Tag: DOE

DOE Ramping Up General Service Lamp Enforcement

Largely out of public view, the U.S. Department of Energy (DOE) has been ramping up enforcement of its “backstop” efficiency standard and sales prohibition regarding general service lamps, including incandescent bulbs. After a period of enforcement discretion (previewed in published guidance) that has now passed, we expect at least some of DOE’s efforts to become public in the coming months as the Department begins to settle enforcement actions and assess civil penalties against non-compliant lamp manufacturers, importers, distributors, and retailers.

The Final Rule

Following a rulemaking process that took many twists and turns over the past decade (as summarized in a prior alert), as of July 25, 2022, the sale of any general service lamp that does not meet a minimum efficacy standard of 45 lumens per watt hour (lm/W) is prohibited. 10 C.F.R. § 430.32(dd).

A “general service lamp” (GSL) is a lamp that:

  1. Has an ANSI base;
  2. For an integrated lamp, is able to operate at a voltage or in a voltage range of 12 or 24 volts, 100–130 volts, 220–240 volts, or 277 volts;
  3. For a non-integrated lamp, is able to operate at any voltage;
  4. Has an initial lumen output of greater than or equal to 310 lumens (or 232 lumens for modified spectrum general service incandescent lamps) and less than or equal to 3,300 lumens;
  5. Is not a light fixture;
  6. Is not an LED downlight retrofit kit; and
  7. Is used in general lighting applications.

10 C.F.R. § 430.2. GSLs include, but are not limited to, general service incandescent lamps, compact fluorescent lamps, general service light-emitting diode lamps, and general service organic light-emitting diode lamps. GSLs consist of pear-shaped A-type bulbs, but also five categories of specialty incandescent lamps (rough service lamps, shatter-resistant lamps, 3-way incandescent lamps, high lumen incandescent lamps, and vibration service lamps), incandescent reflector lamps, and a variety of decorative lamps (T-Shape, B, BA, CA, F, G16-1/2, G25, G30, S, M-14 of 40W or less, and candelabra base lamps). DOE maintains exclusions for twenty-six categories of lamps, including appliance lamps and colored lamps, among others. Id.

Approximately 30 percent of light bulbs sold across the United States in 2020 were incandescent or halogen incandescent lamps. Almost all such lamps would fail to meet the statutory 45 lm/W backstop standard. Because many LED lamps, in contrast, can meet the 45 lm/W standard, DOE’s actions are accelerating a transition to LEDs.

Federal and State Enforcement

During this transition, DOE enforcement is likely to most aggressively target manufacturers and importers continuing to distribute non-compliant lamps, and will include the assessment of civil penalties. DOE is authorized to assess penalties of as much as $560 for each non-compliant lamp sold. While enforcement actions typically settle for tens or hundreds of thousands of dollars, DOE has obtained seven-figure settlements for more significant violations or where a business has repeatedly failed to comply.

Specifically with respect to general service lamps (but not for other covered products), the Department is also authorized to enforce against distributors and retailers who sell non-compliant lamps, and early indications are that DOE is beginning to act on that authority. Because the federal backstop standard is enforced at the time of sale, lamps imported into the United States before July 25, 2022, are not exempt from enforcement if sold after the deadline.

Separately, some states—including California—also enforce their own efficiency standards for products not subject to federal standards. The California Energy Commission recently settled an enforcement action for over $120,000 against a company that was selling state-regulated LEDs that were not certified in California’s compliance database prior to sale, and which did not meet state standards.

Next Steps

Businesses operating at any stage in the lamp supply chain should, therefore, take immediate steps to ensure they are not making, importing, distributing, or selling to consumers any lamps that do not meet applicable federal or state requirements. To determine whether a particular general service lamp meets the backstop standard, one can take the total lumens produced by the lamp and divide it by its wattage. If the calculated number is below 45, and the product does not qualify for any of the listed exclusions, then it is non-compliant, and its continued sale could prompt federal enforcement.

© 2024 Beveridge & Diamond PC
For more news on DOE Lighting Enforcement, visit the NLR Environmental Energy Resources section.

US Issues Final Regulations on FEOC Exclusions from Clean Vehicle Credit

On May 6, 2024, the U.S. Department of the Treasury (Treasury) and Internal Revenue Service (IRS) published final regulations (Final Regulations) regarding clean vehicle tax credits under Internal Revenue Code sections 25E and 30D established by the Inflation Reduction Act of 2022 (IRA). Among other important guidance, the Treasury regulations finalized its rules on Foreign Entity of Concern (FEOC) restrictions regarding the section 30D tax credit. On the same day, in conjunction with the Treasury final regulations, the U.S. Department of Energy (DOE) published a final interpretive rule (Notification of Final Interpretive Rule) finalizing its guidance for interpreting the statutory definition of FEOC under Section 40207 of the Infrastructure Investment and Jobs Act (IIJA). The Treasury final regulations and the DOE final interpretive rule largely adopted the proposed regulations and interpretive rule on FEOC published by the Treasury and the DOE on December 4, 2023, with some important changes and clarifications.

DOE Final Interpretative Rule on FEOC

The DOE’s final interpretive rule confirms the major elements of the December 2023 proposed interpretive rule and clarifies the definition of “foreign entity of concern” by providing interpretations of the following key terms: “government of a foreign country,” “foreign entity,” “subject to the jurisdiction,” and “owned by, controlled by, or subject to the direction.”

The final rule does not make any changes to its interpretations of “foreign entity” and “subject to the jurisdiction,” but makes clarifying changes to its interpretations of “government of a foreign country” and “owned by, controlled by, or subject to the direction.”

Government of a Foreign Country

The DOE’s final interpretive rule does not change the framework of the definition of “government of a foreign country,” which includes, among other elements, current or former senior political figures of a foreign country and their immediate family members. However, in the specific context of the PRC, DOE makes substantial changes and clarifies that the definition of “senior foreign political figure” now also includes current and former members of the National People’s Congress and Provincial Party Congresses, and current but not former members of local or provincial Chinese People’s Political Consultative Conferences.

Moreover, the final rule further clarifies and broadens when an official will be considered “senior” as follows: “an official should be or have been in a position of substantial authority over policy, operations, or the use of government-owned resources” (emphasis added).

Owned by, Controlled by, or Subject to the Direction

The DOE’s final interpretive rule is largely consistent with the proposed interpretive rule for the interpretations of “owned by, controlled by, or subject to the direction,” but makes some clarifying edits in response to public comments.

  • Control by 25% Interest

The DOE’s final interpretive rule finalizes the 25% control test provided in the proposed interpretive rule and makes further clarifications to the method for calculating the control percentage. The 25% threshold is to apply to each metric (board seats, voting rights, and equity interests) independently, not in combination, and the highest metric is used for the FEOC analysis. For example, if an entity has 20% of its voting rights, 10% of its equity interests, and 15% of its board seats held by the government of a covered nation, the entity would be treated as being 20% controlled by the covered nation government (not combined 45% control).

  • Effective Control by Licensing and Contracting

The DOE’s final interpretive rule finalizes that licensing agreements or other contracts can create a control relationship for FEOC test purposes and has proposed a safe harbor for evaluation of “effective control.” The final interpretive rule provides a list of rights covering five categories that need to be expressly reserved under the safe harbor rule. One requirement is that a non-FEOC needs to retain access to and use of any intellectual property, information, and data critical to production. In response to public comments, the final interpretive rule makes compromise regarding this requirement and provides that the non-FEOC entities need to retain such access and use no longer than “the duration of the contractual relationship.”

Moreover, in the final interpretive rule, the DOE declines to expand the definition of “control” to include foreign entities that receive significant government subsidies, grants, or debt financing from the government of a covered nation.

Treasury Final Regulations on FEOC Restrictions

The Treasury’s final regulations cross-reference the DOE’s FEOC interpretive guidance regarding FEOC definitions. Similar to the DOE’s final interpretive rule, the Treasury’s final regulations generally follow the December 2023 proposed regulations regarding FEOC restrictions and compliance regulations relating to the section 30D clean vehicle tax credit, but have also made certain important modifications and clarifications outlined below:

Allocation-based Accounting Rules

For the FEOC restrictions, the Treasury final regulations make permanent the allocation-based accounting rules for applicable critical minerals contained in battery cells and associated constituent materials.

Due Diligence

The final regulations confirm that to satisfy the due diligence requirement for FEOC compliance, and in addition to the due diligence conducted by the manufacturers meeting the qualification requirements of the regulations (qualified manufacturers) themselves, the qualified manufacturers can also reasonably rely on due diligence and attestations and certifications from suppliers if the qualified manufacturers do not know or have reason to know that such attestations or certifications are incorrect.

Impracticable-to-trace Battery Materials

The final regulations finalize a transition rule, which provides that the FEOC restrictions will not apply to qualified manufacturers as to “impracticable-to-trace battery materials” before 2027. The term “impracticable-to-trace battery materials” replaces the proposed regulations’ reference to “non-traceable battery materials.” Impracticable-to-trace battery materials are defined in the final regulations as specifically identified low-value battery materials that originate from multiple sources and are commingled by suppliers during production processes to a degree that the qualified manufacturers cannot determine the origin of such materials. The final regulations also identify certain battery materials as constituting impracticable-to-trace battery materials. Qualified manufacturers may temporarily exclude impracticable-to-trace battery materials from the required FEOC due diligence and FEOC compliance determinations until January 1, 2027. To take advantage of this transition rule, qualified manufacturers must submit a report during the upfront review process as set forth in the final regulations, demonstrating how they will comply with the FEOC restrictions once the transition rule is no longer in effect.

Traced Qualifying Value Test

The final regulations provide a new test, the “traced qualifying value test,” for OEMs to trace the sourcing of critical minerals and determine the actual value-added percentage for each applicable qualifying critical mineral for each procurement chain.

Exemption for New Qualified Fuel Cell Motor Vehicles

The final regulations also confirm that the FEOC restrictions generally do not apply to new qualified fuel cell motor vehicles (with certain exception) as they do not contain clean vehicle batteries.

Conclusion

Under the final regulations and final interpretive rule, to take advantage of the section 30D tax credit, qualified manufacturers shall conduct FEOC and supply chain analysis and satisfy the due diligence, certification and other requirements. Moreover, for the qualified manufacturers that seek to rely on their battery suppliers’ due diligence and relevant attestations or certifications, they should consider incorporating terms in their contracts with such suppliers that require reporting and tracing assurances regarding battery materials and critical minerals.

The DOE’s final interpretive rule became effective on May 6, 2024. The Treasury’s final regulations will be effective on July 5, 2024.

© 2024 Miller, Canfield, Paddock and Stone PLC
For more news on FEOC Exclusions from Clean Vehicle Credit, visit the NLR Tax section.

Federal Agencies Announce Investments and Resources to Advance National Biotechnology and Biomanufacturing Initiative

As reported in our September 13, 2022, blog item, on September 12, 2022, President Joseph Biden signed an Executive Order (EO) creating a National Biotechnology and Biomanufacturing Initiative “that will ensure we can make in the United States all that we invent in the United States.” The White House hosted a Summit on Biotechnology and Biomanufacturing on September 14, 2022. According to the White House fact sheet on the summit, federal departments and agencies, with funding of more than $2 billion, will take the following actions:

  • Leverage biotechnology for strengthened supply chains: The Department of Health and Human Services (DHHS) will invest $40 million to expand the role of biomanufacturing for active pharmaceutical ingredients (API), antibiotics, and the key starting materials needed to produce essential medications and respond to pandemics. The Department of Defense (DOD) is launching the Tri-Service Biotechnology for a Resilient Supply Chain program with a more than $270 million investment over five years to turn research into products more quickly and to support the advanced development of biobased materials for defense supply chains, such as fuels, fire-resistant composites, polymers and resins, and protective materials. Through the Sustainable Aviation Fuel Grand Challenge, the Department of Energy (DOE) will work with the Department of Transportation and the U.S. Department of Agriculture (USDA) to leverage the estimated one billion tons of sustainable biomass and waste resources in the United States to provide domestic supply chains for fuels, chemicals, and materials.
  • Expand domestic biomanufacturing: DOD will invest $1 billion in bioindustrial domestic manufacturing infrastructure over five years to catalyze the establishment of the domestic bioindustrial manufacturing base that is accessible to U.S. innovators. According to the fact sheet, this support will provide incentives for private- and public-sector partners to expand manufacturing capacity for products important to both commercial and defense supply chains, such as critical chemicals.
  • Foster innovation across the United States: The National Science Foundation (NSF) recently announced a competition to fund Regional Innovation Engines that will support key areas of national interest and economic promise, including biotechnology and biomanufacturing topics such as manufacturing life-saving medicines, reducing waste, and mitigating climate change. In May 2022, USDA announced $32 million for wood innovation and community wood grants, leveraging an additional $93 million in partner funds to develop new wood products and enable effective use of U.S. forest resources. DOE also plans to announce new awards of approximately $178 million to advance innovative research efforts in biotechnology, bioproducts, and biomaterials. In addition, the U.S. Economic Development Administration’s $1 billion Build Back Better Regional Challenge will invest more than $200 million to strengthen America’s bioeconomy by advancing regional biotechnology and biomanufacturing programs.
  • Bring bioproducts to market: DOE will provide up to $100 million for research and development (R&D) for conversion of biomass to fuels and chemicals, including R&D for improved production and recycling of biobased plastics. DOE will also double efforts, adding an additional $60 million, to de-risk the scale-up of biotechnology and biomanufacturing that will lead to commercialization of biorefineries that produce renewable chemicals and fuels that significantly reduce greenhouse gas emissions from transportation, industry, and agriculture. The new $10 million Bioproduct Pilot Program will support scale-up activities and studies on the benefits of biobased products. Manufacturing USA institutes BioFabUSA and BioMADE (launched by DOD) and the National Institute for Innovation in Manufacturing Biopharmaceuticals (NIIMBL) (launched by the Department of Commerce (DOC)) will expand their industry partnerships to enable commercialization across regenerative medicine, industrial biomanufacturing, and biopharmaceuticals.
  • Train the next generation of biotechnologists: The National Institutes of Health (NIH) is expanding the Innovation Corps (I-Corps™), a biotech entrepreneurship bootcamp. NIIMBL will continue to offer a summer immersion program, the NIIMBL eXperience, in partnership with the National Society for Black Engineers, which connects underrepresented students with biopharmaceutical companies, and support pathways to careers in biotechnology. In March 2022, USDA announced $68 million through the Agriculture and Food Research Initiative to train the next generation of research and education professionals.
  • Drive regulatory innovation to increase access to products of biotechnology: The Food and Drug Administration (FDA) is spearheading efforts to support advanced manufacturing through regulatory science, technical guidance, and increased engagement with industry seeking to leverage these emerging technologies. For agricultural biotechnologies, USDA is building new regulatory processes to promote safe innovation in agriculture and alternative foods, allowing USDA to review more diverse products.
  • Advance measurements and standards for the bioeconomy: DOC plans to invest an additional $14 million next year at the National Institute of Standards and Technology for biotechnology research programs to develop measurement technologies, standards, and data for the U.S. bioeconomy.
  • Reduce risk through investing in biosecurity innovations: DOE’s National Nuclear Security Administration plans to initiate a new $20 million bioassurance program that will advance U.S. capabilities to anticipate, assess, detect, and mitigate biotechnology and biomanufacturing risks, and will integrate biosecurity into biotechnology development.
  • Facilitate data sharing to advance the bioeconomy: Through the Cancer Moonshot, NIH is expanding the Cancer Research Data Ecosystem, a national data infrastructure that encourages data sharing to support cancer care for individual patients and enables discovery of new treatments. USDA is working with NIH to ensure that data on persistent poverty can be integrated with cancer surveillance. NSF recently announced a competition for a new $20 million biosciences data center to increase our understanding of living systems at small scales, which will produce new biotechnology designs to make products in agriculture, medicine and health, and materials.

A recording of the White House summit is available online.

Article By Lynn L. Bergeson and Carla N. Hutton of Bergeson & Campbell, P.C.

For more environmental, energy, and resources legal news, click here to visit the National Law Review.

©2022 Bergeson & Campbell, P.C.

ARPA-E: Biden’s Proposed FY 2023 Budget Boosts Investment in Clean Energy Technologies

On March 28, 2022, the Biden-Harris Administration sent the President’s Budget for Fiscal Year (FY) 2023 to the United States Congress (“Congress”). The President’s proposed $5.8 trillion budget for FY 2023 allocates billions of dollars toward combating climate change and boosting clean energy development. Biden’s budget requests $48.2 billion for the Department of Energy (“DOE”), with $700 million of those funds allocated to the DOE’s Advanced Research Projects Agency-Energy program (“ARPA-E”).[1] With these increased funds, the Biden administration plans for ARPA-E to expand its scope beyond energy technology–focused projects to include climate adaptation and resilience innovations.[2]

What Is ARPA-E?

ARPA-E is a United States federal government agency under the purview of the Department of Energy that funds and promotes the research and development of advanced energy technologies. ARPA-E was recommended to Congress in the 2005 National Academies report Rising Above the Gathering Storm: Energizing and Employing America for a Bright Economic Future, which published recommendations for federal government actions to maintain and expand U.S. competitiveness.[3] In 2007, ARPA-E was officially created after Congress implemented a number of the report’s recommendations by enacting the America COMPETES Act.[4] The 2007 Act was superseded by the America COMPETES Reauthorization Act of 2010, which incorporated much of the original language of the 2007 Act but made some modifications to ARPA-E structure.[5] In 2009, ARPA-E officially commenced operations after receiving its first appropriated funds through the American Recovery and Reinvestment Act of 2009 —$400 million to fund the establishment of ARPA-E.[6]

ARPA-E’s mission is statutorily defined as overcoming “the long-term and high-risk technology barriers in the development of energy technologies.”[7] This involves the development of energy technologies that will achieve various goals, including the reduction of fossil fuel imports, the reduction of energy-related emissions, improvements in energy efficiency, and increased resilience and security of energy infrastructure.[8] The statute directs ARPA-E to pursue these objectives through particular means:

  1. Identifying and promoting revolutionary advances in fundamental and applied sciences;
  2. Translating scientific discoveries and cutting-edge inventions into technological innovations; and
  3. Accelerating transformational technological advances in areas industry is unlikely to undertake because of technical and financial uncertainty.[9]

The Impact of ARPA-E

Since 2009, ARPA-E has provided approximately $3 billion in R&D funding for over 1,294 potentially transformational energy technology projects.[10] Publishing annual reports to analyze and catalog its influence, the agency tracks commercial impact with key early indicators, including private-sector follow-on funding, new company formation, partnership with other government agencies, publications, inventions, and patents.[11]

Many ARPA-E project teams have continued to advance their technologies: 129 new companies have been formed, 285 licenses have been issued, 268 teams have partnered with another government agency, and 185 teams have together raised over $9.87 billion in private-sector follow-on funding.[12] In addition, ARPA-E projects fostered technological innovation and advanced scientific knowledge, as evidenced by the 5,497 peer-reviewed journal articles and 829 patents issued by the U.S. Patent and Trademark Office that sprung from the ARPA-E program.[13] ARPA-E recently announced that it is starting to count exits through public listings, mergers, and acquisitions. As of January 2022, ARPA-E has 20 exits with a total reported value of $21.6 billion.[14]

How Does Biden’s FY 2023 Budget Affect ARPA-E?

Biden has requested a 56% increase for ARPA-E, to $700 million.[15] The budget also proposes expansions of ARPA-E’s purview to more fully address innovation gaps around adaptation, mitigation, and resilience to the impacts of climate change.[16] This investment in research and development of high-potential and high-impact technologies aims to help remove technological barriers to advance energy and environmental missions.[17]

The request provides that ARPA-E shall also expand its scope “to invest in climate-related innovations necessary to achieve net zero climate-inducing emissions by 2050.”[18] Given the increasing bipartisan support for alternative energy funding and ARPA-E’s continuing and rising commercial impact, it is likely that ARPA-E’s funding and support of the research and development of early-stage energy technologies will continue to pave the way for the commercialization of advanced energy technologies.

Endnotes

  1. https://www.law360.com/articles/1478133/biden-budget-provides-billions-for-clean-energy
  2. https://www.energy.gov/articles/statement-energy-secretary-granholm-president-bidens-doe-fiscal-year-2023-budget
  3. https://doi.org/10.17226/24778
  4. Id. at 22
  5. Id.
  6. Id.
  7. 42 U.S.C. § 16538(b)
  8. 42 U.S.C. § 16538(c)(1)(A)
  9. 42 U.S.C. § 16538(c)(2)
  10. https://arpa-e.energy.gov/about/our-impact
  11. Id.
  12. Id.
  13. Id.
  14. Id.
  15. https://www.science.org/content/article/biden-s-2023-budget-request-science-aims-high-again
  16. https://www.whitehouse.gov/wp-content/uploads/2022/03/budget_fy2023.pdf
  17. Id.
  18. https://www.science.org/content/article/biden-s-2023-budget-request-science-aims-high-again

Article By Kaoru C. Suzuki of Mintz

For more environmental legal news, click here to visit the National Law Review.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Guarding the Grid: DOE Releases 100-Day Cybersecurity Pilot Program

The February 2021 hack into Oldsmar, Florida’s water treatment system is a frightening reminder that critical infrastructure systems can be vulnerable to cyberattacks and that cyberattacks can jeopardize health and safety. In this case, the hack may have spurred government action. On Tuesday, the Biden administration announced a 100-day plan “to advance technologies and systems that will provide cyber visibility, detection, and response capabilities for industrial control of electric utilities.”

In a coordinated effort among the Department of Energy (“DOE”), the Cybersecurity and Infrastructure Security Agency (“CISA”), and the electricity industry, the plan lays out four areas of focus for the next 100 days: (1) enhancement of mechanisms for detection, mitigation, and forensic activities; (2) “concrete milestones” for the industry to develop “situational awareness and response capabilities in critical industrial control systems (ICS) and operational technology networks (OT)”; (3) reinforcement of overall cybersecurity in critical infrastructure information technology networks; and (4) voluntary industry participation programs “to deploy technologies to increase the visibility of threats in ICS and OT systems.”

The plan’s success likely hinges on the government’s ability to develop sustainable, cooperative relationships with the relevant industries. “Public-private partnership is paramount to the Administration’s efforts,” said National Security Council (“NSC”) Spokesperson Emily Horne in response to Tuesday’s announcement, “because protecting our Nation’s critical infrastructure is a shared responsibility of government and the owners and operators of that infrastructure.” It appears that similar plans are being developed for additional critical infrastructure industries, including water, the chemical sector, and natural gas.

The previous administration responded to the escalating threat of cyberattacks from foreign adversaries[1] in part with Executive Order 13920, which declared a national emergency with regard to electric grid security and gave the Secretary of Energy the authority to prohibit certain transactions involving electric equipment potentially controlled by a foreign adversary. Relying on EO 13920, the DOE issued a Prohibition Order in December 2020 barring “Critical Defense Facilities” and any supporting facilities from purchasing or installing electricity generation equipment manufactured in China (“December Prohibition Order”).

On January 20, 2021, President Biden’s DOE issued a 90-day suspension of EO 13920 and the December Prohibition Order to allow the DOE and the Office of Management and Budget to consider methods of “protect[ing] against high-risk electric equipment transactions by foreign adversaries while providing additional certainty to the utility industry and the public.” Tuesday’s announcement from the DOE revoked the December Prohibition Order, effective immediately, but EO 13920 will remain in place until it expires on May 1, 2021.

The DOE has now opted to revoke the December Prohibition Order in an effort to “create a stable policy environment” while the DOE further develops its cybersecurity strategy for the electricity sector. However, utilities are still encouraged to “act in a way that minimizes the risk of installing electric equipment and programmable components that are subject to foreign adversaries’ ownership, control, or influence” while the DOE develops further recommendations.

To assist in cybersecurity strategy development, along with the DOE’s 100-day plan announcement, the DOE issued a Request for Information (“RFI”) “focused on preventing exploitation and attacks by foreign threats to the U.S. supply chain.” Interested parties are encouraged to submit input to the DOE by June 7, 2021 regarding the development of “a long-term strategy that includes technical assistance needs, supply chain risk management, procurement best practices, and risk mitigation criteria” as well as the “depth and breadth of a future prohibition authority.” Instructions for submitting comments can be found on the DOE’s website.

The DOE is still hammering out many details of the 100-day plan, and some details may never be released to the public – expansions of DOE’s Cyber Testing for Resilient Industrial Control Systems program, for example, will be classified to avoid oversharing with foreign intelligence. While the DOE works to develop its 100-day plan, utilities should evaluate cybersecurity infrastructure within their own systems. For example, utilities could make renewed efforts to take inventory of software and hardware used across any systems touching critical infrastructure, and ensure that all technology is secure and up to date. If defense, detection, and prevention systems do not meet the DOE’s suggested standards, a utility could consider implementing additional measures or strengthening current systems now.

Additionally, a utility could consider whether and how its organization might participate in an information-sharing program. Any thoughts regarding guardrails and disclosure limitations for such a program could be submitted as comments to the RFI. Also, a utility could consider how its current approach to communicating with internal and external stakeholders about cyber issues might impact participation in information sharing.

[1] The new 100-day plan comes not only in the wake of the Oldsmar water system hack but also just days after the administration announced sanctions against Russia for its role in the Solar Winds hack.

© 2021 Bracewell LLP

ARTICLE BY Philip J. Bezanson,  Claire E. Cahoon, Catherine P. McCarthy and Joshua C. Zive of  Bracewell LLP
For more articles on cybersecurity, visit the NLR Communications, Media & Internet section.

BRAG Biobased Products Blog

USDA Requests Input On HBIIP

On January 16, 2020, the U.S. Department of Agriculture (USDA) announced the issuance of a Request for Information (RFI) to assist with the creation of its new program called Higher Blends Infrastructure Incentive Program (HBIIP). A USDA Rural Development project, HBIIP is designed to expand the availability of domestic ethanol and biodiesel by incentivizing the expansion of sales of renewable fuels. Requesting feedback from all interested parties, this RFI solicits information on options for fuel ethanol and biodiesel infrastructure, innovation, products, technology, and data derived from all HBIIP processes and/or science that drive economic growth, promote health, and increase public benefit. With an approaching deadline for comment submissions by January 30, 2020, thus far, only three parties have submitted comments to USDA.

DOE Announces Launch Of The 2020 Tibbetts Awards Program

On January 21, 2020, the U.S. Department of Energy’s (DOE) Small Business Innovation Research (SBIR)/Small Business Technology Transfer (STTR) Programs Office announced the launch of the U.S. Small Business Administration’s (SBA) Tibbetts Awards. The Tibbetts Awards recognize companies, organizations, and individuals exemplifying the best of the best in the SBIR and STTR programs. Named after the founder of the SBIR program, Roland Tibbetts, the awards also help DOE to document the economic, technical, and societal benefits from SBIR/STTR funding. Nominees can consist of an individual, a company, or an organization that promotes the mission and goals of the SBIR/STTR programs. The mission and goals include:

  • Stimulation of technological innovation;
  • Work with small businesses to meet federal development needs;
  • Encouragement of diverse participation in innovation and entrepreneurship;
  • Increase of private sector commercialization of innovations derived research and development (R&D); and
  • Foster technology transfer through cooperative R&D between small businesses and research institutions.

Nominations are open through February 21, 2020, and can be submitted via this website.

EU Funds Project To Develop Biobased Ropes For Aquaculture

On January 17, 2020, the European Union (EU) announced a new innovative project called BIOGEARS that will be funded under the European Maritime and Fisheries Fund (EMFF). The project focuses on the development of biobased gear solutions for the creation of an eco-friendly offshore aquaculture sector using a multitrophic approach and new biobased value chains. With the aim to address the gap of biobased ropes for offshore aquaculture, which is currently manufactured with 100 percent non-recyclable plastics, BIOGEARS will create a biobased value chain under the EU Bioeconomy Strategy framework. The European Bioeconomy Strategy aims to accelerate the deployment of a sustainable and circular European bioeconomy to maximize its contribution towards the 2030 Agenda and its Sustainable Development Goals (SDG), as well as the Paris Agreement. With the goal of increasing aquaculture marketable products, BIOGEARS uses an Integrated Multi-Trophic Aquaculture (IMTA) approach by integrating seaweed with mussel production. The BIOGEARS project’s intention is to develop biobased ropes that are tough, durable, and fit-for-purpose while still able to biodegrade in shorter time and managed by local composting facilities.

As part of the project, all project partners will participate in a BLUE LAB to enhance cooperation and enable tracking of innovation of the new biobased materials developed. Project coordinator, Leire Arantzamendi, expressed her hopes of boosting more eco-friendly mussel and seaweed production stating that BIOGEARS “will generate three rope prototypes with a highly reduced carbon footprint along the value chain.” The project will focus on the Atlantic Basin.

©2020 Bergeson & Campbell, P.C.

For more developments in the Biotech sphere, see the National Law Review Biotech, Food & Drug law section.

U.S. Department of Energy Withdraws Expanded General Service Lamp Definition and Refuses to Impose Backstop Efficiency Standard

On September 5, 2019, the U.S. Department of Energy (DOE) published a final rule and proposed rule regarding general service lamps and general service incandescent lamps with far-reaching implications for lamp manufacturers and retailers. DOE is withdrawing the Obama Administration’s revised definitions of general service lamps and general service incandescent lamps, which would have imposed federal efficiency standards on a wide array of lamps. DOE also asserts in the new rule that it has not triggered a statutory “backstop” efficiency standard, which would have prohibited the sale of all non-compliant lamps beginning January 1, 2020. In a separate proposed rule, DOE has initially determined that energy conservation standards for general service incandescent lamps are not justified. DOE’s decisions, which stall what was to be an accelerated transition away from incandescents and toward LEDs, will likely prompt a legal challenge by consumer and environmental groups, as well as a number of states and other interested stakeholders.

Background

As defined by Congress in the Energy Policy and Conservation Act of 1975 (EPCA), general service incandescent lamps (GSILs) are any “standard incandescent or halogen type lamp . . . intended for general service applications,” that “has a medium screw base,” that fits within statutorily defined lumen and operating voltage ranges, and that is not one of twenty-two exempted lamp types. General service lamps (GSLs), in turn, are GSILs or “any other lamps that the Secretary [of Energy] determines are used to satisfy lighting applications traditionally served by general service incandescent lamps.” With the Energy Independence and Security Act of 2007 (EISA), Congress directed DOE to initiate rulemaking procedures to determine whether efficiency standards for GSLs should be amended to be “more stringent” than those that currently apply to fluorescent lamps and incandescent reflector lamps and whether existing exemptions for “certain incandescent lamps should be maintained or discontinued.”

The EISA sought to prod DOE into moving quickly to establish GSL/GSIL efficiency standards. First, Congress provided that if DOE “determines that the standards in effect for general service incandescent lamps should be amended, the Secretary shall publish a final rule not later than” January 1, 2017. Second, Congress included a “backstop” measure: if the Secretary of Energy “fails to complete a rulemaking” as directed, “the Secretary shall prohibit the sale of any general service lamp that does not meet a minimum efficacy standard of 45 lumens per watt,” effective January 1, 2020. The 45-lumen standard is generally understood to be unachievable for many incandescents, and would, therefore, hasten an ongoing transition to LED lamps. The backstop standard is also unusual to the extent that it would apply as a prohibition on sale, while most other appliance and equipment standards enforced by DOE apply to import and manufacture, rather than sale. As a result, the backstop not only impacts lamp manufacturers, but also the retailers who market such lamps.

The Obama Administration in January 2017 promulgated final rules revising the GSL and GSIL definitions to no longer exempt five categories of specialty incandescent lamps (rough service lamps, shatter-resistant lamps, 3-way incandescent lamps, high lumen incandescent lamps, and vibration service lamps), incandescent reflector lamps, or a variety of decorative lamps (T-Shape, B, BA, CA, F, G16-1/2, G25, G30, S, M-14, and candelabra base lamps). Effective January 1, 2020, these lamp categories would be subject to the relevant efficiency standards. The Obama Administration, however, did not initiate rulemaking with regard to the efficiency standards themselves because an appropriations rider prevented it from doing so.

The Trump Administration’s recent move withdraws these revised definitions to maintain the current efficiency regulatory scheme. Without deciding whether or not to amend the efficiency standards themselves, DOE’s new rule prevents those standards from applying to the specialty, decorative, and reflector lamps identified under the earlier rule. Some commenters argue that the new rule violates the EPCA’s “anti-backsliding” provision, while DOE asserts that the provision applies only to efficiency standards and not to the categories to which those standards apply.

Regulatory Uncertainty Regarding “Backstop” Standards

With the new rule, DOE concludes that the backstop will not take effect on January 1 and so will not prohibit the sale of GSLs not meeting the 45 lumens per watt standard. DOE agreed with electrical and lighting trade associations and manufacturers that the backstop would only be triggered if DOE had actually determined to maintain, amend, or eliminate GSL and GSIL efficiency standards but failed to do so, whereas to date, DOE had determined only to maintain the currently effective list of exemptions from the GSL and GSIL definitions. Additionally, DOE states that the backstop is not self-executing but rather requires the Secretary to take action to prohibit the sale of less efficient lamps. DOE asserts that this interpretation of the backstop provision prevents the Secretary of Energy from having to enforce a more stringent efficiency standard that he has not yet determined to be necessary or unnecessary.

A variety of environmental commenters, utility companies, and state attorneys general disagree with DOE’s reading and argue that, without further action, the backstop provision will indeed be triggered on January 1, 2020, because DOE has “fail[ed] to complete” the congressionally directed rulemaking to determine the need for amended efficiency standards. These commenters argue that the backstop is self-executing and requires no further DOE action to go into effect.

Preemption

In recent years, states have begun to enact their own lamp efficiency standards in line with the Obama Administration’s proposal and Congress’ “backstop” standard, in part out of concern that DOE might seek to delay or reverse the federal standard. More states are likely to do so in light of DOE’s latest move, creating the possibility that lamp manufacturers, importers, and retailers will have to navigate a patchwork of state regulations. Such state regulations will likely be subject to litigation, as DOE asserts that even though it has not yet promulgated an efficiency standard, state standards for covered products are preempted.

Next Steps

DOE’s withdrawal of the revised GSL/GSIL definitions or its interpretation of the backstop provision has not yet prompted a legal challenge. Some environmental advocates, however, have raised the possibility of bringing suit to force implementation of the lamp efficiency standards.

 

© 2019 Beveridge & Diamond PC

ARTICLE BY Daniel A. Eisenberg and Jack Zietman of Beveridge & Diamond PC.

Department of Education Unveils Proposed Title IX Regulations

On Friday, November 16, 2018, the Department of Education (DOE) released proposed Title IX regulations dictating the process by which colleges and universities must handle allegations of sexual misconduct.

Institutions of higher education have been in limbo since September 2017 when the DOE rescinded Obama-era guidance that called for hard-hitting enforcement of Title IX and issued interim guidance as a placeholder until they could engage in the formal rulemaking process. Today’s proposed regulations, if enacted, will take the place of the DOE’s September 2017 interim guidance.  According to the DOE, the new regulations would substantially decrease the number of investigations into complaints of sexual misconduct and save institutions millions over the next decade.

Many of the new regulations deviate significantly from prior guidance. The most significant changes increase the discretion given to universities in crafting procedures for adjudicating Title IX claims within their institutions.  The proposed guidance allows universities to choose the applicable evidentiary standard (either “preponderance of the evidence” or “clear and convincing evidence”) in determining responsibility, as long as it is consistent with the standard used in other student disciplinary matters.  The new regulations also permit the use of informal resolution processes to resolve sexual misconduct allegations if the parties agree.

Other notable provisions of the proposed regulations include the following:

  • The definition of “sexual harassment” has been more narrowly defined as “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.”
  • For purposes of administrative enforcement, universities would be held to a “deliberately indifferent” standard. In other words, to avoid liability, a university with “actual knowledge” of sexual harassment need only respond in a manner that is not “deliberately indifferent.” An institution would be found deliberately indifferent “only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.”
  • “Actual knowledge” is defined in the proposed regulations as notice of sexual harassment or allegations of sexual harassment provided to an official of the institution “who has the authority to institute corrective measures on behalf of the [institution].” In contrast to prior guidance, this definition excludes most professors, administrators, and staff.
  • Under the proposed regulations, universities would no longer be allowed to investigate allegations of sexual harassment that occurred off-campus.
  • The proposed regulations would require universities to provide written notice to a respondent upon receipt of a complaint, which would include a statement that the responding party is presumed to be not responsible for the alleged conduct and that a determination of responsibility will be made at the end of the grievance process.
  • Live fact-finding hearings would be mandatory for universities under the new regulations. Investigators would also be precluded from serving as factfinders.  This would eliminate the use of the single investigator model currently used by many universities.
  • Universities must permit cross-examination of any party or witness by the opposing party’s advisor, but not by the party him/herself.  If a party or witness refuses to submit to cross-examination, that person’s testimony could not be relied on by the fact-finder. The party’s choice of advisor could not be limited by the institution of higher education.
  • Religious institutions of higher education would no longer be required to seek assurances of exemption from Title IX regulations in advance of a DOE investigation. Under the new regulations, a religious institution of higher education could invoke an exemption to Title IX’s requirements at any time during the investigation.

The new regulations address other topics such as constitutional issues and the intersection between Title IX and Title VII of the Civil Rights Act. They also clarify that, just as an institution’s treatment of a complaining party may constitute discrimination based on sex, an institution’s treatment of the responding party may also constitute discrimination based on sex. Institutions of higher education must continue to comply with all applicable state laws regarding sexual misconduct and sexual misconduct investigations.

Now that the proposed regulations have been published, the public has sixty days to submit comments before the regulations go into effect. The final regulations, however, are likely to closely mirror what has been proposed today, and colleges and universities should act immediately to carefully review their sexual misconduct policies and practices for compliance.

 

Jackson Lewis P.C. © 2018
This post was written by Susan D. Friedfel, Monica H. Khetarpal Marla N. Presley Crystal L. Tyler and Hobart J. Webster.

DOE Announces $8.8 Million In Funding For Algae Technology Innovation Projects

On September 8, 2017, the U.S. Department of Energy (DOE) selected an additional four Productivity Enhanced Algae and Toolkits (PEAK) projects to receive up to $8.8 million.  The projects aim to develop high-impact tools and techniques that will increase the productivity of algae organisms to reduce the costs of producing algal biofuels and bioproducts.  In total, DOE has awarded over $16 million in funding to the initiative.

The project winners include:

  • Colorado School of Mines, in partnership with Global Algae Innovations, Pacific Northwest National Laboratory, and Colorado State University, which will use advanced directed evolution approaches in combination with high-performance, custom-built, solar simulation bioreactors to improve the productivity of robust wild algal strains;
  • University of California, San Diego, which will work with Triton Health and Nutrition, Algenesis Materials, and Global Algae Innovations on the development of genetic tools, high-throughput screening methods, and breeding strategies for green algae and cyanobacteria, targeting robust production strains;
  • University of Toledo, in partnership with Montana State University and the University of North Carolina, which will cultivate microalgae in high-salinity and high-alkalinity media to achieve productivities without needing to add concentrated carbon dioxide, and deliver molecular toolkits, including metabolic modeling combined with targeted genome editing; and
  • Lawrence Livermore National Laboratory, which will ecologically engineer algae to encourage growth of bacteria that efficiently remineralize dissolved organic matter to improve carbon dioxide uptake and simultaneously remove excess oxygen.
This post was written by  Kathleen M. Roberts of Bergeson & Campbell, P.C. ©2017
For more Environmental & Energy legal analysis go to The National Law Review

DOE Releases $7 Million Funding Opportunity Announcment For Co-Optimization Of Fuels And Engines Initiative

Funding Opportunity Announcement, FOAOn August 1, 2016, DOE released a Funding Opportunity Announcement (FOA) for $7 million to research fuel and engine co-optimization technologies. Funding will be provided through the Co-Optimization of Fuels and Engines (Co-Optima) initiative, a collaboration between DOE’s Bioenergy Technologies Office (BETO) and Vehicle Technologies Office (VTO), bringing together national laboratories and industry to conduct tandem fuel and engine research, development, and deployment assessments. This initiative works to improve near-term conventional spark-ignition engine efficiency and enable full operability of advanced compression ignition engines. Research cycles include identifying fuel candidates, understanding their characteristics, and determining market transformation requirements. This FOA is restricted to U.S. Institutions of Higher Education and nonprofit research institutions operating under U.S. Institutions of Higher Education. Proposals should address one or more of the following sub-topics:

  • Fuel characterization and fuel property prediction;
  • Kinetic measurement and mechanism development;
  • Emissions and environmental impact analysis;
  • Impact of fuel chemistry and fuel properties on particulate emissions;
  • Small-volume, high-throughput fuel testing; and
  • Additional barriers.

Concept papers are due by August 15, 2016, at 5:00 p.m. (EDT), with full applications due on September 18, 2016, at 5:00 p.m. (EDT).

ARTICLE BY Kathleen M. Roberts of Bergeson & Campbell, P.C.

©2016 Bergeson & Campbell, P.C.