Agricultural Marketing Service
Forest Service
National Agricultural Statistics Service
National Foundation on the Arts and the Humanities
Foreign-Trade Zones Board
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Trade Representative, Office of United States
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
Health Resources and Services Administration
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
Employment and Training Administration
Copyright Office, Library of Congress
Trade Representative, Office of United States
National Agricultural Statistics Service
Federal Aviation Administration
Federal Highway Administration
Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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Food and Drug Administration, HHS.
Direct final rule.
The Food and Drug Administration (FDA) is amending its regulation regarding the confidentiality of data and information in and about new animal drug application files to change when certain approval-related information will be disclosed by the Agency. This change will ensure that the Agency is able to update its list of approved new animal drug products within the statutory timeframe. It will also permit more timely public disclosure of approval-related information, increasing the transparency of FDA decision making in the approval of new animal drugs.
This rule is effective July 30, 2014. Submit either electronic or written comments by June 2, 2014. If FDA receives no significant adverse comments within the specified comment period, the Agency will publish a document confirming the effective date of the final rule in the
You may submit comments, identified by Docket No. FDA-2014-N-0108, by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
Scott Fontana, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0656.
Section 512(i) (21 U.S.C. 360b(i)) was added to the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by the Animal Drug Amendments of 1968 (Pub. L. 90-399). Section 512(i) requires the conditions and indications of use of a new animal drug to be published in the
In 1974, FDA revised its regulations regarding the confidentiality of information in applications in § 135.33a (21 CFR 135.33a) to include provisions of the Freedom of Information Act (Pub. L. 89-487). That revision established that public disclosure by the Agency of certain data and information in an NADA file could not occur before the
In 1988, the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) added section 512(n)(4)(A) of the FD&C Act, which states that the Agency shall publish a list of approved new animal drug products and revise that list every 30 days to include each new animal drug that has been approved during that 30-day period. This list, as well as related patent information and marketing exclusivity periods, is contained in a document generally known as the “Green Book,” available at the Agency's public Web site at
The editorial and clearance processes for publishing the
FDA is issuing this direct final rule amending § 514.11 to change the time when certain approval-related information in an NADA file will be publicly disclosed, from when notice of the approval is published in the
FDA has determined that the subject of this rulemaking is suitable for a direct final rule. FDA is amending § 514.11 to change the time when certain approval-related information in an NADA file will be publicly disclosed to ensure that the Agency is able to update the “Green Book” within the 30-day statutory timeframe. This rule is intended to make noncontroversial changes to existing regulations. The Agency does not anticipate receiving any significant adverse comment on this rule.
Consistent with FDA's procedures on direct final rulemaking, we are publishing elsewhere in this issue of the
FDA is providing a comment period for the direct final rule of 75 days after the date of publication in the
Comments that are frivolous, insubstantial, or outside the scope of the direct final rule will not be considered significant or adverse under this procedure. For example, a comment recommending a regulation change in addition to those in the rule would not be considered a significant adverse comment unless the comment states why the rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to an amendment, paragraph, or section of this rule and that provision can be severed from the remainder of the rule, FDA may adopt as final those provisions of the rule that are not the subject of a significant adverse comment.
If FDA does not receive significant adverse comment in response to the direct final rule, the Agency will publish a document in the
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
FDA is issuing this direct final rule under section 512(c) of the FD&C Act. This section gives the Secretary of Health and Human Services the authority to approve new animal drug applications. In addition, section 701(a) of the FD&C Act (21 U.S.C. 371(a)) gives FDA general rulemaking authority to issue regulations for the efficient enforcement of the FD&C Act.
FDA has 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 examined the impacts of this direct final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct 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, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this direct final rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because this direct final rule would not impose any compliance costs on the sponsors of animal drug products that are currently marketed or in development, the Agency certifies that this direct final rule will not 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 $141 million, using the most current (2012) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this direct final rule to result in any 1-year expenditure that would meet or exceed this amount.
FDA has analyzed this direct final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the direct final 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 concludes that the direct final 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.
This direct final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
Interested persons may submit either electronic comments regarding this document to
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Therefore under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 514 is amended as follows:
21 U.S.C. 321, 331, 351, 352, 356a, 360b, 371, 379e, 381.
(b) The existence of an NADA file will not be disclosed by the Food and Drug Administration before the application has been approved, unless it has been previously disclosed or acknowledged.
(d) If the existence of an NADA file has been publicly disclosed or acknowledged before the application has been approved, no data or information contained in the file is available for public disclosure, but the Commissioner may, in his discretion, disclose a summary of such selected portions of the safety and effectiveness data as are appropriate for public consideration of a specific pending issue, i.e., at an open session of a Food and Drug Administration advisory committee or pursuant to an exchange of important regulatory information with a foreign government.
(e) After an application has been approved, the following data and information in the NADA file are immediately available for public disclosure unless extraordinary circumstances are shown:
(2) * * *
(ii) For an NADA approved after July 1, 1975, a summary of such data and information prepared in one of the following two alternative ways shall be publicly released when the application is approved.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) that control emissions of volatile organic compounds (VOCs) at gasoline dispensing facilities (GDFs) in Texas. The revisions were submitted to the EPA by the Texas Commission on Environmental Quality (TCEQ) on October 31, 2013 and address the maintenance and removal of Stage II vapor recovery equipment at GDFs. The EPA is also approving related revisions to the Stage II SIP narrative that pertain to the maintenance and removal of Stage II vapor recovery equipment and demonstrate that the absence of Stage II equipment in the Beaumont-Port Arthur (BPA), Dallas-Fort Worth (DFW) and Houston-Galveston Brazoria (HGB) areas, and in El Paso County would not interfere with attainment of the national ambient air quality standards, reasonable further progress or any other requirement of the Clean Air Act (CAA or Act). The EPA is approving these revisions pursuant to sections 110 and 202 of the Act and consistent with the EPA's guidance.
This final rule is effective on April 16, 2014.
EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2013-0439. All documents in the docket are listed on the
Ms. Carrie Paige, Air Planning Section (6PD-L); telephone (214) 665-6521; email address
Throughout this document, “we,” “us,” and “our” means EPA.
The background for today's final rule is discussed in our December 30, 2013 proposal to approve revisions to the Texas SIP (78 FR 79340). In that action, we proposed to approve the Texas SIP revisions submitted by the TCEQ on October 31, 2013, which specify that new GDFs would not be required to install Stage II equipment and provide removal (decommissioning) procedures that existing GDFs in the 16 counties
Our December 30, 2013 proposal provides a detailed description of the revisions and the rationale for EPA's proposed actions, together with a
The EPA is approving revisions to the Texas SIP that control emissions of VOCs and pertain to the maintenance and removal of Stage II vapor recovery equipment submitted on October 31, 2013. We are approving revisions to the following sections within 30 TAC 115: 115.240, 115.241, 115.242, 115.243, 115.244, 115.245, 115.246, 115.247, and 115.249. The EPA is also approving related revisions to the Stage II SIP narrative that address the maintenance and removal of Stage II equipment, and demonstrate that the removal of, or failure to install Stage II equipment in the BPA, DFW, and HGB areas, and in El Paso County, meets section 110(l) of the Act. The EPA is approving these revisions in accordance with sections 110 and 202 of the Act and consistent with the EPA's guidance.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 16, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed 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, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Missouri State Implementation Plan (SIP), the 40 CFR part 62 state plans (111(d)), and the 40 CFR part 70 operating permits program, which were received on August 25, 2011, May 8, 2012, and February 11, 2013, respectively. The revisions submitted by the state move definitions currently in individual rules into one rule and eliminates the risk of the same term being defined differently for different rules. This action provides more clarity for the regulated public. These revisions do not have an adverse affect on air quality. EPA's approval of these rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).
This direct final rule is effective May 16, 2014, without further notice, unless EPA receives adverse comment by April 16, 2014. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2013-0724, by one of the following methods:
1.
2.
3.
Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219, or at 913-551-7028, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA is taking direct final action to amend Missouri's SIP, 111(d) plan, and operating permits program by approving the state's requests to amend 10 CSR 10-6.020,
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission has also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
The substantive requirements of 40 CFR part 62 and Title V of the 1990 CAA Amendments and 40 CFR part 70 have been met as well.
EPA is taking final action to approve this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's
If EPA receives adverse comment, we will publish a timely withdrawal in the
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 under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). 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
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Congressional Review Act, 5 U.S.C. 801
A major rule cannot take effect until 60 days after it is published in the
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 16, 2014. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Paper and paper products industry, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Sulfuric acid plants, Waste treatment and disposal.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
40 CFR parts 52, 62, and 70 are amended as follows:
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401
(b) * * *
(5) A revision to Missouri's 111(d) plan to incorporate state regulation 10 CSR 10-6.020 Definitions and Common Reference Tables was state effective on February 28, 2013. The effective date of the amended plan is May 16, 2014.
42 U.S.C. 7401
(bb) The Missouri Department of Natural Resources submitted revisions to Missouri rule 10 CSR 10-6.020, “Definitions and Common Reference Tables” on February 11, 2013. The state effective date is February 28, 2013. This revision is effective May 16, 2014.
U.S. Small Business Administration (SBA).
Proposed rule.
This proposed rule would amend certain existing regulations for the Microloan Program. The Microloan Program assists women, low income, veteran, and minority entrepreneurs, and others capable of operating a small business that are in need of small amounts of financial assistance. Specifically, this proposed rule would allow any Microloan Program Intermediary to make microloans (loans of $50,000 or less) to businesses with an Associate who is on probation or parole, except in limited circumstances; it would increase the minimum number of loans that microloan Intermediaries must make annually; and it would remove the requirement that the Microloan Revolving Fund (MRF) and the Loan Loss Reserve Fund (LLRF) be held in interest-bearing Deposit Accounts. In addition, the proposed rule includes technical amendments that would conform the regulations to current statutory authority.
Comments must be received on or before May 16, 2014.
You may submit comments, identified by RIN: 3245-AG53, docket number [SBA-2013-0002] by any of the following methods:
• Federal eRulemaking Portal:
• Mail: Jody Raskind, Chief, Microenterprise Development Branch, U.S. Small Business Administration, 409 3rd Street SW., 8th floor, Washington, DC 20416.
• Hand Delivery/Courier: Jody Raskind, Chief, Microenterprise Development Branch, U.S. Small Business Administration, 409 3rd Street SW., 8th floor, Washington, DC 20416.
All comments will be posted on
Jody Raskind, Chief, Microenterprise Development Branch, at (202) 205-7076 or
Section 7(m) of the Small Business Act (15 U.S.C. 636(m)) (“Act”) authorizes SBA's Microloan Program, which assists small businesses that need small amounts of financial assistance. Under the program, SBA makes direct loans to Intermediaries, as defined in § 120.701(e), that use the loan proceeds to make microloans to eligible borrowers. SBA is also authorized to make grants to Intermediaries to be used for marketing, management, and technical assistance.
This proposed rule includes several regulatory changes, as well as technical amendments that conform the regulations to current statutory authority. SBA is proposing these changes in order to clarify certain program requirements that have caused confusion and in response to feedback from existing Intermediaries.
Intermediaries must keep their Microloan Revolving Funds (MRFs) and Loan Loss Reserve Funds (LLRFs) at insured depository institutions. See 13 CFR 120.701(a), 120.709, and 120.710. SBA proposes to revise the definition of insured depository institution in § 120.701(d) to specifically include Federally-insured credit unions. The current definition specifies only insured banks and savings associations. SBA is proposing this change to clarify inconsistent interpretations of this definition through a clear statement that such credit unions are included.
Section 120.707(a), What conditions apply to loans by Intermediaries to Microloan borrowers?, sets forth the eligibility conditions placed on loans between Intermediaries and microloan borrowers. However, the current language of § 120.707(a) has caused some confusion among Intermediaries as to which businesses are eligible for microloans. Currently, § 120.707(a) states that “An intermediary may make Microloans to any small business eligible to receive financial assistance under this part.” SBA interprets this language to mean that microloan borrowers must meet the same eligibility criteria as borrowers under the Agency's 7(a) and 504 business loan programs (except that nonprofit child care businesses are eligible for microloans). See 13 CFR 120.110. The proposed rule would revise this language to clarify that microloan borrowers must meet the same eligibility requirements as borrowers in the 7(a) and 504 programs, except as specifically set forth in § 120.707(a).
This rule would also amend § 120.707(a) to allow Intermediaries to make loans to businesses with an Associate, as defined in § 120.10, who is currently on probation or parole, except in limited circumstances. Businesses with an Associate who is incarcerated, on probation, on parole, or currently under indictment for a felony or a crime of moral turpitude are ineligible for assistance under the 7(a) or 504 programs under § 120.110(n); therefore, such businesses are currently ineligible for assistance under the Microloan Program as well. SBA is proposing this change as a result of a regulatory review conducted in connection with SBA's participation on the Federal Interagency Reentry Council (Reentry Council),
In § 120.709, What is the Microloan Revolving Fund?, and § 120.710(a), What is the Loan Loss Reserve Fund?, SBA proposes to remove the requirement that Deposit Accounts, as defined in § 120.701(a), be interest-bearing. SBA is proposing this change after receiving information from several Intermediaries that interest-bearing accounts are not readily available or require Intermediaries to pay a fee. This proposed rule eliminates the requirement that the Deposit Accounts be interest-bearing and, as a result, would reduce the burden and costs faced by microloan Intermediaries.
In § 120.712, How does an Intermediary get a grant to assist Microloan borrowers?, SBA proposes to remove paragraph (c) to conform to current statutory authority. Section 120.712(c) states that Intermediaries that make at least 50 percent of their loans to small businesses located in or owned by residents of Economically Distressed Areas are not subject to the 25 percent grant contribution requirement. This Intermediary contribution waiver authority was removed from the statute in 2010. See 15 U.S.C. 636(m)(4), as amended by Public Law 111-240. Paragraphs (d) and (e) would be redesignated as paragraphs (c) and (d).
SBA proposes to add a new § 120.716, What is the minimum number of loans an Intermediary must make each Federal fiscal year?, which would contain the minimum loan requirement for Intermediaries. The minimum loan requirement is currently contained in § 120.1425(d)(2), Grounds for enforcement actions—Intermediaries participating in the Microloan Program and NTAPs, which is located in Subpart I, “Risk-Based Lender Oversight” (including oversight of Intermediaries). SBA is proposing to move the minimum loan requirement to Subpart G, which contains the other regulations specific to the Microloan Program. The new § 120.716 would also specifically state that Intermediaries that do not meet the minimum loan requirement are not eligible to receive new grant funding. This is consistent with SBA's current policy and practice. SBA determines whether an Intermediary is eligible for grant funding based on the number of microloans made in the previous Federal fiscal year. An Intermediary that is ineligible for a grant due to failure to make the minimum number of microloans in the previous Federal fiscal year may become eligible for grant funding the following year by meeting the minimum number of loans for the current year. Section 120.1425(d)(2) would be revised to include a cross reference to the new § 120.716.
Proposed § 120.716 would also increase the minimum number of microloans that Intermediaries must close and fund each year. Currently, Intermediaries must close and fund (i.e., make an initial disbursement on) at least four loans each Federal fiscal year. Under the proposed rule, the minimum number of microloans will gradually increase to twelve per year. In FY2015, the minimum loan requirement will be six microloans. In FY2016, the requirement will increase to eight microloans. In FY2017 and thereafter, the requirement will increase to a minimum of twelve microloans each year.
SBA proposes to increase the minimum loan requirement for several reasons. First, many existing Intermediaries have repeatedly requested an increase in the requirement so that more grant funding is available for those Intermediaries that generate higher numbers of loans. Second, increasing the minimum number of loans will expand access to capital by increasing the total number of microloans made each year by Intermediaries. Finally, SBA believes that a minimum requirement of twelve loans, which represents approximately one microloan per month, is a reasonable standard that active lenders should be able to meet. Increasing the minimum loan requirement will require Intermediaries that currently make less than the minimum number of microloans per year to increase their lending. SBA proposes a graduated increase in the minimum loan requirement to allow Intermediaries sufficient time to build scale to meet the higher requirements.
SBA invites comments on all aspects of the proposed rule and, in particular, whether the proposed minimum loan requirements are achievable without sacrificing prudent lending standards. SBA would also like comments regarding the limitation on making of microloans to businesses with an Associate who is on probation or parole for certain offenses, and on how Intermediaries would comply with this requirement.
The Office of Management and Budget has determined that this proposed rule is a “significant” regulatory action for the purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. However, this is not a major rule under the Congressional Review Act, 5 U.S.C. 800.
The proposed rule would allow any Microloan Program Intermediary to make microloans (loans of $50,000 or less) to businesses with an Associate who is on probation or parole; it increases the minimum number of loans that microloan Intermediaries must make annually; and it removes the requirement that the Microloan Revolving Fund (MRF) and the Loan Loss Reserve Fund (LLRF) be held in interest-bearing Deposit Accounts. In addition, the proposed rule includes technical amendments that conform the regulations to current statutory authority.
The small business borrowers that receive loans from Microloan Program Intermediaries directly benefit from the Microloan Program. The most significant benefit to small business borrowers as a result of this proposed rule is increased access to capital. This proposed rule would allow Microloan Program Intermediaries to make loans to businesses with an Associate who is on probation or parole, except in limited circumstances. This change would meet the unmet financing and employment opportunity needs of this segment of the population.
Additionally, this proposed rule would require Intermediaries to meet a higher standard in terms of minimum loan production. Once fully implemented, this new standard will represent an increase of approximately 400 microloans per year. During FY 2012, 77 Intermediaries (approximately half of Intermediaries) made fewer than 12 microloans. As proposed,
The final element of the proposed rule change, the removal of the interest-bearing requirement on deposit accounts, will ultimately mean more financing capital and technical assistance training for small business borrowers. Banks often charge monthly fees for use of interest-bearing deposit accounts. By allowing microloan Intermediaries to use non-interest bearing accounts, the Intermediaries will have additional resources to use toward providing loans or technical assistance.
The proposed rule changes would impact the approximately 77 Intermediaries making fewer than twelve microloans per year. However, the graduated introduction of the higher minimum loan requirement will lessen the cost faced by the Intermediaries by allowing additional time to ramp up loan production. Because the financing capital is provided by SBA, the only cost to the Intermediaries will be the operating expenses associated with the increased number of loans that are not covered by the interest rate spread allowed by the program.
SBA does not anticipate that the proposed rule changes will impact the program's subsidy model. For loans to businesses with an associate on parole or probation, SBA believes that Intermediaries will continue to make prudent lending decisions regardless of whether a micro-borrower is a member of the newly eligible population. Because SBA does not expect the new population of borrowers to have a different repayment rate than the rest of the borrowers, inclusion of this population in the model will not impact subsidy.
Since the subsidy models do not use as an input the number of microloans made by Intermediaries to micro-borrowers, increasing the minimum number of loans made per year will not impact subsidy. Finally, SBA believes that a change in the interest-bearing nature of the MRF and LLRF accounts will not impact subsidy. The MRF and LLRF are established for each loan made to an intermediary. MRF consists of loan proceeds from SBA to the Intermediary. Microloans to micro-borrowers and microloan repayments are processed through this account. A Loan Loss Reserve Fund (LLRF) is established and maintained at 15% of the outstanding balance of microloans owed to the Intermediary under the corresponding loan from SBA. In the event that an Intermediary defaults on its payments or goes out of business or ceases to participate in the Microloan program, SBA will have right to the proceeds in the MRF and LLRF up to the amount due to SBA under the program.
SBA received a number of recommendations and support for the proposed changes on numerous occasions from Intermediaries. Such comments came during conference calls, training conferences, and in some cases, letters from Intermediaries. The Intermediaries that have provided input to SBA seek more efficient ways to use limited resources, ensure that resources are going where most needed, and to reduce administrative costs. The proposed regulatory changes will move the Microloan Program to the next level of market expansion, cost reduction, and better utilization of taxpayer dollars. SBA believes that this rule is SBA's best available means for increasing access to capital for women, low income individuals, minority entrepreneurs, and other small businesses which need small amounts of financial assistance. SBA also believes that it will encourage self-employment as an option for those not easily employable due to mistakes in their past.
This action meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. This action does not have retroactive or preemptive effect.
SBA has determined that the proposed rule will 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. Therefore, for the purposes of Executive Order 13132, SBA has determined that this proposed rule has no federalism implications warranting preparation of a federalism assessment.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements. This rule is also part of the Agency's commitment under the Executive Order to reduce the number and burden of regulations.
A description of the need for this regulatory action and benefits and costs associated with this action is included above in the Regulatory Impact Analysis under Executive Order 12866. SBA discussed implementing these proposed rule changes with Microloan Program Intermediary associations and representatives from Intermediaries during conference calls. In addition, these issues were discussed during the Microloan Training Conference with Intermediaries in 2012. Most of these proposed changes were specifically requested by Intermediaries.
SBA has determined that this proposed rule would not impose any new reporting and recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35. The Microloan Program Electronic Reporting System (MPERS) is approved under OMB Control Number 3245-0352, ICR Reference Number 201011-3245-004 and the SBA Lender Microloan Intermediary and NTAP Reporting Requirements are approved under OMB Control Number 3245-0365, ICR Reference Number 201203-3245-001.
The Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA) requires administrative agencies to consider the
SBA has determined that this rule affects a substantial number of small entities, but that it will not have significant impact on those entities. All of the Intermediaries that participate in the Microloan program are small nonprofit or quasi-governmental entities. Approximately half of the 148 existing Intermediaries will be required to increase loan production in order to meet the new minimum loan requirements. SBA anticipates that approximately 15 of these Intermediaries may choose not to participate in the Microloan Program as result of the increased lending requirement. These 15 Intermediaries made fewer than 4 loans in FY 2012 and may choose not to increase loan production to meet the higher requirements. These entities are making so few loans, and generating so little revenue from those loans, that exiting the program will not cause a significant economic impact.
SBA estimates that entities leaving the program will lose approximately $15,000 in annual revenue associated with microloans that would have been made under the SBA Microloan Program. The $15,000 represents approximate annual interest and fee income for 3 microloans of $50,000. An organization making just three microloans a year is not sustainable and must rely on other sources of income to operate. Additionally, these entities are already out of compliance with program requirements and as a result, do not receive grants through the Microloan Program.
The graduated introduction of the minimum loan requirement will allow Intermediaries additional time to ramp up loan production. The proposed rule would require six microloans in 2015, eight microloans in 2016, and twelve loans per year in 2017 and thereafter. This graduated approach allows Intermediaries to adapt business practices to meet higher loan requirements. For example, rural Intermediaries may seek out new ways to utilize technology to more efficiently serve rural areas and therefore, make more microloans. Additionally, the graduated approach allows Intermediaries to anticipate and seek out future funding needs to meet increased microloan requirements. Finally, SBA will offer a series of training events for Intermediaries to share best practices related to building up an organization's capacity to make more microloans.
Accordingly, the Administrator of SBA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. SBA invites comment from members of the public who believe there will be a significant impact either on Microloan Intermediaries, or on microborrowers that receive funding from Microloan Intermediaries.
Community development, Equal employment opportunity, Loan programs-business, Reporting and recordkeeping requirements, Small business.
For the reasons stated in the preamble, SBA proposes to amend 13 CFR Part 120 as follows:
15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 636(a), (h) and (m), 650, 687(f), 696(3), and 697(a) and (e); Pub. Law 111-5, 123 Stat. 115, Pub. Law 111-240, 124 Stat. 2504.
(d)
(a) Except as otherwise provided in this paragraph, an Intermediary may only make Microloans to small businesses eligible to receive financial assistance under this part. A borrower may also use Microloan proceeds to establish a nonprofit child care business. An Intermediary may also make Microloans to businesses with an Associate who is currently on probation or parole, provided, however, that the Associate is not on probation or parole for an offense involving fraud or dishonesty or, in the case of a child care business, is not on probation or parole for an offense against children. Proceeds from Microloans may be used only for working capital and acquisition of materials, supplies, furniture, fixtures, and equipment. SBA does not review Microloans for creditworthiness.
The Microloan Revolving Fund (“MRF”) is a Deposit Account into which an Intermediary must deposit the proceeds from SBA loans, its contributions from non-Federal sources, and payments from its Microloan borrowers. * * *
(a)
(a)
(1) For fiscal year 2015, six microloans,
(2) For fiscal year 2016, eight microloans, and
(3) For fiscal years 2017 and following, twelve microloans per year.
(b)
(d) * * *
(2) Failure to close and fund the required number of microloans per year under § 120.716.
Federal Aviation Administration (FAA), DOT.
Advance notice of proposed rulemaking (ANPRM).
The FAA is considering amending its drug and alcohol testing regulations to require drug and alcohol testing of certain maintenance personnel outside the United States. Specifically, the FAA is considering requiring certain air carriers to ensure that all employees of certificated repair stations, and certain other maintenance organizations that are located outside the United States, who perform safety-sensitive maintenance functions on aircraft operated by that air carrier are subject to a drug and alcohol testing program that has been determined acceptable by the FAA Administrator and is consistent with the applicable laws of the country in which the repair station is located. Safety-sensitive maintenance functions include aircraft maintenance and preventive maintenance duties. This action is necessary to address a statutory mandate. The FAA has determined that it needs additional information to develop a proposed rule and assess its likely economic impact. This notice invites comments on a variety of issues related to proposing drug and alcohol testing requirements for the relevant employees of covered maintenance providers.
Send comments on or before May 16, 2014.
Send comments identified by docket number FAA-2012-1058 using any of the following methods:
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For technical questions concerning this action, contact Rafael Ramos, Office of Aerospace Medicine, Drug Abatement Division, AAM-800, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8442; facsimile (202) 267-5200; email:
For legal questions concerning this action, contact Neal O'Hara, Attorney, Regulations Division, AGC-240, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-5348.
For cost and benefit questions concerning this action, contact Nicole Nance, Office of Aviation Policy and Plans, APO-300, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3311.
See the “Additional Information” section for information on how to comment on this ANPRM and how the FAA will handle comments received. The “Additional Information” section also contains related information about the docket, privacy, and the handling of proprietary or confidential business information. In addition, there is information on obtaining copies of related rulemaking documents.
The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code (U.S.C.). 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. In carrying out part A (Air Commerce and Safety) of subtitle VII, the Administrator is directed to act consistently with obligations of the United States Government under an international agreement and to consider applicable laws and requirements of a foreign country. See 49 U.S.C. 40105(b)(1)-(2). Additionally, section 308(d)(2) of the FAA Modernization and Reform Act of 2012 (the Act), 49 U.S.C. 44733 requires that:
Not later than 1 year after the date of enactment of this section, the [FAA] Administrator shall promulgate a proposed rule requiring that all part 145 repair station employees responsible for safety-sensitive maintenance functions on part 121 air carrier aircraft are subject to an alcohol and controlled substances testing program determined acceptable by the Administrator and consistent with the applicable laws of the country in which the repair station is located.
The Act requires the FAA to propose alcohol and drug testing requirements for employees of part 145 repair stations located outside the United States who perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers, as the FAA currently does not require drug or alcohol testing for such personnel. Currently, as required under 14 CFR part 120, employees performing aircraft maintenance and preventive maintenance duties on part 121, 135 or 91.147 certificated air craft within the U.S. are required to be subject to drug and alcohol testing. The FAA believes Congress intended that preventive maintenance is a safety-sensitive maintenance function as currently described under 14 CFR part 120, therefore safety-sensitive maintenance functions include both aircraft maintenance and preventive maintenance duties.
While Congress did not address maintenance providers that are not certificated by the FAA in 49 U.S.C. 44733(d)(2), authorized persons performing safety-sensitive maintenance functions on aircraft operated by part 121 air carriers in accordance with 14 CFR 43.17, are substantially similar to the employees of part 145 repair stations in other countries for whom the FAA must propose drug and alcohol testing. Therefore, the FAA is also considering whether to require each part 121 air carrier to ensure that authorized persons performing safety-sensitive maintenance functions on aircraft operated by that part 121 air carrier in accordance with 14 CFR 43.17, and is not also a certificated part 145 repair station, are subject to drug and alcohol testing programs that meet the same or similar requirements as programs for their counterparts at part 145 repair stations located outside the United States.
Currently, there are approximately 120 part 145 repair stations located outside the United States whose employees perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers. There are also organizations in one other country outside the United States that are not part 145 repair stations, but whose employees perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers in accordance with 14 CFR 43.17.
The FAA's drug and alcohol testing regulations, contained in 14 CFR part 120, do not extend to companies or individuals who perform safety-sensitive functions, including, but not limited to, aircraft maintenance and preventive maintenance, outside of the United States. They currently apply to all air carriers and operators authorized to conduct operations under part 121 or part 135; all air traffic control facilities not operated by the FAA or by or under contract to the U.S. military; all air tour operators as defined in 14 CFR 91.147; and all part 145 certificate holders and contractors who employ individuals who perform, either directly or by contract, including subcontract at any tier, any of the following safety-sensitive functions: Flight crewmember duties, flight attendant duties, flight instruction duties, aircraft dispatcher duties, aircraft maintenance and preventive maintenance duties, ground security coordinator duties, aviation screening duties, air traffic control duties. Additionally, the regulations do not permit any part of the testing process, including specimen collection, to be conducted outside the United States. As described above, the Act requires that the FAA propose extending drug and alcohol testing to employees of part 145 repair stations located outside the United States who perform safety-sensitive maintenance functions on part 121 air carrier aircraft in a manner consistent with local laws.
International Civil Aviation Organization (ICAO) standards do not presently require ICAO Member States to establish (or direct industry to establish) testing programs to deter or detect inappropriate drug and alcohol use by aviation personnel with safety-sensitive responsibilities. However, a number of ICAO standards and recommended practices address misuse of drugs and alcohol by aviation personnel and recognize the potential hazard that such misuse may pose to aviation safety. For example, the recommended practice in paragraph 1.2.7.3 of Annex 1 (Personnel Licensing) to the Convention on International Civil Aviation (the “Chicago Convention”), states that ICAO Member States “. . . should ensure, as far as practicable, that all licen[s]e holders who engage in any kind of problematic use of substances are identified and removed from their safety-critical functions.” ICAO further recommends that “[r]eturn to the safety-critical functions may be considered after successful treatment or, in cases where no treatment is necessary, after cessation of the problematic use of substances and upon determination that the person's continued performance of the function is unlikely to jeopardize safety.” In addition, the standard in paragraph 2.5 of Annex 2 (Rules of the Air) to the Chicago Convention states that “[n]o person whose function is critical to the safety of aviation (safety-sensitive personnel) shall undertake that function while under the influence of any psychoactive substance, by reason of which human performance is impaired. No such person shall engage in any kind of problematic use of substances.” See also paragraphs 1.2.6, 1.2.7, 6.3.2.2, 6.4.2.2, and 6.5.2.2 of Annex 1 to the Chicago Convention.
The FAA's original drug testing rule, published in 1988 (53 FR 47024), required drug testing of certain aviation personnel, including some that performed safety-sensitive functions outside the United States. However, the effective date of the rule with respect to testing outside the territory of the United States was deferred on a number of occasions to permit related negotiations with governments and international organizations to continue in an orderly and effective fashion. In 1994, the FAA published two final rules related to drug and alcohol testing.
Under 49 U.S.C. 44733(d)(1), Congress mandated that the Secretary of State and the Secretary of Transportation, acting jointly, request the governments of countries that are members of ICAO to establish international standards for alcohol and drug testing of persons that perform safety-sensitive maintenance functions on commercial air carrier aircraft. The FAA strongly supports the development of such international standards and believes that they would help deter and detect drug and alcohol use that could compromise aviation safety.
Although ICAO standards and many countries' aviation regulations prohibit the use of drugs and alcohol by certain aviation personnel in circumstances in which such use may threaten aviation safety, many countries either do not require testing of such personnel to verify compliance or do not extend such testing to maintenance personnel. Congress, however, has now enacted legislation that requires the FAA to propose a rule requiring that all Part 145 repair station employees responsible for safety-sensitive maintenance functions on part 121 air carrier aircraft, not just those in the United States, be subject to a drug and alcohol testing program that is acceptable to the Administrator and consistent with the applicable laws of the country in which the repair station is located.
The FAA is aware, however, that establishing drug and alcohol testing requirements for such personnel presents complex practical and legal issues and could impose potentially significant costs on industry. Therefore, the FAA is issuing this ANPRM, rather than an NPRM, to seek comments from the public, as well as interested governments, to help inform the development of a proposed rule and the analysis of its economic impact.
The FAA expects to propose to allow the testing process to take place outside the United States.
The FAA understands that other countries may have a wide variety of laws and regulations concerning the use of and testing for alcohol and drugs. The FAA further understands that other countries' laws and regulations concerning other matters, such as personal privacy and employment, may affect whether and under what circumstances drug and alcohol testing may be conducted in those countries. Some countries might need to pass authorizing legislation before they could permit testing within their borders. The FAA also recognizes the diversity of policy, moral, and religious views that exist internationally regarding drug and alcohol use and testing.
The FAA seeks input from the public and interested governments to help inform the development of a proposed rule and the analysis of its economic impact. In responding to the requests for comment below, the FAA asks that commenters distinguish between responses relating to alcohol testing and those relating to drug testing, if the same comment does not apply to both.
To help the FAA expand its understanding of the laws and regulations of other countries that bear on drug and alcohol testing, the FAA requests the information described below regarding countries in which covered maintenance providers are located. It would be particularly helpful to receive the requested information regarding the countries' laws and regulations from the responsible government authorities of the relevant country, although private parties are also encouraged to provide information.
A 1. Is drug and alcohol testing of any aviation personnel required in that country, and, if so, for what categories of aviation personnel (e.g., pilots, flight attendants, maintenance personnel, flight dispatchers, others (please specify))?
A 2. Please provide an explanation of laws and regulations on other subjects, such as personal privacy or employment, which may affect the permissibility of drug and alcohol testing in the country, the circumstances under which such testing may be conducted, or the manner in which it may be conducted. Please include information on which categories of aviation personnel are subject to these requirements (e.g., pilots, flight attendants, maintenance personnel, flight dispatchers, others (please specify)). English language copies of the applicable laws and regulations would be greatly appreciated.
A 3. What types of testing are (a) permitted and (b) required under the laws and regulations of the country? Please address the following testing by type:
a. Pre-employment testing;
b. Random testing during employment;
c. Periodic testing during employment;
d. Testing based on a reasonable cause/suspicion that an employee is under the influence of alcohol or drugs while performing a safety-sensitive function or within a certain period of time before or after performing such a function;
e. Post-accident testing;
f. Return-to-duty and follow-up testing of individuals who have previously tested positive for alcohol or drugs;
g. Any other drug or alcohol testing (please specify)?
A 4. Should an FAA regulation include a provision to allow regulated parties to apply for a waiver
The FAA is considering addressing the program elements listed below in establishing the criteria for determining whether a drug and alcohol testing program is acceptable to the Administrator. Questions associated with each program element are listed below.
1.
• Pre-employment (for drugs only);
• Randomly during employment;
• After an accident;
• If there is reasonable cause/suspicion to believe that an individual is under the influence of alcohol or drugs while performing safety-sensitive functions or within a certain period of time before or after performing such functions;
• Return-to-duty testing and follow-up testing before and after returning an employee to duty who previously tested positive for alcohol or drugs or refused to submit to testing.
B1. For a program to be found acceptable to the Administrator, should the FAA require that testing be conducted under all of the above circumstances for which it is required in the U.S.? If not, under what circumstances should testing be required?
2.
B2a. Should an acceptable program require testing for, at a minimum, the drugs for which the FAA requires testing in the United States? If not, please provide information on which drugs should be tested for, at a minimum, to constitute an acceptable program.
B2b. At what concentrations should a test for alcohol, drugs, or their metabolites be considered positive? Should an acceptable program identify set ceiling concentrations above which tests must be considered positive? If so, what should those levels be?
3.
B3a. Does the country allow or require random drug and/or alcohol testing? If so, please describe the process.
B3b. If the country does not allow or require random drug and/or alcohol testing, are there laws to prohibit random testing?
B3c. If random testing is not allowed in a given country, what other methods could be used to successfully deter employees from misusing drugs or alcohol while performing safety-sensitive duties or within a certain period of time before performing such duties? How would such misuse be detected?
4.
B4a. What testing methods, if any, in addition to those currently permitted under part 120, should be permitted in programs outside the United States?
B4b. What standards should personnel and laboratories or other facilities in foreign countries be required to meet? Please address the following matters:
• Personnel qualifications;
• Measures to prevent adulteration, substitution, or mistaken identification of specimens;
• Measures to ensure drug and alcohol testing information is only released to authorized persons;
• Measures to determine whether there is a legitimate medical explanation for a positive test result;
• Other relevant considerations (please specify).
B4c. HHS-certified laboratories are not available outside the United States; therefore, should a program be acceptable if it allows the use of other laboratories that have been certified by DOT, another regulatory authority, or international organization as meeting equivalent or more stringent international standards?
5.
B5a. What are the minimum standards that employees who have violated drug and alcohol regulations should meet before they return to performing safety-sensitive maintenance functions?
B5b. If follow-up testing is not permitted, what other methods would ensure that an employee who has previously tested positive for alcohol or drugs does not misuse them again after returning to safety-sensitive duties?
The FAA recognizes that existing drug and alcohol testing programs in other countries may take various forms and must comply with the applicable laws and regulations of those countries. In some countries, drug and alcohol testing programs may be established by industry in accordance with regulations promulgated by a government agency, as is the case in the United States. In others, a government agency may administer a national drug and alcohol testing program. In yet others, industry participants may have voluntarily established drug and alcohol testing programs as a good business practice or for competitive advantage in the
C 1. Which drugs are most pervasively misused in the country? Please provide data to support this answer.
C 2. Are testing programs in the country:
a. Administered by a national regulatory authority;
b. Required to be established by industry participants under that country's laws and regulations;
c. Voluntarily established by industry participants;
d. Other (please specify)?
C 3. Please describe the process that is followed after an employee's drug test is confirmed positive or alcohol concentration is confirmed to be above the permitted limit, including at what point an individual would be removed from safety-sensitive duty.
C 4. If the country allows drug or alcohol testing, what protections does the country's legal system provide for the employee?
C 5. What are the potential consequences in that country, including, but not limited to, enforcement action by the relevant government authority, when an individual who performs safety-sensitive aviation duties tests positive for alcohol or drugs?
D 1. Should the FAA include within the scope of a proposed rule all authorized persons performing safety-sensitive maintenance functions on aircraft operated by part 121 air carriers in accordance with 14 CFR 43.17 ? Please include the rationale for why such personnel should or should not be subject to testing in any comment.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's questions about the economic impacts of a future proposed rule.
Congress mandated that the FAA propose a rule requiring that all employees of part 145 repair stations who perform safety-sensitive maintenance functions on part 121 air carriers' aircraft be subject to an alcohol and drug testing program that has been determined acceptable by the Administrator and is consistent with the applicable laws of the country in which the repair station is located. This mandate requires the FAA to propose drug and alcohol testing for employees of part 145 repair stations located outside the United States who perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers. The FAA understands that the implementation of such a regulation would impose costs on industry, the FAA, and perhaps other parties.
The FAA might also extend this testing requirement to include all authorized persons performing safety-sensitive maintenance functions on aircraft operated by part 121 air carriers in accordance with 14 CFR § 43.17. It is very difficult, however, for the FAA to reliably estimate such costs at this time, given the limited information about other countries' relevant laws and regulations, existing drug and alcohol testing programs in other countries, the actual and potential costs associated with conducting drug and alcohol testing in other countries (which is expected to vary), the cost of establishing testing programs in countries where they do not currently exist, and other relevant information. To help gauge the economic impact of a proposed rule, the FAA is requesting information from industry, as well as from the government of countries as described below. For all cost questions in this “Regulatory Notices and Analyses” section, please note who bears or would bear the costs (e.g., the employee; the air carrier for whom work is performed; the covered maintenance provider, a regulatory authority, other (please specify)) in any response provided.
In January 2006, the FAA issued a final rule entitled
The FAA is providing information from the 2005 Regulatory Evaluation to provide the public with an understanding of the types and level of detail of information needed to accurately estimate the economic impact of a rule for drug and alcohol testing of employees of covered maintenance providers who perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers. The FAA understands that the costs associated with drug and alcohol testing are likely to be different outside the United States and may vary from country to country. The FAA also understands that the specific details of drug and alcohol testing programs likely vary from country to country; however, the FAA expects that, for any drug and alcohol testing program, there will be costs associated with the testing process, training and education, developing and maintaining a testing program, and keeping (and possibly submitting) any documentation that may be required by national regulatory authorities or as part of a voluntary program's policies. The FAA requests that commenters also provide information about any other costs that may be relevant. The FAA is interested in data at the national level, from the members of associations, and from specific companies' programs. There were a number of basic assumptions that the FAA made in the 2005 Regulatory Evaluation. The FAA assumed the following:
• Maintenance providers affected by that rule would develop and implement their own programs, instead of being covered under another company's program or using a service agent with already-established procedures.
• An additional 2.5% of maintenance workers would be subject to the antidrug and alcohol misuse prevention programs under that rule.
• The number of employees in the maintenance sector grows at 1.5% per year.
• There would be two supervisors per contractor and that the attrition rate for mechanics was approximately 10% per year.
The FAA requests comments on these assumptions.
The FAA also assumed the following values:
• Price of a drug test—$45;
• Price of an alcohol test—$34;
• Time for a drug test (hours)—0.75;
• Time for an alcohol test (hours)—0.75;
• One instructor for every 20 supervisors and/or employees to be trained
• Maintenance employee salary—$33.07/hour;
• Maintenance supervisor salary—$39.68/hour;
• Instructor—$36.37/hour;
• Clerical—$18.62/hour;
The FAA requests comments on these assumptions.
All employees who are subject to drug and alcohol testing under FAA regulations in the United States are subject to the following types of tests: pre-employment (for drugs only), random, post-accident, reasonable cause/suspicion, return-to-duty, and follow-up. The 2005 Regulatory Evaluation considered the cost of testing to include the actual cost of the test, as well as the cost of the employee's time.
RE 1. For each year of the last 10 years, please provide the number of (a) drug and (b) alcohol tests conducted on aviation personnel who perform safety-sensitive functions and the number of positive tests, regardless of whether maintenance personnel are currently tested under the particular program described. If maintenance personnel are currently tested, please provide the number of (a) drug and (b) alcohol tests conducted on maintenance personnel that perform safety-sensitive functions and the number of positive tests for such personnel separately. For an example of the type of data that the FAA seeks, see the table below from the 2005 Regulatory Evaluation.
RE 2. What types of testing are required for (a) drugs and (b) alcohol (e.g., pre-employment, post-accident, reasonable cause/suspicion, random, return-to-duty, follow-up, other (please specify))?
RE 3. What types of personnel are subject to (a) drug and (b) alcohol testing in the relevant country, company, or among the members of the association (e.g., pilots, flight attendants, air traffic controllers, flight dispatchers, maintenance personnel, other (please specify))?
RE 4. Is drug and alcohol testing currently conducted in the relevant country? If not, how would a requirement to drug and alcohol test be met (i.e. travel to a different country, implement a testing program within the relevant country, or other (please specify))? If traveling to another country, what is the distance from the relevant country? How much time will be spent traveling?
RE 5. What is the cost of (a) the drug test and (b) the alcohol test per person? Do or would the costs differ for different categories of tests (i.e., pre-employment, post-accident, reasonable cause/suspicion, random, periodic, return-to-duty, follow-up, or other (please specify))? How long does it take for an employee to complete each of these tests? If screening tests for (a) drugs or (b) alcohol are or would be conducted, followed by confirmatory testing when the screening test is positive, what are or would be the costs associated with conducting (a) the screening test and (b) the confirmatory test?
RE 6. How many maintenance personnel in the relevant country or in a particular company or group of companies perform safety-sensitive maintenance functions? How many of them perform safety-sensitive maintenance functions on aircraft operated by part 121 air carriers (and are not directly employed by such air carriers)? How many are subject to drug and alcohol testing?
RE 7. How many new employees are hired to perform safety-sensitive maintenance functions per year? How many maintenance employees who perform safety-sensitive functions leave per year? The FAA will need to be able to estimate testing costs in future years. See the table below for an example from the 2005 Regulatory Evaluation.
RE 7. What is or would be the annual cost per person of each category of staff required to conduct testing (collection personnel, laboratory personnel, other (please specify))?
In the United States, for each drug and alcohol testing program, the employer must train employees and supervisors on the effects and consequences of drug use on personal health, safety, and work environment, as well as the manifestations and behavioral cues that may indicate drug use and abuse. The regulations do not specify the amount of time associated with this training; in the 2005 Regulatory Evaluation, the FAA assumed 30 minutes.
Under current regulations, supervisors who will make reasonable cause/suspicion determinations must receive at least 60 minutes for each program (for a total of 120 minutes). Supervisors must also receive recurrent training under the FAA's drug testing rules. The rules do not say when the recurrent training must occur or how long it must be; however, the FAA recommends recurrent training every 12 to 18 months and that it include an element on alcohol testing. For the 2005 Regulatory Evaluation, the FAA assumed that the recurrent training occurs every 12 months and takes 60 minutes.
RE 8. What are or would be the initial and recurrent training and education costs, on a per person basis? For:
a. Employees subject to testing,
b. Supervisors,
c. Persons authorized to determine whether there is reasonable cause/suspicion to believe that an employee may be under the influence of alcohol or drugs while performing, or within a certain amount of time before or after performing, a safety-sensitive function and that the employee should be tested on that basis,
d. Specimen collectors,
e. Persons responsible for analyzing specimens for alcohol, drugs, or their metabolites,
f. Persons involved in determining or recommending the appropriate course of treatment and/or education for an employee who has tested positive for drugs or alcohol,
g. Other personnel involved in the drug or alcohol testing program (please specify)?
RE 9. How many personnel in category (g) of question RE8 receive or would receive (1) initial and (2) recurrent training and/or education annually?
RE 10. What was or would be the cost of developing any necessary training program initially, including materials, and what is or would be the annual cost, including materials, of maintaining it? What types of training materials are or would be required?
RE 11. What are or would be the annual costs of the staff required to conduct training? How many staff would be required to conduct training?
RE 12. How often is/must/would recurrent training be conducted?
Under the rule for which the 2005 Regulatory Evaluation was conducted, it was assumed that each affected maintenance provider would have to devote resources to developing drug and alcohol testing programs. In addition, each affected maintenance provider would have to spend time to produce information required to either obtain an operations specification for its part 145 certificate or register its drug and alcohol program with the FAA. At the FAA, the submitted information would have to be processed and entered into the appropriate database.
In calculating program development costs in the 2005 Regulatory Evaluation, the FAA assumed 16 hours for start-up program development. The FAA estimated that, for affected maintenance providers that chose to register with the FAA, it would take each one 20 minutes at $21 per hour to gather the required information and submit it to the FAA. At the FAA, the submitted information has to be processed. In the 2005 Regulatory Evaluation, the FAA estimated that an administrative assistant, an FG-7 being paid at about $25.00 per hour, would enter this information into a database. The FAA assumed that administrative assistants would need 10 minutes to input the information.
RE 13. How much would it cost (besides training costs already addressed above or cost to do the actual testing) to develop a drug and alcohol testing program? What would be the annual program maintenance costs (besides training costs already addressed above)? What items are included in both of these types of costs?
RE 14. Is the drug and alcohol testing program regulated by an agency of a government? If so, how much time per year is required to prepare and maintain required documentation and submit information to the responsible regulatory authority? What information items must be submitted? How long does it take for the company to gather this information? How long does it take for the responsible regulatory authority to process the submission? Who at the responsible regulatory authority processes these submissions?
RE 15. How many submissions must be made per year?
RE 16. What are or would be the costs of staff required to evaluate employees who have tested positive for drugs or alcohol and to provide any needed education and/or treatment? What would the cost of treatment be, in terms of employees time and opportunity cost? How many such staff would be needed? What are or would be the other costs associated with any program of treatment and/or education?
RE 17. What are or would be the costs for a laboratory in the relevant country to obtain HHS, its equivalent, or more stringent certification, including both fees and the costs of any actions that would need to be taken to meet the applicable certification standards? Please specify the certification standards being used as a point of reference in any comments.
RE 18. Is shipping specimens to an existing HHS-certified or DOT approved laboratory a reasonable alternative? What would be the costs associated with packaging and shipping specimens to one of the existing HHS-certified laboratories for testing?
The FAA's drug testing regulations require each company to document both the initial and recurrent training for supervisory personnel who make reasonable cause determinations. In the 2005 Regulatory Evaluation, the FAA assumed that the cost of this documentation is about $1.30 per record, which included record creation, filing, and storage. The same sort of documentation is needed for the supervisors who determine whether reasonable suspicion exists concerning probable alcohol misuse. The FAA assumed the cost of this documentation is also about $1.30 per record. The FAA's existing regulations require documentation of such things as:
• Training of employees in the requirements of the antidrug program;
• All reasonable cause/suspicion cases;
• If a post-accident alcohol test is not administered within 2 hours following the accident, the reasons the test was not promptly administered;
• If a post-accident alcohol test is not administered within 8 hours following the accident, the reasons the test was not promptly administered;
• Refusal to submit to a required drug or alcohol test (the company must also notify the FAA); and
• Medical Review Officer (MRO) reports of verified positive drug test results for employees holding airman medical certificates issued by the FAA under 14 CFR part 67. (Both the MRO and the company must also notify the FAA.)
RE 19. What are or would be the annual recordkeeping or other documentation costs associated with the drug and/or alcohol testing program?
RE 20. Who maintains or would maintain any required documentation (e.g., employer, government agency, other (please specify))?
RE 21. What documentation is or would be required to be maintained by and/or submitted to the responsible regulatory agency? How much time would be needed to prepare and/or submit the documentation?
RE 22. What is the format for recordkeeping?
The FAA indicated in the 2005 Regulatory Evaluation that it believed it was possible that illegal drug use or alcohol misuse by members of the aviation community may have contributed to additional accidents or incidents. The FAA acknowledged the fact that there had not been any aviation accidents directly attributed to a maintenance worker misusing or abusing drugs or alcohol.
The 2005 Regulatory Evaluation indicated that, while there had been no documented aviation accidents in the United States in the time period analyzed that were directly attributed to misuse or abuse of drugs or alcohol by maintenance personnel, the FAA believed it was possible that such misuse or abuse may have contributed to aviation-related accidents. The FAA believed it was prudent to base the estimated benefits of the final rule on avoiding one part 135 accidents over the next 10 years, thus avoiding a total of 5 fatalities and a destroyed or damaged airplane. The FAA estimated the benefits of avoided fatalities at $15 million. This number of accidents, fatalities, and destroyed airplanes was less than 1% of all maintenance-related accidents that had occurred; the FAA considered these benefits to be reasonable. The total benefits in the 2005 regulatory evaluation were calculated by assuming an equally likely chance of avoiding these accidents in each of the next 10 years. Total benefits summed to $15.07 million ($10.59 million, discounted).
RE 22. What benefits has the relevant country/company seen from drug and alcohol testing?
RE 23. Are you aware of any accidents in which drug or alcohol misuse by safety-sensitive aviation personnel (e.g. pilots, flight attendants, maintenance personnel, air traffic controllers, flight dispatchers, other (please specify)) may have caused or contributed to the accident? Please describe the circumstances and identify the type of safety-sensitive personnel whose drug or alcohol misuse may have caused or contributed to the accident. Were there any fatalities, injuries, or damage to aircraft? If so, please describe. How many confirmed positive drug and alcohol tests occur annually in the country/company?
RE 24. Have industry participants experienced a savings in insurance premiums as a result of drug and alcohol testing?
In keeping with the United States' obligations under the Chicago Convention, it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that exactly correspond to the regulations being considered for proposal, as ICAO neither requires nor recommends that Member States implement testing of aviation personnel with safety-sensitive responsibilities for alcohol or drugs. As discussed in the Background section of this preamble, however, there are a number of ICAO standards and recommended practices that address the misuse of drugs and alcohol by such personnel and recognize the potential hazard that such substance misuse may pose to aviation safety.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this ANPRM qualifies for the categorical exclusion identified in paragraph 312d and involves no extraordinary circumstances.
The FAA is soliciting comments on the potential costs and benefits of the initiatives in the ANPRM. This ANPRM has been drafted and reviewed in accordance with Executive Order 12866 and Executive Order 13563. This ANPRM has been reviewed by the Office of Management and Budget and is considered “significant” under the Department of Transportation's Regulatory Policies and Procedures.
The FAA has analyzed this ANPRM under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this ANPRM under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and likely would not have a significant adverse effect on the supply, distribution, or use of energy.
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The Agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, or a
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this ANPRM. Before acting on this ANPRM, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The Agency may change its potential proposals in light of the comments it receives.
Proprietary or Confidential Business Information: Do not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to any of the persons identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the Agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
Electronic copies of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Federal Digital System at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this ANPRM, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Food and Drug Administration, HHS.
Proposed rule.
The Food and Drug Administration (FDA or Agency) is proposing to amend its regulation regarding the confidentiality of data and information in and about new animal drug application files to change when certain approval-related information would be disclosed by the Agency. This change would ensure that the Agency is able to update its list of approved new animal drug products within the statutory timeframe. It would also permit more timely public disclosure of approval-related information, increasing the transparency of FDA decision making in the approval of new animal drugs.
Submit either electronic or written comments by June 2, 2014. If FDA receives any significant adverse comments, the Agency will publish a document in the
You may submit comments, identified by Docket No. FDA-2014-N-0108, by any of the following methods:
Submit electronic comments in the following way:
•
Submit written submissions in the following ways:
•
Scott Fontana, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0656.
Section 512(i) (21 U.S.C. 360b(i)) was added to the Federal Food, Drug, and Cosmetic Act (the FD&C Act) by the Animal Drug Amendments of 1968 (Pub. L. 90-399). Section 512(i) requires the conditions and indications of use of a new animal drug to be published in the
In 1974, FDA revised its regulations regarding the confidentiality of information in applications in § 135.33a (21 CFR 135.33a) to include provisions of the Freedom of Information Act (Pub. L. 89-487). That revision established that public disclosure by the Agency of certain data and information in an NADA file could not occur before the
In 1988, the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100-670) added section 512(n)(4)(A) of the FD&C Act, which states that the Agency shall publish a list of approved new animal drug products and revise that list every 30 days to include each new animal drug that has been approved during that 30-day period. This list, as well as related patent information and marketing exclusivity periods, is contained in a document generally known as the “Green Book,” available at the Agency's public Web site at
The editorial and clearance processes for publishing the
FDA is proposing to amend § 514.11 to change the time when certain approval-related information in an NADA file would be publicly disclosed, from when notice of the approval is published in the
This proposed rule is a companion to the direct final rule published elsewhere in this issue of the
Consistent with FDA's procedures on direct final rulemaking, we are publishing elsewhere in this issue of the
FDA is providing a comment period for the proposed rule of 75 days after the date of publication in the
Comments that are frivolous, insubstantial, or outside the scope of the proposed rule will not be considered significant or adverse under this procedure. For example, a comment recommending a regulation change in addition to those in the proposed rule would not be considered a significant adverse comment unless the comment states why the proposed rule would be ineffective without the additional change. In addition, if a significant adverse comment applies to an amendment, paragraph, or section of this proposed rule and that provision can be severed from the remainder of the rule, FDA may adopt as final those provisions of the proposed rule that are not the subject of a significant adverse comment.
If FDA does not receive significant adverse comment in response to the proposed rule, the Agency will publish a document in the
A full description of FDA's policy on direct final rule procedures may be found in a guidance document published in the
FDA is issuing this proposed rule under section 512(c) of the FD&C Act. This section gives the Secretary of Health and Human Services the authority to approve new animal drug applications. In addition, section 701(a) of the FD&C Act (21 U.S.C. 371(a)) gives FDA general rulemaking authority to issue regulations for the efficient enforcement of the FD&C Act.
FDA has 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 examined the impacts of this proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct 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, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this proposed rule is not a significant regulatory action as defined by Executive Order 12866.
The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any
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 $141 million, using the most current (2012) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.
FDA has analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the proposed rule, if finalized, would 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 tentatively concludes that the proposed 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.
This proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) is not required.
Interested persons may submit either electronic comments regarding this document to
Administrative practice and procedure, Animal drugs, Confidential business information, Reporting and recordkeeping requirements.
Therefore under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 514 be amended as follows:
21 U.S.C. 321, 331, 351, 352, 356a, 360b, 371, 379e, 381.
(b) The existence of an NADA file will not be disclosed by the Food and Drug Administration before the application has been approved, unless it has been previously disclosed or acknowledged.
(d) If the existence of an NADA file has been publicly disclosed or acknowledged before the application has been approved, no data or information contained in the file is available for public disclosure, but the Commissioner may, in his discretion, disclose a summary of such selected portions of the safety and effectiveness data as are appropriate for public consideration of a specific pending issue, i.e., at an open session of a Food and Drug Administration advisory committee or pursuant to an exchange of important regulatory information with a foreign government.
(e) After an application has been approved, the following data and information in the NADA file are immediately available for public disclosure unless extraordinary circumstances are shown:
(2) * * *
(ii) For an NADA approved after July 1, 1975, a summary of such data and information prepared in one of the following two alternative ways shall be publicly released when the application is approved.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Missouri State Implementation Plan (SIP), the 40 CFR part 62 state plans for designated facilities and pollutants (111(d)), and the 40 CFR part 70 operating permits program, which were received on August 25, 2011, May 8, 2012, and February 11, 2013, respectively. The revisions submitted by the state move definitions currently in individual rules into one rule and eliminates the risk of the same term being defined differently for different rules. This action provides more clarity for the regulated public. These revisions do not have an adverse affect on air quality. EPA's proposed approval of these rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).
Comments on this proposed action must be received in writing by April 16, 2014.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2013-0724, by mail to Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Paula Higbee, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7028, or by email at
In the final rules section of the
Federal Emergency Management Agency, DHS.
Proposed rule; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed rule concerning proposed flood elevation determinations for Washington County, Pennsylvania (All Jurisdictions).
The withdrawal is effective on March 17, 2014.
You may submit comments, identified by Docket No. FEMA-B-1152, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On November 2, 2010, FEMA published a proposed rulemaking at 75 FR 67308-67310, proposing flood elevation determinations along one or more flooding sources in Washington County, Pennsylvania. Because FEMA has or will be issuing a Revised Preliminary Flood Insurance Rate Map, and if necessary a Flood Insurance Study report, featuring updated flood hazard information, the proposed rulemaking is being withdrawn. A Notice of Proposed Flood Hazard Determinations will be published in the
42 U.S.C. 4104; 44 CFR 67.4.
Federal Emergency Management Agency, DHS.
Proposed rule; withdrawal.
The Federal Emergency Management Agency (FEMA) is withdrawing its proposed rule concerning proposed flood elevation determinations for Bennington County, Vermont (All Jurisdictions).
This withdrawal is effective on March 17, 2014.
You may submit comments, identified by Docket No. FEMA-B-1179, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On April 6, 2011, FEMA published a proposed rulemaking at 76 FR 19020-19021, proposing flood elevation determinations along one or more flooding sources in Bennington County, Vermont. Because FEMA has or will be issuing a Revised Preliminary Flood Insurance Rate Map, and if necessary a Flood Insurance Study report, featuring updated flood hazard information, the proposed rulemaking is being withdrawn. A Notice of Proposed Flood Hazard Determinations will be published in the
42 U.S.C. 4104; 44 CFR 67.4.
Federal Emergency Management Agency, DHS.
Proposed notice; withdrawal.
The Federal Emergency Management Agency (FEMA) is
This withdrawal is effective March 17, 2014.
You may submit comments, identified by Docket No. FEMA-B-1311, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
On May 21, 2013, FEMA published a proposed notice at 78 FR 29770, proposing flood hazard determinations in Brown County, Texas. FEMA is withdrawing the proposed notice.
42 U.S.C. 4104; 44 CFR 67.4.
Federal Communications Commission.
Proposed rule; extension of comment period.
The Federal Communications Commission extends the deadline for filing reply comments on the Commission's
The reply comment period for the proposed rule published January 15, 2014 (79 FR 2615), is extended. Submit reply comments on or before May 16, 2014.
You may submit comments, identified by WT Docket No. 13-301 or FCC 13-157, by any of the following methods:
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
Amanda Huetinck of the Mobility Division, Wireless Telecommunications Bureau, at (202) 418-7090 or
Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS).
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
By this document, we extend the deadline for filing reply comments in response to the
On February 28, 2014, AeroMobile Communications Limited (“AeroMobile”) and Panasonic Avionics Corporation (“Panasonic”), jointly, and CTIA—The Wireless Association (“CTIA”) filed requests to extend the reply comment deadline in response to the
Specifically, the Joint Motion states that more time is necessary for consultations regarding “the technical studies and authorization regime supporting in-flight mobile communications in Europe and
The CTIA Request similarly states that an extension is needed so that parties can “conduct much needed interference and other technological analyses, consider other existing studies beyond those discussed in the
It is the general policy of the Commission that extensions of time shall not be routinely granted. However, under these circumstances, we agree that an extension of time to file reply comments is warranted to ensure that the Commission obtains a complete and thorough technical record in response to the
Federal Communications Commission.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS is proposing two actions in this rulemaking: A requirement for daily Vessel Monitoring System (VMS) catch reporting for vessels declared to fish in the Eastern U.S./Canada Area; and the
Comments must be received by April 16, 2014.
You may submit comments on this document, identified by NOAA-NMFS-2013-0179, by any of the following methods:
•
•
Copies of Framework 50 and its associated documents, including the environmental assessment (EA), the Regulatory Impact Review (RIR), and the Final Regulatory Flexibility Analysis (FRFA) prepared by the Council and NMFS are available from John K. Bullard, Regional Administrator, NMFS Northeast Regional Office (NERO), 55 Great Republic Drive, Gloucester, MA 01930. The previously listed documents are also accessible via the Internet at:
For information on the Eastern U.S./Canada Area reporting requirements in this rule contact Liz Sullivan, Fishery Management Specialist, phone: 978-282-8493. For information on the unused ACE
In commenting on a proposed rule (78 FR 18188; March 25, 2013) that included a measure to correct this inadvertent language holdover, the New
Based on the second Council letter, we announced on July 10, 2013, that Eastern U.S./Canada Area catch monitoring was being changed from the interim method to a system that apportions catch based on area fished, consistent with the recommendation of the Council and the 2013 proposed rule measure. We published the final rule to finalize this monitoring method on August 29, 2013 (78 FR 53363). Accounting for all FY 2013 trips has been retroactively revised from the interim approach to the area fished method. Such changes were considered to be within the purview of the Regional Administrator (§ 648.85(a)(3)(ii)(A)).
The Amendment 16 final rule published on April 9, 2010 (75 FR 18262) intended to remove the requirement for sector vessels to submit daily VMS catch reports when declared into the U.S./Canada Management Area, as well as the two Eastern U.S./Canada Special Access Programs (SAPs; the Closed Area II Yellowtail Flounder/Haddock SAP and the Eastern U.S./Canada Haddock SAP), because the requirement for a weekly sector manager report was determined to be sufficient by the Regional Administrator. This was captured in the preamble of the proposed and final rules for Amendment 16; however, this change was not reflected in the regulatory text at § 648.85(a)(3)(v). As part of a rulemaking on August 29, 2013 (78 FR 53363), we announced our intention to revert to the original requirement for sector vessels declared to fish in the Eastern U.S./Canada Area to submit daily VMS catch reports. We did not, nor do not, intend to change this requirement for vessels declared only into the Western U.S./Canada Area. Because the daily reporting requirement is already specified in the regulations (§ 648.85(a)(3)(v)) for vessels declared into the Eastern U.S./Canada Area, this provision need not change, except to clarify that the daily reporting requirement does not apply to vessels declared only into the Western U.S./Canada Area. Accordingly, this action proposes to modify the reporting requirement of § 648.85(a)(3)(v) such that only sector vessels that have declared into the Eastern U.S./Canada Area would be required to submit daily catch reports. The proposal also will clarify that, for vessels declared only into the Western U.S./Canada Area, sectors must continue to submit weekly sector catch reports. The intent of this action is to improve the accuracy of reporting of the Eastern U.S./Canada Management Area.
To address this possibility, we issued, in conjunction with the rule implementing Framework Adjustment 50 for FY 2013, rulemaking under section 305(d) of the Magnuson-Stevens Act to clarify how accounting for year-to-year unused sector ACE carryover would be handled beginning in FY 2014 (78 FR 26172; May 3, 2013). The applicable regulations outlining the carryover system, including the revisions made in Framework Adjustment 50, can be found in § 648.87(b)(1)(i)(F)(
Our clarification specified that sectors would be held accountable for any overage of the sector-specific sub-ACL if the total fishery level ACL were exceeded in any given year, consistent with the existing accountability measures regulations. The clarification makes explicitly clear that sectors would be accountable for carried over-catch used if the total ACL is exceeded, except for a nominal
Given the need to complete other components of the Framework 50 rulemaking for timely implementation at the start of the FY 2013, NMFS was unable to fully develop and analyze an appropriate
1. VTR serial number or other universal ID specified by the Regional Administrator;
2. Date fish were caught and statistical area in which the fish were caught; and
3. Total pounds of cod, haddock, yellowtail flounder, winter flounder, witch flounder, pollock, American plaice, redfish, Atlantic halibut, ocean pout, Atlantic wolffish, and white hake kept (in pounds, live weight) in each broad stock area, specified in § 648.10(k)(3), as instructed by the Regional Administrator.
The regulations at § 648.85(a)(3)(v) currently require sector vessels to submit daily reports if they declare in the Eastern U.S./Canada Area. As discussed in the Background above, the Amendment 16 final rule intended to remove the requirement for daily reporting, pursuant to the authority granted to the NMFS Regional Administrator by the FMP, as it was determined at that time that the weekly sector catch report was sufficient. However, this change was not reflected in the regulatory text, and so the current proposal to revert to the original requirement of daily reporting does not require a substantive change to the regulations for vessels declared into the Eastern U.S./Canada Management Area.
Pursuant to the regulations at § 648.10(k)(2), vessels who have declared their intent to fish within multiple Broad Stock Areas must submit a trip-level hail report via VMS. This report must include the landed weight of regulated species and total retained catch, unless the vessel is fishing in a special management program such as the Eastern U.S./Canada Area, and is required to submit daily reports via VMS. As proposed in this rule, by reverting to the daily reporting requirement, a sector vessel on a trip declared into the Eastern U.S./Canada Area and fishing in multiple Broad Stock Areas would be exempt from the requirement to submit a trip-level catch report.
By using a nominal amount of the sector-specific sub-ACL in the derivation process, the resulting 1-percent amount provided as the
As an example:
• If the FY 2014 sector sub-ACL for species X is 100 mt, the
• If the FY 2013 sector sub-ACL species X is 200 mt, up to 20 mt (10 percent of the FY 2013 sub-ACL) could be carried over from FY 2013 to 2014.
• Of this 20 mt, sectors would not be required to repay 1 mt (i.e., the
The 1-percent
The Council is still in the process of finalizing for recommendation to NMFS the FY 2014 ABCs and ACLs for many groundfish stocks. These values will likely be finalized in late spring 2014, for use in FY 2014, which begins May 1, 2014. If the
To assist the public in providing effective comment on the
1. Is the concept of a
2. Is the
3. Are there alternate
In responding to these questions we remind the public that full-scale revision of the Amendment 16 carryover program would require a further Council-initiated action.
We considered higher amounts as the
NMFS proposes to modify the text at § 648.14(k)(11)(iv) to clarify the reporting requirements by removing the word “landings” from the paragraph.
NMFS proposes to modify the text at § 648.85(a)(3)(v) in order to clarify that the authority granted to the NMFS Regional Administrator to remove the daily reporting requirements for special management programs is separate and distinct from the regulatory requirement. This modification would move the language explaining the Regional Administrator's authority to a new subsection (§ 648.85(a)(3)(v)(B)) with a further clarification that the Regional Administrator's authority also includes modification of reporting requirements.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the management measures in this proposed rule are consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
Pursuant to the procedures established to implement section 6 of Executive Order (E.O.) 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
This proposed rule does not contain policies with federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rule contains two actions: A requirement for daily VMS catch reporting for vessels declared to fish in the Eastern U.S./Canada Area; and the
The Regulatory Flexibility Act (RFA) requires Federal agencies to consider disproportionality and profitability to determine the significance of regulatory impacts. There are no disproportionate impacts as a result of the two actions being proposed. Analyses being prepared for an upcoming multispecies action indicate 822 unique entities in the fishery, 806 of which are considered small business entities under Small Business Administration criteria and 16 that are considered large entities. These 16 large entities have ownership interest in finfish businesses, but obtain the majority of their gross sales from shellfish-related businesses. All businesses obtaining the majority of their gross sales from finfish are considered small businesses.
The change in VMS reporting frequency for vessels participating in the Eastern U.S./Canada Area will require catch data to be transmitted to NMFS once daily. Vessels participating in the overarching multispecies fishery already have onboard VMS units and submit various types of reports and declarations to participate in the fishery. The proposed change in reporting frequency implements the daily report structure contemplated in conjunction with Amendment 16 to the FMP. Previous analysis for Paperwork Reduction Act (PRA) collection Office of Management and Budged Control No. 0648-0202 estimated the cost of daily reporting as up to $1.00 per day. Vessels that have not previously submitted daily reports or that have not participated in the area will now be required to report more frequently, thereby increasing VMS operating costs. The reporting requirement would be imposed on all vessels choosing to fish in the area; fishing in the mandatory reporting area is voluntary. Moreover, as noted below, the charge is small enough and affects all vessels equally. Therefore, this rule will not result in disproportionate impacts on small entities.
In FY 2012, 62 sector vessels fished in the Eastern Area, taking a total of 398 sector trips, with an assumed length of 4 fishing days, based on the assumed trip length information used in the PRA analysis. The expected cost of sending a daily report on a per vessel basis is approximately $25.68 annually and $4.00 per trip. This cost is not expected to affect profitability for either small or large entities. Information compiled for FY 2011 in the final report on the performance of the NE multispecies fishery published by the Northeast Fisheries Science Center indicates the lowest nominal revenue from groundfish-specific landings was $730 per trip (vessels category of < 30 feet (9.1m) in length overall). Thus, the cost of daily reporting will be less than 0.5 percent of the lowest average nominal revenue in the fishery. Given that larger vessels or entities whose business involves multiple vessels of varying sizes would realize even lower potential operating cost, the impacts from daily reporting relative to nominal revenue are miniscule. Vessels may also land non-groundfish species in conjunction with fishing effort in the area, further reducing the potential impact of daily reporting costs on nominal revenue. Based on this, NMFS asserts the profitability criterion is not met.
Similarly, the
Prior rulemaking for Amendment 16 allowed sectors to carry over up to 10 percent of their overall allocation if, for any reason, they were unable to utilize that allocation in one FY. This allowance is designed to allow flexibility so that vessels do not fish during unsafe conditions to utilize their last units of catch allocations. The ability to carry over allocation is simultaneously constrained by a fishery-wide ACL that cannot be exceeded. Prior rulemaking created a provision for a
For these reasons, the proposed rule, if implemented, will not have a significant economic impact on a substantial number of small entities. Accordingly, an initial regulatory flexibility analysis is not required and none has been prepared.
Fisheries, Fishing, Recordkeeping and reporting requirements.
For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:
16 U.S.C. 1801
(k) * * *
(11) * * *
(iv)
(a) * * *
(3) * * *
(v)
(
(
(
(B) The Regional Administrator may remove or modify the reporting requirement for sector vessels in § 648.85(a)(3)(v) in a manner consistent with the Administrative Procedure Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We propose to approve 19 sector operations plans and contracts for fishing year (FY) 2014, provide Northeast (NE) multispecies annual catch entitlements (ACE) to these sectors, and grant regulatory exemptions. We request comment on the proposed sector operations plans and contracts; the environmental assessment (EA) analyzing the impacts of the operations plans; and our proposal to grant 20 of the 28 regulatory exemptions requested by the sectors. Approval of sector operations plans is necessary to allocate ACE to the sectors and for the sectors to operate. The NE Multispecies Fishery Management Plan (FMP) allows limited access permit holders to form sectors, and requires sectors to submit their operations plans and contracts to us, NMFS, for approval or disapproval. Approved sectors are exempt from certain effort control regulations and receive allocation of NE multispecies (groundfish) based on its members' fishing history.
This rule also announces the target at-sea monitoring (ASM) coverage rate for sector trips for FY 2014.
Written comments must be received on or before April 1, 2014.
You may submit comments on this document, identified by NOAA-NMFS-2014-0001, by any of the following methods:
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Brett Alger, Fishery Management Specialist, phone (978) 675-2153, fax (978) 281-9135. To review
Amendment 13 to the FMP (69 FR 22906, April 27, 2004) established a process for forming sectors within the NE multispecies fishery, implemented restrictions applicable to all sectors, and authorized allocations of a total allowable catch (TAC) for specific NE multispecies species to a sector. Amendment 16 to the FMP (74 FR 18262, April 9, 2010) expanded sector management, revised the two existing sectors to comply with the expanded sector rules (summarized below), and authorized an additional 17 sectors. Framework Adjustment (FW) 45 to the FMP (76 FR 23042, April 25, 2011) further revised the rules for sectors and authorized 5 new sectors (for a total of 24 sectors). FW 48 to the FMP (78 FR 26118) eliminated dockside monitoring requirements, revised ASM requirements, removed the prohibition on requesting an exemption to allow access in year-round groundfish closures, and modified minimum fish sizes for NE multispecies stocks.
The FMP defines a sector as “[a] group of persons (three or more persons, none of whom have an ownership interest in the other two persons in the sector) holding limited access vessel permits who have voluntarily entered into a contract and agree to certain fishing restrictions for a specified period of time, and which has been granted a TAC(s) [
The NE multispecies sector management system allocates a portion of the NE multispecies stocks to each sector. These annual sector allocations are known as ACE. These allocations are a portion of a stock's annual catch limit (ACL) available to commercial NE multispecies vessels, based on the collective fishing history of a sector's members. Currently, sectors may receive allocations of most large-mesh NE multispecies stocks with the exception of Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout. A sector determines how to harvest its ACEs and may decide to consolidate operations to fewer vessels.
Because sectors elect to receive an allocation under a quota-based system, the FMP grants sector vessels several “universal” exemptions from the FMP's effort controls. These universal exemptions apply to: Trip limits on allocated stocks; the Georges Bank (GB) Seasonal Closure Area; NE multispecies days-at-sea (DAS) restrictions; the requirement to use a 6.5-inch (16.5-cm) mesh codend when fishing with selective gear on GB; portions of the Gulf of Maine (GOM) Rolling Closure Areas; and the ASM coverage rate for sector vessels fishing on a monkfish DAS in the Southern New England (SNE) Broad Stock Area (BSA) with extra-large mesh gillnets. The FMP prohibits sectors from requesting exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and reporting requirements.
We received operations plans and preliminary contracts for FY 2014 from 19 sectors. The operations plans are similar to previously approved versions, but include additional exemption requests and proposals for industry-funded ASM plans. Five sectors did not submit operations plans or contracts. Four of these sectors now operate as state-operated permit banks as described below.
We have made a preliminary determination that the proposed 19 sector operations plans and contracts, and 20 of the 28 regulatory exemptions, are consistent with the FMP's goals and objectives, and meet sector requirements outlined in the regulations at § 648.87. We summarize many of the sector requirements in this proposed rule and request comments on the proposed operations plans, the accompanying EA, and our proposal to grant 20 of the 28 regulatory exemptions requested by the sectors, but deny the rest. Copies of the operations plans and contracts, and the EA, are available at
The five sectors that chose not to submit operations plans and contracts for FY 2014 are the Tri-State Sector, and four state-operated permit bank sectors as follows: The State of Maine Permit Bank Sector, the State of New Hampshire Permit Bank Sector, the Commonwealth of Massachusetts Permit Bank Sector, and the State of Rhode Island Permit Bank Sector. Amendment 17 to the FMP allows a state-operated permit bank to receive an allocation without needing to comply with the administrative and procedural requirements for sectors (77 FR 16942, March 23, 2012). These permit banks are required to submit a list of participating permits to us by a date specified in the permit bank's Memorandum of Agreement, typically April 1.
Sectors typically submit membership information to us on December 1 prior to the start of the FY, which begins each year on May 1. Due to uncertainty regarding ACLs for several stocks in FY 2014 and a corresponding delay in distributing a letter describing each vessel's potential contribution to a sector's quota for FY 2013, we extended the deadline to join a sector until March 6, 2014. Based on sector enrollment trends from the past 4 FYs, we expect sector participation in FY 2014 will be similar. Thus, we are using FY 2013 rosters as a proxy for FY 2014 sector membership and calculating the FY 2014 projected allocations in this proposed rule. In addition to the membership delay, all permits that change ownership after December 1, 2013, retain the ability to join a sector through April 30, 2014. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2014, to withdraw from a sector and fish in the common pool for FY 2014. We will publish final sector ACEs and common pool sub-ACL totals, based upon final rosters, as soon as possible after the start of FY 2014.
We calculate the sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock, as shown in Table 1. The
We do not assign an individual permit separate PSCs for the Eastern GB cod or Eastern GB haddock; instead, we assign a permit a PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and GB haddock allocations are then divided into an Eastern ACE and a Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL and 6 percent of the GB haddock ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod TAC and 6 percent of the commercial Eastern U.S./Canada Area GB haddock TAC as its Eastern GB cod and haddock ACEs. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. A sector may only harvest its Eastern GB cod and Eastern GB haddock ACEs in the Eastern U.S./Canada Area.
At the start of FY 2014, we will withhold 20 percent of each sector's FY 2014 allocation until we finalize FY 2013 catch information. Further, we will allow sectors to transfer ACE for the first 2 weeks of the FY to reduce or eliminate any overages. If necessary, we will reduce any sector's FY 2014 allocation to account for a remaining overage in FY 2013. We will notify the New England Fishery Management Council (Council) and sector managers of this deadline in writing and will announce this decision on our Web site at
We received 19 sector operations plans and contracts by the September 3, 2013, deadline. Seventeen sectors operated in FY 2013, and two additional sectors, Northeast Fishery Sector I and the GB Cod Hook Sector, that did not operate last year, have submitted plans for FY 2014. In order to approve a sector's operations plan for FY 2014, that sector must have been compliant with reporting requirements from all previous years, including the year-end reporting requirements found at § 648.87(vi)(C). Submitted operations plans, provided on our Web site as a single document for each sector, not only contain the rules under which each sector would fish, but also provide the legal contract that binds each member to the sector for the length of the sector's operations plan, which currently is a single FY. Each sector's operations plan, and sector members, must comply with the regulations governing sectors, found at § 648.87. In addition, each sector must conduct fishing activities as detailed in its approved operations plan.
Any permit holder with a limited access NE multispecies permit that was valid as of May 1, 2008, is eligible to participate in a sector, including an inactive permit currently held in confirmation of permit history. If a permit holder officially enrolls a permit in a sector and the FY begins, then that permit must remain in the sector for the entire FY, and cannot fish in the NE multispecies fishery outside of the sector (i.e., in the common pool) during the FY. Participating vessels are required to comply with all pertinent Federal fishing regulations, except as specifically exempted in the letter of authorization (LOA) issued by the Regional Administrator, which details any approved exemptions from regulations. If, during a FY, a sector requests an exemption that we have already approved, or proposes a change to administrative provisions, we may amend the sector operations plans. Should any amendments require modifications to LOAs, we would include these changes in updated LOAs and provide these to the appropriate sector members.
Each sector is required to ensure that it does not exceed its ACE during the FY. Sector vessels are required to retain all legal-sized allocated NE multispecies stocks, unless a sector is granted an exemption allowing its member vessels to discard legal-sized unmarketable fish at sea. Catch (defined as landings and discards) of all allocated NE multispecies stocks by a sector's vessels count against the sector's allocation. Catch from a sector trip (e.g., not fishing under provisions of a NE multispecies exempted fishery or with exempted gear) targeting dogfish, monkfish, skate, and lobster (with non-trap gear) would be deducted from the sector's ACE because these trips use gear capable of catching groundfish. Catch from a trip in an exempted fishery does not count against a sector's allocation because the catch is assigned to a separate ACL sub-component.
For FYs 2010 and 2011, there was no requirement for an industry-funded ASM program and NMFS was able to fund an ASM program with a target ASM coverage rate of 30 percent of all trips. In addition, we provided 8-percent observer coverage through the Northeast Fishery Observer Program (NEFOP), which helps to support the Standardized Bycatch Reporting Methodology (SBRM) and stock assessments. This resulted in an overall target coverage rate of 38 percent, between ASM and NEFOP, for FYs 2010 and 2011. For FY 2012, we conducted an analysis to determine the total coverage that would be necessary to achieve the same level of precision as attained by the 38-percent total coverage target used for FY's 2010 and 2011, and ultimately set a target coverage rate of 25 percent for FY 2012, which was 17 percent ASM, and 8 percent NEFOP. For FY 2013, we conducted the same analysis, and set a target coverage rate of 22 percent for FY 2013, which was 14 percent ASM, and 8 percent NEFOP. Since the beginning of FY 2012, industry was required to pay for ASM coverage, while we continued to fund NEFOP. However, we were able to fund both ASM and NEFOP in FY 2012 and 2013. As announced on February 21, 2014, NMFS will cover the ASM costs for groundfish sectors to meet the requirements under the NE Multispecies FMP in FY 2014, as well.
Amendment 16 regulations require NMFS to specify a level of ASM coverage that is sufficient to at least meet the same coefficient of variation (CV) specified in the SBRM and also to accurately monitor sector operations. FW 48 clarified what level of ASM coverage was expected to meet these goals. Regarding meeting the SBRM CV level, FW 48 determined that it should be made at the overall stock level, which is consistent with the level NMFS determined was necessary in FY 2013. FW 48 also amended the goals of the sector monitoring program to include achieving an accuracy level sufficient to minimize effects of potential monitoring bias.
Taking the provisions of FW 48 into account, and interpreting the ASM monitoring provision in the context of Magnuson-Stevens Act requirements and National Standards, we have determined that the appropriate level of ASM coverage should be set at the level that meets the CV requirement specified in the SBRM and minimizes the cost burden to sectors and NMFS to the extent practicable, while still providing a reliable estimate of overall catch by sectors needed for monitoring ACEs and ACLs. Based on this standard, NMFS has determined that the appropriate target coverage rate for FY 2014 is 26 percent. Using both NEFOP and ASM, we expect to cover 26 percent of all sector trips, with the exception of trips using a few specific exemptions, as described later in this rule. Discards derived from these observed and monitored trips will be used to calculate discards for unobserved sector trips. We have published a more detailed summary of the supporting information, explanation and justification for this decision at:
This summary, in addition to providing sectors and the public with a full and transparent explanation of the appropriate level of ASM coverage of sector operations, complies with a settlement agreement entered into by NMFS and Oceana, Inc. The settlement agreement resolved a lawsuit brought by Oceana challenging the approval of the 2012 sector operations plans primarily on grounds that the agency failed to adequately justify and explain that the ASM coverage rate specified for FY 2012 would accurately monitor the catch to effectively enforce catch limits in the groundfish fishery.
The draft operations plans submitted in September 2013 included industry-funded ASM plans for FY 2014. However, because NMFS will be funding and operating ASM for sectors in FY 2014, we are not proposing to approve these ASM plans and would remove them from the final sector operations plans.
Sectors are required to monitor their allocations and catch, and submit weekly catch reports to us. If a sector reaches an ACE threshold (specified in the operations plan), the sector must provide sector allocation usage reports on a daily basis. Once a sector's allocation for a particular stock is caught, that sector is required to cease all fishing operations in that stock area until it acquires more ACE, unless that sector has an approved plan to fish without ACE for that stock. ACE may be
Each sector contract provides procedures to enforce the sector operations plan, explains sector monitoring and reporting requirements, presents a schedule of penalties for sector plan violations, and provides sector managers with the authority to issue stop fishing orders to sector members who violate provisions of the operations plan and contract. A sector and sector members can be held jointly and severally liable for ACE overages, discarding legal-sized fish, and/or misreporting catch (landings or discards). Each sector operations plan submitted for FY 2014 states that the sector would withhold an initial reserve from the sector's ACE sub-allocation to each individual member to prevent the sector from exceeding its ACE. Each sector contract details the method for initial ACE sub-allocation to sector members. For FY 2014, each sector has proposed that each sector member could harvest an amount of fish equal to the amount each individual member's permit contributed to the sector.
Sectors requested 28 exemptions from the NE multispecies regulations through their FY 2014 operations plans. We evaluate each exemption to determine whether it allows for effective administration of and compliance with the operations plan and sector allocation, and that it is consistent with the goals and objectives of the FMP. Twenty of the 28 requests are grouped into several categories in this rule, as follows: Sixteen exemptions that were previously approved and are proposed for approval for FY 2014; one exemption previously approved for which we have concern; one exemption that was previously denied, but we are reconsidering based on a modified request for FY 2014; exemption requests related to accessing year-round groundfish mortality closures; and a new exemption request we propose to approve for FY 2014. The remaining eight exemption requests, each of which are proposed for denial, are grouped into two categories: Two requested exemptions that we propose to deny because they were previously rejected and no new information was provided; and six requested exemptions that we propose to deny because they are prohibited.
A discussion of all 28 exemption requests appears below; we request public comment on the proposed sector operations plans and our proposal to grant 20 requested exemptions and deny 8 requested exemptions, as well as the EA prepared for this action.
In FY 2013, we exempted sectors from the following requirements, all of which have been requested for FY 2014: (1) 120-day block out of the fishery required for Day gillnet vessels, (2) 20-day spawning block out of the fishery required for all vessels, (3) prohibition on a vessel hauling another vessel's gillnet gear, (4) limits on the number of gillnets that may be hauled on GB when fishing under a NE multispecies/monkfish DAS, (5) limits on the number of hooks that may be fished, (6) DAS Leasing Program length and horsepower restrictions, (7) prohibition on discarding, (8) daily catch reporting by sector managers for sector vessels participating in the Closed Area (CA) I Hook Gear Haddock Special Access Program (SAP), (9) powering vessel monitoring systems (VMS) while at the dock, (10) prohibition on fishing inside and outside of the CA I Hook Gear Haddock SAP while on the same trip, (11) prohibition on a vessel hauling another vessel's hook gear, (12) the requirement to declare intent to fish in the Eastern U.S./Canada SAP and the CA II Yellowtail Flounder/Haddock SAP prior to leaving the dock, (13) gear requirements in the Eastern U.S./Canada Management Area, (14) seasonal restrictions for the Eastern U.S./Canada Haddock SAP, (15) seasonal restrictions for the CA II Yellowtail Flounder/Haddock SAP, and (16) sampling exemption. A detailed description of the previously approved exemptions and rationale for their approval can be found in the applicable final rules identified in Table 4 below:
The FMP limits the number of gillnets a Day gillnet vessel may fish in the groundfish regulated mesh areas (RMA) to prevent an uncontrolled increase in the number of nets being fished, thus undermining applicable DAS effort controls. The limits are specific to the type of gillnet within each RMA: 100 gillnets (of which no more than 50 can be roundfish gillnets) in the GOM RMA (§ 648.80(a)(3)(iv)); 50 gillnets in the GB RMA (§ 648.80(a)(4)(iv)); and 75 gillnets in the Mid-Atlantic (MA) RMA (§ 648.80(b)(2)(iv)). We previously approved this exemption in FYs 2010, 2011, and 2012 to allow sector vessels to fish up to 150 nets (any combination of flatfish or roundfish nets) in any RMA to provide greater operational flexibility to sector vessels in deploying gillnet gear. Sectors argued that the gillnet limits were designed to control fishing effort and are no longer necessary because a sector's ACE limits overall fishing mortality.
Previous effort analysis of all sector vessels using gillnet gear indicated an increase in gear used in the RMA with no corresponding increase in catch efficiency, which could lead to an increase in interactions with protected species. While a sector's ACE is designed to limit a stock's fishing mortality, fishing effort may affect other species. This increased effort could ultimately lead to a rise in interactions with protected species.
For FY 2013, we received several comments in support of the continued approval of the exemption without any restrictions, noting negative financial impacts if the exemption were not approved and that efforts were made to
We received an exemption request in FY 2013 to allow sector vessels to fish in small-mesh exempted fisheries (e.g., whiting, squid) and in the large-mesh groundfish fishery on the same trip. A full description of the request and relevant regulations is in the FY 2013 Sector Proposed Rule (78 FR 16220, see page 16230, March 14, 2013). In the proposed rule, we raised several concerns about the exemption, including the ability to monitor these trips, the impacts that the exemption could have on juvenile fish, and the enforceability of using multiple mesh sizes on the same trip (i.e., participating in multiple directed fisheries on a single trip). We received comments in support and against the exemption request. Ultimately, it was disapproved in the FY 2013 Sector Interim Final Rule (78 FR 25591, May 2, 2013) for many of the concerns stated above.
For FY 2014, sectors have requested a similar exemption that would allow vessels to possess and use small-mesh and large-mesh trawl gear on a single trip, within portions of the SNE RMA. To address some of the concerns from FY 2013, sectors proposed that vessels using this exemption to fish with smaller mesh would fish in two discrete areas that have been shown to have minimal amounts of regulated species and ocean pout. The coordinates and maps for these two areas are show below:
Sector Small-Mesh Fishery Exemption Area 1 is bounded by the following coordinates connected in the order listed by straight lines, except where otherwise noted:
Sector Small-Mesh Fishery Exemption Area 2 is bound by the following coordinates connected in the order listed by straight lines:
Second, sectors proposed that one of the following trawl gear modifications would be required for use when using small mesh: Drop chain sweep with a minimum of 12 inches (30.48 cm) in length; a large mesh belly panel with a minimum of 32-inch (81.28-cm) mesh size; or an excluder grate secured forward of the codend with an outlet hole forward of the grate with bar spacing of no more than 1.97 inches (5.00 cm) wide. These gear modifications, when fished properly, have been shown to reduce the catch of legal and sub-legal groundfish stocks. Requiring these modifications is intended to also reduce the incentive for a sector vessel to target groundfish with small mesh.
Sectors have requested subjecting a vessel using this exemption to the same NEFOP and ASM coverage as standard groundfish trips (i.e., a total of 26 percent in FY 2014). The vessel would be required to declare their intent to use small mesh to target non-regulated species by submitting a Trip Start Hail through its VMS unit prior to departure; this would be used for monitoring and enforcement purposes. Trips declaring this exemption must stow their small-mesh gear and use their large-mesh gear first, and once finished with the large mesh, would have to submit a Multispecies Catch Report via VMS with all catch on board at that time. Once the Catch Report was sent, the vessel could then deploy small mesh with the required modifications in the specific areas (see map above), outside of the Nantucket Lightship CA, at which point, the large mesh could not be redeployed. Any legal-sized allocated groundfish stocks caught during these small-mesh hauls must be landed and the associated landed weight (dealer or vessel trip report (VTR)) would be deducted from the sector's ACE.
Vessels using this exemption would have their trips assessed using a new discard strata (i.e., area fished and gear type) and would be treated separately from sector trips that do not declare this exemption. After 1 year, an analysis would be conducted to determine whether large-mesh hauls on these trips should remain as a separate stratum or be part of an existing stratum. Vessels using this exemption would be required to retain all legal-sized groundfish when using small mesh, and all groundfish catch would be counted against a sector's ACE.
Recognizing that this year's modified request addressed some of our past concerns, we worked with the sectors to better understand the new request and their attempt to develop additional solutions to the issues we raised in the past. However, we remain concerned about the exemption, as proposed, regarding impacts on the resource, as well as monitoring and enforcing the exemption.
First, we are concerned about vessels potentially catching groundfish in these requested exemption areas with small-mesh nets. While the requested exemption areas do appear to have minimal amounts of groundfish, they are not completely void of these stocks. In fact, beginning in FY 2014, accountability measures (AMs) for the groundfish fishery will be implemented adjacent to the requested exemption areas to address high discards of windowpane flounder. This exemption provides an opportunity for vessels to target or incidentally catch allocated NE multispecies in these requested exemption areas while fishing with small-mesh nets.
We are also concerned about the possible increase in bycatch of juvenile fish. There is a change in selectivity from a 6.5-inch (16.5-cm) codend to a 2.5-inch (6.35-cm) codend, and a vessel using a small-mesh net may increase the catch of juvenile groundfish. The increased amount of bycatch may not affect an individual sector because the sector may have adequate ACE to cover the discards. However, because discards in the commercial groundfish fishery are calculated and monitored by weight, and not by number of fish, the smaller-mesh net could result in more fish by number that are discarded when fishing with the much smaller codend. An increased discard of juvenile fish may adversely affect groundfish stocks.
The three gear modifications proposed for this exemption could mitigate catch of regulated species when properly installed. All three modifications have been demonstrated to reduce the catch of regulated species, but none have been shown to completely eliminate it. While the modifications have the potential to harvest regulated species, such as cod, especially if the gears are not fished properly, the excluder grate modification may reduce catch of larger groundfish, but may still capture juveniles, even when fished properly.
Second, there are several concerns with monitoring this exemption. Small-mesh exempted fishery trips outside of this proposed exemption are only subject to the NEFOP monitoring requirements and do not receive ASM coverage. As a result, the vast majority of NEFOP observers and ASMs do not receive the training necessary for observing small-mesh fisheries. Because of this lack of training, we are concerned about accurately observing both the large-mesh and small-mesh portions of these proposed trips. Additionally, while this exemption is proposed to have a target coverage of 26 percent (NEFOP and ASM combined), this exemption would be treated separately from standard sector trips to accurately monitor species caught and discarded by area and gear type. As such, we are concerned about the effects of this exemption on the administration of our monitoring programs. For example, having to process data from these unique trips and distribute ASMs across more trips, could cause inefficiencies and affect our abilities to meet the target coverage of 26 percent that is required for overall sector monitoring. This specific concern is not unique to this exemption, and is raised again later in this rule for other exemptions.
Another monitoring concern is our ability to monitor fish caught in non-groundfish fisheries and whether the proposed changes in our accounting for this catch in these fisheries is required. Vessels fishing with small-mesh nets outside of the groundfish fishery, such as squid vessels, are required to discard all groundfish, legal and sub-legal. Because of this incidental groundfish catch in non-groundfish fisheries, a portion of the ACL of most groundfish stocks is reserved under the “other sub-component” category to account for the bycatch. This portion of the ACL is not an allocation in the other sub-component category, and there are currently no AMs for the non-groundfish fisheries in this sub-component category. Instead, if groundfish bycatch in the other sub-component category contributes to an overage of the groundfish ACL, the commercial groundfish fishery is held accountable for 100 percent of the overage. We monitor the amount of groundfish bycatch caught in non-groundfish fisheries through annual catch estimates, and the Council uses this information to determine if the amount of bycatch warrants allocating a sub-ACL and corresponding AMs to a specific non-groundfish fishery.
Allowing vessels using this exemption to discard legal-sized groundfish would significantly compromise both the ability to ensure that vessels are not retaining legal-sized groundfish from the small-mesh portion
Lastly, there are enforcement concerns about the landings and discards of groundfish while the vessel uses small mesh on a sector trip under this exemption. At present, vessels are primarily bound by one minimum mesh size throughout their trip to target a single fishery, e.g., vessels use a 6.5-inch (16.5-cm) mesh codend to target groundfish on a sector trip. In order to use multiple mesh sizes on a trip to target other fisheries, vessels must declare out of the groundfish fishery, and for example, use a 5.5-inch (13.97-cm) mesh codend to target fluke, or a 2.5-inch (6.35-cm) mesh codend to target squid. Under the proposed exemption, a vessel would participate in multiple targeted fisheries, using multiple mesh sizes on the same fishing trip, which creates additional complexity of being able to associate the catch on board the vessel with the correct mesh size that was used. After a vessel has retained groundfish on board caught using large mesh, the vessel could use small mesh to target groundfish prior to entering one of the exemption areas, which would be illegal and difficult to detect. Under a typical small-mesh trip, a vessel is not allowed to be in possession of any regulated species at any time.
If approved, we will closely monitor the catch from these exempted trips. If it is determined that this exemption is having a negative impact on groundfish stocks, we would retain the authority to revoke this exemption during the FY.
In FY 2013, we disapproved an exemption that would have allowed sector vessels restricted access to portions of CAs I and II, provided each trip carried an industry-funded ASM. For a detailed description of the exemption request and justifications for disapproval, see the final rule (78 FR 41772, December 16, 2013). When we proposed allowing sector access to these areas, we announced that we did not have funding to pay for monitoring the additional trips for exemptions requiring a 100-percent coverage level. Industry members indicated that it was too expensive to participate in the exemption, given the requirement to pay for a monitor on every trip. This, in combination with extensive comment opposing access to these areas to protect depleted stocks and our concern about the impacts on depleted stocks such as GB cod and GB yellowtail flounder, resulted in disapproval.
In FY 2014, we remain unable to fund monitoring costs for exemptions requiring a 100-percent coverage level. In addition, we have some concerns about funding and administering the shore-side portion of any monitoring program for an exemption that requires additional ASM, such as the exemption to access CAs I and II. For example, an increase in monitored trips would result in an increased need for data processing for those trips, which could cause delays that adversely affect our existing programs. Also, distributing ASMs across CA trips or other exemption's trips could affect our ability to meet the target coverage of 26 percent required for overall sector monitoring because an exemption requiring additional coverage places additional strain on the existing pool of ASM. If we are unable to fund the shore-side portion of an industry-funded ASM program, or if we determine that there are significant effects on data or ASM availability, approval of this exemption would be in jeopardy.
As discussed in the FY 2013 interim final rule allowing access to the Nantucket Lightship CA for sectors rule (78 FR 41772, December 16, 2013), we are interested in conducting research through an exempted fishing permit(s) (EFP) to gather catch data from CAs I and II. Results from any EFPs conducted in these areas could better inform the industry, the public, and NMFS, regarding the economic efficacy of accessing these CAs, while providing information specific to bycatch of depleted stocks.
The Greater Atlantic Regional Fisheries Office and the Northeast Fisheries Science Center (NEFSC) are currently working to develop ideas for a short-term EFP that would allow a small number of groundfish trips into CAs I and II. These trips would attempt to address the following questions: (1) Could enough fish be caught to adequately offset the industry's additional expense of having an ASM on board, and (2) could catch of groundfish stocks of concern be addressed?
Industry has claimed that requiring 100-percent industry-funded ASM coverage when fishing in a CA makes the exemption economically unfeasible. Because there have been no commercial groundfish trips in these areas for close to two decades, industry is hesitant to make these initial assessment trips at their expense. Allowing a small number of trips into CAs I and II through an EFP could provide enough catch data to help the fishing industry determine whether trips into the area with an industry-funded monitor could be profitable. These “test” trips would provide recent and reliable catch information from CAs I and II, including catch rates of both abundant and depleted stocks. This information could help industry determine whether the cost of an ASM could be offset by increased landings of a stock with relatively high abundance (e.g., GB haddock), while avoiding stocks that are limiting to them. Although there have been studies in the past that examine catch rates of selective trawl gear, these studies have not been conducted inside the CAs being proposed for access.
While we continue to consider ways to develop an EFP proposal that is focused on access into CAs I and II, industry is also free to develop an EFP proposal to address any number of questions associated with fishing in a CA as well. EFP requests would be expeditiously reviewed and authorized, when merited. Permits would not be approved if the exempted activities could undermine measures that were established to conserve and manage fisheries or reduce interactions with protected species. Contingent on the results of any EFPs associated with this exemption that we have available during FY 2014, assuming that we could fund and administer the shore-side portion of a monitoring program, and there is sufficient ASM available, we are proposing to allow sectors access to CAs I and II in precisely the same manner that was proposed for FY 2013 (see 78 FR 41772, July 11, 2013). Given the
The waters in a portion of CA I, defined by straight lines connecting the following points in the order stated here:
The waters in a portion of CA II, defined by straight lines connecting the following points in the order stated stated here:
The waters in the western portion of the Nantucket Lightship CA, defined by straight lines connecting the following points in the order stated here:
The waters in the eastern portion of the Nantucket Lightship CA, defined by straight lines connecting the following points in the order stated here:
If this proposed exemption is approved without any changes in response to any EFP results during FY 2014, the central portion of CA I would be opened seasonally to selective gear from the date the final rule approving this exemption is published, through December 31, 2014. Trawl vessels would be restricted to selective trawl gear, including the separator trawl, the Ruhle trawl, the mini-Ruhle trawl, rope trawl, and any other gear authorized by the Council in a management action.
Allowing vessels into the CA I Exemption Area would increase their opportunities to target healthy stocks of GB haddock. Although the Council specified in FW 48 that vessels could fish in the area until February 15, we are proposing to prohibit vessels from fishing in the CA I Exemption Area after December 31 due to impacts on GB cod spawning. Since the closure of this area in 1994, GB haddock has rebounded and is a healthy stock. On the other hand, GB cod and GB yellowtail flounder are overfished and subject to overfishing. This proposed action would allow fishing for GB haddock and other healthy stocks, while selective gear would help minimize catch of GB cod and GB yellowtail flounder.
Since this area was initially closed, an area within the proposed CA I Exemption Area has been open to allow a special access program for groundfish hook vessels fishing for haddock. In addition, a portion of CA I proposed to be reopened in this rule has been a part of the Scallop Access Area Rotational Management Program since 2004. As a result, the seabed in this area has been disturbed by scallop dredges and is therefore not a preserved habitat area. Furthermore, analyses for the Habitat Omnibus Amendment did not identify this area as vulnerable to trawl gear and this area is not identified for any proposed essential fish habitat (EFH) protections. There are minimal concerns regarding impacts to protected species in this area. While there were initial concerns about effort shifts from lobster gear in the area, an analysis of lobster effort in the area indicates that there is very little lobster effort in the proposed CA I Exemption Area. Because of this, it is not anticipated that lobster gear displaced from this area would result in increased interactions with protected species. More information on lobster effort in the proposed areas is available in the accompanying EA.
If this proposed exemption is approved without any changes in response to any EFP results during FY 2014, the central portion of CA II would be opened seasonally to selective gear from the date of the final rule approving this exemption is published, through December 31, 2014. The gear restrictions in CA II are the same as those proposed for CA I—selective trawl and hook gear only. Vessels fishing with selective trawl and hook gear would be permitted in this area when specified (see below). Vessels would be prohibited from fishing with gillnets and flounder nets in this exemption area. As noted above, GB haddock has fully recovered, is rebuilt, and is consistently under-harvested. Selective gear is proposed to minimize the catch of GB cod and yellowtail flounder, both of which are considered overfished and subject to overfishing.
The offshore lobster industry and sector trawl vessels proposed a rotational gear-use agreement for the CA II Exemption Area and the FY 2013 proposed sector rule included this proposed agreement (a copy of the agreement is included as an appendix in the EA). The restrictions proposed in the rotational gear use agreement have been adopted by the Atlantic States Marine Fisheries Commission, which modified the Interstate Fisheries Management Plan for American Lobster through Addendum XX to the lobster plan. This FY 2014 proposed rule incorporates most portions of that agreement; a more detailed explanation is below.
The proposed seasons and gear requirements incorporate the rotational gear-use agreement and mitigate fishing effort on yellowtail flounder and spawning cod:
• May 1-June 15: Only sector trawl vessels could access the area; lobster and hook gear vessels prohibited.
• June 16-October 31: Sector trawl vessels would be prohibited, lobster and sector hook gear vessels only.
• November 1-December 31: Only sector trawl vessels could access the area; lobster and hook gear vessels prohibited.
• January 1-April 30: Lobster vessels permitted; sector groundfish vessels would be prohibited in CA II during this time.
The gears and seasons listed above match the agreement between the offshore lobster industry and sector trawl vessels, including the groundfish prohibition of fishing in CA II after December 31. A January 1 through April 30 closure reflects the need to avoid impacts on spawning stocks of GB cod. Because approval of this exemption would only be considered after the outcome of an EFP, any action approving access to the CA II Exemption Area would likely occur part-way through FY 2014, rendering some of the agreement moot.
The agreement between the offshore lobster industry and sector vessels reduces concerns of gear conflicts in the area. Analyses for the EA indicate that only a small portion of the annual lobster catch from this portion of CA II is harvested during November. No trips were reported in the proposed area during December 2011 or 2012. As a result, the displacement of lobster effort into other areas is expected to be minimal. Because of this, it is not anticipated that lobster gear displaced from this area would result in increased interactions with protected species in other locations.
Similar to CA I, allowing vessels into this area would increase their opportunities to target healthy stocks of GB haddock, and selective gear would be required to reduce bycatch of overfished stocks. Although the Council specified in FW 48 that vessels could fish in the CA II Exemption Area until February 15, we are proposing to prohibit vessels from this area after December 31 due to impacts on GB cod spawning. While this area has been closed year-round to groundfish fishing since 1994, the majority of the seabed in this area is sand and is impacted by strong currents. As a result, this area is not considered to be vulnerable to trawl gear. Some areas are shallow enough that the bottom is affected by wave action; therefore, bottom trawling in this area would likely have minimal impact on benthic habitats. Furthermore, analyses for the Habitat Omnibus Amendment have not identified this area for any proposed EFH protections. There are minimal concerns regarding impacts to protected species in this area.
Should access to CAs I and/or II be approved after analysis of the results of an EFP, NMFS intends to maintain the 100-percent industry-funded monitoring requirement for these trips. The intent of the EFP would be to provide industry with enough information to determine whether it would be economically viable to go into these areas with an industry-funded monitor. While a short-term EFP would provide us with some data on catch rates and the use of selective gear, the short duration of the EFP would not provide us with different seasonal information to warrant less than 100-percent ASM coverage. As we stated in the FY 2013 sector final rule, monitoring every trip would allow us to respond more quickly, should there be an unanticipated impact in these areas, such as increased harvests of juveniles, large adult spawners, or impacts on
In FY 2013, we approved an exemption that allowed sector vessels access to the Eastern and Western Exemption Areas within the Nantucket Lightship CA for the duration of FY 2013. For a detailed description of the exemption request and justifications for approving it, see the final rule (78 FR 41772, December 16, 2013). In summary, trawl vessels were restricted to using selective trawl gear, flounder nets were prohibited, hook vessels were permitted, and gillnet vessels were restricted to fishing 10-inch (25.4-cm) or larger diamond mesh. Gillnet vessels were required to use pingers when fishing in the Western Exemption Area from December 1—May 31 because this area lies within the existing SNE Management Area of the Harbor Porpoise Take Reduction Plan. Unlike the CA I and II proposal, we specified that at-sea observer coverage would come from the combined NEFOP and ASM target coverage level of 22 percent in FY 2013 for the Nantucket Lightship CA after further review and in response to public comments. Consistent with that requirement, we now propose that this exemption be continued for FY 2014, with observed trips included in the overall target sector coverage level of 26 percent for NEFOP and ASM combined.
For FY 2014, we are proposing access to the Eastern and Western Exemption Areas within the Nantucket Lightship CA, with a slight modification from what was approved in FY 2013. To address comments from trawl fishermen that the FY 2013 gear restrictions prevented them from fishing in this area as intended, we reviewed our decision and found that a “source population” of SNE/MA yellowtail flounder that we previously expressed concern about is found primarily in the Eastern Area of the Nantucket Lightship CA. The data suggest that yellowtail flounder are not concentrated nearly as much in the Western Exemption Area. Based on this, we are proposing to allow all legal trawl gear to be fished in the Western Exemption Area, while still maintaining the selective trawl gear requirements and prohibition on flounder nets in the Eastern Exemption Area.
If approved, this measure would allow sector vessels to access the eastern and western portions of the Nantucket Lightship CA. The central area is EFH and is not proposed to be re-opened. Trawl vessels would be restricted to the use of selective trawl gear in the Eastern Exemption Area, including the separator trawl, the Ruhle trawl, the mini-Ruhle trawl, rope trawl, and any other gear authorized by the Council in a management action. Flounder nets would be prohibited. However, in the Western Exemption Area, all legal trawl gear would be permitted. In both areas, gillnet vessels would be restricted to fishing 10-inch (25.4-cm) diamond mesh or larger. This would allow gillnet vessels to target monkfish and skates while reducing catch of flatfish. Because the western area lies within the SNE Management Area of the Harbor Porpoise Take Reduction Plan, gillnet vessels would be required to use pingers when fishing in the Nantucket Lightship CA—Western Exemption Area between December 1 and May 31.
Opening the eastern and western portions of the Nantucket Lightship CA to trawl gear is not expected to have any significant adverse habitat impacts. While this area has been closed year-round to groundfish fishing since 1994, the eastern portion proposed to be reopened in this rule has been a part of the Scallop Access Area Rotational Management Program since 2004—so it has been subject to fishing by mobile bottom-tending gear. The western portion is referred to as the “mudhole” with a benthic habitat not vulnerable to bottom trawling. Therefore, bottom impacts from opening this area are anticipated to be minimal. Furthermore, analyses for the Habitat Omnibus Amendment have not identified this area for any proposed EFH protections. There are minimal concerns regarding impacts to protected species in this area.
Minimum mesh size restrictions (§ 648.80(a)(3)(i), (a)(4)(i), (b)(2)(i), and (c)(2)(i)) were implemented under previous groundfish actions to reduce overall mortality on groundfish stocks, change the selection pattern of the fishery to target larger fish, improve survival of sublegal fish, and allow sublegal fish more opportunity to spawn before entering the fishery. Beginning in FY 2012, sectors were allowed to use a 6-inch (15.2-cm) mesh codend to target redfish in the Gulf of Maine. Subsequently, based on catch information from ongoing redfish research showing areas with large amounts of redfish, at the end of FY 2012 and into FY 2013 sectors were allowed to use a 4.5-inch (11.4-cm) mesh codend to target redfish. To date, the exemption has required 100-percent monitoring with either an ASM or observer onboard every trip, primarily because of concerns over a greater retention of sub-legal groundfish, as well as non-allocated species and bycatch. Once sectors were allowed the use of a 4.5-inch (11.4-cm) mesh codend under the redfish exemption, all trips were monitored for target and bytcatch thresholds to ensure compliance with the intent of the exemption, which is to target redfish. Additionally, the thresholds were monitored at the sub-trip level, whereby hauls using mesh 4.5 inches (11.4 cm) and greater were monitored separately from hauls not using the exemption (i.e., hauls using mesh 6.5 inches (16.5 cm) and greater). While this provided additional flexibility to switch codends during the trip and, therefore, allowed vessels to switch between using and not using the exemption on a given trip, it added an additional layer of monitoring for these trips. Having monitors on every redfish exemption trip has allowed NMFS to observe changes in catch rates of target and non-target species when using different codend mesh sizes, helping to ensure that we can monitor the use of the exemption (i.e., accurately monitor catch thresholds), when requested to do so, on a haul-by-haul level.
As of the end of FY 2012, 14 trips had used the exemption allowing a 4.5-inch (11.4-cm) mesh codend, and all trips were monitored by either a federally funded NEFOP observer or ASM. While most trips were effectively able to target redfish and minimize groundfish discards, not all trips were able to meet the target and bycatch thresholds. In preparation for the FY 2013 rule, we raised numerous concerns about the impacts of implementing additional monitoring requirements and using federally funded monitoring for the exemption. We found that allowing trips that are randomly selected for federally funded NEFOP or ASM coverage provided an incentive to take an exemption trip when selected for coverage, thereby reducing the number of observers/monitors available to cover standard sector trips (i.e., trips not utilizing this exemption). If fewer observers/monitors deploy on standard sector trips, then the exemption undermines both the ability to meet required coverage levels and the reliability of discard rates calculated for unobserved standard sector trips. Therefore, beginning in FY 2013, we required sectors using this exemption to pay for 100 percent of the at-sea cost for a monitor on all redfish exemption trips. To date, sectors have not submitted an ASM proposal to monitor trips using this exemption in FY 2013 and, therefore, no trips have used the exemption in FY 2013.
For FY 2014, we are proposing an exemption that would allow vessels to use a 6-inch (15.2-cm) or larger mesh codend to target redfish when fishing in the Redfish Exemption Area (see below). The vessels participating in the redfish fishery would be subject to the same NEFOP and ASM target coverage as standard groundfish trips (i.e., less than 100 percent of trips would be monitored). NMFS believes that the standard target coverage is appropriate for FY 2014 for the following reasons. First, there are fewer concerns regarding the retention of sub-legal groundfish and non-allocated species when using a 6-inch (15.2-cm) or larger mesh codend, versus when the exemption allowed the use of 4.5-inch (11.4-cm) or larger codend. Second, at the request of the sectors, we would monitor the exemption for an entire trip, rather than for part of a trip. That is, regardless of how many 6-inch (15.2-cm) or 6.5-inch (16.5-cm) mesh codend hauls are made on a given trip, it would not change the applicability of any restrictions associated with the exemption (e.g., thresholds). This approach would allow vessels to retain the flexibility to switch codends during a redfish trip and allow us to monitor the thresholds at the trip level versus the haul level. Because a 6-inch (15.2-cm) mesh and a 6.5-inch (16.5-cm) mesh codend net fall under the same “large” mesh category for both stock assessments and the SBRM, there is less concern for monitoring the differences in selectivity and bycatch patterns compared to trips that had previously been allowed the use of a 4.5-inch (11.4-cm) mesh codend net, which falls under a different category for stock assessments and the SBRM. For all trips, VTRs would be used to identify whether or not the 6-inch (15.2-cm) mesh codend net was actually used on the trip. Lastly, both observed and unobserved redfish trips would be considered a separate strata from non-redfish trips. There are expected behavioral and catch rate differences given the thresholds that apply to the exemption, and because of the requirement to use the exemption in a defined area.
Under this exemption, a vessel would be required to declare its intent to use 6-inch (15.2-cm) mesh codend nets to target redfish by submitting a Trip Start Hail through its VMS unit prior to departure. The hail would be used for monitoring and enforcement purposes. A vessel may fish using a 6-inch codend (15.2-cm), or greater, on a standard trawl within the GOM and GB BSAs, exclusively in the Redfish Exemption Area defined below. However, consistend with current requirements, each time the vessel switches codend mesh size or statistical area, it must fill out a new VTR. For all trips (by sector, by month) declaring this exemption, NMFS would continue to monitor landings for the entire trip to determine if 80 percent of the total groundfish catch is redfish; and for observed trips only, determine if total groundfish discards, including redfish, is less than 5 percent of total catch. The NMFS Greater Atlantic Regional Administrator (RA) reserves the right to rescind the approval of this exemption for the sector in question if a sector does not meet these thresholds. The thresholds are based upon Component 2 of the REDNET report (Kanwitt 2012) and observer data for trips conducted in FY 2012. REDNET is a group that includes the Maine Department of Marine Resources, the Massachusetts Division of Marine Fisheries, and the University of Massachusetts School for Marine Science and Technology joined with other members of the scientific community and the industry to develop a research plan to develop a sustainable, directed, redfish trawl fishery in the GOM.
Vessels that have declared into this exemption may also fish in the GB BSA under the universal exemption that allows the use of a 6-inch (15.2-cm) mesh codend nets in the GB BSA while using selective trawl gear (e.g., haddock separator trawl, Ruhle trawl). These would be areas on GB, south of the Redfish Exemption Area. Vessels that declare the redfish exemption may also use codends with a 6.5-inch (16.5-cm) mesh codend, or larger, in any open area on the same trip. This is similar to the flexibility given to vessels using a 6-inch (15.2-cm) mesh codend in the GB BSA while using selective trawl gear, and then fishing in another BSA with a 6.5-inch (16.5-cm) mesh codend using a standard trawl. Allowing vessels to fish both inside and outside the Redfish Exemption Area on the same trip provides flexibility to target other allocated stocks after successfully targeting redfish; however, all catch from each trip declaring this exemption would be considered in evaluating compliance with the thresholds. Because this exemption is designed for vessels to target redfish in the defined area, but allows the flexibility of using multiple mesh sizes and/or trawl types in multiple areas, all on the same trip, the NOAA Office of Law Enforcement (OLE) has expressed some concern about enforcing the exemption. Therefore, we are specifically seeking comment on this exemtpion, given the enforcement concerns.
The Redfish Exemption Area is bounded on the east by the U.S.-Canada Maritime Boundary, and bounded on the north, west, and south by the following coordinates, connected in the order listed by straight lines:
The proposed FY 2014 Redfish Exemption Area would have slight modifications from previous years. In the west, the boundary has shifted from 69°55′ W. long. to 70°00′ W. long. This change incorporates the request to fish in some areas of deeper water that were previously not accessible on a redfish trip. Vessels would continue to be excluded from the Western GOM CA. In the south, the boundary of 42°00′ N. lat. would extend all the way to the Hague Line, which also adds some areas with deeper water that was previously not accessible on a redfish trip. Vessels would still be required to comply with the seasonal restrictions of accessing the northern portions of CA II through the Eastern U.S./Canada Haddock SAP. Lastly, a northern boundary would be added to mimic the 44460 Loran line, which was a historic reference for vessels wishing to fish in waters greater than 50 fathoms (91.4 m). The new northern boundary is being added to address concerns from the NEFSC that juvenile groundfish are primarily found in shallower water (<50 fathoms (91.4 m)) in the northern GOM. Prohibiting the use of small mesh in these shallower area would afford protection for these juvenile fish.
We specifically request comment on reducing the monitoring on these trips to the same level as standard sector trips (i.e., less than 100 percent of trips), and the degree to which industry would be able to take advantage of this exemption. We also request comment on revoking this exemption during the FY, if necessary to mitigate impacts. Lastly, we request comment on the enforceability of vessels using this exemption when also fishing outside of the redfish area on the same trip.
If the small-mesh redfish exemption is approved, we intend to monitor the exemption very carefully. For example, should it be determined that vessels are not using the exemption when assigned an observer or ASM, and only using it when unobserved, we would have concerns about monitoring the exemption. Additionally, if vessels were switching between 6-inch (15.2-cm) and 6.5-inch (16.5-cm) mesh codends, and not sending the appropriate information on their VTR(s), we would have concerns. Given these concerns, we remind sectors that the RA retains authority to rescind approval of this exemption, if it is needed.
We propose to deny the following two exemption requests because they were previously rejected as proposed, and the requesting sectors provided no new information that would change our previous decision: (21) GOM Sink Gillnet Mesh Exemption in May, and January through April; and (22) 6.5-inch (16.51-cm) minimum mesh size requirement for trawl nets to target redfish in the GOM with codend mesh size as small as 4.5-inch (11.4-cm) with 100 percent NMFS-funded observers or ASMs. We did not analyze these exemptions in the FY 2014 sector EA because no new information was available to change the analyses previously published in past EAs.
The GOM Sink Gillnet Mesh Exemption was proposed for FY 2013,
We received an exemption request for redfish trips using a 4.5-inch (11.4-cm) mesh size for FY 2013 and, at the time, raised concern about providing NMFS-funded observers or ASMs for this exemption in both the proposed rule (78 FR 16220, March 14, 2013) and the final rule (78 FR 25591, May 2, 2013). In summary, we found that allowing trips that are randomly selected for federally-funded NEFOP or ASM coverage provided an incentive to take an exemption trip when selected for coverage, thereby reducing the number of observers/monitors available to cover standard sector trips (i.e., trips not utilizing this exemption). Given these concerns, we approved the exemption for FY 2013, but required industry-funded monitoring for at-sea costs on 100 percent of the trips using the exemption. We have required 100 percent industry-funded monitoring due to concerns over a greater retention of sub-legal groundfish, non-allocated species bycatch, and because of the additional requirements of monitoring the exemption at the sub-trip level.
The redfish request to use a 4.5-inch (11.4-cm) mesh codend nets for FY 2014 with a NMFS-funded observer or ASM onboard, rather than with an industry-funded monitor, is identical to the request for FY 2013. We continue to have similar concerns about this requested exemption as we did last year, primarily because the request requires a NMFS-funded observer or ASM. Because of the reasons described above for not approving access to this exemption when using a federally funded NEFOP or ASM, we are proposing to deny this exemption request.
A second redfish exemption request, described above (exemption #20), is proposed for approval.
We propose denying the following six exemption requests and do not analyze them in the EA because they are prohibited or not authorized by the NE multispecies regulations. These include exemptions from: (23) pre-trip notification system (PTNS) requirements, (24) ASM and observer requirements for vessels using the electronic monitoring (EM) program, (25) prohibition on permit splitting, and (26) ASM requirements for handgear vessels. In addition, sector have requested that we: (27) Exclude 10-inch (25.4-cm) mesh or greater gillnets from the list of “gear capable of catching groundfish/multispecies”, and (28) exempt 10-inch (25.4-cm) mesh or greater gillnets from all groundfish regulations.
PTNS is not a regulatory requirement; rather, it is a means for selecting and distributing observer and ASM coverage in the fishery. PTNS is required for all sector trips as part of the NMFS monitoring program until a sector has an approved ASM program that includes a system for distributing monitoring. Sectors are prohibited from requesting exemptions from permitting restrictions (i.e., including permit splitting) and gear restrictions designed to minimize habitat impacts. Because sectors are also prohibited from requesting exemptions from reporting requirements (including ASM requirements), we will not consider requests for exemptions from ASM. Moreover, we have not approved EM as an acceptable monitoring tool for the NE multispecies fishery at this time, so it cannot replace observers or ASM. NMFS and the Council are currently in the final phase of studying the applicability of EM.
Amendment 16 authorized NMFS to grant sectors exemptions from specified multispecies management measures. Exemption requests #27 and #28, are an attempt to exclude certain trips from all groundfish management measures, except ACLs. The sector requesting the exemption submitted catch data to support the exemption request. However, the data submitted were only from trips using gillnets with 10-inch (25.4-cm) mesh or greater, that had low groundfish catch, rather than all trips using the gear, regardless of the amount of groundfish caught. While groundfish catch by this gear may be minimal during certain times of the year, in certain areas, or by certain vessels, the catch data submitted are not representative of all trips that use extra-large mesh gillnets. In fact, there are data showing that some vessels use extra-large mesh gillnets to target groundfish in the GOM and GB in some cases have caught significant amounts of groundfish as bycatch when targeting other fisheries. It would be more appropriate to consider specific areas and times where 10-inch (25.4-cm) mesh or greater gillnets could be used with minimal groundfish catch independent of the sector exemption request process; specifically, through an exempted fishery request for targeting non-groundfish species (i.e., monkfish, skates).
NMFS may only grant sectors exemptions from certain groundfish regulations, and such exemptions apply only to groundfish trips made by sector vessels. An exemption from the definition of gear capable of catching groundfish is not possible because it would effectively define the trip in question as a non-groundfish trip, which would make the trip ineligible for sector exemptions. Further, we believe Amendment 16 prohibits NMFS from granting either an exemption from the definition of gear capable of catching groundfish, or from all groundfish regulations, because it would be a
Several sectors (with the exception of NEFS 4) have proposed a provision to limit and more accurately document a vessel's behavior when fishing in what they consider the inshore portion of the GOM BSA, or the area to the west of 70° 15′ W. long. A vessel that is carrying an observer or ASM would remain free to fish without restriction. As proposed under the Inshore GOM Restriction provision, if a vessel is not carrying an observer or ASM and fishes any part of its trip in the GOM west of 70° 15′ W. long, the vessel would be prohibited from fishing outside of the GOM BSA. Also, if a vessel is not carrying an observer or ASM and fishes any part of its trip outside the GOM BSA, this provision would prohibit a vessel from fishing west of 70° 15′ W. long. in the GOM BSA. The sector's proposal includes a requirement for a vessel to declare whether or not it intends to fish in the inshore GOM area through the trip start hail. We are providing sector managers with the ability to monitor this provision through the Sector Information Management Module (SIMM), a Web site where we currently provide roster, trip, discard, and observer information to sector managers. If approved, final declaration requirements would be outlined in the final rule and included in each vessel's LOA. We propose to allow a sector to use a federally funded NEFOP observer or ASM on these trips because we do not believe it will create bias in coverage or discard estimates, as fishing behavior is not expected to change as a result of this provision.
The NCCS requested an exemption to allow a vessel to haul another vessel's fish trap gear, similar to the current exemptions that allow a vessel to haul another vessels gillnet gear, or hook gear. These exemptions have generally been referred to as “community” gear exemptions. Unlike hook and gillnet gear, the NE multispecies FMP does not prohibit a vessel from hauling another vessel's trap gear, therefore, we cannot grant an exemption. Because of this, it is more appropriate to consider community fish trap gear as a “provision” of the sector operations plan, rather than a requested exemption.
Regulations at § 648.84(a) require a vessel to mark all bottom-tending fixed gear, which would include fish trap gear used to target groundfish. To facilitate enforcement of that regulation, we propose requiring that any community fish trap gear be tagged by each vessel that plans on hauling the gear. This would allow one vessel to deploy the trap gear and another vessel to haul the trap gear, provided both vessels tag the gear prior to deployment. This requirement could be captured in the sector's operations plan to provide the opportunity for the sector to monitor the use of this provision and ensure that the OLE and the U.S. Coast Guard can enforce the provision.
Prior to the publication of this proposed rule, we announced that we would pay for ASM on sector trips during FY 2014, in addition to trips assigned a NEFOP observer. Therefore, the sector's ASM proposals for FY 2014 are no longer applicable, and will be removed from the sector's final operations plans.
In order to comply with NEPA, one EA was prepared encompassing all 19 operations plans. The sector EA is tiered from the Environmental Impact Statement (EIS) prepared for Amendment 16. The EA examines the biological, economic, and social impacts unique to each sector's proposed operations, including requested exemptions, and provides a cumulative effects analysis (CEA) that addresses the combined impact of the direct and indirect effects of approving all proposed sector operations plans. The summary findings of the EA conclude that each sector would produce similar effects that have non-significant impacts. Visit
The Administrative Procedure Act (5 U.S.C. 553) requires advance notice of rulemaking and opportunity for public comment. The Council required additional time to determine stock allocations for some stocks for FY 2014, which delayed our ability to present this to the public. We are therefore providing a 15-day comment period for this rule. A longer comment period would be impracticable and contrary to the public interest since we must publish a final rule prior to the start of FY 2014 on May 1, 2014, to enable sectors to fish at the start of the FY. A vessel enrolled in a sector may not fish in FY 2014 unless its operations plan is approved. If the final rule is not published prior to May 1, the permits enrolled in sectors must either stop fishing until their operations plan is approved or elect to fish in the common pool for the entirety of FY 2014. Both of these options would have very negative impacts for the permits enrolled in the sectors. Delaying the implementation beyond May 1, 2014, would result in an unnecessary economic loss to the sector members because vessels would be prevented from fishing in a month when sector vessels landed approximately 10 percent of several allocations, including GB cod east and GB winter flounder. Finally, without a seamless transition between FY 2013 and 2014, a delay would require sector vessels to remove gear that complies with an exemption, and redeploy the gear once the final rule is effective. Talking these additional trips would require additional fuel and staffing when catch may not be landed.
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
This proposed action is exempt from the procedures of Executive Order 12866 because this action contains no implementing regulations.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.
As outlined in the preamble to this proposed rule, the purpose of this action is the implementation of FY 2014 sector operations plans and associated regulatory exemptions. In an effort to rebuild the NE multispecies complex, other actions have reduced the allocations of several stocks managed by the NE Multispecies FMP. This action is needed to provide flexible fisheries management that alleviates potential social and economic hardships resulting from those reductions. This action seeks to fulfill the purpose and need while meeting the biological objectives of the NE Multispecies FMP, as well as the goals and objectives set forth by the Council in the NE Multispecies FMP.
The regulated entities most likely to be affected by the proposed action are the 130 groundfish-dependent ownership entities that own permits currently enrolled in sectors, all of which are considered small under the SBA's definition of a small business.
Under the proposed rule, sector operations plans for FY 2014 would be approved, allowing sector participants to use the universal sector exemptions granted under Amendment 16 to the NE Multispecies FMP. In addition to the universal sector exemptions granted under the approval of individual sector operations plans, sector participants have requested relaxation of 28 other gear, area, administrative, and seasonal restrictions. This rule proposes to grant 20 of these exemptions. Because all of the regulated entities are considered small businesses per the SBA guidelines, the impacts of participating in sectors and using the universal exemptions and additional exemptions requested by individual sectors are not considered to be disproportional.
All of the requested sector-specific exemptions in this proposed rule are expected to have a positive economic impact on participants, as they further increase the flexibility of fishermen to land their allocation at their discretion. By choosing when and how to land their allocations sector participants have the potential to reduce marginal costs, increase revenues, and ultimately increase profitability. Again, it is expected that fishermen will only use sector-specific exemptions that they believe will maximize utility, and that long-term stock impacts from the collective exemptions will be minimal and will be outweighed by benefits from operational flexibility.
This rule would not impose significant negative economic impacts. No small entities would be placed at a competitive disadvantage to large entities, and the regulations would not reduce the profit for any small entities.
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), OIRA
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.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget for a new information collection: National Organic Program (NOP); Organic Certification Cost-Share Programs.
Comments on this notice must be received by May 16, 2014 to be assured of consideration.
Interested parties are invited to submit written comments concerning this notice. Comments should be submitted online at
Melissa Bailey, Ph.D., Director, Standards Division, Telephone: (202) 720-3252; Fax: (202) 205-7808.
Each program provides cost-share assistance, through participating state agencies, to organic producers and, in the case of NOCCSP, to organic handlers. Recipients must receive initial certification or continuation of certification to the USDA organic regulations (7 CFR part 205) from a USDA-accredited certifying agent. Reimbursement is currently available at 75 percent of an operation's certification costs, up to a maximum of $750 per year. The information collected from these respondents is needed to ensure that program recipients are eligible for funding and comply with applicable program regulations. Data collected is the minimum information necessary to effectively carry out the requirements of each program.
In accordance with Office of Management and Budget (OMB) regulations (5 CFR part 1320) that implement the Paperwork Reduction Act (44 U.S.C. 3501-3520) (PRA), the information collection requirements associated with the NOP have been previously approved by OMB and assigned OMB control number 0581-0191. A new information collection package is being submitted to OMB for approval of 13,120 hours in total burden hours to cover this new collection for the two organic certification cost-share programs. Upon OMB's approval of this new information collection, the NOP intends to merge this collection into currently approved OMB Control Number 0581-0191. In accordance with 5 CFR part 1320, we have included below a description of the collection and recordkeeping requirements and an estimate of the annual burden on entities who would be required to provide information through these cost-share programs. Upon OMB's approval of this new information collection, the NOP intends to merge this collection into currently approved OMB Control Number 0581-0191.
State agencies who wish to participate in one or, if applicable, both of these organic certification cost-share programs must submit the following:
(a) SF-424, “Application for Federal Assistance,” (approved under OMB collection number 4040-0004) is required to apply for federal assistance.
(b) USDA/AMS-33 Face Page (Agreement Face Sheet). The Agreement Face Sheet sets forth the agreed upon responsibilities of AMS project work. It also indicates the agreed upon grant funding dollar amounts and the beginning date and ending date of the project work and the grant agreement. One copy of this Agreement Face Sheet is required to be returned to AMS with the date and grantee's signature(s).
(c) SF-270, “Request for Advance or Reimbursement,” (approved under OMB collection number 0348-0004) is required whenever the grantees request an advance or reimbursement of Federal grant funds. AMS expects that at least 112 SF-270 forms (two per state agency) will be submitted per year.
(d) SF-425, “Federal Financial Report,” (approved under OMB collection number 0348-0061) is required semi-annually to report grantee expenditures.
(e) Narrative Report is required annually and describes program activities undertaken by the State agency and/or any sub-recipients throughout the funding period.
(f) Spreadsheet of Operations Reimbursed is required semi-annually and lists the producers receiving cost-share payments within the reporting time period.
Finally, in accordance with 7 CFR 3016.42, state departments of agriculture must retain all records relating to these organic cost-share programs for a period of three years after the final Federal Financial Report has been submitted to the Federal Agency, or until final resolution of any audit finding or litigation, whichever is later. Electronic records retention is acceptable. This is a part of normal business practice.
(g) Producers and/or handlers who wish to participate in these organic certification cost-share programs must submit the following to a given state agency once per year: An application, proof of USDA organic certification, an itemized invoice showing expenses paid to a third-party certifying agent for certification services, and a W-9 tax form. Based on past program participation (7,245 participants in NOCCSP and 2,348 participants in AMA last fiscal year), we believe between 10,000 and 12,000 producers or handlers will participate in these programs.
These programs will not be maintained by any other agency, therefore, the requested information will not be available from any other existing records.
AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA) (44 U.S.C. 3540 note), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The SF-424 can be completed electronically and is required to be submitted electronically through
The SF-425 and SF-270 forms can be filled out electronically and submitted electronically. The USDA/AMS-33 Face Page requires an original signature and must be submitted by mail. Producers typically will mail their application and associated documentation to the state agencies, though some agencies have streamlined paperwork submission through databases of producers and handlers in a given state.
Comments are invited on: (1) Whether the proposed collection of 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 the burden of the proposed collection of information 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 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. Comments may be sent to Melissa Bailey, Ph.D., Director, Standards Division, National Organic Program, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Ave SW., Room 2648-S Ag Stop 0268, Washington, DC 20250; (202) 720-3252 and FAX (202) 205-7808. All comments received will be available for public inspection during regular business hours at the same address.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
7 U.S.C. 6501-6522
Forest Service, USDA.
Notice of meetings.
The El Dorado County Resource Advisory Committee (RAC) will meet in Placerville, California. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meetings are open to the public. The purpose of the meeting is to review operational procedures, evaluate project proposals, prioritize a list of projects for funding in FY 2014, and vote to recommend projects for funding.
The meetings will be held at 6 p.m. on the following dates:
• March 31, 2014
• April 14, 2014
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at at the El Dorado Center of Folsom Lake College, Community Room, 6699 Campus Drive, Placerville, California.
Written comments may be submitted as described under
Kristi Schroeder, RAC Coordinator, by phone at 530-295-5610 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or proceedings by contacting the person listed above.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
Forest Service, USDA.
Notice of meeting.
The Delta-Bienville Resource Advisory Committee (RAC) will meet in Forest, Mississippi. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to present proposed projects for discussion and approval.
The meeting will be held on May 5, 2014 at 6:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Bienville Ranger District, 3473 Hwy 35 South, Forest, Mississippi. Interested parties may also attend via teleconference by calling: 888-844-9904, access code: 8389256; or via Video Teleconference at the Delta Ranger District, 68 Frontage Road, Rolling Fork, Mississippi.
Written comments may be submitted as described under
Nefisia Kittrell, RAC Coordinator, by phone at 601-469-3811; or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or procedings by contacting the person listed above.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
Forest Service, USDA.
Notice of meeting.
The Yavapai Resource Advisory Committee (RAC) will meet in Prescott, Arizona. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (Pub. L. 110-343) (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with the title II of the Act. The meeting is open to the public. The purpose of the meeting is to review and recommend projects.
The meeting will be held May 13, 2014 at 1:00 p.m.
All RAC meetings are subject to cancellation. For status of meeting prior to attendance, please contact the person listed under
The meeting will be held at the Prescott Fire Center, 2400 Melville Drive, Prescott, Arizona.
Written comments may be submitted as described under
Debbie Maneely, RAC Coordiantor, by phone at 928-443-8130 or via email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday. Please make requests in advance for sign language interpreting, assistive listening devices or other reasonable accommodation for access to the facility or procedings by contacting the person listed above.
Additional RAC information, including the meeting agenda and the meeting summary/minutes can be found at the following Web site:
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to seek reinstatement of an information collection, the Census of Horticultural Specialties.
Comments on this notice must be received by May 16, 2014 to be assured of consideration.
You may submit comments, identified by docket number 0535-0236, 2014 Census of Horticultural Specialties, by any of the following methods:
• Email:
• Fax: (202) 720-6396.
• Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
• Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS Clearance Officer, at (202) 690-2388.
The 2014 Census of Horticultural Specialties will use as a sampling universe; every respondent on the 2012 Census of Agriculture who reported production and sales of $10,000 or more of horticultural specialty crops, and is still in business in 2014. In addition, NASS also plans to contact all new operations that have begun producing horticultural specialty products since the completion of the 2012 Census of Agriculture. Data collection will begin around January 1, 2015 for production and sales data for 2014. A final report will be published around December 2015. Data will be published at both the U.S. and State levels where possible.
The census of horticulture is required by law under the “Census of Agriculture Act of 1997,” Public Law 105-113, 7 U.S.C. 2204(g) as amended. These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501,
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”
The primary objectives of the National Agricultural Statistics Service are to prepare and issue State and national estimates of crop production, livestock production, economic statistics, and environmental statistics related to agriculture and to conduct the Census of Agriculture and it's follow on surveys.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Certified Organic Survey. Revision to burden hours will be needed due to changes in the size of the target population, sampling design, and/or questionnaire length.
Comments on this notice must be received by May 16, 2014 to be assured of consideration.
You may submit comments, identified by docket number 0535-0249, by any of the following methods:
• Email:
• Fax: (202) 720-6396.
• Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
• Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS Clearance Officer, at (202) 690-2388.
The census-based survey will include all known farm operators who produce organically certified crops and/or livestock. The survey will be conducted in all States. Some operational level data will be collected to use in classifying each operation for summary purposes. The majority of the questions will involve production data (acres planted, acres harvested, quantity harvested, quantity sold, value of sale, etc.), production expenses, and marketing practices.
Approximately 14,000 operations will be contacted by mail in early January, with a second mailing later in the month to non-respondents. Telephone and personal enumeration will be used for remaining non-response follow up. The National Agricultural Statistics Service will publish summaries in October at both the State level and for each major organic commodity when possible. Some State level data may need to be published on regional or national level due to confidentiality rules.
Under the 2014 Farm Bill (Section 11023) some of the duties of the Federal Crop Insurance Corporation (FCIC) are defined as “(i) IN GENERAL— As soon as possible, but not later than the 2015 reinsurance year, the Corporation shall offer producers of organic crops price elections for all organic crops produced in compliance with standards issued by the Department of Agriculture under the national organic program established under the Organic Foods Production Act of 1990 (7 U.S.C. 6501
These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501,
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),”
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
National Agricultural Statistics Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the intention of the National Agricultural Statistics Service (NASS) to request the renewal, with changes, to a currently approved information collection, the Conservation Effects Assessment Project (CEAP) Survey. Revision to burden hours will be needed due to changes in the size of the target, sampling design, and/or questionnaire length.
Comments on this notice must be received by May 16, 2014 to be assured of consideration.
You may submit comments, identified by docket number 0535-0245, Conservation Effects Assessment Project (CEAP) Survey, by any of the following methods:
• Email:
• Fax: (202) 720-6396.
• Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
• Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.
Joseph T. Reilly, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS Clearance Officer, at (202) 690-2388.
USDA needs updated scientifically credible data on residue and tillage management, nutrient management, and conservation practices in order to quantify and assess current impacts of farming practices and to document changes. A pilot survey focused in the Chesapeake Bay Watershed was conducted for the 2011 crop year. In 2012 the target area was the Western Lake Erie Basin and the Des Moines River Watershed. In 2013 the target area was the Sacramento River, San Joaquin and Tulare Lake basin watersheds. This group of surveys is referred to as the “
The data that is collected by the CEAP surveys, provide conservation tillage estimates and is used to model impacts of conservation practices on the larger environment. The summarized results of the survey are available in a web-based format to agricultural producers and professionals, government officials, and the general public.
NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),” 72 FR 33362-01, Jun. 15, 2007.
All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.
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 emergency provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
NTIS requires emergency clearance under the Paperwork Reduction Act in time to be able to implement the certification program on March 26, 2014.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent by March 24, 2014 to
On November 12, 2013, the Louisville and Jefferson County Riverport Authority, grantee of FTZ 29, submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board on behalf of Hitachi Automotive Systems Americas, Inc., operator of Subzone 29F, in Harrodsburg, Kentucky.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the West Cameron Port Commission to establish a foreign-trade zone within Cameron Parish, Louisiana, adjacent to the Lake Charles CBP port of entry, under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR Sec. 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new “subzones” or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone project. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on March 12, 2014. The applicant is authorized to make the proposal under Louisiana Revised Statues, Title 51, Sections 61-62.
The proposed zone would be the second zone for the Lake Charles Customs and Border Protection (CBP) port of entry. The existing zone is FTZ 87, Lake Charles (Grantee: Lake Charles Harbor & Terminal District, Board Order 217, July 22, 1983).
The applicant's proposed service area under the ASF would be Wards 3, 4, 5 and 6 of Cameron Parish. If approved, the applicant would be able to serve sites throughout the service area based on companies' needs for FTZ designation. The proposed service area is adjacent to the Lake Charles CBP port of entry.
The proposed zone would include one initial “usage-driven” site: Proposed Site 1 (1,049 acres)—at the Cheniere Sabine Pass LNG Terminal, 9243 Gulf Beach Highway, Cameron.
The application indicates a need for zone services in Cameron Parish, Louisiana. Several firms have indicated an interest in using zone procedures for warehousing/distribution activities for a variety of products. Specific production approvals are not being sought at this time. Such requests would be made to the FTZ Board on a case-by-case basis.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is May 16, 2014. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to June 2, 2014.
A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on uncovered innerspring units from the People's Republic of China (“PRC”). The period of review is February 1, 2012, through January 31, 2013. The review covers the following exporters of subject merchandise: Goldon Bedding Manufacturing (M) Sdn Bhd (“Goldon”)
Steven Hampton, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-0116.
As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1, through October 16, 2013.
The merchandise subject to the order is uncovered innerspring units composed of a series of individual metal springs joined together in sizes corresponding to the sizes of adult mattresses (
The Department conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (“the Act”). In making these findings, we relied on facts available and, because Goldon and Ta Cheng did not act to the best of their ability to respond to the Department's requests for information, we drew an adverse inference in selecting from among the facts otherwise available.
For a full description of the methodology underlying our conclusions, please see the Preliminary Decision Memorandum. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). IA ACCESS is available to registered users at
As a result of this review, we preliminarily determine that a dumping margin of 234.51 percent exists for Goldon and Ta Cheng for the period February 1, 2012, through January 31, 2013.
Pursuant to 19 CFR 351.309(c), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the date for filing case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via IA ACCESS. An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after the date of publication of this notice.
Upon issuance of the final results, the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries covered by this review.
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from the PRC entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by sections 751(a)(2)(C) of the Act: (1) For Goldon and Ta Cheng, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213.
Topic discussed in the preliminary decision memorandum:
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (“the Department”) is rescinding the administrative review of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”) for the period of review June 1, 2012, through May 31, 2013.
Howard Smith or Jonathan Hill, AD/CVD Operations, Office IV, Enforcement & Compliance, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-5193 or (202) 482-3518, respectively.
On August 1, 2013, based on a timely request for review by Globe Metallurgical Inc. (“Globe Metal”), the Department published in the
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review if the party that requested the review withdraws its request within 90 days of the publication of the notice of initiation of the requested review. As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1, through October 16, 2013.
The Department will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries. Because the Department is rescinding this administrative review in its entirety, the entries to which this administrative review pertained shall be assessed antidumping duties at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c). The Department intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a final reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials 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 sanction.
This notice is issued and published in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
The Department of Commerce (Department) completed its administrative review of the countervailing duty (CVD) order on certain kitchen appliance shelving and racks from the People's Republic of China (PRC) for the period January 1, 2011, through December 31, 2011. The final net subsidy rate for New King Shan
Jennifer Meek or Josh Morris, Office of AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-2778 and (202) 482-1779, respectively.
Following the
As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1, through October 16, 2013.
The scope of the order covers shelving and racks for refrigerators, freezers, combined refrigerator-freezers, other refrigerating or freezing equipment, cooking stoves, ranges, and ovens. The merchandise subject to the order is currently classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) numbers 8418.99.80.50, 7321.90.50.00, 7321.90.60.40, 7321.90.60.90, 8418.99.80.60, 8419.90.95.20, 8516.90.80.00, and 8516.90.80.10. Although the HTSUS subheadings are provided for convenience and customs purposes, the written product description remains dispositive.
A full description of the scope of the order is contained in the memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Paul Piquado, Assistant Secretary for Enforcement and Compliance, “Decision Memorandum for Final Results for the Countervailing Duty Administrative Review: Kitchen Appliance Shelving and Racks from the People's Republic of China,” dated concurrently with this notice (Issues and Decision Memorandum), and which is hereby adopted by this notice.
All issues raised in the parties' briefs are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). IA ACCESS is available to registered users at
The Department conducted this review in accordance with section 751(a)(1)(A) of the Tariff Act of 1930, as amended (Act). A full description of the methodology underlying all of the Department's conclusions, including our decision to apply facts otherwise available with an adverse inference, is presented in the Issues and Decision Memorandum.
In accordance with 19 CFR 351.221(b)(5), we calculated the subsidy rate shown below for the mandatory respondent, NKS:
The Department intends to issue appropriate assessment instructions directly to U.S. Customs and Border Protection (CBP) 15 days after publication of these final results of review, to liquidate shipments of subject merchandise by NKS entered, or withdrawn from warehouse, for consumption on or after January 1, 2011, through December 31, 2011, at the
The Department also intends to instruct CBP to collect cash deposits of estimated countervailing duties in the amount shown above on shipments of subject merchandise by NKS entered, or withdrawn from warehouse, for consumption on or after the date of publication of the final results of this review. For all non-reviewed companies, we will instruct CBP to continue to collect cash deposits of estimated countervailing duties at the most recent company-specific or all-others rate applicable to the company. Accordingly, the cash deposit rates that will be applied to companies covered by this order, but not examined in this review, are those established in the most recently completed segment of the proceeding for each company. These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a reminder to parties subject to administrative protective order (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 return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meetings.
The New England Fishery Management Council's (Council) Herring Advisory Panel and Oversight Committee will meet to consider actions affecting New England fisheries in the exclusive economic zone (EEZ).
These meetings will be held on Wednesday, April 2, 2014 at 9:30 a.m. and Thursday, April 3, 2014 at 9:30 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Herring Advisory Panel will meet to review information, alternatives, and analysis in Framework Adjustment 4 to the Atlantic Herring Fishery Management Plan (FMP); Framework 4 includes alternatives to address two disapproved elements of Amendment 5—dealer weighing/reporting provisions and management measures to address net slippage; develop recommendations for the Herring Committee and Council to consider when selecting final measures for Framework 4 and address other business, as necessary.
The Herring Oversight Committee will meet to review information, alternatives, and analysis in Framework Adjustment 4 to the Atlantic Herring FMP. They will also review and discuss Herring Advisory Panel recommendations related to Framework 4; develop recommendations for the Council to consider when selecting final measures for Framework 4 and address other business, as necessary.
Although non-emergency issues not contained in this agenda may come before these groups for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of scoping meetings.
The Caribbean Fishery Management Council (Council) is transitioning from species specific fishery management to island-specific fisheries management for the exclusive economic zones of Puerto Rico, St. Thomas/St. John and St. Croix separately. This transition is in response to the numerous requests received by the Council to consider the differences among the islands in the U.S. Caribbean. These differences include preference for certain species of fish, ways in which fish species are harvested and other cultural and socio economic factors such as market availability of importance in managing fisheries. The scoping document includes actions and alternatives for each island to make changes to the existing fishery management units by including or excluding species, establish or modify management reference points to determine the status of the stocks, and identify and describe essential fish habitat for any new species considered for federal management. These actions and alternatives are presented for each island specific fishery management plan in the scoping document that is available at the Council's Web page:
Action 1. Identify fishery management units (FMUs) to be included in the Puerto Rico Fishery Management Plan (FMP).
Alternative 1. No action. The Puerto Rico FMP is composed of all species within the FMUs historically managed under the Spiny Lobster FMP, Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP.
Alternative 2. Include in the Puerto Rico FMP species with available landings information from the Southeast Fisheries Science Center. In addition, prohibited harvest species in the current Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 3. Include in the Puerto Rico FMP only those species with annual average landings equal to or greater than a certain number of pounds (X pounds) yet to be determined. In addition, prohibited harvest species in the current Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 4. Include species in the Puerto Rico FMP that meet a predetermined set of criteria established in consultation with the Southeast Fisheries Science Center and the Caribbean Council Scientific and Statistical Committee.
Action 2. Establish management reference points for FMUs in the Puerto Rico Fishery Management Plan (FMP).
Alternative 1. No action. Retain the existing management reference points or proxies for FMUs currently managed by the Council.
Alternative 2. Revise existing management reference points or proxies for FMUs managed by the Council.
Alternative 3. Establish management reference points or proxies for new species in the Puerto Rico FMP.
Action 3. Identify/describe essential fish habitat (EFH) for new species in the Puerto Rico FMP.
Alternative 1. No Action. Do not identify essential fish habitat for new species added to the Puerto Rico FMP.
Alternative 2. Describe and identify EFH according to functional relationships between life history stages of federally managed species and U.S. Caribbean marine and estuarine habitats.
Alternative 3. Designate habitat areas of particular concern in the Puerto Rico FMPs based on confirmed spawning locations and on areas or sites identified as having particular ecological importance to managed species.
Action 1. Identify fishery management units (FMUs) to be included in the St. Thomas/St. John Fishery Management Plan (FMP).
Alternative 1. No action. The St. Thomas/St. John FMP is composed of all species within the FMUs historically managed under the Spiny Lobster FMP, Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP.
Alternative 2. Include in the St. Thomas/St. John FMP species with available landings information from the Southeast Fisheries Science Center. In addition, prohibited harvest species in the current Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 3. Include in the St. Thomas/St. John FMP only those species with annual average landings equal to or greater than a certain number of pounds (X pounds) yet to be determined. In addition, prohibited harvest species in the current Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 4. Include species in the St. Thomas/St. John FMP that meet a predetermined set of criteria established in consultation with the Southeast Fisheries Science Center and the Caribbean Council Scientific and Statistical Committee.
Action 2. Establish management reference points for FMUs in the St. Thomas/St. John Fishery Management Plan (FMP).
Alternative 1. No action. Retain the existing management reference points or proxies for FMUs currently managed by the Council.
Alternative 2. Revise existing management reference points or proxies for FMUs managed by the Council.
Alternative 3. Establish management reference points or proxies for new species added to the St. Thomas/St. John FMP.
Action 3. Identify/describe essential fish habitat (EFH) for new species in the St. Thomas/St. John FMP.
Alternative 1. No Action. Do not identify essential fish habitat for new species added to the St. Thomas/St. John FMP.
Alternative 2. Describe and identify EFH according to functional relationships between life history stages of federally managed species and U.S. Caribbean marine and estuarine habitats.
Alternative 3. Designate habitat areas of particular concern in the St. Thomas/St. John FMPs based on confirmed spawning locations and on areas or sites identified as having particular ecological importance to managed species.
Action 1. Identify fishery management units (FMUs) to be included in the St. Croix Fishery Management Plan (FMP).
Alternative 1. No action. The St. Croix FMP is composed of all species within the FMUs historically managed under the Spiny Lobster FMP, Reef Fish FMP, Queen Conch FMP, and the Corals and Reef Associated Plants and Invertebrates FMP.
Alternative 2. Include in the St. Croix FMP species with available landings information from the Southeast Fisheries Science Center. In addition, prohibited harvest species in the Reef Fish FMP, and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 3. Include in the St. Croix FMP only those species with annual average landings equal to or greater than a certain number of pounds (X pounds) yet to be determined. In addition, prohibited harvest species in the current Reef Fish FMP and the Corals and Reef Associated Plants and Invertebrates FMP will be included.
Alternative 4. Include species in the St. Croix FMP that meet a predetermined set of criteria established in consultation with the Southeast Fisheries Science Center and the Caribbean Council Scientific and Statistical Committee
Action 2. Establish management reference points for FMUs in the St. Croix Fishery Management Plan (FMP).
Alternative 1. No action. Retain the existing management reference points or proxies for FMUs currently managed by the Council.
Alternative 2. Revise existing management reference points or proxies for FMUs managed by the Council.
Alternative 3. Establish management reference points or proxies for new species added to the St. Croix FMP.
Action 3. Identify/describe essential fish habitat (EFH) for new species in the St. Croix FMP.
Alternative 1. No Action. Do not identify essential fish habitat for new species added to the St. Croix FMP.
Alternative 2. Describe and identify EFH according to functional relationships between life history stages of federally managed species and U.S. Caribbean marine and estuarine habitats.
Alternative 3. Designate habitat areas of particular concern in the St. Croix FMPs based on confirmed spawning locations and on areas or sites identified as having particular ecological importance to managed species.
April 7, 2014—7 p.m.-10 p.m.—Parador and Restaurant El Buen Café, #381, Rd. #2, Hatillo, Puerto Rico.
April 8, 2014—7 p.m.-10 p.m.—Mayaguez Holiday Inn, 2701 Hostos Avenue, Mayagüez, Puerto Rico.
April 9, 2014—7 p.m.-10 p.m.—Asociación de Pescadores de Playa Húcares, Carr. #3, Km. 65.9, Naguabo, Puerto Rico.
April 10, 2014—7 p.m.-10 p.m.—DoubleTree Hilton Hotel, De Diego Avenue, San Juan, Puerto Rico.
April 14, 2014—7 p.m.-10 p.m.—Holiday Inn Ponce & Tropical Casino, 3315 Ponce By Pass, Ponce, Puerto Rico.
April 7, 2014—7 p.m.-10 p.m.—Windward Passage Hotel, Veterans Drive, Charlotte Amalie, St. Thomas, U.S. Virgin Islands.
April 8, 2014—7 p.m.-10 p.m.—The Buccaneer Hotel, Estate Shoys, Christiansted, St. Croix, U.S. Virgin Islands.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918-1903, telephone: (787) 766-5926.
The Caribbean Fishery Management Council will hold scoping meetings to receive public input on the management options mentioned above. The complete document is available at:
Written comments can be sent to the Council not later than April 15th, 2014, by regular mail to the address below, or via email to
These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918-1903, telephone (787) 766-5926, at least 5 days prior to the meeting date.
Consumer Product Safety Commission.
Notice.
As required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Consumer Product Safety Commission (CPSC or Commission) announces that the CPSC has submitted to the Office of Management and Budget (OMB) a request for extension of approval of a collection of information associated with the CPSC's Standard for the Flammability of Mattresses and Mattress Pads, 16 CFR Part 1632, and the Standard for the Flammability (Open Flame) of Mattress Sets, 16 CFR Part 1633, under OMB Control No. 3041-0014. In the
Written comments on this request for extension of approval of information collection requirements should be submitted by April 16, 2014.
Submit comments about this request by email:
For further information contact: Robert H. Squibb, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814; (301) 504-7815, or by email to:
CPSC seeks to renew the following currently approved collection of information:
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by April 16, 2014.
Fred Licari, 571-372-0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Health Agency (DHA), Defense Health Clinical Systems, Data Sharing Program Office, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by May 16, 2014.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Health Information Management System (DHIMS), ATTN: Alvaro Rodriguez, 5109 Leesburg Pike, Skyline 6, Suite 508, Falls Church, VA 22041, or call DHIMS, at 703-882-3867.
The Health Artifact and Image Management Solution (HAIMS) will provide the departments of Defense and Veterans Affairs health care providers with global visibility and access to artifacts (documents) and images generated during the health care delivery process. HAIMS, a Wounded Warrior strategic project, will provide a single enterprise-wide data sharing capability for all types of artifacts and images (also known as A&I), including radiographs, clinical photographs, electrocardiographs, waveforms, audio files, video and scanned documents.
HAIMS will provide an enterprise solution utilizing a Service Oriented Architecture (SOA) based application
HAIMS interfaces with external repositories to register and access patient A&I. Patient demographic information from the Clinical Data Repository (CDR) is used to associate A&I with the patient. Another method of collecting data is through bulk scanning of patient artifacts into HAIMS. The user will first select the patient for which the artifact is associated with, and then enters in relevant metadata of the artifacts.
The information in HAIMS is sensitive; therefore, it contains built-in safeguards to limit access and visibility of this information. HAIMS uses role-based security so a user sees only the information for which permission has been granted. It uses encryption security for transactions. It is DIACAP certified having been subjected to and passed thorough security testing and evaluation by independent parties. It meets safeguards specified by the Privacy Act of 1974 in that it maintains a published Department of Defense (DoD) Privacy Impact Assessment and System of Record covering Active Duty Military, Reserve, National Guard, and government civilian employees, to include non-appropriated fund employees and foreign nationals, DoD contractors, and volunteers. HAIMS servers are hosted at Military Treatment Facilities (MTFs) and physically secured by the Services and within the MHS enclave, Enterprise Infrastructure maintains information security.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by April 16, 2014.
Fred Licari, 571-372-0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Defense Security Cooperation Agency, Department of Defense.
Notice.
The Department of Defense is publishing the unclassified text of a section 36(b)(1) arms sales notification. This is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996.
Ms. B. English, DSCA/DBO/CFM, (703) 601-3740.
The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 13-76 with attached transmittal, and policy justification.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
* As defined in Section 47(6) of the Arms Export
The Government of Pakistan has requested a possible sale of C-130B/E avionics upgrades, engine management and mechanical upgrades, cargo delivery system installation, and replacement of outer wing sets on six aircraft. Also included are spare and repair parts, support equipment, publications and technical documentation, personnel training and training equipment, U.S. Government and contractor technical and logistics support services, and other related elements of logistics support. The estimated cost is $100 million.
This proposed sale will contribute to the foreign policy and national security of the United States by helping to improve the security of a Major Non-NATO ally which has been, and continues to be, an important force for regional stability and U.S. national security goals in the region.
The proposed sale will facilitate the continued operation of the Pakistan's Air Force C-130 fleet (five C-130B and eleven C-130E models) for counter-insurgency/counter-terrorism flights; regional humanitarian operations; troop transport; and Intelligence, Surveillance, and Reconnaissance (ISR) missions within Pakistan and in the region. The fleet is facing airworthiness and obsolescence issues, and will require upgrades and repairs for continued operation and effectiveness. The proposed modernization of the C-130 fleet should ensure continued viability for an additional 10-15 years.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractor is unknown at this time and will be determined through a competitive bid process. There are no known offset agreements in connection with this potential sale.
Implementation of this proposed sale will not require the assignment of any additional U.S. Government or contractor representatives to Pakistan.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
Department of Defense (DoD).
Notice of meeting.
The Department of Defense is publishing this notice to announce the following Federal Advisory Committee meeting of the Independent Review Panel on Military Medical Construction Standards (“the Panel”). This meeting is open to the public.
7:30 a.m.-8:30 a.m. (Administrative Working Meeting)
8:30 a.m.-12:00 p.m. (Open Session)
12:00 p.m.-1:00 p.m. (Administrative Working Meeting)
1:00 p.m.-4:30 p.m. (Open Session)
8:15 a.m.-4:45 p.m. (Administrative Working Meeting)
8:15 a.m.-11:00 a.m. (Administrative Working Meeting)
Hyatt House Hotel, 8295 Glass Alley, Fairfax, VA 22031.
The Director is Ms. Christine Bader, 7700 Arlington Boulevard, Suite 5101, Falls Church, Virginia 22042,
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
At this meeting, the Panel will address the Ike Skelton National Defense Authorization Act (NDAA) for Fiscal Year 2011 (Pub. L. 111-383), Section 2852(b) requirement to provide the Secretary of Defense independent advice and recommendations regarding a construction standard for military medical centers to provide a single standard of care, as set forth in this notice:
a. Reviewing the unified military medical construction standards to determine the standards consistency with industry practices and benchmarks for world class medical construction;
b. Reviewing ongoing construction programs within the DoD to ensure medical construction standards are uniformly applied across applicable military centers;
c. Assessing the DoD approach to planning and programming facility improvements with specific emphasis on facility selection criteria and proportional assessment system; and facility programming responsibilities between the Assistant Secretary of Defense for Health Affairs and the Secretaries of the Military Departments;
d. Assessing whether the Comprehensive Master Plan for the National Capital Region Medical (“the Master Plan”), dated April 2010, is adequate to fulfill statutory requirements, as required by section 2714 of the Military Construction Authorization Act for Fiscal Year 2010 (division B of Pub. L. 111-84; 123 Stat. 2656), to ensure that the facilities and organizational structure described in the Master Plan result in world class military medical centers in the National Capital Region; and
e. Making recommendations regarding any adjustments of the Master Plan that are needed to ensure the provision of world class military medical centers and delivery system in the National Capital Region.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject to availability of space, the Panel meeting is open to the public from 8:30 a.m. to 12:00 p.m. and 1:00 p.m. to 4:30 p.m. on April 2, 2014. On April 2, 2014, the Panel will receive briefings from the Department to include an overview of the unified military construction standards and ongoing construction programs and the Military Health System Dashboard. Additionally, the Panel will have discussions with Senior Leadership.
A copy of the agenda or any updates to the agenda for the April 2, 2014 meeting, as well as any other materials presented in the meeting, may be obtained at the meeting.
Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102-3.140 through 102-3.165 and subject to availability of space, this meeting is
Individuals requiring special accommodations to access the public meeting should contact Ms. Kendal Brown at least five (5) business days prior to the meeting so that appropriate arrangements can be made.
Any member of the public wishing to provide comments to the Panel may do so in accordance with 41 CFR 102-3.105(j) and 102-3.140 and section 10(a)(3) of the Federal Advisory Committee Act, and the procedures described in this notice.
Individuals desiring to provide comments to the Panel may do so by submitting a written statement to the Director (see
If the written statement is not received at least five (5) business days prior to the meeting, the Director may choose to postpone consideration of the statement until the next open meeting.
The Director will review all timely submissions with the Panel Chairperson and ensure they are provided to members of the Panel before the meeting that is subject to this notice. After reviewing the written comments, the President and the Director may choose to invite the submitter to orally present their issue during an open portion of this meeting or at a future meeting. The Director, in consultation with the Panel Chairperson, may allot time for members of the public to present their issues for review and discussion by the Panel.
Office of the Secretary of Defense, DoD.
Notice to alter a system of records.
The Office of the Secretary of Defense proposes to alter a system of records, DWHS E01 DoD, entitled “DoD Federal Docket Management System (DoD FDMS)”, in its inventory of record systems subject to the Privacy Act of 1974, as amended. This system will permit the Department of Defense to identify individuals who have submitted comments in response to DoD rule making documents or notices so that communications or other actions, as appropriate and necessary, can be effected, such as a need to seek clarification of the comment, a direct response is warranted, and for such other needs as may be associated with the rule making or notice process.
Comments will be accepted on or before April 16, 2014. This proposed action will be effective the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
• Federal Rulemaking Portal:
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, 2nd Floor, Suite 02G09, Alexandria, VA 22350-3100.
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on March 10, 2014, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
DoD Federal Docket Management System (DoDFDMS) (November 25, 2011, 76 FR 72689).
Delete entry and replace with “DoD Federal Docket Management System (DoD FDMS).”
Delete entry and replace with “Primary. U.S. Environmental Protection Agency, Research Triangle Park, Durham, NC 27711-0001.
Washington Headquarters Services, Executive Services Directorate, Information Management Division, 4800 Mark Center Drive, Alexandria, VA 22350-3100.
Washington Headquarters Services, Executive Services Directorate, Directive Division, 4800 Mark Center Drive, Alexandria, VA 22350-3100.
Defense Acquisition Regulation Systems, 241 18th Street, Suite 200A, Arlington, VA 22202-3409.
United States Army Corps of Engineers, 441 G Street, Northwest, 3G81, Washington, DC 20314-1000.
Records also may be located in a designated office of the DoD Component that is the proponent of the rule making or notice. The official mailing address
Delete entry and replace with “5 U.S.C. 553, Rule making; 10 U.S.C. 113, Secretary of Defense; 44 U.S.C. Chapter 3501, The Paperwork Reduction Act; and OSD Administrative Instruction 102, Office of the Secretary of Defense (OSD) Federal Register (FR) System.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 552a(b)(3) as follows:
The DoD Blanket Routine Uses set forth at the beginning of the OSD's compilation of systems of records notices may apply to this system.”
Delete entry and replace with “Federal Docket Management System Office, Washington Headquarters Services, Executive Services Directorate, Information Management Division, 4800 Mark Center Drive, Alexandria, VA 22350-3100.”
Delete entry and replace with “Individuals seeking to determine whether this system of records contains information about themselves should address written inquiries to the Federal Docket Management System Office, Washington Headquarters Services, Executive Services Directorate, Information Management Division, 4800 Mark Center Drive, Alexandria, VA 22350-3100.
Requests should contain full name, address, and telephone number.
FDMS permits an individual, as well as a member of the public, to search the public comments received by the name of the individual submitting the comment. Unless the individual submits the comment anonymously, a name search will result in the comment being displayed for view. If the comment is submitted electronically using the FDMS system, the viewed comment will not include the name of the submitter or any other identifying information about the individual except that which the submitter has opted to include as part of his or her general comments. However, a comment submitted in writing that has been scanned and uploaded into the FDMS system will display the submitter's identifying information that has been included as part of the written correspondence.”
Delete entry and replace with “Individuals seeking access to records about themselves contained in this system of records should address a written request to the Office of the Secretary of Defense/Joint Staff Freedom of Information Act Requester Service Center, 1150 Defense Pentagon, Washington, DC 20301-1150.
Signed, written requests should contain full name, address, and telephone number.
As appropriate, requests may be referred to the DoD Component responsible for the rule making or notice for processing.
FDMS permits a member of the public to download any of the public comments received. If an individual has voluntarily furnished his or her name when submitting the comment, the individual, as well as the public, can view and download the comment by searching on the name of the individual. If the comment is submitted electronically using the FDMS system, the viewed comment will not include the name of the submitter or any other identifying information about the individual except that which the submitter has opted to include as part of his or her general comments. However, a comment submitted in writing that has been scanned and uploaded into the FDMS system will display the submitter's identifying information that has been included as part of the written correspondence.”
Delete entry and replace with “Individual.”
Delete entry and replace with “None.”
Department of the Army, DoD.
Notice of open subcommittee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Command and General Staff College Board of Visitors, a subcommittee of the Army Education Advisory Committee. This meeting is open to the public.
The CGSC Board of Visitors Subcommittee will meet from 8:30 a.m. to 4:30 p.m. on both April 28 and 29, 2014 and from 8:30 a.m. to 12:00 p.m. on April 30, 2014.
U. S. Army Command and General Staff College, Lewis and Clark Center, 100 Stimson Ave., Arnold Conference Room, Ft. Leavenworth, KS 66027.
Dr. Robert Baumann, the Alternate Designated Federal Officer for the subcommittee, in writing at Command and General Staff College, 100 Stimson Ave., Ft. Leavenworth, KS 66027, by email at
The subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
Department of the Navy, DoD.
Notice.
The Department of the Navy hereby gives notice of its intent to grant to EnZinc, Inc. a revocable, nonassignable, exclusive technology evaluation license to practice in the field of use of zinc-air batteries and nickel-zinc (Ni-Zn) batteries in the United States, the Government-owned inventions described in U.S. Patent Application No. 13/245,792: Dual-Function Air Cathode Nanoarchitectures for Metal-Air Batteries with Pulse-Power Capability, Navy Case No. 100,774 and U.S. Patent Application No. 13/832,576: Zinc Electrodes for Batteries, Navy Case No. 102,137 and any continuations, divisionals or re-issues thereof.
Anyone wishing to object to the grant of this license must file written objections along with supporting evidence, if any, not later than April 1, 2014.
Written objections are to be filed with the Naval Research Laboratory, Code 1004, 4555 Overlook Avenue SW., Washington, DC 20375-5320.
Rita Manak, Head, Technology Transfer Office, NRL Code 1004, 4555 Overlook Avenue SW., Washington, DC 20375-5320, telephone 202-767-3083. Due to U.S. Postal delays, please fax 202-404-7920, email:
35 U.S.C. 207, 37 CFR part 404.
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before May 16, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact David Jones, 202-245-7356.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before April 16, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Elizabeth Akinola, 202-245-7303.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before April 16, 2014.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For specific questions related to collection activities, please contact Rachael Couch, 202-502-7655.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Postsecondary Education, Department of Education.
Notice.
Notice inviting applications for new awards for fiscal year (FY) 2014.
This priority is:
Applicants must: (1) Demonstrate they possess the most substantial capability to increase their capacity to train realtime writers; (2) demonstrate the most promising collaboration with
An eligible entity receiving a grant must use the grant funds for purposes relating to the recruitment, training and assistance, and job placement of individuals, including individuals who have completed a court reporting training program, as realtime writers, including: (1) Recruitment; (2) the provision of scholarships (subject to the requirements in section 872(c)(2) of the HEA); (3) distance learning; (4) further developing and implementing both English and Spanish curricula to more effectively train individuals in realtime writing skills, and education in the knowledge necessary for the delivery of high quality closed captioning services; (5) mentoring students to ensure successful completion of the realtime training and providing assistance in job placement; (6) encouraging individuals with disabilities to pursue a career in realtime writing; and (7) the employment and payment of personnel for the purposes described.
Applicants must include in the one-page abstract submitted with the application a statement indicating which competitive preference priority or priorities they are addressing.
These priorities are:
Projects that are designed to significantly increase efficiency in the use of time, staff, money, or other resources while improving student learning or other educational outcomes (i.e., outcome per unit of resource). Such projects may include innovative and sustainable uses of technology, modification of school schedules and teacher compensation systems, use of open educational resources (as defined in this notice), or other strategies.
The types of projects identified in competitive preference priority 1 are suggestions for ways to improve productivity. The Department recognizes that some of these examples, such as modifications of teacher compensation systems, may not be relevant to this program. Accordingly, applicants that address this priority should respond to this competitive preference priority in a way that improves productivity in a relevant higher education context. The Secretary is particularly interested in projects that improve student outcomes at lower costs.
Applicants addressing this priority should identify the specific outcomes to be measured and demonstrate that they have the ability to collect accurate data on both project costs and desired outcomes. In addition, they should include a discussion of the expected cost-effectiveness of the practice compared with current alternative practices.
Projects that are designed to collect (or obtain), analyze, and use high-quality and timely data, including data on program participant outcomes, in accordance with privacy requirements (as defined in this notice), in one or more of the following priority areas:
(a) Improving postsecondary student outcomes relating to enrollment, persistence, and completion and leading to career success; and
(b) Providing reliable and comprehensive information on the implementation of Department of Education programs, and participant outcomes in these programs, by using data from State longitudinal data systems or by obtaining data from reliable third-party sources.
Projects that are designed to improve student achievement (as defined in this notice) or teacher effectiveness through the use of high-quality digital tools or materials, which may include preparing teachers to use the technology to improve instruction, as well as developing, implementing, or evaluating digital tools or materials.
Projects responding to competitive preference priority 3 must incorporate ways to improve student achievement (as defined in this notice) or teacher effectiveness through the use of high-quality digital tools or materials. The Department recognizes that some of the examples in the definition of student achievement may not be relevant to the Training for Realtime Writers Program. Accordingly, applicants who are writing to competitive preference priority 3 should address paragraph (a)(2) of the definition of “student achievement,” which defines the term in reference to alternative measures of student learning, and should address this competitive preference priority in a way that improves student achievement in a relevant higher education context.
(a) For tested grades and subjects: (1) A student's score on the State's assessments under the ESEA; and, as appropriate, (2) other measures of student learning, such as those described in paragraph (b) of this definition, provided they are rigorous and comparable across schools.
(b) For non-tested grades and subjects: Alternative measures of student learning and performance, such as student scores on pre-tests and end-of-course tests; student performance on English language proficiency assessments; and other measures of student achievement that are rigorous and comparable across schools.
20 U.S.C. 1161s.
The regulations in 34 CFR Part 79 apply to all applicants except federally recognized Indian tribes.
The regulations in 34 CFR Part 86 apply to IHEs only.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2015 from the list of unfunded applicants from this competition.
The Department is not bound by any estimates in this notice.
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(b)
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To obtain a copy via the Internet, use the following address:
To obtain a copy from ED Pubs, write, fax, or call the following: ED Pubs, U.S. Department of Education, P.O. Box 22207, Alexandria, VA 22304. Telephone, toll free: 1-877-433-7827. FAX: (703) 605-6794. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call, toll free: 1-877-576-7734.
You can contact ED Pubs at its Web site, also:
If you request an application from ED Pubs, be sure to identify this program or competition as follows: CFDA number 84.116K.
Individuals with disabilities can obtain a copy of the application package in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the program contact person listed in this section.
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Page Limit: The application narrative (Part III of the application) is where you, the applicant, address the selection criteria that reviewers use to evaluate your application. Any application addressing the competitive preference priorities must address them in the abstract and the narrative. You must limit the application narrative to no more than 15 pages, using the following standards:
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
For purposes of determining compliance with the page limit, each page on which there are words will be counted as one full page.
• Double space (no more than three lines per vertical inch) all text in the application narrative,
• Use a font that is either 12 point or larger; or, no smaller than 10 pitch (characters per inch). However, you may use a 10 point font in charts, tables, figures, graphs, footnotes, and endnotes.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial. An application submitted in any other font (including Times Roman or Arial Narrow) will not be accepted.
The page limit does not apply to Part I, the Application for Federal Assistance (SF 424) and the Department of Education Supplemental Information for the SF 424 Form; the one-page Abstract; Budget Information—Non-Construction Programs (ED 524); or Part IV, the Assurances and Certifications. The page limit also does not apply to a Table of Contents, if you include one. However, the page limit does apply to all of the project narrative section in Part III.
If you include any attachments or appendices not specifically requested, these items will be counted as part of the program narrative [Part III] for purposes of the page limit requirement.
We will reject your application if you exceed the page limit.
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Applications for grants under this program must be submitted electronically using the Grants.gov Apply site (Grants.gov). For information (including dates and times) about how to submit your application electronically, or in paper format by mail or hand delivery if you qualify for an exception to the electronic submission requirement, please refer to section IV. 7.
We do not consider an application that does not comply with the deadline requirements.
Individuals with disabilities who need an accommodation or auxiliary aid in connection with the application process should contact the person listed under
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a. Have a Data Universal Numbering System (DUNS) number and a Taxpayer Identification Number (TIN);
b. Register both your DUNS number and TIN with the System for Award Management (SAM) (formerly the Central Contractor Registry (CCR)), the Government's primary registrant database;
c. Provide your DUNS number and TIN on your application; and
d. Maintain an active SAM registration with current information while your application is under review by the Department and, if you are awarded a grant, during the project period.
You can obtain a DUNS number from Dun and Bradstreet. A DUNS number can be created within one to two business days.
If you are a corporate entity, agency, institution, or organization, you can obtain a TIN from the Internal Revenue Service. If you are an individual, you can obtain a TIN from the Internal Revenue Service or the Social Security Administration. If you need a new TIN, please allow 2-5 weeks for your TIN to become active.
The SAM registration process can take approximately seven business days, but may take upwards of several weeks, depending on the completeness and accuracy of the data entered into the SAM database by an entity. Thus, if you think you might want to apply for Federal financial assistance under a program administered by the Department, please allow sufficient time to obtain and register your DUNS number and TIN. We strongly recommend that you register early.
Once your SAM registration is active, you will need to allow 24 to 48 hours for the information to be available in Grants.gov and before you can submit an application through Grants.gov.
If you are currently registered with the SAM, you may not need to make any changes. However, please make certain that the TIN associated with your DUNS number is correct. Also note that you will need to update your registration annually. This may take three or more business days.
Information about SAM is available at
In addition, if you are submitting your application via Grants.gov, you must (1) be designated by your organization as an Authorized Organization Representative (AOR); and (2) register yourself with Grants.gov as an AOR. Details on these steps are outlined at the following Grants.gov Web page:
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Applications for grants under the Training for Realtime Writers Program, CFDA number 84.116K, must be submitted electronically using the Governmentwide Grants.gov Apply site at
We will reject your application if you submit it in paper format unless, as described elsewhere in this section, you qualify for one of the exceptions to the electronic submission requirement
You may access the electronic grant application for the Training for Realtime Writers Program at
Please note the following:
• When you enter the Grants.gov site, you will find information about submitting an application electronically through the site, as well as the hours of operation.
• Applications received by Grants.gov are date and time stamped. Your application must be fully uploaded and submitted and must be date and time stamped by the Grants.gov system no later than 4:30:00 p.m., Washington, DC time, on the application deadline date. Except as otherwise noted in this section, we will not accept your application if it is received—that is, date and time stamped by the Grants.gov system—after 4:30:00 p.m., Washington, DC time, on the application deadline date. We do not consider an application that does not comply with the deadline requirements. When we retrieve your application from Grants.gov, we will notify you if we are rejecting your application because it was date and time stamped by the Grants.gov system after 4:30:00 p.m., Washington, DC time, on the application deadline date.
• The amount of time it can take to upload an application will vary depending on a variety of factors, including the size of the application and the speed of your Internet connection. Therefore, we strongly recommend that you do not wait until the application deadline date to begin the submission process through Grants.gov.
• You should review and follow the Education Submission Procedures for submitting an application through Grants.gov that are included in the application package for this competition to ensure that you submit your application in a timely manner to the Grants.gov system. You can also find the Education Submission Procedures pertaining to Grants.gov under News and Events on the Department's G5 system home page at
• You will not receive additional point value because you submit your application in electronic format, nor will we penalize you if you qualify for an exception to the electronic submission requirement, as described elsewhere in this section, and submit your application in paper format.
• You must submit all documents electronically, including all information you typically provide on the following forms: The Application for Federal Assistance (SF 424), the Department of Education Supplemental Information for SF 424, Budget Information—Non-Construction Programs (ED 524), and all necessary assurances and certifications.
• You must upload any narrative sections and all other attachments to your application as files in a PDF (Portable Document) read-only, non-modifiable format. Do not upload an interactive or fillable PDF file. If you upload a file type other than a read-only, non-modifiable PDF or submit a password-protected file, we will not review that material.
• Your electronic application must comply with any page-limit requirements described in this notice.
• After you electronically submit your application, you will receive from Grants.gov an automatic notification of receipt that contains a Grants.gov tracking number. (This notification indicates receipt by Grants.gov only, not receipt by the Department.) The Department then will retrieve your application from Grants.gov and send a second notification to you by email. This second notification indicates that
• We may request that you provide us original signatures on forms at a later date.
If you are prevented from electronically submitting your application on the application deadline date because of technical problems with the Grants.gov system, we will grant you an extension until 4:30:00 p.m., Washington, DC time, the following business day to enable you to transmit your application electronically or by hand delivery. You also may mail your application by following the mailing instructions described elsewhere in this notice.
If you submit an application after 4:30:00 p.m., Washington, DC time, on the application deadline date, please contact the person listed under
The extensions to which we refer in this section apply only to the unavailability of, or technical problems with, the Grants.gov system. We will not grant you an extension if you failed to fully register to submit your application to Grants.gov before the application deadline date and time or if the technical problem you experienced is unrelated to the Grants.gov system.
• You do not have access to the Internet; or
• You do not have the capacity to upload large documents to the Grants.gov system;
• No later than two weeks before the application deadline date (14 calendar days; or, if the fourteenth calendar day before the application deadline date falls on a Federal holiday, the next business day following the Federal holiday), you mail or fax a written statement to the Department, explaining which of the two grounds for an exception prevent you from using the Internet to submit your application.
If you mail your written statement to the Department, it must be postmarked no later than two weeks before the application deadline date. If you fax your written statement to the Department, we must receive the faxed statement no later than two weeks before the application deadline date.
Address and mail or fax your statement to: Sarah T. Beaton, Training for Realtime Writers Program, U.S. Department of Education, 1990 K Street NW., Room 6154, Washington, DC 20006-8544. FAX: (202) 502-7877.
Your paper application must be submitted in accordance with the mail or hand delivery instructions described in this notice.
If you qualify for an exception to the electronic submission requirement, you may mail (through the U.S. Postal Service or a commercial carrier) your application to the Department. You must mail the original and two copies of your application, on or before the application deadline date, to the Department at the following address:
You must show proof of mailing consisting of one of the following:
(1) A legibly dated U.S. Postal Service postmark.
(2) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(3) A dated shipping label, invoice, or receipt from a commercial carrier.
(4) Any other proof of mailing acceptable to the Secretary of the U.S. Department of Education.
If you mail your application through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
If your application is postmarked after the application deadline date, we will not consider your application.
The U.S. Postal Service does not uniformly provide a dated postmark. Before relying on this method, you should check with your local post office.
If you qualify for an exception to the electronic submission requirement, you (or a courier service) may deliver your paper application to the Department by hand. You must deliver the original and two copies of your application, by hand, on or before the application deadline date, to the Department at the following address:
The Application Control Center accepts hand deliveries daily between 8:00 a.m. and 4:30:00 p.m., Washington, DC time, except Saturdays, Sundays, and Federal holidays.
If you mail or hand deliver your application to the Department—
(1) You must indicate on the envelope and—if not provided by the Department—in Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the competition under which you are submitting your application; and
(2) The Application Control Center will mail to you a notification of receipt of your grant application. If you do not receive this notification within 15 business days from the application deadline date, you should call the U.S. Department of Education Application Control Center at (202) 245-6288.
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In addition, in making a competitive grant award, the Secretary also requires various assurances including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department of Education (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multi-year award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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This measure constitutes the Department's indicator of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to this measure in conceptualizing the approach and evaluation for its proposed project.
If funded, you will be required to collect and report data in your project's annual performance report (34 CFR 75.590).
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Sarah T. Beaton, Training for Realtime Writers Program, U.S. Department of Education, 1990 K Street NW., Room 6154, Washington, DC 20006-8544. Telephone: (202) 502-7621 or by email:
If you use a TDD or a TTY, call the Federal Relay Service, toll free, at 1-800-877-8339.
You may also access documents of the Department published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of Petition for Waiver, Notice of Granting Application for Interim Waiver, and Request for Public Comments.
This notice announces receipt of a petition for waiver from Felix Storch, Inc. (FSI) seeking an exemption from specified portions of the U.S. Department of Energy (DOE) test procedure for determining the energy consumption of certain electric refrigerators and refrigerator-freezers. FSI asks that it be permitted to use an alternate test procedure to account for the energy consumption of its specific models of its Keg Beer Coolers, Assisted
DOE will accept comments, data, and information with respect to the FSI Petition until April 16, 2014.
You may submit comments, identified by case number “RF-038,” by any of the following methods:
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Mr. Bryan Berringer, U.S. Department of Energy, Building Technologies Office, Mail Stop EE-5B, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-0371. Email:
Mr. Michael Kido, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC-71, Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585-0103. Telephone: (202) 586-8145. Email:
Title III, Part B of the Energy Policy and Conservation Act of 1975 (EPCA), Public Law 94-163 (42 U.S.C. 6291-6309, as codified, established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, which includes the electric refrigerators and refrigerator-freezers that are the focus of this notice.
The regulations set forth in 10 CFR part 430.27 contain provisions that enable a person to seek a waiver from the test procedure requirements for covered products. The Assistant Secretary for Energy Efficiency and Renewable Energy (the Assistant Secretary) will grant a waiver if it is determined that the basic model for which the petition for waiver was submitted contains one or more design characteristics that prevents testing of the basic model according to the prescribed test procedures, or if the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(l). Petitioners must include in their petition any alternate test procedures known to the petitioner to evaluate the basic model in a manner representative of its energy consumption. The Assistant Secretary may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(l). Waivers remain in effect pursuant to the provisions of 10 CFR 430.27(m).
The waiver process also allows the Assistant Secretary to grant an interim waiver from test procedure requirements to manufacturers that have petitioned DOE for a waiver of such prescribed test procedures. 10 CFR 430.27(g). An interim waiver remains in effect for 180 days or until DOE issues its determination on the petition for waiver, whichever occurs earlier. DOE may extend an interim waiver for an additional 180 days. 10 CFR 430.27(h).
On December 12 and 17, 2013, FSI submitted a petition for waiver from the test procedure applicable to residential electric refrigerators and refrigerator-freezers set forth in 10 CFR part 430, subpart B, appendices A and A1. In its petition, FSI asserts that its products could not be tested and rated for energy consumption on a basis representative of their true energy consumption characteristics. The DOE test procedure for residential refrigeration (both the procedure that is required currently and the procedure that will be required beginning on September 15, 2014) require testing products at an ambient temperature of 90°F. DOE selected that temperature to simulate the effects of door openings and closings, which are not performed during the testing. See 10 CFR § 430.23(a)(10) (The regulation explains, “[t]he intent of the energy test procedure is to simulate typical room conditions (approximately 70 °F (21 °C)) with door openings, by testing at 90 °F (32.2 °C) without door openings.”). FSI contends that the products addressed by its waiver petition will be sold for uses where door openings and closings are highly infrequent. As a result, in its view, testing these products in accordance with the DOE test procedure conditions would result in measurements of energy use that are unrepresentative of the actual energy use of these products under their conditions of expected use by consumers.
As an alternative, FSI submitted to DOE an alternate test procedure to account for the energy consumption of its Keg Beer Coolers, Assisted Living Refrigerator-freezers and Ultra-Compact Hotel Refrigerators. That procedure would test these units at 70°F or 72°F over a 24-hour period instead of the required 90°F ambient temperature condition. FSI believes its alternate test procedure will allow for the accurate measurement of the energy use of these products as required by the current DOE test procedure.
FSI also requests an interim waiver from the existing DOE test procedure for the models listed in its December 12, 2013 petition. An interim waiver may be granted if it is determined that the applicant will experience economic hardship if the application for interim waiver is denied, if it appears likely that the petition for waiver will be granted, and/or the Assistant Secretary determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the petition for waiver. See 10 CFR 430.27(g).
DOE has determined that FSI's application for interim waiver does not provide sufficient market, equipment price, shipments and other manufacturer impact information to permit DOE to evaluate the economic hardship FSI might experience absent a favorable determination on its application for interim waiver. DOE understands, based upon FSI's petition, that absent an interim waiver, FSI's products could not be tested and rated for energy consumption on a basis representative of their true energy consumption characteristics. However, DOE has found that FSI's petition provides insufficient information for DOE to determine whether the alternative test procedure that FSI proposes to use is likely to provide a measurement of the energy use of these products that is representative of their operation under conditions of expected consumer use. Since DOE has found it unlikely that FSI's waiver petition will be granted in its current form and has determined that it is not desirable for public policy reasons to grant FSI immediate relief, DOE is declining to grant an interim waiver and is seeking additional information on the underlying basis for FSI's proposed alternative.
DOE notes that the existing test procedures, as well as recent test procedure waivers, contain a method for addressing certain types of products for which less frequent door openings occur. Specifically, the test procedure for residential freezers applies an adjustment factor to account for the relatively fewer expected door openings of upright and chest freezers, each of which has a corresponding adjustment factor for the overall energy use. (
For the reasons stated above, before DOE will authorize the use of an alternative test procedure for testing of the specific models listed in the waiver petitions, DOE is seeking comment from interested stakeholders on whether FSI's proposed test is likely to be representative of the energy use of the products that are the subjects of the waiver petition or whether another alternative may be more appropriate.
DOE makes decisions on waivers and interim waivers for only those models specifically set out in the petition, not future models that may be manufactured by the petitioner. FSI may submit a new or amended petition for waiver and request for grant of interim waiver, as appropriate, for additional models of refrigerator-freezers for which it seeks a waiver from the DOE test procedure. In addition, DOE notes that granting of an interim waiver or waiver does not release a petitioner from the certification requirements set forth at 10 CFR part 429.
Through today's notice, DOE announces receipt of FSI's December 12, 2013 and December 17, 2013 petitions for waiver from the specified portions of the test procedure applicable to FSI's line of Keg Beer Coolers, Assisted Living Refrigerator-freezers and Ultra-Compact Hotel Refrigerators and declines to grant FSI an interim waiver from those same portions of the test procedure for the models specified in its December 12, 2013 request for interim waiver. The petition includes a suggested alternate test procedure to determine the energy consumption of FSI's specified refrigerator-freezers. DOE may consider including this alternate procedure in a subsequent Decision and Order. However, at this time, DOE cannot establish whether the alternative procedure proposed by FSI is an appropriate means for measuring the energy use of these products based solely on the information provided in the waiver petition.
DOE solicits comments from interested parties on all aspects of the petition, including the suggested alternate test procedure and calculation methodology. Pursuant to 10 CFR 430.27(d), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is: Paul Storch, President, Summit Appliance Div., Felix Storch, Inc., 770 Garrison Ave., Bronx, NY 10474. All submissions received must include the agency name and case number for this proceeding. Submit electronic comments in WordPerfect, Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).
The Department of Energy (“DOE”) provides a waiver process for refrigeration products when “the prescribed [10 CFR § 430, Subpart B, Appendix A1 currently and the proposed 10 CFR § 430, Subpart B, Appendix A] test procedures may evaluate [a product] . . . in a manner so unrepresentative of its true energy consumption characteristics . . . as to provide materially inaccurate comparative data.” 10 CFR § 430.27. This petition seeks such a waiver for the above-referenced products.
Felix Storch, Inc. (“FSI”) is a small business engaged in importing, manufacturing, and distributing appliances to niche markets in the household, commercial, hospitality, institutional, and medical community, as well as distributing household cooking and laundry appliances. Located in the South Bronx, New York, FSI employs approximately 150 individuals engaged in manufacturing, material handling, trucking,
DOE's test procedures are not appropriate for the above-referenced models because they fail to accurately reflect the actual energy consumption of the products during normal use. DOE test procedures for residential refrigeration (both the procedures in effect currently and the proposed procedures for 2014) require testing products at an ambient temperature of 90°F. DOE selected that temperature (as opposed to a more normal 70°F ambient) to simulate the effects of door openings and closings; such actions are not performed during the testing.
FSI seeks a waiver for the above-references products because:
(1) Test procedures do not provide a fair and accurate representation of actual energy use;
(2) The market size for each of these products is quite small;
(3) The economic burden of complying with DOE standards in effect today, and the proposed standards for 2014, would place an undue economic burden on FSI;
(4) There is an easily substituted alternate test procedure for these models;
(5) Withdrawing these products from the marketplace would greatly limit consumer choice, adversely impact small business and, in some cases, result in compelling customers to turn to larger or less energy efficient products that increase overall energy consumption.
For these reasons, FSI respectfully requests a waiver, pursuant to 10 CFR § 430.27, of the test procedures for residential refrigerators provided in 10 CFR § 430, Subpart B, Appendix A.
This waiver request applies to the following models:
All of these models are intended for uses distinct from the typical household use whereby the doors on these products are seldom opened and closed.
Manufacturers of other basic models marketed in the United States and known to FSI that incorporate similar design characteristics are included in Attachment A.
FSI has extensive data that demonstrates that a single change to the test procedure will result in measuring energy consumption in a manner far more representative of actual use.
Testing the basic models listed in this petition at an ambient temperature of 70°F or 72°F, rather than 90°F will measure energy consumption in a manner significantly more representative of actual use than using the DOE prescribed test procedures, both under current standards and those proposed for implementation on September 15, 2014.
DOE acknowledges in 10 CFR § 430.23(a)(10) that “[t]he intent of the energy test procedure is to simulate typical room conditions (approximately 70°F (21°C)) with door openings, by testing at 90°F (32.2°C) without door openings.”
DOE uses 90°F as a surrogate for running tests at typical ambient temperature to simulate the impact of opening and closing refrigerator and freezer doors. This standard is incorporated into the AHAM test procedures used by DOE in both the current standards and the upcoming 2014 standards. This temperature selection is at least 30 years old and is referenced in ANSI-AHAM HRF-1 (1979).
Several studies have attempted to validate this information. For example, one study showed that household refrigerators-freezers had a median of 48 fresh-food door openings and 10 freezer door openings per 24 hours.
A National Institute of Standards (“NIST”) study, commissioned by DOE, also demonstrated that when testing is performed at 90°F, as little as a 2 degree difference in ambient temperature can result in a dramatic difference in measured energy consumption.
Another study by P.K. Bansal, also an ASHRAE member, states that,
Elevated ambient temperatures used in most test procedures crudely simulate the heat loads from door openings. . . . This process fails to produce satisfactory results that could be representative of an in-situ real world refrigerator performance
Even a 2010 study by the Energy Analysis Department of the Lawrence Berkeley Laboratory, CA, supported by DOE, stated, “[i]n many cases the test procedures do not reflect field usage[.]”
Most of these studies were done on typical household refrigerator-freezers. FSI found no comparable data for compact refrigerators or, more specifically, on any of the type of products for which a waiver is sought in this petition. Indeed, DOE's own Technical Support Document, acknowledged that:
The approximation ignores the significantly important variable of the number of door openings and closings which greatly differs between a full size refrigerator used by a family and a specialty compact refrigerator used in a secondary application.
FSI performed tests on four representative models of refrigerators and beer dispensers., running tests at average 72°F (room) temperature and at 90°F. For one set of tests FSI opened and closed the doors of each unit six times per test, which exceeds the frequency of typical door openings and closings for these models. The second set of tests was conducted with doors remaining closed throughout the test. These tests consistently showed that all units at average 72°F (room temperature) used over 40% less energy than when run at 90°F. The tests with doors closed had a weighted average of 48% lower energy consumption than at 90°F, and tests with door openings had a weighted average of 46% lower energy consumption. Door openings consistent with actual use, or tests without door openings, did not change the overall results or the conclusions.
A summary of this data is presented in the following tables.
The units in this waiver application do not conform to the same usage as typical household full-size refrigerators: the doors on all of these basic units are opened and closed significantly less frequently than typical household refrigeration equipment. The units in this waiver petition also differ from the majority of compact refrigerator-freezers sold for dormitory or office use, which are typically shared by a number of users.
Beer coolers, by their nature, have their doors opened and closed only when a keg needs to be changed. Depending on usage, this may be once weekly, once monthly, or even less frequently. Beer in kegs is always
Refrigerators whose primary market is assisted living centers generally do not serve as a primary refrigerator.
FSI's proprietary ultra-compact refrigerators (with compressors) for hotel rooms are planned for introduction in early 2014 and are designed for guest convenience.
Based on the information presented, FSI proposes the following modifications be made to the DOE test procedures for the models named in this petition:
1. Beer dispensers (Models SBC590, SBC590OS and SBC635M); be tested at an ambient temperature of 70°F (per DOE's estimate of approximately 70°F as typical room-temperature) with the doors closed;
2. Hotel and assisting living refrigerators (Models ALBF44, ALBF68, ALBF68, HTL2 and HTL3) be tested at 72°F to account for the very small number of daily door openings (where 2°F is 10% of the difference between 70°F and 90°F and door openings of these products groups are no more than 10% of the typical household refrigerators);
3. The units be tested for 24 continuous hours after stabilization to account for any timers used in the assisted living and hotel refrigerators; and
4. All other test procedures are conducted in accordance with AHAM and DOE test procedures for residential refrigerators.
FSI targets niche markets with many models, including those referenced herein, where the overall sales volume is too limited to appeal to manufacturers driven by mass production and economies of scale. In some cases, not allowing products that address certain size or use needs to market will have the unintended consequences of substantially reducing consumer choice and driving energy consumption up through a switch to larger models.
For example, in the case of the assisted living markets, withdrawing specialty products from this small, niche market may force facilities to purchase larger refrigerators than necessary, increasing overall energy usage. The convenience and accessibility of these compact products is often more appropriate for assisted living residents. If suitably sized products are not available, facilities might be forced to remodel a kitchenette when a refrigerator needs replacing.
In the case of the hotel industry, hotels (excluding extended stay hotels or suite type hotels) often use refrigerators that are driven by an absorption cooling system or by a thermoelectric cooling system (also called heat pipe systems). These cooling systems use significantly more energy than compressor systems, but are chosen by hotels for their low noise levels. It is important to note that these basic units may not be covered products for DOE because their design does not always allow them to reach the 39°F threshold and, therefore, may not be considered a refrigerator per the statutory definition. [
Failure to grant these basic models waivers from test procedures would have severe economic consequences for FSI.
Very large, multi-national corporations dominate the appliance market, led by Whirlpool and General Electric, whose sales are in the billions of dollars. Foreign companies with appliance sales in the billions of dollars and with a large U.S. presence include Electrolux (Frigidaire), LG, Samsung, Daiwoo, Bosch, Liebherr, Miele, AGA-Marvel, Bertazoni, Smeg, Haier, and Midea. FSI cannot compete with these companies' mass markets, with huge economies of scale on production, and distribution and insignificant compliance testing costs. FSI predominantly markets specialty
In response to DOE 2014 test procedures, FSI is working very hard to modify the vast majority of its residential refrigerator and freezer product line to comply with the new procedures. But in a number of niche markets with very small sales, the feasibility and costs of compliance are highly disproportionate for FSI to make a business case and will not result in energy savings. This results in an undue burden on FSI, for which these niche products form the nucleus of FSI's manufacturing operations and are the driver of job creation in disadvantaged economic development areas. Unlike the large companies mentioned above who can spread the cost of meeting current DOE and upcoming DOE 2014 standards and, in particular, test procedures over a base of millions, hundreds of thousands, or tens of thousands of units, a small business like FSI does not have this option.
DOE has acknowledged the difficulties faced by both small manufacturers and the compact refrigeration industry dealing with standards. FSI falls into both categories and 90% of FSI's refrigeration business is restricted to compact classes. DOE reports that compact appliances only account for 2.5% of total energy consumed by all refrigeration products.
The waiver process clearly is intended for situations where test procedures do not provide an accurate representation of actual energy consumption. FSI has demonstrated that the test procedures specified by DOE do not provide representative measure of the basic models in this waiver application, whose doors are opened and closed significantly less than typical household use.
FSI has demonstrated that:
• The use of 90°F is designed to simulate an average of 40 to 50 door openings per day and, even at that level, may overstate energy usage;
• The models listed in this waiver application have their doors opened and closed infrequently, and certainly significantly less than the simulation average;
• An alternate test procedure is readily available consisting of testing the products at 70°F or 72°F, over a 24 hour period, and holding all other test procedures in accordance with AHAM Procedures and 10 CFR § 430, Subpart B, Appendix A and Appendix A1.
• Failure to grant this waiver will cause severe economic hardship to FSI, a small business, and likely will cause switch to higher energy consuming replacement products.
• Keg Beer Coolers (Models SBC590, SBC590OS, and SBC635M)
• Assisted Living Refrigerator-freezers (Models ALBF44, ALBF68)
• Hotel Refrigerators (Models HTL2 and HTL3)
Felix Storch, Inc. (FSI) through this Application for Interim Waiver will demonstrate likely success of the petition for waiver and address what economic hardship and/or competitive disadvantage is likely to result, absent a favorable determination on the Application for Interim Waiver.
This application for interim waiver applies to the following models:
• Keg Beer Coolers (Models SBC590, SBC590OS, and SBC635M)
• Assisted Living Refrigerator-freezers (Models ALBF44, ALBF68)
• Hotel Refrigerators (Models HTL2 and HTL3)
Jointly, these models are referred to throughout as `refrigerators'. Further information to support this application is contained in the Petition for Waiver filed simultaneously to this application.
Felix Storch, Inc. is not asking for any part of this interim waiver request to be redacted.
FSI markets a wide range of refrigeration equipment for sale into specialty and niche markets. These refrigerators need to comply with energy efficiency standards issued and enforced by the Department of Energy (DOE). DOE relies on a single test procedure for all residential refrigerators and freezers. While the test procedure will change slightly on Sept. 15, 2014, the basic method of conducting the test will remain unchanged. FSI can conclusively demonstrate that for the specific products in this waiver petition, both test procedures are “so unrepresentative of its true energy consumption characteristics . . . as to provide materially inaccurate comparative data.”
These test procedures will result in reported energy usage that is substantially higher than actual energy consumption and fail to represent real world operating conditions. As such, we believe that it is highly likely that we will succeed on the merits of the waiver petition. The products listed above meet DOE's intent in creating the waiver petition process and the criteria for establishing test procedures that enable DOE to evaluate products in a manner representative of true energy consumption and provide for accurate comparative data. FSI's approach to developing more representative test procedures is supported throughout the studies cited in the waiver petition and FSI in-situ testing.
The residential appliance business is a highly competitive business. Companies that specialize in niche products with low annual sales, cumulative and for any given product, inherently have higher unit costs for a number of reasons, including:
• The cost of manufacturing the product is high, and there is less efficiency of scale;
• The cost of marketing and distributing niche products is higher than mass market products;
• Small companies have to divide fixed overhead by relatively low unit sales.
This is exacerbated by the costs to register and comply with energy efficiency standards. When divided over only dozens or hundreds of units sold annually, testing costs can add 5% to 25% or more to a product's selling price, and could be the determinative factor between profit and loss. As a consequence, it is vitally important that energy testing be done in a manner that is representative of actual energy consumption and does not unduly drive up the costs to comply with standards that provide inaccurate test measurements.
All of the products in this interim waiver application are compact refrigeration equipment. Compact refrigerators are primarily designed for situations where there are space limitations (either height or width or depth or a combination). As such, compact appliances do not have the options to decrease energy consumption by increasing the dimensions and adding additional insulating material. Compact appliances also have far more design limitations on the size and placement of components such as evaporators, condensers, compressors and fans because there are much smaller areas to work in.
Failure to obtain an interim waiver in a timely manner will create severe economic hardship to FSI. Products in this waiver request will all serve markets that have fewer choices than mainstream markets, which all offer increased consumer choice. None of the subject products are the most common `dormitory' or office type compact refrigerators sold through mass market retailers.
FSI is developing new products that will have many benefits and offer consumers more energy efficient choices, which will comply with DOE standard in accordance with appropriate test procedures. Yet, these products, when measured by the current and proposed DOE test procedures, will not reflect their true energy consumption. There are valid reasons why these specialty refrigerators will be used in a completely different manner than the “typical” residential refrigerator. When energy consumption is measured in a representative manner, all are energy efficient and will comply with applicable DOE standards. All will contribute to the value added manufacturing done in our South Bronx facility. And all are intended to meet market demand in very small markets, and offer consumers a more suitable alternative to general purpose refrigerators. FSI has demonstrated that a single change to the test procedure will produce representative data, and allow FSI to market niche products that are the most suitable for some consumer applications.
The new DOE residential standards that take effect Sept. 15, 2014 will force significant industry wide changes. Smaller companies such as FSI will be the most adversely impacted as many products that cannot meet the new standards will be withdrawn from the market. With many FSI products only selling a few hundred units annually or even fewer, the R&D and design changes needed to reduce energy consumption are cost prohibitive. Without a stream of new products to hold revenue steady, companies such as FSI will suffer severe revenue loss, employment loss and are threatened.
The failure to issue this interim waiver will not only deprive FSI of the revenue and gross profit from this group of products, but it will weaken our competitive position in the marketplace. In the waiver application, FSI identifies about a dozen major players in the appliance marketplace we compete with, all of whom have over a billion dollars in annual revenue. All but two
As a consequence of these circumstances, FSI would suffer serious economic hardship, and would be at a competitive disadvantage unless an interim waiver is granted for the products in this petition.
FSI initiated a petition for waiver for the list of specialty refrigerators that are designed to provide consumer choice in niche markets. These products differ substantially in their use from typical household or dormitory type refrigerators. The current test procedures measure energy use in a manner that is so unrepresentative of these products' true energy consumption that they provide materially inaccurate comparative data. FSI respectfully requests that you grant an interim waiver of the test procedures of 10 CFR § 430, subpart B, appendix A1 and the proposed 10 CFR § 430, subpart B, appendix A to the procedure outlined in our waiver request, so that it may avoid severe economic hardship while DOE processes the petition.
The Department of Energy (“DOE”) provides a waiver process for refrigeration products when “the prescribed [10 CFR § 430, Subpart B, Appendix A1 currently and the proposed 10 CFR § 430, Subpart B, Appendix A] test procedures may evaluate [a product] . . . in a manner so unrepresentative of its true energy consumption characteristics . . . as to provide materially inaccurate comparative data.” 10 CFR § 430.27. This petition seeks such a waiver for the above-referenced products from 2014 and forward test procedures for residential refrigerators provided in 10 CFR § 430, Subpart B, Appendix A.
Felix Storch, Inc. (“FSI”) is a small business engaged in importing, manufacturing, and distributing appliances to niche markets in the household, commercial, hospitality, institutional and medical community, as well as distributing household cooking and laundry appliances. Located in the South Bronx, New York, FSI employs approximately 150 individuals engaged in manufacturing, material handling, trucking, engineering, marketing, sales, shipping, clerical services and customer service. FSI, under the Summit brand name, imports refrigeration products from a number of factories in Europe, Mexico and Asia, as well as manufactures a number of products in New York. A significant part of FSI's business is value-added manufacturing conducted by FSI in its Bronx facility. Value-added manufacturing is the process of adding or modifying components or finishes to existing products in order to adapt these appliances for sale to special markets where few or no suitable products exist. The above-referenced models are all either built or modified in our Bronx facility.
DOE's test procedures are not appropriate for the above-referenced models because they fail to accurately reflect the actual energy consumption of the products during normal use. DOE test procedures for residential refrigeration (both the procedures in effect currently and the proposed procedures for 2014) require testing products at an ambient temperature of 90°F. DOE selected that temperature (as opposed to a more normal 70°F ambient) to simulate the effects of door openings and closings; such actions are not performed during the testing.
FSI seeks a waiver for the above-references products because:
(1) Test procedures do not provide a fair and accurate representation of actual energy use;
(2) The market size for each of these products is quite small;
(3) The economic burden of complying with DOE standards in effect today, and the proposed standards for 2014, would place an undue economic burden on FSI;
(4) There is an easily substituted alternate test procedure for these models;
(5) Withdrawing these products from the marketplace would greatly limit consumer choice, adversely impact small business and, in some cases, result in compelling customers to turn to larger or less energy efficient products that increase overall energy consumption.
For these reasons, FSI respectfully requests a waiver, pursuant to 10 C.F.R. § 430.27, of the test procedures for residential refrigerators provided in 10 CFR § 430, Subpart B, Appendix A.
1. Models for which a waiver is requested.
This waiver request applies to the following models:
• Keg Beer Coolers (Models SBC490B; SBC570R);
• Assisted Living Refrigerators: (Models FF71TB, FF73, FF74, AL650R, ALB651BR, AL652BR, ALB653BR, CT66RADA, CT67RADA, AL750R, ALB751R, AL752BR, and ALB753LBR);
• Ultra-Compact, Hotel Refrigerators (Models FF28LH, FF29BKH, FFAR21H, and FFAR2H).
All of these models are intended for uses distinct from the typical household use whereby the doors on these products are seldom opened and closed.
2. Manufacturers of other basic models marketed in the United States are known by FSI to incorporate similar design characteristics.
Manufacturers of other basic models marketed in the United States and known to FSI that incorporate similar design characteristics are included in Attachment A.
3. Alternate test procedures are known to FSI to evaluate accurately energy consumption of the listed basic models.
FSI has extensive data that demonstrates that a single change to the test procedure will result in measuring energy consumption in a manner far more representative of actual use.
Testing the basic models listed in this petition at an ambient temperature of 70°F or 72°F, rather than 90°F will measure energy consumption in a manner significantly more representative of actual use than using the DOE prescribed test procedures, both under current standards and those proposed for implementation on September 15, 2014.
DOE acknowledges in 10 CFR § 430.23(a)(10) that “[t]he intent of the energy test procedure is to simulate typical room conditions (approximately 70°F (21°C)) with door openings, by testing at 90°F (32.2°C) without door openings.”
DOE uses 90°F as a surrogate for running tests at typical ambient temperature to simulate the impact of opening and closing refrigerator and freezer doors. This standard is incorporated into the AHAM test procedures used by DOE in both the current standards and the upcoming 2014 standards. This temperature selection is at least 30 years old and is referenced in ANSI-AHAM HRF-1 (1979).
Several studies have attempted to validate this information. For example, one study showed that household refrigerators-freezers had a median of 48 fresh-food door openings and 10 freezer door openings per 24 hours.
A National Institute of Standards (“NIST”) study, commissioned by DOE, also demonstrated that when testing is performed at 90°F, as little as a 2 degree difference in ambient temperature can result in a dramatic difference in measured energy consumption.
Even a 2010 study by the Energy Analysis Department of the Lawrence Berkeley Laboratory, CA, supported by DOE, stated, “[i]n many cases the test procedures do not reflect field usage[.]”
All of these studies were done on typical household refrigerator-freezers. FSI found no comparable data for compact refrigerators or, more specifically, on any of the type of products for which a waiver is sought in this petition. Indeed, DOE's own Technical Support Document, acknowledged that:
The approximation ignores the significantly important variable of the number of door openings and closings which greatly differs between a full size refrigerator used by a family and a specialty compact refrigerator used in a secondary application.
FSI performed tests on four representative models of refrigerators and beer dispensers, running tests at average 72°F (room) temperature and at 90°F. For one set of tests FSI opened and closed the doors of each unit six times per test, which exceeds the frequency of typical door openings and closings for these models. The second set of tests was conducted with doors remaining closed throughout the test. These tests consistently showed that all units at average 72°F (room temperature) used over 40% less energy than when run at 90°F. The tests with doors closed had a weighted average of 48% lower energy consumption than at
A summary of this data is presented in the following tables.
The units in this waiver application do not conform to the same usage as typical household full-size refrigerators: The doors on all of these basic units are opened and closed significantly less frequently than typical household refrigeration equipment. The units in this waiver petition also differ from the majority of compact refrigerator-freezers sold for dormitory or office use, which are typically shared by a number of users.
Beer coolers, by their nature, have their doors opened and closed
Refrigerators whose primary market is assisted living centers generally do not serve as a primary refrigerator.
FSI's proprietary ultra-compact refrigerators (with compressors) for hotel rooms are planned for introduction in early 2014 and are designed for guest convenience.
Based on the information presented, FSI proposes the following modifications be made to the DOE test
1. Beer dispensers (Models SBC490B and SBC570R); be tested at an ambient temperature of 70°F (per DOE's estimate of approximately 70°F as typical room-temperature) with the doors closed;
2. Hotel and assisting living refrigerators (Models FF71TB, FF73, FF74, AL650R, ALB651BR, AL652BR, ALB653BR, CT66RADA, CT67RADA, AL750R, ALB751R, AL752BR, ALB753LBR. FF28LH, FF29BKH, FFAR21H, and FFAR2H) be tested at 72°F to account for the very small number of daily door openings (where 2°F is 10% of the difference between 70°F and 90°F and door openings of these products groups are no more than 10% of the typical household refrigerators);
3. The units be tested for 24 continuous hours after stabilization to account for any timers used in the assisted living and hotel refrigerators; and
4. All other test procedures be conducted in accordance with AHAM and DOE test procedures for residential refrigerators.
FSI targets niche markets with many models, including those referenced herein, where the overall sales volume is too limited to appeal to manufacturers driven by mass production and economies of scale. In some cases, not allowing products that address certain size or use needs to market will have the unintended consequences of substantially reducing consumer choice and driving energy consumption up through a switch to larger models.
For example, in the case of the assisted living markets, withdrawing specialty products from this small, niche market may force facilities to purchase larger refrigerators than necessary, increasing overall energy usage. The convenience and accessibility of these compact products is often more appropriate for assisted living residents. If suitably sized products are not available, facilities might be forced to remodel a kitchenette when a refrigerator needs replacing.
In the case of the hotel industry, hotels (excluding extended stay hotels or suite type hotels) often use refrigerators that are driven by an absorption cooling system or by a thermoelectric cooling system (also called heat pipe systems). These cooling systems use significantly more energy than compressor systems, but are chosen by hotels for their low noise levels. It is important to note that these basic units may not be covered products for DOE because their design does not always allow them to reach the 39°F threshold and, therefore, may not be considered a refrigerator per the statutory definition. [
Failure to grant these basic models waivers from test procedures would have severe economic consequences for FSI.
Very large, multi-national corporations dominate the appliance market, led by Whirlpool and General Electric, whose sales are in the billions of dollars. Foreign companies with appliance sales in the billions of dollars and with a large U.S. presence include Electrolux (Frigidaire), LG, Samsung, Daiwoo, Bosch, Liebherr, Miele, AGA-Marvel, Bertazoni, Smeg, Haier, and Midea. FSI cannot compete with these companies' mass markets, with huge economies of scale on production, and distribution and insignificant compliance testing costs. FSI predominantly markets specialty appliances that respond to niche market demands and customer choice.
In response to DOE 2014 test procedures, FSI is working very hard to modify the vast majority of its residential refrigerator and freezer product line to comply with the new procedures. But in a number of niche markets with very small sales, the feasibility and costs of compliance are highly disproportionate for FSI to make a business case and will not result in energy savings. This results in an undue burden on FSI, for which these niche products form the nucleus of FSI's manufacturing operations and are the driver of job creation in disadvantaged economic development areas. Unlike the large companies mentioned above who can spread the cost of meeting current DOE and upcoming DOE 2014 standards and, in particular, test procedures over a base of millions, hundreds of thousands, or tens of thousands of units, a small business like FSI does not have this option.
DOE has acknowledged the difficulties faced by both small manufacturers and the compact refrigeration industry dealing with standards. FSI falls into both categories and 90% of FSI's refrigeration business is restricted to compact classes. DOE reports that compact appliances only account for 2.5% of total energy consumed by all refrigeration products.
FSI greatly appreciates DOE's prompt attention to this petition for waiver, to allow for proper planning and avoiding additional, unnecessary economic hardship and financial burdens on FSI. Design changes to existing models and new product introductions routinely take 8 to 12 months for appliances. Without a prompt response to this petition for waiver, FSI cannot effectively plan its product line in a manner compliant with the new procedures and standards that take effect on September 15, 2014. For a small business manufacturer such as FSI, who specializes in niche product markets, uncertainty over test procedures will cause unnecessary costs without delivering any energy benefits or savings.
DOE in its guidance on waivers commits to act promptly on waiver requests
FSI appreciates DOE's recognition of the need to act promptly on these waiver requests and hopes DOE will take such an approach in responding to this petition in a manner that does not impose additional economic burdens on FSI. The objective is to assure that all test procedures result in representative indication of a product's true energy consumption, without imposing unnecessary costs on small business appliance manufacturers such as FSI.
The waiver process clearly is intended for situations where test procedures do not provide an accurate representation of actual energy consumption. FSI has demonstrated that the test procedures specified by DOE do not provide representative measure of the basic models in this waiver application, whose doors are opened and closed significantly less than typical household use.
FSI has demonstrated that:
• The use of 90°F is designed to simulate an average of 40 to 50 door openings per day and, even at that level, may overstate energy usage;
• The models listed in this waiver application have their doors opened and closed infrequently, and certainly significantly less than the simulation average;
• An alternate test procedure is readily available consisting of testing the products at 70°F or 72°F, over a 24 hour period, and holding all other test procedures in accordance with AHAM Procedures and 10 CFR § 430, Subpart B, Appendix A;
• Failure to grant this waiver will cause severe economic hardship to FSI, and in some cases, will cause energy consumption to be higher than if the waiver were granted.
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Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
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Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR § 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on March 6, 2014, pursuant to Rule 207(a)(2) of the Commission's Rules of Practices and Procedure, 18 CFR 385.207(a)(2)(2014), Sunoco Pipeline L.P. and SunVit Pipeline LLC jointly filed a petition requesting a declaratory order, approving the specified rate structures, terms of service, and prorationing methodology for the proposed Permian Express 2 pipeline project (Project). The Project will carry crude oil from the Permian Basin in west Texas to downstream markets and refineries, as more fully explained in the petition.
Any person desiring to intervene or to protest in this 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 5:00 p.m. Eastern time on the specified comment date. 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 Petitioner.
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 5 copies of the intervention or protest to the Federal Energy Regulatory Commission,
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 email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that on March 4, 2014, pursuant to Rule 204 of the Commission's Rules of Practices and Procedure, 18 CFR 385.202, Valero Terminaling and Distribution Company (VTDC) filed a petition requesting that the Commission grant a temporary waiver of the Interstate Commerce Act's section 6 and section 20 tariff filing and reporting requirements applicable to interstate common carrier pipelines. VTDC's waiver request applies to the Turpin Pipeline system which VTDC owns and operates, as explained more fully in the petition.
Any person desiring to intervene or to protest in this 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 5:00 p.m. Eastern time on the specified comment date. 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 Petitioner.
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 5 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 email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that on February 28, 2014, Carolina Gas Transmission Corporation (CGT), 601 Old Taylor Road, Cayce, South Carolina 29033, filed in Docket No. CP14-97-000, a prior notice request pursuant to sections 157.205, 157.208 and 157.210 of the Commission's Regulations under the Natural Gas Act (NGA) as amended, requesting authorization to construct a new compressor station near Edgemoor, Chester County, South Carolina (Edgemoor Compressor Station). CGT also proposes to install, approximately 1,300 feet of 8-inch diameter pipeline, and to increase the maximum allowable operating pressure on its existing Line 2 (Edgemoor Compressor Project), all as more fully set forth in the application which is on file with the Commission and open to public inspection. The filing may also be viewed on the Web at
Specifically, CGT states that the Edgemoor Compressor Project will provide an additional 45,000 dekatherms per day of firm transportation capacity to two customers. CGT submits that the Edgemoor Compressor Station will consist of three 1,600 horsepower (HP) natural gas-fired turbine compressor units and one 4,700 HP natural gas-fired turbine compressor unit. CGT estimates that the cost of the proposed Project will be $23.8 million.
Any questions concerning this application may be directed to each of the following persons: Michael R. Ferguson, Carolina Gas Transmission Corporation, 601 Old Taylor Road, Cayce, South Carolina, 29033, by telephone (803) 217-2107 or by email at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to Section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenter's will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenter's will not be required to serve copies of filed documents on all other parties. However, the non-party commentary, will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Proposed Information Collection Request; Comment Request; Federal Implementation Plans Under the Clean Air Act for Indian Reservations in Idaho, Oregon and Washington” (EPA ICR No. 2020.06, OMB Control No. 2060-0558) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501,
Comments must be submitted on or before May 16, 2014.
Submit your comments, referencing Docket ID No. EPA-R10-OAR-2013-0788 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Paul Koprowski, Office of Air, Waste and Toxics, Oregon Operations Office, Environmental Protection Agency Region 10, 805 SW Broadway, Suite 500, Portland, OR 97205; telephone number: (503) 326-6363; fax number: (503) 326-3399; email address:
Supporting documents which explain in detail the information that EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
The forms associated with this ICR are:
The forms listed above are available for review in the EPA docket.
Respondents or affected entities potentially affected by this action include owners and operators of emission sources in all industry groups and tribal governments, located in the identified Indian reservations. Categories and entities potentially affected by this action are expected to include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially affected by this action.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), Recordkeeping Requirements for Producers, Registrants and Applicants of Pesticides and Pesticide Devices under Section 8 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (EPA ICR No. 0143.12, OMB Control No. 2070-0028) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before May 16, 2014.
Submit your comments, referencing Docket ID No. EPA-HQ-OECA-2014-0132, online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Michelle Stevenson, Office of Compliance, Monitoring, Assistance, and Media Programs Division, Pesticides, Waste & Toxics Branch (2225A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-4203; fax number: (202) 564-0085; email:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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, e.g., permitting electronic submission of responses. EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before May 16, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The
Federal Communications Commission (FCC).
Notice; request for comments.
As part of its continuing effort to reduce paperwork burden and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3502—3520), the FCC invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimates; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB Control Number.
Written PRA comments should be submitted on or before April 16, 2014. If you anticipate that you will be
Submit your PRA comments to Nicholas A. Fraser, Office of Management and Budget (OMB), via fax at 202-395-5167, or via the Internet at
Leslie Smith, OMD, FCC, at 202-418-0217, or via the Internet at:
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before May 16, 2014. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
On March 3, 2011, the Commission adopted a Second Report and Order (“Second R&O”), First Order on Reconsideration, and Second Further Notice of Proposed Rule Making in MB Docket No. 09-52, FCC 11-28. The First Order on Reconsideration modified the initially adopted Tribal Priority coverage requirement, by creating an alternate coverage standard under criterion (2), enabling Tribes to qualify for the Tribal Priority even when their Tribal lands are too small or irregularly shaped to comprise 50 percent of a station's signal. In such circumstances, Tribes may claim the priority (i) if the proposed principal community contour encompasses 50 percent or more of that Tribe's Tribal lands, but does not cover more than 50 percent of the Tribal lands of a non-applicant Tribe; (ii) serves at least 2,000 people living on Tribal lands, and (iii) the total population on Tribal lands residing within the station's service contour constitutes at least 50 percent of the total covered population, with provision for waivers as necessary to effectuate the goals of the Tribal Priority. This modification will now enable Tribes with small or irregularly shaped lands to qualify for the Tribal Priority.
The modifications to the Commission's allotment and assignment policies adopted in the Second R&O included a rebuttable “Urbanized Area service presumption” under Priority (3), whereby an application to locate or relocate a station as the first local transmission service at a community located within an Urbanized Area, that would place a daytime principal community signal over 50 percent or more of an Urbanized Area, or that could be modified to provide such coverage, will be presumed to be a proposal to serve the Urbanized Area rather than the proposed community. In the case of an AM station, the determination of whether a proposed facility “could be modified” to cover 50 percent or more of an Urbanized Area will be made based on the applicant's certification in the Section 307(b) showing that there could be no rule-compliant minor modifications to the proposal, based on the antenna configuration or site, and spectrum availability as of the filing date, that could cause the station to place a principal community contour over 50 percent or more of an Urbanized Area. To the extent the applicant wishes to rebut the Urbanized Area service presumption, the Section 307(b) showing must include a compelling showing (a) that the proposed community is truly independent from the Urbanized Area; (b) of the community's specific need for an outlet of local expression separate from the Urbanized Area; and (c) the ability of the proposed station to provide that outlet.
In the case of applicants for new AM stations making a showing under Priority (4), other public interest matters, an applicant that can demonstrate that its proposed station would provide third, fourth, or fifth reception service to at least 25 percent of the population in the proposed primary service area, where the proposed community of license has two or fewer transmission services, may receive a dispositive Section 307(b) preference under Priority (4). An applicant for a new AM station that cannot demonstrate that it would provide the third, fourth, or fifth reception service to the required population at a community with two or fewer transmission services may also, under Priority (4), calculate a “service value index” as set forth in the case of Greenup, Kentucky and Athens, Ohio, Report and Order, 2 FCC Rcd 4319 (MMB 1987). If the applicant can demonstrate a 30 percent or greater difference in service value index between its proposal and the next highest ranking proposal, it can receive a dispositive Section 307(b) preference under Priority (4). Except under these circumstances, dispositive Section 307(b) preferences will not be granted under Priority (4) to applicants for new AM stations. The Commission specifically stated that these modified allotment and assignment procedures will not apply to pending applications for new AM stations and major modifications to AM facilities filed during the 2004 AM Auction 84 filing window.
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 404-639-7570 or send comments to Leroy Richardson, at 1600 Clifton Road, MS D74, Atlanta, GA 30333 or send an email 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.
The National Hospital Care Survey (NHCS) (OMB No. 0920-0212, Expires 04-30-2016)—Revision—National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC).
Section 306 of the Public Health Service (PHS) Act (42 U.S.C. 242k), as amended, authorizes that the Secretary of Health and Human Services (DHHS), acting through NCHS, shall collect statistics on the extent and nature of illness and disability of the population of the United States. This three-year clearance request for NHCS includes the collection of all impatient and ambulatory Uniform Bill-04 (UB-04) claims data or electronic health record (EHR) data from a sample of 581 hospitals as well as the collection of additional clinical data from a sample of
NHCS integrates the former National Hospital Discharge Survey (OMB No. 0920-0212), the National Hospital Ambulatory Medical Care Survey (NHAMCS) (OMB No. 0920-0278) and the Drug-Abuse Warning Network (DAWN) (OMB No. 0930-0078, expired 12/31/2011) previously conducted by the Substance Abuse and Mental Health Services Administration's (SAMHSA). Integration of NHAMCS and DAWN into the NHCS is part of a broader strategy to improve efficiency by minimizing redundancy in data collection; broadening our capability to collect more relevant data on transitions of care; and identifying opportunities to exploit electronic and administrative clinical data systems to augment primary data collection.
NHCS consists of a nationally representative sample of 581 hospitals. These hospitals are currently being recruited, and participating hospitals are submitting all of their inpatient and ambulatory care patient data in the form of electronic UB-04 administrative claims or EHR data. Currently, hospital-level data are collected through a paper questionnaire and additional clinical data are being abstracted from a sample of visits to EDs and OPDs. This activity continues in 2014, and as more hospitals choose to send EHR data that includes clinical information, the need to conduct abstraction will be reduced.
This revision seeks approval to continue voluntary recruitment and data collection for NHCS, including inpatient, outpatient and emergency care; to revise the hospital-level questionnaire with additional items needed to improve weighting procedures; to combine the OPD and ambulatory surgery location patient record forms to more effectively capture ambulatory procedures in these settings; to continue collection of substance-involved ED visit data previously collected by DAWN; and to eliminate data collection from freestanding ambulatory surgery centers in order to concentrate efforts on hospital-based settings of care.
NHCS collects data items at the hospital, patient, inpatient discharge, and visit levels. Hospital-level data items include ownership, number of staffed beds, hospital service type, and EHR adoption. Patient-level data items are collected from both electronic data and abstraction components and include basic demographic information, personal identifiers, name, address, social security number (if available), and medical record number (if available). Discharge-level data are collected through the UB-04 claims or EHR data and include admission and discharge dates, diagnoses, diagnostic services, and surgical and non-surgical procedures. Visit-level data are collected through either EHR data, or for those hospitals submitting UB-04 claims, through the claims as well as through abstraction of medical records for a sample of visits. These visit-level data include reason for visit, diagnosis, procedures, medications, substances involved, and patient disposition.
NHCS users include, but are not limited to, CDC, Congressional Research Office, Office of the Assistant Secretary for Planning and Evaluation (ASPE), National Institutes of Health, American Health Care Association, Centers for Medicare & Medicaid Services (CMS), SAMHSA, Bureau of the Census, Office of National Drug Control Policy, state and local governments, and nonprofit organizations. Other users of these data include universities, research organizations, many in the private sector, foundations, and a variety of users in the media.
Data collected through NHCS are essential for evaluating health status of the population, for the planning of programs and policy to improve health care delivery systems of the Nation, for studying morbidity trends, and for research activities in the health field. Historically, data have been used extensively in the development and monitoring of goals for the Year 2000, 2010, and 2020 Healthy People Objectives.
There is no cost to respondents other than their time to participate.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by
When commenting, please reference the document identifier or OMB control number (OCN). To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number ______, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Data submission, processing, and reporting will be analyzed for potential errors, inconsistencies, and gaps that are related to data handling, program requirements, and clinical quality measure specifications of PQRS and eRx program. Surveys of Group Practices, Registries, and Data Submission Vendors (DSVs) will be conducted in order to evaluate the PQRS and eRx Incentive Program. Follow-up interviews will occur with a small number of respondents.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by April 16, 2014.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of the following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
Reports Clearance Office at (410) 786-1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
2.
The CAH conditions of participation and accompanying information collection requirements specified in the regulations are used by surveyors as a basis for determining whether a CAH meets the requirements to participate in the Medicare program. We, along with the healthcare industry, believe that the availability to the facility of the type of records and general content of records, which this regulation specifies, is standard medical practice and is necessary in order to ensure the well-being and safety of patients and professional treatment accountability.
3.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Designation of New Animal Drugs for Minor Use or Minor Species (MUMS)—Final Rule” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850,
On December 11, 2013, the Agency submitted a proposed collection of information entitled “Designation of New Animal Drugs for Minor Use or Minor Species (MUMS)—Final Rule” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0605. The approval expires on February 28, 2017. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Procedures for the Safe Processing and Importing of Fish and Fishery Products” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850,
On November 25, 2013, the Agency submitted a proposed collection of information entitled “Procedures for the Safe Processing and Importing of Fish and Fishery Products” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0354. The approval expires on February 28, 2017. A copy of the supporting statement for this information collection is available on the Internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a collection of information entitled “Eye Tracking Experimental Studies To Explore Consumer Use of Food Labeling Information and Consumer Response to Online Surveys” has been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
FDA PRA Staff, Office of Operations, Food and Drug Administration, 1350 Piccard Dr., PI50-400B, Rockville, MD 20850,
On July 16, 2013, the Agency submitted a proposed collection of information entitled “Eye Tracking Experimental Studies To Explore Consumer Use of Food Labeling Information and Consumer Response to Online Surveys” to OMB for review and clearance under 44 U.S.C. 3507. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has now approved the information collection and has assigned OMB control number 0910-0761. The approval expires on January 31, 2016. A copy of the supporting statement for this information collection is available on the Internet at
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Agenda items are subject to change as priorities indicate.
Gladys Cate, Office of National Assistance and Special Populations, Bureau of Primary Health Care, Health Resources and Services Administration, 5600 Fishers Lane, Room 6-57, Maryland 20857; telephone (301) 594-0367.
Coast Guard, DHS.
Supplemental notice of availability with request for comments.
This is a supplemental notice to the August 9, 2013 request for comments on the draft changes to the Marine Safety Manual (MSM), Volume III, Marine Industry Personnel. The draft revision will be available in the docket for this notice. The primary reasons for this supplemental notice are to announce the incorporation in Volume III of the 2010 amendments to the STCW Convention, and to address the public comments received from the initial solicitation as well as input from the Merchant Marine Personnel Advisory Committee. Additionally, chapters 20 through 26 of Volume III have been reformatted, and are now presented as Volume III Part B, chapters 1 through 7. In the draft revision, these proposed revisions since the initial request for comments, including other changes necessary to reorganize and clarify Volume III, are highlighted in yellow. The Coast Guard will consider comments on this draft revision before issuing a final version of this manual.
Documents discussed in this notice should be available in the online docket within three business days of today's publication. Comments and related material must either be submitted to the online docket via
To view the documents mentioned in this notice, go to
If you have questions on this notice, call or email Lieutenant Corydon Heard, Office of Commercial Vessel Compliance, U.S. Coast Guard; telephone 202-372-1208, email
Volume III of the Marine Safety Manual (MSM) provides information and interpretations on international conventions and U.S. statutory and regulatory issues relating to marine industry personnel. The last revisions to Volume III of the MSM were released on May 27, 1999. This supplemental notice announces updates to portions of legacy chapters 20 through 26.
On August 9, 2013, the Coast Guard published a notice in the
We received fifteen public comment responses to the August 9, 2013
The basic ideas and principles encompassed in the initial draft change remain. Some commenters raised concerns and objections over several proposed revisions to the MSM. In response to these comments, the Coast Guard has made some additional
(1) We received several comments on what was generally perceived to be an increase in vessel manning, beyond that required by law or regulation. This was not the intention of this change and these sections have been clarified.
(2) Several commenters expressed concern over how an owner's decision to increase manning may be perceived by the Coast Guard and that the guidance provided did not adequately address when manning would warrant an additional review and modifications. To address this concern, these sections have been revised to focus on watchkeeping provisions, rest requirements, and the performance of maintenance.
(3) Other commenters suggested that certain tables and scales be deleted or revised in their entirety and that the tables for uninspected towing vessels be replaced with those recommended by Towing Vessel Safety Advisory Committee (TSAC). We disagree. Although certain tables have been amended in response to various comments, they reflect the current laws and regulations pertaining to the manning levels for various vessel types, including uninspected towing vessels. The Coast Guard has engaged with TSAC to develop sample manning scales, however this tasking and recommendation pertains to inspected towing vessels, in preparation for future regulation. Once finalized, the TSAC recommendation will be taken under consideration for future inclusion in MSM Volume III.
(4) A number of commenters urged the Coast Guard to consider, and include in this revision, the final agency action on pending appeals regarding when mariner credentials are required for persons in addition to the crew. We disagree. Decisions on appeal impacting requirements for certain persons in addition to the crew are being evaluated and will be addressed in the future.
(5) Multiple commenters noted that although the Coast Guard usually discusses manning changes with management, specific language should be added to that end. We agree and revisions have been incorporated to specifically mention the master as well as to include provisions for manning modifications to be discussed with the owner/operator.
Additional substantive revisions include: (1) the consolidation of existing Coast Guard Policy Letters into the Manual; (2) context on the allowable employment and conditions of a two-watch system for specific vessel types; and (3) policy updates reflecting the implementation of the 2010 amendments to the International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW). These revisions are presented in a new format, where MSM Volume III has been split into two distinct parts; Part A, Mariner Credentialing (Chapters 1-19) and Part B, Vessel Manning (legacy Chapters 20-26 are now Chapters 1-7).
It should be noted that the proposed revisions in this draft change are not intended to preempt or take the place of separate policy initiatives regarding specific decisions on appeal or future regulations. Future changes to the MSM may be released if the Coast Guard promulgates new regulations or appeal decisions, which may affect the guidance and information contained within the MSM.
This notice is issued under authority of 5 U.S.C. 552(a).
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency, 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 a revision of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning the Disaster Assistance Registration process.
Comments must be submitted on or before May 16, 2014.
To avoid duplicate submissions to the docket, please use only one of the following means to submit comments:
(1)
(2)
(3)
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Contact Elizabeth McDowell, Supervisory Program Specialist, FEMA, Recovery Directorate, at (540) 686-3630 for further information. You may contact the Records Management Division for copies of the proposed collection of information at facsimile number (202) 646-3347 or email address:
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Pub. L. 93-288) (the Stafford Act), as amended, is the legal basis for the Federal Emergency Management Agency (FEMA) to provide financial assistance and services to individuals who apply for disaster assistance benefits in the event of a federally declared disaster. Regulations in title 44 of the Code of Federal Regulations (CFR), Subpart D, “Federal Assistance to Individuals and Households,” implement the policy and procedures set forth in section 408 of the Stafford Act, 42 U.S.C. 5174, as amended. This program provides financial assistance and, if necessary, direct assistance to eligible individuals and households who, as a direct result of a major disaster or emergency, have uninsured or under-insured, damage, necessary expenses, and serious needs
Individuals and households may apply for assistance under the Individuals and Households program in person, via telephone or internet. FEMA utilizes paper forms 009-0-1 (English) Disaster Assistance Registration or FEMA Form 009-0-2 (Spanish), Solicitud/Registro Para Asistencia De Resastre to register individuals.
FEMA provides direct assistance to eligible applicants pursuant to the requirements in 44 CFR 206.117. To receive direct assistance for temporary housing (e.g., mobile home or other manufactured housing unit) from FEMA, the applicant is required to acknowledge and accept the conditions for occupying government property. The applicant is also required to acknowledge that he or she has been informed of the conditions for continued direct housing assistance. To accomplish these acknowledgments and notifications, FEMA uses the applicant's household composition data in National Emergency Management Information System to prepare a Manufactured Housing Unit Revocable License and Receipt for Government Property FEMA Form 009-0-5, or Las Casas Manufacturadas Unidad Licencia Revocable y Recibo de la Propiedad del Gobierno FEMA Form 009-0-6.
Federal public benefits are provided to U.S. citizens, non-citizen nationals, or qualified aliens. A parent or guardian of a minor child may be eligible for disaster assistance if, the minor child is a U.S. citizen, Non-citizen national or qualified alien and the minor child lives with the parent or guardian. (
By signing FEMA Forms 009-0-3, Declaration and Release or 009-0-4, Declaración Y Autorización an applicant or a member of the applicant's household is attesting to being a U.S. citizen, non-citizen national or qualified alien. A parent or guardian of a minor child signing FEMA Forms 009-0-3, Declaration and Release or 009-0-4, Declaración Y Autorización is attesting that the minor child is a U.S. citizen, non-citizen national or qualified alien.
Comments may be submitted as indicated in the
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of an emergency for the State of Georgia (FEMA-3368-EM), dated February 11, 2014, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-2833.
Notice is hereby given that, in a letter dated February 11, 2014, the President issued an emergency declaration under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I have determined that the emergency conditions in certain areas of the State of Georgia resulting from a severe winter storm beginning on February 10, 2014, and continuing are of sufficient severity and magnitude to warrant an emergency declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121
You are authorized to provide appropriate assistance for required emergency measures, authorized under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe in the designated areas. Specifically, you are authorized to provide assistance for emergency protective measures (Category B), limited to direct Federal assistance, under the Public Assistance program.
Consistent with the requirement that Federal assistance is supplemental, any Federal funds provided under the Stafford Act for Public Assistance will be limited to 75 percent of the total eligible costs. In order to provide Federal assistance, you are hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal emergency assistance and administrative expenses.
Further, you are authorized to make changes to this declaration for the approved assistance to the extent allowable under the Stafford Act.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, Department of Homeland Security, under Executive Order 12148, as amended, W. Michael Moore, of FEMA is appointed to act as the Federal Coordinating Officer for this declared emergency.
The following areas of the State of Georgia have been designated as adversely affected by this declared emergency:
Banks, Barrow, Bartow, Carroll, Catoosa, Chattooga, Cherokee, Clarke, Cobb, Dade, Dawson, DeKalb, Douglas, Elbert, Fannin, Floyd, Forsyth, Franklin, Fulton, Gilmer, Gordon, Gwinnett, Habersham, Hall, Haralson, Hart, Jackson, Lincoln, Lumpkin, Madison, Murray, Oconee, Oglethorpe, Paulding, Pickens, Polk, Rabun, Stephens, Towns, Union, Walker, Walton, White, Whitfield, and Wilkes Counties for emergency protective measures (Category B), limited to direct federal assistance, under the Public Assistance program.
Federal Emergency Management Agency, DHS.
Final notice.
New or modified Base (1% annual-chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or the regulatory floodway (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard determinations are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
These new or modified flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
These new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition,
Comments are to be submitted on or before June 16, 2014.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA-B-1366, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR Part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has ninety (90) days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency; DHS.
Notice; correction.
On September 23, 2013, FEMA published in the
Comments are to be submitted on or before June 16, 2014.
The Preliminary Flood Insurance Rate Map (FIRM), and where applicable, the Flood Insurance Study (FIS) report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA-B-1347, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064 or (email)
FEMA proposes to make flood hazard determinations for each community listed in the table below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP may only be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The communities affected by the flood hazard determinations are provided in the table below. Any request for reconsideration of the revised flood hazard determinations shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations will also be considered before the FIRM and FIS report are made final.
In the proposed flood hazard determination notice published at 78 FR 58338 in the September 23, 2013, issue of the
Federal Emergency Management Agency, DHS.
Notice of availability.
This document provides notice of the availability of the final Recovery Policy RP9525.4,
This policy is effective February 3, 2014.
This final policy is available online at
William Roche, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 202-646-3834, or via email at
This final policy identifies the extraordinary emergency medical care expenses that are eligible for reimbursement under the Category B, Emergency Protective Measures provisions of the Public Assistance Program following an emergency or major disaster declaration. This updated policy in section VIII.B(1)(c) adds labor costs for personnel activated and deployed to support the performance of eligible emergency work; in section VIII.B(1)(f) additional language is included to clarify the intent of providing post-disaster vaccinations; labor costs for permanent employees that are activated and deployed to support patient evacuation is an eligible expense in section VIII.C(1)(c); and section VIII.F addresses Mutual Aid and removes reference to public or private nonprofit providers working within their jurisdiction as ineligible mutual aid providers. Section VII.C(2)(c) which stated increased operating costs are ineligible and costs incurred in preparation for an increased patient load from an emergency or disaster are ineligible in section VII.F were removed from the previous version of the policy.
FEMA received three comments on the proposed policy one of which lead to a change to the final policy. The following sentence in Section VIII.F. of the draft policy was removed: “Public or private nonprofit medical service providers working within their jurisdiction do not qualify as mutual aid providers under DAP9523.6”.
This final policy does not have the force or effect of law.
42 U.S.C. 5121-5207, and implementing regulations of 44 CFR part 206.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of 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 the burden of the proposed collection of information; (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 information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapters 35.
Office of the General Counsel, HUD.
Notice.
Section 106 of the Department of Housing and Urban Development Reform Act of 1989 (the HUD Reform Act) requires HUD to publish quarterly
For general information about this notice, contact Camille E. Acevedo, Associate General Counsel for Legislation and Regulations, Department of Housing and Urban Development, 451 7th Street SW., Room 10282, Washington, DC 20410-0500, telephone 202-708-1793 (this is not a toll-free number). Persons with hearing- or speech-impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800-877-8339.
For information concerning a particular waiver that was granted and
Section 106 of the HUD Reform Act added a new section 7(q) to the Department of Housing and Urban Development Act (42 U.S.C. 3535(q)), which provides that:
1. Any waiver of a regulation must be in writing and must specify the grounds for approving the waiver;
2. Authority to approve a waiver of a regulation may be delegated by the Secretary only to an individual of Assistant Secretary or equivalent rank, and the person to whom authority to waive is delegated must also have authority to issue the particular regulation to be waived;
3. Not less than quarterly, the Secretary must notify the public of all waivers of regulations that HUD has approved, by publishing a notice in the
a. Identify the project, activity, or undertaking involved;
b. Describe the nature of the provision waived and the designation of the provision;
c. Indicate the name and title of the person who granted the waiver request;
d. Describe briefly the grounds for approval of the request; and
e. State how additional information about a particular waiver may be obtained.
Section 106 of the HUD Reform Act also contains requirements applicable to waivers of HUD handbook provisions that are not relevant to the purpose of this notice.
This notice follows procedures provided in HUD's Statement of Policy on Waiver of Regulations and Directives issued on April 22, 1991 (56 FR 16337). In accordance with those procedures and with the requirements of section 106 of the HUD Reform Act, waivers of regulations are granted by the Assistant Secretary with jurisdiction over the regulations for which a waiver was requested. In those cases in which a General Deputy Assistant Secretary granted the waiver, the General Deputy Assistant Secretary was serving in the absence of the Assistant Secretary in accordance with the office's Order of Succession.
This notice covers waivers of regulations granted by HUD from October 1, 2013 through December 31, 2013. For ease of reference, the waivers granted by HUD are listed by HUD program office (for example, the Office of Community Planning and Development, the Office of Fair Housing and Equal Opportunity, the Office of Housing, and the Office of Public and Indian Housing, etc.). Within each program office grouping, the waivers are listed sequentially by the regulatory section of title 24 of the Code of Federal Regulations (CFR) that is being waived. For example, a waiver of a provision in 24 CFR part 58 would be listed before a waiver of a provision in 24 CFR part 570.
Where more than one regulatory provision is involved in the grant of a particular waiver request, the action is listed under the section number of the first regulatory requirement that appears in 24 CFR and that is being waived. For example, a waiver of both § 58.73 and § 58.74 would appear sequentially in the listing under § 58.73.
Waiver of regulations that involve the same initial regulatory citation are in time sequence beginning with the earliest-dated regulatory waiver.
Should HUD receive additional information about waivers granted during the period covered by this report (the fourth quarter of calendar year 2013) before the next report is published (the first quarter of calendar year 2014), HUD will include any additional waivers granted for the third quarter in the next report.
Accordingly, information about approved waiver requests pertaining to HUD regulations is provided in the Appendix that follows this notice.
The regulatory waivers granted appear in the following order:
I. Regulatory waivers granted by the Office of Community Planning and Development.
II. Regulatory waivers granted by the Office of Housing.
III. Regulatory waivers granted by the Office of Public and Indian Housing.
For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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This waiver will apply to any Entitlement, Insular or Hawaii nonentitlement CDBG grantee whose program year start date for FY 2014 funding occurs during the period starting October 1, 2013, and ending August 16, 2014 or 60 days after HUD announcement of FY 2014 allocation amounts for formula program funding (whichever comes first). This waiver is available for use by any applicable CDBG grantee whose action plan submission is delayed past the normal submission date because of delayed enactment of FY 2014 appropriations for the Department. This waiver authority is only in effect until August 16, 2014.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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For further information about the following regulatory waivers, please see the name of the contact person that immediately follows the description of the waiver granted.
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Fish and Wildlife Service, Interior.
Notice of availability; request for comments.
We, the U.S. Fish and Wildlife Service (Service), have received an application from Sweetwater Authority (applicant) for a 5-year incidental take permit for one covered species pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of the endangered San Diego fairy shrimp associated with the proposed use of an established hiking, biking, and equestrian trail near the Sweetwater Reservoir in unincorporated San Diego County, California. A conservation program to avoid, minimize, and mitigate for the project activities would be implemented as described in the proposed Sweetwater Riding and Hiking Trail Low-Effect Habitat Conservation Plan (proposed HCP), which would be implemented by the applicant.
We are requesting comments on the permit application and on the preliminary determination that the proposed HCP qualifies as a “low-effect” Habitat Conservation Plan, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. The basis for this determination is discussed in the Environmental Action Statement (EAS) and the associated Low Effect Screening Form, which are also available for public review.
Written comments should be received on or before April 16, 2014.
Comments should be addressed to the Field Supervisor, Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250, Carlsbad, CA 92008. Written comments may also be sent by facsimile to 760-431-9624.
Ms. Karen Goebel, Assistant Field Supervisor, Carlsbad Fish and Wildlife Office (see
Individuals wishing for copies of the application, proposed HCP, and EAS should contact the Service immediately, by telephone at 760-431-9440 or by letter to the Carlsbad Fish and Wildlife Office. Copies of the proposed HCP and EAS also are available for public inspection during regular business hours at the Carlsbad Fish and Wildlife Office (see
Section 9 of the Act and its implementing Federal regulations prohibit the take of animal species listed as endangered or threatened. Take is defined under the Act as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or to attempt to engage in such conduct (16 U.S.C. 1538). However, under section 10(a) of the Act, the Service may issue permits to authorize incidental take of listed species.
In December 2013, the applicant closed a segment of a San Diego County regional recreational trail system due to the discovery of the San Diego fairy shrimp (
The trail segment provides an important connection within a popular regional trail system, and continued closure of the trail will likely result in creation of unsanctioned alternate trails with unpredictable impacts to natural resources. We anticipate minor impacts to San Diego fairy shrimp within up to 145 square feet of the pools due to the effects of shading from the bridges and possible loss of individual San Diego fairy shrimp cysts due to trail maintenance. Although the project site is surrounded by occupied habitat for several federally threatened and endangered species, there are no other listed species specifically within the project alignment. Critical habitat for Otay tarplant (
The Sweetwater Authority proposes to mitigate impacts to the San Diego fairy shrimp through efforts that have resulted in the restoration of 290 square feet of vernal pool habitat occupied by San Diego fairy shrimp and are permanently protected and managed.
The Proposed Action consists of the issuance of an incidental take permit and implementation of the proposed HCP, which includes measures to avoid, minimize, and mitigate impacts to the San Diego fairy shrimp. Four alternatives to the taking of the listed species under the Proposed Action are considered in the proposed HCP. Under the Permanent Trail Closure (No Action) Alternative, no authorized incidental take of San Diego fairy shrimp would occur; however, it is likely that unsanctioned alternate trail use would occur that would result in more impacts than under the Proposed Action, and recreational opportunities would be substantially reduced. Under the Minor Trail Deviation Alternative, immediate impacts to San Diego fairy shrimp would be avoided by moving the trail away from existing pools, but trail use would likely result in new depressions that could eventually be colonized by San Diego fairy shrimp and subsequently be impacted. Under the Different Location Alternative, the trail would be routed elsewhere to prevent additional impacts; however, planning and permitting this alternative will take up to 5 years, during which time recreational opportunities would be substantially reduced and alternative unsanctioned trail use would likely occur. Under the Reconstruction of the Existing Trail Segment Alternative, existing pools within the trail segment would be recontoured and/or filled to prevent San Diego fairy shrimp from developing within the pools, thereby reducing ongoing incidental take. However, this alternative would result in greater impacts to the species and require additional regulatory permitting.
The Service has made a preliminary determination that approval of the proposed HCP qualifies as a categorical exclusion under NEPA, as provided by the Department of the Interior Manual (516 DM 2 Appendix 1 and 516 DM 6 Appendix 1) and as a “low-effect” plan as defined by the
We base our determination that a HCP qualifies as a low-effect plan on the following three criteria:
(1) Implementation of the HCP would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats;
(2) Implementation of the HCP would result in minor or negligible effects on other environmental values or resources; and
(3) Impacts of the HCP, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant.
Based upon this preliminary determination, we do not intend to prepare further NEPA documentation. We will consider public comments in making the final determination on whether to prepare such additional documentation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
We provide this notice under section 10 of the Act (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice.
The Bureau of Land Management (BLM) Southern Nevada District is seeking expressions of interest in proposing projects for utility-scale solar energy development on approximately 5,717 acres of public land identified as the Dry Lake Solar Energy Zone (SEZ) in Clark County, Nevada.
Parties interested in proposing a solar energy project on the lands described in this notice should do so by April 16, 2014.
Submissions should be sent to the Bureau of Land Management, Attention: Greg Helseth, Renewable Energy Project Manager, 4701 North Torrey Pines Drive, Las Vegas, NV 89130-2301. Electronic submissions will not be accepted.
Greg Helseth, Renewable Energy Project Manager, by telephone at 702-515-5173; or by email at
The Dry Lake SEZ is approximately 25 miles northeast of Las Vegas, Nevada, in an undeveloped rural area. The nearest major roads accessing the Dry Lake SEZ are I-15, which runs along the southeastern border of the SEZ, and U.S. 93, which runs along the southwestern border of the SEZ. The subject public lands are described as:
The area described contains an aggregate of 6,160 acres, more or less, in Clark County, Nevada.
During the development of the Solar Energy Programmatic Environmental Impact Statement (EIS) and Record of Decision (ROD), the BLM identified 469 acres of floodplain and wetland as non-development areas within the Dry Lake SEZ, leaving 5,717 acres within the SEZ as available for development. A map of the SEZ can be viewed and downloaded at:
The request for interest follows a 2-year planning effort on the public lands as part of the Solar Energy Programmatic EIS and ROD. On October 12, 2012, the Secretary of the Interior signed the ROD, which amended 89 resource management plans. The Solar Energy Programmatic EIS and ROD provide a road map for utility-scale solar energy development on public lands. Public comments were received during the draft, supplemental, and final Programmatic EIS process. While the ROD does not authorize any solar energy development projects or eliminate the need for site-specific environmental review for future utility-scale projects, the Dry Lake SEZ was identified by the BLM under the Solar Energy Programmatic EIS and ROD as one of the areas as best suited for solar energy development because of fewer potential resource conflicts than other areas on the public land. The Solar Energy Programmatic EIS also will help streamline site-specific environmental analysis for future proposed projects in the Dry Lake SEZ. This notice also announces the release of the “Solar Regional Mitigation Strategy for the Dry Lake Solar Energy Zone” that describes off-site mitigation costs that will be required for the development of future solar energy projects in the Dry Lake SEZ. The Mitigation Strategy is available online at h
Two designated transmission corridors pass through the Dry Lake SEZ. These corridors have numerous natural gas, petroleum product, and electric transmission lines, including a 500-kV transmission line.
Parties interested in proposing a solar energy development project in the Dry Lake SEZ, or portion of the Dry Lake SEZ, should submit a letter of interest and a preliminary right-of-way (ROW) application (SF-299) to the address in the
The BLM Southern Nevada District has one ROW application within the Dry Lake (SEZ) serialized as NVN-084232. Applications for solar energy development are processed as ROW authorizations under Title V of the Federal Land Policy and Management Act of 1976. The regulations at 43 CFR 2804.23 authorize the BLM to determine whether competition exists among ROW applications filed for the same area. The regulations also allow the BLM to resolve any such competition by using competitive bidding procedures.
The BLM will review submissions from interested parties in response to this notice and determine whether competition exists to develop solar energy projects in the Dry Lake SEZ. If the BLM determines sufficient competition exists, the BLM may use a competitive bidding process, consistent with the regulations, to select a preferred applicant in the Dry Lake SEZ.
43 CFR 2804.23.
Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for sixty (60) days until May 16, 2014.
If you have comments, especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Jeff Rosenblum, General Counsel, Executive Office for Immigration Review, U.S. Department of Justice, Suite 2600, 5107 Leesburg Pike, Falls Church, Virginia, 20530; telephone: (703) 305-0470.
This process is conducted in accordance with
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, U.S. Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3W-1407B, Washington, DC 20530.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against Nally & Hamilton Enterprises, Inc., pursuant to Section 309 of the Clean Water Act, 33 U.S.C. 1319, to obtain injunctive relief from and impose civil penalties against the Defendant for violating the Clean Water Act by discharging pollutants without a permit into waters of the United States. The proposed Consent Decree resolves these allegations by requiring the Defendant to restore the impacted areas and perform mitigation and to pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Leslie M. Hill, United States Department of Justice, Environment and Natural Resources Division, Post Office Box 7611, Washington, DC 20044-7611 and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Eastern District of Kentucky, 35 West 5th Street, Covington, Kentucky 41012. In addition, the proposed Consent Decree may be examined electronically at
On March 10, 2014, the Department of Justice lodged a proposed modification to a Consent Decree with the United States District Court for the Western District of Wisconsin in the lawsuit entitled
The original Consent Decree resolved Clean Air Act New Source Review and Title V violations at two coal-fired power plants owned and operated by Dairyland Power Cooperative (“DPC”).
The publication of this notice opens a period for public comment on the proposed modification to the Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed modification to the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $5.00 (25 cents per page reproduction cost) payable to the United States Treasury.
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 date following the company name and location of each determination references the impact date for all workers of such determination.
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.
In the following cases, the investigation revealed that the eligibility
Because the workers of the firm are not eligible to apply for TAA, the workers cannot be certified eligible for ATAA.
The workers' firm does not produce an article as required for certification under Section 222 of the Trade Act of 1974.
After notice of the petitions was published in the
The following determinations terminating investigations were issued because the petitioner has requested that the petition be withdrawn.
The following determinations terminating investigations were issued because the petitioning groups of workers are covered by active certifications. Consequently, further investigation in these cases would serve no purpose since the petitioning group of workers cannot be covered by more than one certification at a time.
I hereby certify that the aforementioned determinations were issued during the period of
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 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. Under Section 222(a)(2)(A), the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the sales or production, or both, of such firm have decreased absolutely; and
(3) One of the following must be satisfied:
(A) imports of articles or services like or directly competitive with articles produced or services supplied by such firm have increased;
(B) imports of articles like or directly competitive with articles into which one or more component parts produced by such firm are directly incorporated, have increased;
(C) imports of articles directly incorporating one or more component parts produced outside the United States that are like or directly competitive with imports of articles incorporating one or more component parts produced by such firm have increased;
(D) imports of articles like or directly competitive with articles which are produced directly using services supplied by such firm, have increased; and
(4) the increase in imports contributed importantly to such workers' separation or threat of separation and to the decline in the sales or production of such firm; or
II. Section 222(a)(2)(B) all of the following must be satisfied:
(1) A significant number or proportion of the workers in such workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) One of the following must be satisfied:
(A) There has been a shift by the workers' firm to a foreign country in the production of articles or supply of services like or directly competitive with those produced/supplied by the workers' firm;
(B) there has been an acquisition from a foreign country by the workers' firm of articles/services that are like or directly competitive with those produced/supplied by the workers' firm; and
(3) the shift/acquisition contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in public agencies 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) A significant number or proportion of the workers in the public agency have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the public agency has acquired from a foreign country services like or directly competitive with services which are supplied by such agency; and
(3) the acquisition of services contributed importantly to such workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected secondary 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(c) of the Act must be met.
(1) A significant number or proportion of the workers in the workers' firm have become totally or partially separated, or are threatened to become totally or partially separated;
(2) the workers' firm is a Supplier or Downstream Producer to a firm that employed a group of workers who received a certification of eligibility under Section 222(a) of the Act, and such supply or production is related to the article or service that was the basis for such certification; and
(3) either—
(A) The workers' firm is a supplier and the component parts it supplied to the firm described in paragraph (2) accounted for at least 20 percent of the production or sales of the workers' firm; or
(B) a loss of business by the workers' firm with the firm described in paragraph (2) contributed importantly to the workers' separation or threat of separation.
In order for an affirmative determination to be made for adversely affected workers in firms identified by the International Trade Commission and a certification issued regarding eligibility to apply for worker adjustment assistance, each of the group eligibility requirements of Section 222(f) of the Act must be met.
(1) The workers' firm is publicly identified by name by the International Trade Commission as a member of a domestic industry in an investigation resulting in—
(A) an affirmative determination of serious injury or threat thereof under section 202(b)(1);
(B) an affirmative determination of market disruption or threat thereof under section 421(b)(1); or
(C) an affirmative final determination of material injury or threat thereof under section 705(b)(1)(A) or 735(b)(1)(A) of the Tariff Act of 1930 (19 U.S.C. 1671d(b)(1)(A) and 1673d(b)(1)(A));
(2) the petition is filed during the 1-year period beginning on the date on which—
(A) A summary of the report submitted to the President by the International Trade Commission under section 202(f)(1) with respect to the affirmative determination described in paragraph (1)(A) is published in the
(B) notice of an affirmative determination described in subparagraph (1) is published in the
(3) the workers have become totally or partially separated from the workers' firm within—
(A) The 1-year period described in paragraph (2); or
(B) notwithstanding section 223(b)(1), the 1-year period preceding the 1-year period described in paragraph (2).
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 or services) of the Trade Act have been met.
In the following cases, the investigation revealed that the eligibility criteria for worker adjustment assistance have not been met for the reasons specified.
The investigation revealed that the criterion under paragraph (a)(1), or (b)(1), or (c)(1) (employment decline or threat of separation) of section 222 has not been met.
The investigation revealed that the criteria under paragraphs (a)(2)(A) (increased imports) and (a)(2)(B) (shift in production or services to a foreign country) of section 222 have not been met.
I hereby certify that the aforementioned determinations were issued during the period of
Petitions have been filed with the Secretary of Labor under Section 221(a) of the Trade Act of 1974 (“the Act”) and are identified in the Appendix to this notice. Upon receipt of these petitions, the Director of the Office of Trade Adjustment Assistance, Employment and Training Administration, has instituted investigations pursuant to Section 221(a) of the Act.
The purpose of each of the investigations is to determine whether the workers are eligible to apply for adjustment assistance under Title II, Chapter 2, of the Act. The investigations will further relate, as appropriate, to the determination of the date on which total or partial separations began or threatened to begin and the subdivision of the firm involved.
The petitioners or any other persons showing a substantial interest in the subject matter of the investigations may request a public hearing, provided such request is filed in writing with the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 27, 2014.
Interested persons are invited to submit written comments regarding the subject matter of the investigations to the Director, Office of Trade Adjustment Assistance, at the address shown below, not later than March 27, 2014.
The petitions filed in this case are available for inspection at the Office of the Director, Office of Trade Adjustment Assistance, Employment and Training Administration, U.S. Department of Labor, Room N-5428, 200 Constitution Avenue NW., Washington, DC 20210.
Copyright Office, Library of Congress.
Notice of Inquiry.
The United States Copyright Office announces the initiation of a study to evaluate the effectiveness of existing methods of licensing music. To aid this effort, the Office is seeking public input on this topic. The Office will use the information it gathers to report to Congress. Congress is currently conducting a review of the U.S. Copyright Act, 17 U.S.C. 101
Written comments are due on or before May 16, 2014. The Office will be announcing one or more public meetings to address music licensing issues, to take place after written comments are received, by separate notice in the future.
All comments shall be submitted electronically. A comment page containing a comment form is posted on the Office Web site at
Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, by email at
Congress is currently engaged in a comprehensive review of the U.S. Copyright Act, 17 U.S.C. 101
Music is more available now than it has ever been. Today, music is delivered to consumers not only in physical formats, such as compact discs and vinyl records, but is available on demand, both by download and streaming, as well as through smartphones, computers, and other devices. At the same time, the public continues to consume music through terrestrial and satellite radio, and more recently, internet-based radio. Music continues to enhance films, television, and advertising, and is a key component of many apps and video games.
Such uses of music require licenses from copyright owners. The mechanisms for obtaining such licenses are largely shaped by our copyright law, including the statutory licenses under Sections 112, 114, and 115 of the Copyright Act, which provide government-regulated licensing regimes for certain uses of sound recordings and musical works.
A musical recording encompasses two distinct works of authorship: The musical work, which is the underlying composition created by the songwriter or composer, along with any accompanying lyrics; and the sound recording, that is, the particular performance of the musical work that has been fixed in a recording medium such as CD or digital file. The methods for obtaining licenses differ with respect to these two types of works, which can be—and frequently are—owned or managed by different entities. Songwriters and composers often assign rights in their musical works to music publishers and, in addition, affiliate themselves with performing rights organizations (“PROs”). These intermediaries, in turn, assume responsibility for licensing the works. By contrast, the licensing of sound recordings is typically handled directly by record labels, except in the case of certain types of digital uses, as described below.
The right to make and distribute phonorecords of musical works (often referred to as the “mechanical” right) is subject to a compulsory statutory license under Section 115 of the Act.
In 1995, Congress confirmed that a copyright owner's exclusive right to reproduce and distribute phonorecords of a musical work, and the Section 115 license, extend to the making of “digital phonorecord deliveries” (“DPDs”)—that is, the transmission of digital files embodying musical works.
Licenses under Section 115 are obtained on a song-by-song basis. Because a typical online music service needs to offer access to millions of songs to compete in the marketplace, obtaining the licenses on an individual basis can present administrative challenges.
The royalty rates and terms for the Section 115 license are established by an administrative tribunal—the Copyright Royalty Board (“CRB”)
The Section 115 license applies to audio-only reproductions that are primarily made and distributed for private use.
Unlike the mechanical right, the public performance of musical works is not subject to compulsory licensing under the Copyright Act. Since 1941, however, ASCAP and BMI's licensing practices have been subject to antitrust consent decrees overseen by the Department of Justice.
The two PRO consent decrees were last amended well before the proliferation of digital music: The BMI decree in 1994,
The owner of a copyright in a sound recording fixed on or after February 15, 1972, like the owner of a musical work copyright, enjoys the exclusive right to reproduce and distribute phonorecords embodying the sound recording, including by means of digital transmission, and to authorize others to do the same. 17 U.S.C. 106(1), (3), 301(c). Except in the limited circumstances where statutory licensing applies, as described below, licenses to reproduce and distribute sound recordings—such as those necessary to make and distribute CDs, transmit DPDs, and operate online music services, as well as to use sound recordings in a television shows, films, video games, etc.—are negotiated directly between the licensee and sound recording owner (typically a record label). Thus, while in the case of musical works, the royalty rates and terms applicable to the making and distribution of CDs, DPDs, and the operation of interactive music services are subject to government oversight, with respect to sound recordings, licensing for those same uses takes place without government supervision.
For certain uses, including those by satellite and internet radio, the digital public performance right for sound recordings is subject to statutory licensing in accordance with Sections 112 and 114 of the Act. Section 112 provides for a license to reproduce the phonorecords (sometimes referred to as “ephemeral recordings”) necessary to facilitate a service's transmissions to subscribers, while Section 114 licenses the public performances of sound recordings resulting from those transmissions. This statutory licensing framework applies only to noninteractive (
The rates and terms applicable to the public performance of sound recordings under the Section 112 and 114 licenses are established by the CRB.
Notably, under Section 114, the rate standard applicable to those satellite radio and music subscription services that existed as of July 31, 1998 (
For all types of services eligible for a Section 114 statutory license, the rates for the phonorecords (ephemeral recordings) used to operate the service are to be established by the CRB under Section 112 according to a “willing buyer/willing seller” standard. 17 U.S.C. 112(e). In general, the Section 112 rates have been a relatively insignificant part of the CRB's ratesetting proceedings, and have been established as a subset of the 114 rate.
The Copyright Office seeks public input on the effectiveness of the current methods for licensing musical works and sound recordings. Accordingly, the Office invites written comments on the specific subjects above. A party choosing to respond to this Notice of Inquiry need not address every subject, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted.
1. Please assess the current need for and effectiveness of the Section 115 statutory license for the reproduction and distribution of musical works.
2. Please assess the effectiveness of the royalty ratesetting process and standards under Section 115.
3. Would the music marketplace benefit if the Section 115 license were updated to permit licensing of musical works on a blanket basis by one or more collective licensing entities, rather than on a song-by-song basis? If so, what would be the key elements of any such system?
4. For uses under the Section 115 statutory license that also require a public performance license, could the licensing process be facilitated by enabling the licensing of performance rights along with reproduction and distribution rights in a unified manner? How might such a unified process be effectuated?
5. Please assess the effectiveness of the current process for licensing the public performances of musical works.
6. Please assess the effectiveness of the royalty ratesetting process and standards applicable under the consent decrees governing ASCAP and BMI, as well as the impact, if any, of 17 U.S.C. 114(i), which provides that “[l]icense fees payable for the public performance of sound recordings under Section 106(6) shall not be taken into account in any administrative, judicial, or other governmental proceeding to set or adjust the royalties payable to copyright owners of musical works for the public performance of their works.”
7. Are the consent decrees serving their intended purpose? Are the concerns that motivated the entry of these decrees still present given modern market conditions and legal developments? Are there alternatives that might be adopted?
8. Please assess the current need for and effectiveness of the Section 112 and Section 114 statutory licensing process.
9. Please assess the effectiveness of the royalty ratesetting process and standards applicable to the various types of services subject to statutory licensing under Section 114.
10. Do any recent developments suggest that the music marketplace might benefit by extending federal copyright protection to pre-1972 sound recordings? Are there reasons to continue to withhold such protection? Should pre-1972 sound recordings be included within the Section 112 and 114 statutory licenses?
11. Is the distinction between interactive and noninteractive services adequately defined for purposes of eligibility for the Section 114 license?
12. What is the impact of the varying ratesetting standards applicable to the Section 112, 114, and 115 statutory licenses, including across different music delivery platforms. Do these differences make sense?
13. How do differences in the applicability of the sound recording
14. How prevalent is direct licensing by musical work owners in lieu of licensing through a common agent or PRO? How does direct licensing impact the music marketplace, including the major record labels and music publishers, smaller entities, individual creators, and licensees?
15. Could the government play a role in encouraging the development of alternative licensing models, such as micro-licensing platforms? If so, how and for what types of uses?
16. In general, what innovations have been or are being developed by copyright owners and users to make the process of music licensing more effective?
17. Would the music marketplace benefit from modifying the scope of the existing statutory licenses?
18. How have developments in the music marketplace affected the income of songwriters, composers, and recording artists?
19. Are revenues attributable to the performance and sale of music fairly divided between creators and distributors of musical works and sound recordings?
20. In what ways are investment decisions by creators, music publishers, and record labels, including the investment in the development of new projects and talent, impacted by music licensing issues?
21. How do licensing concerns impact the ability to invest in new distribution models?
22. Are there ways the federal government could encourage the adoption of universal standards for the identification of musical works and sound recordings to facilitate the music licensing process?
23. Please supply or identify data or economic studies that measure or quantify the effect of technological or other developments on the music licensing marketplace, including the revenues attributable to the consumption of music in different formats and through different distribution channels, and the income earned by copyright owners.
24. Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before April 16, 2014. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepares appraisal memoranda that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments on the schedule.
You may request a copy of any records schedule identified in this notice by contacting Records Management Services (ACNR) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Margaret Hawkins, Director, Records Management Services (ACNR), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001. Telephone: 301-837-1799. Email:
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media-neutral unless specified otherwise. An item in a schedule is media-neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media-neutral unless the item is specifically limited to a specific medium. (See 36 CFR 1225.12(e).)
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an
1. Department of Agriculture, Rural Development (N1-572-12-2, 6 items, 5 temporary items). Records related to program accounting and regulatory analysis of loans and mortgages, including correspondence and audit reports. Proposed for permanent retention are regulatory guidance records.
2. Department of Agriculture, Rural Development (N1-572-12-3, 14 items, 14 temporary items). Records related to policy analysis and risk management for debt restructuring loans, including studies, correspondence, audit reports, agreements, bankruptcy court plans, and analysis reports.
3. Department of Defense, National Security Agency (N1-457-13-1, 9 items, 3 temporary items). Records of the Information Assurance Directorate, including administrative manuals, administrative guidance, and non-significant working papers. Proposed for permanent retention are formal published standards, criteria, designs, specifications, memorandums, reports, and agreements.
4. Department of Health and Human Services, Indian Health Service (DAA-0513-2014-0001, 2 items, 2 temporary items). Medical staff credentialing and privileging records.
5. Department of Justice, Federal Bureau of Investigation (DAA-0065-2013-0002, 2 items, 2 temporary items). Non-record and transitory electronic mail messages.
6. Department of Justice, Office of Professional Responsibility (DAA-0060-2011-0027, 6 items, 3 temporary items). Records of misconduct allegations that include non-significant inquiries and investigations, and referrals to state bar and judicial authorities. Proposed for permanent retention are significant inquiries and investigations, whistleblower matters, and deputy counsel files.
7. Department of State, Bureau of Information and Resource Management (DAA-0059-2014-0002, 1 item, 1 temporary item). Master files of an electronic information system containing requests for routine administrative services.
8. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (DAA-0564-2013-0003, 81 items, 79 temporary items). Records include tax files, project plans, studies, applications, permits, and related correspondence. Proposed for permanent retention are directives, policies, organizational data, and reports.
9. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (DAA-0564-2013-0004, 8 items, 7 temporary items). Records of the Office of Chief Counsel including financial transaction files, legislative files, ethics records, memorandums, and general legal correspondence. Proposed for permanent retention are significant litigation files.
10. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (DAA-0564-2013-0005, 50 items, 44 temporary items). Records include training files, financial records, certificate and testing reports, applications, product files, and related records. Proposed for permanent retention are trade and negotiation agreements, historical and opinion files, and regulations files.
11. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (DAA-0564-2013-0008, 9 items, 4 temporary items). Congressional liaison files, routine correspondence, and related records. Proposed for permanent retention are policies, briefing books, high-level speeches, press releases, and congressional correspondence files.
12. Department of the Treasury, Alcohol and Tobacco Tax and Trade Bureau (DAA-0564-2013-0009, 2 items, 2 temporary items). Master files of an electronic information system used to process application and permit files.
13. Department of the Treasury, Internal Revenue Service (DAA-0058-2013-0013, 5 items, 5 temporary items). Records relating to taxpayer and employee privacy protection including incident case files, project files, and meeting summaries.
14. Department of the Treasury, Internal Revenue Service (DAA-0058-2013-0015, 2 items, 2 temporary items). Complaint case files relating to tax return preparer violations.
15. Consumer Financial Protection Bureau, Office of Consumer Response (DAA-0587-2014-0004, 1 item, 1 temporary item). Records of consumer complaints relating to financial institutions.
16. Court Services and Offenders Supervision Agency for the District of Columbia, Agency-wide (DAA-0562-2013-0010, 1 item, 1 temporary item). Master files of an electronic information system used to administer and track employee training courses, learning materials, and related data.
17. Export-Import Bank of the United States, Agency-wide (DAA-0275-2014-0001, 14 items, 9 temporary items). Records include drafts, marketing documents, credit reviews, insurance and pre-approval documents, agreements for financial services, and routine court documents. Proposed for permanent retention are significant policy and communication records including testimony, speeches, and reports.
18. National Archives and Records Administration, Government-wide (DAA-GRS-2013-0005, 8 items, 7 temporary items). General Records Schedule for records related to technology management, including records related to developing, operating, and maintaining computer software, systems, and infrastructure improvements; complying with information technology policies and plans; and maintaining data standards. Proposed for permanent retention is documentation related to electronic records that have been scheduled as permanent.
19. Office of the Director of National Intelligence, Front Office (N1-576-11-2, 10 items, 3 temporary items). Records include routine financial documents. Proposed for permanent retention are the files of senior leadership, including speeches, correspondence, and briefing books, and principal financial records.
20. Office of the Director of National Intelligence, Intelligence Advanced Research Projects Activity (N1-576-12-2, 15 items, 9 temporary items). Records include files related to routine decisions and events, outreach information, initial research studies, reference materials, interim reports, and non-substantive drafts and working papers. Proposed for permanent retention are files of senior officials, organization and management records, unique events records, program budget planning records, substantive working papers, and research program files.
21. Office of the Director of National Intelligence, Mission Support Division (N1-576-12-1, 17 items, 13 temporary items). Records include preliminary drafts and non-substantive working papers, internal special project and program records, insider threat case files, and routine administrative files.
22. Office of the Director of National Intelligence, Office of the Inspector General (N1-576-11-11, 18 items, 9 temporary items). Records include routine case files and those which did not warrant investigation, annual award program records, reference files, and non-substantive working papers and drafts. Proposed for permanent retention are program files of the Inspector General; investigations, inspections, and audit reports; annual reports; community-level board and working group records; and substantive working papers and drafts.
23. Social Security Administration, Office of the Chief Actuary (DAA-0047-2013-0001, 15 items, 10 temporary items). Records of the Offices of Short Range and Long Range Estimates, including non-significant working, background, reference, and summary files. Proposed for permanent retention are legislation analysis records, significant background files, final reports, and actuarial studies.
10 a.m., Thursday, March 20, 2014.
Board Room, 7th Floor, Room 7047, 1775 Duke Street (All visitors must use Diagonal Road Entrance), Alexandria, VA 22314-3428.
Open.
10:30 a.m.
10:45 a.m., Thursday, March 20, 2014.
Board Room, 7th Floor, Room 7047, 1775 Duke Street, Alexandria, VA 22314-3428.
Closed.
Gerard Poliquin, Secretary of the Board, Telephone: 703-518-6304.
National Endowment for the Humanities.
Notice of Meetings.
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.), notice is hereby given that nineteen meetings of the Humanities Panel will be held during April 2014 as follows. The purpose of the meetings is for panel review, discussion, evaluation, and recommendation of applications for financial assistance under the National Foundation on the Arts and Humanities Act of 1965 (20 U.S.C. 951-960, as amended).
See
The meetings will be held at the Old Post Office Building, 1100 Pennsylvania Ave. NW., Washington, DC 20506. See
Lisette Voyatzis, Committee Management Officer, 1100 Pennsylvania Ave. NW., Room, 529, Washington, DC 20506, or call (202) 606-8322. Hearing-impaired individuals are advised that information on this matter may be obtained by contacting the National Endowment for the Humanities' TDD terminal at (202) 606-8282.
This meeting will discuss applications on the subject of Literature for the Scholarly Editions and Translations grant program, submitted to the division of Research Programs.
This meeting will discuss applications on the subject of History for the Media Projects: Production Grants program, submitted to the division of Public Programs.
This meeting will discuss applications on the subject of Cultural History/American Studies for the Media Projects: Production Grants program, submitted to the division of Public Programs.
This meeting will discuss applications on the subject of History for the Scholarly Editions and Translations grant program, submitted to the division of Research Programs.
This meeting will discuss applications for the Sustaining Cultural Heritage Collections grant program, submitted to the division of Preservation and Access.
This meeting will discuss applications for the Sustaining Cultural Heritage Collections grant program, submitted to the division of Preservation and Access.
This meeting will discuss applications on the subject of Art History for the Museums, Libraries, and Cultural Organizations: Implementation Grants program, submitted to the division of Public Programs.
This meeting will discuss applications on the subject of Arts and Literature for the Scholarly Editions and Translations grant program, submitted to the division of Research Programs.
This meeting will discuss applications on the subject of History and Culture for the Museums, Libraries, and Cultural Organizations Implementation grant program, submitted to the division of Public Programs.
This meeting will discuss applications on the subject of History for the Media Projects: Production Grants program, submitted to the division of Public Programs.
This meeting will discuss applications on the subject of Philosophy and Religion for the Scholarly Editions and Translations grant program, submitted to the division of Research Programs.
This meeting will discuss applications on the subject of History and Literature for the Scholarly Editions and Translations grant program, submitted to the division of Research Programs.
This meeting will discuss applications on the subject of World History and Culture for the Museums, Libraries, and Cultural Organizations: Implementation Grants program, submitted to the division of Public Programs.
This meeting will discuss applications for the Landmarks of American History and Culture: Workshops for School Teachers grant program, submitted to the division of Education Programs.
This meeting will discuss applications for the Landmarks of American History and Culture: Workshops for School Teachers grant program, submitted to the division of Education Programs.
This meeting will discuss applications for the Landmarks of American History and Culture: Workshops for School Teachers grant program, submitted to the division of Education Programs.
This meeting will discuss applications for the Landmarks of American History and Culture: Workshops for School Teachers grant program, submitted to the division of Education Programs.
This meeting will discuss applications for the National Digital Newspaper Program grant program, submitted to the division of Preservation and Access.
This meeting will discuss applications on the subject of History and Culture for the Museums, Libraries, and Cultural Organizations: Implementation Grants program, submitted to the division of Public Programs.
Because these meetings will include review of personal and/or proprietary financial and commercial information given in confidence to the agency by grant applicants, the meetings will be closed to the public pursuant to sections 552b(c)(4) and 552b(c)(6) of Title 5, U.S.C., as amended. I have made this determination pursuant to the authority granted me by the Chairman's Delegation of Authority to Close Advisory Committee Meetings dated July 19, 1993.
National Mediation Board.
Notice.
The National Mediation Board (NMB) invites comments on its proposal to revise a previously-approved information collection request as required by the Paperwork Reduction Act of 1995. In December of 2012, in response to amendments to the Railway Labor Act, the NMB published a Final Rule changing the showing of interest requirements for organizations seeking a representation election. As a result, the NMB is revising the Application for Investigation of Representation Dispute to reflect that all applicants must submit the same showing of interest. In addition, the NMB is revising the application by requiring applicants to attest that all of the information submitted is true to the best of the signer's knowledge. The revised application will also only provide space for one craft or class per application, thereby requiring a separate application for each craft or class.
Interested persons are invited to submit comments on or before May 16, 2014.
Section 3506 of the Paperwork Reduction Act of 1995 (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 Director, Office of Administration, publishes that notice containing proposed information collection requests prior to submission of these requests to OMB. Each proposed information collection 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 Record keeping burden. OMB invites public comment.
The revisions to the Application for Investigation of Representation Dispute include the following:
1. The application will reflect the fact that applicants no longer have the option of submitting an application supported by a 35 percent showing of interest. All applicants will be required to indicate that the application is supported by a 50 percent showing of interest. In response to 2012 amendments to the Railway Labor Act, the NMB published a Final Rule on December 21, 2012 reflecting the changed showing of interest requirements. 29 CFR 1206.2. This revision will not change the burden to the applicant in completing the form.
2. The application will include the following attestation: “Federal Law prohibits knowingly and willfully making materially false, fictitious, or fraudulent statements or representations in any matter within the jurisdiction of the U.S. Government. 18 U.S.C. 1001. This includes the information provided on this application as well as the accompanying showing of interest.”
3. The revised application will require applicants to complete a separate application for each craft or class. Applicants rarely list more than one established craft or class on each application. This revision should not have an impact on the burden to applicants or increase the number of applications received by the NMB.
Currently, the NMB is soliciting comments concerning the proposed revisions of the Application for Investigation of Representation Dispute and is interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the agency; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the agency enhance the quality, utility, and clarity of the information to be collected; and (5) how might the agency minimize the burden of this collection on the respondents, including through the use of information technology.
In addition, the NMB requests comments on any substantive and legal issues raised by the changes to the Application for Investigation of Representation Dispute discussed above, especially those raised by the inclusion of the attestation of the truthfulness of the information provided.
Reporting and Recordkeeping Hour Burden:
1.
2. The application form provides necessary information to the NMB so that it can determine the amount of staff and resources required to conduct an investigation and fulfill its statutory responsibilities. Without this information, the NMB would have to delay the commencement of the investigation, which is contrary to the intent of the Railway Labor Act.
3. There is no improved technological method for obtaining this information. The burden on the parties is minimal in completing the “Application for Investigation of Representation Dispute.”
4. There is no duplication in obtaining this information.
5. Rarely are representation elections conducted for small businesses. Carriers/employers are not permitted to request our services regarding representation investigations. The labor organizations, which are the typical requesters, are national in scope and would not qualify as small businesses. Even in situations where the invocation comes from a small labor organization, we believe the burden in completing the application form is minimal and that no reduction in burden could be made.
6. The NMB is required by Section 2, Ninth, to investigate the dispute, to determine who is the authorized representative, if any, and to certify such representative. The NMB has no ability to control the frequency, technical, or legal obstacles, which would reduce the burden.
7. The information requested by the NMB is consistent with the general information collection guidelines of CFR 1320.6. The NMB has no ability to control the data provided or timing of the invocation. The burden on the parties is minimal in completing the “Application for Investigation of Representation Dispute.”
8. No payments or gifts have been provided by the NMB to any respondents of the form.
9. There are no questions of a sensitive nature on the form.
10. The total time burden on respondents is 17.00 hours annually—this is the time required to collect information. After consulting with a sample of people involved with the collection of this information, the time to complete this information collection is estimated to average 15 minutes per response, including gathering the data needed and completion and review of the information.
11. The total collection and mail cost burden on respondents is estimated at $584.80 annually ($552.16 time cost burden + $32.64 mail cost burden.)
a. The respondents will not incur any capital costs or start up costs for this collection.
b. Cost burden on respondents—detail:
We are estimating that a mid-level clerical person, with an average salary of $32.48 per hour, will be completing the “Application for Investigation of Representation Dispute” form. The total burden is estimated at 17 hours, therefore, the total time burden cost is estimated at $552.16 per year.
The collection of this information is not mandatory; it is a voluntary request from airline and railroad carrier employees seeking to invoke an investigation of a representation
The application form is available from the NMB's Office of Legal Affairs and is also available on the Internet at
12. The total annualized Federal cost is $846.98. This includes the costs of printing and mailing the forms upon request of the parties. The completed applications are maintained by the Office of Legal Affairs.
a. Printing cost: $ 80.00.
b. Mailing costs: $ 9.54.
Basis (mail cost): Forms are requested approximately 3 times per year and it takes 5 minutes to prepare the form for mail.
c. Processing Cost=$756.00.
Basis (processing cost): Representation is requested approximately 70 times oer year and it takes 20 minutes to process each application.
13. Item 13—no change in annual reporting and recordkeeping hour burden.
14. The information collected by the application will not be published.
15. The NMB will display the OMB expiration date on the form.
16(a)—the form does not reduce the burden on small entities; however, the burden is minimized and voluntary.
16(b)—the form does not indicate the retention period for record keeping requirements.
16(c)—the form is not part of a statistical survey.
Requests for copies of the proposed information collection request may be accessed from
Comments regarding burden and/or the collection activity requirements, as well as comments on any legal and substantive issues raised, should be directed to Samantha Williams at 202-692-5010 or via Internet address
Weeks of March 17, 24, 31, April 7, 14, 21, 2014.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of March 24, 2014.
There are no meetings scheduled for the week of March 31, 2014.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of April 14, 2014.
There are no meetings scheduled for the week of April 21, 2014.
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: Rochelle Bavol, 301-415-1651.
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 Kimberly Meyer, NRC Disability Program Manager, at 301-287-0727, or by email at
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to
Michael P. Cooley is a former Environmental Health and Safety Specialist, for Shaw, Stone & Webster (Shaw) at South Carolina Electric & Gas Company's Virgil C. Summer Nuclear Station (Licensee). The licensee is the holder of License No. NPF-12 issued by the U.S. Nuclear Regulatory
On January 16, 2013, an investigation was completed by the NRC's Office of Investigations (OI). The purpose of the investigation was to review the facts and circumstances surrounding Mr. Michael P. Cooley's actions with respect to his completion of a V. C. Summer Personnel History Questionnaire (PHQ) to obtain unescorted access authorization (UAA) to the facility.
In Section III of the PHQ titled “Criminal History Self-Disclosure,” Mr. Cooley answered “no” to a question that, in part, asked, “Have you ever been held, detained, taken into custody, charged, arrested, indicted, convicted for a violation of law, regulation, or ordinance (e.g., felony, misdemeanor, traffic, etc.), or do you have such a case pending or currently under indictment, on probation, parole, work release, or subject to any other control of court?”
During the subsequent background investigation conducted by the licensee in August and September 2010, a criminal record search returned a U.S. Federal Bureau of Investigation (FBI) record dated August 31, 2010, which revealed Mr. Cooley had been arrested on March 17, 2010, in Lucedale, Mississippi and charged with four counts of arson. The FBI record also revealed that the arson charges had been bound over to a grand jury in Mississippi, and were pending at the time Mr. Cooley completed the PHQ. The licensee's access authorization staff questioned Mr. Cooley about the failure to list the arrest and charges on the PHQ. Mr. Cooley explained his lawyer said there was no need to list the arrest because the charges were dismissed. The licensee's access staff accepted this explanation and asked Mr. Cooley to provide a document showing the charges were dismissed. Mr. Cooley fabricated a document that falsely stated the arson charges had been dismissed and he submitted it to the licensee's access authorization staff. The access authorization staff reviewed and adjudicated the forged document and found it acceptable. Mr. Cooley was granted the UAA to the V. C. Summer Nuclear Station. Mr. Cooley was employed at the site from August 30, 2010 until March 3, 2011, when the licensee learned the arson charges had not been dismissed, but were still pending. Mr. Cooley was terminated.
During questioning by the OI, Mr. Cooley admitted he was deliberately untruthful when answering “no” to the criminal history question in the PHQ, and admitted to deliberately fabricating the court record to conceal potentially disqualifying information.
In a letter dated June 5, 2013, the NRC provided Mr. Cooley the results of the OI investigation. The letter informed Mr. Cooley the NRC was considering escalated enforcement action against him for: (1) The deliberate failure to disclose an arrest for arson in the PHQ criminal history, information that was necessary for access staff to consider in making determinations regarding his trustworthiness and reliability, in apparent violation of 10 CFR 73.56(d)(2); and (2) the deliberate submittal of information he knew to be incomplete or inaccurate, in apparent violation of the requirements of 10 CFR 50.5(a)(2). Specifically, to support his assertion that arson charges had been dismissed, Mr. Cooley submitted a forged document dated September 14, 2010, that falsely stated arson charges had been dismissed by a Mississippi county court. At the time the document was submitted to the licensee's access authorization staff, the arson charges were pending. This information was material because it formed the basis for the licensee's determination that Mr. Cooley was trustworthy, reliable, and suitable for the granting of UAA. The NRC regulations at 10 CFR 73.56(c) require that licensees provide high assurance that individuals granted unescorted access are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety, or the common defense and security, including the potential to commit radiological sabotage.
The NRC's letter dated June 5, 2013, offered Mr. Cooley a choice to respond to the apparent violations within 30 days of the date of that letter, to attend a Predecisional Enforcement Conference, or to request Alternative Dispute Resolution (ADR) and the use of mediation to resolve any possible disagreement over: (1) Whether the violation occurred; and (2) the appropriate enforcement action. During a telephone conversation with the NRC's representatives on June 14, 2013, Mr. Cooley stated that he did not intend to provide a written response or request a Predecisional Enforcement Conference or ADR.
Based on the above, the NRC has concluded that Mr. Michael P. Cooley, a former Environmental Health and Safety Specialist for Shaw, Stone & Webster (Shaw) at South Carolina Electric & Gas Company's Virgil C. Summer Nuclear Station, engaged in deliberate misconduct that resulted in a violation of the requirements at 10 CFR 73.56(d)(2). In addition, Mr. Cooley deliberately submitted to the licensee information that he knew to be incomplete or inaccurate in some respect material to the NRC, in violation of the NRC regulations at 10 CFR 50.5(a)(2). Mr. Cooley's deliberate misconduct put the License in violation of 10 CFR 73.56 and 10 CFR 50.9.
The NRC must be able to rely on a licensee, its employees, and contractors to comply with the NRC's requirements, including the requirement that information provided to the NRC be complete and accurate in all material respects. Mr. Cooley's misstatements on his PHQ and his preparation and submission of a fabricated court document caused the licensee to violate 10 CFR 73.56(d)(2) and 10 CFR 50.9. Mr. Cooley's deliberate misconduct raises serious doubt as to whether he can be relied upon to comply with the NRC's regulatory requirements and to provide complete and accurate information to the NRC.
Consequently, I lack reasonable assurance that licensed activities can be conducted in compliance with Commission requirements and that the health and safety of the public will be protected, if Mr. Cooley were permitted to be involved in NRC-licensed activities. Therefore, the public health and safety, and the common defense and security of the nation require that Mr. Cooley be prohibited from any involvement in NRC-licensed activities for a period of 5 years following the effective date of this Order. Additionally, Mr. Cooley is required to notify the NRC if he is employed in NRC-licensed activities following the 5-year prohibition period; this restriction is for a period of 1 year.
Accordingly, pursuant to Sections 103, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202, 10 CFR 50.5, and 10 CFR 150.20,
1. Mr. Cooley is prohibited for a period of 5 years, from the effective date of this Order, from engaging in NRC-licensed activities. NRC-licensed
2. This Order shall be effective 30 days following its issuance and shall remain in effect for a period of 5 years.
3. If Mr. Cooley is currently involved with NRC-licensed activities, he must immediately cease those activities, and inform the NRC of the name, address and telephone number of his employer, and provide a copy of this Order to the employer.
4. For a period of 1 year after the 5-year period of prohibition has expired, Mr. Cooley shall, within 30 days of acceptance of his first employment offer involving NRC-licensed activities, or his becoming involved in NRC-licensed activities, as defined in Paragraph IV.1, provide notice to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, of the name, address, and telephone number of the employer or the entity where he is or will be involved in NRC-licensed activities. In the notification, Mr. Cooley shall include a statement of his commitment to compliance with regulatory requirements and the basis for why the Commission should have confidence that he will now comply with the applicable NRC's requirements.
The Director, Office of Enforcement, or designee, may, in writing, relax or rescind any of the above conditions upon demonstration by Mr. Cooley of good cause.
Mr. Michael P. Cooley is not required to respond to this Order; however, if he chooses to respond, he must submit a written answer to this Order under oath or affirmation within 30 days of issuance in accordance with 10 CFR 2.202.
Any person adversely affected by this Order may submit a written answer to this Order within 30 days of its issuance. In addition, Mr. Cooley, and any other person adversely affected by this Order, may request a hearing on this Order within 30 days of its issuance date. Where good cause is shown, consideration will be given to extending the time to answer or request a hearing. A request for extension of time must be made in writing to the Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 and include a statement of good cause for the extension.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's public Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the
Documents submitted in adjudicatory proceedings will appear in the NRC electronic hearing docket, which is available to the public at
If a person other than Mr. Cooley requests a hearing, that person shall set forth with particularity the manner in which his/her interest is adversely affected by this Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a licensee or a person whose interest is adversely affected, the Commission will issue an Order designating the time and place of any hearings. If a hearing is held, the issue to be considered at such hearing shall be whether this Order should be sustained. In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section IV above shall be final 30 days from the issuance date without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section IV shall be final when the extension expires if a hearing request has not been received.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Request for alternate decommissioning schedule; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) has received a request for an alternate decommissioning schedule from the Department of the Navy (Navy) for its Naval Postgraduate School (PGS) site, located in Monterey, California, permitted under the Navy's Master Materials License (MML) No. 45-23645-01NA. Approval of the request would extend the time period for the Navy to submit a decommissioning plan and initiate decommissioning activities at the PGS site.
Comments must be filed by May 16, 2014. A request for a hearing or petition for leave to intervene must be filed by May 16, 2014.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
• Federal Rulemaking Web site: Go to
• Mail comments to: Cindy Bladey, Chief, Rules, Announcements, and Directives Branch (RADB), Office of Administration, Mail Stop: 3WFN-06-44M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Orysia Masnyk Bailey, Decommissioning and Technical Support Branch, Division of Nuclear Materials Safety, Region I, U.S. Nuclear Regulatory Commission, 2100 Renaissance Boulevard, King of Prussia, Pennsylvania 19468; telephone: 864-427-1032; fax number: 610-680-3597; email:
Please refer to Docket ID NRC-2014-0046 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document by any of the following methods:
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Please include Docket ID NRC-2014-0046 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC received, by letter dated August 9, 2013 (ADAMS Accession No. ML13249A303), a license amendment application from the Navy for its PGS site, located in Monterey, California, requesting to extend the time for submitting a decommissioning plan. The PGS possesses a Type A broad scope permit issued under the Navy's MML No. 45-23645-01NA. Approval of the request would extend the time period for the Navy to submit a decommissioning plan and initiate decommissioning activities at the PGS site.
An NRC administrative completeness review, documented in a letter to the Navy dated January 14, 2014 (ADAMS Accession No. ML14028A533), found the application acceptable to begin a technical review. If the NRC approves the request, the approval will be documented in an amendment to the Navy's MML No. 45-23645-01NA. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended, and the NRC's regulations. These findings will be documented in a Safety Evaluation Report.
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action and who wishes to participate as a party in the proceeding may file a written request for a hearing and a petition for leave to intervene with respect to issuance of the license amendment request. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor/petitioner's interest. The petition must also identify the specific contentions that the requestor/petitioner seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Request for alternate decommissioning schedule; opportunity to comment, request a hearing and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) has received a request for an alternate decommissioning schedule from the Department of the Navy (Navy) for its Naval Air Warfare Center Weapons Division China Lake (China Lake) site,
Comments must be filed by May 16, 2014. A request for a hearing or petition for leave to intervene must be filed by May 16, 2014.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on accessing information and submitting comments, see “Accessing Information and Submitting Comments” in the
Orysia Masnyk Bailey, Health Physicist, Decommissioning and Technical Support Branch, Division of Nuclear Materials Safety, Region I, U.S. Nuclear Regulatory Commission, 2100 Renaissance Boulevard, King of Prussia, Pennsylvania 19468; telephone: 864-427-1032; fax number: 610-680-3597; email:
Please refer to Docket ID NRC-2014-0048 when contacting the NRC about the availability of information regarding this document. You may access publicly-available information related to this document by any of the following methods:
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•
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Please include Docket ID NRC-2014-0048 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC received, by letter dated August 9, 2013 (ADAMS Accession No. ML13249A290), a license amendment application from the Navy for its China Lake site located in China Lake, California, requesting to extend the time for submitting a decommissioning plan. China Lake has a “possession only” permit for the storage of depleted uranium, issued under the Navy's Master Materials License No. 45-23645-01NA. Approval of the request would extend the time period for the Navy to submit a decommissioning plan and initiate decommissioning activities at China Lake.
An NRC administrative completeness review, documented in a letter to the Navy dated January 14, 2014 (ADAMS Accession No. ML14028A504), found the application acceptable to begin a technical review. If the NRC approves the request, the approval will be documented in an amendment to the Navy's MML No. 45-23645-01NA. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended, and the NRC's regulations. These findings will be documented in a Safety Evaluation Report.
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action and who wishes to participate as a party in the proceeding may file a written request for a hearing and a petition for leave to intervene with respect to issuance of the license amendment request. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the NRC's PDR located at One White Flint North, Room O1-F21, 11555 Rockville Pike (first floor) Rockville, Maryland 20852. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth, with particularity, the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted, with particular reference to the following general requirements: (1) The name, address, and telephone number of
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of any amendment.
All documents filed in the NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least ten 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at
Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For the Nuclear Regulatory Commission.
Pension Benefit Guaranty Corporation.
Notice of request for extension of OMB approval.
The Pension Benefit Guaranty Corporation (PBGC) is requesting that the Office of Management and Budget (OMB) extend approval, under the Paperwork Reduction Act, of a collection of information contained in its regulation on Liability for Termination of Single-Employer Plans (OMB control number 1212-0017; expires March 31, 2014). This notice informs the public of PBGC's intent and solicits public comment on the collection of information.
Comments should be submitted by April 16, 2014.
Comments should be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Pension Benefit Guaranty Corporation, via electronic mail at
The collection of information may be obtained without charge by writing to the Disclosure Division, Office of General Counsel, at the above address or by visiting the Disclosure Division or calling 202-326-4040 during normal business hours. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4040.) The regulation on Liability for Termination of Single-Employer Plans can be found at
Dan Liebman, Regulatory Affairs Group, Office of the General Counsel, Pension Benefit Guaranty Corporation, 1200 K Street NW., Washington, DC 20005-4026,
Section 4062 of the Employee Retirement Income Security Act of 1974, as amended, provides that the contributing sponsor of a single-employer pension plan and members of the sponsor's controlled group (“the employer”) incur liability (“employer liability”) if the plan terminates with assets insufficient to pay benefit liabilities under the plan. PBGC's statutory lien for employer liability and the payment terms for employer liability are affected by whether and to what extent employer liability exceeds 30 percent of the employer's net worth.
Section 4062.6 of PBGC's employer liability regulation (29 CFR 4062.6) requires a contributing sponsor or member of the contributing sponsor's controlled group who believes employer liability upon plan termination exceeds 30 percent of the employer's net worth to so notify PBGC and to submit net worth information. This information is necessary to enable PBGC to determine whether and to what extent employer liability exceeds 30 percent of the employer's net worth.
The collection of information under the regulation has been approved by OMB under control number 1212-0017 through March 31, 2014. PBGC is requesting that OMB extend its approval for another three years. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
PBGC estimates that an average of thirty contributing sponsors or controlled group members per year will respond to this collection of information. PBGC further estimates that the average annual burden of this collection of information will be 12 hours and $4,200 per respondent, with an average total annual burden of 360 hours and $126,000.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 17(d) (15 U.S.C. 80a-17(d)) of the Investment Company Act of 1940 (15 U.S.C. 80a
Rule 17d-1 also contains a number of exceptions to the requirement that a fund must obtain Commission approval prior to entering into joint transactions or arrangements with affiliates. For example, funds do not have to obtain Commission approval for certain employee compensation plans, certain tax-deferred employee benefit plans, certain transactions involving small business investment companies, the receipt of securities or cash by certain affiliates pursuant to a plan of reorganization, certain arrangements regarding liability insurance policies and transactions with “portfolio affiliates” (companies that are affiliated with the fund solely as a result of the fund (or an affiliated fund) controlling them or owning more than five percent of their voting securities) so long as certain other affiliated persons of the fund (
Thus, the rule contains two filing and recordkeeping requirements that constitute collections of information. First, rule 17d-1 requires funds that wish to engage in a joint transaction or arrangement with affiliates to meet the procedural requirements for obtaining exemptive relief from the rule's prohibition on joint transactions or arrangements involving first- or second-tier affiliates. Second, rule 17d-1 permits a portfolio affiliate to enter into a joint transaction or arrangement with the fund if a prohibited participant has a financial interest that the fund's board determines is not material and records the basis for this finding in their meeting minutes. These requirements of rule 17d-1 are designed to prevent fund insiders from managing funds for their own benefit, rather than for the benefit of the funds' shareholders.
Based on an analysis of past filings, Commission staff estimates that 13 funds file applications under section 17(d) and rule 17d-1 per year. The staff understands that funds that file an application generally obtain assistance from outside counsel to prepare the application. The cost burden of using outside counsel is discussed below. The Commission staff estimates that each applicant will spend an average of 154 hours to comply with the Commission's applications process. The Commission staff therefore estimates the annual burden hours per year for all funds under rule 17d-1's application process to be 2,002 hours at a cost of $726,206.
As noted above, the Commission staff understands that funds that file an application under rule 17d-1 generally use outside counsel to assist in preparing the application. The staff estimates that, on average, funds spend an additional $93,131 for outside legal services in connection with seeking Commission approval of affiliated joint transactions. Thus, the staff estimates that the total annual cost burden imposed by the exemptive application requirements of rule 17d-1 is $1,210,703.
We estimate that funds currently do not rely on the exemption from the term “financial interest” with respect to any interest that the fund's board of directors (including a majority of the directors who are not interested persons of the fund) finds to be not material. Accordingly, we estimate that annually there will be no transactions under rule 17d-1 that will result in this aspect of the collection of information.
Based on these calculations, the total annual hour burden is estimated to be 2,002 hours and the total annual cost burden is estimated to be $1,024,441.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with these collections of information requirement is necessary to obtain the benefit of relying on rule 17d-1. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of
The public may view the background documentation for this information collection at the following Web site,
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend its Price List to (i) amend the fee for certain market at-the-close (“MOC”) and limit at-the-close (“LOC”) orders; (ii) amend the fee for Midpoint Passive Liquidity (“MPL”) orders; (iii) add a new credit for certain non-Floor broker transactions; (iv) increase the fee for certain non-Floor broker transactions; (v) increase the fee for certain Floor broker transactions; (vi) introduce additional credits for certain Floor broker transactions; (vii) increase the fee for certain Designated Market Maker (“DMM”) transactions; (viii) increase the credits for certain DMM transactions; (ix) introduce a monthly DMM credit for certain securities; and (x) revise the credits for Supplemental Liquidity Providers (“SLPs”). The proposed fees would be operative on March 1, 2014. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization 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 those 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 parts of such statements.
The Exchange proposes to amend its Price List to (i) amend the fee for certain MOC and LOC orders; (ii) amend the fee for MPL orders; (iii) add a new credit for certain non-Floor broker transactions; (iv) increase the fee for certain non-Floor broker transactions; (v) increase the fee for certain Floor broker transactions; (vi) introduce additional credits for certain Floor broker transactions; (vii) increase the fee for certain DMM transactions; (viii) increase the credits for certain DMM transactions; (ix) introduce a monthly DMM credit for certain securities; and (x) revise the credits for SLPs. The proposed fees would be operative on March 1, 2014.
Currently, the Exchange charges $0.00055 per share per transaction (charged to both sides) for all MOC and LOC orders if a member organization executes an average daily trading volume (“ADV”) of MOC and LOC activity on the Exchange in that month of at least 0.375% of consolidated ADV in NYSE-listed securities during the billing month (“NYSE CADV”). The Exchange proposes to add an alternative way to qualify for the $0.00055 per share per transaction fee. Specifically, the Exchange proposes to charge $0.00055 per share per transaction (charged to both sides) for all MOC and LOC orders if a member organization executes an ADV of MOC and LOC activity on the Exchange in that month of at least 0.300% of NYSE CADV plus an ADV of total close (MOC/LOC and executions at the close) activity on the Exchange in that month of at least 0.475% of NYSE CADV.
The Exchange also proposes to make a non-substantive change to the Price List to delete the language specifically excluding odd lots through January 31, 2014, as that language is no longer operative.
The Exchange currently charges $0.0025 per share for all MPL orders that remove liquidity from the Exchange if the security is priced $1.00 or more, for all participants, including Floor brokers and DMMs. The Exchange proposes to increase the fee for MPL orders that remove liquidity from the Exchange if the security is priced $1.00 or more to $0.0026 per share. The Exchange notes that this fee increase is consistent with the other proposed fee increases for taking liquidity, discussed below.
The Exchange proposes to establish a $0.0019 per share credit per transaction for all non-Floor broker transactions that add liquidity to the Exchange if the member organization executes an ADV during the billing month of at least 1 million shares in Retail Price Improvement Orders (“RPIs”)
Currently, the Exchange charges $0.0025 per share for all non-Floor broker transactions that take liquidity from the Exchange if the security is priced $1.00 or more. The Exchange proposes to increase this fee to $0.0026 per share.
Currently, the Exchange charges $0.0020 per share for all Floor broker transactions that take liquidity from the Exchange from any member organization executing an ADV in such Floor broker transactions that is at least 10% more than their May 2013 ADV for such Floor broker transaction if the security is priced $1.00 or more. The Exchange currently charges $0.0022 per share for all other Floor broker transactions that take liquidity from the Exchange if the security is priced $1.00 or more. The Exchange proposes to increase these fees from $0.0020 to $0.0021 per share and $0.0022 to $0.0023 per share, respectively.
In addition, the Exchange currently offers a $0.0019 credit per share for executions of orders sent to the Floor broker for representation on the Exchange when adding liquidity to the Exchange. The Exchange proposes to offer additional tiered credits for executions of orders sent to the Floor broker for representation on the Exchange when adding liquidity to the Exchange if the member organization adds liquidity to the Exchange by the Floor broker during the billing month that meets the following thresholds: (i) A $0.0020 credit for adding at least 2 million shares ADV; (ii) a $0.0021 credit for adding at least 4 million shares ADV; and (iii) a $0.0023 credit for adding at least 14 million shares ADV.
Currently, the Exchange charges $0.0025 per share for all DMM transactions that take liquidity from the Exchange if the security is priced $1.00 or more. The Exchange proposes to increase this fee to $0.0026 per share.
In addition, DMMs are currently eligible for a per share credit when adding liquidity in shares of each More Active Security
The Exchange is also proposing to pay DMMs a monthly credit of $200, in addition to the current rate on transactions, for each security that has a consolidated ADV of less than 250,000 shares during the billing month in any month in which the DMM meets the Less Active Securities Quoting Requirement.
The Exchange currently offers a $0.0023 ($0.0018 for Non-Displayed Reserve Orders) credit per share per transaction for SLPs that add liquidity to the Exchange in securities with a per share price of $1.00 or more, if the SLP (i) meets the 10% average or more quoting requirement in an assigned security pursuant to Rule 107B (quotes of an SLP-Prop and an SLMM of the same member organization shall not be aggregated) (“Assigned Security Quoting Requirement”) and (ii) adds liquidity for all assigned SLP securities in the aggregate (including shares of both an SLP-Prop and an SLMM of the same member organization) of an ADV of more than 0.22% of NYSE CADV. The Exchange also offers a $0.0027 ($0.0022 for Non-Displayed Reserve Orders) credit per share per transaction for SLPs that add liquidity to the Exchange in securities with a per share price of $1.00 or more, if the SLP (i) meets the 10% average or more Assigned Security Quoting Requirement, (ii) adds liquidity for all assigned SLP securities in the aggregate (including shares of both an SLP-Prop and an SLMM of the same member organization) of an ADV of more than 0.22% of NYSE CADV, (iii) adds liquidity for all assigned SLP securities in the aggregate (including shares of both an SLP-Prop and an SLMM of the same member organization) of an ADV during the billing month that is at least a 0.18% increase over the SLP's September 2012 Adding ADV, and (iv) has a minimum provide ADV for all assigned SLP securities of 12 million shares.
The Exchange proposes to revise these SLP credits and offer an additional credit. First, the Exchange proposes to reduce the second requirement to receive the $0.0023 ($0.0018 for Non-Displayed Reserve Orders) credit per share from an ADV of more than 0.22% of NYSE CADV to an ADV of more than 0.20% of NYSE CADV. Second, the Exchange proposes to add an additional credit of $0.0025 ($0.0020 for Non-Displayed Reserve Orders) per share per
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed new method to qualify for the $0.00055 per share per transaction fee for MOC and LOC orders is reasonable because it would provide member organizations with an alternative way in which to qualify for the reduced fee, thereby encouraging member organizations to provide higher volumes of MOC and LOC orders and total close activity, which will contribute to the quality of the Exchange's closing auction and provide market participants with MOC and LOC orders, or whose orders are swept into the close, with a greater opportunity for execution. The Exchange believes that the proposed tier is equitable and not unfairly discriminatory because all member organizations will be subject to the same fee structure, which will automatically adjust based on prevailing market conditions. The Exchange believes that it is equitable and not unfairly discriminatory to charge a lower fee to member organizations that make significant contributions to market quality by providing higher volumes of liquidity, which benefits all market participants.
The Exchange believes that raising the taking liquidity fee for MPL orders is reasonable because the fee would be the same as the fee that would otherwise apply for all other non-Floor broker transactions. The Exchange notes that the proposed fee is less than the fee charged by at least one other exchange for MPL orders.
The Exchange believes that the proposed credit for member organizations that execute an ADV during the billing month of at least 1 million shares in RPIs and a Customer Electronic Adding ADV during the billing month of at least 5 million shares is reasonable, equitable, and not unfairly discriminatory because it will incentivize member organizations to submit RPIs and, therefore, contribute to robust amounts of RPI liquidity being available for interaction with retail orders submitted by other market participants. The proposed credit would also encourage overall liquidity in customer electronic orders that add liquidity to the Exchange. The Exchange believes that raising the taking liquidity fee for non-Floor brokers is reasonable in light of the increased credits the Exchange is proposing in order to increase liquidity on the Exchange. The Exchange believes the increased fee is equitable and not unfairly discriminatory because all similarly situated non-Floor brokers will be subject to the same fee structure.
The Exchange believes that the proposed tiered credits for executions of orders sent to the Floor broker for representation on the Exchange are reasonable because they encourage additional displayed liquidity on the Exchange. The Exchange believes the new credits are equitable and not unfairly discriminatory because they allocate a higher rebate to Floor brokers that make significant contributions to market quality and that contribute to price discovery by providing higher volumes of liquidity. The Exchange believes that raising the taking liquidity fees for Floor brokers is reasonable because it is designed to strike a balance in the fees and incentives offered by the Exchange for taking and providing liquidity. The Exchange believes the increased fees are equitable and not unfairly discriminatory because all similarly situated Floor brokers will be subject to the same fee structure.
The Exchange believes that increasing the credits for DMM transactions in More Active Securities is reasonable because it will encourage greater liquidity and competition in such securities on the Exchange. The Exchange believes that the proposed monthly credit of $200 is reasonable because it will increase the incentive to add liquidity across thinly traded securities where there may be fewer liquidity providers. The Exchange believes it is equitable and not unfairly discriminatory to allocate higher or additional credits to DMMs rather than to other market participants because DMMs have higher quoting obligations, and in turn provide higher volumes of liquidity, which contributes to price discovery and benefits all market participants. The Exchange believes that raising the taking liquidity fee for DMMs is reasonable in light of the increased credits the Exchange is proposing in order to increase liquidity on the Exchange. The Exchange believes the increased fee is equitable and not unfairly discriminatory because all similarly situated DMMs will be subject to the same fee structure.
The Exchange believes that the proposed credits for SLPs that add liquidity to the Exchange with a per share price of $1.00 or more if the SLP meets certain requirements is reasonable because it would create an added incentive for SLPs to provide liquidity in assigned securities. This is reasonable because the added incentive created by the availability of the increased credits is reasonably related to an SLP's liquidity obligations on the Exchange. The corresponding increase in the credit applicable to Non-Displayed Reserve Orders is also reasonable because it would maintain the existing $0.0005 difference between these order types and all other order types (excluding MPL orders). The Exchange believes that the proposed increase in the credits is equitable and not unfairly discriminatory because, as is currently the case under the existing rates, the credits are available to all qualifying SLPs on an equal basis and because the
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that the proposed fees for certain MOC and LOC orders will not place a burden on competition because the Exchange is establishing an alternative way for member organizations to achieve the reduced fee, which would allow more member organizations to compete and qualify for the fee. The Exchange believes that the new and revised fees and credits for non-Floor brokers, Floor brokers, and DMMs would not burden competition. Rather, the Exchange believes that the proposed changes strike an appropriate balance between fees and credits, which will create an incentive to submit orders to the Exchange, thereby promoting competition. The revised credits for certain SLP executions would not burden competition because all SLPs would have the opportunity to qualify for the credits. The credits would create an added incentive for SLPs to provide liquidity on the Exchange, thereby also contributing to the Exchange's competitiveness with other markets.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee or credit levels at a particular venue to be unattractive. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and is therefore consistent with the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Reality Shares Isolated Dividend Growth ETF. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization 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 those 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 parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition of and/or changes to such investment company portfolio. Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the open-end fund's portfolio.
According to the Registration Statement, the Fund will seek to produce long term capital appreciation by attempting to isolate the value of dividends paid by a portfolio of U.S., European and Japanese large
Under normal market conditions,
The Fund may take long or short positions in the securities issued by large capitalization companies listed for trading in the U.S., Europe and Japan. A “long” position means to hold or be exposed to a security or instrument with the expectation that its value will increase over time. A “short position” means to sell or be exposed to a security or instrument with the expectation that it will fall in value. To the extent permitted under the 1940 Act, the Fund may take long or short positions in shares of exchange traded funds (“ETFs”) that provide exposure to indexes of large-capitalization equity securities listed for trading in the U.S., Europe and Japan, such as the S&P 500 Index, the Euro Stoxx 50 Index and the Nikkei 225 Index, or any subset of such indexes (“Underlying ETFs”).
The Fund may buy and sell listed or over-the counter (“OTC”) options on indexes of large-capitalization U.S., European and Japanese equity securities listed for trading in the U.S., Europe and Japan, such as the S&P 500 Index, the Euro Stoxx 50 Index and the Nikkei 225 Index, and the securities, or any group of securities, issued by large capitalization U.S., European and Japanese companies.
The Fund may invest in exchange-listed futures contracts and forward contracts based on indexes of large-capitalization U.S., European and Japanese equity securities listed for trading in the U.S., Europe or Japan, such as the S&P 500 Index, the Euro Stoxx 50 Index and the Nikkei 225 Index, and the securities, or any group of securities, issued by large capitalization U.S., European and Japanese companies. A listed futures contract is a standardized contract traded on a recognized exchange in which two parties agree to exchange either a specified financial asset or the cash equivalent of said asset at a specified future date and price. A forward contract involves the obligation to purchase or sell either a specified financial asset or the cash equivalent of said asset at a future date at a price set at the time of the contract. The Fund's use of listed futures contracts and forward contracts will be designed to allow the Fund to isolate its exposure to the growth of the level of the dividends expected to be paid on the securities of large capitalization U.S., European and Japanese companies, while minimizing the Fund's exposure to changes in the trading price of such securities. The Fund also may invest in Eurodollar futures contracts to manage or hedge exposure to interest rate fluctuations. The Fund may invest up to 80% of its assets through futures contracts and forward transactions.
The Fund may enter into dividend and total return swap transactions (including equity swap transactions) based on indexes of large-capitalization U.S., European and Japanese equity securities listed for trading in the U.S., Europe and Japan, such as the S&P 500 Index, the Euro Stoxx 50 Index and the Nikkei 225 Index, and securities, or any group of securities, issued by large capitalization U.S., European and Japanese companies.
The Fund's short positions and its investments in swaps, futures contracts, forward contracts and options will be backed by investments in U.S. Government Securities or other liquid assets in an amount equal to the Fund's maximum liability under the applicable position or contract. U.S. Government Securities include securities issued or guaranteed by the U.S. government or its authorities, agencies, or instrumentalities.
The Fund will attempt to limit counterparty risk by entering into swap, forward and option contracts only with counterparties the Adviser believes are creditworthy and by limiting the Fund's exposure to each counterparty. The Adviser will monitor the creditworthiness of each counterparty and the Fund's exposure to each counterparty on an ongoing basis.
The Fund's investments in swaps, futures contracts, forward contracts and options will be consistent with the Fund's investment objective and with the requirements of the 1940 Act.
In addition to the investments described above, the Fund may invest up to 20% of its net assets in high-quality, short-term debt securities and money market instruments.
The Fund will not purchase the securities of issuers conducting their principal business activity in the same industry if, immediately after the purchase and as a result thereof, the value of the Fund's investments in that industry would equal or exceed 25% of the current value of the Fund's total assets, provided that this restriction does not limit the Fund's: (i) Investments in securities of other investment companies, (ii) investments in securities issued or guaranteed by the U.S. government, its agencies or instrumentalities, or (iii) investments in repurchase agreements collateralized by U.S. Government securities.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser, consistent with Commission guidance.
The Fund may invest in the securities of other investment companies (including money market funds) to the extent permitted under the 1940 Act.
The Fund will be classified as a “non-diversified” investment company under the 1940 Act.
The Fund intends to qualify for and to elect treatment as a separate regulated investment company (“RIC”) under Subchapter M of the Internal Revenue Code.
The Fund's investments will be consistent with its investment objective and will not be used to provide multiple returns of a benchmark or to produce
According to the Registration Statement, the Fund will issue and redeem Shares only in Creation Units at the net asset value (“NAV”) next determined after receipt of an order on a continuous basis every business day. Creation Unit sizes are 25,000 Shares or more per Creation Unit. The Creation Unit size for the Fund may change.
The consideration for purchase of a Creation Unit of the Fund generally will consist of either (i) the in-kind deposit of a designated portfolio of securities (the “Deposit Securities”) per each Creation Unit and the “Cash Component” (defined below), computed as described below or (ii) the cash value of the Deposit Securities (“Deposit Cash”) and the Cash Component, computed as described below. Because non-exchange traded derivatives are not eligible for in-kind transfer, they will be substituted with an amount of cash of equal value (
A portfolio composition file, to be sent via the National Securities Clearing Corporation (“NSCC”), will be made available on each business day, prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time) containing a list of the names and the required number of shares of each security in the Deposit Securities to be included in the current Fund Deposit for the Fund (based on information about the Fund's portfolio at the end of the previous business day). In addition, on each business day, the estimated Cash Component, effective through and including the previous business day, will be made available through NSCC.
The Fund Deposit is applicable for purchases of Creation Units of the Fund until such time as the next-announced Fund Deposit is made available. In accordance with the Exemptive Order, the Fund reserves the right to accept a nonconforming Fund Deposit. In addition, the composition of the Deposit Securities may change as, among other things, corporate actions and investment decisions by the Adviser are implemented for the Fund's portfolio.
All purchase orders must be placed by or through an “Authorized Participant”. An Authorized Participant must be either a broker-dealer or other participant in the Continuous Net Settlement System (“Clearing Process”) of the NSCC or a participant in The Depository Trust Company (“DTC”) with access to the DTC system, and must execute an agreement with the Distributor that governs transactions in the Fund's Creation Units. In-kind portions of purchase orders will be processed through the Clearing Process when it is available.
Fund Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Distributor and only on a business day. The Fund, through the NSCC, will make available immediately prior to the opening of business on the Exchange on each business day, the list of the names and quantities of the Fund's portfolio securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day (“Fund Securities”). Redemption proceeds for a Creation Unit will be paid either in-kind or in cash or a combination thereof, as determined by the Trust. With respect to in-kind redemptions of the Fund, redemption proceeds for a Creation Unit will consist of Fund Securities plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities (the “Cash Redemption Amount”). In the event that the Fund Securities have a value greater than the NAV of the Shares, a compensating cash payment equal to the differential will be required to be made by or through an Authorized Participant by the redeeming shareholder. Notwithstanding the foregoing, at the Trust's discretion, an Authorized Participant may receive the corresponding cash value of the securities in lieu of the in-kind securities representing one or more Fund Securities.
The right of redemption may be suspended or the date of payment postponed: (i) For any period during which the New York Stock Exchange (“NYSE”) is closed (other than customary weekend and holiday closings); (ii) for any period during which trading on the NYSE is suspended or restricted; (iii) for any period during which an emergency exists as a result of which disposal of the Shares or determination of the Fund's NAV is not reasonably practicable; or (iv) in such other circumstances as permitted by the Commission.
For an order involving a Creation Unit to be effectuated at the Fund's NAV on a particular day, it must be received by the Distributor by or before the deadline for such order (“Order Cut-Off Time”). The Order Cut-Off Time for creation and redemption orders for the Fund is generally expected to be 4:00 p.m. Eastern Time. Orders for creation or redemption of Creation Units for cash generally must be submitted by 4:00 p.m. Eastern Time. A standard creation or redemption transaction fee (as
Detailed descriptions of the Fund's procedures for creating and redeeming Shares, transaction fees and expenses, dividends, distributions, taxes, risks, and reports to be distributed to beneficial owners of the Shares can be found in the Registration Statement or on the Web site for the Fund (which will be publicly available prior to the public offering of Shares), as applicable.
The Fund will calculate its NAV by: (i) Taking the current market value of its total assets; (ii) subtracting any liabilities; and (iii) dividing that amount by the total number of Shares outstanding. The Fund will calculate NAV once each business day as of the regularly scheduled close of trading on the NYSE (normally, 4:00 p.m., Eastern Time) as described in its Registration Statement.
In calculating the Fund's NAV per Share, the Fund's investments will be valued in accordance with procedures approved by the Trust's Board of Trustees. These procedures, which may be changed by the Trust's Board of Trustees from time to time, generally require investments to be valued using market valuations. A market valuation generally means a valuation (i) obtained from an exchange, an independent pricing service, or a major market maker (or dealer), (ii) based on a price quotation or other equivalent indication of value supplied by an exchange, an independent pricing service, or a major market maker (or dealer) or (iii) based on amortized cost. The Trust may use various independent pricing services, or discontinue the use of any independent pricing service, as determined by the Trust's Board of Trustees from time to time.
The Trust will generally value exchange-listed equity securities (which include common stocks and Underlying ETFs) and exchange-listed options on such securities at market closing prices. Market closing price is generally determined on the basis of last reported sales prices, or if no sales are reported, based on the last reported quotes. The Trust will generally value listed futures at the settlement price determined by the applicable exchange. Non-exchange-traded derivatives, such as forwards, OTC options and swap transactions, will normally be valued on the basis of quotations or equivalent indication of value supplied by an independent pricing service or major market makers or dealers. Investment company securities (other than Underlying ETFs) will be valued at NAV. Debt securities and money market instruments generally will be valued based on prices provided by independent pricing services, which may use valuation models or matrix pricing to determine current value. The Trust generally will use amortized cost to value debt securities and money market instruments that have a remaining maturity of 60 days or less.
In the event that current market valuations are not readily available or the Trust or Adviser believes such valuations do not reflect current market value, the Trust's procedures require that a security's fair value be determined.
The Fund's Web site,
On a daily basis, the Adviser will disclose for each portfolio security and other financial instrument of the Fund the following information on the Fund's Web site: Ticker symbol (if applicable), name of security and financial instrument, number of shares or dollar value [sic] securities and of financial instruments held in the portfolio, and percentage weighting of the security and financial instrument in the portfolio. The Web site information will be publicly available at no charge.
In addition, a portfolio composition file, which includes the security names and share quantities required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via NSCC. The portfolio composition file will represent one Creation Unit of Shares of the Fund.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Trust's Form N-CSR and Form N-SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N-CSR and Form N-SAR may be viewed on-screen or downloaded from the Commission's Web site at
Additional information regarding the Trust and the Shares, including investment strategies, risks, creation and redemption procedures, fees, portfolio holdings disclosure policies, distributions and taxes is included in the Registration Statement. All terms relating to the Fund that are referred to, but not defined in, this proposed rule change are defined in the Registration Statement.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A-3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Not more than 10% of the assets of the Fund in the aggregate shall consist of non-U.S. equity securities whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of the Fund in the aggregate shall consist of futures contracts or exchange-traded options whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”)
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. The Adviser is not registered as a broker-dealer and is not affiliated with any broker-dealers. In the event (a) the Adviser or any sub-adviser becomes registered as a broker-dealer or newly affiliated with a broker-dealer, or (b) any new adviser or sub-adviser is a registered broker-dealer or becomes affiliated with a broker-dealer, they will implement a fire wall with respect to their relevant personnel or broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio. The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), including Rule 144A securities deemed illiquid by the Adviser. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, certain equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Not more than 10% of the assets of the Fund in the aggregate shall consist of non-U.S. equity securities whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of the Fund in the aggregate shall consist of futures contracts or exchange-traded options whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. Moreover, the PIV will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day. Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information will be available via the CTA high-speed line. The intra-day, closing and settlement prices of the portfolio securities and other Fund investments, including Underlying ETFs, futures and exchange-traded equities and options, will also be readily available from the national securities exchanges trading such securities, automated quotation systems, published or other public sources, and, with respect to OTC options, swaps and forwards, from third party pricing sources, or on-line information services such as Bloomberg or Reuters. Price information regarding investment company securities other than Underlying ETFs will be available from on-line information services and from the Web site for the applicable investment company security. The intra-day, closing and settlement prices of debt securities and money market instruments will be readily available from published and other public sources or on-line information services. The Web site for the Fund will include the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares, equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, equity securities, Underlying ETFs, and certain futures contracts and exchange-listed options contracts from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Not more than 10% of the assets of the Fund in the aggregate shall consist of non-U.S. equity securities whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. Furthermore, not more than 10% of the net assets of the Fund in the aggregate shall consist of futures contracts or exchange-traded options whose principal market is not a member of ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares. The Fund's investments will be consistent with its investment objective and will not be used to provide multiple returns of a benchmark or to produce leveraged returns. The Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
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 email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the
The MSRB is filing with the Commission a proposed rule change relating to the MSRB's Electronic Municipal Market Access system (“EMMA”), Real-time Transaction Reporting System (“RTRS”), and Short-Term Obligation Rate Transparency System (“SHORT System”) (the “proposed rule change”). The proposed rule change consists of (i) fee increases for the MSRB's Real-Time Transaction Data Subscription Service, Comprehensive Transaction Data Subscription Service, and SHORT System subscription service; (ii) revisions to the EMMA, RTRS, and the SHORT System facilities language to clarify or otherwise provide that the MSRB may waive fees for these subscription services for non-profit organizations (including institutions of higher education) and for organizations providing, at no out-of-pocket charge to the MSRB, services or products to the MSRB for internal or public use or dissemination on EMMA on terms agreeable to the MSRB; (iii) revisions to the EMMA Continuing Disclosure Service facilities language to clarify that a Nationally Recognized Statistical Rating Organization (“NRSRO”) for which such service or product fees are waived could, nevertheless, be treated as having agreed to provide credit rating and related information to the MSRB on terms that qualify for the display of that information on EMMA; and (iv) revisions to the RTRS Historical Transaction Data Product facilities language to clarify that the purchase price of the product does not include sales tax, as required by Virginia state law, in order to harmonize the language for that product with the existing language of the EMMA, SHORT, and other RTRS facilities.
The text of the proposed rule change is available on the MSRB's Web site at
In its filing with the Commission, the MSRB 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 MSRB has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
RTRS is a facility for the collection and dissemination of information about transactions occurring in the municipal securities market. RTRS and its Real-Time Transaction Data Subscription Service provide a real-time stream of data representing municipal securities transaction reports made by brokers, dealers, and municipal securities dealers to RTRS for an annual subscription fee of $10,000.
Another component of RTRS is the MSRB Comprehensive Transaction Data Subscription Service (the “Comprehensive Service”), which consists of three trade reports: Transaction data one business day after the trade (T+1), transaction data five business days after the trade (T+5), and transaction data 20 business days after the trade (T+20). The MSRB proposes to increase the annual subscription fee for the Comprehensive Service from $5,000 to $5,500, effective April 1, 2014.
The SHORT System is a facility of the MSRB for the collection and dissemination of information about securities bearing interest at short-term rates. Currently, these securities consist of auction rate securities and variable-rate demand obligations. The MSRB makes the information and documents collected by the SHORT System available through a subscription service, which is available for an annual fee of $10,000.
The MSRB has not increased the cost of either the Real-Time Transaction Data Subscription Service or the Comprehensive Service since January 2011, and has not increased the cost of the SHORT System subscription service since its inception in 2010. The SEC and Congress, as noted below, have recognized the need for the MSRB to charge commercially reasonable fees for automated subscription-based feeds. Currently, the Real-Time Transaction Data Subscription Service generates revenue of approximately $540,000 annually, the Comprehensive Service generates revenue of approximately $185,000 annually, and the SHORT System subscription service generates revenue of approximately $120,000 annually. The MSRB believes that incremental increases under the proposed rule change are commercially reasonable and notes that, even with the proposed increases, such fees would cover only a portion of the RTRS and SHORT System operating costs.
The MSRB proposes to revise the EMMA, RTRS, and the SHORT System facilities language to clarify, add to and harmonize the provisions pertaining to the waiver of fees for subscription services or products for non-profit organizations (including institutions of higher education) and for organizations providing, at no out-of-pocket charge to the MSRB, services or products to the MSRB for internal or public use or dissemination on EMMA on terms agreeable to the MSRB. Currently, the facilities language for most of the products and services provides that the MSRB can, in its discretion, waive certain fees for non-profit organizations, but the effectuating language is inconsistent across the facilities.
The MSRB believes that waivers of fees are potentially appropriate for non-profit organizations and organizations
The MSRB also proposes to revise the RTRS Historical Transaction Data Product facilities language to include language pertaining to the purchase price in order to harmonize the RTRS Historical Transaction Data Product facility with the existing language of the EMMA, SHORT, and other RTRS facilities. Currently, the EMMA, SHORT, and other RTRS facilities provide that the purchase price of a product does not include sales tax, as required by Virginia state law, and that the purchase price is a one-time charge for each facility and will not include any future additions for enhancements that may be added to the data for each facility. The proposed rule change would add this provision to the RTRS Historical Transaction Data Product facility in conformity with the other analogous facilities.
The MSRB believes that the proposed rule change is consistent with Section 15B(b)(2)(J) of the Securities Exchange Act of 1934 (the “Act”),
The MSRB also believes that the proposed rule change is consistent with Section 15B(b)(3)(B)(ii) of the Act,
The MSRB does not believe that the proposed rule change would impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The fee increases would apply equally to all market participants that choose to subscribe to the services (unless waived by the MSRB), and those who choose not to subscribe may view the same information for free on the EMMA web portal.
Written comments were neither solicited nor received on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act and paragraph (f) of Rule 19b-4 thereunder. At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes 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 email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List to modify the current adding credit tiers and add a new adding credit tier. The proposed fees would be operative on March 1, 2014. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization 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 those 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 parts of such statements.
The Exchange proposes to amend its Price List to modify the current adding credit tiers and add a new adding credit tier. The proposed fees would be operative on March 1, 2014.
Under the current Tier 1 Adding Credit, the Exchange offers a credit of $0.0020 per share ($0.0010 if a Non-Displayed Reserve Order or $0.0015 if a Midpoint Passive Liquidity (“MPL”) order) for transactions in stocks with a per share price of $1.00 or more when adding liquidity to the Exchange if:
(i) The member organization has average daily trading volume (“ADV”) that adds liquidity to the NYSE during the billing month (“Adding ADV,” which shall exclude any liquidity added by a Designated Market Maker (“DMM”)) that is at least 1.5% of consolidated average daily volume in NYSE-listed securities during the billing month (“NYSE CADV”), and executes market at-the-close (“MOC”) and limit at-the-close (“LOC”) orders of at least 0.375% of NYSE CADV;
(ii) the member organization has Adding ADV that is at least 0.8% of NYSE CADV, executes MOC and LOC orders of at least 0.12% of NYSE CADV, and adds liquidity to the NYSE as a Supplemental Liquidity Provider (“SLP”) for all assigned SLP securities in the aggregate (including shares of both an SLP proprietary trading unit (“SLP-Prop”) and an SLP market maker (“SLMM”) of the same member organization) of more than 0.15% of NYSE CADV; or
(iii) the member organization has ADV that adds liquidity in customer electronic orders to the NYSE (“Customer Electronic Adding ADV,” which shall exclude any liquidity added by a Floor broker, DMM, or SLP) during the billing month that is at least 0.5% of NYSE CADV, executes MOC and LOC orders of at least 0.12% of NYSE CADV, and has Customer Electronic Adding ADV during the billing month that, taken as a percentage of NYSE CADV, is at least equal to the member organization's Customer Electronic Adding ADV during September 2012 as a percentage of consolidated average daily volume in NYSE-listed securities during September 2012 plus 15%.
The Exchange proposes to modify the first method by which a member organization may qualify for the current Tier 1 Adding Credit. Specifically, a member organization would qualify for the credit of $0.0020 per share ($0.0010 if a Non-Displayed Reserve Order or $0.0015 if an MPL order) for transactions in stocks with a per share price of $1.00 or more when adding liquidity to the Exchange if the member organization has Customer Electronic Adding ADV that is at least 1.1% of NYSE CADV, and executes MOC and LOC orders of at least 0.375% of NYSE CADV. The Exchange does not propose to modify the second or third methods by which a member organization may qualify for the current Tier 1 Adding Credit.
The Exchange also proposes to establish a new adding credit tier, which would provide a credit of $0.0022 per share ($0.0010 if a Non-Displayed Reserve Order or $0.0015 if an MPL order) for transactions in stocks with a per share price of $1.00 or more when adding liquidity to the Exchange if:
(i) The member organization has Customer Electronic Adding ADV during the billing month that is at least 1.25% of NYSE CADV, and executes MOC and LOC orders of at least 0.12% of NYSE CADV; or
(ii) the member organization has Customer Electronic Adding ADV during the billing month that is at least 0.85% of NYSE CADV, executes MOC and LOC orders of at least 0.12% of NYSE CADV, and either (a) adds liquidity to the NYSE as an SLP for all assigned SLP securities in the aggregate (including shares of both an SLP-Prop and an SLMM of the same member organization) of more than 0.3% of NYSE CADV or (b) adds liquidity to the NYSE as a Floor broker of more than 0.3% of NYSE CADV.
The Exchange proposes to name the new adding credit tier the “Tier 1 Adding Credit” and would rename the current Tier 1 Adding Credit and Tier 2 Adding Credit, the “Tier 2 Adding Credit” and “Tier 3 Adding Credit,” respectively. The Exchange also proposes to make certain non-substantive, conforming changes to the Price List.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that modifying the first method by which member organizations may qualify for the credit of $0.0020 per share under the current Tier 1 Adding Credit by basing the threshold on Customer Electronic Adding ADV that is at least 1.1% of NYSE CADV is reasonable because it would encourage the submission of customer electronic orders that add liquidity to the Exchange. The Exchange believes that the proposed change is equitable and not unfairly discriminatory because it would encourage multiple sources of liquidity by providing member organizations that do not have a DMM, SLP, or Floor broker unit with an additional method to qualify for the credit. As is currently the case, member organizations would continue to have three distinct methods of qualifying for the $0.0020 per share credit.
The Exchange believes that the new Tier 1 Adding Credit of $0.0022 per share for transactions in stocks with a per share stock price of $1.00 or more when adding liquidity is reasonable because it would further contribute to incenting member organizations to provide additional amounts of liquidity on the Exchange. The Exchange believes that the proposed new Tier 1 Adding Credit of $0.0022 is equitable and not unfairly discriminatory because all member organizations would benefit from such increased levels of liquidity. In addition, the new Tier 1 Adding Credit would provide a higher credit to member organizations that is reasonably related to the value to the Exchange's market quality associated with higher volumes of liquidity. In addition, the Exchange believes that the proposed new Tier 1 Adding Credit is equitable and not unfairly discriminatory because it would provide several methods of qualifying for the credit, which would attract multiple sources of liquidity to the Exchange.
In accordance with Section 6(b)(8) of the Act,
The proposed changes to the adding credit tiers would not burden competition, but rather would encourage multiple sources of liquidity, including both member organizations with an SLP or Floor broker unit and those without. In addition, the proposed new Tier 1 Adding Credit would not burden competition; rather, it is designed to encourage member organizations to submit additional amounts of liquidity on the Exchange.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee or credit levels at a particular venue to be unattractive. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For these reasons, the Exchange believes that the proposed rule change reflects this competitive environment and is therefore consistent with the Act.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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 email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The ISE proposes to amend Rule 805(a) to permit market makers to enter Opening Only Orders in the options classes to which they are appointed. The text of the proposed rule change is available on the Exchange's Web site (
In its filing with the Commission, the self-regulatory organization 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 self-regulatory organization has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 805(a) to permit market makers to enter Opening Only Orders in the options classes to which they are appointed. On October 7, 2010 the Exchange filed an immediately effective rule change that, among other things, established two new order types, including the “Opening Only Order,” which is a limit order that can be entered for the opening rotation only.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Securities Exchange Act of 1934 (the “Act”),
In accordance with Section 6(b)(8) of the Act,
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from members or other interested parties.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
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 email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Office of the Assistant Legal Adviser for Private International Law, Department of State, hereby gives notice of a public meeting of the Study Group on Choice of Law in International Commercial Contracts. This is not a meeting of the full Advisory Committee.
A working group of experts from various countries was established by the Hague Conference on Private International Law to develop non-binding principles relevant to the choice of law in international commercial contracts. The draft principles prepared by that group were considered at a Special Commission of the Hague Conference held November 12-16, 2012. Subsequently the working group of experts prepared a detailed draft commentary to accompany the draft principles.
In April, the Hague General Affairs Council is expected to either give its final endorsement of the complete package of the Principles and the Commentary, or it may submit the package to the Special Commission.
The Draft Hague Principles as approved by the November 2012 Special Commission meeting on choice of law in international contracts, and the draft commentary can be found at the
The purpose of this public meeting is to obtain the views of concerned stakeholders in advance of the Council meeting in April.
A member of the public needing reasonable accommodation should provide an email requesting such accommodation to
The Data from the public is requested pursuant to Public Law 99-399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107-56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. For further information please contact Tricia Smeltzer at
Office of the United States Trade Representative.
Notice.
For the purpose of U.S. Government procurement that is covered by Title III of the Trade Agreements Act of 1979, the effective date of the Protocol Amending the Agreement on Government Procurement, done at Geneva on 30 March 2012, World Trade Organization (WTO), is April 6, 2014, for the following Parties to the 1994 WTO Agreement on Government Procurement: Canada, Chinese Taipei, Hong Kong, Israel, Lichtenstein, Norway, European Union, Iceland, and Singapore.
Office of the United States Trade Representative, 600 17th Street NW., Washington, DC 20508.
Scott Pietan ((202) 395-9646), Director of International Procurement Policy, Office of the United States Trade Representative, 600 17th Street NW., Washington, DC 20508.
Executive Order 12260 (December 31, 1980) implements the 1979 and 1994 Agreement on Government Procurement, pursuant to Title III of the Trade Agreements Act of 1979 as amended (19 U.S.C. 2511-2518). In section 1-201 of Executive Order 12260, the President delegated to the United States Trade Representative the functions vested in the President by sections 301, 302, 304, 305(c) and 306 of the Trade Agreements Act of 1979 (19 U.S.C. 2511, 2512, 2514, 2515(c) and 2516).
The Protocol Amending the Agreement on Government Procurement, done at Geneva on 30 March 2012 (“Protocol”), will enter into force for those Parties to the WTO Agreement on Government Procurement (“Parties”), done at Marrakesh on 15 April 1994 (“1994 Agreement”), that have deposited their respective instruments of acceptance of the Protocol on the 30th day following the deposit by two-thirds (ten) of the Parties to the 1994 Agreement. Thereafter, the Protocol will enter into force for each Party to the 1994 Agreement which has deposited its instrument of acceptance, on the 30th day following the date of such deposit. The United States deposited its instrument of acceptance of the Protocol on December 2, 2013. On March 7, 2014, the tenth Party, Israel, deposited its instrument of acceptance to the Protocol. Therefore, the Protocol shall enter into force on April 6, 2014 for the United States and the following Parties: Canada, Chinese Taipei, Hong Kong, Israel, Lichtenstein, Norway, European Union, Iceland, and Singapore.
Pursuant to the Decision of the Committee on Government Procurement on Adoption of the Text of “The Protocol Amending the Agreement on Government Procurement”, the 1994 Agreement shall continue to apply as between a Party to the 1994 Agreement which is also a Party to the Protocol and a Party only to the 1994 Agreement. Therefore, effective April 6, 2014 and with respect to those Parties for which the Protocol has entered into force, all references in Title III of the Trade Agreement Act of 1979 and in Executive Order 12260 to the Agreement on Government Procurement shall refer to the 1994 Agreement as amended by the Protocol.
With respect to those Parties which have not deposited their instruments of acceptance, all references in Title III of the Trade Agreement Act of 1979 and in Executive Order 12260 to the Agreement on Government Procurement shall continue to refer to the 1994 Agreement until 30 days following the deposit by such Party of its instrument of acceptance of the Protocol.
For the full text of the Government Procurement Agreement as amended by the Protocol and the new annexes that set out the procurement covered by all of the Government Procurement Agreement Parties, see GPA-113:
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14, Code of Federal Regulations (14 CFR). The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of the FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number involved and must be received on or before April 7, 2014.
You may send comments identified by docket number FAA-2013-1095 using any of the following methods:
• Government-wide rulemaking Web site: Go to
• Mail: Send comments to the Docket Management Facility; U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590.
• Fax: Fax comments to the Docket Management Facility at 202-493-2251.
• Hand Delivery: Bring comments to the Docket Management Facility in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Mark Forseth, ANM-113, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057-3356, phone 425-306-7134, email
This notice is published pursuant to 14 CFR 11.85.
Federal Highway Administration (FHWA), DOT.
Notice of Limitation on Claims for Judicial Review of Actions by the California Department of Transportation (Caltrans), pursuant to 23 U.S.C. 327, and U.S. Army Corps of Engineers (USACE).
The FHWA, on behalf of Caltrans, is issuing this notice to announce actions taken by Caltrans, and U.S. Army Corps of Engineers (USACE) that are final within the meaning of 23 U.S.C. 139(l)(1). The actions relate to a proposed highway project, Interstate 80/Interstate 680/State Route 12 Interchange Project. The project is located in the vicinity of the city of Fairfield in Solano County, California along 13 miles of highway on I-80, I-680 and State Route 12 (Post Miles SOL-80 (PM 10.8/17.0); SOL-680 (PM 10.0/13.1); SOL-SR 12 (PM 1.7/L2.8); and SOL-SR 12 (PM L1.8/4.8). Those actions grant licenses, permits, and approvals for the project.
By this notice, the FHWA, on behalf of Caltrans, is advising the public of final agency actions subject to 23 U.S.C.139 (
Valerie Shearer, District Branch Chief, Caltrans District 4 Office of Environmental Analysis, 111 Grand Avenue, P.O. Box 23660, Oakland, CA 94623-0660, 8:00 a.m.-5:00 p.m., Pacific Standard Time, Telephone (510) 286-5594, email
Effective July 1, 2007, the Federal Highway Administration (FHWA) assigned, and the California Department of Transportation (Caltrans) assumed environmental responsibilities for this project pursuant to 23 U.S.C. 327. Notice is hereby given that Caltrans, and U.S. Army Corps of Engineers (USACE) has taken final agency actions subject to 23 U.S.C. 139(
This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the Lamont Doherty Earth Observatory (Observatory) in collaboration with the National Science Foundation (Foundation), for an Incidental Harassment Authorization (Authorization) to take marine mammals, by harassment incidental to conducting a marine geophysical (seismic) survey in the northwest Atlantic Ocean off the New Jersey coast June through July, 2014. The proposed dates for this action would be May 29, 2014 through August 17, 2014 to account for minor deviations due to logistics and weather. Per the Marine Mammal Protection Act, we are requesting comments on our proposal to issue an Authorization to the Observatory to incidentally take, by Level B harassment only, 26 species of marine mammals during the specified activity.
NMFS must receive comments and information on or before April 16, 2014.
Address comments on the application to Jolie Harrison, Supervisor, Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
To obtain an electronic copy of the application containing a list of the references used in this document, write to the previously mentioned address, telephone the contact listed here (see
The Foundation has prepared a draft Environmental Assessment (EA) in accordance with the National Environmental Policy Act (NEPA) and the regulations published by the Council on Environmental Quality. The EA titled “Draft Environmental Assessment of a Marine Geophysical Survey by the R/V Marcus G.
Jeannine Cody, NMFS, Office of Protected Resources, NMFS (301) 427-8401.
Section 101(a)(5)(D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
An Authorization shall be granted for the incidental taking of small numbers of marine mammals if NMFS finds that the taking will have a negligible impact on the species or stock(s), and will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant). The Authorization must also set forth the permissible methods of taking; other means of effecting the least practicable adverse impact on the species or stock and its habitat; and requirements pertaining to the mitigation, monitoring and reporting of such taking. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
On December 17, 2013, NMFS received an application from the Observatory requesting that we issue an Authorization for the take of marine mammals, incidental to conducting a seismic survey in the northwest Atlantic Ocean June through July, 2014. NMFS determined the application complete and adequate on February 3, 2014.
The Observatory proposes to conduct a high-energy, 3-dimensional (3-D) seismic survey on the R/V
The Observatory plans to use one source vessel, the R/V Marcus
The purpose of the survey is to collect and analyze data on the arrangement of sediments deposited during times of changing global sea level from roughly 60 million years ago to present. The 3-D survey would investigate features such as river valleys cut into coastal plain sediments now buried under a kilometer of younger sediment and flooded by today's ocean.
The Observatory proposes to conduct the seismic survey from the period of June 3 through July 9, 2014. The proposed study (e.g., equipment testing, startup, line changes, repeat coverage of any areas, and equipment recovery) would include approximately 720 hours of airgun operations (i.e., 30 days over 24 hours). Some minor deviation from the Observatory's requested dates of June through August, 2014, is possible, depending on logistics, weather conditions, and the need to repeat some lines if data quality is substandard. Thus, the proposed Authorization, if issued, would be effective from May 29, 2014 through August 17, 2014.
We refer the reader to the Detailed Description of Activities section later in this notice for more information on the scope of the proposed activities.
The Observatory proposes to conduct the seismic survey in the Atlantic Ocean, approximately 25 to 85 km (15.5 to 52.8 mi) off the coast of New Jersey between approximately 39.3-39.7° N and approximately 73.2-73.8° W (see Figure 1). Water depths in the survey area are approximately 30 to 75 m (98.4 to 246 feet (ft)). They would conduct the proposed survey outside of New Jersey state waters and within the U.S. Exclusive Economic Zone.
The
The survey would involve one source vessel, the R/V
The vessel's speed during seismic operations would be approximately 4.5 knots (kt) (8.3 km/hour (hr); 5.1 miles per hour (mph)). The vessel's cruising speed outside of seismic operations is approximately 10 kt (18.5 km/hr; 11.5 mph). While the
The vessel also has an observation tower from which protected species visual observers (observer) will watch for marine mammals before and during the proposed seismic acquisition operations. When stationed on the observation platform, the observer's eye level will be approximately 21.5 m (71 ft) above sea level providing the observer an unobstructed view around the entire vessel.
The chase vessel would be a multi-purpose offshore utility vessel similar to the
The proposed survey would cover approximately 4,900 km (3,045 mi) of transect lines within a 12 by 50 km (7.5 by 31 mi) area. Each transect line would have a spacing interval of 150 m (492 ft) in two 6-m (19.7-ft) wide race-track patterns.
During the survey, the
The airguns are a mixture of Bolt 1500LL and Bolt 1900LLX airguns ranging in size from 40 to 220 in
During the survey, the Observatory plans to use either a subarray with four airguns in one string or a subarray with a total of eight airguns in two strings on the vessel's port (left) side. The vessel's starboard (right) side would have an identical subarray configuration of either four airguns in one string or eight airguns in two strings to form the second source. The
Airguns function by venting high-pressure air into the water which creates an air bubble. The pressure signature of an individual airgun consists of a sharp rise and then fall in pressure, followed by several positive and negative pressure excursions caused by the oscillation of the resulting air bubble. The oscillation of the air bubble transmits sounds downward through the seafloor and there is also a reduction in the amount of sound transmitted in the near horizontal direction. However, the airgun array also emits sounds that travel horizontally toward non-target areas.
The nominal source levels of the airgun subarrays on the
Multibeam Echosounder: The
Each ping consists of eight (in water greater than 1,000 m; 3,280 ft) or four (in water less than 1,000 m; 3,280 ft) successive, fan-shaped transmissions, from two to 15 milliseconds (ms) in duration and each ensonifying a sector that extends 1° fore-aft. Continuous wave pulses increase from 2 to 15 ms long in water depths up to 2,600 m (8,530 ft). The echosounder uses frequency-modulated chirp pulses up to 100-ms long in water greater than 2,600 m (8,530 ft). The successive transmissions span an overall cross-track angular extent of about 150°, with 2-ms gaps between the pulses for successive sectors.
Sub-bottom Profiler: The
Acoustic Doppler Current Profiler: The Observatory would measure currents using a Teledyne OS75 75-kilohertz (kHz) Acoustic Doppler current profiler (ADCP). The ADCP's configuration consists of a 4-beam phased array with a beam angle of 30°. The source level is proprietary information but has a maximum acoustic source level of 224 dB.
Table 1 in this notice provides the following: All marine mammal species with possible or confirmed occurrence in the proposed activity area; information on those species' regulatory status under the MMPA and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); abundance; occurrence and seasonality in the activity area.
The Observatory presented species information in Table 2 of their application but excluded information on pinnipeds because they anticipated that these species would have a more northerly distribution during the summer and thus have a low likelihood of occurring in the survey area. Based on the best available information, NMFS expects that certain pinniped species have the potential to occur within the survey area and have included
NMFS refers the public to the Observatory's application, the Foundation's EA (see
This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., seismic airgun operations, vessel movement) impact marine mammals (via observations or scientific studies). This section may include a discussion of known effects that do not rise to the level of an MMPA take (for example, with acoustics, we may include a discussion of studies of animals exhibiting no reaction to sound or exhibiting barely perceptible avoidance behaviors). This discussion may also include reactions that NMFS considers to rise to the level of a take.
NMFS intends to provide a background of potential effects of the Observatory's activities in this section. This section does not consider the specific manner in which the Observatory would carry out the proposed activity, what mitigation measures the Observatory would implement, and how either of those would shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that we expect the Observatory to take during this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity would impact marine mammals. NMFS will consider the content of the following sections: (1) Estimated Take by Incidental Harassment; (3) Proposed Mitigation; and (4) Anticipated Effects on Marine Mammal Habitat, to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals—and from that consideration—the likely impacts of this activity on the affected marine mammal populations or stocks.
When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson
Southall
The functional groups applicable to this proposed survey and the associated frequencies are:
• Low frequency cetaceans (13 species of mysticetes): Functional hearing estimates occur between approximately 7 Hertz (Hz) and 30 kHz (extended from 22 kHz based on data indicating that some mysticetes can hear above 22 kHz; Au
• Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing estimates occur between approximately 150 Hz and 160 kHz;
• High-frequency cetaceans (eight species of true porpoises, six species of river dolphins,
• Pinnipeds in water: Phocid (true seals) functional hearing estimates occur between approximately 75 Hz and 100 kHz (Hemila
As mentioned previously in this document, 26 marine mammal species (6 mysticetes, 17 odontocetes, and 3 pinnipeds) would likely occur in the proposed action area. Table 2 presents the classification of these 26 species into their respective functional hearing group. We consider a species' functional hearing group when we analyze the effects of exposure to sound on marine mammals.
The effects of sounds from airgun operations might include one or more of the following: Tolerance, masking of natural sounds, behavioral disturbance, temporary or permanent impairment, or non-auditory physical or physiological effects (Richardson
Studies on marine mammals' tolerance to sound in the natural environment are relatively rare. Richardson
Numerous studies have shown that pulsed sounds from airguns are often readily detectable in the water at distances of many kilometers. Several studies have also shown that marine mammals at distances of more than a few kilometers from operating seismic vessels often show no apparent response. That is often true even in cases when the pulsed sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of the marine mammal group. Although various baleen whales and toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to airgun pulses under some conditions, at other times marine mammals of all three types have shown no overt reactions (Stone, 2003; Stone and Tasker, 2006; Moulton
Weir (2008) observed marine mammal responses to seismic pulses from a 24 airgun array firing a total volume of either 5,085 in
The term masking refers to the inability of a subject to recognize the occurrence of an acoustic stimulus as a result of the interference of another acoustic stimulus (Clark
Marine mammals use acoustic signals for a variety of purposes, which differ among species, but include communication between individuals, navigation, foraging, reproduction, avoiding predators, and learning about their environment (Erbe and Farmer, 2000; Tyack, 2000). Introduced underwater sound may, through masking, reduce the effective communication distance of a marine mammal species if the frequency of the source is close to that used as a signal by the marine mammal, and if the anthropogenic sound is present for a significant fraction of the time (Richardson
For the airgun sound generated from the proposed seismic survey, sound will consist of low frequency (under 500 Hz) pulses with extremely short durations (less than one second). Lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. Generally, the asking effects of the intermittent seismic pulses near the sound source should be minor due to the brief duration of these pulses and relatively long silent periods between air gun shots (approximately 12 seconds). However, at longer distances (over tens of kilometers away), due to multipath propagation and reverberation, the durations of airgun pulses can be “stretched” to seconds with long decays (Madsen
We expect that the masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds will be limited, although there are very few specific data on this. Because of the intermittent nature and low duty cycle of seismic airgun pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. However, in some situations, reverberation occurs for much or the entire interval between pulses (e.g., Simard
Marine mammals are thought to be able to compensate for masking by adjusting their acoustic behavior through shifting call frequencies, increasing call volume, and increasing vocalization rates. For example in one study, blue whales increased call rates when exposed to noise from seismic surveys in the St. Lawrence Estuary (Di Iorio and Clark, 2010). The North Atlantic right whales exposed to high shipping noise increased call frequency (Parks
Additionally, beluga whales change their vocalizations in the presence of high background noise possibly to avoid masking calls (Au
Redundancy and context can also facilitate detection of weak signals. These phenomena may help marine mammals detect weak sounds in the presence of natural or manmade noise. Most masking studies in marine mammals present the test signal and the masking noise from the same direction. The sound localization abilities of marine mammals suggest that, if signal and noise come from different directions, masking would not be as severe as the usual types of masking studies might suggest (Richardson
Toothed whales and probably other marine mammals as well, have additional capabilities besides directional hearing that can facilitate detection of sounds in the presence of background noise. There is evidence that some toothed whales can shift the dominant frequencies of their echolocation signals from a frequency range with a lot of ambient noise toward frequencies with less noise (Au
These data demonstrating adaptations for reduced masking pertain mainly to the very high frequency echolocation signals of toothed whales. There is less information about the existence of corresponding mechanisms at moderate or low frequencies or in other types of marine mammals. For example, Zaitseva
Marine mammals may behaviorally react to sound when exposed to anthropogenic noise. Disturbance includes a variety of effects, including subtle to conspicuous changes in behavior, movement, and displacement. Reactions to sound, if any, depend on species, state of maturity, experience, current activity, reproductive state, time of day, and many other factors (Richardson
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, one could expect the consequences of behavioral modification to be biologically significant if the change affects growth, survival, and/or reproduction. Some of these significant behavioral modifications include:
• Change in diving/surfacing patterns (such as those thought to be causing beaked whale stranding due to exposure to military mid-frequency tactical sonar);
• Habitat abandonment due to loss of desirable acoustic environment; and
• Cessation of feeding or social interaction.
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Richardson
The sound criteria used to estimate how many marine mammals might be disturbed to some biologically-important degree by a seismic program are based primarily on behavioral observations of a few species. Scientists have conducted detailed studies on humpback, gray, bowhead (
Studies of gray, bowhead, and humpback whales have shown that seismic pulses with received levels of 160 to 170 dB re: 1 μPa seem to cause obvious avoidance behavior in a substantial fraction of the animals exposed (Malme
Researchers have studied the responses of humpback whales to seismic surveys during migration, feeding during the summer months, breeding while offshore from Angola, and wintering offshore from Brazil. McCauley
Data collected by observers during several seismic surveys in the northwest Atlantic Ocean showed that sighting rates of humpback whales were significantly greater during non-seismic periods compared with periods when a full array was operating (Moulton and Holst, 2010). In addition, humpback whales were more likely to swim away and less likely to swim towards a vessel during seismic versus non-seismic periods (Moulton and Holst, 2010).
Humpback whales on their summer feeding grounds in southeast Alaska did not exhibit persistent avoidance when exposed to seismic pulses from a 1.64-L (100-in
Other studies have suggested that south Atlantic humpback whales wintering off Brazil may be displaced or even strand upon exposure to seismic surveys (Engel
A few studies have documented reactions of migrating and feeding (but not wintering) gray whales to seismic surveys. Malme
Observers have seen various species of
Ship-based monitoring studies of baleen whales (including blue, fin, sei, minke, and whales) in the northwest Atlantic found that overall, this group had lower sighting rates during seismic versus non-seismic periods (Moulton and Holst, 2010). Baleen whales as a group were also seen significantly farther from the vessel during seismic compared with non-seismic periods, and they were more often seen to be swimming away from the operating seismic vessel (Moulton and Holst, 2010). Blue and minke whales were initially sighted significantly farther from the vessel during seismic operations compared to non-seismic periods; the same trend was observed for fin whales (Moulton and Holst, 2010). Minke whales were most often observed to be swimming away from the vessel when seismic operations were underway (Moulton and Holst, 2010).
Data on short-term reactions by cetaceans to impulsive noises are not necessarily indicative of long-term or biologically significant effects. It is not known whether impulsive sounds affect reproductive rate or distribution and habitat use in subsequent days or years. However, gray whales have continued to migrate annually along the west coast of North America with substantial increases in the population over recent years, despite intermittent seismic exploration (and much ship traffic) in that area for decades (Appendix A in Malme
Seismic operators and protected species observers (observers) on seismic vessels regularly see dolphins and other small toothed whales near operating airgun arrays, but in general there is a tendency for most delphinids to show some avoidance of operating seismic vessels (e.g., Goold, 1996a,b,c; Calambokidis and Osmek, 1998; Stone, 2003; Moulton and Miller, 2005; Holst
Captive bottlenose dolphins and beluga whales (
Results for porpoises depend on species. The limited available data suggest that harbor porpoises (
Most studies of sperm whales exposed to airgun sounds indicate that the whale shows considerable tolerance of airgun pulses (e.g., Stone, 2003; Moulton
There are almost no specific data on the behavioral reactions of beaked whales to seismic surveys. However, some northern bottlenose whales (
Pinnipeds are not likely to show a strong avoidance reaction to the airgun sources proposed for use. Visual monitoring from seismic vessels has shown only slight (if any) avoidance of airguns by pinnipeds and only slight (if any) changes in behavior. Monitoring work in the Alaskan Beaufort Sea during 1996-2001 provided considerable information regarding the behavior of Arctic ice seals exposed to seismic pulses (Harris
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran
Researchers have studied temporary threshold shift in certain captive odontocetes and pinnipeds exposed to strong sounds (reviewed in Southall
The following physiological mechanisms are thought to play a role in inducing auditory TS: Effects to sensory hair cells in the inner ear that reduce their sensitivity, modification of the chemical environment within the sensory cells, residual muscular activity in the middle ear, displacement of certain inner ear membranes, increased blood flow, and post-stimulatory reduction in both efferent and sensory neural output (Southall
PTS is considered auditory injury (Southall
Although the published body of scientific literature contains numerous theoretical studies and discussion papers on hearing impairments that can occur with exposure to a loud sound, only a few studies provide empirical information on the levels at which noise-induced loss in hearing sensitivity occurs in nonhuman animals. For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery
Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS would occur during the proposed seismic survey in Cook Inlet. Cetaceans generally avoid the immediate area around operating seismic vessels, as do some other marine mammals. Some pinnipeds show avoidance reactions to airguns, but their avoidance reactions are generally not as strong or consistent as those of cetaceans, and occasionally they seem to be attracted to operating seismic vessels (NMFS, 2010).
Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg, 2000; Sapolsky
In the case of many stressors, an animal's first and most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response, which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effects on an animal's welfare.
An animal's third line of defense to stressors involves its neuroendocrine or sympathetic nervous systems; the system that has received the most study has been the hypothalmus-pituitary-adrenal system (also known as the HPA axis in mammals or the hypothalamus-pituitary-interrenal axis in fish and some reptiles). Unlike stress responses associated with the autonomic nervous system, the pituitary hormones regulate virtually all neuroendocrine functions affected by stress—including immune competence, reproduction, metabolism, and behavior. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg, 1987; Rivier, 1995), altered metabolism (Elasser
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that are quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic functions, which impair those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (sensu Seyle, 1950) or “allostatic loading” (sensu McEwen and Wingfield, 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiment; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton
For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (e.g., elevated respiration and increased heart rates). Jones (1998) reported on reductions in human performance when faced with acute, repetitive exposures to acoustic disturbance. Trimper
Hearing is one of the primary senses marine mammals use to gather information about their environment and communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, we assume that reducing a marine mammal's ability to gather information about its environment and communicate with other members of its species would induce stress, based on data that terrestrial animals exhibit those responses under similar conditions (NRC, 2003) and because marine mammals use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses. More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg, 2000), NMFS also assumes that stress responses could persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS. However, as stated previously in this document, the source levels of the drillships are not loud enough to induce PTS or likely even TTS.
Resonance effects (Gentry, 2002) and direct noise-induced bubble formations (Crum
In general, there are few data about the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. Such effects, if they occur at all, would presumably be limited to short distances and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall
When a living or dead marine mammal swims or floats onto shore and becomes “beached” or incapable of returning to sea, the event is a “stranding” (Geraci
Marine mammals strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in series. However, the cause or causes of most strandings are unknown (Geraci
The Observatory would operate the Kongsberg EM 122 multibeam echosounder from the source vessel during the planned study. Sounds from the multibeam echosounder are very short pulses, occurring for two to 15 ms once every five to 20 s, depending on water depth. Most of the energy in the sound pulses emitted by this echosounder is at frequencies near 12 kHz, and the maximum source level is 242 dB re: 1 μPa. The beam is narrow (1 to 2°) in fore-aft extent and wide (150°) in the cross-track extent. Each ping consists of eight (in water greater than 1,000 m deep) or four (less than 1,000 m deep) successive fan-shaped transmissions (segments) at different cross-track angles. Any given mammal at depth near the trackline would be in the main beam for only one or two of the segments. Also, marine mammals that encounter the Kongsberg EM 122 are unlikely to be subjected to repeated pulses because of the narrow fore-aft width of the beam and will receive only limited amounts of pulse energy because of the short pulses. Animals close to the vessel (where the beam is narrowest) are especially unlikely to be ensonified for more than one 2- to 15-ms pulse (or two pulses if in the overlap area). Similarly, Kremser
Navy sonars linked to avoidance reactions and stranding of cetaceans: (1) Generally have longer pulse duration than the Kongsberg EM 122; and (2) are often directed close to horizontally versus more downward for the echosounder. The area of possible influence of the echosounder is much smaller—a narrow band below the source vessel. Also, the duration of exposure for a given marine mammal can be much longer for naval sonar. During the Observatory's operations, the individual pulses will be very short, and a given mammal would not receive many of the downward-directed pulses as the vessel passes by the animal. The
Captive bottlenose dolphins and a beluga whale exhibited changes in behavior when exposed to 1-s tonal signals at frequencies similar to those emitted by the Observatory's echosounder, and to shorter broadband pulsed signals. Behavioral changes typically involved what appeared to be deliberate attempts to avoid the sound exposure (Schlundt
Based upon the best available science, we believe that the brief exposure of marine mammals to one pulse, or small numbers of signals, from the echosounder is not likely to result in the harassment of marine mammals.
The Observatory would also operate a sub-bottom profiler from the source vessel during the proposed survey. The profiler's sounds are very short pulses, occurring for one to four ms once every second. Most of the energy in the sound pulses emitted by the profiler is at 3.5 kHz, and the beam is directed downward. The sub-bottom profiler on the
Vessel movement in the vicinity of marine mammals has the potential to result in either a behavioral response or a direct physical interaction. Both scenarios are discussed below this section.
There are limited data concerning marine mammal behavioral responses to vessel traffic and vessel noise, and a lack of consensus among scientists with respect to what these responses mean or whether they result in short-term or long-term adverse effects. In those cases where there is a busy shipping lane or where there is a large amount of vessel traffic, marine mammals may experience acoustic masking (Hildebrand, 2005) if they are present in the area (e.g., killer whales in Puget Sound; Foote
Behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors, such as species, behavioral contexts, geographical regions, source characteristics (moving or stationary, speed, direction, etc.), prior experience of the animal and physical status of the animal. For example, studies have shown that beluga whales' reactions varied when exposed to vessel noise and traffic. In some cases, naive beluga whales exhibited rapid swimming from ice-breaking vessels up to 80 km (49.7 mi) away, and showed changes in surfacing, breathing, diving, and group composition in the Canadian high Arctic where vessel traffic is rare (Finley
In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: Habituation often occurred rapidly, attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales changed from frequent positive interest (e.g., approaching vessels) to generally uninterested reactions; fin whales changed from mostly negative (e.g., avoidance) to uninterested reactions; right whales apparently continued the same variety of responses (negative, uninterested, and positive responses) with little change; and humpbacks dramatically changed from mixed responses that were often negative to reactions that were often strongly positive. Watkins (1986) summarized that “whales near shore, even in regions with low vessel traffic, generally have become less wary of boats and their noises, and they have appeared to be less easily disturbed than previously. In particular locations with intense shipping and repeated approaches by boats (such as the whale-watching areas of Stellwagen Bank), more and more whales had positive reactions to familiar vessels, and they also occasionally approached other boats and yachts in the same ways.”
Although the radiated sound from the
Ship strikes of cetaceans can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or an animal just below the surface could be cut by a vessel's propeller. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus, 2001; Laist
The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., the sperm whale). In addition, some baleen whales, such as the North Atlantic right whale, seem generally unresponsive to vessel sound, making them more susceptible to vessel collisions (Nowacek
An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus, 2001; Laist
Entanglement can occur if wildlife becomes immobilized in survey lines, cables, nets, or other equipment that is moving through the water column. The proposed seismic survey would require towing approximately 8.0 km (4.9 mi) of equipment and cables. This large of an array carries the risk of entanglement for marine mammals. Wildlife, especially slow moving individuals, such as large whales, have a low probability of entanglement due to slow speed of the survey vessel and onboard monitoring efforts. The Observatory has no recorded cases of entanglement of marine mammals during the conduct of over 8 years of seismic surveys covering over 160,934 km (86,897.4 nmi) of transect lines.
In May, 2011, there was one recorded entanglement of an olive ridley sea turtle (
The primary potential impacts to marine mammal habitat and other marine species are associated with elevated sound levels produced by airguns and other active acoustic sources. This section describes the potential impacts to marine mammal habitat from the specified activity.
One reason for the adoption of airguns as the standard energy source for marine seismic surveys is that, unlike explosives, they have not been associated with large-scale fish kills. However, existing information on the impacts of seismic surveys on marine fish populations is limited. There are three types of potential effects of exposure to seismic surveys: (1) Pathological, (2) physiological, and (3) behavioral. Pathological effects involve lethal and temporary or permanent sub-lethal injury. Physiological effects involve temporary and permanent primary and secondary stress responses, such as changes in levels of enzymes and proteins. Behavioral effects refer to temporary and (if they occur) permanent
The specific received sound levels at which permanent adverse effects to fish potentially could occur are little studied and largely unknown. Furthermore, the available information on the impacts of seismic surveys on marine fish is from studies of individuals or portions of a population; there have been no studies at the population scale. The studies of individual fish have often been on caged fish that were exposed to airgun pulses in situations not representative of an actual seismic survey. Thus, available information provides limited insight on possible real-world effects at the ocean or population scale.
Hastings and Popper (2005), Popper (2009), and Popper and Hastings (2009a,b) provided recent critical reviews of the known effects of sound on fish. The following sections provide a general synopsis of the available information on the effects of exposure to seismic and other anthropogenic sound as relevant to fish. The information comprises results from scientific studies of varying degrees of rigor plus some anecdotal information. Some of the data sources may have serious shortcomings in methods, analysis, interpretation, and reproducibility that must be considered when interpreting their results (see Hastings and Popper, 2005). Potential adverse effects of the program's sound sources on marine fish are noted.
There are few data about the mechanisms and characteristics of damage impacting fish that by exposure to seismic survey sounds. Peer-reviewed scientific literature has presented few data on this subject. NMFS is aware of only two papers with proper experimental methods, controls, and careful pathological investigation that implicate sounds produced by actual seismic survey airguns in causing adverse anatomical effects. One such study indicated anatomical damage, and the second indicated temporary threshold shift in fish hearing. The anatomical case is McCauley
Wardle
The National Park Service conducted an experiment of the effects of a single 700 in
For a proposed seismic survey in Southern California, USGS (1999) conducted a review of the literature on the effects of airguns on fish and fisheries. They reported a 1991 study of the Bay Area Fault system from the continental shelf to the Sacramento River, using a 10 airgun (5,828 in
Some studies have reported, some equivocally, that mortality of fish, fish eggs, or larvae can occur close to seismic sources (Kostyuchenko, 1973; Dalen and Knutsen, 1986; Booman
The Minerals Management Service (MMS, 2005) assessed the effects of a proposed seismic survey in Cook Inlet, Alaska. The seismic survey proposed using three vessels, each towing two, four-airgun arrays ranging from 1,500 to 2,500 in
In general, any adverse effects on fish behavior or fisheries attributable to seismic testing may depend on the species in question and the nature of the fishery (season, duration, fishing method). They may also depend on the age of the fish, its motivational state, its size, and numerous other factors that are difficult, if not impossible, to quantify at this point, given such limited data on effects of airguns on fish, particularly under realistic at-sea conditions.
The existing body of information on the impacts of seismic survey sound on marine invertebrates is very limited. However, there is some unpublished and very limited evidence of the potential for adverse effects on invertebrates, thereby justifying further discussion and analysis of this issue. The three types of potential effects of exposure to seismic surveys on marine invertebrates are pathological, physiological, and behavioral. Based on the physical structure of their sensory organs, marine invertebrates appear to be specialized to respond to particle displacement components of an impinging sound field and not to the pressure component (Popper
The only information available on the impacts of seismic surveys on marine invertebrates involves studies of individuals; there have been no studies at the population scale. Thus, available information provides limited insight on possible real-world effects at the regional or ocean scale. The most important aspect of potential impacts concerns how exposure to seismic survey sound ultimately affects invertebrate populations and their viability, including availability to fisheries.
Moriyasu
Some studies have suggested that seismic survey sound has a limited pathological impact on early developmental stages of crustaceans (Pearson
Tenera Environmental (2011b) reported that Norris and Mohl (1983, summarized in Mariyasu
Andre
Based on the preceding discussion, NMFS does not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
The Observatory has reviewed the following source documents and has incorporated a suite of proposed mitigation measures into their project description.
(1) Protocols used during previous Foundation and Observatory-funded seismic research cruises as approved by us and detailed in the Foundation's 2011 PEIS and 2013 EA;
(2) Previous incidental harassment authorizations applications and authorizations that we have approved and authorized; and
(3) Recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, the Observatory, and/or its designees have proposed to implement the following mitigation measures for marine mammals:
(1) Vessel-based visual mitigation monitoring;
(2) Proposed exclusion zones;
(3) Power down procedures;
(4) Shutdown procedures;
(5) Ramp-up procedures; and
(6) Speed and course alterations.
The Observatory would position observers aboard the seismic source vessel to watch for marine mammals near the vessel during daytime airgun operations and during any start-ups at night. Observers would also watch for marine mammals near the seismic vessel for at least 30 minutes prior to the start of airgun operations after an extended shutdown (i.e., greater than approximately eight minutes for this proposed cruise). When feasible, the observers would conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavior with and without airgun operations and between acquisition periods. Based on the observations, the
During seismic operations, at least four protected species observers would be aboard the
Two observers on the
The
When the observers see marine mammals within or about to enter the designated exclusion zone, the
The 180- or 190-dB level shutdown criteria are applicable to cetaceans as specified by NMFS (2000). The Observatory used these levels to establish the exclusion zones.
If the protected species visual observer detects marine mammal(s) within or about to enter the appropriate exclusion zone, the
If the observer detects a marine mammal outside the exclusion zone and the animal is likely to enter the zone, the crew would power down the airguns to reduce the size of the 180- or 190-dB exclusion zone before the animal enters that zone. Likewise, if a mammal is already within the zone after detection, the crew would power-down the airguns immediately. During a power down of the airgun array, the crew would operate a single 40-in
Resuming Airgun Operations After a Power Down—Following a power-down, the
• The observer has visually observed the animal leave the exclusion zone; or
• An observer has not sighted the animal within the exclusion zone for 15 minutes for species with shorter dive durations (i.e., small odontocetes or pinnipeds), or 30 minutes for species with longer dive durations (i.e., mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, and beaked whales); or
The
We estimate that the
(1) If an animal enters the exclusion zone of the single airgun after the crew has initiated a power down; or
(2) If an observer sees the animal is initially within the exclusion zone of the single airgun when more than one airgun (typically the full airgun array) is operating.
Considering the conservation status for north Atlantic right whales, the
Resuming Airgun Operations After a Shutdown—Following a shutdown in excess of eight minutes, the
During periods of active seismic operations, there are occasions when the
If the full exclusion zone is not visible to the observer for at least 30 minutes prior to the start of operations in either daylight or nighttime, the
If one airgun has operated during a power down period, ramp-up to full power would be permissible at night or in poor visibility, on the assumption that marine mammals would be alerted to the approaching seismic vessel by the sounds from the single airgun and could move away. The vessel's crew would not initiate a ramp-up of the airguns if an observer sees the marine mammal within or near the applicable exclusion zones during the day or close to the vessel at night.
Ramp-up would begin with the smallest airgun in the array (40 in
If the complete exclusion zone has not been visible for at least 30 minutes prior to the start of operations in either daylight or nighttime, the Observatory would not commence the ramp-up unless at least one airgun (40 in
If during seismic data collection, the Observatory detects marine mammals outside the exclusion zone and, based on the animal's position and direction of travel, is likely to enter the exclusion zone, the
NMFS has carefully evaluated the Observatory's proposed mitigation measures in the context of ensuring that we prescribe the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to airgun operations that we expect to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on the evaluation of the Observatory's proposed measures, as well as other measures considered, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for Authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that we expect to be present in the proposed action area.
The Observatory submitted a marine mammal monitoring plan in section XIII of the Authorization application. NMFS or the Observatory may modify or supplement the plan based on comments or new information received from the public during the public comment period.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and during other times and locations, in order to generate more data to contribute to the analyses mentioned later;
2. An increase in our understanding of how many marine mammals would be affected by seismic airguns and other active acoustic sources and the likelihood of associating those exposures with specific adverse effects, such as behavioral harassment, temporary or permanent threshold shift;
3. An increase in our understanding of how marine mammals respond to stimuli that we expect to result in take and how those anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:
a. Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information);
b. Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (i.e., we need to be able to accurately predict received level, distance from source, and other pertinent information);
c. Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;
4. An increased knowledge of the affected species; and
5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.
The Observatory proposes to sponsor marine mammal monitoring during the present project to supplement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the Authorization. The Observatory understands that NMFS would review the monitoring plan and may require refinements to the plan.
The Observatory planned the monitoring work as a self-contained project independent of any other related monitoring projects that may occur in the same regions at the same time. Further, the Observatory is prepared to discuss coordination of its monitoring program with any other related work that might be conducted by other groups working insofar as it is practical for the Observatory.
Passive acoustic monitoring would complement the visual mitigation monitoring program, when practicable. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Passive acoustical monitoring can improve detection, identification, and localization of cetaceans when used in conjunction with visual observations. The passive acoustic monitoring would serve to alert visual observers (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. The acoustic observer would monitor the system in real time so that he/she can advise the visual observers if they acoustic detect cetaceans.
The passive acoustic monitoring system consists of hardware (i.e., hydrophones) and software. The “wet end” of the system consists of a towed hydrophone array connected to the vessel by a tow cable. The tow cable is 250 m (820.2 ft) long and the hydrophones are fitted in the last 10 m (32.8 ft) of cable. A depth gauge, attached to the free end of the cable, which is typically towed at depths less than 20 m (65.6 ft). The
One acoustic observer, an expert bioacoustician with primary responsibility for the passive acoustic monitoring system would be aboard the
One acoustic observer would monitor the acoustic detection system by listening to the signals from two channels via headphones and/or speakers and watching the real-time spectrographic display for frequency ranges produced by cetaceans. The observer monitoring the acoustical data would be on shift for one to six hours at a time. The other observers would rotate as an acoustic observer, although the expert acoustician would be on passive acoustic monitoring duty more frequently.
When the acoustic observer detects a vocalization while visual observations are in progress, the acoustic observer on duty would contact the visual observer immediately, to alert him/her to the presence of cetaceans (if they have not already been seen), so that the vessel's crew can initiate a power down or shutdown, if required. The observer would enter the information regarding the call into a database. Data entry would include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm
Observers would record data to estimate the numbers of marine mammals exposed to various received sound levels and to document apparent disturbance reactions or lack thereof. They would use the data to estimate numbers of animals potentially `taken' by harassment (as defined in the MMPA). They will also provide information needed to order a power down or shut down of the airguns when a marine mammal is within or near the exclusion zone.
When an observer makes a sighting, they will record the following information:
1. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (e.g., none, avoidance, approach, paralleling, etc.), and behavioral pace.
2. Time, location, heading, speed, activity of the vessel, sea state, visibility, and sun glare.
The observer will record the data listed under (2) at the start and end of each observation watch, and during a watch whenever there is a change in one or more of the variables.
Observers will record all observations and power downs or shutdowns in a standardized format and will enter data into an electronic database. The observers will verify the accuracy of the data entry by computerized data validity checks during data entry and by subsequent manual checking of the database. These procedures will allow the preparation of initial summaries of data during and shortly after the field program, and will facilitate transfer of the data to statistical, graphical, and other programs for further processing and archiving.
Results from the vessel-based observations will provide:
1. The basis for real-time mitigation (airgun power down or shutdown).
2. Information needed to estimate the number of marine mammals potentially taken by harassment, which the Observatory must report to the Office of Protected Resources.
3. Data on the occurrence, distribution, and activities of marine mammals and turtles in the area where the Observatory would conduct the seismic study.
4. Information to compare the distance and distribution of marine mammals and turtles relative to the source vessel at times with and without seismic activity.
5. Data on the behavior and movement patterns of marine mammals detected during non-active and active seismic operations.
The Observatory would submit a report to us and to the Foundation within 90 days after the end of the cruise. The report would describe the operations conducted and sightings of marine mammals and turtles near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that could result in “takes” of marine mammals by harassment or in other ways.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Observatory shall immediately cease the specified activities and immediately report the take to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Observatory shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Observatory to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Observatory may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Observatory will immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Observatory would report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine
Acoustic stimuli (i.e., increased underwater sound) generated during the operation of the airgun sub-arrays may have the potential to result in the behavioral disturbance of some marine mammals. Thus, NMFS proposes to authorize take by Level B harassment resulting from the operation of the sound sources for the proposed seismic survey based upon the current acoustic exposure criteria shown in Table 4. Our practice has been to apply the 160 dB re: 1 µPa received level threshold for underwater impulse sound levels to determine whether take by Level B harassment occurs. Southall
The probability of vessel and marine mammal interactions (i.e., ship strike) occurring during the proposed survey is unlikely due to the
The Observatory did not estimate any additional take allowance for animals that could be affected by sound sources other than the airgun. NMFS does not expect that the sound levels produced by the echosounder, sub-bottom profiler, and ADCP would exceed by the sound levels produced by the airguns for the majority of the time. Because of the beam pattern and directionality of these sources, combined with their lower source levels, it is not likely that these sources would take marine mammals independently from the takes that the Observatory has estimated to result from airgun operations. Therefore, NMFS does not believe it is necessary to authorize additional takes for these sources for the action at this time. NMFS is currently evaluating the broader use of these types of sources to determine under what specific circumstances coverage for incidental take would or would not be advisable. NMFS is working on guidance that would outline a consistent recommended approach for applicants to address the potential impacts of these types of sources.
NMFS considers the probability for entanglement of marine mammals as low because of the vessel speed and the monitoring efforts onboard the survey vessel. Therefore, NMFS does not believe it is necessary to authorize additional takes for entanglement at this time.
There is no evidence that planned activities could result in serious injury or mortality within the specified geographic area for the requested Authorization. The required mitigation and monitoring measures would minimize any potential risk for serious injury or mortality.
The following sections describe the Observatory's methods to estimate take by incidental harassment. The Observatory based their estimates on the number of marine mammals that could be harassed by seismic operations with the airgun sub-array during approximately 4,900 km
Because the Observatory assumes that the
Table 3 of their application presents their estimates of the number of different individual marine mammals that could potentially experience exposures greater than or equal to 160 dB re: 1 μPa (rms) during the seismic survey if no animals moved away from the survey vessel. The Observatory used the Strategic Environmental Research and Development Program's (SERDP) spatial decision support system (SDSS) Marine Animal Model Mapper tool (Read et al. 2009) to calculate cetacean densities within the survey area based on the U.S. Navy's “OPAREA Density Estimates” (NODE) model (DoN, 2007). The NODE model derives density estimates using density surface modeling of the existing line-transect
For the proposed Authorization, NMFS has reviewed the Observatory's take estimates presented in Table 3 of their application and has revised take calculations for several species based upon the best available density information from SERDP SDSS and other sources. These include takes for blue, fin, humpback, minke, north Atlantic right, and sei whales; harbor porpoise; and gray, harbor, and harp seals. Table 5 presents the revised estimates of the possible numbers of marine mammals exposed to sound levels greater than or equal to 160 dB re: 1 μPa during the proposed seismic survey.
The Observatory would coordinate the planned marine mammal monitoring program associated with the seismic survey in the northwest Atlantic Ocean with applicable U.S. agencies.
Negligible impact' is “an impact resulting from the specified activity that
In making a negligible impact determination, NMFS considers:
• The number of anticipated injuries, serious injuries, or mortalities;
• The number, nature, and intensity, and duration of Level B harassment; and
• The context in which the takes occur (e.g., impacts to areas of significance, impacts to local populations, and cumulative impacts when taking into account successive/contemporaneous actions when added to baseline data);
• The status of stock or species of marine mammals (i.e., depleted, not depleted, decreasing, increasing, stable, impact relative to the size of the population);
• Impacts on habitat affecting rates of recruitment/survival; and
• The effectiveness of monitoring and mitigation measures to reduce the number or severity of incidental take.
For reasons stated previously in this document and based on the following factors, the Observatory's specified activities are not likely to cause long-term behavioral disturbance, permanent threshold shift, or other non-auditory injury, serious injury, or death. They include:
• The likelihood that, given sufficient notice through relatively slow ship speed, we expect marine mammals to move away from a noise source that is annoying prior to its becoming potentially injurious;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the operation of the airgun(s) to avoid acoustic harassment;
• The relatively low potential for temporary or permanent hearing impairment and the likelihood that the Observatory would avoid this impact through the incorporation of the required monitoring and mitigation measures (including power-downs and shutdowns); and
• The likelihood that marine mammal detection ability by trained visual observers is high at close proximity to the vessel.
NMFS does not anticipate that any injuries, serious injuries, or mortalities would occur as a result of the Observatory's proposed activities, and NMFS does not propose to authorize injury, serious injury, or mortality at this time. We anticipate only behavioral disturbance to occur during the conduct of the survey activities.
Table 5 in this document outlines the number of requested Level B harassment takes that we anticipate as a result of these activities. NMFS anticipates that 26 marine mammal species (6 mysticetes, 17 odontocetes, and 3 pinnipeds) would likely occur in the proposed action area. Of the 24 marine mammal species under our jurisdiction that are known to occur or likely to occur in the study area, six of these species are listed as endangered under the ESA and depleted under the MMPA, including: The blue, fin, humpback, north Atlantic right, sei, and sperm whales.
Due to the nature, degree, and context of Level B (behavioral) harassment anticipated and described (see “Potential Effects on Marine Mammals” section in this notice), we do not expect the activity to impact rates of recruitment or survival for any affected species or stock. In addition, the seismic surveys would not take place in areas of significance for marine mammal feeding, resting, breeding, or calving and would not adversely impact marine mammal habitat.
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Based on this notice's analysis of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the Observatory's proposed seismic survey would have a negligible impact on the affected marine mammal species or stocks.
As mentioned previously, NMFS estimates that the Observatory's activities could potentially affect, by Level B harassment only, 26 species of marine mammals under our jurisdiction. For each species, these estimates are small numbers (each, less than or equal to four percent) relative to the population size and we have provided the regional population estimates for the marine mammal species that may be taken by Level B harassment in Table 5 in this notice.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that the Observatory's proposed activity would take small numbers of marine mammals relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action.
There are six marine mammal species that may occur in the proposed survey area, several are listed as endangered under the Endangered Species Act, including the blue, fin, humpback, north Atlantic right, sei, and sperm whales. Under section 7 of the ESA, the Foundation has initiated formal consultation with NMFS on the proposed seismic survey. NMFS (i.e., National Marine Fisheries Service, Office of Protected Resources, Permits and Conservation Division) will also consult internally with NMFS on the proposed issuance of an Authorization under section 101(a)(5)(D) of the MMPA. NMFS and the Foundation will conclude the consultation prior to a determination on the issuance of the Authorization.
The Foundation has prepared a draft EA titled “Draft Environmental Assessment of a Marine Geophysical Survey by the R/V
As a result of these preliminary determinations, NMFS proposes issuing an Authorization to the Observatory for conducting a seismic survey in the northwest Atlantic Ocean off the New Jersey coast May 29, 2014 through August 17, 2014, provided they incorporate the previously mentioned mitigation, monitoring, and reporting requirements.
This section contains the draft text for the proposed Authorization. NMFS proposes to include this language in the Authorization if issued.
We hereby authorize the Lamont-Doherty Earth Observatory (Observatory), Columbia University, P.O. Box 1000, 61 Route 9W, Palisades, New York 10964-8000, under section 101(a)(5)(D) of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1371(a)(5)(D)) and 50 CFR 216.107, to incidentally harass small numbers of marine mammals incidental to a marine geophysical survey conducted by the R/V
This Authorization is valid from May 29, 2014 through August 17, 2014.
This Authorization is valid only for specified activities associated with the R/V Marcus G. Langseth's (
a. In the Atlantic Ocean bounded by the following coordinates: Approximately 25 to 85 km (15.5 to 52.8 mi) off the coast of New Jersey between approximately 39.3-39.7° N and approximately 73.2-73.8° W as specified in the Observatory's application and the National Science Foundation's environmental analysis.
a. This authorization limits the incidental taking of marine mammals, by Level B harassment only, to the following species in the area described in Condition 2(a):
i. Mysticetes—3 north Atlantic right whales; 2 humpback whales; 2 common minke whales; 2 sei whales; 2 fin whales; and 17 blue whales.
ii. Odontocetes—18 sperm whales; 2 dwarf sperm whales; 2 pygmy sperm whales; 3 Cuvier's beaked whales; 3 Gervais beaked whales; 3 Sowerby's beaked whales; 3 unidentified Mesoplodon species (includes True's and Blainville beaked and northern bottlenose whales); 279 bottlenose dolphins (coastal or pelagic); 90 Atlantic spotted dolphins; 47 striped dolphins; 18 short-beaked common dolphins; 15 Atlantic white-sided dolphins; 35 Risso's dolphins; 9 long-finned pilot whales; 9 short-finned pilot whales; and 2 harbor porpoises.
iii. Pinnipeds—8 gray seals; 112 harbor seals; and 4 harp seals.
iv. During the seismic activities, if the Holder of this Authorization encounters any marine mammal species that are not listed in Condition 3 for authorized taking and are likely to be exposed to sound pressure levels greater than or equal to 160 decibels (dB) re: 1 μPa, then the Holder must alter speed or course or shut-down the airguns to avoid take.
b. This Authorization prohibits the taking by injury (Level A harassment), serious injury, or death of any of the species listed in Condition 3 or the taking of any kind of any other species of marine mammal. Thus, it may result in the modification, suspension or revocation of this Authorization.
c. This Authorization limits the methods authorized for taking by Level B harassment to the following acoustic sources without an amendment to this Authorization:
i. A sub-airgun array with a total capacity of 1,700 in
ii. an acoustic Doppler current profiler;
iii. a multi-beam echosounder; and
iv. a sub-bottom profiler.
The Holder of this Authorization must report the taking of any marine mammal in a manner prohibited under this Authorization immediately to the Office of Protected Resources, National Marine Fisheries Service, at 301-427-8401 and/or by email to
We require the Holder of this Authorization to cooperate with the Office of Protected Resources, National Marine Fisheries Service, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals.
We require the Holder of this Authorization to implement the following mitigation and monitoring requirements when conducting the specified activities to achieve the least practicable adverse impact on affected marine mammal species or stocks:
a. Utilize two, National Marine Fisheries Service-qualified, vessel-based Protected Species Visual Observers (visual observers) to watch for and monitor marine mammals near the seismic source vessel during daytime airgun operations (from civil twilight-dawn to civil twilight-dusk) and before and during start-ups of airguns day or night.
i. At least one visual observer will be on watch during meal times and restroom breaks.
ii. Observer shifts will last no longer than four hours at a time.
iii. Visual observers will also conduct monitoring while the
iv. When feasible, visual observers will conduct observations during daytime periods when the seismic system is not operating for comparison of sighting rates and behavioral reactions during, between, and after airgun operations.
v. The
b. Establish a 180-decibel (dB) or 190-dB exclusion zone (zone) for cetaceans and pinnipeds, respectively before starting the airgun subarray (1,700 in
c. Monitor the entire extent of the zones for at least 30 minutes (day or night) prior to the ramp-up of airgun operations after a shutdown.
d. Delay airgun operations if the visual observer sees a cetacean within the 180-dB zone for cetaceans or 190-dB zone for pinnipeds until the marine mammal(s) has left the area.
i. If the visual observer sees a marine mammal that surfaces, then dives below the surface, the observer shall wait 30 minutes. If the observer sees no marine mammals during that time, he/she should assume that the animal has moved beyond the 180-dB zone for cetaceans or 190-dB zone for pinnipeds.
ii. If for any reason the visual observer cannot see the full 180-dB zone for cetaceans or the 190-dB zone for pinnipeds for the entire 30 minutes (
iii. If one airgun is already running at a source level of at least 180 dB re: 1 μPa or 190 dB re: 1 μPa, the
e. Utilize the passive acoustic monitoring (PAM) system, to the maximum extent practicable, to detect and allow some localization of marine mammals around the
f. Do and record the following when an observer detects an animal by the PAM:
i. Notify the visual observer immediately of a vocalizing marine mammal so a power-down or shut-down can be initiated, if required;
ii. Enter the information regarding the vocalization into a database. The data to be entered include an acoustic encounter identification number, whether it was linked with a visual sighting, date, time when first and last heard and whenever any additional information was recorded, position, and water depth when first detected, bearing if determinable, species or species group (e.g., unidentified dolphin, sperm whale), types and nature of sounds heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst pulses, strength of signal, etc.), and any other notable information.
g. Implement a “ramp-up” procedure when starting the airguns at the beginning of seismic operations or anytime after the entire array has been shutdown, which means start the smallest gun first and add airguns in a sequence such that the source level of the array will increase in steps not exceeding approximately 6 dB per 5-minute period. During ramp-up, the observers will monitor the exclusion zone, and if marine mammals are sighted, a course/speed alteration, power-down, or shutdown will be implemented as though the full array were operational.
h. Visual observers must record the following information when they have sighted a marine mammal:
i. Species, group size, age/size/sex categories (if determinable), behavior when first sighted and after initial sighting, heading (if consistent), bearing and distance from seismic vessel, sighting cue, apparent reaction to the airguns or vessel (
ii. Time, location, heading, speed, activity of the vessel (including number of airguns operating and whether in state of ramp-up or shut-down), Beaufort sea state and wind force, visibility, and sun glare; and
iii. The data listed under 6(f)(ii) at the start and end of each observation watch and during a watch whenever there is a change in one or more of the variables.
i. Alter speed or course during seismic operations if a marine mammal, based on its position and relative motion, appears likely to enter the relevant exclusion zone. If speed or course alteration is not safe or practicable, or if after alteration the marine mammal still appears likely to enter the exclusion zone, the Holder of this Authorization will implement further mitigation measures, such as a shutdown.
j. Power down the airguns if a visual observer detects a marine mammal within, approaching, or entering the relevant exclusion zones. A power-down means reducing the number of operating airguns to a single operating 40 in
k. Following a power-down, if the marine mammal approaches the smaller designated exclusion zone, the airguns must then be completely shut-down. Airgun activity will not resume until the observer has visually observed the marine mammal(s) exiting the exclusion zone and is not likely to return, or has not been seen within the exclusion zone for 15 minutes for species with shorter dive durations (small odontocetes) or 30 minutes for species with longer dive durations (mysticetes and large odontocetes, including sperm, pygmy sperm, dwarf sperm, killer, and beaked whales).
l. Following a power-down and subsequent animal departure, the
m. Shutdown the airgun(s) if a visual observer detects a marine mammal within, approaching, or entering the relevant exclusion zone. A shutdown means that the
n. If a North Atlantic right whale (
o. Following a shutdown, if the observer has visually confirmed that the animal has departed the 180-dB zone for cetaceans or the 190-dB zone for pinnipeds within a period of less than
p. Else, if the observer has not seen the animal depart the 180-dB zone for cetaceans or the 190-dB zone for pinnipeds, the
q. The
r. This Authorization does not permit the Holder of this Authorization to initiate airgun array operations from a shut-down position at night or during low-light hours (such as in dense fog or heavy rain) when the visual observers cannot view and effectively monitor the full relevant exclusion zones.
s. To the maximum extent practicable, the Holder of this Authorization should schedule seismic operations (
t. The
This Authorization requires the Holder of this Authorization to:
a. Submit a draft report on all activities and monitoring results to the Office of Protected Resources, National Marine Fisheries Service, within 90 days of the completion of the
i. Dates, times, locations, heading, speed, weather, sea conditions (including Beaufort sea state and wind force), and associated activities during all seismic operations and marine mammal sightings;
ii. Species, number, location, distance from the vessel, and behavior of any marine mammals, as well as associated seismic activity (number of shutdowns), observed throughout all monitoring activities.
iii. An estimate of the number (by species) of marine mammals with known exposures to the seismic activity (based on visual observation) at received levels greater than or equal to 160 dB re: 1 μPa and/or 180 dB re 1 μPa for cetaceans and 190-dB re 1 μPa for pinnipeds and a discussion of any specific behaviors those individuals exhibited.
iv. An estimate of the number (by species) of marine mammals with estimated exposures (based on modeling results) to the seismic activity at received levels greater than or equal to 160 dB re: 1 μPa and/or 180 dB re 1 μPa for cetaceans and 190-dB re 1 μPa for pinnipeds with a discussion of the nature of the probable consequences of that exposure on the individuals.
v. A description of the implementation and effectiveness of the: (A) terms and conditions of the Biological Opinion's Incidental Take Statement (attached); and (B) mitigation measures of the Incidental Harassment Authorization. For the Biological Opinion, the report will confirm the implementation of each Term and Condition, as well as any conservation recommendations, and describe their effectiveness, for minimizing the adverse effects of the action on Endangered Species Act listed marine mammals.
b. Submit a final report to the Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, within 30 days after receiving comments from us on the draft report. If we decide that the draft report needs no comments, we will consider the draft report to be the final report.
In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner not permitted by the authorization (if issued), such as an injury, serious injury, or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Observatory shall immediately cease the specified activities and immediately report the take to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
• Time, date, and location (latitude/longitude) of the incident;
• Name and type of vessel involved;
• Vessel's speed during and leading up to the incident;
• Description of the incident;
• Status of all sound source use in the 24 hours preceding the incident;
• Water depth;
• Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);
• Description of all marine mammal observations in the 24 hours preceding the incident;
• Species identification or description of the animal(s) involved;
• Fate of the animal(s); and
• Photographs or video footage of the animal(s) (if equipment is available).
The Observatory shall not resume its activities until we are able to review the circumstances of the prohibited take. We shall work with the Observatory to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Observatory may not resume their activities until notified by us via letter, email, or telephone.
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Observatory will immediately report the incident to the Incidental Take Program Supervisor, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or by email to
In the event that the Observatory discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously
The Observatory is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to the Endangered Species Act Biological Opinion issued to the National Science Foundation and NMFS' Office of Protected Resources, Permits and Conservation Division (attached). A copy of this Authorization and the Incidental Take Statement must be in the possession of all contractors and protected species observers operating under the authority of this Incidental Harassment Authorization.
NMFS requests comments on our analysis, the draft authorization, and any other aspect of the Notice of proposed Authorization for the Observatory's activities. Please include any supporting data or literature citations with your comments to help inform our final decision on the Observatory's request for an application.
Fish and Wildlife Service, Interior.
Final rule.
The U.S. Fish and Wildlife Service (Service) adds 6 national wildlife refuges to the list of areas open for hunting and/or sport fishing, adds new hunts at 6 refuges, increases the hunting activities available at 20 other refuges, and increases fishing opportunities at 2 refuges, along with adopting pertinent refuge-specific regulations on other refuges that pertain to migratory game bird hunting, upland game hunting, big game hunting, and sport fishing for the 2013-2014 season.
This rule is effective March 17, 2014.
Paul F. Steblein, (703) 358-2678.
The National Wildlife Refuge System Administration Act of 1966 closes national wildlife refuges (NWRs) in all States except Alaska to all uses until opened. The Secretary of the Interior (Secretary) may open refuge areas to any use, including hunting and/or sport fishing, upon a determination that such uses are compatible with the purposes of the refuge and National Wildlife Refuge System mission. The action also must be in accordance with provisions of all laws applicable to the areas, developed in coordination with the appropriate State fish and wildlife agency(ies), consistent with the principles of sound fish and wildlife management and administration, and otherwise in the public interest. These requirements ensure that we maintain the biological integrity, diversity, and environmental health of the Refuge System for the benefit of present and future generations of Americans.
We periodically review refuge hunting and sport fishing programs to determine whether to include additional refuges or whether individual refuge regulations governing existing programs need modifications. Changing environmental conditions, State and Federal regulations, and other factors affecting fish and wildlife populations and habitat may warrant modifications to refuge-specific regulations to ensure the continued compatibility of hunting and sport fishing programs and to ensure that these programs will not materially interfere with or detract from the fulfillment of refuge purposes or the Refuge System's mission.
Provisions governing hunting and sport fishing on refuges are in title 50 of the Code of Federal Regulations in part 32 (50 CFR part 32). We regulate hunting and sport fishing on refuges to:
• Ensure compatibility with refuge purpose(s);
• Properly manage the fish and wildlife resource(s);
• Protect other refuge values;
• Ensure refuge visitor safety; and
• Provide opportunities for quality fish- and wildlife-dependent recreation.
On many refuges where we decide to allow hunting and sport fishing, our general policy of adopting regulations identical to State hunting and sport fishing regulations is adequate in meeting these objectives. On other refuges, we must supplement State regulations with more-restrictive Federal regulations to ensure that we meet our management responsibilities, as outlined in the “Statutory Authority” section. We issue refuge-specific hunting and sport fishing regulations when we open NWRs to migratory game bird hunting, upland game hunting, big game hunting, or sport fishing. These regulations list the wildlife species that you may hunt or fish, seasons, bag or creel (container for carrying fish) limits, methods of hunting or sport fishing, descriptions of areas open to hunting or sport fishing, and other provisions as appropriate. You may find previously issued refuge-specific regulations for hunting and sport fishing in 50 CFR part 32. In this rulemaking, we are standardizing and clarifying the language of existing regulations.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee, as amended by the National Wildlife Refuge System Improvement Act of 1997 [Improvement Act]) (Administration Act), and the Refuge Recreation Act of 1962 (16 U.S.C. 460k-460k-4) (Recreation Act) govern the administration and public use of refuges.
Amendments enacted by the Improvement Act, built upon the Administration Act in a manner that provides an “organic act” for the Refuge System, are similar to those that exist for other public Federal lands. The Improvement Act serves to ensure that we effectively manage the Refuge System as a national network of lands, waters, and interests for the protection and conservation of our Nation's wildlife resources. The Administration Act states first and foremost that we focus our Refuge System mission on conservation of fish, wildlife, and plant resources and their habitats. The Improvement Act requires the Secretary, before allowing a new use of a refuge, or before expanding, renewing, or extending an existing use of a refuge, to determine that the use is compatible with the purpose for which the refuge was established and the mission of the Refuge System. The Improvement Act established as the policy of the United States that wildlife-dependent recreation, when compatible, is a legitimate and appropriate public use of the Refuge System, through which the American public can develop an appreciation for fish and wildlife. The Improvement Act established six wildlife-dependent recreational uses as the priority general public uses of the Refuge System. These uses are: Hunting, fishing, wildlife observation and photography, and environmental education and interpretation.
The Recreation Act authorizes the Secretary to administer areas within the Refuge System for public recreation as an appropriate incidental or secondary use only to the extent that doing so is practicable and not inconsistent with the primary purpose(s) for which Congress and the Service established the areas. The Recreation Act requires that any recreational use of refuge lands be compatible with the primary purpose(s) for which we established the refuge and not inconsistent with other previously authorized operations.
The Administration Act and Recreation Act also authorize the Secretary to issue regulations to carry out the purposes of the Acts and regulate uses.
We develop specific management plans for each refuge prior to opening it to hunting or sport fishing. In many cases, we develop refuge-specific regulations to ensure the compatibility of the programs with the purpose(s) for which we established the refuge and the Refuge System mission. We ensure initial compliance with the Administration Act and the Recreation Act for hunting and sport fishing on newly acquired refuges through an interim determination of compatibility made at or near the time of acquisition. These regulations ensure that we make the determinations required by these acts prior to adding refuges to the lists of areas open to hunting and sport fishing in 50 CFR part 32. We ensure continued compliance by the development of comprehensive
In the September 24, 2013,
Regarding policy specific to falconry, Service policy, as outlined in our Service manual at 605 FW 2.7M (Special Hunts), stipulates, “We will address special types of hunts, such as falconry, in the hunt section of the visitor service plan (VSP).” In other words, each refuge manager, when developing their step-down visitor service's plan (which would include a hunt plan, if appropriate) from their comprehensive conservation plan, must first determine if hunting is compatible. Assuming it is found to be compatible, the refuge manager would next determine the conduct of the hunt which might include the use of falconry. A refuge manager has discretion to prohibit hunting, specifically falconry, in certain cases such as if endangered or threatened species are present; thus, this issue is decided individually on a refuge-by-refuge basis.
Falconry for any species has never occurred on Bosque del Apache NWR, so we have not completed an assessment of short-term, long-term, or cumulative impacts related to this type of special hunt. There is concern regarding the potential take of non-target species if we allow falconry at Bosque del Apache NWR. The refuge is particularly concerned about falconry due to non-target bird species listed federally or by the State as endangered or threatened, including the southwestern willow flycatcher and yellow billed cuckoo that forage on the refuge during spring and fall migration. Therefore, we made no changes to the rule as a result of this comment.
Proposed changes to the regulations for Bosque del Apache and Sevilleta NWRs were developed at the same time, and this prohibition on falconry was inadvertently added to the changes proposed for Sevilleta NWR. Sevilleta NWR allows falconry on the refuge, and anyone using this method of take must follow all refuge and State regulations when hunting. As such, we have removed the prohibition on falconry at Sevilleta NWR from this final rule.
In sum, this illustrates that the decision to allow hunting on an NWR is not a quick or simple process. It is full of deliberation and discussion, including review of all available data to determine the relative health of a population before we allow it to be hunted. In the case of migratory game bird hunting, the Service annually prescribes frameworks for dates and times when migratory bird hunting may occur in the United States, and the number of birds that hunters may take and possess. We write these regulations after giving due regard to “the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” and update the information annually. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), Congress authorized the Secretary of the Interior to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any . . . bird, or any part, nest, or egg” of migratory game birds can take place, and to adopt regulations for this purpose. The Secretary of the Interior delegated this responsibility to the Service as the lead
Because the Service is required to take abundance of migratory birds and other factors into consideration, we undertake a number of surveys throughout the year in conjunction with the Canadian Wildlife Service, State and Provincial wildlife management agencies, and others. To determine the appropriate frameworks for each species, we consider factors such as population size and trend, geographical distribution, annual breeding effort, the condition of breeding and wintering habitat, the number of hunters, and the anticipated harvest. After we establish frameworks for season lengths, bag limits, and areas for migratory bird hunting, migratory game bird management becomes a cooperative effort of State and Federal governments. After Service establishment of final frameworks for hunting seasons, the States may select season dates, bag limits, and other regulatory options for the hunting seasons.
As discussed in the cumulative impacts report (available on
Collectively, we estimate that the proposed actions on the 22 refuges with increased migratory game bird hunting would be 12,616 ducks (0.0008 percent of the estimated national harvest) and 2,463 geese (0.0008 percent of the estimated national harvest). In short, we project that harvests of these species on the 22 refuges will constitute an extremely minor component of the national harvests.
We allow hunting of resident wildlife on NWRs only if such activity has been determined compatible with the establishment purpose(s) of the refuge and the mission of the Refuge System as required by the Administration Act. Hunting of resident wildlife on NWRs generally occurs consistent with State regulations, including seasons and bag limits. Refuge-specific hunting regulations can be more restrictive (but not more liberal) than State regulations and often are in order to help meet specific refuge objectives. These include resident wildlife population and habitat objectives, minimizing disturbance impacts to wildlife, maintaining high-quality opportunities for hunting and other wildlife-dependent recreation, eliminating or minimizing conflicts with other public uses and/or refuge management activities, and protecting public safety.
Please consult the cumulative impacts report at the Web site referenced above for a more indepth discussion, but in sum, none of the known, estimated, or projected harvests of big game, small game, or upland game species resulting from the proposed hunting activities on refuges was determined or expected to have significant adverse direct, indirect, or cumulative impacts to any big game, small game, or upland game wildlife population.
The Migratory Bird Conservation Act of 1929 (16 U.S.C. 715-715d, 715e, 715f-715r) authorizes acquisition of refuges as “inviolate sanctuaries” where the birds could rest and reproduce in total security. In 1949, this “inviolate sanctuary” concept was modified by an amendment to the Migratory Bird Hunting and Conservation Stamp Act (16 U.S.C. 718a
Note that not all refuges are inviolate sanctuaries. If we acquired a refuge as an inviolate sanctuary, we may open up to 40 percent of that refuge's area for hunting of migratory game birds. However, if we acquired a refuge without the stipulation that it be an inviolate sanctuary, we may open 100 percent of the refuge's area for hunting.
The Fish and Wildlife Improvement Act of 1978 (Pub. L. 95-616) amended section 6 of the Administration Act to provide for the opening of all or any portion of an inviolate sanctuary to the taking of migratory birds if taking is determined to be beneficial to the species. Such opening of more than 40 percent of the refuge to hunting is determined by species. This amendment refers to inviolate sanctuaries created in the past or to be created in the future. It has no application to areas acquired for other management purposes.
Most refuge hunt programs have established refuge-specific regulations to improve the quality of the hunting experience as well as provide for quality wildlife-dependent experiences for other users. Refuge visitor use programs are adjusted, as needed, to eliminate or minimize conflicts between users. Virtually all of the refuges open to hunting and other wildlife-dependent recreational uses use time and space zoning as an effective method to reduce conflicts between hunting and other uses. Eliminating or restricting overlap between hunt areas and popular areas for other wildlife-dependent recreation allows opportunity for other users to safely enjoy the refuge in non-hunted areas during hunting seasons. Restrictions on the number of hunters and the time in which they could hunt are also frequently used to minimize conflicts between user groups. Public outreach accompanying the opening of hunting seasons is frequently used to make other wildlife-dependent recreational users aware of the seasons and minimize conflicts. We made no changes to the rule as a result of this comment.
Lead is a toxic metal that, in sufficient quantities, has adverse effects on the nervous and reproductive systems of animals and can be lethal to wildlife if ingested, even in small amounts. We continue to look at options and ways to reduce the indirect impacts of toxic shot to scavengers. We are and have been phasing out the use of lead shot by small and big game hunters on refuge lands.
The Improvement Act directs us to make refuge regulations as consistent with State regulations as practicable. We share a strong partnership with the States in managing wildlife, and, therefore, we are developing a strategy to reduce risk due to lead in a coordinated manner with State wildlife agencies. We made no changes to the rule as a result of these comments.
We make every attempt to collect all of the proposals from the refuges nationwide and process them expeditiously to maximize the time available for public review. We believe that a 30-day comment period, through the broader publication following the earlier public involvement, gives the public sufficient time to comment and allows us to establish hunting and fishing programs in time for the upcoming seasons. Many of these proposals would relieve restrictions and allow the public to participate in wildlife-dependent recreational activities for the first time on a number of refuges. Even after issuance of a final rule, we accept comments, suggestions, and concerns for consideration for any appropriate subsequent rulemaking.
Although the public comment period did overlap with the government shutdown, the proposed rule was published in the
The numbers of animals taken is too small to shift the genetic makeup of a population. Please refer to the cumulative impacts report. The report explains the cumulative impact that the 2013-2014 proposed rule would have on migratory birds, resident wildlife, non-hunted migratory and resident wildlife, endangered and threatened species, habitats and plant resources, other wildlife-dependent recreational uses, physical resources (air, water, soils), cultural resources, refuge facilities, solitude, and cumulative socioeconomic impacts.
According to the Fish and Wildlife Coordination Act, this refuge “shall be administered by [the Secretary of the Interior] directly or in accordance with cooperative agreements . . . and in accordance with such rules and regulations for the conservation, maintenance, and management of wildlife, resources thereof, and its habitat thereon” (16 U.S.C. 664). The Migratory Bird Conservation Act of 1929 states that its purpose is to be “an inviolate sanctuary, for any other management purpose, for migratory birds” (16 U.S.C. 715d).
As stated earlier, the Improvement Act mandates the Service to provide wildlife-dependent recreation on refuges, where appropriate and compatible, and designates six priority public uses of the Refuge System: Hunting, fishing, wildlife observation and photography, and environmental education and interpretation. The environmental assessment, section 7 consultation, and data analysis did not show that any negative cumulative impacts will occur to the Everglades snail kite under the proposed hunting regulations.
The refuge has completed a compatibility determination and has found the alligator hunt compatible based on the current research and data available. Research shows that the refuge can support a limited alligator hunt without having negative cumulative effects to the alligator population or interfering with other public user groups. See the sport hunting plan's appendix B for the compatibility determination. Please contact the refuge if you would like to obtain a copy of the sport hunting plan. Also, the refuge consulted under section 7 of the ESA and found the hunt is not likely to adversely affect any listed,
Approximately 21 percent (30,000 acres) of the refuge is available for hunting during the season, leaving up to 79 percent of the refuge for alligators and other species to forage and rest (sanctuary area) depending on environmental conditions.
Nesting populations of Everglades snail kite, wood storks, and other listed species would not be significantly disturbed as a result of the action alternative. Snail kites do not frequent nor nest during the dates for the alligator season (August through November). However, depending on the year, water levels may be optimal earlier or later for both wintering and nesting snail kites and may fall within the time frame for the hunt seasons. It is unlikely that the snail kites will be affected, though, because of the low density of snail kites on the refuge, the actual number of hunt dates available, and the location of the hunt area versus past nest locations. See the refuge's 2012 Sport Hunting Plan for specific refuge hunt days, which are more restrictive than the State seasons.
To minimize potential impacts to snail kites, recreational hunting activities within the refuge will take measures to avoid active snail kite nest sites. If the snail kite nests are active during the hunt seasons, the refuge will coordinate restrictions and necessary communications with Florida Fish and Wildlife Conservation Commission staff and hunters, and “Area Closed” signs will be placed to show the buffer zones whether along levees or within the marsh. Prior to the hunts, the refuge will provide hunters with maps, GPS points, and specific rules and regulations regarding the restrictions within the snail kite nest buffer zones. We made no changes to the rule as a result of this comment.
The refuge has completed a compatibility determination and has found the alligator hunt compatible based on the current research and data available. Please contact the refuge if you would like to obtain a copy of the sport hunting plan, which contains the completed compatibility determination. Research shows that the refuge can support a limited alligator hunt without having negative cumulative effects to the alligator population or interfering with other public user groups.
The current hunt boundary for alligator hunting will remain the same as the waterfowl hunt boundary except for opening the perimeter canals, and currently access will be allowed only from the Hillsboro boat ramp. There will be a buffer around high use visitor areas where hunting will not be allowed to take place (
We do anticipate some minor disturbance to other foraging or resting birds and other wildlife from dogs, human activity, and the noise associated with hunting. Orientation will be provided to all hunters at the start of each hunt day, which will help to reduce effects to non-target species.
Similarly, there will be disturbance to other refuge users during the hunt, but less than 34 percent of the refuge will be open to hunting, and hunting will occur on only 6 days per year. The high-use public areas at that time of year (viewing areas along Coville Road, trails on Baskett Butte) will remain unaffected, except for some potential for more vehicles to be parked in high-use
The positives are that hunting provides an opportunity, especially for youth, to enjoy a wildlife-dependent use (which is considered a priority for the Refuge System as a whole). We made no changes to the rule as a result of this comment.
Some refuges close other public use programs or enforce clothing regulations during hunting seasons. This is done through refuge-specific regulations specifically for public safety. We made no changes to the rule as a result of these comments.
Bow-hunting-only hunting zones well away from the trail system, and hunting zones farther still away from our grassland habitat, make this hunt safe in the context of other ongoing uses. It also gives the Service an important management tool to benefit peripheral forest areas, while virtually eliminating impacts to the interior, uninterrupted grasslands. These forested blocks contain numerous invasive plant species, and native understory vegetation is absent. Further, the grassland portion of the refuge has a great potential for supporting rare native plant species; however, although once historically present, these species are now missing from the vegetative community. Overabundance of deer helped eliminate native vegetation in the forest and grassland areas, while favoring nonnative, invasive plants.
The town park that is referenced in the comment has been under construction for a decade. As the park begins to open, we will adjust hunt-able areas, if necessary, to keep safety our top priority. We made no changes to the rule as a result of this comment.
Building on Executive Order 12996 (Management and General Public Use of the National Wildlife Refuge System), the Improvement Act directs the Service to manage for “biological integrity, diversity, and environmental health.” Predators are an extremely important component of ecosystems. If deemed appropriate by the refuge manager, predator control may be part of the comprehensive conservation plan or other management plan.
Our policy for managing units of the Refuge System is that we will manage all refuges in accordance with an approved comprehensive conservation plan, which, when implemented, will achieve refuge purposes; help fulfill the Refuge System mission; maintain and, where appropriate, restore the ecological integrity of each refuge and the Refuge System; help achieve the goals of the National Wilderness Preservation System; and meet other mandates. The CCP will guide management decisions and set forth goals, objectives, and strategies to accomplish these ends.
In addition to the comments mentioned above, we received several comments that did not relate to the proposed rule. We are very open to receiving comments on other issues, but we are responding only to those comments directly related to the proposed rule in this document.
Based on comments we received on the proposed rule, we are removing the prohibition on falconry on Sevilleta NWR and changing the access hours for entry into Nestucca Bay and Siletz Bay NWRs to 2 hours before sunrise. We have also made several nonsubstantive, editorial changes for clarity.
This rule is effective upon publication in the
This document adopts in the Code of Federal Regulations all of the Service's hunting and/or sport fishing regulations that are applicable at Refuge System units previously opened to hunting and/or sport fishing. We are doing this to better inform the general public of the regulations at each refuge, to increase understanding and compliance with these regulations, and to make enforcement of these regulations more efficient. In addition to now finding these regulations in 50 CFR part 32, visitors to our refuges will usually find them reiterated in literature distributed by each refuge or posted on signs.
We cross-reference a number of existing regulations in 50 CFR parts 26, 27, 28, and 32 to assist hunting and sport fishing visitors with understanding safety and other legal requirements on refuges. This redundancy is deliberate, with the intention of improving safety and compliance in our hunting and sport fishing programs.
The changes for the 2013-14 hunting/fishing season noted in the chart above are each based on a complete administrative record which, among other detailed documentation, also includes a hunt plan, a compatibility determination, and the appropriate National Environmental Policy Act (NEPA; 42 U.S.C. 4321
For health reasons, anglers should review and follow State-issued consumption advisories before enjoying recreational sport fishing opportunities on Service-managed waters. You can find information about current fish consumption advisories on the Internet at:
In this rule, we made some of the revisions to the individual refuge units to comply with a Presidential mandate to use plain language in regulations; as such, these particular revisions do not modify the substance of the previous regulations. These types of changes include using “you” to refer to the reader and “we” to refer to the Refuge System, using the word “allow” instead of “permit” when we do not require the use of a permit for an activity, and using active voice (i.e., “We restrict entry into the refuge” vs. “Entry into the refuge is restricted”).
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601
This rule adds 6 NWRs to the list of refuges open to hunting, increases hunting activities on 20 additional NWRs, and increases fishing activities at 2 NWRs. As a result, visitor use for wildlife-dependent recreation on these NWRs will change. If the refuges establishing new programs were a pure addition to the current supply of such activities, it would mean an estimated increase of 19,425 user days (one person per day participating in a recreational opportunity) (Table 2). Because the participation trend is flat in these activities since 1991, this increase in supply will most likely be offset by other sites losing participants. Therefore, this is likely to be a substitute site for the activity and not necessarily an increase in participation rates for the activity.
To the extent visitors spend time and money in the area of the refuge that they would not have spent there anyway, they contribute new income to the regional economy and benefit local businesses. Due to the unavailability of site-specific expenditure data, we use the national estimates from the 2011 National Survey of Fishing, Hunting, and Wildlife Associated Recreation to identify expenditures for food and lodging, transportation, and other incidental expenses. Using the average expenditures for these categories with the maximum expected additional participation of the Refuge System yields approximately $904,800 in recreation-related expenditures (Table 2). By having ripple effects throughout the economy, these direct expenditures are only part of the economic impact of these recreational activities. Using a national impact multiplier for hunting activities (2.27) derived from the report “Hunting in America: An Economic Force for Conservation” yields a total economic impact of approximately $2.1 million (2012 dollars) (Southwick Associates, Inc., 2012). Using a local impact multiplier would yield more accurate and smaller results. However, we employed the national impact multiplier due to the difficulty in developing local multipliers for each specific region.
Since we know that most of the fishing and hunting occurs within 100 miles of a participant's residence, then it is unlikely that most of this spending would be “new” money coming into a local economy; therefore, this spending would be offset with a decrease in some other sector of the local economy. The net gain to the local economies would be no more than $2.1 million, and most likely considerably less. Since 80 percent of the participants travel less than 100 miles to engage in hunting and fishing activities, their spending patterns would not add new money into the local economy and, therefore, the real impact would be on the order of about $411,000 annually.
Small businesses within the retail trade industry (such as hotels, gas stations, taxidermy shops, bait and tackle shops, and similar businesses) may be impacted from some increased or decreased refuge visitation. A large percentage of these retail trade establishments in the local communities around NWRs qualify as small businesses (Table 3). We expect that the incremental recreational changes will be scattered, and so we do not expect that the rule will have a significant economic effect on a substantial number of small entities in any region or nationally. As noted previously, we expect approximately $411,000 to be spent in total in the refuges' local economies. The maximum increase at most would be less than one-tenth of 1 percent for local retail trade spending (Table 3).
With the small change in overall spending anticipated from this rule, it is unlikely that a substantial number of small entities will have more than a small impact from the spending change near the affected refuges. Therefore, we certify that this rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. We anticipate no significant employment or small business effects. This rule:
a. Will not have an annual effect on the economy of $100 million or more. The minimal impact will be scattered across the country and will most likely not be significant in any local area.
b. Will not cause a major increase in costs or prices for consumers;
c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule represents only a small proportion of recreational spending at NWRs. Therefore, this rule will have no measurable economic effect on the wildlife-dependent industry, which has annual sales of equipment and travel expenditures of $72 billion nationwide.
Since this rule applies to public use of federally owned and managed refuges, it will not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with E.O. 12630, this rule will not have significant takings implications. This rule affects only visitors at NWRs and describes what they can do while they are on a refuge.
As discussed in the Regulatory Planning and Review and Unfunded Mandates Reform Act sections above, this rule will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement under E.O. 13132. In preparing this rule, we worked with State governments.
In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. The rule clarifies established regulations and results in better understanding of the regulations by refuge visitors.
On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule adds 6 national wildlife refuges to the list of areas open for hunting and/or sport fishing, adds new hunts at 6 refuges, increases the hunting activities available at 20 other refuges, and increases fishing opportunities at 2 refuges, it is not a significant regulatory action under E.O. 12866, and we do not expect it to significantly affect energy supplies, distribution, and use. Therefore, this action is a not a significant energy action and no Statement of Energy Effects is required.
In accordance with E.O. 13175, we have evaluated possible effects on federally recognized Indian tribes and have determined that there are no effects. We coordinate recreational use on NWRs with Tribal governments having adjoining or overlapping jurisdiction before we propose regulations.
This rule does not contain any information collection requirements other than those already approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501
We comply with section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
We analyzed this rule in accordance with the criteria of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4332(C)), 43 CFR part 46, and 516 Departmental Manual (DM) 8.
A categorical exclusion from NEPA documentation applies to publication of amendments to refuge-specific hunting and fishing regulations since they are technical and procedural in nature, and the environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis (43 CFR 46.210 and 516 DM 8). Concerning the actions that are the subject of this rulemaking, we have complied with NEPA at the project level when developing each proposal. This is consistent with the Department of the Interior instructions for compliance with NEPA where actions are covered sufficiently by an earlier environmental document (43 CFR 46.120).
Prior to the addition of a refuge to the list of areas open to hunting and fishing in 50 CFR part 32, we develop hunting and fishing plans for the affected refuges. We incorporate these refuge hunting and fishing activities in the refuge CCPs and/or other step-down management plans, pursuant to our refuge planning guidance in 602 Fish and Wildlife Service Manual (FW) 1, 3, and 4. We prepare these CCPs and step-down plans in compliance with section 102(2)(C) of NEPA, and the Council on Environmental Quality's regulations for implementing NEPA in 40 CFR parts 1500-1508. We invite the affected public to participate in the review, development, and implementation of these plans. Copies of all plans and NEPA compliance are available from the refuges at the addresses provided below.
Individual refuge headquarters have information about public use programs and conditions that apply to their specific programs and maps of their respective areas. To find out how to contact a specific refuge, contact the appropriate Regional office listed below:
Region 1—Hawaii, Idaho, Oregon, and Washington. Regional Chief, National Wildlife Refuge System, U.S. Fish and
Region 2—Arizona, New Mexico, Oklahoma, and Texas. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, Box 1306, 500 Gold Avenue, Albuquerque, NM 87103; Telephone (505) 248-7419.
Region 3—Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437-1458; Telephone 612-713-5360.
Region 4—Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Puerto Rico, and the Virgin Islands. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Atlanta, GA 30345; Telephone (404) 679-7166.
Region 5—Connecticut, Delaware, District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, MA 01035-9589; Telephone (413) 253-8306.
Region 6—Colorado, Kansas, Montana, Nebraska, North Dakota, South Dakota, Utah, and Wyoming. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 134 Union Blvd., Lakewood, CO 80228; Telephone (303) 236-8145.
Region 7—Alaska. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 1011 E. Tudor Rd., Anchorage, AK 99503; Telephone (907) 786-3545.
Region 8—California and Nevada. Regional Chief, National Wildlife Refuge System, U.S. Fish and Wildlife Service, 2800 Cottage Way, Room W-2606, Sacramento, CA 95825; Telephone (916) 414-6464.
Paul Steblein, Division of Conservation Planning and Policy, National Wildlife Refuge System is the primary author of this rulemaking document.
Administrative practice and procedure, Concessions, Reporting and Recordkeeping Requirements, Safety, Wildlife refuges
Fishing, Hunting, Reporting, and Recordkeeping requirements, Wildlife, Wildlife refuges.
For the reasons set forth in the preamble, we amend title 50, chapter I, subchapter C of the Code of Federal Regulations as follows:
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i, 3901 et seq.; and Pub. L. 102-402, 106 Stat. 1961.
The Office of Management and Budget has approved the information collection requirements contained in subchapter C, parts 25, 26, 27, 29, 30, 31, 32, and 36 under 44 U.S.C. 3501 et seq. and assigned the following control numbers: 1018-0102 for National Wildlife Refuge Special Use Permit Applications and Reports; 1018-0140 for Hunting and Fishing Application Forms and Activity Reports for National Wildlife Refuges; and 1018-0153 for National Wildlife Refuge Visitor Check-In Permit and Use Report. We collect information to assist us in administering our programs in accordance with statutory authorities that require that recreational or other uses be compatible with the primary purposes for which the areas were established. Send comments on any aspect of these forms or the information collection requirements to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 1849 C Street NW., MS 2042-PDM, Washington, DC 20240.
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd-668ee, and 715i.
These revisions and additions read as follows:
1. We require hunters to hunt in accordance with Alabama Department of Conservation and Natural Resources'
2. We require hunters to possess and carry a current and signed Alabama Department of Conservation and Natural Resources' William R. Ireland, Sr.—Cahaba River Wildlife Management Area hunting permit when hunting on the refuge.
3. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than two youth hunters.
4. We prohibit the use of horses, mules, and all-terrain vehicles (ATVs) on the refuge.
5. Hunters may hunt with shotguns using only nontoxic #4 shot or smaller (see § 32.2(k)), rifles and handguns using rim-fire ammunition only, or archery equipment that complies with State and Federal regulations.
6. We prohibit hunting or discharging firearms (including muzzle loaders) from within 50 yards (45 meters) of River Trace Road.
7. Hunting dogs may be used to hunt upland game and must be controlled by the owner/handler at all times (see § 26.21(b) of this chapter).
8. Hunters may only hunt designated game species during specified days, which are published within the Cahaba River National Wildlife Refuge Hunting dates portion of the permit.
9. Hunters must remove tree stands, blinds, or other personal property from the refuge each day (see § 27.93 of this chapter).
1. Conditions B1, B2, B4, B6, and B8 through B10 apply.
3. We allow hunters to hunt from tree stands in accordance with 50 CFR 32.2(i). Hunters must use a body safety harness at all times while hunting from a tree.
4. All youth hunters under age 16 must be supervised by a properly licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than one youth hunter.
5. Hunters may not hunt by aid of or participate in drives to take deer or feral hogs.
1. Condition B4 applies.
5. All persons 15 years of age or younger, while hunting on the refuge, must be in the presence and under direct supervision of a licensed or exempt hunter at least 21 years of age. A licensed hunter supervising a youth as provided in this section must hold a valid State license for the species being hunted. One adult may supervise no more than one youth hunter.
6. The refuge is open every day from 1 hour before sunrise to 1 hour after sunset, except authorized uses. Personal property must be removed from the refuge daily (see § 27.93 of this chapter).
8. Persons possessing, transporting, or carrying firearms on the refuge must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in part 32). Persons may only use approved nontoxic shot in shotgun shells (see § 32.2(k)), .22 caliber rimfire or smaller rifles, or legal archery equipment according to State regulations. We prohibit magnum ammunition.
9. We prohibit equestrian use and all forms of motorized off-road vehicles.
10. We allow hunting of designated species with dogs during designated hunts.
1. Conditions B1 through B9 and B11 apply.
2. We allow hunters to hunt from tree stands in accordance with 50 CFR 32.2(i). While climbing a tree, installing a tree stand that uses climbing aids, or while hunting from a tree stand on the refuge, hunters must use a fall-arrest system (full body harness) that is manufactured to Treestand Manufactures Associations standards.
3. We prohibit damaging trees or hunting from a tree that contains an inserted metal object (see § 32.2(i)). Personal property must be removed from the refuge each day except for one portable stand (including tripods and ground blinds) (see § 27.93 of this chapter). The stand is required to be tagged with the hunter's name, address, and phone number permanently and legibly written on or attached to the stand. Stands left on the area do not reserve hunting locations. Portable stands may not be installed on the area prior to 7 days before deer season opens, nor left longer than 7 days after deer season closes. Stands not in compliance with these regulations may be confiscated and disposed of by the U.S. Fish and Wildlife Service.
4. Hunters may not hunt by aid of or harassment of game for purposes of take of deer or feral hogs.
6. Hunter orange is required according to State regulations during gun deer season in Choctaw County, AL. We recommend all user groups wear hunter orange during hunting seasons.
1. We allow fishing year-round, except in the waterfowl sanctuary, which is closed from November 15 through March 1.
2. Conditions B2 and B6 apply.
8. We prohibit fishing tournaments on all refuge waters.
1. Conditions A1, A2, A3, and A7 through A15 apply.
4. We only allow shotguns as the means of take for upland game hunting.
1. Conditions A1, A7 through A15, and B5 apply.
1. We require hunters to possess and carry a current and signed Key Cave National Wildlife Refuge permit, which is included with the Alabama Department of Conservation and Natural Resources' Seven Mile Island Wildlife Management Area hunting permit when hunting on the refuge.
4. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than two youth hunters.
5. We allow hunters to use hunting dogs to hunt migratory game birds and upland game. The dogs must be controlled by the owner/handler at all times (see § 26.21(b) of this chapter).
6. Hunters may only hunt designated game species during specified days, which are published within the Key Cave National Wildlife Refuge Hunting Dates portion of the permit.
7. We prohibit the use of horses, mules, or all-terrain vehicles (ATVs) on all refuge hunts.
1. Conditions A1 and A3 through A7 apply.
3. Hunters may hunt with shotguns using only nontoxic #4 shot or smaller
1. We require hunters to hunt in accordance with Alabama Department of Conservation and Natural Resources' Choccolocco Wildlife Management Area hunting permit conditions.
2. We require hunters to possess and carry a current and signed Alabama Department of Conservation and Natural Resources' Choccolocco Wildlife Management Area hunting permit when hunting on the refuge.
3. All youth hunters under age 16 must be supervised by a properly licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than two youth hunters.
4. We prohibit the use of horses, mules, and all-terrain vehicles (ATVs) on the refuge.
5. Hunters may only hunt designated game species during specified days, which are published within the Mountain Longleaf National Wildlife Refuge Hunting Dates portion of the permit.
6. Hunters must remove tree stands, blinds, or other personal property from the refuge each day (see § 27.93 of this chapter).
7. Hunters may hunt with shotguns using only nontoxic #4 shot or smaller (see § 32.2(k)). Possession of lead shot shells for hunting is prohibited.
1. Conditions A1 through A7 apply.
2. Hunters may hunt during daylight hours only.
3. We allow hunters to hunt from tree stands in accordance with 50 CFR 32.2(i). Hunters must use a body safety harness at all times while hunting from a tree.
4. Hunting dogs may be used to hunt quail, squirrel, and rabbit and must be controlled by the owner/handler at all times (see § 26.21(b) of this chapter).
5. Possession of lead shot shells for hunting is prohibited.
1. Conditions A1, A2, and A4 through A7 apply.
4. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than one youth hunter.
1. We require hunters to hunt in accordance with Alabama Department of Conservation and Natural Resources' North Sauta refuge hunting permit.
2. We require hunters to possess and carry a current and signed Sauta Cave National Wildlife Refuge permit, which is found on the Alabama Department of Conservation and Natural Resources' Jackson County Waterfowl, Management Areas, refuges and Coon Gulf Tract hunting permit, when hunting.
3. Hunters may only hunt designated game species during specified days, which are published within the Sauta Cave National Wildlife Refuge Hunting Dates portion of the permit.
4. Hunters may hunt with shotguns using only nontoxic #4 shot or smaller (see § 32.2(k)), rifles and handguns using rim-fire ammunition only, or archery equipment that complies with State regulations. Possession of lead shot shells for hunting is prohibited.
5. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than two youth hunters.
6. We allow hunters to use hunting dogs to hunt upland game. The dogs must be controlled by the owner/handler at all times (see § 26.21(b) of this chapter).
1. We require hunters to possess and carry a current and signed hunting permit, found on the Wheeler National Wildlife Refuge Hunting Brochure, when hunting on the refuge. These brochures are available at the refuge visitor center, refuge headquarters, and on the refuge's Web site.
2. Hunters may hunt with shotguns using only nontoxic #4 shot or smaller (see § 32.2(k)), rifles and handguns using rim-fire ammunition only, or archery equipment that complies with State regulations.
4. We prohibit hunting or discharging firearms (including Flintlocks) in the Triana recreation area or from any road or road shoulder or from within 50 yards (45 meters) of any designated walking trail or boardwalk.
7. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than two youth hunters.
10. Hunting dogs may be used to hunt upland game and must be controlled by the owner/handler at all times (see § 26.21(b) of this chapter).
11. We allow hunters to hunt from tree stands in accordance with 50 CFR 32.2(i). Hunters must use a body safety harness at all times while hunting from a tree.
12. Hunters must remove tree stands, blinds, or other personal property from the refuge each day (see § 27.93 of this chapter).
13. Hunters may only hunt designated game species during specified days, which are published within the Wheeler National Wildlife Refuge Hunting Brochure.
1. Conditions B1, B3 through B6, B8, B9, and B11 through B13 apply.
2. Hunters may not hunt by aid of or harassment of game for purposes of take for deer or feral hogs.
3. Hunters may only hunt with archery equipment that complies with State regulations and flintlocks .40 caliber or larger.
4. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. One adult may supervise no more than one youth hunter.
5. Hunters must report the sex, approximate size, and hunt area for any deer or hogs they harvested from the refuge within 72 hours. Reports must be given by phone or in person to the refuge Visitor Center (256/350-6639) or refuge headquarters (256/353-7243).
7. You may only hunt feral hog during the refuge archery and flintlock deer season.
These revisions and additions read as follows:
3. Access to the hunt area is by foot traffic only. Bicycles and other conveyances are not allowed. Mobility-impaired hunters must consult the refuge manager for allowed conveyances.
4. We allow boats with electric motors to be used by hunters with disabilities only in designated areas.
5. No person may build or maintain fires. Portable gas stoves are permissible.
6. You may enter or exit only at designated locations.
7. Vehicles may stop only at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
8. Overnight stays, using passenger vehicles, motor homes, and trailers, are allowed only at the check station parking areas. Tents are prohibited.
9. We require dogs be kept on a leash, except for hunting dogs engaged in authorized hunting activities and under the immediate control of a licensed hunter.
1. Conditions A1 through A9 apply.
4. Access to the hunt area is by foot traffic only. Bicycles and other conveyances are not allowed. Mobility-impaired hunters should consult the refuge manager for allowed conveyances.
10. Overnight stays, using passenger vehicles, motor homes, and trailers, are allowed only at the check station parking areas. Tents are prohibited.
11. We require dogs be kept on a leash, except for hunting dogs engaged in authorized hunting activities and under the immediate control of a licensed hunter.
2. Conditions A4 through A11 apply.
6. Access to the hunt area is by foot traffic only. Bicycles and other conveyances are not allowed. Mobility-impaired hunters must consult the refuge manager for allowed conveyances.
10. Overnight stays, using passenger vehicles, motor homes, and trailers, are allowed only at the check station parking areas. Tents are prohibited.
11. We require dogs be kept on a leash, except for hunting dogs engaged in authorized hunting activities and under the immediate control of a licensed hunter.
2. Conditions A4 through A11 apply.
3. Access to the hunt area is by foot traffic only. Bicycles and other conveyances are not allowed. Mobility-impaired hunters should consult the refuge manager for allowed conveyances.
4. Boats with electric motors allowed only by hunters with disabilities in designated areas.
5. No person may build or maintain fires. Portable gas stoves are permissible.
6. You may enter or exit only at designated locations.
7. Vehicles may only stop at designated parking areas. We prohibit the dropping of passengers or equipment or stopping between designated parking areas.
8. Overnight stays, using passenger vehicles, motor homes, and trailers, are allowed only at the check station parking areas. Tents are prohibited.
9. Dogs must be kept on a leash, except for hunting dogs engaged in authorized hunting activities and under the immediate control of a licensed hunter.
1. Conditions A1 through A9 apply.
6. Legal method of take for migratory game birds is by shotgun only.
4. Legal method of take for upland game is by shotgun only.
4. Fishing is closed in Unit C when the refuge is open to big game rifle hunting.
5. Lead sinkers and live bait are not allowed for fishing.
These additions and revisions read as follows:
2. We allow hunting in the interior of the refuge south of latitude line 26.27.130 and north of mile markers 12 and 14 (SEE PERMIT MAP). We prohibit hunting from canals or levees and those areas posted as closed.
7. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of Federal, State, and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
12. All youth hunters under age 16 must be supervised by a licensed and permitted adult 21 years of age or older, and must remain with the adult while hunting. Youth hunters must have completed a hunter education course.
1. You must possess and carry a signed refuge alligator hunt permit (signed brochure) while hunting. These brochures are available at the refuge visitor center and on the refuge's Web site (
2. We allow hunting in the interior of the refuge south of latitude line 26.27.130 and north of mile markers 12 and 14, including the canals south of that line (SEE PERMIT MAP). We prohibit hunting from levees and those areas posted as closed.
3. Consult the refuge manager for current alligator hunt season dates and times.
4. We allow hunting on the refuge 1 hour before sunset on Friday night through 1 hour after sunrise Saturday morning, and 1 hour before sunset on Saturday night through 1 hour after sunrise Sunday morning. Alligator hunting will be permitted the first 2 weekends during Harvest Period 1 (August) and the first 2 weekends during Harvest Period 2 (September). Following the close of Harvest Period 2, the remaining weekends in October will be open for alligator harvest permittees who possess unused CITES tags. Specific dates for the alligator hunt will be provided on the harvest permit.
5. Hunters 18 years and older must be in possession of all necessary State and Federal licenses, permits, and CITES tags, as well as a refuge hunt permit (signed hunt brochure) while hunting on the refuge. They must possess an Alligator Trapping License with CITES tags or an Alligator Trapping Agent License, if applicable.
6. Hunters under the age of 18 may not hunt, but may only accompany an adult of at least 21 years of age who possesses an Alligator Trapping Agent License.
7. Hunters may only enter and leave the refuge at the Hillsboro Area (Loxahatchee Road, Boca Raton).
8. Alligators may be taken using hand-held snares, harpoons, gigs, snatch hooks, artificial lures, manually operated spears, spear guns, and crossbows. Alligators may not be taken using baited hooks, baited wooden pegs, or firearms. Bang sticks (a hand held pole with a pistol or shotgun cartridge on the end in a very short barrel) with non-toxic ammunition are only allowed for taking alligators attached to a restraining line. Once an alligator is captured, it must be killed immediately. Once the alligator is taken or harvested, a CITES tag must be locked through the skin of the carcass within 6 inches of the tip of the tail. The tag must remain attached to the alligator at all times.
9. Hunters must complete a Big Game Harvest Report (FWS Form 3-2359) and place it in an entrance fee canister each day prior to exiting the refuge. A State Alligator Report form required by the State along with the hunt permit (signed refuge brochure) must be submitted to the refuge within 24 hours of taking each alligator.
10. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of Federal, State, and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
11. Hunters must remove all personal property (see § 27.93 of this chapter) from the hunting area each day.
12. Conditions A13 through A17 apply.
4. We allow the take of blue crabs with the use of dip nets only.
5. The daily limit of blue crabs is 20 per person (including no more than 10 non-eggbearing females).
7. We allow vessels propelled only by polling, paddling, or floating in the posted “no-motor zone” of the J.N. “Ding” Darling Wilderness Area. All motors, including electric motors, must be in a nonuse position (out of the water) when in the “no-motor zone.”
8. We allow vessels propelled only by polling, paddling, floating, or electric motors in the posted “pole/troll zone” of the Wulfert Flats Management Area. All non-electric motors must be in a non-use position (out of the water) when in the “pole/troll zone.”
13. We prohibit all public entry into the impoundments on the left side of Wildlife Drive.
21. We close to public entry all refuge islands (including rookery islands) except for designated trails.
3. We prohibit migratory game bird hunting in the Executive Closure Areas on the refuge.
1. We require refuge permits (signed brochure) for hunting upland game. Permits are available at no cost from the refuge office or can be downloaded and printed from the refuge Web site. Each hunter must possess and carry a signed refuge permit while participating in a hunt.
12. Portions of the refuge adjacent to Flint Rock Wildlife Management Area (as specified in the hunt brochure) will be open concurrent with Flint Rock Wildlife Management Area seasons and regulations except only feral hog, grey squirrel, rabbit, and raccoon may be harvested.
4. There is a two deer limit per hunt as specified in condition C8 below, except in the youth hunt where the limit is as specified in C9 below. The limit for turkey is one per hunt. There is no limit on feral hog.
8. The bag limit for white-tailed deer is two deer per scheduled hunt period. We allow hunters to harvest two antlerless deer per scheduled hunt period. We define antlerless deer per State regulations (i.e., un-antlered deer or antlered deer with both antlers less than 5 inches in length). Otherwise, hunters may harvest one antlerless deer and one antlered deer per hunt. Hunters must ensure that antlered deer must have at least 3 points, of 1 inch (2.5 centimeters) or more length.
9. There is one youth hunt, for youth ages 12 to 17, on the St. Marks Unit in an area we will specify in the refuge hunt brochure. Hunters may harvest two deer, either two un-antlered deer as defined in C8 or one un-antlered deer and one antlered deer. An adult age 21 or older acting as a mentor must accompany each youth hunter. One youth turkey hunt will be conducted in a similar manner. The limit will be one gobbler per hunter. Only the youth hunter may handle or discharge firearms. Contact the refuge office for specific dates.
12. Portions of the refuge adjacent to Flint Rock Wildlife Management Area (as specified in the hunt brochure) will be open concurrent with Flint Rock Wildlife Management Area seasons and regulations except only white-tailed deer, feral hog, and turkey may be harvested. We require a refuge permit (signed brochure).
3. We prohibit hunting on or within 100 yards (90 meters) of U.S. Highway 17, GA Highway 25/SC Highway 170, refuge facilities, road, trails, and railroad rights-of-way, and within areas marked as closed.
3. We prohibit the discharge of firearms in the posted retrieving/safety zone.
1. We prohibit all use of dogs for hunting of big game.
2. You may only participate in deer hunting at the ADA-accessible blind with valid State licenses and tags.
3. You may only participate in deer hunting at the ADA-accessible blind with a refuge permit issued through a random drawing for up to four 7-day archery-only permits and up to six 7-day archery/special weapons-only permits.
4. We only allow deer hunting at the ADA-accessible blind using the following weapons: Muzzleloader, archery equipment, crossbow, shotgun using slugs, or handgun using straight-walled cartridges not originally established for rifles.
5. We prohibit use of toxic (lead) ammunition when deer hunting at the ADA-accessible blind.
These additions and revisions read as follows:
1. You must remove all boats, decoys, blinds, blind materials, stands, and platforms (see §§ 27.93 and 27.94 of this chapter) brought onto the refuge at the end of each day's hunt.
1. Conditions A1, A2, A4, and A5 apply.
3. We allow the use of .22 and .17 caliber rimfire lead ammunition for the taking of small game and furbearers during open season.
1. Conditions A1, A2, A4, and A5 apply.
2. We prohibit deer drives, by person or animal, and participating in deer drives on all refuge divisions.
3. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
1. Conditions A1 and A3 apply.
2. You must remove boats, blinds, blind materials, stands, decoys, and other hunting equipment (see §§ 27.93 and 27.94 of this chapter) from the refuge at the end of each day.
3. We allow portable blinds on a daily basis on a first-come, first-served basis.
1. We allow hunting of furbearers only from legal sunrise to legal sunset.
2. You may only use or possess approved nontoxic shot shells while in the field (see § 32.2(k)).
1. Conditions A1 and A2 apply.
2. In the Harlow, Crains, and Meissner Island Divisions you may use only archery equipment to harvest white-tailed deer.
3. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
4. We prohibit deer drives, by person or animal, and participating in deer drives on all refuge divisions.
5. We prohibit placing temporary tree stands in dead or dying trees.
6. You may not remove any tree or limbs greater than 1 inch in diameter.
1. We allow hunting from legal sunrise to legal sunset.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
3. Condition B2 applies.
These additions and revisions read as follows:
4. You may take only two deer per day from the refuge, only one of which may be an antlered buck.
8. We permit archery deer hunting in designated areas after National Wildlife Refuge Week during the State season with the exceptions that archery deer hunting is closed during the youth deer hunt in November and during the State muzzleloader season.
9. Turkey hunting ends at 1 p.m. daily.
10. We prohibit the use or possession of game trail cameras on the refuge.
11. We require you to remove arrows from crossbows during transport in a vehicle.
7. We allow only children under 18 years of age to fish in the Office Pond.
2. You must remove all boats, decoys, blinds, and blind materials after each day's hunt (see §§ 27.93 and 27.94 of this chapter).
7. We prohibit hunting and the discharge of a weapon within 150 yards of any dwelling or any building that may be occupied by people, pets, or livestock.
8. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
3. Conditions A7 and A8 apply.
2. We prohibit marking trails with tape, ribbons, paper, paint, tacks, tree blazes, or other devices.
3. Conditions A6 through A8 apply.
2. * * *
iv. You may not collect or harvest minnows, crayfish, or any reptiles and amphibians (see § 27.21 of this chapter).
3. You must remove boats at the end of each day's fishing activity (see § 27.93 of this chapter).
These additions and revisions read as follows:
1. We prohibit all hunting February 1 through August 31 due to conflict with existing appropriate and compatible uses.
2. You may only possess approved nontoxic shot (see § 32.2(k)) while hunting for any allowed bird, including waterfowl and wild turkey, or other upland or small game.
3. We allow entry into the refuge 1 hour before sunrise and require hunters to leave the refuge no later than 1 hour after sunset.
4. We prohibit shooting on or over any refuge road within 50 feet (15 meters) from the centerline.
5. You must possess and carry a refuge permit (free brochure available at the refuge visitor center).
6. We allow the use of dogs for waterfowl, pheasant, and quail hunting only.
1. Conditions A1 and A3 to A5 apply.
2. We allow the use of portable stands and blinds for hunting, and hunters must remove them at the end of each day (see § 27.93 of this chapter).
1. For units adjacent to and managed by Neal Smith National Wildlife Refuge,
1. For units adjacent to and managed by Neal Smith National Wildlife Refuge, you must follow the refuge-specific regulations provided in this section of the regulations for Neal Smith National Wildlife Refuge.
5. Conditions A8 and A9 apply.
1. For units adjacent to and managed by Neal Smith National Wildlife Refuge, you must follow the refuge-specific regulations provided in this section of the regulations for Neal Smith National Wildlife Refuge.
4. Conditions A6, A8, and A9 apply.
1. You may possess only approved nontoxic shot while hunting migratory birds (see § 32.2(k)).
2. You must remove boats, decoys, and portable blinds at the end of each day (see § 27.93 of this chapter).
1. Prior to entering designated refuge hunting areas, you must obtain a refuge hunting permit (FWS Form 3-2357), pay a recreation fee, and sign and carry the permit at all times.
4. We open Designated Youth Hunting Areas to hunters age 15 and under who possess and carry a refuge hunting permit. Youth hunters must be accompanied by an adult age 18 or older. The accompanying adult must possess and carry a refuge hunting permit and may also hunt.
5. You may only possess approved nontoxic shot for hunting (see § 32.2(k)) on the refuge.
1. Conditions A1 and A7 apply.
2. You may take pheasant, quail, and grouse by falconry during State seasons.
3. You may only possess approved nontoxic shot for hunting (see § 32.2(k)) on the refuge.
1. Conditions A1, A4, and A7 apply.
2. We allow hunting of deer and turkey with shotgun and archery only. We prohibit rifles and muzzleloading firearms for hunting.
3. We allow turkey hunting during the fall season only, as designated by the State. All State regulations governing the hunting of turkey must be followed.
4. We allow portable tree stands, ladders, and blinds only, and they must be removed daily (see § 27.93 of this chapter). The use of nails, wire, screws or bolts to attach a stand to a tree, or hunting from a tree into which a metal object has been driven to support a hunter is prohibited. You must keep vegetation disturbance (including tree limbs) to a minimum (see § 32.2(i)).
5. We close the Moody and Biddeford Pool divisions of the refuge to white-tailed deer and turkey hunting.
6. We allow archery on only those areas of the Little River division open to hunting.
7. We allow hunting of fox and coyote with archery or shotgun with a refuge big game permit, during State firearm deer season. You may only possess approved nontoxic shot for hunting (see § 32.2(k)) on the refuge.
9. * * *
iv. You may hunt from the roadside, except on the Wildlife Loop, at designated areas, if you possess a Maryland Department of Natural Resources issued “Universal Disability Pass.”
v. You may hunt from the roadside for waterfowl at the five designated hunting blind sites at Lake Allen.
13. We require waterfowl hunters to use trained adult retrieving dogs while hunting duck and goose within 50 yards (45 meters) of the following impounded waters: Blue Heron Pond, Lake Allen, New Marsh, and Wood Duck Pond.
i. We require dogs to be under the immediate control of their owner at all times (see § 26.21(b) of this chapter).
8. We select turkey hunters by a computerized lottery for youth, disabled, and general public hunts. We require Maryland Department of Natural Resources required documentation to accommodate hunters with disabilities.
3. * * *
ii. We prohibit the discharging of any hunting weapons before or after legal shooting hours, including the unloading of muzzleloaders.
6. We require bow hunters to wear either a cap of solid-fluorescent-orange color at all times or a vest or jacket containing back and front panels of at least 250 square inches (1,625 square centimeters) of solid-fluorescent-orange color when moving to and from their vehicle to their deer stand or their hunting spot and while tracking or dragging out their deer. We do not require bow hunters to wear solid-fluorescent-orange when positioned to hunt except during the North Tract Youth Firearms Deer Hunts, the muzzleloader seasons, and the firearms seasons, when they must wear it at all times.
12. If you wish to track wounded deer beyond 2 hours after legal sunset, you must gain consent from a refuge law enforcement officer. We prohibit tracking 3 hours after legal sunset. You must make a reasonable effort to retrieve the wounded deer, which includes next-day tracking. There is no tracking on Sundays and Federal holidays except on a case-by-case basis. Hunters authorized to track on Sundays or Federal holidays must be accompanied afield by a refuge law enforcement officer.
14. * * *
i. Conditions D1 through D13 apply.
15. * * *
i. Conditions D1 through D12 apply.
3. We allow only single-projectile shells for firearm deer hunting. We prohibit the use of buckshot for any hunting on the refuge.
8. The Fix Unit is closed to firearm deer hunting. We allow only archery deer hunting in the Fix Unit.
These additions and revisions read as follows:
1. We allow a youth hunt only in designated areas in accordance with State regulations.
2. The refuge is closed from 7:00 p.m. to 5:30 a.m.
5. You must remove all personal property, which includes stands, boats, decoys, and blinds brought onto the refuge, each day of hunting (see §§ 27.93 and 27.94 of this chapter).
9. We allow the public onto the refuge the day prior to the opening of the season for scouting purposes.
1. We are currently closed to moose hunting.
2. Conditions A2 through A5, A7, A8 and A9 apply.
6. We prohibit hunters from occupying illegally set up or constructed ground and tree stands (see conditions A5 and C5).
8. Shooting on, from, over, across, or within 30 feet of a road edge open to public vehicle transportation at a big game animal or a decoy of a big game animal is prohibited.
1. Conditions A3 through A5 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
1. We only allow an archery deer hunt for youth hunters and a firearm deer hunt for persons with disabilities by special use permit (FWS Form 3-1383-G).
2. We only allow a turkey hunt for youth hunters and persons with disabilities by special use permit (FWS Form 3-1383-G).
8. We prohibit entry to hunting areas earlier than 2 hours before legal shooting hours.
1. Conditions A3 through A5 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
2. You must remove boats, decoys, blinds, and blind materials (see § 27.93 of this chapter) brought onto the WPAs at the end of each day's hunt.
1. Conditions A2, A3, and A6 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
1. Conditions A1, A4, and A5 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
2. You must remove boats, decoys, blinds, and blind materials (see § 27.93 of this chapter) at the end of hunting hours.
1. Conditions A2 through A4 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
2. You must remove all portable hunting stands and blinds each day at the close of hunting hours (see § 27.93 of this chapter).
3. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
2. We allow non-motorized boats in areas open to waterfowl hunting during the waterfowl hunting season, and they must be launched at designated access sites.
3. You must remove boats, decoys, and blinds from the refuge following each day's hunt.
5. We prohibit hunting from March 1 through August 31.
3. Conditions A5 through A7 apply.
1. The refuge is closed to turkey hunting, except we allow a turkey hunt for youth hunters and persons with disabilities by special use permit (FWS Form 3-1383-G).
7. Turkey hunters may possess only approved nontoxic shot while in the field (see § 32.2(k)).
1. From March 1 through August 31 (the refuge Wildlife Sanctuary period), fishing is only allowed from non-motorized boats on the designated canoe route and on banks within 100 yards (both upstream and downstream) of designated access points.
2. We prohibit the taking of any mussel (clam), crayfish, frog, leech, and turtle species by any method on the refuge (see § 27.21 of this chapter).
3. We prohibit the use of dip nets, traps, or seines for collecting bait.
1. Conditions A3 through A5 apply.
2. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
These additions and revisions read as follows:
Refer to § 32.32 (Illinois) for Missouri regulations.
3. We prohibit the use of paint, non-biodegradable flagging, reflectors, tacks, or other manmade materials to mark trails or hunting locations (see § 27.61 of this chapter).
6. We require hunters to go through the Missouri Department of Conservation daily draw process at Duck Creek Conservation Area to hunt in Pool 7 and Pool 8.
7. We will only open Pool 7 for waterfowl hunting 3 days a week, when conditions allow.
1. Conditions A3, A8, and A9 apply.
2. We allow hunter access from 1
5. We allow squirrel hunting from the State opening day until the day before the State opening of archery deer season.
6. You may only use or possess approved nontoxic shot shells while in the field (see § 32.2(k)) and rifles chambered for rimfire cartridges.
7. Archery hunters may take squirrels, raccoons, and bobcats while archery deer hunting.
8. We allow raccoon hunting by special use permit during the Statewide raccoon season.
C.
1. Conditions A3, A5, A8, A9, and B2 apply.
2. We require that all hunters register at the hunter sign-in stations and complete the Big Game Harvest Report (FWS Form 3-2359) located at the exit kiosks prior to exiting the refuge.
3. We allow archery hunting for deer and turkey during the fall season.
4. We allow spring turkey hunting. You may only use or possess approved nontoxic shot shells while in the field, including shot shells used for hunting wild turkey (see § 32.2(k)).
5. You must remove all boats brought onto the refuge at the end of each day (see § 27.93 of this chapter).
6. We allow archery hunting in the Expanded General Hunt Area through October 31.
7. We allow portable tree stands only from 2 weeks before to 2 weeks after the State archery deer season with the following exception: In the Expanded General Hunt Area, you must remove all personal property.
8. We allow only one tree stand per deer hunter.
9. We allow only non-motorized boats in the Mingo Wilderness Area.
10. We require archery deer hunters to wear a hunter-orange (
These additions and revisions read as follows:
3. We allow hunting during youth waterfowl hunts in accordance with State regulations.
1. Conditions A2 and A7 apply.
4. We allow hunting during youth pheasant hunts in accordance with State regulations.
1. Hunting Access: Hunters must enter and exit the Waterfowl Hunt Area (see map in refuge Hunting and Fishing brochure) through the Waterfowl Hunt Area parking lot. All hunters, except those with a Montana disability license, must park in the Waterfowl Hunt Area parking lot to access the Waterfowl Hunt Area. For those hunters with Montana disability licenses, contact the Refuge Manager by phone or email for disability guidelines. Hunters must walk to the blind selected along mowed trails designated in the refuge Hunting and Fishing brochure. Legal entry time into the hunting area is no earlier than 2 hours before legal shooting hours. Wildlife observation, scouting, and loitering during waterfowl hunting season are prohibited at the Waterfowl Hunting Area parking lot and on the refuge road leading to the Waterfowl Hunt Area parking lot.
3. Registration (Kiosk Sign-In/Sign-Out box): Each hunter must complete the Migratory Bird Hunt Report (FWS Form 3-2361), must set the appropriate blind selector (metal flip tag) before and after hunting, and must record hunting data (hours hunted and birds harvested) on FWS Form 3-2361 before departing the hunting area.
5. We prohibit attempting to “reserve” a blind for use later in the day by depositing a vehicle or other equipment on the refuge. A hunter must be physically present in the hunting area in order to use a blind. The exceptions are blinds 2 and 7, which may be reserved for hunters with disabilities.
7. Hunters with a documented mobility disability (you must have a current year Resident with a Disability Conservation License issued by Montana Fish, Wildlife and Parks) may reserve an accessible blind in advance by contacting a refuge law enforcement officer.
13. We prohibit boats, fishing, and fires (see § 27.95 of this chapter).
19. Any mechanical decoy powered by battery or solar usage is prohibited.
1. Hunting Access: Hunters must enter and exit the hunt areas (see map in refuge Hunting and Fishing brochure) through the designated Hunter Access Parking sites. We open access points to hunters intending to immediately hunt on the refuge. We prohibit wildlife observation, scouting, and loitering at access points and parking areas. Hunters may only enter the hunt area 2 hours prior to legal hunting hours and must exit no later than 2 hours after legal hunting hours.
3. Registration (Sign-In/Sign-Out box): Each hunter must complete the Big Game Harvest Report (FWS Form 3-2359) before departing the hunting area.
4. Tree Stands and Ground Blinds: We allow each hunter the use of portable tree stands or ground blinds. All tree stands and ground blinds must be identified with a tag that has the owner's name and Montana archery license (ALS) number on it. We prohibit hunters leaving each stand/blind unattended for more than 72 hours.
10. Rallying game to another hunter and/or deer drives is prohibited.
11. We prohibit the installation or use of remote cameras on the refuge.
1. We do not allow hunting in areas posted as “Closed to Hunting” and identified in the public use leaflet.
3. We allow use of riding or pack stock on designated access routes through the refuge to access off-refuge lands as identified in the public use leaflet.
5. Hunters may possess only approved nontoxic shot while in the field (see § 32.2(k)).
6. We prohibit overnight camping and open fires (see § 27.95(a) of this chapter).
7. We prohibit retrieval of game in areas closed to hunting without a refuge retrieval permit.
9. We allow parking in designated areas only as identified in the public use leaflet.
1. Conditions B1 through B9 apply.
2. The first week of the archery elk and deer hunting season and the first week of general elk and deer hunting season are open to youth-only (ages 12-15 only) hunting. A non-hunting adult at least 18 years of age must accompany the youth hunter in the field.
3. Persons assisting disabled hunters must not be afield with a hunting firearm, bow, or other hunting device.
1. Hunters must remove all boats, decoys, portable blinds (including those made of native materials), boat blinds, and all other personal property at the end of each day (see §§ 27.93 and 27.94 of this chapter).
2. We prohibit motorboats except on the Flathead and Smith Lake Waterfowl Production Areas (WPAs) in Flathead County. Motorboats must be operated at no wake speeds.
3. We prohibit the construction or use of permanent blinds, stands, or scaffolds.
4. We allow the use of hunting dogs, provided the dog is under the immediate control of the hunter at all times during the State-approved hunting season. Commercial dog trials are not allowed. Pets must be on a leash at all other times.
5. Shotgun hunters may possess only approved nontoxic shot while in the field (see § 32.2(k)).
7. We prohibit overnight camping and open fires (see § 27.95(a) of this chapter).
1. We prohibit hunting with a shotgun capable of holding more than three shells.
2. Conditions A1 through A7 apply.
1. We allow portable tree stands and/or portable ground blinds; however, hunters must remove them and all other personal property at the end of each day (see § 27.93 of this chapter). We prohibit construction and/or use of tree stands or portable ground blinds from dimensional lumber. We prohibit the use of nails, wire, screws, or bolts to attach a stand to a tree or hunting from a tree into which a metal object has been driven (see § 32.2(i)).
2. Conditions A2, A3, A6, A7, and B1 apply.
3. Flathead, Blasdel, and Batavia WPAs are restricted to hunting with archery equipment, shotgun, traditional handgun, muzzleloader, or crossbow only.
1. We prohibit leaving or dumping any dead animal, fish or fish entrails, garbage, or litter on the refuge (see § 27.94 of this chapter).
2. We prohibit all public access on WPAs from March 1 to July 15 (Flathead County WPAs) each year to protect nesting birds.
3. Conditions A2 and A7 apply.
5. We prohibit camping along roadsides. We allow camping only in two established campgrounds. We restrict camping to 16 consecutive days within any 30-day period. We prohibit horses in the campgrounds. From March 1 to December 1, all bear attractants including, but not limited to, food, garbage, and carcasses or parts thereof, must be acceptably stored at night (unless in immediate use) and during the day if unattended. Acceptably stored means any of the following:
i. Suspended at least 10 feet high and 4 feet from any vertical support 100 yards from any camp or hiking trail;
ii. Secured in a certified bear safe container; or
iii. Secured in a hard-sided vehicle, including an enclosed camper or horse trailer.
10. We prohibit hunting and/or shooting from or onto refuge lands from
These additions and revisions read as follows:
1. We require the submission of a Big/Upland Game Hunt Application (FWS Form 3-2356). We require hunters to carry a signed refuge hunting access permit (hunt application signed by the refuge officer) while hunting. We require hunters to complete a Big Game Harvest Report (FWS Form 3-2359) and return it to the refuge at the conclusion of the hunting season.
2. We allow deer hunting with muzzleloader and archery equipment. We prohibit deer hunting with firearms capable of firing cartridge ammunition.
4. We allow deer hunting in the area defined as, “Those refuge lands situated north and west of the Niobrara River.” We allow access to this area only from designated refuge parking areas and the Niobrara River.
5. We prohibit hunting within 200 yards (180 meters) of any public use facility.
6. We allow hunter access from 2 hours before legal sunrise until 2 hours after legal sunset.
9. We require tree stands, elevated platforms, and ground blinds to be removed daily. We require hunters to clearly label unattended tree stands, elevated platforms, and ground blinds with the hunter's name and address or hunting license number legible from the ground. Tree stands, elevated platforms, and/or ground blinds may be put up no earlier than the opening day of deer season and must be removed by the last day of deer season.
10. We prohibit hunting during the Nebraska November Firearm Deer Season.
11. We prohibit the use of game carts or any other wheeled device to retrieve game on the Wilderness Area portion of the refuge that is opened for hunting.
12. We prohibit the marking of any tree or other refuge feature with reflectors, flagging, paint, or other substances.
13. We prohibit the use of electronic or photographic trail monitoring devices.
3. We prohibit the take of baitfish, reptiles, and amphibians.
4. We prohibit use or possession of alcoholic beverages while fishing on refuge lands and waters.
1. We close the refuge to the general public from legal sunset to legal sunrise; however, we allow hunter access from 2 hours before legal sunrise to 2 hours after legal sunset.
2. We only allow you to unleash dogs used to locate, point, and retrieve upland and small game and migratory birds on the refuge while hunting (see § 26.21(b) of this chapter).
1. Conditions A1 and A2 apply.
2. Coyote hunting is allowed from the Saturday closest to November 13 through March 15. Shooting hours are
1. We close the refuge to the general public from legal sunset to legal sunrise; however, anglers may enter the refuge 1 hour before legal sunrise and remain 1.5 hours after legal sunset.
2. We prohibit the take of reptiles, amphibians, and minnows, with the exception that bullfrogs may be taken on refuge lakes open to fishing.
These revisions and additions read as follows:
2. * * *
i. In the designated public hunting area, this is located in the southern portion of the Tract;
ii. To no closer than 100 yards (90 meters) to the public auto tour route;
iii. To Tuesdays, Thursdays, and Saturdays during the period when the State seasons for the Middle Tract area are open simultaneously for hunting all of the species allowed; and
iv. All hunting must cease at 1 p.m. (local time) on each hunt day.
5. We prohibit pit or permanent blinds and require removal of all waterfowl decoys and all temporary blinds/stands daily after each hunt (see § 27.93 of this chapter).
8. We do not require refuge or other special hunt permits other than those required by the State.
2. * * *
iii. On Tuesdays, Thursdays, and Saturdays during the appropriate State season for that area; and
iv. All hunting must cease at 1 p.m. (local time) on each hunt day.
2. Conditions A8 and A9 apply.
1. We allow hunting of light goose on dates to be determined by refuge staff. The permit is available through a lottery drawing (Waterfowl Lottery Application, FWS Form 3-2355) and hunters must pay a fee. Contact the refuge for more information.
2. Legal hunting hours will run from
3. Refer to the refuge hunt leaflet for designated hunting areas.
4. You may use only approved nontoxic shot while hunting (see § 32.2(k)).
5. We prohibit pit or permanent blinds and require daily removal of all waterfowl decoys, spent shells, all temporary blinds/stands, and all other personal equipment (see §§ 27.93 and 27.94 of this chapter).
6. We allow unleashed hunting and/or retrieving dogs on the refuge when hunters are legally present in areas where we allow hunters, only if the dogs are under the immediate control of hunters at all time (see § 26.21(b) of this chapter), and only to pursue species legally in season at that time.
7. We prohibit hunters and dogs from entering closed areas for retrieval of game.
8. We prohibit falconry on the refuge.
9. We prohibit canoeing, boating, or floating through the refuge on the Rio Grande.
10. We prohibit hunting any species on the Rio Grande within the refuge.
11. We prohibit overnight camping without a permit.
12. All State and Federal hunting and fishing regulations regarding methods of take, dates, bag limits, and other factors apply to all hunting and fishing on the refuge, in addition to these refuge-specific regulations.
13. Visit the refuge visitor center or Web site, and/or refer to additional on-site brochures, leaflets, or postings for additional information.
1. We allow only shotguns and archery equipment for hunting of upland game. We prohibit the use of archery equipment on the refuge except when hunting for upland and big game.
2. Conditions A2 through A13 apply.
1. Conditions A5 through A13 apply.
2. Refer to the refuge hunt leaflet for designated hunting areas.
3. Hunting on the east side of the Rio Grande is only by foot, horseback, or bicycle. Bicycles must stay on designated roads.
4. We may allow oryx hunting from the east bank of the Rio Grande to the east boundary of the refuge for population management purposes for hunters possessing a valid State permit. We may also establish special hunts of the oryx on dates established by refuge staff. Contact the refuge for more information.
5. Legal hunting hours will run from 1 hour before legal sunrise and will not extend past 1 hour after legal sunset.
6. We allow hunting of bearded Rio Grande turkey for youth hunters only on dates determined by refuge staff. All hunters must fill out FWS Form 3-2356 (Big/Upland Game Hunt Application) and pay a fee. The permit is available through a lottery drawing. If selected, you must carry your refuge special use permit (FWS Form 3-1383-G) at all times during the hunt. All hunters are required to fill out a harvest report (FWS Form 3-2359, Big Game Harvest Report) and return it to the refuge within 72 hours. Contact the refuge for more information.
7. Youth hunters age 17 and under must successfully complete a State-approved hunter education course prior to the refuge hunt. While hunting, each youth must possess and carry a card or certificate of completion.
8. Each youth hunter must remain with an adult companion age 18 or older. Each adult companion must possess and carry an adult companion permit (signed refuge youth turkey hunt brochure) and can supervise no more than one youth hunter. Adult companions may observe and call, but they cannot shoot.
9. We allow the use of temporary ground blinds only for youth turkey hunts, and hunters must remove them from the refuge daily (see § 27.93 of this chapter). It is unlawful to damage, cut, or mark any tree or other refuge structure with paint, flagging tape, ribbon, cat-eyes, or any similar marking device.
1. Condition A9 applies.
2. We allow fishing from April 1 through September 30.
3. We allow fishing from
4. We allow fishing on all canals within the refuge boundaries (Interior Drain, Riverside, Canal, and Low Flow Conveyance Channel), and unit 25AS either from the boardwalk or from shore.
5. We prohibit trotlines, bows and arrows, boats or other flotation devices, seining, dip netting, traps, using bait taken from the refuge, taking of turtle, littering, and all other activities not expressly allowed (see § 27.2l of this chapter).
6. Access to the canals is via the tour loop. We prohibit fishing in closed areas of the refuge, with the exception of the Low Flow Conveyance Channel.
7. We allow frogging for bullfrog on the refuge in areas that are open to fishing.
8. All State and Federal fishing regulations regarding methods of take, dates, creel limits, and other factors apply to all fishing on the refuge, in addition to these refuge-specific regulations.
9. We prohibit fishing for any species on the Rio Grande within the refuge.
1. Hunters are required to check in and out of the hunt area.
2. Hunters are required to complete an unexploded ordnance (UXO) training prior to entering hunt area.
3. The hunter may be accompanied by no more than three guests including their guide(s).
4. Only approved WSMR outfitters can be used.
5. All hunters must enter and exit through the Small Missile Range gate on Range Road 7.
6. All members of the hunting party are required to wear solid or camouflage-style, florescent orange (hunter's orange) clothing while away from the vehicle and in the field
7. Hunters may be escorted, but not guided, by WSMR, NMDGF, or refuge personnel or their agent(s). Check stations may be used in lieu of hunt escorts.
8. Hunters must follow photo and video policy as described by WSMR regulations.
9. Youth hunters, 16 years of age and younger, must be under the direct supervision of an adult, 18 years of age or older.
10. Persons possessing, transporting, or carrying firearms on National Wildlife Refuges must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
11. Hunters and their guests must abide by all rules established by the refuge, WSMR, and NMDGF regulations.
12. Bighorn Sheep: Hunting desert bighorn sheep is allowed on designated areas of the refuge in accordance with NMDGF and WSMR regulations and subject to the following conditions specifically for bighorn sheep:
i. If camping is allowed on WSMR lands, then camping is allowed at Little San Nicholas Camp on the refuge.
ii. Four-wheeled all-terrain vehicle (ATV) use by hunters or members of their hunting party is prohibited on the refuge, although ATVs may be used to retrieve game on WSMR.
iii. Hunters using livestock (i.e., horses or mules) must provide only weed-free feed to their animals while on the refuge.
iv. Hunters or other members of the hunting party are not allowed to hunt small game or other species during desert bighorn ram hunts. Only bighorn sheep may be hunted by individuals with ram tags.
13. Oryx. Hunting oryx is allowed on designated areas of the refuge in accordance with NMDGF and WSMR regulations and subject to the following condition specifically for oryx: Four-wheeled all-terrain vehicle (ATV) use by hunters or members of their hunting party is allowed on the refuge and WSMR only to retrieve game.
1. Legal hunting hours will run from
2. The refuge may designate special youth and/or persons with disabilities hunting days during the regular game bird season. This will apply to areas and species that are currently part of the refuge's hunting program. Contact the refuge for more information.
3. Refer to the refuge hunt leaflet for designated hunting areas.
4. You may use only approved nontoxic shot while hunting (see § 32.2(k)) in the field, in quantities of 25 or fewer.
5. We prohibit pit or permanent blinds and require daily removal of all waterfowl decoys, spent shells, all temporary blinds/stands, and all other personal equipment (see §§ 27.93 and 27.94 of this chapter).
6. We allow unleashed hunting and/or retrieving dogs on the refuge when hunters are legally present in areas where we allow hunters, only if the dogs are under the immediate control of hunters at all time (see § 26.21(b) of this chapter), and only to pursue species legally in season at that time.
7. We prohibit hunters and dogs from entering closed areas for retrieval of game.
8. All State and Federal hunting regulations regarding methods of take, dates, bag limits, and other factors, apply to all hunting on the refuge, in addition to these refuge-specific regulations.
9. Visit the refuge visitor center or Web site, and/or refer to additional on-site brochures, leaflets, or postings for additional information.
1. You must submit a Big/Upland Game Hunt Application (FWS Form 3-2356) to hunt on the refuge. We require hunters to possess a signed refuge hunt permit (name and address only) at all times while scouting and hunting on the refuge. We charge a fee for all hunters except youth age 16 and younger.
2. We provide hunters with hunt maps and parking permits (name only), which they must clearly display in their vehicle. Hunters who park on the refuge must park in identified hunt parking areas.
3. We prohibit the use of all-terrain vehicles (ATVs) on the refuge.
4. We prohibit baiting on refuge lands (see § 32.2(h)).
5. We require hunters to wear (in a conspicuous manner) a minimum of 400 square inches (2,600 square centimeters) of solid-color, hunter-orange clothing or material on the head, chest, and back.
6. We prohibit hunters using or erecting permanent blinds.
7. We allow pre-hunt scouting beginning 2 weeks prior to the bow opener and continuing through the end of the deer season.
8. The refuge only allows archery equipment (crossbows allowed) to harvest deer.
These revisions and additions read as follows:
4. You may possess only approved nontoxic shot while in the field (see § 32.2(k)).
1. We open the refuge daily from 5 a.m. to 10 p.m.
2. You may possess only approved nontoxic shot while in the field (see § 32.2(k)).
3. Upland game bird and rabbit season opens on the day following the close of the regular firearm deer season through the end of the State season.
4. You may use hunting dogs for retrieval of upland game. Dogs must be under direct control.
5. Turkey hunting is subject to all State regulations, license requirements, units, and dates.
6. Fox hunting is allowed on the day following the regular firearm deer season and closes on March 31.
7. We prohibit hunting the area around refuge headquarters, buildings, shops, and residences. We post these areas with “Closed to Hunting” signs.
8. We proibit the use of snowmobiles, all-terrain vehicles (ATVs), off-highway vehicles (OHVs), utility terrain vehicles (UTVs), bicycles, or similar vehicles on the refuge.
9. We prohibit the use of horses, mules, or similar livestock on the refuge during all hunting seasons.
C.
2. We prohibit hunting the area around the refuge headquarters, buildings, shops, and residences. We post these areas with “Closed to Hunting” signs.
3. We open nine designated Public Hunting Areas (as delineated on the refuge hunting brochure map available at the refuge headquarters or posted on refuge information boards and/or kiosks) on the refuge for deer hunting during the regular firearms issued from the State.
4. You must possess and carry a refuge permit to hunt antlered deer on the refuge outside the nine Public Hunting Areas during the regular firearms season.
5. We only allow the use of portable tree stands and ground blinds. We prohibit leaving stands and blinds overnight (see § 27.93 of this chapter) on the refuge.
6. We prohibit the use of flagging, trail markers, paint, reflective tacks, or other types of markers (see § 27.93 of this chapter).
7. We prohibit the use of trail cameras and other electronic surveillance equipment.
8. We prohibit entry to the refuge before 12 p.m. (noon) on the first day of the respective bow, gun, or muzzleloader deer hunting seasons. Refuge roads open to the public may be accessed before 12 p.m. (noon).
9. Conditions B8 and B9 apply.
2. We allow boat and bank fishing only on specifically designated portions of the refuge as delineated on maps, leaflets and/or signs, available at the refuge headquarters or posted on refuge information boards.
3. We only allow non-motorized boats or boats with electric motors.
4. Boat fishing is allowed from May 1 through September 30.
5. We prohibit entry to or fishing from any water control structure.
6. We open all refuge waters to ice fishing. Ice fishing access is limited to foot traffic only.
7. We allow the use of portable fish houses for ice fishing. Portable fish houses may not be left out overnight.
8. Conditions B8 and B9 apply.
2. We allow deer gun hunting on designated areas of the refuge (see refuge brochure/maps for designated areas) in accordance with State regulations.
1. We allow boats from May 1 through September 30.
2. We allow ice fishing on designated portions of Tewaukon and Sprague Lakes (see refuge brochure/maps for designated areas) in accordance with State regulations.
2. We require that hunters check out at the refuge check station with a State-issued Big Game Harvest Report no later than 1 hour after the conclusion of their controlled hunt.
a. Revising paragraph A under Bandon Marsh National Wildlife Refuge.
b. Adding, in alphabetical order, an entry for Baskett Slough National Wildlife Refuge.
These revisions and additions read as follows:
1. The established days for waterfowl hunting on the Ni-les'tun Unit will be Wednesday, Saturday, and Sunday.
2. Only portable blinds or blinds constructed of on-site dead vegetation or driftwood may be used (see § 27.51 of this chapter).
3. All blinds, decoys, shotshell hulls, and other personal equipment and refuse must be removed from the refuge at the end of each day (see §§ 27.93 and 27.94 of this chapter).
4. Only federally approved nontoxic shot may be used or be in hunters' possession while hunting on the refuge (see § 32.2(k)).
5. Hunters accessing the Ni-les'tun Unit via boat must secure or anchor boats and use established boat launch areas. Hunters may park boats within the marsh while they hunt, but boats landing on the bank of the Coquille River within the Ni-les'tun Unit will be required to park within a designated location.
6. Access to the refuge will be prohibited from 1 hour after sunset to 1 hour before sunrise.
7. Hunters may use dogs as an aid to retrieving waterfowl during the hunting season; however, dogs must remain under control of the handler at all times. Dogs must be in a vehicle or on a leash until they are in the marsh as a part of the hunt.
8. Hunters may enter closed areas of the refuge only to retrieve downed birds.
1. Only hunters 15 years of age and younger are allowed to participate in the Youth Waterfowl Hunt. Youths must be accompanied by an adult 21 years of age or older.
2. Blinds, decoys, and other personal property must be removed at the end of each day's hunt (see § 27.93 of this chapter).
3. Vehicles are restricted to designated public use roads and designated parking areas.
4. We prohibit dogs on the refuge, except for hunting dogs engaged in authorized hunting activities, and under the immediate control of a licensed hunter (see § 26.21(b) of this chapter).
5. You may possess only approved nontoxic shells for hunting during the early September Goose Hunt and the Youth Duck Hunt.
6. Open fires are not allowed.
7. Waterfowl and goose permit (name only) hunters must check back to the refuge check station prior to leaving the refuge and submit a Migratory Bird Hunt Report (FWS Form 3-2361).
8. Goose hunters are required to space themselves no less than 200 yards apart from each other during the early September Goose Hunt.
9. No overnight camping or after-hours parking is allowed on the refuge.
10. No hunting is allowed from refuge structures, observation blinds, boardwalks, or similar structures.
11. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and refuge-specific regulations in this part 32).
2. We prohibit permanent blinds. You must remove all personal property, including decoys and boats, by 1 hour after legal sunset (see §§ 27.93 and 27.94 of this chapter).
3. We open the refuge for day-use access from 1
4. We prohibit dogs on the refuge, except for hunting dogs engaged in authorized hunting activities, and under the immediate control of a licensed hunter (see § 26.21(b) of this chapter).
4. We open the refuge for hunting access from 1
5. We prohibit dogs on the refuge, except for hunting dogs engaged in authorized hunting activities, and under the immediate control of a licensed hunter (see § 26.21(b) of this chapter).
1. We allow nonmotorized boats or boats equipped with only electric motors on the North and South Malheur Lake Hunt Units. All boats are prohibited on the Buena Vista Hunt Unit.
2. We allow only portable and temporary hunting blinds. We prohibit permanent structures.
3. You must remove boats, decoys, blinds, materials and all personal property at the end of each day (see § 27.93 of this chapter).
5. We may close any refuge access easement road, refuge road, or hunting access point for public safety, or when travel may be detrimental to the area.
6. The North Malheur Lake Hunt Unit is open during all established State of Oregon migratory bird hunting seasons.
7. The South Malheur Lake and Buena Vista Hunt Units open for migratory bird hunting on the fourth Saturday of October and close at the end of the State waterfowl season.
8. The South Malheur Lake Hunt Unit may be accessed from the Boat Launch Road, or from the North Malheur Lake Hunt Unit, but no earlier than the fourth Saturday of October.
1. You may possess only approved nontoxic shot while in the field (see § 32.2(k))
2. We allow hunting of upland game species on designated areas of the Blitzen Valley east of Highway 205 from the fourth Saturday in October through the end of the State pheasant season.
3. We allow hunting of upland game species on the North Malheur Lake Hunt Unit concurrent with the State pheasant season.
4. We allow hunting of all upland game species on designated areas of the refuge west of Highway 205 and south of Foster Flat Road, and on designated areas of Krumbo Creek east of the Krumbo Reservoir in accordance with State regulations.
5. We may close any refuge access easement road, refuge road, or hunting access point for public safety, or when travel may be detrimental to the area.
1. We prohibit ice fishing on and all public access to any ice formations.
2. We allow fishing year-round on Krumbo Reservoir and in the Blitzen River, East Canal, and Mud Creek upstream from and including Bridge Creek.
3. Fishing is allowed on the north bank of the Blitzen River from Sodhouse Lane downstream to the bridge on the Boat Landing Road between August 1 and September 15.
4. We prohibit boats on public fishing areas, except that nonmotorized boats and boats equipped with only electric
5. We may close any refuge access easement road, refuge road, or fishing access point for public safety, or when travel may be detrimental to the area.
1. Only federally approved nontoxic shot may be used or be in hunters' possession while hunting on the refuge (see § 32.2(k)).
2. Only portable blinds or blinds constructed of on-site dead vegetation or driftwood may be used (see § 27.51 of this chapter).
3. All blinds, decoys, shotshell hulls, and other personal equipment and refuse must be removed from the refuge at the end of each day (see §§ 27.93 and 27.94 of this chapter).
4. Access to the refuge will be prohibited from 1 hour after sunset to 2 hours before sunrise.
5. Hunters may use dogs as an aid to retrieving waterfowl during the hunting season; however, dogs must remain under control of the handler at all times (see § 26.21(b) of this chapter). Dogs must be in a vehicle or on a leash until they are in the marsh as a part of the hunt.
6. Hunters may enter closed areas of the refuge only to retrieve downed birds.
1. The established days for waterfowl hunting on the Millport Slough South Unit will be Wednesday, Saturday, and Sunday.
2. Only federally approved nontoxic shot may be used or be in hunters' possession while hunting on the refuge (see § 32.2(k)).
3. Only portable blinds or blinds constructed of on-site dead vegetation or driftwood may be used (see § 27.51 of this chapter).
4. All blinds, decoys, shotshell hulls, and other personal equipment and refuse must be removed from the refuge at the end of each day (see §§ 27.93 and 27.94 of this chapter).
5. Access to the refuge will be prohibited from 1 hour after sunset to 2 hours before sunrise.
6. The use or possession of alcoholic beverages while hunting is prohibited.
7. Hunters may use dogs as an aid to retrieving waterfowl during the hunting season; however, dogs must remain under control of the handler at all time (see § 26.21(b) of this chapter). Dogs must be in a vehicle or on a leash until they are in the marsh as a part of the hunt.
1. You must submit a Migratory Bird Hunt Application (FWS Form 3-2357) to hunt on the refuge. We require hunters to possess a signed refuge hunt permit (name and address only) at all times while scouting and hunting on the refuge. We charge a fee for all hunters except youth age 16 and younger.
2. We issue one companion permit (no personal information) at no charge to each hunter. We allow companions to observe and/or call, but not to shoot a firearm or bow. Companion and hunters must set up in the same location. We provide hunters with hunt maps and parking permits (name only), which they must clearly display in their vehicle. Hunters who park on the refuge must park in identified hunt parking areas.
3. We prohibit the use of all-terrain vehicles (ATVs) on the refuge.
4. We require hunters to wear (in a conspicuous manner) solid-color, hunter-orange clothing or material, consistent with Pennsylvania Game Commission regulations.
5. We prohibit hunters using or erecting permanent or pit blinds.
6. We require hunters to remove all hunting blind material, boats, and decoys from the refuge at the end of each hunting season (see § 27.93 of this chapter).
7. We allow pre-hunt scouting concurrent with big game scouting continuing through the end of the migratory bird season; however, we prohibit the use of dogs during scouting.
8. Dogs may only be used for waterfowl hunting. We limit the number of dogs per waterfowl hunting party to no more than two dogs.
9. We allow hunters to enter the refuge 2 hours before shooting time (as prescribed by Pennsylvania Game Commission regulations), and they must leave no later than 2 hours after the end of shooting time.
1. We require hunters to submit a Big/Upland Game Hunt Application/Permit (FWS Form 3-2356) to hunt on the refuge. We require hunters to possess a signed refuge hunt permit (name and address only) at all times while scouting and hunting on the refuge. We charge a fee for all hunters except youth age 16 and younger.
2. Conditions A3, A4, A5, and A9 apply.
3. We prohibit scouting.
4. No dogs allowed.
5. We prohibit baiting on refuge lands (see § 32.2(h)).
6. We only allow hunting from 1 half hour before legal sunrise to legal sunset. We prohibit night hunting.
1. Conditions A3, A4, A5, A9, B1, and B5 apply.
2. We allow pre-hunt scouting beginning 2 weeks prior to the bow opener and continuing through the end of the deer season.
3. We require hunters to remove all portable hunting blind materials from the refuge at the end of each hunting season (see § 27.93 of this chapter).
These revisions and additions read as follows:
1. The game bird season begins the Monday following closure of the refuge firearms deer season and continues through the first Sunday in January.
3. Hunters are not allowed to enter the refuge each day until 10:00 a.m.
5. Hunters may place their tree stands, elevated platforms, and portable ground blinds on the refuge only during their designated licensed season. These stands must be removed by the end of their designated licensed season (see § 27.93 of this chapter).
10. Trail monitor cameras are not allowed on the refuge.
1. You must remove boats, decoys, portable blinds, other personal property, and any materials brought onto the area for blind construction by the end of each day (see §§ 27.93 and 27.94 of this chapter).
2. We prohibit bringing any type of live or dead vegetation onto the refuge for any purpose at any time.
3. We allow the use of motorized boats.
4. You must remove portable ground blinds, trail cameras, and other personal property by the end of each day (see §§ 27.93 and 27.94 of this chapter).
1. You must remove boats, motor vehicles, fishing equipment, and other personal property (excluding ice houses) by the end of each day (see §§ 27.93 and 27.94 of this chapter).
2. We allow the use of motorized boats.
These additions and revisions read as follows:
1. Each adult hunter 17 years of age or older must possess an Annual Public Hunting Permit (APH) administered by the State.
2. Hunters may enter the refuge hunt units no earlier than 4 a.m. Hunting starts at the designated legal shooting time and ends at 12 p.m. (noon). Hunters must leave refuge hunt units by 12:30 p.m.
3. Youth under 17 years of age are required to be under the immediate supervision of a duly permitted, authorized supervising adult, age 18 or older.
4. Shotguns with nontoxic shot are the legal means that may be used or possessed during these hunts (see § 32.2(k)).
5. We prohibit pits and permanent blinds. We allow portable blinds or temporary natural vegetation blinds. You must remove all blinds from the refuge daily (see § 27.93 of this chapter).
6. We only allow vehicular travel on designated roads and in parking areas.
7. All hunters are transported to and from their hunting location by Texas Parks and Wildlife Department (TPWD) personnel.
8. Hunter check-in begins at 5:00 a.m. and ends at 5:30 a.m. All hunters are required to check in and out at the hunter check station located on the north end of the Island.
9. Hunters will select hunt sites on a first-come, first-served basis.
10. Waterfowl hunts are morning only, begin at legal shooting time, and end at 12:00 p.m. (noon).
11. Dogs accompanying hunters must be under the immediate control of handlers at all times (see § 26.21(b) of this chapter).
12. Hunters must remove all decoys, boats, spent shells, marsh chairs, and other equipment from the refuge daily (see §§ 27.93 and 27.94 of this chapter). We prohibit the use of plastic flagging, reflectors, or reflective tape.
13. Hunting of geese is prohibited.
14. The entire refuge or any portion thereof may immediately close to hunting in the event of whooping cranes present within the hunt area.
1. On the Blackjack Unit, we allow hunting subject to the following conditions:
i. We may immediately close the entire refuge or any portion thereof to hunting in the event of the appearance of whooping crane in the hunt area or in order to conduct habitat management practices as required during the available windows (
ii. We prohibit the use of dogs to trail game.
iii. We prohibit target practice or any nonhunting discharge of firearms.
iv. We prohibit hunting with the aid of bait, salt, or any ingestible attractant (see § 32.2(h)). We allow sprays and other non-ingestible attractants.
v. Firearm hunters must wear a total of 400 square inches (2,600 square centimeters) hunter orange, including 144 square inches (936 square centimeters) visible in front and 144 square inches visible in rear. Some hunter orange must appear on head gear.
vi. All hunters must fill out FWS Form 3-2359 (Big Game Harvest Report) upon leaving the hunt area.
vii. For the archery and rifle season, hunters must obtain a refuge permit (name only required) and pay a fee. The hunter must tape the smaller vehicle tag on the driver's side windshield. The hunter must sign the larger permit and possess it at all times while on the refuge.
viii. We define youth hunters as ages 9 to 16. A Texas-licensed, adult hunter, age 17 or older who has successfully completed a Hunter Education Training Course, must accompany youth hunters. We exempt those persons born prior to September 2, 1971, from the Hunter Education Training course requirement. Each adult hunter may supervise two youth hunters.
ix. We will annually designate bag limits in the refuge hunt brochure.
x. We allow archery hunting within the deer season for the county on specified days listed in the refuge hunt brochure.
xi. We allow firearm hunting within the deer season for the county on specified days listed in the refuge hunt brochure.
xii. Hunters must clean all harvested game in the field.
xiii. We prohibit hunting on or across any part of the refuge road system, or hunting from a vehicle on any refuge road or road right-of-way. Hunters must remain at a minimum of 100 yards (90 meters) off any designated refuge road or structure.
xiv. We prohibit hunters using handguns during archery and rifle hunts. Hunters may use bows and arrows only in accordance with State law. We prohibit use of crossbows for hunting unless we issue a special use permit (FWS Form 3-1383-G) due to “upper 2 limb” disability. We allow the use of archery equipment and centerfire rifles for hunting in accordance with State law.
xv. We allow use of portable hunting stands, stalking of game, and still hunting. There is a limit of two portable stands per permitted hunter. A hunter may set up the portable stands during the scouting week, but must remove them when the hunter's permit expires (see § 27.93 of this chapter). We prohibit hunters from driving nails, spikes, or other objects into trees or hunting from stands secured with objects driven into trees (see § 32.2(i)). We prohibit the building of pits and permanent blinds.
xvi. We prohibit blocking of gates and roadways (see § 27.31(h) of this chapter). We prohibit vehicles operating off-road for any reason. Hunters must park vehicles in such a manner as to not obstruct normal vehicle traffic.
xvii. We allow the use of only biodegradable flagging tape to mark trails and hunt stand location during the archery and rifle hunts on the refuge. We color-code the flagging tape used each weekend during the rifle hunts. Hunters must use the designated flagging tape color specified for particular hunt dates. We provide this information on the refuge hunt permit and in refuge regulations sent to permittees. Hunters must remove flagging (see § 27.93 of this chapter) at the end of the hunt. The hunter must write his/her last name in black permanent marker on the first piece of flagging tape nearest the adjacent designated roadway.
xiii. We prohibit camping.
2. On the Matagorda Island Unit, we allow hunting subject to the following conditions:
i. Big Game Hunting Blackjack Unit conditions: C.1.i through C.1.vi apply.
ii. Special permits are issued by lottery drawing through the TPWD Public Hunting Program for big game hunts.
iii. TPWD staff will transport all hunters to and from the designated hunting stand.
iv. All hunters are required to stay in their designated stand unless they are retrieving their game. Stalking of game is prohibited.
v. For hunts administered by TPWD, youth hunters are not required to complete a Hunter Education Training Course. However, supervising adults born on or after September 2, 1971, must have passed a Hunter Education Training Course or possess a State-issued deferral.
vi. Each adult hunter may supervise up to two youth hunters.
vii. Hunters can clean all harvested game in the field or at the designated cleaning area at the headquarters.
viii. All deer harvested during the hunt will be tagged with a TPWD-issued Special Drawn Legal Deer Tag.
ix. Hunters are allowed to camp in the designated camping area.
3. On the Tatton Unit, we allow hunting subject to the following conditions:
i. Big Game Hunting Blackjack Unit conditions: C.1.i through C.1.v apply.
ii. We define youth hunters as ages 9 to 16. All hunters born after September 2, 1971 must have completed a State-certified hunter education course for refuge administered hunts. A Texas-licensed, adult hunter, age 17 or older who has successfully completed a Hunter Education Training Course, must accompany youth hunters. We exempt those persons born prior to September 2, 1971, from the Hunter Education Training course requirement.
iii. Hunters are transported to and from their hunting location via government vehicles.
2. Hunting allowed in designated area(s) from noon to sunset.
3. Refuge will set the bag limits.
4. You may possess only approved nontoxic shot for hunting while in the field (see § 32.2(k)).
5. Refuge permits (name only) are required with payment of a hunt fee.
6. Dogs are allowed to retrieve game birds during the hunt, but the dogs must be under control of the handler at all times and not allowed to roam free (see § 26.21(b) of this chapter).
7. Hunters must be at least 12 years of age. An adult 21 years of age or older must accompany hunters between the ages of 12 and 17 (inclusive) as per State regulations.
9. The entire refuge or any portion thereof may be closed to hunting for the protection of resources or public safety as determined by the Refuge Manager.
11. Hunter may bring up to two guests. Guests may not use a hunting firearm. Guests must be with the hunter at all times.
1. Hunting is permitted consistent with the State season.
2. Hunters are required to check in and out daily at designated check station(s).
3. Weapons will be consistent with State and Federal regulations.
4. The entire refuge or any portion thereof may be closed to hunting for the protection of resources or public safety as determined by the Refuge Manager.
5. Hunters must be at least 12 years of age. An adult 21 years of age or older must accompany hunters between the ages of 12 and 17 (inclusive) as per State regulations. This adult may supervise no more than two hunters.
6. The refuge will set the bag limits.
7. Hunters must visibly wear 400 square inches (2,600 square centimeters) of hunter orange on the outermost layer of the head, chest, and back, which must include a hunter-orange hat or cap.
8. Refuge permits and the payment of a hunt fee are required.
9. Dogs are not allowed for hunting.
10. Vehicles may only be operated on designated roads and parking areas.
11. Off road use of all-terrain vehicles (ATVs) is prohibited, except to retrieve bagged game.
12. Standby hunting permits are issued only if openings are available on the day of each hunt on a first-come, first-served basis. Contact Refuge Manager for details.
13. The use or possession of bait is prohibited during scouting or hunting (see § 32.2(h)). Bait is considered anything that may be eaten or ingested by wildlife. Scent attractants are allowed.
14. A hunter may bring one guest. Guest may not use a hunting firearm or other hunting weapon (archery). Guest
1. Conditions B1 through B14 apply.
4. We allow any-legal-weapon elk hunting for youth, disabled, and depredation pool hunters during State seasons subject to refuge regulations.
5. We allow archery elk hunting during the general and the Uintah Basin extended archery elk hunts during State seasons subject to refuge regulations.
6. We are closed for the general any-legal-weapon (rifle) and muzzleloader bull elk hunts.
7. We allow any-legal-weapon elk hunting during limited late season antlerless elk hunts starting on December 1 during State seasons subject to refuge regulations.
1. Shooting across, over, or within 10 feet of the traveled portion of any gravel road is prohibited in the interest of public safety (see §§ 25.71 of this chapter).
2. You may only use portable blinds.
3. We allow the use of retrieving, flushing, pointing, and pursuit dogs; however, dogs must be under control as is reasonable and customary for that activity, such as voice command or remote telemetry (see § 26.21(b) of this chapter).
4. We prohibit the use of all-terrain and off-highway vehicles (ATVs and OHVs).
5. You must remove all blinds, decoys, shell casings, and other personal equipment and refuse from the refuge at the end of each hunt day (see §§ 27.93 and 27.94 of this chapter).
1. Conditions A1 through A4 apply.
2. To monitor and mitigate potential disturbances to wildlife and neighboring landowners, raccoon hunters hunting at night with dogs will require a special use permit (FWS Form 1383-G) issued by the refuge manager.
1. Conditions A1 through A4 apply.
2. We allow only temporary tree stands and you must remove them (see § 27.93 of this chapter) by the end of the final deer season. Your name and address must be clearly visible on the tree stand. We prohibit nails, screws, or screw-in climbing pegs to build or access a stand (see § 32.2(i)).
3. Moose may be retrieved at the Nulhegan Basin Division by a commercial moose hauler, subject to a special use permit (FWS Form 1383-C) issued by the refuge manager.
1. Hunt regulations, hunting application procedures, seasons, methods of hunting, maps depicting areas open to hunting, and the terms and conditions under which we issue hunting permits are available on the refuge's Web site.
5. All selected and standby applicants must enter the refuge between 4 a.m. and 4:30 a.m. on each hunt day. We may issue standby hunters permits (name only) to fill vacant slots by lottery. Hunting hours will comply with State laws.
12. We allow scouting on designated days prior to the start of each refuge hunt period. Hunters may enter the hunt zones on foot, on bicycle, or through transportation provided by the refuge only. Scouts must wear 400 square inches (2,600 square centimeters) of visible blaze orange.
13. Hunters may go to Hunt Zone 1 (Long Island) only by hand-launched watercraft (canoe, punt, rowboat, and similar watercraft) from the canoe launch at refuge headquarters. Your boat must meet Coast Guard safety requirements. We prohibit use of trailers.
These revisions and additions read as follows:
1. You may possess only approved nontoxic shot for hunting (see § 32.2(k)).
2. You may not shoot or discharge any hunting firearm from, across, or along a public highway, designated route of travel, road, road shoulder, road embankment, or designated parking area.
3. We prohibit permanent blinds. You must remove all personal property,
4. We prohibit hunting along refuge-owned shorelines of Hunting and Price Islands where it parallels Steamboat Slough.
5. We open the refuge for hunting access from 1
6. We prohibit dogs on the refuge, except for hunting dogs engaged in authorized hunting activities, and under the immediate control of a licensed hunter (see § 26.21(b) of this chapter).
9. We require hunters to sign in and out each day at the refuge headquarters. When signing out for the day, you must report hunting success, failure, and any hit-but-not retrieved animals on the Big Game Harvest Report (FWS Form 3-2359).
6. On the Peninsula Unit, we allow hunting subject to the following conditions: On the east shoreline of the Peninsula Unit, we allow hunting only from established numbered blind sites, assigned on a first-come, first-served basis, and we require hunters to remain within 100 feet (30 meters) of marked posts unless retrieving birds or setting decoys.
3. We limit hunting of dusky Canada goose in accordance with State regulations and quotas. The State defines dusky Canada goose as a dark breasted Canada goose, as determined by a Munsell color chart 10 YR, 5 or less, with a culmen (bill) length of 40 to 50 millimeters (1.6 to 2 inches). We will close the refuge goose season early if the dusky Canada goose harvest reaches the refuge quota assigned by the State.
5. Prior to entering the hunt area, you must pay a recreation user fee, obtain a blind assignment, and obtain a Migratory Bird Hunt Report (FWS Form 3-2361). You must carry the Migratory Bird Hunt Report while hunting as proof of blind assignment and user fee payment.
11. You may possess only approved nontoxic shotshells for hunting (see § 32.2(k)) in quantities of 25 or fewer per day.
13. Prior to switching blinds, you must first report to the refuge check station to obtain a new blind assignment. You must submit an accurate Migratory Bird Hunt Report (FWS Form 3-2361) for the blind being vacated, and obtain a new Migratory Bird Hunt Report for the new blind.
14. Prior to leaving the hunt area, you must check out at the refuge check station, submit an accurate Migratory Bird Hunt Report (FWS Form 3-2361), and present all harvested birds for inspection by check station personnel.
17. Persons possessing, transporting, or carrying firearms on national wildlife refuges must comply with all provisions of State and local law. Persons may only use (discharge) firearms in accordance with refuge regulations (see § 27.42 of this chapter and specific refuge regulations in this part 32).
1. Prior to entering the hunt area at the Riekkola and Tarlatt Units, all hunters are required to obtain and carry a Migratory Bird Hunt Application (FWS Form 3-2357), pay a recreation user fee, obtain a blind assignment, and report waterfowl taken per instructions on the Migratory Bird Hunt Report (FWS Form 3-2361).
2. At the Riekkola and Tarlatt Units, hunters may take ducks and coots only coincidental to hunting geese.
3. Goose hunting is allowed on Wednesday and Saturday in the Riekkola and Tarlatt Units only from established blinds.
4. At the Riekkola and Tarlatt Units, you may possess no more than 25 approved nontoxic shells per day while hunting.
5. You may possess only approved nontoxic shot for hunting (see § 32.2(k)).
6. You may not shoot or discharge any hunting firearm from, across, or along a public highway, designated route of travel, road, road shoulder, road embankment, or designated parking area.
7. We prohibit camping on the refuge except in designated campgrounds on Long Island for up to 14 days.
8. We open the refuge for hunting access from 1
9. We require dogs to be kept on a leash, except for hunting dogs engaged in authorized hunting activities, and under the immediate control of a licensed hunter (see § 26.21(b) of this chapter). We prohibit dogs on Long Island and on beaches within the Leadbetter Point Unit.
10. Access to the hunt area is by foot or boat access only. We allow bicycles on designated roads and trails only. Mobility-impaired hunters should consult the refuge manager for allowed conveyances.
11. We prohibit permanent blinds. You must remove all personal property, including decoys and boats, by 1 hour after legal sunset (see §§ 27.93 and 27.94 of this chapter).
1. Hunters are required to obtain and carry a Big/Upland Game Hunt Application (FWS Form 3-2356) and report game taken, hours hunted, and name/address/date on the Upland/Small Game/Furbearer Report (FWS Form 3-2362).
2. Archery hunting only.
3. You may not shoot or discharge a firearm on Long Island.
4. Dogs are not allowed on Long Island.
5. Conditions A7 through A10 apply.
6. We prohibit fires on the refuge, except in designated campgrounds on Long Island (see § 27.95(a) of this chapter).
1. At Long Island hunters must obtain and carry a Big/Upland Game Hunt Application (FWS Form 3-2356) and report game taken, hours hunted and name/address/date on the Big Game Harvest Report (FWS Form 3-2359).
2. At Long Island, only archery hunting is allowed, and hunting firearms are prohibited.
3. Bear hunting is prohibited on any portion of the refuge except Long Island.
4. The use of centerfire or rimfire rifles is prohibited within the Lewis, Porter Point, and Riekkola Units.
5. Dogs are prohibited.
6. Conditions A7 through A10 and B6 apply.
7. We prohibit construction or use of permanent blinds, platforms, ladders, or screw-in foot pegs.
8. You must remove all personal property, including stands, from the refuge by 1
9. Tree stands may stay in place for 3 days and must be labeled with the hunter's name and phone number, and the date the stand was set-up. The stand may be set-up 1
5. You may only hunt snowshoe hare during the season for cottontail rabbit.
1. We prohibit hunting of migratory game birds in areas of the refuge indicated on the Cokeville Meadows National Wildlife Refuge Hunting Brochure and marked by signs as closed to all hunting or closed to migratory bird hunting.
2. You may only possess approved nontoxic shot while in the field (see § 32.2(k)).
3. We prohibit pits and permanent blinds.
4. You may use portable blinds or blinds constructed of natural dead vegetation (see § 27.51 of this chapter).
5. You must remove all decoys, shell casings, portable and temporary blinds, and other personal equipment (see §§ 27.93 and 27.94 of this chapter) from the refuge at the end of each day.
6. We prohibit possession or consumption of any alcoholic beverage while hunting (see § 32.2(j)).
7. Hunters may not enter closed areas to retrieve animals legally shot in an open area unless authorization has been given by a refuge employee or State Conservation Officer. Permission must be obtained from private landowners before attempting to retrieve game on private land.
8. Dogs must be leashed and/or under the direct control of a handler (see § 26.21(b) of this chapter). The use of dogs to find and retrieve legally harvested migratory game birds is allowed.
9. Hunters must park in a Designated Hunter Parking Area, as identified by signs.
10. Hunters are required to access and exit the hunting areas from a Designated Hunter Parking Area only. Drop off or pick up of hunters is prohibited except at Hunter Designated Parking Areas.
11. Hunters may only access the refuge 1 hour before legal sunrise until 1 hour after legal sunset.
1. Conditions A2 through A7 and A9 through A11 apply.
2. We prohibit hunting of upland game species in areas of the refuge indicated on the Cokeville Meadows National Wildlife Refuge Hunting Brochure and marked by signs as closed to all hunting.
3. Dogs must be leashed and/or under the direct control of a handler. The use of dogs to find and retrieve legally harvested upland game birds, cottontail rabbits, and squirrels is allowed and encouraged. Dogs may not be used to chase red fox, raccoon, striped skunk, or any other species not specifically allowed in A8 or this paragraph.
4. Red fox, raccoon, and striped skunk may be taken on the refuge by licensed migratory bird, big game, or upland/small game hunters from September 1 until the end of the last open big game, upland bird, or small game season. Red fox, raccoon, or striped skunk that is harvested must be taken into possession and removed from the refuge.
5. We prohibit hunting of sage grouse.
1. Conditions A3 through A7 and A9 through A11 apply.
2. We prohibit hunting of big game in areas of the refuge indicated on the Cokeville Meadows National Wildlife Refuge Hunting Brochure and marked by signs as closed to all hunting.
3. You may hunt with the aid of a temporary tree stand that does not require drilling or nailing into the tree. All personal property, including temporary tree stands, must be removed at the end of each day (see §§ 27.93 and 27.94 of this chapter).
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and public meeting.
The Energy Policy and Conservation Act of 1975 (EPCA), as amended, prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including automatic commercial ice makers (ACIM). EPCA also requires the U.S. Department of Energy (DOE) to determine whether more-stringent, amended standards would be technologically feasible and economically justified, and would save a significant amount of energy. In this notice, DOE proposes amended energy conservation standards for automatic commercial ice makers. The notice of proposed rulemaking also announces a public meeting to receive comment on these proposed standards and associated analyses and results.
DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) before and after the public meeting, but no later than May 16, 2014. See section VII, “Public Participation,” for details.
DOE will hold a public meeting on Monday, April 14, 2014, from 9 a.m. to 4 p.m., in Washington, DC. The meeting will also be broadcast as a webinar. See section VII, “Public Participation,” for webinar registration information, participant instructions, and information about the capabilities available to webinar participants.
The public meeting will be held at the U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585. To attend, please notify Ms. Brenda Edwards at (202) 586-2945. Persons can attend the public meeting via webinar. For more information, refer to section VII, “Public Participation.”
Any comments submitted must identify the NOPR for Energy Conservation Standards for Automatic Commercial Ice Makers and provide docket number EERE-2010-BT-STD-0037 and/or regulatory information number (RIN) 1904-AC39. Comments may be submitted using any of the following methods:
1.
2.
3.
4.
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Office of Energy Efficiency and Renewable Energy through the methods listed above and by email to
For detailed instructions on submitting comments and additional information on the rulemaking process, see section VII of this document (Public Participation).
The link to the docket Web page is the following:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email:
Mr. John Cymbalsky, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-2B, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1692. Email:
Mr. Ari Altman, U.S. Department of Energy, Office of the General Counsel, GC-71, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-6307. Email:
Title III, Part C
Pursuant to EPCA, any new or amended energy conservation standard that DOE prescribes for the covered
In accordance with these and other statutory criteria discussed in this proposed rule, DOE proposes amended conservation standards for automatic commercial ice makers,
Table I.3 presents DOE's evaluation of the economic impacts of the proposed standards on customers of automatic commercial ice makers, as measured by the average life-cycle cost (LCC) savings
The industry net present value (INPV) is the sum of the discounted cash flows to the industry from the present year (2013) through the end of the analysis period (2047). Using a real discount rate of 9.2 percent, DOE estimates that the INPV for manufacturers of automatic commercial ice makers is $101.8 million in 2012$. Under the proposed standards, DOE expects that manufacturers may lose up to 23.5 percent of their INPV, or approximately $23.9 million. Based on DOE's interviews with the manufacturers of automatic commercial ice makers, DOE does not expect any plant closings or significant loss of employment.
DOE's analyses indicate that the proposed standards for automatic commercial ice makers would save a significant amount of energy. The lifetime savings for equipment purchased in the 30-year period that begins in the year of compliance with amended and new standards (2018-2047)
The cumulative national net present value (NPV) of total customer savings of the proposed standards for automatic commercial ice makers in 2012$ ranges from $0.791 billion (at a 7-percent
In addition, the proposed standards are expected to have significant environmental benefits. The energy savings would result in cumulative emission reductions of 14.6 million metric tons (MMt)
The value of the CO
Table I.4 summarizes the national economic costs and benefits expected to result from today's proposed standards for automatic commercial ice makers.
The benefits and costs of today's proposed standards, for automatic commercial ice makers sold in 2018-2047, can also be expressed in terms of annualized values. The annualized monetary values are the sum of (1) the annualized national economic value of the benefits from the operation of equipment that meets the proposed standards (consisting primarily of operating cost savings from using less energy and water, minus increases in equipment installed cost, which is another way of representing customer NPV); and (2) the annualized monetary value of the benefits of emission reductions, including CO
Although combining the values of operating savings and CO
Estimates of annualized benefits and costs of the proposed standards are shown in Table I.5. (All monetary values below are expressed in 2012$.) Table I.5 shows the primary, low net benefits, and high net benefits scenarios. The primary estimate is the estimate in which the operating cost savings were calculated using the
DOE also calculated the low net benefits and high net benefits estimates by calculating the operating cost savings and shipments at the
DOE has tentatively concluded that the proposed standards represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in significant conservation of energy (42 U.S.C. 6295(o)(2)(B) and 6313(d)(4)) DOE further notes that technologies used to achieve these standard levels are already commercially available for the equipment classes covered by this notice. Based on the analyses described above, DOE has tentatively concluded that the benefits of the proposed standards to the Nation (energy savings, positive NPV of customer benefits, customer LCC savings, and emission reductions) would outweigh the burdens (loss of INPV for manufacturers and LCC increases for some customers).
DOE also considered more-stringent energy use levels as trial standard levels (TSLs), and is still considering them in this rulemaking. However, DOE has tentatively concluded that the potential burdens of the more-stringent energy use levels would outweigh the projected benefits. Based on consideration of the public comments DOE receives in response to this proposed rule and related information collected and analyzed during the course of this rulemaking effort, DOE may adopt energy use levels presented in this notice that are either higher or lower than the proposed standards, or some combination of level(s) that incorporate the proposed standards in part.
The following section briefly discusses the statutory authority underlying this proposal, as well as some of the relevant historical background related to the establishment of standards for automatic commercial ice makers.
Title III, Part C of EPCA,
EPCA prescribed energy conservation standards for automatic commercial ice makers that produce cube type ice with capacities between 50 and 2,500 lb ice/24 hours. (42 U.S.C. 6313(d)(1)) EPCA requires DOE to review these standards and determine, by January 1, 2015, whether amending the applicable standards is technically feasible and economically justified. (42 U.S.C. 6313(d)(3)(A)) If amended standards are technically feasible and economically justified, DOE must issue a final rule by the same date. (42 U.S.C. 6313(d)(3)(B)) Additionally, EPCA granted DOE the authority to conduct rulemakings to establish new standards for automatic commercial ice makers not covered by 42 U.S.C. 6313(d)(1)), and DOE is using that authority in this rulemaking. (42 U.S.C. 6313(d)(2)(A))
Pursuant to EPCA, DOE's energy conservation program for covered equipment generally consists of four parts: (1) Testing; (2) labeling; (3) the establishment of Federal energy conservation standards; and (4) certification and enforcement procedures. Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each type or class of covered equipment. (42 U.S.C. 6314) Manufacturers of covered equipment must use the prescribed DOE test procedure as the basis for certifying to DOE that their equipment complies with the applicable energy conservation standards adopted under EPCA. Similarly, DOE must use these test procedures to determine whether that equipment complies with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)) Manufacturers, when making representations to the public regarding the energy use or efficiency of that equipment, must use the prescribed DOE test procedure as the basis for such representations. (42 U.S.C. 6314(d)) The DOE test procedures for automatic commercial ice makers currently appear at title 10 of the Code of Federal Regulations (CFR) part 431, subpart H.
DOE must follow specific statutory criteria for prescribing amended standards for covered equipment. As indicated above, any amended standard for covered equipment must be designed to achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and 6313(d)(4)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3) and 6313(d)(4)) DOE also may not prescribe a standard: (1) For certain industrial equipment, including automatic commercial ice makers, if no test procedure has been established for the product; or (2) if DOE determines by rule that the proposed standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B) and 6313(d)(4)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i) and 6313(d)(4)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven factors:
1. The economic impact of the standard on manufacturers and consumers of the equipment subject to the standard;
2. The savings in operating costs throughout the estimated average life of the covered equipment in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered equipment that are likely to result from the imposition of the standard;
3. The total projected amount of energy, or as applicable, water, savings likely to result directly from the imposition of the standard;
4. Any lessening of the utility or the performance of the covered equipment likely to result from the imposition of the standard;
5. The impact of any lessening of competition, as determined in writing by the U.S. Attorney General (Attorney General), that is likely to result from the imposition of the standard;
6. The need for national energy and water conservation; and
7. Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII) and 6313(d)(4))
EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of covered equipment. (42 U.S.C. 6295(o)(1) and 6313(d)(4)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States of any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4) and 6313(d)(4))
Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified
Additionally, 42 U.S.C. 6295(q)(1) specifies requirements when promulgating a standard for a type or class of covered equipment. DOE must specify a different standard level than that which applies generally to such type or class of equipment for any group of covered products that has the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered equipment within such type (or class); or (B) have a capacity or other performance-related feature that other equipment within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of equipment, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Federal energy conservation requirements generally supersede State laws or regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c) and 6316(f)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d) and 6316(f).
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3821 (Jan. 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. 58 FR 51735 (Oct. 4, 1993). To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. 76 FR 3821 (Jan. 21, 2011).
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (OIRA) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. 76 FR 3821 (Jan. 21, 2011). For the reasons stated in the preamble, DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
Consistent with Executive Order 13563, and the range of impacts analyzed in this rulemaking, the standards proposed herein by DOE achieves maximum net benefits.
In a final rule published on October 18, 2005, DOE adopted the energy conservation standards and water conservation standards prescribed by EPCA in 42 U.S.C. 6313(d)(1) for certain automatic commercial ice makers manufactured on or after January 1, 2010. 70 FR at 60407, 60415-16. These standards consist of maximum energy use and maximum condenser water use to produce 100 pounds of ice for automatic commercial ice makers with harvest rates between 50 and 2,500 lb ice/24 hours. These standards appear at 10 CFR part 431, subpart H, Automatic Commercial Ice Makers. Table II.1 presents DOE's current energy conservation standards for automatic commercial ice makers.
As stated above, EPCA prescribes energy conservation standards and water conservation standards for certain cube type automatic commercial ice makers with harvest rates between 50 and 2,500 lb ice/24 hours: Self-contained ice makers and ice-making heads (IMHs) using air or water for cooling and ice makers with remote condensing with or without a remote compressor. Compliance with these standards was required as of January 1, 2010. (42 U.S.C. 6313(d)(1)) DOE adopted these standards and placed them under 10 CFR part 431, subpart H, Automatic Commercial Ice Makers.
In addition, EPCA requires DOE to conduct a rulemaking to determine whether to amend the standards established under 42 U.S.C. 6313(d)(1), and if DOE determines that amendment is warranted, DOE must also issue a final rule establishing such amended standards by January 1, 2015. (42 U.S.C. 6313(d)(3)(A))
Furthermore, EPCA granted DOE authority to set standards for additional types of automatic commercial ice makers that are not covered in 42 U.S.C. 6313(d)(1). (42 U.S.C. 6313(d)(2)(A)) While not enumerated in EPCA, additional types of automatic commercial ice makers DOE identified as candidates for standards to be established in this rulemaking include flake and nugget, as well as batch type ice makers that are not included in the EPCA definition of cube type ice makers.
To satisfy its requirement to conduct a rulemaking, DOE initiated the current rulemaking on November 4, 2010 by publishing on its Web site its “Rulemaking Framework for Automatic Commercial Ice Makers.” (The Framework document is available at:
DOE also published a notice in the
DOE held the Framework public meeting on December 16, 2010, at which it: (1) Presented the contents of the Framework document; (2) described the analyses it planned to conduct during the rulemaking; (3) sought comments from interested parties on these subjects; and (4) in general, sought to inform interested parties about, and facilitate their involvement in, the rulemaking. Major issues discussed at the public meeting included: (1) The scope of coverage for the rulemaking; (2) equipment classes; (3) analytical approaches and methods used in the rulemaking; (4) impacts of standards and burden on manufacturers; (5) technology options; (6) distribution channels, shipments, and end users; (7) impacts of outside regulations; and (8) environmental issues. At the meeting and during the comment period on the Framework document, DOE received many comments that helped it identify and resolve issues pertaining to automatic commercial ice makers relevant to this rulemaking. These comments are discussed in subsequent sections of this notice.
DOE then gathered additional information and performed preliminary analyses to help review standards for this equipment. This process culminated in DOE publishing a notice of another public meeting (the January 2012 notice) to discuss and receive comments regarding the tools and methods DOE used in performing its preliminary analysis, as well as the analyses results. 77 FR 3404 (Jan. 24, 2012). DOE also invited written comments on these subjects and announced the availability on its Web site of a preliminary analysis technical support document (preliminary analysis TSD).
The preliminary analysis TSD provided an overview of DOE's review of the standards for automatic commercial ice makers, discussed the comments DOE received in response to the Framework document, and addressed issues including the scope of coverage of the rulemaking. The document also described the analytical framework that DOE used (and continues to use) in considering amended standards for automatic commercial ice makers, including a description of the methodology, the analytical tools, and the relationships between the various analyses that are part of this rulemaking. Additionally, the preliminary analysis TSD presented in detail each analysis that DOE had performed for this equipment up to that point, including descriptions of inputs, sources, methodologies, and results. These analyses were as follows:
• A
• A
• An
• An
• A
• A
• A
• A
• A
• A
The public meeting announced in the January 2012 notice took place on February 16, 2012 (February 2012 preliminary analysis public meeting). At the February 2012 preliminary analysis public meeting, DOE presented the methodologies and results of the analyses set forth in the preliminary analysis TSD. Interested parties provided comments on the following issues: (1) Equipment classes; (2) technology options; (3) energy modeling and validation of engineering models; (4) cost modeling; (5) market information, including distribution channels and distribution markups; (6) efficiency levels; (7) life-cycle costs to customers, including installation, repair and maintenance costs, and water and wastewater prices; and (8) historical shipments. The comments received since publication of the January 2012 notice, including those received at the February 2012 preliminary analysis public meeting, have contributed to DOE's proposed resolution of the issues in this rulemaking as they pertain to automatic commercial ice makers. This NOPR responds to the issues raised by the comments. (A parenthetical reference at the end of a quotation or paraphrase provides the location of the item in the public record.)
In this notice, equipment class names are frequently abbreviated. The abbreviations are shown on Table III.1.
On December 8, 2006, DOE published a final rule in which it adopted Air-Conditioning and Refrigeration Institute (ARI) Standard 810-2003, “Performance Rating of Automatic Commercial Ice Makers,” with a revised method for calculating energy use, as the DOE test procedure for this equipment. The DOE rule included a clarification to the energy use rate equation to specify that the energy use be calculated using the entire mass of ice produced during the testing period, normalized to 100 lb of ice produced. 71 FR 71340, 71350 (Dec. 8, 2006). ARI Standard 810-2003 requires performance tests to be conducted according to the American National Standards Institute (ANSI)/American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 29-1988 (reaffirmed 2005), “Method of Testing
On January 11, 2012, DOE published a test procedure final rule (2012 test procedure final rule) in which it adopted several amendments to the DOE test procedure. This included an amendment to incorporate by reference Air-Conditioning, Heating, and Refrigeration Institute (AHRI) Standard 810-2007, which amends ARI Standard 810-2003 to expand the capacity range of covered equipment, provide definitions and specific test procedures for batch and continuous type ice makers, and provide a definition for ice hardness factor, as the DOE test procedure for this equipment. 77 FR 1591 (Jan. 11, 2012). In March 2011, AHRI published Addendum 1 to Standard 810-2007, which revised the definition of “potable water use rate” and added new definitions for “purge or dump water” and “harvest water.” DOE's 2012 test procedure final rule incorporated this addendum to the AHRI Standard. The 2012 test procedure final rule also included an amendment to incorporate by reference the updated ANSI/ASHRAE Standard 29-2009.
In addition, the 2012 test procedure final rule included several amendments designed to address issues that were not accounted for by the previous DOE test procedure. 77 FR at 1593 (Jan. 11, 2012). First, DOE expanded the scope of the test procedure to include equipment with capacities from 50 to 4,000 lb ice/24 hours.
The test procedure amendments established in the 2012 test procedure final rule are required to be used in conjunction with any new standards promulgated as a result of this standards rulemaking. Use of the amended test procedure to demonstrate compliance with DOE energy conservation standards or for representations with respect to energy consumption of automatic commercial ice makers is required on the compliance date of any energy conservation standards established as part of this rulemaking, and on January 7, 2013 for the energy conservation standards set in the Energy Policy Act of 2005 (EPACT 2005). 77 FR at 1593 (Jan. 11, 2012).
In each standards rulemaking, DOE conducts a screening analysis, which it bases on information that it has gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such analysis, DOE develops a list of design options for consideration, in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of these options for improving efficiency are technologically feasible. DOE considers a design option to be technologically feasible if it is used by the relevant industry or if a working prototype has been developed. Technologies incorporated in commercially available equipment or in working prototypes will be considered technologically feasible. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(i) Although DOE considers technologies that are proprietary, it will not consider efficiency levels that can only be reached through the use of proprietary technologies (
Once DOE has determined that particular design options are technologically feasible, it further evaluates each of these design options in light of the following additional screening criteria: (1) Practicability to manufacture, install, or service; (2) adverse impacts on product utility or availability; and (3) adverse impacts on health or safety. 10 CFR part 430, subpart C, appendix A, section 4(a)(4)(ii)-(iv) Chapter 4 of the NOPR TSD discusses the results of the screening analyses for automatic commercial ice makers. Specifically, it presents the designs DOE considered, those it screened out, and those that are the bases for the TSLs in this rulemaking.
When DOE proposes to adopt (or not adopt) an amended or new energy conservation standard for a type or class of covered equipment such as automatic commercial ice makers, it determines the maximum improvement in energy efficiency that is technologically feasible for such equipment. (
As indicated previously, whether efficiency levels exist or can be achieved in commonly used equipment is not relevant to whether they are max-tech levels. DOE considers technologies to be technologically feasible if they are incorporated in any currently available equipment or working prototypes. Hence, a max-tech level results from the combination of design options predicted to result in the highest efficiency level possible for an equipment class, with such design options consisting of technologies already incorporated in commercial equipment or working prototypes. DOE notes that it reevaluated the efficiency levels, including the max-tech levels, when it updated its results for this NOPR. Table III.2 and Table III.3 show the max-tech levels determined in the engineering analysis for batch and continuous type automatic commercial ice makers, respectively.
For each TSL, DOE projected energy savings from automatic commercial ice makers purchased in the 30-year period that begins in the year of compliance with amended and new standards (2018-2047). The savings are measured over the entire lifetime of equipment purchased in the 30-year period. DOE quantified the energy savings attributable to each TSL as the difference in energy consumption between each standards case and the base case. The base case represents a projection of energy consumption in the absence of amended mandatory efficiency standards, and considers market forces and policies that affect demand for more-efficient equipment.
DOE used its NIA spreadsheet model to estimate energy savings from amended standards for the equipment that are the subject of this rulemaking. The NIA spreadsheet model (described in section IV.H of this notice) calculates energy savings in site energy, which is the energy directly consumed by equipment at the locations where they are used.
Because automatic commercial ice makers use water, water savings were quantified in the same way as energy savings.
For electricity, DOE reports national energy savings in terms of the savings in energy that is used to generate and transmit the site electricity. To convert this quantity, DOE derives annual conversion factors from the model used to prepare the Energy Information Administration's (EIA's)
DOE has also begun to estimate full-fuel-cycle (FFC) energy savings. 76 FR 51282 (Aug. 18, 2011). The FFC metric includes the energy consumed in extracting, processing, and transporting primary fuels, and thus presents a more complete picture of the impacts of efficiency standards. DOE's approach is based on calculation of an FFC multiplier for each of the fuels used by covered equipment.
As noted above, 42 U.S.C. 6295(o)(3)(B) prevents DOE from adopting a standard for a covered product unless such standard would result in “significant” energy savings. Although the term “significant” is not defined in the Act, the U.S. Court of Appeals, in
EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i) and 6313(d)(4)) The following sections generally discuss how DOE is addressing each of those seven factors in this rulemaking. For further details and the results of DOE's
In determining the impacts of an amended standard on manufacturers, DOE first uses an annual cash flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include INPV, which values the industry on the basis of expected future cash flows; cash flows by year; changes in revenue and income; and other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturer employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For a detailed description of the methodology used to assess the economic impact on manufacturers, see section IV.J of this rulemaking. For results, see section V.B.2 of this rulemaking. Additionally, chapter 12 of the NOPR TSD contains a detailed description of the methodology and discussion of the results.
For individual customers,
The LCC is the sum of the purchase price of equipment (including its installation) and the operating costs (including energy, water, maintenance, and repair expenditures) discounted over the lifetime of the equipment. The LCC savings for the considered efficiency levels are calculated relative to a base case that reflects projected market trends in the absence of new or amended standards. The LCC analysis requires a variety of inputs, such as product prices, product energy and water consumption, energy and water prices, maintenance and repair costs, product lifetime, and consumer discount rates. For its analysis, DOE assumes that consumers will purchase the considered equipment in the first year of compliance with amended standards.
To account for uncertainty and variability in specific inputs, such as equipment lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value. DOE identifies the percentage of customers estimated to receive LCC savings, or experience an LCC increase, in addition to the average LCC savings associated with a particular standard level. DOE also evaluates the LCC impacts of potential standards on identifiable subgroups of customers that may be affected disproportionately by a national standard. For the results of DOE's analyses related to the LCC, see section V.B.1 of this rulemaking and chapter 8 of the NOPR TSD; for LCC impacts on identifiable subgroups, see section V.B.1 of this notice and chapter 11 of the NOPR TSD.
Although significant conservation of energy is a separate statutory requirement for imposing an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III) and 6313(d)(4)) As discussed in section VI.B.3, DOE uses the NIA spreadsheet to project energy savings.
In establishing classes of equipment, and in evaluating design options and the impact of potential standard levels, DOE evaluates standards that would not lessen the utility or performance of the equipment under consideration. (42 U.S.C. 6295(o)(2)(B)(i)(IV) and 6313(d)(4)) The standards proposed in today's rulemaking will not reduce the utility or performance of the equipment considered in the rulemaking. For DOE's analyses related to the potential impact of amended standards on equipment utility and performance, see section V.B.4 of this rulemaking and chapter 4 of the NOPR TSD.
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the imposition of a standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It directs the Attorney General to make such determination, if any, of any lessening of competition likely to result from a proposed standard, and to transmit such determination to the Secretary, within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will transmit a copy of today's proposed rule to the Attorney General with a request that the Department of Justice (DOJ) provide its determination on this issue. DOE will address the Attorney General's determination in the final rule.
The energy savings from the proposed standards are likely to provide improvements to the security and reliability of the nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the nation's needed power generation capacity. (42 U.S.C. 6295(o)(2)(B)(i)(VI) and 6316(e)(1))
The proposed standards also are likely to result in environmental benefits in the form of reduced emissions of air pollutants and greenhouse gases (GHGs) associated with energy production. DOE reports the emissions impacts from today's standards, and from each TSL it considered, in sections IV.K, IV.L and V.B.6 of this rulemaking. DOE also
EPCA allows the Secretary of Energy, in determining whether a new or amended standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII) and 6316(e)(1)) In developing this proposed rule, DOE has also considered the comments submitted by interested parties. For the results of DOE's analyses related to other factors, see section V.B.7 of this rulemaking.
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii) and 6313(d)(4), EPCA provides for a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the customer of equipment that meets the new or amended standard level is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analysis generates values used to calculate the effects that proposed energy conservation standards would have on the PBP for customers. These analyses include, but are not limited to, the 3-year PBP contemplated under the rebuttable presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to the customer, manufacturer, the Nation, and environment, as required under 42 U.S.C. 6295(o)(2)(B)(i) and 6313(d)(4). The results of these analyses serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.G.12 of this rulemaking and chapter 8 of the NOPR TSD.
During the February 2012 preliminary analysis public meeting and in subsequent written comments, stakeholders provided input regarding general issues pertinent to the rulemaking, such as issues of scope of coverage and DOE's authority in setting standards. These issues are discussed in this section.
In the preliminary analysis, DOE stated its position that EPCA prevents the setting of both energy performance standards and prescriptive design requirements (see chapter 2 of the preliminary analysis TSD). DOE also stated its intent to amend the energy performance standards for automatic commercial ice makers, and not to set prescriptive design requirements at this time (see chapter 2 of the preliminary analysis TSD).
As discussed in section III.A, DOE published a test procedure final rule in January 2012 (2012 test procedure final rule). 77 FR 1591 (Jan. 11, 2012). All automatic commercial ice makers covered by DOE energy conservation standards promulgated as a result of this energy conservation standards rulemaking will be required to use the 2012 test procedures to demonstrate compliance beginning on the compliance date set at the conclusion of this rulemaking. 77 FR at 1593 (Jan. 11, 2012). The standards can be found at title 10 CFR part 431, subpart H (or, alternatively, 10 CFR 431.134).
Since the publication of the 2012 test procedure final rule, DOE has received several inquiries from interested parties regarding proper conduct of the DOE test procedure. Specifically, interested parties inquired regarding the appropriate use of baffles and automatic purge water controls during the DOE test procedure. On January 28, 2013, DOE published draft guidance documents to address the issues regarding baffles
DOE's test procedures are set in separate rulemaking processes. However, as part of the automatic commercial ice maker energy conservation standards rulemaking, DOE did receive two comments related to the test procedures. Howe noted that measuring potable water use is important because de-scaling is crucial for maintaining the efficiency and utility of automatic commercial ice makers. Howe also recommended that DOE obtain information from additional manufacturers on the relationship between potable water use and automatic commercial ice maker performance. (Howe, No. 51 at p. 2)
The People's Republic of China (China) noted that there are differences among test processes for refrigeration products issued by different bodies in the U.S. China stated that different test procedures may lead to different results for one product, and it will affect the judgment of compliance. Therefore, China suggested that the U.S. government unify the test procedure. (China, No. 55 at p. 3)
As noted earlier, the 2012 test procedure final rule was published on January 11, 2012, and the energy conservation standards will be based on this test procedure. 77 FR at 1593. With regard to Howe's comment, in the final rule, DOE elected to not require measurement of potable water. Since DOE is not setting potable water limits for automatic commercial ice makers, requiring manufacturers to measure potable water use would be an unnecessary expense. With regard to China's comment, DOE has no authority regarding adjustment of the test procedures of other organizations. Also, if there is any uncertainty regarding how to conduct the test, manufacturers and others may request clarification from DOE. By updating the test procedure to reflect current AHRI and ANSI/ASHRAE standards, DOE expects any differences of the type noted by China will be minimized.
At the February 2012 preliminary analysis public meeting and in written
Scotsman asked whether the upcoming rulemaking would cover products that both make and dispense ice. (Scotsman, Public Meeting Transcript, No. 42 at p. 26)
In response to the comments about the need for starting this rulemaking, DOE notes that under EPACT 2005, DOE must review the existing standards and, if justified, develop amended standards by January 1, 2015. Thus, DOE commenced the rulemaking to ensure compliance with the statutory deadline. During the rulemaking, DOE considered alternatives to this rulemaking in the regulatory impact analysis; this analysis is described in Section IV.O of today's NOPR. As for covering products that make and dispense ice, the scope of the rulemaking is ice-making products. While the 42 U.S.C. 6311(19) definition of automatic commercial ice maker stated an ice maker may or may not include a means for dispensing or storing ice, not all ice makers do include such ancillary equipment. As discussed in the preliminary analysis TSD, section 2.2.4.2, DOE determined that promulgating standards to regulate the energy usage of dispensers and storage bins may have an unintended impact on customer choices when choosing between models that include or do not include such ancillary equipment. By regulating energy usage of ancillary equipment, DOE could disincentivize the manufacturing of such equipment. If, and to the extent that, ice dispensing equipment use electricity, such electricity usage is not covered by this rulemaking.
When beginning an energy conservation standards rulemaking, DOE develops information that provides an overall picture of the market for the equipment concerned, including the purpose of the equipment, the industry structure, and market characteristics. This activity includes both quantitative and qualitative assessments based primarily on publicly available information (
In evaluating and establishing energy conservation standards, DOE generally divides covered equipment into classes by the type of energy used, or by capacity or another performance-related feature that justifies a different standard for equipment having such a feature. (42 U.S.C. 6295(q) and 6313(d)(4)) In deciding whether a feature justifies a different standard, DOE must consider factors such as the utility of the feature to users.
Automatic commercial ice makers are divided into equipment classes based on physical characteristics that affect commercial application, equipment utility, and equipment efficiency. These equipment classes are based on the following criteria:
Table IV.1 shows the 25 automatic commercial ice maker equipment classes that DOE is including in the scope of this rulemaking. The capacity ranges for the continuous units have changed from the preliminary analysis.
Batch type and continuous type ice makers are distinguished by the mechanics of their respective ice-making processes. Continuous type ice makers are so named because they simultaneously produce and harvest ice in one continuous, steady-state process. The ice produced in continuous processes is called “flake” or “nugget” ice, which is often a “soft” ice with high liquid water content, in the range from 10 to 35 percent, but can also be subcooled,
Current energy conservation standards cover batch type ice makers that produce “cube” ice, which is defined as ice that is fairly uniform, hard, solid, usually clear, and generally weighs less than two ounces (60 grams) per piece, as distinguished from flake, crushed, or fragmented ice. 10 CFR 431.132 Batch ice makers alternate between freezing and harvesting periods and therefore produce ice in discrete batches rather than in a continuous process. After the freeze period, hot gas is typically redirected from the compressor discharge to the evaporator, melting the surface of the ice cubes that is in contact with the evaporator surface, enabling them to be removed from the evaporator. The evaporator is then purged with potable water, which removes impurities that would decrease ice clarity. Consequently, batch type ice makers typically have higher potable water usage than continuous type ice makers.
After the publication of the Framework document, several parties commented that machines producing “tube” ice, which is created in a batch process identical to that which produces cube ice, should also be regulated. DOE notes that tube ice machines of the covered capacity range that produce ice fitting the definition for cube type ice are covered by the current standards, whether or not they are referred to as cube type ice makers within the industry. Nonetheless, DOE has addressed the commenters' suggestions by emphasizing that all batch type ice machines are within the scope of this rulemaking, as long as they fall within the covered capacity range of 50 to 4,000 lb ice/24 hours. This includes tube ice makers and other batch type ice machines (if any) that produce ice that does not fit the definition of cube type ice. To help clarify this issue, DOE now refers to all batch automatic commercial ice makers as “batch type ice makers,” regardless of the shape of the ice pieces that they produce. 77 FR 1591 (Jan. 11, 2012).
During the February 2012 preliminary analysis public meeting and in subsequent written comments, a number of stakeholders addressed issues related to proposed equipment classes and the inclusion of certain types of equipment in the analysis. These topics are discussed in this section.
Currently, DOE does not consider physical size as a criterion for setting equipment classes.
Several stakeholders commented on the size standardization of ice makers. Scotsman commented that most ice makers are built in standard widths of 22, 30, and 48 inches and standard depths between 24 and 28 inches, although heights may vary slightly depending on the machine. (Scotsman, Public Meeting Transcript, No. 42 at p. 61) Manitowoc noted that the reason for this standardization is that most ice storage bins have standard sizes based on ice-making capacity, and the footprint of the ice maker on top needs to be the same as the footprint of the storage bin in order for them to fit together. Hence, according to Manitowoc, the industry has developed common sizes that have facilitated ice maker installations and replacements. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 91-92) Howe countered that, contrary to the assertions of other stakeholders, there are no “standard” ice maker dimensions. (Howe, No. 51 at pp. 1-2)
Earthjustice commented that it may be helpful to use cabinet size as an additional criterion for defining equipment classes because the existing standard sizes of ice makers affect their efficiency and their utility to the consumer, both of which are factors that DOE typically considers in identifying equipment classes. (Earthjustice, Public Meeting Transcript, No. 42 at pp. 90-91)
However, Manitowoc commented that it manufactures ice makers in different cabinet sizes that deliver the same ice-making capacity, explaining that this facilitates flexible installation decisions but could complicate efforts to define equipment classes by cabinet size. (Manitowoc, Public Meeting Transcript, No. 42 at p. 91)
The Appliance Standards Awareness Project (ASAP) commented that it would be helpful to see a size analysis that would elucidate the effects of size on utility to the customer and potential energy savings. (ASAP, Public Meeting Transcript, No. 42 at pp. 73-74)
As noted by Manitowoc and Scotsman, there are standard sizes for
DOE notes that a reason to consider separate equipment classes based on physical dimensions is to address differences in energy efficiency. An important size-related factor that can affect the efficiency of an ice maker is the size of its heat exchangers (
To address size limitations and to save energy, DOE could consider Earthjustice's recommendation to use size as a criterion in setting equipment classes. To do so, DOE could establish parallel sets of equipment classes—size-constrained classes (in which physical size would be limited to a prescribed maximum) and non-size-constrained classes (for which there would be no size restrictions). In the size-constrained classes, DOE's ability to set stricter energy usage limits would be limited by the constraint that the physical size of the unit cannot be increased. In the non-size-constrained classes, additional energy savings could be achieved by setting standards that increase the physical size of the unit as well as making the units more efficient. Accounting for size constraints is important in the automatic commercial ice maker industry because replacement sales comprise a majority of sales and equipment must be able to fit into the same space as the unit it replaces, and fit on existing ice storage bins, as described above. For opportunities in which physical size is not critical, non-size-constrained equipment classes could save energy relative to the size-constrained units. If DOE decided not to establish separate equipment classes for space-constrained equipment, it may not be reasonable for DOE to consider design options that significantly increase physical size of the equipment, which would limit potential efficiency gains and/or make them more costly, thus likely resulting in less stringent standards for size-limited equipment classes.
Previous DOE rulemakings provide ample precedent for creating space-constrained equipment classes. For instance, DOE developed space-constrained equipment classes for packaged terminal air conditioners and through-the-wall air conditioners, both of which represent industries in which replacement comprises a majority of sales. 10 CFR 430.32
To determine whether space constraint is an issue (
Table IV.2 displays sample results of this size analysis, presenting information for two different large, air-cooled IMH batch type ice makers at each of several selected harvest capacities. In many cases, the larger equipment is more efficient. For example, among the ice makers that can produce 1,500 lb ice/24 hours, the 28 ft
Manitowoc noted during the February 2012 preliminary analysis public meeting that it produces units with the same harvest rate in different size chassis sizes, and that these units have very similar features. (Manitowoc, Public Meeting Transcript, No. 42 at p. 91) DOE, in its analysis, has noted that some manufacturers have achieved higher efficiencies for ice makers in smaller sizes (at constant harvest rates). Based on this information, DOE believes that size does affect efficiency levels (as it allows for large heat exchangers), but it is not the definitive factor in determining efficiency for ice makers.
Therefore, DOE has determined that separate equipment classes for size-constrained units are not warranted. DOE notes that there is not a strong correlation between product size and product efficiency that supports separate equipment classes. Furthermore, DOE believes that adding additional classes for size-constrained units complicates the equipment class structure and analysis but does not improve the rulemaking or standards.
In the November 2010 Framework document for this rulemaking, DOE requested comments on whether coverage should be expanded from the current covered capacity range of 50 to 2,500 lb ice/24 hours to include ice makers producing up to 10,000 lb ice/24 hours. All commenters agreed with expanding the harvest capacity coverage, and all but one of the commenters supported or accepted an upper harvest capacity cap of 4,000 lb ice/24 hours, which would be consistent with the current test procedure, AHRI Standard 810-2007. Most commenters categorized ice makers with harvest
In written comments after the publication of the preliminary analysis, AHRI and Manitowoc both recommended that DOE refrain from regulating products with capacities above 2,500 lb ice/24 hours if there are not enough high-capacity batch machines available for DOE to analyze. (AHRI, No. 49 at pp. 3-4; Manitowoc, No. 54 at p. 3)
DOE acknowledges that there are currently few automatic commercial ice makers with harvest capacities above 2,500 lb ice/24 hours. However, DOE already has a precedent of setting standards for harvest capacity ranges in which there are no products available. There are currently no IMH air-cooled ice makers on the market with harvest capacities above 1,650 lb ice/24 hours, yet EPACT 2005 amended EPCA to set standards for this equipment class of ice makers with harvest capacities up to 2,500 lb ice/24 hours. Because it is possible that batch-type ice makers with harvest capacities from 2,500 to 4,000 lb ice/24 hours will be manufactured in the future, DOE does not find it unreasonable to set standards in this rulemaking for batch type ice makers with harvest capacities in the range up to 4,000 lb ice/24 hours. Therefore, DOE maintains its position to include large-capacity batch type ice makers in the scope of this rulemaking. However, DOE requests comment and data on the viability of the proposed standard levels selected for batch-type ice makers with harvest capacities from 2,500 to 4,000 lb ice/24 hours. The proposed standard levels are discussed in Section V.A.2 of today's NOPR.
In the current energy conservation standards, DOE uses discrete harvest capacity breakpoints to differentiate cube machine classes, and DOE proposes to do the same with new classes for continuous machines.
In reviewing industry literature, DOE found that compressor efficiency increases over a range of harvest rate capacities and then tends to flatten out at the higher capacities. This trend is illustrated in Table IV.3, which displays the capacities and energy efficiency ratios (EERs) of one family of reciprocating compressors. As shown in this table, the EERs of compressors in this family level off to between 6.5 and 7.2 British thermal units per watt-hour (Btu/Wh) at capacities beyond 14,300 Btu per hour.
Due primarily to the compressor trends discussed above, ice maker energy usage also varies as products increase in cooling capacity. Ice maker energy use (in kilowatt-hours per 100 lb of ice) decreases as the harvest rate increases in all products, but because the compressor trends do not continue indefinitely, the ice maker energy usage becomes constant at larger harvest rates. The point at which usage becomes constant for ice makers varies by equipment type.
DOE has traditionally used a piecewise linear approach
Several stakeholders commented on DOE's decision to set piecewise efficiency levels according to harvest capacity. At the February 2012 preliminary analysis public meeting, the Northwest Power and Conservation Council (NPCC) questioned whether setting standards by capacity range would create discontinuous breakpoints in efficiency requirements that would drive manufacturers to seek one level of capacity over another to take advantage of a more favorable standard. (NPCC, Public Meeting Transcript, No. 42 at p. 22) In written comments, the Northwest Energy Efficiency Alliance (NEEA), NPCC, and the California Investor-Owned Utilities (CA IOUs) recommended that DOE imitate ENERGY STAR® and use a single equation for each equipment class to define energy consumption standards as a function of harvest rate, rather than having multiple efficiency standards for different harvest capacity bins. (NEEA/NPCC, No. 50 at p. 2; CA IOUs, No. 56 at p. 2) CA IOUs added that, if DOE elects to continue distinguishing equipment classes based on harvest capacity breakpoints, it should explain
The newly finalized ENERGY STAR specification eliminates discontinuities by using one equation for IMH and self-contained cube equipment as well as all three continuous equipment types, while achieving something similar to the asymptotic relationship mentioned by Manitowoc. The ENERGY STAR specification accomplishes this with equations that are more complex than those currently embodied in DOE's cube ice machine standards, which have simple “intercept and slope” or “fixed and variable” components. For example, DOE's current energy consumption limit for small IMH air-cooled equipment is as follows:
The April 30, 2012 ENERGY STAR specification for the same equipment is:
By means of a more complicated formula, the ENERGY STAR specification creates a continuous curve while still respecting the asymptotic relationship between efficiency and harvest capacity.
Manitowoc commented that it was not particularly important where the DOE places capacity breakpoints for different equipment classes as long as the breakpoints respect the asymptotic relationships between size and efficiency. Manitowoc also asked that there not be any real discontinuities at these breakpoints or discrepancies from the industry mean efficiency/capacity relationships. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 25-26) CA IOUs similarly requested that DOE base its harvest capacity breakpoints on an investigation of the market, rather than automatically using pre-existing breakpoints, and added that any new equipment classes generated by resetting these breakpoints must not allow backsliding. (CA IOUs, No. 56 at p. 3)
The issue raised by NPCC and echoed by Manitowoc is that the equations used in the standards can cause points of discontinuity where rating equipment at slightly different capacity levels provides a benefit to the manufacturer in terms of allowable energy usage. In the current standards for IMH water-cooled units, one discontinuity exists at 500 lb ice/24 hours, the breakpoint between the small and medium harvest capacity rate equipment classes, where there is a 0.1 kWh/100 lb energy use gap, representing 2.0 percent of the 5.04 kWh/100 lb maximum allowable energy use at this harvest capacity rate. However, eliminating this type of gap in the energy conservation standards would not require departure from a piecewise linear representation of maximum allowable energy use.
Fitting a curve as was done to create the ENERGY STAR limits would be more complicated than creating a new standard that mirrors the existing usage limit structure. It would also be more difficult for customers, such as restaurant owners, who buy ice makers and need to make sense of the standards because the ENERGY STAR equation requires a calculator or a spreadsheet, and, DOE believes, leads to more questions and complexity.
The single equation approach also runs somewhat contrary to the comments received from manufacturers. With the single equation provided by ENERGY STAR, energy usage limits for large machines continue to decline to zero (albeit at diminishing rates). The manufacturer comments cited in the discussion of large machines above provided several reasons that, at very high capacities, design constraints cause these products to have constant energy usage across different harvest capacities. This means that, at a certain point, efficiency tends to become more constant as harvest capacity changes, as is embodied in the current standards. The single equation approach would make it more difficult for the DOE standards to reflect this trend in the market.
DOE has decided to continue structuring the equipment classes by utilizing multiple harvest rate sizes rather than moving to a single equation approach. By continuing to use multiple size classes, DOE will have greater flexibility to adequately address the efficiencies of large equipment classes. The risk of exploiting the system at size class break points can be mitigated by carefully developing standards. Moreover, DOE proposes amending the baseline energy standards to eliminate existing discontinuities at harvest capacity breakpoints. Note that under the DOE test procedure and specifically the updated ANSI/ASHRAE Standard 29-2009 that was incorporated by reference in that rule, harvest rates are to be determined at the time of test, and are not based on manufacturer specifications. (10 CFR 431.134) Furthermore, in EPACT 2005, Congress directed DOE to monitor whether manufacturers reduce harvest rates below tested values for the purpose of bringing non-complying equipment into compliance. (42 U.S.C. 6316(f)(4)(A)) DOE therefore intends to carefully assess whether such manipulation occurs as a result of any final rule using distinct break points.
AHRI Standard 810-2007, as referenced by the DOE test procedure, states that the energy consumption rate of ice makers should be rounded to the nearest 0.1 kWh. By considering the standard levels using this rounding convention, the only existing discontinuity in DOE's standards for batch type ice makers occurs at the breakpoint of 500 lb/24 hr between the IMH-W-Small-B and IMH-W-Medium-B equipment classes. In its analysis, DOE adjusted the baseline energy level for the IMH-W-Small-B equipment class to 7.79-0.0055H from 7.80-0.0055H. This 0.01 change eliminates the discontinuity at this breakpoint, as seen in Table IV.4. In setting up TSLs, DOE sought to ensure that no discontinuities existed between equipment classes.
The EPACT 2005 amendments to EPCA did not set standards for continuous type ice makers. At the February 2012 preliminary analysis public meeting, DOE presented NES results (see section IV.H.3 of this notice) that indicated the continuous equipment type accounted for approximately 0.03 quads of savings potential over the 30-year analysis period. The savings levels are low primarily because continuous type ice-making machines represent only 16 percent of automatic commercial ice maker shipments, of which only two equipment classes (IMH air-cooled small and self-contained air-cooled small equipment) represent three-quarters of shipments.
At the February 2012 preliminary analysis public meeting and in written comments, AHRI and Scotsman both questioned the need to regulate continuous type ice makers, noting that the preliminary results of DOE's national impact analysis show negligible NES (rounding to 0.000 quads) for most continuous type equipment classes. (AHRI, No. 49 at pp. 1-2; Scotsman, No. 46 at p. 5; Scotsman, Public Meeting Transcript, No. 42 at p. 105)
AHRI and Scotsman questioned the need to include continuous remote condensing units (RCUs) with remote compressors as equipment classes, noting that these are niche products that represent a very small portion of the overall market. AHRI added that their minimal projected energy savings and low shipment volume would not justify the cost of testing and certifying these products to DOE. (AHRI, No. 49 at p. 3; Scotsman, No. 46 at p. 2)
Pursuant to EPCA, DOE is required to set new or amended energy conservation standards for automatic commercial ice makers to: (1) Achieve the maximum improvement in energy efficiency that is technologically feasible and economically justified; and (2) result in significant conservation of energy. (42 U.S.C. 6295(o)(2)(A) and (o)(3)(B); 6313(d)(4)) The EPCA language does not require DOE to determine the significance of savings at the individual equipment class level in order to justify setting standards for all equipment classes of an equipment type
DOE has decided to regulate all automatic commercial ice maker equipment classes. This will bring two important automatic commercial ice maker classes (self-contained, air-cooled small continuous and IMH air-cooled small continuous) under regulation. Regulating all equipment classes will create a consistent approach for regulating continuous type equipment as was done for batch type equipment.
The current standard levels differentiate between remote condensers with compressors in the condenser cabinet and remote condensers without remote compressors. DOE requested comment on whether to retain these equipment classes as separate groups. (DOE, Public Meeting Presentation, No. 7 at p. 30)
Numerous stakeholders expressed their support for DOE's differentiation of RCUs into two separate classes based on the location of their compressors. Manitowoc raised the issue at the public meeting, noting that locating the compressor remotely has a measurable impact on the overall efficiency of an ice maker. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 24-25) Scotsman added that these two classes of RCUs perform at different efficiencies in the field and provide different utility to the customer, thus justifying their separation into separate equipment classes. (Scotsman, Public Meeting Transcript, No. 42 at p. 45 and No. 46 at p. 2) NPCC expressed agreement with Scotsman's comment on the issue. (NPCC, Public Meeting Transcript, No. 42 at p. 45)
Based on DOE's review of these comments and data arising from the analyses, DOE believes the location of the compressor provides different customer utility, and that each equipment class experiences different energy usage trends due to suction line losses. DOE did not receive any information indicating that these equipment classes should not be kept separate. Therefore, DOE will continue to categorize RCUs with and without remote compressors into separate equipment classes.
In the preliminary analysis, DOE found that some high-capacity RCU-RC-Large-C ice makers are solely designed to be used with compressor racks and the racks' associated condensers. A compressor rack is typically used with supermarket refrigeration equipment and consists of several compressors joined in a parallel arrangement to service several refrigeration products at once. One related issue is that the manufacturers of these automatic commercial ice makers do not provide for sale a condensing unit that could be paired with them as an alternative option. DOE noted that these units do not meet the statutory definition of ice makers, which states that an ice maker “consists of a condensing unit and ice-making section operating as an integrated unit, with means for making and harvesting ice.” (42 U.S.C. 6311(19)(A)) Hence, DOE determined during the preliminary analysis that rack-only RCUs are not defined as ice makers under the statute and thus should not be included in this rulemaking.
Howe recommended that DOE include remote to rack ice makers in the rulemaking because such units already represent a significant fraction of annual ice maker shipments and will become even more significant once the covered capacity range expands to 4,000 lb ice/24 hours. (Howe, No. 51 at p. 4) Conversely, Scotsman commented that continuous RCUs with remote compressors comprise a very tiny piece of the overall automatic commercial ice maker market and thus questioned the need to establish equipment classes for these products. Scotsman added that these RCUs are difficult to test
Earthjustice observed that DOE has not explained why it believes that ice makers designed for use with remote condenser rack systems do not consist of “a condensing unit and ice-making section operating as an integrated unit, with means for making and harvesting ice,” as automatic commercial ice makers are defined. Earthjustice argued that such ice makers use the same basic components, including both a condensing unit and an ice-making section. Moreover, Earthjustice continued, the two components are directly connected, and their integration is not nullified by the fact that other equipment may also be connected to the supermarket rack. Earthjustice added that DOE has long regulated split system residential and commercial air conditioners despite the fact that the outdoor and indoor components are frequently made by different firms. (Earthjustice, No. 47 at p. 5)
Given the small market share of large continuous RCU remote compressor equipment (0.35 percent), DOE finds that Scotsman's claim is credible in that continuous, rack-only equipment comprises only a fraction of the 0.35 percent, and thus a tiny piece of the overall market.
The Earthjustice comment drawing a parallel to split system residential air conditioners overlooks key distinctions. Residential equipment may pair components from different manufacturers, but only one manufacturer is responsible for the certification.
Therefore, DOE decided to maintain its position not to cover rack-only RCU units in this standards rulemaking. DOE does request comment and supporting data on the overall market share of these units and any expected market trends.
Of the 25 equipment classes that DOE is considering in this rulemaking, 13 are already covered under energy conservation standards that were set for cube type ice makers as part of EPACT 2005. Current automatic commercial ice maker standards covering cube type ice makers took effect on January 1, 2010. Under the requirements of EPCA, DOE must review and make a determination as to whether amendments to the standards are technologically and economically justified by January 1, 2015. (42 U.S.C. 6313(d)(3)(A))
In written comments, AHRI opined that, because the full effects of the EPACT 2005 ruling will not be known until at least 2013, DOE should only consider the previously uncovered continuous and high-capacity batch type ice makers in this rulemaking. (AHRI, No. 49 at p. 3) Similarly, Hoshizaki asked DOE not to adjust the energy standards for automatic commercial ice makers that are currently covered, arguing that tightening the regulations that were just released two years ago would negatively impact both manufacturers and end users. (Hoshizaki, No. 53 at p. 3)
DOE is required by statute to review the standards and, if amended standards are technologically feasible and economically justified, to issue a rule to amend the standards. (42 U.S.C. 6313(d)(3)(A))
Manufacturers have asserted that the automatic commercial ice maker industry is a small component of the commercial refrigeration industry, and that given their size they have little or no influence with the manufacturers of major components such as compressors. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 14-15) Manufacturers noted that they are generally restricted to design options available to larger customers. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 15)
Consistent with the comments from manufacturers, DOE's engineering analysis included design options that are viable for automatic commercial ice makers. Most of the design options are extensively used in existing products, and a few design options (brushless DC motors) are available but rarely implemented in this equipment. Chapter 5 of the NOPR TSD contains further details of the analysis for each design option used.
DOE has alternatives with respect to the date that new standards would take effect. EPCA requires that the amended standards established in this rulemaking must apply to equipment that is manufactured on or after 3 years after the final rule is published in the
For the NOPR analyses, DOE assumed a 3-year period to prepare for compliance. DOE requests comments on whether a January 1, 2018 effective date provides an inadequate period for compliance and what economic impacts would be mitigated by a later effective date.
DOE also requests comment on whether the 3-year period is adequate for manufacturers to obtain more efficient components from suppliers to meet proposed revisions of standards.
Under EPACT 2005, water used for ice—referred to as potable water—was not regulated for automatic commercial ice makers.
The amount of potable water used varies significantly among batch type automatic commercial ice makers (
The Alliance for Water Efficiency (Alliance), the Natural Resources Defense Council (NRDC), and CA IOUs proposed that DOE regulate the water use of automatic commercial ice makers. (Alliance, No. 45 at pp. 3-4; NRDC, No. 48 at p. 2; CA IOUs, No. 56 at p. 6) The Alliance noted that the potable water lost from purging represents a waste of the energy required to pump, treat, deliver, and dispose of this water on a national scale. This embedded energy use, the Alliance argued, gives DOE justification to include water efficiency standards along with its energy efficiency standards for automatic commercial ice makers. The Alliance recommended that DOE analyze technical data from real ice makers in order to accurately determine the minimum potable purge water rate required to prevent scaling. The Alliance also observed that the huge variation in potable water use among ice makers of similar capacities suggests that some ice makers may be purging water at excessive rates in order to overcome poor maintenance practices and schedules, which is not a justifiable excuse in the opinion of the Alliance. (Alliance, No. 45 at pp. 3-4) CA IOUs also recommended that DOE consider establishing potable water use limits, especially because the ENERGY STAR program already includes such limits. (CA IOUs, No. 56 at p. 6)
In response to comments from the Alliance, NRDC, and CA IOUs, DOE was not given a specific mandate by Congress to regulate potable water. EPCA, as amended, explicitly gives DOE the authority to regulate water use in showerheads, faucets, water closets, and urinals (42 U.S.C. 6291(6), 6295(j) and (k)), clothes washers (42 U.S.C. 6295(g)(9)(B)), dishwashers (42 U.S.C. 6295(g)(10)(B)), commercial clothes washers (42 U.S.C. 6313(e)), and batch (cube) commercial ice makers. (42 U.S.C. 6313(d)) With respect to batch commercial ice makers (cube type machines), however, Congress explicitly set standards in EPACT 2005 only for condenser water use, which appear at 42 U.S.C. 6313(d)(1), and noted in a footnote to the table that potable water
Hoshizaki commented that potable water use varies from place to place, depending on water quality, and added that the market is already dictated to use less water. (Hoshizaki, Public Meeting Transcript, No. 42 at p. 73) AHRI added that limiting potable water use would decrease ice clarity and increase scaling, which would subsequently increase the overall energy use of the ice maker. Therefore, AHRI and Hoshizaki both recommended against establishing maximum potable water use standards in this rulemaking because of the reduced utility and efficiency that it would cause. (AHRI, No. 49 at pp. 2-3; Hoshizaki, No. 53 at p. 1)
The Hoshizaki and AHRI comments suggest that DOE intends to implement potable water use standards, but this is not the case. Rather, DOE is simply suggesting that reduction of potable water use is a viable technology option that satisfies the screening analysis criteria, as long as reductions are not excessive. This approach does not establish potable water use maximums since manufacturers are not required to use this design option in order to meet efficiency standards. Scotsman noted that the ENERGY STAR program has limited potable water use in ice makers to 25 gallons per 100 lb of ice and that the program is moving toward a new standard of 20 gallons per 100 lb of ice, which it believes to be the minimum levels for avoiding machine performance issues. Scotsman recommended that DOE refer to these ENERGY STAR standards in determining new potable water use limits. (Scotsman, Public Meeting Transcript, No. 42 at pp. 64-65 and No. 46 at p. 5) Manitowoc agreed with Scotsman and added that the new 20 gallons per 100 lb metric was developed with the aid of manufacturers and that further reducing potable water use could impact the long-term reliability of its machines. Therefore, Manitowoc stated that 20 gallons per 100 lb is the lowest water use limit with which it would be comfortable. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 65-66)
However, Manitowoc also commented that potable water use is a variable in the design process that manufacturers have already optimized to satisfy a number of competing factors. Manitowoc argued that, although reducing potable water use would improve machine efficiency up to a point, it would also decrease reliability and increase the required frequency for cleaning due to scaling. Manitowoc stated that the design limits for potable water use often depend on proprietary design elements; therefore, it would be difficult to set reasonable potable water use standards that were fair to all companies, in Manitowoc's opinion. (Manitowoc, No. 54 at p. 3)
Howe noted that measuring potable water use is important because de-scaling is crucial for maintaining the efficiency and utility of automatic commercial ice makers. Howe also recommended that DOE obtain information from additional manufacturers on the relationship between potable water use and ice maker performance. (Howe, No. 51 at p. 2)
DOE has implemented in the analysis the recommendations of several stakeholders that 20 gallons per 100 lb of ice is a reasonable lower limit on potable water use for batch type ice makers, especially considering that there are numerous batch type ice machines that have potable water use at this level or lower. For example, in implementing batch water control as a design option, DOE is limiting the reduction in potable water use to 20 gallons per 100 lb. This should not be confused with the establishment of a standard—this limit affects the extent to which a specific design option saves energy by placing a floor under the potable water usage. Though NRDC claims that reducing potable water use beyond this level would be feasible and beneficial, it has not identified specific designs with significantly less potable water use, nor has it provided data to show that long-term field use of such equipment is viable. Chapter 5 of the NOPR TSD contains more information about this analysis.
As part of the market and technology assessment, DOE developed a comprehensive list of technologies to improve the energy efficiency of automatic commercial ice makers, shown in Table IV.5. Chapter 3 of the NOPR TSD contains a detailed description of each technology that DOE identified. DOE only considered in its analysis technologies that would impact the efficiency rating of equipment as tested under the DOE test procedure. The technologies identified by DOE were carried through to the screening analysis and are discussed in section IV.C.
Howe questioned why the list of design options for continuous type ice makers did not include reduced potable water flow, considering that such machines can have clean or flush cycles. (Howe, Public Meeting Transcript, No. 42 at pp. 30-31)
DOE notes that some continuous machines may include controls or design options that may reduce potable water flow. Therefore, DOE has included reduced potable water flow for continuous machines as one of its design options.
DOE also notes that the test procedure for continuous type ice makers calls for three 14.4-minute long measurements of ice-making production and energy use. The flushing cycles in continuous type ice makers typically do not occur within these measurement periods and the water used for flushing is not captured in the energy use metric; hence, because the engineering analysis cannot evaluate an improvement that occurs outside of the test procedure, this aspect of equipment operation was screened out in the screening analysis.
Scotsman asked whether hydrocarbon refrigerants were considered as a design option. (Scotsman, Public Meeting Transcript, No. 42 at p. 32) Manitowoc responded that hydrocarbon refrigerants should not be considered in the analysis because they have not been approved for use by the U.S. Environmental Protection Agency's (EPA's) Significant New Alternatives Policy (SNAP). (Manitowoc, Public Meeting Transcript, No. 42 at p. 32) AHRI added that refrigerants that are used as alternatives to chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) must be approved by both the EPA and the SNAP program. AHRI noted that, although some hydrocarbon refrigerants were approved for use in residential refrigerators and some commercial refrigerated display cases, they have not been approved for ice makers. (AHRI, Public Meeting Transcript, No. 42 at pp. 32-33)
Manitowoc observed that future legislation may require the use of refrigerants that, based on their current status, have the potential to decrease the energy efficiency of ice makers. (Manitowoc, Public Meeting Transcript, No. 42 at p. 33)
As indicated by AHRI, hydrocarbon refrigerants have not yet been approved by the EPA SNAP program and hence cannot be considered as a technology option in DOE's analysis. DOE also notes that, while it is possible that hydrofluorocarbon (HFC) refrigerants currently used in automatic commercial ice makers may be restricted by future legislation, DOE cannot speculate on such future laws and can only consider in its rulemakings laws that have been enacted. This is consistent with past DOE rulings, such as in the 2011 direct final rule for room air conditioners. 76 FR 22454 (April 21, 2011). To the extent that there has been experience within the industry, domestically or internationally, with the use of alternative low-GWP refrigerants, DOE requests any available information, specifically cost and efficiency information relating to use of alternative refrigerants. DOE acknowledges that there are government-wide efforts to reduce emissions of HFCs, and such actions are being pursued both through international diplomacy as well as domestic actions. DOE, in concert with other relevant agencies, will continue to work with industry and other stakeholders to identify safer and more sustainable alternatives to HFCs while evaluating energy efficiency standards for this equipment.
In the technology assessment section of this NOPR, DOE presents an initial
In the NOPR phase, DOE made several changes to the treatment of design options from the preliminary analysis approach. These changes included:
• Adding a design option to allow for growth of the unit to increase the size of the condenser and/or evaporator;
• Adjusting assumptions regarding maximum compressor EER levels based on additional research and confidential input from manufacturers;
• Adjusting potable water consumption rates for batch type ice makers subject to a floor that represents the lowest potable water consumption rate that would be expected to flush out dissolved solid reliably;
• Adding a design option to allow condenser growth in water-cooled condensers; and
• Adding a drain water heat exchanger design option.
Table IV.7 contains the list of technologies that remained after the screening analysis.
Among the technologies that DOE considered were tube evaporators that use a vertical shell and tube configuration in which refrigerant evaporates on the outer surfaces of the tubes inside the shell, and the freezing water flows vertically inside the tubes to create long ice tubes that are cut into smaller pieces during the harvest process. Some of the largest automatic commercial ice makers in the RCU-NRC-Large-B and the IMH-W-Large-B equipment classes use this technology. However, DOE concluded that implementation of this technology for smaller capacity ice makers would significantly impact equipment utility, due to the greater weight and size of these designs, and to the altered ice shape. DOE noted that available tube icemakers (for capacities around 1,500 lb ice/24 hours and 2,200 lb ice/24 hours) were 150 to 200 percent heavier than comparable cube ice makers. Based on the impacts to utility of this technology, DOE screened out tube evaporators from consideration in this analysis.
DOE's preliminary analysis did not consider low thermal mass evaporator designs. Reducing evaporator thermal mass of batch type ice makers reduces the heat that must be removed from the evaporator after the harvest cycle, and thus decreases refrigeration system energy use. DOE indicated during the preliminary analysis that it was concerned about the potential proprietary status of such evaporator designs, since DOE is aware of only one manufacturer that produces equipment with such evaporators. DOE requested comment on the proprietary status of low-thermal-mass evaporator designs in general, and the design used by the cited manufacturer (Hoshizaki) in particular.
Scotsman commented that Hoshizaki has recently patented or attempted to patent modifications to improve evaporator efficiency and noted that using such evaporator designs would be difficult for other manufacturers because it would require an expensive and risky redesign of entire product lines. (Scotsman, Public Meeting Transcript, No. 42 at pp. 35-36; Scotsman, No. 46 at pp. 2-3) However, Manitowoc observed that, although intellectual property is certainly a concern, there may be ways to implement this low thermal mass evaporator technology without exactly duplicating Hoshizaki's designs. (Manitowoc, Public Meeting Transcript, No. 42 at p. 36)
Hoshizaki commented that its batch type evaporators do indeed contain intellectual property in past and future designs, adding that the tooling costs for manufacturing these evaporators would be too expensive for competing manufacturers to replicate. (Hoshizaki, No. 53 at p. 2)
AHRI recommended that DOE eliminate proprietary designs from consideration and limit its analysis to technologies that are available to all manufacturers in the ice maker industry. (AHRI, No. 49 at p. 4)
Manitowoc commented that, in addition to the obvious legal issues associated with favoring a proprietary design held by a single manufacturer, DOE's analysis tools are also incapable of predicting the potential benefit of low thermal mass evaporators, which are difficult to model accurately. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 36-37 and No. 54 at p. 3) Manitowoc also warned that the impact of this technology on one ice maker should not simply be extrapolated to other machines and that oversimplification of this analysis would affect the predicted efficiency benefits of each technology level. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 36-37) Manitowoc added that customers are very loyal to the style of ice that they get from its machines and that all manufacturers keep customer loyalty in mind when designing their evaporators. Consequently, Manitowoc expressed concern that a new evaporator design could force manufacturers to change the style of their ice, which could drive down sales and result in a low overall payback despite the improved energy performance, and therefore Manitowoc concluded that DOE should not establish higher efficiency levels based on this design option. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 36-37 and No. 54 at p. 3)
On the basis of its proprietary status, DOE concludes that its initial decision to screen out low-thermal-mass evaporator technology was appropriate. Thus, DOE has screened out this technology in its NOPR analysis.
Batch ice makers can benefit from drain water thermal exchange that cools the potable water supply entering the sump, thereby reducing the energy required to cool down and freeze the water. Technological feasibility is demonstrated by one commercially available drain water thermal heat exchanger that is currently sold only for aftermarket installation. This product is designed to be installed externally to the
In the preliminary analysis, DOE considered whether such a component could be considered to be part of an ice maker as defined in EPCA. The EPCA definition for automatic commercial ice makers states that the ice maker consists of a condensing unit and ice-making section operating as an integral unit, with means for making and harvesting ice. (42 U.S.C. 6311(19)) The definition allows that the ice maker may include means for storing ice, dispensing ice, or storing and dispensing ice. None of the subcomponents of the ice maker listed in the definition could be interpreted as referring to heat exchangers for drain water thermal exchange. DOE notes that an ice maker can still make ice without a drain water heat exchanger; hence, the drain water heat exchanger cannot be considered an integral part of the equipment. For these reasons, DOE concluded during the preliminary analysis that external drain water heat exchangers, the only configuration of this technology for which technological feasibility is demonstrated, should be screened out, and requested comments on this approach.
NPCC asserted that DOE should consider drain water thermal exchange as a technology option. NPCC proposed that reducing the inlet water temperature could enable an ice maker to maintain the same capacity without increasing the overall size of the unit. Although NPCC does not manufacture ice makers, it acknowledged having seen this technology implemented in other applications, such as water heating, without reducing capacity or increasing overall size. (NPCC, Public Meeting Transcript, No. 42 at pp. 37-38)
Earthjustice commented that DOE's rationale for screening out drain water thermal heat exchangers was defective on both legal and factual grounds. In the preliminary analysis TSD, DOE suggested that externally mounted drain water heat exchangers would fall outside EPCA's definition of automatic commercial ice makers, and that DOE therefore had no authority to consider them in this rulemaking. Earthjustice argued that this reading twists the statutory definition's role in identifying which products constitute the “automatic commercial ice makers” subject to efficiency standards into a “Dos and Don'ts” list from Congress as to which elements of ice makers DOE may examine when amending the standards that Congress enacted. Congress adopted standards that apply to the ice maker as a whole, and Earthjustice asserted that there is therefore no basis to conclude that EPCA intended to prohibit DOE from looking holistically at this equipment when amending the statutory standards. Earthjustice added that, if every technological innovation that improved the efficiency of a covered product needed to be specifically mentioned in the statute's definition of the product, there would be no need for a screening analysis. Earthjustice also noted that, in previous rulemakings, DOE consistently recognized that components that improve the efficiency of covered products merit consideration in the DOE's analyses, notwithstanding that they may be unnecessary to the basic function performed by the product, not referred to in the statutory definition applicable to the product, or external to the case or envelope of the device. Finally, Earthjustice commented that DOE's assertion that internally mounted drain heat exchangers would necessarily increase cabinet size is not true for all ice maker models. Moreover, Earthjustice stated, DOE has not considered options such as microchannel heat exchangers, which would increase both machine efficiency as well as available cabinet space within the ice maker. (Earthjustice, No. 47 at pp. 1-4)
DOE has reconsidered its preliminary suggestion that external drain water heat exchangers cannot be considered part of an ice maker simply because they are not specifically mentioned in the EPCA definition, now concluding that they can be considered as a design option and to be part of a basic model ice maker, assuming that the drain water heat exchanger is sold and shipped with the unit and that the installation and operating instructions clearly reinforce this inclusion by detailing the installation requirements for the heat exchanger.
Thus, DOE is including this technology as a design option. As NPCC noted, externally mounted drain water heat exchangers would provide energy savings by using “waste” water to cool the incoming potable water supply, thus reducing the amount of energy necessary to freeze the water into ice. Whereas internal heat exchangers may require increased cabinet size to fit within the ice maker, allowing external heat exchangers as a design option would prevent size increase.
DOE has concluded that drain water heat exchangers, both internally mounted and externally mounted, are design options that can increase the energy efficiency of automatic commercial ice makers. The current test procedures would give manufacturers credit for efficiency improvement of drain water heat exchangers, including externally mounted drain water heat exchangers as long as they are provided with the machine and the installation instructions for the machine indicate that the heat exchangers are part of the machine and must be installed as part of the overall installation.
Some of the design options considered by DOE in its technology assessment could require an increased cabinet size. Examples of such design options include increasing the surface area of the evaporator or condenser, or both. Larger heat exchangers would enable the refrigerant circuit to operate with an increased evaporating temperature and a decreased condensing temperature, thus reducing the temperature lift imposed on the refrigeration system and hence the compressor power input. In some cases the added refrigerant charge associated with increasing heat exchanger size could also necessitate the installation of a refrigerant receiver to ensure proper refrigerant charge management in all operating conditions for which the unit is designed, thus increasing the need for larger cabinet size.
In the preliminary analysis, DOE did not consider design options that increase cabinet size, and it requested comment on this approach. (DOE, Public Meeting Presentation, No. 29 at p. 35)
Earthjustice observed that this issue, in which certain design options necessitate larger products and therefore larger installation costs, is common in rulemakings. Despite the potential difficulties that increased size could pose for ice maker manufacturers and customers, Earthjustice commented that the preliminary analysis is not necessarily the stage of the rulemaking in which such design options should be ruled out. (Earthjustice, Public Meeting Transcript, No. 42 at pp. 46-47)
At the February 2012 preliminary analysis public meeting, Manitowoc pointed out that the size of ice makers is severely limited in certain applications, which would make it difficult for manufacturers to implement design changes that reduce energy but require an increase in size. Manitowoc warned that DOE should not assume that all ice maker manufacturers can increase the sizes of their ice machines to meet standards. In many cases,
Scotsman commented that, for products at the top of the capacity range within a given standard cabinet size, manufacturers cannot increase the size of internal components such as air-cooled condensers without increasing the machines' cabinet size. This would make the machines less competitive because they would no longer physically fit in certain applications, according to Scotsman. (Scotsman, Public Meeting Transcript, No. 42 at pp. 87-88) Moreover, Scotsman noted that assessing the impact of a technology on one type of machine and applying it to other types can be difficult and inaccurate. For example, while increasing condenser area could be simple for a 300-lb machine, it may require retooling several parts, in addition to increasing cabinet size and thus also increasing overall costs, to make the same condenser growth fit in a 600-lb machine. (Scotsman, No. 46 at p. 2) Finally, Scotsman stated that increasing the size of ice makers will cause cabinet costs to increase. (Scotsman, Public Meeting Transcript, No. 42 at p. 64) Therefore, Scotsman agreed with its fellow manufacturers that DOE should avoid design options requiring cabinet size increases. (Scotsman, No. 46 at p. 4)
Manitowoc commented that it is rare for manufacturers to have data regarding available space, ventilation, or other variables regarding the final installation of their products. Moreover, Manitowoc added that forcing an ice maker with larger cabinet size into an existing space that is too small for it would exacerbate condenser air recirculation, which decreases its efficiency and reliability. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 62-63)
However, Scotsman also commented that an ice maker's energy use typically decreases as its size increases, meaning that it may be more efficient to use an oversized machine than one that has been downsized. (Scotsman, Public Meeting Transcript, No. 42 at pp. 61-62)
Howe commented that the physical size of an automatic commercial ice maker has no effect on its efficiency or its run time. According to Howe, the run time of ice makers is a function of their productive capacity as well as the size of their ice storage bins, because ice production automatically ceases when the bin is full. Howe added that regulating the physical size of ice makers may limit the use of new, more efficient technologies in the future. Therefore, Howe urged DOE not to consider limiting the physical size of ice makers. (Howe, No. 51 at pp. 1-2)
NEEA/NPCC also urged DOE not to consider limiting ice maker cabinet size in the rulemaking. NEEA/NPCC pointed out that, although improving the efficiency of an ice maker may require increasing the size of its components, many ice makers have sufficient room in their cabinets to accommodate such size increases. According to NEEA/NPCC, advanced evaporator designs could be used to meet efficiency and capacity requirements for ice makers whose evaporators already require the full cabinet size. (NEEA/NPCC, No. 50 at p. 2)
CA IOUs agreed that DOE should not screen out design options that would require an increase in cabinet size. CA IOUs referred to a limited field study whose results indicated to CA IOUs that larger ice-making equipment may be accommodated in most situations. CA IOUs added that there is no evidence as to whether there may be another space in installation locations that could accommodate a larger ice maker. Therefore, CA IOUs asserted that, in the absence of a survey or field study that shows size constraints to be an issue, DOE should not use size to screen out design options. (CA IOUs, No. 56 at p. 3)
Based on these comments from stakeholders, DOE understands that automatic commercial ice makers are often used in applications where space is very limited. DOE has not received any data supporting or refuting the characterization that installation locations may be able to accommodate larger icemakers.
Although CA IOUs cited a study indicating that installation locations may be able to accommodate larger ice makers,
Particularly because replacements comprise such a large portion of the ice maker industry, ice makers affected by the proposed standard must maintain traditional standard widths and depths. Allowing design options that necessitate physical size increases may push certain capacity units beyond their current standard dimensions and would thus force the use of lower-capacity machines in replacement applications, which would significantly reduce equipment utility.
On the other hand, screening out size-increasing design options would eliminate from consideration technologies that could significantly reduce the energy consumption of automatic commercial ice makers.
Consideration of design options that increase the size of ice makers is strongly related to consideration of size-constrained design options. DOE notes that, while stakeholders have pointed out that many automatic ice maker applications are space-constrained, as described in section IV.B.1.a, DOE does not have access to sufficiently-detailed data that would either indicate what percentage of applications could not allow size increase, or be the basis to set size limits for space-constrained classes. Thus, DOE has also decided not to create size-constrained equipment classes.
DOE also notes that there are a wide range of product sizes within most equipment classes, and that DOE must seek out the most-efficient configurations. DOE noted that the equipment it purchased for reverse engineering inspections reflected a general trend that more-efficient units were often larger, had larger condensers, and in some cases had larger evaporators. Based on DOE's market study and equipment inspections, larger chassis sizes appeared often to be a means of achieving higher efficiencies.
Thus, DOE is including this package-size-increasing technologies as design options in the NOPR analysis. DOE only
For equipment classes with remote condensers, DOE only applied this design option to the condenser package, and not to the ice-making head that is placed indoors. In general, DOE only considered increasing the size of the evaporator whenever the product inspections (see section IV.D.4.e) indicated that it was needed to increase efficiency.
In addition, DOE recognizes that space constraints are more critical for SCU units; hence, DOE did not consider package size growth for SCU equipment classes.
Table IV.8 indicates for which analyzed equipment classes DOE considered chassis growing design options.
Table IV.9 shows the size increases that DOE considered in the analysis. DOE only considered these size increases when a unit existed on the market that was larger than the baseline unit. DOE based the new chassis sizes on the sizes of current units on the market.
Further information on this analysis is available in chapter 5 of the NOPR TSD.
NEEA/NPCC, ASAP, and Earthjustice all recommended that DOE include microchannel heat exchanger technology in its examination of design options for improving condenser and evaporator efficiency. NEEA/NPCC noted that this technology has been used in heat exchangers for air handling equipment for years and it would allow for increased efficiency or greater ice production capacity. (NEEA/NPCC, No. 50 at p. 2) ASAP commented that, although it is not aware of ice makers on the market that incorporate microchannel heat exchangers, ice maker manufacturers who have tested prototype units that implement this technology have noticed significant efficiency improvements. (ASAP, No. 52 at p. 1) Finally, Earthjustice noted that microchannel heat exchanger technology would increase both machine efficiency and available cabinet space within the ice maker. (Earthjustice, No. 47 at pp. 1-4)
DOE has not found evidence that this technology is cost-effective. Moreover, through discussions with manufacturers, DOE has learned of no instances of energy savings associated with the use of microchannel heat exchangers in ice makers. Manufacturers also noted that the reduced refrigerant charge associated with microchannel heat exchangers can be detrimental to the harvest performance of batch type ice makers, as there is not enough charge to transfer heat to the evaporator from the condenser.
DOE contacted microchannel manufacturers to determine whether there were savings associated with use of microchannel heat exchangers in automatic commercial ice makers. These microchannel manufacturers noted that investigation of microchannel was driven by space constraints rather than efficiency.
Because the potential for energy savings is inconclusive, based on DOE analysis as well as feedback from manufacturers and heat exchanger suppliers, and based on the potential utility considerations associated with compromised harvest performance in batch type ice makers associated with this heat exchanger technology's reduced refrigerant charge, DOE
CA IOUs recommended that DOE also consider including “smart” technologies as design options that will go beyond simple energy savings by capturing demand reductions as well. To support this proposition, CA IOUs referenced a study showing that, for automatic commercial ice-making equipment, there are 450 megawatts of demand reduction potential in California alone, indicating a significant nationwide possibility for reducing the energy demand associated with ice makers. If DOE does not include “smart” technologies as design options, CA IOUs instead asked that DOE comment on whether states will be allowed to implement such design option requirements for ice-making equipment. (CA IOUs, No. 56 at pp. 5-6)
While there may be energy demand benefits associated with use of “smart technologies” in ice makers in that they reduce energy demand (
Howe suggested that DOE gather information on a wider variety of design types of both batch and continuous type ice makers before completing its analyses, noting that DOE may have prematurely screened out design options simply because they had adverse effects on the ice makers within the small range of design parameters for which DOE collected data. (Howe, No. 51 at p. 4)
Howe has not provided specific examples of technologies that it has claimed that DOE prematurely screened out, so DOE is not in a position to respond. During the NOPR analysis, DOE analyzed additional units and accounted for this additional data in its engineering analysis. DOE considered a wide range of design types for ice makers, and screened out technologies as described in section IV.D.
The engineering analysis determines the manufacturing costs of achieving increased efficiency or decreased energy consumption. DOE historically has used the following three methodologies to generate the manufacturing costs needed for its engineering analyses: (1) The design-option approach, which provides the incremental costs of adding to a baseline model design options that will improve its efficiency; (2) the efficiency level approach, which provides the relative costs of achieving increases in energy efficiency levels, without regard to the particular design options used to achieve such increases; and (3) the cost-assessment (or reverse engineering) approach, which provides “bottom-up” manufacturing cost assessments for achieving various levels of increased efficiency, based on detailed data as to costs for parts and material, labor, shipping/packaging, and investment for models that operate at particular efficiency levels.
As discussed in the Framework document and preliminary analysis, DOE conducted the engineering analyses for this rulemaking using a combined efficiency level/design option/reverse engineering approach to developing cost-efficiency curves for automatic commercial ice makers. DOE established efficiency levels defined as percent energy use lower than that of baseline efficiency products. DOE's analysis is based on the efficiency improvements associated with groups of design options. Also, DOE developed manufacturing cost models based on reverse engineering of products to develop a baseline manufacturer production cost (MPC) and to support calculation of the incremental costs associated with improvement of efficiency.
DOE selected a set of 25 equipment classes to analyze directly in the engineering analysis. To develop the analytically derived cost-efficiency curves, DOE collected information from various sources on the manufacturing cost and energy use reduction characteristics of each of the design options. DOE reviewed product literature, tested and conducted reverse engineering of 39 ice makers, and interviewed component vendors of compressors and fan motors. DOE also conducted interviews with manufacturers during the preliminary analysis. Additional details of the engineering analysis are available in chapter 5 of the NOPR TSD and a copy of the engineering questionnaire is reproduced in appendix 12A of the NOPR TSD.
Cost information from the vendor interviews and discussions with manufacturers provided input to the manufacturing cost model. DOE determined incremental costs associated with specific design options from both vendor information and the cost model. DOE modeled energy use reduction using the FREEZE program, which was developed in the 1990s and upgraded as part of the preliminary analysis. The reverse engineering, vendor interviews, and manufacturer interviews provided input for the energy analysis. The final incremental cost estimates and the energy modeling results together constitute the energy efficiency curves presented in the NOPR TSD chapter 5.
DOE also considered conducting the engineering analysis using an efficiency level approach based on rated and/or measured energy use and manufacturing cost estimates based on reverse engineering data. DOE completed efficiency level analyses for several equipment classes but concluded that this approach was not viable, because the analysis suggested that cost would be reduced for higher efficiency designs for several of the equipment classes. This analysis is discussed in section IV.D.4.e and in chapter 5 of the NOPR TSD.
In performing its engineering analysis, DOE selected representative units for 12 equipment class to serve as analysis points in the development of cost-efficiency curves. In selecting these units, DOE selected models that were generally representative of the typical offerings produced within the given equipment class. DOE sought to select models having features and technologies typically found in the minimum efficiency equipment currently available on the market, but selected some models having features and technologies typically found in the highest efficiency equipment currently available on the market.
EPCA, as amended by the EPACT 2005, prescribed the following standards for batch type ice makers, shown in Table IV.10, effective January 1, 2010. (42 U.S.C. 6313(d)(1)) For the engineering analysis, DOE used the existing batch type equipment standards as the baseline efficiency level for the
For the IMH-W-Small-B equipment class, DOE slightly adjusted the baseline energy use level to close a gap between the IMH-W-Small-B and the IMH-W-Medium-B equipment classes. For equipment in the IMH-A-Large-B equipment class with harvest capacity above 2,500 lb ice per 24 hours, DOE chose a baseline efficiency level equal to the current standard level at the 2,500 lb ice per 24 hours capacity. In its analysis, DOE is treating the constant portion of the IMH-A-Large-B equipment class as a separate equipment class, IMH-A-Extended-B. Section IV.C contains more details of these adjustments.
DOE is not proposing adjustment of maximum condenser water use standards for batch type ice makers. First, DOE's authority does not extend to regulation of water use, except as explicitly provided by EPCA. Second, DOE determined that increasing condenser water use standards to allow for more water flow in order to reduce energy use is not cost-effective. The details of this analysis are available in chapter 5 of the NOPR TSD.
For water-cooled batch equipment with harvest capacity less than 2,500 lb ice per 24 hours, the baseline condenser water use is equal to the current condenser water use standards for this equipment.
For water-cooled equipment with harvest capacity greater than 2,500 lb ice per 24 hours, DOE proposes to set maximum condenser water standards equal to the current standard level for the same type of equipment with a harvest capacity of 2,500 lb ice per 24 hours—the proposed standard level would not continue to drop as harvest capacity increases, as it does for equipment with harvest capacity less than 2,500 lb ice per 24 hours.
Currently there are no DOE energy standards for continuous type ice makers. During the preliminary analysis, DOE developed baseline efficiency levels using energy use data available from several sources, as discussed in chapter 3 of the preliminary TSD. DOE chose baseline efficiency levels that would be met by nearly all ice makers represented in the databases. Also, because energy use reported at the time DOE was preparing the preliminary analysis did not include the hardness adjustment prescribed by the new test procedure,
For the NOPR analysis, DOE used newly available information published in the AHRI Directory of Certified Product Performance, the California Energy Commission, the ENERGY STAR program, and vendor Web sites, to update its icemaker ratings database (“DOE icemaker ratings database”). In 2012, AHRI published equipment ratings for many continuous type ice makers, including ice hardness factors calculated as prescribed by ASHRAE 29-2009, which is incorporated by reference in the new DOE test procedure. DOE recreated its database for continuous type ice makers based on the available AHRI data, considering only the ice makers for which AHRI ratings for ice hardness were available. DOE also adjusted the harvest capacity break points for the continuous equipment classes based on the new data.
The baseline efficiency levels for continuous type ice makers are presented in Table IV.11. They are
For each of the nine analyzed batch type ice-making equipment classes, DOE established a series of incremental efficiency levels for which it has developed incremental cost data and quantified the cost-efficiency relationship. DOE chose a set of analyzed equipment classes that would be representative of all batch type ice-making equipment classes, and grouped non-analyzed equipment classes with analyzed equipment classes accordingly in the downstream analysis. Table IV.12 shows the selected incremental efficiency levels.
For the IMH-A-Large-B equipment class, DOE is adopting its suggested approach from the preliminary analysis meeting. (DOE, Preliminary Analysis Public Meeting Presentation, No. 42 at p. 29) As part of this approach, DOE is treating the largest units as an extended equipment class (IMH-A-Extended-B), basing the analysis for this equipment class on the analysis for a 1,500 lb ice/24 hour IMH-A-Large-B unit. When setting TSLs, DOE is considering the 800 lb ice/24 hour IMH-A-Large-B analysis separately from the 1,500 lb ice/24 hour analysis.
For each of the three analyzed continuous type ice maker equipment classes, DOE established a series of incremental efficiency levels, for which it has developed incremental cost data and quantified the cost-efficiency relationship. DOE chose a set of analyzed equipment classes that would be representative of all continuous type ice-making equipment classes, and grouped non-analyzed equipment classes with analyzed equipment classes accordingly in the downstream analysis, as discussed in section V.A.1. Table IV.13 shows the selected incremental efficiency levels. The efficiency levels are defined by the percent energy use less than the baseline energy use.
DOE selected the efficiency levels for the continuous type ice makers based on the levels proposed in the preliminary analysis.
The current DOE energy conservation standard for large air-cooled IMH cube type ice makers is represented by an equation for which maximum allowable energy usage decreases linearly as harvest rate increases from 450 to 2,500 lb ice/24 hours. Extending the current IMH-A-Large-B equation to the 4,000 lb ice/24 hours range would result in efficiency levels in the newly covered range (between 2,500 lb/day and 4,000 lb/day) that may not be technically feasible. For example, at 4,000 lb ice/24 hours, the specified baseline energy use would be 2.49 kWh/100 lb, a value far below the energy consumption of existing IMH-A-Large-B ice makers (
Hence, DOE is proposing to use the approach it outlined in the preliminary analysis meeting for the IMH-A-Large-B equipment class (DOE, Preliminary Analysis Public Meeting Presentation, No. at p. 29). Further, DOE proposes to separate capacity ranges of this class into ranges designated IMH-A-B and IMH-A-Extended-B, the first for equipment with harvest capacity less than 1,500 lb ice/24 hours and the second with greater harvest capacity. The proposed IMH-A-B efficiency levels would be constant between 800 and 1,500 lb ice/24 hours. Each proposed IMH-A-Extended-B efficiency level would start at an energy use that is equal to that of one of IMH-A-B efficiency levels. Its energy use would remain constant at this level within its lower range of harvest capacity rates, but would follow the current DOE standard between the harvest capacity for which the constant level equals the current DOE standard and 2,500 lb ice/24 hours. Beyond 2,500 lb ice/24 hours, it would remain constant from 2,500 to 4,000 lb ice/24 hours.
For the NOPR analysis, DOE considered the most-efficient equipment available on the market, known as maximum available equipment. In some cases, the maximum available equipment uses technology options that DOE chose to screen out for its analysis. Hence, DOE also identified maximum available equipment without screened technologies (see the discussion of the engineering analysis in section IV.D.2.f). The technologies that are used in some maximum available equipment that were screened out include low thermal-mass evaporators and tube evaporators for batch type ice makers.
Efficiency levels for maximum available equipment in the batch type ice-making equipment classes are tabulated in Table V.16. This information is based on DOE's icemaker ratings database (also see data in chapter 3 of the NOPR TSD). The efficiency levels are represented as an energy use percentage reduction compared to the energy use of baseline-efficiency equipment, the selection of which is discussed in section IV.D.2.a.
Efficiency levels for maximum available equipment in the continuous type ice-making equipment classes are tabulated in Table IV.15. This information is based on a survey of product databases and manufacturer Web sites (also see data in chapter 3 of the TSD). The efficiency levels are represented as an energy use percentage reduction compared to the energy use of baseline-efficiency equipment, the selection for which is discussed in section IV.D.2.a. DOE used the maximum available efficiency levels to calibrate its engineering analysis against current equipment.
When DOE proposes to adopt (or not adopt) an amended or new energy conservation standard for a type or class of covered equipment such as automatic commercial ice makers, it determines the maximum improvement in energy efficiency that is technologically feasible for such equipment. (
The max-tech efficiency levels represent equipment combining all of the design options. However, they are not generally attained by existing equipment—this is largely due to the consideration of design options seldom used in commercially available equipment because they are not considered to be cost-effective by manufacturers, such as brushless DC motors and drain water heat exchangers. DOE does not screen out design options based on cost-effectiveness.
Table III.2 and Table III.3 show the max-tech levels determined in the engineering analysis for batch and continuous type automatic commercial ice makers, respectively.
Manitowoc noted that there are no industry standards for the calorimetric values of different types of ice and cautioned that DOE's assumptions for these calorimetric values may invalidate its analysis of manufacturer-supplied data. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 51-52) Hoshizaki recommended that ice hardness have one standard that incorporates all continuous type ice maker data and added that DOE should readdress the baseline for continuous type ice-making equipment after taking AHRI's 2012 ice hardness verification testing into account. (Hoshizaki, No. 53 at p. 1)
Howe recommended that DOE supplement its data on continuous type ice makers by including results from tests using the current test procedure, adding that information on continuous type ice makers has changed drastically as of late. (Howe, No. 51 at p. 2)
DOE notes that some of these comments were made before AHRI had completed verification testing work that is mentioned by Hoshizaki. DOE updated its database over the course of 2012, as many of the continuous type ice maker data in AHRI's database were updated, and hardness data was provided. DOE has primarily used this data, supplemented by DOE test data (including hardness test data) to evaluate the energy consumption characteristics of continuous type ice-making equipment and to set efficiency levels.
DOE notes that, consistent with Hoshizaki's suggestion, the proposed
Manitowoc expressed confusion over the relationship between the efficiency levels and the technology options that go into those efficiency levels. Therefore, Manitowoc requested that DOE provide additional information to explain which technology options were associated with each efficiency level. (Manitowoc, Public Meeting Transcript, No. 42 at p. 51)
Manitowoc pointed out that one of the SCU-air-cooled models used for the max-available efficiency level is actually a combined ice machine and hotel dispenser, and as such is not a representative example of the SCU category, which generally consists of undercounter designs. Manitowoc further stated that its larger size would allow the model to achieve higher efficiencies than would normally be possible for the majority of SCU air-cooled models. Therefore, Manitowoc commented, this model should not be used to justify the max-available efficiency attainable for this category of ice makers. (Manitowoc, No. 54 at pp. 2-3)
In response to Manitowoc's comment regarding the relationship of design options and efficiency levels, DOE provided additional information in the automatic commercial ice maker docket, as a supporting and related material document
DOE notes that Manitowoc is correct in its observation that one of the max-available SCU models from the preliminary analysis is not representative of the undercounter units that make up the majority of the SCU category. DOE had intended to avoid inclusion of oversize SCU models that are not suitable for undercounter design in its establishment of maximum technology for SCU equipment classes. DOE has reviewed the maximum technology designations and has removed all ice maker-dispenser combinations from consideration in its analysis.
In its preliminary engineering analysis, DOE concluded that the 0.2 kWh per 100 lb ice differential in maximum allowable energy use for large-sized batch RCU ice makers with remote compressors as compared with those with compressors in the ice-making heads is appropriate, both for batch and continuous type ice makers. (DOE, Preliminary Analysis Public Meeting Presentation, No. 29 at p. 30) DOE requested comment on this conclusion.
Manitowoc confirmed that the 0.2 kWh per 100 lb of ice difference in energy use between these two classes of RCUs seemed valid and that it was reasonable to continue using this value while developing the new standards. (Manitowoc, Public Meeting Transcript, No. 42 at p. 44 and No. 54 at p. 3) CA IOUs stated that its analysis of product data indicates that RCUs with and without dedicated remote compressors do not consume significantly different levels of energy. CA IOUs thus suggested that DOE continue to look at product performance data and customer utility in order to determine whether separate equipment classes and efficiency levels are necessary for these two types of RCU units. (CA IOUs, No. 56 at p. 2)
Consistent with the comment from Manitowoc, DOE plans to continue using this differential of 0.2 kWh per 100 lb of ice to differentiate between RCUs with and without remote compressors.
DOE has established baseline and incremental efficiency levels for large-capacity ice makers in the newly extended capacity between 2,500 and 4,000 lb ice/24 hours.
AHRI noted that the current efficiency standard for high-capacity batch machines was established based on the performance of ice makers available in the marketplace and that extending this efficiency level to ice makers with capacities exceeding 2,500 lb ice/24 hours may not be appropriate. AHRI recommended that DOE either select and analyze products in this capacity range or refrain from regulating these products if there are not actually enough high-capacity batch machines available for DOE to analyze. (AHRI, No. 49 at pp. 3-4)
Manitowoc stated that efficiency curves are typically flat for icemakers with capacities above 2,000 to 2,500 lb ice/24 hours and noted that this phenomenon is driven mainly by trends in compressor efficiencies, which have decreasing efficiency gains above a certain size. Additionally, Manitowoc commented that it tends to use multiple evaporators for large-capacity machines, rather than making new evaporators for every size, so its overall evaporator performance also does not improve significantly over a certain size. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 48-49)
However, Manitowoc also commented that DOE did not adequately analyze the efficiency of ice machines in the 2,000 to 4,000 lb ice/24 hour capacity range. Manitowoc suggested that it is likely that, above a certain capacity, DOE will find that the relative benefit of some design options to be lower due to the relatively higher efficiency of the baseline components already in use. (Manitowoc, No. 54 at p. 3)
Howe commented that most high-capacity ice makers are inherently more efficient than their lower-capacity counterparts and thus cannot be expected to achieve the same incremental efficiency gains. Howe added that, if incremental efficiency gains do indeed vary significantly by harvest capacity, equipment class definitions may need to change. (Howe, No. 51 at pp. 2-3)
Hoshizaki recommended that DOE make equipment plots for high-capacity batch models in order to compare existing models against the proposed efficiency levels. (Hoshizaki, No. 53 at p. 2)
Hoshizaki commented that DOE needs to analyze the available data for all eligible RCU models rather than just relying on software assumptions to inform its analysis. Hoshizaki added that there is not enough data available for DOE to adequately assess high-capacity (>2,500 lb ice/24 hours) RCU energy use and recommended that manufacturers provide input to DOE regarding these high-capacity units. (Hoshizaki, No. 53 at p. 1)
In response to AHRI, DOE reiterates that there is precedence for setting standards for capacity ranges for which equipment is not being sold, including
In response to Manitowoc's comment regarding analysis of batch type ice makers in the 2,000 to 4,000 lb ice/24 hours harvest capacity range, DOE notes that it has conducted analysis for three of these products—given the limited number of such products available, this likely represents a greater percentage of the available products than DOE evaluated at lower-harvest-capacity rates. Because, as mentioned by Manitowoc, efficiency characteristics of the components of ice makers such as compressors and evaporators no longer improve as capacity increases, it is reasonable to expect that ice maker efficiency will also remain constant at high-harvest-capacity rates. For this reason, it is appropriate to represent performance of the full harvest capacity range with the available ice makers of the highest harvest capacities, as DOE has done.
In response to Howe's comment, DOE has not considered reductions in efficiency at constant kilowatt-hours per 100 lb ice levels across the harvest capacity range. Instead, DOE has considered reductions in energy use in terms of percentages of baseline energy use. Hence, the energy use reductions associated with the incremental efficiency levels would be significantly less for a large-harvest-capacity ice maker with an already inherently low energy use than it would for a lower-harvest-capacity ice maker. Further, if the larger-capacity ice makers are inherently more efficient, as Howe contends, DOE's approach using efficiency levels that do not vary with capacity should not be overly aggressive,
With respect to Hoshizaki's recommendation regarding examination of efficiency plots, DOE has reviewed energy use data for all products for which such data is available. The maximum efficiency levels considered in the analysis are not generally attained by existing equipment—this is largely due to the consideration of design options often considered not to be cost-effective by manufacturers, such as brushless DC motors and drain water heat exchangers. However, DOE's analysis results compared well to the maximum available without screened technologies efficiency level.
In response to the second comment from Hoshizaki, DOE notes that the analysis for high-capacity units considered several pieces of information, including available performance rating data of the AHRI database and confidential interviews with manufacturers. A significant amount of the information obtained from manufacturers in confidential interviews was obtained during the NOPR phase, in part in response to preliminary analysis phase comments, such as the Hoshizaki comment, recommending some information exchange. In addition, DOE purchased and conducted reverse engineering on the largest-capacity batch and continuous type ice makers made by the manufacturers that comprise 90 percent or greater share of the ice maker market. DOE also conducted energy testing on a few of these ice makers. DOE believes that its analysis of RCU equipment is representative of the large-capacity equipment classes. Additional information on the teardown analysis is available in chapter 5 of the NOPR TSD.
NPCC, ASAP, and NEEA/NPCC commented on the max-tech efficiency levels (
Scotsman noted that, even within a single equipment class, maximum technology levels will differ among models. For example, although DOE is considering compressor upgrade as a design option, many ice maker units are already using the most-efficient compressor suitable to their respective applications. Scotsman added that the analytical model used to calculate energy use for max-tech levels had not been validated and was thus unreliable. (Scotsman, No. 46 at p. 4)
DOE acknowledges that there are units on the market that surpass the max-tech levels it proposed for the preliminary analysis. In some cases maximum available efficiency units include technologies that DOE had decided not to consider. For example, some max-tech units utilize proprietary technologies that are not available to the majority of manufacturers and were screened out in the screening analysis. Due to these differences, DOE's max-tech efficiency levels did not always exceed the max-available levels found on the market. Because they are representative of the whole market, DOE's max-tech levels must take into account issues with proprietary technologies as well as utility issues stemming from certain technologies (such as chassis size increases or ice cube shapes).
In the NOPR phase, DOE made several changes to the preliminary analysis. These changes included:
• Adding a design option to allow for growth of the unit to increase the size of the condenser and/or evaporator;
• adjusting assumptions regarding maximum compressor EER levels based on additional research and confidential input from manufacturers;
• adjusting potable water consumption rates for batch type ice makers subject to a floor that represents the lowest potable water consumption rate that would be expected to flush out dissolved solid reliably;
• adding a design option to allow condenser growth in water-cooled condensers; and
• adding a drain water heat exchanger design option.
These changes have led to new max-tech levels. These levels are compared
DOE considered max-tech and max-available levels as part of its analysis. The max-tech levels for batch and continuous type ice makers are discussed in section IV.D.2.e. In addition to comparing the max-tech, “most efficient on market”, and the “max available without screened technologies” efficiency levels for batch type ice makers. Table IV.18 provides brief explanations for the differences between max-available and max-tech levels. More details regarding the design options that correlate with the different efficiency levels are provided in the NOPR TSD. DOE requests comments on the max-tech levels identified in today's NOPR, the max available and max available without screened technologies levels, and the reasons cited for the max tech/max available differences.
For continuous and high-capacity batch type ice makers, AHRI recommended that DOE derive its baseline efficiency levels from machines that are currently on the market, for which AHRI's new directory of certified products could be a useful information source. AHRI cautioned, however, that its certification program was new and that it expected the data to change after completion of its 2012 test program. (AHRI, No. 49 at p. 3)
Manitowoc asserted that, while EPACT 2005 is the correct baseline efficiency level for batch equipment, continuous type ice machines do not have sufficient history under any alternative certification programs and therefore require careful review and analysis by DOE prior to setting efficiency levels. (Manitowoc, No. 54 at p. 3)
Hoshizaki asserted that DOE should not use Canadian levels for continuous type ice makers and instead suggested that DOE use efficiency levels developed for machines that are currently on the market. (Hoshizaki, No. 53 at p. 1)
In the preliminary analysis, DOE proposed a set of equations to represent baseline efficiency levels for the 12 continuous equipment classes. 77 FR 3404 (Jan. 24, 2012). The equations were developed based on publicly available information of continuous type ice maker energy use for products on the market. As there was no source of ice quality data for most of these products to allow calculation of the energy use consistent with the new test procedure, which calls for adjustment of the rating to account for ice hardness, DOE made these adjustments using ice hardness equal to 0.85 for nugget ice makers and 0.8 for flake ice makers. Further details of this analysis are available in the preliminary analysis TSD.
DOE revised its development of continuous type ice maker efficiency levels for the NOPR, based on data for continuous type ice machines that was available on the AHRI database Web site as of October 11, 2012. The database now contains ratings for ice quality, which DOE incorporated into its analysis. DOE's analyses consider higher max tech levels than the max available levels, as represented by the AHRI data, because the analysis considers use of design options, such as higher efficiency permanent magnet motors, which are not used in the majority of existing ice makers. DOE's continuous baseline levels for the NOPR analysis are presented in Table IV.11.
DOE has taken advantage of the new information for continuous type ice makers that has become available on the AHRI Web site to support its selection of efficiency levels for these equipment classes.
Howe asked that DOE further clarify the methodology it used to establish efficiency and technology levels, especially for equipment classes in which there are few models available. Howe also asked whether DOE considered the refrigerating conditions used to produce ice or the typical efficiency levels associated with the refrigeration system. (Howe, No. 51 at p. 3)
DOE does not have sufficient resources to thoroughly analyze all
After conducting the screening analysis and removing from consideration the technologies described above, DOE included the remaining technologies as design options in the NOPR engineering analysis. These technologies are listed in Table IV.19, with indication of the equipment classes to which they apply.
During the preliminary analysis, DOE considered size increase for the condenser to reduce condensing temperature and compressor power input. DOE requested comment on use of this design option and on the difficulty of implementing it in ice makers with size constraints.
AHRI commented that most condensers are already optimized and occasionally oversized; therefore, further increasing condenser area would not have any efficiency benefits and could instead necessitate increased cabinet size. (AHRI, No. 49 at p. 2)
Manitowoc commented that the outdoor condensers of RCUs can more easily accommodate size increases than the condensers incorporated into IMH equipment. However, Manitowoc also noted that increasing the size of the condenser coil in order to improve efficiency would necessitate an increased level of refrigerant. Manitowoc stated that this could require the installation of a larger receiver in the ice-making head, which may be difficult due to size constraints. (Manitowoc, Public Meeting Transcript, No. 42 at p. 59)
Manitowoc added that increasing the size of the condenser while maintaining a constant evaporator size can also interfere with the ability of the ice machine to properly make ice over the full range of ambient conditions. Manitowoc stated that DOE's analysis is only concerned with performance at 90 °F air/70 °F water testing conditions, but that real ice makers have to work in air temperatures ranging from 50 to 110 °F and water temperatures from 40 to 90 °F. As air temperature drops, Manitowoc stated, unless special refrigerant management devices are employed, a larger condenser will be forced to store more refrigerant at a lower temperature. This will prevent batch type ice machines from being able to harvest ice at low ambient temperatures, according to Manitowoc. (Manitowoc, No. 54 at p. 2) Similarly, Scotsman commented that increasing the efficiency of the freeze cycle will lengthen the harvest process and minimize overall energy savings. (Scotsman, Public Meeting Transcript, No. 42 at pp. 59-60) Scotsman asserted that DOE's analysis of condenser surface area must include this impact on the batch harvest cycle. (Scotsman, No. 46 at p. 3)
Hoshizaki commented that manufacturers would need more time to evaluate the implications of using larger water-cooled condensers on a closed-loop system. Although larger condensers would increase the efficiency of heat transfer, Hoshizaki opined that this benefit must be compared with the increased final cost to the consumer as well as the potential need to increase cabinet size. (Hoshizaki, No. 53 at p. 2)
In response to Manitowoc's written comments, DOE has considered data obtained through testing of water-cooled units, as well as data provided by manufacturers on expected efficiency increases versus condenser growths.
DOE notes that the key concerns expressed in Hoshizaki's comment relate to the potential need to increase cabinet size and the concern about whether the larger condenser (and perhaps cabinet) is cost-justified. As discussed in section IV.C.d, DOE has considered a modest size increase for the ice-making head for some ice maker equipment classes. Answering the question of whether condenser size increase within these modest allowances for cabinet size increase is cost-effective is a key goal of the DOE analyses—the potential that the approach is not cost-effective is not a relevant argument for screening out this technology.
In response to Scotsman and Manitowoc's written comments, DOE conducted testing to assess the correlation of batch type ice maker efficiency level with condensing temperature and has used this information, which accounts for the increase in harvest energy use associated with lower condensing temperature, to adjust its analyses. DOE tested a water-cooled batch unit using different water-flow settings; the results are shown in Table IV.20. DOE notes that these test results indicate that there are energy benefits from increasing condenser area, even though harvest cycle energy use increases. The results show that the increase in harvest cycle energy use represents a loss of 15 percent of the gain that would have been achieved if harvest energy use had not increased. DOE used these test results to adjust the modeled harvest energy when condenser improvement such as size increase was applied as a design option. These analyses are described in chapter 5 of the NOPR TSD.
DOE inspected baseline and high-efficiency units, including condenser sizes typical of each. For equipment classes for which DOE inspected high-efficiency units, DOE considered maximum condenser sizes consistent with the inspected units. For equipment classes where DOE did not have such information, DOE considered maximum condenser sizes consistent with the range of chassis sizes of commercially available equipment of the given class and harvest capacity. DOE notes that none of the evaluated IMH or SCU equipment has receivers, thus indicating that they would not be needed for the range of condenser sizes DOE considered in its analysis for these equipment classes. DOE also considered whether a larger remote condenser would require installation of a larger receiver, and talked with receiver manufacturers about receiver sizing. DOE did not seek to increase receiver sizes for any of the models analyzed.
In response to comments by AHRI and Manitowoc, DOE studied the condensing temperatures of tested units to set limits for available efficiency improvement. DOE in its analyses considered only condenser changes that resulted in condensing temperatures within the range of those observed in the tested ice makers for comparable equipment classes (for instance DOE used different minimum condensing temperatures for air-cooled and water-cooled equipment). These analyses are described in chapter 5 of the NOPR TSD.
NPCC noted that many ice makers may be oversized for their particular applications, suggesting that there would be little compromise of customer utility if the capacity available for a given ice maker chassis size decreased as a result of design changes that increased their efficiency. (NPCC, Public Meeting Transcript, No. 42 at pp. 60-61)
Manitowoc countered that its customers are very aware of how much ice they need and that they consequently size machines for peak demand days, rather than average use. Manitowoc added that it is very important that customers not shut down on days with high demand, such as the 4th of July. (Manitowoc, Public Meeting Transcript, No. 42 at p. 63)
DOE did not investigate potential down-sizing of equipment, instead relying on information regarding commercially available units as the basis for consideration of what sizes are acceptable for given capacity levels.
Open-loop cooling systems use condenser cooling water only once before disposing of it, whereas closed-loop (single-pass) systems repeatedly recirculate cooling water. In closed loops, the water is cooled in a cooling tower and recirculated to accept heat from the automatic commercial ice maker condenser again. Alternatively, the water passes through another heat exchanger where the heat is removed and used in another piece of equipment, such as a space or water heater, before cycling back to the ice maker condenser. Although some condenser water may still be lost to evaporation in cooling towers, closed-loop systems still have negligible condenser water disposal or consumption compared to open-loop systems.
The Alliance expressed strong opposition to open-loop condenser water cooling for automatic commercial ice makers, arguing that such technology is obsolete and excessively wastes water and energy. The Alliance noted that more energy-efficient technologies such as air cooling, remote condensing, and closed-loop water-cooling systems have made single-pass water cooling unnecessary. Therefore, the Alliance urged DOE to disallow all ice makers that can be installed and operated with a single-pass cooling system. (Alliance, No. 45 at pp. 3-4)
DOE recognizes that open-loop water-cooling systems use significantly more water than other condenser cooling technologies. However, DOE determined after the Framework public meeting that its rulemaking authority extends only to the manufacturing of equipment and not to the installation or usage of equipment. Thus, DOE has no authority to mandate that dual-use water-cooled machines (those that can be used in either closed-loop or open-loop configurations) be used with closed-loop systems. Furthermore, DOE is not aware of any potential design requirements it could impose that would effectively prohibit open-loop cooling systems for water-cooled ice makers. Even if a design requirement could be effective in this regard, DOE can only adopt either a prescriptive design requirement or a performance standard for commercial equipment. (42 U.S.C. 6311(18)) The focus of this rulemaking is an equipment performance standard. Due to the nature
EPACT 2005 prescribes maximum condenser water use levels for water-cooled cube type automatic commercial ice makers. (42 U.S.C. 6313(d))
In this rulemaking, DOE considered using higher condenser water flow rates as a design option for water-cooled ice makers.
In chapter 2 of the preliminary TSD, DOE indicated that the ice maker standards primarily focus on energy use, and that DOE is not bound by EPCA to comprehensively evaluate and propose reductions in the maximum condenser water consumption levels, and likewise has the option to allow increases in condenser water use, if this is a cost-effective way to improve energy efficiency.
DOE did not analyze potential changes in condenser water use standards during the preliminary analysis. However, it did propose an approach for balancing energy use and condenser water use in the engineering analysis in a way that maintains the rulemaking's focus on energy use reduction while appropriately considering the cost implications of changing condenser water use. DOE proposed using appropriate representative values for water and energy costs, product lifetime, and discount rates to calculate a representative LCC for baseline and modified design configurations as part of the engineering analysis. In this way, the engineering analysis would develop a relationship between energy efficiency and manufacturing cost as is customary in engineering analyses (
AHRI commented that water-cooled ice makers are already efficient products and that reducing condenser water consumption could significantly increase their energy use. AHRI and Scotsman both cautioned that DOE must consider the impact that lower condensing temperatures could have on the harvest rate of batch type ice makers and ensure that product utility is not diminished by implementing new condenser water use standards. (AHRI, No. 49 at p. 4; Scotsman, Public Meeting Transcript, No. 42 at p. 70)
In the public meeting discussions, Manitowoc suggested that DOE consider decreasing the allowable condenser water use, which could be a more economical approach if water costs increase. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 70-72) However, Manitowoc also noted in its written comments that condenser water use is carefully managed to ensure that ice makers can harvest ice under worst-case conditions and maintain water velocities within specified limits in order to avoid erosion. Manitowoc expressed doubt about the ability of DOE's energy model to accurately predict the effects of these variables, and for this reason, Manitowoc strongly discouraged introducing condenser water use standards. (Manitowoc, No. 54 at pp. 3-4)
DOE stated that EPCA's anti-backsliding provision in section 325(o)(1), which lists specific products for which DOE is forbidden from prescribing amended standards that increase the maximum allowable water use, does not include ice makers. However, Earthjustice asserted that DOE lacks the authority to relax condenser water limits for water-cooled ice makers. Earthjustice argued that the failure of section 325(o)(1) to specifically call out ice maker condenser water use as a metric that is subject to the statute's prohibition against the relaxation of a standard is not determinative. On the contrary, Earthjustice maintained that the plain language of EPCA shows that Congress intended to apply the anti-backsliding provision to ice makers. Earthjustice commented that section 342(d)(4) requires DOE to adopt standards for ice-makers “at the maximum level that is technically feasible and economically justified, as provided in [section 325(o) and (p)].” (42 U.S.C. 6313(d)(4)) Earthjustice stated that, by referencing all of section 325(o), the statute pulls in each of the distinct provisions of that subsection, including, among other things, the anti-backsliding provision, the statutory factors governing economic justification, and the prohibition on adopting a standard that eliminates certain performance characteristics. By applying all of section 325(o) to ice-makers, section 342(d)(4) had already made the anti-backsliding provision applicable to condenser water use, according to Earthjustice. Finally, Earthjustice stated that even if DOE concludes that the plain language of EPCA is not clear on this point, the only reasonable interpretation is that Congress did not intend to grant DOE the authority to relax the condenser water use standards for ice makers. Earthjustice added that the anti-backsliding provision is one of EPCA's most powerful tools to improve the energy and water efficiency of appliances and commercial equipment, and Congress would presumably speak clearly if it intended to withhold its application to a specific product. (Earthjustice, No. 47 at pp. 4-5)
Scotsman commented that balancing condenser water use with energy use was a reasonable analytical approach. (Scotsman, No. 46 at p. 3) Scotsman added that including condenser water usage in the overall energy use of a machine would also impact continuous type ice machines by affecting ice hardness. (Scotsman, Public Meeting Transcript, No. 42 at p. 70)
The Alliance argued that water use and energy use cannot be compared on a simple price basis because of key differences between the two resources. While energy comes from multiple sources and is a commodity whose prices fluctuate based on supply and demand, fresh water is in limited supply, the Alliance stated. Hence, water prices are heavily regulated and based on the cost of treatment and delivery, which is less directly affected by supply and demand, according to the Alliance. Therefore, the Alliance recommended that DOE consider the marginal costs of alternative water sources, such as desalination, in its analyses to properly account for all
In response to Earthjustice's comment, DOE maintains its position from the preliminary analysis that the anti-backsliding provision of EPCA (42 U.S.C. 6313(d)(4)) does not apply to condenser water use in batch-type automatic commercial ice makers. While EPCA's anti-backsliding provision (42 U.S.C. 6295(o)) applies to consumer products, 42 U.S.C. 6313(d)(4) makes the backsliding provision applicable to automatic commercial ice makers. However, 42 U.S.C. Sec. 6295(o)(1) anti-backsliding provisions apply to water in only a limited set of residential appliances and fixtures. Under 42 U.S.C. Sec. 6295(o)(1), “the Secretary may not prescribe any amended standard which increases the maximum allowable energy use, or, in the case of showerheads, faucets, water closets, or urinals, water use, or decreases the minimum required energy efficiency, of a covered product.” This provision links automatic commercial ice makers to the energy efficiency anti-backsliding provision as a covered product, and does not include automatic commercial ice makers among the products covered by the water efficiency anti-backsliding provision. Thus, this section of EPCA prohibits DOE from amending any standard in such a way as to decrease minimum energy efficiency for any covered automatic commercial ice maker equipment class. It does not, however, prohibit an increase in water use in any products other than those enumerated in the statute, and nothing in 6313(d)(4) expands the specific list of equipment or appliances to which the water anti-backsliding applies. Therefore, an increase in condenser water use would not be considered backsliding under the statute. Nevertheless, the proposals do not include increases in condenser water use.
Noting that condenser water standards are already in place for batch type ice makers, DOE has decided to consider an increase in condenser water use as a design option to improve energy efficiency for all water-cooled ice makers. Acknowledging the concerns of stakeholders such as AHRI, Manitowoc, and Scotsman, DOE recognizes that such an approach must consider the cost-effectiveness of this design option based on the end-user's water cost. DOE does not believe that the contemplated changes would diminish product utility, because an increase in the maximum allowed condenser water use would increase the flexibility of manufacturers to meet the condenser water use standard. Manufacturers would obviously not be required to increase condenser water use, especially if such a design decision would negatively impact the energy use or harvest rate of their ice makers.
In response to Manitowoc's observation that water velocities must be maintained within specified limits in order to avoid erosion, DOE conducted an analysis to determine whether current levels of water use in water-cooled condensers are close to exceeding these limits. DOE has learned from manufacturers of water-cooled condensers that water flow rates generally should not exceed 3.5 gallons per minute per nominal ton of condenser cooling capacity (gpm per ton).
As the manufacturers and AHRI point out, DOE must be careful in the analysis of condenser water to ensure that the complex relationship between condenser water and machine energy usage are modeled correctly. However, balancing energy use and condenser water use following the approach outlined above greatly simplifies an otherwise highly complex, three-dimensional analysis of design options, condenser water use levels, and efficiency. This analysis approach helped DOE determine whether increasing condenser water limits could cost-effectively save electricity.
DOE tested three water-cooled ice makers with varying condensing water flow to evaluate the potential for energy savings and the cost-effectiveness of using this approach. The results of this evaluation for a batch type ice maker are shown in Table IV.21. The analysis assumed that in the field half of the ice makers would be used in open systems and half in closed-loop systems, which significantly reduce water flow, as documented in chapter 5 of the NOPR TSD.
The analysis shows that increasing condenser water flow is not a cost-effective way to reduce energy use. This was demonstrated also for the two continuous type ice makers that were tested. As a result, DOE did not comprehensively evaluate this approach for all water-cooled equipment classes in its engineering analysis. Additional details are available in chapter 5 of the NOPR TSD.
Scotsman commented that the high-EER compressors in DOE's analysis may not be feasible for ice makers, particularly batch type ice makers, in which liquid refrigerant can often enter the compressor during the harvest process. Scotsman noted that the design changes used by compressor manufacturers to improve EER can reduce reliability, for instance placing the compressor suction line closer to the suction intake within the shell, which can cause liquid refrigerant to impinge on the suction valve during harvest and rapidly lead to compressor failure.
In response to these comments, DOE consulted with manufacturers regarding which compressors are appropriate for ice makers. DOE removed from its analysis those compressors that manufacturers have indicated are unsuitable for use in ice makers. As part of the NOPR analyses, DOE also considered additional compressors of compressor lines that manufacturers indicated are acceptable. The impact of these changes in the analysis on the predicted potential efficiency improvement associated with use of higher efficiency compressors varied by equipment class. Additional details are available in chapter 5 of the NOPR TSD.
Manitowoc commented that the small size of the ice maker industry makes it difficult for ice maker manufacturers to implement new technologies or influence the component (
For the NOPR analyses, DOE has used design options that are commercially available. Many of these technologies are found in ice makers that were inspected, and a few are available from component manufacturers. DOE has taken care to ensure that those design options identified do apply to these products.
• For example, DOE has removed from its analysis any compressors that may potentially interfere with ice maker operation (based on their design).
• DOE has also included an option to increase chassis sizes (in order to grow internal components such as heat exchangers), but limited chassis growth design options to only cover the modest levels suggested by the available equipment offerings
Further information on DOE's analyses is contained in sections IV.D.4.e and IV.D.4.f.
In this rulemaking, DOE has adopted a combined efficiency level/design option/reverse engineering approach to developing cost-efficiency curves. To support this effort, DOE developed manufacturing cost models based heavily on reverse engineering of products to develop a baseline MPC. DOE estimated the energy use of different design configurations using an energy model whose input data was based on reverse engineering, automatic commercial ice maker performance ratings, and test data. DOE combined the manufacturing cost and energy modeling to develop cost-efficiency curves for automatic commercial ice maker equipment based on baseline-efficiency equipment selected to represent their equipment classes. Next, DOE derived manufacturer markups using publicly available automatic commercial ice maker industry financial data, in conjunction with manufacturer feedback. The markups were used to convert the MPC-based cost-efficiency curves into MSP-based curves. Details of these analyses developed for the preliminary analysis were presented in the preliminary analysis TSD and in a supplementary data publication posted on the rulemaking Web site.
Stakeholder comments regarding DOE's preliminary engineering analyses addressed the following broad areas:
1. Estimated costs in many cases were lower than manufacturers' actual costs.
2. Estimated efficiency benefits of many modeled design options were greater than the actual benefits, according to manufacturers' experience with equipment development.
3. DOE should validate its energy use model based on comparison with actual equipment test data.
4. DOE should validate its cost-efficiency analysis by investigating the relationship of efficiency with retail prices for ice makers.
5. The incremental costs in the engineering analysis should take into consideration the design, development, and testing costs associated with new designs.
These topics are addressed in greater detail in the sections below.
Manitowoc requested that DOE provide more information on the inputs and methodology behind calculating the MPCs for each efficiency level. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 76-77) Manitowoc, Scotsman, and AHRI all asserted that it is important for DOE to accurately assess the potential incremental costs associated with each efficiency level, since they will drive the decisions in this rulemaking. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 170-171 and No. 54 at p. 1; Scotsman, Public Meeting Transcript, No. 42 at p. 173; AHRI, No. 49 at p. 6)
Regarding the accuracy of DOE's cost model, Manitowoc commented that some of the incremental costs between efficiency levels were incorrect. Manitowoc added that, while it could not provide its bill of materials, it would be willing to give DOE guidance regarding the actual costs of implementing technology design changes at realistic volumes. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 80-81) Scotsman agreed with Manitowoc that the table of incremental costs was optimistic at best and added that changing one component in an ice maker will often require also changing other components, further affecting incremental costs. (Scotsman, Public Meeting Transcript, No. 42 at p. 85)
Specifically, Manitowoc, Scotsman, and AHRI each stated the belief that DOE has underestimated the incremental costs of its proposed design options. (Manitowoc, No. 54 at p. 1; Scotsman, No. 46 at p. 5; AHRI, No. 49 at p. 6) For example, DOE estimated that the incremental cost of using an electronically commutated motor (ECM) in place of a shaded pole motor would be $13, whereas Scotsman's supplier quoted an incremental cost of $35 for this same design option. Scotsman added that, because the ice maker industry is relatively low-volume, ice maker manufacturers face large cost premiums for component technologies. (Scotsman, No. 46 at p. 5) AHRI noted that DOE assumed that an 8 percent increase in compressor efficiency would cost only $9. However, AHRI asserted that most compressors currently used in ice makers are already mechanically optimized and could therefore achieve greater efficiency only by switching to permanent magnet motors, which would cost seven times more than DOE's incremental cost estimate. AHRI cautioned that DOE should not assume that information it derived for other rulemakings is automatically applicable to ice makers. AHRI also opined that DOE drastically underestimated the cost of increasing condenser surface area. (AHRI, No. 49 at p. 2) Finally, Manitowoc commented that DOE's cost
In response to Manitowoc's first comment, DOE has provided additional information correlating efficiency levels and design options in this NOPR and its accompanying TSD. The TSD details the design option changes and associated costs, calculated for each efficiency level for the equipment analyzed.
In response to the comments by Manitowoc, Scotsman, and AHRI, DOE had received very limited feedback from manufacturers regarding cost estimates to support its preliminary engineering analysis. During the NOPR phase of this rulemaking, DOE emphasized the need to obtain relevant information from stakeholders by extending the comment period by 40 days and welcoming comment on specific details presented in the TSD regarding technology options and costs. Moreover, DOE's contractor again worked directly with manufacturers under non-disclosure agreements in order to obtain additional cost information.
DOE has significantly revised its component cost estimates for the engineering analysis for the NOPR phase based on the additional information obtained, both in discussions with manufacturers and in stakeholder comments. DOE used the detailed feedback that it solicited from manufacturers to update its cost estimates for all ice maker components, significantly increasing its estimates of nearly all of these costs. Additional details on the adjusted component costs are available in chapter 5 of the NOPR TSD.
The energy consumption model calculates the energy consumption of automatic commercial ice makers in kilowatt-hours per 100 lb of ice based on detailed description of equipment design. The DOE analysis for a given equipment class and capacity applied the model for a variety of design configurations representing different performance levels. The analysis starts with a baseline design, subsequently assessing the differing energy consumption for incrementally more-efficient equipment designs that utilize increasing numbers of design options. The results of the energy consumption model are paired with the cost model results to produce the points on the cost-efficiency curves, which correspond to specific equipment configurations. After the publication of the preliminary analysis, DOE received numerous stakeholder comments regarding the methodology and results of the energy consumption model.
Manitowoc and Howe both commented that DOE's models significantly overstated the efficiency gains associated with many of the design options. (Howe, No. 51 at p. 3; Manitowoc, No. 54 at p. 2) As an example, Howe pointed out that using a more efficient fan may not have a significant impact on the overall efficiency of the ice maker, since the fan represents a small fraction of its overall energy use. (Howe, No. 51 at p. 3) Manitowoc added that its own tests on actual ice machines under controlled conditions resulted in lower performance gains than those predicted by the DOE models. (Manitowoc, No. 54 at p. 2)
Manitowoc commented that it would like to have more information on the models used in DOE's engineering analysis. In particular, Manitowoc stated that it would like to learn more about the FREEZE model, since it is difficult to model the process of freezing water into ice and even more difficult to model ice harvesting. Manitowoc noted that this model will drive DOE's estimation of energy efficiency and that it is important for manufacturers to understand the impacts of the model before new standards take effect, especially if new efficiency levels take manufacturers to technology levels far beyond their level of experience. (Manitowoc, Public Meeting Transcript, No. 42 at pp. 171-173)
Manitowoc also commented that the FREEZE model is limited by its inability to model the harvest portion of the batch cycle. Manitowoc stated that, although the harvest portion is shorter in duration than the freeze portion, it represents a significant fraction of energy consumption due to the higher energy input to the compressor and the additional energy required to cool the evaporator after each harvest. Manitowoc added that many changes that improve the freeze operation efficiency, such as increasing condenser area, also reduce harvest operation efficiency. Manitowoc expounded on this example by noting that the increased condenser surface area reduces the design temperature of the refrigerant, which results in lower energy available during the harvest cycle, which in turn results in slower harvest times and an overall increase in energy during the harvest cycle. Manitowoc commented that DOE's FREEZE model is unable to account for such behavior. (Manitowoc, No. 54 at pp. 1-2)
Scotsman and Hoshizaki both commented that the energy model will be incomplete until it has been validated with real test results of different technology design options. (Scotsman, Public Meeting Transcript, No. 42 at pp. 173-174) Hoshizaki asserted that DOE should not use the FREEZE model in the analyses until it has been validated. (Hoshizaki, No. 53 at p. 1)
Scotsman inquired whether DOE intends to validate its cost-efficiency model by implementing these design changes on actual machines and evaluating their subsequent energy performance. (Scotsman, Public Meeting Transcript, No. 42 at pp. 85-86)
In response to comments by Manitowoc, Howe, and Scotsman, DOE has made changes to the energy modeling based on feedback received from the manufacturers under non-disclosure agreements. To address concerns by Manitowoc that the FREEZE model did not adequately model the effects of increased condenser size on the harvesting energy, DOE also performed testing of a water-cooled condenser batch unit, and used the test data to develop a relationship between condensing temperatures and harvest energy. DOE did note that lower condensing temperatures did result in lower overall energy consumption, but higher harvest energy consumption.
Further information on DOE's engineering analysis and energy model adjustments is contained in sections IV.D.4.e and IV.D.4.f.
AHRI and Hoshizaki both questioned the accuracy of DOE's incremental cost-efficiency analysis. AHRI and Hoshizaki recommended that DOE validate it by comparing its results with actual retail prices. (AHRI, Public Meeting Transcript, No. 42 at pp. 78-80, 82-83, 174-175, and No. 49 at p. 6; Hoshizaki, Public Meeting Transcript, No. 42 at p. 84 and No. 53 at p. 1).
In response to AHRI's and Hoshizaki's request for cost validation, DOE prepared a price analysis for automatic commercial ice makers to evaluate the correlation of price with higher ice maker efficiency. DOE collected list price information from publicly available automatic commercial ice maker manufacturer price sheets for 470 ice makers. DOE collected other information relevant to the analysis appropriate sources, including equipment dimensions, harvest capacity, ENERGY STAR qualification, and energy use. For equipment classes for which there were data available for more than 20 ice makers, price and ice harvest rate were shown to have a strong linear correlation, with R-squared values ranging from 0.63 to 0.84. This result indicates that customers pay more for higher-capacity ice makers.
While an initial evaluation of price trends with efficiency suggested that prices are higher for higher efficiency ice makers, subsequent analysis suggests that this trend can be attributed to the trend for reduction in energy use for higher harvest capacity and the aforementioned relationship between price and harvest capacity. For the equipment classes for which there were sufficient ice makers to analyze, DOE determined the best-fit linear relationship predicting price as a function of ice harvest rate. DOE then evaluated the relationship between each ice maker's price differential (
Hoshizaki commented that DOE's incremental cost-efficiency analysis must include all aspects of design changes, including the additional design time, testing, and increased labor, when calculating incremental costs. Hoshizaki added that manufacturers could help DOE by reviewing the actual costs associated with redesigning their machines to meet the 2010 DOE energy standards as well as ENERGY STAR standards. Hoshizaki expressed its willingness to collaborate with DOE and AHRI. (Hoshizaki, No. 53 at p. 3)
DOE incorporates the cost of additional design time, testing, labor, and tooling into its manufacturer impacts analysis, as described in section IV.J. During the NOPR analyses, DOE and its contractors contacted manufacturers and obtained related costs under non-disclosure agreements. More information on these analyses is available in section IV.J.
In response to comments from Scotsman and Hoshizaki about the validity of the energy model, DOE investigated using an empirical efficiency level approach for the engineering analysis rather than the approach combining energy modeling and manufacturing cost modeling that was used in the preliminary analysis. DOE performed this analysis for eight batch equipment classes and three continuous equipment classes. The alternative approach was to develop the cost-efficiency curves based on rated or tested automatic commercial ice makers energy use levels and costs estimated using the manufacturing cost model with updates from manufacturer discussions, as described in section IV.D.4.a. To support the empirical analysis, DOE purchased and tested 20 additional ice makers, giving DOE a total of 39 ice makers for evaluation.
Table IV.23 shows the resulting costs for equipment classes that were analyzed using the empirical approach and the energy modeling approach. The incremental cost of reaching a 15 percent below baseline efficiency level is listed below. In 7 out of 9 equipment classes, the energy modeling approach result was far more conservative (
DOE compared the results of the empirical analysis and the results of the energy modeling, and concluded that the energy modeling results provided a better and more consistent forecast in the ability of manufacturers to reach certain efficiency levels. While the analyses rigorously account for the cost differences in key components that affect energy use, the costs to achieve higher efficiency levels range from higher than the NOPR estimates to very low to negative. DOE is concerned that, while the calculated cost differences may accurately reflect actual cost differences between the chosen pairs of models, the results may be very dependent on the details associated with the specific model selections, and may vary depending on the units that are selected. DOE's empirical analysis does indicate that the energy modeling approach does not underestimate the cost-efficiency steps required to reach higher efficiencies. DOE believes that careful calibration of the energy model combined with reassessment of the cost model can result in accurate cost-efficiency curves.
Thus, DOE decided to proceed with the energy modeling approach as the main basis for the engineering analysis. DOE has addressed many of the stakeholder comments as it updated the energy modeling analysis. The details of the energy modeling approach are described in the next section, section IV.D.4.f.
Additional details and results of the empirical analysis are available in chapter 5 of the NOPR TSD. DOE believes that the results of the empirical analyses support the results of DOE's design option analysis.
After investigation of and rejection of an empirical efficiency level analysis approach, DOE instead developed the NOPR engineering analysis by updating the preliminary engineering analysis. This included making adjustments to the manufacturing cost model as described in section IV.D.4.a. It also included adjustments to energy modeling.
The design options considered in the analysis changed, as the discussion of the updated screening analysis details in section IV.C.
DOE also made several changes to the FREEZE energy model used to estimate energy use of different ice maker design configurations. To address the concerns raised by Manitowoc and Howe, DOE adjusted its energy models based on input received in manufacturers' public and confidential comments and discussions DOE's contractor conducted under non-disclosure agreements. These changes included:
• Adjustment of the compressor coefficients for batch type ice makers;
• using data from tests of ice makers to model the increase of harvest energy as condensing temperature decreases for batch type ice makers;
• developing an approach based on test data to determine the condensing temperature reductions associated with use of larger water-cooled condensers;
• limiting adjustments to the potable water use of batch products to a minimum of 20 gallons per 100 lb (or the starting potable water use level, if lower)
• incorporating energy use reduction for drain water heat exchangers used in batch equipment.
Finally, for the max-tech design options that extended beyond what was typically found in commercially available products (such as permanent magnet motors and drain water heat exchangers) that could not be calibrated against existing units, DOE relied on testing and literature to properly account for the energy savings of these units.
For drain water heat exchangers, DOE performed testing of a batch type ice maker with a commercially available drain water heat exchanger, and used the test results to calibrate the energy savings obtained from this technology for each equipment class where it was applied.
DOE used motor efficiency ratings discussed in the preliminary analysis and verified with stakeholders to scale the motor use of each component using permanent magnet motors. During the NOPR analyses, DOE's energy model was calibrated to properly account for the energy consumption of each component, and for energy reductions resulting in jumps to PSC technologies. Increases in the efficiency of the motor components can then be expressed as reductions in the energy consumption of these components.
DOE calibrated the efficiency gains calculated by the energy model against the design options and test results gathered during the empirical analysis investigation. DOE used this comparison to determine the suite of design options that should be found at the appropriate high-efficiency level, and calibrated the results of the energy against the inspected results.
For example, DOE inspected a pair of IMH-A-Small-B automatic commercial ice makers with measured efficiency levels of 2.2 percent below baseline and 17.5 percent below baseline, and noted the following changes between units:
• Increases in both the evaporator face area and condenser volume, and an increase in the chassis size to accommodate these growths,
• an increase in condenser fan size and a change from an SPM motor to a PSC motor, and
• an increase in compressor EER.
In the energy model, DOE separated out each of the different design options and considered separately, ordering them in order of cost-efficiency. For this equipment class, DOE had the following design options to increase efficiency from baseline to 23.5 percent below baseline, as shown in Table IV.24.
In some instances, DOE considered slightly different design options, especially when DOE's analysis found that more efficient compressor options were available. For example, the maximum compressor EER used in the energy modeling analysis was more efficient than the inspected unit compressor EER. This is the reason this suite of design options reaches higher efficiencies. DOE did not consider chassis sizes larger than those available on the market.
DOE believes that these changes help ensure that the energy model results accurately reflect technology behavior in the market. Further details on the analyses are available in chapter 5 of the NOPR TSD.
DOE applies multipliers called “markups” to the MSP to calculate the customer purchase price of the analyzed equipment. These markups are in addition to the manufacturer markup (discussed in section IV.D.4) and are intended to reflect the cost and profit margins associated with the distribution and sales of the equipment between the manufacturer and customer. DOE identified three major distribution channels for automatic commercial ice makers, and markup values were calculated for each distribution channel based on industry financial data. Table IV.25 shows the three distribution
In general, DOE has found that markup values vary over a wide range based on general economic outlook, manufacturer brand value, inventory levels, manufacturer rebates to distributors based on sales volume, newer versions of the same equipment model introduced into the market by the manufacturers, and availability of cheaper or more technologically advanced alternatives. Based on market data, DOE divided distributor costs into (1) direct cost of equipment sales; (2) labor expenses; (3) occupancy expenses; (4) other operating expenses (such as depreciation, advertising, and insurance); and (5) profit. DOE assumed that, for higher efficiency equipment only, the “other operating costs” and “profit” scale with MSP, while the remaining costs stay constant irrespective of equipment efficiency level. Thus, DOE applied a baseline markup through which all estimated distribution costs are collected as part of the total baseline equipment cost, and the baseline markups were applied as multipliers only to the baseline MSP. Incremental markups were applied as multipliers only to the MSP increments (of higher efficiency equipment compared to baseline) and not to the entire MSP. Taken together the two markups are consistent with economic behavior in a competitive market—the participants are only able to recover costs and a reasonable profit level.
DOE received a number of comments regarding markups after the publication of the preliminary analysis.
AHRI stated that equipment markups often result in retail prices that are lower than what is observed in the market place, and stated that DOE should supplement its analysis with a survey or retail sale prices. (AHRI, No. 49 at pp. 4-5) Scotsman suggested reviewing equipment pricing on the internet because many ice makers are available online. (Scotsman, No. 46 at p. 5)
Scotsman stated that the national account chain is not accurate. Scotsman commented that the national account distribution chain resembles the wholesaler distribution chain, because an equipment supplier is part of the process. The supplier may contract directly with the customer but equipment still goes through another party, according to Scotsman. (Scotsman, No. 42 at p. 97) Manitowoc agreed with Scotsman that the national accounts chain is misrepresented, and actually includes a third party to do installation, repair, and maintenance. (Manitowoc, No. 42 at pp. 99-100)
Manitowoc stated that mechanical contractors are typically not part of the distribution chain. Manitowoc indicated dealers may in fact provide those services, but the model is a little different from the model presented. (Manitowoc, No. 42 at p. 102-3)
Hoshizaki agreed with the analysis of distribution channels. (Hoshizaki, No. 53 at p. 2) Manitowoc suggested another distribution channel exists: rather than a sale to an end-user, the dealer leases it to the customer. (Manitowoc, No. 42 at p. 98) Manitowoc was of the opinion that whether the equipment was sold or leased to the customer, the end result would be that the ultimate equipment price would not be affected. (Manitowoc, No. 42 at p. 99)
Manitowoc questioned the basic methodology of using a base and incremental markup. Manitowoc stated that if it changed a product, it would expect the same gross margin on the incremental cost as on the base. (Manitowoc, No. 42 at p. 104) Manitowoc stated that entities in the distribution chain take the manufacturer's list price and add a markup. Manitowoc stated that by using the incremental markup, DOE is understating the impact in the market place of adding additional costs to raise the efficiency level, and that is not what happens in the market, according to Manitowoc. (Manitowoc, No. 42 at p. 105) Manitowoc stated that the incremental markup should be the same as the baseline markup and that it would be unreasonable to expect that vendors would earn a lower margin on additional costs associated with complying by the increased minimum efficiency regulations. (Manitowoc, No. 54 at p. 3)
With regard to the AHRI, Scotsman, and Manitowoc comments related to retail prices surveys or studies to determine if DOE was underestimating prices, DOE performed a market price survey, reported earlier in the engineering section IV.D.4.c. Previously DOE has not performed retail price surveys, believing that scatter in the data—particularly when internet and non-internet prices are co-mingled—would cause surveys to provide data of poor value or usefulness. The results of the retail price survey performed for the engineering analysis supports this belief.
With regard to the comment that mechanical contractors are typically not part of the distribution chain, DOE is using mechanical contractor cost information to model a three-party distribution channel. Available Census Bureau data as well as comments received at the Framework public meeting indicates that a three-party distribution channel is common. At present the mechanical contractor cost data is the best information available for quantifying the local contractor portion of the three-party channel, and DOE used this data for developing costs contained in this notice. DOE requests specific data or data sources to better categorize the third party costs attributable to local dealers or contractors.
The Scotsman and Manitowoc comments about the national account chain being misrepresented indicate that the national account channel is basically the same as the wholesaler
With respect to the comments questioning the use of an incremental markup, DOE believes that there is likely an inaccurate comparison taking place. In competitive markets, such as the automatic commercial ice maker market, the participants are expected to be able to recover costs and a reasonable profit, which is what the markups designed and used by participants would be expected to do. In the DOE analysis, the baseline markup has been calculated to recover all currently existing overhead expenses with baseline equipment costs. DOE's analysis focuses on changes. Profit margin and other costs that change as MSP changes were assigned to incremental markups. Most overhead costs were allocated to the base markup because DOE does not expect these costs to change because of MSP changes brought on by efficiency standards. DOE developed the baseline and incremental markup methodology to ensure all overhead costs are fully collected and a reasonable profit margin is received and to identify costs that change, and apply such to the incremental MSP in the form of incremental markups.
For the preliminary analysis and for the NOPR, DOE estimated energy usage for use in the LCC and NIA models based on the kWh/100 lb ice and gal/100 lb ice values developed in the engineering analysis in combination with other assumptions. In the preliminary analysis, DOE assumed that ice makers on average are used to produce one-half of the ice the machines could produce (
Several stakeholders agreed with the 50 percent capacity factor being reasonable. Scotsman stated that the 50 percent utilization factor is relatively close, given the wide spectrum that exists based on seasonality and installation location. (Scotsman, Public Meeting Transcript, No. 42 at p. 108) AHRI stated that on average, across all applications and seasons, the 50 percent utilization factor assumed by DOE is appropriate. (AHRI, No. 49 at p. 5) Manitowoc agreed that 50 percent utilization is a good number to use. (Manitowoc, Public Meeting Transcript, No. 42 at p. 110) Hoshizaki, on the other hand, thought 50 percent was on the low side for the industry, and some business types, like 24-hour restaurants, might have much higher usage factors. (Hoshizaki, Public Meeting Transcript, No. 42 at p. 111) NPCC expressed a desire to have information made available to determine if there is an equipment class relationship between the duty cycles and the business type, and whether duty cycle is related to the equipment class and/or the product capacity. NPCC believed that this may determine whether one is more cost-effective to pursue than another. (NPCC, Public Meeting Transcript, No. 42 at p. 111)
For the NOPR, DOE has continued to utilize a 50 percent capacity factor, as most commenters believed it to be a reasonable number and DOE did not receive utilization data in the comments that would lead it to consider alternative capacity factors in the analysis. In response to the Hoshizaki comment and in agreement with the NPCC comment, DOE requests additional information about reasonable values that could be used to vary the assumption by business type.
Several stakeholders commented on the assumption of an open-loop installation for water-cooled condensers. Scotsman commented that the majority of ice makers are installed in open-loop configurations. Scotsman stated that in some business types like hotels or casinos, there will typically be cooling towers and recirculation systems that the ice maker can tap into. In smaller locations without that type of a resource, it would typically be open loop, according to Scotsman. (Scotsman, Public Meeting Transcript, No. 42 at pp. 108-109) Scotsman added that single-pass configuration provides a worst-case energy use, and is appropriate for this analysis. (Scotsman, No. 46 at p. 3) Manitowoc stated that it only knows of installations in casinos or other large projects where ice makers are installed on closed loops, and suspects that most historical installations are open loop. (Manitowoc, No. 42 at p. 110)
NEEA recommended that DOE investigate the market share of automatic commercial ice makers with single-pass condensers, because they use substantially more water than those with other condenser configurations. (NEEA, Public Meeting Transcript, No, 42 at pp. 165-166) NPCC stated that some jurisdictions do not permit open-loop installations because of water usage. (NPCC, Public Meeting Transcript, No. 42 at pp. 109-110)
Hoshizaki suggested placing water-cooled units in closed-loop systems. (Hoshizaki, No. 42 at p. 110) Hoshizaki stated that, in certain areas, water-cooled condensers could be the most effective form of condensing. (Hoshizaki, No. 53 at p. 2)
DOE agrees with Hoshizaki's comment that water-cooled condensers can be a cost-effective form of condensing. DOE does not envision promulgating any rule that would eliminate water-cooled condensers. Since DOE's regulatory authority relates to the efficiency of equipment manufactured or sold in the U.S. but not to how equipment is installed or used, DOE does not plan to promulgate rules mandating use of closed loops. DOE is not proposing to perform the research suggested by NEEA into the prevalence of open- versus closed-loop installations. It is always DOE's objective to model energy usage as accurately as possible, so DOE requests stakeholder assistance in quantifying the impact of local regulations such as any local regulation potentially forbidding an open-loop installation. Scotsman and Manitowoc stated that, historically, most installations were likely open-loop, but the regulations discussed by NPCC would argue that in the future such is less likely to be true. DOE's analyses to date have not included design options that would change condenser water usage, a fact that means the question of modeling condenser water in the LCC models condenser water usage as open- or closed-loop impacts the absolute value of life-cycle costs and total national costs of ownership and operation, but not LCC savings or increases/decreases in NPV. Given that Scotsman and Manitowoc believe that historically most installations have likely been open loop, DOE chose to continue to model water usage as an open-loop (or single-pass) system.
In response to the requirements of EPCA in (42 U.S.C. 6295(o)(2)(B)(i) and 6313(d)(4)), DOE conducts LCC and PBP analysis to evaluate the economic impacts of potential amended energy conservation standards on individual commercial customers—that is, buyers of the equipment. This section describes
LCC is defined as the total customer cost over the lifetime of the equipment, and consists of installed cost (purchase and installation costs) and operating costs (maintenance, repair, water,
The installed cost of equipment to a customer is the sum of the equipment purchase price and installation costs. The purchase price includes MPC, to which a manufacturer markup (which is assumed to include at least a first level of outbound freight cost) is applied to obtain the MSP. This value is calculated as part of the engineering analysis (chapter 5 of the NOPR TSD). DOE then applies additional markups to the equipment to account for the costs associated with the distribution channels for the particular type of equipment (chapter 6 of the NOPR TSD). Installation costs are varied by State depending on the prevailing labor rates.
Operating costs for automatic commercial ice makers are the sum of maintenance costs, repair costs, water, and energy costs. These costs are incurred over the life of the equipment and therefore are discounted to the base year (2018, which is the proposed effective date of the amended standards that will be established as part of this rulemaking). The sum of the installed cost and the operating cost, discounted to reflect the present value, is termed the life-cycle cost or LCC.
Generally, customers incur higher installed costs when they purchase higher efficiency equipment, and these cost increments will be partially or wholly offset by savings in the operating costs over the lifetime of the equipment. Usually, the savings in operating costs are due to savings in energy costs because higher efficiency equipment uses less energy over the lifetime of the equipment. Often, the LCC of higher efficiency equipment is lower compared to lower-efficiency equipment.
The PBP of higher efficiency equipment is obtained by dividing the increase in the installed cost by the decrease in annual operating cost. For this calculation, DOE uses the first-year operating cost decreases as the estimate of the decrease in operating cost, noting that some of the repair and maintenance costs used in the analysis are annualized estimates of costs. DOE calculates a PBP for each efficiency level of each equipment class. In addition to the energy costs (calculated using the electricity price forecast for the first year), the first-year operating costs also include annualized maintenance and repair costs.
Apart from MSP, installation costs, and maintenance and repair costs, other important inputs for the LCC analysis are markups and sales tax, equipment energy consumption, electricity prices and future price trends, expected equipment lifetime, and discount rates.
As part of the engineering analysis, design option levels were ordered based on increasing efficiency (decreased energy and water consumption) and increasing MSP values. DOE developed four to seven energy use levels for each equipment class, henceforth referred to as “efficiency levels,” through the analysis of engineering design options. For all equipment classes, efficiency levels were set at specific intervals—
The base efficiency level (level 1) in each equipment class is the least efficient and the least expensive equipment in that class. The higher efficiency levels (level 2 and higher) exhibit progressive increases in efficiency and cost with the highest efficiency level corresponding to the max-tech level. LCC savings and PBP are calculated for each selected efficiency level of each equipment class.
Many inputs for the LCC analysis are estimated from the best available data in the market, and in some cases the inputs are generally accepted values within the industry. In general, each input value has a range of values associated with it. While single representative values for each input may yield an output that is the most probable value for that output, such an analysis does not give the general range of values that can be attributed to a particular output value. Therefore, DOE carried out the LCC analysis in the form of Monte Carlo simulations
LCC savings and PBP are calculated by comparing the installed costs and LCC values of standards-case scenarios against those of base-case scenarios. The base-case scenario is the scenario in which equipment is assumed to be purchased by customers in the absence of the proposed energy conservation standards. Standards-case scenarios are scenarios in which equipment is assumed to be purchased by customers after the amended energy conservation standards, determined as part of the current rulemaking, go into effect. The number of standards-case scenarios for an equipment class is equal to one less than the total number of efficiency levels in that equipment class because each efficiency level above efficiency level 1 represents a potential amended standard. Usually, the equipment available in the market will have a distribution of efficiencies. Therefore, for both base-case and standards-case scenarios, in the LCC analysis, DOE assumed a distribution of efficiencies in the market, and the distribution was assumed to be spread across all efficiency levels in the LCC analysis (see NOPR TSD chapter 10).
Recognizing that different types of businesses and industries that use automatic commercial ice makers face different energy prices, and apply different discount rates to purchase decisions, DOE analyzed variability and uncertainty in the LCC and PBP results by performing the LCC and PBP calculations for seven types of businesses: (1) Health care; (2) lodging; (3) foodservice; (4) retail; (5) education; (6) food sales; and (7) offices. Different types of businesses face different energy prices and also exhibit differing discount rates that they apply to purchase decisions.
Expected equipment lifetime is another input for which it is inappropriate to use a single value for each equipment class. Therefore, DOE assumed a distribution of equipment lifetimes that are defined by Weibull survival functions.
Equipment lifetime is a key input for the LCC and PBP analysis. For automatic commercial ice maker equipment, there is a general consensus among industry stakeholders that the typical equipment lifetime is approximately 7 to 10 years with an average of 8.5 years. There was no data or comment to suggest that lifetimes are unique to each equipment class. Therefore, DOE assumed a distribution of equipment lifetimes that is defined by Weibull
Another factor influencing the LCC analysis is the State in which the automatic commercial ice maker is installed. Inputs that vary based on this factor include installation costs, water and energy prices, and sales tax (plus the associated distribution chain markups). At the national level, the spreadsheets explicitly modeled variability in the model inputs for water price, electricity price, and markups using probability distributions based on the relative populations in all States.
Detailed descriptions of the methodology used for the LCC analysis, along with a discussion of inputs and results, are presented in chapter 8 and appendices 8A and 8B of the NOPR TSD.
To calculate customer equipment costs, DOE multiplied the MSPs developed in the engineering analysis by the distribution channel markups, described in section IV.E. DOE applied baseline markups to baseline MSPs and incremental markups to the MSP increments associated with higher efficiency levels.
In the preliminary analysis, DOE developed a projection of price trends for automatic commercial ice maker equipment, indicating that based on historical price trends the MSP would be projected to decline by 0.4 percent from the 2012 estimation of MSP values through the 2018 assumed start date of new or amended standards. The preliminary analysis also indicated an approximately 1.6 percent decline from the MSP values estimated in 2012 to the end of the 30-year NIA analysis period used in the preliminary analysis. Price trends generated considerable discussion during the LCC presentation at the February 2012 preliminary analysis public meeting (and nearly all comments specific to the NIA were concerning price trends).
Scotsman stated that it typically sees some increase in costs and that it tries to recapture at least some of the increased cost in the form of price increases and usually cannot recover all of it. Scotsman stated that it does not expect to see prices going down over the years and does not think it makes a lot of sense. Scotsman added that for household refrigerators and other industries, much of the price decrease that has been seen over the years is offshored manufacturing. The automatic commercial ice maker manufacturers do not have the scale to consider doing that, according to Scotsman. (Scotsman, Public Meeting Transcript, No. 42 at pp. 127-128) Scotsman analyzed the historical shipments data and provided graphs showing how different the forecast would be if a different time period was selected. Scotsman suggested that a long-term growth trend of 1.5 percent is most realistic. (Scotsman, No. 46 at pp. 6-7)
NRDC stated that price learning is theoretically expected and empirically demonstrated, and that it supported DOE's incorporation of price learning in the rulemaking. (NRDC, No. 48 at p. 2)
AHRI urged DOE to assume that price learning is zero, or in other words, to hold MSP constant. AHRI stated that it had performed an analysis of the data used by DOE and that it believed that the data did not support an assumption of price learning greater than zero. (AHRI, No. 49 at p. 5 and exhibit A)
Manitowoc stated that there is no real basis to expect that the manufacturing costs of ice machines will decrease in the future due to efficiency gains in production because the ice machine designs are mature and the manufacturing processes are stable. Manitowoc added that the increase in costs associated with design options is only due to higher cost components or higher cost material employed and that the annual production volumes do not allow for further investment in automation of the manufacturing processes beyond what is already in place. (Manitowoc, No. 54 at p. 4)
As is customary between the preliminary analysis and the NOPR phases of a rulemaking, DOE re-examined the data available and updated the analyses, in this specific instance, the price trend analysis. At a high level, DOE agrees with the NRDC comment that evidence indicates price learning is theoretically expected. In response to the AHRI, Manitowoc, and Scotsman comments that the data do not support the price trends, DOE re-examined the data used in the analysis, and re-analyzed price trends with updated data. In the preliminary analysis, DOE used a Producer Price Index (PPI) that included air-conditioning, refrigeration, and forced air heating equipment. For the NOPR, DOE was able to identify a PPI that was a subset of the PPI used for the preliminary analysis. The subset includes only commercial refrigeration and related equipment, and excludes unrelated equipment. Using this PPI for the automatic commercial ice maker price trends analysis yields a price decline of roughly 1.6 percent over the period of 2012 (the year for which MSP was estimated) through 2047.
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the equipment. The installation costs may vary from one equipment class to another, but they typically do not vary among efficiency levels within an equipment class. Most automatic commercial ice makers are installed in fairly standard configurations. For its preliminary analysis, DOE tentatively concluded that the engineering design options do not impact the installation cost within an equipment class. DOE therefore assumed that the installation cost for automatic commercial ice makers does not vary among efficiency levels within an equipment class. Costs that do not vary with efficiency levels do not impact the LCC, PBP, or NIA results. In the preliminary analysis, DOE estimated the installation cost as a fixed percentage of the total MSP for the baseline efficiency level for a given equipment class, set at 10 percent.
Manitowoc agreed with DOE's assumption that installation costs generally would be unaffected by moving to the higher efficiency level. However, Manitowoc pointed out that some efficiency differences may cause variation in installation costs. Manitowoc further explained that many remote condensers require a crane for installation; therefore, bigger condensers of automatic commercial ice maker equipment with higher efficiency levels might result in higher rental and labor costs associated with the installation. (Manitowoc, Public Meeting Transcript, No. 42 at p. 136) In its written comments to DOE, Manitowoc further clarified that higher efficiency equipment would not incur additional installation costs unless the size of the equipment increases in such a way as to exceed the industry norms. (Manitowoc, No. 54 at p. 4) However, Hoshizaki indicated installation costs will increase with higher levels of energy efficiency due to special installation requirements for the new machine and possible changes to the structure that might be required. Furthermore, AHRI commented that it is incorrect for DOE to assume that changes in installation will be negligible for more-efficient equipment. (AHRI, No. 49 at p. 5)
Scotsman pointed out that if the technology were assumed to involve a drain water heat exchange, the installation costs would increase. (Scotsman, No. 46 at p. 3)
In responses to the comments above, DOE further evaluated the costs associated with installation and revised the installation cost estimation methods. For the NOPR, DOE estimated material and labor cost to install equipment based on RS Means cost estimation data
In response to Manitowoc's comment that greater equipment size might result in higher rental and labor costs, DOE notes that while the initial decision to avoid equipment size increases in the engineering analysis was eliminated, DOE attempted to minimize equipment size increases. Thus, proposed standard levels should not add significantly to labor and crane rental costs. Nor does DOE believe the size increases would require structural changes as hypothesized by Hoshizaki. In response to the Manitowoc and Scotsman comments about drain water heat exchanger installation costs, DOE notes the promotional material of drain water heat exchanger manufacturers indicate the units can be installed with four additional water attachments, a level of effort that would likely not add to the cost of installations. Finally, in response to Hoshizaki's general statement that higher efficiency levels will impose specialized installation requirements, a review of the design options included in the DOE engineering analysis did not reveal any options likely to impose specific cost increases. To better respond to the Hoshizaki comment, DOE requests specificity—which design options will impose increases in installation costs and what would the magnitude of such cost increases be?
The repair cost is the average annual cost to the customer for replacing or repairing components in the automatic commercial ice maker that have failed. In the preliminary analysis, DOE approximated the repair cost as a 3-percent fixed percentage of the total baseline MSP for each equipment class and assumed that repair costs were constant within an equipment class for all efficiency levels.
Maintenance costs are associated with maintaining the proper operation of the equipment. The maintenance cost does not include the costs associated with the replacement or repair of components that have failed, which are included as repair costs. In the preliminary analysis, DOE applied a 3-percent preventative maintenance cost that remains constant across all equipment efficiency levels because data were not available to indicate how maintenance costs vary with equipment levels.
Scotsman stated that, in general, whenever new technology is introduced, failure rates increase. Scotsman stated that when the failures occur during the warranty period, the cost falls on manufacturers. Ice makers stress components in ways that they are not stressed in steady-state machines, according to Scotsman, so even with well-known technologies it is not known how their failure rates will fare in ice makers. In addition, Scotsman commented that if the technology was assumed to involve a drain water heat exchanger, the maintenance cost would increase. (Scotsman, No. 46 at pp. 3-4) Likewise, Hoshizaki stated that repair costs are relative to each machine and that it is difficult to compute a standard average. Manufacturers are still working to analyze the effects of the 2010 standards on repair costs, according to Hoshizaki. (Hoshizaki, No. 46 at pp. 3-4)
Manitowoc commented that the repair costs will be affected by the efficiency levels. Manitowoc stated that is has specific concerns about some components such as motors. Manitowoc pointed out that ECM motors might enhance the energy efficiencies, but these motors are probably less reliable than standard permanent split capacitor motors because ECM motors have more parts. Manitowoc further stated that, in general, more parts increase the chances that a component will fail, which in turn potentially increases the repair costs. (Manitowoc, Public Meeting Transcript, No. 42 at p. 136) In addition, Scotsman stated that modeling repair cost as a percentage of baseline costs would understate repair cost. Also using the example of an ECM fan motor, Scotsman explained that ECM motor has an incremental cost of $35 to install; however, when it needs to be replaced, it is considerably more costly than the replacement of the motors that are currently used on the market. Additionally, Scotsman also noted the ECM fan motor has more parts than the current motors that are commonly applied in the market, making it likely to fail more often. Therefore, according to Scotsman, ECM fan motors might require higher average annual repair costs than current motors used in the baseline units. (Scotsman, No. 46 at pp. 3-4) Hoshizaki pointed out higher water and energy efficiency level may increase maintenance costs. Hoshizaki elaborated that equipment with lower water usage and improved electrical efficiencies might need more frequent maintenance such as cleaning. (Hoshizaki, No. 53 at p. 2)
In addition, Howe commented on the impact of new standards on repairing and maintenance costs. Howe stated that the modification of new ice makers will cause increased repair and maintenance costs due to the need to educate service personnel. The percentage of the baseline costs will increase, according to Howe. (Howe, No. 51 at p. 4)
In response to these comments, DOE evaluated how repair and maintenance costs were estimated and revised the methodology. For repair costs, DOE examined the major components of ice makers and identified expected failure rates for each component. For those components for which available information indicates a failure might occur within the expected 8.5-year equipment life, DOE estimated repair or replacement costs. Under this methodology, repair and replacement costs are based on the original
DOE's revision to the repair cost methodology is consistent with the Manitowoc, Hoshizaki, Scotsman, and Howe comments that repair costs should increase with efficiency level. Consistent with the Manitowoc and Scotsman comments, DOE assumed that ECM fan motors would increase repair costs relative to the baseline. In response to Scotsman's comments about drain water heat exchangers, DOE notes that manufacturer literature indicates an expected useful life greater than 8.5 years, so no replacement was assumed for this component.
In the NOPR analyses, DOE estimated material and labor costs for preventative maintenance based on RS Means cost estimation data and on telephone conservations with contractors. DOE assumed maintenance cost would remain constant for all efficiency levels within an equipment class. In response to Hoshizaki's comment about the impact of reduced water usage on maintenance, the DOE analyses for 7 of 12 primary equipment classes did not involve changes to water usage. In the remaining 5 (batch) equipment classes, DOE's analysis did not assume potable water usage would be reduced below 20 gallons per 100 lb ice—a level manufacturers indicated was a point below which maintenance costs would increase. (Scotsman, Public Meeting Transcript, No. 42 at p. 64; Manitowoc, Public Meeting Transcript, No. 42 at p. 65) Thus, for the NOPR, DOE assumes that maintenance costs will not vary by efficiency level.
Chapter 7 of the NOPR TSD details DOE's analysis of annual energy and water usage at various efficiency levels of automatic commercial ice makers. Annual energy and water consumption inputs by automatic commercial ice maker equipment class are based on the engineering analysis estimates of kilowatt-hours of electricity per 100 lb ice and gallons of water per 100 lb ice, translated to annual kilowatt-hours and gallons in the energy and water use analysis (chapter 7 of the NOPR TSD). The development of energy and water usage inputs is discussed in section IV.G.6 along with public input and DOE's response to the public input.
DOE calculated average commercial electricity prices using the EIA Form EIA-826 data obtained online from the “Database: Sales (consumption), revenue, prices & customers” Web page.
To estimate energy prices in future years for the preliminary analysis TSD, DOE multiplied the average regional energy prices described above by the forecast of annual average commercial energy price indices developed in the Reference Case from
To estimate water prices in future years for the preliminary analysis TSD, DOE used price data from the 2008,
During the public meeting and in written comments, stakeholders commented on the water prices DOE used in its LCC analysis. NPCC stated that water and wastewater price escalation has been systematically higher than the CPI. Further, NPCC pointed out that EPA's water-related regulations governed by the Clean Water Act might level out the escalation rates once the regulations' requirements were satisfied, even though NPCC does not anticipate the escalation rates will diminish much. Given the impact of EPA's latest water-related regulations was not completed, NPCC then raised the question whether DOE should use both a higher escalation rate and CPI in its analysis. NPCC then suggested using a higher escalated rate in the analysis for a short-run period until the effective date of EPA's latest water-related regulations and move to the CPI for the longer term analysis starting with the effective date of EPA's relevant regulations. (NPCC, Public Meeting Transcript, No, 42 at pp. 132-134) In addition, the Alliance argued that water use and energy use cannot be compared on a simple price basis because of key differences between the two resources. The Alliance stated that, first, energy comes from multiple sources and is a commodity whose prices fluctuate based on supply and demand. Freshwater, on the other hand, is in limited supply and water prices are heavily regulated based on the cost of treatment and delivery, which is less directly affected by supply and demand, according to the Alliance. The Alliance
DOE appreciates the comments that EPA water regulations under the Clean Water Act may impact the escalation rate of water price used in DOE's analysis and the observation about desalination plants being the next source of water available in many localities. With respect to the Clean Water Act comment, DOE notes that the Clean Water Act has been in existence since 1972. Thus, the water price trends should include the impacts of historical costs attributable to the Clean Water Act. Throughout that entire period, the CPI for water utility costs grew at an average rate of 1.6 percent faster than the total CPI, perhaps validating the NPCC point. As for capturing the effects of unknown future EPA regulations, DOE considers this a speculative effort, and DOE has long adhered to a guiding principle that the analyses avoid speculating in this fashion. With respect to the comment about desalination and the accompanying suggestion that DOE should use marginal water prices, DOE has developed water prices using recent water price data, which would include resource costs that underlie the provision of water. Looking forward, DOE acknowledges that new water resources brought online in future years may differ from those of the past, but DOE has not identified a source that carefully and systematically forecasts the impact of future developments of this nature, as the AEO2013 does in the case of electricity. Thus, to attempt to project growth rates for 50 states to capture these resource changes would be speculative. Rather than speculate, DOE has updated the calculation of State-level water prices with the inclusion of the 2012 AWWA survey
The discount rate is the rate at which future expenditures are discounted to establish their present value. DOE determined the discount rate by estimating the cost of capital for purchasers of automatic commercial ice makers. Most purchasers use both debt and equity capital to fund investments. Therefore, for most purchasers, the discount rate is the weighted average cost of debt and equity financing, or the weighted average cost of capital (WACC), less the expected inflation.
To estimate the WACC of automatic commercial ice maker purchasers, DOE used a sample of nearly 1,200 companies grouped to be representative of operators of each of the commercial business types (health care, lodging, foodservice, retail, education, food sales, and offices) drawn from a database of 6,177 U.S. companies presented on the Damodaran Online Web site.
DOE used the final sample of companies to represent purchasers of automatic commercial ice makers. For each company in the sample, DOE combined company-specific information from the Damodaran Online Web site, long-term returns on the Standard & Poor's 500 stock market index from the Damodaran Online Web site, nominal long-term Federal government bond rates, and long-term inflation to estimate a WACC for each firm in the sample.
For most educational buildings and a portion of the office buildings and cafeterias occupied and/or operated by public schools, universities, and State and local government agencies, DOE estimated the cost of capital based on a 40-year geometric mean of an index of long-term tax-exempt municipal bonds (>20 years).
DOE recognizes that within the business types purchasing automatic commercial ice makers there will be small businesses with limited access to capital markets. Such businesses tend to be viewed as higher risk by lenders and face higher capital costs as a result. To account for this, DOE included an additional risk premium for small businesses. The premium, 1.9 percent, was developed from information found on the Small Business Administration Web site.
Chapter 8 of the TSD provides more information on the derivation of discount rates. The average discount rate by business type is shown on Table IV.26.
DOE defines lifetime as the age at which typical automatic commercial ice maker equipment is retired from service. DOE estimated equipment lifetime based on its discussion with industry experts, and concluded a typical lifetime of 8.5 years. AHRI agreed with DOE's proposed average equipment lifetime of 8.5 years. (Alliance, No. 49 at p. 5) Hoshizaki agreed that 8.5 years is a fair assumption for commercial cube type ice makers. However, Hoshizaki stated that continuous type ice makers might have a shorter life. (Hoshizaki, No. 53 at p. 2)
For the NOPR analyses, DOE elected to use an 8.5-year average life for all equipment classes. With regard to the Hoshizaki statement that continuous type ice makers might have shorter life spans, DOE requests specific information to assist in determining whether continuous and batch type equipment should be analyzed using differing assumptions for equipment
EPCA prescribes that DOE must review and determine whether to amend performance-based standards for cube type automatic commercial ice makers by January 1, 2015. (42 U.S.C. 6313(d)(3)(A)) In addition, EPCA requires that the amended standards established in this rulemaking must apply to equipment that is manufactured on or after 3 years after the final rule is published in the
To estimate the share of affected customers who would likely be impacted by a standard at a particular efficiency level, DOE's LCC analysis considers the projected distribution of efficiencies of equipment that customers purchase under the base case (that is, the case without new energy efficiency standards). DOE refers to this distribution of equipment efficiencies as a base-case efficiency distribution.
DOE's methodology to estimate market shares of each efficiency level within each equipment class is based on an analysis of the automatic commercial ice makers currently available for purchase by customers. DOE analyzed all available models, calculated the percentage difference between the baseline energy usage embodied in the ice maker rulemaking analyses, and organized the available units by the efficiency levels. DOE then calculated the percentage of available models falling within each efficiency level bin. This efficiency distribution was used in the LCC and other downstream analyses as the baseline efficiency distribution.
Payback period is the amount of time it takes the customer to recover the 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 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 (
The inputs to the PBP calculation are the total installed cost to the customer of the equipment for each efficiency level and the average annual operating expenditures for each efficiency level in the first year. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not used.
EPCA (42 U.S.C. 6295(o)(2)(B)(iii) and 6313(d)(4)) established a rebuttable presumption that a new or amended standards are 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.
While DOE examined the rebuttable presumption criterion, it considered whether the standard levels considered are economically justified through a more detailed analysis of the economic impacts of these levels pursuant to 42 U.S.C. 6295(o)(2)(B)(iii) 6313(d)(4). The results of this analysis served as the basis for DOE to evaluate the economic justification for a potential standard level definitively (thereby supporting or rebutting the results of any preliminary determination of economic justification).
The NIA assesses the NES and the NPV of total customer costs and savings that would be expected as a result of the amended energy conservation standards. The NES and NPV are analyzed at specific efficiency levels (
DOE evaluates the impacts of the amended standards by comparing base-case projections with standards-case projections. The base-case projections characterize energy use and customer costs for each equipment class in the absence of any amended energy conservation standards. DOE compares these base-case projections with projections characterizing the market for each equipment class if DOE adopted the amended standards at each TSL. For the standards cases, DOE assumed a “roll-up” scenario in which equipment at efficiency levels that do not meet the standard level under consideration would “roll up” to the efficiency level that just meets the proposed standard level, and equipment already being purchased at efficiency levels at or above the proposed standard level would remain unaffected.
DOE uses a Microsoft Excel spreadsheet model to calculate the energy savings and the national customer costs and savings from each TSL. The NOPR TSD and other documentation that DOE provides during the rulemaking help explain the models and how to use them, and interested parties can review DOE's analyses by interacting with these spreadsheets. The NIA spreadsheet model uses average values as inputs (as opposed to probability distributions of
For the current analysis, the NIA used projections of energy prices and commercial building starts from the
A detailed description of the procedure to calculate NES and NPV, and inputs for this analysis, are provided in chapter 10 of the NOPR TSD.
DOE obtained data from AHRI and U.S. Census Bureau's Current Industrial Reports (CIR) to estimate historical shipments for automatic commercial ice makers. AHRI provided DOE with automatic commercial ice maker shipment data for 2010 describing the distribution of shipments by equipment class and by harvest capacity. AHRI's data to DOE also included a 11-year history of total shipments from 2000 to 2010. Additionally, DOE collected total automatic commercial ice maker shipment data for the period of 1973 to 2009 from the CIR. DOE reviewed the total shipments in the AHRI and CIR data, and noted that the CIR-reported shipments were consistently higher than the AHRI-reported shipments. DOE considered the possibility that these discrepancies were associated with net exports. However, the CIR data presented exports as a percentage of total production at a high level of industry aggregation, thus making it impossible to identify ice maker exports as a percentage of ice maker production. DOE requested input to aid in understanding the differences between the AHRI and CIR shipments data. DOE identified one source with identifiable export information, the North American Association of Food Equipment Manufacturers (NAFEM). NAFEM data for two recent calendar years (2007 and 2008) showed approximately 20 percent of total ice maker shipments associated with food service equipment as exports. Applying a 20 percent export factor to the CIR shipments data brought the CIR data into approximate agreement with the AHRI data.
For the preliminary analysis, DOE relied on the CIR shipment values, reduced 20 percent for exports. Using adjusted CIR data, DOE created a rolling estimate of total existing stock by aggregating historical shipments across 8.5-year historical periods. DOE used the CIR data to estimate a time series of shipments and total stock for 1994 to 2006—at the time of the analysis, the last year of data available without significant gaps in the data due to disclosure limitations. For each year, using shipments, stock, and the estimated 8.5-year life of the equipment, DOE estimated that, on average, 14 percent of shipments were for new installations and the remainder for replacement of existing stock.
DOE then combined the historical shipments, disaggregated between shipments for new installations and those for replacement of existing stock, and the historical stock values with projections of new construction activity from
Comments related to shipment analysis received during the February 2012 preliminary analysis public meeting are listed below along with DOE's responses to the comments.
AHRI, in response to DOE's question about inconsistencies between AHRI and CIR data, indicated it has found discrepancies and that these discrepancies relate to the way manufacturers report to the Census Bureau. AHRI stated that some residential ice makers may be lumped into the Census Bureau data. AHRI stated that it is confident in its data and would trust it as compared to the Census Bureau data. (AHRI, Public Meeting Transcript, No. 42 at p. 155) AHRI commented that it believes the historical shipments numbers it provided to DOE are more consistent in terms of product definitions and other factors than the Census Bureau shipments. (AHRI, No. 49 at p. 6) In response to a question by NPCC, Manitowoc indicated that while the automatic commercial ice makers market was still a little below historical levels, it was recovered from 2009. Manitowoc stated the product mix calculated by DOE is a “pretty good” snapshot, but there are shifts over time between batch and continuous types. (Manitowoc, Public Meeting Transcript, No. 42 at p. 147) Howe recommended using the Census Bureau shipments data because it is more encompassing. (Howe, No. 51 at p. 4) Hoshizaki stated AHRI shipment data could be skewed by models not sold in AHRI model class or manufacturers that do not participate with AHRI, but more information is needed to evaluate this issue. (Hoshizaki, No. 53 at p. 2)
In response to AHRI's comments about the known consistency of the AHRI data versus the less-well-known consistency of the Census Bureau data, DOE elected to use the AHRI historical data for the DOE Reference Case projections. As noted by Howe and Hoshizaki, the Census Bureau data could reflect broader coverage of all manufacturers. Thus, DOE configured the NIA model such that consistent scenarios can be modeled with either AHRI or Census Bureau data. With respect to the Manitowoc comments, DOE appreciates that the product mix represents a good snapshot. With respect to changing the mix, DOE requests additional data concerning trends, in the absence of which, DOE will by necessity hold the product mix static in the forecast.
The method for estimating the market share distribution of efficiency levels is presented in section IV.G.10, and a detailed description can be found in chapter 10 of the NOPR TSD. To estimate efficiency trends in the standards cases, DOE uses a “roll-up” scenario in its standards rulemakings. Under the roll-up scenario, DOE assumes that equipment efficiencies in the base case that do not meet the standard level under consideration would “roll up” to the efficiency level that just meets the proposed standard level and equipment already being purchased at efficiencies at or above the standard level under consideration would be unaffected. Table IV.30 shows the shipment-weighted market shares by efficiency level in the base-case scenario.
For each year in the forecast period, DOE calculates the NES for each TSL by multiplying the stock of equipment affected by the energy conservation standards by the estimated per-unit annual energy savings. DOE typically considers the impact of a rebound effect, introduced in the energy use analysis, in its calculation of NES for a given product. A rebound effect occurs when users operate higher efficiency equipment more frequently and/or for longer durations, thus offsetting estimated energy savings. When a rebound effect occurs, it is generally because the users of the equipment perceive it as less costly to use the equipment and elect to use it more intensively. In the case of automatic commercial ice makers, users of the equipment include restaurant wait staff, hotel guests, cafeteria patrons, or hospital staff using ice in the treatment of patients. Users of automatic commercial ice makers tend to have no perception of the cost of the ice, and rather are using the ice to serve a specific need. Given this, DOE believes there is no potential for a rebound effect. For the preliminary analysis, DOE used a rebound factor of 1, or no effect, for automatic commercial ice makers.
Inputs to the calculation of NES are annual unit energy consumption, shipments, equipment stock, and a site-to-source conversion factor.
The annual unit energy consumption is the site energy consumed by an automatic commercial ice maker unit in a given year. Using the efficiency of units at each efficiency level and the baseline efficiency distribution, DOE determined annual forecasted shipment-weighted average equipment efficiencies that, in turn, enabled determination of shipment-weighted annual energy consumption values.
The automatic commercial ice makers stock in a given year is the total number of automatic commercial ice makers shipped from earlier years (up to 12 years earlier) that remain in use in that year. The NES spreadsheet model keeps track of the total units shipped each year. For purposes of the NES and NPV analyses in the NOPR analysis, DOE assumed that, based on an 8.5-year average equipment lifetimes, approximately 12 percent of the existing automatic commercial ice makers are retired and replaced in each year. DOE assumes that, for units shipped in 2047, any units still remaining at the end of 2055 will be replaced.
DOE uses a multiplicative factor called “site-to-source conversion factor” to convert site energy consumption (at the commercial building) into primary or source energy consumption (the energy at the energy generation site required to convert and deliver the site energy). These site-to-source conversion factors account for the energy used at power plants to generate electricity and losses in transmission and distribution, as well as for natural gas losses from pipeline leakage and energy used for pumping. For electricity, the conversion factors vary over time due to projected changes in generation sources (that is, the power plant types projected to provide electricity to the country). The factors that DOE developed are marginal values, which represent the response of the system to an incremental decrease in consumption associated with amended energy conservation standards.
In the preliminary analysis, DOE used annual site-to-source conversion factors based on the version of the National Energy Modeling System (NEMS) that corresponds to
DOE has historically presented NES in terms of primary energy savings. In response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Science, DOE announced its intention to use full-fuel-cycle (FFC) measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (August 18, 2011) While DOE stated in that notice that it intended to use the Greenhouse Gases, Regulated Emissions, and Energy Use in Transportation (GREET) model to conduct the analysis, it also said it would review alternative methods, including the use of NEMS. After evaluating both models and the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in the
The approach used for today's NOPR, and the FFC multipliers that were applied are described in appendix 10D of the NOPR TSD. NES results are presented in both primary and in terms of FFC savings; the savings by TSL are summarized in terms of FFC savings in section V.B.3.
The inputs for determining the NPV of the total costs and benefits experienced by customers of the automatic commercial ice makers are: (1) total annual installed cost; (2) total annual savings in operating costs; and (3) a discount factor. DOE calculated net national savings for each year as the difference in installation and operating costs between the base-case scenario and standards-case scenarios. DOE calculated operating cost savings over the life of each piece of equipment shipped in the forecast period.
DOE multiplied monetary values in future years by the discount factor to determine the present value of costs and savings. DOE estimated national impacts with both a 3-percent and a 7-percent real discount rate as the average real rate of return on private investment in the U.S. economy. These discount rates are used in accordance with the Office of Management and Budget (OMB) guidance to Federal agencies on the development of regulatory analysis (OMB Circular A-4, September 17, 2003), and section E, “Identifying and Measuring Benefits and Costs,” therein. DOE defined the present year as 2013 for the NOPR analysis. The 7-percent real value is an estimate of the average before-tax rate of return to private capital in the U.S. economy. The 3-percent real value represents the “societal rate of time preference,” which is the rate at which society discounts future consumption flows to their present.
As discussed in IV.G.1, DOE included a projection of price trends in the
In analyzing the potential impact of new or amended standards on commercial customers, DOE evaluates the impact on identifiable groups (
Comparing the foodservice, food sales, and lodging categories, foodservice faces the highest energy price, with food sales and lodging facing lower and nearly the same energy prices. Lodging faces the highest cost of capital. Foodservice faces a higher cost of capital than food sales. Given the cost of capital disparity, lodging was selected for LCC subgroup analysis. With foodservice facing a higher cost of capital, it was selected for subgroup analysis because the higher cost of capital should lead foodservice customers to value first cost more and future electricity savings less than would be the case for food sales customers.
At the February 2012 preliminary analysis public meeting, DOE asked for input on the LCC subgroup analysis, and in particular, about appropriate groups for analysis. Manitowoc recommended that DOE look at small businesses, such as franchise operations and independent proprietor-run establishments. Manitowoc added that while there are institutional sectors with longer windows, there are others—“mom and pops”—that represent a large part of the market and which may be unfairly impacted by new standards because of their short payback windows and cash constraints. Manitowoc also indicated it is not just restaurants, it is hotels operated by franchisees and in some cases even hotel chains. (Manitowoc, Public Meeting Transcript, No. 42 at p. 169)
DOE estimated the impact on the identified customer subgroups using the LCC spreadsheet model. The standard LCC and PBP analyses (described in section IV.G) include various types of businesses that use automatic commercial ice makers. For the LCC subgroup analysis, it was assumed that the subgroups analyzed do not have access to national purchasing accounts or two major capital markets thereby making the discount rates higher for these subgroups. Details of the data used for LCC subgroup analysis and results are presented in chapter 11 of the NOPR TSD.
DOE performed an MIA to estimate the impacts of amended energy conservation standards on manufacturers of automatic commercial ice makers. The MIA has both quantitative and qualitative aspects and includes analyses of forecasted industry cash flows, the INPV, investments in research and development (R&D) and manufacturing capital, and domestic manufacturing employment. Additionally, the MIA seeks to determine how amended energy conservation standards might affect manufacturing employment, capacity, and competition, as well as how standards contribute to overall regulatory burden. Finally, the MIA serves to identify any disproportionate impacts on manufacturer subgroups, in particular, small businesses.
The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (GRIM), an industry cash flow model with inputs specific to this rulemaking. The key GRIM inputs include data on the industry cost structure, unit production costs, product shipments, manufacturer markups, and investments in R&D and manufacturing capital required to produce compliant products. The key GRIM outputs are the INPV, which is the sum of industry annual cash flows over the analysis period, discounted using the industry weighted average cost of capital, and the impact to domestic manufacturing employment. The model estimates the impacts of more-stringent energy conservation standards on a given industry by comparing changes in INPV and domestic manufacturing employment between a base case and the various TSLs in the standards case. To capture the uncertainty relating to manufacturer pricing strategy following amended standards, the GRIM estimates a range of possible impacts under different markup scenarios.
The qualitative part of the MIA addresses manufacturer characteristics and market trends. Specifically, the MIA considers such factors as manufacturing capacity, competition within the industry, the cumulative impact of other DOE and non-DOE regulations, and impacts on small business manufacturers. The complete MIA is outlined in chapter 12 of the NOPR TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the automatic commercial ice maker industry. This included a top-down cost analysis of automatic commercial ice maker manufacturers that DOE used to derive preliminary financial inputs for the GRIM (
In Phase 2 of the MIA, DOE prepared a framework industry cash flow analysis to quantify the impacts of new and amended energy conservation standards. The GRIM uses several factors to determine a series of annual cash flows starting with the announcement of the standard and extending over a 30-year period following the effective date of the standard. These factors include annual expected revenues, costs of sales, SG&A and R&D expenses, taxes, and capital expenditures. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) create a need for increased investment; (2) raise production costs per unit; and (3) alter revenue due to higher per-unit prices and changes in sales volumes.
In addition, during Phase 2, DOE developed interview guides to distribute to manufacturers of automatic commercial ice makers in order to
In Phase 3 of the MIA, DOE conducted structured, detailed interviews with a representative cross-section of manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM and to identify key issues or concerns. See section IV.J.4 for a description of the key issues raised by manufacturers during the interviews. As part of Phase 3, DOE also evaluated subgroups of manufacturers that may be disproportionately impacted by amended standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash flow analysis. Such manufacturer subgroups may include small manufacturers, low volume manufacturers, niche players, and/or manufacturers exhibiting a cost structure that largely differs from the industry average.
DOE identified one subgroup, small manufacturers, for which average cost assumptions may not hold. DOE applied the small business size standards published by the SBA to determine whether a company is considered a small business. 65 FR 30840, May 15, 2000, as amended at 67 FR 52602, Aug. 13, 2002; 74 FR 46313, Sept. 9, 2009. To be categorized as a small business under North American Industry Classification System (NAICS) 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing,” which includes commercial ice maker manufacturing, a manufacturer and its affiliates may employ a maximum of 750 employees. The 750-employee threshold includes all employees in a business's parent company and any other subsidiaries. Based on this classification, DOE identified seven manufacturers of automatic commercial ice makers that qualify as small businesses. The automatic commercial ice maker small manufacturer subgroup is discussed in chapter 12 of the NOPR TSD and in section VI.B.1 of this rulemaking.
DOE uses the GRIM to quantify the changes in industry cash flows resulting from new or amended energy conservation standards. The GRIM uses manufacturer costs, markups, shipments, and industry financial information to arrive at a series of base-case annual cash flows absent new or amended standards, beginning with the present year, 2013, and continuing through 2047. The GRIM then models changes in costs, investments, shipments, and manufacturer margins that may result from new or amended energy conservation standards and compares these results against those in the base-case forecast of annual cash flows. The primary quantitative output of the GRIM is the INPV, which DOE calculates by summing the stream of annual discounted cash flows over the full analysis period. For manufacturers of automatic commercial ice makers, DOE used a real discount rate of 9.2 percent, the weighted average cost of capital as derived from industry financials. DOE then modified this figure based on feedback received during confidential interviews with manufacturers.
The GRIM calculates cash flows using standard accounting principles and compares changes in INPV between the base case and the various TSLs. The difference in INPV between the base case and a standards case represents the financial impact of the amended standard on manufacturers at that particular TSL. As discussed previously, DOE collected the necessary information to develop key GRIM inputs from a number of sources, including publicly available data and interviews with manufacturers (described in the next section). The GRIM results are shown in section V.B.2.a. Additional details about the GRIM can be found in chapter 12 of the NOPR TSD.
Manufacturing a higher efficiency product is typically more expensive than manufacturing a baseline product due to the use of more complex and typically more costly components. The changes in the MPCs of the analyzed products can affect the revenues, gross margins, and cash flow of the industry, making product cost data key GRIM inputs for DOE's analysis.
For each efficiency level of each equipment class that was directly analyzed, DOE used the MPCs developed in the engineering analysis, as described in section IV.A.2 and further detailed in chapter 5 of the NOPR TSD. For equipment classes that were indirectly analyzed, DOE used a composite of MPCs from similar equipment classes, substitute component costs, and design options to develop an MPC for each efficiency level. For equipment classes that had multiple units analyzed, DOE used a weighted average MPC based on the relative shipments of products at each efficiency level as the input for the GRIM. Additionally, DOE used information from its teardown analysis, described in section IV.D, to disaggregate the MPCs into material and labor costs. These cost breakdowns and equipment markups were validated with manufacturers during manufacturer interviews.
The GRIM estimates manufacturer revenues based on total unit shipment forecasts and the distribution of shipments by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment forecasts derived from the shipments analysis from 2013, the base year, to 2047, the end of the analysis period. See chapter 9 of the NOPR TSD for additional details.
Amended energy conservation standards will cause manufacturers to incur conversion costs to bring their production facilities and product designs into compliance. For the MIA, DOE classified these conversion costs into two major groups: (1) product conversion costs and (2) capital conversion costs. Product conversion costs include investments in research, development, testing, marketing, and other non-capitalized costs necessary to make product designs comply with new or amended energy conservation standards. Capital conversion costs include investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new product designs can be fabricated and assembled.
If new or amended energy conservation standards require investment in new manufacturing capital, there also exists the possibility that they will render existing manufacturing capital obsolete. In the case that this obsolete manufacturing capital is not fully depreciated at the time new or amended standards go into effect, this would result in the stranding of these assets, and would necessitate the write-down of their residual un-depreciated value.
DOE used multiple sources of data to evaluate the level of product and capital
In general, DOE assumes that all conversion-related investments occur between the year the final rule is published and the year by which manufacturers must comply with the new or amended standards. The investment figures used in the GRIM can be found in section V.B.2.a of this notice. For additional information on the estimated product conversion and capital conversion costs, see chapter 12 of the NOPR TSD.
As discussed in section IV.D, MSPs include direct manufacturing production costs (
Under the preservation of gross margin percentage scenario, DOE applied a single, uniform “gross margin percentage” markup across all efficiency levels. As production costs increase with efficiency, this scenario implies that the absolute dollar markup will increase as well. Based on publicly available financial information for manufacturers of automatic commercial ice makers and comments from manufacturer interviews, DOE assumed the industry average markup on production costs to be 1.25. Because this markup scenario assumes that manufacturers would be able to maintain their gross margin percentage as production costs increase in response to an amended energy conservation standard, it represents a lower bound of industry impacts (higher industry profitability) under an amended energy conservation standard.
In the preservation of EBIT markup scenario, manufacturer markups are calibrated so that EBIT in the year after the compliance date of the amended energy conservation standard is the same as in the base case. Under this scenario, as the cost of production goes up, manufacturers are generally required to reduce the markups on their minimally compliant products to maintain a cost competitive offering. The implicit assumption behind this scenario is that the industry can only maintain EBIT in absolute dollars after compliance with the amended standard is required. Therefore, operating margin (as a percentage) shrinks in the standards cases. This markup scenario represents an upper bound of industry impacts (lower profitability) under an amended energy conservation standard.
In response to the February 2012 preliminary analysis public meeting, interested parties commented on the assumptions and results of the preliminary analysis TSD. Oral and written comments addressed several topics, including the impact to suppliers and the distribution channel, the importance of the ENERGYSTAR program, cumulative regulatory burden, and the impact to small manufacturers.
AHRI commented that DOE must perform analyses to assess the impact of the rule on component suppliers, distributors, dealers, and contractors. Where the MIA serves to assess the impact of amended energy conservation standards on manufacturers of automatic commercial ice makers; any impact on distributors, dealers, and contractors falls outside the scope of this analysis.
Impacts on component suppliers might arise if manufacturers switched to more-efficient components, or if there was a substantial reduction of orders following new or amended standards. In public comments, manufacturers expressed that given their low production volumes, the automatic commercial ice maker manufacturing industry has little influence over component suppliers relative to other commercial refrigeration equipment industries. It follows that energy conservation standards for automatic commercial ice makers would have little impact on component suppliers given their marginal contribution to overall commercial refrigeration component demand.
Manitowoc commented that it is a very strong supporter of ENERGY STAR and that certification is very important to its customers because of the potential for utility rebates, Leadership in Energy and Environmental Design (LEED) certification, and other reasons. Manitowoc expressed concern that, if efficiency standards were raised to the max-tech level, there would be no more room for an ENERGY STAR category, which would be disruptive to the industry.
DOE acknowledges the importance of the ENERGY STAR program and of understanding its interaction with energy efficiency standards. However, EPCA requires DOE to establish energy conservation standards at the maximum level that is technically feasible and economically justified. DOE has found, over time, with other products, as the standard level is increased, manufacturers' research results in energy efficiency improvements that are regarded by the ENERGY STAR program. As such, any standard level below the max-tech level continues to leave room for ENERGY STAR rebate programs.
AHRI commented on the cumulative regulatory burden associated with DOE efficiency standards. AHRI indicated that several legislative and regulatory activities should be considered, including legislation intended to reduce lead in drinking water and climate change bills that may be considered by Congress. (AHRI, No. 49 at p. 4)
DOE takes into account the cumulative cost of multiple Federal regulations on manufacturers in the cumulative regulatory burden section of its analysis, which can be found in section V.B.2.e of this notice. DOE does not analyze the quantitative impacts of standards that have not yet been finalized. Similarly, DOE does not analyze the impacts of potential climate change bills because any impacts would
AHRI noted that California has regulations to limit GHGs and the measures established by the California Air Resources Board (CARB) to reduce global warming will reduce the use of refrigerants such as HFCs. CARB is currently limiting the in-State use of refrigerants considered to have high global warming potential (GWP) in non-residential refrigeration systems through its Refrigerant Management Program that became effective on January 1, 2011.
The discussion of cumulative regulatory burden on manufacturers of automatic commercial ice makers is detailed further in chapter 12 of the NOPR TSD.
Howe observed that most high-capacity ice makers are made by small manufacturers, and consequently, setting higher efficiency standards for high-capacity equipment may be discriminatory against small manufacturers. (Howe, No. 51 at p. 2)
DOE agrees that amended standards may have disproportionate impacts on smaller manufacturers. To make this determination, the DOE conducts an analysis of impacts on certain manufacturer subgroups including small businesses to assess if any impacts prove to be disproportionate. The results of this analysis are described further in section VI.B of this notice and detailed in chapter 12 of the NOPR TSD.
To inform the MIA, DOE interviewed manufacturers with an estimated combined market share of 95 percent. The information gathered during these interviews enabled DOE to tailor the GRIM to reflect the unique financial characteristics of the automatic commercial ice maker industry. These confidential interviews provided information that DOE used to evaluate the impacts of amended energy conservation standards on manufacturer cash flows, manufacturing capacities, and employment levels.
During the manufacturer interviews, DOE asked manufacturers to describe their major concerns about this rulemaking. The following sections describe the most significant issues identified by manufacturers. DOE also includes additional concerns in chapter 12 of the NOPR TSD.
All manufacturers interviewed characterized the market for automatic commercial ice makers as extremely price sensitive. They hold the position that new and amended standards will result in decreased profit margins as they will be unable to pass through costs relating to standards compliance. They noted that this will be particularly troublesome for lower capacity equipment classes (Small SCU and Small IMH), which are sold primarily to smaller restaurants and food service establishments with limited access to capital. Additionally, they noted that distributors tend to be individual proprietors or small franchises with limited opportunities to extend financing to their customers. Manufacturers went on to report that while energy efficiency is important, it is not a feature for which customers would pay a premium.
One manufacturer also noted that replacement parts represented 70 percent of sales, and while sales of parts had increased since 2009, unit sales had decreased, indicating that customers were holding onto units longer. The ability to extend the life of a unit through repairs and refurbishment presents a further economic challenge to manufacturers facing energy efficiency standards.
Manufacturers characterized the automatic commercial ice maker market as a niche market with a high degree of competition. The recent entrance of foreign manufacturers has led to a further tightening of price competition due to the lower labor costs of these foreign manufacturers. Several domestic manufacturers expressed concern about the enforcement of an amended energy efficiency standard for automatic commercial ice makers produced overseas. Manufacturers believe that insufficient enforcement will lead to market distortions, as companies that make the necessary investments to meet amended standards would be at a distinct pricing disadvantage to unscrupulous competitors, often times foreign manufacturers, that do not fully comply. The manufacturers requested that DOE take the enforcement action necessary to maintain a level playing field and to eliminate non-compliant products from the market.
Some manufacturers expressed concerns that future energy conservation standards would have an adverse impact on the reliability of their products. One manufacturer stated that any time new components or designs are introduced, that there is an increase in service calls and the mean time between failures drops as they work out the issues. This manufacturer went on to emphasize that reliability is the most important feature of their products.
Several manufacturers expressed concerns over the imbalance of internal engineering resources brought about by the regular revision and introduction of energy conservation standards. As energy use has become increasingly regulated, manufacturers have had to shift engineering and support resources away from other initiatives, adversely affecting product innovation outside of energy efficiency. One manufacturer reported that a previous round of standards required nearly all of the company's engineering resources for between 1 and 2 years. Where the R&D effort required for compliance is intermittent, innovation is impacted without adding to overall employment. DOE requests additional comment on the intermittency of R&D efforts directed at compliance with energy conservation standards and its impact on other research and development resources.
In the emissions analysis, DOE estimates the reduction in power sector emissions of CO
DOE conducted the emissions analysis using emissions factors that were derived from data in
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. For CH
EIA prepares the
SO
The attainment of emissions caps is typically flexible among EGUs and is enforced through the use of emissions allowances and tradable permits. Under existing EPA regulations, any excess SO
Beginning in 2015, however, SO
CAIR established a cap on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, DOE's energy conservation standards would likely reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
As part of the development of this proposed rule, DOE considered the estimated monetary benefits from the reduced emissions of CO
For today's NOPR, DOE is relying on a set of values for the social cost of carbon (SCC) that was developed by an interagency process. A summary of the basis for these values is provided below, and a more detailed description of the methodologies used is provided as an appendix to chapter 14 of the TSD.
The SCC is an estimate of the monetized damages associated with an incremental increase in carbon emissions in a given year. It is intended to include (but is not limited to) changes in net agricultural productivity, human health, property damages from increased flood risk, and the value of ecosystem services. Estimates of the SCC are provided in dollars per metric ton of carbon dioxide. A domestic SCC value is meant to reflect the value of damages in the United States resulting from a unit change in carbon dioxide emissions, while a global SCC value is meant to reflect the value of damages worldwide.
Under section 1(b) of Executive Order 12866, agencies must, to the extent permitted by law, “assess both the costs and the benefits of the intended regulation and, recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” The purpose of the SCC estimates presented here is to allow agencies to incorporate the monetized social benefits of reducing CO
As part of the interagency process that developed these SCC estimates, technical experts from numerous agencies met on a regular basis to consider public comments, explore the technical literature in relevant fields, and discuss key model inputs and assumptions. The main objective of this process was to develop a range of SCC values using a defensible set of input assumptions grounded in the existing scientific and economic literatures. In this way, key uncertainties and model differences transparently and consistently inform the range of SCC estimates used in the rulemaking process.
When attempting to assess the incremental economic impacts of carbon dioxide (CO
Despite the serious limits of both quantification and monetization, SCC estimates can be useful in estimating the social benefits of reducing carbon dioxide emissions. Most Federal regulatory actions can be expected to have marginal impacts on global emissions. For such policies, the agency can estimate the benefits from reduced (or costs from increased) emissions in any future year by multiplying the change in emissions in that year by the SCC value appropriate for that year. The net present value of the benefits can then be calculated by multiplying each of these future benefits by an appropriate discount factor and summing across all affected years. This approach assumes that the marginal damages from increased emissions are constant for small departures from the baseline emissions path, an approximation that is reasonable for policies that have effects on emissions that are small relative to cumulative global carbon dioxide emissions. For policies that have a large (non-marginal) impact on global cumulative emissions, there is a separate question of whether the SCC is an appropriate tool for calculating the benefits of reduced emissions. This concern is not applicable to this notice, however.
It is important to emphasize that the interagency process is committed to updating these estimates as the science and economic understanding of climate change and its impacts on society improves over time. In the meantime, the interagency group will continue to explore the issues raised by this analysis and consider public comments as part of the ongoing interagency process.
Economic analyses for Federal regulations have used a wide range of values to estimate the benefits associated with reducing carbon dioxide emissions. The model year 2011 Corporate Average Fuel Economy final rule, the U.S. Department of Transportation (DOT) used both a “domestic” SCC value of $2 per metric ton of CO
In 2009, an interagency process was initiated to offer a preliminary assessment of how best to quantify the benefits from reducing carbon dioxide emissions. To ensure consistency in how benefits are evaluated across agencies, the Administration sought to develop a transparent and defensible method, specifically designed for the rulemaking process, to quantify avoided climate change damages from reduced CO
Since the release of the interim values, the interagency group reconvened on a regular basis to generate improved SCC estimates. Specifically, the group considered public comments and further explored
Each model takes a slightly different approach to model how changes in emissions result in changes in economic damages. A key objective of the interagency process was to enable a consistent exploration of the three models while respecting the different approaches to quantifying damages taken by the key modelers in the field. An extensive review of the literature was conducted to select three sets of input parameters for these models: climate sensitivity, socio-economic and emissions trajectories, and discount rates. A probability distribution for climate sensitivity was specified as an input into all three models. In addition, the interagency group used a range of scenarios for the socio-economic parameters and a range of values for the discount rate. All other model features were left unchanged, relying on the model developers' best estimates and judgments.
The interagency group selected four sets of SCC values for use in regulatory analyses. Three sets of values are based on the average SCC from the three integrated assessment models, at discount rates of 2.5, 3, and 5 percent. The fourth set, which represents the 95th percentile SCC estimate across all three models at a 3-percent discount rate, is included to represent higher-than-expected impacts from temperature change further out in the tails of the SCC distribution. The values grow in real terms over time. Additionally, the interagency group determined that a range of values from 7 percent to 23 percent should be used to adjust the global SCC to calculate domestic effects, although preference is given to consideration of the global benefits of reducing CO
The SCC values used for today's notice were generated using the most recent versions of the three integrated assessment models that have been published in the peer-reviewed literature.
It is important to recognize that a number of key uncertainties remain, and that current SCC estimates should be treated as provisional and revisable since they will evolve with improved scientific and economic understanding. The interagency group also recognizes that the existing models are imperfect and incomplete. The National Research Council report mentioned above points out that there is tension between the goal of producing quantified estimates of the economic damages from an incremental ton of carbon and the limits of existing efforts to model these effects. There are a number of concerns and problems that should be addressed by the research community, including research programs housed in many of the Federal agencies participating in the interagency process to estimate the SCC. The interagency group intends to periodically review and reconsider those estimates to reflect increasing knowledge of the science and economics of climate impacts, as well as improvements in modeling.
In summary, in considering the potential global benefits resulting from reduced CO
DOE multiplied the CO
As noted above, DOE has taken into account how new or amended energy conservation standards would reduce NO
DOE is evaluating appropriate monetization of avoided SO
In the utility impact analysis, DOE analyzes the changes in electric installed capacity and generation that result for each TSL. The utility impact analysis uses a variant of NEMS,
Employment impacts include direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards; the MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the jobs created or eliminated in the national economy due to: (1) reduced spending by end users on energy; (2) reduced spending on new energy supply by the utility industry; (3) increased customer spending on the purchase of new products; and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by the Labor Department's Bureau of Labor Statistics (BLS). BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
For the amended standard levels considered in today's NOPR, DOE estimated indirect national employment impacts using an input/output model of the U.S. economy called Impact of Sector Energy Technologies version 3.1.1 (ImSET).
For more details on the employment impact analysis, see chapter 16 of the NOPR TSD.
At the February 2012 preliminary analysis public meeting, NPCC inquired whether the money saved from low water consumption will be moved into the employment impact analysis along with the money saved from lower energy consumption. (NPCC, No. 42 at pp. 164 and 165) In response, DOE notes that all changes in operations and maintenance costs, including water costs, are captured in the employment analysis.
For more details on the employment impact analysis and its results, see chapter 16 of the NOPR TSD and section V.B.3.d of this notice.
DOE prepared a regulatory impact analysis (RIA) for this rulemaking, which is described in chapter 17 of the NOPR TSD. The RIA is subject to review by OIRA in the OMB. The RIA consists of (1) a statement of the problem addressed by this regulation and the mandate for Government action; (2) a description and analysis of policy alternatives to this regulation; (3) a qualitative review of the potential impacts of the alternatives; and (4) the national economic impacts of the proposed standard.
The RIA assesses the effects of feasible policy alternatives to amended automatic commercial ice makers standards and provides a comparison of the impacts of the alternatives. DOE evaluated the alternatives in terms of their ability to achieve significant energy savings at reasonable cost, and compared them to the effectiveness of the proposed rule.
DOE identified the following major policy alternatives for achieving increased automatic commercial ice makers efficiency:
• No new regulatory action
• commercial customer tax credits
• commercial customer rebates
• voluntary energy efficiency targets
• bulk government purchases
• early replacement
DOE qualitatively evaluated each alternative's ability to achieve significant energy savings at reasonable cost and compared it to the effectiveness of the proposed rule. DOE assumed that each alternative policy would induce commercial customers to voluntarily purchase at least some higher efficiency equipment at any of the TSLs. In contrast to a standard at one of the TSLs, the adoption rate of the alternative non-regulatory policy cases may not be 100 percent, which would result in lower energy savings than a standard. The following paragraphs discuss each policy alternative. (See chapter 17 of the NOPR TSD for further details.)
DOE selected between four and seven efficiency levels for all equipment classes for analysis. For all equipment classes, the first efficiency level is the baseline efficiency level. Based on the results of the LCC analysis and NIA, DOE selected five TSLs above the baseline level for each equipment class for the NOPR stage of this rulemaking. Table V.1 shows the mapping between TSLs and efficiency levels.
TSL 5 was selected at the max-tech level for all equipment classes.
TSL 4 was chosen as an intermediate level between the max-tech level and the maximum customer NPV level, subject to the requirement that the TSL 4 NPV must be positive. “Customer NPV” is the NPV of future savings obtained from the NIA. It provides a measure of the benefits only to the customers of the automatic commercial ice makers, and does not account for the net benefits to the Nation. The net benefits to the Nation also include monetized values of emissions reductions in addition to the customer NPV. Where a sufficient number of efficiency levels allow it, TSL 4 is set at least one level below max-tech and one level above the efficiency level with the highest NPV. In one case, the TSL 4 efficiency level is the maximum NPV level because the next higher level had a negative NPV. In cases where the maximum NPV efficiency level is the penultimate efficiency level and the max-tech level showed a positive NPV the TSL 4 efficiency level is also the max-tech level.
TSL 3 was chosen to represent the group of efficiency levels with the highest customer NPV at a 7-percent discount rate.
TSL 2 was selected to provide intermediate efficiency levels that fill the gap between the TSLs 1 and 3. Note that with the number of efficiency levels available for each equipment class, there is often overlap between TSL levels. Thus, TSL 2 includes levels that overlap with both TSLs 1 and 3. The intent of TSL 2 is to provide an intermediate level to preclude big jumps in efficiency between TSLs 1 and 3.
TSL 1 was set equal to efficiency level 2. In the analysis, efficiency level 2 was set equivalent to ENERGY STAR for products rated by ENERGY STAR, and an equivalent efficiency improvement for other equipment classes.
Table V.2 illustrates the efficiency improvements incorporated in all efficiency levels.
Table V.3 illustrates the design options associated with each TSL level, for each analyzed product class. The design options are discussed in Section IV.D.3 of today's NOPR, and in Chapter 5 of the NOPR TSD.
DOE requests comment and data related to the required equipment size increases associated with the design options at each TSL levels. Chapter 5 of the NOPR TSD contains full descriptions of the design options and DOE's analyses for the equipment size increase associated with the design options selected. DOE also requests comments and data on the efficiency gains associated with each set of design options. Chapter 5 of the NOPR TSD contains DOE's analyses of the efficiency gains for each design option considered. Finally, DOE requests comment and data on any utility impacts associated with each set of design options, such as potential ice-style changes.
Table V.4 and Table V.5 translate the TSLs into potential standards. In Table V.4, the TSLs are translated into energy consumption standards for the directly analyzed (primary) equipment classes. Table V.5. provides the equipment class mapping showing which of the directly analyzed standards' results were used to extend standards to secondary classes. Table V.6 extends the standards to the remaining (secondary) equipment classes that have not been analyzed directly.
In developing TSLs, DOE analyzed each equipment class separately, and attributed a percentage reduction with each portion of the standard curve (small/medium/large). To ensure that the standard curve remained connected (no gaps at the breakpoints), DOE developed a method for expressing the consumption standards that relied on pivoting the low-capacity equipment classes about a representative point. DOE was able to use the same methodology for most equipment classes, with exceptions for IMH-W-B, IMH-A-B, and RCU-RC equipment classes.
In drawing a relationship between the harvest capacity (lb ice/24 hours) and the maximum allowed energy usage (kilowatt-hours per 100 lb of ice), DOE first took the large-capacity equipment class (which is set at a constant value for all equipment types except IMH-A) and applied the allocated percentage reduction (percentage reduction associated with the TSL for that equipment class). For example, for IMH-W-Large-B, the baseline level is set at 4.0. If the TSL allocated a 10-percent reduction for IMH-W-Large-B, then the next level was set at 4.0 × (1-10 percent) = 3.6 kWh/100 lb of ice.
Then, for the small equipment classes, DOE applied the allocated percentage reduction at a designated median capacity in that harvest rate range. The medium capacity was selected based on shipment levels, and where the median fell within the shipments data. For example, if the median capacity for the small equipment class was at 300 lb ice/24 hours, DOE would calculate the baseline energy usage and then apply the allocated percentage reduction to obtain a point at 300 lb ice/24 hours. DOE would then draw a line between the start of the large equipment class and this median capacity point to obtain the equation for the small equipment class, ensuring that there were no gaps between small and large-capacity.
For the IMH-W-B equipment classes, this equipment type has small, medium, and large equipment classes. In this case, for the small equipment class, DOE applied the allocated percentage reduction to the whole equation. So if the percentage reduction was 10 percent, the new equation for the small equipment class would be (1-10 percent) × (7.80 − 0.0055H) = 7.02 − 0.00495H. DOE would then draw a line between the end of the small equipment class and the start of the large equipment class, to obtain the equation for the medium equipment class.
For the IMH-A-B equipment classes, DOE sought to obtain a constant efficiency level for the largest equipment classes. This calculation is discussed in section IV.B.1.b.
For the RCU-RC-B and RCU-RC-C equipment classes, DOE simply took the standard levels calculated for the large RCU-NRC-B and RCU-NRC-C equipment classes, respectively, and subtracted the 0.2 kWh/100 lb of ice differential discussed in section IV.B.1.e, to arrive at the standard levels. For the small RCU classes, the remote compressor standards were developed such that no gap exists at the harvest rate breakpoints.
Using the typical unit size for directly analyzed equipment classes, the potential standards shown on Table V.4, DOE estimates energy usage for equipment within each class to be as shown on Table V.7.
Customers affected by new or amended standards usually incur higher purchase prices and lower operating costs. DOE evaluates these impacts on individual customers by calculating changes in LCC and the PBP associated with the TSLs. The results of the LCC analysis for each TSL were obtained by comparing the installed and operating costs of the equipment in the base-case scenario (scenario with no amended energy conservation standards) against the standards-case scenarios at each TSL. The energy consumption values for both the base-case and standards-case scenarios were calculated based on the DOE test procedure conditions specified in the 2012 test procedure final rule, which adopts an industry-accepted test method. Using the approach described in section IV.G, DOE calculated the LCC savings and PBPs for the TSLs considered in this NOPR. The LCC analysis is carried out in the form of Monte Carlo simulations. Consequently, the results of LCC analysis are distributed over a range of values, as opposed to a single deterministic value. DOE presents the mean or median values, as appropriate, calculated from the distributions of results.
Table V.8 through Table V.25 show the results of the LCC analysis for each equipment class. Each table presents the results of the LCC analysis, including mean LCC, mean LCC savings, median PBP, and distribution of customer impacts in the form of percentages of customers who experience net cost, no impact, or net benefit.
Only two equipment classes have negative LCC savings values at TSL 5: SCU-A-Small-C and IMH-A-Small-C. Negative average LCC savings imply that, on average, customers experience an increase in LCC of the equipment as a consequence of buying equipment associated with that particular TSL. In many cases, the TSL 5 level is not negative, but the LCC savings are sharply lower than the TSL 3 levels. For IMH-W-Small-B, SCU-W-Large-B, and SCU-A-Small-B, the TSL 5 LCC savings are less than one-third the TSL 3 savings. In other cases, such as IMH-W-Large-B2, IMH-A-Small-B, SCU-A-Large-B, and IMH-A-Large-C, the TSL 5 LCC savings are roughly one-half of the TSL 3 LCC savings or less. All of these results indicate the cost increments associated with the max-tech design option are high, and the increase in LCC (and corresponding decrease in LCC savings) indicates that this design option may result in negative customer impacts. TSL 5 is associated with the max-tech level for all the equipment classes. Drain water heat exchanger technology is the design option associated with the max-tech efficiency levels for batch equipment classes. For continuous equipment classes, the max-tech design options are auger motors using permanent magnets.
The mean LCC savings associated with TSL 4 are all positive values for all equipment classes. The mean LCC savings at all lower TSL levels are also positive. The trend is generally an increase in LCC savings for TSL 1 through 3, with LCC savings either remaining constant or declining at TSL 4. In three cases, the highest LCC savings are at TSL 2: IMH-A-Large-B2, RCU-Large-B2, and SCU-A-Large-B. The drop-off in LCC savings at TSL 4 is generally associated with the relatively large cost for the max-tech design options, the savings for which frequently span the last two efficiency levels.
As described in section IV.H.2, DOE used a “roll-up” scenario in this rulemaking. Under the roll-up scenario, DOE assumes that the market shares of the efficiency levels (in the base case) that do not meet the standard level under consideration would be “rolled up” into (meaning “added to”) the market share of the efficiency level at the standard level under consideration, and the market shares of efficiency levels that are above the standard level under consideration would remain unaffected. Customers, in the base-case scenario, who buy the equipment at or above the TSL under consideration, would be unaffected if the amended standard were to be set at that TSL. Customers, in the base-case scenario, who buy equipment below the TSL under consideration would be affected if the amended standard were to be set at that TSL. Among these affected customers, some may benefit from lower LCC of the equipment and some may incur net cost due to higher LCC, depending on the inputs to LCC analysis such as electricity prices, discount rates, installation costs, and markups. DOE's results indicate that, with one exception, customers either benefit or are unaffected by setting standards at TSLs 1, 2, or 3, and at TSL 4 in the case of SCU-A-Small-C. Customers either benefit or are unaffected at all 5 TSLs in the case of IMH-W-Large-B1. In the case of IMH-W-Small-B, 3 percent of
The median PBP values for TSLs 1 through 3 are all less than 2 years, except for IMH-W-Small-B where the TSL 3 PBP is 2.3 years. The median PBP values for TSL 4 range from 1.9 years to 4.8 years.
PBP values for TSL 5 range from 2.2 years to over 19 years. SCU-A-Small-C exhibits the longest PBP for TSL 5 at 19.1 years. IMH-A-Small-C has a PBP of nearly 7 years, while IMH-W-Small-B has a PBP over 5 years. IMH-A-Small-B and SCU-A-Small-B both PBPs at or above 4 years for TSL 5.
As described in section IV.I, DOE estimated the impact of amended energy conservation standards for automatic commercial ice makers, at each TSL, on two customer subgroups—the foodservice sector and the lodging sector. For the automatic commercial ice makers, DOE has not distinguished between subsectors of the foodservice industry. In other words, DOE has been treating it as one sector as opposed to modeling limited or full service restaurants and other types of foodservice firms separately. Foodservice was chosen as one representative subgroup because of the large percentage of the industry represented by family or locally owned restaurants. Likewise, lodging was chosen due to the large percentage of the industry represented by locally owned, or franchisee-owned hotels. DOE carried out two LCC subgroup analyses, one each for restaurants and lodging, by using the LCC spreadsheet described in chapter 8 of the NOPR, but with certain modifications. The input for business type was fixed to the identified subgroup, which ensured that the discount rates and electricity price rates associated with only that subgroup were selected in the Monte Carlo simulations (see chapter 8 of the NOPR TSD). Another major change from the LCC analysis was an added assumption that the subgroups do not have access to national capital markets, which results in higher discount rates for the subgroups. The higher discount rates lead the subgroups valuing more highly upfront equipment purchase costs relative to the future operating cost savings. The LCC subgroup analysis is described in chapter 8 of the NOPR TSD.
Table V.26 presents the comparison of mean LCC savings for the small business subgroup in foodservice sector with the national average values (LCC savings results from chapter 8 of the NOPR TSD). For almost all TSLs in all equipment classes, the LCC savings for the small business subgroup are lower than the national average values. The exception is the TSL 5 result for SCU-A-Small-C. Table V.27 presents the percentage change in LCC savings compared to national average values. DOE modeled all equipment classes in this analysis, although DOE believes it is likely that the very large equipment classes are not commonly used in foodservice establishments. For TSLs 1 through 3, the differences range from −2 percent to −6 percent. For all but three equipment classes in Table V.27, the percentage decrease in LCC savings is less than 10 percent for all TSLs. For SCU-W-Large-B, the TSL 4 and 5 differences were −11 percent. SCU-A-Small-B, the TSL 4 and 5 differences were −17 percent. For IMH-W-Small-B, the TSL 5 difference is −37 percent.
Table V.28 presents the comparison of median PBPs for the small business subgroup in foodservice sector with national median values (median PBPs from chapter 8 of the NOPR TSD). The PBP values are shorter for the small business subgroup in all cases. This arises because the first-year operating cost savings—which are used for payback period—are higher leading to a shorter payback, but given their higher discount rates, these customers value future savings less, leading to lower LCC savings. First-year savings are higher because the foodservice electricity prices are higher than the average of all classes.
Table V.29 presents the comparison of mean LCC savings for the small business subgroup in lodging sector (hotels and casinos) with the national average values (LCC savings results from chapter 8 of the NOPR TSD). Table V.30 presents the percentage change in LCC savings of the lodging sector customer subgroup to national average values. For lodging sector small business, LCC savings are lower across the board. For TSLs 1 through 3, the lodging subgroup LCC savings range from 9 to 13 percent lower. The reason for this is that the energy price for lodging is slightly lower than the average of all commercial business types (97 percent of the average). This combined with a higher discount rate reduces the nominal value of future operating and maintenance benefits as well as the present value of the benefits, thus resulting in lower LCC savings.
Table V.31 presents the comparison of median PBPs for small business subgroup in the lodging sector with national median values (median PBPs from chapter 8 of the NOPR TSD). The PBP values are slightly higher in the lodging small business subgroup in all instances. As noted above, the energy savings would be lower in nominal terms than a national average Thus, the slightly lower median PBP appears to be a result of a narrower electricity saving results distribution that is close to but below the national average.
DOE performed an MIA to estimate the impact of amended energy conservation standards on manufacturers of automatic commercial ice makers. The following section describes the expected impacts on manufacturers at each TSL. Chapter 12 of the NOPR TSD explains the analysis in further detail.
The following tables depict the financial impacts (represented by changes in INPV) of amended energy conservation standards on manufacturers of automatic commercial ice makers as well as the conversion costs that DOE estimates manufacturers would incur for all equipment classes at each TSL. To evaluate the range of cash flow impacts on the commercial ice maker industry, DOE used two different
To assess the lower (less severe) end of the range of potential impacts, DOE modeled a preservation of gross margin percentage markup scenario, in which a uniform “gross margin percentage” markup is applied across all efficiency levels. In this scenario, DOE assumed that a manufacturer's absolute dollar markup would increase as production costs increase in the amended energy conservation standards case. Manufacturers have indicated that it is optimistic to assume that they would be able to maintain the same gross margin percentage markup as their production costs increase in response to a new or amended energy conservation standard, particularly at higher TSLs.
To assess the higher (more severe) end of the range of potential impacts, DOE modeled the preservation of the EBIT markup scenario, which assumes that manufacturers would not be able to preserve the same overall gross margin, but instead cut their markup for marginally compliant products to maintain a cost competitive product offering and keep the same overall level of EBIT as in the base case. The two tables below show the range of potential INPV impacts for manufacturers of automatic commercial ice makers. The first table reflects the lower bound of impacts (higher profitability) and the second represents the upper bound of impacts (lower profitability).
Each scenario results in a unique set of cash flows and corresponding industry values at each TSL. In the following discussion, the INPV results refer to the sum of discounted cash flows through 2047, the difference in INPV between the base case and each standards case, and the total industry conversion costs required for each standards case.
Beyond impacts on INPV, DOE includes a comparison of free cash flow between the base case and the standards case at each TSL in the year before amended standards take effect to provide perspective on the short-run cash flow impacts in the discussion of the results below.
At TSL 1, DOE estimates impacts on INPV for manufacturers of automatic commercial ice makers to range from −$8.4 million to −$8.7 million, or a change in INPV of −8.2 percent to −8.5 percent. At this TSL, industry free cash flow is estimated to decrease by approximately 61 percent to $3.3 million, compared to the base-case value of $8.4 million in the year before the compliance date (2017).
DOE estimates that approximately 40 percent of all batch commercial ice makers and 30 percent of all continuous commercial ice makers on the market will require redesign to meet standards at TSL 1. Additionally, for both batch and continuous products, the number of products requiring redesign at this TSL is commensurate with each manufacturer's estimated market share. Twelve manufacturers, including three small businesses, produce equipment that complies with the efficiency levels specified at TSL 1.
At TSL 1, the majority of efficiency gains could be made through swapping purchased components for higher efficiency equivalents. It is expected that very few evaporators and condensers are affected at TSL 1, leading to very low expected industry capital conversion costs totaling only $0.4 million. However, moderate product conversion costs of $17.0 million are expected, as redesigned units will require low levels of engineering design labor, as well as testing for equipment certification.
At TSL 2, DOE estimates impacts on INPV for manufacturers of automatic commercial ice makers to range from −$12.8 million to −$13.6 million, or a change in INPV of −12.6 percent to −13.4 percent. At this TSL, industry free cash flow is estimated to decrease by approximately 97 percent to $0.2 million, compared to the base-case
At TSL 2, total conversion costs increase to $26.6 million, 53 percent higher than those incurred by industry at TSL 1. DOE estimates that approximately 58 percent of all units on the market will require redesign to meet the standards outlined at TSL 2. As with TSL 1, for batch and continuous commercial ice makers, the number of products requiring redesign at this TSL is largely commensurate with each manufacturer's estimated market share. Ten manufacturers, including three small businesses, produce equipment that complies with the efficiency levels specified at TSL 2.
The majority of redesigns still rely on switching to higher efficiency components, but a limited number of units are expected to require more complex system redesigns including the evaporator and condenser. The increased, but moderate, complexity of these redesigns causes product conversion costs to grow at a slightly higher rate than the additional number of units requiring redesign, resulting in industry-wide product conversion costs totaling $25.4 million. Capital conversion costs continue to remain relatively low at $1.2 million, as most design options considered at TSL 2 can be integrated into production without changes to manufacturing capital.
At TSL 3, DOE estimates impacts on INPV for manufacturers of automatic commercial ice makers to range from −$20.9 million to −$23.9 million, or a change in INPV of −20.5 percent to −23.5 percent. At this TSL, industry free cash flow is estimated to decrease by approximately 180 percent to −$6.7 million, compared to the base-case value of $8.4 million in the year before the compliance date (2017).
At TSL 3, total conversion costs grow significantly to $42.2 million, an increase of 59 percent over those incurred by manufacturers at TSL 2. DOE estimates that approximately 88 percent of all batch products and 75 percent of all continuous products on the market will require redesign to meet this TSL. Six of the 12 manufacturers of batch equipment currently produce batch commercial ice makers that comply with the efficiency levels specified at TSL 3. This includes one small business manufacturer. In contrast, all six manufacturers of continuous commercial ice makers identified produce products that comply with the efficiency levels specified at TSL 3.
The majority of redesigns necessary to meet the standards at TSL 3 involve more complex changes to the evaporator and condenser systems. These complex redesigns result in product conversion costs increasing at a rate higher than simply the additional number of units that require redesign. At TSL 3, the resulting industry product conversion costs total $38.3 million. Additionally, capital conversion costs jump significantly to $3.9 million, as evaporator and condenser redesigns spur investments in tooling for both of these components and the surrounding enclosure.
At TSL 4, DOE estimates impacts on INPV for manufacturers of automatic commercial ice makers to range from −$19.6 million to −$30.5 million, or a change in INPV of −19.2 percent to −30.0 percent. At this TSL, industry free cash flow is estimated to decrease by approximately 227 percent to −$10.7 million, compared to the base-case value of $8.4 million in the year before the compliance date (2017).
At TSL 4, total conversion costs grow to $51.2 million. Relative to the change between TSLs 2 and 3, the increases in conversion costs at TSL 4 are smaller as the percentage of batch and continuous units requiring redesign grows to 96 percent and 77 percent, respectively. These fractions are up from 88 percent and 75 percent, respectively, at TSL 3. Only two manufacturers, including one small business manufacturer, currently produce batch commercial ice makers that comply with the efficiency levels specified at TSL 4. In contrast, all six manufacturers of continuous commercial ice makers identified produce products that comply with the efficiency levels specified at TSL 4.
With very few additional units needing redesigns, costs incurred are mainly incremental, and account for the increasing complexity of condenser and evaporator redesigns. Product conversion costs grow to $44.8 million, 17 percent above those at TSL 3. However, the increasing complexity of redesign does incur greater capital conversion costs, which grow to $6.4 million as additional capital investments are required to modify production lines to manufacture these more complex designs.
At TSL 5, DOE estimates impacts on INPV for manufacturers of automatic commercial ice makers to range from −$19.9 million to −$32.6 million, or a change in INPV of −19.5 percent to −32.0 percent. At this TSL, industry free cash flow is estimated to decrease by approximately 243 percent to −$12.0 million, compared to the base-case value of $8.4 million in the year before the compliance date (2017).
As with TSL 4, only two manufacturers, including one small business manufacturer, currently produce batch commercial ice makers that comply with the efficiency levels specified at TSL 5. For manufacturers of continuous commercial ice makers, this number drops from six to four. As compared to the previous increases in required efficiency between TSLs, the changes between TSL 4 and TSL 5 are minimal. As a result, total conversion costs grow only slightly, rising 6 percent to $54.2 million. This consists of $46.9 million in product conversion costs and $7.3 million in capital conversion costs.
DOE used the GRIM to estimate the domestic labor expenditures and number of domestic production workers in the base case and at each TSL from 2013 to 2047. DOE used statistical data from the most recent U.S Census Bureau's “Annual Survey of Manufactures,” the results of the engineering analysis, and interviews with manufacturers to determine the inputs necessary to calculate industry-wide labor expenditures and domestic employment levels. Labor expenditures for the manufacture of a product are a function of the labor intensity of the product, the sales volume, and an assumption that wages in real terms remain constant.
In the GRIM, DOE used the labor content of each product and the manufacturing production costs from the engineering analysis to estimate the annual labor expenditures in the automatic commercial ice maker industry. DOE used information gained through interviews with manufacturers to estimate the portion of the total labor expenditures that is attributable to domestic labor.
The production worker estimates in this section cover workers only up to the line-supervisor level who are directly involved in fabricating and assembling automatic commercial ice makers within an original equipment manufacturer (OEM) facility. Workers performing services that are closely associated with production operations, such as material handling with a forklift, are also included as production labor.
The employment impacts shown in Table V.34 represent the potential production employment that could result following new and amended energy conservation standards. The upper end of the results in this table estimates the total potential increase in the number of production workers after amended energy conservation standards. To calculate the total potential increase, DOE assumed that manufacturers continue to produce the
DOE estimates that in the absence of amended energy conservation standards, there would be 268 domestic production workers involved in manufacturing automatic commercial ice makers in 2018. Using 2011 Census Bureau data and interviews with manufacturers, DOE estimates that approximately 84 percent of automatic commercial ice makers sold in the United States are manufactured domestically. Table V.34 shows the range of the impacts of potential amended energy conservation standards on U.S. production workers in the automatic commercial ice maker industry.
All examined TSLs show relatively minor impacts on domestic employment levels relative to total industry employment. At all TSLs, most of the design options analyzed by DOE do not greatly alter the labor content of the final product. For example, the use of higher efficiency compressors or fan motors involve one-time changes to the final product, but do not significantly change the number of steps required for the final assembly. One manufacturer suggested that their domestic production employment levels would only change if market demand contracted following higher overall prices. However, more than one manufacturer suggested that where they already have overseas manufacturing capabilities, they would consider moving additional manufacturing to those facilities if they felt the need to offset a significant rise in materials costs. Provided the changes in materials costs do not support the relocation of manufacturing facilities, one would expect only modest changes to domestic manufacturing employment balancing additional requirements for assembly labor with the effects of price elasticity.
According to the majority of automatic commercial ice maker manufacturers interviewed, amended energy conservation standards that require modest changes to product efficiency will not significantly affect manufacturers' production capacities. Any redesign of automatic commercial ice makers would not change the fundamental assembly of the equipment, but manufacturers do anticipate some potential for additional lead time immediately following standards associated with changes in sourcing of higher efficiency components, which may be supply constrained.
One manufacturer cited the possibility of a 3- to 6-month shutdown in the event that amended standards were set high enough to require retooling of their entire product line. Most of the design options being evaluated are already available on the market as product options. Thus, DOE believes that short of widespread retooling, manufacturers would be able to maintain manufacturing capacity levels and continue to meet market demand under amended energy conservation standards.
Small business, low volume, and niche equipment manufacturers, and manufacturers exhibiting a cost structure substantially different from the industry average could be affected disproportionately. As discussed in section IV.J, using average cost assumptions to develop an industry cash flow estimate is inadequate to assess differential impacts among manufacturer subgroups.
For automatic commercial ice makers, DOE identified and evaluated the impact of amended energy conservation standards on one subgroup: small manufacturers. The SBA defines a “small business” as having 750 employees or less for NAICS 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing,” which includes ice-making machinery manufacturing. Based on this definition, DOE identified seven manufacturers in the automatic commercial ice makers industry that are small businesses.
For a discussion of the impacts on the small manufacturer subgroup, see the regulatory flexibility analysis in section VI.B of this notice and chapter 12 of the NOPR TSD.
While any one regulation may not impose a significant burden on manufacturers, the combined effects of recent or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to equipment efficiency.
During previous stages of this rulemaking, DOE identified a number of requirements in addition to amended energy conservation standards for automatic commercial ice makers. The following section briefly addresses comments DOE received with respect to cumulative regulatory burden and summarizes other key related concerns that manufacturers raised during interviews.
Several manufacturers commented that they had made substantial investments in order to comply with the previous Federal energy conservation standards for batch style automatic commercial ice makers, which took effect in January 2010. While DOE acknowledges the significant investment on the part of industry, because the proposed compliance date for new and amended standards is 2018, there should be no direct overlap of compliance costs from either standard. The residual financial impact of the previous energy conservation standards manifest themselves in the 2018 standards MIA as the prevailing industry conditions absent new or amended energy conservation standards. This serves as the basis for the base-case INPV.
Multiple manufacturers expressed concerns about the burden CC&E would impose on the automatic commercial ice maker industry. CC&E requires testing and compliance for a wide array of equipment offerings. One manufacturer cited the increase in testing burden associated with the DOE's new definition of “basic” model, which has contributed significantly to the number of models considered to be basic. Manufacturers worry that testing each variation would present a significant testing burden, especially for small business manufacturers.
In addition to costs associated with DOE CC&E requirements, manufacturers cited an array of other certifications as being an additional and substantial burden. Such certifications include codes and standards developed by American Society of Mechanical Engineers (ASME), which include standards for compressors, fasteners, flow measurement, nuclear, environmental control, piping, pressure vessels, pumps, storage tanks, and more.
DOE understands that testing and certification requirements may have a significant impact on manufacturers, and the CC&E burden is identified as a key issue in the MIA. DOE also understands that CC&E requirements can be particularly onerous for manufacturers producing low volume or highly customized equipment. Regarding other certification programs, the DOE again acknowledges the potential burden associated with recertification. However, DOE also recognizes that these programs are voluntary.
Some manufacturers expressed concerns regarding potential conflicts with the ENERGY STAR certification program. Manitowoc publicly commented that certification by the ENERGY STAR program is very important to their customers for a variety of reasons including the potential for utility rebates and LEED certification. Manitowoc went on to say that if DOE's energy efficiency standard level is raised to the max-tech level, there would be no room for the ENERGY STAR classification and that this could be highly disruptive to the industry (Manitowoc, No. 42 at pp. 15-16). Due to the clear market value of the ENERGY STAR program, manufacturers expressed concern about the additional testing burdens associated with having to re-certify products, or alternatively, having to forfeit market share by offering products that are not ENERGY STAR certified.
DOE realizes that the cumulative effect of several regulations on an industry may significantly increase the burden faced by manufacturers that need to comply with multiple regulations and certification programs from different organizations and levels of government. However, DOE notes that certain standards, such as ENERGY STAR, are optional for manufacturers.
Manufacturers also expressed concerns regarding the additional burden caused by other Federal regulations, including the upcoming amended energy conservation standards for residential refrigerators and freezers, commercial refrigeration equipment, walk-in coolers and freezers, miscellaneous residential refrigeration products, and cooking products.
DOE recognizes the additional burden faced by manufacturers that produce both automatic commercial ice makers in combination with one or many of the above-mentioned products. Companies that produce a wide range of regulated equipment may be faced with more capital and equipment design development expenditures than competitors with a narrower scope of production. DOE does attempt to quantify the cumulative burden of Federal energy conservation standards on manufacturers in its manufacturer impact analysis (see chapter 12 of TSD). However, DOE cannot consider the quantitative impacts of amended standards that have not yet been finalized, such as those for walk-in coolers and walk-in freezers.
Relating to the CEC codes and standards, one manufacturer noted California's 2020 energy policy goals, including the reduction of greenhouse gas emissions to 1990 levels, as a source of additional burden for automatic commercial ice maker manufacturers. Manufacturers also added that the lead limit guidelines (see, for example, section 4-101.13(C) of the Food Code 2013)
Finally, one manufacturer noted additional burden associated with the European Union (EU) Restriction on Hazardous Substances Directive (RoHS), which restricts the use of six hazardous materials, including lead, mercury, and cadmium, in the manufacture of various types of electronic and electrical equipment.
DOE discusses these and other requirements, and includes the full details of the cumulative regulatory burden analysis, in chapter 12 of the NOPR TSD.
DOE estimated the NES by calculating the difference in annual energy consumption for the base-case scenario and standards-case scenario at each TSL for each equipment class and summing up the annual energy savings for the automatic commercial ice maker equipment purchased during the 30-year 2018 to 2047 analysis period. Energy impacts include the 30-year period, plus the life of equipment purchased in the last year of the analysis, or roughly 2018 to 2057. The energy consumption calculated in the NIA is full-fuel-cycle (FFC) energy, which quantifies savings beginning at the source of energy production. DOE also reports primary or source energy that takes into account losses in the generation and transmission of electricity. FFC and primary energy are discussed in section IV.H.
Table V.35 presents the source NES for all equipment classes at each TSL and the sum total of NES for each TSL. Table V.36 presents the energy savings at each TSL for each equipment class in the form of percentage of the cumulative energy use of the equipment stock in the base-case scenario.
Table V.37 presents energy savings at each TSL for each equipment class with the FFC adjustment. The NES increases from 0.073 quads at TSL 1 to 0.401 quads at TSL 5.
Circular A-4 requires agencies to present analytical results, including separate schedules of the monetized benefits and costs that show the type and timing of benefits and costs. Circular A-4 also directs agencies to consider the variability of key elements underlying the estimates of benefits and costs. For this rulemaking, DOE undertook a sensitivity analysis using 9 rather than 30 years of product shipments. The choice of a 9-year period is a proxy for the timeline in EPCA for the review of certain energy conservation standards and potential revision of and compliance with such revised standards.
DOE estimated the cumulative NPV to the Nation of the total savings for the customers that would result from potential standards at each TSL. In accordance with OMB guidelines on regulatory analysis (OMB Circular A-4, section E, September 17, 2003), DOE calculated NPV using both a 7-percent and a 3-percent real discount rate. The 7-percent rate is an estimate of the average before-tax rate of return on private capital in the U.S. economy, and reflects the returns on real estate and small business capital, including corporate capital. DOE used this discount rate to approximate the opportunity cost of capital in the private sector, because recent OMB analysis has found the average rate of return on capital to be near this rate. In addition, DOE used the 3-percent rate to capture the potential effects of amended standards on private consumption. This rate represents the rate at which society discounts future consumption flows to their present value. It can be approximated by the real rate of return on long-term government debt (
Table V.39 and Table V.40 show the customer NPV results for each of the TSLs DOE considered for automatic commercial ice makers at both 7-percent and 3-percent discount rates. In each case, the impacts cover the expected lifetime of equipment purchased from 2018-2047. Detailed NPV results are presented in chapter 10 of the NOPR TSD.
The NPV results at a 7-percent discount rate for TSL 5 were negative for three equipment classes and significantly lower than the TSL 3 results for several other classes. This is consistent with the results of LCC analysis results for TSL 5, which showed significant increase in LCC and significantly higher PBPs that were in some cases greater than the average equipment lifetimes. Efficiency levels for TSL 4 were chosen to correspond to the highest efficiency level with a positive NPV for all classes at a 7-percent discount rate. Similarly, the criteria for choice of efficiency levels for TSL 3, TSL 2, and TSL 1 were such that the NPV values for all the equipment classes show positive values. The criterion for TSL 3 was to select efficiency levels with the highest NPV at a 7-percent discount rate. Consequently, the total NPV for automatic commercial ice makers was highest for TSL 3, with a value of $0.791 billion (2012$) at a 7-percent discount rate. TSL 4 showed the second highest total NPV, with a value of $0.484 billion (2012$) at a 7-percent discount rate. TSL 1, TSL 2 and TSL 5 have a total NPV lower than TSL 3 or 4.
The NPV results based on the aforementioned 9-year analysis period are presented in Table V.41 and Table V.42. The impacts are counted over the lifetime of equipment purchased in 2018-2026. As mentioned previously, this information is presented for informational purposes only and is not indicative of any change in DOE's analytical methodology or decision criteria.
In analyzing energy-saving design options for batch type ice makers, one option had the additional impact of reducing potable water usage for some types of batch type ice makers. The potable water savings are identified on Table V.43.
In addition to the direct impacts on manufacturing employment discussed in section V.B.2, DOE develops general estimates of the indirect employment impacts of proposed standards on the economy. As discussed above, DOE expects amended energy conservation standards for automatic commercial ice makers to reduce energy bills for commercial customers, and the resulting net savings to be redirected to other forms of economic activity. DOE also realizes that these shifts in spending and economic activity by automatic commercial ice maker owners could affect the demand for labor. Thus, indirect employment impacts may result from expenditures shifting between goods (the substitution effect) and changes in income and overall expenditure levels (the income effect) that occur due to the imposition of amended standards. These impacts may affect a variety of businesses not directly involved in the decision to make, operate, or pay the utility bills for automatic commercial ice makers. To estimate these indirect economic effects, DOE used an input/output model of the U.S. economy using U.S. Department of Commerce, Bureau of Economic Analysis (BEA) and BLS data (as described in section IV.N of this notice; see chapter 16 of the NOPR TSD for more details).
In this input/output model, the dollars saved on utility bills from more-efficient automatic commercial ice makers are concentrated in economic sectors that create more jobs than are lost in electric and water utilities sectors when spending is shifted from electricity and/or water to other products and services. Thus, the proposed amended energy conservation standards for automatic commercial ice makers are likely to slightly increase the net demand for labor in the economy. However, the net increase in jobs might be offset by other, unanticipated effects on employment. Neither the BLS data nor the input/output model used by DOE includes the quality of jobs. As shown in Table V.44, DOE estimates that net indirect employment impacts from a proposed automatic commercial ice makers amended standard are small relative to the national economy.
In performing the engineering analysis, DOE considers design options that would not lessen the utility or performance of the individual classes of equipment. (42 U.S.C. 6295(o)(2)(B)(i)(IV) and 6316(e)(1)) As presented in the screening analysis (chapter 4 of the NOPR TSD), DOE eliminates from consideration any design options that reduce the utility of the equipment. For this notice, DOE proposes that none of the TSLs considered for automatic commercial ice makers reduce the utility or performance of the equipment.
EPCA directs DOE to consider any lessening of competition likely to result from amended standards. It directs the Attorney General of the United States (Attorney General) to determine in writing the impact, if any, of any lessening of competition likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V) and 6313(d)(4)) To assist the Attorney General in making such a determination, DOE provided the DOJ with copies of this notice and the TSD for review. During MIA interviews, domestic manufacturers indicated that foreign manufacturers have begun to enter the automatic commercial ice maker industry, but not in significant numbers. Manufacturers also stated that consolidation has occurred among automatic commercial ice makers manufacturers in recent years. Interviewed manufacturers believe that these trends may continue in this market even in the absence of amended standards.
DOE does not believe that amended standards would result in domestic firms moving their production facilities outside the United States. The majority of automatic commercial ice makers are manufactured in the United States and, during interviews, manufacturers in general indicated they would modify their existing facilities to comply with amended energy conservation standards.
An improvement in the energy efficiency of the equipment subject to today's NOPR is likely to improve the security of the Nation's energy system by reducing overall demand for energy. Reduced electricity demand may also improve the reliability of the electricity system. As a measure of this reduced demand, chapter 15 in the NOPR TSD presents the estimated reduction in national generating capacity for the TSLs that DOE considered in this rulemaking.
Energy savings from amended standards for automatic commercial ice makers could also produce environmental benefits in the form of reduced emissions of air pollutants and GHGs associated with electricity production. Table V.45 provides DOE's estimate of cumulative CO
As part of the analysis for this NOPR, DOE estimated monetary benefits likely to result from the reduced emissions of CO
Table V.46 presents the global value of CO
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated a range for the cumulative monetary value of the economic benefits associated with NO
The NPV of the monetized benefits associated with emission reductions can be viewed as a complement to the NPV of the customer savings calculated for each TSL considered in this NOPR. Table V.48 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced CO
Although adding the value of customer savings to the values of emission reductions provides a valuable perspective, the following should be considered: (1) the national customer savings are domestic U.S. customer monetary savings found in market transactions, while the values of emission reductions are based on estimates of marginal social costs, which, in the case of CO
EPCA allows the Secretary, in determining whether a proposed standard is economically justified, to consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII) and 6313(d)(4)) DOE considered LCC impacts on identifiable groups of customers, such as customers of different business types, who may be disproportionately affected by any amended national energy conservation standard level. DOE also considered the reduction in generation capacity that could result from the imposition of any amended national energy conservation standard level.
DOE carried out a RIA, as described in the NOPR TSD chapter 17, to study the impact of certain non-regulatory alternatives that may encourage customers to purchase higher efficiency equipment and, thus, achieve NES. The two major alternatives identified by DOE are customer rebates and customer tax credits. DOE surveyed the various rebate programs available in the United States. Typically, rebates are offered for commercial sector businesses that purchase energy-efficient automatic commercial ice makers, typically, machines that qualify either for ENERGY STAR or CEE certification. Rebates offered range from $40 to several hundred dollars, depending on the size and type of ice maker. Based on the incremental costs DOE estimated for TSL 1 (equivalent to the ENERGY STAR targets that were in existence until early in 2013), the rebates offered are sufficient to cover the incremental costs of meeting the ENERGY STAR levels. Given the range of rebates offered, DOE elected to model rebates of equivalent to 60 percent of the full incremental cost of the upgrades.
For the tax credits scenario, DOE did not find a suitable program to model the scenario. From a consumer perspective, the most important difference between rebate and tax credit programs is that a rebate can be obtained relatively quickly, whereas receipt of tax credits is delayed until income taxes are filed or a tax refund is provided by the IRS. As with consumer rebates, DOE assumed that consumer tax credits paid 60 percent of the incremental product price, but estimated a different response rate. The delay in reimbursement makes tax credits less attractive than rebates; consequently, DOE estimated a response rate that is 80 percent of that for rebate programs.
Table V.49 and Table V.50 show the NES and NPV, respectively, for the non-regulatory alternatives analyzed. For comparison, the table includes the results of the NES and NPV for TSL 3, the proposed energy conservation standard. Energy savings are expressed in quads in terms of primary or source energy, which includes generation and transmission losses from electricity utility sector.
As shown above, none of the policy alternatives DOE examined would achieve close to the amount of energy or monetary savings that could be realized under the proposed amended standard. Also, implementing either tax credits or customer rebates would incur initial and/or administrative costs that were not considered in this analysis.
DOE recognizes that when it considers amendments to the standards, it is subject to the EPCA requirement that any new or amended energy conservation standard for any type (or class) of covered product be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and 6313(d)(4)) In determining whether a proposed standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens to the greatest extent practicable, in light of the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i) and 6313(d)(4)) The new or amended standard must also result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B) and 6316(d)(4))
DOE considered the impacts of standards at each TSL, beginning with the maximum technologically feasible level, to determine whether that level met the evaluation criteria. If the max-tech level was not justified, DOE then considered the next most-efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
DOE discusses the benefits and/or burdens of each TSL in the following sections. DOE bases its discussion on quantitative analytical results for each TSL including NES, NPV (discounted at 7 and 3 percent), emission reductions, INPV, LCC, and customers' installed price increases. Beyond the quantitative results, DOE also considers other burdens and benefits that affect economic justification, including how technological feasibility, manufacturer costs, and impacts on competition may affect the economic results presented. Table V.51, Table V.52, Table V.53 and Table V.54 present a summary of the results of DOE's quantitative analysis for each TSL. Results in Table V.51 are impacts from equipment purchased in the period from 2018-2047. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification of certain customer subgroups that are disproportionately affected by the proposed standards. Section V.B.7 presents the estimated impacts of each TSL for these subgroups.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade-off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. This undervaluation suggests that regulation that promotes energy efficiency can produce significant net private gains (as well as producing social gains by, for example, reducing pollution). There is evidence that consumers undervalue future energy savings as a result of (1) a lack of information; (2) a lack of sufficient salience of the long-term or aggregate benefits; (3) a lack of sufficient savings to warrant delaying or altering purchases (
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an amended energy conservation standard, DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance energy efficiency standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
TSL 5 corresponds to the max-tech level for all the equipment classes and offers the potential for the highest cumulative energy savings through the analysis period from 2018 to 2047. The estimated energy savings from TSL 5 is 0.401 quads of energy, and potable water savings are 45.4 billion gallons. DOE projects a net positive NPV for customers valued at $0.370 billion at a 7-percent discount rate. Estimated emissions reductions are 20.4 MMt of CO
For TSL 5, with the exception of equipment class IMH-A-Small-C and SCU-A-Small-C, the mean LCC savings for all equipment classes are positive, implying a decrease in LCC, with the decrease ranging from $49 for the IMH-W-Small-B equipment class to $945 for the IMH-A-Large-B equipment class.
At TSL 5, manufacturers may experience a loss of INPV due to large investments in product development and manufacturing capital as nearly all products will need substantial redesign and existing production lines will need to be adapted to produce evaporators and cabinets, among other components, for the newly compliant designs. Where these designs may differ considerably from those currently available, this TSL also presents a significant testing burden. The projected change in INPV ranges from a decrease of $32.6 million to a decrease of $19.9 million depending on the chosen manufacturer markup scenario. The upper bound of a $19.9 million decrease in INPV is considered an optimistic scenario for manufacturers because it assumes they can maintain the same gross margin (as a percentage of revenue) on their sales. DOE recognizes the risk of large negative impacts on industry if manufacturers' expectations concerning reduced profit margins are realized. TSL 5 could reduce the INPV for automatic commercial ice makers by up to 32.0 percent if impacts reach the lower bound of the range, which represents a scenario in which manufacturers cannot fully mark up the increased equipment costs, and therefore cannot maintain the same overall gross margins (as a percentage of revenue) they would have in the base case.
In addition to the estimated impacts on INPV, the impacts on manufacturing capacity and competition are of concern at TSL 5. While more than half of the manufacturers who produce continuous products, already offer at least one product that complies with TSL 5, only two manufacturers currently produce batch commercial ice makers that comply with the efficiency levels specified at TSL 5. This includes one small business manufacturer whose niche products have among the very largest harvest capacities in their respective equipment classes and are sold in small quantities relative to the rest of the industry. In contrast to this small business manufacturer, the other manufacturer is Hoshizaki, which produces more mainstream batch products and commands substantial market share.
The concentration of current production of batch commercial ice makers at TSL 5 presents two issues. Hoshizaki holds intellectual property covering the design of the evaporator used in their batch equipment, which limits the range of possible alternative paths to achieving the efficiency levels for batch equipment specified at TSL 5. While the engineering analysis identified other means to achieve these high efficiencies, given this limitation on design options, other manufacturers expressed significant doubts regarding their ability to do so. Further, DOE's analysis indicates that these efficiency levels require the use of permanent magnet motors and, for batch equipment, drain water heat exchangers. DOE was able to identify only one supplier of the latter technology, whose design is patented. In addition, there is currently very limited use of permanent magnet motors in commercial ice makers; hence, motor suppliers would be required to develop and initiate production for a broad range of new motor designs suitable for automatic commercial ice makers. These needs could severely impact automatic commercial ice maker manufacturers' ability to procure the required components in sufficient quantities to supply the market.
Assuming the other paths to achieving these efficiency levels prove fruitful, TSL 5 would still require that every other manufacturer retool their entire batch equipment production lines. Further, DOE review of the efficiency levels of available equipment shows that only 13 percent of Hoshizaki's batch products meet the TSL 5 efficiency levels, suggesting that the vast majority of their production lines would also require redesign and retooling. In confidential interviews, one manufacturer cited the possibility of a 3-month to 6-month shutdown in the event that amended standards were set high enough to require retooling of their entire product line. Compounding this effect across the industry could severely impact manufacturing capacity in the interim period between the announcement of the standards and the compliance date.
After carefully considering the analysis results and weighing the benefits and burdens of TSL 5, DOE finds that at TSL 5, the benefits to the Nation in the form of energy savings and emissions reductions plus an increase of $0.370 billion in customer NPV are weighed against a decrease of up to 32.0 percent in INPV. While most individual customers purchasing automatic commercial ice makers built to TSL 5 standards would be better off than in the base case, most would face payback periods in excess of 3 years. The limited number of manufacturers currently producing batch commercial ice makers that meet this efficiency level is cause for additional concern. After weighing the burdens of TSL 5 against the benefits, DOE finds TSL 5 not to be economically justified. DOE does not propose to adopt TSL 5 in this rulemaking.
TSL 4, the next highest efficiency level, corresponds to the highest efficiency level with a positive NPV at a 7-percent discount rate for all equipment classes. The estimated energy savings from 2018 to 2047 are 0.380 quads of energy and 45.4 billion gallons of potable water—amounts DOE deems significant. At TSL 4, DOE projects an increase in customer NPV of $0.484 billion (2012$) at a 7-percent discount rate; estimated emissions reductions of 19.4 MMt of CO
At TSL 4, the mean LCC savings are positive for all equipment classes. As shown on Table V.52, mean LCC savings vary from $106 for SCU-A-Small-B to $945 for IMH-A-Large-B, which implies that, on average, customers will experience an LCC benefit. However, as shown on Table V.54, for 11 of the 12 classes, at least some fraction of the customers will experience net costs. Customers in 3 classes would experience net LCC costs of 30 percent or more, with the percentage ranging up to 49 percent for one equipment class. Median payback periods range from 1.9 years up to 4.8 years, with 7 of the 12 directly analyzed classes exhibiting payback periods over 3 years.
At TSL 4, the projected change in INPV ranges from a decrease of $30.5 million to a decrease of $19.6 million.
The impacts on manufacturing capacity and competition are of concern at TSL 4. While every manufacturer who produces continuous equipment offers at least one product that complies with TSL 4, only two manufacturers currently produce batch commercial ice makers that comply with the efficiency levels specified at TSL 4. This includes one small business manufacturer whose niche products have among the very largest harvest capacities in their respective equipment classes and are sold in small quantities relative to the rest of the industry. In contrast to this small business manufacturer, the other manufacturer is a larger manufacturer which produces more mainstream batch products and commands a substantial market share.
The concentration of current production at TSL 4 presents two issues. One large manufacturer holds intellectual property covering the evaporator design used in their batch equipment, which in turn limits the range of possible alternative paths to achieving the efficiency levels specified at TSL 4. While the engineering analysis identified other means to achieve these high efficiencies, given this limitation on design options, other manufacturers expressed significant doubts regarding their ability to do so. Further, DOE's analysis indicates that these efficiency levels require the use of permanent magnet motors and, for most batch equipment, drain water heat exchangers. DOE was able to identify only one supplier of the latter technology, whose design is patented. In addition, there is currently very limited use of permanent magnet motors in commercial ice makers; hence, motor suppliers would be required to develop and initiate production for a broad range of new motor designs suitable for automatic commercial ice makers. These needs could severely impact automatic commercial ice maker manufacturers' ability to procure the required components in sufficient quantities to supply the market.
Assuming other paths to achieving these efficiency levels prove fruitful, TSL 4 would still require that every other manufacturer retool their entire batch equipment production lines. As noted above, only 2 manufacturers currently produce equipment that meets TSL 4 efficiency levels, one of which is a large manufacturer. DOE's review of the efficiency levels of available equipment shows that only 14 percent of the large manufacturer's batch products meet the TSL 4 efficiency levels, suggesting the vast majority of their production lines would also require redesign and retooling. In confidential interviews, another manufacturer cited the possibility of a 3-month to 6-month shutdown in the event that amended standards were set high enough to require retooling of their entire product line. Compounding this effect across the industry could severely impact manufacturing capacity in the interim period between the announcement of the standards and the compliance date.
After carefully considering the analysis results and weighing the benefits and burdens of TSL 4, DOE finds that at TSL 4, the benefits to the Nation in the form of energy savings and emissions reductions plus an increase of $0.484 billion in customer NPV are weighed against a decrease of up to 30.0 percent in INPV. While most individual customers purchasing automatic commercial ice makers built to TSL 4 standards would be better off than in the base case, customers in 7 of 12 equipment classes would face payback periods in excess of 3 years. The limited number of manufacturers currently producing batch commercial ice makers that meet this efficiency level is cause for additional concern. After weighing the burdens of TSL 4 against the benefits, DOE finds TSL 4 not to be economically justified. DOE does not propose to adopt TSL 4 in this notice.
At TSL 3, the next highest efficiency level, estimated energy savings from 2018 to 2047 are 0.286 quads of primary energy and water savings are 45.4 billion gallons—amounts DOE considers significant. TSL 3 was defined as the set of efficiencies with the highest NPV for each analyzed equipment class. At TSL 3, DOE projects an increase in customer NPV of $0.791 billion at a 7-percent discount rate, and an increase of $1.751 billion at a 3-percent discount rate. Estimated emissions reductions are 14.6 MMt of CO
At TSL 3, nearly all customers for all equipment classes are shown to experience positive LCC savings. As shown on Table V.54, the percent of customers experiencing a net cost rounds to 0 in all but two classes—SCU-A-Large-B with 0.1 percent and IMH-W-Small-B with 3.5 percent of customers exhibiting a net cost. The payback period for IMH-W-Small-B is 2.3 years, while for all other equipment classes the median payback periods are 1.9 years or less. LCC savings range from $146 for SCU-A-Small-C to over $1,100 for IMH-A-Large-B.
At TSL 3, the projected change in INPV ranges from a decrease of $23.9 million to a decrease of $20.9 million. The three largest manufacturers, who together represent an estimated 95 percent of the market, currently produce a combined 38 compliant batch products at TSL 3. Many of the gains in efficiency needed to meet the standards proposed at TSL 3 can be achieved using higher efficiency components as opposed to the redesign of systems manufactured in-house and as such require little change to existing manufacturing capital. The lack of green-field redevelopment or significant recapitalization mitigates the risk of disruption to manufacturing capacity in the interim period between announcement of the energy conservation standards and the compliance date.
At TSL 3, the monetized CO
Nearly all customers are expected to experience net benefits from equipment built to TSL 3 levels. The payback periods for TSL 3 are expected to be 2.3 years, or less.
After carefully considering the analysis results and weighing the benefits and burdens of TSL 3, DOE believes that setting the standards for automatic commercial ice makers at TSL 3 represents the maximum improvement in energy efficiency that is technologically feasible and
Therefore, DOE proposes the adoption of amended energy conservation standards for automatic commercial ice makers at TSL 3.
DOE specifically seeks comment on the magnitude of the estimated decline in INPV at TSL 3 compared to the baseline, and whether this impact could risk industry consolidation. DOE also specifically requests comment on whether DOE should adopt TSL 4 or 5 and why., DOE may reexamine the proposed level depending on the nature of the information it receives during the comment period and adjust its final levels in response to that information.
Section 1(b)(1) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), requires each agency to identify the problem that it intends to address, including, where applicable, the failures of private markets or public institutions that warrant new agency action, as well as to assess the significance of that problem. The problems that today's standards address are as follows:
1. There is a lack of consumer information and/or information processing capability about energy efficiency opportunities in the automatic commercial ice maker market.
2. There is asymmetric information (one party to a transaction has more and better information than the other) and/or high transactions costs (costs of gathering information and effecting exchanges of goods and services).
3. There are external benefits resulting from improved energy efficiency of automatic commercial ice makers that are not captured by the users of such equipment. These benefits include externalities related to environmental protection and energy security that are not reflected in energy prices, such as reduced emissions of GHGs.
In addition, DOE has determined that today's regulatory action is an “economically significant regulatory action” under section 3(f)(1) of Executive Order 12866. Accordingly, section 6(a)(3) of the Executive Order requires that DOE prepare an RIA on today's rule and that OIRA in OMB review this rule. DOE presented to OIRA for review the draft rule and other documents prepared for this rulemaking, including the RIA. DOE has included these documents in the rulemaking record. The assessments prepared pursuant to Executive Order 12866 can be found in the TSD for this rulemaking.
DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011. 76 FR 3821 (Jan. 21, 2011). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, ORIA has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, DOE believes that today's NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, benefits justify costs and that net benefits are maximized.
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of automatic commercial ice makers, the SBA has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. 65 FR 30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 (Sept. 5, 2000) and codified at 13 CFR part 121. The size standards are listed by NAICS code and industry description and are available at:
Manufacturing of automatic commercial ice makers is classified under NAICS 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing,” which includes ice-making machinery manufacturing. The SBA sets a threshold of 750 employees or less for an entity to be considered as a small business in this category.
During its market survey, DOE used available public information to identify potential small manufacturers. DOE's research involved industry trade association membership directories (including AHRI), public databases (
DOE identified seven small domestic businesses manufacturers of automatic commercial ice makers operating in the United States. DOE contacted each of these companies, but only one accepted the invitation to participate in a confidential manufacturer impact analysis interview with DOE contractors.
DOE estimates that the seven small domestic manufacturers of automatic commercial ice makers identified by DOE account for approximately 5 percent of industry shipments. While small business manufacturers of automatic commercial ice makers have small overall market share, some hold substantial market share in specific equipment classes. Several of these smaller firms specialize in producing industrial ice machines and the covered equipment they manufacture are extensions of existing product lines that fall within the range of capacity covered by this rule. Others serve niche markets. Most have substantial portions of their business derived from equipment outside the scope of this rulemaking, but are still considered small businesses based on the SBA limits for number of employees.
At the proposed level, small business manufacturers of automatic commercial ice makers are expected to face negative impacts on INPV that are more than three times as severe as those felt by the industry at large: A loss of 78.6 percent of INPV for small businesses alone as compared to a loss of 23.5 percent for the industry at large. Where conversion costs are driven by the number of platforms requiring redesign at a particular standard level, small business manufacturers may be disproportionately affected. Product conversion costs including the investments made to redesign existing equipment to meet new or amended standards or to develop entirely new compliant equipment, as well as industry certification costs, do not scale with sales volume. As small manufacturers' investments are spread over a much lower volume of shipments, recovering the cost of upfront investments is proportionately more difficult.
Similarly, capital conversion costs may disproportionately affect small business manufacturers of automatic commercial ice makers. Capital conversion costs are projected to be highest in the year preceding standards as manufacturers retrofit production lines to make compliant equipment. In this year, capital conversion costs are estimated to represent 97 percent of typical capital expenditures for small businesses, as compared to 34 percent for the industry as a whole. Where the covered equipment from several small manufacturers are adaptations of larger platforms with capacities above the 4,000 lb ice/24 hour threshold, it may not prove economical for them to retrofit an entire production line to meet standards that only affect one product.
In confidential interviews, manufacturers indicated that many design options evaluated in the engineering analysis (
To estimate how small manufacturers would be potentially impacted, DOE developed specific small business inputs and scaling factors for the GRIM. These inputs were scaled from those used in the whole industry GRIM using information about the product portfolios of small businesses and the estimated market share of these businesses in each equipment class. DOE used this information in the GRIM to estimate the annual revenue, EBIT, R&D expense, and capital expenditures for a typical small manufacturer and to model the impact on INPV. DOE then compared these impacts to those modeled for the industry at large. The results are shown on Table VI.1 and Table VI.2.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being promulgated today.
The primary alternatives to the proposed rule are the other TSLs besides the one being considered today, TSL 3. DOE explicitly considered the role of manufacturers, including small manufacturers, in its selection of TSL 3 rather than TSLs 4 or 5. Though higher TSLs result in greater energy savings for the country, they would place significant burdens on manufacturers. Chapter 12 of the NOPR TSD contains additional information about the impact of this rulemaking on manufacturers.
In addition to the other TSLs being considered, chapter 17 of the NOPR TSD and Section V.B.7 include reports on a regulatory impact analysis (RIA). For automatic commercial ice makers, the RIA discusses the following policy alternatives: (1) No change in standard; (2) customer rebates; (3) customer tax credits; (4) manufacturer tax credits; and (5) early replacement. While these alternatives may mitigate to some varying extent the economic impacts on small entities compared to the amended standards, DOE determined that the energy savings of these regulatory alternatives could be approximately one-third to one-half less than the savings that would be expected to result from adoption of the amended standard levels. Because of the significantly lower savings, DOE rejected these alternatives and proposes to adopt the amended standards set forth in this rulemaking.
However, DOE seeks comment and, in particular, data on the impacts of this rulemaking upon small businesses. (See Issue 10 under “Issues on Which DOE Seeks Comment” in section VII.E of this NOPR.)
Manufacturers of automatic commercial ice makers must certify to DOE that their equipment comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their equipment according to the DOE test procedures for automatic commercial ice makers, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial/industrial equipment, including automatic commercial ice makers. 76 FR 12422 (March 7, 2011). The collection-of-information requirement for the certification and recordkeeping is subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been approved by OMB under OMB Control Number 1910-1400. Public reporting burden for the certification is estimated to average 20 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Pursuant to the National Environmental Policy Act (NEPA) of 1969, (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR at 13735. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of today's proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) No further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a),(b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR at 12820. DOE's policy statement is also available at
Although today's proposed rule does not contain a Federal intergovernmental mandate, it may require expenditures of $100 million or more on the private sector. Specifically, the proposed rule will likely result in a final rule that could require expenditures of $100 million or more. Such expenditures may include: (1) Investment in research and development and in capital expenditures by automatic commercial ice makers manufacturers in the years between the final rule and the compliance date for the new standards; and (2) incremental additional expenditures by customers to purchase higher efficiency automatic commercial ice makers, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, DOE is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an alternative is inconsistent with law. As required by 42 U.S.C. 6295(o) and 6313(d), this proposed rule would establish energy conservation standards for automatic commercial ice makers that are designed to achieve the maximum improvement in energy efficiency that DOE has determined to be both technologically feasible and economically justified. A full discussion of the alternatives considered by DOE is presented in the “Regulatory Impact Analysis” section of the TSD for today's proposed rule.
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988), that this regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed today's NOPR under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the
DOE has tentatively concluded that today's regulatory action, which sets forth proposed energy conservation standards for automatic commercial ice makers, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on the proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (OSTP), issued its Final Information Quality Bulletin for Peer Review (the Bulletin). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer-reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the Bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions. 70 FR at 2667 (Jan. 14, 2005).
In response to OMB's Bulletin, DOE conducted formal in-progress peer reviews of the energy conservation standards development process and analyses and has prepared a Peer Review Report pertaining to the energy conservation standards rulemaking analyses. Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. The “Energy Conservation Standards Rulemaking Peer Review Report,” dated February 2007, has been disseminated and is available at the following Web site:
The time, date, and location of the public meeting are listed in the DATES and
Webinar registration information, participant instructions, and information about the capabilities available to webinar participants will be published on DOE's Web site at:
Participants are responsible for ensuring their systems are compatible with the webinar software.
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address shown in the
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 section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. 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 on the proceedings as well as on any 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 prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, 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 this rulemaking. 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 the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through regulations.gov cannot be claimed as CBI. Comments received through the Web site will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section below.
DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via mail or hand delivery/courier, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No facsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
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.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues.
EPCA requires that the amended standards established in this rulemaking must apply to equipment that is manufactured on or after 3 years after the final rule is published in the
For the NOPR analyses, DOE assumed a 3-year period to prepare for compliance. DOE requests comments on the January 1, 2018 effective date, and whether a January 1, 2018 effective date provides an inadequate period for compliance and what economic impacts would be mitigated by a later effective date.
DOE also requests comment on whether the 3-year period is adequate for manufacturers to obtain more efficient components from suppliers to meet proposed revisions of standards. More discussion on this topic can be found in Section IV.B.1.g of today's NOPR.
The utilization factor represents the percent of time that an ice maker actively produces ice. Ice maker usage is measured in terms of kilowatt-hours per 100 lb/24 hours, whereas subsequent analyses require annual energy usage in kilowatt-hours. Thus, a usage factor is required to translate the potential energy usage into estimated annual usage. In the Framework document, the Department presented a series of factors for each type of building that represents an ice maker market segment, and all were set to 0.5, meaning all building types would be modeled with a utilization factor indicating that equipment runs one-half of the time. The Stakeholders pointed out that not all building segments should be at 0.5, but DOE did not receive any data or information that DOE can use to differentiate the utilization factor by building type. DOE requests data for individual building types. More discussion on this topic can be found in Section IV.G.3 of today's NOPR.
For this notice, DOE chose continuous machine baselines at sufficiently high energy use levels that they exclude almost no equipment. DOE based the baselines on online data from the AHRI database. DOE requests comments on the development of continuous type equipment base efficiency levels and on the availability of data on which to create continuous machine baselines. More discussion on this topic can be found in Section IV.D.2.a of today's NOPR.
DOE requests comment on the screening analysis and, specifically, the design options DOE screened out of the rulemaking analysis.
DOE considered whether design options were technologically feasible; practicable to manufacture, install, or service; had adverse impacts on product utility or product availability; or had adverse impacts on health or safety. See Section IV.C of today's NOPR and chapter 4 of the NOPR TSD for further discussion of the screening analysis.
DOE seeks comments on the Maximum Technologically Feasible levels proposed in Table III.2 and Table III.3 of today's notice. More discussion on this topic can be found in Section IV.D.2.e of today's NOPR.
DOE identified three major distribution channels through which automatic commercial ice maker equipment is purchased by the end-user: (1) Manufacturer to end-user (direct channel); (2) manufacturer to wholesale distributor to end-user (wholesaler channel); and (3) manufacturer to distributor to dealer or contractor to end-user (contractor channel). DOE currently uses mechanical contractor data to estimate the contribution of local dealers or contactors to end-user prices. DOE requests specific input to improve the cost estimation for the local dealer or contractor component of markups. More discussion on this topic can be found in Section IV.E of today's NOPR.
For the NOPR analyses, DOE used an 8.5 years average life for all equipment classes, with analyses based on a lifetime distribution averaging 8.5 years. (TSD chapter 9 discusses the development of the distribution.) In comments on the preliminary analysis, one stakeholder stated that continuous machines might have shorter life spans. DOE requests specific information to determine whether continuous and batch types should be analyzed using different equipment life assumptions, and if so, what they would be. More discussion on this topic can be found in Section IV.G.8 of today's NOPR.
Stakeholders commented that higher efficiency equipment would incur additional installation costs when compared to the baseline equipment. DOE requests specificity with respect to this comment, with specific information on design options that will increase installation costs and specific information to enable DOE to adjust installation costs appropriately. More discussion on this topic can be found in Section IV.G.2.a of today's NOPR.
Stakeholders commented that some localities in the U.S. have instituted local ordinances or laws precluding installation of ice makers in open-loop configurations. DOE requests stakeholder assistance in quantifying the impact of local regulations on the prevalence of open-loop installations. More discussion on this topic can be found in Section IV.D.3.c of today's NOPR.
DOE's shipments forecast is based on a single snapshot of shipments by the type of equipment. Stakeholders at the preliminary analysis phase suggested that the equipment mix may be changing over time. DOE requests additional data concerning shipment trends/forecasts. More discussion on this topic can be found in Section IV.H.1 of today's NOPR.
One manufacturer reported that a previous round of standards required nearly all of the company's engineering resources for between 1 and 2 years. Where manufacturers may divert existing R&D resources to compliance related R&D efforts, DOE requests additional comment on the impact on innovation of compliance related R&D efforts. Specifically, DOE requests comment on how to quantify this impact on innovation. More discussion on this topic can be found in Section IV.J of today's NOPR.
Based on weighing of data, DOE is recommending TSL 3 for the new and amended automatic commercial ice maker standards. DOE recognizes that new and amended standards will have impacts on industry net present value results. DOE specifically seeks comment on the magnitude of the estimated decline in INPV at TSL 3 compared to the baseline, and what impact this may have on manufacturers. More discussion on this topic can be found in Section V.B.2 of today's NOPR.
During the Framework and February 2012 preliminary analysis public meetings, DOE received many comments regarding the potential impacts of amended energy conservation standards on small business manufacturers of automatic commercial ice makers. DOE incorporated this feedback into its analyses for the NOPR and has presented its results in this notice and the NOPR TSD. However, DOE seeks comment and, in particular, additional data, in its efforts to quantify the impacts of this rulemaking on small businesses. More discussion on this topic can be found in Section IV.J.3.d of today's NOPR.
DOE requests comment on whether there are features or attributes of the more energy-efficient automatic commercial ice makers, including any potential changes to the evaporator design that would result in changes to the ice style or changes in the chassis size, that manufacturers would produce to meet the standards in this proposed rule that might affect how they would be used by consumers. DOE requests comment specifically on how any such effects should be weighed in the choice of standards for the automatic commercial ice makers for the final rule. More discussion on this topic can be found in Section V.B.3 of today's NOPR.
For this rulemaking, DOE analyzed the effects of this proposal assuming that the automatic commercial ice makers would be available to purchase for 30 years and undertook a sensitivity analysis using 9 years rather than 30 years of product shipments. The choice of a 30-year period of shipments is consistent with the DOE analysis for other products and commercial equipment. The choice of a 9-year period is a proxy for the timeline in EPCA for the review of certain energy
DOE solicits comment on the application of the new SCC values used to determine the social benefits of CO
In the preliminary analysis, DOE found that some high-capacity RCU-RC-Large-C ice makers are solely designed to be used with compressor racks and the racks' associated condensers. DOE requests comment and supporting data on the overall market share of these units and any expected market trends. More discussion on this topic can be found in Section IV.B.1.f of today's NOPR.
Section V.A.1 of today's NOPR discusses the design options associated with each TSL, for each analyzed product class. DOE requests comment and data related to the required equipment size increases associated with the design options at each TSL levels. Chapter 5 of the NOPR TSD contains full descriptions of the design options and DOE's analyses for the equipment size increase associated with the design options selected. DOE also requests comments and data on the efficiency gains associated with each set of design options. Chapter 5 of the NOPR TSD contains DOE's analyses of the efficiency gains for each design option considered. Finally, DOE requests comment and data on any utility impacts associated with each set of design options, such as potential ice-style changes.
DOE requests comment and data on the viability of the proposed standard levels selected for batch-type ice makers with harvest capacities from 2,500 to 4,000 lb ice/24 hours. The proposed standard levels are discussed in Section V.A.2 of today's NOPR, and prior comments on standards for batch-type ice makers with harvest capacities from 2,500 to 4,000 lb ice/24 hours are discussed in Section IV.B.1.b of today's NOPR.
The Secretary of Energy has approved publication of today's proposed rule.
Administrative practice and procedure, Confidential business information, Energy conservation, Commercial equipment, Imports, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, DOE proposes to amend part 431 of chapter II of title 10, of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6317.
(a) All basic models of commercial ice makers must be tested for performance using the applicable DOE test procedure in § 431.134, be compliant with the applicable standards set forth in paragraphs (b) through (d) of this section, and be certified to the Department of Energy under 10 CFR part 429.
(b) Each cube type automatic commercial ice maker with capacities between 50 and 2,500 pounds per 24-hour period manufactured on or after January 1, 2010 and before [DATE THREE YEARS AFTER PUBLICATION OF FINAL RULE], shall meet the following standard levels:
(c) Each batch type automatic commercial ice maker with capacities between 50 and 4,000 pounds per 24-hour period manufactured on or after [DATE THREE YEARS AFTER
(d) Each continuous type automatic commercial ice maker with capacities between 50 and 4,000 pounds per 24-hour period manufactured on or after [DATE THREE YEARS AFTER PUBLICATION OF FINAL RULE], shall meet the following standard levels:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
This action proposes approval of, and regulations to implement, Framework Adjustment 51 to the Northeast Multispecies (Groundfish) Fishery Management Plan. This rule would set catch limits for groundfish stocks, revise the rebuilding programs for Gulf of Maine cod and American plaice, modify management measures for yellowtail flounder, and revise management measures for the U.S./Canada Management Area. Although not part of Framework 51, this action also proposes fishing year 2014 trip limits for the common pool fishery and announces 2014 accountability measures for windowpane flounder. This action is necessary to respond to updated scientific information and achieve the goals and objectives of the Groundfish Plan. The proposed measures are intended to help prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.
Comments must be received by April 1, 2014.
You may submit comments, identified by NOAA-NMFS-2014-0003, by any of the following methods:
• Electronic submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to
• Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope, “Comments on the Proposed Rule for Groundfish Framework Adjustment 51.”
Copies of Framework 51, its Regulatory Impact Review (RIR), a draft of the environmental assessment (EA) prepared for this action, and the Initial Regulatory Flexibility Analysis (IRFA) prepared by the New England Fishery Management Council are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The IRFA assesses the impacts of the proposed measures on small entities, and describes steps taken to minimize any significant economic impact on these entities. A summary of the IRFA is included in the Classification section of this proposed rule. The Framework 51 EA, RIR, and IRFA are also accessible via the Internet at
Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule should be submitted to the Regional Administrator at the address above and to the Office of Management and Budget by email at
Sarah Heil, Fishery Policy Analyst, phone: 978-281-9257.
The Groundfish Fishery Management Plan (Groundfish Plan) specifies management measures for 16 groundfish species in Federal waters off the New England and Mid-Atlantic coasts. Based on fish size, and the type of gear used to catch the fish, some of these species are managed as “small-mesh species,” and others are managed as “large-mesh species.” Small-mesh species include silver hake (whiting), red hake, offshore hake, and ocean pout. Of these species, silver hake (whiting), red hake, and offshore hake are managed under a separate small-mesh multispecies program. Large-mesh species include Atlantic cod, haddock, yellowtail flounder, American plaice, witch flounder, winter flounder, Acadian redfish, white hake, pollock, windowpane flounder, ocean pout, Atlantic halibut, and Atlantic wolffish. These large-mesh species are divided into 19 fish stocks based on their geographic distribution, and, along with ocean pout, are managed under the groundfish program.
The New England Fishery Management Council (Council) is required to set annual catch limits for each groundfish stock, along with accountability measures that help ensure the catch limits are not exceeded and, if they are, that help mitigate the overage. The Council develops annual or biennial management actions to set catch limits based on the best scientific information available and adjust management measures for the groundfish fishery that will help prevent overfishing, rebuild overfished stocks, and achieve optimum yield. For most groundfish stocks, the Council typically adopts catch limits for 3 years at a time. Although it is expected that the Council will adopt new catch limits every 2 years, specifying catch levels for a third year ensures there are default catch limits in place in the event that a management action is delayed. The Council sets catch limits annually for transboundary Georges Bank (GB) stocks that are jointly managed with Canada (GB yellowtail flounder, eastern GB cod, and eastern GB haddock), as described in more detail later in this rule.
Last year, the Council adopted, and we partially approved, Framework 50, which set fishing year (FY) 2013-2015 catch limits for all groundfish stocks, except for white hake and the U.S./Canada stocks. The Council has now developed and adopted Framework 51 in order to respond to new stock assessment information for white hake and the three U.S./Canada stocks. Based on updated information for other groundfish stocks, the Council has also adopted revised rebuilding programs for Gulf of Maine (GOM) cod and American plaice, as well as other changes to groundfish management measures that better meet the goals and objectives of the groundfish program.
This action proposes regulations to implement the measures in Framework
1. Revise the rebuilding programs for GOM cod and American plaice;
2. Set FY 2014 catch limits for the three U.S./Canada stocks;
3. Set FY 2014-2016 catch limits for white hake;
4. Adopt accountability measures for GB yellowtail flounder for the small-mesh fisheries;
5. Establish a U.S./Canada quota trading mechanism for FY 2014;
6. Modify the administration of eastern and western GB haddock sector allocations;
7. Revise the stratification used to estimate GB yellowtail flounder discards for monitoring sector catches; and
8. Prohibit possession of yellowtail flounder by limited access scallop vessels.
This action also proposes a number of other measures that are not part of Framework 51, but that may be considered under NMFS Regional Administrator authority provided by the Groundfish Plan. We are including these additional measures in conjunction with the Framework 51 proposed measures for expediency purposes. The additional measures proposed in this action are listed below.
•
•
•
The current rebuilding strategies for GOM cod and American plaice were adopted in 2004. The rebuilding program for GOM cod was scheduled to rebuild the stock by 2014, and the American plaice rebuilding program was scheduled to rebuild the stock by 2017. In 2012, updated scientific information indicated that neither stock could rebuild by its rebuilding end date, even in the absence of all fishing. As a result, we notified the Council that the stocks were not making adequate rebuilding progress, and that the Council was required to revise the rebuilding programs for both stocks within 2 years, or by May 1, 2014, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Magnuson-Stevens Act requires that overfished stocks be rebuilt as quickly as possible, not to exceed 10 years, while accounting for the needs to fishing communities.
In response to this requirement, this rule proposes to revise the rebuilding plans for GOM cod and American plaice. The minimum rebuilding time (T
Long-term catch projections for groundfish stocks tend to underestimate fishing mortality and overestimate stock biomass (see Appendix 5 to the 2012 groundfish assessment updates for more information:
The Council's default control rule for setting catch limits requires that catches be set based on 75% F
To help avoid this problem, the revised rebuilding end dates proposed in this action were calculated using an F
The proposed 10-year rebuilding strategy for GOM cod also accounts for additional uncertainty that results from the two different stock assessment models, which make it difficult to project how quickly the stock will rebuild. The most recent stock assessment for GOM cod, completed in December 2012, approved two different
Interpreting and developing a rebuilding program under the M
The rebuilding strategies proposed in Framework 51 would use the full 10 years, as allowed by the Magnuson-Stevens Act, even though rebuilding might be able to occur sooner. These strategies are intended to account for the uncertainties noted above, as well as to account for the needs of fishing communities. As noted above, the approach used for developing the proposed rebuilding strategies is intended to accelerate the rebuilding timeline because catches would be set more conservatively than F
This rule also proposes to establish a rebuilding plan review analysis for both GOM cod and American plaice, in conjunction with the proposed revisions to the rebuilding programs. The proposed rebuilding plan review would occur for the respective stock if all three of the following conditions are met:
• The total catch limit has not been exceeded during the rebuilding program;
• New scientific information indicates that the stock is below its rebuilding trajectory (i.e., rebuilding has not progressed as expected); and
• F
If all three of the criteria described above are met, then the Council would task its appropriate body (e.g., Groundfish Plan Development Team or Scientific and Statistical Committee) to complete a rebuilding plan review that would provide the Council with new catch advice for GOM cod and/or American plaice. In priority order, the rebuilding plan review would:
1. Consider extending the rebuilding program to the maximum 10 years if a shorter time frame was initially adopted;
2. Review the biomass reference points; and
3. Provide catch limits based on F
a. Under a 10-year rebuilding program (Item 1 above);
b. Under a review of the biomass reference points (Item 2 above); and
c. Under the existing rebuilding program.
The proposed rebuilding plan review analysis is intended to investigate why rebuilding has not occurred as expected. These types of analyses are typically already done as part of the current biennial review process for the groundfish program, or during a stock assessment, regardless of whether the above criteria are met for initiating the review. The proposed rebuilding plan review would not replace the current biennial review process; rather it would modify it in order to explicitly identify the criteria for initiating a review, or the specific analyses that should result from the review.
As noted during the development of Framework 51, we are concerned with the administrative burden of this measure, and whether there are any measurable benefits of the proposed rebuilding plan review analysis. The only basis for initiating the rebuilding plan review analysis, as proposed, would be a stock assessment that provided information to show that a stock was not on its rebuilding trajectory. As noted above, if a stock falls below its rebuilding trajectory, an investigation of why rebuilding has not occurred as expected would already occur during the stock assessment, or as part of the existing biennial review process.
In addition, the rebuilding programs adopted by Framework 51, and proposed in this rule, would also already use the maximum 10-year rebuilding period allowed. Thus, the first step in the rebuilding plan review (Item 1) is obsolete, and so is the task of providing F
We are concerned about the approvability of this measure due to all of the issues noted above. As a result, we are requesting specific comments on
Eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada. Each year, the Transboundary Management Guidance Committee (TMGC), which is a government-industry committee made up of representatives from the United States and Canada, recommends a shared quota for each stock based on the most recent stock information and the TMGC harvest strategy. The TMGC's harvest strategy for setting catch levels is to maintain a low to neutral risk (less than 50 percent) of exceeding the fishing mortality limit for each stock. The TMGC's harvest strategy also specifies that when stock conditions are poor, fishing mortality should be further reduced to promote stock rebuilding. The shared quotas are allocated between the United States and Canada based on a formula that considers historical catch (10-percent weighting) and the current resource distribution (90-percent weighting).
Assessments for the three transboundary stocks were completed in June 2013 by the Transboundary Resources Assessment Committee (TRAC). A detailed summary of the 2013 TRAC assessment can be found at:
Although the proposed 2014 shared quota for GB yellowtail flounder would be a 20-percent decrease from 2013, the U.S. quota for GB yellowtail flounder would increase by 53 percent in 2014 compared to 2013. This increase is due to the large increase of the U.S. share of the quota in 2014 (from 43 percent to 82 percent) due to higher distribution of this stock in U.S. waters compared to past years. The proposed 2014 shared U.S./Canada quotas for eastern GB cod and haddock are higher compared to 2013. The resulting U.S. quotas would increase by 60 percent for eastern GB cod and 166 percent for eastern GB haddock compared to 2013. The proposed 2014 catch limit for GB yellowtail flounder is also discussed in more detail in Item 3 of this preamble.
The U.S./Canada Resource Sharing Understanding requires that any overages of the eastern GB cod, eastern GB haddock, or GB yellowtail flounder U.S. quotas be deducted from the U.S. quota in the following fishing year. If FY 2013 catch information indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we must reduce the FY 2014 U.S. quota for that stock in a future management action, as close to May 1, 2014, as possible. If any fishery that is allocated a portion of the U.S. quota exceeds its allocation, and causes an overage of the overall U.S. quota, the overage reduction would be applied to that fishery's allocation in the following fishing year. For example, if the scallop fishery exceeded its allocation of GB yellowtail flounder, which caused the overall U.S. quota to be exceeded, then the pound-for-pound reduction would be applied to the scallop fishery's allocation for the next fishing year. This ensures that catch by one component of the fishery does not negatively affect another component of the fishery.
The catch limits proposed in this action can be found in Tables 2 through 8. A brief summary of how these catch limits were developed is provided below. More detail on the proposed catch limits for each groundfish stock can be found in Appendix III to the Framework 51 EA (see
Last year, Framework 50 adopted FY 2013-2015 catch limits for all groundfish stocks, except for the U.S./Canada stocks, which must be set every year, and white hake. A benchmark stock assessment for white hake was completed in February 2013, and the results of this assessment became available after the Council took final action on Framework 50. As a result, the Council was not able to incorporate the new benchmark results in time for setting FY 2013-2015 catch limits. Instead, we implemented an emergency action for FY 2013 to increase the white hake catch limit based on the February 2013 assessment, and give the Council time to respond to the new assessment. As described in Framework 51, this rule now proposes to implement FY 2014-2016 catch limits for white hake based on the recent stock assessment, and consistent with the recommendation of the Council's Scientific and Statistical Committee (SSC). This rule also proposes to incorporate the FY 2014 shared U.S./Canada quotas (see Item 2 in this preamble), which are discussed in more detail below. For all stocks, except GB cod, GB haddock, GB yellowtail flounder, and white hake, the
The overfishing limit (OFL) serves as the maximum amount of fish that can be caught in a year without harming the stock. The OFL for each stock is calculated using the estimated stock size and F
Both the 2013 TRAC assessment and the SSC noted concerns for the poor performance of the stock assessment model for GB yellowtail flounder. The assessment model has a strong retrospective pattern, which causes stock size to be overestimated and fishing mortality to be underestimated. Despite concerns for the uncertainties in the assessment, and the performance of the assessment model, however, both the TRAC and the SSC concluded that stock conditions are poor. Recruitment for the stock remains low, and although the quota has been reduced in recent years due to continually declining stock conditions, all of the available information indicates that the stock has not responded to these reductions. In addition, although the assessment is highly uncertain, it was not rejected by either the TRAC or SSC.
The 2013 TRAC assessment concluded that 2014 catches well below 500 mt are likely needed to achieve the TMGC's harvest strategy for GB yellowtail flounder, and that catch should be reduced as much as possible from the 2013 quota of 500 mt. Consistent with the TRAC assessment, the SSC recommended that catches not exceed 500 mt in FY 2014, and strongly recommended that catch be reduced as much as practicable in light of concerns about the status of the stock. The SSC also concluded that the OFL for GB yellowtail flounder cannot be reliably estimated due to poor performance of the assessment model, and as a result determined that the OFL is unknown.
When reviewing and approving any quota, the Magnuson-Stevens Act requires us to determine that the proposed quota has a sufficient probability of preventing overfishing. To do this, we build off of the SSC's recommendation of an OFL and ABC. When absolute values for the OFL are not readily available, any quota recommendation must still meet the necessary requirements, and have at least a 50-percent probability of preventing overfishing. Both the TRAC results and the SSC's recommendation provide the necessary directionality of the 2014 quota compared to 2013 as well as information that can be used to determine the appropriate 2014 catch limit that would have a sufficient probability of preventing overfishing.
The results of the assessment model that are not adjusted for the retrospective pattern indicate that 2014 catches at the fishing mortality limit would be 562 mt. However, given the poor performance of the assessment model, and because these results are not adjusted for the retrospective pattern in the assessment, it is reasonable to conclude that these results may be biased high. Because the unadjusted model results from the assessment are likely biased high, the 2014 quota should have a greater uncertainty buffer than the Council's standard default control rule (75% F
Recent catches can also be used to evaluate what 2014 catch level would be consistent with the TRAC and SSC's recommendations to reduce catches as much as possible/practicable. Catches in 2012, which is the most recent fishing year in which final catch information is available, were approximately 480 mt, of which the United States caught 385 mt. The U.S. share of the quota increases in 2014 from 43 percent in 2013 to 82 percent in 2014, and as a result, the 2014 TMGC recommendation of 400 mt would result in a U.S. quota of 328 mt, which is nearly equal to the FY 2012 total U.S. catch. Similarly, although final 2013 catch estimates will not be available until September 2014, if total 2013 catches are between 300-400 mt, a quota above 400 mt in 2014 would likely allow catches to increase compared to recent years, which would not be consistent with the TRAC and SSC's recommendation that catches be reduced.
The FY 2013 catch limit for GB yellowtail flounder was 500 mt. Because the stock has declined further this past year, a status quo catch limit in FY 2014 would not appropriately account for this stock decline. The quota was reduced by more than 40 percent from 2011 to 2012, and again from 2012 to 2013, yet the 2013 TRAC assessment indicates that the stock has not responded to these reductions. This suggests that the 2014 quota should be further reduced from 2013 to increase the likelihood that stock conditions will improve.
Based on all of these factors, we determined that 400 mt was the total ABC for GB yellowtail flounder that would have a sufficient probability of preventing overfishing, reduce catch consistent with the TRAC and SSC advice, and provide for some stock growth. This determination was provided to the TMGC in September 2013, and served as the basis for the TMGC recommending 400 mt as the 2014 shared quota. Despite alternative catch limits put forward by the Council's Groundfish Oversight Committee, the Council ultimately adopted the TMGC's recommendation in Framework 51, and this action proposes a FY 2014 catch limit of 400 mt for GB yellowtail flounder. Based on the best scientific information available, a quota of 400 mt would have at least a median probability of preventing overfishing, and would also increase the likelihood that stock conditions will improve. The proposed quota of 400 mt would be a 20-percent reduction compared to the 2013 quota, which is consistent with the TRAC and SSC's recommendation to reduce catches as much as practicable.
In response to concerns for the poor performance of the GB yellowtail flounder stock assessment model, the TRAC will conduct a benchmark assessment April 14-18, 2014, to examine an alternative method for
The U.S. ABC for each stock (for each fishing year) is divided among the various fishery components to account for all sources of fishing mortality. First, expected catch from state waters and the “other” sub-component is deducted from the U.S. ABC. These sub-components are not subject to specific catch controls by the Groundfish Plan. As a result, the state waters and “other” sub-components are not allocations, and these components of the fishery are not subject to accountability measures if the catch limits are exceeded. After the state and other sub-components are deducted, the remaining portion of the U.S. ABC is the amount available to the fishery components that receive an allocation for the stock. Components of the fishery that receive an allocation are subject to catch controls by the Groundfish Plan, including accountability measures that are triggered if they exceed their respective catch limit during the fishing year.
Once the U.S. ABC is divided, sub-annual catch limits (sub-ACLs) are set by reducing the amount of the ABC distributed to each component of the fishery to account for management uncertainty. Management uncertainty is the likelihood that management measures will result in a level of catch greater than expected. For each stock, management uncertainty is estimated using the following criteria: Enforceability and precision of management measures, adequacy of catch monitoring, latent effort, and catch of groundfish in non-groundfish fisheries. The total ACL is the sum of all of the sub-ACLs and ACL sub-components, and is the catch limit for a particular year after accounting for both scientific and management uncertainty. Landings and discards from all fisheries (commercial and recreational groundfish fisheries, state waters, and non-groundfish fisheries) are counted against the ACL for each stock.
For stocks allocated to sectors, the commercial groundfish sub-ACL is further divided into the non-sector (common pool) sub-ACL and the sector sub-ACL, based on the total vessel enrollment in sectors and the cumulative PSCs associated with those sectors. The preliminary sector and common pool sub-ACLs proposed in this action are based on FY 2014 PSCs and FY 2013 sector rosters. FY 2014 sector rosters will not be finalized until May 1, 2014, because individual permit holders have until the end of FY 2013 to drop out of a sector and fish in the common pool fishery for FY 2014. Therefore, it is possible that the sector and common pool catch limits proposed in this action may change due to changes in the sector rosters. If changes to the sector rosters occur, updated catch limits will be published as soon as possible in FY 2014 to reflect the final FY 2014 sector rosters as of May 1, 2014.
The common pool sub-ACL for each stock (except for Southern New England/Mid-Atlantic (SNE/MA) winter flounder, windowpane flounder, ocean pout, Atlantic wolffish, and Atlantic halibut) is further divided into trimester total allowable catches (TACs). The distribution of the common pool sub-ACLs into trimesters was adopted by Amendment 16 and is based on recent landing patterns. Once we project that 90 percent of the trimester TAC is caught for a stock, the trimester TAC area for that stock is closed for the remainder of the trimester to all common pool vessels fishing with gear capable of catching the pertinent stock. Any uncaught portion of the trimester TAC in Trimester 1 or Trimester 2 will be carried forward to the next trimester. Overages of the Trimester 1 or Trimester 2 TAC will be deducted from the Trimester 3 TAC. Any overages of the total common pool sub-ACL will be deducted from the following fishing year's common pool sub-ACL for that stock. Uncaught portions of the Trimester 3 TAC may not be carried over into the following fishing year. Table 5 summarizes the common pool trimester TACs proposed in this action.
Incidental catch TACs are also specified for certain stocks of concern (i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs (i.e., special access programs (SAPs) and the Regular B Days-at-Sea (DAS) Program), in order to limit the catch of these stocks under each program. Tables 6 through 8 summarize the distribution of the common pool sub-ACLs to each special management program, and the Incidental Catch TACs for each stock that are proposed in this action.
For FY 2013 and beyond, Framework 48 adopted an allocation of GB yellowtail flounder for the small-mesh fisheries. For this allocation, the small-mesh fisheries were defined as vessels fishing with otter trawl gear with a codend mesh size of 5 inches (12.7 cm) or less. The target species for these small-mesh fisheries typically include squid and whiting. Framework 48 adopted a GB yellowtail flounder allocation for these fisheries due to concerns for the low stock size of GB yellowtail flounder, and that these fisheries have accounted for a larger portion of the total catch in recent years. Corresponding accountability measures (AMs) were not adopted last year because development of AMs required close coordination with the Mid-Atlantic Fishery Management Council, which is responsible for the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. As a result, Framework 48 presumed that AMs would be developed by the respective Fishery Management Plans in a future management action through coordination of the New England and Mid-Atlantic Councils. Thus, Framework 51 and this rule now propose to establish AMs for GB yellowtail flounder for the small-mesh fisheries, and apply them retroactively to FY 2013 catches.
The U.S./Canada Resource Sharing Understanding requires that, if the U.S. quota for GB yellowtail flounder is exceeded, then the U.S. quota for the following fishing year must be reduced by the amount of the overage. The pound-for-pound reduction is applied to the sub-ACL of the fishery component that caused the overage. For example, if the small-mesh fisheries caused an overage of the U.S. quota in Year 1, the small-mesh fisheries sub-ACL would be reduced by the amount of the overage in the next fishing year (Year 2). This pound-for-pound reduction serves as a reactive AM. However, the small-mesh fisheries are currently required to discard all GB yellowtail flounder caught. Thus, a pound-for-pound reduction of the quota, without corresponding measures to help reduce catches of GB yellowtail flounder, would not appropriately mitigate an overage, or prevent future overages from occurring.
This rule proposes an additional reactive AM that would require vessels fishing with bottom otter trawl gear with a codend mesh size of less than 5 in (12.7 cm) to fish with selective trawl gear in the GB yellowtail flounder stock area (Statistical areas 522, 525, 561, and 562) if the small-mesh fisheries sub-ACL is exceeded. Currently, approved gear types include the raised footrope trawl, separator trawl, rope trawl, Ruhle trawl, and mini-Ruhle trawl. Additional gear types can be authorized by the Council in a future management action, or approved by the Regional Administrator through the gear-approval process defined at § 648.85(b)(6). The proposed AM would be triggered regardless of whether the total ACL is exceeded. With the exception of the GB yellowtail flounder AM for the scallop fishery, this approach to triggering an AM is consistent with how other fishery components are treated (i.e., commercial and recreational groundfish fisheries and mid-water trawl fishery). AMs linked to the sub-ACLs of the fishery ensure that each component is held responsible for its catch of the respective stock.
The proposed AM would only be implemented at the start of a fishing year (May 1). The AM would not be implemented in the middle of the fishing year due to the potential for disproportionate impacts on the small-mesh fisheries, which operate at different times on GB, depending on the target species. If an overage of the small-mesh fisheries sub-ACL in Year 1 occurs, the proposed AM would be triggered:
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The proposed AM would ensure that there are sufficient measures in place to reduce catches of GB yellowtail flounder, should an overage occur. This AM also ensures that the small-mesh fisheries catch of GB yellowtail flounder does not negatively impact other components of the fishery. Further, because GB yellowtail flounder is jointly managed with Canada, it is especially important that the United States implement sufficient management measures to prevent overages of the U.S. TAC, and if overages occur, to sufficiently mitigate that overage.
In 2013, the TMGC developed a U.S./Canada quota trading mechanism that would provide more flexibility in setting annual U.S./Canada quotas in order to create additional fishing opportunities. Framework 51 proposes to adopt a 1-year mechanism for FY 2014 that would allow the Regional Administrator, in consultation with the Council, to adjust the U.S./Canada quotas inseason consistent with any trade agreed upon with Canada. Any additional quota that the United States receives from a trade would be allocated to all of the fishery components consistent with the current ABC distribution used by the Council in this action for setting groundfish catch limits. Under this proposed approach, both groundfish and non-groundfish fisheries would potentially benefit from additional quota, regardless of what fishery gave up quota for the trade. For example, if the United States trades away eastern GB cod in return for GB yellowtail flounder, the scallop and small-mesh fisheries would benefit from the additional GB yellowtail flounder quota, even though the commercial groundfish fishery was the only component to give away its cod quota.
The Canadian fishing year is based on the calendar year, while the U.S. groundfish fishing year is May 1-April 30. The difference between the U.S. and Canadian fishing years allows a trade to occur for adjacent years. Under the proposed mechanism, a trade could occur towards the end of the Canadian fishing year, when the U.S. fishing year is only half completed. For example, if Canada underharvests its quota, it could trade away its surplus quota to the United States in the current fishing year, in return for additional quota from the United States for the upcoming fishing year. Under this proposed mechanism, the United States would only receive additional quota in the current fishing year, and would only trade away its quota for the upcoming fishing year, prior to the start of the fishing year, and before allocations are made to components of the U.S. fishery.
The proposed mechanism would exist only for quota trades made by, or before the end of, FY 2014. The Council adopted a 1-year only trading mechanism for several reasons:
1. The Council wished to determine whether trades between the United States and Canada are practical under the proposed approach; and
2. The Council is considering a more sophisticated trading mechanism as part of Amendment 18 to the Groundfish Plan that would better ensure the entities trading away quota would directly receive quota in return.
Eastern GB haddock is a sub-unit of the total GB haddock stock, and the total ABC for GB haddock includes the shared U.S./Canada quota for eastern GB haddock. A portion of a sector's GB haddock allocation may only be caught in the Eastern U.S./Canada Area, and the remaining portion of their total GB haddock allocation can be caught only in the Western U.S./Canada Area. This restriction was adopted by Amendment 16 in order to cap the amount of GB haddock that a sector could catch in the eastern U.S./Canada Area and help prevent the United States from exceeding its eastern GB haddock quota. However, limiting the amount of haddock that could be caught in the western U.S./Canada Area could unnecessarily reduce flexibility, and potentially limit fishing in the area, even if a sector has not caught its entire GB haddock allocation. Ultimately, this could prevent the fishery from achieving optimum yield for the GB haddock stock.
To address this concern, this rule proposes to allow sectors to “convert” their eastern GB haddock allocation into western GB haddock allocation. This measure would follow a process similar to the one used for processing sector trades. Sectors could convert eastern GB haddock allocation into western GB haddock allocation at any time during the fishing year, and up to 2 weeks into the following fishing year to cover any overage during the previous fishing year. A sector's proposed allocation conversion would be referred to, and approved by, NMFS based on general issues, such as whether the sector is complying with reporting or other administrative requirements, including weekly sector reports, or member vessel compliance with Vessel Trip Reporting requirements. Based on these factors, we would notify the sector if the conversion is approved or disapproved. At this time, NMFS proposes to use member vessel compliance with Vessel Trip Reporting requirements as the basis for approving, or disapproving a re-allocation of Eastern GB quota to the Western U.S./Canada Area. This is identical to the process used for reviewing, and approving, quota transfer requests between sectors.
The responsibility for ensuring that sufficient allocation is available to cover the conversion is the responsibility of the sector. This measure would also extend to state-operated permit banks. Any conversion of eastern GB haddock allocation into western GB haddock allocation may be made only within a sector, or permit bank, and not between sectors or permit banks. In addition, once a portion of eastern GB haddock allocation has been converted to western GB haddock allocation, that portion of allocation remains western GB haddock for the remainder of the fishing year. Western GB haddock allocation may not be converted to eastern GB haddock allocation. This proposed measure does not change the requirement that sector vessels may only catch their eastern GB haddock allocation in the Eastern U.S./Canada Area, and may only catch the remainder of their GB haddock allocation in the Western U.S./Canada Area.
This measure would provide additional flexibility for sectors to harvest their GB haddock allocations, without increasing the risk of biological harm to the stock. This measure may also create additional fishing opportunities for sector vessels on a healthy groundfish stock, and better help the fishery achieve optimum yield for this stock. The total catch limit for GB haddock includes the U.S. quota for eastern GB haddock, so this proposed measure would not jeopardize the total ACL for GB haddock, or the U.S. quota for the eastern portion of the stock. A sector would also still be required to stop fishing in the Eastern U.S./Canada Area once its entire eastern GB haddock allocation was caught, or in the Western U.S./Canada Area once its western GB haddock allocation was caught, or at least until it leased in additional quota. This ensures sufficient accountability for sector catch that will help prevent overages of any GB haddock catch limit.
Landings and discards of a stock count against a sector's allocation. A sector's discard rate for a stock is estimated by extrapolating discards of that stock on observed fishing trips. For each sector and stock, a discard rate is calculated for each combination of gear type and stock area (known as a “discard strata”). For example, a sector receives a unique discard rate for yellowtail flounder caught on trips fishing with bottom otter trawl gear in the GB yellowtail flounder stock area (Statistical areas 522, 525, 561, and 562). In Framework 48 to the Groundfish Plan, the Council proposed to change the stratification of discard estimates for GB yellowtail flounder by creating two separate discard strata for GB yellowtail flounder: (1) A stratum for statistical area 522 by itself; and (2) a stratum for statistical areas 525, 561, and 562 combined. This measure was developed, in part, because there were concerns that the substantial reductions in the GB yellowtail flounder quota for FY 2013 would severely constrain sector vessels. Under the existing stratification (a single stratum for statistical areas 522, 525, 561, and 562 combined), the Council was concerned that even if some sector vessels fished in areas on GB where little yellowtail flounder is caught, in order to reduce catch of GB yellowtail flounder, other vessels fishing on other parts of GB, with higher catch rates of yellowtail flounder, would impact the discard rate for the entire sector. As a result, creating a separate strata for statistical area 522 and statistical areas 525, 561, and 562 combined would more accurately reflect fishing effort in these areas.
Based on public comments received on the Framework 48 proposed rule, we disapproved the change to the stratification of GB yellowtail flounder discards because it would increase the costs and burden of monitoring, and potentially increase uncertainty of catch estimates, without any measurable benefit for sectors. Industry members opposed this measure in Framework 48 because they said it would not benefit groundfish vessels. We did not receive any comments in support of this measure. Although finer scale discard strata may have allowed discard estimates to more closely reflect actual discard rates of yellowtail flounder in different areas of GB, we determined that the new discard strata would not have provided any benefits that sectors could not realize through the existing discard rate strata (by only fishing in areas of GB with low catches of GB yellowtail flounder). For more information on this measure, as proposed in Framework 48, see the proposed and interim final rules for Framework 48 here:
Despite the disapproval in Framework 48, this rule proposes to change the stratification of GB yellowtail flounder discards for sectors and create two separate discard strata for GB yellowtail flounder: (1) A stratum for statistical area 522; and (2) a stratum for statistical areas 525, 561, and 562. This proposed measure is identical to the measure that was proposed, and disapproved, in Framework 48. The proposed measure would only apply to inseason sector monitoring, and would only apply to GB yellowtail flounder. The proposed measure would not change the stratification of discards for the common pool fishery, or any non-groundfish fishery.
Although the stratification of discards could be changed for all gear types, the proposed measure is primarily intended for trawl vessels, which catch the majority of GB yellowtail flounder. This rule also proposes to give the Regional Administrator authority for determining whether this change to the stratification for GB yellowtail flounder is needed, or not, for non-trawl gears. If the Regional Administrator determines that the change to stratification is not necessary for other, non-trawl gears, these gears types could be excluded from the proposed stratification. At this time, we have determined that the revised stratification for GB yellowtail flounder should be proposed only for trawl gear.
Analysis of the proposed measure completed by the Council in the Framework 51 Environmental Assessment indicates that if the proposed discard strata for GB yellowtail flounder had been used in FY 2010 and FY 2011, the total discards estimates would have increased by 5 percent, and declined by less than 1 percent, respectively. Thus, based on this analysis, changing the stratification used for monitoring GB yellowtail flounder would not likely lead to large changes in the total discard estimates; however, it does have the potential to increase the variance in discard estimates, which could increase monitoring coverage levels necessary to accurately monitor sector catch.
The impacts of the proposed discard strata on individual sectors would likely vary. The Framework 51 analysis shows that GB yellowtail flounder discard estimates for some sectors would decrease by up to 40 percent, while discard estimates for other sectors would increase by up to 25 percent. As a result, the economic impacts of the proposed measure would be mixed. For those sectors that would receive a lower discard rate, vessels would expend less GB yellowtail flounder quota on each trip, which would increase net revenues, and potentially allow for more fishing. For sectors that would receive an increased discard rate, the opposite would be true, and the proposed measure could reduce net revenues. Sections 7.1.2.3.2 and 7.4.2.3.2 of the Framework 51 Environmental Assessment have additional details on the impacts of the proposed measure.
We are concerned that if a new discard strata is developed for GB yellowtail flounder, it could set a precedent for revising discard strata for other quota-limiting stocks (like GOM cod). Each additional discard strata created for monitoring sector catch increases the administrative burden on NMFS, and has the potential for increasing the monitoring coverage levels necessary to accurately monitor catch if it increases the variance of discard estimates. We are concerned for the approvability of this measure for all of these reasons, in addition to the reasons this measure was initially disapproved in Framework 48.
When the Council took final action on Framework 51, and adopted the proposed revisions to the GB yellowtail flounder discard strata, it also passed a motion that the measure be implemented “unless NMFS develops a discard tool to address this issue through the sectors.” The Council's motion was unclear how this determination would be made, and who would make this determination whether to implement the proposed revisions to the GB yellowtail flounder discard strata in Framework 51, or to instead, rely on the discard tool developed by NMFS.
Since the Council took final action on Framework 51, we developed a discard tool that sectors can use in order to more appropriately allocate discards among sector vessels based on individual fishing activity. We held a sector workshop on February 20, 2014, to present the discard tool to the sectors, and we received positive feedback from sector representatives. Based on the results of the February 20, 2014, sector workshop, we believe that the discard tool for sectors to allocate discards to their members provides a better solution than the proposed stratification for GB yellowtail flounder, and more sufficiently addresses the problem for the reasons provided below.
• Each sector can decide whether to use the discard tool and, if so, can
• Each fishing year, or during the fishing year, a sector could make changes to how the discard tool is used based on the needs and interests of the sector.
• A sector could use the discard tool for as many, or as few, allocated stocks as it desires, whereas the discard strata proposed in Framework 51 would only serve as a patch fix for GB yellowtail flounder.
• The discard tool uses only exiting data already available to managers; no additional data would have to be collected.
• The discard tool does not require any regulatory changes, does not have the potential to increase variance of discard estimates, and thus, does not have the potential to increase monitoring coverage levels.
We are requesting specific comments to address our concerns about the proposed revisions to the GB yellowtail flounder discard strata, whether these proposed revisions would provide sectors with any measurable benefits, and whether the discard tool would sufficiently address sector needs in lieu of the Framework 51 proposed measure.
Currently, limited-access scallop vessels are required to land all legal-sized yellowtail flounder. This measure was adopted beginning in FY 2010 in order to reduce bycatch of yellowtail flounder in the scallop fishery consistent with National Standard 9 of the Magnuson-Stevens Act, which requires bycatch be reduced as much as practicable. Landing yellowtail flounder is not cost effective for scallop vessels, so, the current requirement was intended to remove any incentive for scallop vessels to “target” yellowtail flounder. With the respect to this measure, it is important to note that scallop vessels do not “target” yellowtail flounder in the traditional sense; rather they may choose not to move out of an area with high levels of yellowtail flounder bycatch. Recent information shows that compliance with the current landing requirement has been extremely low probably due, in part, because landing yellowtail flounder is not cost effective for scallop vessels. The current landing requirement is likely difficult to enforce because it requires law enforcement officers to intercept scallop vessels at sea during the act of illegally discarding legal-sized yellowtail flounder.
Despite documented low compliance rates, industry reports have recently indicated that a very small number of scallop vessels may be “targeting” yellowtail flounder. To address this possibility, this action proposes to remove the landing requirement, and prohibit the possession of all yellowtail flounder by limited access scallop vessels. Prohibiting possession of yellowtail flounder is intended to remove the incentive for scallop vessels to “target” yellowtail flounder since they could not be retained, or sold, which is expected to ultimately reduce yellowtail flounder mortality.
National Standard 9 of the Magnuson-Stevens Act requires that bycatch be reduced as much as practicable, where bycatch is defined as “fish harvested in a fishery, but that are not sold or kept,” and refers to economic and regulatory discards. Thus, the proposed measure to prohibit possession of yellowtail flounder would actually increase bycatch, as it is defined in the Magnuson-Stevens Act, compared to the existing requirement to land all legal-sized yellowtail flounder. However, for the purposes of reviewing the proposed measure, a more important consideration is the total fishing mortality for each yellowtail flounder stock. If the proposed action would reduce fishing effort on yellowtail flounder, then total fishing mortality for yellowtail flounder stocks would be expected to decrease. This would provide important conservation benefits, particularly for GB yellowtail flounder, which has declined in recent years.
The recent 2012 stock assessment for SNE/MA yellowtail flounder reduced the discard mortality rate from 100 percent to 90 percent for commercial catches. As a result, prohibiting possession of this stock by limited access scallop vessels has the potential to slightly reduce mortality on this yellowtail flounder stock assuming that some of the discarded fish survive. The stock assessments for Cape Cod/Gulf of Maine and GB yellowtail flounder assume a 100-percent discard mortality rate, so it is unclear whether zero possession has the same potential benefits for these yellowtail stocks as the SNE/MA stock.
We are requesting specific comment on whether the current landing requirement truly created an incentive to “target” yellowtail flounder, thereby increasing total mortality on the stocks, and whether the proposed measure would be expected to decrease total fishing mortality on each of the yellowtail flounder stocks.
In fall 2013, final catch information became available for FY 2012. These final catch estimates indicated that the northern windowpane flounder ACL was exceeded by 28 percent, and the southern windowpane flounder ACL was exceeded by 36 percent. The FY 2012 final catch report can be found here:
These FY 2012 overages will automatically trigger AMs beginning in FY 2014 that require selective trawl gear to be used in certain parts of the stock areas for both windowpane flounder stocks. For the entire 2014 fishing year, common pool and sector vessels fishing on a groundfish trip with trawl gear will be required to use one of the following selective trawl gears when fishing in the AM areas: (1) Haddock separator trawl; (2) Ruhle trawl; (3) mini-Ruhle trawl; or (4) rope separator trawl. There are no restrictions on longline or gillnet gear. These gear restrictions will apply in the large AM areas for both northern and southern windowpane flounder because the overages were more than 20 percent of the ACL for both stocks (maps and coordinates of the AM areas can be found here:
The FY 2014 windowpane flounder AMs will not impact non-groundfish fisheries because these fisheries did not have an allocation of either windowpane flounder stock for FY 2012. Although these non-groundfish fisheries may have contributed to the 2012 overages, the commercial groundfish fishery will be held 100-percent accountable. For FY 2013 and beyond, at the Council's recommendation, we approved the allocation of southern windowpane to the scallop fishery and other non-groundfish fisheries fishing with bottom otter traw gear with codend mesh of 5 inches (12.7 cm) or greater. Allocating this stock to other fisheries will help ensure that each fishery is held accountable for their catch in the future, and that catch from one fishery cannot negatively impact another. For FY 2013 and beyond, any AM triggered for southern windowpane will only apply
The Groundfish FMP gives us authority to implement certain types of management measures for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs on an annual basis, or as needed. This proposed rule includes a description of these management measures that are being considered for FY 2014 in order to provide an opportunity for the public to comment on whether the proposed measures are appropriate. These measures are not part of Framework 51, and were not specifically proposed by the Council, but are proposed in conjunction with Framework 51 for expediency purposes, and because they relate to the proposed catch limits in Framework 51.
Table 9 provides a summary of the default trip limits that would take effect in FY 2014 if we took no action, the current common pool trip limits for FY 2013, and the proposed trip limits that would be in effect for the start of FY 2014. Table 10 provides a summary of the proposed FY 2014 cod trip limits for vessels fishing with a Handgear A, Handgear B, or Small Vessel Category permit. Proposed trip limits for FY 2014 were developed after considering changes to the FY 2014 common pool sub-ACLs and sector rosters, trimester TACs for FY 2014, catch rates of each stock during FY 2013, and other available information.
The default cod trip limit is 300 lb (136.1 kg) per trip for Handgear A vessels. If the GOM or GB cod trip limit for vessels fishing on a groundfish DAS drops below 300 lb (136.1 kg), then the respective Handgear A cod trip limit must be adjusted to be the same. This action proposes a GOM cod trip limit of 200 lb (90.7 kg) per DAS for vessels fishing on a groundfish DAS, so the proposed Handgear A trip limit for GOM cod is reduced to 200 lb (90.7 kg) per trip, accordingly.
The regulations also require that the Handgear B vessel trip limit for GOM and GB cod be adjusted proportionally (rounded up to the nearest 25 lb (11.3 kg)) to the default cod trip limits applicable to DAS vessels. The FY 2014 GOM cod trip limit proposed in this action for DAS vessels (200 lb (90.7 kg) per DAS) is 75 percent lower than the default trip limit in the regulations. As a result, the proposed Handgear B vessel trip limit for GOM cod is reduced proportionally to 25 lb (11.3 kg) per trip.
Vessels with a Small Vessel category permit can possess up to 300 lb (136.1 kg) of cod, haddock, and yellowtail, combined, per trip. For FY 2014, we are proposing that the maximum amount of cod and haddock (within the 300-lb (136.1-kg) trip limit) be adjusted proportionally to the trip limits applicable to NE multispecies DAS vessels (see Table 9).
The RA has the authority to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder catch limit and the amount of GB yellowtail flounder caught outside of the SAP. In 2005, Framework 40B (70 FR 31323; June 1, 2005) implemented a provision that no trips should be allocated to the Closed Area II Yellowtail Flounder/Haddock SAP if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit (or 2,250,000 lb (1,020,600 kg). This calculation accounts for the projected catch from the area outside the SAP. Based on the proposed GB yellowtail groundfish sub-ACL of 561,077 lb (254,500 kg), there is insufficient GB yellowtail flounder to allocate any trips to the SAP, even if the projected catch from outside the SAP area is zero. Therefore, this action proposes to allocate zero trips to the Closed Area II Yellowtail Flounder/
The following changes are being proposed to the regulations to correct references, inadvertent deletions, and other minor errors.
In § 648.80(g)(5)(i), this rule would correct the reference to the mesh obstruction or constriction definition.
In § 648.85(b)(6)(iv)(B), the observer call-in requirement under the B DAS program is corrected to 48 hr prior to the start of the trip, instead of 72 hr prior to the start of the trip. This change was inadvertently omitted during the Amendment 16 rulemaking.
This rule would remove § 648.87(b)(1)(i)(F) and (G). This regulatory text was added as part of NMFS's emergency rule for addressing sector carryover for FY 2013. This regulatory text was supposed to expire on April 30, 2014; however, was inadvertently left in the regulations permanently.
In § 648.87(c)(2), this rule would clarify that sector exemptions are limited to those regulations implementing the groundfish program, and not any regulation applicable to a groundfish vessel. The proposed regulatory correction more precisely reflects the intent of Amendment 16.
In § 648.90(a)(4), this rule would reinstate the regulatory text describing the ABC and ACL recommendation process, which was inadvertently deleted in a previous rulemaking.
In § 648.90(a)(5), this rule would reinstate the regulatory text describing the trigger of the scallop fishery accountability measures, which was inadvertently deleted in a previous rulemaking.
In § 697.7(c)(1)(xxii) and (c)(2)(xvii), this rule would replace the word “traps” with “lobster traps.” This proposed correction is intended to clarify that the lobster regulations do not prohibit Federal lobster permit holders from possessing, or using, non-lobster trap gear on trips fishing with a method other than traps (e.g., mobile trawl gear).
NMFS defines a lobster trap as “any structure or other device, other than a net, that is placed, or designed to be placed, on the ocean bottom and is designed for or is capable of, catching lobsters.” This definition applies to all Federal lobster permit holders regardless of whether the permit holder might actually be targeting a different species with the trap (e.g., crab or fish traps). Federal lobster permit holders are prohibited from possessing, or using, lobster traps on any trip that catches lobster with non-trap gear (e.g., trawl gear). However, trap gear that is configured in such a way so that it is not capable of catching lobster is not considered “lobster trap” gear. As a result, Federal lobster permit holders are allowed to possess, and use, non-lobster trap gear on board their vessel even if harvesting lobster with gear other than lobster traps (e.g., trawl gear).
Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with Framework 51, other provisions of the Magnuson-Stevens Act, and other applicable law. In making the final determination, NMFS will consider the data, views, and comments received during the public comment period.
This proposed rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.
This proposed rule does not contain policies with Federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.
The Initial Regulatory Flexibility Analysis (IRFA) was prepared for this proposed rule, as required by section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA includes this section of the preamble to this rule and analyses contained in Framework 51 and its accompanying EA/RIR/IRFA. The IRFA describes the economic impact that this proposed rule would have on small entities, if adopted. A description of the action, why it is being considered, and the legal basis for this action are contained in Framework 51, the beginning of this section (
The Small Business Administration defines a small business as one that is:
This proposed rule impacts commercial and recreational fish harvesting entities engaged in the groundfish limited access and open access fisheries, the small-mesh multispecies and squid fisheries, and the scallop fishery. A description of the specific permits that are likely to be impacted is included below for informational purposes, followed by a discussion of the impacted businesses (ownership entities), which can include multiple vessels and/or permit types. For the purposes of the RFA analysis, the ownership entities, not the individual vessels, are considered to be the regulated entities.
The limited access groundfish fishery consists of those enrolled in the sector program and those in the common pool. As of January 14, 2014 (FY 2013), there were 1,088 individual limited access permits. For purposes of this analysis, groundfish limited access eligibilities held as Confirmation of Permit History are not included because, although they may generate revenue from quota leasing, they do not generate any gross sales from fishing activity, and thus, would not be classified as commercial fishing entities.
Of the 1,088 limited access groundfish permits issued in FY 2013, 664 of these permits were enrolled in the sector program, and 424 were in the common pool. Each of these permits will be eligible to join a sector or enroll in the common pool in FY 2014. Alternatively each permit owner could also allow their permit to expire by failing to renew it. Of the 1,088 limited access groundfish permits, 767 have landings of any species and 414 have some amount of groundfish landings.
The Handgear B permit is an open access groundfish permit that can be requested at any time, with the
The charter/party permit is an open access groundfish permit that can be requested at any time, with the limitation that a vessel cannot have a limited access and an open access party/charter permit concurrently. There are no qualification criteria required for this permit. Charter/party permits are issued as an open access permit (Category I) under the Groundfish Plan, and are subject to recreational management measures. As of February 20, 2014 (FY 2013), there were 667 party/charter permits issued; 383 of which reported taking a party or charter trip. Of these active party/charter vessels, 120 caught cod or haddock in the Gulf of Maine in FY 2013.
The limited access scallop fisheries include Limited Access (LA) scallop permits and Limited Access General Category (LGC) scallop permits. LA scallop businesses are subject to a mixture of DAS and dedicated area trip restrictions. LGC scallop businesses are able to acquire and trade LGC scallop quota, and there is an annual cap on quota/landings. The proposed action would not alter the regulations for LGC permit holders. As of February 19, 2014 (FY 2013), there were 348 active LA scallop permits with at least one dollar of revenue from sea scallops.
The small-mesh exempted fishery allows vessels to harvest species in designated areas using mesh sizes smaller than the minimum mesh size required by the Groundfish Plan. To participate in the small-mesh multispecies (whiting) fishery, vessels must hold either a limited access multispecies permit or an open access multispecies permit (category K). Limited access multispecies permit holders can only target whiting when not fishing under a DAS, and while declared out of the fishery. A description of limited access multispecies permits was provided above. As of February 18, 2014 (FY 2013), there were 776 open access category K multispecies permits issued, with only 34 of them landing whiting. Many of these vessels target both whiting and longfin squid on small-mesh trips taken in the GB yellowtail flounder stock area, and therefore, most of them also have open access or limited access Squid, Mackerel, and Butterfish (SMB) permits. The GB yellowtail flounder stock area provided almost half of total whiting landings in CY 2010-2011. Since squid landings in the GB yellowtail flounder stock area comprised less than 10 percent of overall squid landings during the same time period, and since most SMB permitted vessels fishing in the GB yellowtail flounder stock area will also have a multispecies permit, SMB permits will not be handled separately in this analysis.
Individually-permitted vessels may hold permits for several fisheries, harvesting species of fish that are regulated by several different fishery management plans, even beyond those impacted by the proposed action. Furthermore, multiple permitted vessels and/or permits may be owned by entities affiliated by stock ownership, common management, identity of interest, contractual relationships, or economic dependency. For the purposes of this analysis, “ownership entities” are defined as those entities with common owners as listed on the permit application. Only permits with identical ownership are categorized as an “ownership entity.” For example, if five permits have the same seven persons listed as co-owners on their permit application, those seven persons would form one “ownership entity,” that hold those five permits. If two of those seven owners also co-own additional vessels, that ownership arrangement would be considered a separate “ownership entity” for the purpose of this analysis.
On June 1 of each year, ownership entities are identified based on a list of all permits for the most recent complete calendar year. The current ownership data set is based on calendar year 2012 permits and contains average gross sales associated with those permits for calendar years 2010 through 2012. Matching the potentially impacted FY 2013 permits described above (limited access and open access groundfish, Handgear B, charter/party, and limited access scallop) to the calendar year 2012 ownership data results in 2,064 distinct ownership entities. Of these, and based on the Small Business Administration guidelines, 2,042 are categorized as small, and 22 are categorized as large entities, all of which are shellfish businesses.
These totals may mask some diversity among the entities. Many, if not most, of these ownership entities maintain diversified harvest portfolios, obtaining gross sales from many fisheries, and not dependent on any one. However, not all are equally diversified. Those that depend most heavily on sales from harvesting species impacted directly by the proposed action are most likely to be affected. By defining dependence as deriving greater than 50 percent of gross sales from sales of regulated species associated with a specific fishery, we are able to identify those ownership groups most likely to be impacted by the proposed regulations.
Using this threshold, 151 entities are groundfish-dependent, all of which are small, and all of which are finfish commercial harvesting businesses. Of the 151 groundfish-dependent entities, 130 have some level of participation in the sector program, and 21 operate exclusively in the common pool fishery. There are 234 regulated entities which are scallop-dependent. All of these are shellfish businesses, and 20 are considered large. There are 35 small-mesh fishery-dependent entities; 19 of them are finfish businesses, 16 of them are shellfish businesses, and all of them are considered small. The small-mesh fishery-dependent entities may overestimate the number of impacted entities since missing statistical area information in the commercial dealer database makes it difficult to track whiting and squid landings that occurred exclusively in the GB yellowtail flounder stock area.
The economic impacts of each proposed measure are summarized below and are discussed in more detail in sections 7.4 and 8.11 of the Framework 51 EA. The outcome of “significant economic impact” can be ascertained by examining two factors: Disproportionality and profitability. Disproportionality refers to whether or not the regulations place a substantial number of small entities at a significant competitive disadvantage to large entities. Profitability refers to whether or not the regulations significantly
The proposed action has the potential to place small entities at a significant competitive disadvantage relative to large entities. This is mainly because large entities likely have more flexibility to adjust to, and accommodate, the proposed measures. Impacts on profitability from the proposed action may be significant for a substantial number of small entities as described below.
The preferred alternatives to change the rebuilding strategies for GOM cod and American plaice (10-year rebuilding program) are expected to positively impact profitability of small entities regulated by this action. The rebuilding strategies being considered for both species are expected to result in higher Net Present Values (NPVs) for each stock compared to if no action was taken, which would translate into larger profits. The alternatives to the preferred alternative included the No Action alternative, an 8-year rebuilding program for GOM cod, and a 7 and 8-year rebuilding program for American plaice. The 10-year rebuilding plan for GOM cod is expected to have modest gains in NPV and profitability compared to the 8-year rebuilding plan. For American plaice, there is little discernible difference between the three rebuilding strategies considered. In addition, by adopting new rebuilding strategies for GOM cod and American plaice, the proposed action will help prevent severe economic loss that could occur under highly restrictive catch limits in FY 2015 that would occur if no action was taken, especially to groundfish-dependent small entities. Party/charter fishing businesses would also experience significant economic loss under the No Action option for GOM cod, but would be unaffected by the American plaice action because there is no directed recreational fishery for this stock, and no recreational allocation of American plaice.
The preferred alternative to modify the ACLs and sub-ACLs for white hake, eastern GB cod and haddock, and GB yellowtail flounder has the potential to impact groundfish and scallop-dependent small entities, and is discussed in the next section. Recreational harvesting entities, as well as small-mesh fishery-dependent entities, do not target these stocks, and are not expected to be directly impacted by this proposed action. Based on the proposed catch limits, gross revenues for the groundfish industry are predicted to decrease in FY 2014 by 26 percent compared to FY 2012, and by 4 percent compared to FY 2013. Net revenue is predicted to decline by 21 percent in FY 2014 compared to FY 2012, and by 12 percent compared to predicted net revenues for FY 2013. The negative impacts of the revised ACLs would be non-uniformly distributed across vessel size classes, with smaller vessels being more heavily impacted compared to large vessels. Although small entities are defined based on gross sales of ownership groups, not physical characteristics of the vessel, it is reasonable to assume that larger vessels are more likely to be owned by large entities. As a result, the proposed ACLs could put small entities at a competitive disadvantage compared to large entities.
Under the No Action alternative, no catch limits would be specified for the U.S./Canada stocks or white hake. As a result, sector vessels would be unable to fish in the respective stock areas in FY 2014. This would result in greater negative economic impacts on vessels compared to the proposed action due to lost revenues as a result of being unable to fish. If no action was taken to specify catch limits for these stocks, the Magnuson-Stevens Act requirements to achieve optimum yield and consider the needs of fishing communities would be violated.
If the scallop fishery triggers the GB yellowtail flounder accountability measures, the proposed ACLs for this stock would likely reduce scallop fishery revenues. How this reduction in revenue would compare to No Action is unclear. The No Action would not set a scallop fishery sub-ACL for GB yellowtail flounder. If no sub-ACL was set, this would not prevent the scallop fishery from fishing in FY 2014. In addition, if no sub-ACL is set, catches in FY 2014 would likely not trigger an AM, which might allow for greater scallop fishery revenues. The proposed FY 2014 GB yellowtail flounder sub-ACL could create a competitive disadvantage within the scallop fishery if an AM is triggered as a result of an overage. Small entities would have less flexibility compared to large entities to adjust to the area closures that would result from an ACL overage.
The proposed catch limits are based on the latest stock assessment information, which is considered the best scientific information available, and the applicable requirements in the Groundfish Plan and the Magnuson-Stevens Act. Because NMFS can only approve or disapprove measures recommended in Framework 51, the only other possible alternatives to the catch limits proposed in this action that would mitigate negative impacts would be higher catch limits. Alternative, higher catch limits, however, are not permissible under the law because they would not be consistent with the goals and objectives of the Groundfish Plan, or the Magnuson-Stevens Act, particularly the requirement to prevent overfishing. The Magnuson-Stevens Act, and case law, prevent implementation of measures that conflict with conservation requirements, even if it means negative impacts are not mitigated. The catch limits proposed in this action are the highest allowed given the best scientific information available, the SSC's recommendations, and requirements to end overfishing and rebuild fish stocks. The only other catch limits that would be legal would be lower than those proposed in this action, which would not mitigate the economic impacts of the proposed catch limits.
The preferred alternative to implement a GB yellowtail flounder accountability measure for small-mesh fisheries is expected to negatively impact small-mesh fishery-dependent small entities, and has the potential to create minor economic benefits for groundfish-dependent small entities. Under the preferred alternative, if the small-mesh fisheries sub-ACL for GB yellowtail flounder is exceeded, selective trawl gear would be required in the year immediately following the overage, or 2 years after the overage, depending on data availability. Small entities would likely experience higher costs as a result, including the fixed cost of purchasing new gear and/or modifying existing gear. These potential gear restrictions would also likely lower the catch rates of target species (e.g., squid and whiting), which would increase operating costs, and effectively lower net revenue and overall profitability. The negative impacts from the proposed action are expected to be lower than another alternative considered in Framework 51 that would have closed the entire GB yellowtail flounder stock area to small-mesh fisheries if the sub-ACL was exceeded. If the proposed accountability measure successfully reduces discards of GB yellowtail flounder, and prevents overfishing, catch rates for the species could increase for groundfish-dependent small entities, resulting in small increases in profitability.
Framework 51 also considered multiple alternatives that would modify U.S./Canada management measures to provide more flexibility for groundfish vessels. For each specific measure, no other alternatives were considered other than the No Action alternative and the proposed action.
The proposed U.S./Canada trading mechanism is not expected to have any additional economic impacts, positive or negative, relative to the No Action alternative, which would not specify any U.S./Canada trading mechanism. At this time, it is not known how the proposed action might increase or decrease quota allocated to groundfish fishermen because it is difficult to anticipate what, if any, trade would be made between the U.S. and Canada. However, if the ability to trade quota inseason were to result in increased quota for sector and/or common pool fishermen, and if that quota were to be converted into landings, then the proposed action would be beneficial to groundfish-dependent small entities.
The second proposed measure would modify the distribution of the eastern and western allocations of GB haddock and is expected to have small, but positive, impacts on groundfish-dependent small entities that participate in the sector program due to increased operational flexibility. Under the proposed action, sector vessels would be allowed to convert their eastern GB haddock allocation into western GB haddock allocation. This would likely increase flexibility for sector vessels, and prevent the western U.S./Canada Area from being closed to a sector prematurely, before the sector had harvested all of its GB haddock allocation. However, since catch of eastern and western GB haddock has been persistently lower than the respective catch limits, the benefit of the proposed action is likely very small.
The proposed action to revise the discard strata for GB yellowtail flounder is only expected to impact groundfish-dependent entities that participate in the sector program. If the discard rate decreases in area 522 as a result of the proposed action, vessels fishing in that area would be able to expend less GB yellowtail quota on each trip. This would likely allow more fishing, and would likely increase net revenues for vessels. The proposed action is expected to have the largest effect on trawl vessels, since these vessels catch the majority of the GB yellowtail flounder catch. The proposed revision to the GB yellowtail flounder discard strata could potentially result in a higher discard rate for the other areas (525, 561, and 562). This would potentially decrease net revenues to vessels fishing in those areas, because the opportunity cost of quota would likely increase.
Finally, the proposed prohibition on possession of yellowtail flounder by limited access scallop vessels is expected to impact only scallop-dependent small entities. If scallop vessels are prohibited from retaining and landing yellowtail flounder, there could be some economic loss for vessels that have been landing the species. Only a relatively small proportion (less than a quarter) of the active limited access vessels are currently landing yellowtail flounder, and the average revenue per vessel from yellowtail flounder is less than 5 percent of the average total revenue. As such, the effects of the proposed action on the profitability of scallop-dependent small entities are expected to be small.
The proposed action contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This requirement will be submitted to OMB for approval. The proposed action does not duplicate, overlap, or conflict with any other Federal rules.
This action proposes to adjust the ACE transfer request requirement implemented through Amendment 16. This rule would add a new entry field to the Annual Catch Entitlement (ACE) transfer request form to allow a sector to indicate how many pounds of eastern GB haddock ACE it intends to re-allocate to the Western U.S./Canada Area. This change is necessary to allow a sector to apply for a re-allocation of eastern GB ACE in order to increase fishing opportunities in the Western U.S./Canada Area. Currently, all sectors use the ACE transfer request form to initiate ACE transfers with other sectors via an online or paper form to the Regional Administrator. The proposed change adds a single field to this form, and would not affect the number of entities required to comply with this requirement. Therefore, the proposed change would not be expected to increase the time or cost burden associated with the ACE transfer request requirement. Public reporting burden for this requirement includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Fisheries, Fishing, Recordkeeping and reporting requirements.
Fisheries, Fishing.
For the reasons stated in the preamble, 50 CFR parts 648 and 697 are proposed to be amended as follows:
16 U.S.C. 1801
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(D) Fish for, possess, or land yellowtail flounder from a vessel on a scallop fishing trip.
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(2) If a sector is approved, the Regional Administrator shall issue a letter of authorization to each vessel operator and/or vessel owner participating in the sector. The letter of authorization shall authorize participation in the sector operations and may exempt participating vessels from any Federal fishing regulation implementing the NE multispecies FMP, except those specified in paragraphs (c)(2)(i) and (ii) of this section, in order to allow vessels to fish in accordance with an approved operations plan, provided such exemptions are consistent with the goals and objectives of the FMP. The letter of authorization may also include requirements and conditions deemed necessary to ensure effective administration of, and compliance with, the operations plan and the sector allocation. Solicitation of public comment on, and NMFS final determination on such exemptions shall be consistent with paragraphs (c)(1) and (2) of this section.
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(v) The Council shall review the ACLs recommended by the PDT and all of the options developed by the PDT and other relevant information; consider public comment; and develop a recommendation to meet the FMP objectives pertaining to regulated species or ocean pout that is consistent with applicable law. If the Council does not submit a recommendation that meets the FMP objectives and is consistent with applicable law, the Regional Administrator may adopt any option developed by the PDT, unless rejected by the Council, as specified in paragraph (a)(2)(vii) of this section, provided the option meets the FMP objectives and is consistent with applicable law.
(vi) Based on this review, the Council shall submit a recommendation to the Regional Administrator of any changes, adjustments or additions to DAS allocations, closed areas or other measures necessary to achieve the FMP's goals and objectives. The Council shall include in its recommendation supporting documents, as appropriate, concerning the environmental and economic impacts of the proposed action and the other options considered by the Council.
(vii) If the Council submits, on or before December 1, a recommendation to the Regional Administrator after one Council meeting, and the Regional Administrator concurs with the recommendation, the Regional Administrator shall publish the Council's recommendation in the
(viii) If the Regional Administrator concurs in the Council's recommendation, a final rule shall be published in the
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16 U.S.C. 5101
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(xxii) Possess, deploy, fish with, haul, harvest lobster from, or carry aboard a vessel any lobster trap gear, on a fishing trip in the EEZ from a vessel that fishes for, takes, catches, or harvests lobster by a method other than lobster traps.
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(xvii) Possess, deploy, fish with, haul, harvest lobster from, or carry aboard a vessel any lobster trap gear on a fishing trip in the EEZ on a vessel that fishes