dear Colleague Letter GEN–11–06. Amends definition of ‘‘distance education’’ by Students/Institutions/ Updates regulations to remove references to outdated forms of elec- removing references to specific kinds of elec- Federal Govern- tronic media and to ensure that new forms of electronic media will tronic media used in providing instruction, rel- ment/Accrediting be covered by the regulations in the future. Acknowledges that the egating the determination of instructor quali- Agency. use of interactive learning technologies can facilitate regular and fications to accrediting agencies, including substantive interaction between students and instructors. Benefits the use of interactive technologies to meet institutions by more clearly explaining regulatory compliance re- the requirements for ‘‘substantive inter- quirements for educational innovations, thus reducing risk and po- action,’’ and establishing standards for ‘‘reg- tential financial penalties for those institutions pursuing educational ular interaction’’ that include predictable op- innovation. Benefits students by expanding learning opportunities portunities for interaction and monitoring of and flexibilities, including personalized learning, without unneces- student engagement. sary bureaucratic hurdles for the purpose of meeting title IV re- quirements for regular participation. Benefits the Federal Govern- ment by ensuring that students are receiving high-quality education when using Federal student aid to pay for that education. Benefits students by ensuring that online learning includes meaningful inter- actions with qualified instructors who can monitor and improve stu- dent learning. Clarifies definitions of ‘‘incarcerated student’’ Students/Institutions/ Reflects current practice and sub-regulatory guidance and clarifies and ‘‘juvenile justice facilities’’. Federal Government. that individuals in certain correctional facilities may be eligible for Pell grants, but limits the use of Pell grants to appropriate instruc- tional expenses. Amends definition of ‘‘nonprofit institution’’ to Institutions ...... Redundant language removed; no impact anticipated. delete reference to 501(c)(3) tax status.
Reg Section 600.7—Conditions of Institutional Eligibility
Establishes that a student is not considered to Students/Institutions ... Impact minimal based on the small number of correspondence be ‘‘enrolled in correspondence courses’’ until courses operating in the country. Potential benefit to institutions at least 50 percent of the student’s classes and students is that enrollment in a single or small number of cor- are correspondence courses. respondence courses does not cause a student to be counted against the institution for eligibility purposes. Provides greater flexi- bilities for students who are managing multiple life demands or for whom travel to the campus is difficult or for whom technology ac- cess is limited, by allowing them to participate in a small number of correspondence courses without putting title IV participation for the institution at risk.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Reg Section 600.10—Date, Extent, Duration, and Consequences of Eligibility
Limits Secretary’s approval of direct assess- Students/Institutions/ Acknowledges that the Department’s role in approving direct assess- ment programs at the same academic levels Federal Government. ment programs is limited to ensuring the integrity of the title IV, to the first such program at an institution. HEA programs, and assumes that if an institution can disburse aid properly to students in one program at a given academic level, it is likely to be able to do so for additional programs. Ensures that an institution that creates a first new direct assessment program at a new academic level is reviewed by the Department to ensure ap- propriate administration of title IV funds. Encourages institutions that have demonstrated the ability to design and operate a direct assessment program to expand that model of instruction and en- ables institutions to respond more quickly to student and workforce needs. Reduces a potential barrier or reduces time required to es- tablish a direct assessment program. A consequence of eliminating the requirement that the Secretary approve each new direct as- sessment program at the same academic level is that it may lead to the rapid expansion a direct assessment programs without the guardrail of the Department’s review.
Reg Section 600.20—Notice and application procedures for establishing, reestablishing, maintaining, or expanding institutional eligibility and certification
Requires the Secretary to provide timely review Students/Institutions/ Benefits institutions and students by allowing faster development of of new program applications and enables in- Federal Government. new programs, especially those responsive to workforce develop- stitutions to start advertising programs early ment needs. Reflects role of accreditors in assessing program enough to enroll a full cohort of students. quality and Department’s intent to rely on accreditor’s assessment except in rare circumstances related to the Department’s statutory and regulatory requirements or specific requirements of the institu- tion’s PPA. Protects an institution from Department’s failure to act on an application for new program approval and reduces the likeli- hood that delays on the Department’s part will require an institution to navigate the State and accreditor approval process a second time.
Reg Section 600.21—Updating Application Information
Adds reporting requirements for (1) the addition Institutions/Federal With the elimination of the requirement for the Department to ap- of second and subsequent direct assessment Government. prove subsequent programs, this allows the Department to monitor programs at the same academic level. the growth and development of direct assessment programs. Also allows cross-checking with accreditors to be sure program or ar- rangement has approval.
Reg Section 600.52 and 600.54 (related to Foreign Institutions)
Amended to permit written arrangements with Students/Institutions/ Benefits students by allowing them to take Federal student loans to an eligible institution in the United States to Federal Government. enroll at certain foreign institutions but retain the ability to take a provide no more than 25 percent of a stu- limited number of courses in the U.S., such as during summer dent’s program. breaks. Also enables title IV-participating students enrolled at for- eign institutions to pursue qualifying internships or externships in the United States at entities other than eligible institutions. Benefits students by allowing them to find internships or externships in a variety of settings in which they may wish to pursue a career. Amended to permit written arrangements be- Students/Foreign Insti- Allows students at eligible foreign institutions to take courses at other tween a foreign institution and an ineligible tutions/Federal Gov- approved foreign institutions in that country, thus benefiting from entity for no more than 25 percent of a stu- ernment. the same opportunities as their international peers enrolled at for- dent’s program; provided that the ineligible eign schools. Broadens educational opportunities available to U.S. entity satisfies definition of ‘‘foreign institu- students at foreign institutions while maintaining reasonably equiv- tion’’. alent quality. However, while the regulations require the ineligible institution to meet the requirements of the foreign country in which it is located, these arrangements would not be overseen by a rec- ognized accrediting agency or the Department, outside of the regu- latory requirements, which may make it difficult to ensure aca- demic quality of the coursework offered by the ineligible foreign in- stitution.
Reg Section 668.2—Definitions
Eliminates definition of Academic Competitive- None ...... ACG program is no longer authorized by HEA. Removing definition ness Grant (ACG). has no impact on students or institutions.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Amends ‘‘full-time student’’ to define require- Students/Institutions/ Provides clarity for institutions regarding subscription-based models ments for subscription-based programs and Federal Government. and how they can be structured to permit students to receive title to prevent an institution offering such a pro- IV, HEA assistance. gram from including repeated courses for which a student has already received a pass- ing grade in a student’s enrollment status. Defines ‘‘subscription-based program’’ for title Students/Institutions/ Revision from NPRM expands use of subscription-based model to all IV disbursement purposes as standard or Federal Government. types of programs, not just direct assessment programs. Benefits non-standard term program for which an in- all parties by clarifying how title IV aid disbursements work for sub- stitution charges a student for a term with the scription-based programs. Provides flexibility for students to take expectation that the student completes a advantage of self-pacing inherent in this program model while lim- specified number of credit hours within the iting potential for abuse by requiring completion before subsequent term. Clarifies that no specific timeframe ap- disbursements of aid. Some protection for students with possibility plies for the terms and that students must of one single subscription period for catch-up work before loss of complete a cumulative number of credit title IV eligibility. Clarity provided by definition may increase the es- hours (or the equivalent) during or following tablishment of direct assessment programs or other programs that the term before receiving another disburse- could benefit from this approach, to the benefit of the institutions ment of title IV funds. that offer them, and as options for students, including the non-tra- ditional students that have taken advantage of existing CBE pro- grams. Provides an opportunity for students who fall behind in a subscription-based program to catch up and get back on track. A potential risk of expanding subscription-based model beyond direct assessment programs include the possibility that students in sub- scription-based programs will quickly accrue debt early in their pro- grams while falling behind in their coursework. Requires institutions to establish a single enroll- Students/Institutions/ Provides consistency for students regarding expectations for comple- ment status that applies to a student through- Federal Government. tion of coursework in a subscription-based program. Offers clarity out his or her enrollment in a subscription- to institutions regarding requirements for structuring such programs based program, with the student able to to ensure access to Federal aid. Improves program integrity by lim- change their enrollment status once in an iting options for students to avoid completion requirements through academic year. changes in enrollment status. Explains method for determining number of Students/Institutions/ Benefits institutions by clarifying how to match disbursements to credit hours (or the equivalent) that must be Federal Government. pace of each student’s progress. Benefits the Federal Government completed before subsequent disbursements by establishing a clear completion standard for students to meet of title IV aid. before they receive subsequent disbursements of Federal aid. Benefits students by allowing for an additional term to ‘‘catch-up’’ on coursework before losing title IV eligibility. Modifies definition of ‘‘third party servicer’’ to None ...... Reflects current practices and terminology. No impact anticipated on use ‘‘originating loans’’ instead of ‘‘certifying any party. loan applications’’.
Reg Section 668.3—Academic Year
Revises definition of ‘‘week of instructional Students/Institutions/ Benefits institutions by clarifying requirements for building instruc- time’’ as it pertains to an institution’s ‘‘aca- Federal Government. tional calendars in programs offered asynchronously through dis- demic year.’’ One part of the definition would tance education and may spur additional innovation given better cover traditional postsecondary programs and understanding of compliance thresholds. Benefits students and the remain unchanged and the other would cover Federal Government by ensuring that institutions make appropriate programs using asynchronous coursework instructional materials and support available during instructional through distance education or correspond- periods in exchange for Federal student aid. As noted by com- ence courses. For these courses, defines it menters, the interactions in asynchronous courses may not be pre- as a week in which the institution ‘‘makes dictable. available the instructional material, other re- sources, and instructor support necessary for academic engagement and completion of course objectives’’.
Reg Section 668.5—Written Arrangements to Provide Educational Programs
Clarifies that institutions using written arrange- Institutions/Faculty/Stu- Enables institutions to keep pace with changing needs of employers ments may align or modify their curriculum to dents/Accrediting and protects non-accredited providers from having their edu- meet requirements of industry advisory Agencies. cational programs or technologies manipulated by others. This is boards or other industry-recognized important since providers through written arrangements must prove credentialing bodies rather than going the efficacy of their programs, so outsiders should not be allowed through a mandatory, and typically lengthy, to modify or change the program in a way that could influence shared governance decision-making process. those results. Ensures that students are better prepared for entry to the workforce in certain occupations. Could create tension with faculty and reduce their influence over certain aspects of the cur- riculum but could require proper oversight by partnering institutions and accreditors to reduce risk of harm to students.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Clarifies calculation of percentage of program Students/Institutions/ Ensures that degree-granting institutions retain academic control of a that could be provided by an ineligible institu- Accreditors/Ineligible program and maintain the responsibility for delivering at least half tion. Entities involved in of an academic program. Setting out a clear methodology makes Written Arrange- clear when and how written arrangements may be used but en- ments. sures that colleges and universities are not simply outsourcing in- structional responsibilities to non-accredited providers. Benefits in- stitutions by improving speed with which accrediting agencies re- view and approve such arrangements. While the accrediting agen- cy can deny the request for a written arrangement, increasing the speed for review and expanding the options for staff that can re- view these arrangements could make for a less robust or rigorous review. Benefits students and institutions by allowing institutions to engage other providers, such as unions and apprenticeship pro- viders, who may have specialized facilities and uniquely trained employees who can serve as teachers and mentors. Benefits insti- tutions by allowing them to offer educational opportunities or tech- nologies that are developed by outside providers who may be bet- ter situated to invest in new technologies due to their opportunities to deliver them to a larger population of students than are typically at a single institution. Clarifies that written arrangements are not nec- Institutions/Students ... Offers clarity for institutions to ensure that use of written arrange- essary for certain other interactions with out- ments does not result in fewer credits being accepted through side entities. Specifically, the limitations in transfer or awarded through prior learning assessment. Benefits § 668.5 do not apply to the transfer of credits, students by reducing costs and time to completion for those who use of prior learning assessment or other bring pre-existing knowledge and skills to the classroom. non-traditional methods of providing aca- demic credit, or the internship or externship portion of a program. Removes 50 percent limitation on written ar- Institutions ...... Allows greater opportunities for institutions to share administrative or rangements between two or more eligible in- instructional resources when under shared ownership. stitutions under joint ownership. Ineligible entities would not, as was proposed in Institutions ...... Allows institutions to use third parties to deliver portions of programs, the NPRM, have to demonstrate experience to integrate advanced technologies, enable student access to spe- in delivery and assessment of the program or cialized facilities and experts, expand the number of learning op- portion the ineligible entity delivers and that tions available to students and potentially increase the number of the programs have been successful in meet- students an institution can responsibly serve. While written ar- ing stated learning objectives. rangements may reduce the cost of delivering certain kinds of in- struction, constructing specialized facilities, or developing new technologies, the written arrangement will have associated costs that could reduce revenue. Students could have access to newer technologies or higher quality instruction than could be provided by the institution. In the final regulations, ineligible entities will not be required to demonstrate prior experience and success in meeting learning objectives for portions of programs they deliver. However, there are potential risks inherent in contracting with an ineligible entity that lacks demonstrable experience. The outside provider could be of lower quality, have less of a vested interest in the stu- dent’s success, or lack the necessary resources to provide the educational services agreed upon in the written arrangement.
Reg Section 668.8—Eligible Programs
Eliminates consideration of ‘‘out-of-class’’ hours Institutions ...... Aligns the Department’s requirements with those of most licensing for purposes of performing clock-to-credit boards and simplifies the conversion process. Enables students to conversions for non-degree programs that meet licensure requirements in programs that are title IV eligible are subject to those requirements. and helps institutions by allowing them to comply with the reason- able length requirements while also allowing credit hour to clock hour conversions. May result in additional title IV funds expendi- tures for programs currently lacking any out-of-class components.
Reg Section 668.10—Direct Assessment Programs
Revises definition of ‘‘direct assessment’’ and Institutions ...... Simplifies and clarifies requirements related to direct assessment eliminates separate definitions of key terms programs. for direct assessment programs, referring in- stead to requirements elsewhere in regula- tions.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Eliminates certain prohibitions on types of Students/Institutions/ Allows institutions to provide students with more options so that coursework that can be offered through direct Federal Government. learners can select the learning modality that best meets their assessment, including remedial coursework, needs. Allows students to take some traditional courses even if and enables ‘‘hybrid’’ programs to provide some of their other courses are direct assessment courses. Rec- students options to take some direct assess- ognizes that co-remediation is a promising practice, and direct as- ment courses and some traditional or dis- sessment classes may increase the number of students who can tance learning courses. participate in co-remediation programs while taking other classes. Codifies current policy by adding prohibition on Students/Institutions/ Benefits students and taxpayers by discouraging institutions from paying title IV, HEA funds for credit earned Federal Government. charging excessive fees for conducting prior learning assessment solely through prior learning assessment. and ensures that taxpayer dollars are not being used to pay institu- tions for instruction that they are not providing.
Reg Section 668.13—Certification Procedures
Automatic renewal of an institution’s certifi- Institutions ...... Benefits institutions by setting a time limit for the uncertainty of cation if the Secretary does not make a deci- month-to-month eligibility. With the option of provisional recertifi- sion on an application for recertification sub- cation, the Department retains sufficient control over recertification mitted no later than 90 calendar days before process but cannot use certification delays to prevent institutions its PPA expires within 12 months. from starting new programs or making other necessary changes.
Reg Section 668.14—Program Participation Agreement
Clarifies requirements related to making data Institutions ...... Benefits institutions by reducing the amount of information that must available to prospective students about the be disclosed to students to enable institutions to include graduation most recent employment statistics, gradua- rates or employment statistics in their marketing materials. Benefits tion statistics, or other information to substan- students by improving the accuracy and truthfulness of published tiate the truthfulness of its advertising that outcomes data, and by making an appropriate amount of informa- uses job placement rates to attract students. tion available to students without overwhelming them with extra- neous data. Maintains the requirement for institutions to make available any information needed to substantiate the truthfulness of the institution’s advertisements about job placement or graduation rates. Eliminates requirements to provide the source ...... Considered redundant to requirement to provide data and other infor- of such statistics, associated timeframes, and mation to substantiate truth in the institution’s advertising. methodology. Aligns program length to occupational require- Students/institutions .... Allows institutions to create programs that meet professional licen- ments. Limits program length to 150 percent sure requirements in multiple States, thus expanding the potential of minimum program length for the State in pool of students served and the number of job opportunities avail- which the institution is located or 100 percent able to graduates. Students benefit by increased occupational mo- of the minimum program hours for licensure bility and, in some cases, being able to go to school in a lower in an adjoining State. cost State but work upon graduation in a different State where wages are higher. Conversely, if an institution increases program length, a student may have to pay more to meet requirements of a State in which the student does not plan to work. Requires updates to teach-out plans after spec- Students/Institutions/ Allows accrediting agencies to gather more information from institu- ified negative events. Accrediting Agencies. tions that will be helpful to triad partners in assisting students find transfer and teach-out opportunities, and retain access to their academic records, when a school closure occurs. Requires institu- tions to update teach-out plans in instances where risk of closure increases.
Reg Section 668.22—Treatment of Title IV Funds When a Student Withdraws
Adds several exceptions to determination a stu- Students/Institutions ... Benefits institutions by not requiring them to return title IV funds sim- dent has withdrawn, including early comple- ply because a student is a faster learner. Benefits students by al- tion of requirements for graduation, comple- lowing them to complete courses at a quicker pace and still retain tion of module(s) containing 49 percent or full title IV eligibility. Could improve completion rates and reduce more of the days in the payment period, or time to completion if students are not required to participate in completion of coursework equal to or greater busy work if they finish the legitimate work required by the course than the institution’s requirements for a half- more quickly than other students. time student. Applies 45-day time limit on delaying with- Students/Institutions ... Improves consistency of regulations as they apply to programs with drawal for students who cease attendance to different types of academic calendars and addresses concerns standard term programs. Eliminates ref- about long periods of non-attendance by students. Ensures that in- erences to modules for nonterm programs stitutions perform return of title IV calculations when students and revises timeframes for allowing students cease attendance for long periods of time without beginning an ap- to provide written confirmation of intent to re- proved leave of absence. turn without beginning an approved leave of absence.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Clarifies requirements for determining the num- Institutions/Federal Simplifies and clarifies requirements for establishing the denominator ber of days in the payment period or period Government. of the return of title IV funds calculation when a student is enrolled of enrollment for a student who is enrolled in in a program that uses modules. May result in a greater amount of a program offered using modules. Requires title IV funds being returned for a limited number of students who an institution to include all the days in mod- enroll in numerous modules during a payment period or period of ules that included coursework used to deter- enrollment but fail to attend those modules. mine the student’s eligibility for title IV, HEA assistance. Eliminates references to programs under which ...... No impact anticipated for technical changes incorporating current pol- financial aid is no longer disbursed. Adds icy. Iraq and Afghanistan Service Grants to types of aid subject to the return of title IV funds calculation and clarifies order for application of returned funds.
Reg Section 668.28—Non-Title IV Revenue (90/10)
Removes references to net present value when ...... No impact anticipated for technical changes. including institutional loans in the 90/10 cal- culation.
Reg Section 668.34—Satisfactory Academic Progress
Eliminates pace requirements for satisfactory Students/Institutions/ Reduces burden on institutions for making pace-based title IV cal- academic progress for subscription-based Federal Government. culations for students in subscription-based programs. Improves programs. flexibility for students by allowing them to determine the pace of their learning without certain limits. Allows maximum timeframe for undergraduate Students/Institutions/ Increases flexibility for institutions and students and provides new op- programs measured in credit hours to be ex- Federal Government. tions for monitoring student progress when traditional semester- pressed in calendar time in addition to cur- based time constraints conflict with a student’s work or life respon- rent credit hour measurement. Limited to 150 sibilities. However, sets outer limit for use of aid to ensure that stu- percent of published length of program. dents are progressing through their program and using Federal student aid funds efficiently.
Reg Section 668.111—Scope and Purpose and 668.113—Request for Review
Indicates that, for final audit or program review Institutions/Federal Conforms with changes to definitions of ‘‘distance education’’ and determinations related to classification of a Government. ‘‘credit hour’’ and provides regulatory clarity that accreditors are program as distance education or the assign- the triad member given the responsibility of monitoring program ment of credit hours, the Secretary will rely quality and establishing standards for academic quality, faculty cre- on institution’s accrediting agency or State dentials, and effective distance learning. agency requirements.
Reg Section 668.164—Disbursing Funds
Establishes disbursement requirements specific Students/Institutions/ Conforming change with disbursement pattern for subscription-based to subscription-based programs. Sets the Federal Government. programs in § 668.2 to enforce requirement that no disbursements later of 10 days before the first day of class- be made until the student has completed the appropriate credit es in the payment period or the date the stu- hours. dent completed the cumulative number of credit hours associated with student’s enroll- ment status in all prior terms attended.
Reg Section 668.171—General
Allows the Secretary to determine an institution Institutions/Federal Codifies current practice; no impact expected. is not financially responsible if the institution Government. does not submit its financial and compliance audits by the date permitted and manner re- quired under § 668.23.
Reg Section 668.174—Past Performance
Adds the term ‘‘entity’’ or ‘‘entities’’ to various Institutions/Federal Allows the Department to consider more ownership structures when provisions as ownership may be vested in an Government. evaluating past performance. entity or an individual.
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TABLE 3—SUMMARY OF KEY CHANGES—Continued
Change Affected parties Impacts
Clarifies that institution is not financially respon- Institutions/Federal Allows the Department to consider whether a person or entity affili- sible if a person who exercises substantial Government. ated with an institution has overseen the precipitous closure of an- ownership or control over the institution also other institution with the goal of preventing an institution from being exercised substantial ownership or control substantially owned or controlled by persons or entities that would over another institution that closed without a cause the institution to be financially irresponsible and close with- viable teach-out plan or agreement approved out providing to students a plan to finish their education in place or by the institution’s accrediting agency and at another institution. faithfully executed by the institution.
Reg Section 668.175—Alternative Standards and Requirements
Eliminates reference to fax transmission ...... None ...... Change to recognize technological advancements. No impact.
A key change that would result from based programs available to students, group represents a sizeable potential this regulation is greater certainty and even fewer direct assessment market for expansion of competency- among institutions about how to programs. Yet these types of programs based or other distance education implement innovative programs without may be very appealing to adult learners programs. Additionally, students running afoul of title IV disbursement who bring considerable knowledge and outside that age range and those with a requirements. Institutions are not skills to their programs. Expansion of degree may want to pursue competency- inherently opposed to regulations, but subscription-based programs provides based graduate certificates or degrees to instead crave information that will students with the scheduling flexibility enhance their careers. While a variety of enable them to be sure they are they may need if managing factors may explain individual complying with regulations that are responsibilities from school, work, and education attainment, to the extent that otherwise difficult to interpret. The new family. A clearer framework for traditional programs were not suitable definitions ensure a shared administering title IV aid to students understanding of the various kinds of enrolled in competency-based programs for some students’ academic and programs an institution can provide and on a subscription basis may increase employment goals, competency-based the rules for disbursing title IV aid to institutions’ willingness to develop new programs may provide an appealing students enrolled in those programs. programs. To the extent that institutions option. However, evaluating the quality Greater clarity in our regulations will determine that this funding model fits of new programs may be challenging, reduce the likelihood that student and other types of programs, the expansion and it could be difficult to determine taxpayer dollars will be wasted or that of this disbursement model beyond how much a student should learn to be institutions will face undeserved direct assessment programs in these awarded a certain amount of credit, as negative program review findings and final regulations increases the flexibility opposed to more traditional delivery financial liabilities that could have and options for students. Students will models that award aid and mark devastating consequences to the have to evaluate if programs using this progress by the number of hours during institution and its students. model meet their schedule and which a student is scheduled to be in Significant changes in the final educational objectives. class (many institutions do not take regulation from the proposed The regulations eliminate the attendance, and therefore do not regulations include: (1) The expansion financial penalties that students and monitor how much time an individual of the subscription-based disbursement institutions would otherwise face when student actually is in class). As with all model to all programs, not just direct a student progresses quickly through a programs, students would need to assessment; (2) modification of the clock course and completes it early. Students, carefully consider if specific hour definition to include clock hours especially non-traditional students, in which instruction occurs could benefit from the flexible pacing competency-based or distance education asynchronously; (3) clarification that and different model for assessing programs are appropriate for their internships and externships of students progress offered by this type of program. objectives and learning. Distance at foreign institutions can be completed The emphasis on flexibility, workforce learning, subscription-based programs, at entities in the United States that are development, and innovative and other self-paced options require a not eligible institutions; (4) elimination educational approaches could be higher degree of academic discipline on of the prior experience requirement for beneficial to students and the national the part of students, which may pose ineligible entities involved in a written economy. challenges to students who are already agreement; and (5) withdrawal of the According to U.S. Census data,42 for burdened by work and family proposed provisions regarding change of the civilian non-institutionalized responsibilities.43 For those who are so ownership in § 668.15. population, there were approximately motivated, they could complete their 44 million adults between the ages of 25 Students program more quickly. For those who and 49 with high school or some college struggle to stay engaged, innovative Students will benefit from the as their highest educational level in learning models emphasizing coach or expanded program options available 2018. Even a small percentage of that mentor support may improve retention when institutions understand the and completion in online programs ground rules for offering new kinds of 42 U.S. Census Bureau, Table 1. Educational programs and when they do not fear Attainment of the Population 18 Years and Over, by Age, Sex, Race, and Hispanic Origin: 2018. 43 California Community College Chancellor’s surprises at a program review. Despite Available at www.census.gov/data/tables/2018/ Office, 2017 Distance Education Report, 2017, being permitted by the HEA for decades, demo/education-attainment/cps-detailed- http://californiacommunitycolleges.cccco.edu/ there are relatively few competency- tables.html. Last accessed November 29, 2019. Portals/0/Reports/2017-DE-Report-Final-ADA.pdf.
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where students with poor self-directed institution and pricing policies may meetings or lectures. Students can learning skills might otherwise fail.44 45 have been updated since the time of this access lectures and other class activities Another potential benefit for students analysis, but that idea that subscription as their schedules permit, spending as in competency-based programs could be pricing may result in cost savings for much time as is necessary to master a reduced costs to obtain a postsecondary students depending upon the speed of particular task or concept. New credential. Western Governors their progress is still valid.49 technologies permit lectures to be University (WGU), for example, is While more difficult to quantify, the combined with videos and other known for its success in adopting this Department also expects students would resources enabling students to pause at instructional approach, although it still find benefits in programs they can any point to reinforce mastery of subject disburses aid using a time-based model. complete more quickly in terms of matter. Moreover, the availability of In its 2018 annual report, WGU states reduced opportunity costs, which asynchronous learning allows for mixed that the average time to a bachelor’s include wages lost when the student is model learning reflective of non-title IV degree completion among its students is in school rather than in the job for eligible programming with theory 2.5 years, which could generate which the student is preparing. Also, learned asynchronously and specific substantial savings to students and since student retention declines as time practical tasks through synchronous taxpayers. An analysis done by Robert to degree completion expands, programs instruction. Kelchen 46 based on 14 cost structures at that enable students to finish more Adjustments made for COVID–19 13 institutions for credits earned quickly are likely to increase credential conditions have demonstrated to through portfolio or prior learning completion. institutions, accrediting agencies, and assessment found that significant Of course, it could be the unique licensing agencies that at least some savings could be generated, but they attributes of WGU, or the students parts of certain clock-hour programs can vary substantially among colleges. attracted to the institution, that be delivered effectively through Potential savings for 3 credits varied contribute to these results, and it is not asynchronous coursework. While this from $127 to $1,270.47 The fee structure, yet known if the results would be will need to be monitored on an ongoing amount of credits allowed to be replicated by other institutions that basis, this development will benefit obtained through these methods, the adopt the WGU model. A number of students involved in these programs. availability of Federal aid, and the factors, including a given student’s The Department provides additional ability of students to pass those anticipated pace of learning, likelihood detail related to burden estimates in the assessments with limited attempts all of completion, desired employment Paperwork Reduction Act section of this contribute to determining whether a outcomes, personal motivation, and the final rule and none of the burden is competency-based approach would range of options available to them will assigned to students in that analysis. generate savings for a given student. The influence the return the student enjoys Institutions other pricing model, one that is on their educational investment. Institutions should benefit from the supported by the regulations, is Students will also benefit from the regulatory clarifications, especially subscription based pricing in which the changes to the definition of a week of those institutions that seek to expand potential savings relate to the number of instruction. Under the regulations, credits a student completes during a competency-based and direct institutions would be less likely to assessment learning options but are subscription period and student’s assign less substantive work to students eligibility for financial aid in their uncertain as to the Department’s (such as posting a blog or responding to requirements for disbursing aid to specific program. Kelchen calculates the a chat) simply to meet title IV number of credits needed in a students enrolled in those programs. A requirements. Where these activities are significant barrier to entry for subscription period for students who substantive, they will likely continue to receive a full Pell Grant and non-aided institutions seeking to provide direct take place, but in many instances, these assessment programs is a lack of clarity students to break even with traditional activities have been integrated into pricing models at 5 institutions that regarding what the Department expects courses simply to provide evidence of of these programs in order to approve offer a subscription pricing option. ‘‘regular and substantive’’ interaction. These range from 6 credits for a non- them, and the slowness with which the Students who may otherwise be Department has made decisions on aided student to 27 credits for a student successful in distance learning can in a bachelor’s degree program who applications submitted by institutions. become frustrated if they are not Only six institutions, as of 2020, have receives a full Pell Grant.48 The allowed to move at their own pace been approved by the Department to subscription periods and prices vary by because of requirements to post blogs, offer direct assessment programs. This participate in chats, or answer questions indicates that there could be a lack of 44 www.texaspolicy.com/new-study-less- that do not actually enhance learning. expensive-competency-based-education-programs- interest in offering direct assessment just-as-good-as-traditional-programs/. The inclusion of asynchronous programs, or institutions are hesitant to 45 Xu, D. and Xu, Y. March 2019. The Promises coursework that provides for direct invest in their development because and Limits of Online Higher Education: interaction between students and approval requirements are too Understanding How Distance Education Affects instructors in the definition of clock- burdensome or uncertainties too great Access, Cost, and Quality. American Enterprise hours could expand the options for Institute. about what the Department and 46 Robert Kelchen, The Landscape of students in such programs. accreditors require. The regulations will Competency-Based Education—Enrollments, Asynchronous coursework has the reduce burden and provide clarity to Demographics, and Affordability, January 2015. advantage of being able to facilitate an encourage more institutions to Center for Higher Education Reform, American individualized learning experience for Enterprise Institute AEI Series on Competency- experiment with direct assessment Based Higher Education. Available at www.aei.org/ each student in a way that cannot be programs. Under the rule, the wp-content/uploads/2015/04/Competency-based- accomplished through scheduled Department is required to approve the education-landscape-Kelchen-2015.pdf. first direct assessment program offered 47 Id, p. 11, Table 4 Cost Structures of Portfolio 49 Western Governors University, WGU 2018 and Prior Learning Assessment Programs. Annual Report, p. 17. Available at www.wgu.edu/ by an institution at a given credential 48 Id, p.14. Table 5 Costs of Subscription-Based content/dam/western-governors/documents/ level, but after that, only the accreditor CBE Programs Compared to Other Online Providers. annual-report/annual-report-2018.pdf. would be required to review the
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program to ensure academic quality. instructors and students in the requirements of licensing boards by Some institutions may aggressively seek definition of clock hour in these final calculating clock-hour equivalencies. approval for more direct assessment regulations could expand institutions’ Institutions will also benefit from the programs, while others may take a wait- program offerings. In turn, this could options allowed in these final and-see attitude until other institutions increase the number of individuals regulations with respect to have forged new ground. qualified for State licensure or asynchronous coursework in clock-hour In the short term, it is likely that certification, and thus gainful programs and the expansion of institutions already approved to offer at employment, in licensed occupations. subscription-based disbursement least one direct assessment program will There are very few clock-hour programs beyond direct assessment programs. expand offerings since their experience that use distance learning to provide Institutions considering asynchronous well positions them to do so. According portions of the program since there are coursework would have to invest in to the Department’s data, there are only few State or professional licensing systems to monitor active engagement, six institutions that have established boards that permit distance learning for but several such technologies are direct assessment programs. Although clock-hour programs. However, for available. Expanding subscription-based these institutions may expand the clock-hour programs permitted to disbursement could lead to economies number of direct assessment programs incorporate distance learning, it is of scale that make it worthwhile for available, the Department anticipates possible that more students will be institutions to develop such that these programs would mostly served or that more students will persist subscription-based pricing plans. These attract students away from more to completion. changes from the NPRM give traditional distance learning programs, institutions additional options in but may not add significantly to the The regulations more clearly define designing their programs. This could total number of students enrolled in what constitutes a reasonable length for also result in additional competition postsecondary education. Students clock-hour programs and allow from expanded course offerings at other looking for a flexible postsecondary institutions to meet the licensure institutions. program can find many advantages requirements of surrounding States, As discussed further in the Paperwork through distance education already but thus enabling greater student and Reduction Act of 1995 section of this may gravitate to direct assessment workforce mobility. There are only a preamble, the regulations are expected programs because of added advantages, few States that have licensure to result in a net reduction in burden for including in pacing and format. The requirements that are significantly institutions. In estimating costs and Department’s assumptions about longer than other States, but if programs savings associated with these changes in potential student growth related to the in surrounding States increase their burden, we assume that these activities regulations are described in the Net clock hours to meet those requirements, are conducted by postsecondary Budget Impact section of this analysis. there could be small increases in cost administrators, which earn an average However, over time, additional and utilization of title IV, HEA wage of $53.47.52 Throughout, to institutions may develop new direct assistance. On the other hand, if estimate the total costs and savings assessment programs, especially if early programs can be structured to ensure associated with these changes, we adopters create demand among students that students can work if they cross multiply wage rates by two to account for this new form of education. The State lines, there could be cost savings for overhead and benefits. The Department projects that if new since, under the status quo, a student elimination of the Net Present Value institutions engage in direct assessment, who moves from one State to another calculation related to the 90/10 rule is and those already approved to offer may be required to start their program estimated to save ¥2,808 hours, which direct assessment programs launch new over in order to meet the clock-hour would generate cost savings of programs, there could be shifting of requirements since shorter-term approximately $300,000 annually. The students from other programs to self- ‘‘completer programs’’ are not typically regulations also impose burden related paced direct assessment programs. It is approved by those States. Therefore, to reporting subsequent direct also possible that students not this regulation could reduce the cost of assessment programs estimated to interested in current pedagogical education for students who move from impose 18 hours of burden annually for models will find direct assessment one State to the next and could increase a cost of $1,926 using the same hourly programs to be attractive and will worker mobility in fields that employ rate of $53.47 multiplied by two for decide to enroll in a postsecondary large numbers of workers, such as overhead and benefits for a rate of program. This could increase the cosmetology and massage therapy.50 51 $106.94. Together, the estimated net number of students who would qualify Institutions will also benefit from reduction in burden for institutions is for Pell Grants or take Federal Direct simplifications to the formula for clock- ¥2,790 hours and $¥298,363. Loans. While increased interest in direct to-credit hour conversions. The Accrediting Agencies assessment could result in higher title regulations would eliminate the need IV participation, it is possible that for institutions to consider the number The regulations recognize the primary students enrolled in direct assessment of homework hours associated with role that accrediting agencies play in programs would finish their programs each credit hour in programs that are evaluating the quality of new programs more quickly, therefore reducing the subject to the conversion. This change and approving institutions to offer them. amount of financial aid a student uses reduce administrative burden while Although the Department’s review of to complete his or her program. allowing institutions to offer programs direct assessment programs focuses on Changes to the limitations on the in credit hours that are more likely to an institution’s technical ability to ability of clock hour programs to offer transfer to other schools than clock calculate and disburse title IV aid to didactic instruction through distance hours, but still meet the clock-hour students enrolled in these programs, learning may enable more individuals to accreditors have always had—and will enroll in these programs. The inclusion continue to have—the responsibility of 50 www.bls.gov/ooh/personal-care-and-service/ of asynchronous coursework with barbers-hairstylists-and-cosmetologists.htm. ensuring that these programs are sufficient monitoring of participation 51 www.bls.gov/ooh/healthcare/massage- and direct interaction between therapists.htm. 52 www.bls.gov/oes/current/oes119033.htm.
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rigorous and of high quality. In the Secretary’s approval of direct we note that its three-year cohort default conjunction with the recently published assessment programs at the same rates of 4.6 percent for 2014, 4.1 percent Accreditation and State Authorization academic level to the first such program for 2015, and 4.2 percent for 2016 53 are Regulations, one or more existing or at an institution, both provisions below the national average of 10.1 new accrediting agencies may step designed to support the expansion of percent overall in 2016 (6.6 percent for forward to become a leader in the field innovative educational programs. private, 9.6 percent for public, and 15.2 for assessing and approving direct percent for proprietary institutions).54 Net Budget Impact assessment programs, which could lead Comparatively, Capella University, to more rapid expansion of direct We estimate that these regulations another leader in competency-based assessment programs. Accrediting will have a net Federal budget impact education, had a cohort default rate of agencies will continue to play an for Federal student loan cohorts 6.5 percent in 2015 and 6.8 percent in important role in approving written between 2020–2029, of $[¥54] million 2016.55 Factors that could lead to lower arrangements covering between 25 and in outlays in the primary estimate defaults among institutions employing 50 percent of a program; however, scenario and an increase in Pell Grant innovative learning models—and in changes already published in the outlays of $1,163 million over 10 years, particular when those models are used accreditation regulations to allow these for a total net impact of $1,109 million. to provide graduate education—may be approvals to take place at the staff level, A cohort reflects all loans originated in that they would attract older students and requirements for accrediting a given fiscal year. Consistent with the who are employed and are seeking agencies to approve or deny them requirements of the Credit Reform Act specific credentials for advancement or within 90 days, could encourage more of 1990, budget cost estimates for the a career change. These individuals may institutions to consider entering into student loan programs reflect the be more likely to have resources written arrangements. estimated net present value of all future (including those provided by current Accrediting agencies play an non-administrative Federal costs employers) to reduce the need to borrow important role in evaluating the quality associated with a cohort of loans. The and to repay any loans they need to of academic programs, including Net Budget Impact is compared to a take. On the other hand, the non- distance education programs, and will modified version of the 2020 President’s traditional students that may be the continue to play that role. These Budget baseline (PB2021) that adjusts primary market for competency-based regulations do not create new for the publication of the final Borrower learning or direct assessment may have responsibilities in this regard; however, Defense, Gainful Employment, and employment and family obligations that until accrediting agencies have more Accreditation and State Authorization could make them less likely to complete experience in reviewing and approving rules. their programs, potentially increasing competency-based and direct The Department emphasizes that its their default risk. assessment programs, the approval estimates of transformations in higher An additional complicating factor in process could be somewhat more education delivery that could occur as developing these estimates are the burdensome. Some agencies may also a result of these regulations are related regulatory changes on which the need to develop new standards to uncertain. Similarly, the Department is committee reached consensus in this facilitate the evaluation of these constrained in its budget estimates by negotiated rulemaking that we programs, but many already have such the limited data available to it. We addressed in separate notices of standards in place. If growth in estimate how institutions and students rulemaking. The budget impacts competency-based programs is more would respond to the regulatory estimated here are in addition to the significant than anticipated, there could changes, and we present alternative potential increases attributed to the be an increase in accrediting agency scenarios to capture the potential range accreditation changes promulgated in workload, but it is possible that demand of impacts on Federal student aid the final rule published November 1, for approval of traditional programs transfers. Similarly, we do not attempt 2019 that are reflected in the PB 2021 would decline as interest shifts to to estimate effects based on evidence baseline.56 competency-based or direct assessment cited in this preamble that students The main budget impacts estimated programs. enrolled in similar programs have from these final regulations come from The Department provides additional persisted longer, completed at higher changes in loan volumes and Pell Grants detail related to burden estimates in the rates, and finished in a shorter period of disbursed to students if these new Paperwork Reduction Act section of this time with less debt. While increased delivery models were to attract an final rule and does not estimate any enrollment and persistence could result increased number of students who additional burden to accrediting in increased transfers to students in the receive title IV, HEA funds. The agencies from the regulations. form of Federal student aid grants and Department believes that much of the loans, it could also produce graduates Federal Government growth in this area will come from better prepared to succeed in the future students that shift from more In the regulations, the Federal workplace and encourage robust traditional ground-based or distance Government is reducing some of the economic growth. The Administration’s complexity of administering Federal emphasis on workforce development 53 U.S. Department of Education, Official Cohort student aid and calculating return-to- may encourage more institutions to Default Rates for Schools, PEPS300.xls available at title IV obligations. These regulations implement competency-based www2.ed.gov/offices/OSFAP/defaultmanagement/ also reaffirm that it is accreditors—and educational programs, which could cdr.html. 54 U.S. Department of Education, Comparison of not the Department—who are improve employment outcomes and FY 2016 Official National Cohort Default Rates to authorized by the HEA to establish and loan repayment performance. Prior Two Official Cohort Default Rates available at evaluate compliance with education There is anecdotal evidence that www2.ed.gov/offices/OSFAP/defaultmanagement/ quality standards, including when competency-based education programs schooltyperates.pdf. Accessed February 21, 2020. innovative delivery models challenge may have strong loan repayment 55 U.S. Department of Education, Official Cohort Default Rates for Schools, PEPS300.xls available at the status quo. The regulations require performance. Looking again to WGU, an www2.ed.gov/offices/OSFAP/defaultmanagement/ the Secretary to provide a timely review institution that has been an early cdr.html. of new program applications and limit adopter of competency-based learning, 56 84 FR 58834.
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learning programs to those offered using subscription-based programs, provisions distance learning, nor did we attribute competency-based learning or direct in these regulations that would to the regulation the possibility that assessment methods. In developing the encourage innovation, the growth of some students may prefer that distance primary estimate, the Department does workforce development programs, and programs or alternative types of not estimate the types of programs and the new methods of delivery may programs like CBE after their experience institutions students who choose particularly appeal to non-traditional during the COVID–19 shutdown. competency-based education may come students. Tables 4.A to 4.E illustrate the Additionally, any COVID–19 related from or the potential cost differential changes in title IV grant and loan economic downturn will be reflected in between those programs, as further volume developed for use in estimating future baseline updates, with the discussed after Table 5. Instead, we the net budget impact of these potential increase in enrollment and assume that the growth associated with regulations for the primary scenario, related financial aid as a reaction to programs that are developed or with discussion about underlying economic conditions and not driven by expanded in part because the assumptions following the tables. the changes in these final regulations. In order to have a common basis for regulations make it easier to administer However, we did recognize that title IV aid to such programs comes from the Pell Grant and loan assumptions and institutions’ experience in shifting students who would not otherwise have to facilitate comment, we started the programs to distance platforms may borrowed to attend a different type of estimate with an assumption about the encourage them to accelerate the program and apply an average level of number of additional programs that borrowing to each estimated enrollee. would be established because of the development of distance of CBE The Department believes that many of combined effect of the regulations. As programs. Students may also decide that the students who enroll in CBE will do noted in response to the comment about distance learning is a good approach for so as a substitute for a different type of the RIA in the NPRM, the expansion of them and consider it for furthering their program for which they likely would distance education in response to education or for future programs. This is receive some form of title IV aid, but COVID–19 disruptions is not a response reflected in an increase in programs in there will be some small increase in to these regulations, and the extent to Table 4.A to 968 compared to 864 in the enrollment from students who either not which the transformation will persist is NPRM, leading to an estimated 60,379 have pursued postsecondary education unknown. Instead, the response to additional Pell Grant recipients. On the or who would not have received title IV COVID–19 has provided evidence that other hand, because the rapid shift to aid for their program. Additionally, the additional flexibilities are necessary and distance may provide students with sub- alternate budget scenarios consider the appropriate to enable institutions to optimal experiences, there could also be possibility that the implementation of adapt to the changing needs of students a negative backlash in which students new pedagogical and delivery models and society. will resist engaging in distance learning could result in more or fewer new We did not increase the estimated if their experience during the COVID–19 students being interested in pursuing a number of students to reflect the current necessitated transition was less than postsecondary credential. Expansion of shift of campus-based students to satisfactory.
TABLE 4.A—ASSUMPTIONS ABOUT CUMULATIVE NUMBER OF ADDITIONAL PROGRAMS BY SIZE OF PROGRAM
Size of program 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
25 ...... 24 72 95 150 225 275 325 375 420 450 75 ...... 12 20 40 60 90 110 135 150 175 200 150 ...... 10 18 26 40 68 75 90 113 120 128 350 ...... 8 15 25 30 38 50 60 70 80 90 750 ...... 3 8 14 20 30 38 48 56 65 70 1500 ...... 1 4 7 10 14 18 20 25 28 30
As seen in Table 4.A, we expect the acknowledge that the results of that limited due to the high cost of current trends of distance education survey may be biased in that we expect constructing facilities, procuring programs capturing an increasing share the small proportion of institutions equipment and hiring faculty qualified of students to continue, and perhaps to interested in starting CBE or direct to teach in those programs.58 As more accelerate as institutions and accreditors assessment programs were more likely hospitals and health care facilities become more experienced in to respond. Nonetheless, these are the require nurses to have bachelor’s establishing or evaluating these best data available to us, and we degrees, we expect to see continued programs. We also expect more projected the results of that survey onto growth of RN to BSN programs, which institutions to engage in competency- the postsecondary system as a whole. can be delivered using CBE or direct based learning and direct assessment, We assumed, based on the 2018 and assessment because students in these which may or may not be delivered 2019 survey data, that the majority of programs are typically required to be online. The initial distribution of programs will be small, but assumed working in the field, thus negating the that over time larger programs would programs by enrollment size uses need for the institution to provide evolve. information from the 2018 AIR survey clinical placements. and the 2019 survey; 57 however, we In addition, as institutions become more comfortable with using written 58 Shulock, N., Lewis, J., & Tan, C. (2013). 57 American Institutes for Research, State of the agreements to access facilities and Workforce Investments: State Strategies to Preserve Field—Findings from the 2019 National Survey of experts that private sector organizations Postsecondary Competency-Based Education, Higher-Cost Career Education Programs in available at www.air.org/sites/default/files/ and unions make available, there could Community and Technical Colleges. California National-Survey-of-Postsecondary-CBE-Lumina- be growth in career and technical State University: Sacramento. Institute for Higher October-2019-rev.pdf. education programs that are currently Education Leadership & Policy.
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Other factors that support the increase level could also accelerate the process of the 588 programs described in the 2019 in programs are recent regulatory establishing programs. survey, 16 percent were graduate developments with respect to We then had to develop an programs. However, competency-based accreditation and no requirement for assumption for how many of the programs could be a good fit for working approval of new delivery methods as a additional programs would be adults wanting a self-paced program to substantive change. The provisions undergraduate or graduate programs for earn a graduate credential, so we requiring the Secretary to provide a the purposes of determining how many assumed that that the distribution of timely review of new program would potentially serve Pell recipients undergraduate versus graduate programs applications and to limit the Secretary’s and subsidized loan borrowers. Of the would change over time, especially 512 programs described in the 2018 review to the first competency-based among smaller programs, as shown in survey, approximately 17 percent were education program at a given academic Table 4.B. identified as graduate programs and of
TABLE 4.B—UNDERGRADUATE SHARE OF CUMULATIVE ADDITIONAL PROGRAMS
2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 Size of program (%) (%) (%) (%) (%) (%) (%) (%) (%) (%)
25 ...... 83 78 70 65 60 55 50 50 45 45 75 ...... 83 78 70 65 60 60 60 60 60 60 150 ...... 83 78 70 65 60 60 60 60 60 60 350 ...... 83 80 75 75 75 70 70 70 70 70 750 ...... 83 80 80 80 75 75 75 75 75 75 1,500 ...... 83 83 80 80 78 78 75 75 75 75
This resulted in an assumed number graduate students who may receive Pell of additional undergraduate and Grants or take loans.
TABLE 4.C—NUMBER OF ADDITIONAL UNDERGRADUATE STUDENTS
Size of program 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
25 ...... 498 1,404 1,663 2,438 3,375 3,781 4,063 4,688 4,725 5,063 75 ...... 747 1,170 2,100 2,925 4,050 4,950 6,075 6,750 7,875 9,000 150 ...... 1,245 2,106 2,730 3,900 6,075 6,750 8,100 10,125 10,800 11,520 350 ...... 2,324 4,200 6,563 7,875 9,975 12,250 14,700 17,150 19,600 22,050 750 ...... 1,743 4,800 8,400 12,000 16,875 21,375 27,000 31,500 36,563 39,375 1,500 ...... 1,245 4,980 8,400 12,000 16,380 21,060 22,500 28,125 31,500 33,750
Total ...... 7,802 18,660 29,855 41,138 56,730 70,166 82,438 98,338 111,063 120,758
TABLE 4.D—NUMBER OF ADDITIONAL GRADUATE STUDENTS
Size of program 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
25 ...... 100 400 710 1,310 2,250 3,090 4,060 4,690 5,780 6,190 75 ...... 150 330 900 1,580 2,700 3,300 4,050 4,500 5,250 6,000 150 ...... 260 590 1,170 2,100 4,050 4,500 5,400 6,750 7,200 7,680 350 ...... 480 1,050 2,190 2,630 3,330 5,250 6,300 7,350 8,400 9,450 750 ...... 360 1,200 2,100 3,000 5,630 7,130 9,000 10,500 12,190 13,130 1,500 ...... 260 1,020 2,100 3,000 4,620 5,940 7,500 9,380 10,500 11,250
Total ...... 1,610 4,590 9,170 13,620 22,580 29,210 36,310 43,170 49,320 53,700
The next assumption involved the for competency-based programs is to independent applicants without percent of those additional students expand opportunities for non-traditional dependents had family incomes under who would receive Pell Grants and students, who typically qualify for Pell $25,000. If programs attract more would take out different types of loans. grants at higher rates; in the 2018–19 students from lower income brackets, For existing programs, the percent of award year 54% of dependent Pell Grant costs will increase. On the undergraduates with Pell Grants is applicants had a Pell eligible expected other hand, CBE and distance learning approximately 39 percent overall,59 but family contribution (EFC), while 85% of programs, including direct assessment this varies significantly by institution independent applicants met that programs, may be more attractive to and program type. One motivating factor threshold. However, independent working adults, who may be less likely applicants are often ineligible for Pell at to qualify for Pell grants given their relatively moderate incomes—in AY earnings. Evidence is mixed from 59 U.S. Department of Education, The FY 2021 Justification of Appropriations Estimates to 2018–19 88 percent of the eligible existing programs, both because the data Congress Vol. II: Student Financial Assistance, p. p- independent applicants with does not always distinguish students in 11. Available at www2.ed.gov/about/overview/ dependents had family incomes under CBE programs from those in traditional budget/budget21/justifications/p-sfa.pdf. $50,000 and 96 percent of the eligible programs at the institution and the
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percentage of students receiving Pell some CBE programs was 30 percent for percent for Southern New Hampshire Grants does vary among institutions Western Governor’s University, 33 University. Nonetheless, we assumed with at least some CBE programs. In percent for Sinclair Community College, that the percentage of students who may 2017–18 IPEDS student financial 35 percent for Northern Arizona be eligible for Pell Grants increases to 50 assistance data, the percent of University, 43 percent for Capella percent, resulting in the estimated undergraduates receiving a Pell Grant at University, 45 percent for the University number of additional Pell recipients some institutions known for at least of Wisconsin Flex program, and 47 shown in Table 4.E.
TABLE 4.E—ESTIMATED ADDITIONAL PELL RECIPIENTS
Size of program 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
25 ...... 249 702 831 1,219 1,688 1,891 2,031 2,344 2,363 2,531 75 ...... 374 585 1,050 1,463 2,025 2,475 3,038 3,375 3,938 4,500 150 ...... 623 1,053 1,365 1,950 3,038 3,375 4,050 5,063 5,400 5,760 350 ...... 1,162 2,100 3,281 3,938 4,988 6,125 7,350 8,575 9,800 11,025 750 ...... 872 2,400 4,200 6,000 8,438 10,688 13,500 15,750 18,281 19,688 1,500 ...... 623 2,490 4,200 6,000 8,190 10,530 11,250 14,063 15,750 16,875
Total ...... 3,901 9,330 14,928 20,569 28,365 35,083 41,219 49,169 55,531 60,379
We also assumed a distribution of Pell We recognize that competency-based otherwise occur. The additional 60,379 recipients based on expected growth in and direct assessment programs, in recipients estimated for 2030 would programs by type and control of particular, are a relatively new and account for under 1 percent of all institutions, as shown in Table 4.F. developing part of the postsecondary estimated 8.25 million Pell recipients in However, the share of programs market and it is not clear what 2030–31 and result in an increase in reflected in Table 4.F does not institutions will pursue opportunities in program costs of approximately $1,397 necessarily reflect the share of students this area or how the size and scope of million, a 0.4 percent increase in at each type of institution. programs offered will develop. estimated 10-year Pell Grant program Estimated program costs for Pell Grants costs of $329.0 billion. TABLE 4.F—ASSUMED DISTRIBUTION range from $30.1 billion in AY 2021–22 OF NEW PROGRAMS BY INSTITU- For the loan programs, we used the to $36.1 billion in AY 2030–31, with a estimated split between graduate and TIONAL CATEGORY 10-year total estimate of $329.0 billion. undergraduate programs to develop On average, the FY 2021 President’s additional volume estimates by loan Share of Budget projects a baseline increase in programs type and student loan model risk-group. Pell Grant recipients from 2021 to 2030 (%) Table 4.G presents the assumed of approximately 150,000 annually. The borrowing rate by loan type of the 4-year public ...... 22 increase in Pell Grant recipients additional students. 2-year public ...... 30 estimated due to these regulations 4-year private ...... 15 ranges from about 6 percent in 2022 to 2-year private ...... 8 Proprietary ...... 25 approximately 41 percent by 2030 of the projected annual increase that would
TABLE 4.G—ESTIMATED BORROWING RATES BY LOAN TYPE
2021 2022 2023 2024 2025 2026 2027 2028 2029 2030 (%) (%) (%) (%) (%) (%) (%) (%) (%) (%)
Subsidized ...... 45 45 45 45 45 45 45 45 45 45 Unsubsidized ...... 55 55 55 55 55 55 55 55 55 55 Parent PLUS...... 10 10 10 10 10 10 10 10 10 10 Grad Unsubsidized... 35 35 35 35 35 35 35 35 35 35 Grad PLUS...... 25 25 25 25 25 25 25 25 25 25
We then used estimated average loans volume by loan type, as shown in by loan type as projected for the PB2021 Tables 4.H and 4.I. estimates to estimate a total increase in
TABLE 4.H—ESTIMATED AVERAGE AMOUNTS PER BORROWER BY LOAN TYPE
Average loan 2021 2022 2023 2024 2025 2026 2027 2028 2029 2030
Subsidized ...... 4,240 4,240 4,240 4,250 4,250 4,260 4,260 4,270 4,280 4,290 Unsubsidized ...... 4,630 4,660 4,700 4,720 4,760 4,780 4,820 4,830 4,860 4,880 PLUS ...... 18,550 18,880 19,290 19,620 19,920 20,440 20,780 21,070 21,460 21,860 Grad Unsubsidized... 20,660 20,910 21,120 21,230 21,330 21,590 21,810 22,080 22,290 22,500 Grad PLUS...... 25,990 26,760 27,510 28,130 28,640 29,330 30,100 30,870 31,760 32,660
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TABLE 4.I—ESTIMATED ADDITIONAL LOAN VOLUME BY LOAN TYPE
Additional loan volume 2021 2022 2023 2024 2025
Subsidized ...... 14,886,216 35,603,280 56,963,340 78,675,469 108,496,125 Unsubsidized ...... 19,867,793 47,825,580 77,175,175 106,792,950 148,519,140 Parent PLUS...... 14,472,710 35,230,080 57,590,295 80,711,775 113,006,160 Grad Unsubsidized ...... 11,641,910 33,591,915 67,784,640 101,203,410 168,570,990 Grad PLUS ...... 10,460,975 30,707,100 63,066,675 95,782,650 161,672,800
Additional loan volume 2026 2027 2028 2029 2030
Subsidized ...... 134,508,701 158,032,688 188,955,506 213,906,375 233,122,354 Unsubsidized ...... 184,467,071 218,541,813 261,233,569 296,870,063 324,113,130 Parent PLUS...... 143,419,815 171,305,125 207,197,113 238,340,125 263,975,895 Grad Unsubsidized...... 220,725,365 277,172,385 333,617,760 384,769,980 422,887,500 Grad PLUS...... 214,182,325 273,232,750 333,164,475 391,600,800 438,460,500
Clearly, the large average borrowing the alternate scenarios to identify a group, but reduces the share in the 4- amounts of graduate students contribute range of possible impacts. year Junior/Senior risk group by 10–15 significantly to the loan volume As subsidy rates differ by risk group percentage points and the 4-year estimates, so a different mix of programs and loan type, the Department assumed Freshman/Sophomore risk group by or a different borrowing level would a distribution of the undergraduate approximately 5 percentage points and affect the estimated impact of the loans as shown in Table 4.J. This increases the share in the 2-year risk regulations, so we adjust this factor in distribution is based on the PB2021 groups. All graduate loans are in the distribution of loan volume by risk graduate risk group.
TABLE 4.J—ASSUMED DISTRIBUTION OF ADDITIONAL LOAN VOLUMES BY RISK GROUP
Subsidized Unsubsidized Parent PLUS (%) (%) (%)
2-year Proprietary ...... 18 15 10 2-year Not-for-Profit ...... 20 15 10 4-year Freshman/Sophomore ...... 32 35 42 4-year Junior/Senior ...... 30 35 38
The resulting additional loan volumes Given the higher loan amounts default performance that is as good as or are generated by simple multiplication associated with PLUS loans and loans to better than national averages, but it is of the estimated additional graduate students, the negative subsidy not clear that most programs that will be undergraduate students by the percent rates that range from –20.57 in 2021 to created in the future will achieve that borrowing and average amount per –16.60 in 2028 generate significant result. Depending on how programs are borrower by loan type, and then by the savings ($¥427 mn in outlays) to offset configured, the market demand for distribution by risk group. The same the increased costs in other loan types. them, and their quality, key subsidy process occurred for graduate students. In Alternate 2, the higher non- components such as defaults, As seen from the approximately $100 consolidated loan volume eventually prepayments, and repayment plan billion total annual loan volume, even results in higher consolidated loan choice may vary and affect the cost small changes would result in a volume, that, combined with the other estimates. significant amount of additional loan positive subsidy categories results in a transfers. We update loan volume net cost in that scenario. Table 5 summarizes the Pell and loan estimates regularly; for PB2021 the total We do not assume any changes in effects for the Main, Alt1, and Alt2 non-consolidated loan volume estimates subsidy rates from the potential creation scenarios over a 10-year period. Each between FY2021 and FY2030 range of new programs or the other changes column reflects a scenario showing from $94 billion to $107 billion. The reflected in the regulations. We are estimated changes to Pell Grants and assumed changes in loan volume would uncertain to what extent and in what Direct Loans under those conditions. result in a small savings that represents direction the performance of programs Therefore, the overall amounts reflect the net impact of offsetting subsidy that expand or develop under the the sum of outlay changes occurring changes by loan type and risk group due regulations will shift relative to current under each scenario for Pell Grants and to positive subsidy rates for Subsidized programs. As indicated previously, Direct Loans when combined. and Unsubsidized Stafford loans and several institutions known for negative subsidy rates for PLUS Loans. competency-based programs have
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TABLE 5—ESTIMATED NET IMPACT OF PELL GRANT AND LOAN CHANGES— 2021–2030 OUTLAYS [$mns]
Main Alt 1 Alt 2
Pell Grants ...... 1,163 465 1,804 Loans ...... ¥54 ¥26 107
Overall ...... 1,109 439 1,911
The cost estimates presented above do because of limited information on the strategic plans in a ‘‘minor way’’ and 16 not attempt to account for several potential significance include the percent in a ‘‘major way’’.60 It is also factors that could ultimately result in a treatment of out-of-class hours and the unclear if the size and type of existing different net budget impact than the reasonable length provisions related to CBE programs is representative of future primary estimate presented in Table 5, clock hour programs. CBE programs, especially direct including potential cost differences As discussed previously, the assessment programs. among programs and relative repayment uncertainty around several factors In order to capture the effect of performance. As discussed previously, affected by the changes led the changing some of the key assumptions one potential benefit of competency Department to develop some alternative associated with the primary budget based programs is reduced costs for scenarios for the potential impacts. The estimate, the Department developed the students relative to other programs. If a extent to which institutions invest in Alternate Scenarios presented in Table large share of students would have making direct assessment programs 6. Alternate 1 is a low impact scenario attended a different program or work and try to enroll additional that reduces the number of additional completed faster, their Pell Grant or students as opposed to converting some programs and students and lowers the borrowing may be lower than assumed portion of existing enrollments to this average amount borrowed and the in the PB2021 baseline. However, type of program is unclear. In the AIR percentage of students eligible for Pell without more significant evidence, we survey about competency-based Grants. Alternate 2, the high impact are not estimating any savings from that education, approximately 40 percent of scenario, increases programs and possibility. Other provisions that we do the 501 institutional respondents student growth, the percentage of Pell not include in the budget estimate indicated CBE is in their institutions’ recipients, and amounts borrowed.
TABLE 6—ALTERNATE SCENARIOS
Alternate 1—low impact Alternate 2—high impact
Program Growth ...... Eliminate half the programs per cell for 3 + 20 programs per cell for 3 smallest cat- smallest categories and one-third of pro- egories; +5 programs per cell for 3 largest grams in 3 largest size categories. size categories through 2025 and +10 per cell for 2026 to 2029. Undergraduate Program Share ...... +15 percent ...... ¥15 percent. Percent of Pell Recipients ...... 30 percent ...... 75 percent. Distribution of Pell Recipients by Institutional 4-yr Public 10% ...... 4-yr Public 30%. Category. 4-yr Private 5% ...... 4-yr Private 24%. 2-yr Public 38% ...... 2-yr Public 20%. 2-yr Private 10% ...... 2-yr Private 5%. Proprietary 37% ...... Proprietary 21%. Borrowing Rates ...... Subsidized ¥10% ...... Subsidized +5%. Unsubsidized ¥15% ...... Unsubsidized +10%. Plus ¥5% ...... Plus +5%. Grad Unsub ¥15% ...... Grad Unsub +10%. Grad Plus ¥15% ...... Grad Plus +10%. Average Loan Amount ...... Decrease 20 percent ...... Increase 10 percent. Distribution by Risk Group (Subsidized and Un- 2-yr Prop ¥10% ...... 2-yr Prop +15%. subsidized). 2-yr NFP ¥5% ...... 2-yr NFP +10%. 4-yr FRSO +10% ...... 4-yr FRSO ¥15%. 4-yr JRSR +5% ...... 4-yr JRSR ¥10%. GRAD No change ...... GRAD No change. Distribution by Risk Group (PLUS) ...... 2-yr Prop ¥6% ...... 2-yr Prop +12%. 2-yr NFP ¥3% ...... 2-yr NFP +8%. 4-yr FRSO +6% ...... 4-yr FRSO ¥12%. 4-yr JRSR +3% ...... 4-yr JRSR ¥8%. GRAD No change ...... GRAD No change.
60 www.air.org/sites/default/files/National- Survey-of-Postsec-CBE-2018-AIR-Eduventures-Jan- 2019.pdf.
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Accounting Statement have prepared an accounting statement transfers as a result of these final showing the classification of the regulations. Expenditures are classified As required by OMB Circular A–4 expenditures associated with the as transfers from the Federal (available at www.whitehouse.gov/sites/ provisions of these final regulations. Government to affected student loan default/files/omb/assets/omb/circulars/ This table provides our best estimate of borrowers and Pell Grant recipients. a004/a-4.pdf), in the following table we the changes in annual monetized
TABLE 7—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED EXPENDITURES [in millions]
Category Benefits
Clarification of terms and processes related to establishing programs and administering title IV aid to encour- age development of new programs ...... Not Quantified
Net Reduction in Paperwork Burden on Institutions, primarily due to elimination of Net Present Value calcula- tion related to the 90/10 rule ...... 7% 3%
$¥0.30 $¥0.30
Not Quantified
Category Costs
Category Transfers
Increased transfers of Pell Grants ...... 7% 3% $101.2 $109.6 Increased transfers of loans to students in additional programs established, in part, due to the regulations ...... $¥6.9 $¥6.1
Alternatives Considered negotiated rulemaking committee alternatives that were considered are Several proposals were considered on moved toward consensus. Some key summarized in Table 76. various sections of the regulations as the
TABLE 8—KEY ALTERNATIVES CONSIDERED
Topic Alternative proposal Reasons rejected
Definition of Credit Hour ...... Eliminate time-based requirements ...... Retain definition for some consistency across higher education. Subscription-based pro- Disbursement based on attempted programs, not com- Concern for potential abuse leading to paying title IV grams. pleted ones. aid for same course twice. Include a competency in student’s enrollment status more than once if it overlapped more than one sub- scription period. Written Arrangement ...... No limitation on percentage of program that could be Goal was to facilitate partnerships with organizations provided by written arrangement with ineligible entity. using trade experts in workplace environment. Com- mittee found sufficient flexibility with existing limit and changes would call into question whether the eligible institution was really offering the program. Program Length ...... Allow limiting program length to 100 percent of the re- Concern that changes would encourage institutions to quirements in any State and then 100 percent re- add hours beyond what is necessary for student to quired for licensure in an adjoining State. become employed.
Regulatory Flexibility Act Analysis technology and those that are based on educational innovations such as These final regulations are expected the demonstration of competencies subscription-based and direct to have a significant impact on rather than seat time, to help assessment programs as well as new institutions, many of which are institutions understand regulatory technology-driven delivery considered to be small entities. The requirements for such programs and to mechanisms, such as adaptive learning. analysis presented below evaluates the facilitate further innovations in such The regulations also seek to clarify impact of the final regulations on these areas. The regulations provide or clarify definitions used to differentiate between small entities. definitions of terms such as distance education and correspondence correspondence course, distance courses, while at the same time Description of the Reasons That Action education, subscription-based program, preserving student protections and title by the Agency Is Being Considered and clock hour, where the HEA IV financial aid distribution. The Department is regulating to provides no definition. reflect the development in The regulations send a signal to the postsecondary education delivery higher education community that the models, including those facilitated by Department is committed to supporting
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Succinct Statement of the Objectives of, flexibility to ensure that future Description of and, Where Feasible, an and Legal Basis for, the Regulations innovations we cannot yet anticipate Estimate of the Number of Small have an opportunity to move forward. Entities to Which the Regulations Will These final regulations amend the The regulations are also designed to Apply Institutional Eligibility regulations protect students and taxpayers from issued under the HEA, related to unreasonable risks. Inadequate Of the entities that the final distance education and innovation in 34 consumer information could result in regulations will affect, we consider CFR part 600. In addition, these students enrolling in programs that will many institutions to be small. The regulations amend the Student not help them meet their goals. In Department recently proposed a size Assistance General Provisions addition, institutions adopting classification based on enrollment using regulations issued under the HEA in 34 innovative methods of educating IPEDS data that established the CFR parts 602 and 668. The changes to students may expend taxpayer funds in percentage of institutions in various part 600 are authorized by 20 U.S.C. ways that were not contemplated by sectors considered to be small entities, 1001, 1002, 1003, 1088, 1091, 1094, Congress or the Department, resulting in 1099b, and 1099c. The change to part as shown in Table 8. We described this greater risk to the taxpayers of waste, size classification in the NPRM 602, removing the definition of fraud, and abuse and to the institution published in the Federal Register on ‘‘Distance education’’ (now defined in of undeserved negative program review July 31, 2018 for the borrower defense part 600), is authorized by 20 U.S.C. findings. These regulations attempt to 1099b while the changes to part 668 are limit risks to students and taxpayers rule (83 FR 37242, 37302). The authorized by 20 U.S.C. 1001–1003, resulting from innovation by delegating Department discussed the proposed 1070a, 1070g, 1085, 1087b, 1087d, various oversight functions to the bodies standard with the Chief Counsel for 1087e, 1088, 1091, 1092, 1094, 1099c, best suited to conduct that oversight— Advocacy of the Small Business 1099c–1, 1221e–3, and 3474. States and accreditors. This delegation Administration, and while no change Through the final regulations, we of authority through the higher has been finalized, the Department attempt to remove barriers that education regulatory triad entrusts continues to believe this approach most institutions face when trying to create oversight of most consumer protections accurately reflects a common basis for and implement new and innovative to States, assurance of academic quality determining size categories that is ways of providing education to to accrediting agencies, and protection linked to the provision of educational students, and also provide sufficient of taxpayer funds to the Department. services.
TABLE 9 61—SMALL ENTITIES UNDER ENROLLMENT BASED DEFINITION
Level Type Small Total Percent
2-year ...... Public ...... 342 1,240 28 2-year ...... Private ...... 219 259 85 2-year ...... Proprietary ...... 2,147 2,463 87 4-year ...... Public ...... 64 759 8 4-year ...... Private ...... 799 1,672 48 4-year ...... Proprietary ...... 425 558 76
Total ...... 3,996 6,951 57
The regulations would provide that require sophisticated technology, distance learning and competency-based needed clarity around title IV eligibility may be impractical for small institutions education available to their students. for distance education, correspondence that cannot distribute the cost among a The regulations would remove many courses, subscription-based programs, population of enough size to result in barriers to innovation that currently and direct assessment programs. They favorable return-on-investment. We restrain institutions, including small would also provide greater clarity expect that the development of the first ones, and may accelerate innovations, regarding how the Department direct assessment program at an but these innovations were likely to take determines whether a program is of institution would be a multi-stage and place in postsecondary education reasonable length. The effect on small multi-year process involving choosing anyway given the call for new, more entities would vary by the extent they the subject areas appropriate for this efficient delivery models for the currently participate in such programs model, developing competencies, growing population of non-traditional or that they choose to do so going modifying course materials and teaching students and the likelihood that adults forward. Introducing competency-based approaches, reaching out to potential will be engaged in postsecondary programs in areas with strong demand future employers to build acceptance of education throughout their lifetime. could be an opportunity for some small the credential, and getting approval entities to maintain or expand their from accreditors and the Department, business. On the other hand, small and recruiting students. The Department entities could be vulnerable to does not have a detailed understanding competition from other institutions, of the costs and timeframe involved large or small, that are capturing an with establishing these programs, increasing share of the postsecondary especially for small entities and we market with distance or competency- welcome such information. Small based programs. Developing and institutions may be more inclined to implementing new programs and rely on consortia arrangements with 61 U.S. Department of Education analysis of IPEDs delivery models, and especially those other, larger institutions, to make 2015–16 enrollment data.
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Description of the Projected Reporting, Identification, to the Extent Practicable, information collection instrument Recordkeeping, and Other Compliance of All Relevant Federal Regulations displays a currently valid OMB control Requirements of the Regulations, That May Duplicate, Overlap, or number. Including an Estimate of the Classes of Conflict With the Regulations Notwithstanding any other provision Small Entities That Will Be Subject to The regulations are unlikely to of law, no person is required to comply the Requirement and the Type of conflict with or duplicate existing with, or is subject to penalty for failure Professional Skills Necessary for Federal regulations. Preparation of the Report or Record to comply with, a collection of Alternatives Considered information if the collection instrument The Department provides additional does not display a currently valid OMB As described above, the Department detail related to burden estimates in the control number. Paperwork Reduction Act section of this participated in negotiated rulemaking final rule. Overall, the Department when developing the regulations and Section 600.21—Updating Application estimates $300,288 in reduced considered several options for some of Information paperwork burden associated with the the provisions. These included: (1) elimination of the net present value Eliminating time-based requirements for Requirements: The regulations in calculation related to the 90/10 rule. credit hours; (2) no limitation on the § 600.21 require the institution to only This affects proprietary institutions, of percentage of a program that could be report the addition of a second or which approximately 85 percent are offered through written arrangement subsequent direct assessment program considered small according to Table 8 with an ineligible entity; (3) allowing without the review and approval of the (2,572/3,021), so most of that burden limiting program length to 100 percent Department when it previously has such reduction ($300,288*85 percent = of the requirements in any State and approval. The regulations also require $255,245) will be enjoyed by small then 100 percent required for licensure an institution to report the entities. The Department is unable to in an adjoining State, (4) disbursing establishment of a written arrangement estimate the effect of this change on the funds in subscription-based programs between the eligible institution and an profits of institutions, including those based on attempted competencies, not ineligible institution or organization in considered to be small entities. No completed ones; and (5) including a which the ineligible institution or mechanism exists to track profits at competency that overlaps subscription organization will provide more than 25 periods in a student’s enrollment status institutions. The only way to obtain data percent of a program. We also intend to on profits would be through a manual more than once. In proposing to remove request that institutions report review of financial statements submitted limits on the portion of a program that additional information related to the use by each institution. Even with that may be offered through a written information, the effect of this change on arrangement with an ineligible entity, of asynchronous distance education in profits could not be estimated with any the Department sought to make a wider clock hour programs and would degree of accuracy. First, it would be range of occupationally-related incorporate this change in the necessary to determine which schools educational resources available to Department’s system for reporting used (NPV), which was optional per our students than could be reasonably information related to the eligibility of regulations. Second, it would have to be provided by the institutions they attend. academic programs. We would meet all known, for the period that an institution It was the Department’s belief that this applicable Paperwork Reduction Act of used NPV, what revenue from change would particularly benefit 1995 (44 U.S.C. 3501–3520) institutional loans would have been had smaller institutions whose resources are requirements before collecting this that revenue included only loan typically more limited than those of information. payments received by the institution larger entities. Burden Calculation: We believe that during the fiscal year. Also, despite the the reporting of written arrangements estimated cost savings due to paperwork Paperwork Reduction Act of 1995 will impose burden on institutions. We burden reduction, the full time As part of its continuing effort to estimate that 36 institutions will need to equivalent of those employees who reduce paperwork and respondent calculated NPV most likely remains a burden, the Department provides the report such activities. We anticipate that salary expense. Finally, any savings general public and Federal agencies an institution will require an average of identified that would benefit profits with an opportunity to comment on .5 hours (30 minutes) to report such would have to be offset by the proposed and continuing collections of activities for a total estimated burden of corresponding reduction in revenue information in accordance with the 18 hours under OMB Control Number resulting from no longer being able to Paperwork Reduction Act of 1995 (PRA) 1845–NEW1. apply NPV. Regarding overall economic (44 U.S.C. 3506(c)(2)(A)). This helps We estimate that there are 12 impact, it would be negligible given that ensure that the public understands the proprietary institutions that will be total savings of $255,245 is spread over Department’s collection instructions, required to report this information for 6 85% of the nearly 3,000 participating respondents can provide the requested burden hours (12 institutions × .5 hours for-profit institutions. There are also data in the desired format, reporting = 6 hours). We estimate that there are 11 some small increases in burden related burden (time and financial resources) is private institutions that will be required to reporting about direct assessment minimized, collection instruments are to report this information for 5 burden programs that is expected to increase clearly understood, and the Department hours (11 institutions × .5 hours = 5 burden on small entities by can properly assess the impact of hours). We estimate that there are 13 approximately 10 hours, a small collection requirements on respondents. increase for those small institutions that A Federal agency may not conduct or public institutions that will be required choose to participate in direct sponsor a collection of information to report this information for 7 burden × assessment programs or written unless OMB approves the collection hours (13 institutions .5 hours = 7 arrangements. under the PRA and the corresponding hours).
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600.21—UPDATING APPLICATION INFORMATION—1845–NEW1
Time factor Institution type Respondents Responses (hours) Burden hours Cost $106.94
Proprietary ...... 12 12 .5 6 $642 Private ...... 11 11 .5 5 538 Public ...... 13 13 .5 7 749
Total ...... 36 36 ...... 18 1,926
Section 668.5—Written Arrangements Burden Calculation: The proposed from the institution. Based on the To Provide Education Programs burden of 120 hours in the information explanation provided in the preamble, Requirements: The proposed collection 1845–NEW2 is being the regulations in § 668.28(b) no longer regulations in § 668.5 which required an withdrawn. applies to the calculation of the eligible institution to demonstrate how Section 668.28—Non-Title IV Revenue treatment of revenue. Therefore, the an ineligible institution has the (90/10) current burden applied under OMB experience in the delivery and Control Number 1845–0096 will be assessment of the program or portions Requirements: The regulations in eliminated. Upon the effective date of thereof that the ineligible institution § 668.28 remove the Net Present Value these regulation, the currently assessed would be contracted to deliver under calculation currently in the regulations. 2,808 burden hours will be the terms of the written arrangement has Burden Calculation: This regulatory discontinued. been removed from the final rule. language change will remove burden
SECTION 668.28—NON-TITLE IV REVENUE (90/10)—1845–0096
Time factor Cost savings Institution type Respondents Responses (hours) Burden hours $106.94/hour
Proprietary ...... ¥936 ¥936 2 ¥1,872 $¥200,192 Proprietary ...... ¥936 ¥936 1 ¥936 ¥100,096
Total ...... ¥1,872 ¥1,872 ...... ¥2,808 ¥300,288
The estimated cost to institutionsis Postsecondary Education be small entities, most of the reduction $53.47 per hour based on the 2018 mean Administrators 62 × 2 to account for and corresponding cost savings will hourly information from the Bureau of benefits and expenses for a total per accrue to those institutions. Labor Statistics Occupational hour cost of $106.94. As 85 percent of Employment Statistics for for-profit institutions are considered to
OMB control No. & estimated Estimated costs Regulatory section Information collection burden (change in burden) $106.94/hour
§ 600.21 Updating application The regulations in § 600.21 require the institution to only re- 1845–NEW1—18 hours ...... $1,926 information. port the addition of a second or subsequent direct as- sessment program without the review and approval of the Department when it previously been awarded such approval. The regulations also require an institution to re- port the establishment of a written arrangement between the eligible institution and an ineligible institution or orga- nization in which the ineligible institution or organization would provide more than 25 percent of a program. § 668.5—Written arrange- The regulations in § 668.5 requiring the eligible institution to 1845–NEW2—0 hours ...... 0 ments to provide education demonstrate how the ineligible institution has the experi- programs. ence in the delivery and assessment of the program or portions thereof that the ineligible institution would be contracted to deliver under the terms of the written ar- rangement has been removed from the final rule and this estimated burden is withdrawn. § 668.28 Non-title IV revenue The regulations in § 668.28 removes the Net Present Value ¥2,808 ...... (300,288) (90/10). calculation currently in the regulations.
62 www.bls.gov/oes/current/oes119033.htm.
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Collection of Information OMB control number affected by the The total burden hours and change in regulations follows: the burden hours associated with each
OMB control No. Total burden hours Change in burden hours
1845–NEW1 ...... + 18 + 18 1845–NEW2 ...... 0 0 1845–0096 ...... ¥2,808 ¥2,808
Total ...... ¥2,790 ¥2,790
Intergovernmental Review You may also access documents of the ■ c. Adding, in alphabetical order, a These regulations are not subject to Department published in the Federal definition for ‘‘Juvenile justice facility’’. ■ Executive Order 12372 and the Register by using the article search d. Revising the definition ‘‘Nonprofit regulations in 34 CFR part 79. feature at: www.federalregister.gov. institution’’. Specifically, through the advanced ■ e. Removing the authority citation at Assessment of Educational Impact search feature at this site, you can limit the end of the section. Based on the response to the NPRM your search to documents published by The additions and revisions read as and on our review, we have determined the Department. follows: that these final regulations do not List of Subjects § 600.2 Definitions. require transmission of information that * * * * * any other agency or authority of the 34 CFR Part 600 Academic engagement: Active United States gathers or makes Colleges and universities, Grant participation by a student in an available. programs-education, Loan programs- instructional activity related to the Federalism education, Reporting and recordkeeping student’s course of study that— requirements, Student aid, Vocational Executive Order 13132 requires us to (1) Is defined by the institution in education. ensure meaningful and timely input by accordance with any applicable State and local elected officials in the 34 CFR Part 602 requirements of its State or accrediting agency; development of regulatory policies that Colleges and universities, Vocational have federalism implications. (2) Includes, but is not limited to— education. (i) Attending a synchronous class, ‘‘Federalism implications’’ means lecture, recitation, or field or laboratory substantial direct effects on the States, 34 CFR Part 668 activity, physically or online, where on the relationship between the Administrative practice and there is an opportunity for interaction National Government and the States, or procedure, Colleges and universities, on the distribution of power and between the instructor and students; Consumer protection, Grant programs- (ii) Submitting an academic responsibilities among the various education, Loan programs-education, assignment; levels of government. In the NPRM we Reporting and recordkeeping (iii) Taking an assessment or an exam; noted that parts 600 and 668 may have requirements, Student aid, Vocational (iv) Participating in an interactive federalism implications and encouraged education. tutorial, webinar, or other interactive State and local elected officials to Betsy DeVos, computer-assisted instruction; review and provide comments on these (v) Participating in a study group, final regulations. In the Public Comment Secretary of Education. group project, or an online discussion section of this preamble, we discuss any For the reasons discussed in the that is assigned by the institution; or comments we received on this subject. preamble, the Secretary amends parts (vi) Interacting with an instructor Accessible Format: Individuals with 600, 602, and 668 of title 34 of the Code about academic matters; and disabilities can obtain this document in of Federal Regulations as follows: (3) Does not include, for example— an accessible format (e.g., braille, large (i) Living in institutional housing; print, audiotape, or compact disc) on PART 600—INSTITUTIONAL (ii) Participating in the institution’s request to the person listed under FOR ELIGIBILITY UNDER THE HIGHER meal plan; FURTHER INFORMATION CONTACT. EDUCATION ACT OF 1965, AS (iii) Logging into an online class or Electronic Access to This Document: AMENDED tutorial without any further The official version of this document is ■ participation; or the document published in the Federal 1. The authority citation for part 600 (iv) Participating in academic Register. You may access the official continues to read as follows: counseling or advisement. edition of the Federal Register and the Authority: 20 U.S.C. 1001, 1002, 1003, * * * * * Code of Federal Regulations at 1088, 1091, 1094, 1099b, and 1099c, unless Clock hour: (1) A period of time www.govinfo.gov. At this site you can otherwise noted. consisting of— view this document, as well as all other ■ 2. Section 600.2 is amended by: (i) A 50- to 60-minute class, lecture, documents of this Department ■ a. Adding, in alphabetical order, a or recitation in a 60-minute period; published in the Federal Register, in definition for ‘‘Academic engagement’’. (ii) A 50- to 60-minute faculty- text or Adobe Portable Document ■ b. Revising the definitions of ‘‘Clock supervised laboratory, shop training, or Format (PDF). To use PDF, you must hour’’, ‘‘Correspondence course’’, internship in a 60-minute period; have Adobe Acrobat Reader, which is ‘‘Credit hour’’, ‘‘Distance education’’, (iii) Sixty minutes of preparation in a available free at the site. and ‘‘Incarcerated student’’. correspondence course; or
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(iv) In distance education, 50 to 60 other academic work leading to the (ii) Monitoring the student’s academic minutes in a 60-minute period of award of credit hours; and engagement and success and ensuring attendance in— (2) Permits an institution, in that an instructor is responsible for (A) A synchronous or asynchronous determining the amount of work promptly and proactively engaging in class, lecture, or recitation where there associated with a credit hour, to take substantive interaction with the student is opportunity for direct interaction into account a variety of delivery when needed on the basis of such between the instructor and students; or methods, measurements of student monitoring, or upon request by the (B) An asynchronous learning activity work, academic calendars, disciplines, student. involving academic engagement in and degree levels. * * * * * which the student interacts with * * * * * Incarcerated student: A student who technology that can monitor and Distance education: (1) Education that is serving a criminal sentence in a document the amount of time that the uses one or more of the technologies Federal, State, or local penitentiary, student participates in the activity. listed in paragraphs (2)(i) through (iv) of prison, jail, reformatory, work farm, (2) A clock hour in a distance this definition to deliver instruction to juvenile justice facility, or other similar education program does not meet the students who are separated from the correctional institution. A student is not requirements of this definition if it does instructor or instructors and to support considered incarcerated if that student not meet all accrediting agency and regular and substantive interaction is in a half-way house or home State requirements or if it exceeds an between the students and the instructor detention or is sentenced to serve only agency’s or State’s restrictions on the or instructors, either synchronously or weekends. For purposes of Pell Grant number of clock hours in a program that asynchronously. eligibility under 34 CFR 668.32(c)(2)(ii), may be offered through distance (2) The technologies that may be used a student who is incarcerated in a education. to offer distance education include— juvenile justice facility, or in a local or (3) An institution must be capable of (i) The internet; county facility, is not considered to be monitoring a student’s attendance in 50 (ii) One-way and two-way incarcerated in a Federal or State penal out of 60 minutes for each clock hour transmissions through open broadcast, institution, regardless of which under this definition. closed circuit, cable, microwave, governmental entity operates or has Correspondence course: (1) A course broadband lines, fiber optics, satellite, jurisdiction over the facility, including provided by an institution under which or wireless communications devices; the Federal Government or a State, but the institution provides instructional (iii) Audio conference; or is considered incarcerated for the materials, by mail or electronic (iv) Other media used in a course in purposes of determining costs of transmission, including examinations conjunction with any of the attendance under section 472 of the on the materials, to students who are technologies listed in paragraphs (2)(i) HEA in determining eligibility for and separated from the instructors. through (iii) of this definition. the amount of the Pell Grant. Interaction between instructors and (3) For purposes of this definition, an Juvenile justice facility: A public or students in a correspondence course is instructor is an individual responsible private residential facility that is limited, is not regular and substantive, for delivering course content and who operated primarily for the care and and is primarily initiated by the student. meets the qualifications for instruction rehabilitation of youth who, under State (2) If a course is part correspondence established by an institution’s juvenile justice laws— and part residential training, the accrediting agency. (1) Are accused of committing a Secretary considers the course to be a (4) For purposes of this definition, delinquent act; correspondence course. substantive interaction is engaging (2) Have been adjudicated delinquent; (3) A correspondence course is not students in teaching, learning, and or distance education. assessment, consistent with the content (3) Are determined to be in need of Credit hour: Except as provided in 34 under discussion, and also includes at supervision. CFR 668.8(k) and (l), a credit hour is an least two of the following— * * * * * amount of student work defined by an (i) Providing direct instruction; Nonprofit institution: An institution institution, as approved by the (ii) Assessing or providing feedback that— institution’s accrediting agency or State on a student’s coursework; (1)(i) Is owned and operated by one of approval agency, that is consistent with (iii) Providing information or more nonprofit corporations or commonly accepted practice in responding to questions about the associations, no part of the net earnings postsecondary education and that— content of a course or competency; of which benefits any private (1) Reasonably approximates not less (iv) Facilitating a group discussion shareholder or individual; than— regarding the content of a course or (ii) Is legally authorized to operate as (i) One hour of classroom or direct competency; or a nonprofit organization by each State in faculty instruction and a minimum of (v) Other instructional activities which it is physically located; and two hours of out-of-class student work approved by the institution’s or (iii) Is determined by the U.S. Internal each week for approximately fifteen program’s accrediting agency. Revenue Service to be an organization to weeks for one semester or trimester hour (5) An institution ensures regular which contributions are tax-deductible of credit, or ten to twelve weeks for one interaction between a student and an in accordance with section 501(c)(3) of quarter hour of credit, or the equivalent instructor or instructors by, prior to the the Internal Revenue Code (26 U.S.C. amount of work over a different period student’s completion of a course or 501(c)(3)); or of time; or competency— (2) For a foreign institution— (ii) At least an equivalent amount of (i) Providing the opportunity for (i) An institution that is owned and work as required in paragraph (1)(i) of substantive interactions with the operated only by one or more nonprofit this definition for other academic student on a predictable and scheduled corporations or associations; and activities as established by the basis commensurate with the length of (ii)(A) If a recognized tax authority of institution, including laboratory work, time and the amount of content in the the institution’s home country is internships, practica, studio work, and course or competency; and recognized by the Secretary for purposes
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of making determinations of an prompt action is taken by the requirements in this part and in 34 CFR institution’s nonprofit status for title IV Department on any materially complete part 668 if the institution chooses to— purposes, is determined by that tax application required under this section. (A) Continue to participate in the title authority to be a nonprofit educational (2) If the institution also wishes to be IV, HEA programs beyond the institution; or certified to participate in the title IV, scheduled expiration of the institution’s (B) If no recognized tax authority of HEA programs, it must indicate that current eligibility and certification the institution’s home country is intent on the application, and submit all designation; recognized by the Secretary for purposes the documentation indicated on the (B) Reestablish eligibility and of making determinations of an application to enable the Secretary to certification as a private nonprofit, institution’s nonprofit status for title IV determine that it satisfies the relevant private for-profit, or public institution purposes, the foreign institution certification requirements contained in following a change in ownership that demonstrates to the satisfaction of the 34 CFR part 668, subparts B and L. results in a change in control as Secretary that it is a nonprofit (3) A freestanding foreign graduate described in § 600.31; or educational institution. medical school, or a foreign institution (C) Reestablish eligibility and * * * * * that includes a foreign graduate medical certification after the institution changes its status as a proprietary, nonprofit, or ■ 3. Section 600.7 is amended by: school, must include in its application ■ a. Redesignating paragraph (b)(2) as to participate— public institution. (b)(3). (i)(A) A list of all medical school (ii) The Secretary must ensure prompt ■ b. Adding a new paragraph (b)(2). educational sites and where they are action is taken by the Department on ■ c. Removing the authority citation at located, including all sites at which its any materially complete application the end of the section. students receive clinical training, except required under paragraph (a)(2)(i) of this The addition reads as follows: those clinical training sites that are not section. used regularly, but instead are chosen (3) A freestanding foreign graduate § 600.7 Conditions of institutional by individual students who take no medical school, or a foreign institution eligibility. more than two electives at the location that includes a foreign graduate medical * * * * * for no more than a total of eight weeks; school, must include in its reapplication (b) * * * and to participate— (2) Calculating the number of (B) The type of clinical training (core, (i)(A) A list of all of the foreign correspondence students. For purposes required clinical rotation, not required graduate medical school’s educational of paragraph (a)(1)(ii) of this section, a clinical rotation) offered at each site sites and where they are located, student is considered ‘‘enrolled in listed on the application in accordance including all sites at which its students correspondence courses’’ if the student’s with paragraph (a)(3)(i)(A) of this receive clinical training, except those enrollment in correspondence courses section; and clinical training sites that are not used constituted more than 50 percent of the (ii) Whether the school offers— regularly, but instead are chosen by courses in which the student enrolled (A) Only post-baccalaureate/ individual students who take no more during an award year. equivalent medical programs, as defined than two electives at the location for no * * * * * in § 600.52; more than a total of eight weeks; and ■ 4. Section 600.10 is amended by (B) Other types of programs that lead (B) The type of clinical training (core, revising paragraph (c)(1)(iii) and to employment as a doctor of required clinical rotation, not required removing the authority citation at the osteopathic medicine or doctor of clinical rotation) offered at each site end of the section to read as follows: medicine; or listed on the application in accordance (C) Both; and with paragraph (b)(3)(i)(A) of this § 600.10 Date, extent, duration, and (iii) Copies of the formal affiliation section; and consequence of eligibility. agreements with hospitals or clinics (ii) Whether the school offers— * * * * * providing all or a portion of a clinical (A) Only post-baccalaureate/ (c) * * * training program required under equivalent medical programs, as defined (1) * * * § 600.55(e)(1). in § 600.52; (iii) For a first direct assessment (b) Reapplication. (1) A currently (B) Other types of programs that lead program under 34 CFR 668.10, the first designated eligible institution that is not to employment as a doctor of direct assessment program offered at participating in the title IV, HEA osteopathic medicine or doctor of each credential level, and for a programs must apply to the Secretary medicine; or comprehensive transition and for a determination that the institution (C) Both; and postsecondary program under 34 CFR continues to meet the requirements in (iii) Copies of the formal affiliation 668.232, obtain the Secretary’s approval. this part if the Secretary requests the agreements with hospitals or clinics * * * * * institution to reapply. If the institution providing all or a portion of a clinical chooses to be certified to participate in training program required under ■ 5. Section 600.20 is revised to read as the title IV, HEA programs, it must § 600.55(e)(1). follows: submit an application to the Secretary (c) Application to expand eligibility. § 600.20 Notice and application and must submit all the supporting A currently designated eligible procedures for establishing, reestablishing, documentation indicated on the institution that wishes to expand the maintaining, or expanding institutional application to enable the Secretary to scope of its eligibility and certification eligibility and certification. determine that it satisfies the relevant and disburse title IV, HEA Program (a) Initial eligibility application. (1) certification requirements contained in funds to students enrolled in that An institution that wishes to establish subparts B and L of 34 CFR part 668. expanded scope must apply to the its eligibility to participate in any HEA (2)(i) A currently designated eligible Secretary and wait for approval to— program must submit an application to institution that participates in the title (1) Add an educational program or a the Secretary for a determination that it IV, HEA programs must apply to the location at which the institution offers qualifies as an eligible institution under Secretary for a determination that the or will offer 50 percent or more of an this part. The Secretary must ensure institution continues to meet the educational program if one of the
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following conditions applies, otherwise the Secretary receives the notice (i) Describe in the notice how the it must report to the Secretary under described in paragraph (d)(2) of this institution determined the need for the § 600.21: section at least 90 days before the first program and how the program was (i) The institution participates in the day of class of the educational program. designed to meet local market needs, or title IV, HEA programs under a (B) If an institution does not provide for an online program, regional or provisional certification, as provided in timely notice in accordance with national market needs. This description 34 CFR 668.13. paragraph (d)(1)(ii)(A) of this section, must contain any wage analysis the (ii) The institution receives title IV, the institution must obtain approval of institution may have performed, HEA program funds under the the additional educational program from including any consideration of Bureau reimbursement or cash monitoring the Secretary for title IV, HEA program of Labor Statistics data related to the payment method, as provided in 34 CFR purposes. program; part 668, subpart K. (C) If an additional educational (ii) Describe in the notice how the (iii) The institution acquires the assets program is required to be approved by program was reviewed or approved by, of another institution that provided the Secretary for title IV, HEA program or developed in conjunction with, educational programs at that location purposes under paragraph (d)(1)(ii)(B) of business advisory committees, program during the preceding year and this section, the Secretary may grant integrity boards, public or private participated in the title IV, HEA approval, or request further information oversight or regulatory agencies, and programs during that year. prior to making a determination of businesses that would likely employ (iv) The institution would be subject whether to approve or deny the graduates of the program; to a loss of eligibility under 34 CFR additional educational program. (iii) Submit documentation that the 668.188 if it adds that location. (D) When reviewing an application program has been approved by its (v) The Secretary notifies, or has under paragraph (d)(1)(ii)(C) of this accrediting agency or is otherwise notified, the institution that it must section, the Secretary will take into included in the institution’s apply for approval of an additional consideration the following: accreditation by its accrediting agency, educational program or a location under (1) The institution’s demonstrated or comparable documentation if the § 600.10(c). financial responsibility and institution is a public postsecondary (2) Increase its level of program administrative capability in operating vocational institution approved by a offering (e.g., adding graduate degree its existing programs. recognized State agency for the approval programs when it previously offered (2) Whether the additional of public postsecondary vocational only baccalaureate degree programs); educational program is one of several education in lieu of accreditation; and (3) Add an educational program if the (iv) Provide the date of the first day institution is required to apply to the new programs that will replace similar programs currently provided by the of class of the new program. Secretary for approval under § 600.10(c); (e) Secretary’s response to (4) Add a branch campus at a location institution, as opposed to supplementing or expanding the current applications. (1) If the Secretary that is not currently included in the receives an application under paragraph institution’s eligibility and certification programs provided by the institution. (3) Whether the number of additional (a) or (b)(1) of this section, the Secretary designation; notifies the institution— (5) For a freestanding foreign graduate educational programs being added is inconsistent with the institution’s (i) Whether the applicant institution medical school, or a foreign institution qualifies in whole or in part as an that includes a foreign graduate medical historic program offerings, growth, and operations. eligible institution under the school, add a location that offers all or appropriate provisions in §§ 600.4 (4) Whether the process and a portion of the foreign graduate through 600.7; and determination by the institution to offer medical school’s core clinical training (ii) Of the locations and educational an additional educational program that or required clinical rotations, except for programs that qualify as the eligible leads to gainful employment in a those locations that are included in the institution if only a portion of the recognized occupation is sufficient. accreditation of a medical program applicant qualifies as an eligible (E)(1) If the Secretary denies an accredited by the Liaison Committee on institution. Medical Education (LCME) or the application from an institution to offer (2) If the Secretary receives an American Osteopathic Association an additional educational program, the application under paragraph (a) or (b) of (AOA); or denial will be based on the factors this section and that institution applies (6) Convert an eligible location to a described in paragraphs (d)(1)(ii)(D)(2) to participate in the title IV, HEA branch campus. and (3) of this section, and the Secretary programs, the Secretary notifies the (d) Notice and application—(1) Notice will explain in the denial how the institution— and application procedures. (i) To institution failed to demonstrate that the (i) Whether the institution is certified satisfy the requirements of paragraphs program is likely to lead to gainful to participate in those programs; (a), (b), and (c) of this section, an employment in a recognized (ii) Of the title IV, HEA programs in institution must notify the Secretary of occupation. which it is eligible to participate; its intent to offer an additional (2) If the Secretary denies the (iii) Of the title IV, HEA programs in educational program, or provide an institution’s application to add an which it is eligible to apply for funds; application to expand its eligibility, in additional educational program, the (iv) Of the effective date of its a format prescribed by the Secretary and Secretary will permit the institution to eligibility to participate in those provide all the information and respond to the reasons for the denial programs; and documentation requested by the and request reconsideration of the (v) Of the conditions under which it Secretary to make a determination of its denial. may participate in those programs. eligibility and certification. (2) Notice format. An institution that (3) If the Secretary receives an (ii)(A) An institution that notifies the notifies the Secretary of its intent to application under paragraph (b)(2) of Secretary of its intent to offer an offer an additional educational program this section, the Secretary notifies the educational program under paragraph under paragraph (c)(3) of this section institution whether it continues to be (c)(3) of this section must ensure that must at a minimum— certified, or whether it reestablished its
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eligibility and certification to participate § 600.52 Definitions. institutions and must meet all in the title IV, HEA programs and the * * * * * requirements of paragraph (1) of this scope of such approval. Foreign institution: (1) For the definition, and the other requirements (4) If the Secretary receives an purposes of students who receive title of this part. For the purposes of this application under paragraph (c)(1) of IV aid, an institution that— paragraph (3), an educational enterprise this section for an additional location, (i) Is not located in the United States; consists of two or more locations the Secretary notifies the institution (ii) Except as provided with respect to offering all or part of an educational whether the location is eligible or clinical training offered under program that are directly or indirectly ineligible to participate in the title IV, § 600.55(h)(1), § 600.56(b), or under common ownership. HEA programs, and the date of § 600.57(a)(2)— * * * * * eligibility if the location is determined (A) Has no U.S. location; eligible. (B) Has no written arrangements, ■ 8. Section 600.54 is amended by (5) If the Secretary receives an within the meaning of 34 CFR 668.5, revising paragraph (c) and removing the application under paragraph (c)(2) of with institutions or organizations authority citation at the end of the this section for an increase in the level located in the United States for those section to read as follows: of program offering, or for an additional institutions or organizations to provide a portion of an eligible program, as § 600.54 Criteria for determining whether a educational program under paragraph foreign institution is eligible to apply to (c)(3) of this section, the Secretary defined under 34 CFR 668.8, except for participate in the Direct Loan Program. written arrangements for no more than notifies the institution whether the * * * * * program qualifies as an eligible 25 percent of the courses required by program, and if the program qualifies, the program to be provided by eligible (c)(1) Notwithstanding 34 CFR 668.5, the date of eligibility. institutions located in the United States; written arrangements between an (6) If the Secretary receives an and eligible foreign institution and an application under paragraph (c)(4) or (5) (C) Does not permit students to ineligible entity are limited to those of this section to have a branch campus complete an eligible program by under which— certified to participate in the title IV, enrolling in courses offered in the (i) The ineligible entity is an HEA programs as a branch campus, the United States, except that it may permit institution that meets the requirements Secretary notifies the institution students to complete up to 25 percent of in paragraphs (1)(iii) and (iv) of the whether that branch campus is certified the program by— definition of ‘‘foreign institution’’ in to participate and the date that the (1) Enrolling in the coursework, § 600.52; and research, work, or special studies branch campus is eligible to begin (ii) The ineligible foreign institution offered by an eligible institution in the participation. provides 25 percent or less of the ■ United States; or 6. Amend § 600.21 by revising (2) Participating in an internship or educational program. paragraph (a)(11) and adding paragraphs externship provided by an ineligible (2) For the purpose of this paragraph (a)(12) and (13) and removing the organization as described in 34 CFR (c), written arrangements do not include authority citation at the end of the 668.5(h)(2); affiliation agreements for the provision section to read as follows: (iii) Is legally authorized by the of clinical training for foreign medical, § 600.21 Updating application information. education ministry, council, or veterinary, and nursing schools. equivalent agency of the country in (a) * * * * * * * * which the institution is located to (11) For any program that is required provide an educational program beyond PART 602—THE SECRETARY’S to provide training that prepares a the secondary education level; and RECOGNITION OF ACCREDITING student for gainful employment in a (iv) Awards degrees, certificates, or AGENCIES recognized occupation— other recognized educational credentials (i) Establishing the eligibility or in accordance with § 600.54(e) that are ■ 9. The authority citation for part 602 reestablishing the eligibility of the officially recognized by the country in continues to read as follows: program; which the institution is located. (ii) Discontinuing the program’s Authority: 20 U.S.C. 1099b, unless (2) Notwithstanding paragraph otherwise noted. eligibility; (1)(ii)(C) of this definition, independent (iii) Ceasing to provide the program research done by an individual student ■ 10. Section 602.3 is amended by: for at least 12 consecutive months; in the United States for not more than ■ a. Adding periods at the ends of (iv) Losing program eligibility under one academic year is permitted, if it is § 600.40; or paragraphs (a)(1) through (14). conducted during the dissertation phase ■ b. Redesignating paragraphs (a)(6) (v) Changing the program’s name, CIP of a doctoral program under the code or credential level. through (14) as paragraphs (a)(7) guidance of faculty, and the research is through (15). (12) Its addition of a second or performed only in a facility in the subsequent direct assessment program. United States. ■ c. Adding a new paragraph (a)(6). (13) Its establishment of a written (3) If the educational enterprise ■ d. In paragraph (b), removing the arrangement for an ineligible institution enrolls students both within the United definition of ‘‘Distance education.’’ or organization to provide more than 25 States and outside the United States, ■ percent of a program pursuant to 34 CFR e. Removing the authority citation at and the number of students who would the end of the section. 668.5(c). be eligible to receive title IV, HEA The addition reads as follows: * * * * * program funds attending locations ■ 7. Section 600.52 is amended by outside the United States is at least § 602.3 What definitions apply to this part? revising the definition of ‘‘Foreign twice the number of students enrolled institution’’ and removing the authority within the United States, the locations (a) * * * citation at the end of the section to read outside the United States must apply to (6) Distance education. as follows: participate as one or more foreign * * * * *
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PART 668—STUDENT ASSISTANCE § 668.2 General definitions. of work performed is equivalent to the GENERAL PROVISIONS (a) * * * academic workload of a full-time (7) Direct assessment program. student. ■ 11. The authority citation for part 668 * * * * * (7) For correspondence coursework— continues to read as follows: (25) Religious mission. (i) A full-time course load must be Authority: 20 U.S.C. 1001–1003, 1070g, * * * * * commensurate with the requirements 1085, 1088, 1091, 1092, 1094, 1099c, 1099c– (28) Teach-out. listed in paragraphs (1) through (6) of 1, 1221–3, and 1231a, unless otherwise (29) Teach-out agreement. this definition; and noted. (30) Teach-out plan. (ii) At least one-half of the coursework Section 668.14 also issued under 20 U.S.C. (31) Title IV, HEA program. must be made up of non- 1085, 1088, 1091, 1092, 1094, 1099a–3, (b) * * * correspondence coursework that meets 1099c, and 1141. Full-time student: An enrolled one-half of the institution’s requirement Section 668.41 also issued under 20 U.S.C. student who is carrying a full-time for full-time students. 1092, 1094, 1099c. academic workload, as determined by (8) For a subscription-based program, Section 668.91 also issued under 20 U.S.C. the institution, under a standard 1082, 1094. completion of a full-time course load Section 668.171 also issued under 20 applicable to all students enrolled in a commensurate with the requirements in U.S.C. 1094 and 1099c and section 4 of Pub. particular educational program. The paragraphs (1), (3), and (5) through (7) L. 95–452, 92 Stat. 1101–1109. student’s workload may include any of this definition. combination of courses, work, research, Section 668.172 also issued under 20 * * * * * U.S.C. 1094 and 1099c and section 4 of Pub. or special studies that the institution L. 95–452, 92 Stat. 1101–1109. considers sufficient to classify the Subscription-based program: A Section 668.175 also issued under 20 student as a full-time student. For a standard or nonstandard-term program U.S.C. 1094 and 1099c. term-based program that is not in which the institution charges a student for each term on a subscription ■ subscription-based, the student’s 12. Section 668.1 is amended by basis with the expectation that the revising paragraph (b) introductory text workload may include repeating any coursework previously taken in the student completes a specified number of and removing the authority citation at credit hours (or the equivalent) during the end of the section to read as follows: program; however, the workload may not include more than one repetition of that term. Coursework in a subscription- § 668.1 Scope. a previously passed course. For an based program is not required to begin * * * * * undergraduate student, an institution’s or end within a specific timeframe in (b) As used in this part, an minimum standard must equal or each term. Students in subscription- ‘‘institution,’’ unless otherwise exceed one of the following minimum based programs must complete a specified, includes— requirements, based on the type of cumulative number of credit hours (or program: the equivalent) during or following the * * * * * end of each term before receiving ■ 13. Section 668.2 is amended by: (1) For a program that measures progress in credit hours and uses subsequent disbursements of title IV, ■ a. Designating the undesignated words HEA program funds. An institution and phrases in paragraph (a) as standard terms (semesters, trimesters, or quarters), 12 semester hours or 12 establishes an enrollment status (for paragraphs (a)(1) through (26). example, full-time or half-time) that will ■ quarter hours per academic term. b. Adding periods at the ends of apply to a student throughout the newly designated paragraphs (a)(1) (2) For a program that measures progress in credit hours and does not student’s enrollment in the program, through (26). except that a student may change his or ■ c. Removing newly designated use terms, 24 semester hours or 36 quarter hours over the weeks of her enrollment status no more often paragraph (a)(26). than once per academic year. The ■ d. Further redesignating newly instructional time in the academic year, or the prorated equivalent if the number of credit hours (or the designated paragraphs (a)(7) through equivalent) a student must complete (23), (24), and (25) as paragraphs (a)(8) program is less than one academic year. (3) For a program that measures before receiving subsequent through (24), (26), and (27), disbursements is calculated by— respectively. progress in credit hours and uses ■ e. Adding new paragraphs (a)(7) and nonstandard-terms (terms other than (1) Determining for each term the (25) and paragraphs (a)(28) through (31). semesters, trimesters, or quarters) the number of credit hours (or the ■ f. In paragraph (b): number of credits determined by— equivalent) associated with the ■ i. Removing the definition of (i) Dividing the number of weeks of institution’s minimum standard for the ‘‘Academic Competitiveness Grant instructional time in the term by the student’s enrollment status (for (ACG) Program’’ and the authority number of weeks of instructional time example, full-time, three-quarter time, citation following the definition; in the program’s academic year; and or half-time) for that period ■ ii. Revising the definition of ‘‘Full- (ii) Multiplying the fraction commensurate with paragraph (8) in the time student’’ and removing the determined under paragraph (3)(i) of definition of ‘‘full-time student,’’ authority citation following the this definition by the number of credit adjusted for less than full-time students definition; hours in the program’s academic year. in light of the definitions of ‘‘half-time ■ iii. Adding in alphabetical order the (4) For a program that measures student’’ and ‘‘three-quarter time definition of ‘‘Subscription-based progress in clock hours, 24 clock hours student,’’ and adjusted to at least one program’’; and per week. credit (or the equivalent) for a student ■ iv. In the definition of ‘‘Third-party (5) A series of courses or seminars who is enrolled less than half-time; and servicer’’, revising paragraph (1)(i)(D) that equals 12 semester hours or 12 (2) Adding together the number of and removing the authority citation at quarter hours in a maximum of 18 credit hours (or the equivalent) the end of the definition. weeks. determined under paragraph (1) for each The additions and revisions read as (6) The work portion of a cooperative term in which the student was enrolled follows: education program in which the amount in and attended that program, excluding
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the current and most recently attended degree, certificate, or other recognized not owned or controlled by the same terms. educational credential otherwise individual, partnership, or corporation; * * * * * satisfies the requirements of § 668.8. and Third-party servicer: (1) * * * (2) If the written arrangement is (C) The eligible institution’s (i) * * * between two or more eligible accrediting agency or, if the institution (D) Originating loans; institutions that are owned or controlled is a public postsecondary vocational * * * * * by the same individual, partnership, or educational institution, the State agency corporation, the Secretary considers the listed in the Federal Register in ■ 14. Section 668.3 is amended by educational program to be an eligible accordance with 34 CFR part 603 has revising paragraphs (b)(2) and (3) and program if the educational program specifically determined that the removing the authority citation at the offered by the institution that grants the institution’s arrangement meets the end of the section to read as follows: degree, certificate, or other recognized agency’s standards for executing a § 668.3 Academic year. educational credential otherwise written arrangement with an ineligible * * * * * satisfies the requirements of § 668.8. institution or organization. (b) * * * * * * * * (d) Administration of title IV, HEA (2) A week of instructional time is any (c) Written arrangements between an programs. (1) If an institution enters week in which— eligible institution and an ineligible into a written arrangement as described (i) At least one day of regularly institution or organization. Except as in paragraph (a), (b), or (c) of this scheduled instruction or examinations provided in paragraph (d) of this section, or provides coursework as occurs, or, after the last scheduled day section, if an eligible institution enters provided in paragraph (h)(2) of this of classes for a term or payment period, into a written arrangement with an section, except as provided in paragraph at least one day of study for final institution or organization that is not an (d)(2) of this section, the institution at examinations occurs; or eligible institution under which the which the student is enrolled as a (ii)(A) In a program offered using ineligible institution or organization regular student must determine the asynchronous coursework through provides part of the educational student’s eligibility for the title IV, HEA distance education or correspondence program of students enrolled in the program funds, and must calculate and courses, the institution makes available eligible institution, the Secretary disburse those funds to that student. the instructional materials, other considers that educational program to * * * * * resources, and instructor support be an eligible program if— (f) Workforce responsiveness. Nothing necessary for academic engagement and (1) The ineligible institution or in this or any other section in this part completion of course objectives; and organization has not— prohibits an institution utilizing written (B) In a program using asynchronous (i) Had its eligibility to participate in arrangements from aligning or coursework through distance education, the title IV, HEA programs terminated modifying its curriculum or academic the institution expects enrolled students by the Secretary; requirements in order to meet the to perform educational activities (ii) Voluntarily withdrawn from recommendations or requirements of demonstrating academic engagement participation in the title IV, HEA industry advisory boards that include during the week; and programs under a termination, show- employers who hire program graduates, (3) Instructional time does not include cause, suspension, or similar type widely recognized industry standards any scheduled breaks and activities not proceeding initiated by the institution’s and organizations, or industry- included in the definition of ‘‘academic State licensing agency, accrediting recognized credentialing bodies, engagement’’ in 34 CFR 600.2, or agency, or guarantor, or by the including making governance or periods of orientation or counseling. Secretary; decision-making changes as an * * * * * (iii) Had its certification to participate alternative to allowing or requiring ■ 15. Section 668.5 is amended by: in the title IV, HEA programs revoked faculty control or approval or ■ a. Revising paragraphs (a), (c), and by the Secretary; integrating industry-recognized (d)(1). (iv) Had its application for credentials into existing degree ■ b. Adding paragraphs (f), (g), and (h). recertification to participate in the title programs. ■ c. Removing the authority citation at IV, HEA programs denied by the (g) Calculation of percentage of the end of the section. Secretary; or program. When determining the The revisions and additions read as (v) Had its application for certification percentage of the program that is follows: to participate in the title IV, HEA provided by an ineligible institution or programs denied by the Secretary; organization under paragraph (c) of this § 668.5 Written arrangements to provide (2) The educational program offered section, the institution divides the educational programs. by the institution that grants the degree, number of semester, trimester, or (a) Written arrangements between certificate, or other recognized quarter credit hours, clock hours, or the eligible institutions. (1) Except as educational credential otherwise equivalent that are provided by the provided in paragraph (a)(2) of this satisfies the requirements of § 668.8; and ineligible organization or organizations section, if an eligible institution enters (3)(i) The ineligible institution or by the total number of semester, into a written arrangement with another organization provides 25 percent or less trimester, or quarter credit hours, clock eligible institution, or with a consortium of the educational program, including in hours, or the equivalent required for of eligible institutions, under which the accordance with 34 CFR 602.22(b)(4); or completion of the program. A course is other eligible institution or consortium (ii)(A) The ineligible institution or provided by an ineligible institution or provides part of the educational organization provides more than 25 organization if the organization with program to students enrolled in the first percent but less than 50 percent of the which the institution has a written institution, the Secretary considers that educational program, in accordance arrangement has authority over the educational program to be an eligible with 34 CFR 602.22(a)(1)(ii)(J); design, administration, or instruction in program if the educational program (B) The eligible institution and the the course, including, but not limited offered by the institution that grants the ineligible institution or organization are to—
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(1) Establishing the requirements for (2) A quarter hour must include at institution’s accreditation or its State successful completion of the course; least 20 clock hours of instruction. approval agency. (2) Delivering instruction in the * * * * * (2) The institution’s direct assessment course; or 17. Section 668.10 is revised to read application must provide information (3) Assessing student learning. as follows: satisfactory to the Secretary that (h) Non-applicability to other includes— interactions with outside entities. § 668.10 Direct assessment programs. (i) A description of the educational Written arrangements are not necessary (a)(1) A direct assessment program is program, including the educational for, and the limitations in this section a program that, in lieu of credit or clock credential offered (degree level or do not apply to— hours as the measure of student certificate) and the field of study; (1) Acceptance by the institution of learning, utilizes direct assessment of (ii) A description of how the direct transfer credits or use of prior learning student learning, or recognizes the assessment program is structured, assessment or other non-traditional direct assessment of student learning by including information about how and methods of providing academic credit; others. The assessment must be when the institution determines on an or consistent with the accreditation of the individual basis what each student (2) The internship or externship institution or program utilizing the enrolled in the program needs to learn portion of a program if the internship or results of the assessment. and how the institution excludes from externship is governed by accrediting (2) Direct assessment of student consideration of a student’s eligibility agency standards, or, in the case of an learning means a measure of a student’s for title IV, HEA program funds any eligible foreign institution, the knowledge, skills, and abilities designed credits or competencies earned on the standards of an outside oversight entity, to provide evidence of the student’s basis of prior learning; such as an accrediting agency or proficiency in the relevant subject area. (iii) A description of how learning is government entity, that require the (3) An institution must establish a assessed and how the institution assists oversight and supervision of the methodology to reasonably equate each students in gaining the knowledge institution, where the institution is module in the direct assessment needed to pass the assessments; responsible for the internship or program to either credit hours or clock (iv) The number of semester, externship and students are monitored hours. This methodology must be trimester, or quarter credit hours, or by qualified institutional personnel. consistent with the requirements of the clock hours, that are equivalent to the institution’s accrediting agency or State amount of student learning being ■ 16. Section 668.8 is amended by approval agency. directly assessed for the certificate or revising paragraphs (e)(1)(iii), (k)(2), and (4) All regulatory requirements in this degree; (l) and removing the authority citation chapter that refer to credit or clock (v) The methodology the institution at the end of the section to read as hours as a measurement apply to direct uses to determine the number of credit follows: assessment programs according to or clock hours to which the program or § 668.8 Eligible program. whether they use credit or clock hour programs are equivalent; and equivalencies, respectively. (vi) Documentation from the * * * * * (5) A direct assessment program that institution’s accrediting agency or State (e) * * * (1) * * * is not consistent with the requirements approval agency indicating that the (iii) The institution can demonstrate of the institution’s accrediting agency or agency has evaluated the institution’s reasonable program length, in State approval agency is not an eligible offering of direct assessment program(s) accordance with § 668.14(b)(26); and program as provided under § 668.8. In and has included the program(s) in the * * * * * order for any direct assessment program institution’s grant of accreditation and (k) * * * to qualify as an eligible program, the approval documentation from the (2) Each course within the program is accrediting agency must have— accrediting agency or State approval acceptable for full credit toward (i) Evaluated the program based on agency indicating agreement with the completion of an eligible program the agency’s accreditation standards and institutions methodology for offered by the institution that provides criteria, and included it in the determining the direct assessment an associate degree, bachelor’s degree, institution’s grant of accreditation or program’s equivalence in terms of credit professional degree, or equivalent preaccreditation; and or clock hours. degree as determined by the Secretary, (ii) Reviewed and approved the (vii) Notwithstanding paragraphs (a) provided that— institution’s claim of each direct and (b) of this section, no program (i) The eligible program requires at assessment program’s equivalence in offered by a foreign institution that least two academic years of study; and terms of credit or clock hours. involves direct assessment will be (ii) The institution can demonstrate (b)(1) An institution that wishes to considered to be an eligible program that least one student graduated from offer a direct assessment program must under § 668.8. the program during the current award apply to the Secretary to have its direct (c) A direct assessment program may year or the two preceding award years. assessment program or programs use learning resources (e.g., courses or (l) Formula. For purposes of determined to be eligible programs for portions of courses) that are provided by determining whether a program title IV, HEA program purposes. entities other than the institution described in paragraph (h) of this Following the Secretary’s initial providing the direct assessment program section satisfies the requirements approval of a direct assessment without regard to the limitations on contained in paragraph (c)(3) or (d) of program, additional direct assessment contracting for part of an educational this section, and the number of credit programs at an equivalent or lower program in § 668.5(c)(3). hours in that educational program for academic level may be determined to be (d) Title IV, HEA program funds may the purposes of the title IV, HEA eligible without further approvals from be used to support instruction provided, programs— the Secretary except as required by 34 or overseen, by the institution, except (1) A semester or trimester hour must CFR 600.10(c)(1)(iii), 600.20(c)(1), or for the portion of the program that the include at least 30 clock hours of 600.21(a), as applicable, if such student is awarded based on prior instruction; and programs are consistent with the learning.
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(e) Unless an institution has received (d) * * * recognized occupation for which the initial approval from the Secretary to (3) * * * program prepares the student as offer direct assessment programs, and (iii) Documents filed by electronic established in a State adjacent to the the institution’s offering of direct transmission must be transmitted to the State in which the institution is located; assessment coursework is consistent Secretary in accordance with and with the institution’s accreditation and instructions provided by the Secretary (ii) Establish the need for the training State authorization, if applicable, title in the notice of revocation. for the student to obtain employment in IV, HEA program funds may not be used * * * * * the recognized occupation for which the for— (5) The mailing date of a notice of program prepares the student; (1) The course of study described in revocation or a request for * * * * * § 668.32(a)(1)(ii) and (iii) and reconsideration of a revocation is the (31) The institution will submit a (a)(2)(i)(B), if offered using direct date evidenced on the original receipt of teach-out plan to its accrediting agency assessment; or mailing from the U.S. Postal Service or in compliance with 34 CFR 602.24(c) (2) Remedial coursework described in another service that provides delivery and the standards of the institution’s § 668.20, if offered using direct confirmation for that document. accrediting agency. The institution will assessment. * * * * * update its teach-out plan upon the (f) Student progress in a direct ■ 19. Section 668.14 is amended by assessment program may be measured occurrence of any of the following revising paragraphs (b)(10), (26), and using a combination of— events: (1) Credit hours and credit hour (31) introductory text to read as follows: * * * * * equivalencies; or § 668.14 Program participation agreement. ■ 20. Section 668.22 is amended by: (2) Clock hours and clock hour * * * * * ■ a. Removing the word ‘‘or’’ at the end equivalencies. (b) * * * of paragraph (a)(2)(i)(B). ■ 18. Section 668.13 is amended by: (10) In the case of an institution that ■ b. Revising paragraph (a)(2)(i)(C). ■ a. Redesignating paragraph (a)(1) as advertises job placement rates as a ■ c. Adding paragraph (a)(2)(i)(D). paragraph (a)(1)(i). means of attracting students to enroll in ■ d. Revising paragraph (a)(2)(ii). ■ b. Adding paragraph (a)(1)(ii). the institution, the institution will make ■ e. Removing the word ‘‘nonterm’’ and ■ c. Adding paragraph (b)(3). adding in its place the word ‘‘non-term’’ ■ available to prospective students, at or d. Removing the word ‘‘or’’ at the end before the time that those students in paragraph (a)(2)(iii)(B). of paragraph (c)(1)(i)(D). ■ f. Revising paragraph (a)(3). ■ apply for enrollment— e. Removing the period and adding in (i) The most recent available data ■ g. Removing the citation its place ‘‘; or’’ at the end of paragraph concerning employment statistics, ‘‘§ 668.164(g)’’ at the end of paragraph (c)(1)(i)(E). graduation statistics, and any other (a)(5) and adding in its place the citation ■ f. Adding paragraph (c)(1)(i)(F). ■ information necessary to substantiate ‘‘§ 668.164(i)’’. g. Removing the word ‘‘facsimile’’ and ■ adding in its place the word the truthfulness of the advertisements; h. Revising paragraphs (a)(6)(ii)(A), ‘‘electronic’’ in paragraphs (d)(3)(i) and and (d)(1)(vii), and (i). (ii) Relevant State licensing ■ (d)(3)(ii)(C). i. Removing the citation ■ h. Revising paragraph (d)(3)(iii). requirements of the State in which the ‘‘§ 668.164(g)’’ in paragraph (l)(1) and ■ i. Removing paragraph (d)(3)(iv). institution is located for any job for adding in its place the citation ■ j. Revising paragraph (d)(5). which the course of instruction is ‘‘§ 668.164(j)’’. ■ k. Removing the authority citation at designed to prepare such prospective ■ j. Removing the citation the end of the section. students, as provided in ‘‘§ 668.164(g)(2)’’ in paragraph (l)(4) and The additions and revisions read as § 668.43(a)(5)(v); adding in its place the citation follows: * * * * * ‘‘§ 668.164(j)(2)’’. (26) If an educational program offered ■ k. Revising paragraphs (l)(6) and (7). § 668.13 Certification procedures. by the institution is required to prepare ■ l. Adding paragraph (l)(9). (a) * * * (1)(i) * * * a student for gainful employment in a ■ m. Removing the authority citation at (ii) On application from the recognized occupation, the institution the end of the section. institution, the Secretary certifies a must— The additions and revisions read as location of an institution that meets the (i) Demonstrate a reasonable follows: requirements of § 668.13(a)(1)(i) as a relationship between the length of the branch if it satisfies the definition of program and entry level requirements § 668.22 Treatment of title IV funds when ‘‘branch’’ in 34 CFR 600.2. for the recognized occupation for which a student withdraws. * * * * * the program prepares the student. The (a) * * * (b) * * * Secretary considers the relationship to (2)(i) * * * (3) In the event that the Secretary does be reasonable if the number of clock (C) For a student in a standard or not make a determination to grant or hours provided in the program does not nonstandard-term program, excluding a deny certification within 12 months of exceed the greater of— subscription-based program, the student the expiration of its current period of (A) One hundred and fifty percent of is not scheduled to begin another course participation, the institution will the minimum number of clock hours within a payment period or period of automatically be granted renewal of required for training in the recognized enrollment for more than 45 calendar certification, which may be provisional. occupation for which the program days after the end of the module the (c) * * * (1)(i) * * * prepares the student, as established by student ceased attending, unless the (F) The institution is a participating the State in which the institution is student is on approved leave of absence, institution that has been provisionally located, if the State has established such as defined in paragraph (d) of this recertified under the automatic a requirement, or as established by any section; or recertification requirement in paragraph Federal agency; or (D) For a student in a non-term (b)(3) of this section. (B) The minimum number of clock program or a subscription-based * * * * * hours required for training in the program, the student is unable to
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resume attendance within a payment attendance, and that date is no later (2) Loan funds that make up the post- period or period of enrollment for more than 60 calendar days after the student withdrawal disbursement only after than 60 calendar days after ceasing ceased attendance. obtaining confirmation from the attendance, unless the student is on an (B) If an institution has obtained the student, or parent in the case of a parent approved leave of absence, as defined in written confirmation of future PLUS loan, that they still wish to have paragraph (d) of this section. attendance in accordance with the loan funds disbursed in accordance (ii)(A) Notwithstanding paragraph paragraph (a)(2)(ii)(A) of this section— with paragraph (a)(6)(iii) of this section. (a)(2)(i) of this section— (1) A student may change the date of * * * * * (1) A student who completes all the return that begins later in the same (d) * * * (1) * * * requirements for graduation from his or payment period or period of enrollment, (vii) Except for a clock hour or non- her program before completing the days provided that the student does so in term credit hour program, or a or hours in the period that he or she was writing prior to the return date that he subscription-based program, upon the scheduled to complete is not considered or she had previously confirmed; student’s return from the leave of to have withdrawn; (2) For standard and nonstandard- absence, the student is permitted to (2) In a program offered in modules, term programs, excluding subscription- complete the coursework he or she a student is not considered to have based programs the later module that he began prior to the leave of absence; and withdrawn if the student successfully or she will attend begins no later than * * * * * completes— 45 calendar days after the end of the (i) One module that includes 49 (i) Order of return of title IV funds— module the student ceased attending; (1) Loans. Unearned funds returned by percent or more of the number of days and in the payment period, excluding the institution or the student, as (3) For non-term and subscription- appropriate, in accordance with scheduled breaks of five or more based programs, the student’s program consecutive days and all days between paragraph (g) or (h) of this section permits the student to resume respectively, must be credited to modules; attendance no later than 60 calendar (ii) A combination of modules that outstanding balances on title IV loans days after the student ceased made to the student or on behalf of the when combined contain 49 percent or attendance. more of the number of days in the student for the payment period or (C) If an institution obtains written period of enrollment for which a return payment period, excluding scheduled confirmation of future attendance in breaks of five or more consecutive days of funds is required. Those funds must accordance with paragraph (a)(2)(ii)(A) be credited to outstanding balances for and all days between modules; or of this section and, if applicable, (iii) Coursework equal to or greater the payment period or period of paragraph (a)(2)(ii)(B) of this section, enrollment for which a return of funds than the coursework required for the but the student does not return as institution’s definition of a half-time is required in the following order: scheduled— (i) Unsubsidized Federal Direct student under § 668.2 for the payment (1) The student is considered to have period; Stafford loans. withdrawn from the payment period or (ii) Subsidized Federal Direct Stafford (3) For a payment period or period of period of enrollment; and enrollment in which courses in the loans. (2) The student’s withdrawal date and (iii) Federal Direct PLUS received on program are offered in modules— the total number of calendar days in the (i) A student is not considered to have behalf of the student. payment period or period of enrollment (2) Remaining funds. If unearned withdrawn if the institution obtains would be the withdrawal date and total written confirmation from the student at funds remain to be returned after number of calendar days that would repayment of all outstanding loan the time that would have been a have applied if the student had not withdrawal of the date that he or she amounts, the remaining excess must be provided written confirmation of a credited to any amount awarded for the will attend a module that begins later in future date of attendance in accordance the same payment period or period of payment period or period of enrollment with paragraph (a)(2)(ii)(A) of this for which a return of funds is required enrollment; and section. (ii) For standard and nonstandard- in the following order: term programs, excluding subscription- * * * * * (i) Federal Pell Grants. based programs, that module begins no (3) For purposes of this section, ‘‘title (ii) Iraq and Afghanistan Service later than 45 calendar days after the end IV grant or loan assistance’’ includes Grants. of the module the student ceased only assistance from the Direct Loan, (iii) FSEOG Program aid. attending; Federal Pell Grant, Iraq and Afghanistan (iv) TEACH Grants. (4) For a subscription-based program, Service Grant, TEACH Grant, and * * * * * a student is not considered to have FSEOG programs, not including the (l) * * * withdrawn if the institution obtains non-Federal share of FSEOG awards if (6) A program is ‘‘offered in modules’’ written confirmation from the student at an institution meets its FSEOG if the program uses a standard term or the time that would have been a matching share by the individual nonstandard-term academic calendar, is withdrawal of the date that he or she recipient method or the aggregate not a subscription-based program, and a will resume attendance, and that date method. course or courses in the program do not occurs within the same payment period * * * * * span the entire length of the payment or period of enrollment and is no later (6) * * * period or period of enrollment. than 60 calendar days after the student (ii)(A) If outstanding charges exist on (7)(i) ‘‘Academic attendance’’ and ceased attendance; and the student’s account, the institution ‘‘attendance at an academically-related (5) For a non-term program, a student may credit the student’s account up to activity’’ must include academic is not considered to have withdrawn if the amount of outstanding charges in engagement as defined under 34 CFR the institution obtains written accordance with § 668.164(c) with all or 600.2. confirmation from the student at the a portion of any— (ii) A determination of ‘‘academic time that would have been a withdrawal (1) Grant funds that make up the post- attendance’’ or ‘‘attendance at an of the date that he or she will resume withdrawal disbursement; and academically-related activity’’ must be
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made by the institution; a student’s Department of and’’ after the phrase ■ b. Removing the period and adding in certification of attendance that is not ‘‘establishes rules governing the’’ in the its place ‘‘; or’’ in paragraph (i)(2). supported by institutional first sentence of paragraph (a) and ■ c. Adding paragraph (i)(3). documentation is not acceptable. removing the authority citation at the The addition reads as follows: * * * * * end of the section. § 668.171 General. (9) A student in a program offered in ■ 24. Section 668.113 is amended by: modules is scheduled to complete the ■ a. Removing the word ‘‘shall’’ and * * * * * days in a module if the student’s adding in its place the word ‘‘must’’ in (i) * * * coursework in that module was used to both instances it is used in paragraph (c) (3) Deny the institution’s application determine the amount of the student’s introductory text. for certification or recertification to eligibility for title IV, HEA funds for the ■ b. Redesignating paragraphs (d)(1) and participate in the title IV, HEA payment period or period of enrollment. (2) as paragraphs (d)(2) and (3). programs. * * * * * ■ c. Adding a new paragraph (d)(1). ■ 27. Section 668.174 is amended by: ■ d. Removing the authority citation at ■ a. Revising paragraph (b)(1)(i) § 668.28 [Amended] the end of the section. introductory text. ■ 21. Section 668.28 is amended by The addition reads as follows: ■ b. Adding the phrase ‘‘ownership or’’ removing and reserving paragraph (b) § 668.113 Request for review. after the word ‘‘substantial’’ and and removing the authority citation at removing the word ‘‘or’’ at the end of * * * * * the end of the section. paragraph (b)(1)(i)(A). (d)(1) If the final audit determination ■ ■ c. Redesignating paragraph (b)(1)(i)(B) 22. Section 668.34 is amended by: or final program review determination ■ as paragraph (b)(1)(i)(C). a. Revising paragraph (a)(5). in paragraph (a) of this section results ■ ■ d. Adding a new paragraph b. Revising paragraph (1) in the from the institution’s classification of a definition for ‘‘Maximum timeframe’’ in (b)(1)(i)(B). course or program as distance ■ paragraph (b). education, or the institution’s e. Adding ‘‘entity,’’ after the phrase ■ c. Removing the authority citation at assignment of credit hours, the ‘‘That person,’’ in paragraph (b)(1)(ii). ■ the end of the section. Secretary relies upon the requirements f. Adding the phrase ‘‘or entity’’ after The revisions read as follows: of the institution’s accrediting agency or the word ‘‘person’’ in paragraphs State approval agency regarding (b)(2)(i) and (ii). § 668.34 Satisfactory academic progress. ■ qualifications for instruction and g. Adding ‘‘entity,’’ after the phrase (a) * * * ‘‘owes the liability by that’’ in paragraph (5) The policy specifies— whether the amount of work associated with the institution’s credit hours is (b)(2)(ii)(A). (i) For all programs, the maximum ■ h. Adding ‘‘entity,’’ after the phrase timeframe as defined in paragraph (b) of consistent with commonly accepted practice in postsecondary education, in ‘‘owes the liability that the’’ in this section; and paragraph (b)(2)(ii)(B). (ii) For a credit hour program using applying the definitions of ‘‘distance ■ i. Adding the phrase ‘‘or entity’’ after standard or nonstandard terms that is education’’ and ‘‘credit hour’’ in 34 CFR the phrase ‘‘The person’’ in paragraphs not a subscription-based program, the 600.2. (b)(2)(iv)(A) and (B). pace, measured at each evaluation, at * * * * * ■ j. Adding the phrase ‘‘or entity’’ after which a student must progress through ■ 25. Section 668.164 is amended by: both uses of the word ‘‘person’’ in his or her educational program to ensure ■ a. Adding the phrase ‘‘that is not a paragraph (c)(3) introductory text. that the student will complete the subscription-based program’’ after the ■ k. Removing the authority citation at program within the maximum phrase ‘‘equal in length’’ in paragraphs the end of the section. timeframe, calculated by either dividing (i)(1)(i) and (ii). The revisions and additions read as the cumulative number of hours the ■ b. Removing the word ‘‘or’’ at the end follows: student has successfully completed by of paragraph (i)(1)(i). the cumulative number of hours the ■ c. Removing the period and adding in § 668.174 Past performance. student has attempted or by determining its place ‘‘; or’’ in paragraph (i)(1)(ii)(B). * * * * * ■ the number of hours that the student d. Adding paragraph (i)(1)(iii). (b) Past performance of persons or should have completed by the The addition reads as follows: entities affiliated with an institution. evaluation point in order to complete § 668.164 Disbursing funds. (1)(i) Except as provided in paragraph the program within the maximum (b)(2) of this section, an institution is timeframe. In making this calculation, * * * * * (i)(1) * * * not financially responsible if a person or the institution is not required to include entity who exercises substantial remedial courses; (iii) If the student is enrolled in a subscription-based program, the later ownership or control over the * * * * * institution, as described under 34 CFR (b) * * * of— (A) Ten days before the first day of 600.31, or any member or members of Maximum timeframe. *** that person’s family alone or together— (1) For an undergraduate program classes of a payment period; or * * * * * measured in credit hours, a period that (B) The date the student completed (B) Exercised substantial ownership is no longer than 150 percent of the the cumulative number of credit hours or control over another institution that published length of the educational associated with the student’s enrollment closed without a viable teach-out plan program, as measured in credit hours, or status in all prior terms that the student or agreement approved by the expressed in calendar time; attended under the definition of a subscription-based program in § 668.2. institution’s accrediting agency and * * * * * * * * * * faithfully executed by the institution; or § 668.111 [Amended] ■ 26. Section 668.171 is amended by: * * * * * 23. Section 668.111 is amended by ■ a. Removing the word ‘‘or’’ at the end [FR Doc. 2020–18636 Filed 9–1–20; 8:45 am] adding the phrase ‘‘issuance by the of paragraph (i)(1). BILLING CODE 4000–01–P
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Part IV
Department of Health and Human Services
Centers for Medicare & Medicaid Services 42 CFR Parts 410, 413, 414, et al. Medicare and Medicaid Programs, Clinical Laboratory Improvement Amendments (CLIA), and Patient Protection and Affordable Care Act; Additional Policy and Regulatory Revisions in Response to the COVID–19 Public Health Emergency; Final Rule
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DEPARTMENT OF HEALTH AND ADDRESSES: In commenting, please refer Elizabeth Goldstein, (410) 786–6665, HUMAN SERVICES to file code CMS–3401–IFC. Comments, or [email protected], including mass comment submissions, for the modifications to the calculation Centers for Medicare & Medicaid must be submitted in one of the of the 2022 Part C and D Star Ratings. Services following three ways (please choose Molly MacHarris, (410) 786–4461, for only one of the ways listed): issues related to the Merit-based 42 CFR Parts 410, 413, 414, 422, 423, 1. Electronically. You may submit Incentive Payment System (MIPS). 482, 483, 485, 488 and 493 electronic comments on this regulation Kianna Banks, (410) 786–3498, for the LTC resident and staff COVID–19 testing [CMS–3401–IFC] to http://www.regulations.gov. Follow the ‘‘Submit a comment’’ instructions. requirements. RIN 0938–AU33 2. By regular mail. You may mail SUPPLEMENTARY INFORMATION: Inspection written comments to the following of Public Comments: All comments Medicare and Medicaid Programs, address ONLY: Centers for Medicare & received before the close of the Clinical Laboratory Improvement Medicaid Services, Department of comment period are available for Amendments (CLIA), and Patient Health and Human Services, Attention: viewing by the public, including any Protection and Affordable Care Act; CMS–3401–IFC, P.O. Box 8016, personally identifiable or confidential Additional Policy and Regulatory Baltimore, MD 21244–8016. business information that is included in Revisions in Response to the COVID– Please allow sufficient time for mailed a comment. We post all comments 19 Public Health Emergency comments to be received before the received before the close of the AGENCY: Centers for Medicare & close of the comment period. comment period on the following Medicaid Services (CMS), HHS. 3. By express or overnight mail. You website as soon as possible after they may send written comments to the ACTION: have been received: http:// Interim final rule with comment following address ONLY: Centers for period. regulations.gov. Follow the search Medicare & Medicaid Services, instructions on that website to view SUMMARY: This interim final rule with Department of Health and Human public comments. Services, Attention: CMS–3401–IFC, comment period (IFC) revises Table of Contents regulations to strengthen CMS’ ability to Mail Stop C4–26–05, 7500 Security enforce compliance with Medicare and Boulevard, Baltimore, MD 21244–1850. I. Background Medicaid long-term care (LTC) facility For information on viewing public II. Provisions of the Interim Final Rule with requirements for reporting information comments, see the beginning of the Comment Period (IFC) SUPPLEMENTARY INFORMATION section. A. New Enforcement Requirement for LTC related to coronavirus disease 2019 Facilities (COVID–19), establishes a new FOR FURTHER INFORMATION CONTACT: B. Condition of Participation (CoP) requirement for LTC facilities for Debra Lyons, (410) 786–6780, for Requirements for Hospitals and CAHs to COVID–19 testing of facility residents information on the LTC enforcement Report COVID–19 Data As Specified by and staff, establishes new requirements regulation at 42 CFR part 488. the Secretary During the PHE for in the hospital and critical access CAPT Scott Cooper, USPHS, (410) COVID–19 hospital (CAH) Conditions of 786–9465, for the hospital and CAH C. Requirements for Laboratories to Report SARS–CoV–2 Test Results During the Participation (CoPs) for tracking the COVID–19 reporting requirements. Sarah Bennett, (410) 786–3354, for PHE for COVID–19 incidence and impact of COVID–19 to D. Quality Reporting: Updates to the assist public health officials in detecting laboratory reporting information. Julia Venanzi, (410) 786–1471, for Extraordinary Circumstances Exceptions outbreaks and saving lives, and (ECE) Granted for Four Value-Based provisions related to the Hospital Value- establishes requirements for all CLIA Purchasing Programs in Response to the Based Purchasing Program. laboratories to report COVID–19 test PHE for COVID–19, and Update to the Erin Patton, (410) 786–2437, for results to the Secretary of Health and Performance Period for the FY 2022 SNF provisions related to the Hospital Human Services (Secretary) in such VBP Program Readmissions Reduction Program. E. NCD Procedural Volumes for Facilities form and manner, and at such timing Lang Le, (410) 786–5693, for and Practitioners to Maintain Medicare and frequency, as the Secretary may provisions related to the Skilled- Coverage prescribe during the Public Health Nursing Facility Value-Based F. Limits on COVID–19 and Related Emergency (PHE). Purchasing Program and the Hospital- Testing without an Order and Expansion of Testing Order Authority DATES: Effective date: These regulations Acquired Condition Reduction Program. are effective on September 2, 2020. G. Recognizing Temporary Premium Delia Houseal, (410) 786–2724, for Credits as Premium Reductions Applicability date: These regulations provisions related to the End-Stage H. Addressing the Impact of COVID–19 on are applicable for the duration of the Renal Disease Quality Incentive Part C and Part D Quality Rating Systems PHE for COVID–19. Section 488.447 is Program. I. Merit-Based Incentive Payment System applicable 1 year beyond the expiration Kimberly Long, (410) 786–5702, or (MIPS) Updates of the PHE for COVID–19. The NCDsPublicHealthEmergency@ J. Requirement for Long-Term Care (LTC) amendment to § 414.1305 and the cms.hhs.gov, for provisions related to Facilities to Test Facility Residents and expansion of telehealth codes used in NCD Procedural Volumes for Facilities Staff for COVID–19 beneficiary assignment for the CMS Web III. Waiver of Proposed Rulemaking and Practitioners to Maintain Medicare IV. Collection of Information Requirements Interface and CAHPS for MIPS survey Coverage. V. Response to Comments (found in section II.I. of the preamble) Jennifer Dupee, (410) 786–6537, for VI. Regulatory Impact Analysis are applicable beginning January 1, provisions related to order requirements Regulations Text 2020. for COVID–19 and related testing. Comment date: To be assured Jaya Ghildiyal, (301) 492–5149, for Executive Summary consideration, comments must be PPACA risk adjustment requirements. This interim final rule with comment received at one of the addresses Christina Whitefield, (301) 492–4172, period (IFC) revises regulations to provided below, no later than 5 p.m. on for PPACA medical loss ratio strengthen CMS’ ability to enforce November 2, 2020. requirements. compliance with Medicare and
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Medicaid long-term care (LTC) facility purposes of the risk adjustment and • Older adults, with risk increasing requirements for reporting information medical loss ratio programs, modifies by age. related to coronavirus disease 2019 the application of the extreme and • People of any age who have certain (COVID–19), establishes a new uncontrollable circumstances policy for underlying medical conditions such as: requirement for LTC facilities for calculation of the 2022 Part C and D Star ++ Cancer. COVID–19 testing of facility residents Ratings to address the effects of the PHE ++ Chronic kidney disease. and staff, establishes new requirements for COVID–19, includes in the Merit- ++ Obesity. in the hospital and critical access Based Incentive Payment System (MIPS) ++ Serious heart conditions (for hospital (CAH) Conditions of beneficiary assignment methodology for example, heart failure, coronary artery Participation (CoPs) for tracking the the CMS Web Interface and Consumer disease, or cardiomyopathies). incidence and impact of COVID–19 to Assessment of Healthcare Providers and ++ Sickle cell disease. assist public health officials in detecting Systems (CAHPS) for MIPS survey for ++ Diabetes mellitus. outbreaks and saving lives, and performance year 2020 and any ++ Hypertension. establishes requirements for all CLIA subsequent performance year that starts ++ Chronic obstructive pulmonary laboratories to report COVID–19 test during the PHE for COVID–19 certain disease (COPD). results to the Secretary of Health and Current Procedural Terminology (CPT) ++ Neurologic/Neurodevelopmental 2 Human Services (Secretary) in such and Healthcare Common Procedure disability. Coding System (HCPCS) code additions, ++ Immunocompromised state from form and manner, and at such timing _ _ and frequency, as the Secretary may and modifies IA ERP 3. solid organ transplant. • Residents of LTC facilities, prescribe during the Public Health I. Background Emergency (PHE). This IFC updates the including nursing homes, Intermediate The United States is responding to an Care Facilities for Individuals with extraordinary circumstances exceptions outbreak of respiratory disease caused granted for the ESRD Quality Incentive Intellectual and Developmental by coronavirus disease that was first Disabilities (ICF/IIDs), inpatient Program (QIP), Hospital Acquired detected in China and which has now Condition (HAC) Reduction Program, psychiatric and substance abuse been detected in more than 190 treatment facilities including Hospital Readmissions Reduction countries internationally, and all 50 Program (HRRP), and Hospital VBP institutions for mental disorders (IMD) States, the District of Columbia, and the and Psychiatric Residential Treatment Program for the PHE for COVID–19, and U.S. territories. The virus has been revises the FY 2022 performance period Facilities (PRTF), assisted living named ‘‘severe acute respiratory facilities, group homes for individuals under the Skilled Nursing Facility (SNF) syndrome coronavirus 2’’ (SARS–CoV– VBP as a result of the PHE for COVID– with developmental disabilities and 2’’) and the disease it causes has been board-and-care facilities. 19. This IFC also announces that with named ‘‘coronavirus disease 2019’’ respect to the Hospital VBP Program, The CDC has developed guidance to (‘‘COVID–19’’). help in the risk assessment and HRRP, HAC Reduction Program, SNF On January 30, 2020, the International VBP Program and the ESRD QIP, if, as management of people with potential Health Regulations Emergency exposures to COVID–19, including a result of a decision to grant a new Committee of the World Health nationwide ECE without request or a recommending that healthcare Organization (WHO) declared the professionals make every effort to decision to grant a substantial number outbreak a ‘‘Public Health Emergency of of individual ECE requests, we do not interview a person under investigation International Concern’’. On January 31, for infection by telephone, text have enough data to reliably compare 2020, pursuant to section 319 of the national performance on measures, we monitoring system, or video Public Health Service Act (PHSA) (42 conference.3 may propose to not score facilities, U.S.C. 247d), the Health and Human hospitals, or SNFs based on such As the healthcare community Services Secretary (the Secretary) establishes and implements limited data or make the associated determined that a public health payment adjustments for the affected recommended infection prevention and emergency (PHE) exists for the United control practices, regulatory agencies program year. In addition, this IFC States to aid the nation’s healthcare announces that CMS will not enforce operating under appropriate waiver community in responding to COVID–19 authority granted by the PHE for certain procedural volume requirements (hereafter referred to as the PHE for for four national coverage COVID–19 are also working to revise COVID–19). On March 11, 2020, the and implement regulations that support determinations, revises the previous WHO publicly declared COVID–19 a policy outlined in the May 8th COVID– these healthcare community infection pandemic. On March 13, 2020, prevention and treatment practices. 19 IFC by establishing that one single President Donald J. Trump (the COVID–19 diagnostic test and one of Based on the current and projected President) declared the COVID–19 increases in the COVID–19 incidence each other applicable related tests pandemic a national emergency. without an order from a treating rates in the US, observed fatalities in the Effective July 25, 2020, the Secretary older adult population, and the impact physician or other practitioner is renewed the January 31, 2020 reasonable and necessary, establishes a on health workers who are at increased determination that was previously risk due to treating special populations, policy whereby the orders of renewed on April 21, 2020, that a PHE pharmacists and other practitioners that it is CMS’ belief that certain regulations for COVID–19 exists and has existed should be reviewed and revised as are allowed to order laboratory tests in since January 27, 2020. accordance with state scope of practice appropriate to offer additional The Centers for Disease Control and flexibilities in furnishing and providing and other pertinent laws can fulfill the Prevention (CDC) has reported that requirements related to orders for services to combat the PHE for COVID– some people are at higher risk of severe 19 and to address and minimize the covered COVID–19 and related tests for illness from COVID–19.1 These higher- Medicare patients, specifies how risk categories include: 2 https://www.cdc.gov/mmwr/volumes/69/wr/ temporary premium credits for mm6924e2.htm?s_cid=mm6924e2_w. individual and small group health 1 https://www.cdc.gov/mmwr/volumes/69/wr/ 3 https://www.cdc.gov/coronavirus/2019-ncov/ insurance coverage are treated for mm6915e3.htm. cases-updates/summary.html.
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unique impact of the PHE for COVID– (CLIA) (Pub. L. 100–578) (codified as benefit year risk adjustment data 19 on other regulatory provisions. We amended at 42 U.S.C. 263a), requiring submissions, issuers of risk adjustment addressed some of these regulations in any laboratory that examines human covered plans that provide temporary two previous interim final rules with specimens for the purpose of providing premium credits must report to their comment period (IFCs). The ‘‘Medicare information for the diagnosis, distributed data environments (EDGE and Medicaid Programs; Policy and prevention, or treatment of any disease servers) the adjusted plan premiums Regulatory Revisions in Response to the or impairment of, or the assessment of that reflect actual premiums billed to COVID–19 Public Health Emergency’’ health, of human beings to be certified enrollees, taking the premium credits IFC appeared in the April 6, 2020 by the Secretary for the categories of into account as a reduction in Federal Register (85 FR 19230) with an examinations or procedures performed premiums. In addition, we clarify that, effective date of March 31, 2020 by the laboratory. The implementing consistent with the reporting of the (hereafter referred to as the ‘‘March 31st regulations at 42 CFR part 493 specify actual premium amounts billed to COVID–19 IFC’’), and the ‘‘Medicare the conditions and standards that must enrollees for 2020 benefit year risk and Medicaid Programs, Basic Health be met to achieve and maintain CLIA adjustment data submissions, HHS’s Program, and Exchanges; Additional certification. These conditions and calculation of risk adjustment payment Policy and Regulatory Revisions in standards strengthen federal oversight of and charges for the 2020 benefit year Response to the COVID–19 Public clinical laboratories and help ensure the under the state payment transfer Health Emergency and Delay of Certain accuracy and reliability of patient test formula will be calculated using the Reporting Requirements for the Skilled results. statewide average premium that reflects Nursing Facility Quality Reporting On March 27, 2020, the President actual premiums billed, taking into Program’’ IFC appeared in the May 8, signed the Coronavirus Aid, Relief, and account any temporary premium credits 2020 Federal Register (85 FR 27550) Economic Security Act (CARES Act) provided as a reduction in premium for with an effective date of May 8, 2020 (Pub. L. 116–136) into law. The CARES the applicable months of 2020 coverage. (hereafter referred to as the ‘‘May 8th Act includes section 18115, which In this IFC, we similarly clarify the COVID–19 IFC’’). requires every laboratory that performs Medical Loss Ratio (MLR) reporting and In this IFC, we are revising or analyzes a test that is intended to rebate calculation requirements in 45 regulations to strengthen CMS’ ability to detect SARS–CoV–2 or to diagnose a CFR part 158 for issuers that elect to enforce new LTC requirements added to possible case of COVID–19 to report the provide temporary premium credits in 42 CFR part 483 published in the May results for such test to the Secretary 2020 such that these issuers must report 8th COVID–19 IFC to report facility data until the conclusion of the PHE for as earned premium the actual premium related to COVID–19 and infection COVID–19. paid, taking into account any temporary control at least weekly. Specifically, we Subsequently, on June 4, 2020, the premium credits provided for the are adding a regulation to specify the Department of Health and Human applicable months of 2020 coverage. civil money penalty (CMP) amounts that Services (HHS) published the COVID– This IFC also announces that we will may be imposed for the failure to 19 Pandemic Response, Laboratory Data not enforce certain procedural volume electronically report COVID–19 data Reporting: CARES Act Section 18115 requirements in order for facilities and each week, which includes, among Guidance,4 implementing the practitioners to maintain Medicare other things, suspected and confirmed requirement under section 18115 of the coverage under specific national COVID–19 infections among residents CARES Act for laboratories to report coverage determinations (NCDs). This and staff, including residents previously COVID-related information to the applies to facilities and practitioners treated for COVID–19, total deaths of Secretary. that, prior to the PHE for COVID–19, COVID–19 deaths among residents and With regard to laboratory oversight, met the volume requirements for these staff, and personal protective equipment HHS endeavors to improve consistency NCDs. and hand hygiene supplies in the in application of laboratory standards, In this IFC, we are also revising the facility. to improve coordination, collaboration, previous policy outlined in the May 8th We are also requiring hospitals and and communication in both routine and COVID–19 IFC, which allowed for broad CAHs to report information in emergent situations, and thereby further COVID–19 testing for a single accordance with a frequency, and in a improve the level of laboratory oversight beneficiary without a physician or other standardized format, as specified by the and ultimately patient care. In order for practitioner order, by establishing that Secretary during the PHE for COVID–19. CMS to ensure laboratories are properly one single COVID–19 diagnostic test We believe that universal reporting by reporting SARS–CoV–2 test results, and one of each other related tests (as listed in the May 8th COVID–19 IFC) all hospitals and CAHs is and will be an CMS has determined that modifications without a treating physician or other important tool for supporting to the CLIA regulations must be made. practitioner order is reasonable and surveillance of COVID–19 and for future We are requiring all laboratories necessary. We are also establishing a planning to prevent the spread of the performing testing related to SARS– policy whereby the orders of virus, especially to those most CoV–2, to report SARS–CoV–2 test pharmacists and other practitioners that vulnerable and at risk to its effects. results in such form and manner, and at In this IFC, we also address condition- are allowed to order laboratory tests in such timing and frequency, as the level noncompliance related to SARS– accordance with state scope of practice Secretary may prescribe during the PHE CoV–2 laboratory reporting and and other pertinent laws can fulfill the for COVID–19. strengthen CMS’ ability to enforce new requirements related to orders for In addition, this IFC clarifies the data requirements to electronically report covered COVID–19 tests for Medicare reporting requirements for issuers of SARS–CoV–2 test results in such form patients. In addition, this IFC updates risk adjustment covered plans 5 to and manner, and at such timing and the extraordinary circumstances specify that, for the purposes of 2020 frequency, as the Secretary may exceptions (ECEs) we granted on March prescribe during the PHE for COVID–19. 22, 2020, for the ESRD Quality Incentive 4 https://www.hhs.gov/sites/default/files/covid- On October 31, 1988, Congress 19-laboratory-data-reporting-guidance.pdf. Program (QIP), Hospital Acquired enacted the Clinical Laboratory 5 See 45 CFR 153.20 for a definition of ‘‘risk Condition (HAC) Reduction Program, Improvement Amendments of 1988 adjustment covered plan’’. HRRP, and Hospital Value-Based
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Purchasing (VBP) Program in response substantially impact efforts to control prevention and control reporting to the PHE for COVID–19, revises the FY the spread of COVID–19 in LTC requirements at § 483.80(g)(1) and (2) 2022 performance period under the SNF facilities. that became effective on May 8, 2020 as VBP as a result of the PHE for COVID– All provisions included in this IFC discussed in the May 8th COVID–19 19, implements a COVID–19 reporting are effective only for the duration of the IFC. requirement for hospitals and critical PHE for COVID–19, unless otherwise Prior to the PHE for COVID–19, access hospitals (CAHs), and modifies indicated. The provision at § 488.447 is regulations at § 483.80(a)(2)(ii) required the application of the extreme and intended to be in effect beyond the facilities to have written standards, uncontrollable circumstances policy for expiration of the PHE for COVID–19. policies and procedures regarding calculation of the 2022 Part C and D Star II. Provisions of the Interim Final Rule infection control, which must include Ratings to address the effects of the PHE With Comment Period (IFC) when and to whom possible incidents of for COVID–19. communicable disease or infections This IFC also announces that with In this IFC, we use the term, ‘‘Public respect to the Hospital VBP Program, Health Emergency (PHE),’’ as defined at should be reported. This includes HRRP, HAC Reduction Program, SNF 42 CFR 400.200. The definition reporting to local/state health VBP Program and the ESRD QIP, if, as identifies the PHE determined to exist authorities. a result of a decision to grant a new nationwide by the Secretary under In an effort to support ongoing nationwide ECE without request or a section 319 of the PHSA on January 31, surveillance of COVID–19 cases, we decision to grant a substantial number 2020, and renewed effective July 25, added to the infection control of individual ECEs, we do not have 2020,6 as a result of confirmed cases of requirements provisions to establish enough data to reliably compare COVID–19. weekly facility reporting of suspected national performance on measures, we and/or confirmed COVID–19 cases, may propose to not score facilities based A. New Enforcement Requirement for among other information, at new on such limited data or make the LTC Facilities § 483.80(g) in the May 8th COVID–19 associated payment adjustments for the Under sections 1866 and 1902 of the IFC (85 FR 27550, 27601 through affected program year. Social Security Act (the Act), providers 27602). This new regulation requires In this IFC, for the 2020 performance of services seeking to participate in the nursing homes to report COVID–19 year and any subsequent performance Medicare or Medicaid program, or both, related facility data to the CDC National year that starts during the PHE for must enter into an agreement with the Healthcare Safety Network (NHSN). COVID–19, we are including in the Secretary or the state Medicaid agency, These new CMS reporting requirements MIPS beneficiary assignment as appropriate. LTC facilities seeking to do not preclude a facility from following methodology for the CMS Web Interface be Medicare and Medicaid providers of all state and local public health and Consumer Assessment of services must be certified as meeting reporting laws and regulations. Healthcare Providers and Systems federal participation requirements. LTC Specifically, we revised our (CAHPS) for MIPS survey the following facilities include SNFs for Medicare and requirements by adding new provisions additions due to the PHE for COVID–19: nursing facilities (NFs) for Medicaid. at §§ 483.80(g)(1) and (2), to require (1) CPT codes: 99421, 99422, and 99423 The federal participation requirements facilities to electronically report (codes for online digital evaluation and for these facilities are specified in information about COVID–19 in a management (E/M) service (e-visit)), and sections 1819 and 1919 of the Act and standardized format and at a frequency 99441, 99442, and 99443 (codes for in implementing regulations at 42 CFR specified by the Secretary, but not less telephone E/M services); and (2) HCPCS part 483, subpart B. than weekly to the CDC NHSN. This codes: G2010 (code for remote Under sections 1819(f)(1) and critical information will provide real- evaluation of patient video/images) and 1919(f)(1) of the Act, the Secretary must time information on COVID–19 in G2012 (code for virtual check-in). In assure that the enforcement of nursing homes, and will be used to addition, we are: (1) Expanding the compliance with the participation monitor trends in infection rates, and improvement activity IA_ERP_3 titled requirements are adequate to protect the inform public health policies. To ‘‘COVID–19 Clinical Trial’’ to also allow health, safety, welfare, and rights of coincide with this new reporting credit for clinicians who participate in residents and to promote the effective requirement, we developed an the care of patients diagnosed with use of public moneys. The federal automated process within the existing COVID–19 and simultaneously submit requirements related to enforcement of ASPEN (Automated Survey Process relevant clinical data to a clinical data the requirements for SNFs, NFs, or Environment) survey software registry for ongoing or future COVID–19 dually-certified facilities, are set forth in application, which uses information research; (2) updating the title; and (3) sections 1819(h) and 1919(h) of the Act received weekly from the CDC to extending it through the CY 2021 and codified in the regulations at 42 determine whether a provider reported performance period. CFR part 488, subpart F. Among the the data as required. We will determine In an effort to support national efforts remedies available to be imposed for if noncompliance exists through a to control the spread of COVID–19, we noncompliance with the requirements is retrospective review each week to are also revising the LTC facility a civil money penalty (CMP), as identify the facilities that failed to take infection control regulations at § 483.80 authorized in sections 1819(h)(2)(B)(ii) the necessary and timely actions to to establish a new requirement for LTC and 1919(h)(3)(C)(ii) of the Act, and report to CDC. Noncompliance with this facilities to test their facility residents §§ 488.430 through 488.444. requirement for each weekly reporting and staff, including individuals We are using our authority under this cycle will be cited at a scope of providing services under arrangement IFC to immediately implement a new widespread, and a severity of no actual and volunteers. We are requiring that enforcement regulation identified below harm with potential for more than resident and staff testing in LTC in order to effectively enhance minimal harm that is not immediate facilities for COVID–19 be conducted enforcement of the new infection based on parameters set forth by the jeopardy, which constitutes a level ‘‘F’’ deficiency. This is consistent with Secretary. We believe these 6 https://www.phe.gov/emergency/news/ requirements will positively and healthactions/phe/Pages/default.aspx. guidance that was issued in QSO 20–
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29–NH 7 which also included requirements by submitting the required requirements at § 483.80(g)(1) and (2) enforcement policies for the imposition report in a 3rd week, but then will be assessed weekly. Facilities found of a CMP for the failure to report to the subsequently fails to report again in a out of compliance with § 483.80(g)(1) CDC NHSN. following week, a CMP in the amount of and (2) are not required to submit a plan With this IFC, we are furthering $2,000 for failing to report a third time of correction as indicated in enforcement efforts of the recently will be imposed for that missed weekly § 488.408(f)(1). These CMP amounts are issued requirements at § 483.80(g)(1) report (which is $500 more than the last subject to annual adjustments for and (2) that facilities report COVID–19 imposed amount). After each CMP is inflation at 45 CFR 102.3. Under this related information to the CDC’s NHSN imposed, CMS will place the facility rule, we will increase the CMP amounts by making revisions to part 488. These back into compliance, without requiring for up to 12 subsequent noncompliance revisions codify enforcement policies a Plan of Correction (POC) in occurrences to the amount specified in that are specifically tailored to accordance with § 488.408(f). A facility § 488.408(d)(1)(iii), which would be reviewing compliance with and may still submit a POC if it chooses to $6,500 per occurrence of imposing CMPs for the failure to report. do so; however, because compliance noncompliance. CMPs imposed in We are enforcing the new reporting will be imposed each week and facilities accordance with this rule are subject to requirements through the imposition of will be assessed an increased CMP the same procedures as all other CMPs CMPs for each time a facility fails to amount for each subsequent failure to imposed under sections 1819(h) and report the required data to the CDC report, a POC will not be necessary. 1919(h) of the Act, including notice, NHSN system. We believe that CMPs are Facilities are offered an opportunity for escrow, independent informal dispute an appropriate enforcement remedy that Independent Informal Dispute resolution, and collections. Also, will facilitate a swift return to Resolution under § 488.431. This may facilities may appeal the determination compliance with the new reporting be requested for reasons, such as leading to a CMP imposed under this requirement. Sections technical difficulties that should be rule in accordance with 42 CFR part 1819(h)(2)(B)(ii)(I) and adequately documented, that may have 498. 1919(h)(3)(C)(ii)(I) of the Act limit the prevented the facility from submitting As discussed in section III. of this IFC, amount of a CMP to $10,000 8 for each its report in a timely manner. ‘‘Waiver of Proposed Rulemaking,’’ we day of noncompliance. We have Currently, under § 488.408(d), believe the urgency of this PHE for determined that a minimum $1,000 Category 2 CMP remedies for COVID–19 constitutes good cause to initial CMP, with a $500 incremental noncompliance that is not immediate increase, is within the authorized CMP jeopardy, but is widespread deficient waive the normal notice-and-comment range and an appropriate amount to practice that does not constitute actual process under Administrative Procedure deter noncompliance with this harm with a potential for more than Act (APA), 5 U.S.C. 533, and section requirement. Specifically, we are noting minimal harm, or that constitutes actual 1871(b)(2)(C) of the Act. Waiving notice that a minimum $1,000 CMP will be harm, are imposed at a daily amount not and comment is in the public interest imposed for the first occurrence of to exceed $6,695.9 Similarly, because because the heightened threat to noncompliance, that is, the first time the noncompliance with § 483.80(g)(1) and resident health and safety for, facility fails to submit a timely report as (2) will be cited at an scope and severity widespread infection control required under § 483.80(g)(1) and (2). of an ‘‘F’’, which would trigger a noncompliance necessitates the For each subsequent time the facility Category 2 remedy, we will not continue expedited imposition of enforcement fails to report the requisite COVID–19 incrementally increasing the remedies. Additionally, because it is related data, the amount of the CMP CMPamount after 12 occurrences of imperative to track the incidence and imposed will be increased by $500, noncompliance, so that the maximum impact of COVID–19 in nursing homes, which is consistent with sections CMP amount imposed would not exceed it is crucial that a financial penalty be 1819(h)(2)(B) and 1919(h)(3)(C) of the $6,500 for each subsequent occurrence imposed for failure to report. The CMP Act providing for the imposition of of noncompliance. This specific amounts we codify in this IFC will help incrementally more severe fines for maximum amount imposed for the deter noncompliance and encourage repeated deficiencies. For example, if a failure to report was established to be facilities to establish procedures that facility fails to report in 1 week, a consistent with the existing CMPs result in prompt weekly COVID–19 minimum $1,000 CMP will be imposed within Category 2 noncompliance. We related data reports for the duration of for that occurrence of noncompliance. If believe imposing CMPs in this manner the PHE for COVID–19. Proper it fails to report again in the subsequent is a fair and effective penalty for the enforcement mechanisms designed to week that new noncompliance failure to report, as assessed each week. deter noncompliant behavior and determination will lead to the To support and further codify these prompt corrective actions will help to imposition of another CMP but in the enhanced enforcement efforts, we are ensure that residents, staff, and the increased amount of $1,500 for that adding § 488.447 to impose a minimum public are safe, and will help provide failure to report. In this example, if the CMP amount of $1,000 for the first critical COVID–19 related data to assist facility complies with the reporting occurrence of noncompliance with the CMS and public health authorities in reporting requirements at § 483.80(g)(1) detecting and expeditiously responding 7 ‘‘Interim Final Rule Updating Requirements for and (2), and will increase the CMP by to outbreaks. Furthermore, requiring Notification of Confirmed and Suspected COVID–19 $500 for each subsequent time the prior notice and comment is Cases Among Residents and Staff in Nursing facility fails to report COVID–19 related impracticable because the PHE for Homes.’’ QSO–20–29–NH (May 6, 2020) https:// COVID–19 that the CMP amounts are www.cms.gov/files/document/qso-20-29-nh.pdf. data as required. Compliance with the 8 This amount is adjusted annually under the tailored to address may expire or be Federal Civil Penalties Inflation Adjustment Act 9 Reflects the 2020 annual inflation adjusted nearly over before a proposed rule can Improvements Act of 2015, and listed in 42 CFR amount under the Federal Civil Penalties Inflation be finalized. Finally, we think prior 102.3. The 2020 adjusted amount is $22,320 (85 FR Adjustment Act Improvements Act of 2015, listed notice and comment is unnecessary 2870, January 17, 2020): https:// in 42 CFR 102.3 (85 FR 2870, January 17, 2020): www.federalregister.gov/documents/2020/01/17/ https://www.federalregister.gov/documents/2020/ because we have broad discretion under 2020-00738/annual-civil-monetary-penalties- 01/17/2020-00738/annual-civil-monetary-penalties- the statute and existing CMP regulations inflation-adjustment. inflation-adjustment. to establish a CMP amount, but we are
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choosing to make our policies more necessary to protect the health and data items that we may require hospitals transparent. We believe that a safety of patients receiving services in and CAHs to submit, as specified by the completely transparent CMP structure those facilities; the CAH provision Secretary (see https://www.hhs.gov/ will help deter noncompliance, authorizes the Secretary to issue such sites/default/files/covid-19-faqs- encourage timely reporting, and other criteria as he or she may require. hospitals-hospital-laboratory-acute- eliminate possible gaps in reporting that The CoPs are codified in the care-facility-data-reporting.pdf for the could hinder the government’s response implementing regulations at part 482 for current list of data items specified.). to the PHE for COVID–19 in specific hospitals, and at 42 CFR part 485, We believe that universal reporting by geographic areas. For example, subpart F, for CAHs. all hospitals and CAHs is and will be an depending on the circumstances, the Our CoPs at § 482.42 for hospitals and important tool for supporting failure of one facility to report COVID– § 485.640 for CAHs, require that surveillance of COVID–19 and for future 19 cases on a timely basis could delay hospitals and CAHs, respectively, have planning to prevent the spread of the our ability to detect and respond to an active facility-wide programs, for the virus, especially to those most emerging COVID–19 hot spot. surveillance, prevention, and control of vulnerable and at risk to its effects, and For similar reasons, we are also healthcare-associated infections (HAIs) we thank the thousands of hospitals and waiving the 30-day delay in effective and other infectious diseases and for the CAHs that have voluntarily reported date for these provisions. The effective optimization of antibiotic use through this data in support of our efforts. date for § 488.447 is the date of the stewardship. Additionally, the programs However, while we recognize the publication of this rule (that is, the must demonstrate adherence to important and immeasurable role that effective date as noted in the DATES nationally recognized infection the timely and continued delivery of section of this IFC). Furthermore, while prevention and control guidelines, as COVID–19 information plays in we would generally expect that the new well as to best practices for improving protecting both individual patients, as § 488.447 would no longer be in effect antibiotic use where applicable, and for well as the overall health of the general as of the end of the PHE for COVID–19 reducing the development and public, we also recognize the crucial as defined in § 400.200, enhanced transmission of HAIs and antibiotic- need for data reporting options that will enforcement to ensure facilities resistant organisms. Infection help eliminate the duplicative and continue to comply with infection prevention and control problems and sometimes competing reporting requests control reporting requirements to avoid antibiotic use issues identified in the that continue to place a significant possible spread of COVID–19 will need required hospital and CAH programs burden on hospitals and CAHs whose to temporarily be in effect for a longer must also be addressed in coordination resources are already stressed during period of time. In conjunction with the with facility-wide quality assessment this PHE for COVID–19. PHE for COVID–19, these enforcement and performance improvement (QAPI) We expect that the new reporting policies will continue to be in effect for programs. requirements that will be specified by up to one year beyond the end of the Infection prevention and control is a the Secretary, would include reporting PHE. primary goal of hospitals and CAHs in channel options to make submission of their normal day-to-day operations, and data as user-friendly as possible to B. Condition of Participation (CoP) these programs have been at the center reduce the strain and burden hospitals Requirements for Hospitals and CAHs of initiatives taking place in hospitals and CAHs are currently experiencing as To Report COVID–19 Data As Specified and CAHs during the PHE for COVID– they face data requests from a multitude by the Secretary During the PHE for 19. Our regulations at §§ 482.42(a)(3) of federal, state, local, and private COVID–19 and 485.640(a)(3) require infection entities. The new standards will require Under sections 1866 and 1902 of the prevention and control program policies hospitals and CAHs to report Act, providers of services seeking to to address any infection control issues information on COVID–19 in a participate in the Medicare or Medicaid identified by public health authorities. standardized format specified by the program, or both, must enter into an On March 4, 2020, we issued Secretary. Also, the information must be agreement with the Secretary or the guidance 10 stating that hospitals should reported at a frequency and manner state Medicaid agency, as appropriate. inform infection prevention and control specified by the Secretary. Hospitals (all hospitals to which the services, local and state public health We believe that a streamlined requirements of 42 CFR part 482 apply, authorities, and other healthcare facility approach to reporting data will greatly including short-term acute care staff as appropriate about the presence assist the White House Coronavirus hospitals, LTC hospitals, rehabilitation of a person under investigation for Task Force (COVID–19 Task Force) in hospitals, psychiatric hospitals, cancer COVID–19. tracking the movement of the virus and hospitals, and children’s hospitals) and In this IFC, we are now requiring identifying potential problems in the CAHs seeking to be Medicare and hospitals and CAHs to report healthcare delivery system. The Medicaid providers of services must be information in accordance with a completeness, accuracy, and timeliness certified as meeting federal participation frequency, and in a standardized format, of the data will inform the COVID–19 requirements. Our conditions of as specified by the Secretary during the Task Force decisions on capacity and participation (CoPs), conditions for PHE for COVID–19. Examples of data resource needs to ensure a fully coverage (CfCs), and requirements set elements that may be required to be coordinated effort across the nation. out the patient health and safety reported include things such as the Furthermore, we believe that consistent protections established by the Secretary number of staffed beds in a hospital and processes and streamlined methods for for various types of providers and the number of those that are occupied, the reporting of COVID–19 information suppliers. The specific statutory information about its supplies, and a will possibly reduce future, and urgent, authority for hospital CoPs is set forth count of patients currently hospitalized requests for such data. in section 1861(e) of the Act; section who have laboratory-confirmed COVID– We note here that the new reporting 1820(e) of the Act provides similar 19. This list is not exhaustive of those requirements at §§ 482.42(e) and authority for CAHs. The hospital 485.640(d) do not relieve a hospital or provision authorizes the Secretary to 10 https://www.cms.gov/files/document/qso-20- a CAH, respectively, of its obligation to issue any regulations he or she deems 13-hospitalspdf.pdf-2. continue to comply with §§ 482.42(a)(3)
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or 485.640(a)(3), each of which requires other provider areas, including use of principle, data should be sent to state or a facility to address any infection CMPs for nursing homes that fail to local public health departments using prevention and control issues identified report, and find it prudent to enact existing reporting channels (in by public health authorities. We believe penalties for hospitals and CAHs that accordance with state law or policies) to that the requirements, as specified in similarly fail to report COVID–19 test ensure rapid initiation of case this rule, to collect and transmit these results. CMS currently lacks the investigations by those departments, data, will also encourage greater statutory authority to impose CMPs concurrent to laboratory results being awareness and promotion of best against hospitals and CAHs; however, shared with an ordering provider, or practices in infection prevention and intermediate penalties such as CMPs patient as applicable.’’ 12 control within these facilities. have been an extremely useful tool in The June 4, 2020 guidance further This reporting requirement supports the enforcement of reporting explains that ‘‘all laboratories— our responsibility to protect and ensure requirements for nursing homes, including laboratories, testing locations the health and safety of hospital and helping to achieve 98 percent operating as temporary overflow or CAH patients by, among other things, compliance. Therefore, we will continue remote locations for a laboratory, and ensuring that these facilities follow to utilize all enforcement and payment other facilities or locations performing infection prevention and control authorities available to incentivize and testing at point of care or with at-home protocols based on recognized standards promote compliance with all health and specimen collection related to SARS– of practice. We believe that these safety requirements, as allowed by CoV–2—shall report data for all testing reporting requirements are necessary for statute and regulation. completed, for each individual tested, CMS to monitor whether individual within 24 hours of results being known hospitals and CAHs are appropriately C. Requirements for Laboratories To or determined, on a daily basis to the tracking, responding to, and mitigating Report SARS–CoV–2 Test Results appropriate state or local public health the spread and impact of COVID–19 on During the PHE for COVID–19 department based on the individual’s patients, the staff who care for them, Assuring a rapid and thorough public residence.’’ and the general public. We believe that health response to the COVID–19 On October 31, 1988, Congress this action reaffirms our commitment to pandemic relies on having complete and enacted the CLIA (Pub. L. 100–578) protecting the health and safety of all comprehensive laboratory testing data, (codified as amended at 42 U.S.C. 263a) patients who receive care at the including standardized test results, requiring any laboratory that examines approximately 6,200 Medicare- and relevant demographic details, and human specimens for the purpose of Medicaid-participating hospitals and additional information that can improve providing information for the diagnosis, CAHs nationwide. both the response to SARS–CoV–2 and prevention, or treatment of any disease As discussed in section III. of this IFC, treatment of COVID–19. These data can or impairment of, or the assessment of ‘‘Waiver of Proposed Rulemaking,’’ we contribute to understanding disease health, of human beings to be certified believe the urgency of this PHE for incidence and trends: Initiating by the Secretary for the categories of COVID–19 constitutes good cause to epidemiologic case investigations, examinations or procedures performed waive the normal notice-and-comment assisting with contact tracing, assessing by the laboratory. The implementing process under the APA and section availability and use of testing resources, regulations at 42 CFR part 493 specify 1871(b)(2)(C) of the Act. Waiving notice and identifying supply chain issues for the conditions and standards that must and comment is in the public interest reagents and other material. Laboratory be met to achieve and maintain CLIA because time is of the essence in testing data, in conjunction with case certification. These conditions and tracking the incidence and impact of reports and other data, also provide vital standards strengthen federal oversight of COVID–19 in hospitals and CAHs; such guidance for mitigation and control clinical laboratories and help ensure the information will assist public health activities. accuracy and reliability of patient test officials in detecting outbreaks and Section 18115(a) of the CARES Act results. saving lives. requires every laboratory that performs Currently, the CLIA program only The applicability date for § 482.42(e) or analyzes a test that is intended to collects non-waived testing specialty for hospitals and § 485.640(d) for CAHs detect SARS–CoV–2 or to diagnose a and subspecialty information from is the date of the publication of this rule possible case of COVID–19 (hereinafter laboratories issued a Certificate of as noted in the DATES section of this IFC. referred to as a ‘‘SARS–CoV–2 test’’ or Compliance (CoC), Certificate of 2. Enforcement of Requirements for ‘‘COVID–19 diagnostic test’’) to report Accreditation (CoA), or Certificate of Hospitals and Critical Access Hospitals the results from each such test to the Registration (CoR). Such information is (CAHs) To Report COVID–19 Data Secretary until the end of the PHE for collected for certain specialties, subspecialties, and analytes for We believe reporting by hospitals and COVID–19. In addition, the statute authorizes the Secretary to prescribe the proficiency testing purposes and during CAHs is an important tool for surveys to ensure that the laboratory is supporting surveillance of COVID–19 form and manner, and timing and frequency, of such reporting. As meeting CLIA requirements for the level and we will enforce violations of and specialty/subspecialty of testing reporting requirements to the extent indicated in HHS guidance issued on 11 performed. CMS does not know the authorized by the Secretary. Should a June 4, 2020, in an effort to receive these data in the most efficient and complete universe of laboratories hospital or CAH fail to consistently performing SARS–CoV–2 testing, or report test results throughout the effective manner, the Secretary has required that all data be reported which tests are being performed as duration of the PHE for COVID–19, it information related to specific test will be non-compliant with the hospital through existing public health data reporting methods. The June 4, 2020 systems is not captured in our database. and the CAH CoPs set forth at While we collect this information guidance states that ‘‘as a guiding §§ 482.42(e) and 485.640(d), when laboratories initially apply for all respectively, and subject to termination 11 COVID–19 Pandemic Response, Laboratory certificate types, subsequently it is only as defined at 42 CFR 489.53(a)(3). We Data Reporting: Section 18115 of the CARES Act, have taken a position on the importance https://www.hhs.gov/sites/default/files/covid-19- 12 https://www.hhs.gov/sites/default/files/covid- of COVID–19 test results reporting in laboratory-data-reporting-guidance.pdf. 19-laboratory-data-reporting-guidance.pdf.
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collected for CoC and CoA laboratories laboratory that performs a SARS–CoV– report SARS–CoV–2 test results. The during an initial, recertification, 2 test must report SARS–CoV–2 test statute allows for the imposition of validation, or complaint survey, as results in such form and manner, and at CMPs in an amount not to exceed described above. This data is collected such timing and frequency, as the $10,000 for each violation (for example, to ensure that such labs are meeting the Secretary may prescribe. We are also per sample not reported) or for each day applicable CLIA test complexity testing finalizing that failure to submit SARS– of substantial noncompliance. We quality requirements. Certificate of CoV–2 test results to the Secretary will believe imposing CMPs based on a per Waiver (CoW) and Certificate for be considered a violation of the new day basis is a fairer and more effective Provider-Performed Microscopy (PPM) CLIA reporting requirements, resulting penalty for failure to report than a per laboratories are not required to submit in condition level deficiencies for which violation basis. The latter could lead to information related to updating their CMPs or other penalties may apply. large CMPs for brief lapses in reporting. test menu as long as the new testing These regulatory amendments at The CLIA regulations at falls under their current certificate. §§ 493.41 and 493.1100(a) will require § 493.551(a)(1) require both the AOs and During this PHE for COVID–19, the all laboratories, including, those holding ESs to have requirements that are equal Food and Drug Administration (FDA) is a CoW, to report SARS–CoV–2 test to, or more stringent than, the CLIA issuing Emergency Use Authorizations results to the Secretary for the duration condition-level requirements, so we for in vitro diagnostics that are of the PHE for COVID–19, and specify would expect the AOs and ESs to have categorized to be run by certain CLIA- that failure to do so will result in a equivalent reporting requirements to certified laboratories (which may condition level violation of the CLIA CMS. AOs do not impose CMPs; include laboratories with a CoW or regulations. Should a laboratory not however, ESs do have the ability to Certificate for PPM), depending on the report required SARS–CoV–2 test impose CMPs, so we would expect ESs scope and FDA’s categorization of the results, we will impose a CMP under to have an equivalent penalty structure authorized test. SARS–CoV–2 testing §§ 493.1804 and 493.1834. to CMS. The ESs are generally approved includes molecular, antibody, and We are adding or amending the by CMS to operate their own oversight following regulations: programs so we would expect that the antigen methods. Molecular (RT–PCR) • tests detect the virus’s genetic material At § 493.2, Definitions, we are two ESs would report these laboratories and antigen tests detect specific proteins amending the definition of ‘‘Condition to CMS, but would then impose the on the surface of the virus. Both types level requirements’’ to include the penalties based on their updated CMS- of tests are used to detect active or acute requirements in § 493.41. This change is approved standards. In the case of the infection with SARS–CoV–2. Serology necessary to allow for the imposition of accredited laboratories, the laboratories (antibody) testing is used to look for the CMPs on CoW laboratories that fail to identified as not reporting SARS–CoV– presence of antibodies which are comply with § 493.41 during the 2 results as required would result in proteins produced by the body in Secretary’s PHE declaration for COVID– CMS taking a subsequent enforcement response to infections. Due to the 19 or any extension of such declaration. action as described in this section. • At § 493.41, we are adding a that, variety of COVID–19 testing available, for the duration of the PHE for COVID– D. Quality Reporting: Updates to the our current informational limitations Extraordinary Circumstances 19, CoW laboratories report SARS–CoV– present a gap in understanding the Exceptions (ECE) Granted for Four 2 test results to the Secretary. universe of laboratories performing • At § 493.555, we are amending the Value-Based Purchasing Programs in SARS–CoV–2 testing. provision by adding paragraph (c)(6) Response to the PHE for COVID–19, and We believe that, by collecting testing requiring that, for the duration of the Update to the Performance Period for information, the CLIA program will be PHE for COVID–19, CMS-deemed the FY 2022 SNF VBP Program able to identify quality and accuracy Accreditation Organizations (AO) and As part of our response to the COVID– issues with laboratories performing State Licensure Programs, Exempt States 19 pandemic, on March 22, 2020, we SARS–CoV–2 testing during this PHE (ES), notify CMS within 10 days after granted ECEs to ESRD facilities, for COVID–19. Currently we do not have identifying a laboratory that fails to hospitals, and SNFs to reduce the data a specific reporting requirement that report SARS–CoV–2 test results as collection and reporting burden on allows for collection of SARS–CoV–2 required at §§ 493.41 and 493.1100(a). these facilities and providers so they testing information. Once we have • At § 493.1100, we are adding could direct their full resources to accurate information on which paragraph (a) which requires that, for patient care during the early months of laboratories are performing SARS–CoV– the duration of the PHE for COVID–19, the pandemic. Each of these ECEs 2 testing, our oversight authority will all laboratories performing non-waived relieved these providers and facilities of allow us to survey these laboratories to SARS–CoV–2 testing report SARS–CoV– their obligation to report data for the determine if they are performing testing 2 test results to the Secretary. fourth quarter calendar year (CY) 2019, within their appropriate CLIA certificate • At § 493.1804, we are revising first quarter CY 2020 and second quarter and that they are meeting applicable paragraph (c)(1) to allow us to impose CY 2020, but we stated that we would CLIA requirements to perform accurate alternative sanctions (including CMPs) score such data if optionally reported. and reliable testing. For CMS to ensure on CoW laboratories for failure to We continue to believe that the data laboratories are reporting SARS–CoV–2 comply with §§ 493.41 and 493.1100(a) we have excepted from mandatory test results, the CLIA regulations need to during the PHE for COVID–19. reporting under these ECEs serves be modified to require SARS–CoV–2 test • At § 493.1834, we are amending the multiple purposes, including allowing result reporting. In the interest of provision by adding paragraph (d)(2)(iii) us to understand the impact of the PHE ensuring quality laboratory testing to define the per day CMP amounts that for COVID–19 on quality of care. during the PHE for COVID–19, we are may be imposed as a result of SARS– However, we are concerned about the finalizing the requirement for CoV–2 reporting violations. Such CMPs national comparability of these data due submission of SARS–CoV–2 test results will be $1000 for the first day of to the geographic differences of COVID– to the Secretary. Specifically, we are noncompliance with the new reporting 19 incidence rates and hospitalizations, finalizing that during the PHE for requirements, and $500 for each along with different impacts resulting COVID–19, as defined in § 400.200, each subsequent day the laboratory fails to from different state and local laws and
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policy changes implemented in set by CMS for the applicable payment we were granting under each Medicare response to COVID–19. year receives up to a 2 percent reduction QRP and VBP program.14 As a result, we believe it is necessary to its ESRD PPS payment for that year. Under the ECE for the PHE for in this IFC to update the ECEs that we In the CY 2015 ESRD PPS final rule COVID–19 that we granted to all have granted for the following value- (79 FR 66189 through 66190), we facilities participating in the ESRD QIP, based purchasing programs: adopted an ECE policy for the ESRD such facilities are currently excepted • The End-Stage Renal Disease QIP, which recognized that there are from the following reporting Quality Incentive Program (ESRD QIP); times when facilities are unable to requirements and submission deadlines: • The Hospital-Acquired Condition submit required quality data due to • For the National Healthcare Safety (HAC) Reduction Program; extraordinary circumstances that are not Network (NHSN) blood stream infection • The Hospital Readmissions within their control, and that facilities (BSI) clinical measure and NHSN Reduction Program (HRRP); and should not be penalized for such Dialysis Event reporting measure: • The Hospital Value-Based circumstances or have their burden ++ March 31, 2020, June 30, 2020, Purchasing (HVBP) Program. unduly increase during these times. September 30, 2020 reporting deadlines Under these updated ECEs, we will This policy was implemented under the for encounters during the following only score data that was optionally authority of section 1881(h)(3)(A)(i) of periods: reported for fourth quarter CY 2019. We the Act, which requires the Secretary to —October 1, 2019 to December 31, will also exclude all data that was develop a methodology for assessing the 2019 (Q4 2019)—We noted that data optionally reported for the first or total performance of each provider of from the 4th quarter 2019 would be second quarter of CY 2020 from our services and renal dialysis facility based utilized if submitted. calculation of performance. We note on performance standards for the —January 1, 2020 to March 30, 2020 that all of the ECEs that have been measures selected under section (Q1 2020). granted for the time periods discussed 1881(h)(2) of the Act for a performance —April 1, 2020 to June 30, 2020 (Q2 2020). above have now ended. period established under section • In this IFC, we are also updating the 1881(h)(4)(D) of the Act. We interpreted For ESRD QIP CROWNWeb performance period for the FY 2022 section 1881(h)(3)(A)(i) of the Act to reporting deadlines and applicable SNF VBP Program because we are enable us to configure the methodology clinical months: ++ March 31, 2020 (January 2020 concerned that using qualifying claims for assessing facilities’ total performance clinical month). from the two quarters that are not such that we would not require a facility ++ April 30, 2020 (February 2020 excepted under the ECE for COVID–19 to submit, nor penalize a facility for clinical month). (October 1, 2019 through December 31, failing to submit, data on any ESRD QIP ++ June 1, 2020 (March 2020 clinical 2019 (Q4 2019), and July 1, 2020 quality measure data from any month in month). through September 30, 2020 (Q3 2020)) which a facility is granted an ECE. ++ June 30, 2020 (April 2020 clinical for all SNFs nationwide to calculate the In the CY 2018 ESRD PPS final rule month). SNF Readmission Measure (SNFRM) for (82 FR 50761 through 50763), we ++ August 3, 2020 (May 2020 clinical the FY 2022 Program will not yield modified the requirements for the ESRD month). measure scores that reliably reflect SNF QIP’s ECE policy to further align that ++ August 31, 2020 (June 2020 quality of care as determined by policy with the ECE policy adopted by clinical month). hospital readmission rates. As explained other quality reporting and VBP • For the Consumer Assessment of more fully below, the new performance programs. In the CY 2020 ESRD PPS Healthcare Providers and Systems In- period will be April 1, 2019 through final rule (84 FR 60714), we codified Center Hemodialysis (ICH–CAHPS) December 31, 2019 and July 1, 2020 requirements for the ECE policy at 42 Survey: through September 30, 2020. CFR 413.178(d)(3) through (7), ++ The data collected to fulfill the 1. Updates to ESRD QIP: Utilization of including a new option for facilities to July 2020 data submission deadline for Fourth Quarter CY 2019 ESRD QIP Data reject an ECE granted by CMS under the Spring 2020 Survey. and the Removal of the Option for certain circumstances. We stated that ++ Data collected May 1, 2020–July this option would provide facilities with 10, 2020. Facilities to Opt-Out of the • Extraordinary Circumstances Exception flexibility under the ECE policy. We For ESRD QIP claims-based (ECE) Granted With Respect to First and also adopted this provision to provide measures, claims data during the Second Quarter (CY) 2020 ESRD QIP further guidance to the public on the following times would be excluded from Data scope of our ECE policy. measure calculations: ++ March 1, 2020–June 30, 2020. b. Background of the ESRD QIP ECE a. Background of the ESRD QIP ECE With respect to the requirement that Granted in Response to the PHE for Policy facilities selected for validation under COVID–19 The ESRD QIP is authorized under one or both ESRD QIP data validation section 1881(h) of the Act, and it aims On March 22, 2020, in response to studies (CROWNWeb and NHSN) to promote high-quality care in dialysis COVID–19, we announced relief for submit medical records within 60 days facilities by linking a portion of their clinicians, providers, hospitals and of the date identified on the written payment under the ESRD prospective facilities participating in Medicare request letter, we excepted facilities payment system (PPS) directly to their quality reporting programs (QRPs) and from that requirement as follows: 13 • performance on quality of care VBP programs. On March 27, 2020, we NHSN and CROWNWeb record measures. The ESRD QIP assesses published a supplemental guidance requests for discharge periods: facility performance on clinical and memorandum that described in more ++ January 1, 2019–March 31, 2019 reporting measures adopted through the detail the scope and duration of the ECE (Q1 2019). rulemaking process and scores dialysis 13 CMS press release available at https:// 14 CMS memorandum available at https:// facilities based on that performance. A www.cms.gov/newsroom/press-releases/cms- www.cms.gov/files/document/guidance-memo- facility that does not meet or exceed the announces-relief-clinicians-providers-hospitals- exceptions-and-extensions-quality-reporting-and- minimum total performance score (TPS) and-facilities-participating-quality-reporting. value-based-purchasing-programs.pdf.
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++ April 1, 2019–June 30, 2019 (Q2 timely reported fourth quarter 2019 of this PHE for COVID–19, we believe 2019). ESRD QIP data on these measures. performance scores for certain measures In the March 27, 2020 guidance, we These data also assess facility could be biased and not reflective of also advised that facilities should be performance prior to the start of the PHE nationally comparable performance. aware of the potential subsequent for COVID–19. Unlike the first and Similarly, we are concerned that there impact to a facility’s TPS when data are second quarter 2020 data, we do not may be indirect and unintended excluded from score calculations, and have concerns about the national consequences of calculating scores noted that facilities impacted by comparability or representativeness of using potentially biased data that may COVID–19 could elect to opt out of this the fourth quarter 2019 NHSN data not reflect the facility’s overall quality. ECE by emailing their request to the because those data reflect facility Due to facilities having the option to ESRD QIP at [email protected] by performance prior to the start of the PHE submit or not submit data for this June 19, 2020. for COVID–19. In addition, nearly all period, the data may not provide a c. Update to the ESRD QIP ECE Policy facilities reported these data prior to the nationally comparable assessment of for the PHE for COVID–19 announcement of the ECE with the performance. Thus, reporting bias is expectation that they would be used for possible due to the voluntary We continue to believe that the ESRD scoring. Accordingly, we are updating submission of data; that is, a bias could QIP data we have excepted serves our regulations at § 413.178(d)(7) to be potentially introduced because only multiple purposes, including allowing state that a facility has opted out of the high performers and/or facilities not us to understand the impact of the PHE ECE for COVID–19 with respect to the impacted or better resourced would for COVID–19 on the quality of ESRD reporting of fourth quarter 2019 NHSN choose to submit data, while impacted care provided to Medicare beneficiaries data if the facility actually reported the facilities and/or facilities with fewer and supporting the continued analysis data by the March 31, 2020 submission resources would choose not to submit and evaluation of ESRD quality data deadline but did not notify CMS that it data. This would affect comparisons submitted to CROWNWeb. However, we would do so, and we will include these between facilities with different are concerned about the national data when we calculate facility TPSs for circumstances, and would not be in comparability of these data due to the PY 2021 and performance standards for keeping with the program goal of geographic differences of COVID–19 PY 2023. This change will enable us to national comparison. Therefore, we incidence rates and hospitalizations, use the data which, as we explain believe that it would be inappropriate to along with different impacts resulting above, are reflective of facility include data submitted regarding care from different state and local law and performance and were reported with the provided during first and second quarter policy changes implemented in expectation that they would be used for CY 2020 in our calculation of a facility’s response to COVID–19. For these scoring. This change is also consistent TPS, which is used to determine each reasons, we are adopting in this IFC two with our statement in the ECE updates to our current ECE policy for facility’s payment adjustment. announcement that we would score Therefore, we are revising the opt out the ESRD QIP. First, we are updating these data if they were submitted. A our regulations at 42 CFR 413.178(d)(7) policy currently codified at facility that did not timely report its § 413.178(d)(7) to provide that the opt to state that a facility has opted out of fourth quarter 2019 NHSN BSI clinical the ECE for COVID–19 with respect to out policy does not apply to data measure and NHSN Dialysis Event excepted due to the PHE for COVID–19 the reporting of fourth quarter 2019 reporting measure data will not be NHSN data if the facility actually with—that is, the first quarter and eligible to receive scores on those second quarters of CY 2020 ESRD QIP reported the data by the March 31, 2020 measures for PY 2021. deadline but did not notify CMS that it data. would do so. Additionally, we are ii. CY 2020 First and Second Quarter Finally, although the ECE we granted removing the ability of facilities to opt- ESRD QIP Data for the ESRD QIP has ended, with data out of the ECE we granted with respect Under our current policy, facilities collection and reporting requirements to Q1 and Q2 2020 ESRD QIP data. may opt out of the ECE we proactively having resumed July 1, 2020, we granted in response to the PHE for understand that geographic differences i. CY 2019 Fourth Quarter NHSN ESRD in COVID–19 incidence continue to QIP Measure Data COVID–19, and continue to report ESRD QIP data. We implemented this policy change during the PHE for COVID–19. As described previously, we excepted to give facilities flexibility to continue To maintain flexibility for addressing facilities from the requirement to report to report, in particular where a facility the impact of COVID–19 on the ESRD fourth quarter CY 2019 data for the does not believe it has been impacted by QIP and determine how best to NHSN BSI clinical measure and NHSN the extraordinary circumstance(s). We implement the program equitably, we Dialysis Event reporting measure to do not believe that is the case here, as are announcing in this IFC that if, as a alleviate the reporting burden on the PHE for COVID–19 is a nationwide result of an extension of the ECE for the facilities responding to the PHE for PHE and an overwhelming majority of whole country that we grant without a COVID–19 that would otherwise be facilities continue to be impacted by request or the submission of individual required to report these data by the COVID–19. For example, regardless of ECE requests, we do not have enough March 31, 2020 submission deadline. protocols in place at facilities, dialysis data to reliably measure national However, in both the March 22nd and patients concerned about being exposed performance under the ESRD QIP, we March 27th guidance we also stated that to COVID–19 at a facility may decide to may propose to not score facilities based we would utilize these data if skip their treatment sessions.15 This on such limited data or make the submitted. At the time we announced could be reflected in quality metrics associated payment adjustments to the ECE for COVID–19, there were captured for the facility when the facilities under the ESRD PPS for the approximately 9 days (time period patients return to treatment. affected program year. For example, if between March 22, 2020 to March 31, Furthermore, due to the national nature we granted an ECE that excepted 2020) remaining for facilities to submit facilities from the requirement to report their fourth quarter 2019 NHSN data, 15 See https://www.kidney.org/coronavirus/ data for 11 of the 12 months of a given and nearly all facilities (97.6 percent) dialysis-covid-19. performance period, we would consider
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not scoring or applying payment our calculation of Payment Year 2022 ECE to hospitals in an affected region or adjustments for the associated ESRD TPSs and from the baseline for PY 2023. locale, we will convey this decision QIP payment year because data from the through routine communication 2. Updates to the Application of the one non-excepted month may not be channels to hospitals, vendors, and HAC Reduction Program ECE Policy in large enough to calculate reliable QIOs, including, but not limited to, Response to the PHE for COVID–19 measure results for scoring purposes. issuing memos, emails, and notices on Although the data themselves may be a. Background of the HAC Reduction the QualityNet website. When time accurate, the measure(s) might not meet Program ECE Policy permits we will also communicate such the reliability standards because of the The Hospital-Acquired Condition decisions through the annual IPPS/ small sample of the remaining non- Reduction Program (‘‘HAC Reduction LTCH PPS proposed rule. excepted part of the performance Program’’) is authorized under section In the FY 2018 IPPS/LTCH PPS final 16 period. In addition, in the scenario we 1886(p) of the Act and it aims to rule (82 FR 38276 through 38277), we describe above, it is plausible that only heighten awareness of HACs and reduce modified the requirements for the HAC larger facilities would be able to meet the number of incidences that occur Reduction Program ECE policy to the required case minimums to be through implementing the payment further align with the process used by scored in the non-excepted part of the adjustments authorized under such other QRP and VBP programs for performance period. We may conclude statute. The HAC Reduction Program requesting an exception from program that only scoring remaining facilities began affecting hospitals’ Medicare reporting due to an extraordinary would not produce an accurate national payments with FY 2015 discharges (that circumstance not within a provider’s comparison of dialysis facilities. is, October 1, 2014). In the FY 2016 control. Alternatively, if we do not extend the Inpatient Prospective Payment System ECE to cover Q3 and Q4 2020, it is b. Background of the HAC Reduction (IPPS)/Long-term Care Hospitals (LTCH) possible that a majority of facilities Program ECE Granted for the PHE for PPS final rule (80 FR 49579 through might still submit individual ECE COVID–19 49581), we adopted an ECE policy for requests for those quarters and it is the HAC Reduction Program, which On March 22, 2020, in response to possible that so many facilities will recognized that there may be periods of COVID–19, we announced relief for submit individual ECE requests that we time during which a hospital is affected clinicians, providers, hospitals, and will not be able to produce a reliable by an extraordinary circumstance facilities participating in Medicare QRPs national comparison. In both cases, we beyond its control. We noted that we and VBP programs.17 On March 27, are concerned about using the measures considered the feasibility and 2020, we published a supplemental calculated based on these data to score implications of excluding data for guidance memorandum that described facilities under the ESRD QIP and base in more detail the scope and duration of payment adjustments on those scores. If certain measures for a limited period of time from the calculations of the the ECEs we were granting under each circumstances warrant, we may propose Medicare QRP and VBP program.18 to suspend prospective application of hospital’s measure results or Total HAC Under the ECE granted to all eligible program penalties or payment Score for the applicable performance hospitals under the HAC Reduction adjustments through the annual ESRD period. We expressed our aim to Program, we stated that qualifying PPS proposed rule. However, in the minimize data excluded from the claims would be excluded from the interest of time and transparency, we program to allow affected hospitals to measure calculations for the CMS may provide subregulatory advance continue to participate in the HAC Patient Safety Indicators (PSI) 90 during notice of our intentions to suspend such Reduction Program for a given year if the periods January 1, 2020–March 31, penalties and adjustments through these hospitals continue to meet 2020 (Q1 2020) and April 1, 2020–June routine communication channels to applicable measure minimum threshold 30, 2020 (Q2 2020). We also provided an facilities, vendors, and Quality requirements. We further observed that exception to reporting for all chart- Improvement Organizations (QIOs). The section 1886(p)(4) of the Act permits the abstracted HAC Reduction Program communications could include memos, Secretary to determine the applicable measures for the May, August, and emails, and notices on the public period for HAC data collection, and we November 2020 submission deadlines QualityNet website (https:// interpreted the statute to allow us to (for reporting Q4 2019, Q1 2020, and Q2 www.qualitynet.org/). We welcome determine that the period not include 2020 data, respectively). This exception public comments on the update to our times when hospitals may encounter includes the following NHSN HAI regulations at § 413.178(d)(7) to extraordinary circumstances. This Measures: consider a facility as having opted out policy was similar to the ECE policy for of the ECE with respect to NHSN data the Hospital Inpatient QRP, as initially ++ NHSN Catheter-Associated reported for Q4 2019 if the facility adopted in the FY 2012 IPPS/LTCH PPS Urinary Tract Infection (CAUTI) actually reported the data by the final rule (76 FR 51651), and modified Outcome Measure, National Quality submission deadline, without notifying in the FY 2014 IPPS/LTCH PPS final Forum (NQF) #0138. CMS, and we will include these data rule (78 FR 50836) and the FY 2015 ++ NHSN Central Line-Associated when we calculate facility TPSs for PY IPPS/LTCH PPS final rule (79 FR Blood Stream Infection (CLABSI) 2021 and performance standards for PY 50277). Outcome Measure, NQF #0139. In the FY 2016 IPPS/LTCH PPS final 2023. We also welcome public ++ NHSN Facility-wide Inpatient rule (80 FR 49580 through 49581), we comments on the exception we are Hospital-onset Clostridium difficile also stated that this policy would not finalizing to the ECE opt out policy for preclude CMS from granting ECEs to the ESRD QIP, and we will exclude any 17 CMS press release available at https:// hospitals that do not request them if we ESRD QIP data that facilities optionally www.cms.gov/newsroom/press-releases/cms- determine at our discretion that a announces-relief-clinicians-providers-hospitals- reported during Q1 and Q2 2020 from disaster or other extraordinary and-facilities-participating-quality-reporting. 18 CMS memorandum available at https:// 16 See http://www.qualityforum.org/WorkArea/ circumstance has affected an entire www.cms.gov/files/document/guidance-memo- linkit.aspx?LinkIdentifier=id&ItemID=86453 and region or locale. We noted that if CMS exceptions-and-extensions-quality-reporting-and- choose the ‘‘Evaluation Guidance’’ link. makes such a determination to grant an value-based-purchasing-programs.pdf.
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Infection (CDI) Outcome Measure, NQF Secretary’s declaration of a PHE under could both impact the national #1717. section 319 of the PHSA. Therefore, we comparability of optionally submitted ++ NHSN Facility-wide Inpatient determined that it would be appropriate data. Because the HAC Reduction Hospital-onset Methicillin-Resistant to include data that were optionally Program relies on a relative scoring Staphylococcus aureus (MRSA) reported by hospitals for the fourth methodology, we believe that it would Bacteremia Outcome Measure, NQF quarter of CY 2019 in calculating be inappropriate and could disparately #1716. hospitals’ Total HAC Scores, which are impact hospitals to include data from ++ American College of Surgeons— used to determine the worst-performing quarters excepted under CMS guidance Centers for Disease Control and 25 percent of hospitals on HAC for the PHE for COVID–19 in our Prevention Harmonized Procedure performance for assessing the 1 percent calculation of hospitals’ performance for Specific Surgical Site Infection (SSI) HAC Reduction Program penalty. This the program. Outcome Measure, NQF #0753. determination is consistent with the Finally, although the ECE we granted We also advised that hospitals should policy stated in the March 27, 2020 for the HAC Reduction Program has be aware of the potential subsequent guidance memo.19 ended, with data collection and impact to the HAC Reduction Program reporting requirements resuming July 1, minimum case threshold counts for ii. CY 2020 First and Second Quarter 2020, we understand that geographic inclusion in these programs. Data differences in COVID–19 incidence c. Update to the HAC Reduction In our application of the ECE policy continue to change during the PHE for Program ECE Granted in Response to the for the PHE for COVID–19, we excepted COVID–19. To maintain flexibility for PHE for COVID–19 hospitals from the requirement to report addressing the impact of COVID–19 on first and second quarter of CY 2020 We continue to believe that the HAC the HAC Reduction Program and HAC Reduction Program chart- determine how best to implement the Reduction Program data we have abstracted measures and stated we excepted serves multiple purposes, program equitably, we are announcing would exclude qualifying claims both that if, as a result of the extension of the including allowing us to understand the because we hoped to alleviate the impact of the PHE for COVID–19 on ECE for the whole country that we grant reporting burden on hospitals that were without a request or the submission of quality of care. Furthermore, the chart- responding to the PHE for COVID–19 abstracted measures in the HAC individual ECE requests, we do not have and because of our concern that the enough HAC Reduction Program data to Reduction Program are calculated based representativeness of the data collected on data submitted to the CDC’s NHSN. reliably measure national performance, during this period may be greatly we may propose to not score hospitals We recognize that because the CDC uses impacted by the response to COVID–19. the same data for epidemiological based on such limited data or make the We also noted that if hospitals associated payment adjustments to surveillance, hospitals may have optionally chose to report data, we reporting requirements which are not hospitals under the IPPS for the affected would use that data for program program year. If we grant another ECE affected by our ECE (for example, state calculations. While we continue to requirements). We are also concerned in the future, we would not require that encourage optional submission of data, hospitals report the excepted data for with the national comparability of these we also aim to have the most data due to the geographic differences of the duration of the ECE. Although a representative comparison of hospital hospital may voluntarily report data COVID–19 incidence rates and performance as possible and do not hospitalizations along with different during the ECE, we may determine that wish to unfairly penalize hospitals that such data will not be used for scoring impacts resulting from different state were responding to COVID–19. We and local law and policy changes purposes. We would still require that believe that using CY 2020 optionally hospitals report the non-excepted data. implemented in response to COVID–19. reported data may not provide a For data which hospitals optionally However, we may determine that it nationally comparable assessment of report, we believe that the exception would be inappropriate to score such hospital performance for multiple granted for those programs with data data or base payment adjustments on it reasons. First, allowing hospitals the submission deadlines in April and May because of reliability concerns. For option to voluntarily submit for this 2020 (that is, data from the fourth illustrative purposes only, if a PHE period may introduce reporting bias; quarter of CY 2019) is distinct from the excepted enough quarters from the HAC that is, a bias introduced because, for exceptions granted because data Reduction Program’s 24-month example, only high performers and/or collected may be greatly impacted by performance period to lead to unreliable hospitals not impacted or better the response to COVID–19 (that is, data measure calculations, we might resourced would choose to submit data, from the first and second quarters of CY consider not scoring for the fiscal year which would render comparisons 2020). because the sample may not be large between hospitals with different enough to calculate reliable measure i. CY 2019 Fourth Quarter Data circumstances not in keeping with the results for scoring purposes. Although As described previously, we excepted program goal of national comparison. In the data itself may be accurate, the hospitals from the requirement to report addition, a number of other factors measure(s) may not meet the reliability fourth quarter CY 2019 data for the HAC could also contribute to our ability to standards because of the small sample Reduction Program to alleviate the accurately calculate a national of the remaining non-excepted part of reporting burden on hospitals that were comparison. For example, geographic the performance period. In addition, in responding to the PHE for COVID–19 differences in COVID–19 incidence rates the scenario we describe above, it is during the May 18, 2020 data and COVID–19 related hospitalizations likely that only larger hospitals would submission deadline. However, nearly and differences resulting from changes be able to meet the required case all hospitals (95.3 percent) reported in referral and hospitalization patterns minimums to be scored in the non- these data by the submission deadline, excepted part of the performance 19 CMS memorandum available at https:// period. We may conclude that only which reflects care provided prior to www.cms.gov/files/document/guidance-memo- January 27, 2020, which is the start of exceptions-and-extensions-quality-reporting-and- scoring those remaining large hospitals the PHE for COVID–19 under the value-based-purchasing-programs.pdf. will not produce an accurate national
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comparison of hospitals. Alternatively, determine the applicable period for April 1, 2020 through June 30, 2020 (Q2 if we do not extend the ECE to cover Q3 readmissions data collection, and we 2020) will be excluded from the and Q4 2020, it is possible that a interpreted the statute to allow us to measure calculations for the majority of providers may still submit determine that the period not include readmission measures used in the individual ECE requests for those times when hospitals may encounter program. We also advised that hospitals quarters and it is possible that so many extraordinary circumstances. This should be aware of the potential hospitals will submit individual ECE policy was similar to the ECE policy for subsequent impact to the HRRP requests that we will not be able to the Hospital Inpatient Quality Reporting minimum case threshold counts for produce a reliable national comparison. (IQR) Program, as initially adopted in inclusion in this program. In both cases, we are concerned about the FY 2012 IPPS/LTCH PPS final rule c. Update to the HRRP ECE Granted in using the measure calculated based on (76 FR 51651), and modified in the FY Response to the PHE for COVID–19 these data to score hospitals under the 2014 IPPS/LTCH PPS final rule (78 FR HAC Reduction Program and base 50836) and the FY 2015 IPPS/LTCH PPS We continue to believe that the payment adjustments on those scores. If final rule (79 FR 50277). readmissions claims data we have circumstances warrant, we may propose In the FY 2016 IPPS/LTCH PPS final excepted serve multiple purposes, to suspend prospective application of rule (80 FR 49542), we also stated that including allowing us to understand the program penalties or payment this policy would not preclude CMS impact of the PHE for COVID–19 on the adjustments through the annual IPPS/ from granting ECEs to hospitals that do quality of care provided to Medicare LTCH PPS proposed rule. However, in not request them if we determined at beneficiaries. However, we are the interest of time and transparency, our discretion that a disaster or other concerned that excess readmission we may provide subregulatory advance extraordinary circumstance has affected ratios calculated using excepted claims notice of our intentions to suspend such an entire region or locale. We noted that data could affect the national penalties and adjustments through if CMS made such a determination to comparability of these data due to the routine communication channels to grant an ECE to hospitals in an affected geographic differences of COVID–19 hospitals, vendors, and Quality region or locale, we would convey this incidence rates and hospitalizations Improvement Organizations (QIOs). The decision through routine along with different impacts resulting communications could include memos, communication channels to hospitals, from different state and local law and emails, and notices on the public vendors, and QIOs, including, but not policy changes implemented in QualityNet website (https:// limited to, issuing memos, emails, and response to COVID–19. Thus, the excess www.qualitynet.org/). We welcome notices on the QualityNet website. readmission ratios and payment public comments on our policy to In the 2018 IPPS/LTCH PPS final rule adjustments calculated from excepted exclude any data submitted regarding (82 FR 38239), we modified the data during the PHE for COVID–19 may care provided during the first and requirements for the HRRP ECE policy not provide a nationally comparable second quarter of CY 2020 from our to further align with the processes used assessment of performance in keeping calculation of performance for the FY by other QRP and VBP programs for with the program goal of national 2022 and FY 2023 program years. requesting an exception from program comparison. reporting due to an extraordinary i. CY 2019 Fourth Quarter Data 3. Update to the HRRP ECE Granted in circumstance not within a provider’s Response to the PHE for COVID–19 control. Data were not excepted from the fourth quarter of CY 2019 from the a. Background of the Hospital b. Background of the HRRP ECE Granted HRRP. The readmissions measures used Readmissions Reduction Program ECE for the PHE for COVID–19 to evaluate performance are claims- Policy On March 22, 2020, in response to based measures and do not require In the FY 2016 IPPS/LTCH PPS final COVID–19, CMS announced relief for hospitals to report data to CMS. rule (80 FR 49542 through 49543), we clinicians, providers, hospitals and Additionally, we believe that the quality adopted an ECE policy for the Hospital facilities participating in Medicare QRPs measure data regarding care provided Readmissions Reduction Program, and VBP programs.20 Specifically, we prior to the PHE would not be affected which recognized that there may be announced that we were granting ECEs by the PHE for COVID–19. periods of time during which a hospital for certain data reporting requirements is not able to submit all claims (from ii. CY 2020 First and Second Quarter and submission deadlines for the first Data which readmission measures data are and second quarters of CY 2020. On derived) in an accurate or timely fashion March 27, 2020, we published a In our application of the ECE policy due to an extraordinary circumstance supplemental guidance memorandum for the PHE for COVID–19, we excepted beyond its control. We noted that we that described the scope and duration of the use of claims data from the first and considered the feasibility and the ECEs we were granting under each second quarters of CY 2020 from the implications of excluding data for Medicare QRP and VBP program.21 HRRP because of our concern that the certain measures for a limited period of Under the ECE for the PHE for data collected during this period may be time from the calculations for a COVID–19 that we granted to all greatly impacted by the response to hospital’s excess readmissions ratios for hospitals subject to the HRRP, COVID–19, and therefore, may not be the applicable performance period. We qualifying claims from January 1, 2020 reflective of a hospital’s performance expressed that we hoped to minimize through March 31, 2020 (Q1 2020) and during this time due to concerns with data excluded from the program to national comparability, as described allow affected hospitals to continue to 20 CMS press release available at https:// above. Therefore, we believe that it participate in the HRRP for a given year www.cms.gov/newsroom/press-releases/cms- would be inappropriate to include if these hospitals otherwise continue to announces-relief-clinicians-providers-hospitals- claims data submitted regarding care meet applicable measure minimum and-facilities-participating-quality-reporting. provided during first and second quarter 21 CMS memorandum available at https:// threshold requirements. We further www.cms.gov/files/document/guidance-memo- CY 2020 in our calculation of a observed that section 1886(q)(5)(D) of exceptions-and-extensions-quality-reporting-and- hospital’s performance that assesses the Act permits the Secretary to value-based-purchasing-programs.pdf. their performance as compared to other
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hospitals in the nation to determine calculated based on these data to score cases and measures required to enable penalties for excess readmissions. hospitals under the HRRP and base us to calculate a TPS for that hospital Finally, although the ECE we granted payment adjustments on those scores. If for the applicable program year, the for HRRP has ended, with data circumstances warrant, we may propose hospital will be excluded from the collection and reporting requirements to suspend prospective application of Hospital VBP Program for the applicable having resumed July 1, 2020, we program penalties or payment program year. We also stated that a understand that geographic differences adjustments through the annual IPPS/ hospital that does not report the in COVID–19 incidence continue to LTCH PPS proposed rule. However, in minimum number of cases or measures change during the PHE for COVID–19. the interest of time and transparency, for a program year will not receive a 2 To maintain flexibility for addressing we may provide subregulatory advance percent reduction to its base operating the impact of COVID–19 on HRRP and notice of our intentions to suspend such diagnosis-related group (DRG) payment determine how best to implement the penalties and adjustments through amount for each discharge in the program equitably, we are announcing routine communication channels to applicable program year, and will also in this IFC that if, as a result of the facilities, vendors, and QIOs). The not be eligible to receive any value- extension of the ECE for the whole communications could include memos, based incentive payments for the country that we grant without a request emails, and notices on the public applicable program year. We referred or the submission of individual ECE QualityNet website (https:// readers to the FY 2020 IPPS/LTCH PPS requests, we do not have enough data to www.qualitynet.org/). final rule (84 FR 42399 through 42400) reliably measure national performance, We welcome public comments on our for the minimum number of measures we may propose to not score hospitals policy to exclude any data submitted and cases that we currently require based on such limited data or make the regarding care provided during first and hospitals to report in order to receive a associated payment adjustments to second quarter of CY 2020 from our TPS for a program year under the hospitals under the IPPS for the affected calculation of performance for FY 2022, Hospital VBP Program. FY 2023, and FY 2024. program year. If we grant another ECE b. Background of the Hospital VBP in the future, we would not require that 4. Update to the Hospital VBP Program Program ECE Granted in Response to the hospitals report the excepted data for ECE Granted in Response to the PHE for PHE for COVID–19 the duration of the ECE. Although a COVID–19 hospital may report data during the On March 22, 2020, in response to ECE, we may determine that such data a. Background of the Hospital VBP ECE COVID–19, CMS announced relief for will not be used for scoring purposes. Policy clinicians, providers, hospitals, and We would still require that hospitals In the FY 2014 IPPS/LTCH final rule facilities participating in Medicare QRPs report the non-excepted data. However, (78 FR 50704 through 50707), we and VBP programs.22 On March 27, we may determine that it would be finalized a disaster/ECE policy for the 2020, CMS published a supplemental inappropriate to score such data or base Hospital VBP Program. We stated that, guidance memorandum that described payment adjustments on it because of upon a hospital’s request, we will in more detail the scope and duration of reliability concerns. For illustrative consider providing an exception from the ECEs we were granting under each purposes only, if a PHE excepted the Hospital VBP Program requirements Medicare QRP and VBP program.23 enough quarters from the HRRP 36- to hospitals affected by natural disasters Specifically, we granted an ECE for month performance period to lead to or other extraordinary circumstances (78 the PHE for COVID–19 to all hospitals unreliable measure calculations, we FR 50704 through 50706). Specifically, participating in the Hospital VBP might consider not scoring for the entire we stated that we interpreted the Program for the following reporting year because the sample may not be minimum number of cases and requirements: large enough to calculate reliable measures requirement in sections • Hospitals will not be required to measure results for scoring purposes. 1886(o)(1)(C)(ii)(III) and (IV) of the Act report data for the NHSN HAI measures Although the data itself may be to not include any measures or cases for and Hospital Consumer Assessment of accurate, the measure(s) may not meet which a hospital has submitted data Healthcare Providers and Systems the reliability standards because of the during a performance period for which (HCAHPS) survey for the following small sample of the remaining non- the hospital has been granted a Hospital quarters: October 1, 2019 through excepted part of the performance VBP Program ECE. December 31, 2019 (Q4 2019), January 1, period. In addition, in the scenario we In the May 8th COVID–19 IFC (85 FR 2020 through March 31, 2020 (Q1 2020), describe above, it is likely that only 27550), we modified the Hospital VBP and April 1, 2020 through June 30, 2020 larger hospitals would be able to meet Program’s ECE policy to allow us to (Q2 2020). However, hospitals can the required case minimums to be grant ECE exceptions to hospitals which optionally submit part or all of these scored in the non-excepted part of the have not requested them when we data by the posted submission deadlines performance period. We may conclude determine that an extraordinary on the Hospital VBP Program that only scoring those remaining large circumstance that is out of their control, QualityNet site (available at https:// hospitals will produce an accurate such as an act of nature (for example, a www.qualitynet.org/inpatient/iqr/ national comparison of hospitals. hurricane) or PHE (for example, the participation). This includes the Alternatively, if we do not extend the COVID–19 pandemic), affects an entire following specific measures: ECE to cover Q3 and Q4 2020, it is region or locale, in addition to retaining ++ HCAHPS, NQF #0166. possible that a majority of providers the individual ECE request policy (85 may still submit individual ECE FR 27597 through 27598). We stated 22 CMS press release available at https:// requests for those quarters and it is that if we grant an ECE to hospitals www.cms.gov/newsroom/press-releases/cms- possible that so many hospitals will located in an entire region or locale announces-relief-clinicians-providers-hospitals- submit individual ECE requests that we under this revised policy and, as a result and-facilities-participating-quality-reporting. 23 of granting that ECE, one or more CMS memorandum available at https:// will not be able to produce a reliable www.cms.gov/files/document/guidance-memo- national comparison. In both cases, we hospitals located in that region or locale exceptions-and-extensions-quality-reporting-and- are concerned about using the measures does not report the minimum number of value-based-purchasing-programs.pdf.
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++ NHSN Catheter-Associated including allowing us to understand the making changes to the Hospital VBP Urinary Tract Infection (CAUTI) impact of COVID–19 on quality of care. Program ECE that we granted with Outcome Measure, NQF #0138. Furthermore, the HAI measures in the respect to these data for the PHE for ++ NHSN CLABSI Outcome Measure, Hospital VBP Program are not abstracted COVID–19 and will include all NQF #0139. from claims and are calculated based on voluntarily reported measure data for ++ NHSN Facility-wide Inpatient data submitted to the CDC through the the HCAHPS survey and the five NHSN Hospital-onset CDI Outcome Measure, NHSN. We recognize that the CDC HAI measures when we calculate NQF #1717. separately collects the same data for hospital TPSs for the FY 2021 program ++ NHSN Facility-wide Inpatient epidemiological surveillance and that year, as well as when we calculate Hospital-onset MRSA Bacteremia hospitals may have other reporting baseline data for the FY 2023 program Outcome Measure, NQF #1716. requirements which are not affected by year. Because we did not except fourth ++ American College of Surgeons— our ECE (for example, state quarter CY 2019 claims-based data for Centers for Disease Control and requirements). We are concerned with the Hospital VBP Program, we will also Prevention Harmonized Procedure SSI the national comparability of these data include those data when we calculate Outcome Measure, NQF #0753. due to the geographic differences of hospital TPSs for the FY 2021 through In the March 27, 2020 guidance, we COVID–19 incidence rates and FY 2024 program years and baseline also advised that hospitals should be hospitalizations along with different data for the FY 2026 through FY 2029 aware of the potential subsequent impacts resulting from different state program years. impact to its Hospital VBP Program and local law and policy changes minimum case threshold counts for implemented in response to COVID–19. ii. CY 2020 First and Second Quarter inclusion in that program, and that data For these reasons, and as discussed Hospital VBP Program Data from the impacted quarters for the more fully below, we are revising the We excepted hospitals from the HCAHPS survey and HAI measures current ECE we granted for the Hospital requirement to report all first and would be used if submitted voluntarily. VBP Program with respect to first and second quarter CY 2020 Hospital VBP • The ECE also stated that we would second quarter CY 2020 excepted data. Program data to alleviate the reporting exclude qualifying claims data from Under the revised ECE, we will not use burden on hospitals that were measure calculations for the following any first or second quarter CY 2020 responding to the PHE for COVID–19 quarters: January 1, 2020 through March excepted Hospital VBP data that and because we were concerned that the 31, 2020 (Q1 2020) and April 1, 2020 hospitals optionally reported to data collected during this period could through June 30, 2020 (Q2 2020). This calculate total performance scores for be greatly impacted by the response to exception applies to the following the FY 2022 through FY 2025 program COVID–19. Although we permitted measures: years or baseline scores for the FY 2024 hospitals to voluntarily report these ++ Medicare Spending Per through FY 2030 program years. We will data, we aim to have the most Beneficiary (MSPB)-Hospital, NQF still use optionally reported fourth representative comparison of hospital #2158. quarter CY 2019 Hospital VBP Program performance as possible and do not ++ Hospital 30-Day, All Cause, Risk- data to calculate TPSs for those Standardized Mortality Rate Following hospitals for the FY 2021 through FY wish to unfairly penalize hospitals that Acute Myocardial Infarction (AMI) 30- 2024 program years and baseline scores were responding to COVID–19. We Day Mortality Rate, NQF #0230. for the FY 2026 through FY 2029 believe that using first and second ++ Hospital 30-Day, All Cause, Risk- program years because, as explained quarter CY 2020 optionally reported Standardized Mortality Rate Following below, we believe that the exception data may not provide an accurate Heart Failure (HF) 30-Day Mortality granted for those programs with data national assessment of hospital Rate, NQF #0229. submission deadlines in April and May performance for multiple reasons. First, ++ Hospital 30-Day, All Cause, Risk- 2020 (that is, data from the fourth if only the optionally submitted data is Standardized Mortality Rate Following quarter of CY 2019) is distinct from the used, it may not provide an accurate Pneumonia (PN) 30-Day Mortality Rate, exceptions granted because data national comparison as it is possible NQF #0468. collected may be greatly impacted by that there may be reporting bias ++ Hospital-Level Risk-Standardized the response to COVID–19 (that is, data introduced by voluntary submission. Complication Rate Following Total Hip from the first and second quarters of CY Reporting bias could be introduced if, Arthroplasty (THA)/Total Knee 2020). for example, only high performers and/ Arthroplasty Complication Rate (TKA), or hospitals not impacted or better i. CY 2019 Fourth Quarter Hospital VBP NQF #1550. resourced would choose to submit data, ++ Hospital 30-Day, All Cause, Risk- Program HAI and HCAHPS Data hindering comparisons between Standardized Mortality Rate Following We excepted hospitals from the hospitals with different circumstances Chronic Obstructive Pulmonary Disease requirement to report fourth quarter CY and preventing the program from (COPD) 30-Day Mortality Rate, NQF 2019 HAI and HCAHPS data for the keeping with its goal of national #1893. HVBP Program to alleviate the reporting comparison. A number of other factors ++ Hospital 30-Day, All Cause, Risk- burden on hospitals that were could also contribute to CMS’ ability to Standardized Mortality Rate Following responding to the PHE for COVID–19 generate an accurate national Coronary Artery Bypass Grafting that would otherwise be required to comparison. For example, geographic (CABG) 30-Day Mortality Rate, NQF report these data by the May 18, 2020 differences in COVID–19 incidence rates #2558. and April 1, 2020 submission deadlines, and COVID–19 related hospitalizations respectively. However, we believe that and differences resulting from changes c. Update to the Hospital VBP ECE the quality measure data regarding care in referral and hospitalization patterns Granted in Response to the PHE for provided prior to the PHE for COVID– could both impact the national COVID–19 19 would not be affected. Additionally, comparability of optionally submitted We continue to believe that the as of April 2020, 92.6 percent of data. We believe that it would be Hospital VBP Program data we have hospitals submitted fourth quarter CY inappropriate to include optionally excepted serves multiple purposes, 2019 HAI data. Therefore, we are not submitted data regarding care provided
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during first and second quarter CY 2020 national comparison of hospitals. of the extraordinary circumstance in its in our calculation of a hospital’s TPS. Alternatively, if we do not extend the request, along with any available Accordingly, for these reasons, we ECE to cover Q3 and Q4 2020, it is evidence of the extraordinary will not use any first or second quarter possible that a majority of hospitals may circumstance, and if approved, we CY 2020 excepted Hospital VBP data to still submit individual ECE requests for would exclude the corresponding calculate total performance scores for those quarters and it is possible that so calendar months from that SNF’s the FY 2022 through FY 2025 program many hospitals will submit individual measure rate for the applicable years or baseline scores for the FY 2024 ECE requests that we will not be able to measurement period and by extension, through FY 2030 program years to avoid produce a reliable national comparison. its SNF performance score for unfairly penalizing hospitals. In both cases, we are concerned about applicable fiscal years. We noted that Finally, although the ECE we granted using the measures calculated based on this policy does not preclude us from for the Hospital VBP Program has these data to score facilities under the granting exceptions to SNFs that have ended, with data collection and Hospital VBP Program and base not requested them when we determine reporting requirements having resumed payment adjustments on those scores. that an extraordinary circumstance, July 1, 2020, we understand that At this time, we are not applying this such as an act of nature or PHE, affects geographic differences in COVID–19 updated ECE policy to the Hospital VBP an entire region or locale. incidence continue to change during the Program. If circumstances warrant, we We also finalized under the SNF VBP PHE for COVID–19. To maintain may propose to suspend prospective Program ECE policy that we would flexibility for addressing the impact of application of program penalties or score any SNFs receiving ECEs on COVID–19 on the Hospital VBP Program payment adjustments through the achievement and improvement for any and determine how best to implement annual IPPS/LTCH PPS proposed rule. remaining months during the the program equitably, we are However, in the interest of time and performance period, provided the SNF announcing in this IFC that if, as a transparency, we may provide had at least 25 eligible stays during both result of the extension of the ECE for the subregulatory advance notice of our of those periods. As an example, we whole country that we grant without a intentions to suspend such penalties stated that if a SNF received an request or the submission of individual and adjustments through routine approved ECE for 6 months of the ECE requests, we do not have enough communication channels to facilities, performance period, we would score the data to reliably measure national vendors, and QIOs. The SNF on its achievement during the performance, we may propose to not communications could include memos, remaining 6 months on the Program’s score hospitals based on such limited emails, and notices on the public measure as long as the SNF met the 25 data or make the associated payment QualityNet website (https:// eligible stay threshold during the adjustments to facilities under the www.qualitynet.org/). We welcome performance period. We also stated that Hospital VBP Program for the affected public comments on our updated under this example, we would score the program year. If we grant another ECE Hospital VBP Program ECE policy to SNF on improvement as long as it met in the future, we would not require that exclude any data submitted regarding the proposed 25 eligible stay threshold hospitals report the excepted data for care provided during the first and during the applicable baseline period. the duration of the ECE. Although a second quarter of CY 2020 from our hospital may voluntarily report data calculation of performance. b. Background of the SNF VBP Program during the ECE, we may determine that ECE Granted for the PHE for COVID–19 it would be inappropriate to use such 5. Revised Performance Period for the FY 2022 SNF VBP Program as a Result On March 22, 2020, in response to the data for scoring purposes. We would PHE for COVID–19,24 we announced still require that hospitals report the of the ECE Granted for the PHE for COVID–19 relief for clinicians, providers, hospitals non-excepted data. However, we may and facilities participating in Medicare determine that it would be In this IFC, we are revising the QRPs and VBP programs. On March 27, inappropriate to score such data or base performance period for the FY 2022 2020, we published a supplemental payment adjustments on it because of SNF VBP Program because, as explained guidance memorandum that described reliability concerns. For example, if we more fully below, we are concerned that in more detail the scope and duration of granted an ECE that excepted hospitals using qualifying claims from the two the ECEs we were granting under each from the requirement to report data for quarters that are not excepted under the Medicare QRP and VBP program.25 11 of the 12 months of a given ECE for COVID–19 (October 1, 2019 Under the ECE, SNFs qualifying performance period, we would consider through December 31, 2019 (Q4 2019), claims are excepted from the calculation not scoring or applying payment and July 1, 2020 through September 30, of the SNF 30-Day All-Cause adjustments for the associated program 2020 (Q3 2020)) for all SNFs nationwide Readmission Measure (SNFRM; NQF year because data from the one non- to calculate the SNFRM for the FY 2022 #2510) for the following periods: excepted month may not be large Program will not yield measure scores • January 1, 2020–March 31, 2020 enough to calculate reliable measure that reliably reflect quality of care as (Q1 2020). results. Although the data itself may be determined by hospital readmission • April 1, 2020–June 30, 2020 (Q2 accurate, the measure(s) may not meet rates. We are also announcing that we 2020). the reliability standards because of the may propose to update the SNF VBP We refer readers to the March 22 and small sample of the remaining non- ECE policy for future ECEs that may be March 27, 2020 guidance memos for excepted part of the performance granted during the PHE for COVID–19. additional information regarding period. In addition, in the scenario we a. Background of the SNF VBP ECE describe above, it is plausible that only 24 Policy CMS press release available at https:// larger hospitals would be able to meet www.cms.gov/newsroom/press-releases/cms- the required case minimums to be In the FY 2019 SNF PPS final rule (83 announces-relief-clinicians-providers-hospitals- scored in the non-excepted part of the FR 39280 through 39281), we finalized and-facilities-participating-quality-reporting. 25 CMS memorandum available at https:// performance period. We may conclude an ECE policy for the SNF VBP Program. www.cms.gov/files/document/guidance-memo- that only scoring those remaining large We stated that a SNF requesting an ECE exceptions-and-extensions-quality-reporting-and- hospitals will produce an accurate would indicate the dates and duration value-based-purchasing-programs.pdf.
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exceptions related to the PHE for remaining non-excepted data or base d. Revised Performance Period for the COVID–19. payment adjustments on it because of FY 2022 SNF VBP Program We continue to believe that the claims reliability concerns. For example, if we The performance period for the FY data we have excepted serves multiple granted an ECE that excepted, for all 2022 SNF VBP Program is FY 2020 (84 purposes, including allowing us to facilities nationwide, the use of claims FR 38822). The ECE for the PHE for understand the impact of the PHE for data for 11 of the 12 months of a given COVID–19 excepts 6 months of claims COVID–19 on the quality of care performance period, we would consider data from the calculation of the SNFRM provided to Medicare beneficiaries. not scoring or applying payment during the performance period of the FY However, we excepted claims data from adjustments for the associated program 2022 SNF VBP Program. the first and second quarters of CY 2020 year because data from the one non- We are concerned that using from the SNF VBP Program because of excepted month may not be large qualifying claims during only the our concern that the data reliability enough to calculate reliable measure remaining 6 months of FY 2020 during this period may be greatly results for scoring purposes. Although (October 1, 2019 through December 31, impacted by the response to COVID–19. the data itself may be accurate, the 2019 (Q4 2019), and July 1, 2020 We are also concerned with the national measure(s) may not meet the reliability through September 30, 2020 (Q3 2020)) comparability of these data due to the standards because of the small sample for all SNFs nationwide to calculate the geographic differences of COVID–19 of the remaining non-excepted part of SNFRM for the FY 2022 Program will incidence rates and hospitalizations the performance period. In addition, in not yield measure scores that reliably along with different impacts resulting the scenario we describe above, it is reflect quality of care as determined by from different state and local law and likely that only larger facilities would be hospital readmission rates because the policy changes implemented in able to meet the required minimum reliability of the SNFRM rate is related response to COVID–19. Therefore, we number of eligible SNF stays to be to sample size. We distinguish between believe that it would be inappropriate to scored in the non-excepted part of the ECEs that grant exceptions for a limited include data submitted regarding care performance period. We may conclude number of SNFs on a case-by-case basis provided during first and second quarter that only scoring those remaining large (that is, if a SNF submits an ECE form CY 2020 in our calculation of a SNF’s facilities will not produce an accurate with appropriate supporting evidence), performance score. However, by national comparison of SNFs. which would yield an acceptable excluding 6 months of qualifying claims Alternatively, if we do not extend the reflection of those SNFs’ performance, in CY 2020 (January 1, 2020 through and blanket ECEs that grant exceptions June 30, 2020) for all SNFs nationally, ECE to cover Q3 and Q4 2020, it is possible that a majority of SNFs may for all SNFs nationwide, which may this policy will impact the performance decrease the likelihood that measure period (October 1, 2019 through still submit individual ECE requests for those quarters and it is possible that so performance would reflect the quality of September 30, 2020) for the FY 2022 care across a large number of SNFs. SNF VBP Program Year by reducing the many SNFs will submit individual ECE requests that we will not be able to Furthermore, the NQF endorsed the total amount of data available to SNFRM as a one-year measure.26 In line evaluate SNF performance. Accordingly, produce a reliable national comparison. In both cases, we are concerned about with NQF endorsement, the as discussed below, we are finalizing in performance period and baseline period this IFC a new performance period for using the measures calculated based on these data to score facilities under the SNFRM rate for a program year has been the FY 2022 SNF VBP that we believe calculated based on one year of data will more reliably reflect SNF SNF VBP Program and base payment adjustments on those scores. At this since the Program’s inception. Our performance and quality of care internal analysis indicates that provided to Medicare beneficiaries. time, we are not applying this updated ECE policy to the SNF VBP Program. calculating the SNFRM based on 6 In addition, although the ECE we months data for all SNFs nationwide granted for the SNF VBP Program has Rather, as described in detail in the next section, we are revising the performance would decrease the SNFRM’s reliability ended, and data collection resumed July by approximately one-third compared to 1, 2020, we understand that geographic period of the FY 2022 SNF VBP Program to include data from: April 1, 2019 calculating the SNFRM based on one differences in COVID–19 incidence year of data, resulting in unacceptably continue to change during the PHE for through December 31, 2019 and July 1, low measure reliability. This situation COVID–19. To maintain flexibility for 2020 through September 30, 2020. differs from, for example, calculating addressing the impact of COVID–19 on However, if at a future date if the SNFRM based on 6-months of data the SNF VBP Program and determine circumstances warrant, we may propose for only several SNFs, which would not how best to implement the program to suspend prospective application of meaningfully impact the SNFRM’s equitably, we are announcing in this IFC program penalties or payment reliability and would not impact the that if, as a result a ECE that we grant adjustments through the annual SNF vast majority of SNFs whose SNFRM for the whole country without a request PPS proposed rule. However, in the rate would still be calculated based on or the submission of individual ECE interest of time and transparency, we one year of data. We do not believe it requests, we do not have enough SNF may provide subregulatory advance VBP Program data to reliably measure notice of our intentions to suspend such is appropriate to calculate the SNFRM national performance, we may propose penalties and adjustments through in such a way that does not align with to not score facilities based on such routine communication channels to NQF endorsement and may decrease the limited data or make the associated facilities, vendors, and QIOs. The likelihood that the SNFRM reliably payment adjustments to facilities under communications could include memos, reflects the quality of care provided by the SNF PPS for the affected program emails, and notices on the public CMS those SNFs. Therefore, we are revising year. If we grant another ECE in the website (https://www.cms.gov/ the performance period for the FY 2022 future, we would not use claims data Medicare/Quality-Initiatives-Patient- SNF VBP Program. The revised submitted to CMS during the ECE for Assessment-Instruments/Value-Based- 26 From https://www.qualityforum.org/Measures_ scoring purposes under the SNF VBP Programs/SNF-VBP/SNF-VBP-Page) or, Reports_Tools.aspx, click ‘‘NQF-Endorsed program. We may determine that it if time allows, through the annual SNF Measures (QPS)’’ under ‘‘Find Measures’’ then would be inappropriate to score PPS proposed rule. search ‘‘2510’’ to view the SNFRM.
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performance period for the FY 2022 information on those performance the delay in non-essential procedures as SNF VBP program will include data periods. noted above, we are not enforcing the from: April 1, 2019 through December The baseline period of the FY 2022 procedural volume requirements 31, 2019 and July 1, 2020 through Program has not been impacted by the contained in the four NCDs noted above September 30, 2020. We note that this PHE for COVID–19 and will remain as for facilities and practitioners that, prior 12-month period includes 6 months of FY 2018 (October 1, 2017 through to the PHE for COVID–19, met the FY 2019 data and 6 months FY 2020 September 30, 2018), and the FY 2022 volume requirements. This enforcement data, but does not include the 6 months Program performance standards discretion applies only during the of data that we excepted for the SNF included in the FY 2020 final rule (84 period of the PHE for COVID–19 and VBP Program under the ECE for the PHE FR 38822 through 38823) will remain as ensures that beneficiaries will continue for COVID–19. Eligible SNF stays with finalized. to have access to the services that are admissions during this revised 12- We welcome public comments covered under the NCD. month period, April 1, 2019 through regarding our policy to revise the FY Please note that all other coverage December 31, 2019 and July 1, 2020 2022 SNF VBP Program performance requirements under these NCDs remain through September 30, 2020, will be period to April 1, 2019 through in effect. included in performance period SNFRM December 31, 2019 and July 1, 2020 through September 30, 2020. F. Limits on COVID–19 and Related calculations for the FY 2022 SNF VBP Testing Without an Order and Program. We believe using data from E. NCD Procedural Volumes for Expansion of Testing Order Authority these two periods, which combines 9 Facilities and Practitioners To Maintain In this IFC, we are establishing that months of data prior to the start of the Medicare Coverage one COVID–19 diagnostic test and one PHE for COVID–19 and 3 months of data National Coverage Determinations of each other related test (as listed in the after the end of the ECE we granted for (NCDs) are determinations by the May 8th COVID–19 IFC) without an this program, will provide sufficiently Secretary with respect to whether or not order from a physician or other reliable data for evaluating SNF a particular item or service is covered practitioner is reasonable and necessary performance that can be used for FY nationally under title XVIII of the Act. for Medicare payment purposes. For the 2022 scoring. We selected this Some NCDs include procedural volume COVID–19 and other related diagnostic performance period data as it was the requirements that facilities and/or tests for which an order is required, we most operationally feasible, did not use practitioners must meet as conditions of are also establishing a policy whereby data from FY 2018 (the baseline period coverage for specific items and services. tests can be covered when ordered by a for the SNF VBP FY 2022 program year), If those volume requirements are not pharmacist or other healthcare and provided the least overlap with satisfied, Medicare payment would not professional who is authorized to order performance periods for other program be permitted. On March 18, 2020, CMS diagnostic laboratory tests in accordance years. encouraged hospitals and practitioners with state scope of practice and other We are aware that the revised to delay certain non-essential pertinent laws. performance period for the FY 2022 procedures due to the COVID–19 In the May 8th COVID–19 IFC, CMS Program overlaps with the performance pandemic.27 On June 9, 2020, as stated that, given the critical importance period of the FY 2021 Program (FY coronavirus disease-related healthcare of expanding COVID–19 testing to 2019) by 6 months. However, in order demand decreased, CMS found it was combat the pandemic and the to ensure that 12 months of claims data important to safely resume care to treat heightened risk that the disease presents are used to calculate the SNFRM, we ongoing health needs that had been to Medicare beneficiaries during the believe that this is the most feasible postponed and issued guidance that PHE for COVID–19, Medicare would not option. We also note that although April hospitals could resume providing these require an order from a physician or 1, 2019 through September 30, 2019 services.28 Even so, as a result of the other applicable practitioner for data would be used for two different PHE for COVID–19, hospitals and COVID–19 testing. We amended our program years (FY 2021 and FY 2022), practitioners have performed fewer non- regulation at 42 CFR 410.32(a) to October 1, 2019 through December 31, essential procedures for several months remove the requirement that otherwise 2019 and July 1, 2020 through and as a result may not be able to meet covered COVID–19 diagnostic September 30, 2020 data would only be certain procedural volume requirements laboratory tests are covered only based used for the FY 2022 program year. that are set forth in these NCDs. on the order of a treating physician or Beginning with the FY 2023 program Four NCDs set forth such procedural other practitioner.29 In addition, we volume requirements. These NCDs are: removed the ordering requirement for year, the performance period will be FY • 2021, consistent with our previously NCD 20.34 Percutaneous Left Atrial coverage of a diagnostic laboratory test Appendage Closure (LAAC). finalized policy. Furthermore, we note for influenza virus and respiratory • NCD 20.32 Transcatheter Aortic that historically there has been an syncytial virus, a type of common Valve Replacement (TAVR). respiratory virus, but only when these instance of overlapping data during • NCD 20.33 Transcatheter Mitral performance periods of the SNF VBP tests are furnished in conjunction with Valve Repair (TMVR). a COVID–19 diagnostic laboratory test Program; when the SNF VBP Program • NCD 20.9.1 Ventricular Assist as medically necessary in the course of transitioned from using CY to FY data Devices (VADs). for calculating the performance period, Because of the disruption in the establishing or ruling out a COVID–19 the performance period of the FY 2019 healthcare delivery system, including diagnosis. We also noted that FDA- SNF VBP Program (CY 2017) overlapped authorized COVID–19 serology tests are with the performance period of the FY 27 https://www.cms.gov/newsroom/press-releases/ included as covered tests during the 2020 SNF VBP Program (FY 2018) by 3 cms-releases-recommendations-adult-elective- PHE for COVID–19, as they are months (October 1, 2017 through surgeries-non-essential-medical-surgical-and- December 31, 2017). We refer readers to dental. 29 The list of COVID–19, Influenza, and RSV 28 https://www.cms.gov/files/document/covid- clinical diagnostic laboratory tests is available at the FY 2018 SNF PPS final rule (82 FR recommendations-reopening-facilities-provide-non- https://www.cms.gov/files/document/covid-ifc-2- 36613 through 36614) for additional emergent-care.pdf. flu-rsv-codes.pdf.
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reasonable and necessary under section testing without an order from a theft. In addition, if Medicare denies the 1862(a)(1)(A) of the Act for beneficiaries physician, practitioner, or other claim for an unapproved test, the with a known current or known prior healthcare professional. Our beneficiary could be responsible for the COVID–19 infection or a suspected determination to revise the May 8th IFC cost. The availability of broad COVID– current or suspected prior COVID–19 policy is due both to the significant 19 and related testing without an order infection. potential for fraud, waste, and abuse, as significantly increases the risk and In this IFC, we are revising the well as public health and safety issues scope of these fraud schemes, leading previous policy adopted in the May 8th that would arise from beneficiaries not only to considerable risk to taxpayer COVID–19 IFC, which allowed for broad being subjected to repeated testing dollars, but also potential physical and coverage of multiple instances of without proper medical attention or financial harm to Medicare COVID–19 testing for a single oversight, including public health issues beneficiaries. beneficiary without a physician or other with the ongoing spread of COVID–19, In addition to our concerns about practitioner order, by establishing that as outlined by CDC guidance on specific previous laboratory schemes being one single COVID–19 diagnostic test patient categories 31 that has been applied to COVID–19 testing itself, the and one of each other related test (as published in the May 8th COVID–19 risk is exacerbated by the ability of the listed in the May 8th COVID–19 IFC) IFC. laboratory to perform add-on tests, such without an order from a physician or First, laboratory testing has been a as to confirm or rule-out diagnoses other other practitioner is reasonable and significant source of fraud and abuse in than COVID–19. The HHS–OIG has necessary. This limitation on tests the Medicare program. In one recent recognized that ‘‘[r]elaxation of the without a physician/other practitioner example from September 2019, CMS, [ordering] rules could allow order will apply beginning on the along with our law enforcement unscrupulous actors more leeway for effective date of this rule, and any tests partners, undertook a landmark fraudulent billing of unnecessary add- furnished prior to the effective date will investigation and prosecution of on testing,’’ and announced in June not be considered for purposes of this fraudulent genetic cancer testing, 2020 that it was undertaking a trend limit on tests without a physician or resulting in charges against 35 analysis for potential fraud and abuse other practitioner order. In other words, defendants associated with dozens of with COVID–19 add-on testing.34 if a beneficiary received a test or telemedicine companies and cancer In addition to our concerns about multiple tests without an order before genetic testing laboratories for their potential fraud, we believe that broad the effective date of this rule, these tests alleged participation in one of the COVID–19 testing without the order of would not count toward the limit of one largest healthcare fraud schemes ever any healthcare professional—including test without a physician or other charged. According to the charges, the testing for the related conditions practitioner order under this rule. We defendants fraudulently billed Medicare identified in the May 8th COVID–19 believe that this approach will provide for genetic testing, using telemarketers IFC—may result in a beneficiary not sufficient notice for laboratories to set to make phone calls and other receiving the medical attention and up the systems and processes necessary unsolicited contacts with Medicare oversight required to ensure that to require an order beyond one test. For beneficiaries to fraudulently bill more diagnosis and treatment is applied the COVID–19 and other related than $2.1 billion to the Medicare consistent with CDC guidelines and diagnostic tests for which an order is program.32 other medical standards. Allowing required, we are also establishing a We have already found that similar testing to occur without proper medical policy whereby the tests can be covered schemes are occurring whereby attention or oversight can lead to direct when ordered by a pharmacist or other fraudulent laboratories and or indirect harm to beneficiaries, their healthcare professional who is telemarketing companies are directly families and their contacts, from a authorized to order diagnostic contacting beneficiaries, oftentimes variety of perspectives, including the laboratory tests in accordance with state using stolen identifying information, to fact that the beneficiary may not receive scope of practice and other pertinent solicit items and services payable by complete and accurate information on laws. Medicare under the guise of COVID–19 how the test results should be Just as the previous policy was treatment or prevention. An HHS Office interpreted and acted upon (for developed based on what was known of Inspector General (HHS–OIG) fraud example, contact tracing and public about COVID–19 at the time, as alert 33 describes situations in which health precautions) and how the additional information has become scammers are offering unapproved and beneficiary should be monitored in the available, policies require modification. illegitimate COVID–19 tests and other case of a positive test. This approach is consistent with the services to Medicare beneficiaries in Of the nearly 1.9 million beneficiaries CDC’s introductory statement in its July exchange for personal details, including who have been tested, approximately 83 2, 2020 testing guidance that Medicare information. However, the percent have had only one test ‘‘recommendations for SARS–CoV–2 services are unapproved and performed. However, claims data from testing have been developed based on illegitimate. Fraudsters are targeting the past 8 months have shown that the what is currently known about COVID– beneficiaries in a number of ways, number of beneficiaries receiving more 19 and are subject to change as including telemarketing calls, text than one COVID–19 test has been additional information becomes messages, social media platforms, and increasing. While we do not have data available.’’ 30 Whereas we are door-to-door visits. The personal to examine whether these tests are being committed to reducing impediments to information collected can be used to performed without a physician or other access to COVID–19 testing and the fraudulently bill federal healthcare practitioner order, we expect the other related tests identified in the May programs and commit medical identity proportion of beneficiaries who are 8th COVID–19 IFC, we believe that it is tested more than once to increase over contrary to the public interest to allow 31 https://www.cdc.gov/coronavirus/2019-ncov/ time until a vaccine or other hcp/testing-overview.html. open-ended coverage of COVID–19 32 https://oig.hhs.gov/newsroom/media-materials/ containment strategy is available to 2019/geneticscam/index.asp. 30 https://www.cdc.gov/coronavirus/2019-ncov/ 33 https://oig.hhs.gov/coronavirus/fraud-alert- 34 https://oig.hhs.gov/reports-and-publications/ hcp/testing-overview.html. covid19.asp. workplan/summary/wp-summary-0000489.asp.
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meaningfully reduce the risk of COVID– resume elective procedures, and that the Through counseling, health care 19. We believe that allowing Medicare nation can continue steps to reopen the providers can discuss with patients: (1) payment for one test without an order economy. The signs and symptoms of COVID–19; will allow beneficiaries access to urgent We remain committed to ensuring (2) the immediate need to separate from testing, as we outlined in the May 8th beneficiaries have access to needed others by isolation, particularly while COVID–19 IFC, yet also provide testing services, and to the medical awaiting test results; (3) the importance sufficient opportunity for beneficiaries oversight required to address this of informing close contacts of the person to seek out the medical care needed to complex pandemic. First, we note that being tested (for example, family ensure that the test results are our numerous provisions enhancing members) to separate from the patient interpreted and acted upon access to and use of telehealth and other awaiting test results; (4) the fact that if appropriately, both from the perspective communications technology-based the patient tests positive, the patient of the individual beneficiary and also in services (CTBS) have enabled will be contacted by the public health the context of the area of the country in beneficiaries to overcome some of the department to learn the names of the which the beneficiary is located. obstacles associated with seeking care in patient’s close contacts; and (5) the While some areas of the country physician offices and other medical services that may be available to assist continue to have minimal impact from facilities during the PHE for COVID–19. the patient in successfully isolating at the disease or are seeing the COVID–19 The telehealth and CTBS flexibilities home. infection curve flattening, other areas have provided a modernized framework We also believe that pharmacists and are seeing a resurgence. Executing an for care delivery, including the ability other healthcare professionals play an effective, regional response to COVID– for clinicians to remotely assess the important role in the response to the 19 disease requires coordinated effort medical condition of patients and PHE for COVID–19, and we explicitly and guidance by qualified medical determine the need for COVID–19 clarified in the May 8th COVID–19 IFC professionals who know how to testing and perform related clinical that pharmacists fall within the interpret and react to testing results. oversight, which takes advantage of regulatory definition of auxiliary Recent experience with this disease has modern technology while addressing personnel under our regulation at also demonstrated that substantial the health needs of the Medicare § 410.26. As such, pharmacists may COVID–19 transmission occurs from beneficiary population. provide services incident-to the infectious individuals both with and In addition, in our March 31st professional services, and under the without symptoms, and that isolation of COVID–19 IFC, we established payment appropriate level of supervision, of the infected persons has been identified as policies to provide specimen collection billing physician or practitioner, if a key strategy for preventing further fees for independent laboratories payment for the services is not made spread of COVID–19. Testing without collecting specimens from beneficiaries under the Medicare Part D benefit. This healthcare oversight can lead to a who are homebound or non-hospital includes providing the services incident bypassing of risk-stratified protocols for inpatients for COVID–19 testing during to the services of the billing physician management of negative COVID–19 test the PHE for COVID–19. In our May 8th or practitioner and in accordance with results. A negative test does not rule out COVID–19 IFC, we also established the pharmacist’s state scope of practice the disease; if a physician or other payment mechanisms for specimen and applicable state law. We believe appropriate healthcare professional collection for COVID–19 testing under this clarification may encourage suspects a patient may have COVID–19 the Physician Fee Schedule (PFS) and pharmacists to work with physicians based on symptoms or other factors, OPPS during the PHE for COVID–19. To and other applicable practitioners in infection control measures should be help ensure that laboratories located in new ways that expand the availability of implemented regardless of test results. the United States wishing to perform health care services during the PHE for For example, isolation of persons COVID–19 testing that are applying for COVID–19. One service that may be infected with SARS–CoV–2, the virus a CLIA certificate are able to begin rendered in accordance with these that causes COVID–19, is a key strategy testing as quickly as possible during the authorities is an assessment and for preventing further spread of COVID– PHE for COVID–19, we have also specimen collection for COVID–19 19. In fact, when infected individuals reviewed our regulations (42 CFR part testing. Specifically, we stated in the are separated from others while 493) and our procedures to expedite May 8th COVID–19 IFC that CPT code awaiting their test results, transmission review of applications for a CLIA 99211 can be billed for both new and is reduced much more than when certificate. We are committed to taking established patients for the duration of individuals are not separated. By having critical steps to ensure Medicare the PHE for COVID–19, when the patients isolated one to two days earlier, beneficiaries are able to access safe and services described by that code for a spread of COVID–19 can be reduced level 1 E/M visit are furnished for the 35 reliable COVID–19 and related testing. significantly. When a physician or CMS and CDC are also taking steps to purpose of a COVID–19 assessment and other health care provider is able to ensure that physicians and other specimen collection. These services can counsel patients who are being tested practitioners who counsel patients on be billed as services provided by for COVID–19, beneficiaries may be COVID–19 testing are paid for these auxiliary clinical staff, including more likely to isolate or quarantine services. On July 30, 2020, CMS and pharmacists, if those staff meet all of the themselves more quickly, which may CDC announced that payment is requirements to furnish services as reduce transmission in the community. available to practitioners and suppliers ‘‘incident to,’’ as described in § 410.26 Self-quarantine for those who may be to counsel patients, at the time of of our regulations and in our frequently infectious is also a key element to COVID–19 testing, about the importance asked questions document discussing 37 ensuring that health care providers and of self-isolation after they are tested and virtual supervision. suppliers are able to continue to safely prior to the onset of symptoms.36 To further ensure that beneficiaries provide COVID–19-related and non- continue to have access to appropriate COVID–19 essential care, patients can 36 https://www.cms.gov/newsroom/press-releases/ COVID–19 testing even when some cms-and-cdc-announce-provider-reimbursement- 35 https://www.cms.gov/files/document/ available-counseling-patients-self-isolate-time- 37 https://www.cms.gov/files/document/ se20011.pdf. covid-19. 03092020-covid-19-faqs-508.pdf.
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professional care is not separately amending the regulation so the orders of qualified health plans (QHPs), and other billable under Medicare, we are pharmacists and other practitioners that components of title I of the PPACA. establishing a policy whereby otherwise are allowed to order laboratory tests in Section 1321(a)(1) of the PPACA directs covered COVID–19 and specified related accordance with state scope of practice the Secretary to issue regulations that tests ordered by pharmacists and other and other pertinent laws can fulfill the set standards for meeting the healthcare professionals who are requirements related to orders for requirements of title I of the PPACA for, authorized to order diagnostic covered COVID–19 tests for Medicare among other things, the establishment laboratory tests in accordance with state patients. We note that Medicare and operation of Exchanges. scope of practice and other pertinent continues to cover other medically Section 1321(d) of the PPACA laws are covered for the duration of the necessary clinical diagnostic laboratory provides that nothing in title I of the PHE for COVID–19. Under this policy, tests when a treating physician or other PPACA must be construed to preempt an otherwise covered COVID–19 test practitioner orders them, and that other any state law that does not prevent the (and other related tests, as specified on Medicare conditions of coverage and application of title I of the PPACA. the CMS website) is considered payment continue to apply, including Section 1311(k) of the PPACA specifies reasonable and necessary during the any applicable local coverage that Exchanges may not establish rules PHE for COVID–19 if ordered by a determinations. that conflict with or prevent the pharmacist or other healthcare The policies described in this section application of regulations issued by the professional who is practicing in apply to the Medicare program only. Secretary. accordance with applicable state scope Coverage policies for COVID–19 testing Section 1343 of the PPACA of practice laws. Because pharmacists for group health plans and health establishes an annual permanent risk and certain other healthcare insurance issuers offering group and adjustment program to provide professionals are not considered to be individual health insurance coverage payments to health insurance issuers physicians or practitioners under the are generally governed by other rules of that attract higher-than-average risk Medicare statute, they cannot be paid other federal agencies and/or HHS and populations, such as those with chronic directly under the Medicare program; states. States administer the Medicaid conditions, funded by payments from therefore, pharmacists and other program and the Children’s Health those that attract lower-than-average auxiliary personnel still need to be Insurance Program (CHIP) subject to risk populations, thereby reducing functioning in an incident-to federal requirements, and therefore, incentives for issuers to avoid higher- arrangement with a physician or non- have significant responsibility for risk enrollees. Consistent with section physician practitioner for the services establishing coverage and payment 1321(c)(1) of the PPACA, the Secretary they provide to be paid by Medicare policies for those programs, within is responsible for operating the risk under Part B for the front-end federal parameters. adjustment program on behalf of any assessment and specimen collection state that does not elect to do so. We G. Recognizing Temporary Premium associated with the order, as described established the framework for the risk Credits as Premium Reductions above. However, we believe this interim adjustment program in a final rule, ordering policy is appropriate during 1. Background published in the March 23, 2012 Federal Register (77 FR 17219) the duration of the PHE for COVID–19 Title I of the Health Insurance to ensure adequate access to testing as (Premium Stabilization Rule), and first Portability and Accountability Act of established the federally-certified risk permitted under state scope of practice 1996 (HIPAA) (Pub. L. 104–191, enacted and other applicable laws. adjustment methodologies and other on August 21, 1996) added a new title parameters related to the risk With this IFC, we are amending our XXVII to the PHSA to establish various regulation at § 410.32(a)(3) to state that, adjustment program applicable to the reforms to the group and individual 2014 benefit year in the 2014 Payment starting with the effective date of the health insurance markets. These revision and carrying forward for the Notice final rule in the March 11, 2013 provisions of the PHSA have also been Federal Register (78 FR 15409). In the remaining duration of the PHE for augmented by later laws, including the COVID–19, the order of a physician or October 30, 2013 Federal Register (78 Patient Protection and Affordable Care FR 65046), we finalized the proposed other practitioner is not required for one 39 Act (PPACA). Subtitles A and C of modification to the HHS methodology otherwise covered diagnostic laboratory title I of the PPACA reorganized, test for COVID–19 and for one otherwise related to community rating states. We amended, and added to the provisions published a correcting amendment to covered diagnostic laboratory test each of part A of title XXVII of the PHSA for influenza virus or similar respiratory the 2014 Payment Notice final rule in relating to group health plans and the November 6, 2013 (78 FR 66653) to condition needed to obtain a final health insurance issuers in the group COVID–19 diagnosis, when performed address how an enrollee’s age for the and individual markets. risk score calculation would be in conjunction with a COVID–19 Section 1321(a) of the PPACA diagnostic laboratory test in order to determined under the HHS provides broad authority for the methodology. We have generally discount influenza virus or related Secretary to establish standards and diagnosis.38 This includes FDA- published the parameters and regulations to implement the statutory methodology for the applicable risk authorized COVID–19 serology tests, as requirements related to Exchanges,40 they are reasonable and necessary under adjustment benefit year in each section 1862(a)(1)(A) of the Act for 39 subsequent HHS annual notice of The Patient Protection and Affordable Care Act 41 beneficiaries with known current or (Pub. L. 111–148) was enacted on March 23, 2010. benefit and payment parameters. In known prior COVID–19 infection or The Health Care and Education Reconciliation Act suspected current or suspected prior of 2010 (Pub. L. 111–152), which amended and PPACA through which qualified individuals and revised several provisions of the Patient Protection qualified employers can purchase health insurance COVID–19 infection. We are also and Affordable Care Act, was enacted on March 30, coverage in qualified health plans (QHPs). 2010. In this IFC, we refer to the two statutes 41 See the 2015 Payment Notice final rule 38 The list of COVID–19, Influenza, and RSV collectively as the ‘‘Patient Protection and published in the March 11, 2014 Federal Register clinical diagnostic laboratory tests is available at Affordable Care Act’’ or ‘‘PPACA’’. (79 FR 13743); the 2016 Payment Notice final rule https://www.cms.gov/files/document/covid-ifc-2- 40 American Health Benefit Exchanges, or published in the February 27, 2015 Federal Register flu-rsv-codes.pdf. ‘‘Exchanges,’’ are entities established under the (80 FR 10749); the 2017 Payment Notice final rule
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the July 30, 2018 Federal Register (83 2020 benefit year in the 2020 Payment 156.80(d), 156.210(a), and 156.286(a)(2) FR 36456), we published a final rule Notice final rule in the April 25, 2019, through (4) to allow issuers in the that adopted the 2017 benefit year risk Federal Register (84 FR 17454). On May individual and small group markets the adjustment methodology as established 14, 2020, we adopted the risk flexibility, when consistent with state in the final rules published in the March adjustment methodology and law, to temporarily offer premium 23, 2012 (77 FR 17220 through 17252) parameters for the 2021 benefit year in credits for 2020 coverage.43 The memo and in the March 8, 2016 editions of the the 2021 Payment Notice final rule in also advised of our intention to pursue Federal Register (81 FR 12204 through the Federal Register (85 FR 29164). future rulemaking to address risk 12352). The final rule sets forth Section 2718 of the PHSA, as added adjustment data submissions and MLR additional explanation of the rationale by the PPACA, generally requires health reporting requirements for issuers that supporting the use of the statewide insurance issuers to submit an annual elect to provide these credits to ensure average premium in the HHS-operated report to the Secretary that details the that issuers accurately report premium risk adjustment state payment transfer percentage of premium revenue (after amounts actually billed for months in formula for the 2017 benefit year, certain adjustments) expended on 2020 for which issuers are providing including the reasons why the program reimbursement for clinical services these credits. is operated in a budget-neutral manner. provided to enrollees under health This IFC clarifies the data reporting The final rule permitted HHS to resume insurance coverage and on activities requirements for issuers of risk 2017 benefit year risk adjustment that improve healthcare quality. The adjustment covered plans 44 to specify payments and charges. HHS also ratio of premium revenue spent on that, for the purposes of 2020 benefit provided guidance as to the operation of clinical services and quality year risk adjustment data submissions, the HHS-operated risk adjustment improvement activities is called the issuers of risk adjustment-covered plans medical loss ratio (MLR). Section program for the 2017 benefit year in that provide temporary premium credits 42 2718(b) of the PHSA requires an issuer light of publication of this IFC. must report to their dedicated In the August 10, 2018 Federal to provide rebates to enrollees if its MLR distributed data environment (EDGE Register (83 FR 39644), we published a falls below specified MLR standards server) adjusted plan premiums that proposed rule seeking comment on (generally 80 percent for the individual reflect actual premiums billed to adopting the 2018 benefit year risk and small group markets, and 85 enrollees, taking the premium credits adjustment methodology in the final percent for the large group market). We into account as a reduction in rules published in the March 23, 2012 published an interim final rule in the premiums. In addition, this IFC (77 FR 17219) and in the December 22, December 1, 2010 Federal Register (75 clarifies, consistent with the reporting of 2016 editions of the Federal Register FR 74863). A final rule was published the actual premium amounts billed to (81 FR 94058). The proposed rule set in the December 7, 2011 Federal forth additional explanation of the Register (76 FR 76573). The MLR enrollees for 2020 benefit year risk rationale supporting use of statewide program requirements were amended in adjustment data submissions, HHS’s average premium in the HHS-operated final rules published in the December 7, calculation of risk adjustment payment risk adjustment state payment transfer 2011 Federal Register (76 FR 76595), and charges for the 2020 benefit year under the state payment transfer formula for the 2018 benefit year, the May 16, 2012 Federal Register (77 45 including the reasons why the program FR 28790), the March 11, 2014 Federal formula will be calculated using the is operated in a budget-neutral manner. Register (79 FR 13743), the May 27, statewide average premium that reflects In the December 10, 2018 Federal 2014 Federal Register (79 FR 30339), actual premiums billed, taking into Register (83 FR 63419), we issued a the February 27, 2015 Federal Register account any temporary premium credits final rule adopting the 2018 benefit year (80 FR 10749), the March 8, 2016 provided as a reduction in premium for HHS-operated risk adjustment Federal Register (81 FR 12203), the the applicable months of 2020 coverage. methodology as established in the final December 22, 2016 Federal Register (81 This IFC similarly clarifies the MLR rules published in the March 23, 2012 FR 94183), the April 17, 2018 Federal reporting and rebate requirements in 45 (77 FR 17219) and the December 22, Register (83 FR 16930), and the April CFR part 158 for issuers that elect to 2016 (81 FR 94058) editions of the 25, 2019 Federal Register (84 FR provide temporary premium credits Federal Register. That final rule sets 17454). such that these issuers must report as forth additional explanation of the Due to the urgent need to help earned premium the actual premium rationale supporting use of statewide facilitate the nation’s response to the paid, taking into account any temporary average premium in the HHS-operated COVID–19 pandemic, CMS announced premium credits as a reduction in risk adjustment state payment transfer the adoption of certain temporary premium for the applicable months of formula for the 2018 benefit year, policies of relaxed enforcement for all 2020 coverage. including the reasons why the program issuers offering health insurance These interim final provisions are is operated in a budget-neutral manner. coverage in the individual and small effective as of the date of finalization of We adopted the risk adjustment group markets to support continuity of this IFC and apply to temporary methodology and parameters for the coverage for individuals, families, and small employers who may struggle to 43 See https://www.cms.hhs.ov/CCIIO/Programs- published in the March 8, 2016 Federal Register (81 pay premiums because of illness or loss and-Initiative/Health-Insurance-Marketplaces/ FR 12203); the 2018 Payment Notice final rule of incomes or revenue resulting from the Downloads/Premium-Credit-Guidance.pdf. published in the December 22, 2016 Federal PHE for COVID–19. On August 4, 2020, 44 See 45 CFR 153.20 for a definition of ‘‘risk Register (81 FR 94058); the 2019 Payment Notice CMS issued a memo, ‘‘Temporary Policy adjustment covered plan’’. final rule published in the April 17, 2018 Federal 45 The state payment transfer formula refers to the Register (83 FR 16930); and the 2019 Payment on 2020 Premium Credits Associated part of the HHS risk adjustment methodology Notice final rule correction published in the May with the COVID–19 Public Health established consistent with 45 CFR 153.320 that 11, 2018 Federal Register (83 FR 21925). Emergency,’’ wherein CMS adopted calculates payments and charges at the state market 42 ‘‘Update on the HHS-operated Risk Adjustment certain temporary policies of relaxed risk pool level. See, for example, the 2020 Payment Program for the 2017 Benefit Year.’’ July 27, 2018. Notice final rule, 84 FR at 17485. The state payment Available at https://www.cms.gov/CCIIO/Resources/ enforcement for the premium rules set transfer calculations are performed prior to the Regulations-and-Guidance/Downloads/2017-RA- forth at 45 CFR 147.102, 155.200(f)(4), calculation of the high-cost risk pool payment and Final-Rule-Resumption-RAOps.pdf. 155.400(e) and (g), 155.706(b)(6)(1)(A), charge terms.
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premium credits provided for 2020 calculates the difference between the market, based on billable member coverage. revenues required by a plan, based on months. the health risk of the plan’s enrollees, This IFC sets forth how HHS will treat 2. Standards Related to Reinsurance, and the revenues that the plan can temporary premium credits provided for Risk Corridors, and Risk Adjustment (45 generate for those enrollees. These purposes of applying the state payment CFR Part 153) differences are then compared across transfer formula for the 2020 benefit This IFC addresses changes necessary plans in the state market risk pool 50 and year.54 For states where issuers of risk to align the 2020 benefit year data converted to a dollar amount based on adjustment covered plans have provided submission requirements and state the statewide average premium. The temporary premium credits, the plan payment transfer formula calculations difference between the two premium average premium and statewide average under the HHS-operated risk adjustment estimates determines whether a plan premium used in the state payment program with guidance published by pays a risk adjustment charge or transfer formula will be calculated using CMS allowing temporary premium receives a risk adjustment payment.51 issuers’ adjusted premium amounts— credits due to the PHE for COVID–19. that is, the actual premiums billed to HHS chose to use statewide average plan enrollees will be the amounts used a. Provisions and Parameters for the premium and normalize the risk in the calculations under the state Risk Adjustment Program adjustment state payment transfer payment transfer formula. We clarify formula to reflect state average factors so In subparts A, B, D, G, and H of part that HHS will use adjusted plan that each plan’s enrollment 153, we established standards for the premiums for all enrollees whom the administration of the PPACA risk characteristics are compared to the state issuer has actually provided premium adjustment program. The risk average and the calculated payment credits as a reduction to 2020 benefit adjustment program is a permanent amounts equal calculated charges in 52 year premiums, even if the credits were program created by section 1343 of the each state market risk pool. Thus, the not provided in a manner consistent PPACA that transfers funds from lower- state payment transfer formula provides with the August 4, 2020 memo, when than-average risk, risk adjustment a per member per month (PMPM) calculating transfers under the state covered plans to higher-than-average transfer amount for a plan within a payment transfer formula for the 2020 risk, risk adjustment covered plans in rating area. This resulting PMPM plan benefit year. As detailed further below, the individual and small group markets payment or charge is multiplied by the issuers providing these temporary (including merged markets), inside and number of billable member months to premium credits must report the lower, outside the Exchanges. HHS is determine the plan payment or charge actual premium amounts billed to plan responsible for operating risk based on plan liability risk scores for a enrollees to their respective EDGE adjustment in any state that does not plan’s geographic rating area for the servers. We believe that the applicable elect to do so.46 HHS did not receive applicable state market risk pool. The definitions of plan average premium any requests from states seeking to payment or charge under the state and state average premium retain the operate their own risk adjustment payment transfer formula is thus meaning previously finalized by program for the 2020 benefit year.47 calculated to balance the state market reflecting the actual monthly premium Therefore, HHS is responsible for risk pool in question. billed to enrollees. In addition, the operating the risk adjustment program In prior rulemaking,53 CMS finalized recognition of temporary premium established under section 1343 of the the calculation of plan average premium credits for 2020 coverage as a reduction PPACA in all 50 states and the District as equal to the actual premiums charged in premium for purposes of the risk of Columbia for the 2020 benefit year.48 to plan enrollees, weighted by the adjustment program is a necessary and i. Calculation of Plan Average Premium number of months enrolled, and appropriate step to align risk adjustment and State Average Premium Under the finalized the calculation of the state charges and payments under the state Federally-Certified Risk Adjustment average premium as equal to the average payment transfer formula with the Methodology (§ 153.320) of individual plan average premiums, flexibilities provided to issuers and weighted by each plan’s share of states elsewhere in this rulemaking to The HHS risk adjustment statewide enrollment in the risk pool respond to the PHE for COVID–19. This methodology applicable to the 2020 approach also provides necessary clarity benefit year includes the state payment 50 Risk adjustment transfer under the state to issuers as they evaluate whether and transfer formula and the high-cost risk payment transfer formula are calculated at the risk in what amount to offer premium relief pool parameters.49 The state payment pool level, and catastrophic plans are treated as a to enrollees to assist those adversely transfer formula includes a set of cost separate risk pool for purpose of these calculations. affected financially by the PHE for 51 adjustment terms that require transfers The value of the plan average risk score by COVID–19 to maintain continuous to be calculated at the geographic rating itself does not determine whether a plan would be assessed a charge or receive a payment—even if the health insurance coverage. This IFC area level for each plan (that is, we risk score is greater than 1.0, it is possible that the does not change any other aspect of the calculate separate transfer amounts for plan would be assessed a charge if the premium state payment transfer formula or the each rating area in which a risk compensation that the plan may receive through its method for calculating payments and adjustment covered plan operates). It rating (as measured through the allowable rating factor) exceeds the plan’s predicated liability charges under the HHS risk adjustment also includes a 14 percent associated with risk selection. methodology (inclusive of the state administrative cost reduction to the 52 See the 2020 Payment Notice final rule for payment transfer formula and high-cost statewide average premium. The state further details on other reasons why statewide risk pool parameters).55 payment transfer formula generally average premium is the cost-scaling factor in the In the 2019 Payment Notice, we state payment transfer formula. See 84 FR at 17480 through 17484. provided states the flexibility to request 46 See section 1321(c)(1) of the PPACA. Also see 53 See, for example, the 2014 Payment Notice 45 CFR 153.310(a). final rule, 78 FR 15409, available at https:// 54 CMS intends to consider adopting a similar 47 See the 2020 Payment Notice final rule, 84 FR www.govinfo.gov/content/pkg/FR-2013-03-11/pdf/ approach for the 2021 benefit year, as may be at 17463 (April 25, 2019). 2013-04902.pdf (March 11, 2013). Also see the 2020 appropriate (for example, if similar temporary 48 Ibid. Payment Notice final rule, 84 FR 17454, available premium credits are permitted for 2021 coverage). 49 See the 2020 Payment Notice final rule, 84 FR at https://www.govinfo.gov/content/pkg/FR-2019- 55 See the 2020 Payment Notice final rule, 84 FR at 17466 through 17468 and 17480 through 17486. 04-25/pdf/2019-08017.pdf. at 17466 through 17468 and 17480 through 17486.
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a reduction to the otherwise applicable premium revenue for the state payment coverage from the issuer, with certain risk adjustment transfers calculated transfer formula. We clarify in this IFC adjustments. under the HHS-operated risk adjustment that, for purposes of 2020 benefit year This IFC sets forth how CMS will treat methodology’s state payment transfer data submissions,59 the subscriber-level temporary premium credits for purposes formula, which is calibrated on a premium information that issuers of MLR reporting and rebate national dataset, for the state’s upload to their EDGE servers must requirements of these amounts for 2020 individual, small group, or merged reflect the adjusted (that is, lower) coverage.61 During 2020, a number of markets, by up to 50 percent to more monthly premium reflecting the issuers are expected to provide precisely account for differences in amounts actually billed to their premium relief to enrollees, which will actuarial risk in the applicable state’s enrollees, inclusive of any premium result in policyholders and subscribers market(s).56 For the 2020 benefit year, credits provided. We clarify in this IFC paying a reduced amount of premium HHS approved a request from Alabama that CMS will require issuers to submit for coverage in 2020 in the months for state insurance regulators to reduce risk adjusted plan premiums to their EDGE which the credits are provided. The adjustment transfers for the Alabama servers for all enrollees whom the issuer recognition of temporary premium small group market by 50 percent.57 has actually provided premium credits credits as a reduction in premium for Consistent with this IFC, the state as a reduction to 2020 benefit year purposes of the MLR program is a payment transfer formula will premiums, even if these premium necessary and appropriate step to align incorporate calculations using issuers’ credits were not provided in a manner MLR calculations with the flexibilities adjusted premium amounts—that is, the consistent with the August 4, 2020 provided to issuers and states elsewhere lower actual premiums billed to plan memo. Issuers should continue to in this rulemaking to respond to the enrollees will be the amounts used in submit the full, unadjusted premium PHE for COVID–19. This approach also the calculations under the state payment amounts for any coverage for which provides necessary clarity to issuers as transfer formula to reflect these they did not provide temporary they evaluate whether and in what temporary premium credits. As such, if premium credits. This IFC does not amount to offer temporary premium an issuer in the Alabama small group change any other aspect of the 2020 credits to assist enrollees in maintaining market chooses to provide temporary benefit year data submission continuous health insurance coverage premium credits, the state average requirements for the HHS-operated risk during the PHE for COVID–19. premium will decrease, and HHS will adjustment program. As such, any To ensure that an issuer’s MLR apply the 50 percent transfer reduction temporary premium credits that are accurately reflects the amounts actually to the lower PMPM payment or charge reported as a reduction in premium for paid by their enrollees as the issuer’s transfer amount calculated under the risk adjustment purposes are subject to premium revenue, we clarify that for state payment transfer formula for the the applicable regulations at part 153, purposes of § 158.130, issuers must Alabama small group market. the EDGE server business rules, and account for temporary premium credits applicable CMS guidance. as reductions in earned premium in the ii. Data Requirements for Risk individual and small group (or merged) Adjustment Covered Issuers (§ 153.610 3. Issuer Use of Premium Revenue: markets,62 consistent with any technical and § 153.710) Reporting Requirements (45 CFR Part guidance set forth in the applicable Section 153.610 requires an issuer of 158) MLR Annual Reporting Form 63 a risk adjustment covered plan to In this IFC, we also address changes Instructions. Specifically, we clarify submit or make accessible risk necessary to align the reporting and data that the amount of temporary premium adjustment data for all risk adjustment 64 submission requirements under the credits constitutes neither collected covered plans in accordance with the PPACA MLR program with the premium nor due and unpaid premium risk adjustment data collection temporary premium credits that issuers described in the MLR Annual Reporting approach established by a state, or HHS may provide to enrollees in 2020.60 Form Instructions for purposes of on behalf of a state. The HHS-operated reporting written premium (which is a risk adjustment program uses a a. Premium Revenue (§ 158.130) component of earned premium). As a distributed data collection approach, Section 2718(a) of the PHSA requires result of this flexibility, issuers who and issuers of risk adjustment covered health insurance issuers to report to the offer temporary premium credits should plans must provide HHS with access to Secretary the percentage of premium plan enrollment data, enrollee claims 61 revenue (after certain adjustments) CMS intends to consider adopting a similar data, and enrollee encounter data approach if temporary premium credits are expended on reimbursement for clinical through their respective EDGE server, permitted for 2021 coverage, if appropriate. services provided to enrollees under 62 pursuant to the requirements of While this IFC and the August 4, 2020 memo health insurance coverage and on focus on the individual and small group markets, § 153.710 and applicable technical activities that improve healthcare to remove the barriers in support of issuers offering guidance.58 Issuers are required to quality. Section 158.130 specifies the these premium credits to enrollees impacted by report to their EDGE server subscriber- PHE for COVID–19, we note that issuers in the large reporting requirements with regard to level premium information that is used group market may also, when consistent with state earned premium, which must include law, offer premium credits and should similarly by HHS to calculate each plan’s total all monies paid by a policyholder or report the lower, adjusted amount that accounts for subscriber as a condition of receiving the premium credits for MLR purposes. 56 See the 2019 Payment Notice final rule, 83 FR 63 Available from https://www.cms.gov/cciio/ at 6955 to 16960. Also see 45 CFR 153.320(d). Resources/Forms-Reports-and-Other-Resources/ 57 See the 2020 Payment Notice final rule, 84 FR 59 As noted above, CMS intends to consider index#Medical_Loss_Ratio. at 17484 through 17485. HHS approved a similar adopting a similar approach for the 2021 benefit 64 MLR rebates provided in the form of premium request to reduce 2021 benefit year Alabama small year, as may be appropriate. credits are different than the temporary premium group market transfers by 50 percent. See the 2021 60 The MLR reporting year means a calendar year credits such as those outlined in the August 4, 2020 Payment Notice final rule, 85 FR at 29193 through during which group or individual health insurance guidance issued by CMS. When MLR rebates are 29194. coverage is provided by an issuer. See 45 CFR provided in the form of premium credits, issuers 58 See EDGE Server Business Rules (ESBR) v16.0 158.103. The 2020 MLR reporting year refers to the must continue to report the full amount of earned Section 5.8 Premium Amounts, at https:// MLR reports that issuers must submit for the 2020 premium and may not reduce it by the amount of www.regtap.info/uploads/library/DDC_ESBR_ benefit year by July 31, 2021. See 45 CFR MLR rebates provided in form of premium credits, V16.0_052920_5CR_052920.pdf. 158.110(b). as required by § 158.130(b)(3).
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report as earned premium for MLR and measures of plan sponsor performance manage their performance based on rebate calculation purposes the actual, each year, as provided in §§ 422.162 and these changes. reduced premium paid. We clarify that 423.182. The Star Ratings are central in In the March 31st COVID–19 IFC, we issuers must report the actual, reduced providing comparative information to adopted a series of changes to the 2021 premium amount for all enrollees whom enrollees and are also used to determine and 2022 Star Ratings to accommodate the issuer has actually provided whether an MA plan is eligible for a the disruption to data collection and premium credits for 2020 coverage, even QBP and the amount of beneficiary impact on performance posed by the if these premium credits were not rebates. PHE for COVID–19. The Star Ratings provided in a manner consistent with Sections 1853(o) and 1854(b)(1)(c) of changes adopted in that rule addressed the August 4, 2020 memo. This IFC does the Act provide for quality ratings, the need of health and drug plans and not change any other aspect of the MLR based on a 5-star rating system and the their providers to curtail certain data reporting or rebate calculation information collected under section collections and to adapt their current requirements. 1852(e) of the Act, to be used in practices in light of the PHE for COVID– calculating payment to MA 19 and the need to care for the most H. Addressing the Impact of COVID–19 organizations beginning in 2012. vulnerable patients, such as the elderly on Part C and Part D Quality Rating Specifically, these provisions provide, and those with chronic health Systems respectively, for an increase in the conditions. As explained in the March 1. Background benchmark against which MA 31st COVID–19 IFC, we believe that organizations bid and in the portion of there will be changes in measure-level CMS develops and publicly posts a 5- the savings between the bid and the scores because of increased healthcare star rating system for Medicare benchmark available to the MA utilization due to COVID–19, reduced or Advantage (MA) and Part D plans based organization to use as a rebate. In delayed non-COVID–19 care due to on its authority to disseminate addition, CMS assigns both low and advice to patients to delay routine and/ comparative information, including high performing icons, which are or elective care, and changes in non- about quality, to beneficiaries under displayed on https://www.medicare.gov/ COVID–19 inpatient utilization. We sections 1851(d) and 1860D–1(c) of the plan-compare/, to help Medicare realize that this will impact the data Act and authority to collect various beneficiaries make plan decisions, based collected during the 2020 measurement types of quality data under section on either consistently low performance year which will impact the 2022 Part C 1852(e) of the Act. The Star Rating (2.5 or fewer stars at the summary rating and D Star Ratings. Thus, as part of the system for MA and Part D plans is also level) for 3 or more years or receipt of March 31st COVID–19 IFC, we made the basis for determining quality bonus 5 stars for the highest rating in any some adjustments to account for the payment (QBP) status for MA plans given year. potential decreases in measure-level under section 1853(o) of the Act and the There are other regulations, regarding scores so health and drug plans can amount of beneficiary rebates under marketing authority, special enrollment have some degree of certainty knowing section 1854(b) of the Act. As periods, and contract terminations, that that the Star Ratings will be adjusted background, approximately $12 billion are tied to the Star Ratings, and can continue their focus on patients for 2020 will be paid as part of QBPs in demonstrating how the Star Ratings are who are most in need right now. the form of higher benchmarks for both important to the MA and Part D Specifically, the March 31st COVID– Individual and Employer Group Waiver programs as a whole. Because the Star 19 IFC: Plans, which represent about 4.35 Ratings serve a variety of purposes for • Eliminates the requirement to percent of the total MA benchmarks. CMS, cost plans, and MA and Part D collect and submit Healthcare Cost plans under section 1876 of the Act plans, we assume plans engage in Effectiveness Data and Information Set are also included in the MA and Part D multiple activities during the (HEDIS) and Medicare CAHPS data Star Rating system, as codified at 42 measurement period to improve their otherwise collected in 2020, and CFR 417.472(k). Star Ratings. Therefore, it is necessary to replaces the 2021 Star Ratings measures The Star Ratings are generally based adopt rules for, and provide information calculated based on those HEDIS and on measures of performance during a about how performance in 2020—during CAHPS data collections with earlier period that is 2 calendar years before the the PHE for COVID–19—will be used in values from the 2020 Star Ratings year for which the Star Ratings are the Star Ratings program as quickly as (which are not affected by the public issued; for example, 2022 Star Ratings possible. Without adopting these rules health threats posed by COVID–19); will generally be based on performance immediately, plans will believe that, • Establishes how we will calculate during 2020. We use a variety of data based on current rules, CMS will be or assign the 2021 Star Ratings in the sources to measure quality and unable to assign Star Ratings for event that CMS’ functions become performance of contracts, such as CMS Contract Year 2022 and be unable to pay focused on only continued performance administrative data, surveys of QBPs for Contract Year 2023. Given the of essential agency operations and the enrollees, information from health and significant impact of QBPs on overall agency and/or its contractors do not drug plans, and data collected by CMS plan payments, described above, have the ability to calculate the 2021 contractors. Various regulations require without immediate action, plans would Star Ratings; plans to report on quality improvement not have a clear incentive to focus on • Modifies the current rules for the and quality assurance and to provide providing high quality care for enrollees 2021 Star Ratings to replace any data which we can use to help impacted by COVID–19, and instead measure that has a systemic data quality beneficiaries compare plans (for either spend time and effort trying to issue for all plans due to the COVID–19 example, §§ 417.472(j) and (k), ensure that future Star Ratings and QBP outbreak with the measure-level Star 422.152(b), 423.153(c), and 423.156). In ratings are not impacted by the PHE for Ratings and scores from the 2020 Star addition, we can require plans to report COVID–19, or shift focus from providing Ratings; statistics and other information in quality care to cost containment. • Replaces the measures calculated specific categories (§§ 422.516 and Delaying these changes would limit (or based on Health Outcomes Survey 423.514). Data from these sources and eliminate) the time left in the 2020 (HOS) data collections with earlier other sources are used to calculate measurement period for plans to values that are not affected by the public
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health threats posed by COVID–19 for minimum percentage of enrollees small fraction of contracts (that is, less the 2022 Star Ratings in the event that residing in an area declared as an than 5 percent of contracts on average). we are unable to complete HOS data Individual Assistance area are eligible The unprecedented impact of COVID– collection in 2020 (for the 2022 Star for Star Ratings adjustments for extreme 19 creates a new methodological issue Ratings) due to the PHE for COVID–19; and uncontrollable circumstances. The where, without a revision to our current • Removes guardrails for the 2022 disaster policy was not designed to disaster policy rules for calculating the Star Ratings by delaying their address global pandemics. In the past measure-level cut points for the 2022 application to the 2023 Star Ratings; several years that we have used the Star Ratings, we will not have enough • Expands the existing hold harmless extreme and uncontrollable contracts to reliably calculate the non- provision for the Part C and D circumstance adjustment for the Part C CAHPS measure-level cut points. Improvement measures to include all and D Star Ratings, the FEMA Consequently, CMS will not be able to contracts for the 2022 Star Ratings; and declarations have only been to county/ assign Star Ratings for all non-CAHPS • Revises the definition of ‘‘new MA county-equivalents and the declarations measures. Similarly, we will not have plan’’ so that, for purposes of 2022 QBPs have only resulted in adjustments for a enough contracts to reliably calculate based on 2021 Star Ratings only, new limited number of contracts. the performance summary and variance MA plan means an MA contract offered At the time of writing the March 31st thresholds for the Reward Factor. by a parent organization that has not COVID–19 IFC to adopt a series of Applying the 60 percent rule for had another MA contract in the changes for the 2021 and 2022 Star extreme and uncontrollable previous 4 years, in order to address Ratings as a result of the PHE for circumstances to the 2022 Star Ratings how the 2021 Star Ratings will be based COVID–19, no counties or county- would result in removal of a large in part on data for the 2018 performance equivalents had been declared proportion of contracts (close to 98 period. Individual Assistance areas as a result of percent) from threshold calculations, Please see the March 31st COVID–19 COVID–19. As of July 28, 2020, 51 out resulting in too few contracts to reliably IFC for further information on these of 55 states/territories 65 covering all calculate cut points using the clustering changes for the 2021 and 2022 Star counties or county-equivalents within methodology for the non-CAHPS Ratings. these states and territories have been measures and too few contracts to 2. Impact of COVID–19 on the Extreme designated as Individual Assistance reliably calculate the weighted means and Uncontrollable Circumstance Policy areas due to COVID–19 with an incident and variance used to calculate the for the 2022 Star Ratings period starting in 2020 (thus affecting Reward Factor. Due to the the 2020 measurement year), and this unprecedented way the PHE for COVID– The March 31st COVID–19 IFC number could continue to grow 19 has affected all contracts in 2020, amended, as necessary, certain throughout 2020 as the PHE for COVID– and the fact that a majority of the calculations for the 2021 and 2022 Part 19 evolves. This means that the PHE for country has been designated as C and D Star Ratings to incorporate COVID–19 now meets the Star Ratings Individual Assistance areas, we are changes to address the expected impact criteria for an extreme and creating special rules for the 2022 Star of the PHE for COVID–19 on data uncontrollable circumstance in nearly Ratings to remove the 60 percent rule to collection and performance in 2020 that all states/territories (and service areas), avoid having to exclude the vast were immediately apparent. As the PHE and most contracts would be eligible for majority of contracts from the for COVID–19 has progressed and the extreme and uncontrollable methodology used to assign Star Ratings various federal and state agencies have circumstance adjustments to their 2022 which would result in unreliable ratings taken steps to address the PHE, we have Star Ratings as a result of the PHE for or missing data for all contracts in the become aware that application of the COVID–19. 2022 Star Ratings. current Star Ratings disaster policy for Under the current disaster policy, for Under our current regulation, the 60 extreme and uncontrollable all non-CAHPS measures, the numeric percent rule would remove nearly all circumstances (§§ 422.166(i) and scores for contracts with 60 percent or values from the calculation of cut points 423.186(i)) will cause unintended and more of their enrollees living in a and the Reward Factor for the 2022 Star unworkable consequences for the 2022 FEMA-designated Individual Assistance Ratings and, if we are unable to Star Ratings, which will be based on the area at the time of the extreme and calculate non-CAHPS measure-level cut 2020 measurement period for cost, MA, uncontrollable circumstance are points for the 2022 Star Ratings (such as and Part D plans. The Star Ratings excluded from: (1) The measure-level because of the application of the 60 disaster policy for extreme and cut point calculations for non-CAHPS percent rule), all contracts will have uncontrollable circumstances was measures; and (2) the performance missing measure-level Star Ratings for developed with natural disasters such as summary and variance thresholds for all non-CAHPS measures. In that hurricanes and wildfires in mind. Those the Reward Factor as described at circumstance, we will not have enough types of emergencies typically impact §§ 422.166(i)(9)(i) and (i)(10)(i), and measures with Star Ratings to calculate well-defined geographic areas. The 423.186(i)(7)(i) and (i)(8)(i). When only either the 2022 overall or summary Star policy uses declarations by the Federal a small number of counties are Ratings or 2023 QBPs. In addition to the Emergency Management Agency designated as Individual Assistance 60 percent rule, for contracts that have (FEMA) of counties or county- areas, application of these exclusions 25 percent or more of their enrollees equivalents as Individual Assistance means that the performance from other living in FEMA-designated Individual areas that make up all or part of a contracts serving larger or other service Assistance areas, our current regulations contract’s service area, as well as areas are used to establish the necessary at §§ 422.166(i) and 423.186(i) apply whether the contract’s service area is thresholds for Star Ratings. Up until various rules including permitting use within an ‘‘emergency area’’ during an now, disasters have been localized, and of the previous year’s measure-level ‘‘emergency period’’ as defined in the 60 percent rule has removed only a rating and corresponding measure score section 1135(g) of the Act, as a if it is higher on most Star Rating condition for applying an adjustment to 65 This includes the 50 states, Washington, DC, measures. However, §§ 422.166(i)(8) and how the Star Ratings are calculated for Guam, Northern Mariana Islands, Puerto Rico and 423.186(i)(6) state that if the measure- the contract. Contracts with a certain Virgin Islands. level rating is missing for most measures
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in the current or prior year and a the change adopted in this IFC will Under the 25 percent rules at comparison cannot be done, the contract avoid that outcome and preserve the §§ 422.166(i)(2) through (6) and gets the current year’s measure-level ability to calculate and issue 2022 Star 423.186(i)(2) through (5), contracts with rating. Therefore, under our current Ratings. at least 25 percent of their service area regulations, without a change to the 60 Furthermore, plans need to know this in a FEMA-designated Individual percent rule to ensure that contracts change so they have certainty about how Assistance area in 2020 will receive the receive measure-level ratings for the their ratings will be calculated which higher of their measure-level rating from 2022 Star Ratings, we would not be able will allow them to focus on providing the current and prior Star Ratings years to apply the 25 percent rule to compare the best care possible to beneficiaries for purposes of calculating the 2022 Star the 2022 measure-level Star Ratings to during the remainder of the 2020 Ratings (thus, for 2022 Star Ratings, the 2021 measure-level Star Ratings, and measurement period. Without knowing contracts will receive the higher of their nearly all contracts would have missing the changes made by this IFC to the measure-level rating from 2021 or 2022). 2022 overall and summary Star Ratings methodology for calculating the 2022 For the 2022 Star Ratings, we expect and 2023 QBPs. Star Ratings, plans could have data collection and submission of The change adopted by this IFC will conflicting priorities between continued HEDIS and CAHPS data to continue as remove application of the 60 percent focus on caring for enrollees impacted usual; those data will be collected rule and avoid the exclusion of by COVID–19 and keeping Medicare during spring and summer 2021. The contracts with 60 percent or more of beneficiaries safe, while at the same majority of measures for the 2022 Star their enrollees living in FEMA- time wanting to ensure that future Star Ratings are based on the 2020 designated Individual Assistance areas Ratings and QBP ratings are not measurement year, during which the from calculation of the non-CAHPS impacted by the PHE for COVID–19 PHE for COVID–19 continues. The measure-level cut points and calculation which could negatively impact future March 31st COVID–19 IFC made some of the Reward Factor for the 2022 Star benefits offered by MA organizations. changes to the methodology for the 2022 Ratings. By removing application of this The changes to the calculations for 2022 Star Ratings so as not to inappropriately particular exclusion, the performance of Star Ratings are designed to avoid incentivize actions by plans and contracts in 2020 in these service areas inadvertently creating incentives for healthcare providers that are not will be used to calculate the cut points plans to place cost considerations above directly related to the PHE for COVID– for all non-CAHPS measures and to efforts to address the care of patients 19 and to provide assurances to calculate the Reward Factor; subject to during the PHE for COVID–19, which these changes, all other Star Ratings they may do if they believe that quality Medicare health and drug plans about rules (as revised in the March 31st performance in 2020 would not factor how performance changes driven or COVID–19 IFC) will apply. This change into their 2022 Star Rating or potential caused by the PHE for COVID–19 will will ensure that CMS can: calculate 2023 QBP. be addressed in the 2022 Star Ratings. measure-level cut points for the 2022 This IFC modifies the calculation of The significant number of declarations Star Ratings; calculate measure-level the 2022 Part C and D Star Ratings to of Individual Assistance areas makes it ratings for the 2022 Star Ratings; apply address the application of the extreme impossible to calculate the cut points of the ‘‘higher of’’ policy for non-CAHPS and uncontrollable circumstances non-CAHPS measures for the 2022 Star measures, as described at policy for the PHE for COVID–19. Ratings since almost all contracts will §§ 422.166(i)(3)(iv), 422.166(i)(4)(v) and Specifically, for the 2022 Star Ratings, be excluded from the calculations as a 423.186(i)(4)(i); calculate the Reward CMS will not exclude the numeric result of the 60 percent exclusion rule. Factor; and ultimately calculate overall values (that is, the performance data) for In this IFC, at §§ 422.166(i)(11) and and summary ratings for 2022 Star affected contracts with 60 percent or 423.186(i)(9), we are revising, for 2022 Ratings and 2023 QBPs. It is critical to more of their enrollees in FEMA- Star Ratings only, the current disaster adopt the change in this IFC to avoid an designated Individual Assistance areas policy codified at §§ 422.166(i) and unworkable result from the current during the 2020 performance and 423.186(i) to: (1) Remove the 60 percent policy in these extraordinary measurement period: (1) From the exclusion rule for cut point calculations circumstances and so that CMS can clustering algorithms; or (2) from the for non-CAHPS measures; and (2) measure actual performance for the determination of the performance remove the 60 percent exclusion rule for 2020 measurement period so plans have summary and variance thresholds for the determination of the performance an opportunity to demonstrate how they the Reward Factor. This means that summary and variance thresholds for are tailoring care in innovative ways to CMS will use the performance scores for the Reward Factor. The new regulation meet the needs of their enrollees during contracts for the 2020 performance and for MA Star Ratings specifically the PHE for COVID–19. Given the measurement period to establish cut provides that CMS will not apply the unprecedented impacts of the PHE for points for non-CAHPS measures and the provisions §§ 422.166(i)(9) or (i)(10) in COVID–19, it is important to be able to Reward Factor for the 2022 Star Ratings, calculating the 2022 Star Ratings, and calculate the 2022 Star Ratings to help subject to the other rules in the Star the new regulation for the Part D Star to continue to drive quality Ratings methodology, including the Ratings provides that CMS will not improvement for plans and providers. specific rules adopted in the March 31st apply the provisions of §§ 423.186(i)(7) COVID–19 IFC. We are not modifying or (i)(8) in calculating the 2022 Star 3. Provisions of IFC the 25 percent rules, even though it is Ratings. This change will ensure that In this IFC, we are adopting a change clear that the 25 percent rules will result CMS can: (1) Calculate measure-level to tailor the existing disaster policy in nearly all contracts being ‘‘affected cut points for the 2022 Star Ratings; (2) described at §§ 422.166(i) and 423.186(i) contracts’’ and eligible for adjustment to calculate measure-level Star Ratings for to address the impact of the PHE for their measure-level ratings for the 2022 the 2022 Star Ratings; (3) apply the COVID–19 and in calculating the 2022 Star Ratings because the PHE for ‘‘higher of’’ policy for non-CAHPS Part C and D Star Ratings. As the current COVID–19 was an extreme and measures, as described at rules are written, we will not be able to uncontrollable circumstance that may §§ 422.166(i)(3)(iv), 422.166(i)(4)(v), and calculate the 2022 overall or summary have negatively impacted contracts’ 423.186(i)(4)(i) for all contracts with 25 Star Ratings or 2023 QBP ratings, and performance on Star Ratings measures. percent or more of their enrollees living
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in FEMA-designated Individual furnished in-person, when they are b. Use of Codes for Virtual Check-ins, Assistance areas which will include instead furnished using interactive, real- Remote Evaluations, E-Visits, and almost all Part C and D contracts for the time telecommunication technology. Telephone E/M Services in MIPS 2020 measurement period; and (4) When furnished under the telehealth Beneficiary Assignment for the CMS ultimately calculate overall and rules, these specified Medicare Web Interface and CAHPS for MIPS summary ratings for 2022 Star Ratings telehealth services are reported using Survey and 2023 QBPs. the same codes used for the ‘‘face-to- We have added new services to the face’’ services, but are furnished using I. Merit-Based Incentive Payment separately billable CTBS under the PFS audio/video, real-time, interactive System (MIPS) Updates over the past several years and as a communications technology instead of result of the PHE for COVID–19, we 1. Quality Performance Category: in person. As such, the majority of the expect that the utilization of CTBS will Expansion of Telehealth Codes Used in codes for primary care services included substantially increase during the PHE Beneficiary Assignment for the CMS in the additional telehealth services for COVID–19 and thereafter. We Web Interface and CAHPS for MIPS added in the March 31st COVID–19 IFC believe that clinicians are increasingly Survey for purposes of the PHE for COVID–19 using such services as a key component are already included in the definition of a. Background of their ongoing primary care. At primary care services for purposes of the § 414.1305, we are codifying the On March 17, 2020, we announced MIPS beneficiary assignment definition of primary care services for (https://www.cms.gov/newsroom/fact- methodology for the CMS Web Interface purposes of MIPS beneficiary sheets/medicare-telemedicine-health- and CAHPS for MIPS survey (81 FR care-provider-fact-sheet) the expansion 77168 through 77169; and 82 FR 53646 assignment methodology for the CMS of payment for telehealth services on a through 53647). Web Interface and CAHPS for MIPS temporary and emergency basis In the March 31st COVID–19 IFC, we survey. The included codes consist of pursuant to waiver authority added also established flexibilities and previously finalized codes that are under section 1135(b)(8) of the Act by separate payment for certain services already considered primary care the Coronavirus Preparedness and that are furnished virtually using services and additional codes that CMS Response Supplemental Appropriations communication technologies, but that will be treating as primary care services Act, 2020 (Pub. L. 116–123, enacted are not considered Medicare telehealth for the duration of the PHE for COVID– March 6, 2020) such that Medicare can services such as virtual check-ins and e- 19. The previously finalized codes are pay for telehealth services, including as follows: visits. Additionally, we established • office, hospital, and other visits separate payment for telephone E/M and CPT codes: 99201 through 99215 furnished by physicians and other other services codes during the PHE for (codes for office or other outpatient visit practitioners to patients located COVID–19. The communications for the E/M of a patient); 99304 through anywhere in the country, including in a technology-based services (CTBS) and 99318 (codes for professional services patient’s place of residence, starting the telephone E/M services are not furnished in a nursing facility, March 6, 2020. In the context of the PHE currently included in the definition of excluding professional services for COVID–19, we recognize that primary care services that is used for furnished in a SNF for claims identified physicians and other healthcare purposes of the MIPS beneficiary by place of service (POS) modifier 31) professionals are faced with new assignment methodology for the CMS (81 FR 77168); 99319 through 99340 challenges regarding potential exposure Web Interface and CAHPS for MIPS (codes for patient domiciliary, rest risks, including for Medicare survey. home, or custodial care visit); 99341 beneficiaries, for healthcare providers, We believe it is critical to include the through 99350 (codes for E/M services and for members of the community at codes for CTBS and telephone E/M furnished in a patients’ home for claims large. For example, the CDC has urged services, as identified and discussed identified by POS modifier 12); 99487, healthcare professionals to make every later in this section, in the definition of 99489, and 99490 (codes for chronic effort to interview persons under primary care services to ensure these care management); and 99495 and investigation for infection by telephone, services are included in our 99496 (codes for transitional care text messaging system, or video determination of where beneficiaries management services); and conference instead of in-person (85 FR receive the plurality of their primary • HCPCS codes: G0402 (code for the 27582). In the March 31st COVID–19 care for purposes of beneficiary Welcome to Medicare visit); and G0438 IFC, to facilitate the use of assignment. Including these codes will and G0439 (codes for the annual telecommunications technology as a ensure that the assignment methodology wellness visits). safe substitute for in-person services, appropriately reflects the expanded use The additional codes we are adding CMS added on an interim basis many of technology that is helping people through this IFC are as follows: (1) CPT services to the list of eligible Medicare who need routine care during the PHE codes: 99421, 99422, and 99423 (codes telehealth services, eliminating for COVID–19 and allowing vulnerable for online digital E/M service (e-visit)), frequency limitations and other beneficiaries and beneficiaries with and 99441, 99442, and 99443 (codes for requirements associated with particular mild symptoms to remain in their telephone E/M services); and (2) HCPCS services furnished via telehealth, and homes, while maintaining access to the codes: G2010 (code for remote clarifying several payment rules that care they need. By including services evaluation of patient video/images) and apply to other services that are provided virtually, either through G2012 (code for virtual check-in). furnished using telecommunications telehealth or other uses of We note that including these codes in technologies that can reduce exposure communications technology, we ensure the MIPS beneficiary assignment risks (85 FR 19232). that this care is appropriately reflected methodology for the CMS Web Interface Section 1834(m) of the Act specifies in our consideration of where and CAHPS for MIPS survey aligns with the payment amounts and beneficiaries receive the plurality of the revision that was made in the May circumstances under which Medicare their primary care, for purposes of 8th COVID–19 IFC (85 FR 27583) to the makes payment for a discrete set of assigning beneficiaries to groups and definition of primary care services used services, all of which must ordinarily be virtual groups. for purposes of beneficiary assignment
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under the Medicare Shared Savings alternate collection type and prepare The COVID–19 pandemic has been Program to include the same codes in their systems to report on measures deemed a PHE 66 by the Secretary of the determining beneficiary assignment for from a different collection type before Department of HHS. In response, in the performance year 2020 and any the submission period begins for the March 31st IFC for COVID–19 (85 FR subsequent performance year that starts 2020 MIPS performance period and as a 19276 through 19277), we added one during the PHE for COVID–19. result, they would not be able to meet new improvement activity to the The services listed above are an the quality performance category Improvement Activities Inventory for important component of primary care reporting requirements, which could the CY 2020 performance period in and as a result, we believe it is negatively impact their MIPS final score response to the PHE titled ‘‘COVID–19 appropriate to include these codes in and MIPS payment adjustment. We Clinical Trials.’’ As described in the the definition of primary care services believe it is important to include these March 31st IFC for COVID–19, this used for assignment for the CMS Web codes in our assignment methodology improvement activity promotes Interface and CAHPS for MIPS survey because we determine assignment based clinician participation in a COVID–19 because the services represented by upon where beneficiaries receive the clinical trial utilizing a drug or these codes are being used during the plurality of their primary care services biological product to treat a patient with PHE for COVID–19 in place of similar E/ 67 and whether beneficiaries have a COVID–19 infection. We stated that M services, the codes for which are to receive credit for this improvement designated a MIPS eligible clinician as already included in the list of codes activity, a clinician must attest to their primary clinician, responsible for used for assignment. It should be noted participation in a COVID–19 clinical their overall care, and hold groups and that the remote evaluation of patient trial utilizing a drug or biological video/images and virtual check-in virtual groups accountable for the product to treat a patient with a COVID– codes, and the online digital E/M resulting assigned beneficiary 19 infection and report their findings service (e-visit) codes are not separately population. Including these codes in the through a clinical data repository or billable by a clinician if they are related definition of primary care services used clinical data registry (85 FR 19276). In to a visit within the past 7 days or lead in MIPS beneficiary assignment during that IFC, we also stated that we believe to a visit within the following 24 hours the PHE for COVID–19 will result in a that participation in this activity would or next available appointment. The only more accurate identification of where likely result in improved outcomes by codes that are newly billable during the beneficiaries have received the plurality improving the collection of data PHE for COVID–19 pertain to the of their primary care services. clinicians use for the care of their telephone E/M services. patients as they monitor and manage We are including these codes in the 2. Improvement Activities Performance Category: Improvement Activities COVID–19 and drive care improvements definition of primary care services for (85 FR 19277). We stated that we believe Inventory Update the 2020 MIPS performance year and that encouraging clinicians to utilize an any subsequent performance year that a. Background open source clinical data repository or starts during the PHE for COVID–19. We clinical data registry for data reporting recognize that the application of this The CY 2018 Quality Payment will bring the results of their research to policy for the 2020 MIPS performance Program final rule (82 FR 53660) the forefront of healthcare far quicker period is retroactive. Section finalized that we would add new than if it goes through the cycle of peer 1871(e)(1)(A)(ii) of the Act provides for improvement activities or make review and publishing (85 FR 19277). In retroactive application of a substantive modifications to existing improvement addition, we stated that we believe that change to an existing policy when the activities in the Improvement Activities centralized data could improve clinical Secretary determines that failure to Inventory through notice-and-comment practice and care delivery (85 FR apply the policy change retroactively rulemaking. An improvement activity 19277). would be contrary to the public interest. means an activity that relevant MIPS b. Modification Without the inclusion of these codes in eligible clinician, organizations and the MIPS beneficiary assignment other relevant stakeholders identify as Following the publication of the methodology for the CMS Web Interface improving clinical practice or care March 31st IFC for COVID–19, we and CAHPS for MIPS survey for the delivery and that the Secretary received several inquiries through 2020 MIPS performance year during the determines, when effectively executed, meetings, email correspondence, and PHE for COVID–19, we would not be is likely to result in improved outcomes. Quality Payment Program help desk able to adequately account for the ways We refer readers to Table H in the requesting further information on in which beneficiaries are receiving Appendix of the CY 2017 Quality whether a clinician working with primary care services during the PHE for Payment Program final rule (81 FR COVID–19 patients who provides their COVID–19 and as a result, the process 77177 through 77199), Tables F and G data to a clinical data registry, without to derive assignment and sampling of in the Appendix of the CY 2018 Quality participating in a clinical trial, may get beneficiaries for the CMS Web Interface Payment Program final rule (82 FR credit for this activity. The Quality and CAHPS for MIPS survey would not 54175 through 54229), Tables A and B Payment Program help desk tracks, be able to comprehensively capture how in the Appendix 2 of the CY 2019 PFS documents, and resolves inquiries primary care services are being submitted by MIPS eligible clinicians final rule (83 FR 60286 through 60303), furnished to beneficiaries, which may and groups. Stakeholders may submit and Tables A, B, and C in the Appendix cause many groups and virtual groups to inquiries to the help desk via 1–866– 2 of the CY 2020 PFS final rule (84 FR have insufficient sample sizes to be able 288–8292 (Monday–Friday 8 a.m.–8 to administer the 2020 CAHPS for MIPS 63514 through 63538) for our previously finalized Improvement Activities survey or report data for the quality 66 Information regarding the PHE for COVID–19 is performance category using the CMS Inventory. We also refer readers to the available at https://www.phe.gov/emergency/news/ Quality Payment Program website at healthactions/phe/Pages/default.aspx. Web Interface measures. 67 In regard to the CMS Web Interface, https://qpp.cms.gov/ for a complete list For more information on the COVID–19 clinical of the most current list of improvement trials, we refer readers to the U.S. National Library such groups and virtual groups may not of Medicine website at https://clinicaltrials.gov/ct2/ have sufficient time to select an activities. results?cond=COVID-19.
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p.m. ET) or email QPP@ data to improve population health and scientific data sources, which cms.hhs.govmailto: [email protected]. outcomes. Most public health agencies enables reuse, increases transparency, Some stakeholders believed that and clinical data registries declare and facilitates reproducibility of clinicians providing care to patients readiness to accept data from clinicians research results. Furthermore, a clinical with COVID–19 outside of a clinical via a public online posting. Clinical data data registry may allow such data to be trial that report that data through a registries should make publicly publicly available which may be used clinical data registry should receive available specific information on what for research. credit for this activity. It has come to data the registry gathers, technical We believe that this improvement our attention that clinical data registries requirements or specifications for how activity would incentivize clinicians to not only collect data as part of clinical the registry can receive the data, and submit COVID–19 data to clinical data trials, but also collect data from how the registry may use, re-use, or registries, which is imperative to help clinicians not participating in clinical disclose individually identifiable data it combat the PHE for COVID–19 because trials. The improvement activity as receives. For purposes of credit toward the data could be used to inform written was causing confusion for this improvement activity, any data research and treatment options and clinicians and groups attempting to should be sent to the clinical data potentially save lives. We recognize that meet the needs of patients and address registry in a structured format, which under the Promoting Interoperability gaps in research. Since IA_ERP_3 titled the registry is capable of receiving. A performance category there is the ‘‘COVID–19 Clinical Trials’’ was MIPS-eligible clinician may submit the required Public Health and Clinical Data established, this improvement activity data using any standard or format that Exchange Objective that includes the has been the subject of approximately is supported by the clinician’s health IT reporting of data to two different public 30 percent of the inquiries to the systems, including but not limited to, health agencies or clinical data Quality Payment Program help desk, certified functions within those systems. registries. demonstrating the desire for clinicians Such methods may include, but are not We note that under the Promoting to improve clinical care and overall limited to, a secure upload function on Interoperability performance category outcomes for patients diagnosed with a web portal, or submission via an there are five specific types of public COVID–19 by conducting this intermediary, such as a health health agencies and clinical data improvement activity, but also information exchange. To ensure registries that clinicians may submit indicating the need for further clarity in interoperability and versatility of the data to, including an immunization its activity description. data submitted, any electronic data registry or public health registry. The As a result, we are expanding the should be submitted to the clinical data submission requirements for the improvement activity to include registry using appropriate vocabulary Promoting Interoperability performance category would not be changed by this clinicians participating in the care of a standards for the specific data elements, improvement activity. Thus a clinician patient diagnosed with COVID–19 who such as those identified in the United could report COVID–19 data to a public simultaneously submit their clinical States Core Data for Interoperability health agency or clinical data registry as patient data to a clinical data registry for (USCDI) standard adopted in 45 CFR part of fulfilling one of the required research. Thus, in order to receive credit 170.213. for this improvement activity, a MIPS Public Health and Clinical Data As stated in the March 31st COVID– Exchange Objective reporting options eligible clinician or group must: (1) 19 IFC, we continue to believe that Participate in a COVID–19 clinical trial under the Promoting Interoperability participation in this activity is likely to performance category and include it in utilizing a drug or biological product to result in improved outcomes by treat a patient with a COVID–19 their Promoting Interoperability improving the collection of data performance category data submission. infection and report their findings clinicians use for the care of their through a clinical data repository or They could also receive credit for this patients. We believe that all clinical improvement activity if they fulfill the clinical data registry for the duration of data gathered in the treatment of their study; or (2) participate in the care requirements of the improvement patients diagnosed with COVID–19 may activity and include it in their of patients diagnosed with COVID–19 be helpful in finding a solution to end and simultaneously submit relevant improvement activity performance this pandemic. We believe encouraging category data submission. clinical data 68 to a clinical data registry clinicians collectively to utilize a We refer readers to section for ongoing or future COVID–19 clinical data registry for data reporting IV.H.3.h.(4)(d)(i)(C) of CY 2019 PFS research.69 Data would be submitted to could facilitate sharing of data for use in final rule (83 FR 59776 through 59777) the extent permitted by applicable additional clinical studies with larger where we discussed that high-weighting privacy and security laws. We are also sample sizes. These additional and should be used for activities that modifying the improvement activity larger clinical studies are likely to directly address areas with the greatest title to reflect this change. identify efficacy of certain treatments, impact on beneficiary care, safety, For purposes of this improvement which in turn could result in wider health, and well-being and/or is of high activity, clinical data registries must improvements in health outcomes, intensity, requiring significant meet the following requirements: (1) including reduced severity and investment of time and resources. We The receiving entity must declare that mortality due to COVID–19 across the believe this modified improvement they are ready to accept data as a nation. This could benefit patients activity should still be high-weighted clinical registry; and (2) be using the nationwide as well as improve clinical because it directly addresses an area practice and care delivery for the with the greatest impact on beneficiary 68 We refer readers to the U.S. National Library of Medicine website at https://clinicaltrials.gov/ct2/ patients of the clinician attesting to this care, safety, health, and well-being results?cond=COVID-19 for more information on improvement activity. We would like to particularly under this PHE for COVID– the COVID–19 clinical trials. encourage all clinicians to provide data 19 and participation in a clinical trial 69 We also refer readers to the National Institute through an open source clinical data and/or collection and submission of of Health website at https://search.nih.gov/search? utf8=%E2%9C%93&affiliate=nih&query=COVID- repository or clinical data registry, patient data to a clinical data registry or 19+registries&commit=Search for more information meaning that the results of research are repository requires a significant on COVID–19 clinical data registries. made public, including via publications investment of time and resources.
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In the CY 2019 PFS final rule (83 FR established as soon as possible because we are experiencing nationwide. We 59778 through 59782), we provided the PHE for COVID–19 continues to anticipate the need for COVID–19 details regarding the Annual Call for require considerable effort by clinicians clinical trials and data collection/ Activities and how stakeholders submit and researchers. As discussed above, we sharing through registries to continue potential improvement activities. In want to allow clinicians treating through CY 2021 at which time we will general, to nominate a new activity or patients with COVID–19 and providing reassess whether there remains a need request a modification to an existing that data to a clinical data registry for additional data sharing or if improvement activity, a stakeholder receive credit for this improvement preventive measures and clinical must submit a nomination form activity. treatments have advanced to the point available at www.qpp.cms.gov during where these type of data are not needed. the Annual Call for Activities. For this c. Continuation Through CY 2021 Performance Period We would like eligible clinicians to be improvement activity, we made a one- able to attest to this improvement time exception from our established As stated above, we previously added activity if it is still pertinent. We believe Annual Call for Activities timeframe the improvement activity to the that participation in this improvement and processes due to the PHE for Inventory for the CY 2020 performance activity is likely to result in improved COVID–19 (85 FR 19277). In this IFC, period only in response to the PHE for we are again making an exception from COVID–19. In this IFC, we are extending outcomes by improving the collection of our established Annual Call for the newly modified COVID–19 Clinical data clinicians use for the care of their Activities timeframe and processes due Data Reporting with or without Clinical patients as they monitor and manage to the ongoing PHE for COVID–19. We Trial improvement activity through the COVID–19. believe the modifications to the CY 2021 performance period due to the Table 1 displays a full description of improvement activity should be increased rate of COVID–19 infection the modified improvement activity.
TABLE 1—CONTINUATION WITH MODIFICATION OF IMPROVEMENT ACTIVITY FOR THE MIPS CY 2020–2021 PERFORMANCE PERIODS
Improvement Activity
Current Activity ID: ...... IA_ERP_3. Current Subcategory: ...... Emergency Response and Preparedness. Current Activity Title: ...... COVID–19 Clinical Trials. Current Activity Description: ...... To receive credit for this activity, a MIPS-eligible clinician must participate in a COVID–19 clinical trial uti- lizing a drug or biological product to treat a patient with a COVID–19 infection and report their findings through a clinical data repository or clinical data registry for the duration of their study. For more infor- mation on the COVID–19 clinical trials, we refer readers to the U.S. National Library of Medicine website at https://clinicaltrials.gov/ct2/results?cond=COVID-19. Current Weighting: ...... High. Change and Rationale: ...... This improvement activity addresses the COVID–19 pandemic, which has been deemed a public health emergency (PHE) by the Secretary of the Department of Health and Human Services.* While this im- provement activity was finalized in the interim final rule in response to the PHE for the CY 2020 perform- ance period only (85 FR 19230), we believe it should be continued for the CY 2021 performance period because the COVID–19 pandemic may extend into CY 2021, and we would like eligible clinicians to be able to attest to this improvement activity if it is still pertinent. We believe that clinicians who treat patients diagnosed with COVID–19 and simultaneously submit relevant data regarding that patient to a clinical data registry for COVID–19 research should also receive credit. We believe that all clinical data gathered in the treatment of patients diagnosed with COVID–19 may be helpful in finding a solution to end this pandemic. Encouraging clinicians collectively to utilize a clinical data registry for data reporting could facilitate sharing of data for use in additional clinical studies with larger sample sizes. These additional and larger clinical studies are likely to identify efficacy of certain treatments, which in turn could result in wider improvements in health outcomes, including reduced se- verity and mortality due to COVID–19 across the nation. This could benefit patients nationwide as well as improve clinical practice and care delivery for the patients of the clinician attesting to this improve- ment activity. We refer readers to section IV.H.3.h.(4)(d)(i)(C) of CY 2019 PFS final rule (83 FR 59776 through 59777) where we discussed that high-weighting should be used for activities that directly address areas with the greatest impact on beneficiary care, safety, health, and well-being and/or is of high intensity, requiring significant investment of time and resources. We believe this modified improvement activity should still be high-weighted because it directly addresses an area with the greatest impact on beneficiary care, safety, health, and well-being particularly under this PHE and participation in a clinical trial and/or clinical data registry requires a significant investment of time and resources. New Activity Title: ...... COVID–19 Clinical Data Reporting with or without Clinical Trial.
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TABLE 1—CONTINUATION WITH MODIFICATION OF IMPROVEMENT ACTIVITY FOR THE MIPS CY 2020–2021 PERFORMANCE PERIODS—Continued New Activity Description: ...... In order to receive credit for this improvement activity, a MIPS eligible clinician or group must: (1) Partici- pate in a COVID–19 clinical trial utilizing a drug or biological product to treat a patient with a COVID–19 infection and report their findings through a clinical data repository or clinical data registry for the dura- tion of their study; or (2) participate in the care of patients diagnosed with COVID–19 and simultaneously submit relevant clinical data to a clinical data registry for ongoing or future COVID–19 research. Data would be submitted to the extent permitted by applicable privacy and security laws. Examples of COVID–19 clinical trials may be found on the U.S. National Library of Medicine website at https:// clinicaltrials.gov/ct2/results?cond=COVID-19. In addition, examples of COVID–19 clinical data registries may be found on the National Institute of Health website at https://search.nih.gov/search ?utf8=%E2%9C%93&affiliate=nih&query=COVID-19+registries&commit=Search. For purposes of this improvement activity, clinical data registries must meet the following requirements: (1) The receiving entity must declare that they are ready to accept data as a clinical registry; and (2) be using the data to improve population health outcomes. Most public health agencies and clinical data reg- istries declare readiness to accept data from clinicians via a public online posting. Clinical data registries should make publically available specific information on what data the registry gathers, technical require- ments or specifications for how the registry can receive the data, and how the registry may use, re-use, or disclose individually identifiable data it receives. For purposes of credit toward this improvement activ- ity, any data should be sent to the clinical data registry in a structured format, which the registry is capa- ble of receiving. A MIPS-eligible clinician may submit the data using any standard or format that is sup- ported by the clinician’s health IT systems, including but not limited to, certified functions within those systems. Such methods may include, but are not limited to, a secure upload function on a web portal, or submission via an intermediary, such as a health information exchange. To ensure interoperability and versatility of the data submitted, any electronic data should be submitted to the clinical data registry using appropriate vocabulary standards for the specific data elements, such as those identified in the United States Core Data for Interoperability (USCDI) standard adopted in 45 CFR 170.213. New Weighting: ...... High. * For more information, see https://www.phe.gov/emergency/news/healthactions/phe/Pages/default.aspx.
J. Requirement for Long-Term Care and to help prevent the development individuals providing services under (LTC) Facilities To Test Facility and transmission of disease and arrangement and volunteers. We believe Residents and Staff for COVID–19 infection. these requirements will positively and After several months facing the effects substantially impact efforts to control Under sections 1866 and 1902 of the of COVID–19, we believe there exists a the spread of COVID–19 in LTC Act, providers of services seeking to need to strengthen the requirements for facilities. participate in the Medicare or Medicaid LTC facilities to better protect residents, program, or both, must enter into an members of a high-risk population. As 1. LTC Facility Resident and Staff agreement with the Secretary or the demonstrated by the PHE for COVID–19, Testing state Medicaid agency, as appropriate. a strong infection control program is The CDC published guidelines titled, LTC facilities seeking to be Medicare critical to protect the health and safety Testing Guidelines for Nursing Homes, and Medicaid providers of services must of both residents and healthcare which note that, ‘‘Nursing home be certified as meeting federal personnel of LTC facilities. The CDC has residents are at high risk for infection, participation requirements. LTC developed guidance identifying those serious illness, and death from COVID– facilities include skilled nursing who are ‘‘. . . more likely than others 19. Testing for [COVID–19] . . . can facilities (SNFs) for Medicare and to become severely ill . . .’’ if they detect current infections . . . among nursing facilities (NFs) for Medicaid. become infected with COVID–19 titled, residents in nursing homes. Testing is The federal participation requirements People Who Are at Increased Risk for an important addition to other infection for SNFs, NFs, and dually certified Severe Illness (https://www.cdc.gov/ prevention and control facilities, are set forth in sections 1819 coronavirus/2019-ncov/need-extra- recommendations aimed at preventing and 1919 of the Act and codified in the precautions/people-at-increased- [COVID–19] from entering nursing implementing regulations at 42 CFR part risk.html).70 Based on this guidance, homes, detecting cases quickly, and 483, subpart B. given the congregate nature of LTC stopping transmission.’’ 71 CMS Sections 1819(d)(4)(B) and facilities and the high-risk nature of the recognizes the need for facilities to 1919(d)(4)(B) of the Act explicitly population served, LTC facilities are at protect LTC facility staff while authorize the Secretary to issue any greater risk of COVID–19 outbreaks as preventing the spread of COVID–19 regulations deemed necessary to protect well as higher rates of incidence, within the facility. As a result, we are the health and safety of residents. morbidity, and mortality. To support amending the current infection control Sections 1819(d)(3) and 1919(d)(3) of national efforts to control the spread of requirements for LTC facilities at the Act authorize the Secretary to COVID–19, we are revising the LTC § 483.80 by adding a paragraph (h) that establish criteria for assessing a facility’s facility infection control regulations at requires a facility to test all of its compliance with such regulations with § 483.80 to establish a new requirement residents and facility staff for COVID– respect to infection control. Under the for LTC facilities to test their facility 19. Under this requirement, ‘‘staff’’ are explicit instructions of Congress, residents and staff, including considered any individuals employed existing regulations at § 483.80 require facilities to establish and maintain an 70 The Centers for Disease Control and 71 The Centers for Disease Control and infection control program designed to Prevention, (2020). People Who Are at Increased Prevention, (2020). Testing Guidelines for Nursing Risk for Severe Illness. Retrieved from: https:// Homes. Retrieved from: https://www.cdc.gov/ provide a safe, sanitary, and comfortable www.cdc.gov/coronavirus/2019-ncov/need-extra- coronavirus/2019-ncov/hcp/nursing-homes- environment in which residents reside precautions/people-at-increased-risk.html. testing.html.
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by the facility, any individuals that have • The criteria for conducting testing facility document that testing was arrangements to provide services for the of asymptomatic individuals specified completed and the results of each staff facility, and any individuals in this paragraph, such as the positivity test. We expect that this documentation volunteering at the facility. An example rate of COVID–19 in a county; would be located in the staff personnel of individuals providing services under • The response time for test results; record for all staff. In the case of arrangement include a hospice that may and individuals who are providing services have an agreement in accordance with • Other factors specified by the under arrangement at the facility, we the requirements for the use of outside Secretary that help identify and prevent expect that this documentation be resources under § 483.70(g) and (o) to the transmission of COVID–19. located in the record or file that the provide hospice care for residents in the We recognize that there may be facility maintains for the individual. In facility. We expect that only those additional factors that may be useful in the event that no such record or file is individuals that are physically working developing parameters for COVID–19 maintained, we expect that the on-site at the facility be required to be testing. As a result, we are soliciting agreement for the services that are being tested for COVID–19. The facility may comments on other factors the Secretary provided under arrangement include a have staff, including individuals should consider for LTC facility resident process for documenting these results. providing services under arrangement and staff testing for COVID–19. The Consistent with the documentation and volunteers, who provide services testing guidelines that have been requirements we are adding for LTC for the facility from an off-site location specified by the Secretary will be made facility staff, we are requiring at that is not physically located within the available to LTC facilities via CMS § 483.80(h)(3)(ii) that the facility facility, and such staff would not be memoranda, and CMS and CDC document in the resident’s medical required to be tested for COVID–19. websites. record that testing was offered, We are requiring at § 483.80(h)(2) that Other individuals may require access completed (as appropriate to the all resident and staff testing be resident’s testing status), and the results to the facility, such as state surveyors conducted in a manner that is consistent of each test. and ombudsmen. Sections 1819(c)(3)(A) with current professional standards of According the CDC, ‘‘The virus that and 1919(c)(3)(A) of the Act, and practice for conducting COVID–19 tests. causes COVID–19 is spreading very implementing regulations at Current ‘‘professional standards of easily and sustainably between people. § 483.10(f)(4)(i)(C), require that LTC practice’’ refers to those professional Information from the ongoing COVID– facilities provide representatives of the standards that apply at the time that the 19 pandemic suggests that this virus is State LTC Ombudsman with immediate care or service is delivered. Given that spreading more efficiently than access to any resident. In accordance COVID–19 is caused by a newly influenza.... In general, the more with the guidance published in a CMS discovered coronavirus, the standards of closely a person interacts with others Quality, Safety, and Oversight practice for testing for the virus may Memorandum on April 24, 2020 (and and the longer that interaction, the continue to change or evolve as more is 72 revised on July 9, 2020), during the PHE learned about the virus and as higher the risk of COVID–19 spread.’’ for COVID–19, in-person access to technological advances are developed. The nature of LTC facilities make residents may be restricted. If in-person Testing residents and staff for COVID– outbreaks of COVID–19 difficult to access is not advisable due to infection 19 in a manner that is consistent with control. To address the transmissibility control concerns and transmission of current professional standards of of COVID–19 in LTC facilities, we are COVID–19, facilities must facilitate practice is important to ensure accurate requiring at § 483.80(h)(4) that the resident communication (for example, and effective testing. A key factor in the facility take actions to prevent the by phone or through use of other effectiveness of testing is the turnaround transmission of COVID–19 when a technology) with the ombudsman time for results of the tests that are being resident or staff member, including (QSO–20–28–NH, https://www.cms.gov/ used. There are many different tests individuals providing services under files/document/qso-20-28-nh- available and facilities have the arrangement and volunteers, present revised.pdf). Regarding state surveyors, flexibility and discretion to select the with symptoms consistent with COVID– facilities have a statutory obligation to test that best suits their needs so long as 19 or who test positive for COVID–19. allow facility access to the surveyors. In the tests are conducted in accordance In accordance with the current accordance with the requirements at 42 with nationally recognized standards regulatory requirements for LTC CFR part 488, state agencies are and meet the response time for test facilities at § 483.80(g), facilities are responsible for ensuring that surveyors results as specified by the Secretary. required to electronically report are following CDC guidance for The CDC provides detailed information about COVID–19 in a infection prevention and refraining or recommendations for testing both standardized format specified by the returning to work. residents and healthcare personnel for Secretary, which includes reporting At § 483.80(h)(1), we are requiring COVID–19 at https://www.cdc.gov/ suspected and confirmed COVID–19 that resident and staff testing for coronavirus/2019-ncov/hcp/nursing- infections among residents and staff. COVID–19 be conducted based on homes-testing.html. These For facility staff, we expect facilities parameters set forth by the Secretary. recommendations provide information to restrict the access to the facility for These parameters may include, but are about the use of specific testing methods any staff member, including individuals not limited to: and focus on how testing can be added providing services under arrangement • Testing frequency; to other infection prevention and and volunteers, who presents with • The identification of any facility control practices to keep COVID–19 out symptoms consistent with COVID–19 or resident or staff diagnosed with COVID– of facilities, detect cases quickly, and who tests positive for COVID–19 until 19 in the facility; stop its transmission. he or she is deemed to be safe to return • The identification of any facility We are requiring at § 483.80(h)(3)(i) to work. The testing guidelines specified resident or staff with symptoms that for each instance of resident or staff 72 The Centers for Disease Control and Prevention consistent with COVID–19 or with COVID–19 testing, which includes (2020). How COVID–19 Spreads. Retreived from: known or suspected exposure to testing of individuals providing services https://www.cdc.gov/coronavirus/2019-ncov/ COVID–19; under arrangement and volunteers, the prevent-getting-sick/how-covid-spreads.html.
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by the Secretary include specified state and local health departments on provide additional suggestions for return to work criteria. Following the the availability of testing supplies, managing staff shortages. return to work criteria established by obtaining testing supplies, and We believe that these new regulatory the Secretary will ensure that staff, processing test results when necessary. actions strengthen CMS’ response to the including individuals providing As appropriate, facilities should also PHE for COVID–19, and reaffirms our services under arrangement and coordintate with their tribal commitment to transparency and volunteers, who are still capable of representatives and authorities for these protecting the health and safety of LTC spreading the virus do not have access resources as well. Facilities may also residents. As discussed in section III. of to the facility, thus increasing resident coordinate with their local certified this IFC, ‘‘Waiver of Proposed safety by removing any potential threats laboratories covered under Clinical Rulemaking’’, we believe the urgency of of exposure. These proactive efforts Laboratory Improvement Amendments this PHE for COVID–19 constitutes good support a facility’s ability to prevent (CLIA) on the availability of testing cause to waive the normal notice-and- outbreaks, create opportunities for early supplies, obtaining testing suppliers, comment process under the APA and intervention, and mitigate the and processing test results. section 1871(b)(2)(C) of the Act. transmission of the virus between Considerations such as access to Waiving notice and comment is in the healthcare personnel and facility adequate testing supplies and public interest, because time is of the residents. arrangements for acquiring testing essence in controlling the spread of For facility residents who present supplies must be addressed by a COVID–19, and universal resident and with symptoms consistent with COVID– facility’s infection prevention and staff testing will assist public health 19 or who test positive for COVID–19, control plan. Additionally, the testing officials in detecting outbreaks and we expect the facility to take measures plan must include any arrangements saving lives. to mitigate the transmission of the virus that may be necessary to conduct, III. Waiver of Proposed Rulemaking within the facility that may include process, and receive test results prior to We ordinarily publish a notice of resident cohorting, consistent with the administration of the required tests. CDC’s guidance, Responding to proposed rulemaking in the Federal LTC facilities are currently required to Coronavirus (COVID–19) in Nursing Register and invite public comment on have policies and procedures in place to Homes.73 Cohorting involves preventing the proposed rule before the provisions address the use of volunteers in an the spread of COVID–19 in the facility of the rule are finalized, either as emergency under the emergency by confining residents who are known proposed or as amended in response to or suspected to have COVID–19 to a preparedness requirements at public comments, and take effect, in specified area to prevent contact with § 483.73(b)(6). During this pandemic, accordance with the Administrative other residents who do not have (or the use of volunteers and other Procedure Act (APA) (Pub. L. 79–404), suspected to have) COVID–19. The emergency staffing strategies, including 5 U.S.C. 553, and, where applicable, CDC’s current recommendations include the use of state and federal healthcare section 1871 of the Act. Specifically, 5 avoiding the sharing of staff between professionals, is important in addressing U.S.C. 553 requires the agency to residents that are COVID–19 positive staff shortages. Facilities are expected to publish a notice of the proposed rule in and residents that have not tested assess their ability to replace workers the Federal Register that includes a positive. who can no longer work, either on a reference to the legal authority under We acknowledge that not all residents short term basis or permanently, with which the rule is proposed, and the and staff will consent to COVID–19 personnel trained for the vacant terms and substance of the proposed testing. In accordance with the positions. The LTC facility should rule or a description of the subjects and requirements at § 483.10(c)(6), residents maintain an appropriate staffing level at issues involved. Further, 5 U.S.C. 553 have the right to refuse and/or all times to provide a safe work requires the agency to give interested discontinue treatment. In addition, staff environment for healthcare personnel parties the opportunity to participate in retain the right to refuse COVID–19 (HCP) and safe resident care. As the the rulemaking through public comment testing. There may also be instances in COVID–19 pandemic continues, staffing before the provisions of the rule take which facility residents or staff are not shortages will likely occur due to HCP effect. Similarly, section 1871(b)(1) of able to be tested, such as the presence exposures and illness. Due to the unique the Act requires the Secretary to provide of anatomical or other medical challenges in managing the mitigation of for notice of the proposed rule in the contraindications. At § 483.80(h)(5), we COVID–19, facilities should assess their Federal Register and a period of not less are requiring that the facility have staffing needs and the minimum than 60 days for public comment for procedures for addressing residents and number of staff needed to provide a safe rulemaking carrying out the staff, including individuals providing work environment and care for administration of the insurance services under arrangement and residents. In addition, facilities should programs under title XVIII of the Act. volunteers, who refuse or are unable to be prepared to make various Section 1871(b)(2)(C) of the Act and 5 be tested. In these instance, we also adjustments such as using volunteers, U.S.C. 553 authorize the agency to expect facilities to take steps to and adjusting work and time-off waive these procedures, however, if the maintain the health and safety of its schedules. Facilities should also be agency for good cause finds that notice staff and residents who have not been prepared to contact ‘‘The Emergency and comment procedures are diagnosed with COVID–19 that may System for Advance Registration of impracticable, unnecessary, or contrary include limiting the staff’s access to the Volunteer Health Professionals’’ to the public interest and incorporates a facility and cohorting residents. (https://www.phe.gov/esarvhp), their statement of the finding and its reasons We are requiring at § 483.80(h)(6) that local healthcare coalition, federal, state in the rule issued. the LTC facility must coordinate with and local healthcare partners for Section 553(b)(B) of title 5 of the U.S. assistance with staffing shortages. Code ordinarily requires a 30-day delay 73 The Centers for Disease Control and Further resources and guidelines, such in the effective date of a final rule from Prevention, (2020). Responding to Coronavirus as those provided by the CDC at https:// the date of its publication in the Federal (COVID–19) in Nursing Homes. Retrieved from: https://www.cdc.gov/coronavirus/2019-ncov/hcp/ www.cdc.gov/coronavirus/2019-ncov/ Register. This 30-day delay in effective nursing-homes-responding.html. hcp/mitigating-staff-shortages.html, can date can be waived, however, if an
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agency finds good cause to support an beneficiaries, Medicaid recipients, and Laboratory testing has been a earlier effective date. Section healthcare workers is of primary significant source of fraud and abuse in 1871(e)(1)(B)(i) of the Act also prohibits importance. This IFC directly supports the Medicare program. We have already a substantive rule from taking effect that goal by requiring COVID–19 found that schemes are occurring before the end of the 30-day period reporting by hospitals, CAHs, and CLIA whereby fraudulent laboratories and beginning on the date the rule is issued laboratories; by requiring testing of telemarketing companies are directly or published. However, section nursing home staff and residents; and by contacting beneficiaries, oftentimes 1871(e)(1)(B)(ii) of the Act permits a strengthening enforcement of important using stolen identifying information, to substantive rule to take effect before 30 nursing home infection prevention and solicit items and services payable by days if the Secretary finds that a waiver control requirements related to COVID– Medicare under the guise of COVID–19 of the 30-day period is necessary to 19 reporting. It is critically important treatment or prevention. In fact, an HHS comply with statutory requirements or that we implement the policies in this Office of Inspector General (HHS–OIG) that the 30-day delay would be contrary IFC as quickly as possible. As we are in fraud alert 75 describes situations in to the public interest. Furthermore, the midst of the PHE for COVID–19, we which scammers are offering section 1871(e)(1)(A)(ii) of the Act find good cause to waive notice and unapproved and illegitimate COVID–19 permits a substantive change in comment rulemaking as we believe it tests and other services to Medicare regulations, manual instructions, would be impracticable and contrary to beneficiaries in exchange for personal interpretive rules, statements of policy, the public interest for us to undertake details, including Medicare information. or guidelines of general applicability normal notice and comment rulemaking The financial impact of this fraud risk under Title XVIII of the Act to be procedures. For the same reasons, is exacerbated by the ability of the applied retroactively to items and because we cannot afford any delay in laboratory to perform expensive add-on services furnished before the effective effectuating this IFC, we find good cause tests, such as to confirm or rule-out date of the change if the failure to apply to waive the 30-day delay in the diagnoses other than COVID–19, that are the change retroactively would be effective date and, moreover, to not medically necessary. contrary to the public interest. Finally, establish these policies in this IFC We also believe that allowing the Congressional Review Act (CRA) applicable as of the date this rule is Medicare payment for one test without (Pub. L. 104–121, Title II) requires a published. an order will allow beneficiaries access delay in the effective date for major In this IFC, we are revising the to urgent testing, as we outlined in the rules unless an agency finds good cause previous policy outlined in the May 8th May 8th COVID–19 IFC, yet also that notice and public procedure are COVID–19 IFC, which allowed for broad provide sufficient opportunity for impracticable, unnecessary, or contrary COVID–19 testing for a single beneficiaries to seek out the medical to the public interest, in which case the beneficiary without a physician order, care needed to ensure that the test rule shall take effect at such time as the by establishing that only a single results are interpreted and acted upon agency determines. 5 U.S.C. 801(a)(3), COVID–19 test and one of each other appropriately, both from the perspective 808(2). related test (as listed in the May 8th of the individual beneficiary and also in On January 30, 2020, the International COVID–19 IFC) without a treating the context of the area of the country in Health Regulations Emergency physician or NPP order is reasonable which the beneficiary is located. Committee of the World Health and necessary. We are also establishing Executing an effective, regional Organization (WHO) declared the a policy whereby the orders of response to COVID–19 disease requires outbreak a ‘‘Public Health Emergency of pharmacists and other practitioners that coordinated effort and guidance by international concern’’. On January 31, are allowed to order laboratory tests in qualified medical professionals who 2020, pursuant to section 319 of the accordance with state scope of practice know how to interpret and react to PHSA, the Secretary determined that a and other pertinent laws can fulfill the testing results. When a physician or PHE exists for the United States to aid requirements related to orders for other healthcare provider is able to the nation’s healthcare community in covered COVID–19 tests for Medicare counsel patients who are being tested responding to COVID–19. On March 11, patients. for COVID–19, beneficiaries may be 2020, the WHO publicly declared Just as the previous policy was more likely to isolate themselves more COVID–19 a pandemic. On March 13, developed based on what was known quickly, which may reduce transmission 2020, the President declared the about COVID–19 at the time, as in the community. Consistent with this COVID–19 pandemic a national additional information has become information, CMS and CDC recently emergency. Effective July 25, 2020, the available, policies require modification. announced that they are taking steps to Secretary renewed the January 31, 2020 Whereas we are committed to reducing ensure that physicians and other determination that was previously impediments to access to COVID–19 practitioners who counsel patients on renewed on April 21, 2020, that a PHE testing and the other related tests COVID–19 testing are paid for these 76 exists and has existed since January 27, identified in the May 8th COVID–19 services. 2020. This declaration, along with the IFC, we believe that it is contrary to the We also believe that pharmacists and Secretary’s January 30, 2020 declaration public interest to allow open-ended other healthcare professionals play an of a PHE, conferred on the Secretary coverage of COVID–19 testing without important role in the response to the certain waiver authorities under section an order from a physician, practitioner, PHE for COVID–19, and to further or other healthcare professional. Our ensure that beneficiaries continue to 1135 of the Act. On March 13, 2020, the determination to revise the May 8th IFC have access to appropriate COVID–19 Secretary authorized waivers under policy is due both to the significant testing even when some professional section 1135 of the Act, effective March potential for fraud, waste, and abuse, as care is not separately billable under 1, 2020.74 Ensuring the health and safety of all well as public health and safety issues 75 Americans, including Medicare that would arise from beneficiaries https://oig.hhs.gov/coronavirus/fraud-alert- being subjected to repeated testing covid19.asp. without proper medical attention or 76 https://www.cms.gov/newsroom/press-releases/ 74 https://www.phe.gov/emergency/news/ cms-and-cdc-announce-provider-reimbursement- healthactions/section1135/Pages/covid19- oversight, including public health issues available-counseling-patients-self-isolate-time- 13March20.aspx. with the ongoing spread of COVID–19. covid-19.
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Medicare, we are establishing a policy program integrity and clinical issues financially by the PHE for COVID–19. whereby otherwise covered COVID–19 that have arisen since the publication of We believe that it is contrary to the and specified related tests ordered by the May 8th COVID–19 IFC. We believe public interest to require full notice and pharmacists and other healthcare that it is contrary to the public interest comment because delayed clarification professionals who are authorized to to allow open-ended coverage of may prevent some issuers from offering order diagnostic laboratory tests in COVID–19 testing without an order due temporary premium credits and may accordance with state scope of practice to the significant potential for fraud, lead some enrollees who have been and other pertinent laws are covered for waste, and abuse, as well as public adversely affected financially by the duration of the PHE for COVID–19. health and safety issues that would arise COVID–19 to lose health insurance In this IFC, we are updating the from beneficiaries being subjected to coverage. extraordinary circumstances exceptions testing without proper medical In this IFC, we similarly clarify the (ECEs) we granted on March 22, 2020, necessity or oversight. MLR reporting and rebate requirements for the ESRD QIP, HAC Reduction In this IFC, we clarify the data in 45 CFR part 158 for issuers that elect Program, HRRP, and Hospital VBP reporting requirements for issuers of to provide temporary premium credits Program in response to the PHE for risk adjustment covered plans to specify in 2020 such that these issuers must COVID–19. We are also revising the FY that, for the purposes of 2020 benefit report as earned premium the actual 2022 performance period under the SNF year risk adjustment data submissions, premium billed to enrollees, taking into VBP Program. issuers of risk adjustment-covered plans account any temporary premium credits We believe that these policy updates that provide temporary premium credits as a reduction in premium for the are immediately necessary to provide must report to their EDGE server the applicable months of 2020 coverage. clarification to hospitals, dialysis adjusted plan premiums that reflect These changes are necessary to align facilities, and SNFs on which reporting actual premiums billed to enrollees, MLR calculations with the flexibilities requirements under the ESRD QIP, HAC taking the premium credits into account provided to issuers and states elsewhere Reduction Program, HRRP, Hospital as a reduction in premiums. In addition, in this rulemaking to respond to the VBP Program, and SNF VBP Program we clarify that, consistent with the PHE for COVID–19. HHS believes that are excepted and how the exceptions reporting of the actual premium these clarifications are immediately will impact program scoring. These amounts billed to enrollees for 2020 necessary to enable issuers to quickly updates will also clarify how optionally benefit year risk adjustment data and accurately evaluate the financial submitted data for excepted reporting submissions, HHS’s calculation of risk impact of offering temporary premium periods will be used. Since existing Q1 adjustment payment and charges for the credits to enrollees to support and Q2 2020 deadlines are upcoming in 2020 benefit year under the state continuity of coverage during the PHE August, October and November 2020, payment transfer formula 77 will be for COVID–19. We believe that it is providing this clarification now will calculated using the statewide average contrary to the public interest to require allow hospitals, facilities and SNFs to premium that reflects actual premiums full notice and comment because have the information they need and the billed, taking into account any delayed clarification may prevent some flexibility to determine how best to temporary premium credits provided as issuers from offering temporary direct their resources during the PHE for a reduction in premium for the premium credits and may lead some COVID–19. Therefore, we believe that it applicable months of 2020 coverage, enrollees who have been adversely would be impracticable and contrary to including premium credits that were not affected financially by COVID–19 to lose the public interest to undertake full provided in a manner consistent with health insurance coverage. notice and comment rulemaking to the August 4, 2020 memo. We believe In this IFC, we are including CPT and implement these policies. that, in light of the temporary premium HCPCS codes for CTBS and telephone The IFC also modifies the calculation credits authorized in CMS guidance E/M services to the definition of of the 2022 Part C and D Star Ratings to during the PHE for COVID–19, primary care services that is used for address the application of the extreme immediate clarification on risk purposes of the MIPS beneficiary and uncontrollable circumstances adjustment reporting requirements are assignment methodology for the CMS policy for the PHE for COVID–19. Web Interface and the CAHPS for MIPS necessary in order to maintain Applying the 60 percent rule to 2022 survey in order to ensure these services confidence in the risk adjustment Star Ratings would result in removal of are included in determining where program and stability in the individual a large fraction of contracts from beneficiaries receive the plurality of and small group (or merged) insurance threshold calculations, resulting in too their primary care for purposes of markets, as issuers have already begun few contracts to reliably calculate cut beneficiary assignment. Without the to prepare for 2020 benefit year risk points for non-CAHPS measures using inclusion of these codes in the MIPS adjustment data submission. These the clustering methodology and too few beneficiary assignment methodology for clarifications are also immediately contracts to reliably calculate and apply the CMS Web Interface and CAHPS for necessary to enable issuers to move Reward Factors for 2022 Star Ratings; MIPS survey for the 2020 MIPS failure to adopt the change would result quickly to evaluate the impact of these performance year and any subsequent in CMS’ inability to calculate 2022 Star policies and, for those that elect to do performance year that starts during the Ratings. This change to the calculation so, to begin providing this premium PHE for COVID–19, we would not be methodology for the 2022 Star Ratings is relief to support continuity of coverage able to adequately account for the ways urgently necessary to ensure that MA for those enrollees adversely affected in which beneficiaries are receiving organizations, cost plans, and Part D primary care services during the PHE for 77 The state payment transfer formula refers to the plan sponsors are aware during the 2020 part of the HHS risk adjustment methodology COVID–19 and as a result, the process measurement period how their established consistent with 45 CFR 153.320 that to derive assignment and sampling of performance in the 2020 measurement calculates payments and charges at the state market beneficiaries for the CMS Web Interface period will be used in calculating the risk pool level. See, for example, the 2020 Payment and CAHPS for MIPS survey would not Notice final rule, 84 FR at 17485. The state payment Star Ratings. transfer calculations are performed prior to the be able to comprehensively capture how We believe that the clarifications are calculation of the high-cost risk pool payment and primary care services are being immediately necessary to address both charge terms. furnished to beneficiaries, which may
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cause many groups and virtual groups to thereby delay the effective date of this diagnose a possible case of COVID–19 have insufficient sample sizes to be able IFC. We find good cause to waive notice must report SARS–CoV–2 test results in to administer the 2020 CAHPS for MIPS of proposed rulemaking under the APA, such form and manner, and at such survey or report data for the quality 5 U.S.C. 553(b)(B), and section timing and frequency, as the Secretary performance category using the CMS 1871(b)(2)(C) of the Act. For those same may prescribe. We estimate that Web Interface measures. Therefore, reasons, as authorized by the CRA, 5 approximately 30 percent (n (number) these codes are necessary to ensure a U.S.C. 808(2), we find it is impracticable =77,024) of the total CLIA-certified comprehensive assessment of MIPS and contrary to the public interest not laboratories 78 could potentially be quality performance and avoid imposing to waive the delay in effective date of performing SARS–CoV–2 testing. We undue burden on clinicians during the this IFC under the CRA, 5 U.S.C. are soliciting public comments related PHE for COVID–19. 801(a)(3). Therefore, we find there is to the number of laboratories performing Lastly, under the MIPS Program in good cause to waive the CRA’s delay in SARS–CoV–2 testing. Each of these this IFC, we are also: (1) Expanding IA_ effective date pursuant to the CRA, 5 laboratories would incur a one-time cost ERP_3 to include clinicians U.S.C. 808(2). for the time needed to develop a participating in the care of a patient mechanism to track and collect SARS– diagnosed with COVID–19 who IV. Collection of Information CoV–2 test results to be in compliance simultaneously submit their clinical Requirements with this new requirement. We estimate patient data to a clinical data registry for Under the Paperwork Reduction Act it would take each laboratory 5 to 7 research; (2) updating the title; and (3) of 1995, we are required to provide 30- hours to develop such a mechanism. extending the activity through the CY day notice in the Federal Register and The burden hours range from 385,120 to 2021 performance period. For this solicit public comment before a 539,168 (77,024 laboratories × 5 or 7 improvement activity, we are making a collection of information requirement is hours). A management level employee one-time exception from our established submitted to the Office of Management (11–9111) would perform this task at an Annual Call for Activities timeframe and Budget (OMB) for review and hourly wage of $55.37 per hour as and processes due to the ongoing PHE approval. In order to fairly evaluate published by the Bureau of Labor for COVID–19. The modifications to the whether an information collection Statistics (BLS) in 2019).79 The wage improvement activity should be should be approved by OMB, section rate would be doubled to $110.74 to established as soon as possible because 3506(c)(2)(A) of the Paperwork include overhead and fringe benefits. In the PHE for COVID–19 continues to Reduction Act of 1995 (PRA) requires addition, a database administrator/ require considerable effort by clinicians that we solicit comment on the architect (15–1245) would be needed to and researchers and this modified following issues: perform this task at an hourly wage of improvement activity would allow • The need for the information $46.21 per hour as published by the BLS clinicians who treat patients with collection and its usefulness in carrying in 2019.80 The wage rate would be COVID–19 and provide data to a clinical out the proper functions of our agency. doubled to $92.42 to include overhead data registry to receive credit under • The accuracy of our estimate of the and fringe benefits. The total hourly MIPS. We believe that this improvement information collection burden. wage would be $203.16 ($110.74+ activity as modified would incentive • The quality, utility, and clarity of $92.42). The total cost would range from clinicians to submit COVID–19 data to the information to be collected. $78,240,979 to $109,537,371 (385,120 to clinical data registries, which is • Recommendations to minimize the 539,168 × $203.16). imperative to help combat the PHE for information collection burden on the COVID–19 as the data could be used to affected public, including automated B. Laboratory Costs To Collect SARS– inform research and treatment options collection techniques. CoV–2 Test Results for Reporting and potentially save lives. We believe As discussed in section II. of this IFC, Collection of Information for Clinical that all clinical data gathered in the we are adding §§ 493.41 and 493.1100(a) Laboratories treatment of patients diagnosed with to require that, during the PHE for COVID–19 may be helpful in finding a We are soliciting public comment on COVID–19, each laboratory that solution to end this pandemic, and the each of the section 3506(c)(2)(A)- performs a SARS–CoV–2 test must earlier the data is collected and shared, required issues for the following report SARS–CoV–2 test results in such the sooner clinical treatment can evolve information collection requirements form and manner, and at such timing and a solution may be found. In this (ICRs). The requirements and burden and frequency, as the Secretary may IFC, we are also extending the newly related to laboratory test result reporting prescribe. We estimate that the modified COVID–19 Clinical Data is covered under OMB Control Number approximately 30 percent (n=77,024) of Reporting with or without Clinical Trial 0920–1299. CDC will be collecting the the total CLIA-certified laboratories improvement activity through the CY test results and other information could potentially be performing SARS– 2021 performance period due to the related to SARS–CoV–2 testing. CDC CoV–2 and need to collect and report increased rate of COVID–19 infection will then provide the information to test results in accordance with §§ 493.41 we are experiencing nationwide. We CMS to ensure that CLIA-certified and 493.1100(a). For purposes of this believe that the continued and laboratories are reporting as required IFC, we are estimating a wide range of increasing need for a solution to the under the CLIA regulations. PHE for COVID–19 indicates that we 78 Includes Certificate of Waiver (CoW), A. Laboratory Costs To Develop a should encourage both participation in Certificate of Provider-Performed Microscopy Mechanism to Track SARS–CoV–2 Test (PPM), Certificate of Compliance (CoC) and clinical trials, as well as data collection Results Certificate of Accreditation (CoA). Based on the and sharing through clinical data CLIA web page the total number of laboratories as registries as soon as practicable and at As discussed in section II. of this IFC, of March 2020 are as follows: CoW, n=193,474; least through CY 2021. we are adding §§ 493.41 and 493.1100(a) PPM n=30,120; CoC n=17,432; CoA n=15,721; total For this IFC, we believe it would be to require that, during the PHE for =256,747. 79 https://www.bls.gov/oes/current/oes_nat.htm. impracticable and contrary to the public COVID–19, each CLIA-certified (11–9111). interest for us to undertake normal laboratory that performs a test that is 80 https://www.bls.gov/oes/current/oes_nat.htm. notice and comment procedures and to intended to detect SARS–CoV–2 or to (15–1245).
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test volumes to approximate a range laboratories × 0.5 or 3 hours). A or 30 hours). A management level from low volume laboratory to a healthcare support worker (31–9099) employee (11–9111) would perform this laboratory using high throughput would perform this task at an hourly task at an hourly wage of $55.37 per technology. We estimate that a low wage of $19.24 per hour as published by hour as published by the BLS in 2019.85 volume laboratory may report out 20 the BLS in 2019.82 The wage rate would The wage rate would be doubled to test results in a 24-hour period and a be doubled to $38.48 to include $110.74 to include overhead and fringe high throughput laboratory may report overhead and fringe benefits. The total benefits. The total cost would range out 500 test results during the same cost would range from $1,481,942 to from would range from $24,917 to period. We estimate it would take each $8,891,651 (38,512 to 231,072 × $38.48) $29,900 (225 to 270 hours × $110.74). laboratory approximately 0.5 hours for per day to collect the required F. Accreditation Organization (AO) and low volume laboratories and information. Reporting of test results Exempt State (ES) Costs To Update approximately 3 hours per day for a would be an ongoing burden for each Policies and Procedures Related to high throughput laboratory to collect laboratory performing this type of Reporting Laboratories Performing this information to be in compliance testing. SARS–CoV–2 Testing That Do Not with this new requirement. The burden D. Laboratory Costs to Update Policies Report Results as Required hours range from 38,512 to 231,072 and Procedures (77,024 laboratories × 0.5 or 3 hours). A We would expect the seven approved clinical laboratory technician would We expect that the approximately AOs and two ESs would have to perform this task at an hourly wage of 77,024 laboratories performing SARS– develop policies and procedures related $26.34 per hour as published by the BLS CoV–2 testing would incur costs for the to identifying laboratories that do not in 2019.81 The wage rate would be time needed to review the revised report SARS–CoV–2 test results in order doubled to $52.68 to include overhead reporting regulations and update their to report these laboratories to CMS. In and fringe benefits. The total cost would policies and procedures to be in the case of the accredited laboratories, range from $2,028,812 to $12,172,873 compliance. We estimate the total one- the laboratories identified as not (38,512 to 231,072 × $52.68) per day to time burden per laboratory to review reporting SARS–CoV–2 results as collect the required information. and update affected policies and required would result in CMS taking an Collection of test results would be an procedures is 5 hours. The burden hours enforcement action as described in ongoing burden for each laboratory are 385,120 (77,024 laboratories × 5 section II. of this IFC. As stated in performing this type of testing. hours). A management level employee section IV.G. of this IFC, the CLIA would perform this task at an hourly regulations require both the AOs and C. Laboratory Costs To Report SARS– wage of $55.37 per hour as published by ESs to have requirements that are equal CoV–2 Test Results the BLS in 2019.83 The wage rate would to, or more stringent, the CLIA As discussed in section II. of this IFC, be $110.74 to include overhead and condition-level requirements, so we we are adding §§ 493.41 and 493.1100(a) fringe benefits. The total estimated cost would expect the AOs and ESs to have to require that, during the PHE for would be $42,648,189 (385,120 hours × equivalent reporting requirements to COVID–19, each laboratory that $110.74). CMS. AOs do not impose CMPs; performs a SARS–CoV–2 test must however, ESs do have the ability to report SARS–CoV–2 test results in such E. Accreditation Organization (AO) and impose CMPs so we would expect ESs form and manner, and at such timing Exempt State (ES) Costs To Update to have an equivalent penalty structure and frequency, as the Secretary may Standards for Reporting SARS–CoV–2 to CMS. The ES are generally approved prescribe. We estimated the number of Test Results by CMS to operate their own oversight laboratories as outlined in section IV.A. We would expect the seven approved programs so we would expect that the of this IFC. We estimate that the AOs and two ESs would have to review two ESs would report these laboratories approximately 30 percent (n=77,024) of their standards, provide updates and to CMS, but would then impose the the total CLIA-certified laboratories submit the changes to CMS related to penalties based on their CMS-approved could potentially be performing SARS– SARS–CoV–2 test reporting for approval updated standards. We are requiring the CoV–2 and need to report test results in (9 organizations/exempt states × 25 or AOs/ESs to report this information to accordance with §§ 493.41 and 30 hours). The CLIA regulations require CMS no later than 10 days from 493.1100(a). both the AOs and ESs to have identifying a laboratory that has failed For purposes of this IFC, we are requirements that are equal to, or more to report SARS–CoV–2 test results as estimating a wide range of test volumes stringent than the CLIA condition-level required. We assume a one-time cost of to approximate a range from low volume requirements, and the laboratory would 10 to 15 hours to develop the policy and laboratory to a laboratory using high meet the condition-level requirements if procedures needed to reflect the new throughput technology. We estimate it were inspected against these requirements for reporting of SARS– that a low volume laboratory may report requirements.84 We assume a one-time CoV–2 test results. The burden hours out 20 test results in a 24-hour period cost of 25 to 30 hours to identify the range from 90 to 135 (9 AO/ESs × 10 or and a high throughput laboratory may applicable legal obligations and to 15 hours). A management level report out 500 test results during the develop the updated standards needed employee (11–9111) would perform this same period. We estimate it would take to reflect the new requirements for task at an hourly wage of $55.37 per each laboratory approximately 0.5 hours SARS–CoV–2 testing. The burden hours hour as published by the BLS in 2019. for low volume laboratories and range from 225 to 270 (9 AO/ESs × 25 The wage rate would be doubled to approximately 3 hours for a high $110.74 to include overhead and fringe throughput laboratory to report this 82 https://www.bls.gov/oes/current/oes_nat.htm. benefits. The total cost would range information to be in compliance with (31–9099). from $9,967 to $14,950 (90 to 135 hours 83 _ this new requirement. The burden hours https://www.bls.gov/oes/current/oes nat.htm. × $110.74). In addition, the AOs and ESs (11–9111). range from 38,512 to 231,072 (77,024 84 CLIA Requirements at 42 CFR 493.551 (https:// would be required to report to CMS www.ecfr.gov/cgi-bin/text-idx?SID 81 https://www.bls.gov/oes/current/oes_nat.htm. =1248e3189da5e5f936e55315402bc38b 85 https://www.bls.gov/oes/current/oes_nat.htm. (29–2010). &node=pt42.5.493&rgn=div5%23se42.5.493_1551). (11–9111).
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every 10 days those laboratories that doubled to $66.20 to include overhead for hospitals and § 485.640 for CAHs), have not reported test results as and fringe benefits. The total cost would requiring hospitals and CAHs to required. The annual total number of range from would range from $1,192 to electronically report information related times each AO and ES is required to $2,383 (18 to 36 hours × $66.20) per 10 to confirmed or suspected COVID–19 report to CMS is 36.5. We assume a days for an annual total of $43,508 to cases in a standardized format, and at a weekly cost of 2 to 4 hours to identify $86,980 ($1,192 to $2,383 × 36.5). frequency, specified by the Secretary. the laboratories and submit the G. Condition of Participation (CoP) Our preliminary estimates for these information to CMS. The total burden Requirements for Hospitals and Critical reporting activities can be found in hours range from 18 to 36 (9 AO/ESs × Access Hospitals (CAHs) To Report Tables 2 and 3. 2 or 4 hours). A computer network COVID–19 Data as Specified by the support specialist (15–1231) would Secretary During the PHE for COVID–19 perform this task at an hourly wage of $33.10 per hour as published by the BLS We are revising the regulations by in 2019.86 The wage rate would be adding provisions to the CoPs (§ 482.42
TABLE 2—ESTIMATED ANNUALIZED BURDEN HOURS
Average Number of Number of burden per Total burden Type of respondent Form name respondents responses per response hours respondent (in hours)
Hospitals and CAHs ...... HHS Teletracking COVID–19 Portal 5500 365 1.5 3,011,250
Total ...... 3,011,250
TABLE 3—ESTIMATED ANNUALIZED RESPONDENT BURDEN COSTS
Total burden Total respondent Type of respondent hours Hourly wage rate costs
Hospital Staff—Registered Nurses ...... 3,011,250 * $70.48 $212,232,900
Total ...... 212,232,900 * The wage rate includes overhead and fringe benefits.
The burden associated with these In the event that no such record or file criteria for conducting a test, and the reporting activities will be submitted is maintained, we expect that the response time for test result, not all staff under OMB Control Number 0990– agreement for the services that are being will be tested on the same frequency. NEW. provided under arrangement include a For example, a third of the staff process for documenting these results. H. Requirements for Long-Term Care population could be tested weekly and Consistent with the documentation (LTC) Facilities To Test Facility two thirds of the staff population could requirements we are adding for LTC Residents and Staff for COVID–19 receive a test every ten days or monthly. facility staff, we are requiring at However, with variables that are not As discussed in section II.J. of this § 483.80(h)(3)(ii) that the facility knowable at this time, we have provided IFC, we are revising the regulations at document in the resident’s medical an estimate based on an average § 483.80(h) to require LTC facilities to record that testing was offered, schedule of all staff receiving a test test residents and facility staff, completed (as appropriate to the every 14 days and residents to be tested including individuals providing resident’s testing status), and the results monthly during the PHE for COVID–19. services under arrangement and of each test. We estimate that it would take 2 volunteers, for COVID–19. We are also Based on data from the Kaiser Family requiring at § 483.80(h)(3)(i) that for Foundation’s report on coronavirus minutes to provide documentation in each instance of resident and staff statistics (https://www.kff.org/report- 1.8 million records of staff members for COVID–19 testing (which includes section/covid-19-and-workers-at-risk- 30 weeks (from September 2020 to testing of individuals providing services examining-the-long-term-care- March 2021) to record the test was under arrangement and volunteers), the workforce-tables), we estimate that 1.8 administered and to record the test facility document that testing was million LTC facility staff would be results. We also estimate that it would completed and the results of each test. tested for COVID–19 initially for each take 2 minutes to provide the same We expect that this documentation facility. We also estimate that 1.3 documentation in 1.3 million medical would be located in the staff personnel million residents would be tested. We records of residents for the same period record for all staff. In the case of have estimated that it will take of time. The annual and ongoing cost to individuals who are providing services approximately 2 minutes to locate a comply with this requirement can be under arrangement at the facility, we staff’s file and document the result of a further assessed based on guidelines expect that this documentation be COVID–19 test. Furthermore, we established by the Secretary. The located in the record or file that the estimate that, based on the guidelines ongoing burden associated with these facility maintains for such individuals. given regarding testing frequency, the reporting activities will, if necessary, be
86 https://www.bls.gov/oes/current/oes_nat.htm. (15-1231).
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submitted under OMB Control Number would perform this task at an hourly our assumptions, we estimate that the 0938–New. wage of $19.24 per hour as published by total cost to document the testing results For the purpose of this analysis, we the BLS in 2019.87 The wage rate would for staff and LTC residents over the estimate that it would take 2 minutes to be doubled to $38.48 to include estimated course of the PHE for COVID– document the initial test and that a overhead and fringe benefits. Based on 19 would be $48,158,193. See Table 4. healthcare support worker (31–9099) TABLE 4—TOTAL COST TO DOCUMENT THE TESTING RESULTS FOR STAFF AND LTC RESIDENTS OVER THE ESTIMATED COURSE OF THE PHE FOR COVID–19
Wage for Time to document Staff Resident Testing Testing health staff Total frequency duration worker
Staff ...... 2 minutes ...... 88 1,899,000 ...... 14 days 30 weeks * $38.48 $36,344,360 Resident ...... 2 minutes ...... 1,315,757 30 days 7 months $38.48 11,813,833 ...... 48,158,193 * The wage rate includes overhead and fringe benefits.
I. Quality Reporting: Updates to the require hospitals to complete any forms 5. Revised Performance Period for the Extraordinary Circumstances or submit any additional information to FY 2022 SNF VBP Program as a Result Exceptions (ECE) Granted for Four receive an ECE, and therefore, the of the ECE Granted for the PHE for Value-Based Purchasing Programs in program does not anticipate any change COVID–19 Response to the PHE for COVID–19, and in burden associated with this IFC. As described in section II.D.5. of this Update to the Performance Period for 3. Update to the HRRP ECE Granted in IFC, we granted an ECE for the PHE for the FY 2022 SNF VBP Program COVID–19 to exclude qualifying claims Response to the PHE for COVID–19 1. Updates to ESRD QIP: Utilization of from the claims-based SNF 30-Day All- Fourth Quarter CY 2019 ESRD QIP Data In section II.D.3. of this IFC, we Cause Readmission Measure (SNFRM; and the Removal of the Option for excepted the use of claims data from the NQF #2510) calculation for the Facilities To Opt-Out of the first and second quarters of CY 2020 following periods: January 1, 2020 Extraordinary Circumstances Exception from the HRRP because of our concern through March 31, 2020 (Q1 2020); and (ECE) Granted With Respect to First and that the data collected during this April 1, 2020 through June 30, 2020 (Q2 2020). Second Quarter (CY) 2020 ESRD QIP period may be greatly impacted by the Data Because we are excluding qualifying response to COVID–19, and therefore, claims from January 1, 2020 through In section II.D.1. of this IFC, we are may not be reflective of a hospital’s June 30, 2020, we are adopting a revised updating our regulations at performance during this time due to performance period for the FY 2022 § 413.178(d)(7) to state that a facility has concerns with national comparability of SNF VBP Program Year in section II.D.5. opted out of the ECE for COVID–19 with the data. This update does not require of this IFC. The revised performance respect to the reporting of fourth quarter hospitals to complete any forms or period for the FY 2022 SNF VBP 2019 NHSN data if the facility actually submit any additional information, and program will be from: April 1, 2019 reported the data by the March 31, 2020 therefore, the program does not through December 31, 2019, and July 1, deadline but did not notify CMS that it anticipate any change in burden 2020 through September 30, 2020. would do so. Additionally, we are associated with this IFC. Changing the performance period for removing the ability of facilities to opt- a SNF VBP Program Year does not out of the ECE we granted with respect 4. Update to the Hospital VBP Program require SNFs to complete any forms or to Q1 and Q2 2020 ESRD QIP data. ECE Granted in Response to the PHE for submit any additional information. These updates do does not require COVID–19 Accordingly, the SNF VBP Program facilities to complete any forms or does not anticipate any change in In section II.D.4. of this IFC, we are submit any additional information to burden associated with this IFC. receive an ECE, and therefore, the updating the ECE granted for the program does not anticipate any change Hospital VBP Program to not use Q1 and J. Submission of Adjusted Premium in burden associated with this IFC. Q2 2020 data that was made optional Amounts for PPACA Risk Adjustment under the Guidance memo for scoring in Sections 153.610 and 153.710 provide 2. Updates to the Application of the the Hospital VBP Program for the FY that issuers of a risk adjustment covered HAC Reduction Program ECE Policy in 2022 payment year. This change to the plan must provide HHS with access to Response to the PHE for COVID–19 ECE policy does not require hospitals to risk adjustment data through a In section II.D.2. of this IFC, we are complete any forms or submit any dedicated distributed data environment, updating the ECE granted for the HAC additional information, and therefore, in a manner and timeframe specified by Reduction Program to not use Q1 and the program does not anticipate any HHS. In section II.G.2. of this IFC, we Q2 2020 data that were made optional change in burden associated with this clarify that, for purposes of 2020 benefit under the Guidance memo for scoring in IFC. year risk adjustment data submissions, the HAC Reduction Program for scoring issuers that choose to provide temporary calculations in future program years premium credits must submit the (that is, the FY 2022 and FY 2023 adjusted (that is, lower) plan premiums program years). This policy does not for those months, instead of the
87 https://www.bls.gov/oes/current/oes_nat.htm. 88 https://www.kff.org/report-section/covid-19- (31–9099). and-workers-at-risk-examining-the-long-term-care- workforce-tables/.
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unadjusted plan premiums. We also K. Medical Loss Ratio Premium digital E/M service (e-visit)), and 99441, clarify that CMS will require issuers to Reporting Requirements 99442, and 99443 (codes for telephone submit adjusted plan premiums to their In section II.G.3. of this IFC, we are E/M services); and (2) HCPCS codes: EDGE servers for all enrollees whom the clarifying that issuers that elect to G2010 (code for remote evaluation of issuer has actually provided premium provide temporary premium credits to patient video/images) and G2012 (code credits as a reduction to 2020 benefit consumers in 2020 must account for for virtual check-in). We do not believe year premiums, even if these premium these credits as reductions to premium this proposal will impact the number of credits were not provided in a manner for the applicable months during 2020 beneficiaries selected for sampling, consistent with the August 4, 2020 when reporting earned premium for the which will be used to complete quality memo. This IFC does not change any applicable MLR reporting year.90 We do reporting via the CMS Web Interface or other aspect of the 2020 benefit year not anticipate that this clarification will administer the CAHPS for MIPS survey; data submission requirements for the require changes to the MLR Annual however, this proposal could impact the HHS-operated risk adjustment program. Reporting Form or change the associated number of beneficiaries eligible to be burden for issuers. As noted above, we sampled. Therefore, we do not We do not believe that issuers who expect issuers’ premium reporting anticipate any change in burden or elect to provide these temporary systems will already be configured to impact on clinicians. premium credits will incur additional enable issuers to track the premiums In addition, we are: (1) Expanding the operational burden associated with actually charged to enrollees for the improvement activity IA_ERP_3 titled EDGE server data submissions as a applicable benefit year, enabling issuers ‘‘COVID–19 Clinical Trial’’ to also allow result of these requirements because we that offer temporary premium credits to credit for clinicians who participate in expect issuers’ premium reporting accurately report the adjusted (that is, the care of patients diagnosed with systems will already be configured to lower) amounts actually billed to their COVID–19 and simultaneously submit enable issuers to upload the billable enrollees on their respective MLR relevant clinical data to a clinical data premiums actually charged to enrollees Annual Reporting Forms. The burden registry for ongoing or future COVID–19 for the applicable benefit year to the related to this information collection is research; (2) updating the title; and (3) EDGE server. Additionally, the current currently approved under OMB control extending it through the CY 2021 EDGE server operational guidance for number 0938–1164 (Medical Loss Ratio performance period. Because MIPS the risk adjustment program allows Annual Reports, MLR Notices, and eligible clinicians are still required to issuers to submit billable premium Recordkeeping Requirements (CMS– submit the same number of activities 10418)). The information collection changes so there will be no changes to and the per response time for each request expires on October 31, 2020. the data submission rules.89 Therefore, activity is uniform, we do not expect the burden related to this information L. Merit-Based Incentive Payment this proposal to affect our currently collection is currently approved under System (MIPS) Updates approved information collection burden OMB control number 0938–1155 In section II.I. of this IFC, for the 2020 estimates in terms of neither the number (Standards Related to Reinsurance, Risk performance year, we are proposing to of estimated respondents nor the burden Corridors, Risk Adjustment, and include in the MIPS assignment per response. Payment Appeals). The information methodology for the CMS Web Interface M. Summary of Burden in This IFC collection request expires on February and CAHPS for MIPS survey the 23, 2021. following additions due to the PHE for Table 5 shows the burden and COVID–19: (1) CPT codes: 99421, associated costs for sections IV.A. 99422, and 99423 (codes for online through F. in this IFC.
TABLE 5—BURDEN AND ASSOCIATED COSTS FOR THE PROVISIONS INCLUDED IN THIS IFC
Burden hours increase/ ¥ Information collection requests decrease Cost (+/ )* (+/¥)*
A. Laboratory Costs to Develop Mechanism to Track Results (one time cost) ...... +539,168 +109,537,371 B. Laboratory Costs to Collect Results for Reporting (per day cost *) ...... +231,072 +12,172,873 C. Laboratory Costs to Report Results (per day cost *) ...... +231,072 +8,891,651 D. Laboratory Costs to Update Policies/Procedures (one time cost) ...... +385,120 +42,648,189 E. AO/ES Costs to Update Standards (one time cost) ...... +270 +29,900 F. (a) AO/ES Costs to Update Policies/Procedures (one time cost) ...... +135 +15,971 F. (b) AO/ES Costs to Report Laboratories to CMS for not Reporting Results ...... +36 +86,980
Total ...... +1,386,873 +173,382,935 * Note that these are per day costs. For annual costs, see Table 9.
V. Response to Comments Federal Register documents, we are not comments we receive by the date and able to acknowledge or respond to them time specified in the DATES section of Because of the large number of public individually. We will consider all this preamble, and, when we proceed comments we normally receive on
89 See EDGE Server Business Rules (ESBR) v16.0 90 Because the MLR and rebate calculations are reporting years. See section 2718(b)(1)(B)(ii) of the Section 5.8 Premium Amounts, at https:// based on 3 years of data, reporting earned premium PHSA. Also see 45 CFR 158.220(b). www.regtap.info/uploads/library/DDC_ESBR_ for the 2020 benefit year will impact the MLR and V16.0_052920_5CR_052920.pdf. rebate calculations for the 2020 through 2022
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with a subsequent document, we will Controlling Regulatory Costs (January to comply with the new federal respond to the comments in the 30, 2017). regulatory changes. We have provided preamble to that document. Executive Orders 12866 and 13563 an assessment of the impact of direct agencies to assess all costs and estimated costs of these changes in VI. Regulatory Impact Analysis benefits of available regulatory Tables 6 and 7. A. Statement of Need alternatives and, if regulation is Executive Order 13771, titled necessary, to select regulatory Reducing Regulation and Controlling Throughout this IFC, we discuss approaches that maximize net benefits Regulatory Costs, was issued on January several changes to payment and (including potential economic, 30, 2017 and requires that the costs coverage policies intended to allow environmental, public health and safety associated with significant new healthcare providers and health effects, distributive impacts, and regulations ‘‘shall, to the extent insurance issuers maximum flexibility equity). Section 3(f) of Executive Order permitted by law, be offset by the to minimize the spread of COVID–19 12866 defines a ‘‘significant regulatory elimination of existing costs associated among Medicare and Medicaid action’’ as an action that is likely to with at least two prior regulations.’’ beneficiaries, consumers of health result in a rule: (1) (Having an annual This IFC’s designation under Executive insurance coverage in the individual effect on the economy of $100 million Order 13771, titled Reducing Regulation and small group insurance markets, or more in any 1 year, or adversely and and Controlling Regulatory Costs (82 FR healthcare personnel, and the materially affecting a sector of the 9339), which was issued on January 30, community at large, and increase economy, productivity, competition, 2017, will be informed by public capacity to address the needs of their jobs, the environment, public health or comments received. patients. The flexibilities and changes safety, or state, local or tribal The RFA requires agencies to analyze contained within this IFC are responsive governments or communities (also options for regulatory relief of small to this developing pandemic emergency referred to as ‘‘economically entities, if a rule has a significant impact and to recent legislation that gives us significant’’); (2) creating a serious on a substantial number of small additional authority. Given the inconsistency or otherwise interfering entities. For purposes of the RFA, we potentially catastrophic impact to with an action taken or planned by estimate that the great majority of public health, it is difficult to estimate another agency; (3) materially altering laboratories are small entities, either by the economic impact of the spread of the budgetary impacts of entitlement being nonprofit organizations or by COVID–19 under current payment rules grants, user fees, or loan programs or the meeting the Small Business compared to the rules issued in this IFC. rights and obligations of recipients Administration definition of a small We believe that the needs of Medicare thereof; or (4) raising novel legal or business (having revenues of less than $8.0 million to $41.5 million in any 1 and Medicaid beneficiaries and policy issues arising out of legal year). For purposes of the RFA, consumers of health insurance coverage mandates, the President’s priorities, or approximately 75 percent of laboratories in the individual and small group the principles set forth in the Executive performing SARS–CoV–2 testing qualify insurance markets suffering from Order. For CLIA purposes, no regulatory as small entities. For purposes of this COVID–19 will likely test the capacity alternatives were considered as the IFC, we expect that approximately 30 of the healthcare system over the CARES Act requires all laboratories to percent (n=77,024) of the total CLIA coming months. Our policies reports SARS–CoV–2 test results. Only CLIA regulations requiring laboratories certified laboratories (n=256,747) could implemented in this IFC will provide to report SARS–CoV–2 test results were potentially be performing SARS–CoV–2 flexibilities, during the PHE for COVID– added/revised. tests. Further, based on data from the 19, to physicians and other A regulatory impact analysis (RIA) CLIA website, we are estimating that 75 practitioners, and clinical laboratories. must be prepared for major rules with percent of the laboratories have a CoW Additionally, the policies and economically significant effects ($100 (n=57,768) and 25 percent have a regulatory updates implemented in this million or more in any 1 year). As Certificate of PPM, CoC, CoA, or CoR IFC will increase the affordability and described in section IV. of this IFC (n=19,256). Each individual EUA test support continuity of health insurance (Collection of Information system authorized by the FDA specifies coverage for consumers in the Requirements) and this section, this IFC the settings in which the tests are individual and small group (or merged) would be economically significant authorized to be used during the PHE market during the PHE for COVID–19. within the meaning of section 3(f)(1) of for COVID–19. Generally, COW and B. Overall Impact the Executive Order. We are adding PPM laboratories include, but are not §§ 493.41 and 493.1100(a) to require limited to, the following types of We have examined the potential that, during the PHE for COVID–19, as facilities: Physician office laboratories; impacts of this rule as required by defined in § 400.200, each laboratory pharmacies; skilled nursing/nursing Executive Order 12866 on Regulatory that performs a test that is intended to facilities; and other types of point-of- Planning and Review (September 30, detect SARS–CoV–2 or to diagnose a care facilities. Generally, we would 1993), Executive Order 13563 on possible case of COVID–19 must report consider these types of laboratories to be Improving Regulation and Regulatory SARS–CoV–2 test results in such form small entities. Individuals and states are Review (January 18, 2011), the and manner, and at such timing and not included in the definition of a small Regulatory Flexibility Act (RFA) frequency, as the Secretary may entity. All laboratories performing (September 19, 1980, Pub. L. 96 354), prescribe. These anticipated costs SARS–CoV–2 testing are affected by this section 1102(b) of the Social Security would result from laboratories needing IFC, and the impact is economically Act, section 202 of the Unfunded to develop a mechanism to collect and significant. Therefore, the Secretary has Mandates Reform Act of 1995 (March report SARS–CoV–2 test results, update determined that this IFC will have a 22, 1995; Pub. L. 104–4), Executive policies and procedures, update significant economic impact on a Order 13132 on Federalism (August 4, software, and train personnel. In substantial number of small entities. 1999), the Congressional Review Act (5 addition, AOs and Exempt States (ESs) In addition, section 1102(b) of the Act U.S.C. 804(2)), and Executive Order will also need to update their laboratory requires us to prepare a regulatory 13771 on Reducing Regulation and standards and policies and procedures impact analysis if a rule may have a
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significant impact on the operations of requirements and the state licensure additional financial burden for LTC a substantial number of small rural program has been approved by us. providers if they remain compliant in hospitals. This analysis must conform to These two states, New York and reporting. Following the May 8th the provisions of section 604 of the Washington, would need to update their effective date of this reporting RFA. For purposes of section 1102(b) of standards, policies and procedures to requirement, we began assessing the the Act, we define a small rural hospital maintain their exempt status to require compliance for all 15,674 (data from as a hospital that is located outside of reporting to CMS those accredited/ Quality, Certification and Oversight a metropolitan statistical area and has exempt laboratories that have not Reports (QCOR) as of August 11, 2020) fewer than 100 beds. There are reported SARS–CoV–2 test results as Medicare and Medicaid certified approximately 905 small rural hospitals required. In addition, these two states nursing homes each week and have in the U.S. Of the 905 small rural would need to develop a CMP structure found compliance has consistently hospitals, approximately 500 are to impose CMPs that is equivalent to increased week after week. Based on subsection (d) hospitals paid under IPPS CMS and is based on their updated and are subject to the HAC Reduction standards. In order to determine data provided to CMS by the CDC, Program and HRRP. In section II.D. of compliance with the reporting compliance with this requirement has IFC, we are updating the ECE policy for requirements, the State Agencies would been greater than 98 percent since the the two programs to allow the exclusion be required to perform additional reporting week ending June 28, 2020. of data submitted for quarters impacted surveys on 5 percent of CoW and 5 Although there has been unprecedented by the PHE for COVID–19. We estimate percent of PPM laboratories. As compliance with the requirement to that the impact of the exclusion of data previously stated, these two type of report, CMS has issued 2,507 citations on scoring for small rural hospitals for laboratories are not routinely surveyed. for noncompliance as of August 10, the programs will be dependent upon The total number of CoW laboratories as 2020, with corresponding CMPs hospitals’ individual performance and of March 2020 is 193,474. Five percent imposed. Financial impact will occur experience, but that the exclusion of of 193,474 is 9,674 so for the duration for facilities who are not compliant with data will make small hospitals less of the IFC (3 years), a total of 3,225 CoW the new reporting requirement. We do likely to receive measure scores or meet surveys would need to be performed not expect these requirements to have a minimum eligible discharge annually across all State Agencies. The substantial economic impact or pose a requirements for participation in the total number of PPM laboratories as of financial burden to nursing homes HAC Reduction Program and HRRP. All March 2020 is 30,120. Five percent of beyond that which has already been small rural hospitals, that is, both 30,120 is 1,506 so for the 3 years that established by CMS’s existing subsection (d) and critical access this IFC would be in place, a total of 502 enforcement regulations. This rule does hospitals, often provide very limited PPM surveys would need to be not add new requirements, but clarifies laboratory services or may refer all their performed annually across all State testing to larger facilities. We are unable our process to impose penalties for a Agencies. The combined number of failure to report for which compliance is to estimate the number of laboratories these surveys that will need to be that support small rural hospitals, but assessed on a weekly basis, which is performed annually over the 3 years of different from how all other LTC do expect that the rule will have a the timeframe of the IFC is 3,727 across requirements are reviewed. CMS’ significant impact on small rural all State Agencies. Over the 3 years that enforcement authority remains hospitals. Therefore, the Secretary has this IFC is in place, one-third of the total determined that this rule will have a number CoW and PPM laboratories unchanged under this IFC. Instead, it significant impact on the operations of would be surveyed each year. This clarifies the specific CMP penalty range a substantial number of small rural would ensure that a total of 5 percent of for noncompliance with the new hospitals. each of these types of laboratories are COVID–19 related reporting Section 202 of the Unfunded surveyed during the duration of the PHE requirements at § 483.80(g)(1) and (2). Mandates Reform Act of 1995 (UMRA) for COVID–19 to determine if SARS– Furthermore, the penalty amounts are also requires that agencies assess CoV–2 requirements are met. Currently, consistent with the lower level penalty anticipated costs and benefits before there are no resources available to the range available at § 488.438(a)(1)(ii) in issuing any proposed rule, or any final State Agencies to perform these order to encourage compliance and to rule preceded by a proposed rule whose additional surveys. Therefore, this IFC discourage similar conduct in the future mandates require spending in any 1 year would have a substantial direct effect on without causing undue hardship that of $100 million in 1995 dollars, updated state or local governments. This IFC could impair a facility’s ability to annually for inflation. In 2020, that would also have a direct effect on threshold is approximately $156 minimize COVID–19 infections among preempting state laboratory million. This IFC was is not preceded by its residents and staff. In addition, the requirements as they must change their a general notice of proposed penalty is not aggregated but is current laboratory standards to remain rulemaking, and thus the requirements increased only if future compliance equal to or more stringent than Federal of UMRA do not apply. assessments reveal repeated violations. Executive Order 13132 establishes laws when finalized. In the event that a facility is unable to certain requirements that an agency C. Detailed Economic Analysis of the meet reporting requirements and/or must meet when it promulgates a rule Provisions of the IFC experiences financial hardship, a that imposes substantial direct facility may utilize the Independent 1. Revised Enforcement Requirements requirement costs on state and local Informal Dispute Resolution process for LTC Facilities governments, preempts state law, or under § 488.431 to dispute the findings otherwise has federalism implications. Section II.A. of this IFC which and may submit a financial hardship Two states have exempt status, which implements a policy for specifying the request to CMS. means we have determined that the CMP amounts tailored to state has enacted laws relating to the noncompliance related to § 483.80(g)(1) laboratory requirements that are equal to and (2) (electronic reporting COVID–19 or more stringent than CLIA related data) will not result in any
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2. CoP Requirements for Hospitals and 507.91 Costs incurred by facilities have residents in a COVID–19 care unit; CAHs, and Requirements for LTC potential to vary drastically depending assigning dedicated staff to the Facilities on the extent of outbreaks in their aforementioned care unit; and respective communities, whether the a. CoP Requirements for Hospitals and additional cleaning procedures. facility has point-of-care testing, and the CAHs To Report COVID–19 Data as Although we do not have data to size of each facility; however, for some Specified by the Secretary During the support exactly how many facilities are of these facilities the cost of testing may PHE for COVID–19 fully prepared for intervention at this be less than the costs associated with scale, we assume that most facilities Section II.B. of this IFC revises the lost productivity and revenue due to have made basic preparations in line unmitigated outbreaks. We solicit infection prevention and control with current best practices. comments on our cost estimates, as well requirements for hospitals and CAHs to Acknowledging this uncertainty, we are more effectively respond to the specific as any additional costs associated with acquiring reagents, test kits, or anything assuming the average facility requires challenges posed by the COVID–19 intervention costing between 5 and 40 pandemic. Specifically, we are adding else we may not have considered. Best practices for catching and hours of the hourly wage of a registered provisions to require facilities to nurse for each additional round of electronically report information related eliminating these outbreaks, as well as availability of the tools necessary to do testing, doubled to account for the cost to confirmed or suspected COVID–19 of overhead and fringe benefits. For cases in a standardized format specified so, is a quickly changing landscape. As facilities that are less prepared, a by the Secretary. Many hospitals are of late July, over 600 point-of-care antigen testing devices had already been different mix of staffing could provide already reporting data in a standardized shipped to LTC facilities nationwide, format voluntarily. As detailed in additional support for a similar cost. with plans to provide every facility with section IV.G. of this IFC, we currently In Tables 6 and 7, we provide their own instrument(s) and tests within estimate the cost of these reporting sensitivity analyses showing the 14 weeks.92 This method of testing requirements to total $212,232,900. This potential costs of universal testing in effectively reduces the cost-per-test from estimate is likely an overestimate of the LTC facilities given these unknown approximately $100 to only $20. These costs associated with reporting because efforts to provide every facility with variables described above. All costs it assumes that all hospitals will report these devices continue, but for the below are assumed to be in addition to manually. Efforts are underway to purposes of our estimates below, we the current baseline testing activities; automate hospital and CAH reporting assume a cost of $60 per test; this facilities that are already performing that have the potential to significantly accounts for the potential cost of tests that would be in compliance with decrease reporting burden and improve replacing the antigen testing device, as these testing requirements, or different reliability. We anticipate that the need well as the possibility that some parameters to trigger the testing for reporting will be temporary in direct facilities will choose to verify negative requirements, would impact the number relationship to the duration of the PHE. results with lab testing. The cost of of facilities affected as detailed below. Existing guidance on reporting, which these testing activities will ultimately In the context of the Table 6, ‘‘rounds may be revised in the future, can be depend on the extent of future of testing’’ refers to the number of times found at https://www.hhs.gov/sites/ outbreaks, and how the best practices, each facility tests their entire staff and default/files/covid-19-faqs-hospitals- and thus our parameters for universal resident population on an annual basis. hospital-laboratory-acute-care-facility- testing, evolve. We recognize that In light of uncertainty, this can be data-reporting.pdf, and these guidance testing alone is not enough to control, documents will be in CMS’ 13891 interpreted as the number of times the treat, and eliminate outbreaks of parameters set forth by the Secretary are portal. Data reported to the Secretary is COVID–19. Providing safe care is the used by Federal agencies and states, to triggered; additional tests that may be inherent duty of all long term care necessary to facilitate cohorting and provide data for the unified hospital facilities. Implementing highly effective identify new transmission events; or picture, as well as guidance on the infection prevention and control additional tests to verify negative distribution of resources. procedures, such as proper hand results. We note that if baseline testing b. Requirement for Long-Term Care washing techniques and techniques for donning and removing PPE, are is not accounted for, benefits of this Facilities To Test Facility Staff and provision would be overstated in Residents for COVID–19 expected to be part of everyday facility procedures and do not impose an addition to (this category of) costs. Section II.J. of this IFC revises the additional burden upon facilities. CDC infection control requirements for LTC provides, and continually updates, their facilities at § 483.80 to require facilities infection control guidance for LTC to test their staff and residents for facilities.93 This guidance recommends, COVID–19 based on parameters set forth among other things, expanded viral by the Secretary. Based on data from testing of all residents if there is an CDC and states where similar policies outbreak in a facility; cohorting have already been implemented, we anticipate that this will result in 91 Bigelow BF, Tang O, Barshick B, et al. Outcomes of Universal COVID–19 Testing widespread testing and significant Following Detection of Incident Cases in 11 Long- resource use, but catch many cases that term Care Facilities. JAMA Intern Med. Published 94 For these estimates we assume the number of might otherwise go undetected. For online July 14, 2020. doi:10.1001/ staff and residents are evenly distributed across example, implementing universal jamainternmed.2020.3738. facilities. This $10 million estimate is equal to: testing in 11 LTC facilities in Maryland 92 https://www.cms.gov/files/document/covid- (approximately 3.2 million staff and residents * 5 faqs-snf-testing.pdf. percent of facilities * $60 per test * 1 round of increased the total number of detected 93 https://www.cdc.gov/coronavirus/2019-ncov/ testing) + (($37.24 cost for RN * 2 for fringe benefits cases in those facilities from 153 to hcp/long-term-care.html. and overhead) * 5 hours * 1 round of testing).
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TABLE 6—SENSITIVITY ANALYSIS OF POTENTIAL COSTS OF LTC TESTING; LOW COSTS OF INTERVENTION [In millions]
Facilities affected Rounds of testing 5% 10% 25% 50% 75% 100% 775 1,550 3,874 7,748 11,621 15,495
1 ...... 94 $10 $20 $50 $99 $149 $198 2 ...... 20 40 99 198 297 396 3 ...... 30 59 149 297 446 594 4 ...... 40 79 198 396 594 792 5 ...... 50 99 248 495 743 990 6 ...... 59 119 297 594 891 1,188 7 ...... 69 139 347 693 1,040 1,386 8 ...... 79 158 396 792 1,188 1,584 9 ...... 89 178 446 891 1,337 1,783 10 ...... 99 198 495 990 1,485 1,981 11 ...... 109 218 545 1,089 1,634 2,179 12 ...... 119 238 594 1,188 1,783 2,377 13 ...... 129 257 644 1,287 1,931 2,575 14 ...... 139 277 693 1,386 2,080 2,773 15 ...... 149 297 743 1,485 2,228 2,971 16 ...... 158 317 792 1,584 2,377 3,169 17 ...... 168 337 842 1,683 2,525 3,367 18 ...... 178 357 891 1,783 2,674 3,565 19 ...... 188 376 941 1,882 2,822 3,763 20 ...... 198 396 990 1,981 2,971 3,961
TABLE 7—SENSITIVITY ANALYSIS OF POTENTIAL COSTS OF LTC TESTING; HIGH COSTS OF INTERVENTION [In millions]
Facilities affected Rounds of testing 5% 10% 25% 50% 75% 100% 775 1,550 3,874 7,748 11,621 15,495
1 ...... * $12 $24 $60 $119 $179 $238 2 ...... 24 48 119 238 358 477 3 ...... 36 72 179 358 537 715 4 ...... 48 95 238 477 715 954 5 ...... 60 119 298 596 894 1,192 6 ...... 72 143 358 715 1,073 1,431 7 ...... 83 167 417 835 1,252 1,669 8 ...... 95 191 477 954 1,431 1,908 9 ...... 107 215 537 1,073 1,610 2,146 10 ...... 119 238 596 1,192 1,788 2,384 11 ...... 131 262 656 1,311 1,967 2,623 12 ...... 143 286 715 1,431 2,146 2,861 13 ...... 155 310 775 1,550 2,325 3,100 14 ...... 167 334 835 1,669 2,504 3,338 15 ...... 179 358 894 1,788 2,683 3,577 16 ...... 191 382 954 1,908 2,861 3,815 17 ...... 203 405 1,013 2,027 3,040 4,054 18 ...... 215 429 1,073 2,146 3,219 4,292 19 ...... 227 453 1,133 2,265 3,398 4,531 20 ...... 238 477 1,192 2,385 3,577 4,769 * For these estimates we assume the number of staff and residents are evenly distributed across facilities. This $12 million estimate is equal to: (Approximately 3.2 million staff and residents * 5 percent of facilities * $60 per test * 1 round of testing) + (($37.24 cost for RN * 2 for fringe benefits and overhead) * 40 hours * 1 round of testing). This upper-bound scenario accounts for the possibility that each round of testing and intervention costs approximately $2,607 more per facility than the lower-bound scenario.
While we currently have no reason to provision are detailed in section IV.G.2. Families First Coronavirus Response believe testing will be required of this IFC. We note that almost half of Act requires state Medicaid and CHIP anywhere near the extent demonstrated the potential costs detailed above would programs to cover any COVID–19- at the high end of this range, we are be attributable to the testing of related testing and diagnostic services; presenting our cost estimates in this residents, the vast majority of which are cost-sharing is not permitted for format to underscore the unpredictable enrolled in Medicare, Medicaid, or both, COVID–19 testing and testing-related nature of this pandemic. Other potential but Medicaid is the primary payer for services. For residents in a Medicare administrative costs associated with this approximately 62% of residents. The covered Part A skilled nursing facility
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stay, testing is covered by the global PPS that people are willing to pay for life- typically developed using wage data for per diem rate that the long term care prolonging and life-improving health working-age populations, potentially facility receives. In addition, HHS care interventions of any kind (see overstated in contexts such as this for a recently announced approximately $5 sections 3.2 and 3.3 of the HHS novel coronavirus that billion in Provider Relief Fund Guidelines for a detailed explanation). disproportionately affects the elderly; distributions under the CARES Act for The QALY and VSLY amounts used in overstatement of the VSL would in turn nursing homes. However, we would like any estimate of overall benefits is not lead to underestimation of the fatal to note that LTC facilities are meant to be precise, but instead are illnesses that would need to be avoided responsible for the costs of testing in rough statistical measures that allow an in order for the regulatory provision to order to comply with the infection overall estimate of benefits expressed in break even. control requirements of this rule, dollars.97 regardless of whether specific Research surrounding changes in Consistent with the HHS Guidelines, reimbursement is available from health-related quality of life due to the we assume that the average individual Medicare, Medicaid, the Provider Relief novel coronavirus, as well as the overall in these underlying VSL studies is Fund, or any other sources. Of this case fatality rate, is still ongoing. Due to approximately 40 years of age, allowing amount, approximately $2.5 billion these substantial uncertainties, as well us to calculate a VSLY of approximately provides upfront funding to support as the unknown extent of future $469,000 to $818,000 at 3 and 7 percent increased testing, staffing, and Personal outbreaks, we have presented a discount rates respectively. Table 8, Protective Equipment (PPE), according threshold analysis of life-saving benefits when viewed alongside Table 7, to facilities’ needs.95 below. The following estimates assume demonstrates the number of years of life There is also potential for substantial a the Value of a Statistical Life (VSL) of extension needed to break-even with the benefits by catching and eliminating approximately $10.1 million in 2020 as corresponding costs of testing and COVID–19 outbreaks early in these described in the aforementioned HHS intervention. We reiterate, as discussed facilities. HHS’ ‘‘Guidelines for Guidelines, inflated to 2019 dollars in our cost estimates, that the break- Regulatory Impact Analysis’’ explain in using the Implicit Price Deflators for even points below are subject to any some detail the concept of Quality Gross Domestic Product. We note, as Adjusted Life Years (QALYs).96 QALYs, detailed in the HHS Guidelines, that flaws in our assumptions of costs. Due when multiplied by a monetary estimate there is substantial uncertainty to this uncertainty, these estimates are such as the Value of a Statistical Life regarding how VSL varies with age,98 based on our high estimate of the costs Year (VSLY), are estimates of the value making estimates of the VSL, which are of intervention.
TABLE 8—THRESHOLD ANALYSIS OF AVOIDED FATAL ILLNESSES, DUE TO LTC TESTING AND ASSOCIATED PROTECTIVE ACTIONS, REQUIRED FOR THE REGULATORY PROVISION TO BREAK EVEN [In life years]
Facilities affected Rounds of testing 5% 10% 25% 50% 75% 100% 775 1,550 3,874 7,748 11,621 15,495
1 ...... 15–26 29–51 73–128 145–254 219–382 291–507 2 ...... 29–51 59–102 145–254 291–507 438–763 583–1017 3 ...... 44–77 88–153 219–382 438–763 657–1145 874–1524 4 ...... 59–102 116–203 291–507 583–1017 874–1524 1166–2034 5 ...... 73–128 145–254 364–635 729–1271 1093–1906 1457–2541 6 ...... 88–153 175–305 438–763 874–1524 1312–2287 1749–3051 7 ...... 101–177 204–356 510–889 1021–1780 1531–2669 2040–3558 8 ...... 116–203 234–407 583–1017 1166–2034 1749–3051 2333–4068 9 ...... 131–228 263–458 657–1145 1312–2287 1968–3432 2624–4575 10 ...... 145–254 291–507 729–1271 1457–2541 2186–3812 2915–5082 11 ...... 160–279 320–559 802–1398 1603–2795 2405–4193 3207–5592 12 ...... 175–305 350–610 874–1524 1749–3051 2624–4575 3498–6099 13 ...... 189–330 379–661 947–1652 1895–3304 2842–4957 3790–6609 14 ...... 204–356 408–712 1021–1780 2040–3558 3061–5338 4081–7116 15 ...... 219–382 438–763 1093–1906 2186–3812 3280–5720 4373–7626 16 ...... 234–407 467–814 1166–2034 2333–4068 3498–6099 4664–8133 17 ...... 248–433 495–863 1238–2160 2478–4321 3717–6481 4956–8643 18 ...... 263–458 524–915 1312–2287 2624–4575 3935–6862 5247–9150 19 ...... 278–484 554–966 1385–2415 2769–4829 4154–7244 5539–9659 20 ...... 291–507 583–1017 1457–2541 2916–5084 4373–7626 5830–10167
95 https://www.hhs.gov/about/news/2020/08/07/ prohibited by Section 1182(e) of the Act. That 98 There is somewhat more clarity about hhs-announces-allocations-of-cares-act-provider- prohibition does not apply to the situation willingness-to-pay being positively correlated with relief-fund-for-nursing-homes.html. addressed in this IFC, where the purpose is not to length of life extension achieved by a rule or other 96 https://aspe.hhs.gov/pdf-report/guidelines- determine medical coverage for individual patients, policy intervention—an outcome that is related to regulatory-impact-analysis. but to measure overall success in life-saving efforts age, but only somewhat loosely. 97 We note that using such a measure to make to avert disease. coverage or reimbursement determinations is
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As described above, it is difficult to a. Laboratory Costs To Develop a testing. See sections IV.B. and IV.D. of predict how many lives might be saved Mechanism To Track SARS–CoV–2 Test this IFC. Results as a result of these testing requirements, c. Laboratory Costs To Report SARS– but the benefits of catching, treating, As discussed in section II.C. of this CoV–2 Test Results and eliminating COVID–19 transmission IFC, we are adding §§ 493.41 and As discussed in section II.C. of this and outbreaks among the over 3.2 493.1100(a) to require that, during the IFC, we are adding §§ 493.41 and million employees and residents of LTC PHE for COVID–19, as defined in 493.1100(a) to require that, during the facilities has potential to far exceed the § 400.200, each laboratory that performs PHE for COVID–19, as defined in costs. These benefits may be a test that is intended to detect SARS– § 400.200, each laboratory that performs CoV–2 or to diagnose a possible case of compounded by the possibility of LTC a test that is intended to detect SARS– COVID–19 must report SARS–CoV–2 staff unknowingly infecting their CoV–2 or to diagnose a possible case of test results in such form and manner, families and respective communities, COVID–19 must report SARS–CoV–2 and at such timing and frequency, as the giving these testing requirements the test results in such form and manner, Secretary may prescribe. We estimate potential for far-reaching benefits and at such timing and frequency, as the that approximately 30 percent beyond the walls of LTC facilities. Secretary may prescribe. We expect that (n=77,024) of the total CLIA-certified approximately 30 percent (n=77,024) of 3. Clinical Laboratories laboratories 100 could potentially be the total CLIA-certified laboratories performing SARS–CoV–2 testing. Each could potentially be performing SARS– As discussed in section II.C of this of these laboratories would incur a one- CoV–2 and need to report test results as IFC, these provisions could impact all of time cost for the time needed to develop required by the Secretary. Each of these the 256,747 CLIA-certified a mechanism to track and report SARS– 99 laboratories would incur a per day cost laboratories to some extent. However, CoV–2 test results to be in compliance that would range from $1,481,942 to for purposes of this IFC, we estimate with this new requirement. As $8,891,651. Reporting of test results that approximately 30 percent described in Table 10, we estimate the would be an ongoing burden for each (n=77,024) of the total CLIA-certified one-time costs for all laboratories to laboratory performing this type of laboratories could potentially be implement this requirement to be testing. (See to section IV.C. of this IFC.) performing SARS–CoV–2 testing. $78,240,979 to $109,537,371. (See Although complete data are not section IV.A. of this IFC.) d. Laboratory Costs To Update Policies available to calculate all estimated costs and Procedures b. Laboratory Costs To Collect Test and benefits that would result from the Results for Reporting SARS–CoV–2 Test We expect that the approximately changes in this IFC, we are providing an Results 77,024 laboratories performing SARS– analysis of the potential impact based CoV–2 testing would incur costs for the As discussed in section II.C. of this on available information and certain time needed to review the revised IFC, we are adding §§ 493.41 and assumptions. Assuring a rapid and reporting regulations and update their 493.1100(a) to require that, during the thorough public health response to the policies and procedures to be in PHE for COVID–19, as defined in COVID–19 pandemic relies on having compliance. The total one-time burden § 400.200, each laboratory that performs complete and comprehensive laboratory per laboratory to review and update a test that is intended to detect SARS– affected policies and procedures is testing data, including standardized test CoV–2 or to diagnose a possible case of $42,648,189. (See section IV.D. of this results, relevant demographic details, COVID–19 must report SARS–CoV–2 IFC.). and additional information that can test results in such form and manner, improve both the public health response and at such timing and frequency, as the e. Accreditation Organization (AO) and to SARS–CoV–2 and treatment of Secretary may prescribe. We estimate Exempt State (ES) Costs To Update COVID–19. These data can contribute to that approximately 30 percent Standards for Reporting SARS–CoV–2 understanding disease incidence and (n=77,024) of the total CLIA-certified Test Results trends: Initiating epidemiologic case laboratories could potentially be We would expect the seven approved investigations, assisting with contact performing SARS–CoV–2, and by this AOs and two ESs would have to review tracing, assessing availability and use of rule would need to collect those test their standards, provide updates and testing resources, and identifying results to report them in accordance submit the changes to CMS related to supply chain issues for reagents and with §§ 493.41 and 493.1100(a). We SARS–CoV–2 test reporting for approval other material. Laboratory testing data, estimate the total cost would range from (9 organizations/exempt states × 25 or in conjunction with case reports and $2,028,812 to $12,172,873 per day to 30 hours). We assume a one-time cost of other data, also provide vital guidance collect and report the SARS–CoV–2 test from $24,917 to $29,900 to identify the for mitigation and control activities. results. Collection of test results, as well applicable legal obligations and to Implementation of the requirements of as reporting would be an ongoing develop the updated standards needed this IFC will result in changes that are burden (including, for example, the to reflect the new requirements for anticipated to have both quantifiable daily requirement to report, testing, SARS–CoV–2 testing. (See section IV E. and non-quantifiable impacts on volume, and personnel) for each of this IFC.) laboratory performing this type of laboratories. In estimating the f. Accreditation Organization (AO) and quantifiable impacts, we include costs 100 Includes Certificate of Waiver (CoW), Exempt State (ES) Costs To Update to all laboratories that could result from Certificate of Provider-Performed Microscopy Policies and Procedures Related to the need to meet the new CLIA (PPM), Certificate of Compliance (CoC) and Reporting Laboratories Performing provisions. Certificate of Accreditation (CoA). Based on the CLIA web page (https://www.cms.gov/Regulations- SARS–CoV–2 Testing That Do Not and-Guidance/Legislation/CLIA/Downloads/cert_ Report Results as Required type.pdf), the total number of laboratories as of 99 We would expect the seven approved https://www.cms.gov/Regulations-and- March 2020 are as follows: CoW, n=193,474; PPM Guidance/Legislation/CLIA/Downloads/cert_ n=30,120; CoC n=17,432; CoA n=15,721; total AOs and two ESs would have to type.pdf. =256,747. develop policies and procedures related
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to identifying laboratories that do not imposed for an average of $72,237 per will be more challenging for POL and report SARS–CoV–2 test results in order laboratory; and in 2018, 24 CMPs were POC laboratories given that this to report these laboratories to CMS. We imposed for an average of $44,230 per requirement creates the need for are requiring the AOs/ESs to report this laboratory. The average total CMP systemic changes to the ability to report information no later than 10 days after imposed per fined laboratory over the 3- results. If a laboratory does not currently determining a laboratory is not reporting year period was $52,634. Based on our have this capability to report in the form results, as required under §§ 493.41 and CMP requirements specific to SARS– and manner specified by the Secretary, 493.1100(a). We assume a one-time cost CoV–2 at 493.1834(d)(2)(iii), we they would need to expeditiously would range from $9,967 to $14,950. In anticipate that would be a range of ensure that the laboratory was able to addition, the AOs and ESs would be $1,000 per violation and $500 for each submit the SARS–CoV–2 test results in required to report to CMS every 10 days additional day of noncompliance that such form and manner, and at such those laboratories that have not reported test results are not reported. For timing and frequency, as the Secretary test results as required. The annual total example, we are providing estimates for may prescribe. Personnel would need to number of times each AO and ES is a minimum period of 3 days and a be trained to implement the new CLIA required to report to CMS is 36.5 (365 maximum period of 30 days. We reporting requirements related to days/10 days). We estimate a cost of estimate that the total cost of CMPs reporting of test results as prescribed by $1,192 to 2,383 per 10 days which imposed across all laboratories the Secretary. Further, given that CoW translates to an annual total cost range collectively would range from laboratories are not required to meet any of $43,508 to $86,980 to identify the $8,122,000 to $62,945,500 (4,061 personnel requirements, including laboratories and submit the information laboratories × $2000 (3 days) or 4,061 laboratory director and testing to CMS. (See section IV.F. of this IFC.) laboratories × $15,500 (30 days)) for personnel, this could contribute a laboratories performing SARS–CoV–2 significant challenge for these g. Enforcement, Imposition of Civil testing. (see Table 9). laboratories. In some cases, laboratory Money Penalties (CMPs) directors and testing personnel are not h. Infrastructure CLIA/AO/ES surveyors typically medical professionals. CoW laboratories perform approximately 16,577 surveys Several issues related to infrastructure may not have individuals in place that annually.101 In addition, the new have been identified (that is, reporting can train laboratory personnel to requirements would also require 3,727 test results, personnel) that will have an perform this task and may need to COW and PPM laboratories to be increased burden on all laboratories. As outsource this training. surveyed annually for reporting stated above, for purposes of this IFC, While we do not have any data to be requirements. This is a total of 20,304 we expect that the approximately 30 able estimate the fiscal burden that it laboratories that would be required to be percent (n=77,024) of the total CLIA- would cost to update a laboratory’s surveyed annually and that may be certified laboratories could potentially current software to ensure that the impacted by the imposition of CMPs for be performing SARS–CoV–2 testing. laboratory is able to report test results as failing to report SARS–CoV–2 as Furthermore, based on data from the required by the Secretary, we can required. We estimate the fiscal impact CLIA website 102 we are estimating that estimate the time it would take each of imposing CMPs on the estimated 75 percent of the 77,024 laboratories laboratory to implement the 20,304 laboratories performing this have a CoW (n=57,768), and 25 percent requirement. We are soliciting public testing to be 20 percent of laboratories have a Certificate of PPM, CoC, CoA, or comments related to cost and time it performing SARS–CoV–2 testing. That CoR (n=19,256). Generally, the types of would take laboratories to update their is, 4,061 laboratories may have a CMP facilities that have a CoW include, but software to ensure reporting of SARS– imposed during the PHE for COVID–19 are not limited to: Physician office CoV–2 test results. It would take for not complying with the new CLIA laboratories (45%); pharmacies (5%); approximately 3 hours to implement or reporting requirements. While we skilled nursing/nursing facility (6%); update to the form and manner believe initially the number of and other types of point-of-care prescribed by the Secretary and laboratories having a CMP imposed facilities.103 The facilities with PPM approximately 1 hour to train would be significantly higher, we generally are physician office employees to be in compliance with this postulate that the number of laboratories laboratories (POL) or other types of new requirement. We estimate the that will require the imposition of a point-of-care (POC) facilities.104 We burden hours for updating and CMP for not reporting SARS–CoV–2 test would also estimate that 45 percent of implementing the form would be results will decrease during the PHE for the CoC, CoA, and CoR laboratories 231,072 (77,024 laboratories × 3 hours). COVID–19. We believe this decrease would be POLs. For these POL and POC We estimate a database administrator/ will be a result of laboratories laboratories (n=66,433; 57,768 (CoWs) + architect (15–1245) would be needed to implementing the new requirements 8,665 (other certificate types)), we implement or update the software to included in this IFC. believe there would be infrastructure report the test results at an hourly wage We have no data indicating how issues related to implementing the new of $46.21 per hour as published by the imposition of the alternative sanction of CLIA requirement that test results must BLS in 2019.105 The wage rate would be CMP would affect all laboratories. Prior be reported as required by the Secretary. doubled to $92.42 to include overhead to the changes included in this IFC, While reporting of SARS–CoV–2 test and fringe benefits. The total estimated CMPs were not imposed on CoW results affects all laboratories cost to implement this requirement per laboratories. In 2016, CMS imposed 30 performing this testing, we believe that laboratory would be $21,355,674 CMPs for an average of $35,436 per meeting the new reporting requirements (77,024 laboratories × 3 hours × $92.42). laboratory; in 2017, 25 CMPs were We estimate a healthcare support 102 https://www.cms.gov/Regulations-and- worker (31–9099) would train _ 101 As of March 2020, there were 17,432 Guidance/Legislation/CLIA/Downloads/cert employees to collect the additional Certificate of Compliance and 15,721 Certificate of type.pdf. required information at an hourly wage Accreditation laboratories. CLIA surveys are 103 https://www.cms.gov/Regulations-and- performed biennially, so each year approximately Guidance/Legislation/CLIA/Downloads/factype.pdf. of $19.24 per hour as published by the half of the laboratories would be surveyed (33,154 104 https://www.cms.gov/Regulations-and- × 0.50 = 16,577). Guidance/Legislation/CLIA/Downloads/factype.pdf. 105 https://www.bls.gov/oes/current/oes_nat.htm.
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BLS in 2019.106 We estimate that at least and fringe benefits. The total estimated performing this type of testing since one new or existing employee per cost would be $2,963,884 (77,024 laboratories would need to train laboratory (n=77,024) would need to be laboratories × 1 hour × $38.48) per day employees to perform this task as trained for the purpose of collecting this to collect the required information. employees left and needed to be information. The wage rate would be Reporting of test results would be an replaced. (See Table 9.) doubled to $38.48 to include overhead ongoing burden for each laboratory
TABLE 9—ESTIMATED COSTS, INCLUDING DAILY COSTS, TO LABORATORIES, ACCREDITATION ORGANIZATIONS (AO) AND EXEMPT STATES (ES) TO IMPLEMENT REPORTING REQUIREMENTS
Hours Range of cost estimate for Total number implementing new CLIA Regulatory change Affected group of affected Hourly cost Occupation requirements entities Low High Low estimate High estimate
Collect Laboratory All Laboratories 77,024 $52.68 29–2010 0.5 3 $405,762,400 $2,434,574,600 Results 1. Performing SARS–CoV–2 Testing. Reporting Costs 1 .. All Laboratories 77,024 38.48 31–9099 0.5 3 296,388,400 1,778,330,200 Performing SARS–CoV–2 Testing. AO/ES Reporting AO/ES ...... 9 66.20 15–1231 2 4 43,508 86,980 to CMS 2. Imposition of CMPs All Laboratories 4,061 n/a n/a n/a n/a 8,122,000 62,945,500 Performing SARS–CoV–2 Testing.
Total In- ...... 710,316,308 4,275,937,280 creased Cost. 1 Please note that ‘‘Collect Laboratory Results’’ and ‘‘Reporting Costs’’ per day estimates are $2,028,812 to $12,172,873, and $1,481,942 to $8,891,651, respectively. For purposes of the annual cost, we estimated 200 days/year for testing/reporting (365 days/year¥104 weekend days¥10 federal holidays¥approximately 50 days to account for laboratories who do not test 7 days/week.) 2 Reporting requirement of once every 10 days. Calculation factor is 36.5 (365 days per year/10 days). The total cost would range from $1,192 to $2,383 (9 × 2 or 4 hours × $66.20) per 10 days for an annual total cost of $43,508 to $86,980 ($1,192 or $2,383 × 36.5).
TABLE 10—ESTIMATED ONE-TIME COSTS TO LABORATORIES, ACCREDITATION ORGANIZATIONS (AO) AND EXEMPT STATES (ES) TO IMPLEMENT REPORTING REQUIREMENTS
Hours Range of cost estimate for implementing new CLIA Total number 1 Regulatory change Affected group of affected Hourly cost Occupation requirements and Section entities Low High 3202(b) of the CARES Act Low estimate High estimate
Tracking Mecha- All Laboratories 77,024 $203.16 1 11–9111, 5 7 $78,240,979 $109,537,371 nism. Performing 15–1245 SARS–CoV–2 Testing. Update Policies All Laboratories 77,024 110.74 11–9111 5 n/a 42,648,189 42,648,189 and Procedures. Performing SARS–CoV–2 Testing. AO/ES Updating AO/ES ...... 9 110.74 11–9111 25 30 24,917 29,900 Standards. AO/ES Update AO/ES ...... 9 110.74 11–9111 10 15 9,967 14,950 Policies and Pro- cedures. Infrastructure, Im- All Laboratories 77,024 92.42 15–1245 3 n/a 21,355,674 21,355,674 plementation of Performing Test Reporting. SARS–CoV–2 Testing. Infrastructure, Per- All Laboratories 77,024 38.48 31–9099 1 n/a 2,963,884 2,963,884 sonnel. Performing SARS–CoV–2 Testing.
106 https://www.bls.gov/oes/current/oes_nat.htm. 31–9099.
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TABLE 10—ESTIMATED ONE-TIME COSTS TO LABORATORIES, ACCREDITATION ORGANIZATIONS (AO) AND EXEMPT STATES (ES) TO IMPLEMENT REPORTING REQUIREMENTS—Continued
Hours Range of cost estimate for Total number implementing new CLIA requirements 1 and Section Regulatory change Affected group of affected Hourly cost Occupation 3202(b) of the CARES Act entities Low High Low estimate High estimate
Total In- ...... 145,243,610 176,529,968 creased Cost. 1 $101.58 hourly rate includes $55.37 (Management Level Employee) + $46.21 (Database Administrative/Architect). The wage rate would be double to $203.16 to include overhead and fringe benefits.
4. Quality Reporting: Updates to the calculations in future program years require hospitals to complete any forms Extraordinary Circumstances Exceptions (that is, the FY 2022 and FY 2023 or submit any additional information, (ECE) Granted for Four Value-Based program years). The existing individual and therefore, the program does not Purchasing Programs in Response to the ECE request form policy is accounted anticipate any change in burden PHE for COVID–19, and Update to the for in the currently approved Hospital associated with this IFC. Performance Period for the FY 2022 Inpatient Reporting PRA package, OMB The existing individual ECE request SNF VBP Program control #0938–1022 (expiration date form policy is accounted for in the currently approved Hospital Inpatient a. Updates to ESRD QIP: Utilization of December 31, 2022). There are no Reporting PRA package, OMB control Fourth Quarter CY 2019 ESRD QIP Data changes to the individual ECE request #0938–1022 (expiration date December and the Removal of the Option for form policy. This update does not require hospitals 31, 2022). There are no changes to the Facilities To Opt-Out of the to complete any forms or submit any individual ECE request form policy, and Extraordinary Circumstances Exception additional information to receive an therefore, no changes to the burden (ECE) Granted With Respect to First and ECE, and therefore, the program does associated with the Hospital VBP Second Quarter (CY) 2020 ESRD QIP not anticipate any change in burden Program. Data a associated with this IFC. In section II.D.1. of this IFC, we are e. Revised Performance Period for the updating our regulations at 42 CFR c. Update to the HRRP ECE Granted in FY 2022 SNF VBP Program as a Result 413.178(d)(7) to state that a facility has Response to the PHE for COVID–19 of the ECE Granted for the PHE for opted out of the ECE for COVID–19 with In section II.D.3. of this IFC, we COVID–19 respect to the reporting of fourth quarter excepted the use of claims data from the In section II.D.5. of this IFC, we are 2019 NHSN data if the facility actually first and second quarters of CY 2020 revising the performance period for the reported the data by the March 31, 2020 from the Hospital Readmissions FY 2022 SNF VBP Program Year. deadline but did not notify CMS that it Reduction Program because of our In the FY 2021 SNF PPS final rule,107 would do so., Additionally, we are concern that the data collected during we set out estimated impacts of the FY removing the ability of facilities to opt- this period may be greatly impacted by 2021 SNF VBP Program. At this time, out of the ECE we granted with respect the response to COVID–19, and those estimates represent our best to Q1 and Q2 2020 ESRD QIP data. therefore, may not be reflective of a approximation of the financial impact of These updates do not require facilities hospital’s performance during this time. the FY 2022 SNF VBP Program. We to complete any forms or submit any The existing individual ECE request anticipate that the revised performance additional information to receive an form policy is accounted for in the period would not have a substantial ECE, and therefore, the program does currently approved Hospital Inpatient impact on the estimated payback not anticipate any change in burden Reporting PRA package, OMB control percentage, Medicare savings, and associated with this IFC. #0938–1022 (expiration date December amount of value-based incentive The existing individual ECE request 31, 2022). There are no changes to the payments redistributed to SNFs for the form policy is accounted for in the individual ECE request form policy. FY 2022 SNF VBP Program. currently approved Hospital Inpatient This update does not require hospitals 5. NCD Procedural Volumes for Reporting PRA package, OMB control to complete any forms or submit any Facilities and Practitioners to Maintain #0938–1022 (expiration date December additional information, and therefore, Medicare Coverage 31, 2022). There are no changes to the the program does not anticipate any individual ECE request form policy and change in burden associated with this As discussed in section II.E. of this therefore no changes to the burden IFC. IFC, these provisions result in no impact associated with the ESRD QIP. to the Medicare program because they d. Update to the Hospital VBP Program will enable facilities and practitioners to b. Updates to the Application of the ECE Granted in Response to the PHE for continue to be eligible for coverage HAC Reduction Program ECE Policy in COVID–19 under the impacted NCDs during the Response to the PHE for COVID–19 Section II.D.4. of this IFC updates the PHE for COVID–19 that would have In section II.D.2. of this IFC, we are Hospital VBP Program ECE policy to been eligible for coverage if the COVID– updating the ECE policy for the HAC allow CMS to exclude any data Reduction Program to not use Q1 and submitted regarding care provided 107 The FY 2021 SNF PPS Final Rule can be accessed at https://www.federalregister.gov/ Q2 2020 data that were made optional during the first and second quarter of documents/2020/08/05/2020-16900/medicare- under the Guidance memo for scoring in CY 2020 from our calculation of program-prospective-payment-system-and- the HAC Reduction Program for scoring performance. This change does not consolidated-billing-for-skilled-nursing-facilities.
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19 pandemic had not occurred. Without impose additional administrative of issuers in a state market risk pool that the pandemic, facilities and burden on health insurance issuers elect to provide the temporary premium practitioners would likely have beyond the effort already required to credits, the amount of these premium continued to perform procedures submit data to HHS for the purposes of credits provided, as well as the market necessary to meet the procedural operating risk adjustment. Although we share of the issuers that provide these volume requirements specified in the do not know how many states will premium credits. For example, issuers NCDs. permit issuers to provide temporary with larger market share that offer large credits to reduce 2020 premiums or how premium credits will affect the 6. Limits on COVID–19 and Related many issuers will elect to do so, for statewide average premium more Testing Without an Order purposes of this analysis, we estimate significantly. Although we recognize the As discussed in section II.F. of this that approximately 40 percent of risk potential for financial impacts for IFC, we are revising the previous policy adjustment covered plans in each state individual issuers as a result of the outlined in the May 8th COVID–19 IFC, market risk pool will provide these clarifications in this IFC, we believe that which allowed for broad COVID–19 temporary premium credits to reduce if HHS permitted issuers that provided testing for a single beneficiary without the premiums charged to enrollees to premium credits to submit unadjusted a physician or other practitioner order support continuity of coverage during premiums for the purposes of by establishing that only a single the PHE for COVID–19. We anticipate calculating risk adjustment, distortions COVID–19 diagnostic test and one of that reporting of the adjusted, lower could occur which could also each other related test (as listed in the subscriber level premiums for 2020 financially impact individual issuers. May 8th COVID–19 IFC) without a benefit year risk adjustment data For example, absent the requirement treating physician or other practitioner submissions will lower the statewide that issuers that offer premium credits order is reasonable and necessary for average premium used to determine risk report the adjusted, lower premium Medicare payment. This limitation on adjustment transfer amounts under the amount for risk adjustment purposes, an tests without a treating physician/ state payment transfer formula for the issuer with a large market share with practitioner order will apply beginning 2020 benefit year, thereby lowering higher-than-average risk enrollees that on the effective date of this rule, and aggregate risk adjustment payments, provides temporary premium credits any tests furnished prior to the effective aggregate risk adjustment charges, and would inflate the statewide average date would not be considered for the overall magnitude of risk adjustment premium by submitting the higher, purposes of the limit on tests without a transfers, proportional to the amount of unadjusted premium amount, thereby physician or eligible ordering temporary premium credits provided by increasing its risk adjustment payment. practitioner order. We are also issuers of risk adjustment covered plans In such a scenario, a smaller issuer in establishing a policy whereby the orders for the 2020 benefit year. Consistent the same state market risk pool that of pharmacists and other practitioners with the assumptions used for the MLR owes a risk adjustment charge, and also that are allowed to order laboratory tests program, as described below, we provides premium credits to enrollees, in accordance with state scope of estimate that the aggregate impact of would pay a risk adjustment charge that practice and other pertinent laws can premium credits will result in an 8 is relatively higher than it would have fulfill the requirements related to orders percent reduction in annual premium, been if it were calculated based on a for covered COVID–19 tests for and a commensurate 8 percent statewide average that reflected the Medicare patients. We do not anticipate reduction in transfers for the 2020 actual, reduced premium charged to that these changes will affect overall benefit year.109 In the 2020 Payment enrollees by issuers in the state market Medicare expenditures over time Notice, HHS finalized the risk risk pool. Therefore, we believe that because they will better align the adjustment state payment transfer requiring issuers that offer temporary requirements for COVID–19 and related formula under the HHS risk adjustment premium credits for 2020 coverage to testing with other Medicare laboratory methodology for the 2020 benefit year, accurately report to the EDGE server the tests, which require the order of a and reaffirmed that HHS will continue adjusted, lower premium amounts physician or other practitioner based on to operate the risk adjustment program actually charged to enrollees is most the clinical needs of the beneficiary. in a budget neutral manner. Therefore, consistent with existing risk adjustment 6. Premium Reductions there is no net aggregate financial program requirements and mitigates the impact on health insurance issuers or distortions that would occur if issuers a. PPACA Risk Adjustment the federal government as a result of the that offer these temporary premium In this IFC, we clarify that issuers that risk adjustment provisions in this IFC. credits did not report the actual choose to provide temporary premium However, while risk adjustment amounts charged to enrollees, while not credits to consumers 108 must report the transfers are net neutral in aggregate, we imposing additional financial burden on adjusted plan premium amount, taking recognize that individual issuers may be issuers, as compared to an approach that into account the credits provided to financially impacted by reduced would permit issuers to report consumers as a reduction to premiums transfers (either lower risk adjustment unadjusted premium amounts. for the applicable months during 2020, payments or lower risk adjustment b. Medical Loss Ratio for risk adjustment data submissions for charges) if any issuer in the issuer’s the 2020 benefit year. As stated in state market risk pool provides premium In this IFC, we clarify that issuers that section IV. of this IFC, the Collection of credits to enrollees. The extent of this choose to provide temporary premium Information section, we do not believe impact will vary based on the number credits to consumers in 2020 must that the clarifications regarding risk account for these credits as reductions adjustment reporting in this IFC would 109 The effects of the risk adjustment program, to premium for the applicable months including estimated outlays and receipts for the during 2020 when reporting earned 108 See the CMS Memo ‘‘Temporary Policy on 2020 benefit year are provided in the 2020 Payment premium for the applicable MLR 2020 Premium Credits Associated with the COVID– Notice final rule, published in the April 25, 2019, 110 19 Public Health Emergency,’’ (August 4, 2020), Federal Register (84 FR 17454 at 17551). We relied reporting year. Although we do not available at https://www.cms.gov/CCIIO/Programs- on those estimates for purposes of estimating the and-Initiatives/Health-Insurance-Marketplaces/ impacts of the temporary premium credit policies 110 Because the MLR and rebate calculations are Downloads/Premium-Credit-Guidance.pdf. in this IFC. based on three years of data, reporting earned
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know how many states will permit number of beneficiaries selected for 42 CFR Part 482 issuers to provide temporary credits to sampling, which will be used to Grant program-health, Hospitals, reduce premiums or how many issuers complete quality reporting via the CMS Medicaid, Medicare, Reporting and will elect to do so, for purposes of this Web Interface or administer the CAHPS recordkeeping requirements. analysis, we estimate that for MIPS survey; however, this proposal approximately 40 percent of issuers could impact the number of 42 CFR Part 483 offering individual, small group or beneficiaries eligible to be sampled. Grant programs-health, Health merged market health insurance Therefore, we do not anticipate any facilities, Health professions, Health coverage will provide these temporary change in burden or impact on records, Medicaid, Medicare, Nursing premium credits to reduce the 2020 clinicians. In addition, we are homes, Nutrition, Reporting and _ premiums charged to enrollees to modifying the improvement activity IA recordkeeping requirements, Safety. support continuity of coverage during ERP_3 previously titled ‘‘COVID–19 the PHE for COVID–19. If an issuer Clinical Trial’’ and continuing it 42 CFR Part 485 provides temporary premium credits through CY 2021. Because MIPS eligible Grant programs-health, Health and consequently reports a lower clinicians are still required to submit facilities, Medicaid, Reporting and premium amount for MLR purposes, the the same number of activities and the recordkeeping requirements. lower reported premium will have the per response time for each activity is 42 CFR Part 488 effect of increasing MLRs and reducing uniform, we do not expect this rebates. Although we do not know the modification to affect our impact Administrative practice and number of issuers that will provide estimates in terms of the number of procedure, Health facilities, Health these credits or the amount of premium estimated respondents or the burden of professions, Medicare, Reporting and credits that issuers may elect to provide, compliance. recordkeeping requirements. for purposes of this estimate we assume 8. Addressing the Impact of COVID–19 42 CFR Part 493 that such premium credits would on on Part C and Part D Quality Rating Administrative practice and average constitute approximately 8 Systems percent of total annual premium procedure, Grant programs-health, (equivalent to one month of premium). As discussed in section II.H. of this Health facilities, Laboratories, Medicaid, Based on data for the 2018 MLR IFC, this policy allows us to calculate Medicare, Penalties, Reporting and reporting year, we estimate that rebates the 2022 Star Ratings. We do not recordkeeping requirements. for the 2020 MLR reporting year that anticipate changes in the distribution of For the reasons set forth in the will be paid in 2021 to enrollees by ratings from prior years. Therefore, preamble, the Centers for Medicare & issuers that choose to provide temporary these provisions result in no impact to Medicaid Services amends 42 CFR premium credits could decline by up to the Medicare program since ratings will chapter IV as set forth below: be similar to prior years. $500 million, as a result of enrollees PART 410—SUPPLEMENTARY receiving a total of up to $2 billion in List of Subjects MEDICAL INSURANCE (SMI) premium relief up front in 2020. BENEFITS Because the MLR calculation uses three 42 CFR Part 410 consecutive years of data, there may be Diseases, Health facilities, Health ■ 1. The authority citation for part 410 additional rebate decreases in professions, Laboratories, Medicare, continues to read as follows: subsequent years, although the impact Reporting and recordkeeping Authority: 42 U.S.C. 1302, 1395m, 1395hh, on rebates may be smaller as issuers requirements, Rural areas, X-rays. 1395rr, and 1395ddd. would likely account for the premium 42 CFR Part 413 relief provided to enrollees through ■ 2. Section 410.32 is amended by these temporary premiums credits at the Diseases, Health facilities, Medicare, revising paragraph (a)(3) to read as time they develop premium rates for the Puerto Rico, Reporting and follows: recordkeeping requirements. 2021 and 2022 benefit years. § 410.32 Diagnostic x-ray tests, diagnostic 7. Merit-Based Incentive Payment 42 CFR Part 414 laboratory tests, and other diagnostic tests: Conditions. System (MIPS) Updates Administrative practice and (a) * * * In section II.I. of this IFC, for the 2020 procedure, Biologics, Drugs, Health facilities, Health professions, Diseases, (3) Public Health Emergency MIPS performance period, we are exceptions. During the Public Health proposing to include in the MIPS Medicare, Reporting and recordkeeping requirements. Emergency for COVID–19, as defined in assignment methodology for the CMS § 400.200 of this chapter, the order of a Web Interface and CAHPS for MIPS 42 CFR Part 422 physician or other applicable survey the following additions due to Administrative practice and practitioner is not required for one the PHE for COVID–19: (1) CPT codes: procedure, Health facilities, Health otherwise covered diagnostic laboratory 99421, 99422, and 99423 (codes for maintenance organizations (HMO), test for COVID–19 and for one otherwise online digital E/M service (e-visit)), and Medicare, Penalties, Privacy, Reporting covered diagnostic laboratory test each 99441, 99442, and 99443 (codes for and recordkeeping requirements. for influenza virus or similar respiratory telephone E/M services); and (2) HCPCS condition needed to obtain a final codes: G2010 (code for remote 42 CFR Part 423 COVID–19 diagnosis when performed in evaluation of patient video/images) and Administrative practice and conjunction with COVID–19 diagnostic G2012 (code for virtual check-in). We do procedure, Emergency medical services, laboratory test in order to rule-out not believe this proposal will impact the Health facilities, Health maintenance influenza virus or related diagnosis. organizations (HMO), Health Subsequent otherwise covered COVID– premium for the 2020 benefit year will impact the professionals, Medicare, Penalties, MLR and rebate calculations for the 2020 through 19 and related tests described in the 2022 reporting years. See section 2718(b)(1)(B)(ii) of Privacy, Reporting and recordkeeping previous sentence are reasonable and the PHSA. Also see 45 CFR 158.220(b). requirements. necessary when ordered by a physician
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or nonphysician practitioner in PART 414—PAYMENT FOR PART B PART 422—MEDICARE ADVANTAGE accordance with this paragraph (a), or MEDICAL AND OTHER HEALTH PROGRAM when ordered by a pharmacist or other SERVICES healthcare professional who is ■ 7. The authority citation for part 422 authorized under applicable state law to ■ 5. The authority citation for part 414 continues to read as follows: order diagnostic laboratory tests. FDA- continues to read as follows: Authority: 42 U.S.C. 1302 and 1395hh. authorized COVID–19 serology tests are Authority: 42 U.S.C. 1302, 1395hh, and ■ 8. Section 422.166 is amended by included as covered tests subject to the 1395rr(b)(l). adding paragraph (i)(11) to read as same order requirements during the follows: Public Health Emergency for COVID–19, ■ 6. Section 414.1305 is amended by as defined in § 400.20 of this chapter, as adding the definition of ‘‘Primary care § 422.166 Calculation of Star Ratings. they are reasonable and necessary under services’’ in alphabetical order to read * * * * * section 1862(a)(1)(A) of the Act for as follows: (i) * * * beneficiaries with known current or (11) Special rules for the 2022 Star § 414.1305 Definitions. known prior COVID–19 infection or Ratings only. For the 2022 Star Ratings suspected current or suspected prior * * * * * only, CMS will not apply the provisions COVID–19 infection. Primary care services for purposes of in paragraph (i)(9) or (10) of this section * * * * * CMS Web Interface and the CAHPS for and CMS will not exclude the numeric MIPS survey beneficiary assignment values for affected contracts with 60 PART 413—PRINCIPLES OF means the set of services identified by percent or more of their enrollees in the REASONABLE COST any of the following: FEMA-designated Individual Assistance REIMBURSEMENT; PAYMENT FOR (1) CPT codes: area at the time of the extreme and END-STAGE RENAL DISEASE uncontrollable circumstance from the SERVICES; PROSPECTIVELY (i) 99201 through 99215 (codes for clustering algorithms or from the DETERMINED PAYMENT RATES FOR office or other outpatient visit for the determination of the performance SKILLED NURSING FACILITIES; evaluation and management of a summary and variance thresholds for PAYMENT FOR ACUTE KIDNEY patient); 99304 through 99318 (codes for the Reward Factor. INJURY DIALYSIS professional services furnished in a nursing facility, excluding professional * * * * * ■ 3. The authority citation for part 413 services furnished in a SNF for claims PART 423—VOLUNTARY MEDICARE continues to read as follows: identified by place of service (POS) PRESCRIPTION DRUG BENEFIT modifier 31); 99319 through 99340 Authority: 42 U.S.C. 1302, 1395d(d), 1395f(b), 1395g, 1395l(a), (i), and (n), (codes for patient domiciliary, rest ■ 9. The authority citation for part 423 1395x(v), 1395hh, 1395rr, 1395tt, and home, or custodial care visit); 99341 continues to read as follows: through 99350 (codes for evaluation and 1395ww. Authority: 42 U.S.C. 1302, 1306, 1395w– ■ management services furnished in a 101 through 1395w–152, and 1395hh. 4. Section 413.178 is amended by patient’s home for claims identified by ■ revising paragraph (d)(7) to read as POS modifier 12); 99490 (code for 10. Section 423.186 is amended by follows: chronic care management); and 99495 adding paragraph (i)(9) to read as follows: § 413.178 ESRD quality incentive program. and 99496 (codes for transitional care * * * * * management services); § 423.186 Calculation of Star Ratings. (d) * * * (ii) Beginning with the 2020 MIPS * * * * * (7) With the exception of first and payment year, 99487 and 99489 (codes (i) * * * second quarter 2020 ESRD QIP data for for chronic care management); and (9) Special rules for the 2022 Star which CMS granted an exception under (iii) For the CY 2020 MIPS Ratings only. For the 2022 Star Ratings paragraph (d)(6) of this section, a facility performance period and any subsequent only, CMS will not apply the provisions that has been granted an exception to performance period that starts during in paragraphs (i)(7) or (8) of this section the data submission requirements under the Public Health Emergency, as defined and CMS will not exclude the numeric paragraph (d)(6) of this section may in § 400.200, 99421, 99422, and 99423 values for affected contracts with 60 notify CMS that it will continue to (codes for online digital evaluation and percent or more of their enrollees in the submit data under paragraph (d)(1) of management services (e-visit)); and FEMA-designated Individual Assistance this section by sending an email signed 99441, 99442, and 99443 (codes for area at the time of the extreme and by the CEO or another designated telephone evaluation and management uncontrollable circumstance from the contact to the ESRD QIP mailbox at services). clustering algorithms or from the [email protected]. Upon receipt of determination of the performance (2) HCPCS codes: an email under this clause, CMS will summary and variance thresholds for notify the facility in writing that CMS is (i) G0402 (code for the Welcome to the Reward Factor. withdrawing the exception it previously Medicare visit); and G0438 and G0439 * * * * * granted to the facility. With respect to (codes for the annual wellness visits); fourth quarter 2019 ESRD QIP data for and PART 482—CONDITIONS OF which CMS granted an exception under (ii) For the CY 2020 MIPS PARTICIPATION FOR HOSPITALS paragraph (d)(6) of this section, a facility performance period and any subsequent is deemed to have met the requirements performance period that starts during ■ 11. The authority citation for part 482 of this paragraph if the facility actually the Public Health Emergency, as defined continues to read as follows: submitted the data by the March 31, in § 400.200, G2010 (code for remote Authority: 42 U.S.C. 1302, 1395hh, and 2020 submission deadline but did not evaluation of patient video/images); and 1395rr, unless otherwise noted. notify CMS that it would do so. G2012 (code for virtual check-in). ■ 12. Section 482.42 is amended by * * * * * * * * * * adding paragraph (e) to read as follows:
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§ 482.42 Condition of participation: with symptoms consistent with COVID– out of compliance with § 483.80(g)(1) Infection prevention and control and 19, or who tests positive for COVID–19, and (2) of this chapter are not required antibiotic stewardship programs. take actions to prevent the transmission to submit a plan of correction as * * * * * of COVID–19. indicated in § 488.408(f)(1). (e) COVID–19 Reporting. During the (5) Have procedures for addressing (d) This section is in effect during and Public Health Emergency, as defined in residents and staff, including the Public Health Emergency (PHE), as § 400.200 of this chapter, the hospital individuals providing services under defined in § 400.200 of this chapter, and must report information in accordance arrangement and volunteers, who refuse will continue for up to one year after the with a frequency as specified by the testing or are unable to be tested. end of the PHE. Secretary on COVID–19 in a (6) When necessary, such as in standardized format specified by the emergencies due to testing supply PART 493—LABORATORY Secretary. shortages, contact state and local health REQUIREMENTS departments to assist in testing efforts, ■ PART 483—REQUIREMENTS FOR such as obtaining testing supplies or 19. The authority citation for part 493 STATES AND LONG TERM CARE processing test results. is revised to read as follows: FACILITIES * * * * * Authority: 42 U.S.C. 263a, 1302, 1395x(e), ■ the sentence following 1395x(s)(11) through 13. The authority citation continues to 1395x(s)(16)). read as follows: PART 485—CONDITIONS OF PARTICIPATION: SPECIALIZED ■ 20. Section 493.2 is amended by Authority: 42 U.S.C. 1302, 1320, 1320a–7, PROVIDERS 1395i, 1395hh and 1396r. revising the definition of ‘‘Condition level requirements’’ to read as follows: ■ 14. Section 483.80 is amended by ■ 15. The authority citation for part 485 adding paragraph (h) to read as follows: continues to read as follows: § 493.2 Definitions. * * * * * § 483.80 Infection control. Authority: 42 U.S.C. 1302 and 1395hh. ■ Condition level requirements means * * * * * 16. Section 485.640 is amended by any of the requirements identified as (h) COVID–19 Testing. The LTC adding paragraph (d) to read as follows: ‘‘conditions’’ in § 493.41 and subparts G facility must test residents and facility § 485.640 Condition of participation: through Q of this part. staff, including individuals providing Infection prevention and control and * * * * * services under arrangement and antibiotic stewardship programs. volunteers, for COVID–19. At a ■ 21. Section 493.41 is added to subpart * * * * * minimum, for all residents and facility B to read as follows: (d) COVID–19 Reporting. During the staff, including individuals providing Public Health Emergency, as defined in § 493.41 Condition: Reporting of SARS– services under arrangement and § 400.200 of this chapter, the CAH must CoV–2 test results. volunteers, the LTC facility must: During the Public Health Emergency, (1) Conduct testing based on report information in accordance with a as defined in § 400.200 of this chapter, parameters set forth by the Secretary, frequency as specified by the Secretary each laboratory that performs a test that including but not limited to: on COVID–19 in a standardized format (i) Testing frequency; specified by the Secretary. is intended to detect SARS–CoV–2 or to (ii) The identification of any diagnose a possible case of COVID–19 PART 488—SURVEY, CERTIFICATION, individual specified in this paragraph (hereinafter referred to as a ‘‘SARS– AND ENFORCEMENT PROCEDURES diagnosed with COVID–19 in the CoV–2 test’’) must report SARS–CoV–2 test results to the Secretary in such form facility; ■ 17. The authority citation for part 488 and manner, and at such timing and (iii) The identification of any continues to read as follows: individual specified in this paragraph frequency, as the Secretary may with symptoms consistent with COVID– Authority: 42 U.S.C. 1302 and 1395hh. prescribe. 19 or with known or suspected exposure ■ 18. Section 488.447 is added to read ■ 22. Section 493.555 is amended by to COVID–19; as follows: adding paragraph (c)(6) to read as (iv) The criteria for conducting testing follows: of asymptomatic individuals specified § 488.447 Civil Money Penalties imposed in this paragraph, such as the positivity for failure to comply with 42 CFR § 493.555 Federal review of laboratory 483.80(g)(1) and (2). requirements. rate of COVID–19 in a county; (v) The response time for test results; (a) CMS may impose a civil money * * * * * and penalty for noncompliance with the (c) * * * (vi) Other factors specified by the requirements at § 483.80(g)(1) and (2) of (6) Notify CMS within 10 days of any Secretary that help identify and prevent this chapter as follows: conditional level deficiency under the transmission of COVID–19. (1) Minimum. A minimum of $1,000 §§ 493.41 or 493.1100(a). (2) Conduct testing in a manner that for the first occurrence. ■ 23. Section 493.1100 is amended by is consistent with current standards of (2) Increased amount. An amount adding paragraph (a) and reserving practice for conducting COVID–19 tests; equal to $500 added to the previously paragraph (b) to read as follows: (3) For each instance of testing: imposed civil money penalty amount (i) Document that testing was for each subsequent occurrence, not to § 493.1100 Condition: Facility completed and the results of each staff exceed the maximum amount set forth administration. test; and in § 488.408(d)(1)(iii). * * * * * (ii) Document in the resident records (b) The penalty amounts in this (a) Reporting of SARS–CoV–2 test that testing was offered, completed (as section will be adjusted annually under results. During the Public Health appropriate to the resident’s testing 45 CFR part 102. Emergency, as defined in § 400.200 of status), and the results of each test. (c) Compliance with the requirements this chapter, each laboratory that (4) Upon the identification of an at § 483.80(g)(1) and (2) of this chapter performs a test that is intended to detect individual specified in this paragraph will be assessed weekly. Facilities found SARS–CoV–2 or to diagnose a possible
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case of COVID–19 (hereinafter referred condition level deficiency under (iii) For a condition level deficiency to as a ‘‘SARS–CoV–2 test’’) must report §§ 493.41 or 493.1100(a), CMS does not under §§ 493.41 or 493.1100(a), the SARS–CoV–2 test results to the impose alternative sanctions on penalty amount is $1,000 for the first Secretary in such form and manner, and laboratories that have certificates of day of noncompliance and $500 for each at such timing and frequency, as the waiver because those laboratories are additional day of noncompliance. Secretary may prescribe. not routinely inspected for compliance * * * * * (b) [Reserved] with condition-level requirements.) Dated: August 14, 2020. ■ 24. Section 493.1804 is amended by * * * * * Seema Verma, revising paragraph (c)(1) to read as ■ 25. Section 493.1834 is amended by Administrator, Centers for Medicare & follows: adding paragraph (d)(2)(iii) to read as Medicaid Services. § 493.1804 General considerations. follows: Dated: August 21, 2020. Alex M. Azar II, * * * * * § 493.1834 Civil money penalty. (c) * * * Secretary, Department of Health and Human * * * * * (1) CMS may impose alternative Services. sanctions in lieu of, or in addition to (d) * * * [FR Doc. 2020–19150 Filed 8–27–20; 4:15 pm] principal sanctions. (Except for a (2) * * * BILLING CODE 4120–01–P
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Part V
The President
Proclamation 10064—Adjusting Imports of Steel Into the United States Memorandum of August 29, 2020—Extension of the Use of the National Guard To Respond to COVID–19 and To Facilitate Economic Recovery
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Federal Register Presidential Documents Vol. 85, No. 171
Wednesday, September 2, 2020
Title 3— Proclamation 10064 of August 28, 2020
The President Adjusting Imports of Steel Into the United States
By the President of the United States of America
A Proclamation 1. On January 11, 2018, the Secretary of Commerce (Secretary) transmitted to me a report on his investigation into the effect of imports of steel mill articles (steel articles) on the national security of the United States under section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862). The Secretary found and advised me of his opinion that steel articles were being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security of the United States. 2. In Proclamation 9705 of March 8, 2018 (Adjusting Imports of Steel Into the United States), I concurred in the Secretary’s finding that steel articles, as defined in clause 1 of Proclamation 9705, as amended by clause 8 of Proclamation 9711 of March 22, 2018 (Adjusting Imports of Steel Into the United States), were being imported into the United States in such quantities and under such circumstances as to threaten to impair the national security of the United States, and decided to adjust the imports of these steel articles by imposing a 25 percent ad valorem tariff on such articles imported from most countries. 3. In Proclamation 9705, I further stated that any country with which we have a security relationship is welcome to discuss with the United States alternative ways to address the threatened impairment of the national security caused by imports from that country, and noted that, should the United States and any such country arrive at a satisfactory alternative means to address the threat to the national security such that I determine that imports from that country no longer threaten to impair the national security, I may remove or modify the restriction on steel article imports from that country and, if necessary, adjust the tariff as it applies to other countries, as the national security interests of the United States require. 4. In Proclamation 9740 of April 30, 2018 (Adjusting Imports of Steel Into the United States), I noted that the United States had agreed in principle with the Federative Republic of Brazil (Brazil) on satisfactory alternative means to address the threatened impairment to our national security posed by steel articles imported from Brazil. In Proclamation 9759 of May 31, 2018 (Adjusting Imports of Steel Into the United States), I noted that the United States had agreed on measures with Brazil that would provide effec- tive, long-term alternative means to address Brazil’s contribution to the threatened impairment to our national security. These included quantitative limitations that restrict the volume of steel articles imported into the United States from Brazil. In light of these agreed-upon measures, I determined that steel article imports from Brazil would no longer threaten to impair the national security and decided to exclude Brazil from the tariff proclaimed in Proclamation 9705, as amended. I further noted that the United States would monitor the implementation and effectiveness of those measures to address our national security needs. 5. In Proclamation 9759, I also directed the Secretary to monitor implementa- tion of quantitative limitations applicable to steel article imports from Brazil
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and inform me of any circumstance that in the Secretary’s opinion might indicate that an adjustment of the quantitative limitations is necessary. 6. The Secretary has advised me that there have been significant changes in the United States steel market since the time I decided to exclude, on a long-term basis, Brazil from the tariff proclaimed in Proclamation 9705, as amended. The United States steel market has contracted in 2020. After increasing in 2018 and 2019, steel shipments by domestic producers through June of this year are approximately 15 percent lower than shipments for the same time period in 2019, with shipments in April and May of this year more than 30 percent lower than the shipments in the same months in 2019. The Secretary has further advised me that domestic pro- ducers’ adjusted year-to-date capacity utilization rate through August 15, 2020, is below 70 percent and that the current rate has been near or below 60 percent since the second week of April. Brazil is also the second largest source of steel imports to the United States and the largest source of imports of semi-finished steel products. Moreover, imports from most countries have declined this year in a manner commensurate with this contraction, whereas imports from Brazil have decreased only slightly. 7. In light of these significantly changed market conditions, I have determined that the alternative measures regarding Brazilian steel imports, without any modifications, will be ineffective in eliminating the threat to the national security posed by imports of such articles, in the current environment. The United States and Brazil have held consultations regarding Brazil’s steel exports to the United States. As a result of these discussions, the United States will lower, for the remainder of 2020, one of the quantitative limitations set forth in Proclamation 9759 applicable to certain steel articles imported from Brazil. In my judgment, this modification will preserve the effectiveness of the alternative means to address the threatened impairment to our national security by further restraining steel article exports to the United States from Brazil during this period of market contraction. In light of this modification, I have determined that steel article imports from Brazil will not threaten to impair the national security and thus have decided to continue to exclude Brazil from the tariff proclaimed in Proclamation 9705, as amended. The United States and Brazil will hold further consulta- tions in December 2020 to discuss the state of the steel trade between the two countries in light of then-prevailing market conditions. 8. I have been informed that a reduction in this quantitative limitation set forth in Proclamation 9759 applicable to certain steel article imports from Brazil may delay or disrupt specific production activities in the United States for which imports of the steel articles covered by the quantitative limitation have already been contracted for delivery in the fourth quarter of this year. In light of these circumstances, and after considering the impact on the economy and the national security objectives of section 232 of the Trade Expansion Act of 1962, as amended, I have determined to direct the Secretary to provide relief from the quantitative limitation set forth in this proclamation in certain limited circumstances specified in more detail below, in addition to the relief from the quantitative limitations that the Secretary is already authorized to provide pursuant to clause 1 of Procla- mation 9777 of August 29, 2018 (Adjusting Imports of Steel Into the United States). 9. Section 232 of the Trade Expansion Act of 1962, as amended, authorizes the President to adjust the imports of an article and its derivatives that are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security of the United States. 10. Section 604 of the Trade Act of 1974, as amended (19 U.S.C. 2483), authorizes the President to embody in the Harmonized Tariff Schedule of the United States (HTSUS) the substance of statutes affecting import treat- ment, and actions thereunder, including the removal, modification, continu- ance, or imposition of any rate of duty or other import restriction.
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NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by the authority vested in me by the Constitution and the laws of the United States of America, including section 232 of the Trade Expansion Act of 1962, as amended, section 301 of title 3, United States Code, and section 604 of the Trade Act of 1974, as amended, do hereby proclaim as follows: (1) For purposes of administering the quantitative limitation applicable to subheading 9903.80.57 of subchapter III of chapter 99 of the HTSUS for Brazil, the annual aggregate limit for Brazil set out in the Annex to this proclamation shall apply for calendar year 2020. This aggregate limit, which shall take into account all steel article imports from Brazil covered by this subheading since January 1, 2020, shall be effective for steel articles entered for consumption, or withdrawn from warehouse for consumption, under this subheading, between August 28, 2020 and December 31, 2020. For calendar year 2021 and for subsequent years, the annual aggregate limit for Brazil shall revert to the aggregate limit for Brazil set forth in the Annex to Proclamation 9759, unless that limit is further modified or termi- nated. (2) The Secretary shall, on an expedited basis, grant relief from the quan- titative limitation applicable to subheading 9903.80.57 of subchapter III of chapter 99 of the HTSUS for Brazil, as set out in the Annex to this proclama- tion, for any steel article where (i) the party requesting relief entered into a contract or other written agreement for the production and shipment of such steel article before August 28, 2020; (ii) such agreement specifies the quantity of such steel article that is to be produced and shipped to the United States prior to December 31, 2020; (iii) such steel article is to be used in production activities in the United States and such steel article cannot be procured from another supplier to meet the delivery sched- ule and specifications contained in such agreement; and (iv) lack of relief from the quantitative limitation on such steel article would significantly disrupt the production activity in the United States for which the steel article specified in such agreement is intended. The volume of imports for which the Secretary grants relief under this clause shall not exceed 60,000,000 kilograms in the aggregate. (3) The Secretary shall grant relief under clause 2 of this proclamation only upon receipt of a sworn statement signed by the chief executive officer and the chief legal officer of the party requesting relief, attesting that (i) the steel article for which relief is sought and the associated contract or other written agreement meet the criteria for relief set forth in clause 2(i) through (iv) of this proclamation; (ii) the party requesting relief will accu- rately report to U.S. Customs and Border Protection (CBP), in the manner that CBP prescribes, the quantity of steel articles entered for consumption, or withdrawn from warehouse for consumption, pursuant to any grant of relief; and (iii) the quantity of steel articles entered pursuant to a grant of relief will not exceed the quantity for which the Secretary has granted relief. The Secretary shall notify CBP of any grant of relief made pursuant to this proclamation. The Secretary shall revoke any grant of relief under clause 2 of this proclamation if the Secretary determines at any time after such grant that the criteria for relief have not been met and may, if the Secretary deems it appropriate, notify the Attorney General of the facts that led to such revocation. (4) As soon as practicable, the Secretary shall issue procedures for the requests for relief described in clauses 2 and 3 of this proclamation. The issuance of such procedures is exempt from Executive Order 13771 of January 30, 2017 (Reducing Regulation and Controlling Regulatory Costs). CBP shall implement relief provided under clause 2 of this proclamation as soon as practicable. (5) Until such time as the applicable quantitative limitation provided in subheading 9903.80.57 of subchapter III of chapter 99 of the HTSUS for Brazil has been reached, CBP shall count any steel article for which
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relief is granted under clause 2 of this proclamation toward such quantitative limitation at the time when such steel article is entered for consumption or withdrawn from warehouse for consumption. Any steel article for which relief is granted under clause 2 of this proclamation must be entered for consumption, or withdrawn from warehouse for consumption, on or before December 31, 2020, and, before January 1, 2021, further relief may not be granted for such article by the Secretary under clause 1 of Proclamation 9777. Steel articles for which relief is granted under clause 2 of this proclama- tion shall be subject to the duty treatment provided in subheading 9903.80.62 of subchapter III of chapter 99 of the HTSUS for Brazil, as established by the Annex to this proclamation. (6) Subdivision (a)(iii) of U.S. note 16 to subchapter III of chapter 99 of the HTSUS is amended by striking ‘‘9903.80.61’’ and inserting in its place ‘‘9903.80.62’’. (7) Subdivision (c) of U.S. note 16 to subchapter III of chapter 99 of the HTSUS is amended by striking, in the last sentence, ‘‘and 9903.80.61’’ and inserting in its place: ‘‘, 9903.80.61, and 9903.80.62’’. (8) Subdivision (d) of U.S. note 16 to subchapter III of chapter 99 of the HTSUS is amended by striking, in the first sentence, ‘‘and 9903.80.61’’ and inserting in its place: ‘‘through 9903.80.62’’. (9) The superior text to subheadings 9903.80.05 through 9903.80.58 of subchapter III of chapter 99 of the HTSUS is amended by striking ‘‘and 9903.80.61’’ and inserting in its place: ‘‘through 9903.80.62’’. (10) To implement clause 2 of this proclamation, subchapter III of chapter 99 of the HTSUS is modified as provided in the Annex to this proclamation. (11) The modifications to the HTSUS made by clauses 6 through 10 of this proclamation and the Annex to this proclamation shall be effective with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on August 28, 2020, and shall continue in effect, unless such actions are expressly reduced, modified, or terminated. (12) Any provision of previous proclamations and Executive Orders that is inconsistent with the actions taken in this proclamation is superseded to the extent of such inconsistency. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-eighth day of August, in the year of our Lord two thousand twenty, and of the Independence of the United States of America the two hundred and forty- fifth.
Billing code 3295–F0–P
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[FR Doc. 2020–19595 Filed 9–1–20; 11:15 a.m.] Billing code 7020–02–C
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Memorandum of August 29, 2020
Extension of the Use of the National Guard To Respond to COVID–19 and To Facilitate Economic Recovery
Memorandum for the Secretary of Defense [and] the Secretary of Home- land Security
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121–5207 (the ‘‘Stafford Act’’), and section 502 of title 32, United States Code, it is hereby ordered as follows: Section 1. Policy. It continues to be the policy of the United States to foster close cooperation and mutual assistance between the Federal Govern- ment and the States and territories in the battle against the threat posed by the spread of COVID–19, especially as the United States transitions to a period of increased economic activity and recovery in those areas of the Nation where the threat posed by COVID–19 has been sufficiently mitigated. To date, activated National Guard forces around the country have provided critical support to Governors as they have worked to address the needs of those populations within their respective States and territories who are especially vulnerable to the effects of COVID–19, including those in nursing homes, assisted living facilities, and other long-term care or congregate settings. Additionally, States and territories may need assistance in fighting COVID–19 hot spots as they emerge. Therefore, to continue to support States and territories as they make decisions about the responses required to address local conditions in their respective jurisdictions with respect to combatting the threat posed by COVID–19 and, where appropriate, facilitating their economic recovery, I am taking the actions set forth in sections 2 and 3 of this memorandum: Sec. 2. Additional Twenty-Five Percent Federal Cost Share. To maximize assistance to the Governor of the State of Louisiana, where the National Guard has also been fully deployed and is engaged in the effort to help the State recover from the devastation of Hurricane Laura, and to facilitate Federal support with respect to the use of National Guard units under State control, I am directing the Federal Emergency Management Agency (FEMA) of the Department of Homeland Security to fund an additional 25 percent of the emergency assistance activities associated with preventing, mitigating, and responding to the threat to public health and safety posed by the virus that Louisiana undertakes using its National Guard forces, as authorized by sections 403 (42 U.S.C. 5170b) and 503 (42 U.S.C. 5193) of the Stafford Act. This, in addition to the 75 percent Federal cost share established in my prior memorandum dated August 3, 2020, titled ‘‘Extension of the Use of the National Guard to Respond to COVID–19 and to Facilitate Economic Recovery,’’ shall provide the State of Louisiana with a 100 percent Federal cost share. Sec. 3. Additional Twenty-Five Percent Federal Cost Share Termination. The additional 25 percent Federal cost share for the State’s use of National Guard forces for the State of Louisiana shall extend to, and shall be available for orders of any length authorizing duty through September 30, 2020. Such orders include duty necessary to comply with health protection protocols recommended by the Centers for Disease Control and Prevention of the
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Department of Health and Human Services or other health protection meas- ures agreed to by the Department of Defense and FEMA. Sec. 4. General Provisions. (a) Nothing in this memorandum shall be con- strued to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. (d) The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register.
THE WHITE HOUSE, Washington, August 29, 2020
[FR Doc. 2020–19599 Filed 9–1–20; 11:15 am] Billing code 5001–06–P
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Reader Aids Federal Register Vol. 85, No. 171 Wednesday, September 2, 2020
CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER
Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 261...... 54311 Presidential Documents 3 CFR Executive orders and proclamations 741–6000 Proclamations: The United States Government Manual 741–6000 9705 (See Proc. 40 CFR 10064) ...... 54877 Other Services 52 ...... 54504, 54507, 54509, 9759 (See Proc. 54510 741–6020 Electronic and on-line services (voice) 10064) ...... 54877 141...... 54235 Privacy Act Compilation 741–6050 10064...... 54877 143...... 54235 Administrative Orders: 180...... 54259 Memorandums: ELECTRONIC RESEARCH Proposed Rules: Memorandum of 81...... 54517 World Wide Web August 29, 2020...... 54883
Full text of the daily Federal Register, CFR and other publications 12 CFR 41 CFR is located at: www.govinfo.gov. 624...... 54233 201...... 54263 Federal Register information and research tools, including Public Inspection List and electronic text are located at: 14 CFR www.federalregister.gov. 39...... 54481 42 CFR 71...... 54233 9...... 54271 E-mail Proposed Rules: 410...... 54820 FEDREGTOC (Daily Federal Register Table of Contents Electronic 39...... 54286, 54515 413...... 54820 Mailing List) is an open e-mail service that provides subscribers 17 CFR 414...... 54820 with a digital form of the Federal Register Table of Contents. The 422...... 54820 digital form of the Federal Register Table of Contents includes 227...... 54483 423...... 54820 239...... 54483 HTML and PDF links to the full text of each document. 482...... 54820 To join or leave, go to https://public.govdelivery.com/accounts/ 18 CFR 483...... 54820 USGPOOFR/subscriber/new, enter your email address, then 292...... 54638 485...... 54820 follow the instructions to join, leave, or manage your 375...... 54638 488...... 54820 subscription. 493...... 54820 PENS (Public Law Electronic Notification Service) is an e-mail 27 CFR Proposed Rules: service that notifies subscribers of recently enacted laws. 9...... 54491 405...... 54327 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 29 CFR and select Join or leave the list (or change settings); then follow 47 CFR the instructions. Proposed Rules: 2510...... 54288 Proposed Rules: FEDREGTOC and PENS are mailing lists only. We cannot 1...... 54523 respond to specific inquiries. 33 CFR Reference questions. Send questions and comments about the 100...... 54494 49 CFR Federal Register system to: [email protected] 117...... 54496 571...... 54273 The Federal Register staff cannot interpret specific documents or 165 ...... 54497, 54499, 54501 regulations. 34 CFR 50 CFR 600...... 54742 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 17...... 54281 602...... 54742 668...... 54742 622...... 54513 54233–54480...... 1 648...... 54514 54481–54884...... 2 36 CFR 679...... 54285 Proposed Rules: Proposed Rules: 214...... 54311 17...... 54339 228...... 54311 660...... 54529
VerDate Sep 11 2014 21:00 Sep 01, 2020 Jkt 250001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\02SECU.LOC 02SECU jbell on DSKJLSW7X2PROD with FR_CU ii Federal Register / Vol. 85, No. 171 / Wednesday, September 2, 2020 / Reader Aids
listserv.gsa.gov/cgi-bin/ wa.exe?SUBED1=PUBLAWS- LIST OF PUBLIC LAWS Public Laws Electronic L&A=1 Notification Service Note: No public bills which (PENS) Note: This service is strictly have become law were for email notification of new received by the Office of the laws. The text of laws is not Federal Register for inclusion PENS is a free email available through this service. in today’s List of Public notification service of newly PENS cannot respond to Laws. enacted public laws. To specific inquiries sent to this Last List August 18, 2020 subscribe, go to https:// address.
VerDate Sep 11 2014 21:00 Sep 01, 2020 Jkt 250001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4711 E:\FR\FM\02SECU.LOC 02SECU jbell on DSKJLSW7X2PROD with FR_CU