Background

Under the Plant Protection Act (PPA, 7 U.S.C 7701 et seq. ), the Secretary of Agriculture is authorized to restrict the interstate movement of plants, plants products, and other articles to prevent the dissemination of plant pests and noxious weeds within the United States, and to issue regulations and orders regarding such restrictions. The Secretary has delegated this authority to the Animal and Plant Health Inspection Service (APHIS).

Pursuant to the PPA, APHIS has issued the regulations in 7 CFR part 301, “Domestic Quarantine Notices,” (referred to below as the regulations), in order to prevent the interstate spread of plant pests within the United States.

Part 301 is currently divided into 20 subparts. The first two subparts are “Subpart A—Preemption and Special Need Requests” (§§ 301.1 through 301.1-3) and “Subpart B—Imported Plants and Plant Parts” (§§ 301.10 and 301.11).

The remaining 18 subparts in the regulations each address a specific plant pest: “Subpart C—Fruit Flies” (§§ 301.32 through 301.32-10), “Subpart D—Black Stem Rust” (§§ 301.38 through 301.38-8), “Subpart E—Gypsy Moth” (§§ 301.45 through 301.45-12), “Subpart F—Japanese Beetle (§§ 301.48 through 301.48-8), “Subpart H—Asian Longhorned Beetle” (§§ 301.51-1 through 301.51-9), “Subpart I—Pink Bollworm” (§§ 301.52 through 301.52-10), “Subpart K—South American Cactus Moth (§§ 301.55 through 301.55-9), “Subpart L—Plum Pox” (§§ 301.74 through 301.74-5), “Subpart M—Citrus Canker (§§ 301.75-1 through 301.75-17), “Subpart N—Citrus Greening and Asian Citrus Psyllid” (§§ 301.76 through 301.76-11), “Subpart O—Witchweed” (§§ 301.80 through 301.80-10), “Subpart P—Imported Fire Ant” (§§ 301.81 through 301.81-11), “Subpart R—Golden Nematode” (§§ 301.85 through 301.85-10), “Subpart S—Pale Cyst Nematode (§§ 301.86 through 301.86-9), “Subpart T—Sugarcane Diseases” (§§ 301.87 through 301.87-10), “Subpart U—Karnal Bunt” (§§ 301.89-1 through 301.89-16), “Subpart W—European Larch Canker (§§ 301.91 through 301.91-9), and “Subpart X— Phytophthora Ramorum (§§ 301.92 through 301.92-12).”  1

While there are differences in structure and nomenclature among the various subparts, which we discuss later in this document, the subparts tend to share a basic regulatory approach in common: Certain areas of the United States are designated as quarantined  2 areas for a plant pest, certain articles that may present a risk of spread of the plant pest in question are designated as regulated articles, and conditions are placed on the interstate movement of regulated articles from quarantined areas.

With rare exceptions, the subparts list quarantined areas within the regulations themselves. Because these lists are contained in the regulations, APHIS must issue rules in order to update the lists. However, the rulemaking process sometimes has difficulty keeping pace with the expansion and contraction of quarantined areas for plant pests.

Accordingly, to ensure the domestic quarantine programs continue to serve the function for which they were established, APHIS issues Federal Orders in order to designate such areas. During periods of rapid spread of a plant pest, this can result in issuance of a significant number of Federal Orders. For example, in a single fiscal year (FY 2016), APHIS had to issue 16 Federal Orders designating additional quarantine areas for a single plant pest.

The subparts also list regulated articles in the regulations themselves. While the subparts do allow for immediate designation of an article as a regulated article based on an APHIS determination, usually by an inspector, that the particular article presents a risk of spread of the plant pest and following official notification to the owner of the particular article, these provisions are intended for immediate designation of specific articles, rather than as generally applicable mechanisms to designate additional regulated articles. Again, such generally applicable revisions to the regulations necessitate rulemaking, and, when rules cannot be issued in a sufficient expeditious manner, APHIS issues Federal Orders to serve the programs' needs.

While APHIS ultimately either rescinds Federal Orders or codifies them through rulemaking, in the intervening time period before such codification occurs, the regulations do not align with the actual lists of quarantined areas and regulated articles for various domestic quarantine programs for plant pests.

To address this issue, in this proposed rule, we are proposing to revise the regulations to establish processes wherein lists of quarantined areas and regulated articles would be moved from the regulations to websites maintained by APHIS' Plant Protection and Quarantine (PPQ) program unit for various plant pests. We would issue yearly notices in the Federal Register in order to communicate changes to the lists of quarantined areas and would issue notices as needed in order to make changes to the lists of regulated articles.

Below, we discuss the proposed process that we would use for communicating changes to quarantined areas. In the course of this discussion, we also address how we would account for suppressive and generally infested areas, which are used in certain subparts within the regulations as subsets of quarantined areas.

We discuss the process that we would use in order to make changes to the lists of regulated articles. In the course of this discussion, we discuss how we would account for sections in certain subparts that exempt articles that would otherwise be regulated from regulation regarding their interstate movement, if the articles are produced, processed, cleaned, or handled in a manner that addresses plant pest risk.

We proceed sequentially through the subparts in the regulations in order to discuss instances in which we deviate from these overarching approaches, as well as to discuss minor editorial revisions that we are making to some of the subparts in order to promote clarity and consistency.

Finally, we provide public notification that a number of Federal Orders would effectively be codified if we were to finalize this proposed rule.

As we mentioned earlier in this document, the subparts in the regulations generally list quarantined areas within the regulations themselves. There are, however, three subparts that do not do so: “Subpart C—Fruit Flies,” “Subpart N—Citrus Greening and Asian Citrus Psyllid,” and “Subpart S—Pale Cyst Nematode.” In these subparts, the criteria for designation of a quarantined area are listed in the regulations, but the actual description listing all the quarantined areas is not. Rather, the description is maintained on the internet at the PPQ website for the relevant plant pest, and is annotated to indicate the last time it was changed. When the quarantined areas for the program change, the description is updated and annotated, and APHIS publishes a notice in the Federal Register informing the public that the change has occurred and describing the change to the quarantined area.

We are proposing to broaden the use of this approach from those three subparts to an overarching approach for part 301. In so doing, we would also make a slight revision to the content of the Federal Register notices required by the regulations. Whereas the regulations are currently written in a manner that makes the notices pest-specific, we would instead issue notices on a yearly basis informing the public of all revisions to quarantined areas that had occurred since the last notice was published.

Accordingly, under the proposed approach, whenever an area met criteria for designation as a quarantined area, APHIS would issue a Federal Order designating the area as such, and would update the list of quarantined areas for the relevant plant pest program, and annotate the list with the date of the update. Once a year, APHIS would issue a single notice in the Federal Register informing the public of all updates to the lists of quarantined areas that had occurred since the previous notice.

Because, under the proposed approach, lists of quarantined areas would no longer be found in the regulations, we are proposing to revise references to such lists throughout part 301.

Finally, in “Subpart I—Pink Bollworm,” “Subpart O—Witchweed,” and “Subpart R—Golden Nematode,” the regulations further divide quarantined areas into suppressive and generally infested areas. Suppressive areas are areas in which eradication of infestation is undertaken as an objective pursuant to the processes set forth in the subparts, while generally infested areas are any part of a quarantined area that is not a suppressive area.

Under our proposed framework, the lists of quarantined areas for the pink bollworm, witchweed, and golden nematode program that PPQ maintains on the internet would be annotated to indicate suppressive and generally infested areas therein. When a new quarantined area is added for these programs through issuance of a Federal Order, the Federal Order would indicate the generally infested and suppressive areas within the new quarantined area. APHIS would then update the relevant list, including any suppressive and generally infested areas, on the internet accordingly, and our yearly Federal Register notice would indicate this update. The Federal Register notice would also be used to indicate changes to the geographical boundaries of the suppressive areas or generally infested areas that had occurred since the last update (for example, if APHIS were to pursue eradication in a generally infested area, or to abandon eradication efforts in a suppressive area). Following issuance of the Federal Register notice, APHIS would archive Federal Orders covered by the Federal Register notice; this archiving would not impact the lists themselves but would ensure that web pages devoted to the Federal Orders issued for a particular program did not become unwieldy over time.

As we mentioned previously, currently, the subparts in part 301 list regulated articles in the regulations themselves, and provide for immediate designation of a particular article as a regulated article upon an APHIS determination, usually by an inspector, that the article presents a risk of spreading a particular plant pest.

Under our proposed process, the lists of regulated articles for a particular subpart would be moved from the regulations to the relevant PPQ website for the plant pest in question. The regulations would state the criteria for designating additional regulated articles for the pest, which would be identical to the criteria currently stated in the regulations for immediate designation of an article. For example, the regulations currently allow an inspector to designate a specific article as a regulated article for witchweed, if he or she determined it to “present a hazard of spread of witchweed.” In our proposed rule, the regulations for witchweed would use these same criteria (“present a hazard of spread of witchweed”) as the basis for designating additional classes of regulated articles.

If APHIS determines that the criteria for designation of a regulated article are met for a particular plant pest for which we have regulations in part 301, we would publish a notice in the Federal Register proposing to add the article to the list of regulated articles for that plant pest. The notice would also provide the basis for this determination, and would request public comment. 3

If no comments are received on the notice, or if the comments do not change the Administrator or the Deputy Administrator's determination, APHIS will publish a second notice in the Federal Register designating the article as a regulated article for that plant pest.

Because, under the proposed approach, lists of regulated articles would no longer be found in the regulations, we are proposing to revise references to such lists throughout part 301.

This change would apply to all subparts in part 301 except “Subpart S—Pale Cyst Nematode.” The pale cyst nematode program has determined that, for program-specific needs and ease of reference for stakeholders, it would be appropriate not to weblist regulated articles. We would continue to communicate any changes to the list of regulated articles for pale cyst nematode via the current rulemaking process.

Finally, “Subpart O—Witchweed” and “Subpart R—Golden Nematode” currently exempt articles that would otherwise be regulated from regulation regarding their interstate movement, if the articles are produced, processed, cleaned, or handled in a manner that addresses plant pest risk. The conditions under which a specific regulated article is exempted are listed in the regulations. Because we are proposing to move the lists of regulated articles from the regulations in part 301 to their respective PPQ web page, we are also proposing to remove the lists of exemptions from the regulations in these two subparts. Instead, the regulations would indicate that, for the witchweed and golden nematode programs, the list of regulated articles on their respective web page is annotated to indicate the conditions under which a particular regulated article is exempt from regulations.

In “Subpart C—Fruit Flies” (§§ 301.32 through 301.32-10), § 301.32-2 lists regulated articles. However, the manner in which it does so is unique within the regulations in part 301.

Paragraph (a) of that section contains a table of berries, fruits, nuts, and vegetables that are considered regulated articles for certain species of fruit flies unless the berries, fruits, nuts, or vegetables are canned, dried, or frozen below −17.8 °C (0 °F). We are proposing to move this table to the PPQ fruit fly web page.

Paragraph (b) of the section currently lists species in the family Cucurbitaceae, and states that plants of these listed species are regulated articles for melon fruit fly. We are moving the list of species from the regulations to the PPQ fruit fly web page. We are also proposing to clarify that the prohibition pertains to plants that are producing or have produced the species. We are proposing this clarification in order to indicate that a plant is still regulated, even if it no longer bears fruit. Finally, because paragraph (b) of this section would now contain our proposed notice-based process for designating new regulated articles for fruit flies, these provisions would be moved to paragraph (c).

Current paragraph (c) of the section provides that soil is a regulated article, if it is within the dripline of the plants listed in paragraph (b) of the section or plants that are producing or have produced any article listed in paragraph (a) of this section. Because the lists in paragraph (a) and paragraph (b) would both be moved to the PPQ fruit fly web page, we are proposing to revise paragraph (c) to indicate that soil is a regulated article if it is within the dripline of a plant list on that website and is annotated with an asterisk.

“Subpart D—Black Stem Rust” differs from the general structure of the other subparts in part 301. The subpart quarantines the entire conterminous United States, including the District of Columbia, for black stem rust. It designates States and portions of States as protected areas if they have eradicated rust-susceptible plants of the genera Berberis, Mahoberberis, and Mahonia under the cooperative Federal-State eradication program for black stem rust and have met other program requirements, and prohibits the interstate movement of all rust-susceptible Berberis, Mahoberberis, and Mahonia plants, seeds, fruits, and other plant parts capable of propagation, except Mahonia cuttings for decorative purposes into or through protected areas. Finally, it provides lists of species of Berberis, Mahoberberis, and Mahonia that the U.S. Department of Agriculture (USDA) has found to be rust-resistant, and allows the restricted interstate movement of such species into or through protected areas.

In our proposed rule, we are proposing to move the list of protected areas and the lists of rust-resistant species from the regulations to the PPQ black stem rust web page. We would update the list of protected areas using the same process described previously in this document for quarantined areas, and would update the list of rust-resistant species through the process described previously in this document for regulated articles.

“Subpart E—Gypsy Moth” refers to “generally infested areas,” rather than quarantined areas. However, operationally, Federal and State employees of the program have long referred to generally infested areas as “quarantined areas,” and this is the nomenclature most commonly used by regulated entities within the program. Accordingly, we are proposing to revise all uses of the term “generally infested area” in the subpart to “quarantined area.” This is, again, a change in nomenclature, and does not impact the contextual meaning of that term within the subpart.

We elected not to include “Subpart F—Japanese Beetle,” within this proposed rule. The subpart regulates only airports within quarantined areas and designates only one regulated article, aircraft at or from regulated airports. Because of this unique regulatory structure, we do not consider the notice-based processes described in this document to be appropriate or necessary for this subpart.

A 2018 Federal Order  4 (DA-2018-35) revised the criteria used within the program in order to designate an area as regulated for pink bollworm. We are proposing to incorporate these revised criteria within the regulations. We are also proposing to indicate that, as a result of that Federal Order, Florida is the only State under Federal quarantine for pink bollworm.

In “Subpart O—Witchweed,” paragraph (b) of § 301.80-3 governs the interstate movement of soil samples to laboratories for processing, testing, or analysis. Currently, footnote 4, which will be redesignated as footnote 2, lists an address from which pamphlets containing provisions for laboratory approval may be obtained. This information is outdated, and no such pamphlets currently exist. Instead, provisions for laboratory approval are obtained from a State's State Plant Health Director. We are proposing to update this information and include a web address for contact information.

The regulations in paragraph (b) also state that a list of approved laboratories is available in a supplemental regulation referenced in current footnote 5. This information is inaccurate, as PPQ no longer maintains a list of approved laboratories. We are proposing to remove the phrase “and so listed by him in a supplemental regulation” from paragraph (b), and remove the footnote.

Within “Subpart P—Imported Fire Ant,” paragraphs (a) through (c) of § 301.81-3 contain criteria for designating additional quarantined areas. We are proposing to consolidate these criteria into a single paragraph, and to make minor editorial revisions to improve clarity.

Currently footnote 3 of § 301.81-4 includes the same outdated information regarding provisions for laboratory approval for soil samples that is outlined in the discussion of witchweed above. We are proposing to update this information in the same manner as discussed above and redesignate footnote 3 as footnote 1.

Within “Subpart R—Golden Nematode,” current footnote 3 in § 301.85-3, which will be redesignated as footnote 2, contains the same outdated information regarding provisions for laboratory approval for soil samples that is outlined in the discussions of witchweed and imported fire ant above. We are proposing to update the information in the same manner as discussed above. Currently, footnote 4 contains the same inaccurate information regarding a list of approved laboratories that is outlined in the discussion of witchweed. We are proposing to remove this inaccurate information in this subpart as well by removing footnote 4.

Similarly, within “Subpart U—Karnal Bunt,” the criteria for designating a regulated area are found in paragraphs (a) through (c) of § 301.89-3. We are proposing to consolidate these criteria into a single paragraph, and to make minor editorial revisions to improve clarity.

In the same section, we are updating a reference to an obsolete statutory authority to instead point to the parallel provision within the PPA.

“Subpart X— Phytophthora Ramorum ” (§§ 301.92 through 301.92-12) distinguishes between associated articles, regulated articles, and restricted articles, and places different restrictions on the movement of these articles from a quarantined area, depending on which category they fall into.

Associated articles are nursery stock of taxa associated with P. ramorum, but not proven to be hosts. Regulated articles are nursery stock and other plant products of taxa that are proven hosts for P. ramorum. Restricted articles are bark chips or mulch of proven host plant taxa or forest stock of proven host or associated plant taxa that are grown or located in a quarantined area.

Currently, proven host taxa are listed in § 301.92-2(d), associated plant taxa are listed in § 301.92-2(e), and quarantined areas are listed in § 301.92-3(a)(3). We are proposing to move these lists of associated plant taxa, proven host taxa, and quarantined areas to the PPQ Phytophthora ramorum web page.

As we mentioned previously in this document, APHIS has often issued Federal Orders to update lists of quarantined areas and regulated articles for domestic plant pest programs. When this occurs, the relevant program updates the list of quarantined areas and regulated articles for their program at the following website: https://www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases.

If this proposed rule is finalized, we would, in most instances, remove lists of quarantined areas and regulated articles from the regulations. Therefore, we need not use rulemaking to update the lists in order to codify outstanding Federal Orders. Additionally, the lists maintained on the internet at https://www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases, which are up-to-date and reflect the issuance of the Federal Orders, would have regulatory force. Accordingly, this proposed rule would effectively codify those Federal Orders. The list of Federal Orders that would be codified in such a manner by this action can be found at: https://www.aphis.usda.gov/aphis/ourfocus/planthealth/plant-pest-and-disease-programs/pests-and-diseases/docket-codified-federal-orders.

Finally, we are making nonsubstantive changes to improve readability and conform with formatting requirements.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities.

APHIS proposes to remove from the regulations lists of areas and articles associated with various plant pests, and place the lists on the PPQ website. Specifically, the PPQ website ( http://www.aphis.usda.gov/planthealthinfo/index.shtml ) would house lists of quarantined, protected, suppressive, and generally infested areas; and lists of regulated articles, exempted articles, restricted articles, associated articles, and host articles. Changes to these lists would no longer require rulemaking. Rather, changes would be made using a notice-based regulatory process. This proposed weblisting process would only be for programs that are already listed in the regulations.

Potential cost savings are not quantified. The benefits of this proposed rule to our stakeholders would be timelier and more easily accessible notification of changing phytosanitary information. The cost savings to the Agency would come from a more simplified process ( i.e., using fewer resources) when taking emergency action to prevent the dissemination of plant pests and diseases. The notice-based approach would require less time and fewer steps than publishing a rule.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule: (1) Preempts all State and local laws and regulations that are inconsistent with this proposed rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this proposed rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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Table of Contents I. Obtaining Information and Submitting Comments II. Rulemaking Procedure III. Background IV. Plain Writing V. Availability of Documents I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2022-0049 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2022-0049. Address questions about NRC dockets to Dawn Forder, telephone: 301-415-3407, email: Dawn.Forder@nrc.gov. For technical questions contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to PDR.Resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's PDR, Room P1 B35, One White Flint North, 11555 Rockville Pike, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal holidays.

Please include Docket ID NRC-2022-0049 in your comment submission. The NRC requests that you submit comments through the Federal rulemaking website at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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 https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

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 into ADAMS.

Because the NRC considers this action to be non-controversial, the NRC is publishing this proposed rule concurrently with a direct final rule in the Rules and Regulations section of this issue of the Federal Register . The direct final rule will become effective on August 29, 2022. However, if the NRC receives any significant adverse comment by July 14, 2022, then the NRC will publish a document that withdraws the direct final rule. If the direct final rule is withdrawn, the NRC will address the comments in a subsequent final rule. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action in the event the direct final rule is withdrawn.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule.

For a more detailed discussion of the proposed rule changes and associated analyses, see the direct final rule published in the Rules and Regulations section of this issue of the Federal Register .

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] . . . establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on October 19, 2000 (65 FR 62581), that approved the NAC International NAC-UMS Universal Storage System and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1015.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885). The NRC requests comment on the proposed rule with respect to clarity and effectiveness of the language used.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2022-0049. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2022-0049); (2) click the “Subscribe” link; and (3) enter an email address and click on the “Subscribe” link.

Table of Contents I. Introduction A. Authority and Background B. Rulemaking Process C. Deviation From Appendix A II. Request for Information and Comments A. Products Addressed by This Process B. Test Procedure C. Market and Technology Assessment 1. Product Classes 2. Technology Assessment D. Screening Analysis E. Engineering Analysis 1. Efficiency Analysis 2. Cost Analysis F. Markup Analysis G. Energy Use Analysis H. Life-Cycle Cost and Payback Period Analysis 1. Installation Costs 2. Energy Prices 3. Repair and Maintenance Costs 4. Product Lifetime 5. No-New-Standards Case Efficiency Distribution I. Shipments Analysis J. National Impact Analysis K. Manufacturer Impact Analysis III. Submission of Comments I. Introduction A. Authority and Background

The Energy Policy and Conservation Act, as amended (“EPCA”), 1 Public Law 94-163 (42 U.S.C. 6291-6317, as codified) authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309)

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

In addition to specifying a list of covered residential products and commercial/industrial equipment, EPCA, as amended, contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) Specifically, for a given product to be classified as a covered product, the Secretary must determine that:

The Secretary may prescribe an energy conservation standard pursuant to 42 U.S.C. 6292(a)(20) and (b)(1), provided that such standard meets the requirements of 42 U.S.C. 6295(o) and (p), and the Secretary must also determine that:

On February 7, 2022, DOE published in the Federal Register a notice of proposed determination (“NOPD”) of miscellaneous gas products (“MGPs”) as a covered consumer product (“February 2022 NOPD”). 87 FR 6786. As proposed in the February 2022 NOPD, “miscellaneous gas products” are comprised of decorative hearths and outdoor heaters, the definitions for which are discussed in section II.A of this document. In the February 2022 NOPD, DOE presented its preliminary findings relating to the energy use of MGPs to determine whether they could be classified as a type of covered product under the requirements of 42 U.S.C. 6292(b)(1)(A) and (B). 87 FR 6786, 6790-9792 (Feb. 7, 2022). DOE also stated that it would determine if MGPs satisfy the provisions of 42 U.S.C. 6295(l)(1), if DOE proceeds with a rulemaking to establish energy conservation standards for said products. Id. at 87 FR 6788.

DOE must follow specific statutory criteria for prescribing new or amended energy conservation standards for covered products. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and (3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3))

Moreover, DOE may not prescribe a standard: (1) for certain products if no test procedure has been established for the product, or (2) if DOE determines by rule that the standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) 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)) DOE must make this determination after receiving views and comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven factors:

Further, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))

EPCA 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 a covered product. (42 U.S.C. 6295(o)(1)) 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 in 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))

Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories that warrant separate product classes and energy conservation standards with a level of energy efficiency or energy use either higher or lower than that which would apply for such group of covered products which have the same function or intended use. DOE must specify a different standard level for a type or class of 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 products within such type (or class); or (B) have a capacity or other performance-related feature which other products 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 capacity or another performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B))

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6297(d))

There are not currently any energy conservation standards for MGPs, but as discussed, DOE has proposed to determine that MGPs are a covered product. 87 FR 6786 (Feb. 7, 2022). The February 2022 NOPD addresses MGPs, which are consumer products comprising: (1) Those hearth products that are not direct heating equipment (“DHE”) ( i.e., those hearth products that are indoor or outdoor decorative hearth products), and (2) outdoor heaters. Id. at 87 FR 6788. Previous rulemaking history related to these products is discussed in section II of the February 2022 NOPD. Id. at 87 FR 6787-6788. Were DOE to ultimately determine that MGPs are a covered product, DOE would then consider whether to establish energy conservation standards for MGPs subject to the criteria in EPCA.

DOE is publishing this RFI to collect data and information to inform its decision consistent with its obligations under EPCA.

As discussed previously, DOE must follow specific statutory criteria for prescribing new or amended energy conservation standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary of Energy (“Secretary”) shall be designed to achieve the maximum improvement in energy efficiency (or for certain products specified by EPCA, water efficiency) that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

Particularly in light of the climate crisis, the significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking. 4 For example, the United States has now rejoined the Paris Agreement on February 19, 2021. As part of that agreement, the United States has committed to reducing greenhouse gas (“GHG”) emissions in order to limit the rise in mean global temperature. 5 As such, energy savings that reduce GHG emissions have taken on greater importance. Additionally, some covered products and equipment have most of their energy consumption occur during periods of peak energy demand. The impacts of these products on the energy infrastructure can be more pronounced than products with relatively constant demand. In evaluating the significance of energy savings, DOE considers differences in primary energy and FFC effects for different covered products and equipment when determining whether energy savings are significant. Primary energy and FFC effects include the energy consumed in electricity production (depending on load shape), in distribution and transmission, and in extracting, processing, and transporting primary fuels ( i.e., coal, natural gas, petroleum fuels), and thus present a more complete picture of the impacts of energy conservation standards. Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis.

To determine whether a proposed new or amended energy conservation standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:

DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.

As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE would ultimately rely to determine whether (and if so, how) to adopt energy conservation standards for consumer MGPs.

In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), “Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Certain Commercial/Industrial Equipment,” DOE notes that it is deviating from that appendix's provision that DOE will publish its final coverage determination prior to the initiation of any energy conservation standards rulemaking. 10 CFR part 430, subpart C, appendix A, section 5(c). DOE finds it appropriate to deviate from this step because DOE believes that providing an opportunity for comment on potential energy conservation standards prior to a final coverage determination for MGPs allows stakeholders an earlier opportunity to provide comment, information, and data that may help inform DOE's priority setting. DOE also notes that in the notice of proposed rulemaking (“NOPR”) published in the Federal Register on July 7, 2021, DOE proposed to amend appendix A, in relevant part, by eliminating the requirement that coverage determination rulemakings must be finalized prior to initiation of a test procedure or energy conservation standard rulemaking. 86 FR 35668, 35672. DOE explained that the coverage determination, test procedure, and energy conservation standard rulemakings are interdependent and that a coverage determination defines the product/equipment scope for which DOE can establish test procedure and energy conservation standards. It also signals that inclusion of the consumer product is necessary to carry out the purpose of EPCA ( i.e., to conserve energy and/or water). In order to make this determination, DOE needs to consider whether energy conservation standards can be established for the consumer product. If DOE cannot prescribe energy conservation standards that result in significant energy savings (42 U.S.C. 6295(o)), then making a coverage determination is not necessary as it will not result in the conservation of energy. Thus, it is important that DOE be able to gather information and provide stakeholders an opportunity to comment and provide information and data pertinent to test procedure and energy conservation standard rulemakings, during the course of DOE conducting its coverage determination rulemaking. Id.

DOE further notes that it is deviating from that appendix's provision requiring a 75-day comment period for all pre-NOPR rulemaking documents for standards. 10 CFR part 430, subpart C, appendix A, section 6(d)(2). DOE finds it appropriate to deviate from this provision and to instead provide a 30-day comment period for this RFI. DOE believes that 30 days is sufficient time to respond to this initial rulemaking document, as DOE already requested information on the MGP market in the February 2022 NOPD. See 87 FR 6786, 6794-6795 (Feb. 7, 2022). Market information developed and reviewed for the February 2022 NOPD would provide the basis for responses to the requests in this RFI. A 30-day comment period will also allow DOE to review comments received in response to this document before finalizing its coverage determination, thereby assisting the Department by helping inform its decisions regarding prioritizing any potential rulemakings for MGPs in light of its other on-going rulemakings and statutory requirements.

In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether establishing energy conservation standards for MGPs may be warranted.

This RFI addresses those products that meet the definition of MGPs as proposed in the February 2022 NOPD. 87 FR 6786, 6788 (Feb. 7, 2022). More specifically, MGPs are consumer products comprising: (1) hearth products that are not DHE ( i.e., hearth products that are indoor or outdoor decorative hearth products) and (2) outdoor heaters. Id. Further, the proposed definitions of “decorative hearth product” and “outdoor heater” are as follows:

DOE requests comment on whether the proposed definitions for “miscellaneous gas products,” “decorative hearth product,” and/or “outdoor heater” require any revisions, and if so, how those definitions should be revised.

DOE requests comment on whether additional product definitions are necessary to close any potential gaps in coverage between product types. DOE also seeks input on whether such products currently exist in the market or whether they are being planned for introduction.

In addition, DOE notes that this RFI does not address electric or oil-fired products, which were also not included in the February 2022 NOPD. DOE has tentatively determined that there is little opportunity for additional energy savings for these products, as they do not use standing pilot ignition systems.

EPCA defines “energy conservation standard” as a performance standard which prescribes a minimum level of energy efficiency or a maximum quantity of energy use; or for certain enumerated covered products, including products for which the Secretary has made a determination to classify them as covered products, a design requirement. (42 U.S.C. 6291(6)) EPCA requires that test procedures used to evaluate compliance with a performance standard be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, as determined by the Secretary, and not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3))  7

As proposed to be defined, decorative hearth products simulate a solid-fuel fireplace and/or present an aesthetic flame pattern, and are not designed to heat the space in which they are used. Given the aesthetic nature of decorative hearth products and the subjective nature of the aesthetic value, DOE has tentatively determined that establishing a performance based-test procedure that meets the statutory criteria would not be possible. Instead, a design requirement may be better-suited to improve efficiency without impacting or altering the aesthetic appeal of these products.

Similarly, as proposed to be defined, outdoor heaters are gas-fired appliances designed for use in outdoor spaces only, and which are designed to provide heat proximate to the units. The aesthetic nature of many outdoor heaters is an important part of the value they provide, with some designs featuring a prominent flame (although others have little or no visible flame). Although the use of certain technology options may reduce the energy consumption of outdoor heaters under a performance-based standard, DOE is not currently aware of any design options that would offer significant energy savings other than removal of a standing pilot ignition system (if present). Therefore, for simplicity, DOE is tentatively considering all outdoor heaters to be in a single product class. Further, DOE expects that a design requirement may be better-suited than a performance requirement to improve efficiency without impacting or altering the aesthetic appeal of outdoor heaters.

Therefore, DOE is considering whether a prescriptive design requirement would be appropriate for MGPs. Specifically, as discussed in this section and later sections, DOE is seeking information regarding a possible design standard regarding the use of a continuously-burning pilot light in these products. Because the potential energy conservation standard being investigated at this time is a design requirement and not a performance standard ( i.e., minimum efficiency or maximum energy consumption), DOE is not currently planning to develop or evaluate a potential test procedure.

DOE requests comment on whether a test procedure and performance metric that meets the EPCA criteria would be feasible for decorative hearth products and/or outdoor heaters. If so, DOE requests comment on the potential performance metric(s) and testing method(s) that would be appropriate.

The market and technology assessment that DOE routinely conducts when analyzing the impacts of a potential new or amended energy conservation standard provides information about the MGP industry that would be used in DOE's analysis throughout the rulemaking process. DOE uses qualitative and quantitative assessments to characterize the structure of the industry and market, based upon publicly-available information. The subjects addressed in this market and technology assessment include: (1) a determination of the scope of the rulemaking and product classes; (2) manufacturers and industry structure; (3) industry market shares and trends; (4) existing regulatory and non-regulatory initiatives intended to improve energy efficiency or reduce energy consumption; (5) shipments information; and (6) technologies or design options that could improve the energy efficiency of MGPs. DOE also reviews product literature, industry publications, and company websites. Additionally, DOE considers conducting interviews with manufacturers to improve its assessment of the market and available technologies for MGPs.

When evaluating and establishing energy conservation standards, DOE may divide covered products into product classes by the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6295(q)(1)) In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. ( Id. )

For MGPs, there are no energy conservation standards. As noted in section I.A of this document, DOE published a proposed determination to establish MGPs as a covered consumer product in the Federal Register on February 7, 2022. 87 FR 6786. If DOE issues a final determination of coverage for MGPs, as discussed in section II.A of this document, the proposed scope of coverage for MGPs would include decorative hearth products and outdoor heaters. A wide range of decorative hearth products are available on the market, including, for example, gas log sets, gas fire pits, gas stoves, and gas fireplace inserts. Decorative hearth products may be used indoors or outdoors. Outdoor heaters are gas-fired products that heat the area proximate to the heater and that are designed to be used outdoors. Id. at 87 FR 6788. Were DOE to propose energy conservation standards for MGPs, DOE would consider whether any type of such products has a capacity or other performance-related feature that justifies a different standard.

DOE requests feedback on whether certain decorative hearth products and/or outdoor heaters have a capacity or other performance-related feature providing unique consumer utility that impacts energy use of the product. If so, DOE requests information and data detailing the customer utility of such a feature and the corresponding impacts on energy use that would justify separate product classes ( i.e., explanation for why the presence of these performance-related features would increase energy consumption).

In analyzing the feasibility of potential new or amended energy conservation standards, DOE uses information about existing and past technology options and working prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. In consultation with interested parties, DOE intends to develop a list of technologies to consider in its analysis. That analysis may include a number of the technology options DOE previously considered as part of an energy conservation standards NOPR for certain products proposed to be defined as “hearth products” published in the Federal Register on February 9, 2015 (“the February 2015 NOPR”), as well as technologies identified by stakeholders in response to that NOPR. 8 80 FR 7082. The products evaluated in the February 2015 NOPR included certain products that would be covered under the currently proposed definition of MGPs. Id. Certain of those prior technology options that DOE identified in the February 2015 NOPR ( see 80 FR 7082, 7095 (Feb. 9, 2015)) and that may be applicable to MGPs appear in Table II.1 of this document. In addition to the technology options previously identified by DOE, stakeholders identified “on demand” pilot ignition systems as a potential alternative to traditional standing pilot ignitions. 9 The February 2015 NOPR covered hearth heaters in addition to decorative hearths and outdoor hearths, and, therefore, some of the technology options considered in that analysis may not be appropriate for MGPs. Additionally, as discussed in section 0 of this document, DOE is currently considering whether a prescriptive design requirement would be appropriate for MGPs, and, therefore, some technologies considered in the February 2015 NOPR analysis were not included in Table II.1 of this document because they related to the product's active mode power consumption.

DOE seeks information on the technologies listed in Table II.1 of this document regarding their applicability to the current market and how these technologies might potentially impact the energy efficiency and/or energy use of decorative hearth products and outdoor heaters. DOE also seeks information on how these technologies may have changed since they were considered in the February 2015 NOPR analysis. Specifically, DOE seeks information on the range of efficiencies or performance characteristics that are currently available for each technology option.

DOE also seeks comment on any other technology options that it should consider for inclusion in its analysis, such as “on demand” pilot ignition systems, and whether these technologies might impact product features or consumer utility of decorative hearth products and outdoor heaters.

The purpose of the screening analysis is to further evaluate the technologies with the potential to improve equipment efficiency to determine which technologies should be eliminated from further consideration and which ones should proceed to the engineering analysis for further consideration in the energy conservation standards rulemaking.

DOE determines whether to eliminate certain technology options from further consideration based on the following five screening criteria:

Technology options identified in the technology assessment are evaluated against these criteria using DOE analyses and inputs from interested parties ( e.g., manufacturers, trade organizations, and energy efficiency advocates). Technologies that pass through the screening analysis are referred to as “design options” in the engineering analysis. Technology options that fail to meet one or more of the five criteria are eliminated from further consideration.

DOE requests feedback on what impact, if any, the five screening criteria described in this section would have when applied to each of the technology options listed in Table II.1 of this document pertaining to decorative hearth products and outdoor heaters. Similarly, DOE seeks information regarding the effect these same criteria would have when applied to any other technology options not already identified in this document with respect to their potential use in decorative hearth products and/or outdoor heaters.

The purpose of the engineering analysis is to establish the relationship between the efficiency (or energy use) and cost of consumer MGPs. There are two elements to consider in the engineering analysis: (1) the selection of efficiency levels to analyze ( i.e., the “efficiency analysis”) and (2) the determination of product cost at each efficiency level ( i.e., the “cost analysis”). In determining the performance of higher-efficiency products, DOE considers technologies and design option combinations not eliminated by the screening analysis. For each product class, DOE estimates the baseline cost ( i.e., the manufacturer production cost (“MPC”), as well as the incremental cost for the product at efficiency levels above the baseline. The output of the engineering analysis is a set of cost-efficiency “curves” that are used in downstream analyses ( i.e., the life-cycle cost (“LCC”) and payback period (“PBP”) analyses and the national impact analysis (“NIA”)). The following sections provide further detail on DOE's engineering analysis and seek public input on specific issues pertinent to consumer miscellaneous gas products, the subject of this rulemaking.

In the analysis accompanying the February 2015 NOPR, which included consideration of decorative hearth products, DOE focused its engineering analysis on the impacts of a prescriptive design requirement that would remove the standing pilot ignition system and replace it with a system that does not use a continuously-burning pilot. 80 FR 7082, 7097 (Feb. 9, 2015).

In the February 2015 NOPR analysis for hearth products, which included decorative hearths and outdoor hearths, as well as hearth heaters (which DOE is considering in a separate rulemaking proceeding as a category of DHE products), DOE used the design option approach (described further in section II.E.1 of this document) by selecting hearth models that represented a range of hearth configurations ( e.g., vented fireplaces, vented fireplace inserts, unvented fireplace inserts, vented gas log sets, and unvented gas log sets). In light of the analytical focus on a prescriptive design requirement related to standby mode energy consumption, representative models were chosen that would allow a direct comparison between standing pilot and electronic ignition systems. DOE then used the cost assessment approach by gathering additional information using reverse-engineering methodologies, product information from manufacturer catalogs and manuals, and discussions with manufacturers and other experts on hearth products. Id. at 80 FR 7096. DOE assumed that, should standing pilot ignitions be disallowed, manufacturers would convert standing pilot models to electronic ignition models rather than match-lit models in order to provide the same level of safety, comfort, and functionality. Id. DOE expects that a similar approach to the engineering analysis would be appropriate for MGPs.

DOE seeks comment on its anticipated general approach to the engineering analysis and whether the approach used in the analysis for the February 2015 NOPR would be appropriate for an analysis of all MGPs.

DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) relying on observed efficiency levels in the market ( i.e., the efficiency-level approach), or (2) determining the incremental efficiency improvements associated with incorporating specific design options to a baseline model ( i.e., the design-option approach). Using the efficiency-level approach, the efficiency levels established for the analysis are determined based on the market distribution of existing products (in other words, based on the range of efficiencies and efficiency level “clusters” that already exist on the market). Using the design-option approach, the efficiency levels established for the analysis are determined through detailed engineering calculations and/or computer simulations of the efficiency improvements from implementing specific design options that have been identified in the technology assessment. DOE may also rely on a combination of these two approaches. For example, the efficiency-level approach (based on actual products on the market) may be extended using the design-option approach to interpolate to define “gap fill” levels (to bridge large gaps between other identified efficiency levels) and/or to extrapolate to the max-tech level (particularly in cases where the max-tech level exceeds the maximum efficiency level currently available on the market).

As stated previously, in the analysis for the February 2015 NOPR, DOE only considered prescriptive requirements. In that analysis, DOE identified electronic ignition as a design option that would be applicable to hearth products in standby mode. 80 FR 7082, 7097-7098 (Feb. 9, 2015). The prior analysis only considered as an energy conservation standard a design requirement that would disallow the use of constant-burning pilot lights. DOE expects that a similar approach considering a design requirement may be appropriate for MGPs in the current rulemaking.

DOE requests feedback on whether any case exists of a product with a constant-burning pilot for which the ignition system cannot be replaced with an alternative ignition system that does not utilize a constant-burning pilot, and if so, what the specific situations are in which this would occur. DOE also seeks information as to whether other design options could be a viable approach to reducing the energy consumption of decorative hearth products and outdoor heaters, as well as where there are limitations on the use of certain design options. DOE requests feedback on any other existing technologies that would be technologically feasible, economically justified, and would result in significant energy consumption savings for miscellaneous gas products.

For each product class, DOE selects a baseline model as a reference point against which any changes resulting from potential new or amended energy conservation standards can be measured. The baseline model in each product class represents the characteristics of common or typical products in that class ( e.g., capacity, physical size). Typically, a baseline model is one that just meets the current minimum energy conservation standards, or if no standards are in place (as is the case for miscellaneous gas products), the baseline is generally the most common or least-efficient units on the market that provides basic consumer utility. In the February 2015 NOPR, DOE tentatively determined that the standing pilot ignition system represents the baseline design in terms of energy consumption for hearth products, to the extent such products were evaluated. 80 FR 7082, 7098 (Feb. 9, 2015).

DOE requests feedback on the appropriate baseline efficiency levels and/or designs for decorative hearth products and outdoor heaters.

As part of DOE's analysis, the maximum available efficiency level is the highest-efficiency unit currently available on the market. DOE defines a “max-tech” efficiency level to represent the theoretical maximum possible efficiency if all available design options are incorporated in a model. In applying these design options, DOE would only include those that are compatible with each other and that when combined would represent the theoretical maximum possible efficiency. In many cases, the max-tech efficiency level differs from the maximum available efficiency level, because the max-tech design options are not economically feasible to implement.

Although MGPs do not currently have energy conservation standards, and test data for both decorative hearth products and outdoor heaters are limited, DOE expects that having electronic ignition (including intermittent pilot ignition systems) would necessarily result in a lower energy consumption than if electronic ignition is not present. In the February 2015 NOPR, electronic ignition was identified as providing the maximum reduction in energy use possible. 80 FR 7082, 7098 (Feb. 9, 2015). DOE used this as the max-tech design option, as it was unaware of any other design options on the market that would substantially reduce the energy consumption of hearth products during standby operation. Id.

DOE seeks input on the max-tech efficiency level and/or design for decorative hearth products and outdoor heaters. Additionally, for any max-tech efficiency level and/or design identified by stakeholders, DOE also seeks input on whether such a max-tech efficiency level would be appropriate and technologically feasible for potential consideration as possible energy conservation standards for decorative hearth products and outdoor heaters, and if not, why not.

The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including availability and reliability of public information, characteristics of the regulated product, and the availability and timeliness of purchasing the product on the market. The cost approaches are summarized as follows:

• Physical teardowns: Under this approach, DOE physically dismantles a commercially-available product, component-by-component, to develop a detailed bill of materials (“BOM”) for the product.

• Catalog teardowns: In lieu of physically deconstructing a product, DOE identifies each component using parts diagrams (available from manufacturer websites or appliance repair websites, for example) to develop the BOM for the product.

• Price surveys: If neither a physical nor catalog teardown is feasible ( e.g., tightly integrated products such as fluorescent lamps, which are infeasible to disassemble and for which parts diagrams are unavailable) or cost-prohibitive and otherwise impractical ( e.g., large commercial boilers), DOE conducts price surveys using publicly-available pricing data published on major online retailer websites and/or by soliciting prices from distributors and other commercial channels.

In the analysis for the February 2015 NOPR, DOE performed physical teardowns to generate a BOM for each product torn down. 80 FR 7082, 7098 (Feb. 9, 2015). DOE selected products for the physical teardown analysis that represented the most common configurations of products being analyzed, including some products that are now being evaluated as MGPs. In the analysis for the February 2015 NOPR, DOE conducted 14 physical teardowns to create a detailed BOM for each product type or style. Id.

The resulting BOM provided the basis for the manufacturer production cost (“MPC”) estimates. DOE converted the materials and components in the BOM to dollar values based on the price of materials, average labor rates associated with manufacturing and assembly and the cost of overhead and depreciation. DOE then applied a cost multiplier (the manufacturer markup) to convert the MPC to manufacturer selling price (“MSP”). The manufacturer markup accounts for non-production costs ( i.e., selling, general, and administrative expenses, research and development, and interest), along with profit. The resulting MSP is the price at which the manufacturer distributes a unit into commerce. The MPC and MSP were calculated for products utilizing standing pilot ignition systems and products utilizing intermittent pilot ignition systems. 80 FR 7082, 7098 (Feb. 9, 2015).

As described at the beginning of this section, the main outputs of the engineering analysis are cost-efficiency relationships that describe the estimated increases in MPC associated with higher-efficiency products for the analyzed product classes. For the February 2015 NOPR, DOE developed the cost-efficiency relationships by estimating the efficiency improvements and costs associated with incorporating an intermittent pilot ignition ( i.e., an electronic ignition) into the assumed baseline model for each hearth type. Id.

DOE requests feedback on whether, and if so how, manufacturers would incorporate the technology options listed in Table II.1 of this document to increase energy efficiency and/or reduce energy use in decorative hearth products and outdoor heaters beyond baseline. This includes information on the order in which manufacturers would incorporate the different technologies to incrementally improve the efficiencies of products. DOE also requests feedback on whether the increased energy efficiency would lead to other design changes that would not occur otherwise. Furthermore, DOE is interested in information regarding any potential impact of design options on a manufacturer's ability to incorporate additional functions or attributes in response to consumer demand.

DOE also seeks input on the increase in MPC associated with incorporating each particular design option. Specifically, DOE is interested in whether and how the costs estimated for design options presented in the February 2015 NOPR have changed since the time of that analysis. DOE also requests information on the investments necessary to incorporate specific design options, including, but not limited to, costs related to new or modified tooling (if any), materials, engineering and development efforts to implement each design option, and manufacturing/production impacts.

DOE requests comment on whether certain design options may not be applicable to (or incompatible with) specific product types.

DOE derives consumer prices based on manufacturer markups, retailer markups, distributor markups, contractor markups (where appropriate), and sales taxes. In deriving these markups, DOE determines the major distribution channels for product sales, the markup associated with each party in each distribution channel, and the existence and magnitude of differences between markups for baseline products (“baseline markups”) and higher-efficiency products (“incremental markups”). The identified distribution channels ( i.e., how the products are distributed from the manufacturer to the consumer) and estimated relative sales volumes through each channel are used in generating end-user price inputs for the LCC analysis and NIA. The markups are multipliers that are applied at each stage in the distribution channel for consumer MGPs.

In its prior analysis, DOE analyzed decorative hearths and outdoor hearth products (which included outdoor fireplaces, outdoor fireplace inserts, outdoor fire pits, outdoor gas lamps, and patio heaters). (See Chapter 3 of the 2015 NOPR TSD  10 for a detailed description of the products analyzed in that notice.) The same distribution channels were used for all products in the previous analysis. DOE utilized several sources including: (1) the Heating, Air-Conditioning & Refrigeration Distributors International (“HARDI”) 2013 Profit Report  11 to develop wholesaler mark-ups; (2) the Air Conditioning Contractors of America's (“ACAA”) 2005 financial analysis for the heating, ventilation, air-conditioning, and refrigeration (“HVACR”) contracting industry  12 to develop mechanical contractor markups, and (3) U.S. Census Bureau 2007 Economic Census data  13 for the residential and commercial building construction industry to develop general contractor markups. 80 FR 7082, 7100 (Feb. 9, 2015). DOE characterized two distribution channels to describe how hearth products pass from the manufacturer to consumers: (1) replacement market and (2) new construction.

The replacement market channel was characterized as:

The new construction distribution channel was characterized as:

For wholesalers and contractors, DOE developed baseline and incremental markups. The baseline markup relates the change in the MSP of baseline models to the change in the consumer purchase price. The incremental markup relates the change in the MSP of higher-efficiency models to the change in consumer purchase price. In addition to the markups, DOE derived State and local taxes from data provided by the Sales Tax Clearinghouse. 14 DOE derived shipment-weighted-average tax values for each region considered in the analysis. Id. DOE plans to use the most updated versions of these data sources to develop mark-ups for consumer MGPs.

DOE did not account for the retail outlets distribution channel in which the manufacturer sells the equipment to a retailer, who in turn sells it to a mechanical contractor, who in turn sells it to the consumer. DOE did not have sufficient data to estimate a separate markup for this distribution channel. Accordingly, DOE assumed that the retailer markup was similar to the wholesaler markup.

DOE is also aware that there may be two additional distribution channels for hearth products: (1) an online distribution channel where manufacturers sell the products to online retailers who in turn sell them directly to consumers; and (2) a rebranding distribution channel where wholesalers or retailers negotiate good pricing from the hearth product manufacturer based on high volumes and have the product customized to carry their name, and then send it through their normal distribution channel to the contractors. The former one mainly applies to the do-it-yourself (“DIY”) installation, which was estimated at the time of the 2015 analysis to account for a very small fraction of the total hearth products shipments. For the latter one, DOE assumes that it would have the same overall markups as the conventional distribution channels. Although manufacturers may have a lower margin in such cases, wholesalers and retailers would redistribute the profit throughout the distribution channel to set the final retail price so as to be comparable with products sold through conventional distribution channels. For the reasons mentioned above, DOE did not consider any of these additional distribution channels in the February 2015 NOPR analysis.

DOE requests information on the distribution channels outlined previously, and their relevance to decorative hearths and outdoor heaters. DOE requests information on the existence of any distribution channels other than those listed above for decorative hearths and outdoor heaters. Further, DOE seeks input on the percentage of decorative hearth products and outdoor heaters being distributed through the different distribution channels, as well as whether the share of products through each channel varies based on capacity or other features.

DOE seeks updated data, if available, and recommendations regarding data sources to establish the markups for the parties involved with the distribution of consumer MGPs.

As part of the rulemaking process, DOE conducts an energy use analysis to identify how products are used by consumers to determine the annual energy consumption of these products at issue, and to assess the energy savings potential of energy efficiency improvements. In this case, the energy use analysis is expected to represent typical energy consumption of various ignition systems in the field. DOE previously developed a sample of residential homes that use a hearth product based on the 2009 Residential Energy Consumption Survey (“RECS”). 15 80 FR 7082, 7100 (Feb. 9. 2015). DOE developed ranges of operating hours from hearth product field studies. 16 17 Id. DOE represented different modes of consumer behavior ( i.e., only using the pilot light when starting the hearth product, leaving the standing pilot light on for the entirety of the heating season, or leaving the standing pilot light on year-round) with a continuous distribution of standing pilot operating hours. Id. The pilot light operating hours for standing pilot lights coupled with the pilot light input capacity from the engineering analysis allowed DOE to calculate the annual pilot light energy use. Id. (“On demand” pilot ignition systems were not separately considered in the February 2015 NOPR analysis, and DOE did not develop separate estimates for the typical operating hours of “on demand” pilot ignition systems.) DOE also calculated the electricity use of an intermittent pilot using the representative burner input and the average duty cycle length to calculate a number of cycles, and a conservative estimates of 30 seconds on-time per ignition. Id. DOE assumed a 50 watt (“W”) representative input to derive electricity consumption. Id.

DOE also considered the space heating impact of the pilot light in its analysis. The elimination of a pilot light would mean that the home's main heating system would have to operate somewhat more and the air conditioning system somewhat less in cases where the pilot is on year-round. DOE based this analysis on a report from the Canadian Centre for Housing Technology. 18 DOE used this study to estimate the ratio of energy consumed by the standing pilot light to the heat delivered to the conditioned space for each vented hearth product group. For unvented hearth products, DOE assumed that the majority of the heat from the pilot is input into the space. For outdoor units, none of the energy consumed by the pilot is considered useful heat. 80 FR 7082, 7101 (Feb. 9, 2015).

In 2017, the Lawrence Berkeley National Laboratory conducted a survey (“2017 Hearth Survey”) of 2,100 homes with hearth products. 19 The 2017 Hearth Survey defined hearths as a gas-fired or electrical appliance that displays a flame or a flame pattern. Hearth product types are fireplaces, or fireplace inserts, gas log sets that are typically inserted into an existing empty hearth, freestanding stoves, or outdoor units. 20 The survey provided hearth product characteristics, usage data, and repair and maintenance costs. The hearth product characteristics include the hearth product type, fuel type, ignition system type, features, venting, and installation details. The usage information includes seasonal usage of the main burner and standing pilot (if present), daily usage, and the primary utility (whether decorative or for heating). DOE plans to use this survey for the operating hours of decorative hearth products. The survey does not provide product characteristics or usage data for outdoor heaters. 21

In the previous analysis, DOE used an input capacity of 35,000 British thermal units per hour (“Btu/h”) to represent decorative fireplace main burners and 1,000 Btu/h to represent standing pilot light input capacity, and calculated annual national intermittent ignition electricity use of a decorative fireplace to be 29 kilowatt-hours per year (“kWh/yr”). (See chapter 7 of the February 2015 NOPR TSD). 22 DOE did not have separate estimates for other decorative hearth products, such as gas log sets, gas fire pits, gas stoves, or gas fireplace inserts. ( Id. ) Further, DOE used an input capacity of 50,000 Btu/h to represent the main burners of outdoor products and 1,000 Btu/h to represent the standing pilots, and calculated annual national intermittent ignition electricity use of an outdoor product to be 29 kWh/yr. ( Id. ) The outdoor product category in the 2015 NOPR included decorative products and heaters; DOE did not develop separate estimates for outdoor decorative hearths and outdoor heaters.

DOE requests comment on the national average input capacities, standing pilot input capacities, and annual intermittent ignition electricity use estimated in the February 2015 NOPR for decorative fireplace main burners and outdoor products (the outdoor product class included decorative hearths and heaters) Specifically, DOE requests comment on the applicability of these values to currently available decorative hearth products and outdoor heaters.

DOE requests comment on the typical operating hours of “on demand” pilot ignition systems, and whether the energy consumption of such ignition systems when lit is comparable to that of continuously-burning pilot lights. Specifically, DOE requests data and information about the frequency with which these systems “time-out” ( i.e., automatically extinguish the pilot light), the typical length of time before “time-out,” and how often these pilot lights need to be relit. DOE also requests comment on the market share of “on demand” pilot ignition systems for decorative hearth products.

DOE requests comment on the approach of using the 2017 Hearth Survey to develop the decorative hearth product characteristics and usage data to measure the energy use of standing pilot lights of decorative hearths.

DOE requests data on the breakdown of ignition types (standing pilot, on demand pilot, intermittent, and match lit) and usage data for outdoor heaters. DOE also seeks comment on whether the ignition types and usage of outdoor heaters vary significantly from outdoor decorative hearths.

DOE conducts the LCC and PBP analysis to evaluate the economic effects of potential energy conservation standards for MGPs on individual consumers, which usually involves a reduction in operating cost and an increase in purchase cost. For any given efficiency level, DOE measures the PBP and the change in LCC relative to an estimated baseline level. The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of the total installed cost and operating costs (expenses for energy use, maintenance, and repair). Inputs to the calculation of total installed cost include the purchase cost of the product—which includes MSPs, distribution channel markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs, equipment lifetimes, discount rates, and the year that compliance with new and amended standards is required.

Installation costs represent the labor and materials required to install an MGP. However, in the analysis for the February 2015 NOPR, DOE assumed that because a pilot light is a component of a hearth product, the installation cost for most installations was $0. 80 FR 7082, 7102 (Feb. 9, 2015). In a fraction of installations, the intermittent pilot could necessitate an electrical connection (although many are battery powered). For these cases, DOE used RS Means 2013 Residential Cost Data  23 to determine the material and labor costs associated with a new electrical connection and electrical grounding. Id. DOE plans to take this same approach, but with the most recent version of RS Means, which is currently 2021.

DOE requests comment on its approach to installation costs and the use of RS Means 2021 for labor and material costs.

In the analysis for the February 2015 NOPR, DOE used data from the Energy Information Administration (“EIA”) on average prices in various States and regions  24 25 26 to assign an energy price to each house in the sample based on its location. 80 FR 7082, 7102 (Feb. 9, 2015). Average electricity prices and natural gas prices from the EIA data were adjusted using seasonal marginal price factors to derive monthly marginal electricity and natural gas prices. Id. Future prices were estimated using the reference case projection of the Annual Energy Outlook (“ AEO ”) 2014. 27 Id. DOE plans to use a similar approach and with updated data from the EIA and AEO 2022.

DOE requests comment on its approach to develop electricity and natural gas prices for consumer MGPs.

Repair costs are associated with repairing or replacing components in the MGPs that have failed, whereas maintenance costs are routine annual costs associated with the continued proper operation of equipment. The 2017 Hearth Survey asked respondents about the average cost and frequency of hearth repairs and maintenance over the lifetime of the product. Repair categories included in the survey were ignition failure, controls failure, combustion damage, and other. Maintenance categories included in the survey were chimney cleaning, firebox cleaning, exterior cleaning, and other. 28 DOE intends to use this data along with data from RS Means about ignition system repairs to estimate the repair and maintenance costs of MGPs. In the analysis for the February 2015 NOPR, DOE assumed that the cost of repairing an intermittent pilot was 44 percent higher than for units with standing pilots. 80 FR 7082, 7103 (Feb. 9, 2015).

DOE intends to use the same repair and maintenance categories, with the exception of chimney maintenance, for outdoor heaters.

DOE requests comment on the repair and maintenance categories included in the 2017 Hearth Survey and whether they apply to decorative hearths and outdoor heaters.

DOE requests comment on the assumption that the cost of repairing an intermittent pilot is 44 percent higher than the cost of a standing pilot repair.

DOE requests information and data on the frequency of repair and repair costs for decorative hearth heaters and outdoor heaters for the technology options listed in Table II.1 of this document. While DOE is interested in information regarding each of the listed technology options, the Department is also interested in whether consumers simply replace the products when they fail as opposed to repairing them.

Product lifetime is the age at which a product is retired from service. In the analysis for the February 2015 NOPR, DOE developed a hearth product survival function, which provides a range of minimum to maximum lifetime, as well as an average lifetime. Furthermore, DOE assumed that the lifetime of the ignition device is the same as the lifetime of the hearth product. 80 FR 7082, 7103 (Feb. 9, 2015). The average lifetime was estimated to be 16 years. Id.

DOE requests comment on whether the average lifetime of 16 years for decorative hearth products that was used in the analysis for the February 2015 NOPR is still a valid estimate, and whether such estimate is appropriate for all MGPs.

To estimate the share of consumers affected by a potential energy conservation standard, DOE's LCC and PBP analysis considers the projected distribution ( i.e., market shares) of product efficiencies that consumers would be expected to purchase in the first compliance year in the base case ( i.e., the case without new or amended energy conservation standards). DOE intends to develop the no-new-standards case efficiency distribution using data from the 2017 Hearth Survey indicate that 71 percent of decorative hearths use a standing pilot, 18 percent use intermittent ignition, and 12 percent are match lit. 29 The 2017 Hearth Survey did not include data specifically for outdoor heaters, but instead for all outdoor products (including decorative products and heaters). The data for outdoor products indicate that 48 percent use a standing pilot, that 15 percent use intermittent ignition, and that 37 percent are match lit. 30

DOE requests comment on the distribution of ignition types from the 2017 Hearth Survey, and whether such estimates remain valid.

DOE requests data on the breakdown of ignition systems for outdoor heaters, particularly the percentage of outdoor heaters that use standing pilots, intermittent ignition, and match lit.

DOE typically develops shipments forecasts of a covered product as an input to calculate the national impacts of potential new or amended energy conservation standards on energy consumption, net present value (“NPV”) of consumer benefits and costs, and future manufacturer cash flows. DOE shipments projections are based on available historical data broken out by product group. Current sales estimates allow for a more accurate model that captures recent trends in the market.

In the analysis for the February 2015 NOPR, DOE relied on historical shipments data from the Hearth, Patio, and Barbeque Association (“HPBA”) and manufacturer interviews for hearth products, as shown in Table II.2 of this document. The HBPA shipments values included decorative hearth products and hearth heaters. Outdoor heater shipment estimates were based on manufacturer interviews. 31

DOE requests annual sales data ( i.e., number of shipments) for decorative hearth products and outdoor heaters. If disaggregated fractions of annual sales are not available based on these classifications, DOE requests more aggregated fractions of annual sales. If available, DOE requests the annual shipments information for the years 2014 to 2021.

The purpose of the NIA is to estimate the aggregate economic impacts of potential energy conservation standards at the national level. The NIA assesses the potential NES and the national NPV of total consumer costs and savings that would be expected to result from new or amended standards at specific efficiency levels over 30 years of shipments. An important component of the NIA is the trend in energy efficiency in the no-new-standards case over the 30-year analysis period. In the analysis for the February 2015 NOPR, DOE assumed a constant efficiency trend over the 30-year period. 80 FR 7082, 7104 (Feb. 9, 2015).

DOE requests data on the expected future growth trends of decorative hearth products and outdoor heaters by ignition type (standing pilot, intermittent ignition, and match lit).

The purpose of the manufacturer impact analysis (“MIA”) is to identify and quantify the estimated financial impacts of any new or amended energy conservation standards on manufacturers of consumer MGPs, and to evaluate the potential impacts of such standards on direct employment and manufacturing capacity. The MIA includes both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model adapted for each product in this analysis, with the key output being industry net present value (“INPV”). The qualitative part of the MIA addresses the potential impacts of energy conservation standards on manufacturing capacity and industry competition, as well as factors such as product characteristics, impacts on particular subgroups of firms, and important market and product trends.

As part of the MIA, DOE intends to analyze impacts of potential energy conservation standards on subgroups of manufacturers of covered products, including domestic small business manufacturers. DOE uses the Small Business Administration's (“SBA”) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the applicable North American Industry Classification System (“NAICS”) code. 32 Manufacturing of outdoor heaters is classified under NAICS 333414, “Heating Equipment (except Warm Air Furnaces) Manufacturing,” and the SBA sets a threshold of 500 employees or less for a domestic entity to be considered a small business in this category. For decorative hearth products, DOE will rely on NAICS 337124, “Metal Household Furniture Manufacturing,” and the SBA sets a threshold of 750 employees or less for a domestic entity to be considered a small business in this category. These employee thresholds include all employees in a business's parent company and any other subsidiaries.

One aspect of assessing manufacturer burden involves examining the cumulative impact of multiple DOE standards and the product-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing 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 appliance efficiency.

To the extent feasible, DOE seeks the names and contact information of any domestic or foreign-based manufacturers that distribute decorative hearth products and outdoor heaters in the United States.

DOE identified small businesses as a subgroup of manufacturers that could be disproportionally impacted by potential energy conservation standards for consumer MGPs. DOE requests the names and contact information of small business manufacturers, as defined by the SBA's size thresholds, that manufacture decorative hearth products and outdoor heaters in the United States. In addition, DOE requests comment on any other manufacturer subgroups that could be disproportionally impacted by potential energy conservation standards for consumer MGPs. DOE requests feedback on any potential approaches that could be considered to address impacts on such manufacturers, including small businesses.

DOE requests information regarding the cumulative regulatory burden impacts on manufacturers of decorative hearth products and outdoor heaters associated with: (1) other DOE energy conservation standards applying to different products or equipment that these manufacturers may also make and (2) product-specific regulatory actions of other Federal agencies. DOE also requests comment on its methodology for computing cumulative regulatory burden and whether there are any flexibilities it can consider that would reduce this burden while remaining consistent with the requirements of EPCA.

DOE invites all interested parties to submit in writing by the date specified in the DATES section of this document, comments and information on matters addressed in this document and on other matters relevant to DOE's consideration of energy conservations standards for MGPs. After the close of the comment period, DOE will review the public comments received and may begin collecting data and conducting the analyses discussed in this document.

Submitting comments via www.regulations.gov. The www.regulations.gov web page requires you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies Office staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment 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. If this instruction is followed, 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 www.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 www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.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 www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (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, written in English, and 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.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination.

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).

DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandardsQuestions@ee.doe.gov.

This document of the Department of Energy was signed on June 9, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Section 954 of the Dodd-Frank Act added Section 10D to the Securities Exchange Act of 1934  1 (“Exchange Act”), which provides that the Commission require national securities exchanges and national securities associations to prohibit the listing of any security of an issuer that does not develop and implement a policy providing for the recovery of erroneously awarded compensation and for disclosure of that policy. As described more fully in the Proposing Release, 2 under the proposed rules, an issuer would be subject to delisting if it does not adopt a compensation recovery policy that complies with the applicable listing standard, disclose the policy in accordance with Commission rules, and comply with the policy's recovery provisions. The Commission previously reopened the comment period for the Proposing Release to allow interested persons further opportunity to analyze and comment upon the proposed rules in light of developments since the publication of the Proposing Release and our further consideration of the Section 954 mandate. 3 The Reopening Release put forth additional requests for comment on potential revisions to the proposal and sought additional comment on the proposal. The Reopening Release was published for comment in the Federal Register on October 21, 2021, and the comment period closed on November 22, 2021.

The staff of the Division of Economic and Risk Analysis has prepared a memorandum that provides additional analysis and data on compensation recovery policies and accounting restatements. Specifically, the staff memorandum (i) discusses the increase in voluntary adoption of compensation recovery policies by issuers; (ii) provides estimates of the number of additional restatements that would trigger a compensation recovery analysis if, as the Commission described in the Reopening Release, the rules were extended to include all required restatements made to correct an error in previously issued financial statements; and (iii) briefly discusses some potential implications for the costs and benefits of the proposed rules.

We believe that the information presented in the memorandum has the potential to be informative for evaluating the proposed rules. We are, therefore, reopening the comment period for an additional 30 days to permit interested parties to comment on the staff memorandum, which has been included in the comment file.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register OMB Office of Management and Budget NPRM Notice of Proposed Rulemaking (Advance, Supplemental) § Section U.S.C. United States Code II. Background, Purpose and Legal Basis

The Virginian Department of Transportation, who owns and operates the SR223 (Gwynn's Island) Bridge, across Milford Haven, mile 0.1, at Hudgins, Virginia, has requested this modification to allow the drawbridge to be maintained in the closed-to-navigation position to facilitate maintenance of the drawbridge.

The SR223 (Gwynn's Island) Bridge, across Milford Haven, mile 0.1, at Hudgins, Virginia has a vertical clearance of 12 feet above mean high water in the closed position and unlimited vertical clearance above mean high water in the open position. The current operating schedule for the drawbridge is published in 33 CFR 117.5.

This proposed rule is necessary to facilitate safe and effective bridge maintenance of the drawbridge, while providing for the reasonable needs of navigation. Vessels that can safely transit through the bridge in the closed position with the reduced clearance may do so, if at least a thirty-minute notice is given, to allow for navigation safety. The SR223 (Gwynn's Island) Bridge is the only land-based method for access on and off Gwynn's Island, therefore, placing the bridge in the open position to perform extensive bridge maintenance would adversely affect residents on the island.

Under this proposed rule, the drawbridge will be maintained in the closed-to-navigation position twenty-four hours a day, seven days a week from 2 a.m. on August 19, 2022, through 11 p.m. on April 15, 2023. This proposed rule is necessary to accommodate extensive maintenance on the SR223 (Gwynn's Island) Bridge.

The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels unable to pass through the bridge in the closed position. Vessels that can safely transit through the bridge in the closed position with the reduced vertical clearance may do so, if at least a thirty-minute notice is given, to allow for navigation safety.

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on these statutes and Executive Orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is a result of pre rulemaking coordination with maritime stakeholders including federal agencies. This proposed rule effectively balances the competing interests of land and maritime transportation.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV, A above this proposed rule would not have a significant economic impact on any vessel owner or operator .

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on 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. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal Decision Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0226 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have provided. For more about privacy and submissions in response to this document, see DHS's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

I. Public Participation and Request for Comments A. Submitting Comments

If you submit a comment, please include the docket number for the NPRM (FMCSA-2022-0001), indicate the specific section of the UCR Plan's response (FMCSA-2022-0001-0010) to which your comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to https://www.regulations.gov/document/FMCSA-2022-0001-0002, click “Comment,” and type your comment into the text box on the following screen.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the UCR Plan's response contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the UCR Plan's response, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the NPRM. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington DC 20590-0001. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this rulemaking.

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2022-0001/document and choose the document to review. To view comments, click this NPRM, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

DOT solicits comments from the public to better inform its regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL 14—Federal Docket Management System), which can be reviewed at https://www.govinfo.gov/content/pkg/FR-2008-01-17/pdf/E8-785.pdf.

The January 24, 2022, NPRM (87 FR 3489) requested public comment on proposed reductions in the annual registration fees collected from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies for the UCR Plan and Agreement for the 2023 registration year and subsequent registration years.

The comment period for the NPRM closed on February 23, 2022. After that date, FMCSA contacted the UCR Plan and requested additional information to aid Agency deliberations and decision making in response to a comment submitted to the NPRM. The UCR Plan provided the requested information, and FMCSA placed both its request and the UCR Plan's response in the docket. FMCSA received a request from OOIDA to reopen the comment period. 1 OOIDA requested the comment period be reopened for “no less than 60 days” to allow for review and comment on the response submitted by the UCR Plan. The information submitted by the UCR Plan is clearly related to the recommendation for an adjustment in the fees submitted by the UCR Plan, and the comments already received from OOIDA and others. The Agency is limiting the reopening to 14 days so that it can quickly finalize a rule adjusting UCR Plan and Agreement fees prior to the opening of the registration period on October 1, 2022, for the next registration year beginning on January 1, 2023. Accordingly, FMCSA reopens the comment period until June 28, 2022 for the limited purpose of receiving comments on the data and information submitted by the UCR Plan in its response dated May 9, 2022.

Background

Migratory game birds are those bird species so designated in conventions between the United States and several foreign nations for the protection and management of these birds. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is authorized to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any such bird, or any part, nest, or egg” of migratory game birds can take place and to adopt regulations for this purpose. These regulations, which are updated annually, must give due regard to “the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” (16 U.S.C. 704(a)). The Secretary of the Interior has delegated to the Service the lead Federal responsibility for managing and conserving migratory birds in the United States; however, migratory bird management is a cooperative effort of Federal, State, and Tribal governments.

In response to Tribal requests for recognition of their reserved hunting rights and, for some Tribes, recognition of their authority to regulate hunting by both Tribal and nontribal members on their reservations, the Service developed guidelines for establishing special migratory bird hunting regulations for Indian Tribes (53 FR 31612, August 18, 1988). The guidelines include possibilities for:

(1) On-reservation hunting by both Tribal and nontribal members, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);

(2) On-reservation hunting by Tribal members only, outside of the usual Federal frameworks for season dates and length, and for daily bag and possession limits; and

(3) Off-reservation hunting by Tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must be consistent with the closed season on migratory game birds between March 10 and September 1 (exclusive of these dates) mandated by the 1916 Convention between the United States and Great Britain (for Canada/cackling geese) for the Protection of Migratory Birds (Treaty). The guidelines apply to those Tribes having recognized reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and on ceded lands. They also apply to establishing migratory bird hunting regulations for nontribal members on all lands within the exterior boundaries of reservations where Tribes have full wildlife management authority over such hunting or where the Tribes and affected States otherwise have reached agreement over hunting by nontribal members on lands owned by non-Indians within the reservation.

Tribes usually have the authority to regulate migratory bird hunting by nonmembers on Indian-owned reservation lands, subject to Service approval. The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing hunting by non-Indians on these lands. In such cases, we encourage the Tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a Tribe and State with the aim of facilitating an accord. We also will consult jointly with Tribal and State officials in the affected States where Tribes wish to establish special hunting regulations for Tribal members on ceded lands.

Because of past questions regarding interpretation of what events trigger the consultation process, as well as who initiates it, we provide the following clarification: We routinely provide Federal Register publications and biological status reports pertaining to migratory bird management and regulations online for all State Directors, Tribes, and other interested parties. It is the responsibility of the States, Tribes, and others to notify us of any concern regarding proposed and final regulations. When we receive such notification, we will initiate consultation.

Our guidelines for establishing special migratory bird hunting regulations for Indian Tribes provide for the continued harvest of waterfowl and other migratory game birds by Tribal members on reservations where such harvest has been a customary practice. We do not oppose this harvest, provided it does not take place during the closed season defined by the Treaty and does not adversely affect the status of the migratory bird resource. Before developing the guidelines, we reviewed information on the status of migratory bird populations and Tribal member participation in migratory bird hunting on Federal Indian reservations and evaluated the potential impact of Tribal member hunting on the migratory bird resource. We concluded that the impact of migratory bird harvest by Tribal members hunting on their reservations is minimal.

We conclude the guidelines provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian Tribes while ensuring that the migratory bird resource receives necessary protection. The conservation of this important international resource is paramount. While the guidelines should not be viewed as inflexible, we note that they have been employed successfully since 1985. We should stress here, however, that use of the guidelines is not mandatory, and no action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.

On August 31, 2021, we published in the Federal Register (86 FR 48649) a proposal to amend 50 CFR part 20 to establish open hunting seasons and daily bag and possession limits for certain designated groups or species of migratory game birds for 2022-23 in the contiguous United States, Alaska, Hawaii, Puerto Rico, and the U.S. Virgin Islands. The proposal provided a background and overview of the migratory bird hunting regulations process and addressed the establishment of seasons, limits, and other regulations for hunting migratory game birds. The proposed rule also invited proposals from Tribes that want to establish special hunting regulations for the 2022-23 migratory game bird hunting season.

For the 2022-23 migratory game bird hunting season, we received requests from 29 Tribes and Indian organizations for special hunting regulations. In this proposed rule, we respond to these 29 requests, and they are identified in paragraphs (a)-(cc) below. We actively solicit regulatory proposals from other Tribal groups that are interested in working cooperatively for the benefit of waterfowl and other migratory game birds. We encourage Tribes to work with us to develop agreements for management of migratory bird resources on Tribal lands.

The proposed frameworks for migratory game bird hunting regulations were published in the Federal Register on February 2, 2022 (87 FR 5946). As previously discussed, no action is required by Tribes wishing to observe migratory bird hunting regulations established by the State(s) where they are located.

Below are the proposed special migratory bird hunting regulations for the 2022-23 seasons based on requests from Tribes that meet the established criteria or have recently proposed special hunting regulations. Before developing the proposed hunting regulations, we reviewed information on the status of migratory bird populations and expected harvest associated with these regulations and evaluated the potential impact of this harvest on the migratory bird resource. We concluded that the impact of migratory bird harvest associated with these special regulations is minimal, and we propose to approve all the Tribal requests.

For the past several years, the Confederated Salish and Kootenai Tribes and the State of Montana have entered into cooperative agreements for the regulation of hunting on the Flathead Indian Reservation. The State and the Tribes are currently operating under a cooperative agreement signed in 1990, which addresses fishing and hunting management and regulation issues of mutual concern. This agreement enables all hunters to utilize waterfowl hunting opportunities on the reservation.

As in the past, Tribal regulations for nontribal members would be at least as restrictive as Federal frameworks for the Pacific Flyway portion of Montana. Goose, duck, and coot season dates would also be at least as restrictive as Federal frameworks for the Pacific Flyway portion of Montana. Shooting hours for waterfowl hunting on the Flathead Reservation are sunrise to sunset. Steel shot or other federally approved nontoxic shot are the only legal shotgun loads allowed on the reservation for waterfowl or other game bird hunting.

For Tribal members, the Tribe requested duck and goose seasons September 1, 2022, through March 10, 2023. Daily bag and possession limits were not proposed for Tribal members.

The requested season dates and bag limits are similar to past regulations. Harvest levels are not expected to change significantly. Standardized check station data from the 1993-94 and 1994-95 hunting seasons indicated no significant changes in harvest levels and that a large majority of the harvest is by nontribal members.

Since 1996, the Service and the Fond du Lac Band of Lake Superior Chippewa Indians have cooperated to establish special migratory bird hunting regulations for Tribal members. The Fond du Lac's proposal covers land set apart for the band under the Treaties of 1837 and 1854 in northeastern and east-central Minnesota and the Band's Reservation near Duluth.

The band's requested 2022-23 seasons are essentially the same as those approved last year. The requested 2022-23 waterfowl hunting season regulations for Fond du Lac are as follows:

A. 1854 and 1837 Ceded Territories:

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 18 ducks, including no more than 12 mallards or 9 of any other species.

B. Reservation:

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 12 ducks, including no more than 8 mallards or 6 of any other species.

A. 1854 and 1837 Ceded Territories:

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 15 mergansers, including no more than 6 hooded mergansers.

B. Reservation:

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 10 mergansers, including no more than 4 hooded mergansers.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 20 Canada/cackling geese.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 3 sandhill cranes. A crane carcass tag is required prior to hunting.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 2 swans. Swan carcass tags are required prior to hunting.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 20 coots and common gallinules in the aggregate.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 25 sora and Virginia rails in the aggregate.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 8 snipe.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 3 woodcock.

Season Dates: September 1-November 30, 2022.

Daily Bag Limit: 30 mourning doves.

The following general conditions apply:

1. While hunting waterfowl, a Tribal member must carry on his/her person a valid Ceded Territory License.

2. Shooting hours for migratory birds are one-half hour before sunrise to one-half hour after sunset.

3. Except as otherwise noted, Tribal members will be required to comply with Tribal codes that will be no less restrictive than the provisions of chapter 10 of the Model Off-Reservation Code. Except as modified by the Service rules adopted in response to this proposal, these amended regulations parallel Federal requirements in 50 CFR part 20 as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting.

4. Band members in each zone will comply with State regulations providing for closed and restricted waterfowl hunting areas.

5. There are no possession limits for migratory birds. For purposes of enforcing bag limits, all migratory birds in the possession or custody of band members on ceded lands will be considered to have been taken on those lands unless tagged by a Tribal or State conservation warden as having been taken on-reservation. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.

The band anticipates harvest will be fewer than 250 ducks and geese, and fewer than 10 sandhill cranes and 10 trumpeter swans.

In the 1995-96 migratory bird seasons, the Grand Traverse Band of Ottawa and Chippewa Indians and the Service first cooperated to establish special regulations for waterfowl. The Grand Traverse Band is a self-governing, federally recognized Tribe located on the west arm of Grand Traverse Bay in Leelanau County, Michigan. The Grand Traverse Band is a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986-87 hunting season.

For the 2022-23 season, the Tribe requested a duck season during September 1, 2022, through January 20, 2023. The daily bag limit would be 35 ducks and include no more than 8 pintail, 4 canvasbacks, 5 hooded mergansers, 8 black ducks, 10 wood ducks, 8 redheads, and 20 mallards (only 10 of which may be females).

For Canada/cackling geese and snow geese, the Tribe requested a season during September 1, 2022, through February 15, 2023. For white-fronted geese and brant, the Tribe requested a season during September 20 through December 30, 2022. The daily bag limit for Canada/cackling geese and snow geese would be 15 of each/in the aggregate, and the daily bag limit for white-fronted geese, including brant, would be 5 of each/in the aggregate. We further note that, based on available data (of major goose migration routes), it is unlikely that any Canada/cackling geese from the Southern James Bay Population will be harvested by the Tribe.

For woodcock, the Tribe proposes a season during September 1 through November 14, 2022. The daily bag limit will not exceed 5 woodcock.

For mourning doves, the Tribe proposes a season during September 1 through November 14, 2022. The daily bag limit would be 25 mourning doves.

For sandhill cranes, the Tribe proposes a season during September 1 through November 14, 2022. The daily bag limit would be 2 and a season limit of 4 sandhill cranes.

For snipe and rails (sora and Virginia Rail), the Tribe proposes a season during September 1 through November 14, 2022. The daily bag limit would be 10 of each species.

Shooting hours would be from one-half hour before sunrise to one-half hour after sunset. All other Federal regulations contained in 50 CFR part 20 would apply including required use of nontoxic shot. The Tribe proposes to monitor harvest through game bag checks, patrols, and mail surveys. Harvest surveys from the 2013-14 hunting season indicated that approximately 30 Tribal members harvested an estimated 100 ducks and 45 Canada/cackling geese.

Since 1985, various bands of the Lake Superior Tribe of Chippewa Indians have exercised judicially recognized, off-reservation hunting rights for migratory birds in Wisconsin. The specific regulations were established by the Service in consultation with the Wisconsin Department of Natural Resources and the Great Lakes Indian Fish and Wildlife Commission (GLIFWC), an intertribal agency exercising delegated natural resource management and regulatory authority from its member Tribes in portions of Wisconsin, Michigan, and Minnesota. Beginning in 1986, a Tribal season on ceded lands in the western portion of the Michigan Upper Peninsula was developed in coordination with the Michigan Department of Natural Resources. We have approved regulations for Tribal members in both Michigan and Wisconsin since the 1986-87 hunting season. In 1987, GLIFWC requested, and we approved, regulations to permit Tribal members to hunt on ceded lands in Minnesota, as well as in Michigan and Wisconsin. The States of Michigan and Wisconsin originally concurred with the regulations, although both Wisconsin and Michigan have raised various concerns over the years. Minnesota did not concur with the original regulations, stressing that the State would not recognize Chippewa Indian hunting rights in Minnesota's treaty area until a court with jurisdiction over the State acknowledges and defines the extent of these rights. In 1999, the U.S. Supreme Court upheld the existence of the Tribes' treaty reserved rights in Minnesota v. Mille Lacs Band, 199 S. Ct. 1187 (1999).

We acknowledge all of the States' concerns but point out that the U.S. Government has recognized the Indian treaty reserved rights, and that acceptable hunting regulations have been successfully implemented in Minnesota, Michigan, and Wisconsin. Consequently, in view of the above, we have approved regulations since the 1987-88 hunting season on ceded lands in all three States. In fact, this recognition of the principle of treaty reserved rights for band members to hunt and fish was pivotal in our decision to approve a 1991-92 season for the 1836 ceded area in Michigan. Since then, in the 2007 Consent Decree, the 1836 Treaty Tribes and the Michigan Department of Natural Resources and Environment established court-approved regulations pertaining to off-reservation hunting rights for migratory birds.

For 2022, GLIFWC proposes off-reservation special migratory bird hunting regulations on behalf of the member Tribes of the Voigt Intertribal Task Force of GLIFWC (for the 1837 and 1842 Treaty areas in Wisconsin and Michigan), the Mille Lacs Band of Ojibwe and the six Wisconsin Bands (for the 1837 Treaty area in Minnesota), and the Bay Mills Indian Community (for the 1836 Treaty area in Michigan). Member Tribes of the Task Force are as follows:

This year, GLIFWC requested operational use of enhanced methods of take (electronic calls and handheld nets) beginning with the 2022-23 hunting season in the 1837 and 1842 Treaty Areas. These methods were authorized over the past three hunting seasons as part of an experimental season; however, limited use of these methods by Tribal hunters made evaluation of their use difficult. The Service agreed to allow use of these enhanced methods of take for the next two hunting seasons to aid in evaluation, and a Memorandum of Agreement (MOA) is being developed with GLIFWC.

Under GLIFWC's proposed 2022-23 regulations, GLIFWC expects total ceded territory harvest to be approximately 2,000 to 3,000 ducks, 500 to 900 geese, fewer than 60 sandhill cranes, and 25 swans (trumpeter and tundra in the aggregate), based on the results from the 5 most recent harvest surveys.

Harvest surveys conducted after the 1996, 1997, 1998, 2001, 2004, 2007, 2008, 2011, 2012, 2015, 2018, 2019 and 2020 Tribal seasons indicate that Tribal off-reservation harvest has averaged approximately 1,500 ducks and 375 geese annually during this period. Due to the limited distribution of doves and dove habitat in the ceded territory, and the relatively small number of Tribal off-reservation migratory bird hunters, dove harvest is negligible. Two sandhill cranes were reported harvested in each of the first three Tribal crane seasons (2012-2014), 3 in 2015, 0 in 2016, 15 in 2017, 31 in 2018, 24 in 2019, and 36 in 2020. No swans were harvested in the first three Tribal swan seasons (2014-2016), but two swans were harvested in 2017 and 2018, respectively, nine in 2019, and none in 2020. All swans harvested have been trumpeters.

The proposed 2022-23 waterfowl hunting season regulations apply to all treaty areas (except where noted) for GLIFWC as follows:

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 50 ducks in the 1837 and 1842 Treaty Area; 30 ducks in the 1836 Treaty Area.

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 10 mergansers.

Season Dates: September 1-December 31, 2022. In addition, any portion of the ceded territory that is open to State-licensed hunters for goose hunting outside of these dates will also be open concurrently for Tribal members.

Daily Bag Limit: 20 geese in the aggregate.

A. Coots and Common Gallinules:

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 20 coots and common gallinules in the aggregate.

B. Sora and Virginia Rails:

Season Dates: September 1-December 31, 2022.

Daily Bag and Possession Limits: The daily bag limit is 20 sora and Virginia rails in the aggregate, and the possession limit is 25 sora and Virginia rails in the aggregate.

C. Snipe:

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 16 snipe.

D. Woodcock:

Season Dates: 1836 Ceded Territory: September 1-December 31, 2022; 1837 and 1842 Ceded Territories: September 3-December 31, 2022.

Daily Bag Limit: 10 woodcock.

E. Mourning Doves: 1837 and 1842 Ceded Territories only.

Season Dates: September 1-November 29, 2022.

Daily Bag Limit: 15 mourning doves.

F. Sandhill Cranes:

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 10 sandhill cranes and no seasonal bag limit in the 1837 and 1842 Treaty areas; 3 sandhill cranes and no seasonal bag limit in the 1836 Treaty area.

G. Swans: 1837 and 1842 Ceded Territories only.

Season Dates: September 1-December 31, 2022.

Daily Bag Limit: 5 swans. All harvested swans must be registered by presenting the fully feathered carcass to a Tribal registration station or GLIFWC warden. If the total number of trumpeter swans harvested reaches 20, the swan season will be closed by emergency Tribal rule.

A. All Tribal members will be required to obtain a valid Tribal waterfowl hunting permit.

B. Except as otherwise noted, Tribal members will be required to comply with Tribal codes that will be no less restrictive than the model ceded territory conservation codes approved by Federal courts in the Lac Courte Oreilles v. State of Wisconsin (Voigt) and Mille Lacs Band v. State of Minnesota cases. Chapter 10 in each of these model codes regulates ceded territory migratory bird hunting. Both versions of chapter 10 parallel Federal requirements as to hunting methods, transportation, sale, exportation, and other conditions generally applicable to migratory bird hunting. They also automatically include by reference the Federal migratory bird regulations adopted in response to this proposal.

C. Particular regulations of note include:

1. Nontoxic shot will be required for all waterfowl hunting by Tribal members.

2. Tribal members in each zone will comply with Tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.

3. There are no possession limits, with the exception of 25 rails (in the aggregate) and 20 trumpeter swans total. For purposes of enforcing bag limits, all migratory birds in the possession and custody of Tribal members on ceded lands will be considered to have been taken on those lands unless tagged by a Tribal or State conservation warden as taken on reservation lands. All migratory birds that fall on reservation lands will not count as part of any off-reservation bag or possession limit.

4. There are no shell limit restrictions.

5. Hunting hours are from 30 minutes before sunrise to 30 minutes after sunset, except that, within the 1837 and 1842 Ceded Territories, hunters may use non-mechanical nets or snares that are operated by hand to take those birds subject to an open hunting season at any time (see further proposed regulations below). Capturing, without the aid of other devices ( i.e., by hand), and immediately killing birds subject to an open season may also be done regardless of the time of day.

6. Within the 1837 and 1842 Ceded Territories, Tribal members will be allowed to use electronic calls. Individuals using these devices will be required to complete a hunt survey for each hunt where electronic calls are used. Required information will include the date, time, and location of the hunt; number of hunters; the number of each species harvested per hunting event; if other hunters were in the area, any interactions with other hunters; and other information deemed appropriate. Survey results will be summarized and documented in a Commission report, which will be submitted to the Service. Barring unforeseen results, this application will be replicated for 2 years (through the 2023-24 season), after which a full evaluation would be completed.

7. Within the 1837 and 1842 Ceded Territories, Tribal members will be allowed to use non-mechanical, hand-operated nets ( i.e., throw/cast nets or handheld nets typically used to land fish) and hand-operated snares and may chase and capture migratory birds without the aid of hunting devices ( i.e., by hand). At this time, non-attended nets or snares will not be authorized under this regulation. Tribal members using nets or snares to take migratory birds, or taking birds by hand, will be required to complete a hunt survey for each hunt where these methods are used; and they will be required to submit the data to the Commission when requested at the end of the season. Required information will include the date, time, and location of the hunt; number of hunters; the number of each species harvested per hunting event; and other information deemed appropriate. Results will be summarized and documented in a Commission report, which will be submitted to the Service. Barring unforeseen results, this application will be replicated for 2 years (through the 2023-24 season), after which a full evaluation would be completed.

The Jicarilla Apache Tribe has had special migratory bird hunting regulations for Tribal members and nonmembers since the 1986-87 hunting season. The Tribe owns all lands on the reservation and has recognized full wildlife management authority.

The Tribe requested a 2022-23 waterfowl season during October 8 through November 30, 2022. Daily bag and possession limits for waterfowl would be the same as the Federal frameworks for the Pacific Flyway portion of New Mexico, except that the Tribe requested daily bag and possession limits for Canada/cackling geese of two and four, respectively. Other regulations specific to the Pacific Flyway portion of New Mexico would be in effect.

During the Jicarilla Game and Fish Department's 2019 season, estimated duck harvest was 205. The species composition included mainly mallards, and gadwall. The estimated harvest of geese was nine birds.

The proposed regulations are essentially the same as were established last year. The Tribe anticipates the maximum 2022-23 waterfowl harvest would be around 200 ducks and 20 geese.

The Kalispel Reservation was established by Executive Order in 1914, and currently comprises approximately 4,600 acres. The Tribe owns all Reservation land and has full management authority. The Kalispel Tribe has a fully developed wildlife program with hunting and fishing codes. The Tribe enjoys excellent wildlife management relations with the State. The Tribe and the State have an operational memorandum of understanding with emphasis on fisheries but also for wildlife.

The nontribal member seasons described below would pertain to a 176-acre waterfowl management unit and 800 acres of reservation land. Hunters must be accompanied by a guide from the Tribe. The Tribe is utilizing this opportunity to rehabilitate an area that needs protection because of past land use practices, as well as to provide additional waterfowl hunting in the area. Beginning in 1996, the requested regulations also included a proposal for Kalispel-member-only migratory bird hunting on Kalispel-ceded lands within Washington, Montana, and Idaho.

The Kalispel Tribe requested duck and goose seasons for Tribal members only on reservation lands with dates consistent with Federal framework dates (September 24, 2022-January 31, 2023).

For nontribal members on Tribally managed lands, the Tribe requested duck and goose seasons with the earliest possible opening date and to remain open for the maximum number of days allowed by Federal frameworks (107 days from September 24, 2022-January 8, 2023). The Tribe requested a season for ducks during September 24-25, 2022, and during October 1, 2022, through January 8, 2023. Hunters should obtain further information on specific hunt days from the Kalispel Tribe.

For nontribal members, the daily bag and possession limits would be the same as those for the duck and goose season in the State of Washington.

The Tribe reports past nontribal member harvest of 1.5 ducks per day. Under the proposal, the Tribe expects harvest to be similar to last year, that is, fewer than 100 geese and 160 ducks.

All other State and Federal regulations contained in 50 CFR part 20, such as use of nontoxic shot and possession of a signed Migratory Bird Hunting and Conservation Stamp (Duck Stamp), would apply.

For Tribal members on Kalispel-ceded lands, the Kalispel Tribe requested a duck season during October 1, 2022, through January 31, 2023, and a goose season during September 3, 2022, through January 31, 2023. Daily bag and possession limits would be consistent with those for the State of Washington.

The Tribe reports that there was no harvest by Tribal members in 2021-22. Under the proposal, the Tribe expects harvest to be fewer than 200 birds total for the season. Tribal members would be required to possess a signed Federal Duck Stamp and a Tribal ceded lands permit.

The Klamath Tribe currently has no reservation, per se. However, the Klamath Tribe has reserved hunting, fishing, and gathering rights within its former reservation boundary. This area of former reservation, granted to the Klamaths by the Treaty of 1864, is over 1 million acres. Tribal natural resource management authority is derived from the Treaty of 1864 and carried out cooperatively under the judicially enforced Consent Decree of 1981. The parties to this Consent Decree are the Federal Government, the State of Oregon, and the Klamath Tribe. The Klamath Indian Game Commission sets the seasons. The Tribal biological staff and Tribal regulatory enforcement officers monitor Tribal harvest by frequent bag checks and hunter interviews.

The Tribe requested duck and goose seasons during October 5, 2022, through January 31, 2023. Daily bag limits would be nine ducks, nine geese, and nine coots, with possession limits two times the daily bag limit. Shooting hours would be one-half hour before sunrise to one-half hour after sunset. Steel shot is required.

Based on the number of birds produced in the Klamath Basin, this year's harvest would be similar to last year's. Past information on Tribal harvest suggests that more than 70 percent of the annual goose harvest is local birds produced in the Klamath Basin.

The Leech Lake Band of Ojibwe is a federally recognized Tribe located in Cass Lake, Minnesota. The reservation employs conservation officers to enforce conservation regulations. The Service and the Tribe have cooperatively established migratory bird hunting regulations since 2000.

The Tribe requested a duck season during September 3 through December 31, 2022, and a goose season during September 3 through December 31, 2022. Daily bag limits for ducks would be 10 ducks, including no more than 5 pintail, 5 canvasbacks, and 5 black ducks. Daily bag limits for geese would be 10 geese. Possession limits would be two times the daily bag limit.

Shooting hours are one-half hour before sunrise to one-half hour after sunset. Only steel or other approved nontoxic shot may be used to harvest waterfowl. Waterfowl may not be pursued or taken while under the power of a motorized watercraft. Use of live decoys, bait, and commercial use of migratory birds is prohibited. No hunting will be allowed on or near a wild rice bed that is being actively harvested. No travel by boat is allowed within a wild rice bed. Nonnative species must be removed from watercraft and hunting equipment before leaving an access point. Several waterfowl refuges are closed to the taking of waterfowl.

The annual harvest by Tribal members on the Leech Lake Reservation is estimated at 250 to 500 birds.

The Little River Band of Ottawa Indians (LRBOI) is a self-governing, federally recognized Tribe located in Manistee, Michigan, and a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986-87 hunting season. Ceded lands are located in Lake, Mason, Manistee, and Wexford Counties. The Band proposes regulations to govern the hunting of migratory birds by Tribal members within the 1836 Ceded Territory as well as on the Band's Reservation.

LRBOI requested a duck and merganser season from September 1, 2022, through January 31, 2023. The daily bag limit would be 12 ducks and include no more than 2 pintail, 4 canvasbacks, 4 black ducks, 6 wood ducks, 4 redheads, 8 mallards (only 4 of which may be female), 10 common and red-breasted mergansers, and 2 hooded mergansers. Possession limits would be three times the daily bag limit.

For coots and gallinules, the Tribe requested a season during September 14, 2022, through January 31, 2023. Daily bag limits would be 30 coots and gallinules and 60 in possession.

For geese, the Tribe requested a season during September 1, 2022, through February 15, 2023. Daily bag limits would be 10 geese.

For woodcock, snipe, and rails (sora and Virginia), the Tribe requested a season during September 1, 2022, through December 31, 2022. The daily bag limit would be 5 woodcock and 25 snipe or rails in the aggregate. Possession limits for all species would be three times the daily bag limit.

For mourning doves, the Tribe requested a season during September 1, 2022, through March 1, 2023, with a daily bag limit of 25 mourning doves. The possession limit would be three times the daily bag limit.

For sandhill cranes, the Tribe requested a season during September 1, 2022, through December 31, 2022, with a daily bag limit of two sandhill cranes. The possession limit would be three times the daily bag limit.

The Tribe monitors harvest through mail surveys.

General conditions are as follows:

A. All Tribal members will be required to obtain a valid Tribal resource card and 2022-23 hunting license.

B. Except as modified by the Service rules adopted in response to this proposal, these amended regulations parallel all Federal regulations contained in 50 CFR part 20. Shooting hours will be from one-half hour before sunrise to sunset.

C. Particular regulations of note include:

1. Nontoxic shot will be required for all waterfowl hunting by Tribal members.

2. Tribal members in each zone will comply with Tribal regulations providing for closed and restricted waterfowl hunting areas. These regulations generally incorporate the same restrictions contained in parallel State regulations.

D. Tribal members hunting in Michigan will comply with Tribal codes that contain provisions parallel to Michigan law regarding duck blinds and decoys.

The Little Traverse Bay Bands of Odawa Indians (LTBB) is a self-governing, federally recognized Tribe located in Petoskey, Michigan, and a signatory Tribe of the Treaty of 1836. We have approved special regulations for Tribal members of the 1836 treaty's signatory Tribes on ceded lands in Michigan since the 1986-87 hunting season.

For the 2022-23 season, the LTBB requested regulations similar to those of other Tribes in the 1836 treaty area. The LTBB requested regulations to govern the hunting of migratory birds by Tribal members on the LTBB reservation and within the 1836 Treaty Ceded Territory. The duck and merganser season would be during September 1, 2022, through January 31, 2023. The daily bag limit would be 20 ducks and 10 mergansers and would include no more than 5 female mallards, 5 pintail, 5 canvasbacks, 5 scaup, 5 hooded mergansers, 5 black ducks, 5 wood ducks, and 5 redheads. Possession limits would be two times the daily bag limit.

For Canada/cackling geese, the LTBB requested a season during September 1, 2022, through February 8, 2023. The daily bag limit would be 20 Canada/cackling geese. We further note that, based on available data (of major goose migration routes), it is unlikely that any Canada/cackling geese from the Southern James Bay Population would be harvested by the LTBB. Possession limits are twice the daily bag limit.

For woodcock, the LTBB requested a season during September 1 through December 1, 2022. The daily bag limit will not exceed 10 woodcock. For snipe, the LTBB requested a season during September 1 through December 31, 2022. The daily bag limit will not exceed 15 snipe. For mourning doves, the LTBB requested a season during September 1 through November 14, 2022. The daily bag limit will not exceed 15 mourning doves. For sora and Virginia rails, the LTBB requested a season during September 1 through December 31, 2022. The daily bag limit will not exceed 20 sora and 20 Virginia rails. For coots and gallinules, the LTBB requested a season during September 1 through December 31, 2022. The daily bag limit would not exceed 20 coots and 20 gallinules. The possession limits would be two times the daily bag limits.

The LTBB also proposes a sandhill crane season during September 1 through December 1, 2022. The daily bag limit would be two sandhill cranes. The possession limit would be two times the daily bag limit.

All other Federal regulations contained in 50 CFR part 20 would apply, except the Tribe proposes the use of electronic calls for all species proposed. The Tribe has agreed to extend the experimental MOA with the Service regarding the use of electronic calling through the 2022-23 season.

The LTBB proposes to monitor harvest through game bag checks, patrols, and mail surveys. In particular, the LTBB proposes monitoring the harvest of Southern James Bay Canada/cackling geese and sandhill cranes to assess any impacts of Tribal hunting on the population.

The Lower Brule Sioux Tribe first established Tribal migratory bird hunting regulations for the Lower Brule Reservation in 1994. The Lower Brule Reservation is about 214,000 acres in size and is located on and adjacent to the Missouri River, south of Pierre. Land ownership on the reservation is mixed, and until recently, the Lower Brule Tribe had full management authority over fish and wildlife via an MOA with the State of South Dakota. The MOA provided the Tribe jurisdiction over fish and wildlife on reservation lands, including deeded and U.S. Army Corps of Engineers-taken lands. For the 2022-23 season, the two parties have come to an agreement that provides the public a clear understanding of the Lower Brule Sioux Wildlife Department license requirements and hunting season regulations. The Lower Brule Reservation waterfowl season is open to Tribal and nontribal members.

For the 2022-23 migratory bird hunting season, the Lower Brule Sioux Tribe requested a nontribal member duck, merganser, and coot season length of 97 days, or the maximum number of days allowed by Federal frameworks in the High Plains Management Unit for this season. The Tribe proposes a duck season during October 1, 2022, through January 5, 2023. The daily bag limit would be six ducks (including merganser) or the maximum number that Federal frameworks allow, including no more than two female mallards and five mallards in total, two pintail, two redheads, two canvasbacks, three wood duck, three scaup, and one mottled duck. Two bonus blue-winged teal are allowed during October 1-16, 2022. The daily bag limit for coots would be 15. Possession limits would be three times the daily bag limits.

The Tribe requested a nontribal member Canada/cackling goose season during October 29, 2022, through February 12, 2023 (107-day season length), with a daily bag limit of six Canada/cackling geese. The Tribe requested a nontribal member white-fronted goose season during October 22, 2022, through January 17, 2023, with a daily bag limit of two white-fronted geese and possession limit of three times the daily bag limit. The Tribe requested a nontribal-member light goose season during October 22, 2022, through February 5, 2023. The daily bag limit would be 20 light geese, or the maximum number that Federal frameworks allow, with no possession limits.

The Tribe requested a dove season for nontribal members during September 1, 2022, through November 29, 2022. The daily bag limit would be 15 doves and possession limit three times the daily bag limit.

For Tribal members, the Lower Brule Sioux Tribe requested a duck, merganser, and coot season during September 1, 2022, through March 10, 2023. The daily bag limit would be six ducks, including no more than two female mallards and five mallards in total, one pintail, two redheads, two canvasbacks, three wood ducks, three scaup, two bonus teal during the first 16 days of the season, and two mottled ducks or the maximum number that Federal frameworks allow. The daily bag limit for mergansers would be five, only two of which could be hooded mergansers. The daily bag limit for coots is 15. Possession limits would be three times the daily bag limits.

The Tribe requested a Canada/cackling goose season for Tribal members during September 1, 2022, through March 10, 2023, with a daily bag limit of six Canada/cackling geese. The possession limit would be three times the daily bag limit. The Tribe requested a white-fronted goose season for Tribal members during September 1, 2022, through March 10, 2023, with a daily bag limit of two white-fronted geese and a possession limit of three times the daily bag limit, or the maximum limits that Federal regulations allow. The Tribe requested a light goose season for Tribal members during September 1, 2022, through March 10, 2023. The daily bag limit would be 20 light geese, or the maximum number that Federal frameworks allow, with no possession limits.

The Tribe requested a dove season for Tribal members during September 1, 2022, through January 31, 2023. The daily bag limit would be 15 doves, and the possession limit would be three times the daily bag limit.

In the 2020 season, nontribal members harvested 125 geese and 821 ducks. Estimated duck harvest was 45 percent higher than the average harvest from 1993 through 2019. Goose harvest was 70 percent lower than the 1993-2019 average. Tribal members harvested approximately 119 ducks and 64 geese in 2020.

The Tribe anticipates a duck and goose harvest similar to those of the previous years. All basic Federal regulations contained in 50 CFR part 20, including the use of nontoxic shot, Duck Stamps, etc., would apply. In addition, the Lower Brule Sioux Tribe has an official Conservation Code that was established by Tribal Council Resolution in June 1982 and updated in 1996.

Since 1996, the Service and the Point No Point Treaty Tribes, of which Lower Elwha was one, have cooperated to establish special regulations for migratory bird hunting. The Tribes are now acting independently, and it is our understanding that the Lower Elwha Klallam Tribe would like to establish migratory bird hunting regulations for Tribal members for the 2022-23 season. The Tribe has a reservation on the Olympic Peninsula in Washington State and is a successor to the signatories of the Treaty of Point No Point of 1855.

For the 2022-23 season, the Tribe requested special migratory bird hunting regulations for ducks (including merganser), geese, coots, band-tailed pigeons, snipe, and mourning doves. The Lower Elwha Klallam Tribe requested a duck and coot season during September 4, 2022, through January 2, 2023. The daily bag limit would be seven ducks, including no more than two female mallards, one pintail, one canvasback, and two redheads. The daily bag and possession limit of harlequin ducks is one per season. The coot daily bag limit would be 25. The possession limit would be two times the daily bag limit, except as noted above.

For geese, the Tribe requested a season during September 4, 2022, through January 2, 2023. The daily bag limit would be four geese, including no more than three light geese. The season on Aleutian Canada/cackling geese would be closed.

For brant, the Tribe requested to maintain a closed season.

For mourning doves and band-tailed pigeon, the Tribe requested seasons during September 1, 2022, through February 27, 2023, with a daily bag limit of 10 mourning doves, and 2 band-tailed pigeons. The possession limits would be two times the daily bag limits.

For snipe, the Tribe requested a season during September 4, 2022, through January 2, 2023, with a daily bag limit of eight snipe. The possession limit would be two times the daily bag limit.

All Tribal hunters authorized to hunt migratory birds are required to obtain a Tribal hunting permit from the Lower Elwha Klallam Tribe pursuant to Tribal law. Hunting hours would be from one-half hour before sunrise to sunset. Only steel, tungsten-iron, tungsten-polymer, tungsten-matrix, and tin shot are allowed for hunting waterfowl. It is unlawful to use or possess lead shot while hunting waterfowl.

The Tribe reported no harvest in 2020-21 or 2021-22 and anticipates harvest to be fewer than 10 birds. Tribal reservation police and Tribal fisheries enforcement officers have the authority to enforce these migratory bird hunting regulations for the Lower Elwha Klallam Tribe.

The Makah Indian Tribe and the Service have been cooperating to establish special regulations for migratory game birds on the Makah Reservation and traditional hunting land off the Makah Reservation since the 2001-02 hunting season. Lands off the Makah Reservation are those contained within the boundaries of the State of Washington Game Management Units 601-603.

The Makah Indian Tribe requested a duck and coot season from September 24, 2022, through January 31, 2023. The daily bag limit would be seven ducks, including no more than seven mallards (only two female mallards), two canvasbacks, one pintail, three scaup, and two redheads. The daily bag limit for coots would be 25. The Tribe has a year-round closure on wood ducks and harlequin ducks. Shooting hours for all species of waterfowl are one-half hour before sunrise to sunset.

For geese, the Tribe proposes a season during September 24, 2022, through January 31, 2023. The daily bag limit would be 4 Canada/cackling geese, 10 white-fronted geese, 10 light geese, and 2 brant. The Tribe notes that there is a year-round closure on dusky Canada geese.

For band-tailed pigeons, the Tribe requested a season during September 15 through September 23, 2022. The daily bag limit would be two band-tailed pigeons.

The Tribe anticipates that harvest under these regulations would be relatively low since there are no known dedicated waterfowl hunters and any harvest of waterfowl or band-tailed pigeons is usually incidental to hunting for other species, such as deer, elk, and bear. The Tribe expects fewer than 50 ducks and 10 geese to be harvested during the 2022-23 migratory bird hunting season.

All other Federal regulations contained in 50 CFR part 20 would apply. The following restrictions are also proposed by the Tribe:

1. As per Makah Ordinance 44, only shotguns may be used to hunt any species of waterfowl. Additionally, shotguns must not be discharged within 300 feet of an occupied building, occupied area, or active logging operation.

2. Hunters must be eligible enrolled Makah Tribal members and must carry their Indian Treaty Fishing and Hunting Identification Card while hunting. See Makah General Hunting Regulations.

3. The Makah Reservation Area is open except in designated wilderness areas, or within 1 mile of Cape Flattery and Shi-Shi Trails, or in any area that is closed to hunting by another ordinance or regulation.

4. The use of live decoys and/or baiting to pursue any species of waterfowl is prohibited.

5. Only approved nontoxic shot is allowed for waterfowl; the use of lead shot is prohibited.

6. The use of dogs is permitted to hunt all species under this regulation.

7. Hunters must report any neck or leg bands placed by the Federal Government to Natural Resources Enforcement or by calling 1-800-327-BAND.

The Muckleshoot Tribe is a federally recognized Tribe with reserved hunting rights under the Treaty of Medicine Creek 1854 and Treaty of Point Elliott 1855. Hunting occurs within the treaty areas as well as on lands traditionally hunted by the Muckleshoot Indian Tribe.

The Muckleshoot Indian Tribe requested a duck, merganser, and coot season during September 1, 2022, through March 10, 2023. The daily bag limit would be seven, including no more than two female mallards, two canvasbacks, two pintail, three scaup, two redheads, two scoters, two long-tailed ducks, and two goldeneyes. The daily bag limit for coots would be 25. The limit on harlequin ducks would be one per season.

For geese, the Tribe requested a season during September 1, 2022, through March 10, 2023. The daily bag limit would be 4 Canada/cackling geese, 6 light geese, 10 white-fronted geese, and 2 brant. The season on dusky Canada geese would be closed.

For band-tailed pigeons, mourning doves, and snipe, the Tribe requested seasons during September 1, 2022, through March 10, 2023. The daily bag limits would be 2 band-tailed pigeons, 15 mourning doves, and 8 snipe. The possession limits would be three times the daily bag limits on all species unless otherwise noted.

The Tribe anticipates that harvest under this regulation will be relatively low since no known harvest has occurred over the past 20 years, and there are no known dedicated waterfowl or other migratory bird hunters. Harvest will be for personal cultural and subsistence purposes. We anticipate fewer than 100 ducks and 100 geese may be harvested.

All other Federal regulations contained in 50 CFR part 20 would apply. The following restrictions are also proposed by the Tribe:

1. Hunting can occur on reservation and off reservation on lands where the Tribe has treaty-reserved hunting rights or has documented traditional use.

2. Shooting hours for all species of waterfowl are one-half hour before sunrise to one-half after sunset.

3. Hunters must be eligible enrolled Muckleshoot Tribal members and must carry their Tribal identification while hunting.

4. Tribal members hunting migratory birds must also have a combined Migratory Bird Hunting Permit and Harvest Report Card.

5. The use of live decoys and/or baiting to pursue any species of waterfowl is prohibited.

6. Hunting for migratory birds is with shotgun only. Only steel, tungsten-iron, tungsten-polymer, tungsten-matrix, and tin shot are allowed for hunting waterfowl. It is unlawful to use or possess lead shot while hunting waterfowl.

Since 1985, we have established uniform migratory bird hunting regulations for Tribal members and nonmembers on the Navajo Indian Reservation (in parts of Arizona, New Mexico, and Utah). The Navajo Nation owns almost all lands on the reservation and has full wildlife management authority.

For Tribal and nontribal members for the 2022-23 season, the Tribe requested the earliest opening dates with a split season to end on the last day for ducks, mergansers, Canada/cackling geese, and coot seasons, and the same daily bag and possession limits allowed by Federal frameworks in Arizona.

For mourning dove, the Navajo Nation requested seasons during September 1-30, 2022, with daily bag limits of 10 mourning doves. For band-tailed pigeon, the Navajo Nation requested seasons during September 1-14, 2022, with daily bag limits of two band-tailed pigeons. Possession limits would be two times the daily bag limits.

The Nation requires Tribal members and nonmembers to comply with all basic Federal migratory bird hunting regulations in 50 CFR part 20 pertaining to shooting hours and manner of taking. In addition, each waterfowl hunter aged 16 or older must carry on his/her person a valid Duck Stamp, which must be signed in ink across the face. Special regulations established by the Navajo Nation also apply on the reservation.

The Tribe anticipates a total harvest of fewer than 500 mourning doves; fewer than 10 band-tailed pigeons; fewer than 1,000 ducks, merganser, and coot; and fewer than 1,000 Canada/cackling geese for the 2022-23 season. The Tribe measures harvest by mail survey forms. Through the established Navajo Nation Code, titles 17 and 18, and 23 U.S.C. 1165, the Tribe will take action to close the season, reduce bag limits, or take other appropriate actions if the harvest is detrimental to the migratory bird resource.

Since 1991-92, the Oneida Tribe of Indians of Wisconsin and the Service have cooperated to establish uniform regulations for migratory bird hunting by Tribal and nontribal hunters within the original Oneida Reservation boundaries. Since 1985, the Oneida Tribe's Conservation Department has enforced the Tribe's hunting regulations within those original reservation limits. The Oneida Tribe also has a good working relationship with the State of Wisconsin, and the majority of the seasons and limits are the same for the Tribe and Wisconsin.

For the 2022-23 season, the Tribe requested special migratory bird hunting regulations. For ducks, the Tribe requested a season during September 10 through December 4, 2022. The daily bag limit would be six ducks, which could include no more than three female mallards, two redheads, two pintails, and two hooded mergansers. The possession limit would be 24 ducks in the aggregate.

For geese, the Tribe requested a season during September 1 and December 31, 2022, with a daily bag limit of 5 geese species (Canada/cackling geese, snow/blue geese, Ross's geese, and brant) and 20 in the aggregate. If 500 geese are harvested before the season concludes, the Tribe will recommend closing the season early.

For woodcock, the Tribe requested a season during September 1 through November 6, 2022, with a daily bag and possession limit of two and four, respectively.

For mourning dove, the Tribe requested a season during September 1 through November 6, 2022, with a daily bag and possession limit of 10 and 20, respectively.

Shooting hours would be one-half hour before sunrise to 15 minutes after sunset. Nontribal hunters hunting on the Reservation or on lands under the jurisdiction of the Tribe must comply with all State of Wisconsin regulations, including shooting hours of one-half hour before sunrise to sunset, season dates, and daily bag limits. Tribal members and nontribal hunters hunting on the Reservation or on lands under the jurisdiction of the Tribe must observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, with the following exceptions: Oneida members would be exempt from the purchase of the Duck Stamp; and shotgun capacity is not limited to three shells.

Point No Point Treaty Council Tribes (Council) consists of the Port Gamble S'Klallam Tribe and Jamestown S'Klallam Tribe. The two Tribes have reservations and ceded areas in northwestern Washington State and are the successors to the signatories of the Treaty of Point No Point of 1855. The requested special migratory bird hunting regulations for the 2022-23 season would apply to Tribal members both on and off reservations within the Point No Point Treaty Areas; however, the Port Gamble S'Klallam and Jamestown S'Klallam Tribal season dates differ only where indicated below.

The Council requested a duck, merganser, and coot season during September 1, 2022, through March 10, 2023. The daily bag limit would be seven ducks and mergansers. The daily bag and possession limits on harlequin ducks would be one per season. The daily bag limit for coots would be seven. Possession limits would be three times the daily bag limits.

For geese, the Council requested a season during September 1, 2022, through March 10, 2023. The daily bag limits for Canada/cackling geese, light geese, and white-fronted geese would be 5, 6, and 10, respectively. The Council notes that there is a year-round closure on dusky Canada geese. For brant, the Council proposes a season during January 1 through January 31, 2023, for the Port Gamble S'Klallam Tribe, and during January 15 through January 31, 2023, for the Jamestown S'Klallam Tribe. The daily bag limit for brant would be two. Possession limits would be three times the daily bag limits.

For band-tailed pigeons, the Council requested a season during September 15 through November 30, 2022. The daily bag limit would be two band-tailed pigeons. For snipe, the council requested a season during September 1, 2022, through March 10, 2023. The daily bag limit would be eight snipe. For mourning dove, the Council requested a season during September 1, 2022, through March 10, 2023. The daily bag limit would be 10 mourning doves. Possession limits would be three times the daily bag limits.

The Council anticipates a total harvest of fewer than 100 birds for the 2022-23 season. The Tribal fish and wildlife enforcement officers have the authority to enforce these Tribal regulations.

The Saginaw Tribe of Chippewa Indians is a federally recognized, self-governing Indian Tribe, located on the Isabella Reservation lands bound by Saginaw Bay in Isabella and Arenac Counties, Michigan.

For ducks, merganser, and snipe, the Tribe requested a season during September 1, 2022, through January 31, 2023. The daily bag limit would be 20 ducks, which could include no more than five each of the following: female mallards, wood ducks, black ducks, pintail, redhead, scaup, and canvasbacks. The possession limit would be 40 ducks. The daily bag limit for mergansers would be 10, no more than 5 of which may be hooded mergansers, and for snipe would be 16.

For geese, coots, gallinules, soras, and Virginia rails, the Tribe requested a season during September 1, 2022, through January 31, 2023. The daily bag limit for geese would be 20. The daily bag limit for coots, gallinules, soras, and Virginia rails would be 20 in the aggregate.

For woodcock and mourning doves, the Tribe requested a season during September 1, 2022, through January 31, 2023, with daily bag limits of 10 and 25, respectively.

For sandhill cranes, the Tribe requested a season during September 1, 2022, through January 31, 2023, with a daily bag limit of one.

All Saginaw Tribe members exercising hunting treaty rights are required to comply with Tribal Ordinance 11. Hunting hours would be from one-half hour before sunrise to one-half hour after sunset. All other regulations in 50 CFR part 20 apply, including the use of only nontoxic shot for hunting waterfowl.

The Sauk-Suiattle Indian Tribe (SSIT) requested a 2022-23 hunting season on all open and unclaimed lands under the Treaty of Point Elliott of January 22, 1855. The Tribe's reservation is located in Darrington, Washington, just west of the North Cascade Mountain range in Skagit County on the Sauk and Suiattle Rivers. The Tribe owns and manages all the land on the reservation and some lands surrounding or near the reservation in Skagit and Snohomish Counties. All of the lands that are Tribal or reservation lands are closed for nontribal hunting, unless opened by an SSIT special regulation.

The Tribe requested a season for ducks, geese, brant, coots, mourning doves, and band-tailed pigeons during September 1, 2022, through March 10, 2023. The daily bag limit would be 20 ducks, 10 geese, 5 brant, and 25 coots. The daily bag limit for mourning doves and band-tailed pigeons would be 20 in the aggregate. The possession limit is two times the daily bag limits.

Hunting hours would be from one-half hour before sunrise to one-half hour after sunset. All other regulations in 50 CFR part 20 apply, including the use of only nontoxic shot for hunting waterfowl.

The Sault Ste. Marie Tribe of Chippewa Indians is a federally recognized, self-governing Indian Tribe, distributed throughout the eastern Upper Peninsula and northern Lower Peninsula of Michigan. The Tribe has retained the right to hunt, fish, trap, and gather on the lands ceded in the Treaty of Washington (1836).

The Tribe requested special migratory bird hunting regulations for the 2022-23 season. For ducks, merganser, and snipe, the Tribe requested a season during September 1 through December 31, 2022. The daily bag limit would be 20 ducks, which could include no more than 10 mallards (5 female mallards), 5 wood ducks, 5 black ducks, and 5 canvasbacks. The daily bag limit for mergansers would be 10 and 20 in the aggregate, and for snipe 16 and 32 in the aggregate.

For geese, coots, gallinules, soras, and Virginia rails, the Tribe requested a season during September 1 through December 31, 2022. In addition, any portion of the ceded territory that is open to State-licensed hunters for goose hunting after December 31 will also be opened concurrently for Tribal members. The daily bag limit for geese would be 20. The daily bag limit for coots, gallinules, soras, and Virginia rails would be 20 in the aggregate.

For woodcock, the Tribe requested a season during September 2 through December 1, 2022, with daily bag and possession limits of 10 and 20, respectively.

For mourning doves, the Tribe requested a season during September 1 through November 14, 2022, with daily bag and possession limits of 10 and 20, respectively.

In 2020, the total estimated number of waterfowl hunters was 4,183, who harvested an estimated 3,504 ducks and 1,808 geese. All Sault Ste. Marie Tribe members exercising hunting treaty rights within the 1836 Ceded Territory are required to submit annual harvest reports including date of harvest, number and species harvested, and location of harvest. Shooting hours would be from one-half hour before sunrise to one-half hour after sunset. All other regulations in 50 CFR part 20 apply, including the use of only nontoxic shot for hunting waterfowl.

Since 1996, the Service and the Point No Point Treaty Tribes, of which the Skokomish Tribe was one, have cooperated to establish special regulations for migratory bird hunting. The Tribes have been acting independently since 2005. The Tribe has a reservation on the Olympic Peninsula in Washington State and is a successor to the signatories of the Treaty of Point No Point of 1855.

For the 2022-23 season, the Skokomish Tribe requested a duck and coot season during September 16, 2022, through February 28, 2023. The daily bag limit would be seven ducks, including no more than two female mallards, one pintail, one canvasback, and two redheads. The daily bag and possession limits for harlequin ducks would be one per season. The daily bag limit for coots would be 25. The possession limit would be two times the daily bag limits, except as noted above.

For geese, the Tribe requested a season during September 16, 2022, through February 28, 2023. The daily bag limit would be four, including no more than three light geese. The season on Aleutian Canada geese would be closed. For brant, the Tribe usually requests a season during November 1, 2022, through February 15, 2023, with a daily bag limit of two. The possession limits would be two times the daily bag limits.

For mourning doves, band-tailed pigeons, and snipe, the Tribe requested a season during September 16, 2022, through February 28, 2023, with a daily bag limit of 10, 2, and 8, respectively. The possession limits would be two times the daily bag limits.

All Tribal members authorized to hunt migratory birds are required to obtain a Tribal hunting permit from the Skokomish Tribe pursuant to Tribal law. Shooting hours would be from one-half hour before sunrise to sunset. Only steel, tungsten-iron, tungsten-polymer, tungsten-matrix, and tin shot are allowed for hunting waterfowl. It is unlawful to use or possess lead shot while hunting waterfowl.

The Tribe anticipates harvest to be fewer than 150 birds. The Skokomish Public Safety Office enforcement officers have the authority to enforce these migratory bird hunting regulations.

The Spokane Indian Reservation is located in northeastern Washington State. The reservation comprises approximately 157,000 acres. The boundaries of the Reservation are the Columbia River to the west, the Spokane River to the south (now Lake Roosevelt), Tshimakain Creek to the east, and the 48th Parallel as the north boundary. Tribal membership comprises approximately 2,300 enrolled Spokane Tribal Members.

The Spokane Tribe of Indians requested special migratory bird hunting regulations that would allow Tribal Members, spouses of Spokane Tribal Members, and first-generation descendants of a Spokane Tribal Member with a Tribal permit and Federal Duck Stamp an opportunity to utilize the reservation and ceded lands for waterfowl hunting. These regulations would also benefit Tribal membership through access to this resource throughout Spokane Tribal ceded lands in eastern Washington. By Spokane Tribal Referendum, spouses of Spokane Tribal Members and children of Spokane Tribal Members not enrolled are allowed to harvest game animals within the Spokane Indian Reservation with the issuance of hunting permits.

The Tribe requested a duck season during September 2, 2022, through January 31, 2023. The daily bag and possession limits for ducks would be consistent with Federal frameworks for Washington.

The Tribe requested a goose season during September 2, 2022, through January 31, 2023. The daily bag limit and possession limit for geese would be consistent with Federal frameworks for Washington.

Based on the quantity of requests the Spokane Tribe of Indians has received, the Tribe anticipates harvest levels for the 2022-23 season for both ducks and geese to be fewer than 100 total birds, with goose harvest at fewer than 50. Hunter success will be monitored through mandatory harvest reports returned within 30 days of the season closure.

The Stillaguamish Tribe of Indians and the Service have cooperated to establish special regulations for migratory game birds since 2001. For the 2022-23 season, the Tribe requested regulations to hunt all open and unclaimed lands under the Treaty of Point Elliott of January 22, 1855, including their main hunting grounds around Camano Island, Skagit Flats, and Port Susan to the border of the Tulalip Tribes Reservation. Ceded lands are located in Whatcom, Skagit, Snohomish, and Kings Counties and a portion of Pierce County, Washington. The Stillaguamish Tribe of Indians is a federally recognized Tribe and reserves the Treaty Right to hunt ( U.S. v. Washington ).

The Tribe requested a duck (including merganser) and goose season during October 1, 2022, through March 10, 2023. The daily bag limit on ducks (including sea ducks and mergansers) would be 10 including no more than 7 mallards (3 of which may be female), 3 pintail, 3 redheads, 3 scaup, 4 hooded mergansers, and 3 canvasbacks. Possession limits would be two times the daily bag limits. For geese, the daily bag limits would be 6 Canada/cackling geese, 12 white-fronted geese, and 8 light geese. The possession limits would be three times the daily bag limits. The season on brant would be closed.

The Tribe requested a coot, snipe, and swan season during October 1, 2022, through January 31, 2023. The daily bag limit for coots would be 25 and for snipe would be 10. The possession limits would be two times the daily bag limits. The daily bag and possession limits for swans would be two per season. Swan hunters must have a swan hunting permit issued by the Tribe.

Harvest is regulated by a punch card system. Tribal members hunting on lands under this proposal will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, which will be enforced by the Stillaguamish Tribal law enforcement. Tribal members are required to use steel shot or a nontoxic shot as required by Federal regulations.

The Tribe anticipates a total harvest of 200 ducks, 100 geese, 50 mergansers, 100 coots, and 100 snipe. Anticipated harvest includes subsistence and ceremonial needs. Certain species may be closed to hunting for conservation purposes, and consideration for the needs of certain species will be addressed.

In 1996, the Service and the Swinomish Indian Tribal Community began cooperating to establish special regulations for migratory bird hunting. The Swinomish Indian Tribal Community is a federally recognized Indian Tribe consisting of the Swinomish, Lower Skagit, Samish, and Kikialous. The Swinomish Reservation was established by the Treaty of Point Elliott of January 22, 1855, and lies in the Puget Sound area north of Seattle, Washington.

For the 2022-23 season, the Tribal Community requested a migratory game bird hunting season on all areas that are open and unclaimed and consistent with the meaning of the treaty. The Tribe requested duck (including merganser), goose, coot, snipe, brant, mourning dove, and band-tailed pigeon seasons during September 1, 2022, through March 10, 2023. The daily bag limits would be 20 ducks, 10 geese, 5 brant, 25 coots, 15 snipe, 15 mourning doves, and 3 band-tailed pigeons. The possession limits would be two times the daily bag limits, except that the possession limit for coots would be three times the daily bag limit.

Shooting hours would be 30 minutes before official sunrise until 30 minutes after official sunset. Lead shot is prohibited.

The Community anticipates that the regulations will result in the harvest of approximately 600 ducks and 200 geese. The Swinomish utilize a report card and permit system to monitor harvest and will implement steps to limit harvest where conservation is needed. All Tribal regulations will be enforced by Tribal fish and game officers.

The Tulalip Tribes are the successors in interest to the Tribes and bands signatory to the Treaty of Point Elliott of January 22, 1855. The Tulalip Tribes' government is located on the Tulalip Indian Reservation just north of the City of Everett in Snohomish County, Washington. The Tribes or individual Tribal members own all of the land on the reservation, and they have full wildlife management authority. All lands within the boundaries of the Tulalip Tribes Reservation are closed to nonmember hunting unless opened by Tulalip Tribal regulations.

For ducks, mergansers, coots, and snipe, the Tribe requested seasons for Tribal members during September 1, 2022, through February 28, 2023. Daily bag and possession limits would be 15 and 30 ducks, respectively, except that for blue-winged teal, canvasbacks, harlequin ducks, pintail, and wood ducks, the bag and possession limits would be the same as those established in accordance with Federal frameworks for Washington. For coots, the daily bag and possession limits would be 25 and 75, respectively, and for snipe 8 and 24, respectively. Ceremonial hunting may be authorized by the Department of Natural Resources at any time upon application of a qualified Tribal member. Such a hunt must have a bag limit designed to limit harvest only to those birds necessary to provide for the ceremony.

For geese, the Tribe requested a season during September 1, 2022, through February 28, 2023. The daily bag and possession limits would be 10 and 30 geese, respectively, except that the bag limits for cackling geese and dusky Canada geese would be those established in accordance with Federal frameworks for Washington. The daily bag and possession limits for brant are 5 and 10, respectively.

For mourning doves, and band-tailed pigeon, the Tribe requested a season during September 1, 2022, through February 28, 2023. For mourning doves, the daily bag and possession limits would be 15 and 45, respectively. For band-tailed pigeon, the daily bag and possession limits would be 4 and 12, respectively.

All hunters on Tulalip Tribal lands are required to adhere to shooting hour regulations set at one-half hour before sunrise to sunset, use of federally approved nontoxic shot, special Tribal permit requirements, and a number of other Tribal regulations enforced by the Tribe. Each nontribal hunter 16 years of age and older hunting pursuant to Tulalip Tribes' Ordinance No. 67 must possess a valid Federal Duck Stamp and a valid State of Washington Migratory Waterfowl Stamp. Each hunter must validate stamps by signing across the face.

Although the season length requested by the Tulalip Tribes appears to be quite liberal, harvest information indicates a total take by Tribal and nontribal hunters of fewer than 1,000 ducks and 500 geese annually.

The Upper Skagit Indian Tribe and the Service have cooperated to establish special regulations for migratory game birds since 2001. The Tribe has jurisdiction over lands within Skagit, Island, and Whatcom Counties, Washington. The Tribe issues Tribal hunters a harvest report card that will be shared with the State of Washington.

For the 2022-23 season, the Tribe requested a duck season during October 1, 2022, through February 28, 2023. The daily bag and possession limits would be 15 and 20 ducks, respectively. The Tribe requests a coot season during October 1, 2022, through February 15, 2023. The daily bag and possession limits would be 20 and 30 coots, respectively.

The Tribe requested a goose season during October 1, 2022, through February 28, 2023. The daily bag and possession limits would be 7 and 10 geese, respectively. For brant, the Tribe requested a season during November 1 through 10, 2022, with a daily bag and possession limit of two brant.

The Tribe requested a mourning dove season during September 1 through December 31, 2022. The daily bag and possession limits would be 12 and 15 mourning doves, respectively.

The anticipated migratory bird harvest would be 100 ducks, 5 geese, 2 brant, and 10 coots. Tribal members must have the Tribal identification and Tribal harvest report card on their person to hunt. Tribal members hunting on the Reservation will observe all basic Federal migratory bird hunting regulations found in 50 CFR part 20, except shooting hours would be 15 minutes before official sunrise to 15 minutes after official sunset.

The Ute Indian Tribe of the Uintah and Ouray Reservation is a self-governing, federally recognized Tribe located in Northeastern Utah. The Ute Indian Tribe of the Uintah and Ouray Reservation is the second largest Indian Reservation in the United States and covers over 4.5 million acres. The Ute Indian Tribe started coordination with the Service in 2021 for special migratory bird hunting regulations. The Service and the Tribe have cooperatively established migratory bird hunting regulations for sandhill cranes and swans (tundra and incidental trumpeter) for the 2022-23 season. The Tribe does hunt other migratory game birds but follows the State of Utah (Uintah and Duchesne Counties) for seasons and bag limits except for in some cases where the Tribe may be more restrictive.

The Tribe requests authorization to issue 10 sandhill crane hunting permits to Tribal members only and a sandhill crane hunting season with an opening and closing date consistent with the State of Utah's earliest and latest sandhill crane hunting dates for the State. The bag and possession limit would be one sandhill crane per member/permit.

The Tribe requests authorization to issue five swan (tundra/trumpeter) hunting permits to Tribal members only and a swan season during dates consistent with the State of Utah swan season dates. The bag and possession limit would be one swan per member/permit. The Tribe will require all swan hunters to successfully complete an educational course on swan identification and conservation to minimize take of trumpeter swans during the swan season. All hunters that harvest a swan must have the swan or species-determinant parts examined by a biologist or other designated representative of the Tribe within 72 hours of harvest for species determination. The Tribe will evaluate hunter participation, species-specific swan harvest, and hunter compliance in providing species-determinant parts (at least the intact head) of harvested swans for species identification. The Tribe will use appropriate measures to maximize hunter compliance with the Tribe's program for swan harvest reporting. The Tribe will provide to the Service by June 30 following the swan season a report detailing hunter participation, species-specific swan harvest, and hunter compliance in reporting harvest.

The following restrictions are also proposed by the Tribe: No rifles, revolvers, pistols, or shotgun pellets larger than #2 birdshot may be used in pursuit of migratory game birds. Only Service-approved nontoxic shot may be used to take migratory game birds. No baiting is allowed, including no take of sandhill cranes on or over lands where standing crops have been manipulated to distribute or scatter grain or other feed on the land where it was grown. For additional information, see the Ute Indian Tribes General Hunting Regulations.

The White Earth Band of Ojibwe is a federally recognized Tribe located in northwest Minnesota and encompasses all of Mahnomen County and parts of Becker and Clearwater Counties. The reservation employs conservation officers to enforce migratory bird regulations. The Tribe and the Service first cooperated to establish special Tribal regulations in 1999.

The White Earth Band of Ojibwe requested a duck season during September 10 through December 11, 2022. The daily bag limit would be 10 ducks, including no more than 2 female mallards, 2 pintail, and 2 canvasbacks. For mergansers, the Tribe requested a season during September 10 through December 11, 2022. The daily bag limit would be five, no more than two of which may be hooded mergansers. For geese, the Tribe requested an early season during September 1 through 23, 2022, and a late season during September 24 through December 18, 2022. The daily bag limits would be 10 geese in the early season and 7 geese in the late season.

For coots, the Tribe requested a season during September 1 through November 30, 2022, with a daily bag limit of 20. For snipe, woodcock, rails, and mourning doves, the Tribe requested seasons during September 1 through November 30, 2022, with daily bag limits of 10, 10, 25, and 25, respectively. Shooting hours are one-half hour before sunrise to one-half hour after sunset. Nontoxic shot is required.

Based on past harvest surveys, the Tribe anticipates harvest of 1,000 to 2,000 Canada/cackling geese and 1,000 to 1,500 ducks. The White Earth Reservation Tribal Council employs four full-time conservation officers to enforce migratory bird regulations.

The White Mountain Apache Tribe owns all associated reservation lands, and the Tribe has recognized full wildlife management authority.

The hunting zone for waterfowl is restricted and is described as: The length of the Black River west of the Bonito Creek and Black River confluence and the entire length of the Salt River forming the southern boundary of the reservation; the White River, extending from the Canyon Day Stockman Station to the Salt River; and all stock ponds located within Wildlife Management Units 4, 5, 6, and 7. Tanks located below the Mogollon Rim, within Wildlife Management Units 2 and 3, will be open to waterfowl hunting during the 2022-23 season. The length of the Black River east of the Black River/Bonito Creek confluence is closed to waterfowl hunting. All other waters of the reservation would be closed to waterfowl hunting for the 2022-23 season.

For nontribal and Tribal members, the Tribe requested duck (except scaup), coot, merganser, gallinule, and moorhen hunting seasons during October 15, 2022, through January 22, 2023. For scaup, the Tribe requested a season during November 5, 2022, through January 22, 2023. The daily bag limit would be seven ducks (including merganser), which may include no more than two redheads, one pintail, two scaup (when open), two female mallards, and two canvasbacks. The daily bag limit for coots and gallinules would be 25 in the aggregate.

For Canada/cackling geese, the Tribe requested a season during October 15, 2022, through January 22, 2023. The daily bag and possession limits would be three and six Canada/cackling geese, respectively.

Seasons for band-tailed pigeons and mourning doves are closed.

Possession limits are two times the daily bag limits. Shooting hours would be from one-half hour before sunrise to sunset. There would be no open season for sandhill cranes, rails, and snipe on the White Mountain Apache lands under this proposal.

A number of special regulations apply to Tribal and nontribal hunters, which may be obtained from the White Mountain Apache Tribe Game and Fish Department.

The Department of the Interior's policy is, whenever possible, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgating final migratory game bird hunting regulations, we will consider all comments we receive. These comments, and any additional information we receive, may lead to final regulations that differ from these proposals.

You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES . We will not accept comments sent by email or fax. We will not consider mailed comments that are not postmarked by the date specified in DATES .

We will post all comments in their entirety—including your personal identifying information—on https://www.regulations.gov. 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.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on https://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Division of Migratory Bird Management, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments we receive during the comment period and respond to them after the closing date in the preamble of a final rule.

Based on our most current data, we are affirming our required determinations made in the August 31, 2021, proposed rule (86 FR 48649); please see that document for descriptions of our actions to ensure compliance with the following statutes and Executive Orders:

• National Environmental Policy Act;

• Endangered Species Act;

• Regulatory Flexibility Act;

• Small Business Regulatory Enforcement Fairness Act;

• Unfunded Mandates Reform Act;

• Executive Orders 12630, 12866, 12988, 13132, 13175, 13211, and 13563.

This proposed rule contains existing information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501 et seq. ). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB has reviewed and approved the information collection requirements associated with establishing annual migratory bird hunting seasons and migratory bird surveys and assigned the following OMB control numbers:

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 10/31/2024);

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 2/29/2024); and

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 4/30/2023).

The rules that eventually will be promulgated for the 2022-23 hunting season are authorized under 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j.