Agricultural Research Service
Farm Service Agency
Forest Service
Census Bureau
Economic Development Administration
International Trade Administration
National Oceanic and Atmospheric Administration
Defense Logistics Agency
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Coast Guard
Fish and Wildlife Service
Employment and Training Administration
Mine Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
Maritime Administration
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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U.S. Nuclear Regulatory Commission.
Final rule; correction.
This document corrects a final rulemaking published on June 6, 2007 (72 FR 31401), that amends the licensing, inspection, and annual fees charged to its applicants and licensees. This notice is necessary to correct an erroneous amendatory instruction.
Renu Suri, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone 301-415-0161, e-mail
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
This amendment amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective July 26, 2007. The compliance date for each SIAP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of July 26, 2007.
Availability of matter incorporated by reference in the amendment is as follows:
1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Ave., SW., Washington, DC 20591;
2. The FAA Regional Office of the region in which affected airport is located; or
3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or
2. The FAA Regional Office of the region in which the affected airport is located.
Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.
This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above.
The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.
The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.
Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air).
49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, LDA w/GS, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, MLS, TLS, GLS, WAAS PA, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; § 97.35 COPTER SIAPs, § 97.37 Takeoff Minima and Obstacle Departure Procedures. Identified as follows:
Food and Drug Administration, HHS.
Final rule.
The Minor Use and Minor Species Animal Health Act of 2004 (MUMS act) amended the Federal Food, Drug, and Cosmetic Act (the act) to establish new regulatory procedures that provide incentives intended to make more drugs legally available to veterinarians and animal owners for the treatment of minor animal species and uncommon diseases in major animal species. At this time, FDA is issuing final regulations to implement the act. These regulations describe the procedures for designating a new animal drug as a minor use or minor species drug. Such designation establishes eligibility for the incentives provided by the MUMS act.
This rule is effective October 9, 2007.
Bernadette Dunham, Center for Veterinary Medicine (HFV-50), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-276-9090, e-mail:
In enacting the MUMS act (Public Law 108-282), Congress sought to encourage the development of animal drugs that are currently unavailable to minor species (species other than cattle, horses, swine, chickens, turkeys, dogs, and cats) in the United States or to major species afflicted with uncommon diseases or conditions (minor uses). Congress recognized that the markets for drugs intended to treat these species, diseases, or conditions are often so small that there are insufficient economic incentives to motivate sponsors to develop data to support approvals. Further, Congress recognized that some minor species populations are too small or their management systems too diverse to make it practical to conduct traditional studies to demonstrate safety and effectiveness of these animal drugs. As a result of these limitations, sponsors have generally not been willing or able to collect data to
In the
In response to public comment, or in two places to provide added clarity, FDA has made the following changes to the proposed rule:
§ 516.3
§ 516.21
§ 516.28
§ 516.31
The agency received comments from 9 organizations or individuals on the September 27, 2005, proposal. Comments were received from a trade organization representing new animal drug manufacturers, a trade organization representing pet product manufacturers, an animal feed manufacturer, a professional association representing veterinarians, an association representing zoos and aquariums, a consumer advocacy organization, and 3 consumers.
(Comment 1) In § 516.3(b) one comment stated that for added clarity and consistency we should add the words “on an annualized basis” to the end of the definition for infrequently.
(Response) We agree. We explained in the preamble to the proposed rule why we thought that it was appropriate to annualize the data on the number of animals in which the indication occurs (see 70 FR at 56395 to 56396). Therefore, we have revised the codified section accordingly.
(Comment 2) Two comments stated that the requirement for a specific product development plan as part of a request for MUMS-drug designation in § 516.20(b)(6) is unnecessarily arduous and premature in the designation process. Commentors also stated that frivolous requests for designation should not be burdensome to the agency; and, therefore, that the requirement for a specific product development plan is unnecessary.
(Response) We do not agree that the requirement for submission of a description of the product development plan is arduous or premature. Also, the basis for this requirement is not primarily to reduce burden on the agency due to frivolous requests for designation. The primary reasons for requiring a specific product development plan as part of a request for MUMS-drug designation are as follows. As we explained in the preamble to the proposed rule (70 FR 56394 at 56399), for new animal drugs, unlike for human orphan drugs, each designation must be unique with respect to drug, dosage form, and intended use. In this way, the MUMS act, which was enacted to address the critical shortage of approved animal drugs for minor species/minor uses, facilitates the development of a broad range of animal drugs in part by discouraging multiple sponsors from pursuing identical uses. Because each MUMS designation is unique, it is important to the effective implementation of section 573 of the act that initial designation of a drug be based on evidence that requesting sponsors clearly understand their responsibilities in terms of drug research and development and are prepared to accept those responsibilities.
Submission of a description of the product development plan helps to ensure that timely development of the drug, consistent with the requirement of section 573(a)(2)(B) to actively pursue approval with due diligence, is feasible. Designation of a drug that could not feasibly be approved under the sponsor's current drug development plan would inappropriately delay development and marketing of a needed drug by the same or a different sponsor and undermine the goals of the MUMS act. Submitting the description of the product development plan also facilitates meaningful communication between the sponsor and the agency to help ensure that safety and effectiveness testing, which for designated drugs may be supported by grants or contracts under section 573(b) of the act, is efficiently designed and conducted. Efficient and effective use of sponsor and agency resources, which is enabled by this and other requirements of final § 516.20, is critically important to alleviating the shortage of new animal drugs addressed by the MUMS act.
(Comment 3) Two comments stated that the documentation requirements for minor use status in § 516.21 are too burdensome. They believe there is a lack of balance between the documentation required for a minor use designation versus a minor species designation. More specifically, both commentors believe that § 516.21(b) is asking sponsors to prove a negative concerning the lack of medical justification and one of these commentors stated that the financial information requested in § 516.21(c) is, for the most part, confidential. As an alternative approach, these two commentors submitted similar two-part working definitions for minor use that could be used in place of the proposed provisions for § 516.21 as follows:
Either:
1. The drug is not currently approved, it is unlikely the “minor use” designation for the drug will be applicable to a majority of the major species population, and the need for the drug for a specific disease or condition has been clearly identified by animal health professionals or an animal industry. One commentor also added a fourth provision that if the drug has the same active ingredient as other approved drugs, the environmental safety assessment of the combined active ingredient of all such drugs is shown to be adequate.
Or;
2. The annualized commercial return on investment for the product is not reasonably expected to exceed the development and maintenance costs of the product.
(Response) We do not agree that the requirements for documentation of minor use status in § 516.21 are too burdensome. FDA agrees that these implementing regulations should not be overly burdensome to drug sponsors in order to achieve the objectives set forth in the MUMS Act. However, it is unavoidable that a certain amount of additional information will be required in a request for minor use designation that will not be required in a request for minor species designation. Section 516.21 describes this additional information and comprises three paragraphs.
Section 516.21(a) asks for an estimate of the total number of animals to which a drug could potentially be administered on an annual basis. Whether compared to a predetermined small number of animals or as part of a case-by-case determination, this number will be essential to any request for minor use designation. Simply put, this estimated number of animals serves as documentation that the intended use of a proposed MUMS drug is limited to a “small number of animals”, as required by the MUMS Act.
Section 516.21(b) describes how to define a minor use population if the proposed MUMS drug is under development for only a subset of the estimated total number of animals to which the drug could potentially be administered on an annual basis. In this situation, a sponsor may utilize the provisions of this paragraph to argue that administration of a proposed MUMS drug is only justified for a small subset of a larger major species population potentially affected by a particular disease or condition and that administration to the remaining larger affected population is medically inappropriate. If the number of animals in this medically justified subset is a small number of animals, then such a use is a minor use.
The provisions in this paragraph were apparently misinterpreted by two of the commentors. Its purpose is not to require medical justification to the effect that a drug approved for disease A could not be used for disease B or C or D. Its purpose is to allow drug sponsors to restrict the intended use of a drug to a subset of the animals affected by disease A, thereby reducing their estimate of the total number of animals eligible to be treated as required in § 516.21(a), by providing medical justification that only a subset of animals afflicted with disease A are amenable to treatment. For improved clarity, we have revised the language of § 516.21(b).
Section 516.21(c) requires drug sponsors to provide economic information relevant to why their MUMS drug should be considered a minor use drug. In the preamble to the proposed MUMS designation rule (70 FR 56394) we cited the Senate report (S. Rept. 108-226) concerning the bill before the Senate (S. 741), which discusses the minor use definition and how minor use should be determined: “This definition incorporates the existing definition in the Code of Federal Regulations (21 CFR 514.1(d)(1)) with a further limitation to “small numbers” to assure that such intended uses will not be extended to a wider use. The Secretary is expected to further clarify this definition in regulations implementing this section. FDA is given broad latitude in determining what constitutes a minor use in a major species. The Congress intends for FDA to make the determination of minor use by evaluating, in the context of the drug development process, whether the incidence of the disease or condition occurs so infrequently that the sponsor of a drug intended for such use has no reasonable expectation of its sales generating sufficient revenues to offset the costs of development. The Congress does not intend for FDA to establish a test of commercial value, but rather directs FDA to determine whether the expected low use of a drug would discourage its development.” (S. Rept. 108-226 at 12-13.)
In evaluating whether the incidence of the disease or condition is so infrequent that the sales are not reasonably expected to offset development costs, we might take two different approaches. First, we could consider each request on a case-by-case basis utilizing the information provided in § 516.21(c). Alternatively, we could establish, by regulation based on industry-wide economic data, a specific small number of animals for each of the seven major species to be used as a yardstick against which we would measure the estimated total number of animals to which a drug could potentially be administered on an annual basis, as documented under § 516.21(a). If such “small number” for each major species is established by regulation at some point in the future, there would no longer be a need for requiring the information requested in § 516.21(c).
(Comment 4) With respect to § 516.24, two comments stated that FDA should respond to requests for designation within 60 days from the time the request was submitted.
(Response) FDA agrees that timely processing of requests for designation is important. However, because of limitations on agency resources, the agency does not believe that it is feasible to commit to responding to all requests for designation within 60 days. We intend to issue guidance in the future to describe target timelines for the designation process consistent with current resources.
(Comment 5) Two comments stated that FDA should update the publicly available list of MUMS-designated drugs within 60 days of granting a new MUMS designation.
(Response) We agree that timely updating of the list of MUMS-designated drugs is appropriate. However, the agency does not believe it is feasible to commit to definite timelines in these regulations because of uncertain resource limitations. As discussed above, we intend to describe target timelines for our actions related to the designation process in future guidance.
(Comment 6) Two comments stated that a 1-year advance notification for discontinuing the manufacture of a drug, as specified in § 516.29(b), is excessive and a 30-60 day timeframe would be more appropriate.
(Response) A 1-year advance notification for discontinuing the manufacture of a MUMS-designated drug is required by section 573(a)(2)(C) of the act and, therefore, is not subject to alteration by regulation.
(Comment 7) One commentor requested clarification on the hypothetical situation in which FDA has withdrawn designation status after notification by a sponsor (sponsor A) of its intent to discontinue production, but the drug is still being sold, as permitted in accordance with the lengthy pre-notification required by the statute. The commentor asked if another sponsor (sponsor B) could potentially achieve designation and conditional approval, and thus block any further sale by sponsor A, even if sponsor A still has time left on their notification and still has drug to be sold.
(Response) In this situation, FDA has only withdrawn sponsor A's designation and, therefore, its exclusivity. The approval or conditional approval remains intact. Therefore, while approval or conditional approval may be possible for sponsor B, designation cannot be granted for sponsor B because the MUMS Act only allows designation when a specific drug, dosage form, and intended use is not already approved or conditionally approved.
(Comment 8) In § 516.31(a)(2) one comment stated that the words § or proposes to withdraw” should be removed because this appears to negate the right of the sponsor to due process.
(Response) We agree that the exclusivity of an approved or conditionally approved MUMS-designated drug should not be abrogated by a proposal to withdraw the approval or conditional approval. We have revised the codified section accordingly.
(Comment 9) One comment stated that oral dosage form new animal drugs and new animal drugs for use in animal feeds should not be considered two different dosage forms for the purpose of MUMS designation. It argues, for example, that if an oral dosage form new animal drug is designated and approved subsequent to the designation and approval of a medicated feed containing the same drug and for the same intended use, it will negatively impact the business case and success of the medicated feed.
(Response) The agency believes that this same argument could apply to any drug that is available in more than one dosage form. For example, an approved injectable product could be negatively impacted by approval of an oral form of the drug.
As stated in the preamble to the proposed rule (70 FR 56394 at 56398), current federal regulations recognize the following dosage forms: Oral dosage forms (21 CFR part 520), implantation or injectable dosage forms (21 CFR part 522), ophthalmic and topical dosage forms (21 CFR part 524), intramammary dosage forms (21 CFR part 526), miscellaneous dosage forms (21 CFR part 529), and drugs in animal feeds (21 CFR part 558). The preamble also notes that medicated feeds are subject to different limitations from those for other oral dosage forms (70 FR 56394 at 56398), which also supports treating medicated feeds as a different dosage form for the purpose of MUMS designation.
In addition, the markets for medicated feeds and other oral dosage forms may be different. An oral dosage in the form of a drench or a water treatment may be appropriate in different settings than those requiring treatment through the use of medicated feeds. For example, pheasants in a hatchery setting can be treated with medicated water while those in large outdoor pens are more efficiently treated with medicated feeds. Because the populations served by medicated feeds and by other oral dosage forms can be different enough to represent separate markets and because, as already noted, the same potential overlap can occur between any two dosage forms, we believe it is appropriate to treat medicated feeds and other oral dosage forms as different for MUMS designation purposes.
(Comment 10) In the definition section under § 516.13, under
(Response) Given that requirements for approval may differ significantly for these three categories, they are considered to be different for purposes of designation.
(Comment 11) One comment disagreed with the third principle of sameness discussed in the preamble to the proposed rule, under which an intended use for a disease or condition caused by one organism is considered different from an intended use for the same disease or condition caused by a different organism. The comment perceived this approach to determining sameness to be a disincentive to seeking MUMS designation.
(Response) This comment raises the general issue of how different intended uses must be to be considered separate intended uses. If the uses are clearly separable and have different data requirements for approval, we believe it is appropriate to permit separate MUMS-drug designations. Intended uses for diseases or conditions caused by different organisms are clearly separable and would need to be supported by different data for approval; therefore, we believe that allowing separate MUMS-drug designations for drugs for such uses would be appropriate.
(Comment 12) One comment was concerned that many zoo animals may be included in the broad major species categories. It stated that FDA should specifically identify the species and subspecies that are considered “major species” with the recognition that some species/subspecies may be appropriate only for public display or exhibition, and that these non-domestic animals should be identified separately for appropriate drug approval under MUMS regulations.
(Response) Zoo species will not be lumped with major species for the purposes of drug approval. The major species are the domesticated species only, not including hybrids or closely-related wild species. Whether an animal belongs to a major or minor species is not affected by its location or use; it is strictly a matter of the species.
Currently, FDA considers the major species to be:
All other species are considered to be minor. Therefore, there should be no cause for concern regarding the status of zoo animals in terms of new animal drug approval. The agency intends to clarify this issue in guidance to be published in the future.
(Comment 13) One comment stated that a manufacturer of a drug that is already approved in countries with substantially the same approval requirements as the United States does not need incentives to develop data and should not be given a MUMS designation.
(Response) The MUMS incentives exist to encourage pharmaceutical companies to pursue approval of new animal drugs for minor uses and minor species. Even in cases where foreign approvals exist, sponsors generally need to provide considerable new data to meet the requirements for FDA approval. Therefore, the MUMS incentives remain appropriate when a drug has been approved in a foreign country.
(Comment 14) One comment stated that in order to monitor whether the MUMS rule is fulfilling its intended goal to increase the availability of drugs for minor uses, FDA should require annual reports on quantities sold of each designated and conditionally approved drug.
(Response) The agency agrees that knowledge of the quantity of designated drugs distributed on an annual basis would be useful information in terms of assessing the success of the MUMS act. The MUMS act itself requires the annual submission of information regarding quantities of conditionally approved products distributed (see 21 U.S.C. 360ccc(d)(2)(B)(ii)). All fully approved new animal drugs are required by regulation (21 CFR 514.80 (b)(4)(i)) to report the quantity of product distributed. The Office of Minor Use and Minor Species Animal Drug Development will have direct access to this information.
(Comment 15) Three comments stated that companion animal “small numbers” should be considered separately from food animal “small
(Response) The agency agrees that the “small numbers” for companion animals need to be considered separately from the “small numbers” for food animals. FDA also agrees that it is appropriate to consider the relationship between the number of animals of a minor species permitted to be designated under the MUMS act and the number of animals of a major species permitted to be designated in establishing “small numbers” of animals under the definition of minor use in the statute. However, the agency views the primary basis for establishing “small numbers” to be Congress' expression of intent in the report language accompanying the act that the agency further define minor use in a major species “by evaluating, in the context of the drug development process, whether the incidence of the disease or condition occurs so infrequently that the sponsor of a drug intended for such use has no reasonable expectation of its sales generating sufficient revenues to offset the cost of development” (S. Rept. 108-226 at 12-13).
Since Congress provided incentives in the MUMS act to stimulate drug development, the agency interprets the previous statement to mean that FDA should determine for each major species what the “small number of animals” eligible to be treated on an annual basis would need to be in order to represent a drug market value that (relative to drug development costs) would be considerably less likely to be pursued in the absence of the MUMS incentives, than in their presence.
(Comment 16) Two comments stated that “small numbers” should be based on epidemiological data and not on a percentage of the total major species population. Commentors stated that since such epidemiological data are not yet available, FDA should make minor use designations on a case-by-case basis rather than setting hard numbers.
(Response) In the preamble to the proposed rule for MUMS designation (70 FR 56394), the agency already rejected the idea of establishing “small numbers” based on a percentage of the major species population as overly simplistic. There the agency explained that using the human orphan drug prevalence limit of 200,000 cases (0.1% of the U.S. population in 1983) did not seem helpful for calculating “small numbers” in cattle, swine, chickens, and turkeys because the populations involved, the manner of drug use in those populations, and the drug development processes for those species are too dissimilar to the human drug scenario (70 FR 56394 at 56396). Further analysis made clear that these factors were not sufficiently comparable for this approach to be viable, even for dogs, cats, and horses (70 FR 56394 at 56396). On the other hand, as already noted, Congress directed the agency to define “minor use” and, by extension, “small numbers,” on the basis of determining whether a population of animals of a major species needing drug treatment would provide sufficient drug market value to offset the cost of drug development given the incentives provided by the MUMS act.
The use of epidemiological data comes into play at the point that the sponsor and the agency are trying to establish the population of animals eligible to be treated with a particular drug for a particular intended use. Such data need to be shared with the agency whether the determination of minor use is being made on a case-by-case basis or with respect to an established small number of animals.
(Comment 17) One comment stated that FDA should consider the potential of a drug to be used extralabel when making a minor use designation.
(Response) The agency understands the expressed concern regarding extra-label drug use, but extra-label drug use is an issue that clearly transcends the designation process. Extra-label use of approved new animal drugs is statutorily permissible under specified circumstances. (Extra-label use is not permitted for either conditionally approved or indexed drugs because such drugs have not met the full approval requirements of the statute.) There is no general prohibition regarding the extra-label use in minor species of products approved for use in major species or vice versa.
Therefore, under designation, a product designated and approved for a minor species can be legally used in an extra-label manner in a major species (subject to established statutory and regulatory conditions). The same is true for a product designated for a minor use in a major species. It is difficult enough to determine whether the population of animals associated with the disease or condition for which a drug is labeled for use fails to provide sufficient market value to offset the cost of drug development (or falls above or below an established small number of animals). It would be impossible to determine the population of all animals subject to all potential extra-label uses of a drug. In fact, it must be assumed that this population (which may include all potential uses of a drug in all animal species) would very often exceed a small number of animals. Therefore, consideration of potential extra-label use in the designation process would have the effect of essentially negating the designation provision of the statute and this would clearly be contrary to the intent of the legislation.
(Comment 18) One comment stated that long term use of a drug, even in a small number of animals, would constitute a much larger market than for shorter term use and that FDA should not consider animal numbers as “small” if food animals are to receive drugs for a long duration, perhaps for a period longer than 21 days, consistent with FDA's Guidance for Industry (GFI) #152.
(Response) As noted previously, the agency acknowledges the concern regarding the use of drugs in food animals and accepts that the concept of “small numbers” of animals included in the statutory definition of minor use is based, in part, on this concern. The agency will address the issue of establishing “small numbers” of animals for each major species in future rulemaking. However, a full assessment of the relative risks of individual drugs or drug uses is a matter that must be left to the comprehensive analysis associated with the review of individual new animal drug applications consistent with GFI #152 and other applicable policies and regulatory requirements.
FDA's authority for issuing this final rule is provided by the MUMS act (21 U.S.C. 360ccc
FDA has examined the impacts of the final rule under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic,
FDA finds that the final rule does not constitute an economically significant regulatory action as defined in section 3(f)(1) of Executive Order 12866. We believe that the annual impacts will not exceed $100 million since by its very nature the rule applies to animal drugs that have a very small market. Similarly, the administrative costs are unlikely to have a significant economic impact on a substantial number of small entities.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current (2005) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.
FDA received nine comments to the proposed rule. Only two of these comments contained any remarks that addressed the impacts analysis of the proposed rule. Both stated that the requirement for a specific development plan before a designation is granted would be too burdensome. Neither of the comments provided any estimates on the size of the burden that would be imposed. FDA responded previously in this preamble to the burden issue in these comments. Further, FDA believes that the development of the plan would not be overly burdensome because, in most cases, it would be the same plan that a sponsor would establish with FDA under the regular animal drug review process, and because its cost, estimated at less than one thousand dollars each, would represent less than 0.1% of revenues of even the smallest establishments. Additionally, the MUMS act requires that FDA measure the diligence with which sponsors work towards final approval of a MUMS-designated drug, and a drug development plan is necessary for FDA to measure a sponsor's progress towards this goal. FDA has therefore not changed this provision in the final rule.
None of the changes made to the final rule would affect the expected impacts of the rule on the animal drug producers. Accordingly, lacking any other comments to its analysis of the proposed rule, FDA has reviewed its impacts analysis published in the proposed rule and retains it here for the final rule.
The intention of this rule, and therefore its benefit, is the creation of a system that would stimulate the development and marketing of animal drugs for rare diseases in major species and diseases found in minor species in the United States, which would otherwise not be economically viable under current market conditions. The countervailing cost, or risk of this final rule, would be the possibility of limited competition for approved drugs for a minor use drug indication or in a minor species drug due to the granting of the 7-year exclusive marketing right. In addition to the benefit-risk tradeoff mentioned previously, there would be additional administrative costs for those companies seeking the MUMS designation for a new animal drug application (NADA). We estimate that the designation request would require about 16 hours of preparation by a regulatory affairs official. At a benefit adjusted wage rate of almost $48 per hour for these employees, each request would have administrative costs of about $760.
The agency is also requiring in § 516.22 that foreign sponsors requesting designation do so through a permanent resident U.S. agent. This is consistent with the current requirements of 21 CFR 514.1(a) since requests for MUMS designation will ultimately be submitted to an NADA file. The agency does not expect to receive many requests for designation from foreign sponsors, and estimates that number at less than one per year. As such, the agency has not quantified the cost of this provision but believes it would be negligible.
Amendments made to existing designations are expected to occur infrequently. We estimate that three amendments will be filed annually, requiring about two hours of preparation. At the same wage rate, this would cost an additional $300. Sponsors may also transfer sponsorship of MUMS-designated drug or terminate the designation. We estimate that these activities would result in only 3 additional hours of administrative costs annually, totaling to $150. The preparation of the annual report that would be required for each MUMS-designated drug is estimated to take about 2 hours. In the first year, this would result in another 150 hours of administrative costs, or about $7,200 in total. FDA notifications to sponsors concerning insufficient quantities of approved MUMS-designated drugs are expected to be rare, about once each year. Sponsor responses are estimated to take 3 hours, at a cost of $150.
Assuming a sponsor chooses to seek the MUMS designation for its NADA, total administrative costs for this rule across all sponsors are estimated at about $65,000 in the first year, and to increase each year thereafter due to the annual reporting requirements.
The Regulatory Flexibility Act requires agencies to prepare a regulatory flexibility analysis if a rule is expected to have a significant economic impact on a substantial number of small entities. Although we believe it is unlikely that significant economic impacts would occur, the following along with other sections of this preamble constitute the regulatory flexibility analysis.
One requirement of the Regulatory Flexibility Act is a succinct statement of any objectives of the rule. As stated previously in this analysis, with this rule the agency intends to create a system, provided for by statute, that would stimulate the development and marketing of animal drugs for rare diseases in major species and diseases found in minor species in the United States, which would otherwise not be economically viable under current market conditions.
The Regulatory Flexibility Act also requires a description of the small entities that would be affected by the rule, and an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) defines the criteria for small businesses using the North American Industrial Classification System (NAICS). For pharmaceutical preparation manufacturers (NAICS number 325412), SBA defines small businesses as those with less than 750 employees. Census data shows that 723 companies with 901
All of the costs described previously would be incurred by any small business that applies for MUMS designation. These include costs for request preparation, amendments to designations, preparing annual reports and responding to FDA notifications of insufficient quantities. The firms submitting requests for MUMS designation are expected to already have the necessary administrative personnel with the skills required to prepare the requests and fulfill reporting requirements as identified previously.
The Regulatory Flexibility Act requires that the agency consider any alternatives to a rule that would accomplish the objective while minimizing significant impacts of the rule. As stated previously, the agency believes that the final rule, due to the relatively small costs, would not be likely to impose significant economic impacts on small businesses. As such, the agency believes the final rule achieves the objective with minimal costs to industry.
The statute that creates this system, Public Law 108-282, does not provide the agency a great deal of flexibility in the implementing regulations, such as in determining the length of the exclusivity period or granting an exclusivity to more than one animal drug without regard to sameness of drug, dosage form and intended use. The agency did consider, however, applying an explicit threshold number of animals of each major species as the upper bound of disease incidence in the definition of “minor use” of animal drugs. The agency determined that the data needed to develop these estimates would not be available in time for the publication date of the final rule as mandated by statute. The agency intends in the future to propose a separate rule defining the threshold numbers of animals of each major species. The agency will continue to consider the acceptability of each request for designation as a minor use animal drug on a case-by-case basis as provided for in the Senate report concerning the legislation, until it issues any final rule based on such a proposal.
In the
In response to these
The information collection provisions of this final rule have been submitted to OMB for review. Prior to the effective date of this final rule, FDA will publish notice in the
Under the new part 516, § 516.20 provides requirements on the content and format of a request for MUMS-drug designation, § 516.26 provides requirements for amending MUMS-drug designation, provisions for change in sponsorship of MUMS-drug designation can be found under § 516.27, under § 516.29 are provisions for termination of MUMS-drug designation, under § 516.30 are requirements for annual reports from sponsor(s) of MUMS designated drugs, and under § 516.36 are provisions for insufficient quantities of MUMS-designated drugs.
FDA estimates the burden for this collection of information as follows:
We have carefully considered the potential environmental impacts of this final rule and determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment, nor an environmental impact statement is required.
FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule does not contain policies that have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the agency has concluded that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.
Confidential business information, Courts, Freedom of information, Government employees.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
5 U.S.C. 552; 18 U.S.C. 1905; 19 U.S.C. 2531-2582; 21 U.S.C. 321-393, 1401-1403; 42 U.S.C. 241, 242, 242a, 242l, 242n, 243, 262, 263, 263b-263n, 264, 265, 300u-300u-5, 300aa-1.
(c) * * *
(43) Minor-use or minor-species (MUMS) drug designations, in § 516.52 of this chapter.
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(k)
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e, 381.
21 U.S.C. 360ccc-2, 371.
(a) This part implements section 573 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360ccc-2) and contains the following subparts:
(1) Subpart A—General Provisions.
(2) Subpart B—Designation of a Minor Use or Minor Species New Animal Drug.
(3) Subpart C—[Reserved]
(4) Subpart D—[Reserved]
(b) References in this part to regulatory sections of the Code of Federal Regulations are to Chapter I of Title 21, unless otherwise noted.
This part establishes standards and procedures for implementing section 573 of the act, including designation of minor use or minor species new animal drugs and associated exclusive marketing rights.
(a) The definitions and interpretations contained in section 201 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 321) apply to those terms when used in this part.
(b) The following definitions of terms apply to all subparts of part 516:
(i) The drug has been shown to be more effective, as assessed by effect on a clinically meaningful endpoint in adequate and well-controlled clinical trials, than a conditionally approved or approved MUMS drug, that is otherwise the same drug. Generally, this would represent the same kind of evidence needed to support a comparative effectiveness claim for two different drugs; in most cases, direct comparative clinical trials will be necessary; or
(ii) The drug has been shown to be safer than a conditionally-approved or approved MUMS drug, that is otherwise the same drug, in a substantial portion of the target population, for example, by the elimination of an ingredient or contaminant that is associated with relatively frequent adverse effects. In some cases, direct comparative clinical trials will be necessary.
(i) Part 520: Oral dosage form new animal drugs (excluding use in animal feeds as specified in part 558 of this chapter).
(ii) Part 522: Implantation or injectable dosage form new animal drugs.
(iii) Part 524: Ophthalmic and topical dosage form new animal drugs.
(iv) Part 526: Intramammary dosage forms.
(v) Part 529: Certain other dosage form new animal drugs.
(vi) Part 558: New animal drugs for use in animal feeds.
(i) If it is a MUMS drug composed of small molecules and contains the same active moiety as a prior designated, conditionally-approved, or approved MUMS drug, even if the particular ester or salt (including a salt with hydrogen or coordination bonds) or other noncovalent derivative such as a complex, chelate or clathrate is not the same, it is considered the same drug; except that, if the prior MUMS drug is conditionally approved or approved and the second MUMS drug is shown to be functionally superior to the conditionally approved or approved MUMS drug for the same intended use, it is not considered the same drug.
(ii) If it is a MUMS drug composed of large molecules (macromolecules) and contains the same principal molecular structural features (but not necessarily all of the same structural features) as a prior designated, conditionally approved, or approved MUMS drug, it is considered the same drug; except that, if the prior MUMS drug is conditionally approved or approved and the second MUMS drug is shown to be functionally superior to the conditionally approved or approved MUMS drug for the same intended use, it is not considered the same drug. This criterion will be applied as follows to different kinds of macromolecules:
(A) Two protein drugs would be considered the same if the only differences in structure between them were due to post-translational events or infidelity of translation or transcription or were minor differences in amino acid sequence; other potentially important differences, such as different glycosylation patterns or different tertiary structures, would not cause the drugs to be considered different unless the subsequent drug is shown to be functionally superior.
(B) Two polysaccharide drugs would be considered the same if they had identical saccharide repeating units, even if the number of units were to vary and even if there were postpolymerization modifications, unless the subsequent drug is shown to be functionally superior.
(C) Two polynucleotide drugs consisting of two or more distinct nucleotides would be considered the same if they had an identical sequence of purine and pyrimidine bases (or their derivatives) bound to an identical sugar backbone (ribose, deoxyribose, or modifications of these sugars), unless
(D) Closely related, complex partly definable drugs with similar pharmacologic intent would be considered the same unless the subsequent drug is shown to be functionally superior.
(i) Two intended uses are considered the same if one of the intended uses falls completely within the scope of the other.
(ii) For intended uses associated with diseases or conditions with multiple causative organisms, two intended uses are not considered the same when they involve different causative organisms or different subsets of causative organisms of that disease or condition when the causative organisms involved can reliably be shown to be clinically significant causes of the disease or condition.
(iii) Two intended uses of a drug are not considered the same if they involve different intended species or different definable subpopulations (including “production classes”) of a species.
This subpart implements section 573 of the act. Specifically, this subpart sets forth the procedures and requirements for submissions to FDA of requests for designation of a new animal drug for a minor use or a minor species.
This subpart establishes standards and procedures for determining eligibility for designation and the associated incentives and benefits described in section 573 of the act, including a 7-year period of exclusive marketing rights.
The following definitions of terms apply only in the context of subpart B of this part:
All correspondence relating to a request for designation of a MUMS drug must be addressed to the Director of the Office of Minor Use and Minor Species Animal Drug Development. Submissions not including all elements specified in § 516.20 will be returned to the sponsor without review.
The person requesting designation must be the sponsor and the real party in interest of the development and the intended or actual production and sales of the drug or the permanent-resident U.S. agent for such a sponsor.
(a) A sponsor that submits a request for designation of a new animal drug intended for a minor use or minor species must submit each request in the form and containing the information required in paragraph (b) of this section. While a request for designation may involve multiple intended uses, each request for designation must constitute a separate submission. A sponsor may request MUMS-drug designation of a previously unapproved drug, or a new intended use or dosage form for an already conditionally approved or approved drug. Only one sponsor may receive MUMS-drug designation of the same drug, in the same dosage form, for the same intended use.
(b) A sponsor must submit two copies of a completed, dated, and signed request for designation that contains the following information:
(1) A request for designation of a new animal drug for a minor use or use in a minor species, which must be specific.
(2) The name and address of the sponsor; the name of the sponsor's primary contact person and/or permanent-resident U.S. agent including title, address, and telephone number; the generic and trade name, if any, of the drug; and the name and address of the source of the drug.
(3) A description of the proposed intended use for which the drug is being or will be investigated.
(4) A description of the drug and dosage form.
(5) A discussion of the scientific rationale for the intended use of the drug; specific reference, including date(s) of submission, to all data from nonclinical laboratory studies, clinical investigations, copies of pertinent unpublished and published papers, and other relevant data that are available to the sponsor, whether positive, negative, or inconclusive.
(6) A specific description of the product development plan for the drug, its dosage form, and its intended use.
(7) If the drug is intended for a minor use in a major species, documentation in accordance with § 516.21, with appended authoritative references, to demonstrate that such use is a minor use.
(8) A statement that the sponsor submitting the request is the real party in interest of the development and the intended or actual production and sales of the product.
(9) A statement that the sponsor acknowledges that, upon granting a
So that FDA can determine whether a drug qualifies for MUMS-drug designation as a minor use in a major species under section 573 of the act, the sponsor shall include in its request to FDA for MUMS-drug designation under § 516.20 documentation demonstrating that the use is limited to a small number of animals (annualized). This documentation must include the following information:
(a) The estimated total number of animals to which the drug could potentially be administered on an annual basis for the treatment, control, or prevention of the disease or condition for which the drug is being developed, including animals administered the drug as part of herd or flock treatment, together with a list of the sources (including dates of information provided and literature citations) for the estimate.
(b) The estimated total number of animals referred to in paragraph (a) of this section may be further reduced to only a subset of the estimated total number of animals if administration of the drug is only medically justified for this subset. To establish this, requestors must demonstrate that administration of the drug to animals subject to the disease or condition for which the drug is being developed other than the subset is not medically justified. The sponsor must also include a list of the sources (including dates of information provided and literature citations) for the justification that administration of the drug to animals other than the targeted subset is medically inappropriate.
(c) An estimate of the potential market associated with the total number of animals established in paragraph (a) of this section compared to an estimate of the development costs of the proposed drug, in the proposed dosage form, for the proposed intended use.
Every foreign sponsor that seeks MUMS-drug designation shall name a permanent resident of the United States as the sponsor's agent upon whom service of all processes, notices, orders, decisions, requirements, and other communications may be made on behalf of the sponsor. Notifications of changes in such agents or changes of address of agents should preferably be provided in advance, but not later than 60 days after the effective date of such changes. The permanent-resident U.S. agent may be an individual, firm, or domestic corporation and may represent any number of sponsors. The name and address of the permanent-resident U.S. agent shall be provided to the Director of the Office of Minor Use and Minor Species Animal Drug Development.
A sponsor may request MUMS-drug designation at any time in the drug development process prior to the submission of an application for either conditional approval or approval of the MUMS drug for which designation is being requested.
(a) FDA may grant the request for MUMS-drug designation if none of the reasons described in § 516.25 for refusal to grant such a request apply.
(b) When a request for MUMS-drug designation is granted, FDA will notify the sponsor in writing and will give public notice of the MUMS-drug designation in accordance with § 516.28.
(a) FDA will refuse to grant a request for MUMS-drug designation if any of the following reasons apply:
(1) The drug is not intended for use in a minor species or FDA determines that there is insufficient evidence to demonstrate that the drug is intended for a minor use in a major species.
(2) The drug is the same drug in the same dosage form for the same intended use as one that already has a MUMS-drug designation but has not yet been conditionally approved or approved.
(3) The drug is the same drug in the same dosage form for the same intended use as one that is already conditionally approved or approved. A drug that FDA has found to be functionally superior is not considered the same drug as an already conditionally approved or approved drug even if it is otherwise the same drug in the same dosage form for the same intended use.
(4) The sponsor has failed to provide:
(i) A credible scientific rationale in support of the intended use,
(ii) Sufficient information about the product development plan for the drug, its dosage form, and its intended use to establish that adherence to the plan can lead to successful drug development in a timely manner, and
(iii) Any other information required under § 516.20.
(b) FDA may refuse to grant a request for MUMS-drug designation if the request for designation contains an untrue statement of material fact or omits material information.
(a) At any time prior to conditional approval or approval of an application for a MUMS-designated drug, the sponsor may apply for an amendment to the designated intended use if the proposed change is due to new and unexpected findings in research on the drug, information arising from FDA recommendations, or other unforeseen developments.
(b) FDA will grant the amendment if it finds:
(1) That the initial designation request was made in good faith;
(2) That the amendment is intended to make the MUMS-drug designated intended use conform to the results of new and unexpected findings in research on the drug, information arising from FDA recommendations, or other unforeseen developments; and
(3) In the case of a minor use, that as of the date of the submission of the amendment request, the amendment would not result in the intended use of the drug no longer being considered a minor use.
(a) A sponsor may transfer sponsorship of a MUMS-designated drug to another person. A change of sponsorship will also transfer the designation status of the drug which will remain in effect for the new sponsor subject to the same conditions applicable to the former sponsor provided that at the time of a potential transfer, the new and former sponsors submit the following information in writing and obtain permission from FDA:
(1) The former sponsor shall submit a letter to FDA that documents the transfer of sponsorship of the MUMS-designated drug. This letter shall specify the date of the transfer. The former sponsor shall also certify in writing to FDA that a complete copy of the request for MUMS-drug designation, including any amendments to the request, and correspondence relevant to the MUMS-drug designation, has been provided to the new sponsor.
(2) The new sponsor shall submit a letter or other document containing the following information:
(i) A statement accepting the MUMS-drug designated file or application;
(ii) The date that the change in sponsorship is intended to be effective;
(iii) A statement that the new sponsor has a complete copy of the request for
(iv) A statement that the new sponsor understands and accepts the responsibilities of a sponsor of a MUMS-designated drug established elsewhere in this subpart;
(v) The name and address of a new primary contact person or permanent resident U.S. agent; and
(vi) Evidence that the new sponsor is capable of actively pursuing approval with due diligence.
(b) No sponsor may relieve itself of responsibilities under the act or under this subpart by assigning rights to another person without:
(1) Assuring that the new sponsor will carry out such responsibilities; and
(2) Obtaining prior permission from FDA.
FDA will periodically update a publicly available list of MUMS-designated drugs. This list will be placed on file at the FDA Division of Dockets Management, and will contain the following information for each MUMS-designated drug:
(a) The name and address of the sponsor;
(b) The established name and trade name, if any, of the drug;
(c) The dosage form of the drug;
(d) The species and the proposed intended use for which MUMS-drug designation was granted; and
(e) The date designation was granted.
(a) The sponsor of a MUMS-designated drug must notify FDA of any decision to discontinue active pursuit of conditional approval or approval of such MUMS drug. FDA must terminate the designation upon such notification.
(b) A conditionally-approved or approved MUMS-designated drug sponsor must notify FDA at least 1 year before it intends to discontinue the manufacture of such MUMS drug. FDA must terminate designation upon such notification.
(c) MUMS designation shall terminate upon the expiration of any applicable period of exclusive marketing rights under this subpart.
(d) FDA may terminate designation if it independently determines that the sponsor is not actively pursuing conditional approval or approval with due diligence. At a minimum, due diligence must be demonstrated by:
(1) Submission of annual progress reports in a timely manner in accordance with § 516.30 that demonstrate that the sponsor is progressing in accordance with the drug development plan submitted to the agency under § 516.20 and
(2) Compliance with all applicable requirements of part 511 of this chapter.
(e) Designation of a conditionally approved or approved MUMS-designated drug and the associated exclusive marketing rights may be terminated if the sponsor is unable to provide sufficient quantities of the drug to meet the needs for which it is designated.
(f) FDA may also terminate MUMS-drug designation for any drug if the agency finds that:
(1) The request for designation contained an untrue statement of material fact; or
(2) The request for designation omitted material information required by this subpart; or
(3) FDA subsequently finds that the drug in fact had not been eligible for MUMS-drug designation at the time of submission of the request;
(4) The same drug, in the same dosage form, for the same intended use becomes conditionally approved or approved for another sponsor; or
(5) FDA withdraws the conditional approval or approval of the application for the new animal drug.
(g) For a conditionally approved or approved drug, termination of MUMS-drug designation also terminates the sponsor's exclusive marketing rights for the drug but does not withdraw the conditional approval or approval of the drug's application.
(h) Where a drug has been MUMS-designated for a minor use in a major species, its designation will not be terminated on the grounds that the number of animals to which the drug could potentially be administered on an annual basis for the treatment, control, or prevention of the disease or condition for which the drug is being developed, including animals administered the drug as part of herd or flock treatment, subsequently increases.
(i) When a MUMS-drug designation is terminated, FDA will notify the sponsor in writing and will give public notice of the termination of the MUMS-drug designation.
Within 14 months after the date on which a MUMS drug is granted designation and annually thereafter until approval, the sponsor of a MUMS-designated drug shall submit a brief progress report on the drug to the investigational new animal drug file addressed to the Director of the Office of Minor Use and Minor Species Animal Drug Development that includes the following information:
(a) A short account of the progress of drug development including a description of studies initiated, ongoing, and completed, and a short summary of the status or results of such studies;
(b) A description of the investigational plan for the coming year, as well as any anticipated difficulties in development, testing, and marketing; and
(c) A brief discussion of any changes that may affect the MUMS-designated drug status of the product. For example, situations in which testing data demonstrate that the proposed intended use is inappropriate due to unexpected issues of safety or effectiveness.
(a) After conditional approval or approval of an application for a MUMS-designated drug in the dosage form and for the intended use for which MUMS-drug designation has been granted, FDA will not conditionally approve or approve another application or abbreviated application for the same drug in the same dosage form for the same intended use before the expiration of 7 years after the date of conditional approval or approval as stated in the approval letter from FDA, except that such an application can be conditionally approved or approved sooner if, and at such time as, any of the following occurs:
(1) FDA terminates the MUMS-drug designation and associated exclusive marketing rights under § 516.29; or
(2) FDA withdraws the conditional approval or approval of the application for the drug for any reason; or
(3) The sponsor with exclusive marketing rights provides written consent to FDA to conditionally approve or approve another application before the expiration of 7 years; or
(4) The sponsor fails to assure a sufficient quantity of the drug in accordance with section 573 of the act and § 516.36.
(b) If an application for a MUMS drug cannot be approved until the expiration of the period of exclusive marketing of a MUMS-designated drug, FDA will so notify the sponsor in writing.
(a) FDA will send the sponsor (or the permanent-resident U.S. agent, if applicable) timely written notice recognizing exclusive marketing rights when an application for a MUMS-
(b) When an application is conditionally approved or approved for a MUMS-designated drug that qualifies for exclusive marketing rights, FDA will publish this information in the
(a) Under section 573 of the act, whenever FDA has reason to believe that sufficient quantities of a conditionally-approved or approved, MUMS-designated drug to meet the needs for which the drug was designated cannot be assured by the sponsor, FDA will so notify the sponsor of this possible insufficiency and will offer the sponsor the following options, one of which must be exercised by a time that FDA specifies:
(1) Provide FDA information and data regarding how the sponsor can assure the availability of sufficient quantities of the MUMS-designated drug within a reasonable time to meet the needs for which the drug was designated; or
(2) Provide FDA in writing the sponsor's consent for the conditional approval or approval of other applications for the same drug before the expiration of the 7-year period of exclusive marketing rights.
(b) If, within the time that FDA specifies, the sponsor fails to consent to the conditional approval or approval of other applications and if FDA finds that the sponsor has not shown that it can assure the availability of sufficient quantities of the MUMS-designated drug to meet the needs for which the drug was designated, FDA will issue a written order terminating designation of the MUMS drug and the associated exclusive marketing rights. This order will state FDA's findings and conclusions and will constitute final agency action. An order terminating designation and associated exclusive marketing rights may issue whether or not there are other sponsors that can assure the availability of alternative sources of supply. Such an order will not withdraw the conditional approval or approval of an application. Once terminated under this section, neither designation, nor exclusive marketing rights may be reinstated.
(a) FDA will not publicly disclose the existence of a request for MUMS-drug designation under section 573 of the act prior to final FDA action on the request unless the existence of the request has been previously publicly disclosed or acknowledged.
(b) Whether or not the existence of a pending request for designation has been publicly disclosed or acknowledged, no data or information in the request are available for public disclosure prior to final FDA action on the request.
(c) Except as provided in paragraph (d) of this section, upon final FDA action on a request for designation, the public availability of data and information in the request will be determined in accordance with part 20 of this chapter and other applicable statutes and regulations.
(d) In accordance with § 516.28, FDA will make a cumulative list of all MUMS-drug designations available to the public and update such list periodically. In accordance with § 516.29, FDA will give public notice of the termination of all MUMS-drug designations.
This document was received at the Office of the Federal Register on July 23, 2007.
Internal Revenue Service (IRS), Treasury.
Correction to temporary regulations.
This document contains corrections to temporary regulations (TD 9333) that were published in the
The correction is effective July 26, 2007.
Stuart Spielman, (202) 622-7950 (not a toll-free number).
The temporary regulations that are the subject of this correction are under section 6404(g) of the Internal Revenue Code.
As published, temporary regulations (TD 9333) contain errors that may prove to be misleading and are in need of clarification.
Accordingly, the publication of the temporary regulations (TD 9333), which was the subject of FR Doc. E7-12081, is corrected as follows:
1. On page 34176, column 2, in the preamble, under the caption “
2. On page 34176, column 3, in the preamble, under the paragraph heading “Background”, line 8 from the bottom of the paragraph, the language “Public Law 110-28 (121 Stat. 112, 200),” is corrected to read “Public Law 110-28 (121 Stat. 190, 200),”.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing special local regulations during the “East Coast Boat Racing Club power boat race”, a marine event to be held over the waters of the Chesapeake Bay adjacent to Cape Charles, Virginia. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic on the Chesapeake Bay in the vicinity of Cape Charles Beach, Cape Charles, Virginia during the event.
This rule is effective from 11:30 a.m. on August 4, 2007 through 4:30 p.m. on August 5, 2007.
Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05-07-043 and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004 between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays.
Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at (757) 398-6204.
On May 22, 2007, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulations for Marine Events; Chesapeake Bay, Cape Charles, VA in the
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
On August 4, 2007, the East Coast Boat Racing Club of New Jersey will sponsor a power boat race, on the waters of the Chesapeake Bay, Cape Charles, Virginia. The event will consist of approximately 20 New Jersey Speed Garveys and Jersey Speed Skiffs conducting high-speed competitive races along an oval race course in close proximity to Cape Charles Beach, Cape Charles, Virginia. A fleet of spectator vessels is expected to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.
The Coast Guard did not receive comments in response to the notice of proposed rulemaking (NPRM) published in the
This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary.
Although this regulation will prevent traffic from transiting a portion of the Chesapeake Bay during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, and area newspapers, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Chesapeake Bay adjacent to Cape Charles Beach during the event.
This rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section.
Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
33 U.S.C. 1233.
(a)
(b)
(2)
(3)
(c)
(2) The operator of any vessel in the regulated area shall:
(i) Stop the vessel immediately when directed to do so by any Official Patrol.
(ii) Proceed as directed by any Official Patrol.
(iii) When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.
(d)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency is approving a revision to the New Jersey Operating Permit Program related to the permitting of stationary sources subject to title V of the Clean Air Act in the state of New Jersey. The revision consists of amendments to Subchapter 22 of Chapter 27 of Title 7 of the New Jersey Administrative Code, “Operating Permits.” The revision was submitted to amend the definition, permit application, and fees sections of the Operating Permit Rule. The changes add clarity to the rule and assure adequate funding for New Jersey's Operating Permit Program. The intended effect of this action is to approve the program revision requested by New Jersey to assure proper implementation of the requirements of title V of the CAA.
EPA has established a docket for this action under the Federal Docket Management System (FDMS) which replaces the Regional Materials in EDOCKET (RME) docket system. The new FDMS is located at
Suilin Chan, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-4019.
On October 4, 2006, New Jersey Department of Environmental Protection (NJDEP) submitted to EPA a request to revise its Operating Permits Rule. The revisions consisted of amendments to sections 22.1, 22.3, 22.4, 22.6, 22.10, and 22.31 of the Operating Permits Rule codified at Title 7 of the New Jersey Administrative Code, Chapter 27, Subchapter 22. These revisions were adopted by the State on May 1, 2006 (inadvertently listed June 9, 2006 as the adoption date in the proposal) and became effective on June 19, 2006.
On March 20, 2007 (72 FR 13059), EPA proposed to approve the revised Subchapter 22 as part of New Jersey's Operating Permits Rule. For a detailed discussion on the content of the revisions to New Jersey's rule, the reader is referred to EPA's proposed rulemaking action.
In response to EPA's March 20, 2007, proposed rulemaking action, EPA received no comments.
EPA has evaluated New Jersey's submittal for consistency with the Act, EPA regulations, and EPA policy. EPA has determined that the revisions to Subchapter 22, New Jersey's Operating Permits Rule meet title V of the CAA and its implementing regulations codified at Title 40 of the Code of Federal Regulations, part 70. Therefore, EPA is approving the subject revisions.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.
In reviewing State Operating Permit Programs submitted pursuant to title V of the Clean Air Act, EPA will approve such regulations provided that they meet the requirements of the Clean Air Act and EPA's regulations codified at 40 CFR part 70. In this context, in the
The Congressional Review Act, 5 U.S.C. section 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 24, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.
42 U.S.C. 7401
(d) The New Jersey Department of Environmental Protection submitted program revisions on October 4, 2006; approval effective August 27, 2007.
Agricultural Research Service, Education, and Economics; USDA.
Proposed rule.
This Part establishes uniform guidelines within the Research, Education, and Economics (REE) mission area on the use, award, and administration of cooperative agreements awarded under the authority of 7 U.S.C. 3318(b).
Submit comments on or before September 24, 2007.
Send comments to Kim Hicks, Agricultural Research Service, Extramural Agreements Division, MS-5110, 5601 Sunnyside Ave., Beltsville, MD 20705-5110.
Kim Hicks, Chief, Grants & Agreements Management Staff, ARS 5601 Sunnyside Ave., Beltsville, MD 20705-5110; Telephone: (301) 504-1141, Fax: (301) 504-1262; E-mail:
Section 1424 of the Food Security Act of 1985, Public Law 99-198, amended Section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3318(b)) to authorize the Secretary to use a cooperative agreement as a legal instrument reflecting a relationship between the Secretary and a State cooperative institution, State department of agriculture, college, university, other research or educational institution or organization, Federal or private agency or organization, individual, or any other party, if the Secretary determines (a) The objectives of the agreement will serve a mutual interest of the parties to the agreement in agricultural research, extension, and teaching activities, including statistical reporting; and (b) all parties will contribute resources to the accomplishment of those objectives.
The cooperative agreements authorized by 7 U.S.C. 3318(b) have been determined to be neither procurement nor assistance in nature and, therefore, not subject to the provisions of Federal Grant and Cooperative Agreement Act of 1977. These cooperative agreements are exempt from Department of Agriculture (USDA) rules and regulations promulgated at 7 CFR parts 3015, 3016, and 3019. The agreements covered by this Part are characterized by mutual interest and benefit to both parties, and reflect the unique cooperative relationship that exists between the REE agencies and the various public and private organizations engaged in the conduct of agricultural research, extension, and teaching activities.
Although the nonassistance cooperative agreements described in this Rule are substantively different than the Federal assistance-type cooperative agreements used by most Federal awarding agencies and are not subject to the grants management Common Rule found at 2 CFR part 215, “Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals and Other Non-profit Organizations,” REE has decided to apply many of the provisions of the Common Rule as a matter of good business practice. Many of the standards and provisions of the Common Rule have been adopted in whole or in part in the proposed rule because they embody principles of good management and sound financial stewardship important to all Federal assistance and nonassistance awards. Additionally, we have included by reference specific provisions of other Federal assistance-type or procurement guidance documents such as 7 CFR 3052, 42 U.S.C. 6962, and the Cash Management Improvement Act, codified at 31 CFR part 205, for the same reasons.
This part provides a summary of some of the more significant sections of the rule as well as background information that will be used in reading and interpreting it. Sections on Definitions, Applicability, Competition policy, Duration of the agreement, Special Award Conditions and others, provide general information on REE requirements and expectations. Some of the sections contain provisions that apply only to statutes authorizing nonassistance cooperative agreements and may be unfamiliar to those that normally work under Federal assistance-type cooperative agreements and grants.
We are providing an analysis of some of the specific provisions of the sections in this part in an attempt to provide the commenter with a better understanding of their context in the rule and the reasons that they were written. Although commenters may offer comments on all aspects of this proposed rule there are a number of areas that are required by statute and therefore cannot be changed.
We offer additional explanation and information on the following sections of this Part:
The definitions used in this Part are derived from several sources. They include USDA's implementation of Office of Management and Budget (OMB) Circular A-110 at 7 CFR part 3019 (2 CFR part 215), certain REE statutes authorizing the use of non-assistance agreements and other terms and definitions that have been commonly used in conjunction with REE's non-assistance agreement programs.
The eligibility standards referenced in this section were determined by statute. (7 U.S.C. 3318(b)(1)).
The non-assistance agreements awarded under this authority can be made without regard to any requirements for competition. The policy regarding competition referenced in this section was determined by statute. (7 U.S.C. 3318(e))
REE Agencies may enter into non-assistance cooperative agreements for a period not to exceed 5 years.
The principle of mutuality of interest is extremely important in REE programs in which non-assistance agreements are used. Mutuality of interest is the cornerstone upon which decisions to enter into specific relationships with cooperators, on specific projects, are based. The statute authorizing the use of nonassistance cooperative agreements has, as one of the two principles for its use, the following provision: “* * * the objectives of the agreement will serve a mutual interest of the parties to the agreement * * *”
The prohibitions and restrictions on payment of indirect costs on non-assistance cooperative agreements are based in statute (7 U.S.C. 3319).
Payment of indirect costs to State Cooperative Institutions referenced in the Definitions section of this document is prohibited. This prohibition does not apply to funds for international agricultural programs conducted by a State cooperative institution and administered by the Secretary or to funds provided by a Federal agency for such cooperative program or project through a fund transfer, advance or reimbursement (7 U.S.C. 3319). Payment of indirect costs to non-profit organizations is limited to 10 percent of the total direct cost of the project.
In accordance with the annual appropriations language as specified in the cooperative agreement General Provisions, payment of indirect costs on REE nonassistance cooperative agreements with all other cooperating organizations is limited to the percentage(s) established in the Cooperator's negotiated indirect cost rate schedule.
This section details the resource contributions that are required of Cooperators when participating in REE non-assistance cooperative agreements. Historically, there were no firm guidelines or requirements regarding the minimum contribution of resources on REE projects documented by non-assistance cooperative agreements. Contributions were expected to be “* * * more than nominal.” This vague guidance led to disparities among the contributions put forward by various organizations, confusion and a lack of direction among all parties charged with negotiating these awards and, in some cases a lack of true commitment to the project objectives on the part of the cooperator.
In a 1993 USDA, Office of General Counsel (OGC) opinion it was noted that the contributions that are required under the statute “* * * must be substantial enough to evoke a partnership type relationship such that all parties to the agreement have a real stake in the activity * * *” and that “* * * the exact amount that each party must contribute is a policy decision best left to the discretion of the agency.”
REE Agencies have now established a minimum resource contribution of no less than 20 percent of the funded amount of the agreement. This decision was made after consultation with other USDA agencies and other Federal agencies. While it was noted during this consultation process that some other agencies had higher minimums of resource contributions, REE Agencies decided that a 20 percent minimum was reasonable and efficacious.
Further, REE Agencies decided that the contribution required of cooperators could consist of “in kind” contributions and unrecoverable indirect costs. The section goes on to cite and define these in kind contributions in a manner that is consistent with the standard practices found in Federal agencies' implementation of OMB's guidance to Federal agencies found at 2 CFR part 215.
As Federal resources become more scarce due to budget limitations it may become necessary to make changes to the way in which these costs are calculated. REE Agencies reserve the right and authority to increase the amount of the minimum contribution if and when it is necessary to do so.
Due to the true collaborative nature of the research and other projects that REE Agencies enter into with their cooperators REE has determined that the reimbursement method of payment is the preferred method of payment for nonassistance cooperative agreements. While advance payment has proven to be the most reasonable approach for payments to grantees under grant programs, REE Agencies have determined that the most effective method of payment under nonassistance cooperative agreements is the reimbursement method of payment. The reimbursement method of payment utilizes Electronic Fund Transfers which are common to most recipient organizations and the technology has been in use for many years with nearly seamless efficiency.
The Management of Agreements sections of this rule closely parallel the provisions of OMB's Circular A-110, codified as 2 CFR part 215 and other provisions previously published in USDA regulations found at 7 CFR part 3015 and successor regulations. Because most educational institutions and other organizations covered by this rule are already subject to these provisions, and because the provisions have been previously approved under other Federal rulemaking efforts, we believe it unnecessary to further explain their purpose or place in this rule.
We will review other aspects of the rule that differ due either to statutory exception or Agency discretion.
Section 550.29 Press Releases. REE agencies are involved in a wide variety of research projects in many different areas of research. Some of these projects involve national security concerns or classified areas of research and are performed in cooperation with the Department of Homeland Security or other Federal protection agencies.
This section was added to assure that only appropriate information is released to the public on REE projects.
Section 550.30 Advertising. This section was developed in order to preclude Cooperators from claiming the endorsement of USDA on products or research results that were funded either directly, or indirectly, by the Federal government.
Statements that include references to the REE agency in advertising media can imply the endorsement of the Federal government at large. This provision would not preclude such references but would require prior approval for their use.
Section 550.32 Project Supervision and Responsibilities and Section 550.33 Administrative Supervision were included here to assist in the delineation of duties between the Cooperator and the REE agency. This is necessary due to the extremely close collaboration between agency employees and the employees of the Cooperator. In many cases the employees of both entities work side-by-side often causing difficult work situations when it comes to matters such as overtime and holiday hours, and other common workplace and workday rules. The provisions of this section are an attempt to clarify some of the roles and rules that have historically presented challenges to administrators and program leaders of both entities.
The Procurement Standards established in this Part are consistent with the standards set out in 2 CFR part 215 and USDA's Federal assistance regulations at 7 CFR part 3019.
This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866.
The programs covered by these regulations are listed in the Catalog of Federal Domestic Assistance (CFDA) under the following CFDA numbers: the Agricultural Research Service found at 10.001; the Economics Research Service found at 10.250; and the National Agricultural Statistics Service found at 10.950.
Because this proposed regulation does not authorize any programs or program expenditures, this notice is not subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR Part 3015, subpart V.)
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) State and local laws and regulations will not be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural research, Non-assistance, Procedural rules, Research, Science and technology.
For the reasons stated in the preamble, the Department of Agriculture, Agriculture Research Service, proposes to amend 7 CFR chapter V by adding part 550 as set forth below.
Section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended. (7 U.S.C 3318(b).
This Part establishes REE-wide standards of USDA's award and administration of non-assistance cooperative agreements executed under the authority of Section 1472(b) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended. (7 U.S.C. 3318(b)). These agreements are neither procurement nor assistance in nature, and therefore, are not subject to the Federal Grant and Cooperative Agreements Act of 1977. Accordingly, proper use of these cooperative agreements will promote and facilitate partnerships between the REE Agency and the Cooperator in support of research, extension and education projects of mutual benefit to each party.
(1) Goods and other tangible property received;
(2) Services performed by employees, contractors, subrecipients, and other payees; and,
(3) Other amounts becoming owed under programs for which no current services or performance is required.
(1) Determine if agency sponsored research projects have scientific merit and program relevance;
(2) Provide peer input and make improvements to project design and technical approaches;
(3) Provide insight on how to conduct the highest quality research in support of Agency missions and programs.
(1) The First Morrill Act—The Land Grant Institutions.
(2) The Second Morrill Act—The 1890 Institutions.
(3) The Hatch Act of 1887—The State Agricultural Experiment Stations.
(4) The Smith-Lever Act—The State Extension Services.
(5) The McIntire-Stennis Act of 1962—The Cooperating Forestry Schools.
(6) Public Law 95-113, Section 1430—A college or university having an accredited college of veterinary medicine or a department of veterinary science or animal pathology or similar unit conducting animal health and disease research in a State Agricultural Experiment Station.
(7) Public Law 97-98, Section 1475b—Colleges, universities, and Federal laboratories having a
(8) Public Law 97-98, Section 1480—Colleges, universities, and Federal laboratories having a demonstrated capacity of rangeland research.
(9) Equity in Educational Land—Grant Status Act of 1994 (7 U.S.C. 301 note) 1994 Institutions.
This Part applies to all REE non-assistance cooperative agreements awarded under the authority of 7 U.S.C. 3318(b).
REE agencies may enter into non-assistance cooperative agreements with State agricultural experiment stations, State cooperative extension services, all colleges and universities, other research or education institutions and organizations, Federal and private agencies and organizations, individuals, and any other party, either foreign or domestic, to further research, extension, or teaching programs in the food and agricultural sciences. (7 U.S.C. 3318(b)(1)).
REE agencies may enter into non-assistance cooperative agreements, as authorized by this Part, without regard to any requirements for competition. (7 U.S.C. 3318(e)).
REE may enter into non-assistance cooperative agreements for a period not to exceed five years.
This Part does not apply to:
USDA Federal Financial Assistance agreements subject to 7 CFR parts 3015, 3016, or 3019;
Procurement contracts or other agreements subject to the Federal Acquisition Regulation (FAR) or the Agriculture Acquisition Regulation (AgAR); or Agreements providing loans or insurance directly to an individual.
This Part supersedes and takes precedence over any individual REE regulations and directives dealing with the award and administration of non-assistance cooperative agreements entered into under the delegated authority of 7 U.S.C. 3318(b). This Part may only be superseded, in whole or in part, by either a specifically worded statutory provision or a waiver authorized by the USDA-REE—Administrative and Financial Management (AFM)—Extramural Agreements Division (EAD) or any successor organization. Responsibility for developing, interpreting, and updating this Part is assigned to the USDA-REE-AFM-EAD or any successor organization.
Related issuances are in other Parts of the CFR and the U.S.C. as follows:
(a) 7 CFR Part 3017 “Governmentwide Debarment and Suspension”;
(b) 7 CFR Part 3018 “New Restrictions on Lobbying”;
(c) 7 CFR Part 3052 “Audits of States, Local Governments, and Nonprofit Organizations”;
(d) 7 CFR 3015.175 (b) “Copyrights”;
(e) 37 CFR 401.14 “Standard Patent Rights Clause”;
(f) 15 U.S.C. 205a
(g) 42 U.S.C. 6962 “Resource Conservation and Recovery Act (RCRA)”.
(a) REE Agencies may impose special conditions and/or additional requirements to a nonassistance agreement if a Cooperator:
(1) Has a history of poor performance,
(2) Is not financially stable,
(3) Has a management system that does not meet the standards prescribed in this Part,
(4) Has not conformed to the terms and conditions of a previous award, or
(5) Is not otherwise responsible.
(b) Special conditions and/or additional requirements may be added to an award provided that the Cooperator is notified in writing as to: the nature of the additional requirements, the reason why the additional requirements are being imposed, the nature of the corrective action needed, the time allowed for completing the corrective actions, and the method for requesting reconsideration of the additional requirements imposed.
Any special conditions shall be promptly removed once the conditions that prompted them have been corrected.
Sections 12 through 18 prescribe instructions and other pre-award matters to be used in establishing a non-assistance cooperative agreement.
REE Agencies must have programmatic statutory authority for the proposed project prior to entering into any non-assistance cooperative agreement.
The REE Agency shall document both parties' interest in the project. Mutual interest exists when both parties benefit in the same qualitative way from the
(a) Indirect Cost:
(1) State Cooperative Institutions.
Payment of indirect costs to State Cooperative Institutions in connection with non-assistance cooperative agreements awarded under the authority of 7 U.S.C. 3318(b) is prohibited. This prohibition does not apply to funds for international agricultural programs conducted by a State cooperative institution and administered by the Secretary or to funds provided by a Federal agency for such cooperative program or project through a fund transfer, advance or reimbursement. (7 U.S.C. 3319)
(2) Non-Profit Organizations:
Payment of indirect costs to non-profit institutions in connection with USDA cooperative agreement, under the authority of 7 U.S.C. 3318(b), is limited to 10 percent of the total direct cost of the project. (Annual Appropriations Bill for Agriculture and Related agencies, General Provisions)
(3) All other cooperating organizations:
With the exception of §§ 550.14(a)(1) and 550.14(a)(2), above, payment of indirect costs is allowable in connection with REE non-assistance cooperative agreements. Reimbursement of indirect costs is limited to the percentage(s) established in the Cooperator's negotiated indirect cost rate schedule.
(4) In any case, the REE Agency shall not reimburse indirect costs prior to receipt of the Cooperator's negotiated indirect cost rate schedule.
(b) Tuition Remission.
(1) State Cooperative Institutions.
Reimbursement of tuition expenses to State Cooperative Institutions in connection with REE non-assistance cooperative agreements is prohibited. (7 U.S.C 3319)
(2) All other cooperating organizations:
Except for § 550.14(b)(1), tuition remission is an allowable expense as determined in accordance with the cost principles applicable to the Cooperator. REE agencies shall negotiate and approve such payments as related to the scope and objectives of the non-assistance agreement.
Each party must contribute resources towards the successful completion of the project. Required resource contributions must be substantial enough to substantiate a true stake in the project as determined by the ADO.
(a) REE Agency's Contribution.
(1) The REE Agency's contribution must consist of the total in-house costs to the REE Agency and the total amount to be reimbursed by the REE Agency to the Cooperator for all allowable costs agreed to in advance as reflected in the cooperative agreement.
(b) Cooperator's Contribution.
(1) The Cooperator's contribution must be no less than 20 percent of the total of the resource contributions under the cooperative agreement. Resource contributions of the Cooperator must consist of a sufficient amount of itemized direct costs to substantiate a true stake in the project as determined by the ADO. The Cooperator's contribution must be maintained at 20 percent of Federal funding throughout the life of the cooperative agreement.
(2) Cooperators share of contributions may consist of “in-kind” contributions and may also include unrecoverable indirect costs. Such costs may be accepted as part of the Cooperator's resource contribution when all of the following criteria are met:
(i) Costs are verifiable from the Cooperator's records.
(ii) Costs are not included as contributions for any other federally assisted project or program.
(iii) Costs are necessary and reasonable for proper and efficient accomplishment of project or program objectives.
(iv) Costs are allowable under the applicable cost principles.
(v) Costs are not paid by the Federal Government under another award, except where authorized by Federal statute to be used for cost sharing or matching.
(vi) Costs conform to other provisions of this Part, as applicable.
(3) Volunteer services furnished by professional and technical personnel, consultants, and other skilled and unskilled labor may be counted as resource contributions if the service is an integral and necessary part of an approved project or program. Rates for volunteer services shall be consistent with those paid for similar work in the Cooperator's organization. In those instances in which the required skills are not found in the Cooperator organization, rates shall be consistent with those paid for similar work in the labor market in which the Cooperator competes for the kind of services involved. In either case, paid fringe benefits that are reasonable, allowable, and allocable may be included in the valuation.
(4) When an employer other than the Cooperator furnishes the services of an employee, these services shall be valued at the employee's regular rate of pay (plus an amount of fringe benefits that are reasonable, allowable, and allocable, but exclusive of overhead costs), provided these services are in the same skill for which the employee is normally paid.
(5) Donated supplies may include such items as expendable equipment, office supplies, laboratory supplies or workshop and classroom supplies. Value assessed to donated supplies included in the cost sharing or matching share shall be reasonable and shall not exceed the fair market value of the property at the time of the donation.
(6) The value of donated property shall be determined in accordance with the usual accounting policies of the Cooperator, with the following qualifications.
(i) The value of donated land and buildings shall not exceed its fair market value at the time of donation to the Cooperator as established by an independent appraiser (e.g., certified real property appraiser or General Services Administration representative) and certified by a responsible official of the Cooperator.
(ii) The value of donated equipment shall not exceed the fair market value of equipment of the same age and condition at the time of donation.
(iii) The value of donated space shall not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space and facilities in a privately owned building in the same locality.
(iv) The value of loaned equipment shall not exceed its fair rental value.
(v) The following requirements pertain to the Cooperator's supporting records for in-kind contributions from third parties.
(A) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by the Cooperator for its own employees.
(B) The basis for determining the valuation for personal service, material, equipment, buildings, and land shall be documented.
REE provides partial funding to Cooperators to support research projects that contribute to REE program objectives and help carry out the REE mission. The Cooperator's PI and the REE Agency's ADODR shall jointly develop the following documentation:
(a) Project Plan—A plan that shall be jointly developed by the REE ADODR and the Cooperator that is compliant with an REE program requirement. The project plan will utilize the REE provided format for external peer review.
(b) Statement of Work—A detailed statement of work shall be jointly planned, developed and prepared by the Cooperator's PI and the awarding Agency's ADODR consisting of the following:
(c) Budget—A plan that shall be jointly developed by the REE ADODR and the Cooperator PI outlining the following resource contributions:
(1) Total amount to be reimbursed by the REE Agency to the Cooperator. (Direct and Indirect Costs as applicable)
(2) Total in-house costs to the REE Agency. (Direct and indirect costs)
(3) Total in-house costs to the Cooperator. (Direct and indirect costs)
Upon request of the REE Agency, cooperators may be requested to provide documentation in support of peer review activities and cooperator personnel may be requested to participate in peer review forums to assist the REE Agency in their reviews.
(a) Governmentwide Debarment and Suspension (Non procurement)—7 CFR part 3017;
(b) Governmentwide requirements for Drug-Free Workplace—7 CFR part 3021;
(c) Non-discrimination. The Cooperator assures compliance with the following requirement: No person in the United States shall, on the grounds of race, color, national origin, sex, age, religion, political beliefs, or disability, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any project or activity under a non-assistance cooperative agreement.
(d) Protection of Human Subjects Requirements: The Cooperator assures compliance with the following provisions regarding the rights and welfare of human subjects:
(1) The Cooperator is responsible for safeguarding the rights and welfare of any human subjects involved in research, development, and related activities supported by this Agreement. The Cooperator may conduct research involving human subjects only as prescribed in the statement of work and as approved by the Cooperator's Cognizant Institutional Review Board. Prior to conducting such research, the Cooperator shall obtain and document a legally sufficient informed consent from each human subject involved. No such informed consent shall include any exculpatory language through which the subject is made to waive, or to appear to waive, any of his or her legal rights, including any release of the Cooperator or its agents from liability for negligence.
(2) The Cooperator agrees to comply with U.S. Department of Health and Human Services' regulations regarding human subjects, appearing in 45 CFR Part 46 (as amended).
(3) It will comply with REE policy, which is to assure that the risks do not outweigh either potential benefits to the subjects or the expected value of the knowledge sought.
(4) Selection of subject or groups of subjects shall be made without regard to sex, race, color, religion, or national origin unless these characteristics are factors to be studied.
(e) Animal Welfare Act Requirements: The Cooperator assures compliance with the Animal Welfare Act, as amended, 7 U.S.C. 2131,
(f) Recombinant DNA Research Requirements: The Cooperator assures that it will assume primary responsibility for implementing proper conduct on recombinant DNA research and it will comply with the National Institute of Health Guidelines for Recombinant DNA Research, as revised.
(1) If the Cooperator wishes to send or receive registered recombinant DNA material which is subject to quarantine laws, permits to transfer this material into the U.S. or across state lines may be obtained by contacting USDA/APHIS/PPQ, Scientific Services-Biotechnology Permits, 4700 River Road, Unit 133, Riverdale, Maryland 20737. In the event that the Cooperator has not established the necessary biosafety committee, a request for guidance or assistance may be made to the USDA Recombinant DNA Research Officer.
(g) Agriculture Bioterrorism Protection Act Requirements: The Cooperator assures compliance with the Agriculture Bioterrorism Protection Act of 2002, as implemented at 7 CFR Part 331 and 9 CFR Part 121, by agreeing that it will not possess, use, or transfer any select agent or toxin without a certificate of registration issued by the Agency.
Sections 550.20 through 550.25 of this subpart prescribe standards for financial management systems and program management requirements.
(a) REE agencies shall require Cooperators to relate financial data to performance data.
(b) Cooperators' financial management systems shall provide for the following.
(1) Accurate, current, and complete disclosure of the financial results of each REE sponsored project or program in accordance with the reporting requirements set forth in § 550.53 of this part. REE requires financial reporting on an accrual basis; however, the Cooperator shall not be required to establish an accrual accounting system. These Cooperators shall develop such accrual data through best estimated for their reports on the basis of an analysis of the documentation on hand.
(2) Records that identify the source and application of funds for federally sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and other assets. Cooperators shall adequately safeguard all such assets and assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data.
(5) Written procedures to minimize the time elapsing between the transfer of funds to the Cooperator from the U.S.
(6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award.
(7) Accounting records including cost accounting records that are supported by source documentation.
(c) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CFR Part 223, “Surety Companies Doing Business with the United States.”
The funding period will begin on the date of final signature, unless otherwise stated on the agreement, and continue for the project period specified on the cover page of the cooperative agreement.
(a) Payment methods shall minimize the time elapsing between the transfer of funds from the U.S. Treasury and the issuance or redemption of a check, warrant, or payment by other means by the Cooperators. Payment methods of State agencies or instrumentalities shall be consistent with Treasury-State CMIA agreements or default procedures codified at 31 CFR Part 205.
(b) Reimbursement is the preferred method of payment. All payments to the Cooperator shall be made via EFT.
(1) When the reimbursement method is used, the REE Agency shall make payment within 30 days after receipt of the billing, unless the billing is improper.
(2) Cooperators shall be authorized to submit requests for payment not more than quarterly and not less frequently than annually.
(3) Content of Invoice.
At a minimum, the Cooperator's invoice shall state the following:
(i) The name and address of the Cooperator;
(ii) The name and address of the PI;
(iii) The name and address of the financial officer to whom payments shall be sent;
(iv) A reference to the cooperative agreement number;
(v) The invoice date;
(vi) The time period covered by the invoice; and
(vii) Total dollar amount itemized by budget categories (labor, direct costs, and indirect costs, etc).
(4) To facilitate the EFT process, the Cooperator shall provide the following information:
(i) The name, addresses, and telephone number of the financial institution receiving payment;
(ii) The routing transit number of the financial institution receiving payment;
(iii) The account to which funds are to be deposited; and
(iv) The type of depositor account (checking or savings).
(c) If the REE Agency has determined that reimbursement is not feasible because the Cooperator lacks sufficient working capital, the REE Agency may provide cash on an advance basis provided the Cooperator maintains or demonstrates the willingness to maintain: (1) Written procedures that minimize the time elapsing between the transfer of funds and disbursement by the Cooperator, and (2) financial management systems that meet the standards for fund control and accountability as established in § 550.20. Under this procedure, the REE Agency shall advance cash to the Cooperator to cover its estimated disbursement needs for an initial period. The timing and amount of cash advances shall be as close as is administratively feasible to the actual disbursements by the Cooperator organization for direct program or project costs and the proportionate share of any allowable indirect costs.
(1) Advance payment mechanisms include, but are not limited to, Treasury check and electronic funds transfer.
(2) Advance payment mechanisms are subject to the requirements of 31 CFR Part 205.
(3) Requests for advance payment shall be submitted on SF-270, “Request for Advance or Reimbursement.” This form is not to be used when advance payments are made to the Cooperator automatically through the use of a predetermined payment schedule or if precluded by special REE Agency instructions for electronic funds transfer.
(4) Cooperators shall maintain advances of Federal funds in interest bearing accounts, unless § 550.22(c)(4)(i), (ii), or (iii) applies.
(i) The Cooperator receives less than $120,000 in Federal awards per year.
(ii) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances.
(iii) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources.
(5) For those entities where CMIA and its implementing regulations do not apply, interest earned on Federal advances deposited in interest bearing accounts shall be remitted annually to Department of Health and Human Services, Payment Management System, Rockville, MD 20852. The Cooperator for administrative expense may retain interest amounts up to $250 per year. State universities and hospitals shall comply with CMIA, as it pertains to interest. If an entity subject to CMIA uses its own funds to pay pre-award costs for discretionary awards without prior written approval from the REE Agency, it waives its right to recover the interest under CMIA. Thereafter, the REE Agency shall reimburse the Cooperator for its actual cash disbursements.
(6) Whenever possible, advances shall be consolidated to cover anticipated cash needs for all awards made by the REE Agency to the Cooperator. The working capital advance method of payment shall not be used for Cooperators unwilling or unable to provide timely advances to their subrecipient to meet the subrecipient's actual cash disbursements.
(d) To the extent available, Cooperators shall disburse funds available from repayments to and interest earned on program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments.
(e) Unless otherwise required by statute, REE Agencies shall not withhold payments for proper charges made by Cooperators at any time during the project period unless (1) or (2) apply.
(1) A Cooperator has failed to comply with the project objectives, the terms and conditions of the award, or REE reporting requirements.
(2) The Cooperator owes a debt to the United States which is subject to offset pursuant to 7 CFR Part 3 and Federal Clause Collection Standard; 31 CFR Parts 901-904.
(f) Standards governing the use of banks and other institutions as depositories of funds advanced or reimbursed under awards are as follows.
(1) Except for situations described in § 550.22(f)(2), REE Agencies shall not require separate depository accounts for funds provided to a Cooperator or
(2) Advances of Federal funds shall be deposited and maintained in insured accounts whenever possible.
(a) REE Agencies shall apply the standards set forth in this section in requiring Cooperator organizations to account for program income related to projects financed in whole or in part with Federal funds.
(b) Except as provided in § 550.23(f), program income earned during the project period shall be retained by the Cooperator and shall be added to funds committed to the project by the REE Agency and Cooperator and used to further eligible project or program objectives.
(c) Cooperators shall have no obligation to the Federal Government regarding program income earned after the end of the project period.
(d) Costs incident to the generation of program income may be deducted from gross income to determine program income, provided these costs have not been charged to the award.
(e) Proceeds from the sale of property shall be handled in accordance with the requirements of the Property Standards (See §§ 550.36 through 550.42).
(f) Cooperators shall have no obligation to the Federal Government with respect to program income earned from license fees and royalties for copyrighted material, patents, patent applications, trademarks, and inventions produced under an award. However, Patent and Trademark Amendments (35 U.S.C. Chapter 25) apply to inventions made under an experimental, developmental, or research award.
(a) Cooperators and subrecipients that are institutions of higher education or other non-profit organizations (including hospitals) shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations.”
(b) State and local governments shall be subject to the audit requirements contained in the Single Audit Act Amendments of 1996 (31 U.S.C. 7501-7507) and revised OMB Circular A-133, “Audits of States, Local Governments, and Non-Profit Organizations.”
(c) For-profit hospitals not covered by the audit provisions of revised OMB Circular A-133 shall be subject to the audit requirements of the REE agencies.
(d) Commercial organizations shall be subject to the audit requirements of the REE Agency or the prime recipient as incorporated into the award document.
For each kind of Cooperator, there is a set of Federal principles for determining allowable costs. Allowability of costs shall be determined in accordance with the cost principles applicable to the entity incurring the costs. Thus, allowability of costs incurred by State, local or federally recognized Indian tribal governments is determined in accordance with the provisions of OMB Circular A-87, “Cost Principles for State, Local, and Indian Tribal Governments” codified at 2 CFR Part 225. The allowability of costs incurred by non-profit organizations is determined in accordance with the provisions of OMB Circular A-122, “Cost Principles for Non-Profit Organizations” codified at 2 CFR Part 230. The allowability of costs incurred by institutions of higher education is determined in accordance with the provisions of OMB Circular A-21, “Cost Principles for Educational Institutions” codified at 2 CFR part 220. The allowability of costs incurred by hospitals is determined in accordance with the provisions of Subpart E of 45 CFR Part 74. The allowability of costs incurred by commercial organizations and those non-profit organizations listed in Appendix C to Circular A-122 (2 CFR part 230) is determined in accordance with the contract cost principles and procedures of the Federal Acquisition Regulation (FAR) at 48 CFR Part 31.
(a) Cooperators are responsible for managing the day-to-day operations of REE nonassistance awards using their established controls and policies, as long as they are consistent with REE requirements. However, in order to fulfill their role in regard to the stewardship of Federal funds, REE Agencies monitor their agreements to identify potential problems and areas where technical assistance might be necessary. This active monitoring is accomplished through review of reports and correspondence from the cooperator, audit reports, site visits, and other information available to the REE Agency. It is the responsibility of the Cooperator to ensure that the project is being performed in compliance with the terms and conditions of the award.
(b) Monitoring of a project or activity will continue for as long as the REE Agency retains a financial interest in the project or activity. REE agencies reserve the right to monitor a project after it has been administratively closed out and no longer providing active support in order to resolve issues of accountability and other administrative requirements. Additional requirements regarding reporting and program performance can be found in §§ 550.51 through 550.55 of this part.
(c) The REE Agency reserves the right to perform site visits at Cooperator locations. Access to project or program records shall be provided in accordance with the provisions of § 550.55 “Retention and access requirements for records.”
(a) The budget is the financial expression of the project or program as approved during the award process. REE agencies require that all Federal costs be itemized on the approved budget. The budget shall be related to performance for program evaluation purposes.
(b) Cooperators are required to report deviations from budget and program plans, and request prior approvals for budget and program plan revisions.
(c) Cooperators shall request prior approvals from REE Agencies for one or more of the following program or budget related reasons.
(1) Incur pre-award costs up to 90 days prior to award date. All pre-award costs are incurred at the Cooperator's risk (i.e., the REE Agency is under no obligation to reimburse such costs if for any reason the Cooperator does not receive an award or if the award is less than anticipated and inadequate to cover such costs).
(2) Change in the scope or the objective of the project or program (even if there is no associated budget revision requiring prior written approval).
(3) The absence for more than three months, or a 25 percent reduction in time devoted to the project, by the approved project director or principal investigator.
(4) Extensions of time, within statutory limitations, to complete project objectives. This extension may not be requested merely for the purpose of using unobligated balances. The Cooperator shall request the extension in writing with supporting reasons.
(5) The transfer of amounts budgeted for indirect costs to absorb increases in direct costs, or vice versa.
(6) The inclusion of costs that require prior approval in accordance with OMB
(7) Unless described in the agreement and funded in the approved awards, the sub award, transfer or contracting out of any work under an award. This provision does not apply to the purchase of supplies, material, equipment or general support services.
(d) When requesting approval for budget revisions, Cooperators shall use the budget form used in the cooperative agreement.
(e) Within 30 calendar days from the date of receipt of the request for budget revisions, the ADO shall review the request and notify the Cooperator whether the budget revisions have been approved.
(a) Publications. REE Agencies and the Federal Government shall enjoy a royalty-free, nonexclusive, and irrevocable right to reproduce, publish or otherwise use, and to authorize others to use, any materials developed in conjunction with a nonassistance cooperative agreement or contract under such an agreement.
(b)(1) Cooperators shall acknowledge ARS, Economics Research Service (ERS), National Agricultural Statistics Service (NASS), and the Cooperative State Research, Education, and Extension Service (CSREES) support, whether cash or in-kind, in any publications written or published with Federal support and, if feasible, on any publication reporting the results of, or describing, a Federally supported activity as follows:
“This material is based upon work supported by the U.S. Department of Agriculture, (insert Agency name) under Agreement No. (Cooperator should enter the applicable agreement number here).”
(2) All such material must also contain the following disclaimer unless the publication is formally cleared by the awarding agency:
“Any opinions, findings, conclusion, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the view of the U.S. Department of Agriculture.”
(3) Any public or technical information related to work carried out under a non-assistance cooperative agreement shall be submitted by the developing party to the other for advice and comment. Information released to the public shall describe the contributions of both parties to the work effort. In the event of a dispute, a separate publication may be made with effective statements of acknowledgment and disclaimer.
(c) Media. Cooperators shall acknowledge awarding Agency support, as indicated in § 550.28 (b) above, in any form of media (print, DVD, audio production, etc.) produced with Federal support that has a direct production cost to the Cooperator of over $5,000. Unless the terms of the Federal award provide otherwise, this requirement does not apply to:
(1) Media produced under mandatory or formula grants or under sub awards.
(2) Media produced as research instruments or for documenting experimentation or findings and intended for presentation or distribution to a USDA/REE audience.
Press releases or other forms of public notification will be submitted to the REE agency for review prior to release to the public.
The REE Agency will be given the opportunity to review, in advance, all written press releases and any other written information to be released to the public by the Cooperator, and require changes as deemed necessary, if the material mentions by name the REE Agency or the USDA, or any USDA employee or research unit or location.
The Cooperator will not refer in any manner to the USDA or agencies thereof in connection with the use of the results of the project without prior specific written authorization by the awarding Agency. Information obtained as a result of the project will be made available to the public in printed or other forms by the awarding Agency at its discretion. The Cooperator will be given due credit for its cooperation in the project. Prior approval is required.
The Cooperator is required to submit to the REE Agency copies of questionnaires and other forms for clearance in accordance with the Paperwork Reduction Act of 1980 and 5 CFR part 1320.
(a) The Cooperator is responsible and accountable for the performance and conduct of all Cooperator employees assigned to the project. The REE Agency does not have authority to supervise Cooperator employees or engage in the employer employee relationship.
(b) The PI shall:
(1) Work jointly with the ADODR in the development of the project statement of work;
(2) Work jointly with the ADODR in the development of the project budget;
(3) Report, and obtain approval for, any change in the project budget;
(4) Report, and obtain approval for, any change in the scope or objectives of the project;
(5) Assure that technical project performance and financial status reports are submitted on a timely basis in accordance with the terms and conditions of the award;
(6) Advise the ADODR of any issues that may affect the timely completion of the project;
(7) Assure that the Cooperator meets its commitments under the terms and conditions of the non-assistance agreement;
(8) Assure that appropriate acknowledgements of support are included in all publications, in accordance with § 550.28 of this Part.
(9) Assure that inventions are appropriately reported in accordance with § 550.54 of this Part; and
(10) Upon request, provide the REE Agency with a project plan for use in for external peer review.
REE employees are prohibited from engaging in matters related to cooperator employer/employee relations such as personnel, performance and time management issues. The cooperator is solely responsible for the administrative supervision of its employees.
(a) The Cooperator bears the primary responsibility for prevention and detection of research misconduct and for the inquiry, investigation and adjudication of research misconduct alleged to have occurred in association with their own institution.
(b) The Cooperator shall:
(1) Maintain procedures for responding to allegations or instances of research misconduct that has the following components:
(2) Promptly conduct an inquiry into any allegation of research misconduct;
(3) Conduct an investigation if an inquiry determines that the allegation or apparent instance of research misconduct has substance;
(4) Provide appropriate separation of responsibilities between those responsible for inquiry and investigation, and those responsible for adjudication;
(5) Advise REE Agency of outcome at end of inquiries and investigations into allegations or instances of research misconduct; and
(6) Upon request, provide the REE Agency, upon request, hard copy (or Web site address) of their policies and procedures related to research misconduct.
(c) Research misconduct or allegations of research misconduct shall be reported to the USDA Research Integrity Officer (RIO) and/or to the USDA, Office of Inspector General (OIG) Hotline.
(1) The USDA RIO can be reached at: USDA Research Integrity Officer, 214-W Whitten Building, Washington, DC 20250, Telephone: 202-720-5923, E-mail:
(2) The USDA OIG Hotline can be reached on: 1-800-424-9121.
Cooperator employees, while engaged in work at the REE Agency's facilities, will abide by the Agency's standard operating procedures regarding the maintenance of laboratory notebooks, dissemination of information, equipment operation standards, hours of work, conduct, and other incidental matters stated in the rules and regulations of the Agency.
Sections 550.37 through 550.42 of this part set forth uniform standards governing management and disposition of property furnished by the Federal Government or acquired by the Cooperator with funds provided by the Federal Government. The Cooperator may use its own property management standards and procedures provided it observes other applicable provisions of this Part.
(a) As authorized by 7 U.S.C. 3318(d), title to expendable and nonexpendable equipment, supplies, and other tangible personal property purchased with Federal funding in connection with a non assistance cooperative agreement shall vest in the Cooperator from date of acquisition unless otherwise stated in the cooperative agreement.
(b) Notwithstanding any other provision of this rule the REE Agency may, at its discretion, retain title to equipment described in Paragraph (a) of this section that is or may be purchased with Federal funds when the REE agency determines that it is in the best interest of the Federal government.
(a) The Cooperator shall not use equipment acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long as the Federal Government retains an interest in the equipment.
(b) The Cooperator shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by Federal funds and shall not encumber the property without approval of the REE Agency. When no longer needed for the original project or program, the Cooperator shall use the equipment in connection with its' other federally-sponsored activities, in the following order of priority: (a) Activities sponsored by the REE Agency which funded the original project, then (b) activities sponsored by other Federal awarding agencies.
(c) During the time that equipment is used on the project or program for which it was acquired, the Cooperator shall make it available for use on other projects or programs if such other use will not interfere with the work on the project or program for which the equipment was originally acquired as may be determined by the REE Agency. First preference for such other use shall be given to other projects or programs sponsored by the REE Agency that financed the equipment; second preference shall be given to projects or programs sponsored by other Federal awarding agencies. If equipment is owned by the Federal Government, use on other activities not sponsored by the Federal Government shall be permissible if authorized by the REE Agency. User charges shall be treated as program income.
(d) When acquiring replacement equipment, unless otherwise directed by the REE Agency, the Cooperator shall use the equipment to be replaced as trade-in or sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the REE Agency.
(e) The Cooperator's property management standards for equipment acquired with Federal funds and federally owned equipment shall include all of the following.
(1) Equipment records shall be maintained accurately and shall include the following information:
(i) A description of the equipment;
(ii) Manufacturer's serial number, model number, Federal stock number, national stock number, or other identification number;
(iii) Source of the equipment, including the award number;
(iv) Whether title vests in the Cooperator or the Federal Government;
(v) Acquisition date (or date received, if the equipment was furnished by the Federal Government) and cost;
(vi) Information from which one can calculate the percentage of Federal participation in the cost of the equipment (not applicable to equipment furnished by the Federal Government);
(vii) Location and condition of the equipment and the date the information was reported;
(viii) Unit acquisition cost; and
(ix) Ultimate disposition data, including date of disposal and sales price or the method used to determine current fair market value where a Cooperator compensates the REE Agency for its share.
(2) Equipment owned by the Federal Government shall be identified to indicate Federal ownership.
(3) A physical inventory of equipment shall be taken and the results reconciled with the equipment records at least once every two years and a copy provided to the ADO responsible for the agreement. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The Cooperator shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment.
(4) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft of equipment shall be investigated and fully documented. If the Federal Government owns the equipment, the Cooperator shall promptly notify the REE Agency.
(5) Adequate maintenance procedures shall be implemented to keep the equipment in good condition.
(6) Where the Cooperator is authorized or required to sell the equipment, proper sales procedures shall be established which provide for competition to the extent practicable and result in the highest possible return.
(f) When the Cooperator no longer needs the equipment, the equipment shall be used for other activities in accordance with the following standards. For equipment with a current per unit fair market value of $5000 or more, the Cooperator may retain the equipment for other uses provided that
(1) If so instructed or if disposition instructions are not issued within 120 calendar days after the Cooperator's request, the Cooperator shall sell the equipment and reimburse the REE Agency an amount computed by applying to the sales proceeds the percentage of Federal participation in the cost of the original project or program. However, the Cooperator shall be permitted to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for the Cooperator's selling and handling expenses.
(2) If the Cooperator is instructed to ship the equipment elsewhere, the Cooperator shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the Cooperator's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred.
(3) If the Cooperator is instructed to otherwise dispose of the equipment, the Cooperator shall be reimbursed by the REE Agency for such costs incurred in its disposition.
(4) The REE Agency may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Such transfer shall be subject to the following standards.
(i) The equipment shall be appropriately identified in the award or otherwise made known to the Cooperator in writing.
(ii) The REE Agency shall issue disposition instructions within 120 calendar days after receipt of a final inventory. The final inventory shall list all equipment acquired with Federal funds and federally owned equipment. If the REE Agency fails to issue disposition instructions within the 120 calendar days, the Cooperator shall apply the standards of this section, as appropriate.
(iii) When the REE Agency exercises its right to take title, the equipment shall be subject to the provisions for federally owned equipment.
If required by the terms and conditions of the award, the Cooperator shall provide adequate insurance coverage for replacement of equipment acquired with Federal funds in the event of loss or damage to such equipment.
(a) Title to supplies and other expendable property shall vest in the Cooperator upon acquisition. If there is a residual inventory of unused supplies exceeding $5000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the Cooperator shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment.
(b) The Cooperator shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies.
Title to federally-owned property remains vested in the Federal Government. Cooperators shall submit annually an inventory listing of federally-owned property in their custody to the REE Agency. Upon completion of the award or when the property is no longer needed, the Cooperator shall report the property to the REE Agency for further Federal Agency utilization.
If the REE Agency has no further need for the property, it shall be declared excess and reported to the GSA, unless the REE Agency has statutory authority to dispose of the property by alternative methods (
(a) The Cooperator may copyright any work that is subject to copyright and was developed, by the Cooperator, or jointly by the Federal Government and the Cooperator, or for which ownership was purchased, under a cooperative agreement REE Agencies reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so for Federal purposes.
(b) Cooperators are subject to applicable regulations governing patents and inventions, including government-wide regulations issued by the Department of Commerce at 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements.”
(c) The REE Agency has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first produced under a cooperative agreement; and
(2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes.
(d)(1) In addition, in response to a Freedom of Information Act (FOIA) request for research data relating to published research findings produced under a cooperative agreement that were used by the Federal Government in developing an Agency action that has the force and effect of law, the REE Agency shall request, and the Cooperator shall provide, within a reasonable time, the research data so that they can be made available to the public through the procedures established under the FOIA. If the REE Agency obtains the research data solely in response to a FOIA request, the Agency may charge the requester a reasonable fee equaling the full incremental cost of obtaining the research data. This fee should reflect costs incurred by the Agency, the Cooperator, and applicable subrecipients. This fee is in addition to any fees the Agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
(2) The following definitions apply for purposes of paragraph (d) of this section:
(i) Research data is defined as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but not any of the following: preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. This “recorded” material excludes physical objects (
(A) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar information which is protected under law; and
(B) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study.
(ii) Published is defined as either when:
(A) Research findings are published in a peer-reviewed scientific or technical journal;
(B) A Federal Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law; or
(C) Used by the Federal Government in developing an Agency action that has the force and effect of law is defined as when an Agency publicly and officially cites the research findings in support of an Agency action that has the force and effect of law.
(e) All rights, title, and interest in any Subject Invention made solely by employee(s) of the REE Agency shall be owned by the REE Agency. All rights, title, and interest in any Subject Invention made solely by at least one (1) Employee of the REE Agency and at least one (1) employee of the Cooperator shall be jointly owned by the Agency and the Cooperator, subject to the provisions of 37 CFR part 401.
(f) REE Agencies shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States the subject invention throughout the world.
Sections 44 through 50 set forth standards for use by Cooperators in establishing procedures for the procurement of supplies and other expendable property, equipment and other services with Federal funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. No additional procurement standards or requirements shall be imposed by the Federal awarding agencies upon Cooperators, unless specifically required by Federal statute or executive order or approved by OMB.
The standards contained in this section do not relieve the Cooperator of the contractual responsibilities arising under its' contract(s). The Cooperator is the responsible authority, without recourse to the REE Agency, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of a nonassistance agreement. This includes disputes, claims, award protests, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority, as may have proper jurisdiction.
The Cooperator shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the Cooperator shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, Cooperators may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the Cooperator.
(a) All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The Cooperator shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the Cooperator, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offer shall fulfill in order for the bid or offer to be evaluated by the Cooperator. Any and all bids or offers may be rejected when it is in the Cooperator's interest to do so.
(b) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by agencies' implementation of Executive Orders 12549 and 12689, “Debarment and Suspension.”
(c) Recipients shall, on request, make available for the REE Agency, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc.
Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability.
Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum: (a) Basis for contractor selection, (b) justification for lack of competition when competitive bids or offers are not obtained, and (c) basis for award cost or price.
A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract.
The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts.
(a) Contracts in excess of the simplified acquisition threshold shall contain contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate.
(b) All contracts in excess of the simplified acquisition threshold shall contain suitable provisions for termination by the cooperator, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor.
(c) All negotiated contracts (except those for less than the simplified acquisition threshold) awarded by recipients shall include a provision to the effect that the recipient, the REE Agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions.
(d) All contracts, including small purchases, awarded by recipients and their contractors shall contain the procurement provisions of Appendix A, 2 CFR part 215, as applicable.
Sections 550.52 through 550.55 of this part set forth the procedures for monitoring and reporting on the Cooperator's financial and program performance and the necessary reporting format. They also set forth record retention requirements, and property and equipment inventory reporting requirements.
(a) The REE Agency shall prescribe the frequency with which performance reports shall be submitted. Performance reports shall not be required more frequently than quarterly or, less frequently than annually. Annual reports shall be due 90 calendar days after the grant year; quarterly or semi-annual reports shall be due 30 days after the reporting period. The REE Agency may require annual reports before the anniversary dates of multiple year agreements in lieu of these requirements. The final performance reports are due 90 calendar days after the expiration or termination of the period of agreement.
(b) When required, performance reports shall contain, for each award, detailed information on each of the following.
(1) A comparison of actual accomplishments with the goals and objectives established for the period and the findings of the investigator. Whenever appropriate and the output of programs or projects can be readily quantified, such quantitative data should be related to cost data for computation of unit costs.
(2) Reasons why established goals were not met, if appropriate.
(3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs.
(c) Cooperators shall not be required to submit more than the original and two copies of performance reports.
(d) Cooperators shall immediately notify the REE Agency of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation.
Financial Status Report.
(a) Each REE Agency shall require Cooperators to report the status of funds as approved in the budget for the cooperative agreement. A financial status report shall consist of the following information:
(1) The name and address of the Cooperator.
(2) The name and address of the PI.
(3) The name, address, and signature of the financial officer submitting the report.
(4) A reference to the cooperative agreement.
(5) Period covered by the report.
(6) An itemization of actual dollar amounts expended on the project during the reporting period (in line with the approved budget) and cumulative totals expended for each budget category from the starting date of the cooperative agreement.
(b) The REE Agency shall determine the frequency of the Financial Status Report for each project or program, considering the size and complexity of the particular project or program. However, the report shall not be required more frequently than quarterly or less frequently than annually. A final report shall be required at the completion of the agreement.
(c) The REE Agency shall require Cooperators to submit the financial status report (an original and no more than two copies) no later than 30 days after the end of each specified reporting period for quarterly and semi-annual reports, and 90 calendar days for annual and final reports. Extensions of reporting due dates may be approved by the REE Agency upon request of the Cooperator.
(a) The Cooperator shall report Invention Disclosures and Utilization information electronically via i-Edison Web Interface at:
(b) If access to InterAgency Edison is unavailable, the invention disclosure should be sent directly to: DEITR, National Institutes of Health, 6701 Rockledge Drive, Room 3175, MSC 7750, Bethesda, Maryland 20892-7750.
(a) This section sets forth requirements for record retention and access to records for awards to Cooperators. REE agencies shall not impose any other record retention or access requirements upon Cooperators, excepting as set out in 550.42(d).
(b) Financial records, supporting documents, statistical records, and all other records pertinent to an award shall be retained for a period of 3 years from the date of submission of the final expenditure report or, for awards that are renewed quarterly or annually, from the date of the submission of the quarterly or annual financial report, as authorized by the REE Agency. The only exceptions are the following:
(1) If any litigation, claim, or audit is started before the expiration of the 3-
(2) Records for real property and equipment acquired with Federal funds shall be retained for 3 years after final disposition;
(3) When records are transferred to or maintained by the REE Agency, the 3-year retention requirement is not applicable to the Cooperator;
(4) Indirect cost rate proposals, cost allocations plans, etc. as specified in paragraph (f) of this section.
(c) Copies of original records may be substituted for the original records if authorized by the REE Agency.
(d) The REE Agency shall request transfer of certain records to its custody from Cooperators when it determines that the records possess long-term retention value. However, in order to avoid duplicate record keeping, a REE Agency may make arrangements for Cooperators to retain any records that are continuously needed for joint use.
(e) The REE Agency, the Inspector General, Comptroller General of the United States, or any of their duly authorized representatives, have the right of timely and unrestricted access to any books, documents, papers, or other records of Cooperators that are pertinent to the awards, in order to make audits, examinations, excerpts, transcripts and copies of such documents. This right also includes timely and reasonable access to a Cooperator's personnel for the purpose of interview and discussion related to such documents. The rights of access in this paragraph are not limited to the required retention period, but shall last as long as records are retained.
(f) No cooperator shall disclose its records that are pertinent to an award until the cooperator provides notice of the intended disclosure with copies of the relevant records to the REE Agency.
(g)
(1)
(2)
Sections 550.57 and 550.58 of this part set forth uniform suspension, termination, and enforcement procedures.
Awards may be suspended or terminated in whole or in part if 550.57(a), (b), or (c) apply.
(a) The REE Agency may terminate the award, if a Cooperator materially fails to comply with the provisions of this rule or the terms and conditions of an award.
(b) The REE Agency with the consent of the Cooperator, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated.
(c) If costs are allowed under an award, the responsibilities of the Cooperator referred to in § 550.32, including those for property management as applicable, shall be considered in the termination of the award, and provision shall be made for continuing responsibilities of the Cooperator after termination, as appropriate.
(a) Remedies for noncompliance. If a Cooperator materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, the REE Agency may, in addition to imposing any of the special conditions outlined in § 550.10, take one or more of the following actions.
(1) Temporarily withhold cash payments pending correction of the deficiency by the Cooperator or more severe enforcement action by the REE Agency.
(2) Disallow all or part of the cost of the activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the project or program.
(5) Take other remedies that may be legally available.
(b) Effects of suspension and termination. Costs of a Cooperator resulting from obligations incurred by the Cooperator during a suspension or after termination of an award are not allowable unless the REE Agency expressly authorizes them in the notice of suspension or termination or thereafter. Other Cooperator costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if § 550.58 (1) and (2) apply.
(1) The costs result from obligations which were properly incurred by the Cooperator before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are non-cancellable.
(2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect.
(3) Relationship to debarment and suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude a Cooperator from being subject to debarment and suspension under Executive Orders 12549 and 12689 and USDA implementing regulations (7 CFR Part 3017).
Sections 550.60 through 550.62 of this part contain closeout procedures and other procedures for subsequent disallowances and adjustments.
(a) Cooperators shall submit, within 90 calendar days after the date of completion of the award, all financial, performance, and other reports as required by the terms and conditions of the award. The REE Agency may approve extensions to the reporting period when requested by the Cooperator.
(b) Unless the REE Agency authorizes an extension, a Cooperator shall liquidate all obligations incurred under the award not later than 90 calendar days after the funding period or the date of completion as specified in the terms and conditions of the award or in Agency implementing instructions.
(c) The REE Agency shall make prompt payments to a Cooperator for allowable reimbursable costs under the award being closed out.
(d) The Cooperator shall promptly refund any balance of unobligated cash advanced or paid by the REE Agency that it is not authorized to retain for use in other projects. OMB Circular A-129 governs unreturned amounts that become delinquent debts.
(e) When authorized by the terms and conditions of the award, the REE Agency shall make a settlement for any upward or downward adjustments to the Federal share of costs after closeout reports are received.
(f) The Cooperator shall account for any personal property acquired with Federal funds or received from the Federal Government in accordance with § 550.36 through § 550.42.
(g) In the event a final audit has not been performed prior to the closeout of an award, the REE Agency shall retain the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.
The closeout of an award does not affect any of the following.
(a) The right of the REE Agency to disallow costs and recover funds on the basis of a later audit or other review.
(b) The obligation of the Cooperator to return any funds due as a result of later refunds, corrections, or other transactions.
(c) Audit requirements in § 550.24.
(d) Property management requirements in § 550.36 through § 550.42.
(e) Records retention as required in § 550.56.
(a) Any funds paid to a Cooperator in excess of the amount to which the Cooperator is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, the REE Agency may in accordance with 7 CFR Part 3, reduce the debt by—
(1) Making an administrative offset against other requests for reimbursements or
(2) Withholding advance payments otherwise due to the Cooperator, or
(3) Taking other action permitted by statute.
(b) Except as otherwise provided by law, the REE Agency shall charge interest on an overdue debt in accordance with 31 CFR Part 900, “Federal Claims Collection Standards.”
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Thrush Aircraft, Inc. (Thrush) Model S2R series airplanes. This proposed AD would require repetitive visual inspections of the vertical and horizontal stabilizer attach fitting, attach fitting bolts, and the vertical fin aft spar for cracks or corrosion and require immediate replacement of cracked or corroded parts and eventual replacement if no cracks or corrosion is found as terminating action for the repetitive inspections. This proposed AD results from reports of cracks in the empennage of Thrush S2R series airplanes. We are proposing this AD to detect and correct these cracks, which could cause the vertical stabilizer to lose structural integrity. This condition could lead to loss of control.
We must receive comments on this proposed AD by September 24, 2007.
Use one of the following addresses to comment on this proposed AD:
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•
•
•
•
For service information identified in this proposed AD, contact: Thrush Aircraft, Inc., P.O. Box 3149, 300 Old Pretoria Road, Albany, Georgia 31706-3149; telephone: 229-883-1440; facsimile: 229-436-4856; or on the Internet at:
We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of cracks in the empennage of Thrush S2R series airplanes. Cracks may occur in the vertical stabilizer attach fitting, the horizontal stabilizer attach fitting, attach fitting bolts, and/or the vertical fin aft spar on airplanes with metal empennages. A metallurgy report suggests stress corrosion cracking is the
This condition, if not corrected, could cause the vertical stabilizer to lose structural integrity. This condition could lead to loss of control.
We have reviewed Thrush Aircraft, Inc., Service Bulletin No. SB-AG-45, Revision B, dated June 1, 2007. The service information describes procedures for inspecting and upgrading the fin spar and attach fittings.
We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require repetitive visual inspections of the vertical and horizontal stabilizer attach fitting, attach fitting bolts, and the vertical fin aft spar for cracks or corrosion and require immediate replacement of cracked or corroded parts and eventual replacement if no cracks or corrosion is found as terminating action for the repetitive inspections.
Thrush Aircraft, Inc. SB-AG-45, Revision B, dated June 1, 2007, recommends an immediate initial inspection. We consider immediately upon receipt action to be an urgent safety of flight compliance time. Because our risk assessment does not indicate this unsafe condition to be an urgent safety of flight condition, we propose to require an initial inspection within the next 50 hours time-in-service (TIS). The initial inspection time of 50 hours TIS is an adequate compliance for this AD action and meets the FAA requirements of an NPRM.
We propose to require a terminating action of replacing the parts within the next 2 years or 2,000 hours TIS, whichever occurs first. This is recommended because there is historic evidence that inspections alone can eventually miss detecting a crack.
We estimate that this proposed AD would affect 910 airplanes in the U.S. registry.
We estimate the following costs to do the proposed inspection:
We estimate the following costs to do any necessary replacements of the vertical fin aft spar that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement:
We estimate the following costs to replace the vertical and horizontal stabilizer attach fittings and attachment bolt:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that the proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. The FAA amends § 39.13 by adding the following new AD:
(a) We must receive comments on this airworthiness directive (AD) action by September 24, 2007.
(b) None.
(c) This AD applies to the following airplane models and serial numbers that are certificated in any category and are equipped with metal empennage part numbers (P/N) 40220 or 95400 (applies to serial numbers with or without a “DC” suffix):
(d) This proposed AD results from reports of cracks in the empennage of Thrush Aircraft, Inc., S2R series airplanes. We are proposing this AD to detect and correct these cracks, which could cause the vertical stabilizer to lose structural integrity. This condition could lead to loss of control.
(e) To address this problem, you must do the following, unless already done:
(f) Under 14 CFR part 39.23, we are limiting the special flight permits authorized for this AD to ferry aircraft to a maintenance facility for inspection by the following conditions:
(1) Hopper must be empty.
(2) Vne reduced to 126 m.p.h. (109 knots); and
(3) No flight into known turbulence.
(g) The Manager, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Cindy Lorenzen, Aerospace Engineer, ACE-115A, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Blvd., Suite 450, Atlanta, GA 30349; telephone: (770) 703-6078; facsimile: (770) 703-6097; e-mail:
(h) To get copies of the service information referenced in this AD, contact Thrush Aircraft, Inc., P.O. Box 3149, 300 Old Pretoria Road, Albany, Georgia 31706-3149; telephone: 229-883-1440; facsimile: 229-436-4856; or on the Internet at:
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking by cross-reference to temporary regulations.
This document contains corrections to notice of proposed rulemaking by cross-reference to temporary regulations (REG-149036-04) that were published in the
Stuart Spielman, (202) 622-7950 (not a toll-free number).
The notice of proposed rulemaking by cross-reference to temporary regulations that are the subject of this correction are under section 6404(g) of the Internal Revenue Code.
As published, proposed regulations (REG-149036-04) contains an error that may prove to be misleading and is in need of clarification.
Accordingly, the publication of the proposed regulations (REG-149036-04), which was the subject of FR Doc. E7-12085, is corrected as follows:
On page 34204, column 1, in the preamble, under the caption
Internal Revenue Service (IRS), Treasury.
Correction to notice of proposed rulemaking.
This document contains corrections to the notice of proposed rulemaking (REG-149036-04) that were published in the
Stuart Spielman, (202) 622-7950 (not a toll-free number).
The notice of proposed rulemaking that is the subject of this correction is under section 6404(g) of the Internal Revenue Code.
As published, the proposed regulations (REG-149036-04) contain errors that may prove to be misleading and are in need of clarification.
Accordingly, the publication of the proposed regulations (REG-149036-04), which was the subject of FR Doc. E7-12082, is corrected as follows:
1. On page 34200, column 1, in the preamble, under the caption
2. On page 34200, column 2, in the preamble, under the paragraph heading “Background”, line 8, the language “Law 110-28 (121 Stat. 112, 200),” is corrected to read “Law 110-28 (121 Stat. 190, 200),”.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Announcement of availability of fishery management plan amendment; request for comments.
NMFS announces the Gulf of Mexico Fishery Management Council (Council) has submitted a joint Amendment 14 to the Fishery Management Plan (FMP) for the Shrimp Fishery of the Gulf of Mexico and Amendment 27 to the FMP for the Reef Fish Resources of the Gulf of Mexico for review, approval, and implementation by NMFS. Amendment 14/27 proposes actions to reduce the red snapper catch, bycatch, and discard mortality in the directed commercial and recreational fisheries and the shrimp fishery. The intended effect of joint Amendment 14/27 is to end overfishing for red snapper between 2009 and 2010 and rebuild the stock by 2032 in compliance with the red snapper rebuilding plan.
Written comments must be received no later than 5 p.m., eastern time, on September 24, 2007.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-Rulemaking Portal:
• Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13
• Fax: 727-824-5308, Attention: Peter Hood.
Copies of joint Amendment 14/27, which includes an Environmental Impact Statement, a Regulatory Impact Review, and an Initial Regulatory Flexibility Analysis, are available in electronic format from the Council's web site at
Mr. Peter Hood, 727-824-5305; fax 727-824-5308; e-mail:
The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires each Regional Fishery Management Council to submit any fishery management plan or amendment to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving a plan or amendment, publish an announcement in the
Elements of Amendment 14/27 constitute a revised rebuilding plan that has at least a 50-percent probability of rebuilding the red snapper stock by 2032. Proposed actions focus around a reduction in red snapper total allowable catch to 5 million lb (2.3 million kg). This would result in a commercial quota of 2.55 million lb (1.16 million kg) and a recreational quota of 2.45 million lb (1.11 million kg). Recreational bag limits would be reduced from four fish to two fish; the bag limit for captain and crew of for-hire vessels would be set at zero. The commercial minimum size limit would be reduced to 13 inches (33 cm) total length with the intent of reducing regulatory discards. To reduce discard mortality in the directed fisheries, Amendment 14/27 proposes an action to require the use of venting tools, dehooking devices, and non-stainless steel circle hooks (when using natural baits) for all reef fish fishery sectors. In addition, the amendment would establish a target reduction goal for shrimp trawl bycatch mortality on red snapper, establish options for time-area closures for the shrimp fishery that would maintain the target reduction goal, and establish a framework whereby NMFS could implement such closures in a timely fashion.
Length of the recreational fishing season will be determined by a number of factors. The proposed two-fish bag limit alone would allow a June 1 through September 15 (107 days) recreational fishing season. In addition to the two-fish bag limit, constraining the captain and crew of for-hire vessels to a zero-fish bag limit would allow the fishing season to be extended through the end of September (122 days). Based on extensive public comment, the Council chose to assume a 10-percent reduction in post-hurricane fishing effort and landings when evaluating recreational management measures. Application of this assumption, along with implementation of the two-fish bag limit and the zero-fish captain and crew limit of for-hire vessels, would allow the recreational fishing season to extend from May 15 through October 15 (154 days). This assumption is controversial because although preliminary data suggest some declines have occurred since the 2005 hurricane season, the magnitude of reductions varies- by fishing sector, is often less than 10 percent, and in some cases effort or landings have increased. Further, it is unknown how long post-hurricane reductions in landings and fishing effort may continue as the fisheries recover. Therefore, NMFS is specifically requesting comments on the assumed 10-percent reduction in effort and landings as proposed in Amendment 27/14, which would affect the designation of the length of the recreational fishing season established by this rule.
A proposed rule that would implement measures outlined in joint Amendment 14/27 has been received from the Council. In accordance with the Magnuson-Stevens Act, NMFS is evaluating the proposed rule to determine whether it is consistent with the FMP, the Magnuson-Stevens Act, and other applicable law. If that determination is affirmative, NMFS will publish the proposed rule in the
Comments received by September 24, 2007, whether specifically directed to the amendment or the proposed rule, will be considered by NMFS in its decision to approve, disapprove, or partially approve the amendment. Comments received after that date will not be considered by NMFS in this decision. All comments received by NMFS on the amendment or the proposed rule during their respective comment periods will be addressed in the final rule.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of availability of proposed fishery management plan amendment; request for comments.
NMFS announces that the Mid-Atlantic and New England Fishery Management Councils (Councils) have submitted an Omnibus Amendment to the Fishery Management Plans (FMPs) of the Northeast Region to establish a Standardized Bycatch Reporting Methodology (SBRM), incorporating a draft Environmental Assessment (EA) and preliminary Regulatory Impact Review (RIR), for review by the Secretary of Commerce, and is requesting comments from the public.
The SBRM Amendment would establish an SBRM for all 13 Northeast Region FMPs, as required under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The proposed measures include: Bycatch reporting and monitoring mechanisms; analytical techniques and allocation of at-sea fisheries observers; an SBRM performance standard; a review and reporting process; framework adjustment and annual specifications provisions; a prioritization process; and provisions for industry-funded observers and observer set-aside programs.
Comments must be received on or before September 24, 2007.
You may submit comments by any of the following methods:
• E-mail:
• Federal e-rulemaking portal:
• Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on the SBRM Omnibus Amendment.”
• Fax: (978) 281-9135
Copies of the SBRM Amendment, and of the draft Environmental Assessment and preliminary Regulatory Impact Review (EA/RIR), are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790; and from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. The EA/RIR is also accessible via the Internet at
Michael Pentony, Senior Fishery Policy Analyst, 978-281-9283.
The Magnuson-Stevens Act requires that each Regional Fishery Management Council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish notification in the
Section 303(a)(11) of the Magnuson-Stevens Act requires that all FMPs “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery.” In 2004, several conservation organizations challenged the approval of two major amendments to Northeast Region FMPs. In ruling on these suits, the U.S. District Court for the District of Columbia found that the FMPs did not clearly establish an SBRM as required under this section and remanded the amendments back to the agency to fully develop and establish the required SBRM. In particular, the Court found that the amendments (1) failed to fully evaluate reporting methodologies to assess bycatch, (2) did not mandate an SBRM, and (3) failed to respond to potentially important scientific evidence.
In response, the Councils, working closely with NMFS, undertook development of a remedy that would address all Northeast Region FMPs. In January 2006, development began on the Northeast Region Omnibus SBRM Amendment. This amendment covers 13 FMPs, 39 managed species, and 14 types of fishing gear. The purpose of the amendment is to: Explain the methods and processes by which bycatch is currently monitored and assessed for Northeast Region fisheries; determine whether these methods and processes need to be modified and/or supplemented; establish standards of precision for bycatch estimation for all Northeast Region fisheries; and, thereby, document the SBRM established for all fisheries managed through the FMPs of the Northeast Region. The amendment also responds to the “potentially important scientific evidence” cited by the Court in the two decisions referenced above.
The Northeast Region SBRM Amendment would establish an SBRM comprised of seven elements: (1) The methods by which data and information on discards are collected and obtained; (2) the methods by which the data obtained through the mechanisms identified in element 1 are analyzed and utilized to determine the appropriate allocation of at-sea observers; (3) a performance measure by which the effectiveness of the Northeast Region SBRM can be measured, tracked, and utilized to effectively allocate the appropriate number of observer sea days; (4) a process to provide the Councils with periodic reports on discards occurring in Northeast Region fisheries and on the effectiveness of the SBRM; (5) a measure to enable the Councils to make changes to the SBRM through framework adjustments and/or annual specification packages rather than full FMP amendments; (6) a process to provide the Councils, and the
Public comments are being solicited on the SBRM Amendment and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement the SBRM Amendment will be published in the
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Form FD-210 is submitted by owners of cotton to request cotton classification services. The request contains information for USDA to ascertain proper ownership of the samples submitted, to distribute classification results, and bill for services. Information about the origin and handling of the cotton is necessary in order to properly evaluate and classify the samples.
Form CN-246 is submitted by cotton gins and warehouses seeking to serve as licensed samplers. Licenses issued by the USDA-AMS Cotton Program authorize the warehouse/gin to draw and submit samples to insure the proper application of standards in the classification of cotton and to prevent deception in their use.
Form CN-383 is a package of forms designated as CN-383-a through CN-383-k that is submitted by cotton producers, ginners, warehousemen, cooperatives, manufacturers, merchants, and crushers interested in acquiring cotton classification standards and round testing services.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995,
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Farm Service Agency, USDA.
Notice; request for comments.
In accordance with the Paperwork Reduction Act of 1995, the Farm Service Agency (FSA) is seeking comments from all interested individuals and organizations on the revision of currently approved information collection associated with the Emergency Conservation Program (ECP).
Comments on this notice must be received on or before September 24, 2007 to be assured consideration.
We invite you to submit comments on this Notice. In your comment, include the volume, date, and page number of this issue of the
Comments also should be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.
Clayton Furukawa, ECP Program Manager, (202) 690-0571.
Comments are invited on:
(1) Whether this collection information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of burden, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of the information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public records. Comments will be summarized and included in the submission for Office of Management and Budget approval.
Forest Service, USDA.
Corralled Bear, Clearwater National Forest, Latah County, ID.
Notice of intent to prepare an environmental impact statement.
The USDA, Forest Service, will prepare an Environmental Impact Statement (EIS) to disclose the environmental effects of timber harvest, prescribed fire, fuels reduction, watershed restoration, and access management activities in the Corralled Bear project area on the Palouse Ranger District of the Clearwater National Forest. The Corralled Bear project area is located north of the towns of Deary and Helmer within the East Fork of Big Bear Creek and Corral Creek drainages, approximately 21 air-miles northeast of the town of Moscow, Idaho.
This project was previously scoped in March 2006, and the comments received will be included in the documentation for the EIS. A 45-day public comment period will follow the release of the draft environmental impact statement (DEIS) that is expected in September 2007. The final environmental impact statement (FEIS) and Record of Decision (ROD) is expected in February 2008.
The Corralled Bear project area contains approximately 11,318 acres, which is all National Forest lands except for 160 acres of private land. The project area is located in portions of T40N, R1W; T40N, R2W; T41N, R1W; and T41N, R2W, Boise Meridian, Latah County, Idaho. The proposed actions would occur on National Forest lands and are all outside the boundaries of any inventoried roadless area or any areas considered for inclusion to the National Wilderness System as recommended by the Clearwater National Forest Plan or by any past or present legislative wilderness proposals.
The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions.
To assist the Forest Service in identifying and considering issues and concerns on the proposed action, comments on the draft environmental impact statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the draft environmental impact statement or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points.
Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection.
Written comments and suggestions concerning this project should be sent to: Kara Chadwick, District Ranger, Palouse Ranger District, 1700 Highway 6, Potlatch, ID 83855 or e-mailed to:
Tam White; Project Leader, North Fork Ranger District, at:
Forest Service, USDA.
Notice of Meeting.
The Tehama County Resource Advisory Committee (RAC) will meet in Red Bluff, California. Agenda items to be covered include: (1) Introductions, (2) Approve Minutes, (3) Public Comment, (4) Project Proposals/Action, (5) Chairman's Perspective, (6) General Discussion, (7) Next Agenda.
The meeting will be held on August 9, 2007 from 9 a.m. and end at approximately 12 p.m.
The meeting will be held at the Lincoln Street School, Pine Room, 1135 Lincoln Street, Red Bluff, CA. Individuals wishing to speak or propose agenda items must send their names and proposals to Eduardo Olmedo, DFO, 825 N. Humboldt Ave., Willows, CA 95988.
Bobbin Gaddini, Committee Coordinator, USDA, Mendocino National Forest, Grindstone Ranger District, P.O. Box 164, Elk Creek, CA 95939. (530) 968-5329; e-mail
The meeting is open to the public. Committee discussion is limited to Forest Service staff and Committee members. However, persons who wish to bring matters to the attention of the Committee may file written statements with the Committee staff before or after the meeting. Public input sessions will be provided and individuals who made written requests by August 5, 2007 will have the opportunity to address the committee at those sessions.
Forest Service, USDA.
Notice of meeting.
Pursuant to the authorities in the Federal Advisory Committee Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Caribou-Targhee National Forests' Eastern Idaho Resource Advisory Committee will meet Thursday, September 13, 2007 in Idaho Falls for a business meeting. The meeting is open to the public.
The business meeting will be held on September 13, 2007 from 9 a.m. to 11 a.m.
The meeting location is the Caribou-Targhee National Forest Headquarters Office, 1405 Hollipark Drive, Idaho Falls, Idaho 83402.
Larry Timchak, Caribou-Targhee National Forest Supervisor and Designated Federal Officer, at (208) 524-7500.
The business meeting on September 13, 2007, begins at 9 a.m., at the Caribou-Targhee National Forest Headquarters Office, 1405 Hollipark Drive, Idaho Falls, Idaho. Agenda topics will include approving projects for 2008 funding, and then heading into the field for a field trip to view past projects completed.
The Department of Commerce (DOC) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, e-mail address,
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The Act directs NTIA to administer a program through which an eligible low-power television or translator station may receive compensation toward the cost of the purchase of a digital-to-analog conversion device that enables the conversion of the incoming digital signal of its corresponding full-power television station to analog format for transmission on the station's analog channels.
The application makes possible the required review process for selecting applicants are funded.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 6625, 1401 Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Jasmeet Seehra, OMB Desk Officer, e-mail
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Neal E. McArthur, 4600 Silver Hill Rd., Room 5H036B, Suitland, MD 20746 (or via the Internet at
The BC-170A, BC-170B, and the BC-170D are used to collect information such as personal data and work experience from job applicants. Selecting officials review the information shown on the form to evaluate an applicant's eligibility for employment and to determine the best-qualified applicants to fill Census jobs. The three forms are tailored to the particular job type for which application is made.
The BC-170 series of forms is used throughout the census and intercensal periods for the special census, pretests, and dress rehearsals for short-term time limited appointments. Applicants completing the form for census related positions are applying for temporary jobs in office and field positions (clerks, enumerators, crew leaders, supervisors). In addition, the BC-170 may be used as an alternative when applying for temporary/permanent office and field positions (clerks, field representatives, supervisors) on a recurring survey in one of the Census Bureau's twelve Regional Offices (ROs) throughout the United States. During the decennial census, the BC-170 is intended to expedite hiring and selection in situations requiring large numbers of temporary employees for assignments of a limited duration. The use of this form is limited to only situations which require the establishment of a temporary office and/or involve special, one-time or recurring survey operations at one of the ROs. The form has been demonstrated to meet our recruitment needs for temporary workers and requires significantly less burden than the Office of Personnel Management (OPM) Optional Forms that are available for use by the public when applying for Federal positions.
The information is collected in paper format at the time of testing for temporary and permanent positions. Potential employees being tested complete the application at that time.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Scott Handmaker, Chief, Economic Classifications Operations Branch, U.S. Census Bureau, 8K149, Washington, DC 20233, Telephone: 301-763-7107; E-mail:
The Business and Professional Classification Report survey, (Form SQ-CLASS) collects information about new businesses to properly classify them for Census Bureau economic surveys. The survey samples businesses with newly assigned Employer Identification Numbers (EINs) from the Internal Revenue Service (IRS) quarterly, on the SQ-CLASS form. This survey is conducted only once for each new business that is sampled. The SQ-CLASS form collects minimum data about a business on such areas as: primary business activity, EIN verification, company structure, size, and business operations. This information is used to replenish the Census Bureau survey universe with properly classified new businesses, updated administrative information, and current business data, which reduce respondent burdens to Census surveys and assure high quality economic estimates.
The Census Bureau plans only minimal changes to the form and instruction sheet. The wording of the questions and instructions for both sales and inventory will be reworded to be in line with the Census Bureau's monthly and annual surveys.
The information will be collected by mail, fax, and telephone follow-up.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Economic Development Administration, Department of Commerce.
Notice and Opportunity for Public Comment.
Pursuant to Section 251 of the Trade Act of 1974 (19 U.S.C. 2341
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Office of Performance Evaluation, Room 7009, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. Please follow the procedures set forth in Section 315.9 of EDA's final rule (71 FR 56704) for procedures for requesting a public hearing. The Catalog of Federal Domestic Assistance official program number and title of the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance.
International Trade Administration, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th & Constitution Avenue, NW, Washington, DC 20230 or via Internet at
Request for additional information or copies of the information collection instrument and instructions should be directed to: Faye Robinson, Statutory Import Programs Staff, Room 2104, U.S. Department of Commerce, Washington, DC 20230; Phone number (202) 482-1660, fax number (202) 482-0949.
Congress, enacted legislation to implement the Nairobi Protocol to the Florence Agreement, included a provision for the Departments of Commerce and Homeland Security (“DHS”) to collect information on the import of articles for the handicapped. Form ITA-362P, Information on Articles for Physically and Mentally Handicapped Persons Imported Free of Duty, is the vehicle by which statistical information is obtained to assess whether the duty-free treatment of articles for the handicapped has had a significant adverse impact on a domestic industry (or portion thereof) manufacturing or producing a like or directly competitive article. Without the collection of data, it would be almost impossible for a sound determination to
A copy of Form ITA-362P may be printed from on the Department of Commerce's Web site at
Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and costs) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates. In accordance with the Department's regulations, we are initiating those administrative reviews. The Department also received a request to revoke one antidumping duty order in part.
July 26, 2007.
Sheila E. Forbes, Office of AD/CVD Operations, Customs Unit, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230, telephone: (202) 482-4697.
The Department has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with June anniversary dates. The Department also received timely requests to revoke in part the antidumping duty order on Folding Metal Tables and Chairs from the People's Republic of China.
In accordance with section 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than June 30, 2008.
None.
None.
During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine, consist with
Interested parties must submit applications for disclosure under administrative protective orders in accordance with 19 CFR 351.305.
These initiations and this notice are in accordance with section 751(a) of the Tariff Act of 1930, as amended (19 U.S.C. 1675(a)), and 19 CFR 351.221(c)(1)(i).
Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is currently conducting the semi-annual 2006 new shipper review of the antidumping duty order on certain frozen warmwater shrimp (“shrimp”) from the People's Republic of China (“PRC”). We preliminarily determine that Maoming Changxing Foods Co., Ltd. (“Maoming Changxing”) has failed to demonstrate its eligibility for a separate rate in this new shipper review. Therefore, we have preliminarily determined that this new shipper review should be rescinded. Interested parties are invited to comment on this preliminary notice of intent to rescind.
July 26, 2007.
Anya Naschak, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-6375.
The Department received a timely request from Maoming Changxing, in accordance with 19 CFR 351.214(c), for a new shipper review of the antidumping duty order on shrimp from the PRC.
On September 22, 2006, the Department found that the request for review with respect to Maoming Changxing met all of the regulatory requirements set forth in 19 CFR 351.214(b) and initiated an antidumping duty new shipper review covering the period February 1, 2006, through July 31, 2006.
On March 13, 2007, the Department extended the deadline for the preliminary results of the new shipper review until July 19, 2007.
On September 27, 2006, we issued an antidumping duty questionnaire to Maoming Changxing.
On April 2, 2007, the Department provided parties with an opportunity to submit publicly available information
The POR for this new shipper review is February 1, 2006, through July 31, 2006.
The Department conducted verification of Maoming Changxing's questionnaire responses between May 21, 2007, and May 23, 2007, at Maoming Changxing's facility in Maoming, Guangdong, PRC. We used standard verification procedures, including on-site inspection of the exporter's manufacturing and sales facilities, and examination of relevant sales and financial records. Our verification results are outlined in the verification report. For a further discussion,
The scope of this order includes certain frozen warmwater shrimp and prawns, whether wild-caught (ocean harvested) or farm-raised (produced by aquaculture), head-on or head-off, shell-on or peeled, tail-on or tail-off, deveined or not deveined, cooked or raw, or otherwise processed in frozen form.
The frozen warmwater shrimp and prawn products included in the scope of this investigation, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products which are processed from warmwater shrimp and prawns through freezing and which are sold in any count size.
The products described above may be processed from any species of warmwater shrimp and prawns. Warmwater shrimp and prawns are generally classified in, but are not limited to, the Penaeidae family. Some examples of the farmed and wild-caught warmwater species include, but are not limited to, white-leg shrimp (Penaeus vannemei), banana prawn (Penaeus merguiensis), fleshy prawn (Penaeus chinensis), giant river prawn (Macrobrachium rosenbergii), giant tiger prawn (Penaeus monodon), redspotted shrimp (Penaeus brasiliensis), southern brown shrimp (Penaeus subtilis), southern pink shrimp (Penaeus notialis), southern rough shrimp (Trachypenaeus curvirostris), southern white shrimp (Penaeus schmitti), blue shrimp (Penaeus stylirostris), western white shrimp (Penaeus occidentalis), and Indian white prawn (Penaeus indicus).
Frozen shrimp and prawns that are packed with marinade, spices or sauce are included in the scope of this investigation. In addition, food preparations, which are not “prepared meals,” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of this investigation.
Excluded from the scope are: (1) Breaded shrimp and prawns ( HTS subheading 1605.20.10.20); (2) shrimp and prawns generally classified in the Pandalidae family and commonly referred to as coldwater shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on or peeled (HTS subheadings 0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (HTS subheading 1605.20.05.10); (5) dried shrimp and prawns; (6) Lee Kum Kee's shrimp sauce; (7) canned warmwater shrimp and prawns (HTS subheading 1605.20.10.40); (8) certain dusted shrimp; and (9) certain battered shrimp. Dusted shrimp is a shrimp-based product: (1) That is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) to which a “dusting” layer of rice or wheat flour of at least 95 percent purity has been applied; (3) with the entire surface of the shrimp flesh thoroughly and evenly coated with the flour; (4) with the non-shrimp content of the end product constituting between four and 10 percent of the product's total weight after being dusted, but prior to being frozen; and (5) that is subjected to individually quick frozen (“IQF”) freezing immediately after application of the dusting layer. Battered shrimp is a shrimp-based product that, when dusted in accordance with the definition of dusting above, is coated with a wet viscous layer containing egg and/or milk, and par-fried.
The products covered by this investigation are currently classified under the following HTS subheadings: 0306.13.00.03, 0306.13.00.06, 0306.13.00.09, 0306.13.00.12, 0306.13.00.15, 0306.13.00.18, 0306.13.00.21, 0306.13.00.24, 0306.13.00.27, 0306.13.00.40, 1605.20.10.10, and 1605.20.10.30. These HTS subheadings are provided for convenience and for customs purposes only and are not dispositive, but rather the written description of the scope of this investigation is dispositive.
Concurrent with this notice, the Department is issuing a memorandum detailing our analysis of the information on the record of this proceeding with respect to Maoming Changxing's ownership and affiliations. See Memorandum to James C. Doyle: Intent to Rescind the New Shipper Review of Maoming Changxing Foods Co., Ltd. in the Antidumping New Shipper Review of Certain Frozen Warmwater Shrimp from the People's Republic of China, dated July 19, 2007 (“Prelim Rescission Memo”).
We have considered whether Maoming Changxing is eligible for a separate rate. The Department's separate-rate test is not concerned, in general, with macroeconomic/border-type controls, e.g., export licenses, quotas, and minimum export prices, particularly if these controls are imposed to prevent dumping. Rather, the test focuses on controls over the investment, pricing, and output decision-making process at the individual firm level.
To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, the Department analyzes each entity exporting the subject merchandise under a test arising from the
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of merchandise subject to investigation in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate. As explained below, due to Maoming Changxing's failure to provide verifiable information with respect to its ownership and affiliations, it has not provided the information necessary for the Department to examine whether Maoming Changxing operates independently of
In its questionnaire responses, Maoming Changxing provided information to the Department regarding its corporate structure, ownership, affiliations with other entities, and its export sales negotiation process. However, as discussed in detail in the Prelim Rescission Memo, critical information submitted on the record of this proceeding by Maoming Changxing could not be verified. Specifically, the Department could not verify the information submitted on the record of this new shipper review regarding Maoming Changxing's ownership due to its failure to document the transfer of incorporating capital into Maoming Changxing from its claimed parent companies or ultimate owners. Maoming Changxing also failed to provide the Department with a complete and official version of the capital verification report of one of its claimed parent companies. Further, Maoming Changxing withheld specifically requested information concerning the existence of an affiliated company. In addition, Maoming Changxing's statements on the record of this proceeding with respect to the source of Maoming Changxing's incorporating capital and the financial interests of various owners were found to be inaccurate at verification.
Because of deficiencies between Maoming Changxing's responses and the information discovered at verification, the Department was unable to verify information concerning Maoming Changxing's formation and ownership. As a result, and consistent with the Department's determinations in prior cases, where the Department is unable to verify information submitted regarding a company's formation and ownership, that information cannot serve as the basis for the Department's determination regarding the company's eligibility for a separate rate.
Therefore, because the Department was unable to determine the actual owners of Maoming Changxing, the Department was unable to determine: (1) whether the export prices are set by or are subject to the approval of a governmental agency; (2) whether the respondent has authority to negotiate and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses.
Accordingly, as Maoming Changxing did not demonstrate that it was eligible for a separate rate, the Department will continue to consider Maoming Changxing part of the NME entity. Further, with respect to Maoming Changxing's qualifications as a new shipper, because the reported information with respect to its affiliated entities could not be verified, the Department was precluded from conducting a meaningful analysis to determine whether Maoming Changxing or its affiliated companies had not exported or produced the subject merchandise to the United States during the period of investigation pursuant to section 751(a)(2)(B)(i)(II) of the Act. Consistent with the Department's practice, we have therefore determined that Maoming Changxing does not qualify as a new shipper under section 351.214(a) of the Department's regulations because it is part of an entity that shipped during the original period of investigation. Accordingly, we intend to rescind the new shipper review.
Unless otherwise notified by the Department, interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with 19 CFR 351.309(c)(ii). As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited. Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed. See 19 CFR 351.309(d).
Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Any hearing would normally be held 37 days after the publication of this notice, or the first workday thereafter, at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230. Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the
The Department will issue the final results or final rescission of this new shipper review, which will include the results of its analysis of issues raised in the briefs, within 90 days from the date of the preliminary results, unless the time limit is extended.
At the completion of this new shipper review, if a final rescission notice is published, a cash deposit of 112.81 percent
This notice also serves as the only reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.
This new shipper review and this notice are published in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Patsy A. Bearden, (907) 586-7008 or
The Community Development Quota (CDQ) program is implemented under the Magnuson Stevens Fishery Conservation and Management Act, the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands, and regulations at 50 CFR part 679. The purpose of the CDQ program is to allocate a portion of the quotas for groundfish, Pacific halibut, crab, and prohibited species in the Bering Sea and Aleutian Islands Management Area to Western Alaska communities so that these communities can start and support regionally-based, commercial seafood or other fisheries-related businesses. Under the CDQ program, 65 eligible Western Alaska communities have organized into six separate CDQ groups. The CDQ groups have incorporated under Alaska law as nonprofit corporations.
CDQ and prohibited species quota (PSQ) allocations are made to CDQ groups. However, in many cases the CDQ groups contract with existing fishing vessels and processors to harvest CDQ on their behalf. The CDQ group is responsible to monitor the catch of CDQ and PSQ by all vessels fishing under its Community Development Plan and to take the necessary action to prevent overages. National Marine Fisheries Service (NMFS) monitors the reported catch to assure that quotas are not being exceeded.
Paper reports and plans, and the method of submittal are through the U.S. mail.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to David Gouveia or
Federal regulations found at 50 CFR 229.34 limits the number of gillnets that can be used in certain fisheries in the mid-Atlantic that appear to be most closely linked with accidental catch of harbor porpoises. The fishermen in these fisheries must obtain and attach numbered tags for their nets. Because the number of tags per vessel is capped, the tagging program helps to limit the number of nets in use and helps NOAA identify the number in use.
Requests for tags are submitted to NOAA on a paper form.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
Written comments must be submitted on or before September 24, 2007.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Sara McNulty, (978) 281-9300 ext. 6520 or
This collection of information involves sea turtles becoming accidentally entangled in active or discarded fixed fishing gear. These entanglements may prevent the recovery of endangered and threatened sea turtle populations. The National Marine Fisheries Service (NMFS) has established the Sea Turtle Disentanglement Network to promote reporting and increase successful disentanglement of sea turtles. As there is limited observer coverage of pot gear fisheries, NMFS relies on the U.S. Coast Guard, fishing industry, stranding network, federal, state, and local
Reports are made by telephone, or by fax or email.
Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration, U.S. Department of Commerce.
Notice of Public Comment Period for the Revised Management Plan for the Wells (Maine) National Estuarine Research Reserve.
Notice is hereby given that the Estuarine Reserves Division, Office of Ocean and Coastal Resource Management, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce is announcing a thirty day public comment period on the revised Wells (Maine) National Estuarine Research Reserve Management Plan which will begin on the day this announcement is published. Comments should be sent within the comment period in hard copy or e-mail to Doris Grimm at
The Wells National Estuarine Research Reserve was designated in February 1984 pursuant to Section 315 of the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1461. Pursuant to 15 CFR 921.33(c), a state must revise its management plan every five years. The reserve has been operating under a management plan approved in 1996. The submission of this plan fulfills this requirement and sets a course for successful implementation of the goals and objectives of the reserve.
Since the last management plan, the Wells Reserve acquired two key parcels of land, changed its boundary, constructed needed facilities, and has implemented several system-wide programs. It acquired the 27-acre Alheim property and the 2
The Wells Reserve is a public/private partnership whose administrative oversight is vested in the Reserve Management Authority (RMA). This independent state agency was established in 1990 to support and promote the interests of the Wells Reserve. The RMA has a Board of Directors composed of representatives having a property, management, or program interest in the Wells Reserve. The RMA members represent the Maine Department of conservation, the U.S. Fish and Wildlife Service, the Town of Wells, the Laudholm Trust, the Maine State Planning Office, and the National Oceanic and Atmospheric Administration.
Doris Grimm at (301) 563-7107 or Laurie McGilvray at (301) 563-1158 of NOAA's National Ocean Service, Estuarine Reserves Division, 1305 East-West Highway, N/ORM5, 10th floor, Silver Spring, MD 20910. For copies of the Wells Management Plan revision, visit
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of intent to prepare a draft environmental impact statement (DEIS).
The Caribbean Fishery Management Council (Council) intends to prepare a DEIS to describe and analyze management alternatives to be included in an amendment to the Fishery Management Plan (FMP) for the Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands and the FMP for the Spiny Lobster Fishery of the Gulf of Mexico and South Atlantic. These alternatives will consider measures to implement a minimum import size on spiny lobster. The purpose of this notice of intent is to solicit public comments on the scope of issues to be addressed in the DEIS.
Written comments on the scope of issues to be addressed in the DEIS must be received by the Council by August 27, 2007. A series of scoping meetings will be held in September, 2007.
Written comments on the scope of the DEIS and requests for additional information on the amendment should be sent to the Caribbean Fishery Management Council, 268 Munoz Rivera Avenue, Suite 1108, San Juan, Puerto Rico 00918-25772203; telephone: 787-766-5927; fax: 787-766-6239. Comments may also be sent by e-mail to
Graciela Garcia-Moliner; phone: 787-766-5927; fax: 787-766-6239; e-mail:
Spiny Lobster (
The Caribbean Fishery Management Council has expressed intent to amend its Spiny Lobster FMP to consider application of a minimum size limit on imported spiny lobster. NOAA Fisheries believes amendment of the Gulf and South Atlantic Spiny Lobster FMP should be addressed concurrently. After conferring with the Gulf of Mexico Fishery Management Council and South Atlantic Fishery Management Council, the Caribbean Council was designated as the administrative lead to address spiny lobster issues. Thus, the Caribbean Council will prepare one document, which contains an amendment to the Caribbean Spiny Lobster FMP and also an amendment to the Gulf and South Atlantic Spiny Lobster FMP.
The Caribbean Council will develop a DEIS to describe and analyze management alternatives to implement a minimum size limit on imported spiny lobster. The amendment will provide updates to the best available scientific information regarding Paniluris argus, and based on the information, the Councils will determine what actions and alternatives are necessary to protect spiny lobster throughout its range. Those alternatives may include, but are not limited to: a “no action” alternative regarding the fishery; alternatives to restrict the minimum import size based on carapace length; alternatives to restrict the minimum import size based on tail length; and alternatives to restrict the importation of meat, which is not whole lobster or tailed lobster.
In accordance with NOAA's Administrative Order NAO 216-6, Section 5.02(c), the Caribbean Council has identified this preliminary range of alternatives as a means to initiate discussion for scoping purposes only. This may not represent the full range of alternatives that eventually will be evaluated by the Caribbean Council.
Once the Caribbean Council completes the DEIS associated with the amendment to the Spiny Lobster Fishery of the Caribbean, it must be approved by a majority of the voting members, present and voting, of the Carribean Council. Similarly, the Gulf and South Atlantic Spiny Lobster FMP amendment and associated DEIS must be approved by those Councils. After the Councils approve this document, the DEIS will be submitted to NMFS for filing with the Environmental Protection Agency (EPA). The EPA will publish a notice of availability of the DEIS for public comment in the
The Councils will consider public comments received on the DEIS in developing the final environmental impact statement (FEIS) and before adopting final management measures for the amendment. The Councils will submit both the final joint amendment and the supporting FEIS to NMFS for review by the Secretary of Commerce (Secretary) under the Magnuson-Stevens Fishery Conservation and Management Act.
NMFS will announce, through a notice published in the
NMFS will announce, through a notice published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit and permit amendment.
Notice is hereby given that Permit No. 715-1883 for conduct of research on northern fur seals (
The permit amendment and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713-2289; fax (301)427-2521;
Amy Sloan or Tammy Adams, (301)713-2289.
On February 15, 2007, notice was published in the
Permit No. 715-1883 issued to NPUMMRC authorizes the capture in Alaska and export to Canada of up to 6 female juvenile fur seals for captive research on nutritional physiology.
Permit Amendment No. 881-1745-02 authorizes captive breeding and research on captive Steller sea lions held at the ASLC related to studies on the physiology of gestation and lactation. This is in addition to already permitted studies, which include condition assessments, endocrinology and immunology studies, metabolism studies, and studies of foraging behavior.
The permit and permit amendment are valid through August 1, 2009, and contain requirements for coordination and monitoring of research as well as mitigation measures deemed appropriate by NMFS. The permit and permit amendment cannot be amended or extended.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Issuance of the permit to the ASLC, as required by the ESA, was based on a finding that the permit: (1) was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Committee, in August, 2007, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, August 16, 2007, at 8:30 a.m.
This meeting will be held at the Holiday Inn, 31 Hampshire Street, Mansfield, MA 02360; telephone: (508) 339-2200; fax: (508) 339-1040.
Paul J. Howard, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The committee will review input from the Scallop Advisory Panels and Scallop Plan Development Team related to the development of Framework 19. The committee will also consider management measures for consideration in Framework 19 including days-at-sea allocations, access area allocations, specific measures for the general category scallop fishery, improvements to the observer set-aside program, and other measures. Framework 19 is a biennial action that will consider management measures for fishing years 2008 and 2009. The committee may consider other topics at their discretion.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Paul J. Howard, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
Department of Education.
The IC Clearance Official, Regulatory Information Management Services, Office of Management invites comments on the submission for OMB review as required by the Paperwork Reduction Act of 1995.
Interested persons are invited to submit comments on or before August 27, 2007.
Written comments should be addressed to the Office of
Section 3506 of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) requires that the Office of Management and Budget (OMB) provide interested Federal agencies and the public an early opportunity to comment on information collection requests. OMB may amend or waive the requirement for public consultation to the extent that public participation in the approval process would defeat the purpose of the information collection, violate State or Federal law, or substantially interfere with any agency's ability to perform its statutory obligations. The IC Clearance Official, Regulatory Information Management Services, Office of Management, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection, grouped by office, contains the following: (1) Type of review requested, e.g. new, revision, extension, existing or reinstatement; (2) Title; (3) Summary of the collection; (4) Description of the need for, and proposed use of, the information; (5) Respondents and frequency of collection; and (6) Reporting and/or Recordkeeping burden. OMB invites public comment.
Requests for copies of the information collection submission for OMB review may be accessed from
Comments regarding burden and/or the collection activity requirements should be electronically mailed to
Take notice that on July 10, 2007, ANR Pipeline Company (ANR) tendered for filing and approval amendments to three negotiated rate agreements between ANR and Wisconsin Public Service Corporation. The amendments are being filed to reduce the MDQ's on two contracts and increase the MDQ on one contract.
ANR requests that the Commission accept and approve the subject filing to be effective August 1, 2007.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of Section 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on June 29, 2007, Discovery Gas Transmission LLC (Discovery) tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following tariff sheets to become effective July 1, 2007:
Discovery states that the filing is being made to revise it tariff to reflect a negotiated rate agreements with Texas Eastern Transmission, L.P. and Mariner Energy, Inc.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on July 16, 2007, MIGC, Inc. (MIGC) tendered for filing as a part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets with a proposed effective date of August 15, 2007:
MIGC states that copies of its filing have been served upon all jurisdictional customers of MIGC and interested state commissions.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed in accordance with the provisions of § 154.210 of the Commission's regulations (18 CFR 154.210). Anyone filing an intervention or protest must serve a copy of that document on the Applicant. Anyone filing an intervention or protest on or before the intervention or protest date need not serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426.
The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail
Take notice that the following hydroelectric application has been filed with Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
The Commission's Rules of Practice and Procedure require all interveners filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Scoping comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site (
k. This application is not ready for environmental analysis at this time.
l. The proposed project would utilize the existing Bureau of Reclamation's Clark Canyon dam, and would consist of the following new facilities: (1) A steel liner in the existing 9-foot-diameter concrete outlet conduit; (2) a new outlet gate structure; (3) a 9-foot-diameter steel penstock bifurcating into an 8-foot diameter and a 6-foot diameter steel penstock directing flow to the turbine units about 70 feet from the bifurcation; (4) a powerhouse containing two generating units with a combined capacity of 4.75 megawatts; (5) a 300-foot-long access road; (6) a switchyard; (7) a 0.3-mile-long, 24.9-kilovolt overhead transmission line connecting the project to the local utility's existing transmission system at a proposed substation; and (8) appurtenant facilities. The average annual generation is estimated to be 16.5 gigawatt hours.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
n.
FERC staff will conduct one agency scoping meeting and one public meeting. The agency scoping meeting will focus on resource agency and non-governmental organization (NGO) concerns, while the public scoping meeting is primarily for public input. All interested individuals, organizations, and agencies are invited to attend one or both of the meetings, and to assist the staff in identifying the scope of the environmental issues that should be analyzed in the EA. The times and locations of these meetings are as follows:
Date: Tuesday, August 21, 2007.
Time: 2 p.m.
Place: National Guard Armory,
Address: 1070 Highway 41 North, Dillon, MT 59725.
Date: Tuesday, August 21, 2007.
Time: 7 p.m.
Place: National Guard Armory,
Address: 1070 Highway 41 North, Dillon, MT 59725.
Copies of the Scoping Document (SD1) outlining the subject areas to be addressed in the EA were distributed to the parties on the Commission's mailing list. Copies of the SD1 will be available at the scoping meeting or may be viewed on the web at
The Applicant and FERC staff will conduct a project site visit beginning at 9 p.m. on August 21, 2007. All interested individuals, organizations, and agencies are invited to attend. All participants are responsible for their own transportation to the site. All participants should meet at the public fishing access area immediately below Clark Canyon dam. To reach the access area from Dillon, Montana, (1) proceed south on I-15 approximately 22 miles to the exit marked “Clark Canyon Dam and Recreation Area;” (2) proceed about 0.75 mile across the crest of the dam and take the first right turn about 0.25 mile past the dam to the Beaverhead River Fishing Access; and (3) continue to the public fishing access area immediately below the dam. Upon arrival, all participants must be prepared to present proper identification (e.g., current driver's license or alternate source with picture identification). All participants are subject to government identification investigations and, upon completion, may receive a temporary identification badge for the duration of the visit. Anyone with questions about the site visit should contact Mr. Matt Cutlip of the Commission at 503-552-2762.
At the scoping meetings, the staff will: (1) Summarize the environmental issues tentatively identified for analysis in the EA; (2) solicit from the meeting participants all available information, especially quantifiable data, on the resources at issue; (3) encourage statements from experts and the public on issues that should be analyzed in the EA, including viewpoints in opposition to, or in support of, the staff's preliminary views; (4) determine the resource issues to be addressed in the EA; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis.
The meetings are recorded by a stenographer and become part of the formal record of the Commission proceeding on the project.
Individuals, organizations, and agencies with environmental expertise and concerns are encouraged to attend the meeting and to assist the staff in defining and clarifying the issues to be addressed in the EA.
The Modesto Irrigation District and the Turlock Irrigation District (licensees) filed a Fisheries Study Plan on March 20, 2007, in response to the Commission's December 20, 2006, request made pursuant to Article 58 of the license, as amended.
Commission staff will conduct a public meeting to discuss the design and schedule for future monitoring studies based on the licensees' plan and the comments received to date on the staff's PSA. Commission staff will be prepared to lead the discussion, and asks that all participating parties be prepared to support their oral statements with documented information.
The meeting will be held on Wednesday, August 8, 2007, from 9 a.m. to 5 p.m. (PDT) at the John E. Moss Federal Building and Courthouse, 650 Capitol Mall, Stanford Room, 1st floor, Sacramento, California 95814. The licensees, resource agency personnel, and other persons interested in this matter are invited to participate. This meeting will not be recorded by a stenographer.
The following is the agenda for the meeting:
Special security precautions are employed at this Federal building. Visitors must go through full security screening and are not permitted to bring in cell phones or cameras with digital photo capability. Laptops and PDAs must be booted up at the security entrance. Any questions about this notice should be directed to Philip Scordelis at the Federal Energy Regulatory Commission, (415) 369-3335, or by e-mail at
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Additional comments may be submitted on or before August 27, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OAR-2007-0014 to (1) EPA online using
Julius Banks; Stratospheric Protection Division, Office of Air and Radiation, Office of Atmospheric Programs; Mail Code 6205J; Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9870; fax number: (202) 343-2338; e-mail address:
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On March 14, 2007 (72 FR 11864), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2007-0014, which is available for online viewing at
Use EPA's electronic docket and comment system at
In 1993, EPA promulgated regulations under section 608 of the Act for the recycling of ozone-depleting refrigerants recovered during the servicing and disposal of air-conditioning and refrigeration equipment. These regulations were published on May 14, 1993 (58 FR 28660) and codified in 40 CFR part 82, subpart F (§ 82.150
The regulations require persons servicing refrigeration and air-conditioning equipment to observe certain service practices that reduce emissions of ozone depleting refrigerants. The regulations also establish certification programs for technicians, recycling and recovery equipment, and off-site refrigerant reclaimers. In addition, EPA requires that ozone depleting refrigerants contained “in bulk” in appliances be removed prior to disposal of the appliances and that all refrigeration and air-conditioning equipment, except for small appliances and room air conditioners, be provided with a servicing aperture that facilitates recovery of the refrigerant. Moreover, the Agency requires that substantial refrigerant leaks in equipment be repaired when they are discovered. These regulations significantly reduce emissions of ozone depleting refrigerants, and therefore aid U.S. and global efforts to minimize damage to the ozone layer and the environment as a whole.
To facilitate compliance with and enforcement of section 608 requirements, EPA requires reporting and record keeping requirements of technicians; technician certification programs; equipment testing organizations; refrigerant wholesalers and purchasers; refrigerant reclaimers; refrigeration and air-conditioning equipment owners; and other establishments that perform refrigerant removal, service, or disposal. The record keeping requirements and periodic submission of reports, to EPA's Office of Air and Radiation, Office of Atmospheric Programs, occur on an annual, biannual, onetime, or occasional basis depending on the nature of the reporting entity and the length of time that the entity has been in service. Specific reporting and recordkeeping requirements were published in 58 FR 28660 and codified under 40 CFR Part 82, Subpart F (i.e., § 82.166). These reporting and recordkeeping requirements also allow EPA to evaluate the effectiveness of the refrigerant regulations, and help the Agency determine if we are meeting the obligations of the Unites States', under the 1987 Montreal Protocol, to reduce use and emissions of ozone-depleting substances to the lowest achievable level.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501
Additional comments may be submitted on or before August 27, 2007.
Submit your comments, referencing Docket ID No. EPA-HQ-OW-2007-0266, to (1) EPA online using
David J. Munch, Technical Support Center, Office of Ground Water and Drinking Water, United States Environmental Protection Agency, Office of Water, 26 West Martin Luther King Drive (MS 140), Cincinnati, OH 45268; telephone (513) 569-7843; e-mail address
EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 3, 2007 (72 FR 24582), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments during the comment period. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OW-2007-0266, which is available for online viewing at
Use EPA's electronic docket and comment system at
Environmental Protection Agency (EPA).
Notice.
The EPA Human Studies Review Board (HSRB) announces a public teleconference meeting to discuss its draft HSRB report from the April 18-20, 2007 HSRB meeting.
The teleconference will be held on August 14, 2007, from 3 to approximately 5 p.m. (Eastern Time).
Members of the public who wish to obtain the call-in number and access code to participate in the telephone conference, to request a current draft copy of the Board's report or to obtain further information, may contact Crystal Rodgers-Jenkins, EPA, Office of the Science Advisor, (8105), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; or via telephone/voice mail at (202) 564-5275. General information concerning the EPA HSRB can be found on the EPA Web site at
Submit your written comments, identified by Docket ID No. EPA-HQ-ORD-2007-0216, by one of the following methods:
This action is directed to the public in general. This action may, however, be of interest to persons who conduct or assess human studies, especially studies on substances regulated by EPA, or to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) or the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this
In addition to using
Docket: All documents in the docket are listed in the
The April 18-20, 2007 HSRB meeting draft report is now available. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the
You may find the following suggestions helpful for preparing your comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used that support your views.
4. Provide specific examples to illustrate your concerns.
5. To ensure proper receipt by EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and
You may participate in this meeting by following the instructions in this section. To ensure proper receipt by EPA, it is imperative that you identify docket ID number EPA-HQ-ORD-2007-0216 in the subject line on the first page of your request.
1.
2.
The EPA Human Studies Review Board will be reviewing its draft report from the April 18-20, 2007 HSRB meeting. Background on the April 18-20, 2007 HSRB meeting can be found at
Federal Communications Commission.
Notice of public meeting.
In accordance with the Federal Advisory Committee Act, this notice advises interested persons that the Federal Communications Commission's (FCC) Advisory Committee on Diversity for Communications in the Digital Age (“Diversity Committee”) will hold a meeting on September 27, 2007, at 10 a.m. in the Commission Meeting Room of the Federal Communications Commission, Room TW-C305, 445 12th Street, SW., Washington, DC 20554. Reports from the subcommittees will be presented. Barbara Kreisman is the Diversity Committee's Designated Federal Officer.
September 27, 2007.
Federal Communications Commission, Room TW-C305 (Commission Meeting Room), 445 12th Street, SW., Washington, DC 20554.
Barbara Kreisman, Designated Federal Officer of the FCC's Diversity Committee (202) 418-7452 or e-mail:
At this meeting, the Diversity Committee will discuss and consider possible areas in which to develop recommendations that will further enhance the ability of minorities and women to participate in the telecommunications and related industries.
Members of the general public may attend the meeting. The FCC will attempt to accommodate as many people as possible. However, admittance will be limited to seating availability. The public may submit written comments before the meeting to: Barbara Kreisman, the FCC's Designated Federal Officer for the Diversity Committee by e-mail:
Open captioning will be provided for this event. Other reasonable accommodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via e-mail to
Additional information regarding the Diversity Committee can be found at
Federal Labor Relations Authority.
Notice.
Notice is hereby given of the members of the Performance Review Board.
July 26, 2007.
Jill M. Crumpacker, Executive Director; Federal Labor Relations Authority (FLRA); 1400 K Street, NW., Washington, DC 20424-0001; (202) 218-7945.
Section 4314(c)(1) through (5) of title 5, U.S.C., requires that each agency, in accordance with the regulations prescribed by the Office of Personnel Management, establish one or more Performance Review Boards. The Board(s) shall review and evaluate the initial appraisal of a senior executive.
The following persons will serve on the FLRA's FY 2007 Performance Review Board: Debra A. Carr, Associate Deputy Staff Director, U.S. Commission on Civil Rights; Jill M. Crumpacker, Executive Director, Federal Labor Relations Authority; Peggy R. Mastroianni, Associate Legal Counsel, Equal Employment Opportunity Commission.
5 U.S.C. 4134(c)(4).
This notice corrects a notice (FR Doc. E7-14154) published on pages 40153 and 40154 of the issue for Monday, July 23, 2007.
Under the Federal Reserve Bank of Kansas City heading, the entry for Thew Randall L. Pieper Trust, Randall L. Pieper, trustee; and Joan L. Lawson Trust, Joan L. Lawson, trustee, all of Calhan, Colorado; Candice S. Enix Trust, Candice S. Enix, trustee, both of Centennial, Colorado; John A. Pieper Trust, John A. Pieper, trustee, Albuquerque, New Mexico, is revised to read as follows:
Comments on this application must be received by August 7, 2007.
Board of Governors of the Federal Reserve System, July 23, 2007.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than August 20, 2007.
Board of Governors of the Federal Reserve System, July 23, 2007.
Office of Global Health Affairs, HHS.
Guidance.
Section 301(f) of the United States Leadership Against HIV/AIDS, Tuberculosis and Malaria Act of 2003 (the “Leadership Act”), P.L. No. 108-25 (May 27, 2003), 22 U.S.C. 7631(f), prohibits the award of grants, contracts or cooperative agreements for activities funded under the Act to any organization that does not have an explicit policy opposing prostitution and sex trafficking. Section 301(f) states as follows:
Limitation.—No funds made available to carry out this Act, or any amendment made by this Act, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.
The following guidance provides additional information on the policy requirement expressed in this law for entities that receive grants, contracts, or cooperative agreements from the U.S. Department of Health and Human Services (“HHS”) to implement programs or projects under the authority of the Leadership Act. Specifically, it describes the legal, financial, and organizational separation that should exist between these recipients of HHS funds and an affiliate organization that engages in activities that are not consistent with a policy opposing prostitution and sex trafficking.
Maggie Wynne, Office of Global Health Affairs, Hubert H. Humphrey Building, 200 Independence Avenue, SW., Room 639H, Washington, DC 20201.
This guidance is designed to provide additional clarity for Contracting and Grant officers, Contracting Officers' Technical Representatives, Program Officials and implementing partners (e.g., grantees, contractors) of HHS regarding the application of language in Notices of Availability, Requests for Proposals, and other documents pertaining to the policy requirement expressed in 22 U.S.C. 7631(f), which provides that organizations receiving Leadership Act funds must have a policy explicitly opposing prostitution and sex trafficking (the “policy requirement”).
In enacting the statute from which this requirement originates, the Leadership Act, Congress developed a framework to combat the global spread of HIV/AIDS, tuberculosis, and malaria. As a part of that Act, to ensure that the Government's organizational partners will not undermine this goal through the promotion of counterproductive activities, the Leadership Act provides that all funding recipients, subject to limited exceptions, must have a policy explicitly opposing prostitution and sex trafficking. It is critical to the effectiveness of Congress's plan and to the U.S. Government's foreign policy underlying this effort, that the integrity of Leadership Act programs and activities implemented by organizations receiving Leadership Act funds is maintained, and that the U.S. Government's message opposing prostitution and sex trafficking is not confused by conflicting positions of these organizations.
Accordingly, the U.S. Government provides this “Organizational Integrity” Guidance to clarify that the Government's organizational partners that have adopted a policy opposing prostitution and sex-trafficking may, consistent with the policy requirement, maintain an affiliation with separate organizations that do not have such a policy, provided that such affiliations do not threaten the integrity of the Government's programs and its message opposing prostitution and sex trafficking, as specified in this guidance. To maintain program integrity, adequate separation as outlined in this guidance is required between an affiliate which expresses views on prostitution and sex trafficking contrary to the government's message and any federally-funded partner organization.
The criteria for affiliate independence in this guidance is modeled on criteria upheld as facially constitutional by the U.S. Court of Appeals for the Second Circuit in
This guidance clarifies that an independent organization affiliated with a recipient of Leadership Act funds need not have a policy explicitly opposing prostitution and sex trafficking for the recipient to maintain compliance with the policy requirement. The independent affiliate's position on these issues will have no effect on the recipient organization's eligibility for Leadership Act funds, so long as the affiliate satisfies the criteria for objective integrity and independence detailed in the guidance. By ensuring adequate separation between the recipient and affiliate organizations, these criteria guard against a public perception that the affiliate's views on prostitution and sex-trafficking maybe attributed to the recipient organization and thus to the government, thereby avoiding the risk of confusing the Government's message opposing prostitution and sex trafficking.
This guidance may be shared with HHS implementing partners.
(1) The affiliated organization is a legally separate entity;
(2) The affiliated organization receives no transfer or Leadership Act funds, and Leadership Act funds do not subsidize restricted activities; and
(3) The Recipient is physically and financially separate from the affiliated organization. Mere bookkeeping separation of Leadership Act funds from other funds is not sufficient. HHS will determine, on a case-by-case basis and based on the totality of the facts, whether sufficient physical and financial separation exists. The presence or absence of any one or more factors will not be determinative. Factors
(i) The existence of separate personnel, management, and governance;
(ii) The existence of separate accounts, accounting records, and timekeeping records;
(iii) The degree of separation from facilities, equipment and supplies used by the affiliated organization to conduct restricted activities, and the extent of such restricted activities by the affiliate;
(iv) The extent to which signs and other forms of identification which distinguish the Recipient from the affiliated organization are present, and signs and materials that could be associated with the affiliated organization or restricted activities are absent; and
(v) The extent to which HHS, the U.S. Government and the project name are protected from public association with the affiliated organization and its restricted activities in materials such as publications, conference and press or public statements.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Maryam I. Daneshvar, CDC Acting Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Written comments should be received within 60 days of this notice.
National Healthcare Safety Network (NHSN) (OMB Control No. 0920-0666)—Revision—National Center for Preparedness, Detection, and Control of Infectious Diseases (NCPDCID), Centers for Disease Control and Prevention (CDC).
The National Healthcare Safety Network (NHSN) is a system designed to accumulate, exchange, and integrate relevant information and resources among private and public stakeholders to support local and national efforts to protect patients and to promote healthcare safety. Specifically, the data is used to determine the magnitude of various healthcare-associated adverse events and trends in the rates of these events among patients and healthcare workers with similar risks. The data will be used to detect changes in the epidemiology of adverse events resulting from new and current medical therapies and changing risks.
Healthcare institutions that participate in NHSN voluntarily report their data to CDC using a web browser-based technology for data entry and data management. Data are collected by trained surveillance personnel using written standardized protocols. This application to OMB includes a significant increase in the number of burden hours to the previously approved data collection. The increase is due to inclusion of new forms and an increased number of respondents.
NHSN was first approved by OMB in 2005 and CDC proposes to revise this data collection by adding new modules to the NHSN as well as modifying currently approved forms. Four new forms are proposed: (1) Healthcare Worker Influenza Vaccination form; (2) Healthcare Worker Influenza Antiviral Medication Administration form; (3) Pre-season survey on Influenza Vaccination Programs for Healthcare Workers; and (4) Post-season Survey on Influenza Vaccination Programs for Healthcare Workers. The purpose of these new forms is to help participating healthcare institutions and CDC to: (1) Monitor influenza vaccination coverage among healthcare personnel at individual facilities and to provide aggregate coverage estimates for all participating facilities; (2) monitor progress towards attaining the Healthy People 2010 goal of 60% vaccination coverage among healthcare personnel; (3) monitor influenza vaccination coverage by ward/unit of the facility or occupational group so that areas or groups with low vaccination rates can be targeted for interventions; (4) monitor adverse reactions related to receipt of the vaccine or receipt of antiviral medications; and (5) assess the characteristics of influenza vaccination programs pre- and post-influenza season to identify practices associated with high immunization rates. The total estimated annual burden for these forms is 13,800 hours.
CDC is proposing to add an additional form, Central Line Insertion Practices Monitoring Form, to the Patient Safety Component Device Associated Module. This new form will enable participating facilities and CDC to (1) monitor central line insertion practices in individual patient care units and facilities and provide aggregate data for all participating facilities (facilities have the option of recording inserter-specific adherence data); (2) link gaps in recommended practice with the clinical outcome both in individual facilities and for all participating facilities; (3) facilitate quality improvement by identifying specific gaps in adherence to recommended prevention practices, thereby helping to target intervention strategies for reducing central line infection rates. The total estimated annual burden for this form is 12,500 hours.
CDC proposes to add the Multi-Drug Resistant Organism (MDRO) Prevention Process Monitoring Module to the Patient Safety Component. This module consists of four forms: (1) MDRO Prevention Process Monitoring Form; (2) MDRO Infection Event Form; (3) Laboratory-identified MDRO Event Form; and (4) Laboratory-identified MDRO Event Summary Form. The purpose of these forms is to: (1) Monitor processes and practices in individual patient care units and facilities and to provide aggregate adherence data for all participating facilities; (2) link gaps in recommended practice with the clinical outcome (i.e., MDRO infection) both in individual facilities and for all participating facilities; (3) facilitate quality improvement by identifying specific gaps in adherence to
The fourth new proposed collection to the NHSN is the High Risk Inpatient Influenza Vaccination Module. This module consists of four forms: (1) Influenza High Risk Inpatient Influenza Vaccine Summary Form—Method A; (2) Influenza High Risk Inpatient Influenza Vaccine Summary Form—Numerator Data Form Method B; (3) Influenza High Risk Inpatient Influenza Vaccine Summary Form—Method B; and (4) Influenza High Risk Inpatient Influenza Vaccine—Denominator Form Method B. The purpose of these forms is to: (1) Monitor influenza vaccination practices for high risk patients and provide aggregate data in regard to the number of high risk patients receiving vaccination, those already vaccinated, and those who decline due to medical contraindications or other reasons; and (2) to identify reasons that high risk patients are not receiving influenza vaccination. The total estimated annual burden of these forms is 161,250 hours.
CDC is also proposing to open enrollment to any healthcare facility; therefore this submission includes a registration form (Registration Form) to collect necessary registration information. The total estimated annual burden for this form is 125 hours.
A Long Term Acute Care Hospital (LTACH) survey form is included in this submission. This survey will allow long term acute care hospitals and CDC to collect information on LTACH characteristics, infection control practices, and microbiology laboratory practices. This data will provide CDC with more comprehensive information on all of the types of facilities that utilize the NHSN. The total estimated annual burden for this form is 38 hours.
Finally, CDC also proposes to make minor edits and modifications to currently approved forms.
CDC is also adding an increased number of participating healthcare institutions from a wide spectrum of settings. Part of this increase in burden hours is due to the passage of legislation in many states requiring mandatory reporting of healthcare-associated infections. Some states plan to use or are using NHSN as their data collection system to meet this mandate.
Participating institutions must have a computer capable of supporting an Internet service provider (ISP) and access to an ISP. The only other cost to respondents is their time to complete the appropriate forms.
In compliance with the requirement of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 for opportunity for public comment on proposed data collection projects, the Centers for Disease Control and Prevention (CDC) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call 404-639-5960 and send comments to Maryam I. Daneshvar, CDC Acting Reports Clearance Officer, 1600 Clifton Road, MS-D74, Atlanta, GA 30333 or send an e-mail to
Preventive Health and Health Services Block Grant, Annual Application and Reports—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In 1994, OMB approved the collection of information provided in the grant applications and annual reports for the Preventive Health and Health Services Block Grant (OMB #0920-0106). This approval expires on October 31, 2008. * * * CDC is requesting OMB clearance for this legislatively mandated information collection until January 31, 2011. The request is to approve the development and adherence to
This information collected through the applications from the official State health agencies is required from section 1905 of the Public Health Service Act. The information collected from the annual reports is required by section 1906. * * * The data collection tool is being moved from software that is installed to each user's desktop to a web-based system. The following changes will be incorporated into the web-based system: (1) Applications are referred to as Work Plans, (2) Grantees are asked to submit Work Plans within recommended page ranges based on the amount of funding with the objective of reducing the number of pages submitted per grantee, (3) Review functions have been added to the Work Plan, Success Stories, and Annual Report sections, (4) The rationale that was used by the Preventive Health and Health Services Block Grant (PHHSBG) Advisory Committee to prioritize use of PHHSBG funds is identified via check boxes versus a free form text field, (5) Information is captured relative to the percent of time dedicated to the PHHSBG by the Block Grant Coordinator and other Full Time Equivalents (FTEs) that are paid for in whole or in part with Block Grant dollars, (6) Grantees select the Evidence Based Guideline or Best Practice that is used as the basis for interventions from a pre-defined list, (7) Grantees select the CDC Goals that are being addressed with Block Grant Funds from a pre-defined list and identify the location wherein the funds are being applied, (8) Information items are broken down into discrete fields, for example, specific begin and end dates are entered for objectives and activities, and the components for a SMART (Specific Measurable Achievable, Realistic and Time based) objective are entered individually versus via free form text fields, (9) Grantees select a percent from a pre-defined list in the Annual Report section to identify the extent to which objectives and activities have been accomplished. Written detail is provided only for those items that are ‘exceptions’ to projected outcomes, (10) A Compliance Review section has been added to provide grantees with general information regarding the Compliance Review process and specific information that pertains to past reviews of their state/territory/tribe.
The total burden hours is estimated at 3355 hours, a reduction of 915 hours below the previous data collection estimate (4270). The number of hours is equal to 61 grantees × 25 hours (1525 hrs) for completion of the application and 61 grantees × 30 hours (1830 hrs) for completion of the annual report. Respondent burden is based upon experience with the Grant Application and Reporting system that is used to complete applications and annual reports.
There are no costs to respondents except their time to participate in the survey.
In accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), the Centers for Disease Control and Prevention (CDC) announces, the following meeting for the aforementioned committee and subcommittee:
Following this meeting, the voting members of ACIPC will meet via teleconference to vote on the recommendations of the SPRS regarding the RFAs.
Agenda items are subject to change as priorities dictate.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft document entitled “Guidance for Industry: Cell Selection Devices for Point of Care Production of Minimally Manipulated Autologous Peripheral Blood Stem Cells (PBSCs)” dated July 2007. The draft guidance document discusses certain cell selection devices that minimally manipulate autologous PBSCs at the point of care for specific clinical indications, and the applicability of the requirements to such PBSCs. The guidance also discusses the submission of data intended to support approval of cell selection devices.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the agency considers your comment on this draft guidance before it begins work on the final version of the guidance submit written or electronic comments on the draft guidance by October 24, 2007.
Submit written requests for single copies of the draft guidance to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist the office in processing your requests. The draft guidance may also be obtained by mail by calling CBER at 1-
Submit written comments on the draft guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Valerie A. Butler, Center for Biologics Evaluation and Research (HFM-17), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852-1448, 301-827-6210.
FDA is announcing the availability of a draft document entitled “Guidance for Industry: Cell Selection Devices for Point of Care Production of Minimally Manipulated Autologous Peripheral Blood Stem Cells (PBSCs)” dated July 2007. The draft guidance document discusses certain cell selection devices that minimally manipulate autologous PBSCs at the point of care for specific clinical indications, and the applicability of the requirements of 21 CFR part 1271 to such PBSCs. The guidance also discusses the submission of data intended to support approval of cell selection devices.
The draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirement of the applicable statutes and regulations.
This draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 812 have been approved under 0910-0078; the collections of information in 21 CFR part 814 have been approved under 0910-0231; the collections of information in 21 CFR part 820 have been approved under 0910-0073; and the collections of information in 21 CFR part 822 have been approved under 0910-0449.
The draft guidance is being distributed for comment purposes only and is not intended for implementation at this time. Interested persons may submit to the Division of Dockets Management (see
Persons with access to the Internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a revised draft guidance entitled “In Vitro Diagnostic Multivariate Index Assays.” FDA is issuing this revised draft guidance to address the definition and regulatory status of a class of In Vitro Diagnostic Devices referred to as In Vitro Diagnostic Multivariate Index Assays (IVDMIAs). The revised draft guidance also addresses premarket and postmarket requirements with respect to IVDMIAs. The initial draft of this guidance was issued September 7, 2006.
Submit written or electronic comments on this draft guidance by August 27, 2007.
Submit written requests for single copies of the draft guidance document entitled “In Vitro Diagnostic Multivariate Index Assays” to the Division of Small Manufacturers, International, and Consumer Assistance (HFZ-220), Center for Devices and Radiological Health, Food and Drug Administration, 1350 Piccard Dr., Rockville, MD 20850 or to the Office of Communication, Training, and Manufacturers Assistance (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 240-276-3151. See the
Submit written comments concerning this draft guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Courtney Harper, Center for Devices and Radiological Health (HFZ-440), Food and Drug Administration, 2098 Gaither Rd., Rockville, MD 20850, 240-276-0694.
In the
An IVDMIA, as defined in the draft guidance document, is a device within the meaning of the Federal Food, Drug, and Cosmetic Act (the act). Some IVDMIAs are laboratory-developed tests (LDTs); laboratory-developed IVDMIAs are a specific subset of LDTs. While FDA has stated that “clinical laboratories that develop (in-house) tests
IVDMIAs raise significant issues of safety and effectiveness. These types of tests are developed based on observed correlations between multivariate data and clinical outcome, such that the clinical validity of the claims is not transparent to patients, laboratorians, and clinicians who order these tests. Additionally, IVDMIAs frequently have a high risk intended use. FDA is concerned that patients and healthcare practitioners are relying upon IVDMIAs with high risk intended uses to make critical healthcare decisions without any independent assurance that the IVDMIA has been properly clinically validated, and without any ability to assess whether the test yields clinically valid results.
With this revised draft guidance document, FDA seeks to identify IVDMIAs as a discrete category of device, and to clarify that, even when offered as LDTs, IVDMIAs must meet pre- and post-market device requirements under the act and FDA regulations, including premarket review requirements in the case of most class II and III devices.
FDA received and considered approximately 60 sets of comments on the initial draft guidance document, including comments provided at a public meeting that was held on February 8, 2007. After taking the comments into consideration, the FDA has updated the draft guidance document to provide clarifications as needed.
Certain comments on the initial draft guidance document requested that FDA undertake notice and comment rulemaking rather than issue a guidance document in order to allow sufficient opportunity for public input. In response to this concern, FDA extended the comment period on the draft guidance document from 90 days to 180 days, March 5, 2007 (71 FR 68822), and held a public meeting to provide a forum for presentations and comments on the draft guidance document. The meeting was attended by 266 people representing a cross-section of interested stakeholders including industry, consumer groups, and the medical community. FDA has carefully considered the comments it has received. Many comments reflect that stakeholders construed the definition of IVDMIAs in the initial draft guidance document to encompass a wider range of tests than FDA had intended. The initial draft guidance document has been revised to clarify the definition of an IVDMIA and to provide examples of tests that the agency does and does not consider to be IVDMIAs. This section of the draft guidance was modified so that stakeholders can more easily understand the nature of tests designated as IVDMIAs, and manufacturers can more easily determine whether their tests are IVDMIAs. However, the clarifications do not alter the scope or intent of the definition of an IVDMIA found in the initial draft guidance document.
In response to additional comments received, the revised draft guidance document now clarifies FDA regulatory mechanisms in general, such as how devices are classified and reviewed based on the risk of the intended use, how laboratory-developed IVDMIAs should be labeled, and how manufacturers can update and improve cleared or approved devices using existing mechanisms within the regulatory framework. These existing mechanisms enable manufacturers to bring innovative new tests to the market and ensure that they can be updated and improved as new scientific information becomes available. While this information is generally available in existing regulations, guidance documents, and on the FDA Web site, the revised draft guidance provides a summary of this information with a focus on IVDMIAs in order to assist those stakeholders who are not familiar with existing FDA requirements.
In other comments, some stakeholders expressed concern that requiring FDA regulatory compliance for IVDMIAs has the potential to discourage the development of new tests for rare diseases. A manufacturer of an IVDMIA for a disease or condition that affects small patient populations may find that research and development costs exceed market returns. The draft guidance has been revised to indicate FDA's intent to exercise enforcement discretion for laboratory-developed IVDMIAs that are intended to diagnose rare diseases (i.e., IVDMIAs that meet the definition of Humanitarian Use Devices under 21 CFR part 814 Subpart H).
Finally, the draft guidance document clarifies that laboratories that manufacture IVDMIAs should follow the Medical Device Reporting requirements for manufacturers, 21 CFR part 803 for their IVDMIA device(s). As in the initial draft guidance, the revised draft guidance indicates that FDA intends to issue guidance to assist laboratories that manufacture IVDMIAs in complying with the Quality System regulation (QS), 21 CFR part 820. In response to comments that expressed concern about coming into compliance with the QS regulation, the revised draft guidance indicates that until such a final guidance is published, FDA intends to exercise enforcement discretion with regard to post-market QS requirement enforcement for laboratories that manufacture IVDMIAs, recognizing that some Clinical Laboratory Improvement Amendments of 1988 (CLIA' 88) requirements may partially fulfill corresponding QS regulation requirements.
FDA is issuing this revised draft in order to gather significant new comments before issuing a final version of the guidance. Because the agency believes it has addressed the most important concerns raised by the comments it received on the initial draft, and because it is important to issue a final guidance to provide clarity for stakeholders, FDA is providing a comment period of 30 days following publication of this document.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance represents the agency's current thinking on IVDMIAs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by using the Internet. To receive “In Vitro Diagnostic Multivariate Index Assays,” you may either send an e-mail request to
CDRH maintains an entry on the Internet for easy access to information including text, graphics, and files that may be downloaded to a personal computer with Internet access. Updated on a regular basis, the CDRH home page includes device safety alerts,
This draft guidance contains information collection provisions that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the draft guidance document have been approved by OMB in accordance with the PRA under the regulations governing premarket notifications (21 CFR part 807, subpart E, OMB control number 0910-0120) premarket approval applications (21 CFR part 814, OMB control number 0910-0231), investigational device exemptions (21 CFR part 812, OMB control number 0910-0078), quality system regulation (21 CFR part 820, OMB control number 0910-0073), and medical device reporting (21 CFR part 803, OMB control number 0910-0437). The labeling provisions addressed in this guidance have been approved by OMB under OMB control number 0910-0485.
Interested persons may submit to the Division of Dockets Management (see
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a guidance entitled “Emergency Use Authorization of Medical Products.” The guidance explains FDA's policies for authorizing the use of an unapproved medical product or an unapproved use of an approved medical product during a declared emergency. This guidance finalizes the draft guidance published in the
Submit written or electronic comments on agency guidances at any time.
Submit written requests for single copies of this guidance to the Office of Counterterrorism Policy and Planning (HF-29), Food and Drug Administration, 5600 Fishers Lane, rm. 14C-26, Rockville, MD 20857. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-827-5671. Submit written comments on the guidance to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments to
Charlotte Christin, Office of Counterterrorism Policy and Planning (HF-29), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-4067.
FDA is announcing the availability of a guidance for industry, government agencies, and FDA staff entitled “Emergency Use Authorization of Medical Products.” This guidance describes the agency's general recommendations and procedures for issuance of emergency use authorizations (EUA) under section 564 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360bbb-3), which was amended by the Project BioShield Act of 2004 (Public Law 108-276).
Section 564 of the act provides for authorization of “emergency use” of a medical product, after a declaration of emergency justifying an authorization is issued by the Secretary of Health and Human Services (the Secretary) based on one of the following grounds: A determination by the Secretary of Homeland Security that there is an actual or potential “domestic emergency;” a determination by the Secretary of Defense that there is an actual or potential “military emergency;” or a determination by the Secretary that there is a public health emergency under section 319 of the Public Health Service Act that affects or has the significant potential to affect national security. The Commissioner of Food and Drugs may issue an EUA for an unapproved drug, device, or biologic, or an unapproved use of an approved drug, device, or biologic, during a declared emergency if the statutory criteria set forth in section 564 of the act are met.
On July 5, 2005, FDA published for comment in the
This guidance document is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). It represents the agency's current thinking on emergency use authorizations of medical products. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit to the Division of Dockets Management (see
This guidance refers to previously approved collections of information. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). These collections of information have been approved under OMB control numbers 0910-0308, 0910-0230, 0910-0471, 0910-0014, 0910-0078, and 0910-0595.
Persons with access to the Internet may obtain the guidance at
Fish and Wildlife Service, Interior.
Notice of availability: final comprehensive conservation plan and finding of no significant impact.
The U.S. Fish and Wildlife Service (Service) announces that the Stone Lakes National Wildlife Refuge (Refuge) Final Comprehensive Conservation Plan (CCP), and Finding of No Significant Impact (FONSI) are available for distribution. The CCP prepared pursuant to the National Wildlife Refuge System Improvement Act of 1997, and in accordance with the National Environmental Policy Act of 1969, describes how the Service will manage the Refuge for the next 15 years.
The CCP and FONSI are available now. Implementation of the CCP may begin immediately.
Copies of the CCP may be obtained by writing to the U.S. Fish and Wildlife Service, Attn: David Bergendorf, CNO Refuge Planning Office, 2800 Cottage Way, W-1832, Sacramento, CA 95825. Copies of the CCP may be viewed at this address or at Stone Lakes National Wildlife Refuge, 1624 Hood-Franklin Road, Elk Grove, CA 95757. The CCP is also available for viewing and downloading online at:
Printed copies of the CCP and FONSI are also available at the following libraries: Sacramento Central Library, 828 I Street, Sacramento, CA 95814; Arden-Dimick Library, 891 Watt Avenue, Sacramento, CA 95864; Belle Cooledge Library, 5600 South Land Park Drive, Sacramento, CA 95822; Elk Grove Library, 8962 Elk Grove Blvd., Elk Grove, CA 95624; Clarksburg Yolo County Library, 52915 Netherlands Road, Clarksburg, CA 95612; Colonial Heights Library, 4799 Stockton Blvd., Sacramento, CA 95820; Courtland Library Neighborhood Library, 170 Primasing Avenue, Courtland, CA 95615; and the Galt Branch Library (Marian O. Lawrence Library), 1000 Caroline Avenue, Galt, CA 95632.
Beatrix Treiterer, acting Project Leader, Stone Lakes National Wildlife Refuge, 1624 Hood-Franklin Road, Elk Grove, CA 95757 or David Bergendorf, Refuge Planner, 2800 Cottage Way, W-1832, Sacramento, CA 95825, phone (916) 414-6503.
The Refuge was established in 1994 primarily to protect and manage wintering habitat for migratory birds and to protect endangered and threatened species. The Refuge is located in the Beach-Stone Lakes Basin within the Sacramento Valley in southwestern Sacramento County; it lies south of the city of Sacramento, straddling Interstate 5 from the town of Freeport south to Lost Slough.
The Draft CCP and Environmental Assessment (EA) was available for a 30-day public review and comment period, which was announced via several methods including press releases; updates to constituents; and in the
The Service received 25 letters, faxes and e-mails, and one phone call on the Draft CCP and EA during the review period. Many comments were also received during two public comment meetings, which were held on October 4 and 5, 2006. The comments received were incorporated into the CCP, when possible, and are responded to in an appendix to the CCP. In the FONSI, Alternative B was selected for implementation and is the basis for the CCP. The FONSI documents the decision of the Service and is based on the information and analysis contained in the EA.
Under the selected alternative, the Refuge will continue its focus of providing wintering habitat for migratory birds and management to benefit endangered species. Management programs for migratory birds and other Central Valley wildlife will be expanded and improved and public use opportunities will also be expanded. The number of Refuge units open to the public will increase from one to five. In addition, environmental education, interpretation, wildlife observation, wildlife photography, hunting, and fishing programs will be expanded.
The selected alternative best achieves the Refuge's purposes, vision, and goals; contributes to the Refuge System mission; addresses the significant issues and relevant mandates; and is consistent with principles of sound fish and wildlife management.
In accordance with 28 CFR 50.7, notice is given that on July 20, 2007, the proposed Consent Decree in
In this action, the United States alleges that E.I. du Pont de Nemours & Co. (DuPont) violated these provisions of the Clean Air Act: standards of performance for new stationary sources, 42 U.S.C. 7411, also known as New Source Performance Standards (“NSPS”) preconstruction requirements, 42 U.S.C. 7475, also known as Prevention of Significant Deterioration (“PSD”) requirements; and permit requirements, 42 U.S.C. 7503, also known as Title V requirements. The claims relate to four DuPont sulfuric acid manufacturing plants that are located in Darrow, La.; North Bend, Ohio; Richmond, Va., and Wurtland, Ky.
The Consent Decree requires DuPont to pay a civil penalty of $4,125,000 of which $2,100,000 (60 percent) will be paid to the United States and the rest will be divided among the State of Louisiana, the State of Ohio, and the Commonwealth of Virginia. The Consent Decree further requires DuPont, at all four plants, to meet certain emission limits (for sulfur dioxide and acid mist) and to comply with applicable NSPS requirements (including performance testing and monitoring). At the plant in Louisiana, DuPont will comply with the new emission limits by installing pollution control technology. At each of the other three plants, the Consent Decree provides DuPont an option to install the required technology or to cease operations and surrender the air pollution permits and/or emissions credits.
For a period of thirty (30) days from the date of this publication, the Department of Justice will receive comments relating to the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and either e-mailed to
The proposed Consent Decree may be examined at the Office of the United States Attorney, 221 E. 4th St., Suite 400, Cincinnati, Ohio 45202, and at U.S. EPA Region V, 77 W. Jackson Blvd., Chicago, IL 60604. During the public comment period, the proposed Consent Decree may also be examined on the following Department of Justice Web site,
Pursuant to Section 221 of the Trade Act of 1974, an investigation was initiated on July 9, 2007 in response to a worker petition filed by a company official on behalf of workers at Alcraft, Pawtucket, Rhode Island.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification Regarding Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on February 9, 2007, applicable to workers of Burlington House Pioneer Plant, Burlington House Division, a subsidiary of International Textile Group, Burlington, North Carolina. The notice was published in the
At the request of a company official, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of dyed yarn and warps for ticking.
New information shows that due to a change in ownership on May 1, 2007, Burlington House Pioneer Plant, Burlington House Division, a subsidiary of International Textile Group is currently known as Burlington Manufacturing Services.
Workers separated from employment at the subject firm had their wages reported under a separate unemployment insurance (UI) tax account for Burlington Manufacturing Services.
Accordingly, the Department is amending this certification to properly reflect this matter.
The intent of the Department's certification is to include all workers of Burlington House Pioneer Plant, Burlington House Division, a subsidiary of International Textile Group, currently known as Burlington Manufacturing Services who were adversely affected by increased company imports.
The amended notice applicable to TA-W-60,771A is hereby issued as follows:
On June 20, 2007, the Department issued an Affirmative Determination Regarding Application on Reconsideration applicable to workers and former workers of the subject firm. The notice was published in the
The previous investigation initiated on April 11, 2007, resulted in a negative determination issued on May 16, 2007, was based on the finding that imports of plastic automotive parts did not contribute importantly to worker separations at the subject firm and no shift of production to a foreign source occurred. The denial notice was published in the
In the request for reconsideration, the petitioner provided additional information regarding the impact of foreign trade on production and employment at the subject firm.
Upon further review of the initial investigation, the Department requested additional list of customers from the subject firm. The new information revealed that Continental Structural Plastics, Petoskey, Michigan, supplied plastic automotive parts that were used in the production of passenger vehicles, and a loss of business with domestic manufacturers (whose workers were certified eligible to apply for adjustment assistance) contributed importantly to the workers separation or threat of separation.
In accordance with Section 246 the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor herein presents the results of its investigation regarding certification of eligibility to apply for alternative trade adjustment assistance (ATAA) for older workers.
In order for the Department to issue a certification of eligibility to apply for ATAA, the group eligibility requirements of Section 246 of the Trade Act must be met. The Department has determined in this case that the requirements of Section 246 have been met.
A significant number of workers at the firm are age 50 or over and possess skills that are not easily transferable. Competitive conditions within the industry are adverse.
After careful review of the additional facts obtained on reconsideration, I determine that workers of Continental Structural Plastics, Petoskey, Michigan, qualify as adversely affected secondary workers under Section 222 of the Trade Act of 1974, as amended. In accordance with the provisions of the Act, I make the following certification:
In accordance with Section 223 of the Trade Act of 1974 (19 U.S.C. 2273), and Section 246 of the Trade Act of 1974 (26 U.S.C. 2813), as amended, the Department of Labor issued a Certification of Eligibility to Apply for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance on May 24, 2007, applicable to workers of Dana Corporation, Heavy Vehicle Technologies and System Operations, Product Service Center, Statesville, North Carolina. The notice was published in the
At the request of the petitioners, the Department reviewed the certification for workers of the subject firm. The workers are engaged in the production of axles, transmissions, torque converters and transfer cases.
New information shows that leased workers of Adecco were employed on-site at the Statesville, North Carolina location of Dana Corporation, Heavy Vehicle Technologies and System Operations, Product Service Center. The Department has determined that the Adecco workers were sufficiently under the control of Dana Corporation to be considered leased workers.
Based on these findings, the Department is amending this certification to include leased workers of Adecco working on-site at the Statesville, North Carolina location of the subject firm.
The intent of the Department's certification is to include all workers employed at Dana Corporation, Heavy Vehicle Technologies and System Operations, Product Service Center, Statesville, North Carolina who were adversely affected by a shift in production to Belgium.
The amended notice applicable to TA-W-61,428 is hereby issued as follows:
In accordance with Section 223 of the Trade Act of 1974, as amended (19 U.S.C. 2273) the Department of Labor herein presents summaries of determinations regarding eligibility to apply for trade adjustment assistance for workers (TA-W) number and alternative trade adjustment assistance (ATAA) by (TA-W) number issued during the period of
In order for an affirmative determination to be made for workers of a primary firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(a) of the Act must be met.
I. Section (a)(2)(A) all of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. The sales or production, or both, of such firm or subdivision have decreased absolutely; and
C. Increased imports of articles like or directly competitive with articles produced by such firm or subdivision have contributed importantly to such workers' separation or threat of separation and to the decline in sales or production of such firm or subdivision; or
II. Section (a)(2)(B) both of the following must be satisfied:
A. A significant number or proportion of the workers in such workers' firm, or an appropriate subdivision of the firm, have become totally or partially separated, or are threatened to become totally or partially separated;
B. There has been a shift in production by such workers' firm or subdivision to a foreign country of articles like or directly competitive with articles which are produced by such firm or subdivision; and
C. One of the following must be satisfied:
1. The country to which the workers' firm has shifted production of the articles is a party to a free trade agreement with the United States;
2. The country to which the workers' firm has shifted production of the articles to a beneficiary country under the Andean Trade Preference Act, African Growth and Opportunity Act, or the Caribbean Basin Economic Recovery Act; or
3. There has been or is likely to be an increase in imports of articles that are like or directly competitive with articles which are or were produced by such firm or subdivision.
Also, in order for an affirmative determination to be made for secondarily affected workers of a firm and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(b) of the Act must be met.
(1) Significant number or proportion of the workers in the workers' firm or an appropriate subdivision of the firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) The workers' firm (or subdivision) is a supplier or downstream producer to a firm (or subdivision) that employed a group of workers who received a certification of eligibility to apply for trade adjustment assistance benefits and such supply or production is related to the article that was the basis for such certification; and
(3) Either—
(A) The workers' firm is a supplier and the component parts it supplied for the firm (or subdivision) described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) A loss or business by the workers' firm with the firm (or subdivision) described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for the Division of Trade Adjustment Assistance to issue a certification of eligibility to apply for Alternative Trade Adjustment Assistance (ATAA) for older workers, the group eligibility requirements of Section 246(a)(3)(A)(ii) of the Trade Act must be met.
1. Whether a significant number of workers in the workers' firm are 50 years of age or older.
2. Whether the workers in the workers' firm possess skills that are not easily transferable.
3. The competitive conditions within the workers' industry (i.e., conditions within the industry are adverse).
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) of the Trade Act have been met.
The following certifications have been issued. The date following the company name and location of each determination references the impact date for all workers of such determination.
The following certifications have been issued. The requirements of Section 222(a)(2)(A) (increased imports) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(a)(2)(B) (shift in production) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (supplier to a firm whose workers are certified eligible to apply for TAA) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
The following certifications have been issued. The requirements of Section 222(b) (downstream producer for a firm whose workers are certified eligible to apply for TAA based on increased imports from or a shift in production to Mexico or Canada) and Section 246(a)(3)(A)(ii) of the Trade Act have been met.
In the following cases, it has been determined that the requirements of 246(a)(3)(A)(ii) have not been met for the reasons specified.
The Department has determined that criterion (1) of Section 246 has not been met. The firm does not have a significant number of workers 50 years of age or older.
The Department has determined that criterion (2) of Section 246 has not been met. Workers at the firm possess skills that are easily transferable.
The Department has determined that criterion (3) of Section 246 has not been met. Competition conditions within the workers' industry are not adverse.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The investigation revealed that criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) (employment decline) have not been met.
The investigation revealed that criteria (a)(2)(A)(I.B.) (Sales or production, or both, did not decline) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
Workers From Warehouse Specialists, Corinth, MS
The investigation revealed that criteria (a)(2)(A)(I.C.) (increased imports) and (a)(2)(B)(II.B.) (shift in production to a foreign country) have not been met.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
The investigation revealed that criteria of Section 222(b)(2) has not been met. The workers' firm (or subdivision) is not a supplier to or a downstream producer for a firm whose workers were certified eligible to apply for TAA.
I hereby certify that the aforementioned determinations were issued during the period of
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on July 9, 2007, in response to a worker petition filed by a company official on behalf of workers at Hoffman Industries, Inc., Sinking Spring, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
The Department adopted a new interpretation regarding the Alternative Trade Adjustment Assistance (ATAA) program in order to provide equitable access to ATAA for worker groups whose petitions for Trade Adjustment Assistance (TAA) were still in process at the time of implementation of the ATAA program on August 6, 2003 or used an obsolete petition form that did not allow the petitioners to indicate whether or not they wished to request ATAA certification. Under this new interpretation, worker groups covered by the certification of a TAA petition that was in process on August 6, 2003 may request ATAA consideration for the TAA certified worker group. In addition, certified worker groups who filed TAA petitions after that date may also request ATAA if the petition did not include an option to apply for ATAA. The request must be made to the Department and may be made by anyone who was entitled to file the original petition under section 221(a)(1) of the Trade Act of 1974, as amended.
By letter dated June 4, 2007, five workers requested ATAA consideration for workers and former workers of International Business Machines Corporation, Tulsa, Oklahoma (subject firm) who are eligible to apply for TAA under petition TA-W-53,648.
In order for the Department to issue a certification of eligibility to apply for ATAA for the subject workers, the group eligibility requirements of section 246(a)(3)(A) of the Trade Act—(1) a significant number of adversely affected workers age 50 or over; (2) whether workers possess skills that are easily transferable; and (3)whether competitive conditions within the workers' industry are adverse—must be met. The Department has determined in this case that the requirements have been met.
The investigation revealed that at least five percent of the workforce at the subject firm is at least fifty years of age; that the subject worker group possesses skills that are not easily transferable; and that competitive conditions within the accounting industry are adverse.
After careful review of the facts obtained on investigation, I conclude that the requirements of section 246(a)(3)(A) of the Trade Act of 1974, as amended, have been met for workers at the subject firm.
In accordance with the provisions of the Act, I make the following certification:
Pursuant to Section 221 of the Trade Act of 1974, as amended, an investigation was initiated on June 26, 2007 in response to a worker petition filed by a company official on behalf of workers of Tyco Electronics Corporation, Reading, Pennsylvania.
The petitioner has requested that the petition be withdrawn. Consequently, the investigation has been terminated.
Mine Safety and Health Administration (MSHA), Labor.
The Mine Safety and Health Administration (MSHA) enforces mine operator compliance with mandatory safety and health standards that protect miners and improve safety and health conditions in U.S. Mines. This
Copies of the final decisions are posted on MSHA's Web Site at
Edward Sexauer, Chief, Regulatory Development Division at 202-693-9444 (Voice),
Under section 101 of the Federal Mine Safety and Health Act of 1977, a mine operator may petition and the Secretary of Labor (Secretary) may modify the application of a mandatory safety standard to that mine if the Secretary determines that: (1) An alternative method exists that will guarantee no less protection for the miners affected than that provided by the standard; or (2) that the application of the standard will result in a diminution of safety to the affected miners.
MSHA bases the final decision on the petitioner's statements, any comments and information submitted by interested persons, and a field investigation of the conditions at the mine. In some instances, MSHA may approve a petition for modification on the condition that the mine operator complies with other requirements noted in the decision.
On the basis of the findings of MSHA's investigation, and as designee of the Secretary, MSHA has granted or partially granted the following petitions for modification:
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The National Science Board's
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230. Please refer to the National Science Board Web site (
U.S. Nuclear Regulatory Commission (NRC).
Notice of pending NRC action to submit an information collection request to the Office of Management and Budget (OMB) and solicitation of public comment.
The NRC is preparing a submittal to OMB for review of continued approval of information collections under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Information pertaining to the requirement to be submitted:
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Submit, by September 24, 2007, comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the burden estimate accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection be minimized, including the use of automated collection techniques or other forms of information technology?
A copy of the draft supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions about the information collection requirements may be directed to the NRC Clearance Officer, Margaret A. Janney (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, by telephone at 301-415-7245, or by Internet electronic mail to
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Issuance of Environmental Assessment and Finding of No Significant Impact for license amendment.
Peter J. Lee, PhD, CHP, Health Physicist, Decommissioning Branch, Division of Nuclear Materials Safety, Region III, U.S. Nuclear Regulatory Commission, 2443 Warrenville Road, Lisle, Illinois 60532; telephone: (630) 829-9870; fax number: (630) 515-1259; or by e-mail at
The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of a licensee amendment to terminate NRC Byproduct Materials License No. 21-15209-01, which is held by NSF International (licensee). The amendment would authorize the unrestricted release of the licensee's former facility located at 789 North Dixboro Road, Ann Arbor, Michigan. The NRC has prepared an Environmental Assessment in support of this action in accordance with the requirements of 10 CFR part 51. Based on the Environmental Assessment, the NRC has determined that a Finding of No Significant Impact is appropriate. The amendment to NSF International's license will be issued following the publication of this Environmental Assessment and Finding of No Significant Impact.
The proposed action would approve NSF International's request to terminate its license and release the licensee's former facility for unrestricted use in accordance with 10 CFR part 20, subpart E. The proposed action is in accordance with NSF International's request to the U.S. Nuclear Regulatory Commission (NRC) to terminate its NRC Byproduct Material License by letter dated April 30, 2007 (ADAMS Accession No. ML071220400). The licensee is authorized to use byproduct materials, primarily carbon-14, for research and development in waste water technology. On May 1, 2007, NSF International completed removal of licensed
The licensee conducted surveys of the facility and provided this information to the NRC to demonstrate that the radiological condition of the Ann Arbor facility is consistent with radiological criteria for unrestricted use in 10 CFR 20.1402. No radiological remediation activities are required to complete the proposed action.
The licensee is requesting this license amendment because it has discontinued licensed activities. The NRC is fulfilling its responsibilities under the Atomic Energy Act to make a decision on the proposed action for decommissioning that ensures that residual radioactivity is reduced to a level that is protective of the public health and safety and the environment, and allows the facility to be released for unrestricted use.
The NRC staff reviewed the information provided and surveys performed by the licensee to demonstrate that the release of the Ann Arbor facility is consistent with the radiological criteria for unrestricted use specified in 10 CFR 20.1402. Based on its review, the staff determined that there were no radiological impacts associated with the proposed action because no radiological remediation activities were required to complete the proposed action, and that the radiological criteria for unrestricted use in § 20.1402 have been met.
Based on its review, the staff determined that the radiological environmental impacts from the proposed action are bounded by the “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities” (NUREG-1496). Additionally, no non-radiological or cumulative impacts were identified. Therefore, the NRC has determined that the proposed action will not have a significant effect on the quality of the human environment.
An alternative to the proposed action is to take no action. Under the no-action alternative, the licensee's facility would remain under an NRC license and would not be released for unrestricted use. This would result in no change to current conditions at the Ann Arbor facility. The no-action alternative is not acceptable because it is inconsistent with 10 CFR 30.36, which requires that a licensee who has permanently ceased licensed activities begin decommissioning its facility. This alternative would impose an unnecessary regulatory burden in controlling access to the former Ann Arbor facility, and limit potential benefits from the future use of the facility.
The NRC staff concluded that the proposed action is consistent with the NRC's unrestricted release criteria specified in 10 CFR 20.1402. Because the proposed action will not significantly impact the quality of the human environment, the NRC staff concludes that the proposed action is the preferred alternative.
The NRC staff has determined that the proposed action will not affect listed species or critical habitats. Therefore, no further consultation is required under Section 7 of the Endangered Species Act. Likewise, the NRC staff has determined that the proposed action is not a type of activity that has potential to cause effect on historic properties. Therefore, consultation under Section 106 of the National Historic Preservation Act is not required.
The NRC consulted with Mr. Robert Skowronek, Chief, Radioactive Material and Medical Waste Materials Unit, Waste and Hazardous Materials Division, Michigan Department of Environmental Quality. Mr. Skowronek was provided an electronic draft of the EA for comment on July 9, 2007. Mr. Skowronek responded to the NRC by e-mail on July 10, 2007, indicating that the State had no comments regarding the NRC Environmental Assessment for the release of the licensee's Ann Arbor facility located at 789 North Dixboro Road.
On the basis of the EA in support of the proposed license amendment to release the site for unrestricted use, the NRC has determined that the proposed action will not have a significant effect on the quality of the human environment. Thus, an environmental impact statement for the proposed action is not warranted.
Documents related to this action, including the application for amendment and supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. Lori Bestervelt, NSF International, letter to U.S. Nuclear Regulatory Commission, April 30, 2007 (ADAMS Accession No. ML071220400).
2. U.S. Nuclear Regulatory Commission, “Environmental Review Guidance for Licensing Actions Associated with NMSS Programs,” NUREG-1748, August 2003.
3. U.S. Nuclear Regulatory Commission, “Generic Environmental Impact Statement in Support of Rulemaking on Radiological Criteria for License Termination of NRC-Licensed Nuclear Facilities,” NUREG-1496, August 1994.
4. NRC, NUREG-1757, “Consolidated NMSS Decommissioning Guidance,” Volumes 1-3, September 2003.
Documents may also be viewed electronically on the public computers located at the NRC's PDR, O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
For the Nuclear Regulatory Commission.
Week of July 30, 2007.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
Week of July 30, 2007—Tentative
1:25 p.m. Affirmation Session (Public Meeting) (Tentative) a. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), LBP-07-9 (June 29, 2007) (Tentative).
This meeting will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: Michelle Schroll, (301) 415-1662.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify the NRC's Disability Program Coordinator, Rohn Brown, at 301-415-2279, TDD: 301-415-2100, or by e-mail at
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq proposes to modify pricing for Nasdaq members using the Nasdaq Market Center. Nasdaq will implement this rule change on July 2, 2007. The text of the proposed rule change is available at Nasdaq,
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
On June 1, 2007,
Market participants using Nasdaq for routing orders have the ability to instruct as to the conditions under which routing should occur. One possibility is to route without checking the Nasdaq book; another is to route after checking the Nasdaq book only to extent of displayed liquidity; and another is to send the full order for execution against the book prior to routing, thereby allowing undisplayed reserved size to be accessed. For example, if displayed size at the inside was 1000 shares and 10,000 shares were in reserve at that price, an order for 10,000 shares could be fully executed in Nasdaq if the full order was sent, but would be routed if the order accessed only the displayed size.
Both the changes made in the instant proposed rule change and the changes made in SR-NASDAQ-2007-055 are designed to enhance the quality of Nasdaq's market by providing an incentive for members to enter orders that check the full size of the Nasdaq book prior to routing. An increase in the extent to which members check the book will in turn encourage liquidity providers to post executable quotes in Nasdaq. Moreover, since there is generally far more undisplayed liquidity than displayed liquidity at the inside price, the proposed change will encourage members to execute their orders in Nasdaq to the fullest extent possible.
For orders that check the book only to the extent of displayed interest, the fee will be $0.00035 per share executed when routed to the NYSE for execution and $0.0035 per share executed when routed elsewhere. At the same time, however, Nasdaq is lowering the fee for Directed Intermarket Sweep Orders sent to the NYSE, from $0.0035 to $0.00035 per share executed, in keeping with the overall prevailing level of fees for routing to NYSE.
Finally, for the month of July 2007, Nasdaq is lowering: (i) The volume level required for receiving a liquidity provider credit of $0.0025 per share executed from 35 million average daily shares of liquidity provided to 30
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
The foregoing proposed rule change has become effective upon filing with the Commission pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Nancy M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under Supplementary Information. We are required to publish this notice in the
Please submit comments by September 24, 2007.
You may submit comments identified by DOT DMS Docket Number FHWA-2007-28755 by any of the following methods:
Cindy McMickens, 202-366-6363, Office of Human Resources, Student Outreach and Career Entry Group, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are from 7:30 a.m. to 4 p.m., Monday through Friday, except Federal holidays.
• The actual 1-page STIPG Application.
• A copy of the most recent Transcript/Grade Record/Report.
• At least one reference (if possible with comments) from a department chair, professor, advisor, employer using the attached 1-page Reference Form.
• A current 1-page resume reflecting work experience, volunteerism, awards, leadership, and extra curricular activities.
• And the actual 1-page, 2007 Applicant's Area of Interest/Geographical Preference Sheet, also included on this site.
• For Undergraduate Students: A typed essay, 1-page, double-spaced, minimum 12-point type, on your transportation interests, describing how participation in the 2007 STIPDG will enhance educational and career plans and goals.
• For Graduate Students: A writing sample representing your educational and career plans and goals.
• For Law Students: A legal writing sample.
The Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended; and 49 CFR 1.48.
Federal Highway Administration (FHWA), DOT.
Notice of Intent.
The FHWA is issuing this notice to advise the public that an Environmental Impact Statement will be prepared for a proposed interchange on U.S. Interstate Highway 80 in Sarpy County, Nebraska.
Mr. Edward Kosola, Realty/Environmental Officer, FHWA, Federal Building, Room 220, 100 Centennial Mall North, Lincoln, NE 68508-3851, (402) 437-5765. Mr. Randy Peters, Planning and Project Development Engineer, Nebraska Department of Roads, Box 94759, 1500 Highway 2, Lincoln, NE 68509, (402) 479-4795. Mr. Thomas Lynam, Highway Superintendent, Sarpy County, 15100 South 84th Street, Papillion, NE 68046, (402) 339-4606.
The FHWA in cooperation with the Nebraska Department of Roads and Sarpy County, Nebraska, will prepare an Environmental Impact Statement (EIS) to study a proposed interchange on U.S. Interstate Highway 80 (I-80) at the location of the existing Pflug Road overpass in Sarpy County. The proposed interchange location is approximately three miles east of the Platte River Bridge.
The Pflug Road overpass has recently been reconstructed as part of widening I-80 to six lanes between Omaha and Lincoln. The reconstructed overpass consolidates the Pflug and Ruff Road overpass bridges at one location 1,300 feet southwest of Pflug Road to not preclude possible future interchange improvements, including construction of ramps.
The proposed Pflug Road interchange is shown in the Sarpy County Comprehensive Development Plan adopted by the Sarpy County Board in 2005, as well as in the (Omaha) Metropolitan Area Planning Agency's (MAPA) 2030 Long Range Transportation Plan adopted in 2006. The impetus for the project is anticipated future growth and development in southern Sarpy County and along the I-80 corridor.
Alternatives to be analyzed in the Interchange Justification Report (IJR) and EIS include (1) a partial cloverleaf at the current Pflug Road location, (2) a tight diamond with a skew at the current Pflug Road location, (3) improvements to the existing Gretna interchange, (4) an interchange at the 180th Street location, and (5) the no build alternative. The proposed study area for the alternatives analysis will extend from the Platte River to 180th Street. The study area for the EIS will be based on the area of potential effect for those alternatives carried forward for further analysis.
To date, the main environmental concern that has been expressed is the effect of cumulative impacts on fish and wildlife resources. Concerns have been raised that increased access from the interchange will result in private development that may negatively affect the Platte River.
A Coordination Plan is being prepared for the project to define the agency and public participation process for the environmental review. An agency scoping meeting and a public information meeting are planned. Letters describing the proposed action and soliciting comments will be sent to appropriate federal, state and local agencies, and to private organizations and citizens who are known to be interested in this proposed project. A Draft EIS will be prepared and a public hearing will be held. Public notice will be given of the time and place of the public meetings and public hearing.
To ensure that the full range of issues related to this proposed action are addressed and all significant issues are identified, comments and suggestions are invited from all interested parties. Comments or questions concerning this proposed action and the EIS should be directed to the FHWA or the Nebraska Department of Roads at the address provided.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA.
This notice announces actions taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to various proposed highway projects in the State of Alaska. Those actions grant approvals for the projects.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on any of the listed highway projects will be barred unless the claim is filed on or before January 22, 2008. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period still applies.
Mr. Dale J. Lewis, Area Liaison Engineer, FHWA Alaska Division, P.O. Box 21648, Juneau, Alaska 99802-1648; office hours 7 a.m.-4:30 p.m. (AST), phone (907) 586-7429; e-mail
Notice is hereby given that the FHWA has taken final agency actions by issuing approvals for the following highway projects in the State of Alaska that are listed below. The actions by the Federal agency on the projects, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) issued in connection with the projects. The EA, FONSI, and other documents from the FHWA files for the listed projects are available by contacting the FHWA or the State of Alaska Department of Transportation & Public Facilities at the addresses provided above. EA and FONSI documents can be viewed and downloaded from the project Web site at
This notice applies to all FHWA decisions and approvals on the listed projects as of the issuance date of this notice and all laws and Executive
1. General: National Environmental Policy Act (NEPA) [42 U.S.C. 4321-4351]; Federal-Aid Highway Act [23 U.S.C. 109].
2. Air: Clean Air Act, [42 U.S.C. 7401-7671(q)].
3. Land: Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303].
4. Wildlife: Endangered Species Act of 1973 [16 U.S.C. 1531-1544 and Section 1536]; Anadromous Fish Conservation Act [16 U.S.C. 757(a)-757(g)]; Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)], Migratory Bird Treaty Act [16 U.S.C. 703-712]; Magnuson-Stevenson Fishery Conservation and Management Act 1976 as amended [16 U.S.C. 1801
5. Historic and Cultural Resources: Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470(f) et seq.] Archeological Resources Protection Act of 1977 [16 U.S.C. 470(aa)-11]; Archeological and Historic Preservation Act [16 U.S.C. 469-469(c)].
6. Social and Economic: Civil Rights Act of 1964 [42 U.S.C. 2000(d)-2000(d)(1)]; Farmland Protection Policy Act (FPPA) [7 U.S.C. 4201-4209].
7. Wetlands and Water Resources: Clean Water Act [33 U.S.C. 1251-1377]; Coastal Zone Management Act [16 U.S.C. 1451-1465]; Land and Water Conservation Fund (LWCF) [16 U.S.C. 4601-4604]; Wild and Scenic Rivers Act [16 U.S.C. 1271-1287].
8. Executive Orders: E.O. 11990 Protection of Wetlands; E.O. 11988 Floodplain Management; E.O. 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations; E.O. 13186 Migratory Birds; E.O. 11514 Protection and Enhancement of Environmental Quality.
The projects subject to this notice are:
1. Project Location: Anchorage, Alaska, Municipality of Anchorage, New Seward Highway (NSH). Project Reference Number: FRAF-CA-MGS-NH-OA3-1(27). Project type: Road improvements to NSH between Rabbit Creek Road and 36th Avenue, a distance of approximately eight miles. The NSH will remain a controlled access corridor and noise barriers, fencing, and pathways throughout the corridor will be upgraded or constructed as warranted and continuous illumination will be added to augment the existing high-mast interchange lighting. Between O'Malley Road and Dimond Boulevard the existing NSH will be widened from four to six lanes to address current and future travel demand and mobility needs. NEPA document; Environmental Assessment and Finding of No Significant Impact issued November 4, 2006 and available electronically at
2. Project Location: Wasilla, Alaska, Matanuska-Susitna Borough, Seward Meridian Parkway (SMP). Project Reference Number: IM-0001(302). Project type: Road improvements to SMP from the Parks Highway to Bogard Road and extension of the road one mile from Bogard Road to Seldon Road; a distance of approximately three miles. The selected alternative will expand the existing SMP from a two-lane facility to a four-lane facility with a center turn lane and a multi-use separated pathway. The project will increase the capacity of SMP and provide a key system line from Seldon Road to the Park Highway. NEPA document; Environmental Assessment and Finding of No Significant Impact issued April 2, 2007 and available electronically at
23 U.S.C. § 139(l)(1).
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by FHWA, Army Corps of Engineers (USACE), DoD, and Other Federal Agencies.
This notice announces actions taken by the FHWA, USACE, and other Federal Agencies that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, Cheyenne Overpass, Project No. DHP-1564(001), Key No. 7508, Pocatello in Bannock County in the State of Idaho. Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before January 22, 2008. If the Federal law that authorizes judicial review of a claim provides a time period of less than 180 days for filing such claim, then that shorter time period applies.
For HWA: Mr. Peter Hartman, Division Administrator, Federal Highway Administration, 3050 Lakeharbor Lane Suite 126, Boise, Idaho 83703; telephone: (208) 334-1843; e-mail:
Notice is hereby given that the FHWA has taken final agency actions subject to 23 U.S.C. 129(l)(1) by issuing licenses, permits, and approvals for the following highway project in the State of Idaho: Cheyenne Overpass, Pocatello from Bannock Highway to South 5th Avenue in Bannock County. The project will be a 1.1 mile long, five-lane arterial street with grade separations at 2nd Avenue and Interstate 15. It will begin at Bannock Highway south of Tech Farm Road and proceed to the east over the Portneuf River, Union Pacific Railroad tracks, and 2nd Avenue. Further east the new roadway will cross under Interstate 15 and end at South 5th Avenue. The proposed arterial will be on new alignment. The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Environmental Assessment (EA) and supporting documentation for the project. The EA was released for public review on August 24, 2005; a Finding of No Significant Impact (FONSI) was issued by the FHWA on May 14, 2007. The EA, FONSI, and other supporting information are available by contacting the FHWA or the Idaho Transportation Department at the addresses provided above. The EA and FONSI can be viewed and downloaded from the project Web site at:
Uniform Relocation Assistance and Real Property Acquisition Act of 1970 (42 U.S.C. 4601
Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976: 42 U.S.C. 6901,
Wildflowers 23 U.S.C. 319(B) (Pub. L. 100-17).
23 U.S.C. 139(1)(1).
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel LAZZARONE.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-28790 at
Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD's regulations at 46 CFR part 388.
Submit comments on or before August 27, 2007.
Comments should refer to docket number MARAD-2007-28790. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel LAZZARONE is:
Anyone is able to search the electronic form of all comments
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation.
Invitation for public comments on a requested administrative waiver of the Coastwise Trade Laws for the vessel Sancerre.
As authorized by Public Law 105-383 and Public Law 107-295, the Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below. The complete application is given in DOT docket MARAD-2007-28791 at
Comments should also state the commenter's interest in the waiver application, and address the waiver criteria given in § 388.4 of MARAD's regulations at 46 CFR Part 388.
Submit comments on or before August 27, 2007.
Comments should refer to docket number MARAD-2007-28791. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Joann Spittle, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue, SE., Room W21-203, Washington, DC 20590. Telephone 202-366-5979.
As described by the applicant the intended service of the vessel SANCERRE is:
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
By order of the Maritime Administrator.
Maritime Administration, Department of Transportation
Notice of revised Voluntary Tanker Agreement (VTA); notice of meeting.
The Maritime Administration announces the text of a revised Voluntary Tanker Agreement, pursuant to Section 708 of the Defense Production Act of 1950, as amended (50 App. U.S.C. 2158). This text revises and replaces the Agreement as it was last published in Volume 48 of the
Mr. Thomas Christensen, Director, Office of Emergency Preparedness, Room W23-304, Maritime Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366-5909,
An open meeting for the purpose of developing the final text of the VTA will convene at 10 a.m., Wednesday, August 29, 2007, in Conference Rooms 8-10, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590. Notice of intent to attend given to the point of contact above will assure adequate seating and more efficient access at security-controlled entrances.
Pursuant to the authority contained in Section 708, Defense Production Act of 1950 as amended (50 App. U.S.C. 2158) the Maritime Administrator, (“the Administrator”), after consultation with the Department of Defense (DoD) and representatives of the tanker industry, has developed this Voluntary Tanker Agreement. The Agreement establishes the terms, conditions and procedures under which Participants agree voluntarily to make tankers available to DoD. The Agreement further affords Participants defenses to civil and criminal actions for violations of antitrust laws when carrying out the Agreement. The Agreement is designed to create a close working relationship among the Administrator, the Commander of U.S. Transportation Command (the DoD-designated representative for purposes of this Agreement) and the Participants through which DoD requirements and the needs of the civil economy can be met through cooperative action. The Agreement affords Participants flexibility to respond to defense requirements and adjust their commercial operations to minimize disruption whenever possible.
The Secretary of Defense (SecDef) has approved this Agreement as an Emergency Preparedness Program (EPP) pursuant to 46 U.S.C. 53107.
This is a replacement for the Agreement as it first appeared in Volume 48 of the
The Administrator has determined, in accordance with Section 708(c)(1) of the Defense Production Act of 1950 (DPA), that conditions exist which may pose a direct threat to the national defense of the United States or its preparedness programs and, under the provisions of Section 708, has certified to the Attorney General that a standby agreement for the utilization of tanker capacity is necessary for the national defense. The Attorney General, in consultation with the Chairman of the Federal Trade Commission, has issued a finding that tanker capacity to meet national defense requirements cannot be provided by the industry through a voluntary agreement having less anticompetitive effects or without a voluntary agreement.
The purpose of the Agreement is to provide a responsive transition from peace to contingency operations through procedures agreed in advance to provide tanker capacity to support DoD contingency requirements. The Agreement establishes procedures for the commitment of tanker capacity to satisfy such requirements. The Agreement is intended to promote and facilitate DoD's use of existing commercial tanker resources in a manner which minimizes disruption to commercial operations whenever possible.
The Agreement will change from standby to active status upon activation by appropriate authority as described in Section VI.
1. Sections 101 and 708, DPA (50 App. U.S.C. 2158); E.O. 12919, 59 FR 29525 (June 7, 1994); E.O. 12148, 3 CFR 1979 Comp., p. 412, as amended; 46 CFR Part 340; DOT Order 1900.9.
2. Section 501 of E.O.12919, as amended, delegated the authority of the President under Section 708 of the DPA to the Secretary of Transportation (SecTrans), among others. SecTrans delegated to the Administrator the authority under which the Voluntary Tanker Agreement is sponsored in DOT Order 1900.9.
1. Section 113 and Chapter 6 of Title 10 of the United States Code.
2. DoD Directive 5158.4 designating Commander USTRANSCOM to provide air, land, and sea transportation for the DoD.
1. Tanker operators of vessels greater than 20,000 deadweight tons may become Participants in this Agreement by submitting an executed copy of the form specified in Section VII of this Agreement.
2. Owners and operators of Integrated Tug-Barges (ITBs) and Articulated Tug-Barges (ATBs) greater than 20,000 deadweight tons (DWT) may become Participants in this Agreement.
3. For the purposes of this Agreement, “Participant” includes the corporate entity entering into this Agreement and all United States subsidiaries and affiliates of that entity which own or operate ships in the course of their regular business and in which that entity has more than fifty (50) percent control either by stock ownership or otherwise.
4. Vessels of a Participant subject to the provisions of this Agreement shall not be subject to the provisions of any other DoD Sealift Readiness Program (SRP).
5. A list of Participants will be published annually in the
Participation in this Agreement is effective upon execution of the application form by the Participant and the Administrator or their authorized designees and remains in effect until terminated in accordance with 44 CFR 332.4.
Participants may withdraw from this Agreement subject to the fulfillment of obligations incurred under the Agreement prior to the date such withdrawal becomes effective, by giving written notice to the Administrator. Withdrawal from this Agreement will not deprive a Participant of an antitrust defense otherwise available to it in accordance with DPA Section 708 for the fulfillment of obligations incurred prior to withdrawal. A Participant otherwise subject to the DoD SRP that voluntarily withdraws from this Agreement will become subject again to the DoD SRP.
Participants acknowledge and agree to abide by all provisions of Section 708, DPA, as amended (50 App. U.S.C. 2158), and regulations related thereto which are promulgated by the SecTrans, the Attorney General, and the Chairman of the Federal Trade Commission.
1. The Attorney General may modify this Agreement, in writing, after consultation with the Chairman of the Federal Trade Commission, SecTrans, through her representative MARAD, and SecDef, through his representative, Commander USTRANSCOM. The Administrator, Commander USTRANSCOM and Participants may modify this Agreement at any time by mutual agreement, but only in writing with the approval of the Attorney General and the Chairman of the Federal Trade Commission.
2. A Participant may propose amendments to the Agreement at any time.
Administrative and out-of-pocket expenses incurred by Participants shall be borne solely by participants.
1. MARAD and the DoD have primary responsibility for maintaining records in accordance with 44 CFR Part 332.
2. The Director, Office of Emergency Preparedness, MARAD, shall be the official custodian of records related to the carrying out of this Agreement, except records of direct dealings between the DoD and Participants.
3. For direct dealings between the DoD and Participants, the designee of the SecDef shall be the official custodian of the record but the Director of the Office of Emergency Preparedness, MARAD shall have complete access thereto.
4. In accordance with 44 CFR 332.3(d), each Participant shall maintain for five years all minutes of meetings, transcripts, records, documents, and other data, including any communications with other Participants or with any other member of the industry, related to the carrying out of this Agreement. Each Participant agrees to make available to the Administrator, the Commander USTRANSCOM, the Attorney General, the Director of the Federal Emergency Management Agency, and the Chairman of the Federal Trade Commission for inspection and copying at reasonable times and upon reasonable notice any item that this section requires the Participant to maintain. Any record maintained under this subsection shall be available for public inspection and copying, unless exempted on the grounds specified in 5 U.S.C. 552(b)(1) and (3) or identified as privileged and confidential information in accordance with Section 705(e) of the DPA, as amended, and 94 CFR Part 332.
The Administrator upon presidential authorization may requisition ships of non-Participants to supplement capacity made available for defense operations under this Agreement and to balance the economic burden of defense support among companies operating in U.S. trade. Non-Participant owners of requisitioned tankers will not participate in the Tanker Requirements Committee and will not enjoy the immunities provided by this Agreement.
In situations where the activation of the Agreement deprives a Participant of all or a portion of its Jones Act tonnage and, at the same time, creates a general shortage of Jones Act tonnage on the market, the Administrator may request that the Assistant Commissioner, Office of Regulations and rulings, U. S. Customs and Border Protection, Department of Homeland Security grant a temporary waiver of the provisions of the Jones Act to permit a Participant to charter or otherwise utilize non-Jones Act tonnage. The tonnage for which such waivers are requested will be approximately equal to the Jones Act tonnage chartered to the DoD and any waiver that may be granted will be effective for the period that the Jones Act tonnage is on charter to the DoD plus a reasonable time for termination of the replacement tonnage charters as determined by the Administrator.
Notwithstanding 10 U.S.C. 2631, 46 U.S.C. 55304 (formerly Public Resolution 17), 46 U.S.C. 55302, 55305, 55312 or 55314 (formerly Sections 901(a), 901(b), and 901b of the Merchant Marine Act, 1936), or any other cargo preference law of the United States—
1. A Participant may operate or employ in foreign commerce a foreign-flag vessel or foreign-flag vessel capacity as a temporary replacement for a United States-documented vessel or United States-documented vessel capacity that is activated by the SecDef under an Emergency Preparedness Agreement or under a primary DoD-approved SRP; and
2. Such replacement vessel or vessel capacity shall be eligible during the replacement period to transport preference cargoes subject to 10 U.S.C. 2631, 46 U.S.C. 55304 (formerly Public Resolution 17), and 46 U.S.C. 55302, 55305, 55312 or 55314 (formerly Sections 901(a), 901(b), and 901b of the Merchant Marine Act, 1936) to the same extent as the eligibility of the vessel or vessel capacity replaced.
Under the provisions of Subsection 708(j), DPA, as amended (50 App. U.S.C. 2158(j)), each Participant in this Agreement shall have available as a defense to any civil or criminal action brought for violation of the antitrust laws, with respect to any act or omission to act to develop or carry out this Agreement, that such act or omission to act was taken in good faith by the Participant in the course of developing or carrying out this Agreement and that the Participant fully complied with the provisions of the Act, and the rules promulgated thereunder, and acted in accordance with the terms of this Agreement. This defense shall not be available to the Participant for any act or omission occurring after the termination of this Agreement, nor shall it be available, upon the modification of this Agreement, with respect to any subsequent act or omission that is beyond the scope of the modified Agreement, except that no such termination or modification will be accomplished in a way that will deprive Participants of antitrust defense for the fulfillment of obligations incurred. This defense shall be available only if and to the extent that the Participants asserting it demonstrate that the action, which includes a discussion or agreement, was within the scope of the Agreement. The person asserting the defense bears the burden of proof. The defense shall not be available if the person against whom it is asserted shows that the action was taken for the purpose of violating the antitrust laws.
1. Each Participant agrees to contribute tanker capacity as requested by the Administrator in accordance with Section V. B. below, at such times and in such amounts as the Administrator, as requested by DoD, shall determine to be necessary to meet the essential needs of the DoD for the transportation of DoD MILSPEC petroleum and petroleum products in bulk by sea.
2. Each Participant further agrees to make tankers and tanker capacity available to other Participants when requested by the Administrator, on the advice of the Tanker Requirements Committee, in order to ensure that
1. Any entity receiving payments under the Maritime Security Program (MSP) pursuant to the Maritime Security Act of 2003 (MSA 2003) (Pub. L. 108-136) shall become a Participant with respect to all tankers enrolled in the MSP at all times until the date the MSP operating agreement would have terminated according to its original terms. Such participation will satisfy the requirement for an MSP participant to be enrolled in an emergency preparedness program approved by SecDef as provided in 46 U.S.C. § 53107.
2. Participants hereto not receiving MSP payments pursuant to MSA 2003 agree to contribute tanker capacity under the Agreement in the proportion that its “controlled tonnage” bears to the total “controlled tonnage” of all Participants. Because exact proportions may not be feasible, each Participant agrees that variances are permissible at the discretion of the Administrator.
3. Clean tankers and clean tonnage shall mean tankers inspected and approved by DESC Quality Representatives, capable of meeting DoD quality standards, and able to carry refined MILSPEC petroleum products.
a. Chemical tankers and tankers in dirty trade may contribute clean tanker capacity only after being certified as being able to meet DoD quality standards to carry refined MILSPEC petroleum products.
4. “Controlled tonnage” shall mean tankers, including ITBs and ATBs of over 20,000 DWT capacity and present military usefulness in the transportation of refined DoD cargoes pursuant to the requirements of associated warplans:
a. In which, as of the effective date of the activation of this Agreement, the Participant or any of its U.S. subsidiaries or affiliates has a controlling interest and which are registered in any of the following countries: The United States, Liberia, Panama, Honduras, the Bahamas, or the Marshall Islands; PLUS
b. Ships which are on charter or under contract to such Participant for a period of six (6) months or more from the effective date of activation of the Agreement, regardless of flag of registry, exclusive of tonnage available to the Participant under contracts of affreightment and consecutive voyage charter; provided that, in the event an owner of a vessel terminates a time charter in accordance with a war clause, the affected tonnage will be excluded from the chartering Participant's controlled tonnage; PLUS
c. Any other non-U.S.-flag tonnage which a Participant may offer to designate as “controlled tonnage” and which the Tanker Requirements Committee accepts; MINUS
d. Tankers described in subparagraphs, a. and b. which are chartered out or under contract to others for a remaining period of six (6) months or more from the effective date of activation of this Agreement: MINUS
e. Certain vessels which are fitted with special gear and are on permanent station for the storage of crude oil from a production platform and vessels which may have a dual role of production storage and transportation use to a limited location.
5. This Agreement shall not be deemed to commit any vessel with respect to which the law of the country of registration requires the approval of the government before entering into this Agreement of furnishing such vessel under the terms of this Agreement until such time as the required approval has been obtained.
6. The obligations of Participants to contribute clean capacity under the Agreement shall be calculated on a proportionate basis wherever possible among the Participants by the Tanker Requirements Committee.
7. A vessel on charter to a Participant shall not be subject to a relet to the DoD in the case where the period of the relet would be longer than the term of the Participant's incharter or in the case where the relet would otherwise breach the terms of the incharter, but such tonnage shall be included in the calculation of the Participant's “controlled tonnage”.
8. The Administrator retains the right under law to requisition ships of Participants. A Participant's ships which are directly requisitioned by the U.S. Government or which are called up pursuant to other U.S. Government voluntary arrangements shall be credited against the Participant's proportionate contribution under this Agreement. Ships on charter to the DoD when this Agreement is activated shall not be so credited.
1. The rate of charter hire applicable to each charter under this Agreement shall be the “prevailing market rate” effective at the time of the proposed loading of the vessel. The “prevailing market rate” shall be determined by the Military Sealift Command (MSC) Contracting Officer utilizing the price analysis techniques set forth in FAR Part 15.4 to determine that the negotiated rates are fair and reasonable, utilizing market or previous contract prices. Time charter hire rates, for either U.S. or foreign-flag tankers, shall be expressed in terms of a per diem rate(s).
2. The rate of charter hire fixed with respect to each charter shall apply for the entire period of the charter, except that:
a. For a consecutive voyage charter, the rate of charter shall be increased or decreased to reflect increases or decreases in the price of bunker fuel applicable in the area of the vessel's trade;
b. Reimbursement for increased war risk insurance premiums will be made in accordance with section V.E.;
1. Increased War risk insurance premiums for time chartered vessels will be paid by DoD or MARAD war risk insurance policies will be implemented.
2. For voyage and consecutive voyage charters, the Participant will be reimbursed for increases in war risk insurance premiums that are applicable to the actual voyage but are announced after the charter rate is established by the broker panel.
3. For any ship chartered under this Agreement, the SecDef may procure from the SecTrans war risk insurance on hull and machinery, war risk protection and indemnity insurance, and Second Seaman's War Risk Insurance, subject to 46 U.S.C. § 53905 (formerly Section 1203 of the Merchant Marine Act, 1936).
This Agreement may be activated at the request of The Commander USTRANSCOM, with the approval of SecDef, to support Contingency operations when there is a tanker capacity emergency. A tanker capacity emergency will be deemed to exist when tanker capacity required to
1. There is established a Tanker Requirements Committee (the “Committee”) to provide USTRANSCOM, MARAD and Participants a forum to:
a. Analyze DoD Contingency tanker requirements.
b. Identify commercial tanker capacity that may be used to meet DoD requirements related to Contingencies and, as requested by USTRANSCOM, exercises, and special movements.
c. Develop and recommend Concepts of Operations (CONOPS) to meet DoD-approved Contingency requirements and, as requested by USTRANSCOM, exercises and special movements.
d. Advise the Administrator on the tanker capacity that each Participant controls and is capable of meeting Contingency requirements.
2. The Committee will be co-chaired by MARAD and USTRANSCOM and will convene as jointly determined by the co-chairs.
3. The Committee will not be used for contract negotiations and/or contract discussions between carriers and DoD; such negotiations and/or discussions will be in accordance with applicable DoD contracting policies and procedures.
4. The Committee will consist of designated representatives from MARAD, USTRANSCOM, to include Military Sealift Command, Defense Energy Support Center, each Participant, and maritime labor. Other attendees may be invited at the discretion of the co-chairs. Representatives will provide technical advice and support to ensure maximum coordination, efficiency and effectiveness in the use of Participants resources. All Participants will be invited to open Committee meetings. For selected Committee meetings, attendance may be limited to designated Participants to meet specific operational requirements.
5. The Committee co-chairs shall:
a. Notify the Attorney General, the Chairman of the Federal Trade Commission, and all Participants of the time, place and nature of each meeting and of the proposed agenda of each meeting to be held to carry out this Agreement:
b. Provide for publication in the
c. Establish the agenda for each meeting and be responsible for adherence to the agenda;
d. Provide for a written summary or other record of each meeting and provide copies of transcripts or other records to the Attorney General, the Chairman of the Federal Trade Commission, and all Participants; and
e. Take necessary actions to protect confidentiality of data discussed with or obtained from Participants.
MSC, as designated by USTRANSCOM, will deal directly with tanker operators in the making of charter parties and other arrangements to meet the defense requirement, keeping the Administrator informed. To reduce risk to owners and to control cost to the government, all government charters will be time charters, unless specifically designated as voyage charter by the Contracting Officer. If vessels are chartered between Participants, Participants will keep the Administrator informed. The Administrator will keep the Attorney General and the Chairman of the Federal Trade Commission informed of the actions taken under this Agreement.
MSC, as the contracting officer, will notify the Administrator as far as possible in advance of the prospective termination of the need for tanker capacity under this Agreement
The Administrator has adopted and makes available a form on which tanker operators may apply for and become Participants in this Agreement (“Application and Agreement to Participate in the Voluntary Tanker Agreement”). The form will incorporate by reference the terms of this Agreement.
The applicant identified below hereby applies to participate in the Maritime Administration's agreement entitled “Voluntary Tanker Agreement.” The text of said Agreement is published in __
The applicant, if selected, hereby acknowledges and agrees to the incorporation by reference into this Application and Agreement of the entire text of the Voluntary Tanker Agreement published in _
The applicant, as Participant, agrees to comply with the provisions of Section 708 of the Defense Production Act of 1950, as amended, the regulations of 44 CFR Part 332 and as reflected at 49 CFR Subtitle A, and the terms of the Voluntary Tanker Agreement. Further, the applicant, if selected as a Participant, hereby agrees to contractually commit to make vessels or capacity available for use by the Department of Defense and to other Participants for the purpose of meeting national defense requirements.
By Order of the Maritime Administrator.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before August 27, 2007 to be assured of consideration.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before August 27, 2007 to be assured of consideration.
The Department of the Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning an information collection titled, “Examination Questionnaire.”
Comments must be submitted by September 24, 2007.
Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-0199, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874-4448, or by electronic mail to
Additionally, you should send a copy of your comments to OCC Desk Officer, 1557-0199, by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to (202) 395-6974.
You may request additional information or a copy of the collection and supporting documentation submitted to OMB by contacting: Mary Gottlieb, (202) 874-5090, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
The OCC is proposing to extend the approval for the following information collection:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or startup costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Small Business/Self Employed—Taxpayer Burden Reduction Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The TAP will be discussing issues pertaining to increasing compliance and lessening the burden for Small Business/Self Employed individuals.
The meeting will be held Thursday, August 16, 2007.
Marisa Knispel at 1-888-912-1227 or 718-488-3557.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Small Business/Self Employed—Taxpayer Burden Reduction Committee of the Taxpayer Advocacy Panel will be held Thursday, August 16, 2007 from 12:30 p.m to 1:30 p.m ET via a telephone conference call. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Marisa Knispel. Ms. Knispel can be reached at 1-888-912-1227 or 718-488-3557, or post comments to the Web site:
The agenda will include the following: Various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 4 Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comment, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, August 21, 2007, at 10 a.m., Central Time.
Mary Ann Delzer at 1-888-912-1227, or (414) 231-2360.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Area 4 Taxpayer Advocacy Panel will be held Tuesday, August 21, 2007, at 10 a.m., Central Time via a telephone conference call. You can submit written comments to the Panel by faxing the comments to (414) 231-2363, or by mail to Taxpayer Advocacy Panel, Stop 1006MIL, PO Box 3205, Milwaukee, WI 53201-3205, or you can contact us at
The agenda will include the following: Various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 1 Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, August 21, 2007.
Audrey Y. Jenkins at 1-888-912-1227 (toll-free), or 718-488-2085 (non toll-free).
An open meeting of the Area 1 Committee of the Taxpayer Advocacy Panel will be held Tuesday, August 21, 2007 from 9 a.m. to 10 a.m. ET via a telephone conference call. Individual comments will be limited to 5 minutes. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 718-488-2085, or write Audrey Y. Jenkins, TAP Office, 10 MetroTech Center, 625 Fulton Street, Brooklyn, NY 11201. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Audrey Y. Jenkins. Ms. Jenkins can be reached at 1-888-912-1227 or 718-488-2085, or post comments to the Web site:
The agenda will include various IRS issues.
Internal Revenue Service (IRS), Treasury.
Notice.
An open meeting of the Area 2 Committee of the Taxpayer Advocacy Panel will be conducted (via teleconference). The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, August 15, 2007, at 2:30 p.m. ET.
Inez E. De Jesus at 1-888-912-1227, or 954-423-7977.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Area 2 Committee of the Taxpayer Advocacy Panel will be held Wednesday, August 15, 2007 at 2:30 p.m. ET via a telephone conference call. If you would like to have the TAP consider a written statement, please call 1-888-912-1227 or 954-423-7977, or write Inez E. De Jesus, TAP Office, 1000 South Pine Island Rd., Suite 340, Plantation, FL 33324. Due to limited conference lines, notification of intent to participate in the telephone conference call meeting must be made with Ms. De Jesus at 1-888-912-1227 or 954-423-7977, or post comments to the Web site:
The agenda will include the following: Various IRS issues.
In notice document 07-3558 appearing on page 40125 in the issue of Monday, July 23, 2007 make the following correction:
In the first column, the heading “
In proposed rule document 07-2631 beginning on page 29456 in the issue of Tuesday, May 29, 2007, make the following corrections:
1. On page 29466, in the second table, in the heading for the last column, “combines”should read “combined”.
2. On pages 29467 and 29468, in the heading for the last column, “combines” should read “combined”.
Environmental Protection Agency (EPA).
Notice of Availability.
This notice announces applicability determinations, alternative monitoring decisions, and regulatory interpretations that EPA has made under the New Source Performance Standards (NSPS); the National Emission Standards for Hazardous Air Pollutants (NESHAP); and the Stratospheric Ozone Protection Program.
An electronic copy of each complete document posted on the Applicability Determination Index (ADI) database system is available on the Internet through the Office of Enforcement and Compliance Assurance (OECA) Web site at:
EPA currently compiles EPA-issued NSPS and NESHAP applicability determinations, alternative monitoring decisions, and regulatory interpretations, and posts them on the Applicability Determination Index (ADI) on a quarterly basis. In addition, the ADI contains EPA-issued responses to requests pursuant to the stratospheric ozone regulations, contained in 40 CFR part 82. The ADI is an electronic index on the Internet with over one thousand EPA letters and memoranda pertaining to the applicability, monitoring, recordkeeping, and reporting requirements of the NSPS and NESHAP. The letters and memoranda may be searched by date, office of issuance, subpart, citation, control number or by string word searches.
Today's notice comprises a summary of 86 such documents added to the ADI on July 6, 2007. The subject, author, recipient, date and header of each letter and memorandum are listed in this notice, as well as a brief abstract of the letter or memorandum. Complete copies of these documents may be obtained from the ADI through the OECA Web site at:
The following table identifies the database control number for each document posted on the ADI database system on July 6, 2007; the applicable category; the subpart(s) of 40 CFR part 60, 61, or 63 (as applicable) covered by the document; and the title of the document, which provides a brief description of the subject matter. Please note that the table that appeared in the December 4, 2006 notice (71 FR 70383) contained one document whose title was in error. The title for the document assigned control number M060016 was listed in the table as “Once In/Always In Rule.” It should have read “Once In/Always In Policy.”
We have also included an abstract of each document identified with its control number after the table. These abstracts are provided solely to alert the public to possible items of interest and are not intended as substitutes for the full text of the documents. This notice does not change the status of any document with respect to whether it is “of nationwide scope or effect” for purposes of section 307(b)(1) of the Clean Air Act. Neither does it purport to make any document that was previously non-binding into a binding document.
Q: Does EPA approve an alternative monitoring request under 40 CFR part 63, subpart O, to use a gas detection sensor (i.e., CEA Instruments ET-6200R U Series) instead of a gas chromatograph or flame ionization analyzer for the International Sterilization Laboratory (ISL) facility in Groveland, Florida?
A: Yes. EPA finds that a gas detection sensor is an acceptable alternative to a gas chromatograph or flame ionization detector, contingent upon the successful outcome of the required performance specification (PS) 8 testing in 40 CFR part 60, appendix B, for ethylene oxide.
Q: Could the EPA clarify to the American Forest & Paper Association whether the manufacturing of cores for rolled towels and tissue is subject to 40 CFR part 63, subpart JJJJ? In manufacturing the cores, two rolls of core stock are unwound with glue continuously applied, then wound together to form a core, and cut to fit the rewinder length.
A: EPA finds that this core manufacturing activity is subject to 40 CFR part 63, subpart JJJJ when it takes place at a major source of hazardous air pollutants. The affected source under subpart JJJJ is the collection of all web coating lines at a facility, with certain exceptions. The core stock is a web because it is a continuous substrate flexible enough to be wound or unwound as rolls. Glue application occurs within a web coating line because the glue is applied to the core stock web substrate between an unwind or feed station and a rewind or cutting station. Glue is an adhesive coating material within the subpart JJJJ definition.
Q: Could the EPA clarify to the American Forest & Paper Association whether the laminating/ply-bonding of embossed, multi-layered paper products that occurs at a major source of hazardous air pollutant (HAP) emissions is subject to the requirements of 40 CFR part 63, subpart JJJJ? The process consists of a raised or depressed pattern that is embossed on a paper web by passing the web between two steel rolls or plates, one of which is engraved. In the laminating/ply-bonding operation, adhesive is applied by a roller to bind multiple layers of substrate.
A: EPA finds that the adhesive is applied as a continuous coating layer by the laminating/ply-bonding operation. Based on the web coating line definition and the description of the laminating/ply-bonding operation included with the letter, the laminating/ply-bonding operation takes place on a web coating line, and is therefore subject to the requirements of part 63, subpart JJJJ, provided that it takes place at a major source of HAP emissions.
Q: Could the EPA clarify to the American Forest & Paper Association whether facilities may use the results of Method 24, which measures the volatile organic compound (VOC) content of coating materials, instead of the results of Method 311, which measures the organic hazardous air pollutants (HAP) content of the materials, in compliance calculations under 40 CFR part 63, subpart JJJJ?
A: EPA has determined that facilities may substitute Method 24 determinations of VOC content for Method 311 determinations of organic HAP content, provided that the substitution is implemented consistently within an equation and all given set of compliance calculations. Compliance determinations under part 63, subpart JJJJ requires monthly calculation of as-applied organic HAP content using measurements of the organic HAP content of as-purchased material, and of any added material. 40 CFR 63.3360(c)(2) allows substitution of Method 24 determinations of VOC content for Method 311 determinations of organic HAP.
Q: Is a replaced primer booth at the CNH America, LLC facility a new source under part 63, subpart MMMM?
A: No. EPA does not find the replaced primer booth to be a new source under 40 CFR part 63, subpart MMMM. If the replacement had involved construction of a completely new miscellaneous metal parts and products surface coating facility, where previously no miscellaneous metal parts and products surface coating facility had existed, then the replaced primer booth would be a new source under 40 CFR part 63, subpart MMMM. The facility will need to provide documentation to the delegated state agency to demonstrate that the replaced booth does not meet the definition of “reconstruction” in 40 CFR 63.2, and to document that the facility remains in compliance with a potential to emit limitation.
Q1: Could EPA clarify to Vorys, Sater, Seymour and Pease LLP whether the refinishing of metal equipment that is used to manufacture wood furniture and coats metal parts and equipment that are not metal components of wood furniture is subject to 40 CFR part 63, subpart JJ?
A1: EPA finds that the refinishing of metal equipment at the facility falls within the affected source of 40 CFR part 63, subpart MMMM, and would therefore be excluded from 40 CFR part 63, subpart JJ. EPA also finds that this activity falls within facility maintenance activities that are exempt from 40 CFR part 63, subpart MMMM requirements.
Q2: Is the construction and painting of wooden workbenches, shelving, and/or shadow boards, as well as the recoating or refinishing of wooden workbenches subject to 40 CFR part 63, subpart JJ, if the materials are for use within the facility?
A2: Yes. EPA finds that construction and painting activities are subject to 40 CFR part 63, subpart JJ. This rule does not distinguish activities that produce items for sale from activities that produce items for use at the facility. For refinishing and restoration activities, the background information document for subpart JJ clarifies that those activities are not considered part of wood furniture manufacturing and thus are not subject to subpart JJ.
Q3: Is the ink jet printing of letters or numbers on wood substrate subject to 40 CFR part 63, subpart JJ?
A3: Yes. EPA finds that this activity is subject to 40 CFR part 63, subpart JJ because inks are included in the coating
Q: Does EPA approve the monitoring of alternative operating parameters for the lime kiln scrubber, under 40 CFR part 63, subpart MM, at MeadWestvaco's pulp mill in Rumford, Maine?
A: Yes. EPA conditionally approves the request to install, calibrate, maintain, and operate a continuous flow monitoring system and supply pressure monitoring system to measure scrubbing liquid re-circulation flow rates and pressure from the wet scrubber used to control emissions from the lime kiln. This system, in conjunction with four conditions specified in the EPA response letter, can be used in lieu of monitoring and recording the differential pressure across the scrubber, as required by 40 CFR part 63, subpart MM.
Q1: Could EPA clarify to 3M EHS Operations whether shared “process equipment” under the Process Unit Group (PUG) definition in 40 CFR part 63, subpart FFFF, the National Emission Standards for Hazardous Air Pollutants: Miscellaneous Organic Chemical Manufacturing (MON rule), may include the following scenarios at various 3M facilities: (i) Piping manifold systems and pumps used to deliver raw materials or remove waste or product from process units; (ii) portable equipment, such as filtering systems; and/or (iii) ovens used to warm raw materials in drums or totes prior to introduction into the process vessel?
A1: Yes. EPA finds that while those pieces of equipment may be part of a PUG, they cannot be the sole shared equipment in the PUG.
Q2: Could EPA clarify the applicability criteria under the National Emission Standards for Hazardous Air Pollutants: Miscellaneous Coating Manufacturing (MCM rule) at 40 CFR part 63, subpart HHHHH, under the following specific scenarios at 3M facilities: Plant 1 contains Process Vessel (A), which is used to manufacture two types of coatings, i.e., Coating (a) and Coating (b). Process Vessel (A) is not an affected source or part thereof under another MACT standard. The production of Coating (a) does not involve the process, use or production of any hazardous air pollutant (HAP). The production of Coating (b) does involve the process, use or production of a HAP. Both Coating (a) and Coating (b) are sold to commerce. If, in a year, Process Vessel (A) is used more hours to manufacture Coating (a) than Coating (b), is Process Vessel (A) then part of the MCM rule affected source of Plant 1? If, in a year, Process Vessel (A) manufactures more product on a weight basis of Coating (a) than Coating (b), then is Process Vessel (A) part of the MCM rule affected source of Plant 1?
A2: EPA finds that Process Vessel (A) is part of the affected source under the MCM rule at all times that it is manufacturing Coating (b). The MCM rule does not include the concept of “primary product.” Therefore, neither the time in use for the production of a product, nor the mass amount of a product affects the applicability of the standard.
Q3: Could EPA clarify the applicability criteria under the following specific scenarios at 3M facilities: Plant 1 is subject to 40 CFR part 63, subpart HHHHH (MCM rule). Process Vessel (A) at Plant 1 is not part of a PUG under 40 CFR part 63, subpart FFFF (MON rule). It is also not an affected source or part thereof under another 40 CFR part 63 standard. Process Vessel (A) is used to manufacture two products, Product (a) and Product (b), neither of which are coatings as defined by the MCM rule. Process Vessel (A), while manufacturing Product (a), meets all of the criteria of a multiple miscellaneous chemical process unit (MCPU) under the MON rule, and does not meet any of the exemptions in the MON rule. Process Vessel (A), while manufacturing Product (b), either does not meet the criteria for an MCPU under the MON rule, or is subject to one of the exemptions in the MON rule. Is Process Vessel (A) subject to the MON rule during the manufacture of both Product (a) and Product (b)?
A3: EPA finds that Process Vessel (A) is subject to the MON standard only during the manufacture of Product (a). This is the only time it meets the applicability of that rule because the product of the process determines rule applicability.
Q4: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: Plant 1 is a major source of HAP emissions. Process Vessel (A) at Plant 1 is not part of a PUG under the MON rule in 40 CFR part 63, subpart FFFF. Process Vessel (A) is used to manufacture Product (b) from several Raw Materials (a), and mixing, blending, etc., in Process Vessel (A) do not involve any chemical reaction or change in basic chemistry of Product (b) from Raw Materials (a). Product (b) is not a coating as defined by the MCM rule in 40 CFR part 63, subpart HHHHH. Process Vessel (A), while manufacturing Product (b), meets all of the criteria for an MCPU and is subject to none of the exemptions of the MON rule. Is process vessel (A) subject to the MON rule?
A4: EPA finds that process Vessel (A) would be subject to the MON rule because it meets all of the criteria for an MCPU in the rule and does not meet any of the exemptions. Whether there is chemical reaction during the manufacturing process is not a factor for determining the applicability of the MON rule. Although chemical reaction is typically associated with the manufacture of organic chemicals, it is not exclusively so.
Q5: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: Plant 1 has operations subject to both 40 CFR part 63, subpart FFFF (MON rule) and the 40 CFR part 63, subpart HHHHH (MCM rule). Process Vessel (A) at plant 1 is not an affected source or part thereof under another MACT standard. Process Vessel (A) is not part of a PUG developed under the MON rule. Process Vessel (A) is used to manufacture two products, Product (a) and Product (b). Product (a) is a coating as defined in the MCM rule and involves the process, use, or production of HAP. Process Vessel (A), while manufacturing Product (b), meets all of the criteria for an MCPU under the MON rule and meets none of the exemptions in the MON rule. Is Process Vessel (A) subject to either the MON rule, the MCM rule, or both?
A5: EPA finds that process Vessel (A) is subject to the MCM rule when manufacturing Product (a). Process Vessel (A) is subject to the MON rule when manufacturing Product (b). Process Vessel (A) cannot be subject to both standards at the same time because both the MON rule and MCM rule contain language that states that the particular affected facility cannot be part of another 40 CFR part 63 affected facility.
Q6: Could EPA clarify the following scenario(s) regarding applicability criteria at 3M facilities: Plant 1 is subject to the 40 CFR part 63, subpart HHHHH (MCM rule), and is not subject to the National Emission Standards for Hazardous Air Pollutants: Paper and Other Web Coating (POWC rule) at 40 CFR part 63, subpart JJJJ. Plant 2 consists of a Web Coating Line (B) which is part of an affected source under the POWC rule. Process Vessel (A) at Plant 1 is used only to manufacture a coating that is used by the Web Coating Line (B). Plants 1 and 2 are not contiguous and may in fact be located in different states. Does 40 CFR part 63, subpart HHHHH (MCM rule)
A6: Yes, the MCM rule is applicable to Plant 1 for the production of the coating in Process Vessel (A) because Process Vessel (A) is not located at the POWC affected source and therefore cannot be an affiliated operation of a POWC affected source.
Q7: Plant 1 consists of Process Vessel (A), which is an MCPU under the MON rule (40 CFR part 63, subpart FFFF). Process Vessel (A) is not part of a PUG under the MON rule. Plant 2 consists of both Web Coating Line (C), which is part of an affected source under the POWC rule (40 CFR part 63, subpart JJJJ), and Process Vessel (B), which manufactures coatings for Web Coating Line (C). Process Vessel (A) produces miscellaneous organic chemical Product (b), which is sold to commerce, and miscellaneous organic chemical Product (a) which is used as an ingredient by Plant 2 to manufacture the coating in Process Vessel (B). How do the MON rule and the POWC rule apply to Plant 1 and Plant 2?
A7: EPA finds that Process Vessel (A) in Plant 1 is subject to the MON rule when producing either Product (a) or Product (b) because production of Product (b) meets the applicability of the MON rule and production of Product (a) does not meet the exemption for affiliated operations under 40 CFR 63.2435(c)(3) of the MON rule. The production of the coating in Process Vessel (B) would be an affiliated operation under the POWC rule, because the mixing or dissolving of coatings prior to application as an affiliated operation would include the actual production of the coating when performed at an affected source listed in 40 CFR 63.7985(d)(2).
Q8: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: The Web Coating Line (C) is part of an affected source at Plant 1 under 40 CFR part 63, subpart JJJJ (POWC rule). Equipment (A) at Plant 1, which consists of process vessels with associated agitators, pumps, etc., is used to manufacture HAP-containing coatings for the Web Coating Line (C). A subset of Equipment (A), designated as Equipment (B), is also used at other times to manufacture different coatings which are sold to general commerce as Finished Products (a). Are Equipment (A) and/or Equipment (B) subject to 40 CFR part 63, subpart HHHHH (MCM rule)?
A8: EPA finds that all of the equipment in Equipment (A), including Equipment (B), would not be subject to the MCM rule when they are used to manufacture a coating for Web Coating Line (C). During this time, the process carried out in these equipments would be an affiliated operation under the MCM rule at 40 CFR 63.7985(d)(2). Equipment (B), when making Finished Product (a), would be subject to the MCM rule, as it would not qualify as an affiliated operation of a POWC rule affected source because Finished Product (a) is not applied at the POWC rule affected source.
Q9: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: Web Coating Line (B) at Plant 1 is part of an affected source under 40 CFR part 63, subpart JJJJ (POWC rule). Process Vessel (A) at Plant 1 is used to manufacture HAP-containing Coatings (a) for Web Coating Line (B). Some part of the Coatings (a) are sent to Off-site Locations (C) for quality assurance/quality control, pilot coating lines, and/or research and development. Is Process Vessel (A) an affected source under 40 CFR part 63, subpart HHHHH (MCM rule)?
A9: EPA finds that when Process Vessel (A) is making HAP-containing Coatings (a) for Web Coating Line (B), it is not a MCM rule affected source because it is an affiliated operation of the POWC rule affected source. However, when Process Vessel (A) is making HAP-containing Coatings (a) for use off-site, it no longer meets the definition of affiliated operations for the POWC rule affected source. If the Off-site Locations (C) met the exemptions in the rule, then the production of HAP-containing Coatings (a) for these purposes would be exempt from MCM rule.
Q10: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: Web Coating Line (D) is part of an affected source at Plant 1 under 40 CFR part 63, subpart JJJJ (POWC rule). Web Coating Line (E) is part of an affected source at Plant 2 under the POWC rule. Process Vessel (A) at Plant 1 manufactures (with or without an intended chemical reaction) the HAP-Containing Coating (a) for Web Coating Line (D). Process Vessel (B) at Plant 1 manufactures (with or without a chemical reaction) the HAP-Containing Coating (b) for Web Coating Line (D) and for Web Coating Line (E), and manufactures another HAP-Containing Coating (d) which is sold to commerce. Process Vessel (C) in Plant 2 manufactures a HAP-Containing Coating (c) for Web Coating Line (E). Does 40 CFR part 63, subpart HHHHH (MCM rule) apply to Plant 1 and/or Plant 2?
A10: EPA finds that the MCM rule would apply to Process Vessel (B) in Plant 1 when manufacturing HAP-Containing Coating (d) because it would not be an affiliated operation as the HAP-Containing Coating (d) is not used in a 40 CFR part 63, subpart JJJJ (POWC rule) process. The MCM rule would not apply to Process Vessel (A) in Plant 1 when producing HAP-Containing Coating (a) for use in Web Coating Line (D) because it would be exempt under 40 CFR 63.7985(d)(2) as an affiliated operation located at a POWC rule affected source. Process Vessel (C) in Plant 2, which produces HAP-Containing Coating (c) for use with Web Coating Line (E), would be an affiliated operation of 40 CFR part 63, subpart JJJJ (POWC) Web Coating Line (E) and therefore not subject to the MCM rule per the same exemption. When manufacturing HAP-Containing Coating (b) for Web Coating Line (D), Process Vessel (B) also would be exempt from the MCM rule under 40 CFR 63.7985(d)(2). However, because there is no concept of primary use in either the POWC rule or the MCM rule, Process Vessel (B), would be subject to the MCM rule when producing HAP-Containing Coating (b) for Web Coating Line (E) because it would not be an affiliated operation located at the relevant POWC rule affected source.
Q11: Could EPA clarify the applicability criteria of the following scenario(s) at 3M facilities: Plant 1 produces product coatings and chemical intermediates in several steps. In Step 1a, Process Vessel (A) is used to manufacture Intermediate (a). While manufacturing Intermediate (a), Process Vessel (A) meets all of the criteria for an MCPU under the MON rule (40 CFR part 63, subpart FFFF) and meets none of the exemptions in the MON rule. Process Vessel (A) is not a PUG under the MON rule. It is also not part of an affected source under another subpart of 40 CFR part 63. In Step 1b, one-half of the Intermediate (a) is drained away from Process Vessel (A) into drums for temporary storage. In Step 2a and 2b, other raw materials, some of which contain HAP, are added to the remaining one-half of Intermediate (a) in Process Vessel (A) to manufacture a coating (with or without a chemical reaction). In Step 3, the one-half of Intermediate (a) which was drained into drums is removed from storage and pumped back into the now empty Process Vessel (A) or another process vessel, along with other raw materials (some of which contain HAP) to manufacture a coating (with or without chemical reaction). How do 40 CFR part 63, subpart FFFF (MON) and 40 CFR part 63, subpart HHHHH (MCM) apply to Plant 1?
A11: EPA finds that Steps 1a and 1b would be subject to the MON rule
Q: Is the Battisons of Avon, Connecticut, (Battisons) facility a major source or an area source of hazardous air pollutants (HAP) emissions subject to 40 CFR, part 63, subpart M, if it replaces its old dry cleaning systems and installs all new dry-to-dry dry cleaning systems before the compliance date?
A: EPA finds that Battisons is an area source of HAP emissions subject to 40 CFR part 63, subpart M because it has maintained its perchloroethylene consumption below the 2,100 gallons threshold limit since before the compliance date. The applicability provision at 40 CFR 63.320(g) states that, “In lieu of measuring a facility's potential to emit perchloroethylene emissions or determining a facility's potential to emit perchloroethylene emissions, a dry cleaning facility is a major source if: (1) It includes only dry-to-dry machine(s) and has a total yearly perchloroethylene consumption greater than 8,000 liters (2,100 gallons) as determined according to 63.323(d). * * *” However, if Battisons exceeds the yearly perchloroethylene consumption of 2,100 gallons when it starts up the new systems, it will become a major source of HAP emissions, according to 40 CFR 63.320(i), and all its dry cleaning systems will have to comply with the appropriate requirements within 180 calendar days from the date it exceeded that threshold value.
Q: Is the Rhode Island Textile Company, Inc. (RIT) facility, located in Pawtucket, Rhode Island, that manufactures shoelaces and submits the shoelaces to tipping operations subject to 40 CFR part 63, subpart OOOO?
A: No. EPA has determined that because the company is not coating, printing, slashing, finishing or dyeing the product, it is not subject to 40 CFR part 63, subpart OOOO.
Q: Is it acceptable under 40 CFR part 63, subpart V, for the North Shelby Landfill facility to submit startup, shutdown, and malfunction (SSM) reports within 60 days after the end of each semiannual reporting period?
A: Yes. EPA approves the North Shelby Landfill facility request of extending the submittal of SSM reports until 60 days after the end of each semiannual reporting period, which corresponds with the existing deadline for submitting semiannual reports under the Title V permitting program. Under 40 CFR 63.9(i), an owner or operator of a facility subject to this reporting requirement can request an alternative schedule. Under the new deadline, the SSM reports and semiannual Title V reports can be submitted at the same time to simplify the owner/operator reporting requirements.
Q: Could EPA clarify to Briggs & Stratton Corporation whether aluminum sows, ingots, and T-bars that have painted markings considered “clean charge” in the National Emission Standards for Hazardous Air Pollutants for Secondary Aluminum at 40 CFR part 63, subpart RRR?
A: EPA finds that as a result of the typographical errors in the definition of “clean charge,” aluminum T-bars, sows, ingots, billets, and pigs which have painted markings are not defined as “clean charge.” It is the Agency's intent that aluminum T-bar, sow, ingot, billet, and pig be considered “clean charge,” and that the phrase “entirely free of paints, coatings, and lubricants” not apply to these materials. EPA believes these materials, notwithstanding ink, grease or paint markings, should be treated as clean charge. EPA intends to amend 40 CFR part 63, subpart RRR to clarify this point.
Q: What is EPA's guidance to regulators on how an owner or operator of a secondary aluminum production facility can know that the scrap processed at its facility is “entirely free of paints, coatings, and lubricants” under 40 CFR part 63, subpart RRR?
A: EPA believes that an owner or operator of a secondary aluminum production facility may know whether the scrap material being processed at the facility is “entirely free of paints, coatings, and lubricants” in one of two ways. The first way to ensure a “clean charge” would be to maintain direct control of the scrap material being processed by processing scrap generated within the facility or from other facilities within the same company that the owner or operator knows has not been subjected to paints, coatings and lubricants, or where the owner or operator knows that paints, coatings and lubricants have been removed consistent with the definition of “clean charge.” Similarly, the owner or operator also may process scrap from outside entities where they are familiar with the history of the scrap and, therefore, know that the scrap meets the definition of “clean charge.”
Q: Could EPA clarify to the American Home Furnishing Alliance's (AHFA) the applicability criteria under 40 CFR part 63, subpart DDDD, for nine general manufacturing scenarios in the home furnishing industry involving manufacturing components from plywood and engineered lumber?
A: The Agency has determined that most of the furniture components described in the scenarios, except for processes involving cold pressing of solid wood pieces, would meet the definition of “plywood” under 40 CFR part 63, subpart DDDD and, therefore, be subject to applicable requirements in that rule, as described in EPA's response letter. EPA interprets the term “panel product” in the definition of plywood to include flat as well as curved furniture panels. It should be noted that most of the manufacturing equipment used by the industry, such as hot presses, would not be subject to emission limits but only to notification requirements under 40 CFR part 63, subpart DDDD.
Q: What is EPA's guidance to regulators on the implementation and compliance monitoring of the capture, collection, and ventilation requirements in the Secondary Aluminum NESHAP under 40 CFR part 63, subpart RRR?
A: EPA finds that the Secondary Aluminum NESHAP incorporates by reference chapters 3 and 5 of Industrial Ventilation: A Manual of Recommended Practice, 23rd edition, published by the American Conference of Governmental Industrial Hygienists (ACGIH). As required by 40 CFR 63.1506(c) of NESHAP subpart RRR, owners or operators of affected sources or emissions units with add-on air pollution control devices must design and install a system for the capture and collection of emissions to meet the engineering standards for minimum exhaust rates as published in the ACGIH manual. In addition, 40 CFR 63.1515(b)(5) requires facilities to provide design information and analysis, with supporting documentation, demonstrating conformance with these capture/collection system requirements. The
Q1: Could EPA clarify to Kean Miller whether an HCl unit at a facility that stops producing 30 weight percent acid for commercial sale after the compliance date is subject to 40 CFR part 63, subpart NNNNN?
A1: 40 CFR part 63, subpart NNNNN does not only apply to the production for commercial sale of 30 weight percent or greater HCl acid. Consequently, the production of HCl acid with a concentration of 30 weight percent or greater for internal use, as well as for commercial sale, may be subject to 40 CFR part 63, subpart NNNNN.
Q2: If a facility infrequently produces HCl at a 30 weight percent strength, and its monthly or weekly average is below 30 weight percent, is the facility subject to 40 CFR part 63, subpart NNNNN?
A2: No. EPA finds that a facility would not be subject to 40 CFR part 63, subpart NNNN if its production of HCl acid with a concentration of 30 weight percent or greater is infrequent, irregular, or not consistent with the facility's normal operations. In determining whether the production of 30 weight percent HCl acid is occasional or part of a facility's normal operations, EPA will make a case-by-case determination based on the frequency and regularity of HCl acid production of 30 weight percent or greater.
Q3: Does 40 CFR part 63, subpart NNNNN apply to a facility that produces liquid HCl at concentrations exceeding 30 weight percent only on an occasional basis, when requested by a customer?
A3: If a facility infrequently produces HCl with a concentration of 30 weight percent or greater and this production is not a routine part of normal operations, the facility would not be subject to 40 CFR part 63, subpart NNNNN.
Q1: Could EPA clarify to Lasco Bathware Incorporated what measures are being taken by the Agency to ensure that any composite operation utilizing the “non-atomized mechanical application” emission factors for gelcoats or filled resins, is in compliance with the requirements specified in the National Emissions Standards for Hazardous Air Pollutants: Reinforced Plastic Composites Production under 40 CFR part 63, subpart WWWW?
A1: Since affected sources must comply with monitoring, recordkeeping, and reporting requirements under the Reinforced Composites Production rule (40 CFR part 63, subpart WWWW) to ensure continuous compliance, the regulatory agency is able to know when a source first becomes subject to the rule and whether it is complying with the rule. A regulatory agency could also elect, as part of its compliance and enforcement program, to inspect a source to evaluate its compliance with the 40 CFR part 63, subpart WWWW requirements and take any actions, as appropriate.
Q2: What tests are required to ensure that organic hazardous air pollutant (HAP) emissions are no greater than the organic HAP emissions predicted by the applicable non-atomized application equation(s) in Table 1 of 40 CFR part 63, subpart WWWW?
A2: No tests are required. 40 CFR part 63, subpart WWWW allows sources to use the equations in Table 1 to calculate HAP emission factors that are then used to estimate sources' emissions instead of conducting actual testing. Table 1 emission factors were used to calculate the emission limits for the MACT floor for this rule. Accordingly, the rule allows a source to use Table 1 emission factors to calculate its emissions and demonstrate compliance with the emission standard.
Q3: Could EPA clarify how it will address the known discrepancy between the emissions estimated using the published Table 1 and/or emission factors for unfilled resin, under 40 CFR part 63, subpart WWWW, and the actual emissions from tub/shower facilities, which can be verified by means of EPA emissions testing methods 18 and 25A?
A3: EPA does not yet have the industry data to do an evaluation of the current emission factors for 40 CFR part 63, subpart WWWW. After the data is received and evaluated, a determination will be made as to whether changes should be made to the rule.
Q: Is the Aerovox Division Parallax Power Components facility subject to reporting requirements under 40 CFR part 63, subpart T, if all machines at the facility subject to the rule have been removed or converted to non-regulated solvents?
A: No. EPA finds that the facility is no longer subject to 40 CFR part 63, subpart T and therefore is no longer required to submit reports under the subpart, unless the facility once again uses solvents regulated under this rule.
Q: Should benzene emissions that occur from heat exchanger leaks at the BAKER BOTTS L.L.P., Texas facility be included in the calculation of the Total Annual Benzene (TAB) quantity from facility waste water under the NESHAP for Benzene Waste Operations, 40 CFR part 61, subpart FF?
A: Yes. EPA finds that neither benzene emissions occurring from non-contact heat exchanger leaks into cooling tower water nor benzene quantities from “contact heat exchangers “qualify for the exemption or exclusion from the required TAB calculation under the NESHAP for Benzene Waste Operations, 40 CFR part 61, subpart FF. The benzene emissions are directly generated by these processes and are not the result of either leakage or process offgas. Therefore, waste in the form of gases or vapors that is emitted during these processes from the process fluids is required to be part of the calculation of the total annual benzene quantity in facility waste generation.
Q: Could EPA clarify to the Florida Department of Environmental Protection whether the Agrico's Big Bend Terminal in Hillsborough County, Florida, is subject to 40 CFR part 60, subpart X, if it contends that it is a distribution and not a storage of granular triple superphosphate (GTSP) manufacturing facility?
A: Yes. EPA finds that the Big Bend Terminal facility is subject to NSPS subpart X since it was constructed, reconstructed, or modified after October 25, 1974. In addition, the definition of GTSP storage facility in 40 CFR 60.241 does not restrict applicability to storage facilities at manufacturing sites.
Q: Are coal truck dump operations at the ARCO Coal Company, Colorado facility “affected facilities” subject to 40 CFR part 60, subpart Y?
A: Coal truck dump operations are not affected facilities for purposes of NSPS subpart Y. However, EPA finds that these operations are part of the coal preparation plant if they are located at the site of the plant, as defined in 40 CFR 60.251(a) of NSPS subpart Y. Therefore, quantifiable fugitive particulate emissions from coal dump operations must be included in a total source emissions inventory to determine whether the stationary source is to be considered a major source of hazardous air pollutant emissions.
Q: Are conveyors 1 and 2 at the Arizona Electric Power Cooperative (AEPCO) part of the affected facility
A: Yes. EPA finds that AEPCO conveyor numbers 1 and 2 are part of the affected facility subject to NSPS subpart Y because these are used to convey coal or coal refuse from the machinery and the exemption in 40 CFR 60.14(c) would therefore, not apply. 40 CFR 60.14(c) exempts existing facilities from becoming affected facilities by the addition of a new affected facility. However, this case involves changes to an existing affected facility.
Q: Could EPA clarify the applicability of 40 CFR part 60, subparts NNN, RRR, and VV to the production of ethyl alcohol through biological fermentation processes?
A: These regulations and their background documents state that these subparts apply only to specific processes involving synthesis of organic chemicals using petroleum-based feedstocks (in this case ethylene to ethanol) and not biological fermentation processes where emissions characteristics and industry economics differ. EPA clarified that these regulations do not apply to chemicals extracted from natural sources or totally produced by biological process in the following
Q: Could EPA clarify the applicability of 40 CFR part 60, subparts NNN, RRR, and III to biomass ethanol production?
A: EPA finds that NSPS subparts NNN, RRR, and III do not contain a blanket exemption for biomass ethanol production facilities from applicability of these subparts. Inherent difficulties in determining emissions characteristics and processes make it necessary to provide exemptions on a case-by-case basis, beyond those provided for explicitly in the rule. This case-by case applicability exemption determination is consistent with the approaches used in implementing other rules, such as the Hazardous Organic NESHAP (HON) rule, and this memorandum further clarifies an earlier EPA response dated October 7, 1996, regarding the applicability of these standards to biomass ethanol production.
Q: Could EPA clarify the 30-day reporting requirement for sources which were constructed or reconstructed between proposal and promulgation, under 40 CFR part 60, subpart III?
A: Although 40 CFR part 60, subpart III does not specifically address the issue of notification deadlines for sources for which the 30-day deadline has already or nearly passed, EPA believes that it is only reasonable under NSPS subpart III to allow owners and operators the full 30 days after promulgation to provide the necessary notifications.
Q: Could EPA clarify whether heaters F-501 and F-510 at the Chevron USA refinery in Perth Amboy, New Jersey, are subject to 40 CFR part 60, subpart J either because their construction commenced after June 11, 1973, or because the heaters were modified in 1982?
A: EPA finds that heaters F-501 and F-510 are subject to NSPS subpart J because they commenced construction after the applicability date of June 11, 1973. The terms “commenced” and “construction” are defined in 40 CFR 60.2. The terms were also discussed in EPA's earlier response to Chevron on May 2, 1976 (see ADI Control Number CO08). Based on these definitions, EPA finds that the construction of heaters F-501 and F-510 commenced on January 31, 1974, the date the contract for the construction of heaters F-501 and F-510 was signed and became legally binding. Because the construction of these heaters commenced after the applicability date of June 11, 1973, these heaters are subject to NSPS subpart J.
Q: Is a fuel oil storage tank (Tank 19) at the Chevron Products Company, New Jersey facility subject to 40 CFR part 60, subpart Kb, if the tank is converted to an internal floating roof tank with a mechanical shoe seal for storing crude oil?
A: Yes. EPA finds that the storage tank is subject to NSPS subpart Kb because the conversions constitute “reconstruction” as defined in 40 CFR 60.14 and 40 CFR 60.15. The fixed capital costs of the new components exceed 50 percent of the initial fixed capital cost, which subjects the storage tank to NSPS subpart Kb requirements. The cost of the new foundation for the storage tank, or other costs not directly related in containerization cannot be included in calculating the fixed capital cost of the new components.
Q1: Does EPA approve a custom fuel monitoring schedule for sulfur for a gas turbine, under 40 CFR part 60, subpart GG, at Conoco's Acadia Gas Processing Plant?
A1: Yes. Given that the sulfur levels continue to be low and consistent as demonstrated, EPA approves a custom schedule for sulfur, with a one week composite for each of the first six months and a one week composite for each of the following quarters. Conoco must re-evaluate the fuel composition if there is a change in the feedstock.
Q2: Does EPA approve a custom fuel monitoring schedule for nitrogen for a gas turbine, under 40 CFR part 60, subpart GG, at Conoco's Acadia Gas Processing Plant?
A2: No. EPA does not approve a custom schedule for nitrogen for a gas turbine at this facility. If Conoco would like to reapply for a custom schedule, it should provide sufficient data to demonstrate the consistency of the fuel quality on a daily basis, rather than on an average basis.
Q1: Does EPA approve an alternative monitoring schedule for analyzing fuel sulfur content, under 40 CFR part 60, subpart GG, which would allow the use of weekly instead of daily composites to determine sulfur content, for the combined cycle gas turbines at Dow Chemical USA (Dow)? In addition, Dow would like these weekly composites to be conducted on a quarterly basis and believes that this alternative schedule is consistent with 40 CFR 60.334(b)(2).
A1: Yes. EPA approves the use of a weekly composite for analyzing fuel sulfur content. However, EPA does not approve the proposed quarterly sampling at this time. Weekly composites should be analyzed and checked for accuracy and consistency for six months. If after the first six months the sulfur levels remain consistent with the data provided in this review, quarterly monitoring may be requested.
Q2: Does EPA approve the microcoulometric titration technique for determining the sulfur content of fuel under 40 CFR part 60, subpart GG?
A2: No. EPA does not approve Dow's microcoulometric titration technique for determining sulfur content. The method is not a previously approved equivalent method under NSPS subpart GG, and
Q1: Could EPA clarify the applicability of 40 CFR part 60, subpart KK for the Excide Corporation (Excide) lead acid battery manufacturing plant in Greer, South Carolina?
A1: Excide's four facilities located at this plant are subject to NSPS subpart KK if they were constructed or modified after January 14, 1980, and are part of any plant that produces or has the design capacity to produce in one day (24 hours) batteries containing an amount equal to or greater than 6.5 tons of lead. Excide produces batteries containing an amount of lead greater than 6.5 tons. Also, since January 14, 1980, Excide has installed additional equipment on all four facilities, which constituted modifications to these facilities. Therefore, the plant is subject to NSPS subpart KK. Removal of all equipment added after January 14, 1980, would not by itself terminate the applicability of NSPS subpart KK to the Exide facilities. To terminate the applicability of NSPS subpart KK, Exide would have to either dismantle the affected facilities or permanently decrease (physically restrict) the plant's capacity so that the plant no longer had the capacity to produce in 1 day (24 hours) batteries containing more than 6.5 tons of lead (down from the present amount of lead).
Q2: Would Excide have a period of time to remove the additional equipment which constituted the modification in order to avoid being subject to 40 CFR part 60, subpart KK regulations?
A2: No. The applicability determination is made based on whether and when modification occurred. Subsequent restoration of the facilities to the previous physical and operational configuration would not change the finding that the facilities were modified and therefore would not relieve the company from having to comply with NSPS subpart KK.
Q3: Could EPA distinguish between a boiler derate and removing additional equipment in relation to the applicability of 40 CFR part 60, subpart KK to this facility?
A3: A boiler derate involves a permanent restriction of the boiler production capacity and could alter the entire regulated entity in such a way that it no longer meets the definition of “affected facility.” In contrast, once an existing facility has been modified by installing additional equipment, it is considered an affected facility under NSPS subpart KK in the same way as a newly-constructed affected facility would be. The subsequent removal of the added equipment leaves behind a plant that still contains affected facilities since its production rate remains well above the NSPS subpart KK applicability threshold. The entire affected facility is subject to the standards of performance, not just the portion of the affected facility which is responsible for the increase in emissions.
Q: Does EPA waive the monitoring requirements, under 40 CFR part 60, subpart J, for the Hunt Refining Company?
A: No. EPA does not have the authority to waive NSPS subpart J monitoring requirements. However, the facility emits the regulated pollutants in low quantities and may qualify for a monitoring frequency reduction. The facility remains subject to continuous monitoring requirements until an alternative is approved.
Q: Are two boilers, which burn only Jet A fuel, subject to 40 CFR part 60, subpart Db?
A: No. The boilers are designed to burn natural gas, and are therefore subject to NSPS subpart Db. However, these boilers are not subject to any emission standards or monitoring requirements when solely burning Jet A fuel. EPA has determined that Jet A fuel is classified as “other fuel” as referenced in NSPS subpart Db, rather than as residual or distillate oil. Jet A fuel is covered in ASTM D1655-95, which also covers diesel and gas turbine fuels.
Q: Could EPA clarify the particulate matter and opacity limits applicable to the kiln, clinker cooler, and raw mill operations, under 40 CFR part 60, subpart F, at the Roanoke Cement Company in Cloverdale, Virginia?
A: All of the gas exiting the clinker cooler goes to the kiln as process gas and is therefore not subject to the opacity or particulate matter limits for clinker cooler gas in NSPS subpart F. Instead, this process gas, as well as all of the other gas exiting the kiln (that is not diverted to raw mill operations as a process gas) is subject to the kiln gas standards. The raw mill uses some kiln gas as process gas. This process gas and all other gas exiting the raw mill operations is subject to the 10 percent opacity limit applicable to raw mill gas (no particulate matter limit applies).
Q1: Could EPA clarify to Woodward-Clyde Consultants whether a change in volatile organic liquid (VOL) or an increase in throughput makes an existing storage vessel subject to 40 CFR part 60, subpart Kb?
A1: Based on 40 CFR 60.14(e), switching to a higher vapor pressure VOL will not by itself be considered a modification if the existing storage vessel was designed to accommodate the higher vapor pressure VOL prior to July 23, 1984. Similarly, under 40 CFR 60.14(e), an increase in throughput will not be considered a modification if the original design of the storage vessel could accommodate the increased throughput.
Q2: Could EPA clarify the applicability of 40 CFR part 60, subpart Kb to a storage vessel that is covered by a state permit, which does not specify what VOL can be stored, and where the VOL is changed to a level that is within the emission limits established by the state permit?
A2: If an existing source undergoes reconstruction or modification after July 23, 1984, then the storage vessel will become subject to NSPS subpart Kb because state permits do not provide shielding from the NSPS. Therefore, 40 CFR part 60, subpart Kb requirements applies to the storage vessel even when the state permit fails to include such requirements.
Q3: Is acetone considered a VOL with respect to 40 CFR part 60, subparts A and Kb?
A3: No. EPA finds that acetone is not a VOL under NSPS subparts A and Kb.
Q4: Are blending tanks with a capacity of at least 40 cubic meters subject to 40 CFR part 60, subpart Kb?
A4: Yes. EPA finds that the blending tank is considered a storage tank subject to NSPS subpart Kb because 40 CFR 60.110(b) does not differentiate between storage vessels based on usage.
Q5: Is the presence or absence of a mechanical agitator in the blending tank relevant to the applicability of 40 CFR part 60, subpart Kb?
A5: EPA finds that the presence of a mechanical agitator is only relevant when one considers the question of “modification.” For example, if a product change requires blending, the installation of a mechanical agitator in the tank constitutes “physical change.” Providing that there are emission increases associated with the product storage change, the tank will become subject to 40 CFR part 60, subpart Kb because the tank is not considered capable of accommodating the alternative product without the installation of an agitator.
Q6: Will 40 CFR part 60, subpart Kb apply if the storage tank has a usable capacity greater than or equal to 151 m3 without an internal floating roof, but the usable capacity drops below 151 m3 after the installation of an internal floating roof? Which capacity should be considered the design capacity for applicability purposes?
A6: EPA finds that the capacity of the tank prior to the installation of the internal floating roof is the design capacity for purposes of determining applicability of 40 CFR part 60, subpart Kb. The designed capacity is the nominal figure or nominal rating given to the storage vessel by the tank manufacturer. 40 CFR 60.110(a-c) identify “design capacity,” not “usable” capacity of the storage vessel to be the key parameter for considering applicability. In addition, the volume occupied by the internal floating roof cannot be subtracted to bring the tank below the threshold of NSPS subpart Kb.
Q: Are three proposed 316.9 million Btu/hr resource recovery boilers, located at the Portsmouth Naval Shipyard, Norfolk, Virginia facility, which will burn a combination of coal and refuse derived fuel (RDF), subject to 40 CFR part 60, subparts D and/or Da? The steam and electricity generated by these boilers will be used exclusively to furnish the Portsmouth Naval Shipyard.
A: The boilers will not be subject to NSPS subpart Da because the boilers will not provide electricity for sale. The boilers will, however, be subject to NSPS subpart D because the boilers would have the capability to fire in excess of 250 million Btu/hr of fossil fuel. The boilers will be required to meet all emission limits for the portion of the heat input which is attributable to the fossil fuel.
Q: Is the sulfur recovery plant (SRP) at the Navajo Refining Company's (Navajo's) Artesia, New Mexico, refinery subject to 40 CFR part 60, subpart J?
A: Yes. The 20 long tons per day (LTD) exception criterion in 40 CFR 60.100(a) for the production or processing capacity for the Navajo SRP does not apply. The SRU allows for the processing of more than 20 long tons per day (LTD) of sulfur based on the design basis of the unit. Although applicability of NSPS subpart J should be determined before construction begins, Navajo has not provided information sufficient to establish that the design capacity of the SRP to process input sulfur was 20 LTD or less. In addition, the sulfur production from this unit routinely exceeds 20 LTD, and Navajo has failed to demonstrate the design capacity was 20 LTD or less.
Q: In lieu of the standard daily fuel nitrogen and sulfur monitoring under 40 CFR part 60, subpart GG, may the Algonquin Power co-generation facility in Windsor Locks, Connecticut (Algonquin Power) facility use the procedures in 40 CFR part 75, Appendix D, 2.3.1.4 and 2.3.2.4, to show that the gas used in a turbine meets sulfur-content specifications for pipeline-quality natural gas?
A: Yes. Pursuant to 40 CFR 60.334(b)(2), EPA approves that Algonquin Power use the procedures in 40 CFR part 75, Appendix D, 2.3.1.4 and 2.3.2.4, to show that the gas meets sulfur-content specifications for pipeline-quality natural gas. Under this approach, the daily fuel nitrogen and sulfur monitoring requirements of NSPS subpart GG would not apply as long as the part 75 monitoring demonstrated that the fuel met pipeline-quality specifications.
Q: Does EPA approve changing the frequency of Relative Accuracy Test Audits (RATAs) and Cylinder Gas Audits (CGAs) under 40 CFR part 60, Appendix F, at the ANP Bellingham Energy Company facilities in Bellingham and Blackstone, Massachusetts, so that the frequency is consistent with similar requirements under 40 CFR part 75?
A: Yes. Pursuant to 40 CFR 60.13(i)(2), EPA approves changing the annual RATA due date to once every four operating quarters instead of once every four calendar quarters, and approves a NO
Q1: Does EPA approve a waiver from the nitrogen-monitoring requirement in 40 CFR 60.334(b) of NSPS subpart GG, for a natural gas fuel combustion turbine at the Bridgewater Correctional Complex in Bridgewater, Massachusetts?
A1: Yes. EPA approves waiving the requirement under 40 CFR 60.334(b) of NSPS subpart GG to monitor the nitrogen content of pipeline quality natural gas given that the natural gas does not contain fuel-bound nitrogen, and any free nitrogen in the gas would not contribute appreciably to the formation of nitrogen oxide emissions.
Q2: Does EPA approve a custom monitoring schedule to monitor the sulfur content at each renewal of the Title V Operating Permit, under 40 CFR part 60, subpart GG, for a natural gas fueled combustion turbine at the Bridgewater Correctional Complex in Bridgewater, Massachusetts (Bridgewater)?
A2: No. EPA does not approve this custom monitoring schedule. Bridgewater may use the two custom monitoring schedules set forth in 40 CFR 60.334(i)(3)(i)(A) through (D), without prior approval. Otherwise, Bridgewater must continue to follow 40 CFR 60.334(i)(2) for the monitoring frequency of the fuel's sulfur content.
Q: Does EPA approve a parametric monitoring plan that includes monitoring the fuel input rate, the electric load, and the combustor temperature during the initial stack performance test, under 40 CFR part 60, subpart GG, at the Bridgewater Correctional Complex in Bridgewater, Massachusetts?
A: Yes. EPA approves the parametric monitoring plan with certain modifications and additional conditions, as specified in the EPA response letter. This parametric approach will be correlated with emissions to ensure proper operation of the control system and to ensure the facility stays within permitted limits.
Q: Does EPA approve a revision to the November 22, 2002 alternative opacity monitoring procedure for boiler Number 15, under 40 CFR part 60, subpart Db, at the Fraser Papers facility in Berlin, New Hampshire (Fraser)? The November 22, 2002 approval allowed Fraser to continuously monitor and record the voltage across the electrostatic precipitator (ESP) and to continuously monitor and record the scrubber liquid flow rate to the spray tower (wet scrubber) in lieu of installing, calibrating, maintaining and operating a continuous opacity monitoring system (COMS).
A: Yes. EPA conditionally approves the revision to the 2002 alternative opacity monitoring procedure to meet NSPS subpart Db. Fraser will use
Q: Does EPA approve the use of the extended testing timelines outlined in 40 CFR part 75 instead of the timelines outlined in 40 CFR part 60, subpart Db (by referenced 40 CFR part 60, appendix F) for conducting a Relative Accuracy Test Audit (RATA) for a continuous emission monitoring system at the General Electric facility in Lynn, Massachusetts?
A: Yes. EPA approves the use of the part 75 timeline instead of NSPS subpart Db timeline. This alternative will ensure that the facility does not need to start up the boiler for the sole purpose of conducting the RATA test within the annual (four calendar quarter) deadline established in 40 CFR part 60, Appendix F, Section 5, given that the boiler is used only between 10 to 50 percent of the year.
Q: Does EPA approve an alternative schedule to monitor fuels combusted on a monthly basis, under 40 CFR part 60, subpart Dc, for the Goodrich Fuel and Utility System facility in Vergennes, Vermont (Goodrich)?
A: Yes. EPA approves this alternative monitoring schedule request under 40 CFR part 60, subpart Dc, provided that Goodrich meets specific recordkeeping requirements. This alternative fuel consumption monitoring option is not an exemption from compliance with any of the fuel certification requirements in NSPS subpart Dc.
Q: Does EPA approve an alternative monitoring schedule, under 40 CFR part 60, subpart Dc, for gas-fired boilers at the MassMutual Center facility in Springfield, Massachusetts? Under the proposed alternative, fuel records would be maintained on a monthly instead of daily basis.
A: Yes. EPA approves this alternative monitoring schedule as long as the boilers continue to burn exclusively natural gas. If the boilers burn any fuel other than natural gas, all provisions of NSPS subpart Dc will apply as written, including daily tracking of all fuel use from that day forward.
Q: Does EPA approve changing the frequency of Relative Accuracy Test Audits (RATAs) and Cylinder Gas Audits (CGAs) under 40 CFR part 60, Appendix F, for auditing continuous emission monitors (CEMs) at the Stony Brook Energy Center facility in Ludlow, Massachusetts, so that the frequency is consistent with similar requirements under 40 CFR part 75? The Massachusetts Municipal Wholesale Electric Company (MMWEC) operates three combustion turbines at this facility, units 1A, 1B and 1C with CEMs for nitrogen oxides, carbon monoxide and carbon dioxide as required by 40 CFR part 60, NSPS subpart Db, and 40 CFR part 75.
A: Yes. EPA approves changing the annual RATA due date to once every four operating quarters, and approves omitting a CGA for the required monitoring systems except during an operating quarter. An operating quarter is defined as one in which the unit operates 168 hours or more. Regardless of operation, the facility must conduct a CGA for each monitoring system at least once every four calendar quarters and must conduct a RATA at least once every eight calendar quarters.
Q: Does EPA approve VRI's request to demonstrate that its enclosure meets the permanent total enclosure (PTE) definition in 40 CFR part 51, Appendix M, Method 204, as an alternative to the monitoring requirements in 40 CFR part 60, subpart VVV, for a capture system serving one or more coating lines at the Von Roll Isola USA facility (VRI) in New Haven, Connecticut? The capture system is unlikely to comply with the requirement to stay within five percent of the monitor readings during the performance test established in 40 CFR part 60, subpart VVV due to various factors.
A: Yes. EPA conditionally approves VRI's alternative monitoring request to demonstrate that its enclosure meets the PTE definition in Method 204, provided that VRI adheres to conditions specified in EPA's response letter involving monitoring, recordkeeping, and reporting.
Q1: Does EPA approve the use of certain monitoring, recordkeeping, and reporting provisions under 40 CFR part 60, subpart RRR, as alternative monitoring requirements to those under 40 CFR part 60, subpart NNN, for the Flint Hills Resources West Refinery in Corpus Christi, Texas?
A1: Yes. EPA approves the use of the provisions in NSPS subpart RRR as an alternative means of demonstrating compliance under NSPS subpart NNN for the specified distillation unit. As conditions of approval, the facility must comply with the recordkeeping and reporting requirements for flow indicators in NSPS subpart RRR, and must maintain a schematic diagram for all related affected vent streams, collection system(s), fuel systems, control devices, and bypass systems as stated in 40 CFR 60.705(s).
Q2: Will EPA approve a waiver of initial performance tests for certain boilers and heaters at the same facility?
A2: Yes. Pursuant to 40 CFR 60.8(b)(4), EPA conditionally approves the performance test waiver for the boilers and process heaters which are fired with fuel gas containing a vent stream from the Number 2 Isomerization Units and the Number 2 Parex Units. This waiver is applicable for boilers and process heaters which meet the definitions of a boiler or process heater in 40 CFR 60.701 under NSPS subpart RRR. Both the alternative monitoring and the waiver of performance testing are contingent upon the vent streams being vented to a fuel gas system and introduced into the flame zone with the primary fuel.
Q: For three natural gas-fired boilers at the Edgefield Correctional Complex (ECC) in Edgefield, South Carolina, subject to 40 CFR part 60, subpart Dc, will EPA allow the facility to maintain records of the total amount of gas used in the powerhouse instead of keeping records on the amount of fuel burned in each of the boilers separately?
A: No. EPA cannot waive the requirement under NSPS subpart Dc to keep separate fuel usage records for each boiler. However, the South Carolina Department of Health and Environmental Control can approve an alternative approach under which the total gas usage in the powerhouse would be measured and apportioned between the three boilers in question, as established in a March 7, 2002, EPA Region 4 guidance letter.
Q: Does EPA approve conducting visible emission (VEs) observations on a daily basis as an alternative to installing a continuous opacity monitoring (COM) system, under 40 CFR part 60, subparts AA and AAa, if it uses negative pressure baghouses, each with a single stack, to control emissions from the two electric arc furnaces (EAFs) and an argon-oxygen decarburization (AOD) vessel at the Alloys Resources plant in Albertville, Alabama?
A: Yes. EPA finds that the company's alternative monitoring proposal for the
Q: May the Orange County Solid Waste Management facility change its standard operating procedures for landfill gas extraction wells, under 40 CFR part 60, subpart WWW, and shut down, as an alternative to decommissioning, the wells where gas flows are so low that applying even minimal vacuum results in air infiltration that causes exceedances of the applicable oxygen concentration limit?
A: Yes. EPA approves the alternative operating procedure provided that that the facility diagrams are updated to indicate which wells have been shutdown because landfill gas production rates are too low to permit continuous extraction. EPA finds that shutting down nonproductive wells, rather than decommissioning them, has the potential to lower overall non-methane organic compounds emissions by making it easier to resume gas collection in nonproductive areas of the landfill that subsequently experience an improvement in gas quality.
Q: Does EPA find that leachate risers connected to the landfill gas collection system at the Pecan Grove Sanitary Landfill (PGSL) in Harrison County, Mississippi are subject to the operational and monitoring requirements for gas collection wells under 40 CFR part 60, subpart WWW?
A: Yes. EPA finds for purposes of NSPS subpart WWW that the risers, which function as interior wells, must be connected to the gas collection and control system if PGSL is extracting gas from active areas where waste has been in place for five years or more, or from closed areas or areas at final grade where waste has been in place for two years or more.
Q: Does EPA waive a performance test, under 40 CFR part 60, subpart OOO, for particulate emission testing at the outlet of a baghouse that controls emissions from conveying equipment and two storage silos at the Henry Brick Company (HBC) plant in Selma, Alabama?
A: Yes. EPA approves a waiver for the performance test requirement under NSPS subpart OOO because the silos and sand conveying equipment at the plant operate for only short periods of time on an intermittent basis. Alternatively, the HBC facility will demonstrate compliance by conducting visible emission observations during one complete loading cycle to demonstrate compliance.
Q: Does EPA waive the stack testing requirements, under 40 CFR part 60, subpart TT, for a new coil coating line at the Termalex plant in Montgomery, Alabama?
A: EPA finds that the requested test waiver is unnecessary. Volatile organic compound (VOC) emissions from the line in question are controlled with a carbon adsorption system, and under NSPS subpart TT, compliance for facilities using this control approach is determined by comparing the amount of solvent recovered to the amount consumed. This allows compliance to be assessed without a stack test; thus, the requested testing waiver is unnecessary.
Q: Does the gas processing conducted at the Central Sanitary Landfill in Pompano Beach, Florida constitutes treatment under 40 CFR part 60, subpart Cc?
A: Yes. EPA finds that the landfill gas processing operation includes the three activities (filtrating to 10 microns or less, compression, and de-watering) that EPA has previously identified as necessary steps in landfill gas processing to constitute treatment under NSPS subpart WWW. The same definition would apply under NSPS subpart Cc.
Q1: Does EPA accept the nitrogen monitoring waiver and the sulfur custom fuel monitoring plan proposed by Reliant Energy Choctaw County LLC (Reliant Energy), under 40 CFR part 60, subpart GG, for three natural gas-fired combined cycle electric utility generating units located in Choctaw County, Mississippi?
A1: Yes. EPA finds that these proposals are acceptable because they are consistent with previous EPA guidance regarding fuel quality monitoring options under NSPS subpart GG.
Q2: Do the procedures from 40 CFR part 75, Appendix D satisfy the fuel sulfur content monitoring provisions under NSPS subpart GG for determining the sulfur content of natural gas burned in these same units?
A2: Yes. EPA finds that, provided the units are fired with pipeline quality gas, the procedures from 40 CFR part 75, Appendix D may satisfy the fuel sulfur content monitoring provisions under NSPS, subpart GG for determining the sulfur content of natural gas burned in these units.
Q3: Does EPA waive the requirement, under 40 CFR part 60, subpart GG, to correct NO
A3: EPA finds that the requirement can be waived for the initial testing if the units are in compliance with the NO
Q4: For these same three units, may Reliant Energy, under 40 CFR part 60, subpart GG conduct a single load test instead of a four-load test, use reference method results from NO
A4: EPA finds that the Mississippi Office of Pollution Control can approve the proposals to conduct a single load test instead of a four-load test and to use reference method results from NO
Q5: May data from CEMS installed on the exhaust stack of each of these Reliant Energy units be used for reporting gas turbine excess emissions under 40 CFR part 60, subpart GG?
A5: Yes. EPA finds that although Reliant Energy proposed reporting excess emissions under NSPS subpart
Q6: Does EPA waive the requirement to test and monitor NO
A6: EPA finds that the requested waiver is unnecessary because NSPS subpart Da includes an option that allows owners and operators of combined cycle systems to determine/monitor duct burner NO
Q7: Does demonstrating compliance with the particulate emission limit in the PSD permit for these units constitute an adequate demonstration of compliance for the duct burner's particulate limit under 40 CFR part 60, subpart Da?
A7: Yes. EPA finds that particulate testing conducted after the duct burners while the combined cycle units are operating at no less than 95 percent of capacity is acceptable. Since the applicable PSD limit for particulate emissions from the Reliant Energy's combined cycle systems is one-third of the corresponding subpart Da for the Reliant Energy's duct burners, demonstrating compliance with the PSD limit would provide adequate assurance of compliance with NSPS subpart Da and would justify a waiver of the requirement to conduct particulate testing at both the inlet and outlet of the duct burners.
Q8: Does EPA waive the requirement to conduct testing for determining compliance with the sulfur dioxide limit under 40 CFR part 60, subpart Da at these units? May Reliant Energy use the sulfur dioxide reporting and recordkeeping provisions from 40 CFR part 75, Appendix D in lieu of those in subpart Da?
A8: EPA finds that if Reliant Energy verifies that the fuel used in the duct burners is pipeline quality natural gas, then no testing will be required because the emissions from pipeline natural gas will be orders of magnitude below the NSPS subpart Da limit. For reporting, the same results can be used to quantify emissions under both part 75 and NSPS subpart Da. Because reporting sulfur dioxide excess emissions under NSPS subpart Da will provide EPA with useful information and is not overly burdensome, the request to waive the NSPS subpart Da reporting requirements is not approved.
Q9: Does EPA waive the applicable NO
A9: No. Since Reliant Energy compliance proposal for NO
Q10: Does EPA find that there are acceptable alternative procedures proposed for demonstrating compliance with 40 CFR part 60, subpart Da, NO
A10: No. EPA finds that there are two NO
Q: Does EPA allow Berkshire Power's facility in Agawam, Massachusetts to conduct nitrogen oxides (NO
A: Yes. EPA finds that under 40 CFR 60.13(i)(2), it has the authority to approve alternate methods and procedures. Accordingly, EPA approves the request to show compliance with NSPS subpart GG daily calibration requirements by conducting NO
Q1: Could EPA clarify the “Day 0” compliance dates for 40 CFR part 60, subpart GGG, and 40 CFR part 60, subpart WWW, at Brown Ferris Industries of North America's (BFI) Little Dixie Sanitary Landfill in Ridgeland, Mississippi?
A1: EPA finds that based upon the effective date of NSPS subpart GGG, the “Day 0” compliance date would be April 6, 2000. “Day 0” for NSPS subpart WWW compliance would be the day that BFI commenced the vertical expansion approved in a permit issued to the Mississippi Office of Pollution Control on October 14, 2003.
Q2: Could EPA clarify how earlier compliance activities performed under 40 CFR part 60, subpart GGG affect compliance schedules and requirements under 40 CFR part 60, subpart WWW at this landfill?
A2: EPA finds that the impact under these overlapping rules would depend upon whether the non-methane organic compound (NMOC) emission rate from the landfill exceeded 50 megagrams prior to the applicability of NSPS subpart WWW. Triggering this threshold prior to the applicability of NSPS subpart WWW would not change the applicable compliance deadlines under NSPS subpart GGG. If the 50 megagram threshold is not exceeded prior to the applicability of NSPS subpart WWW, prior Tier 2 or Tier 3 test results can be used for calculating NMOC emission rates, provided that the five-year deadline for retesting is based upon the original test date instead of the NSPS subpart WWW applicability date.
Q: Does EPA approve the request for an alternative opacity monitoring method for an oil-fired auxiliary steam generating unit that has a design heat input capacity of 652.58 mmBtu/hr, under 40 CFR part 60, subpart Db, at the Cardinal Power Plant (Cardinal) in Brilliant, Ohio, owned by the American Electric Power (“AEP”) and Buckeye Power Inc.?
A: Yes. EPA approves the alternative opacity monitoring requests, under NSPS subpart Db, provided that the annual capacity factor is limited to 10 percent, and that the company collect opacity data and report exceedances of the opacity standard in 40 CFR 60.43b(f), as discussed in the EPA response.
Q: Does EPA approve a performance test time extension under 40 CFR part 60, subpart OOO, to combine the testing into a single test program upon completion of the proposed modifications at the P.J. Keating Company facility in Acushnet, Massachusetts (Keating)?
A: No. The request involves Keating's primary crusher, and the test is required to demonstrate compliance pursuant to NSPS subpart OOO. Based on the information provided, there are no grounds for an extension under NSPS subpart OOO or 40 CFR 60.8.
Q: Does EPA approve alternative operating parameter monitoring and recording requirements under 40 CFR part 60, subpart Ec, for a medical
A: Yes. EPA approves monitoring and recording the tertiary chamber temperature instead of the secondary chamber temperature and recording the minimum flow rate of 50 percent NaOH to the Evaporative Cooler/Scrubber as a site-specific operating parameter under NSPS subpart Ec. EPA also relieves the hospital from monitoring the minimum pressure drop across the wet scrubber or the minimum horsepower or amperage to the wet scrubber. EPA agrees that, given site-specific considerations, neither of these monitoring parameters is appropriate as the removal efficiency of the acid gases in the spray tower is not dependent upon pressure drop, minimum horsepower, or amperage. Instead, EPA agrees that establishing and monitoring the flow rate of both the 50 percent NaOH (liquid) and the flow rate of the lime injected into the system are appropriate operating parameters for this system.
Q: Does EPA approve an alternative monitoring and recordkeeping frequency for boiler fuel usage from daily to monthly monitoring and recordkeeping, under 40 CFR part 60, subpart Dc, at ISG's Steelton, Pennsylvania steelmaking facility?
A: Yes. EPA approves the change to monthly recordkeeping and monitoring of the boiler fuel usage under NSPS subpart Dc, as this is a very small boiler that combusts only natural gas fuel.
Q: Does EPA approve an alternative monitoring method for opacity, under 40 CFR part 60, subpart Db, for the Koppers Monessen, Pennsylvania coke plant boiler?
A: Yes. EPA finds that this boiler only combusts cleaned coke oven gas as fuel. Therefore, EPA approves the use of Method 22 on a daily basis followed by Method 9 opacity readings by a certified opacity evaluator, if any emissions are witnessed via Method 22.
Q: Does EPA approve an alternative fuel usage recordkeeping frequency, under 40 CFR part 60, subpart Dc, for Nylstar's two Kewanee boilers at its Ridgeway, Virginia plant?
A: Yes. EPA approves the change from daily recordkeeping to monthly recordkeeping of fuel usage under NSPS subpart Dc because only very clean fuels are permitted to be combusted in these boilers.
Q: Does EPA approve a boiler capacity deration due to a burner change, under 40 CFR part 60, subpart Dc, at the Sunsweet Growers facility in Fleetwood, Pennsylvania?
A: Yes. EPA approves of the boiler deration due to the burner change under NSPS subpart Dc. This project will meet the requirements of EPA's deration policy and will be a permanent physical change to the boiler operation that will limit the heat input capacity on a permanent basis.
Q: Does EPA approve a heat input capacity derate procedure, under 40 CFR part 60, subpart Dc, for a boiler, located at Temple University in Pennsylvania, that involves mechanical and electronic changes to limit the heat input to less than 30 million BTUs per hour?
A: No. EPA does not approve of the derate procedure under NSPS subpart Dc because it does not represent a permanent physical change to limit the heat input capacity of the boiler in accordance with established EPA policy.
Q: Can a nitrogen oxides predictive emission monitoring system (PEMS) installed and tested on a 40 CFR part 60, subpart Db boiler at the BP Chemical Company plant in Decatur, Alabama, be used for both the initial performance test and the ongoing compliance monitoring required for the unit?
A: Yes. EPA finds that based on the results of relative accuracy test audits conducted on the PEMS and the large margin of compliance with respect to the applicable emission standard, the PEMS is an acceptable alternative to a continuous emission monitoring system for conducting both the initial performance test and the ongoing compliance monitoring for the boiler under NSPS subpart Db.
Q: Will EPA waive the requirement in 40 CFR 60.486(e)(1) to record a list of identification numbers for certain equipment subject to 40 CFR part 60, subpart VV, for the Solutia facility in Pensacola, Florida?
A: Yes. Pursuant to 40 CFR 60.13(i), EPA finds that a waiver for equipment following the first reaction step in the company's adipic acid process unit is appropriate because NSPS subpart VV, indicates no subsequent requirements which would make use of a detailed record of the equipment which follows the first reaction step. All equipment after the first reaction step will comply with 40 CFR 60.482-8(a)(2) and will be in heavy liquid service. EPA's response also includes a clarification of the recordkeeping and reporting requirements for the equipment in heavy liquid service complying with 40 CFR 60.482-8(a)(2).
Q: Does EPA approve of alternative temperature limits proposed for seven gas collection wells, under 40 CFR part 60, subpart WWW, at the Broadhurst Environmental Landfill located in Screven, Georgia?
A: Yes. EPA finds that the proposed alternative temperature limits are acceptable under NSPS subpart WWW because the criteria for approval of a higher wellhead temperature limit under the provisions in 40 CFR 60.753(c) is met. Specifically, the data indicates that the elevated temperatures in these wells have not caused landfill fires or significantly inhibited anaerobic decomposition at the site.
Q: Does EPA approve an alternative monitoring plan for the purge gas stream to a flare, under 40 CFR part 60, subpart J, at the Valero's Wilmington Refinery?
A: Yes. EPA finds that an alternative monitoring plan is appropriate under NSPS subpart J, provided the purge gas stream is stable and low in H
Q: Could EPA clarify the interpretation of the term “3 percent,” under 40 CFR part 60, subpart O, when recording the average oxygen content measured in the exhaust gas of a sewage sludge incinerator? Specifically, could EPA clarify whether “3 percent” means an oxygen percentage reading plus 3 percent, or 3 percent of the oxygen percentage?
A: 40 CFR 60.155(a)(2) requires that excess oxygen levels be reported. Reportable readings are those readings, when interpreted as a percentage of oxygen in the exhaust gases, that are more than 3 percent oxygen in excess of the percentage measured during the most recent performance test.
Q1: Is a proposal to use an alternative equation for calculating the coke burn-off rate for a fluid catalytic cracking (FCC) unit at the Chevron Products refinery in Pascagoula, Mississippi, acceptable under 40 CFR part 60, subpart J?
A1: Yes. EPA finds that there are typographical errors in the coke burn-off
Q2: Is an alternative method that the Chevron Products proposed to use for determining the catalyst regenerator exhaust gas flow rate acceptable under 40 CFR part 60, subpart J?
A2: Yes. EPA finds that because the equation that Chevron proposes to use for calculating the exhaust gas flow rate comes from 40 CFR part 63, subpart UUU, using the same equation for flow rate calculations under 40 CFR part 60, subpart J is acceptable.
Q1: Is the proposal to use information regarding the fuel consumption rate, flue gas oxygen concentration, and F-factors to calculate the exhaust gas flow rate for two stationary gas turbines at Mississippi State University in Starkville, Mississippi acceptable under 40 CFR part 60, subpart GG?
A1: Yes. EPA finds that the proposed approach for determining the turbines' exhaust gas flow rate is acceptable, provided that the accuracy of the meters used to determine fuel usage rates is comparable to that of EPA Method 2.
Q2: Does EPA find that emission test results from one of the two identical stationary gas turbines can be used to verify compliance for both units under 40 CFR part 60, subpart GG?
A2: Yes. EPA finds that the requested waiver under NSPS subpart GG will be acceptable, provided that the emission rate for the unit that is tested does not exceed 50 percent of the applicable emission standard.
Q: Does EPA approve an alternate monitoring plan for the semi-regenerative reformer regeneration gas streams routed to a reformer heater subject to 40 CFR part 60, subpart J, at ExxonMobil's Torrance, California refinery?
A: Yes. EPA finds that an alternative monitoring plan is allowed under NSPS subpart J, provided these gas streams are stable and low in H
Q: Does EPA approve an alternative monitoring approach for determining glass pull rates at the Knauf Insulation GmbH plant in Alabama to comply with 40 CFR part 60, subpart PPP? Knauf Insulation proposes to use flow cameras, that the company has installed in order to comply with a monitoring requirement contained in 40 CFR Part 63, Subpart NNN, as an alternative to calculating the glass pull rate using the equation in 40 CFR 60.685(b)(3).
A: Yes. EPA finds that determining pull rates using the monitoring system required under 40 CFR part 63, subpart NNN, is acceptable because the results obtained using properly calibrated flow cameras should be more accurate than those determined using the equations in NSPS subpart PPP.
Q: Does EPA approve an alternative nitrogen oxides (NO
A: Yes. EPA finds that the alternative span value proposed by the company (300 ppm) will improve the resolution of the CEMS, and therefore, it is acceptable.
Q: Can the requirement to conduct an initial performance test on the baghouse used to control particulate emissions from the Product Rework Bin facility at the Harborlite Corporation in Youngsville, North Carolina, be waived under 40 CFR part 60, subpart OOO?
A: The performance test waiver requested by the company is unnecessary because the baghouse in question is not subject to a particulate concentration limit under 40 CFR part 60, subpart OOO. The baghouse controls emissions from the Product Rework Bin facility, and not from other parts of the plant. Because of this configuration, the Product Rework Bin facility is subject to an emission standard in 40 CFR 60.672(f) that includes an opacity limit of seven percent but not to the particulate concentration limit that applies to other types of facilities with stack emissions.
Q: Biogen Idec in Research Triangle Park, North Carolina (Biogen), proposes to derate two boilers by replacing the forced draft fans with smaller fans and motors, and reducing the fuel flow capacity. Is this derate proposal acceptable under 40 CFR part 60, subpart Dc?
A: Yes. EPA approves the derate proposal under NSPS subpart Dc since it will permanently reduce the capacity of the boilers, provided Biogen follows the procedures established in EPA's response. If the facility wants to increase the capacity of the boiler after it has been derated, a notification of the proposed modifications must be submitted to the EPA.
Q: Are two separate disposal areas located in Statesville, North Carolina and operated by Iredell County contiguous under 40 CFR part 60, subpart WWW?
A: Yes. EPA finds that although a golf course is located between the closed and active disposal areas, these areas are contiguous because Iredell County owned both of them and two other adjoining properties on the date NSPS subpart WWW was promulgated.
Q: Premium Standard Farms in Clinton, North Carolina, proposes to derate two boilers by replacing the forced draft fans with smaller fans and motors and reducing the fuel flow capacity. Is this derate proposal acceptable under 40 CFR part 60, subpart Dc?
A: Yes. EPA approves the derate proposal under NSPS subpart Dc, since it will permanently reduce the capacity of the boilers, provided Premium Standard Farms follows the procedures established in EPA's response. If the facility wants to increase the capacity of the boiler after it has been derated, a notification of the proposed modifications must be submitted to the EPA.
Q: The Apex Oil Company bulk gasoline terminal in Greensboro, North Carolina, has been modified, and the company requests a waiver from the requirement under 40 CFR 60.8(a) to conduct an initial performance test to demonstrate compliance under 40 CFR part 60, subpart XX. Will EPA grant a waiver from the requirement for an initial performance test based on the results of a test conducted ten years ago?
A: No. An initial performance test will be needed to document compliance under NSPS subpart XX following the modification of the facility.
Q: Is the opacity monitoring alternative that the ABC Coke Company proposes for a natural gas and coke oven gas-fired boiler at its Birmingham, Alabama, coke plant acceptable under 40 CFR part 60, subpart Db?
A: Yes. EPA finds that conducting visible emission observations would be an acceptable alternative to a continuous opacity monitoring system for ABC Coke, provided specific conditions listed in the EPA response letter are met.
Q: Are the monitoring requirements for landfill gas wells applicable to leachate collection risers connected to the active gas collection system, under 40 CFR part 60, subpart WWW, at the Carter Valley Landfill in Church Hill, Tennessee?
A: EPA finds that the applicability of the monitoring requirements in question depends upon the age of the waste where the risers are located. Any risers collecting gas from active areas where waste has been in place for five years or more or where waste has been in place for two years or more in either closed areas or areas that are at final grade would be subject to the monitoring requirements in NSPS subpart WWW.
Q: Could EPA clarify what is the correct monitor path length value to use for the outer section of a stack at the Asarco copper smelter in Hayden, Arizona (Asarco), under 40 CFR part 60, subparts A and P? The copper smelter discharges emissions to the atmosphere from a 1000 feet tall stack that incorporates physically separate inner and outer sections.
A: EPA finds that for purposes of NSPS subparts A and P, Asarco may use the outer diameter minus the inner diameter of the tall stack for the monitor pathlength of the continuous opacity monitoring system operated in the outer, or annular, section of the tall stack.
Q: Does EPA approve Eastman Chemical Company's, Kingsport, Tennessee plant (Eastman) proposal to monitor for the presence of a pilot flame, in order to verify the performance under 40 CFR part 60, subpart NNN of an enclosed flare at its Kingsport, Tennessee plant?
A: No. Verifying the presence of a pilot flame alone is not sufficient. To provide adequate assurance of compliance under NSPS subpart NNN, Eastman must conduct testing to identify the flare temperature needed to achieve the required level of volatile organic compound destruction.
Q: Does EPA approve alternative monitoring plans for 22 separate refinery fuel gas streams at the Chevron's Richmond, California (Chevron) refinery under 40 CFR part 60, subpart J?
A: Yes. Chevron's submittal meets the requirements of EPA's refinery fuel gas guidance titled Alternative Monitoring Plan for NSPS Subpart J Refinery Fuel Gas, and is approved in accordance with the specific technical elements specified in attachments to EPA's approval letter.
Q1: Will EPA approve a request to deviate from the assumption that a violation of the carbon monoxide (CO) emission limit occurs if the facility operates their hospital medical infectious waste incinerator (HMIWI) above the maximum charge rate and below the minimum secondary combustion chamber temperature simultaneously as stated in 40 CFR part 60, subpart Ec, 40 CFR 60.56c(e)(1), if the facility has actual CO emissions data on a real-time basis from a CO continuous emissions monitoring system (CEMS)?
A1: Yes. EPA agrees that direct measurement of CO emissions using an EPA compliant continuous CO emissions monitor, which shows that CO emissions are within the allowable limit of 40 parts per million by volume adjusted to 7 percent oxygen measured on a dry basis at standard conditions, is superior to using surrogate parameters. As a matter of policy, the first and foremost option considered by the EPA is to require the use of CEMS to demonstrate continuous compliance with specific emission limits. Other options are considered only when CEMS are not available or when the impacts of including such requirements are considered unreasonable. In addition, a CEMS for oxygen must be installed, calibrated, maintained, and operated to monitor the oxygen concentration at each location where you monitor CO. EPA describes requirements applicable to CEMS in the response.
Q2: Will EPA approve a request to eliminate the operating parameter monitoring requirements for maximum charge rate as specified in 40 CFR 60.57c(a) and in Table 3 of 40 CFR part 60, subpart Ec?
A2: No. EPA will not grant approval to eliminate monitoring the maximum charge rate as an operating parameter as it is linked to all emission limits, and not only to CO emissions. According to the definition for maximum charge rate for a continuous and intermittent hospital medical infectious waste incinerator (HMIWI) given in 40 CFR 60.51c, the maximum charge rate is linked to compliance with all applicable emission limits, which includes particulate matter (PM), CO, dioxins/furans, hydrogen chloride (HCl), lead (Pb), cadmium (Cd), mercury (Hg), sulfur dioxide (SO
Q3: Will EPA approve a request to eliminate the operating parameter monitoring requirements for minimum secondary chamber temperature as specified in 40 CFR 60.57c(a) and Table 3 of 40 CFR part 60, subpart Ec?
A3: Yes. EPA approves eliminating monitoring of the minimum secondary chamber temperature as an operating parameter when the CO emissions are measured using an EPA compliant continuous CO monitor, as described in the response letter, and the emissions are within the CO emission limits. EPA views CO emissions level as a function of combustion efficiency and agrees that the use of an EPA compliant continuous CO monitor will provide the information on combustion efficiency that the surrogate parameter of secondary chamber temperature was intended to provide.
Q4: Will EPA approve a request to eliminate the record keeping requirements for HMIWI charge dates, times, and weights and hourly charge rates as specified in 40 CFR 60.58c(b)(2)(iii) in 40 CFR part 60, subpart Ec?
A4: No. As previously stated in A2, above, the maximum charge rate parameters are linked to other emission limits besides CO emission limits.
Q5: Will EPA approve a request to eliminate the record keeping requirements for the HMIWI secondary chamber temperatures for each minute of operation as specified in 40 CFR part 60, subpart Ec?
A5: Yes. EPA agrees that actual data from an EPA compliant continuous CO monitor will provide the information on combustion efficiency that the surrogate parameter of secondary chamber temperature was intended to provide.
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document promulgates final regulations under section 403(b) of the Internal Revenue Code and under related provisions of sections 402(b), 402(g), 402A, and 414(c). The regulations provide updated guidance on section 403(b) contracts of public schools and tax-exempt organizations described in section 501(c)(3). These regulations will affect sponsors of section 403(b) contracts, administrators, participants, and beneficiaries.
Effective Date: July 26, 2007.
Concerning the regulations, John Tolleris, (202) 622-6060; concerning the regulations as applied to church-related entities, Robert Architect (202) 283-9634 (not toll-free numbers).
The collection of information in § 1.403(b)-10(b)(2)(i)(C) of these final regulations has been approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2068. Responses to this collection of information are required in order to provide certain benefits.
The estimated burden per respondent varies among the plan administrator/payor/recordkeeper, depending upon individual respondents’ circumstances, with an estimated average of 4.1 hours. Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.
The collection of information in § 1.403(b)-10(b)(2)(i)(C) of these final regulations was not contained in the prior notice of proposed rulemaking. For this reason, this additional collection of information has been reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2068. Comments concerning this additional collection of information should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503. Comments on the collection of information should be received by September 24, 2007. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the proper performance of the functions of the Internal Revenue Service, including whether the information will have practical utility;
The accuracy of the estimated burden associated with the proposed collection of information (see above);
How the quality, utility, and clarity of the information to be collected may be enhanced;
How the burden of complying with the proposed collections of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of service to provide information.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number assigned by the Office of Management and Budget.
The estimated burden per respondent varies among the plan administrator/payor/recordkeeper, depending upon individual respondents’ circumstances, with an estimated average of 4.1 hours.
Books or records relating to a collection of information must be retained as long as their contents might become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Regulations (TD 6783) under section 403(b) of the Internal Revenue Code (Code) were originally published in the
On November 16, 2004, a notice of proposed rulemaking (REG-155608-02) was published in the
Following publication of the 2004 proposed regulations, comments were received and a public hearing was held on February 15, 2005. After consideration of the comments received, the 2004 proposed regulations are adopted by this Treasury decision,
Section 403(b) was also amended by sections 811, 821, 822, 824, 826, and 829 of the Pension Protection Act of 2006 (PPA '06) (120 Stat. 780), Public Law 109-280. These final regulations reflect these amendments.
Section 403(b) provides an exclusion from gross income for certain contributions made by specific types of employers for their employees and by certain ministers to specified types of funding arrangements. The employers are limited to public schools and section 501(c)(3) organizations. There are three categories of funding arrangements to which section 403(b) applies: (1) Annuity contracts (as defined in section 401(g)) issued by an insurance company; (2) custodial accounts that are invested solely in mutual funds; and (3) retirement income accounts, which are only permitted for church employees and certain ministers. Except as otherwise indicated, an annuity contract, for purposes of these final regulations, includes a custodial account that is invested solely in mutual funds.
The exclusion applies to employer nonelective contributions (including matching contributions) and elective deferrals (other than designated Roth contributions) within the meaning of section 402(g)(3)(C) (which applies to section 403(b) contributions made pursuant to a salary reduction agreement). The exclusion applies only if certain requirements relating to availability, nondiscrimination, and distribution are satisfied. Section 403(b) arrangements may also include after-tax employee contributions.
Section 403(b)(1)(C) requires that the contract be nonforfeitable (except for the failure to pay future premiums), regardless of the type of contribution used to purchase the contract. Section 403(b)(1)(E) requires a section 403(b) contract purchased under a salary reduction agreement to satisfy the requirements of section 401(a)(30) relating to limitations on elective deferrals under section 402(g)(1). In addition, all contributions to a section 403(b) arrangement, when expressed as annual additions under section 415(c)(2), must not exceed the applicable limit of section 415.
Section 403(b)(5) provides that all section 403(b) contracts purchased for an individual by an employer are treated as purchased under a single contract for purposes of the requirements of section 403(b). Other aggregation rules apply both on an individual and aggregate basis. For example, the section 402(g) limitations on elective deferrals apply to all elective deferrals during the year with respect to an individual and the limitations of section 401(a)(30) apply to all elective deferrals made by an employer to that employer's plans with respect to an individual during the year. The contribution limitations of section 415 generally apply on an employer-by-employer basis.
Section 403(b)(12) requires a section 403(b) contract that provides for elective deferrals to make elective deferrals available to all employees (the universal availability rule) and requires other contributions to satisfy the general nondiscrimination requirements applicable to qualified plans. These rules are discussed further in this preamble under the heading “Section 403(b) Nondiscrimination and Universal Availability Rules.”
A section 403(b) contract is also required to provide that it will satisfy the required minimum distribution requirements of section 401(a)(9), the incidental benefit requirements of section 401(a), and the rollover distribution rules of section 402(c).
Many section 403(b) arrangements of employers that are section 501(c)(3) organizations are subject to the Employee Retirement Income Security Act of 1974 (ERISA), which includes rules substantially identical to the rules for qualified plans, including rules parallel to the section 414(l) transfer rules, the section 401(a)(11) qualified joint and survivor annuity (QJSA) transferee plan rules, and the anti-cutback rules of section 411(d)(6) (which apply to transfers). See sections 204(g), 205, and 208 of ERISA. However, as discussed in this preamble under the heading “Interaction Between Title I of ERISA and Section 403(b) of the Code,” Title I of ERISA does not apply to governmental plans, certain church plans, or a tax-exempt employer's section 403(b) program that is not considered to constitute the establishment or maintenance of an “employee pension benefit plan” under Title I of ERISA.
Section 414(c) authorizes the Secretary of the Treasury to issue regulations treating all employees of trades or businesses which are under common control as employed by a single employer.
Like the 2004 proposed regulations, these final regulations are a comprehensive update of the current regulations under section 403(b). These regulations replace the existing final regulations that were adopted in 1964 and reflect the numerous legal changes that have been made in section 403(b) since then and many of the positions that have been taken in interpretive guidance that has been issued under section 403(b).
As was noted in the preamble to the 2004 proposed regulations, the effect of the various amendments made to section 403(b) within the past 40 years has been to diminish the extent to which the rules governing section 403(b) plans differ from the rules governing other tax-favored employer-based retirement plans, including arrangements that include salary reduction contributions, such as section 401(k) plans and section 457(b) plans for state and local governmental entities. However, there remain significant differences between section 403(b) plans and section 401(a) and governmental section 457(b) plans. For example, section 403(b) is limited to certain specific employers and employees (namely, employees of a public school, employees of a section 501(c)(3) organization, and certain ministers) and to certain funding arrangements (namely, an insurance annuity contract, a custodial account that is limited to mutual fund shares, or a church retirement income account). Also, section 403(b) contains the universal availability requirement for section 403(b) elective deferrals and provides consequences for failing to satisfy certain of the section 403(b) rules (described in this preamble under the heading “Effect of a Failure to Satisfy Section 403(b)”)
The final regulations, as did the 2004 proposed regulations, require the section 403(b) contract to satisfy both in form and operation the applicable requirements for exclusion. The final regulations also require that the contract
The final regulations, like the proposed regulations, provide rules under which tax-exempt entities are aggregated and treated as a single employer under section 414(c). These rules apply to plans referenced in section 414(b), (c), (m), (o), and (t), such as plans qualified under section 401(a) or 403(a), as well as section 403(b) plans.
Comments on the 2004 proposed regulations raised a number of questions and concerns about:
• The requirement in the 2004 proposed regulations under which a section 403(b) contract would be required to be maintained pursuant to a written plan;
• The elimination of certain non-statutory exclusions that a section 403(b) plan was permitted to have under Notice 89-23 (1989-1 CB 654) for purposes of the universal availability rule;
• The elimination of Rev. Rul. 90-24 (1990-1 CB 97), which allowed a section 403(b) contract to be exchanged for another contract; and
• The controlled group rules under section 414(c) for entities that are tax-exempt under section 501(a).
These regulations retain the requirement from the 2004 proposed regulations that a section 403(b) contract be issued pursuant to a written plan which, in both form and operation, satisfies the requirements of section 403(b) and these regulations. This requirement implements the statutory requirements of section 403(b)(1)(D), which provides that the contract must be purchased “under a plan” that satisfies the nondiscrimination requirements delineated in section 403(b)(12).
The existence of a written plan facilitates the allocation of plan responsibilities among the employer, the issuer of the contract, and any other parties involved in implementing the plan. Without such a central document for a comprehensive summary of responsibilities, there is a risk that many of the important responsibilities required under the statute and final regulations may not be allocated to any party. While a section 403(b) contract issued to an employee can provide for the issuer to perform many of these functions by itself, the contract cannot satisfy the function of setting forth the eligibility criteria for other employees, nor can the issuer by itself coordinate those Code requirements that depend on other contracts, such as the loan limitations under section 72(p). The issuer must rely on information or representations provided by either the employer or the employee for employment-based information that is essential for compliance with section 403(b) provisions, such as the limitations on elective deferrals in section 402(g) and the requirements of section 72(p)(2) for a plan loan that is not a taxable deemed distribution. In addition to providing a central locus to coordinate those functions, the maintenance of a written plan also benefits participants by providing a central document setting forth their rights and enables government agencies to determine whether the arrangements satisfy applicable law and, in particular, for determining which employees are eligible to participate in the plan.
The 2004 proposed regulations would have required that the section 403(b) plan include all of the material provisions regarding eligibility, benefits, applicable limitations, the contracts available under the plan, and the time and form under which benefit distributions would be made. The proposed regulations would not have required that there be a single plan document. However, under the proposed regulations, the written plan requirement would be satisfied by complying with the plan document rules applicable to qualified plans.
Some comments raised concerns that the written plan requirement would impose additional administrative burdens. In response, the final regulations make a number of clarifications, including that the plan is permitted to allocate to the employer or another person the responsibility for performing functions to administer the plan, including functions to comply with section 403(b). Any such allocation must identify who is responsible for compliance with the requirements of the Code that apply based on the aggregated contracts issued to a participant, including loans under section 72(p) and the requirements for obtaining a hardship withdrawal under § 1.403(b)-6 of these regulations.
Additional comments recommended that certain responsibilities be permitted to be allocated to employees. The IRS and Treasury Department have concluded that it is generally inappropriate to allocate these responsibilities to employees for a number of reasons. First, employees often lack the expertise to systematically meet these responsibilities and may not recognize the importance of performing these actions (including not fully appreciating the tax consequences of failing to perform the responsibility). Second, an individual employee may have a self-interest in a particular transaction. In addition, while there are various factors that will often cause an employer or issuer to have an interest in procedures that ensure that the requirements of section 403(b) are satisfied (including income tax withholding requirements), an employee generally bears the income tax exposure and other risks of failing to comply with rules set forth in the plan. The IRS and Treasury Department believe it is important to prevent failures in advance so as to minimize the cases in which the adverse effects of a failure fall on the employee. See the discussion in this preamble under the heading “Contract Exchanges.”
In response to comments, the final regulations clarify the requirement that the plan include all of the material provisions by permitting the plan to incorporate by reference other documents, including the insurance policy or custodial account, which as a result of such reference would become part of the plan. As a result, a plan may include a wide variety of documents, but it is important for the employer that adopts the plan to ensure that there is no conflict with other documents that are incorporated by reference. If a plan does incorporate other documents by reference, then, in the event of a conflict with another document, except in rare and unusual cases, the plan would govern. In the case of a plan that is funded through multiple issuers, it is expected that an employer would adopt a single plan document to coordinate administration among the issuers, rather than having a separate document for each issuer.
Finally, comments also indicated that, while section 403(b) contracts that are subject to ERISA are maintained pursuant to written plans, there may be a potential cost associated with satisfying the written plan requirement for those employers that do not have existing plan documents, such as public schools. To address this concern, the IRS and Treasury Department expect to publish guidance which includes model plan provisions that may be used by public school employers for this purpose. Because the requirement for a written plan will not go into effect until 2009 (see the discussion under the heading “Applicability date”), employers would be expected to adopt a written plan (including applicable amendments) no later than the applicability date of these regulations.
The final regulations, like the 2004 proposed regulations, provide for three specific kinds of non-taxable exchanges or transfers of amounts in section 403(b) contracts. Specifically, under the final regulations, a non-taxable exchange or transfer is permitted for a section 403(b) contract if either: (1) It is a mere change of investment within the same plan (contract exchange); (2) it constitutes a plan-to-plan transfer, so that there is another employer plan receiving the exchange; or (3) it is a transfer to purchase permissive service credit (or a repayment to a defined benefit governmental plan). If an exchange or transfer does not constitute a change of investment within the plan, a plan-to-plan transfer, or a purchase of permissive service credit, the exchange or transfer would be treated as a taxable distribution of benefits in the form of property if the exchange occurs after a distributable event (assuming the distribution is not rolled over to an eligible retirement plan) or as a taxable conversion to a section 403(c) nonqualified annuity contract if a distributable event has not occurred. See the “Effect of a Failure to Satisfy Section 403(b)” section in this preamble for discussion of section 403(c) nonqualified annuity contracts. In any case in which a distributable event has occurred, a participant in a section 403(b) plan can always change the investment through a distribution and non-taxable rollover from a section 403(b) contract to an IRA annuity, as long as the distribution is an eligible rollover distribution. Note, however, that an IRA annuity cannot include provisions permitting participant loans. See section 408(e)(3) and (4) and §§ 1.408-1(c)(5) and 1.408-3(c).
Any contract exchange, plan-to-plan transfer, or purchase of permissive service credit that is permitted under the final regulations is not treated as a distribution for purposes of the section 403(b) distribution restrictions (so that such an exchange or transfer may be made before severance from employment or another distribution event).
Rev. Rul. 73-124 (1973-1 CB 200) and Rev. Rul. 90-24 (1990-1 CB 97) dealt with contract exchanges. Rev. Rul. 73-124 had allowed section 403(b) contracts to be exchanged, without income inclusion, if, pursuant to an agreement with the employer, the employee cashed in the first contract and immediately transmitted the cash proceeds for contribution to the successor contract to which all subsequent employer contributions would be made. This ruling was replaced by Rev. Rul. 90-24 which does not provide for the first contract to be cashed in but allows section 403(b) contracts to be exchanged, without income inclusion, so long as the successor contract includes distribution restrictions that are the same or more stringent than the distribution restrictions in the contract that is being exchanged.
The 2004 proposed regulations would have imposed additional restrictions on contract exchanges by limiting tax-free contract exchanges to situations in which the new contract is provided under the plan. The proposal was intended to improve compliance with the Code requirements that apply on an aggregated basis because, without coordination, it is difficult, if not impossible, for a plan to comply with those tax requirements. These requirements include certain distribution restrictions, including the rule that requires the suspension of deferrals for a plan that uses the hardship withdrawal suspension safe harbor rules for elective deferrals, and the section 72(p) rules for loans. In addition, these changes make it easier for employers to respond to an IRS inquiry or audit. For example, where assets have been transferred to an insurance carrier or mutual fund that has no subsequent connection to the plan or the employer, IRS audits and related investigations have revealed that employers encounter substantial difficulty in demonstrating compliance with hardship withdrawal and loan rules. These problems are particularly acute when an individual's benefits are held by numerous carriers. Such multiple contract issuers are commonly associated with plans in which Rev. Rul. 90-24 exchanges have occurred.
Commentators generally objected to the proposal to limit exchanges allowed under Rev. Rul. 90-24. They argued that such exchanges enable participants to change funding arrangements and claimed that these exchanges have generally been responsible for improved efficiency and lower cost in the section 403(b) market. Comments often included specific suggestions, such as limiting any restrictions on exchanges to active employees and effectuating compliance with loan restrictions by alternative methods, such as having the issuer report loans on, for example, a Form 1099-R (Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRA, Insurance Contracts), or notify the employer about loans. Other comments included a recommendation that the employer be involved to ensure that the exchange is within the plan. Comments also suggested that a grandfather may be necessary for exchanges made before the applicability date of the restrictions imposed by the final regulations.
These final regulations include a number of changes to reflect these comments. The regulations allow contract exchanges with certain characteristics associated with Rev. Rul. 90-24, but under rules that are generally similar to those applicable to qualified plans.
Unlike the 2004 proposed regulations, these regulations permit an exchange of one contract for another to constitute a mere change of investment within the same plan, but only if certain conditions are satisfied in order to facilitate compliance with tax requirements. Specifically, the other contract must include distribution restrictions that are not less stringent than those imposed on the contract being exchanged and the employer must enter into an agreement with the issuer of the other contract under which the employer and the issuer will from time to time in the future provide each other with certain information. This includes information concerning the participant's employment and information that takes into account other section 403(b) contracts or qualified employer plans, such as whether a severance from employment has occurred for purposes of the distribution restrictions and whether the hardship withdrawal rules in the regulations are satisfied. Additional information that is required is information necessary for the resulting contract or any other contract to which contributions have been made by the employer to satisfy other tax requirements, such as whether a plan loan constitutes a deemed distribution under section 72(p).
These regulations also authorize the IRS to issue guidance of general applicability allowing exchanges in other cases. This authority is limited to cases in which the resulting contract has procedures that the IRS determines are reasonably designed to ensure compliance with those requirements of section 403(b) or other tax provisions that depend on either information concerning the participant's employment or information that takes into account other section 403(b) contracts or qualified employer plans. For example, the procedures must be reasonably designed to determine whether a severance from employment has occurred for purposes of the
The final regulations expand the rules in the 2004 proposed regulations under which plan-to-plan transfers would have been permitted only if the participant was an employee of the employer maintaining the receiving plan. Under the final regulations, plan-to-plan transfers are permitted if the participant whose assets are being transferred is an employee or former employee of the employer (or business of the employer) that maintains the receiving plan and certain additional requirements are met. However, the final regulations retain the rules that were in the 2004 proposed regulations prohibiting a plan-to-plan transfer to a qualified plan, an eligible plan under section 457(b), or any other type of plan that is not a section 403(b) plan, except as described in the next paragraph. Similarly, a section 403(b) plan is not permitted to accept a transfer from a qualified plan, an eligible plan under section 457(b), or any other type of plan that is not a section 403(b) plan.
The final regulations, like the 2004 proposed regulations, include an exception permitting a section 403(b) plan to provide for the transfer of its assets to a qualified plan under section 401(a) to purchase permissive service credit under a defined benefit governmental plan or to make a repayment to a defined benefit governmental plan.
The final regulations, like the 2004 proposed regulations, provide that the section 403(b) exclusion applies only to the extent that all amounts contributed by the employer for the purchase of an annuity contract for the participant do not exceed the applicable limits under section 415. The final regulations retain the rule in the 2004 proposed regulations that if an excess annual addition is made to a contract that otherwise satisfies the requirements of section 403(b), then the portion of the contract that includes the excess will fail to be a section 403(b) contract (and instead will be a contract to which section 403(c), relating to nonqualified annuity contracts, applies) and the remaining portion of the contract that includes the contribution that is not in excess of the section 415 limitations is a section 403(b) contract. This rule under which only the excess annual addition is subject to section 403(c) does not apply unless, for the year of the excess and each year thereafter, the issuer of the contract maintains separate accounts for the portion that includes the excess and for the section 403(b) portion (which is the portion that includes the amount that is not in excess of the section 415 limitations).
With respect to section 403(b) elective deferrals, section 403(b) applies only if the contract is purchased under a plan that includes the elective deferral limits under section 402(g), including aggregation of all plans, contracts, or arrangements of the employer that are subject to the limits of section 402(g). As in the 2004 proposed regulations, the final regulations require a section 403(b) contract to include this limit on section 403(b) elective deferrals, as imposed under sections 401(a)(30) and 402(g). For purposes of the final regulations, the term “elective deferral” includes a designated Roth contribution as well as a pre-tax elective contribution. These rules are generally the same as the rules for qualified cash or deferred arrangements (CODAs) under section 401(k).
Any contribution made for a participant to a section 403(b) contract for a taxable year that exceeds either the section 415 maximum annual contribution limits or the section 402(g) elective deferral limit constitutes an excess contribution that is included in gross income for that taxable year (or, if later, the taxable year in which the contract becomes nonforfeitable). The final regulations, like the 2004 proposed regulations, provide that the section 403(b) plan (including contracts under the plan) may provide that any excess deferral as a result of a failure to comply with the section 402(g) elective deferral limit for the taxable year with respect to any section 403(b) elective deferral made for a participant by the employer will be distributed to the participant, with allocable net income, no later than April 15 or otherwise in accordance with section 402(g).
A section 403(b) plan may provide for additional catch-up contributions for a participant who is age 50 by the end of the year, provided that those age 50 catch-up contributions do not exceed the catch-up limit under section 414(v) for the taxable year ($5,000 for 2007). In addition, a section 403(b) plan may provide that an employee of a qualified organization who has at least 15 years of service (disregarding any period during which an individual is not an employee of the eligible employer) is entitled to a special section 403(b) catch-up limit. Under the special section 403(b) catch-up limit, the section 402(g) limit is increased by the lowest of the following three amounts: (i) $3,000; (ii) the excess of $15,000 over the amount not included in gross income for prior taxable years by reason of the special section 403(b) catch-up rules, plus elective deferrals that are designated Roth contributions;
The 2004 proposed regulations defined a health and welfare service agency as either an organization whose primary activity is to provide medical care as defined in section 213(d)(1) (such as a hospice), or a section 501(c)(3) organization whose primary activity is the prevention of cruelty to individuals or animals or which provides substantial personal services to the needy as part of its primary activity (such as a section 501(c)(3) organization that provides meals to needy individuals). In response to several commentators' requests, the final regulations expand this definition to include an adoption agency and an agency that provides either home health services or assistance to individuals with substance abuse problems or that provides help to the disabled.
Like the 2004 proposed regulations, the final regulations provide that any
The final regulations, like the 2004 proposed regulations, contain provisions reflecting the statutory rules regarding when distributions can be made from a section 403(b) plan. Distributions of amounts attributable to section 403(b) elective deferrals may not be paid to a participant earlier than when the participant has a severance from employment, has a hardship, becomes disabled (within the meaning of section 72(m)(7)), or attains age 59
The final regulations, as did the 2004 proposed regulations, include a number of exceptions to the timing restrictions. For example, the rule for elective deferrals does not apply to distributions of section 403(b) elective deferrals (not including earnings thereon) that were contributed before January 1, 1989.
The final regulations, as did the 2004 proposed regulations, reflect the direct rollover rules of section 401(a)(31) and the related requirements of section 402(f) concerning the written explanation requirement for distributions that qualify as eligible rollover distributions, including conforming the timing rule to the rule for qualified plans.
In addition to the restrictions described in this preamble, the final regulations generally retain, with certain modifications, the additional rules from the 2004 proposed regulations relating to when distributions are permitted to be made from a section 403(b) plan, including the restrictions described in this preamble imposed by section 403(b)(7)(A)(ii) and (11) on distribution of amounts held in custodial accounts and elective deferrals, and the tax treatment of distributions from section 403(b) plans. Comments raised no objections to the various rules that were proposed in 2004, other than concerning the general rule requiring the occurrence of a stated event. The 2004 proposed regulations generally would have required the occurrence of a stated event in order to commence distributions of amounts attributable to employer contributions to section 403(b) plans other than elective deferrals or distributions from custodial accounts. The stated event rule is substantially the same as the rule applicable to qualified defined contribution plans that are not money purchase pension plans (under § 1.401-1(b)(1)(ii)), so that a plan is permitted to provide for a distribution upon completion of a fixed number of years (such as five years of participation), the attainment of a stated age, or upon the occurrence of some other identified event (such as the occurrence of a financial need,
However, the final regulations make a number of changes relating to distributions. First, the final regulations clarify that after-tax employee contributions are not subject to any in-service distribution restrictions. Second, the regulations address comments that were made regarding certain disability arrangements by clarifying that, if an insurance contract includes provisions under which contributions will be continued in the event a participant becomes disabled, then that benefit is treated as an incidental benefit that must satisfy the incidental benefit requirement applicable to qualified plans (at § 1.401-1(b)(1)(ii)). Third, changes were made to reflect elective deferrals that are designated Roth contributions, discussed further later in this preamble under the heading, “Requirement of Certain Separate Accounts Under Section 403(b).” Fourth, § 1.403(b)-7(b)(5) has been added referencing the automatic rollover rules of section 401(a)(31), in accordance with section 403(b)(10). See Notice 2005-5, 2005-1 CB 337, for rules interpreting this requirement. Fifth, a cross-reference to certain employment tax rules was added, discussed under the heading “Employment Taxes.” Sixth, in response to comments, the final regulations provide that the general rule requiring the occurrence of a stated event in order for distributions to commence does not apply to insurance contracts issued before January 1, 2009, and a special rule has been added allowing conforming amendments to be adopted by plans that are subject to ERISA. Section 1.403(b)-10(c) has been clarified to indicate that in order to be treated as a distribution under this section, the distribution must be pursuant to a QDRO as described in section 206(d)(3) of ERISA and the Department of Labor's guidance.
The final regulations, like the 2004 proposed regulations, define severance from employment in a manner that is generally the same as the regulations under section 401(k) (see § 1.401(k)-1(d)(2)), but provide that, for purposes of distributions from a section 403(b) plan, a severance from employment occurs on any date on which the employee ceases to be employed by an eligible employer that maintains the section 403(b) plan. Thus, a severance from employment would occur when an employee ceases to be employed by an eligible employer, even though the employee may continue to be employed by an entity that is part of the same controlled group but that is not an eligible employer, or on any date on which the employee works in a capacity that is not employment with an eligible employer. Examples of the situations that constitute a severance from employment include: an employee transferring from a section 501(c)(3) organization to a for-profit subsidiary of the section 501(c)(3) organization; an employee ceasing to work for a public school, but continuing to be employed by the same State; and an individual employed as a minister for an entity that is neither a State nor a section 501(c)(3) organization ceasing to perform services as a minister, but continuing to be employed by the same entity.
The final regulations, like the 2004 proposed regulations, require section 403(b) plans to comply with rules similar to those in the existing regulations relating to the required minimum distribution requirements of section 401(a)(9), but with some minor changes (for example, omitting the special rules for 5-percent owners). Thus, section 403(b) contracts must satisfy the incidental benefit rules. Guidance concerning the application of the incidental benefit requirements to permissible nonretirement benefits such as life, accident, or health benefits is contained in revenue rulings.
The final regulations adopt the provisions in the 2004 proposed regulations relating to loans to participants from a section 403(b) contract.
The final regulations also adopt the 2004 proposed regulations” limited rules relating to QDROs under section 414(p). Section 414(p)(9) provides that the QDRO rules only apply to plans that are subject to the anti-alienation provisions of section 401(a)(13), except that section 414(p)(9) also provides that the section 414(p) QDRO rules apply to a section 403(b) contract. The final regulations, like the proposed regulations, clarify that the QDRO rules under section 414(p) apply to section 403(b) plans. The Secretary of Labor has authority to interpret the QDRO provisions, section 206(d)(3), and its parallel provision at section 414(p) of the Code, and to issue QDRO regulations in consultation with the Secretary of the Treasury. 29 U.S.C. 1056(d)(3)(N). Under section 401(n) of the Internal Revenue Code, the Secretary of the Treasury has authority to issue rules and regulations necessary to coordinate the requirements of section 414(p) (and the regulations issued by the Secretary of Labor thereunder) with the other provisions of Chapter I of Subtitle A of the Code.
The final regulations, like the 2004 proposed regulations, reflect the statutory provisions regarding the taxation of distributions and benefits from section 403(b) contracts, including the provision that generally only amounts actually distributed from a section 403(b) contract are includible in the gross income of the recipient under section 72 for the year in which distributed. The final regulations also reflect the rule that any payment that constitutes an eligible rollover distribution is not taxed in the year distributed to the extent the payment is rolled over to an eligible retirement plan. The payor must withhold 20 percent Federal income tax, however, if an eligible rollover distribution is not rolled over in a direct rollover. Another provision requires the payor to give proper written notice to the section 403(b) participant or beneficiary concerning the eligible rollover distribution provision.
Section 403(b)(12)(A)(i) requires that employer contributions, other than elective deferrals, and after-tax employee contributions made under a section 403(b) contract satisfy a specified series of requirements (the nondiscrimination requirements) in the same manner as a qualified plan under section 401(a). These nondiscrimination requirements include rules relating to nondiscrimination in contributions, benefits, and coverage (sections 401(a)(4) and 410(b)), a limitation on the amount of compensation that can be taken into account (section 401(a)(17)), and the average contribution percentage rules of section 401(m) (relating to matching and after-tax employee contributions).
Notice 89-23 discusses these requirements and provides a good faith reasonable standard for satisfying these requirements. The 2004 proposed regulations would have eliminated the good faith reasonable standard for satisfying the nondiscrimination requirements of section 403(b)(12)(A)(i) for non-governmental plans. Comments acknowledged the need for and the IRS's authority to make this change. Accordingly, these final regulations do not include the Notice 89-23 good faith reasonable standard.
However, as discussed in this preamble under the heading “Treatment of Controlled Groups that Include Certain Entities,” the Notice 89-23 good faith reasonable standard will continue to apply to State and local public schools (and certain church entities) for determining the controlled group. Although the general nondiscrimination requirements do not apply to governmental plans (within the meaning of section 414(d)), these plans are required to limit the amount of compensation to the amount permitted under section 401(a)(17) for all purposes under the plan, including, for example the amount of compensation taken into account for employer contributions, and are required to satisfy the universal availability rule (described in this preamble under the heading “Universal Availability for Elective Deferrals”). A non-governmental section 403(b) plan that provides for nonelective employer contributions must satisfy the coverage requirements of section 410(b) and the nondiscrimination requirements of section 401(a)(4) with respect to such contributions.
These final regulations, like the 2004 proposed regulations, require a section 403(b) plan to comply with the nondiscrimination requirements for matching contributions in the same manner as a qualified plan. Thus, a non-governmental section 403(b) plan that provides for matching contribution must satisfy the nondiscrimination requirements of section 401(m). The nondiscrimination requirements are generally tested using compensation as defined in section 414(s) and are applied on an aggregated basis taking into account all plans of the employer. See the discussion under the heading “Treatment of Controlled Groups that Include Certain Entities.”
The nondiscrimination requirements do not apply to section 403(b) elective deferrals. Instead, a universal availability requirement, discussed further in the next section, applies to all section 403(b) elective deferrals (including elective deferrals made under a governmental section 403(b) plan).
The universal availability requirement of section 403(b)(12)(A)(ii) provides that all employees of the eligible employer must be permitted to elect to have section 403(b) elective deferrals contributed on their behalf if any employee of the eligible employer may elect to have the organization make section 403(b) elective deferrals. Under the 2004 proposed regulations, the universal availability requirement would not have been satisfied unless the contributions were made pursuant to a section 403(b) plan and the plan permitted all employees of an employer an opportunity to make elective deferrals if any employee of that employer has the right to make elective deferrals.
The rules in the final regulations relating to the universal availability requirement are substantially similar to those in the 2004 proposed regulations. The final regulations clarify that the employee's right to make elective deferrals also includes the right to designate section 403(b) elective deferrals as designated Roth contributions (if any employee of the eligible employer may elect to have the organization make section 403(b) elective deferrals as designated Roth contributions).
The preamble to the 2004 proposed regulations requested comments regarding certain exclusions that have been permitted under transitional guidance issued in 1989. Specifically, Notice 89-23 had allowed, pending issuance of regulatory guidance, the exclusion of the following classes of employees for purposes of the universal availability rule: Employees who are
The comments submitted in response to the request generally requested to have these exclusions continue to be allowed. However, after consideration of the comments received, the IRS and Treasury Department have concluded that these exclusions are inconsistent with the statute and, accordingly, they are not permitted under these regulations. Nonetheless, as described further in the following paragraphs, other rules may provide relief with respect to individuals who are under a vow of poverty and to certain university professors affected.
Rev. Rul. 68-123 (1968-1 CB 35), as clarified by Rev. Rul. 83-127 (1983-2 CB 25), generally excludes from gross income, and from wage withholding, income of an individual working under a vow of poverty for an employer controlled by a church and the individual is treated as working as an agent of the church, not as an employee. While these regulations do not provide an exclusion from the universal availability requirement for individuals working under a vow of poverty, individuals who work for an institution that is controlled by the church organization and whose compensation from the employer is not treated as wages for purposes of income tax withholding under Rev. Rul. 68-123 may be excluded from the section 403(b) plan without violating the universal availability requirement because they are not treated as employees of the entity maintaining the section 403(b) plan.
With respect to an exclusion relating to visiting professors, if an individual is rendering services to a university as a visiting professor, but continues to receive his or her compensation from his or her home university and elective deferrals on his or her behalf are made under the home university's section 403(b) plan, the final regulations do not, for purposes of section 403(b) and in any case in which such treatment is appropriate, preclude the plan maintained by the home university from treating the visiting professor as an eligible employee of the home university.
The discussion in this preamble under the heading “Applicability date” describes transition relief for any existing plan that excludes, in accordance with Notice 89-23, collective bargaining employees, visiting professors, government employees who make a one-time election, or employees who work under a vow of poverty.
These regulations retain, with certain modifications, the rules in the 2004 proposed regulations relating to the permitted investments for a section 403(b) contract. In general, a section 403(b) plan must be funded either by an annuity contract issued by an insurance company qualified to issue annuities in a State or a custodial account held by a bank (or a person who satisfies the conditions in section 401(f)(2)) where all of the amounts in the account are held for the exclusive benefit of plan participants or their beneficiaries in regulated investment companies (mutual funds) and certain other conditions are satisfied (including restrictions on distributions). Additional rules apply with respect to retirement income accounts for plans of a church or a convention or association of churches as discussed in the next section.
The final regulations, like the 2004 proposed regulations, include a number of special rules for church plans. Under section 403(b)(9), a retirement income account for employees of a church-related organization is treated as an annuity contract for purposes of section 403(b). Under these regulations, the rules for a retirement income account are based largely on the provisions of section 403(b)(9) and the legislative history of TEFRA. The regulations define a retirement income account as a defined contribution program established or maintained by a church-related organization under which (i) there is separate accounting for the retirement income account's interest in the underlying assets (namely, it must be possible at all times to determine the retirement income account's interest in the underlying assets and to distinguish that interest from any interest that is not part of the retirement income account), (ii) investment performance is based on gains and losses on those assets, and (iii) the assets held in the account cannot be used for, or diverted to, purposes other than for the exclusive benefit of plan participants or their beneficiaries. For this purpose, assets are treated as diverted to the employer if the employer borrows assets from the account. A retirement income account must be maintained pursuant to a program which is a plan and the plan document must state (or otherwise evidence in a similarly clear manner) the intent to constitute a retirement income account.
If any asset of a retirement income account is owned or used by a participant or beneficiary, then that ownership or use is treated as a distribution to that participant or beneficiary. The regulations also provide that a retirement income account that is treated as an annuity contract is not a custodial account (even if it is invested in stock of a regulated investment company).
A life annuity can generally only be provided from an individual account by the purchase of an insurance annuity contract. However, in light of the special rules applicable to church retirement income accounts, the final regulations, like the 2004 proposed regulations, permit a life annuity to be paid from such an account if certain conditions are satisfied. The conditions are that the distribution from the account has an actuarial present value, at the annuity starting date, that is equal to the participant's or beneficiary's accumulated benefit, based on reasonable actuarial assumptions, including assumptions regarding interest and mortality, and that the plan sponsor guarantee benefits in the event that a payment is due that exceeds the participant's or beneficiary's accumulated benefit.
The final regulations adopt the provisions of the 2004 proposed regulations permitting an employer to amend its section 403(b) plan to eliminate future contributions for existing participants, and allowing plan provisions that permit plan termination and a resulting distribution of accumulated benefits, with the associated right to roll over eligible rollover distributions to an eligible retirement plan, such as an individual retirement account or annuity (IRA). Comments on the rules in the 2004 proposed regulations regarding plan termination were favorable. In general, the distribution of accumulated benefits is permitted under these regulations only if the employer (taking into account all entities that are treated as a
These regulations include revisions to the 2004 proposed regulations that address the effects of a failure to satisfy section 403(b). Section 403(b)(5) provides for all of the contracts purchased for an employee by an employer to be treated as a single contract for purposes of section 403(b). Thus, if a contract fails to satisfy any of the section 403(b) requirements, then not only that contract but also any other contract purchased for that individual by that employer would fail to be a contract that qualifies for tax-deferral under section 403(b).
Under these regulations, as under the 2004 proposed regulations, if a contract includes any amount that fails to satisfy the requirements of these regulations, then, except for special rules relating to vesting conditions and excess contributions (under section 415 or section 402(g)), that contract and any other contract purchased for that individual by that employer does not constitute a section 403(b) contract. In addition, if a contract is not established pursuant to a written plan, then the contract does not satisfy section 403(b). Thus, if an employer fails to have a written plan, any contract purchased by that employer would not be a section 403(b) contract. Similarly, if an employer is not an eligible employer for purposes of section 403(b), none of the contracts purchased by that employer is a section 403(b) contract. If a plan fails to satisfy the nondiscrimination rules (including a failure to operate the plan in accordance with its coverage provisions or a failure to operate the plan in a manner that satisfies the nondiscrimination rules), none of the contracts issued under the plan would be section 403(b) contracts.
However, under these regulations, any operational failure, other than those described in the preceding paragraph, that is solely within a specific contract generally will not adversely affect the contracts issued to other employees that qualify in form and operation with section 403(b). Thus, for example, if an employee's elective deferrals under a contract, when aggregated with any other contract, plan, or arrangement of the employer for that employee during a calendar year, exceed the maximum deferral amount permitted under section 402(g)(1)(A) (as made applicable by section 403(b)(1)(E)), the failure would adversely affect the contracts issued to the employee by that employer, but would not adversely affect any other employee's contracts.
The final regulations, like the 2004 proposed regulations, include technical provisions addressing certain situations in which a separate account
These regulations also include final regulations relating to elective deferrals that are designated Roth contributions under a section 403(b) plan. These regulations, however, do not address the taxation of a distribution of designated Roth contributions from a section 403(b) plan. See § 1.402A-1 for those rules. The final regulations relating to elective deferrals under a section 403(b) plan that are designated Roth contributions are substantially unchanged from the proposed regulations that were issued in January of 2006 regarding designated Roth accounts under a section 403(b) plan.
The Treasury Department and the IRS consulted with the Department of Labor in connection with both the 2004 proposed regulations and these final regulations concerning the interaction between Title I of ERISA and section 403(b) of the Internal Revenue Code. In particular, the consultation focused on whether the requirements imposed on employers in these regulations would exceed the scope of the Department of Labor's safe harbor regulation at 29 CFR 2510.3-2(f) and result in all section 403(b) programs sponsored by tax-exempt employers (other than governmental plans and certain church plans) falling under the purview of ERISA.
According to the Department of Labor, Title I of ERISA generally applies to “any plan, fund, or program * * * established or maintained by an employer or by an employee organization, or by both, to the extent that * * * such plan, fund, or program * * * provides retirement income to employees, or * * * results in a deferral of income by employees for periods extending to the termination of covered employment or beyond.” ERISA section 3(2)(A). However, governmental plans and church plans are generally excluded from coverage under Title I of ERISA. ERISA section 4(b)(1) and (2). Therefore,
As described in the preamble to the 2004 proposed regulations, the Department of Labor advised the Treasury Department and the IRS that the proposed regulations did not appear to require, but left open the possibility that an employer may undertake, responsibilities in connection with a section 403(b) program that would exceed the limits in the safe harbor and constitute establishing and maintaining an ERISA-covered plan. Comments submitted on the proposal supported the continued availability of non-Title I section 403(b) programs to employees of tax-exempt employers and asked for additional guidance for employers who offer their employees access to such programs.
According to the Department of Labor, review of the final section 403(b) regulations has not led the Department of Labor to change its view on the principles that apply in determining whether any given section 403(b) program is covered by Title I of ERISA. Even though the differences between the tax rules for section 403(b) programs and those governing other ERISA-covered pension plans may have diminished as a result of the final section 403(b) regulations, the Department of Labor continues to be of the view that tax-exempt employers can comply with the requirements in the section 403(b) regulations and remain within the Department of Labor's safe harbor for tax-sheltered annuity programs funded solely by salary deferrals. The Department of Labor notes, however, that the new section 403(b) regulations offer employers considerable flexibility in shaping the extent and nature of their involvement. The question of whether any particular employer, in complying with the section 403(b) regulations, has established or maintained a plan covered under Title I of ERISA must be analyzed on a case-by-case basis applying the criteria set forth in 29 CFR § 2510.3-2(f) and section 3(2) of ERISA. To assist employers interested in offering their employees access to a tax sheltered annuity program that would not be an ERISA-covered plan, the Department of Labor is issuing, in conjunction with the final publication of this regulation, a Field Assistance Bulletin to provide additional guidance on the interaction of the safe harbor and the requirements in these final regulations. The Field Assistance Bulletin can be found at
The final regulations retain the basic rules in the 2004 proposed regulations regarding controlled groups for entities that are tax-exempt under section 501(a), but with a number of modifications to reflect the comments that were made. As in the 2004 proposed regulations, these rules are not limited to section 403(b) plans, but apply more broadly for purposes of determining when tax-exempt entities are treated as a single employer under section 414(b), (c), (m), and (o). Thus, for example, these rules apply for purposes of plans maintained by a tax-exempt entity that are intended to be qualified under section 401(a). These rules can apply to treat two section 501(c) organizations as a single employer, or a section 501(c) organization and a non-section 501(c) organization as a single employer, if the organizations are under common control. For a section 501(c)(3) organization that makes contributions to a section 403(b) plan, these rules would be generally relevant for purposes of the nondiscrimination requirements, as well as for the section 415 contribution limitations, the special section 403(b) catch-up contributions, and the section 401(a)(9) minimum distribution rules.
Under the rules in the 2004 proposed regulations, the employer for a plan maintained by a section 501(c) organization would include not only the organization whose employees participate in the plan, but also any other organization that is under common control with the tax-exempt organization. Under the 2004 proposed regulations, the existence of control would be determined based on the facts and circumstances. For this purpose, common control would exist between a tax-exempt organization and another organization if at least 80 percent of the directors or trustees of one organization were either representatives of, or directly or indirectly controlled by, the other organization.
Comments on the 2004 proposed regulations generally approved of the proposed controlled group rules, but some comments argued for expanding the category of entities that can use the permissive aggregation rules. These comments typically did not recommend an overall standard for when permissive aggregation should be permitted, but identified certain specific practices which would be facilitated by permissive aggregation. In response, these regulations authorize the IRS to issue published guidance permitting other types of combinations of entities that include tax-exempt entities to elect to be treated as under common control for one or more specified purposes. This authority is limited to situations in which there are substantial business reasons for maintaining each entity in a separate trust, corporation, or other form, and under which common control treatment would be consistent with the anti-abuse standards in the regulations. It is expected that this authority would not be exercised unless the IRS determines that the organizations are so integrated in their operations as to effectively constitute a single coordinated employer for purposes of sections 414(b), (c), (m), and (o), including common employee benefit plans.
A comment was also received stating that a legally required trusteeship for a labor union that has been imposed in order to correct corruption or financial malpractice
These controlled group rules for tax-exempt entities generally do not apply to certain church entities under section 3121(w)(3). These rules also do not apply to a State or local government or a federal government entity. Until further guidance is issued, church entities under section 3121(w)(3)(A) and (B) and State or local government public schools that sponsor section 403(b) plans can continue to rely on the rules in Notice 89-23 for determining the controlled group.
These regulations include several new cross-references to certain rules concerning the application of employment taxes. For example, the definition of an elective deferral at § 1.403(b)-2(a)(7) of these regulations refers to § 1.402(g)(3)-1 of these regulations, which in turn refers to section 3121(a)(5)(D). See § 31.3121(a)(5)-2T of the temporary regulations for additional guidance on section 3121(a)(5)(D) (defining salary reduction agreement for purposes of the Federal Insurance Contributions Act (FICA)).
As another example, § 1.403(b)-7(f) of these regulations generally references the special income tax withholding rules under section 3405 for purposes of income tax withholding on distributions from section 403(b) contracts and also references the special rules at § 1.72(p)-l, Q&A-15, and § 35.3405(c)-1, Q&A-11, relating to income tax withholding for loans deemed distributed from qualified employer plans, including section 403(b) contracts. However, the general income tax withholding rules apply for purposes of income tax withholding for annuity contracts or custodial accounts that are not section 403(b) contracts, as well as for cases in which an annuity contract or custodial account ceases to qualify as a section 403(b) contract. See section 3401 and §§ 1.83-8(a) and 35.3405-1T, Q&A-18.
Since the existing regulations were issued in 1964, a number of revenue rulings and other items of guidance under section 403(b) have become outdated as a result of changes in law. In addition, as a result of the inclusion in these regulations of much of the guidance that the IRS has issued regarding section 403(b), these regulations effectively supersede or substantially modify a number of revenue rulings and notices that have been issued under section 403(b). Thus, as indicated in the preamble to the 2004 proposed regulations, the IRS anticipates taking action in the future to obsolete many revenue rulings, notices, and other guidance under section 403(b).
However, the positions taken in certain rulings and other outstanding guidance are expected to be retained. For example, it is intended that the existing rules
The prior regulations under section 403(b) had included certain rules for determining the amount of the contributions made for an employee under a defined benefit plan, based on the employee's pension under the plan. These rules are generally no longer applicable for section 403(b) because the limitations on contributions to a section 403(b) contract under section 415(c) are no longer coordinated with accruals under a defined benefit plan.
These regulations are generally applicable for taxable years beginning after December 31, 2008. Thus, because individuals will almost uniformly be on a calendar taxable year, these regulations will generally apply on January 1, 2009. However, these regulations include a number of explicit transition rules.
For a section 403(b) plan maintained pursuant to one or more collective bargaining agreements that have been ratified and are in effect on July 26, 2007, the regulations do not apply until the earlier of: (1) The date on which the last of such collective bargaining agreements terminates (determined
There are also special applicability dates for several of the specific provisions in these regulations. First, special rules apply to plans which may have included one or more of the exclusions that Notice 89-23 permitted for the universal availability rule, but which are no longer permitted under these regulations. Specifically, a special rule applies if a plan has eligibility conditions for elective deferrals relating to employees who make a one-time election to participate in a governmental plan described in section 414(d) instead of a section 403(b) plan, professors who are providing services on a temporary basis to another school for up to one year and for whom section 403(b) contributions are being made at a rate no greater than the rate each such professor would receive under the section 403(b) plan of the original school, or employees who are affiliated with a religious order and who have taken a vow of poverty where the religious order provides for the support of such employees in their retirement. If, as permitted by Notice 89-23, a plan excludes any of these three classes of employees from eligibility to make elective deferrals on July 26, 2007, the plan is permitted to continue that exclusion until taxable years beginning on or after January 1, 2010. In addition, if a plan excludes employees covered by a collective bargaining agreement from eligibility to make elective deferrals on July 26, 2007, the plan is permitted to continue that exclusion until the later of (i) the first day of the first taxable year that begins after December 31, 2008, or (ii) the earlier of (I) the date that such agreement terminates (determined without regard to any extension thereof after July 26, 2007) or (II) July 26, 2010. In the case of a governmental plan (as defined in section 414(d)) for which the authority to amend the plan is held by a legislative body that meets in legislative session, the plan is permitted to continue the exclusion until the earlier of: (i) The close of the first regular legislative session of the legislative body with the authority to amend the plan that begins on or after January 1, 2009; or (ii) January 1, 2011.
These regulations (at § 1.403(b)-6(b)) also provide that a section 403(b) contract is permitted to distribute retirement benefits to the participant no earlier than the earliest of the participant's severance from employment or upon the prior occurrence of some event, subject to a number of exceptions (relating to distributions from custodial accounts, distributions attributable to section 403(b) elective deferrals, correction of excess deferrals, distributions at plan termination, and payment of after-tax employee contributions). This rule does not apply for contracts issued before January 1, 2009. In addition, in order to permit plans to comply with the rules relating to in-service distributions for contracts issued before January 1, 2009, the regulations provide that an amendment adopted before January 1, 2009, to comply with these rules does not violate the anti-cutback rules of section 204(g) of ERISA.
These regulations (at § 1.403(b)-8(c)(2)) also do not permit a life insurance contract, an endowment contract, a health or accident insurance contract, or a property, casualty, or liability insurance contract to constitute an annuity contract for purposes of section 403(b). This rule does not apply for contracts issued before September 24, 2007.
These regulations also include specific rules relating to contract exchanges that were permitted under Rev. Rul. 90-24. These new rules do not apply to contracts received in an exchange that occurred on or before September 24, 2007, assuming that the exchange (including the contract received in the exchange) satisfies applicable pre-existing legal requirements (including Rev. Rul. 90-24).
Finally, these regulations include special applicability date rules to coordinate with recently issued regulations under sections 402A and 415.
For periods following July 26, 2007 and before the applicable date, taxpayers can rely on these regulations, except that (1) such reliance must be on a consistent and reasonable basis and (2) the special rule at § 1.403(b)-10(a) of these regulations permitting accumulated benefits to be distributed on plan termination can be relied upon only if all of the contracts issued under the plan at that time satisfy all of the applicable requirements of these regulations (other than the requirement at § 1.403(b)-3(b)(3)(i) of these regulations that there be a written plan).
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant economic impact on a substantial number of small entities. This certification is based upon the determination that respondents will need to spend minimal time (an average of 4.1 hours per year) complying with the contract exchange requirements in these regulations, and small entities are generally expected to spend much less time. Thus, the cost of complying with this statutory requirement is small, even for small entities. Therefore, a Regulatory Flexibility Analysis is not required under the Regulatory Flexibility Act (5 U.S.C. chapter 6).
Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.
The principal authors of these regulations are R. Lisa Mojiri-Azad and John Tolleris, Office of the Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities), IRS. However, other personnel from the IRS and the Treasury Department participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Employment taxes, Income taxes, Penalties, Pensions, Railroad retirement, Reporting and recordkeeping requirements, Social security, Unemployment compensation.
Excise taxes, Pensions, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
26 U.S.C. 7805 * * *
Section 1.403(b)-6 also issued under 26 U.S.C. 403(b)(10). * * *
Section 1.414(c)-5 also issued under 26 U.S.C. 414(b), (c), and (o). * * *
(a) * * *
(2)
(i) The excess of—
(A) The amount determined as of the end of such taxable year in accordance with the formula described in § 1.403(b)-1(d)(4), as it appeared in the April 1, 2006, edition of 26 CFR Part 1; over
(B) The amount determined as of the end of the prior taxable year in accordance with the formula described in paragraph (a)(2)(i)(A) of this section; or
(ii) The amount determined under any other method utilizing recognized actuarial principles that are consistent with the provisions of the plan under which such contributions are made and the method adopted by the employer for funding the benefits under the plan.
(b) * * *
(2) * * *
(ii) If a separate account in a trust for the benefit of two or more employees is not maintained for each employee, the value of the employee's interest in such trust is determined in accordance with rules prescribed by the Commissioner under the authority in paragraph (a)(2) of this section.
(a)
(b)
(c)
A-1. A designated Roth account is a separate account under a qualified cash or deferred arrangement under a section 401(a) plan, or under a section 403(b) plan, to which designated Roth contributions are permitted to be made in lieu of elective contributions and that satisfies the requirements of § 1.401(k)-1(f) (in the case of a section 401(a) plan) or § 1.403(b)-3(c) (in the case of a section 403(b) plan).
This section lists the headings that appear in §§ 1.403(b)-1 through 1.403(b)-11.
(a) Application of definitions.
(b) Definitions.
(a) Exclusion for section 403(b) contracts.
(b) Application of requirements.
(c) Special rules for designated Roth section 403(b) contributions.
(d) Effect of failure.
(a) Treatment of contributions in excess of limitations.
(b) Maximum annual contribution.
(c) Section 403(b) elective deferrals.
(d) Employer contributions for former employees.
(e) Special rules for determining years of service.
(f) Excess contributions of deferrals.
(a) Nondiscrimination rules for contributions other than section 403(b) elective deferrals.
(b) Universal availability required for section 403(b) elective deferrals.
(c) Plan required.
(d) Church plans exception.
(e) Other rules.
(a) Distributions generally.
(b) Distributions from contracts other than custodial accounts or amounts attributable to section 403(b) elective deferrals.
(c) Distributions from custodial accounts that are not attributable to section 403(b) elective deferrals.
(d) Distribution of section 403(b) elective deferrals.
(e) Minimum required distributions for eligible plans.
(f) Loans.
(g) Death benefits and other incidental benefits.
(h) Special rule regarding severance from employment.
(a) General rules for when amounts are included in gross income.
(b) Rollovers to individual retirement arrangements and other eligible retirement plans.
(c) Special rules for certain corrective distributions.
(d) Amounts taxable under section 72(p)(1).
(e) Special rules relating to distributions from a designated Roth account.
(f) Certain rules relating to employment taxes.
(a) Investments.
(b) Contributions to the plan.
(c) Annuity contracts.
(d) Custodial accounts.
(e) Retirement income accounts.
(f) Combining assets.
(a) Retirement income accounts.
(b) Retirement income account defined.
(c) Special deduction rule for self-employed ministers.
(a) Plan terminations and frozen plans.
(b) Contract exchanges and plan-to-plan transfers.
(c) Qualified domestic relations orders.
(d) Rollovers to a section 403(b) contract.
(e) Deemed IRAs.
(f) Defined benefit plans.
(g) Other rules relating to section 501(c)(3) organizations.
(a) General rule.
(b) Collective bargaining agreements.
(c) Church conventions.
(d) Special rules for plans that exclude certain types of employees from elective deferrals.
(e) Special rules for plans that permit in-service distributions.
(f) Special rule for life insurance contracts.
(g) Special rule for contracts received in an exchange.
Section 403(b) and §§ 1.403(b)-2 through 1.403(b)-10 provide rules for the Federal income tax treatment of an annuity purchased for an employee by an employer that is either a tax-exempt entity under section 501(c)(3) (relating to certain religious, charitable, scientific, or other types of organizations) or a public school, or for a minister described in section 414(e)(5)(A). See section 403(a) (relating to qualified annuities) for rules regarding the taxation of an annuity purchased under a qualified annuity plan that meets the requirements of section 404(a)(2), and see section 403(c) (relating to nonqualified annuities) for rules regarding the taxation of other types of annuities.
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(8) (i)
(A) A State, but only with respect to an employee of the state performing services for a public school;
(B) A section 501(c)(3) organization with respect to any employee of the section 501(c)(3) organization;
(C) Any employer of a minister described in section 414(e)(5)(A), but only with respect to the minister; or
(D) A minister described in section 414(e)(5)(A), but only with respect to a retirement income account established for the minister.
(ii) An entity is not an eligible employer under paragraph (a)(8)(i)(A) of this section if it treats itself as not being a State for any other purpose of the Internal Revenue Code, and a subsidiary or other affiliate of an eligible employer is not an eligible employer under paragraph (a)(8)(i) of this section if the subsidiary or other affiliate is not an entity described in paragraph (a)(8)(i) of this section.
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(ii)
(17)
(ii)
(18)
(19)
(20)
(21)
(a)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(b)
(2)
(3)
(ii) The plan may allocate responsibility for performing administrative functions, including functions to comply with the requirements of section 403(b) and other tax requirements. Any such allocation must identify responsibility for compliance with the requirements of the Internal Revenue Code that apply on the basis of the aggregated contracts issued to a participant under a plan, including loans under section 72(p) and the conditions for obtaining a hardship withdrawal under § 1.403(b)-6. A plan is permitted to assign such responsibilities to parties other than the eligible employer, but not to participants (other than employees of the employer a substantial portion of whose duties are administration of the plan), and may incorporate by reference other documents, including the insurance policy or custodial account, which thereupon become part of the plan.
(iii) This paragraph (b)(3) applies to contributions to an annuity contract by a church only if the annuity is part of a retirement income account, as defined in § 1.403(b)-9.
(4)
(ii)
(c)
(2) A designated Roth contribution under a section 403(b) plan must satisfy the requirements applicable to section 403(b) elective deferrals. Thus, for example, designated Roth contributions under a section 403(b) plan must satisfy the requirements of § 1.403(b)-6(d). Similarly, a designated Roth account under a section 403(b) plan is subject to the rules of section 401(a)(9)(A) and (B) and § 1.403(b)-6(e).
(d)
(ii) In accordance with paragraph (b)(3) of this section, a failure to operate in accordance with the terms of a plan adversely affects all of the contracts issued by the employer to the employee or employees with respect to whom the operational failure occurred. Such a failure does not adversely affect any other contract if the failure is neither a failure to satisfy the nondiscrimination requirements of § 1.403(b)-5 (a nondiscrimination failure) nor a failure of the employer to be an eligible employer as defined in § 1.403(b)-2 (an employer eligibility failure). However, any failure that is not an operational failure adversely affects all contracts issued under the plan, including: a failure to have contracts issued pursuant to a written defined contribution plan
(iii) See other applicable Internal Revenue Code provisions for the treatment of a contract that is not a section 403(b) contract, such as sections 61, 83, 402(b), and 403(c). Thus, for example, section 403(c) (relating to nonqualified annuities) applies if any annuity contract issued by an insurance company fails to satisfy section 403(b), based on the value of the contract at the time of the failure. However, see paragraph (d)(2) of this section for special rules with respect to the nonforfeitability requirement of paragraph (a)(2) of this section.
(2)
(ii)
(B)
(a)
(b)
(2)
(c)
(2)
(ii)
(3)
(A) $3,000;
(B) The excess of—
(
(
(C) The excess of—
(
(
(ii) Qualified organization. (A) For purposes of this paragraph (c)(3),
(
(
(
(
(
(B) All entities that are in a church-related organization or an organization controlled by a church-related organization under section 414(e)(3)(B)(ii) are treated as a single qualified organization (so that years of service and any special section 403(b) catch-up elective deferrals previously made for a qualified employee for a church or other entity within a church-related organization or an organization controlled by the church-related organization are taken into account for purposes of applying this paragraph (c)(3) to the employee with respect to any other entity within the same church-related organization or organization controlled by a church-related organization).
(C) For purposes of this paragraph (c)(3)(ii), a
(
(
(
(
(iii)
(iv)
(4)
(5)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(ii)
(d)
(2)
(i)
(ii)
(i)
(ii)
(i)
(A) The excess of the individual's includible compensation for that year over the contributions previously made for the individual for that year; or
(B) The total contributions that would have been made on the individual's behalf thereafter if he or she had survived to the end of the 5-year period.
(ii) Individual C's annual includible compensation is $72,000 (so that C's monthly includible compensation is $6,000). A $600 contribution is made for C for January of the first taxable year following retirement (10% of individual C's monthly includible compensation of $6,000). Individual C dies during February of that year. The university makes a contribution for individual C for February equal to $11,400 (C's monthly includible compensation for January and February, reduced by $600).
(iii)
(3)
(e)
(2)
(3)
(ii)
(4)
(5)
(ii) In determining the fraction that represents the fractional year of service for an individual employed full time for part of an annual work period, the numerator is the period of time (such as weeks or months) during which the individual is a full-time employee during that annual work period, and the denominator is the period of time that is the annual work period.
(iii) In determining the fraction that represents the fractional year of service of an individual who is employed part time for the entire annual work period, the numerator is the amount of work performed by the individual, and the denominator is the amount of work normally required of individuals who perform similar services and who are employed full time for the entire annual work period.
(iv) In determining the fraction representing the fractional year of service of an individual who is employed part time for part of an annual work period, the fractional year of service that would apply if the individual were a part-time employee for a full annual work period is multiplied by the fractional year of service that would apply if the individual were a full-time employee for the part of an annual work period.
(6)
(7)
(8)
(9)
(i)
(ii)
(i)
(ii)
(A) The fractional year of service if H were a part-time employee for a full year is 3/9 (number of hours employed divided by the usual number of hours of work required for that position).
(B) The fractional year of service if H were a full-time employee for half of a year is
(C) These fractions are multiplied to obtain the fractional year of service:
(f)
(2)
(3)
(4)
(5)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(a)
(i) Section 401(a)(4) (relating to nondiscrimination in contributions and benefits), taking section 401(a)(5) into account.
(ii) Section 401(a)(17) (limiting the amount of compensation that can be taken into account).
(iii) Section 401(m) (relating to matching and after-tax employee contributions).
(iv) Section 410(b) (relating to minimum coverage).
(2)
(3)
(4)
(5)
(b)
(2)
(3)
(ii) For purposes of this paragraph (b)(3), an employer that historically has treated one or more of its various geographically distinct units as separate for employee benefit purposes may treat each unit as a separate organization if the unit is operated independently on a day-to-day basis. Units are not geographically distinct if such units are located within the same Standard Metropolitan Statistical Area (SMSA).
(4)
(ii)
(A) Employees who are eligible under another section 403(b) plan, or a section 457(b) eligible governmental plan, of the employer which permits an amount to be contributed or deferred at the election of the employee.
(B) Employees who are eligible to make a cash or deferred election (as defined at § 1.401(k)-1(a)(3)) under a section 401(k) plan of the employer.
(C) Employees who are non-resident aliens described in section 410(b)(3)(C).
(D) Subject to the conditions applicable under section 410(b)(4) (including section 410(b)(4)(B) permitting separate testing for employees not meeting minimum age and service requirements), employees who are students performing services described in section 3121(b)(10).
(E) Subject to the conditions applicable under section 410(b)(4), employees who normally work fewer than 20 hours per week (or such lower number of hours per week as may be set forth in the plan).
(iii)
(B) For purposes of paragraph (b)(4)(ii)(E) of this section, an employee normally works fewer than 20 hours per week if and only if—
(
(
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(ii)
(2)
(3)
(i) Any date permitted under paragraph (d)(1) of this section; and
(ii) Any date permitted under paragraph (b) or (c) of this section with respect to contributions that are not section 403(b) elective deferrals (whichever applies to the contributions that are not section 403(b) elective deferrals).
(e)
(2)
(3)
(4)
(5)
(6)
(ii) The issuer or custodian of the section 403(b) contract must keep records that enable it to identify the pre-’87 account balance and subsequent changes as set forth in paragraph (d)(6)(iii) of this section and provide such information upon request to the relevant employee or beneficiaries with respect to the contract. If the issuer or custodian does not keep such records, the entire account balance is treated as subject to section 401(a)(9).
(iii) In applying the distribution rules in section 401(a)(9), only the post-’86 account balance is used to calculate the required minimum distribution for a calendar year. The amount of any distribution from a contract is treated as being paid from the post-’86 account balance to the extent the distribution is required to satisfy the minimum
(iv) If an amount is distributed from the pre-’87 account balance and rolled over to another section 403(b) contract, the amount is treated as part of the post-’86 account balance in that second contract. However, if the pre-’87 account balance under a section 403(b) contract is directly transferred to another section 403(b) contract (as permitted under § 1.403(b)-10(b)), the amount transferred retains its character as a pre-’87 account balance, provided the issuer of the transferee contract satisfies the recordkeeping requirements of paragraph (e)(6)(ii) of this section.
(v) The distinction between the pre-’87 account balance and the post-’86 account balance provided for under this paragraph (e)(6) of this section has no relevance for purposes of determining the portion of a distribution that is includible in income under section 72.
(vi) The pre-’87 account balance must be distributed in accordance with the incidental benefit requirement of § 1.401-1(b)(1)(i). Distributions attributable to the pre-’87 account balance are treated as satisfying this requirement if all distributions from the section 403(b) contract (including distributions attributable to the post-’86 account balance) satisfy the requirements of § 1.401-1(b)(1)(i) without regard to this section, and distributions attributable to the post-’86 account balance satisfy the rules of this paragraph (e) (without regard to this paragraph (e)(6)). Distributions attributable to the pre-’87 account balance are treated as satisfying the incidental benefit requirement if all distributions from the section 403(b) contract (including distributions attributable to both the pre-’87 account balance and the post-’86 account balance) satisfy the rules of this paragraph (e) (without regard to this paragraph (e)(6)).
(7)
(f)
(g)
(h)
(i)
(a)
(b)
(2)
(3)
(4)
(5)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(c)
(2)
(3)
(i) Benefits under the contract are provided from a separately funded retirement reserve that is subject to supervision of the State insurance department; or
(ii) Benefits under the contract are provided from a fund that is separate from the fund used to provide statutory benefits payable under a state retirement system and that is part of a State teachers retirement system (including a state university retirement system) to purchase benefits that are unrelated to the basic benefits provided under the retirement system, and the death benefit provided under the contract does not at any time exceed the larger of the reserve or the contribution made for the employee.
(d)
(2)
(i) All of the amounts held in the account are invested in stock of a regulated investment company (as defined in section 851(a) relating to mutual funds);
(ii) The requirements of § 1.403(b)-6(c) (imposing restrictions on distributions with respect to a custodial account) are satisfied with respect to the amounts held in the account;
(iii) The assets held in the account cannot be used for, or diverted to, purposes other than for the exclusive benefit of plan participants or their beneficiaries (for which purpose, assets are treated as diverted to the employer if the employer borrows assets from the account); and
(iv) The account is not part of a retirement income account.
(3)
(4)
(e)
(f)
(a)
(2)
(A) There is separate accounting for the retirement income account's interest in the underlying assets (namely, there must be sufficient separate accounting in order for it to be possible at all times to determine the retirement income account's interest in the underlying assets and to distinguish that interest from any interest that is not part of the retirement income account);
(B) Investment performance is based on gains and losses on those assets; and
(C) The assets held in the account cannot be used for, or diverted to, purposes other than for the exclusive benefit of plan participants or their beneficiaries (and for this purpose, assets are treated as diverted to the employer if there is a loan or other extension of credit from assets in the account to the employer).
(ii)
(3)
(4)
(5)
(i) The amount of the distribution form has an actuarial present value, at the annuity starting date, equal to the participant's or beneficiary's accumulated benefit, based on reasonable actuarial assumptions, including regarding interest and mortality; and
(ii) The plan sponsor guarantees benefits in the event that a payment is due that exceeds the participant's or beneficiary's accumulated benefit.
(6)
(7)
(b)
(c)
(a)
(2)
(b)
(ii)
(2)
(A) The plan under which the contract is issued provides for the exchange.
(B) The participant or beneficiary has an accumulated benefit immediately after the exchange that is at least equal to the accumulated benefit of that participant or beneficiary immediately before the exchange (taking into account the accumulated benefit of that participant or beneficiary under both section 403(b) contracts immediately before the exchange).
(C) The other contract is subject to distribution restrictions with respect to the participant that are not less stringent than those imposed on the contract being exchanged, and the employer enters into an agreement with the issuer of the other contract under which the employer and the issuer will from time to time in the future provide each other with the following information:
(
(
(ii)
(iii)
(3)
(A) In the case of a transfer for a participant, the participant is an employee or former employee of the employer (or the business of the employer) for the receiving plan.
(B) In the case of a transfer for a beneficiary of a deceased participant, the participant was an employee or former employee of the employer (or business of the employer) for the receiving plan.
(C) The transferor plan provides for transfers.
(D) The receiving plan provides for the receipt of transfers.
(E) The participant or beneficiary whose assets are being transferred has an accumulated benefit immediately after the transfer that is at least equal to the accumulated benefit of that participant or beneficiary immediately before the transfer.
(F) The receiving plan provides that, to the extent any amount transferred is subject to any distribution restrictions under § 1.403(b)-6, the receiving plan imposes restrictions on distributions to the participant or beneficiary whose assets are being transferred that are not less stringent than those imposed on the transferor plan.
(G) If a plan-to-plan transfer does not constitute a complete transfer of the participant's or beneficiary's interest in the section 403(b) plan, the transferee plan treats the amount transferred as a continuation of a pro rata portion of the participant's or beneficiary's interest in the section 403(b) plan (for example, a pro rata portion of the participant's or beneficiary's interest in any after-tax employee contributions).
(ii)
(4)
(ii)
(A) For the purchase of permissive service credit (as defined in section 415(n)(3)(A)) under the receiving defined benefit plan; or
(B) A repayment to which section 415 does not apply by reason of section 415(k)(3).
(c)
(d)
(2)
(e)
(f)
(2)
(g)
(a)
(b)
(1) The date on which the last of the collective bargaining agreements terminates (determined without regard to any extension thereof after July 26, 2007); or
(2) July 26, 2010.
(c)
(2) In the case of a loan or other extension of credit to the employer that was entered into under a retirement income account before July 26, 2007 the plan does not fail to satisfy § 1.403(b)-9(a)(2)(C) on account of the loan or other extension of credit if the plan takes reasonable steps to eliminate the loan or other extension of credit to the employer before the applicable date for § 1.403(b)-9(a)(2) or as promptly as practical thereafter (including taking steps after July 26, 2007 and before the applicable date).
(d)
(i) Employees who make a one-time election to participate in a governmental plan described in section 414(d) that is not a section 403(b) plan.
(ii) Professors who are providing services on a temporary basis to another educational organization (as defined under section 170(b)(1)(A)(ii)) for up to one year and for whom section 403(b) contributions are being made at a rate no greater than the rate each such professor would receive under the section 403(b) plan of the original educational organization.
(iii) Employees who are affiliated with a religious order and who have taken a vow of poverty where the religious order provides for the support of such employees in their retirement from eligibility to make elective deferrals.
(2) If, on July 26, 2007, a plan excludes employees who are covered by a collective bargaining agreement from eligibility to make elective deferrals, the plan does not fail to satisfy § 1.403(b)-5(b) (relating to universal availability) as
(i) The first day of the first taxable year that begins after December 31, 2008; or
(ii) The earlier of—
(A) The date on which the related collective bargaining agreement terminates (determined without regard to any extension thereof after July 26, 2007); or
(B) July 26, 2010.
(3) In the case of a governmental plan (as defined in section 414(d)) for which the authority to amend the plan is held by a legislative body that meets in legislative session, the plan does not fail to satisfy § 1.403(b)-5(b) as a result of any exclusion in paragraph (d)(1)(i), (d)(1)(ii),(d)(1)(iii), or (d)(2) of this section before the earlier of —
(i) The close of the first regular legislative session of the legislative body with the authority to amend the plan that begins on or after January 1, 2009; or
(ii) January 1, 2011.
(e)
(2) Any amendment to comply with the requirements of § 1.403(b)-6 (disregarding paragraph (e)(1) of this section) that is adopted before January 1, 2009, or such later date as may be permitted under guidance issued by the Commissioner in revenue rulings, notices, or other guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(
(f)
(g)
(h)
(i)
(a)
(b)
(c)
(2)
(A) There are substantial business reasons for maintaining each entity in a separate trust, corporation, or other form; and
(B) Such treatment would be consistent with the anti-abuse standards in paragraph (f) of this section.
(ii) For example, this authority might be exercised in any situation in which
(d)
(e)
(f)
(g)
(i)
(ii)
(i)
(ii)
(i)
(ii)
(h)
26 U.S.C. 7805 * * *
26 U.S.C. 7805 * * *
26 U.S.C. 7805.
(b) * * *
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Advance notice of proposed rulemaking and notice of public meeting.
The Energy Policy and Conservation Act (EPCA) authorizes the Department of Energy (DOE) to establish energy conservation standards for various consumer products and commercial and industrial equipment, including commercial ice-cream freezers; self-contained commercial refrigerators, commercial freezers, and commercial refrigerator-freezers without doors; and remote condensing commercial refrigerators, commercial freezers, and commercial refrigerator-freezers, if DOE determines that energy conservation standards would be technologically feasible and economically justified, and would result in significant energy savings. DOE publishes this Advance Notice of Proposed Rulemaking (ANOPR) to consider establishing energy conservation standards for the categories of commercial refrigeration equipment mentioned above, and to announce a public meeting to receive comments on a variety of issues.
DOE will hold a public meeting on August 23, 2007, from 9 a.m. to 5 p.m. in Washington, DC. DOE must receive requests to speak at the public meeting no later than 4 p.m., August 3, 2007. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting no later than 4 p.m., August 9, 2007. DOE will accept comments, data, and information regarding this ANOPR no later than October 9, 2007. See section IV, “Public Participation,” of this ANOPR for details.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 1E-245, 1000 Independence Avenue, SW., Washington, DC. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures, requiring a 30-day advance notice. If you are a foreign national and wish to participate in the public meeting, please inform DOE of this fact as soon as possible by contacting Ms. Brenda Edwards-Jones at (202) 586-2945 so that the necessary procedures can be completed.
You may submit comments identified by docket number EE-2006-STD-0126 and/or Regulatory Information Number (RIN) 1904-AB59 using any of the following methods:
•
•
•
•
For detailed instructions on submitting comments and additional information on the rulemaking process, see section IV, “Public Participation,” of this document.
Mr. Charles Llenza, U.S. Department of Energy, Building Technologies Program, EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-2192. E-mail:
The purpose of this Advance Notice of Proposed Rulemaking (ANOPR) is to provide interested persons with an opportunity to comment on:
1. The equipment classes that the Department of Energy (DOE) is planning to analyze in this rulemaking;
2. The analytical framework, models, and tools (e.g., life-cycle cost (LCC) and national energy savings (NES) spreadsheets) that DOE has been using to perform analyses of the impacts of energy conservation standards for commercial ice-cream freezers; self-contained commercial refrigerators, commercial freezers, and commercial refrigerator-freezers without doors; and remote condensing commercial refrigerators, commercial freezers, and commercial refrigerator-freezers;
3. The results of the preliminary engineering analyses, the markups analysis to determine equipment price, the energy use characterization, the LCC and payback period (PBP) analyses, and the NES and national impact analyses as presented in the
4. The candidate energy conservation standard levels that DOE has developed from these analyses.
The Energy Policy and Conservation Act, as amended, (EPCA) authorizes DOE to establish minimum energy conservation standards for various consumer products and commercial and industrial equipment, including commercial refrigeration equipment, which are the subject of this ANOPR. (42 U.S.C. 6291
The engineering analysis establishes the relationship between the cost and efficiency of commercial refrigeration equipment. This relationship serves as the basis for cost and benefit calculations for individual commercial consumers, manufacturers, and the Nation. The engineering analysis identifies representative baseline equipment, which is the starting point for analyzing technologies that provide energy efficiency improvements. Baseline equipment here refers to a model or models having features and technologies typically found in equipment currently offered for sale. The baseline model in each equipment class represents the characteristics of equipment in that class. After identifying baseline models, DOE estimated manufacturer selling prices (MSPs) through an analysis of
The engineering analysis uses 4 industry-supplied cost-efficiency curves, which are based on an efficiency-level approach, and 15 cost-efficiency curves derived from DOE analysis, which are based on a design-options approach.
DOE determines customer prices for commercial refrigeration equipment from MSP and equipment price markups using industry balance sheet data and U.S. Census Bureau data. To determine price markups, DOE identifies distribution channels for equipment sales and determines the existence and amounts of markups within each distribution channel. For each distribution channel, DOE distinguishes between “baseline markups” applied to the MSP for baseline equipment and “incremental markups” applied to the incremental increase in MSP for higher efficiency equipment. Overall baseline and overall incremental markups are calculated separately based on the product of all baseline markups at each step within a distribution channel or the product of all incremental markups at each step within a distribution channel, respectively. The combination of the overall baseline markup applied to the baseline MSP and the incremental markups applied to the incremental increase in MSP for higher efficiency equipment, including sales tax, determines the final customer price.
The energy use characterization provides estimates of annual energy consumption for commercial refrigeration equipment, which are used in the subsequent LCC and PBP analyses and the national impact analysis (NIA). DOE developed energy consumption estimates for the 15 classes of equipment analyzed in the engineering analysis. DOE validated these estimates with simulation modeling of energy consumption on an annual basis for selected equipment classes and efficiency levels.
The LCC and PBP analyses determine the economic impact of potential standards on individual commercial consumers. The LCC is the total consumer expense for a piece of equipment over the life of the equipment. The LCC analysis compares the LCCs of equipment designed to meet more stringent energy conservation standards with the LCC of the equipment likely to be installed in the absence of standards. DOE determines LCCs by considering: (1) Total installed cost to the purchaser (which consists of MSP, sales taxes, distribution channel markups, and installation cost), (2) the operating expenses of the equipment (energy cost and maintenance and repair cost), (3) equipment lifetime, and (4) a discount rate that reflects the real consumer cost of capital and puts the LCC in present value terms. The PBP represents the number of years needed to recover the increase in purchase price (including installation cost) of more efficient equipment through savings in the operating cost of the equipment. The PBP is the increase in total installed cost due to increased efficiency divided by the (undiscounted) decrease in annual operating cost from increased efficiency.
The NIA estimates the NES, and the NPV of total national customer costs and savings, expected to result from new standards at specific efficiency levels. DOE calculated the NES and NPV for each standard level for commercial refrigeration equipment as the difference between a base case forecast (without new standards) and the standards case forecast (with new standards). For the NES, DOE determined national annual energy consumption by multiplying the number of commercial refrigeration equipment units in use (by vintage) by the average unit energy consumption (also by vintage). DOE then computed cumulative energy savings, which is the sum of each annual NES determined from the year 2012 to 2042. The national NPV is the sum over time of the discounted net savings each year, which consists of the difference between total operating cost savings and the increase in total installed costs. Critical inputs to the NIA include shipments projections, rates at which users retire equipment (based on estimated equipment lifetimes), and estimates of changes in shipments and retirement rates in response to changes in equipment costs due to new standards.
Title III of EPCA, 42 U.S.C. 6311-6317, as amended by the Energy Policy Act of 2005 (EPACT 2005), Pub. L. 109-58, provides an energy conservation program for certain commercial and industrial equipment. Further, EPACT 2005 prescribes new or amended energy conservation standards and test procedures, and directs DOE to undertake rulemakings to promulgate such requirements. In particular, section 136(c) of EPACT 2005 directs DOE to prescribe energy conservation standards for commercial refrigeration equipment. (42 U.S.C. 6313(c)(4)(A))
Before DOE prescribes any such standards, however, it must first solicit comments on proposed standards. Moreover, DOE must design each new standard for commercial refrigeration equipment to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified, and will result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A), (o)(3)) To determine whether a standard is economically justified, DOE must, after receiving comments on the proposed standard, determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, considering the following seven factors:
(1) The economic impact of the standard on manufacturers and consumers of each of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared with any increase in the price, initial charges, or maintenance expenses for the covered products which are likely to result from the imposition of the standard;
(3) The total projected amount of energy savings likely to result directly from the imposition of the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the imposition of the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to
(6) The need for national energy conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)).
Other statutory requirements are set forth in 42 U.S.C. 6295 (o)(1)-(2)(A), (2)(B)(ii)-(iii), and (3)-(4), and 42 U.S.C. 6316(e).
Section 136(c) of EPACT 2005 amended section 342 of EPCA, in part, by adding new subsection 342(c)(4)(A), (42 U.S.C. 6313(c)(4)(A)) which directs the Secretary to issue, by rule, no later than January 1, 2009, energy conservation standards for the following equipment, manufactured on or after January 1, 2012: commercial ice-cream freezers; self-contained commercial refrigerators, commercial freezers, and commercial refrigerator-freezers without doors; and remote condensing commercial refrigerators, commercial freezers, and commercial refrigerator-freezers. This equipment, which has never before been regulated at the Federal level, is the subject of this rulemaking.
Section 136(a)(3) of EPACT 2005 amended section 340 of EPCA, in part by adding the definitions for “commercial refrigerator, freezer, and refrigerator-freezer,” “holding temperature application,” “pull-down temperature application,” “remote condensing unit,” and “self-contained condensing unit.”
(i) Is not a consumer product (as defined in section 321 of EPCA [42 U.S.C. 6291(1)]);
(ii) Is not designed and marketed exclusively for medical, scientific, or research purposes;
(iii) Operates at a chilled, frozen, combination chilled and frozen, or variable temperature;
(iv) Displays or stores merchandise and other perishable materials horizontally, semivertically, or vertically;
(v) Has transparent or solid doors, sliding or hinged doors, a combination of hinged, sliding, transparent, or solid doors, or no doors;
(vi) Is designed for pull-down temperature applications or holding temperature applications; and
(vii) Is connected to a self-contained condensing unit or to a remote condensing unit.” (42 U.S.C. 6311(9)(A)).
“(B) The term ‘holding temperature application’ means a use of commercial refrigeration equipment other than a pull-down temperature application, except a blast chiller or freezer.” (42 U.S.C. 6311(9)(B)).
“(D) The term ‘pull-down temperature application’ means a commercial refrigerator with doors that, when fully loaded with 12 ounce beverage cans at 90 degrees Fahrenheit (F), can cool those beverages to an average stable temperature of 38 degrees F in 12 hours or less.” (42 U.S.C. 6311(9)(D)).
“(E) The term ‘remote condensing unit’ means a factory-made assembly of refrigerating components designed to compress and liquefy a specific refrigerant that is remotely located from the refrigerated equipment and consists of 1 or more refrigerant compressors, refrigerant condensers, condenser fans and motors, and factory supplied accessories.” (42 U.S.C. 6311(9)(E)).
“(F) The term ‘self-contained condensing unit’ means a factory-made assembly of refrigerating components designed to compress and liquefy a specific refrigerant that is an integral part of the refrigerated equipment and consists of 1 or more refrigerant compressors, refrigerant condensers, condenser fans and motors, and factory supplied accessories.” (42 U.S.C. 6311(9)(F)).
EPCA does not explicitly define the terms “self-contained commercial refrigerator, freezer, or refrigerator-freezer” and “remote condensing commercial refrigerator, freezer, or refrigerator-freezer,” which delineate two of the categories of equipment covered by this rulemaking. DOE construes these two terms to mean “commercial refrigerator, freezer, or refrigerator-freezer that is connected to a self-contained condensing unit” and “commercial refrigerator, freezer, or refrigerator-freezer that is connected to a remote condensing unit,” respectively.
On April 25, 2006, DOE published in the
Statements received after publication of the Framework Document and at the May 16, 2006, Framework public meeting helped identify issues involved in this rulemaking and provided information that has contributed to DOE's proposed resolution of these issues. Many of the statements are quoted or summarized in this ANOPR. A parenthetical reference at the end of a quotation or passage provides the location index in the public record.
Table I.2 sets forth a list of the analyses DOE has conducted and intends to conduct in its evaluation of standards for commercial refrigeration equipment. Until recently, DOE performed the manufacturer impact analysis (MIA) in its entirety between the ANOPR and notice of proposed rulemaking (NOPR) during energy conservation standards rulemakings. As noted in the table, DOE has performed a preliminary MIA for this ANOPR. DOE believes this change will improve the rulemaking process.
The analyses in Table I.2 include the development of economic models and analytical tools. If timely new data, models, or tools that enhance the development of standards become available, DOE will incorporate them into this rulemaking.
During the Framework public meeting, the Air-Conditioning and Refrigeration Institute (ARI) stated that it interpreted EPACT 2005 as authorizing DOE to conduct a rulemaking for commercial refrigeration equipment, and to exempt certain categories from the standards DOE adopts. (Public Meeting Transcript, No. 3.4 at p. 80)
DOE is evaluating all commercial refrigeration equipment—
Southern Company Services (Southern Company) and Edison Electric Institute (EEI) believe that the standards for commercial refrigeration equipment should be a “50-state” rule without exemptions from Federal preemption. They claim that exemptions would complicate the regulation of this equipment and increase costs to both manufacturers and consumers. (Southern Company, No. 6 at p. 1 and EEI, No. 8 at p. 1)
DOE fully intends that any standards it adopts in this rulemaking will apply uniformly in all of the States. In addition, any such Federal standards would, on the date of publication of the final rule, preempt any State standards that apply to the equipment covered by the Federal standards. In the event any State or local standard is issued before the date of publication of the final rule by the Secretary, that State or local standard shall not be preempted until the Federal standards take effect. (42 U.S.C. 6297 and 6316(e)(3)(A)) However, EPCA allows the States to petition DOE for waivers of preemption with regard to specific State standards, and DOE to grant such waiver applications if the statutory criteria are met. (42 U.S.C. 6297(d)) DOE does not have the authority to preclude States from seeking waivers or to decree in advance that it will not grant them, either generally or for any particular type of equipment.
ARI stated that it strongly recommends that DOE focus its rulemaking efforts on the commercial refrigeration equipment classes with the highest energy savings potential, and not spend its scarce resources establishing standards for equipment with limited shipment volume and/or energy consumption. (ARI, No. 7 at p. 1)
Because of the large number of equipment classes included in this rulemaking, for the ANOPR phase of the rulemaking DOE has focused on conducting a thorough examination of the equipment classes with the greatest energy savings potential. To determine which equipment classes have the greatest energy savings potential, DOE relied on industry-supplied shipment data and addressed equipment classes with the highest shipment values first. To address low-shipment equipment classes, DOE could, for the NOPR phase of the rulemaking, either conduct a full technical analysis of these equipment classes, or develop correlations to extend analyses or standard levels. DOE explored the approach of developing correlations by conducting a “focused
A test procedure outlines the method by which manufacturers will determine the efficiency of their commercial refrigeration equipment, and thereby assess compliance with an energy conservation standard.
Section 136(f)(1)(B) of EPACT 2005 amended section 343 of EPCA (42 U.S.C. 6314) by adding new subsections 343(a)(6)(A)-(D) (42 U.S.C. 6314(a)(6)(A)-(D)), which direct the Secretary to develop test procedures for commercial refrigeration equipment. On December 8, 2006, DOE published a final rule (the December 2006 final rule) in which it adopted American National Standards Institute (ANSI)/ARI Standard 1200-2006,
As mentioned above, on April 25, 2006, DOE published a Framework Document that describes the procedural and analytical approaches to evaluate energy conservation standards for commercial refrigeration equipment and presented this analytical framework to stakeholders during the Framework public meeting held on May 16, 2006. During the Framework public meeting, the Food Products Association (FPA) suggested, in lieu of climate-adjusted standards, climate conditions be part of the test method. FPA stated that DOE should specify the range of conditions that are expected for efficiency testing, and pointed out that most grocery stores across the country operate in a 65 °F to 70 °F range. (Public Meeting Transcript, No. 3.4 at pp. 158-159) ANSI/ARI Standard 1200-2006 requires that testing be in accordance with ASHRAE Standard 72-2005, which requires ambient conditions during testing of 75.2 °F (±1.8 °F) for dry bulb temperature and 64.4 °F (±1.8 °F) for wet bulb temperature. Although this is not the range recommended by FPA, it is close to FPA's recommended range, these temperatures have been widely used for testing commercial refrigeration equipment, and they provide ambient test temperatures that are typical of the conditions in which this equipment generally operates. Therefore, DOE's test procedure for commercial refrigeration equipment does include ambient rating conditions that represent normal operation conditions for commercial refrigeration equipment.
During the Framework public meeting and Framework comment period, DOE received comments on the inclusion of “application temperatures” for commercial refrigeration equipment, which are rating temperatures other than the standard rating temperatures prescribed by DOE's test procedures (38 °F for commercial refrigerators, 0 °F for commercial freezers, and −15 °F for commercial ice-cream freezers). Hill Phoenix stated that manufacturers of commercial refrigeration equipment occasionally produce a piece of equipment (usually at the customer's request) that is designed to operate at a temperature significantly different from one of the three standard temperatures. (Public Meeting Transcript, No. 3.4 at pp. 74-76) ARI commented that DOE should analyze the shipment data and determine whether it would be worth regulating equipment that operates at application temperatures if shipments for these units are very low. (Public Meeting Transcript, No. 3.4 at p. 79) ARI also asserted that allowing for an application temperature category is essential because operating temperature plays a key role in equipment energy consumption. (ARI, No. 7 at p. 4) The Joint Comment pointed out that the application temperature category should be reserved for equipment that cannot operate at 0 °F or at 38 °F, that DOE should not regulate equipment that has a small shipments volume, and that appropriate Federal standards and rating temperatures should be developed if shipments are large. (Joint Comment, No. 9 at p. 3)
DOE analyzed the shipments data provided by ARI during the Framework comment period. Excluding equipment for which EPACT 2005 amended EPCA to set standards (self-contained commercial refrigerators and commercial freezers with doors), there were 170,949 units of remote condensing commercial refrigerators and commercial freezers, self-contained commercial refrigerators and commercial freezers without doors, and commercial ice-cream freezers shipped in 2005. Shipments of commercial refrigerator-freezers were not reported, but are considered to be very small. Of the total shipments (both self-contained and remote condensing), only 1.7 percent were equipment that operate at 45 °F, 20 °F, 10 °F, or −30 °F (application temperatures), and 98.3 percent were equipment that operate at 38 °F, 0 °F, or −15 °F. By far, the application temperature with the largest number of units shipped is the 45 °F category (typically “wine chillers”), and these were predominately remote condensing equipment. There were 1,834 units of remote condensing wine chillers shipped in 2005. Comparatively, in 2005 there were 85,001 units of remote condensing refrigerators that operate at 38 °F.
As stated above, DOE’s test procedure for commercial refrigeration equipment requires that all equipment, including equipment designed to operate at application temperatures, be tested at one of the three rating temperatures: 38 °F for refrigerators, 0 °F for freezers, and −15 °F for ice-cream freezers. Given the relatively low shipment volumes of equipment that operates at application temperatures, as well as DOE’s understanding that some of this equipment already can operate and be tested at one of the standard rating temperatures and that manufacturers might be able to redesign other equipment in relatively minor ways to have these capabilities, DOE believes this requirement will not place an
This section addresses the analyses DOE has performed and intends to perform for this rulemaking. A separate subsection addresses each analysis, and contains a general introduction that describes the analysis and a discussion of comments received from interested parties.
When DOE begins a standards rulemaking, it develops information that provides an overall picture of the market for the equipment concerned, including the nature of the equipment, the industry structure, and the market characteristics for the equipment. This activity consists of both quantitative and qualitative efforts based primarily on publicly available information. The subjects addressed in the market and technology assessment for this rulemaking include definitions, equipment classes, manufacturers and market shares, shipments of covered equipment, regulatory and non-regulatory programs, and technologies that could be used to improve the efficiency of covered commercial refrigeration equipment. This information serves as resource material for use throughout the rulemaking.
Section 136(c) of EPACT 2005 amended section 342 of EPCA to include new subsection (c)(4)(A), which mandates that DOE issue standards for three categories of commercial refrigerators, commercial freezers, and commercial refrigerator-freezers.
During the Framework comment period, ARI stated that the ANSI/ARI Standard 1200-2006 test procedure specifically excludes ice-cream “dipping cabinets,” but recommended that DOE include this equipment under this rulemaking as commercial freezers. (ARI, No. 7 at p. 3) ARI also appeared to suggest, however, that this and certain other equipment excluded from ANSI/ARI Standard 1200-2006, such as floral merchandisers, are excluded from coverage under EPCA because they are not considered commercial display merchandisers or storage cabinets. (ARI, No. 7 at p. 7)
EPCA directs DOE to set standards for commercial refrigeration equipment (
During the Framework comment period, several stakeholders commented on whether this rulemaking applies to equipment not designated for retail use. FPA commented that DOE needs to distinguish between “industrial” and “commercial.” FPA believes that the EPCA requirements for commercial refrigeration equipment were intended for “point-of-sale” equipment that is found in convenience stores and supermarkets. FPA continued that, in the food industry, “refrigeration” includes the industrial equipment found in manufacturing and processing facilities, not just the equipment in retail stores. (Public Meeting Transcript, No. 3.4 at pp. 23-24) Southern Company stated that the language “storing or displaying or dispensing” in DOE’s definition of “ice-cream freezer” is ambiguous because it could include some industrial equipment the size of a tractor-trailer compartment. Southern Company believes there needs to be language to clarify that this rulemaking covers equipment used at the retail level. (Public Meeting Transcript, No. 3.4 at pp. 35-36) Southern Company and EEI both stated that a literal reading of DOE’s proposed equipment classes appears to include industrial refrigeration equipment, which is not used for the display of merchandise for sale to the consumer. Southern Company and EEI believe that the inclusion of this equipment would unnecessarily complicate the analysis and the development of test procedures. They also stated that this equipment is not covered by EPCA and only commercial equipment is covered. They suggest that DOE define which equipment is for commercial purposes and which is for industrial purposes. Southern Company and EEI suggest that DOE define commercial refrigeration equipment as “refrigeration equipment which would normally be used in a commercial business which sells products to ultimate consumers.” Further, the definition “should not include equipment which is normally used only in refrigerated warehouses or manufacturing facilities.” (Southern Company, No. 6 at pp. 1-2; EEI, No. 8 at p. 1)
DOE understands that industrial refrigeration equipment consists of equipment used to process, manufacture, transport, or store chilled or frozen food and other perishable items. Industrial refrigeration equipment used to process or manufacture chilled or frozen food primarily includes equipment used to flash-freeze or chill food on an assembly line or in a batch manufacturing process. Industrial refrigeration equipment used to transport chilled or frozen food or other perishable items primarily includes refrigerated rail cars and tractor-trailers. In industrial buildings, temporary storage of chilled or frozen food is also necessary, as the manufactured product is often held at
The term “commercial refrigerator, freezer, and refrigerator-freezer” is defined as refrigeration equipment that, in part, “displays or stores merchandise and other perishable materials” (see section I.D of this ANOPR). DOE interprets this language to mean that equipment used in the
Under EPCA, this equipment includes commercial refrigerators, commercial freezers, and commercial refrigerator-freezers that have a remote condensing unit, except for any remote condensing equipment that would meet DOE's definition of “ice-cream freezer” as set forth at 10 CFR 431.62, 71 FR 71369.
EPCA does not specifically define the term “commercial refrigerator-freezer,” nor is DOE aware of an existing, written definition for such equipment. Therefore, in its Framework Document, DOE sought feedback on use of the definition of “electric refrigerator-freezer” for consumer products (set forth in 10 CFR 430.2) as a basis for defining the term “remote condensing commercial refrigerator-freezer.” (As discussed below, DOE also sought input on using this definition as a basis for defining self-contained commercial refrigerator-freezers.) The consumer product definition in 10 CFR 430.2 states that “electric refrigerator-freezer means a cabinet which consists of two or more compartments with at least one of the compartments designed for the refrigerated storage of food at temperatures above 32°F. [
Based on the comments, DOE now believes that it need not adopt a definition of “remote condensing commercial refrigerator-freezer.” The comments by Zero Zone indicate the difficulties of adapting the residential product definition of refrigerator-freezer to the commercial setting. ARI did not comment on the need for a definition of commercial refrigerator-freezer discrete from definitions of refrigerator and freezer, and its suggested definition of “commercial refrigerator, commercial freezer, and commercial refrigerator-freezer” both duplicates and, in some ways, is inconsistent with the EPCA definition of this term. For example, one inconsistency is that the ARI definition states that the cabinet is connected to one or more power sources ranging from 120 to 240 volts AC, whereas the EPCA definition does not have any requirements for power sources. Further, ASAP did not address the fact that the definition in EPACT 2005 does not distinguish refrigerator-freezers from refrigerators and freezers. The comments by ARI and ASAP, however, indicate that they believe DOE does not need to adopt a separate definition for refrigerator-freezers.
DOE intends to rely here on the definition of “commercial refrigerator, freezer, and refrigerator-freezer” in EPCA (42 U.S.C. 6311(9)(A), added by EPACT 2005, section 136(a)(3)), and on its understanding of the well-accepted meaning of “refrigerator-freezer.” Thus, DOE construes the EPCA term “remote condensing commercial refrigerator-freezer” (see 42 U.S.C. 6313(c)(4)(A), added by EPACT 2005, section 136(c)) to mean refrigeration equipment that operates at both chilled and frozen temperatures and that is connected to a remote condensing unit. This term refers to equipment with two or more separate compartments, at least one of which is capable of maintaining food or other perishable items at temperatures above freezing and at least one of which maintains its contents frozen. By contrast, refrigerators operate only at temperatures above freezing, and freezers only at or below freezing temperatures.
In its Framework Document, DOE pointed out that EPCA defines a “self-contained condensing unit,” in part, as an assembly of refrigerating components “that is an integral part of the refrigerated equipment * * * ” (42
ARI asserted that it was responsible for the language in EPACT 2005 on this subject and the intent was to cover the display case and storage cabinet only, not the remote condensing unit. (Public Meeting Transcript, No. 3.4 at pp. 47-48, 49) ACEEE responded by stating that it may be worth trying to cover the remote condensing unit so that the whole system is regulated. (Public Meeting Transcript, No. 3.4 at p. 48) Zero Zone pointed out that regulating the remote condensing unit would prove to be difficult because of the wide range of design differences in compressors and condensing units, and recommended not regulating them now. (Public Meeting Transcript, No. 3.4 at p. 48) ARI stated that it agreed with DOE's interpretation of EPACT 2005 that the rulemaking should be limited to the refrigerated display merchandisers and storage cabinets only. Furthermore, ARI asserted that including the remote condensing unit in this rulemaking would significantly complicate the analysis and likely delay the completion date, and it recommended that DOE reassess the situation in the future to determine whether energy conservation standards should be established for remote condensing equipment. (ARI, No. 7 at p. 3) Finally, the Joint Comment stated that DOE should cover remote condensing units under this rulemaking because it would provide more opportunity for energy savings and for manufacturers to trade off performance between different parts of the system. However, if DOE determines that including the entire system in this rulemaking is impractical, then the balance of the system should not be included under “covered” equipment for now, but instead, DOE should consider such coverage in a subsequent revision to the standard. (Joint Comment, No. 9 at p. 5).
Clearly, stakeholders differed on whether a remote condensing unit is considered part of the equipment to which it is connected, and whether such units are covered by the EPCA directive that DOE set standards for remote condensing commercial refrigerators, commercial freezers, and commercial refrigerator-freezers. (42 U.S.C. 6313(c)(4)(A), added by EPACT 2005, section 136(c)) ARI indicated that it believes EPCA does not authorize application of standards to remote condensing units, while ACEEE and the Joint Comment argued that remote condensing units should be covered but not necessarily in this rulemaking. However, DOE agrees with the stakeholders who stated that including remote condensing units in the present rulemaking would significantly complicate the rulemaking. There would be many difficulties in establishing standards for the display cases and the remote condensing units as a system. For example, display cases and remote condensing units are typically purchased from different manufacturers and installed at the site. Multiple display cases may be connected to one or more remote condensing units through an extensive network of refrigerant piping. Since each system is custom designed for its location, each individual system will have unique aspects to its design and operation (
For these reasons, the energy conservation standards DOE intends to develop in this rulemaking for remote condensing commercial refrigeration equipment will apply to display cases only, not to the remote condensing units. DOE will address at a later time whether and to what extent it has the authority to regulate remote condensing units and, if so, whether standards that address these units are warranted and feasible.
In its Framework Document, DOE stated that it construed the language in section 136(a)(3) of EPACT 2005, 42 U.S.C. 6311(9)(A)(vii), the definition for “commercial refrigerator, freezer, and refrigerator-freezer,” to mean that so-called “secondary-coolant applications” are not covered under this rulemaking. DOE stated that it believed this interpretation of EPACT 2005 was consistent with ANSI/ARI Standard 1200-2006, which explicitly excludes secondary-coolant applications.
During the Framework comment period, several stakeholders commented on the coverage of equipment that uses secondary coolant systems.
Section 340(9)(A)(vii) of EPCA (42 U.S.C. 6311((9)(A)(vii), added by EPACT 2005, section 136(a)(3)), states that the term “commercial refrigerator, freezer,
Under EPCA, this equipment includes all types of commercial refrigerators, commercial freezers, and commercial refrigerator-freezers that have a self-contained condensing unit and have no doors, except for self-contained equipment that meets DOE's definition of “ice-cream freezer” as set forth at 10 CFR 431.62. 71 FR 71369. As with remote condensing equipment, self-contained equipment is typically used to store and display merchandise for direct sale to the consumer, and is commonly referred to as a “refrigerated display case,” “display cabinet,” or “merchandiser.” Self-contained equipment is defined as having an integral condensing unit (
In its Framework Document, as with the term “remote condensing commercial refrigerator-freezers,” DOE sought feedback on use of the definition of “electric refrigerator-freezer” for consumer products (as set forth in 10 CFR 430.2) as a basis for defining the term “self-contained commercial refrigerator-freezer.” The comments on this subject were virtually identical to those received with respect to the remote condensing equipment, which are discussed above in section II.A.1.c, and DOE has reached the same conclusion here as it reached with respect to that equipment. Specifically, DOE does not intend at this point to adopt a definition for “self-contained commercial refrigerator-freezer without doors.” Rather, DOE intends to rely on EPCA's definition of “commercial refrigerator, freezer, and refrigerator-freezer,” and on its understanding of the well-accepted meaning of “refrigerator-freezer.” DOE construes the EPCA term “self-contained commercial refrigerator-freezer without doors” (see 42 U.S.C. 6313(c)(4)(A), added by EPACT 2005, section 136(c)) to mean refrigeration equipment that operates at both chilled and frozen temperatures, is connected to a self-contained condensing unit, and has no doors. Such equipment has two or more separate compartments, at least one of which is capable of maintaining food or other perishable items at temperatures above freezing and at least one of which maintains its contents frozen.
The EPCA provision that requires this rulemaking identifies “ice-cream freezers” separately from “self-contained commercial refrigerators, freezers, and refrigerator-freezers without doors” and “remote condensing commercial refrigerators, freezers, and refrigerator-freezers.” (42 U.S.C. 6313(c)(4)(A), added by EPACT 2005, section 136(c)) EPCA neither specifies nor indicates that “ice-cream freezers” are limited to equipment with a particular door configuration (
During the Framework comment period, several stakeholders commented on the definition of commercial ice-cream freezer. ARI stated that the majority of equipment intended for ice cream operates at −5 °F or 0 °F, with a minority that operates at −30 °F, and stated that DOE should focus on those ice-cream freezers with high shipment volumes. (Public Meeting Transcript, No. 3.4 at pp. 32-33) Zero Zone stated that there are many interpretations of what an ice-cream freezer is. Zero Zone asserted that California and Canada define an ice-cream freezer “along the lines of a dipping cabinet.” (Public Meeting Transcript, No. 3.4 at p. 35) Zero Zone further commented that the display-type freezers it sells for ice cream and frozen food are the same, that these cases have adjustable temperatures, and that the user sets the temperature of the equipment a little lower when it uses the equipment for ice cream. Typically, the equipment has two ratings, one for use of frozen food and for ice cream, because customers want to know the energy use for each. Zero Zone also characterized as “true ice-cream cabinets” those which have specific functions for the processing and storage of ice cream, rather than its display, and asserted that comparatively few of these are sold. (Public Meeting Transcript, No. 3.4 at p. 38) Zero Zone asserted that the term “ice-cream freezer” cannot be specifically defined because ice cream can be stored or displayed in a number of cabinets that have different cabinet styles and that may also be used to store other, non-ice-cream equipment. In addition, it stated that not all ice cream is stored at the same temperature. Zero Zone recommended that freezers be divided into three categories: ice-cream dipping cabinets, 0 °F to −15 °F, and below −15 °F. (Zero Zone, No. 5 at p. 1) Hill Phoenix stated that its freezer cases also can operate at either 0 °F or −5 °F, but there is no distinction in the design of the case used for ice cream and that used for frozen food, only in how the customer uses it. Hill Phoenix added that because these two temperatures are so close, there is a linear relationship between temperature and energy usage. Hill Phoenix also stated there is a category of cases that operate at −15 °F to −30 °F, called “hardening” cabinets, which have a different design than typical freezer cases. (Public Meeting Transcript, No. 3.4 at p. 41) Both Southern Company and EEI stated that it is important that DOE develop definitions for commercial freezer and ice-cream freezer that are all-inclusive, and do not leave any loopholes for States to regulate. (Southern Company, No. 6 at p. 2; EEI, No. 8 at p. 1) ARI stated that there is very little difference
As part of the December 8, 2006 final rule, in which it adopted test procedures for commercial refrigeration equipment, DOE adopted the following definition for “ice-cream freezer:” “a commercial freezer that is designed to operate at or below −5 °F (−21 °C) and that the manufacturer designs, markets, or intends for the storing, displaying, or dispensing of ice cream.” 71 FR 71369; 10 CFR 431.62. In addition, this final rule prescribed the rating temperature at −15 °F for ice-cream freezers. 71 FR 71370; 10 CFR 431.64.
Under this definition, unless equipment is designed, marketed, or intended specifically for the storage, display or dispensing of ice cream, it would not be considered an “ice-cream freezer.” Multi-purpose commercial freezers, manufactured for storage and display, for example, of frozen foods as well as ice cream would not meet this definition, and DOE would not treat them as commercial ice-cream freezers in this rulemaking. This is in accord with the comments listed above, which indicated that DOE should not classify such freezers as ice-cream freezers. On the other hand, any commercial freezer that is specifically manufactured for storing, displaying or dispensing ice cream, and that is designed so that in normal operation it can operate at or below −5 °F (−21 °C), would meet the definition. This includes equipment that some stakeholders referred to as true ice-cream cabinets—freezers designed to operate considerably below −5 °F and that are sometimes referred to as “hardening” cabinets and are specifically designed for ice cream storage, for example—as well as those ice-cream dipping cabinets that are designed to operate at least to some extent below −5 °F. DOE intends to classify and address these types of equipment as commercial ice-cream freezers in this rulemaking.
In general, when evaluating and establishing energy conservation standards, DOE divides covered equipment into equipment classes by the type of energy used, capacity or other performance-related features that affect efficiency, and factors such as the utility of the equipment to users. (See 42 U.S.C. 6295(q).) Different energy conservation standards may apply to different equipment classes.
Commercial refrigeration equipment can be divided into various equipment classes categorized by physical characteristics that affect the efficiency of the equipment. Most of these characteristics affect the merchandise that the equipment can be used to display, and how that merchandise can be accessed by the customer. Key physical characteristics are the operating temperature, the presence or absence of doors (
DOE could not identify an existing industry definition of air-curtain angle, but developed a preliminary definition for consideration. DOE is considering defining air-curtain angle as the angle between a vertical line and the line formed by the points at the center of the discharge air grille and the center of the return air grille, when viewed in cross-section. DOE specifically seeks feedback on this definition of air-curtain angle. This is identified as Issue 2 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
DOE proposed an organization of equipment classes in its Framework Document based on the equipment classes for self-contained commercial refrigerators, commercial freezers and commercial refrigerator-freezers with doors described in section 136(c)(2) of EPACT 2005. Another organization of equipment classes for commercial refrigeration equipment was proposed by ARI during the Framework comment period, and presented by DOE during the Framework public meeting. ARI organized commercial refrigeration equipment by equipment family (where equipment family is considered as broad groups of covered equipment that have similar geometric characteristics), condensing unit type, and operating temperature.
DOE agrees with ARI that the characteristics of the service over counter design affect efficiency, and is proposing an equipment class organization that includes a service over counter equipment family. DOE also agrees with ARI that the energy consumption of commercial refrigeration equipment with doors is affected by whether the doors are solid or transparent, and is proposing to include this distinction in its equipment class organization.
In its Framework Document, DOE suggested that equipment without doors be divided into equipment classes based on air-curtain angles of 0° to 30° (vertical), 30° to 60° (semivertical), and 60° to 90° (horizontal) from the vertical. During the Framework public meeting, DOE asked for comments on these proposed ranges of air-curtain angle. Hill Phoenix stated that the industry defines these as 0° to 10° for vertical, 10° to 80° for semivertical, and 80° to 90° for horizontal. (Public Meeting Transcript, No. 3.4 at p. 86) The Joint Comment stated that the ranges for vertical and semivertical should be closer to those used in DOE's proposal. Specifically, the Joint Comment stated that because vertical equipment will tend to be more efficient and thus likely
The cost-efficiency data DOE received from ARI for four covered equipment classes were based on the industry definitions of 0° to 10° for vertical equipment, 10° to 80° for semivertical equipment, and 80° to 90° for horizontal equipment, as measured from the vertical. Therefore, DOE conducted its analyses for the ANOPR based on these definitions of equipment families, but recognizes the concern raised by the Joint Comment that these delineations may result in one type of equipment being substituted for another. To investigate the relationship of air-curtain angle to energy consumption for remote condensing medium temperature open display cases (VOP.RC.M, SVO.RC.M, and HZO.RC.M equipment classes), DOE collected market data, which is documented in the market and technology assessment (see chapter 3 of the TSD).
DOE understands that there is the potential for manufacturers to redesign equipment to move from one equipment class to another regardless of where the air-curtain angle delineation is made. However, the concern raised above is heightened by the concentration of equipment in the 0° to 10° from the vertical range, and the potential for mass redesign of the majority of equipment currently classified as VOP.RC.M in order to be classified as SVO.RC.M. According to DOE's market data, there is a clear region of low density at an air-curtain angle of 30° from the vertical, and DOE believes that drawing the delineation between the VOP and SVO equipment families here could potentially result in less equipment migration from the VOP.RC.M equipment class to the SVO.RC.M equipment class.
Additionally, DOE's market data provides little support for delineating the SVO.RC.M and the HZO.RC.M equipment families at 80° from the vertical. A significant group of equipment with similar characteristics (but clearly distinguished from the SVO.RC.M and VOP.RC.M equipment classes) is present with air curtain angles of 65° to 90° from the vertical. This supports drawing the SVO.HZO equipment family delineation at 60° to 65° from the vertical. In light of this market data, DOE welcomes any additional data or feedback regarding the proposed ranges of air-curtain angles or shipments of equipment in the VOP.RC.M, SVO.RC.M and HZO.RC.M equipment classes broken down by energy use and air-curtain angle.
DOE believes that the orientation of doors affects the energy consumption of commercial refrigeration equipment with doors and that this equipment can be broadly categorized by the angle of the door. DOE did not receive stakeholder feedback on how to define the door angle for equipment with doors, but is considering defining door angle as “the angle between a vertical line and the line formed by the plane of the door, when viewed in cross-section.” DOE specifically seeks feedback on this definition of door angle. This is identified as Issue 3 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
During the Framework comment period, no objections were raised to the proposal of equipment families of “horizontal” and “vertical” equipment with doors. In addition, Hill Phoenix commented that ARI eliminated the “semivertical with doors” equipment family (doors with an angle that deviated substantially from 0° or 90° with respect to the vertical) because no manufacturers could identify any shipments of semivertical equipment with doors. (Public Meeting Transcript, No. 3.4 at p. 63) Therefore, for equipment with solid and transparent doors, DOE is considering defining two equipment families each, based on door angles of 0° to 45° (vertical) and 45° to 90° (horizontal). DOE specifically seeks feedback on these ranges of door angles for equipment with doors. This is identified as Issue 4 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
Based on the above information, DOE intends to use eight equipment families, which are shown in Table II.1.
Within each of these eight equipment families are equipment that have one of the two condensing unit configurations shown in Table II.2.
Equipment classes would also be organized based on the three rating temperatures shown in Table II.3.
Based on stakeholder feedback, DOE is considering 38 of the 48 equipment classes shown in Table II.4.
EPCA contains standards for self-contained commercial refrigerators, commercial freezers and commercial refrigerator-freezers with doors (42 U.S.C. 6313(c)(2)-(3)); therefore this equipment is not included in this rulemaking. Table II.5 identifies, by sets of letters, 10 potential equipment classes for this equipment. DOE has based the designations of these possible equipment classes on the equipment class designations presented in Table II.1 through Table II.3. Because these equipment classes are not included in this rulemaking, they are indicated with an asterisk in Table II.4.
During the Framework public meeting, Hill Phoenix asserted that equipment with separate refrigerator and freezer compartments (
In sum, Table II.6 presents the equipment classes covered under this rulemaking organized by the three equipment categories, in accordance with EPCA section 325(p)(1)(A). (42 U.S.C. 6295(p)(1)(A)) Pursuant to EPCA section 325(p)(1)(B), DOE specifically seeks feedback on these equipment classes and invites interested persons to submit written presentations of data, views, and arguments. (42 U.S.C. 6295(p)(1)(B)) This is identified as Issue 5 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
The standards being developed in this rulemaking must apply to equipment of varying size and capacity within an equipment class, so they must be normalized by some factor that is representative of the varying energy use of the equipment. A “normalization metric” is a measure of capacity or utility that allows comparison of energy use of various sizes of equipment on a unit capacity basis. During the Framework public meeting, DOE asked what normalization metric would be most appropriate for the equipment in this rulemaking—total display area (TDA), refrigerated volume, or length. ARI commented that in remote condensing equipment, the trend has been to use TDA, not only in the United States, but in Europe as well. ARI is trying to align itself with standards like those from the International Standards Organization (ISO) that use TDA, and wants DOE to be consistent with these ISO standards. ARI's certification program will be based on TDA, and that is how the data will be listed in its certification directory. (Public Meeting Transcript, No. 3.4 at pp. 95-96) ARI also proposed that daily energy consumption be calculated as a function of the refrigerated volume for self-contained equipment with doors, and as a function of TDA for self-contained equipment without doors, because these respective normalization metrics are most representative of the energy consumption of these two types of equipment. (ARI, No. 7 at p. 9) ARI also stated that it will collect and analyze data for daily energy consumption as a function of refrigerated volume and TDA for remote condensing equipment in order to develop an appropriate recommendation for that type of equipment. (ARI, No. 7 at p. 9) The Joint Comment stated that they do not agree with DOE's proposal to use TDA as the metric for cases without doors, because, they assert, such an approach would favor “shallow'' and “tall'' equipment over “deeper'' and “shorter'' equipment of equivalent volume. The Joint Comment proposed that DOE instead use volume, length, or potentially a combination of TDA and volume. One compromise would be to use a multiple regression equation that would consider both refrigerated volume and length or refrigerated volume and TDA. (Joint Comment, No. 9 at p. 5, and Public Meeting Transcript, No. 3.4 at pp. 94-95)
In this rulemaking, DOE intends to establish standards for remote condensing commercial refrigerators, commercial freezers and commercial refrigerator-freezers, as well as commercial ice-cream freezers, with solid or transparent doors. Equipment with transparent doors is subject to significant radiation loads (as much as 50 percent of the total refrigeration load) as well as loads due to anti-sweat heaters that are required to keep the door free of condensation. In addition, transparent doors are inherently poorer
DOE will also establish in this rulemaking standards for remote condensing and self-contained commercial refrigerators, commercial freezers and commercial refrigerator-freezers, and commercial ice-cream freezers, without doors. The physical relationship between heat loads and energy consumption is fundamentally different for this equipment than for the equipment that has standards set by EPCA (
During the Framework public meeting, DOE asked stakeholders if it would be appropriate to extend the standards prescribed for self-contained refrigeration equipment with doors in EPCA to similar remote condensing equipment with doors and commercial ice-cream freezers with doors covered in this rulemaking, and if so, what methodology would be appropriate. ARI commented that it would not be appropriate to extend the standards from self-contained equipment because that equipment is normalized by volume, and the remote condensing equipment industry uses TDA or some other metric. (Public Meeting Transcript, No. 3.4 at p. 89) Hill Phoenix commented that as DOE has the opportunity to look at energy data, it will see that for remote condensing cases, energy consumption would be lower than for the self-contained cases. However, Hill Phoenix did not explain how to make the comparison. (Public Meeting Transcript No. 3.4 at p. 91) ARI also asserted that an extension of the EPCA standards for self-contained commercial refrigeration equipment with doors to remote condensing commercial refrigeration equipment with doors is not appropriate. ARI explained that the interior volume of self-contained equipment is calculated using the ANSI/AHAM Standard HRF-1-2004, whereas the interior volume of remote condensing equipment should be calculated according to ANSI/ARI Standard 1200-2006. (ARI, No. 7 at p. 8)
Because of the differences in energy consumption, and calculation of interior volume, DOE will not apply the standards prescribed by EPCA for self-contained equipment with doors to remote condensing equipment with doors. Instead, DOE will perform an analysis of the impacts of potential standards and will adopt levels that meet the requirements of EPCA section 325(o). (42 U.S.C. 6295(o)) As to commercial ice-cream freezers with doors, in the market and technology assessment (see chapter 3 of the TSD), DOE identified 16 commercial ice-cream freezer equipment classes. During the engineering analysis (see chapter 5 of the TSD), DOE developed cost-efficiency curves directly for 3 of the 16 commercial ice-cream freezer equipment classes (HCT.SC.I, VCT.SC.I, and VCS.SC.I) because of their high shipment volumes. For these three classes, this eliminated the issue of extending standards from self-contained commercial freezers with doors. For the remaining 13 equipment classes, DOE is considering use of the cost-efficiency curves (or standards) developed in this rulemaking for certain equipment classes of remote condensing commercial freezers and self-contained commercial freezers without doors, for equivalent equipment classes of commercial ice-cream freezers. For a portion of these 13 low-shipment-volume commercial ice-cream freezer equipment classes (as well as other low-shipment-volume equipment classes) DOE is also considering use of the EPACT 2005 standards for self-contained commercial freezers with doors. The intent of this approach is to save time and resources by eliminating direct analysis of equipment classes that have low shipment volumes and lower overall potential energy savings. At this point in the rulemaking, DOE only demonstrated this approach with two commercial ice-cream freezer equipment classes, as well as one other commercial refrigeration equipment class, (see chapter 5 of the TSD) and not the full set of covered equipment classes. DOE specifically seeks feedback on this approach to extending cost-efficiency curves (or standards) from high-shipment-volume equipment classes to low-shipment-volume equipment classes, and of extending EPCA standards to equipment classes in this rulemaking. This is identified as
In the market assessment, DOE develops a qualitative and quantitative characterization of the commercial refrigeration equipment industry and market structure based on publicly available information and data and information submitted by manufacturers and other stakeholders.
DOE identified 34 manufacturers of commercial refrigeration equipment. Four of these companies hold approximately 85 percent of the domestic market share of refrigerated display cases. These four manufacturers produce self-contained commercial refrigerators, commercial freezers, and commercial refrigerator-freezers without doors and commercial ice-cream freezers, although their primary business is in remote condensing commercial refrigerators and commercial freezers with and without doors. Like most industries, there exists a second tier of smaller, but well-known manufacturers. These other manufacturers make up the remaining 15 percent of U.S. market share. See chapter 3 of the TSD for more information regarding manufacturers of commercial refrigeration equipment.
DOE is considering the possibility that small businesses would be particularly impacted by the promulgation of energy conservation standards for commercial refrigeration equipment. The Small Business Administration (SBA) defines small business manufacturing enterprises for commercial refrigeration equipment as those having 750 employees or fewer. SBA lists small business size standards for industries as they are described in the North American Industry Classification System (NAICS). The size standard for an industry is the largest that a for-profit concern can be in that industry and still qualify as a small business for Federal Government programs. These size standards are generally expressed in terms of the average annual receipts or the average employment of a firm. For commercial refrigeration equipment, the size standard is matched to NAICS code 333415, Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing, and is 750 employees. DOE will study the potential impacts on these small businesses in detail during the MIA, which will be conducted as a part of the NOPR analysis. See chapter 3 of the TSD for more information regarding commercial refrigeration equipment for small businesses.
ARI submitted annual shipment data by equipment class for its member companies. (ARI, No. 7 Exhibit B at p. 1) DOE understands that these data do not include the entire industry, since not all major manufacturers are represented by ARI (most notably, True Manufacturing, which DOE understands has a large market share of self-contained commercial equipment with doors and commercial ice-cream freezers). However, because these data cover the vast majority of the commercial refrigeration equipment sold, and because no other detailed data were available, the ARI shipment data became the basis of DOE's analysis.
The market and technology assessment (see chapter 3 of the TSD) provides detailed shipment information from ARI for each category of commercial refrigeration equipment by equipment class for 2005. The ARI data included shipments for equipment that operates at an “application” temperature (
DOE reviewed available literature and consulted with experts on commercial refrigeration equipment in order to establish typical equipment lifetimes. The literature and individuals consulted estimated a wide range of typical equipment lifetimes. Based on the literature reviewed and discussions with industry experts and other stakeholders, DOE concluded that a typical lifetime of 10 years is appropriate for commercial refrigeration equipment. See chapter 3 of the TSD for more information regarding equipment lifetimes.
DOE characterized commercial refrigeration equipment energy consumption by conducting a survey of existing remote condensing refrigeration equipment from major manufacturers and compiling a performance database. The primary source of information for the database was equipment data sheets that were publicly available on manufacturers' websites. From these data sheets, equipment information such as total refrigeration load, evaporator temperature, lighting power draw, defrost power draw, and motor power draw allowed determination of calculated daily energy consumption (CDEC) according to the test procedure in ANSI/ARI Standard 1200-2006. See chapter 3 of the TSD for more information regarding the performance data for selected remote condensing equipment classes.
In the technology assessment, DOE identified technologies and design options that could improve the efficiency of commercial refrigeration equipment. This assessment provides the technical background and structure on which DOE bases its screening and engineering analyses. For commercial refrigeration equipment, DOE based its list of technologically feasible design options on input from manufacturers, industry experts, component suppliers, trade publications, and technical papers. See chapter 3 of the TSD for additional detail on the technology assessment and technologies analyzed.
The purpose of the screening analysis is to evaluate the technologies that improve the efficiency of equipment, to determine which technologies to consider further and which options to screen out. DOE consulted with industry, technical experts, and other interested parties to develop a list of technologies for consideration. DOE then applied the following four screening criteria to determine which technologies are unsuitable for further consideration in the rulemaking (10 CFR Part 430, Subpart C, Appendix A at 4(a)(4) and 5(b)):
1. Technological feasibility. Technologies incorporated in commercial equipment or in working prototypes will be considered technologically feasible.
2. Practicability to manufacture, install, and service. If mass production of a technology in commercial equipment and reliable installation and servicing of the technology could be achieved on the scale necessary to serve the relevant market at the time of the effective date of the standard, then that technology will be considered practicable to manufacture, install and service.
3. Adverse impacts on equipment utility or equipment availability. If a technology is determined to have significant adverse impact on the utility of the equipment to significant subgroups of consumers, or result in the unavailability of any covered equipment type with performance characteristics (including reliability), features, sizes,
4. Adverse impacts on health or safety. If it is determined that a technology will have significant adverse impacts on health or safety, it will not be considered further.
DOE eliminated five of the technologies considered in the market and technology assessment. The specific technologies that were eliminated are: (1) Air-curtain design, (2) thermoacoustic refrigeration, (3) magnetic refrigeration, (4) electro-hydrodynamic heat exchangers, and (5) copper rotor motors. Because all five of these technologies are in the research stage, DOE believes that they would not be practicable to manufacture, install and service on the scale necessary to serve the relevant market at the time of the effective date of the standard. In addition, because these technologies are in the research stage, DOE cannot assess whether they will have any adverse impacts on utility to significant subgroups of consumers, result in the unavailability of any types of equipment, or present any significant adverse impacts on health or safety. Therefore, DOE will not consider these technologies as design options for improving the energy efficiency of commercial refrigeration equipment.
For more details on how DOE developed the technology options and the process for screening these options, refer to the market and technology assessment (see chapter 3 of the TSD) and the screening analysis (see chapter 4 of the TSD).
The purpose of the engineering analysis is to establish the relationship between the cost and efficiency of commercial refrigeration equipment. For each equipment class, this relationship estimates the baseline manufacturer cost, as well as the incremental cost for equipment at efficiency levels above a baseline. In determining the performance of higher efficiency equipment, DOE considers technologies and design option combinations not eliminated in the screening analysis. The output of the engineering analysis is a set of cost-efficiency “curves'' that are used in downstream analyses (
DOE typically structures its engineering analysis around one of three methodologies. These are: (1) The design-option approach, which calculates the incremental costs of adding specific design options to a baseline model; (2) the efficiency-level approach, which calculates the relative costs of achieving increases in energy efficiency levels; and (3) the reverse-engineering or cost-assessment approach, which involves a “bottoms-up'' manufacturing cost assessment based on a detailed bill of materials derived from commercial refrigeration equipment tear-downs.
In this rulemaking, DOE is adopting an efficiency-level approach, supplemented by a design-option approach. For the four equipment classes with the highest shipment volumes, DOE used industry-supplied cost-efficiency curves developed using an efficiency-level approach in downstream analyses.
In the Framework Document, DOE requested feedback on the use of an efficiency-level approach supported, as needed, by a design-option approach to determine the cost-efficiency relationship for commercial refrigeration equipment. ACEEE expressed concern about the use of an efficiency-level approach because it effectively creates a “black box” that does not allow for any independent analyses. ACEEE prefers the design-option approach because of its transparency and the ability to be independently verified. ACEEE noted that in the past, DOE has taken both approaches simultaneously. By doing both, DOE can calibrate one approach against another and have data that are publicly available so all parties can comment. (Public Meeting Transcript, No. 3.4 at p. 110) ASAP stated that the design-option approach remains very important because it validates the data and shows the benefits of different technical options. (Public Meeting Transcript, No. 3.4 at p. 119) ARI stated that it supports DOE's suggested approach for determining the cost-efficiency relationship for commercial refrigeration equipment. (ARI, No. 7 at p. 9) The Joint Comment stated that it supports the use of an efficiency-level approach, provided that the estimates used are sufficiently supported with design-option data for purposes of both qualification and adding transparency to the “black box” of the efficiency-level data. In particular, the Joint Comment pointed out that this will require DOE to qualify multiple points for each equipment class, carrying out further design-option analysis as necessary to identify the most reasonable costs to use if the design-options and efficiency-level data are not in alignment. (Joint Comment, No. 9 at p. 1)
As previously described, DOE used an efficiency-level approach supported by a design-option approach. DOE supplemented the industry-supplied data with its own design-option analysis, which involved consultation with outside experts, review of publicly available cost and performance information, and modeling of equipment cost and energy consumption. The supplemental design-option analysis provides validation of the industry efficiency-level data, transparency of assumptions and results, and the ability to perform independent analyses for verification. In addition, the supplemental design-option analysis allows analytically derived cost-efficiency curves to be generated for equipment classes where no industry-supplied curves are available. The methodology used to perform the design-option analysis is described in detail in chapter 5 of the TSD.
Because of the large number of equipment classes in this rulemaking (see Table II.6), DOE did not directly analyze all equipment classes in the engineering analysis for this ANOPR. Instead, DOE prioritized the engineering analysis by examining only the equipment classes with shipment volumes greater than 100 units per year. Table II.7 lists the 15 equipment classes that DOE directly analyzed in the engineering analysis. This table includes the 14 equipment classes with greater than 100 annual unit shipments, as well as the VOP.RC.L equipment class.
In the design-option approach, DOE used models to develop estimates of cost and energy consumption for each equipment class at each efficiency level. A cost model was used to estimate the manufacturer production cost (MPC) in dollars, and an energy consumption model was used to estimate the daily energy consumption in kilowatt hours (kWh) of covered commercial refrigeration equipment.
Development of the cost model involved the disassembly of a self-contained refrigerator with transparent doors, an analysis of the materials and manufacturing processes, and the development of a parametric spreadsheet model flexible enough to cover all equipment classes. The manufacturing cost model estimated MPC and reported it in aggregated form to maintain confidentiality of sensitive cost data. DOE obtained input from stakeholders on the MPC estimates and assumptions to confirm accuracy. The cost model was used for 7 of the 15 examined equipment classes and the results were extended to 6 of the remaining examined equipment classes. The cost of the remaining two equipment classes was estimated using available manufacturer list price (MLP) information discounted to MPC. Details of the cost model are provided in chapter 5 of the TSD.
A manufacturer markup is applied to the MPC estimates to arrive at the MSP. This is the price of equipment sold at which the manufacturer can recover both production and non-production costs, and earn a profit. A market-share-weighted average industry markup was developed by examining several major commercial refrigeration equipment manufacturers' gross margin information from annual reports and Securities and Exchange Commission (SEC) 10-K reports. The manufacturers whose gross margin information was examined by DOE represent approximately 80 percent of the commercial refrigeration equipment market, and each of these companies is a subsidiary of a more diversified parent company that manufactures equipment other than commercial refrigeration equipment. Because the SEC 10-K reports do not provide gross margin information at the subsidiary level, the estimated markups represent the average markups that the parent company applies over its entire range of offerings.
Markups were evaluated for the years 2000 to 2005, inclusively. The manufacturer markup is calculated as 100/(100−
DOE received industry-supplied curves from ARI in the form of daily energy consumption versus MLP, (both normalized by TDA). Since DOE's analytically derived curves were developed in the form of CDEC versus MSP (both normalized by TDA), it was necessary for DOE to estimate an industry list price markup so that comparisons between the two sets of curves could be made. The industry list price markup is a markup to the production cost that provides the list price. To make comparisons between the analytically derived cost-efficiency curves and the industry-supplied cost-efficiency curves, DOE discounted the industry data with the list price markup and normalized the analytically derived curves by TDA.
DOE understands that manufacturers typically offer a discount off the MLP, which depends on various factors such as the relationship with the customer and the volume and type of equipment being purchased. For the estimate of list price markup, DOE relied on information gathered on self-contained commercial refrigeration equipment, since list price information is readily available and typically published by self-contained equipment manufacturers for this equipment. A review of the data for self-contained equipment shows that the list price markup is typically 2.0 (
The energy consumption model estimates the daily energy consumption of commercial refrigeration equipment at various performance levels using a design-options approach. The model is specific to the categories of equipment covered under this rulemaking, but is sufficiently generalized to model the energy consumption of all covered equipment classes. For a given equipment class, the model estimates the daily energy consumption for the baseline and the energy consumption of several levels of performance above the baseline. The model is used to calculate each performance level separately. For the baseline level, a corresponding cost is calculated using the cost model, and for each level above the baseline, the cost increases resulting from the addition of various design options are used to recalculate the cost.
In the market and technology assessment (see chapter 3 of the TSD), DOE defined an initial list of technologies that can reduce the energy consumption of commercial refrigeration equipment. In the screening analysis, DOE screened out technologies based on four screening criteria: Technological feasibility, practicability to manufacture, changes to product utility, and safety. The remaining list of technologies becomes one of the inputs to the engineering analysis. However, for reasons noted below, DOE did not incorporate all of these technologies in the energy consumption model. Technologies that were not used include: Remote lighting ballast location, evaporator fan motor controllers, higher efficiency evaporator and condenser fan blades, insulation increases or improvements, low pressure differential evaporators, defrost cycle controls, and defrost mechanisms.
Relocation of fluorescent lamp ballasts outside the refrigerated space can reduce energy consumption by lessening the refrigeration load on the compressor. However, for the majority of commercial refrigeration equipment currently manufactured, ballasts are already located in electrical trays outside of the refrigerated space, in either the base or top of the equipment. The notable exceptions are the equipment classes in the VCT equipment family, where ballasts are most often located on the interior of each door mullion. Most commercial refrigeration equipment manufacturers purchase doors for VCT units that are preassembled with the entire lighting system in place rather than configured for separate ballasts. DOE believes that most commercial refrigeration equipment manufacturers choose doors this way because it would be labor intensive and time consuming to relocate these ballasts at the factory, and because of the additional cost and labor of wiring separate ballasts. In addition, the potential energy savings are small, since modern electronic ballasts are very efficient and typically contribute only a few watts each to the refrigeration load. Therefore, DOE did not consider remote relocation of ballasts as a design option.
Evaporator fan motor controllers allow fan motors to run at variable speed, to match changing conditions in the case. For evaporator fan motor controllers, there is some opportunity for savings as the buildup and removal of frost creates differing pressure drops across the evaporator coil. Theoretically, less fan power is required when the coil is free of frost. Additionally, the coil would operate at a more stable temperature during the period of frost build-up. However, the effectiveness of the air curtain in equipment without doors is very sensitive to changes in airflow, so fan motor controllers could disrupt the air curtain. The potential of disturbance to the air curtain, which could lead to higher infiltration loads, does not warrant the use of evaporator fan motor controllers in equipment without doors, even if there were some reduction in fan energy use. In addition, DOE believes that savings from evaporator fan motor controllers in all equipment types would be small. Therefore, DOE did not consider evaporator fan motor controllers as a design option.
Higher efficiency evaporator and condenser fan blades reduce motor shaft power requirements by moving air more efficiently. Current technology used in commercial refrigeration equipment is stamped sheet metal or plastic axial fan blades. These fan blades are lightweight and inexpensive. DOE was not able to identify any axial fan blade technology that is significantly more efficient than what is currently used, but did identify one alternative fan blade technology that could potentially improve efficiency: Tangential fan blades. Tangential fan blades can produce a wide, even airflow, and have the potential to allow for increased saturated evaporator temperature (SET) through improved air distribution across the evaporator coil, which would reduce compressor power. However, tangential fan blades in small sizes are themselves less efficient at moving air, and thus require greater motor shaft power. Because of these competing effects, DOE did not consider tangential fan blades as a design option.
Increases in or improvements to insulation thickness reduce the heat load due to conduction and thus reduce compressor power. Increases in the thickness of foam insulation are problematic because they must either borrow volume from the refrigerated space or increase the overall size of the equipment cabinet. Because the outer dimensions of commercial refrigeration equipment are limited, it is often not practical to increase the overall size of the cabinet (
Low pressure differential evaporators reduce energy consumption by reducing the power of evaporator fan motors. However, in space-constrained equipment such as commercial refrigeration equipment, this reduction usually comes from a decrease in evaporator coil surface area, which generally requires a lower SET to achieve the same discharge air temperature and cooling potential. This, in turn, results in a reduction in compressor efficiency. Because of these competing effects, DOE did not consider
Defrost cycle control can reduce energy consumption by reducing the frequency and duration of defrost periods. The majority of equipment currently manufactured already uses partial defrost cycle control in the form of cycle termination control. However, defrost cycle initiation is still scheduled at regular intervals. Full defrost cycle control would involve a method of detecting frost buildup and initiating defrost. As described in the market and technology assessment (see chapter 3 of the TSD), this could be accomplished through an optical sensor or sensing the temperature differential across the evaporator coil. However, both of these methods are unreliable due to problems with fouling of the coil due to dust and other surface contaminants. This becomes more of an issue as the display case ages. Because of these issues, DOE did not consider defrost cycle control as a design option.
Defrosting for medium temperature equipment is typically accomplished with off-cycle defrost. Because off-cycle defrost uses no energy (and decreases compressor on-time) there is no defrost design option capable of reducing defrost energy in cases that use off-cycle defrost. Some medium temperature equipment and all low temperature and ice-cream temperature equipment use supplemental heat for defrost. Commonly, electric resistance heating (electric defrost) is used in this equipment. An alternative to electric defrost in equipment that requires supplemental defrost heat is hot-gas defrost. Hot-gas defrost is most often used in remote condensing equipment and involves the use of the hot compressor discharge gas to warm the evaporator from the refrigerant side. The test procedure for commercial refrigeration equipment is not capable of quantifying the energy expenditure of the compressor during a hot-gas defrost cycle. Therefore, DOE did not consider it as a design option.
The design options DOE considered in the engineering analysis are:
• Higher efficiency lighting and ballasts for the VOP, SVO, HZO, and SOC equipment families (horizontal fixtures);
• Higher efficiency lighting and ballasts for the VCT equipment family (vertical fixtures);
• Higher efficiency evaporator fan motors;
• Increased evaporator surface area;
• Improved doors for the VCT equipment family, low temperature;
• Improved doors for the VCT equipment family, medium temperature;
• Improved doors for the HCT equipment family, ice-cream temperature;
• Improved doors for the SOC equipment family, medium temperature;
• Higher efficiency condenser fan motors (for self-contained equipment only);
• Increased condenser surface area (for self-contained equipment only); and
• Higher efficiency compressors (for self-contained equipment only).
In developing the energy consumption model, DOE made certain assumptions including general assumptions about the analysis methodology as well as specific numerical assumptions regarding load components and design options. DOE based its energy consumption estimates on new equipment tested in a controlled-environment chamber subjected to ANSI/ARI Standard 1200-2006, which references the ANSI/ASHRAE Standard 72-2005 test method.
The energy consumption model calculates CDEC as two major components: compressor energy consumption and component energy consumption (expressed as kilowatt hours per day (kWh/day)). Component energy consumption is a sum of the direct electrical energy consumption of fan motors, lighting, defrost and drain heaters, anti-sweat heaters, and pan heaters. Compressor energy consumption is calculated from the total refrigeration load (expressed as British thermal units per hour (Btu/h)) and one of two compressor models: one version for remote condensing equipment and one for self-contained equipment. The total heat load is a sum of the component load and the non-electric load. The component load is a sum of the heat emitted by evaporator fan motors, lighting, defrost and drain heaters, and anti-sweat heaters inside and adjacent to the refrigerated space (condenser fan motors and pan heaters are outside of the refrigerated space and do not contribute to the component heat load). The non-electric load is a sum of the heat contributed by radiation through glass and openings, heat conducted through walls and doors, and sensible and latent loads from warm, moist air infiltration through openings. Details of component energy consumption, compressor energy consumption, and load models are shown in chapter 5 of the TSD.
As mentioned above, the engineering analysis estimates the incremental costs for equipment with efficiency levels above the baseline in each equipment class. DOE was not able to identify a voluntary or industry standard that provided a minimum baseline efficiency requirement for commercial refrigeration equipment. Therefore, it was necessary for DOE to establish baseline specifications for each equipment class to define the energy consumption and cost of the typical baseline equipment. These specifications include dimensions, number of components, temperatures, nominal power ratings, and other case features that affect energy consumption, as well as a basic case cost (the cost of a piece of equipment not including the major efficiency-related components such as lights, fan motors, and evaporator coils).
DOE established baseline specifications for each of the equipment classes modeled in the engineering analysis by reviewing available manufacturer data, selecting several representative units from available manufacturer data, and then aggregating the physical characteristics of the selected units. This process created a representative unit for each equipment class with average characteristics for physical parameters (
The results of the engineering analysis are reported as cost-efficiency data (or “curves”) in the form of CDEC
This section explains how DOE developed the supply chain markups to determine installed prices for commercial refrigeration equipment (see chapter 6 of the TSD). DOE used the supply chain markups it developed (along with sales taxes and installation costs) in conjunction with the MSPs developed from the engineering analysis to arrive at the final installed equipment prices for baseline and higher efficiency equipment. As shown in Table II.8, DOE defined three distribution channels for commercial refrigeration equipment to describe how the equipment passes from the manufacturer to the customer. In the first distribution channel, the manufacturer sells the equipment directly to the customer through a national account. In the second and third distribution channels, the manufacturer sells the commercial refrigeration equipment to a wholesaler, who in turn may sell it directly to the customer or sell it to a mechanical contractor who may sell it and its installation to the customer. The wholesaler in this case can be a refrigeration wholesaler focusing on commercial refrigeration equipment, or a grocery warehouser (supply chain distributor) who sells food and retail store equipment to the retailer. Table II.8 also gives the estimated distribution channel shares (in percentage of total sales) through each of the three distribution channels.
For each of the steps in the distribution channels presented above, DOE estimated a baseline markup and an incremental markup. A baseline markup is applied to the purchase of equipment with the baseline efficiency. An incremental markup is applied to the incremental increase in MSP for the purchase of higher efficiency equipment. The overall baseline or overall incremental markup is then given by the product of all the markups at each step in the distribution channel plus sales tax. Overall baseline or overall incremental markups for the entire commercial refrigeration equipment market can be determined using the shipment weights through each distribution channel and the corresponding overall baseline markup or the corresponding overall incremental markup, respectively, for each distribution channel including the applicable sales tax.
Markups for each step of the distribution channel were developed based on available financial data. DOE based the wholesaler markups on firm balance-sheet data from the Heating, Airconditioning & Refrigeration Distributors International (HARDI), the trade association representing wholesalers of refrigeration and heating, ventilating and air-conditioning (HVAC) equipment. DOE used median financial statistics reported by the controls and refrigeration industry segment of this trade association in HARDI's 2005 Profit Planning Report. DOE based the mechanical contractor markups on U.S. Census Bureau financial data for the plumbing, heating, and air conditioning industry as a whole. Average markups for sales through national accounts were estimated as one-half that of the wholesaler to customer distribution channel.
Baseline markups for wholesalers and for contractors are calculated as total revenue (equal to all expenses paid plus profit) divided by the COGS. Expenses include direct costs for equipment, labor expenses, occupancy expenses, and other operating expenses (
The overall markup is the product of all the markups plus sales tax within a distribution channel. Both baseline and incremental overall markups were calculated for each distribution channel. Sales taxes were calculated based on State-by-State sales tax data reported by the Sales Tax Clearinghouse. Both contractor costs and sales tax vary by State, so the markup analysis develops distributions of markups within each distribution channel as a function of State and business type (
Average overall markups in each distribution channel can be calculated using estimates of the shipments of commercial refrigeration equipment units by business type and by State. The ANOPR analysis used estimates of relative total frozen and refrigerated food sales by State and each business type as reported by the U.S. Census Bureau as a proxy for relative shipments of commercial refrigeration equipment. Overall baseline and incremental markups for sales to supermarkets
Additional detail on markups can be found in chapter 6 of the TSD.
The energy use characterization estimates the annual energy consumption of commercial refrigeration equipment systems (including remote condensing units). This estimate is used in the subsequent LCC and PBP analyses (see chapter 8 of the TSD) and NIA (see chapter 10 of the TSD). DOE estimated the energy consumption of the 15 equipment classes analyzed in the engineering analysis (see chapter 5 of the TSD) using the relevant test procedure. These energy consumption estimates were then validated with annual simulation modeling of selected equipment classes and efficiency levels.
ANSI/ARI Standard 1200-2006, which references ANSI/ASHRAE Standard 72-2005, is an industry-developed test procedure for measuring the energy consumption of commercial refrigeration equipment. ANSI/ARI Standard 1200-2006 provides a method for estimating the daily energy consumption for a piece of commercial refrigeration equipment under steady-state conditions. ANSI/ARI Standard 1200-2006 treats remote condensing and self-contained commercial refrigeration equipment differently. In the case of remote condensing equipment, the test procedure measures the energy use of each component (
Several options were considered to provide estimates of the energy consumption of commercial refrigeration equipment. These options include: using a whole building simulation which would analyze case, compressor, and HVAC impacts; using an existing simulation program that would analyze display case and compressor energy use on an annual basis; and using estimates of energy consumption for various categories of equipment as developed in the engineering analysis. For the ANOPR, DOE used energy consumption estimates from the engineering analysis directly in the LCC analysis. To validate these estimates, DOE conducted a whole building energy use simulation for seven equipment classes at selected design-option levels.
A whole building simulation was the option first considered by DOE and was discussed during DOE?s Framework public meeting. During that meeting Southern Company and ARI commented that a whole building analysis is the desired approach (Public Meeting Transcript No. 3.4 at p. 151). The Northwest Power Planning Council (NWPPC) and ASAP were concerned about the additional difficulty and complexity of the resulting analysis (Public Meeting Transcript No. 3.4 at p. 161 and Public Meeting Transcript No. 3.4 at p. 155). The approach taken by DOE was to use energy estimates developed from the engineering analysis but to validate those estimates with whole building simulation of supermarkets, which included simulation of the refrigeration system. There were four reasons for adopting this approach.
1. The energy consumption ratings provided by ANSI/ARI Standard 1200-2006 do not distinguish between energy consumption by the compressor (which may vary as a function of environmental conditions) and energy consumption by other components in the case (
2. The initial engineering analysis (see chapter 5 of the TSD) did not suggest design options that would provide significant changes to the building load relative to the commercial refrigeration system energy consumption.
3. The net interaction between the refrigeration system and HVAC energy consumption is a function of the variation in HVAC designs. HVAC system designs for food sales buildings, like supermarkets, may incorporate such features as separate dehumidification and refrigerant condenser reheat systems, which make assessing overall HVAC impact complicated. Also, detailed data on the relative prevalence
4. The interaction between the refrigeration and overall HVAC energy consumption is a function of the ratio of the total heat removed from the space by the display cases relative to the other internal loads (lighting, occupancy, and plug load) and external loads (building envelope and ventilation driven) in the building. This ratio determines the fraction of the year that the building is either in heating or cooling mode. However, the balance of refrigeration-driven space loads to the other space loads is impacted by the efficiency levels for all commercial refrigeration equipment classes, complicating the analysis of each equipment class individually. For the equipment classes with the largest shipment, which make up the largest base of equipment in a typical store and have the biggest overall impact on the space load balance, the industry-supplied efficiency curves do not provide information about changes in equipment design that could be used to assess this change in refrigeration-driven space loads.
In its validation effort, DOE used a modified version of the DOE developed DOE-2 whole-building energy analysis tool, DOE-2.2 refrigeration version (DOE-2.2R), to model whole-building energy use in a typical supermarket in five U.S. climate locations (Baltimore, Chicago, Houston, Los Angeles, and Memphis). Each of these locations has a climate that typifies one of five distinct U.S. climate zones developed by DOE for use in building energy codes development work. These five climate zones taken together encompass approximately three-fourths of the U.S. population. Annual energy use for seven equipment classes was simulated at four representative efficiency levels. Data on refrigeration loads from the engineering analysis supported the development of the energy efficiency levels analyzed. These refrigeration loads included those from internal features (
To examine the impacts of ambient relative humidity, refrigerant piping heat loss, and climate location on energy consumption of commercial refrigeration equipment, annual simulation data from the DOE 2.2R model was converted to average daily energy consumption and average daily refrigeration load comparison with the engineering analysis estimates. DOE also assessed the magnitude of interactions between the refrigeration system and the building HVAC system.
The results of the whole-building simulation showed that climate location has no influence on energy consumption of the refrigerated case components for the remote condensing equipment classes examined. For a given efficiency level, the energy consumption of case components is the same for the simulation and the engineering analysis. In addition, climate location was shown to have relatively little influence on compressor energy consumption for equipment classes with doors, where display case infiltration levels are relatively low. Climate conditions do have a significant impact on compressor energy consumption for open equipment. Compressor energy consumption is determined by total refrigeration load and compressor efficiency, both of which are affected by climate conditions for remote condensing equipment.
In general, the average daily refrigeration load from the DOE 2.2R simulations was smaller than that predicted by the engineering analysis, due to differences between the building space conditions throughout the year captured by the simulations and the space conditions used for the steady-state rating of equipment used in the engineering analysis. The actual energy consumption of the compressors was, however, generally higher than that predicted by the engineering analysis. The difference in energy consumption is due to the aforementioned differences in refrigeration loads, the fact that the simulation accounts for changes in condensing temperatures over the year for each climate, and the additional superheat loads calculated by the simulation software to bring the return refrigerant return vapor up to the compressor suction temperature conditions, which is estimated to be 65°F (the ARI rating condition used to provide rated compressor performance).
Analysis of the annual refrigeration system energy savings for each of 3 efficiency levels above the baseline level were all within 14 percent of that predicted by the engineering analysis for 6 equipment classes across all efficiency levels and climates examined. Net energy savings averaged 8 percent higher for the highest efficiency level examined. For the remote condensing VOP.RC.L equipment class the annual energy savings deviated by as much as 21 percent. No shipments for this equipment class were reported by ARI. Actual shipments, if any, are expected to be small. This suggests that for the majority of commercial refrigeration equipment, the energy savings predicted by the test procedure agreed reasonably well with the annual simulation results, although the impact of individual design options may differ.
Estimates of whole-building energy consumption and refrigeration energy consumption were examined at selected efficiency levels and climate locations to determine if the design options considered in the engineering analysis would have a significant effect on building HVAC energy use. The influence of refrigeration equipment efficiency changes on HVAC system energy use varies depending on the design option. For example, improved display case lighting efficiency would reduce the energy consumption of the refrigeration system and potentially the air-conditioning system, depending on lighting placement. Reduced conduction and radiation loads in the refrigeration equipment would, by contrast, increase the air-conditioning load and subsequent energy consumption while decreasing the heating load. For all equipment classes and efficiency levels examined, the annual whole-building energy savings was within 10 percent of that calculated for the refrigeration system alone. For the highest efficiency level examined, savings were within 1.4 percent. The simulation results suggest that the collective impact of the design options considered does not significantly affect the HVAC energy consumption.
In the energy use characterization, DOE used whole-building simulation to explore the relative energy savings of refrigeration systems and whole-building energy use for supermarkets. While there were some differences in the annual energy use predicted by the whole-building simulation and that derived in the engineering analysis, DOE concludes that these differences were generally small.
Both the engineering analysis and the whole-building simulation presumed that display case lighting operated 24 hours per day. In many applications, display case lighting may not be required 24 hours per day. DOE conducted a sensitivity analysis to explore how variation in display case lighting operating hours affected the energy savings. This sensitivity analysis was done for all equipment classes using the engineering analysis spreadsheet and the design options considered for each equipment class. No such analysis could be done using the
Because of the sensitivity of the annual energy savings to display case lighting hours and the lack of data on actual lighting use, DOE specifically seeks feedback on the assumption of 24 hours for case lighting operation. This is identified as Issue 6 under “Issues on Which DOE Seeks Comment'' in section IV.E of this ANOPR.
Also, DOE specifically seeks feedback on operation and maintenance practices for commercial refrigeration equipment, which may be prevalent in the field and may differ from standardized conditions, such as those represented in a test procedure. Operation and maintenance practices could potentially affect the energy consumption savings experienced in the field as a result of increased energy efficiency as compared to those savings estimated in the TSD's energy consumption analysis under idealized testing conditions. These factors include: compressor operation that is inefficient due to age or some other condition associated with the compressor unit; location of a commercial refrigeration unit adjacent to an outside door or in direct sunlight; operation of a room-cooling fan nearby the commercial refrigeration unit; a unit routinely stocked with products that are significantly under or over the ambient room temperature; overstocking of a unit; frequency and promptness of repair/maintenance of a unit; operation of doors during periods of high volume use; frequency of cooling coil cleaning; maintenance of sufficient space surrounding a unit for proper air circulation or proper operation of air vents; and wear/tear of, or damage to, door seals and hinges on a unit. Such factors may or may not be associated with use of a unit in the field, and thus their impacts would be difficult to analyze in a quantitative manner. Nevertheless, these factors are among those commonly highlighted in energy use reduction guidelines as important to achieving the maximum energy efficiency for the given unit. Therefore, DOE requests comment on the frequency that such factors come in to play in energy use in the field, and whether and how DOE might account for these factors in assessing the overall impacts of the candidate standards levels for commercial refrigeration equipment. This is identified as Issue 7 under “Issues on Which DOE Seeks Comment'' in section IV.E of this ANOPR.
In determining the reduction in energy consumption of commercial refrigeration equipment due to increased efficiency, DOE did not take into account a rebound effect. The rebound effect occurs when a piece of equipment that is made more efficient is used more intensively, so that the expected energy savings from the efficiency improvement do not fully materialize. Because commercial refrigeration equipment is operated 24 hours a day, 7 days a week to maintain adequate conditions for the merchandise being retailed, a rebound effect resulting from increased refrigeration energy consumption seemed unlikely. The engineering estimates of energy use also used a 24-hour lighting schedule; although a sensitivity analysis to a reduced lighting schedule was performed. It is possible that under a reduced lighting schedule, lower lighting power draw resulting from energy conservation standards could lead to equipment operation strategies with increased lighting operating hours; however, DOE has no data with which to examine this impact for the commercial refrigeration equipment market and has not taken it into account in the energy use characterization.
Additional detail on the energy use characterization can be found in chapter 7 of the TSD.
Section 345(e)(1)(A) of EPCA (42 U.S.C. 6316(e)(1)(A)) establishes a rebuttable presumption for commercial refrigeration equipment. The rebuttable presumption states that a standard is economically justified if the Secretary finds that “the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy * * * savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure * * *.'' (42 U.S.C. 6295(o)(2)(B)(iii))
To evaluate the rebuttable presumption, DOE estimated the additional cost of a more efficient, standard-compliant unit, and compared this cost to the value of the energy saved during the first year of operation of the equipment as determined by ANSI/ARI Standard 1200-2006. DOE interprets that the increased cost of purchasing a standard-compliant unit includes the cost of installing the equipment for use by the purchaser. DOE calculated the rebuttable presumption PBP, or the ratio of the value of the increased installed price above the baseline efficiency level to the first year's energy cost savings. When this PBP is less than three years, the rebuttable presumption is satisfied; when this PBP is equal to or more than three years, the rebuttable presumption is not satisfied.
Rebuttable presumption PBPs were calculated based on a distribution of installed costs and energy prices that included four types of businesses and all 50 States. The rebuttable presumption PBPs differ from the other PBPs calculated in the LCC analysis (see section II.G.14 of this ANOPR) in that they do not include maintenance or repair costs. The baseline efficiency level for the rebuttable presumption calculation is the baseline established in the engineering analysis. From the range of efficiency levels for which cost data was determined in the engineering analysis, DOE selected up to eight efficiency levels in each equipment class, including the baseline efficiency level, for the LCC and subsequent ANOPR analysis. The selection of these efficiency levels is discussed in chapter 8 and appendix F of the TSD. For each equipment class the rebuttable presumption PBP was calculated for each efficiency level higher than the baseline.
Inputs to the PBP calculation are the first seven inputs shown in Table II.12 found in section II.G.2 of this ANOPR.
Table II.11 shows the nationally averaged rebuttable presumption paybacks calculated for all equipment classes and efficiency levels. The highest efficiency level with a rebuttable presumption payback of less than three years is also shown in Table II.11 for each equipment class. For all equipment classes analyzed in the ANOPR analysis with the exception of the SOC.RC.M
The LCC and PBP analyses determine the economic impact of potential standards on consumers. The effects of standards on individual commercial consumers include changes in operating expenses (usually lower) and changes in total installed cost (usually higher). DOE analyzed the net effect of these changes for commercial refrigeration equipment, first, by calculating the changes in consumers' LCCs likely to result from a CSL as compared to a base case (no new standards). The LCC calculation considers total installed cost (includes MSP, sales taxes, distribution channel markups, and installation cost), operating expenses (energy, repair, and maintenance costs), equipment lifetime, and discount rate. DOE performed the LCC analysis from the perspective of the user of commercial refrigeration equipment.
DOE calculated the LCC for all customers as if each would purchase a new commercial refrigeration equipment unit in the year the standard takes effect. The effective date is the future date when a new standard becomes operative. Section 136(c) of EPACT 2005 amends EPCA to add section 342(c)(4), 42 U.S.C. 6313(c)(4), which directs the Secretary to issue a final rule for commercial refrigeration equipment not later than January 1, 2009, with the energy conservation standards levels effective for equipment manufactured on or after January 1, 2012. Further, the Secretary may issue, by rule, energy conservation standards levels for other types of commercial refrigeration equipment, with the standard levels effective for equipment three or more years after a final rule is published. (42 U.S.C. 6313(c)(4)(B), added by EPACT 2005, section 136(c)) Consistent with EPCA, DOE used these dates in the ANOPR analyses. Further, DOE based the cost of the equipment on projected costs in 2012. However, all dollar values are expressed in 2006 dollars. Annual energy prices are considered for the life of the commercial refrigeration equipment.
DOE also analyzed the effect of changes in operating expenses and installed costs by calculating the PBP of potential standards relative to a base case. The PBP estimates the amount of time it would take the commercial consumer to recover the incrementally higher purchase expense of more energy efficient equipment through lower operating costs. Similar to the LCC, the PBP is based on the total installed cost and the operating expenses. However, unlike the LCC, only the first year's operating expenses are considered in the calculation of the PBP. Because the PBP does not account for changes in operating expense over time or the time value of money, it is also referred to as a simple PBP. For more details on the LCC and PBP analyses, refer to chapter 8 of the ANOPR TSD.
Recognizing that each commercial building that uses commercial refrigeration equipment is unique, DOE analyzed variability and uncertainty by performing the LCC and PBP calculations for two prototype commercial buildings (stores) and four types of businesses (two types of businesses for each prototype store). The first store prototype is a “large” grocery store, which encompasses supermarkets and wholesaler/retailer multi-line stores such as “big-box” stores, “warehouse” stores, and “supercenters.” The second prototype is a “small” store, which encompasses convenience stores and small specialty stores such as meat markets, wine, beer, and liquor stores, and convenience stores associated with gasoline stations. Within a given prototype of store, various types of commercial refrigeration equipment can serve the store's refrigeration needs.
Aside from energy, the most important factors influencing the LCC and PBP analyses are related to the State to which each commercial refrigeration equipment unit is shipped. These factors include energy prices, installation cost, markup, and sales tax. The LCC analysis presented here used the predicted energy consumption based on the engineering analysis (see chapter 5 of the TSD) and reviewed in the energy use characterization (see chapter 7 of the TSD). Energy consumption of commercial refrigeration equipment calculated using this approach is not sensitive to climatic conditions, so energy consumption in the LCC analysis does not vary by geographical location.
For each efficiency level analyzed, the LCC analysis requires input data for the total installed cost of the equipment, the operating cost, and the discount rate. Table II.12 summarizes the inputs and key assumptions used to calculate the economic impacts of various efficiency levels. A more detailed discussion of the inputs follows.
The baseline MSP is the price charged by manufacturers to either a wholesaler/distributor or very large customer for equipment meeting existing minimum efficiency (or baseline) standards. The MSP includes a markup that converts the MPC to MSP. DOE obtained the baseline MSPs through industry supplied efficiency-level data supplemented with a design-option analysis. Refer to chapter 5 of the TSD for details. MSPs were developed for equipment classes consisting of eight possible equipment families, two possible condensing unit configurations (remote condensing and self-contained) and three possible rating temperatures. Not all covered equipment classes have significant actual shipments (see chapter 3 of the TSD). The LCC and PBP analyses have been carried out on a set of 15 equipment classes identified earlier.
DOE was not able to identify data on relative shipments for equipment classes by efficiency level, nor were equivalent data found by DOE in the literature or studies examined by DOE. For the equipment for which DOE performed a design option analysis as the basis for the engineering analysis, DOE designated the highest-energy-use equipment as Level 1, and selected this as the baseline equipment.
The standard-level MSP increase is the change in MSP associated with producing equipment at lower energy consumption levels associated with higher standards. DOE developed MSP increases associated with decreasing equipment energy consumption (or higher efficiency) levels through a combination of energy consumption level and design-option analyses. Refer to chapter 5 of the TSD for details. MSP increases as a function of equipment energy consumption were developed for each of the 15 equipment classes. Although the engineering analysis produced up to 11 energy consumption levels, depending on equipment type, only up to 8 selected energy consumption levels were used in the LCC and PBP analyses.
As discussed earlier, overall markups are based on one of three distribution channels, as well as whether the equipment is being purchased for the new construction or the replacement market. Based on input received by DOE, approximately 7 percent of equipment purchased by end-use customers is from wholesaler/distributors, 7 percent is from mechanical contractors, and 86 percent is through national accounts. DOE's understanding is that most equipment replacements are done through store remodels (as opposed to equipment failure), and that the distribution channels and installation process are similar for the new and replacement markets. Available information suggests that the fraction of equipment purchased through the distribution channels is the same for new and replacement equipment.
DOE derived installation costs for commercial refrigeration equipment from data provided in RS Means Mechanical Cost Data.
As described earlier, the total installed cost is the sum of the equipment price and the installation cost. DOE derived the customer equipment price for any given standard level by multiplying the baseline MSP by the baseline markup and adding to it the product of the incremental MSP and the incremental markup. Because MSPs, markups, and the sales tax can all take on a variety of values depending on location, the resulting total installed cost for a particular standard level will not be a single-point value, but rather a distribution of values.
The electricity consumed by the commercial refrigeration equipment was based on the engineering analysis estimates as described previously in section II.C.1 after the whole-building simulations validation described in section II.E.
Electricity prices are necessary to convert the electric energy savings into energy cost savings. DOE received several comments on the development of electricity prices for its life cycle cost analysis. In its Framework Document, DOE suggested the use of average commercial electric prices. Comments received from Southern Company suggested that due to high load factors, the price of electricity for commercial refrigeration customers would be lower than the commercial average. (Southern Company No. 3.4 at p. 170) Pacific Gas & Electric Company (PG&E) commented it has a heavy ratcheting charge and is converting customers to time-of-use metering. The very high coincident demand for commercial refrigeration units could result in DOE underestimating the cost of electricity. (PG&E No. 3.4 at p. 171) PG&E also questioned how DOE would handle the time dependent valuation of energy. (PG&E No. 3.4 at p. 191) Southern Company responded that customers in its region were not exposed to marginal rates because it has cost-based rates. (Southern Company No. 3.4 at p. 193) Both groups supported the use of a sensitivity analysis by DOE in this area. In another area of discussion, ACEEE also commented that
DOE decided to use average electricity prices for four classes of commercial refrigeration equipment customers on a State-by-State basis. This approach will include the regional variations in energy prices and provide for estimated electricity prices suitable for the target market, yet reduce the analysis complexity. An effort to build tariff-based costs would have significantly increased the complexity and time needed for the analysis and it is not clear whether the results of the analysis will be improved. The development and use of State-average electricity prices by building type is described below and in more detail in chapter 8 of the TSD.
Because of the wide variation in electricity consumption patterns, wholesale costs, and retail rates across the country, it is important to consider regional differences in electricity prices. DOE used average effective commercial electricity prices at the State level from the Energy Information Administration (EIA) publication,
The electricity price trend provides the relative change in electricity prices for future years out to the year 2030. Estimating future electricity prices is difficult, especially considering that there are efforts in many States throughout the country to restructure the electricity supply industry. DOE applied the
The equipment repair cost is the cost to the consumer for replacing or repairing components in the commercial refrigeration equipment that have failed. DOE based the annualized repair cost for baseline efficiency equipment on the following expression:
Because data were not available for how the repair costs vary with equipment efficiency, DOE held repair costs constant as the default scenario for the LCC and PBP analyses.
DOE estimated the annualized maintenance costs for commercial refrigeration equipment from data in RS Means Facilities Maintenance & Repair Cost Data. RS Means provides estimates on the person-hours, labor rates and materials required to maintain commercial refrigeration equipment on a semi-annual basis. DOE used a single figure of $156/year (2006$) for preventative maintenance for all classes of commercial refrigeration equipment. Because data were not available for how the maintenance costs vary with equipment efficiency, DOE held maintenance costs constant even as equipment efficiency increased. Lamp replacement and other lighting maintenance activities are required maintenance for commercial refrigeration equipment, which DOE considered to be separate from preventative maintenance, and were not itemized in the preventative maintenance activities described by RS Means. Different commercial refrigeration equipment classes have different numbers of lamps (and ballasts) and many of the efficiency options considered in DOE's engineering analysis involved changes to the lighting configuration (lamp, ballast, or use of light emitting diode (LED) lighting systems). Because the lighting configurations can vary by energy consumption level, DOE estimated the relative maintenance costs for lighting by each case type for which a design-option analysis was performed. The methodology used was to estimate the frequency of failure and replacement of individual lighting components, to estimate the cost of replacement in the field, and to develop an annualized maintenance cost based on the sum of the total lighting maintenance costs (in 2006$) over the estimated life of the equipment divided by the estimated life of the equipment.
Costs for fluorescent lamp and ballast replacements were based on review of the original equipment manufacturer (OEM) costs used in the engineering analysis, RS Means estimates and cost data from Grainger, Inc., and previous studies. DOE estimated the costs of field replacement using labor cost hours from RS Means Electrical Cost Data for typical lamp or ballast replacement for other lighting fixtures, using a 150 percent multiplier on OEM costs for lamps and ballasts (provided in the engineering analysis spreadsheets) to reflect retail pricing.
Fluorescent lamp and ballast technology is mature, so DOE made no change in inflation-adjusted costs for these components. However, because of rapid technological improvement, costs for LED lamps are declining. DOE estimated that costs for replacing LED lighting fixtures (believed to occur 6 years after the effective date of the standard) are 140 percent of the OEM installed cost of LED lighting fixtures today (in 2006$). These LED fixture replacement costs represent a 30 percent reduction to the current costs for in-the-field replacement. DOE recognizes that both life and cost estimates for LED replacement are speculative and believes it has taken a conservative approach to estimating price reduction over time for this technology. Overhead and profit factors from RS Means were not considered.
DOE defines lifetime as the age when a commercial refrigeration equipment unit is retired from service. DOE based equipment lifetime on discussions with industry experts and other stakeholders, and concluded that a typical lifetime of 10 years is appropriate for commercial refrigeration equipment. Commercial refrigeration equipment units are typically replaced when stores are renovated—about every 10 years—which is before the commercial refrigeration equipment units would have physically worn out. Because of this, there is a used-equipment market for commercial refrigeration equipment. DOE understands, however, that the salvage value to the original purchaser is very low and thus this has not been taken into account in the LCC. Chapter 3 of the TSD, Market and Technology Assessment, contains a discussion of equipment life data and the sources of such data.
DOE understands that the actual lifetime of a commercial refrigeration equipment unit in the field might vary from the estimated average 10-year lifetime, to some degree, by equipment class, variations associated with components and manufacturing methods, as well as store type where the unit is placed in service. Nevertheless, the 10-year lifetime estimate is an important benchmark for testing to a standard level of performance, making comparisons of different units for purchasing decisions, and making a reasonable quantitative analysis of the impacts that could result from different standard levels of efficiency. Therefore, DOE specifically requests feedback on the lifetime of commercial refrigeration equipment and whether, in fact, this is a significant issue. Where the lifetime data indicate a substantial variation from the assumed 10-year lifetime, DOE will perform a sensitivity analysis of this variable in the LCC and NES analyses and may adjust the best estimate of equipment lifetime as well. In particular, DOE seeks comment on how long these units are typically maintained in service, on average, either for all equipment covered under this rulemaking or by equipment class and store type. Also, DOE seeks comment on the existence of used-equipment markets for commercial refrigeration equipment, and the importance of considering such markets in its analysis. This is identified as Issue 8 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
The discount rate is the rate at which future expenditures are discounted to establish their present value. DOE received comments on the development of discount rates at the Framework Public Meeting. FPA suggested that DOE's analysis should consider discount rates for convenience stores separately from other food stores, but considered superstores in the same general market as the traditional grocery store. (FPA No. 3.4 at p. 179) ARI suggested that DOE consider developing discount rates explicitly for supercenters. (ARI No. 3.4 at p. 179)
DOE derived the discount rates for the LCC analysis by estimating the cost of capital for companies that purchase commercial refrigeration equipment. The cost of capital is commonly used to estimate the present value of cash flows to be derived from a typical company project or investment. Most companies use both debt and equity capital to fund investments, so their cost of capital is
DOE used a sample of 23 companies to represent the purchasers of commercial refrigeration equipment. For each company in the sample, DOE derived the cost of debt, percent debt financing, and systematic company risk from information provided at the Damodaran Online Web site. It estimated the cost of debt financing from the long-term government bond rate (4.39 percent) and the standard deviation of the stock price. The cost of capital for small, independent grocers, convenience store franchisees, gasoline station owner-operators, and others with more limited access to capital is more difficult to determine. Individual credit-worthiness varies considerably, and some franchisees have access to the financial resources of the franchising corporation. However, personal contacts with a sample of commercial bankers yielded an estimate for the small operator weighted cost of capital of about 200 to 300 basis points (2 percent to 3 percent) above the rates for large grocery chains. A central value equal to the weighted average of large grocery chains, plus 2.5 percent, was used for small operators. Deducting expected inflation from the cost of capital provides the estimates of the real discount rate by ownership category. The average after-tax discount rate, weighted by the percentage shares of total purchases of commercial refrigeration equipment, is 4.76 percent for large grocery stores, 5.66 percent for multi-line retailers, and 7.26 percent for convenience stores and convenience stores associated with gasoline stations.
The PBP is the amount of time it takes the customer to recover the incrementally higher purchase cost of more energy efficient equipment as a result of lower operating costs. Numerically, the PBP is the ratio of the increase in purchase cost (i.e., from a less efficient design to a more efficient design) to the decrease in annual operating expenditures. This type of calculation is known as a “simple” PBP, because it does not take into account changes in operating cost over time or the time value of money, that is, the calculation is done at an effective discount rate of zero percent.
The equation for PBP is:
PBPs are expressed in years. PBPs greater than the life of the equipment means that the increased total installed cost of the more efficient equipment is not recovered in reduced operating costs for the more efficient equipment.
The data inputs to PBP analysis are the total installed cost of the equipment to the customer for each energy consumption level and the annual (first year) operating costs for each energy consumption level. The inputs to the total installed cost are the equipment price and the installation cost. The inputs to the operating costs are the annual energy cost, the annual repair cost, and the annual maintenance cost. The PBP uses the same inputs as the LCC analysis, except that electricity price trends and discount rates are not required. Since the PBP is a “simple” (undiscounted) payback, the required electricity cost is only for the year in which a new energy conservation standard is to take effect—in this case, the year 2012. The electricity price used in the PBP calculation of electricity cost was the price projected for 2012, expressed in 2006$, but not discounted to 2006. Discount rates are not used in the PBP calculation.
This section presents the LCC and PBP results for the energy consumption levels analyzed. Because the values of most inputs to the LCC analysis are uncertain, DOE represents them as a distribution of values rather than a single-point value. Thus, DOE derived the LCC results also as a distribution of values.
DOE provides a summary of the change in LCC from the baseline by percentile groupings of the distribution of results for each of the equipment classes in chapter 8 and appendix G of the TSD. A sample for one equipment class (VOP.RC.M) is shown in Table II.13. Table II.13 also shows the mean LCC savings and the percent of units with LCC savings at each of the efficiency levels.
As an example of how to interpret the information in Table II.13, here is a review of the results for the VOP.RC.M equipment class. The efficiency Level 4 in Table II.13 (row 3) shows that the change in LCC (zero percentile column) is a minimum saving of $473. For 90 percent of the cases studied (90th percentile), the change in LCC is a reduction of $2,127 or less. The largest reduction in LCC is $3,036 (100th percentile). The mean change in LCC is a net savings of $1,239. The last column shows that 100 percent of the sample have LCC savings (
Table II.14 provides the national average life cycle cost savings calculated for each efficiency level when compared to the baseline efficiency (Level 1) for all equipment classes. Review of Table II.14 shows that every efficiency level analyzed generated national average life-cycle cost savings compared with the baseline efficiency level. It should be pointed out that 100 percent of the units analyzed have positive LCC savings.
DOE specifically seeks feedback on the validity of selecting Level 1 as the baseline in the LCC analysis. Since higher efficiency equipment are known to be sold into the market, the LCC savings estimates presented above represent overestimates with respect to the life-cycle savings anticipated for base case efficiencies higher than Level 1. DOE seeks input on whether a distribution of efficiencies should be used for the LCC analysis baseline (instead of a single efficiency level), and if so, what data could be used to populate this distribution. This is identified as Issue 9 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
Table II.15 summarizes the PBP results for each of the efficiency levels for the VOP.RC.M equipment class. Results are summarized for PBP by percentile groupings of the distribution of results. The chart also shows the mean PBP for each efficiency level.
Table II.16 provides the national average payback calculated for each efficiency level when compared to the baseline efficiency level (Level 1) for all equipment classes. Table II.16 also shows the percentage of units reporting PBPs of less than three years. The results of the analysis shows that purchases of higher efficiency levels resulted in PBPs (with respect to purchase of baseline efficiency units) of less than four years for any of the efficiency levels considered for any equipment class.
DOE emphasizes that the PBPs shown in Table II.16 as well as the rebuttable PBPs shown in Table II.11 take into account the cumulative impact of all technologies used in a design option to reach a specific energy efficiency level when compared to the baseline equipment. Shorter PBP resulting from the most cost-effective technologies can offset longer PBP from less cost-effective technologies to yield a low overall PBP for the design option. For this reason, the choice of baseline efficiency level affects the PBP for higher efficiency levels. The LCC spreadsheet allows the user to select alternate baseline efficiency levels for each equipment class and calculate the LCC savings and PBP for all higher levels compared to the selected baseline.
Table II.17 illustrates the impact of the selection of baseline level on the VCT.RC.M equipment class for the supermarket business type and using national average energy prices. Note that the values shown in Table II.17 differ from the values shown in Table II.14 since the values in Table II.17 do not represent a national average developed through the weighting of all business types and fuel costs. Nevertheless, they serve to illustrate the impact of the selected baseline efficiency level on LCC savings and PBP. The LCC savings and PBP are shown for four alternate baseline efficiency levels: Level 1, Level 2, Level 3 and Level 4. As the baseline efficiency is moved from Level 1 to Level 4, the life-cycle-cost savings are correspondingly reduced for each of the higher efficiency levels. The efficiency level with the maximum life-cycle-cost savings (level 6) is, however, the same regardless of choice of baseline level. Selection of the baseline level at level 6 would show no life-cycle-cost savings for higher levels.
The calculated PBP also changes with selection of alternate baseline efficiency levels. As the baseline efficiency is moved from Level 1 to Level 4, the PBP for each of the higher efficiency levels, relative to the selected baseline, increases, with the Level 7 PBP moving from 3.9 years—using Level 1 as the baseline efficiency level—to 6.2 years using Level 4 as the baseline efficiency level.
DOE provided a sensitivity analysis of the life-cycle-cost savings as well as the PBP to the choice of baseline efficiency level in Chapter 8 of the TSD. DOE presents these findings to facilitate stakeholder review of the LCC and PBP analyses. DOE seeks information and comments relevant to the assumptions, methodology, and results of this analysis. See chapter 8 of the TSD for additional detail on the LCC and PBP analyses.
This section presents DOE's shipments analysis, which is an input to the NIA (section II.I) and MIA (section II.K). DOE will undertake the MIA after the ANOPR is published, and will report the results of the MIA in the NOPR.
The results of the shipments analysis are driven primarily by historical shipments data for the 15 equipment classes of commercial refrigeration equipment under consideration. The model estimates that, in each year, the existing stock of commercial refrigeration equipment either ages by one year or is worn out and replaced. In addition, new equipment can be shipped into new commercial floor space, and old equipment can be removed through demolitions. DOE chose to analyze all efficiency levels analyzed in the LCC in the NIA. Because DOE is assessing impacts presuming each level analyzed represents a possible standard level, DOE refers to the efficiency levels analyzed in the NIA as “candidate standard levels” (CSLs). Shipments forecasts were determined for all of the CSLs analyzed in the NIA and NPV analysis.
The shipments analysis is a description of commercial refrigeration equipment stock flows as a function of year and age. While there are 15 equipment classes, the shipment analysis treats each category of equipment independently and without coupling between them. DOE formulated the equations used in the analysis as updates of the distribution of stock in any given year, as a function of age, to the following year using the following steps: (1) DOE first converted the equipment units to linear feet of display space cooled by those units by taking the national statistics on sales of equipment and calculating equipment capacity per linear foot of retail grocery building display space; (2) DOE used this calculation of existing stock, and the average age of the equipment, as a basis for calculating replacement sales; (3) DOE subtracted replacement sales from historical total sales statistics to calculate new sales of commercial refrigeration equipment; (4) DOE forecast new sales as a function of new construction of retail food sales space; (5) DOE recorded sales of new and replacement equipment by the year sold, and depreciated each annual vintage over the estimated life of the equipment; and (6) DOE allocated sales in each year to the 15 equipment classes in proportion to their relative historical sales.
Table II.18 shows the results of the shipments analysis for the 15 commercial refrigeration equipment classes for the base case (baseline efficiency level or Level 1). As equipment purchase price increases with higher efficiency levels, a drop in shipments could be expected relative to the base case. However, as annual energy consumption is reduced, there is potentially a countering effect of increased equipment sales due to more frequent installations and use of commercial refrigeration equipment by retailers (a potential rebound effect). Although there is a provision in the spreadsheet for a change in projected shipments in response to efficiency level increases (or energy consumption level decreases), DOE has no information with which to calibrate such a relationship. Therefore, for the ANOPR analysis, DOE presumed that the shipments do not change in response to the changing CSLs.
Additional details on the shipments analysis can be found in chapter 9 of the TSD.
The NIA assesses future NES and the national economic impacts of CSLs. The analysis measures economic impacts using the NPV metric (
DOE determined national annual energy consumption as the product of the annual energy consumption per commercial refrigeration equipment unit and the number of commercial refrigeration equipment units of each vintage. This approach accounts for differences in unit energy consumption from year to year. Cumulative energy savings are the sum of the annual NES determined over the period of analysis. DOE calculated net economic savings each year as the difference between total operating cost savings and increases in total installed costs. Cumulative savings are the sum of the annual NPV.
Over time, in the standards case, more efficient equipment gradually replaces less efficient equipment. This affects the calculation of both the NES and NPV, both of which are a function of the total number of units in use and their efficiencies, and thus are dependent upon annual shipments and the lifetime of equipment. Both calculations start by using the estimate of shipments and the quantity of units in service, which are derived from the shipments model. With regard to the estimation of NES, because more efficient commercial refrigeration equipment units gradually replace less efficient ones, the energy per unit of capacity used by the commercial refrigeration equipment in service gradually decreases in the standards case relative to the base case. To estimate the total energy savings for each candidate efficiency level, DOE first calculated the national site energy consumption (site energy is the energy directly consumed by the units in operation) for commercial refrigeration equipment each year, beginning with the expected effective date of the standards (2012). This calculation was done for the base case forecast and the standards case forecast. Second, DOE determined the annual site energy savings, which is the difference between site energy consumption in the base case and in the standards case. Third, DOE converted the annual site energy savings into the annual amount of energy saved at the source of electricity generation (the source energy). Finally, DOE summed the annual source energy savings from 2012 to 2042 to calculate the total NES for that period. DOE performed these calculations for each CSL.
A key component of DOE's estimates of NES and NPV are the energy efficiencies for shipped equipment that it forecasts over time for the base case (without new standards) and for each of the standards cases. The forecasted efficiencies represent the distribution of energy efficiency of the equipment under consideration that is shipped over the forecast period (
The annual per-unit energy consumption is the site energy consumed by a commercial refrigeration equipment unit per year. The annual energy consumption is directly tied to the efficiency of the unit. Thus, knowing the efficiency of a commercial refrigeration equipment unit determines the corresponding annual energy consumption. DOE determined annual forecasted market shares by efficiency level that, in turn, enabled a determination of shipment-weighted annual energy consumption values.
Because no data were available on market shares broken down by efficiency level, DOE determined market shares by efficiency level for commercial refrigeration equipment based on its own analysis. First, DOE converted 2005 shipment information by equipment class into market shares by equipment class, and then adapted a cost-based method similar to that used in the NEMS to estimate market shares for each equipment class by efficiency level. This cost-based method relied on cost data developed in the engineering and life-cycle cost analyses as well as economic purchase criteria data taken directly from NEMS. Then, from those market shares and projections of shipments by equipment class, DOE developed the future efficiency scenarios for a base case (
DOE developed base case efficiency forecasts based on the estimated market
For its determination of standards case forecasted efficiencies, DOE used a “roll-up” scenario to establish the market shares by efficiency level for the year that standards become effective (
DOE specifically seeks feedback on its basis for the forecasted base case and standards case efficiencies and its prediction on how standards impact efficiency distributions in the year that standards take effect. This is identified as Issue 11 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR. In addition, DOE specifically seeks feedback on whether higher standard levels in specific equipment classes are likely to cause commercial refrigeration equipment customers to shift to using other, less-efficient equipment classes for displaying merchandise. This is identified as Issue 12 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
The difference in shipments by equipment efficiency level between the base and standards cases was the basis for determining the reduction in per-unit annual energy consumption that could result from new standards. The commercial refrigeration equipment stock in a given year is the total linear footage of commercial refrigeration equipment shipped from earlier years that survive in the given year. The NES spreadsheet model keeps track of the total linear footage of commercial refrigeration equipment units shipped each year. For purposes of the ANOPR NES and NPV analyses, DOE estimated that approximately 10 percent of the existing commercial refrigeration equipment units are retired each year (based on a 10-year average lifetime) and that for units shipped in 2042, any units still remaining at the end of 2052 are replaced.
The site-to-source conversion factor is the multiplicative factor used for converting site energy consumption, expressed in kWh, into primary or source energy consumption, expressed in quads (quadrillion Btu). DOE used annual site-to-source conversion factors based on U.S. average values for the commercial sector, calculated from
To estimate NPV, DOE calculated the net impact each year as the difference between total operating cost savings (including electricity, repair, and maintenance cost savings) and increases in total installed costs (which consists of MSP, sales taxes, distribution channel markups, and installation cost). DOE calculated the NPV of each CSL over the life of the equipment, using three steps. First, DOE determined the difference between the equipment costs under the CSL case and the base case, to get the net equipment cost increase resulting from the CSL. Second, DOE determined the difference between the base case operating costs and the CSL operating costs, to get the net operating cost savings from the CSL. Third, DOE determined the difference between the net operating cost savings and the net equipment cost increase to get the net savings (or expense) for each year. DOE then discounted the annual net savings (or expenses) for commercial refrigeration equipment purchased on or after 2012 to the year 2007, and summed the discounted values to provide the NPV of a CSL. An NPV greater than zero shows net savings (
Table II.19 summarizes the NES and NPV inputs to the NES spreadsheet model. For each input a brief description of the data source is given.
Below are the NES results for each efficiency level considered for the 15 equipment classes of commercial refrigeration equipment analyzed. Results are cumulative to 2042 and are shown as primary energy savings in quads. Inputs to the NES spreadsheet model are based on weighted-average values, yielding results that are discrete point values, rather than a distribution of values as in the LCC analysis.
Table II.20 shows the NES results for the CSLs analyzed for each equipment class of commercial refrigeration equipment. DOE based all the results on electricity price forecasts from the
Below are the NPV results for the CSLs considered for the 15 equipment classes of commercial refrigeration equipment. Results are cumulative and are shown as the discounted value of these savings in dollar terms. The present value of increased total installed costs is the total installed cost increase (
Savings are decreases in operating costs (including electricity, repair, and maintenance) associated with the higher energy efficiency of commercial refrigeration equipment units purchased in the standards case compared to the base case. Total operating cost savings are the savings per unit multiplied by the number of units of each vintage (
Table II.21 shows the NPV results for the standard levels considered for commercial refrigeration equipment based upon a seven percent discount rate. DOE based all results on electricity price forecasts from the
Table II.22 provides the NPV results based on the three percent discount rate and electricity price forecasts from the
The LCC sub-group analysis evaluates impacts of standards on identifiable groups of customers, such as customers of different business types, which may be disproportionately affected by standards. In the NOPR phase of this rulemaking, DOE will analyze the LCCs and PBPs for customers that fall into those groups. The analysis will determine whether any particular group of commercial consumers would be adversely affected by any of the CSLs.
Also, DOE plans to examine variations in energy prices and energy use that might affect the NPV of a standard to customer sub-populations. To the extent possible, DOE will obtain estimates of the variability of each input parameter and consider this variability
DOE will determine the effect on customer sub-groups using the LCC spreadsheet model. The spreadsheet model used for the LCC analysis can be used with different data inputs. The standard LCC analysis includes various customer types that use commercial refrigeration equipment. DOE can analyze the LCC for any sub-group, such as a convenience store, by using the LCC spreadsheet model and sampling only that sub-group. Details of this model are explained in section II.G, which describes the LCC and PBP analyses. DOE will be especially sensitive to purchase price increases (“first-cost” increases) to avoid negative impacts on identifiable population groups such as small businesses (
Although business income and annual revenues are not known for the types of businesses analyzed in the LCC analysis, the floor space occupied by a business may be an indicator of its annual income. If this is generally true, then DOE will be able to perform sub-group analyses on smaller businesses. As stated earlier, DOE can also use SBA data for businesses with 750 or fewer employees as a proxy for “smaller businesses.”
The purpose of the manufacturer impact analysis is to identify the likely impacts of energy conservation standards on manufacturers. DOE will conduct this analysis with input from manufacturers and other interested parties and will apply this methodology to its evaluation of standards. DOE will also consider financial impacts and a wide range of quantitative and qualitative industry impacts that might occur following the adoption of a standard. For example, a particular standard level, if adopted by DOE, could require changes to commercial refrigeration equipment manufacturing practices. DOE will identify and understand these impacts through interviews with manufacturers and other stakeholders during the NOPR stage of its analysis.
Recently, DOE announced changes to the format of the manufacturer impact analysis through a report submitted to Congress on January 31, 2006 (as required by section 141 of EPACT 2005), entitled “Energy Conservation Standards Activities.” Previously, DOE did not report any manufacturer impact analysis results during the ANOPR phase; however, under this new format, DOE has collected, evaluated, and reported preliminary information and data in the ANOPR (see section II.K.6 of this ANOPR). Such preliminary information includes the anticipated conversion capital expenditures by efficiency level and the corresponding anticipated impacts on jobs. DOE solicited this information during the ANOPR engineering analysis manufacturer interviews and reported the results in the preliminary manufacturer impact analysis (see chapter 12 of the TSD).
DOE conducts the manufacturer impact analysis in three phases, and further tailors the analytical framework based on stakeholder comments. In Phase I, an industry profile is created to characterize the industry, and a preliminary manufacturer impact analysis is conducted to identify important issues that require consideration. Results of the Phase I analysis are presented in the ANOPR TSD. In Phase II, an industry cash flow model and an interview questionnaire are prepared to guide subsequent discussions. In Phase III, manufacturers are interviewed, and the impacts of standards are assessed both quantitatively and qualitatively. Industry and sub-group cash flow and net present value are assessed through use of the Government Regulatory Impact Model (GRIM). Then impacts on competition, manufacturing capacity, employment, and regulatory burden are assessed based on manufacturer interview feedback and discussions. Results of the Phase II and Phase III analyses are presented in the NOPR TSD. For more detail on the manufacturer impact analysis, refer to chapter 12 of the TSD.
Many of the analyses described above provide important information applicable to the MIA. Such information includes manufacturing costs and prices from the engineering analysis, retail price forecasts, and shipments forecasts. DOE will supplement this information with company financial data and other information gathered during interviews its contractor conducts with manufacturers. This interview process plays a key role in the manufacturer impact analysis because it allows interested parties to privately express their views on important issues. To preserve confidentiality, DOE aggregates these perspectives across manufacturers, creating a combined opinion or estimate for DOE. This process enables DOE to incorporate sensitive information from manufacturers in the rulemaking process without specifying precisely which manufacturer provided a certain set of data.
DOE conducts detailed interviews with manufacturers to gain insight into the range of potential impacts of standards. During the interviews, DOE typically solicits both quantitative and qualitative information on the potential impacts of efficiency levels on sales, direct employment, capital assets, and industrial competitiveness. DOE prefers an interactive interview process, rather than a written response to a questionnaire, because it helps clarify responses and identify additional issues. Before the interviews, DOE will circulate a draft document showing the estimates of the financial parameters based on publicly available information. DOE will solicit comments and suggestions on these estimates during the interviews.
DOE will ask interview participants to identify any confidential information that they have provided, either orally or in writing. DOE will consider all information collected, as appropriate, in its decision-making process. However, DOE will not make confidential information available in the public record. DOE also will ask participants to identify all information that they wish to have included in the public record, but that they do not want to have associated with their interview. DOE will incorporate this information into the public record, but will report it without attribution.
DOE will collate the completed interview questionnaires and prepare a summary of the major issues. For more detail on the methodology used in the manufacturer impact analysis, refer to chapter 12 of the TSD.
The industry cash flow analysis relies primarily on the GRIM. DOE uses the GRIM to analyze the financial impacts of more stringent energy conservation standards on the industry.
The GRIM analysis uses several factors to determine annual cash flows from a new standard: Annual expected revenues; manufacturer costs (including COGS, depreciation, research and development, selling, general and administrative expenses); taxes; and conversion capital expenditures. DOE compares the results against base case projections that involve no new standards. The financial impact of new standards is the difference between the two sets of discounted annual cash flows. For more information on the industry cash flow analysis, refer to chapter 12 of the TSD.
Industry cost estimates are not adequate to assess differential impacts among sub-groups of manufacturers. For example, small and niche manufacturers, or manufacturers whose cost structure differs significantly from the industry average, could experience a more negative impact. Ideally, DOE would consider the impact on every firm individually; however, it typically uses the results of the industry characterization to group manufacturers exhibiting similar characteristics.
During the interview process, DOE will discuss the potential sub-groups and sub-group members it has identified for the analysis. DOE will encourage the manufacturers to recommend sub-groups or characteristics that are appropriate for the sub-group analysis. For more detail on the manufacturer sub-group analysis, refer to chapter 12 of the TSD.
DOE must also consider whether a new standard is likely to reduce industry competition, and the Attorney General must determine the impacts, if any, of any reduced competition. DOE will make a determined effort to gather and report firm-specific financial information and impacts. The competitive analysis will focus on assessing the impacts on smaller manufacturers. DOE will base this assessment on manufacturing cost data and on information collected from interviews with manufacturers. The manufacturer interviews will focus on gathering information to help assess asymmetrical cost increases to some manufacturers, increased proportions of fixed costs that could increase business risks, and potential barriers to market entry (
DOE recognizes and seeks to mitigate the overlapping effects on manufacturers of new or revised DOE standards and other regulatory actions affecting the same equipment. DOE will analyze and consider the impact on manufacturers of multiple, equipment-specific regulatory actions.
Based on its own research and discussions with manufacturers, DOE identified several regulations relevant to commercial refrigeration equipment, including: existing or new standards for commercial refrigeration equipment, phaseout of hydrochlorofluorocarbons and foam insulation blowing agents, standards for other equipment made by commercial refrigeration equipment manufacturers, State energy conservation standards, and international energy conservation standards. DOE will study the potential impacts of these cumulative burdens in greater detail during the MIA conducted during the NOPR phase.
DOE received views from manufacturers about what they perceived to be the possible impact of potential new standards on their future profitability. As stated by manufacturers, a new energy conservation standard has the potential to impact financial performance in several different ways. The capital investment needed to upgrade or redesign equipment and equipment platforms before they have reached the end of their useful life can require conversion costs that otherwise would not be expended, resulting in stranded investments. In addition, more stringent standards can result in higher per-unit costs that may deter some customers from buying higher-margin units with more features, thereby decreasing manufacturer profitability.
DOE estimates that a commercial refrigeration equipment production line would have a life cycle of approximately 15 to 20 years in the absence of standards. During that period, manufacturers would not make major changes that altered the underlying platforms. Thus, a standard that took effect and resulted in a major equipment platform redesign before the end of the platform's life would strand a portion of the earlier capital investments.
DOE asked manufacturers what level of conversion costs they anticipated if energy conservation standards were to take effect. In general, manufacturers expected only conversion costs associated with redesigning of insulation foaming fixtures. One manufacturer estimated this to be approximately $10 million in new fixtures, research, and testing. Manufacturers indicated there would not be a significant amount of stranded assets because of standards, but any stranded assets that did exist would be primarily in the insulation foaming fixtures. The manufacturers also indicated that standards would have little effect on capacity and utilization.
The impact of new energy conservation standards on employment is an important consideration in the rulemaking process. To assess how domestic employment patterns might be affected by new energy conservation standards for commercial refrigeration equipment, DOE posed several questions related to this topic to manufacturers.
Over the past several years, some commercial refrigeration equipment manufacturers have moved a portion of their production out of the United States, primarily driven by concerns about profitability and the opportunity for lower labor costs. Mexico is the most common location for U.S. manufacturers to establish new production capacity, since it offers low labor rates relative to the United States and proximity to the U.S. market. Manufacturers indicated that they anticipate new standards will accelerate the trend to manufacture commercial refrigeration equipment outside of the United States. Further, new standards may accelerate the rate at which commercial refrigeration equipment production is moved to Mexico because if manufacturers need to make large capital investments to produce redesigned equipment platforms, they have strong financial incentives to invest in a location with lower labor costs.
Manufacturers indicated that new standards could cause them to exit one or more portions of the markets affected by the standards. Thus, standards could affect the degree of industry consolidation, that is, the degree to which a limited number of companies dominate a market. At present, four companies account for a large majority of commercial refrigeration equipment sales.
DOE asked manufacturers to what degree they expected industry consolidation to occur in the absence of standards. In general, manufacturers felt that there would be little industry consolidation in the future. Historically, the commercial refrigeration equipment industry has not seen extensive consolidation, although several manufacturers have been bought and sold by parent companies in the past.
For more preliminary results for the manufacturer impact analysis such as other impacts on financial performance, impacts on utility and performance, and
The utility impact analysis estimates the effects on the utility industry of reduced energy consumption due to improved appliance efficiency. The analysis compares modeling results for the base case with results for each candidate standards case. It consists of forecasted differences between the base and standards cases for electricity generation, installed capacity, sales, and prices.
To estimate these effects of proposed commercial refrigeration equipment standard levels on the electric utility industry, DOE intends to use a variant of the EIA's NEMS.
The use of NEMS-BT for the utility impact analysis offers several advantages. As the official DOE energy forecasting model, it relies on a set of assumptions that are transparent and have received wide exposure and commentary. NEMS-BT allows an estimate of the interactions between the various energy supply and demand sectors and the economy as a whole. The utility impact analysis will determine the changes in installed capacity and generation by fuel type produced by each CSL, as well as changes in electricity sales to the commercial sector.
DOE conducts the utility analysis as a policy deviation from the
The electric utility industry analysis will consist of NEMS-BT forecasts for generation, installed capacity, sales, and prices. The NEMS-BT provides reference case load shapes for several end uses, including commercial refrigeration. The model uses predicted growth in demand for each end use to build up a projection of the total electric system load growth for each region, which it uses in turn to predict the necessary additions to capacity. The NEMS-BT accounts for the implementation of energy conservation standards by decrementing the appropriate reference case load shape. DOE determines the size of the decrement using data for the per-unit energy savings developed in the LCC and PBP analyses (see chapter 8 of the TSD) and the forecast of shipments developed for the NIA (see chapter 9 of the TSD).
The predicted reduction in capacity additions is sensitive to the peak load impacts of the standard. DOE will investigate the need to adjust the hourly load profiles that include this end use in NEMS-BT. Since the
DOE estimates the impacts of standards on employment for equipment manufacturers, relevant service industries, energy suppliers, and the economy in general. Both indirect and direct employment impacts are covered. Direct employment impacts would result if standards led to a change in the number of employees at manufacturing plants and related supply and service firms. Direct impact estimates are covered in the MIA.
Indirect employment impacts are impacts on the national economy other than in the manufacturing sector being regulated. Indirect impacts may result both from expenditures shifting among goods (substitution effect) and changes in income which lead to a change in overall expenditure levels (income effect). DOE defines indirect employment impacts from standards as net jobs eliminated or created in the general economy as a result of increased spending driven by the increased equipment prices and reduced spending on energy.
DOE expects new standards to increase the total installed cost of equipment (includes MSP, sales taxes, distribution channel markups, and installation cost). DOE also expects the new standards to decrease energy consumption, and thus expenditures on energy. Over time, increased total installed cost is paid back through energy savings. The savings in energy expenditures may be spent on new commercial investment and other items.
Using an input/output model of the U.S. economy, this analysis seeks to estimate the effects on different sectors and the net impact on jobs. DOE will estimate national employment impacts for major sectors of the U.S. economy in the NOPR, using public and commercially available data sources and software. DOE will make all methods and documentation available for review.
DOE developed Impact of Sector Energy Technologies (ImSET), a spreadsheet model of the U.S. economy that focuses on 188 sectors most relevant to industrial, commercial, and residential building energy use.
The ImSET software includes a personal computer-based I-O model with structural coefficients to characterize economic flows among the 188 sectors. ImSET's national economic I-O structure is based on the 1997 Benchmark U.S. table (Lawson, et al. 2002),
The model is a static I-O model, which allows a great deal of flexibility concerning the types of energy efficiency effects that can be accommodated. For example, certain economic effects of energy efficiency improvements require an assessment of inter-industry purchases, which is handled in the model. Some energy efficiency investments will not only reduce the costs of energy in the economy but the costs of labor and other goods and services as well, which is accommodated through a recalculation of the I-O structure in the model. Output from the ImSET model can be used to estimate changes in employment, industry output, and wage income in the overall U.S. economy resulting from changes in expenditures in the various sectors of the economy.
Although DOE intends to use ImSET for its analysis of employment impacts, it welcomes input on other tools and factors it might consider. For more information on the employment impacts analysis, refer to chapter 14 of the TSD.
DOE will assess the impacts of proposed commercial refrigeration equipment standard levels on certain environmental indicators, using NEMS-BT to provide key inputs to the analysis. The environmental assessment produces results in a manner similar to those provided in the
The intent of the environmental assessment is to provide estimates of reduced powerplant emissions and to fulfill requirements to properly quantify and consider the environmental effects of all new Federal rules. The environmental assessment that will be produced by NEMS-BT considers two pollutants (sulfur dioxide (SO
DOE will conduct the environmental assessment as an incremental policy impact (i.e., a commercial refrigeration equipment standard) of the
NEMS-BT also reports SO
NEMS also has an algorithm for estimating NO
The results for the environmental assessment are similar to a complete NEMS run as published in the
For more detail on the environmental assessment, refer to the environmental assessment report of the TSD.
DOE will prepare a draft regulatory impact analysis in compliance with Executive Order 12866, “Regulatory Planning and Review,” which will be subject to review by the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA). 58 FR 51735 (September 30, 1993).
As part of the regulatory impact analysis (and as discussed in section II.K of this ANOPR), DOE will identify and seek to mitigate the overlapping effects on manufacturers of new or revised DOE standards and other regulatory actions affecting the same equipment. Through manufacturer interviews and literature searches, DOE will compile information on burdens from existing and impending regulations affecting commercial refrigeration equipment. DOE also seeks input from stakeholders about regulations it should consider.
The regulatory impact analysis also will address the potential for non-regulatory approaches to supplant or augment energy conservation standards to improve the efficiency of commercial refrigeration equipment. The following list includes non-regulatory means of achieving energy savings that DOE can consider.
The TSD, in support of DOE's NOPR, will include an analysis of each alternative, the methodology for which is discussed briefly below.
DOE will use the NES spreadsheet model (as discussed in sections I.B.5 and II.I of this ANOPR) to calculate the NES and the NPV corresponding to each alternative to the proposed standards. The details of NES spreadsheet model are discussed in chapter 10 of the TSD. To compare each alternative quantitatively to the proposed conservation standards, it will be necessary to quantify the effect of each alternative on the purchase and use of energy efficient commercial equipment. Once each alternative is properly quantified, DOE will make the appropriate revisions to the inputs in the NES spreadsheet model. The following are key inputs that DOE may revise in the NES spreadsheet model.
• Commercial energy use (EJ = 10
• NES is the cumulative national energy use from the base case projection less the alternative policy case projection.
• NPV is the value of future operating cost savings from commercial refrigeration equipment bought in the period from the effective date of the new standard to the year 2035. DOE calculates the NPV as the difference between the present value of equipment and operating expenditures (including energy) in the base case, and the present value of expenditures in each alternative policy case. DOE discounts future operating and equipment expenditures to 2006 using a seven percent real discount rate. It calculates operating expenses (including energy) for the life of the equipment.
For more information on the regulatory impact analysis, refer to the regulatory impact analysis report in the TSD.
DOE will specify CSLs in the ANOPR, but will not propose a particular standard. DOE selected between four and eight energy consumption levels for each commercial refrigeration equipment class for use in the LCC and NIA. Based on the results of the ANOPR analysis, DOE selects from the CSLs analyzed in the ANOPR a subset for a more detailed analysis for the NOPR stage of the rulemaking. The range of CSLs selected includes: the most energy efficient level or most energy efficient combination of design options, the combination of design options or efficiency level with the minimum LCC, and a combination of design options or efficiency level with a PBP of not more than three years. Additionally, CSLs that incorporate noteworthy technologies or fill in large gaps between efficiency levels of other CSLs may be selected.
DOE will include the most energy efficient level analyzed as a CSL. The level with the maximum LCC savings was identified for each equipment category. In some instances this was identical to the most efficient level analyzed. In other cases it was the next most efficient level analyzed. The calculated national average PBPs from the LCC analysis suggested that many of the energy efficiency levels analyzed provided a national average payback of less than three years when compared with the baseline equipment. DOE opted to designate as a CSL the maximum energy efficiency level that provided for a payback of less than three years. These three selection criteria provided only one or two CSLs selections per equipment class. Therefore, DOE selected two or three lower energy consumption levels for each equipment class in order to provide greater variation in CSLs for its future analysis. The selection of these additional levels reflects DOE review of the relative cost effectiveness of the levels when compared with the baseline equipment and when compared with other efficiency levels. Four CSLs were selected for each equipment class. Table III.1 shows the selected CSLs based on the energy consumption for the specific equipment analyzed in the engineering analysis. DOE specifically seeks feedback on its selection of specific candidate standard levels for the post ANOPR analysis phase. This is identified as Issue 13 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
DOE will refine its final selection of CSLs for further analysis after receiving input from stakeholders on the ANOPR and after any revision of the ANOPR analyses. At that point, the CSLs will be recast as Trial Standard Levels (TSLs). DOE will analyze specific TSLs during the post-ANOPR analysis and will report the results of that analysis in the NOPR.
Because the equipment classes cover a variety of equipment sizes, DOE has suggested defining the standard in terms of upper limits on daily energy consumption (CDEC or TDEC as provided for remote condensing and self-contained equipment, respectively) normalized by TDA for remote condensing commercial equipment with transparent doors or without doors, commercial ice-cream freezers with transparent doors, and self-contained commercial equipment without doors. DOE has suggested defining the standard levels in terms of maximum rated daily energy consumption (CDEC or TDEC as provided for remote condensing and self-contained equipment, respectively) normalized by refrigerated volume (V, as measured by ANSI/AHAM Standard HRF-1-2004) for remote condensing commercial refrigerators, commercial freezers, and commercial refrigerators-freezers with solid doors and for commercial ice-cream freezers with solid doors. The industry supplied cost-efficiency curves are in the form of CDEC normalized by TDA (kWh/day/ft
When an energy conservation standard is defined for an equipment class, DOE must consider how to express the level in a manner suitable for all equipment within that class. This is of particular concern when the rating is in terms of energy consumption and there is variation of energy consumption within a class due to variation in equipment size or capacity. DOE believes that TDA captures the most significant driver behind capacity-related energy consumption differences between like equipment designs within an equipment class (see section II.A.2 of the ANOPR). For this reason, DOE has suggested that the maximum energy consumption standards for this equipment be expressed as:
Commercial refrigerators, commercial freezers and commercial refrigerator-freezers with a self-contained condensing unit designed for holding temperature applications manufactured on or after January 1, 2010, will have energy conservation standards in terms of:
In similar fashion, DOE has suggested that the energy conservation standards for remote condensing refrigerators, commercial freezers, and commercial refrigerators-freezers with solid doors and for commercial ice-cream freezers with solid doors, respectively, be expressed as:
DOE is concerned that V may not completely capture the most significant driver behind capacity- or size-related energy consumption differences between equipment designs within these equipment classes. In particular, for these equipment classes, the surface area for heat gain may not vary linearly with volume. The VCS.SC.I equipment class falls under this category.
DOE specifically seeks feedback on its approach for characterizing energy conservation standards for commercial refrigeration equipment. If the approach to characterizing standards for remote condensing commercial refrigerators, commercials freezers, and commercial refrigerators-freezers with solid doors and for commercial ice-cream freezers with solid doors is acceptable, DOE seeks comments on how it could develop appropriate offset factors (K
Commercial refrigerator-freezers (also called dual temperature units) are equipment that have two or more compartments that operate at different temperatures. During the Framework public meeting, Hill Phoenix stated that shipments of this equipment are very low. (Public Meeting Transcript, No. 3.4 at p. 52) In the engineering analysis (section II.C of this ANOPR), DOE only analyzed those equipment classes with the highest shipment volumes, and therefore did not include an analysis of commercial refrigerator-freezers. However, DOE explained in the market and technology assessment (section II.A of this ANOPR) that it intended to adapt the analytical results for commercial refrigerators and commercial freezers to commercial refrigerator-freezers.
DOE understands that remote condensing commercial refrigerator-freezers (with and without doors) and self-contained commercial refrigerator-freezers without doors may operate in one of two ways. First, they may operate as separate chilled and frozen compartments with evaporators fed by two sets of refrigerant lines or two compressors. Second, they may operate as separate chilled and frozen compartments fed by one set of low temperature refrigerant lines (with evaporator pressure regulator (EPR) valves or similar devices used to raise the evaporator pressure, and thus the temperature of one or more compartments) or one compressor. Accordingly, for the purposes of implementing standards, DOE is considering the following method for implementing standards for commercial refrigerator-freezers.
• For remote condensing commercial refrigerator-freezers where two or more chilled and frozen compartments are cooled by independent remote condensing units, each compartment should have its total refrigeration load measured separately according to the ANSI/ASHRAE Standard 72-2005 test procedure. Compressor energy consumption (CEC) for each compartment shall be calculated using Table 1 in ANSI/ARI Standard 1200-2006 using the evaporator temperature for that compartment. The CDEC for the entire case shall be the sum of the CEC for each compartment, fan energy consumption (FEC), lighting energy consumption (LEC), anti-condensate energy consumption (AEC), defrost energy consumption (DEC), and condensate evaporator pan energy consumption (PEC) (as measured in ANSI/ARI Standard 1200-2006). Determine the maximum limit on CDEC for each compartment, based on that compartment's respective equipment class and TDA or volume. The maximum limit on CDEC for the entire case is the sum of all the maximum limits on CDEC of all compartments.
• For remote condensing commercial refrigerator-freezers where two or more chilled and frozen compartments are cooled by one condensing unit (with EPR valves or similar devices used to raise the evaporator pressure, and thus the temperature of one or more compartments), the total case shall have its total refrigeration load measured according to the ANSI/ASHRAE Standard 72-2005 test procedure. CEC for the entire case shall be calculated using Table 1 in ANSI/ARI Standard 1200-2006 using the lowest evaporator temperature of all compartments. The CDEC for the entire case shall be the sum of the CEC, FEC, LEC, AEC, DEC, and PEC. Determine the maximum limit on CDEC for the compartment with the lowest integrated average temperature (IAT), based on that compartment's respective equipment class and the total TDA or volume of all compartments. This value is the maximum limit on CDEC for the entire case.
• For self-contained commercial refrigerator-freezers without doors where two or more chilled and frozen compartments are cooled by independent self-contained condensing units, the CDEC for the entire case shall be measured according to the ANSI/ASHRAE Standard 72-2005 test procedure. Determine the maximum limit on CDEC for each compartment, based on that compartment's respective equipment class and TDA. The maximum limit on CDEC for the entire case is the sum of all the maximum limits on CDEC of all compartments.
• For self-contained commercial refrigerator-freezers without doors where two or more chilled and frozen compartments are cooled by one condensing unit (with EPR valves or similar devices used to raise the evaporator pressure, and thus the temperature of one or more compartments), the daily energy consumption for the entire case shall be measured according to the ANSI/
DOE specifically seeks feedback on its approach for setting standards for remote condensing commercial refrigerator-freezers. Additionally, DOE seeks feedback on how to implement standards for self-contained commercial refrigerator-freezers without doors. These are identified as Issue 15 under “Issues on Which DOE Seeks Comment” in section IV.E of this ANOPR.
The time, date and location of the public meeting are set forth in the DATES and
Any person who has an interest in today's notice, or who is a representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation. Please hand-deliver requests to speak to the address shown under the heading “Hand Delivery/Courier” in the
Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE asks persons selected to be heard to submit a copy of their statements at least two weeks before the public meeting, either in person, by postal mail, or by e-mail as described in the preceding paragraph. Please include an electronic copy of your statement on a computer diskette or compact disk when delivery is by postal mail or in person. Electronic copies must be in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format. At its discretion, DOE may permit any person who cannot supply an advance copy of his or her statement to participate, if that person has made alternative arrangements with the Building Technologies Program. In such situations, the request to give an oral presentation should ask for alternative arrangements.
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with 5 U.S.C. 553 and section 336 of EPCA. (42 U.S.C. 6306) A court reporter will be present to record and transcribe the proceedings. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments about the proceedings, and any other aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within time limits determined by DOE) before discussion of a particular topic. DOE will permit other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to the public meeting. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for proper conduct of the public meeting.
DOE will make the entire record of this proposed rulemaking, including the transcript from the public meeting, available for inspection at the U.S. Department of Energy, Forrestal Building, Room 1J-018 (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. Any person may purchase a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and information regarding all aspects of this ANOPR before or after the public meeting, but no later than October 9, 2007. Please submit comments, data, and information electronically to the following e-mail address:
Under 10 CFR Part 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential, and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by, or available from, other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
DOE is interested in receiving comments on all aspects of this ANOPR. DOE particularly invites comments or data to improve DOE's analysis, including data or information that will respond to the following questions or concerns that were addressed in this ANOPR:
Because of the large number of equipment classes included in this rulemaking, DOE focused on conducting a thorough examination of the equipment classes with the greatest energy-savings potential. To address low-shipment equipment classes, DOE could either conduct a full technical analysis of these equipment classes or develop correlations to extend analyses or standard levels in the NOPR phase of the rulemaking. DOE requests feedback on the approach to equipment type prioritization and its approach to address low-shipment volume equipment classes, and of extending EPCA standards to equipment classes in this rulemaking. (See section I.D.3.c and II.A.2 of this ANOPR and chapter 5 of the TSD for further details.)
For equipment without doors, DOE believes that the orientation of the air curtain affects the energy consumption (both remote condensing and self-contained equipment) and that equipment without doors can be broadly categorized by the angle of the air curtain that divides the refrigerated compartment from the ambient space. DOE is considering defining air-curtain angle as “the angle between a vertical line and the line formed by the points at the center of the discharge air grille and the center of the return air grille, when viewed in cross-section.” DOE requests feedback on this definition of air-curtain angle. (See section II.A.2 of this ANOPR for further details.)
For equipment with doors, DOE believes that the orientation of doors affects the energy consumption and that equipment with doors can be broadly categorized by the angle of the door. DOE is considering defining door angle as “the angle between a vertical line and the line formed by the plane of the door, when viewed in cross-section.” DOE requests feedback on this on this definition of door angle. (See section II.A.2 of this ANOPR for further details.)
DOE is proposing to define two equipment families each for equipment with solid and transparent doors, based on door angles of 0° to 45° (vertical) and 45° to 90° (horizontal). DOE requests comments on these ranges of door angles in defining equipment classes with doors. (See section II.A.2 of this ANOPR for further details.)
In accordance with EPCA section 325(p)(1)(A), DOE identified the equipment classes covered under this rulemaking in Table II.6. (42 U.S.C. 6295(p)(1)(A)) Pursuant to EPCA section 325(p)(1)(B), DOE requests comments on these equipment classes and invites interested persons to submit written presentations of data, views, and arguments. (42 U.S.C. 6295(p)(1)(B)) (See section II.A.2 of this ANOPR for further details.)
DOE's analysis suggests that typical lighting operating hours for most classes of commercial refrigeration equipment would fall in the range of 16 to 24 hours per day, depending on store operating hours, use of lighting during after-hours case stocking, and typical lighting operation or controls used for unoccupied periods. Display case lighting hours may also depend on business type as convenience stores have distinctly different operating hours than other segments of the food retail industry. DOE requests comments on whether the 24-hour basis for case lighting operating hours is valid for DOE's continued analysis, and if not, what changes should be made to better characterize the case lighting operating hours? (See section II.E of this ANOPR for further details.)
DOE requests comments on operation and maintenance practices for commercial refrigeration equipment that may be prevalent in the field which may differ from standardized conditions, such as those represented in a test procedure. These field conditions could potentially affect the energy consumption savings experienced in the field as a result of increased energy efficiency as compared to those savings estimated in the TSD's energy consumption analysis under idealized conditions. DOE requests comment on the frequency to which such factors come in to play in energy use in the field, and whether and how DOE could account for these factors in assessing the overall impacts of the candidate standards levels for commercial refrigeration equipment. (See section II.E of this ANOPR for further details.)
DOE requests comments on the lifetime of commercial refrigeration equipment and whether, in fact, this is a significant issue and whether DOE should perform a sensitivity analysis of this variable in the LCC and NES analyses. In particular, DOE seeks comment on how long these units are typically maintained in service by equipment class and store type. Also, DOE seeks comment on the existence and importance of a used-equipment market for commercial refrigeration equipment, and the importance of considering such a market in its analysis. (See section II.E of this ANOPR for further details.)
DOE did not receive data from industry concerning the average energy efficiency of commercial refrigeration equipment currently being shipped, nor was data provided in further discussion with manufacturers. An analysis of the literature suggests little data on the energy characteristics of display cases in the general market is available. Based on this, DOE used the Level 1 (minimum energy efficiency level) established in the engineering analysis as the baseline for the LCC analysis.
The selection of baseline level has two impacts in the LCC and PBP analyses. It can affect the PBP calculated since payback is calculated from the baseline level, and it can affect the maximum level showing LCC savings. It can also affect the fraction of users on the market who experience LCC savings at any level. The selection of the baseline level does not generally affect the level identified as having the maximum LCC savings. DOE requests feedback on whether the Level 1 baseline selected by DOE is valid for the LCC analysis, and if not, what changes should be made to provide a more realistic baseline level. Since higher efficiency equipment is known to be sold into the market, DOE also seeks input on whether a distribution of efficiencies should be used for the LCC analysis baseline, and if so, what data could be used to populate this distribution. If more detailed data to develop a distribution of efficiencies in the baseline cannot be provided, DOE seeks input on how a sensitivity analysis to alternative baselines could best be used to inform the LCC and NES analyses supporting the rulemaking. (See section II.G.15 of this ANOPR for further details.)
No data have been found on the market shares of various commercial refrigeration equipment classes by energy consumption level. Therefore, for the National Impact Analysis base case, DOE adapted a cost-based method used in the NEMS to estimate market shares for each equipment class by efficiency level. DOE did not have data to calibrate this approach to actual market shipments. Does the economic-based approach DOE used to establish base case shipments by efficiency level provide a valid base case assumption for the NIA and future analyses? If not, what should DOE do to improve the base case efficiency forecast? (See section II.I.2 of this ANOPR for further details.)
Because key inputs to the calculation of the NES and NPV are dependent on the estimated efficiencies under the base case (without standards) and the standards case (with standards), forecasted efficiencies are of great importance to the analysis. Information available to DOE suggests that forecasted market shares would remain frozen throughout the analysis period (
The shipment models used in the NES and NIA presume that the relative market share of the different classes of commercial refrigeration equipment remains constant over the time period analyzed. While DOE is aware that market preferences for certain types of products may change in the future, DOE has no data with which to predict or characterize those changes. DOE is however particularly concerned whether higher standards for certain classes of commercial refrigeration equipment are likely to generate significant market shifts to other equipment that may have higher energy consumption. By developing standards for all classes of commercial refrigeration equipment within the scope of this rulemaking using the same economic criteria, DOE hopes to mitigate this concern. However, DOE specifically requests stakeholder input on the potential for standards-driven market shifts between equipment classes that could reduce national energy savings as well as stakeholder input on how the standards setting process can reduce or eliminate these shifts. (See section II.I.2 of this ANOPR for further details.
DOE is required to examine specific criteria for the selection of CSLs for further analysis. Some of these criteria are economic based and the resulting CSLs selected may be impacted by updates to the ANOPR analysis after input from stakeholders. DOE has discretion in the selection of additional standard levels it may choose to analyze. DOE seeks input on the candidate standard levels selected for future analysis shown in Table III.1 (See section III of this ANOPR for further details.)
When an efficiency or energy consumption standard is defined for a class of equipment, DOE must consider how to express the level in a manner suitable for all equipment within that class. DOE seeks input on its approach for characterizing energy conservation standards for commercial refrigeration equipment as discussed in section III. If the approach to characterizing standards for remote condensing commercial refrigerators, commercial freezers, and commercial refrigerators-freezers with solid doors and for commercial ice-cream freezers with solid doors is acceptable, DOE seeks comments on how it could develop appropriate offset factors (K
DOE is addressing standards for commercial refrigerator-freezers (both remote condensing and self-contained). For equipment served by independent condensing units, the maximum limit on CDEC for the entire case is the sum of the maximum limits on CDEC of all compartments, based on each compartment's respective equipment class and TDA or volume. For equipment served by one condensing unit, the maximum limit on CDEC for the entire case is the maximum limit on CDEC for the compartment with the lowest IAT, based on the equipment class of that compartment and the total TDA or volume of all compartments. DOE requests feedback on this approach to implementing standards for commercial refrigerator-freezers. (See section III of this ANOPR for further details.)
DOE submitted this ANOPR for review to the Office of Management and Budget, under Executive Order 12866, “Regulatory Planning and Review.” 58 FR 51735 (October 4, 1993). If DOE later proposes energy conservation standards for certain commercial refrigeration equipment, and if the proposed rule constitutes a significant regulatory action, DOE would prepare and submit to OMB for review the assessment of costs and benefits required under section 6(a)(3) of the Executive Order. The Executive Order requires agencies to identify the specific market failure or other specific problem that it intends to address that warrant new agency action, as well as assess the significance of that problem, to enable assessment of whether any new regulation is warranted. (Executive Order 12866, § 1(b)(1)). Without a market failure, a regulation cannot result in net benefits.
DOE's preliminary analysis suggests that accounting for the market value of energy savings alone (
First, DOE believes that there is a lack of consumer information and/or information processing capability about energy efficiency opportunities in the commercial refrigeration equipment market. If this is in fact the case, DOE would expect the energy efficiency for commercial refrigeration equipment to be randomly distributed across key variables such as energy prices and usage levels. DOE seeks data on the efficiency levels of existing commercial refrigeration equipment in use by store type (
Second, for small businesses in particular, DOE believes there may be “split incentives” for more energy efficient equipment. The commercial space owner may not invest in efficient equipment because the owner of the space does not pay the energy bill, and the retail establishment owner (building tenant) does not want to invest so as not to risk losing the capital investment at the end of the lease. If this is in fact the case, DOE would expect that, other things equal, establishments that own the equipment purchase higher efficiency commercial refrigeration equipment on average than those who rent the equipment through building lease arrangements. DOE seeks data on owner-occupied buildings versus leased/non-owner occupied buildings for given store types (
Of course, there are likely to be certain “external” benefits resulting from the improved efficiency of units that are not captured by the users of such equipment. These include both environmental and energy security-related externalities that are not already reflected in energy prices such as reduced emissions of greenhouse gases and reduced use of natural gas (and oil) for electricity generation. DOE invites comments on the weight that should be given to these factors in DOE's determination of the maximum efficiency level at which the total benefits are likely to exceed the total burdens resulting from a DOE standard.
In addition, various other analyses and procedures may apply to such future rulemaking action, including those required by the National Environmental Policy Act, Pub. L. 91-190, 42 U.S.C. 4321
The draft of today's action and any other documents submitted to OIRA for review are part of the rulemaking record and are available for public review at the U.S. Department of Energy, Forrestal Building, Room 1J-018, (Resource Room of the Building Technologies Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays.
The Secretary of Energy has approved publication of today's ANOPR.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Final rule.
This final rule extends the due date, by an additional 30 days, for Indian Housing Block Grant (IHBG) recipients to submit annual performance reports (APRs). Through the IHBG program, HUD provides housing assistance to Indian tribes and tribally designated housing entities (TDHEs). Currently, HUD's regulations require IHBG recipients to submit APRs 60 days after the end of the recipient's program year. This rule follows publication of a March 29, 2007, proposed rule and takes into consideration the comments received on the proposed rule. Because all of the comments offered support for extending this deadline by an additional 30 days, HUD adopts the proposed rule without change.
Jennifer Bullough, Director of Grants Evaluation, Department of Housing and Urban Development, 451 Seventh Street, SW, Room 5156, Washington, DC 20410-5000; telephone number (202) 402-4274 (this is not a toll-free number). Hearing- and speech-impaired persons may access this number through TTY by calling the toll-free Federal Information Relay Service at (800) 877-8339.
Through the IHBG program, HUD provides housing assistance to Indian tribes and TDHEs. HUD's regulations for the IHBG program are codified at 24 CFR part 1000. Section 1000.512 of the regulations requires that IHBG recipients, on an annual basis, prepare and submit an APR that provides a self-assessment of their IHBG-funded activities. The APR includes a description of the use of grant funds, a comparison of accomplishments, an analysis and explanation of cost overruns or high unit costs, and any information regarding the recipients' performance in accordance with HUD's performance measures, as set forth in 24 CFR 1000.524. The current regulations at § 1000.514 require IHBG recipients to submit APRs within 60 days of the end of their program year.
On March 29, 2007, HUD published a proposed rule (72 FR 15001), to extend the APR deadline by 30 days. As proposed, the revised 24 CFR 1000.514 would require IHBG recipients to submit their APRs within 90 days of the end of their program year. HUD proposed the extension to provide additional time to IHBG recipients to obtain, review, and analyze accurate financial and programmatic data, and allow for community consideration, before submission of the completed APR to HUD. A conforming change was also proposed to § 1000.524(d), to clarify that the timely submission of an accurate APR is an IHBG program performance measure.
For a detailed discussion of the proposed regulations, please see the preamble to the proposed rule, at 72 FR 15001.
This final rule follows publication of the March 29, 2007, proposed rule and takes into consideration the ten public comments received on the proposed rule. After careful consideration of the public comments, which all offered support for the rule, HUD has decided to adopt the proposed rule's 90-day deadline, without change.
The public comment period closed on May 29, 2007, and the commenters included Indian tribes and their TDHEs. All of the commenters supported the APR due date extension that will provide IHBG recipients with 30 additional days during which they can complete and submit the APR. Several of the commenters explained that the additional time will improve the accuracy of the APR, as well as ensure timeliness of submission. One commenter stated that because of the number and diversity of its housing activities, the current 60-day deadline is often insufficient to prepare a detailed and comprehensive APR. The commenters all supported the additional 30 days as adequate to meet their needs.
HUD's policy is to consult with Indian tribes early in the rulemaking process on matters that have tribal implications. Accordingly, prior to publication of the March 29, 2007, proposed rule, HUD held nine consultation meetings which were attended by more than 500 tribal representatives. During these meetings, attendees expressed support for extending the due date for the APR to 90 days after the end of the recipient's program year. Further, tribes had the opportunity to submit comments on the proposed rule. As noted above in this preamble, all of the tribes submitting comments offered support for the proposed regulatory changes.
The information collection requirements contained in this rule have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0218. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.
This rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, review, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The Regulatory Flexibility Act (5 U.S.C. 601
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandate on state, local, or tribal governments or the private sector within the meaning of UMRA.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications, if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of that Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments, nor does it preempt state law within the meaning of Executive Order 13132.
The Catalog of Federal Domestic Assistance number is 14.867.
Aged, Community development block grants, Grant programs—housing and community development, Grant programs—Indians, Indians, Individuals with disabilities, Public housing, Reporting and recordkeeping requirements.
25 U.S.C. 4101
The annual performance report must be submitted within 90 days of the end of the recipient's program year. If a justified request is submitted by the recipient, the Area ONAP may extend the due date for submission of the annual performance report.
(d) Accurate annual performance reports were submitted to HUD in accordance with § 1000.514.