Animal and Plant Health Inspection Service
Farm Service Agency
Federal Crop Insurance Corporation
Foreign Agricultural Service
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Army Department
Federal Energy Regulatory Commission
Southeastern Power Administration
Centers for Disease Control and Prevention
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Land Management Bureau
National Park Service
Antitrust Division
Drug Enforcement Administration
Justice Programs Office
Employment and Training Administration
Mine Safety and Health Administration
Occupational Safety and Health Administration
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Comptroller of the Currency
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Foreign Agricultural Service, USDA.
Interim final rule; request for comments.
This interim final rule amends the regulations that provide for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule of the United States (HTSUS). The rule suspends for an additional year the historical license reduction provision which would otherwise apply beginning with the 2023 quota year. This change will allow license holders additional time to adjust to challenging market conditions impacting the dairy sector.
Effective August 30, 2022. Send comments on or before September 29, 2022.
You may send comments, identified by [docket number and/or RIN number], by any of the following methods:
•
•
•
•
Elizabeth Riley, (202) 720 6868; or by email at:
The Foreign Agricultural Service (FAS), under a delegation of authority from the Under Secretary of Agriculture, administers the Dairy Tariff-Rate Quota Import Licensing regulations codified at 7 CFR 6.20 through 6.36 that provide for the issuance of licenses to import certain dairy articles under TRQs as set forth in certain notes in Chapter 4 of the HTSUS. These dairy articles may be entered into the United States at the low-tier tariff only by or for the account of a person, as defined in the regulations, to whom such licenses have been issued and only in accordance with the terms and conditions of the regulations. Licenses are issued on a calendar year basis and each license authorizes the licensee to import a specified quantity and type of dairy article from a specified country of origin.
FAS issues three types of dairy import licenses: historical, non-historical (lottery), and designated. For all three license types, persons must apply each year between September 1 and October 15. Historical and designated licensees may apply for lottery licenses subject to certain conditions. Licensees may fail to qualify for a license for a specific item from a specific country in the following year if they do not meet certain requirements. Licensees must (i) apply for the license each year, (ii) pay an annual fee, and (iii) have imported at least 85 percent of the final license amount from the previous year. To avoid ineligibility due to the 85-percent rule, licensees may surrender up to 100 percent of the license, but must import 85 percent of any quantity not surrendered.
Section 6.25(b) of the regulations provides that beginning with the 2023 quota year, any historical licensee who surrenders more than 50 percent of the license amount for the same item from the same country during at least three of the most recent five years will be issued a historical license thereafter in an amount equal to the average amount imported under that license for those five quota years. FAS has suspended § 6.25(b) on four previous occasions, most recently for an additional seven years encompassing the 2016-2022 quota years.
This rule provides historical license holders additional time to adjust to changing market conditions by suspending implementation of § 6.25(b) through the end of quota year 2023. FAS recognizes that COVID-19 pandemic-related shipping delays have made economic conditions difficult for several of the past years. In addition, the United States imposed retaliatory tariffs on certain EU exports from October 2019 until June 2021, including certain dairy products, in response to the EU's failure to implement the World Trade Organization Dispute Settlement Body's recommendations in the dispute
Pursuant to the Administrative Procedure Act (APA), notice and comment are not required prior to the issuance of a final rule if an agency, for good cause, finds that “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” (5 U.S.C. 553(b)(B)). As discussed above, FAS has determined that recent market events warrant suspending § 6.25(b) for quota year 2023.
To have a meaningful effect, the amendment suspending § 6.25(b) for the next quota year must take effect prior to the application period for quota year 2023, which begins September 1, 2022, and ends on October 15, 2022. For this reason, FAS finds good cause exists to issue the rule without notice and comment pursuant to 5 U.S.C. 553(b)(B), and without a delayed effective date pursuant to 5 U.S.C. 553(d)(3). Although this rule will take immediate effect, FAS invites interested persons to submit comments on the rule and will consider all relevant comments when determining whether further amendments to the regulation are needed.
The rule has been determined to be not significant under E.O. 12866 and has been reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule has been reviewed under E.O. 12988. This rule meets the applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The provisions of this rule would not have a preemptive effect with respect to any State or local laws, regulations, or policies which conflict with such provision or which otherwise impede their full implementation. This rule will not have a retroactive effect. Before any judicial action may be brought forward regarding this rule, all administrative remedies must be exhausted.
FAS has reviewed this rule in accordance with E.O. 13132 regarding federalism and has determined that it does not have “federalism implications.” The rule will not “have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”
This rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Administrator has determined that this action will not have a significant effect on the quality of the human environment. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is necessary for this rule.
This rule does not impose an unfunded mandate or any other requirement on state, local, or tribal governments. Accordingly, these programs are not subject to the provisions of the Unfunded Mandates Reform Act (2 U.S.C. 1501
This Executive Order requires careful evaluation of governmental actions that interfere with constitutionally protected property rights. This rule does not interfere with any property rights and, therefore, does not need to be evaluated on the basis of the criteria outlined in E.O. 12630.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Agricultural commodities, Dairy, Cheese, Imports, Procedural rules, Application requirements, Tariff-rate quota, Reporting and recordkeeping requirements.
Accordingly, for these reasons, 7 CFR part 6 is amended as follows:
Additional U.S. Notes 6, 7, 8, 12, 14, 16-23 and 25 to Chapter 4 and General Note 15 of the Harmonized Tariff Schedule of the United States (19 U.S.C. 1202), Pub. L. 97-258, 96 Stat. 1051, as amended (31 U.S.C. 9701), and secs. 103 and 404, Pub. L. 103-465, 108 Stat. 4819 (19 U.S.C. 3513 and 3601).
(b)
Federal Crop Insurance Corporation, U.S. Department of Agriculture (USDA).
Correcting amendment.
On June 30, 2022, the Federal Crop Insurance Corporation revised the Area Risk Protection Insurance (ARPI) Regulations, Common Crop Insurance Policy (CCIP) Basic Provisions, and 20
Effective August 30, 2022.
Francie Tolle; telephone (816) 926-7730; email
The Common Crop Insurance Regulations in 7 CFR part 457 were revised by a final rule with request for comments published in the
• Common Crop Insurance Policy Basic Provisions (7 CFR 457.8)
• Pear Crop Insurance Provisions (7 CFR 457.111);
• Guaranteed Production Plan of Fresh Market Tomato (7 CFR 457.128);
• Macadamia Nut Crop Insurance Provisions (7 CFR 457.131);
• Onion Crop Insurance Provisions (7 CFR 457.135);
• Fresh Market Tomato Dollar Plan Crop Insurance Provisions (7 CFR 457.139);
• Table Grape Crop Insurance Provisions (7 CFR 457.149);
• Pecan Revenue Crop Insurance Provisions (7 CFR 457.167);
• Cabbage Crop Insurance Provisions (7 CFR 457.171);
• Florida Avocado Crop Insurance Provisions (7 CFR 457.173); and
• California Avocado Crop Insurance Provisions (7 CFR 457.175).
Acreage allotments, Crop insurance, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 457 is corrected by making the following amendments:
7 U.S.C. 1506(l), 1506(o).
The revision reads as follows:
(d) * * *
(1) We will make decisions regarding what constitutes a good farming practice and determinations of assigned production for uninsured causes for your failure to use good farming practices.
(i) If you disagree with our determination of the amount of assigned production, you must use the arbitration or mediation process contained in this section.
(ii) If you disagree with our decision of what constitutes a good farming practice you may request through us that FCIC review our decision. Requests for FCIC review must be made within 30 days of the postmark date on the written notice of the determination regarding good farming practices.
(iii) You may not sue us for our decisions regarding whether good farming practices were used by you. You must request a determination from FCIC of what constitutes a good farming practice before filing any suit against FCIC.
The revision reads as follows:
(c) * * *
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Leonardo S.p.a. (Leonardo) Model AW139 helicopter. This helicopter as modified by The Boeing Company (Boeing) will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for helicopters. This design feature incorporates a 2.5-minute all engines operating (AEO) power restricted for use at helicopter operating speeds below 60 knots indicated airspeed (KIAS), and hovering out of ground effect (HOGE). This power is referred to as 2.5-minute HOGE utility power (HUP), or 2.5-minute HUP. The 2.5-minute HUP is greater than the transmission power limitations associated with takeoff and AEO. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Effective September 29, 2022.
Dorina Mihail, Propulsion and Energy Section, AIR-624, Technical Innovation Policy Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 1200 District Avenue, Burlington, MA 01803; telephone 781-238-7153; fax 781-238-7199; email
On September 18, 2020, Boeing applied for a supplemental type certificate for performance envelope expansion of the Leonardo Model AW139 helicopter. The AW139 helicopter as changed, is a medium twin-engine 14 CFR part 29 transport category B helicopter with a 15,521 pounds (7040 Kg) maximum takeoff weight and a maximum seating capacity of nine passengers and two crew. This helicopter takeoff and landing altitude is 10,000 feet density altitude (Hd), and the forward flight altitude is 11,000 feet Hd. This helicopter has the capability for Category II instrument landing system (ILS) approaches. The Model AW139 helicopter as changed will be equipped with two PT6C-67C1 engines. The Model AW139 helicopter as changed will have a 2.5-minute HUP for use in HOGE that exceeds the transmission power limitations associated with takeoff and AEO.
Under the provisions of 14 CFR 21.101, Boeing must show that the Leonardo Model AW139 helicopter, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. R00002RD, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The proposed certification basis for this supplemental type certificate is as follows:
14 CFR 21.29 and Part 29, Amendment 29-1 through Amendment 29-45 with 14 CFR 29.25, 29.143, 29.173, 29.175, 29.177 at Amendment 29-51, and 14 CFR 29.773 at Amendment 29-57.
Equivalent Level of Safety Findings issued against:
14 CFR 29.1305, as documented in the AB139 FAA Memo, dated December 20, 2004.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Leonardo Model AW139 helicopter must comply with the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Leonardo Model AW139 helicopter will incorporate a novel or unusual design feature, which is a 2.5-minute AEO power that is greater than the transmission takeoff power limitations associated with takeoff and AEO. This power is restricted for use when HOGE and at helicopter operating speeds below 60 KIAS. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.
The design feature will incorporate a 2.5-minute HUP that allows the pilot to enter HOGE, operate in HOGE, and depart from HOGE at high altitudes and ambient atmospheric temperatures. The use of the 2.5-minute HUP is limited to periods of no longer than 2.5 minutes each use, under AEO conditions, at helicopter operating speeds below 60 KIAS and HOGE. Use of the 2.5-minute HUP is not part of, or combined with a takeoff operation.
Helicopter operation at the 2.5-minute HUP will use the engine power higher than the rated maximum continuous power and limits but lower than the rated takeoff power and limits and does not exceed the 5 minute takeoff rating for which the engines are type certificated. Existing part 33 regulations for the engines are adequate for the helicopter 2.5-minute HUP.
Use of the 2.5-minute HUP exceeds the helicopter transmission power limitations associated with takeoff and AEO. Existing part 29 regulations do not recognize helicopter operation that exceeds the transmission power limitations associated with takeoff and AEO. The special conditions that address the use of the 2.5-minute HUP on this model of helicopter, as modified by Boeing, are as follows.
The Rotorcraft Flight Manual must specify that the use of the 2.5-minute HUP is limited to periods no longer than 2.5 minutes each, under AEO conditions, at helicopter operating speeds below 60 KIAS and HOGE. Additionally, the Rotorcraft Flight Manual must specify that use of the 2.5-minute HUP is not part of, or combined with, a takeoff operation.
The requirement added to § 29.49(c) provides for the development of helicopter performance data for 2.5-minute HUP utilization.
The testing requirement added to § 29.923(d) consists of two applications of 2.5-minute HUP torque and the maximum speed per 10-hour cycle. The 10-hour cycle represents a run of 10 hours in length that is repeated 20 times, for a total of (at least) 200 hours of endurance testing as required by § 29.923(a). Therefore, the testing added to § 29.923(d) provides for 40 applications of the 2.5-minute HUP during the 200-hour endurance test specified in § 29.923(a). This testing is added to § 29.923(d) “Endurance tests; 90 percent of maximum continuous run,” since the 2.5-minute HUP is not part of, or combined with, a takeoff operation, as stated in these special conditions and is expected to be used during mid-mission.
The flight-test requirement added to § 29.1049 is intended to address the hovering cooling provisions at the 2.5-minute HUP and HOGE following thermal stabilization at maximum weight, mission representative power, maximum altitude, and ambient temperatures specified in § 29.1043(b). The flight-test continues with cycling in and out of the HUP mode, in a manner representative of the intended use of the 2.5-minute HUP, per the instructions specified in the Rotorcraft Flight Manual. The repeated successive HUP applications and time duration between HUP cycles result in the most critical condition for the cooling provisions required by § 29.1041(a) and § 29.1041(b). The flight-test continues with departing the hover and transitioning to a maximum continuous power climb at the best rate of climb speed. Climb is continued for 5 minutes after the highest temperatures are observed or until the service ceiling is reached.
The requirements added to § 29.1305 are means for the pilot to identify when the 2.5-minute HUP level is achieved, when the event begins, and when the time interval expires. These means will assist the pilot in managing the 2.5-minute HUP short time duration in a pilot high-workload environment.
The requirements added to § 29.1521 are similar to the powerplant limitations for takeoff operations in § 29.1521(b), modified to reflect the 2.5-minute HUP.
The requirement added to § 29.1587(b)(8) will require publishing the performance data developed under paragraph (b) of these special conditions in the Rotorcraft Flight Manual. These data must be clearly referenced to the appropriate hover charts and specify that they are not to be used for take-off or landing determinations.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA issued Notice of Proposed Special Conditions No. 29-22-01-SC for the Leonardo Model AW139 helicopter, which was published in the
As discussed above, these special conditions are applicable to the Leonardo Model AW139 helicopter. Should Boeing apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. R00002RD, to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only a certain novel or unusual design feature on the Leonardo Model AW139 helicopter. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of this feature on the helicopter.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701-44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Leonardo S.p.a. Model AW139 helicopter, as modified by The Boeing Company.
(a) The Rotorcraft Flight Manual must state the following:
(1) Use of the 2.5-minute Hovering Out of Ground Effect (HOGE) Utility Power (2.5-minute HUP) is limited to a period no longer than 2.5 minutes each, under all engine operating (AEO) conditions, at helicopter operating speeds below 60 knots indicated airspeed (KIAS) and HOGE.
(2) Use of the 2.5-minute HUP is not part of, or combined with, a takeoff operation.
(b) In addition to the requirements of § 29.49(c), the out-of-ground effect hover performance must be determined over
(c) In addition to the requirements of § 29.923(d) when performing the endurance test, the 2.5 minute all engines operating must be performed using two applications of 2.5-minute HUP torque and the maximum speed for use with 2.5-minute HUP torque, per 10-hour cycle.
(d) In addition to the requirements of § 29.1049, the hovering cooling provisions at the 2.5-minute HUP must be shown as follows—
(1) Conduct a thermal stabilization at maximum weight, mission representative power, maximum altitude, and ambient temperatures specified in § 29.1043(b); following stabilization, increase power to the 2.5-minute HUP and HOGE for a duration of 2.5 minutes (150 seconds).
(2) Cycle in and out the HUP mode in a manner representative of the intended use of the 2.5-minute HUP, and per the instructions specified in the Rotorcraft Flight Manual, if any. The HUP cycles should account for repeated successive HUP applications and time duration between HUP cycles resulting in the most critical condition for the cooling provisions required by § 29.1041(a) and § 29.1041(b).
(3) Following the tests in paragraphs (d)(1) and (d)(2) of these special conditions, depart the hover and transition to a maximum continuous power climb at the best rate of climb speed. Continue the climb until 5 minutes after the highest temperatures are observed or until the service ceiling is reached.
(e) In addition to the requirements of § 29.1305, the pilot must have the means to identify the 2.5-minute HUP time limit associated with its use as follows—
(1) When the power level is achieved,
(2) when the event begins, and
(3) when the time interval expires.
These indications must be clear and unambiguous to the pilot and must not cause pilot confusion. The use of these indications must be evaluated in operationally relevant scenarios in accordance with § 29.1523 for crew workload.
(f) In addition to the requirements of § 29.1521, the use of the 2.5-minute HUP must be limited by the following:
(1) The maximum rotational speed, which may not be greater than—
(i) The maximum value determined by the rotor design; or
(ii) The maximum value demonstrated during the type tests;
(2) The maximum allowable turbine inlet or turbine outlet gas temperature (for turbine engines);
(3) The maximum allowable power or torque for each engine, considering the power input limitations of the transmission with all engines operating;
(4) The maximum allowable power or torque for each engine considering the power input limitations of the transmission with one engine inoperative;
(5) The time limit for the use of the power corresponding to the limitations established in paragraphs (f)(1) through (f)(4) of these special conditions; and
(6) The maximum allowable engine and transmission oil temperatures, if the time limit established in paragraph (f)(5) of these special conditions exceeds 2 minutes.
(7) Use of 2.5-minute HUP is limited to HOGE only.
(g) In addition to the requirements of § 29.1587(b)(8), the Rotorcraft Flight Manual must contain the out-of-ground effect hover performance determined under paragraph (b) of these special conditions, and the maximum safe wind demonstrated under the ambient conditions for the data presented. In addition, the Rotorcraft Flight Manual must include the maximum weight for each altitude and temperature condition at which the rotorcraft can safely hover out-of-ground-effect in winds not less than 17 knots from all azimuths. These data must be clearly referenced to the appropriate hover charts and specify that they are not to be used for take-off or landing determinations.
Environmental Protection Agency (EPA).
Final action.
The Environmental Protection Agency (EPA) is taking final action finding that 15 states have failed to submit State Implementation Plans (SIPs) to satisfy the visibility protection requirements of the Clean Air Act (CAA), as described in implementing regulations, for the regional haze second planning period. These findings of failure to submit establish a 2-year deadline for the EPA to promulgate Federal Implementation Plans (FIPs) to address these requirements for a given state unless, prior to the EPA promulgating a FIP, the state submits, and the EPA approves, a SIP that meets these requirements.
Effective date of this action is September 29, 2022.
General questions concerning this document should be addressed to Mr. Joseph Stein, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-04, 109 TW Alexander Drive, Research Triangle Park, NC 27711; telephone number: (919) 541-0195; email address:
Section 553 of the APA, 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this final agency action without prior proposal and opportunity for comment because no significant EPA judgment is involved in making a finding of failure to submit SIPs, or elements of SIPs, required by the CAA, where states have made no submissions or incomplete submissions, to meet the requirement. Thus, notice and public procedure are unnecessary. The EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).
The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2022-0320. All documents in the docket are listed and publicly available at
The following chart shows the states that failed to make a complete second planning period regional haze SIP submittal as required by EPA's Regional Haze Rule, 40 CFR 51.308, promulgated pursuant to the visibility protection provisions of the CAA found at CAA sections 169A and 169B. for the regional haze second planning period. For questions related to specific states mentioned in this document, please contact the appropriate EPA Regional office:
In the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's mandatory Class I Federal areas, which include certain national parks and wilderness areas.
In 1990, Congress added section 169B to the CAA to further address visibility impairment, specifically, impairment from regional haze. CAA 169B. The EPA promulgated the Regional Haze Rule (RHR), codified at 40 CFR 51.308, on July 1, 1999. (64 FR 35714, July 1, 1999). These regional haze regulations are a central component of the EPA's comprehensive visibility protection program for Class I areas. The RHR requires iterative SIP revisions that address the reasonable progress requirements for each 10-15 year planning period. Regional haze SIPs for the first planning period were due from states in December 2007. Much of the focus in the first implementation period of the regional haze program, which ran from 2007 through 2018, was on satisfying states' statutory requirement that certain older, larger sources of visibility impairing pollutants install and operate the Best Available Retrofit Technology (BART). CAA 169(b)(2)(A); 40 CFR 51.308(d), (e).
In 2017, the EPA promulgated revisions to the RHR, (82 FR 3078, January 10, 2017), that apply for the second and subsequent implementation periods. The 2017 rulemaking made several changes to the requirements for regional haze SIPs to clarify states' obligations and streamline certain regional haze requirements. The revisions to the regional haze program for the second and subsequent implementation periods focused on the requirement that states' SIPs contain provisions for making reasonable progress towards the national visibility goal. The reasonable progress requirements as revised in the 2017 rulemaking (referred to here as the 2017 RHR Revisions) are codified at 40 CFR 51.308(f). Additionally, the 2017 RHR Revisions adjusted the deadline for states to submit their second implementation period SIPs from July 31, 2018, to July 31, 2021. 82 FR 3115.
Pursuant to CAA section 110(k)(1)(B), the EPA must determine no later than 6 months after the date by which a state is required to submit a SIP whether a
Some states have submitted complete second planning period regional haze SIPs as required under the CAA and the RHR, but at present 15 states have not yet submitted complete SIPs to the EPA to satisfy these requirements of the CAA and RHR. The EPA is by this action making a finding of failure to submit for those states.
As mentioned previously, the 2017 RHR Revisions set the deadline for states to submit their second planning period regional haze SIPs by July 31, 2021. 40 CFR 51.308(f). In total, 15 states have failed to submit complete SIPs while 35 states and the District of Columbia have submitted complete SIPs addressing CAA sections 169A and 169B for the regional haze second planning period. The EPA has included in the docket for this action its correspondence with states regarding the completeness of their SIP submissions. SIPs may be considered complete by either of two methods. First, the EPA may make a determination that a SIP is complete under the “completeness criteria” set out at 40 CFR part 51, appendix V.
The EPA is making findings of failure to submit for 15 states. The EPA finds the following states have not submitted complete regional haze SIPs that meet the requirements of the RHR and CAA sections 169A and 169B for the regional haze second planning period: Alabama, Illinois, Iowa, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, New Mexico, Pennsylvania, Rhode Island, Vermont, and Virginia. Notwithstanding these findings, and the associated obligation of the EPA to promulgate FIPs for these states within 2 years of these findings, the EPA intends to continue to work with states subject to these findings to assist them in developing approvable SIP submittals in a timely manner.
The purpose of this action is to make findings that the named states failed to provide the identified SIP submissions to the EPA that are required under the RHR and the CAA. As such, this action, in and of itself, does not adversely affect the level of protection provided for human health or the environment. Moreover, it is intended that the actions and deadlines resulting from this document will promote greater protection for U.S. citizens, including minority, low-income, or indigenous populations, by ensuring that states meet their statutory obligation to develop and submit SIPs consistent with visibility protection requirements.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act. This final action does not establish any new information collection requirement apart from what is already required by law. This finding relates to the requirement in the CAA for states to submit SIPs under section 169A and 169B of the CAA for the regional haze second planning period.
This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553 or any other statute. This action is not subject to notice and comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b). The Agency certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The action is a finding that the named states have not made the necessary SIP submission for regional haze to meet the requirements under sections 169A and 169B of the CAA.
This action does not contain any unfunded mandate as described in UMRA 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is a finding that certain states have failed to submit a complete SIP that satisfies regional haze requirements under sections 169A and 169B of the CAA for the second planning period and does not directly or disproportionately affect children.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. In finding that certain states have failed to submit a complete SIP that satisfies the regional haze requirements under sections 169A and 169B of the CAA for the regional haze second planning period, this action does not adversely affect the level of protection provided to human health or the environment.
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Section 307(b)(l) of the CAA indicates which federal Courts of Appeal have venue for petitions of review of final actions by the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if: (i) The agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” This final action is nationally applicable. To the extent a court finds this final action to be locally or regionally applicable, the EPA finds that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). This final action consists of findings of failure to submit required regional haze SIPs for the second planning period from 15 states located in six of the ten EPA Regional offices. This final action is also based on a common core of factual findings concerning the receipt and completeness of the relevant SIP submittals. For these reasons, this final action is nationally applicable or, alternatively, to the extent a court finds this action to be locally or regionally applicable, the Administrator has determined that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the
Environmental protection, Administrative practice and procedures, Air pollution control, Incorporation by reference, Intergovernmental relations, and Reporting and recordkeeping requirements.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS implements an accountability measure for red snapper in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings of red snapper have reached the commercial annual catch limit (ACL) for the 2022 fishing year. Therefore, NMFS is closing the commercial sector for red snapper in the South Atlantic EEZ. This closure is necessary to protect the red snapper resource.
This temporary rule is effective from 12:01 a.m., eastern time, on August 31, 2022, through December 31, 2022.
Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The snapper-grouper fishery of the South Atlantic includes red snapper and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The commercial ACL for red snapper in the South Atlantic is 124,815 lb (56,615 kg), round weight, as specified in 50 CFR 622.193(y)(1).
Under 50 CFR 622.193(y)(1), NMFS is required to close the commercial sector for red snapper when the commercial ACL is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined that the commercial ACL for South Atlantic red snapper will be reached by August 31, 2022. Accordingly, the commercial sector for South Atlantic red snapper is closed effective at 12:01 a.m., eastern time, on August 31, 2022. For the 2023 fishing year, unless otherwise specified, the commercial season will begin on the second Monday in July (50 CFR 622.183(b)(5)(i)).
The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having red snapper on board must have landed and bartered, traded, or sold such red snapper prior to 12:01 a.m., eastern time, on August 31, 2022. Because the recreational sector closed on July 10, 2022 (87 FR 31190; May 23, 2022), after the commercial sector closure that is effective on August 31, 2022, all harvest and possession of red snapper in or from the South Atlantic EEZ is prohibited for the remainder of the 2022 fishing year.
On and after the effective date of the closure notification, all sale or purchase of red snapper is prohibited. This prohibition on the harvest, possession, sale or purchase applies in the South Atlantic on a vessel for which a valid Federal commercial or charter vessel/headboat permit for South Atlantic snapper-grouper has been issued, regardless if such species were harvested or possessed in state or Federal waters (50 CFR 622.193(y)(1) and 622.181(c)(2)).
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(y)(1), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), the NMFS Assistant Administrator (AA) finds good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule that established the commercial season, ACL, and accountability measure for red snapper has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect red snapper because the capacity of the fishing fleet allows for rapid harvest of the commercial ACL. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established commercial ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of data availability (NODA), public meeting, and extension of the comment period.
On July 7, 2022, the U.S. Department of Energy (“DOE” or “the Department”) published in the
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
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No telefacsimilies (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on the rulemaking process, see section II of this document (Public Participation).
The docket web page can be found at
Ms. Julia Hegarty, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 597-6737. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-5827. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting webinar, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
On July 7, 2022, the U.S. Department of Energy (“DOE”) published in the
The computer model DOE uses to calculate the LCC and PBP relies on Monte Carlo simulations to incorporate uncertainty and variability into the analysis. The Monte Carlo simulations randomly sample input values from probability distributions and NGWF and MHGF user samples. For this rulemaking, the Monte Carlo approach is implemented in MS Excel together with the Crystal Ball
In the version of the LCC spreadsheet that DOE published in July accompanying the NOPR, the specific sequence of random numbers utilized by the Monte Carlo simulation was inadvertently changed from the version of the analysis presented in the NOPR and the TSD. As a result, the published LCC spreadsheet produces similar results to the NOPR and TSD that support the same policy outcome, but the currently published version of the LCC spreadsheet will not provide exactly the same results as the NOPR or technical support document tables. This is expected behavior for a Monte Carlo simulation relying on random number generation if the sequence of random numbers is allowed to change. The relative comparison of the various proposed energy conservation standard levels in the published LCC spreadsheet remains similar to the comparison presented in the NOPR. DOE notes that the conclusions of the analysis, the policy decision, and associated rationale are not impacted by this sampling variability.
In this notice of data availability (“NODA”), DOE is announcing that the Department is making available in the docket of the rulemaking and on the furnace rulemaking website page to interested persons a revised version of the LCC spreadsheet in which the random number generation is fixed in place, thereby producing the same results as presented in the NOPR and TSD.
Additionally, DOE held a public meeting webinar on August 3, 2022 to discuss the analyses and proposals presented in the July 2022 NOPR, at which several interested parties requested that DOE hold a separate meeting to further explain the LCC spreadsheet. In addition, on August 11, 2022, the American Gas Association (“AGA”), American Public Gas Association (“APGA”), National Propane Gas Association (“NPGA”), Spire Inc, Spire Missouri Inc, Spire Alabama Inc, and Atmos Energy Corporation (“Atmos Energy”) (collectively, “Joint Requesters”) submitted a joint comment reiterating their request from the August 3, 2022 webinar that DOE hold a separate workshop on its LCC model. (Joint Requesters, No. 345 at p. 1)
Lastly, the in the July 2022 NOPR, DOE stated it would accept written comments, data, and information on the proposal until September 6, 2022. 87 FR 40590, 40590 (July 7, 2022). DOE received four requests for an extension of the NOPR public comment period. On July 25, 2022, DOE received a joint request from the Joint Requesters
On August 11, 2022, DOE received a second submission from the Joint Requestors, which, as discussed previously, requested that DOE hold a workshop on the LCC model. The Joint Requestors also urged that the comment period be extended by 45 days after the receipt of the results of the workshop. (Joint Requesters, No. 345 at p. 1)
DOE has reviewed these requests. Based on these requests, this NODA, and the newly scheduled webinar, DOE is extending the comment period to allow additional time for interested parties to review the revised LCC spreadsheet, participate in the webinar, and provide comments on the NOPR and associated docketed materials. DOE believes that allowing 30 days after the workshop is sufficient and is responsive to the requestors. Therefore, DOE is extending the NOPR comment period until October 6, 2022.
The time and date of the webinar meeting are listed in the
DOE will designate a DOE official to preside at the webinar/public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing
The public meeting webinar will be conducted in an informal, conference style. DOE will present an overview on the operation of the analytical tools. DOE encourages all interested parties to ask clarifying questions. The official conducting the public meeting webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting webinar.
A transcript of the public meeting webinar will be included in the docket, which can be viewed as described in the Docket section at the beginning of this NODA. In addition, any person may buy a copy of the transcript from the transcribing reporter.
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting webinar, but no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. 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
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. 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, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
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).
The Secretary of Energy has approved publication of this notification of data availability, public meeting, and extension of the comment period.
This document of the Department of Energy was signed on August 24, 2022, by Dr. Geraldine L. Richmond, Undersecretary for Science and Innovation, 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 Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to amend Class E airspace extending upward from 700 feet above the surface at Albert S. Nader Regional Airport, Oneonta, NY, by updating the airport's name and removing the Rockdale VORTAC from the Class E airspace description, as well as amending the radius, and removing an extension. Also, this action would update the airport's geographic coordinates. This action would enhance the safety and management of controlled airspace within the national airspace system.
Comments must be received on or before October 14, 2022.
Send comments on this proposal to: the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; Telephone: (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2022-1073; Airspace Docket No. 22-AEA-13, at the beginning of your comments. You may also submit comments through the internet at
FAA Order JO 7400.11F, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed rulemaking is promulgated under the authority described in Subtitle VII, part A, Subpart I, Section 40103. Under that section the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace for Albert S. Nader Regional Airport, Oneonta, NY, to support IFR operations in the area.
Interested persons are invited to comment on this rule by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA-2022-1073 and Airspace Docket No. 22-AEA-13), and be submitted in triplicate to the DOT Docket Operations (see
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the
This document proposes to amend FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface for Albert S. Nader Regional Airport (formerly Oneonta Municipal Airport), Oneonta, NY, by updating the airport's name and geographic coordinates to coincide with the FAA's database. Also, an airspace evaluation resulted in an increase of the Class E airspace radius to 6.7-miles (previously 6.5-miles) and the removal of the southwest extension. The Rockdale VORTAC would be removed from the airspace description, as it is unnecessary in describing the airspace. This action would enhance the safety and management of controlled airspace within the national airspace system.
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal would be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.7-mile radius of Albert S. Nader Regional Airport.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing to update the list of marine events occurring annually within the Eleventh Coast Guard District, specifically within the San Francisco Captain of the Port (COTP) zone. This rule would enable vessel movement restrictions in the regulated area when the special local regulations are activated and enforced. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before September 29, 2022.
You may submit comments identified by docket number USCG-2022-0611 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email LT Anthony Solares, Sector San Francisco, U.S. Coast Guard; telephone 415-399-3585, email
The Coast Guard regularly updates the regulations for recurring special local regulations within the Eleventh Coast Guard District listed in 33 CFR 100.1103. These recurring special local regulations are for marine events that take place either on or over the navigable waters of the Eleventh Coast Guard District as defined at 33 CFR 3.55-1. These regulations were last amended February 13, 2020 (85 FR 8169).
The Coast Guard is proposing to add two events to table 1 to 33 CFR 100.1103, the Sacramento Ironman Swim, which typically occurs on a Sunday in October, and the Escape from Alcatraz Swim, which typically occurs one weekend in June. Unauthorized persons or vessels would be prevented from entering into, transiting through, or remaining in the regulated areas without the permission of the Captain of the Port San Francisco or a designated representative during the events. These regulations are needed to keep spectators and vessels a safe distance away from the specified events to ensure the safety of participants, spectators, and transiting vessels. We would publish notices of enforcements in the
We are also proposing small, technical changes to correct minor scrivener's errors in the current text.
The regulatory text we are proposing, which includes details for the location of these events, appears at the end of this document. We also included maps showing the general locations of the Sacramento Ironman Swim event and the Escape from Alcatraz Swim event in the docket USCG-2022-0611.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of 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,
This regulatory action determination is based on the size and location of the regulated areas. The effect of this rule will not be significant because vessel traffic can either pass safely around these areas, regardless of size, or this rule will encompass only a small portion of the waterway for a short duration. Vessels will also be able to request permission from the COTP to transit through the regulated areas.
The Regulatory Flexibility Act of 1980, 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 regulated area 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 proposed rule would have a significant economic impact on it, please submit a comment (see
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 proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a 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 call or email the person listed in the
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 would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination 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 involves revision of 33 CFR 100.1103. The proposed additions to table 1 of 33 CFR 100.1103 will capture recurring marine events in the San Francisco Captain of the Port (COTP) zone. The revised regulation will prevent unauthorized persons or vessels from entering into, transiting through, or remaining in the regulated areas without the permission of the Captain of the Port San Francisco or a designated representative. Normally such actions are categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
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.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
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(1) No spectator shall anchor, block, loiter, nor impede the through transit of participants or official patrol vessels in the regulated areas during all applicable effective dates and times unless cleared to do so by or through an official patrol vessel.
(2) When hailed or signaled by an official patrol vessel, any spectator located within a regulated area during all applicable effective dates and times shall come to an immediate stop.
(3) The Patrol Commander (PATCOM) is empowered to forbid and control the movement of all vessels in the regulated area. The Patrol Commander shall be designated by the cognizant Coast Guard Sector Commander; will be a U.S. Coast Guard commissioned officer, warrant officer, or petty officer to act as the Sector Commander's official representative; and will be located aboard the lead official patrol vessel. As the Sector Commander's representative, the PATCOM may terminate the event any time it is deemed necessary for the protection of life and property. The PATCOM may be reached on VHF-FM Channel 13 (156.65MHz) or 16 (156.8MHz) when required, by the call sign “PATCOM”.
(4) The Patrol Commander may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.
(5) The Coast Guard may be assisted by other Federal, state, or local agencies.
Environmental Protection Agency (EPA).
Notices of filing of petitions and request for comment.
This document announces the Agency's receipt of initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before September 29, 2022.
Submit your comments, identified by docket identification (ID) number and the pesticide petition (PP) of interest identified in Unit II., through the
Marietta Echeverria, Registration Division (RD) (7505T), main telephone number: (202) 566-1030, email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
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EPA is announcing receipt of pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2), and 40 CFR 180.7(b); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.
Pursuant to 40 CFR 180.7(f), summaries of the petitions that are the subject of this document, prepared by the petitioners, are included in dockets EPA has created for these rulemakings. The dockets for these petitions are available at
As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petitions so that the public has an opportunity to comment on these requests for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petitions may be obtained through the petition summaries referenced in this unit.
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21 U.S.C. 346a.
Coast Guard, Department of Homeland Security (DHS).
Notice of proposed rulemaking.
In accordance with the statutory provisions enacted by the Great Lakes Pilotage Act of 1960, the Coast Guard is proposing new base pilotage rates for the 2023 shipping season. The Coast Guard estimates that this proposed rule would result in an approximately 14-percent increase in operating costs compared to the 2022 season. Additionally, in accordance with the requirement to conduct a full ratemaking every 5 years, the Coast Guard is accepting comments on the Great Lakes pilotage ratemaking methodology. We are also accepting suggestions for changes to the staffing model, for consideration in a future ratemaking.
Comments and related material must be received by the Coast Guard on or before September 29, 2022.
You may submit comments identified by docket number USCG-2022-0370 using the Federal Decision Making Portal at
For information about this document, call or email Mr. Brian Rogers, Commandant, Office of Waterways and Ocean Policy—Great Lakes Pilotage Division (CG-WWM-2), Coast Guard; telephone 202-372-1535, email
The Coast Guard views 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.
In accordance with Title 46 of the United States Code (U.S.C.), Chapter 93,
In accordance with statutory and regulatory requirements, we have employed the ratemaking methodology we introduced in 2016. Our ratemaking methodology calculates the revenue needed for each pilotage association (operating expenses, compensation for the number of pilots, and anticipated inflation), and then divides that amount by the expected demand for pilotage services over the course of the coming year, to produce an hourly rate. This is a 10-step methodology to calculate rates. The 10-step methodology is explained in section VI of this preamble.
In this notice of proposed rulemaking (NPRM), we are proposing a full ratemaking, setting new pilotage rates for 2023 based on the 10-step ratemaking methodology, and accepting comments on the methodology. We conducted the last full ratemaking 5 years ago, in 2018. Per title 46 of the Code of Federal Regulations (CFR), § 404.100(a), in this NPRM, the Coast Guard's Director of the Great Lakes Pilotage (“the Director”) proposes to establish base pilotage rates by a full ratemaking pursuant to §§ 404.101 through 404.110. Base rates would be set to meet the goals of promoting safe, efficient, and reliable pilotage service on the Great Lakes, by generating sufficient revenue for each pilotage association to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide appropriate funds to use for improvements. We use a 10-year average when calculating traffic to smooth out variations in traffic caused by global economic conditions, such as those caused by the COVID-19 pandemic. The Coast Guard estimates that this proposed rule would result in $4,535,400 in additional costs.
Based on the ratemaking model discussed in this NPRM, we are proposing the rates shown in table 1.
This proposed rule would affect 55 U.S. Great Lakes pilots, 7 apprentice pilots, 3 pilot associations, and the owners and operators of an average of 285 oceangoing vessels that transit the Great Lakes annually. This proposed rule is not economically significant under Executive Order 12866 and would not affect the Coast Guard's budget or increase Federal spending. The estimated overall annual regulatory economic impact of this rate change would be a net increase of $4,535,400 in estimated payments made by shippers during the 2023 shipping season. This NPRM establishes the 2023 yearly compensation for pilots on the Great Lakes at $422,336 per pilot (a $23,070 increase, or 5.78 percent, over their 2022 compensation). Because the Coast Guard must review, and, if necessary, adjust rates each year, we analyze these as single-year costs and do not annualize them over 10 years. Section X of this preamble provides the regulatory impact analyses of this proposed rule.
The legal basis of this rulemaking is 46 U.S.C. Chapter 93,
The purpose of this rule is to issue new pilotage rates for the 2023 shipping season. The Coast Guard believes that the new rates will continue to promote our goal, as outlined in 46 CFR 404.1, of promoting safe, efficient, and reliable pilotage service in the Great Lakes by generating for each pilotage association sufficient revenue to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide appropriate funds to use for improvements.
Pursuant to 46 U.S.C. 9303, the Coast Guard, in conjunction with the Canadian Great Lakes Pilotage Authority (GLPA), regulates shipping practices and rates on the Great Lakes. Under Coast Guard regulations, all vessels engaged in foreign trade (often referred to as “salties”) are required to engage United States or Canadian pilots during their transit through the regulated waters.
The U.S. waters of the Great Lakes and the St. Lawrence Seaway are divided into three pilotage districts. Pilotage in each district is provided by an association certified by the Director to operate a pilotage pool. The Saint Lawrence Seaway Pilotage Association (SLSPA) provides pilotage services in District One, which includes all U.S. waters of the St. Lawrence River and Lake Ontario. The Lakes Pilots Association (LPA) provides pilotage services in District Two, which includes all U.S. waters of Lake Erie, the Detroit River, Lake St. Clair, and the St. Clair River. Finally, the Western Great Lakes Pilots Association (WGLPA) provides pilotage services in District Three, which includes all U.S. waters of the St. Marys River; Sault Ste. Marie Locks; and Lakes Huron, Michigan, and Superior.
Each pilotage district is further divided into “designated” and “undesignated” areas, depicted in table 2 below. Designated areas, classified as such by Presidential Proclamation, are waters in which pilots must direct the navigation of vessels at all times.
Each pilot
Over the past several years, the Coast Guard has adjusted the Great Lakes pilotage ratemaking methodology per our authority in 46 U.S.C. 9303(f) to conduct annual reviews of base pilotage rates and adjust such base rates in each intervening year in consideration of the public interest and the costs of providing the services. The current methodology was finalized in the Great Lakes Pilotage Rates—2022 Annual Review and Revisions to Methodology final rule (87 FR 18488, March 30, 2022). We summarize the current and proposed methodology in the section below.
As stated above, the ratemaking methodology, outlined in 46 CFR 404.101 through 404.110, consists of 10 steps that are designed to account for the revenues needed and total traffic expected in each district. The result is an hourly rate, determined separately for each of the areas administered by the Coast Guard.
In Step 1, “Recognize previous operating expenses,” (§ 404.101) the Director reviews audited operating expenses from each of the three pilotage associations. Operating expenses include all allowable expenses minus wages and benefits. This number forms the baseline amount that each association is budgeted. Because of the time delay between when the association submits raw numbers and the Coast Guard receives audited numbers, this number is 3 years behind the projected year of expenses. Therefore, in calculating the 2023 rates in this proposal, we begin with the audited expenses from the 2020 shipping season.
While each pilotage association operates in an entire district (including both designated and undesignated areas), the Coast Guard determines costs by area. With regard to operating expenses, we allocate certain operating expenses to designated areas and certain operating expenses to undesignated areas. In some cases, we can allocate the costs based on where they are actually accrued. For example, we can allocate the costs for insurance for apprentice pilots who operate in undesignated areas only. In other situations, such as general legal expenses, expenses are distributed between designated and undesignated waters on a
In Step 2, “Project operating expenses, adjusting for inflation or deflation,” (§ 404.102) the Director develops the 2023 projected operating expenses. To do this, we apply inflation adjustors for 3 years to the operating expense baseline received in Step 1. The inflation factors are from the Bureau of Labor Statistics' (BLS) Consumer Price Index (CPI) for the Midwest Region, or, if not available, the Federal Open Market Committee (FOMC) median economic projections for Personal Consumption Expenditures (PCE) inflation. This step produces the total operating expenses for each area and district.
In Step 3, “Estimate number of registered pilots and apprentice pilots,” (§ 404.103) the Director calculates how many registered and apprentice pilots, including apprentice pilots with limited registration, are needed for each district. To do this, we employ a “staffing model,” described in § 401.220, paragraphs (a)(1) through (3), to estimate how many pilots would be needed to handle shipping during the beginning and close of the season. This number is helpful in providing guidance to the Director in approving an appropriate number of pilots.
For the purpose of the ratemaking calculation, we determine the number of pilots provided by the pilotage associations (see § 404.103) and use that figure to determine how many pilots need to be compensated via the pilotage fees collected.
In the first part of Step 4, “Determine target pilot compensation benchmark and apprentice pilot wage benchmark,” (§ 404.104) the Director determines the revenue needed for pilot compensation in each area and district and calculates
In the second part of Step 4, set forth in § 404.104(c), the Director determines the total compensation figure for each district. To do this, the Director multiplies the compensation benchmark by the number of pilots for each area and district (from Step 3), producing a figure for total pilot compensation.
In Step 5, “Project working capital fund,” (§ 404.105) the Director calculates a value that is added to pay for needed capital improvements and other non-recurring expenses, such as technology investments and infrastructure maintenance. This value is calculated by adding the total operating expenses (derived in Step 2) to the total pilot compensation and total target apprentice pilot wage (derived in Step 4) and multiplying that figure by the preceding year's average annual rate of return for new issues of high-grade corporate securities. This figure constitutes the “working capital fund” for each area and district.
In Step 6, “Project needed revenue,” (§ 404.106) the Director simply adds up the totals produced by the preceding steps. The projected operating expense for each area and district (from Step 2) is added to the total pilot compensation, including apprentice pilot wage benchmarks, (from Step 4) and the working capital fund contribution (from Step 5). The total figure, calculated separately for each area and district, is the “needed revenue.”
In Step 7, “Calculate initial base rates,” (§ 404.107) the Director calculates an hourly pilotage rate to cover the needed revenue as calculated in Step 6. This step consists of first calculating the 10-year hours of traffic average for each area. Next, we divide the revenue needed in each area (calculated in Step 6) by the 10-year hours of traffic average to produce an initial base rate.
An additional element, the “weighting factor,” is required under § 401.400. Pursuant to that section, ships pay a multiple of the “base rate” as calculated in Step 7 by a number ranging from 1.0 (for the smallest ships, or “Class I” vessels) to 1.45 (for the largest ships, or “Class IV” vessels). As this significantly increases the revenue collected, we need to account for the added revenue produced by the weighting factors to ensure that shippers are not overpaying for pilotage services. We do this in the next step.
In Step 8, “Calculate average weighting factors by Area,” (§ 404.108) the Director calculates how much extra revenue, as a percentage of total revenue, has historically been produced by the weighting factors in each area. We do this by using a historical average of the applied weighting factors for each year since 2014 (the first year the current weighting factors were applied).
In Step 9, “Calculate revised base rates,” (§ 404.109) the Director modifies the base rates by accounting for the extra revenue generated by the weighting factors. We do this by dividing the initial pilotage rate for each area (from Step 7) by the corresponding average weighting factor (from Step 8), to produce a revised rate.
In Step 10, “Review and finalize rates,” (§ 404.110) often referred to informally as “Director's discretion,” the Director reviews the revised base rates (from Step 9) to ensure that they meet the goals set forth in 46 U.S.C. 9303(f) and 46 CFR 404.1(a), which include promoting efficient, safe, and reliable pilotage service on the Great Lakes; generating sufficient revenue for each pilotage association to reimburse necessary and reasonable operating expenses; compensating trained and rested pilots fairly; and providing appropriate revenue for improvements.
After the base rates are set, § 401.401 permits the Coast Guard to apply surcharges. We are not proposing to use any surcharges in this ratemaking. In previous ratemakings where apprentice pilot wages were not built into the rate, the Coast Guard used surcharges to cover applicant pilot compensation in those years to help with applicant recruitment. In this ratemaking, we include the applicant trainee compensation in the district's operating expenses used in step 1 of the ratemaking. Consistent with the 2021 and 2022 rulemakings, we continue to believe that the pilot associations are now able to plan for the costs associated with hiring applicant pilots to fill pilot vacancies without relying on the Coast Guard to impose surcharges to help with recruiting.
The Coast Guard is proposing to use the existing ratemaking methodology for establishing the base rates in this full ratemaking. The Coast Guard is not proposing any methodological or other policy changes to the ratemaking within this NPRM. However, we are accepting comments on the entire ratemaking methodology and staffing model as part of our full ratemaking year.
According to 46 U.S.C. 9303(f), and restated in § 404.100(a), the Coast Guard must establish base rates by a full ratemaking at least once every 5 years. We have determined that the current base rate and methodology still adequately adheres to the Coast Guard's goals of safety through rate and compensation stability, while promoting recruitment and retention of qualified U.S. registered pilots. The Coast Guard has made several changes to the ratemaking over the last several ratemakings in consideration of the public interest and costs of providing services. The recent changes and their impacts are summarized as follows.
In the 2017 ratemaking (82 FR 41466, August 31, 2017), we modified the ratemaking methodology to account for the additional revenue produced by the application of weighting factors (discussed in detail in Steps 7 through 9 for each district, in section IX of this preamble). In the 2018 ratemaking (83 FR 26162, June 5, 2018), we adopted a new approach in the methodology for the compensation benchmark, based upon United States mariners rather than Canadian working pilots. In the 2020 ratemaking (85 FR 20088, April 9, 2020), we revised the methodology to accurately capture all costs and revenues associated with Great Lakes pilotage requirements and produce an hourly rate that adequately and accurately compensates pilots and covers expenses. The 2021 ratemaking (86 FR 14184, March 12, 2021) changed the inflation calculation in Step 4, § 404.104(b) for interim ratemakings, so that the previous year's target compensation value is first adjusted by actual inflation value using the Employment Cost Index (ECI). That change ensures that the target pilot compensation reimbursed to the association remains current with inflation and competitive with industry pay increases. The 2022 ratemaking (87 FR 18488, March 30, 2022) implemented an apprentice pilot wage benchmark in Steps 3 and 4 to provide predictability and stability to associations training apprentice pilots. The 2022 final rule also codified rounding up the staffing model's final number to ensure the ratemaking does not undercount the pilot need presented by the staffing model and association circumstances.
These refinements to the methodology continue to promote safe, efficient, and reliable pilotage service on the Great Lakes, and allows each pilotage association to generate sufficient revenue to cover its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and realize an appropriate revenue to use for improvements. While the Coast Guard is not proposing changes at this time, we welcome public comments and suggestions on the methodology.
The Coast Guard is requesting input on the staffing model due to the diversification of traffic and increased demand for pilotage services, for consideration in a future rulemaking. The annual Great Lakes Pilotage Advisory Committee (GLPAC) meeting of September 1, 2021, produced a recommendation for the Coast Guard to review the staffing model. A copy of the GLPAC September 1, 2021, meeting transcript is available in the docket, where indicated under the Public Participation and Request for Comments portion of the preamble (section I). The recommendation is on page 53 of the transcript. We are interested in the public's suggestions on what changes may improve the staffing model to accurately capture staffing demand. We would consider the comments and determine any changes to propose in a future ratemaking.
The Coast Guard is proposing to set the target pilot compensation benchmark in this ratemaking at the target compensation for the ratemaking year 2022, adjusted for inflation. In a full ratemaking year, per 46 CFR 404.104(a), the Director determines a base individual target pilot compensation using a compensation benchmark in consideration of relevant currently available non-proprietary information. The Director may make necessary and reasonable adjustments to the benchmark if circumstances require. The compensation benchmark would be used in Step 4 of the existing methodology. In the following interim year ratemakings, the base target pilot compensation would be inflated annually in accordance with § 404.104(b). We discuss how we arrived at this proposed compensation benchmark next.
Prior to 2016, the Coast Guard based the compensation benchmark on data provided by the American Maritime Officers Union (AMOU) regarding its contract for first mates on the Great Lakes. However, in 2016 the AMOU elected to no longer provide this data to the Coast Guard. In the 2016 ratemaking (81 FR 11908, March 7, 2016), we used average compensation for a Canadian pilot plus a 10-percent adjustment. The shipping industry challenged the compensation benchmark, and the court found that the Coast Guard did not adequately support the 10-percent addition to the Canadian GLPA compensation benchmark.
In the 2020 interim year ratemaking final rule, the Coast Guard established its most recent pilot compensation benchmark. Given the lack of access to AMOU data, we did not rely on the AMOU aggregated wage and benefit information as the basis for the compensation benchmark, and instead adopted the 2019 target pilot compensation (with inflation) as our compensation benchmark going forward. We stated in the 2020 final rule that no other United States or Canadian pilot compensation data was appropriate to use as a benchmark at that time.
Based on our experience over the past three ratemakings (2020-2022), the Director continues to believe that the level of target pilot compensation for those years provided an appropriate level of compensation for U.S. Registered pilots. According to § 401.101(a), the Director may make necessary and reasonable adjustments to the benchmark based on current information. However, current circumstances do not indicate that an adjustment, other than for inflation, is necessary. The Director bases this decision on the fact that there is no indication that registered pilots are resigning due to their compensation or that this compensation benchmark is causing shortfalls in achieving reliable pilotage. We also do not believe that the pilot compensation benchmark is too high relative to the expertise required to perform the job. The compensation would continue to be adjusted annually in accordance with published inflation rates, which would ensure the compensation remains competitive and current for upcoming years.
Therefore, the Coast Guard proposes to not seek alternative benchmarks for target compensation at this time and, instead, to simply adjust the amount of target pilot compensation for inflation as our target compensation benchmark for 2023, as shown in Step 4. This target compensation benchmark approach has advanced and will continue to advance the Coast Guard's goals of safety through rate and compensation stability while also promoting recruitment and retention of qualified U.S. pilots.
The proposed compensation benchmark for 2023 is $399,266 per registered pilot, and $143,736 per apprentice pilot, using the 2022 compensation as a benchmark. We then follow the procedure outlined in paragraph (b) of § 404.104, which adjusts the existing compensation benchmark for inflation. We are using a two-step process to adjust target pilot compensation for inflation. First, we adjust the 2022 target compensation benchmark of $399,266 by 3.4 percent for an adjusted value of $412,841. This first adjustment accounts for the difference in actual first quarter 2022 ECI inflation, which is 5.6 percent, and the 2022 PCE estimate of 2.2 percent.
In this NPRM, based on the proposed policy changes described in the previous section, we are proposing new pilotage rates for 2023. We propose to conduct the 2023 ratemaking as a full ratemaking, as we last did in 2018 (83 FR 26162). Thus, the Coast Guard proposes to adjust the compensation benchmark following the full ratemaking year procedures under § 404.100(a) rather than the procedures for an interim ratemaking year in § 404.100(b).
This section discusses the proposed rate changes using the ratemaking steps provided in 46 CFR part 404. We will detail all 10 steps of the ratemaking procedure for each of the 3 districts to show how we arrive at the proposed new rates.
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2020 expenses and revenues.
Adjustments have been made by the auditors and are explained in the auditor's reports, which are available in the docket for this rulemaking, where indicated under the Public Participation and Request for Comments portion of the preamble.
In the 2020 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who would be called apprentices (applicant pilots) under the definition of “Apprentice pilot” introduced in the 2022 final rule. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2020, which includes both applicant and apprentice pilots. We use “apprentice” to distinguish apprentice pilot wages and describe the impacts of the ratemaking going forward.
We continue to include applicant salaries as an allowable expense in the 2023 ratemaking, as it is based on 2020 operating expenses, when salaries were still an allowable expense. The apprentice salaries paid in the years 2020 and 2021 have not been reimbursed in the ratemaking as of publication of this proposed rule. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which uses operating expenses from 2021, where the wages for apprentice pilots were still authorized as operating expenses. Beginning with the 2025 ratemaking, apprentice pilot salaries will no longer be included as a 2022 operating expense, because apprentice pilot wages would have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Beginning in 2025, the applicant salaries' operating expenses for 2022 will consist of only applicant trainees (those who are not yet apprentice pilots).
Having identified the recognized 2020 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period. We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2021 inflation rate.
In accordance with the text in § 404.103, we estimate the number of fully registered pilots in each district. We determine the number of fully registered pilots based on data provided by the SLSPA. Using these numbers, we estimate that there will be 18 registered pilots in 2023 in District One. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be two apprentice pilots in 2023 in District One. Based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 5. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total pilot compensation for each area. Because we are proposing a full ratemaking this year, we propose to follow the procedure outlined in paragraph (a) of § 404.104, which requires us to develop a benchmark after considering the most relevant currently available non-proprietary information. In accordance with the discussion in Section VII of this preamble, the proposed compensation benchmark for 2023 uses the 2022 compensation of $399,266 per registered pilot as a base, then adjusts for inflation following the procedure outlined in paragraph (b) of § 404.104. The proposed target pilot compensation for 2023 is $422,336 per pilot. The proposed apprentice pilot wage benchmark is 36 percent of the target pilot compensation, or $152,041 ($422,336 × 0.36).
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the staffing model in § 401.220(a). The staffing model suggests that the number of pilots needed is 18 pilots for District One, which is less than or equal to 18, the number of registered pilots provided by the pilot association. In accordance with § 404.104(c), we use the revised target individual compensation level to derive the total pilot compensation by multiplying the individual target compensation by the estimated number of registered pilots for District One, as shown in table 6. We estimate that the number of apprentice pilots with limited registration needed will be two for District One in the 2023 season. The total target wages for apprentices are allocated with 60 percent for the designated area, and 40 percent for the undesignated area, in accordance with the allocation for operating expenses.
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total target apprentice pilot wage for each area. Next, we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.7033 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), total target apprentice pilot wage, (from Step 4) and the working capital fund contribution (from Step 5). We show these calculations in table 8.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District One, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from the Great Lakes Pilotage Management System (GLPMS). We pull the data from the system filtering by district, year, job status (we only include closed jobs), and flagging code (we only include U.S. jobs). Because we calculate separate figures for designated and undesignated waters, there are two parts for each calculation. We show these values in table 9.
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. We present the calculations for District One in table 10.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 11 and 12.
In this step, we revise the base rates so that the total cost of pilotage will be equal to the revenue needed after considering the impact of the weighting factors. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 13.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the proposed rates incorporate appropriate compensation for pilots to handle heavy traffic periods and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the proposed rates would cover operating expenses and infrastructure costs, including average traffic and weighting factions. Based on the financial information submitted by the pilots, the Director is not proposing any alterations to the rates in this step. We propose to modify § 401.405(a)(1) and (2) to reflect the final rates shown in table 14.
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2020 expenses and revenues.
Adjustments have been made by the auditors and are explained in the auditor's reports, which are available in the docket for this rulemaking, where indicated under the Public Participation and Request for Comments portion of the preamble.
In the 2020 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who would be called apprentices (applicant pilots) under the definition introduced by the 2022 final rule. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2020, which includes both applicant and apprentice pilots. We use “apprentice” to distinguish apprentice pilot wages and describe the impacts of the ratemaking going forward.
We continue to include applicant salaries as an allowable expense in the 2023 ratemaking, as it is based on 2020 operating expenses, when salaries were still an allowable expense. The apprentice salaries paid in the years 2020 and 2021 have not been reimbursed in the ratemaking as of publication of this proposed rule. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which uses operating expenses from 2021 where the wages for apprentice pilots were still authorized as operating expenses. Beginning with the 2025 ratemaking, apprentice pilot salaries would no longer be included as a 2022 operating expense, because apprentice
Having identified the recognized 2020 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period. We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2021 inflation rate.
In accordance with the text in § 404.103, we estimate the number of fully registered pilots in each district. We determine the number of fully registered pilots based on data provided by the LPA. Using these numbers, we estimate that there will be 16 registered pilots in 2023 in District Two. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be two apprentice pilots in 2023 in District Two. Based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 17. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total pilot compensation for each area. Because we are proposing a full ratemaking this year, we propose to follow the procedure outlined in paragraph (a) of § 404.104, which requires us to develop a benchmark after considering the most relevant currently available non-proprietary information. In accordance with the discussion in Section VII of this preamble, the proposed compensation benchmark for 2023 uses the 2022 compensation of $399,266 per registered pilot as a base, then adjusts for inflation following the procedure outlined in paragraph (b) of § 404.104. The proposed target pilot compensation for 2023 is $422,336 per pilot. The proposed apprentice pilot wage benchmark is 36 percent of the target pilot compensation, or $152,041 ($422,336 × 0.36).
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the staffing model in § 401.220(a). The staffing model suggests that the number of pilots needed is 15 pilots for District Two, which is less than or equal to 15, the number of registered pilots provided by the pilot association. In accordance with § 404.104(c), we use the revised target individual compensation level to derive the total pilot compensation by multiplying the individual target compensation by the estimated number of registered pilots for District Two, as shown in table 18. We estimate that the number of apprentice pilots with limited registration needed will be two for District Two in the 2023 season. The total target wages for apprentices are allocated with 60 percent for the designated area and 40 percent for the undesignated area, in accordance with the allocation for operating expenses.
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total target apprentice pilot wage for each area. Then we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.7033 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), total target apprentice pilot wage, (from Step 4) and the working capital fund contribution (from Step 5). We show these calculations in table 20.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District Two, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from SeaPro. We pull the data from the system filtering by district, year, job status (we only include processed jobs), and flagging code (we only include U.S. jobs). Because we calculate separate figures for designated and undesignated waters, there are two parts for each calculation. We show these values in table 21.
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. We present the calculations for District Two in table 22.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 23 and 24.
In this step, we revise the base rates so that the total cost of pilotage will be equal to the revenue needed after considering the impact of the weighting factors. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 25.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the proposed rates incorporate appropriate compensation for pilots to handle heavy traffic periods, and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the proposed rates would cover operating expenses and infrastructure costs, and takes average traffic and weighting factors into consideration. Based on the financial information submitted by the pilots, the Director is not proposing any alterations to the rates in this step. We propose to modify § 401.405(a)(3) and (4) to reflect the final rates shown in table 26.
Step 1 in our ratemaking methodology requires that the Coast Guard review and recognize the previous year's operating expenses (§ 404.101). To do so, we begin by reviewing the independent accountant's financial reports for each association's 2020 expenses and revenues.
Adjustments have been made by the auditors and are explained in the auditor's reports, which are available in the docket for this rulemaking, where indicated under the Public Participation and Request for Comments portion of the preamble.
In the 2020 expenses used as the basis for this rulemaking, districts used the term “applicant” to describe applicant trainees and persons who would be called apprentices (applicant pilots) under the definition introduced by the 2022 final rule. Therefore, when describing past expenses, we use the term “applicant” to match what was reported from 2020, which includes both applicant and apprentice pilots. We use “apprentice” to distinguish apprentice pilot wages and describe the impacts of the ratemaking going forward.
We continue to include applicant salaries as an allowable expense in the 2023 ratemaking, as it is based on 2020 operating expenses, when salaries were still an allowable expense. The apprentice salaries paid in the years 2020 and 2021 have not been reimbursed in the ratemaking as of publication of this proposed rule. Applicant salaries (including applicant trainees and apprentice pilots) will continue to be an allowable operating expense through the 2024 ratemaking, which uses operating expenses from 2021 where the wages for apprentice pilots were still authorized as operating expenses. Beginning with the 2025 ratemaking, apprentice pilot salaries would no longer be included as a 2022 operating expense, because apprentice pilot wages would have already been factored into the ratemaking Steps 3 and 4 in calculation of the 2022 rates. Beginning in 2025, the applicant salaries' operating expenses for 2022 will consist of only applicant trainees (those who are not yet apprentice pilots).
Having identified the recognized 2020 operating expenses in Step 1, the next step is to estimate the current year's operating expenses by adjusting those expenses for inflation over the 3-year period. We calculate inflation using the BLS data from the CPI for the Midwest Region of the United States for the 2021 inflation rate.
In accordance with the text in § 404.103, we estimate the number of registered pilots in each district. We determine the number of registered pilots based on data provided by the WGLPA. Using these numbers, we estimate that there will be 22 registered pilots in 2023 in District Three. We determine the number of apprentice pilots based on input from the district on anticipated retirements and staffing needs. Using these numbers, we estimate that there will be three apprentice pilots in 2023 in District Three. Furthermore, based on the seasonal staffing model discussed in the 2017 ratemaking (see 82 FR 41466), we assign a certain number of pilots to designated waters and a certain number to undesignated waters, as shown in table 29. These numbers are used to determine the amount of revenue needed in their respective areas.
In this step, we determine the total pilot compensation for each area. Because we are proposing a full ratemaking this year, we propose to follow the procedure outlined in paragraph (a) of § 404.104, which requires us to develop a benchmark after considering the most relevant currently available non-proprietary information. In accordance with the discussion in Section VII above, the proposed compensation benchmark for 2023 uses the 2022 compensation of $399,266 per registered pilot as a base, then adjusts for inflation following the procedure outlined in paragraph (b) of § 404.104. The proposed target pilot compensation for 2023 is $422,336 per pilot. The proposed apprentice pilot wage benchmark is 36 percent of the target pilot compensation, or $152,041 ($422,336 × 0.36).
Next, we certify that the number of pilots estimated for 2022 is less than or equal to the number permitted under the staffing model in § 401.220(a). The staffing model suggests that the number of pilots needed is 22 pilots for District Three, which is less than or equal to 22, the number of registered pilots provided by the pilot association. In accordance with § 404.104(c), we use the revised target individual compensation level to derive the total pilot compensation by multiplying the individual target compensation by the estimated number of registered pilots for District Three, as shown in table 30. We estimate that the number of apprentice pilots with limited registration needed will be three for District Three in the 2023 season. The total target wages for apprentices are allocated with 21 percent for the designated area, and 79 percent (52 percent + 27 percent) for the undesignated areas, in accordance with the allocation for operating expenses.
Next, we calculate the working capital fund revenues needed for each area. First, we add the figures for projected operating expenses, total pilot compensation, and total target apprentice pilot wage for each area. Then we find the preceding year's average annual rate of return for new issues of high-grade corporate securities. Using Moody's data, the number is 2.7033 percent.
In this step, we add all the expenses accrued to derive the total revenue needed for each area. These expenses include the projected operating expenses (from Step 2), the total pilot compensation (from Step 4), and the working capital fund contribution (from Step 5). The calculations are shown in table 32.
Having determined the revenue needed for each area in the previous six steps, to develop an hourly rate, we divide that number by the expected number of hours of traffic. Step 7 is a two-part process. In the first part, we calculate the 10-year average of traffic in District Three, using the total time on task or pilot bridge hours. To calculate the time on task for each district, the Coast Guard uses billing data from SeaPro. We pull the data from the system filtering by district, year, job status (we only include processed jobs), and flagging code (we only include U.S. jobs). Because we calculate separate figures for designated and undesignated waters, there are two parts for each calculation. We show these values in table 33.
Next, we derive the initial hourly rate by dividing the revenue needed by the average number of hours for each area. This produces an initial rate, which is necessary to produce the revenue needed for each area, assuming the amount of traffic is as expected. The calculations for District Three are set forth in table 34.
In this step, we calculate the average weighting factor for each designated and undesignated area. We collect the weighting factors, set forth in 46 CFR 401.400, for each vessel trip. Using this database, we calculate the average weighting factor for each area using the data from each vessel transit from 2014 onward, as shown in tables 35 and 36.
In this step, we revise the base rates so that the total cost of pilotage will be equal to the revenue needed after considering the impact of the weighting factors. To do this, we divide the initial base rates calculated in Step 7 by the average weighting factors calculated in Step 8, as shown in table 37.
In this step, the Director reviews the rates set forth by the staffing model and ensures that they meet the goal of ensuring safe, efficient, and reliable pilotage. To establish this, the Director considers whether the proposed rates incorporate appropriate compensation for pilots to handle heavy traffic periods and whether there is a sufficient number of pilots to handle those heavy traffic periods. The Director also considers whether the proposed rates would cover operating expenses and infrastructure costs and takes average traffic and weighting factors into consideration. Based on this information, the Director is not proposing any alterations to the rates in this step. We propose to modify § 401.405(a)(5) and (6) to reflect the final rates shown in table 38.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Management and Budget (OMB) has not designated this proposed rule a significant regulatory action under section 3(f) of Executive Order 12866. A regulatory analysis follows.
The purpose of this proposed rule is to establish new base pilotage rates, as 46 U.S.C. 9303(f) requires that rates be established or reviewed and adjusted each year. The statute also requires that base rates be established by a full ratemaking at least once every 5 years, and, in years when base rates are not established, they must be reviewed and, if necessary, adjusted. The last full ratemaking was concluded in June of 2018.
The Coast Guard is required to review and adjust pilotage rates on the Great Lakes annually. See section IV of this preamble for detailed discussions of the legal basis and purpose for this rulemaking. Based on our annual review for this rulemaking, we are adjusting the pilotage rates for the 2023 shipping season to generate sufficient revenues for each district to reimburse its necessary and reasonable operating expenses, fairly compensate trained and rested pilots, and provide an appropriate working capital fund to use for improvements. The result would be an increase in rates for all areas in District One, District Two, and District Three. These changes would also lead to a net increase in the cost of service to shippers. The change in per unit cost to each individual shipper will be dependent on their area of operation.
A detailed discussion of our economic impact analysis follows.
This proposed rule affects United States Great Lakes pilots and apprentice pilots, the 3 pilot associations, and the owners and operators of 285 oceangoing vessels that transit the Great Lakes annually on average from 2019 to 2021. We estimate that there will be 55 registered pilots and 7 apprentice pilots during the 2023 shipping season. The shippers affected by these rate changes are those owners and operators of domestic vessels operating “on register” (engaged in foreign trade) and owners and operators of non-Canadian foreign vessels on routes within the Great Lakes system. These owners and operators must have pilots or pilotage service as required by 46 U.S.C. 9302. There is no minimum tonnage limit or exemption for these vessels. The statute applies only to commercial vessels and not to recreational vessels. United States-flagged vessels not operating on register, and Canadian “lakers,” which account for most commercial shipping on the Great Lakes, are not required by 46 U.S.C. 9302 to have pilots. However, these United States- and Canadian-flagged lakers may voluntarily choose to engage a Great Lakes registered pilot. Vessels that are U.S.-flagged may opt to have a pilot for varying reasons, such as unfamiliarity with designated waters and ports, or for insurance purposes.
The Coast Guard used billing information from the years 2019 through
Numerous factors affect vessel traffic, which varies from year to year. Therefore, rather than using the total number of vessels over the time period, we took an average of the unique vessels using pilotage services from the years 2019 through 2021 as the best representation of vessels estimated to be affected by the rates in this rulemaking. From 2019 through 2021, an average of 285 vessels used pilotage services annually.
The rate changes resulting from this adjustment to the rates would result in a net increase in the cost of service to shippers. However, the change in per unit cost to each individual shipper will be dependent on their area of operation.
The Coast Guard estimates the effect of the rate changes on shippers by comparing the total projected revenues needed to cover costs in 2022 with the total projected revenues to cover costs in 2023. We set pilotage rates so pilot associations receive enough revenue to cover their necessary and reasonable expenses. Shippers pay these rates when they engage a pilot as required by 46 U.S.C. 9302. Therefore, the aggregate payments of shippers to pilot associations are equal to the projected necessary revenues for pilot associations. The revenues each year represent the total costs that shippers must pay for pilotage services. The change in revenue from the previous year is the additional cost to shippers discussed in this proposed rule.
The impacts of the rate changes on shippers are estimated from the district pilotage projected revenues (shown in tables 8, 20, and 32 of this preamble). The Coast Guard estimates that for the 2023 shipping season, the projected revenue needed for all three districts is $37,022,395.
To estimate the change in cost to shippers from this proposed rule, the Coast Guard compared the 2023 total projected revenues to the 2022 projected revenues. Because we review and prescribe rates for Great Lakes pilotage annually, the effects are estimated as a single-year cost rather than annualized over a 10-year period. In the 2022 rulemaking, we estimated the total projected revenue needed for 2022 as $32,486,994.
The resulting difference between the projected revenue in 2022 and the projected revenue in 2023 is the annual change in payments from shippers to pilots as a result of the rate changes proposed by this rulemaking. The effect of the rate changes to shippers would vary by area and district. After taking into account the change in pilotage rates, the proposed rate changes would lead to affected shippers operating in District One experiencing an increase in payments of $692,930 over the previous year. District Two and District Three would experience an increase in payments of $1,230,868 and $2,611,602, respectively, when compared with 2022. The overall adjustment in payments would be an increase in payments by shippers of $4,535,400 across all three districts (a 14-percent increase when compared with 2022). Again, because the Coast Guard reviews and sets rates for Great Lakes pilotage annually, we estimate the impacts as single-year costs rather than annualizing them over a 10-year period.
Table 41 shows the difference in revenue by revenue-component from 2022 to 2023 and presents each revenue-component as a percentage of the total revenue needed. In both 2022 and 2023, the largest revenue-component was pilotage compensation (63 percent of total revenue needed in 2022, and 63 percent of total revenue needed in 2023), followed by operating expenses (31 percent of total revenue needed in
As stated above, we estimate that there would be a total increase in revenue needed by the pilot associations of $4,535,400. This represents an increase in revenue needed for target pilot compensation of $2,865,914, a decrease in revenue needed for total apprentice pilot wage benchmark of ($229,335), an increase in the revenue needed for adjusted operating expenses of $1,709,475, and an increase in the revenue needed for the working capital fund of $189,346.
The change in revenue needed for pilot compensation, $2,865,914, is due to three factors: (1) The changes to adjust 2022 pilotage compensation to account for the difference between actual ECI inflation
The target compensation is $422,336 per pilot in 2023, compared to $399,266 in 2022. The proposed changes to modify the 2022 pilot compensation to account for the difference between predicted and actual inflation would increase the 2022 target compensation value by 3.4 percent. As shown in table 42, this inflation adjustment increases total compensation by $13,575 per pilot, and the total revenue needed by $746,627 when accounting for all 55 pilots.
Similarly, table 43 shows the impact of the difference between predicted and actual inflation on the target apprentice pilot compensation benchmark. The inflation adjustment increases the compensation benchmark by $4,887 per apprentice pilot, and the total revenue needed by $34,209 when accounting for all seven apprentice pilots.
As noted earlier, the Coast Guard predicts that 55 pilots would be needed for the 2023 season. This would be an increase of four pilots compared to the 2022 season. The difference reflects an increase of one pilot in District Two and three pilots in District Three. Table 44 shows the increase of $1,635,044 in revenue needed solely for pilot compensation. As noted previously, to avoid double counting this value excludes the change in revenue resulting from the change to adjust 2022 pilotage compensation to account for the difference between actual and predicted inflation.
Similarly, the Coast Guard predicts that seven apprentice pilots would be needed for the 2023 season. This would be a decrease of two apprentices from the 2022 season. The difference reflects a decrease of two apprentices for District Three. Table 45 shows the decrease of ($294,308) in revenue needed solely for apprentice pilot compensation. As noted previously, to avoid double counting this value excludes the change in revenue resulting from the change to adjust 2022 apprentice pilotage compensation to account for the difference between actual and predicted inflation.
Another increase, $522,223, would be the result of increasing compensation for the 55 pilots to account for future inflation of 2.3 percent in 2023. This would increase total compensation by $9,495 per pilot.
Similarly, an increase of $23,927 would be the result of increasing compensation for the 7 apprentice pilots to account for future inflation of 2.3 percent in 2023. This would increase total compensation by $3,418 per apprentice pilot, as shown in table 47.
Table 48 presents the percentage change in revenue by area and revenue-component, excluding surcharges, as they are applied at the district level.
This proposed rule allows the Coast Guard to meet the requirements in 46 U.S.C. 9303 to review the rates for pilotage services on the Great Lakes. The rate changes promote safe, efficient, and reliable pilotage service on the Great Lakes by (1) ensuring that rates cover an association's operating expenses, (2) providing fair pilot compensation, adequate training, and sufficient rest periods for pilots, and (3) ensuring pilot associations produce enough revenue to fund future improvements. The rate changes also help recruit and retain pilots, which ensure a sufficient number of pilots to meet peak shipping demand, helping to reduce delays caused by pilot shortages.
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
For the rulemaking, the Coast Guard reviewed recent company size and ownership data for the vessels identified in the GLPMS, and we reviewed business revenue and size data provided by publicly available sources such as ReferenceUSA.
Of the 15 U.S. entities, 8 exceed the SBA's small business standards for small entities. To estimate the potential impact on the seven small entities, the Coast Guard used their 2021 invoice data to estimate their pilotage costs in 2023. Of the seven small entities, from 2019 to 2021, only five used pilotage services in 2021. We increased their 2021 costs to account for the changes in pilotage rates resulting from this proposed rule and the Great Lakes Pilotage Rates—2021 Annual Review and Revisions to Methodology final rule (86 FR 14184). We estimated the change in cost to these entities resulting from this rulemaking by subtracting their estimated 2022 pilotage costs from their estimated 2023 pilotage costs and found the average costs to small firms will be approximately $25,575, with a range of $1,580 to $95,381. We then compared the estimated change in pilotage costs between 2022 and 2023 with each firm's annual revenue. In all but one case, the impact of the change in estimated pilotage expenses were below 1 percent of revenues. For one entity, the change in impact would be 3.7 percent of revenues, as this entity reports revenue approximately ten times less than the next largest small entity.
In addition to the owners and operators discussed previously, three U.S. entities that receive revenue from pilotage services will be affected by this rulemaking. These are the three pilot associations that provide and manage pilotage services within the Great Lakes districts. These associations are designated with the same NAICS code as Business Associations
Finally, the Coast Guard did not find any small not-for-profit organizations that are independently owned and operated and are not dominant in their fields that will be impacted by this proposed rule. We also did not find any small governmental jurisdictions with populations of fewer than 50,000 people that will be impacted by this rulemaking. Based on this analysis, we conclude this rulemaking would not affect a substantial number of small entities, nor have a significant economic impact on any of the affected entities.
Therefore, 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. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
This proposed rule would call for no new or revised 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 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 Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.
Congress directed the Coast Guard to establish “rates and charges for pilotage services.” See 46 U.S.C. 9303(f). This regulation is issued pursuant to that statute and is preemptive of State law as specified in 46 U.S.C. 9306. Under 46 U.S.C. 9306, a “State or political subdivision of a State may not regulate or impose any requirement on pilotage on the Great Lakes.” As a result, States or local governments are expressly prohibited from regulating within this category. Therefore, this rulemaking is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this proposed rule would have implications for federalism under Executive Order 13132, please call or email the person listed in the
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 million (adjusted for inflation) or more in any one year. Although this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, (Civil Justice Reform), to minimize litigation, eliminate ambiguity, and reduce burden.
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.
We have analyzed this proposed rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
We have analyzed this proposed rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a
This proposed rule involves setting or adjusting the pilotage rates for the 2023 shipping season to account for changes in district operating expenses, changes in the number of pilots, and anticipated inflation. In addition, the Coast Guard is accepting comments on the entire Great Lakes pilotage ratemaking methodology, in accordance with the requirement to conduct a full ratemaking every 5 years. We are also accepting suggestions for changes to the staffing model, for consideration in a future rulemaking. All of these changes are consistent with the Coast Guard's maritime safety missions. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
Administrative practice and procedure, Great Lakes, Navigation (water), Penalties, Reporting and recordkeeping requirements, Seamen.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 46 CFR part 401 as follows:
46 U.S.C. 2103, 2104(a), 6101, 7701, 8105, 9303, 9304; DHS Delegation 00170.1, Revision No. 01.2, paragraphs (II)(92)(a), (d), (e), (f).
(a) * * *
(1) The St. Lawrence River is $867;
(2) Lake Ontario is $581;
(3) Lake Erie is $683;
(4) The navigable waters from Southeast Shoal to Port Huron, MI is $606;
(5) Lakes Huron, Michigan, and Superior is $407; and
(6) The St. Marys River is $818.
Animal and Plant Health Inspection Service, USDA.
Notice of availability.
We are advising the public that the Animal and Plant Health Inspection Service has prepared an environmental assessment concerning authorization to ship for the purpose of field testing, and then to field test, an unlicensed Bursal Disease-Infectious Laryngotracheitis-Marek's Disease Vaccine, Serotype 3, Live Marek's Disease Vector. The environmental assessment, which is based on a risk analysis prepared to assess the risks associated with the field testing of this vaccine, examines the potential effects that field testing this veterinary vaccine could have on the quality of the human environment. Based on the risk analysis, we have reached a preliminary determination that field testing this veterinary vaccine will not have a significant impact on the quality of the human environment, and that an environmental impact statement need not be prepared. We are making the environmental assessment and risk analysis available for public review and comment. We intend to authorize shipment of this vaccine for field testing following the close of the comment period for this notice unless new substantial issues bearing on the effects of this action are brought to our attention. We also intend to issue a U.S. Veterinary Biological Product license for this vaccine, provided the field test data support the conclusions of the environmental assessment and the issuance of a finding of no significant impact and the product meets all other requirements for licensing.
We will consider all comments that we receive on or before September 29, 2022.
You may submit comments by either of the following methods:
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Supporting documents and any comments we receive on this docket may be viewed at
For information regarding the environmental assessment or the risk analysis, or to request a copy of the environmental assessment or risk analysis with confidential business information removed, contact Dr. Barbara J. Sheppard, Senior Staff Veterinary Medical Officer, Center for Veterinary Biologics, Policy, Evaluation, and Licensing, VS, APHIS, 1920 Dayton Avenue, Ames, IA; phone: (515) 337-6100; email:
The alternative contact is Dr. Matthew Erdman, Science Advisor, Diagnostics and Biologics, Associate Deputy Administrator's Office, VS, APHIS, 1920 Dayton Avenue, P.O. Box 844, Ames, IA 50010; phone: (515) 337-6100; email:
Under the Virus-Serum-Toxin Act (21 U.S.C. 151
To determine whether to authorize shipment and grant approval for the field testing of the unlicensed product referenced in this notice, APHIS conducted a risk analysis to assess the potential effects of this product on the safety of animals, public health, and the environment. Based on the risk analysis, APHIS has prepared an environmental assessment (EA) concerning the field testing of the following unlicensed veterinary biological product:
The vaccine has been shown to be effective for the vaccination of 18- to 19-day-old embryonated chicken eggs (E18) or healthy 1-day-old chickens against Marek's disease, infectious bursal disease, and infectious laryngotracheitis. This vaccine consists of a live Marek's Disease, Serotype 3, Turkey Herpesvirus (HVT) vector expressing proteins encoded by genes from an Infectious Bursal Disease Virus (IBDV) and an Infectious Laryngotracheitis Virus (ILTV). In the proposed study, the vaccine will be administered
APHIS' review and analysis of the potential environmental impacts associated with the proposed field tests are documented in detail in an EA titled “Environmental Assessment for Field Testing of a Bursal Disease—Infectious Laryngotracheitis-Marek's Disease Vaccine, Serotype 3, Live Marek's Disease Vector.” We are making this EA and the risk analysis with confidential business information removed available to the public for review and comment. We will consider all comments that we receive on or before the date listed under the
The EA and the risk analysis may be viewed on the
The EA has been prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
Unless substantial issues with adverse environmental impacts are raised in response to this notice, APHIS intends to issue a finding of no significant impact (FONSI) based on the EA and authorize shipment of the above product for the initiation of field tests following the close of the comment period for this notice.
Because the issues raised by field testing and by issuance of a license are identical, APHIS has concluded that the EA that is generated for field testing would also be applicable to the proposed licensing action. Provided that the field test data support the conclusions of the original EA and the issuance of a FONSI, APHIS does not intend to issue a separate EA and FONSI to support the issuance of the product license, and APHIS would determine that an environmental impact statement need not be prepared. APHIS intends to issue a veterinary biological product license for this vaccine following completion of the field test provided no adverse impacts on the human environment are identified and provided the product meets all other requirements for licensing.
Farm Service Agency, USDA.
Notice and request for applications.
The Farm Service Agency (FSA) is announcing the opportunity for interested eligible entities, including cooperatives, credit unions, and nonprofit organizations certified to operate as a lender, to apply for loans under the Heirs' Property Relending Program (HPRP). Approved entities will serve as intermediaries who will relend HPRP funds for projects that assist heirs with undivided ownership interests to resolve ownership and succession issues on farmland that has multiple owners (commonly referred to as “Heirs' property”).
The application period will open on August 30, 2022 and will continue indefinitely until a closing date is announced in a notice in the
Raenata Walker; telephone: (202) 720-4671; email:
HPRP was authorized by section 5104 of the Agricultural Improvement Act of 2018 (2018 Farm Bill, Pub. L. 115-334), codified in 7 U.S.C. 1936c. HPRP provides loans to eligible entities to relend with the purpose of assisting heirs with undivided ownership interests to resolve ownership and succession issues on farms that are owned in common by multiple heirs. HPRP loan funds may be used to purchase and consolidate fractional interests held by other heirs in jointly owned property, and to pay for costs and fees associated with developing and implementing a succession plan (for example, closing costs, appraisals, title searches, surveys, mediation, and legal services). During the initial application period announced in the HPRP final rule published in the
Eligible lenders can obtain applications and submission information at FSA's
FSA will process and approve applications in accordance with the regulations in 7 CFR part 769 subpart B.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family or parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA Target Center at (202) 720-2600 or 844-433-2774 (toll-free nationwide). Additionally, program information may be made available in languages other than English.
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-
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USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the West Virginia Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold project planning meetings via Zoom on the following dates and times: Thursday, September 1 at 1:00 p.m. ET; Thursday, October 6 at 1:00 p.m. ET; Thursday, November 3 at 1:00 p.m. ET; Thursday, December 1 at 1:00 p.m. ET. The purpose of these meetings is to continue discussing the Committee's project on disparate school discipline policies and practices in West Virginia public schools. Each business meeting will last for approximately one hour.
Thursday, September 1 at 1:00 p.m. ET; Thursday, October 6 at 1:00 p.m. ET; Thursday, November 3 at 1:00 p.m. ET; Thursday, December 1 at 1:00 p.m. ET.
Ivy Davis, DFO, at
Committee meetings are available to the public through the conference link above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at (800) 877-8339 and providing the Service with the conference details found through registering at the web link above. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Commission on Civil Rights.
Announcement of planning meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a meeting of the Maryland Advisory Committee to the Commission will convene by Zoom virtual platform and conference call on Monday, September 19, 2022, at 12:00 p.m. ET, to discuss post-report promotional activity for the Committee's recent publication on water affordability in the state.
Monday, September 19, 2022, at 12:00 p.m. ET.
Melissa Wojnaroski at
The meeting is available to the public through the web link above. If joining only via phone, callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Individuals who are deaf, deafblind and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with conference details found through registering at the web link above. To request additional accommodations, please email
Members of the public are invited to make statements during the open comment period of the meeting or submit written comments. The comments must be received in the regional office approximately 30 days after each scheduled meeting. Written comments may be emailed to Melissa Wojnaroski at
Records and documents discussed during the meeting will be available for public viewing as they become available at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of the determinations by the U.S. Department of Commerce (Commerce) and the U.S. International Trade Commission (ITC) that revocation of the antidumping duty (AD) order on large residential washers (washers) from the People's Republic of China (China) would likely lead to a continuation or recurrence of dumping and material injury to an industry in the United States, Commerce is publishing a notice of continuation of the AD order on washers from China.
Applicable August 30, 2022.
Brian Smith or Max Goldman, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-0224, respectively.
On February 6, 2017, Commerce published in the
On August 22, 2022, the ITC published its determination, that revocation of the
The products covered by this
For purposes of this
Also covered are certain parts used in large residential washers, namely: (1) All cabinets, or portions thereof, designed for use in large residential washers; (2) all assembled tubs
Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” segment meeting either of the following two definitions:
(1) (a) it contains payment system electronics;
(2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a vertical rotational axis; (2) are top loading;
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading;
Also excluded from the scope are automatic clothes washing machines that meet all of the following conditions: (1) Have a horizontal rotational axis; (2) are front loading; and (3) have cabinet width (measured from its widest point) of more than 28.5 inches (72.39 cm). The products subject to this
As a result of the determinations by Commerce and the ITC that revocation of the
This notice also serves as the only reminder to parties subject to APO of their responsibility concerning the return/destruction or conversion to judicial protective order of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO which may be subject to sanctions.
This five-year (sunset) review and notice are in accordance with sections 751(c) and 777(i) the Act, and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request for a changed circumstances review (CCR), the U.S. Department of Commerce (Commerce) is initiating a CCR of the antidumping duty (AD) and countervailing duty (CVD) orders on certain cold-rolled steel flat products (cold-rolled steel) and certain corrosion-resistant steel products (CORE) from the Republic of Korea (Korea). Additionally, Commerce preliminarily determines that KG Steel Corporation (
Applicable August 30, 2022.
Natasia Harrison, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1240.
On July 25, 2016, Commerce published the AD and CVD orders on CORE from Korea in the
On September 20, 2016, Commerce published the AD and CVD orders on cold-rolled steel from Korea in the
On May 27, 2022, KG Steel informed Commerce that KG Dongbu Steel had officially changed its Korean name from KG Dongbu Steel Co., Ltd. to KG Steel Corporation for purposes of its operations and sales in Korea, while at the same time maintaining its English name of KG Dongbu Steel Co., Ltd. for purposes of its sales in overseas markets.
The merchandise covered by the
Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216, Commerce will conduct a CCR of an order upon receipt of information or a review request from an interested party for a review of an order which shows changed circumstances sufficient to warrant a review of the order.
The information submitted by KG Steel demonstrates that its request is based solely on a change in the Korean name of the company from “KG Dongbu Steel Co., Ltd.” to “KG Steel Corporation,” approved March 24, 2022.
Commerce is permitted by 19 CFR 351.221(c)(3)(ii) to combine the notice of initiation of a CCR and the preliminary results if Commerce concludes that expedited action is warranted. In this instance, because the record contains information necessary to make a preliminary finding, we find that expedited action is warranted and have combined the notice of initiation and the preliminary results.
Accordingly, pursuant to section 751(b) of the Act, we have conducted a successor-in-interest analysis in response to KG Steel's request. In making a successor-in-interest determination in an AD CCR, Commerce examines several factors, including, but not limited to, changes in the following: (1) management and ownership; (2) production facilities; (3) supplier relationships; and (4) customer base.
In its CCR request, KG Steel provided evidence demonstrating that KG Steel's operations are not materially dissimilar from those of KG Dongbu Steel. Based on the record, we preliminarily determine that KG Steel is the successor-in-interest to KG Dongbu Steel, as the change in the business' Korean name was not accompanied by significant changes to its management and ownership, production, facilities, supplier relationships, or customer base. There is also no evidence of significant changes between KG Dongbu Steel and the successor-in-interest company KG Steel's operations, ownership, or corporate or legal structure during the relevant period that could have impacted the successor-in-interest company's subsidy levels.
For a complete discussion of the information that KG Steel provided, including business proprietary information, and the complete successor-in-interest analysis,
Should our final results remain unchanged from these preliminary results, we will instruct U.S. Customs and Border Protection to assign entries of subject merchandise exported by KG Steel the AD and CVD cash deposit rates applicable to KG Dongbu Steel. Commerce will issue its final results of the review in accordance with the time limits set forth in 19 CFR 351.216(e).
In accordance with 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs not later than seven days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), any interested party may request a hearing within 14 days of publication of this notice.
All submissions are to be filed electronically using ACCESS, and must also be served on interested parties. An electronically filed document must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time on the day it is due.
Consistent with 19 CFR 351.216(e), we will issue the final results of this changed circumstances review no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary finding.
This initiation and preliminary results notice is published in accordance with sections 751(b)(1) and 777(i)(1) of the Act, and 19 CFR 351.216(b), 351.221(b) and 351.221(c)(3).
Notice of application for an amended Export Trade Certificate of Review for Northwest Fruit Exporters (NFE), application no. 84-33A12.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (OTEA) of the International Trade Administration, has received an application for an amended Export Trade Certificate of Review (Certificate). This notice summarizes the proposed application and seeks public comments on whether the Certificate should be issued.
Joseph Flynn, Director, OTEA, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4001-21) (the Act) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325. OTEA is issuing this notice pursuant to 15 CFR 325.6(a), which requires the Secretary of Commerce to publish a summary of the
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.
Written comments should be sent to
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 84-33A12.” A summary of the application follows.
1. Add the following companies as new Members of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)) for the following Export Product: fresh sweet cherries:
2. Change the names of the following Members:
3. Change the location of the following Member:
4. Change the Export Product coverage for seven Members:
The Department of Commerce will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. We invite the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously requested via the
The Commercial Service (CS) offers a variety of services to enable clients to begin exporting/importing or to expand existing exporting/importing efforts. Clients may learn about our services from business related entities such as the National Association of Manufacturers, Federal Express, State Economic Development offices, the internet or word of mouth. The CS provides a standard set of services to assist clients with identifying potential overseas partners, establishing meeting programs with appropriate overseas business contacts, and providing due diligence reports on potential overseas business partners. The CS also provides other export-related services considered to be of a “customized nature” because they do not fit into the standard set of CS export services but are driven by unique business needs of individual clients.
The dissemination of international market information and potential business opportunities for U.S. exporters are critical components of the Commercial Service's export assistance programs and services. U.S. companies conveniently access and indicate their interest in these services by completing the appropriate forms via ITA and CS U.S. Export Assistance Center websites.
The CS works closely with clients to educate them about the exporting/importing process and to help prepare them for exporting/importing. When a client is ready to begin the exporting/importing process our field staff provide counseling to assist in the development of an exporting strategy. We provide fee-based, export-related services designed to help client export/import. The type of export-related service that is proposed to a client depends upon a client's business goals and where they are in the export/import process. Some clients are at the beginning of the export process and require assistance with identifying potential distributors, whereas other clients may be ready to sign a contract with a potential distributor and require due diligence assistance.
Before the CS can provide export-related services to clients, such as assistance with identifying potential partners or providing due diligence, specific information is required to determine the client's business objectives and needs. For example, before we can provide a service to identify potential business partners, we need to know whether the client would like a potential partner to have specific technical qualifications, coverage in a specific market, English or foreign language ability or warehousing requirements. This information collection is designed to elicit such data so that appropriate services can be proposed and conducted to most effectively meet the client's exporting goals. Without these forms the CS is unable to provide services when requested by clients.
The forms ask U.S. exporters standard questions about their company details, demographic information, export experience, information about the products or services they wish to export and exporting goals. A few questions are tailored to a specific program type and will vary slightly with each program. CS staff use this information to gain an understanding of client's needs and objectives so that they can provide appropriate and effective export assistance tailored to an exporter's particular requirements.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On July 13, 2022, the U.S. Department of Commerce (Commerce) published the notice of initiation and preliminary results of a changed circumstances review (CCR) of the antidumping duty (AD) orders on non-oriented electrical steel, certain corrosion-resistant steel products, certain cold-rolled steel flat products, certain hot-rolled steel flat products, certain carbon and alloy steel cut-to-length plate, and carbon and alloy steel wire rod from the Republic of Korea (Korea). For these final results, Commerce continues to find that POSCO, following a corporate organizational change in March 2022 (hereinafter, POSCO(II)), is the successor-in-interest to the pre-reorganization POSCO entity (hereinafter, POSCO(I)). Furthermore, POSCO(II) is entitled to POSCO(I)'s AD cash deposit rates with respect to entries of subject merchandise in each of the above-referenced proceedings.
Applicable August 30, 2022.
Christopher Maciuba, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0413.
On July 13, 2022, Commerce published the
The merchandise covered by the orders is non-oriented electrical steel, certain corrosion-resistant steel products, certain cold-rolled steel flat products, certain hot-rolled steel flat products, certain carbon and alloy steel cut-to-length plate, and carbon and alloy steel wire rod from Korea. For a complete description of the scope of each of the respective orders,
For the reasons stated in the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
We are issuing this determination and publishing these final results and notice in accordance with sections 751(b)(1) and 777(i)(1) and (2) of the Tariff Act of 1930, as amended, and 19 CFR 351.216 and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these expedited sunset reviews, the U.S. Department of Commerce (Commerce) finds that revocation of the antidumping duty (AD) orders on finished carbon steel flanges (flanges) from India, Italy, and Spain would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Sunset Review” section of this notice.
Applicable August 30, 2022.
Harrison Tanchuck or Emily Bradshaw, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7421 and (202) 482-3896 respectively.
On May 2, 2022, Commerce published the notice of initiation of the first sunset reviews of the
Commerce received a substantive response from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).
On June 21, 2022, Commerce notified the U.S. International Trade Commission that it did not receive an adequate substantive response from respondent interested parties.
The products covered by the
All issues raised in these sunset reviews are addressed in the Issues and Decision Memorandum, including the likelihood of continuation or recurrence of dumping and the magnitude of the margins of dumping likely to prevail if the
Pursuant to sections 751(c)(1) and 752(b) of the Act, Commerce determines that revocation of the
This notice serves as the only reminder to parties subject to an APO of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing this notice in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) preliminarily finds that Cimtas Boru Imalatlari ve Ticaret, Ltd. Sti (Cimtas), the only company subject to review, had no shipments of subject merchandise during the period of review (POR), December 1, 2020, through November 30, 2021. In addition, we are rescinding this administrative review with respect to companies for which requests for review were timely withdrawn. Interested parties are invited to comment on these preliminary results.
Applicable August 30, 2022.
Christopher Hargett, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4161.
In December 2015, Commerce published in the
On March 4, 2022, Cimtas informed Commerce that it: (1) had not made any reviewable shipments or sales of the subject merchandise to the United States during POR; and (2) had no physical entries and/or no reviewable entries of subject merchandise to the United States during this period.
In April 2022, the domestic interested parties timely withdrew their requests for review with respect to 18 companies.
On May 16, 2022, domestic interested parties requested that Commerce conduct verification in this administrative review.
The products covered by the
The welded line pipe that is subject to the
Pursuant to 19 CFR 351.213(d)(1), Commerce “will rescind an administrative review . . . in whole or in part, if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” On April 20, 2022, the domestic interested parties timely withdrew their requests for an administrative review of the 18 companies listed in the appendix to this notice.
Based on CBP's response to Commerce's no-shipment inquiry
Pursuant to 19 CFR 351.307(b)(1)(v), Commerce “will verify factual information” relied upon in the final results of an administrative review if: (A) “{a} domestic interested party, not later than 100 days after the date of publication of the notice of initiation of review, submits a written request for verification; and (B) {Commerce} conducted no verification . . . during either of the two immediately preceding administrative reviews.”
Interested parties are invited to comment on these preliminary results and may submit case briefs or other written comments to Commerce no later than 30 days after the date of publication of this notice.
Interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, filed electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) within 30 days after the date of publication of this notice.
Parties are reminded that all briefs and hearing requests must be filed electronically using ACCESS by 5 p.m. eastern time on the established deadline. Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information, until further notice.
Commerce intends to issue the final results of this administrative review, including the results of its analysis of issues raised in any written briefs, not later than 120 days after the date of publication of this notice in the
Commerce will instruct CBP to liquidate any suspended entries for the 18 companies listed in the appendix to this notice at the rate in effect at the time of entry. Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this recission notice in the
For Cimtas, Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of the final results of this review in the
If the final results of review continue to find that Cimtas had no shipments during the POR, there will be no change to the existing cash deposit requirements.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213(d).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS is issuing an IHA to Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass, by Level B harassment, marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey, including the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and along potential offshore export cable corridor (OECC) routes to landfall locations.
This authorization is effective from July 27, 2022 through July 26, 2023.
Carter Esch, Office of Protected Resources, NMFS, (301) 427-8401.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
On December 17, 2021, NMFS received a request from Vineyard Northeast for an IHA to take marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey, in the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and potential offshore export cable corridor (OECC) routes to landfall locations. We received a final, revised version of Vineyard Northeast's application on April 4, 2022, which we deemed adequate and complete on April 18, 2022. Vineyard Northeast's request is for take of 19 species (with 20 managed stocks) of marine mammals, by Level B harassment only. Neither Vineyard Northeast nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate. A notice of NMFS' proposal to issue an IHA to Vineyard Northeast was published in the
NMFS previously issued an IHA (85 FR 42357; July 14, 2020) and a renewal of that IHA (86 FR 38296; July 20, 2021) to Vineyard Wind, LLC (Vineyard Wind) for similar marine site characterization surveys. Vineyard Wind has split into several corporate entities which now include Vineyard Wind, Vineyard Wind 1, LLC (Vineyard Wind 1), and, most recently, Vineyard Northeast. NMFS issued an IHA for similar surveys to Vineyard Wind 1 on July 28, 2021 (86 FR 40469). Although the surveys analyzed in this IHA issued to Vineyard Northeast will occur in an area that overlaps the survey areas in the previous Vineyard Wind IHA and Renewal IHA, and Vineyard Wind 1 IHA (and potentially a renewal, if appropriate), NMFS issued this IHA to the separate corporate entity, Vineyard Northeast. The surveys described here will occur over a much broader geographic range than the surveys completed under the previous IHAs described above, extending to southern New Jersey and incorporating a lease area (OCS-A 0544) not yet surveyed by Vineyard Wind, Vineyard Wind 1, or Vineyard Northeast. In addition, the track lines to be covered during Vineyard Northeast's surveys are distinct from those previously surveyed by Vineyard Wind and Vineyard Wind 1.
Vineyard Wind complied with all the requirements (
Vineyard Northeast plans to conduct marine site characterization surveys using high-resolution geophysical (HRG) equipment in Federal offshore waters (including Lease Areas OCS-A 0522 and OCS-A 0544) and along potential OECCs in both Federal and State nearshore waters of Massachusetts, Rhode Island, Connecticut, New York, and New Jersey (see Figure 1 in the notice of the proposed IHA).
Vineyard Northeast plans to commence surveys in July 2022 and continue for 1 year. Based on 24-hour operations, HRG survey activities are expected to require 869 vessel days, with an estimated daily survey distance of 80 kilometers (km) per vessel (assuming 24-hour operations). Each day that a vessel surveys approximately 80 km within 24 hours will count as a single survey day,
A detailed description of Vineyard Northeast's planned surveys is provided in the
Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting).
The notice of the proposed IHA described, in detail, Vineyard Northeast's activities, the marine mammal species that may be affected by the activities, and the anticipated effects on marine mammals. In that notice, we requested public input on the request for authorization described therein, our analyses, the proposed authorization, and any other aspect of the notice of proposed IHA, and requested that interested persons submit relevant information, suggestions, and comments. This proposed notice was available for a 30-day public comment period.
NMFS received 1 non-substantive comment from a private citizen, and two substantive comment letters from environmental non-governmental organizations (eNGOs) (Oceana, Inc. and Clean Ocean Action (COA)). A summary of comments from Oceana and COA, and NMFS' responses, are provided below; the letters are available online at:
The notice of the proposed IHA published in the
While there would be additional documents submitted with a renewal request, for a qualifying renewal, these would be limited to documentation that NMFS would make available and use to verify that the activities are identical to those in the initial IHA, are nearly identical such that the changes would have either no effect on impacts to marine mammals or decrease those impacts, or are a subset of activities already analyzed and authorized but not completed under the initial IHA. NMFS would also need to confirm, among other things, that the activities would occur in the same location; involve the same species and stocks; provide for continuation of the same mitigation, monitoring, and reporting requirements; and that no new information has been received that would alter the prior analysis. The renewal request would also contain a preliminary monitoring report, in order to verify that effects from the activities do not indicate impacts of a scale or nature not previously analyzed. The additional 15-day public comment period provides the public an opportunity to review these few documents, provide any additional pertinent information and comment on whether they think the criteria for a renewal have been met. With the initial 30-day comment period on these same activities and the additional 15 days, the total comment period for a renewal is 45 days.
In addition to the IHA renewal process being consistent with all requirements under section 101(a)(5)(D), it is also consistent with Congress' intent for issuance of IHAs to the extent reflected in statements in the legislative history of the MMPA. Through the provision for renewals in the regulations, description of the process and express invitation to comment on specific potential renewals in the Request for Public Comments section of each proposed IHA, the description of the process on NMFS' website, further elaboration on the process through responses to comments such as these, posting of substantive documents on the agency's website, and provision of 30 or 45 days for public review and comment on all proposed initial IHAs and renewals respectively, NMFS has ensured that the public is “invited and encouraged to participate fully in the agency's decision-making process,” as Congress intended.
Recently (after publication of the notice of proposed IHA), NMFS updated its species web page to recognize the population estimate for NARWs is now below 350 animals (
NMFS further notes that Oceana seems to be conflating the phrase “best available science” with “the most recent science.” The MMPA specifies that the “best available data” must be used, which does not always mean the most recent. At this time, in consideration of all available data, NMFS considers the NARW abundance estimate of 368 from the 2021 SARs as the best available science and have appropriately used it in our analysis. The Pace (2021) results strengthened the case for a change in mean survival rates after 2010-2011, but did not significantly change other current estimates (population size, number of new animals, adult female survival) derived from the model. Furthermore, NMFS notes that the SARs are peer reviewed by other scientific review groups prior to being finalized and published and that the North Atlantic Right Whale Report Card (Pettis
Oceana expressed concern regarding shifting patterns in NARW occurrence and habitat usage, stating that NMFS was not appropriately considering relevant information on this topic. While this survey intersects migratory and foraging habitat for NARWs, including a newer year-round “core” NARW foraging habitat south of Martha's Vineyard and Nantucket (Oleson
Section 101(a)(5)(D) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals. 50 CFR 216.104(a)(1). Thus, the “specified activity” for which incidental take coverage is being sought under section 101(a)(5)(D) is generally defined and described by the applicant. Here, Vineyard Northeast was the applicant for the IHA, and we are responding to the specified activity as described in that application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing regulations, NMFS also indicated that (1) we would consider cumulative effects that are reasonably foreseeable when preparing a NEPA analysis, and (2) reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for ESA-listed species, as appropriate. Accordingly, NMFS has written Environmental Assessments (EA) that addressed cumulative impacts related to substantially similar activities, in similar locations,
For ESA-listed species, the cumulative effects of substantially similar activities in the same geographic region have been analyzed in the past under section 7 of the ESA when NMFS has engaged in formal intra-agency consultation, such as the 2013 programmatic Biological Opinion (BiOp) for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind Energy Areas (
There are several additional reasons why we do not agree that use of PAM is warranted for HRG surveys. While NMFS agrees that PAM can be an important tool for augmenting detection capabilities in certain circumstances, its utility in further reducing impact during HRG survey activities is limited. First, for this activity, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 178 m); this reflects the fact that, to start with, the source level is comparatively low and the intensity of any resulting impacts would be lower level and, further, it means that inasmuch as PAM will only detect a portion of any animals exposed within a zone, the overall probability of PAM detecting an animal in the harassment zone is low. Together these factors support the limited value of PAM for use in reducing take with smaller zones. PAM is only capable of detecting animals that are actively vocalizing, yet many marine mammal species vocalize infrequently or during certain activities, which means that only a subset of the animals within the range of the PAM would be detected (and potentially experience reduced impacts). Additionally, localization and range detection can be challenging under certain scenarios. For example, odontocetes are fast moving and often travel in large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of surveys authorized in this IHA are expected to be limited to low level behavioral harassment even in the absence of mitigation, the limited additional benefit anticipated by adding this detection method (especially for NARWs and other low frequency cetaceans, species for which PAM has limited efficacy), and the cost and impracticability of implementing a full-time PAM program, we have determined the current requirements for visual monitoring are sufficient to ensure the least practicable adverse impact on the affected species or stocks and their habitat. NMFS has previously provided discussions on why PAM isn't a required monitoring measure during HRG survey IHAs in past
Regarding monitoring for species that may be present yet go unobserved, NMFS recognizes that visual detection based mitigation approaches are not 100 percent effective. Animals are missed because they are underwater (availability bias) or because they are available to be seen, but are missed by observers (perception and detection biases) (
The potential for vessel strike by vessels not associated with site characterization survey vessels is separate from the aforementioned analysis of potential for vessel strike during Vineyard Northeast's specified survey activities, and outside the scope of analysis related to the authorization of take incidental to Vineyard Northeast's specified activity under the MMPA. For more information about cumulative impacts, please see NMFS' response to comment 4.
Regarding the claim that it is not clear if the amount of take requested for common dolphins is attributed to short-beaked or long-beaked common dolphins, or some combination of the two, please note that the application and
Regarding the lack of baseline information cited by COA, with specific concern regarding harbor seals, NMFS points towards two sources of information for marine mammal baseline information: the Ocean/Wind Power Ecological Baseline Studies, January 2008-December 2009 completed by the New Jersey Department of Environmental Protection in July 2010 (
NMFS has determined that no new information has become available, nor do the commenters present additional information, that would change our determinations since the publication of the proposed notice.
Since publication of the notice of proposed IHA, NMFS has acknowledged that the population estimate of NARWs is now under 350 animals (
In addition, we made corrections to take values for several species in Table 5 of this notice to ensure alignment with the analogous values in Table 1 of the draft IHA. Finally, we added condition 5(b) to the IHA, which states that on a case-by-case basis, non-independent observers may be approved by NMFS for limited, specific duties (
Sections 3 and 4 of Vineyard Northeast's application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. NMFS fully considered all of this information and, rather than replicating it here, we refer the reader to these descriptions in the application. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 2 lists all species or stocks for which take is authorized for this action, and summarizes information related to the population or stock, including regulatory status under the MMPA and Endangered Species Act (ESA) and potential biological removal (PBR), where known. For taxonomy, NMFS follows Committee on Taxonomy (2022). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR, and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 2 are the most recent available at the time of publication and are available in the Draft 2021 SARs (Hayes
Table 2 includes 15 species (with 16 managed stocks) that temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. Vineyard Northeast is also requesting take of four species that are considered rare in the survey area (
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information.
The effects of underwater noise from the deployed acoustic sources have the potential to result in behavioral harassment of marine mammals in the vicinity of the study area. The
This section provides the process by which the estimated takes were devised and the number of incidental takes NMFS authorized in the IHA, which informs both NMFS' consideration of “small numbers” and the negligible impact determinations.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to noise from certain HRG acoustic sources. Based primarily on the characteristics of the signals produced by the acoustic sources planned for use, Level A harassment is neither anticipated (even absent mitigation), nor authorized. Consideration of the anticipated effectiveness of the mitigation measures (
Generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Vineyard Northeast's proposed activity includes the use of impulsive (
NMFS has developed a user-friendly methodology for estimating the extent of the Level B harassment isopleths associated with relevant HRG survey equipment (NMFS, 2020). This methodology incorporates frequency and directionality to refine estimated ensonified zones. For acoustic sources that operate with different beamwidths, the maximum beamwidth was used, and the lowest frequency of the source was used when calculating the frequency-dependent absorption coefficient (Table 1).
Results of modeling using the methodology described above indicated that, of the HRG survey equipment planned for use by Vineyard Northeast that has the potential to result in Level B harassment of marine mammals, the Applied Acoustics AA251 Boomer would produce the largest distance to the Level B harassment isopleth (178 m). Estimated distances to the Level B harassment isopleth for all source types evaluated here, including the boomer, are provided in Table 4. Although Vineyard Northeast does not expect to use the AA251 Boomer source on all planned survey days, it proposes to assume, for purposes of analysis, that the boomer sources would be used on all survey days and across all hours within a given survey day. This is a conservative approach, as the actual sources used on individual survey days, or during a portion of a survey day, may produce smaller distances to the Level B harassment isopleth.
In this section, we provide the information about presence, density, or group dynamics of marine mammals that will inform the take calculations.
Habitat-based density models produced by the Duke University Marine Geospatial Ecology Laboratory (Roberts
Density estimates for all marine mammal species within the survey area were obtained using the most recent model results by Roberts
Here we describe how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. The maximum distance (
The ZOI is a representation of the maximum extent of the ensonified area around a HRG sound source over a 24-hr period. The ZOI for each piece of equipment operating at or below 180 kHz was calculated per the following formula:
Where r is the linear distance from the source to the harassment isopleth.
The largest daily ZOI (28.6 km
Potential Level B density-based harassment exposures are estimated by multiplying the average annual density of each species within the survey area by the daily ZOI. That product is then multiplied by the number of planned survey days (869), and the product is rounded to the nearest whole number. These results are shown in Table 5.
For other less common species, the predicted densities from Roberts
The larger of the two estimates from the approaches described above, density-based exposure estimates or mean group size, was selected as the amount of authorized take as shown in Table 5. However, based on observational data collected during prior HRG surveys in this area, the density of common dolphins predicted by the Roberts
The estimated monthly density of seals provided in Roberts
Bottlenose dolphins encountered in most of the survey area would belong to the Western North Atlantic Offshore stock. However, approximately 21 percent of the survey area is located south of New York Harbor where members of the North Atlantic Northern Migratory Coastal stock may be present. Therefore, NMFS assumes that 21 percent (151 individuals) of the authorized bottlenose dolphin take would be from the North Atlantic Northern Migratory Coastal stock while the remaining 79 percent (569 individuals) would likely be from the Western North Atlantic Offshore stock.
Similarly, the distributions of short- and long-finned pilot whales are described in Hayes
Species considered to be rare or not expected to occur in the survey area were not included in Vineyard Northeast's previous density-based exposure estimates because the densities would be too low to provide meaningful results. Nonetheless, species considered to be rare are occasionally encountered. For example, white-beaked dolphins were observed in both 2019 and 2020 during marine site characterization surveys in the survey area (Vineyard Wind 2019, 2020), with the sighting of white-beaked dolphins in 2019 consisting of 30 animals. Other rare species encountered in the survey area during previous surveys include the false killer whale in 2019 (five individuals) and 2021 (one individual) (Vineyard Wind 2019, 2021), and killer whale in 2022 (two individuals; data not yet submitted). Vineyard Northeast is requesting take of each of these three species, based on the largest number of individuals observed within 1 year (Table 5).
Finally, recent deployments of passive acoustic devices in the New York Bight yielded detections of blue whale vocalizations approximately 20 nautical miles (nm) (37 km) southeast of the entrance to New York Harbor during the months of January, February, and March (Muirhead
Table 5 provides the total amount of take authorized in the IHA.
In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned), and;
(2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.
The following mitigation measures must be implemented during Vineyard Northeast's planned marine site characterization surveys.
Marine mammal clearance zones (CZs) must be established around the HRG survey equipment:
• 500-m SZ for NARWs; and
• 100-m SZ for all other marine mammal species.
Vineyard Northeast must implement a 30-minute monitoring period of the CZs prior to initiation of ramp-up of HRG equipment. During this period, CZs will be monitored by PSOs, using the appropriate visual technology.
Where technically feasible (
Marine mammal shutdown zones (SZs) must established around the HRG survey equipment:
• 500-m SZ for NARWs; and
• 100-m SZ for all other marine mammal species.
The vessel operator must comply immediately with any call for shutdown by a PSO. Any disagreement between the PSO and vessel operator should be discussed only after shutdown has occurred. Subsequent restart of the survey equipment can be initiated if the animal has been observed exiting its respective SZ or the relevant time has elapsed without redetection (
The shutdown requirement is waived for pinnipeds and for small delphinids of the following genera:
If the acoustic source is shut down for reasons other than mitigation (
Vineyard Northeast must ensure that vessel operators and crew maintain a vigilant watch for marine mammals and slow down or stop their vessels to avoid striking these species. All personnel responsible for navigation and marine mammal observation duties will receive site-specific training on marine mammals sighting/reporting and vessel strike avoidance measures. Vessel strike avoidance measures include the following, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:
• Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A visual observer aboard the vessel must monitor a vessel strike avoidance zone based on the appropriate separation distance around the vessel (distances stated below). Visual observers monitoring the vessel strike avoidance zone may be third-party observers (
• Members of the monitoring team will consult NMFS North Atlantic right whale reporting system and Whale Alert at the start of every PSO shift, for situational awareness regarding the presence of NARWs throughout the survey area, and for the establishment of Slow Zones (including visual-detection-triggered dynamic management areas (DMAs) and acoustically-triggered slow zones) within or near the survey area.
• All survey vessels, regardless of size, must observe a 10-kn (2.1 m/s) speed restriction in specific areas designated by NMFS for the protection of NARW from vessel strikes, including SMAs and DMAs, when in effect;
• Vessel speeds must be reduced to 10 kn (5.1 m/s) or less when mother/calf pairs, pods, or large assemblages of cetaceans are observed near a vessel;
• All vessels must maintain a minimum separation distance of 500-m from NARWs and other ESA-listed species. If an ESA-listed species is sighted within the relevant separation distance, the vessel must steer a course away at 10 kn (5.1 m/s) or less until the 500-m separation distance has been established. If a whale is observed but cannot be confirmed as a species that is not ESA-listed, the vessel operator must assume that it is an ESA-listed species and take appropriate action.
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 100-m from all non-ESA listed whales,
• All vessels must, to the maximum extent practicable, attempt to maintain a minimum separation distance of 50-m from all other marine mammals, with an understanding that at times this may not be possible (
• When marine mammals are sighted while a vessel is underway, the vessel must take action as necessary to avoid violating the relevant separation distance (
Survey activities using HRG equipment operating at or below 180 kHz are prohibited from January 1 through May 15 within the NARW SMA in Cape Cod Bay.
Project-specific training will be conducted for all vessel crew prior to the start of a survey and during any changes in crew such that all survey personnel are fully aware and understand the mitigation, monitoring, and reporting requirements. Prior to implementation with vessel crews, the training program will be provided to NMFS for review and approval. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew member understands and will comply with the necessary requirements throughout the survey activities. In addition to the aforementioned measures, Kitty Hawk will abide by all marine mammal relevant conditions in the Greater Atlantic Regional Office's (GARFO) informal programmatic consultation, dated June 29, 2021 (revised September 2021), pursuant to section 7 of the ESA. These include the relevant best management practices of project design criteria (PDCs) 4, 5, and 7.
Based on our evaluation of the measures contained in the IHA, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical to both compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Visual monitoring will be performed by qualified, NMFS-approved PSOs, the resumes of whom will be provided to NMFS for review and approval prior to the start of survey activities. Vineyard Northeast must employ independent, dedicated, trained PSOs, meaning that the PSOs must (1) be employed by a third-party observer provider, (2) have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements (including brief alerts regarding maritime hazards), and (3) have successfully completed an approved PSO training course appropriate for their designated task. As described previously, on a case-by-case basis, non-independent observers may be approved by NMFS for limited, specific duties (
The PSOs will be responsible for monitoring the waters surrounding each survey vessel to the farthest extent permitted by sighting conditions, including shutdown zones, during all HRG survey operations. PSOs will visually monitor and identify marine mammals, including those approaching or entering the established shutdown zones during survey activities. It will be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals to the vessel operator as well as to communicate the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate.
During all HRG survey operations (
PSOs must be equipped with binoculars and have the ability to estimate distance and bearing to detect marine mammals, particularly in proximity to shutdown zones. Reticulated binoculars must also be available to PSOs for use as appropriate based on conditions and visibility to support the sighting and monitoring of marine mammals. During nighttime operations, night-vision goggles with thermal clip-ons and infrared technology would be used. Position data would be recorded using hand-held or vessel GPS units for each sighting.
During good conditions (
Data on all PSO observations would be recorded based on standard PSO collection requirements. This would include dates, times, and locations of survey operations; dates and times of observations, location and weather; details of marine mammal sightings (
Within 90 days after completion of survey activities or expiration of this IHA, whichever comes sooner, a final technical report will be provided to NMFS that fully documents the methods and monitoring protocols, summarizes the data recorded during monitoring, summarizes the number of marine mammals observed during survey activities (by species, when known), summarizes the mitigation actions taken during surveys (including what type of mitigation and the species and number of animals that prompted the mitigation action, when known), and provides an interpretation of the results and effectiveness of all mitigation and monitoring. A final report must be submitted within 30 days following resolution of any comments on the draft report. All draft and final marine mammal monitoring reports must be submitted to
• PSO names and affiliations;
• Dates of departures and returns to port with port name;
• Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
• Vessel location (latitude/longitude) when survey effort begins and ends; vessel location at beginning and end of visual PSO duty shifts;
• Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
• Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions change significantly), including wind speed and direction, Beaufort sea state, Beaufort wind force, swell height, weather conditions, cloud cover, sun glare, and overall visibility to the horizon;
• Factors that may be contributing to impaired observations during each PSO shift change or as needed as environmental conditions change (
• Survey activity information, such as type of survey equipment in operation, acoustic source power output while in operation, and any other notes of significance (
If a marine mammal is sighted, the following information should be recorded:
• Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
• PSO who sighted the animal;
• Time of sighting;
• Vessel location at time of sighting;
• Water depth;
• Direction of vessel's travel (compass direction);
• Direction of animal's travel relative to the vessel;
• Pace of the animal;
• Estimated distance to the animal and its heading relative to vessel at initial sighting;
• Identification of the animal (
• Estimated number of animals (high/low/best);
• Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);
• Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
• Detailed behavior observations (
• Animal's closest point of approach and/or closest distance from the center point of the acoustic source;
• Platform activity at time of sighting (
• Description of any actions implemented in response to the sighting (
If a NARW is observed at any time by PSOs or personnel on any survey vessels, during surveys or during vessel transit, Vineyard Northeast must immediately report sighting information to the NMFS North Atlantic Right Whale Sighting Advisory System (866) 755-6622. NARW sightings in any location may also be reported to the U.S. Coast Guard via channel 16.
In the event that Vineyard Northeast personnel discover an injured or dead marine mammal, Vineyard Northeast must report the incident as soon as feasible to the NMFS Office of Protected Resources (OPR) and the NMFS New England/Mid-Atlantic Stranding Network by phone (866-755-6622) and by email (
1. Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by any vessel involved in the activities covered by the IHA, Vineyard Northeast must report the incident to NMFS OPR and the NMFS Office of Protected Resources and the NMFS New England/Mid-Atlantic Stranding Network by phone (866-755-6622) and by email (
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the majority of our analysis applies to the species listed in Table 5, given that many of the anticipated effects of the survey to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of the authorized take on the population due to differences in population status, or impacts on habitat, they are included in a separate subsection. NMFS does not anticipate that mortality, serious injury, or injury
As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section above, non-auditory physical effects and vessel strike are not expected to occur. NMFS expects that all potential takes would be in the form of short-term Level B behavioral harassment in the form of temporary avoidance of the area or decreased foraging (if such activity was occurring), reactions that are considered to be of low severity and with no lasting biological consequences (
In addition to being temporary, the maximum harassment zone around a survey vessel is 178 m from use of the Applied Acoustics AA251 Boomer. When estimating Level B harassment take numbers, Vineyard Northeast made the conservative assumption that this maximum zone size applied to all 869 survey days when, in reality, the Applied Acoustics AA251 Boomer will not be used throughout the entire 24 hours of every survey day. The other acoustic sources with the potential to result in take of marine mammals are expected to produce harassment zones with even smaller radii (141 m, Edge Tech CHIRP 216; 4 m, GeoMarine Geo Spark 2000). The ensonified area surrounding each acoustic source is relatively small compared to the overall distribution of the animals in the area and their use of the habitat.
In addition, feeding behavior is not likely to be significantly impacted as prey species are mobile and are broadly distributed throughout the survey area; therefore, marine mammals that may be temporarily displaced during survey activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance and the availability of similar habitat and resources in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. There are no rookeries, mating or calving grounds known to be biologically important to marine mammals within the survey area.
The status of the NARW population is of heightened concern and, therefore, merits additional analysis. As described in the
The survey area partially overlaps with the migratory corridor BIA (Figure 2.5 in LaBrecque
The northernmost and northeastern portions of the survey area overlap with the Cape Cod Bay (January 1-May 15), Off Race Point (March 1-April 30), and Great South Channel (April 1-July 31) SMAs. There is also a partial overlap between the eastern edge of survey area and the western-most portion of the Great South Channel feeding BIA (April 1 to June 30) and a feeding BIA within and north of Cape Cod Bay (February 1 to April 30) (Figure 2.5 in LaBrecque
The slow survey speed (approximately 4 kn (2.1 m/s)) and required vessel strike avoidance measures will decrease the risk of ship strike such that no ship strike is expected to occur during Vineyard Northeast's survey activities. Additionally, although take by Level B harassment of NARWs has been authorized by NMFS, we anticipate a very low level of harassment, should it occur, because Vineyard Northeast is required to maintain a shutdown zone of 500 m if a NARW is observed. The authorized take accounts for any missed animals wherein the survey equipment is not shutdown immediately. Because shutdown would be called for immediately upon detection (if the whale is within 500 m), it is likely the exposure time would be very limited and received levels would not be much above the harassment threshold. Further, the 500-m shutdown zone for right whales is conservative, considering the distance to the Level B harassment isopleth for the most impactful acoustic source (
As noted previously, Level A harassment is not expected due to the characteristics of the signals produced by the acoustic sources planned for use; this finding is further enforced by the mitigation measures. NMFS does not anticipate NARW takes that would result from Vineyard Northeast's activities would impact annual rates of recruitment or survival. Thus, any takes that occur will not result in population level impacts.
There are several active UMEs occurring in the vicinity of Vineyard Northeast's survey area. Elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately half had evidence of human interaction (ship strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS) remains stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have occurred along the Atlantic coast from Maine through South Carolina, with highest
The required mitigation measures are expected to reduce the number and/or severity of the authorized takes for all species listed in Table 5, including those with active UMEs, to the level of least practicable adverse impact. In particular, ramp-up procedures would provide animals in the vicinity of the survey vessel the opportunity to move away from the sound source before HRG survey equipment reaches full energy, thus preventing them from being exposed to sound levels that have the potential to cause injury (Level A harassment) or more severe Level B harassment. No Level A harassment is anticipated, even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term behavioral harassment by way of temporary vacating of the area, or decreased foraging (if such activity was occurring)—reactions that (at the scale and intensity anticipated here) are considered to be of low severity, with no lasting biological consequences. Since both the sources and marine mammals are mobile, animals would only be exposed briefly to a small ensonified area that might result in take. Additionally, required mitigation measures would further reduce exposure to sound that could result in more severe behavioral harassment.
A small fin whale feeding BIA (March-October) located east of Montauk Point, New York (Figure 2.3 in LaBrecque
An extensive sei whale feeding BIA (May-November) stretching from the 25-m depth contour off central Maine and Massachusetts to the 200-m contour in central Gulf of Maine, including the northern shelf break of Georges Bank (see Figure 2.2 in LaBrecque
LaBrecque
A humpback whale feeding BIA (March-December; Figure 2.8 in LaBrecque
As previously discussed, impacts from the surveys are expected to be localized to the specific area of activity and only during periods of time where Vineyard Northeast's acoustic sources are active. While areas of biological importance to foraging fin whales, sei whales, minke whales, and humpback whales exist within the survey area, NMFS does not expect this specified activity to affect these areas or any species' ability to utilize prey resources within the BIAs, given the nature of the survey activity, and the combination of the mitigation and monitoring measures being required of Vineyard Northeast.
Several major haul-out sites exist for harbor seals within the survey area along the New Jersey coast (
In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality or serious injury is anticipated or authorized;
• No Level A harassment (PTS) is anticipated, even in the absence of mitigation measures, or authorized;
• Foraging success is not likely to be significantly impacted as effects on species that serve as prey species for marine mammals from the survey are expected to be minimal;
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the planned survey to avoid exposure to sounds from the activity;
• Take is anticipated to be by Level B behavioral harassment only, consisting of brief startling reactions and/or temporary avoidance of the survey area;
• While the survey area overlaps with a portion of the NARW migratory BIA, the survey activities will occur in such a comparatively small area that any avoidance of the survey area due to activities will not affect migration. The survey area also overlaps a foraging BIA that includes Cape Cod Bay; however, a seasonal restriction on survey activities (see below) will limit any survey impacts on NARW foraging in the Bay. In addition, the requirement to shut down at 500 m to minimize potential for Level B behavioral harassment will limit the effects of the action on migratory or feeding behavior of the species. Furthermore, NMFS has analyzed the potential for ship strike resulting from Vineyard Northeast's activity and has determined that, based on the extensive suite of required mitigation measures specific to vessel strike avoidance included in the IHA, the potential for vessel strike is so low as to be discountable;
• Due to the relatively small footprint of the survey activities in relation to the size of foraging BIAs for fin, sei, minke, and humpback whales, survey activities are not expected to affect foraging behavior of these species;
• As no injury or mortality is expected or authorized, and Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures, the authorized number of takes for North Atlantic right, humpback, and minke whales would not exacerbate or compound the effects of the ongoing UMEs in any way;
• A seasonal restriction on survey activities in Cape Cod Bay (January 1 through May 15), when NARW occurrence is highest in this ESA-designated critical foraging habitat and the Cape Cod Bay SMA is active, will minimize the likelihood that NARW foraging behavior would be affected by survey activities; and
• The mitigation measures, including visual monitoring and shutdowns, are expected to minimize the intensity of potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take the activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is less than one third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities. For this IHA, take of all species or stocks is below one third of the estimated stock abundance (
Based on the analysis contained herein of the proposed activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS is authorizing take, by Level B harassment only, of a NARWs, fin whales, sei whales, and a blue whale which are all species listed under the ESA. On June 29, 2021 (revised September 2021), GARFO completed an informal programmatic consultation on the effects of certain site assessment and site characterization activities to be carried out to support the siting of offshore wind energy development projects off the U.S. Atlantic coast. Part of the activities considered in the consultation are geophysical surveys such as those proposed by Vineyard Northeast and for which we are authorizing take. GARFO concluded site assessment surveys are not likely to adversely affect endangered species or adversely modify or destroy critical habitat. NMFS has determined issuance of the IHA is covered under the programmatic consultation; therefore, ESA consultation has been satisfied.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
As a result of these determinations, NMFS is issuing an IHA to Vineyard Northeast for the potential harassment of small numbers of 19 marine mammal species (with 20 managed stocks) incidental to conducting marine site characterization surveys offshore from Massachusetts to New Jersey, in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 and along OECC routes to landfall locations, provided the previously mentioned mitigation, monitoring, and reporting requirements are followed. The final IHA and supporting documents can be found at
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The MAFMC's Spiny Dogfish Monitoring Committee will meet via webinar to develop recommendations for 2023 Spiny Dogfish specifications.
The meeting will be held on Friday, September 16, 2022, from 9 a.m. to 11 a.m.
The meeting will be held via webinar. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Spiny Dogfish Monitoring Committee will meet to review annual specifications and management measures and make any appropriate recommendations for future Spiny Dogfish specifications.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The MAFMC's Spiny Dogfish Committee will meet via webinar to develop recommendations for 2023 Spiny Dogfish specifications.
The meeting will be held on Tuesday, September 20, 2022, from 10 a.m. to noon.
The meeting will be held via webinar. Connection information will be posted to the calendar prior to the meeting at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of the meeting is for the Spiny Dogfish Committee to provide recommendations regarding future specifications, including potential federal trip limit modifications.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Shelley Spedden, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Groundfish Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). This meeting will be held both in-person and with a webinar option. Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Thursday, September 15, 2022, at 9 a.m.
The meeting will be held at the Hilton Garden Inn, 100 Boardman Street, Boston, MA 02129; phone: (617) 567-6789.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Groundfish Committee will meet to discuss: Framework Adjustment 65/Specifications and Management Measures—status determination criteria, Gulf of Maine (GOM) cod and Southern New England/Mid-Atlantic (SNE/MA)
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Scallop Advisory Panel to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). This meeting will be held in-person with a webinar option. Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This hybrid meeting will be held on Tuesday, September 20, 2022, at 9 a.m. Webinar registration URL information:
This meeting will be held at the Hilton Garden Inn Boston Logan Airport, 100 Boardman Street, Boston, MA 02128; telephone: (617) 567-6789.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Advisory Panel plans to discuss Framework 36—review results of 2022 scallop surveys, and preliminary projections. The primary focus of this meeting will be to develop input on the range of potential specification alternatives for FY 2023 and FY 2024. The action will set ABC/ACLs, days-at-sea, access area allocations, total allowable landings for the Northern Gulf of Maine (NGOM) management area, targets for General Category incidental catch, General Category access area trips and trip accounting, and set-asides for the observer and research programs for fishing year 2023 and default specifications for fishing year 2024. They also plan to review work priorities—receive updates on the progress toward 2022 work priorities and Committee tasking. Provide input on the range of possible 2023 scallop work priorities. Also, on the agenda is Scoping for Limited Access Leasing—review input gathered through the scoping process and recommend whether the Council should initiate an amendment to develop measures that would allow leasing in the Limited Access component of the fishery. Other business will be discussed, if necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Scallop Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). This meeting will be held in-person with a webinar option. Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This webinar will be held on Wednesday, September 21, 2022, at 9 a.m.
Webinar registration URL information:
This meeting will be held at the Hilton Garden Inn Boston Logan Airport, 100 Boardman Street, Boston, MA 02128; telephone: (617) 567-6789.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The Committee will discuss Framework 36—review results of 2022 scallop surveys, and preliminary projections. The primary focus of this meeting will be to develop input on the range of potential specification alternatives for FY 2023 and FY 2024. The action will set ABC/ACLs, days-at-sea, access area allocations, total allowable landings for the Northern Gulf of Maine (NGOM) management area, targets for General Category incidental catch, General Category access area trips and trip accounting, and set-asides for the observer and research programs for fishing year 2023 and default specifications for fishing year 2024. They also plan to review work priorities—receive updates on the progress toward 2022 work priorities and Committee tasking. Provide input on the range of possible 2023 scallop work priorities. Also, on the agenda is Scoping for Limited Access Leasing—review input gathered through the scoping process and recommend whether the Council should initiate an amendment to develop measures that would allow leasing in the Limited Access component of the fishery. Other business will be discussed, if necessary.
Although non-emergency issues not contained on the agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council (Council) will hold a three-day in-person meeting of its Standing, Reef Fish, Socioeconomic, and Ecosystem Scientific and Statistical Committees (SSC).
The meeting will be held Wednesday, September 21 through Friday, September 23, 2022. Meeting times are scheduled as follows: Wednesday, from 1 p.m. to 5 p.m.; Thursday, from 9 a.m. to 5 p.m.; and Friday, from 9 a.m. to 12 noon, EDT.
The meeting will take place at the Gulf Council office. If you are unable to attend in-person, the public may listen-in to the meeting via webinar. Registration information will be available on the Council's website by visiting
Mr. Ryan Rindone, Lead Fishery Biologist, Gulf of Mexico Fishery Management Council;
The meeting will begin with Introductions and Adoption of Agenda, Approval of Verbatim Minutes and Meeting Summary from the July 7-8, 2022, meeting, and review of Scope of Work. The Committees will select an SSC Representative for the October 24-27, 2022, Gulf Council Meeting. Following, the Committees will review a presentation and report on the Socioeconomic Stock Assessment Workshop Report, including other background materials for SSC discussion. The Committees will then review the Essential Fish Habitat Dashboard, including background material and discussion. Public comment will be heard at the end of the day.
The Committees will receive presentations on Alternative Practicable Approaches to Sector Allocation Determinations, and the SEDAR 68 Operational Assessment for Gulf of Mexico Scamp, including background materials and SSC discussion; and will receive public comment at the end of the day, if any.
The Committees will review and discuss the Scopes of Work for 2024's Operational Assessments of Lane Snapper, Gag Grouper and Gulf King Mackerel, including background materials. Following, the Committees will review Updated Projections for Gulf of Mexico Gag Grouper using the State Reef Fish Survey (SRFS), including a presentation, background materials and SSC discussion.
Lastly, the Committees will receive public comment before addressing any items under Other Business.
The meeting will be also be broadcast via webinar. You may register for the webinar by visiting
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on
Although other non-emergency issues not on the agenda may come before the Scientific and Statistical Committees for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during these meetings. Actions of the Scientific and Statistical Committee will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take-action to address the emergency.
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to Kathy Pereira, (813) 348-1630, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 77 Highly Migratory Species (HMS) Hammerhead Sharks Assessment Webinar IV.
The SEDAR 77 assessment of the Atlantic stock of hammerhead sharks will consist of a stock identification (ID) process, data webinars/workshop, a series of assessment webinars, and a review workshop. See
The SEDAR 77 HMS Hammerhead Sharks Assessment Webinar IV is scheduled for Friday, September 16, 2022, from 10 a.m. until 1 p.m., Eastern Time. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from or completed prior to the time established by this notice.
The meeting will be held via webinar. The webinar is open to members of the public. Registration for the webinar is available by contacting the SEDAR coordinator via email at
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4371; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion at the SEDAR 77 HMS Hammerhead Shark Assessment Webinar IV are as follows: discuss any leftover data issues that were not cleared up during the data process, answer any questions that the analysts have, and discuss model development and model setup.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the South Atlantic Fishery Management Council office (see
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Protected Resources Committee will hold a public meeting via webinar.
The meeting will be held on Wednesday, September 14, 2022, from 1 p.m. to 4:30 p.m. See
The meeting will be held via webinar. Details on the agenda, webinar listen-in access, and briefing materials will be posted at the MAFMC's website:
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Protected Resources Committee will meet to review materials for phase two of the Atlantic Large Whale Take Reduction Plan which focuses on reducing the risk of entanglement to right, humpback, and fin whales in U.S. East Coast gillnet, Atlantic mixed species trap/pot, and Mid-Atlantic lobster and Jonah crab trap/pot fisheries. The measures developed in phase two of this plan have the potential to impact several Council managed fisheries and the Protected Resources Committee will develop recommendations and guidance for the Council's representation on the Atlantic Large Whale Take Reduction Team. This team is making final recommendations at their September 19 and 22, 2022 meetings. The Protected Resources Committee will also review and provide comments on the proposed North Atlantic Right Whale Vessel Strike Reduction Rule. The Committee may address other protected resources issues as they arise.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shelley Spedden at the Council Office, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 82 South Atlantic Gray Triggerfish Data Workshop.
The SEDAR 82 assessment of the South Atlantic stock of Gray Triggerfish will consist of a data workshop, a series of assessment webinars, and a review workshop. A SEDAR 82 Data Workshop is scheduled for September 19-23, 2022. See
The SEDAR 82 South Atlantic Gray Triggerfish Data Workshop is scheduled from 1 p.m. until 5 p.m. (ET) on September 19, 2022; 8:30 a.m. until 5 p.m. on September 20-22, 2022; and from 8:30 a.m. until 1 p.m. on September 23, 2022. The established times may be adjusted as necessary to accommodate the timely completion of discussion relevant to the assessment process. Such adjustments may result in the meeting being extended from or completed prior to the time established by this notice.
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4371; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a three-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses. The product of the Assessment Process is a stock assessment report which describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. The assessment is independently peer reviewed at the Review Workshop. The product of the Review Workshop is a Summary documenting panel opinions regarding the strengths and weaknesses of the stock assessment and input data. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Data Workshop are as follows:
An assessment data set and associated documentation will be developed during the workshop. Participants will evaluate proposed data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery dependent and fishery independent measures of stock abundance.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the South Atlantic Fishery Management Council
The times and sequence specified in this agenda are subject to change.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of web conference.
The North Pacific Fishery Management Council (Council) Bering Sea Fishery Ecosystem Plan Climate Change Taskforce (BSFEP CC) will meet September 15, 2022.
The meeting will be held on Thursday, September 15, 2022, from 9 a.m. to 5 p.m. Alaska Time.
The meeting will be a web conference. Join online through the link at
Dr. Diana Stram, Council staff; phone; (907) 271-2809 and email:
The agenda will include: (a) provide feedback on the Climate Readiness Synthesis report; (b) discuss rankings; (c) plan next steps for CCTF work in 2022-23; (d) and other business. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smart phone; or by phone only. Connection information will be posted online at:
Public comment letters will be accepted and should be submitted electronically to
United States Patent and Trademark Office, Department of Commerce.
Notice of information collection; request for comment.
The United States Patent and Trademark Office (USPTO), as required by the Paperwork Reduction Act of 1995, invites comments on the extension and revision of an existing information collection: 0651-0082 Patent and PTAB Pro Bono Programs. The purpose of this notice is to allow 60 days for public comment preceding submission of the information collection to OMB.
To ensure consideration, comments regarding this information collection must be received on or before October 31, 2022.
Interested persons are invited to submit written comments by any of the following methods. Do not submit Confidential Business Information or otherwise sensitive or protected information.
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Requests for additional information should be directed to Stacey G. White, Lead Administrative Patent Judge, USPTO—Patent Trial and Appeal Board, Texas Regional Office; 207 S Houston St., Dallas, TX 75202 by telephone at (469) 295-9061; or by email to
The Leahy-Smith America Invents Act (AIA), Public Law 112-29 § 32 (2011) directs the USPTO to work with and support intellectual property law associations across the country in the establishment of pro bono programs designed to assist financially under-resourced independent inventors and small businesses. To support this, the USPTO—in collaboration with various non-profit organizations—implemented the Patent Pro Bono program; a series of autonomous regional hubs that act as matchmakers to help connect low-income inventors with volunteer patent attorneys across the United States. The Patent Pro Bono program comprises a network of regional hubs organized by various bar associations, law school IP clinics, and lawyer referral services that provide services across all fifty states, the District of Columbia, and Puerto Rico.
In 2022, the Patent Trial and Appeal Board (PTAB) began coordinating
Each
This renewal of 0651-0082 broadens the scope of the information collection to include the PTAB Pro Bono Program, in addition to the Patent Pro Bono Program that was covered under this collection. The name of the information collection has been adjusted from “Pro Bono Survey” to “Patent and PTAB Pro Bono Programs” in order to include related programs under this single information collection. This information collection includes an instrument capturing data for the Patent Pro Bono program (Patent Pro Bono Survey) and its applicant participations (Patent Applicant Intake Form). The information collection also has a similar instrument that covers the collection of data for the PTAB program (PTAB Pro Bono Survey) and the applicants requesting to participate in that PTAB offering (PTAB Applicant Intake Form).
The Pro Bono surveys will be conducted electronically through web forms created to support these surveys. Applicant Intake forms may be offered electronically or in person depending the needs of the participating organizations.
The USPTO is soliciting public comments to:
(a) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected; and
(d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
All comments submitted in response to this notice are a matter of public record. USPTO will include or summarize each comment in the request to OMB to approve this information collection. Before including an address, phone number, email address, or other personally identifiable information (PII) in a comment, be aware that the entire comment—including PII—may be made publicly available at any time. While you may ask in your comment to
Department of the Army, Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571-372-7574,
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
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Requests for copies of the information collection proposal should be sent to Ms. Duncan at
Under Secretary of Defense (Comptroller), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by October 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Contract Audit Agency, 8725 John J. Kingman Road, Fort Belvoir, Virginia 22060, ATTN: Ms. Kimberly Litherland, 571-448-5157.
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by October 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Human Resources Activity, 4800 Mark Center Drive, Suite 08F05, Alexandria, VA 22350, LaTarsha Yeargins, 571-372-2089.
Cost Assessment and Program Evaluation (CAPE), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by October 31, 2022.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to OSD CAPE, 1800 Defense Pentagon, Room BE798, Washington, DC 20301-1800, Kelly Hazel, or call (703)-614-5397.
CAPE is statutorily required by Title 10, United Stated Code in Section 2334(g), to “develop policies, procedures, guidance and a collection method to ensure that quality acquisition cost data are collected to facilitate cost estimation and comparison across acquisition programs.” Section 2334(g) also contains a 100-million-dollar threshold statutory requirement for providing cost data from each acquisition program that exceeds this amount.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension without change of a currently approved collection.
Interested persons are invited to submit comments on or before September 29, 2022.
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this notice to
For specific questions related to collection activities, please contact Beth Grebeldinger, (202) 377-4018.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its
Office of Career, Technical, and Adult Education, Department of Education.
Notice.
The Secretary of Education invites publishers to submit tests for review and approval for use in the National Reporting System for Adult Education (NRS) and announces the date by which publishers must submit these tests. This notice relates to the approved information collection under OMB control number 1830-0567.
Submit your application by email to
John LeMaster, U.S. Department of Education, 400 Maryland Avenue SW, Room 11152, Potomac Center Plaza, Washington, DC 20202-7240. Telephone: (202) 245-6218. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Department's regulations for Measuring Educational Gain in the National Reporting System for Adult Education, 34 CFR part 462 (NRS regulations), include the procedures for determining the suitability of tests for use in the NRS.
There is a review process that will begin on October 1, 2022. Only tests submitted by the due date will be reviewed in that review cycle. If a publisher submits a test after October 1, 2022, the test will not be reviewed until the review cycle that begins on October 1, 2023.
(a) In preparing your application, you must comply with the requirements in 34 CFR 462.11.
(b) In accordance with 34 CFR 462.10, the deadline for transmittal of applications in this fiscal year is October 1, 2022.
(c) You must retain a copy of your sent email message and the email attachments as proof that you submitted your application by 11:59 p.m. local time on October 1, 2022.
(d) We do not consider applications submitted after the application deadline date to be timely for the October 1, 2022, review cycle. If an application is submitted after the October 1, 2022, deadline date, the application will be considered timely for the October 1, 2023, deadline date.
You may also access documents of the Department published in the
Office of the General Counsel, Department of Education.
Notice.
The Department publishes this memorandum on the Secretary's legal authority to cancel student debt on a categorical basis.
Brian Siegel, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW,
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The Department publishes this memorandum on the Secretary's legal authority to cancel student debt on a categorical basis. The debt relief memorandum is in Appendix A of this notice.
You may also access documents of the Department published in the
For the past year and a half, the Office of General Counsel (“OGC”), in consultation with our colleagues at the Department of Justice Office of Legal Counsel, has conducted a review of the Secretary's legal authority to cancel student debt on a categorical basis. This review has included assessing the analysis outlined in a publicly disseminated January 2021 memorandum signed by a former Principal Deputy General Counsel. As detailed below, we have determined that the Higher Education Relief Opportunities for Students (“HEROES”) Act of 2003 grants the Secretary authority that could be used to effectuate a program of targeted loan cancellation directed at addressing the financial harms of the COVID-19 pandemic. We have thus determined that the January 2021 memorandum was substantively incorrect in its conclusions.
Given the significant public interest in this issue, and the potential for public confusion caused by the public availability of the January 2021 memorandum, I recommend making this memorandum publicly available and publishing it in the
The HEROES Act, first enacted in the wake of the September 11 attacks, provides the Secretary broad authority to grant relief from student loan requirements during specific periods (a war, other military operation, or national emergency, such as the present COVID-19 pandemic) and for specific purposes (including to address the financial harms of such a war, other military operation, or emergency). The Secretary of Education has used this authority, under both this and every prior administration since the Act's passage, to provide relief to borrowers in connection with a war, other military operation, or national emergency, including the ongoing moratorium on student loan payments and interest.
Specifically, the HEROES Act authorizes the Secretary to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” if the Secretary “deems” such waivers or modifications “necessary to ensure” at least one of several enumerated purposes, including that borrowers are “not placed in a worse position financially” because of a national emergency. 20 U.S.C. 1098bb(a)(1), (2)(A).
Several provisions of the HEROES Act indicate that Congress intended the Act to confer broad authority under the circumstances, and for the purposes, specified by the Act. First, the Act grants authority “[n]otwithstanding any other provision of law, unless enacted with specific reference to this section.”
In present circumstances, this authority could be used to effectuate a program of categorical debt cancellation directed at addressing the financial harms caused by the COVID-19 pandemic. The Secretary could waive or modify statutory and regulatory provisions to effectuate a certain amount of cancellation for borrowers who have been financially harmed because of the COVID-19 pandemic. The Secretary's determinations regarding the amount of relief, and the categories of borrowers for whom relief is necessary, should be informed by evidence regarding the financial harms that borrowers have experienced, or will likely experience, because of the COVID-19 pandemic. But the Secretary's authority can be exercised categorically to address the situation at hand; it does not need to be exercised “on a case-by-case basis.”
On January 7, 2021, Secretary DeVos resigned from her position as Secretary of Education, effective January 8, 2021. On January 13, a news outlet published a memorandum signed January 12 by the then-Principal Deputy General Counsel, addressed to “Betsy DeVos[,] Secretary of Education.”
As an initial matter, the bulk of the January 2021 memorandum's discussion of HEROES Act authority describes and quotes the key provisions of the HEROES Act. The memorandum explains that the HEROES Act provides the Secretary “authority to provide specified [
The memorandum goes on to read in purported limitations on the scope of relief that may be afforded that are contrary to the clear text of the Act. The memorandum advances three primary arguments in support of a conclusion that “Congress never intended the HEROES Act as authority for mass cancellation, compromise, discharge, or forgiveness of student loan principal balances, and/or to materially modify repayment amounts or terms.” Jan. 2021 Mem. at 6.
First, the memorandum recites certain statutory limits on the Secretary's authority, including the HEROES Act's statutory definition of individuals eligible for relief, 20 U.S.C. 1098ee(2), and the enumerated purposes for which waivers or modifications may be issued,
The memorandum is correct that such statutory provisions exist but provides no support for the suggestion that these provisions impose limitations beyond their clear terms.
Second, the memorandum points to the HEROES Act's references to avoiding “defaults” and a “cross-cite” to a separate provision of the Higher Education Act relating to the “return” of student loan funds, concluding that these provisions “provide a strong textual basis for concluding Congress intended loans to be repaid.”
Third, the memorandum concludes that the authority to “waive or modify any statutory or regulatory provision” is limited to the definition of “modify” that was adopted for an unrelated telecommunications statute, and “does not authorize major changes.” Jan. 2021 Mem. at 6. The memorandum draws its definition of modify from
We have discussed these and other aspects of the January 2021 memorandum with the Office of Legal Counsel, and we further find persuasive the discussion of the January 2021 memorandum offered in the Office of Legal Counsel's memorandum, which will be published in tandem with this memorandum's recommended publication.
For the reasons detailed above, I recommend that you (1) determine that the January 2021 memorandum is formally rescinded as substantively incorrect and (2) authorize publication in the
Bonneville Power Administration, Department of Energy.
Submission for Office of Management and Budget (OMB) review; comment request.
The Department of Energy (DOE), Bonneville Power Administration (BPA), invites public comment on a collection of information that BPA is developing for submission to OMB pursuant to the Paperwork Reduction Act of 1995. The proposed collection, Contractor Safety, will be used to manage portions of the Safety program that are related to contractors. These collection instruments allow for compliance with Occupational Safety and Health Administration (OSHA) requirements.
Comments regarding this proposed information collection must be received on or before October 31, 2022. If you anticipate any difficulty in submitting comments within that period, contact the person listed in the
Written comments and recommendations for the proposed information collection should be sent
Requests for additional information or copies of the information collection instrument and instructions should be directed to Attn: Stephanie Noell, Privacy Program, by email at
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
This information collection request contains:
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This document of the Department of Energy was signed on August 8, 2022, by Candice D. Palen, Information Collection Clearance Manager, 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
Office Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE or the Department), pursuant to the Paperwork Reduction Act of 1995), intends to extend for three years, an information collection request with the Office of Management and Budget (OMB). The information collection request, Historic Preservation for Energy Efficiency Programs, was initially approved on December 1, 2010, under OMB Control No. 1910-5155 and expired on September 30, 2015. The information collection request was previously approved on February 24, 2020 under OMB Control No. 1910-5155 and its current expiration date is February 28, 2023. This extension will allow DOE to continue data collection on the status of the Weatherization Assistance Program (WAP), the State Energy Program (SEP), and the Energy Efficiency and Conservation Block Grant (EECBG) Program. Program activities will ensure compliance with the National Historic Preservation Act (NHPA).
Comments regarding this propose information collection must be received on or before October 31, 2022. If you anticipate difficulty in submitting comments within that period, contact the person listed
Written comments may be sent to Michael Tidwell by email to the following address:
Requests for additional information or copies of the information collection instrument and instructions should be directed to Michael Tidwell, EE-5W, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585-0121 or by email or phone at
Additional information and reporting guidance concerning the Historic Preservation reporting requirement for the WAP, SEP, and EECBG programs are available for review at:
Comments are invited on: (a) Whether the extended collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information
This information collection request contains: (1)
(5)
This document of the Department of Energy was signed on August 12, 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
Office of Electricity, Department of Energy.
Notice of application.
Command Power Corp. (Applicant) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2022.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Steven Blazek, 720-962-7265,
The Department of Energy (DOE) regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 42 U.S.C. 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On June 7, 2022, Applicant filed an application with DOE (Application or App.) “for authority to transmit electric energy from the United States to Canada for a period of five (5) years.” App. at 2. Applicant states that it is “a Canadian company with its principal place of business in Douro-Dummer, Ontario.”
Applicant further claims that it would “purchase power to be exported from a variety of sources such as power marketers, independent power producers, or U.S. electric utilities and federal power marketing entities as those terms are defined in sections 3(22) and 3(19) of the FPA.” App. at 3. Applicant contends that “by definition, such power is surplus to the system of the generator and, therefore, the electric power that Command Power will export on either a firm or interruptible basis will not impair the sufficiency of the electric power supply within the U.S.
The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning Command Power Corp.'s application to export electric energy to Canada should be clearly marked with OE Docket No. EA-496. Additional copies are to be provided directly to Ruta Kalvaitis Skučas and Maeve C. Tibbetts, K&L Gates LLP, 1601 K St, NW, Washington, DC 20006,
Copies of the Application will be made available, upon request, by accessing the program website at
Office of Electricity, Department of Energy.
Notice of application.
NRG Power Marketing LLC (Applicant or NRGPML) has applied for authorization to transmit electric energy from the United States to Mexico pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 14, 2022.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Steven Blazek, 720-962-7265,
The Department of Energy (DOE) regulates exports of electricity from the United States to a foreign country, pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b) and 42 U.S.C. 7172(f)). Such exports require authorization under section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)).
On May 25, 2022, NRGPML filed an application with DOE (Application or App.) for “its blanket authority to transmit electric energy from the United States to Mexico.” App. at 1. NRGPML states that it “is a Delaware limited liability corporation with a principal place of business in Princeton, New Jersey,” adding that it “is a power marketer authorized by the Federal Energy Regulatory Commission (FERC) to make sales of electric power at wholesale in interstate commerce at market-based rates.”
NRGPML further claims that it would “purchase the energy to be exported from wholesale generators, electric utilities, and federal power marketing agencies.” App. at 2. NRGPML contends that it “will purchase the energy to be exported from wholesale generators, electric utilities, and federal power marketing agencies. By definition, such energy is surplus to the system of the generator and thus, exportation of said energy will not impair the adequacy of electric power supply within the United States.” App. at 3.
NRGPML applied to renew the authorization granted in DOE Order No. EA-384-A, which expired on June 11, 2022.
The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning NRGPML's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-384-B. Additional copies are to be provided directly to Alan Johnson, Managing Director Regulatory Compliance, NRG Energy, Inc., 804 Carnegie Center, Princeton, NJ 08540,
Copies of the Application will be made available, upon request, by accessing the program website at
Take notice that the following settlement agreement has been filed with the Commission and is available for public inspection.
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The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. Boott filed the Settlement Agreement on behalf of itself, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the New Hampshire Fish and Game Department, the Massachusetts Division of Marine Fisheries, and the Massachusetts Division of Fisheries and Wildlife. The purpose of the Settlement Agreement is to resolve, among the signatories, issues related to minimum flows in the project's bypassed reach and fish passage associated with the issuance of any new license and fishway prescriptions under Section 18 of the FPA for the project. Specifically, the Settlement Agreement includes, but is not limited to, proposed measures for minimum flows in the bypassed reach, modifications to existing upstream and downstream fish passage facilities, modifications to the project's bypassed reach for upstream fish passage, installation of an upstream fish passage facility in the project tailrace, fish passage studies and effectiveness testing, fish passage protection, and fish passage facility operation. Boott requests that the Commission incorporate the proposed measures into any new license issued.
l. A copy of the settlement agreement may be viewed on the Commission's website at
You may also register online at
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing
This is a supplemental notice in the above-referenced proceeding of Pattern Energy Management Services LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is September 13, 2022.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric reliability filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Federal Energy Regulatory Commission, Department of Energy.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-547 (Gas Pipeline Rates: Refund Report Requirements).
Comments on the collection of information are due October 31, 2022.
Send written comments on FERC-547 (IC22-33-000) to the Commission. You may submit copies of your comments by one of the following methods:
Electronic filing through
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• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery.
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Ellen Brown may be reached by email at
The Commission uses the data collected in FERC-547 to monitor refunds owed by natural gas companies to ensure that the flow-through of refunds owed by these companies are made as expeditiously as possible and to assure that refunds are made in compliance with the Commission's regulations.
Southeastern Power Administration, DOE.
Notice of interim approval.
The Administrator for the Southeastern Power Administration (Southeastern) has confirmed and approved, on an interim basis, rate schedules SOCO-1-G, SOCO-2-G, SOCO-3-G, SOCO-4-G, Duke-1-G, Duke-2-G, Duke-3-G, Duke-4-G, Santee-1-G, Santee-2-G, Santee-3-G, Santee-4-G, SCE&G-1-G, SCE&G-2-G, SCE&G-3-G, SCE&G-4-G, Pump-1-A, and Replacement-1. These rate schedules are applicable to Southeastern power sold to existing preference customers in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina. The rate schedules are approved on an interim basis through September 30, 2027, and are subject to confirmation and approval by the Federal Energy Regulatory Commission (FERC) on a final basis.
Approval of rates on an interim basis is effective October 1, 2022.
Virgil G. Hobbs, Administrator, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635-4578, (706) 213-3800.
The Federal Energy Regulatory Commission, by Order issued January 25, 2018, in Docket No. EF17-5-000 (162 FERC ¶ 62,059), confirmed and approved Wholesale Power Rate Schedules SOCO-1-F, SOCO-2-F, SOCO-3-F, SOCO-4-F, ALA-1-O, Duke-1-F, Duke-2-F, Duke-3-F, Duke-4-F, Santee-1-F, Santee-2-F, Santee-3-F, Santee-4-F, SCE&G-1-F, SCE&G-2-F, SCE&G-3-F, SCE&G-4-F, Pump-1-A, and Replacement-1 through September 30, 2022. This order replaces these rate schedules on an interim basis, subject to final approval by FERC.
Rate Order No. SEPA-62 and associated rate schedules are applicable to Southeastern Power Administration (Southeastern) power sold to existing preference customers in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina. The rate schedules are approved on an interim basis, effective October 1, 2022, through September 30, 2027, and are subject to confirmation and approval by the Federal Energy Regulatory Commission (FERC) on a final basis.
Power from the Georgia-Alabama-South Carolina Projects is presently sold under Wholesale Power Rate Schedules SOCO-1-F, SOCO-2-F, SOCO-3-F, SOCO-4-F, ALA-1-O, Duke-1-F, Duke-2-F, Duke-3-F, Duke-4-F, Santee-1-F, Santee-2-F, Santee-3-F, Santee-4-F, SCE&G-1-F, SCE&G-2-F, SCE&G-3-F, SCE&G-4-F, Pump-1-A, and Replacement-1. These rate schedules were approved by the FERC in docket number EF17-5-000 on January 25, 2018, for a period ending September 30, 2022 (162 FERC ¶ 62,059).
Notice of a proposed rate adjustment was published in the
Comments received from interested parties are summarized below. Southeastern's responses are also provided.
An examination of Southeastern's revised system power repayment study, prepared in December 2021, for the Georgia-Alabama-South Carolina System shows that with the proposed rates, all system power costs are paid within the appropriate repayment period required by existing law and DOE Order RA 6120.2. The Administrator, Southeastern Power Administration has certified that the rates are consistent with applicable law and that they are the lowest possible rates to customers consistent with sound business principles.
Pursuant to Section 302(a) of the Department of Energy Organization Act (Pub. L. 95-91, 42 U.S.C. 7152(a)), the functions of the Secretary of the Interior and the Federal Power Commission under Section 5 of the Flood Control Act of 1944 (16 U.S.C. 825s), relating to Southeastern, were transferred to and vested in the Secretary of Energy. By Delegation Nos. S1-DEL-RATES-2016 and S1-DEL-RATES-1993, effective November 19, 2016, and November 4, 1993, respectively, the Secretary of Energy delegated to the Administrator, Southeastern Power Administration, the authority to develop power and transmission rates, to the Deputy Secretary of Energy the authority to confirm, approve, and place such rates into effect on an interim basis, and to FERC the authority to confirm, approve, and place into effect on a final basis or to disapprove rates developed by the Administrator under the delegation. By Delegation No. S1-DEL-S3-2022-2, effective June 13, 2022, the Secretary of Energy also delegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Under Secretary (for Infrastructure). By Redelegation No. S3-DEL-SEPA1-2022, effective June 13, 2022, the Secretary of Energy, for the Under Secretary (for Infrastructure), redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Administrator, Southeastern Power Administration, under which this rate is confirmed, approved, and placed into effect on an interim basis by the Administrator, Southeastern Power Administration.
Southeastern has reviewed the possible environmental impacts of the rate adjustment under consideration and has concluded that, because the adjusted rates would not significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, as amended, the proposed action is not a major Federal action for which preparation of an Environmental Impact Statement is required.
Southeastern has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
Information regarding these rates, including studies, and other supporting materials, is available for public review in the offices of Southeastern Power Administration, 1166 Athens Tech Road, Elberton, Georgia 30635-6711.
In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm and approve on an interim basis, effective October 1, 2022, attached Wholesale Power Rate Schedules SOCO-1-G, SOCO-2-G, SOCO-3-G, SOCO-4-G, Duke-1-G, Duke-2-G, Duke-3-G, Duke-4-G, Santee-1-G, Santee-2-G, Santee-3-G, Santee-4-G, SCE&G-1-G, SCE&G-2-G, SCE&G-3-G, SCE&G-4-G, Pump-1-A, and Replacement-1. The rate schedules shall remain in effect on an interim basis through September 30, 2027, unless such period is extended or until the FERC confirms and approves them or substitute rate schedules on a final basis.
This document of the Department of Energy was signed on August 22, 2022, by Virgil G. Hobbs III, Administrator for Southeastern Power Administration, 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
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, and Florida to whom power may be transmitted and scheduled pursuant to contracts between the Government and Southern Company Services, Incorporated (hereinafter called the Company) and the Customer. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$4.08 per kilowatt of total contract demand per month estimated as of January 2022 is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT). The distribution charges may be modified by FERC pursuant to application by the Company under Section 205 of the Federal Power Act or the Government under Section 206 of the Federal Power Act.
Proceedings before FERC involving the OATT or the distribution charges may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
$0.0806 per kilowatt of total contract demand per month.
$0.11 per kilowatt of total contract demand per month.
$0.0483 per kilowatt of total contract demand per month.
The charges for Transmission, System Control, Reactive, and Regulation Services shall be governed by and subject to refund based upon the determination in the proceeding involving Southern Companies' OATT.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system.
As of March 2017, applicable energy losses are as follows:
These losses shall be effective until modified by FERC, pursuant to application by Southern Companies under Section 205 of the Federal Power Act or SEPA under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, and Florida to whom power may be transmitted pursuant to contracts between the Government and Southern Company Services, Incorporated (hereinafter called the Company) and the Customer. The Customer is responsible for providing a scheduling arrangement with the Government. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$4.08 per kilowatt of total contract demand per estimated as of January 2022 is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT). The distribution charges may be modified by FERC pursuant to application by the Company under Section 205 of the Federal Power Act or the Government under Section 206 of the Federal Power Act.
Proceedings before FERC involving the OATT or the distribution charges may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
$0.11 per kilowatt of total contract demand per month.
The charges for Transmission, System Control, Reactive, and Regulation Services shall be governed by and subject to refund based upon the determination in the proceeding involving Southern Companies' OATT.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. As of March 2017, applicable energy losses are as follows:
These losses shall be effective until modified by FERC, pursuant to application by Southern Companies under Section 205 of the Federal Power Act or SEPA under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, and Florida to whom power may be scheduled pursuant to contracts between the Government and Southern Company Services, Incorporated (hereinafter called the Company) and the Customer. The Customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects (hereinafter referred to collectively as the Projects) and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
$0.0806 per kilowatt of total contract demand per month.
$0.0483 per kilowatt of total contract demand per month.
The charges for Transmission, System Control, Reactive, and Regulation Services shall be governed by and subject to refund based upon the determination in the proceeding involving Southern Companies' Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, and Florida served through the transmission facilities of Southern Company Services, Inc. (hereinafter called the Company) or the Georgia Integrated Transmission System. The Customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects (hereinafter referred to collectively as the Projects) and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
The charges for Transmission, System Control, Reactive, and Regulation Services shall be governed by and subject to refund based upon the determination in the proceeding involving Southern Companies' Open Access Transmission Tariff.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be transmitted and scheduled pursuant to contracts between the Government and Duke Energy Company (hereinafter called the Company) and the Customer. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$1.51 per kilowatt of total contract demand per month is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT may result in the separation
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses of three percent (3%) as of January 2022). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. These losses shall be effective until modified by FERC, pursuant to application by the Company under Section 205 of the Federal Power Act or SEPA under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be transmitted pursuant to contracts between the Government and Duke Energy Company (hereinafter called the Company) and the Customer. The Customer is responsible for providing a scheduling arrangement with the Government. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$1.51 per kilowatt of total contract demand per month is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses of three per cent (3%) as of January 2022). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system. These losses shall be effective until modified by the Federal Energy Regulatory Commission, pursuant to application by the Company under Section 205 of the Federal Power Act or SEPA under Section 206 of the Federal Power Act or otherwise.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina to whom power may be scheduled pursuant to contracts between the Government and Duke Energy Company (hereinafter called the Company) and the Customer. The Customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Savannah River Projects
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in North Carolina and South Carolina served through the transmission facilities of Duke Energy Company (hereinafter called the Company) and the Customer. The Customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement with the Company. Nothing in this rate schedule shall preclude modifications to the aforementioned contracts to allow an eligible customer to elect service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Savannah River Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter call the Customer) in South Carolina to whom power may be wheeled and scheduled pursuant to contracts between the Government and South Carolina Public Service Authority (hereinafter called the Authority). Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Authority's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Authority. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Authority's rate.
$1.88 per kilowatt of total contract demand per month as of January 2022 is presented for illustrative purposes.
The initial transmission rate is subject to annual adjustment on July 1 of each year, and will be computed subject to the formula contained in Appendix A to the Government-Authority Contract.
Proceedings before FERC involving the Authority's Open Access Transmission Tariff may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Authority (less applicable losses of two per cent (2%) as of January 2022). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Authority's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
When energy delivery to the Customer's system for the account of the Government is reduced or interrupted, and such reduction or interruption is not due to conditions on the Customer's system, the demand charge for the month shall be appropriately reduced as to kilowatts of such capacity which have been interrupted or reduced for each day in accordance with the following formula:
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter call the Customer) in South Carolina to whom power may be wheeled pursuant to contracts between the Government and South Carolina Public Service Authority (hereinafter called the Authority). The customer is responsible for providing a scheduling arrangement with the Government. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Authority's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Authority. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Authority's rate.
$1.88 per kilowatt of total contract demand per month as of January 2022 is presented for illustrative purposes.
The initial transmission rate is subject to annual adjustment on July 1 of each year, and will be computed subject to the formula contained in Appendix A to the Government-Authority Contract.
Proceedings before FERC involving the Authority's Open Access Transmission Tariff may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Authority (less applicable losses of two percent (2%) as of January 2022). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Authority's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
When energy delivery to the Customer's system for the account of the Government is reduced or interrupted, and such reduction or interruption is not due to conditions on the Customer's system, the demand charge for the month shall be appropriately reduced as to kilowatts of such capacity which have been interrupted or reduced for each day in accordance with the following formula:
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter call the Customer) in South Carolina to whom power may be scheduled pursuant to contracts between the Government and South Carolina Public Service Authority (hereinafter called the Authority). The customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Authority. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Authority's rate.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Authority (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
When energy delivery to the Customer's system for the account of the Government is reduced or interrupted, and such reduction or interruption is not due to conditions on the Customer's system, the demand charge for the month shall be appropriately reduced as to kilowatts of such capacity which have been interrupted or reduced for each day in accordance with the following formula:
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter call the Customer) in South Carolina served through the transmission facilities of South Carolina Public Service Authority (hereinafter called the Authority). The customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Authority. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Authority's rate.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Authority (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
When energy delivery to the Customer's system for the account of the Government is reduced or interrupted, and such reduction or interruption is not due to conditions on the Customer's system, the demand charge for the month shall be appropriately reduced as to kilowatts of such capacity which have been interrupted or reduced for each day in accordance with the following formula:
This rate schedule shall be available public bodies and cooperatives (any one of which is hereinafter called the Customer) in South Carolina to whom power may be wheeled and scheduled pursuant to contracts between the Government and the Dominion Energy South Carolina, Inc. (hereinafter called the Company). Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$5.07 per kilowatt of total contract demand per month as of January 2022 is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
The contract demand is the amount of capacity in kilowatts stated in the contract which the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
The Customer shall at its own expense provide, install, and maintain on its side of each delivery point the equipment necessary to protect and control its own system. In so doing, the installation, adjustment, and setting of all such control and protective equipment at or near the point of delivery shall be coordinated with that which is installed by and at the expense of the Company on its side of the delivery point.
This rate schedule shall be available public bodies and cooperatives (any one of which is hereinafter called the Customer) in South Carolina to whom power may be wheeled pursuant to contracts between the Government and the Dominion Energy South Carolina, Inc. (hereinafter called the Company). The customer is responsible for providing a scheduling arrangement with the Government. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the delivery points of the Customer on the Company's transmission and distribution system.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission (FERC) of the Company's rate.
$5.07 per kilowatt of total contract demand per month as of January 2022 is presented for illustrative purposes.
The initial transmission charge will be the Customer's ratable share of the transmission and distribution charges paid by the Government. The transmission charges are governed by and subject to refund based upon the determination in proceedings before FERC involving the Company's Open Access Transmission Tariff (OATT).
Proceedings before FERC involving the OATT may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission and distribution charges paid by the Government in behalf of the Customer.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Company's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
The Customer shall at its own expense provide, install, and maintain on its side of each delivery point the equipment necessary to protect and control its own system. In so doing, the installation, adjustment, and setting of all such control and protective equipment at or near the point of delivery shall be coordinated with that which is installed by and at the expense of the Company on its side of the delivery point.
This rate schedule shall be available public bodies and cooperatives (any one of which is hereinafter called the Customer) in South Carolina to whom power may be scheduled pursuant to contracts between the Government and the Dominion Energy South Carolina, Inc. (hereinafter called the Company). The customer is responsible for providing a transmission arrangement. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
The Customer shall at its own expense provide, install, and maintain on its side of each delivery point the equipment necessary to protect and control its own system. In so doing, the installation, adjustment, and setting of all such control and protective equipment at or near the point of delivery shall be coordinated with that which is installed by and at the expense of the Company on its side of the delivery point.
This rate schedule shall be available public bodies and cooperatives (any one of which is hereinafter called the Customer) in South Carolina served through the transmission facilities of Dominion Energy South Carolina, Inc. (hereinafter called the Company). The customer is responsible for providing a scheduling arrangement with the Government and for providing a transmission arrangement. Nothing in this rate schedule shall preclude an eligible customer from electing service under another rate schedule.
This rate schedule shall be applicable to the sale at wholesale of power and accompanying energy generated at the Allatoona, Buford, J. Strom Thurmond, Walter F. George, Hartwell, Millers Ferry, West Point, Robert F. Henry, Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. This rate schedule does not apply to energy from pumping operations at the Carters and Richard B. Russell Projects.
The electric capacity and energy supplied hereunder will be delivered at the Projects.
The monthly rate for capacity, energy, and generation services provided under this rate schedule for the period specified shall be:
$4.04 per kilowatt of total contract demand per month.
12.80 Mills per kilowatt-hour.
$0.12 per kilowatt of total contract demand per month.
Additional rates for Transmission, System Control, Reactive, and Regulation Services provided under this rate schedule shall be the rates charged Southeastern Power Administration by the Company. Future adjustments to these rates will become effective upon acceptance for filing by the Federal Energy Regulatory Commission of the Company's rate.
The contract demand is the amount of capacity in kilowatts stated in the contract that the Government is obligated to supply and the Customer is entitled to receive.
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the company (less applicable losses).
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
The Customer shall at its own expense provide, install, and maintain on its side of each delivery point the equipment necessary to protect and control its own system. In so doing, the installation, adjustment, and setting of all such control and protective equipment at or near the point of delivery shall be coordinated with that which is installed by and at the expense of the Company on its side of the delivery point.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, Florida, South Carolina, or North Carolina to whom power is provided pursuant to contracts between the Government and the Customer.
This rate schedule shall be applicable to the sale at wholesale energy generated from pumping operations at the Carters and Richard B. Russell Projects and sold under appropriate contracts between the Government and the Customer. The energy will be segregated from energy from other pumping operations.
The energy supplied hereunder will be delivered at the delivery points provided for under appropriate contracts between the Government and the Customer.
The rate for energy sold under this rate schedule for the months specified shall be:
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Facilitator (less any losses required by the Facilitator). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Facilitator's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
This rate schedule shall be available to public bodies and cooperatives (any one of whom is hereinafter called the Customer) in Georgia, Alabama, Mississippi, Florida, South Carolina, or North Carolina to whom power is provided pursuant to contracts between the Government and the Customer.
This rate schedule shall be applicable to the sale at wholesale energy purchased to meet contract minimum energy and sold under appropriate contracts between the Government and the Customer.
The energy supplied hereunder will be delivered at the delivery points provided for under appropriate contracts between the Government and the Customer.
The rate for energy sold under this rate schedule for the months specified shall be:
The Government will sell to the Customer and the Customer will purchase from the Government energy each billing month equivalent to a percentage specified by contract of the energy made available to the Facilitator (less any losses required by the Facilitator). The Customer's contract demand and accompanying energy will be allocated proportionately to its individual delivery points served from the Facilitator's system.
The billing month for power sold under this schedule shall end at 12:00 midnight on the last day of each calendar month.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), “Renewable Fuel Standard (RFS) Program” (EPA ICR Number 2546.03, OMB Control Number 2060-0725) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through August 31, 2022. Public comments were previously requested via the
Additional comments may be submitted on or before September 29, 2022.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2020-0105 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Anne-Marie Pastorkovich, Mail Code 6405A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-343-9623 ; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
The RFS program was created under the Energy Policy Act of 2005 (EPAct), which amended the Clean Air Act (CAA). The Energy Independence and Security Act of 2007 (EISA) further amended the CAA by expanding the RFS program. The RFS program is a national policy that requires a certain volume of renewable fuel to replace or reduce the quantity of petroleum-based transportation fuel, heating oil or jet fuel.
The reporting requirements of the RFS program typically fall under registration and compliance reporting. Recordkeeping requirements include product transfer documents (PTDs) and retention of records that support items reported. Because RFS relies upon a marketplace of RINs, EPA has created and maintains the EPA Moderated Transaction System (EMTS) capable of handling a high volume of RIN trading activities.
The respondents to this ICR are RIN Generators (producers and importers of renewable fuel), Obligated Parties (refiners and importers of gasoline and diesel), Exporters, RIN Owners, independent third-party Quality Assurance Plan (QAP) Providers, Third Parties (Auditors who submit reports on behalf of other respondents), and certain petitioners under the international aggregate compliance approach (such petitions are infrequent).
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Environmental Impact Assessment of Nongovernmental Activities in Antarctica (Renewal)” (EPA ICR No. 1808.09, OMB Control No. 2020-0007) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA). Before doing so, the EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through April 30, 2023. An Agency may not conduct, or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Comments must be submitted on or before October 31, 2022.
Submit your comments, referencing Docket ID No. EPA-HQ-OA-2019-0296, online using
The EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Julie Roemele, NEPA Compliance Division, Office of Federal Activities, Mail Code 2501G, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-5632; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, the EPA is soliciting comments and information to enable it to: (i) evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Protocol and the Rule also require an operator to employ procedures to assess and provide a regular and verifiable record of the actual impacts of an activity which proceeds based on an IEE or CEE. The record developed through these measures needs to be designed to: (a) enable assessments to be made of the extent to which environmental impacts of nongovernmental expeditions are consistent with the Protocol; and (b) provide information useful for minimizing and mitigating those impacts and, where appropriate, on the need for suspension, cancellation, or modification of the activity. Moreover, an operator needs to monitor key environmental indicators for an activity proceeding based on a CEE. An operator may also need to carry out monitoring to assess and verify the impact of an activity for which an IEE would be prepared. For activities that require an IEE, an operator should be able to use procedures currently being voluntarily utilized by operators to provide the required information. Should an activity require a CEE, the operator should consult with the EPA to: (a) identify the monitoring regime appropriate to that activity, and (b) determine whether and how the operator might utilize relevant monitoring data collected by the U.S. Antarctic Program. OFA would consult with the National Science Foundation (NSF) and other interested Federal agencies regarding the monitoring regime.
Environmental documents (
The types of nongovernmental activities currently being carried out (
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Section 8 of the Toxic Substances Control Act (TSCA) (EPA ICR Number 2703.01, OMB Control Number 2070-NEW) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a request to consolidate certain activities currently covered under other existing ICRs. Public comments were previously requested via the
Additional comments may be submitted on or before September 29, 2022.
Submit your comments to EPA, referencing Docket ID No. EPA-HQ-OPPT-2021-0728, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Katherine Sleasman, Regulatory Support Branch (7602M), Office of Chemical Safety and Pollution Prevention, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-1204; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the docket for this ICR. The docket can be viewed online at
This ICR covers reporting and recordkeeping requirements in TSCA section 8, for persons who manufacture, import, or process chemical substances, mixtures, or categories, or distribute them in commerce. The purpose of the ICR activities is to collect data that will help EPA evaluate the potential for human health and environmental risks caused by the manufacture, processing, and distribution in commerce of chemical substances, mixtures, or categories.
Under TSCA section 8(a), persons who manufacture, import, or process certain chemical substances or mixtures, or propose to manufacture, import, or process certain chemical substances or mixtures, are required to comply with the Preliminary Assessment Information Rule (PAIR)—which requires
Under TSCA section 8(c), persons who manufacture, import, process, or distribute in commerce any chemical substance or mixture must keep records of significant adverse reactions to health or the environment, as determined by the Administrator by rule. Allegations of adverse reactions to the health of employees be kept for thirty years, and all other allegations be kept for five years. The rule also prescribes the conditions under which a firm must submit or make the records available to a duly designated representative of the Administrator.
Finally, under TSCA section 8(d), persons, who manufacture, import, process, or distribute in commerce (or propose to manufacture, import, process, or distribute in commerce) certain chemical substances and mixtures, are required to submit to EPA lists and copies of health and safety studies which relate to health and/or environmental effects of the chemical substances and mixtures. To comply with an “8(d)” rule, respondents must search their records to identify any health and safety studies in their possession, make copies of relevant studies, list studies that are currently in progress, and submit this information to EPA.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office requests public nominations of scientific experts to form a Panel to review the updated EJScreen methodology. EJScreen is an environmental justice mapping and screening tool that provides EPA with a nationwide consistent approach for combining environmental and demographic indicators to identify areas with potential environmental justice (EJ) concerns. The SAB EJScreen Review Panel will consider the EJScreen methodology and updated calculations for the EJ indexes released publicly in 2022, as well as other aspects of the calculations. The Panel will also be asked to provide recommendations and expert input on other components of the tool.
Nominations should be submitted by September 20, 2022 per the instructions below.
Any member of the public who wishing further information concerning this notice may contact Dr. Zaida Figueroa, Designated Federal Officer (DFO), via telephone (202) 566-2643, or email at
EJScreen is an environmental justice mapping and screening tool that provides EPA with a nationally consistent dataset and approach for combining environmental and demographic indicators to identify areas with potential EJ concerns. The data collected and screening tool may be of interest to governmental partners, the public, communities, and a variety of stakeholders as they search for environmental or demographic information. It can also support a wide range of purposes, including scientific research and policy goals. The SAB EJScreen Review Panel will conduct a review of the updated EJScreen methodology. The current methodology underlaying EJScreen was peer reviewed in 2014. EPA is currently updating that methodology and calculations for the EJ indexes, as well as other aspects of the mapping tool calculations including the use of percentiles, representation of the scores, buffer analysis, among other topics, that will be released publicly in 2022. The Panel will also be asked to provide recommendations and expert input on these updates, as well as the demographic index and methods to consider multiple geographies.
For the EPA SAB Staff Office, a balanced review panel includes candidates who possess the necessary domains of knowledge, the relevant scientific perspectives (which, among other factors, can be influenced by work history and affiliation), and the collective breadth of experience to adequately address the charge. In forming the expert panel, the SAB Staff Office will consider public comments on the Lists of Candidates, information provided by the candidates themselves, and background information independently gathered by the SAB Staff Office. Selection criteria to be used for panel membership include: (a) Scientific and/or technical expertise, knowledge, and experience (primary factors); (b) availability and willingness to serve; (c) absence of financial conflicts of interest; (d) absence of an appearance of a loss of impartiality; (e) skills working in committees, subcommittees and advisory panels; and (f) for the panel as a whole, diversity of expertise and scientific points of view.
The SAB Staff Office's evaluation of an absence of financial conflicts of interest will include a review of the “Confidential Financial Disclosure Form for Environmental Protection Agency Special Government Employees” (EPA Form 3110-48). This confidential form is required and allows government officials to determine whether there is a statutory conflict between a person's public responsibilities (which include membership on an EPA federal advisory committee) and private interests and activities, or the appearance of a loss of impartiality, as defined by federal regulation. The form may be viewed and downloaded through the “Ethics Requirements for Advisors” link on the SAB website at
The approved policy under which the EPA SAB Office selects members for subcommittees and review panels is described in the following document: Overview of the Panel Formation Process at the Environmental Protection Agency Science Advisory Board (EPA-SAB-EC-02-010), which is posted on the SAB website at
Monday, September 12, 2022, 12:00 p.m. Eastern Time.
Equal Employment Opportunity Commission Headquarters, 131 M St. NE, Washington, DC 20507. The meeting will be held as a live streamed videoconference, with an option for listen-only audio dial-in by telephone. The public may observe the videoconference or connect to the audio-only dial-in by following the instructions that will be posted on
The following item will be considered at the meeting:
Please telephone (202) 921-2750, or email
Shelley Kahn, Acting Executive Officer, (202) 921-3061.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before October 31, 2022. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
The Commission requests this information in order to make recommendations to the U.S. Department of State for granting recognized private operating agency (RPOA) status to requesting entities. The Commission does not require entities to request RPOA status. Rather, this is a voluntary application process for use by companies that believe that obtaining RPOA status will be beneficial in persuading foreign governments to allow them to conduct business abroad. RPOA status also permits companies to join the International Telecommunication Union's (ITU's) Telecommunications Sector, which is the standards-setting body of the ITU.
The information furnished in RPOA requests is collected pursuant to 47 CFR 63.701 of the Commission's rules. Entities submit these applications on a voluntary basis. The collection of information is a one-time collection for each respondent. Without this information collection, the Commission's policies and objectives for assisting unregulated providers of enhanced services to enter the market for international enhanced services would be thwarted.
The information collection requirements contained in this collection require are as follows: (1) Local Multipoint Distribution Systems (LMDS) licensees to serve copies of their applications on all Non-Geostationary Mobile Satellite Service (NGSO/MSS) applicants (Section 101.147) and (2) NGSO/MSS feeder link earth stations must specify a set of geographic coordinates for location of these earth stations, 15 days after the release of a public notice announcing
The information is used by the Commission and other applicants and/or licensees in the 28 GHz band to facilitate technical coordination of systems among applicants and/or licensees in the 28 GHz band. Without such information, the Commission could not implement the Commission's band plan. Affected applicants and licensees are required to provide the requested information to the Commission and other third parties whenever they seek authority to provide service in the 28 GHz band. The frequency of filing is, in general, determined by the applicant or licensees. If this information is compiled less frequently or not filed in conjunction with our rules, applicants and licensees will not obtain the authorization necessary to provide telecommunications services. Furthermore, the Commission would not be able to carry out its mandate as required by statute and applicants and licensees would not be able to provide service effectively.
The purposes of this collection are to obtain information necessary for licensing operators of Mobile-Satellite Service (MSS) networks to provide ancillary services in the U.S. via terrestrial base stations (Ancillary Terrestrial Components, or ATCs); obtain the legal and technical information required to facilitate the integration of ATCs into MSS networks in the L-Band and the 1.6/2.4 GHz Bands; and to ensure that ATC licensees meet the Commission's legal and technical requirements to develop and maintain their MSS networks and operate their ATC systems without causing harmful interference to other radio systems.
This information collection is used by the Commission to license commercial ATC radio communication services in the United States, including low-power ATC. The revised collection is to be used by the Commission to regulate equipment manufacturers and licensees of low-power ATC networks. Without the collection of information that would result from these final rules, the Commission would not have the necessary information to grant entities the authority to operate commercial ATC stations and provide telecommunications services to consumers.
Without this collection of information, the Commission would not have critical information such as a change in a controlling interest in the ownership of the licensee. The Commission would not be able to carry out its duties under the Communications Act and to determine the qualifications of applicants to provide international telecommunications service, including applicants that are affiliated with foreign entities, and to determine whether and under what conditions the authorizations are in the public interest, convenience, and necessity. Furthermore, without this collection of information, the Commission would not be able to maintain effective oversight of U.S. providers of international telecommunications services that are affiliated with, or involved in certain co-marketing or similar arrangements with, foreign entities that have market power.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before October 31, 2022. If you anticipate that you will be submitting comments but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Cathy Williams, FCC, via email to
For additional information about the information collection, contact Cathy Williams at (202) 418-2918.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it can further reduce the information collection burden for small business concerns with fewer than 25 employees.
Written comments and recommendations for the proposed information collection should be submitted on or before September 29, 2022.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The information collection requirements that are approved under this information collection are contained in 95.2593, 95.2595 and 95.2509 which relate to the Medical Device Radiocommunication Service (MedRadio). The former rule sections for this collection were 95.1215, 95.1217, 95.1223 and 95.1225.
The information is necessary to allow the coordinator and parties using the database to contact other users to verify information and resolve potential conflicts. Each user is responsible for determining in advance whether new devices are likely to cause or be susceptible to interference from devices already registered in the coordination database.
FCC Form 611-T is used by DE licensees to file an annual report, pursuant to Section 1.2110(n) of the Commission's rules, related to eligibility for designated entity benefits.
The information collected will be used to ensure that only legitimate small businesses reap the benefits of the Commission's designated entity program. Further, this information will assist the Commission in preventing companies from circumventing the objectives of the designated entity eligibility rules by allowing us to review: (1) The FCC 609-T applications seeking approval for “reportable eligibility events” and (2) the FCC Form 611-T annual reports to ensure that licensees receiving designated entity benefits are in compliance with the Commission's policies and rules.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than September 29, 2022.
1. Bancorp of New Glarus, Inc., New Glarus, Wisconsin; to acquire First National Bank at Darlington, Darlington, Wisconsin.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Evaluation of Safe Spaces in CDC-directly funded Community-based Organizations (CBOs). This project is designed to collect data from persons attending safe spaces, CBO staff perceptions of safe spaces, and descriptions of those spaces selected from 10 CBOs funded through Comprehensive High-Impact HIV Prevention Programs for young men of Color who have sex with men and young transgender persons of Color.
CDC must receive written comments on or before October 31, 2022.
You may submit comments, identified by Docket No. CDC-2022-0104 by either of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS H21-8, Atlanta, Georgia 30329; Telephone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected;
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Evaluation of Safe Spaces in CDC-directly funded Community-based Organizations (CBOs)—New—National Centers for HIV, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
The CDC-funded HIV prevention program for young men of Color who have sex with men (YMSM) and young transgender persons (YTG) of Color employs an innovative strategy to address the social determinants of health (
The purpose of this data collection is to assess the implementation of safe spaces, participant perceptions about the role of space spaces in addressing social determinants of health and promoting HIV prevention and care, and the association between safe space implementation and HIV process and outcome indicators. The primary objectives of this data collection are to obtain data to: (a) describe the implementation of safe spaces; (b) to describe the impact on participants served; and (c) identify successful models for safe spaces to inform other CBOs and CDC.
By describing safe spaces and their impact on HIV-related outcomes, this data collection provides an important data source for evaluating a public
The CDC requests approval for a two-year information collection. Data are collected through surveys with participants of the safe spaces and phone-based interviews conducted with safe space staff. Persons attending the safe spaces are young men who have sex with men and young transgender persons of Color over the age of 18. A brief eligibility screener will be used to determine eligibility for participation in the participant survey. No other federal agency systematically collects this type of information from persons attending safe spaces. These data may inform prevention program development and monitoring at both the local and national levels.
CDC estimates that this data collection will involve, eligibility screening for 1,250 persons, and a participant survey for 1,000 eligible respondents at 10 CBOs, annually. At each CBO, two staff members will be interviewed about their perceptions of safe spaces, totaling 20 staff interviews. CDC requests OMB approval for an estimated 369 annual burden hours. Participation of respondents is voluntary and there is no cost to the respondents other than their time.
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting of the National Institute of Biomedical Imaging and Bioengineering Special Emphasis Panel.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting of the Pediatrics Study Section.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Notice is hereby given of a change in the meeting of the National Deafness and Other Communication Disorders Advisory Council, September 08, 2022, 10:00 a.m. to September 09, 2022, 01:00 p.m., PORTER NEUROSCIENCE RESEARCH CENTER, Building 35A, 35 Convent Drive, Bethesda, MD, 20892 which was published in the
This notice is being amended to change the meeting location from Building 35 to a virtual meeting. The URL link to the meeting is
National Institutes of Health, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995 to provide opportunity for public comment on proposed data collection projects, the Office of Clinical Research (OCR), Office of the Director (OD), National Institutes of Health, will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.
Comments regarding this information collection are best assured of having their full effect if received within 60 days of the date of this publication.
To obtain a copy of the data collection plans and instruments, submit comments in writing, or request more information on the proposed project, contact: Dr. Anne Zajicek, M.D., Pharm.D., Deputy Director, Office of Clinical Research, NIH Office of the Director, Building 1, Room 208A, MSC-0155, Bethesda, Maryland, 20892 or call non-toll-free number (301) 480-9913 or Email your request, including your address to:
Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires: written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimizes the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
OMB approval is requested for three years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 3,674.
Notice is hereby given of a change in the meeting of the National Heart, Lung, and Blood Advisory Council, September 13, 2022, 09:00 a.m. to September 13, 2022, 05:00 p.m., National Institutes of Health, Rockledge I, 6705 Rockledge Drive, Bethesda, MD 20892 which was published in the
This notice is being amended to remove the visitor testing requirement for entering NIH facilities due to CDC updates published August 11, 2022, regarding screening testing. The meeting is open to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
In compliance with the Paperwork Reduction Act of 1995, the National Institutes of Health (NIH) has submitted to the Office of Management and Budget (OMB) a request for review and approval of the information collection listed below.
Comments regarding this information collection are best assured of having their full effect if received within 30-days of the date of this publication.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request more information on the proposed project or to obtain a copy of the data collection plans and instruments, contact: Matthew Lockhart, Director, Division of Loan Repayment, National Institutes of Health, 6700B Rockledge Dr., Room 2300 (MSC 6904), Bethesda, Maryland 20892-6904 or email your request, including your address to
This proposed information collection was previously published in the
OMB approval is requested for three years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 23,952.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Flood hazard determinations, which may include additions or modifications of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or regulatory floodways on the Flood Insurance Rate Maps (FIRMs) and where applicable, in the supporting Flood Insurance Study (FIS) reports have been made final for the communities listed in the table below. The FIRM and FIS report are the basis of the floodplain management measures that a community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the Federal Emergency Management Agency's (FEMA's) National Flood Insurance Program (NFIP).
The date of January 26, 2023 has been established for the FIRM and, where applicable, the supporting FIS report showing the new or modified flood hazard information for each community.
The FIRM, and if applicable, the FIS report containing the final flood hazard information for each community is available for inspection at the respective Community Map Repository address listed in the tables below and will be available online through the FEMA Map Service Center at
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the new or modified flood hazard information for each community listed. Notification of these changes has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Insurance and Mitigation has resolved any appeals resulting from this notification.
This final notice is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.
Interested lessees and owners of real property are encouraged to review the new or revised FIRM and FIS report available at the address cited below for each community or online through the FEMA Map Service Center at
The flood hazard determinations are made final in the watersheds and/or communities listed in the table below.
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
Comments are to be submitted on or before November 28, 2022.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location
You may submit comments, identified by Docket No. FEMA-B-2266, to Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
Office of Policy Development and Research, HUD.
Announcement notice.
In accordance with the Paperwork Reduction Act, HUD has requested from the Office of Management and Budget (OMB) emergency approval of the information collection described in this notice. HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 14 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna Guido, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna Guido at
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in section A.
The Consolidated Appropriations Act 2022 gave $25 million to the Department of Transportation (DOT) for a Thriving Communities program. HUD was directed, in the report language to the Appropriations Act, to use $5 million of its technical assistance funding to work with the Department of Transportation “to ensure housing and infrastructure development is taken into consideration as part of the thriving communities program.”
The emergency review is needed to fulfill Congress' intent for the HUD to expeditiously provide technical assistance to jurisdictions, which are currently designing and implementing infrastructure investments, to support them in to meet critical housing needs, particularly for their low-income residents. Given the critical role housing plays in the well-being of individuals and communities, this opportunity to support more housing during this time of historic investment is essential.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of Policy Development and Research, Chief Data Officer, HUD.
Correction; notice.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal. This notice replaces the notice that was publish on August 4, 2022.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Anna P. Guido, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410, mail to:
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) If the information will be processed and used in a timely manner;
(3) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(4) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(5) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Housing- Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, Office of Policy Development and Research, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Inter-American Foundation.
Notice.
The Inter-American Foundation (IAF), as part of its continuing efforts to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps ensure that requested data is provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents is properly assessed.
Written comments must be submitted to the office listed in the address section below within 60 days from the date of this publication in the
Send comments to Kaitlin Stastny, Inter-American Foundation, via email to
The IAF works to promote sustainable development in Latin America and the Caribbean by offering small investments directly to civil society organizations through funding actions, such as grants and cooperative agreements. By gathering perceptions from grantees on how the IAF works as a funder, the IAF is able to assess its performance and identify opportunities for improvements. The IAF seeks to work with a contractor to independently carry out this survey with IAF grantees. The contractor will use an online survey with a set of standardized questions focused primarily on grant processes, such as the approach to grant selection, the time lapse between selection and commitment, and reporting and evaluation. The contractor will also apply these standardized questions to other funders, thus providing the IAF with findings relative to that of other comparable organizations. The IAF is particularly interested in comments which:
Bureau of Land Management, Interior.
Notice of meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Wild Horse and Burro Advisory Board (Board) will hold a public meeting.
October 4-6, 2022, from 8:00 a.m. to 5:30 p.m. Pacific Time (PT).
The Board will meet in-person in Phoenix, Arizona at the BLM National Training Center located at 9828 N 31st Avenue. This meeting is open to the public. Members of the public are invited to attend in-person or virtually. The virtual platform will be held via the Zoom Webinar. Information on how to register, login, and participate in the virtual platform will be announced at least 15 days in advance of the meeting at
The final agenda will also be posted 2 weeks prior to the meeting and can be found on the following website:
Dorothea Boothe, Wild Horse and Burro Program Coordinator: telephone: (602) 906-5543, email:
The Board advises the Secretary of the Interior, through the BLM Director, and the Secretary of Agriculture, through the Chief of the U.S. Forest Service on matters pertaining to the management and protection of wild, free-roaming horses and burros on the Nation's public lands. The Board operates under the authority of 43 CFR 1784.
Agenda may be subject to change.
Beyond live captioning, any person(s) with special needs, such as for an auxiliary aid, interpreting service, assistive listening device, or materials in an alternate format, must notify Ms. Boothe 2 weeks before the scheduled meeting date. It is important to adhere to the 2-week notice to allow enough time to arrange for the auxiliary aid or special service.
The BLM and the U.S. Forest Service (USFS) welcome comments from all interested parties. Members of the public participating virtually and in-person will have opportunities to make comments to the Board regarding the Wild Horse and Burro Program on Tuesday, October 4, from 3:00 p.m. to 4:00 p.m. PT, Wednesday, October 5, from 1:30 p.m. to 2:30 p.m. PT, and on Thursday, October 6, from 1:30 p.m. to 3:30 p.m. PT. To accommodate all individuals interested in providing comments, individuals must register with the BLM at least 3 days in advance of the meetings. To register, please go to the website listed in the
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, the BLM cannot guarantee that it will be able to do so.
Bureau of Land Management, Interior. USDA Forest Service, Agriculture.
Notice of intent.
In compliance with the National Environmental Policy Act of 1969, as amended (NEPA), the Federal Land Policy and Management Act of 1976, as amended (FLPMA), the National Forest Management Act of 1976 (NFMA), and Presidential Proclamation 10285, the Bureau of Land Management (BLM) Utah State Director and the U.S. Department of Agriculture Forest Service (USDA Forest Service) Manti-La Sal National Forest Supervisor intend to revise a resource management plan (RMP) with an associated environmental impact statement (EIS) for the Bears Ears National Monument (BENM) and by this notice announce the beginning of the scoping period to solicit public comments and identify issues, provide the planning criteria for public review, and issue a call for nominations for areas of critical environmental concern (ACECs) on lands managed by the BLM. The BLM is leading the NEPA process in partnership with the USDA Forest Service, which will make a decision for the USDA Forest Service-managed lands based on the analysis in the EIS. The Bears Ears Commission will play an integral role in the development of the EIS and RMP. The RMP revision would replace the BLM Indian Creek and Shash Jáa Monument Management Plans (2020) and the Approved Plan Amendment for the Manti-La Sal National Forest Bears Ears National Monument Shash Jáa Unit (2020). The RMP revision would also replace the applicable portions of the BLM's Monticello RMP (2008) and Moab RMP (2008) and Manti-La Sal National Forest's Land and Resource Management Plan (1986).
The BLM requests the public submit comments concerning the scope of the analysis, potential alternatives and identification of relevant information, studies, and ACEC nominations by October 31, 2022. To afford the BLM the opportunity to consider this information and ACEC nominations raised by commenters in the Draft RMP/EIS, please ensure your comments are received prior to the close of the 60-day scoping period or 15 days after the last public meeting, whichever is later.
The BLM also requests the public submit comments on the planning criteria by the same date identified above. The planning criteria will be made available to the public within the first 30 days of the 60-day comment period to ensure the public has at least 30 days to comment on the planning criteria as required by the planning regulations listed in 43 CFR 1610.2(e). To afford the BLM the opportunity to consider comments on the planning criteria in the Draft RMP/EIS, please ensure your comments are received prior to the close of the 60-day scoping period or 15 days after the last public meeting, whichever is later.
You may submit comments on issues and planning criteria related to the BENM RMP and nominations of new ACECs by any of the following methods:
•
•
Documents pertinent to this proposal may be examined online at
Scott M. Whitesides, Project Manager, telephone (801) 539-4054; address Bureau of Land Management Utah, 440 West 200 South Suite 500, Salt Lake City, Utah 84101; email
This document provides notice that the BLM Utah State Director and USDA Forest Service Manti-La Sal National Forest Supervisor intend to prepare an RMP with an associated EIS for the BENM, announces the beginning of the scoping process, seeks public input on issues and relevant planning criteria, and invites the public to nominate ACECs on lands administered by the BLM. The planning area is located in San Juan County, Utah, and encompasses approximately 1.36 million acres of Federally administered lands between the BLM (1,074,908 acres) and the USDA Forest Service (289,040 acres). While most of the BLM-adminstered lands are within the BLM Monticello Field Office planning area, approximately 8,835 acres are located within the BLM Moab Field Office planning area. Within the exterior boundary of the BENM, there are private inholdings, land owned by the State of Utah School and Institutional Trust Lands Administration (SITLA), and the entirety of Natural Bridges National Monument of the National Park Service. These lands are not part of the Bears Ears National Monument and are not included in the planning effort.
This Resource Management Plan will provide a management framework, including goals, objectives, and management direction, to guide Monument management. Purposes and needs serve to frame issue identification, alternatives development, and effects analyses. The following purposes and desired outcomes are set forward explicitly in Presidential Proclamation 10285 or have been identified based on key present and historical BENM management challenges. Planning for these desired outcomes will be crucial for development of an RMP that provides direction for addressing critical management challenges. Associated needs and challenges that the RMP will address are also summarized.
Recreational visitation is an important driver of the local economy, with the Indian Creek area becoming world-famous for rock climbing and the increased popularity of off-highway vehicle use, cultural tourism, and other forms of recreation. The increased demand on BENM's resources, and subsequently, the Monument's objects and values, poses a challenge to balance the wide variety of uses of the landscape with the protection of the Monument's objects and values. Planning decisions can define resource uses and land designations to help resolve conflicts between various uses and resource protection.
The BLM and USDA Forest Service will analyze alternatives that explore and evaluate different ways of achieving the purpose and need listed above. The alternatives will explore different outcomes to be addressed during this planning effort to understand the trade-offs of different land management approaches. The BLM and USDA Forest Service welcome comments on all preliminary alternatives, as well as suggestions for additional alternatives.
The planning criteria guide the planning effort and lay the groundwork for effects analysis by identifying the preliminary issues and their analytical frameworks. Preliminary issues for the planning area have been identified by BLM and USDA Forest Service personnel and from early engagement conducted for this planning effort with Federal, State, and local agencies, Tribal Nations, and stakeholders. The BLM and USDA Forest Service have identified several preliminary issues for this planning effort's analysis and will provide them for public review as part of the planning criteria within the timeframe identified in
Consistent with protection of BENM objects and values identified in Proclamation 10285, implementation of a new RMP may impact—either beneficially or adversely—resources and uses within the BENM, including recreation, livestock grazing, soils, water, vegetation, cultural and historic resources, paleontological resources, visual resources, designated areas, social and economic values, and other human and environmental resources.
The BLM and USDA Forest Service will provide additional opportunities for public participation consistent with NEPA and BLM and USDA Forest Service land use planning processes, including a 90-day comment period on the Draft RMP/EIS, then a 30-day public protest period, as well as a concurrent 60-day Governor's consistency review, on the Proposed RMP. The Draft RMP/EIS is anticipated to be ready for public review in spring 2023, and the Proposed RMP/Final EIS is anticipated to be available for public protest in winter 2024, with an Approved RMP and Record of Decision (ROD) completed in spring 2024.
This Notice of Intent initiates the scoping period and public review of the planning criteria, which guide the development and analysis of the Draft RMP/EIS.
The BLM and USDA Forest Service will hold a total of five scoping meetings. Two scoping meetings will be held virtually. Three scoping meetings will be conducted in-person: one in Blanding, Utah, one in Monument Valley, Navajo Nation, and one in Farmington, New Mexico. Details of all meetings will be announced once known. In compliance with Department of the Interior public health guidelines, the BLM and USDA Forest Service may need to hold public meetings in a virtual format if county-level transmission of COVID-19 is “high” at the time of the public meetings. In that case, the BLM and USDA Forest Service will hold five virtual public meetings.
The specific dates and locations of these scoping meetings will be announced at least 15 days in advance through local media, social media, newspapers, and the ePlanning website (see
The ePlanning website (see
There are five ACECs within BENM: San Juan, Lavender Mesa, Shay Canyon, Indian Creek, and Valley of the Gods.
This notice invites the public to comment on whether to retain the existing ACECs and whether to nominate areas on BLM-administered lands for ACEC consideration. To assist the BLM in evaluating nominations for consideration in the Draft RMP/EIS, please provide supporting descriptive materials, maps, and evidence of the relevance and importance of resources or hazards by the close of the public scoping period to facilitate timely evaluation (see
The Monument planning process will provide Tribal Nations multiple ways to engage, including, but not limited to, through government-to-government coordination and consultation, consultation under section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C. 306108), participation as cooperating agencies, and through the Bears Ears Commission. Presidential Proclamation 10285 reconstituted the Bears Ears Commission with the terms, conditions, and obligations identified in Presidential Proclamation 9558 to provide guidance and recommendations for the development of the management plan and incorporate traditional and historical knowledge. The Bears Ears Commission is a self-governed commission consisting of one elected officer each from the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation, and Pueblo of Zuni, designated by the officers' respective Tribes. On June 18, 2022, the BLM, USDA Forest Service, and the five Tribal Nations of the Bears Ears Commission signed an inter-governmental cooperative agreement to obtain input from the Commission for the development and implementation of the Monument Management Plan. The agreement also facilitates coordination and cooperative management of the federal lands within the BENM to provide consistent, effective, and collaborative management of the lands and resources. The BLM and USDA Forest Service anticipate engagement
Federal, State, and local agencies, along with Tribal Nations, may request or be asked by the BLM to participate as cooperating agencies. At this time, the BLM has identified the following potential cooperating agencies:
• National Park Service,
• U.S. Fish and Wildlife Service,
• U.S. Army Corps of Engineers,
• U.S. Bureau of Reclamation,
• U.S. Department of Energy,
• Utah's Public Lands Policy Coordinating Office,
• SITLA,
• Utah State Historic Preservation Office,
• San Juan County,
• Grand County,
• City of Blanding,
• Town of Bluff,
• City of Monticello, and
• All 32 affiliated Tribal Nations that wish to participate.
The Utah State Director and the Manti-La Sal National Forest Supervisor are the deciding officials for this planning effort.
The nature of the decision to be made will be the State Director's and the Forest Supervisor's selection of land use planning decisions for managing BLM- and USDA Forest Service-administered lands, respectively, within the BENM that protect the objects and values identified in Proclamation 10285. Uses on the BENM may be allowed to the extent they are consistent with Proclamation 10285 and the protection of the objects and values within the BENM.
The USDA Forest Service gives notice that it intends to use the BLM's administrative review procedures, as provided by the USDA Forest Service 2012 Planning Rule, at 36 CFR 219.59(b). The review procedures would include a joint response from BLM and the USDA Forest Service to those who file for administrative review. If any project or site-specific decision is made in the RMP, such decision would be subject to the USDA Forest Service project-level administrative review process at 36 CFR 218.
The BLM and USDA Forest Service will use an interdisciplinary approach in developing the RMP/EIS to consider the variety of resource issues and concerns identified. Specialists with expertise in various disciplines, such as cultural resources, Native American concerns, paleontology, minerals, lands/access, recreation, special designations, wildlife, livestock grazing, soils, water resources, vegetation, rangeland management, fisheries, fire management, woodlands/forestry, socioeconomics, environmental justice, visual resources, night sky, soundscapes, air quality, and climate change will be involved in the planning process.
The BLM and USDA Forest Service will identify, analyze, and consider mitigation to address the reasonably foreseeable impacts to resources from the proposed RMP and all analyzed alternatives and, in accordance with 40 CFR 1502.14(e), include appropriate mitigation measures not already included in the proposed plan or alternatives. Mitigation may include avoidance, minimization, rectification, reduction or elimination over time, and compensation, and may be considered at multiple scales, including the landscape scale.
The BLM and USDA Forest Service will utilize and coordinate the NEPA and land use planning processes for this planning effort to help support procedural requirements under the Endangered Species Act (16 U.S.C. 1536) and section 106 of the NHPA, as provided in 36 CFR 800.2(d)(3), including the public involvement requirements of section 106. Information about historic and cultural resources and threatened and endangered species within the area potentially affected by the proposed plan will assist the BLM and USDA Forest Service in identifying and evaluating impacts to such resources.
The BLM and USDA Forest Service will consult with Tribal Nations on a government-to-government basis in accordance with Executive Order 13175 and applicable Departmental policies. Tribal concerns, including impacts on American Indian trust assets and potential impacts on cultural resources, will be given due consideration. The BLM and USDA Forest Service intend to hold a series of government-to-government consultation meetings beginning during the public scoping period. The BLM and USDA Forest Service will send invitations to potentially affected Tribal Nations at least 30-days prior to the meetings. The BLM and USDA Forest Service will provide additional opportunities for government-to-government consultation during the NEPA process.
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.
National Park Service, Interior.
Notice.
The University of Alabama Museums has completed an inventory of human remains and associated funerary objects from the Moundville archeological site (1Tu500) in Hale County, AL, as well as adjacent archeological sites in Hale and Tuscaloosa Counties, AL. In consultation with the appropriate Indian Tribes, the University of Alabama Museums has determined, pursuant to NAGPRA, that there is a cultural affiliation between these human remains and associated funerary objects and the present-day Muskogean-speaking Indian Tribes. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the University of Alabama Museums. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the Indian Tribes listed in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the University of Alabama Museums at the address in this notice by September 29, 2022.
Dr. William Bomar, Executive Director, University of Alabama Museums, Box 870340, Tuscaloosa, AL 35487, telephone (205) 348-7551, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the University of Alabama Museums, Tuscaloosa, AL. The human remains and associated funerary objects were removed from sites in Hale and Tuscaloosa Counties, AL.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the University of Alabama Museums professional staff in consultation with representatives of the Alabama-Quassarte Tribal Town; Coushatta Tribe of Louisiana; Seminole Tribe of Florida (
The human remains and associated funerary objects from Moundville and other sites in Hale and Tuscaloosa Counties, Alabama, that are in the possession of the University of Alabama Museums derive from various investigations and private collection donations primarily dating to the period 1930 to 2008. During its Native American occupation, the Moundville site and the surrounding area were inhabited by several thousand people in a relatively dense occupancy, and over a prolonged period of time. The large-scale excavations undertaken at Moundville, resulted in large numbers of human remains and associated funerary objects removed from their original burial locations, which are currently in the University's possession. The work of subsequent investigations at Moundville contributed to this number, as did excavations at associated sites in Hale and Tuscaloosa Counties, AL.
At an unknown date, human remains representing, at minimum, two individuals were removed from an unknown location in Hale County, AL. The collection contains no additional information as to the origin of the human remains and is simply designated as “1Ha.” Based on morphological characteristics identified through osteological analysis, the human remains are Native American. No known individuals are identified. No associated funerary objects are present.
In the 1930s, human remains representing, at minimum, nine individuals were excavated and removed from Site 1Ha7, the White site, as part of the Black Warrior River Basin Survey conducted by Walter B. Jones of the Alabama Museum of Natural History. The site consists of a mound and associated village with Late Woodland, Miller III and Mississippian, Moundville II phase occupations. No known individuals were identified. No associated funerary objects are present.
In the 1930s, human remains representing, at minimum, one individual were excavated and removed from Site 1Ha11, the Powers site, by the University of Alabama. The site includes evidence of Late Woodland, Miller III phase, and Mississippian occupations. No known individual was identified. The three associated funerary objects include bones and ceramics.
Beginning in 1949, and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 33 individuals were excavated and removed from Site 1Ha19, the Big Prairie Creek site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. The site is attributed to the Late Mississippian/Protohistoric and Moundville IV phase occupations. No known individuals were identified. The 43 lots of associated funerary objects include burial urns, ceramic vessels, ceramic sherds, lithics, faunal bones, daub, and shells.
In the 1930s and again in 1997, human remains representing, at minimum, 13 individuals were excavated and removed from Site 1Tu1, the Pride Place site. The site dates from Late Woodland, West Jefferson phase to the Moundville III phase. No known individuals were identified. The three lots of associated funerary objects include ceramic vessels, ceramic sherds, lithics, red ochre, discoidals, fired clay, sandstone fragments, and a large stone.
In 1932, human remains representing, at minimum, 16 individuals were excavated and removed from Site 1Tu2, the Snows Bend site, as part of the Black Warrior River Basin Survey. The site consists of a large village and is associated with an adjacent mound (Site 1Tu3). It dates to the Late Woodland West Jefferson and Mississippian Moundville II and III phases. No known individuals were identified. The eight lots of associated funerary objects include ceramic vessels and ceramic sherds.
Beginning in 1932 and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 81 individuals were excavated and removed from Site 1Tu4, the Moody Slough site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. The site is attributed to the Late Mississippian/Protohistoric and Moundville IV phase occupations. No known individuals were identified. The 69 lots of associated funerary objects include burial urns, faunal and botanical remains, pottery sherds, incised sandstone, shell ornaments, daub, and lithics.
Beginning in 1931-1932 and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 26 individuals were excavated and removed from Site 1Tu5, the Lon Robertson site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. Curren identified the site as 1Tu93/5, thereby combining two sites in his description. The site is attributed to the
In 1933, human remains representing, at minimum, eight individuals were excavated and removed from Site 1Tu20, the Barger Bluff Shelter site, as part of the Black Warrior River Basin Survey. The site, consisting of a shelter above the Black Warrior River, is likely related to Site 1Tu17, a Mississippian Stage occupation located on the terrace below it. No known individuals were identified. No associated funerary objects are present.
In the 1930s, human remains representing, at minimum, one individual were excavated and removed from Site 1Tu34, an unnamed site on the Black Warrior River. The site is believed to be related to the Moundville (1Tu500), Snows Bend (1Tu2), and 1Tu7 sites. No known individual was identified. No associated funerary objects are present.
Beginning in the 1930s and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 15 individuals were excavated and removed from Site 1Tu42 (1Tu42/43), the Moon Lake site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. The site consists of a Mississippian village (originally identified by Curren as the Wiggins site [1984] and denoted 1Tu43) and a mound (originally documented by Clarence B. Moore (1905) and denoted 1Tu42). Nine of the individuals were excavated and removed from the village area (1Tu43) and six were excavated and removed from the mound (1Tu42). No known individuals were identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum, nine individuals were excavated and removed from Site 1Tu44 (also known as 1Tu346 and 1Tu45), the Jones Ferry site. This site was investigated by Clarence B. Moore in 1905 and documented by the University of Alabama in 1932. In 1979, it was reinvestigated as part of a University of Michigan survey. In the 1980s, it was further reinvestigated by Cailup B. Curren, Jr., at which time it was given the number 1Tu346. The site is comprised of a mound (1Tu44) and the associated village (1Tu45). It is attributed to the Late Woodland, West Jefferson phase and the subsequent Mississippian, Moundville I phase. No known individuals were identified. The three lots of associated funerary objects include ceramics, daub, animal bones, lithic debris, shells, and soil.
Beginning in 1933 and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 49 individuals were excavated and removed from Site 1Tu49, the Fosters Ferry site, also known as the Baker site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. The site is attributed to the Late Mississippian/Protohistoric and Moundville IV phase occupations. No known individuals were identified. The 16 lots of associated funerary objects include ceramic vessels and sherds, many of them attributable to burial urns.
Beginning in the 1930s and continuing as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, four individuals were excavated and removed from Site 1Tu93, an unnamed site on the Black Warrior River, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. Curren identified the site as 1Tu93/5, thereby combining two sites in his description. The site is attributed to the Late Mississippian/Protohistoric, Moundville IV phase occupations. No known individuals were identified. No associated funerary objects are present.
In 1936, human remains representing, at minimum, two individuals were excavated and removed by a member of the Pate family from Site 1Tu103, a feature he identified in a plowed field on a bend in the North River. No known individuals were identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum, one individual buried in a ceramic urn were discovered and removed from Site 1Tu235, a plowed field on Big Sandy Creek near Moundville (1Tu500). The site was documented by Steve Wimberly in 1948. The urn indicates a Late Mississippian/Protohistoric, Moundville IV phase occupation. No known individual was identified. The one associated funerary object is the burial urn.
At an unknown date, human remains representing, at minimum, one individual were removed from Site 1Tu267 on the University of Alabama campus. The collection includes one proximal femur with no additional provenience information. No known individual was identified. No associated funerary objects are present.
In 1976, as part of the program of field work and collections research on the Protohistoric period, human remains representing, at minimum, 18 individuals were excavated and removed from Site 1Tu277 (also identified as 1Tu343), the Phillips site, under the direction of Cailup B. Curren, Jr. The work was carried out initially through the University of Alabama Department of Anthropology and subsequently through the University of Alabama Museums. The site is attributed to the Late Mississippian/Protohistoric and Moundville IV phase occupations. No known individuals were identified. The two associated funerary objects are two burial urns.
Sometime during the period 1977-2003, human remains representing, at minimum, one individual were excavated and removed from Site 1Tu338, an unnamed site located in Big Sandy Bottoms upstream of Moundville. The site was recorded in 1977 and investigated on multiple occasions by the University of Alabama and Panamerican Consultants until 2003. No known individual was identified. No associated funerary objects are present.
During a period from the 1930s to the late 1980s, human remains representing, at minimum, 9,954 individuals were excavated and removed from Site 1Tu500, the Moundville site, during various excavations, including field schools conducted by the University of Alabama, and in the course of efforts to stabilize the shoreline abutting the site. Moundville, a large mound complex on the banks of the Black Warrior River whose occupation spans the Late Woodland and the West Jefferson phase through the Moundville I, II, and III phases, and terminates in the Late Mississippian/Protohistoric Moundville IV phase, has been the subject of two centuries of archeological inquiry. No known individuals were identified. The 1,371 lots of associated funerary objects include pottery vessels, pottery sherds, greenstone celts, stone and copper discoidals, projectile points, beads, graphite, paint, and copper and stone ornaments. Of those lots, 318 lots are currently missing and 264 lots were stolen in 1980.
During the 2000-2003 Black Warrior Valley Survey, human remains representing, at minimum, one
Officials of the University of Alabama Museums have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 10,245 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 1,520 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Alabama-Coushatta Tribe of Texas (
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. William Bomar, Executive Director, University of Alabama Museums, Box 870340, Tuscaloosa, AL 35487, telephone (205) 348-7551, email
The University of Alabama Museums is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
Michigan State University has completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Michigan State University. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Michigan State University at the address in this notice by September 29, 2022.
Judith Stoddart, Associate Provost, University Arts and Collections, Michigan State University, 287 Delta Court, East Lansing, MI 48824, telephone (517) 432-2524, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Michigan State University, East Lansing, MI. The human remains were removed from Kite Pueblo, Torrance County, NM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Michigan State University professional staff in consultation with representatives of the Hopi Tribe of Arizona; Pueblo of Acoma, New Mexico; and the Ysleta del Sur Pueblo of Texas. In addition, the following Indian Tribes were invited to consult but did not participate: Ohkay Owingeh, New Mexico (
In 1994, human remains representing, at minimum, three individuals were removed from Kite Pueblo (LA-199) in Torrance County, NM. Excavations were conducted by Michigan State University (MSU) under the direction of Dr. Alison Rautman. Kite Pueblo is a 50-room masonry-and-adobe pueblo organized around a central plaza that was occupied from A.D. 1250 to 1350. Excavations conducted in the northwest corner of the plaza located a fetal burial, likely around 9.5 lunar months of age. No funerary objects were found in association with the burial. In addition to the burial, isolated human remains belonging to at least two individuals—an adult and juvenile—were recovered from midden and room fill across the site.
The landowner signed a letter requesting the human remains not be reinterred on their property and donating the collections from the site to MSU; however, they were not accessioned into the MSU Museum system. Kite Pueblo was occupied by Ancestral Puebloan people from approximately A.D. 1250 to 1350.
All the individuals listed in this notice are reasonably believed to be Ancestral Puebloan based on the
Officials of Michigan State University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Judith Stoddart, Associate Provost, University Arts and Collections, Michigan State University, 287 Delta Court, East Lansing, MI 48824, telephone (517) 432-2524, email
Michigan State University is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before August 20, 2022, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by September 14, 2022.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before August 20, 2022. Pursuant to section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
Nominations submitted by State or Tribal Historic Preservation Officers:
National Park Service, Interior.
Notice; amendment.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the U.S. Army Corps of Engineers, Mobile District, has amended a Notice of Inventory Completion published in the
Repatriation of the human remains and associated funerary objects in this notice may occur on or after September 29, 2022.
Ms. Alexandria Smith, U.S. Army Corps of Engineers, Mobile District, 109 St. Joseph Street, P.O. Box 2288, Mobile, AL 36628-0001, telephone (251) 690-2728, email
This notice is published as part of the
This notice amends the determinations published in a Notice of Inventory Completion in the
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the U.S. Army Corps of Engineers, Mobile District, has determined that:
• The human remains described in this amended notice represent the physical remains of 23 individuals of Native American ancestry.
• The 5,297 objects described in this amended notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and The Muscogee (Creek) Nation.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to Ms. Alexandria Smith, U.S. Army Corps of Engineers, Mobile District, 109 St. Joseph Street, P.O. Box 2288, Mobile, AL 36628-0001, telephone (251) 690-2728, email
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after September 29, 2022. If competing requests for repatriation are received, the U.S. Army Corps of Engineers, Mobile District, must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The U.S. Army Corps of Engineers, Mobile District, is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
Michigan State University has completed an inventory of human remains, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations and has determined that there is a cultural affiliation between the human remains and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request to Michigan State University. If no additional requestors come forward, transfer of control of the human remains to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Michigan State University at the address in this notice by September 29, 2022.
Judith Stoddart, Associate Provost, University Arts and Collections, Michigan State University, 287 Delta Court, East Lansing, MI 48824, telephone (517) 432-2524, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of Michigan State University, East Lansing, MI. The human remains were removed from Mesa Verde, Montezuma County, CO.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by Michigan State University professional staff in consultation with representatives of the Hopi Tribe of Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Santa Clara, New Mexico; and the Ute Mountain Ute Tribe (
At an unknown date, human remains representing, at minimum, three individuals were removed from Mesa Verde in Montezuma County, CO. They were acquired by Kalamazoo resident Donald Boudeman, who collected Native American material culture in the first half of the 20th century. In July of 1961, some years after her husband's death, Donna Boudeman donated the human remains to the Michigan State University Museum. In February of 2019, during an intertribal consultation, the remains of these individuals were found in the Michigan State University Forensic Anthropology Laboratory. The human remains belong to a child 6.5-8.5 years old and two adult females. No known individuals were identified. No associated funerary objects are present.
Mesa Verde was occupied by Ancestral Puebloan people from approximately A.D. 500 to 1200. All the individuals listed in this Notice of Inventory Completion are reasonably believed to be Puebloan, based on the provenience and documentation associated with the human remains. A relationship of shared group identity can be traced between Ancestral Puebloan people and modern Puebloan groups, based on oral tradition, historical evidence, archeological, geographical, and scientific studies.
Officials of Michigan State University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains should submit a written request with information in support of the request to Judith Stoddart, Associate Provost, University Arts and Collections, Michigan State University, 287 Delta Court, East Lansing, MI 48824, telephone (517) 432-2524, email
Michigan State University is responsible for notifying The Tribes that this notice has been published.
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Katherine M. Hiner, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at
The Commission has received a complaint and a submission pursuant to § 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Daedalus Prime LLC on August 23, 2022. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into
Proposed respondents, other interested parties, and members of the public are invited to file comments on any public interest issues raised by the complaint or § 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions on the public interest must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. Submissions should refer to the docket number (“Docket No. 3637”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of §§ 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (the “Commission”) has determined not to review an order (Order No. 75) issued by the presiding administrative law judge (“ALJ”) denying the respondents' motion for sanctions and to deny a motion for sanctions filed by complainant DivX, LLC. Both sanctions proceedings are hereby terminated.
Carl P. Bretscher, Office of the General
The Commission instituted the underlying investigation on October 19, 2020, based on a complaint, as supplemented, filed by DivX, LLC (“DivX”) of San Diego, California. 85 FR 66355 (Oct. 19, 2020). The complaint alleges a violation of section 337 of the Tariff Act, as amended, 19 U.S.C. 1337 (“Section 337”), from the importation, sale for importation, or sale in the United States after importation of certain video processing devices, components thereof, and digital smart televisions containing the same by reason of infringement of one or more asserted claims of U.S. Patent Nos. 10,212,486 (“the '486 patent”); 8,832,297; 10,412,141; and 10,484,749.
The Commission's notice of investigation names the following respondents: Samsung Electronics Co., Ltd. of Gyeonggi-do, Korea; Samsung Electronics America, Inc. of Ridgefield Park, New Jersey; Samsung Electronics HCMC CE Complex Co., Ltd. of Ho Chi Minh City, Vietnam (collectively, “Samsung”); LG Electronics Inc. of Seoul, Korea; LG Electronics U.S.A., Inc. of Englewood Cliffs, New Jersey (collectively “LG”); MediaTek, Inc. of Hsinchu City, Taiwan; MediaTek USA Inc. of San Jose, California; MStar Semiconductor, Inc. of Hsinchu Hsien, Taiwan (collectively, “MediaTek”); Realtek Semiconductor Corp. of Hsinchu, Taiwan (“Realtek”); TCL Corporation of Huizhou, Guangdong, China; TCL Technology Corporation of Huizhoug, Guangdong, China; TCL Electronics Holdings Ltd. of Shenzhen, Guangdong, China; TTE Technology, Inc. of Corona, California; Shenzhen TCL New Technologies Co. of Shenzhen, Guangdong, China; TCL King Electrical Appliances (Huizhou) Co. Ltd. of Huizhou, Guangdong, China; TCL MOKA International Ltd. of Sha Tin, New Territories, Hong Kong; and TCL Smart Device (Vietnam) Co., Ltd. of Bac Tan Uyen District, Binh Duong Province, Vietnam (collectively, “TCL”).
The Commission partially terminated the investigation with respect to certain patents and patent claims withdrawn by DivX. Order No. 25 (Jan. 15, 2021),
On February 8, 2021, DivX served its initial infringement contentions, which included allegations that RealTek infringed the asserted '486 patent.
On March 12, 2021, the presiding administrative law judge (“ALJ”) issued a
On July 6, 2021, DivX filed an unopposed motion to terminate the investigation with respect to RealTek due to withdrawal of the complaint. The presiding ALJ orally granted DivX's motion and instructed RealTek not to participate in the evidentiary hearing. The evidentiary hearing was held from July 8-15, 2021.
On August 4, 2022, the Commission determined not to review an initial determination (Order No. 67) terminating RealTek from the investigation due to withdrawal of the complaint. Order No. 67 (July 16, 2021),
On October 4, 2021, former respondent RealTek filed a motion for sanctions against DivX, pursuant to Commission Rules 210.4 and 210.25(b) (19 CFR 210.4, 210.25(b)), for alleging misleading the ALJ and making misrepresentations regarding its infringement contentions. On October 14, 2021, DivX filed its opposition to RealTek's motion.
On April 19, 2022, DivX and TCL, the last remaining respondent, jointly moved to terminate the investigation based on a settlement agreement. On May 24, 2022, the Commission determined not to review an initial determination (Order No. 76) granting the joint termination motion. Order No. 76 (April 22, 2022),
On April 22, 2022, the ALJ issued an order denying RealTek's sanctions motion. Order No. 75 (April 22, 2022). In its May 24, 2022, notice terminating the investigation, the Commission set a briefing schedule for petitions for review of Order No. 75, pursuant to Commission Rule 210.25(d) (19 CFR 210.25(d)). 87 FR at 32185.
On June 1, 2022, RealTek filed a petition for review of Order No. 75, pursuant to the Commission's schedule. On June 8, 2022, DivX filed its opposition to RealTek's petition.
On June 16, 2022, DivX filed a motion for sanctions against RealTek stemming for its filing of its petition for review of Order No. 75. On June 27, 2022, RealTek filed its opposition to DivX's motion for sanctions.
Upon consideration of Order No. 75, the parties' submissions, and the evidence of record, the Commission has determined not to review Order No. 75. The sanctions proceeding (Sanctions Proceeding I) is hereby terminated.
Upon consideration of DivX's motion for sanctions, RealTek's opposition thereto, and the evidence of record, the Commission has also determined to deny DivX's motion for sanctions. The sanctions proceeding (Sanctions Proceeding II) is hereby terminated.
The Commission voted to approve this determination on August 24, 2022.
The authority for the Commission's determinations is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
Notice is hereby given that, on July 25, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Xilinx, San Jose, CA; and Deep AI Technologies, Caesarea, ISRAEL have withdrawn as parties from this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and MLCommons intends to file additional written notifications disclosing all changes in membership.
On September 15, 2020, MLCommons filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 10, 2022. A notice was published in the
Notice is hereby given that, on August 1, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Specifically, the following entities have become members of the Forum: ONEiO, Helsinki, FINLAND; UBiqube, Dublin, IRELAND; AOE GmbH, Wiesbaden, GERMANY; Yupiik, Montpellier, FRANCE; Liberty Networks Germany GmbH, Köln, GERMANY; TDC NET A/S, København, DENMARK; Oxio, Québec, CANADA; Delta Partners FZ LLC, Dubai, UNITED ARAB EMIRATES; Liberty Latin America, Denver, CO; EXFO Inc, Québec, CANADA; VSE NET GmbH, Saarbrücken, GERMANY; Gomibo Group, Groningen, NETHERLANDS; Workato Europe SA, Barcelona, SPAIN; Arrcus Inc., San Jose, CA; PrologMobile, Louisville, CO; Shaanxi Normal University, Xi'an, PEOPLE'S REPUBLIC OF CHINA; Nanjing University, Nanjing, PEOPLE'S REPUBLIC OF CHINA; Nanjing Howso Technology Co., LTD, Nanjing, PEOPLE'S REPUBLIC OF CHINA; Beijing Tianyuan DIC Information Technology Co. Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; Shanghai Fudata Technology Co. Ltd, Shanghai, PEOPLE'S REPUBLIC OF CHINA; Beijing Baidu Netcom Science Technology Co., Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; Beijing Ultrapower Software Co., Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; Business-intelligence of Oriental Nations Corporation Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; Telekom Slovenije, Ljubljana, SLOVENIA; Gn0man, Glen Ellyn, IL; InCyan Ltd, Bath, UNITED KINGDOM; Separate Reality Ltd, Newcastle Upon Tyne, UNITED KINGDOM; Türkiye'nin Otomobili Girisim Grubu Sanayi ve Ticaret Anonim Sirketi, Kocaeli, TURKEY; MTN South Africa, Randburg, SOUTH AFRICA; Chorus New Zealand Limited, Wellington, NEW ZEALAND; Persistent Systems Ltd, Pune, INDIA; Mascom Wireless, Gabarone, BOTSWANA.
Also, the following members have changed their names: MetroNet, Metronet, Evansville, IN; Beyond by BearingPoint, Beyond Now, Graz, AUSTRIA; Ikanotis Partners Ltd, Datapply.ai, Nicosia, CYPRUS; Hydro One Telecom, Acronym Solutions Inc., Etobicoke, CANADA.
In addition, the following parties have withdrawn as parties to this venture: Asiainfo International (H.K.) Limited, HONG KONG-CHINA; Bulb Technologies Ltd., Zagreb, CROATIA; B-YOND, Frisco, TX; Claro Chile, Santiago, CHILE; Confluent Europe, London, UNITED KINGDOM; ETI Software Solutions, Norcross, GA; Eureka.ai, Bellevue, WA; Federos, Frisco, TX; HITSS SOLUTIONS, S.A. DE C.V., Col. Miguel Hidalgo, MEXICO; Network Operations and Management Lab, Institute for Network Sciences and Cyberspace, Tsinghua University, Beijing, PEOPLE'S REPUBLIC OF CHINA; Neural Technologies, Petersfield, UNITED KINGDOM; NewAgent Business Consulting and Solutions, Jaraguá do Sul, BRAZIL; r3., London, UNITED KINGDOM; Simeon Cloud, San Jose, CA; Srivari Incorporated DBA Viswambara Software Systems, Bellevue, WA; Tarifflex Telecom AB, Stockholm, SWEDEN; Telecom Bretagne, School of Institute Mines-Telecom, Brest Cedex 3, FRANCE; The Cure Parkinsons Trust, London, UNITED KINGDOM; Thibera Consulting GmbH, Ingbert, GERMANY; University College Cork, Cork, IRELAND; University of Applied Sciences Konstanz, Konstanz, GERMANY; Waterford Institute of Technology, Waterford, IRELAND.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open and TM Forum intends to file additional written notifications disclosing all changes in membership.
On October 21, 1988, TM Forum filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 22, 2022. A notice was published in the
Notice is hereby given that, on June 20, 2022, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Specifically, Establishment Hulul al-Manazil For Real Estate Development, Jedda City, SAUDI ARABIA; Card Access Engineering, LLC, Draper, UT; Pin Genie, Inc. DBA Lockly, St. Paul, MN; Trinitas All Electric, LLC, Opelousas, LA; and NexMetro Development, LLC, Phoenix, AZ have joined as parties to the venture.
In addition, the following existing members have made the following changes: Hogar Controls Inc., changed its name to Hogar Controls US LLC, Sterling, VA; SmartRent.com, Inc. changed its name to SmartRent Technologies, Inc., Scottsdale, AZ; and Black Nova Corp. Limited changed its name to Black Nova Italia srl, Central, HONG KONG.
No other changes have been made in either the membership or the planned activity of the venture. Membership in this venture remains open, and the Joint Venture intends to file additional written notifications disclosing all changes in membership.
On November 19, 2020, the Joint Venture filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on March 22, 2022. A notice was published in the
Notice is hereby given that, on July 6, 2022, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, California Institute of Technology, Pasadena, CA; Pennsylvania State University, University Park, PA; Rector and Visitors of the University of Virginia, Charlottesville, VA; and University of Washington, Seattle, WA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and MCDC intends to file additional written notifications disclosing all changes in membership.
On November 13, 2015, MCDC filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 7, 2022. A notice was published in the
Notice is hereby given that, on August 1, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, NFPA has provided an updated and current list of its standards development activities, related technical committee and conformity assessment activities. Information concerning NFPA regulations, technical committees, current standards, standards development and conformity assessment activities are publicly available at nfpa.org.
On September 20, 2004, NFPA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on July 26, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and RISE intends to file additional written notifications disclosing all changes in membership.
On July 2, 2021, RISE filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 1, 2022. A notice was published in the
Notice is hereby given that, on August 2, 2022, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Specifically, ABS, Spring, TX; Aequor, Inc., San Diego, CA; Ames Laboratory, Ames, IA; APL Engineered Materials, Inc., Urbana, IL; Battelle Memorial Institute, Columbus, OH; BD Consulting and Investigations, Inc., San Jose, CA; Booz Allen Hamilton, McLean, VA; Cambria County Association for the Blind and Handicapped, Johnstown, PA; Christopher Wnuk, Reston, VA; College of Earth and Mineral Sciences, The Pennsylvania State University, State College, PA; Colorado School of Mines, Golden, CO; Concurrent Technologies Corporation, Johnstown, PA; Cornerstone Research Group, Miamisburg, OH; EGOR R&D, Inc., Corsicana, TX; ENIF Consulting LLC, Potomac, MD; EWI, Columbus, OH; Exergy Systems, Inc., Irvine, CA; Freedom Technologies, Inc., Arlington, VA; General Atomics Electromagnetic Systems, San Diego, CA; Ginkgo Bioworks, Boston, MA; GlobalNow and VERSO, Dallas, TX; Greentech Minerals Advisory Group, Alexandria, VA; Guided Particle Systems, Inc., Pensacola, FL; ICD Alloys and Metals LLC, Winston-Salem, NC; II-VI Aerospace & Defense, Murrieta, CA; IM Technologies LLC, Shoreham, NY; J.A. Green & Company, Washington, DC; Katz Water Technologies, Houston, TX; Kearney, Dallas, TX; Lawrence Livermore National Laboratory, Livermore, CA; Leonardo DRS, Fitchburg, MA; Life Cycle Engineering, Inc., North Charleston, SC; Lynntech, Inc., College Station, TX; Materials Research LLC, Palo Alto, CA; Materion Corp., Mayfield Heights, OH; Messaginglab, Brooklyn, NY; Minerva Lithium, Greensboro, NC; Molten Salt Solutions, Santa Fe, NM; MP Materials Corp., Las Vegas, NV; NGC, Plymouth, MN; NuMat Technologies, Skokie, IL; Orbital Sidekick, Inc., San Francisco, CA; Parallax Advanced Research, Beavercreek, OH; PerkinElmer, Austin, TX; Physical Sciences, Inc., Andover, MA; Polaris Alpha Advanced Systems, Inc., Fredericksburg, VA; Polykala Technologies LLC, San Antonio, TX; Powdermet, Inc., Euclid, OH; PRD Tech, Inc., Cincinnati, OH; QuesTek Innovations, Evanston, IL; REECCycling, Inc., Boone, IA; Rensselaer Polytechnic Institute, Troy, NY; Savengy Technologies LLC, Orlando, FL; SimBlocks LLC, Orlando, FL; Skuld LLC, London, OH; Smardt Chiller Group, Inc., Plattsburgh, NY; SMI, Inc., Washington, DC; SNJ LLC, Johns Island, SC; Southern Company Services, Inc., Birmingham, AL; SRI International, Menlo Park, CA; Strategic Control Sciences, Inc., Gaithersburg, MD; ThREE Consulting, St. Louis, MO; Tusaar Corp., Westminster, CO; UNandUP, Saint Louis, MO; Universal Achemetal Titanium LLC, Butte, MT; University of North Dakota, College of Engineering and Mines, Grand Forks, ND; University of Tennessee, Knoxville, Knoxville, TN; Urban Mining Company, San Marcos, TX; VPI Technology, Draper, UT; Weinberg Medical Physics, Inc., North Bethesda, MD; Western Rare Earths, Phoenix, AZ; Wyonics, Laramie, WY; Xlight Corporation, Mendham, NJ; and XSB, Inc., Setauket, NY, have been added as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CREaTe intends to file additional written notifications disclosing all changes in membership.
On April 22, 2022, CREaTe filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
Notice is hereby given that, on August 1, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, AeroVironment Inc., Simi Valley, CA; Anurag Group of Institutions, Hyderabad, INDIA; Asia eHealth Information Network, Kowloon, PEOPLE'S REPUBLIC OF CHINA; D3 Clarity, Inc., Austin, TX; Digital India Corporation—NeGD, New Delhi, INDIA; FEI-Elcom Tech, Inc, Northvale, NJ; Geoprovider AS, Stavanger, NORWAY; Intellicess, Inc., Austin, TX; Oliasoft AS, Oslo, NORWAY; ORSYS Formation, Paris, FRANCE; Parasoft Corporation, Monrovia, CA; Primesource AS, Oslo, NORWAY; Reliance Industries Limited, Navi Mumbai, INDIA; Reveal Energy, Services, LLC, Houston, TX; Richfit Information Technology Co. Ltd., Beijing, PEOPLE'S REPUBLIC OF CHINA; SizweNtsalubaGobodo, Johannesburg, SOUTH AFRICA; Snowflake Inc., San Mateo; CA; Softing Industrial Automation GmbH, Haar, GERMANY; Stratus Technologies, Inc., Maynard, MA; SYRACOM Consulting AG, Wiesbaden, GERMANY; The HDF Group, Champaign, IL; The University of Reading, Reading, UNITED KINGDOM; University of Texas at Austin—RAPID Consortium, Austin, TX; ValueFlow IT Pty Ltd., Cattai, AUSTRALIA; Vanke Service Co., Ltd, Shenzhen, PEOPLE'S REPUBLIC OF CHINA; and Vector North America, East Greenwich, RI, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and TOG intends to file additional written notifications disclosing all changes in membership.
On April 21, 1997, TOG filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 23, 2022. A notice was published in the
Notice is hereby given that, on July 27, 2022, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IVI Foundation intends to file additional written notifications disclosing all changes in membership.
On May 29, 2001, IVI Foundation filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 6, 2022. A notice was published in the
Notice is hereby given that, on July 26, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CONFERS intends to file additional written notifications disclosing all changes in membership.
On September 10, 2018, CONFERS filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on January 1, 2022. A notice was published in the
Notice is hereby given that, on July 13, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Open Source Imaging Consortium intends to file additional written notifications disclosing all changes in membership.
On March 20, 2019, Open Source Imaging Consortium filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on March 11, 2022. A notice was published in the
Notice is hereby given that, on July 6, 2022, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, Alqimi National Security, Inc., Rockville, MD; FORSUGO Hi-Cell, Inc., Marrero, LA; and Kopis Mobile LLC, Flowood, MS have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and CWMD intends to file additional written notifications disclosing all changes in membership.
On January 31, 2018, CWMD filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 1, 2022. A notice was published in the
Notice is hereby given that, on July 29, 2022, pursuant to section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Also, 1901 Group LLC, Reston, VA; Alteryx, Inc., Irvine, CA; Aptima, Inc., Woburn, MA; Assured Wireless Corp., San Diego, CA; AT&T Government Solutions, Inc., Vienna, VA; Broadband Antenna Tracking Systems, Inc., Indianapolis, IN; Clemson University, Clemson, SC; Decisive Analytics Corp., Arlington, VA; Dover Microsystems, Inc., Waltham, MA; EPS Corp., Tinton Falls, NJ; Global Planning Initiatives LLC, Virginia Beach, VA; HigherEchelon, Inc., Huntsville, AL; Inonde, McLean, VA; IT Partners, Inc., Herndon, VA; KNC Strategic Services, Oceanside, CA; Kopis Mobile LLC, Flowood, MS; Kudu Dynamics LLC, Chantilly, VA; L3Harris Technologies, Palm Bay, FL; Lexington Solutions Group LLC, Lexington, VA; Motorola Solutions, Inc. US Federal Markets Division, Linthicum, MD; NewSat North America LLC, Indian Harbour Beach, FL; Nobletech Solutions, Huntsville, AL; Poplicus, Inc. dba Govini, Arlington, VA; ProSync Technology Group, Ellicott City, MD; Rincon Research Corp., Tucson, AZ; SafeFlights, Inc. dba 14bis Supply Tracking, Burlington, MA; Shield AI, Inc., San Diego, CA; Shift5, Inc., Rosslyn, VA; Si2 Technologies, Inc., North Billerica, MA; Southern Methodist University, Dallas, TX; Streif Enterprise, Inc. dba ibeeto, El Cajon, CA; Taurean General Services, Boerne, TX; XATOR Corp., Reston, VA; and XR 2 LEAD LLC, Dumfries VA have withdrawn from this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and IWRP intends to file additional written notifications disclosing all changes in membership.
On October 15, 2018, IWRP filed its original notification pursuant to section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on April 6, 2022. A notice was published in the
Drug Enforcement Administration, Justice.
Notice of application.
Purisys, LLC, has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before October 31, 2022. Such persons may also file a written request for a hearing on the application on or before October 31, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on June 6, 2022, Purisys, LLC, 1550 Olympic Drive, Athens, Georgia 30601-1602, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for the production of active pharmaceutical ingredients (API) and analytical reference standards for sale to its customers. The company plans to manufacture the above listed controlled substances as clinical trial and starting materials to make compounds for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Caligor Coghlan Pharma Services has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before September 29, 2022. Such persons may also file a written request for a hearing on the application on or before September 29, 2022.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on June 1, 2022, Caligor Coghlan Pharma Services, 1500 Business Park Drive, Unit B, Bastrop, Texas 78602, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances as finished dosage units for use in clinical trials. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Office of Justice Programs (OJP), Bureau of Justice Assistance (BJA).
Notice of meeting.
This is an announcement of a meeting (via WebEx/conference call-in) of the Public Safety Officer Medal of Valor Review Board to consider nominations for the 2021-2022 Medal of Valor, and to make a limited number of recommendations for submission to the U.S. Attorney General to be cited. Additional issues of importance to the Board may also be discussed.
October 5, 2022, 12:30 p.m. to 3:00 p.m. EDT.
This meeting will be held virtually using web conferencing technology. The public may hear the proceedings of this virtual meeting/conference call by registering with Gregory Joy at least seven (7) days in advance with Gregory Joy (contact information below).
Gregory Joy, Policy Advisor, Bureau of Justice Assistance, Office of Justice Programs, by telephone at (202) 514-1369, toll free (866) 859-2687, or by email at
The Public Safety Officer Medal of Valor Review Board carries out those advisory functions specified in 42 U.S.C. 15202. Pursuant to 42 U.S.C. 15201, the President of the United States is authorized to award the Public Safety Officer Medal of Valor, the highest national award for valor by a public safety officer.
This virtual meeting/conference call is open to the public to participate remotely. For security purposes, members of the public who wish to participate must register at least seven (7) days in advance of the meeting/conference call by contacting Mr. Joy.
Access to the virtual meeting/conference call will not be allowed without prior registration. Please submit any comments or written statements for consideration by the Review Board in writing at least seven (7) days in advance of the meeting date.
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a revision of a currently approved collection for the authority to conduct the information collection request (ICR) titled, “Employment and Training Administration Quick Turnaround Surveys and Site Visits.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by October 31, 2022.
A copy of this ICR with applicable supporting documentation, including a description of the likely respondents, proposed frequency of response, and estimated total burden, may be obtained free by contacting Charlotte Schifferes by telephone at (202) 693-3655 (this is not a toll-free number), TTY (202) 693-7755, (this is not a toll-free number) or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training Administration, Office of Policy Development and Research, Attention: Charlotte Schifferes, 200 Constitution Avenue NW, Room N-5641, Washington, DC 20210; by email:
Charlotte Schifferes by telephone at (202) 693-3655 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
ETA is soliciting comments regarding a revision and extension of a currently approved generic information collection. The collection would allow for a quick review process by OMB of a series of 8 to 20 short surveys or site visit protocols relevant to the broad spectrum of programs administered by
• State and local management information systems,
• New processes and procedures,
• Services to, and their effectiveness with, different target groups,
• Integration and coordination with other programs, and
• Local workforce investment board membership and training.
ETA is seeking an extension and revision of the current collection to be able to obtain quick approval to conduct surveys and site visits so that it can collect and analyze, on a timely basis, information on various programs, practices, or problems, and to meet its obligations to develop high quality policy, research, administrative guidance, regulations, and technical assistance. ETA will request information in these surveys and site visits that is not otherwise available. Other research and evaluation efforts, including long-range evaluations, take many years for data to be gathered and analyzed. Administrative information, including quarterly or annual data reported by states and local areas, do not provide sufficient information on key operational practices, staff, or participant perspectives, and new or rapidly emerging issues. ETA will make every effort to coordinate the “quick turnaround” surveys and site visits with other data collections in ETA or other parts of the Department of Labor, in order to ease the burden on local, state, and other respondents, to avoid duplication, and to fully explore how data and information from each study can be used to inform other studies. Information from the quick turnaround surveys will thus complement but not duplicate other ETA reporting requirements or evaluation studies.
Section 169 of WIOA, Public Law 113-128, authorizes this information collection for both evaluations (section 169(a)) and research activities (section 169(b)).
This information collection is subject to the PRA. A federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
Notice.
The Department of Labor's (DOL) Employment and Training Administration (ETA) is soliciting comments concerning a proposed extension for the authority to conduct the information collection request (ICR) titled, “Confidentiality and Disclosure of State Unemployment Compensation Information Final Rule and State Income and Eligibility Verification Provisions of the Deficit Reduction Act of 1984.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by October 31, 2022.
A copy of this ICR with applicable supporting documentation, including a description of the likely
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Employment and Training Administration, Office of Unemployment Insurance, 200 Constitution Ave. NW, Room S-4524, Washington, DC 20210; by email:
Michelle Beebe by telephone at 202-693-3029 (this is not a toll-free number) or by email at
DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the Office of Management and Budget (OMB) for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements can be properly assessed.
The Deficit Reduction Act of 1984 (DEFRA) established an Income and Eligibility Verification System (IEVS) for the exchange of information for specific programs administered by state agencies. The programs include Temporary Assistance for Needy Families, Medicaid, Food Stamps, Supplemental Security Income, Unemployment Compensation, and any state program approved under Titles I, X, XIV, or XVI of the Social Security Act. Under the DEFRA, participating programs must exchange information to the extent that it is useful and productive in verifying eligibility and benefit amounts to assist the child support program and the Secretary of Health and Human Services in verifying eligibility and benefit amounts under Titles II and XVI of the Social Security Act.
On September 27, 2006, ETA issued a final rule regarding the Confidentiality and Disclosure of State Unemployment Compensation Information (71 FR 56842). This final rule includes a requirement for states to operate an income and eligibility verification system that meets the requirements of section 1137 of the Social Security Act (
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the internet, without redaction. DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
DOL is particularly interested in comments that:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
• Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, (
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before September 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is
Mara Blumenthal by telephone at 202-693-8538, or by email at
The information collection is necessary for the DOL's award of National Dislocated Worker Grants (NDWGs), which are discretionary grants intended to temporarily expand the service capacity at the state and local area levels by providing funding assistance in response to major economic dislocations or other events, as defined in the Workforce Innovation and Opportunity Act (WIOA). Funds are available for obligation by the Secretary under Sections 132 and 170 of WIOA. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before September 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Mara Blumenthal by telephone at 202-693-8538, or by email at
The Federal-State Extended Unemployment Compensation Act of 1970 section 203, as amended, provides for extended benefits to be paid to claimants exhausting regular benefits in a state if that state is experiencing high unemployment as measured by a thirteen-week moving average of the insured unemployment rate. The ETA 539 report is the vehicle states use to report weekly insured unemployment and other information necessary to calculate the trigger rate. The ETA 538 report permits DOL to report data five days after the week of reference. This data is released as an “advance” figure to the ETA 539 economic data. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Employment and Training Administration (ETA)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before September 29, 2022.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Comments are invited on: (1) whether the collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; (2) if the information will be processed and used in a timely manner; (3) the accuracy of the agency's estimates of the burden and cost of the collection of information, including the validity of the methodology and assumptions used; (4) ways to enhance the quality, utility and clarity of the information collection; and (5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Mara Blumenthal by telephone at 202-693-8538, or by email at
The Bipartisan Budget Act of 2018 included amendments to the Social Security Act (SSA) creating a permanent authorization for the Reemployment Services and Eligibility Assessment (RESEA) program. Section 306(e) of the SSA provides the authorization and specific requirements for an annual RESEA state plan. In 2019, the Department developed this state plan data collection to closely align with the statutory annual report requirements detailed in the SSA, and the essential administrative information necessary to complete the review, execution, and oversight of RESEA grants. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Mine Safety and Health Administration, Labor.
Notice.
This notice is a summary of a petition for modification submitted to the Mine Safety and Health Administration (MSHA) by the party listed below.
All comments on the petition must be received by MSHA's Office of Standards, Regulations, and Variances on or before September 29, 2022.
You may submit comments identified by Docket No. MSHA-2022-0040 by any of the following methods:
1.
2.
3.
4.
S. Aromie Noe, Office of Standards, Regulations, and Variances at 202-693-9440 (voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and Title 30 of the Code of Federal Regulations (CFR) part 44 govern the application, processing, and disposition of petitions for modification.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. The application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, sections 44.10 and 44.11 of 30 CFR establish the requirements for filing petitions for modification.
The petitioner states that:
(a) The Shoal Creek Mine utilizes continuous mining and longwall methods of mining.
(b) The operator uses cables up to 700 feet in length on its development sections and utilizes pillars 150 feet in length.
(c) For ground control purposes, the length of the pillars left for roof support during development at the mine may need to exceed the current 150 feet length.
(d) Without the requested modification, the inability to increase the length of the pillars will prevent an improved system of roof control.
(e) Increase in the length of the pillar without the requested modification makes cable handling and the section layout difficult for shuttle cars, auxiliary fans, and roof bolting machines.
(f) Increase in the length of cables will permit improved roof control and more efficient and safer cable handling.
The petitioner proposes the following alternative method:
(a) The maximum length of the low and medium trailing cables shall be 1,000 feet. The 1,000 feet trailing cables shall only be used on the section shuttle cars, roof bolters, and auxiliary ventilation fans.
(b) The low and medium voltage trailing cables shall not be smaller than No. 2 American Wire Gauge (AWG).
(c) All circuit breakers used to protect the No. 2 AWG trailing cables exceeding 700 feet in length shall have instantaneous trip units calibrated to trip at 800 amperes +/−10%. The trip settings of these circuit breakers shall be sealed or locked so the settings cannot be changed, and these circuit breakers shall have permanent, legible labels. Each label shall identify the circuit breaker as being suitable for protecting No. 2 AWG cables.
(d) Calibration, sealing, and labeling of circuit breakers and replacement units shall be performed by the circuit breaker manufacturer or an authorized repair facility outfitted with calibrated test equipment. Each label shall identify the circuit breaker as being suitable for protecting No. 2 AWG cable.
(e) Replacement circuit breakers and/or instantaneous trip units used to protect the No. 2 AWG trailing cables shall be calibrated to trip at 800 amperes +/−10%, and they shall be sealed.
(f) All components that provide short-circuit protection shall have a sufficient interruption rating in accordance with the minimum and maximum calculated fault currents available. Minimum and maximum calculated fault currents shall be made available by the operator.
(g) Prior to putting the equipment noted in item (a) of this section into service for each shift, persons designated by the mine operator shall visually examine the trailing cables to ensure that the cables are in safe operating condition. The instantaneous settings of the specially calibrated circuit breakers shall also be visually examined to ensure that the seals or locks have not been removed and that they do not exceed the settings stipulated in item (c) of this section.
(h) Permanent warning labels shall be installed and maintained on the cover(s) of the power center identifying the location of each sealed or locked short-circuit protective device. These labels shall warn miners not to change or alter the short-circuit settings. If any labels or settings on circuit breakers are altered or changed, the labels and/or short-circuit protective devices shall be changed.
(i) If the mining methods or operating procedures cause or contribute to the damage of any trailing cable, the cable shall be removed from service immediately and repaired or replaced. Each splice or repair in the trailing cables shall be made in a workmanlike manner and in accordance with the instructions of the manufacturer of the splice or repair materials. The splice or repair shall comply with 30 CFR 75.603 and 75.604. Additional precautions shall be taken to ensure that haulage roads and trailing cable storage areas are situated to minimize contact of the trailing cable with continuous mining equipment, haulage systems, scoops, and roof bolters.
(j) The petitioner's alternative method shall not be implemented until all miners designated to examine the integrity of seals or locks verify the short-circuit settings and proper procedures for examining trailing cables for defects or damage and to examine the designated operations of the section shuttle cars, roof bolters, and auxiliary ventilation fans have received the training specified in item (m).
(k) Prior to implementation of this petition, the circuit breakers shall be inspected by MSHA to ensure their conformity with the terms and conditions of this petition.
(l) Within 60 days after this petition becomes final, the operator shall submit proposed revisions for the approved 30 CFR part 48 training plan to the Coal Mine Safety and Health District Manager for the area in which the mine is located. The training shall include the following elements:
(1) Training in mining methods and operating procedures that will protect the trailing cables against damage.
(2) The proper procedure for examining the trailing cable to ensure that the cable(s) are in safe operating condition by a visual inspection of the entire cable, observing the insulation and the integrity of the splices, nicks, and abrasions.
(3) Training in hazards of setting the short-circuit interrupting device(s) too high to adequately protect the trailing cables.
(4) Training in how to verify that the circuit interrupting device(s) protecting the trailing cable(s) are properly set and maintained.
(5) On each production shift, the person designated by the operator to examine the trailing cable shall ensure that only the amount of the trailing cable needed for the shift is stored on the cable reel to prevent cable overheating. All excess cable shall be stored in a safe location.
(m) The operator shall post this Petition in unobstructed locations on the bulletin boards and/or in other conspicuous places where notices to miners are ordinarily posted at the mine for a period of not less than 60 consecutive days.
The petitioner asserts that the alternative method proposed will at all times guarantee no less than the same
Mine Safety and Health Administration, Labor.
Notice.
This notice is a summary of a petition for modification submitted to the Mine Safety and Health Administration (MSHA) by the party listed below.
All comments on the petition must be received by MSHA's Office of Standards, Regulations, and Variances on or before September 29, 2022.
You may submit comments identified by Docket No. MSHA-2022-0039 by any of the following methods:
1.
2.
3.
4.
S. Aromie Noe, Office of Standards, Regulations, and Variances at 202-693-9440 (voice),
Section 101(c) of the Federal Mine Safety and Health Act of 1977 and title 30 of the Code of Federal Regulations (CFR) part 44 govern the application, processing, and disposition of petitions for modification.
Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act) allows the mine operator or representative of miners to file a petition to modify the application of any mandatory safety standard to a coal or other mine if the Secretary of Labor determines that:
1. An alternative method of achieving the result of such standard exists which will at all times guarantee no less than the same measure of protection afforded the miners of such mine by such standard; or
2. The application of such standard to such mine will result in a diminution of safety to the miners in such mine.
In addition, sections 44.10 and 44.11 of 30 CFR establish the requirements for filing petitions for modification.
The petitioner states that:
(a) The proposed alternative method has been successfully used to prepare CBM wells for safe intersection by using one or more of the following methods: cement plug, polymer gel, bentonite gel, active pressure management and water infusion, and remedial work.
(b) The proposed alternative method will prevent the CBM well methane from entering the underground mine.
(c) An existing Petition for Modification (Docket No. M-2016-019-C granted on June 30, 2017) allows the plugging methods outlined in the proposed alternative method to be used at the Harrison County Mine for vertical oil and gas wells.
The petitioner proposes the following alternative method:
(a) District Manager approval required:
(1) A minimum working barrier of 300 feet in diameter shall be maintained around all SDD wells until approval to proceed with mining has been obtained from the District Manager. This barrier extends around all vertical and horizontal branches drilled in the coal seam. This barrier also extends around all vertical and horizontal branches within overlying coal seams subject to caving or subsidence from the coal seam being mined when methane leakage through the subsidence zone is possible.
(2) The District Manager may choose to approve each well or a group of wells as applicable to the conditions. To prepare the SDD wells for intersection, the District Manager may require a certified review by a professional engineer to assess the applicability of the proposed system(s) to the mine-specific conditions.
(b) Mandatory computations and administrative procedures prior to plugging or replugging SDD wells after District Manager approval has been obtained:
(1) Probable Error of Location—Directional drilling systems rely on sophisticated angular measurement systems and computer models to calculate the estimated location of the well bore. This estimated hole location is subject to cumulative measurement errors so that the distance between actual and estimated location of the well bore increases with the depth of the hole. Modern directional drilling systems are typically accurate within one or two degrees depending on the specific equipment and techniques.
(i) The Probable Error of Location (
(ii) In addition to the Probable Error of Location, the true point of intersection may be affected by underground survey errors, surface survey errors, and survey errors.
(2) Minimum Working Barrier Around Well—The minimum working barrier around any CBM well or branches of a CBM well in the coal seam is 50 feet greater than the calculated Probable Error of Location.
(i) For example, mining projected to intersect a well at a point 4,000 feet from the collar, measured along the well path, would consider a probable error radius of 69.8 feet about the projected point of intersection. Therefore, the minimum working barrier around this point of the well bore is 120 feet. The additional 50 feet is a reasonable
(ii) When mining is within the minimum working barrier distance from a CBM well or branch, the operator must comply with the provisions of the Proposed Decision and Order.
(iii) The District Manager may require a greater minimum working barrier around CBM wells where geologic conditions, historical location errors, or other factors warrant a greater barrier.
(3) Ventilation Plan Requirements—The Ventilation Plan shall identify SDD CBM wells within the active mining area and any projected mining area as specified in 30 CFR 75.372(b)(14) and, where intersection is projected, note the well casing type, diameter, and preparation method for the defined working barrier. If the well has not been prepared for intersection, the techniques which the operator plans to implement shall also be included. Actions necessary to implement such techniques, as well as required operational precautions for mining within the minimum working barrier shall also be included. Further operational precautions to be taken when mining within the minimum working barrier may be required by the District Manager.
(4) Ventilation Map—The ventilation map specified in 30 CFR 75.372 shall contain the following information:
(i) The surface location of all CBM wells in the active mining area and any projected mining area as specified in 30 CFR 75.372(b)(14);
(ii) Identifying information of CBM wells (American Petroleum Institute or equivalent);
(iii) The coal seam intersection of all CBM wells;
(iv) The horizontal extents in the coal seam of all CBM wells and branches;
(v) If intersected, the date of mine intersection and the location of such intersection relative to the expected point.
(c) Mandatory procedures for plugging or replugging SDD wells:
(1) The operator shall include in the mine ventilation plan one or more of the following methods specified in sections (c)(3) through (c)(7) to prepare SDD wells for safe intersection.
(2) The methods approved in the ventilation plan must be completed on each SDD well before mining encroaches on the minimum working barrier around the well or branch of the well in the coal seam being mined. If methane leakage through subsidence cracks is a problem when retreat mining, the minimum working barrier must be maintained around wells and branches in overlying coal seams or the wells and branches must be prepared for safe intersection as specified in the mine ventilation plan.
(3) Cement Plug—Cement may be used to fill the entire SDD hole system.
(i) Squeeze cementing techniques are necessary for SDD plugging due to the lack of tubing in the hole. Cement should fill void spaces and eliminate methane leakage along the hole. Once the cement has cured, the SDD system may be intersected multiple times without further hole preparation.
(ii) Gas cutting occurs if the placement pressure of the cement is less than the methane pressure in the coal seam. Under these conditions, gas will bubble out of the coal seam and into the unset cement creating a pressurized void or a series of interconnected pressurized voids. Water cutting occurs when formation water and standing water in the hole invades or displaces the unset cement. Standing water must be bailed out of the hole or driven into the formation with compressed gas to minimize water cutting. The cement pressure must be maintained higher than the formation pressure until the cement sets to minimize both gas and water cutting. The cementing program in the ventilation plan must address both gas and water cutting.
(iii) Due to the large volume to be cemented and potential problems with cement setting prior to filling the entire SDD system, adequately sized pumping units with back-up capacity must be used. Various additives such as retarders, lightweight extenders, viscosity modifiers, thixotropic modifiers, and fly ash may be used in the cement mix. The volume of cement pumped should exceed the estimated hole volume to ensure the complete filling of all voids.
(iv) The complete cementing program, including hole dewatering, cement, additives, pressures, pumping times and equipment must be specified in the ventilation plan. The safety data sheets (SDSs) for all cements, additives, and components and details regarding personal protective equipment and techniques to protect workers from the potentially harmful effects of the cement and cement components shall be included in the ventilation plan.
(v) Records of cement mixes, cement quantities, pump pressures, and flow rates and times should be retained for each hole plugged. SDD holes may be plugged with cement years in advance of mining. The District Manager shall require suitable documentation of the cement plugging to approve mining within the minimum working barrier around CBM wells.
(4) Polymer Gel—Polymer gels start out as low viscosity, water-based mixtures of organic polymers that are crosslinked using time-delayed activators to form a water-insoluble, high-viscosity gel after being pumped into the SDD system.
(i) Although polymer gel systems never solidify, the activated gel should develop sufficient strength to resist gas flow. A gel that is suitable for treating SDD wells for mine intersection will reliably fill the SDD system and prevent gas-filled voids. Any gel chemistry used for plugging SDD wells should be resistant to bacterial and chemical degradation and remain stable for the duration of mining through a SDD system.
(ii) Water may dilute the gel mixture to the point where it will not set to the required strength. Thus, water in the holes must be removed before injecting the gel mixture. Water removal can be accomplished by conventional bailing and then injecting compressed gas to squeeze the water that accumulates in low spots back into the formation. Gas pressurization should be continued until the hole is dry.
(iii) Dissolved salts in the formation waters may interfere with the cross-linking reactions. Any proposed gel mixtures must be tested with actual formation waters.
(iv) Equipment to mix and pump gels should have adequate capacity to fill the hole before the gel sets. Back-up units should be available while pumping.
(v) The volume of gel pumped should exceed the estimated hole volume to ensure the complete filling of all voids and allow for gel to infiltrate the joints in the coal seam surrounding the hole. Gel injection and setting pressures should be specified in the ventilation plan.
(vi) To reduce the potential for an inundation of gel, the final level of gel should be close to the level of the coal seam and the remainder of the hole should remain open to the atmosphere until mining in the vicinity of the SDD system is completed. Packers may be used to isolate portions of the SDD system.
(vii) The complete polymer gel program, including the advance testing of the gel with formation water, dewatering systems, gel specifications, gel quantities, gel placement, pressures, and pumping equipment must be specified in the ventilation plan. The SDSs for all gel components and details regarding personal protective equipment and techniques to protect workers from the potentially harmful effects of the gel and gel components shall be included in the ventilation plan. A record of the
(5) Bentonite Gel—High-pressure injection of bentonite gel into the SDD system will infiltrate the cleat and butt joints of the coal seam near the well bore and effectively seal these conduits against the flow of methane.
(i) Bentonite gel is a thixotropic fluid that sets when it stops moving. Bentonite gel has a significantly lower setting viscosity than polymer gel. While the polymer gel fills and seals the borehole, the lower strength bentonite gel must penetrate the fractures and jointing in the coal seam to be effective in reducing formation permeability around the hole. The use of bentonite gel is restricted to depleted CBM applications with low abandonment pressures and limited recharge potential. In general, these applications will be in mature CBM fields with long production histories.
(ii) A slug of water should be injected prior to the bentonite gel to minimize moisture-loss bridging near the well bore. The volume of gel pumped should exceed the estimated hole volume to ensure that the gel infiltrates the joints in the coal seam for several feet surrounding the hole. Due to the large gel volume and potential problems with premature thixotropic setting, adequately sized pumping units with back-up capacity are required.
(iii) Additives to the gel may be required to modify viscosity, reduce filtrates, reduce surface tension, and promote sealing of the cracks and joints around the hole. To reduce the potential for an inundation of bentonite gel, the final level of gel should be approximately the elevation of the coal seam and the remainder of the hole should remain open to the atmosphere until mining in the vicinity of the SDD system is completed. If a water column is used to pressurize the gel, it must be bailed down to the coal seam elevation prior to intersection.
(iv) The complete bentonite gel program, including formation infiltration and permeability reduction data, hole pretreatment, gel specifications, additives, gel quantities, flow rates, injection pressures, and infiltration times, must be specified in the ventilation plan. The ventilation plan should list the equipment used to prepare and pump the gel. The SDSs for all gel components and details regarding personal protective equipment and techniques to protect workers from the potentially harmful effects of the gel and additives shall be included in the ventilation plan. A record of hole preparation, gel quantities, gel formulation, pump pressures, and flow rates and times should be retained for each hole that is treated with bentonite gel.
(6) Active Pressure Management and Water Infusion—Reducing the pressure in the hole to less than atmospheric pressure by operating a vacuum blower connected to the wellhead may facilitate safe intersection of the hole by a coal mine. The negative pressure in the hole will limit the quantity of methane released into the higher pressure mine atmosphere. If the mine intersection is near the end of a horizontal branch of the SDD system, air will flow from the mine into the upstream side of the hole and be exhausted through the blower on the surface. On the downstream side of the intersection, if the open hole length is short, the methane emitted from this side of the hole may be diluted to safe levels with ventilation air. Conversely, safely intersecting this system near the bottom of the vertical hole may not be possible because the methane emissions from the multiple downstream branches may be too great to dilute with ventilation air. The methane emission rate is directly proportional to the length of the open hole.
(i) Successful application of vacuum systems may be limited by caving of the hole or water collected in dips in the SDD system. Another important factor in the success of vacuum systems is the methane liberation rate of the coal formation around the well; older, more depleted wells that have lower methane emission rates are more amenable to this technique. The remaining methane content and the formation permeability shall be addressed in the ventilation plan.
(ii) Packers may be used to reduce methane inflow into the coal mine after intersection. All packers on the downstream side of the hole must be equipped with a center pipe so that the inby methane pressure may be measured or so that water may be injected. Subsequent intersections shall not take place if pressure in a packer-sealed hole is excessive.
(iii) Alternatively, methane produced by the downstream hole may be piped to an in-mine degas system to safely transport the methane out of the mine or may be piped to the return air course for dilution. In-mine methane piping shall be protected as stipulated in “Piping Methane in Underground Coal Mines,” MSHA IR1094 (1978). Protected methane diffusion zones may be established in return air courses if needed.
(iv) Detailed sketches and safety precautions for methane collection, piping, and diffusion systems must be included in the ventilation plan per 30 CFR75.371(ee).
(v) Water infusion prior to intersecting the well will temporarily limit methane flow. Water infusion may also help control coal dust levels during mining. High water infusion pressures may be obtained prior to the initial intersection by the hydraulic head resulting from the hole depth or by pumping. Water infusion pressures for subsequent intersections are limited by leakage around in-mine packers and limitations of the mine water distribution system. If water is infused prior to the initial intersection, the water level in the hole must be lowered to the coal seam elevation before the intersection.
(vi) The ventilation plan should include/address the following:
(A) The complete pressure management strategy including negative pressure application, wellhead equipment, use of packers, in-mine piping, methane dilution, and water infusion.
(B) Procedures for controlling methane in the downstream hole.
(C) Remaining methane content and formation permeability.
(D) Potential for the coal seam to cave into the well.
(E) Dewatering methods.
(F) Record of the negative pressures applied to the system, methane liberation, use of packers, any water infusion pressures, and application time should be retained for each intersection.
(7) Remedial work—If problems are encountered in preparing the holes for safe intersection, remedial measures must be taken to protect the miners. For example, if only one-half of the calculated hole volume of cement could be placed into a SDD well due to hole blockage, holes should be drilled near each branch that will be intersected and squeeze cemented using pressures sufficient to fracture into the potentially empty SDD holes. The District Manager approval of the ventilation plan for remedial +work shall be obtained on a case-by-case basis.
(d) Mandatory procedures after District Manager approval to mine within the minimum working barrier around the well or branch of the well:
(1) The operator, the District Manager, the miners' representative, or the State may request a conference prior to any intersection or after any intersection to discuss issues or concerns. Upon receipt
(2) The operator must notify the District Manager, the State, and the miners' representative at least 48 hours prior to the intended intersection of any CBM well.
(3) The initial intersection of a well or branch of a well typically has a higher risk than subsequent intersections and indicates if the well preparation is sufficient to prevent the inundation of methane. For the initial intersection of a well or branch, the following procedures are mandatory:
(i) Entries that will intersect either vertical segments or branches of a well shall be noted with a readily visible marking that notes the distance to the well. Such marking shall be located in the last open crosscut when mining is within 100 feet of the well.
(ii) When a segment of a well will be intersected by a longwall, drivage sights shall be installed on 10 feet centers starting 50 feet in advance of the anticipated intersection. Drivage sights shall be installed in the headgate entry of the longwall and note the shield number at which the anticipated intersection is expected to occur or begin in the case of a horizontal branch.
(iii) The operator shall ensure that fire-fighting equipment, including fire extinguishers, rock dust, and sufficient fire hose to reach the working face area of the mine-through (when either the conventional or the continuous mining method is used), is available and operable during all well mine-throughs. The fire hose shall be located in the last open crosscut of the entry or room. The operator shall maintain the water line to the belt conveyor tailpiece along with a sufficient amount of fire hose to reach the farthest point of penetration on the section. When the longwall mining method is used, a hose to the longwall water supply is sufficient. All fire hoses shall be connected and ready for use, but do not have to be charged with water, during the cut-through.
(iv) The operator shall ensure that sufficient supplies of roof support and ventilation materials are available at the working section. In addition, emergency plugs, packers, and setting tools to seal both sides of the well or branch shall be available in the immediate area of the cut-through.
(v) When mining advances within the minimum working barrier distance from the well or branch of the well, the operator shall service all equipment and check for permissibility at least once daily. Daily permissibility examinations must continue until the well or branch is intersected or until mining exits the minimum working barrier around the well or branch.
(vi) When mining advances within the minimum working barrier distance from the well or branch of the well, the operator shall calibrate the methane monitor(s) on the longwall, continuous mining machine, or cutting machine and loading machine at least once daily. Daily methane monitor calibration must continue until the well or branch is intersected or until mining exits the minimum working barrier around the well or branch.
(vii) When mining is in progress, the operator shall perform tests for methane with a handheld methane detector at least every 10 minutes from when the mining with the continuous mining machine or longwall face is within the minimum working barrier around the well or branch. During the cutting process, no individual shall be allowed on the return side until the mine-through has been completed and the area has been examined and declared safe. The shearer must be idle when any miners are inby the tail drum.
(viii) When using continuous or conventional mining methods, the working place shall be free from accumulations of coal dust and coal spillages, and rock dust shall be placed on the roof, rib, and floor within 20 feet of the face when mining through the well or branch. On longwall sections, rock dust shall be applied on the roof, rib, and floor up to both the headgate and tailgate pillared area.
(ix) Immediately after the well or branch is intersected, the operator shall de-energize all equipment, and the certified person shall thoroughly examine and determine the working place safe before mining is resumed.
(x) After a well or branch has been intersected and the working place determined safe, mining shall continue in by the well at a sufficient distance to permit adequate ventilation around the area of the well or branch.
(xi) No open flame shall be permitted in the area until adequate ventilation has been established around the well bore or branch. Any casing, tubing, or stuck tools will be removed using the methods approved in the ventilation plan.
(xii) No person except those directly engaged in the operation shall be permitted in the working place of the mine-through operation during active mining.
(xiii) The operator shall warn all personnel directly engaged in the operation of the planned intersection of the well or branch prior to going underground if the intersection is to occur during their shift.
(xiv) The mine-through operation shall be under the direct supervision of a certified person. Instructions concerning the mine-through operation shall be issued only by the certified person in charge.
(xv) All miners shall be in known locations and stay in communication with the responsible person, in accordance with the site-specific approved Emergency Response Plan, when active mining occurs within the minimum working barrier of the well or branch.
(xvi) The responsible person required under 30 CFR 75.1501 is responsible for well intersection emergencies. The well intersection procedures must be reviewed by the responsible person prior to any planned intersection.
(xvii) A copy of the Decision and Order shall be maintained at the mine and be available to the miners.
(xviii) The provisions of the Decision and Order do not impair the authority of representatives of MSHA to interrupt or halt the mine through operation and to issue a withdrawal order when they deem it necessary for the safety of the miners. MSHA may order an interruption or cessation of the mine-through operation and/or a withdrawal of personnel by issuing either an oral or a written order to a representative of the operator, which shall include the basis for the order. Operations in the affected area of the mine may not resume until a representative of MSHA permits resumption of mine-through operations. The operator and miners shall comply with verbal or written MSHA orders immediately. All oral orders shall be committed to writing within a reasonable time as conditions permit.
(xix) For subsequent intersections of branches of a well, appropriate procedures to protect the miners shall be specified in the ventilation plan.
(e) Mandatory procedures after SDD intersections:
(1) All intersections with SDD wells and branches that are in intake air courses shall be examined as part of the pre-shift examinations required under 30 CFR 75.360.
(2) All other intersections with SDD wells and branches shall be examined as part of the weekly examinations required under 30 CFR 75.364.
(f) Other requirements:
(1) A minimum working barrier of 300 feet in diameter shall be maintained around all SDD wells until the operator submits proposed revisions for its approved 30 CFR part 48 training plan
(2) A minimum working barrier of 300 feet in diameter shall be maintained around all SDD wells until the operator has submitted proposed revisions for its approved mine emergency evacuation and firefighting program of instruction required by 30 CFR 75.1502. The operator shall revise the program to include the hazards and evacuation procedures to be used for well intersections. All underground miners shall be trained in this revised program according to the revised mine emergency evacuation and firefighting program of instruction prior to mining within the minimum working barrier.
The petitioner asserts that the alternative method proposed will at all times guarantee no less than the same measure of protection afforded the miners under the mandatory standard.
Occupational Safety and Health Administration (OSHA), Labor.
Notice of stakeholder meeting.
OSHA invites interested parties to participate in an informal stakeholder meeting concerning the rulemaking project for OSHA's Process Safety Management (PSM) standard, at which OSHA will provide a brief overview of its work on the PSM rulemaking project to date. Additionally, OSHA invites participants to provide public comments related to potential changes to the standard that OSHA is considering.
The stakeholder meeting will be held from 10:00 a.m. to 4:00 p.m. ET, on Wednesday, September 28, 2022. Registration to participate in or observe the stakeholder meeting will be open until all spots are full. Written comments must be submitted by October 28, 2022.
OSHA published the PSM standard, 29 CFR 1910.119,
Since its publication in 1992, the PSM standard has not been updated. The 2013 ammonium nitrate explosion at a fertilizer storage facility in West, Texas renewed interest in PSM. In response to this incident, on August 1, 2013, Executive Order (E.O.) 13650,
Additionally, the E.O. directed that within 90 days, OSHA should publish a Request for Information (RFI) to identify issues related to modernization of its PSM standard and related standards necessary to meet the goal of preventing major chemical accidents. OSHA published the RFI in December 2013, and subsequently initiated and completed a Small Business Advocacy Review Panel (SBAR) in June 2016. Following the SBAR panel, PSM was moved to the Long-Term Actions list on the Unified Agenda. OSHA has continued to work on the PSM standard rulemaking and PSM was placed back on the Unified Agenda in the spring of 2021. OSHA is holding this stakeholder meeting to reengage stakeholders and solicit comments on the modernization topics mentioned in the RFI and SBAR panel report, as well as any additional PSM-related issues stakeholders would like to raise. The list of modernization topics is listed below in Section II.
The Environmental Protection Agency (EPA) has a separate, pending proposal addressing RMP requirements. In the Clean Air Act Amendments of 1990, Congress required OSHA to adopt the
The meeting will feature a brief presentation from OSHA on the background of the PSM standard and some of the issues outlined in this notice. After the presentation, there will be time for registered commenters to provide verbal comments. PSM rulemaking topics are outlined in the lists below, but commenters may provide feedback on additional PSM-related issues. More information on most of the topics in the lists below can be found in the Small Entity Representative (SER) Background Document (docket no. OSHA-2013-0020-0107) and SER Issues Document (docket no. OSHA-2013-0020-0108) located on the PSM SBAR web page,
The potential changes to the scope of the current PSM standard that OSHA is considering include:
1. Clarifying the exemption for atmospheric storage tanks;
2. Expanding the scope to include oil- and gas-well drilling and servicing;
3. Resuming enforcement for oil and gas production facilities;
4. Expanding PSM coverage and requirements for reactive chemical hazards;
5. Updating and expanding the list of highly hazardous chemicals in Appendix A;
6. Amending paragraph (k) of the Explosives and Blasting Agents Standard (§ 1910.109) to extend PSM requirements to cover dismantling and disposal of explosives and pyrotechnics;
7. Clarifying the scope of the retail facilities exemption; and
8. Defining the limits of a PSM-covered process.
The potential changes to particular provisions of the current PSM standard that OSHA is considering include:
1. Amending paragraph (b) to include a definition of RAGAGEP;
2. Amending paragraph (b) to include a definition of critical equipment;
3. Expanding paragraph (c) to strengthen employee participation and include stop work authority;
4. Amending paragraph (d) to require evaluation of updates to applicable recognized and generally accepted as good engineering practices (RAGAGEP);
5. Amending paragraph (d) to require continuous updating of collected information;
6. Amending paragraph (e) to require formal resolution of Process Hazard Analysis team recommendations that are not utilized;
7. Expanding paragraph (e) by requiring safer technology and alternatives analysis;
8. Clarifying paragraph (e) to require consideration of natural disasters and extreme temperatures in their PSM programs, in response to E.O. 13990;
9. Expanding paragraph (j) to cover the mechanical integrity of any critical equipment;
10. Clarifying paragraph (j) to better explain “equipment deficiencies”
11. Clarifying that paragraph (l) covers organizational changes;
12. Amending paragraph (m) to require root cause analysis;
13. Revising paragraph (n) to require coordination of emergency planning with local emergency-response authorities;
14. Amending paragraph (o) to require third-party compliance audits;
15. Including requirements for employers to develop a system for periodic review of and necessary revisions to their PSM management systems (previously referred to as “Evaluation and Corrective Action”); and
16. Requiring the development of written procedures for all elements specified in the standard, and to identify records required by the standard along with a records retention policy (previously referred to as “Written PSM Management Systems”).
Regardless of attendance at the stakeholder meeting, interested persons may submit written comments electronically at
To read or download comments or other material in the docket, go to
Information on using the
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of document under the authority of sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor's Order No. 08-2020 (85 FR 58393); and 29 CFR part 1911.
Signed at Washington, DC.
National Credit Union Administration (NCUA).
Notice and request for comment.
The National Credit Union Administration (NCUA), as part of a continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the following extension of a currently approved collection, as required by the Paperwork Reduction Act of 1995.
Written comments should be received on or before October 31, 2022 to be assured consideration.
Interested persons are invited to submit written comments on the information collection to Dawn Wolfgang, National Credit Union Administration, 1775 Duke Street, Suite 6032, Alexandria, Virginia 22314; email at
Address requests for additional information to Dawn Wolfgang at the address above or telephone 703-548-2279.
By Melane Conyers-Ausbrooks, Secretary of the Board, the National Credit Union Administration, on August 24, 2022.
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice.
Comments should be received on or before September 29, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Dawn Wolfgang at (703) 548-2279, emailing
By Melane Conyers-Ausbrooks, Secretary of the Board, the National Credit Union Administration, on August 24, 2022.
National Science Foundation.
Submission for OMB Review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314, or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The National Science Foundation (NSF) Innovation Corps (I-Corps
In FY 2017, the American Innovation and Competitiveness Act (AICA), Public Law 114-329, Sec 601, formally authorized and directed the expansion of NSF I-Corps Program to increase the economic competitiveness of the United States, enhance partnerships between academia and industry, develop an American STEM workforce that is globally competitive, and support female entrepreneurs and individuals from historically underrepresented groups in STEM through mentorship, education, and training.
Under AICA, NSF has built and expanded the I-Corps Program through the National Innovation Network (NIN) model. NIN is a collection of NSF I-Corps Nodes and Sites that, together with NSF, implement the I-Corps program to grow and sustain the national innovation ecosystem. I-Corps Nodes are typically large, multi-institutional collaborations that deliver the NSF National I-Corps Teams training curriculum and recruit and train the National I-Corps instructors. I-Corps Sites are entrepreneurial centers located at individual colleges and universities that catalyze potential I-Corps teams within their local institutions. Together, the Nodes and Sites have served as the backbone of the NIN.
In 2020, NSF published the Program Solicitation, NSF 20-529, to formalize the launching of the NSF I-Corps Hubs Program, which further expands and strengthens the NIN. The I-Corps Hubs are designed to support inclusive, regional communities of innovators, in that teams are encouraged to recruit diverse members at all levels. In addition, the I-Corps Hubs Program also provides new pathways for teams to qualify for the participation in the National I-Corps
Under AICA, NSF is directed to collect data and information pertaining to the characteristics, outputs, and outcomes from the teams as well as individuals funded by the NSF I-Corps
Recently, NSF published a new I-Corps Hubs Solicitation, NSF 22-566, that supplants the now archived NSF 20-529. The new solicitation contains a set of modified grantee reporting requirements. In response to these modifications, NSF requests the revision
Under the new reporting requirements outlined in NSF 22-566, each Hub is required to provide data and documentation to demonstrate the progress of the six (6) required activities:
More concretely, each Hub is asked to report on the following:
4. Records on the personnel working at the Lead and Partner institutions within the Hub:
5. Records on cohorts of teams trained during a FY:
6. Records on the instructors by cohort:
7. Records of all the teams and individuals participating in the Program
8. Outcomes of the team:
The reporting requirements listed above are in addition to the data collected by the agency's annual report and final report requirements for the grantees. The information will help NSF report on NIN activities in the Biennial Report to Congress (as mandated by the AICA), and will provide managing Program Directors a means to monitor the progresses of these I-Corps Hubs. Finally, in compliance with the Evidence Act of 2019, information collected will be used to satisfy other Congressional requests, support the agency's policymaking and internal evaluation and assessment needs, and respond to inquiries from the public, NSF's external merit reviewers who serve as advisors, and NSF's Office of the Inspector General.
Information collected will include the names of the participants, their affiliated organizations, email addresses, and home states. These personally identifiable information (PII) are collected primarily to track recipients in their roles in the I-Corps Teams, and to allow NSF to perform due diligence and quality control on the data provided by the grantees. In addition, other requested information includes the participants' self-reporting of: occupation, gender, demographics, disability status, and veteran status. This information is collected primarily for Congressional reporting purposes. These PII data will be accessed only by the I-Corps Hubs, the managing I-Corps Program Directors, NSF senior management, and supporting staff conducting analyses using the data as authorized by NSF. Any public reporting of data will be in aggregate form, and any personal identifiers will be removed.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Sean Robinson, 202-268-8405.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on August 23, 2022, it filed with the Postal Regulatory Commission a
September 9, 2022, at 10:00 a.m.
Washington, DC.
Closed.
1. Financial and Operational Issues.
2. Administrative Items.
Michael J. Elston, Secretary of the Board of Governors, U.S. Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1000. Telephone: (202) 268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Pricing Schedule at Options 7, as described further below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's Pricing Schedule at Options 7. Each change is described below.
Currently, for Regular Orders
Similar to break-up rebates for the Exchange's Facilitation Mechanism and Solicited Order Mechanism,
The Exchange seeks to incentivize Electronic Access Members to submit a greater amount of smaller, more typically sized Priority Customer orders into PIM for price improvement with the proposed pricing. The Exchange believes the 100 contract threshold represents such small-sized orders.
Today, the Exchange offers a PIM Rebate within Options 7, Section 6, Other Options Fees and Rebates. Specifically, Options 7, Section 6B pays a rebate to Electronic Access Members utilizing either the Facilitation Mechanism or PIM for unsolicited Crossing Orders, whereby the contra-side party of the Crossing Order (1) is either Firm Proprietary or Broker-Dealer and (2) has total affiliated Average Daily Volume (“ADV”) of 250,000 or more contracts. Electronic Access Members that qualify for this rebate are eligible to earn the following rebates during a given month:
Once a Member reaches or exceeds the volume threshold to qualify for a $0.03 per originating contract side rebate during a given month, then the Member will receive the $0.03 per contract rebate for all of its originating contract sides that qualify for the PIM and Facilitation Rebate during that month, including for the Member's first
At this time, the Exchange proposes to offer another rebate to Electronic Access Members that utilize PIM to execute more than 0.75% of Priority Customer volume in Regular Orders, calculated as a percentage of Customer TCV per day in a given month. The Exchange proposes to pay these Electronic Access Members a rebate of $0.11 per contract for Priority Customer Regular Orders under 100 contracts that are submitted to PIM. The rebate would be paid to the Agency Order as that term is defined within Options 3, Section 13. Eligible volume from Affiliated Members
As noted above, the Exchange seeks to incentivize Electronic Access Members to submit a greater amount of smaller sized Priority Customer orders into PIM for price improvement with the proposed pricing and, therefore, is proposing to pay the proposed rebate on orders under 100 contracts.
The Exchange notes that all Electronic Access Members may participate in a PIM.
Currently, the Exchange provides rebates to Priority Customer complex orders based on the volume that a Member traded as provided for within Options 7, Section 4, Complex Order Fees and Rebates. Specifically, the Exchange calculates Total Affiliated Member or Affiliated Entity
All Complex Order volume executed on the Exchange, including volume executed by Affiliated Members, is included in the volume calculation, except for volume executed as Crossing Orders and Responses to Crossing Orders. Affiliated Entities may aggregate their Complex Order volume for purposes of calculating Priority Customer Rebates. The Appointed OFP would receive the rebate associated with the qualifying volume tier based on aggregated volume.
The Exchange offers the Priority Customer complex order rebates to encourage Members to bring complex volume to the Exchange, including incentivizing Members to bring Priority Customer complex orders specifically to earn the associated rebates.
The Exchange proposes to amend the volume requirement for Priority Customer complex order Tier 7 from the current level of “above 1.350%-2.00%” to “above 1.350%-1.750%.” The Exchange also proposes to adjust Priority Customer complex order Tier 8 from the current level of “above 2.000%-2.750%” to “above 1.750%-2.750%.”
The Exchange notes that all Members may elect to qualify for the Priority Customer complex rebates by submitting complex order flow to the Exchange and earn a rebate on their Priority Customer complex volume. Accordingly, the proposed changes are designed to increase the amount of complex order flow Members bring to the Exchange, particularly Priority Customer complex volume, and further encourage them to contribute to a deeper, more liquid market to the benefit of all market participants.
The Exchange proposes to make technical amendments to Options 7, Section 6B to remove the words “Price Improvement Mechanism” and the parenthesis around the word “PIM” because this term is already defined within the term “Crossing Order” at Options 7, Section 1(c).
The Exchange proposes to capitalize the work “affiliated” in Options 7, Section 6B because the term “Affiliated Member” is defined within Options 7, Section 1(c).
The Exchange proposes to remove the phrase “provided there is at least 75% common ownership between the Members as reflected on each Member's Form BD, Schedule A” because the term “Affiliated Member” is defined in Options 7, Section 1(c) as a Member that shares at least 75% common ownership with a particular Member as reflected on the Member's Form BD, Schedule A.
Finally, the Exchange proposes to remove the extra period at the end of Options 7, Section 6B.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed changes to its Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for options transaction services that constrain its pricing determinations in that market. The fact that this market is competitive has long been recognized by the courts. In
Numerous indicia demonstrate the competitive nature of this market. For example, clear substitutes to the Exchange exist in the market for options transaction services. The Exchange is only one of sixteen options exchanges to which market participants may direct their order flow. Within this environment, market participants can freely and often do shift their order flow among the Exchange and competing venues in response to changes in their respective pricing schedules. Within the foregoing context, the proposal represents a reasonable attempt by the Exchange to attract additional order flow to the Exchange and increase its market share relative to its competitors.
The Exchange's proposal to pay Priority Customer PIM Break-Up Rebates of $0.25 per contract for Select Symbols and $0.60 per contract for Non-Select Symbols to Electronic Access Members that utilize PIM to execute more than 0.75% of Priority Customer volume in Regular Orders, which would be calculated as a percentage of Customer TCV per day in a given month, for orders under 100 contracts is reasonable because it is designed to incentivize additional participation in PIM by encouraging market participants to send additional order flow to the Exchange in order to benefit from the increased rebates. In particular, the Exchange believes that this proposal will incentivize Electronic Access Members to submit a greater amount of smaller Priority Customer orders into PIM for price improvement with the proposed pricing. The Exchange believes it is reasonable to pay the rebate for orders of 100 contracts or less because the Exchange seeks to incentivize small-sized orders to be solicited for entry into PIM for price improvement.
The Exchange's proposal to pay Priority Customer PIM Break-Up Rebates of $0.25 per contract for Select Symbols and $0.60 per contract for Non-Select Symbols to Members that utilize PIM to execute more than 0.75% of Priority Customer volume in Regular Orders, which would be calculated as a percentage of Customer TCV per day in a given month, for orders under 100 contracts is equitable and not unfairly discriminatory because any Electronic Access Member may participate in a PIM.
The Exchange's proposal to offer another rebate for PIM executions to Electronic Access Members that utilize PIM to execute more than 0.75% of Priority Customer volume in Regular Orders, calculated as a percentage of Customer TCV per day in a given month, for Priority Customer Regular Orders executed in PIM under 100 contracts is reasonable because it is designed to incentivize additional participation in PIM by encouraging market participants to send additional order flow to the Exchange in order to benefit from the increased rebates. In particular, the Exchange believes that this additional rebate will incentivize Electronic Access Members to submit a greater amount of smaller-sized orders to be solicited for entry into PIM for price improvement. Aggregating volume from Affiliated Members in calculating the percentage will allow Electronic Access Members to obtain greater rebates and, thereby, should attract additional Priority Customer order flow to the Exchange. Not paying the $0.11 per contract rebate in the event a Crossing Transaction consists of two Priority Customer Orders is reasonable because Priority Customers pay no fees for PIM.
The Exchange's proposal to offer another rebate for PIM executions to Electronic Access Members that utilize PIM to execute more than 0.75% of Priority Customer volume in Regular Orders, calculated as a percentage of Customer TCV per day in a given month, for Priority Customer Regular Orders executed in PIM under 100 contracts is equitable and not unfairly discriminatory because any Electronic Access Member may enter orders into PIM.
The Exchange's proposal to amend the volume requirement for Priority Customer complex order Tier 7 from the current level of “above 1.350%-2.00%” to “above 1.350%-1.750%” and amend Priority Customer complex order Tier 8 from the current level of “above 2.000%-2.750%” to “above 1.750%-2.750%” is reasonable because by lowering the qualification for Priority Customer complex order Tier 8, which offers a higher rebate of $0.52 per contract for Select Symbols as compared to $0.48 per contract for Priority Customer complex order Tier 7 and a higher rebate of $0.85 per contract for Non-Select Symbols as compared to $0.80 per contract for Priority Customer complex order Tier 7, the Exchange seeks to incentivize Members to continue to bring Priority Customer complex orders specifically to earn the higher Priority Customer complex order Tier 8 associated rebates.
The Exchange's proposal to amend the volume requirement for Priority Customer complex order Tier 7 from the current level of “above 1.350%-2.00%” to “above 1.350%-1.750%” and amend Priority Customer complex order Tier 8 from the current level of “above 2.000%-2.750%” to “above 1.750%-2.750%” is equitable and not unfairly discriminatory because any Member who brings complex order flow to the Exchange may qualify for the rebates. The Exchange believes that the proposed changes to Priority Customer complex order Tiers 7 and 8 are an equitable allocation of rebates because the Exchange seeks to further incentivize all Members to bring a significant amount of complex volume to the Exchange in order to earn the highest range of Priority Customer complex rebates offered by the Exchange. Accordingly, the Exchange believes that the changes to Priority Customer complex order Tiers 7 and 8 are reasonably designed to provide further incentives for all Members interested in meeting the tier criteria to submit additional Priority Customer complex volume to achieve the higher rebates. Further, any Member may choose to qualify for the rebate program by sending complex order flow to the Exchange. By encouraging all Members to bring significant amounts of complex order flow (
The technical amendments proposed herein are non-substantive because these amendments remove redundant defined terms, capitalize a defined term, and correct a grammatical error.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited because other options exchanges offer similar price improvement auctions as well as break-up rebates and customer complex order rebates.
Moreover, as noted above, price competition between exchanges is fierce, with liquidity and market share moving freely between exchanges in reaction to fee and rebate changes. In sum, if the changes proposed herein are unattractive to market participants, it is likely that the Exchange will lose market share as a result. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of members or competing order execution venues to maintain their competitive standing in the financial markets.
The proposal is designed to attract additional liquidity to ISE. Specifically, amending the Priority Customer complex order rebates and adopting two new PIM rebates will incentivize market participants to direct liquidity to the Exchange. All market participants will benefit from any increase in market activity that the proposal effectuates.
The Exchange's proposal to pay Priority Customer PIM Break-Up Rebates within Options 7, Section 3, and offer another rebate for PIM executions within Options 7, Section 6B, do not impose an undue burden on competition because any Electronic Access Member may enter orders into PIM.
The Exchange's proposal to amend the volume requirement for Priority Customer complex order Tier 7 from the current level of “above 1.350%-2.00%” to “above 1.350%-1.750%” and amend Priority Customer complex order Tier 8 from the current level of “above 2.000%-2.750%” to “above 1.750%-2.750%” does not impose an undue burden on competition because it will not place any category of Exchange participant at a competitive disadvantage. Any Member who brings complex order flow to the Exchange may qualify for the rebates. The Exchange seeks to further incentivize all Members to bring a significant amount of complex volume to the Exchange in order to earn the highest range of Priority Customer complex rebates offered by the Exchange. Further, any Member may choose to qualify for the rebate program by sending complex order flow to the Exchange.
The technical amendments proposed herein are non-substantive because these amendments remove redundant defined terms, capitalize a defined term, and correct a grammatical error.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Commission collects fees under various provisions of the securities laws. Section 6(b) of the Securities Act of 1933 (“Securities Act”) requires the Commission to collect fees from issuers on the registration of securities.
Section 6(b)(2) of the Securities Act requires the Commission to make an annual adjustment to the fee rate applicable under Section 6(b).
Section 6(b)(2) sets forth the method for determining the annual adjustment to the fee rate under Section 6(b) for fiscal year 2023. Specifically, the Commission must adjust the fee rate under Section 6(b) to a “rate that, when applied to the baseline estimate of the aggregate maximum offering prices for [fiscal year 2023], is reasonably likely to produce aggregate fee collections under [Section 6(b)] that are equal to the target fee collection amount for [fiscal year 2023].” That is, the adjusted rate is determined by dividing the “target fee collection amount” for fiscal year 2023 by the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2023.
The statutory “target fee collection amount” for fiscal year 2021 and “each fiscal year thereafter” is “an amount that is equal to the target fee collection amount for the prior fiscal year, adjusted by the rate of inflation.”
The most recent CPI-U index value, not seasonally adjusted, available for use by the Commission at the time this fee rate update was prepared was for June 2022. This value is 296.311.
Section 6(b)(6)(B) defines the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2023 as “the baseline estimate of the aggregate maximum offering price at which securities are proposed to be offered pursuant to registration statements filed with the Commission during [fiscal year 2023] as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget . . . .”
To make the baseline estimate of the aggregate maximum offering prices for fiscal year 2023, the Commission is using the methodology it has used in prior fiscal years and that was developed in consultation with the Congressional Budget Office and OMB.
The fiscal year 2023 annual adjustments to the fee rates applicable under Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act will be effective on October 1, 2022.
Accordingly, pursuant to Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act,
By the Commission.
Congress has established a target amount of monies to be collected from fees charged to issuers based on the value of their registrations. This appendix provides the formula for determining such fees, which the Commission adjusts annually. Congress has mandated that the Commission determine these fees based on the “aggregate maximum offering prices,” which measures the aggregate dollar amount of securities registered with the Commission over the course of the year. In order to maximize the likelihood that the amount of monies targeted by Congress will be collected, the fee rate must be set to reflect projected aggregate maximum offering prices. As a percentage, the fee rate equals the ratio of the target amounts of monies to the projected aggregate maximum offering prices.
For 2023, the Commission has estimated the aggregate maximum offering prices by projecting forward the trend established in the previous decade. More specifically, an auto-regressive integrated moving average (“ARIMA”) model was used to forecast the value of the aggregate maximum offering prices for months subsequent to July 2022, the last month for which the Commission has data on the aggregate maximum offering prices.
The following sections describe this process in detail.
First, calculate the aggregate maximum offering prices (AMOP) for each month in the sample (July 2012-July 2022). Next, calculate the percentage change in the AMOP from month to month.
Model the monthly percentage change in AMOP as a first order moving average process. The moving average approach allows one to model the effect that an exceptionally high (or low) observation of AMOP tends to be followed by a more “typical” value of AMOP.
Use the [estimated moving average] [ARIMA] model to forecast the monthly percent change in AMOP. These percent changes can then be applied to obtain forecasts of the total dollar value of registrations. The following is a more formal (mathematical) description of the procedure:
1. Begin with the monthly data for AMOP. The sample spans ten years, from July 2012 to July 2022.
2. Divide each month's AMOP (column C) by the number of trading days in that month (column B) to obtain the average daily AMOP (AAMOP, column D).
3. For each month t, the natural logarithm of AAMOP is reported in column E.
4. Calculate the change in log(AAMOP) from the previous month as Δ
5. Estimate the first order moving average model Δ
6. For the month of August 2022 forecast Δ
7. Calculate forecasts of log(AAMOP). For example, the forecast of log(AAMOP) for October 2022 is given by FLAAMOP
8. Under the assumption that e
9. For October 2022, this gives a forecast AAMOP of $28.053 billion (Column I), and a forecast AMOP of $589.112 billion (Column J).
10. Iterate this process through September 2023 to obtain a baseline estimate of the aggregate maximum offering prices for fiscal year 2023 of $7,398,886,333,730.
1. Using the data from Table A, estimate the aggregate maximum offering prices between 10/01/22 and 9/30/23 to be $7,398,886,333,730.
2. The rate necessary to collect the target $815,557,629 in fee revenues required by Section 6(b) of the Securities Act is then calculated as: $815,557,629 ÷ $7,398,886,333,730 = 0.0001102271.
3. Round the result to the seventh decimal point, yielding a rate of 0.0001102 (or $110.20 per million).
On June 24, 2022, Cboe BZX Exchange, Inc. (“BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds that it is appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the issues raised therein. Accordingly, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to amend a previous order granted by the Commission that permits certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
CCOF II Lux Feeder, SCSp, Carlyle Secured Lending, Inc., Carlyle Credit Solutions, Inc., Carlyle Secured Lending III, Carlyle Tactical Private Credit Fund, TCG BDC SPV LLC, Carlyle Credit Solutions SPV LLC, Carlyle Credit Solutions SPV 2 LLC, OCPC Credit Facility SPV LLC, Carlyle Global Credit Investment Management L.L.C., CSL III Advisor, LLC, Carlyle CLO Management L.L.C., TCG Senior Funding L.L.C., TCG Capital Markets L.L.C., MC UNI LLC, MC UNI Subsidiary LLC, MC UNI Subsidiary II (Blocker) LLC, CPC V, LP, CPC V SPV LLC, CDL 2018-1, L.P., CDL 2018-1 SPV LLC, CDL 2018-2, L.P., Carlyle Ontario Credit Partnership, L.P., Carlyle Ontario Credit SLP L.L.C., Carlyle Ontario Credit Special Limited Partner, L.P., Carlyle Skyline Credit Fund, L.P., CDL 2020-3, L.L.C., Carlyle Ontario Credit Partnership Direct Lending SPV, L.P., Carlyle Skyline Credit Fund, AIV L.P., Carlyle Clover Partners, L.P., Carlyle Clover Partners 2, L.P., Carlyle Revolving Loan Fund, L.P., CREV Coinvestment, L.P., CREV Cayman, L.P., CREV II Cayman, L.P., Carlyle Falcon Structured Solutions, L.L.C., CREV II Coinvestment, L.P., Carlyle Aurora Revolving Loan Fund, L.P., Carlyle Direct Lending Drawdown CLO 2022-1 Partnership, L.P., Carlyle Global Market Strategies CLO 2012-3, Ltd., Carlyle Global Market Strategies CLO 2012-4, Ltd., Carlyle Global Market Strategies CLO 2013-1, Ltd., Carlyle Global Market Strategies CLO 2013-2, Ltd., Carlyle Global Market Strategies CLO 2013-3, Ltd., Carlyle Global Market Strategies CLO 2013-4, Ltd., Carlyle Global Market Strategies CLO 2014-1, Ltd., Carlyle Global Market Strategies CLO 2014-2-R, Ltd., Carlyle Global Market Strategies CLO 2014-3-R, Ltd., Carlyle Global Market Strategies CLO 2014-4-R, Ltd., Carlyle Global Market Strategies CLO 2014-5, Ltd., Carlyle Global Market Strategies CLO 2015-1, Ltd., Carlyle Global Market Strategies CLO 2015-2, Ltd., Carlyle Global Market Strategies CLO 2015-3, Ltd., Carlyle Global Market Strategies CLO 2015-4, Ltd., Carlyle Global Market Strategies CLO 2015-5, Ltd., Carlyle Global Market Strategies CLO 2016-1, Ltd., Carlyle Global Market Strategies CLO 2016-2, Ltd., Carlyle Global Market Strategies CLO 2016-3, Ltd., Carlyle US CLO 2016-4, Ltd., Carlyle US CLO 2017-1, Ltd., Carlyle US CLO 2017-2, Ltd., Carlyle US CLO 2017-3, Ltd., Carlyle US CLO 2017-4, Ltd., Carlyle US CLO 2017-5, Ltd., Carlyle US CLO 2018-1, Ltd., Carlyle US CLO 2018-2, Ltd., Carlyle US CLO 2018-3, Ltd., Carlyle US CLO 2018-4, Ltd., Carlyle US CLO 2019-1, Ltd., Carlyle US CLO 2019-2, Ltd., Carlyle US CLO 2019-3, Ltd., Carlyle US CLO 2019-4, Ltd., Carlyle US CLO 2020-1, Ltd., Carlyle US CLO 2020-A, Ltd., Carlyle CLO Fund, L.P., Carlyle CLO Equity Fund III Offshore, L.P., Carlyle CLO Equity Fund III Onshore, L.P., Carlyle CLO Equity Fund III, L.P., Carlyle C17 CLO, Ltd., Carlyle US CLO 2020-2, Ltd., Carlyle US CLO 2021-A, Ltd., Carlyle US CLO 2021-3S, Ltd., Carlyle US CLO 2021-4, Ltd., Carlyle US CLO 2021-5, Ltd., Carlyle US CLO 2021-6, Ltd., Carlyle US CLO 2021-7, Ltd., Carlyle US CLO 2021-8, Ltd., Carlyle US CLO 2021-10, Ltd., Carlyle US CLO 2021-9, Ltd., Carlyle US CLO 2021-11, Ltd., Carlyle US CLO 2021-J, Ltd., Carlyle US CLO 2022-A, Ltd., Carlyle US CLO 2022-B, Ltd., Carlyle US CLO 2022-F, Ltd., CBAM 2017-1, Ltd., CBAM 2017-2, Ltd., CBAM 2017-
The application was filed on May 27, 2022, and amended on August 1, 2022.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Bruce R. MacNeil, Senior Counsel, or Kaitlin C. Bottock, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' first amended and restated application, dated August 1, 2022, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at, at
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission.
Request for comment.
The Securities and Exchange Commission (SEC) is providing notice that it is seeking comments on its draft 2022-2026 Strategic Plan. The draft Strategic Plan includes a draft of the SEC's mission, vision, values, strategic goals, and planned initiatives.
Comments should be received on or before September 29, 2022.
Comments may be submitted by any of the following methods:
• Use the SEC's internet comment forms (
• Send an email to
• Send paper comments to Vanessa A. Countryman, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Peter Gimbrere, Senior Advisor, Office of the Chief Operating Officer, at (202) 551-4628, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-2521.
The draft strategic plan is available at the Commission's website at
By the Commission.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Minnesota (FEMA-4666-DR), dated 08/09/2022.
Issued on 08/09/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/09/2022, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17569 B and for economic injury is 17570 0.
Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Kentucky (FEMA-4663-DR), dated 07/29/2022.
Issued on 08/12/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration,
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Kentucky, dated 07/29/2022, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Missouri (FEMA-4665-DR), dated 08/08/2022.
Issued on 08/08/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/08/2022, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17563 6 and for economic injury is 17564 0.
Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Missouri (FEMA-4665-DR), dated 08/08/2022.
Issued on 08/08/2022.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
Alan Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/08/2022, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17565 6 and for economic injury is 17566 0.
The Industry Advisory Group (IAG) of the Bureau of Overseas Buildings Operations (OBO), U.S. Department of State, will meet on Thursday, September 15, 2022, from 9:30 a.m. until 4:00 p.m. Eastern Daylight Time. The meeting is open to the public and will be held in-person at the U.S.
This committee serves the U.S. government in a solely advisory capacity concerning industry and academia's latest concepts, methods, best practices, innovations, and ideas related to the OBO mission of providing safe, secure, functional, and resilient facilities that represent the U.S. government to the host nation and support the Department's achievement of U.S. foreign policy objectives abroad.
The meeting will serve as the annual meeting contemplated by the IAG Charter. The majority of the meeting will be devoted to discussions between the Department's senior management and IAG representatives with respect to industry and academia's latest concepts, methods, best practices, innovations, and ideas related to supporting OBO's vital mission. Additionally, time will be provided for members of the public to provide comment.
The public may attend this meeting in-person as seating capacity allows. Admittance to the State Department building will be by means of a pre-arranged clearance list. An open registration announcement will be posted on OBO's website,
Please forward any requests for reasonable accommodation by September 1. You can also visit the OBO website at
Please contact
Pursuant to section 7045(a)(2)(A) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2021 (Div. K, Pub. L. 116-260) (FY 2021 SFOAA) and Department of State Delegation of Authority 513, I hereby certify that the central government of Honduras is:
(i) combating corruption and impunity, including prosecuting corrupt government officials;
(ii) implementing reforms, policies, and programs to increase transparency and strengthen public institutions;
(iii) protecting the rights of civil society, opposition political parties, and the independence of the media;
(iv) providing effective and accountable law enforcement and security for its citizens, and upholding due process of law;
(v) implementing policies to reduce poverty and promote equitable economic growth and opportunity;
(vi) upholding the independence of the judiciary and of electoral institutions;
(vii) improving border security;
(viii) combating human smuggling and trafficking and countering the activities of criminal gangs, drug traffickers, and transnational criminal organizations;
(ix) informing its citizens of the dangers of the journey to the southwest border of the United States; and
(x) resolving disputes involving the confiscation of real property of United States entities.
This certification shall be published in the
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by FHWA and other Federal agencies.
This notice announces actions taken by FHWA and other Federal agencies that are final. The actions relate to the I-495 and I-270 Managed Lanes Study, in Montgomery and Prince George's Counties, Maryland and Fairfax County, Virginia.
By this notice, FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of the Federal agency actions on the highway project will be barred unless the claim is filed on or before January 27, 2023. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period still applies.
Gregory Murrill, Division Administrator, Maryland Division, Federal Highway Administration, George H. Fallon Building, 31 Hopkins Plaza—Suite 1520, Baltimore, Maryland, 21201, Telephone (410) 962-4440.
Notice is hereby given that FHWA and other Federal agencies have taken final agency actions by issuing approvals for the I-495 and I-270 Managed Lanes Study in Montgomery County and Prince George's County in the State of Maryland and Fairfax County in the State of Virginia. The project will replace the 60-year-old American Legion Bridge and deliver two high occupancy toll managed lanes on an approximately 14-mile stretch of I-495 and I-270. The purpose of this project is to develop a travel demand management solution(s) that addresses congestion, improves trip reliability on I-495 and I-270 within the study limits and enhances existing and planned multimodal mobility and connectivity. The needs that are addressed by this project include accommodating existing traffic and long-term traffic growth, enhancing trip reliability, providing additional roadway travel choices, accommodating homeland security, and
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the FHWA Final Environmental Impact Statement (FEIS) for the project, signed June 17, 2022, in the Record of Decision (ROD) for the project, issued on August 25, 2022, and in other project documents in the FHWA administrative record. The FEIS, ROD, and other documents in the FHWA administrative record files are available by contacting FHWA, using the contact information provided above. The FEIS and ROD can be viewed and downloaded from the project Op Lanes Maryland website at
This notice applies to FHWA agency decision as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
1. National Environmental Policy Act [42 U.S.C. 4321- 4351].
2. Federal-Aid Highway Act [23 U.S.C. 109].
3. Clean Air Act [42 U.S.C. 7401-7671(q)].
4. Section 4(f) of the Department of Transportation Act of 1966 [49 U.S.C. 303].
5. Endangered Species Act [16 U.S.C. 1531-1544 and 1536].
6. Fish and Wildlife Coordination Act [16 U.S.C. 661-667(d)].
7. Migratory Bird Treaty Act [16 U.S.C. 703-712].
8. Bald and Golden Eagle Protection Act [16 U.S.C. 668-668c].
9. Section 106 of the National Historic Preservation Act of 1966, as amended [16 U.S.C. 470].
10. Farmland Protection Policy Act [7 U.S.C. 4201-4209].
11. Clean Water Act (Section 319, Section 401, Section 402, Section 404) [33 U.S.C. 1251-1377].
12. Safe Drinking Water Act [42 U.S.C. 300 (f)
13. Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [42 U.S.C. 4601
14. Noise Control Act of 1972 [42 U.S.C. 4901
15. Resource Conservation and Recovery Act [42 U.S.C. 6901-6992(k)].
16. Comprehensive Environmental Response, Compensation, and Liability Act [42 U.S.C. 9601-9675].
17. Americans with Disabilities Act of 1990 [42 U.S.C. 12101].
18. Executive Order 11990 Protection of Wetlands.
19. Executive Order 11988 Floodplain Management.
20. Executive Order 12898 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations.
21. Executive Order 11593 Protection and Enhancement of Cultural Resources.
22. Executive Order 13007 Indian Sacred Sites.
23. Executive Order 13287 Preserve America.
24. Executive Order 13175 Consultation and Coordination with Indian Tribal Governments.
25. Executive Order 11514 Protection and Enhancement of Environmental Quality.
26. Executive Order 13112 Invasive Species.
27. Executive Order 13166 Improving Access to Services for Persons with Limited English Proficiency.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Daimler Trucks North America, LLC, (DTNA), has determined that certain model year (MY) 2019-2022 Thomas Built school buses do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 217,
Send comments on or before September 29, 2022.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:
•
•
•
• Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at
DOT's complete Privacy Act Statement is available for review in a
Daniel Lind, Safety Compliance Engineer, NHTSA, Office of Vehicle Safety Compliance, (202) 366-7235.
As a result, DTNA determined that certain MY 2019-2022 Thomas Built school buses do not fully comply with paragraph S5.5.3(a) of FMVSS No. 217,
DTNA filed an original noncompliance report dated February 9, 2022, and amended the report on April 13, 2022, pursuant to 49 CFR part 573,
This notice of receipt of DTNA's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or another exercise of judgment concerning the merits of the petition.
DTNA says “The relevant labels were designed with letters at least 5 cm and reasonably believed at all relevant times that they complied with FMVSS [No.] 217 under applicable law, including NHTSA's public statements regarding numerical rounding.”
DTNA contends that NHTSA has granted the following petitions in which the letters did not meet the minimum letter height requirement:
• Kia Motors America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance, 69 FR 41332 (July 8, 2004);
• General Motors, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, 81 FR 92963 (July 9, 2004); and
• Hyundai Motor Co., Grant of Petition for Decision of Inconsequential Noncompliance, 69 FR 41568 (July 9, 2004).
DTNA also states that NHTSA has previously granted two inconsequentiality petitions that “could lead to crowding of passengers trying to flee an exit.” In the first case,
DTNA states its belief that although the letter height is 0.1 cm less than the requirement, the letters “are sufficiently large as to aid passengers fleeing an emergency” and that the labels meet all other applicable FMVSSs. DTNA believes that because some of the letters exceed the 5 cm minimum requirement, “the reasonable aggregate perception of a viewer is that the letters are 5 cm or more.” DTNA further stated their belief that the 0.1 cm difference does not obscure the labels or the purpose of the label since the labels are in bold letters that contrast against the background of the labels.
DTNA claims that it is not aware of any complaint, accident, injury, or death resulting from the subject noncompliance.
DTNA contends that “there is a substantial question whether or not there is fair notice as to how a manufacturer is to comply with FMVSS [No.] 217 (and potential scores of other FMVSSs) given the agency's past statements on numerical rounding.” DTNA believes that NHTSA's statements with respect to the rounding method it uses
DTNA concludes by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety and its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject vehicles that DTNA no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after DTNA notified them that the subject noncompliance existed.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for public comment on an extension of a currently approved information collection.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) summarized below will be submitted to the Office of Management and Budget (OMB) for review and approval. The ICR describes the nature of the information collection and its expected burden. The ICR is titled “Heavy Vehicle Crash Avoidance Systems” and is identified by OMB Control Number 2127-0741. It is currently approved through August 31, 2022. This project was delayed due to COVID-19 shutdowns and precautions. The extension is necessary to continue the current data collection to completion. This extension request updates the burden hours to reflect the numbers of respondents that are needed to complete the study, updates to time estimates for responses, and mean hourly rates. Additionally, this notice provides clarification on the burden hours and the costs to the public. A
Comments must be submitted on or before September 29, 2022.
Written comments and recommendations for the proposed information collection, including suggestions for reducing burden, should be submitted to the Office of Management and Budget at
For additional information or access to background documents, contact Jenny Zhang, Office of Vehicle Safety Research, National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, Telephone: 202-366-3973; email address
Under the PRA (44 U.S.C. 3501
CAS technology has been advancing rapidly, with products for heavy commercial vehicles becoming commercially available. These systems present opportunities for improving driver awareness and behavior, improving drivers' responses to potential collisions, and mitigating or preventing collisions when drivers do not respond. The newest generation of CAS technology includes several new features, such as multiple sensors, improvements to radar algorithms, and new features such as full braking in response to static objects or pedestrians. However, it is unknown if this newest generation of products has been able to reduce the prevalence of false or nuisance alerts observed in the previous study, if there are any issues with new types of alerts that have been added since previous studies, or whether drivers have negative perceptions of the technology due to these issues. As these technologies become more popular with fleets, it is important to understand their real-world performance and any unintended consequences that may arise from them.
Data collection began in August 2021 after COVID delays and a shortage of chips necessary for use in the data acquisition system necessary for the naturalistic driving portion of the study. As of December 31, 2021, one respondent has completed the study, three are in the field study portion, and one has completed the informed consent document and pre-field study surveys but still needs to go through the installation portion of stage one and stages two to three of the study. Information in this extension requests refers to the respondents and burden associated with completing the study.
The information to be collected will be used as follows:
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• Each participating driver will have a data acquisition system (DAS) installed in their vehicle for approximately three months while they perform their normal work duties. This system will collect video of the driver and forward roadway, telemetry, and vehicle network data related to driving, and activations of the vehicle's CAS.
The Texas Department of Transportation (Texas DOT) expressed their support of the collection as “inherent to NHTSA's role in understanding and establishing standards for vehicle safety.” The Texas DOT further stated that “[i]t is critical that NHTSA complete its studies to capture the most effective and valuable advanced driver assistance systems (ADAS) available.” The second comment was submitted by the National Association of Mutual Insurance Companies (NAMIC) and expressed support for the data collection in order to further assess the efficacy of the systems and the human interaction with them. NAMIC provides, in direct response to comment about the burden estimates in the 60-day Notice, “the burdens estimated by NHTSA for the collection seem accurate and appropriate to obtain the quality and quantity of information sought by NHTSA for this valid purpose.”
In addition to the comments received, an article titled “
NHTSA's goal is to collect field evaluation data from a total of 150 respondents. To date, one participant has fully completed the study. In order to collect complete field evaluation data from an additional 149 participants, and to account for drop-outs, NHTSA estimates that it will need to recruit an additional 170 respondents for initial phases of the study.
The above table reflects the annual burden hours to be 123.6 to complete data collection. While the table reflects opportunity costs, this is not a burden incurred by the public for this information collection. The annual burden cost to respondents is zero.
The previous notice estimated total burden hours for this study to be 193.5 total. The total number of burden hours to complete data collection is now 206 based on updates to the time for the Informed Consent and the Demographic Questionnaire. Opportunity costs have been updated to reflect current average hourly wages; however, NHTSA estimates these opportunity costs to be fully offset by compensation provided to the respondents for participation.
Due to COVID-19 shutdowns and precautions, data collection efforts were suspended. NHTSA anticipates additional time beyond the August 31, 2022, expiration date of the currently approved collection to complete this effort. The federal government began this study at $2,581,075 in contract expenses and has added expenses due to the time delays and resulting changes in technology. The total cost expected at this time is $2,954,970, with an annualized cost to the federal government over the expected study time-to-completion of $402,950.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice of availability.
This notice announces publication by NHTSA of calendar year 2022 text and data for the Insurance Cost Information Booklet. This information is intended to assist prospective purchasers in comparing differences in passenger vehicle collision loss experience that could affect auto insurance costs.
Interested persons may obtain a copy of this booklet or read background documents by going to
Ms. Carlita Ballard, Office of International Policy, Fuel Economy and Consumer Programs, NHTSA, W43-439, West Building, 1200 New Jersey Avenue SE, Washington, DC 20590. Ms. Ballard's telephone number is (202) 366-5222. Her fax number is (202) 493-2990.
Pursuant to NHTSA's regulation in title 49 of the Code of Federal Regulations, part 582,
Under the law, NHTSA produces a new version of this booklet with updated information provided by the Highway Loss Data Institute's (HLDI) April 2021 and 2022 Insurance Collision Reports. The HLDI is a nonprofit research organization that publishes insurance loss statistics on automobiles and other passenger motor vehicle models driven on United States and Canadian highways. This notice announces NHTSA's publication of calendar year 2022 text and data for the Insurance Cost Information Booklet.
Consumers may obtain a copy of the online booklet through the NHTSA web page at:
Issued in Washington, DC under authority delegated in 49 CFR 1.95, 501.5 and 501.8.
Department of the Treasury, Office of the Comptroller of the Currency (OCC).
Notice of federal advisory committee meeting.
The OCC announces a meeting of the Mutual Savings Association Advisory Committee (MSAAC).
A public meeting of the MSAAC will be held on Tuesday, September 20, 2022, beginning at 8:30 a.m. Eastern Daylight Time (EDT). The meeting will be in person and virtual.
The OCC will host the September 20, 2022 meeting of the MSAAC at the OCC's offices at 400 7th Street SW, Washington, DC 20219 and virtually.
Michael R. Brickman, Deputy Comptroller for Thrift Supervision, (202) 649-5420, Office of the Comptroller of the Currency, Washington, DC 20219. You also may access prior MSAAC meeting materials on the MSAAC page of the OCC's website at Mutual Savings Association Advisory Committee.
Under the authority of the Federal Advisory Committee Act, 5 U.S.C. app. 2, and the regulations implementing the Act at 41 CFR part 102-3, the OCC is announcing that the MSAAC will convene a meeting on Tuesday, September 20, 2022. The meeting is open to the public and will begin at 8:30 a.m. EDT. The purpose of the meeting is for the MSAAC to advise the OCC on regulatory or other changes the OCC may make to ensure the health and viability of mutual savings associations. The agenda includes a discussion of current topics of interest to the industry.
Members of the public may submit written statements to the MSAAC. The OCC must receive written statements no later than 5:00 p.m. EDT on Thursday, September 15, 2022. Members of the public may submit written statements to
Members of the public who plan to attend the meeting should contact the OCC by 5:00 p.m. EDT on Thursday, September 15, 2022, to inform the OCC of their desire to attend the meeting and whether they will attend in person or virtually, and to obtain information about participating in the meeting. Members of the public may contact the OCC via email at
Internal Revenue Service, Treasury.
Notice of closed meeting of Art Advisory Panel.
Closed meeting of the Art Advisory Panel will be held virtually by
The meeting will begin at 10:30 a.m. Eastern Time. The meeting will be held September 22, 2022.
The closed meeting of the Art Advisory Panel will be held virtually by
Robin B. Lawhorn, 400 West Bay Street, Suite 252, Jacksonville, FL 32202. Telephone (904) 661-3198 (not a toll-free number).
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. app., that a closed meeting of the Art Advisory Panel will be held virtually by
The agenda will consist of the review and evaluation of the acceptability of fair market value appraisals of works of art involved in Federal income, estate, or gift tax returns. This will involve the discussion of material in individual tax returns made confidential by the provisions of 26 U.S.C. 6103.
A determination as required by section 10(d) of the Federal Advisory Committee Act has been made that this meeting is concerned with matters listed in sections 552b(c)(3), (4), (6), and (7), of the Government in the Sunshine Act, and that the meeting will not be open to the public.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning final regulations in Treasury Decision (TD) 9584 relating to interest paid to nonresident aliens, TD 9734 relating to dividend equivalents from sources within the United States, Form 1042, Schedule Q (Form 1042), Form 1042-S, and Form 1042-T.
Written comments should be received on or before October 31, 2022 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection should be directed to Jon Callahan, (737) 800-7639, at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The IRS is currently seeking comments concerning the following information collection tools, reporting, and record-keeping requirements:
Form 1042 is used by withholding agents to report tax withheld at source on certain income paid to nonresident alien individuals, foreign partnerships, and foreign corporations to the IRS. Schedule Q (Form 1042) is used withholding agents to report the tax liability of a qualified derivatives dealer (QDD). Form 1042-S is used by withholding agents to report income and tax withheld to payees. A copy of each 1042-S is filed electronically or with Form 1042 for information reporting purposes. The IRS uses this information to verify that the correct amount of tax has been withheld and paid to the United States. Form 1042-T is used by withholding agents to transmit paper Forms 1042-S to the IRS.
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 29, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
Departmental Offices, Department of the Treasury.
Notice of information collection; request for comment.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 29, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 29, 2022 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
SIPPRA authorizes Treasury to conduct a request for proposals for projects, make award determinations, and enter into project award agreements. Treasury intends to publish a Notice of Funding Availability (NOFA) seeking applications for projects and anticipates that ten or more persons will respond to its NOFA announcing availability of funding for SIPPRA projects.
Although Treasury is asking applicants to use the SF-424 and SF-425 families of common forms for their applications and reports, Treasury also expects to solicit additional detailed information from applicants to effectively and efficiently assess and evaluate whether applications for projects comply with statutory requirements. This request includes only the burden for this additional information. The burden for the SF-424 forms is covered under OMB Control Numbers 4040-0004, 4040-0006, 4040-0007, 4040-0008, 4040-0009, 4040-0010, and 4040-0013. The burden for the SF-425 form is covered under OMB Control Number 4040-0014. The additional information includes the following components:
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○ Notice of Intent to Apply (optional);
○ Project Narrative, to include an Executive Summary;
○ Project Narrative Attachments, to include project budget, narrative statement addressing partnership agreements, an estimate of the value to the federal government of the interventions being proposed in the project, partner qualifications, independent evaluator qualifications, evaluation design plan, independent evaluator contract, outcome valuation (for which Treasury's SIPPRA website will provide guidance to assist applicants), legal compliance, and (optional) additional supporting documentation such as a preexisting feasibility study;
○ Treasury Office of Civil Rights and Diversity Assurances and Certifications, Terms and Conditions, and Compliance Data;
○ Additional documentation related to Title VI of the Civil Rights Act;
○ Copy of application proposing privileged or confidential information to be redacted;
○ Administrative Reporting, including a Quarterly Performance Report, Evaluation Progress Reports, and Final Evaluation Report; and
○ Records Retention requirements.
The information collected under this NOFA: (1) Identifies eligible recipients and activities; (2) helps identify which applications sufficiently address all statutory requirements and which proposed projects are the most competitive; (3) determines the appropriate amount of funding; (4) allows evaluation of compliance with SIPPRA and Federal laws and policies on grants
The Notice of Intent is optional; it will assist Treasury and the Federal Interagency Council on Social Impact Partnerships (Interagency Council) in estimating the number of applications to be received, and thus, enable them to conduct intake and evaluation of applications as efficiently and economically as possible.
The application Executive Summary will assist Treasury and the Interagency Council in streamlining the processing of applications and in optimizing the eligibility phase of application review. The application standard forms, Project Narrative, and Project Narrative attachment components of the grant application are intended to provide Treasury with the information necessary to properly evaluate and assess whether applications include statutorily mandated information. Additionally, certain components of the application, in particular the evaluation design plan and outcome valuation, will enable the Interagency Council to determine whether to make statutorily mandated certifications regarding the proposed projects.
To comply with the OMB Uniform Guidance performance and financial monitoring and reporting requirements,
Treasury intends to require recipients under this NOFA to comply with the OMB Uniform Guidance's record retention requirement,
SIPPRA establishes a Commission on Social Impact Partnerships (Commission) whose principal obligation is to make recommendations to Treasury regarding the funding of SIPPRA projects and feasibility studies.
Also, applicants must provide qualifications of key project personnel and partners. Applicants may voluntarily provide curriculum vitae for key project personnel and partners, but the application will not require that personally identifiable information (PII) is collected.
For several reasons, Treasury expects to make a number of changes in the second SIPPRA NOFA relative to the first SIPPRA NOFA. Treasury understands that Congress intended for SIPPRA to be a demonstration program, which suggests that trying different strategies and approaches in the second NOFA and comparing them to those used in the first NOFA may be consistent with congressional intent. Treasury also believes that the revisions it plans may increase the number of applications it receives, reduce the burden on applicants and stakeholders, reduce application review time, and enhance the success of projects. Treasury is interested in receiving comments on applicants' experiences with the application process under the first NOFA and suggestions on revisions Treasury should consider in the second NOFA to make the application and application review process more user-friendly and efficient. The most salient revisions Treasury plans to make in the second NOFA are addressed below.
Treasury anticipates providing more guidance, expanded FAQs, and additional online resources to prospective applicants for the second NOFA. More specifically, Treasury plans to expand its guidance on evaluation plan design, causal impact measurement requirements, and quasi-experimental design criteria. Treasury anticipates the guidance it plans to provide in the second NOFA will reduce applicants' burden during the application process and recipients' burden throughout the project performance period. Treasury also anticipates this guidance will be one means by which Treasury and the Interagency Council may be able to reduce application review time.
Treasury also plans to replace the outcome valuation methodology, budget impact analysis, required in the first NOFA, with a different methodology, benefit-cost analysis. Treasury is planning on making this change because testing different approaches to value determination may help broaden insights in valuation practices in the pay for success field.
Through its outreach with Federal agencies and external stakeholders, Treasury has identified the need to make the application and the application review process more efficient for all parties. Treasury invites suggestions and specific strategies and efficiencies that Treasury may incorporate into the second NOFA that will increase administrative efficiencies to the extent permitted under the statute and other federal laws and regulations.
Under the first NOFA, Treasury provided applicants three months from the date of NOFA publication in the
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. app. 2, that the Research Advisory Committee on Gulf War Veterans' Illnesses will meet at the Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420 in Room 230. The meeting sessions will begin and end as follows:
All sessions will be open to the public. For interested parties who cannot attend in person, this meeting will also be available by videoconference by connecting to Webex at the following URLs:
The purpose of the Committee is to provide advice and make recommendations to the Secretary of Veterans Affairs on proposed research studies, research plans, and research strategies relating to the health consequences of military service in the Southwest Asia theater of operations during the Gulf War in 1990-91.
The Committee will review VA program activities related to Gulf War Veterans' illnesses and updates on relevant scientific research published since the last Committee meeting. This meeting will focus on 1990-91 military exposures, 4-year committee accomplishments and future directions.
The meeting will include time reserved for public comments 30 minutes before the meeting closes each day. Individuals who wish to address the Committee may submit a 1-2 page summary of their comments for inclusion in the official meeting record. Members of the public may submit written statements for the Committee's review or seek additional information by contacting Dr. Karen Block, Designated Federal Officer, at 202-443-5600, or at
(a) protecting taxpayer resources, including by ensuring strong compliance and accountability measures for funding recipients;
(b) meeting economic, sustainability, and national security needs, including by building domestic manufacturing capacity that reduces reliance on vulnerable or overly concentrated foreign production for both leading-edge and mature microelectronics;
(c) ensuring long-term leadership in the microelectronics sector, including by establishing a dynamic, collaborative network for microelectronics research and innovation to enable long-term United States leadership in critical industries;
(d) catalyzing private-sector investment, including by reducing risk and maximizing large-scale private investment in production, breakthrough technologies, and worker and workforce development;
(e) generating benefits—such as well-paying, high-skilled union jobs and opportunities for startups; small businesses; and minority-owned, veteran-owned, and women-owned businesses—for a broad range of stakeholders and communities, including by investing in disadvantaged communities and by partnering with State, local, Tribal, and territorial governments and with institutions of higher education; and
(f) strengthening and expanding regional manufacturing and innovation ecosystems, including by investing in suppliers, manufacturers, workforce development, basic and translational research, and related infrastructure and cybersecurity throughout the microelectronics supply chain, and by
(b) The Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and the Director of the Office of Science and Technology Policy shall serve as Co-Chairs of the Steering Council.
(c) In addition to the Co-Chairs, the Steering Council shall consist of the following members:
(d) The Co-Chairs may create and coordinate subgroups consisting of Steering Council members or their designees, as appropriate.
(e) The Co-Chairs may consult with leaders from industry, labor unions and other worker organizations, institutions of higher education, research institutions, and civil society, as appropriate and consistent with law, to provide individual perspectives and advice to the Steering Council on the effective implementation of the Act.
(f) The Co-Chairs may consult with the President's Council of Advisors on Science and Technology, as appropriate and consistent with law, to provide advice to the Steering Council.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
U.S. Office of Personnel Management (OPM).
Notice.
This gives notice of all positions in the Senior Executive Service (SES) that were career reserved during calendar year 2019.
Julia 53098, Senior Executive Resources Services, Senior Executive Services and Performance Management, Employee Services, 202-606-2246.
Below is a list of titles of SES positions that were career reserved at any time during calendar year 2019, regardless of whether those positions were still career reserved as of December 31, 2019. Section 3132(b)(4) of title 5, United States Code, requires that the head of each agency publish such lists by March 1 of the following year. The Office of Personnel Management is publishing a consolidated list for all agencies.
U.S. Citizenship and Immigration Services, DHS.
Final rule.
On September 28, 2021, the Department of Homeland Security (DHS) published a notice of proposed rulemaking (NPRM or proposed rule) that proposed to establish regulations to preserve and fortify the Deferred Action for Childhood Arrivals (DACA) policy to defer removal of certain noncitizens who years earlier came to the United States as children, meet other criteria, and do not present other circumstances that would warrant removal. After a careful review of the public comments received, DHS is now issuing a final rule that implements the proposed rule, with some amendments.
This rule is effective October 31, 2022.
Rená Cutlip-Mason, Chief, Office of Policy and Strategy, Division of Humanitarian Affairs, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000.
On June 15, 2012, then-Secretary of Homeland Security (Secretary) Janet Napolitano issued a memorandum providing new guidance for the exercise of prosecutorial discretion with respect to certain young people who came to the United States years earlier as children, who have no current lawful immigration status, and who were already generally low enforcement priorities for removal.
1. Came to the United States under the age of 16;
2. Continuously resided in the United States for at least 5 years preceding June 15, 2012, and were present in the United States on that date;
3. Are in school, have graduated from high school, have obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
4. Have not been convicted of a felony offense, a significant misdemeanor offense, or multiple misdemeanor offenses, or otherwise do not pose a threat to national security or public safety; and
5. Were not above the age of 30 on June 15, 2012.
Individuals who request relief under this policy, meet the criteria above, and pass a background check may be granted deferred action.
In establishing this policy, known as DACA, then-Secretary Napolitano emphasized that for the Department to use its limited resources in a sensible manner, it necessarily must exercise prosecutorial discretion. Then-Secretary Napolitano observed that these “young people . . . were brought to this country as children and know only this country as home” and as a general matter “lacked the intent to violate the law.” She reasoned that limited enforcement resources should not be expended to “remove productive young people to countries where they may not have lived or even speak the language.”
Since 2012, more than 825,000 people have received deferred action under the DACA policy.
For DACA recipients and their family members, receiving deferred action has increased DACA recipients' sense of acceptance and belonging to a community, increased their sense of hope for the future, and has given them the confidence to become more active members of their communities and increase their civic engagement.
As a result of these educational and employment opportunities, DACA recipients make substantial contributions in taxes and economic activity.
This rule responds to President Biden's memorandum on January 20, 2021, “Preserving and Fortifying Deferred Action for Childhood Arrivals (DACA),”
DACA reflects a judgment that these immigrants should not be a priority for removal based on humanitarian concerns and other considerations, and that work authorization will enable them to support themselves and their families, and to contribute to our economy, while they remain.
This rule embraces the consistent judgment that has been maintained by the Department—and by three presidential administrations since the policy first was announced—that DACA recipients should not be a priority for removal.
This rule recognizes that enforcement resources are limited, that sensible priorities are vital to the effective use of those resources, and that it is not generally the best use of those limited resources to remove from the United States those who arrived here as young people, have received or are pursuing an education or served in the military, have no significant criminal history, do not pose a threat to national security or public safety, and are valued members of our communities. It recognizes that, as a general matter, DACA recipients, who came to this country many years ago as children and may not even speak the language of the country in which they were born, lacked the intent to violate the law. It reflects the conclusion that, while they are in the United States, they should have access to a process that, operating on a case-by-case basis, may allow them to work to support themselves and their families, and to contribute to the economy in multiple ways. This rule also accounts for the momentous decisions DACA recipients have made in ordering their lives in reliance on and as a result of this policy, and it seeks to continue the benefits that have accrued to DACA recipients, their families, their communities, their States, and the Department itself that have been made possible by the policy. And as discussed in detail elsewhere, this rule reflects DHS's continued belief, supported by available data, that DACA does not have a substantial effect on lawful or unlawful immigration into the United States. DHS emphasizes that the DACA policy set forth in this rule is not a permanent solution for the affected population, and legislative efforts to find such a solution remain critical.
DHS recognizes that this rule comes in the wake of prior attempts to wind down and terminate the DACA policy.
On July 16, 2021, the U.S. District Court for the Southern District of Texas vacated the 2012 DACA policy, finding, among other things, that it was contrary to the Immigration and Nationality Act of 1952 (INA).
The proposed rule set forth DHS's proposal to preserve and fortify the DACA policy, which allows for the issuance of deferred action to certain young people who came to the United States many years ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities.
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In addition to retaining these longstanding DACA policies and procedures, the proposed rule proposed the following changes:
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Following careful consideration of public comments received, DHS has made modifications to the regulatory text proposed in the proposed rule, as described below. The rationale for the proposed rule and the reasoning provided in that rule remain valid, except as described in this regulatory preamble. Section II of this preamble includes a detailed summary and analysis of the comments. Comments may be reviewed in the Federal Docket Management System at
• The NPRM proposed to codify at 8 CFR 236.23(a)(1) a modification of the existing filing process and fees for DACA by making it optional to submit a request for employment authorization on Form I-765, Application for Employment Authorization (“unbundled process”), and charging a fee of $85 for Form I-821D, Consideration of Deferred Action for Childhood Arrivals. That proposal would have maintained the current total cost to DACA requestors who also file Form I-765 of $495 ($85 for Form I-821D plus $410 for Form I-765). Upon careful consideration of comments received on this NPRM provision, DHS is adopting the suggestion of a majority of commenters who addressed this provision to retain the existing requirement that DACA requestors file Form I-765 and Form I-765WS concurrently with the Form I-821D (“bundled process”). However, in this rule DHS adopts the fee structure proposed in the NPRM of an $85 filing fee for Form I-821D, as well as a Form I-765 filing fee, currently set at $410. This change codifies in regulation the process that has been in place since the Napolitano Memorandum was implemented in 2012, while maintaining a consistent overall current cost to requestors.
• The NPRM proposed to codify at 8 CFR 236.22(b)(6) the longstanding criminal history, public safety, and national security criteria found in the Napolitano Memorandum. Upon careful consideration of comments received on this NPRM provision, DHS is revising it to further clarify that, consistent with longstanding DACA policy, expunged convictions, juvenile delinquency adjudications, and immigration-related offenses characterized as felonies or misdemeanors under State laws are not considered automatically disqualifying
• The NPRM proposed to codify at 8 CFR 236.23(d)(1) and (2) DHS's longstanding DACA termination policy, prior to the preliminary injunction issued in
• The NPRM proposed at 8 CFR 236.23(d)(3) that employment authorization would terminate automatically upon termination of DACA. This provision included a cross-reference to 8 CFR 274a.14(a)(1)(iv). However, on February 8, 2022, 8 CFR 274a.14(a)(1)(iv) was vacated in
• In this final rule, DHS is clarifying at 8 CFR 236.21(d) that this subpart rescinds and replaces the DACA guidance set forth in the Napolitano Memorandum and from this point forward governs all current and future DACA grants and requests. DHS also clarifies that existing recipients need not request DACA anew under this new rule to retain their current DACA grants. Historically, DHS has promulgated rules without expressly rescinding prior guidance in the regulatory text itself. However, DHS has chosen to depart from previous practice in light of the various issues and concerns raised in ongoing litigation challenging the Napolitano Memorandum.
This rule will result in new costs, benefits, and transfers. To provide a full understanding of the impacts of the DACA policy, DHS considered the potential impacts of this rule relative to two baselines. The No Action Baseline represents a state of the world under the DACA policy; that is, the policy initiated by the guidance in the Napolitano Memorandum in 2012 and prior to the July 16, 2021
Table 1 provides a detailed summary of the provisions and their estimated impacts relative to the No Action Baseline. Table 2 provides a detailed summary of the provisions and their estimated impacts relative to the Pre-Guidance Baseline.
DHS received 16,361 public comments during the comment period for the NPRM. The majority of comment submissions, excluding duplicates, non-germane submissions, and a submission that contained only reference material, originated from individual or anonymous commenters. The remaining comments came from a range of entities, including advocacy groups, schools and universities, legal services providers, religious organizations, businesses, professional organizations, State and local government, Federal and State elected officials, and unions. Many comments expressed general support for the rule, with only 3 percent of the total expressing generalized opposition. A large majority of the comments indicated support for the proposal to preserve and fortify DACA, while opposing or offering suggestions to change some provisions.
Of the submissions expressing generalized opposition to the NPRM, only one was from a government entity; all other government submissions expressed generalized support or support for some provisions of the rule while suggesting revisions or providing feedback for others. DHS has reviewed all the public comments received, and below addresses the comments related to the substance of the NPRM.
Another commenter said that they were pleased that the rule clarifies who is eligible for DACA. Another commenter remarked that the proposed rule would affect government stakeholders or departments, including DHS, ICE, CBP, EOIR, and State Departments of Motor Vehicles, and that retaining DACA best respects the rights of these stakeholders.
Regarding the comment that retaining the DACA policy respects the rights of impacted government stakeholders, DHS agrees that this rule reflects the Department's strong interests in the effective and judicious use of its limited enforcement resources. This preamble also discusses comments submitted by a range of government entities and officials.
Some commenters stated that writing the DACA policy into Federal regulations would be an essential step to fortifying DACA and protecting recipients, especially considering the adverse rulings in recent litigation. Other commenters expressed their concern that if DACA were revoked, their lives in the United States would be uprooted and their ability to pursue their goals would be hindered. They also stated the positive traits of DACA recipients and referred to them as kind and hardworking people. A commenter cited an article from a Brookings Institution blog, Brookings Now, to emphasize the importance of the policy in allowing children to remain with their families, attend school, and earn money to support themselves.
Some commenters said that, because of DACA, recipients can obtain driver's licenses, auto insurance, bank accounts, Social Security numbers, and other benefits that are valuable to their daily lives. A commenter stated some States offer benefits to DACA recipients that they otherwise would be unable to obtain, such as in-state tuition and access to REAL IDs. Several commenters said that many DACA recipients financially support their families and children who also are living in the United States.
A commenter stated that DACA should not have to be reinstated by each president, as the issue of immigration is
Multiple commenters provided statistics on the number of DACA recipients who are enrolled in postsecondary educational programs. A group of commenters representing multiple States estimated that up to 37,000 students in the California Community Colleges system are DACA-eligible noncitizens, more than 19,000 post-secondary students are DACA recipients in New York, approximately 9,000 post-secondary students in New Jersey are DACA recipients or DACA-eligible, and that thousands more DACA recipients are enrolled in public universities and colleges in other States. The commenters described multiple State regimes under which DACA recipients or DACA-like populations may qualify for in-state tuition or other financial assistance. For instance, the commenters wrote that Minnesota “has invested in the education of individuals receiving DACA by extending student childcare grants, teacher candidate grants, and student loan programs to DACA recipients.”
Similarly, a commenter stated DACA plays a major role in higher education affordability, remarking that 83 percent of DACA recipients attend public institutions, a fact that, according to the commenter, makes accessibility to in-state tuition and financial aid a vitally important issue. The commenter wrote that 8 States require undocumented students to have DACA in order to access in-state tuition; 17 additional States and the District of Columbia allow the State's eligible undocumented students, including DACA recipients, to access in-state tuition and State financial aid; and 4 States allow their State's undocumented students access to in-state tuition but not financial aid. The same commenter stated that work authorization enables DACA recipients to legally work, save, and pay for their higher education expenses.
A commenter stated the proposed rule would help numerous DACA recipient students continue to receive the benefits of DACA such as an employment authorization document to ease the financial burden of pursuing higher education and the opportunity to obtain an advance parole document. A commenter representing a higher education institution expressed support for the proposed rule and commented that many opportunities for young people to learn and develop skills are employment-based, leaving students without employment authorization at a significant disadvantage academically, professionally, and socially. The commenter stated that students without employment authorization may lack income, resume-building experiences, and opportunities to build networks among peers, staff, and faculty, whereas DACA recipient students can engage in on-campus jobs and employment-based research opportunities, and cautiously plan for their futures.
Another commenter stated that DACA facilitates the healthy development of recipients' children. The commenter remarked that DACA helps families feel comfortable accessing public programs that support their children and provides income that increases access to healthcare, nutritious food, and upward mobility. Relatedly, a commenter stated the DACA policy protects public health because DACA recipients are more likely to have health insurance than similarly situated undocumented noncitizens who do not have DACA. The commenter said DACA reduces the overall burden on the healthcare system because individuals with lawful status and health insurance are more likely to seek out preventive care, rather than relying on more expensive, more intrusive, and often less successful emergency-department care. According to the commenter, this increased ability to access healthcare also makes it easier to correctly monitor the public health of the population and respond to public health issues effectively.
Other commenters stated that DACA reduces noncitizens' vulnerability to domestic and sexual violence and other exploitation by helping to ensure they can live safely and be economically independent. One commenter said that DACA promotes safety for survivors of domestic violence, sexual assault, trafficking and other gender-based violence by eliminating the fear that their abusers can contact immigration authorities if they seek help or attempt to leave an abusive situation. The commenter went on to say that access to work authorization through DACA further strengthens survivors' ability to leave abusive or exploitative situations by enabling them to support themselves and their families.
In addition, DHS agrees that there are reports concluding that by providing recipients with a measure of security with respect to immigration matters, the DACA policy reduces psychological stress and anxiety while also decreasing barriers to interacting with the healthcare system, helping to promote early detection and treatment of medical conditions before they worsen into serious conditions requiring more extensive treatment. DHS also notes that studies have demonstrated that uncertainty regarding one's immigration situation contributes to increased levels of stress, and that DACA may reduce such stress for its recipients.
DHS also appreciates commenters stating that the DACA policy supports safety for survivors of gender-based violence, trafficking, and abuse by enabling economic self-sufficiency and minimizing fear of an abuser reporting them to immigration authorities, thereby providing recipients with more confidence to seek help or leave abusive or exploitative circumstances. DHS notes the existence of multiple additional immigration options specifically available to certain victims of crimes.
DHS has evaluated the relevant reliance interests—and the policy stakes more generally—with the Court's decision in mind. With respect to reliance interests in particular, DHS recognizes, as the Court did, that the expressly limited and discretionary nature of the deferred action conferred upon individuals under the DACA policy (who are not guaranteed a grant or renewal of DACA, whose DACA may be terminated in USCIS' discretion, and who have no right or entitlement to remain in the United States) is relevant to the assessment of reliance interests. At the same time, DHS is aware of the real-world decisions that approximately 825,000 DACA recipients and their families, employers, schools, and communities have made over the course of more than 10 years of the policy being in place. While acknowledging and emphasizing the absence of a legal right, DHS would hesitate to conclude that reliance on DACA was “unjustified” or entitled to significantly “diminished weight” in light of the express limitations in the Napolitano Memorandum.
DHS appreciates the recommendation for a grace period, and observes that the Court discussed this possibility as well.
DHS acknowledges that while new initial DACA requestors' reliance interests may be less robust or clear as those of current DACA recipients, it is also true that among prospective DACA requestors, there are many who have not yet “aged in” to request deferred action under DACA. These individuals and their families, schools, and communities may have deferred or made choices in reliance upon their future ability to request DACA, even as DHS's decision whether to confer deferred action to a DACA requestor remains a fully discretionary case-by-case decision, and even though deferred action itself does not provide any right or entitlement to remain in the United States.
One commenter stated that the proposed rule made an incorrect and unfounded assumption that jobs held by DACA recipients cannot be replaced by someone else. Instead, the commenter stated, terminating the DACA policy or its employment authorization would provide more jobs for U.S. workers, benefit communities, reduce unemployment rates, and potentially increase the wages of U.S. workers. The commenter stated that DHS's logic in analyzing the impacts of terminating the DACA policy is flawed, because: (1) jobs currently held by DACA recipients can be replaced by someone else and (2) the time businesses need to find replacement workers does not differ from that involved in regular worker turnover in a market economy and is not based on workers' immigration status.
Another commenter stated that DHS made a “misleading and plainly wrong claim” that DACA recipients have been essential workers during the COVID-19 pandemic, arguing that, while some may indeed be essential workers, most are not. The commenter suggested that, if DHS wanted to prioritize this population for deferred action, it could have established additional requirements for DACA eligibility, such as employer sponsorship or evidence of being an essential worker.
In contrast, one commenter stated that DACA has a positive effect on wages, as compared to a circumstance where unauthorized noncitizens continue to work. The commenter wrote that according to the Department of Labor's National Agricultural Worker Survey, more than two thirds of farmworkers are foreign-born and a majority of those lack work authorization.
As discussed in further detail in Section II.A.5, DHS cannot quantify the degree to which DACA recipients are substituted for other workers in the U.S. economy since this depends on factors such as industry characteristics as well as on the hiring practices and preferences of employers, which depend on many factors, such as worker skill levels, experience levels, education levels, and training needs, and labor market regulations, among others. As noted, labor market conditions are not static; the hiring of DACA workers might contribute to expansion in business activity and potentially in increased hiring of American workers.
With regard to wage rates, DHS recognizes that, in general, any increase in labor supply or improvement in labor supply competition may potentially affect wages and, in turn, the welfare of other workers and employers.
With respect to comments regarding the assumptions and methodology for the labor market impact portion of the NPRM, the bases for DHS's assumptions and estimates of labor market impacts was discussed extensively in Section V.A.4.D. of the NPRM. This section included a discussion of the 2017 National Academies of Sciences, Engineering, and Medicine (NAS) Report, wherein an expert panel of immigration economists examined the peer-reviewed literature on displacement and wage effects of immigrants on native workers and attempted to describe what consensus exists around decades of findings. To the extent that this panel found research indicating that noncitizen workers displace or negatively affect the wages of U.S. citizen workers, most of these effects occur with the lowest wage jobs, potentially affecting teens and individuals without a high school diploma.
Given the lack of additional evidence provided by the commenter on the impact of DACA recipients participation in the labor force, DHS has not substantially revised its analysis in response to this comment.
Another commenter remarked that the $93 million allocated to DACA adjudications would have been better spent upgrading USCIS' IT systems and expanding online filing capabilities. Commenters also stated that it is unfair to those seeking U.S. citizenship by following immigration laws and that DACA would make things worse for those legally trying to become citizens and easier for those who wish to use the United States for their own benefit. Another commenter urged USCIS to devote its limited resources to lawful immigration programs that Congress has authorized instead of diverting manpower, office space, and agency funds to “amnesty programs” benefiting undocumented individuals and “those who profit off of continuous illegal immigration into the United States.”
In the NPRM and related material,
Citing their own research, another commenter stated DACA's implementation increased the education, employment, and wages of DACA recipients while also boosting tax revenue and output. The commenter cited its 2019 study that found that eliminating DACA would result in the DACA population losing about $120 billion in income, the Federal Government losing approximately $72 billion in tax revenue, and States and local governments losing about $15 billion in tax revenue over the 2020-2029 decade.
In addition to comments noted above regarding potential displacement of workers by DACA recipients, multiple commenters suggested DACA recipients help to fill labor gaps amid labor shortages in the United States, with a joint comment pointing to the 8.4 million job seekers as compared to the 10 million job openings in the United States as of September 2021. These commenters cited statistics that 46 percent of DACA recipients have a bachelor's degree or higher,
Pointing to other labor market and economic benefits of DACA, a commenter cited a large study showing that DACA recipients play a critical role in the creation of jobs and increasing spending in local economies.
DHS also acknowledges some commenters' concerns regarding the economic impact that terminating the DACA policy would have. DHS appreciates the comments regarding the number of healthcare workers who are DACA recipients and the role that DACA recipients play in job creation and spending in local economies. DHS agrees that without DACA, DACA recipients in the labor market would lose employment. Additionally, beyond the immediate impact of job loss to DACA workers and their employers, the impacts to the broader economy would depend on factors such as the nature of the jobs being performed, the level of substitutability with similarly skilled workers, and DACA recipients' ability and willingness to find undocumented employment. Similarly, as with any other population, DACA recipients participate in the local and broader U.S. economy in various employment or consumer roles and thus impact their communities and beyond.
DHS has described the assumptions used in the labor market section of the
Commenters identified other economic contributions of DACA recipients beyond tax payments. Some commenters cited statistics that DACA recipients hold $25.3 billion in spending power.
Numerous commenters stated that many DACA recipients have been employed in essential industries such as education, the military, and healthcare during the COVID-19 pandemic. A commenter wrote that DACA recipients form a critical, stable, and reliable workforce that enables retailers to continue to provide goods and services throughout the pandemic. Some commenters stated that DACA recipients are critical members of unions and workforces across many sectors of the economy. Several commenters cited studies stating that DACA recipients boost wages and increase employment opportunities for all U.S. workers.
Commenters, in DHS's view, correctly note that the DACA policy and DACA recipients improve economic conditions broadly in the United States by driving innovation, starting businesses, and employing themselves and others,
DHS appreciates commenters' concern for the well-being of agricultural workers. DHS agrees that the ability to lawfully work empowers employees in all sectors to leave dangerous employment situations by decreasing fear that reporting exploitative or illegal employment practices could potentially result in immigration consequences. Additionally, as mentioned above, a lack of access to employment authorization raises the potential for exploitation and substandard wages, which in turn may have the effect of depressing wages for some U.S. workers. Thus, making employment authorization available to DACA recipients helps protect U.S. workers and employers against the possible effects of unauthorized labor.
Other commenters stated that DACA was a crucial part of facilitating professional licensing eligibility, opening the door to licensure for many professions, including as a lawyer, teacher, doctor, nurse, social worker, or psychologist. These commenters further stated that communities have benefited from the education, professional expertise, and professional and economic contributions of DACA recipients in those professions. One of these commenters further stated that the increasing number of DACA recipients admitted to the Bar Associations of their respective States has promoted diversity in the legal profession while also helping to ensure all communities understand the judicial process and have greater access to justice. A joint comment by 14 States also identified examples of reliance interests engendered by community and State-level investments in the DACA population; for example, losing the benefits of investment into the training of DACA recipients working in healthcare who have committed to four years of post-graduation work in underserved Illinois communities.
Other commenters opposed the rule, stating that undocumented noncitizens exacerbate affordable housing shortages and that U.S. citizens should instead be prioritized.
DHS acknowledges the commenter's support for DHS's description of the substantial reliance interests of DACA recipients and communities. DHS appreciates the additional reliance interests identified by the commenter and agrees that some States have structured or amended their professional licensing requirements in reliance on the existence of the DACA policy, and therefore have reliance interests in the preservation of the DACA policy, as do the DACA recipients who have established careers dependent upon licensure by the State and the entities that employ professionally licensed DACA recipients.
DHS also acknowledges a commenter's concern that undocumented noncitizens, including DACA recipients, exacerbate the affordable housing shortage confronting some communities. Although some studies have examined the impact of immigration on housing,
Other commenters stated that DACA recipients should not be given special privileges, benefits, or money at the expense of American taxpayers. A commenter wrote, without accompanying citations or other support, that DACA recipients “use much more than their fair share of social safety net programs especially in places
The Attorney General of Texas submitted the only comment from a State expressing general opposition to the proposed rule. The comment stated that DACA increases the State's expenditures associated with education, healthcare, and law enforcement by incentivizing unauthorized noncitizens to remain in the country. The comment stated that Texas spends over $250 million each year in the provision of social services to DACA recipients. The comment also stated that unauthorized migration costs Texas taxpayers over $850 million each year: between $579 million and $717 million each year for public hospital districts to provide uncompensated care for undocumented noncitizens; $152 million in annual costs for incarceration of undocumented noncitizens in the penal system; between $62 million and $90 million to include undocumented noncitizens in the State Emergency Medicaid program; more than $1 million for The Family Violence Program to provide services to undocumented noncitizens for one year; between $30 million and $38 million per year on perinatal coverage for undocumented noncitizens through the Children's Health Insurance Program; and between $31 million and $63 million to educate unaccompanied noncitizen children each year.
In contrast, a joint comment submitted by the Attorneys General of 14 States
These States also asserted that opponents of the DACA policy have failed to demonstrate a single law enforcement cost attributable to the policy, and cited an article in which numerous police chiefs, prosecutors, and other law enforcement professionals advocated for the continuation of DACA.
The joint comment from these 14 States also disputed the notion that DACA imposes significant healthcare costs on the States, and stated that, to the extent there are costs, they do not outweigh the strong benefits and healthcare cost savings of DACA. They stated that DACA saves States money by allowing DACA recipients to receive employer-sponsored health insurance or to purchase insurance directly from carriers. Without DACA, they stated, those individuals would have to rely more on emergency services, as opposed to preventative services, in order to meet their healthcare needs, thereby increasing the costs to both the States themselves and their healthcare systems. The 14 States also stated that DACA reduces healthcare costs because its positive population-level mental health consequences reduce, rather than increase, State healthcare costs.
The joint comment from the States also characterized as a “false premise” the assumptions of opponents of the DACA policy that DACA recipients would depart the United States if the policy ended. They reasoned that, given the unlikelihood of large-scale departure of DACA recipients in the event DACA were terminated, the need to reduce healthcare expenses by making recipients eligible for insurance and by improving health outcomes becomes paramount. The States went on to explain that a number of States have structured healthcare access programs in reliance on the existence of DACA, and would incur costs to amend the programs were DACA limited or terminated. The commenters wrote that for example, New York currently uses
These 14 States also stated that DACA does not increase the States' educational costs, and that opponents of the DACA policy have not identified specific costs attributable to DACA, citing numerous other States' declarations in the record in
Another joint comment stated that States lack any reliance interest in the nonexistence of a DACA policy because States are not harmed by how the Federal Government prioritizes and enforces its immigration laws. The rule as proposed, the commenters stated, does not harm any reliance interests on the part of States. The commenters stated that the reliance interests thus weigh strongly in favor of DACA recipients and of other individuals who benefit from a DACA policy and from other policies that spring from the same statutory authority.
DHS disagrees with a comment that it ignored possible fiscal impacts at the local, State, and federal levels. The RIA specifically addresses potential fiscal impacts, both positive and negative, at various levels of government. As the commenter notes, a comprehensive quantified accounting of local and State fiscal impacts specifically due to DACA is not possible due to the lack of individual-level data on DACA recipients who might use State and local programs or contribute in a variety of ways to State and local budgets. In general, however, DACA is not a qualifying immigration category for Medicaid eligibility and does not affect access to public schools. DHS is aware that some State and local jurisdictions have chosen to expand assistance to deferred action recipients in certain contexts.
Furthermore, the claim of a causal link between Texas fiscal spending and the DACA policy relies to a significant extent on the assumption that in the absence of DACA, a substantial portion of DACA recipients who would otherwise impose a net fiscal burden on the States would depart the United States. DHS welcomed comments on all aspects of the NPRM, but received scant evidence in support of this assumption.
DHS also acknowledges the comment of 14 other States—including multiple states in which large numbers of DACA recipients currently reside—that DACA does not increase States' law enforcement, healthcare, or education costs, and, if anything, reduces such costs. With respect to law enforcement in particular, DHS agrees that DACA mitigates a dilemma faced by those without lawful status; by virtue of the measure of assurance provided by the DACA policy, DACA recipients are more likely to proactively engage with law enforcement in ways that promote public safety. With respect to health care and education, DHS appreciates that some of these States, as well as some localities, have enacted laws
In connection with this discussion of fiscal burdens, DHS reiterates its understanding that DACA recipients make substantial contributions in taxes and economic activity.
With respect to comments suggesting that DHS should consider a DACA requestor's self-sufficiency, DHS does not believe it is necessary to supplement the rule in this way, both because there is little evidence that DACA results in a net fiscal burden on governments, and because the DACA criteria (such as the criteria related to educational attainment, age, and criminality) relate to the contributions DACA recipients have made and will make in the future. Additionally, the DACA policy allows its recipients to work lawfully in the United States and has allowed them to significantly increase their earning power over what they could earn without DACA.
As discussed in Section II.A.3, the DACA policy has encouraged its recipients to make significant investments in their education and careers. They have continued their studies, and some have become doctors, lawyers, nurses, teachers, or engineers.
DHS also acknowledges the joint commenters' statement that States have no reliance interests in the nonexistence of a DACA policy. To the extent that any State may have reliance interests in the nonexistence of DACA, DHS believes that those interests are significantly diminished by the fact that the DACA policy has been in place for a decade. After careful consideration, DHS agrees with these commenters that the reliance interests weigh strongly in favor of recipients and others who benefit from the DACA policy, including the States themselves, in reliance on DACA as codified in this rule. After carefully considering these comments, DHS therefore declines to make any changes in response to them.
A group of commenters similarly said that the proposed rule would protect the substantial reliance interests of their very large companies in current and future employment relationships with DACA recipients. These commenters noted that more than 75 percent of the top 25 Fortune 500 companies—together representing every major sector of the U.S. economy and generating almost $3 trillion in annual revenue—employ Dreamers.
A joint comment submitted by an educational institution and corporation stated that they have considerable reliance interests in a DACA policy because they have enrolled and employed DACA recipients who have made significant contributions to their institutions. The commenters further stated that DACA recipients contribute to the educational institutions they attend, and that communities and employers depend upon them and have invested significant time and money in training them, such that hiring and training replacements would cost employers $6.3 billion.
With respect to assertions that DACA recipients receive special scholarships, DHS recognizes that some educational institutions and States have established scholarships or other financial aid to support undocumented students, including DACA recipients. DHS cannot determine the degree to which, in the absence of a DACA policy, these underlying resources would instead be directed toward U.S. citizens or other students with lawful status. As for assertions that DACA recipients displace U.S. citizens in schools or colleges or otherwise impact educational resources, DHS generally agrees that educational resources in primary and secondary education are also shared by those enrolled DACA recipients as enrollment at these educational levels generally is not dependent on immigration status. Enrollment in primary or secondary education by undocumented noncitizens is not predicated on this rule. Undocumented noncitizens without DACA can enroll in these institutions regardless of this rule. The commenter's assertions also assume that DACA recipients and/or their family members do not contribute economically and fiscally to their local schools and communities, that educational resources are fixed, and that local laws and regulations, economic conditions, and demographics remain constant. Many factors can impact local educational resources, including the level of local immigration, and a static analysis cannot appropriately assess a dynamic issue such as this. Assuming that DACA recipients only draw down government resources without also analyzing their beneficial contributions distorts realistic fiscal impacts, which are discussed in more detail in Section III.A.4.e in the RIA. DHS further notes that educational institutions (some of which accept undocumented students without deferred action as well) expressed widespread support for the proposed rule, as discussed below, which stands in contrast to some commenters' views that the DACA policy imposes a substantial strain on educational resources.
Commenters also noted that the DACA policy enables them to hire DACA recipient students as teaching assistants, tutors, and researchers, among other on-campus work-study positions, benefiting the DACA recipients themselves, other students, and the universities more broadly. Commenters also stated that the availability of advance parole has enabled DACA recipients to pursue study abroad, fellowships, research, and other academic programs or related
A comment jointly submitted by 14 States also identified the reliance interests of public universities and colleges in their States, which rely upon significant tuition revenue from DACA recipient students, and have made significant investments in financial aid and other programs to support DACA recipient students. These commenters further stated that such investments are “consistent with their interests in ensuring diversity and nondiscrimination and in developing a well-educated workforce that can contribute to the States' overall economies.”
Another commenter highlighted studies estimating that there are approximately 9,000 DACA recipients working as teachers in the United States. The commenter stated that teacher shortages have become more strained during the COVID-19 pandemic, and the removal forbearance and work authorization provisions of DACA are critical to ensure the quality education of children in the United States. Similarly, a university commented that expanding pathways to DACA would have an immediate positive impact on the number of teachers its teacher preparation program could produce, addressing needs in their State to increase the number of teachers who reflect the State's diverse demographics.
One commenter pointed to CBP statistics showing that the number of unaccompanied noncitizen children (UC) apprehended at the border had increased from 15,949 in FY 2011 to 68,541 in FY 2014, which the commenter asserted occurred when the U.S. Government, in their view, began signaling an unwillingness to enforce immigration law against this population. The commenter similarly stated that DACA encourages unauthorized immigration and trafficking of children across the U.S.-Mexico border, and that maintaining DACA and dismantling enforcement against undocumented noncitizens resulted in record apprehensions by CBP at the Southwest border, citing CBP statistics that Border Patrol apprehended 1,659,206 noncitizens who crossed the Southwest border without authorization in FY 2021. The commenter suggested that the humanitarian crisis on the border continues threaten national security, public health, wage levels, and employment security, and poses unsustainable strains to DHS, DOJ, and HHS resources. This commenter and others said that continuing the DACA policy sends the message that unauthorized entry into the United States will be rewarded, and periods of unlawful presence will be mooted by executive action. From their perspective, promulgating a DACA regulation would only perpetuate a widespread belief that immigration laws will not be enforced, therefore incentivizing unlawful entry and unlawful presence by raising the hopes of undocumented noncitizens of attaining DACA or an equivalent status in the future. This, commenters asserted, will exacerbate the situation at the border. One of the commenters similarly stated that continuing DACA would give other undocumented noncitizens reason to risk their lives and the lives of their children by making the journey to the United States.
Other commenters urged that no action should permit undocumented immigrants to participate in, share, or otherwise obtain status and benefits without first becoming a U.S. citizen, and that no “lawful status” should be granted to those entering the country unlawfully. Some commenters also raised concerns about open borders, stating that DACA is not in the interest of the United States, and that the United States must protect its sovereignty and rule of law. Other commenters expressed concern about the migration of DACA recipients' relatives to the United States and said that such migration should be restricted.
Another commenter stated that DHS should supply additional evidence for its claim that DACA has no substantial effect on lawful or unlawful immigration to address the concerns of the Southern District of Texas, including: (1) the effects of DACA on legal and illegal immigration; (2) the secondary costs of DACA associated with any alleged increase in illegal immigration; and (3) the effect of illegal immigration on human trafficking activities. The commenter cited a 2021 Pew Research Center study showing that the number of unauthorized noncitizens in the United States steadily declined from 2007 to 2017.
Even as it relates to the DACA policy under the Napolitano Memorandum, DHS respectfully disagrees with commenters' characterization of the policy's effects. In the proposed rule, DHS wrote that it does not “perceive DACA as having a substantial effect on volumes of lawful and unlawful immigration into the United States,” and DHS is not aware of any evidence that, and does not believe that, DACA “has acted as a significant material `pull factor' (in light of the wide range of factors that contribute to both lawful and unlawful immigration into the United States).”
DHS acknowledges commenters' statements that the 2012-2014 increase in the number of unaccompanied children apprehended at the border began in the months preceding DACA's announcement in June 2012 (and peaked in that fiscal year in March),
As DHS noted in the NPRM, Amuedo‐Dorantes and Puttitanun (2016) investigated whether the DACA policy had an effect on the rate of irregular migration by noncitizen minors using data from 2007-2013. Their approaches employed multiple models to examine whether the DACA policy had any effect on border apprehensions of unaccompanied minors. These models accounted for additional factors beyond the DACA policy, such as enactment of TVPRA 2008, economic and social conditions in the United States and originating countries, and border conditions. The authors found no evidence of causality between the DACA policy and the number of border apprehensions of unaccompanied minors, and they identified stronger associations between other factors (namely, the economic and social conditions in the originating country and the enactment of TVPRA 2008) and apprehensions of unaccompanied minors at the U.S.-Mexico border. This finding suggests that even in the immediate aftermath of the initial DACA policy, migration decisions were the product of a range of factors, but not primarily a consequence of the DACA policy.
Additionally, the overall FY 2021 apprehensions by CBP at the southern border cited by a commenter represent total encounters, not the number of unique individuals apprehended. Although the total number of unique encounters did increase to record levels, DHS notes that a portion of the increased encounters cited by the commenter is attributable to noncitizens making multiple attempts to enter the United States during the period in which the Centers for Disease Control and Prevention (CDC) has exercised its Title 42 authority to prohibit the introduction of certain noncitizens into the United States. In FY 2019, prior to implementation of the CDC's Orders under 42 U.S.C. 265, 268 and 42 CFR 71.40, the rate of noncitizens encountered by CBP who attempted to enter the United States more than once in the same fiscal year was 7 percent. In FY2020, the recidivism rate rose significantly to 26 percent, and in FY 2021 further increased to 27 percent.
As discussed above, there are many reasons why noncitizens decide to emigrate from their countries, with some reports claiming economic and social issues as primary reasons.
Beyond the complex factors underpinning migration patterns, the
Nevertheless, DHS acknowledges that, as with any discourse on immigration policy or legislation, some individual noncitizens might misinterpret the policy's intent and applicability and hope that they might benefit from the policy. DHS, however, is unaware of a substantial body of evidence to support such a theory, and in any event does not think it necessary or appropriate to terminate the DACA policy to address such concerns, in light of DHS's interests in setting appropriate enforcement priorities, as well as the significant reliance interests at play.
With respect to the suggestion that the DACA policy promotes “chain migration,” DHS understands the commenter to be referring to family-sponsored immigration, one of the foundational principles of U.S. immigration law,
Other commenters stated that it would be extremely costly, in the billions of dollars, for the U.S. Government to remove the hundreds of thousands of young people who qualify for DACA.
Indeed, the cost of apprehension is only one part of the process to remove a noncitizen; the removal process includes other significant costs to the Federal Government, including the costs of removal proceedings before EOIR, detention, potential for related federal litigation, and transportation. The DACA policy allows DHS, in line with its particular expertise, to proactively identify noncitizens who may be a low priority for removal should ICE or CBP encounter them in the field and once a valid DACA recipient is confirmed, ICE or CBP may be able to make a determination without necessitating further investigation.
Furthermore, under longstanding policy and procedure, in cases where ICE grants deferred action, the noncitizen is eligible to subsequently file Form I-765 to apply for work authorization. This process requires ICE to issue a document to the noncitizen, who then must include it in their work authorization application. USCIS routinely must verify the information provided in these letters, which requires time and uses USCIS and ICE personnel resources. It promotes administrative efficiency and preserves resources and time for both agencies to streamline the DACA-related processes within one DHS agency. Furthermore, while USCIS recovers the costs of conducting background checks via the DACA-related filing fees, ICE and CBP, which are funded primarily through congressionally appropriated taxpayer dollars, would not recover these costs from requestor fees unless they established additional fees for that purpose.
The final rule does not introduce new criteria for consideration, expand the population eligible for consideration, change standards of review, provide lawful immigration status, or alter the forbearance from removal or employment authorization structure that has been in place for a decade. As discussed elsewhere in this rule and in the NPRM, the DACA policy reflects the reality that DHS must exercise discretion in immigration enforcement, and that its limited resources are best focused on noncitizens who pose a security threat, public safety, or border security threat to the United States or are otherwise a high priority for enforcement. Codification of the DACA policy in this rule does not divert needed funds from CBP or ICE, and instead supports their enforcement work by clearly identifying a subset of the noncitizen population already determined not to be a priority for enforcement.
Some commenters characterized DACA recipients as “invaders” or “parasites” or used other pejorative terms, and stated that some DACA recipients try to manipulate U.S. citizens into marriage for immigration purposes. Other commenters stated that DACA is a threat to the United States and its security, and that it creates avenues for drug cartels to operate in the United States, enabling human trafficking and drug trafficking.
In contrast, multiple commenters stated that undocumented immigrants are less likely to be convicted of crimes (
As discussed in further detail in Section II.C.4.b.6, determining whether someone poses a threat to national security or public safety is at the heart of DHS's mission, and Congress has directed the Secretary to prioritize national security, public safety, and border security. Consistent with this mission, the rule at new 8 CFR 236.22(a)(6) disqualifies from consideration for DACA individuals who have been convicted of any felony; three or more misdemeanors not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct; or who otherwise pose a threat to national security or public safety. In addition, the rule disqualifies from consideration for DACA any individual who is convicted of any misdemeanor, as defined by Federal law, that meets the following criteria: (i) regardless of the sentence imposed, is an offense of domestic violence; sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or (ii) if not one of these offenses, is one for which the individual was sentenced to time in custody of more than 90 days. And even if an individual requestor's background check shows a criminal history that does not meet the above critieria, DHS may still decide not to grant the DACA request as a matter of discretion. These criminal criteria are also grounds for terminating DACA, as discussed in Section II.C.5.f below, and because DHS conducts recurrent vetting on DACA recipients, the Department can take action to terminate DACA as it becomes aware of any evidence of such criminal criteria in a particular case.
DHS also does not believe that it is accurate or helpful to characterize DACA recipients or potential DACA requestors—who entered the United States as children and have resided in this country for over a decade—as “invaders” or to use other pejorative or inflammatory terms to refer to DACA recipients, noncitizens, or any other group of people who are, on the whole, peaceful and hardworking. With respect to all comments submitted, DHS has focused on the merits of commenters' inputs, rather than such characterizations.
With respect to the comment regarding DACA recipients and marriage, DHS notes that under 8 U.S.C. 1325(c), any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both. Activity falling under 8 U.S.C. 1325(c) is a felony falling within the criminal
DHS does not believe that DACA creates avenues for drug cartels to operate in the United States or enables human trafficking and drug trafficking. Conviction for such offenses would result in termination of DACA or denial of DACA renewal, and as discussed above, DACA recipients receive work authorization that enables them to participate in the legitimate economy, an option that would not be available to them absent DACA. Human trafficking and drug trafficking are serious crimes and top priorities for DHS.
With regard to concerns about public safety more broadly, as one commenter noted, the DACA policy may increase recipients' willingness to report crimes by deferring the possibility of immediate removal and thereby ameliorating the risk that approaching law enforcement would expose the recipient to an immigration enforcement action. DHS also agrees with the commenter that this rule will enable the Department to focus its enforcement resources on those that pose national security or public safety concerns. After careful consideration, DHS thus respectfully disagrees with commenters concerned that the DACA policy promotes criminal activity or otherwise undermines national security or public safety.
Another commenter stated that it is wrong to allow people to come to the United States unlawfully and stay in the country long enough until the Government decides they can become citizens. The commenter stated that letting people enter and remain in the United States unlawfully “does not instill a sense of patriotism for the recipient.” Another commenter stated that the DACA policy lacked some of the benefits of naturalization, because naturalization applicants learn about the United States. The commenter stated that skipping this step is an affront to naturalized citizens and that the United States should end DACA and encourage prospective residents to naturalize legally.
Another commenter said that DACA is a “made-up policy” that holds its recipients in a purgatory-like state waiting for the Government to ultimately address the issue of lawful status, while another commenter added that DACA recipients live in a state that experts call “liminal legality,” which has health implications for many undocumented individuals.
As to the commenters' concerns that the DACA policy does not engender a sense of patriotism for recipients or that because there is no pathway to naturalization, DACA recipients do not benefit from learning about the United States as naturalization applicants do, DHS notes that many commenters wrote of DACA recipients' “dreams and aspirations to help America,” sharing that they are “grateful for this country” and want to work hard to take advantage of the opportunities they have in the United States. And while the DACA policy has no U.S. history knowledge requirement, DHS notes that virtually all recipients have been enrolled in or completed some form of secondary education in the United States consistent with the education criteria for DACA. Several DACA recipients stated in their comments that through their studies, they knew more about American history than the history of their countries of origin. As to the commenter's suggestion that DHS terminate the DACA policy and encourage prospective residents to naturalize legally, DHS notes that those eligible for DACA generally do not have a pathway to lawful permanent status or naturalization, and as discussed in Section II.A.11 below, establishing such pathways requires Congressional action. However, DHS also notes, that nothing precludes a DACA recipient from
DHS also acknowledges commenters' concerns that the legal uncertainty of the DACA policy causes stress and negative health outcomes for some DACA requestors. DHS reiterates that ameliorating legal uncertainty for the DACA population, and preserving and fortifying DACA as directed by the Biden Memorandum, are among the purposes for promulgating this rule. DHS therefore declines to make any changes in response to these comments.
Some commenters acknowledged and appreciated the proposed rule's discussion of the term of art “lawfully present,” and their joint submission proposed, without substantial additional explanation, that DHS interpret its “lawful presence” authority to allow a path to citizenship, through naturalization, to DACA recipients. Others suggested that DHS provide Temporary Protected Status (TPS), or some other form of legal status, to DACA recipients.
A commenter expressed concern that they may not be eligible for future promotions due to restrictions on work authorization associated with DACA, such as the program's prohibition on employment sponsorship. Another commenter likewise remarked that many DACA recipients do not have a path to employment-based permanent residence and, therefore, are barred from adjusting status through filing FormI-601 waiver applications. The commenter stated that continuing to extend DACA in its current form or effectively making it a fixture of U.S. immigration law with only minor changes would be a “cruel joke” for the numerous individuals who are ineligible for both DACA and family-based immigration. The commenter urged the inclusion of provisions to address the gap in the treatment of DACA recipients to permit them to pursue employment-based immigration options. The commenter stated the provisions should include, at a minimum, the opportunity for DACA recipients to file FormI-601 waiver or Form or I-601A provisional waiver applications so that they can proceed with consular processing for approved Form I-140 petitions. Commenters stated that such solutions are preferable in light of the uncertainty, fear, and anxiety surrounding the DACA request process, legal challenges to the policy, and the complexity of the U.S. immigration system.
Some commenters said that providing a pathway to permanent residence or citizenship would provide much-needed stability and lift the psychological and financial burden of biennial renewals. Some of these commenters cited personal examples highlighting the negative effects of uncertainty on existing or hopeful DACA recipients and their families, including financial and psychological hardship. Expressing concern that DACA recipients' livelihood could be destroyed if they lost protections, a commenter remarked that citizenship would allow DACA recipients to continue to reside in the United States without assuming any further fees or expenses, reasoning that staying should cost recipients nothing after they have established their residence and livelihood here.
Some commenters said that DACA recipients experience unique disadvantages compared to other immigrants and those with a pathway to citizenship in terms of finding adequate employment or obtaining Federal employment, receiving Federal financial aid or grants, obtaining a driver's license, joining the military, traveling overseas, qualifying for State and Federal benefits and programs such as Premium Tax Credits and Medicaid, or obtaining legal status through alternative pathways such as employee sponsorship. Referencing various examples above, several commenters suggested that DACA recipients are “citizens” or “Americans” in various contexts, only lacking this status by law. Other commenters similarly said that children who grew up in the United States inherently belong and deserve the same rights as citizens who consider this country their home.
Some commenters stated that a pathway to citizenship or permanent residency would reinforce the humanitarian and legal principles underlying DACA, the proposed rule, U.S. law, or U.S. values. One commenter said that creating a pathway to citizenship would be the right thing to do for human rights and society. The commenter further reasoned that citizenship would recognize that the United States has only benefitted from DACA recipients' contributions.
A couple of commenters stated that providing a path to citizenship would not only reduce uncertainty but would also ease the burden of the administrative and judicial review processes for DACA cases, as well as the costs of deportation. A couple of commenters also stated that, as individuals who are compelled to maintain a “spotless record” to keep their status, DACA recipients have earned their citizenship.
In the absence of a pathway to citizenship, some commenters suggested that, at a minimum, the rule could provide assurance to DACA recipients that they are safe and will not be deported without just cause. Similarly, several commenters stated the need for clear messaging and guidelines around DACA protections.
Although DHS does not have legal authority to amend the rule to provide a direct procedure for a DACA recipient to attain citizenship, as recommended by some commenters, DHS notes that nothing precludes DACA recipients from becoming LPRs or applying for naturalization through the existing provisions of the INA if they meet the preexisting eligibility requirements.
DHS also acknowledges the commenter's concerns about the professional implications that lack of a permanent legal immigration status may have on DACA recipients. DHS recognizes that some DACA recipients may not meet the eligibility requirements for certain employment-based nonimmigrant and immigrant visa categories. DHS notes, however, that there is nothing in the DACA policy or this rule that limits or prohibits a recipient from attaining such employment-based status if a petitioning employer and the individual are able to meet the requirements of the particular category. Certain restrictions that exist on employment-based nonimmigrant and immigrant classifications, moreover, as well as the waivable grounds of inadmissibility, are statutory, and DHS lacks authority to change them through this rulemaking. Solutions to statutory requirements must originate with Congress in the form of legislation. And because DHS did not propose modifications to regulatory requirements for immigrant and nonimmigrant work-based avenues to lawful immigration status, modifying those requirements in this final rule is outside the scope of this rule.
DHS appreciates the commenter's concern over protecting DACA recipients regardless of whether Congress passes an adjacent legislative solution. DHS agrees with commenters, that regardless of whether Congress acts to extend a pathway to lawful permanent residence or citizenship for the DACA-eligible population, there is ample justification to consider DACA recipients to generally be of a low enforcement priority.
Another commenter expressed strong opposition to the proposed rule, arguing that many of the proposed provisions conflict with DHS's stated intent of preserving and strengthening DACA. According to the commenter, the proposed rule would not do enough to preserve access to DACA for its intended beneficiaries, expand access to individuals that fall outside the Napolitano Memorandum's criteria, protect victims of domestic and sexual violence, ensure fair and consistent application of DACA, or protect DACA recipients and requestors from deportation.
One commenter stated that the 2012 eligibility requirements reiterated in the NPRM are overly narrow and now outdated. Furthermore, the commenter stated, unlike many other issues it canvasses, the proposed rule fails to suggest expanded alternatives to the core feature of DACA: its coverage. As a result, according to the commenter, this rule fails to provide ambitious protection for immigrant youth.
Many commenters said that, while the proposed rule, or DACA generally, would not provide a permanent solution for recipients, the policies represent a necessary step in the absence of congressional action or a better alternative. One commenter stated that DACA serves both national and international interests amid flawed legal standards, including for asylum, and policy gridlock. They stated that DACA, while imperfect, should be preserved and expanded. Some commenters expressed concern with legal or political uncertainty around DACA and the potential loss of protections for recipients. One commenter said that DACA is premised on Executive discretionary power and, therefore, is ill-equipped to endure changes in administrations. Other commenters provided examples highlighting the need to do more to address uncertainty and legal limbo among DACA recipients.
Describing the existing difficulties children and families face in the U.S. immigration system, as well as the need for DACA protections, commenters urged DHS to expand or improve efforts to protect, welcome, and support DACA recipients or DACA-eligible individuals. Some commenters alluded to a general need for a permanent solution or relief, through DACA or otherwise, while others added that, beyond protecting DACA, there also is a need for broad immigration reform.
DHS recognizes the rule's limited scope, but this scope is consistent with the President's directive to focus efforts toward preserving and fortifying DACA. A central goal of this rule is to respect reliance interests. As discussed further in Section II.C, DHS does not believe that it would be appropriate to expand the policy in the final rule.
DHS also acknowledges some commenters' desire to see ambitious protections for immigrant youth written into law. DHS agrees that the DACA policy as codified in this rule does not address the circumstances of all immigrant youth, is not a permanent solution for affected persons, and does not provide lawful immigration status or a path to citizenship.
Citing personal experiences, another commenter expressed concern that DACA recipients are unable to obtain a Commercial Driver License (CDL) and requested that recipients be allowed to have a CDL. Considering the national driver shortage and opportunities for business owners, the commenter reasoned that this change would allow DACA recipients to serve their communities.
Other commenters recommended that the agency implement more safeguards for children coming to the United States, including through background checks on DACA recipients' guardians or household members.
Regarding a commenter's concern that DACA was intended to be a temporary policy, DHS notes that the Napolitano Memorandum did not impose temporal limits to the policy or otherwise indicate a temporary intent. To the extent that the policy was described as a temporary measure by President Barack Obama when he announced it in 2012, DHS notes that President Obama also stated that, “[i]n the absence of any immigration action from Congress to fix our broken immigration system, what we've tried to do is focus our immigration enforcement resources in the right places,” and that DACA is a measure “that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people.”
As the DACA-eligible population remains a low priority for enforcement; in recognition of the investments that DACA recipients have made in their families, work, schools, and communities, and vice versa; and in light of the litigation history associated with the DACA policy, DHS has determined it is appropriate to codify the DACA policy in regulation. DHS agrees, however, that in general, such codification should not be necessary for policies guiding the case-by-case exercise of enforcement discretion. In response to a commenter's concern that promulgation of this rule restricts the flexibility of the Department to terminate the DACA policy, for example, if there are sufficient enforcement resources so as to not need to exercise prosecutorial discretion, DHS declines to make changes to the rule. In the event that DHS receives such a sustained infusion of resources,
Similarly, one commenter wrote that Congress has not enacted legislation to authorize DHS to propose rules to implement the DACA policy. The commenter referenced the various authorities that DHS cited in proposing the rule, concluding that none of them permits DHS to propose this rule. Specifically, the commenter cited sources that in their view establish: (1) prosecutorial discretion does not permit DHS to implement sweeping policy changes; (2) “longstanding” DHS policies do not create authority for the proposed rule; and (3) court decisions are inapplicable or explicitly foreclose DHS's interpretation of its authority.
The commenter went on to state that the courts, not DHS, determine whether DHS has authority to implement DACA. The commenter wrote that the courts have, in that respect, “expressly concluded” that DHS does not have that authority. The commenter further stated that, because the rule implements the same program that the courts reviewed, the reasoning in those court decisions applies with equal force to the proposed rule. The commenter characterized this rulemaking as demonstrating DHS's opinion that certain court decisions concerning DHS's authority do not apply to it. The commenter said DHS's policies, even if longstanding, do not hold greater weight than legal determinations by the judiciary, nor do they overcome the force of law as determined by the courts.
The commenter also stated that, throughout the NPRM, DHS cites a series of agency policies that Congress later codified, presumably to show authority for this rulemaking. The problem with these references, in the commenter's view, is the referenced policies are “distinguishable and unrelated” to the current proposed rule. The commenter wrote that in earlier instances of deferred action, DHS implemented a policy that was: (1) not held by a court of law to be outside the scope of DHS's authority; and (2) not relied on as authority for a proposed rule. The commenter said that a history of DHS policies, even where Congress ratified those policies, is not evidence of authority for an agency to implement the DACA rules or any rule because historical practice is not a duly enacted statute by Congress.
The commenter also stated that DHS is not consistent in its reliance on Congress' post-implementation treatment of DHS policy as authority for these rules. For example, the commenter wrote that DHS takes the position that Congress' inaction concerning the DREAM Act should not lead to an inference concerning the Secretary's authority, while simultaneously relying on Congress' inaction to support its position that the Secretary has authority to confer “lawful presence” as part of DACA. The commenter stated that DHS's “completely subjective” analysis illustrates why statutes, not Congress' action or inaction after a policy is implemented, must authorize any agency rulemaking endeavor.
Another commenter likewise wrote that maintaining DACA through rulemaking is both unlawful and bad immigration policy. The commenter stated that Congress has not authorized DACA, and DACA therefore is outside DHS's rulemaking authority. Citing the district court's 2021 decision in
The commenter wrote that DACA is more than an exercise of prosecutorial discretion and instead goes further to ignore statutorily mandated removal proceedings and unlawfully provide immigration benefits to an ineligible population. The commenter also stated that Congress has spoken on DACA's legality by consistently and expressly rejecting legislation that would substantively enact the program or otherwise legalize DACA's intended beneficiaries. The commenter wrote that Congress has not implicitly ratified DACA, either. Citing case law, the commenter stated ratification requires “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned.” The commenter wrote DACA “falls short” of satisfying this standard “because prior instances of Executive misconduct cannot be regarded as even a precedent, much less an authority for the present misconduct.” The commenter stated that it disagrees with DHS's position that prior non-enforcement policies justify the proposed rule. And the commenter further said implementation of DACA would violate the Take Care Clause of the U.S. Constitution because it “dispens[es]” with certain statutes.
Multiple commenters stated that the rule cannot be issued as an executive decision. These commenters said DACA is an example of executive disregard of the Constitution and current law, and no administration has the authority to decide which laws agencies get to ignore. Many commenters stated the rule is in direct violation of U.S. immigration law, which requires that people living in this country illegally be apprehended and returned to their country. Some commenters also said there is an established procedure for U.S. citizenship, and DACA recipients should follow this path to legal citizenship the same as any other immigrant.
One commenter stated that, while previous administrations have granted deferred action to limited groups of immigrants, DHS lacks authority to provide “unconditional and indefinite” relief and benefits to a large group (“more than half million”) of noncitizens without lawful immigration status. Another commenter similarly remarked that the main flaw in DHS pointing to prior deferred action programs as justification for this rule is that “none of them has the broad scope and indefinite timeframe of the [DACA] program.” The commenter stated that “a litmus test is whether the department created a program that is narrowly scoped, and has a time restriction, either
Multiple commenters stated that the rule comes on the heels of the
DHS likewise disagrees with commenters' assertions that this rulemaking fails to follow the law as established by Congress, conflicts with Congress' legislative scheme to regulate the employment of noncitizens, adjustment of status, removal, and reentry, or otherwise violates the Executive's duty to “take care that the Laws be faithfully executed” under Article II, Section 3 of the Constitution. To the contrary, DHS strongly believes this rule is consistent with the text of all relevant statutes and furthers Congress' goals in enacting the INA and HSA. DHS acknowledges that the Constitution vests Congress with the legislative power and, accordingly, the authority to make and revise the immigration laws. The Department's prioritization of the apprehension and removal of noncitizens who are a threat to national security, border security, and public safety is entirely consistent with the immigration laws, including provisions providing for mandatory detention and expedited removal of certain categories of individuals.
More than 11 million undocumented noncitizens currently live in the United States,
DHS shares commenters' recognition of and respect for the Constitution's separation of powers framework. But DHS disagrees with commenters' position that this rulemaking bypasses Congress' role in the legislative process or otherwise fails to adhere to DHS's proper place within the Government of the United States. DHS acknowledges that the INA generally provides for the removal of noncitizens who are in the United States without authorization. Never in the history of DHS or the former INS, however, has either agency or a court taken the position that the agency is obligated to seek the removal of every removable noncitizen in the United States at any given time. And both the long history of formal deferred action policies instituted both by DHS and the former INS (some of which Congress went on to ratify) and other forms of prosecutorial discretion that individual government officials lawfully exercise on a case-by-case basis every day belie any assertion to the contrary. DHS agrees that those prior policies are not “authority” for this rule. Rather, the authority for the rule lies in a range of statutory authorities, including DHS's general rulemaking authority under section 103 of the INA as well as DHS's power to exercise enforcement discretion, which is inherent in the delegation of authority over enforcement of the INA.
DHS disagrees with the commenter's assertion that a policy granting lawful presence and work authorization to the DACA-eligible population is a matter of such “deep economic and political significance” as to constitute a “major question,” as recently described by the Supreme Court in
Even if the major questions doctrine did apply, there is clear statutory authority and agency precedent for the rule. Unlike the authority at issue in
As detailed below, these policies date as far back as 1956 and DHS and its precursor agencies have “routinely” implemented prosecutorial discretion policies of a similar scale and type as the DACA policy,
DHS disagrees with commenters who stated that prior instances of deferred action or similar enforcement discretion policies referenced in the NPRM are materially different from deferred action under the DACA policy. In essence, commenters said that the validity of prior policies such as EVD, Family Fairness, and deferred enforced departure turned on those programs' “interstitial” nature. Those programs, in the commenters' view, simply provided a stopgap measure intended to serve only as a temporary solution while Congress legislated a permanent fix. That may have been the ultimate result for the affected populations, but it was by no means assured that Congress would act when legacy-INS implemented those policies. The INS relied not on an assurance of future Congressional ratification, but on its authority to exercise enforcement discretion when implementing those policies, with the possibility that Congress might one day act. DACA in this respect is no different from the earlier programs. Congress is actively considering legislation to provide substantive immigration benefits to a DACA-like population. Thus, to the extent commenters characterized prior instances of deferred action as “interstitial” simply because they occupied the space between an agency seeking to implement a certain policy and Congress providing an adjacent legislative solution, DACA occupies an identical space. And also like DACA, the administrative enforcement discretion policies practiced by the INS did not provide beneficiaries with lawful immigration status, protection from removal, or a pathway to citizenship until Congress made a change in law.
DHS further disagrees with commenters who stated that Congress' consistent failure to enact DACA-like legislation is evidence that this rule exceeds DHS's authority. For one thing, many of the bills the commenters point to differ greatly from DACA in substance. Both the DREAM Act and the American Dream and Promise Act differ dramatically from DACA in the protections and substantive benefits that they would offer to their respective target populations, the most notable being lawful immigration status and a pathway to citizenship. DACA, by contrast, as preserved and fortified by this rule, does not and could not provide a blanket grant of lawful immigration status, conditional or permanent residence, or a pathway to citizenship because DHS lacks authority to do so without a change in law. For another, inaction is not legislation, and Congress does not legislate by failing to legislate. Congress' past inaction on any given topic is not a law. Congressional inaction may occur for any number of reasons, and it does not enact the status quo, or come with an account of Congress' reasons for declining to take action. In DHS's view, inaction as such has no bearing on the legality of an adjacent rulemaking. For example, the former INS instituted Family Fairness in the wake of Congress' express rejection of legislation that would have provided immigration benefits to spouses and children ineligible for such relief under the Immigration Reform and Control Act of 1986 (IRCA). Legislation stalls in Congress for myriad reasons, not the least of which include competing priorities of national and international importance and the sheer volume of business to which Congress must attend.
One more point bears mentioning with respect to congressional inaction in this space. While commenters drew much attention to Congress perennially declining to enact DACA-like legislation, commenters largely ignored Congress' comparable failure to legislatively override the DACA policy even though it has now existed for years. There is no basis to conclude that Congress has rejected a longstanding deferred action policy for the DACA population from its failure to enact more comprehensive legislation governing a similar population.
With respect to a commenter's statement that, setting aside the Secretary's authority to exercise prosecutorial discretion in favor of this rulemaking's target population, DHS cannot implement sweeping policy changes under the guise of prosecutorial discretion: DACA is no such sweeping change. As the NPRM makes clear, there is nothing new about a policy deferring enforcement action for nonviolent individuals who are low priorities for enforcement, nor is there anything new about the ancillary policies, regulations, and statutes associated with such forbearance, including according employment authorization to such individuals upon a showing of economic necessity, or deeming such individuals to be lawfully present for certain purposes or not unlawfully present for the duration of the deferred action. Indeed, as it relates to the core of the policy (
The same commenter wrote that the “longstanding” nature of the above policies nevertheless does not excuse the absence of express statutory authority to engage in this rulemaking. DHS first disagrees with the commenter's premise that DHS lacks express statutory authority to issue this rule. To the contrary, as explained earlier, both the INA and the HSA vest the Secretary with authority to issue this rule by virtue of statutory directives that he administer and enforce the immigration laws of the United States, set “national immigration enforcement policies and priorities,” and “establish such regulations; prescribe such forms of bond, reports, entries, and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority” under the INA.
DHS disagrees with multiple commenters' characterization of DHS's view of the July 2021 ruling of the United States District Court for the Southern District of Texas in the
In any event, this rulemaking should not be construed as indicating that DHS doubts DACA's procedural or substantive legality. DHS elected to undertake this rulemaking for a variety of reasons, including to affirm administrative practices that help the Department to allocate its enforcement resources efficiently; accommodate the substantial reliance interests that have developed in connection with the DACA policy; implement the President's directive to preserve and fortify DACA; and facilitate compelling humanitarian objectives.
Last, DHS disagrees with the commenter's statement that USCIS lacks authority to administer DACA because it is not an enforcement agency. The authority to administer the immigration laws and set immigration enforcement priorities ultimately rests with the Secretary.
A commenter stated that the DACA policy is a lawful exercise of the Secretary's authority, even without notice-and-comment rulemaking. A different commenter stated that DACA has a strong legal foundation and agreed with DHS that the proposed rule “should not be interpreted as suggesting that DHS itself doubts the legality of the 2012 DACA policy.” Another commenter stated that, like DOJ and DHS, they strongly disagreed rulemaking is necessary for DACA. However, the commenter said, because litigation has challenged the legality of the policy and prompted DHS to engage in formal rulemaking, DHS taking the additional step to “preserve and fortify” the policy through the rulemaking process not only strengthens the legal foundation for the policy, but also provides DHS with the opportunity to expand and modernize it.
Referencing the proposed language at 8 CFR 236.21 set forth in the NPRM, a group of commenters characterized this section of the proposed rule as a “clarification (for the courts)” of DHS's authority to regulate in this space. The commenters stated they hoped the agency would keep this section as clear as possible given the likelihood of litigation.
One commenter said the proposed rule provides a “rigorous” review of the legal precedent and broad executive authority, all of which provides a “strong” justification for DACA's
DHS agrees with commenters that the DACA policy has stood on strong legal footing since first set forth in the Napolitano Memorandum, even without engaging in full notice-and-comment rulemaking. DHS appreciates commenters' recognition of DHS's efforts to preserve and fortify DACA through this rulemaking. DHS agrees that 8 CFR 236.21 clearly articulates DACA's limited scope and DHS's authority for deferring action for the DACA population. DHS likewise agrees with commenters that DACA respects Congress' legislative scheme to regulate noncitizens present in the United States without authorization and eligibility for lawful immigration status, while providing stability to recipients through a lawful exercise of DHS's prosecutorial discretion.
DHS appreciates the commenter's concern about DACA recipients' current lack of ability to adjust status, but DHS disagrees with commenters to the extent they suggest the rule does or should provide a pathway to lawful immigration status, legal permanent residence, or U.S. citizenship. DHS appreciates commenters' concern about the current lack of a permanent immigration status for the DACA population. DHS reiterates its discussion in Section II.A.11 that it lacks the authority to provide legal immigration status through rulemaking. DHS nevertheless ultimately agrees with commenters that this rulemaking is a lawful exercise of its statutory authority.
Multiple commenters referenced 8 U.S.C. 1103(a) in stating that Congress empowered the Secretary with broad authority to administer and enforce immigration laws, with one commenter stating that such authority must include the ability to set enforcement priorities for an agency with limited resources. Also citing 6 U.S.C. 202(5), commenters wrote that Congress has broadly authorized DHS to establish national immigration enforcement policies and priorities. One of these commenters said that, as a purely practical matter, the Executive must be able to set priorities for administrative agencies with limited resources, and it may do so by choosing to defer action in certain areas. The commenter stated both the Supreme Court and Congress have recognized this authority, as Congress has enacted statutes expressly recognizing the legal authority to grant deferred action, and the Supreme Court has acknowledged the “regular practice” of “deferred action.” Another commenter similarly stated that as a purely practical matter, the Executive must be able to set priorities for administrative agencies with limited resources, and it may do so by choosing to defer action in certain areas. The commenter stated both the Supreme Court and Congress have recognized this authority, as Congress has enacted statutes expressly recognizing the legal authority to grant deferred action and the Supreme Court has acknowledged the “regular practice” of “deferred action.”
A commenter wrote that the president and executive agencies have the power to carry out legislation, interpret ambiguous provisions, and make decisions about how best to allocate scarce agency resources. Another commenter stated the Supreme Court on numerous occasions has reaffirmed the wide latitude agencies enjoy in deciding whether or when “to prosecute or enforce” laws within their purview. As recently as 2020, the commenter wrote, the Supreme Court affirmed the key part of deferred action when it stated in
A commenter added that for decades the Federal Government has implemented deferred action as a discretionary forbearance of removal. The commenter reasoned that this policy of deferring removal of noncitizens who came to this country as youth did not then (and does not now) create new rights for those individuals; rather, it is merely a recognition that as an agency, DHS (through USCIS), just as every other law enforcement agency, must exercise enforcement discretion. The commenter, writing that the proposed rule rightfully sets forth the position that people who otherwise qualify for DACA are not a priority for removal, urged DHS to maintain this policy in the final rule and use its discretion accordingly. A commenter stated that deportations are a discretionary duty of the executive branch as established by
A commenter stated that Congress, which has the ability to prohibit DHS from granting deferred action and work and travel authorization, through funding or through legislation, has not done so, implying the policy does not fall outside of congressional intent.
A commenter stated the DACA policy has been in place for a decade, and no State filed suit to challenge the legality of the Napolitano Memorandum until 2018—more than 5 years after the memorandum was issued. But beginning long before 2012, the commenter remarked, DHS and INS routinely exercised prosecutorial discretion to deprioritize categories of individuals for enforcement and to provide these individuals with adjacent, necessary privileges, such as work authorization. The commenter stated that the proposed rule, like the Napolitano Memorandum, therefore does not constitute a deviation from established practice, nor does the proposed rule constitute abandonment of the Executive's duty to enforce the immigration laws. Rather, the commenter stated, it represents the Executive's educated judgment about the best and most efficient way to enforce the immigration laws. Another commenter said this history refutes the Department's prior assertion in the Duke Memorandum that deferred action programs should be initiated by Congress. In fact, the commenter wrote, Congress later clarified, expanded, or adopted through statute many of the
Commenters further stated that previous executive action bears out the Government's authority to exercise discretion in enforcing immigration laws, saying that, since 1956, immigration agencies have issued policies granting individuals temporary and discretionary relief from deportation and, in many cases, work authorization, without opposition from Congress or the courts. A commenter stated that these prosecutorial discretion policies have allowed the executive branch to balance competing domestic policy objectives, foreign policy concerns, and humanitarian considerations. Multiple commenters wrote that existing areas of humanitarian relief, such as VAWA self-petitions, U nonimmigrant status, and TPS, demonstrate the well-established character and practice of granting deferred action for sympathetic, nonpriority populations. Another commenter pointed to 17 deferred action policies other than DACA that were enacted without being judicially challenged. In particular, the commenter wrote, President Reagan's “Family Fairness” program often draws comparison with DACA, as it provided deferred action for the children of parents eligible for legal status and, like DACA, provided an opportunity for employment authorization.
Another commenter stated that even the detractors of DACA acknowledge its legality amid their challenges by recognizing DHS has the authority to defer enforcement against migrants. Subjected to scrutiny and rulemaking, the commenter said, DACA has been and remains a lawful vehicle for protecting migrants brought to the United States as young children. The commenter concluded that, just as the Napolitano Memorandum emphasizes not only the legality, but also the necessity, of exercising prosecutorial discretion on a case-by-case basis, so too does the proposed rule both meet and exceed the threshold requirements of the APA and INA. A commenter wrote that Congress and the courts have recognized the importance of child well-being and family unity as a basis for humanitarian considerations in immigration law and the executive branch's authority to exercise its discretion.
A commenter stated that DHS's decision to undertake full notice-and-comment rulemaking in this instance does not reflect a requirement to do so when implementing deferred action policies or exercising other forms of prosecutorial discretion in the future. Citing DOJ's Justice Manual and Supreme Court caselaw on prosecutorial discretion,
DHS also agrees the extensive use of deferred action in the past by both INS and DHS to facilitate enforcement priorities further indicates the lawfulness of this rule. Although VAWA self-petitions, U-visas, and TPS are statutory forms of substantive immigration benefits (and therefore distinguishable from the DACA policy, which constitutes only an exercise of prosecutorial discretion to defer enforcement action against removable noncitizens), DHS accordingly nevertheless agrees with commenters that the long history of deferred action immigration policies originating with INS or DHS rebuts any assertion that such policies must always originate in Congress with a law specific to the particular population at issue.
DHS appreciates commenters' recognition of the numerous similarities between DACA and prior instances of deferred action and agrees the DACA population shares a number of sympathetic characteristics with the target populations of prior deferred action policies, making members of the DACA population prime candidates for deferred action themselves. DHS agrees that DACA is another in a long line of deferred action policies that have facilitated the necessary prioritization of enforcement resources by granting forbearance to sympathetic populations of noncitizens in the United States. DHS agrees that such populations have
DHS shares commenters' view that in addition to DHS's authority to forbear from pursuing the removal of DACA recipients, DHS has authority to allow such DACA recipients to work during their time in the United States, and that work authorization is just as necessary and appropriate for the DACA population as it was, for example, for the population that received deferred action under the Family Fairness policy. DHS addresses comments related to work authorization, lawful presence, and non-accrual of unlawful presence more fully later in this preamble.
A commenter stated that DACA does not violate the INA and is a lawful exercise of executive discretion conferred by Congress, contrary to the district court's 2021 decision in
A commenter stated that it was “unclear” whether the rulemaking would be deemed legal if the litigation begun in 2018 is upheld by the Supreme Court but remarked that their research disputes that any irreparable harm or additional costs to States would be caused by the proposed rule.
Citing
DHS has given careful consideration to the district court's reasoning regarding the substantive legality of the DACA policy and the court's conclusion that the policy is not authorized by the INA. For reasons set forth above and below, in the preamble to the proposed rule,
Additionally, DHS is clarifying at new 8 CFR 236.21(d) that this rule rescinds and replaces the DACA guidance set forth in the Napolitano Memorandum and governs all current and future DACA grants and requests from this point forward. It further clarifies that existing recipients need not request DACA anew under this new rule to retain their current DACA grants. Although incorporating such a provision into regulatory text is a departure from previous practice, in light of the various issues and concerns raised in ongoing litigation challenging the Napolitano Memorandum, DHS has determined that doing so is appropriate in this context.
A couple of commenters understood the proposed rule as indicating that the forthcoming final rule would displace the Napolitano Memorandum and establish a new and independent basis through which existing DACA recipients can maintain their deferred action. The commenters agreed with that approach and suggested the final rule state even more clearly that it supplants the Napolitano Memorandum, which the commenters said would benefit current DACA recipients by providing them with additional certainty. In addition, the commenters stated that this clarification would provide broader certainty by making even clearer that the pending litigation over the Napolitano Memorandum is moot because that memorandum no longer has any independent legal effect.
A commenter urged the administration to make all reasonable efforts to preserve and strengthen DACA, including ensuring that DHS is authorized to promulgate future policy and operational guidance for the policy, consistent with the objectives of the 2012 policy.
A commenter wrote that a policy such as DACA should be a law written by Congress and not made as an agency rule change. However, the commenter stated, given the current partisan nature of Congress and the low likelihood of Congress settling the issue of DACA anytime soon, the proposed rule allowing DACA to continue is “perhaps the best we can hope for.”
DHS appreciates the comment concerning DHS's efforts to protect DACA recipients. DHS assures all interested parties that it is taking all available action to preserve and fortify DACA consistent with the President's directive. DHS likewise appreciates the commenter's statements concerning the desirability of Congress enacting legislation to protect the DACA population. In the absence of such action, DHS believes that DACA is a viable approach that accommodates the relevant reliance interests while preserving DHS's discretion on a case-by-case basis.
One commenter stated that the rule should directly address DHS's prior statements that
DHS should enforce the policies reflected in the laws adopted by Congress and should not adopt public policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion—particularly a class that Congress
The commenter stated that DHS should explicitly recognize the merits and benefits of a broader approach, which enables the development of enforcement priorities under limited resources, reduces the need for further investigation by officers, and streamlines an enforcement officer's review of whether a DACA recipient should be an enforcement priority. According to the commenter, these benefits, which are inherent to a broad scope and the ease with which DACA can be applied, refute DHS's previous assertions that DACA is unwisely broad.
One commenter expressed strong support for the aspects of the proposed rule that would maintain forbearance from removal. Another stated that temporary forbearance of removal would not carry the same protections as a more permanent forbearance, and that identifying DACA recipients as generally a low priority for enforcement action does not assuage fears that removal actions will nonetheless be taken as anxiety and reservation remains about the lack of stability. While recognizing that USCIS may not be able to address this directly, since permanent congressional action is needed to at least in part address this barrier, the commenter said that USCIS “tak[ing] all measures possible” to expand the protections and rights of DACA recipients to the extent permitted is in the best interests of USCIS resources; local, State, and Federal economies; the well-being of U.S. communities; and the individuals themselves.
One commenter, by contrast, suggested that individuals should only be considered for forbearance when apprehended. The commenter stated that this would not only release the pressure on USCIS' “already stressed system” but also provide “a more consistent application of law and allow[ ] DHS to propose rules to guide ICE and CBP on enforcement priorities.” Another commenter stated that the proposed rule prevents the removal of DACA recipients despite Congress having dictated their eligibility for removal. This commenter also stated that the proposed rule is not simply a “non-enforcement policy” or prosecutorial discretion, but instead creates standardized proceedings by which DHS solicits and reviews requests from eligible aliens, effectively engaging in adjudications where the result is (likely) an affirmative act of approval. Another commenter opposing the rule stated there is a difference between forbearance from enforcement and actively granting the benefits of employment authorization, travel permission, and lawful presence. The commenter said that the logic that forbearance from enforcement action requires grants of immigration benefits through USCIS is flawed and unexplained.
Similarly, a commenter stated that the proposal to charge separate fees for the deferred action request did not adequately address the
Some commenters suggested that additional policies should be adopted for coordination among DHS subagencies to prevent the erosion of DACA protections for recipients related to removal proceedings, including:
• Not issuing NTAs against DACA recipients or DACA-eligible individuals unless and until USCIS terminates their DACA.
• Exercising favorable prosecutorial discretion by joining motions by DACA recipients or DACA-eligible individuals to reopen, terminate, dismiss, or administratively close removal proceedings. The commenter stated that these protections would be in line with May 2021 guidance issued by the ICE Office of the Principal Legal Advisor recognizing the dismissal of cases of noncitizens likely to be granted temporary or permanent relief or who present compelling humanitarian factors, as well as recent decisions recognizing immigration judges' authority to administratively close and terminate removal proceedings.
• Adopting provisions to provide for cooperation among components with respect to removal proceedings, ensuring consistent and fair DACA decisions.
A commenter stated that it is costly for ICE to litigate removal proceedings against DACA recipients and DACA-eligible individuals, adding that the cost savings referenced at 86 FR 53794 would be nullified if individual ICE officers issue NTAs or oppose, for example, motions to administratively close removal proceedings for DACA recipients and DACA-eligible individuals, and stating that the proposed rule erroneously assumes ICE acts in a manner consistent with DACA protections. Conversely, the commenter said, past practice demonstrated that ICE and CBP have issued NTAs to DACA recipients who, per DACA guidance and established definitions, are not enforcement priorities. The commenter concluded that, without regulatory language directing DHS components to act according to USCIS' DACA request determinations and eligibility guidelines, recipients would continue to be subject to ICE officers' de facto veto power over a DACA grant.
Another commenter stated that such additional policies would reduce mental health harms to recipients facing uncertainty while promoting efficiency and cost savings. The commenter said that the decreased likelihood of mental health problems would allow DACA recipients to flourish as members of society and of the U.S. workforce. Furthermore, the commenter stated that future administrations could alter ICE enforcement priorities without first going through notice-and-comment rulemaking, thus leaving DACA recipients vulnerable to termination of DACA with no due process protections. The commenter recommended that DHS codify the above additional protections to promote efficiency and due process and to adhere to the administration's directive to “preserve and fortify” DACA.
DHS agrees with commenters that the proposed deferred action definition is consistent with longstanding legal and historical practice. DHS acknowledges commenters' concern with the temporary aspect of the definition of deferred action, but notes that DHS does not have the authority to provide a permanent solution absent action by Congress. DHS further acknowledges commenters' concern that the definition of deferred action does not prohibit DHS from initiating enforcement action; however, the purpose of deferred action is to identify a person as a low priority for removal, rather than to eliminate all possibility of enforcement action. DHS therefore intends to maintain the ability to determine that an individual is no longer a low priority for removal.
DHS disagrees with the suggestion that individuals should only be considered for forbearance when apprehended, as this merely shifts resource burdens within DHS, does not enable DHS to realize the full potential of resource savings, as discussed in Section II.A.8, and could create a perverse incentive for individuals to seek out immigration encounters. As explained in the proposed rule at 86 FR 53752, the proposed framework would enable DHS to continue to realize the efficiency benefits of the DACA policy. USCIS' determination that an individual meets the DACA guidelines and merits a favorable exercise of discretion assists law enforcement activities in several areas by streamlining the review required when officers encounter a DACA recipient.
DHS further disagrees that utilizing a standard process to consider requests for deferred action transforms DACA into more than prosecutorial discretion. As noted by the commenter who encouraged DHS to speak to the benefits of the approach taken here, this rule structures the exercise of prosecutorial discretion in a proactive, organized, and efficient manner. This approach allows for the exercise of the Secretary's authority while providing for case-by-case consideration and collection of fees to cover the cost of determining whether the noncitizen is a high or low enforcement priority. Such a structure has certain benefits, but does not make this rule any less of an exercise in enforcement discretion.
DHS disagrees with the suggestion that the rule “requires grants of immigration benefits.” Nothing in the Napolitano Memorandum, the proposed rule, or this final rule requires DHS to grant immigration benefits to recipients of deferred action. Rather, DHS, in the exercise of its discretion and pursuant to underlying statutory authority, may indicate its intention to forbear from removing certain individuals who are low priorities for enforcement. Separately, DHS also may grant ancillary benefits such as employment authorization, as well as provide for limited circumstances in which DACA recipients will be considered lawfully present, as explained more fully elsewhere in this rule. DHS further incorporates here its points in the preamble to the NPRM at 86 FR 53756-53762 regarding DHS's view that employment authorization, advance parole, and lawful presence may be provided in conjunction with DACA's forbearance of removal. But DHS reiterates its view that deferred action provides for temporary forbearance from removal without “requir[ing]” the conferral of other benefits.
DHS also disagrees with a commenter's characterization of the NPRM as it relates to the
DHS acknowledges commenters' suggestions that the rule include provisions relating to other DHS immigration components' enforcement actions with respect to DACA recipients or individuals who meet the DACA criteria. However, DHS believes that direction for CBP and ICE with respect to their handling of DACA recipients, beyond that which was contained in the NPRM, is most appropriately left for subregulatory guidance. Finally, DHS notes that the commenter suggesting that DACA recipients' removal proceedings should not be continued, administratively closed, or dismissed “without prejudice” misunderstands the meaning of “without prejudice.” In the removal proceedings context, an action taken “without prejudice” means without prejudice to further action (
Accordingly, DHS will not be making any changes to 8 CFR 236.21(c)(1) in response to public comments.
Considering such personal and societal benefits, a commenter stated that it had significant interests in preventing the disruption of the employment relationship with its DACA-recipient personnel. The commenter stated that it employs 500 DACA beneficiaries across every division in the company, across 38 States, and in all regions of the country. Many commenters urged DHS to ensure that deferred action and employment authorization remain connected in the rule, and that DACA recipients' ability to request EADs is protected. Other commenters expressed support for including employment authorization in the proposed rule but commented that the proposed disaggregation of other benefits from enforcement forbearance would not make it any less important. Some commenters stated that DACA-eligible individuals should be granted work authorization, or the opportunity to work, because they deserve the opportunity to support themselves financially, and because they want to make, and are capable of making, important economic and labor contributions to society. A commenter stated that more should be done to minimize barriers to employment authorization. Another commenter recommended that DHS and the Federal Government continue to strongly defend the ability of DACA recipients to apply for work authorization and to reach their full potential. A commenter stressed that the proposed rule allows local communities to continue to benefit from the important contributions of the DACA workforce, including in frontline healthcare, law enforcement, social services, land-use planning, teaching, and road repair.
In this regard, DHS emphasizes that self-reliance is beneficial not only to the social and economic prosperity of recipients of deferred action under the DACA policy, but also to the well-being of those individuals' families and communities, and to the workforce more broadly. Work authorization enables DACA recipients lawfully to support themselves and their families instead of risking potential exploitation in the shadow economy. As a commenter pointed out, companies have invested substantial resources in their DACA-recipient employees, and DHS agrees DACA recipients are not the only population that benefits from this rule; this rule also serves businesses' substantial reliance interest in the continued employment of employees in whom they have made significant tangible and intangible investments. Furthermore, a 2020 survey indicates that employment authorization for DACA recipients supports business creation, indicating that 6.1 percent of DACA recipients surveyed reported that they started their own businesses after receiving DACA, and that among respondents 25 years old and older, this increased to 7 percent.
Employment authorization for DACA recipients also helps to prevent their need for public assistance to the extent such limited assistance is available to them. Although DACA recipients do not constitute “qualified alien[s]” for purposes of eligibility for most Federal public benefits under PRWORA,
DHS appreciates one commenter's desire to see even more done to minimize barriers to DACA recipients' employment. This commenter advocated that DHS lower the application fees, shorten the application processing backlog, guarantee work authorization, and extend the duration of work authorization. However, as set forth elsewhere in this rule, DHS believes the current application fees are appropriate for the time being. DHS also reiterates the limits of this rulemaking, which, as discussed elsewhere in this preamble in more detail, focuses on preserving and fortifying the policy as set forth in the Napolitano Memorandum.
Citing references, a commenter discussed in detail the current and future need for medical physicians and how DACA work permits allow medical schools to accept these noncitizens, enabling the number of matriculants with DACA to steadily grow since 2013. This commenter stated that over the course of one year, DACA-recipient physicians will collectively care for 700,000 to 2.1 million patients, totaling more than 5.1 million U.S. patients over the course of their careers. The commenter concluded that the administration should take action to expand eligibility for Federal student aid and education loans to DACA recipients to enable these individuals to pay for the incredibly high costs of medical education. Another commenter stated that the current healthcare staffing gaps associated with the COVID-19 pandemic could be filled by DACA recipients. The commenter cited research stating that 8,600 healthcare workers in California have DACA. The commenter concluded that DACA and work authorization would help to adequately address the current healthcare staffing shortage, which the commenter warned could last until 2026.
DHS appreciates the comment citing statistics about the volume of care provided by DACA-recipient physicians. DHS deeply appreciates these contributions. DHS recognizes that DACA recipients fill critical roles in the healthcare field and the high cost of entry into this field, especially for physicians. At the same time, DHS lacks authority to alter DACA recipients' statutory ineligibility for Federal student aid through rulemaking. Comments concerning DACA recipients' eligibility for benefits not administered by DHS are also addressed elsewhere in this preamble. Still, DHS remains committed to preserving and fortifying the policies upon which DACA recipients and their families, employers, schools, and communities have come to rely.
A commenter expressed opposition to the proposal's provision granting work authorization to DACA recipients who establish an arbitrary economic need and suggested instead that all DACA recipients receive work authorization under the proposal. A few other commenters likewise opposed the economic need requirement for employment authorization. A commenter stated that requiring economic need imposes assumptions and limitations on DACA recipients' choices and growth. A commenter recommended the statement of economic need be eliminated, as EADs often are used as a primary form of identification for noncitizens, aside from their intended purpose. Without an EAD, the commenter stated, a noncitizen cannot obtain a Social Security number or State identification, which are necessary to conduct activities of daily life.
One commenter went further, saying DHS should prioritize a DACA framework that automatically grants work permit benefits alongside “deportation protection.” A commenter likewise recommended work authorization “continue to be granted automatically and coincide with granting DACA.” Other commenters similarly suggested automatic, permanent, or guaranteed work authorization grants alongside deferred action.
Numerous commenters added that USCIS verifies underlying status with a Form I-821D approval, which could be sufficient for I-9 authorization. They concluded the I-765 adjudication is an unnecessary use of the agency's time and resources that creates significant
DHS acknowledges some commenters' calls for DHS to eliminate the economic necessity requirement altogether, along with other commenters' suggestion to automatically grant employment authorization to DACA recipients alongside deferred action. DHS appreciates commenters' concern about DACA recipients' continued access to employment authorization under this rule. DACA is a discretionary policy, however, and DHS has determined that, as such, employment authorization also should remain discretionary and require a showing of economic need as has been the case since the beginning of the DACA policy in 2012, and in keeping with pre-existing regulatory requirements for deferred action recipients seeking employment authorization. To automatically grant employment authorization to every DACA recipient would mean that such authorization would effectively be “incident to status,” as it is for certain types of lawful immigration status, such as refugee, asylum, and TPS.
DHS thanks commenters for their suggestions pertaining to expanding on the concept of economic necessity in the final rule to expressly recognize the costs of pursuing higher education. However, DHS declines to write such granularity into the final rule. This rule continues historical practice by basing the economic necessity inquiry on the Federal Poverty Guidelines and existing regulations at 8 CFR 274a.12(e). That regulation broadly provides an applicant's assets, income, and expenses all may constitute evidence of economic need to work. DHS believes that this regulation—particularly its provision for consideration of expenses—provides adjudicators with sufficient leeway to consider the costs attendant to pursuing higher education when determining an applicant's economic need to work. And while it may be true that DACA requestors' economic necessity to work is often obvious, DHS maintains its position that the current employment authorization framework is sufficient to capture all the types of costs and expenses, including those for higher education, that DACA requestors and recipients may have and that may support their economic need to work.
Moreover, DHS's decision whether to grant discretionary employment authorization entails more than verifying the requestor's identity through adjudication of the Form I-821D. As explained above, requestors must establish economic necessity to work. DHS therefore disagrees with the commenter that adjudicating the Form I-765 and accompanying Form I-765WS is an unnecessary use of DHS's time and resources. Rather, those adjudications ensure applicants establish the requisite economic need to work. Because the current framework on economic necessity and work authorization has not proven unworkable over DACA's 10-year lifespan, DHS elects to maintain the status quo on this point.
A commenter stated that, should DACA recipients receive the ability to seek relief through a future longer term but nonrenewable work permit program, their ability to re-request deferred action under DACA should be protected. The commenter further reasoned, if a recipient obtained alternate relief through a longer-term work permit in the future, and Congress failed to pass a pathway to citizenship during the relief period, it would be important for those who did not renew their DACA request in that period to be allowed to request DACA again.
A commenter remarked that the proposal violates the provision at INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibiting DHS from providing work authorization to an “alien,” citing the statutory language. The commenter further stated that the interpretation cited in the proposed rule, 86 FR 53758, does not reflect the actual meaning of the statute, and that any examination of legislative history is irrelevant when the statutory language is clear. Ultimately, the commenter opposed the proposed rule, stating that it is inconsistent with the “INA's unambiguously specific and intricate provisions” regarding immigration status and work authorization.
DHS finds the commenters' arguments to the contrary unpersuasive. One commenter disagreed with DHS's interpretation that INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3), which defines an “unauthorized alien” for purposes of employment authorization as a noncitizen who “is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by
In the decades leading up to IRCA, the INS frequently stated its view of its authority to grant work authorization to certain classes of noncitizens, or restrict the work authorization of the same.
Congress then passed IRCA in 1986, making it unlawful for the first time for employers knowingly to hire an “unauthorized alien (as defined in subsection (h)(3))” for employment. 8 U.S.C. 1324a(a). Subsection (h)(3) defines an “unauthorized alien” in part as an individual whom the Attorney General has not authorized for employment. Thus, even though INA sec. 274a(h)(3) is “definitional” as one commenter observes, it is not meaningless or unimportant. To the contrary, that definition is part of IRCA and defines the scope of IRCA's core substantive provision that makes it unlawful to hire “an unauthorized alien
[T]he only logical way to interpret this phrase is that Congress, being fully aware of the Attorney General's authority to promulgate regulations, and approving of the manner in which he has exercised that authority in this matter, defined “unauthorized alien” in such fashion as to exclude aliens who have been authorized employment by the Attorney General through the regulatory process, in addition to those who are authorized employment by statute.
In other words, Congress was well aware of INS's view of its authority to grant work authorization when it passed IRCA, and chose expressly to acknowledge INS's practice on this point, ratifying it in the most comprehensive immigration legislation in a generation.
For this same reason, DHS disagrees with the commenter's assertion that Congress' expressly authorizing certain classes of noncitizens for employment in the years since IRCA's enactment negatively implicates DHS's ancillary and longstanding authority to grant discretionary work authorization. This assertion depends on a misuse of the “expressio unius est exclusio alterius” canon. The express authorization was supplemental to the general authority that already existed, and not in derogation of it or contradictory to it. As explained above, Congress has had ample opportunity for input through legislation on INS's authority to grant work authorization over the years. But in enacting IRCA Congress ratified the Attorney General's (now the Secretary's) authority to grant work authorization to various classes of noncitizens. Nor did Congress disturb this text or alter this authority in any way in other watershed immigration legislation since that time, including the Immigration Act of 1990, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, or the REAL ID Act of 2005.
DHS acknowledges that in prior litigation, the agency took the position that INA sec. 274a(h)(3), 8 U.S.C. 1324a(h)(3) did not authorize the Secretary to grant work authorization to recipients of deferred action under the DACA policy.
DHS acknowledges the commenter's concern for citizen workers during this period of particular economic uncertainty, but DHS disagrees that this rule would result in material adverse effects on such workers. As explained in greater detail elsewhere in this rule,
DHS likewise disagrees with the other commenter's position that INA sec. 236(a)(3), 8 U.S.C. 1226(a)(3), prohibits DHS from granting work authorization. DHS first notes INA sec. 236 governs the apprehension and detention of noncitizens pending removal proceedings. The commenter seeks to overextend that statute's reach, for there is no indication that Congress intended it to apply beyond the context of removal proceedings. In any event, as explained in the NPRM, DHS interprets the clause of INA sec. 236(a)(3) stating that DHS may not provide work authorization to a noncitizen in removal proceedings “unless the alien . . . otherwise would (without regard to removal proceedings) be provided such authorization” to represent Congress' further recognition that noncitizens who are not also permanent residents may nevertheless receive work authorization.
DHS has further considered the district and appellate court opinions questioning DHS's authority to provide employment authorizations to DAPA or DACA recipients, and respectfully disagrees with those decisions for the reasons explained in the proposed rule.
Several other commenters expressed concern with the separation of work authorization and deferred action, writing that access to deferred action and work authorization are not separate in their view. The commenters stated that the ability for DACA recipients to live with their families and communities without fear of deportation is synonymous with their ability to work legally and contribute to their families' and communities' economic well-being. The commenters acknowledged State legislators cannot grant work authorization to DACA recipients and instead must rely on DHS's discretion to do so.
A commenter stated that the proposed change would strengthen DACA's designation as an executive exercise of prosecutorial discretion because it would align DACA with other forms of prosecutorial discretion that grant employment authorization based on economic need. The commenter concluded that placing the program on firm ground with regard to prosecutorial discretion while providing financial relief and flexibility to DACA recipients would be essential “until there is a permanent congressional solution.”
Without clearly supporting or opposing the proposed unbundled process, other commenters urged DHS to proceed with caution and suggested ways to ameliorate concerns with the proposed provision, including: clearly and carefully communicating the change to the DACA population, ensuring DACA recipients who work without authorization do not face penalties, maintaining a procedure that would not confuse or cause backlogs in applications due to the extended process, and adding language to the rule that DACA and EAD applications USCIS receives concurrently are adjudicated together and have the same validity dates.
Expressing support for this provision, a commenter raised concerns that the optional form would effectively change the cost of DACA and questioned whether the reduced cost would result in substantially lower revenue for USCIS.
Most commenters who provided feedback on this provision expressed concern about the consequences it would have for DACA recipients, the application process, program benefits, or the integrity of the program overall. Many of these commenters urged DHS to instead retain the existing bundled process that has been in place since 2012, with some stating the proposed unbundled process undermined DACA.
A commenter stated that this change would be legally unnecessary, citing DHS's recognition that deferred action has never created an entitlement to employment authorization and that DACA recipients must show an economic necessity to obtain such authorization. The commenter concluded that the existing bundled process has promoted access to an important benefit while minimizing costs to requestors and DHS.
Another commenter remarked that an unbundled process could leave the program vulnerable to political attacks labeling DACA recipients as unproductive members of society, which could weaken support for DACA and leave the program open to future litigation. Similarly, another commenter noted that that the proposed unbundling could create an opportunity for individuals who are not motivated to work with authorization to forgo the Form I-765 filing fee.
A commenter stated that the NPRM's projection that 30 percent of DACA requestors would opt out of requesting employment authorization was at odds with rapidly changing individual circumstances and the importance of having the ability to work even if it is not continually exercised. The commenter concluded the vast majority afforded the opportunity to request work authorization will do so.
A commenter stated that, in its experience with the administration of and access to public benefit programs, duplicative applications create unnecessary barriers to participation, while increasing the administrative burden on requestors and the granting agencies. Similarly, commenters stated this change could increase time and resources spent on legal fees to submit additional paperwork or to navigate the new process. In addition to compounding burdens for requestors, agencies, and legal services providers, a commenter suggested that confusion related to this provision would overwhelm under-resourced organizations that assist DACA requestors.
A commenter said that many requestors with financial limitations may fail to understand the benefits of concurrently filing Forms I-821D and I-765. Other requestors, commenters remarked, may erroneously believe they can apply for deferred action and automatically receive employment authorization, or inadvertently fail to opt into applying for employment authorization, leading to further delays and the potential loss of employment opportunities.
Many commenters stated that the burden of this change could fall largely on pro se requestors, making the policy less accessible for those lacking proper guidance to navigate complex, evolving processes. A commenter said this provision would create an acute risk that pro se requestors would not understand that they must apply separately for an EAD under the new process, and that there would be a “skeletal track” resulting in deferred action alone. This confusion, the commenter warned, could result in EAD applications lagging behind DACA requests and subsequent losses in the work authorization period, despite paying the full fee for an EAD. Other commenters stated that these challenges would largely fall on first-generation noncitizens and requestors with limited resources.
Most commenters who raised concerns about a two-tiered system discussed the adverse impact on unauthorized workers, workplace safety, and labor rights. A commenter stated that unbundling deferred action and work authorization would lead to persons opting out of paying the Form I-765 fee for reasons of poverty, suggesting that the choice to delay entry into the workforce would not be done freely. Another commenter said the proposed change to the application process would result in some DACA recipients being granted DACA and not employment authorization.
A commenter remarked that this provision would make work authorization more difficult to obtain, “forcing” some individuals into precarious situations where they pursue unauthorized employment. This outcome, the commenter stated, would run counter to the agency's intention of using its power to protect wages, facilitate workplace safety, and enforce other labor and employment standards. Another commenter noted that, whether due to fear, confusion, or cost, requestors may be deterred from accessing work authorization under an unbundled process, which would open the possibility of a new “second class” of DACA recipients without work authorization. These DACA recipients who lack employment authorization, commenters stated, would open the door for increased unauthorized employment and empower unscrupulous employers to take advantage of unauthorized labor, including lower pay and exploitative, even hazardous work conditions. A commenter added that unscrupulous employers often exploit the lack of employment authorization to chill workers' efforts to organize, protest substandard working conditions, and enforce wage, safety, and discrimination laws, and also interfere with collective bargaining rights, suggesting that the proposed change could cause irreversible harm to many individuals by forcing them into informal employment. Citing studies, a commenter stated that the economic consequences of this change and possible involvement in abusive work situations would be particularly acute for populations that are disproportionately harmed by systemic inequalities, including LGBTQ populations, racial minorities, and people with disabilities.
A commenter expressed concern that a reduced population of work-authorized DACA recipients would lead to the DACA population's increased reliance on nonprofits, community organizations, and city or State funding for daily needs.
Commenters reasoned that deferred action and work authorization are not separate, as the ability for Dreamers to freely live with their families and communities is synonymous with their ability to legally work. A commenter said that DHS could not fortify DACA with a regulation that separates deferred action from employment authorization. In addition to stating the potential impacts of this change on the request process, the commenter added that the proposed change would weaken the purpose of DACA by undermining the worth and agency of childhood arrivals.
Many commenters noted that, if this provision led to any recipients losing their employment authorization, recipients also could lose the other benefits an EAD provides beyond the ability to work. Commenters said that the EAD functions as a foundational form of identification for many DACA recipients, who may find this new process confusing and, therefore, fail to reapply for this benefit. They reasoned that an EAD is often the only acceptable form of identification for obtaining a driver's license while providing access to a Social Security number, health insurance and preventative care, entrance to Federal buildings, social benefits, school registration for children, long-term educational opportunities, bank loans, and home utilities. Other commenters added that, without an EAD, DACA recipients have no way of demonstrating “lawful presence,” which is the criterion that some States have chosen to use for eligibility for a State identification card, which could in turn affect their right to domestic travel when full enforcement of REAL ID requirements begins. A commenter similarly stated that, even among those who do not require work authorization, an EAD is valuable for obtaining these additional benefits. Considering the loss of benefits for individuals only granted deferred action under this change, commenters suggested that recipients should be allowed to receive an alternative form of identification with their approved DACA request, including a Social Security number and Federal identification.
DHS is revising 8 CFR 236.23(d)(3) in this rule to remove the cross-reference to 8 CFR 274a.14(a)(1)(iv), which was vacated in
In proposed 8 CFR 236.21(c)(3) and (4), DHS proposed that DACA recipients, like all other deferred action recipients, would continue to be considered “lawfully present” (a legal term of art) for the purpose of receiving certain title II Social Security benefits under existing 8 CFR 1.3(a)(4)(vi) and would not accrue unlawful presence for inadmissibility determinations under INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) while they have DACA. Both provisions reflect policy and practice for persons subject to deferred action more broadly since well before the inception of DACA. As detailed below, the public comments on these two proposals were overwhelmingly supportive of the two proposed lawful presence provisions, with only a few commenters expressing opposition to them. Several of the supportive commenters also provided recommendations for additional modifications to the proposed provisions. DHS responds first to the supporting comments, then to the opposing comments, and finally to those comments that supported the lawful presence provisions but recommended certain modifications.
One commenter was particularly supportive of the proposal to treat DACA recipients as “lawfully present” for purposes of statutes governing eligibility for certain Federal benefits. Many commenters applauded the proposals for confirming that DACA recipients are deemed “lawfully present” and do not accrue unlawful presence, commenting that these individuals were not able to understand the implications of, nor control, their entry into the United States at a young age.
Many commenters were similarly supportive of the proposed rule's incorporation of DHS's longstanding policy that DACA recipients, like other deferred action recipients, do not accrue unlawful presence for purposes of the inadmissibility grounds in INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9) while their deferred action is valid. In expressing their support, commenters noted the following: accruing unlawful presence could otherwise present an obstacle to future admissibility; removing lawful presence for DACA recipients would create a permanent underclass and prevent such individuals from pursuing a green card; the treatment of DACA recipients as lawfully present helps shield and protect DACA recipients against adverse immigration consequences associated with the accrual of unlawful presence, including bars on reentry; accrual of unlawful presence would present barriers for individuals or their relatives to pursue legal pathways to permanent residency; maintaining the proposed rule's provision on unlawful presence will help ensure that the largest possible percentage of DACA recipients remain eligible for other forms of immigration relief; and holding DACA protections always should prevent the accrual of unlawful presence.
Several commenters specifically responded to DHS's request for comments on whether persons who receive deferred action pursuant to the proposed rule should be regarded as “lawfully present” or “unlawfully present” for purposes of eligibility for specified Federal public benefits under 8 U.S.C. 1611(b) and admissibility under 8 U.S.C. 1182(a)(9), respectively. Commenters stated that individuals with deferred action always have been covered by the lawfully present regulation and that any other formulation would break from legal precedent and longstanding policy, as well as create an unworkable and overly complex adjudication framework. One commenter said that changing longstanding policy around deferred action and lawful presence would create a logistical nightmare in the complex realm of immigration law. The commenter further stated that if such a change were made retroactive, it would fly in the face of extensive legal precedent regarding retroactive lawmaking, but if the change were not retroactive, USCIS would have the problem of determining when different recipients had DACA that prevented the accrual of unlawful presence (pre-rule) and when their DACA did not protect them from accruing such unlawful presence. According to the commenter, this would involve an increase in adjudication and require the expenditure of more agency resources that would significantly counterbalance any possible benefit of such a change, resources the commenter noted the DACA policy is intended to preserve. The commenter also stated that this would present constitutional issues under the Fifth Amendment's equal protection guarantee
Some commenters stated that they supported the provision to consider individuals with deferred action as lawfully present and opposed any DACA rule that would fail to confirm lawful presence for individuals with deferred action. Similar to the commenter noted above, these commenters said that any DACA rule that fails to include lawful presence could present Equal Protection Clause implications, citing the Fourteenth Amendment of the U.S. Constitution and stating that DHS must treat DACA recipients the same as individuals with other forms of deferred action. A form letter submitted by several commenters cited the Department of Health and Human Services (HHS) action stripping lawful presence for DACA recipients for Affordable Care Act (ACA) purposes as an agency action that received significant public opposition and worsened healthcare outcomes for impacted individuals. Several commenters noted that DHS should formalize its longstanding policy that DACA recipients granted deferred action do not accrue unlawful presence for purposes of INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9).
DHS also notes the concerns expressed by some commenters that a rule that states that DACA recipients, unlike other deferred action recipients, lack lawful presence would violate equal protection principles and that changing this policy would create significant operational complexity for DHS. Since DHS has not taken such an approach and the rule continues the long-existent policy that DACA recipients, similar to other deferred action recipients, are lawfully present for certain public benefits and do not accrue unlawful presence for purposes of section 212(a)(9)(B) of the INA, DHS does not express a position regarding the commenters' hypothetical equal protection arguments. DHS will address the claim if it becomes necessary to do so in a subsequent forum. However, DHS concurs that changing the policy regarding lawful presence would create significant operational complexity if done prospectively, as USCIS would need to determine in future adjudications the specific amount of unlawful presence accrued by DACA recipients on an individual basis.
One commenter stated that Congress' careful plan for the allotment of lawful presence forecloses the possibility that DHS may designate hundreds of thousands of people to be lawfully present. The commenter noted that the proposed rule would allow the Secretary to grant lawful presence and work authorization to every “illegal alien” in the United States. The commenter stated that the INA does not permit DHS to reclassify “illegal aliens” as “lawfully present” and eligible for Federal and State benefits, including work authorization. Another commenter similarly expressed opposition to the proposed rule for intentionally choosing not to enforce immigration law, stating that DACA recipients do not have lawful presence regardless of any economic activity in which they engage after entering the country illegally. The commenter further noted that the recipients' intent or age at the time has no relevance and that the commenter could not present a personal defense in court based upon a lack of knowledge of the law or lack of intent if charged of any crime. The commenter stated that illegally entering the United States is no exception.
In PRWORA,
DHS also disagrees with the commenters who expressed opposition to the proposed codification of the decade-long DHS practice of including DACA recipients within the group of all other deferred action recipients who do not accrue “unlawful presence” for purposes of the inadmissibility grounds in INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). For purposes of those specific grounds, Congress stated “an alien is deemed to be unlawfully present in the United States if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General [now Secretary] or is present in the United States without being admitted or paroled.”
DHS's interpretation does not mean that, in a broad sense, deferred action recipients, such as those with DACA, are lawfully in the United States for all purposes.
DHS has further considered the district and appellate court opinions concerning DHS's authority to deem DAPA or DACA recipients “lawfully present” for certain purposes, and respectfully disagrees with those decisions for the reasons explained in the proposed rule.
A commenter who commended DHS for its proposal to continue treating DACA recipients as “lawfully present,” and for clarifying the distinction from “lawful status,” also requested that DHS include details in the final rule explaining that DACA recipients would be eligible for any other forms of Federal benefits for lawfully present noncitizens associated with future laws or prospective legislative immigration reform (
Several commenters expressed support for granting lawful presence to DACA recipients to confirm Social Security eligibility, with one commenter citing research
Several of the commenters noted above, as well as other commenters, suggested that additional clarity was needed to assist State and Federal agencies in making decisions about benefit eligibility, including confirmation from USCIS that: (1) DACA recipients are authorized to be present in the United States during the period of their grant; (2) DACA recipients' grant of relief is identical to relief associated with any other person granted deferred action; and (3) individuals granted deferred action are permitted to establish domicile in the United States. Commenters also requested that the rule include language stating that individuals granted deferred action are not precluded by Federal law from establishing domicile in the United States, as this would assist the recipients in seeking certain State benefits. One such commenter also requested that DHS clarify that individuals with lawful presence are not prohibited from establishing domicile in the United States, stating that DACA recipients should be treated the same as other individuals with deferred action and suggesting that DHS take additional steps to communicate this clarification to other Federal and State agencies. The commenter said that confusion over whether DACA recipients can establish domicile in the United States would result in DACA recipients' exclusion from certain benefits and programs that are available to other individuals with deferred action (citing eligibility for residential property tax relief in South Carolina as an example of such exclusion).
Commenters noted that USCIS' posted Frequently Asked Questions (FAQs) on DACA
• While distinguishing lawful presence from lawful status, USCIS clarifies that “[a]n individual who has received deferred action is authorized by DHS to be present in the United States, and is therefore considered by DHS to be lawfully present during the period deferred action is in effect.” (A. 1) [of the DACA FAQs]
• USCIS explains that “[t]he relief an individual receives under DACA is identical for immigration purposes to the relief obtained by any person who receives deferred action as an act of prosecutorial discretion.” (A. 3) [of the DACA FAQs]
• USCIS confirms that “[i]ndividuals granted deferred action are not precluded by federal law from establishing domicile in the U.S.” (A.5) [of the DACA FAQs]
Commenters expressed support for the proposal's confirmation that DACA recipients would be considered lawfully present and its statement that DHS has treated persons who receive a period of deferred action under DACA like other deferred action recipients for purposes of establishing lawful presence. The commenters stated that this would ensure DACA recipients are eligible for Social Security and do not accrue unlawful presence toward the 3- and 10-year bars. The commenters further suggested that additional clarification was needed to ensure other Federal and State agencies understand the implications of a DACA grant, its relation to deferred action for other individuals, and any related interpretations of immigration law, citing DACA recipients' exclusion from certain healthcare benefits under the ACA as one example of the need for additional clarity.
One commenter recommended that DHS work with the HHS to extend health insurance coverage under the ACA to DACA recipients, stating that a lack of eligibility for ACA marketplace coverage contributes to higher uninsured rates among DACA recipients. Another commenter expressed support for providing access to affordable healthcare for all individuals, including DACA recipients, and urged DHS to ensure that DACA recipients are not excluded from purchasing subsidized health coverage through the ACA marketplace. Additional commenters agreed and recommended that DHS align the definition of “lawfully present” with eligibility requirements for certain health coverage programs to allow DACA recipients to access such programs and avoid disparate treatment. The commenters expressed concern about HHS' exclusion of DACA recipients from participation in Medicaid, the Children's Health Insurance Program (CHIP), and the ACA health insurance marketplace and said that other individuals with deferred action are eligible for such programs. The commenters questioned why DACA recipients are excluded from these important health programs and, citing research, said that participation in Medicaid is associated with higher educational attainment and greater financial stability. The commenters recommended that DHS clarify the definition of “lawfully present” to ensure DACA recipients are not excluded from Medicaid, CHIP, and subsidized health insurance through the ACA marketplace.
Citing research demonstrating the importance of access to healthcare for vulnerable immigrant populations, including immigrant women, a commenter also urged DHS to ensure that DACA recipients are eligible for all public benefits available to similarly situated immigrants, including Medicaid, CHIP, and subsidized health coverage through the ACA marketplace. The commenter said that access to healthcare is a critical equity consideration that the agency must consider in complying with Executive Order (E.O.) 13563 and its focus on promoting equity and fairness, and it urged DHS to ensure that DACA recipients are entitled to the same benefits as all other individuals considered “lawfully present.”
A commenter recommended that DHS grant deferred action retroactively to erase periods of unlawful presence accrued prior to confirmation of deferred action, particularly noting that such retroactivity should cover any period since June 15, 2007, because DACA requestors must establish that they have resided in the United States since that date. The commenter further noted that USCIS has the authority for such retroactive application of deferred action and gave as an example current practice that permits USCIS to grant “nunc pro tunc” reinstatement of status to individuals who have filed untimely Extension or Change of Status applications, meaning that unlawful presence is erased because the applicant is considered to have been in status the whole time.
DHS also declines to adopt the suggestion of the commenter who urged that the rule allow for the retroactive elimination of any unlawful presence time between June 15, 2007, and an individual's approval for DACA because the individual had to demonstrate continuous residence in the United States since that date to obtain deferred action under the DACA policy. The commenter likened this suggestion to a noncitizen who is in a lawful nonimmigrant status but who files late to extend or change that status to another nonimmigrant category and who, if approved, is allowed “nunc pro tunc” reinstatement of nonimmigrant status for the period between the initial status and the changed or extended status. Unlike the person who files late to change or extend a lawful nonimmigrant status and is approved, a DACA recipient is not in a lawful immigration status that is amenable to reinstatement “nunc pro tunc,” but rather enjoys a temporary period in which DHS has chosen not to remove them from the United States for a period of time in the future as an act of prosecutorial discretion. Thus, deferred action is a forward-facing step; forbearance not to remove a noncitizen for a period that already has passed would be meaningless and incompatible with DHS's general deferred action practices. For these reasons, DHS does not believe it may properly erase a person's pre-DACA unlawful presence by beginning deferred action from a date in the past.
Similarly, DHS is unable to adopt the suggestions of commenters to specify that DACA recipients will be considered “lawfully present” for purposes of current or future proposed legislation regarding noncitizens' eligibility for public benefits before such legislation is enacted. Until legislation is enacted that authorizes DHS to define who has lawful presence for particular purposes—as has occurred for the purpose of receiving certain Social Security benefits,
In response to commenters who recommended that DHS make clear that DACA recipients are affirmatively authorized to be in the United States during the period of their deferred action, DHS has plainly stated in 8 CFR 236.21(c) that the Department intends to forbear from removing DACA recipients from the United States. This is consistent with the fact that the DACA policy is an exercise of prosecutorial discretion and does not confer lawful immigration status, affirmative authorization to remain in the United States, or a defense to removal. In that sense, DACA differs from a grant of lawful immigration status such as permanent resident status, asylum, or TPS. At the same time and as noted previously, DHS also views an individual's time as a DACA recipient as “a period of stay authorized by the [Secretary]” under section 212(a)(9)(B)(ii); therefore, while the individual has DACA, there is no accrual of “unlawful presence” for inadmissibility purposes. DHS believes that the rule is more precise and sufficiently clear on this point as well. In response to the request that DHS clarify that its interpretation of “lawful presence” in the rule is at least as broad as its interpretation under prior DACA guidance, DHS confirms that the rule reflects the same longstanding treatment of DACA recipients as “lawfully present” for purposes described in 8 CFR 1.3(a)(4)(vi), and with regard to their nonaccrual of “unlawful presence” for purposes of INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9) while they have deferred action under DACA, as existed under DHS's DACA policy prior to implementation of this rule.
In terms of whether DACA is “identical relief” to other forms of deferred action, DHS agrees that forbearance from removal for a designated period applicable to the individual is true for DACA recipients as it is for all other deferred action recipients and that EADs for all deferred action recipients, including DACA recipients, are available based on a determination of economic need. However, DHS declines to adopt the suggestion made by some commenters to label DACA as “identical relief” to that provided to all other recipients of deferred action because DHS believes that using such a label could create confusion with respect to the bases for obtaining deferred action and the conditions that may apply to an
The Department understands the concerns expressed by some commenters regarding DACA recipients' ability to obtain State and local public benefits that require applicants to demonstrate “domicile” in a particular locality. Some commenters requested that the rule state that Federal law does not prohibit DACA recipients from establishing domicile while others urged an affirmative statement that DACA recipients may establish domicile in the United States. Although the Department knows of no Federal law that prohibits DACA recipients from establishing domicile within the United States, the Department declines to amend the text of the rule to address “domicile” explicitly because doing so would be outside the scope of the rule, and Congress has not directed the Department to provide guidance on or a definition of “domicile” for any Federal, State, or local public benefit purposes.
The Department also understands and respects the concerns expressed by several commenters who requested that the rule clarify for Federal, State, and local governments that DACA recipients are considered “lawfully present” for purposes of all public benefits that require such presence for eligibility. However, absent a specific authorizing law, the Department does not have the authority to mandate that other Federal, State, and local departments and agencies provide benefits that they administer to DACA recipients, even when DHS categorizes them as “lawfully present” for certain discrete, limited purposes. Subject to enacted laws, DHS may only determine the categories of immigration status or other authorization (or lack of either) that apply to noncitizens. Through programs such as Systematic Alien Verification for Entitlements, DHS thus informs participating benefit-administering agencies of the immigration category that may apply to a particular person. DHS does not, however, establish the eligibility rules or administer Federal, State, or local public benefits such as those that provide for health, housing, food, education, and general welfare. Other departments and agencies, such as HHS, the Social Security Administration, and the U.S. Department of Agriculture, have those responsibilities.
With limited exceptions, noncitizens who are not “qualified aliens” as defined in 8 U.S.C. 1641 are not eligible for Federal public benefits.
Commenters also recommended that DHS work with other Federal agencies, such as HHS, to amend their guidance and regulations to clarify that DACA recipients are eligible for benefits under the ACA. DHS acknowledges the suggestion, but these topics are also beyond the scope of this rulemaking.
Regarding one commenter's concern that the NPRM deprives ICE and CBP officers of discretion by suggesting that an officer may be able to make a determination without necessitating
Another commenter stated that they supported instituting the DACA policy via regulation but opposed empowering officers to deny, in an exercise of discretion, DACA requests that otherwise meet threshold criteria for a grant of deferred action. This commenter stated that the language of proposed 8 CFR 236.22(c) does not provide clarity to requestors or to USCIS adjudicators as to what circumstances would be considered nor what would make deferred action inappropriate, and the proposed rule preamble provides little additional clarity. The commenter said that the proposed rule states only that: (1) USCIS would review the totality of the circumstances to see if there are any negative factors that would make the grant of deferred action inappropriate or that outweigh the positive factors; and (2) foreign convictions, minor traffic offenses, and other criminal activity outside of what is described by proposed 8 CFR 236.22(b)(6) would be considered in the totality of the circumstances. However, the commenter said, there is no further guidance in the proposed rule as to what, if any, additional factors should be considered nor how to analyze any of these factors in making a determination to grant deferred action. Contrary to DHS's explanation that the threshold discretionary requirements in combination with the exercise of discretion is meant to promote consistency and avoid arbitrariness in grants of deferred action, the commenter wrote, applying discretion to these adjudications would have the opposite effect.
The commenter also said that the absence of clarity in the proposed rule combined with USCIS' policy guidance for applying discretion in adjudications would result in inconsistent and arbitrary grants of deferred action for those individuals who otherwise meet the threshold requirements for DACA. The commenter discussed the USCIS Policy Manual guidance on discretion, stating that it would be the primary tool used by adjudicators in making a discretionary analysis. The commenter said that: (1) the methodology for discretionary analysis set out in the USCIS Policy Manual would result in arbitrary and capricious decisions that are inconsistent and reliant on biased assumptions; (2) the Policy Manual does not provide clear guidelines for adjudication; (3) the Policy Manual's guidance regarding the weighing of discretionary factors is confusing and contradictory; and (4) amendments to the Policy Manual were based on a discriminatory and illegal animus toward immigrants and were intended to further undermine the function of the lawful immigration system.
DHS appreciates the commenter's feedback on the USCIS Policy Manual but declines to address it further as the Policy Manual is outside of the scope of this rulemaking. DHS is therefore not making any changes in response to these comments.
Referencing the proposed rule's discussion in the preamble of primary and secondary evidentiary requirements, a commenter stated that the provisions continue to reflect a first world understanding of documentation from countries of origin and the ability of a DACA requestor to find and obtain these records. The commenter said the provisions would benefit from greater clarification on further examples of circumstantial documentary evidence that DHS would accept as part of DACA requests from individuals who do not benefit from the powerful consular help that a country of origin like Mexico provides. Other commenters said that many farmworkers and their families may have difficulty accessing identification documents, such as birth certificates, as births may not be registered or may be registered incorrectly. Considering these concerns, the commenters encouraged DHS to maintain a flexible approach regarding documentation.
The DACA requestor has the burden to demonstrate that they meet the threshold criteria by a preponderance of the evidence.
Consistent with longstanding practice and as proposed in the preamble of the NPRM, DHS will accept either primary or secondary evidence to determine whether the DACA requestor meets the threshold criteria. As used in this final rule, primary evidence means documentation, such as a birth certificate, that, on its face, proves a fact. Secondary evidence means other documentation that could lead the reviewer to conclude that it is more likely than not that the fact sought to be proven is true. In response to a commenter's request that DHS provide greater clarification of what may constitute qualifying secondary evidence, DHS is expanding here on the examples provided in the NPRM preamble, but cautions that these examples are not meant to be exhaustive. Such examples of secondary evidence may include baptismal records issued by a church or school records with a date of birth showing that the DACA requestor was born at a certain time, rental agreements in the name of the DACA requestor's parents, or the listing of the DACA requestor as a dependent on their parents' tax return to demonstrate periods of residence in the United States. Secondary evidence may, but does not necessarily, require corroboration with other evidence submitted by the requestor. DHS will evaluate the totality of all the evidence to determine if the threshold criteria have been met.
Another commenter stated that, if DHS publishes the proposed rule as is, it should clarify that affidavits will be accepted as evidence for all the eligibility requirements, including physical presence, continuous residence, and lack of lawful status. The commenter said that this policy should be codified in regulation, such as through a separate evidentiary section in 8 CFR 236.22. The commenter wrote that this regulation could adopt the “any credible evidence” standard used in other areas of immigration law, with which immigration practitioners are familiar, thus creating much-needed flexibility.
A joint comment also stated that DHS should demonstrate increased flexibility in allowing requestors to meet documentation requirements, commenting that farmworkers and their family members face extreme difficulty meeting the documentation requirements of DACA. To help remedy this issue, the commenter urged DHS to provide that affidavits would be accepted as secondary evidence for all requestors at all stages of their request and to not require supplemental documents beyond affidavits, as that undermines requestors who do not have other forms of documentation. Another commenter said that DHS could improve access to DACA by including references to sworn affidavits as acceptable evidence, accepting affidavits as proof of satisfying that the requestor came to the United States before reaching their 16th birthday, and accepting affidavits from the requestors themselves.
As stated in the NPRM and consistent with longstanding practice, while there are certain circumstances in which affidavits may be submitted in lieu of primary or secondary evidence, affidavits are generally not sufficient on their own to demonstrate that a requestor meets the DACA threshold criteria. This is reflective of DHS's desire to balance that under the preponderance of the evidence standard, the evidence must show that the facts asserted are more likely than not to be so, while also allowing for some flexibility to account for circumstances in which DACA requestors may not have access to primary or secondary evidence for reasons beyond their control.
One circumstance in which affidavits may be used in lieu of primary and secondary evidence is in support of a requestor meeting the continuous residence requirement. Another circumstance is where there may be a shortcoming in documentation with respect to brief, casual, and innocent departures during the continuous residence period before August 15, 2012. DHS will consider affidavits in these contexts in recognition of the challenges DACA requestors may face in obtaining primary or secondary evidence in these contexts, particularly for those who may have been very young during the periods for which documentation is needed.
Finally, as discussed in further detail below, in recognition of the challenges faced in obtaining primary and secondary evidence for the start of the continuous residence period for new initial requestors for DACA who may have been very young at the time of entry to the United States, DHS will consider affidavits in this context when assessing whether the new initial requestor has submitted sufficient evidence to demonstrate their residence in the United States at the beginning of the continuous residence period.
While some of these commenters did not suggest a specific age for modifying this threshold requirement, others urged DHS to change the age of entry to be consistent with other laws that define childhood and the age of majority. Many commenters suggested that DHS revise the arrival age to 18, with some saying that a minor is legally defined as someone under age 18. Some commenters stated that some of the proposed legislation for Dreamers requires a requestor to have entered the United States before the age of 18, including the DREAM Act, the Health, Opportunity, and Personal Empowerment Act, and the American Dream and Promise Act. A few commenters noted that the definition of an unaccompanied child under Federal law references children without a parent or legal guardian and without lawful immigration status who have not yet reached the age of 18 (6 U.S.C. 279(g)(2)). A joint comment submission also said that the cutoff age of 16 is contrary to other U.S. societal norms regarding who is considered a child, such as individuals under 18 not being allowed to vote, join the military, or work in most hazardous occupations.
Some commenters urged DHS to expand the age of entry to 21, as INA sec. 101(b)(1), 8 U.S.C. 1101(b)(1) defines a child as “an unmarried person under twenty-one years of age.” A couple of commenters remarked that this definition governs other types of immigration benefits (
One commenter stated the rule perpetuates the inconsistency and unfairness of an age-16 cap, and said that whether looking at ages of majority, high-school enrollment ages, humanitarian definitions of unaccompanied children, or the INA itself, defining children as under 18 or under 21 is more common and accurate. The commenter concluded that retaining this threshold requirement would echo anti-immigrant propaganda hostile to treating 16- and 17-year-old teenagers as children.
One commenter stated that the proposed rule must offer a justification and explanation for the age cutoff rather than reiterating the policy from the Napolitano Memorandum, as there is no way to determine that this decision of age 16 is not capricious. Another commenter stated that DHS should be concerned that the proposed rule would entirely exclude younger “Generation Z” undocumented students. The commenter remarked that this would amount to an unforced error and create bitterness and disillusionment among young people who have lived in the United States most of their lives and have witnessed the benefits of DACA.
DHS also recognizes that certain laws and intergovernmental bodies may define a child as a person up to the age of 18 or 21.
Other commenters stated that USCIS should preserve and fortify DACA without turning back the clock to 2012. The commenters said that DACA's original eligibility date was arbitrary, and USCIS could advance the date to expand the number of eligible individuals through rulemaking, thus strengthening the program's humanitarian impact while yielding greater economic and social benefits. A commenter similarly said that DACA's timeline still operates from the Napolitano Memorandum, which has remained untouched despite the lack of progress in getting any permanent legislative solutions passed through Congress. The commenter said it is time to strengthen, not weaken, the program and protect those who have grown up in the United States as the only home they have ever known.
Many commenters said that USCIS should revise the “continuous residence” date or “continuous presence” date to 5 years before the publication or implementation of this final rule to expand eligibility for DACA to younger individuals. Some of these commenters stated that the 2007 continuous residence date was 5 years before President Obama created DACA, and another remarked that this would be consistent with other areas of immigration law, such as naturalization. Other commenters similarly wrote that the continuous residence requirement should be updated to be closer to the date of the final rule given that the 2007 date is based on the 2012 issuance of the initial DACA policy. Similarly, another commenter said that DHS should draw from the original intent of DACA in 2012, which required a minimum continuous presence of 5 years, not 14 or more, which is unduly burdensome. The commenter said that Dreamers who spend their entire lives in the United States would be left without any relief if DHS does not adjust the continuous presence requirements to reflect the original intent of President Obama's Executive order.
Commenters recommended a number of alternative continuous residence dates, including June 15, 2017, January 21, 2021, or five years prior to the publication of the final rule. Commenters stated that advancing the continuous residence date would provide more young people with the opportunity to succeed and contribute to society. One of these commenters noted that, because individuals must be age 15 or over to request DACA and have had continuous presence since June 15, 2007, by June 15, 2022, the number of Dreamers eligible to apply would be locked into place, not including those over the age of 15 who had not yet applied. The commenter said that this would mean that the past 14 years of Dreamers, many of whom would be entering high school in the coming year, would not be eligible and would have no career prospects, which the commenter said would go against the purpose of DACA.
A joint submission expressed support for a continuous presence date 5 years prior to publication of the final rule that would be updated annually. Another commenter suggested that the continuous presence date should be revised to 5 years prior to when a requestor is first eligible for DACA.
Another commenter reflected this view, also stating that the rule should provide that moving forward, the President should review this requirement every 2 years to determine if it should be further extended. Another commenter wrote that DHS should require no more than 3 years of continuous residence for DACA requestors.
Multiple commenters said that DHS should establish a rolling continuing presence requirement. Some commenters said that there should be a rolling date instead of moving the June 15, 2007 date forward, specifically suggesting a 5-year continuous presence from the date of the filing of the request for DACA consideration, which the commenter said would allow DHS the ability to make case-by-case determinations about its enforcement priorities as it relates to this population well into the future. Commenters said that this would expand DACA to populations of noncitizens who, but for their date of entry, would meet the criteria for DACA, and one remarked that it would reduce the burden of gathering 14 years of evidence of continuous residence. Another wrote that this suggestion would focus eligibility on those with significant ties to the United States, would not require routine regulatory updates, and would preserve the disincentive to immigrate to attain DACA protections.
Some commenters wrote that DHS should remove the requirement for continuous presence prior to a certain date, and instead require continuous presence prior to a certain age, as this would expand protection to undocumented youth. Similarly, a commenter stated that USCIS should eliminate the date requirement for continuous residence, and instead require that a person has lived in the United States before turning 18. The commenter stated that this would allow those originally left out of the policy to request DACA, while easing the burden on requestors who lack 14 years of continuous residence documentation. Another commenter wrote that the continuous residence requirement should be removed from the rule as long as applicants meet age and uninterrupted residence requirements.
DHS also disagrees that retaining the continuous presence requirement for DACA conflicts with recent enforcement policy, including the September 30, 2021, DHS Guidelines for the Enforcement of Civil Immigration Law (“Enforcement Guidelines”), which are currently not in effect.
Other commenters stated that the continuous residence requirement should be satisfied for the relevant year if a requestor submits one document demonstrating residency during that particular year; or for multiple years if a requestor submits one document covering multiple years in the continuous residency period. Similarly, other commenters said that DHS should clarify that: (1) there is no minimum number of documents that a DACA requestor must provide per year to demonstrate continuous residence; and (2) agency adjudicators must draw reasonable inferences from the totality of the evidence of residence a requestor provides, including presuming residence for a reasonable period of time on the basis of point-in-time evidence that the requestor resided in the United States on a particular date. For example, in some cases a single document (such as a tax filing or lease) should suffice as evidence of residence for an entire year. In other cases, the requestor may show continuous residence over the course of a year by producing three or four point-in-time documents such as date-stamped photos or records of calls or purchases.
The commenter further stated that DHS should adopt a standard of accepting “any credible evidence” of a requestor's continuous residence. This standard of proof applies in other immigration contexts where, the commenter wrote, as in the DACA policy, requestors or applicants may experience significant difficulty obtaining primary or secondary evidence. Examples of documents that the commenter said should qualify as “credible evidence” include tax returns or tax transcripts (which, according to the commenter, should establish a full year of presence), a date-stamped photo of the requestor at a recognizable location in the United States, credit or debit card statements showing purchases made in the United States, insurance policies, vehicle registrations, and cell phone records showing calls placed from the United States. Another commenter also said that USCIS should adopt a “credible evidence” standard for the various forms of evidence that are allowed to show continuous residence, including primary sources like school and work records, as well as
One commenter stated that the proposed rule is vague as to how much evidence requestors need to supply to prove continuous residence and added that the requirement that requestors provide as much documentation as “reasonably possible” is unclear. The commenter wrote that this vagueness has resulted in advocacy groups creating their own documentation requirement guidance with varying standards to better inform requestors. Another commenter stated that the requirements for documentation of continuous presence should be relaxed during the COVID-19 pandemic, writing that DACA requestors may have difficulty producing documentation from this period.
Other commenters agreed that the use of affidavits should be acceptable evidence of the start of the continuous residence period for this population, but added that the use of affidavits should not be limited to just those who were very young at the time of entry. One commenter said expanding the use of affidavits is especially necessary if DHS retains the continuous residence requirement as proposed in the NPRM, as it would be difficult for requestors to demonstrate over 14 years of evidence for continuous presence. Similarly, another commenter said that other requestors, not just those who were very young at the time of entry, would face challenges in providing documentation.
While DHS appreciates commenters' requests to further extend this flexibility beyond new initial requestors who arrived as very young children, as noted above, DHS will continue to consider affidavits to support evidence that the requestor meets the continuous residence requirement if there is a gap in documentation for the requisite periods and primary and secondary evidence is not available.
Multiple commenters said that the rule should advance the date for physical presence from June 15, 2012, to the date the final rule is implemented. A commenter similarly suggested advancing the date of physical presence to the date of final rule promulgation. Relatedly, another commenter recommended that the date should be advanced to a time closer to when individuals submit requests and recommended a time period of 5 years from the date the rule is published or implemented. A commenter recommended advancing the date for physical presence to at least 5 years prior to submitting a request.
Another commenter recommended replacing the June 15, 2012, date with a flexible standard that would expand access to those individuals who otherwise would qualify for DACA. The commenter stated that this recommendation would align with the enforcement priorities set by the Secretary on September 30, 2021. A commenter suggested that a rolling date approach and linking the requirement dates only to the date of the request would reduce significant documentation burden on requestors and increase consistency with the Napolitano Memorandum.
Several commenters recommended that DHS advance the physical presence requirement to January 1, 2021, which matches the date proposed in H.R. 6, the American Dream and Promise Act of 2021. Many of these commenters stated that DHS has not updated the physical presence date in 9 years, and there is nothing that prevents DHS from moving the date in recognition that there are many Dreamers who arrived since the original physical presence date who are otherwise eligible for DACA. The commenter said that most individuals who would benefit would not be enforcement priorities, and enabling these Dreamers to access higher education and employment authorization through DACA would help them contribute to their communities and would be in line with the intent of the Napolitano Memorandum.
Similarly, a commenter suggested a revised date of January 20, 2021, stating that prescribing a date is at the discretion of USCIS and the rule should be more inclusive. Other commenters recommended updating the date to January 21, 2021, and another suggested updating the date to June 15, 2020. One commenter stated that if the requirement for physical presence is to be retained, the date should be based on the age of the requestor when they immigrated to the United States, rather than an arbitrary date from a policy memorandum.
A few commenters stated that the requirement of physical presence on June 15, 2012, should be eliminated, but the requirement of physical presence at the time of filing of the DACA request should be retained. One of these commenters said that this would ensure that DACA remains available only to individuals currently in the United States.
A commenter suggested that DHS grant deferred action and extend eligibility for a work permit to individuals who arrived after June 15, 2012, but meet all other eligibility criteria and commit to teaching or other public service. Given the teacher shortage and the need to diversify the teaching profession, the commenter asked that consideration be given to
Many commenters said that the exclusion of Documented Dreamers is unjust to children brought here lawfully by their parents and with lawful status (
Citing sources, several companies stated that many Documented Dreamers follow in the footsteps of their parents and are leaders in STEM fields, only to age out of status at age 21. The commenters said this situation is untenable for these children and their employees on high-skilled visas who face the prospect of separation from family members if their child ages out before they receive a green card. Other commenters stated that the proposed criterion would result in the loss of valuable talent and potentially significant contributions to the national economy by children of visa holders that age out. The commenters also said this issue hinders U.S. companies' ability to retain highly skilled workers and prevents the United States from competing in the global economy, citing a source indicating the net economic cost of losing Documented Dreamers is over $30 billion.
Another commenter asked DHS to update this criterion to allow individuals who had lawful status in the United States on June 15, 2012, but subsequently lost such status by the time of their request, to qualify for DACA. The commenter said that this update could be accomplished by changing the criterion to read: “had no lawful status at the time of filing of the request for DACA.” The commenter further remarked that Documented Dreamers have been raised in the United States, went to school here, graduated from the U.S. education system, and have gone on to become productive members of our society, contributing greatly to the national economy and communities.
Other commenters supported the codification of longstanding standards for establishing when an individual is “currently . . . enrolled in school” for purposes of the threshold criteria as proposed at 8 CFR 236.22(b)(5). The commenter stated that doing so would offer additional stability to DACA requestors as they consider their educational options and assess the consequences of those decisions for obtaining DACA.
As proposed in the NPRM preamble, and in accordance with longstanding DHS policy, to be considered enrolled in school for the purposes of new 8 CFR 236.22(b)(5), the DACA requestor must be enrolled in one of the following as of the date of the request:
• A public, private, or charter elementary school, junior high or middle school, high school, secondary school, alternative program, or homeschool program that meets State requirements;
• an education, literacy, or career training program (including vocational training) that has a purpose of improving literacy, mathematics, or English, or is designed to lead to placement in postsecondary education, job training, or employment and where the requestor is working toward such placement; or
• an education program assisting students either in obtaining a regular high school diploma or its recognized equivalent under State law (including a certificate of completion, certificate of attendance, or alternate award), or in passing a GED exam or other State-authorized exam (
Such education, literacy, or career training programs (including vocational training), or education programs assisting students in obtaining a regular high school diploma or its recognized equivalent under State law, or in passing a GED exam or other State-authorized exam in the United States, include programs funded, in whole or in part, by Federal, State, county, or municipal grants, or administered by nonprofit organizations. Under longstanding policy, which DHS currently plans to maintain (but could revise to the extent consistent with law at a future date) programs funded by other sources would qualify if they are programs of demonstrated effectiveness.
As noted above, DHS is also codifying the longstanding policy as proposed in the NPRM that a DACA requestor also can meet the educational guideline if they have graduated from high school or received a GED.
Finally, DHS also is codifying the longstanding policy as proposed in the NPRM that a DACA requestor may meet the educational guideline if they are an honorably discharged veteran (including honorably discharged reservists) of the Coast Guard or Armed Forces of the United States. As has been longstanding policy and as discussed in the NPRM preamble, current or ongoing service in the Coast Guard or Armed Forces of the United States will not, however, qualify under this component of the guideline, although such service may, in some instances, qualify noncitizens for other forms of enforcement discretion or for lawful immigration status.
Another commenter opposed the education criteria that DACA recipients graduate high school and stated that the education requirements are unnecessarily stringent. The commenter asked why—if an individual has not been eliminated from disqualification due to any other criteria—their ability to pass the 12th grade would make an impact on their qualification.
DHS also disagrees that the education criteria is unsupported by the foundational principles undergirding the creation of the DACA policy. As the Napolitano Memorandum highlights, this policy was intended to defer removal for “productive young people” who have “contributed to our country in significant ways.”
In response to one commenter's request to address what constitutes “demonstrated effectiveness” for alternative education programs that are not publicly funded, DHS notes that it has provided subregulatory guidance on its website explaining that when looking at demonstrated effectiveness, USCIS reviews:
• the duration of the program's existence;
• the program's track record in assisting students in obtaining a GED, or a recognized equivalent certificate;
• receipt of awards or special achievement or recognition that indicate the program's overall quality; and/or
• any other information indicating the program's overall quality.
Some commenters also recommended adding an exemption to the educational
DHS also recognizes that there may be circumstances beyond a requestor's control that may impede their ability to participate in or complete certain educational programs, and for that reason, DHS intentionally provided a variety of options for meeting this threshold guideline.
It is DHS's position that participation in or graduation from educational programs is beneficial to requestors and to the community writ large. As stated elsewhere in this rule, many DACA recipients have gone on to continue their studies at post-secondary and professional levels, and some have become doctors, lawyers, nurses, teachers, or engineers.
DHS acknowledges commenters' correct assertion that DHS does not currently require requestors to affirmatively provide evidence of their continued participation in educational programs upon seeking renewal of DACA. Once the threshold educational guideline is met by evidence provided for adjudication of the initial request, DHS focuses its renewal adjudications on critical issues such as whether the individual continues to meet the criminality, public safety, national security, and continuous residence guidelines.
One commenter stated that DHS failed to elaborate on why it allows convicted criminals to obtain DACA, whereas law-abiding prospective immigrants are not considered for deferred action and employment authorization, saying that existing data do not support that officers exercise discretion in granting DACA. Another commenter said that DHS failed to conduct meaningful studies on crimes DACA recipients have committed and their negative impacts on U.S. society or on crime victims, nor did DHS consider any measures to enhance national security, such as banning all persons with any criminal records from receiving DACA. The commenter went on to cite data indicating that more than 10 percent of the approved DACA recipients have at least one arrest, which the commenter said was not acknowledged in the rule. This commenter questioned how much discretion the adjudicating officer has, stating that it is unimaginable that someone who has been accused of crimes such as murder or assault could receive favorable discretion.
A commenter expressed concern over the use of vague language to disqualify individuals who pose a threat to national security or public safety, stating that this abstract language provides no standard or guidance as to how an individual can prove by a preponderance of the evidence that they meet this requirement. Further, the
Multiple commenters opposed DHS requiring or requesting juvenile records as part of the DACA adjudication process, stating that requiring such records is a breach of confidentiality for juveniles and may be illegal in some States, such as California. The commenter recommended that DHS refrain from requesting juvenile records as a nationwide policy to ensure a consistent and fair process across all States.
DHS acknowledges one commenter's reference to the November 2019 USCIS report “DACA Requestors with an IDENT Response,”
DHS acknowledges a commenter's view that whether someone poses a threat to national security or public safety is vague, but disagrees with the assertion that this may lead to discriminatory application or that officers will use this provision to exclude individuals for dishonorable or politically motivated aims. Determining whether someone poses a threat to national security or public safety is at the heart of DHS's mission, and Congress has directed the Secretary to prioritize national security, public safety, and border security. These concepts are longstanding and familiar to officers based on both experience and training, and are incorporated into DHS's enforcement priorities, as reflected in the rule.
DHS further disagrees with a commenter's assertion that existing data do not support the conclusion that officers should exercise discretion in adjudicating DACA requests. The DACA policy has historically included threshold discretionary criteria that USCIS assesses on a case-by-case basis as a review of the totality of circumstances. The assessment of whether a requestor meets these criteria itself entails the exercise of discretion by adjudicators—such as whether the requestor meets the criminal history, public safety, and national security criteria or whether they meet the continuous residence criterion, and additionally, even when a requestor meets all threshold criteria, USCIS adjudicators have had (and will continue to have) discretion to determine that in the totality of circumstances, a favorable exercise of discretion is nonetheless not warranted. Thus, USCIS data on DACA denials is itself an indication that officers exercise discretion in adjudicating DACA requests. USCIS data through December 31, 2021, reflects that USCIS has denied 107,245 DACA requests since the policy was implemented.
With respect to juvenile delinquency records, as explained elsewhere in this rule, USCIS does not consider a juvenile delinquency determination a conviction for immigration purposes, consistent with longstanding DACA policy and Board of Immigration Appeals (BIA) precedent. Also consistent with longstanding DACA policy, USCIS does not consider juvenile delinquency adjudications as automatically disqualifying for DACA. If a requestor cannot provide the record because it is sealed or because State law prohibits even the individual to whom the record relates (
Commenters who oppose the criminal conviction criteria stated that they are arbitrary and discriminatory; unjustly transfer the racial inequities of the criminal legal system into the administration of DACA in light of the long history of racial disparities in the U.S. criminal legal system; unfairly exclude communities who already are criminalized, surveilled, and facing discrimination; impose a “double punishment” on largely Black, Brown, and Indigenous immigrants who already have served their full sentences and complied with consequences; ignore the disparities in the criminal legal system and the over-policing and over-prosecution of people, particularly youths, in communities of color; and do not sufficiently take into account the impact on children, as children whose parents or caregivers would be ineligible could experience the harms of family separation through detention or deportation.
One commenter noted that no other area has changed as significantly since 2012 as social perceptions of the criminal legal system, concluding that the rule's exclusions for criminal history are fundamentally incompatible with this reform movement. A legal services provider shared anecdotal examples of how the criminal bars disproportionately affected its clients. Another commenter stated that removing the criminal bars would align with the dual intentions of DACA—to preserve DHS resources and provide relief to individuals brought to the United States as children—because it would provide relief to a broader population and lead to greater stability for more families, more opportunities to pursue education or careers, and increased tax revenue. The commenter further noted that removing the criminal bars would acknowledge the capability of rehabilitation.
Commenters said that the criminal framework within DACA includes a unique system of criminal bars, separate from the grounds of inadmissibility and deportability, that is used to unfairly target certain members of the DACA population, by singling out certain contact with the criminal legal system based on the type of offense or conduct, and that does not account for differences in sentencing or severity of punishment across different localities. Commenters stated that this encourages officers to reach beyond the criminal legal system's disposition and form their own judgment without the benefit of due process.
Some commenters recommended eliminating certain per se criminal bars, including minor traffic offenses, driving under the influence, 8 U.S.C. 1325 (improper entry) and 1326 (reentry of removed individuals), and offenses involving marijuana or related paraphernalia, in light of the decriminalization of marijuana.
Commenters stated that a conviction does not necessarily indicate whether an individual poses a threat to persons or property, or otherwise does not warrant deferred action. The commenter further stated a conviction is an unreliable predictor of future danger, and is an unreliable indicator of past criminal conduct because of disparate policing practices and the significant number of people who may plead guilty to a crime for a number of reasons. The commenter stated that by adopting categorical criminal bars, the agency prevents itself from considering mitigating circumstances or humanitarian concerns.
One commenter stated that individualized consideration for those few exceptional cases in which DHS has an objectively reasonable, particularized belief that criminal history is currently relevant should account for differences in sentencing or severity of punishment across different localities and provide an opportunity for the requestor to respond to and explain the information. The commenter further noted that the rule does not require most sentences described to be actually served and fails to cut off consideration of past conduct based on the passage of time since the conviction. Another commenter also recommended that the conviction definitions consider actual time served rather than potential sentences imposed.
One commenter stated that when a conviction occurred should limit exclusions, reasoning that no one should be defined solely by their long-past actions. The commenter recommended considering actual sentences served rather than the potential sentences captured by the felony and misdemeanor conviction definitions in order to reflect the courts' assessments of offense severity.
Despite the limitations and imperfections of the criminal legal system, criminal convictions rendered under Federal and State laws often carry immigration consequences. It is therefore consistent with immigration law generally for DHS to take convictions into consideration when determining whether to favorably exercise its enforcement discretion to defer removal action. It is likewise consistent with Federal law definitions of felonies and misdemeanors for DHS to classify offenses for DACA purposes based on the potential sentence, rather than time served. DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, it remains appropriate for USCIS to take into consideration a requestor's criminal convictions. As
The criminal criteria reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. While the criteria serve as important benchmarks for consideration of DACA, they do not prevent or replace a case-by-case weighing of all relevant factors by USCIS adjudicators. Moreover, as explained in the proposed rule, DHS seeks to retain the threshold criteria of the DACA policy as applied by USCIS since 2012 in part due to recognition of the significant reliance interests in the continued existence of the DACA policy of individuals who previously have received DACA grants, and those similarly situated who have not yet requested DACA, as well as their families, employers, schools, and communities. DHS determined that the best approach to preserving and fortifying DACA to ensure the continued existence of the policy to is to codify the existing threshold criteria. Accordingly, DHS believes the criminal criteria as proposed, and as implemented for 10 years, enable USCIS to identify more readily those who are likely to be a low priority based on their positive equities and successfully advance DHS's important enforcement mission.
Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6) as a result of these comments.
A few commenters stated that a program rooted in a case-by-case exercise of discretion should not categorically exclude a class of individuals without providing them an opportunity to present their equities to an adjudicator who can weigh the totality of the circumstances. Other commenters also noted concern that barring whole categories of individuals imports the biases of the criminal legal system into immigration decision making and unfairly targets portions of the population who are already targets of discriminatory policing practices. Some commenters said that DHS should use its authority to grant extraordinary circumstances waivers in cases of DACA requestors with felony convictions to avoid the unjust, disproportionate impact of the felony conviction bar on communities of color and LGBTQ DACA-eligible individuals.
Multiple commenters also noted that the existing DACA policy allows a waiver of the criminal exclusions due to “exceptional circumstances,” but stated that it is unclear what evidence a requestor should submit to establish exceptional circumstances, nor is it clear how adjudicators determine if the standard is met. One commenter urged DHS to codify and expand the availability of this exception for convictions from the existing DACA policy.
Several commenters said that DACA-eligible youth have developed deep ties to family and community in the United States, deserve the chance to rehabilitate and contribute, and should not suffer further consequences if they have successfully completed the terms of any sentence resulting from a criminal conviction. A few commenters also stated that this approach would be in line with the administration's current enforcement priorities, which lists how long ago the conviction occurred as one of the factors in deciding whether to exercise prosecutorial discretion.
One commenter stated that this change to the rule is necessary when Southeast Asian immigrant and refugee communities have a long history of being over-policed and racially profiled, and to prevent further repercussions of racial inequities and injustices in the criminal legal system that disproportionately impact Black and Indigenous communities and other people of color.
Despite the limitations and imperfections of the criminal legal system, criminal convictions rendered under Federal and State laws often carry immigration consequences. It is therefore consistent with immigration law generally for DHS to take convictions into consideration when determining whether to favorably exercise its enforcement discretion to defer removal action. DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, in the exercise of discretion, it remains appropriate for USCIS to take into consideration convictions even if they occurred more than 5 or 10 years in the past. The criminal criteria reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. As explained in the proposed rule and elsewhere in this rule, DHS seeks to retain the threshold criteria of the DACA policy as applied by USCIS since 2012 in part due to recognition of the significant reliance interests in the continued existence of the DACA policy of individuals who previously have received DACA grants, and those similarly situated who have not yet requested DACA, and their families, employers, schools, and communities. Accordingly, DHS believes the criminal criteria as proposed, and as implemented for 10 years, enable USCIS to identify more readily those who are likely to be a low priority based on their positive equities and successfully advance DHS's important enforcement mission. Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6) as a result of these comments.
Commenters stated that expungements were available for similar programs such as the Special Agricultural Worker and other legalization programs of the 1980s and are included in legislation currently before Congress. They noted recognizing the validity of expungements is critical to meeting the intent of DACA and giving effect to important safeguards of the criminal legal system that recognize the capacity for rehabilitation of impacted individuals and the special vulnerabilities of youth and counter the impact of policing in our communities. One commenter stated that expunged, sealed, or otherwise vacated records are a powerful indicator of change in an individual. One commenter noted that many DACA recipients are Black, Latinx, and/or other people of color who come from communities harmed by a history of racial injustice and a deeply flawed law enforcement system.
Multiple commenters stated that considering expunged convictions and juvenile delinquency adjudications as disqualifying convictions would be a damaging departure from longstanding DACA policy that would result in current DACA recipients being unable to renew. Many stated that, at a minimum, the rule should codify existing DACA policy, which provides that expunged convictions and juvenile delinquency determinations do not presumptively bar an applicant from receiving DACA and are considered on a case-by-case basis to determine whether, under the particular circumstances, a favorable exercise of prosecutorial discretion is warranted.
However, multiple commenters opposed the case-by-case review of expunged convictions and juvenile delinquency adjudications as provided by current policy. Commenters stated that it leads to differing decisions for similarly situated requestors based on the adjudicating officer, undermining the finality of a State or local judicial decision to set aside and expunge an individual's criminal conviction, noting that the very purpose of expungement is to eliminate collateral consequences arising from the existence of the conviction on an individual's record. Commenters also noted that it wastes valuable agency time, as State and local authorities already examined the facts of the case and concluded that the conviction merited expungement, and almost all States have expungement mechanisms that do not allow for the expungement of felonies.
Commenters cited academic research demonstrating that individuals with expunged convictions present a low public safety risk and, thus, should be a low priority for removal, like other members of the DACA-eligible population. Additionally, a commenter said that legislative and policy changes providing for expungement—including automatic expungement—reflect an increased desire to create second-chance
Commenters also noted that the immigration system recognizes the special position of juveniles in immigration court proceedings, where a juvenile delinquency adjudication is not considered to be a criminal conviction for immigration purposes and does not trigger adverse immigration consequences that flow from a conviction, which has been repeatedly affirmed by the BIA. Therefore, commenters state that the same should be true regarding DACA. One said that no conduct committed when under 18 should exclude someone from receiving DACA and that juvenile convictions should not be considered a negative factor, noting the inconsistency of saying that children lacked intent to violate the law in coming to the United States but then holding them responsible as a collateral consequence for other conduct while adolescents.
However, DHS disagrees with commenters that case-by-case consideration of such criminal history should be eliminated and that the rule should prohibit entirely any consideration of expunged convictions or juvenile delinquency adjudications. By conducting an individual, case-by-case assessment that takes into consideration the nature and severity of the underlying conduct, DHS is giving effect to the State or local judicial determination to erase the conviction itself from the individual's criminal record, while still allowing DHS to consider the underlying facts to make a proper determination as to whether a requestor poses a threat to public safety or national security and whether the favorable exercise of prosecutorial discretion is otherwise warranted. While DHS recognizes that in other immigration contexts, expungements are generally considered convictions for immigration purposes with few exceptions, providing for case-by-case consideration of the underlying nature and severity of the criminal offense rather than categorically excluding requestors with otherwise disqualifying convictions that were expunged is consistent with the nature of DACA as an exercise of enforcement discretion—as distinct from an adjudication involving statutory eligibility requirements plus the exercise of adjudicative discretion—and reflects a balancing of the use of guidelines and discretion, which serves to promote consistency and avoid arbitrariness in DACA determinations.
Likewise, in the case of juvenile delinquency adjudications, DHS agrees that the rule should not depart from longstanding DACA policy and BIA precedent establishing that a juvenile delinquency determination is not a conviction for immigration purposes.
In this final rule, DHS is revising 8 CFR 236.22(b)(6) to clarify that expunged convictions and juvenile delinquency adjudications are not considered automatically disqualifying under the criminal history criteria. However, consistent with longstanding policy, expunged convictions and juvenile delinquency adjudications will still be assessed on a case-by-case basis to determine whether the individual presents a national security or public safety concern and otherwise warrants a favorable exercise of discretion.
Commenters also stated that the use of an arbitrary length of sentence imposed in determining a particular misdemeanor is disqualifying is inappropriate and arbitrary, and will further prevailing trends of inequality in the justice system, as well as disparate treatment based on the applicant's jurisdiction and its sentencing scheme. One noted that this provision undervalues a federalist system in which a misdemeanor offense in one system can be considered a felony in another, and sentencing varies by locality.
One commenter stated that the misdemeanor definition used for the single-conviction and three-conviction bars include offenses that are considered non-criminal “violations” under New York law. The commenter noted that a violation of disorderly conduct under New York law is a violation, not a crime, but is a common disposition in criminal courts, often for minor alleged conduct, and pleas to this violation are often the release valve for the criminal legal system, yet regularly lead to ineligibility for DACA. The commenter stated that maintaining this bar will force people to choose between quickly and efficiently disposing of their case and defending their innocence through often prolonged and unnecessary litigation to ensure they do not face a bar to obtaining DACA. The commenter additionally noted the criminal bars would disparately impact those who are routinely criminalized because of disparate policing practices, including based on race, sexual orientation, and gender, or in connection with experiences of trafficking and domestic violence, stating that DACA recipients often come from vulnerable communities that may be more susceptible to low-level offenses. Another commenter stated that disqualifying individuals based on
Multiple commenters noted appreciation of the clarified definition of a “significant misdemeanor,” but nonetheless opposed the criminal bars, stating that they add to the harmful rhetoric of immigrants as criminals. Some of these commenters expressed concern that a “significant misdemeanor” offense from many years ago may act as a bar to DACA, despite positive discretionary factors.
Many commenters said that individuals should not be barred from DACA by any single offense or offenses where a sentence of less than 90 days was imposed. The commenters stated that adjudicators have applied the misdemeanor bars inconsistently in the DACA context, State criminal legal systems present a wide array of different treatment for different offenses, and regional differences in policing compound the impact of disparate treatment for individuals who otherwise would be eligible for DACA. By adopting this measure, the commenters stated that the rule would increase consistency in DACA adjudications and ensure that individuals are not disqualified for offenses for which a lesser sentence was imposed.
One commenter said that TPS has a limit of two misdemeanors, and this rule should do the same.
Despite the limitations and imperfections of the criminal legal system, criminal convictions rendered under Federal and State law often carry immigration consequences. It is therefore consistent with immigration law generally for DHS to take convictions, including misdemeanors, into consideration when determining whether to favorably exercise its enforcement discretion to defer removal action. DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, it remains appropriate for USCIS to take into consideration a requestor's misdemeanor convictions. The criminal criteria reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. In addition to the merits of this targeted and balanced approach, and as explained in the proposed rule, DHS has decided to codify the threshold criteria of the DACA policy as applied by USCIS since 2012 in part due to recognition of the significant reliance interests in the continued existence of the DACA policy of individuals who previously have received DACA grants, and those similarly situated who have not yet requested DACA, as well as their families, employers, schools, and communities.
DHS acknowledges the commenter's statement that New York “violations” are “non-criminal” and often lead to denial of DACA requests. DHS further acknowledges that New York's penal code does not classify violations, such as disorderly conduct, as “crimes” but rather labels them “petty offenses.”
Another commenter suggested that DHS clarify its DUI restrictions under the proposed rule. The commenter stated that DUI charges should be reviewed on a case-by-case basis, or at a minimum the rule should provide that a DUI with no aggravating factors is an exception, because a DUI can have varying degrees of threat and culpability. The requestor also recommended including an exception for requestors under age 21 with a DUI conviction, absent aggravating factors on a case-by-case basis. Another commenter acknowledged that violent or drug crimes are a concern, but similarly stated that a single DUI should not be a bar to DACA and it is not an inadmissibility ground in other programs. A different commenter asked why the bar is so high for an undocumented person just to obtain DACA protections, when there are
Multiple commenters stated that DUIs have not been consistently or fairly adjudicated in DACA requests, which has led to erroneous denials and requests for evidence that are highly dependent upon the State in which the applicant resides. For example, the commenters said that: (1) some State laws criminalize sitting in a vehicle while inebriated, without attempting to operate it; (2) other States have statutes that criminalize offenses considered less than a “regular” DUI but that still have some element of impairment, or simply include the word “impairment” in the title, and these have been counted as DUI bars to DACA; and (3) yet other State laws do not require any finding of impairment of the ability to drive safely due to consumption of a substance, and some of these laws have been wrongly counted as a DUI and an automatic bar to DACA. The commenters concluded that because of this inconsistency, the rule should eliminate DUIs from the list of specific misdemeanors that would automatically bar someone from qualifying for DACA.
A commenter stated that, if DHS must continue to include DUIs in the list of enumerated misdemeanors, at minimum, it should clearly define that term to ensure consistent adjudication throughout the country. Because of the diverse State-law definitions of “DUI,” the commenter wrote, requestors are erroneously denied due to a misdemeanor conviction that may constitute a DUI in one State but not another. The commenter said that a consistent definition would allow requestors to assess their eligibility and adequately prepare their requests with a full understanding of the consequences of their criminal convictions.
One commenter stated that a DUI is inappropriate as a categorically elevated misdemeanor given the array of circumstances covered and differential outcomes based on access to counsel and other means that depend on privilege and racial hierarchies. If DUI is included, the commenter suggested that elements of the offense should be defined to require either a blood alcohol content finding of 0.08 or higher or a finding of impaired ability to drive safely, noting that ICE has used such a definition. The commenter also recommended defining “impairment” as “to a degree that renders the operator incapable of safe operation.”
A legal services provider stated that, despite having paid fees, attended court hearings, and participated in rehabilitation classes, several of its clients have either lost DACA protection or been ineligible to apply. The commenter said that the uncertainty and upheaval to the lives of these individuals is immeasurable and further stated that individuals who seek to request DACA, and were otherwise eligible but for a single DUI conviction, will never have the opportunity to “rise out of the shadows” and take a path of greater success.
One commenter said that the DUI rule should be the same for DACA as it is for applying for citizenship to leave room for mistakes: if you have one in the last 5 years or two in the last 10 years, you cannot apply.
DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, it remains appropriate for USCIS to consider a single DUI conviction disqualifying for DACA. The criminal criteria reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. As explained in the proposed rule and elsewhere in this section, DHS seeks to retain the threshold criteria of the DACA policy as applied by USCIS since 2012. DHS determined that the best approach to preserving and fortifying DACA, as directed by the Biden Memorandum, for these recipients, future similarly situated requestors, as well as their families, employers, schools, and communities, who have significant reliance interests in the continued existence of the DACA policy is to codify the existing threshold criteria.
Accordingly, DHS believes the criminal criteria as proposed, and as implemented for 10 years, enable USCIS to identify more readily those who are likely to be a low priority based on their positive equities and successfully advance DHS's important enforcement mission, and who are likely to continue to be a low priority under DHS's general enforcement priorities. DHS agrees with commenters that a clear definition of a DUI conviction for DACA purposes is valuable to promoting consistent adjudications, and longstanding internal guidance has provided such a definition. However, DHS believes that such a definition is appropriately provided in subregulatory guidance to allow DHS the necessary flexibility to make revisions if changes in State laws or other circumstances make such adjustments necessary and appropriate. Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6) as a result of these comments.
Multiple commenters specifically recommended that DHS use the definition of a “crime of domestic violence” from INA sec. 237(a)(2)(E)(i), 8 U.S.C. 1227(a)(2)(E)(i), which requires conviction of a “crime of violence” (as defined in 18 U.S.C. 16(a)) in a qualifying domestic situation. One of the commenters said that definition “provides a relevant waiver for survivors of domestic violence who have a conviction but were not the primary perpetrators of violence in their relationships.” Another of the commenters added that the new DHS enforcement priorities state that “a categorical determination that a domestic violence offense compels apprehension and removal could make victims of domestic violence more reluctant to report the offense conduct.” Several commenters noted the potential impact of the bar on survivors of
One commenter suggested DHS abandon the domestic violence conviction exclusion and instead adopt a totality of circumstances approach with a presumption that an individual with a misdemeanor conviction for domestic violence who was not physically incarcerated for over 30 days be considered prima facie eligible for DACA.
DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, it remains appropriate for USCIS to consider a single domestic violence conviction disqualifying for DACA. The criminal criteria reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. As discussed above, DHS does so in recognition that a central purpose of this rulemaking is to preserve and fortify DACA as directed by the President's memorandum, and modifications to the threshold criteria related to criminal history, public safety, and national security could invite additional challenges to the policy. DHS therefore does not believe that changing the threshold criteria best serves it purpose of preserving the policy for those DACA recipients and other similarly situated individuals who have not yet requested DACA, and their families, employers, schools, and communities, all of whom have significant reliance interests in the continued existence of the DACA policy. Accordingly, DHS believes the criminal criteria as proposed, and as implemented for 10 years, enable USCIS to identify more readily those who are likely to be a low priority based on their positive equities and successfully advance DHS's important enforcement mission. The DHS Enforcement Guidelines acknowledge that a categorical determination that domestic violence offenses compel apprehension and removal could make victims more reluctant to report offenses; however, this is provided as an example in the Enforcement Guidelines of how the broader public interest is material in deciding whether to take enforcement action in a particular case, noting the specific facts of the case should be determinative. As noted in the NPRM and elsewhere in this rule, the threshold DACA criteria and DHS's broader enforcement priorities may not always perfectly align, as DHS has determined that to best preserve and fortify DACA, it is beneficial to maintain the longstanding threshold criteria rather than to tie the criteria to the specific DHS enforcement priorities in place at a given time. Regardless, the approach to domestic violence convictions reflected in this rule is still generally consistent with the spirit of the DHS Enforcement Guidelines: while the threshold criteria serve as important benchmarks for consideration of DACA, they do not prevent or replace a case-by-case weighing of all relevant factors by USCIS adjudicators, just as the DHS Enforcement Guidelines emphasize case specific determinations. DHS agrees with commenters that a clear definition of a domestic violence conviction for DACA purposes is valuable to promoting consistent adjudications, and longstanding internal guidance has provided such a definition. However, DHS believes that such a definition is appropriately provided in subregulatory guidance to allow DHS the necessary flexibility to make revisions if changes in State laws or other circumstances make such adjustments necessary and appropriate. Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6) as a result of these comments.
Multiple commenters stated that minor traffic offenses should explicitly be excluded from consideration in a totality of circumstances analysis, in addition to being excluded from triggering misdemeanor or felony bars, but stated that where a traffic offense does involve serious bodily injury, USCIS should use a totality of circumstances analysis to determine if a favorable exercise of prosecutorial discretion is warranted. Commenters stated that undocumented individuals face disproportionate barriers to obtaining driver's licenses, which they said directly leads to higher instances of traffic-related offenses. Commenters also noted that police officers are more likely to stop drivers of color than white drivers and that consideration of racially disparate minor traffic offenses in a totality of circumstances analysis compounds the racist impact of such traffic stops on communities of color. One commenter stated that minor traffic offenses are irrelevant to the objectives of DACA or any applicant's fitness.
A commenter said that the proposed rule eliminates the “minor traffic offenses” exception that always has existed and that this change would be “fatal” to new applicants, as almost any young immigrant who has been here since 2007 has had three or more traffic tickets. The commenter stated that the preamble language about considering minor traffic offenses in the totality of circumstances contradicts the unambiguous and mandatory language of the proposed rule, and officials would be obliged to follow the rule. The commenter also said that this provision would result in unequal treatment of immigrants, depending on where they live and whether their State allows licenses for undocumented immigrants.
DHS maintains that for purposes of consideration under DACA and consistent with longstanding DACA policy, it remains appropriate for USCIS to consider a requestor's entire offense history along with other facts to determine whether, under the totality of circumstances, an individual warrants a favorable exercise of enforcement discretion. The criminal criteria, including the ability to consider an individual's entire offense history, reflect a targeted approach to considering public safety concerns, identifying convictions that do not support the favorable exercise of enforcement discretion, and balancing the positive equities of the requestor population as reflected in other threshold criteria. As explained above, DHS has determined that retaining the existing threshold criteria is the appropriate mechanism by which to preserve and fortify the DACA policy. In weighing the interests of preserving the policy to ensure its continued existence against altering the threshold criteria, DHS believes the criminal criteria as proposed, and as implemented for 10 years, enable USCIS to identify more readily those who are likely to be a low priority based on their positive equities and successfully advance DHS's important enforcement mission. DHS agrees with commenters that a clear definition of minor traffic offenses for DACA purposes is valuable to promoting consistent adjudications. However, upon consideration, DHS believes that such a definition is appropriately provided in subregulatory guidance to allow DHS the necessary flexibility to make revisions if changes in State laws or other circumstances make such adjustments necessary and appropriate. Accordingly, DHS will not make any revisions to 8 CFR 236.22(b)(6) as a result of these comments.
Some commenters recommended eliminating the age limits to include requestors who meet all other requirements. Many of these commenters described the age limits as arbitrary and stated that they unfairly bar individuals from requesting DACA based on their age when DACA was announced, which is no fault of their own. Other commenters said the age limits disregard the benefits of protection for requestors under 15 years old and the continued necessity of protection for individuals who were older when DACA first was implemented.
Some commenters who suggested removing the upper age limit reasoned that childhood arrivals excluded by this limit have been living in the United States for more than 15 years without any immigration relief, that the limit goes against equal protection and law, and that it divides families and prevents individuals who have resided in the United States for decades longer than DACA recipients from receiving protections. Other commenters said that eliminating the upper age limit would particularly benefit older noncitizens who are more likely to have U.S. citizen children, and that doing so also would benefit older adult learners. Other commenters said that removing this age cap would further DACA's goal by addressing an arbitrary date that excludes many otherwise eligible requestors and would allow people who already are not enforcement priorities to receive lawful status and work authorization. Some commenters stated that DHS previously attempted to remove this age cap in a 2014 memorandum that was rescinded following the 2016
Several commenters also urged DHS to remove the lower age limit, stating that parents want relief from deportation for their children as early as possible, and that opportunities for growth and development, such as school field trips, job opportunities, and driver's permits, arise before a child turns 15. Additionally, the commenters said that high school students pursuing a college education would benefit from having DACA and using their EAD and State identification card to prove their identity when taking college admission exams, and to be able to list a Social Security number on college applications. Likewise, some commenters who supported eliminating the lower age threshold stated that work authorization is important to youth in agricultural communities where the Fair Labor Standards Act allows children as young as age 12 to work in agriculture. Another commenter said the lower age cap leaves many young noncitizens with the fear of deportation, leading to poor mental health outcomes.
Some commenters stated that the age at time of request requirements impose undue barriers for requestors and should be revised. A couple of commenters suggested lowering the minimum age requirement for requestors and providing protections to children from removal until they are eligible to request DACA.
Other commenters discussed the exclusionary effects of the age restrictions and suggested that USCIS revise the age criterion to include noncitizens who were not above the age of 35 on June 15, 2012. Citing sources, one commenter discussed multiple benefits of raising the maximum age of requestors to 35, including a strengthened economy, less spending on enforcement, and improved access to healthcare for a greater number of immigrants. A commenter reasoned that not updating the outdated age eligibility criteria would have negative consequences on the health, well-being, and growth of undocumented individuals, their families, communities, and the economy. Other commenters stated that changing the dates and removing the age cap to expand eligibility would demonstrate to Congress the need for legislation to preserve and fortify DACA.
Another commenter suggested that work authorization be expanded to include recipients regardless of status to add additional security to the lives of recipients and their families.
A commenter stated that DACA has stricter requirements than does the process of adjustment of status or naturalization, which negatively impacts young people and their families. The commenter urged DHS to view DACA recipients as future U.S. citizens and, thus, ensure that the eligibility requirements are not stricter than those for adjustment of status or naturalization since strict requirements do not influence whether a DACA recipient ultimately will gain citizenship.
One commenter stated that it assumed an extension of time would be given to requestors who missed a qualification deadline during the time of the July 16, 2021 injunction.
A commenter said that the proposed rule fails to provide alternatives to its narrow and outdated coverage. Another commenter stated that it disagreed with the notion that DACA's coverage cannot be expanded due to the reliance interests of previous recipients of DACA and those similarly situated who have not yet requested DACA.
Another commenter stated that USCIS may make $310 less per DACA request for any number of requests, which could diminish the agency's budget by $34.9 million annually, or $384 million over the next 11 years. The commenter said that the proposed restructuring of the fees would make it nearly impossible for USCIS to meet its obligation for ensuring that the USCIS has enough capital to cover the total cost of full adjudication for each request considered, which is $332, and USCIS would recover only $85 of this potential cost from each request. The commenter remarked that, under the proposed fee restructuring, each request would recover $247 less than the potential cost of full adjudication, and that the proposed rule acknowledges that, under the current structure, USCIS would charge $93 million less than the estimated full cost of adjudication for every DACA request received annually. The commenter stated that the final rule should include evidence to justify the risks of the proposed rule for funding USCIS operations. The commenter further stated that estimating how many requestors would no longer apply for employment authorization under the proposed fee restructuring would allow for more accurate estimates of the total losses that USCIS would face. A commenter asked if the Government would be affected financially by the drastic reduction in the cost of DACA requests, or if the change would be negligible. Another commenter remarked that more research is needed to justify how restructuring fees may affect USCIS operations that rely on those fees for funding.
USCIS cost estimates may change over time. New information may be available, such as more recent receipts or adjudication hours. Estimates may use different assumptions. For example, the Supplemental Cost Methodology Document in the NPRM docket did not distinguish between initial and renewal DACA requests. However, the older USCIS cost estimate cited by a commenter relied on older information
USCIS is funded primarily by immigration and naturalization benefit request fees charged to applicants and petitioners and must balance the need to recover some of the costs of reviewing DACA requests with the humanitarian needs of the DACA requestor population. As discussed in the NPRM and in this rule, DHS proposed to eliminate the DACA biometrics fee, replace it with an $85 Form I-821D filing fee, and unbundle the Forms I-821D and I-765 as a mechanism to recover some costs of adjudicating these requests while providing an option that would reduce financial barriers to DACA requestors. However, as discussed Section II.C.2.c, after careful consideration of comments, DHS has made changes in the rule to codify the existing bundled form requirements, thus requiring requestors to concurrently file Form I-821D with associated $85 filing fee, Form I-765 with associated filing fee (currently set at $410), and Form I-765WS. DHS has determined this fee structure to be reasonable because it fully recovers adjudicatory costs. DHS has already determined, as explained in the NPRM and in the context of the unbundled filing process proposed, that it is in the
Commenters proposed a variety of approaches to expand fee waiver access to the DACA population. Some commenters suggested a “hardship waiver” for individuals under economic or employment difficulties, including challenges affording secondary education, especially with the lack of access to Federal and State tuition aid, or those who are forced to prioritize other costs, such as childcare. Other commenters recommended reduced fees for individuals not interested in work authorization, especially students; and fee waivers for employment authorization applications. A commenter suggested replacing fee exemptions before applications with regular fee waivers simultaneous to applications. A commenter suggested that DHS can allow the fee waiver by amending 8 CFR 106.3 to add a paragraph providing that DACA requestors may apply for a waiver of any fees for DACA and any associated filing. Another commenter reasoned that the hardship of a recurring fee for DACA renewal requestors is considered an emergent circumstance that allows for USCIS to authorize a fee waiver.
DHS recognizes that some DACA requestors face economic hardship that impacts their ability to pay the required fees, but notes that DACA, as an exercise of prosecutorial discretion that allows DHS to focus limited resources on higher priority cases, is not an immigration benefit or associated filing authorized for fee waiver under INA sec. 245(l)(7), 8 U.S.C. 1255(l)(7), and that it is appropriate for beneficiaries of this enforcement discretion to cover the cost of adjudication.
In the NPRM, USCIS estimated the full cost for processing Form I-821D using the agency's established cost methodology and the available parameters at the time of the review.
DHS estimates that making fee waivers available to DACA requestors for Form I-765 would result in a reduction of approximately $72,324,000 and $100,105,600 in fees paid in FY 2022 and 2023, respectively, from the current policy permitting only limited fee exemptions. DHS must carefully balance the interest of making DACA available to those who may meet the criteria with the need for adequate resources to process requests efficiently and effectively. A reduction in fees collected would either negatively impact processing times or require increased fee amounts paid by others to offset revenue diminished by waived fees. In weighing these important interests, and in line with President Biden's directive to preserve and fortify DACA, DHS has determined that maintaining the existing fee structure with limited fee exemptions strikes the appropriate balance. For these reasons, DHS declines to modify the rule to extend fee waivers for DACA and related work authorization requests.
A commenter suggested that DHS base fees on the requestor's age and income. Other commenters recommended establishing a family plan to ease the financial burden on families that must file separately for individual family members.
Commenters expressed concern that the proposed approach would lead to unnecessary and prolonged detention of DACA-eligible individuals. A commenter similarly opposed the approach stating it would lead to unnecessary detention, where the commenter stated that they had witnessed abuse, inadequate legal and medical services, unsanitary conditions, and lax COVID-19 protocols.
Several commenters expressed concern that DACA decisions should be made by USCIS and not be subject to separate action or decision by ICE. Commenters argued that providing
Several commenters opposed granting ICE veto power over DACA decisions. Commenters expressed concern about ICE's decision-making process for release from detention, stating that the process is notoriously arbitrary and disorganized and noting inconsistent decisions would block individuals from receiving DACA even if USCIS determines an applicant is eligible and merits a favorable exercise of discretion. Another commenter stated that ICE staff often fail to execute ICE's mandate, fail to review cases accurately, are unresponsive to counsel, and are not transparent or accountable in decision-making. Other commenters expressed concern that ICE or CBP could prevent renewal of a DACA grant keeping an individual detained, and cited examples of
A commenter noted that release from detention is often based on factors that do not bear on an individual's fitness for DACA, and that decisions about bonds are similarly arbitrary and subject to great variety across different regions of the United States. Several commenters stated their concern that ICE and CBP detention decisions may be based on noncitizens' contact with the criminal legal system that does not always lead to a disqualifying conviction, and permitting ICE or CBP to take DACA decisions away from USCIS would unfairly reproduce racial inequities associated with the criminal legal system (stating that many DACA recipients are Black, Latinx, or other people of color whose communities experience a high rate of policing).
DHS acknowledges the concerns expressed by commenters regarding release-from-detention policies and the potential impact of decisions by individual ICE officers. As originally envisioned by the Napolitano Memorandum, DACA is one portion of implementing the Department's overall enforcement strategies. The Napolitano Memorandum included guidelines for identifying low enforcement priority individuals for deferred action under what became the DACA policy, including those individuals in detention and removal proceedings, and envisioned individuals would self-identify as candidates for deferred action. Similarly, the Department's Enforcement Guidelines set out enforcement priorities and instruct enforcement agencies to exercise discretion as appropriate for individuals outside of those priorities. While all discretionary enforcement and adjudicatory decisions involve multiple decisions made by a single enforcement officer or adjudicator, DHS asserts that consistent policies, training, and review best address concerns of individual ICE officers “vetoing” otherwise DACA-eligible noncitizens. Additionally, DHS has set up a case review process for noncitizens to obtain expeditious review of enforcement actions, including decisions on detention.
DHS thanks commenters for highlighting concerns that differential policing of communities will affect detention decisions based on contact with the criminal justice system. DHS acknowledges that arrests and convictions are best understood in the totality of the circumstances.
DHS acknowledges the related concern that detention of a DACA recipient could prevent that individual from renewing a DACA grant. However, individuals with DACA are generally not subject to enforcement action absent a determination that enforcement discretion is no longer warranted, typically due to activity that would serve as a basis for termination of the DACA grant. Additionally, DHS encourages DACA recipients to file renewal requests within the recommended filing window to best avoid gaps between periods of deferred action under DACA.
DHS notes that the DACA policy serves important humanitarian aims, as do immigration benefit requests such as U and T nonimmigrant status, SIJ classification, and relief under VAWA; however, there are important distinctions between DACA—a policy to exercise prosecutorial discretion to defer removal of noncitizens who demonstrate they are a low enforcement priority—and those benefits that are designed to assist abused, neglected, or abandoned minors, and victims of crime, human trafficking, and domestic battery or extreme cruelty. DHS notes that, unlike for petitions for U nonimmigrant status, there is no annual cap on the number of DACA requests that may be approved, and as a result, requestors do not wait years for a final adjudication of their request. As a result, DHS has not found it necessary to create a prima facie or bona fide determination policy for DACA. DHS appreciates suggestions on managing removal proceedings over the course of the adjudication of a DACA request. Because the rule is not a joint DHS/DOJ rule, DHS cannot insert provisions binding EOIR, though it notes the suggestions as applied to ICE's Office of the Principal Legal Advisor. DHS appreciates the request to streamline processing by allowing USCIS to accept biometrics taken by ICE. USCIS is examining whether it has the legal authority and technical capability to submit to the Federal Bureau of Investigation biometrics collected by a criminal justice agency or from a non-criminal justice agency when the biometrics were collected for a different purpose from USCIS' purpose of use. DHS will continue to explore the feasibility of permitting USCIS to use biometrics collected by ICE for
Commenters recommended that the DACA grant period be extended beyond 2 years, with suggestions ranging from 3 to 10 years. Commenters stated that longer grant periods would result in less taxing administrative processes and judicial review of renewals and, consequently, reduced backlogs. Commenters also expressed concern surrounding the financial hardship DACA recipients face, stating that many recipients are from low-income families and cannot afford the renewal fee. A commenter advocating for longer validity periods stated that working families need and deserve stability and the ability to plan for the future, and that a 2-year validity period is too short to provide adequate assurances that it is worth the risk to submit a detailed, personal application to DHS. The commenter also noted that the short timeframe creates disincentives for employers looking to hire and train DACA recipients. Commenters cited studies indicating the benefits of extending DACA and EAD grants beyond 2 years, including cost and time savings for applicants, reduced administrative burdens for USCIS, and avoided consequences for recipients, employers, and the workforce upon loss of employment authorization. Other commenters similarly discussed the economic benefits of extending DACA and EAD grants beyond 2 years. Commenters stated that USCIS approves more than 98 percent of DACA renewal requests each year and extending the validity period would reduce the burden of biennial renewal requests, while supporting DHS's stated policy goal of prioritizing limited enforcement resources. The commenters further stated that the Department could make this extension without undermining its enforcement authority, as it would retain the discretion to revoke DACA at any time.
DHS must carefully balance the benefits of a longer validity period with the nature of deferred action as a discretionary, temporary exercise of prosecutorial discretion. In other contexts, DHS has provided deferred action for periods both greater than and less than 2 years. As DACA recipients do not have an underlying petition or application for nonimmigrant or immigrant status pending adjudication, DHS believes 2 years is an appropriate frequency for review and decision on whether to continue to favorably exercise discretion in the form of deferred action. DHS also has determined that codifying the longstanding 2-year validity period for deferred action best achieves President Biden's directive to preserve and fortify DACA. DHS appreciates that DACA recipients may risk either overlap or gaps in their DACA and EAD validity periods when renewing their requests and reiterates the importance of filing their renewal requests in accordance with guidance published on the USCIS website to mitigate these risks. Regarding a commenter's concern that 2 years is too short of a period of both deferred action and employment authorization to be worth the risk of submitting detailed, personal information to USCIS, DHS notes that this rule clarifies longstanding policy protecting information provided in DACA requests from disclosure to ICE and CBP for the purpose of immigration enforcement proceedings unless DHS initiates immigration enforcement proceedings against the requestor due to a criminal offense, fraud, a threat to national security, or public safety concerns.
Commenters recommended that the agency instead issue sequential approval validity dates for renewal requests. Some of these commenters stated that sequential grants, which they asserted were previously piloted, would allow DACA recipients to receive full2-year periods of deferred action rather than one overlapping into the next. Commenters stated this would allow recipients to avoid disruptions to their work or education and better plan for the future, while another commenter stated it would mitigate the punitive effect on recipients who file renewal requests early. Another commenter
A commenter recommended that USCIS provide an optional backdating of deferred action grants for requestors whose DACA expires and who later apply for initial or renewal of DACA. This, the commenter said, would prevent requestors from accruing unlawful presence during USCIS adjudication delays or other barriers to renewal.
Commenters opposed the proposed rule's exclusion of administrative appeals, reopening, or reconsideration stating that it violates USCIS' inherent authority to exercise discretion to review prior decisions, as Service Officers generally retain an inherent ability to review past decisions via motion or appeal, citing 8 CFR 103.5 as an example. Commenters also noted that the proposed rule would limit the
One group of commenters stated that incentivizing denied requestors to create and submit new materials rather than appealing or amending their prior requests burdens both USCIS and requestors because USCIS must reprocess and consider requests that are only marginally different from those it already considered, while requestors spend additional money on filing fees and try to ascertain and fix the error that led to the prior denial. The submission stated that allowing amendments to requests prior to denial would reduce workloads, as requestors could correct their forms that otherwise would impact their requests. They further stated that creating an appeal structure would not be procedurally difficult because such a structure already exists for appealing denials caused by administrative errors, and parallel structures already exist for most other immigration processes through the AAO. They stated that expanding the existing DACA appeals process to accommodate substantive appeals and allow amendments to correct requestor errors is not likely to be substantially difficult.
While DHS recognizes that refiling a DACA request after denial requires an expenditure of money, time, and effort for the DACA requestor, so too would filing a motion to reopen/reconsider or an administrative appeal to the AAO, if USCIS were to permit such motions or appeals. Individuals seeking reopening, reconsideration, or appeal of a benefit request must do so by filing a Form I-290B, Notice of Appeal or Motion with a statement and supporting evidence, and generally must pay a $675 fee.
DHS also disagrees with commenters who state that by not providing for administrative appeals or motions to reopen or reconsider, DHS is violating USCIS' inherent authority to exercise discretion to review prior decisions. The preamble to the proposed rule specifies that USCIS would still be permitted to reopen or reconsider a DACA approval or denial on its own initiative.
DHS further disagrees with commenters who state that the rule will undermine the deference attributed to USCIS when challenged in APA litigation and in any event, does not believe that the availability of deference to USCIS' decisions on DACA requests when challenged in litigation should determine how the final rule addresses the availability of appeals and reconsideration.
While DHS agrees with commenters that an existing appeal structure exists at the AAO for certain benefit requests, DHS disagrees with the cited criticism of the AAO and maintains that establishing an appeal process for DACA denials is inconsistent with the nature of deferred action as a temporary, favorable exercise of immigration enforcement discretion that gives some cases lower priority for enforcement action.
Accordingly, DHS is not making any changes to 8 CFR 236.23(c)(3) in response to public comments.
One commenter suggested that USCIS implement the third proposed alternative in the NPRM to specify the instances in which USCIS generally will issue a NOIT, with opportunity for the DACA recipient to respond before USCIS makes its final decision on DACA termination. Another expressed general agreement with implementing this third alternative but requested that the agency provide a narrower definition of cases involving criminal offenses or concerns regarding national security or public safety so as to only include the most extreme threats to public safety.
One organizational commenter stated that it was disappointed that the proposed regulation at 8 CFR 236.23(d)(1) would permit USCIS to terminate a DACA grant at any time in its discretion with or without issuance of a notice of intent to terminate and urged USCIS to provide DACA recipients with a fair process before termination. The commenter requested that, at minimum, USCIS provide the recipient with an opportunity to respond, reasoning that procedural fairness is essential to minimize the risk of erroneous deprivation and to decrease racially disparate outcomes. The commenter proposed various amendments to the language at 8 CFR 236.23(d)(1) regarding USCIS' discretionary authority to terminate DACA. The commenter stated that providing notice and an opportunity to respond would: (1) decrease the risk of erroneous DACA terminations; (2) decrease the potential for racially discriminatory decision-making; and (3) honor the deeply held reliance interests that DACA recipients possess.
Many commenters opposed automatic termination based on the filing of an NTA, stating that the rule should not allow ICE or CBP to force USCIS to automatically terminate DACA by issuing and filing an NTA. Some of these pointed out that allowing ICE or CBP to take these actions is contradictory to the core principle of the proposed DACA regulations, which allows USCIS to make considered decisions based on the totality of the circumstances. Similarly, other commenters stated that automatic termination of DACA upon issuance of an NTA undermines the tenets of DACA, which protects against removal and can be requested while in proceedings. Other commenters stated that USCIS is in the best position to make DACA determinations based on agency policy and that ICE and CBP should not be permitted to override USCIS' determinations. Commenters also stated that automatic termination upon NTA filing is arbitrary and capricious under the APA.
Multiple commenters expressed concerns that the proposal would perpetuate racial disparities in policing and the criminal justice since, since NTAs are often issued as a result of encounters with local law enforcement, which disproportionately impact Black people and other people of color. Many other commenters expressed similar concerns, adding that criminal charges are often later dismissed, but if a DACA recipient is placed in removal proceedings on the basis of a criminal charge that is eventually dismissed, their DACA protections are unjustifiably terminated regardless.
One commenter also stated that automatic termination would be a significant change to policy without adequately addressing DACA recipients' serious reliance interests, particularly for those granted DACA after the filing of an NTA or in the presence of a final order of removal who have made career and life plans for the immediate future in reliance on the continuation of DACA, and specifically, on the continuation of the individual's DACA despite the filing of an NTA. Another stated that there are significant reliance interests in the continuation of existing DACA grants because people make consequential decisions based on the 2-year grants of deferred action and many rely on DACA recipients for financial, emotional, and other support.
Many commenters supported the NPRM's first option in alternative two: striking the provision regarding automatic termination of DACA solely based on the filing of an NTA for all DACA recipients. Some recommended going further and specifically prohibiting DACA termination based solely on the filing of an NTA, with one proposing to allow exceptions for fraud, national security threats, or public safety concerns with additional safeguards and a NOIT. Multiple commenters stated that the alternatives proposed did not go far enough and presented problems with consistency and due process. One stated that they agreed with only the second proposed alternative, which would strike or modify the provision regarding automatic termination of DACA solely based on the filing of an NTA. A few commenters opposed the second option in alternative two, stating that tying automatic termination to the issuance of a final removal order would be irrational since individuals with final orders of removal still can be granted DACA. One commenter suggested that the later point in the process when DACA should terminate automatically is upon removal. A few commenters opposed the first alternative—limiting automatic termination based on NTA filing to certain individuals, such as those subject to investigation, arrest, or conviction of an Egregious Public Safety (EPS) offense or who fall within certain terrorism or national security-related inadmissibility or deportability grounds—as too broad and vague, and as continuing to present due process concerns.
Multiple commenters recommended that, at a minimum, if DHS is not inclined to provide NOITs before terminating DACA in all cases and to eliminate automatic termination upon NTA filing, the rule should codify the approach required by the
DHS further agrees that the
Commenters supported what they called a more humane approach that would consider the totality of the circumstances of the individual's departure. One commenter remarked that any DACA recipient who leaves the United States without an advance parole document should have the opportunity to explain their circumstances prior to the termination of their DACA grant. One commenter requested that USCIS communicate specific criteria under which a person would be allowed to leave the United States without securing an advance parole document, including the circumstances that would warrant leaving without advance parole, how long a DACA recipient would be permitted to remain outside of the United States, what evidence they might need to prove their request matches prescribed circumstances, the types of travel documentation they would need to bring along, and the process for returning.
Another commenter recommended that the regulations provide specific, clear and precise circumstances supporting a national security or public safety exception warranting initiation of proceedings. Pursuant to these exceptions, commenters recommended that, if removal proceedings are initiated against a DACA requestor or recipient, or against family members or guardians listed in a DACA request, DHS should assume the burden of proof to support the exception. Similarly, some commenters recommended that DHS be compelled to prove to the Immigration Judge by clear and convincing evidence that the information divulged in the request was not a basis for commencing removal proceedings. If DHS cannot meet this burden of proof, the commenters suggested that removal proceedings be terminated.
Some commenters recommended that USCIS modify the information use provisions to further restrict information use and sharing. These commenters recommended the provisions forbid the disclosure, circulation, or use of all past or future information—including via electronic systems—for reasons beyond implementing DACA. In the event that another agency obtained any information submitted during the DACA process, or if the information was used for any reason beyond carrying out the DACA policy, the commenters recommended that DHS notify the DACA requestor.
Several commenters also recommended that DHS incorporate guidelines on information storage and electronic access, including strict protocols on accessing information stored or obtained electronically, as well as transparency and oversight measures. One commenter urged DHS to make multiple specific improvements to information protection and sharing, including by establishing stronger safeguards for data from noncitizens who were denied DACA, such as not entering biographical information, biometric information, information about the requestor's family, or immigration status information for denied requestors into the A-file. The commenter said these protections are needed because these individuals are vulnerable to identification and removal by enforcement officers, even if their case is not affirmatively referred to ICE. This risk could deter individuals from requesting DACA. This commenter also suggested reconsidering the Form I-812D disclaimer and limiting third-party data sharing, because the combined risk and complexity it poses could potentially deter eligible DACA recipients and their family who depend on deferred action.
A commenter requested a firm and transparent commitment from all branches of the U.S. Government to refrain from collecting or sharing information on DACA requestors with ICE, including geolocation data from private apps requestors use. Another commenter urged DHS to limit its collection of biometric and biographical data to information that is absolutely necessary to verify eligibility for temporary forbearance under DACA. This commenter also requested the opportunity for public comment on any future proposals to expand biometric data collection or use.
In response to commenter's request to modify the information use provision, as discussed above, the rule codifies longstanding prohibitions on use of information with specific exceptions. This longstanding practice has worked to protect against improper uses of information provided in DACA requests for enforcement purposes. DHS therefore respectfully declines to write such granularity into the final rule.
A commenter said that inserting a severability provision in the regulation is not enough to protect and insulate EADs from litigation and preserve access to work authorization. Another commenter echoed this while also expressing concern that future administrative or legal actions could create barriers to DACA recipients' efforts to secure work authorization in a timely manner. Another group of commenters argued against separating deferred action from work authorization, including via the severability provision, arguing that a severability provision should not be necessary because granting employment benefits to DACA recipients does not violate the INA.
DHS understands the concern that if one portion of the rule is severed from the others by a court it could lead to undesirable consequences for DACA recipients. However, although DHS believes that all portions of this rule are well within its legal authority, if a court finds that portions of the rule are unlawful it is preferable to sever and strike only those portions, rather than having the rule stricken in its entirety. Although the important goals and policies reflected here are best served if each of the portions of the rule remains intact, DHS recognizes that each portion of the rule will remain workable without the others. Therefore, even if portions of the rule are struck down DHS will implement the provisions of this rule that survive judicial review. For example, DHS will continue to implement 8 CFR 236.21(c)(1) (relating to forbearance) and 8 CFR 236.21(c)(2) (relating to employment authorization) even if DHS is prohibited from deeming DACA recipients “lawfully present” for purposes of receiving certain Social Security benefits (8 CFR 236.21(c)(3)) or the unlawful presence provisions at INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B) (8 CFR 236.21(c)(4)). Similarly, although there are significant benefits to providing work authorization alongside forbearance, forbearance remains
Many commenters requested expanding advance parole beyond employment, educational, or humanitarian grounds. Commenters noted that current categories are often not applicable for DACA recipients, or that they may be difficult to predict or document months in advance. Some commenters reasoned that delays or denial of parole based on narrow restrictions have adverse impacts on students' educational experiences and outcomes and stated that DACA recipients' access to advance parole improves their educational outcomes and enhances their contributions on campus. Several commenters stated that there was no statutory, regulatory, or practical reason for the narrow grounds for advance parole available to DACA recipients. One commenter requested that USCIS exercise its discretion to issue advance parole to DACA recipients for the broadest range of travel purposes when justified by urgent humanitarian need or significant public benefit, arguing that USCIS is clearly authorized to exercise such discretion. The commenter reported inconsistent application of the current standards by adjudicators and suggested that applying a broader interpretation and maximum discretion would be more efficient, allowing USCIS to timely adjudicate applications for advance parole.
Many commenters suggested DHS expand the grounds for advance parole to include any reason for travel. One commenter requested that advance parole apply to DACA recipients in the same manner as it is applied for TPS recipients (requiring less documentation of specific reasons for travel). Other commenters agreed and recommended that DHS harmonize advance parole requirements for DACA with other forms of humanitarian relief (such as TPS) that require less documentary evidence and allow travel for any reason. Other commenters recommended travel standards be revised to include cultural and familial reasons. One commenter cited research demonstrating that a high percentage (35.4 percent) of DACA students interviewed meet the clinical cutoff for anxiety, and recommended that DHS expand the parameters for advance parole to provide a greater opportunity for DACA recipients to travel abroad and visit family and loved ones over holiday breaks to support mental health.
Consistent with these comments in support of advance parole, DHS reiterates that under the rule, it would continue its adherence to that standard. In response to the commenters who suggest broadening the standard for advance parole to include all reasons for travel, or all reasons for travel if a significant public benefit or urgent humanitarian reason is articulated, DHS has considered this request, but declines to make changes, as statutory language in INA sec. 212(d)(5) that limits DHS's exercise of parole to urgent humanitarian or significant public benefit reasons requires case by case consideration of the reason for travel. While DHS acknowledges commenters' requests to specifically broaden DACA recipients' access to advance parole beyond travel for humanitarian, employment, and educational purposes, DHS declines to set such standards in this rule. DHS has generally found that permitting DACA recipients to travel in certain circumstances for humanitarian, educational, or employment related reasons provides a significant public benefit or is justified as an urgent humanitarian reason for travel. DHS additionally notes that specific instructions for applying for an advance parole document under several categories are provided in the Form I-131, Application for Travel Document itself, and declines to write them into this rule for only DACA requestors.
With respect to the commenters who requested that advance parole for DACA recipients be harmonized with the standards for granting travel authorization to TPS beneficiaries, DHS first notes that TPS, unlike DACA, is a lawful immigration status expressly prescribed by statute. Indeed, Congress expressly contemplated that TPS beneficiaries be able to travel and return with advance authorization.
Conversely, one commenter referred to the court's discussion in
Another commenter stated that long processing times and the 2-year grant of DACA present challenges for DACA recipients to travel freely internationally. The commenter noted that USCIS policies already provide for a combined EAD and advance parole document for applicants for adjustment of status and recommended expanding this option to allow DACA recipients to receive joint EAD and advance parole cards. Similarly, a commenter suggested creating an EAD travel card for work, educational, or humanitarian purposes.
DHS also acknowledges commenters' requests to ease or eliminate advance parole requirements for DACA recipients, as well as the uncertainty associated with returning to the United States. DHS notes that it lacks the authority to do so through rulemaking. DHS does not have the legal authority to eliminate the statutory requirements for parole under INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5), or broaden the requirement beyond the statutory standard of urgent humanitarian reasons or significant public benefit. For these reasons, and those discussed above, DHS is not altering the advance parole requirement in the rule.
Commenters suggested additional ways for USCIS to address processing times, including: resuming expedited request criteria for DACA recipients to reduce the backlog of requests; prioritizing processing of initial and renewal DACA requests; completing processing within 60 days and prioritizing renewal requests nearing their validity expiration; addressing staffing shortages that have contributed to the backlog; and DHS leveraging congressional appropriations to improve DACA request processing.
DHS acknowledges that the projections may be an overestimate, as discussed above. DHS estimated this population based on available internal and external data, and carefully considered a wide variety of economic, policy, and legal expertise and relevant
The commenters assumed this rule will result in 800,000 “extra people” in the U.S. population because individuals meeting the threshold criteria would be removed from or depart the United States absent this rule. DHS disagrees with both assumptions. The persons subject to the Secretary's 2012 policy of enforcement discretion have, by definition, been present in the United States since at least 2007 without lawful status. Promulgation of this rule will neither directly “add” to the number of individuals currently residing in the United States nor increase population growth. DHS also disagrees with the commenters' assumption that in the absence of the rule DACA recipients would be removed or would leave the United States voluntarily. DACA recipients necessarily came to the United States at a very young age, and many have lived in the United States for effectively their entire lives. For many DACA recipients, the United States is their only home. Indeed, some DACA recipients do not even speak the language of their parents' home country. They are unlikely to voluntarily leave the only country they have ever known. Nor is it reasonably foreseeable that their removal would soon be a priority for the agency.
DHS disagrees with the commenters' assertion that this rule “would ultimately grant approximately 800,000 illegal aliens the right to stay and work in the U.S.” This rule does not provide any protection from removal or access to employment authorization beyond what is contemplated in the 2012 DACA policy. It is intended to preserve and fortify the existing DACA policy; it does not alter DACA eligibility criteria, grant lawful immigration status or citizenship for noncitizens or provide a means for entry into the United States. Therefore, DHS anticipates no change in U.S. population as a direct effect of this rule.
In addition, as discussed above, DHS does not believe that codification of the DACA policy is likely to have measurable population effects nationwide or in any particular locations. If such effects were to occur, the relationship between such effects and this rule would likely be highly attenuated. Impacts in particular locations would be contingent upon the independent decisions of individual current and prospective DACA recipients, and upon choices and decision-making processes across a range of individuals and institutions (
DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its components use to comply with the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. The Instruction Manual establishes categorical exclusions that DHS has found to have no such effect. Under DHS implementing procedures for NEPA, for a proposed action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.
This rulemaking implements, without material change, the 2012 DACA policy addressing exercise of enforcement discretion with respect to a specifically defined population of noncitizens and is not part of a larger DHS action. It defines the criteria under which DHS will consider requests for DACA, the procedures by which one may request DACA, and what an affirmative grant of DACA will confer upon the requestor. DHS considered the potential environmental impacts of this rule with respect to an existing population that has been present in the United States since at least 2007 and determined, in accordance with the Instruction Manual, that this rule does not present extraordinary circumstances that would preclude application of a categorical exclusion.
This rule, therefore, satisfies the requirements for application of categorical exclusion A3(c) in accordance with the Department's approved NEPA procedures. DHS does not agree with commenters' assertion that categorical exclusion A3(c) cannot be applied to this action unless DHS first “establish[es] that it had not previously violated NEPA” because it would effectively impose a new procedural step or condition on application of categorical exclusions that is not required or approved for the Department's NEPA implementing procedures. Commenters also raised broader concerns about the adequacy of DHS's NEPA compliance procedures as set forth in the DHS Directive and Instruction Manual. Those concerns are outside the scope of this rulemaking.
As noted throughout this preamble, a number of comments were submitted that did not relate to the substance of the NPRM. Several commenters expressed general opposition to the current administration or its handling of immigration policy, without referring to the proposed rule at all. Some commenters expressed direct opposition to specific political parties, while others opposed Congress.
Multiple commenters shared the challenges they faced in the United States as either an undocumented or documented immigrant without referring to the substance of this rulemaking. Other comments were from noncitizens seeking information or
Numerous commenters provided general support for immigration but did not explicitly refer to DACA. Other out-of-scope comments related to the COVID-19 pandemic, asylum seekers and the Asylum Officer proposed rule, recommendations not pertaining to this rule, and general statements unrelated to the substance of the regulation. DHS has reviewed and considered all such comments and incorporated them as applicable.
E.O. 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, to the extent permitted by law, to proceed only if the benefits justify the costs. They also direct agencies to select regulatory approaches that maximize net benefits while giving consideration, to the extent appropriate and consistent with law, to values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. In particular, E.O. 13563 emphasizes the importance of not only quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility, but also considering equity, fairness, distributive impacts, and human dignity. The latter values are highly and particularly relevant here.
This final rule is designated as a “significant regulatory action” that is economically significant since it is estimated the rule will have an annual effect on the economy of $100 million or more, under section 3(f)(1) of E.O. 12866. Accordingly, OMB has reviewed this final regulation.
This final rule will preserve and fortify DHS's DACA policy for the issuance of deferred action to certain young people who came to the United States many years earlier as children, who have no current lawful immigration status, and who are generally low enforcement priorities. The final rule codifies the following provisions of the DACA policy from the Napolitano Memorandum and longstanding USCIS practice:
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In addition to the retention of longstanding DACA policy and procedure, the final rule includes the following changes in comparison to the NPRM:
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In light of public comments, DHS has made some adjustment to parts of this RIA analysis. The following table captures the changes in the RIA from the NPRM to the final rule.
The final rule will result in new costs, benefits, and transfers. To provide a full understanding of the impacts of DACA, DHS considers the potential impacts of this final rule relative to two baselines. The No Action Baseline represents a state of the world under the DACA policy; that is, the policy initiated by the guidance in the Napolitano Memorandum in 2012 and prior to the July 16, 2021
Table 4 provides a detailed summary of the provisions and their estimated impacts relative to the No Action Baseline. Additionally, Table 5 provides a detailed summary of the provisions and their estimated impacts relative to the Pre-Guidance Baseline.
In addition to the impacts summarized above, and as required by OMB Circular A-4, Table 6 and Table 7 present the prepared accounting statements showing the costs, benefits, and transfers associated with this regulation relative to the No Action Baseline and the Pre-Guidance Baseline, respectively.
Table 7 shows the pre-guidance baseline estimates, which are a comprehensive assessment of the costs and benefits of the rule. Note that the monetized benefits and transfers are a maximum estimate. We are unable to provide a range because of uncertainty as to two factors: (1) the substitutability of workers, and (2) the extent to which the relevant population would be willing and able to work without authorization in the absence of DACA. See discussion in Sections III.A.4.b.6. and III.A.4.b.7.
The INA generally charges the Secretary with the administration and enforcement of the immigration and naturalization laws of the United States.
The Secretary, in this final rule, establishes guidelines for considering requests for deferred action submitted by certain individuals who came to the United States many years ago as children, consistent with the Napolitano Memorandum described above. As with the 2012 DACA policy, this final rule will serve the significant humanitarian and economic interests animating and engendered by the DACA policy, with respect to the population covered by that policy. In addition, the final rule will preserve not only DACA recipients' substantial reliance interests, but also those of their families, schools, employers, faith groups, and communities.
In light of public comments received and relative to the NPRM RIA, DHS has adjusted parts of the RIA for this final rule to incorporate some of the ideas and suggestions presented in various public comments. For example, relative to the NPRM, DHS adjusted the projected DACA population age distribution to account for the possibility that the eligible and active population might age over the next 10 years, thereby moving into higher age groups. As a result of the updated age distribution, the estimated labor force participation rate of the active DACA population also changed. The age distribution is used in the estimation of an average compensation rate for DACA recipients. The average compensation rate together with the estimated labor force participation rate of the active DACA population are used in the estimation of costs, benefits, and transfers of this final rule. In the final rule, DHS also accounted for the value of non-paid time which individuals would forgo when approved for DACA and if they chose to participate in the labor market. This value was subtracted from the estimated benefits. Further, DHS made additions to the qualitative discussion regarding the unquantified and unmonetized benefits after considering suggestions from commenters regarding potential quantification and monetization of certain benefits bestowed on the DACA population by this rulemaking. Additionally, the final rule codifies the longstanding bundled filing requirements and reclassifies the $85 biometrics fee as a Form I-821D filing fee. As such, a complete DACA request under the final rule includes Forms I-821D, I-765, and I-765WS with total fees of $495. Relative to the NPRM, this final rule no longer estimates any potential cost savings from the request and fee structure in the No Action Baseline and no potential transfers from USCIS to the DACA requestor population as DHS is codifying the status quo bundled filing process instead of the proposed provision to unbundle the requests for deferred action from the Application for Employment Authorization. The details of all the adjustments are presented and incorporated throughout this RIA.
DHS estimates the potential impacts of this final rule relative to two baselines. The first baseline is a No Action Baseline, which represents a state of the world wherein the DACA policy would be expected to continue under the Napolitano Memorandum guidance. The No Action Baseline does not account for the July 16, 2021, district court decision, as discussed further in the Population Estimates and Other Assumptions section below discussing this baseline. Relative to this baseline, there were no quantitative and monetized impacts.
The second baseline considered in the analysis is a Pre-Guidance Baseline, which represents a state of the world before the guidance in the Napolitano Memorandum, where the DACA policy does not exist and has never existed. The Pre-Guidance Baseline is included in this analysis in accordance with OMB Circular A-4 guidance, which directs agencies to include a pre-statutory baseline in an analysis if substantial portions of a rule may simply restate statutory requirements that would be self-implementing, even in the absence of the regulatory action.
The cost-benefit analysis of the RIA presents the impacts of this final rule relative to the No Action Baseline first, and then relative to the Pre-Guidance Baseline. In each of the baseline analyses, we begin by specifying the assumptions and estimates used in calculating any costs, benefits, and transfers of this final rule.
The numbers presented in this section have not changed from the NPRM to the final rule. Based on the public comments received, DHS added more clarity to some of the assumptions used in making the population projections in this section. For example, DHS clarified further that the averages of the “stable” period and not its trends are used in the projections of the population numbers.
The final rule will affect certain individuals who came to the United States many years ago as children, who have no current lawful immigration status, and who are generally low enforcement priorities. DHS currently allows certain individuals to request an exercise of discretion in the form of deferred action on a case-by-case basis according to certain criteria outlined in the Napolitano Memorandum. Individuals may request deferred action under this policy, known as DACA.
DHS recognizes a growing literature on the impacts of DACA that identifies noncitizens who may potentially meet DACA threshold criteria based on age and length of time in the United States. This approach to estimating the population affected by this final rule estimates the total number of people who are potentially eligible for consideration for deferred action under the DACA policy and then predicts the proportion of those people who will request DACA in the future. Widely available national microdata that reports the immigration status of the foreign-born population does not exist. The subpopulation that is potentially eligible to request DACA must therefore be estimated by other means. In general, analysts estimate the size of the DACA-eligible population using a residual method in which the total foreign-born population is estimated using various
DHS has two concerns with adopting this approach to estimate the number of future DACA requestors. First, as analysts who use the residual method observe, the approach is complex and highly sensitive to specific modeling assumptions. In a 2021 report estimating the U.S. unauthorized immigrant population for the period January 2015 to January 2018, OIS states that “estimates of the unauthorized population are subject to sampling error in the ACS and considerable non-sampling error because of uncertainty in some of the assumptions required for estimation [of the unauthorized population].”
In light of these modeling challenges, it is possible that a new estimate of the DACA-eligible population based on the residual method would systematically under- or overestimate the authorized immigrant population, which would, in turn, lead to systematic, but unknown, under- or overestimation of the residual subpopulation.
A second concern about using the residual method to estimate the number of future DACA requestors is that even if DHS accurately estimates the total DACA-eligible population, DHS will still need a reliable methodology to predict how many potentially DACA-eligible individuals will actually request DACA in the future. Given the nature of the DACA policy, political factors, the challenging legal history, and the characteristics of the active DACA and DACA-eligible populations, including varying personal circumstances and expectations, predicting how many potentially eligible noncitizens may request DACA would be uncertain and complex, even if a census of the remaining DACA-eligible population existed. Therefore, in the context of this final rule, DHS relies instead on the administrative data USCIS collects from individuals who have requested DACA over the past several years, as described later in this analysis.
To provide a framework for the baseline population estimates, DHS starts by first presenting historical USCIS data on the active DACA population and then presenting historical data on DACA request receipts. These data provide a sense of historical participation in the policy and insights into any trends. The data also allow DHS to make certain assumptions in estimating a potential future active DACA population that would enjoy the benefits of this policy and that may contribute potential transfers to other populations as well as in estimating potential future DACA request receipts (
However, before presenting the historical and projected populations associated with this rule, DHS first identifies certain historical time periods of interest for this analysis. Historically, the 2012 and, subsequently, the 2017 DACA-related memoranda have shaped the level of participation in the DACA policy. The 2012 Napolitano Memorandum initiated the policy, and the 2017 Duke Memorandum halted
Table 8 presents historical data on the volume of DACA recipients who were active as of September 30th of each fiscal year. For clarity, “active” is defined as those recipients who have an approved Form I-821D and I-765 in the relevant USCIS database. The approval can be either an initial or a renewal approval. Additionally, DHS does not need specificity or further breakdown of these data into initial and renewal recipients to project this active DACA population and calculate associated monetized benefits and transfers based on the methodology employed in this RIA. Both initial recipients and renewal recipients are issued an EAD that could be used to participate in the labor market.
On July 16, 2021, the
DHS notes that although this methodology for projecting a future active DACA population has important advantages (including transparency, reproducibility, and a clear nexus to historical policy data), it also has some potential limitations. For instance, the methodology assumes that the active DACA population again will grow at the average rate it grew over the period FY 2015-FY 2017, which was just a few years after the Napolitano Memorandum was issued. Additionally, public comments on this rulemaking have raised concerns over the fact that potential DACA requestors stopped “aging in” to the policy in June 2022, which is when the youngest possible requestor reaches 15 years of age. However, DHS does not believe there will necessarily be a precipitous decline in the growth rate of DACA requestors after new requestors stop “aging in” in 2022. For example, some individuals may newly meet the criteria after June 2022, upon satisfying the educational or military service requirement for the first time. Nothing in the DACA age threshold criteria restrict the population projections made by DHS in this final rule. Nevertheless, DHS projects a decline over the analysis period, albeit gradual, of Initial requests in Table 11.
Similarly, the active DACA population projections do not directly capture the possibility that there could be a surge of request receipts following publication of a final rule, followed by a slower growth rate in later years. However, USCIS notes that projecting a surge in request receipts does not necessarily imply a surge in the active DACA population. The levels of approvals, renewals, and noncitizens renewing or lapsing deferred action under the DACA policy can vary. For example, there could be delays in processing requests caused by the surge of new requests (assuming USCIS maintains current staffing levels) or by other events, noncitizens could cease making renewal requests at higher rates than before, or approval rates could change relative to historical trends. As mentioned previously, a continuation of the injunction on approving initial DACA requests would curtail initial requests.
Next, DHS presents the population used when calculating the monetized costs of this final rule. Table 10 presents historical data on the numbers of DACA request receipts. This population incurred the cost of requesting DACA. The population is composed of initial and renewal requestors, both of whom face similar costs, such as filing fees,
To project total DACA receipts, DHS uses the historical information from Table 10 with the intention to capture a possible surge effect in initial requests, a stabilization effect through the renewals, and then a steady decline in initial requests as the newly DACA-eligible population might dwindle over time because individuals stopped “aging in” in June 2022. DHS first calculates the percentage of initial requests in the previously defined surge years FY 2012-FY 2014 out of the total period FY 2012-FY 2017 to account for a similar possibility in projections, which DHS calls a surge rate.
Table 11 presents the projected volume of DACA request receipts. DHS estimates a surge component in initial requests over FY 2021-FY 2022. As stated, these projections do not adjust for the uncertain impacts of the
The renewals in FY 2023-FY 2024 capture this surge as the historical average number of renewals of 349,165.83 plus 153,528.62. DACA recipients can renew their requests for deferred action every 2 years. Adding total initials and renewals for every fiscal year then yields a total number of requests that will be used in estimating the monetized costs of this final rule.
As with DHS's projection methodology for the active DACA population, DHS acknowledges potential limitations associated with the methodology used to project requests. For instance, although the methodology is transparent, reproducible, and has a clear nexus to historical policy data, the methodology assumes that the “surge rate” for DACA requests following publication of this rule would mirror the surge rate that followed issuance of the Napolitano Memorandum. There are reasons to support such an assumption, including a potential backlog of demand following the Duke Memorandum, subsequent guidance, and ongoing litigation. But there are also reasons to question it, such as the potential that demand was exhausted in the years before issuance of the Duke Memorandum, such that any “surge” in requests would consist primarily of requests from individuals who turned 15 after the Duke Memorandum was issued.
As of July 2021, DHS administrative data for quarters 2 and 3 of FY 2021 show that there were 89,701 initial DACA requests and 302,985 renewal DACA requests pending.
In sum, while population estimates in this final rule are consistent with the overall MPI population estimate,
The final rule codifies, as proposed in the NPRM, that the Form I-821D require an $85 filing fee and eliminates the $85 biometrics fee that had been assessed since the Napolitano Memorandum was issued.
The final rule sets for the following fees associated with a DACA request: the fee to file Form I-765 is $410; a $85 filing fee for Form I-821D; no filing fee for Form I-765WS, or Form G-28; and no biometric services fee. Therefore, the total fee as of May 20, 2020, to submit a DACA request is $495, with or without the submission of Form G-28. DHS believes this is a reasonable proxy for the Government's costs of processing and vetting these forms when filed together.
Compared to the NPRM, in this final rule, DHS adjusted the preparer's estimated total compensation rate to reflect BLS data updates and the estimated DACA recipients' total compensation rate to reflect an adjusted DACA population age distribution. These adjustments are described in detail below. The estimated hourly compensation rate of DACA requestors and the total compensation rate of those hired to prepare and file DACA requests are used as proxies for the opportunity cost of time in the calculation of costs. The estimated wage rate of the requestors also is used to estimate the benefits of income that accrue to those requestors who participate in the labor market through the grant of employment authorization. In the following, DHS explains how it estimates compensation rates of the preparers and requestors. All compensation estimates are in 2020 dollars.
A DACA request can be prepared on behalf of the requestor. In this final rule, DHS assumes that a preparer has similar knowledge and skills necessary for filing a DACA request as an average lawyer would for the same task. Based on Bureau of Labor Statistics (BLS) data, DHS estimates an average loaded wage, or compensation, for a preparer of $103.81.
The benefits-to-wage multiplier is calculated as follows: (total employee compensation per hour.)/(wages and salaries per hour) = $38.60/$26.53 = 1.4549 = 1.45 (rounded).
Total compensation rate calculation: (wage rate) * (benefits multiplier) = $71.59 * 1.45 = $103.81.
To estimate the hourly opportunity cost of time of the DACA requestor population, DHS uses data from Census and USCIS. DHS assumes, for the purposes of this analysis, that the profile of DACA recipients follows that of the U.S. population at large. For example, DHS assumes that the average DACA recipient values education and employment in a similar way as the average person in the U.S. population. This allows DHS to use other government agencies' official data, such as Census data, to estimate DACA recipient compensation rates and other economic characteristics given the absence of DHS-specific DACA recipient population economic data.
USCIS data on the active DACA population
Next, DHS seeks to estimate an average compensation rate that accounts for income variations across these age groups. DHS first obtains annual average Consumer Price Index information for calendar years 2012 through 2020.
Compared to the NPRM, this section contains no changes to the time burdens. In the final rule, DHS did adjust the GSA 2021 travel rate per mile for biometrics adjusted to 2020 values using BLS CPI. Calculating any potential costs associated with this final rule involves accounting for the time that it takes to fill out the required forms, submit biometrics collection, and travel to and from the biometrics collection site. DHS estimates the time burden of completing for Form I-821D is 3 hours per request, including the time for reviewing instructions and completing and submitting the form.
In addition to the filing fee, the requestor will incur the costs to comply with the biometrics submission requirement as well as the opportunity cost of time for traveling to an USCIS Application Support Center (ASC), the mileage cost of traveling to an ASC, and the opportunity cost of time for submitting their biometrics. While travel times and distances vary, DHS estimates that a requestor's average roundtrip distance to an ASC is 50 miles and takes 2.5 hours on average to complete the trip.
Also see BLS CPI information at
Calculation: GSA 2021 rate = $0.56 per mile; average 2021 CPI = 270.97, average 2020 CPI = 258.84. Rate per mile in 2020 dollars is $0.56/((1 + ((270.97 − ;258.84)/258.84)) = $0.5349, rounded to $0.54.
The provisions of this final rule would not impose any new costs on the potential DACA requestor population when requesting deferred action through Form I-821D and an EAD through Form I-765 and Form I-765WS. The final rule would not implement any new forms to file, nor would it change the estimated time burden for completing and filing any of the required forms to request deferred action, and thus the total DACA request cost would not change from the current amount if requestors continued to file Forms I-821D, I-765, and I-765WS. Therefore, relative to the No Action Baseline, the final rule does not impose any new costs on requestors.
There are quantified and monetized benefits as well as unquantified and qualitative benefits associated with the DACA policy under the Napolitano Memorandum and this final rule. The quantified and monetized benefits stem from the income earned by DACA recipients who participate in the labor market. DHS recognizes that some recipients will not participate in the labor market. For example, this category could include DACA recipients who are currently enrolled in school, who perhaps have scholarships or other types of financial aid, and who may not need additional financial support (
To identify the proportion of the DACA recipients who might participate in the labor market, DHS uses data from BLS on labor force participation rates.
DHS calculates the quantified and monetized benefits associated with this final rule by taking the sum of the approved initial and renewal populations (
The unquantified and qualitative benefits of an approved DACA request are discussed in significantly greater detail in the analysis below, regarding the benefits of the rule relative to the Pre-Guidance Baseline.
The provisions of this final rule will produce no transfers relative to the No Action Baseline.
The period of analysis for Pre-Guidance Baseline also includes the period FY 2012-FY 2020, which includes the period during which DHS has operated under the Napolitano Memorandum, to provide a more informed picture of the total impact of the DACA policy. DHS proceeds by considering the DACA population from this period (given by the historical data of Table 8 and Table 10), but applying all the assumptions as presented before (
For the Pre-Guidance Baseline, the total population estimates include all the projected populations described earlier in this analysis for FY 2021-FY 2031, in Table 9 and Table 11, while also adding the historical population numbers presented in Table 8 and Table 10 for FY 2012-FY 2020. To conserve space and time, we will not repeat those numbers here.
All the forms and fees remain the same in the Pre-Guidance Baseline as those presented for the No Action Baseline.
For the Pre-Guidance Baseline, the wage assumptions remain as presented previously for the No Action Baseline with an overall average compensation rate for the DACA requestors of $32.58 and an average compensation rate for preparers of $103.81.
For the Pre-Guidance Baseline, all the time burdens remain as presented previously for the No Action Baseline.
The Pre-Guidance Baseline represents a world without DACA; that is, all baseline impacts are $0. DHS calculates the final rule's impacts relative to this baseline of $0 costs, benefits, and transfers. Given the population estimates, form fees, time burdens, wage assumptions (including preparers'), biometrics fee, travel costs, and biometrics time burden information presented in Section III.A.4.a, DHS presents the requestors' application costs for period FY 2012-FY 2031. The estimated cost per average DACA request is $1,206.83.
The DACA policy also creates cost savings for DHS that are not easily quantified and monetized. For instance, the DACA policy simplifies many encounters between DHS and certain noncitizens, reducing the burden upon DHS of vetting, tracking, and potentially removing DACA recipients. Cost savings vary considerably depending on the circumstances of the encounter; the type of enforcement officer involved; relevant national security, border security, and public safety considerations; and any intervening developments in the noncitizen's situation and equities. In addition, some cost savings that historically have been considered as part of deferred action decision making are inherently difficult to quantify, such as costs associated with taking enforcement action without first considering “the likelihood of ultimately removing the alien, the presence of sympathetic factors that could adversely affect future cases or generate bad publicity . . ., and whether the alien had violated a provision that had been given high enforcement priority.”
There are potential quantified and monetized benefits and unquantified and qualitative benefits associated with this final rule. The quantified and monetized benefits stem from the income earned by DACA recipients who have an EAD and choose to participate in the labor market. By participating in the labor market, DACA recipients are increasing the production of the economy and earning wages, which, in turn, leads to additional consumption. DHS acknowledges the possibility that certain DACA recipients might have participated in the informal labor market and earned wages prior to being granted lawful presence and work authorization under the DACA policy. For this segment of the DACA-recipient population, DHS would be overestimating the quantified benefits in the form of earned income directly attributable to receiving work authorization. Adjusting the quantified benefits to show only income attributable to work authorization under DACA would entail estimating the difference between the compensation these individuals might expect to earn
For example, Borjas and Cassidy (2019) examine the wage differential between informal and formal work for immigrant populations. They apply their analysis of a wage differential, or “wage penalty,” to an estimated proxy of the DACA-eligible population, suggesting that the wage earned as a documented noncitizen could be, on average, 4 percent to 6 percent higher than the wage of an individual working as an undocumented noncitizen. This phenomenon also is discussed in a recently published report on the economic benefits of unauthorized immigrants gaining permanent legal status, which points out that per-hour income differentials exist when comparing unauthorized immigrant workers to citizen and legal immigrant workers.
In addition, DHS considered an additional modification to the estimated benefits to help ensure DHS is not overestimating the quantified benefits directly attributable to receiving DACA. For those who entered the labor market after receiving work authorization and began to receive paid compensation from an employer, counting the entire amount received by the employer as a benefit could likely results in an overestimate. Even without working for wages, the time spent by an individual has value. For example, if someone performs childcare, housework, or other activities without paid compensation, that time still has value. DHS notes that for many workers, paid work can also provide subjective value that exceeds and is not adequately captured by wages; we bracket that possibility here.
Because nonpaid time still has value, a more accurate estimate of the net benefits of receiving work authorization under the final rule would take into account the value of time of the individual before receiving work authorization. For example, the individual and the economy would gain the benefit of the DACA recipients entering the workforce and receiving paid compensation but would lose the value of their time spent performing non-paid activities. Due to the wide variety of non-paid activities an individual could pursue without DACA-based work authorization, it is difficult to estimate the value of that time. DHS requested public comment on how to best value the non-paid time of those who were not part of the authorized workforce without DACA, but did not receive any suggestions as to whether DHS should adjust the estimated benefits to possibly account for leisure or non-paid activities, nor how to adjust the estimated benefits. For this reason, and based on approaches from previous DHS rules,
For total yearly income earnings calculations, DHS uses the previously estimated average annual compensation of DACA EAD recipients of $67,768.79 multiplied by 78 percent of the active population data in Table 9 and the active population estimates in Table 11. DHS estimated 78 percent of DACA recipients will choose to participate in the labor market, potentially earning income. This earned income is presented here as part of the quantified and monetized benefit of this final rule because of recipients having an EAD and working. The benefit (from earned income) per working DACA recipient is adjusted by subtracting the portion that is a transfer from working recipients to the Federal Government, which ends up being $62,584.47 ($67,768.79 * (1−0.0765)). These calculations assume that DACA workers were not substituted for other already employed workers, and that all workers looking for work can find employment in the labor market. As stated in the NPRM and discussed below in Section III.A.4.d, DHS cannot predict the degree to which DACA recipients are substituted for other workers in the U.S. economy since this depends on many factors. Multiplying this per-recipient benefit (income earnings) by the population projections presented earlier in Table 9 and Table 11 yields the results in column A in Table 13.
DHS notes that to whatever extent a DACA recipient's wages otherwise would be earned by another worker, the income earnings and therefore net benefits in Table 13 would be overstated (
The unquantified and qualitative benefits stem in part from the forbearance component of an approved DACA request. The DACA requestors who receive deferred action under this final rule would enjoy additional benefits relative to the Pre-Guidance Baseline. DHS describes these next along with any other qualitative impacts of this final rule relative to the Pre-Guidance Baseline.
Some of the benefits associated with the DACA policy accrue to DHS (as discussed above), whereas others accrue to the noncitizens who are granted deferred action and employment authorization, and still others accrue to family members, employers, universities, and others. Quantification and monetization of many of these benefits is unusually challenging. E.O. 13563 states that:
DHS emphasizes that the goals of this regulation include protection of equity, human dignity, and fairness, and the Department is keenly alert to distributive impacts. DHS also recognizes that while some of those qualitative benefits are difficult or impossible to measure, it is essential that they be considered. Under the final rule, deferred action may be available to people who came to the United States many years ago as children—often as young children. As discussed above, in DHS's view, scarce resources are not best expended with respect to people
It is not simple to quantify and monetize the benefits of forbearance for those who obtain deferred action and their family members. These challenging-to-quantify benefits include (1) a reduction of fear and anxiety for DACA recipients and their families,
DHS notes as well that DACA recipients could be approved for discretionary advance parole, which permits them to seek parole into the United States upon their return from travel outside the United States.
Employment authorization and receipt of an EAD provides additional benefits to the DACA-approved population and their families. An EAD can serve as official personal identification, in addition to serving as proof that an individual is authorized to work in the United States for a specific period. In certain States, depending on policy choices made by the State, an EAD also could be used to obtain a driver's license or other government-issued identification. Like the discussion on the benefits that are derived from being granted deferred action, DHS is unable to fully quantify and monetize the benefits from having official personal identification or a driver's license for individuals in the DACA population.
DHS requested and received public comments on the additional benefits from forbearance and employment authorization beyond the estimated potential labor market earnings of the approved DACA population. A commenter offered some valuable insights as to how to potentially estimate or proxy for some of these additional benefits. For example, the commenter suggested looking at the average treatment costs for anxiety disorders and anxiety reducing services such as anxiety app downloads and purchases as a proxy for the value that people might place on the reduction of fear and anxiety. Further, the commenter suggested looking into the financial and education investments people make as a possible proxy for the value people might place on community belongingness; U.S. data on the average amount of spending for international travel as a possible proxy for the value of advance parole to the DACA recipient population; and the cost of driver licenses as a possible proxy for the value of an EAD beyond the labor market benefits. These are all instructive starting points or proxies for estimation of perhaps lower bound. At the same time, and as explained in that analysis, DHS continues to believe that such starting points and proxies do not permit a full and accurate valuation of these benefits to this population. DHS continues to believe that these unquantifiable benefits are of great positive value and that attempts at fully monetizing them raise serious conceptual, normative, and empirical challenges. It is nonetheless the position of DHS that consistent with E.O. 13563, considerations of human dignity are some of the main drivers of this rule, which is focused on fortifying and preserving a policy for a vulnerable population in the United States since 2012, and on protecting a range of reliance interests.
Finally, as discussed above, this rule reiterates USCIS' longstanding codification in 8 CFR 1.3(a)(4)(vi) of agency policy that a noncitizen who has been granted deferred action is considered “lawfully present”—a specialized term of art that does not confer lawful status or the right to remain in the United States—for the discrete purpose of authorizing receipt of certain Social Security benefits consistent with 8 U.S.C. 1611(b)(2). The final rule also reiterates longstanding policy that a noncitizen who has been granted deferred action does not accrue “unlawful presence” for purposes of INA sec. 212(a)(9) (imposing certain admissibility limitations for noncitizens who departed the United States after having accrued certain periods of unlawful presence). These benefits as well are difficult to quantify in part due to the time-limited nature of the benefits and the various ways in which accrual of unlawful presence might ultimately affect an individual based on their immigration history.
Relative to the Pre-Guidance Baseline, the final rule could yield tax transfers to different levels of government, assuming that DACA recipients with an EAD who are employed are not substituting their labor for the labor of workers already employed in the economy, and that all workers looking for work can find employment in the labor market. DHS makes this assumption for the purposes of this analysis only.
The INA provides for the collection of fees at a level that will ensure recovery of the full costs of providing immigration adjudication and naturalization services by DHS, including administrative costs and services provided without charge to
The projected active DACA population in the
The top four States where current DACA recipients reside represent about 55 percent of the total DACA-approved population: California (29 percent), Texas (16 percent), Illinois (5 percent), and New York (4 percent).
As noted above, the analysis of the final rule relative to the Pre-Guidance Baseline entails consideration of effects going back to FY 2012, when the policy was introduced and the surge of new requestors occurred. Because the Napolitano Memorandum was issued in June of 2012, the FY 2012 September 30th count of 2,019 active DACA participants does not cover a full fiscal year; therefore, DHS adds FY 2012 and FY 2013 together, adjusting by the 78 percent labor market participation rate, for a count of new active DACA entrants in the U.S. labor market equal to 370,421. Applying this number to the U.S. labor market statistics, as in the No Action Baseline labor market analysis above, we estimate that this number of new potential active DACA entrants would represent about 0.2384 percent of the 2013 overall US. civilian labor force of 155,389,000.
Calculation: (332,429/155,389,000) * 100 = 0.2139%.
As noted above, the relative proportion of DACA recipients in any given labor market would depend on the number of active DACA recipients who choose to work and the size of the labor market at that time. DHS expects the number of DACA recipients in the labor force to increase in future years within the period of analysis because, as indicated in Table 9, the RIA projects an increase in the active DACA population in future years. Even in FY 2031, however—when the projected active DACA population would be at its peak of 956,863—the number estimated to participate in the labor force would be 746,353, or 0.4643 percent of the 2020 U.S. civilian labor force.
Although the estimated annual increases in the active DACA population in this final rule are small relative to the total U.S. and individual State labor forces, DHS recognizes that, in general, any increase in worker supply may affect wages and, in turn, the welfare of other workers and employers. However, the effects are not obvious as changes in wages depend on many factors and various market forces, such as the type of occupation and industry, geographic market locations, and overall economic conditions. For example, there are growing industries where labor demand might outpace labor supply, such as in healthcare, food services, and software development sectors. BLS projects that home health and personal care aide occupations will grow by about 34 percent over the next 10 years, cooks in restaurants by about
Isolating immigration's effect on labor markets has been an ongoing task in the research. A 2017 National Academies of Sciences, Engineering, and Medicine (NAS) publication synthesizes the current peer-reviewed literature on the effects of immigration and empirical findings from various publications.
The 2017 NAS Report cautions that:
Whether immigrants are low-skilled or high-skilled workers can matter with respect to effects on wages and the labor market generally.
With respect to wages, in particular, the 2017 NAS Report described recent research showing that,
With respect to employment, the report described research finding
Further, the characteristics of local economies matter with respect to wage and employment effects. For instance, the impacts to local labor markets can vary based on whether such market economies are experiencing growth, stagnation, or decline. On average, immigrants tend to locate in areas with relatively high labor demand or low unemployment levels where worker competition for available jobs is low.
Overall, as noted, the 2017 NAS Report observed that when measured over a period of 10 years, the impact of immigration on the wage of the citizen population overall was “very small.”
The 2017 NAS Report also discusses the economic impacts of immigration and considers effects beyond labor market impacts. Similar to citizens, immigrants also pay taxes; stimulate the economy by consuming goods, services, and entertainment; engage in the real estate market; and take part in domestic tourism. Such activities contribute to further growth of the economy and create additional jobs and opportunities for both citizen and noncitizen populations.
In this section, in consideration of the
With respect to its topic of study, the NAS wrote that:
In addition, second-order effects also clearly occur; analysis of such effects also presents methodological and empirical challenges.
For example, as with the citizen population, the age structure of immigrants plays a major role in assessing any fiscal impacts. Children and young adults contribute less to society in terms of taxes and draw more in benefits by using public education, for example. On average, as people age and start participating in the labor market they become net contributors to public finances, paying more in taxes than they draw from public benefit programs. Moreover, people in post-retirement again could become net users of public benefit programs. Compared to the citizen population, immigrants also can differ in their characteristics in terms of skills, education levels, income levels, number of dependents in the family, the places they choose to live, etc., and any combination of these factors could have varying fiscal impacts.
Local and State economic conditions and laws that govern public finances and availability of public benefits also vary and can influence the fiscal impacts of immigration. The 2017 NAS Report explained that fiscal impacts of immigration:
The extent of such gaps among Federal, State, and local impacts necessarily varies by jurisdiction and due to a range of surrounding circumstances.
Based on the information presented in the 2017 NAS Report, DHS approaches the question of State and local fiscal impacts as follows. First, it is clear that the fiscal impacts of the final rule to State and local governments would vary based on a range of factors, such as the characteristics of the DACA-recipient population within a particular jurisdiction at a particular time (or over a particular period of time), including recipients' age, educational attainment, income, and level of work-related skill as well as the number of dependents in their families. In addition, fiscal effects would vary significantly depending on local economic conditions and the local rules governing eligibility for public benefits.
Second, as compared to the Pre-Guidance Baseline, multiple aspects of this final rule suggest that any burden on State and local fiscal resources imposed by the final rule is unlikely to be significant, and the rule may well have a positive net effect. Under the Pre-Guidance Baseline, most noncitizens who otherwise would be DACA recipients likely would remain in the country, but without the additional measure of security, employment authorization, and lawful presence that this rule would provide. Under the Pre-Guidance Baseline, these noncitizens would continue to use and rely, as necessary, on those safety net and other public resources for which they are eligible. As noted above, DACA recipients may be eligible for more benefits under current State and local law than they otherwise would be eligible for without DACA, but they still do not fall under the “qualified alien” category, and are, therefore, generally ineligible for public benefits at the Federal, State, and local levels.
Third, DHS notes the relatively small size of the DACA population in any particular region relative to any given jurisdiction's overall population. The overall long-term fiscal health of State and local jurisdictions where DACA recipients choose to work and live will depend on many other factors not within DHS's control. In the long term, DHS expects State and local governments to continue to choose how to finance public goods, set tax structures and rates, allocate public resources, and set eligibilities for various public benefit programs, and to adjust these approaches based on the
In short, DHS acknowledges that though the final rule may result in some indirect fiscal effects on State and local governments (both positive and negative), such effects would be extremely challenging to quantify fully and would vary based on a range of factors, including policy choices made by such governments. DHS sought and received public comments on these issues, which it discusses in detail in Section II.A.5.
In the
First, the court raised potential reliance interests of States and their residents, writing that
In developing this final rule, DHS has considered a wide range of potential reliance interests. As noted throughout this preamble, reliance interests can take multiple forms, and may be entitled to greater or lesser weight depending on the nature of the Department action or statement on which they are based. Such interests can include not only the reliance interests of DACA recipients, but also those indirectly affected by DHS's actions, including DACA recipients' family members, employers, schools, and neighbors, as well as the various States and their other residents. Some States have relied on the existence of DACA in setting policies regarding eligibility for driver's licenses, in-state tuition, State-funded healthcare benefits, and professional licenses.
In addition, prior to 2012, some States may have relied on the pre-DACA status quo in various ways, although the relevance of such reliance interests may be attenuated by the fact that DACA has been in existence since 2012, and by the fact, as discussed in detail in the NPRM, that the executive branch has long exercised, even prior to 2012, various forms of enforcement discretion with features similar to DACA.
Second, the court wrote that “the parties and amici curiae have raised various other issues that might be considered in a reformulation of DACA,” as follows (in the court's terms):
1. the benefits bestowed by the DACA recipients on this country and the communities where they reside;
2. the effects of DACA or similar policies on legal and illegal immigration;
3. the effects of DACA on the unemployed or underemployed legal residents of the States;
4. whether DACA amounts to an abandonment of the executive branch's duty to enforce the law as written (as the plaintiff States have long claimed);
5. whether any purported new formulation violates the equal protection guarantees of the Constitution (as Justice Sotomayor was concerned that DACA's rescission would
6. the costs DACA imposes on the States and their respective communities.
The court also identified “more attenuated considerations,” as follows:
7. the secondary costs imposed on States and local communities by any alleged increase in the number of undocumented immigrants due to DACA; and
8. what effect illegal immigration may have on the lucrative human smuggling and human trafficking activities of the drug cartels that operate on our Southern border.
DHS sought comment on these reliance interests and discusses them in detail in Section II.A.7 (as to effect on migration and the border), Section II.A.4 (as to effect on other populations, including U.S. workers), and Section II.A.5 (as to effects on communities and States). In those sections, and in this RIA specifically, DHS has addressed several of these issues relative to both baselines.
With respect to item (1), the benefits bestowed by DACA recipients on this country and the communities where they reside are numerous, as discussed in detail in the preamble and RIA. DACA recipients have made substantial contributions, including as members of families and communities, and have offered substantial productivity and tax revenue through their work in a wide range of occupations.
With respect to item (2), as discussed in greater detail elsewhere in the final rule, available data supports DHS's determination that DACA does not act as a significant material “pull factor” (in light of the wide range of factors that contribute to both lawful and unlawful
With respect to item (3), DHS details its consideration of potential harm to unemployed and underemployed individuals in the Labor Market Impacts section. That section discusses findings from the 2017 NAS Report, which summarizes the work of numerous social scientists who have studied the costs and benefits of immigration for decades.
This RIA does not contain a section that discusses the costs of a regulatory alternative in which DACA EADs are terminated or phased out relative to a No Action baseline, although it does contain estimates of costs, benefits, and transfers relative to the Pre-Guidance Baseline, which may be instructive for understanding some of these effects. In a scenario where EADs are terminated and DACA recipients lose their labor market compensation, the estimated monetized benefits in the Pre-Guidance Baseline, could serve as a proxy for the cost of lost productivity to U.S. employers that are unable to find replacement workers in the U.S. labor force. There also could be additional employer costs related to searching for new job applicants.
With respect to item (4), DHS continues to enforce the law as written. As discussed in greater detail throughout the final rule, prioritization and discretion are necessary strategies to fulfill the DHS mission, and the use of deferred action for this purpose is consistent with decades of practice of DHS and the former INS.
With respect to item (5), DHS does not believe that the DACA policy as embodied in this final rule would violate the equal protection component of the Fifth Amendment's Due Process Clause. The rule preserves and fortifies DACA as opposed to rescinding it. Thus, Justice Sotomayor's equal protection concerns over rescission are not implicated. The rule also continues the longstanding practice of treating DACA recipients the same as other recipients of deferred action in that all such recipients are subject to forbearance from removal while they have deferred action, may obtain discretionary employment authorization based on economic need, may obtain advance parole to travel, continue to be deemed “lawfully present” for purposes of receiving certain Social Security benefits identified in 8 CFR 1.3(a)(iv), and do not accrue unlawful presence for purposes of INA sec. 212(a)(9)(B), 8 U.S.C. 1182(a)(9)(B). Therefore, DHS cannot discern a basis for any equal protection claims, much less whether they would have any legal merit.
With respect to item (6), DHS addresses the issue in Section III.A.4.e above. In short, although such an analysis is challenging for a variety of reasons, multiple aspects of this rule suggest that it is unlikely to impose a significant burden on State and local fiscal resources, and it may well have a positive effect.
With respect to items (7) and (8), which relate to the costs of unlawful immigration and human smuggling, DHS disagrees with the premise, as noted in DHS's discussion of item (2) above.
Finally, the court also stated that “if DHS elects to justify DACA by asserting that it will conserve resources, it should support this conclusion with evidence and data. No such evidence is to be found in the administrative record or the DACA Memorandum. DHS should consider the costs imposed on or saved by all governmental units.”
The quantified impact categories are direct costs, benefits, and transfers. The drivers of quantified direct costs stem from the opportunity cost of time associated with requesting deferred action and work authorization under the DACA policy by the requestor population, application fees for Forms I-821D and I-765, and biometrics travel costs. The drivers of quantified direct benefits stem from the total compensation received by those DACA recipients that are employed due to the EAD granted through the DACA policy less the value of non-paid time. The drivers of quantified direct transfers stem from the federal taxes (Social Security and Medicare) paid by the employed DACA recipients.
To compare costs over time, DHS applied a 3 percent and a 7 percent discount rate to the total estimated costs, transfers, and benefits associated with the final rule. Relative to the No Action Baseline, there are no new quantified and monetized costs, benefits, and transfers associated with this final rule. The following tables present the costs, benefits, and transfers relative to the Pre-Guidance Baseline. Table 15 presents a summary of the potential costs relative to the Pre-Guidance Baseline in undiscounted dollars and discounted at 3 percent and 7 percent.
Table 16 presents a summary of the potential net benefits relative to the Pre-Guidance Baseline in undiscounted dollars and discounted at 3 percent and 7 percent.
Table 17 presents a summary of the potential tax transfers relative to the Pre-Guidance Baseline in undiscounted dollars and discounted at 3 percent and 7 percent.
Consistent with the Supreme Court's general analysis in
Consistent with these requirements, DHS has considered a range of regulatory alternatives to the final rule, including alternatives related to a policy of forbearance from removal without employment authorization or the benefits associated with so-called lawful presence. As discussed in detail in Section II.B, the authority to forbear from removal is an undisputed feature of DHS's enforcement discretion, whereas the district court in
The analysis of this forbearance-only alternative is in a sense relatively straightforward. Like the final rule, as compared to the Pre-Guidance Baseline, such an approach would confer a range of benefits to DHS, while also conferring benefits to DACA recipients and their families, in the form of increased security, reduced fear and anxiety, and associated values (which we have not been able to quantify). Unlike the final rule, however, such an approach would not confer upon DACA recipients, their families, and their communities the benefits of their work authorization and employment, or impose the corresponding costs (both quantified here, to the extent feasible). To that extent, although a forbearance-only approach would still have value, such an alternative would have substantially lower net benefits, consistent with the numbers discussed above.
For instance, as discussed in Section II.C.2.a, a policy of forbearance without work authorization also would disrupt the reliance interests of hundreds of thousands of people, as well as the families, employers, schools, and communities that rely on them. It would result in substantial economic losses. It would produce a great deal of human suffering, including harms to dignitary interests, associated with lost income and ability to self-support. Any change that eliminates employment authorization for the DACA population, whether a forbearance-only policy or a wholesale termination of the DACA policy, would result in hundreds of thousands of prime-working-age people remaining in the United States while lacking authorization to work lawfully to support either themselves or their families. Importantly, it also would deprive American employers and the American public at large of the ability to benefit from valuable work of hundreds of thousands of skilled and educated individuals and disappoint their own, independent reliance interests as well. For the Federal Government, as well as for State and local governments, it likely would have adverse fiscal implications, due to reduced tax revenues. In addition, unlike the proposed rule, such an approach would produce reduced transfers to Medicare and Social Security funds, as well as any other transfers associated with the DACA policy under the No Action Baseline. Nonetheless, as explained elsewhere in this preamble, DHS believes that if a
A possible alternative to the policy in the final rule would include (1) forbearance and (2) work authorization, but exclude (3) “lawful presence” and the resulting elimination of one ground of ineligibility for the associated benefits. DHS has carefully considered this alternative and sought public comment on the issues of law and policy associated with it, including data as to the potential effects of such an approach. As noted above, “lawful presence” is not a universal concept but rather is a term of art, referring to eligibility for certain limited Social Security, Medicare, and Railroad Retirement benefits, or the lack of accrual of unlawful presence for purposes of determining inadmissibility under INA sec. 212(a)(9), 8 U.S.C. 1182(a)(9). It could not and does not mean “lawful status.” But DHS believes that this alternative approach also may be inferior, for at least two reasons. First, that approach would single out DACA recipients—alone among other recipients of deferred action, as well as others whose continued presence DHS has chosen to tolerate for a period of time—for differential treatment. Second, DHS is aware that some States have keyed benefits eligibility to lawful presence and may experience unintended indirect impacts if DHS, a decade after issuance of the Napolitano Memorandum, revises that aspect of the policy.
As discussed in greater detail in this rule, DHS also has carefully considered comments related to DHS's authority to confer work authorization and whether the Department should codify a forbearance-only alternative in this rule. The majority of commenters who discussed work authorization supported DHS's proposal that the final rule maintain DACA requestors' ability to request employment authorization, and provided persuasive reasoning for rejecting a forbearance-only alternative, including the substantial reliance interests of DACA requestors, their families, employers, schools, and broader communities in their ability to engage in lawful employment and receive a government-issued ID in the form of an EAD. Upon careful consideration of data available and public comments received, DHS has determined that policy and reliance interests weigh strongly in favor of maintaining forbearance and work authorization in promulgating this rule.
Finally, consistent with the
The Regulatory Flexibility Act of 1980 (RFA),
This final rule does not directly regulate small entities and is not expected to have a direct effect on small entities. It does not mandate any actions or requirements for small entities in the process of a DACA requestor seeking DACA or employment authorization. Rather, this final rule regulates individuals, and individuals are not defined as “small entities” by the RFA.
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of UMRA requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. The inflation-adjusted value of $100 million in 1995 is approximately $177.8 million in 2021 based on the CPI-U.
Steps in calculation of inflation: (1) Calculate the average monthly CPI-U for the reference year (1995) and the most recent current year available (2021); (2) Subtract reference year CPI-U from current year CPI-U; (3) Divide the difference of the reference year CPI-U and current year CPI-U by the reference year CPI-U; (4) Multiply by 100.
Calculation of inflation: [(Average monthly CPI-U for 2021−Average monthly CPI-U for 1995)/(Average monthly CPI-U for 1995)] * 100 = [(270.970−152.383)/152.383] * 100 = (118.587/152.383) * 100 = 0.7782 * 100 = 77.82 percent = 77.8 percent (rounded).
Calculation of inflation-adjusted value: $100 million in 1995 dollars * 1.778 = $177.8 million in 2021 dollars.
The term “Federal mandate” means a Federal intergovernmental mandate or a Federal private sector mandate.
This final rule does not contain such a mandate, because it does not impose any enforceable duty upon any other level of government or private sector entity. Any downstream effects on such entities would arise solely due to their voluntary choices and would not be a consequence of an enforceable duty.
OIRA has designated this final rule as a major rule as defined by section 804 of SBREFA.
This final rule would not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. DHS does not expect that this rule would impose substantial direct compliance costs on State and local governments or preempt State law. Therefore, in accordance with section 6 of E.O. 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule was drafted and reviewed in accordance with E.O. 12988, Civil Justice Reform. This rule was written to provide a clear legal standard for affected conduct and was reviewed carefully to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. DHS has determined that this rule meets the applicable standards provided in section 3 of E.O. 12988.
Under the PRA,
This final rule requires non-substantive edits to the form listed above where the Type of PRA Action column states, “No material change/Non-substantive change to a currently approved collection.” USCIS has submitted a Paperwork Reduction Act Change Worksheet, Form OMB 83-C, and amended information collection instruments to OMB for review and approval in accordance with the PRA.
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DHS has reviewed this rule in line with the requirements of section 654 of the Treasury and General Government Appropriations Act, 1999,
DHS has determined that the implementation of this rule will not negatively affect family well-being, but rather will strengthen it. This regulation creates a positive effect on the family by helping certain mixed-status families to remain together in the United States and enabling access to greater financial stability. More than 250,000 children have been born in the United States with at least one parent who is a DACA recipient.
This rule has been reviewed in accordance with the requirements of E.O. 13175, Consultation and Coordination with Indian Tribal Governments. E.O. 13175 requires Federal agencies to consult and coordinate with Tribes on a Government-to-Government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. DHS has assessed the impact of this rule on Indian Tribes and determined that this rule does not have Tribal implications that require Tribal consultation under E.O. 13175.
DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the policies and procedures DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508.
The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) that experience has shown do not have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. The Instruction Manual establishes categorical exclusions that DHS has found to have no such effect. Under DHS implementing procedures for NEPA, for a proposed action to be categorically excluded, it must satisfy each of the following three conditions: (1) the entire action clearly fits within one or more of the categorical exclusions; (2) the action is not a piece of a larger action; and (3) no extraordinary circumstances exist that create the potential for a significant environmental effect.
As discussed earlier in this preamble, DHS does not believe the rule triggers NEPA obligations in the first instance because it simply codifies existing policy toward a population already in the United States and thus does not alter the environmental status quo. As discussed above, many DACA recipients have lived in the United States for nearly their entire lives and are unlikely to voluntarily leave. And because DACA recipients would be at very low priority for removal even absent DACA, it is very unlikely that DACA recipients would be involuntarily removed. That said, DHS continues to believe that speculating about the difference in the population effects between the existing DACA policy and the DACA rule—or between existing DACA policy and no DACA—would require predicting a myriad of independent decisions by a range of actors (including current and prospective DACA recipients, employers, law enforcement officers, and courts) at indeterminate times in the future. Such predictions are unduly speculative and not amenable to NEPA analysis.
Nevertheless, if NEPA does apply to this action, the action would fit within categorical exclusion number A3(c), which includes rules that “implement, without substantive change, procedures, manuals, and other guidance documents” as set forth in the Instruction Manual. This rulemaking implements, without material change, the 2012 DACA policy addressing exercise of enforcement discretion with respect to a specifically defined population of noncitizens and is not part of a larger DHS action. It defines the criteria under which DHS will consider requests for DACA, the procedures by which one may request DACA, and what an affirmative grant of DACA will confer upon the requestor. DHS considered the potential environmental impacts of this rule with respect to an existing population that has been present in the United States since at least 2007 and determined, in accordance with the Instruction Manual, that this rule does not present extraordinary circumstances that would preclude application of a categorical exclusion. This rule, therefore, satisfies the requirements for application of categorical exclusion A3(c) in accordance with the Department's approved NEPA procedures.
This rule would not cause a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Therefore, a takings implication assessment is not required.
E.O. 13045 requires agencies to consider the impacts of environmental health risk or safety risk that may disproportionately affect children. DHS has reviewed this rule and determined that this rule is not a covered regulatory action under E.O. 13045. Although the rule is economically significant, it would not create an environmental risk to health or risk to safety that may disproportionately affect children. Therefore, DHS has not prepared a statement under this E.O.
Fees, Immigration.
Administrative practice and procedure, Aliens, Immigration.
Administrative practice and procedure, Aliens, Cultural exchange program, Employment, Penalties, Reporting and recordkeeping requirements, Students.
Accordingly, DHS amends parts 106, 236, and 274a of chapter I of title 8 of the Code of Federal Regulations as follows:
8 U.S.C. 1101, 1103, 1254a, 1254b, 1304, 1356; Pub. L. 107-609; 48 U.S.C. 1806; Pub. L. 115-218; Pub. L. 116-159.
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5 U.S.C. 301, 552, 552a; 6 U.S.C. 112(a)(2), 112(a)(3), 112(b)(1), 112(e), 202, 251, 279, 291; 8 U.S.C. 1103, 1182, 1224, 1225, 1226, 1227, 1231, 1232, 1324a, 1357, 1362, 1611; 18 U.S.C. 4002, 4013(c)(4); 8 CFR part 2.
(a) This subpart applies to requests for deferred action under the enforcement discretion policy set forth in this subpart, which will be described as Deferred Action for Childhood Arrivals (DACA). This subpart does not apply to or govern any other request for or grant of deferred action or any other DHS deferred action policy.
(b) Except as specifically provided in this subpart, the provisions of 8 CFR
(c)(1) Deferred action is an exercise of the Secretary's broad authority to establish national immigration enforcement policies and priorities under 6 U.S.C. 202(5) and section 103 of the Act. It is a form of enforcement discretion not to pursue the removal of certain aliens for a limited period in the interest of ordering enforcement priorities in light of limitations on available resources, taking into account humanitarian considerations and administrative convenience. It furthers the administrability of the complex immigration system by permitting the Secretary to focus enforcement on higher priority targets. This temporary forbearance from removal does not confer any right or entitlement to remain in or reenter the United States. A grant of deferred action under this section does not preclude DHS from commencing removal proceedings at any time or prohibit DHS or any other Federal agency from initiating any criminal or other enforcement action at any time.
(2) During this period of forbearance, on the basis of this subpart only, USCIS may grant employment authorization pursuant to 8 CFR 274a.13 and 274a.12(c)(33) to DACA recipients who have demonstrated an economic need.
(3) During this period of forbearance, on the basis of this subpart only, a DACA recipient is considered “lawfully present” under the provisions of 8 CFR 1.3(a)(4)(vi).
(4) During this period of forbearance, on the basis of this subpart only, a DACA recipient is not considered “unlawfully present” for the purpose of inadmissibility under section 212(a)(9) of the Act.
(d) This subpart rescinds and replaces the DACA guidance set forth in the Memorandum issued by the Secretary of Homeland Security on June 15, 2012. All current grants of deferred action and any ancillary features previously issued pursuant to the Memorandum remain in effect and will expire according to their existing terms. All such current grants of deferred action and any ancillary features, as well as any requests for renewals of those grants and new requests, are hereafter governed by this subpart and not the Memorandum.
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(2) A pending request for deferred action under this section does not authorize or confer any interim immigration benefits such as employment authorization or advance parole.
(3) Subject to paragraph (c) of this section, the requestor bears the burden of demonstrating by a preponderance of the evidence that he or she meets the threshold criteria described in paragraph (b) of this section.
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(i) The absence was short and reasonably calculated to accomplish the purpose for the absence;
(ii) The absence was not because of a post-June 15, 2007 order of exclusion, deportation, or removal;
(iii) The absence was not because of a post-June 15, 2007 order of voluntary departure, or an administrative grant of voluntary departure before the requestor was placed in exclusion, deportation, or removal proceedings; and
(iv) The purpose of the trip, and the requestor's actions while outside the United States, were not contrary to law.
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(i) Regardless of the sentence imposed, is an offense of domestic violence, sexual abuse or exploitation, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, or driving under the influence; or
(ii) If not an offense listed above, is one for which the individual was sentenced to time in custody of more than 90 days. The sentence must involve time to be served in custody and, therefore, does not include a suspended sentence.
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(2) All requests for Deferred Action for Childhood Arrivals, including any requests made by aliens in removal proceedings before EOIR, must be filed with USCIS. USCIS has exclusive jurisdiction to consider requests for Deferred Action for Childhood Arrivals. EOIR shall have no jurisdiction to consider requests for Deferred Action for Childhood Arrivals or to review USCIS approvals or denials of such requests. A voluntary departure order or a final order of exclusion, deportation, or removal is not a bar to requesting Deferred Action for Childhood Arrivals. An alien who is in removal proceedings may request Deferred Action for Childhood Arrivals regardless of whether those proceedings have been administratively closed. An alien who is in immigration detention may request Deferred Action for Childhood Arrivals but may not be approved for Deferred Action for Childhood Arrivals unless the alien is released from detention by ICE prior to USCIS' decision on the Deferred Action for Childhood Arrivals request.
(3) USCIS may request additional evidence from the requestor, including, but not limited to, by notice, interview, or other appearance of the requestor. USCIS may deny a request for Deferred Action for Childhood Arrivals without prior issuance of a request for evidence or notice of intent to deny.
(4) A grant of Deferred Action for Childhood Arrivals will be provided for an initial or renewal period of 2 years, subject to DHS's discretion. Related work authorization granted pursuant to 8 CFR 274a.12(c)(33), if approved in DHS's discretion, will be issued, subject to DHS's discretion, for the period of the associated grant of Deferred Action for Childhood Arrivals.
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(2) If USCIS denies a request for Deferred Action for Childhood Arrivals under this section, USCIS will not issue a Notice to Appear or refer a requestor's case to U.S. Immigration and Customs Enforcement for possible enforcement action based on such denial unless USCIS determines that the case involves denial for fraud, a threat to national security, or public safety concerns.
(3) There is no administrative appeal from a denial of a request for Deferred Action for Childhood Arrivals. The alien may not file, pursuant to 8 CFR 103.5 or otherwise, a motion to reopen or reconsider a denial of a request for Deferred Action for Childhood Arrivals.
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(2) Information contained in a request for Deferred Action for Childhood Arrivals related to the requestor's family members or guardians will not be used for immigration enforcement purposes against such family members or guardians.
(a) Any provision of this subpart held to be invalid or unenforceable as applied to any person or circumstance shall be construed so as to continue to give the maximum effect to the provision permitted by law, including as applied to persons not similarly situated or to dissimilar circumstances, unless such holding is that the provision of this subpart is invalid and unenforceable in all circumstances, in which event the provision shall be severable from the remainder of this subpart and shall not affect the remainder thereof.
(b) The provisions in § 236.21(c)(2) through (4) and § 274a.12(c)(14) and
This subpart is an exercise of the Secretary's enforcement discretion. This subpart—
(a) Is not intended to and does not supplant or limit otherwise lawful activities of the Department or the Secretary; and
(b) Is not intended to and does not create any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.
8 U.S.C. 1101, 1103, 1105a, 1324a; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129 Stat. 599.
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(14) Except as provided for in paragraph (c)(33) of this section, an alien who has been granted deferred action, an act of administrative convenience to the government that gives some cases lower priority, if the alien establishes an economic necessity for employment.
(33) An alien who has been granted deferred action pursuant to 8 CFR 236.21 through 236.23, Deferred Action for Childhood Arrivals, if the alien establishes an economic necessity for employment.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking and request for comment.
The U.S. Department of Energy (“DOE”) proposes to amend its test procedures for water-source heat pumps, with the main changes being ones to expand the scope of applicability of the test procedure, reference different industry standards than currently referenced, change to a seasonal cooling efficiency metric, and change the test conditions used for the heating metric. DOE has tentatively determined that the amended test procedure would produce results that are more representative of an average use cycle and more consistent with current industry practice without being unduly burdensome to conduct. DOE seeks comment from interested parties on this proposal.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section V of this document (Public Participation).
The docket web page can be found at
Ms. Catherine Rivest, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-7335. Email:
Mr. Eric Stas, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-5827. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting webinar, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
DOE proposes to incorporate by reference already-approved industry standards, an update to one of those standards, and a standard not previously-approved.
ANSI/ASHRAE Standard 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment,” including errata sheet issued March 27, 2019, ASHRAE approved June 24, 2009.
Copies of the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (“ASHRAE”) ANSI/ASHRAE Standard 37-2009 are available from the American National Standards Institute (“ANSI”), 25 W. 43rd Street, 4th Floor, New York, NY 10036, (212) 642-4900, or online at:
ASHRAE errata sheet to ANSI/ASHRAE Standard 37-2009—Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment, ANSI/ASHRAE Approved March 27, 2019.
Copies of ASHRAE errata sheet to ANSI/ASHRAE Standard 37-2009 are available from ASHRAE, 180 Technology Parkway NW, Peachtree Corners, GA 30092, (404)-636-8400, or online at
ISO Standard 13256-1:1998, “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps,” ISO approved 1998.
Copies of ISO Standard 13256-1:1998 can be obtained from the International Organization for Standardization (“ISO”), Chemin de Blandonnet 8 CP 401, 1214 Vernier, Geneva, Switzerland, +41 22 749 01 11, or online at:
AHRI Standard 340/360-2022 (I-P), “2022 Standard for Performance Rating of Commercial and Industrial Unitary Air-conditioning and Heat Pump Equipment,” AHRI-approved January 26, 2022.
Copies of AHRI Standard 340/360-2022 (I-P) can be obtained from the Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”), 2311 Wilson Blvd., Suite 400, Arlington, VA 22201, (703) 524-8800, or online at:
See section IV.M of this document for further discussion of these standards.
Water-source heat pumps (“WSHPs”) are a category of small, large, and very large commercial package air-conditioning and heating equipment,
The Energy Policy and Conservation Act, as amended (“EPCA”),
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. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316; 42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered equipment must use as the basis for: (1) certifying to DOE that their equipment complies with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6316(b); 42 U.S.C. 6296), and (2) making representations about the efficiency of that equipment (42 U.S.C. 6314(d)). Similarly, DOE uses these test procedures to determine whether the equipment complies with relevant standards promulgated under EPCA.
Federal energy efficiency requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions of EPCA. (42 U.S.C. 6316(b)(2)(D))
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of covered equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
With respect to WSHPs, EPCA requires that the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”) or by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”), as referenced in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (“ASHRAE Standard 90.1”). (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE must amend its test procedure to be consistent with the amended industry test procedure, unless DOE determines, by rule published in the
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including WSHPs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle. (42 U.S.C. 6314(a)(1))
In addition, if the Secretary determines that a test procedure amendment is warranted, DOE must publish proposed test procedures in the
In this notice of proposed rulemaking (“NOPR”), DOE is proposing amendments to the test procedures for WSHPs in satisfaction of the 7-year-lookback obligations under EPCA. (42 U.S.C. 6314(a)(1))
DOE's existing test procedure for WSHPs is specified at 10 CFR 431.96 (“Uniform test method for the measurement of energy efficiency of commercial air conditioners and heat pumps”). The Federal test procedure currently incorporates by reference International Organization for Standardization (“ISO”) Standard 13256-1 (1998), “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps,” (“ISO 13256-1:1998”). This is the test procedure specified by ASHRAE Standard 90.1 for water-source heat pumps.
DOE initially incorporated ISO 13256-1:1998 as the referenced test procedure for WSHPs on October 21, 2004 (69 FR 61962), and DOE last reviewed the test procedure for WSHPs as part of a final rule for commercial package air conditioners and heat pumps published in the
On June 22, 2018, DOE published a request for information (“RFI”) in the
DOE received comments in response to the June 2018 RFI from the interested parties listed in Table I-1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
In May 2021, ISO published an updated version of Standard 13256-1, ISO Standard 13256-1 (2021), “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps,” (“ISO 13256-1:2021”). ISO 13256-1:2021 is discussed further in section III.D of this NOPR.
In this NOPR, DOE is proposing to amend the Federal test procedures for WSHPs as follows: (1) expand the scope of the test procedure to include WSHPs
DOE proposes to implement these changes by adding new appendices C and C1 to subpart F of part 431, with both to be titled “Uniform Test Method for Measuring the Energy Consumption of Water-Source Heat Pumps,” (“appendix C” and “appendix C1,” respectively). The current DOE test procedure for WSHPs would be relocated to appendix C without change, and the new test procedure adopting AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 and any other amendments would be set forth in proposed appendix C1 for determining IEER. As discussed elsewhere in this NOPR, DOE has tentatively concluded, supported by clear and convincing evidence, that the proposed amended test procedure in appendix C1 (relying on AHRI 340/360-2022 and ASHRAE 37-2009) would provide more representative results and more fully comply with the requirements of 42 U.S.C. 6314(a)(2) than testing with the current Federal test procedure (relying on ISO 13256-1:1998). However, use of proposed appendix C1 would not be required until such time as compliance is required with amended energy conservation standards for WSHPs based on IEER, should DOE adopt such standards, although a manufacturer would need to make any voluntary early representations of IEER in accordance with appendix C1.
DOE's proposed actions are summarized in Table II-1 and addressed in detail in section III of this document.
DOE has tentatively determined that the proposed amendments described in section III of this NOPR regarding the establishment of appendix C would not alter the measured efficiency of WSHPs or require retesting solely as a result of DOE's adoption of the proposed amendments to the test procedure, if made final. DOE has tentatively determined that the proposed test procedure amendments in appendix C1 would, if adopted, alter the measured efficiency of WSHPs. DOE has tentatively determined that the proposed amendments would increase the cost of testing relative to the current Federal test procedure. Use of the proposed appendix C1 and the proposed
In the following sections, DOE proposes certain amendments to the Federal test procedure for WSHPs. For each proposed amendment, DOE provides relevant background information, explains why the amendment merits consideration, discusses any relevant public comments, and proposes a potential approach.
This rulemaking applies to WSHPs, which are a category of small, large, and very large commercial package air-conditioning and heating equipment. (
The current Federal test procedure and energy conservation standards apply to WSHPs with a rated cooling capacity below 135,000 Btu/h. 10 CFR 431.96, Table 1 and 431.97, Table 3. However, DOE has identified WSHPs on the market with cooling capacities equal to or greater than 135,000 Btu/h.
The Joint Advocates encouraged DOE to include WSHPs over 135,000 Btu/h within the scope of the test procedure. (Joint Advocates, No. 10 at p. 1)
AHRI, Trane, and WaterFurnace stated that the market for WSHPs over 135,000 Btu/h is very small—around 0.7 percent of the market—and that finding a lab to test these units would be difficult for the reasons that follow. AHRI commented that manufacturers have limitations on the size of units that can be tested in their own labs, so the proposed expanded scope of the WSHP test procedure to encompass units with higher rated capacities would necessitate the use of third-party labs, resulting in additional costs for testing. AHRI and WaterFurnace further commented that WSHPs in this capacity range are highly customized for their application and asserted that testing them would incur significant costs. Trane added that no independent test labs are currently certified to test WSHPs over 135,000 Btu/h. (Trane, No. 8 at p. 2; AHRI, No. 12 at pp. 3-4; WaterFurnace, No. 7 at pp. 2-3)
Furthermore, AHRI and WaterFurnace argued that units with capacity over 135,000 Btu/h are out of the scope of ISO 13256-1:1998. (AHRI, No. 12 at p. 4; WaterFurnace, No. 7 at p.2) WaterFurnace also commented that AHRI certification costs would be extreme for such a small market due to the need to test three larger and more expensive units for sampling selection of each basic model group, and the likely need to scrap the units after testing due the significant extent of customization of larger units. (WaterFurnace, No. 7 at pp. 2-3)
In response, DOE notes that contrary to the assertions of AHRI and WaterFurnace, no capacity limitation is expressed in ISO 13256-1:1998—the industry standard currently incorporated by reference—or ISO 13256-1:2021. Once again, DOE has identified numerous model lines of WSHPs with cooling capacity over 135,000 Btu/h from a wide variety of manufacturers. The manufacturer literature for all identified model lines includes efficiency representations that are explicitly based on ISO 13256-1:1998.
Additionally, DOE is aware of several independent test labs that have the capability to test WSHPs with cooling capacity over 135,000 Btu/h. DOE conducted investigative testing on multiple WSHP models with cooling capacity over 135,000 Btu/h at one such independent test lab and did not encounter any difficulties specific to units in this capacity range.
Further, AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 include provisions for testing units with capacities over 135,000 Btu/h. Both ASHRAE Standard 90.1 and DOE regulations cover other categories of commercial air conditioning and heating equipment, including water-cooled commercial unitary air conditioners (“WCUACs”), with cooling capacity up to 760,000 Btu/h. DOE has tentatively determined that testing WSHPs with cooling capacity over 135,000 Btu/h would be of comparable burden to testing other commercial air conditioning and heating equipment of similar capacity.
Regarding WaterFurnace's comment that an expansion of test procedure scope would mean that many large units would need to be tested, DOE notes that expanding the scope of the test procedure would not necessitate certification unless DOE were to establish standards for such equipment. Until such a time, an expansion of scope for the test procedure would simplify require that if manufacturers choose to make optional representations of WSHPs with cooling capacity over 135,000 Btu/h, that such optional representations be made in accordance with the DOE test procedure. Further, representations for WSHPs can be made either based on testing (in accordance with 10 CFR 429.43(a)(1)) or based on alternative efficiency determination methods (“AEDMs”) (in accordance with 10 CFR 429.43(a)(2)). An AEDM is a computer modeling or mathematical tool that predicts the performance of non-tested basic models. These computer modeling and mathematical tools, when properly developed, can provide a means to predict the energy usage or efficiency characteristics of a basic model of a given covered product or equipment and reduce the burden and cost associated with testing. Whereas DOE requires at least two units to be tested per basic model when represented values are determined through testing, DOE requires each AEDM to be validated by tests of only two WSHP basic models of any capacity (in accordance with 10 CFR 429.70(c)(2)). Therefore, an expansion of scope for the DOE test procedure would not necessitate the testing of many large units.
For these reasons, DOE has tentatively concluded that testing units with cooling capacity over 135,000 Btu/h is feasible. Moreover, based on the presence on the market of units over 135,000 Btu/h with efficiency ratings and the identification of laboratories capable of testing such units, DOE has tentatively determined that such testing would not be unduly burdensome. Additionally, expanding the scope of DOE's test procedure for WSHPs to include equipment with cooling capacity between 135,000 Btu/h and 760,000 Btu/h would ensure that representations for all WSHPs are made using the same test procedure and that ratings for equipment in this cooling
DOE does not currently specify energy conservation standards for WSHPs with cooling capacity over 135,000 Btu/h. DOE would consider any future standards applicable to WSHPs over 135,000 Btu/h in a separate energy conservation standards rulemaking. Manufacturers of WSHPs with cooling capacity over 135,000 Btu/h would not be required to test WSHPs with a cooling capacity over 135,000 Btu/h until such time as compliance with standards for this equipment were required, should DOE adopt such standards, although any voluntary EER representations would need to be based on the test procedure in appendix C, and any voluntary IEER representations would need to be based on the test procedure in appendix C1 starting 360 days after the publication of a test procedure final rule. Additionally, if DOE were to adopt standards for WSHPs in terms of IEER, after the compliance date for those standards, any representations for WSHPs would be required to be made according to appendix C1.
Issue 1: DOE requests comments on the proposed expansion of the scope of applicability of the Federal test procedure to include WSHPs with cooling capacity between 135,000 and 760,000 Btu/h.
As discussed, WSHPs are a category of commercial package air-conditioning and heating equipment. The current definition for “water-source heat pump” does not explicitly state that it is “commercial package air-conditioning and heating equipment.” This is inconsistent with the definitions of most other categories of commercial package air-conditioning and heating equipment (
In addition, DOE is proposing to amend the WSHP definition to clarify that an indoor fan is not an included component for coil-only WSHPs. The current definition lists the main components of a WSHP, and it includes “indoor fan” on that list. However, DOE has identified coil-only WSHPs on the market that rely on a separately installed furnace or modular blower for indoor air movement. To clarify that coil-only WSHPs are indeed covered under the WSHP definition, DOE is proposing to include the parenthesized statement “except that coil-only units do not include an indoor fan” in the sentence listing the main components in the WSHP definition.
In summary, DOE proposes to amend the definition of WSHP as follows:
“
Issue 2: DOE requests comments on the proposed change to the definition of WSHP to explicitly indicate that WSHP is a category of commercial package air-conditioning and heating equipment and to clarify that the presence of an indoor fan does not apply to coil-only units.
DOE is proposing to relocate and centralize the current test procedure for WSHPs to a new appendix C to subpart F of part 431. As proposed, appendix C would maintain the substance of the current test procedure. The test procedure as proposed in newly proposed appendix C would continue to reference ISO 13256-1:1998 and provide for determining energy efficiency ratio (“EER”) and COP. The proposed appendix C would centralize the additional test provisions currently applicable under 10 CFR 431.96,
DOE is also proposing to establish a test procedure for WSHPs in a new appendix C1 to subpart F of part 431 that would incorporate by reference AHRI 340/360-2022 and ASHRAE 37-2009 along with additional provisions, as discussed in greater detail in the following sections. As proposed, WSHPs would not be required to test according to the test procedure in proposed appendix C1 until such time as compliance is required with an amended energy conservation standard that relies on the IEER metric, should DOE adopt such a standard, although any voluntary representations of IEER prior to the compliance date must be based on testing according to appendix C1.
As noted in section I.B of this document, the DOE test procedure currently incorporates by reference ISO 13256-1:1998 and includes additional provisions for equipment set-up at 10 CFR 431.96(e), which provide specifications for addressing key information typically found in the installation and operation manuals.
ISO 13256-1:1998 specifies the cooling efficiency metric, EER,
The next three sets of operating conditions for determining EER, referred to as “part-load rating test” conditions in Table 1 of ISO 13256-1:1998, are specified to determine EER values at less than full capacity for models with capacity control. As with the standard rating test conditions, Table 1 of ISO 13256-1:1998 specifies part-load rating test conditions for different specific applications (
Additionally, unlike the test methods for other categories of commercial package air conditioners and heat pumps (
Similar to the treatment of fan power, ISO 13256-1:1998 does not produce ratings that reflect the pump power needed to overcome liquid ESP from the water loop that pipes water to and from the WSHP. Instead, section 4.1.4 of ISO 13256-1:1998 includes a pump power adjustment (which assumes a pump efficiency of 0.3 for all units) to be applied such that only the pump power required to overcome the liquid ISP of the unit is taken into account. ISO 13256-1:1998 also does not specify any liquid ESP requirements for testing. The exclusion of pump power to overcome ESP from system water loop piping in ISO 13256-1:1998 ratings results in higher EER ratings than would be measured if ratings reflected pump power to overcome ESP, thereby being more representative of field applications.
An updated version of ISO Standard 13256-1 (
AHRI 340/360-2022 is the industry test procedure used for testing CUAC/HPs. AHRI 340/360-2022 includes the seasonal cooling metric IEER (see section 6.2 of AHRI 340/360-2022), which reflects cooling performance across a range of operating conditions and load levels. Specifically, IEER is a weighted average of the EER at full-load and several part-load conditions intended to represent the range of conditions that a unit would encounter over a full cooling season. The vast majority of operating hours for commercial air conditioners and heat pumps (including CUAC/HPs and WSHPs) occur when conditions are less demanding than full-load conditions. For example, the IEER metric in section 6.2.2 of AHRI 340/360-2022 specifies that full-load conditions account for only 2 percent of operation. AHRI 340/360-2022 also includes minimum ESP requirements that are intended to reflect ESPs in field installations and includes all indoor fan power needed to overcome the tested ESP in the calculation of IEER (see section 6.1.3.3 of AHRI 340/360-2022). AHRI 340/360-2022 also includes a power adder to account for the power of cooling tower fan motor(s) and circulating water pump(s). Similar to other industry test procedures for commercial package air-conditioning and heating equipment, AHRI 340/360-2022 references ANSI/ASHRAE 37-2009 (see section 5.1.1 of AHRI 340/360-2022), which provides a method of test applicable to many categories of air conditioning and heating equipment. In particular, sections 5 and 6 and appendices C, D, E, and I of AHRI 340/360-2022 reference methods of test in ANSI/ASHRAE 37-2009. As discussed in subsequent sections of this notice, DOE has tentatively concluded that AHRI 340/360-2022 addresses many of the identified shortcomings in ISO 13256-1:1998 and ISO 13256-1:2021.
AHRI is in the process of developing a new industry test standard for WSHPs titled “AHRI Standard 600 IEER & SCHE Performance Rating of Water/Brine Source Heat Pumps” (“AHRI 600”). This was formerly designated as AHRI Standard 500P (“AHRI 500P”). DOE has
In the June 2018 RFI, DOE discussed how the test method used in ISO 13256-1:1998 is similar to ANSI/ASHRAE 37-2009 and that ANSI/ASHRAE 37-2009 is the method referenced by the 2015 version of AHRI 340/360 (the most current version at the time; “AHRI 340/360-2015”). 83 FR 29048, 29052 (June 22, 2018). DOE also discussed how AHRI 340/360-2015 is referenced by ASHRAE Standard 90.1 for testing WCUACs, and that DOE was considering whether using the same method of test for WSHPs and WCUACs would be appropriate, given the similarities in the design of WSHPs and WCUACs.
In response to the June 2018 RFI, AHRI and Trane stated that because ASHRAE Standard 90.1 reaffirmed the ISO 13256-1:1998 standard on October 26, 2018, the statutory trigger provisions of 42 U.S.C. 6314(a)(4)(B) do not provide a basis for DOE to review its WSHP test procedure at that time. (AHRI, No. 12 at p. 1, Trane, No. 8 at p. 1)
In response, DOE notes that in addition to the statutory trigger provisions of 42 U.S.C. 6314(a)(4)(B), the Department is statutorily required to review its test procedures every seven years per the 7-year-lookback requirements at 42 U.S.C. 6314(a)(1), as outlined in section I.A of this NOPR.
AHRI, WaterFurnace, and Trane recommended that DOE wait for the ISO revision process to be completed and adopt the revised version of ISO 13256-1:1998 following a second RFI. (AHRI, No. 12 at p. 6; WaterFurnace, No. 7 at p. 2; Trane, No. 8 at p. 3) AHRI and WaterFurnace further commented that the next version of ISO 13256-1 was expected to publish in early 2019, and these commenters recommended that DOE should support the development of the next version of ISO 13256-1:1998. (AHRI, No. 12 at pp. 3, 12-13; WaterFurnace, No. 7 at pp. 2, 10) AHRI and WaterFurnace also stated that many key authors of ANSI/ASHRAE 37-2009 are on the ISO working group, and that the working group was planning to add clarity to the test method with the next revision of ISO 13256-1:1998. The commenters also stated that minimum ESPs were being considered for inclusion in the revised version of ISO 13256-1:1998.
AHRI and WaterFurnace further stated that for international standards, each nation requires slight deviations from the written ISO standard and that the AHRI WSHP/Geothermal Operations Manual
In response, DOE notes that ISO 13256-1:2021 also lacks a seasonal cooling efficiency metric and does not produce ratings that reflect fan power and pump power associated with overcoming ESP. As discussed, a seasonal cooling efficiency metric would account for the range of conditions that a unit would encounter over a full cooling season. In addition, the inclusion of fan and pump power associated with overcoming ESP would provide ratings that would be more representative of the power consumption in field applications needed to overcome pressure from ductwork and water piping. Section III.D.3 of this document provides further discussion of these considerations and DOE's preliminary conclusion that alternate test methods that address these key issues would provide a more representative measure of a WSHP's overall energy efficiency.
While an updated version of ISO Standard 13256-1 has published (
DOE further notes that the AHRI WSHP/Geothermal Operations Manual is not incorporated by reference into the DOE test procedure, nor is it referenced in ASHRAE Standard 90.1. Therefore, the deviations from the ISO standard included in the AHRI WSHP/Geothermal Operations Manual are not reflected in the current DOE test procedure. However, DOE has nonetheless reviewed the AHRI WSHP/Geothermal Operations Manual as part of its consideration of potential amended test procedure provisions in this NOPR.
With regards to use of a part-load efficiency metric, Trane, AHRI, and WaterFurnace commented that industry is currently developing an IEER metric for WSHPs. (Trane, No. 8 at p. 4; AHRI, No. 12 at p. 11; WaterFurnace, No. 7 at p. 9) AHRI and WaterFurnace commented further that the IEER metric
Once again, DOE notes that AHRI 600
DOE also received comments from AHRI, Trane, and WaterFurnace that cautioned against using a different test standard, such as AHRI 340/360, for testing WSHPs instead of ISO 13256-1 as currently specified. (Trane, No. 8 at p. 4; AHRI, No. 12 at p. 12; WaterFurnace, No. 7 at p. 10) AHRI, Trane, and WaterFurnace argued that AHRI 340/360 does not include several important features that are included in ISO 13256-1:1998 such as: provisions for heating performance, performance mapping
The following paragraphs provide DOE's responses to concerns expressed by commenters that AHRI 340/360 and ANSI/ASHRAE 37-2009 lack certain provisions that are present in ISO 13256-1 and that are needed for testing WSHPs.
Regarding provisions for heating tests, DOE acknowledges that AHRI 340/360-2022 does not include certain provisions needed for heating-mode testing of WSHPs because WCUACs, the water-cooled units for which AHRI 340/360-2022 is intended to apply, are not heat pumps. Specifically, AHRI 340/360-2022 does not specify the following provisions for a heating test: an EWT test condition, provisions for setting liquid flow rate, or how pump effects are accounted for. Therefore, DOE is proposing additional provisions that would address these aspects of heating-mode tests of WSHPs, as discussed further in sections III.E.2, III.F.4, III.F.5, and III.F.6 of this document. DOE notes that AHRI 340/360-2022 does include provisions appropriate for air-side measurements in heating tests because AHRI 340/360-2022 covers air-cooled commercial unitary heat pumps. Furthermore, ANSI/ASHRAE 37-2009 provides appropriate provisions for a method of test for WSHPs. DOE has tentatively concluded that its proposals for heating provisions for WSHPs would, when combined with the provisions in AHRI 340/360-2022, produce test results representative of an average use cycle.
Regarding performance mapping across a wide temperature range, part-load ratings, and ratings for ground-water and geothermal applications, DOE acknowledges that AHRI 340/360-2022 does not include EWTs specific to multiple applications of WSHPs. By contrast, Table 1 of ISO 13256-1:1998 provides separate EWTs for water-loop, ground-water, and ground-loop WSHP applications (see discussion in section III.D.1.a of this NOPR). AHRI 340/360-2022 includes full-load and part-load cooling EWTs for only water-loop applications of WCUACs, but the EWT for water-loop applications in Table 1 of ISO 13256-1:1998 is the only EWT test condition used in the current DOE test procedure. As discussed in sections III.D.3 and III.E.1 of this NOPR, DOE has tentatively concluded that the seasonal integrated cooling metric IEER specified in section 6.2 of AHRI 340/360-2022 would be more representative of field applications and provide consumers with a better understanding of year-round performance of WSHPs than the EER metric measured at a single temperature and load level. However, DOE recognizes the potential benefits to consumers of allowing manufacturers to continue to provide performance ratings at the temperatures and load levels specified in Table 1 of ISO 13256-1:1998, in addition to providing the proposed IEER ratings which are more representative of year-round performance. Therefore, as discussed in section III.E.1.a of this NOPR, DOE is proposing in section 5.2 of proposed appendix C1 to provide for optional representations of EER at the EWTs and load levels specified in Table 1 of ISO 13256-1:1998. Consequently, DOE has tentatively concluded that the proposals in this NOPR would continue to provide manufacturers the flexibility to offer full-load and part-load EER ratings at multiple temperatures that can be used for performance mapping, representations of part-load performance, and representations of performance for ground-water and geothermal applications.
Regarding variable-speed compressors, section 6.2 of AHRI 340/360-2022 includes appropriate provisions for testing and determining IEER for units with all compressor
With regards to EPA, State, utility, and building code requirements that reference ISO 13256-1:1998, DOE does not expect that an update to the DOE test procedure for WSHPs would create any particular challenges for any other agency or organization that references the performance ratings as measured by the DOE test procedure. EPCA directs DOE to establish and amend test procedures to be reasonably designed to produce test results which reflect energy efficiency, energy use, and estimated operating costs of covered equipment during a representative average use cycle (as determined by the Secretary), and not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2)) DOE test procedures are updated regularly, across many products and equipment types, and other agencies and organizations have historically updated their requirements as needed in response to those changes. With regard to EPA specifically, DOE has responsibility for developing and revising the test procedures that provide the basis for ratings under EPA's ENERGY STAR program. DOE and EPA work closely together to update ENERGY STAR specifications in response to any changes to the relevant DOE test procedure. Furthermore, DOE is proposing that the amended test procedure would not be required for use until the effective date of any future energy conservation standards based on the IEER metric, thereby providing sufficient advance notice for any agency or organization to adapt program requirements accordingly.
As discussed, EPCA requires that test procedures for covered equipment, including WSHPs, be reasonably designed to produce test results which reflect energy efficiency, energy use, and estimated operating costs of a type of industrial equipment (or class thereof) during a representative average use cycle (as determined by the Secretary), and shall not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
For the reasons presented in the remainder of this section, DOE has tentatively determined that the test procedure for WSHPs as proposed would improve the representativeness of the current Federal test procedure for WSHPs and would not be unduly burdensome. Specifically, DOE has tentatively concluded, supported by clear and convincing evidence as discussed in the following paragraphs, that testing WSHPs in accordance with the industry test standards AHRI 340/360-2022 and ASHRAE 37-2009 would provide more representative results and more fully comply with the requirements of paragraph (2) of 42 U.S.C. 6314(a) than testing in accordance with the currently referenced standard ISO 13256-1:1998. Therefore, DOE is proposing to amend the test procedure for WSHPs so as to incorporate by reference in the proposed new appendix C1 the test provisions in AHRI 340/360-2022 and ASHRAE 37-2009, along with certain additional provisions.
Throughout the remainder of the discussion in section III of this NOPR, DOE presents the details and justifications for the proposed test procedure and deviation from the currently referenced industry test procedure, ISO 13256-1:1998 (
(1) Cooling efficiency metric: As discussed, the cooling metric specified in the current DOE test procedure (which references ISO 13256-1:1998) is EER, which reflects full-load performance only at a single operating condition. In contrast, IEER, the metric specified in section 6.2 of AHRI 340/360-2022, is a seasonal metric that is a weighted average of the full- and part-load performance at different outdoor conditions intended to represent average efficiency over a full cooling season. For the vast majority of operating hours for WSHPs and other commercial air conditioners and heat pumps installed in the field, loads are at less than full-load capacity. This is because units are sized to be able to provide sufficient air conditioning capacity at the hottest time on the hottest day of the year, but the vast majority of annual cooling hours are at significantly lower outdoor temperatures (and thus lower EWTs), with correspondingly lower cooling loads. This is demonstrated in the IEER metric specified in section 6.2.2 of AHRI 340/360-2022, which specifies a weighting factor for full-load conditions of only 2 percent of the hours included in the IEER metric, with the remaining 98 percent of hours assigned to lower load levels and lower outdoor temperatures. As discussed, from RFI comments and DOE's participation in AHRI 600 committee meetings, DOE understands that the AHRI 340/360-2022 IEER weighting factors are also included in the draft AHRI 600. Therefore, DOE has tentatively concluded that IEER would be more representative of an average use cycle than the EER metric. This topic is discussed further in section III.E.1 of this NOPR.
(2) Fan power and indoor air external static pressure: As discussed, for ducted units, ISO 13256-1:1998 does not produce ratings that reflect the fan power needed to overcome ESP. Further, that ISO standard does not specify ESP requirements for ducted units and instead uses a fan power adjustment, such that ratings reflect only the fan power needed to overcome internal static pressure within the unit and not the ESP from the ductwork that would be installed in the field. In contrast, Table 7 of AHRI 340/360-2022 specifies minimum ESP requirements at which performance is measured. Because ducted WSHPs are manufactured to be installed in the field with ductwork, DOE has tentatively concluded that a WSHP rating that reflects the indoor fan power needed to overcome ESP representative of typical installations (
(3) Pump power and liquid external static pressure: ISO 13256-1:1998 does not produce ratings that reflect the pump power needed to overcome liquid ESP. Further, for units with integral pumps, ISO 13256-1:1998 does not specify ESP requirements and uses a pump power adjustment such that ratings reflect only the pump power needed to overcome internal static pressure within the unit. For units with integral pumps, DOE has tentatively concluded that ratings would be more representative if based on testing at a liquid ESP that is representative of the ESP from water piping in typical installations. For units without integral pumps, DOE has tentatively concluded that ratings would be more
DOE is proposing to adopt in its WSHP test procedure the following specific sections of AHRI 340/360-2022:
(1) Section 3: Definitions, excluding sections 3.2, 3.4, 3.5, 3.7, 3.8, 3.12, 3.14, 3.15, 3.17, 3.23, 3.26, 3.27, 3.29, 3.30, and 3.36;
(2) Section 5: Test Requirements;
(3) Section 6: Rating Requirements, excluding sections 6.1.1.7, 6.1.2.1, 6.1.3.4.5, 6.1.3.5.4, 6.1.3.5.5, 6.5, 6.6, and 6.7;
(4) Appendix A. References—Normative;
(5) Appendix C. Indoor and Outdoor Air Condition Measurement—Normative;
(6) Appendix E. Method of Testing Unitary Air Conditioning Products—Normative;
The key substantive changes that would result from DOE's proposal to adopt AHRI 340/360-2022 for testing WSHPs include the following:
(1) A new energy efficiency descriptor, IEER, which incorporates part-load cooling performance (see section 6.2 of AHRI 340/360-2022);
(2) Minimum ESP requirements, instructions for setting airflow and ESP, and tolerances for airflow and ESP (see sections 6.1.3.3, 6.1.3.4, and Table 6 of AHRI 340/360-2022);
(3) Fixed inlet and outlet water temperature conditions (see Table 5 of AHRI 340/360-2022);
(4) Operating tolerance for voltage (see Table 10 of AHRI 340/360-2022);
(5) Different indoor air conditions used for testing (see Table 5 of AHRI 340/360-2022);
(6) Refrigerant charging instructions for cases where they are not provided by the manufacturer (see section 5.8 of AHRI 340/360-2022), and
(7) Use of the primary capacity measurement (
Appendix E of AHRI 340/360-2022 specifies the method of test, including the use of specified provisions of ANSI/ASHRAE 37-2009. Consistent with AHRI 340/360-2022, DOE is proposing to incorporate by reference ANSI/ASHRAE 37-2009 in its test procedure for WSHPs. Specifically, in section 1 of the proposed test procedure for WSHPs in the proposed appendix C1, DOE is proposing to adopt all sections except sections 1, 2, and 4 of ANSI/ASHRAE 37-2009. The key substantive changes that would result from DOE's proposal to adopt ANSI/ASHRAE 37-2009 for testing WSHPs include the following:
(1) Provisions for split systems, such as accounting for compressor heat and refrigerant line losses (see sections 7.3.3.4, 7.3.4.4, and 7.6.1.2 of ASHRAE 37-2009);
(2) Measurement of duct losses for ducted units (see section 7.3.3.3 of ASHRAE 37-2009);
(3) Standardized heat capacity of water and brine (see section 12.2 of ASHRAE 37-2009), and
(4) A calculation for discharge coefficients (see section 6.3.2 of ASHRAE 37-2009).
Throughout the remainder of this NOPR, DOE discusses substantive differences between the proposed test procedure (including references to AHRI 340/360-2022 and ASHRAE 37-2009) and the current DOE test procedure (which incorporates by reference ISO 13256-1:1998). DOE also identified and considered provisions in the updated industry test procedure ISO 13256-1:2021 that substantively differ from ISO 13256-1:1998.
As discussed previously, DOE's current test procedure for WSHPs measures cooling-mode performance in terms of the EER metric, the current regulatory metric. 10 CFR 431.96. EER captures WSHP performance at a single, full-load operating point in cooling mode (
In the June 2018 RFI, DOE requested comment on whether a seasonal metric that accounts for part-load performance would be appropriate for WSHPs, and the Department sought information on the specific details of a seasonal metric that would best represent average cooling efficiency for WSHPs. 83 FR 29048, 29051 (June 22, 2018).
NEEA encouraged DOE to consider adopting IEER for WSHPs and to improve the metric so as to make it more representative of an average use cycle by including changes to more accurately represent fan energy use in field applications, accounting for all modes of operation, and including ventilating and economizing. (NEEA, No. 11 at p. 2)
The Joint Advocates recommended that DOE should consider seasonal efficiency metrics for WSHPs to better reflect field energy consumption, including part-load operation. The Joint Advocates stated that it was their understanding that WSHPs operate most of the time at part-load, and that, therefore, full-load efficiency ratings do not provide sufficient information to consumers. The Joint Advocates also stated that the current metrics do not demonstrate the potential savings associated with technologies that improve part-load efficiency, such as variable-speed compressors. (Joint Advocates, No. 10 at p. 2)
The CA IOUs stated that while the IEER metric provides a valuable measure of annual efficiency, the EER metric is important for achieving reductions in peak loads. These commenters remarked that because the IEER metric uses a low weighting (
Trane, AHRI, and WaterFurnace commented that industry is currently developing an IEER metric for WSHPs (Trane, No. 8 at p. 4; AHRI, No. 12 at p. 11; WaterFurnace, No. 7 at p. 9). AHRI and WaterFurnace explained further that the IEER metric is included in the draft version of AHRI 500P,
As explained previously, DOE notes that the EER metric in DOE's current test procedure for WSHPs measures only full-load performance, and the revised industry test procedure ISO 13256-1:2021 does not include a seasonal metric. For the vast majority of operating hours of WSHPs installed in the field, loads are less than full-load capacity, thus causing single-stage WSHPs to cycle and multi-stage WSHPs to operate at part-load (
DOE has been participating in AHRI committee meetings to develop AHRI 600 with the goal of specifying an IEER metric for WSHPs. It is DOE's understanding that the committee's work is ongoing, and its completion date is uncertain. However, based on comments received on the June 2018 RFI, manufacturer feedback obtained via DOE's participation in AHRI 600 committee meetings, and DOE's own research, the Department has tentatively concluded that the EWTs and weighting factors specified in Table 9 and equation 3 of AHRI 340/360-2022 for water-cooled CUACs would be representative for WSHPs. DOE's understanding based on a review of market literature and available studies is that in the past, WSHP installations were more typically controlled such that water-loop temperatures were maintained at temperatures above 60 °F through heat provided by a system boiler. From manufacturer feedback provided in AHRI 600 committee meetings, DOE understands that in current practice, WSHP installations are typically controlled to allow water-loop temperatures to drop to temperatures closer to 50 °F. Manufacturers indicated that this change in how WSHP system loops are typically controlled in the field is because of multiple factors. One factor provided by manufacturers is that because commercial buildings with WSHP installations are typically cooling-dominated (
Based on the discussion in the preceding paragraphs, DOE has tentatively determined that use of a seasonal efficiency metric, specifically IEER based on AHRI 340/360-2022, would be more representative of the average use cycle of a unit as compared to the current EER metric. Once again, DOE notes that while it may have been expected that AHRI 600 was to publish in 2019, the draft standard has not yet been finalized. Accordingly, DOE is moving forward and proposing to adopt certain provisions of AHRI 340/360-2022 and use the IEER metric specified in section 6.2 of AHRI 340/360-2022 for WSHPs. DOE is proposing to specify the relevant test procedure requirements for WSHPs for measuring IEER in section 5.1 of proposed appendix C1.
As discussed, the proposed IEER test procedure for WSHPs would not be required until such a time as DOE adopts energy conservation standards for WSHPs denominated in terms of IEER, should DOE adopt such standards. If DOE were to adopt such standards, such shift to the IEER metric for WSHPs would require all WSHPs to be re-rated in terms of the IEER metric. Further, beginning 360 days after final rule publication, manufacturers would be required to use the proposed test procedure in appendix C1 to make optional representations of IEER for WSHPs. The cost and impacts to manufacturers of the proposed test procedure are discussed further in section III.I of this document. Additionally, adopting the IEER metric for WSHPs would increase the number of required cooling-mode tests from one to four. However, as discussed, DOE understands that AHRI 600 would provide for calculating IEER from test results measured at the EWTs specified in Table 1 of ISO 13256-1:1998. Consistent with this approach and as discussed in the following section, DOE is proposing to allow determination of IEER via interpolation and extrapolation from testing at the full-load and part-load EWT conditions specified in Table 1 of ISO 13256-1:1998.
In response to the CA IOUs' suggestion, although EPCA limits the agency to promulgation of a single performance standard (
Issue 3: DOE requests comment on its proposal to adopt the test methods specified in AHRI 340/360-2022 for calculating the IEER of WSHPs. DOE also requests comment on its proposal that all EER tests at full-load and part-load conditions specified in Table 1 of ISO 13256-1:1998 (
As discussed, DOE understands that the draft AHRI 600 would provide a mechanism for calculating IEER from test results measured at the EWTs specified in Table 1 of ISO 13256-1:1998. Specifically, interpolation and extrapolation
The ability to determine EER ratings at the ISO 13256-1:1998 EWTs (in accordance with the proposed test procedure, at section 5.2 of the proposed appendix C1), and to determine IEER via interpolation and extrapolation from testing at the ISO 13256-1:1998 EWTs, rather than from additional testing at the IEER EWTs specified in AHRI 340/360-2022, may reduce overall testing burden for manufacturers. Consequently, DOE investigated the AHRI 600 method of calculating IEER.
To evaluate the draft AHRI 600 method of calculating IEER, DOE conducted investigative testing on a sample of WSHPs. DOE presents the results of testing 15 WSHPs in the following paragraphs. This testing compared the interpolation and extrapolation method of calculating IEER at the ISO 13256-1:1998 EWTs to testing at the IEER EWTs specified in AHRI 340/360-2022. In summary and for the reasons discussed in the following paragraphs, DOE has tentatively determined that an interpolation and extrapolation approach, similar to that in draft AHRI 600 with certain modifications, is appropriately representative to calculate IEER.
To determine if the interpolation and extrapolation method is appropriate for WSHPs, DOE evaluated whether the components needed to calculate IEER can be linearly interpolated across EWT. Specifically, the parameters necessary for the calculation of IEER are EER, capacity, total power, and all components of power (
As shown in Table 3, the interpolated values for cooling capacity and total power differed from the corresponding tested values by an average of less than 1 percent. Therefore, DOE has determined that interpolating capacity and total power results in representative values of capacity and total power, respectively. However, the interpolated EER value at 77 °F was higher than the tested EER value at 77 °F for all tested units, with an average difference of 2.3 percent (ranging from 0.3 percent to 4.8 percent higher). Because of the consistent bias in the results showing interpolated EER higher than tested
For determining IEER for single-stage units, this interpolation and extrapolation approach would be used to determine EER at the EWTs for all 4 IEER points, and the EER results for the part-load points (
For two-stage and variable-speed WSHPs, DOE evaluated a method that tests at the minimum compressor speed at the EWTs specified in Table 1 of ISO 13256-1:1998 for part-load tests (
As shown in Table 4, for the six tested two-stage WSHPs, the IEER values calculated using the described interpolation and extrapolation method were on average 0.9 percent lower than the IEER value measured from testing per AHRI 340/360-2022 (ranging from 0.0 percent to 2.7 percent lower).
For the four variable-speed units, the IEER values calculated using the described interpolation and extrapolation method were on average 6.3 percent lower than the IEER value measured from testing per AHRI 340/360-2022 (ranging from 0.2 percent higher to 13.6 percent lower). These results demonstrate a wider discrepancy from AHRI 340/360-2022 results than for single-stage or two-stage WSHPs. This discrepancy is likely because the interpolation and extrapolation method described only includes testing at maximum and minimum compressor speed, whereas the AHRI 340/360-2022 approach includes testing at compressor speeds to operate at each of the part-load test points (
Based on the investigative testing conducted, DOE has tentatively concluded that determining IEER via interpolation and extrapolation from testing at the ISO 13256-1:1998 EWTs (in accordance with DOE's proposed test procedure), similar to the method in the draft AHRI 600, provides appropriately representative results that are comparable to testing at the EWTs (and for staged units, load levels) specified in Table 9 of AHRI 340/360-2022. Therefore, DOE is proposing in section 5 of the proposed appendix C1 to allow that IEER for WSHPs can be calculated from either of two methods: (1) “option 1”—testing in accordance with AHRI 340/360-2022 (at EWTs of 85 °F, 73.5 °F, 62 °F, and 55 °F); or (2) “option 2”—interpolation and extrapolation of cooling capacity and power values based on testing in accordance with the proposed test procedure at EWTs of 86 °F, 77 °F, and 59 °F for full-load tests and (for staged units) EWTs of 86 °F, 68 °F, and 59 °F for part-load tests. For single speed units, option 2 would require three full-load tests at entering liquid temperatures of 86 °F, 77 °F, and 59 °F. For two-stage and variable-speed units, three additional tests at the minimum compressor speed would be required, at entering liquid temperature of 86 °F, 68 °F, and 59 °F.
Specifically for option 2, aside from the EWTs, the tests for option 2 would be performed using the same test provisions from AHRI 340/360-2022, ANSI/ASHRAE 37-2009, and sections 2 through 4 and 7 of proposed appendix C1 as the tests for option 1. As discussed, DOE has tentatively determined that results from the interpolation and extrapolation method have greater agreement with, and, therefore, are comparably representative to, the tested results by interpolating values of cooling capacity and total power rather than interpolating values of EER; therefore, DOE is proposing that the alternative method specify interpolation using the cooling capacity and total power. The proposed provisions for option 2 in section 5.1.2 of proposed appendix C1 are otherwise generally consistent with the draft AHRI 600 method, except for the cyclic degradation approach, which is discussed in section III.F.2.b of this NOPR.
DOE notes that representations for WSHPs can be made either based on testing (in accordance with 10 CFR 429.43(a)(1)) or AEDMs (in accordance with 10 CFR 429.43(a)(2)). If represented values for a basic model are determined with an AEDM, the AEDM could use either option 1 or option 2 for determining IEER per the proposed test procedure in appendix C1.
Issue 4: DOE requests comment on the proposal to allow determination of IEER using two different methods: (1) testing in accordance with AHRI 340/360-2022; or (2) interpolation and extrapolation of cooling capacity and power values based on testing in accordance with the proposed test procedure at the EWTs specified in Table 1 of ISO 13256-1:1998. Specifically, DOE seeks feedback on the proposed method for calculating IEER via interpolation and extrapolation, and on whether this approach would serve as a potential burden-reducing option as compared to testing at the AHRI 340/360-2022 conditions.
Issue 5: DOE requests comment on whether the proposed methodology to determine IEER based on interpolation and extrapolation is appropriate for variable-speed units. DOE would consider requiring variable-speed equipment be tested only according to AHRI 340/360-2022 and, thus, testing physically at the IEER EWTs, if suggested by commenters.
DOE is aware that ISO 13256-1:2021 includes changes from ISO 13256-1:1998 with respect to the EWTs specified for cooling tests. Specifically, Table 2 of ISO 13256-1:2021 specifies full-load cooling temperatures of 86 °F, 68 °F, and 50 °F, and part-load cooling temperatures of 77 °F, 59 °F, and 41 °F. Consistent with the draft AHRI 600 method, DOE is proposing to use the temperatures specified in Table 1 of ISO 13256-1:1998 for option 2 tests; however, it is expected that the results under the proposed interpolation and extrapolation method would provide comparable results using the EWTs specified in Table 2 of ISO 13256-1:2021.
Issue 6: DOE seeks feedback on whether the proposed interpolation and extrapolation method should be based on testing at the ISO 13256-1:2021 EWTs.
DOE's current test procedure for WSHPs measures heating-mode performance in terms of the COP metric, based on testing with a 68 °F EWT. 10 CFR 431.96. For the reasons explained in the following paragraphs, DOE is proposing in section 6.2 of proposed appendix C1 to use an EWT of 55 °F for the COP metric because DOE has tentatively concluded that 55 °F is more representative of field operation than the current EWT of 68 °F.
COP is a full-load heating efficiency metric for WSHP water-loop applications, meaning that it represents the heating efficiency for a WSHP operating at its maximum capacity at an EWT that is typical of heating operation in water-loop applications. Because commercial buildings served by WSHPs in water-loop applications are typically cooling-dominated, DOE understands that the majority of heating hours in these applications occur in simultaneous cooling and heating operation—in which certain WSHPs (
Because DOE understands that WSHP water-loop temperatures are typically controlled to drop closer to 50 °F (as represented by the 55 °F EWT for the 25-percent load point), the Department understands that most hours of heating mode operation for WSHPs in water-loop applications occur with EWTs closer to 50 °F. Therefore, while the current 68 °F EWT for the COP metric may have been more representative of how WSHP systems were controlled in the past (
DOE also considered whether an EWT below 55 °F, specifically 50 °F, might be more representative for determining COP, depending upon typical heating conditions for water-loop WSHPs. However, DOE currently lacks data or evidence indicating that 50 °F would be a more representative heating EWT than 55 °F for WSHPs. Therefore, in the absence of any data suggesting a lower EWT would be more representative of heating operation of WSHPs, DOE is proposing an EWT of 55 °F, which aligns with the lowest IEER EWT as proposed.
Issue 7: DOE seeks comment and data on the representativeness of 55 °F as the EWT condition for determining COP. Specifically, DOE requests feedback and data on whether a lower EWT, such as 50 °F, would be more representative of heating operation of WSHPs. DOE will further consider any alternate EWT suggested by comments in developing any final rule.
Additionally, DOE is proposing provisions in section 6.3 of proposed appendix C1 to provide for optional representations of COP based on testing conducted per the proposed test procedure (sections 2 through 4 and 7 of proposed appendix C1) at the full-load and part-load EWT conditions specified in Table 2 of ISO 13256-1:1998 (
As discussed in section III.E.1.b of this NOPR, DOE is proposing to include an alternate method for determining IEER that allows manufacturers to perform tests at the EWTs in Table 1 of ISO 13256-1:1998 and interpolate efficiency metrics to the EWTs specified in Table 9 of AHRI 340/360-2022. This method would reduce overall testing burden for manufacturers who choose to make optional EER representations at the EWTs specified in Table 1 of ISO 13256-1:1998, by allowing them to avoid additional testing at the IEER EWTs.
In order to provide comparable flexibility for measuring COP, DOE is proposing a similar alternative test method in section 6.2.2 of appendix C1 for determining COP by interpolation from results of testing at the EWTs specified in Table 2 of ISO 13256-1:1998. To evaluate the interpolation method for COP, DOE conducted investigative testing on five WSHPs at the three heating EWTs specified in Table 1 of ISO 13256-1:1998: 68 °F, 50 °F and 32 °F. DOE interpolated the cooling capacity and total power results from 68 °F and 32 °F to 50 °F, and then calculated COP at 50 °F using the interpolated values of cooling capacity and total power.
As shown in Table 4, the COP calculated from interpolated values of cooling capacity and total power differed from measured COP by an average of less than 1 percent. Therefore, DOE has tentatively concluded that determining COP via interpolation in this temperature range from testing at the ISO 13256-1:1998 EWTs (in accordance with DOE's proposed test procedure) provides appropriately representative results that are comparable to testing at 55 °F. Therefore, DOE is proposing in section 6.2 of the proposed appendix C1 to allow that COP for WSHPs can be calculated from either of two methods: (1) “option A”—testing at 55 °F; or (2) “option B”—interpolation of heating capacity and power values based on testing in accordance with the proposed test procedure at EWTs of 50 °F and 68 °F. Aside from the EWTs, the tests for option B would be performed using the same test provisions from AHRI 340/360-2022, ANSI/ASHRAE 37-2009, and sections 2 through 4 and 7 of proposed appendix C1 as the tests for option A.
Issue 8: DOE requests comment on the proposal to allow determination of COP using two different methods: (1) testing at 55 °F; or (2) interpolation of heating capacity and power values based on testing in accordance with the proposed test procedure at EWTs specified for heating tests in Table 2 of ISO 13256-1:1998 (
The current DOE test procedure references ISO 13256-1:1998, which specifies in Table 1 that EER is measured with entering air at 27 °C (80.6 °F) dry-bulb temperature and 19 °C (66.2 °F) wet-bulb temperature and in Table 2 that COP is measured with entering air at 20 °C (68 °F) dry-bulb temperature and 15 °C (59 °F) wet-bulb temperature. Table 2 and Table 3 of ISO 13256-1:2021 specify the same entering air conditions as ISO 13256-1:1998. As
The entering air conditions specified in AHRI 340/360-2022 are similar to the conditions specified in ISO 13256-1:1998 and ISO 13256-1:2021, differing for cooling by 0.6 °F for dry-bulb temperature and 0.8 °F for wet-bulb temperature and for heating by 2 °F for dry-bulb temperature and 1 °F for wet-bulb temperature. DOE surmises that these differences are likely due to the conditions in ISO 13256-1 (1998 and 2021 versions) being specified in terms of degrees Celsius, whereas the conditions in AHRI 340/360-2022 are specified in degrees Fahrenheit. The entering air conditions specified in AHRI 340/360-2022 are the same as in previous versions of AHRI 340/360, including AHRI 340/360-2007, which is referenced in the current DOE test procedure for CUAC/HPs. Further, the most common application for WSHPs (and the application DOE understands that the WSHP industry is intending to represent via use of the IEER metric in AHRI 600) is commercial buildings, similar to CUAC/HPs. Therefore, DOE has tentatively determined that the entering air conditions in AHRI 340/360-2022 are appropriately representative of the average conditions in which WSHPs operate in the field. DOE is proposing in sections 5 and 6 of proposed appendix C1 to use entering air conditions from Table 6 of AHRI 340/360-2022 for both cooling (IEER) and heating (COP) tests.
Issue 9: DOE requests comment on its proposal to specify in proposed appendix C1 use of the cooling entering air conditions from AHRI 340/360-2022 (
On April 1, 2015, DOE published in the
As part of the June 2018 RFI, DOE stated that it was investigating whether changes to the WSHP test procedure are needed to properly characterize a representative average use cycle, including changes to more accurately represent fan energy use in field applications. 83 FR 29048, 29050 (June 22, 2018). DOE requested information as to the extent that accounting for the energy use of fans in commercial equipment such as WSHPs would be additive of other existing accountings of fan energy use.
In the June 2018 RFI, DOE also sought comment on whether accounting for the energy use of fan operation in WSHPs would alter measured efficiency, and if so, to what extent.
The Joint Advocates and NEEA commented that DOE should amend the test procedure to account for fan energy use outside of mechanical cooling and heating for fans in regulated equipment to more fully capture fan energy use. (Joint Advocates, No. 10 at p. 1; NEEA, No. 11 at p. 1) The Joint Advocates asserted that by failing to capture fan operation for economizing, ventilation, and other functions outside of cooling mode, the test procedure may be significantly underestimating fan energy consumption. (Joint Advocates, No. 10 at p. 1)
NEEA commented that the commercial prototype building models used by Pacific Northwest National Laboratory in the analysis in support of ASHRAE Standard 90.1 include information on the operation of fans in ventilation mode and economizer mode and could be used to develop national average fan operating hours outside of heating and cooling. (NEEA, No. 11 at pp. 3) Furthermore, NEEA stated that the vast majority of WSHPs are installed in commercial buildings, thereby subjecting them to ASHRAE Standard 90.1 code requirements such as the requirement of water side economizers in many U.S. climate zones.
NEEA further stated that ANSI and the Air Movement Control Association (“AMCA”) developed ANSI/AMCA 208-18, “Calculation of the Fan Energy Index,” which provides a potential way to measure embedded fan performance in WSHPs using the fan energy index (“FEI”). According to NEEA, DOE could develop a revised IEER-type metric that weighs together cooling performance (using the IEER test) and fan efficiency (using an FEI-based metric). NEEA argued that accounting for the energy use of fan operation in WSHPs does not need to alter measured efficiency, and that to reduce burden on manufacturers, DOE could combine the FEI and IEER metrics such that manufacturers would have multiple viable design option pathways to achieve the minimum IEER efficiency standard without improving the embedded fan efficiency above the minimum FEI efficiency standard. (NEEA, No. 11 at p. 2)
Trane commented that there are some applications in which a WSHP would be used for ventilation, but that ventilation is not the main use, and that using a WSHP for purposes other than heating and cooling is rare. Trane stated further that typical practice is for ventilation air to be provided by a dedicated outdoor air system (“DOAS”) using a separate ductwork system, whereas the WSHP system provides the heating and cooling. Finally, Trane commented that for installations in which the DOAS and WSHPs supply to common ductwork, WSHP fans would operate when
AHRI and WaterFurnace both stated that a high percentage of WSHP systems offer a continuous fan mode to circulate fresh air but did not have data on how often. (AHRI, No. 12 at pp. 4-5; WaterFurnace, No. 7 at p. 3) However, both estimated that a typical WSHP would operate in continuous fan mode (
Further, AHRI and WaterFurnace commented that fan power is largely dependent on motor type and typically represents 13 to 18 percent of total power. (AHRI, No. 12 at pp. 4, 8-9; WaterFurnace, No. 7 at pp. 3, 8-9) AHRI asserted that EPCA imposes a one-metric-per-product limitation and that efforts to capture the energy use of a fan during a mode other than cooling (or heating) would result in an impermissible design requirement. (AHRI, No. 12 at pp. 5, 10)
AHRI stated that DOE has the authority to include certain fans and blowers, by rule, as “covered equipment” if such products meet all the requirements of EPCA at 42 U.S.C. 6311(2). AHRI asserted that if DOE developed a standard for stand-alone industrial fans, it would not be appropriate to apply that standard to fans embedded in regulated equipment. Furthermore, AHRI argued that the fact that Congress granted a specific provision of authority to DOE for a consumer furnace ventilation metric affirms that DOE is without general authority to create overlapping ventilation requirements for other regulated products. (AHRI, No. 12 at pp. 10-11)
Trane and WaterFurnace also commented that regulation of WSHP fans would produce unnecessary overlapping regulations, and that system-level efficiency metrics allow for optimization of the entire system. (Trane, No. 8 at p. 4; WaterFurnace, No. 7 at p. 8) AHRI and WaterFurnace stated that fan energy in cooling and heating are accounted for in the current test procedure and that fans are optimized for these modes because they account for the majority of operational time. (AHRI, No. 12 at p. 8; WaterFurnace, No. 7 at p. 9)
AHRI and WaterFurnace commented that auxiliary heating is not common in WSHPs and estimated that electric heat is included in less than one percent of WSHP shipments. AHRI and WaterFurnace further commented that the primary mode of operation of most WSHPs is cooling and that heating requirements are limited, such that adequate heating can be supplied through heat pump operation alone. (AHRI, No. 12 at p. 4; WaterFurnace, No. 7 at p. 3) Trane stated that for their WSHPs, electric heat is provided only when heat pump operation alone cannot meet the heating demand. Trane further stated that the compressors are locked out while back-up electric heating is used for most WSHPs, with the exception of rooftop WSHP equipment, which allows auxiliary electric heat to supplement the heating provided by the heat pump. (Trane, No. 8 at p. 2)
In response, DOE emphasizes that its request for information regarding fan energy use was in investigation of energy use of WSHPs in operational modes other than those currently evaluated by the test procedure (
In response to the June 2018 RFI, both NEEA and the Joint Advocates encouraged DOE to investigate a load-based test method that could allow more sophisticated and inclusive efficiency metrics. Both NEEA and Joint Advocates commented that the Canadian Standards Association (“CSA”) group is developing CSA EXP07 (“Load-based and climate-specific testing and rating procedures for heat pumps and air conditioners”), which is a dynamic, load-based test procedure expected to better capture performance in the field, including the capturing of cycling losses, benefits of variable-speed operation, and importance of control strategies. (NEEA, No. 11 at p. 2; Joint Advocates, No. 10 at p. 2)
DOE is aware of the dynamic, load-based test procedure being developed by CSA. However, at this time, DOE understands that CSA EXP07 has not been validated and finalized. Furthermore, the CSA EXP07 test procedure is applicable to CAC/HPs, and that test procedure has not yet been evaluated for WSHPs. Further, DOE is not aware of data showing that any dynamic, load-based test procedure produces repeatable and reproducible test results. Therefore, DOE has tentatively concluded that further consideration of CSA EXP07 would be premature at this time, and accordingly, the Department is not proposing to adopt any dynamic, load-based test procedures in this NOPR.
As discussed in section III.D.1.a of this NOPR, for ducted units, sections 4.1.3.1 and 4.1.3.2 of ISO 13256-1:1998 specify a fan power adjustment calculation that does not account for fan power used for overcoming external resistance. As a result, the calculation of efficiency includes only the fan power required to overcome the internal resistance of the unit. In addition, ISO 13256-1:1998 does not specify ESP requirements for ducted equipment, instead allowing manufacturers to specify a rated ESP. While Table 9 of ISO 13256-1:1998 includes an operating tolerance (
In the June 2018 RFI, DOE requested comment on whether minimum ESP requirements should be included for ducted WSHPs, and if so, what values would be appropriate. 83 FR 29048, 29050 (June 22, 2018). DOE also requested information on whether field ESP values typically vary with capacity, and whether fan power used for overcoming ESP should be included in the efficiency calculation for WSHPs
In response to DOE's request for information, the Joint Advocates encouraged DOE to establish minimum ESP values for ducted equipment and to include the fan power used for overcoming external resistance in efficiency calculations for WSHPs. (Joint Advocates, No. 10 at pp. 1-2) NEEA commented that representative ESPs for WSHPs are higher than zero ESP, and the commenter recommended that DOE should ensure the WSHP ESP requirements reflect field installations, stating that otherwise, WSHP ratings will neither provide an adequate representation of actual efficiency nor provide good information to consumers. (NEEA, No. 11 at p. 3) NEEA also reminded that the ASRAC Working Group recommended that test procedures for regulated equipment, including WSHPs, be revised to better capture fan energy use. NEEA further commented that adding minimum ESP values would not increase test burden.
AHRI, Trane, and WaterFurnace stated that the AHRI WSHP certification program does require minimum ESPs that increase with rated capacity for ducted units with fans driven by an electronically-commutated motor (“ECM”), and that these minimum ESPs are being considered for inclusion in the revised version of ISO 13256-1. (AHRI, No. 12 at pp. 5-6; Trane, No. 8 at p. 3; WaterFurnace, No. 7 at p. 5) AHRI and WaterFurnace commented that the field ESP of commercial WSHPs is largely tied to the ductwork and a single filter, typically resulting in ESPs less than 0.50 inches water column (“in H
Trane and AHRI commented that fan power for overcoming ESP should not be included in the efficiency calculation. (AHRI, No. 12 at p. 6; Trane, No. 8 at pp. 2-3) AHRI further commented that the ISO 13256-1:1998 approach (of including a fan power adjustment down to zero ESP) results from the acknowledgment of the variability of ESP in the wide variety of WSHP applications that range from cooling towers/boilers to dry coolers to geothermal earth loop systems. (AHRI, No. 12 at p. 5) Trane and WaterFurnace further commented that excluding the fan power for overcoming ESP from the efficiency calculation ensures that units with indoor fans that produce higher static pressure are not penalized for having a stronger fan motor. (Trane, No. 8 at pp. 2-3; WaterFurnace, No. 7 at p. 4) WaterFurnace added that because more powerful fans to overcome higher field ESPs results in lower certified efficiency, most manufacturers design to the minimum ESP to avoid the excess fan power, and that in field applications, this results in low airflow and poor performance. WaterFurnace commented that their typical WSHP product is tested at higher ESP (greater than 0.4 in H
AHRI and WaterFurnace commented that the AHRI WSHP/Geothermal Operations Manual limits the fan power correction to three percent on the cooling capacity to prevent any application of the correction as a way to inflate efficiencies. (AHRI, No. 12 at p. 8; WaterFurnace, No. 7 at p. 8) AHRI and WaterFurnace further commented that aligning ESP requirements for different equipment categories (with different conditions and applications) is futile and that there will always be differences in HVAC test standards. (AHRI, No. 12 at p. 8; WaterFurnace, No. 7 at p. 7) AHRI, Trane, and WaterFurnace stated that the fan power adjustment factor in ISO 13256-1:1998 is representative for WSHPs. (AHRI, No. 12 at p. 8; Trane, No. 8 at p. 4; WaterFurnace, No. 7 at p. 8) AHRI, Trane, and WaterFurnace also stated that the fan power adjustment factor provides the ability to predict performance at any ESP level. (AHRI, No. 12 at p. 3; Trane, No. 8 at p. 3; WaterFurnace, No. 7 at p. 5)
AHRI and WaterFurnace also stated that the fan efficiency factor noted in the RFI is the same for all current fan motor designs, both permanent magnet variable speed and induction technologies, and they have found them to be reasonable. (AHRI, No. 12 at p. 8; WaterFurnace, No. 7 at p. 7) WaterFurnace further stated that the fan and pump correction factors were developed in 1998 after high-efficiency permanent split capacitor (“PSC”) and ECM fan motor technology were both deployed into the market and that the factor is intended to cover a number of technologies. (WaterFurnace, No. 7 at p. 7)
Regarding whether indoor fans are typically replaced when coil-only WSHPs are installed, AHRI and WaterFurnace commented that they are not aware of any coil-only WSHPs, and, therefore, that test procedure revisions to address such units are unnecessary. (AHRI, No. 12 at p. 8; WaterFurnace, No. 7 at p. 8) AHRI and WaterFurnace also stated that all commercial WSHPs are packaged units and that split systems are not commercially used.
In response to those comments on the June 2018 RFI, DOE would clarify that ducted WSHPs installed in the field must overcome ESP from ductwork. As noted, the method used in ISO 13256-1:1998 and ISO 13256-1:2021 excludes the power to overcome ESP via the fan power adjustment, which adjusts the fan power down to reflect zero ESP. In contrast, testing per AHRI 340/360-2022 requires testing at a minimum ESP requirement (specified in Table 7 of AHRI 340/360-2022) and does not include any adjustments to the fan power. In other words, ratings in accordance with AHRI 340/360-2022 reflect performance at the applicable minimum ESP requirement. DOE has tentatively concluded that testing ducted WSHPs in accordance with AHRI 340/360-2022 (
(1) Use of the fan power adjustment in ISO 13256-1:1998 results in ratings that do not reflect the fan power needed to overcome ESP;
(2) The fan power adjustment in ISO 13256-1:1998 assumes a fan efficiency of 0.3, which underestimates the efficiency of fans in WSHPs, and, thus, underestimates the fan power that would be needed for the fan to operate at zero ESP; and
(3) Rated ESP values that manufacturers use when testing to ISO 13256-1:1998 are typically significantly higher than ESPs representative of water-loop WSHP installations. Because, as stated, the fan power
DOE conducted investigative testing on five WSHPs to determine the extent to which ISO 13256-1:1998 accounts for fan energy use compared to testing at representative ESP requirements per AHRI 340/360-2022. DOE also determined the fan efficiency of these five units. Of the five tested units, three had constant airflow ECM motors and two had constant torque ECM motors.
DOE determined the relationship between ESP and fan power for the five WSHPs by conducting several tests with varying ESP at the rated airflow. As shown in Table 5, DOE determined the fan power for each of the five units at the applicable ESP requirement in AHRI 340/360-2022. These data show that the method in ISO 13256-1:1998 accounts for an average of only 53 percent of the fan power required to overcome the ESP specified in AHRI 340/360-2022.
DOE also calculated the fan efficiency for each unit based on tests conducted with varying ESP at the rated airflow. As shown in Table 5, DOE found that the measured fan efficiency for all five units is higher than the fan efficiency value assumed in ISO 13256-1:1998 (30 percent). Specifically, the average measured efficiency (46 percent) is over 50 percent higher than the ISO 13256-1:1998 value, and the highest measured efficiency is more than double the ISO 13256-1:1998 value. The consistent underestimation of fan efficiency by the ISO 13256-1:1998 fan power adjustment equation for the five tested units results in a larger amount of fan power being subtracted from the measured value when adjusting down to zero ESP than would be representative of the actual fan's operation. In other words, when adjusting the measured fan power down to zero ESP, the fan power adjustment's assumption of a fan efficiency that is lower than is typical in WSHPs results in more power being subtracted than the fan would actually have needed to overcome that level of ESP (because lower-efficiency fans consume more power to provide the same level of output). Therefore, for these five units the resulting rating determined per ISO 13256-1:1998 underestimates the fan power needed to operate at zero ESP because too much fan power is subtracted using the fan power adjustment.
The low fan efficiency value in the ISO 13256-1:1998 fan power adjustment equation results in an incentive for manufacturers to test at a higher ESP than would be representative for WSHPs, to take more advantage of the fan power adjustment by subtracting a larger calculated adjustment from the measured fan power (when adjusting fan power down to reflect performance at zero ESP). DOE's examination of rated ESP values in supplemental test instructions (“STI”) indicates that WSHPs are being rated based on testing with ESPs higher than would be representative. Specifically, DOE examined the STI for 15 WSHPs and found that the average rated ESP was 0.51 in H
Regarding comments received about ESP requirements in the revised version of ISO 13256-1, DOE acknowledges that Table 1 of ISO 13256-1:2021 does include minimum ESPs for all fan motor types, and that those minimum ESPs are generally consistent with the values in Table 7 of AHRI 340/360-2022, albeit with slight differences due to rounding. However, ISO 13256-1:2021 does not include an upper tolerance on ESP (
Because the fan power adjustment method used in ISO 13256-1:1998 and ISO 13256-1:2021 does not capture the fan power to overcome ESP, and underestimates the fan power needed to operate at zero ESP for many units (as determined from DOE's testing and examination of rated ESPs from STI), DOE has tentatively concluded that ratings based on performance at a representative ESP requirement (as is the case in AHRI 340/360-2022) are more representative of the total fan power that would be consumed in field installations.
The minimum ESP requirements specified in Table 7 of AHRI 340/360-2022 align with the minimum ESP requirements specified in Table B2 of the AHRI WSHP/Geothermal Operations Manual and are generally consistent with the minimum ESPs specified in Table 1 of ISO 13256-1:2021, with slight differences due to rounding. Based on the inclusion of similar minimum ESP requirements in the AHRI WSHP/Geothermal Operations Manual and ISO 13256-1:2021, DOE has tentatively concluded that the minimum ESP requirements specified in AHRI 340/360-2022 are representative of water-loop WSHP field installations.
To account for the impacts of ESP typically encountered in the field, DOE is proposing provisions to reflect fan power to overcome a representative ESP when calculating efficiency. As per the discussion in this section and in section III.D.2 of this NOPR, DOE has tentatively determined that to best reflect field operation, WSHPs should be tested with minimum ESPs; the power for overcoming ESP should be included in efficiency calculations; and all equipment should be tested with an ESP upper tolerance. Therefore, DOE has tentatively determined that for WSHPs the method in AHRI 340/360-2022 is more representative of field energy use than the methods used in ISO 13256-1:1998 or ISO 13256-1:2021. As such, DOE is proposing to adopt AHRI 340/360-2022 for WSHPs, including section 6.1.3.3 and Table 7 of AHRI 340/360-2022, which specify minimum ESPs for ducted units, a tolerance on ESP of −0.00/+0.05 in H
Regarding comments received about WSHPs with higher-static fan motors, DOE is proposing an approach for
Regarding comments received about the AHRI WSHP/Geothermal Operations Manual, DOE notes that the Operations Manual is not incorporated by reference in the DOE test procedure and is not referenced in ASHRAE Standard 90.1. Therefore, the provisions included in the AHRI WSHP/Geothermal Operations Manual are not reflected in the current DOE test procedure. However, DOE has nonetheless reviewed the AHRI WSHP/Geothermal Operations Manual as part of its consideration of potential amended test procedure provisions in this NOPR. DOE notes that Table B2 of the AHRI WSHP/Geothermal Operations Manual does specify ESP requirements that align with the ESP requirements specified in Table 7 of AHRI 340/360-2022; however, the ESP requirements in the AHRI WSHP/Geothermal Operations Manual only apply to ducted units with ECM fan motors. DOE has tentatively concluded that specification of ESP requirements would provide for more representative ratings for all ducted WSHPs, not just units with ECM fan motors. Additionally, DOE notes that section A5 of the AHRI WSHP/Geothermal Operations Manual limits the fan power correction to no more than 3 percent of the measured cooling capacity. However, because the fan power correction is applied to both the capacity and total power when calculating EER or COP, the effect of a fan power correction of 3 percent on the calculated efficiency would be significantly more than 3 percent. Further, as discussed, DOE has tentatively concluded that ratings based on minimum ESP requirements would be more representative than ratings based on zero ESP (developed using the fan power correction). For these reasons, DOE is not proposing to incorporate by reference or otherwise adopt the AHRI WSHP/Geothermal Operations Manual as part of the DOE WSHP test procedure.
Regarding comments received about coil-only units, DOE has identified at least one coil-only unit that would meet the definition of a WSHP. In accordance with DOE's proposal to adopt AHRI 340/360-2022, coil-only WSHPs would be subject to the test provisions for setting airflow for coil-only units specified in sections 6.1.3.3 and 6.1.3.4 of AHRI 340/360-2022.
Issue 10: DOE requests comment on the proposal to adopt provisions from AHRI 340/360-2022 such that testing would be conducted within tolerance of the AHRI 340/360-2022 minimum ESP requirements, and efficiency ratings would include the fan power measured to overcome the tested ESP.
ISO 13256-1:1998 specifies airflow rates in section 4.1.5 of that document, including that: (a) non-ducted heat pumps shall be tested at airflow rates obtained at zero ESP; (b) ducted heat pumps with internal fans or with designated air movers shall be tested at the airflow rates obtained at zero ESP or the manufacturer-specified airflow rate, whichever is lower, and (c) ducted heat pumps without internal fans shall be tested at the manufacturer-specified airflow rate subject to a maximum internal pressure drop. Additionally, paragraph (e)(2) of 10 CFR 431.96 requires that the airflow rate used for testing must be specified by the manufacturer in the installation and operation manuals being shipped to the commercial customer, and that if a rated air flow value for testing is not clearly identified, a value of 400 standard cubic feet per minute per ton shall be used.
ISO 13256-1:1998 does not indicate which speed setting should be used to achieve specified airflow for a fan with more than one speed setting. Also, in some cases, the airflow rate and pressure conditions specified for a given ducted heat pump without an internal fan may not be achievable simultaneously. ISO 13256-1:1998 does not provide an approach for simultaneously achieving the specified airflow rate and pressure conditions in cases where the airflow may not be achievable below the maximum internal pressure drop. In the June 2018 RFI, DOE requested comment on whether indoor fans typically have multiple speed settings for WSHPs, and if so, how manufacturers choose the speed to use during testing. DOE also requested comment on how specified airflow is achieved if none of the speed settings produce that airflow at the specified internal or external static pressure. 83 FR 29048, 29051 (June 22, 2018).
AHRI and WaterFurnace commented that most WSHP fans have at least three speeds. (AHRI, No. 12 at p. 7; WaterFurnace, No. 7 at p. 7) Trane commented that their company offers single-speed and multi-speed units. (Trane, No. 8 at p. 4) AHRI, Trane, and WaterFurnace stated that as part of AHRI's certification program, the test facility utilizes the blower speed specified by the manufacturer in literature and submission data. (AHRI, No. 12 at p. 7; Trane, No. 8 at p. 4; WaterFurnace, No. 7 at p. 7) AHRI and WaterFurnace further stated that manufacturers select an airflow that is advantageous for the specifications they are trying to achieve; for example, low airflows are beneficial for humidity removal.
AHRI acknowledged that in some cases, the airflow rate and pressure conditions specified by ISO 13256-1:1998 for a given ducted heat pump without an internal fan may not be achievable simultaneously. As an example, AHRI described a scenario in which the manufacturer-specified airflow may not be achievable below the maximum internal pressure drop specified in section 4.1.5.3 of ISO 13256-1:1998. AHRI stated that ISO 13256-1:1998 does not provide an approach for simultaneously achieving the specified airflow rate and pressure conditions in such a case. (AHRI, No. 12 at p. 7) In such cases, AHRI and WaterFurnace stated that provisions in Appendix B of the AHRI WSHP/Geothermal Operations Manual are used that permit a tolerance for achieving the specified airflow within 10 percent of the manufacturers specified flow rate. (AHRI, No. 12 at p. 7; WaterFurnace, No. 7 at p. 6)
On this topic, DOE notes that the provisions of ISO 13256-1:2021 are equivalent to those in ISO 13256-1:1998 for setting airflow of non-ducted units and ducted units without internal fans. For ducted units with internal fans, ISO 13256-1:2021 provides additional specifications beyond those in ISO 13256-1:1998. Table 1 of ISO 13256-1:2021 provides minimum ESP values and explains that airflow should be set
As noted in section III.F.1.a of this document, DOE is proposing to adopt the minimum ESP requirements in Table 7 of AHRI 340/360-2022 and condition tolerances in Table 6 of AHRI 340/360-2022. For the reasons that follow, DOE has tentatively concluded that AHRI 340/360-2022 is superior to available alternatives in terms of these objectives. To start, DOE has tentatively determined that more specification than provided in ISO 13256-1:1998 is needed to ensure consistent and repeatable setting of airflow and ESP for testing, thereby ensuring the representativeness of the results. For example, ISO 13256-1:1998 does not specify what to do in certain circumstances when instructions provided are unclear or conflict (
Therefore, as stated previously in this NOPR, DOE is proposing to incorporate by reference AHRI 340/360-2022, including adoption of sections 6.1.3.3 through 6.1.3.5, which specify a 3 percent condition tolerance for airflow rate, a −0.00/+0.05 in H
DOE notes, however, that the relevant provisions in AHRI 340/360-2022 were generally developed for ducted units with continuously variable-speed fans. Accordingly, additional provisions specific to testing ducted units with discrete-step fans and non-ducted units are necessary. The following sub-sections discuss the proposed additional provisions for such WSHPs.
Issue 11: DOE requests comment on the proposed adoption of provisions from AHRI 340/360-2022 for setting airflow and ESP for WSHP testing.
Many ducted WSHPs have fans with discrete steps in speed. In situations where both airflow and ESP tolerances cannot be met, the instructions in section 6.1.3.5 of AHRI 340/360-2022 can result in ducted units with discrete-step fans operating with ESPs that are higher than the tolerance on the ESP requirements due to the difference in fan speed between each step.
Section 6.1.3.5 of AHRI 340/360-2022 specifies that the measured airflow during test must be within 3 percent of the rated airflow and that the ESP during test must be within −0.00/+0.05 in H
Therefore, for ducted units with discrete-step fans, DOE is proposing in section 3.2 of proposed appendix C1 instructions for setting the fan speed in the scenario in which: (1) tolerances for airflow and ESP cannot be met simultaneously, and (2) adjacent fan control settings result in airflow or ESP too low at the lower fan control setting and too high at the higher fan control setting. These proposed instructions specify to exclude sections 6.1.3.5.2.4 and 6.1.3.5.3.2.3 of AHRI 340/360-2022, and to allow airflow to drop to 90 percent of the specified airflow rate while maintaining ESP within tolerance. If ESP cannot be maintained within tolerance at 90 percent of the specified airflow rate, the proposed instructions specify to use the next highest fan speed and allow ESP to exceed the tolerance while maintaining airflow within tolerance.
Issue 12: DOE requests comment on its proposed instructions for setting airflow and ESP for ducted WSHP units with discrete-step fans.
DOE is aware that some WSHPs may be installed without indoor air distribution ducts in the field. Depending on the type of installation, the test method specified in ISO 13256-1:1998 differs; section 4.1.2 of ISO 13256-1:1998 specifies provisions for WSHPs installed without ducts, and section 4.1.3 of the standard specifies provisions for WSHPs installed with ducts. ISO 13256-1:1998 does not specify how to distinguish whether a unit is ducted or non-ducted. The provisions of ISO 13256-1:2021 are the same as those of ISO 13256-1:1998 in this regard.
In the June 2018 RFI, DOE requested comment on the physical characteristics that distinguish ducted and non-ducted WSHPs. DOE also requested comment
In response to DOE's request for information, AHRI and WaterFurnace commented that WSHPs may be designed for use either with or without indoor air distribution ducts, and that while the specified test set-ups are different, the non-ducted test simulates the conditions of the ducted test using a hood with zero static to accumulate the supply air for volumetric and enthalpy measurements. (AHRI, No. 12 at pp. 6-7; WaterFurnace, No. 7 at pp. 5-6)
AHRI and WaterFurnace also commented that the majority of WSHPs are designed for use with ductwork but that there are some console units designed to “free blow” into the space with no ductwork at zero ESP. (AHRI, No. 12 at pp. 6-7; WaterFurnace, No. 7 at pp. 5-6) AHRI added that such non-ducted WSHPs typically include a tangential blower (similar to packaged terminal air conditioners) meant for low-static operation and free discharge into the conditioned space. (AHRI, No. 12 at pp. 6-7) Trane commented that motor horsepower and fan size are designed to deliver zero ESP for non-ducted units and that units that are required to be ducted will require a different motor horsepower and fan size. (Trane, No. 8 at p. 4)
Additionally, AHRI and Trane pointed out that WSHPs are certified to AHRI as either “ducted” or “non-ducted” and that the equipment is tested to the appropriate section of ISO 13256-1:1998. AHRI and WaterFurnace commented that there are no known WSHP models designed for both ducted and non-ducted application. (AHRI, No. 12 at pp. 6-7; WaterFurnace, No. 7 at pp. 5-6) In contrast, Trane stated that although it does not offer any equipment that can be installed as either ducted or non-ducted, there is a selection of WSHP equipment that is designed for both ducted and non-ducted applications. (Trane, No. 8 at pp. 3-4)
Consistent with AHRI's, WaterFurnace's, and Trane's comments, DOE has identified some WSHPs, marketed as “console units,” which would operate without a duct. As noted previously, AHRI 340/360-2022 does not have any instructions for setting up airflow and ESP for non-ducted units. (AHRI 340/360-2022 is the industry test procedure for testing CUACs and there are no non-ducted CUACs.) Section 4.1.5 of ISO 13256-1:1998 and section 5.1.5 of ISO 13256-1:2021 include provisions for setting airflow for non-ducted units at zero ESP, but the provisions in ISO 13256-1:1998 and ISO 13256-1:2021 do not specify the settings to use or how to address situations in which test procedure instructions are missing or conflict (also see discussion in section III.F.1.b of this NOPR). Therefore, DOE has tentatively concluded that specific provisions for non-ducted WSHPs are warranted.
To address testing of non-ducted WSHPs, DOE proposes separate provisions for setting airflow and ESP for non-ducted units in section 3.1 of proposed appendix C1. Consistent with ISO 13256-1:1998 and ISO 13256-1:2021, DOE proposes that non-ducted units be tested at zero ESP, because non-ducted units would not be installed with ductwork in the field. DOE proposes that these provisions would apply to all units that are not configured exclusively for delivery of conditioned air to the indoor space without a duct(s). Units that are configured for delivery of conditioned air to the indoor space without a duct(s) would be required to use the provisions for setting airflow and ESP in section 6.1.3 of AHRI 340/360-2022 and section 3.2 of proposed appendix C1, as applicable.
DOE is proposing in section 3.1 of proposed appendix C1 that WSHP units that are not configured exclusively for delivery of conditioned air to the indoor space without a duct(s) would be tested with a target ESP of 0.00 in H
DOE has tentatively determined that these provisions would provide a representative and repeatable test procedure for non-ducted WSHPs, and that they would be appropriate for testing WSHPs because they are the generally accepted industry method used for testing similar equipment such as SPVUs. This proposed approach remedies some of the shortcomings identified with the current WSHP test procedure which incorporates by reference ISO 13256-1:1998.
Issue 13: DOE requests comment on its proposal for setting airflow and ESP for non-ducted WSHP units.
The current DOE test procedure, through adoption of section 6.1 of ISO 13256-1:1998, specifies that total cooling and heating capacities are to be determined by averaging the results obtained using two test methods: the liquid enthalpy test method for the liquid side tests and the indoor air enthalpy test method for the air side tests. For non-ducted equipment, section 6.1 of ISO 13256-1:1998 includes an option for conducting the air-side tests using the calorimeter room test method instead of the air enthalpy test method. Section 6.1 of ISO 13256-1:1998 also specifies that, for a test to be valid, the results obtained by the two methods used must agree within 5 percent.
In the June 2018 RFI, DOE discussed how ANSI/ASHRAE 37-2009 is similar to the test method in ISO 13256-1:1998, and that DOE was considering whether testing to ANSI/ASHRAE 37-2009 would be appropriate for WSHPs. DOE further discussed how ANSI/ASHRAE 37-2009 requires two capacity measurements for units with cooling capacity less than 135,000 Btu/h; the first method of measurement (
In the June 2018 RFI, DOE requested information on whether one of the two capacity measurements prescribed in ISO 13256-1:1998 gives a consistently higher or lower result than the other, or whether one of the methods can be considered more accurate for a range of different WSHP configurations and models.
Trane commented that the capacity value measured by the liquid enthalpy method is generally higher than the value measured by the indoor air enthalpy method, stating that air-side measurements have more opportunity for losses than water-side measurements. (Trane, No. 8 at p. 5) AHRI and WaterFurnace commented that the water side test is generally simpler to conduct and also more accurate than the air enthalpy method, because the uncertainties of measurement are much lower in the water-side calculations. (AHRI, No. 12 at p. 13; WaterFurnace, No. 7 at p. 11)
AHRI, Trane, and WaterFurnace recommended continuing to use the average of the air-side and water-side measurements as the basis for capacity ratings. (AHRI, No. 12 at p. 13; Trane, No. 8 at p. 5; WaterFurnace, No. 7 at p. 11) AHRI and WaterFurnace stated that the current approach in ISO 13256-1:1998 represents a compromise that helps ensure best testing procedures. (AHRI, No. 12 at p. 13; WaterFurnace, No. 7 at p. 11) AHRI argued that the ANSI/ASHRAE 37-2009 approach does not yield more representative ratings compared to the ISO 13256-1:1998 method. (AHRI, No. 12 at p. 13) Trane further asserted that the average of the methods is more accurate than the measurement from either single method alone. (Trane, No. 8 at p. 5) AHRI and WaterFurnace also stated that ANSI/ASHRAE 37-2009 does not include the liquid enthalpy method of test required on the source side for all WSHPs. (AHRI, No. 12 at p. 13; WaterFurnace, No. 7 at p. 10)
In response, DOE notes first that the capacity measurement provisions in section 7.1 of ISO 13256-1:2021 differ from those in section 6.1 of ISO 13256-1:1998 in several ways. Instead of averaging the two capacity measurements, section 7.1 of ISO 13256-1:2021 specifies that the capacity rating is equal to the value determined from the air side (referred to as the load side in ISO 13256-1:2021), consistent with the approach used in section 10.1.2 of ANSI/ASHRAE 37-2009. ISO 13256-1:2021 also does not allow use of the calorimeter method in place of the indoor air enthalpy method for measuring capacity on the load side, but section 7.1 of ISO 13256-1:2021 allows use of the refrigerant enthalpy method for configurations that cannot use the indoor air enthalpy method. Section 7.1 of ISO 13256-1:2021 continues to require the liquid enthalpy method for measuring capacity on the liquid side (referred to as the source side in ISO 13256-1:2021). Section 7.1 of ISO 13256-1:2021 also continues to require the two capacity measurements to agree within 5 percent for the test to be valid.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 for use in the WSHP test procedure, including section E6, which specifies test methods for capacity measurement. Section E6.1 of AHRI 340/360-2022 requires use of the indoor air enthalpy method specified in section 7.3 of ANSI/ASHRAE 37-2009 as the primary method for capacity measurement. This is the measurement used to determine capacity, as required in section 10.1.2 of ANSI/ASHRAE 37-2009. Section E6.2.2 of AHRI 340/360-2022 requires use of one of the applicable “Group B” methods specified in Table 1 of ANSI/ASHRAE 37-2009 as a secondary method for capacity measurement. The group B methods that are applicable to WSHPs are the outdoor liquid coil method (similar to the liquid enthalpy method included in the 1998 and 2021 versions of ISO 13256-1), the refrigerant enthalpy method, and the compressor calibration method. Section E6.4.2 of AHRI 340/360-2022 requires that the primary and secondary measurements match for full-load cooling and heating tests, within 6 percent of the primary measurement. No match is required between primary and secondary measurements for part-load cooling tests.
Regarding commenters' claims that ANSI/ASHRAE 37-2009 does not include the liquid enthalpy method of test required on the source side for all WSHPs, as discussed, ANSI/ASHRAE 37-2009 does include a liquid enthalpy method of test. The liquid enthalpy method is referred to as the outdoor liquid coil method in section 7 of ANSI/ASHRAE 37-2009, and it provides a measurement of liquid enthalpy that is similar to the measurement provided by the liquid enthalpy method in normative appendix C of ISO 13256-1:1998. As discussed, Table 1 of ANSI/ASHRAE 37-2009 specifies three secondary capacity measurement methods (
As part of DOE's proposal generally to adopt the test provisions in section E6 of AHRI 340/360-2022, DOE is proposing to adopt the provisions for measuring capacity in AHRI 340/360-2022 instead of those in section 6.1 of ISO 13256-1:1998. Using the indoor air enthalpy measurement as the measurement of capacity ensures that actual output of the WSHP—the cooling or heating of air—is used as the measure of capacity. The approach used in section 6.1 of ISO 13256-1:1998, in which the indoor air enthalpy measurement is averaged with the liquid enthalpy measurement, has the potential to result in capacity values that are higher than the actual delivered capacity because of heat transfer to/from the ambient air (either through heat transfer through the WSHP cabinet walls or air leakage). This potential is consistent with Trane's comment that the capacity value measured by the liquid enthalpy method is generally higher than the value measured by the indoor air enthalpy method. In addition,
The proposed provisions do not permit use of the calorimeter method or refrigerant enthalpy method in place of the indoor enthalpy method, which is allowed in section 6.1 of ISO 13256-1:1998 and section 7.1 of ISO 13256-1:2021. However, DOE has tentatively concluded that alternatives to the indoor air enthalpy method are not necessary because DOE is not aware of any WSHPs that are unable to use the indoor enthalpy method as specified in ANSI/ASHRAE 37-2009 (with additional provisions in AHRI 340/360-2022).
The proposed provisions also allow a difference in capacity measurements of up to 6 percent in section E6.4.2 of AHRI 340/360-2022 instead of the 5 percent allowed in section 6.1 of ISO 13256-1:1998. DOE has tentatively concluded that this reduces burden while still ensuring accurate measurements of indoor air enthalpy. Once again, this proposal is consistent with the industry test procedures for other categories of air conditioning and heating equipment (
Issue 14: DOE requests comment on its proposed approach to adopt the provisions in AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 regarding primary and secondary capacity measurements.
DOE has identified split-system WSHPs available on the market. For at least one of these split systems WSHPs, the unit containing the compressor is intended for either indoor or outdoor installation. The installed location of the compressor, in relation to the conditioned space and other system components, impacts the capacity of a WSHP system and the provisions necessary for accurately measuring system capacity due to the generation of heat during compressor operation.
As discussed in section III.F.2.a of this NOPR, the current DOE test procedure, through adoption of ISO 13256-1:1998, requires use of two methods to measure space-conditioning capacity provided by a WSHP. One of these methods, the indoor air enthalpy method (see normative annex B of ISO 13256-1:1998), measures capacity directly by measuring mass flow and enthalpy change of the indoor air.
The liquid enthalpy adjustment in sections C3.1 and C3.2 of ISO 13256-1:1998 assumes that all compressor heat is absorbed and ultimately transferred to the conditioned space, thereby increasing heating capacity or decreasing cooling capacity. However, this fails to account for any heat transferred from the compressor or other components to their surroundings that does not contribute to space conditioning. For example, in the case of a split-system WSHP with an uninsulated compressor/liquid coil section installed outdoors, the air that absorbs compressor heat would not directly affect the conditioned space. In this case, adding or subtracting the entire compressor input power to or from the capacity calculated based on liquid temperature change likely overestimates the impact of compressor power input on the indoor-side capacity that is calculated using the liquid enthalpy-based method.
In the June 2018 RFI, DOE requested comment on whether there are split-system WSHP models on the market for which the unit containing the compressor is intended only for outdoor installation or only for indoor installation. DOE further requested comment on manufacturers' practices for testing split-system WSHPs for which the compressor is not housed in the section containing the indoor refrigerant-to-air coil, including which test rooms are used for the compressor section, and whether any adjustments are made to properly account for the compressor heat. 83 FR 29048, 29053 (June 22, 2018).
In response to DOE's requests for comment, AHRI, Trane, and WaterFurnace commented that accounting for compressor heat would not be a relevant issue because there are very few, if any, split-system WSHPs in the commercial market. (AHRI, No. 12 at p. 13; Trane, No. 8 at p. 5; WaterFurnace, No. 7 at pp. 11-12) The CA IOUs commented that, based on the AHRI directory, 90 percent of WSHPs are single-package units. (CA IOUs, No. 9 at p. 2)
As stated previously, DOE has identified a number of split-system WSHPs, several of which are certified in the DOE Compliance Certification Database, and the Federal test procedure
Sections D.4 and D.5 of ISO 13256-1:2021 use the same adjustment of the liquid enthalpy method as sections C3.1 and C3.2 of ISO 13256-1:1998. Thus, ISO 13256-1:2021 provides no additional methods to address compressor heat for split systems with the compressor in the liquid coil section.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009. Sections 6.1.3 and 6.1.5 of ANSI/ASHRAE 37-2009 contain provisions for addressing compressor heat in the indoor air enthalpy method that are similar to the provisions in sections F7.3 and F7.5 of ISO 13256-1:1998. For secondary capacity measurements, however, ANSI/ASHRAE 37-2009 has provisions that go beyond the provisions in ISO 13256-1:1998 to ensure that capacity is measured more accurately than it is by ISO 13256-1:1998, as discussed in the following paragraphs.
Section 7.6 of ANSI/ASHRAE 37-2009 includes a liquid enthalpy measurement method (referred to as the
For split-system WSHPs for which the outdoor liquid coil method in ANSI/ASHRAE 37-2009 cannot be used (
Based on the discussion in the prior paragraphs, DOE tentatively concludes that the proposed test procedure would provide an accurate secondary measure of capacity for all equipment configurations and would provide a more representative secondary measure of capacity than ISO 13256-1:1998 or ISO 13256-1:2021 for split systems with the compressor mounted in the outdoor section.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs, including section 6.2.3.2 of that industry standard. Equation 4 in section 6.2.3.2 of AHRI 340/360-2022 is used to calculate part-load EER for a unit that needs to cycle in order to meet the 75-percent, 50-percent, and/or 25-percent load conditions required for the IEER metric. Cycling is the term used to describe the process in which a unit's compressor is repeatedly turned off and on in order to meet a load that is lower than the unit's capacity at its lowest compressor stage.
Equation 4 of AHRI 340/360-2022 multiplies only the compressor power and condenser section power by the load factor and the coefficient of degradation, while the indoor fan power and controls power are not multiplied by these variables. This means that equation 4 of AHRI 340/360-2022 assumes that the indoor fan continues to operate when the compressor cycles off. DOE understands that the draft of AHRI 600 has an equation similar to equation 4 of AHRI 340/360-2022, but the equation in draft of AHRI 600 assumes that the indoor fan stops operating whenever the compressor cycles off.
As discussed previously in section III.E.4 of this NOPR, stakeholders provided comment regarding the operation of a WSHP, including operation of the fan, in modes other than mechanical heating and cooling. (AHRI, No. 12 at pp. 4-5, 9; WaterFurnace, No. 7 at pp. 3, 9; Trane, No. 8 at pp. 2, 5) These comments on fan operation specifically referred to operation when there is no heating or cooling, but they might also be applicable to the issue of fan operation during compressor cycling under part-load conditions. Certain comments indicated that it is common for WSHP fans to operate continuously to provide air circulation or ventilation air. (AHRI, No. 12 at pp. 4-5; WaterFurnace, No. 7 at p. 3) Continuous operation of WSHP fans indicates that the fan would continue to run when the compressor cycles off.
In addition, the cyclic degradation approach used in equation 4 of AHRI 340/360-2022 is used in the IEER metric for multiple other categories of commercial HVAC equipment, indicating that it is common for the indoor fan to continue operating while the compressor cycles off. AHRI 340/360-2022 is used for testing CUAC/HPs, and equation 4 of AHRI 340/360-2022 is equivalent to equation 10 of AHRI 1230-2021 (which is used for testing VRF multi-split systems) and equation 3 of AHRI 390-2021 (which is used for testing SPVUs). These other equipment categories typically operate in similar environments to WSHPs (
For the foregoing reasons, DOE has tentatively concluded that the cyclic degradation approach in equation 4 of AHRI 340/360-2022 is representative of WSHP operation. Therefore, DOE is proposing to adopt the approach in AHRI 340/360-2022 in proposed appendix C1. DOE is also proposing in section 5.1.2.5.4 of proposed appendix C1 that the same approach for cyclic degradation be used when determining IEER through interpolation and extrapolation (see discussion in section III.E.1.b of this NOPR).
Due to the nature of the method to determine IEER through the proposed interpolation and extrapolation in section 5.1.2 of proposed appendix C1, each component of the cyclic degradation equation in proposed section 5.1.2.5.4 of proposed appendix C1 (
Issue 15: DOE requests comment on the proposal to adopt the cyclic degradation equation specified in section 6.2.3.2 of AHRI 340/360-2022 for WSHPs, which assumes continuous indoor fan operation when the compressor cycles off.
As described in section III.D.2 of this NOPR, the efficiency calculations in ISO 13256-1:1998 include only the liquid pump power required to overcome the internal resistance of the unit; pump power required to overcome ESP of the water loop is not included in the effective power input. ISO 13256-1:1998 also does not specify a minimum liquid ESP during testing for units with integral pumps. For units without integral pumps, the pump power adjustment in ISO 13256-1:1998 estimates pump power at zero liquid external static pressure.
In the June 2018 RFI, DOE requested information on typical ESP values for the liquid pump and if any allowance for external pressure drop should be considered in the efficiency metric. 83 FR 29048, 29050 (June 22, 2018). On this topic, AHRI, Trane, and WaterFurnace stated that integral pumps are rare but can be found on some residential WSHPs. (AHRI, No. 12 at p. 6; Trane, No. 8, at p. 3; WaterFurnace, No. 7 at p. 5) AHRI and Trane further stated that because nearly all WSHPs do not have an integral pump, pump power to overcome liquid ESP should not be considered in the efficiency metric. (AHRI, No. 12 at p. 6; Trane, No. 8, at p. 3)
As discussed previously, since the June 2018 RFI, ISO 13256-1 was updated. However, the pump power and liquid ESP provisions in sections 5.1.4 and 5.1.6 of ISO 13256-1:2021 are the same as those in sections 4.1.4 and 4.1.6 of ISO 13256-1:1998.
In response to comments, DOE notes that all WSHPs are installed with liquid loops such that a pump (either integral to the WSHP or a separate part of the water loop) must overcome external resistance from the liquid loop. Therefore, as described in section III.D.2 of this NOPR, DOE has tentatively concluded that efficiency metrics that reflect the power needed for the liquid pump to overcome a representative liquid ESP would be more representative than metrics that only include the pump power needed to overcome the internal static pressure of the WSHP (as is the case in efficiency metrics determined per ISO 13256-1:1998 and ISO 13256-1:2021). DOE has identified several WSHPs with integral pumps and has, therefore, tentatively determined that provisions for testing units with integral pumps, including liquid ESP requirements, are warranted. Even though most WSHP models do not include integral pumps, as discussed, such models are installed with system pumps that must overcome external resistance of the water loop, and thus, including pump power to overcome a representative liquid ESP in the efficiency metrics for all WSHPs provides a more representative measure of field energy use. DOE has also tentatively determined that representative ratings for WSHPs with and without integral pumps should reflect the same level of liquid ESP (
As such, in this NOPR, DOE is proposing provisions to account for the power to overcome a representative liquid ESP for WSHPs with and without integral pumps. As described in section III.D.3 of this document, DOE is proposing generally to incorporate by reference AHRI 340/360-2022 as the test procedure for WSHPs. Section 6.1.1.7 of AHRI 340/360-2022 specifies that for WCUACs with cooling capacity less than 135,000 Btu/h, an adder of 10 W per 1,000 Btu/h cooling capacity must be added to the power of WCUACs to account for cooling tower fan motor and circulating water pump power consumption. However, AHRI 340/360-2022 does not specify how to test units with integral pumps. Because the provisions in section 6.1.1.7 of AHRI 340/360-2022 do not specify the level of liquid ESP that correspond to the specified adder, it is unclear what test provisions for units with integral pumps would align with the AHRI 340/360-2022 provisions. Further, DOE has tentatively concluded that pump power to overcome a representative liquid ESP should also be accounted for in WSHPs with cooling capacity greater than 135,000 Btu/h.
In the course of such review, DOE found that AHRI Standard 920-2020, “Performance Rating of Direct Expansion-Dedicated Outdoor Air System Units” (“AHRI 920-2020”), includes a pump power adder (referred to as “water pump effect” in AHRI 920-2020) for water-source DOASes without integral pumps. Specifically, section 6.1.6.4 of AHRI 920-2020 specifies that the pump power adder is calculated with an equation dependent on the water flow rate and liquid pressure drop across the heat exchanger, including a term that assumes a liquid ESP of 20 ft head. However, AHRI 920-2020 does not include provisions specific to testing water-source DOASes with integral pumps. In a test procedure final rule for DOASes published in the
DOE understands that water-source DOASes and WSHPs are generally installed in similar types of commercial building applications that include water loops with similar external liquid ESPs (
For units without integral pumps, DOE is proposing to require in section
By accounting for liquid ESP conditions encountered during field use, DOE has tentatively concluded that the proposals would make the resulting efficiency metrics more representative of an average use cycle than the efficiency metrics calculated in ISO 13256-1:1998 and ISO 13256-1:2021.
Issue 16: DOE requests comment on the proposed provisions to account for pump power to overcome both internal pressure drop and a representative level of liquid ESP for WSHPs with and without integral pumps. DOE specifically requests comment on the representativeness of 20 ft of water column as the liquid ESP for WSHPs.
The current DOE WSHP test procedure, through adoption of section 4.1.9 of ISO 13256-1:1998, requires the test liquid for water-loop heat pumps and ground-water heat pumps to be water, and the test liquid for ground-loop heat pumps to be a 15 percent solution by mass of sodium chloride in water (
In the June 2018 RFI, DOE requested comment on whether a standard value or calculation method for the specific heat capacity of water should be specified in the WSHP test procedure. If a standard value should be specified, DOE requested comment on what value should be used. 83 FR 29048, 29053 (June 22, 2018).
In response to DOE's request for comment, AHRI, Trane, and WaterFurnace commented that the then draft revision of ISO 13256-1:1998 included an annex for addressing the specific heat capacity of water when using the liquid enthalpy method. These commenters further added that antifreeze use is common in WSHPs. They stated that the then-draft revision of ISO 13256-1:1998 allows innovation by not prescribing a particular antifreeze composition or concentration, but the draft standard requires input as to the relevant thermal properties of the test fluid for the proper calculation of heat capacity. (Trane, No. 8 at p. 5; AHRI, No. 12 at pp. 13-14; WaterFurnace, No. 7 at p. 12)
Section 5.1.7 of ISO 13256-1:2021 requires that the test liquid for the low temperature heating test (
In response to these considerations and comments, DOE is proposing in section 4.1 of proposed appendix C1 that the test liquid for all tests other than the proposed optional “HFL3”
DOE has tentatively concluded that a 15-percent solution by mass of sodium chloride, as specified in section 4.1.9.2 of ISO 13256-1:1998, is a representative brine composition and concentration for applications needing brine (
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009, in which section 12.2.1 requires that thermodynamic properties of liquids be obtained from the ASHRAE Handbook—Fundamentals.
Issue 17: DOE requests comment on the proposed requirements for using water or a brine of 15-percent solution by mass of sodium chloride as the test liquid. DOE also requests comment on the representativeness and test burden associated with permitting the use of different liquids for different tests.
Issue 18: DOE requests comments on the proposal to utilize the thermodynamic properties specified in ANSI/ASHRAE 37-2009 through DOE's proposed incorporation by reference of AHRI 340/360-2022.
The current DOE test procedure, through adoption of section 4.1.6.2 of ISO 13256-1:1998, requires units with an integral liquid pump to be tested at the liquid flow rates specified by the manufacturer or those obtained at zero ESP difference, whichever provides the lower liquid flow rate. Section 4.1.6.3 of
In contrast to the ISO 13256-1:1998 approach, DOE noted in the June 2018 RFI that AHRI 340/360-2007 does not use a manufacturer-specified liquid flow rate, and instead specifies inlet and outlet water temperatures for WCUACs to be 85 °F and 95 °F, respectively, for standard-rating full-capacity operation. The temperature difference between inlet and outlet determines the liquid flow rate for the test. 83 FR 29048, 29054 (June 22, 2018).
In the June 2018 RFI, DOE requested comment on how manufacturers are selecting water flow rates when testing WSHPs in cases where multiple flow rates are provided in product literature. DOE further requested comment on what the typical water temperature rise during testing is and whether the typical test temperature rise is representative of field operation.
In response to DOE's request for comment, AHRI discussed how the AHRI certification program requires a flow rate to be certified, and that the flow rate is available on the product certificate and also in the supplemental PDF. AHRI stated that certified flow rate makes clear which points to use for testing WSHPs, if multiple flow rates are provided in the product literature. (AHRI, No. 12 at p. 15) Trane commented that only one water flow rate is used to set the rating point of each WSHP basic model, and that any other water flow rates provided in the catalog literature are simply other application points for customers to use. (Trane, No. 8 at p. 5)
Trane commented that typical values of flow rate and temperature rise are 3 gallons per minute (“GPM”) per ton and a 10 °F temperature rise in cooling mode. (Trane, No. 8 at p. 5) AHRI and WaterFurnace stated that a typical rated water flow rate is 3 GPM/ton and field application flow rates are typically 2.25-3 GPM/ton, and that this range results in a field temperature rise of 9-14 °F for water-loop applications. (AHRI, No. 12 at p. 14; WaterFurnace, No. 7 at p. 13)
Further, AHRI and WaterFurnace stated that the current test procedure (which does not specify the outlet water temperature) allows the manufacturer to design a more suitable and efficient system by having the freedom to innovate systems that perform more efficiently with lower pressure drop or perhaps a heat exchanger allowing a high flow rate but lower pressure drop. (AHRI, No. 12 at p. 14; WaterFurnace, No. 7 at p. 13) AHRI also stated that for PSC pump motors,
Sections 5.1.6.3 and 5.1.6.4 of ISO 13256-1:2021 include provisions for setting water flow rate that are equivalent to the provisions in sections 4.1.6.2 and 4.1.6.3 of ISO 13256-1:1998. However, DOE is concerned that these provisions of ISO 13256-1 have the potential to allow manufacturers to specify very high flow rates that may not be representative of field operation. An overly high flow rate would result in a liquid temperature rise that is lower than what is representative of field operating conditions and a liquid heat transfer efficiency that is higher than what is representative of field operation. In addition, this would result in a measured efficiency that is higher than what is representative. Section 4.1.6.2 of ISO 13256-1:1998 specifies that the flow rate for integral pumps can be no higher than the flow rate resulting in zero liquid ESP, but this does not ensure that the resulting flow rate is representative of field use. For units without integral pumps, ISO 13256-1:1998 has no limits on flow rate.
In consideration of the preceding information and public comments, DOE proposes the following. As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs, including Table 6. Table 6 of AHRI 340/360-2022 specifies inlet and outlet liquid temperatures of 85 °F and 95 °F, respectively, for standard-rating cooling full-capacity operation. This requires that liquid flow rate for the full-load cooling test is set at a level that results in a 10 °F temperature rise from the 85 °F inlet to the 95 °F outlet temperature.
DOE notes that Trane commented that a 10 °F temperature rise is typical of field operation, and AHRI and WaterFurnace commented that a 9-14 °F temperature rise is typical. (Trane, No. 8 at p. 5; AHRI, No. 12 at p. 14; WaterFurnace, No. 7 at p. 13) These comments indicate that the temperature rise specified in Table 6 of AHRI 340/360-2022 is representative of field operation. In addition, specifying a fixed temperature rise for all WSHPs ensures that all models are tested with a temperature rise that is representative of field operating conditions. Therefore, DOE has tentatively concluded that testing with the required temperature rise specified in Table 6 of AHRI 340/360-2022 would produce more representative results than allowing manufacturers to continue specifying a liquid flow rate.
Regarding WaterFurnace's comment on the need for a manufacturer-specified flow rate for the pump power correction, DOE is not proposing in section III.F.4 of this NOPR to adopt the pump power correction specified in the 1998 and 2021 versions of ISO 13256-1; instead, DOE is proposing to include pump power to overcome a representative liquid ESP in the calculation of WSHP efficiency (see discussion in section III.F.4 of this NOPR). As a result, DOE has tentatively concluded that DOE's proposed approach for setting liquid flow rate would not add any additional complication to certification.
Regarding AHRI's and WaterFurnace's comment that the use of manufacturer-specified flow rates allows innovation in design, DOE has tentatively concluded that setting full-load liquid flow rate based on a 10 °F temperature rise would not impede the ability of manufacturers to innovate. The requirements of the DOE test procedure place no requirements on the design of a WSHP; they only specify requirements used to measure the performance of WSHPs in conditions that are representative of an average use cycle. As discussed, commenters stated that 10 °F is within the range of temperature rise values that is representative of water-loop applications. Therefore, DOE has tentatively concluded that setting full-load liquid flow rate to achieve a 10 °F temperature rise would ensure that all WSHPs are tested with a full-load flow rate that is representative of an average use cycle.
For the method of calculating IEER through interpolation and extrapolation, DOE is proposing in section 5.1.2 of
Issue 19: DOE requests comment on its proposal to adopt the AHRI 340/360-2022 approach for setting liquid flow rate for the full-load cooling test, namely by specifying inlet and outlet liquid temperature conditions rather than using a manufacturer-specified flow rate.
In this NOPR, DOE is specifying part-load testing as part of the IEER test metric (see section III.E.1 of this NOPR), so provisions are necessary for determining the liquid flow rate to use during part-load tests. Table 9 of AHRI 340/360-2022 specifies use of manufacturer-specified part-load water flow rates for part-load tests. This is similar to the requirements in sections 4.1.6.2 and 4.1.6.3 of ISO 13256-1:1998 and sections 5.1.6.3 and 5.1.6.4 of ISO 13256-1:2021, which specify testing at manufacturer-specified flow rates for all tests (see also discussion in section III.F.6.a of this NOPR). Therefore, DOE is proposing to incorporate by reference Table 9 of AHRI 340/360-2022 and also to state in sections 5.1.1 and 5.1.2.1.2 of appendix C1 the requirements (from Table 9 of AHRI 340/360-2022) for setting part-load liquid flow rate. These requirements apply to both IEER determination methods specified in appendix C1 (
Section E7 of AHRI 340/360-2022, which addresses units with condenser head pressure control, states that part-load liquid flow rate shall not exceed the liquid flow rate used for the full-load tests. This requirement is not stated anywhere else in AHRI 340/360-2022, but DOE has tentatively concluded that it provides a valuable control on the upper limit of liquid flow rates for part-load tests. As a result, DOE is proposing in sections 5.1.1 and 5.1.2.1.2 of appendix C1 that this requirement apply to all part-load tests for WSHPs.
AHRI 340/360-2022 does not specify the liquid flow rate to use when the unit is operating at part load should the manufacturer not provide one. Therefore, DOE is proposing in sections 5.1.1 and 5.1.2.1.2 of appendix C1 to use the liquid flow rate from full-load testing if the manufacturer does not specify a part-load liquid flow rate.
Issue 20: DOE requests feedback on its proposals to use manufacturer-specified part-load liquid flow rates for part-load tests, that the part-load flow rate be no higher than the full-load flow rate, and to use the full-load liquid flow rate if no part-load liquid flow rate is specified.
Consistent with the proposal in section III.F.6.a of this NOPR for a method of determining full-load cooling liquid flow rate of WSHPs based on outlet water temperature, rather than using a manufacturer-specified flow rate as specified by the current Federal test procedure, DOE is proposing provisions for setting liquid flow rate during heating tests. More specifically, DOE is proposing that the liquid flow rate determined from the full-load cooling test be used for all heating tests. DOE has tentatively concluded that full-load heating flow rates would generally be the same as full-load cooling flow rates for WSHPs installed in field applications, as the compressor(s) would be operating at full load in both cases. Therefore, DOE has tentatively concluded that the liquid flow rate used for the full-load cooling test is a representative flow rate to use for heating tests.
Specifically, DOE is proposing to specify in section 6.1 of proposed appendix C1 that if IEER is determined using option 1 in section 5.1 of proposed appendix C1, the liquid flow rate determined from the “Standard Rating Conditions Cooling” test for water-cooled equipment, as defined in Table 6 of AHRI 340/360-2022, must be used for all heating tests. If IEER is determined using option 2 in section 5.1 of proposed appendix C1, DOE is proposing in section 5.1.2.1.1 of proposed appendix C1 to use the liquid flow rate determined from the CFL3 high temperature cooling test for all heating tests.
Issue 21: DOE requests comment on its proposal to use the liquid flow rate determined from the full-load cooling test for all heating tests.
Table 9 of ISO 13256-1:1998 and Table 11 of ISO 13256-1:2021 both include an operating tolerance of 2 percent and a condition tolerance of 1 percent for the liquid flow rate of WSHPs.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009. Table 11 of AHRI 340/360-2022 includes an operating tolerance of 2 percent for liquid flow rate, but neither AHRI 340/360-2022 nor ANSI/ASHRAE 37-2009 include a condition tolerance on liquid flow rate.
It is DOE's understanding that a condition tolerance is needed for all tests with a target liquid flow rate. As discussed in sections III.F.6.a through III.F.6.c of this NOPR, DOE is proposing that the full-load cooling test (if using option 1 for determining IEER, the “standard rating conditions cooling” test in Table 5 of AHRI 340/360-2022; if using option 2 for determining IEER, the “CFL3 high temperature” test in Table 2 of appendix C1) would be conducted with a liquid flow rate determined via a specified temperature rise rather than via a target liquid flow rate, while other cooling tests and all heating tests would have target liquid flow rates (manufacturer-specified for part-load cooling tests, and a target flow rate the same as the flow rate determined from the full-load cooling test for all other cooling and heating tests). Therefore, DOE is proposing a liquid flow rate condition tolerance that applies for all tests with target liquid flow rates (
Specifically, DOE is proposing to require in sections 5.1.1, 5.1.2.1.2, and 6.1 of appendix C1 a condition tolerance of 1 percent for liquid flow rate, consistent with the condition tolerance specified in Table 9 of ISO 13256-1:1998. This requirement is in addition to DOE's proposed adoption of Table 11 of AHRI 340/360-2022, which specifies an operating tolerance of 2 percent for liquid flow rate.
Issue 22: DOE requests comment on its proposal to specify an operating tolerance of 2 percent and a condition tolerance of 1 percent for liquid flow
Split-system WSHPs have refrigerant lines that can transfer heat to and from their surroundings, which can incrementally affect measured capacity. To account for this transfer of heat (referred to as “line losses”), the current DOE test procedure, through adoption of ISO 13256-1:1998, provides that if line loss corrections are to be made, they shall be included in the capacity calculations (in section B4.2 for the indoor air enthalpy method and in section C3.3 for the liquid enthalpy test method of ISO 13256-1:1998). ISO 13256-1:1998 does not specify the circumstances that require line loss corrections nor the method to use to determine an appropriate correction.
Section 7.3.3.4 of ANSI/ASHRAE 37-2009, the method of test referenced in AHRI 340/360-2022, specifies more detailed provisions to account for line losses of split systems in the outdoor air enthalpy method, and section 7.6.7.1 of ANSI/ASHRAE 37-2009 specifies to use the same provisions for the outdoor liquid coil method.
In the June 2018 RFI, DOE requested comment on whether the provisions for line losses in ANSI/ASHRAE 37-2009 would be appropriate for testing WSHPs. Furthermore, DOE requested comment on what modifications to ISO 13256-1:1998 might be necessary to further address line losses and how manufacturers of split-system WSHPs currently incorporate line loss adjustments into both heating and cooling capacity calculations. 83 FR 29048, 29052-29053 (June 22, 2018).
In commenting on DOE's June 2018 RFI, AHRI, Trane, and WaterFurnace stated that refrigerant line losses would not be a relevant issue because there are very few, if any, split-system WSHPs in the commercial market. (AHRI, No. 12 at p. 13; Trane, No. 8 at p. 5; WaterFurnace, No. 7 at pp. 11-12)
Section E.3.3 of ISO 13256-1:2021 contains the same statement about line loss correction as sections B4.2 and C3.3 in ISO 13256-1:1998. Thus, ISO 13256-1:2021 contains no additional provisions regarding line loss corrections.
As stated previously, DOE has identified a number of split-system WSHPs, several of which are certified in the DOE Compliance Certification Database, and the Federal test procedure
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009. As described earlier in this section, section 7.6.7.1 of ANSI/ASHRAE 37-2009 specifies to use the provisions in section 7.3.3.4 of ANSI/ASHRAE 37-2009 for making line loss adjustments when using the outdoor liquid coil method. Section 7.3.3.4 of ANSI/ASHRAE 37-2009 specifies calculations for determining the line losses for bare copper or insulated lines. The absence of provisions in ISO 13256-1:1998 for how to determine refrigerant line losses creates the potential for variation in measured values based on how line losses are determined. To minimize any such variation, DOE is proposing to adopt the relevant provisions in ANSI/ASHRAE 37-2009. DOE has tentatively determined that the specifications in ANSI/ASHRAE 37-2009 would be appropriate for testing WSHPs because they are the generally accepted industry method used for testing similar equipment, such as WCUACs.
Issue 23: DOE requests comments on the proposal to adopt the provisions for line loss adjustments included in sections 7.6.7.1 and 7.3.3.4 of ANSI/ASHRAE 37-2009 through incorporation by reference of AHRI 340/360-2022.
The current DOE WSHP test procedure, through adoption of section D.1 of ISO 13256-1:1998, requires airflow measurements to be made in accordance with the provisions specified in several different industry test standards, “as appropriate.”
Section F8 of ISO 13256-1:1998 specifies the requirements for the nozzle apparatus used to measure airflow. This device determines airflow by measuring the change in pressure across a nozzle of known geometry. Airflow derivations using this approach often include a discharge coefficient (
Section F8.9 of ISO 13256-1:1998 specifies that it is preferable to calibrate the nozzles in the nozzle apparatus, but that nozzles of a specific geometry may be used without calibration and by using the appropriate discharge coefficient specified in a lookup table in section F8.9 of ISO 13256-1:1998. ISO 13256-1:1998 does not specify the method that should be applied, however, to determine the coefficient of discharge for conditions that do not exactly match the values provided in the look-up table.
Elsewhere, sections 6.2 and 6.3 of ANSI/ASHRAE 37-2009 includes provisions regarding the nozzle airflow measuring apparatus that are identical to the provisions in section F8 of ISO 13256-1:1998, except for the method used to determine the coefficient of discharge. Section 6.3.3 of ANSI/ASHRAE 37-2009 uses a calculation in place of the look-up table used in ISO 13256-1:1998, thereby allowing determination of the coefficient of discharge at any point within the specified range.
In the June 2018 RFI, DOE requested comment on which of the methods specified in ISO 13256-1:1998 (
On this topic, AHRI, Trane, and WaterFurnace commented that manufacturers generally calibrate each nozzle to determine the coefficient of discharge, consistent with the ISO 13256-1:1998 conditions. These commenters also stated that most manufacturers use air tunnels for airside measurements based upon ANSI/ASHRAE 37-2009 and ANSI/AMCA Standard 210-16,
To the point raised by commenters, Annex B of ISO 13256-1:2021 specifies requirements for airflow measurement and nozzle apparatus that are consistent with the requirements in section F8 of ISO 13256-1:1998, and section B.3.5.3 of ISO 13256-1:2021 contains equations for determining discharge coefficients that are equivalent to the equations in section 6.3.3 of ANSI/ASHRAE 37-2009.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009. As stated earlier in this section, the provisions of ANSI/ASHRAE 37-2009 provide more specificity in the determination of airflow characteristics than the provisions of ISO 13256-1:1998, but they otherwise align with the corresponding provisions in ISO 13256-1:1998. The provisions of ANSI/ASHRAE 37-2009 are also equivalent to those in ISO 13256-1:2021. In addition, as commenters stated, air measurement apparatuses based upon ANSI/ASHRAE 37-2009 satisfy the requirements of ISO 13256-1:1998. Therefore, DOE has tentatively concluded that the proposed test procedure would provide a representative and repeatable method for measuring airflow.
Issue 24: DOE requests comments on the proposal to adopt the calculation of discharge coefficients and air measurement apparatus requirements of ANSI/ASHRAE 37-2009.
Indoor air temperature and humidity are key parameters that affect WSHP performance, and for this reason, ISO 13256-1:1998 requires accurate indoor air condition measurements. However, informative annexes E and F of ISO 13256-1:1998 specify few requirements for the methods used to measure indoor air temperature and humidity.
In the June 2018 RFI, DOE identified that Appendix C of AHRI 340/360-2015 (the most current version of AHRI 340/360 at the time) provides details on entering outdoor air temperature measurement for air-cooled and evaporatively-cooled CUACs, including air sampling tree and aspirating psychrometer requirements, but that AHRI 340/360-2015 does not state that these provisions apply for measurement of entering indoor air temperature and leaving indoor air temperature. 83 FR 29048, 29054 (June 22, 2018). DOE requested comment on whether the requirements for outdoor entering air measurements in Appendix C of AHRI 340/360-2015 (excluding the temperature uniformity requirements in Table C2), such as air sampling requirements and aspirating psychrometer requirements, would be appropriate for measurement of indoor air entering and leaving temperatures for WSHPs.
On this topic, Trane, AHRI, and WaterFurnace commented that the ISO working group agreed on revised method of test annexes with further provisions for air sampling, based off provisions in ASHRAE 37; ASHRAE 41.1,
After its subsequent publication, DOE reviewed ISO 13256-1:2021, but in contrast to the commenters' expressed expectations, the Department found that the updated ISO standard specifies no requirements for the methods used to measure indoor air temperature and humidity, including no provisions for air sampling and aspirating psychrometers.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. Appendix C of AHRI 340/360-2022 provides more detailed specifications for the measurement of air conditions (including indoor air) than ISO 13256-1:1998, including aspirating psychrometer requirements in section C3.2.1 of AHRI 340/360-2022 and sampling requirements in section C3.3 of AHRI 340/360-2022. The absence of provisions in ISO 13256-1:1998 for how indoor air condition measurements are conducted creates the potential for variation in measured values based on how indoor air condition measurements are taken. To minimize any such variation, DOE is proposing to specify the measurement provisions in Appendix C of AHRI 340/360-2022. DOE has tentatively determined that the specifications in AHRI 340/360-2022 would be appropriate for testing WSHPs because they are the generally accepted industry method used for testing similar equipment, such as WCUACs.
Issue 25: DOE requests comments on the proposal to adopt the air condition measurement provisions in Appendix C of AHRI 340/360-2022.
In the calculations for cooling and heating capacities for the indoor air enthalpy test method of ISO 13256-1:1998, the test standard includes a footnote in sections B3 and B4 of annex B stating that the equations do not provide allowances for heat leakage in the test equipment (
In the June 2018 RFI, DOE requested comment on whether the duct loss adjustments as described in section 7.3.3.3 of ANSI/ASHRAE 37-2009 or any other duct loss adjustments are used to adjust capacity measured using the indoor air enthalpy method when testing WSHPs. 83 FR 29048, 29054 (June 22, 2018).
In response to DOE's request for comment, AHRI, WaterFurnace, and Trane commented that manufacturers typically adjust capacity for duct losses consistent with ANSI/ASHRAE 37-2009, and that these provisions are being included in the revised version of ISO 13256-1:1998. (AHRI, No. 12 at p. 14; WaterFurnace, No. 7 at pp. 12-13; Trane, No. 8 at p. 5)
Despite commenters' expressed expectations, DOE notes that similar to ISO 13256-1:1998, ISO 13256-1:2021 does not address duct losses. Specifically, section C.4 of ISO 13256-1:2021 includes a note that states that the formulas for calculating cooling and heating capacity in sections C.3 and C.4 do not provide allowance for heat leakage in the test duct and the discharge chamber. Further, ISO 13256-1:2021 does not specify a method for calculating the duct losses.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs. AHRI 340/360-2022 in turn references the test method in ANSI/ASHRAE 37-2009. As discussed earlier in this section, section 7.3.3.3 of ANSI/ASHRAE 37-2009 requires, and provides equations for, duct loss adjustments. The absence of provisions in ISO 13256-1:1998 for how to determine duct losses creates the potential for variation in measured values based on how and whether duct losses are accounted for. To minimize any such variation, DOE is proposing to adopt the provisions in ANSI/ASHRAE 37-2009. DOE has tentatively determined that the specifications in ANSI/ASHRAE 37-2009 would be appropriate for testing WSHPs because they are the generally accepted industry method used for testing similar equipment, such as WCUACs.
Issue 26: DOE requests comments on the proposal to adopt the duct loss provisions in section 7.3.3.3 of ASHRAE 37-2009.
The amount of refrigerant can have a significant impact on the system performance of air conditioners and heat pumps. DOE's current test procedure for WSHPs requires that units be set up for test in accordance with the manufacturer installation and operation manuals. 10 CFR 431.96(e). In addition, the current DOE test procedure states that if the manufacturer specifies a range of superheat, sub-cooling, and/or refrigerant pressures in the installation and operation manual, any value within that range may be used to determine refrigerant charge or mass of refrigerant, unless the manufacturer clearly specifies a rating value in its installation or operation manual, in which case the specified rating value shall be used.
DOE noted in the June 2018 RFI that the test procedure final rule for CAC/HPs published in the
The CA IOUs commented that only about 10 percent of WSHPs are split systems, and that many of the charging requirements in the June 2016 CAC TP final rule are for split systems and do not apply to single-package units. However, the CA IOUs went on to state that adopting provisions from the June 2016 CAC TP final rule would be useful for single-package units, specifically aspects that relate to pressure gauges for package units and banning charge adjustment during testing. The CA IOUs also suggested that DOE should develop language to address equipment that arrives at the test laboratory with damage, possibly giving some allowance to recharge WSHPs with minor damage but requiring a new unit to be shipped in the case of major damage. The CA IOUs further stated that adopting provisions similar to the June 2016 CAC TP final rule would be beneficial for the minority of WSHPs that require charging in the laboratory. (CA IOUs, No. 9 at p. 2)
Trane commented that all of its WSHP offerings are single-package units that are charged at the factory, so charging requirements would not be necessary. Trane added that packaged equipment requires no external refrigerant lines, and, therefore, superheat and subcooling do not need to be considered. (Trane, No. 8 at p. 6) WaterFurnace stated that split-system WSHPs are not sold for commercial applications, and, therefore, commercial WSHPs are not field-charged. (WaterFurnace, No. 7 at p. 14) AHRI and Trane commented that adopting charging requirements would not be appropriate, because many WSHPs have no service ports, and that units that do have service ports are charged by weight to the specification on the nameplate. (AHRI, No. 12 at p. 15; Trane, No. 8 at p. 6)
DOE notes that the subsequently published ISO 13256-1:2021 does not include any provisions regarding refrigerant charging that differ from ISO 13256-1:1998; the provisions in section A.2.4 of ISO 13256-1:2021 align with section A2.3 of ISO 13256-1:1998.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs, including section 5.8. Section 5.8 of AHRI 340/360-2022 specifies a comprehensive set of provisions regarding refrigerant charging that is similar to the approach adopted in the June 2016 CAC TP final rule. 81 FR 36992, 37030-37031 (June 8, 2016). DOE has tentatively concluded that these provisions provide sufficient guidance for setting and verifying the refrigerant charge of a WSHP. Section 5.8 requires that units be charged at conditions specified by the manufacturer in accordance with the manufacturer installation instructions or labels applied to the unit. If no manufacturer-specified charging conditions are provided, section 5.8 specifies charging at the standard rating conditions (as defined in Table 6 of AHRI 340/360-2022). Section 5.8 also provides additional charging instructions to be used if the manufacturer does not provide instructions or if the provided instructions are unclear or incomplete (
DOE disagrees with the commenters' assertions that charging requirements are not appropriate for WSHPs. While DOE acknowledges that most WSHP models are single-package units, the Department tentatively concludes that charging provisions are warranted for single-package units. DOE notes that AHRI 210/240-2023 (in section 5.1.8),
Further, while the use of pressure gauges is not necessary to adjust charge if charging is based only on parameters such as charge weight that do not require measurement of refrigerant pressure, installation of pressure gauges would be warranted for charge adjustment if charging is based on parameters that require measurement of refrigerant pressure such as subcooling or superheat. Additionally, DOE has identified several WSHP service manuals that allow for charge adjustment in the field, indicate the presence of pressure ports, and provide guidance for confirmation of charge based on sub-cooling or superheat.
Therefore, DOE has tentatively concluded that the provisions regarding refrigerant charging in section 5.8 of AHRI 340/360-2022, including the provisions specific to installation of pressure gauges for single-package units in section 5.8.4 of AHRI 340/360-2022, are warranted for testing WSHPs. DOE has tentatively determined that these provisions ensure that WSHPs are set up for testing with refrigerant charging instructions that are representative of field installations, and that testing is conducted in a repeatable manner. DOE also notes that the refrigerant charging provisions in AHRI 340/360-2022 are generally consistent with the industry consensus test procedures for testing several categories of air conditioning and heating equipment (
Issue 27: DOE requests comments on the proposal to adopt the refrigerant charging requirements in section 5.8 of AHRI 340/360-2022.
Operating voltage can affect the measured efficiency of air conditioners. The current DOE WSHP test procedure, through adoption of Tables 1 and 2 of ISO 13256-1:1998, requires units rated with dual nameplate voltages to be tested at both voltages or at the lower voltage if only a single rating is to be published.
In the June 2018 RFI, DOE requested data and information on the extent of the effect that voltage has on air conditioning equipment and if there is a consistent relationship between voltage and efficiency. DOE also requested comment on whether certain voltages within common dual nameplate voltages (
On this topic, Trane commented that performance varies slightly with voltage, and that to be conservative, Trane tests its units at multiple voltages and rates at the lowest measured efficiency. (Trane, No. 8 at p. 6) AHRI and WaterFurnace had a somewhat different viewpoint, commenting that performance at each voltage is not normally measured and that the effect of voltage varies by compressor line (
DOE notes that tables 2 and 3 of ISO 13256-1:2021 specify the same voltage requirements for testing units rated with dual nameplate voltages as tables 1 and 2 of ISO 13256-1:1998.
As discussed in section III.D.2 of this NOPR, DOE proposes to adopt specific sections of AHRI 340/360-2022 in its test procedure for WSHPs, including section 6.1.3.1. Section 6.1.3.1 of AHRI 340/360-2022 specifies that units with dual nameplate voltage ratings must be tested at the lower of the two voltages if only a single standard rating is to be published, or at both voltages if two standard ratings are to be published. This approach is equivalent to the approach for dual nameplate voltages specified in tables 1 and 2 of ISO 13256-1:1998 and tables 2 and 3 of ISO 13256-1:2021.
Issue 28: DOE requests comments on the proposal to adopt the voltage provisions in section 6.1.3.1 of AHRI 340/360-2022.
WSHPs are sold with a wide variety of components, including many that can optionally be installed on or within the unit both in the factory and in the field. The following sections address the required configuration of units under test. In all cases, these components are distributed in commerce with the WSHP but can be packaged or shipped in different ways from the point of manufacturer for ease of transportation. Each optional component may or may not affect a model's measured efficiency when tested to the DOE test procedure proposed in this NOPR. For certain components not directly addressed in the DOE test procedure, this NOPR proposes more specific instructions on how each component should be handled for the purposes of making representations in 10 CFR part 429. Specifically, these proposed instructions would provide manufacturers clarity on how components should be treated and how to group individual models with and without optional components for the purposes of representations to reduce burden. DOE is proposing these provisions in 10 CFR part 429 to allow for testing of certain individual models that can be used as a proxy to represent the performance of equipment with multiple combinations of components.
DOE is proposing to handle WSHP components in two distinct ways in this NOPR to help manufacturers better understand their options for developing representations for their differing product offerings. First, DOE proposes that the treatment of certain components is specified by the test procedure, such that their impact on measured efficiency is limited. For example, a fresh air damper must be set in the closed position and sealed during testing, resulting in a measured efficiency that would be similar or identical to the measured efficiency for a unit without a fresh air damper. Second, DOE is proposing provisions expressly allowing certain models to be grouped together for the purposes of making representations and allowing the performance of a model without certain optional components to be used as a proxy for models with any combinations of the specified components, even if such components would impact the measured efficiency of a model. A steam/hydronic coil is an example of
In 2013, the Appliance Standards and Rulemaking Federal Advisory Committee formed the Commercial HVAC Working Group to engage in a negotiated rulemaking effort regarding the certification of certain commercial heating, ventilating, and air conditioning equipment, including WSHPs. (
On January 30, 2015, DOE issued a Commercial HVAC Enforcement Policy addressing the treatment of specific features during Departmental testing of commercial HVAC equipment. (
By way of comparison, AHRI 340/360-2022 includes Appendix D, “Unit Configuration for Standard Efficiency Determination—Normative.” Section D3 of AHRI 340/360-2022 includes a list of features that are optional for testing, and it further specifies the following general provisions regarding testing of units with optional features:
• If an otherwise identical model (within the basic model) without the feature is not distributed in commerce, conduct tests with the feature according to the individual provisions specified in section D3 of AHRI 340/360-2022.
• For each optional feature, section D3 of AHRI 340/360-2022 includes explicit instructions on how to conduct testing for equipment with the optional feature present.
The optional features provisions in AHRI 340/360-2022 are generally consistent with DOE's Commercial HVAC Enforcement Policy, but the optional features in section D3 of AHRI 340/360-2022 do not entirely align with the list of features included for WSHPs in the Commercial HVAC Enforcement Policy.
DOE notes that the list of features and provisions in section D3 of Appendix D of AHRI 340/360-2022 conflates components that can be addressed by testing provisions with components that if present on a unit under test, could have a substantive impact on test results and that cannot be disabled or otherwise mitigated. This differentiation was central to the Commercial HVAC Term Sheet, which as noted previously, included separate lists for “Equipment Features Requiring Test Procedure Action” and “Equipment Features Subject to Enforcement Policy,” and remains central to providing clarity in DOE's regulations. Further, provisions more explicit than included in section D3 of AHRI 340/360-2022 are warranted to clarify treatment of models that include more than one optional component.
In order to provide clarity between test procedure provisions (
DOE's proposals for addressing treatment of certain components are discussed in the following sub-sections. Were DOE to adopt the provisions in 10 CFR 429.43, 10 CFR 429.134, and 10 CFR part 431, subpart F, appendix C1 as proposed, DOE would rescind the Commercial HVAC Enforcement Policy to the extent it is applicable to WSHPs.
Issue 29: DOE seeks comment on its proposals regarding specific components in 10 CFR 429.43, 10 CFR 429.134, and 10 CFR part 431, subpart F, appendix C1.
In 10 CFR part 430, subpart F, appendix C1, DOE proposes test provisions for specific components, including all of the components listed in section D3 of AHRI 340/360-2022 for which there is a test procedure action which limits the impacts on measured efficiency (
The components are listed and described in Table 12 in section 7 of the newly proposed Appendix C1, and test provisions for them are provided in the table.
Consistent with the Commercial HVAC Term Sheet and the Commercial HVAC Enforcement Policy, DOE is proposing provisions that explicitly allow representations for individual models with certain components to be based on testing for individual models without those components—DOE is proposing a table (“Table 1 to 10 CFR 429.43”) at 10 CFR 429.43(a)(3)(ii)(A) listing the components for which these provisions would apply. There are three components specified explicitly for WSHPs in the Commercial HVAC Enforcement Policy that are not included in section D3 of AHRI 340/360-2022: (1) Condenser Pumps/Valves/Fittings; (2) Condenser Water Reheat; and (3) Electric Resistance Heaters. DOE has tentatively concluded that the inclusion of these components as optional components for WSHPs is appropriate, except for electric resistance heaters. DOE has tentatively determined that electric resistance heaters would have a negligible effect on tested efficiency as they would be turned off for test and not impose a significant pressure drop. DOE is proposing the following components be listed in Table 1 to 10 CFR 429.43:
In this NOPR, DOE is proposing to specify that the basic model representation must be based on the least efficient individual model that is a part of the basic model and clarifying how this long-standing basic model provision interacts with the component treatment in 10 CFR 429.43 that is being proposed. DOE believes regulated entities may benefit from clarity in the regulatory text as to how the least-efficient individual model within a basic model provision works with the component treatment for WSHPs. The amendments in this NOPR explicitly state that the exclusion of the specified components from consideration in determining basic model efficiency in certain scenarios is an exception to basing representations on the least efficient individual model within a basic model. In other words, the components listed in 10 CFR 429.43 are not being considered as part of the representation under DOE's regulatory framework if certain conditions are met as discussed in the following paragraphs, and, thus, their impact on efficiency is not reflected in the representation. In this case, the basic model's representation is generally determined by applying the testing and sampling provisions to the least-efficient individual model in the basic model that does not have a component listed in 10 CFR 429.43.
DOE is proposing clarifying instructions for instances when individual models within a basic model may have more than one of the specified components and there may be no individual model without any of the specified components. DOE is proposing the concept of an “otherwise comparable model group” (“OCMG”). An OCMG is a group of individual models within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure other than the specific components listed in Table 1 to 10 CFR 429.43 but may include individual models with any combination of such specified components. Therefore, a basic model can be composed of multiple OCMGs, each representing a unique combination of components that affect energy consumption as measured according to the applicable test procedure, other than the specified excluded components listed in Table 1 to 10 CFR 429.43. For example, a manufacturer might include two tiers of control system within the same basic model, in which one of the control systems has sophisticated diagnostics capabilities that require a more powerful control board with a higher wattage input. WSHP individual models with the “standard” control system would be part of OCMG A, while individual models with the “premium” control system would be part of a different OCMG B, because the control system is not one of the specified exempt components listed in Table 1 to 10 CFR 429.43. However, both OCMGs may include different combinations of specified exempt components. Also, both OCMGs may include any combination of characteristics that do not affect the efficiency measurement, such as paint color.
An OCMG is used to determine which individual models are used to determine a represented value. Specifically, when identifying the individual model within an OCMG for the purpose of determining a representation for the basic model, only the individual model(s) with the least number (which could be zero) of the specific components listed in Table 1 to 10 CFR 429.43 is considered. This clarifies which individual models are exempted from consideration for determination of represented values in the case of an OCMG with multiple specified components and no individual models with zero specific components listed in Table 1 to 10 CFR 429.43 (
DOE relies on the term “comparable” as opposed to “identical” to indicate that for the purpose of representations, the components that impact energy consumption as measured by the applicable test procedure are the relevant components to consider. In other words, differences that do not impact energy consumption, such as unit color and presence of utility outlets, would not warrant separate OCMGs.
The use of the OCMG concept results in the represented values of performance that are representative of the individual model(s) with the lowest
DOE's proposed provisions in 10 CFR 429.43(a)(3)(ii)(A) include each of the components specified in section D3 of AHRI 340/360-2022 for which the test provisions for testing a unit with these components may result in differences in ratings compared to testing a unit without these components, except for the following features: (1) Evaporative Pre-cooling of Condenser Intake Air; (2) Non-Standard Ducted Condenser Fans; and (3) Coated Coils. Because WSHPs do not have condenser intake air or condenser fans, DOE is not including provisions addressing these components for WSHPs. Non-standards indoor fan motors and coated coils are discussed in the following sub-sections.
The Commercial HVAC Enforcement Policy includes high-static indoor blowers/oversized motors as an optional feature for WSHPs, among other equipment. The Commercial HVAC Enforcement Policy states that when selecting a unit of a basic model for DOE‐initiated testing, if the basic model includes a variety of high-static indoor blowers or oversized motor options,
DOE subsequently issued a draft guidance document (“Draft Commercial HVAC Guidance Document”) on June 29, 2015 to request comment on a method for comparing the efficiencies of a standard motor and a high-static indoor blower/oversized motor.
Neither ISO 13256-1:1998 nor ISO 13256-1:2021 address this issue. Section D4.1 of AHRI 340/360-2022 provides an approach for including an individual model with a non-standard indoor fan motor as part of the same basic model as an individual model with a standard indoor fan motor. Under the approach in section D4.1 of AHRI 340/360-2022, the non-standard indoor fan motor efficiency must exceed the minimum value calculated using Equation D1 of AHRI 340/360-2022. This minimum non-standard motor efficiency calculation is dependent on the efficiency of the standard fan motor and the reference efficiencies (determined per Table D1 of AHRI 340/360-2022) of the standard and non-standard fan motors.
Section D4.2 of AHRI 340/360-2022 contains a method for how to compare performance for integrated fans and motors (“IFMs”). Because the fan motor in an IFM is not separately rated from the fan, this method compares the performance of the entire fan-motor assemblies for the standard and non-standard IFMs, rather than just the fan motors. This approach enables comparing relative performance of standard and non-standard IFMs, for which motor efficiencies could otherwise not be compared using the method specified in section D4.1 of AHRI 340/360-2022. Specifically, this method determines the ratio of the input power of the non-standard IFM to the input power of the standard IFM at the same duty point as defined in section D4.2 (
The approaches in section D4 of AHRI 340/360-2022 for non-standard indoor fan motors and non-standard indoor IFMs generally align with the approaches of the Commercial HVAC Term Sheet, the Commercial HVAC Enforcement Policy, and the Draft Commercial HVAC Guidance Document, while providing greater detail and accommodating a wider range of fan motor options. For the reasons presented in the preceding paragraphs DOE proposes to adopt the provisions for comparing performance of standard and non-standard indoor fan motors/IFMs in section D4 of AHRI 340/360-2022
Issue 30: DOE requests comment on its proposal to adopt the methods for comparing relative efficiency of standard and non-standard indoor fan motors and integrated fan and motor combinations specified in section D4 of AHRI 340/360-2022 in the provisions for determination of represented values in 10 CFR 429.43(a) and provisions for DOE assessment and enforcement testing in 10 CFR 429.134.
DOE is proposing to exclude coated coils from the specific components list specified in 10 CFR 429.43 because DOE has tentatively concluded that the presence of coated coils does not result in a significant impact to performance of WSHPs, and, therefore, models with coated coils should be rated based on performance of models with coated coils present (rather than based on performance of an individual model within an OCMG without coated coils).
Consistent with the Commercial HVAC Term Sheet and the Commercial HVAC Enforcement Policy, DOE is proposing provisions in the newly proposed 10 CFR 429.134(t)(1) regarding how DOE would assess compliance for basic models that include individual models distributed in commerce if DOE cannot obtain for testing individual models without the components that are the basis of representation. Specifically, DOE proposes that if a basic model includes individual models with components listed at Table 1 to 10 CFR 429.43 and DOE is not able to obtain an individual model with the least number of those components within an OCMG (as defined in 10 CFR 429.43(a)(3) and discussed in section III.G.3.b of this NOPR), DOE may test any individual model within the OCMG.
Unlike section D3 of AHRI 340/360-2022, DOE's Commercial HVAC Enforcement Policy does not allow a manufacturer to test a specially-built model for testing models without a feature that are not distributed in commerce. Because testing such specially-built models would not provide ratings representative of equipment distributed in commerce, DOE has tentatively concluded that this approach is not appropriate. Therefore, consistent with the Commercial HVAC Enforcement Policy, DOE is not proposing to allow testing of specially-built units in its representation and enforcement provisions.
For WSHPs, cooling capacity determines equipment class, which in turn determines the applicable energy conservation standard. 10 CFR 431.97. While cooling capacity is a required represented value for WSHPs, DOE does not currently specify any provisions for WSHPs regarding how close the represented value of cooling capacity must be to the tested or AEDM-simulated cooling capacity, or whether DOE will use measured or certified cooling capacity to determine equipment class for enforcement testing. In contrast, at paragraphs (a)(1)(iv) and (a)(2)(ii) of 10 CFR 429.43 and paragraph (g) of 10 CFR 429.134, DOE specifies such provisions regarding the cooling capacity for air-cooled CUACs (“ACUACs”). Because energy conservation standards for WSHPs are dependent on cooling capacity, inconsistent approaches to the application of cooling capacity between basic models could result in inconsistent determinations of equipment class and, in turn, inconsistent applications of the energy conservation standards.
Accordingly, DOE is proposing to add the following provisions regarding cooling capacity for WSHPs: (1) a requirement that the represented cooling capacity be between 95 percent and 100 percent of the tested or AEDM-simulated cooling capacity; and (2) an enforcement provision stating that DOE would use the mean of measured cooling capacity values from assessment and enforcement testing, rather than the certified cooling capacity, to determine the applicable standards.
First, DOE proposes to require in 10 CFR 429.43(a)(3)(ii)(B) that the represented value of cooling capacity must be between 95 percent and 100 percent of the mean of the cooling capacity values measured for the units in the sample (if determined through testing), or between 95 percent and 100 percent of the net sensible cooling capacity output simulated by an AEDM. This tolerance would help to ensure that equipment: (1) is capable of performing at the cooling capacity for which it is represented to commercial consumers and (2) certified in the appropriate equipment class for the cooling capacity the equipment is capable of providing. This tolerance would also enable manufacturers to conservatively rate the cooling capacity to allow for minor variations in the capacity measurements from different units tested at different laboratories.
Second, DOE is proposing in its product-specific enforcement provisions at 10 CFR 429.134(t)(1) that the cooling capacity of each tested unit of the basic model will be measured pursuant to the test requirements of part 431 and that the mean of the measurements will be used to determine compliance with the applicable standards.
As discussed in this section, applicable energy conservation standards for WSHPs are dependent on the rated cooling capacity. Consequently, in certain cases, over-rating a system could result in decreased stringency by incorrectly applying a more lenient standard prescribed for a higher capacity equipment class. DOE has tentatively concluded that these proposals would result in more accurate ratings of cooling capacity, thereby ensuring appropriate application of the energy conservation standards, while providing flexibility for conservatively rating cooling capacity to ensure that equipment is capable of delivering the cooling capacity that is represented to commercial consumers.
Issue 31: DOE requests comment on its proposals related to represented values and verification testing of cooling capacity for WSHPs.
As discussed in section III.E.1 of this document, DOE is proposing two options for determining IEER. The first option, “Option 1” as specified in section 5.1.1 of appendix C1, is based on testing at the IEER entering water temperatures. The second option, “Option 2” as specified in section 5.1.2 of appendix C1, is based on testing at alternate entering water temperatures and then using interpolation and extrapolation to determine performance at IEER entering water temperatures. For assessment or enforcement testing, DOE is proposing provisions in § 429.134(t)(3) specifying that that the Department will determine IEER according to the “Option 1” approach, unless the manufacturer has specified that the “Option 2” approach should be used for the purposes of enforcement, in which case the Department will determine IEER according to the “Option 2” approach.
EPCA requires that the test procedures for commercial package air conditioning and heating equipment, which includes WSHPs, be those
As discussed in section III.D.3 of this NOPR, DOE has tentatively determined that the proposed test procedure in proposed appendix C1 would improve representativeness, accuracy, and reproducibility as compared to the current DOE test procedure and would not be unduly burdensome to conduct.
Because the current DOE test procedure for WSHPs would be relocated to appendix C without change, the proposed test procedure in appendix C for measuring EER and COP would result in no change in testing practices or burden.
DOE tentatively concludes that the proposed test procedure in proposed appendix C1 for measuring IEER and COP would increase testing costs per unit compared to the current DOE test procedure. DOE estimates to cost for third-party laboratory testing of WSHPs according to the current test procedure to be $2,200 per unit for units with a cooling capacity of less than 135,000 Btu/h. DOE estimates the cost for third-party lab testing according to the proposed appendix C1 for measuring IEER and COP would be $4,450 per unit for units with a cooling capacity of less than 135,000 Btu/h. This increase is due to the increased number of tests associated with the IEER metric compared to the current metric, EER. IEER requires four tests, whereas EER only requires one.
Additionally, DOE is proposing to increase in the scope of applicability of the test procedure to include all WSHPs with full-load cooling capacity between 135,000 Btu/h and 760,000 Btu/h. DOE estimates the cost for third-party lab testing of large and very large WSHPs according to the proposed appendix C1 for measuring IEER and COP would be $12,000 per unit. DOE estimates a substantially higher cost for larger WSHPs because they are generally more difficult to set up due to size and larger units typically would need to be set up in larger and rarer test chambers.
As discussed, in accordance with 10 CFR 429.70, WSHP manufacturers may elect to use AEDMs. An AEDM is a computer modeling or mathematical tool that predicts the performance of non-tested basic models. These computer modeling and mathematical tools, when properly developed, can provide a means to predict the energy usage or efficiency characteristics of a basic model of a given covered product or equipment and reduce the burden and cost associated with testing. DOE estimates the per-manufacturer cost to develop and validate an AEDM to be used for all WSHP equipment with a cooling capacity less than 135,000 Btu/h would be $12,800. DOE estimates the per-manufacturer cost to develop and validate an AEDM to be used for all WSHPs with a cooling capacity between 135,000 Btu/h and 760,000 Btu/h would be $27,900. DOE estimates an additional cost of approximately $41 per basic model for determining energy efficiency using the validated AEDM.
As discussed in section III.J of this NOPR, the proposed test procedure provisions regarding IEER would not be mandatory until compliance is required with amended energy conservation standards that rely on IEER, should DOE adopt such standards, although any voluntary early representations of IEER must be based on the proposed appendix C1. DOE has tentatively determined that the test procedure amendments, if finalized, would not require manufacturers to redesign any of the covered equipment or require changes to how the equipment is manufactured, solely as result of the test procedure amendments. In section IV.B of this TP NOPR, DOE assesses the impact to domestic, small manufacturers of WSHPs from the test procedure provisions proposed in this NOPR.
Issue 32: DOE requests comment on its understanding of the impact of the test procedure proposals in this NOPR. DOE also seeks specific feedback on the estimated costs to rate WSHP models with an AEDM.
EPCA prescribes that, if DOE amends a test procedure, all representations of energy efficiency and energy use, including those made on marketing materials and product labels, must be made in accordance with that amended test procedure, beginning 360 days after publication of such a test procedure final rule in the
Starting 360 days after publication of a test procedure final rule in the
Any voluntary representations of IEER made prior to the compliance date of amended standards for water-source heat pumps that rely on IEER would need to be based on the proposed appendix C1 starting 360 days after publication of such a test procedure final rule in the
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to
Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this proposed regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.
The Regulatory Flexibility Act (5 U.S.C. 601
The following sections detail DOE's IRFA for this test procedure rulemaking.
DOE is proposing to amend the existing DOE test procedures for water-source heat pumps (“WSHPs”). DOE must update the Federal test procedures to be consistent with relevant industry test procedures unless DOE determines by rule published in the
Under 42 U.S.C. 6314, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered equipment. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use, or estimated annual operating cost of covered equipment during a representative average use cycle and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(2))
With respect to WSHPs, EPCA requires that the test procedures shall be those generally accepted industry testing procedures or rating procedures developed or recognized by the Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”) or by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (“ASHRAE”), as referenced in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (“ASHRAE Standard 90.1”). (42 U.S.C. 6314(a)(4)(A)) Further, if such an industry test procedure is amended, DOE must amend its test procedure to be consistent with the amended industry test procedure, unless DOE determines, by rule published in the
EPCA also requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment including WSHPs, to determine whether amended test procedures would more accurately or fully comply with the requirements for the test procedures to be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle and not be unduly burdensome to conduct. (42 U.S.C. 6314(a)(1)(A))
DOE is proposing amendments to the test procedures for WSHPs in satisfaction of its statutory obligations under EPCA.
DOE uses the Small Business Administration (“SBA”) small business size standards to determine whether manufacturers qualify as “small businesses,” which are listed by the North American Industry Classification System (“NAICS”).
WSHP manufacturers, who produce the equipment covered by this rule, are classified under NAICS code 333415, “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” In 13 CFR 121.201, the SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category. This employee threshold includes all employees in a business's parent company and any other subsidiaries.
DOE reviewed the test procedures proposed in this NOPR under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The Department conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. DOE's analysis relied on publicly available information and databases to identify potential small businesses that manufacture WSHPs domestically. DOE utilized the California Energy Commission's Modernized Appliance Efficiency
In this NOPR, DOE proposes to add new appendices C and C1 to subpart F of part 431, both titled “Uniform test method for measuring the energy consumption of water-source heat pumps,” (“appendix C” and “appendix C1,” respectively). The current DOE test procedure for WSHPs would be relocated to appendix C without change. DOE is proposing in appendix C1 to adopt generally the industry test standard AHRI 340/360-2022 for WSHPs, with certain additional provisions regarding test conditions to improve representativeness, accuracy, and repeatability. Appendix C1 would be for determining IEER, and use of appendix C1 would not be required until such time as compliance is required with amended energy conservation standards for WSHPs based on IEER (should DOE adopt such standards) or should a manufacturer choose to make voluntary representations of IEER. Additionally, DOE is proposing to increase the scope of applicability of the test procedure (including both appendices C and C1) to include all WSHPs with a full-load cooling capacity between 135,000 Btu/h and 760,000 Btu/h. Lastly, this NOPR seeks to amend certain representation and enforcement provisions for WSHPs in 10 CFR part 429.
Appendix C does not contain any changes from the current Federal test procedure, and, therefore, would have no cost to industry and would not require retesting solely as a result of DOE's adoption of this proposed amendment to the test procedure, if made final.
In appendix C1, DOE is proposing to adopt generally AHRI 340/360-2022 as the test procedure for WSHPs. The proposed test procedure in appendix C1 includes provisions for measuring efficiency of WSHPs in terms of the IEER metric for cooling mode and the COP metric for heating mode. Appendix C1 is not mandatory at this point in time. Should DOE adopt energy conservation standards based on the proposed metrics in appendix C1 (IEER and COP) in the future, DOE anticipates manufacturers would incur costs to re-rate models as a result of the standards. The current DOE test procedure (applicable only to WSHP with cooling capacity less than 135,000 Btu/h) results in costs of approximately $2,200 per unit for third-party laboratory testing. DOE estimates the cost for third-party laboratory testing according to the proposed appendix C1 to be $4,450 per unit.
Furthermore, as mentioned, DOE is proposing to increase in the scope of applicability of the test procedure to include all WSHPs with a full-load cooling capacity between 135,000 Btu/h and 760,000 Btu/h. However, testing for these WSHPs is not currently mandatory because there are no energy conservation standards for WSHPs at or above 135,000 Btu/h at the present time. Consequently, manufacturers would not incur costs as result of this TP NOPR unless they choose to make voluntary representations regarding the IEER of the subject equipment. Any voluntary representations would need to be based on the test procedure in appendix C starting 360 days after the publication of a test procedure final rule. Should DOE adopt future energy conservation standards denominated in terms of IEER to expand coverage of WSHPs with a full-load cooling capacity between 135,000 Btu/h and 760,000 Btu/h, DOE manufacturers could incur first-time rating costs as a result of the standard. DOE estimates the cost for third-party lab testing according to the proposed appendix C1 for measuring IEER and COP of WSHPs with a cooling capacity between 135,000 Btu/h and 760,000 Btu/h to be $12,000 per unit.
If WSHP manufacturers conduct physical testing to certify a basic model, two units are required to be tested per basic model. The physical test cost, according to the proposed amendments, would range between $8,900 to $24,000 per basic model.
When developing cost estimates for the small OEMs, DOE considers the cost to update the existing AEDM simulation tool, the costs to validate the AEDM through physical testing, and the cost to rate basic models using the AEDM. DOE assumes that small business manufacturers will afford themselves of the cost-saving opportunity associated with use of an AEDM.
DOE identified seven small, domestic OEMs of WSHPs that manufacture equipment impacted by DOE's proposal to adopt metrics in terms of IEER and COP. Additionally, of these manufacturers, DOE identified one OEM that currently manufactures equipment with a cooling capacity between 135,000 Btu/h and 760,000 Btu/h. DOE estimates
Given the potential for DOE to adopt energy conservation standards based on the proposed metrics in 10 CFR part 431, subpart F, appendix C1 (IEER and COP) in the future, DOE estimates here the range of potential re-rating costs for the seven small, domestic OEMs. The small, domestic OEMs manufacture an average of 38 basic models per manufacturer and average $14.0 million in annual revenue. DOE estimates that the associated re-rating costs for these seven manufacturers would be approximately $14,400 per manufacturer, when utilizing AEDMs. Therefore, the average cost to re-rate all basic models is estimated to be less than 1 percent of annual revenue for these small businesses.
Should DOE adopt future energy conservation standards to include all WSHPs with a cooling capacity between 135,000 Btu/h and 760,000 Btu/h, DOE estimates that the one small, domestic manufacturer of this equipment-type would incur first-time rating costs of $28,100 while making use of an AEDM. DOE estimates this manufacturer to have an annual revenue of $11.0 million. Therefore, should DOE adopt future energy conservation standards to include all WSHPs with a cooling capacity between 135,000 Btu/h and 760,000 Btu/h and this manufacturer were required to re-rate all its models to the proposed metrics in 10 CFR part 431, subpart F, appendix C1 (IEER and COP). DOE estimates the cost would be less than 1 percent of annual revenue for this small business.
Issue 33: DOE requests comment on the number of small OEMs DOE identified. DOE also seeks comment on the Department's estimates of potential costs these small manufacturers may incur as a result of its proposed amendments to the WSHP test procedure.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the rule being considered.
The discussion in the previous section analyzes impacts on small businesses that would be expected to result from DOE's proposed test rule, if finalized. The Department has tentatively determined that there are no better alternatives than the test procedure proposed in this NOPR, in terms of both meeting the agency's objectives pursuant to EPCA and reducing burden. Whenever possible, DOE seeks to utilize applicable industry test procedures as a way to minimize burdens on regulated parties. In reviewing alternatives to the proposed test procedure, DOE examined other industry test procedures when applicable. Ultimately, DOE proposes to amend the test procedure for WSHPs to incorporate by reference AHRI 340/360-2022, the industry test procedure for testing CUAC/HPs. Furthermore, AHRI 340/360-2022 in turn references ANSI/ASHRAE 37-2009, which provides a method of test applicable to many categories of air conditioning and heating equipment. DOE has tentatively concluded that incorporation by reference of these industry test standards would best achieve the statutory objectives of representativeness and not being unduly burdensome on manufacturers, including small businesses.
Additionally, DOE proposes to reduce burden on manufacturers, including small businesses, by allowing AEDMs in lieu of physically testing all basic models. The use of an AEDM is less costly than physical testing WSHP models. Without AEDMs, DOE estimates the typical cost to physically test all WSHP basic models for an average small manufacturer would be $340,000.
Additional compliance flexibilities may be available through other means. Manufacturers subject to DOE's energy conservation standards may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 1003 for additional details.
Manufacturers of WSHPs must certify to DOE that their equipment complies with any applicable energy conservation standards. To certify compliance, manufacturers must first obtain test data for their equipment according to the DOE test procedures, including any amendments adopted for those test procedures. DOE has established regulations for the certification and recordkeeping requirements for all covered consumer products and commercial equipment, including WSHPs. (
DOE is not proposing to amend the certification or reporting requirements for WSHPs in this NOPR. Instead, DOE may consider proposals to amend the certification requirements and reporting for WSHPs under a separate rulemaking regarding appliance and equipment certification. DOE will address changes to OMB Control Number 1910-1400 at that time, as necessary.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
In this NOPR, DOE proposes test procedure amendments that it expects will be used to develop and implement future energy conservation standards for WSHPs. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Executive Order 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism
Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or if it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of Executive Order 12988.
Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a proposed regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (March 18, 1988), that this proposed regulation would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at:
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
The proposed regulatory action to amend the test procedure for measuring the energy efficiency of WSHPs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.
Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; “FEAA”) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (“FTC”) concerning the impact of the commercial or industry standards on competition.
The proposed modifications to the Federal test procedure for WSHPs would incorporate testing methods contained in certain sections of the following applicable commercial test standards: AHRI 340/360-2022 and ANSI/ASHRAE 37-2009. DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (
In this NOPR, DOE proposes to incorporate by reference the following test standards:
AHRI 340/360-2022 is an industry-accepted test procedure for measuring the performance of unitary air-conditioning & air-source heat pump equipment. AHRI Standard 340/360-2022 is reasonably available on AHRI's website at:
ANSI/ASHRAE 37-2009, as updated by the errata sheet, is an industry-accepted test procedure for measuring the performance of electrically driven unitary air-conditioning and heat pump equipment. ANSI/ASHRAE 37-2009 is reasonably available on ANSI's website at:
ASHRAE errata sheet to ANSI/ASHRAE Standard 37-2009 is a technical corrections sheet for ANSI/ASHRAE 37-2009. The errata sheet for ANSI/ASHRAE 37-2009 is reasonably available on ASHRAE's website at:
ISO Standard 13256-1:1998 is an industry-accepted test procedure for measuring the performance of water-source heat pump equipment. ISO Standard 13256-1:1998 is reasonably available on ISO's website at:
The following standards were previously-approved for incorporation by reference in the locations where they appear in the regulatory text: AHRI 210/240-2008, AHRI 340/360-2007, AHRAE 127-2007, AHRI 1230-2010, AHRI 390-2003.
The time and date of the webinar are listed in the
Additionally, you may request an in-person meeting to be held prior to the close of the request period provided in the
Any person who has an interest in the topics addressed in this NOPR, or who is representative of a group or class of persons that has an interest in these issues, may request an opportunity to make an oral presentation at the public meeting webinar. Such persons may submit requests to speak via email to the Appliance and Equipment Standards Program at:
DOE requests persons selected to make an oral presentation to submit an advance copy of their statement at least two weeks before the webinar. At its discretion, DOE may permit persons who cannot supply an advance copy of their statement to participate, if those persons have made advance alternative arrangements with the Building Technologies Office. As necessary, requests to give an oral presentation should ask for such alternative arrangements.
DOE will designate a DOE official to preside at the public meeting webinar and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA (42 U.S.C. 6306). A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting webinar. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. anti-trust laws. After the public meeting webinar and until the end of the comment period, interested parties may submit further comments on the proceedings and any aspect of the rulemaking.
The webinar will be conducted in an informal, conference style. DOE will present a general overview of the topics addressed in this rulemaking, allow time for prepared general statements by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a general statement (within time limits determined by DOE), before the discussion of specific topics. DOE will allow, as time permits, other participants to comment briefly on any general statements.
At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the webinar will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the procedures that may be needed for the proper conduct of the public meeting webinar.
A transcript of the public meeting webinar will be included in the docket,
DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the
However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Otherwise, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. 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.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
Although DOE welcomes comments on any aspect of this proposal, DOE is particularly interested in receiving comments and views of interested parties concerning the following issues:
Issue 1: DOE requests comments on the proposed expansion of the scope of applicability of the Federal test procedure to include WSHPs with cooling capacity between 135,000 and 760,000 Btu/h.
Issue 2: DOE requests comments on the proposed change to the definition of WSHP to explicitly indicate that WSHP is a category of commercial package air-conditioning and heating equipment, and to clarify that the presence of an indoor fan does not apply to coil-only units.
Issue 3: DOE requests comment on its proposal to adopt the test methods specified in AHRI 340/360-2022 for calculating the IEER of WSHPs. DOE also requests comment on its proposal that all EER tests at full-load and part-load conditions specified in Table 1 of ISO 13256-1:1998 (
Issue 4: DOE requests comment on the proposal to allow determination of IEER using two different methods: (1) testing in accordance with AHRI 340/360-2022; or (2) interpolation and extrapolation of cooling capacity and power values based on testing in accordance with the proposed test procedure at the EWTs specified in Table 1 of ISO 13256-1:1998. Specifically, DOE seeks feedback on the proposed method for calculating IEER via interpolation and extrapolation, and on whether this approach would serve as a potential burden-reducing option as compared to
Issue 5: DOE requests comment on whether the proposed methodology to determine IEER based on interpolation and extrapolation is appropriate for variable-speed units. DOE would consider requiring variable-speed equipment be tested only according to AHRI 340/360-2022 and, thus, testing physically at the IEER EWTs, if suggested by commenters.
Issue 6: DOE seeks feedback on whether the proposed interpolation and extrapolation method should be based on testing at the ISO 13256-1:2021 EWTs.
Issue 7: DOE seeks comment and data on the representativeness of 55 °F as the EWT condition for determining COP. Specifically, DOE requests feedback and data on whether a lower EWT, such as 50 °F, would be more representative of heating operation of WSHPs. DOE will further consider any alternate EWT suggested by comments in developing any final rule.
Issue 8: DOE requests comment on the proposal to allow determination of COP using two different methods: (1) testing at 55 °F; or (2) interpolation of heating capacity and power values based on testing in accordance with the proposed test procedure at EWTs specified for heating tests in Table 2 of ISO 13256-1:1998 (
Issue 9: DOE requests comment on its proposal to specify in proposed appendix C1 use of the cooling entering air conditions from AHRI 340/360-2022 (
Issue 10: DOE requests comment on the proposal to adopt provisions from AHRI 340/360-2022 such that testing would be conducted within tolerance of the AHRI 340/360-2022 minimum ESP requirements, and efficiency ratings would include the fan power measured to overcome the tested ESP.
Issue 11: DOE requests comment on the proposed adoption of provisions from AHRI 340/360-2022 for setting airflow and ESP for WSHP testing.
Issue 12: DOE requests comment on its proposed instructions for setting airflow and ESP for ducted WSHP units with discrete-step fans.
Issue 13: DOE requests comment on its proposal for setting airflow and ESP for non-ducted WSHP units.
Issue 14: DOE requests comment on its proposed approach to adopt the provisions in AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 regarding primary and secondary capacity measurements.
Issue 15: DOE requests comment on the proposal to adopt the cyclic degradation equation specified in Section 6.2.3.2 of AHRI 340/360-2022 for WSHPs, which assumes continuous indoor fan operation when the compressor cycles off.
Issue 16: DOE requests comment on the proposed provisions to account for pump power to overcome both internal pressure drop and a representative level of liquid ESP for WSHPs with and without integral pumps. DOE specifically requests comment on the representativeness of 20 ft of water column as the liquid ESP for WSHPs.
Issue 17: DOE requests comment on the proposed requirements for using water or a brine of 15-percent solution by mass of sodium chloride as the test liquid. DOE also requests comment on the representativeness and test burden associated with permitting the use of different liquids for different tests.
Issue 18: DOE requests comments on the proposal to utilize the thermodynamic properties specified in ANSI/ASHRAE 37-2009 through DOE's proposed incorporation by reference of AHRI 340/360-2022.
Issue 19: DOE requests comment on its proposal to adopt the AHRI 340/360-2022 approach for setting liquid flow rate for the full-load cooling test, namely by specifying inlet and outlet liquid temperature conditions rather than using a manufacturer-specified flow rate.
Issue 20: DOE requests feedback on its proposals to use manufacturer-specified part-load liquid flow rates for part-load tests, that the part-load flow rate be no higher than the full-load flow rate, and to use the full-load liquid flow rate if no part-load liquid flow rate is specified.
Issue 21: DOE requests comment on its proposal to use the liquid flow rate determined from the full-load cooling test for all heating tests.
Issue 22: DOE requests comment on its proposal to specify an operating tolerance of 2 percent and a condition tolerance of 1 percent for liquid flow rate in all tests with a target liquid flow rate.
Issue 23: DOE requests comments on the proposal to adopt the provisions for line loss adjustments included in Sections 7.6.7.1 and 7.3.3.4 of ANSI/ASHRAE 37-2009 through incorporation by reference of AHRI 340/360-2022.
Issue 24: DOE requests comments on the proposal to adopt the calculation of discharge coefficients and air measurement apparatus requirements of ANSI/ASHRAE 37-2009.
Issue 25: DOE requests comments on the proposal to adopt the air condition measurement provisions in Appendix C of AHRI 340/360-2022.
Issue 26: DOE requests comments on the proposal to adopt the duct loss provisions in Section 7.3.3.3 of ASHRAE 37-2009.
Issue 27: DOE requests comments on the proposal to adopt the refrigerant charging requirements in Section 5.8 of AHRI 340/360-2022.
Issue 28: DOE requests comments on the proposal to adopt the voltage provisions in Section 6.1.3.1 of AHRI 340/360-2022.
Issue 29: DOE seeks comment on its proposals regarding specific components in 10 CFR 429.43, 10 CFR 429.134, and 10 CFR part 431, subpart F, appendix C1.
Issue 30: DOE requests comment on its proposal to adopt the methods for comparing relative efficiency of standard and non-standard indoor fan motors and integrated fan and motor combinations specified in Section D4 of AHRI 340/360-2022 in the proposed test procedure in 10 CFR part 431, subpart F, appendix C1, as well as in provisions for determination of represented values in 10 CFR 429.43(a) and provisions for DOE assessment and enforcement testing in 10 CFR 429.134.
Issue 31: DOE requests comment on its proposals related to represented values and verification testing of cooling capacity for WSHPs.
Issue 32: DOE requests comment on its understanding of the impact of the test procedure proposals in this NOPR. DOE also seeks specific feedback on the estimated costs to rate WSHP models with an AEDM.
Issue 33: DOE requests comment on the number of small OEMs DOE identified. DOE also seeks comment on the Department's estimates of potential costs these small manufacturers may incur as a result of its proposed amendments to the WSHP test procedure.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Small businesses.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Laboratories, Reporting and recordkeeping requirements, Small businesses.
This document of the Department of Energy was signed on August 3, 2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant 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
For the reasons stated in the preamble, DOE is proposing to amend parts 429 and 431 of Chapter II of Title 10, Code of Federal Regulations, as amended on July 27, 2022 (published at 87 FR 45164), as set forth below:
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The revision and addition read as follows.
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the
(c) * * *
(2) AHRI Standard 340/360-2022 (I-P) (“AHRI 340/360-2022”),
(a) * * *
(3) * * *
(ii) Water-Source Heat Pumps. When certifying to standards in terms of IEER, the following provisions apply.
(A) Individual model selection:
(B) The represented value of cooling capacity must be between 95 percent and 100 percent of the mean of the cooling capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, or between 95 percent and 100 percent of the cooling capacity output simulated by the AEDM as described in paragraph (a)(2) of this section.
(t)
(1)
(2)
(3)
42 U.S.C. 6291-6317; 28 U.S.C. 2461 note.
The additions and revisions read as follows:
(b) * * *
(4) AHRI Standard 340/360-2022 (I-P) (“AHRI 340/360-2022”),
(c) * * *
(2) ANSI/ASHRAE Standard 37-2009 (“ANSI/ASHRAE 37-2009”),
(3) ASHRAE errata sheet to ANSI/ASHRAE Standard 37-2009 (“ASHRAE 37-2009 TE”), issued March 27, 2019; IBR approved -for appendix C1 to this subpart.
(d) * * *
(1) ISO Standard 13256-1 (“ISO Standard 13256-1:1998”), “Water-source heat pumps—Testing and rating for performance—Part 1: Water-to-air and brine-to-air heat pumps,” approved 1998, IBR approved for appendix C to this subpart.
(b)
Manufacturers must use the results of testing under this appendix to determine compliance with the relevant standard at § 431.97 as that standard appeared in the January 1, 2022 edition of 10 CFR parts 200-499. Specifically, representations must be based on testing according to either this appendix or 10 CFR 431.96 as it appeared in the 10 CFR parts 200-499 edition revised as of January 1, 2022.
Starting on [
Starting on [
Starting on the compliance date for any amended energy conservation standards for water-source heat pumps based on IEER, any representations, including compliance certifications, made with respect to the energy use or energy efficiency of water-source heat pumps must be based on testing according to appendix C1 of this subpart.
Manufacturers may also to certify compliance with any amended energy conservation standards for water-source heat pumps based on IEER prior to the applicable compliance date for those standards, and those compliance certifications must be based on testing according to appendix C1 of this subpart.
DOE incorporated by reference in § 431.95 the entire standard for ISO 13256-1:1998. To the extent there is a conflict between the terms or provisions of a referenced industry standard and this appendix, the appendix provisions control.
Determine the energy efficiency ratio (EER) and coefficient of performance (COP) in accordance with ISO 13256-1:1998.
Section 3 of this appendix provides additional instructions for determining EER and COP.
3.1. If a manufacturer specifies a range of superheat, sub-cooling, and/or refrigerant pressure in its installation and operation manual for a given basic model, any value(s) within that range may be used to determine refrigerant charge or mass of refrigerant, unless the manufacturer clearly specifies a rating value in its installation and operation manual, in which case the specified rating value must be used.
3.2. The airflow rate used for testing must be that set forth in the installation and operation manuals being shipped to the commercial customer with the basic model and clearly identified as that used to generate the DOE performance ratings. If a rated airflow value for testing is not clearly identified, a value of 400 standard cubic feet per minute (scfm) per ton must be used.
Prior to the compliance date of amended standards for water-source heat pumps that rely on integrated energy efficiency ratio (IEER) published after January 1, 2022, representations with respect to the energy use or energy efficiency of water-source heat pumps, including compliance certifications, must be based on energy efficiency ratio (EER) testing according to this appendix C of this subpart.
Starting on [
Starting on the compliance date for any amended energy conservation standards for water-source heat pumps based on IEER, any representations, including compliance certifications, made with respect to the energy use or energy efficiency of water-source heat pumps must be based on testing according to this appendix.
Manufacturers may also certify compliance with any amended energy conservation standards for water-source heat pumps based on IEER prior to the applicable compliance date for those standards, and those compliance certifications must be based on testing according to this appendix.
DOE incorporated by reference in § 431.95 the entire standard for AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 (which includes ASHRAE 37-2009 TE). However, only certain enumerated provisions of AHRI 340/360-2022 are applicable, while the enumerated provisions of ANSI/ASHRAE 37-2009 are inapplicable as set out in this section 1. To the extent there is a conflict between the terms or provisions of a referenced industry standard and this appendix, the appendix provisions control, followed by AHRI 340/360-2022, followed by ANSI/ASHRAE 37-2009.
1.1. Applicable provisions.
1.1.1. AHRI 340/360-2022:
(a) Section 3 Definitions, except the following subsections: 3.2 (Basic Model), 3.4 (Commercial and Industrial Unitary Air-conditioning Equipment), 3.5 (Commercial and Industrial Unitary Heat Pump), 3.7 (Double-duct System), 3.8 (Energy Efficiency Ratio), 3.12 (Heating Coefficient of Performance), 3.14 (Integrated Energy Efficiency Ratio), 3.15 (Indoor Single Package Air-conditioners), 3.17 (Makeup Water), 3.23 (Published Rating), 3.26 (Single Package Air-Conditioners), 3.27 (Single Package Heat Pumps), 3.29 (Split System Air-conditioners), 3.30 (Split System Heat Pump), and 3.36 (Year Round Single Package Air-conditioners);
(b) Section 5 Test Requirements;
(c) Section 6 Rating Requirements, except the following subsections: 6.1.1.7, 6.1.2.1 (Values of Standard Capacity Ratings), 6.1.3.4.5, 6.1.3.5.4 (Heating Test for MZVAV Units), 6.1.3.5.5 (Part-Load Cooling Tests for MZVAV Units), 6.5 (Ratings), 6.6 (Uncertainty), and 6.7 (Verification Testing);
(d) Appendix A References—Normative;
(e) Appendix C Indoor and Outdoor Air Condition Measurement—Normative; and
(f) Appendix E Method of Testing Unitary Air Conditioning Products—Normative.
1.1.2. [Reserved]
1.2. Inapplicable provisions.
1.2.1. ANSI/ASHRAE 37-2009
(a) Section 1 Purpose, as specified in section 2.2 of this appendix;
(b) Section 2 Scope, as specified in section 2.2 of this appendix; and
(c) Section 4 Classification, as specified in section 2.2 of this appendix.
1.2.2. [Reserved]
Determine integrated energy efficiency ratio (IEER) and heating coefficient of performance (COP) in accordance with AHRI 340/360-2022 and ANSI/ASHRAE 37-2009; however, only the following enumerated provisions of AHRI 340/360-2022 are applicable, as set forth in section 2.1 of this appendix. All sections of ANSI/ASHRAE 37-2009 are applicable with the exception of provisions listed in section 2.2 of this appendix.
Sections 2 through 7 of this appendix provide additional instructions for testing. In cases where there is a conflict, the language of this appendix takes highest precedence, followed by AHRI 340/360-2022, followed by ANSI/ASHRAE 37-2009. Any subsequent amendment to a referenced document by the standard-setting organization will not affect the test procedure in this appendix, unless and until the test procedure is amended by DOE. Material is incorporated as it exists on the date of the approval, and a notice of any change in the incorporation will be published in the
2.1. Test requirements and test conditions specified for water-cooled equipment in AHRI 340/360-2022 and ANSI/ASHRAE 37-2009 are applicable to water-source heat pumps.
2.2. For units without integral fans, use test requirements and test conditions specified as “coil-only” in AHRI 340/360-2022 and ANSI/ASHRAE 37-2009.
2.3. When using the Outdoor Liquid Coil Method, when calculating the total heating capacity, use the ASHRAE 37-2009 TE heating capacity formula for section 7.6.5.1 of ANSI/ASHRAE 37-2009.
3.1. Non-Ducted Units.
These provisions apply to units that are not configured exclusively for delivery of conditioned air to the indoor space without a duct(s).
3.1.1. Target Airflow and ESP.
Determine the target airflow in accordance with Section 6.1.3.4 of AHRI 340/360-2022, using an external static pressure (ESP) of 0.00 in H
3.1.2. Airflow and ESP Tolerances and Set-Up.
Exclude Section 6.1.3.5 of AHRI 340/360-2022, and use the provisions in this section for indoor external static pressure and airflow set-up. For each test, set indoor airflow while operating the unit at the rating conditions specified for the test. After setting the airflow, no adjustments may be made to the fan control settings during the test.
3.1.2.1. Tolerances.
All tolerances for airflow and ESP specified in section 3.1.2 of this appendix for setting airflow and ESP are condition tolerances that apply for each test. Specifically, the average value of a parameter measured over the course of the test shall vary from the target value by no more than the condition tolerance. Operating tolerances for ESP and nozzle pressure drop are specified in Table 11 of AHRI 340/360-2022.
3.1.2.2. Use the manufacturer-specified fan control settings for all tests for which they are provided. Use the full-load cooling fan control settings specified by the manufacturer for all tests for which fan control settings are not specified. If there are no manufacturer-specified fan control settings for any tests, use the as-shipped fan control settings for all tests.
3.1.2.3. For all tests, conduct the test at 0.00 in H2O with a condition tolerance of −0/+0.05 in H2O.
3.1.2.4. For heating tests and part-load cooling tests for which there is no manufacturer-specified airflow and the cooling full-load rated indoor airflow is not used as the airflow for the test because there are manufacturer-specified fan control settings or other instructions used to obtain steady-state operation for the test, per the provisions of Section 6.1.3.4 of AHRI 340/360-2022, there is no airflow condition
3.1.2.5. If both the ESP and airflow cannot be simultaneously maintained within tolerance for any test, maintain the ESP within the required tolerance and use an airflow as close to the manufacturer-specified value as possible. The average airflow rate measured over the course of the test shall be within ±3% of the airflow rate measured after setting airflow for the test.
3.1.2.6. If section 3.1.2.5 of this appendix is used to set the full-load cooling airflow, use the measured full-load cooling airflow as the target airflow for all subsequent tests that call for the full-load cooling airflow.
3.2. Ducted Units.
These provisions apply to units that are configured for delivery of conditioned air to the indoor space with a duct(s).
3.2.1. For units with continuously variable-speed fans, set airflow and external static pressure in accordance with Sections 6.1.3.3, 6.1.3.4, and 6.1.3.5 of AHRI 340/360-2022.
3.2.2. For units without continuously variable-speed fans, set airflow and external static pressure in accordance with Sections 6.1.3.3., 6.1.3.4., and 6.1.3.5 of AHRI 340/360-2022, except use section 3.2.2.1 of this appendix in place of Sections 6.1.3.5.2.4 and 6.1.3.5.3.2.3 of AHRI 340/360-2022.
3.2.2.1. For two adjacent fan control settings, if both airflow and ESP tolerances cannot be met, (
4. Test Liquid, Liquid ESP, and Pump Effect.
4.1. The test liquid for all tests other than the optional HFL3 low-temperature heating test specified in Table 9 of this appendix must be water unless the manufacturer specifies to use a brine of 15% solution by mass of sodium chloride in water. The test liquid for the optional HFL3 low-temperature heating test must be a brine of 15% solution by mass of sodium chloride in water.
4.2. For units with an integral pump, set the external static pressure to 20 ft of water column, with a −0/+1 ft condition tolerance and a 1 ft operating tolerance.
4.3. For units without an integral pump, when calculating EER and COP, an addition for the pump effect, PE, must be added to the unit's measured power and determined using Equation 1 of this appendix. Use this adder in place of Section 6.1.1.7 of AHRI 340/360−2022.
4.4. Condenser section power (PCD) in Equation 4 of AHRI 340/360-2022 must be determined as follows (instead of determining via Section 6.2.3.2 of AHRI 340/360-2022):
4.4.1. For units with an integral pump, PCD is equal to the measured pump power.
4.4.2. For units without an integral pump, PCD is equal to the pump effect determined per section 4.3 of this appendix.
5. Cooling Rating.
5.1. Methods for Determining IEER.
Determine the integrated energy efficiency ratio (IEER) using one of two options, as described in the following sections 5.1.1 and 5.1.2 of this appendix.
Test at the four IEER inlet water temperatures specified for water-cooled equipment in Table 9 of AHRI 340/36-2022, and perform all tests according to sections 2 through 4 and section 7 of this appendix.
Except as adjusted for operation at low condenser temperatures per Section E7 of AHRI 340/360-2022, for part-load cooling tests, use manufacturer-specified liquid flow rates. For all part-load cooling tests, the liquid flow rate shall not exceed the liquid flow rate used for the cooling full-load tests. If the manufacturer-specified part-load cooling liquid flow rate is higher than the liquid flow rate used for the cooling full-load tests, use the liquid flow rate used for the cooling full-load tests. If no manufacturer-specified value for part-load cooling liquid flow rate is provided, use the liquid flow rate used for the cooling full-load tests. The condition tolerance on liquid flow rate in part-load tests is 1% of the target liquid flow rate.
Test at the inlet water temperatures described in Tables 2 and 3 of this appendix, then interpolate and extrapolate to the IEER inlet water temperatures specified in Table 4 of this appendix. Sections 5.1.2.1 through 5.1.2.6 of this appendix specify the steps required to determine IEER using Option 2.
5.1.2.1. Measure Capacity at Option 2 Inlet Water Temperatures.
For all units, conduct full-load cooling tests at the inlet water temperatures as specified in section 5.1.2.1.1 of this appendix. For staged capacity controlled and proportionally controlled units, conduct part-load cooling tests at the inlet water temperatures as specified in section 5.1.2.1.2 of this appendix. Perform all tests according to provisions outlined in sections 2 through 4 and 7 of this appendix. No part-load cooling tests are required for fixed-capacity controlled units.
For all tests, measure the following values: cooling capacity; total power; compressor power; condenser section power; control circuit power and any auxiliary loads; and indoor fan power. Condenser section power must be determined in accordance with section 4.4.1 and 4.4.2 of this appendix.
5.1.2.1.1. Full-load Tests.
For all units, perform tests to determine full-load capacity at each of the conditions specified in Table 2 of this appendix. Follow all provisions for full-load cooling airflow in section 3 of this appendix.
The full-load cooling liquid flow rate shall be determined during the “CFL3 high temperature” test in Table 2 of this appendix, using fixed inlet and outlet water temperatures. For the “CFL2 medium temperature” and “CFL1 low temperature” tests in Table 2 of this appendix, use the liquid flow rate obtained during the “CFL3 high temperature” test in Table 2 of this appendix with a condition tolerance on liquid flow rate of 1% of the target liquid flow rate.
5.1.2.1.2. Part-load Tests.
For staged-capacity controlled units and proportionally controlled units, additionally perform tests to determine part-load capacity at each of the conditions specified in Table 3 of this appendix. Perform all part-load tests using the minimum compressor speed of the unit. Follow all provisions for part-load cooling airflow in section 3 of this appendix.
Except as adjusted for operation at low condenser temperatures per Section E7 of AHRI 340/360-2022, for part-load cooling tests, use manufacturer-specified liquid flow rates. For all part-load cooling tests, the liquid flow rate shall not exceed the liquid flow rate used for the cooling full-load tests. If the manufacturer-specified part-load cooling liquid flow rate is higher than the liquid flow rate used for the cooling full-load tests, use the liquid flow rate used for the cooling full-load tests. If no manufacturer-specified value for part-load cooling liquid flow rate is provided, use the liquid flow rate used for the cooling full-load tests. The condition tolerance on liquid flow rate is 1% of the target liquid flow rate.
5.1.2.2. Interpolate and Extrapolate Measurements to IEER Entering Liquid Temperatures.
Use sections 5.1.2.2.1 and 5.1.2.2.2 of this appendix to interpolate and extrapolate the values measured in section 5.1.2.1 of this appendix from the inlet water temperatures used in Tables 2 and 3 of this appendix to the IEER inlet water temperatures specified in Table 4 of this appendix.
5.1.2.2.1. Full Load.
For all units, calculate the full-load capacity and total power at IEER points A through D using Equation 2 of this appendix and the parameters outlined in Table 5 of this appendix.
For fixed-capacity control units, also calculate the full-load compressor power, condenser section power, control circuit power and any auxiliary loads, and indoor fan power at IEER points B through D using Equation 2 of this appendix and the parameters outlined in Table 5 of this appendix.
The interpolated value of each parameter is designated by V
5.1.2.2.2. Part Load.
For staged-capacity controlled and proportionally controlled units, calculate the part-load capacity, total power, compressor power, condenser section power, control circuit power and any auxiliary loads, and indoor fan power at IEER points B through D using Equation 2 of this appendix and the parameters outlined in Table 6 of this appendix. The interpolated value of each parameter is designated by V
5.1.2.3. Calculate Full-load and Part-load EERs at IEER Points.
For all units, calculate the full-load EER for each IEER point A through D of Table 5 as the ratio of the full-load capacity in Btu/h to the full-load total power in W determined in section 5.1.2.2.1 of this appendix.
For staged capacity controlled and proportionally controlled units, also calculate the part-load EER for each IEER point B through D of Table 5 as the ratio of the part-load capacity in Btu/h to the part-load total power in W determined in section 5.1.2.2.2 of this appendix.
5.1.2.4. Determine Tested Percent Load at IEER Points B Through D.
For all units, use Equation 3 to divide the interpolated full-load capacity values at IEER points B through D (determined in section 5.1.2.2.1 of this appendix) by the full-load capacity at IEER point A (determined in section 5.1.2.2.1 of this appendix).
For staged capacity control units and proportionally controlled units, use Equation 3 to divide the interpolated part-load capacity values at IEER points B through D (determined in section 5.1.2.2.2 of this appendix), by the full-load capacity at IEER point A (determined in section 5.1.2.2.1 of this appendix).
The values calculated at this stage are referred to as “tested percent load” in section 5.1.2.5 of this appendix.
5.1.2.5. Determine EER at the IEER Load Level for IEER Points B Through D.
For each of the IEER points B through D of Table 5, determine the EER at the IEER percent load specified in Table 4 of this appendix (
5.1.2.5.1. Fixed-capacity Control Units.
For fixed-capacity control units, perform all adjustments of EER values by cyclic degradation of the full-load EERs to account for the impact of the compressor cycling to meet a load. Perform the adjustments as specified in section 5.1.2.5.4 of this appendix.
5.1.2.5.2. Staged Capacity Control Units and Proportionally Controlled Units.
For IEER points B through D of Table 5, if the part-load tested percent load calculated in section 5.1.2.4 of this appendix is below the minimum allowable tested percent load in Table 7 of this appendix, calculate EER for this IEER point by interpolating between the full-load EER and part-load EER as specified in section 5.1.2.5.3 of this appendix. If the part-load tested percent load calculated in section 5.1.2.4 of this appendix is above the maximum allowable tested percent load in Table 7 of this appendix, calculate EER for this point using the cyclic degradation adjustment in section 5.1.2.5.4 of this appendix.
5.1.2.5.3. Calculate EER by Interpolation Between Full Load and Part Load.
Calculate EER at a single IEER point by interpolating between the full-load tested percent load and the part-load tested percent load calculated in section 5.1.2.4 of this appendix to the IEER point load percentage specified in Table 4 of this appendix, as shown in Equation 4 of this appendix.
5.1.2.5.4. Calculate EER by Cyclic Degradation.
For fixed capacity control units, adjust the full-load EER at a single IEER point for cyclic degradation by using Equation 5 through Equation 7 of this appendix with values calculated for full load in section 5.1.2.2.1 of this appendix.
For staged capacity control and proportionally controlled units, adjust the part-load EER at a single IEER point for cyclic degradation by using Equation 5 through Equation 7 of this appendix with values calculated for part load in section 5.1.2.2.2 of this appendix.
5.1.2.6. Calculate IEER.
Use Equation 8 of this appendix to calculate IEER as a weighted mean of the EERs determined at each of the IEER points.
5.2. Optional Representations of EER.
Representations of EER at any full-load or part-load conditions, made using conditions specified in section 5.1.2.1.1 or 5.1.2.1.2 of this appendix and the provisions of sections 2 through 4 and 7 of this appendix are optional.
6. Heating Rating.
6.1. Liquid Flow Rate.
If IEER was determined using Option 1 in section 5.1 of this appendix, use the liquid flow rate determined from the “Standard Rating Conditions Cooling” test for water-cooled equipment as defined in Table 6 of AHRI 340/360-2022 for all heating tests. If IEER was determined using Option 2 in section 5.1 of this appendix, use the liquid flow rate determined from the CFL3 high temperature cooling test in section 5.1.2.1.1 of this appendix for all heating tests in Tables 8 and 9 of this appendix. The condition tolerance on liquid flow rate is 1%.
6.2. Methods for Determining COP.
Determine the COP using one of two options, as described in the following sections 6.2.1 and 6.2.2 of this appendix.
Determine COP according to the applicable provisions in sections 2 through 4 and 7 of this appendix using the conditions in Table 8 of this appendix. Use the liquid flow rate specified in section 6.1 of this appendix.
Test at the HFL3 and HFL2 conditions in Table 9 of this appendix, then interpolate to the HFL0 inlet water temperature specified in Table 8 of this appendix. Sections 6.2.2.1 and 6.2.2.2 of this appendix specify the steps required to determine COP using Option B.
6.2.2.2. Measure Capacity and Total Power at Option B Inlet Water Temperatures.
Conduct heating tests at the HFL3 and HFL2 conditions specified in Table 9 of this appendix according to the applicable provisions in sections 2 through 4 and 7 of this appendix. The liquid flow rate must be set as defined in section 6.1 of this appendix. For all tests, measure heating capacity and total power.
6.2.2.3. Interpolate Measurements to COP Entering Liquid Temperature.
Interpolate the heating capacity and total power values measured in section 6.2.2.1 of this appendix from the inlet liquid temperatures used in section 6.2.2.1 of this appendix to the inlet liquid temperature specified in Table 8 of this appendix. Use Equation 9 of this appendix and the parameters outlined in Table 10 of this appendix. The interpolated value of each parameter is designated by V
6.2.2.4. Calculate COP as the ratio of the interpolated heating capacity in W to the interpolated total power in W calculated in section 6.2.2.2 of this appendix.
6.3. Optional Representations of COP.
Representations of COP using the conditions specified in Table 9 of this appendix are optional and are determined according to the applicable provisions of sections 2 through 4 and 7 of this appendix. The liquid flow rate must be set as defined in section 6.1 of this appendix.
Representations of part-load COP using the conditions specified in Table 11 of this appendix are optional and are determined according to the applicable provisions of sections 2 through 4 and 7 of this appendix. For part-load heating tests, use manufacturer-specified liquid flow rates. For all part-load heating tests, the liquid flow rate shall not exceed the liquid flow rate defined in section 6.1 of this appendix. If the manufacturer-specified part-load heating liquid flow rate is higher than the liquid flow rate used for the cooling full-load tests, use the liquid flow rate used for the cooling full-load tests. If no manufacturer-specified value for part-load heating liquid flow rate is provided, use the liquid flow rate defined in section 6.1 of this appendix. The condition tolerance on liquid flow rate is 1%.
When testing a WSHP that includes any of the features listed in Table 12 of this appendix, test in accordance with the set-up and test provisions specified in Table 12 of this appendix.