Agricultural Marketing Service
Animal and Plant Health Inspection Service
Food and Nutrition Service
Rural Business-Cooperative Service
Census Bureau
Foreign-Trade Zones Board
Industry and Security Bureau
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Air Force Department
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Fish and Wildlife Service
Land Management Bureau
Drug Enforcement Administration
Occupational Safety and Health Administration
Institute of Museum and Library Services
Federal Aviation Administration
Federal Highway Administration
National Highway Traffic Safety Administration
Foreign Assets Control Office
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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U.S. Customs and Border Protection, Department of Homeland Security.
Final rule.
The U.S. Department of Homeland Security (DHS) is issuing a final rule to amend its regulations to exempt portions of a newly established system of records titled, “DHS/U.S. Customs and Border Protection (CBP)-027 Customs Broker Management (CBM) System of Records” from certain provisions of the Privacy Act. Specifically, the Department exempts portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
This final rule is effective March 31, 2023.
For general questions please contact: Debra Danisek,
The U.S. Department of Homeland Security (DHS) Customs and Border Protection (CBP) published a notice of proposed rulemaking in the
DHS/CBP invited comments on both the notice of proposed rulemaking (NPRM) and System of Records Notice (SORN).
DHS received no comments on the NPRM and no comments on the SORN. The Department will implement the rulemaking as proposed.
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:
6 U.S.C. 101
Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a and 552 note.
88. The DHS/CBP-027 Customs Broker Management System of Records consists of electronic and paper records and will be used by DHS and its components. DHS/CBP-027 Customs Broker Management System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; and national security and intelligence activities. DHS/CBP-027 Customs Broker Management System of Records maintains information about individuals, associations, corporations, or partnerships to administer the Customs Broker License Exam, determine suitability for providing an individual a Customs Broker license, and determine whether a licensed Customs Broker continues to meet the eligibility requirements to maintain a Customs Broker license.
The Secretary of Homeland Security has exempted this system pursuant to exemption 5 U.S.C. 552a(j)(2) of the Privacy Act, portions of this system are exempt from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and (e)(8); (f); and (g). Additionally, the Secretary has exempted this system pursuant to 5 U.S.C. 552a(k)(2) of the Privacy Act from subsections (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f). Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.
(b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities when weighing and evaluating all available information. In
(c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.
(d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.
(i) From subsection (g)(1) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.
In rule document 2023-06285, appearing on pages 18005 through 18006, in the issue of Monday, March 27, 2023, the subject line is corrected to read as set forth above.
Consumer Financial Protection Bureau.
Preemption determination.
After considering public comments, the Consumer Financial Protection Bureau (CFPB) has determined that commercial financing disclosure laws in California, New York, Utah, and Virginia are not preempted by the Truth in Lending Act.
This determination is issued on March 31, 2023.
Christopher Shelton or Anand Das, Senior Counsels, Legal Division, or Joel Singerman, Senior Counsel, Office of Regulations, at 202-435-7700. If you require this document in an alternative electronic format, please contact
The Truth in Lending Act (TILA) ensures that key information about consumer credit transactions is disclosed to consumers. TILA preempts State disclosure laws only if they are “inconsistent” with it. The CFPB is authorized to determine whether there is an inconsistency.
In recent years, New York, California, Utah, and Virginia have enacted laws that require disclosures for commercial financing transactions to businesses, which do not receive TILA disclosures in those transactions. The CFPB received a request from a trade association (the requesting party) that it determine that TILA preempts New York's commercial financing disclosure law. In response, the CFPB published for public comment a notification of intent to make a preemption determination. In the notification of intent, the CFPB considered the requesting party's initial arguments and preliminarily found that New York's law was not preempted. On the CFPB's own motion, the CFPB also provided notice that it may make parallel findings regarding the California, Utah, and Virginia laws.
The CFPB received fifteen comments on the notification of intent. The Attorney General of California, two trade associations, a lender to small businesses, a group of consumer advocacy organizations, and a group of lenders, investors, and small business advocates all supported the CFPB's notification of intent. On the other hand, the requesting party, several other trade associations, and a different lender to small businesses argued that some or all of the four States' laws are preempted.
After analyzing the comments, the CFPB has concluded that the State commercial financing disclosure laws of California, New York, Utah, and Virginia are not preempted by TILA. Congress adopted a narrow standard for TILA preemption that displaces State law only in the case of “inconsistency.” This means that States have broad authority to establish their own protections for their residents, both within and outside the scope of TILA. As relevant here, commercial financing transactions to businesses—and any disclosures associated with such transactions—are beyond the scope of TILA's statutory purposes, which concern consumer credit.
Congress enacted TILA in 1968 because it found that “competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit.”
In 1968, Congress authorized the Board of Governors of the Federal Reserve System (Board) to issue regulations under TILA.
According to TILA section 111(a)(1), TILA does not “annul, alter, or affect the laws of any State relating to the disclosure of information in connection with credit transactions, except to the extent that those laws are inconsistent with the provisions of [TILA], and then only to the extent of the inconsistency.”
As explained by TILA's legislative history, this provision “sets forth the basic policy that the Federal statute does not preempt State legislation.”
Section 1026.28(a)(1) of the CFPB's Regulation Z implements the inconsistency standard from TILA section 111(a)(1).
The first sentence, tracking TILA section 111(a)(1), provides that “State law requirements” that are “inconsistent” with TILA and Regulation Z are preempted.
The second sentence provides, as an example, that a “State law is inconsistent if it requires a creditor to make disclosures or take actions that contradict the requirements of the Federal law.”
The third sentence, in turn, provides examples of “contradictory” disclosures or actions by a creditor: “A State law is contradictory if it requires the use of the same term to represent a different amount or a different meaning than the Federal law, or if it requires the use of a term different from that required in the Federal law to describe the same item.”
Based on Board precedents, the examples in the third sentence are only a subset of the second sentence, which in turn is only a subset of the first sentence.
Because none of the four State commercial financing disclosure laws involve a TILA “creditor,”
The requesting party submitted a comment arguing that the third sentence means that State laws are automatically preempted whenever they use the terms finance charge and APR to represent different amounts from Regulation Z. But this comment reads the third sentence out of its context. The third sentence provides examples of the second sentence's discussion of “contradictory” disclosures or actions by “creditors.” Conduct by non-creditors is outside its scope and has to be analyzed using the overall inconsistency standard in the first sentence.
The reading of the third sentence proffered by the requesting party would result in implausibly sweeping preemption. Although the requesting party focuses its argument on the finance charge and APR, the reading would logically prevent State disclosures—regardless of topic—from using other Regulation Z disclosure terms such as “File #,” “Closing Date,” “Deposit,” or “County Taxes,” without aligning with technical Regulation Z definitions that may have no connection with the topic of the State disclosures.
The notification of intent stated that the CFPB was considering whether it should clarify how the CFPB articulates the standard for TILA preemption and requested comment on that issue. The Attorney General of California commented that the standard should be understood to align with conflict preemption.
The CFPB agrees that TILA's and Regulation Z's inconsistency standard aligns with conflict preemption. In conflict preemption, there is a conflict either when it is “
The Board's precedents align with conflict preemption. With respect to the impossibility prong, the Board at times assessed whether “a creditor can comply with both the State and Federal provisions.”
The Board's consideration of preemption instead typically focused on the obstacle prong. When determining whether disclosures or actions by a creditor contradicted TILA, the Board held that a State law is preempted when “it significantly impedes the operation of the Federal law or interferes with the purposes of the Federal statute.”
The conclusion that inconsistency under TILA aligns with conflict preemption is reinforced by case law. The District of Columbia Circuit has applied a conflict-preemption analysis when considering whether TILA preempted State law.
In order to determine whether State law “stands as an obstacle” to TILA's purposes, it is necessary to carefully consider those statutory purposes. Congress has delineated TILA's main purposes in purpose provisions. The relevant purpose provision in most disclosure contexts, including the present one, is section 102(a): “a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.”
The group of consumer advocacy organizations argued in a comment that preemption under TILA should not be based on conflict with the purposes of TILA. The organizations expressed concern about the vague way in which purposes could conceivably be articulated to preempt State law.
The CFPB notes that evaluating whether or not State law stands as an obstacle to a statute's purposes is a well-established prong of conflict preemption. The CFPB believes that the purposes of TILA, when carefully considered, provide appropriate guideposts for a narrow preemption standard that respects rather than undermines State law. When construing TILA's purposes, it is important to bear in mind that Congress's “basic policy” in drafting TILA was “that the Federal statute does not preempt State legislation.”
The Attorney General of California requested that the CFPB emphasize the statement in the Regulation Z commentary that: “Generally, State law requirements that call for the disclosure of items of information not covered by the Federal law, or that require more detailed disclosures,” are not preempted.
Relatedly, the group of consumer advocacy organizations asked the CFPB to note that TILA does not prevent States from affording greater protections to consumers. The CFPB agrees that, in the words of the District of Columbia Circuit: “Nothing in TILA or its legislative history suggests that Congress intended the Act's disclosure regime to provide the maximum protection to which borrowers are entitled nationwide; States remain free to impose greater protections for borrowers.”
TILA section 111(a)(1) provides that, in a scenario where there is an inconsistency, State law is preempted “
After establishing the inconsistency standard discussed above, TILA section 111(a)(1) provides that “the Bureau shall determine whether any such inconsistency exists,” upon the Bureau's own motion or upon the request of any creditor, State, or other interested party.
Congress added the authority for preemption determinations to section 111(a)(1) in 1980.
In addition to the CFPB's authority under TILA, section 554(e) of the Administrative Procedure Act authorizes any agency, in its sound discretion, to issue a declaratory order to terminate a controversy or remove uncertainty.
Although not required, the CFPB consulted the Board, Federal Deposit Insurance Corporation, Federal Trade Commission, National Credit Union Administration, and Office of the Comptroller of the Currency as part of its deliberative process.
This part V discusses the California Commercial Financing Disclosures Law
Both the California and New York laws require “providers” to issue disclosures before consummation of certain commercial financing transactions, “intended by the recipient for use primarily for
The California and New York disclosures include a “finance charge” and “annual percentage rate” (APR). These amounts are calculated by reference to the formulas that would hypothetically be used under the CFPB's Regulation Z in order to calculate the finance charge and APR, as if the transactions were consumer credit transactions, with certain specifications added by California and New York.
After considering the comments, the CFPB concludes that the California or New York laws are not inconsistent with TILA and so are not preempted. No commenter has suggested that compliance with these State laws as well as with TILA and Regulation Z is “impossible.”
Businesses' understanding of credit available to them for business purposes is an important policy issue, but it is not a purpose of TILA and has been left to the States to address. As TILA's legislative history explains, Congress decided when enacting TILA in 1968 not to focus on lending to businesses: “By limiting the bill to the field of consumer credit, the committee believes it is providing disclosure requirements in the area where it is most essential.”
Commenters advocating preemption have not shown that consumers—when shopping for credit that they intend to use primarily for personal, family, or household purposes—would somehow be prevented from understanding the terms of credit available to them for those purposes, by State disclosures provided in different (business-purpose) transactions. The CFPB notes that Regulation Z places the responsibility for ascertaining the borrower's intended purpose on the would-be creditor.
TILA coverage depends on the primary purpose, so it is possible for a borrower to use the proceeds from a credit transaction primarily for business purposes but also to a lesser degree for personal purposes, in which case TILA disclosures would not be required. As noted above, TILA's disclosure regime concerned “the area where it is most essential,” namely “consumer credit,” which is an expansive category but subject to the primary-purpose standard.
The requesting party submitted a comment likening the California and New York laws to an Indiana law that the Board determined was preempted in 1988, but they are quite different.
Aside from State disclosure forms provided to borrowers individually, some comments asserted that advertisements for commercial financing that include APRs calculated using California or New York's formulas could cause confusion. As background, under Regulation Z there is a requirement that some advertisements for consumer credit transactions include the TILA APR.
For these reasons, the Consumer Financial Protection Bureau determines that the California Commercial Financing Disclosures Law, Financial Code sections 22800 to 22805, is not inconsistent with chapters 1, 2, and 3 of the Truth in Lending Act.
The Consumer Financial Protection Bureau also determines that the New York Commercial Finance Disclosure Law, Financial Services Law sections 801 to 811, is not inconsistent with chapters 1, 2, and 3 of the Truth in Lending Act.
The Utah Commercial Financing Registration and Disclosure Act requires disclosures for certain commercial financing transactions, which do “not include a transaction from which the resulting proceeds are intended to be used for personal, family, or household purposes.”
For these reasons, the Consumer Financial Protection Bureau determines that the Utah Commercial Financing Registration and Disclosure Act, Utah Code sections 7-27-101 to 7-27-301, is
Chapter 22.1 of title 6.2 of the Code of Virginia requires disclosures in connection with sales-based financing to a recipient.
The requesting party has made an argument that the Virginia law's finance charge disclosure is nevertheless preempted. However, this argument appears to rely on a misunderstanding of an aspect of TILA that is distinct from the Act's preemption standard. TILA section 111(a)(2), which neighbors the preemption provision in section 111(a)(1), authorizes the CFPB to determine that a State disclosure “is substantially the same in meaning as” a TILA disclosure.
The requesting party's comment appears to conflate section 111(a)(2) (or more specifically the Regulation Z provision and commentary implementing section 111(a)(2)
For these reasons, the Consumer Financial Protection Bureau determines that chapter 22.1 of title 6.2 of the Code of Virginia is not inconsistent with chapters 1, 2, and 3 of the Truth in Lending Act.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class D airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet above the surface at Key West International Airport and Key West Naval Air Station (NAS), FL, as a result of biennial airspace evaluations. This action also updates the geographic coordinates for the airport and the Key West VORTAC.
Effective 0901 UTC, June 15, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
A copy of the notice of proposed rulemaking (NPRM), all comments received, this final rule, and all background material may be viewed online at
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
Jennifer Ledford, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone: (404) 305-5946.
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 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 airspace for Key West International Airport and Key West Naval Air Station (NAS), FL, to support IFR operations in the area.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2022-1613 in the
Subsequent to the publication of the Notice of Proposed Rulemaking, the FAA found the Key West International Airport geographic coordinates to be incorrect, as well as the geographic coordinates describing the Key West International Airport Class D airspace and Key West Naval Air Station Class D airspace points of intersection. This action corrects the errors. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Class D and E airspace designations are published in Paragraphs 5000, 6002, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates will be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
This action amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface for Key West International Airport and Key West Naval Air Station (NAS) by extending the airspace for each airport from within a 6.4-mile radius to a 6.5-mile radius, and by updating the airport's geographic coordinates and the geographic coordinates describing the intersections of Class D airspace, to coincide with the FAA's database.
In addition, this action replaces the outdated terms Airport/Facility Directory with the term Chart Supplement and Notice to Airmen with the term Notice to Air Missions, in the Class D and Class E airspace descriptions.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 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.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 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 the surface to and including 2,500 feet MSL beginning at Lat. 24°37′11″ N, long. 81°44′41″ W; to Lat. 24°33′04″ N, long. 81°43′48″ W; to Lat. 24°31′15″ N, long. 81°45′22″ W; to Lat. 24°30′40″ N, long. 81°45′15″ W; thence counterclockwise via the 5.3-mile radius of Key West NAS to the intersection of the 3.9-mile radius of the Key West International Airport, thence clockwise via the 3.9-mile radius of the Key West International Airport to the point of beginning. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from the surface to and including 2,500 feet MSL within a 5.3-mile radius of Key West NAS, excluding that airspace within the Key West International Airport Class D airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Air Missions. The effective date and time will thereafter by continuously published in the Chart Supplement.
That airspace extending upward from the surface within 3.1 miles each side of the Key West VORTAC 309° radial extending from the 3.9-mile radius of the Key West International Airport and the 5.3-mile radius of Key West NAS to 7 miles northwest of the Key West VORTAC. This Class E airspace area is effective during the specific dates and time established in advance by a Notice to Air Missions. The effective date and time
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Key West International Airport and within 3.1 miles each side of the Key West VORTAC 309° radial, extending from the 6.5-mile radius to 7 miles northwest of the Key West VORTAC; within a 6.8-mile radius of Key West NAS (Boca Chica).
Coast Guard, Department of Homeland Security (DHS).
Notification of enforcement of regulation.
The Coast Guard will enforce the California Half Ironman Triathlon special local regulations on the waters of Oceanside, California on April 1, 2023. These special local regulations are necessary to provide for the safety of the participants, crew, spectators, sponsor vessels, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area unless authorized by the Captain of the Port, or his designated representative.
The regulations in 33 CFR 100.1101 will be enforced from 6 a.m. through 10 a.m. on April 1, 2023, for the locations described in item 2 in Table 1 of § 100.1101.
If you have questions about this publication of enforcement, call or email Lieutenant Junior Grade Shera Kim, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278-7656, email
The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the California Half Ironman Triathlon in Oceanside, CA, in 33 CFR 100.1101, for the locations described in Table 1, Item 2 of that section from 6 a.m. until 10 a.m. on April 1, 2023. The location includes the waters of Oceanside Harbor, CA, including the entrance channel. This enforcement action is being taken to provide for the safety of life on navigable waterways during the event. The Coast Guard's regulation for recurring marine events in the San Diego Captain of the Port Zone identifies the regulated entities and area for this event. Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area, unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.
In addition to this document in the
If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.
Coast Guard, DHS.
Notification of enforcement of regulations.
The Coast Guard will enforce multiple safety zones located in federal regulations for recurring marine events taking place in July 2023. This action is necessary and intended for the safety of life and property on navigable waters during these events. During the enforcement periods, no person or vessel may enter the respective safety zone without the permission of the Captain of the Port Buffalo or a designated representative.
The Coast Guard will enforce regulations listed in 33 CFR 165.939 Table 165.939, under (b) July Safety Zones, according to the schedule listed in the
If you have questions about this notice of enforcement, call or email LT. Jared Stevens, Waterways Management Division, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216-937-0124, email
The Coast Guard will enforce multiple safety zones for annual events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939, Table 165.939, (b) July Safety Zones, for events occurring in the month of July as listed in the
The safety zones the Coast Guard will enforce are listed in 33 CFR 165.939
(3) High Speed Boat Races (Eastlake Willoughby Offshore Grand Prix)—from 11:45 p.m. through 5:15 p.m. on July 8 and 9, 2023;
(4) Downtown Cleveland Alliance July 4th Fireworks (Cleveland July 4th Fireworks)—from 9:45 p.m. through 10:45 p.m. on July 4, 2023;
(5) Mentor Harbor Yacht Club Fireworks (Mentor Harbor Yacht Club)—from 9:15 p.m. through 10:45 p.m. on July 3, 2023;
(7) Lorain Independence Day Celebration (Lorain Independence Day Fireworks Display)—from 9:45 p.m. through 10:15 p.m. on July 4, 2023;
(8) Conneaut Festival (Conneaut Port Authority 4th of July Fireworks Display)—from 9:45 p.m. through 10:45 p.m. on July 3, 2023;
(9) Fairport Harbor Mardi Gras—from 9:45 p.m. through 10:45 p.m. on July 2, 2023;
(10) Sheffield Lake Community Days (City of Sheffield Lake Fireworks)—from 8:45 p.m. through 10:45 p.m. on July 21, 2023;
(11) Bay Village Independence Day Celebration—from 9:45 p.m. through 10:45 p.m. on July 4, 2023;
(12) Lake Erie Open Water Swim (2023 Brogan Open Water Classic)—from 6:45 a.m. through 11:15 a.m. on July 22, 2023; and
(30) Wine and Walleye Festival Fireworks (Wine and Walleye Fireworks)—from 8:15 p.m. through 11 p.m., on July 22, 2023.
This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Coast Guard, Department of Homeland Security (DHS).
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain waters of the Potomac River. This action is necessary to provide for the safety of life on these navigable waters at the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge during demolition operations from March 30, 2023, through April 30, 2023. This rulemaking would prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port, Maryland-National Capital Region or a designated representative.
This rule is effective without actual notice from March 31, 2023, through April 30, 2023. For the purposes of enforcement, actual notice will be used from March 30, 2023, until March 31, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Samuel Danus, Sector Maryland-NCR, Waterways Management Division, U.S. Coast Guard: telephone 410-576-2519, email
On March 10, 2023, Skanska-Corman-McLean, Joint Venture, notified the Coast Guard that the company will be conducting bridge demolition operations at the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge. The work described by the contractor requires the use of explosives, and debris removal and hydrographic surveying equipment. During explosive detonation periods, there can be no marine traffic transiting near or around the bridge for safety reasons.
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. Demolition operations involving explosives will occur at the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge across the Potomac River and immediate action is needed to respond to the potential safety hazards associated with bridge demolition. Hazards from the demolition operations include low-hanging or falling ropes, cables, large piles and cement cast portions, dangerous projectiles, and/or other debris. We must establish this safety zone by March 30, 2023, to guard against these hazards.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port (COTP) has determined that potential hazards associated with bridge demolition starting March 30, 2023, will be a safety concern for anyone near the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge demolition site. This rule is needed to protect personnel,
The COTP is establishing a safety zone from 12:01 a.m. on March 30, 2023, to 11:59 p.m. on April 30, 2023. The safety zone will cover the following areas:
Area 1. All navigable waters of the Potomac River, encompassed by a line connecting the following points beginning at 38°21′38.74″ N, 077°00′52.99″ W, thence east to 38°21′52.67″ N, 076°59′2.51″ W, thence south along the shoreline to 38°21′43.45″ N, 076°58′56.22″ W, thence west to 38°21′28.91″ N, 077°00′52.81″ W, and thence north along the shoreline back to the beginning point, located in King George County, VA. Area 2. All navigable waters of the Potomac River, within 1,500 feet of the explosives barge located in approximate position 38°21′21.47″ N, 076°59′45.40″ W.
The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled demolition and debris removal. Except for marine equipment and vessels operated by Skanska-Corman-McLean, Joint Venture, or its subcontractors, no vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The term designated representative also includes an employee or contractor of Skanska-Corman-McLean, Joint Venture for the sole purposes of designating and establishing safe transit corridors, to permit passage into or through the safety zone, or to notify vessels and individuals that they have entered the safety zone and are required to leave.
The COTP will notify the public that the safety zone will be enforced by all appropriate means to the affected segments of the public, as practicable, in accordance with 33 CFR 165.7(a). Such means of notification will also include, but are not limited to, Broadcast Notice to Mariners. Vessels or persons violating this rule are subject to the penalties set forth in 46 U.S.C. 70036 and 46 U.S.C. 70052. The regulatory text appears at the end of this document.
We developed this 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 rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location and time of year of the safety zone. The temporary safety zone is approximately 3000 yards in width and 350 yards in length. This safety zone would impact a small designated area of the Potomac River for 32 total days, but we anticipate that there would be no vessels that are unable to conduct business. Excursion vessels and commercial fishing vessels are not impacted by this rulemaking. Excursion vessels do not operate in this area, and commercial fishing vessels are not impacted because of their draft. Some towing vessels may be impacted, but bridge project personnel have been conducting outreach throughout the project in order to coordinate with those vessels. During explosive detonations, the Coast Guard will have law enforcement assets on-scene to enforce the safety zone immediately before, during and after explosive detonations. This safety zone would be established outside the normal recreational boating season for this area, which occurs during the summer season. Moreover, the Coast Guard would issue Local Notices to Mariners and a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.
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 rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
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 rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed 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). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will 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 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
We have analyzed this 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 32 total days that would prohibit entry within a portion of the Potomac River. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A 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
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(1)
(2)
(b)
(c)
(2) Mariners requesting to transit any of the safety zone areas in paragraph (a) of this section must first contact the Skanska-Corman-McLean, Joint Venture designated representative, the on-site project manager, by telephone number 785-953-1465 or on Marine Band Radio VHF-FM channels 13 and 16 from the pusher tug Miss Stacy. If permission is granted, mariners must proceed at their own risk and strictly observe any and all instructions provided by the COTP, Skanska-Corman-McLean, Joint Venture, or designated representative to the mariner regarding the conditions of entry to and exit from any area of the safety zone. The COTP or the COTP's representative can be contacted by telephone number 410-576-2693 or on Marine Band Radio VHF-FM channel 16 (156.8 MHz).
(3) The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue marine information broadcasts on VHF-FM marine band radio announcing specific enforcement dates and times.
(d)
(e)
Environmental Protection Agency (EPA).
Interim final determination.
The Environmental Protection Agency (EPA) is making an interim final determination that the State of California has submitted a rule that satisfies the requirements of title I, part D of the Clean Air Act (CAA or “Act”) permitting program for areas under the jurisdiction of the El Dorado County Air
This interim final determination is effective on March 31, 2023. However, comments will be accepted until May 1, 2023.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0910 at
Camille Cassar, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105; by phone: (415)-947-4164; or by email to
Throughout this document, the terms “we,” “us,” and “our” refer to the EPA.
On February 2, 2000, the EPA issued a final limited approval and limited disapproval action addressing certain revisions to the District portion of the California State Implementation Plan (SIP) (“2000 NSR action”).
On December 7, 2021, the District adopted Rule 523-1, and on March 9, 2022, the California Air Resources Board submitted Rule 523-1 to the EPA for approval into the El Dorado County portion of the California SIP (“2022 NSR Submittal”). Rule 523-1 was intended to address all currently applicable NNSR program requirements under title I, part D of the Act, including all the provisions necessary to correct the deficiencies with the District's NNSR program that formed the basis for the EPA's limited disapproval in the 2000 NSR action. In the Proposed Rules section of this
The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment, as described in this final determination and in our proposed approval of the District's 2022 NSR Submittal, with respect to the deficiencies identified as the basis for our limited approval in the 2000 NSR Action, we will take final action proposing to lift this deferral of sanctions under 40 CFR 52.31. If no comments are submitted that change our assessment, then all sanctions and any sanction clocks triggered by our 2000 NSR Action will be permanently terminated on the effective date of our final approval of the 2022 NSR Submittal.
We are making an interim final determination to defer CAA section 179 sanctions associated with our February 2, 2000 limited disapproval of the District's NNSR permitting program. This determination is based on our concurrent proposal to fully approve the District's 2022 NSR submittal, which resolves the deficiencies that triggered sanctions under section 179 of the CAA.
Because the EPA has preliminarily determined that the District's 2022 NSR Submittal addresses the deficiencies identified in the February 2, 2000 limited disapproval action and is fully approvable, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). However, by this action, the EPA is providing the public with a chance to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.
The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the District's submittal and, through its proposed action, is indicating that it is more likely than not that it corrects the deficiencies that were the basis for the action that started the sanctions clocks. Therefore, it is not in the public interest to impose sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while we complete our rulemaking process on the approvability of the District's submittal. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction (5 U.S.C. 553(d)(1)).
This action defers sanctions and imposes no additional requirements.
This proposed 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 PRA. This action defers sanctions and imposes no new requirements.
I certify 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. This action defers sanctions and imposes no new requirements.
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 Order 13175. This action defers sanctions and imposes no new requirements. In addition, this action does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental 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 does not concern an environmental health risk or safety risk.
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.
Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.
The EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations, and/or Indigenous peoples. This action defers sanctions in accordance with CAA regulatory provisions and imposes no additional requirements.
Although this action does not concern human health or environmental conditions, the EPA identifies and addresses environmental justice concerns by promoting meaningful involvement in this action through providing the public with an opportunity to comment on this deferral of sanctions as well as the opportunity to comment on our proposed approval of the District's 2022 NSR submittal in the Proposed Rules section of this
This action is subject to the Congressional Review Act (CRA), and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in section II of this preamble, including the basis for that finding.
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 30, 2023. Filing a petition for reconsideration by the EPA Administrator of this action does not affect the finality of this action for the purpose of judicial review nor does it extend the time within which petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and
Temporary rule; closure.
NMFS is prohibiting directed fishing for pollock in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2023 total allowable catch of pollock in the West Yakutat District of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), March 29, 2023, through 2400 hours, A.l.t., December 31, 2023.
Obren Davis, 907-586-7228.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2023 total allowable catch (TAC) of pollock in the West Yakutat District of the GOA is 7,523 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).
In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2023 TAC of pollock in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 7,323 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in the West Yakutat District of the GOA.
While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the closure of pollock in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 27, 2023.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Food and Nutrition Service (FNS), USDA.
Proposed rule; extension of comment period.
The USDA Food and Nutrition Service is extending the public comment period on the proposed rule, “Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans,” which published in the
The comment period of the proposed rule published February 7, 2023, at 88 FR 8050, is extended through May 10, 2023. To be assured of consideration, written comments on this proposed rule must be received on or before May 10, 2023.
The Food and Nutrition Service invites interested persons to submit comments on this proposed rule. Comments may be submitted by any of the following methods:
•
•
• All comments submitted in response to this proposed rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. The Food and Nutrition Service will make the comments publicly available on the internet via
Tina Namian, School Meals Policy Division—4th floor, Food and Nutrition Service, 1320 Braddock Place, Alexandria, VA 22314; telephone: 703-305-2590.
The Food and Nutrition Service is extending the public comment period on the proposed rule “Child Nutrition Programs: Revisions to Meal Patterns Consistent With the 2020 Dietary Guidelines for Americans,” which published on February 7, 2023, at 88 FR 8050. This rulemaking proposes long-term school nutrition standards based on the
Agricultural Marketing Service, USDA.
Proposed rule.
The Agricultural Marketing Service (AMS) proposes to revise the United States Standards for Soybeans by removing soybeans of other colors (SBOC) as an official factor. In addition, AMS proposes to revise the table of Grade Limits and Breakpoints for Soybeans to reflect this change.
Comments must be submitted on or before May 1, 2023.
Barry Gomoll, USDA AMS; Telephone: (202) 720-8286; Email:
This proposed action, pursuant to 5 U.S.C. 551
AMS is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all 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 both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This proposed action falls within a category of
This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications.
AMS has determined that this proposed rule is unlikely to 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.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed action is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.
AMS regularly reviews grain standards to ensure their effectiveness in meeting the quality requirements of grain moving in the value chain. Under the current soybean standards, soybeans of other colors (SBOC) is a grade determining factor in the class Yellow Soybeans. As such, SBOC content is not typically a factor that determines the numerical grade for a sample. Damage or foreign material typically has the greatest impact on the numerical grade of a given soybean shipment.
Until recently, yellow soybeans have shown phenotypic stability in seedcoat color; however, modern breeding technologies have produced varieties that have a higher tendency to demonstrate variations in seed coat color. Industry interactions (with producer groups, exporters, grain elevators, and grain processors) suggest that these varieties are gaining popularity with soybean growers and likely will be present in the value chain for the foreseeable future.
Official inspection data shows a sharp rise in the amount of SBOC found in soybean samples over the past two years. In 2019 and 2020, only 0.4% and 0.2%, respectively, of all inspected soybean lots failed to meet the standard for U.S. No. 1 Yellow Soybeans, as was typical in the years leading up to 2021. In 2021, 3.1% of all inspected soybean lots failed to meet the standard for U.S. No. 1 Yellow Soybeans, followed by 8.8% of lots inspected so far in 2022. The figures for 2022 also show an uneven distribution based on mode of conveyance, with 17.7% of container lot inspections failing to meet the standard versus 5.3% of shiplot inspections.
The increase in SBOC over the past two years has made it more difficult for shippers of U.S. soybeans to meet contract grade requirements, based solely on the factor of SBOC. Although research shows that SBOC do not impact the intrinsic quality of soybeans, such soybeans, present at certain levels, still influence the final grade of soybeans because of the current soybean grade standards.
The Department of Agriculture (USDA) Grain Inspection Advisory Committee recommended, at its June 2022 meeting in Kansas City, MO, that the Federal Grain Inspection Service conduct a study to determine whether the presence of higher SBOC has any impact on the oil and protein content of soybeans. The results of the study show no significant correlation between SBOC and protein and oil content.
Several producer and exporter groups have reached out to AMS to request that the soybean standards be reviewed to address the marketing challenges introduced by the higher presence of SBOC in U.S. soybeans. The groups requested that consideration be given, and provision be made, for those soybean processors who may desire soybeans with yellow seedcoats. In such instances, applicants for service would maintain the ability to request that soybeans be inspected for SBOC.
This proposed rule would remove SBOC as a criterion for determining the grade of U.S. Yellow soybeans (
A 30-day comment period is provided for interested persons to submit comments on the proposed revised Grade Standards. Copies of the proposed revised standards are at
The USGSA requires that changes to the grain standards may not be made effective within one calendar year of their promulgation “unless in the judgment of the Secretary, the public health, interest, or safety require that they become effective sooner” (7 U.S.C. 76(b)(1)). This provision was put into place to allow industry participants adequate time to make adjustments and transition to new standards. However, in this case, the soybeans that are more likely to exhibit discolored seedcoats and trigger higher determinations of SBOC in soybean samples are already present in the supply chain. Additionally, based on AMS research showing that the color variation does not materially affect the end use of the soybeans, AMS does not foresee any deleterious effects to farmers or merchandisers by making the rule effective sooner. AMS believes that implementing this proposed rule effective September 1, 2023, would be in service of public interest. AMS invites all interested parties to comment on whether this change is necessary to implement effective September 1, 2023.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
As stated earlier in this proposed rule, modern breeding technologies have produced varieties that have a higher tendency to demonstrate variations in seed coat color. Official inspection data shows a sharp rise in the presence of soybeans that demonstrate these color variations, as well as impacts to the grade of U.S. soybeans. For instance, soybean discoloration can cause soybeans to be downgraded, which can potentially reduce the price of soybeans to producers, or even cause the soybeans to be rejected by some purchasers.
It is estimated that these modern soybean varieties are being adopted rapidly and could have market share as
The proposed rule has been initiated at the request of industry, which recognizes the costs associated with lower grades and discounting. Reduced discounting due to the removal of the color requirement represents a benefit to producers. Costs of the rule primarily accrue to the government and would mainly involve the cost to the federal government for changing the standards electronically and in printed material.
The 2017 Agricultural Census (Census) reports soybean production, and classifies producers by income class, acreage, and other factors. The Small Business Administration (SBA) determines the cutoff level between large and small firms. The most recent SBA guidance has a size cutoff of $2.25 million for soybean producers. This classification is not specified in the Census, however, using current production and market data in combination with Census data, we can approximate the proportion of producers affected.
The Economic Research Service (ERS) reports that in 2021 soybean prices were $13.25 per bushel, and the per acre production was 51.4 bushels per acre. Therefore, the per acre revenue is $681. To be considered a large soybean producer, it would take $2,250,000/$681 or 3,304 acres. According to the Census, there were a total of 303,191 soybean producers, 1,624 of which were farms exceeding 3,000 acres. Thus, 0.5 percent of all soybean farms could be considered large.
However, to determine the impact of the rule on small farms, we must look at production of producers with less than 3,000 acres. Again from the Census, a total of 4.356 billion bushels were produced, with 0.332 billion bushels produced on farms of 3,000 or more acres, or 7.6 percent of production. Therefore, 92.4 percent of total production in 2017 came from small farms, according to the SBA definition.
The ERS reports that in 2021, 4.435 billion bushels of soybeans were produced in the U.S., with a carryover inventory of 0.257 billion bushels, for a total of 4.692 billion bushels available. Assuming the same production proportions between small and large farms as in the 2017 Census would yield a total of 4.334 billion bushels produced by farms of less than 3,000 acres.
AMS has data on the share of soybeans that are graded based on color for each of the four grade categories. Table 1 shows the distribution for an average over the 2010-2020 period. Individual years' data varies little from the overall average. However, data from 2022 shows a sharp decline in the share of soybeans with the highest grade, and an increase in the lower grade levels. The last line in the table shows the difference between the two, indicating a significant change in grading based on color since the introduction of the new seeds.
The price impact on graded soybeans is less significant than Table 1 might suggest, as there is typically little price difference between grades #1 and #2. However, grades #3 and #4 are discounted by 1.5 cents and 3.5 cents, respectively. The total impact on small farm revenues is shown in Table 2.
Using the difference in grading shares between the 2010-2020 average, and applying the share to production by small farms, shows that a total of nearly 230 million bushels of soybeans we discounted in 2022, and the total discount was $3.8 million. While we do not know the exact market share of the genetically modified soybeans in 2022, if we assume it was 30 percent, then an increase in market share of each additional 10 percent would be approximately $1,272,000.
The total value of discounts due to color represents a benefit to small producers from removing the color standard. Given that the majority of producers are considered small entities and the majority of production comes from small farms, AMS believes the impacts of the proposed changes to the standards would not be disproportionate or unduly burdensome to small producers.
To reflect the removal of SBOC as an official factor, AMS proposes to revise the tables pertaining to soybean grade limits in section 800.86 of the regulations. Shiplots and unit trains are inspected in accordance with a statistically based inspection plan (55 FR 24030; June 13, 1990). Inspection
AMS proposes to revise 7 CFR 810, Subpart J, United States Standards for Soybeans. It is proposed that SBOC be eliminated as a grading factor but be retained in the standards as part of the definition of the class Yellow soybeans. AMS also proposes to revise 7 CFR 800.86, Inspection of shiplot, unit train, and lash barge grain in single lots, paragraph (c)(2) by removing SBOC from table 17.
Administrative practice and procedure, Conflict of interests, Exports, Freedom of information, Grains, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
Exports, Grain.
For reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR parts 800 and 810 as follows:
7 U.S.C. 71-87k.
(c) * * *
(2) * * *
7 U.S.C. 71-87k.
(a) * * *
(1)
Each determination of class, heat-damaged kernels, damaged kernels, and splits is made on the basis of the grain when free from foreign material. Other determinations not specifically provided for under the general provisions are made on the basis of the grain as a whole.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the El Dorado County Air Quality Management District (EDCAQMD) portion of the California State Implementation Plan (SIP). In this action, we are proposing to approve a rule submitted by the EDCAQMD governing the issuance of permits for stationary sources, focusing on the preconstruction review and permitting of major sources and major modifications under part D of title I of the Clean Air Act (CAA or “the Act”). We are taking comments on this proposal and plan to follow with a final action.
Comments must be received on or before May 1, 2023.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2022-0910 at
Camille Cassar, EPA Region IX, 75 Hawthorne St., San Francisco, CA 94105; by phone: (415)-947-4164; or by email to
Throughout this document, “we,” “us,” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal, including the date on which it was adopted by the District and the date on which it was submitted to the EPA by the California Air Resources Board (CARB or “the State”).
For areas designated nonattainment for one or more National Ambient Air Quality Standards (NAAQS), the applicable SIP must include preconstruction review and permitting requirements for new or modified major stationary sources of such nonattainment pollutant(s) under part D of title I of the Act, commonly referred to as Nonattainment New Source Review (NNSR). The rule listed in Table 1 contains the District's NNSR permit program applicable to new and modified major sources located in areas designated nonattainment for the ozone and/or PM
On September 9, 2022, the submittal for Rule 523-1 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
There is no previous version of Rule 523-1 in the California SIP. There are other New Source Review (NSR) rules in the California SIP that apply to the sources to which Rule 523-1 also applies, including Rule 523, “New Source Review,” which was adopted by the District on April 26, 1994. Rule 523-1 is intended to satisfy current federal NNSR requirements applicable to ozone and PM
Rule 523-1 is intended to address the CAA's statutory and regulatory requirements for NNSR permit programs for major sources emitting nonattainment air pollutants and their precursors located in the areas within the District that are designated nonattainment for one or more National Ambient Air Quality Standards (NAAQS).
Because parts of El Dorado County are designated as federal ozone and PM
The District's NNSR program must address NNSR requirements for the 1979, 1997, 2008, and the 2015 ozone NAAQS, as well as the 2006 PM
The District's NNSR program must meet the NNSR requirements for areas classified as Severe nonattainment. The ozone nonattainment area within the District is currently classified as Severe nonattainment for the 2008 ozone NAAQS and as Serious nonattainment for the 2015 ozone NAAQS. In addition, although the EPA revoked the 1979 ozone NAAQS in El Dorado County effective June 15, 2005,
We note that, in 2000, the EPA issued a limited approval and limited disapproval of District Rule 523, adopted on April 26, 1994, which was intended to address the then-applicable NNSR program requirements, and which incorporated Rule 523 into the California SIP.
In addition, to implement CAA section 169A, 40 CFR 51.307(b) requires that NNSR programs provide for review of any major stationary source or major modification that may have an impact on visibility in any mandatory Class I Federal area.
The EPA reviewed Rule 523-1 for compliance with CAA requirements for: (1) stationary source preconstruction permitting programs as set forth in CAA part D, including CAA sections 172(c)(5), 173, 182, and 189; (2) the review and modification of major sources in accordance with 40 CFR 51.160-51.165 as applicable in Severe ozone nonattainment areas as well as Moderate PM
With respect to procedural requirements, CAA sections 110(a)(2) and 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. Based on our review of the public process documentation included in the March 9, 2022 submittal of Rule 523-1, we find that the District has provided sufficient evidence of public notice, opportunity for comment and a public hearing prior to adoption and submittal of this rule to the EPA.
With respect to the substantive requirements found in CAA sections 110(a)(2)(C), 172(c)(5), 173, 182, 189, and 40 CFR 51.160-51.165, we have evaluated Rule 523-1 in accordance with the applicable CAA and regulatory requirements that apply to NNSR permit programs under part D of title I of the Act for all relevant ozone NAAQS as well as the 2006 PM
We have also determined that this rule satisfies the related visibility requirements in 40 CFR 51.307. In addition, we have determined that Rule 523-1 satisfies the requirement in CAA section 110(a)(2)(A) that regulations submitted to the EPA for SIP approval be clear and legally enforceable and have determined that the submittals demonstrate in accordance with CAA section 110(a)(2)(E)(i) that the District has adequate personnel, funding, and authority under state law to carry out this proposed SIP revision.
Regarding the additional substantive requirements of CAA sections 110(l) and 193, our action will result in a more stringent SIP, while not relaxing any existing provision contained in the SIP. We have concluded that our action would comply with section 110(l) because our approval of Rule 523-1 will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other CAA applicable requirement. In addition, our approval of Rule 523-1 will not relax any pre-November 15, 1990 requirement in the SIP, and therefore changes to the SIP resulting from this action ensure greater or equivalent emission reductions of the nonattainment pollutants and their precursors in the District; accordingly, we have concluded that our action is consistent with the requirements of CAA section 193.
Our TSD contains a more detailed discussion of our analysis of Rule523-1.
As authorized in section 110(k)(3) of the Act, the EPA is proposing to approve the submitted rule because it fulfills all relevant CAA requirements, and resolves all deficiencies with the District's NNSR program that the EPA identified in our limited disapproval action in 2000. We have concluded that our approval of the submitted rule would comply with the relevant provisions of CAA sections 110(a)(2), 110(l), 172(c)(5), 173, 182, 189 and 193, and 40 CFR 51.160-51.165 and 40 CFR 51.307. If we finalize this action as proposed, our action will be codified through revisions to 40 CFR 52.220a (Identification of plan-in part).
In conjunction with the EPA's SIP approval of the District's visibility provisions for sources subject to the NNSR program as meeting the relevant requirements of 40 CFR 51.307, this action would also revise the regulatory provision at 40 CFR 52.281(d) concerning the applicability of the visibility Federal Implementation Plan (FIP) at 40 CFR 52.28 as it pertains to California, to provide that this FIP does not apply to sources subject to review under the District's SIP-approved NNSR program.
We will accept comments from the public on this proposal until May 1, 2023.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the rule listed in Table 1 of this preamble. The rule governs the issuance of permits for stationary sources, focusing on the preconstruction review and permitting of major sources and major modifications under part D of title I of the CAA. The EPA has made, and will continue to make, this document available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) (E.O. 12898) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The District did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments; extension of the comment period.
The National Marine Fisheries Service (NMFS) is announcing an extension to the comment period for the proposed rule on the Seafood Import Monitoring Program (SIMP) published in the
The comment period for the proposed rule published December 28, 2022 (87 FR 79836), is extended. Written comments must be received on or before April 27, 2023.
You may submit comments on this document, identified by NOAA-NMFS-2022-0119, by any of the following methods:
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Rachael Confair, Office of International Affairs, Trade, and Commerce, National Marine Fisheries Service (phone: 301-427-8361; or email:
The proposed rule would add species or groups of species to the Seafood Import Monitoring Program established pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). In addition, the proposed rule would amend SIMP regulations to clarify the responsibilities of the importer of record; amend the definition of importer of record to more closely align with the U.S. Customs and Border Protection (CBP) definition; amend the language requiring chain of custody records to be made available for audit or inspection to add a requirement that such records be made available through digital means if requested by NMFS; clarify the Aggregated Harvest Report criteria; and clarify the application of SIMP requirements to imports into the Pacific Insular Areas.
This document extends the public comment period established in the
Agricultural Marketing Service, USDA.
Notice; intent to reestablish committee and request for nominations.
The U.S. Department of Agriculture (USDA) intends to reestablish the Advisory Committee on Universal Cotton Standards (Committee). The Committee is necessary and in the public interest. The Committee reviews official Universal Standards for American Upland cotton prepared by USDA and would make recommendations to the Secretary of Agriculture regarding the establishment or revision of standards. USDA also seeks nominations of individuals to be considered for appointment by the Secretary as Committee members.
Written nominations must be received on or before May 1, 2023.
Nominations and applications materials should be sent to Gretchen Deatherage, Designated Federal Official, Cotton & Tobacco Program, AMS, USDA, 3275 Appling Road, Room 5, Memphis, TN 38133 or by email to
Gretchen Deatherage, Designated Federal Official; Phone: (901) 384-3030; Email:
Pursuant to the Federal Advisory Committee Act (5 U.S.C. 10), notice is hereby given that the Secretary of Agriculture intends to reestablish the Committee for two years and the Committee would be composed of foreign and domestic representatives of the cotton industry. The purpose of the Committee would be to review official Universal Standards for U.S. Upland cotton prepared by USDA and make recommendations to the Secretary of Agriculture regarding establishment or revision of the standards established under the United States Cotton Standards Act (7 U.S.C. 51
Industry members will be appointed by the Secretary of Agriculture and serve two (2) year terms. Membership will consist of representatives from the cotton industry. The U.S. cotton industry's membership would comprise twelve (12) producers and ginners, six (6) representatives of merchandising firms, and six (6) representatives of textile manufacturers. These representatives would be appointed by the Secretary of Agriculture. Each member would have one vote. Accordingly, voting privileges will be divided as follows: U.S. cotton producers and ginners—twelve (12) votes; U.S. merchandising firms—six (6) votes; U.S. textile manufacturers—six (6) votes. There would be two committee members designated from each of the foreign signatory associations. These committee members would be designated by the respective associations. Voting privileges would be divided as follows: foreign signatory merchant associations—six (6) votes; foreign signatory spinner associations—six (6) votes. The members of the re-established Committee will elect a Chairperson of the Committee.
The Secretary of Agriculture invites those individuals, organizations, and groups affiliated with the categories listed above to nominate individuals for membership on the re-established Committee. Nominations should describe and document the proposed member's qualifications for membership to the Committee and list their name, title, address, telephone, and fax number. The Secretary of Agriculture seeks a diverse group of members that represent a broad spectrum of persons interested in providing suggestions and ideas on how USDA can tailor its programs to meet the needs of the cotton industry.
All individuals must submit the following to nominate yourself or someone else to the Advisory Committee on Universal Cotton Standards: a resume or curriculum vitae (required), a USDA Advisory Committee Membership Background Information Form AD-755—available online at
More information on USDA Advisory Committees may be found at
Equal opportunity practices in accordance with USDA policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken into account the needs of the diverse groups served by USDA, membership will include, to the extent possible, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the regulations governing importation of cattle and bison, specifically with regard
We will consider all comments that we receive on or before May 30, 2023.
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 on the regulations for bovine tuberculosis and brucellosis regionalization and associated importation of cattle and bison, contact Dr. Kari Coulson, Import Risk Analyst, Regionalization Evaluation Services, VS, APHIS, 920 Main Campus Drive, Raleigh, NC 27606; (919) 480-9876; email:
The regulations in 9 CFR part 93 contain, among other things, provisions that address the risk that imported bovines (cattle or bison) may introduce or disseminate brucellosis or bovine tuberculosis (TB) within the United States. On September 17, 2020, APHIS published in the
TB is a contagious disease of both animals and humans. Bovine TB, caused by
The activities associated with the regulations include the request for regional classification and additional information about a region, an application for recognition of regional classification (TB and brucellosis), maintaining classification and reclassification, and the official identification and certification.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) 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;
(2) Evaluate the accuracy of our estimate of the burden of the 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; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Rural Business-Cooperative Service, USDA.
Notice.
The Rural Business-Cooperative Service (the Agency) is issuing a second Notice of Solicitation of Applications (Notice) under the Rural Energy for America Program (REAP) as referenced in the notice that was published in the
As provided for in 7 CFR 4280.122, the Agency, by this Notice, is increasing the number of competitions for Renewable Energy Systems and Energy Efficiency Improvements (RES/EEI) grant applications. The application deadline date and time as outlined in 7 CFR 4280.156(a) remains unchanged. RES/EEI and Energy Efficient Equipment and Systems (EEE) guaranteed loan applications are competed on an ongoing basis in accordance with 7 CFR 5001.315. See Section D.4. of this Notice for details on REAP competitions.
You are encouraged to contact your United States Department of Agriculture (USDA) Rural Development (RD) State Energy Coordinator well in advance of the application deadline to discuss your project and ask any questions about the application process. Contact information for State Office Energy Coordinators can be found at
Program guidance and application forms may be obtained at
Jonathan Burns, Program Management Division, Rural Business-Cooperative Service, United States Department of Agriculture, 774-678-7238 or email
• Assisting rural communities recover economically through more and better market opportunities and through improved infrastructure;
• Ensuring all rural residents have equitable access to RD programs and benefits from RD funded projects; and
• Reducing climate pollution and increasing resilience to the impacts of climate change through economic support to rural communities.
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For the purpose of this Notice only, underutilized renewable energy technologies (underutilized technologies) are defined as those technologies which do not produce greenhouse gases at the project level, and which make up less than 20 percent of the total grant dollars obligated at the end of the fiscal year, two (2) years previous to the current year. For example, FY 2021 award data will be utilized to determine which technologies are underutilized technologies for the FY 2023 competition.
For awareness, the number of employees calculation used to determine the size of a business concern in the definition of Small Business is being updated to 24 months versus 12 months, to align with recent changes made by the Small Business Administration.
The Agency may, at its discretion, increase the total level of funding available in this funding round (or in any category in this funding round) from any available source provided the awards meet the requirements of the statute which made the funding available to the Agency.
Available Funds Information:
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(i) To ensure that small projects have a fair opportunity to compete for the funding and to be consistent with the requirements set forth in the 7 U.S.C. 8107(e)(1), the Agency will set aside not less than 20 percent of the Farm Bill and IRA funds until June 30 of each year to fund grant requests of $20,000 or less, including the grant portion of a combined grant and guaranteed loan request. Each RD State Office will receive a set-aside allocation of IRA funds for grant requests of $20,000 or less, which includes combination grant and guaranteed loan requests where the grant amount requested is $20,000 or less. States may request Farm Bill set-aside funds from their allocation held at the National Office. Complete grant applications requesting $20,000 or less must be submitted by March 31 to compete for set-aside funding. Any unobligated balance of funds remaining in state set-aside accounts on June 1 will be pooled by the National Office for national set-aside competitions. Obligation of set-aside grant funds will take place through June 30 of each year.
(ii) Each RD State Office will also receive allocations of unrestricted Farm Bill funds, if any, and IRA grant funds that can be used to fund any RES/EEI grant application regardless of the amount of grant requested, including the grant portion of a combination grant and guaranteed loan request. Complete applications must be received by June 30th to compete for FY funding. Any unobligated balance of funds remaining in state unrestricted accounts on August 1 will be pooled to the National Office for a national competition of funds. The pooling will first consider funding underutilized technology with the funding set-aside. Obligation of unrestricted grant funds will take place through September 30th of each year.
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In determining eligibility for the applicant, project or use of funds, any project applying for funding under the REAP program and proposing to produce, procure, supply or market any component of the hemp plant or hemp related by-products, or provide technical assistance related to such products, must have a valid license from an approved state, Tribal or Federal plan pursuant to Section 10113 of the 2018 Farm Bill, to be in compliance with regulations published by the Agricultural Marketing Service at 7 CFR part 990, and meet any applicable U.S. Food and Drug Administration and U.S. Drug Enforcement Administration regulatory requirements. Verification of valid hemp licenses will occur prior to award. In addition, all projects proposing to use biomass feedstock from any part of the hemp plant must demonstrate assurance of an adequate supply of the feedstock.
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When an application window closes, the next application window opens on the following day. An application received after the window closing date will be considered with other complete applications received in the next application window.
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The following funding limitations apply to applications submitted under this Notice.
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i. Modification is being made via this Notice to increase the maximum grant assistance noted in 7 CFR 4280.115(a)(3). Applicants can compete and be awarded only one RES grant and one EEI grant in a FY, which includes the grant portion of a combined funding request. If it is determined that an applicant is affiliated with another entity that has also applied, then the maximum grant award applies to all affiliated entities as if they applied as one applicant. An affiliate is an entity controlling or having the power to control another entity, or a third party or parties that control or have the power to control both entities. The maximum amount of grant assistance to an entity will not exceed $1,500,000 in a FY.
ii. Modification is being made via this Notice to the Federal grant portion noted in 7 CFR 4280.115(a). Pursuant to Section 22002 of the IRA, the Federal grant portion of a project utilizing IRA funds cannot exceed 50 percent of total eligible project costs. Applications submitted on or after April 1, 2022, through March 31, 2023, are eligible for up to 40 percent Federal grant share from IRA funds as outlined in the December 16, 2022, notice. Applications submitted on or after April 1, 2023, are eligible for up to 50 percent Federal grant share from IRA funds if the project meets one of the following criteria:
(a) Is a renewable energy system or retrofit of a renewable energy system that produces zero greenhouse gas emissions (carbon dioxide (CO
(b) Is located in an Energy Community as defined in 26 U.S.C. 45(b)(11)(B), and as determined by the Department of Energy;
(c) Is an energy efficiency improvement project; or
(d) Is a project proposed from an eligible Tribal corporation or other Tribal Business entities (including Tribal agriculture operations) as described in 7 CFR part 4280.
All other applications, such as biomass and biogas projects, are eligible for up to 25 percent Federal grant share from IRA funds. The Federal grant portion of a project utilizing Farm Bill funds or FYs 2023 or 2024 appropriated funds, if any, cannot exceed 25 percent of total eligible project costs. Sources of REAP grant funds cannot be combined to fund a project. Loan and grant combination applications may use IRA grant funds and mandatory Farm Bill loan funds to fund a project.
iii. For RES grants, the minimum request is a total project cost threshold of $10,000, therefore at 25 percent funding the minimum grant request is $2,500 and at 50 percent funding the minimum grant request is $5,000. The maximum grant request is $1,000,000. For EEI grants, the minimum request is a total project cost threshold of $6,000, therefore at 25 percent funding the minimum grant request is $1,500 and at 50 percent funding the minimum grant request is $3,000. The maximum grant request is $500,000. These minimum and maximum limits also apply to the grant portion of a combined funding request.
iv. For RES/EEI/EEE loan guarantees or the loan guaranteed portion of a combined funding request, the minimum REAP guaranteed loan amount is $5,000 and the maximum amount of a guaranteed loan to be provided to a borrower is $25 million. REAP guaranteed loan requests and combined grant and guaranteed loan requests will not exceed 75 percent of total eligible project costs, with the portion of any grant requests under this Notice not exceeding 25, or 50 percent of total eligible project costs, as applicable to the source of grant funds and grant funding provisions as outlined in this Notice.
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i. Applicants may submit only one EA grant application and one REDA grant application in a FY. Separate applications must be submitted for EA funding and REDA funding. If an application is submitted for both EA and REDA funding or if an application's scope of work includes both EA and REDA activities, it will be determined ineligible for competition. The maximum aggregate amount of EA and REDA grant awards to any one recipient cannot exceed $100,000 in a FY.
ii. Applicants that have received one or more grants under this program must have made satisfactory progress per 7 CFR 4280.110(a) before being considered for funding.
iii. The 2018 Farm Bill mandates that the recipient of an EA grant must require the agricultural producer or rural small business receiving the energy audit to pay at least 25 percent of the cost of the energy audit, which shall be retained by the grantee for the cost of the audit.
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i. RES/EEI grant applications and RES/EEI combined grant and loan guarantee requests received between April 1, 2022, through March 31, 2023, will be scored according to the Notice published in the
ii. RES/EEI grants and RES/EEI combined grant and loan guarantee requests submitted on or after April 1, 2023, will be scored based on 7 CFR 4280.121 and criteria identified in F.1.v. below. The following modifications to the scoring criteria outlined in 7 CFR 4280.121 will be applied for this section:
(a) Existing business and size of request, 7 CFR 4280.121(e) and (g) will be removed from the scoring criteria.
(b) Project is located in a Disadvantaged Community or a Distressed Community (15 points will be added). A Disadvantaged Community will be determined by the Agency by using the Council on Environmental Quality's Climate and Economic Justice Screening Tool (which is incorporated into the USDA look-up map) which identifies communities burdened by climate change and environmental injustice. Additionally, all communities within the boundaries of Federally Recognized Tribes and Alaska Native Villages will also be determined to be Disadvantaged Communities by the Agency. Distressed Community will be determined by the Agency by using the Economic Innovation Group's Distressed Communities Index (which is incorporated into the USDA look-up map), which uses several socio-
(c) Environmental benefits, 7 CFR 4280.121(a) is being increased to a maximum of 10 points and points will be awarded as follows. All projects which do not produce greenhouse gases at the project level will be awarded five points and may be considered for up to a maximum of 10 points. Applicants must provide a detailed narrative or analysis to support additional environmental benefits. One point will be awarded for each documented environmental benefit supported by the project; does not convert farmland; does not contribute to deforestation or addresses fire hazards on forest lands; documented water conservation; complies with EPA's renewable fuel standards; and at least 25% of project components are biobased.
(d) Commitment of funds, 7 CFR 4280.121(c) is being decreased to a maximum of 10 points.
(e) State Director and Administrator priority points, 7 CFR 4280.121(h) have been modified as shown in item F.1.v. below.
(f) The remaining scoring criteria, energy generated, replaced or saved; previous grantees and borrowers; and simple payback, 7 CFR 4280.121 (b), (d), and (f), respectively, remain as stated in the regulation.
iii. EA/REDA grants will be scored based on 7 CFR 4280.155.
iv. RES/EEI/EEE guaranteed loans will be scored based on 7 CFR 5001.319 and item F.1.v. below.
v. State Director or Administrator priority points are found in 7 CFR 4280.121(h), 4280.137(h), and 5001.319(g). For the purposes of this notice, the State Director or Administrator at their discretion may award up to 10 priority points maximum for projects which meet any of the following criteria: (i) Selecting the application helps achieve geographic diversity, which may include points based upon the size of the funding request; (ii) The applicant is a member of an unserved or underserved population described as follows: (1) Owned by a veteran, including but not limited to individuals as sole proprietors, members, partners, stockholders, etc., of not less than 20 percent. In order to receive points, applicants must provide a statement in their application to indicate that owners of the project have veteran status; or (2) Owned by a member of a socially disadvantaged group, which are groups whose members have been subjected to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities. In order to receive points, the application must include a statement to indicate that the owners of the project are members of a socially disadvantaged group; (iii) The proposed project is in a Federally declared major disaster area. Declarations must be within the last 2 calendar years; or (iv) the proposed project is located in (1) an area where 20 percent or more of its population is living in poverty over the last 30 years, as defined by the United States Census Bureau, or (2) an area that has experienced long-term population decline, or loss of employment. Except for veteran and socially disadvantaged group status, all other priority points are based upon project location specific criteria which will be documented automatically by the Agency. State Director or Administrator priority points for a REAP application cannot exceed 10 points total.
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There are multiple sources and reserves of funding and the application will compete accordingly based upon on the dollar amount of grant request (set-aside or unrestricted), the percent of Federal grant share to total project cost (IRA or Farm Bill), or if the definition
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Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027, USDA Program Discrimination Complaint Form, which can be obtained online at
The completed AD-3027 form or letter must be submitted to USDA by:
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USDA is an equal opportunity provider, employer, and lender.
Census Bureau, Commerce.
General notice announcing population estimates.
This notice announces the voting age population estimates as of July 1, 2022 for each state and the District of Columbia. We are providing this notice in accordance with the 1976 amendment to the Federal Election Campaign Act.
Karen Battle, Chief, Population Division, U.S. Census Bureau, 4600 Silver Hill Road, Washington, DC 20233. Phone: 301-763-2071. Email:
Under the requirements of the 1976 amendment to the Federal Election Campaign Act, Title 52, United States Code, Section 30116(e), I hereby give notice that the estimates of the voting age population for July 1, 2022 for each state and the District of Columbia are as shown in the following table.
Gina Raimondo, Secretary, Department of Commerce, certified these estimates for the Federal Election Commission.
Robert L. Santos, Director, Census Bureau, approved the publication of this Notice in the
Pursuant to its authority under the Foreign-Trade Zones Act of June 18, 1934, as amended (19 U.S.C. 81a-81u), the Foreign-Trade Zones Board (the Board) adopts the following Order:
The application to reorganize and expand FTZ 39 under the ASF is approved, subject to the FTZ Act and the Board's regulations, including Section 400.13, to the Board's standard 2,000-acre activation limit for the zone, and to an ASF sunset provision for usage-driven sites that would terminate authority for Site 34 if no foreign-status merchandise is admitted for a
The Department of Commerce will submit the following information
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
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
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National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for
NMFS has received a request from Chevron Products Company for authorization to take marine mammals incidental to the Long Wharf Maintenance and Efficiency Program (LWMEP) in San Francisco Bay, California. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible one-time, one-year renewal that could be issued under certain circumstances and if all requirements are met, as described in Request for Public Comments at the end of this notice. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorization and agency responses will be summarized in the final notice of our decision.
Comments and information must be received no later than May 1, 2023.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service and should be submitted via email to
Jessica Taylor, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
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.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (IHAs with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On December 16, 2022, NMFS received a request from Chevron Products Company (Chevron) for an IHA to take marine mammals incidental to pile driving activities associated with the LWMEP in San Francisco Bay (the Bay), California. Following NMFS' review of the application, Chevron submitted a final revised version on February 27, 2023. The application was deemed adequate and complete on March 20, 2023. Chevron's request is for take of 7 species of marine mammals by Level B harassment only. Neither Chevron nor NMFS expect serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
NMFS previously issued IHAs to Chevron for similar work (83 FR 27548, June 13, 2018; 84 FR 28474, June 19, 2019; 85 FR 37064, June 19, 2020; 86 FR 28578, May 27, 2021; 87 FR 35180, June 9, 2022). Chevron complied with all the requirements (
This proposed IHA would cover 1 year of a larger project for which Chevron obtained prior IHAs and intends to request take authorization for subsequent facets of the project. The larger 5-year project involves upgrading Long Wharf to satisfy current Marine Oil Terminal Engineering and Maintenance Standards.
Chevron plans to upgrade Berth 1 of the Refinery Long Wharf in the Bay, California in order to meet current safety and efficiency standards. As part of the proposed project, Chevron is proposing to use vibratory extraction to remove concrete piles associated with the existing gangway and catwalk. Impact hammers would be used to install concrete piles to construct a mooring dolphin and hook, breasting dolphin and breasting points with standoff fenders, and to replace the catwalk in a different location. A temporary construction template composed of steel piles would be installed through the use of a vibratory hammer and removed by vibratory extraction when in-water construction activities are complete. The Long Wharf
Chevron's proposed activity includes impact and vibratory pile driving and vibratory pile removal, which may result in the incidental take of marine mammals, by harassment only. Due to mitigation measures, no Level A harassment is anticipated to occur, and none is proposed for authorization.
In-water construction activities would occur over the course of 30 days from June 1, 2023 through November 30, 2023. Chevron states that it would conduct work only in daylight hours. The proposed in-water work schedule is shown in table 1. In-water work would begin with of 1 day of vibratory pile extraction, then 21 days of impact pile installation. The temporary construction trestle would require 4 days of vibratory pile installation and 4 days of vibratory pile removal. Pile installation and removal would occur at a rate 2-3 piles per day, depending upon pile size and type. Only one pile would be driven or extracted at a time. Although the IHA would be active for a period of 1 year, in-water pile installation and removal activities are planned from June through November to protect sensitive life stages of listed fish species in the area.
The Long Wharf is located in northern region of the central Bay, south of the eastern terminus of the Richmond-San Rafael Bridge (RSRB) (Figure 1). Water depth in the project area ranges from approximately 6 to 15 meters (m), mean lower low water (MLLW). The substrate is primarily Bay mud, however, sand or gravel may exist deeper into the substrate. The project area around Berth 1 is approximately 470 square kilometers (km
The LWMEP upgrades began in 2018 and were planned to be completed within 2-3 years, however, the project experienced several delays. The proposed IHA would cover activities that were not completed under the 2021 IHA (86 FR 28578, May 27, 2021).
Chevron plans to complete modifications to Berth 1 at the Long Wharf by updating the fender system to better accommodate barges and enable balanced utilization across berths. Specifically, these modifications include replacing the gangway, construction of a new mooring dolphin and hook and breasting dolphin with breasting point, removing a catwalk and concrete piles, and installing a temporary construction template. Unless otherwise specified, the term “pile driving” in this section, and all following sections, may refer to either pile installation or removal.
In addition to the planned modifications, Chevron would construct a temporary template using 12 36-inch steel piles. These piles would be installed using vibratory installation and removed using vibratory extraction after in-water construction activities are complete.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
Sections 3 and 4 of the 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 we refer the reader to these descriptions, incorporated here by reference, instead of reprinting the information. 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 expected and proposed to be authorized for this activity, 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. 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 serious injury or mortality is anticipated or proposed to be authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks 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. Pacific SARs. All values presented in table 2 are the most recent available at the time of publication (including from the draft 2022 SARs) and are available online at:
As indicated above, all 7 species (with 7 number managed stocks) in table 2 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur. All species that could potentially occur in the proposed survey areas are included in table 4-1 of the IHA application. While humpback whales have been sighted in the coastal waters outside of the Bay, the spatial occurrence of this species is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. Although there are no published studies available regarding the distribution of humpback whales in the Bay, sightings from whale watching vessels and other mariners report that when humpback whales enter the Bay, they rarely move east into the Bay towards the vicinity of the project area and are unlikely to occur during the proposed activities.
Pacific harbor seals are distributed from Baja California north to the Aleutian Islands of Alaska. Harbor seals do not make extensive pelagic migrations, but may travel hundreds of kilometers to find food or suitable breeding areas (Herder, 1986; Harvey and Goley, 2011; Carretta
The California Department of Transportation (Caltrans) conducted extensive marine mammal surveys in Bay before and during seismic retrofit on the RSRB from 1998-2002 and determined that a minimum of 500 harbor seals occur within the Bay (Green
The number of harbor seals in the Bay increases during the winter foraging period as compared to the spring breeding season. In the Bay, harbor seals are known to forage on a variety of fish, crustaceans, and cephalopods found in shallow intertidal waters.
Seals primarily haul out on remote mainland and island beaches, reefs, and estuary areas. At haul-outs, they congregate to rest, socialize, breed, and molt. Haul out sites are consistent for harbor seals across years (Kopec and Harvey, 1995), and females may return to their natal sites for breeding (Green
California sea lions are mainly seen swimming off the San Francisco and Marin shorelines within the Bay, but may occasionally enter the project area to forage. They feed seasonally on schooling fish and cephalopods, including salmon, herring, sardines, anchovy, mackerel, whiting, rockfish, and squid (Lowry
Although California sea lions forage and conduct many activities within the water, they also use haul outs on land. In the Bay, sea lions haul out primarily on floating docks at Pier 39 at the Fisherman's Wharf area of the San Francisco Marina, approximately 12.5 kilometers (7.8 miles) southwest of the project area. Haul out numbers at Pier 39 vary seasonally. In addition to the Pier 39 haul out, California sea lions haul out on buoys, wharfs, and similar structures throughout the Bay.
Occurrence of sea lions in the Bay is typically lowest in June during the breeding season and higher during El Niño seasons. In the Bay, California sea lions have been observed foraging near Pier 39, in the shipping channel south of Yerba Buena Island, and along the west and north sides of the Long Wharf (AECOM, 2019). The relatively deep shipping channel west and north of the Point Orient Wharf also provides foraging area for sea lions. PSOs observed up to 13 sea lions within a construction season during prior monitoring efforts for the LWMEP (AECOM, 2021). As sea lions may forage widely throughout the Bay, this species may enter the project area during construction activities.
Harbor porpoises typically occur in cool temperate to sub-polar waters less than 62.6 degrees Fahrenheit (17 degrees Celsius) (Read 1999) where prey aggregations are concentrated (Watts and Gaskin, 1985). In the eastern Pacific, harbor porpoises occur in coastal and inland waters from Point Conception, California to Alaska (Gaskin 1984). The non-migratory San Francisco-Russian River stock ranges from Pescadero to Point Arena, California, utilizes relatively shallow nearshore waters (<100 meters), and feeds on small schooling fishes such as northern anchovy and Pacific herring which enter the Bay (Caretta
Before 2008, harbor porpoises occurred primarily outside of the Bay although the Bay has historically been considered habitat for harbor porpoises (Broughton, 1999). Recently, observations of harbor porpoises within the Bay have become more common (Duffy 2015; Stern
The common bottlenose dolphin is found in all oceans across the globe, and is one of the most commonly observed marine mammal species in coastal waters and estuaries. Two genetically distinct stocks occur off the coast of California, the California coastal stock and the California/Oregon/Washington offshore stock. The range of the California coastal stock has been expanding north since an El Niño event in 1982-1983 (Hansen and Defran, 1990; Wells
Gray whales are one of the most common whales along the California coast. A small number of whales, known as the Pacific Coast Feeding Group (PCFG), are known to feed along the Pacific coast between Kokiak Island, AK and northern California, as well as in nearshore waters just outside of the Bay (Carretta
Eastern North Pacific gray whales have been experiencing a UME since 2019 when large numbers of whales began stranding from Mexico to Alaska. As of March 14, 2023, approximately 307 gray whales have stranded in the U.S. and 633 total throughout the U.S., Canada, and Mexico since 2019 (NOAA, 2023). Preliminary necropsy results conducted on a subset of the whales indicated that many whales showed signs of nutritional stress, however, these findings are not consistent across all of the whales examined (NOAA, 2023). This UME is ongoing and similar to that of 1999 and 2000 when large numbers of gray whales stranded along the eastern Pacific coast (Moore
Northern elephant seals breed and give birth in California and Baja California, mainly on offshore islands during the months of December to March (Stewart and Huber, 1993; Stewart
Northern fur seals range from southern California north to the Bering Sea, and west to the Okhotsk Sea and Honshu Island, Japan in the west (Carretta
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. 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.
This section provides a discussion of the ways in which components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and whether those impacts are reasonably expected to, or reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
Acoustic effects on marine mammals during the specified activities can occur from impact pile driving and vibratory pile driving and removal. The effects of underwater noise from Chevron's proposed activities have the potential to result in Level B harassment of marine mammals in the project area.
The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far (ANSI, 1995). The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 decibels (dB) from day to day (Richardson
In-water construction activities associated with the project would include impact and vibratory pile driving and removal. The sounds produced by these activities fall into one of two general sound types: impulsive and non-impulsive. Impulsive sounds (
Two types of hammers would be used on this project, impact and vibratory. Impact hammers operate by repeatedly dropping and/or pushing a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is considered impulsive. Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce non-impulsive, continuous sounds. Vibratory hammering generally produces SPLs 10 to 20 dB lower than impact pile driving of the same-sized pile (Oestman
The likely or possible impacts of Chevron's proposed activities on marine mammals could be generated from both non-acoustic and acoustic stressors. Potential non-acoustic stressors include the physical presence of the equipment, vessels, and personnel; however, we expect that any animals that approach the project site close enough to be harassed due to the presence of equipment or personnel would be within the Level B harassment zones from pile driving and would already be subject to harassment from the in-water activities. Therefore, any impacts to marine mammals are expected to primarily be acoustic in nature.
The introduction of anthropogenic noise into the aquatic environment from pile driving equipment is the primary means by which marine mammals may be harassed from Chevron's specified activities. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall
NMFS defines a noise-induced threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS, 2018). The amount of threshold shift is customarily expressed in dB. A TS can be permanent or temporary. As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
Depending on the degree (elevation of threshold in dB), duration (
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (
The potential for TTS from impact pile driving exists. After exposure to playbacks of impact pile driving sounds (rate 2,760 strikes/hour) in captivity, mean TTS increased from 0 dB after 15 minute exposure to 5 dB after 360 minute exposure; recovery occurred within 60 minutes (Kastelein
Activities for this project include impact and vibratory pile driving, and vibratory pile removal. There would likely be pauses in activities producing the sound during each day. Given these pauses and the fact that many marine mammals are likely moving through the project areas and not remaining for extended periods of time, the potential for TS declines.
Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); or avoidance of areas where sound sources are located. Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments for both laboratory and free-ranging animals (
Airborne noise would primarily be an issue for pinnipeds that are swimming or hauled out near the project site within the range of noise levels elevated above the acoustic criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when looking with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would likely previously have been “taken” because of exposure to underwater sound above the behavioral harassment thresholds, which are generally larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.
Chevron's proposed construction activities could have localized, temporary impacts on marine mammal habitat, including prey, by increasing in-water sound pressure levels and slightly decreasing water quality. Increased noise levels may affect acoustic habitat (see masking discussion above) and adversely affect marine mammal prey in the vicinity of the project areas (see discussion below). During impact and vibratory pile driving or removal, elevated levels of underwater noise would ensonify the project area where both fishes and mammals occur, and could affect foraging success. Additionally, marine mammals may avoid the area during construction, however, displacement due to noise is expected to be temporary and is not expected to result in long-term effects to the individuals or populations. Construction activities are expected to be of short duration and would likely have temporary impacts on marine mammal habitat through increases in underwater and airborne sound.
A temporary and localized increase in turbidity near the seafloor would occur in the immediate area surrounding the area where piles are installed or removed. In general, turbidity associated with pile driving is localized to about a 25-ft (7.6-m) radius around the pile (Everitt
Avoidance by potential prey (
Fish utilize the soundscape and components of sound in their environment to perform important functions such as foraging, predator avoidance, mating, and spawning (
Fish react to sounds which are especially strong and/or intermittent low-frequency sounds, and behavioral responses such as flight or avoidance are the most likely effects. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. The reaction of fish to noise depends on the physiological state of the fish, past exposures, motivation (
SPLs of sufficient strength have been known to cause injury to fish and fish mortality. However, in most fish species, hair cells in the ear continuously regenerate and loss of auditory function likely is restored when damaged cells are replaced with new cells. Halvorsen
The most likely impact to fishes from pile driving and removal and construction activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution, and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary. Further, it is anticipated that preparation activities for pile driving or removal (
In summary, given the short daily duration of sound associated with individual pile driving events and the relatively small areas being affected, pile driving activities associated with the proposed actions are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Any behavioral avoidance by fish of the disturbed area would still leave significantly large potential areas fish and marine mammal foraging habitat in the nearby vicinity. Thus, we conclude that impacts of the specified activities are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to marine mammal habitat are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform 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 would be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to the acoustic sources. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (
As described previously, no serious injury or mortality is anticipated or proposed to be authorized for this activity. Below we describe how the proposed take numbers are estimated.
For acoustic impacts, 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) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of 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).
Chevron's proposed construction activities include the use of continuous (vibratory pile-driving) and impulsive (impact pile-driving) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re 1 μPa are applicable.
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.
Pile driving activities, using an impact hammer as well as a vibratory hammer, would generate underwater noise that could result in disturbance to marine mammals near the project area. A review of underwater sound measurements for similar projects was conducted to estimate the near-source sound levels for impact and vibratory pile driving and vibratory extraction. Source levels for proposed removal and installation activities derived from this review are shown in table 5.
The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, known as practical spreading. As is common practice in coastal waters, here we assume practical spreading (4.5 dB reduction in sound level for each doubling of distance) for vibratory extraction of concrete piles, as hydro-acoustic data for the same pile type was not available for this project site. Chevron conducted hydro-acoustic monitoring for prior projects at Long Wharf for the impact driving of 24-inch concrete piles and vibratory driving of 36-inch steel piles. Based upon hydro-acoustic monitoring conducted at Long Wharf in 2018 and 2019 (AECOM 2018, 2019), Chevron calculated a transmission loss coefficient ranging from 14 to 20 (~4.4 dB to 8 dB per doubling of distance). As this estimate represents a wide range of measured transmission loss, NMFS applied the standard value of 15 for impact driving of concrete piles. For vibratory driving of 36-inch steel piles, Chevron calculated a transmission loss coefficient of 20.8 to 25.0 (~8 dB to 9 dB per doubling of distance) from hydro-acoustic monitoring conducted at Long Wharf in 2019 (AECOM, 2019). Given that all available data suggested a higher transmission loss, NMFS found it appropriate to apply this to its analysis. NMFS applied the lower of these two values, 20.8 TL, to this analysis to be conservative. The Level B harassment zones and ensonified areas for Chevron's proposed activities are shown in table 6.
In this section we provide information about the occurrence of marine mammals, including density or other relevant information, that will inform the take calculations.
From 2018-2022, a total of 73 days of monitoring occurred across all projects during the seasonal window of June through November. During this time, 13 sea lions were sighted. Based upon sightings and monitoring days, we calculated a daily occurrence rate of 0.18 sea lions per day.
San Francisco has received a record amount of rainfall since July 1, 2022 (Bay City News, 2023), indicating that increased freshwater inflow into the Bay could be expected this year. The Bay did not experience similar freshwater inflow during the LWMEP and POWR years of 2018-2022. As the impacts of increased freshwater flow into the project area on California sea lion occurrences are unclear, and this increased freshwater input did not occur during prior monitoring years, we conservatively used a daily occurrence rate of California sea lions, 1 sea lion per day, to estimate take.
Here we describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur and proposed for authorization.
Take estimate calculations vary by species. To calculate take by Level B harassment for harbor seals, California sea lions, and harbor porpoises, NMFS multiplied the daily occurrence estimates described in the
For bottlenose dolphins, Chevron estimated, and NMFS concurs, that one group of 8 bottlenose dolphins may be taken by Level B harassment every month of the project. Therefore, Chevron requested, and NMFS proposes to authorize, 32 takes of bottlenose dolphins by Level B harassment.
Chevron based requested take by Level B harassment for gray whales upon total daily occurrence estimates during the project period. Chevron conservatively estimated, and NMFS concurs, that 2 gray whales may enter the project area per year. Therefore, Chevron requested, and NMFS proposes to authorize, 2 takes of gray whales by Level B harassment (table 8).
For northern elephant seals, Chevron conservatively estimated, and NMFS concurs, that one northern elephant seal could enter the project area once every 3 days during in-water construction activities. Therefore, Chevron requested, and NMFS proposes to authorize, 10 takes of northern elephant seals by Level B harassment (table 8).
Based upon prior occurrences in the Bay, Chevron conservatively estimated, and NMFS concurs, that a maximum of 10 northern fur seals could occur in the project area during the in-water construction activity period. Therefore, Chevron requested, and NMFS proposes to authorize 10 takes of northern fur seals by Level B harassment (table 8).
Chevron did not request, nor is NMFS proposing to authorize, take by Level A harassment. For all pile driving activities, Chevron proposed to implement shutdown zones (described further in the Proposed Mitigation section) that would be expected to effectively prevent take by Level A harassment.
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, NMFS considers 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 would 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.
Chevron must follow mitigation measures as specified below.
Chevron must ensure that construction supervisors and crews, the monitoring team, and relevant Chevron staff are trained prior to the start of all pile driving activities, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project must be trained prior to commencing work.
Chevron must establish shutdown zones for all pile driving activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones would be based upon the Level A harassment zone for each pile size/type and driving method where applicable, as shown in table 7. A minimum shutdown zone of 10 m would be required for all in-water construction activities to avoid physical interaction with marine mammals. For pile driving, the radii of the shutdown zones are rounded to the next largest 10 m interval in comparison to the Level A harassment zone for each activity type. If a marine mammal is observed entering or within a shutdown zone during pile driving activity, the activity must be stopped until there is visual confirmation that the animal has left the zone or the animal is not sighted for a period of 15 minutes. Proposed shutdown zones for each activity type are shown in table 9.
All marine mammals would be monitored in the Level B harassment zones and throughout the area as far as visual monitoring can take place. If a marine mammal enters the Level B harassment zone, in-water activities would continue and PSOs would document the animal's presence within the estimated harassment zone.
Chevron would also establish shutdown zones for all marine mammals for which take has not been authorized or for which incidental take has been authorized but the authorized number of takes has been met. These zones would be equivalent to the Level B harassment zones for each activity. If a marine mammal species for which take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met enters the shutdown zone, all in-water activities would cease until the animal leaves the zone or has not been observed for at least 1 hour, and NMFS would be notified about species and precautions taken. Pile removal would proceed if the animal is observed to leave the Level B harassment zone or if 1 hour has passed since the last observation.
If shutdown and/or clearance procedures would result in an imminent safety concern, as determined by Chevron or its designated officials, the in-water activity would be allowed to continue until the safety concern has been addressed, and the animal would be continuously monitored.
The placement of PSOs during all pile driving activities (described in the Proposed Monitoring and Reporting section) would ensure that the entire shutdown zone is visible. Should environmental conditions deteriorate such that the entire shutdown zone would not be visible (
PSOs would monitor the full shutdown zones and the Level B harassment zones to the extent practicable. Monitoring zones provide utility for observing by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring zones enable observers to be aware of and communicate the presence of marine mammals in the project areas outside the shutdown zones and thus prepare for a potential cessation of activity should the animal enter the shutdown zone.
Monitoring must take place from 30 minutes prior to initiation of pile driving activities (
Soft-start procedures provide additional protection to marine mammals by providing warning and/or giving marine mammals a chance to leave the area prior to the hammer operating at full capacity. For impact pile driving, contractors would be required to provide an initial set of three strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. Soft-start would be implemented at the start of each day's
A bubble curtain must be employed during all impact pile installation of the 24-inch square concrete piles to interrupt the acoustic pressure and reduce impact on marine mammals. The bubble curtain must distribute air bubbles around 100 percent of the piling circumference for the full depth of the water column. The lowest bubble ring must be in contact with the mudline for the full circumference of the ring. The weights attached to the bottom ring must ensure 100 percent substrate contact. No parts of the ring or other objects may prevent full substrate contact. Air flow to the bubblers must be balanced around the circumference of the pile.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on the affected 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 would 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 while conducting the activities. Effective reporting is critical both to 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.
Marine mammal monitoring must be conducted in accordance with the conditions in this section, the Monitoring Plan, and this IHA. Marine mammal monitoring during pile driving activities would be conducted by PSO's meeting NMFS' standards and in a manner consistent with the following:
• PSOs must be independent of the activity contractor (for example, employed by a subcontractor) and have no other assigned tasks during monitoring periods;
• At least one PSO would have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
• Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization;
• Where a team of three or more PSOs is required, a lead observer or monitoring coordinator must be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
• PSOs must be approved by NMFS prior to beginning any activity subject to the IHA.
PSOs should have the following additional qualifications:
• Ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
Chevron would have at least two PSOs stationed at the best possible vantage points in the project area to monitor during all pile driving activities. Monitoring would occur from elevated locations along the shoreline or on barges where the entire shutdown zones and monitoring zones are visible. PSOs would be equipped with high quality binoculars for monitoring and radios or cells phones for maintaining contact with work crews. Monitoring would be conducted 30 minutes before, during, and 30 minutes after all in water construction activities. In addition, PSOs would record all incidents of marine mammal occurrence, regardless of distance from activity, and would document any behavioral reactions in concert with distance from piles being driven or removed. Pile driving activities include the time to install or remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than 30 minutes.
In addition to monitoring on days that construction would occur, as proposed by the applicant, Chevron would conduct biological monitoring within one week ahead of the project's start date to establish baseline observation. These observation periods would encompass different tide levels at different hours of the day.
Chevron would record detailed information about implementation of shutdowns, counts and behaviors (if possible) of all marine mammal species observed, times of observations, construction activities that occurred, any acoustic and visual disturbances, and weather conditions. PSOs would
• Date and time that permitted construction activity begins and ends;
• Type of pile removal activities that take place;
• Weather parameters (
• Species counts, and, if possible, sex and age classes of any observed marine mammal species;
• Marine mammal behavior patterns, including bearing and direction of travel;
• Any observed behavioral reactions just prior to, during, or after construction activities;
• Location of marine mammal, distance from observer to the marine mammal, and distance from pile driving activities to marine mammals;
• Whether an observation required the implementation of mitigation measures, including shutdown procedures and the duration of each shutdown; and
• Any acoustic or visual disturbances that take place.
Chevron must submit a draft marine mammal monitoring report to NMFS within 90 days after the completion of pile driving activities, or 60 days prior to the requested issuance of any future IHAs for the project, or other projects at the same location, whichever comes first. A final report must be prepared and submitted within 30 calendar days following receipt of any NMFS comments on the draft report. If no comments are received from NMFS within 30 calendar days of receipt of the draft report, the report shall be considered final. The marine mammal report would include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets and/or raw sighting data. Specifically, the report would include:
• Dates and times (begin and end) of all marine mammal monitoring;
• Construction activities occurring during each daily observation period, including: (a) How many and what type of piles were driven or removed and the method (
• PSO locations during marine mammal monitoring; and
• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance.
For each observation of a marine mammal, the following would be recorded:
• Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting;
• Time of sighting;
• Identification of the animal(s) (
• Distance and location of each observed marine mammal relative to pile being driven or removed for each sighting;
• Estimated number of animals (min/max/best estimate);
• Estimated number of animals by cohort (adults, juveniles, neonates, group composition,
• Description of any marine mammal behavioral observations (
• Animal's closest point of approach and estimated time spent within the harassment zone.
Additionally, Chevron must include the following information in the report:
• Number of marine mammals detected within the harassment zones, by species; and
• Detailed information about any implementation of any mitigation triggered (
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, Chevron would report the incident to the Office of Protected Resources (OPR) (
The report would include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
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 discussion of our analysis applies to all the species listed in table 2, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or
Level A harassment is extremely unlikely given the small size of the Level A harassment isopleths and the required mitigation measures designed to minimize the possibility of injury to marine mammals. No serious injury or mortality is anticipated given the nature of the activity.
Pile driving activities have the potential to disturb or displace marine mammals. Specifically, the project activities may result in take, in the form of Level B harassment from underwater sounds generated from impact and vibratory pile driving activities. Potential takes could occur if individuals move into the ensonified zones when these activities are underway.
The takes by Level B harassment would be due to potential behavioral disturbance. The potential for harassment is minimized through construction methods and the implementation of planned mitigation strategies (see Proposed Mitigation section).
Take would occur within a limited, confined area of each stock's range. Further, the amount of take authorized is extremely small when compared to stock abundance.
No marine mammal stocks for which take is proposed are listed as threatened or endangered under the ESA or determined to be strategic or depleted under the MMPA. The relatively low marine mammal occurrences in the area, small shutdown zones, and planned monitoring make injury takes of marine mammals unlikely. The shutdown zones would be thoroughly monitored before the pile driving activities begin, and activities would be postponed if a marine mammal is sighted within the shutdown zone. There is a high likelihood that marine mammals would be detected by trained observers under environmental conditions described for the project. Limiting construction activities to daylight hours would also increase detectability of marine mammals in the area. Therefore, the mitigation and monitoring measures are expected to eliminate the potential for injury and Level A harassment as well as reduce the amount and intensity of Level B behavioral harassment. Furthermore, the pile driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations which have occurred with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment.
Anticipated and authorized takes are expected to be limited to short-term Level B harassment (behavioral disturbance) as construction activities would occur intermittently over the course of 30 days. Effects on individuals taken by Level B harassment, based upon reports in the literature as well as monitoring from other similar activities, may include increased swimming speeds, increased surfacing time, increased haul out time by pinnipeds, or decreased foraging (
As previously described, a UME has been declared for Eastern Pacific gray whales. However, we do not expect proposed takes for authorization in this action to exacerbate the ongoing UME. As mentioned previously, no injury or mortality is proposed for authorization, and take by Level B harassment is limited (2 takes over the duration of the project). Therefore, we do not expect the proposed take authorization to compound the ongoing UME.
The project is not expected to have significant adverse effects on marine mammal habitat. There are no known Biologically Important Areas (BIAs) or ESA-designated critical habitat within the project area, and the activities would not permanently modify existing marine mammal habitat. Although harbor seal haul out sites are located in the Bay, hauled out seals are not likely to be impacted. PSOs during the seismic retrofit of the Richmond Bridge did not note any decline in use by harbor seals at Castro Rocks, a haul out site which is approximately 20 to 100 m from the bridge (Greene
In combination, these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities would have only minor, short-term effects on individuals. The specified activities are not expected to impact reproduction or survival of any individual marine mammals, much less have impacts on annual rates of recruitment or survival.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect any of the species or stocks through effects on annual rates of recruitment or survival:
• No serious injury, mortality, or Level A harassment is anticipated or proposed for authorization;
• The specified activities and associated ensonified areas are very small relative to the overall habitat ranges of all species;
• The project area does not overlap known BIAs or ESA-designated critical habitat;
• The lack of anticipated significant or long-term effects to marine mammal habitat;
• The presumed efficacy of the mitigation measures in reducing the effects of the specified activity; and
• Monitoring reports from similar work in the Bay have documented little to no effect on individuals of the same species impacted by the specified activities.
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 proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity would have a negligible impact on all affected marine mammal species or stocks.
As noted previously, only take of small numbers of marine mammals may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
The amount of take NMFS has authorized is below one-third of the estimated stock abundances for all seven stocks (refer back to table 8). For most stocks, the proposed take of individuals is less than 2 percent of the abundance of the affected stock (with exception for harbor seals at 23 percent). This is likely a conservative estimate because it assumes all takes are of different individual animals, which is likely not the case for harbor seals, given the nearby haulout. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily 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
No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to Chevron's for conducting pile driving activities in San Francisco Bay from June 1, 2023 through November 30, 2023, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at:
We request comment on our analyses, the proposed authorization, and any other aspect of this notice of proposed IHA for the proposed construction project. We also request comment on the potential renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform decisions on the request for this IHA or a subsequent renewal IHA.
On a case-by-case basis, NMFS may issue a one-time, 1 year renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical or nearly identical activities as described in the Description of Proposed Activities section of this notice is planned or (2) the activities as described in the Description of Proposed Activities section of this notice would not be completed by the time the IHA expires and a renewal would allow for completion of the activities beyond that described in the
• A request for renewal is received no later than 60 days prior to the needed renewal IHA effective date (recognizing that the renewal IHA expiration date cannot extend beyond one year from expiration of the initial IHA).
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted under the requested renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; withdrawal of application.
Notice is hereby given that Yara Bernaldo de Quirós, Ph.D., University of Colorado Boulder, Boulder, CO 80309, has withdrawn an application for a permit to receive parts from bottlenose dolphins (
The application and related documents are available for review upon written request via email to
Jennifer Skidmore or Shasta McClenahan, Ph.D., (301) 427-8401.
On February 17, 2023, notice was published in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Mackerel, Squid, and Butterfish Advisory Panel will hold a public webinar meeting.
The meeting will be held on Wednesday, April 26, 2023, from 1 p.m. to 4 p.m.
The meeting will be held via webinar. Connection information will be posted to
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Mackerel, Squid, and Butterfish Advisory Panel will meet via webinar to discuss recent performance of the butterfish and Atlantic chub mackerel fisheries and develop Fishery Performance Reports. These reports will be considered by the Scientific and Statistical Committee, the Monitoring Committee, and the Mid-Atlantic Fishery Management Council when reviewing 2024 catch and landings limits and management measures. The results of the April 2023 Council meeting relating to the
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 Mid-Atlantic Fishery Management Council's Tilefish Advisory Panel will hold a public meeting.
The meeting will be held on Thursday, April 20, 2023, from 9 a.m. to 12 p.m. For agenda details, see
The meeting will be held via webinar. Webinar connection, agenda items, and any additional information will be available at
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The purpose of this meeting is to discuss recent performance of the blueline and golden tilefish commercial and recreational fisheries and develop Fishery Performance Reports. These reports will be considered by the Scientific and Statistical Committee, the Monitoring Committee, and Mid-Atlantic Fishery Management Council when reviewing 2024 catch and landings limits and management measures for blueline and golden tilefish.
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.
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 Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451
As part of this submission, a few questions will be modified to clarify the information that should be provided as part of the information requests and questionnaires sent to the coastal program and reserve managers. One new question about efforts in diversity, inclusion, equity, and accessibility will be included for coastal program and reserve managers. A few questions will be revised to clarify and improve the usefulness of responses for the partners and stakeholders' survey.
Given the addition of a designated research reserve since the last renewal of this information collection and the anticipated designation of additional reserves in the coming years, and an increase in Office for Coastal Management staff capacity to conduct evaluations, the number of CZMA programs to be evaluated, on average, in the next three years will increase from 11 to 12 programs per year. This increase in the number of programs to be evaluated will also increase the number of partner and stakeholder respondents to this information collection.
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
United States Patent and Trademark Office, Department of Commerce.
Notice of interim patent term extension.
The United States Patent and Trademark Office has issued an order granting a one-year interim extension of the term of U.S. Patent No. 9,314,630 ('630 patent).
Ali Salimi, Senior Legal Advisor, Office of Patent Legal Administration, by telephone at 571-272-0909 or by email to
35 U.S.C. 156 generally provides that the term of a patent may be extended for a period of up to five years, if the patent claims a product, or a method of making or using a product, that has been subject to certain defined regulatory review. 35 U.S.C. 156(d)(5) generally provides that the term of such a patent may be extended for no more than five interim periods of up to one year each, if the approval phase of the regulatory review period is reasonably expected to extend beyond the expiration date of the patent.
On March 23, 2023, Medtronic Ireland Manufacturing Unlimited Company, the owner of record of the '630 patent, timely filed an application under 35 U.S.C. 156(d)(5) for an interim extension of the term of the '630 patent. The '630 patent claims a method of using the product Symplicity Spyral® system, which includes the Symplicity Spyral catheter and the Symplicity G3 generator. The application for interim patent term extension indicates that a Premarket Approval Application (PMA) PMA-220026 was submitted to the Food and Drug Administration (FDA) on March 15, 2015, and that the FDA's review thereof is ongoing.
Review of the interim patent term extension application indicates that, except for permission to market or use the product commercially, the '630 patent would be eligible for an extension of the patent term under 35 U.S.C. 156. Because it appears the approval phase of the regulatory review period will continue beyond the expiration date of the patent,
An interim extension under 35 U.S.C. 156(d)(5) of the term of U.S. Patent No. 9,314,630 is granted for a period of one year from the expiration date of the '630 patent.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to and deletions from the Procurement List.
The Committee is proposing to add service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes product(s) previously furnished by such agencies.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 785-6404, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the service(s) listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following service(s) are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following product(s) are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the Procurement List.
This action adds product(s) and service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
Michael R. Jurkowski, Telephone: (703) 785-6404, or email
On 12/23/2022 and 1/27/2023, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List. This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the product(s) and service(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the product(s) and service(s) listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product(s) and service(s) to the Government.
2. The action will result in authorizing small entities to furnish the product(s) and service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) proposed for addition to the Procurement List.
Accordingly, the following product(s) and service(s) are added to the Procurement List:
Consumer Financial Protection Bureau.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (CFPB or Bureau) is
Written comments are encouraged and must be received on or before May 1, 2023 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
•
•
•
Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Requests for additional information should be directed to Anthony May, PRA Officer, at (202) 435-7278, or email:
Department of the Air Force, Board of Visitors of the U.S. Air Force Academy
Notice of federal advisory committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Board of Visitors (BoV) of the U.S. Air Force Academy (USAFA) will take place.
Open to the public Thursday, April 13, 2023 from 8:00 a.m. to 5:00 p.m. (Mountain Time).
The meeting will occur at the United States Air Force Academy, Colorado Springs, Colorado, as well as virtually. Members of the public will only be allowed to attend the meeting virtually. The link for the virtual meeting can be found at:
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C. 1001
Department of the Air Force, DoD.
Meeting notice.
The Department of Defense (DoD) is publishing this notice to announce the following Federal Advisory Committee meeting of the Board of Visitors (BoV) of the Air University.
Tuesday, April 4, 2023, from 8 a.m. to 5 p.m. and Wednesday, April 5, 2023, from 8 a.m. to 3 p.m. (Central Time).
Air University Commander's Conference Room, Building 800, Maxwell Air Force Base, AL.
Dr. Shawn P. O'Mailia, Designated Federal Officer, Air University Headquarters, 55 LeMay Plaza South, Maxwell Air Force Base, Alabama 36112-6335, telephone (334) 953-4547.
This meeting is held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(5)(C) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-0C.
(i)
(ii)
Date: May 3, 2019
Implementing Agency: Army
Funding Source: National Funds
(iii)
This transmittal reports the inclusion of an additional five hundred ten (510) Patriot Advanced Capability 3 (PAC-3) Missiles Segment Enhanced (MSE) (includes 10 fly-to-buy missiles). The following non-MDE items will also be included: tools and test equipment, support equipment, publications and technical documentation, personnel training and training equipment, spare and repair parts, facility design, U.S. Government and contractor technical, engineering, and logistics support services, and other related elements of logistics, sustainment and program support. The total cost of the new MDE articles is $2.728 billion. The total
(iv)
(v)
(vi)
(vii)
Defense Security Cooperation Agency, Department of Defense (DoD).
Arms sales notice.
The DoD is publishing the unclassified text of an arms sales notification.
Neil Hedlund at
This 36(b)(1) arms sales notification is published to fulfill the requirements of section 155 of Public Law 104-164 dated July 21, 1996. The following is a copy of a letter to the Speaker of the House of Representatives, Transmittal 21-64 with attached Policy Justification and Sensitivity of Technology.
(i)
(ii)
Funding Source: National Funds.
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
*As defined in Section 47(6) of the Arms Export Control Act.
The Government of Greece has requested to buy equipment and services to repair, update, and enhance their four (4) existing Hellenic Navy (HN) MEKO Class frigates. These upgrades will include the following: eight (8) Close in Weapon Systems (CIWS) Phalanx BLK 1B Baseline 2 upgrade kits; four (4) MK 45, 5″ 54 caliber gun overhauls; four (4) MK 49 Guided Missile Launcher Systems; four (4) COMBATSS-21 Combat Management Systems; and, four (4) AN/SQS-56 Sonar overhauls. Also included is the repair and/or upgrade of existing systems; ordnance; testing; training; systems integration; follow-on technical support; acquisition, upgrades, and overhaul of Narwhal 20A Gun System; Sylena MK 2 Decoy Launching System with CANTO torpedo countermeasure; Radar/Fire Control TRS-4D; Identification Friend or Foe (IFF) Mode 5; NIXIE SLQ-25 Surface Ship Torpedo Defense System; Helicopter Handling System (Repairs); Defense Advance GPS Receiver (DAGR); Gun Computer System (GCS); Low Frequency Active Towed Sonar (LFATS); Compact Low Frequency Active Passive Variable Depth Sonar-2 (CAPTAS-2); Infrared Search & Track System (IRST); Elta Electronic Warfare (EW), with C-ESM, R-ESM, and ECM capability; Naval Laser-Warning System (NLWS); 7 meter Rigid Hull Inflatable Boat (RHIB); SQQ-89 ASW System; Fire Control Radar System; Improved Point Detection System-Lifecycle Replacement (IPDS-LR); Enhanced Maritime Biological Detection (EMBD), as well as significant Hull, Mechanical and Electrical upgrades, replacements, and repairs; support and test equipment; spare and repair parts; communications equipment, including Link 16 communications equipment; Battlefield Information Collection and Exploitation System (BICES); AN/SRQ-4 Tactical Common Datalink (TCDL); Global Command and Control System-Joint (GCCS-J); Air Defense Systems Integrator (ADSI); cryptographic equipment including SY-150, SY-117G, and KYV-5M; software delivery and support; publications and technical documentation; personnel training and training equipment; U.S. Government and contractor engineering, systems integration, technical, and logistics support services; test and trials support; studies and surveys; and other related elements of logistical and program support. The estimated total cost is $2.5 billion.
This proposed sale will support the foreign policy and national security objectives of the United States by helping to improve the security of a NATO ally, which is an important partner for political stability and economic progress in Europe.
The proposed sale will improve Greece's capability to meet current and future threats by providing an effective combatant deterrent capability to protect maritime interests and infrastructure in support of its strategic location on NATO's southern flank. This acquisition, which will be awarded to the winner of an international competition for the Hellenic Navy (HN) MEKO Class Frigate Upgrade, will enhance stability and maritime security in the Eastern Mediterranean region and contribute to security and strategic objectives of NATO and the United States. Greece contributes to NATO operations in Kosovo, as well as to counterterrorism and counter-piracy maritime efforts. Greece will have no difficulty absorbing these articles and services into its armed forces.
The proposed sale of this equipment and support will not alter the basic military balance in the region.
The principal contractors will be Raytheon Missiles and Defense, Waltham, MA; Lockheed Martin, Bethesda, MD; BAE Systems, Arlington, VA; and VSE Corporation, Alexandria, VA. There are no known offset agreements in connection with this potential sale.
Implementation of this proposed sale will require the assignment of 3 additional U.S. Government and (5) contractor representatives, Full-Time Equivalent (FTE) positions to Greece.
There will be no adverse impact on U.S. defense readiness as a result of this proposed sale.
(vii)
1. The MEKO Class Frigate Modernization (Upgrades) will provide Greece with an increased ability to identify, engage, and defeat maritime security threats in open waters of the Mediterranean and Aegean Seas (NATO's Southern Flank). These enhancements will deliver protection-in-depth for Greece's industrial infrastructure and sea lines of communication.
a. Close in Weapon Systems (CIWS) MK 15 Phalanx BLK 1B Baseline 2 Upgrade Kits is a close-in weapon system for defense against incoming threats such as small boats, surface torpedoes, anti-ship missiles and helicopters. It was designed and manufactured by the General Dynamics Corporation, Pomona Division later a part of Raytheon. The upgraded MK 15 Phalanx 1B Baseline 2 improves detection performance, increases reliability, and reduces maintenance. It also has a surface mode to track, detect, and destroy threats closer to the water's surface, increasing the ability to defend against fast-attack boats and low-flying missiles.
b. MK 45, 5″ 54 Caliber Gun overhaul by performing a Standard Pier-Side Maintenance & Repair (SPMR) of the MK 45 Gun Systems. The MK 45 Gun is a fully-automatic naval gun mount employed against surface (Anti-Surface Warfare—ASuW), air (Anti-Air Warfare—AAW), and land attack (Naval Surface Fire Support—NSFS) targets.
c. MK 49 Guided Missile Launching System (GMLS) is used to deploy the Rolling Airframe Missile (RAM).
d. COMBATSS-21 is the ship's battle management system, which is produced by Lockheed Martin and derived from the USN's latest AEGIS combat management system. The COMBATSS-21 Combat Management System is the backbone of the Freedom-variant self-defense suite and integrates the radar, electro-optical infrared cameras, gun fire control system, countermeasures and short-range anti-air missiles.
e. Upgrading the existing AN/SQS-56 Sonar is accomplished by replacement of defective transducers and staves and upgrading the electronics in the Hull Mounted Sonar as well as the SQS-56 adjunct processor. The AN/SQS-56 is a modern hull-mounted sonar. The sonar is an active/passive, preformed beam, digital sonar providing panoramic echo ranging and panoramic (DIMUS) passive surveillance. A single operator can search, track, classify and designate multiple targets from the active system while simultaneously maintaining anti-torpedo surveillance on the passive display.
f. The 20mm Narwhal gun system is a gyro-stabilized mount armed with a 20mm automatic cannon, an electro-optic, charge-coupled device camera, and a closed loop, fire-control system, which can be controlled remotely to enable system operation, target acquisition and tracking, and fire opening by the gun operator. Optional add-ons include a thermal camera, laser rangefinder and target automatic tracking video system. The 20mm gun has a firing rate of 800 rounds per minute of NATO standard ammunition, and is produced by the French Government-owned Nexter Systems.
g. Sylena MK 2 Decoy Launching System with CANTO is a torpedo countermeasure. The Sylena MK 2 launches the CANTO decoy, which generates a high-level, 360-degree acoustic signal to jam the full frequency range of an attacking torpedo. Sylena MK 2 is available internationally from Lacroix; CANTO from Naval Group.
h. TRS-4D radar is a three-dimensional, air volume surveillance radar with fast target alert, which provides target designation to the combat management system for anti-air warfare (AAW) and anti-surface warfare (ASuW). The TRS-4D radar is manufactured by Hensoldt a German company. It provides sensor support for surface gun fire control with splash detection, ship-controlled helicopter approach support, jammer detection, tracking and suppression, cued search with enhanced detection performance for a dedicated sector, cued track with high-accuracy target tracking for missile guidance, and target classification, integrated IFF, and is integrated with the combat management system. The system is available internationally through Hensoldt.
i. Identification Friend or Foe (IFF) Mode 5 is an identification system designed for command and control. It enables military and national (civilian air traffic control) interrogation systems to identify aircraft, vehicles or forces as friendly. Mode 5 provides a cryptographically secured version of Mode S and ADS-8 GPS position.
j. AN/ARC-210 GEN 6 (RT-2036(C)) version is a radio that provides two-way, multi-mode voice and data communications with military aircraft over Very High Frequency (VHF) and Ultra High Frequency (UHF) range using U.S. Type 1 encryption. ARC-210 radios contain embedded sensitive encryption algorithms, keying material and integrated waveforms.
k. SY-117G is a combat manpack radio with Type 1 encryption for secure voice communication. In the HN MEKO Upgrade configuration, the radio will be used for interoperable, secure Satellite Communications (SATCOM). The SY-117G COMSEC device is a Controlled Cryptographic Item (CCI).
l. SY-150 is a combat manpack radio with Type 1 encryption. The SY-150 COMSEC device is a CCI.
m. KYV-5M supports tactical secure voice communications. The KYV-5M COMSEC device is a CCI.
n. The Battlefield Information Collection and Exploitation System (BICES) is a web-enabled, multi-national intelligence system that provides near real-time, correlated, situation and order of battle information.
o. Global Command and Control System-Joint (GCCS-J) is a command, control, communications, computers, and intelligence system consisting of hardware, software (commercial-off-the-shelf and government-off-the-shelf), procedures, standards, and interfaces that provide an integrated near real-time picture of the battlespace necessary to conduct joint and multinational operations. For the HN MEKO Upgrade configuration, GCCS-J will use Type 1 encryption.
p. Air Defense Systems Integrator (ADSI) is a tactical command and control system that integrates land, air and sea domains to report real-time sensor information across the battlespace.
q. The NIXIE SLQ-25 Surface Ship Torpedo Defense System is a digitally controlled, electro-acoustic, soft kill countermeasure decoy system capable of countering wake homing torpedoes, acoustic homing torpedoes, and wire guided torpedoes. NIXIE provides active/passive detection, location, threat identification of torpedoes and other acoustic targets. NIXIE's towed body, the decoy which diverts the threat from the ship, connects to the management system using a fiber optic cable to control the signals emitted by the decoy.
r. Defense Advance GPS Receiver (DAGR) provides secure, military Selective Availability/Anti-Spoofing Module (SAASM)-based GPS in the most reliable and proven handheld form available today. It is a military-grade, dual-frequency receiver, and has the security hardware necessary to decode encrypted P(Y)-code GPS signals. Features include: graphical screen, with the ability to overlay map images, 12-channel continuous satellite tracking for “all-in-view” operation, simultaneous L1/L2 dual frequency GPS signal reception, extended performance in a diverse jamming environment, and SAASM compatibility.
s. The Gun Computer System (GCS) directs the actions of the ship's main gun battery and receives orders for
t. Low Frequency Active Towed Sonar (LFATS) is a low frequency, variable depth sonar used to detect, track and engage submarines. LFATS incorporates active and passive processing with 360-degree coverage. The VDS-100 system is designed for high performance at a lower operating frequency for improved performance.
u. Compact Low Frequency Active Passive Variable Depth Sonar-2 (CAPTAS-2) is a key sensor technology for identifying conventional, diesel-powered submarines operating in difficult sonar environments, such as littoral waters. CAPTAS-2 employs a single winch, which is used to pull the transmit tow body, and receiver array.
v. Infrared Search and Track (IRST) is a 360-degree, panoramic, day and night, passive air and surface surveillance system. The IRST system provides long-range detection with tracking of conventional, asymmetric and emerging threats.
w. Elta Electronic Warfare (EW) suite provides Radar Electronic Support Measures (RESM), Communications Electronics Support Measures (CESM), and Electronic Countermeasures (ECM) with counter-Unmanned Aerial System capability. Elta EW to include C-ESM, R-ESM, and ECM capability. The Elta EW suite is available internationally through ELTA Systems, a subsidiary of Israel Aerospace Industries.
x. Naval Laser-Warning System (NLWS) provides real time situational awareness of laser-based threats to enhance the tactical picture. NLWS interfaces with the ship's CMS, electronic support measures and onboard countermeasure system. NLWS is available internationally from SAAB.
y. SRQ-4 provides the Tactical Common Data Link (TCDL) to serve COMBATSS-21 for command and control (C2) functions for radar, FLIR and ESM data. Also, as the TCDL terminal on the ship, the AN/SRQ-4 exchanges classified SECRET level acoustic data with the AN/SQQ-89 for real-time shipboard processing of MH-60R deployed sonobuoys, increased sonobuoy processing, updated sonobuoy control and increased ASW tracks. The AN/SQQ-89 accepts MH-60R ASW data and processes the data shipboard as a coordinated tactical ASW picture with the Variable Depth Sonar. ASW Operators, at AN/SQQ-89 consoles, analyze the classified SECRET level data and integrate with COMBATSS-21 to provide full implementation and access to the capabilities of the MH-60R. The MH-60R Multi-Mission Helicopters, procured by the Hellenic Navy under a separate FMS case, introduces dipping sonar, upgraded radar, electronic warfare, weapons including MK 54 torpedoes and external command and control systems. With the MH-60R comes the need for a Ku-Band Common Data Link via a shipboard AN/SRQ-4 Radio Terminal System to support the high data rate requirements associated with aircraft systems.
z. The AN/SQQ-89 Undersea Warfare Combat System is a naval anti-submarine warfare (ASW) system for surface warships. The system presents an integrated picture of the tactical situation by receiving, combining and processing active and passive sensor data from the hull-mounted array, towed array and sonobuoys. The AN/SQQ-89 will interface with the SQS-56 sonar, VDS, SQR-4 and COMBATSS-21. It provides a full range of undersea warfare (USW) functions including active and passive sensors, underwater fire control, onboard trainer and a highly evolved display subsystem.
aa. The Fire Control Radar System is a medium-to-long range radar that interfaces with the Gun Control System (GCS) and COMBATSS-21.
bb. Improved Point Detection System-Lifecycle Replacement (IPDS-LR) is a ship-based Chemical Warfare Agent (CWA) detector designed for chemical detection of chemical warfare agent vapors onboard navy ships. The detector units have special interference rejection built into the detection algorithm and meets specifications for false alarm thresholds with sensitivity requirements. The sampling system includes specially designed sampling lines, filters, and bulkhead adapters to operate in marine environments.
cc. Enhanced Maritime Biological Detection (EMBD) is an automated biological point detection and identification system that provides near real time biological detection, warning, and presumptive identification against Biological Warfare Agents (BWAs). EMBD will provide an early indication that a BWA attack has occurred and provide identification information allowing ship commanding officers to select from an array of countermeasures that can prevent or limit exposure to the ship and other ships in the naval task force.
dd. Link 16 is an advanced command, control, communications, and intelligence (C3I) system incorporating high capacity, jam-resistant, digital communication links for exchange of near real-time tactical information, including both data and voice, among air, ground, and sea elements. It provides the warfighter key theater functions such as surveillance, identification, air control, weapons engagement coordination, and direction for all services and allied forces. With modernized cryptography, Link 16 will ensure interoperability into the future.
2. The overall highest level of classification of defense articles, components, and services included in this potential sale is SECRET.
3. If a technologically advanced adversary were to obtain knowledge of the specific hardware and software elements, the information could be used to develop countermeasures that might reduce weapon system effectiveness, or be used in the development of a system with similar or advanced capabilities.
4. A determination has been made that Greece can provide substantially the same degree of protection for the sensitive technology being released as the U.S. Government. This sale is necessary in furtherance of the U.S. foreign policy and national security objectives outlined in the Policy Justification.
5. All defense articles and services listed in this transmittal have been authorized for release and export to the Government of Greece.
Under Secretary of Defense for Personnel and Readiness, Department of Defense (DoD).
Notice of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Uniform Formulary Beneficiary Advisory Panel (UF BAP) will take place.
Open to the public Tuesday, April 4, 2023, 10:00 a.m.-1:00 p.m. (Eastern Standard Time).
The meeting will be held telephonically or via conference call. The phone number for the remote access on April 4, 2023 is: CONUS: 1-800-
These numbers and the dial-in instructions will also be posted on the UF BAP website at:
Designated Federal Official (DFO) Colonel Paul B. Carby, USA, 703-681-2890 (voice),
This meeting is being held under the provisions of chapter 10 of the United States Code (U.S.C.) (commonly known as the Federal Advisory Committee Act or FACA, the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.140 and 102-3.150.
Due to circumstances beyond the control of the Designated Federal Officer, the Uniform Formulary Beneficiary Advisory Panel was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its April 4, 2023 meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2023 for the Nita M. Lowey 21st Century Community Learning Centers (21st CCLC) National Technical Assistance Center (NTAC), Assistance Listing Number 84.287E. This notice relates to the approved information collection under OMB control number 1894-0006.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Julie Coplin, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: (202) 987-1797. 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.
Out-of-school time programming can be a key to success when programs are evidence-based and effective. For
The work the 21st CCLC NTAC will do is aligned with other key Department initiatives that are supporting access to urgently needed out-of-school time programming. For example, the Department launched the National Partnership for Student Success, a public-private partnership, to help increase the number of tutors, mentors, student success coaches, postsecondary transition coaches, and integrated student support coordinators to help students get back on track. (See
21st CCLCs provide academic enrichment opportunities during non-school hours for students attending high-poverty, low-performing schools. The Department allocates 21st CCLC funds to SEAs that, in turn, award competitive subgrants to various entities to provide 21st CCLC programs. The awardee of this grant will work collaboratively with the Department to: (a) identify needs of SEAs and 21st CCLC subgrantees, (b) provide best practices in program implementation, (c) develop technical assistance opportunities and tools, and (d) implement supports using a continuous improvement approach. The grantee will build the capacity of SEAs and their 21st CCLC subgrantees through communities of practice and the development of tools, webinars, resources, and courses that will be disseminated through a web portal in English, with a subset translated into Spanish, to support independent, self-paced learning. The Department also will house materials from the 21st CCLC Summer Symposium and annual meetings with SEA 21st CCLC directors on the portal. Members of the public will have access to the portal, although there will be a separate login for SEAs and 21st CCLC subgrantees. The grantee will develop and disseminate a monthly newsletter that will share recently developed products (
The 21st CCLC NTAC will initially focus on: (a) students' academic and mental health needs and alignment with the traditional school day (
Upon award of this grant, the grantee will enter into a cooperative agreement with the Department that will set forth how the 21st CCLC NTAC will be developed, managed, and evaluated. As part of the cooperative agreement, the grantee will submit a plan to the Department for its review and approval that, for each year of the grant, lays out its technical assistance plan, focusing on technical assistance to individual SEAs, groups of SEAs (and possibly including 21st CCLC subgrantees), and to the 21st CCLC field at large.
This notice contains one absolute priority and three competitive preference priorities. We are establishing the Absolute Priority for the FY 2023 grant competition and any subsequent year in which we make awards from the list of unfunded applications from this competition, in accordance with section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. 1232(d)(1). Competitive Preference Priorities 1, 2, and 3 are from the Secretary's Supplemental Priorities and Definitions for Discretionary Grant Programs, published in the
This priority is:
The 21st CCLC NTAC must provide high-quality, universal and targeted capacity-building services to SEAs and 21st CCLC subgrantees to address common implementation challenges facing SEAs and 21st CCLC subgrantees and emerging trends in out-of-school time settings. The initial set of proposed activities must focus on (a) students' academic and mental health needs and alignment with the traditional school day (
Projects that are designed to address the impacts of the COVID-19 pandemic, including impacts that extend beyond the duration of the pandemic itself, on the students most impacted by the pandemic, with a focus on underserved students and the educators who serve them, both priority areas:
(a) Providing resources and supports to meet the basic, fundamental, health and safety needs of students and educators.
(b) Addressing students' social, emotional, mental health, and academic needs through approaches that are inclusive with regard to race, ethnicity, culture, language, and disability status.
Projects that are designed to promote educational equity and adequacy in student access to educational resources and opportunities for underserved students:
(a) In out-of-school-time settings; and
(b) That examine the sources of inequity and inadequacy and implement responses, by increasing student racial or socioeconomic diversity through developing evidence related to, or providing technical assistance on, evidence-based policies or strategies designed to increase inclusivity with regard to race, ethnicity, culture, language, and disability status.
Projects that are designed to improve students' social, emotional, academic, and career development, with a focus on underserved students, through both of the following priority areas:
(a) Providing multi-tiered systems of supports that address learning barriers both in and out of the classroom, that enable healthy development and respond to students' needs and which may include evidence-based trauma-informed practices and professional development for educators on avoiding deficit-based approaches.
(b) Preparing educators to implement project-based or experiential learning opportunities for students to strengthen their metacognitive skills, self-direction, self-efficacy, competency, or motivation, including through instruction that: Connects to students' prior knowledge and experience; provides rich, engaging, complex, and motivating tasks; and offers opportunities for collaborative learning.
(1) Explain how the grantee's program design will create high-quality technical assistance for SEAs and 21st CCLC subgrantees in their work with targeted student populations and how the grantee will develop and implement a continuous improvement cycle to support the work.
(2) Describe how the grantee's project services will be carried out using a multi-tiered system of support to provide technical assistance virtually and onsite.
(3) Demonstrate expert knowledge of statutory requirements and regulations related to Title IV, Part B of the Elementary and Secondary Education Act of 1965 (ESEA) and current education issues and policy initiatives for supporting the implementation and scaling of evidence-based programs, practices, and interventions related to out-of-school time programming.
(4) Describe the current research on adult learning principles, coaching, and implementation science that will inform the applicant's capacity-building services.
(5) Present a proposed 5-year service plan that considers commonalities identified in final Department monitoring reports for 21st CCLC, implementation challenges faced by SEAs and 21st CCLC subgrantees, and emerging trends in out-of-school time settings. The 5-year service plan must include for each year, at a minimum, the following elements: high-leverage problems to be addressed, capacity-building services to be delivered both universally and through targeted assistance to SEAs and 21st CCLC subgrantees, key personnel responsible, milestones, outputs, and outcome measures.
(6) Present a proposed evaluation plan that describes the criteria for whether (a) milestones are met, (b) outputs are met, (c) SEA and 21st CCLC subgrantee outcomes (
(7) A description of the applicant's demonstrated experience in providing training, information, and support to SEAs, local educational agencies (LEAs), schools, educators, parents, and organizations on effective out-of-school time policies and practices.
(1) Develop a service plan annually in consultation with the Department. The service plan must consider commonalities identified in finalized Department monitoring report findings in 21st CCLC programs, implementation challenges faced by SEAs and 21st CCLC subgrantees, and emerging trends in out-of-school time settings. The annual service plan must be an update to the 5-year plan submitted as part of the 21st CCLC NTAC's application. The annual service plan must include, at a minimum, the following elements: high-leverage problems to be addressed, capacity-building services to be delivered both universally and through targeted assistance to individual SEAs and 21st CCLC subgrantees, key personnel responsible, milestones, outputs, and outcome measures.
(2) Create and maintain the 21st CCLC NTAC website with an easy-to-navigate design that meets government or industry-recognized standards for accessibility.
(3) Obtain and retain education practitioners, researchers, policy professionals, and other consultants with direct experience with out-of-school time programs at the State and local level. Personnel must have a proven record of publishing in peer-reviewed journals, presenting at national conferences, and/or delivering quality adult learning experiences that meet SEA and 21st CCLC subgrantees' needs.
(4) Disseminate information (
(5) Assemble a Technical Assistance Advisory Committee (TAAC) consisting of SEAs and 21st CCLC subgrantees to work collaboratively on education strategies in out-of-school settings and implementation practices at least twice per year.
(6) Employ one full-time equivalent (FTE) project director who is capable of managing all aspects of the 21st CCLC NTAC.
(7) Within 90 days of receiving funding, demonstrate that any necessary contractors to assist in carrying out the
(i) demonstrates a statistically significant effect on improving student outcomes or other relevant outcomes based on—
(I) strong evidence from at least 1 well-designed and well-implemented experimental study;
(II) moderate evidence from at least 1 well-designed and well-implemented quasi-experimental study; or
(III) promising evidence from at least 1 well-designed and well-implemented correlational study with statistical controls for selection bias; or
(ii)(I) demonstrates a rationale based on high-quality research findings or positive evaluation that such activity, strategy, or intervention is likely to improve student outcomes or other relevant outcomes; and
(II) includes ongoing efforts to examine the effects of such activity, strategy, or intervention.
(a) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(b) A student of color.
(c) A student who is a member of a federally recognized Indian Tribe.
(d) An English learner.
(e) A child or student with a disability.
(f) A disconnected youth.
(g) A technologically unconnected youth.
(h) A migrant student.
(i) A student experiencing homelessness or housing insecurity.
(j) A lesbian, gay, bisexual, transgender, queer or questioning, or intersex (LGBTQI+) student.
(k) A student who is in foster care.
(l) A student without documentation of immigration status.
(m) A pregnant, parenting, or caregiving student.
(n) A student impacted by the justice system, including a formerly incarcerated student.
(o) A student performing significantly below grade level.
(p) A military- or veteran-connected student.
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• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.
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(a)
The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers one or more of the following factors:
(1) The extent to which the design of the proposed project is appropriate to, and will successfully address, the needs of the target population or other identified needs.
(2) The extent to which there is a conceptual framework underlying the proposed research or demonstration activities and the quality of that framework.
(3) The extent to which performance feedback and continuous improvement are integral to the design of the proposed project.
(b)
The Secretary considers the quality of the services to be provided by the proposed project. In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
In addition, the Secretary considers one or more of the following factors:
(1) The extent to which the services to be provided by the proposed project are appropriate to the needs of the intended recipients or beneficiaries of those services.
(2) The extent to which the services to be provided by the proposed project reflect up-to-date knowledge from research and effective practice.
(3) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(4) The likelihood that the services to be provided by the proposed project will lead to improvements in the achievement of students as measured against rigorous academic standards.
(c)
The Secretary considers the quality of the personnel who will carry out the proposed project. In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
In addition, the Secretary considers one or more of the following factors:
(1) The qualifications, including relevant training and experience, of the project director or principal investigator.
(2) The qualifications, including relevant training and experience, of key project personnel.
(3) The qualifications, including relevant training and experience, of project consultants or subcontractors.
(d)
The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers one or more of the following factors:
(1) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(2) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.
(3) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project.
(4) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(e)
The Secretary considers the quality of the evaluation to be conducted of the proposed project. In determining the quality of the evaluation, the Secretary considers the extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
3.
Additionally, a grantee or subgrantee that is awarded competitive grant funds must have a plan to disseminate these public grant deliverables. This dissemination plan can be developed and submitted after your application has been reviewed and selected for funding. For additional information on the open licensing requirements please refer to 2 CFR 3474.20.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a revision of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before May 30, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Freddie Cross, 202-453-7224.
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 information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The revisions to the IPRC consist of the following:
• A new sub-section about the impact of COVID-19 in Section I: Program Information. The section would have four questions in the first data collection year in which it is implemented, due to retrospective questions going back to academic year 2019-20, but only one question in subsequent data collection years.
• A new question about student completion rate in Section I: Program Information.
• Minor revisions to the gender and race/ethnicity categories in Section I: Program Information.
The revisions to the SRC consist of the following:
• Two new items showing completion rate, total and by program, pre-loaded from the IPRC for state
• Five new multiple choice questions in Section VII: Teacher Shortages and Teacher Preparation, which are replacing three open text items.
• A new “other” response option for a multiple choice item in Section IX: Improvement Efforts.
• A new multiple choice and open text item in Section IX: Improvement Efforts.
• A new section (Section X) about the impact of COVID-19. The section would have three questions in the first data collection year in which it is implemented, due to retrospective questions going back to academic year 2019-20, but only one question in subsequent data collection years.
• Minor revisions to the gender and race/ethnicity categories in Section I: Program Information.
Office of Special Education and Rehabilitative Services (OSERS), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before May 30, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact David Steele, 202-245-6520.
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 information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The information will be used by the RSA State Monitoring and Program Improvement Division (SMPID) to reallot formula grant funds for the awards mentioned above.
Office of Elementary and Secondary Education, Department of Education.
Request for information.
The Department of Education (Department) is requesting information on successful approaches to innovative assessment implementation that can encourage State educational agencies (SEAs) to pursue the Innovative Assessment Demonstration Authority (IADA) and improve statewide assessments. We will use this information to inform our implementation of IADA, under title I, part B of the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act (ESEA).
We must receive your comments on or before May 1, 2023.
Submit your comments to this request for information (RFI) through the Federal eRulemaking Portal
This is an RFI only. This RFI is not a request for proposals (RFP) or a promise to issue an RFP or a notice inviting applications. This RFI does not commit the Department to contract for any supply or service whatsoever. Further, we are not seeking proposals and will not accept unsolicited proposals. The Department will not pay for any information or administrative costs that you may incur in responding to this RFI. The documents and information submitted in response to this RFI become the property of the U.S. Government and will not be returned.
Patrick Rooney, U.S. Department of Education, 400 Maryland Avenue SW, Room 3W202, Washington, DC 20202. Telephone: (202) 453-5514. 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 ESEA requires annual assessments of all students in grades 3-8 and assessments of students once in high school. When developed thoughtfully, these assessments are tools for advancing learning and promoting equity. When assessments are done poorly, in excess, or without a clear purpose, they divert time and resources from teaching and learning. The ESEA affords States important discretion in implementing assessment systems, including the opportunity to pilot new approaches or designs in summative assessments through IADA.
IADA is authorized in section 1204 of the ESEA, and the implementing regulations for IADA are found in 34 CFR 200.104 through 34 CFR 200.108.
IADA seeks to help States interested in fostering and scaling up high-quality, innovative assessments that will replace their current summative assessments. An SEA would require this demonstration authority if the SEA proposes to develop an innovative assessment in any grade or subject that requires academic assessments (section 1111(b)(2)(B) of the ESEA). Additionally, the SEA seeking IADA must first administer the assessment, initially, to students in only a subset of its local educational agencies (LEAs) or schools. Under IADA, schools participating in a pilot assessment would not have to also administer the current statewide assessment in that grade or subject to all students in those LEAs or schools. The State will scale up the innovative assessment over time, eventually using it statewide at the end of the demonstration authority. During the period of the demonstration authority, the results of IADA assessment must be used in the State's accountability system and the results must be included on State and local report cards.
Since 2018, five States have been awarded IADA.
Section 1204(b)(2) of the ESEA establishes the five-year period for the demonstration authority, and ESEA section 1204(g) provides the Department with the discretion to extend the authority for an additional two years (if certain conditions are met as specified in 34 CFR 200.108(a)(1)). The ESEA further permits the Secretary to grant additional waivers to a State to extend the State's IADA authority, and the Department's regulations clarify that such waivers would be granted one year at a time.
(A) Administering full assessments from both the innovative and statewide assessment systems to all students enrolled in participating schools, such that at least once in any grade span (
(B) Administering full assessments from both the innovative and statewide assessment systems to a demographically representative sample of all students and subgroups of students described in section 1111(c)(2)
(C) Including, as a significant portion of the innovative assessment system in each required grade and subject in which both an innovative and statewide assessment are administered, items or performance tasks from the statewide assessment system that, at a minimum, have been previously pilot tested or field tested for use in the statewide assessment system.
(D) Including, as a significant portion of the statewide assessment system in each required grade and subject in which both an innovative and statewide assessment are administered, items or performance tasks from the innovative assessment system that, at a minimum, have been previously pilot tested or field tested for use in the innovative assessment system.
(E) An alternative method for demonstrating comparability that an SEA can demonstrate will provide for an equally rigorous and statistically valid comparison between student performance on the innovative assessment and the statewide assessment, including for each subgroup of students described in section 200.2(b)(11)(i)(A)-(I) and section 1111(b)(2)(B)(xi) and section 1111(h)(1)(C)(ii) of the Act.
The Department is seeking comments on whether these five approaches are sufficient to support States as they consider developing an assessment for implementation under the IADA authority, what additional examples or models of measuring comparability the Department should consider, and information about ideas or practices States might use to demonstrate comparability under section 200.105(b)(4)(i)(E).
In addition, current IADA regulations do not specify a timeline by which a State approved under IADA must begin to administer an operational IADA assessment in some schools or LEAs. Accordingly, the Department is seeking comments on whether the Department approving a State for IADA that includes a planning period would be helpful to the State in its development work.
We will review every comment and, as described above, electronic comments in response to this RFI will be publicly available on the Federal eRulemaking Portal at
1. The Department is interested in whether there are additional considerations or approaches to comparability, whether through changes to current IADA regulations or additional guidance (for elaborating on the “other method” in section 200.105(b)(4)(i)(E)), for the innovative assessment.
a. Are there other methodologies that could be used as models to provide comparable results to current statewide assessments without compromising the innovative nature of the new assessments?
b. Are there ways that a State could plan for an orderly transition from using the achievement standards for the current statewide assessments to achievement standards for the innovative assessment as it scales to statewide use?
c. We note that ESEA section 1204(e)(2)(A)(iv) states that the IADA “generate results that are valid and reliable, and comparable, for all students and for each subgroup of students described in section 1111(b)(2)(B)(xi), as compared to the results for such students on the State assessments under section 1111(b)(2);” and ESEA section 1204(e)(2)(A)(x) states that the IADA “generate an annual, summative achievement determination, based on the aligned State academic achievement standards under section 1111(b)(1) and based on annual data, for each individual student.” Within these statutory requirements, are there other issues with respect to comparability that the Department should clarify, either in regulation or guidance to help states meet this requirement? Please be specific in: (a) describing the issue; (b) identifying the proposed change to address the issue; and (c) identifying how the change will lead to a State being more likely to apply for IADA.
2. Current IADA regulations do not specify a timeline by which a State approved under IADA must administer an operational IADA assessment in some schools or LEAs.
a. Would a State be more likely to submit an IADA application if the Department explicitly provided one or two planning years, after the granting of IADA authority, before the State first administers an operational IADA assessment in some schools or LEAs?
b. Noting that the State would need to have enough detail about its plan for the Department to grant IADA approval or pre-approval, please describe the benefit to the State that would be provided with one or two years of planning time as well as suggestions for the types of activities the State would undertake during the planning time?
3. Please describe any other barriers in the Department's regulations that might preclude a State from applying for IADA. Please be specific in: (a) identifying the regulatory provision; (b) describing the issue; (c) identifying the proposed change to address the issue; and (d) identifying how the change will lead to a State being more likely to apply for IADA.
In providing feedback, commenters are encouraged to cite published research on promising practices and methodologies for innovative assessment design and implementation. The Department is committed to improving the public's access to, and the discoverability of, education research. In service of that goal, we encourage responders to share any publications with us and we invite authors, those who hold copyright, or their authorized representatives to consider depositing eligible content into ERIC, the Institute of Education Sciences' bibliographic and full-text database of education research (
You may also access documents of the Department published in the
Office of Career, Technical, and Adult Education; Office of Elementary and Secondary Education; Office of English Language Acquisition; Office of Postsecondary Education; and Office of Special Education and Rehabilitative Services, Department of Education.
Notice.
The U.S. Department of Education (Department) announces opportunities for individuals to participate in its peer review process for competitive grant funding under the programs administered by OCTAE, OESE, OELA, OPE, and OSERS.
Requests to serve as a peer reviewer for fiscal year 2023 will be accepted on an ongoing basis, aligned with this year's grant competition schedule. Requests to serve as a peer reviewer should be submitted at least four weeks prior to the program's application deadline noted on the Department's website under “Forecast of Funding Opportunities” at
An individual interested in serving as a peer reviewer must register and upload his or her resume in the Department's grants management system known as “G5” at
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 mission of the Department is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. The Department pursues its mission by funding grant programs that will improve access to high-quality educational opportunities and programs that pursue innovations in teaching and learning with a focus on underserved students. The Department also funds programs in other areas as authorized by statute. Grant funds are awarded to State educational agencies; local educational agencies (
Each year the Department convenes panels of external education professionals and practitioners to serve as peer reviewers.
Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through the Federal Government, directs Federal agencies to “assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs.” The Department is committed to increasing the racial and ethnic diversity of peer reviewers—an important element of the Department's efforts to implement this Executive order. Moreover, the Department is particularly interested in peer reviewers who represent diverse experiences and perspectives, including experiences working with diverse and underserved communities, and whose expertise pertains to OCTAE, OESE, OELA, OPE, and OSERS grant competitions, and this emphasis on increasing peer reviewer diversity is included in the Department's Agency Equity Plan, available at
This year, OCTAE is managing one grant competition: Career-Connected High School Initiative.
This year, OESE is managing approximately 25 grant competitions to fund a range of projects that support, education innovation and research; educator growth and diversity; magnet schools; charter schools; literacy; history and civics; family engagement; community schools; Indian education; school infrastructure; and out-of-school time learning, among others.
OELA is managing one grant competition: Native American and Alaska Native Children in School Program.
OPE is managing approximately 20 grant competitions to fund a wide range of projects, including projects to support improvements in educational quality, management, and financial stability at colleges and universities that enroll high numbers of underserved students; projects designed to increase college enrollment among students in high-poverty schools; projects designed to
OSERS is managing nearly 20 grant competitions. The competitions in OSERS' Office of Special Education Programs (OSEP) include those under the following programs: State Personnel Development Grants; Personnel Development; Technical Assistance and Dissemination; Educational Technology, Media, and Materials; Parent Training and Information; and Technical Assistance on State Data Collection. The remaining competitions in OSERS' Rehabilitation Services Administration (RSA) are Section 21: Capacity Building in Traditionally Underserved Populations and the Disability Innovation Fund.
The Department seeks to expand its pool of peer reviewers to ensure that applications are evaluated by individuals with up-to-date and relevant knowledge of educational interventions and practices across the learning continuum, from early education to college and career, in a variety of learning settings. Department peer reviewers are education professionals and practitioners who have gained subject matter expertise through their education and work as teachers, professors, principals, administrators, school counselors, researchers, evaluators, content developers, or vocational rehabilitation professionals or interpreters. Peer reviewers can be active education professionals in any educational level or sector, or those who are retired but stay informed of current educational content and issues. No prior experience as a peer reviewer is required.
Peer reviewers for each competition will be selected based on several factors, including each reviewer's program-specific expertise, the number of applications to be reviewed, and the diversity and availability of prospective reviewers. Individuals selected to serve as peer reviewers are expected to participate in training; independently read, score, and provide written evaluative comments on assigned applications; and participate in facilitated panel discussions with other peer reviewers. Panel discussions are held via conference calls or in-person, as identified for the specific competition. The time commitment for peer reviewers is usually several hours a day over a period of two to four weeks. Peer reviewers receive an honorarium payment as monetary compensation for successfully reviewing applications.
If you are interested in serving as a peer reviewer for the Department, you should first review the program web pages of the grant programs that match your area of expertise. You can access information on each grant program from the link provided on the Department's grants forecast page at
In addition to registering in G5, some OPE and OSERS/RSA peer reviews may require being registered in the System for Award Management (SAM). Since registration for this process can take longer than a week, interested individuals are encouraged to register in advance of being contacted by the Department. In addition to registering in G5, some OSERS/OSEP peer reviews require being approved to serve on the Office of Special Education's Standing Panel. Individuals should express their interest to serve as a peer reviewer for OSEP competitions directly to the competition manager listed in the Notice Inviting Applications at least four weeks prior to the application closing date.
If you have interest in serving as a reviewer specifically for the OCTAE competition (Chart 5 of the Forecast of Funding Opportunities), you must also send your resume to
If you have interest in serving as a reviewer specifically for OESE competitions (Chart 2), you must also send your resume to
If you have interest in serving as a reviewer specifically for the OELA competition (Chart 6), you must also send your resume to
If you have interest in serving as a reviewer specifically for RSA competitions (Chart 4B) also send your resume to
Requests to serve as a peer reviewer should be submitted at least four weeks prior to the program's application deadline, noted on the forecast page, to provide program offices with sufficient time to review resumes and determine an individual's suitability to serve as a peer reviewer for a specific competition. If you are selected to serve as a peer reviewer, the program office will contact you.
You may also access documents of the Department published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notification of petition for waiver and grant of an interim waiver; request for comments.
This notification announces receipt of and publishes a petition for waiver and interim waiver from Alliance Laundry Systems (“Alliance”), which seeks a waiver for a specified residential clothes washer basic models from the U.S. Department of Energy (“DOE”) test procedure used for determining the efficiency of clothes washers. DOE also gives notification of an Interim Waiver Order that requires Alliance to test and rate the specified residential clothes washer basic models in accordance with the alternate test procedure set forth in the Interim Waiver Order. DOE solicits comments, data, and information concerning Alliance's petition and its suggested alternate test procedure to inform DOE's final decision on Alliance's waiver request.
Written comments and information are requested and will be accepted on or before May 1, 2023.
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 the
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, Mailstop EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-0729. Email:
DOE is publishing Alliance's petition for waiver in its entirety, pursuant to 10 CFR 430.27(b)(1)(iv).
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. Faxes will not 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).
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 include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42 U.S.C. 6295(s)), and (2) making representations about the efficiency of that product (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the product complies with relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect the energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for clothes washers is contained in the Code of Federal Regulations (“CFR”) at 10 CFR part 430, subpart B, appendix J2,
Under 10 CFR 430.27, any interested person may submit a petition for waiver from DOE's test procedure requirements. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(f)(2). A petitioner must include in its petition any alternate test procedures known to the petitioner to evaluate the performance of the product type in a manner representative of the energy consumption characteristics of the basic model. 10 CFR 430.27(b)(1)(iii). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(f)(2).
As soon as practicable after the granting of any waiver, DOE will publish in the
The waiver process also provides that DOE may grant an interim waiver if it appears likely that the underlying petition for waiver will be granted and/or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a
If the interim waiver test procedure methodology is different than the decision and order test procedure methodology, certification reports to DOE required under 10 CFR 429.12 and any representations must be based on either of the two methodologies until 180 days after the publication date of the decision and order. Thereafter, certification reports and any representations must be based on the decision and order test procedure methodology, unless otherwise specified by DOE. 10 CFR 430.27(i)(1). When DOE amends the test procedure to address the issues presented in a waiver, the waiver or interim waiver will automatically terminate on the date on which use of that test procedure is required to demonstrate compliance. 10 CFR 429.27(h)(3).
On June 1, 2022, DOE published a final rule (“June 2022 Final Rule”) amending DOE's clothes washer test procedures prescribed at 10 CFR part 430, subpart B, appendix J2. 87 FR 33316. Appendix J2 is currently required for use to demonstrate compliance with the currently applicable energy conservation standards. The June 2022 Final Rule also established a new test procedure at 10 CFR part 430, subpart B, appendix J (“appendix J”). Use of appendix J is not required until the compliance date of any energy conservation standards amended based on the test procedure in appendix J, should such amendments be adopted.
Prior to the amendments promulgated by the June 2022 Final Rule, section 1 of appendix J2 defined an automatic WFCS as “a clothes washer water fill control system that does not allow or require the user to determine or select the water fill level, and includes adaptive water fill control systems and fixed water fill control systems.” A fixed WFCS was defined as “a clothes washer automatic water fill control system that automatically terminates the fill when the water reaches an appropriate level in the clothes container;”
In the June 2022 Final Rule, DOE established a more explicit definition of a user-adjustable adaptive WFCS as “a clothes washer fill control system that allows the user to adjust the amount of water that the machine provides, which is based on the size or weight of the clothes load placed in the clothes container.”
On October 28, 2022, DOE received from Alliance a petition for waiver and interim waiver from the test procedure for clothes washers set forth at 10 CFR part 430, subpart B, appendix J2.
In its petition for waiver and interim waiver, Alliance asserts that the change in wording from user-adjustable
As presented in Alliance's petition, the specified basic models have a fixed WFCS and also have a “Deep Fill” button that allows the user to adjust the relative water level for each cycle. (
As discussed in the following section of this document, Alliance requested a waiver that would reinstate testing instructions for clothes washers with a user-adjustable fixed WFCS.
Alliance also requested an interim waiver from the existing DOE test procedure, explaining that if DOE were to deny its application for waiver and interim waiver, its affected models would need to be taken off the market, resulting in the loss of around 40 percent of Alliance's retail top-loading clothes washer sales and accompanying clothes dryers. (
EPCA requires that manufacturers use DOE test procedures when making representations about the energy consumption and energy consumption costs of covered products. (42 U.S.C. 6293(c)) Consistency is important when making representations about the energy efficiency of covered products, including when demonstrating compliance with applicable DOE energy conservation standards. Pursuant to 10 CFR 430.27, and after consideration of public comments on the petition, DOE may establish in a subsequent Decision and Order an alternate test procedure for the basic models addressed by the Interim Waiver Order.
Alliance seeks to use an alternate test procedure to test and rate its clothes washer basic models subject to its petition. The alternate test procedure requested by Alliance would apply the provisions specified in section 3.2.6.2.2 of appendix J2 (as amended by the June 2022 Final Rule) for a user-adjustable adaptive WFCS to Alliance's models with a user-adjustable fixed WFCS.
In its petition, Alliance asserted that testing provisions specified in appendix J2 as amended by the June 2022 Final Rule for a clothes washer with a user-adjustable adaptive WFCS would provide results that most represent real water and energy characteristics of the basic models subject to its petition because these provisions reflect how the end user would interact with these products, which would be the same as for other manufacturers' models that also include a deep fill option and are tested using this method. Additionally, Alliance asserted that this method would require half of the test runs to be run with deep fill off and half with deep fill on, such that the water usage for all possible settings that affect water level in the DOE test cycle would be tested and factored into the final result. (
DOE has reviewed Alliance's application for an interim waiver, the alternate test procedure requested by Alliance, and the control panel and user manual of the basic models subject to the petition as well as control panels and user manuals of other clothes washer models on the market with similar “Deep Fill” type options, but which have a user-adjustable adaptive WFCS.
DOE's review of these materials indicates that the basic models subject to this petition provide the same user interface and implementation of the “Deep Fill” setting as other models with a user-adjustable adaptive WFCS, suggesting that consumer usage of this feature on the Alliance basic models would be similar to the consumer usage of the deep fill feature on other clothes washer models with a user-adjustable adaptive WFCS. Given this comparison, DOE has initially determined that testing the basic models subject to Alliance's petition using the alternate test procedure requested by Alliance would evaluate the performance of these basic models in a manner representative of the basic models' energy and water consumption characteristics.
In summary, DOE has initially determined that the alternate test procedure appears to allow for the accurate measurement of the efficiency of the specified basic models, while alleviating the testing problems cited by Alliance in implementing the DOE test procedure for these basic models. Consequently, DOE has determined that Alliance's petition for waiver likely will be granted. Furthermore, DOE has determined that it is desirable for public policy reasons to grant Alliance immediate relief pending a determination of the petition for waiver.
For the reasons stated, it is
(1) Alliance must test and rate the following residential clothes washer basic models with the alternate test procedure set forth in paragraph (2).
(2) The alternate test procedure for the Alliance basic models identified in paragraph (1) of this Interim Waiver Order is the test procedure for clothes washers prescribed by DOE at 10 CFR part 430, subpart B, appendix J2, using the provisions specified in section 3.2.6.2.2 of appendix J2 for a clothes washer with a user-adjustable adaptive WFCS. All other requirements of appendix J2 and DOE's regulations remain applicable.
(3)
(4) This Interim Waiver Order shall remain in effect according to the provisions of 10 CFR 430.27.
(5) This Interim Waiver Order is issued on the condition that the statements, representations, test data, and documentary materials provided by Alliance are valid. If Alliance makes any modifications to the controls or configurations of a basic model subject to this Interim Waiver Order, such modifications will render the waiver
(6) Issuance of this Interim Waiver Order does not release Alliance from the applicable requirements set forth at 10 CFR part 429.
DOE makes decisions on waivers and interim waivers for only those basic models specifically set out in the petition, not future models that may be manufactured by the petitioner. Alliance may submit a new or amended petition for waiver and request for grant of interim waiver, as appropriate, for additional basic models of clothes washers. Alternatively, if appropriate, Alliance may request that DOE extend the scope of a waiver or an interim waiver to include additional basic models employing the same technology as the basic model(s) set forth in the original petition consistent with 10 CFR 430.27(g).
This document of the Department of Energy was signed on March 28, 2023, by Francisco Alejandro Moreno, Acting 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
On behalf of Alliance Laundry Systems, I would like to submit this petition for waiver and interim waiver for our R16 basic model of clothes washer. Please see the items below for the information required for this petition.
1. Identify the particular basic model(s) for which a waiver is requested.
a. The requested waiver will cover models included in Alliance Laundry Systems basic model R16.
2. Brand names under which the identified basic model(s) will be distributed in commerce.
a. These models are distributed under the Speed Queen and Huebsch brand names.
3. Design characteristic(s) constituting the grounds for the petition.
a. This basic model has a user adjustable “automatic” water fill control system, rather than a user adjustable “adaptive” water fill control system as redefined in the amended J2 procedure which machines must be tested to starting November 28, 2022.
4. Specific requirements sought to be waived.
a. Requesting that the requirement to meet the definition of user adjustable “adaptive” water fill control system as redefined in the amended J2 test procedure effective July 1, 2022 is waived, and allow this basic model to continue being testing as a user adjustable “automatic” water fill control system until the next standards revision.
5. Discuss in detail the need for the requested waiver.
a. The amended test J2 test procedure with effective date of July 1, 2022 would make a small change in wording that would have a profound effect for the Alliance R16 basic model of clothes washer. The Alliance washer has a fixed fill system, and also has a “Deep Fill” button that allows the user to adjust the relative water level for each cycle. This fits within the current test procedure applicable to a “user-adjustable automatic water fill control system.” See current 10 CFR part 430, subpart B, App. J2 (Uniform Test Method for Measuring the Energy Consumption of Automatic and Semi-automatic Clothes Washers), § 3.2.6.2. The definition in the amended version of J2 would make a material change by changing “automatic” to “adaptive” (“user-adjustable adaptive water fill control system”). It appears that this change could exclude the Alliance washer from the new definition “user-adjustable adaptive water fill control system.” For the new Appendix J there is a clear definition (Table III.2) that would move this product into the category of a “manual fill”, but there is not a new definition for this type of WFCS in the amended J2.
6. Identify manufacturers of all other basic models distributed in commerce in the United States and known to the petitioner to incorporate design characteristic(s) similar to those found in the basic model that is the subject of the petition.
a. Samsung, Whirlpool, LG, GE all have models which use a “Deep Fill” modifier button to add more water relative to the default fill level, but most of them would likely still fit the revised definition of user adjustable adaptive WFCS. The user interacts with these products in the same way as they would with our R16 basic model with “Deep Fill” option. However, without testing the competitor's models there is no way to know if they are fixed fill or adaptive fill.
7. Include any alternate test procedures known to the petitioner to evaluate the performance of the product type in a manner representative of the energy and/or water consumption characteristics of the basic model.
a. We believe that the procedure described in the amended J2 for a user adjustable adaptive WFCS would provide results that most represent real water and energy characteristics of this basic model, for the reasons shown below.
i. Reflects how the end user would interact with this product, which is the same as with other manufacturers models that also include a deep fill option and are tested using this method.
ii. Requires half of the test runs to be done with deep fill off and half with it turned on, so water usage for all possible settings that affect water level in the DOE test cycle are being tested and factored into the final result with equal weighting.
iii. The default fill level on this product is a fixed fill, which is still classified as an automatic fill system in the amended J2 procedure, and the deep fill option adjusts the water level relative to the default level. There are no manually selectable small, medium, or large load sizes.
iv. Selecting the deep fill option only changes the water level relative to the
8. Each petition for interim waiver must reference the related petition for waiver.
a. Not applicable.
9. Demonstrate likely success of the petition for waiver and interim waiver, and address what economic hardship and/or competitive disadvantage is likely to result absent a favorable determination on the petition for waiver and interim waiver.
a. The amended J2 test procedure does not have a clear definition for testing a user adjustable fixed WFCS. Based on other similar products on the market that have a Deep Fill option and the fact that our R16 basic model interacts with the user in the same manner, we believe that testing using the procedure defined for user adjustable adaptive WFCS is appropriate for this product. If the waiver were to be denied and our R16 basic model had to be taken off the market, it would result in the loss of about 40% of our retail top load washer sales and the accompanying dryers.
Office of Electricity, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee (EAC). The Federal Advisory Committee Act (FACA) requires that public notice of these meetings be announced in the
Friday April 21, 2023; 3:00-4:00 p.m. EST.
Virtual meeting for members of the public, EAC members, Department of Energy (DOE) representatives, agency liaisons, and EAC support staff. To register to attend virtually, please visit the meeting website:
Jayne Faith, Designated Federal Officer, Office of Electricity, U.S. Department of Energy, Washington, DC 20585; Telephone: (202) 586-2983 or Email:
Office of Environmental Management, Department of Energy.
Notice of open meeting.
This notice announces an in-person/virtual hybrid meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Idaho Cleanup Project (ICP). The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Thursday, April 27, 2023; 9:00 a.m.-12:00 p.m. MDT.
An opportunity for public comment will be at 11:45 a.m. MDT.
These times are subject to change; please contact the ICP Citizens Advisory Board (CAB) Administrator (below) for confirmation of times prior to the meeting.
This meeting will be open to the public in-person at the Residence Inn (address below) or virtually via Zoom. To attend virtually, please contact Mariah Porter, ICP CAB Administrator, by email
Board members, Department of Energy (DOE) representatives, agency liaisons, and Board support staff will participate in-person, following COVID-19 precautionary measures, at: Residence Inn, 635 West Broadway Street, Idaho Falls, ID 83404.
Attendees should check the ICP CAB Administrator (below) for any meeting format changes due to COVID-19 protocols.
Mariah Porter, ICP CAB Administrator, by phone (208) 557-7857 or email
Office of Sustainability and Asset Management, Department of Energy.
Notice of request for comments; correction.
On January 19, 2023, the Office of Sustainability and Asset Management, Department of Energy, published a request for comments in the
Monja Vadnais, Acting Director, Office of Sustainability and Asset Management, U.S. Department of Energy, 1000 Independence Avenue, Washington, DC 20585; Telephone: (202) 287-1563; Email:
In the
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This document of the Department of Energy was signed on March 14, 2023, by Monja Vadnais, Acting Director for the Office of Sustainability and Asset Management, 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
The license for the West Canada Creek Hydroelectric Project No. 2701 was issued for a period ending February 28, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2701 is issued to Erie Boulevard Hydropower, L.P., for a period effective March 1, 2023, through February 29, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before February 29, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that Erie Boulevard Hydropower, L.P. is authorized to continue operation of the West Canada Creek Hydroelectric Project under the terms and conditions of the prior license until the issuance of
Take notice that the Commission has received the following Natural Gas & Oil 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 requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This is a supplemental notice in the above-referenced proceeding of Hobnail Solar, 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 April 17, 2023.
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
The license for the Brainerd Hydroelectric Project No. 2533 was issued for a period ending February 28, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2533 is issued to the City of Brainerd for a period effective March 1, 2023, through February 29, 2024 or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before February 29, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that City of Brainerd is authorized to continue operation of the Brainerd Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
The license for the Sandy Hollow Hydroelectric Project No. 5728 was issued for a period ending February 28, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 5728 is issued to the Sandy Hollow Power Company, Inc. for a period effective March 1, 2023, through February 29, 2024 or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before February 29, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that the Sandy Hollow Power Company, Inc. is authorized to continue operation of the Sandy Hollow Hydroelectric Project under the terms and conditions of the prior license until the issuance of a new license for the project or other disposition under the FPA, whichever comes first.
On March 16, 2023, Nevada Power Company and Sierra Pacific Power Company (collectively, Nevada Power) filed a joint motion to hold the show cause proceeding in the above-captioned docket
Nevada Power states that, in the FPA section 205 filing, it proposes revisions to its tariff to specify the method for allocating network upgrade costs among interconnection customers in a cluster. Nevada Power represents that good cause exists to hold the show cause proceeding in Docket No. EL23-27-000 in abeyance because if the Commission accepts the proposed revisions to Nevada Power's tariff in Docket No. ER23-1406-000, then the basis for the Show Cause Order would be addressed.
Upon consideration, notice is hereby given that Nevada Power's motion is granted and the show cause proceeding in Docket No. EL23-27-000 will be held in abeyance pending the Commission's consideration of the filing in Docket No. ER23-1406-000.
Environmental Protection Agency (EPA).
Notice of meeting.
Pursuant to the provisions of the Federal Advisory Committee Act, notice is hereby given that the next meeting of the Children's Health Protection Advisory Committee (CHPAC) will be held virtually and in-person on May 17 and 18, 2023 at the U.S. Environmental Protection Agency (EPA) Headquarters located at 1200 Pennsylvania Avenue NW, Washington, DC 20460. The CHPAC advises EPA on science, regulations and other issues relating to children's environmental health.
May 17, 2023, from 9 a.m. to 5:30 p.m. and May 18, 2023, from 9 a.m. to 3:30 p.m.
The meeting will take place virtually and in-person. If you want to listen to the meeting or provide comments, please email
Amelia Nguyen, Office of Children's Health Protection, U.S. EPA, MC 1107T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 564-4268, or
The meetings of the CHPAC are open to the public. An agenda will be posted to
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency is planning to submit an information collection request (ICR), “Renewal of the ICR for the Regional Haze Regulations” (EPA ICR No. 2540.04 OMB Control No. 2060-0704) 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 September 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 May 30, 2023.
Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2023-0138, at
Macie Moore, Air Quality Policy Division, Office of Air Quality Planning and Standards, mail code C539-04, U.S. Environmental Protection Agency, Research Triangle Park, NC 27709; 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,
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice; public comment period.
The Environmental Protection Agency (EPA) is announcing a 60-day public comment period for the draft document titled, “Integrated Science Assessment for Lead (External Review Draft)”. This draft document was prepared by the Center for Public Health and Environmental Assessment (CPHEA) within EPA's Office of Research and Development (ORD) as part of the review of the primary (health-based) and secondary (welfare-based) Lead (Pb) National Ambient Air Quality Standards (NAAQS). It represents an update of the 2013 Integrated Science Assessment (ISA) for Lead (Pb) (EPA/600/R-10/075F). The ISA, in conjunction with additional technical and policy assessments, provides the scientific foundation for EPA's decisions on the adequacy of the current NAAQS and the appropriateness of possible alternative standards. EPA is releasing the draft ISA for Pb to seek review by the Clean Air Scientific Advisory Committee (CASAC) and input from the public. The date and location of a public meeting for the CASAC to discuss its review of this document will be specified in a separate
The public comment period begins March 31, 2023 and ends May 30, 2023. Comments must be received on or before May 30, 2023.
The “Integrated Science Assessment for Lead (Pb) (External Review Draft)” will be available on or about March 31, 2023 via the internet on EPA's Integrated Science Assessment Lead page at
For information on the public comment period, contact the ORD Docket at the EPA Headquarters Docket Center; phone: 202-566-1752; facsimile: 202-566-9744; or email:
For technical information, contact Evan Coffman; phone: (919) 541-0567; facsimile: 919-541-5078; or email:
Section 108(a) of the Clean Air Act (the Act) directs the EPA Administrator to identify and list certain air pollutants that “may reasonably be anticipated to endanger public health or welfare” and “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources.” The Act further directs the Administrator to issue air quality criteria for these pollutants. The air quality criteria are to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of such pollutant in the ambient air . . .” Under section 109 of the Act, EPA is then to establish NAAQS for each pollutant for which the Agency has issued air quality criteria. Section 109(d)(1) requires periodic review and, if appropriate, revision of air quality criteria and the NAAQS to reflect advances in scientific knowledge on the effects of the pollutant on public health or welfare. Information on EPA's process for reviewing the air quality criteria and the NAAQS is available at
EPA has established NAAQS for six criteria pollutants. Presently the EPA is reviewing the air quality criteria and NAAQS for Pb. As part of that review, EPA is preparing an updated ISA to reflect the latest scientific knowledge on the public health and welfare effects of Pb exposures, per section 108(a) of the Clean Air Act. When final, the ISA, in conjunction with additional technical and policy assessments, will provide the scientific foundation for EPA's decisions on the adequacy of the current Pb NAAQS and, if appropriate, on potential alternative standards. The CASAC, an independent scientific advisory committee with review and advisory functions that are mandated by section 109(d)(2) of the Clean Air Act, will provide an independent scientific review of the draft ISA.
On July 7, 2020, (85 FR 40641), EPA formally initiated its current review of the air quality criteria for the health and welfare effects of Pb, requesting the submission of recent scientific information on specified topics. Key background information on the air quality criteria for the primary (health-based) and secondary (welfare-based) NAAQS for Pb was summarized in Volume 1 of EPA's “Integrated Review Plan for the Lead National Ambient Air Quality Standards,” and the general approach to developing the Pb ISA was incorporated into Volume 2 of EPA's “Integrated Review Plan for the Lead National Ambient Air Quality Standards,” which was available for public comment (87 FR 13732, March 10, 2022) and was discussed by the CASAC at a publicly accessible teleconference consultation (87 FR 15985, March 21, 2022).
Webinar workshops were held on May 26, June 7, June 22, and June 29, 2022, for invited EPA and external scientific experts to discuss initial Pb ISA draft materials and for the public to have an opportunity to listen in to these discussions (87 FR 27147, May 6, 2022). Input received during these webinar workshops aided in the development of the draft ISA for Pb being released at this time.
The next step is for the CASAC to review the draft ISA and to discuss its review at a public meeting. This meeting will include an opportunity for members of the public to address comments to the CASAC for its consideration. A separate FRN will inform the public of the date and time of the CASAC meeting and of the procedures for public participation.
Submit your materials identified by Docket ID No. EPA-HQ-ORD-2020-0701 by one of the following methods:
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Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, as part of its obligations under the Paperwork Reduction Act of 1995, invites the general public and other Federal agencies to take this opportunity to comment on the renewal of the existing information collection described below (OMB Control No. 3064-0153).
Comments must be submitted on or before May 30, 2023.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Jennifer Jones, Regulatory Counsel, 202-898-6768,
Proposal to renew the following currently approved collection of information:
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There is no change in the method or substance of the collection. The 8,413-hour decrease in burden hours is a result of economic fluctuation, a decrease in the number of entities subject to the information collection, and efforts to align with the other banking agencies' related information collections.
Federal Deposit Insurance Corporation.
Update listing of financial institutions in liquidation.
Notice is hereby given that the Federal Deposit Insurance Corporation (Corporation) has been appointed the sole receiver for the following financial institutions effective as of the Date Closed as indicated in the listing.
This list (as updated from time to time in the
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
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 April 17, 2023.
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Additionally, Daniel J. Kehl, Solon, Iowa, to join the Kehl Family Control Group, to retain voting shares of Savanna-Thomson Investment, Inc., and thereby indirectly acquire voting shares of Savanna-Thomson State Bank.
Board of Governors of the Federal Reserve System.
In the FR Doc. 2023-06174, appearing on page 18139, in the issue of Monday, March 27, 2023, make the following correction:
On page 18139, in the second column, in the
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 continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Validated Follow-up Interview of Clinicians on Outpatient Antibiotic Stewardship Interventions. This collection aims to perform an interview of outpatient clinicians regarding the acceptability and perceived clinician-level barriers associated with our year-long implementation of interventions designed around the Core Elements of Outpatient Antibiotic Stewardship.
CDC must receive written comments on or before May 30, 2023.
You may submit comments, identified by Docket No. CDC-2023-0021 by either of the following methods:
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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.
Validated Interview and Survey of Outpatient Providers on Antibiotic Stewardship Interventions (OMB Control No. 0920-1308)—Reinstatement—National Center for Emerging Zoonotic and Infectious Disease (NCEZID), Centers for Disease Control and Prevention (CDC).
Inappropriate antibiotic prescribing is a major driver of antibiotic resistance which is an urgent national and global health threat. Additionally, inappropriate antibiotic prescribing contributes to avoidable adverse drug events that cause substantial harms to patients. Most antibiotic prescribing originates in traditional outpatient settings such as physician offices and emergency departments, and at least 30% of these prescriptions are completely unnecessary.
Over the past decade there has been rapid growth in non-traditional outpatient settings including Urgent Care clinics. Recent evidence shows that when compared to traditional office settings, inappropriate antibiotic prescribing is substantially higher in Urgent Care clinics making this an important priority for antibiotic stewardship. The design, development, and evaluation of durable stewardship interventions addressing the unique setting of Urgent Care clinics is an important area of unmet need. This data collection will assess knowledge, attitudes, and practices related to antibiotic prescribing among clinicians after implementation of a year-long Urgent Care stewardship initiative.
CDC requests OMB approval for an estimated 62 annualized burden hours. There is no cost to respondents other than their time to participate.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “Awardee Lead Profile Assessment (ALPA)” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on December 20, 2022, to obtain comments from the public and affected agencies. CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed 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;
(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,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570. Comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Awardee Lead Profile Assessment (ALPA) (OMB Control No. 0920-1215, Exp. 03/31/2024)—Revision—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) is requesting Paperwork Reduction Act (PRA) clearance for a three-year revised Information Collection Request (ICR) titled “Awardee Lead Profile Assessment (ALPA)” (OMB Control No. 0920-1215; Exp. 03/31/2024). The goal of this ICR is to build on the CDC's existing childhood lead poisoning prevention program. CDC requires that ongoing and new CDC Childhood Lead Poisoning Prevention Programs (CLPPPs), including the FY21 “Childhood Lead Poisoning Prevention and Surveillance of Blood Lead Levels in Children” (CDC-RFA-EH21-2102), complete the ALPA annually. This annual information collection will be used to identify jurisdictional legal frameworks governing CDC-funded CLPPPs in the United States and strategies for implementing childhood lead poisoning prevention activities. CDC can use this information to inform guidance, resource development, and technical assistance activities in support of the ultimate goal, which is eliminating lead exposure in children. The dissemination of these ALPA results will ensure that both funded and non-funded jurisdictions are able to: (1) identify policies and other factors that support or hinder childhood lead poisoning prevention efforts; (2) understand what strategies are being used by funded public health agencies to implement childhood lead poisoning prevention activities; and (3) use this knowledge to develop and apply similar strategies to support the national agenda to eliminate childhood lead poisoning. This program management information collection has been revised in several ways, including the addition of new answer options and questions to understand usage of the updated blood lead reference value (BLRV).
CDC will use one data collection mode, a web survey. A change in the mode of collection will not affect the total time burden requested as the time per response is the same for either mode, and the time to take the survey has remained consistent from 2021 estimates (47 minutes per response) despite revisions to the survey. This time estimate per response is based on pilot tests of the revised survey among eight respondents, and includes the time needed to review the ALPA Training Manual.
In total, the annual number of respondents remains unchanged at 75, and the annual time burden requested remains at 59 hours. There are no costs to respondents other than their time. The respondents are participating in this survey as a program requirement.
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 information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Reporting of the Essentials for Childhood (EfC): Preventing Adverse Childhood Experiences through Data to Action Program. This data collection will help to ensure that associated programs are
CDC must receive written comments on or before May 30, 2023.
You may submit comments, identified by Docket No. CDC-2023-0022 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.
Reporting of the Essentials for Childhood (EfC): Preventing Adverse Childhood Experiences through Data to Action Program—New—National Center for Injury Prevention and Control (NCIPC), Centers for Disease Control and Prevention (CDC).
The purpose of this information collection effort is to collect Essentials for Childhood (EfC) program recipient data related to surveillance, implementation, program evaluation, and performance monitoring. This data collection is necessary to ensure that programs are progressing toward achievement of their stated goals and objectives, as well as consistently demonstrating efficient and appropriate use of federal funds. CDC will use the information collected to further understand the facilitators, barriers, and critical factors to implementing specific violence prevention strategies and conducting related program evaluation activities. Data collected will also be used to inform CDC's training and technical assistance, program improvement, and the development of future funding opportunities.
Data collection is designed to address the following key program evaluation questions:
• To what extent have recipients accomplished the short-term and intermediate-term outcomes outlined in the Logic Model?
• To what extent do recipients effectively implement ACEs prevention strategies during the period of performance?
• To what extent have recipients leveraged multi-sector partnerships and resources among state agencies (additional funding at the local level) and other sectors to prevent ACEs, including forming sustainable systems and partnerships, and realigning/focusing/mobilizing resources to prevent ACEs?
• In what ways has the recipient built or enhanced their state-level surveillance system to monitor ACEs, PCEs, and social determinants of health?
• How has the recipient integrated and addressed racial and health inequities and social determinants of health in preventing ACEs?
• To what extent have recipients enhanced their statewide action plan to implement complementary ACEs prevention strategies (additional funding for implementation at the local level)?
• To what extent have funded recipients enhanced their ability to use ACEs and PCEs surveillance and evaluation data to inform prevention strategy allocation?
• To what extent have recipients enhanced their ability to disseminate and use data to inform partner, policy, or other action?
• To what extent have recipients seen a sustainable increase in capacity and activities related to routine monitoring of ACEs and PCEs data among youth?
• To what extent have recipients seen a sustainable increase in capacity and activities related to routine monitoring of near real-time surveillance to monitor indicators of ACEs?
• To what extent have recipients demonstrated ability to link ACEs and PCEs data to those on the social determinants of health, and utilize these data to inform prevention strategies? (if applicable)
• What is the reach/exposure to the ACEs prevention program efforts?
• Are ACEs prevention strategies reaching populations at highest risk for ACEs?
• To what extent have recipients demonstrated use of surveillance and evaluation data to inform prevention strategy allocation and implementation to improve health equity?
• What has been the reach/exposure of ACEs and PCEs data dissemination efforts?
Information will be collected annually from recipients through the DVP Partners Portal, a web-based data collection system. The DVP Partners Portal allows recipients to fulfill their annual reporting obligations efficiently by employing user-friendly, easily accessible web-based instruments to collect necessary information for both progress reports and continuation applications. Because information from previous reports will be carried over and pre-populated for the next annual reporting, recipients will only need to enter changes, provide progress updates, and add any new information after the first year of reporting, which will help to reduce recipient burden.
CDC requests OMB approval for an estimated 552 annual burden hours. There are no costs to respondents other than their time to participate.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance for industry entitled “Research Involving Children as Subjects and Not Otherwise Approvable by an IRB: Process for Referrals to FDA and OHRP.” This guidance is intended to assist institutional review boards (IRBs), institutions, investigators, and sponsors in understanding the processes used for review of research involving children as subjects that is not otherwise approvable by an IRB and has been referred to FDA, the Office for Human Research Protections (OHRP), or both, for review. When final, this guidance will replace the final guidance issued by FDA in December 2006 entitled, “Guidance for Clinical Investigators, Institutional Review Boards and Sponsors: Process for Handing Referrals to FDA Under 21 CFR 50.54: Additional Safeguards for Children in Clinical Investigations” and the guidance issued by the OHRP entitled “Children as Research Subjects and the HHS `407' Process,” issued on May 26, 2005. This draft guidance is not final nor is it in effect at this time.
Submit either electronic or written comments on the draft guidance by May 30, 2023 to ensure that the Agency and OHRP consider your comment on this draft guidance before they begin work on the final version of the guidance. Submit electronic or written comments on the proposed collection of information in the draft guidance by May 30, 2023.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of this draft guidance to the Office of Pediatric Therapeutics, Office of the Commissioner, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5126, Silver Spring, MD 20993-0002; or Office for Human Research Protections, Division of Policy and Assurances, 1101 Wootton Pkwy., Suite 200, Rockville, MD 20852. Send one self-addressed adhesive label to assist that office in processing your request or include a Fax number to which the draft guidance may be sent. See the
FDA and the OHRP are announcing the availability of a draft guidance for IRBs, institutions, investigators, and sponsors entitled “Research Involving Children as Subjects and Not Otherwise Approvable by an IRB: Process for Referrals to FDA and OHRP, Guidance for Institutional Review Boards, Investigators, and Sponsors.” This guidance is intended to assist IRBs, institutions, investigators, and sponsors in understanding the processes for review of research involving children as subjects that is not otherwise approvable by an IRB and has been referred to FDA under § 50.54 (21 CFR 50.54), OHRP under 45 CFR 46.407, or both, for review.
The Department of Health and Human Services (HHS) issued 45 CFR part 46, subpart D, “Additional Protections for Children Involved as Subjects in Research” as a final rule on March 8, 1983 (48 FR 9814). FDA issued part 50, subpart D (21 CFR part 50, subpart D), “Additional Safeguards for Children in Clinical Investigations of Food and Drug Administration-Regulated Products,” as a final rule on February 26, 2013 (78 FR 12937). These regulations, hereinafter referred to collectively as subpart D, are similar, with some minor differences. (For a full discussion of the differences between FDA and HHS human subject protection regulations, see 78 FR 12937-12947.)
FDA's part 50, subpart D regulations apply to clinical investigations regulated by FDA as described in 21 CFR 50.1(a). HHS regulations apply to all research involving human subjects conducted or supported by HHS in accordance with 45 CFR 46.101(a). FDA-regulated clinical investigations conducted or supported by HHS are subject to both sets of regulations. As a result, many sponsors, investigators, and IRBs need to be familiar and comply with both FDA's and HHS's regulations.
The draft guidance describes an overview of the review process as it relates to FDA referral and review (§ 50.54), OHRP referral and review (45 CFR 46.407), joint FDA and OHRP review, multisite research, and FDA and OHRP review of similar research. This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on research involving children as subjects not otherwise approvable by an IRB and the process for referrals to FDA and OHRP. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports FDA regulations governing requirements for informed consent and IRBs that are intended to protect the rights and safety of human subjects involved in FDA-regulated clinical investigations (parts 50 and 56 (21 CFR parts 50 and 56)). A “clinical investigation” is any experiment that involves a test article and one or more human subjects and is subject to requirements for prior submission to FDA under section 505(i) or 520(g) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(i) or 360j(g)), or is not subject to requirements for prior submission to FDA under these sections of the FD&C Act, but the results of which are intended to be submitted later to, or held for inspection by, FDA as part of an application for a research or marketing permit (§ 50.3).
Under § 50.54, FDA will accept IRB referrals of clinical investigations involving children as subjects that are not otherwise approvable by an IRB under part 50 subpart D. The collections of information in parts 50 and 56 are currently approved under OMB control number 0910-0130; however, the submission of records to FDA as part of an IRB referral under § 50.54, as recommended in the draft guidance document, is not called for in the regulations themselves. We are therefore revising the information collection to include submissions of records to the Agency that may occur under § 50.54. Based on a review of Agency data regarding the frequency of IRB referrals under § 50.54, we expect that fewer than one such submission would be made annually. The records that the draft guidance recommends be sent to FDA as part of an IRB's referral are records that are kept by IRBs in the ordinary course of their business, and where necessary, information collections related to the creation and retention of these documents are already approved under OMB control number 0910-0130. We assume that no more than 1 hour would be needed to complete the task of transmitting this existing information to FDA in accordance with the draft guidance recommendations. We invite comment on our estimate and assumptions.
This draft guidance also refers to previously approved collections of information by HHS' OHRP under OMB control numbers 0990-0481 and 0990-0260. Specifically, on February 14, 2022, OMB approved the collection of information identified with the OMB control number 0990-0481 without change. The approved collection of information consists of a requirement that IRB records be submitted when an IRB or its institution request an HHS consultation process for proposed research involving, respectively: (1) pregnant women, human fetuses or neonates; (2) prisoners; or (3) children, as subjects that are not otherwise approvable by an IRB.
This draft guidance also refers to previously approved FDA collections of information. The collections of information in 21 CFR part 312 have been approved under OMB control number 0910-0014, the collections of information in 21 CFR part 812 have been approved under OMB control number 0910-0078.
Persons with access to the internet may obtain an electronic version of the draft guidance at either
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry (GFI) #281 entitled “Infectious Otitis Externa Drugs for Topical Use in Dogs.” This draft guidance provides recommendations to help sponsors complete the effectiveness, target animal safety, and labeling technical sections of a new animal drug application (NADA) for infectious otitis externa drugs for topical use in dogs.
Submit either electronic or written comments on the draft guidance by May 30, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Lea Cranford, Center for Veterinary Medicine (HFV-118), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240-402-0615,
FDA is announcing the availability of a draft GFI #281 entitled “Infectious Otitis Externa Drugs for Topical Use in Dogs.” This draft guidance provides recommendations to help sponsors complete the effectiveness, target animal safety, and labeling technical sections of an NADA for infectious otitis externa drugs for topical use in dogs.
This level 1 draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Infectious Otitis Externa Drugs for Topical Use in Dogs.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in 21 CFR part 514 have been approved under OMB control number 0910-0032.
Persons with access to the internet may obtain the draft guidance at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995 (PRA).
Submit written comments (including recommendations) on the collection of information by May 1, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports FDA implementation of Agency regulations and associated guidance. Section 502(n) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 352(n)) requires that manufacturers, packers, and distributors (firms) who advertise prescription human and animal drugs, including biological products for humans, disclose in advertisements certain information about the advertised product's uses and risks. FDA's prescription drug advertising regulations in § 202.1 (21 CFR 202.1) describe requirements and standards for print and broadcast advertisements. Section 202.1 applies to advertisements published in journals, magazines, other periodicals, and newspapers, and advertisements broadcast through media such as radio, television, and telephone communication systems. Print advertisements must include a brief summary of each of the risk concepts from the product's approved package labeling (§ 202.1(e)(1)). Advertisements
We are revising the information collection to include recommendations found in Agency guidance. The guidance document entitled, “Presenting Quantitative Efficacy and Risk Information in Direct-to-Consumer [DTC] Promotional Labeling and Advertisements,” provides content and format recommendations for DTC promotional labeling and advertisements (promotional communications) that present quantitative efficacy and risk information. The guidance document was developed consistent with Agency good guidance practices regulations in 21 CFR 10.115, which provide for comment at any time. The draft guidance document, issued on October 17, 2018, is available at
The guidance document recommends specific content elements pertaining to the presentation of quantitative efficacy and risk information in DTC promotional communications. The guidance also discusses formatting considerations related to the use of visual aids that display quantitative efficacy or risk information in DTC promotional communications. The guidance document explains that the information collection applies to the third-party disclosure of information pertaining to FDA-regulated products that contain quantitative efficacy or risk information and discusses the Agency's current thinking with regard to this topic.
In the
We estimate the burden of this collection of information as follows:
According to available data, approximately 465 firms prepare 49,000 FDA-regulated DTC promotional communications annually. Of these communications, we assume 40 percent contain a disclosure of quantitative efficacy or risk information. Based on this information, we calculate that firms each disseminate 43 DTC promotional communications that contain a disclosure of quantitative efficacy or risk information annually. Based on our experience reviewing FDA-regulated promotional communications for drugs, we estimate respondents spend an average of 2 hours to prepare a disclosure as recommended in the guidance. We therefore estimate 19,995 disclosures and a burden of 39,990 hours annually.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice; correction.
HRSA published a notice in the
Pita Gomez, Principal Staff Liaison, Division of Injury Compensation Programs, HRSA, 5600 Fishers Lane, 08N186B, Rockville, Maryland 20857; (800) 338-2382; or
In the
• March 1, 2023, 10:00 a.m. Eastern Time (ET)-4:00 p.m. ET;
• March 2, 2023, 10:00 a.m. ET-4:00 p.m. ET;
• September 7, 2023, 10:00 a.m. ET-4:00 p.m. ET;
• September 8, 2023, 10:00 a.m. ET-4:00 p.m. ET.”
National Institutes of Health, HHS.
Notice.
This notice announces the next meeting of the National Toxicology Program (NTP) Board of Scientific Counselors (BSC). The BSC, a federally chartered, external advisory group composed of scientists from the public and private sectors, will review and provide advice on programmatic activities. This meeting is a virtual meeting and is open to the public. Written comments will be accepted and registration is required to present oral comments.
Dr. Milene Brownlow, Designated Federal Officer for the BSC, Office of Policy, Review, and Outreach, Division of Translational Toxicology, NIEHS. Phone: 984-287-3364, Email:
The NTP conducted a systematic review to evaluate the neurobehavioral health effects from exposure to fluoride during development and prepared a Draft State of the Science Monograph and a Draft Meta-Analysis Manuscript. Both draft documents were then reviewed internally by various Department of Health and Human Services (HHS) entities and, additionally, the Draft State of the Science Monograph underwent external peer review by five scientific experts. Subsequently, the NTP Director decided to seek additional review of both documents from the NTP BSC. In 2022, the NTP Director and the NTP BSC Chair jointly made the decision to convene an independent working group of subject-matter experts to assist the BSC in reviewing the input on the Draft State of the Science Monograph and Draft Meta-Analysis Manuscript along with NTP authors' responses to the comments. The BSC Working Group has prepared a report with its recommendations on whether the authors sufficiently addressed internal and external scientific comments. The preliminary agenda topic for the meeting on May 4, 2023, is BSC's deliberation on the BSC Working Group's report.
The preliminary agenda, working group report, roster of BSC members, background materials, public comments, and any additional information, when available, will be posted on the BSC meeting web page (
The deadline for submission of written comments is April 28, 2023. Written public comments should be submitted through the meeting web page. Persons submitting written comments should include name, affiliation, mailing address, phone, email, and sponsoring organization (if any). Written comments received in response to this notice will be posted on the NTP web page, and the submitter will be identified by name, affiliation, and sponsoring organization (if any).
If possible, oral public commenters should send a copy of their slides and/or statement or talking points to
The BSC is governed by the provisions of the Federal Advisory Committee Act, as amended (5 U.S.C. ch. 10), which sets forth standards for the formation and use of advisory committees.
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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, 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 contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, Department of Homeland Security.
60-Day notice of renewal and request for comments.
The Federal Emergency Management Agency (FEMA), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public to take this opportunity to comment on an extension, without change, of a currently approved information collection. In accordance with the Paperwork Reduction Act of 1995, this notice seeks comments concerning FEMA's Individual and Community Preparedness Division's (ICPD) efforts to enable individuals, organizations, or other groups to register with FEMA and to take part in FEMA's preparedness mission by connecting with individuals, organizations, and communities with research and tools to build and sustain capabilities to prepare for any disaster or emergency.
Comments must be submitted on or before May 30, 2023.
To avoid duplicate submissions to the docket, please submit comments at
All submissions received must include the agency name and Docket ID. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
Andrew Burrows, Preparedness Behavior Change Branch Chief, Individual and Community Preparedness Division, National Preparedness Directorate, FEMA, DHS, 400 C St. SW, Washington, DC 20024, at 202-716-0527 or
As part of 6 U.S.C. 313-314, and section 611 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, (codified at 42 U.S.C. 5196), the mission of the Federal Emergency Management Agency (FEMA) is to reduce the loss of life and property and protect the Nation from all hazards by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation. FEMA's Individual and Community Preparedness Division (ICPD) supports the FEMA Mission by connecting individuals, organizations, and communities with research and tools to build and sustain capabilities to prepare
This collection will allow ICPD to gather the following information from the public via web form(s):
Comments may be submitted as indicated in the
Department of Homeland Security Federal Emergency Management Agency.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, the Department of Homeland Security (DHS) proposes to update and reissue a current system of records titled, “Department of Homeland Security/Federal Emergency Management Agency (FEMA)-012 Suspicious Activity Reporting System of Records.” This system of records allows DHS/FEMA to collect, maintain, and retrieve records on individuals reported as being involved in suspicious activities, individuals who report suspicious activities, and individuals charged with the analysis and appropriate handling of suspicious activity reports. DHS/FEMA is updating this system of records to (1) revise contact and administrative information associated with this system of records, (2) add to the categories of records collected, (3) modify routine uses, and (4) other non-substantive changes. This updated system will be included in DHS's inventory of record systems.
Submit comments on or before May 1, 2023. This modified system will be effective upon publication. New or modified routine uses will be effective May 1, 2023.
You may submit comments, identified by docket number DHS-2022-0042 by one of the following methods:
•
•
•
For general questions please contact: Tammi
In accordance with the Privacy Act of 1974, DHS/FEMA proposes to update and reissue a current DHS/FEMA system of records titled, “DHS/FEMA-012 Suspicious Activity Reporting System of Records.” FEMA's mission is to “support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.” In support of this mission, and to ensure the safety of its citizens and first responders, FEMA collects, maintains, and retrieves records of individuals reported as being involved in suspicious activities and of individuals who report suspicious activities. FEMA's Office of the Chief Security Officer (OCSO), Fraud Investigations and Inspections Division (FIID) manages this process. Investigators and Analysts are assigned to complete the analysis of suspicious activity reports; they are also responsible for the appropriate handling of such reports.
FEMA Suspicious Activity Reports may be shared with federal, state, local, and tribal jurisdictions with responsibility for investigating suspicious activities within their jurisdictions. FEMA Suspicious Activity Reports that have a nexus to terrorism or hazards to homeland security, as determined by FEMA FIID Investigators or Analysts, and require immediate attention are reported to the police or law enforcement agency of jurisdiction via telephone and uploaded into the Federal Bureau of Investigation's (FBI) eGuardian system by FEMA FIID Investigators or Analysts in coordination with the agency that reported the information. All investigators and analysts who submit reports to the eGuardian system are trained in the DHS Nationwide Suspicious Activity Reports Initiative, per DHS policy.
FEMA is updating this System of Records Notice to reflect the following changes: (1) the contact information for general questions and administrative information has been updated, as well as the Authority for Maintenance of the System section; (2) the categories of records have been updated to clarify the information collected in suspicious activity reports; and (3) Routine Use E has been modified and Routine Use F has been added to conform to Office of Management and Budget (OMB) Memorandum M-17-12 regarding breach notification and investigation.
Furthermore, non-substantive changes to simplify the formatting and text of the previously published notice and the references to FEMA's Office of Chief Security Officer (OCSO) have been updated to identify FEMA's Fraud Investigations and Inspections Division as the specific office responsible for suspicious activity reporting.
Consistent with DHS's information sharing mission, information stored in the DHS/FEMA-012 Suspicious Activity Reporting System of Records may be shared with other DHS components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, information may be shared with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.
This modified system will be included in DHS's inventory of record systems.
The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. The Privacy Act defines “individual” to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides covered persons with a statutory right to make requests for access and amendment to covered records, as defined by the JRA, and judicial review of denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.
Below is the description of the DHS/FEMA-12 Suspicious Activity Reporting System of Records.
In accordance with 5 U.S.C. 552a(r), DHS has provided a report of this system of records to the Office of Management and Budget, and to Congress.
Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA)-012 Suspicious Activity Reporting System of Records.
For official use only (FOUO) and law enforcement sensitive (LES). This system does not contain classified information.
Records are maintained on a FEMA Exchange Server that is access-controlled and under the management and control of the Federal Emergency Management Agency (FEMA) Office of Chief Information Officer at FEMA Headquarters, 500 C Street SW, Washington, DC 20472.
Office of the Chief Security Officer, Fraud Investigations and Inspections Division, 500 C Street SW, Washington, DC 20472.
42 U.S.C. 5196(d); Executive Orders 12333 and 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. 314 of the Homeland Security Act of 2002, as amended; the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; and the National Security Act of 1947, as amended.
The purpose of this system is to collect, investigate, analyze, and report suspicious activities to the police or law enforcement agency of jurisdiction and upload the Suspicious Activity Reports into the FEMA Exchange Server in coordination with the agency that reported the information.
Categories of individuals covered by the system include individuals reported as being involved in suspicious activities, individuals who report suspicious activities, and Fraud Investigations and Inspections Division Investigators and Analysts assigned to analyze and appropriately handle suspicious activity reports.
The following fields related to individuals may be maintained in this system:
• Report of the suspicious activity (
• Case/incident number;
• Name (first, middle, and last);
• Address (number, street, apartment, city, and state);
• Age;
• Sex;
• Race for subject description;
• Signature (investigator, analyst, or law enforcement officer (LEO));
• Jurisdiction over the suspected activity;
• Injury code (a dropdown that lists the codes in question (0-None, 1-Refused, 2-First Aid, 3-Hospital, 4-Deceased) (if applicable));
• Telephone numbers (home, business, or cell);
• Other contact information (
• Property information (
Records are obtained from individuals reported as being involved in suspicious activities, individuals who report suspicious activities, Fraud Investigations and Inspections Division Investigators and Analysts, commercially available systems (LexisNexis) and other federal, state, and local law enforcement agencies.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be disclosed outside DHS as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
A. To the Department of Justice (DOJ), including Offices of the U.S. Attorneys, or to another federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when it is relevant and necessary to the litigation and one of the following is a party to the litigation or has an interest in such litigation:
1. DHS or any component thereof;
2. Any employee or former employee of DHS in their official capacity;
3. Any employee or former employee of DHS in their individual capacity when DOJ or DHS has agreed to represent the employee; or
4. The United States or any agency thereof.
B. To a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of the individual to whom the record pertains.
C. To the National Archives and Records Administration (NARA) or General Services Administration pursuant to records management inspections being conducted under the authority of 44 U.S.C. 2904 and 2906.
D. To an agency, organization, or individual for the purpose of performing audit or oversight operations as authorized by law, but only such information as is necessary and relevant to such audit or oversight function.
E. To appropriate agencies, entities, and persons when (1) DHS suspects or has confirmed that there has been a breach of the system of records; (2) DHS has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, DHS (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with DHS's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
F. To another federal agency or federal entity, when DHS determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the federal government, or national security, resulting from a suspected or confirmed breach.
G. To an appropriate federal, state, tribal, local, international, or foreign law enforcement agency or other appropriate authority charged with investigating or prosecuting a violation or enforcing or implementing a law, rule, regulation, or order, when a record, either on its face or in conjunction with other information, indicates a violation or potential violation of law, which includes criminal, civil, or regulatory violations and such disclosure is proper and consistent with the official duties of the person making the disclosure.
H. To contractors and their agents, grantees, experts, consultants, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for DHS, when necessary to accomplish an agency function related to this system of records. Individuals provided information under this routine use are subject to the same Privacy Act requirements and limitations on disclosure as are applicable to DHS officers and employees.
I. To an appropriate federal, state, tribal, local, international counterterrorism agencies when DHS becomes aware of an indication of a threat or potential threat to security, and when such use is to assist in counterterrorism efforts.
J. To an organization or individual in either the public or private sector, either foreign or domestic, when there is a reason to believe that the recipient is or could become the target of a particular terrorist activity or conspiracy, to the extent the information is relevant to the protection of life, property, or other vital interests of a data subject and disclosure is proper and consistent with the official duties of the person making the disclosure.
K. To the news media and the public, with the approval of the Chief Privacy Officer in consultation with counsel, when there exists a legitimate public interest in the disclosure of the information, when disclosure is necessary to preserve confidence in the integrity of DHS, or is necessary to demonstrate the accountability of DHS's officers, employees, or individuals covered by the system, except to the extent it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
DHS/FEMA stores records in this system electronically on the access-controlled FEMA Exchange Server.
DHS/FEMA retrieves records by case/incident number, name, address, and/or date.
Pursuant to National Archives and Records Administration Schedule Number N1-311-99-6, Items 1, 2, and 3, files containing information or allegations that are of an investigative nature but do not relate to a specific investigation are destroyed after five (5) years. Investigative case files that involve allegations made against senior agency officials, attract significant attention in the media, attract congressional attention, result in substantive changes in agency policies and procedures, or are cited in the
DHS/FEMA safeguards records in this system in accordance with applicable rules and policies, including all applicable DHS systems security and access policies. DHS/FEMA imposes strict controls to minimize the risk of compromising the information that is being stored. Access to the computer system containing the records in this system is limited to those who have a need to know the information for the performance of their official duties and who have appropriate clearances or permissions.
The Secretary of Homeland Security has exempted this system from the notification, access, and amendment procedures of the Privacy Act because it is a law enforcement system. However, DHS/FEMA will consider individual requests to determine whether information may be released. Thus, individuals seeking access to and notification of any record contained in this system of records, or seeking to contest its content, may submit a request in writing to the Chief Privacy Officer and FEMA's Freedom of Information Act (FOIA) Officer whose contact information can be found at
When an individual is seeking records about themself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5. The individual must first verify their identity, meaning that the individual must provide their full name, current address, and date and place of birth. The individual must sign the request, and the individual's signature must either be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization. An individual may obtain more information about this process at
• Explain why they believe the Department would have information being requested;
• Identify which component(s) of the Department they believe may have the information;
• Specify when the individual believes the records would have been created; and
• Provide any other information that will help the DHS staff determine which DHS component agency may have responsive records.
If the request is seeking records pertaining to another living individual, the request must include an authorization from the individual whose record is being requested, authorizing the release to the requester.
Without the above information, the component(s) may not be able to conduct an effective search, and the individual's request may be denied due to lack of specificity or lack of compliance with applicable regulations.
For records covered by the Privacy Act or covered Judicial Redress Act (JRA) records, individuals may make a request for amendment or correction of a Department record about the individual by writing directly to the Department component that maintains the record, unless the record is not subject to amendment or correction. The request should identify each particular record in question, state the amendment or correction desired, and state why the individual believes that the record is not accurate, relevant, timely, or complete. The individual may submit any documentation that would be helpful. If the individual believes that the same record is in more than one system of records, the request should state that and be addressed to each component that maintains a system of records containing the record. When an individual is making a request for amendment or correction of Departmental records about themself from this system of records or any other Departmental system of records, the individual's request must conform with the Privacy Act regulations set forth in 6 CFR part 5.
See “Record Access Procedures” above.
The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the following provisions of the Privacy Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f).
79 FR 40124 (July 11, 2014).
Fish and Wildlife Service, Interior.
Notice of availability; final environmental impact statement/environmental impact report.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of a final environmental impact statement/environmental impact report (FEIS/EIR) for the Tijuana Estuary Tidal Restoration Program II Phase I project. The FEIS/EIR was prepared jointly by the Service and the California Department of Parks and Recreation to satisfy the requirements of the National Environmental Policy Act (NEPA) and California Environmental Quality Act, respectively. The U.S. Army Corps of Engineers is participating in the NEPA process as a cooperating agency. The FEIS/EIR evaluates the environmental consequences of restoring 82 to 87 acres of native coastal wetlands and uplands within the Tijuana River National Estuarine Research Reserve on portions of both the Tijuana Slough National Wildlife Refuge and Border Field State Park, in San Diego County, California.
The Service will issue a record of decision no sooner than 30 days after publication of this notice of availability of the FEIS/EIR in the
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○ Tijuana Estuary Visitor Center, 301 Caspian Way, Imperial Beach, CA 91932 (closed Mondays and Tuesdays); telephone 619-575-3613.
Victoria Touchstone, Conservation Planner, at 760-431-9440, extension 273 (phone), or
The project site, which encompasses approximately 90 acres (ac), is located within the southern arm of the Tijuana Estuary, just to the east of the Pacific Ocean, in southwestern San Diego County, California. The project site includes portions of both the Tijuana Slough National Wildlife Refuge and Border Field State Park and is located entirely within the Tijuana River National Estuarine Research Reserve.
The Tijuana Estuary, located in the southwest corner of the United States in San Diego County, California, occurs at the western terminus of the Tijuana River, which drains an approximately 1,700-square-mile watershed, a large portion of which is located within Mexico. Despite recent changes to the upstream watershed, including an increase in the flow of contaminated freshwater inputs and sedimentation, the Tijuana Estuary remains the largest and most intact coastal wetland in the region, supporting habitat for resident and migratory wildlife and native plants, including many sensitive, threatened, and endangered species.
It is estimated that in the 1800s, Tijuana Estuary included over 2,500 ac of estuarine wetland and high marsh. Since then, the estuary has experienced an approximately 50 percent decrease in subtidal and mudflat habitat and a 42 percent decrease in salt marsh. In addition, extensive loss of tidal prism (the volume of water coming and going with the tides) has occurred. This degradation in the southern arm of Tijuana Estuary served as the primary motivation for the initiation of Tijuana Estuary Tidal Restoration Program (TETRP), an extensive restoration proposal developed in the early 1990s.
The TETRP proposal included a multi-phased 495-ac restoration project in the estuary's southern arm, along with a proposed Model Marsh and Oneonta Tidal Linkage project (both of which have been implemented). The final environmental impact statement/environmental impact report (FEIR/EIS) for the original TETRP proposal was completed in 1991. Based on updated research and analysis, the TETRP restoration proposals were refined in 2008 as part of the Tijuana Estuary Friendship Marsh Restoration Feasibility and Design Study. The TETRP II Phase I project, which proposes the restoration of 82 to 87 acres of coastal wetlands and associated native coastal upland vegetation, is the first phase of this 2008 multi-phased restoration project.
In compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Common features include restoration of predominantly disturbed portions of the southern arm of Tijuana Estuary to tidal wetlands, tidal channel enhancements, and new intertidal channel connections to restored habitat areas and the existing Model Marsh, incorporation of transitional habitat areas into the restoration design, and river mouth excavation, as needed, to ensure continued tidal exchange within the estuary. Additionally, both action alternatives propose the beneficial reuse of suitable excavated material for beach nourishment, development and maintenance of adjacent coastal barrier dunes, and/or restoration of the Nelson Sloan Quarry, located approximately 3 miles to the east within the Tijuana River Valley. Excavated material not suitable for these purposes would be transported off site to the Otay Landfill or another suitable disposal site.
Pursuant to the Council on Environmental Quality (CEQ) NEPA Regulations (40 CFR 1506.11), the U.S. Environmental Protection Agency (EPA) shall publish a notice of all EISs in the
Pursuant to section 309 of the Clean Air Act (CAA; 42 U.S.C. 7401
In addition to this notice of availability, the EPA will also publish a notice in the
The EPA compiles a repository (EIS database) for EISs prepared by Federal agencies. The EIS database provides information about EISs prepared by Federal agencies, as well as EPA's comments concerning the EISs. You may search for EPA comments on EISs, along with EISs themselves, at
On May 27, 2021, the Service published a notice of intent in the
We provide this notice in accordance with the requirements of National Environmental Policy Act and its implementing regulations (40 CFR 1503.1 and 1506.6).
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, invite the public to comment on applications to conduct certain activities with foreign species that are listed as endangered under the Endangered Species Act (ESA). With some exceptions, the ESA prohibits activities with listed species unless Federal authorization is issued that allows such activities. The ESA also requires that we invite public comment before issuing permits for any activity otherwise prohibited by the ESA with respect to any endangered species.
We must receive comments by May 1, 2023.
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For more information, see Public Comment Procedures under
Timothy MacDonald, by phone at 703-358-2185 or via email at
We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
You may submit your comments and materials by one of the methods in
When submitting comments, please specify the name of the applicant and the permit number at the beginning of your comment. Provide sufficient information to allow us to authenticate any scientific or commercial data you include. The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) those that include citations to, and analyses of, the applicable laws and regulations.
You may view and comment on others' public comments at
If you submit a comment at
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(c) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
We invite comments on the following applications.
The applicant requests authorization to import up to 60 samples from wild loggerhead sea turtles (
The applicant requests to renew their captive-bred wildlife registration under 50 CFR 17.21(g) for the following species, to enhance the propagation or survival of the species. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests authorization to export and re-import nonliving avian museum specimens of endangered species previously accessioned into the applicant's collection for scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests the renewal and amendment of their permit to export and re-import non-living museum and herbarium specimens of endangered and threatened species previously legally accessioned into the permittee's collection for scientific research. This notification covers activities to be conducted by the applicant over a 5-year period.
The applicant requests a permit to import a sport-hunted trophy of one male bontebok (
After the comment period closes, we will make decisions regarding permit issuance. If we issue permits to any of the applicants listed in this notice, we will publish a notice in the
We issue this notice under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Land Management (BLM) proposes to renew an information collection.
Interested persons are invited to submit comments on or before May 1, 2023.
Written comments and recommendations for this information collection request (ICR) should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Darrin King by email at
In accordance with the PRA (44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again inviting the public and other Federal agencies to comment on the proposed ICR described below. The BLM is especially interested in public comment addressing the following:
(1) 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.
(2) The accuracy of our estimate of the burden for this 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) How might the agency minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice are a matter of public record. 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.
An agency may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
International Trade Commission.
Suspension of anti-dumping and countervailing duty investigations.
On March 24, 2023, the U.S. Department of Commerce (“Commerce”) published notices in the
March 24, 2023.
Ahdia Bavari (202-205-3191), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
By order of the Commission.
United States International Trade Commission.
April 7, 2023 at 11:00 a.m.
Room 101, 500 E Street SW, Washington, DC 20436, Telephone: (202) 205-2000.
Open to the public.
1.
2. Minutes.
3. Ratification List.
4. Commission vote on Inv. Nos. 701-TA-552 and 731-TA-1308 (Review) (Pneumatic Off-the-Road (OTR) Tires from India). The Commission currently is scheduled to complete and file its determinations and views of the Commission on April 27, 2023.
5.
Sharon Bellamy, Acting Supervisory Hearings and Information Officer, 202-205-2000.
The Commission is holding the meeting under the Government in the Sunshine Act, 5 U.S.C. 552(b). In accordance with Commission policy, subject matter listed above, not disposed of at the scheduled meeting, may be carried over to the agenda of the following meeting.
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Sterling Pharma USA LLC. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
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 May 30, 2023. Such persons may also file a written request for a hearing on the application on or before May 30, 2023.
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 March 3, 2023, Sterling Pharma USA LLC., 1001 Sheldon Drive, Suite 101, Cary, North Carolina 27513-2078, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to manufacture the above-listed controlled substance(s) to support clinical trials. No other activities for this drug code is authorized for this registration.
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
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 May 30, 2023. Such persons may also file a written request for a hearing on the application on or before May 30, 2023.
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 February 16, 2023, 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.
PerkinElmer, Inc. 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 May 1, 2023. Such persons may also file a written request for a hearing on the application on or before May 1, 2023.
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 February 22, 2023, PerkinElmer, Inc., 120 East Dedham Street, Boston, Massachusetts 02118-2852, 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 for bulk manufacturing into radioactive formulations for sale to its customers for research purposes. Drug code 9333 (Thebaine) will be used to import the Thebaine derivative Diprenorphine. No other activity for this drug code is 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.
Drug Enforcement Administration, Justice.
Notice of application.
ANI Pharmaceuticals, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
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 May 30, 2023. Such persons may also file a written request for a hearing on the application on or before May 30, 2023.
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 March 3, 2023, ANI Pharmaceuticals, Inc., 70 Lake Drive, East Windsor, New Jersey 08520, 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 internal use or for sale to its customers. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Lyndra Therapeutics has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
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 May 1, 2023. Such persons may also file a written request for a hearing on the application on or before May 1, 2023.
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 February 20, 2023, Lyndra Therapeutics, 65 Grove Street Suite 301, Watertown, Massachusetts 02472 applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the above controlled substance for use in preclinical research and human clinical trials. No other activity for this drug code is 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.
On March 27, 2023, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of New Mexico in the lawsuit entitled
In this action, the United States, on behalf of the U.S. Environmental Protection Agency, and the New Mexico Environment Department filed a complaint alleging that Matador Production Company (“Defendant”) violated the Clean Air Act, the New Mexico Air Quality Control Act, and the implementing regulations at 25 of Defendant's oil and natural gas production facilities in New Mexico by,
Under the proposed settlement, Defendant agrees to pay a civil penalty of $1,150,000 (of which $650,000 is to be paid to the United States and $500,000 is to be paid to the State of New Mexico) and to spend at least $1,250,000 on a diesel emission reduction Supplemental Environmental Project (“SEP”) and at least $500,000 on a state aerial emission monitoring SEP.
In addition, the settlement requires the Defendant to ensure ongoing compliance with all applicable regulatory requirements at all 255 of its oil and natural gas production facilities in New Mexico. Specifically, the settlement requires the Defendant to identify and remedy any compromised equipment, undertake a design analysis to ensure adequate design and sizing of the vapor control system, install and operate extensive monitoring systems, implement a robust inspection and maintenance program, and hire an independent third party to verify compliance.
The publication of this notice opens a period for public comment on the proposed consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $33.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Occupational Safety and Health Administration (OSHA), Labor.
Request for public comments.
OSHA solicits public comments concerning the proposal to extend the Office of Management and Budget's (OMB) approval of the information collection requirements specified in its Standard on Asbestos in Shipyards.
Comments must be submitted (postmarked, sent, or received) by May 30, 2023.
For further information on submitting comments, see the “Public Participation” heading in the section of this notice titled
Seleda Perryman or Theda Kenney, Directorate of Standards and Guidance, OSHA, U.S. Department of Labor; telephone (202) 693-2222.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent (
The following sections describe who uses the information collected under each requirement, as well as how they use it. The purpose of these requirements are to help employers monitor worker exposure to asbestos, take action to reduce worker exposure to the permissible exposure limit (PEL), monitor worker health, and provide workers with information about their exposure and the health effects of asbestos.
OSHA has a particular interest in comments on the following issues:
• Whether the proposed information collection requirements are necessary for the proper performance of the agency's functions to protect workers, including whether the information is useful;
• The accuracy of OSHA's estimate of the burden (time and costs) of the information collection requirements, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information collected; and
• Ways to minimize the burden on employers who must comply; for example, by using automated or other technological information collection, and transmission techniques.
OSHA is requesting that OMB extend the approval of the information collection requirements contained in the Standard on Asbestos in Shipyards. The agency is requesting a 70 hour decrease adjustment in the burden hours (from 1,108 hours to 1,038). This decrease is due to a decrease in the number of shipyard employees in the preceding paperwork package. OSHA is also requesting a decrease in the total annual cost burden for the exposure monitoring and medical examinations. The estimated burden decreased by $9,939 (from $44,578 to $34,639). This decrease is due to a decrease in the number of shipyard employees found in the preceding package.
OSHA will summarize the comments submitted in response to this notice and will include this summary in the request to OMB to extend the approval of the information collection requirements.
You may submit comments in response to this document as follows: (1) electronically at
Comments and submissions are posted without change at
James S. Frederick, Deputy Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, 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.
Comments are due by May 30, 2023.
Written comments and recommendations for this information collection should be sent within 60 days of publication of this notice to
Find this information collection by selecting “Currently under 60-day Review-Open for Public Comments” or by using the search function.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Bill Edwards-Bodmer, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF0000, Washington, DC 20546, 757-864-3292, or
NASA hosts/sponsors numerous events on federally owned/leased property which are open to NASA affiliates and members of the public. The events include but are not limited to meetings, conferences, briefings, public outreach activities, tours, focus groups, etc. Visitor access is substantiated by a credentialed NASA sponsor who validates the visitor's need to access a building/area, guest networking services, etc. for a specific event/purpose. Information is collected to validate identity and enable intermittent access to activities.
Currently, visitor registration is accomplished via several electronic and paper processes. The NASA Office of Protective Services is transitioning to a one-NASA process to manage access for visitors with an affiliation less than 30-days.
NASA may collect event registration information to include but not limited to a visitor's name, address, citizenship, biometric data, purpose of visit, the location to be visited, escort/sponsor name with contact data, and preferred meeting/event sessions when options are available. When parking is provided on federal owned/leased space, driver's license information as well as vehicle make/model/tag information will be collected.
When visitors/vendors are permitted to bring equipment and/or event set-up materials such as booths and displays, information will be collected to issue property passes and coordinate equipment/property delivery. Information will also be collected, when applicable, to include other associated requirements such as electrical power needs, internet access, etc.
NASA collects, stores, and secures information from individuals requiring routine and intermittent access in a manner consistent with the Constitution and applicable laws, including the Privacy Act (5 U.S.C. 552a) and the Paperwork Reduction Act.
Electronic.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) 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 respondents, including automated collection techniques or the use of other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
National Archives and Records Administration (NARA).
Notice.
We are proposing to request an extension from the Office of Management and Budget (OMB) of one currently approved information
We must receive written comments on or before May 30, 2023.
Send comments to Paperwork Reduction Act Comments (MP), Room 4100, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or email them to
Tamee Fechhelm, Paperwork Reduction Act Officer, by email at
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), we invite the public and other Federal agencies to comment on proposed information collections. If you have comments or suggestions, they should address one or more of the following points: (a) whether the proposed information collection is necessary for NARA to properly perform its functions; (b) our estimate of the burden of the proposed information collection and its accuracy; (c) ways we could enhance the quality, utility, and clarity of the information we collect; (d) ways we could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether the collection affects small businesses.
We will summarize any comments you submit and include the summary in our request for OMB approval. All comments will become a matter of public record.
In this notice, we solicit comments concerning the following information collection:
Institute of Museum and Library Services, National Foundation on the Arts and the Humanities.
Submission for OMB review, request for comments, collection of information.
The Institute of Museum and Library Services announces that the following information collection has been submitted to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This program helps to ensure that 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 on respondents can be properly assessed. This Notice proposes the clearance of the 2024-2026 IMLS Grant Application Forms. A copy of the proposed information collection request can be obtained by contacting the individual listed below in the
Written comments must be submitted to the office listed in the
Written comments and recommendations for proposed information collection requests should be sent within 30 days of publication of this Notice to
OMB is particularly interested in comments that help the agency to:
☐ 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 (
Connie Bodner, Ph.D., Director of Grants Policy and Management, Institute of Museum and Library Services, 955 L'Enfant Plaza North SW, Suite 4000, Washington DC 20024-2135. Dr. Bodner may be reached by telephone at 202-653-4636, or by email at
The Institute of Museum and Library Services is the primary source of federal support for the nation's libraries and museums. We advance, support, and
This action is to seek approval for the information collection for the IMLS Museum Program Information Form, the IMLS Library-Discretionary Program Information Form, and the IMLS Supplementary Form for the next three years.
The 60-day Notice was published in the
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “IAEA Design Information Questionnaire Forms.”
Submit comments by May 30, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0020 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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10.
The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
The documents identified in the following table are available to interested persons through ADAMS.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to (1) amend Rule 308 to reflect the consolidation of the Acceptability Board with the Hearing Board as defined in Rule 9232(b), and (2) delete and, where applicable, replace certain obsolete references in its rules and the Listed Company Manual. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to (1) amend Rule 308 to reflect the consolidation of the Acceptability Board with the Hearing Board as defined in Rule 9232(b), and (2) delete and, where applicable, replace certain obsolete references in its rules and the Listed Company Manual.
Pursuant to Rule 308, Acceptability Committees are composed of at least three persons who are members of the Acceptability Board. Rule 308 establishes procedures for Acceptability Committees to consider applications prior to disapproval by the Exchange (1) of prospective members or member organizations; (2) of any prospective member, principal executive, registered representative, or other person required by the Rules of the Exchange to be approved by the Exchange for employment or association with a member or member organization; (3) for any change in status of any person which change requires Exchange approval; and (4) of any prospective non-member broker/dealer accessee. Rule 308(c) provides that the Acceptability Board be appointed annually by, in part, the Chair of the Board of Directors (“Board”) subject to the approval of the Board, and that it be composed of such number of members and allied members
Rule 9232 (Criteria for Selection of Panelists, Replacement Panelists, and Floor-Based Panelists) establishes procedures for the selection and appointment of panelists to a Hearing Panel as defined in Rule 9120 (Definitions) to conduct disciplinary proceedings and issue a decision. Pursuant to Rule 9232(a), each panelist, except for the Hearing Officer, shall be a member of the NYSE hearing board (“Hearing Board”) provided for in Rule 9232(b). Rule 9232(b) states that the Board shall from time to time appoint a Hearing Board to be composed of such number of members and former allied members
All of the current members of the Acceptability Board are also members of the Hearing Board. Given the overlap in the composition of the Acceptability Board and the Hearing Board, and the fact that the Acceptability Board is appointed for no other purpose than providing a ready pool for staffing Acceptability Committees, the Exchange has determined to cease appointing a separate Acceptability Board. In this filing, the Exchange accordingly proposes to amend Rule 308 to reflect the consolidation but retain the current composition of Acceptability Committees. As noted, the Exchange also proposes to amend Rule 9232 to provide that the Hearing Board shall be composed, in part, of members and principal executives. As discussed in detail below, this proposed change will also harmonize Rule 9232 with Rule 308.
Rule 9232(b) provides that the Hearing Board be appointed annually by the Board and serve at their pleasure. By contrast, Rule 308(c) provides that the Acceptability Board be appointed annually by the Chair, or officer, employee or committee or board to whom appropriate authority has been delegated, subject to the approval of the Board, to serve at the pleasure of the Board. Despite the apparent difference, the Exchange believes that as a practical matter the proposed change is consistent with current practice, as the board to whom authority has been delegated pursuant to Rule 308(c) is the Board itself. As a result, the Board appoints both the Hearing Board and the Acceptability Board. Moreover, the Exchange believes that having the full Board make appointments is the more conservative option for appointing Hearing Board members, who serve at the pleasure of the Board.
Finally, in addition to replacing the remaining obsolete references to “allied member,” the Exchange proposes to replace obsolete references to “specialists” with “DMM” (
The composition of and criteria for appointment to both the Acceptability Board and the Hearing Board are substantially similar. Current Rule 308(c) provides that the Acceptability Board shall be composed of “members and allied members of the Exchange who are not members of the Board of Directors, and registered employees and non-registered employees of members and member organizations, as the
Rule 308(c) would be amended to provide that Acceptability Committees will consist of at least three persons that are members of the Hearing Board and that are also members and principal executives of the Exchange who are not Board members, or that are registered employees and non-registered employees of member organizations, as the Chair of the Board shall deem necessary. Amended Rule 308 would further clarify that the term Chief Hearing Officer is defined in Rule 9120(c).
As proposed, the Exchange would consolidate the Acceptability Board and the Hearing Board but not permit former members, former principal executives, or registered and non-registered employees of member organizations who have retired from the securities industry to be appointed to Acceptability Committees consistent with current Rule 308(c).
To effectuate these changes, the Exchange would replace “Acceptability Board” with “Hearing Board” in Rule 308(c) and (d). In addition, the Exchange would update the obsolete reference to Rule 476(b) in Rule 308(c) with a reference to the definition of Chief Hearing Officer in the Rule 9000 Series, the Exchange's current disciplinary rules. The second paragraph in current Rule 308(c), which sets forth the appointment and composition requirements for the Acceptability Board, would be deleted. Proposed Rule 308(c) would read as follows (new text italicized, deleted text bracketed):
(c) All proceedings under this rule shall be conducted in accordance with the provisions of this rule and shall be held before an Acceptability Committee consisting of at least three persons being members of the [Acceptability]
[The Chairman of the Board of the Exchange, or officer, employee or committee or board to whom appropriate authority has been delegated, subject to the approval of the Board of Directors, shall from time to time appoint an Acceptability Board to be composed of such number of members and allied members of the Exchange who are not members of the Board of Directors, and registered employees and non-registered employees of members and member organizations, as the Chairman of the Board of the Exchange shall deem necessary. The members of the Acceptability Board shall be appointed annually and shall serve at the pleasure of the Board of Directors.]
In 2013, the Exchange adopted Rule 9232 as part of its adoption of rules relating to investigation, discipline, and sanctions, and other procedural rules based on FINRA's rules.
The Exchange has determined to update the Rule since there are no longer former allied members serving on the Hearing Board. The Exchange accordingly proposes to replace “former allied members” in the first sentence of Rule 9232(b) with “principal executives.” In addition, the Exchange would amend the second sentence of Rule 9232(b) to replace “allied members” with “principal executives”. As amended, Rule 9232(b) would permit principal executives who have retired from the securities industry to be appointed to the Hearing Board.
The Exchange proposes to replace obsolete references to “allied member” or “allied members” with “principal executive” or “principal executives,” as applicable, in the following:
• Rule 457 (Filing Participant Information (Schedule B))
• Rule 458 (Filing of Proxy Material (Schedule A))
• Rule 459 (Other Persons to File Information When Associated with Member)
• Rule 472 (Communications With The Public)
• Rule 600 (Arbitration)
• Rule 607 (Designation of Number of Arbitrators)
• Rule 629 (Schedule of Fees)
• Rule 630 (Uniform Arbitration Code)
• Rule 632 (Member Controversies)
• Rule 633 (Board of Arbitration)
• Rule 637 (Failure To Honor Award)
• Sections 402.09 (Exchange Proxy Contest Rules) and 703.18 (Contingent Value Rights) of the Listed Company Manual.
The Exchange proposes to delete references to “allied member” in the following rules:
• Rule 607 (Designation of Number of Arbitrators). Principal executives do not have associated persons. The references to a person associated with an allied member in Rule 607(a)(2)(i) and (a)(3)(i) are therefore obsolete.
• Section 202.03 (Dealing with Rumors or Unusual Market Activity) of the Listed Company Manual. Rule 435 referred to in Section 202.03 does not apply to allied members or principal executives, so deletion of the term from Section 202.03 would be appropriate.
The Exchange further proposes to replace obsolete references to “specialist” with “DMM”
• The summary under “The Listing Process,” which is Section 1 of the “Sectional Organization Summary” under the “General Organization” heading of the “Organization of the Manual” section in the Introduction to the Listed Company Manual;
• The third entry under the “Miscellaneous and Related Matters” heading below “Reference Guide for Subsequent Listing Applications (703.00 & 903.02)”; and
• The heading for Section 806.00 titled “Request of Listed Company for a Change of Specialist Unit or for Removal from the List” in Section 8 (Suspension and Delisting) of the Listed Company Manual.
Finally, the Exchange proposes to delete an obsolete reference to “the Medical Clinic located in the Exchange building” in Rule 301(b) (Qualifications for Membership).
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
Amending Rule 308 to reflect the consolidation of the Acceptability Board with the Hearing Board would continue to contribute to the orderly operation of the Exchange. As proposed, given the overlap in the membership of the two boards, the Exchange would appoint the same individuals to a single board that would be available to serve on both Hearing Panels for disciplinary actions (the Hearing Board's current function) and Acceptability Committees for acceptability hearings (the Acceptability Board's sole current function). The proposed change would streamline the process of appointing individuals to boards charged with specific functions under the Exchange's rules and eliminate duplication in the appointment of Exchange boards, which would enable the Exchange to continue to be so organized as to have the capacity to carry out the purposes of the Act and comply with the provisions of the Act by its members and persons associated with members, thereby furthering the objectives of section 6(b)(1)
The Exchange further believes that the proposed change would be beneficial to both investors and the public interest, thereby promoting the maintenance of a fair and orderly market and the protection of investors and the public interest consistent with section 6(b)(5) of the Act.
Moreover, the Exchange believes that as a practical matter the proposed change is consistent with current practice, as the board to whom authority has been delegated pursuant to Rule 308(c) is the Board itself, and as a result the Board appoints both the Hearing Board and the Acceptability Board. The Exchange believes that having the full Board make appointments is the more
Finally, the Exchange believes that deletion and, where applicable, replacement of the obsolete references in its rules and the Listed Company Manual to superseded membership categories (allied members) and market participants (specialists), and the outdated reference to the Exchange's medical clinic, would increase the clarity and transparency of the Exchange's rules and remove impediments to and perfect the mechanism of a free and open market by ensuring that persons subject to the Exchange's jurisdiction, regulators, and the investing public could more easily navigate and understand the Exchange Bylaws and rules. The Exchange further believes that the proposed amendments would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency and clarity, thereby reducing potential confusion.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not intended to address competitive issues but rather is concerned solely with streamlining the process of appointing individuals to boards charged with specific functions under the Exchange's rules and eliminating duplication in the appointment of Exchange boards and with deleting and, where applicable, replacing, references to obsolete references in its rules.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission will institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-NYSE-2023-19. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Mississippi (FEMA-4697-DR), dated 03/26/2023.
Issued on 03/26/2023.
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 Recovery & Resilience, 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 03/26/2023, 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 17836 C and for economic injury is 17837 0.
U.S. Small Business Administration.
Amendment 1.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of South Dakota (FEMA-4689-DR), dated 02/27/2023.
Issued on 03/21/2023.
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 Recovery & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of South Dakota, dated 02/27/2023, is hereby amended to include the following areas as adversely affected by the disaster
All other information in the original declaration remains unchanged.
Social Security Administration.
Notice.
We are announcing a demonstration project for the Social Security Supplemental Security Income (SSI) program under title XVI of the Social Security Act (Act). In this project, we will test the effect of providing guaranteed income to adults with cancer in active treatment to learn about its interaction with the SSI program. We will modify the program rules that apply to certain project participants who apply for and who already receive SSI payments under the title XVI program.
We plan to begin this project in March 2023 and end it in April 2030.
Debra Engler, Office of Retirement and Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235, 443-729-6727. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, Social Security Online, at
Under the GIFTT, we will test the effect of providing guaranteed income payments to adults with cancer in active treatment. We are conducting this project under section 1110 of the Social Security Act, which provides the Commissioner the authority to carry out demonstrations which are likely to assist in promoting the objectives or facilitating the administration of title XVI. This test will inform how providing a level of guaranteed income
We have a cooperative agreement with the University of Pennsylvania and Humanity Forward Foundation to implement and evaluate the GIFTT. For the evaluation, we will modify the program rules that apply to certain project participants and provide aggregated data that will compare outcomes between intervention group and control group participants with regard to benefits, earnings, and mortality. One Family Foundation will fund the guaranteed income payments. Humanity Forward Foundation will administer the guaranteed income payments and benefits counseling. The University of Pennsylvania will recruit participants and conduct the surveys and evaluation.
Potential participants are adults with cancer in active treatment. All participants must have an annual household income at or below 200 percent of the Federal Poverty Line. The adults with cancer are individuals who are in treatment at Jefferson Health or Penn Abramson Comprehensive Cancer Center
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The University of Pennsylvania expects to recruit up to 600 individuals to participate in the GIFTT. Participation is voluntary and individual participants will sign an informed consent. The University of Pennsylvania will randomly assign participants to a control group or an intervention group. The control group consists of participants who will not receive guaranteed income payments; they will receive the typical supports available to patients with cancer at their hospital, including a referral to a social worker or navigator. The intervention group consists of participants who will receive guaranteed income payments of $1,000 per month for 12 months, along with benefits counseling.
Under title XVI of the Act, we make SSI payments to persons who are aged, blind, or disabled, and who also have limited income and resources. We expect some participants in the GIFTT will apply for or already receive SSI payments. We will apply the alternate rules, as described below, to those participants in the intervention group who consent to sharing their data with us in the informed consent. All participants can withdraw from the project at any time. We will apply all usual program rules to all applicable participants three years after the receipt of their final guaranteed income payment.
The following alternate program rules will apply to those who apply for and those who already receive SSI that are assigned to the intervention group during participation in the GIFTT and consent to share data with SSA:
• Exclusion of the guaranteed income payments as income when determining eligibility and payments;
• Exclusion of guaranteed income as resources during the 12-month payment period plus a period of up to three years after receipt of the final guaranteed income payment; and
• Protection of the household from offsetting SSI payments and resource limits because of guaranteed income payments. When deeming rules apply, guaranteed income payments will be excluded from income and resources. The limitation on resources will be removed with respect to guaranteed income payments.
Applying these alternate rules involves waiving or altering certain provisions included in sections 1611(a)(1)(B), (a)(2)(B), (a)(3)(A), 1612(a)(2), 1614(f)(1), (f)(2)(A) of the Act and 20 CFR 416.1102, 416.1123, 416.1160, 416.1163, 416.1165, 416.1201, 416.1202, 416.1205, 416.1207.
Section 1110(b) of the Act authorizes us to waive any requirements, conditions, or limitations of title XVI necessary to carry out demonstration projects. Consistent with the requirements in section 1110(b)(2)(B) of the Act, participation in the GIFTT is voluntary and based on informed consent, and the voluntary agreement to participate may be withdrawn by the participant at any time.
The Acting Commissioner of the Social Security Administration, Kilolo Kijakazi, Ph.D., M.S.W., having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for the Social Security Administration, for purposes of publication in the
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes two new collection and a revision of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
(OMB) Office of Management and Budget, Attn: Desk Officer for SSA, Comments:
(SSA) Social Security Administration, OLCA, Attn: Reports Clearance Director, 3100 West High Rise, 6401 Security Blvd., Baltimore, MD 21235, Fax: 410-966-2830, Email address:
Or you may submit your comments online through
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than May 30, 2023. Individuals can obtain copies of the collection
SSA is requesting clearance to collect data necessary to evaluate an intervention under the Interventional Cooperative Agreement Program (ICAP) with the State of Georgia's Criminal Justice Coordinating Council (CJCC). ICAP allows SSA to partner with various non-federal groups and organizations to advance interventional research connected to the Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) programs. SSA awarded CJCC a cooperative agreement to conduct an intervention and evaluation of the Supplemental Security Income (SSI)/Social Security Disability Insurance (SSDI) Outreach, Access, and Recovery (SOAR) model in county jails with inmates with serious and persistent mental illness (SPMI) across the state. In addition to SSA, CJCC has partnered with the following: (1) Applied Research Services (ARS); (2) the Georgia Department of Behavioral Health and Developmental Disabilities (DBHDD); and (3) four county jails to implement the program.
Investigators hypothesize that untreated mental illness and repeated psychiatric crises may be a factor in jail recidivism. Connection to SSI/SSDI and attendant insurance benefits may help a person with SPMI obtain treatment and interrupt criminogenic behavior. The intervention will connect respondents in four county jails identified as having SPMI to Medicaid Eligibility Specialists (MES) hired and trained by the Georgia DBHDD, who will help them apply for SSI and SSDI. Respondents in two of the four counties (Fulton County Jail and Cobb County Jail) will also have the option of working with a Forensic Peer Mentor (FPM), a formerly incarcerated individual who is familiar with resources that may help participants increase their quality-of-life post incarceration and avoid recidivism. SSA anticipates the two DBHDD MESs will each serve 45 participants per year, for a total of 90 participants per year.
To maximize the likelihood of the SSI/SSDI application approval, the MES will employ the SOAR method, which uses in-depth medical and personal summaries of disability to facilitate the SSI/SSDI application process. Researchers will collect data from participant surveys to evaluate and study the impact of the intervention. Through the data collected through these surveys, along with administrative data from SSA, the State of Georgia, participating counties, and DBHDD, SSA hopes to address the following research questions:
• Does connection to a SOAR-trained specialist increase the likelihood that a person with SPMI in jail will be approved for SSI/SSDI benefits?
• If a person with SPMI receives SSI/SSDI benefits, are they able to connect to treatment resources that they may not have been able to obtain before?
• If a person with SPMI connects to treatment resources and successfully engages with them, are they able to achieve mental health recovery and stay out of jail?
The respondents are individuals with serious and persistent mental illness incarcerated in county jails in the state of Georgia.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than May 1, 2023. Individuals can obtain copies of these OMB clearance packages by writing to
• Was the intervention implemented as planned?
• What are key considerations for scaling up or adopting the VRF model at other facilities?
• What were the impacts of VRF on outcomes of interest?
• Did treatment group members earn or work more than control group members?
• Were treatment group members relatively less likely to apply to or receive SSI or SSDI benefits?
• Did treatment group members experience greater satisfaction and well-being than control group members?
• What were the benefits and costs of the demonstration across key groups?
The proposed public survey data collections will support three components of the planned implementation, impact, and benefit-cost analyses. The data collection efforts will provide information that is not available in SSA program records about the characteristics and outcomes of VRFD participants in the treatment and control groups. Respondents are newly injured SCI and BI patients, who will provide written consent before agreeing to participate in the study and be randomly assigned to one of the study groups.
The Department of State has renewed the Charter for the U.S. Advisory Commission on Public Diplomacy (ACPD).
The Commission was originally established under section 604 of the United States Information and Educational Exchange Act of 1948, as amended (22 U.S.C. 1469), and under section 8 of Reorganization Plan Number 2 of 1977. It was permanently reauthorized pursuant to section 5604 of the National Defense Authorization Act, Fiscal Year 2022 (Pub. L. 117-81), which amended section 1134 of the Foreign Affairs Reform and Restructuring Act of 1998 (22 U.S.C. 6553).
For more than 70 years, the ACPD has appraised U.S. Government activities intended to understand, inform, and influence foreign publics and has aimed to increase the understanding of and support for these activities. The Commission conducts research and symposia that provide honest
The Commission consists of seven members appointed by the President, with the advice and consent of the Senate. The members of the Commission represent the public interest and are selected from a cross section of educational, communications, cultural, scientific, technical, public service, labor, business, and professional backgrounds. No more than four members may be from any one political party. The President designates a member to chair the Commission.
The current members of the Commission are: Mr. Sim Farar of California, Chair; Mr. William Hybl of Colorado, Vice-Chair; and Ms. Anne Terman Wedner of Florida. Four seats on the Commission currently are vacant.
The Charter renewal was filed on March 15, 2023.
For further information about the Commission, please contact Vivian S. Walker, the Commission's Designated Federal Officer and Executive Director, at
Notice.
This notice contains the text of the report required by the Global Magnitsky Human Rights Accountability Act, as submitted by the Secretary of State.
Andrew Self, email:
On December 21, 2022, the Under Secretary of State for Political Affairs approved the following report pursuant to the Global Magnitsky Human Rights Accountability Act (Pub. L. 114-328, Title XII, Subtitle F), as amended by Public Law 117-110, Section 6 (collectively, “the Act”), which is implemented and built upon by E.O. 13818 of December 20, 2017, “E.O. Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption”(E.O. 13818). The text of the report follows:
Pursuant to Section 1264 of the Act, and in accordance with E.O. 13818, the Secretary of State, in consultation with the Secretary of the Treasury, submits this report to detail the Administration's implementation of the Act in the 2022 reporting period.
In 2022, the United States took significant action under the Global Magnitsky sanctions program (“Global Magnitsky”), designating 35 foreign persons over the course of the year. As of December 10, 2022, the United States has designated a total of 450 foreign persons (individuals and entities) pursuant to E.O. 13818. This sanctions program, which targets those connected to serious human rights abuse, corrupt actors, and their enablers, represents the best of the United States' values and enduring commitment to promote respect for human rights and combat corruption around the world. Through the Act and E.O. 13818, the United States has sought to disrupt and deter serious human rights abuse and corruption abroad; promote accountability for those who act with impunity; and maintain U.S. global leadership on anticorruption and human rights promotion in coordination with U.S. partners, allies, and civil society where appropriate. In recognition of the repeal of Section 1265 of the Act, signed into law on April 8, 2022 in Public Law 117-110, Section 6 (which enables the Reauthorization of Sanctions Under the Global Magnitsky Human Rights Accountability Act with Respect to Human Rights Violations and Corruption), the Administration can and will continue to utilize this tool to promote respect for human rights and the rule of law globally.
As the President outlined in his National Security Strategy (NSS), the United States will stand with our allies and partners to combat new threats aimed at our democracies. The Administration will take special aim at confronting corruption, which rots democracy from the inside, erodes government stability, impedes economic development, and is increasingly weaponized by authoritarian states to undermine democratic institutions. The United States seeks to promote respect for human rights; address discrimination, inequity, and marginalization in all its forms; and stand up for democracy, the rule of law, and human dignity. On all these issues, the United States works to forge a common approach with likeminded countries. Through implementation of the Global Magnitsky sanctions program, the Administration is taking action to execute the President's vision as described in the NSS.
The Global Magnitsky program and cooperation with like-minded international partners directly address the objectives outlined in the President's 2021 Memorandum on Establishing the Fight Against Corruption as a Core National Security Interest. This memorandum states that corruption threatens U.S. national security, economic equity, global anti-poverty and development efforts, and democracy itself. It directs U.S. government action to strengthen efforts to hold accountable corrupt individuals and their facilitators, including by, where appropriate, identifying, freezing, and recovering stolen assets through sanctions or other authorities; bolster the capacity of domestic and international institutions and multilateral bodies focused on establishing global anti-corruption norms; and work with international partners to counteract strategic corruption by foreign leaders, foreign state-owned or affiliated enterprises, and other foreign actors and their domestic collaborators.
On December 20, 2021, President Biden elevated anti-corruption to the forefront of U.S. national security strategy with the first ever U.S. Strategy on Countering Corruption, consisting of five mutually reinforcing pillars, including (i) Modernizing, Coordinating, and Resourcing U.S. Government Efforts to Fight Corruption, (ii) Curbing Illicit Finance, (iii) Holding Corrupt Actors Accountable, (iv) Preserving and Strengthening the Multilateral Anti-Corruption Architecture, and (v) Improving Diplomatic Engagement and Leveraging Foreign Assistance. This anti-corruption strategy spotlights the Global Magnitsky sanctions program among the U.S. government's foreign policy tools for promoting global accountability for serious human rights abuse and corruption through the imposition of financial sanctions on foreign persons.
Actions taken in 2022 continue to demonstrate the reach, flexibility, and broad scope of Global Magnitsky. The United States responded to serious human rights abuse and corruption globally, deterring and disrupting some of the most egregious behavior by foreign actors. These actions targeted, among others, corrupt politicians
As noted in the Presidential Memorandum on Combating Illegal, Unreported, and Unregulated Fishing and Associated Labor Abuses, if IUU fishing and associated labor abuses are left unchecked, they threaten the livelihoods and human rights of fishers around the world and undermine U.S. economic competitiveness, national security, and fishery sustainability. This was the first time the United States has sanctioned an entity connected to serious human rights abuse related to forced labor issues. Where applicable, the United States used Global Magnitsky sanctions in coordination with international law enforcement actions, including Drug Enforcement Administration and Federal Bureau of Investigation (FBI) investigations, extraditions, and indictments. These designations demonstrate the Administration's resolve to leverage this important tool judiciously and to strategic effect.
When considering financial sanctions under Global Magnitsky, the United States prioritizes actions that are expected to produce a tangible and significant impact on corrupt actors, serious human rights abusers, and their affiliates, and prompt changes in behavior or disrupt the activities of malign actors. Sanctions under the Global Magnitsky program aim to target systemic corruption and human rights abuse, including the networks that engage in, facilitate, or perpetuate sustained patterns of such illicit behavior rather than incidental acts by individual targets. Persons sanctioned pursuant to this authority appear on the Office of Foreign Assets Control's (OFAC's) List of Specially Designated Nationals and Blocked Persons (SDN List). As a result of these actions, all property and interests in property of the sanctioned persons that are in the United States or in the possession or control of U.S. persons are blocked and must be reported to OFAC. Unless authorized by a general or specific license issued by OFAC or otherwise exempt, OFAC's regulations generally prohibit all transactions by U.S. persons or within (or transiting) the United States that involve any property or interests in property of designated or otherwise blocked persons. The prohibitions include the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods or services from any such person.
In 2022, the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, imposed financial sanctions on the following 35 foreign persons (individuals and entities) pursuant to E.O. 13818 (ordered by date of designation):
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Persons designated pursuant to E.O. 13818 are subject to the entry restrictions articulated in section 2, unless an exception applies. Section 2 provides that the entry of persons designated under section 1 of the order is suspended pursuant to Presidential Proclamation 8693.
In 2022, the Department took steps to impose visa restrictions, when appropriate, on foreign persons involved in certain human rights violations andsignificantcorruption pursuant to other authorities, including Presidential Proclamations 7750 and 8697, and Section 7031(c) of the Department of State, Foreign Operations, and Related Programs Appropriations Act and will continue to identify individuals subject to those authorities as appropriate. In addition, the Department continues to implement all grounds of inadmissibility in the Immigration and Nationality Act (INA), including INA section 212(a)(3)(E) which renders applicants ineligible for visas if a consular officer has reason to believe that they participated in acts of genocide, torture or extrajudicial killings.
The United States recognizes that our sanctions are most impactful when implemented in coordination with our foreign partners. In 2022, the Administration continueditssuccessful outreach campaign to international partners regarding the expansion and use of domestic and multilateral anticorruption and human rights sanctions regimes. Over thecourse of the reporting period, the Administration coordinated with like-minded partnersin pursuing coordinated actions against human rights abusers and corrupt actors, particularly in the run up to annual International Anti-Corruption Day and Human Rights Day. On December 9, the United States designated a total of 25 individuals and entities. The United Kingdom, Canada, and Australia joined us with actions against targets connected to human rights abuses in Iran. Additionally, the United Kingdom's tranche of sanctions under its Global Anti-Corruption and Global Human Rights regimes included individuals and entities previously designated by the United States under Global Magnitsky: Vladimir Plathoniuc (designated under E.O. 13818 on October 26, 2022), Milan Radoicic (designated under E.O. 13818 on Dec 8, 2021), and Zvonko Veselinovic (designated under E.O. 13818 on Dec 8, 2021).
The United States is closely following the development of a European Union (EU) anti-corruption sanctions authority and stands ready to support EU efforts by sharing insights and offering technical support, including regarding evidence collection, addressing legal challenges, and evidentiary requirements. The Departments of State and the Treasury have, over the last year, shared information, coordinated messaging, identified areas of potential collaboration, and provided technical assistance to this end. The Administration will continue to seek out additional allies and partners, including meaningful input from civil society, to leverage all tools at our disposal to deny access to the United States and international financial systems and deny entry to the United States to all those who engage in serious human rights abuse and corruption.
Fortress Investment Group LLC (Fortress), a non-carrier, has filed a verified notice of exemption under 49 CFR 1180.2(d)(2) on behalf of FTAI Infrastructure, Inc. (FTAI Infrastructure), Percy Acquisition LLC (PALLC), and Transtar, LLC (Transtar), to continue in control of East Ohio Valley Railway LLC (EOVR) upon EOVR becoming a rail common carrier.
This transaction is related to a concurrently filed verified notice of exemption in
According to the verified notice, Fortress will indirectly control EOVR
Fortress states that: (1) the Line does not connect with the lines of any of the rail common carriers currently owned by Transtar, nor would it connect with the proposed DXE passenger rail line; (2) this control transaction is not part of a series of anticipated transactions that would connect any of those rail common carriers; and (3) the transaction does not involve a Class I rail carrier. Therefore, the proposed transaction is exempt from the prior approval requirements of 49 U.S.C. 11323.
Under 49 U.S.C. 10502(g), the Board may not use its exemption authority to relieve a rail carrier of its statutory obligation to protect the interests of its employees. However, 49 U.S.C. 11326(c) does not provide for labor protection for transactions under 49 U.S.C. 11324 and 11325 that involve only Class III rail carriers. Because this transaction involves Class III rail carriers only, the Board, under the statute, may not impose labor protective conditions for this transaction.
The earliest this transaction may be consummated is April 16, 2023, the effective date of the exemption (30 days after the verified notice was filed). If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions to stay must be filed no later than April 7, 2023 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36683, should be filed with the Surface Transportation Board via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on Fortress's representative, Terence M. Hynes, Sidley Austin LLP, 1501 K Street NW, Washington, DC 20005.
According to Fortress, this action is excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Office of Proceedings.
East Ohio Valley Railway LLC (EOVR), a non-carrier, has filed a verified notice of exemption under 49 CFR 1150.31 to acquire from Ohio River Partners Shareholder LLC (ORPS), and operate, an approximately 12.2-mile rail line between milepost 60.5 near Powhatan Point, Ohio, and milepost 72.7 near Hannibal, Ohio (the Line).
This transaction is related to a concurrently filed verified notice of exemption in
According to the verified notice, EOVR and ORPS will enter into an asset purchase agreement in connection with the transaction.
EOVR certifies that the transaction does not involve any provision or agreement that may limit future interchange with a third-party connecting carrier, nor is the Line currently subject to any agreement that imposes such an interchange commitment.
EOVR further certifies that its projected annual revenues resulting from the transaction will not exceed $5 million and will not result in EOVR's becoming a Class I or Class II rail carrier.
The earliest this transaction may be consummated is April 16, 2023, the effective date of the exemption (30 days after the verified notice was filed).
If the verified notice contains false or misleading information, the exemption is void ab initio. Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed at any time. The filing of a petition to revoke will not automatically stay the effectiveness of the exemption. Petitions for stay must be filed no later than April 7, 2023 (at least seven days before the exemption becomes effective).
All pleadings, referring to Docket No. FD 36682, should be filed with the Surface Transportation Board via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on EOVR's representative, William A. Mullins, Baker & Miller PLLC, 2401 Pennsylvania Avenue NW, #300, Washington, DC 20037.
According to EOVR, this action is categorically excluded from environmental review under 49 CFR 1105.6(c) and from historic preservation reporting requirements under 49 CFR 1105.8(b).
Board decisions and notices are available at
By the Board, Mai T. Dinh, Office of Proceedings.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of limitation on claims for judicial review of actions by FHWA, the U.S. Army Corps of Engineers (USACE), and the U.S. Coast Guard.
This notice announces actions taken by FHWA, USACE, and USCG that are final. The actions relate to the I-526 Lowcountry Corridor West project, located in Charleston County, South Carolina. Those actions grant licenses, permits, and approvals for the project.
By this notice, FHWA is advising the public of a final agency action subject to 23 U.S.C. 139(
For FHWA: Emily O. Lawton, Division Administrator, Federal Highway Administration, Strom Thurmond Federal Building, 1835 Assembly Street, Suite 1270, Columbia, South Carolina 29201, Telephone: (803) 765-5411, Email:
Notice is hereby given that FHWA and other Federal agencies have taken final agency actions by issuing final approvals for the I-526 Lowcountry Corridor West (I-526 LCC West) project in Charleston County, South Carolina. The purpose of the I-526 LCC West project is to increase capacity at the I-26/I-526 interchange and along the I-526 mainline from Paul Cantrell Boulevard to Virginia Avenue. The proposed project consists of 3.5 miles of work on I-26 and 9.2 miles of work on I-526 for a total of 12.7 miles. The need for this project is derived from the following factors:
• Strong growth in population and employment.
• Decreased mobility and increased traffic congestion caused by base year traffic conditions and worsened by projected traffic conditions.
• Geometric deficiencies such as acceleration and deceleration lanes that are not long enough, short distances between entrance and exit ramps, tight curves on loop ramps, and poor sight distance.
• Pedestrian and bicycle connectivity and mobility needs.
The actions by the Federal agencies, and the laws under which such actions were taken, are described in the Combined Final Environmental Impact Statement (FEIS)/Record of Decision (ROD) for the project, approved on September 30, 2022, and in other documents in the project records. The Combined FEIS/ROD and other documents in the project file are available by contacting the FHWA or SCDOT at the addresses above. The Combined FEIS/ROD along with referenced technical documents can also be viewed and downloaded from the project website at
The USACE Record of Decision and section 404 permit was issued on February 24, 2023. The USACE Section 404 permit and Record of Decision are available by contacting USACE at the address provided above. The USCG issued their Record of Decision and Bridge permit on March 23, 2023. The USCG Section 9 permit and Record of Decision are available by contacting the USCG at the address provided above. This notice applies to all Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Petition for temporary exemption; withdrawal.
This notice notifies the public that Ford Motor Company (Ford) has withdrawn its July 2021 petition for temporary exemption from various requirements of the Federal motor vehicle safety standards (FMVSS) for a vehicle equipped with an automated driving system (ADS).
Callie Roach, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Telephone: 202-366-2992; Fax: 202-366-3820.
NHTSA received a petition from Ford Motor Company (Ford) on July 28, 2021, requesting a temporary exemption from portions of seven FMVSS.
Issued in Washington, DC, under authority delegated in 49 CFR 1.95.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's List of Specially Designated Nationals and Blocked Persons (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 8, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's list of Specially Designated Nationals and Blocked Persons (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See Supplementary Information section for applicable date(s).
OFAC: Andrea M. Gacki, Director, tel.: 202-622-2480; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On September 15, 2021, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The Department of the Treasury's Office of Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 24, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authority listed below.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's List of Specially Designated Nationals and Blocked Persons (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea M. Gacki, Director, tel.: 202-622-2480; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On January 23, 2022, OFAC determined that the property and
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On March 1, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations on the proposed information collection should be sent within 30 days of publication of this notice by clicking on the following link
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20420, (202) 266-4688 or email
The major use of the form is to determine a borrower's financial condition in connection with efforts to reinstate a seriously defaulted,
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. The
By direction of the Secretary.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. 10, that the Advisory Committee on Homeless Veterans meetings will be held on April 11-April 13, 2023. The meeting sessions will begin and end as follows:
The purpose of the Committee is to provide the Secretary of Veterans Affairs with an ongoing assessment of the effectiveness of the policies, organizational structures, and services of VA in assisting Veterans at risk of and experiencing homelessness. The Committee shall assemble and review information related to the needs of homeless Veterans and provide advice on the most appropriate means of assisting this Veteran population.
On April 11, 2023, the meeting will be a hybrid, held in-person at the Baltimore VA Medical Center, 10 North Greene Street (Room 3A-300), Baltimore, MD 21201; and virtually via Zoom conferencing. A limited number of public stakeholder seats will be available due to ongoing health and safety protocols that are enforced by the Baltimore VA Medical Center. Please note:
On April 12 and April 13, 2023, the Committee will conduct tours of VA and other Veteran service facilities and administrative workgroup sessions. Tours of VA and Veteran service facilities are closed, to protect Veterans' privacy and personal information in accordance with 5 U.S.C. 552b(c)(6).
No time will be allocated at the meeting for receiving oral presentations from the public. Interested parties should provide written comments on issues affecting homeless Veterans for review by the Committee to Anthony Love, Designated Federal Officer, Veterans Health Administration Homeless Programs Office (11HPO), U.S. Department of Veterans Affairs, 811 Vermont Avenue NW (11HPO), Washington, DC 20420, or via email at
Approximately 15 seats will be available for public stakeholders in attendance. The limited number of seating is due to the capacity of the meeting room as well as to ongoing health and safety protocols that are enforced by the Baltimore VA Medical Center. In order to accommodate your in-person attendance, please notify Anthony Love, Designated Federal Officer, Veterans Health Administration, Homeless Program Office at
Find your local number:
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of proposed rulemaking; announcement of public meeting.
The Energy Policy and Conservation Act, as amended (“EPCA”), prescribes energy conservation standards for various consumer products and certain commercial and industrial equipment, including miscellaneous refrigeration products. EPCA also requires the U.S. Department of Energy (“DOE”) to periodically determine whether more stringent, standards would be technologically feasible and economically justified, and would result in significant energy savings. In this notice of proposed rulemaking (“NOPR”), DOE proposes amended energy conservation standards for miscellaneous refrigeration products, and also announces a public meeting to receive comment on these proposed standards and associated analyses and results.
Interested persons are encouraged to submit comments using the Federal Rulemaking Portal at
No telefacsimiles (“faxes”) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section VII of this document.
The docket web page can be found at
EPCA requires the Attorney General to provide DOE a written determination of whether the proposed standard is likely to lessen competition. The U.S. Department of Justice Antitrust Division invites input from market participants and other interested persons with views on the likely competitive impact of the proposed standard. Interested persons may contact the Division at
Mr. Lucas Adin, 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. Email:
Mr. Matthew Schneider, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 597-6265. Email:
For further information on how to submit a comment, review other public comments and the docket, or participate in the public meeting, contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”),
Pursuant to EPCA, any new or amended energy conservation standard must be designed to achieve the maximum improvement in energy efficiency that DOE determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, the new or amended standard must result in a significant conservation of energy. (42 U.S.C. 6295(o)(3)(B)) EPCA also provides that not later than 6 years after issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a notice of proposed rulemaking including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m))
In accordance with these and other statutory provisions discussed in this document, DOE proposes amended energy conservation standards for miscellaneous refrigeration products. The proposed standards, which are expressed in kWh/yr, are shown in Table I.1. These proposed standards, if adopted, would apply to all miscellaneous refrigeration products listed in Table I.1 manufactured in, or imported into, the United States starting on the date 5 years after the publication of the final rule for this rulemaking.
Table I.2 presents DOE's evaluation of the economic impacts of the proposed standards on consumers of MREFs, as measured by the average life-cycle cost (“LCC”) savings and the simple payback period (“PBP”).
DOE's analysis of the impacts of the proposed standards on consumers is described in section IV.F of this document.
The industry net present value (“INPV”) is the sum of the discounted cash flows starting with the publication year (2023) of the NOPR and extending over a 30-year period following the expected compliance date of the standards (2023 to 2058). Using a real discount rate of 7.7 percent, DOE estimates that the INPV for manufacturers of MREFs, in the case without amended standards is $742.0 million.
DOE's analysis of the impacts of the proposed standards on manufacturers is described in section IV.J of this document. The analytic results of the manufacturer impact analysis (“MIA”) are presented in section V.B.2 of this document.
DOE's analyses indicate that the proposed energy conservation standards for MREFs would save a significant amount of energy. Relative to the case without amended standards, the lifetime energy savings for MREFs purchased in the 30-year period that begins in the anticipated year of compliance with the amended standards (2029-2058) amount to 0.31 quadrillion British thermal units (“Btu”), or quads.
The cumulative net present value (“NPV”) of total consumer benefits of the proposed standards for MREFs ranges from $0.14 billion (at a 7-percent discount rate) to $0.69 billion (at a 3-percent discount rate). This NPV expresses the estimated total value of future operating cost savings minus the estimated increased product costs for miscellaneous refrigeration products purchased in 2029-2058.
In addition, the proposed standards for MREFs are projected to yield significant environmental benefits. DOE estimates that the proposed standards would result in cumulative emission
DOE estimates the value of climate benefits from a reduction in greenhouse gases (GHG) using four different estimates of the social cost of CO
DOE estimated the monetary health benefits of SO
Table I.3 summarizes the economic benefits and costs expected to result from the proposed standards for miscellaneous refrigeration products. There are other important unquantified effects, including certain unquantified climate benefits, unquantified public health benefits from the reduction of toxic air pollutants, direct PM
The benefits and costs of the proposed standards can also be expressed in terms of annualized values. The monetary values for the total annualized net benefits are (1) the reduced consumer operating costs, minus (2) the increase in product purchase prices and installation costs, plus (3) the value of climate and health benefits of emission reductions, all annualized.
The national operating savings are domestic private U.S. consumer monetary savings that occur as a result
Table I.4 presents the total estimated monetized benefits and costs associated with the proposed standard, expressed in terms of annualized values. The results under the primary estimate are as follows.
Using a 7-percent discount rate for consumer benefits and costs and health benefits from reduced NOx and SO
Using a 3-percent discount rate for all benefits and costs, the estimated cost of the proposed standards is $81.0 million per year in increased equipment costs, while the estimated annual benefits are $123.1 million in reduced operating costs, $28.9 million in monetized climate benefits, and $49.5 million in monetized health benefits. In this case, the monetized net benefit would amount to $120.4 million per year.
DOE's analysis of the national impacts of the proposed standards is described in sections IV.H, IV.K and IV.L of this document.
DOE has tentatively concluded that the proposed standards represent the maximum improvement in energy efficiency that is technologically feasible and economically justified, and would result in the significant conservation of energy. Specifically, with regards to technological feasibility products achieving these standard levels are already commercially available for all product classes covered by this proposal. As for economic justification,
Using a 7-percent discount rate for consumer benefits and costs and NO
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking.
As previously mentioned, the proposed standards are projected to result in estimated national energy savings of 0.31 quad (FFC), the equivalent of the electricity use of 3.4 million homes in one year. In addition, they are projected to reduce GHG emissions. The NPV of consumer benefit for these projected energy savings is $0.14 billion using a discount rate of 7 percent, and $0.69 billion using a discount rate of 3 percent. The cumulative emissions reductions associated with these energy savings are 10.4 Mt of CO
DOE also considered more stringent energy efficiency levels as potential standards and is still considering them in this rulemaking. However, DOE has tentatively concluded that the potential burdens of the more stringent energy efficiency levels would outweigh the projected benefits.
Based on consideration of the public comments DOE receives in response to this document and related information collected and analyzed during the course of this rulemaking effort, DOE may adopt energy efficiency levels presented in this document that are either higher or lower than the proposed standards, or some combination of level(s) that incorporate the proposed standards in part.
The following section briefly discusses the statutory authority underlying this proposed rule, as well as some of the relevant historical background related to the establishment of standards for miscellaneous refrigeration products.
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles which, in addition to identifying particular consumer products and commercial equipment as covered under the statute, permits the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) DOE added MREFs as covered products through a final determination of coverage published in the
The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (
Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(o)(3)(A) and 42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA and when making representations to the public regarding the energy use or efficiency of those products. (42 U.S.C. 6293(c) and 42 U.S.C. 6295(s)) Similarly, DOE must use these test procedures to determine whether the products comply with standards adopted pursuant to EPCA. (42 U.S.C. 6295(s)). The DOE test procedures for miscellaneous refrigeration products appears at 10 CFR part 430, subpart B, appendix A,
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including refrigerators, refrigerator-freezers, and freezers. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy (“Secretary”) determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A) and 6295(o)(3)(B)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3))
Moreover, DOE may not prescribe a standard: (1) for certain products, including refrigerators, refrigerator-freezers, and freezers, if no test procedure has been established for the product, or (2) if DOE determines by rule that the standard is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(A)-(B)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:
(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary considers relevant.
Further, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
EPCA also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))
Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. DOE must specify a different standard level for a type or class of product that has the same function or intended use, if DOE determines that products within such group: (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE must consider such factors as the utility to the consumer of the feature and other factors DOE deems appropriate.
Finally, pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures for miscellaneous refrigeration products address standby mode and off mode energy use. In this rulemaking, DOE intends to incorporate such energy use into any amended energy conservation standards that it may adopt.
DOE added MREFs as covered products through a final determination of coverage published in the
On October 28, 2016, DOE published a direct final rule (the “October 2016 Direct Final Rule”) in which it adopted energy conservation standards for MREFs consistent with the recommendations from a negotiated rulemaking working group established under the Appliance Standards and Rulemaking Federal Advisory Committee. 81 FR 75194. Concurrent with the October 2016 Direct Final Rule, DOE published a NOPR in which it proposed and requested comments on the standards set forth in the direct final rule. 81 FR 74950. On May 26, 2017, DOE published a notice in the
These current standards for MREFs are set forth in DOE's regulations at 10 CFR 430.32(aa)(1)-(2) and are repeated
On December 8, 2020, DOE published a notice that it was initiating an early assessment review to determine whether any new or amended standards would satisfy the relevant requirements of EPCA for a new or amended energy conservation standard for MREFs and a request for information (“RFI”). 85 FR 78964 (“December 2020 Early Assessment Review RFI”).
Comments received following the publication of the December 2020 Early Assessment Review RFI helped DOE identify and resolve issues related to the subsequent preliminary analysis.
DOE received five docket comments in response to the January 2022 Preliminary Analysis from the interested parties listed in Table II.1.
A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product.
On October 12, 2021, DOE published in the
The analysis presented in this NOPR is based on the test procedure as finalized in the October 2021 TP Final Rule, except for the calculation of the change in energy use attributed to icemaker energy use, which aligns with the icemaker energy use in HRF-1-2019. The value of the revised icemaker energy use and the plans to implement this change coincident with the date of future energy conservation standards were discussed at length in the October 2021 TP Final Rule. (
Pursuant to the amendments contained in the Energy Independence and Security Act of 2007 (“EISA 2007”), Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE test procedures for refrigeration products measure the energy use of these products during extended time periods that include periods when the compressor and other key components are cycled off. All of the energy these products use during the “off cycles” is already included in the measurements. 79 FR 22320, 22345. The approach of testing with connected functions on but not connected to a network account for energy consumption of such functions as part of active mode testing, and as a result, this method provides consumers with representative estimates of energy consumption.
In accordance with section 3(a) of 10 CFR part 430, subpart C, appendix A (“appendix A”), DOE notes that it is deviating from the provision in appendix A regarding the pre-NOPR stages for an energy conservation standards rulemaking. Section 6(a)(2) of appendix A states that if the Department determines it is appropriate to proceed with a rulemaking, the preliminary stages of a rulemaking to issue or amend an energy conservation standard that DOE will undertake will be a framework document and preliminary analysis, or an advance notice of proposed rulemaking. For the reasons that follow, DOE finds it appropriate to deviate from this step-in appendix A and to instead publish this NOPR without issuing a framework document. A framework document is intended to introduce and summarize the various analyses DOE conducts during the rulemaking process and requests initial feedback from interested parties. As discussed in the preceding section, prior to this NOPR, DOE issued an early assessment request for information in which DOE identified and sought comment on the analyses conducted in support of the most recent energy conservation standards rulemaking, for which, DOE provided a 75-day comment period. 85 FR 78964, 78965-78966 (Dec. 8, 2020) (the “December 2020 Early Assessment Review RFI”) DOE then issued the January 2022 Preliminary Analysis, seeking further general comments from stakeholders regarding the analyses conducted to support the upcoming standards rulemaking, for which, DOE provided a 60-day comment period for the January 2022 Preliminary Analysis. 87 FR 3229 (Jan. 21, 2022)
As DOE is intending to rely on substantively the same analytical methods as in the most recent rulemaking, publication of a framework document would be largely redundant with the published early assessment RFI and preliminary analysis. As such, DOE is not publishing a framework document.
Section 6(f)(2) of appendix A provides that the length of the public comment period for the NOPR will be at least 75 days. For this NOPR, DOE finds it appropriate to provide a 60-day comment period. As previously discussed, DOE provided a 60-day comment period on January 2022 Preliminary Analysis. 87 FR 3229. DOE subsequently held a public meeting on March 7, 2022, to discuss and received comments on the January 2022 Preliminary Analysis. Consequently, DOE has determined it is appropriate to provide a 60-day comment period on the NOPR, which the Department believes will provide interested parties with a meaningful opportunity to comment on the proposed rule.
DOE developed this proposal after considering oral and written comments, data, and information from interested parties that represent a variety of interests. The following discussion addresses issues raised by these commenters.
When evaluating and establishing energy conservation standards, DOE divides covered products into product classes by the type of energy used or by capacity or other performance-related features that justify differing standards. In making a determination whether a performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE determines are appropriate. (42 U.S.C. 6295(q))
To simplify the structure for presentation of maximum allowable energy use equations, DOE is proposing, for class pairs for which one class includes an icemaker and the other does not, to represent the icemaker energy use adder in a single energy use equation rather than in two separate equations. The product class discussion in section IV below explores this issue further. In addition, DOE is proposing standard levels for a new class covering built-in combination cooler-refrigerator-freezers with a bottom-mounted freezer, both with and without an automatic icemaker, (“combination cooler 5-BI”). This is also discussion in greater detail in section IV of this document.
In 10 CFR 430.2, DOE has established definitions for a variety of refrigeration products, including refrigerators, refrigerator-freezers, freezers, and coolers and combination cooler refrigeration products defined as MREFs. DOE recognizes that there are some products that may, based on their physical and operational characteristics, meet more than one of the definitions in § 430.2. This includes certain combination cooler refrigeration products, such as cooler-refrigerators, cooler-refrigerator-freezers, or cooler-freezers. When standards for miscellaneous refrigeration products were established, they were not established for all potential combination products. Rather, standards were established for combination products that were on the market at the time of the final rule. 81 FR 75194, 75210, 75215-75216 (October 28, 2016). In doing so, DOE anticipated that manufacturers would eventually introduce combination products for which standards were not originally established under § 430.32(aa). In these cases, a particular product could also meet the definition of a refrigerator, refrigerator-freezer, or freezer. To specifically delineate between those products and MREF products currently
In this NOPR, DOE is clarifying that a product that combines a cooler with a refrigerator, refrigerator-freezer, or freezer that otherwise meets the definition of one of those product types in § 430.2 and is not excluded from the definition through coverage by a standard in 10 CFR 430.32(aa) as a miscellaneous refrigeration product, must be tested and certified as a refrigerator, refrigerator-freezer, or freezer according to the applicable test procedure in appendix A or appendix B (with additional instruction addressing the cooler compartment of a cooler-freezer, as applicable—these additional instructions are discussed in section III.C of this document), be certified according to the certification requirements in 10 CFR 429.14, and meet the energy conservation standard for the applicable product class of refrigerator, refrigerator-freezer, or freezer. DOE concludes that the current regulations require this approach for such products and is proposing the changes to the regulatory language simply as clarification.
To ensure this clarification is properly applied, DOE identified potential clarifying amendments to the refrigerator and freezer definitions in § 430.2 that would lead to the appropriate determination of coverage for combination refrigeration products that do not have a prescribed MREF energy conservation standard. In particular, in this NOPR DOE proposes to amend the refrigerator and freezer definitions to clarify that the definitions do apply to products that have a cooler compartment included in addition to the fresh food compartment (for a refrigerator) or freezer compartment (for a freezer). DOE notes that this coverage status is already clear in the refrigerator-freezer definition, which explicitly allows for additional compartments other than the fresh food and freezer compartments, which are defined based on operating temperature, by including allowing the product to have compartments that may operate outside these defined parameters. DOE's proposal would make similar clarifications for the refrigerator and freezer definitions.
DOE requests comment on its proposal to amend the refrigerator and freezer definitions in § 430.2 to clarify that products that would otherwise be considered a refrigerator or a freezer that also include a cooler compartment would be considered a refrigerator or a freezer, unless a miscellaneous refrigeration product energy conservation standard in § 430.32(aa) is applicable for the product.
EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6293) Manufacturers of covered products must use these test procedures to certify to DOE that their product complies with energy conservation standards and to quantify the efficiency of their product. DOE's current energy conservation standards for miscellaneous refrigeration products are expressed in terms of Annual Energy Use, expressed in kWh/year. (See 10 CFR 430.32(a).)
As previously discussed, DOE planned to delay adopting for consumer refrigeration products the revised icemaker energy use adder of 28 kWh/yr that is in AHAM HRF-1-2019—which is the industry test standard—until the compliance date of a possible amended standard. As discussed in the October 2021 TP final rule, DOE determined it would not require testing with the amended icemaker energy use adder until the compliance dates of the next amended energy conservation standards for refrigeration products. 86 FR 56815. Therefore, as discussed previously, this NOPR proposes product classes that implement the 28 kWh/year icemaker adder, consistent with the icemaker energy use in HRF-1-2019, and also proposes to adopt the updated icemaker adder for MREF, to be used on or after the compliance date of revised standards.
As previously discussed, DOE is proposing clarifying amendments to product definitions indicating that products that include a cooler compartment in addition to a fresh food or freezer compartment but do not have an MREF energy conservation standard, would still meet the refrigerator or freezer definitions, as applicable. Additionally, DOE is proposing clarifying amendments to appendix A and appendix B, as it relates to testing combination cooler-freezers as well as testing combination refrigeration products that do not have a prescribed MREF energy conservation standards.
Specifically, DOE is proposing to add sub-sections to appendix A and appendix B to clarify the calculation of average per-cycle energy consumption for combination cooler-freezers and freezers with a cooler compartment, by referring to section 5.9.3 of HRF-1 2019 and stating specific “k” values to be used in equations presented therein. DOE also proposes to amend appendix B section 5.2 to refer to section 5.2 of appendix A when testing freezers with cooler compartments, because the appendix A requirements are more appropriate for products with more than one compartment. Lastly, DOE proposes to amend appendix B by adding a clarification to section 5.3 to specify the value of variable “K” when referencing section 5.8.2 of HRF-1-2019.
ASAP stated in response to the January 2022 Preliminary Analysis that they understand that produce growers with a source of refrigeration likely meet the definition of a cooler but, due to unique components present in a produce grower that maintain an environment with temperature and humidity controls that are conducive to growing plants, produce growers cannot be tested in the same manner as coolers whose primary function is to chill beverage products. NEEA commented on a need for implementing different test procedures for produce growers, citing technology differences between produce growers and other miscellaneous refrigeration products. NEEA stated that test procedures for produce growers should include energy use measurements for cabinet temperature and humidity control systems, water distribution systems, and carbon dioxide injection systems. ASAP and NEEA encouraged DOE to establish test procedures for these products. (ASAP, No. 19, p. 3; NEEA, No. 21, pp. 3-4)
DOE is aware of the produce grower market and appreciates input on this topic. At this point, only GE Appliances, a Haier Company (“GEA”) has submitted a petition for waiver from test procedures covering MREFs. GEA initially also requested an interim waiver. In an initial denial of the petition for interim waiver, DOE tentatively concluded that the GEA model meets the definition of a cooler, because the product consists of a cabinet used with one or more doors, and maintains compartment temperatures no lower than 39 degrees Fahrenheit, as determined when tested in a 90-degree Fahrenheit ambient temperature. 86 FR 35766, 35768 (July 7, 2021). In addition to this, DOE tentatively determined that the requested alternate test procedure
In consideration of the other produce growers mentioned in ASAP's comment—the Viking Under-counter Micro Green & Herb Cabinet—GCV12, the Seedo Automated Home Grow Device, and the Bloom In-Home Grow System—DOE has not received waiver petitions for these products but will consider investigating these products, including whether they may be subject to testing requirements based on meeting the definition of an MREF product, as GEA's product does.
NEEA advocated for the implementation of a test procedure to calculate the energy impact of interior lighting in all miscellaneous refrigeration products. NEEA claims that the use of lighting differs largely depending on manufacturer and personal usage, and with the proliferation of glass doors for coolers, interior lighting plays a large role in energy calculations. (NEEA, No. 21, pp. 4-5)
AHAM states the vast majority of the miscellaneous refrigeration product designs on the market no longer use incandescent lighting and have shifted to light-emitting diode (“LED”) technology, meaning efficiency gains from lighting are limited, and efforts to further regulate lighting options in miscellaneous refrigeration products will place undue burden on manufacturers. (AHAM, No. 18, p. 7)
The test procedure does not include measurement of energy use with lighting turned on. DOE last finalized its test procedure for consumer refrigeration products including MREFs on October 12, 2021. 86 FR 56790. As part of the rulemaking to establish this test procedure, DOE published a request for information (“RFI”) (82 FR 29780) on June 30, 2017, and a NOPR (84 FR 70842) on December 23, 2019. No comments in response to the RFI or NOPR suggested that lighting energy use should be included as part of the test procedure. In the final rule initially establishing the test procedures for MREF on July 18, 2016, DOE indicated that it set the requirement to test these products with light switches in the off position based on field surveys indicating that 90 percent of consumers kept light switches off in coolers. 81 FR 46768, 46782. This requirement was also consistent with the recommendations of the Working Group that negotiated MREF test procedures and energy conservation standards under the auspices of the Appliance Standards and Rulemaking Federal Advisory Committee (“ASRAC”).
In each energy conservation standards rulemaking, DOE conducts a screening analysis based on information gathered on all current technology options and prototype designs that could improve the efficiency of the products or equipment that are the subject of the rulemaking. As the first step in such an analysis, DOE develops a list of technology options for consideration in consultation with manufacturers, design engineers, and other interested parties. DOE then determines which of those means for improving efficiency are technologically feasible. DOE considers technologies incorporated in commercially available products or in working prototypes to be technologically feasible. Sections 6(b)(3)(i) and 7(b)(1) of CFR the Process Rule.
After DOE has determined that particular technology options are technologically feasible, it further evaluates each technology option in light of the following additional screening criteria: (1) practicability to manufacture, install, and service; (2) adverse impacts on product utility or availability; (3) adverse impacts on health or safety, and (4) unique-pathway proprietary technologies. Sections 6(b)(3)(ii)-(v) and 7(b)(2)-(5) of the Process Rule. Section IV.B of this document discusses the results of the screening analysis for miscellaneous refrigeration products, particularly the designs DOE considered, those it screened out, and those that are the basis for the standards considered in this rulemaking. For further details on the screening analysis for this rulemaking, see chapter 4 of the NOPR technical support document (“TSD”).
When DOE proposes to adopt an amended standard for a type or class of covered product, it must determine the maximum improvement in energy efficiency or maximum reduction in energy use that is technologically feasible for such product. (42 U.S.C. 6295(p)(1)) Accordingly, in the engineering analysis, DOE determined the maximum technologically feasible (“max-tech”) improvements in energy efficiency for miscellaneous refrigeration products, using the design parameters for the most efficient products available on the market or in working prototypes. The max-tech levels that DOE determined for this rulemaking are described in section IV.C.1.c of this proposed rule and in chapter 5 of the NOPR TSD.
For each trial standard level (“TSL”), DOE projected energy savings from application of the TSL to miscellaneous refrigeration products purchased in the 30-year period that begins in the year of compliance with the proposed standards (2029-2058).
DOE used its national impact analysis (“NIA”) spreadsheet model to estimate national energy savings (“NES”) from potential amended or new standards for miscellaneous refrigeration products.
To adopt any new or amended standards for a covered product, DOE must determine that such action would result in significant energy savings. (42 U.S.C. 6295(o)(3)(B))
The significance of energy savings offered by a new or amended energy conservation standard cannot be determined without knowledge of the specific circumstances surrounding a given rulemaking.
Accordingly, DOE evaluates the significance of energy savings on a case-by-case basis, taking into account the significance of cumulative FFC national energy savings, the cumulative FFC emissions reductions, health benefits, and the need to confront the global climate crisis, among other factors. DOE has initially determined the energy savings from the proposed standard levels are “significant” within the meaning of 42 U.S.C. 6295(o)(3)(B).
As noted previously, EPCA provides seven factors to be evaluated in determining whether a potential energy conservation standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII)) The following sections discuss how DOE has addressed each of those seven factors in this rulemaking.
In determining the impacts of a potential amended standard on manufacturers, DOE conducts an MIA, as discussed in section IV.J of this document. DOE first uses an annual cash flow approach to determine the quantitative impacts. This step includes both a short-term assessment—based on the cost and capital requirements during the period between when a regulation is issued and when entities must comply with the regulation—and a long-term assessment over a 30-year period. The industry-wide impacts analyzed include (1) INPV, which values the industry on the basis of expected future cash flows, (2) cash flows by year, (3) changes in revenue and income, and (4) other measures of impact, as appropriate. Second, DOE analyzes and reports the impacts on different types of manufacturers, including impacts on small manufacturers. Third, DOE considers the impact of standards on domestic manufacturing employment and manufacturing capacity, as well as the potential for standards to result in plant closures and loss of capital investment. Finally, DOE takes into account cumulative impacts of various DOE regulations and other regulatory requirements on manufacturers.
For individual consumers, measures of economic impact include the changes in LCC and PBP associated with new or amended standards. These measures are discussed further in the following section. For consumers in the aggregate, DOE also calculates the national net present value of the consumer costs and benefits expected to result from particular standards. DOE also evaluates the impacts of potential standards on identifiable subgroups
EPCA requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered products that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) DOE conducts this comparison in its LCC and PBP analysis.
The LCC is the sum of the purchase price of a product (including its installation) and the operating expense (including energy, maintenance, and repair expenditures) discounted over the lifetime of the product. The LCC analysis requires a variety of inputs, such as product prices, product energy consumption, energy prices, maintenance and repair costs, product lifetime, and discount rates appropriate for consumers. To account for uncertainty and variability in specific inputs, such as product lifetime and discount rate, DOE uses a distribution of values, with probabilities attached to each value.
The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost due to a more stringent standard by the change in annual operating cost for the year that standards are assumed to take effect.
For its LCC and PBP analysis, DOE assumes that consumers will purchase the covered products in the first year of compliance with new or amended standards. The LCC savings for the considered efficiency levels are calculated relative to the case that reflects projected market trends in the absence of new or amended standards. DOE's LCC and PBP analysis is discussed in further detail in section IV.F of this document.
Although significant conservation of energy is a separate statutory requirement for adopting an energy conservation standard, EPCA requires DOE, in determining the economic justification of a standard, to consider the total projected energy savings that are expected to result directly from the standard. (42 U.S.C. 6295(o)(2)(B)(i)(III)) As discussed in section III.E, DOE uses the NIA spreadsheet model to project NES.
In establishing product classes and in evaluating design options and the impact of potential standard levels, DOE
EPCA directs DOE to consider the impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from a proposed standard. (42 U.S.C. 6295(o)(2)(B)(i)(V)) It also directs the Attorney General to determine the impact, if any, of any lessening of competition likely to result from a proposed standard and to transmit such determination to the Secretary within 60 days of the publication of a proposed rule, together with an analysis of the nature and extent of the impact. (42 U.S.C. 6295(o)(2)(B)(ii)) DOE will transmit a copy of this proposed rule to the Attorney General with a request that the Department of Justice (“DOJ”) provide its determination on this issue. DOE will publish and respond to the Attorney General's determination in the final rule. DOE invites comment from the public regarding the competitive impacts that are likely to result from this proposed rule. In addition, stakeholders may also provide comments separately to DOJ regarding these potential impacts. See the
DOE also considers the need for national energy and water conservation in determining whether a new or amended standard is economically justified. (42 U.S.C. 6295(o)(2)(B)(i)(VI)) The energy savings from the proposed standards are likely to provide improvements to the security and reliability of the Nation's energy system. Reductions in the demand for electricity also may result in reduced costs for maintaining the reliability of the Nation's electricity system. DOE conducts a utility impact analysis to estimate how standards may affect the Nation's needed power generation capacity, as discussed in section IV.M of this document.
DOE maintains that environmental and public health benefits associated with the more efficient use of energy are important to take into account when considering the need for national energy conservation. The proposed standards are likely to result in environmental and health benefits in the form of reduced emissions of air pollutants and greenhouse gases (“GHGs”) associated with energy production and use. DOE conducts an emissions analysis to estimate how potential standards may affect these emissions, as discussed in section IV.K; the estimated emissions impacts are reported in section I.B.6 of this document. DOE also estimates the economic value of emissions reductions resulting from the considered TSLs, as discussed in section IV.L of this document.
In determining whether an energy conservation standard is economically justified, DOE may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) To the extent DOE identifies any relevant information regarding economic justification that does not fit into the other categories described previously, DOE could consider such information under “other factors.”
As set forth in 42 U.S.C. 6295(o)(2)(B)(iii), EPCA creates a rebuttable presumption that an energy conservation standard is economically justified if the additional cost to the consumer of a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable DOE test procedure. DOE's LCC and PBP analyses generate values used to calculate the effects that proposed energy conservation standards would have on the payback period for consumers. These analyses include, but are not limited to, the 3-year payback period contemplated under the rebuttable presumption test. In addition, DOE routinely conducts an economic analysis that considers the full range of impacts to consumers, manufacturers, the Nation, and the environment, as required under 42 U.S.C. 6295(o)(2)(B)(i). The results of this analysis serve as the basis for DOE's evaluation of the economic justification for a potential standard level (thereby supporting or rebutting the results of any preliminary determination of economic justification). The rebuttable presumption payback calculation is discussed in section IV.F.9 of this proposed rule.
This section addresses the analyses DOE has performed for this rulemaking with regard to miscellaneous refrigeration products. Separate paragraphs address each component of DOE's analyses.
DOE used several analytical tools to estimate the impact of the standards proposed in this document. The first tool is a spreadsheet that calculates the LCC savings and PBP of potential amended or new energy conservation standards. The national impacts analysis uses a second spreadsheet set that provides shipments projections and calculates national energy savings and net present value of total consumer costs and savings expected to result from potential energy conservation standards. DOE uses the third spreadsheet tool, the Government Regulatory Impact Model (“GRIM”), to assess manufacturer impacts of potential standards. These three spreadsheet tools are available on the DOE website for this rulemaking:
DOE received some comments in response to the January 2022 Preliminary Analysis that, rather than addressing specific aspects of the analysis, are general statements regarding the appropriateness of amending energy conservation standards and/or the efficiency levels that might be appropriate.
AHAM stated they support DOE in its efforts to ensure a national marketplace through the Appliance Standards Program. AHAM also stated that amended standards for MREFs may not be justified under EPCA given the relatively low number of shipments in the MREF product category and the limited opportunity for energy savings that result from that fact. AHAM therefore stated, especially given DOE's large backlog of rulemakings (many of which involve products with larger energy savings opportunities), DOE should prioritize other rulemakings. (AHAM, No. 18, p. 1)
While miscellaneous refrigeration products have a smaller number of shipments when compared to refrigerators, refrigerator-freezers, and freezers, (“RFs”), that is not a factor DOE considers in determining when to proceed with reviewing a standard. DOE is mandated by 42 U.S.C. 6295(m)(1) to reconsider energy standards no later than 6 years after issuance of any final rule establishing or amending standards.
DOE develops information in the market and technology assessment that provides an overall picture of the market for the products concerned, including the purpose of the products, the industry structure, manufacturers, market characteristics, and technologies used in the products. This activity includes both quantitative and qualitative assessments, based primarily on publicly available information. The subjects addressed in the market and technology assessment for this rulemaking include (1) a determination of the scope of the rulemaking and product classes, (2) manufacturers and industry structure, (3) existing efficiency programs, (4) shipments information, (5) market and industry trends; and (6) technologies or design options that could improve the energy efficiency of miscellaneous refrigeration products. The key findings of DOE's market assessment are summarized in the following sections. See chapter 3 of the NOPR TSD for further discussion of the market and technology assessment.
In the January 2022 Preliminary Analysis, DOE identified one potential product class modification for miscellaneous refrigeration products. DOE did receive a comment in response to the January 2022 Preliminary Analysis regarding the product class structure, which is addressed.
DOE has identified an opportunity to simplify and consolidate the presentation of maximum allowable energy use for products within product classes that may or may not have an automatic icemaker.
To represent the annual energy consumed by automatic icemakers in MREFs, DOE's test procedures specify a constant energy-use adder of 84 kWh/year (by use of a 0.23 kWh/day adder; see section 5.3(a)(i) of 10 CFR part 430, subpart B, appendix A and section 5.3.(a) of appendix B). With this constant adder, the standard levels for product classes with an automatic icemaker are equal to the standards of their counterparts without an icemaker plus the 84 kWh/year. Consistent with prior discussions in the test procedure rulemaking, this NOPR proposes to amend this equation such that representations made on or after the compliance date of any potential new energy conservation standards, the adder to be used shall change from 84 kWh/yr to 28 kWh/yr. DOE determined as part of the October 2021 TP Final Rule that the revised adder would more accurately reflect energy use during a representative average use cycle. 86 FR 56811. However, DOE indicated that it would not require this change in the test procedure until the date of potential future energy conservation standard amendments.
DOE has concluded that because the standards for the product classes with and without automatic icemakers are effectively the same, except for the constant adder, there is an opportunity to express the maximum allowable energy use for both icemaking and non-icemaking classes with the same equation, thus consolidating the presentation of classes and simplifying the energy conservation standards. The equation would, for those classes that may or may not have an icemaker, include a term equal to the icemaking energy use adder multiplied by a factor that is defined to equal 1 for products with icemakers and to equal zero for products without icemakers. This approach would consolidate the product class structure with a single product class descriptor and maximum energy use equation, while continuing to reflect that products with and without icemakers may have different maximum energy use values.
DOE requests comments on its proposal to consolidate the presentation of maximum allowable energy use for products of classes that may or may not have an automatic icemaker.
Sub Zero stated they are planning to introduce a built-in combination cooler-refrigerator-freezer with bottom-mounted freezer and automatic icemaker. Sub Zero noted, although this configuration is an MREF covered product, it was not on the market in 2016 so a standard level was not set; using the same methodology used to set levels for the eight combination cooler types for which a standard was prescribed, the allowable maximum energy use would be 6.08AV + 302 kWh/yr. Sub Zero stated it is their understanding that they will need to request exception relief from DOE to certify this new product and requested that a future standard level for this product class be set in the upcoming MREF rulemaking. (Sub Zero, No. 17, pp. 2-3)
DOE is proposing energy use levels for the built-in combination cooler-refrigerator-freezer with a bottom-mounted freezer, with and without an automatic icemaker (“combination cooler 5-BI”), as requested by Sub Zero.
DOE requests comment on its proposal to establish energy conservation standards for combination cooler 5-BI using the analysis for combination class 3A as proxy for setting the standard level, based on a baseline efficiency equal to 6.08AV + 218 +28*I kWh/yr, where I is equal to 0 if the model has no automatic icemaker and equal to 1 if it does.
In the preliminary market analysis and technology assessment, DOE identified 37 technology options that would be expected to improve the efficiency of miscellaneous refrigeration products, as measured by the DOE test procedure:
Commenters provided feedback on some of these technology options. These comments are summarized below, along with DOE's responses.
AHAM stated several of the evaluated technology options are impractical or provide limited to no benefit given current manufacturing and design processes past EL 1. However, AHAM did not provide sufficient detail that would enable DOE to revise the listed technology options and subsequent analysis. (AHAM, No. 18, p. 7)
AHAM also cited issues with DOE's use of LED lighting in its analysis, DOE's over-reliance on vacuum-insulated panels (“VIPs”) in its analysis, and an insufficient supply of variable-speed compressors (“VSCs”). Specifically, AHAM states that the widespread use of LED lighting in the market currently means the possible efficiency gains from lighting will be limited. When considering VIPs, AHAM argues that DOE overused VIPs in its analysis in a manner that is not consistent with their current use on the market or overall effectiveness. Finally, AHAM points to the use of VSCs in the higher ELs as risky due to a potential shortfall of supply from manufacturers if they are included in a standards rulemaking as a primary design option for energy efficiency. (AHAM, No. 18, p. 7)
DOE is aware of the widespread use of LED lighting in the market currently. Therefore, lighting technologies were not considered as a technology option in the preliminary analysis. Likewise, they were also not considered in the NOPR analysis.
When considering the impact of VIPs, DOE took into consideration relevant rulemaking analyses for refrigerator, refrigerator-freezer, and freezer classes as a basis for VIP effectiveness as well as manufacturer feedback. With this information, VIP implementation in the NOPR analysis was more limited than in the preliminary analysis. For this analysis VIPs were only implemented partially in the max-tech levels of every directly analyzed class.
The impact of VSCs on the miscellaneous refrigeration product analyses was primarily based on their ability to provide a higher level of efficiency when compared to their single-speed counterparts. As a result of this compressor efficiency increase, they are prevalent in the higher ELs of the efficiency analyses. DOE acknowledges that more stringent standards would likely necessitate adoption of more efficient technologies, such as variable-speed compressors. However, DOE expects that standards, if adopted, would provide sufficient certainty for manufacturers and suppliers to establish additional capacity in the supply chain, if needed.
DOE uses the following five screening criteria to determine which technology options are suitable for further consideration in an energy conservation standards rulemaking:
(1)
(2)
(3)
(4)
(5)
10 CFR part 430, subpart C, appendix A, sections 6(b)(3) and 7(b).
In summary, if DOE determines that a technology, or a combination of technologies, fails to meet one or more of the listed five criteria, it will be excluded from further consideration in the engineering analysis. The reasons for eliminating any technology are discussed in the following sections.
The subsequent sections include comments from interested parties pertinent to the screening criteria, DOE's evaluation of each technology option against the screening analysis criteria, and whether DOE determined that a technology option should be excluded (“screened out”) based on the screening criteria.
In the January 2022 Preliminary Analysis, DOE screened out the following technologies on the basis of technological feasibility, practicability to manufacture, install, and service, adverse impacts on utility or availability, adverse impacts on health or safety, and use of unique-pathway proprietary technologies.
Through a review of each technology, DOE concluded in the preliminary analysis that all of the other identified technologies listed in section IV.A.2 of this document met all five screening criteria to be examined further as design options in DOE's NOPR analysis. In summary, DOE did not screen out the following technology options:
DOE has initially determined that these technology options are technologically feasible because they are being used or have previously been used in commercially available products or working prototypes. DOE also finds that all of the remaining technology options meet the other screening criteria (
DOE received comments regarding the screened-out technologies; relevant comments are addressed.
AHAM agreed with DOE's decision to screen out solid doors as a technology option for the reason that ELs requiring solid doors will result in a significant loss in consumer utility. AHAM also agreed with DOE's decision to screen out Ultra-Low-E Glass Doors for similar reason, in that this technology also prevents the consumer from being able to see clearly into the cabinet. AHAM stated, should DOE include a door technology option in its final analysis for a possible amended standard, that analysis should provide careful justification to ensure that consumer utility and consumer costs are not unduly impacted. (AHAM, No. 18, p. 8)
The CA IOUs urged DOE to reconsider several technologies that they claimed were screened out of the analysis or improperly categorized. These technologies include ultra-low E glass doors, Inert Gas-Filled Glass, vacuum insulated glass, microchannel heat exchangers, and variable speed compressors. In considering ultra-low E glass doors, the CA IOUs request the DOE define an acceptable emissivity that does not significantly hinder visibility while providing energy savings. For inert gas-filled glass, the CA IOUs claim that triple-pane Argon-filled glass with low-e coating is widely available throughout the market and should be considered at lower ELs. Considering vacuum insulated glass, the CA IOUs point to several manufacturers offering the glass for refrigeration applications. Finally, the CA IOUs urged DOE to make more consideration into the implementation of microchannel heat exchangers and VSCs, claiming that their energy benefits were not fully considered in the preliminary analysis. (CA IOUs, No. 20, pp. 4-6)
DOE screened out ultra-low E glass panels due to loss in consumer utility associated with reduced visibility. DOE considers ultra-low E glass panels to be those with at least three glass layers and more than one low E coating. A large portion of the MREF market utilizes transparent glass doors as an option to allow the consumer to see inside the cooler compartment. Despite its ability to improve efficiency, ultra-low E glass reduces visibility into the cooler cabinet. In interviews, manufacturers specifically indicated that they avoid use of glass panels with more than one low E layer due to visibility concerns. DOE did include in its analysis triple-glazed panels with argon fill and one low E layer, consistent with panels that have been observed in available cooler products.
DOE likewise did not consider vacuum insulated glass as it impacts practicability of manufacture, repair, and installation. While it remains available as a technology option for use in refrigeration equipment (
While the CA IOUs claim that five commercial refrigeration manufacturers already have integrated microchannel condenser coils in their equipment outside the MREF product category, DOE has not observed microchannel condensers in any of the products in the teardown analysis for MREFs. DOE notes that microchannel condensers may allow for refrigerant charge reductions and improved heat transfer but known drawbacks to these designs include irregular refrigerant distribution and greater pressure drops on the refrigerant side and air side. Therefore, microchannel condensers may not provide efficiency improvements. Hence, DOE screened out microchannel condensers as a technology option.
Variable speed compressors were included in the NOPR analysis and are implemented in higher-level ELs throughout the analyzed product classes. Published EER levels for VSCs are generally much higher than published EERs for single-speed compressors in the capacity range suitable for compact products, but DOE has not found many MREF products that use VSCs, nor many related compact refrigerators that use VSCs, and thus has little evidence on which to base confident predictions of large efficiency improvements. DOE received a range of estimates of the improvement potential associated with this technology from manufacturers during interviews. DOE believes that its MREF NOPR engineering analysis is representative of performance improvement potential using variable-speed compressors.
The door technology options that remain for increasing the efficiency of miscellaneous refrigeration products include low-e coatings, inert gas fills, additional panes, and frame design changes. Of these options, gas fills, additional panes, and low-e coating were the options implemented in the final EL analyses, with max-tech doors including triple-pane glass, argon gas fill, and a low-e layer on the outermost glass. These options were implemented based on their current use in the market.
DOE seeks further comment on any of the technologies screened out in this NOPR analysis as they were determined to not meet the screening criteria (
The purpose of the engineering analysis is to establish the relationship between the efficiency and cost of miscellaneous refrigeration products. There are two elements to consider in the engineering analysis; the selection of efficiency levels to analyze (
DOE typically uses one of two approaches to develop energy efficiency levels for the engineering analysis: (1) relying on observed efficiency levels in the market (
For the January 2022 Preliminary Analysis, DOE used the physical teardown approach supplemented with a catalog teardown approach for coolers. Several products from the cooler class (compact and standard size) and one product from the combination cooler class C-13A were used in physical teardowns. The physical teardown combination cooler was used to determine manufacturer production costs (“MPCs”) for one analyzed product class (C-13A), but that analysis primarily relied on the engineering conducted for the October 15, 2021, preliminary analysis for consumer refrigerators, refrigerator-freezers, and freezers (86 FR 57378) as the basis for other MPCs and incremental costs.
For this NOPR analysis, DOE chose to analyze classes C-3A and C-9 in addition to the original C-13A. Due to the lack of physical teardown products for these classes, the analysis relied heavily on adjusted analyses from the consumer refrigerators, refrigerator-freezers, and freezers (“RF”) classes 3 and 9. RF product class 3 represents refrigerator-freezers with automatic defrost with top-mounted freezers without an automatic icemaker while RF product class 9 represents upright freezers with automatic defrost without an automatic icemaker. Product class 3 was chosen as a proxy to C-3A due to its similar configuration, and its analysis was able to be adapted relatively easily. Likewise, C-9's analysis used RF product class 9's analysis due to similarities in configuration.
General comments regarding the efficiency analysis are addressed below.
AHAM noted DOE builds its incremental MPC based on a set path of technology options, but there is no standard ordering of technology choice within a single company, let alone across the total industry. AHAM stated DOE should recognize there is limited new technology that would allow for significant per-unit reduction in energy consumption, particularly true of technology options that DOE evaluated to reach efficiency levels beyond EL 1. (AHAM, No. 18, pp. 6-7)
In response, DOE notes that the ordering of technologies is not intended to be aligned with the ordering that would be considered by a single company, nor is it intended to represent the ordering that the total industry would adopt. Instead, it is intended to provide reasonable representation, both of design options used by specific reverse-engineered products, and of an ordering that would prioritize the most cost-effective options, with gradual reductions in cost-effectiveness as the EL increases. Also, the certified data shows that existing products on the market demonstrate significant per-unit reduction in energy consumption. For example, among DOE's tested and reverse-engineered compact coolers was a 3.4 cuft cooler certified with energy use 45% less than the standard, and a 5.1 cuft cooler certified with energy use 49% less than the standard. These levels were EL3 for the preliminary analysis and beyond EL4 for the NOPR analysis, certainly beyond EL1. DOE test results confirmed that their energy use was consistent with the certifications.
CA IOUs stated that in its review of products currently available on the market, it was revealed that the incremental design options may not be the most appropriate (as presented by DOE in Table 5.5.1 of the preliminary TSD) as products on the market contain a combination of technologies DOE has attributed to different ELs. For example, smaller units within the compact category utilize efficiency features affecting the thermal envelope (argon and/or triple-pane glass), whereas larger units can utilize condenser, evaporator, and compressor efficiency features. (CA IOUs, No. 20, pp. 1-2)
When analyzing the models pointed to by CA IOUs, DOE was unable to confirm the efficiency level for one of the provided MREF models, due to the fact it was not listed on the Compliance Certification Database (“CCD”) as of August 2022. The compact model referred to above was located on the CCD system and rated at around 13% lower energy use than baseline; however, the model did not match the CCD rated AV, therefore, the efficiency information may not be up to date. Information regarding the design options used by each model was also limited, with relevant engineering design options absent from promotional
Considering the issues related to gathering information on the specific models referenced in the comment, DOE is unable to point to specific reasoning behind the design options implemented in each model. DOE does note, however, that it considers design options in a manner as described previously: with design options used by specific reverse-engineered products, and of an ordering that prioritizes the most cost-effective options for initial EL steps and gradual reduction in cost-effectiveness as the EL increases.
DOE requests any further input from commenters regarding the approach for design option selection and implementation for a given model, beyond the information DOE has already considered.
In this NOPR analysis, DOE chose to continue using freestanding MREF classes as proxies for built-in classes. DOE's analysis of the current market for miscellaneous refrigeration products showed built-in and freestanding products occupying the same range of efficiencies, and DOE did not identify any unique characteristic that would inhibit efficiency improvements for built-in products relative to freestanding products based on a review on the market. As a result, DOE chose to apply its freestanding products analyses to built-in classes. Several comments were received following the preliminary analysis (which used the same approach) and are addressed below.
According to AHAM, and echoed by Sub Zero and NEEA, freestanding product classes are not a good proxy for built-in product classes, and DOE should evaluate them separately. AHAM stated that DOE's assumption that the products can employ similar technology options in order to achieve higher efficiency levels is fundamentally flawed as built-in designs face difference constraints than freestanding designs. NEEA and Sub Zero both specifically mentioned insulation thickness increases and airflow as a major difference between built-in and freestanding products. (AHAM, No. 18, p. 9; Sub Zero, No. 17, p. 2; NEEA, No. 21, pp. 2-3)
Based on the comments provided, DOE revisited its review of the range of efficiency levels attainable by built-in and freestanding coolers. DOE noted that many products certified as freestanding have installation instructions that provide requirements for both freestanding and built-in installation and are advertised for both installations. DOE found that for such products, the majority of high-efficiency models are advertised as capable of both freestanding and built-in installations. For coolers between 2 and 6 cubic feet, DOE found that all of the most efficient products reviewed (roughly 37% better than baseline or more) were capable of both configurations, whereas some of the products that were less efficient in that adjusted volume range were advertised as freestanding only. This suggests that built-in products are not inhibited in their ability to achieve high efficiencies. For larger coolers between 14 and 16 cubic feet in adjusted volume, DOE found products up to 15% greater than the baseline level that were configurable in both, based on manufacturer instructions. There were a few large cooler products that reached the highest available efficiency reviewed, up to roughly 30% better than baseline, that are advertised as only capable of a freestanding configuration.
DOE also reviewed the depth of the various models considered to determine if models advertised for built-in installation have any clear dimensional limitation that might make achieving high efficiency levels more difficult. DOE was unable to determine a clear correlation between depth and energy use, for any of the models or capacity ranges considered, nor between depth and instructions or advertising for built-in installation. In fact, DOE found that the most efficient freestanding-only model in the large cubic volume range had the smallest depth of all the other models reviewed, suggesting that dimensional restriction on depth was not a key factor relative to the overall unit efficiency.
DOE also observed that the highest efficiency levels for coolers of the built-in class and efficiency levels for freestanding coolers having installation instructions or advertising for both freestanding and built-in installation were at or close to the maximum technology efficiency levels analyzed by DOE. DOE has not been provided evidence that manufacturers are using design options in built-ins other than those that have passed screening for this analysis. There are also no manufacturer comments that suggest other design options have been used to achieve max-tech efficiency levels in built-in products. Hence, DOE concludes built-ins are using the same set of design options as analyzed at max-tech for freestanding classes. Consequently, DOE did not conduct separate analysis for built-in classes.
While DOE chose, in this NOPR analysis, to continue using freestanding classes as proxies for built-in classes, DOE requests additional information regarding the constraints for built-in designs relative to freestanding designs, and the associated specific efficiency and cost impacts.
For each product/equipment class, DOE generally selects a baseline model as a reference point for each class, and measures changes resulting from potential energy conservation standards against the baseline. The baseline model in each product/equipment class represents the characteristics of a product/equipment typical of that class (
For the January 2022 Preliminary Analysis, DOE chose baseline efficiency levels represented by the current Federal energy conservation standards, expressed as maximum annual energy consumption as a function of the product's adjusted volume. The baseline levels differ for coolers and combination coolers to account for design differences; all coolers share the same baseline level,
For this NOPR, DOE kept the cooler baselines the same as the preliminary analysis; the combination cooler baseline has also been kept the same. From these baselines DOE conducted direct analyses for three different AV coolers, and two combination coolers (C-13A, and C-3A). In conducting these analyses, eight teardown units were used in construction of cost curves, and had their characteristics determined in large part by testing and reverse-engineering. Further information on the design characteristics of specific analyzed baseline models is summarized in the NOPR TSD.
For the NOPR analysis, DOE analyzed up to five incremental efficiency levels beyond the baseline for each of the analyzed product classes. The efficiency levels start at EL1, 10% more efficient than the current energy conservation standard. For the compact coolers NOPR analysis, DOE extended the efficiency levels in steps of 10% of the current energy conservation standard up to EL 4; for full-size coolers, EL 4 is analyzed at 35%. For combination coolers (excluding C-9) efficiency levels above EL 1 are in steps of 5% up to EL 4.
DOE conducted analysis for product class C-9 starting with analysis for a class 9 upright freezer with comparable total refrigerated volume. In its analysis, DOE concluded that application of all of the design options being considered at max-tech would be required for the product to be compliant with the current energy conservation standards. Currently, the CCD includes only one product that is certified as C-9—an LG product certified with energy use 17% below the standard. DOE did not purchase, test, and reverse-engineer this product, in-part because of the limited product offering and expected insignificant potential for energy savings for the class. Thus, DOE is relying primarily on its analysis of the RF product class 9 freezer, to suggest that opportunities for energy savings are likely limited and likely not cost-effective, even if improved efficiency is technically feasible. DOE has not analyzed efficiency levels beyond baseline for this product class in this NOPR, but has taken into consideration all design options applied at max-tech in its analysis.
DOE received comments regarding intermediate efficiency levels as shown below.
The CA IOUs expressed concern that the cost analysis performed in the preliminary TSD is overly conservative; the marked drop in calculated benefits between the lower ELs does not accurately reflect the more nuanced state of the market. As such, they suggested DOE implement an intermediate EL, between EL 1 and EL 2, for the Cooler-FC and Cooler-F product classes. They also suggested an intermediate EL between EL 2 and EL 3 for product class C-13A. NEEA voiced similar concerns to CA IOUs and also suggested similar intermediate EL levels for coolers and C-13A. ASAP also urged DOE to consider an intermediate EL for compact coolers between ELs 1 and 2. (CA IOUs, No. 20, pp. 1-2; NEEA, No. 21, pp. 5-6; ASAP, No. 19, pp. 2-3)
In response, DOE notes that the efficiency levels considered in the NOPR analysis differ significantly from those considered in the January 2022 Preliminary Analysis.
ASAP noted, in the preliminary TSD for consumer refrigerators and freezers, DOE estimated a 9-percent improvement in compressor efficiency associated with converting from a single-speed compressor to a VSC with similar rated energy efficiency ratio (“EER”) values, and ASAP stated they expect there to be similar savings for compact coolers. ASAP further noted, however, in the preliminary analysis for the 5.1 cubic foot compact cooler representative unit, DOE appears to show energy savings of only about 2 percent when going from the most efficient single-speed compressor at EL 3 to a VSC and a triple-pane glass pack at EL 4. ASAP therefore stated concern that DOE may be underestimating the energy savings associated with the design options incorporated at EL 4 and urged DOE to ensure that its analysis is appropriately capturing the savings from the incorporation of a VSC. (ASAP, No. 19, p. 2)
When constructing a direct analysis of the 5.1 cubic foot compact cooler DOE considered numerous design options when moving from EL 3 to EL 4. The effect of the triple-pane glass and switch to VSC alone do not contribute to the ultimate percentage difference between El 3 and EL 4. DOE has continued to work with manufacturers in order to accurately create ELs for both coolers and combination coolers that are based on real-world information and energy consumption.
The efficiency levels analyzed for this NOPR beyond the baseline are shown in Table IV.3.
DOE received comments on the implementation of VIPs in its analyses, and the comments are addressed below.
AHAM stated DOE does not account for the limitations of VIPs and that DOE's modeling does not apply VIPs as they would likely be used in actual products and, as a result, overestimates their use and impact in its analysis. AHAM stated DOE should note the following when evaluating the effectiveness of VIPs: covering all sides of an MREF casing in VIPs is not reasonable or a good design practice, there are costs associated with VIPs beyond the price of the panels themselves, a failed VIP in the field cannot be repaired and it will require a total product replacement, and VIPs are not effective for smaller products because of “edge effects.” AHAM stated DOE should further discuss these issues with manufacturers during manufacturer interviews and evaluate more products in order to get a better understanding of the complexities and costs associated with VIPs and update its analysis accordingly. (AHAM, No. 18, pp. 7-8)
In communicating with manufacturers DOE received similar comments relating to decreased effectiveness of VIPs on miscellaneous refrigeration products. For the NOPR analysis DOE aimed to adjust the usage of VIPs in order to provide more accuracy in associated energy savings. More focus was put on increasing efficiency in glass panels, gas fills, and thickness changes when moving up in efficiency levels. Only partial VIP coverage was included in max-tech levels for the NOPR analysis.
ASAP expressed concern that DOE is underestimating the potential savings from upgrading from a single-speed compressor to a VSC by not accounting for the higher EER values of VSCs. ASAP noted that, in the preliminary TSD, DOE states compressors typically present in MREFs have capacities of 300 to 400 Btu per hour, but at a capacity of 300 BTU per hour, for example, even the least efficient VSC has a higher EER than the most efficient single-speed compressor. ASAP further noted that the EER of the most efficient VSC at 300 BTU per hour appears to be about 30 percent higher than the most efficient single-speed compressor. ASAP therefore urged DOE to ensure that its analysis is capturing the improved full-load efficiency of VSCs relative to single-speed compressors. (ASAP, No. 19, p. 1)
In the preliminary analysis, as laid out in figure 5.5.1 in the preliminary TSD, DOE analyzed the capacity and efficiency ratings of numerous VSCs through publicly available compressor performance data. 79 FR 71705. This figure does show that VSCs account for a higher EER when compared to single-speed compressors as capacity (Btu/h) is decreased. However, relating back ASAP's claim relating to 300 Btu/h capacity compressors, manufacturer feedback indicates that these EER efficiency increases are not generally realized when implementing this technology. Manufacturers have reported a wide range of overall efficiency increases associated with use of variable-speed compressors. In in the NOPR analysis DOE considered manufacturer feedback regarding experience with implementing VSC's in order to avoid overestimating efficiency increases. The analysis primarily considers energy savings associated with increased heat exchanger effectiveness associated with lower compressor speed operation and reduced fan speeds, assuming that fans would be operated at reduced speed when operating at low compressor speed. VSCs are generally implemented at higher EL levels throughout the analysis, consistent with their projected cost effectiveness.
DOE seeks comment on the range of VSC nominal efficiencies and the relative overall efficiency gains offered by VSCs when operating at reduced compressor speeds along with reduced fan speeds in MREF products.
The cost analysis portion of the engineering analysis is conducted using one or a combination of cost approaches. The selection of cost approach depends on a suite of factors, including the availability and reliability of public information, characteristics of the regulated product, the availability and timeliness of purchasing the product on the market. The cost approaches are summarized as follows:
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In the present case, DOE conducted the analysis using primarily physical teardowns. Physical teardowns were used to provide a baseline of technology options and their pricing for a specific product class at a specific EL level. Then with technology option information, DOE estimated the cost of various design options including compressors, VIPs, and insulation, by extrapolating the costs from price surveys of relevant refrigerators, refrigerator-freezers, and freezers.
AHAM stated VSC supply is not sufficient to accommodate a standard that requires their use for all MREF products, indicating that this will drive up costs, and further noting that DOE's analysis does not account for these increased costs. AHAM also stated MREFs are enclosed systems and the use of VSCs entails significant redesign costs for those that do not currently employ VSCs, which DOE's analysis also must account for. (AHAM, No. 18, p. 8)
DOE has considered the comments regarding VSC availability and cost of VSC implementation. For this NOPR analysis, DOE estimated the cost of implementing VSCs based on the costs of relevant variable-speed compressors available on the market for other refrigeration products. Regarding component availability, DOE acknowledges that more stringent standards would likely necessitate adoption of more efficient technologies, such as variable-speed compressors. However, DOE expects that standards, if adopted, would provide sufficient time and regulatory certainty for manufacturers and suppliers to establish additional capacity in the supply chain, if needed. Should this NOPR proceed to a final rule, compliance with any amended standards would not be required until 5-years after a final rule is published. DOE expects that this 5-year compliance period provides adequate time for OEMs to sign supply contracts with their compressor suppliers ahead of anticipated demand.
DOE seeks comment on whether manufacturers expect manufacturing capacity constraints would limit product availability to consumers in the timeframe of the amended standard compliance date.
The results of the engineering analysis are presented as cost-efficiency data for each of the efficiency levels for each of the product classes that were analyzed, as well as those extrapolated from a product class with similar cooling capacity and features. DOE developed estimates of MPCs for each unit in the teardown sample, and also performed additional modeling for each of the teardown samples, to develop a comprehensive set of MPCs at each efficiency level. The resulting weighted average incremental MPCs (
DOE seeks comment on the method for estimating manufacturing production costs and on the resulting cost-efficiency curves.
See section VII.E of this document for a list of issues on which DOE seeks comment.
To account for manufacturers' non-production costs and profit margin, DOE applies a multiplier (the manufacturer markup) to the MPC. The resulting manufacturer selling price (“MSP”) is the price at which the manufacturer distributes a unit into commerce. DOE developed an average manufacturer markup by examining the annual Securities and Exchange Commission (“SEC”) 10-K reports
The markups analysis develops appropriate markups (
For MREFs, DOE identified two distribution channels: (1) manufacturers to retailers to consumers, and (2) manufactures to wholesalers to dealers/retailers to consumers. The parties involved in the distribution channel are retailers, wholesalers and dealers.
DOE developed baseline and incremental markups for each actor in the distribution channel. Baseline markups are applied to the price of products with baseline efficiency, while incremental markups are applied to the difference in price between baseline and higher-efficiency models (the incremental cost increase). The incremental markup is typically less than the baseline markup and is designed to maintain similar per-unit operating profit before and after new or amended standards.
DOE relied on economic data from the U.S. Census Bureau to estimate average baseline and incremental markups. Specifically, DOE used the 2017 Annual Retail Trade Survey for the “electronics and appliance stores” sector to develop retailer markups, and the 2017 Annual Wholesale Trade Survey for the “household appliances, and electrical and electronic goods merchant wholesalers” sector to estimate wholesaler markups. DOE recognized that the overall markup in the wholesaler channel should be higher than the direct retailer channel. Considering that most of the wholesalers and dealers/retailers hold special contract in the wholesaler channel, DOE assumed that the dealer/retailer markups are half of the values of the retailer makeups in the direct retailer channel.
DOE requests comment on the assumption used in developing the dealer/retailer markups and welcomes any feedback on the overall markup in the wholesaler channel.
Chapter 6 of the NOPR TSD provides details on DOE's development of markups for MREFs.
The purpose of the energy use analysis is to determine the annual energy consumption of MREFs at different efficiencies in representative U.S. households, and to assess the energy savings potential of increased MREF efficiency. The energy use analysis estimates the range of energy use of MREFs in the field (
DOE determined a range of annual energy use of MREFs as a function of unit volume. DOE developed distributions of adjusted volume of product classes (Table IV.3) with more than one representative unit base on the capacity distributions reported in the TraQline® wine chiller data spanning from 2020 Q1 to 2022 Q1.
DOE requests comment on its methodology to develop market share distributions by adjusted volume in the compliance year for each product class with two representative volumes, as well as data to further inform these distributions in subsequent rounds of this rulemaking.
Chapter 7 of the NOPR TSD provides details on DOE's energy use analysis for MREFs.
DOE conducted the LCC and PBP analyses to evaluate the economic impacts on individual consumers of potential energy conservation standards for MREFs. The effect of new or amended energy conservation standards on individual consumers usually involves a reduction in operating cost and an increase in purchase cost. DOE used the following two metrics to measure consumer impacts:
• The LCC is the total consumer expense of an appliance or product over the life of that product, consisting of total installed cost (manufacturer selling price, distribution chain markups, sales tax, and installation costs) plus operating costs (expenses for energy use, maintenance, and repair). To compute the operating costs, DOE discounts future operating costs to the time of purchase and sums them over the lifetime of the product.
• The PBP is the estimated amount of time (in years) it takes consumers to recover the increased purchase cost (including installation) of a more-efficient product through lower operating costs. DOE calculates the PBP by dividing the change in purchase cost at higher efficiency levels by the change in annual operating cost for the year that amended or new standards are assumed to take effect.
For any given efficiency level, DOE measures the change in LCC relative to the LCC in the no-new-standards case, which reflects the estimated efficiency distribution of MREFs in the absence of new or amended energy conservation standards. In contrast, the PBP for a given efficiency level is measured relative to the baseline product.
NEEA encouraged DOE to calculate and consider the return on investment
DOE acknowledges that ROI is a metric that can be useful in evaluating investments in energy efficiency. However, the measures that DOE has historically used to evaluate the economic impacts of standards on consumers—LCC savings and PBP—are more closely related to the language in EPCA that requires DOE to consider the savings in operating costs throughout the estimated average life of the covered product in the type (or class) compared to any increase in the price of, or in the initial charges for, or maintenance expenses of, the covered product that are likely to result from a standard. (42 U.S.C. 6295(o)(2)(B)(i)(II)) Therefore, DOE finds it reasonable to continue to use those measures.
For each considered efficiency level in each product class, DOE calculated the LCC and PBP for a nationally representative set of housing units. As stated previously, DOE developed household samples based on TraQline wine chiller survey data. The survey panel is weighted against the U.S. Census based on their demographic characteristic to make the sample representative of the U.S. population. The wine chiller survey asked respondents about the product features of the wine chillers they recently purchased, as well as the purchasing channel of the products. To account for the more recent MREF consumers, DOE used the latest two years of survey data (2020 Q1 to 2022 Q1) to construct the household sample used in this NOPR.
For each sample household, DOE determined the energy consumption for the MREF(s) and the appropriate energy price. By developing a representative sample of households, the analysis captured the variability in energy consumption and energy prices associated with the use of MREFs.
Inputs to the calculation of total installed cost include the cost of the product—which includes MPCs, manufacturer markups, retailer and distributor markups, and sales taxes—and installation costs. Inputs to the calculation of operating expenses include annual energy consumption, energy prices and price projections, repair and maintenance costs (if applicable), product lifetimes, and discount rates. DOE created distributions of values for product lifetime, discount rates, and sales taxes, with probabilities attached to each value, to account for their uncertainty and variability.
The computer model DOE uses to calculate the LCC and PBP relies on a Monte Carlo simulation to incorporate uncertainty and variability into the analysis. The Monte Carlo simulations randomly sample input values from the probability distributions and MREF user samples. The model calculated the LCC and PBP for products at each efficiency level for 10,000 housing units per simulation run. The analytical results include a distribution of 10,000 data points showing the range of LCC savings for a given efficiency level relative to the no-new-standards case efficiency distribution. In performing an iteration of the Monte Carlo simulation for a given consumer, product efficiency is chosen based on its probability. If the chosen product efficiency is greater than or equal to the efficiency of the standard level under consideration, the LCC and PBP calculation reveals that a consumer is not impacted by the standard level. By accounting for consumers who already purchase more-efficient products, DOE avoids overstating the potential benefits from increasing product efficiency.
DOE calculated the LCC and PBP for all consumers of MREFs as if each were to purchase a new product in the expected year of required compliance with new or amended standards. New and amended standards would apply to MREFs manufactured 5 years after the date on which any new or amended standard is published. (42 U.S.C. 6295(l)(2)) At this time, DOE estimates publication of a final rule in 2024. Therefore, for purposes of its analysis, DOE used 2029 as the first year of compliance with any amended standards for MREFs.
Table IV.4 summarizes the approach and data DOE used to derive inputs to the LCC and PBP calculations. The paragraphs that follow provide further discussion. Details of the spreadsheet model, and of all the inputs to the LCC and PBP analyses, are contained in chapter 8 of the NOPR TSD and its appendices.
To calculate consumer product costs, DOE multiplied the MSPs developed in the engineering analysis by the markups described previously (along with sales taxes). DOE used different markups for baseline products and higher-efficiency products, because DOE applies an incremental markup to the increase in MSP associated with higher-efficiency products.
Economic literature and historical data suggest that the real costs of many products may trend downward over time according to “learning” or “experience” curves. Experience curve analysis implicitly includes factors such as efficiencies in labor, capital investment, automation, materials prices, distribution, and economies of scale at an industry-wide level.
DOE included variable-speed compressors as a technology option for higher efficiency levels. To develop future prices specific for that technology, DOE applied a different price trend to the controls portion of the variable-speed compressor, which represents part of the price increment when moving from an efficiency level achieved with the highest efficiency single-speed compressor to an efficiency level with variable-speed compressor. DOE used PPI data on “semiconductors and related device manufacturing” between 1967 and 2021 to estimate the historic price trend of electronic components in the control.
AHAM noted that any declining costs are due to value engineering and/or productivity improvements, and agreed with DOE's decision not to use a price learning curve in the preliminary analysis. AHAM also stated that MREFs are not identical to refrigerators and freezers, and therefore DOE should not apply the learning curve from the refrigerators, refrigerator-freezers, and freezers rulemaking analysis. (AHAM, No. 18, p. 6) On the other hand, NEEA, ASAP and the CA IOUs, encouraged DOE to incorporate a price learning curve. ASAP and the CA IOUs expressed concern that assuming constant prices will result in overestimating the cost to achieve higher efficiency levels in the assumed compliance year and beyond and suggested the use of price data from consumer refrigerators to inform the development of an appropriate learning rate for MREFs, as many of the same design options are used for MREFs. (NEEA, No. 21, pp. 4-5, ASAP, No. 19 at p. 3, CA IOUs, No. 20, pp. 2-4).
As discussed earlier, in this NOPR DOE developed a price learning based on the historical refrigerator and freezer PPI and the cumulative production estimated specifically for MREFs, assuming that the refrigerator and freezer PPI is representative of MREFs. Given that similar design options are considered for units in higher efficiency levels as for consumer refrigerators, DOE also considered a separate price learning for the controls portion of the variable-speed compressor in MREFs at higher efficiency levels. DOE is requesting comment on this approach.
Installation cost includes labor, overhead, and any miscellaneous materials and parts needed to install the product. DOE is not aware of any data that suggest the cost of installation changes as a function of efficiency for MREFs. DOE therefore assumed that installation costs are the same regardless of EL and do not impact the LCC or PBP. As a result, DOE did not include installation costs in the LCC and PBP analysis.
DOE determined the energy consumption for MREFs at different efficiency levels using the approach described previously in section IV.E of this document.
Because marginal electricity price more accurately captures the incremental savings associated with a change in energy use from higher efficiency, it provides a better representation of incremental change in consumer costs than average electricity prices. Therefore, DOE applied average electricity prices for the energy use of the product purchased in the no-new-standards case, and marginal electricity prices for the incremental change in energy use associated with the other efficiency levels considered.
DOE derived electricity prices in 2021 using data from EEI Typical Bills and Average Rates reports. Based upon comprehensive, industry-wide surveys, this semi-annual report presents typical monthly electric bills and average kilowatt-hour costs to the customer as charged by investor-owned utilities. For the residential sector, DOE calculated electricity prices using the methodology described in Coughlin and Beraki (2018).
To estimate energy prices in future years, DOE multiplied the 2021 energy prices by the projection of annual average price changes from the Reference case in
Repair costs are associated with repairing or replacing product components that have failed in an appliance; maintenance costs are associated with maintaining the operation of the product. Typically, small incremental increases in product efficiency produce no, or only minor, changes in repair and maintenance costs compared to baseline efficiency
For MREFs, DOE used lifetime estimates from products that operate using the same refrigeration technology: covered refrigerators and refrigerator-freezers. DOE assumed a maximum lifetime of 40 years for all product classes and an average lifetime of 10.3 years for compact coolers and 17.3 years for full-size coolers. DOE also assumed that the probability function for the annual survival of MREFs would take the form of a Weibull distribution. See chapter 8 of the NOPR TSD for a more detailed discussion.
DOE requests comment and data on the assumptions and methodology used to calculate MREF survival probabilities.
In the calculation of LCC, DOE applies discount rates appropriate to households to estimate the present value of future operating cost savings. DOE estimated a distribution of residential discount rates for MREFs based on consumer financing costs and the opportunity cost of consumer funds.
DOE applies weighted average discount rates calculated from consumer debt and asset data, rather than marginal or implicit discount rates.
To establish residential discount rates for the LCC analysis, DOE identified all relevant household debt or asset classes in order to approximate a consumer's opportunity cost of funds related to appliance energy cost savings. It estimated the average percentage shares of the various types of debt and equity by household income group using data from the Federal Reserve Board's Survey of Consumer Finances (SCF) for 1995, 1998, 2001, 2004, 2007, 2010, 2013, 2016, and 2019.
To accurately estimate the share of consumers that would be affected by a potential energy conservation standard at a particular efficiency level, DOE's LCC analysis considered the projected distribution (market shares) of product efficiencies under the no-new-standards case (
In the January 2022 Preliminary Analysis, DOE estimated the energy efficiency distribution of MREFs for 2029 using model counts from DOE's CCD. DOE assumed that the distribution of models was equivalent to the distribution of products sold. AHAM commented that the distribution DOE obtained through this approach did not reflect the shipment breakdown by efficiency seen in the market and submitted shipment data by product class and efficiency level collected from its members to illustrate the discrepancy between the CCD data and the AHAM efficiency distributions. (AHAM, No. 18, p. 2-5)
DOE appreciates AHAM's data submission and, for this NOPR, DOE is using the efficiency distribution by product class as provided by AHAM. DOE understands that this approach inherently assumes that the rest of the MREF market has a similar distribution of efficiencies. However, due to lack of efficiency data from non-AHAM members, DOE is not able to verify whether this assumption is incorrect. For this analysis, DOE also assumed that the current distribution of product efficiencies would remain constant in 2029, and during the analysis period, in the no-new-standards case.
The estimated market shares for the no-new-standards case for MREFs are shown in Table IV.5 of this document. See chapter 8 of the NOPR TSD for further information on the derivation of the efficiency distributions.
DOE requests comment and data on its efficiency distribution assumptions and projection into future years. Specifically, DOE is requesting comment and data on the efficiency distribution of non-AHAM members, to more accurately derive the efficiency distribution for the whole MREF market.
The payback period is the amount of time it takes the consumer to recover the additional installed cost of more-efficient products, compared to baseline products, through energy cost savings. Payback periods are expressed in years. Payback periods that exceed the life of the product mean that the increased total installed cost is not recovered in reduced operating expenses.
The inputs to the PBP calculation for each efficiency level are the change in total installed cost of the product and the change in the first-year annual operating expenditures relative to the baseline. The PBP calculation uses the same inputs as the LCC analysis, except that discount rates are not needed.
As noted previously, EPCA establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the first year's energy savings resulting from the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii)) For each considered efficiency level, DOE determined the value of the first year's energy savings by calculating the energy savings in accordance with the applicable DOE test procedure, and multiplying those savings by the average energy price projection for the year in which compliance with the amended standards would be required.
DOE uses projections of annual product shipments to calculate the national impacts of potential amended or new energy conservation standards on energy use, NPV, and future manufacturer cash flows.
DOE defined two broad MREF product categories (coolers, and combination cooler refrigeration products) and developed models to estimate shipments for each category. DOE used various data and assumptions to develop the shipments for each product class considered in this rulemaking.
Given the limited available data sources on historical shipments of coolers, DOE assumed a penetration rate of 13.3 percent in the U.S. households based on online surveys
AHAM commented that the methodology DOE used to develop shipments in the preliminary analysis was based on findings of a Lawrence Berkeley National Laboratory (“LBNL”) study taken place nine years ago and that DOE should improve its data collection effort and consider other data sources. AHAM conducted another data collection among its members for 2021 shipments by product class in response to DOE's comment regarding AHAM shipments from the RFI (AHAM, No. 18 at p. 2-5). A separate confidential shipment data submission disaggregated by product class and capacity was provided by AHAM along with its comment.
AHAM stated that the data they provided for 2021 shipments by product class and efficiency varies substantially from the data and assumptions in DOE's aforementioned shipments analysis (AHAM, No. 18 at p. 2). Furthermore, AHAM asserted that the bulk of the market lies at lower efficiency levels, its membership represents a majority of the market, and shipments are significantly lower than what DOE is projecting. Finally, AHAM noted that DOE should further investigate other data sources to collect accurate information from non-AHAM members (including NPD,
DOE appreciates the shipments data submitted by AHAM, which were disaggregated by product class and efficiency. As discussed earlier in this NOPR, DOE used the efficiency distributions by product class to match those submitted by AHAM. DOE also assumed that the market share of each product class (in relation to the total MREF shipments) matched the market shares provided by AHAM. To estimate total MREF shipments, DOE utilized the AHAM shipments data and AHAM-member information and reviewed the TraQline data from 2020 Q1 to 2022 Q1 to estimate non-AHAM-member
DOE is requesting comment on this approach and welcomes comment and data related to the total MREF shipments, MREF shipments by product class, and the non-AHAM-member shipments.
The NIA assesses the NES and the NPV from a national perspective of total consumer costs and savings that would be expected to result from new or amended standards at specific efficiency levels.
DOE evaluates the impacts of new or amended standards by comparing a case without such standards with standards case projections. The no-new-standards case characterizes energy use and consumer costs for each product class in the absence of new or amended energy conservation standards. For this projection, DOE considers historical trends in efficiency and various forces that are likely to affect the mix of efficiencies over time. DOE compares the no-new-standards case with projections characterizing the market for each product class if DOE adopted new or amended standards at specific energy efficiency levels (
DOE uses a model coded in the Python programming language to calculate the energy savings and the national consumer costs and savings from each TSL and presents the results in the form of a spreadsheet. Interested parties can review DOE's analyses by changing various input quantities within the spreadsheet. The NIA spreadsheet model uses typical values (as opposed to probability distributions) as inputs.
Table IV.6 summarizes the inputs and methods DOE used for the NIA analysis for the NOPR. Discussion of these inputs and methods follows the table. See chapter 10 of the NOPR TSD for further details.
A key component of the NIA is the trend in energy efficiency projected for the no-new-standards case and each of the standards cases. Section IV.F.8 of this document describes how DOE developed an energy efficiency distribution for the no-new-standards case (which yields a shipment-weighted average efficiency) for each of the considered product classes for the year of anticipated compliance with an amended standard.
For the standards cases, DOE used a “roll up” scenario to establish the shipment-weighted efficiency for the year that standards are assumed to become effective (2029). In this scenario, the market shares of products in the no-new-standards case that do not meet the standard under consideration would “roll up” to meet the new standard level, and the market share of products above the standard would remain unchanged.
In the absence of data on trends in efficiency, DOE assumed no efficiency trend over the analysis period for both the no-new-standards and standards cases. For a given case, market shares by efficiency level were held fixed to their 2029 distribution. DOE requests comment on its assumption of no efficiency trend and seeks historical product efficiency data.
The NES analysis involves a comparison of national energy consumption of the considered products between each potential standards case (TSL) and the case with no new or amended energy conservation standards. DOE calculated the national energy consumption by multiplying the number of units (stock) of each product (by vintage or age) by the unit energy consumption (also by vintage). DOE calculated annual NES based on the difference in national energy consumption for the no-new standards case and for each higher efficiency standard case. DOE estimated energy consumption and savings based on site
Use of higher-efficiency products is occasionally associated with a direct rebound effect, which refers to an increase in utilization of the product due to the increase in efficiency. DOE did not find any data on the rebound effect specific to MREFs that would indicate that consumers would alter their utilization of their product as a result of an increase in efficiency. MREFs are typically plugged in and operate continuously; therefore, DOE assumed a rebound rate of 0.
In 2011, in response to the recommendations of a committee on “Point-of-Use and Full-Fuel-Cycle Measurement Approaches to Energy Efficiency Standards” appointed by the National Academy of Sciences, DOE announced its intention to use FFC measures of energy use and greenhouse gas and other emissions in the national impact analyses and emissions analyses included in future energy conservation standards rulemakings. 76 FR 51281 (Aug. 18, 2011). After evaluating the approaches discussed in the August 18, 2011 notice, DOE published a statement of amended policy in which DOE explained its determination that EIA's National Energy Modeling System (NEMS) is the most appropriate tool for its FFC analysis and its intention to use NEMS for that purpose. 77 FR 49701 (Aug. 17, 2012). NEMS is a public domain, multi-sector, partial equilibrium model of the U.S. energy sector
The inputs for determining the NPV of the total costs and benefits experienced by consumers are (1) total annual installed cost, (2) total annual operating costs (energy costs and repair and maintenance costs), and (3) a discount factor to calculate the present value of costs and savings. DOE calculates net savings each year as the difference between the no-new-standards case and each standards case in terms of total savings in operating costs versus total increases in installed costs. DOE calculates operating cost savings over the lifetime of each product shipped during the projection period.
As discussed in section IV.F.1 of this document, DOE developed MREF price trends based on an experience curve calculated using historical PPI data. DOE applied the same trends to project prices for each product class at each considered efficiency level. By 2058, which is the end date of the projection period, the average price of single-speed compressor MREFs is projected to drop 14 percent and the average price of MREFs with a variable-speed compressor is projected to drop about 15 percent relative to 2029, the compliance year. DOE's projection of product prices is described in appendix 10C of the NOPR TSD.
To evaluate the effect of uncertainty regarding the price trend estimates, DOE investigated the impact of different product price projections on the consumer NPV for the considered TSLs for MREFs. In addition to the default price trend, DOE considered high and low- price- decline sensitivity cases. For the single-speed compressor MREFs and the non-variable- speed controls portion of MREFs, DOE estimated the high price decline and the low- price- decline scenarios based on household refrigerator and home freezer PPI data limited to the period between the period 1989-2008 and 2009-2021, respectively. For the variable-speed controls portion of MREFs, DOE estimated the high price decline and the low- price- decline scenarios based on an exponential trend line fit of the semiconductor PPI between the period 1994-2021 and 1967-1993, respectively. The derivation of these price trends and the results of these sensitivity cases are described in appendix 10C of the NOPR TSD.
The operating cost savings are energy cost savings, which are calculated using the estimated energy savings in each year and the projected price of the appropriate form of energy. To estimate energy prices in future years, DOE multiplied the average regional energy prices by the projection of annual national-average residential energy price changes in the Reference case from
In calculating the NPV, DOE multiplies the net savings in future years by a discount factor to determine their present value. For this NOPR, DOE estimated the NPV of consumer benefits using both a 3-percent and a 7-percent real discount rate. DOE uses these discount rates in accordance with guidance provided by the Office of Management and Budget (OMB) to Federal agencies on the development of regulatory analysis.
In analyzing the potential impact of new or amended energy conservation standards on consumers, DOE evaluates the impact on identifiable subgroups of consumers that may be disproportionately affected by a new or amended national standard. The purpose of a subgroup analysis is to determine the extent of any such disproportional impacts. DOE evaluates impacts on particular subgroups of consumers by analyzing the LCC impacts and PBP for those particular consumers from alternative standard levels.
For this NOPR, DOE analyzed the impacts of the considered standard levels on senior-only households. DOE did not consider low-income consumers in this NOPR because MREFs are not products generally used by this subgroup, as they typically cost more than comparable compact refrigerators, which are able to maintain lower temperatures compared to MREFs, and therefore serve a wider range of applications. The analysis used a subset of the TraQline consumer sample composed of households that meet the criteria for this subgroup. DOE used the LCC and PBP spreadsheet model to
DOE requests comment on the subgroup analysis for MREF products, and specifically whether to any significant extent these products are in use by smaller or comparatively lower-income, small businesses. DOE is also interested in understanding the number of potential small business purchasers of MREFs that would be impacted at DOE's proposed TSL 4 and how such impacts may be different than those of the overall samples.
DOE performed an MIA to estimate the financial impacts of amended energy conservation standards on manufacturers of MREFs and to estimate the potential impacts of such standards on direct employment and manufacturing capacity. The MIA has both quantitative and qualitative aspects and includes analyses of projected industry cash flows, the INPV, investments in research and development (“R&D”) and manufacturing capital, and domestic manufacturing employment. Additionally, the MIA seeks to determine how amended energy conservation standards might affect manufacturing employment, capacity, and competition, as well as how standards contribute to overall regulatory burden. Finally, the MIA serves to identify any disproportionate impacts on manufacturer subgroups, including small business manufacturers.
The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash flow model with inputs specific to this rulemaking. The key GRIM inputs include data on the industry cost structure, unit production costs, product shipments, manufacturer markups, and investments in R&D and manufacturing capital required to produce compliant products. The key GRIM outputs are the INPV, which is the sum of industry annual cash flows over the analysis period, discounted using the industry-weighted average cost of capital, and the impact to domestic manufacturing employment. The model uses standard accounting principles to estimate the impacts of more stringent energy conservation standards on a given industry by comparing changes in INPV and domestic manufacturing employment between a no-new-standards case and the various standards cases. To capture the uncertainty relating to manufacturer pricing strategies following amended standards, the GRIM estimates a range of possible impacts under different scenarios.
The qualitative part of the MIA addresses manufacturer characteristics and market trends. Specifically, the MIA considers such factors as a potential standard's impact on manufacturing capacity, competition within the industry, the cumulative impact of other DOE and non-DOE, Federal regulations, and impacts on manufacturer subgroups. The complete MIA is outlined in chapter 12 of the NOPR TSD.
DOE conducted the MIA for this rulemaking in three phases. In Phase 1 of the MIA, DOE prepared a profile of the MREF manufacturing industry based on the market and technology assessment and publicly available information. This included a top-down analysis of MREF manufacturers that DOE used to derive preliminary financial inputs for the GRIM (
In Phase 2 of the MIA, DOE prepared a framework industry cash flow analysis to quantify the potential impacts of amended energy conservation standards. The GRIM uses several factors to determine a series of annual cash flows starting with the announcement of the standard and extending over a 30-year period following the compliance date of the standard. These factors include annual expected revenues, costs of sales, SG&A and R&D expenses, taxes, and capital expenditures. In general, energy conservation standards can affect manufacturer cash flow in three distinct ways: (1) creating a need for increased investment, (2) raising production costs per unit, and (3) altering revenue due to higher per-unit prices and changes in sales volumes.
In addition, during Phase 2, DOE developed interview guides to distribute to manufacturers of MREFs in order to develop other key GRIM inputs, including product and capital conversion costs, and to gather additional information on the anticipated effects of energy conservation standards on revenues, direct employment, capital assets, industry competitiveness, and manufacturer subgroups.
In Phase 3 of the MIA, DOE conducted structured, detailed interviews with representative manufacturers. During these interviews, DOE discussed engineering, manufacturing, procurement, and financial topics to validate assumptions used in the GRIM and to identify key issues or concerns. See section IV.J.3 of this document for a description of the key issues raised by manufacturers during the interviews. As part of Phase 3, DOE also evaluated subgroups of manufacturers that may be disproportionately impacted by amended standards or that may not be accurately represented by the average cost assumptions used to develop the industry cash flow analysis. Such manufacturer subgroups may include small business manufacturers, low-volume manufacturers, niche players, and/or manufacturers exhibiting a cost structure that largely differs from the industry average. DOE identified one subgroup for a separate impact analysis: small business manufacturers. The small business subgroup is discussed in section VI.B, “Review under the Regulatory Flexibility Act” and in chapter 12 of the NOPR TSD.
DOE uses the GRIM to quantify the changes in cash flow due to amended standards that result in a higher or lower industry value. The GRIM uses a standard, annual discounted cash flow analysis that incorporates manufacturer costs, manufacturer markups, shipments, and industry financial
The GRIM calculates cash flows using standard accounting principles and compares changes in INPV between the no-new-standards case and each standards case. The difference in INPV between the no-new-standards case and a standards case represents the financial impact of the amended energy conservation standard on manufacturers. As discussed previously, DOE developed critical GRIM inputs using a number of sources, including publicly available data, results of the engineering analysis and shipments analysis, and information gathered from industry stakeholders during the course of manufacturer interviews. The GRIM results are presented in section I.B.2. Additional details about the GRIM, the discount rate, and other financial parameters can be found in chapter 12 of the NOPR TSD.
Manufacturing more efficient equipment is typically more expensive than manufacturing baseline equipment due to the use of more complex components, which are typically more costly than baseline components. The changes in the MPCs of covered products can affect the revenues, gross margins, and cash flow of the industry. For a complete description of the MPCs, see chapter 5 of the NOPR TSD or section IV.C of this document.
The GRIM estimates manufacturer revenues based on total unit shipment projections and the distribution of those shipments by efficiency level. Changes in sales volumes and efficiency mix over time can significantly affect manufacturer finances. For this analysis, the GRIM uses the NIA's annual shipment projections derived from the shipments analysis from 2023 (the NOPR publication year) to 2058 (the end year of the analysis period). See chapter 9 of the NOPR TSD for additional details or section IV.G of this document.
Amended energy conservation standards could cause manufacturers to incur conversion costs to bring their production facilities and equipment designs into compliance. DOE evaluated the level of conversion-related expenditures that would be needed to comply with each considered efficiency level in each product class. For the MIA, DOE classified these conversion costs into two major groups: (1) product conversion costs; and (2) capital conversion costs. Product conversion costs are investments in research, development, testing, marketing, and other non-capitalized costs necessary to make product designs comply with amended energy conservation standards. Capital conversion costs are investments in property, plant, and equipment necessary to adapt or change existing production facilities such that new compliant product designs can be fabricated and assembled.
DOE based its estimates of the product conversion costs necessary to meet the varying efficiency levels on information from manufacturer interviews, the design paths analyzed in the engineering analysis, the prior MREF rulemaking analysis, and market share and model count information. 81 FR 75194. Generally, manufacturers indicated a preference to meet amended standards with design options that were direct and relatively straight forward component swaps. However, at higher efficiency levels, manufacturers anticipated the need for platform redesigns. Efficiency levels that significantly altered cabinet construction would require very large investments to update designs. Manufacturers noted that increasing foam thickness would require complete redesign of the cabinet, liner, and shelving due to loss of interior volume. Additionally, extensive use of VIPs would require redesign of the cabinet to maximize the benefits of VIPs.
DOE relied on information from manufacturer interviews and the engineering analysis to evaluate the level of capital conversion costs would likely incur at the considered standard levels. During interviews, manufacturers provided estimates and descriptions of the required tooling changes that would be necessary to upgrade product lines to meet the various efficiency levels. Based on these inputs, DOE modeled incremental capital conversion costs for efficiency levels that could be reached with individual components swaps. However, based on feedback, DOE modeled higher capital conversion costs when manufacturers would have to redesign their existing product platforms. DOE used information from manufacturer interviews to determine the cost of the manufacturing equipment and tooling necessary to implement complete redesigns.
Increases in foam thickness require either reductions to interior volume or increases to exterior volume. Many MREFs are sized to fit standard widths, meaning any increase in foam thickness would likely result in the loss of interior volume. Additionally, many MREFs are sized to maximize storage of specific products (
To minimize reductions to interior volume, manufacturers may choose to adopt VIP technology. Extensive incorporation of VIPs into designs require significant upfront capital due to differences in the handling, storing, and manufacturing of VIPs as compared to typical polyurethane foams. VIPs are relatively fragile and must be protected from punctures and rough handling. If VIPs have leaks of any size, the panel will eventually lose much of its thermal insulative properties and structural strength. If already installed within a cabinet wall, a punctured VIP may significantly reduce the structural strength of the MREF cabinet. As a result, VIPs require careful handling and installation. Manufacturers noted the need to allocate special warehouse space in order to ensure the VIPs are not jostled or roughly handled in the manufacturing environment. VIPs require significantly more warehouse space than polyurethane foams. The application of VIPs can be difficult and may require investment in hard-tooling or robotic systems to ensure the panels are positioned properly within the cabinet or door. Manufacturers noted that producing cabinets with VIPs are much more labor and time intensive than producing cabinets with typical polyurethane foams and the increase in
To develop industry conversion cost estimates, DOE estimated the number of product platforms in DOE's CCD
DOE acknowledges that manufacturers may follow different design paths to reach the various efficiency levels analyzed. An individual manufacturer's investments depend on a range of factors, including the company's current product offerings and product platforms, existing production facilities and infrastructure, and make vs. buy decisions for products. DOE's conversion cost methodology incorporated feedback from all manufacturers that took part in interviews and extrapolated industry values. While industry average values may not represent any single manufacturer, DOE's modeling provides reasonable estimates of industry-level investments.
In general, DOE assumes all conversion-related investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the new standard. The conversion cost figures used in the GRIM can be found in section V.B.2 of this document. For additional information on the estimated capital and product conversion costs, see chapter 12 of the NOPR TSD.
MSPs include direct manufacturing production costs (
Under the preservation of gross margin percentage scenario, DOE applied a single uniform “gross margin percentage” across all efficiency levels, which assumes that manufacturers would be able to maintain the same amount of profit as a percentage of revenues at all efficiency levels within a product class. As manufacturer production costs increase with efficiency, this scenario implies that the per-unit dollar profit will increase. DOE assumed a gross margin percentage of 20 percent for freestanding compact coolers and 28 percent for all other product classes.
In the preservation of operating profit scenario, as the cost of production goes up under a standards case, manufacturers are generally required to reduce their manufacturer markups to a level that maintains base-case operating profit. DOE implemented this scenario in the GRIM by lowering the manufacturer markups at each TSL to yield approximately the same earnings before interest and taxes in the standards case as in the no-new-standards case in the year after the expected compliance date of the amended standards. The implicit assumption behind this scenario is that the industry can only maintain its operating profit in absolute dollars after the standard takes effect.
A comparison of industry financial impacts under the two scenarios is presented in section V.B.2.a of this document.
DOE interviewed manufacturers including domestic-based and foreign-based original equipment manufacturers (“OEMs”) as well as importers. Participants included manufacturers offering a range of product classes, including both freestanding and built-in designs.
In interviews, DOE asked manufacturers to describe their major concerns regarding potential increases in energy conservation standards for MREFs. The following section highlights manufacturer concerns that helped inform the projected potential impacts of an amended standard on the industry. Manufacturer interviews are conducted under non-disclosure agreements (“NDAs”), so DOE does not document these discussions in the same way that it does public comments in the comment summaries and DOE's responses throughout the rest of this document.
In interviews, some manufacturers expressed concerns about the ongoing supply chain constraints related to sourcing high-quality components (
Some manufacturers urged DOE to conduct a separate analysis for built-in product classes. These manufacturers noted that built-in MREFs face design constraints related to standardized installation dimensions (
In response to the January 2022 Preliminary Analysis, AHAM asserted that achieving additional energy savings beyond EL 1—particularly for built-in product classes—would require significant redesign of product platforms and retooling. Specifically for built-in products, AHAM asserted that given the low shipment volumes, the significant investment required to meet more stringent efficiencies would lead to significant degradation in INPV. (AHAM, No. 18, pp. 6, 9). AHAM also asserted that any efficiency levels that necessitate changes in chassis size would result in costly changes to tooling. (AHAM, No. 18, p. 6).
As discussed in section IV.J.2.c, DOE relied on multiple sources, including manufacturer feedback from interviews, to estimate conversion costs for each of the analyzed efficiency levels. See Table V.20 for DOE's capital and product conversion cost estimates. See chapter 12 of the NOPR TSD for INPV results by product grouping.
The emissions analysis consists of two components. The first component estimates the effect of potential energy conservation standards on power sector and site (where applicable) combustion emissions of CO
The analysis of electric power sector emissions of CO
FFC upstream emissions, which include emissions from fuel combustion during extraction, processing, and transportation of fuels, and “fugitive” emissions (direct leakage to the atmosphere) of CH
The emissions intensity factors are expressed in terms of physical units per MWh or MMBtu of site energy savings. For power sector emissions, specific emissions intensity factors are calculated by sector and end use. Total emissions reductions are estimated using the energy savings calculated in the NIA.
DOE's no-new-standards case for the electric power sector reflects the
SO
However, beginning in 2016, SO
CSAPR also established limits on NO
The MATS limit mercury emissions from power plants, but they do not include emissions caps and, as such, DOE's energy conservation standards would be expected to slightly reduce Hg emissions. DOE estimated mercury emissions reduction using emissions factors based on
As part of the development of this proposed rule, for the purpose of complying with the requirements of Executive Order 12866, DOE considered the estimated monetary benefits from the reduced emissions of CO
On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the Federal government's emergency motion for stay pending appeal of the February 11, 2022, preliminary injunction issued in
DOE estimates the monetized benefits of the reductions in emissions of CO
DOE exercises its own judgment in presenting monetized climate benefits as recommended by applicable Executive Orders, and DOE would reach the same conclusion presented in this proposed rulemaking in the absence of the social cost of greenhouse gases, including the February 2021 Interim Estimates presented by the Interagency Working Group on the Social Cost of Greenhouse Gases. DOE estimated the global social benefits of CO
The SC-GHGs estimates presented here were developed over many years, using transparent process, peer reviewed methodologies, the best science available at the time of that process, and with input from the public. Specifically, in 2009, the IWG, that included the DOE and other executive branch agencies and offices was established to ensure that agencies were using the best available science and to promote consistency in the social cost of carbon (SC-CO
On January 20, 2021, President Biden issued E.O. 13990, which re-established the IWG and directed it to ensure that the U.S. Government's estimates of the social cost of carbon and other greenhouse gases reflect the best available science and the recommendations of the National Academies (2017). The IWG was tasked with first reviewing the SC-GHG estimates currently used in Federal analyses and publishing interim estimates within 30 days of the E.O. that reflect the full impact of GHG emissions, including by taking global damages into account. The interim SC-GHG estimates published in February 2021 are used here to estimate the climate benefits for this proposed rulemaking. The E.O. instructs the IWG to undertake a fuller update of the SC-GHG estimates by January 2022 that takes into consideration the advice of the National Academies (2017) and other recent scientific literature. The February 2021 SC-GHG TSD provides a complete discussion of the IWG's initial review conducted under E.O.13990. In particular, the IWG found that the SC-GHG estimates used under E.O. 13783 fail to reflect the full impact of GHG emissions in multiple ways.
First, the IWG found that the SC-GHG estimates used under E.O. 13783 fail to fully capture many climate impacts that affect the welfare of U.S. citizens and residents, and those impacts are better reflected by global measures of the SC-GHG. Examples of omitted effects from the E.O. 13783 estimates include direct effects on U.S. citizens, assets, and investments located abroad, supply chains, U.S. military assets and interests abroad, and tourism, and spillover pathways such as economic and political destabilization and global migration that can lead to adverse impacts on U.S. national security, public health, and humanitarian concerns. In addition, assessing the benefits of U.S. GHG mitigation activities requires consideration of how those actions may affect mitigation activities by other countries, as those international mitigation actions will provide a benefit to U.S. citizens and residents by mitigating climate impacts that affect U.S. citizens and residents. A wide range of scientific and economic experts have emphasized the issue of reciprocity as support for considering global damages of GHG emissions. If the United States does not consider impacts on other countries, it is difficult to convince other countries to consider the impacts of their emissions on the United States. The only way to achieve an efficient allocation of resources for emissions reduction on a global basis—and so benefit the U.S. and its citizens—is for all countries to base their policies on global estimates of damages. As a member of the IWG involved in the development of the February 2021 SC-GHG TSD, DOE agrees with this assessment and, therefore, in this proposed rule DOE centers attention on a global measure of SC-GHG. This approach is the same as that taken in DOE regulatory analyses from 2012 through 2016. A robust estimate of climate damages that accrue only to U.S. citizens and residents does not currently exist in the literature. As explained in the February 2021 TSD, existing estimates are both incomplete and an underestimate of total damages that accrue to the citizens and residents of the U.S. because they do not fully capture the regional interactions and spillovers discussed above, nor do they include all of the important physical, ecological, and economic impacts of climate change recognized in the climate change literature. As noted in the February 2021 SC-GHG TSD, the IWG will continue to review developments in the literature, including more robust methodologies for estimating a U.S.-specific SC-GHG value, and explore ways to better inform the public of the full range of carbon impacts. As a member of the IWG, DOE will continue to follow developments in the literature pertaining to this issue.
Second, the IWG found that the use of the social rate of return on capital (7 percent under current OMB Circular A-4 guidance) to discount the future benefits of reducing GHG emissions inappropriately underestimates the impacts of climate change for the purposes of estimating the SC-GHG. Consistent with the findings of the National Academies (2017) and the economic literature, the IWG continued to conclude that the consumption rate of interest is the theoretically appropriate discount rate in an intergenerational context,
Furthermore, the damage estimates developed for use in the SC-GHG are estimated in consumption-equivalent terms, and so an application of OMB Circular A-4's guidance for regulatory analysis would then use the consumption discount rate to calculate the SC-GHG. DOE agrees with this assessment and will continue to follow developments in the literature
As a member of the IWG involved in the development of the February 2021 SC-GHG TSD, DOE agrees with this assessment and will continue to follow developments in the literature pertaining to this issue. While the IWG works to assess how best to incorporate the latest, peer reviewed science to develop an updated set of SC-GHG estimates, it set the interim estimates to be the most recent estimates developed by the IWG prior to the group being disbanded in 2017. The estimates rely on the same models and harmonized inputs and are calculated using a range of discount rates. As explained in the February 2021 SC-GHG TSD, the IWG has recommended that agencies to revert to the same set of four values drawn from the SC-GHG distributions based on three discount rates as were used in regulatory analyses between 2010 and 2016 and subject to public comment. For each discount rate, the IWG combined the distributions across models and socioeconomic emissions scenarios (applying equal weight to each) and then selected a set of four values recommended for use in benefit-cost analyses: an average value resulting from the model runs for each of three discount rates (2.5 percent, 3 percent, and 5 percent), plus a fourth value, selected as the 95th percentile of estimates based on a 3 percent discount rate. The fourth value was included to provide information on potentially higher-than-expected economic impacts from climate change. As explained in the February 2021 SC-GHG TSD, and DOE agrees, this update reflects the immediate need to have an operational SC-GHG for use in regulatory benefit-cost analyses and other applications that was developed using a transparent process, peer reviewed methodologies, and the science available at the time of that process. Those estimates were subject to public comment in the context of dozens of proposed rulemakings as well as in a dedicated public comment period in 2013.
There are a number of limitations and uncertainties associated with the SC-GHG estimates. First, the current scientific and economic understanding of discounting approaches suggests discount rates appropriate for intergenerational analysis in the context of climate change are likely to be less than 3 percent, near 2 percent or lower.
DOE's derivations of the SC-GHG (SC-CO
The SC-CO
For 2051 to 2070, DOE used estimates published by EPA, adjusted to 2020$.
DOE multiplied the CO
The SC-CH
DOE multiplied the CH
For this NOPR analysis, DOE estimated the monetized value of NO
DOE multiplied the site emissions reduction (in tons) in each year by the associated $/ton values, and then discounted each series using discount rates of 3 percent and 7 percent as appropriate.
The utility impact analysis estimates the changes in installed electrical capacity and generation projected to result for each considered TSL. The analysis is based on published output from the NEMS associated with
The output of this analysis is a set of time-dependent coefficients that capture the change in electricity generation, primary fuel consumption, installed capacity and power sector emissions due to a unit reduction in demand for a given end use. These coefficients are multiplied by the stream of electricity savings calculated in the NIA to provide estimates of selected utility impacts of potential new or amended energy conservation standards.
DOE considers employment impacts in the domestic economy as one factor in selecting a proposed standard. Employment impacts from new or amended energy conservation standards include both direct and indirect impacts. Direct employment impacts are any changes in the number of employees of manufacturers of the products subject to standards. The MIA addresses those impacts. Indirect employment impacts are changes in national employment that occur due to the shift in expenditures and capital investment caused by the purchase and operation of more-efficient appliances. Indirect employment impacts from standards consist of the net jobs created or eliminated in the national economy, other than in the manufacturing sector being regulated, caused by (1) reduced spending by consumers on energy, (2) reduced spending on new energy supply by the utility industry, (3) increased consumer spending on the products to which the new standards apply and other goods and services, and (4) the effects of those three factors throughout the economy.
One method for assessing the possible effects on the demand for labor of such shifts in economic activity is to compare sector employment statistics developed by BLS. BLS regularly publishes its estimates of the number of jobs per million dollars of economic activity in different sectors of the economy, as well as the jobs created elsewhere in the economy by this same economic activity. Data from BLS indicate that expenditures in the utility sector generally create fewer jobs (both directly and indirectly) than expenditures in other sectors of the economy.
DOE estimated indirect national employment impacts for the standard levels considered in this NOPR using an input/output model of the U.S. economy called Impact of Sector Energy Technologies version 4 (“ImSET”).
DOE notes that ImSET is not a general equilibrium forecasting model, and that the uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Because ImSET does not incorporate price changes, the employment effects predicted by ImSET may over-estimate actual job impacts over the long run for this rule. Therefore, DOE used ImSET only to generate results for near-term timeframes (2029-2033), where these uncertainties are reduced. For more details on the employment impact analysis, see chapter 16 of the NOPR TSD.
The following section addresses the results from DOE's analyses with respect to the considered energy conservation standards for MREFs. It addresses the TSLs examined by DOE, the projected impacts of each of these levels if adopted as energy conservation standards for MREFs, and the standards levels that DOE is proposing to adopt in this NOPR. Additional details regarding DOE's analyses are contained in the NOPR TSD supporting this document.
In general, DOE typically evaluates potential amended standards for products and equipment by grouping individual efficiency levels for each class into TSLs. Use of TSLs allows DOE to identify and consider manufacturer cost interactions between the product classes, to the extent that there are such interactions, and market cross elasticity from consumer purchasing decisions that may change when different standard levels are set.
In the analysis conducted for this NOPR, DOE analyzed the benefits and burdens of five TSLs for MREFs. DOE developed TSLs that combine efficiency levels for each analyzed product class. These TSLs were developed by combining specific efficiency levels for each of the MREF product classes analyzed by DOE. TSL 1 represents a 10 percent increase in efficiency, corresponding to the lowest analyzed efficiency level above the baseline for each analyzed product class. TSL 2 represents efficiency levels consistent with Energy Star requirements for coolers and a modest increase in efficiency for certain combination cooler product classes. TSL 3 increases the efficiency for freestanding (FC) and built-in (BIC) coolers by an additional 10% compared to TSL 1, while maintaining the same efficiency levels as TSL 2 for combination coolers. TSL 4 further increases the efficiency levels for the product classes that make up the vast majority of MREF shipments (FCC, FC, C-13A). TSL 5 represents max-tech for each product class. DOE presents the
Table V.1 presents the TSLs and the corresponding efficiency levels that DOE has identified for potential amended energy conservation standards for MREFs.
DOE analyzed the economic impacts on MREF consumers by looking at the effects that potential amended standards at each TSL would have on the LCC and PBP. DOE also examined the impacts of potential standards on selected consumer subgroups. These analyses are discussed in the following sections.
In general, higher-efficiency products affect consumers in two ways: (1) purchase price increases and (2) annual operating costs decrease. Inputs used for calculating the LCC and PBP include total installed costs and operating costs (
Table V.2 through Table V.17 show the LCC and PBP results for the TSLs considered for each product class. In the first of each pair of tables, the simple payback is measured relative to the baseline product. In the second table, impacts are measured relative to the efficiency distribution in the no-new-standards case in the compliance year (see section IV.F.8 of this document). Because some consumers purchase products with higher efficiency in the no-new-standards case, the average savings are less than the difference between the average LCC of the baseline product and the average LCC at each TSL. The savings refer only to consumers who are affected by a standard at a given TSL. Those who already purchase a product with efficiency at or above a given TSL are not affected. Consumers for whom the LCC increases at a given TSL experience a net cost.
In the consumer subgroup analysis, DOE estimated the impact of the considered TSLs on senior-only households. DOE did not consider low-income consumers in this NOPR because MREFs are not products generally used by this subgroup, as they typically cost more than comparable compact refrigerators, which are able to maintain lower temperatures compared to MREFs, and therefore serve a wider range of applications. Table V.18 compares the average LCC savings and PBP at each TSL for the senior-only consumer subgroup with similar metrics for the entire consumer sample for all product classes. In most cases, the average LCC savings and PBP for senior-only households at the considered efficiency levels are improved (
As discussed in section IV.F.9, EPCA establishes a rebuttable presumption that an energy conservation standard is economically justified if the increased purchase cost for a product that meets the standard is less than three times the value of the first year's energy savings resulting from the standard. In calculating a rebuttable presumption payback period for each of the considered TSLs, DOE used discrete values, and, as required by EPCA, based the energy use calculation on the DOE test procedure for MREFs, with
Table V.19 presents the rebuttable presumption payback periods for the considered TSLs for MREFs. While DOE examined the rebuttable presumption criterion, it considered whether the proposed standard levels considered for the NOPR are economically justified through a more detailed analysis of the economic impacts of those levels, pursuant to 42 U.S.C. 6295(o)(2)(B)(i), that considers the full range of impacts to the consumer, manufacturer, Nation, and environment. The results of that analysis serve as the basis for DOE to definitively evaluate the economic justification for a potential standard level, thereby supporting or rebutting the results of any preliminary determination of economic justification.
DOE performed an MIA to estimate the impact of amended energy conservation standards on manufacturers of MREFs. The following section describes the expected impacts on manufacturers at each considered TSL. Chapter 12 of the NOPR TSD explains the analysis in further detail.
In this section, DOE provides GRIM results from the analysis, which examines changes in the industry that would result from a standard. The following tables summarize the estimated financial impacts (represented by changes in INPV) of potential amended energy conservation standards on manufacturers of MREFs, as well as the conversion costs that DOE estimates manufacturers of MREFs would incur at each TSL.
The impact of potential amended energy conservation standards were analyzed under two scenarios: (1) the preservation of gross margin percentage; and (2) the preservation of operating profit, as discussed in section IV.J.2.d of this document. The preservation of gross margin percentages applies a “gross margin percentage” of 20 percent for freestanding compact coolers and 28 percent for all other product classes, across all efficiency levels.
The preservation of operating profit scenario reflects manufacturers' concerns about their inability to maintain margins as MPCs increase to reach more stringent efficiency levels. In this scenario, while manufacturers make the necessary investments required to convert their facilities to produce compliant products, operating profit does not change in absolute dollars and decreases as a percentage of revenue. The preservation of operating profit scenario results in the lower (or more severe) bound to impacts of potential amended standards on industry.
Each of the modeled scenarios results in a unique set of cash flows and corresponding INPV for each TSL. INPV is the sum of the discounted cash flows to the industry from the NOPR publication year through the end of the analysis period (2023-2058). The “change in INPV” results refer to the difference in industry value between the no-new-standards case and standards case at each TSL. To provide perspective on the short-run cash flow impact, DOE includes a comparison of free cash flow between the no-new-standards case and the standards case at each TSL in the year before amended standards would take effect. This figure provides an understanding of the magnitude of the required conversion costs relative to the cash flow generated by the industry in the no-new-standards case.
Conversion costs are one-time investments for manufacturers to bring their manufacturing facilities and product designs into compliance with potential amended standards. As described in section IV.J.2.c of this document, conversion cost investments occur between the year of publication of the final rule and the year by which manufacturers must comply with the new standard. The conversion costs can have a significant impact on the short-term cash flow on the industry and generally result in lower free cash flow in the period between the publication of the final rule and the compliance date of potential amended standards. Conversion costs are independent of the manufacturer markup scenarios and are not presented as a range in this analysis.
The following cash flow discussion refers to product classes as defined in Table I.1 in section I of this document and the efficiency levels and design options as detailed in Table IV.1 in section IV.C of this document.
At TSL 1, the standard represents the lowest analyzed efficiency level above baseline for all product classes (EL 1). The change in INPV is expected to range from −4.1 to −3.7 percent. At this level, free cash flow is estimated to decrease by 33.0 percent compared to the no-new-standards case value of $55.3 million in the year 2028, the year before the standards year. Currently, approximately 24 percent of domestic MREF shipments meet the efficiencies required at TSL 1.
At TSL 1, DOE analyzed implementing various design options for the range of directly analyzed product classes. These design options could include implementing more efficient single-speed compressors, tube and fin evaporators and/or condensers, among other technologies. At this level, capital conversion costs are minimal since most manufacturers can achieve TSL 1 efficiencies with relatively simple component changes. Product conversion costs may be necessary for developing, qualifying, sourcing, and testing more efficient components. DOE estimates capital conversion costs of $1.2 million and product conversion costs of $52.4 million. Conversion costs total $53.6 million.
At TSL 1, the shipment-weighted average MPC for all MREFs is expected to increase by 0.8 percent relative to the no-new-standards case shipment-weighted average MPC for all MREFs in 2029. Given the relatively small increase in production costs, DOE does not project a notable drop in shipments in the year the standard takes effect. In the preservation of gross margin percentage scenario, the minor increase in cashflow from the higher MSP is slightly outweighed by the $53.6 million in conversion costs, causing a slightly negative change in INPV at TSL 1 under this scenario. Under the preservation of operating profit scenario, manufacturers earn the same per-unit operating profit as would be earned in the no-new-standards case, but manufacturers do not earn additional profit from their investments. In this scenario, the manufacturer markup decreases in 2030, the year after the analyzed compliance year. This reduction in the manufacturer markup and the $53.6 million in conversion costs incurred by manufacturers cause a slightly negative change in INPV at TSL 1 under the preservation of operating profit scenario.
At TSL 2, the standard represents efficiency levels consistent with Energy Star requirements for coolers and a modest increase in efficiency for certain combination cooler product classes. The change in INPV is expected to range from −6.3 to −4.8 percent. At this level, free cash flow is estimated to decrease by 45.7 percent compared to the no-new-standards case value of $55.3 million in the year 2028, the year before the standards year. Currently, approximately 11.5 percent of domestic MREF shipments meet the efficiencies required at TSL 2.
The design options DOE analyzed for most product classes include implementing similar design options as TSL 1, such as more efficient single-speed compressors. For built-in coolers, the analyzed design options also include implementing variable-speed compressors and increased insulation thickness. For freestanding compact coolers, C-13A and C-13A-bi, TSL 2 corresponds to EL 2. For built-in compact coolers and built-in coolers, TSL 2 corresponds to EL 3. For the remaining product classes, the efficiencies required at TSL 2 are the same as TSL 1. The increase in conversion costs compared to TSL 1 are largely driven by the higher efficiencies required for built-in coolers, which account for 3 percent of MREF shipments. For products that do not meet this level, increasing insulation thickness would likely mean new cabinets, liners, and fixtures as well as new shelf designs. Implementing variable-speed compressors could require more advanced controls and electronics and new test stations. DOE estimates capital conversion costs of $6.2 million and product conversion costs of $66.4 million. Conversion costs total $72.6 million.
At TSL 2, the shipment-weighted average MPC for all MREFs is expected to increase by 4.2 percent relative to the no-new-standards case shipment-weighted average MPC for all MREFs in 2029. Given the projected increase in production costs, DOE expects an estimated 4 percent drop in shipments in the year the standard takes effect relative to the no-new-standards case. In the preservation of gross margin percentage scenario, the slight increase in cashflow from the higher MSP is outweighed by the $72.6 million in conversion costs, causing a slightly negative change in INPV at TSL 2 under this scenario. Under the preservation of operating profit scenario, the manufacturer markup decreases in 2030, the year after the analyzed compliance year. This reduction in the manufacturer markup and the $72.6 million in conversion costs incurred by manufacturers cause a negative change in INPV at TSL 2 under the preservation of operating profit scenario.
At TSL 3, the standard represents an increase in efficiency for freestanding and built-in coolers by additional 10 percent as compared to TSL 1, while maintaining the same efficiency levels as TSL 2 for combination coolers. The change in INPV is expected to range from −6.0 to −4.8 percent. At this level, free cash flow is estimated to decrease by 43.1 percent compared to the no-new-standards case value of $55.3 million in the year 2028, the year before the standards year. Currently, approximately 5.3 percent of domestic MREF shipments meet the efficiencies required at TSL 3.
At this level, DOE analyzed similar design options as TSL 1 and TSL 2, such as implementing incrementally more efficient single-speed compressors. For all product classes except freestanding coolers and built-in coolers, the efficiencies required at TSL 3 are the same as TSL 2. For freestanding coolers, TSL 3 corresponds to EL 2. For built-in coolers, TSL 3 reflects a lower efficiency
At TSL 3, the shipment-weighted average MPC for all MREFs is expected to increase by 3.9 percent relative to the no-new-standards case shipment-weighted average MPC for all MREFs in 2029. Given the projected increase in production costs, DOE expects an estimated 4 percent drop in shipments in the year the standard takes effect relative to the no-new-standards case. In the preservation of gross margin percentage scenario, the slight increase in cashflow from the higher MSP is outweighed by the $70.0 million in conversion costs, causing a slightly negative change in INPV at TSL 3 under this scenario. Under the preservation of operating profit scenario, the manufacturer markup decreases in 2030, the year after the analyzed compliance year. This reduction in the manufacturer markup and the $70.0 million in conversion costs incurred by manufacturers cause a slightly negative change in INPV at TSL 3 under the preservation of operating profit scenario.
At TSL 4, the standard reflects an increase in efficiency level for the product classes that make up the vast majority of MREF shipments (FCC, FC, C-13A). The change in INPV is expected to range from −12.1 to −8.4 percent. At this level, free cash flow is estimated to decrease by 82.8 percent compared to the no-new-standards case value of $55.3 million in the year 2028, the year before the standards year. Currently, approximately 3.4 percent of domestic MREF shipments meet the efficiencies required at TSL 4.
For all product classes except built-in coolers, C-3A and C-3A-BI, TSL 4 corresponds to EL 3. For built-in coolers, TSL 4 corresponds to EL 2. For C-3A-BI, TSL 4 corresponds to EL 1. For C-3A, the efficiencies required at TSL 4 are the same as TSL 3 (EL 1). At this level, conversion costs are largely driven by the efficiencies required for freestanding coolers, which accounts for approximately 12 percent of industry shipments. DOE's shipments analysis estimates that no freestanding cooler shipments currently meet the efficiencies required at TSL 4. All manufacturers would need to update their product platforms, which could include increasing insulation thickness and implementing variable-speed compressors. Increasing insulation thickness would likely result in the loss of interior volume and would require redesign of the cabinet as well as the designs and tooling associated with the interior of the product, such as the liner, shelving, racks, and drawers. DOE estimates capital conversion costs of $25.8 million and product conversion costs of $101.1 million. Conversion costs total $126.9 million.
At TSL 4, the shipment-weighted average MPC for all MREFs is expected to increase by 10.0 percent relative to the no-new-standards case shipment-weighted average MPC for all MREFs in 2029. Given the projected increase in production costs, DOE expects an estimated 10 percent drop in shipments in the year the standard takes effect relative to the no-new-standards case. In the preservation of gross margin percentage scenario, the increase in cashflow from the higher MSP is outweighed by the $126.9 million in conversion costs and the drop in annual shipments, causing a negative change in INPV at TSL 4 under this scenario. Under the preservation of operating profit scenario, the manufacturer markup decreases in 2030, the year after the analyzed compliance year. This reduction in the manufacturer markup, the $126.9 million in conversion costs incurred by manufacturers, and the drop in annual shipments cause a negative change in INPV at TSL 4 under the preservation of operating profit scenario.
At TSL 5, the standard represents the max-tech efficiency levels for all product classes. The change in INPV is expected to range from −51.9 to −38.2 percent. At this level, free cash flow is estimated to decrease by 406.0 percent compared to the no-new-standards case value of $55.3 million in the year 2028, the year before the standards year. Currently, approximately 2.7 percent of domestic MREF shipments meet the efficiencies required at TSL 5.
DOE's shipments analysis estimates that no shipments meet the efficiencies required across all product classes except for built-in compact coolers, which account for only 4 percent of industry shipments. A max-tech standard would necessitate significant investment to redesign nearly all product platforms and incorporate design options such as the most efficient variable-speed compressors, triple-pane glass, increased foam insulation thickness, and VIP technology. Capital conversion costs may be necessary for new tooling for VIP placement as well as new testing stations for high-efficiency components. Increasing insulation thickness would likely result in the loss of interior volume and would require redesign of the cabinet as well as the designs and tooling associated with the interior of the product, such as the liner, shelving, racks, and drawers. Product conversion costs at max-tech are significant as manufacturers work to completely redesign their product platforms. For products implementing VIPs, product conversion costs may be necessary for prototyping and testing for VIP placement, design, and sizing. Manufacturers implementing triple-pane glass may need to redesign the door frame and hinges to support the added thickness and weight. DOE estimates capital conversion costs of $174.5 million and product conversion costs of $364.5 million. Conversion costs total $539.0 million.
At TSL 5, the large conversion costs result in a free cash flow dropping below zero in the years before the standards year. The negative free cash flow calculation indicates manufacturers may need to access cash reserves or outside capital to finance conversion efforts.
At TSL 5, the shipment-weighted average MPC for all MREFs is expected to increase by 32.7 percent relative to the no-new-standards case shipment-weighted average MPC for all MREFs in 2029. Given the projected increase in production costs, DOE expects an estimated 20 percent drop in shipments in the year the standard takes effect relative to the no-new-standards case. In the preservation of gross margin percentage scenario, the increase in cashflow from the higher MSP is outweighed by the $539.0 million in conversion costs and drop in annual shipments, causing a significant negative change in INPV at TSL 5 under this scenario. Under the preservation of operating profit scenario, the manufacturer markup decreases in 2030, the year after the analyzed compliance year. This reduction in the manufacturer markup, the $539.0 million in conversion costs incurred by manufacturers, and the drop in annual shipments cause a significant decrease in INPV at TSL 5 under the preservation of operating profit scenario.
DOE seeks comments, information, and data on the capital conversion costs and product conversion costs estimated for each TSL.
To quantitatively assess the potential impacts of amended energy conservation standards on direct employment in the MREF industry, DOE used the GRIM to estimate the domestic labor expenditures and number of direct employees in the no-new-standards case and in each of the standards cases during the analysis period. DOE calculated these values using statistical data from the 2020
Labor expenditures related to product manufacturing depend on the labor intensity of the product, the sales volume, and an assumption that wages remain fixed in real terms over time. The total labor expenditures in each year are calculated by multiplying the total MPCs by the labor percentage of MPCs. The total labor expenditures in the GRIM were then converted to total production employment levels by dividing production labor expenditures by the average fully burdened wage multiplied by the average number of hours worked per year per production worker. To do this, DOE relied on the
The number of production employees is then multiplied by the U.S. labor percentage to convert total production employment to total domestic production employment. The U.S. labor percentage represents the industry fraction of domestic manufacturing production capacity for the covered product. This value is derived from manufacturer interviews, product database analysis, and publicly available information. DOE estimates that 7.8 percent of MREFs are produced domestically.
The domestic production employees estimate covers production line workers, including line supervisors, who are directly involved in fabricating and assembling products within the OEM facility. Workers performing services that are closely associated with production operations, such as materials handling tasks using forklifts, are also included as production labor. DOE's estimates only account for production workers who manufacture the specific products covered by this proposed rulemaking.
Non-production workers account for the remainder of the direct employment figure. The non-production employees estimate covers domestic workers who are not directly involved in the production process, such as sales, engineering, human resources, and management. Using the amount of domestic production workers calculated above, non-production domestic employees are extrapolated by multiplying the ratio of non-production workers in the industry compared to production employees. DOE assumes that this employee distribution ratio remains constant between the no-new-standards case and standards cases.
Using the GRIM, DOE estimates in the absence of amended energy conservation standards there would be 228 domestic workers for MREFs in 2029. Table V.21 shows the range of the impacts of energy conservation standards on U.S. manufacturing employment in the MREF industry. The following discussion provides a qualitative evaluation of the range of potential impacts presented in Table V.21.
The direct employment impacts shown in Table V.21 represent the potential domestic employment changes that could result following the compliance date for the MREF product classes in this proposal. The upper bound estimate corresponds to a change in the number of domestic workers that would result from amended energy conservation standards if manufacturers continue to produce the same scope of covered products within the United States after compliance takes effect. The lower bound estimate represents the maximum decrease in production workers if manufacturing moved to lower labor-cost countries. At lower TSLs, DOE believes the likelihood of changes in production location due to amended standards are low due to the relatively minor production line updates required. However, as amended standards increase in stringency and both the complexity and cost of production facility updates increases, manufacturers are more likely to revisit their production location decisions and/or their make vs. buy decisions.
Additional detail on the analysis of direct employment can be found in chapter 12 of the NOPR TSD. Additionally, the employment impacts discussed in this section are independent of the employment impacts from the broader U.S. economy, which are documented in chapter 16 of the NOPR TSD.
In interviews, manufacturers noted that the majority of MREFs—namely freestanding compact coolers—are manufactured in Asia and rebranded by home appliance manufacturers. Manufacturers had few concerns about
Some low-volume domestic and European-based OEMs offer niche or high-end MREFs (
DOE seeks comment on whether manufacturers expect manufacturing capacity constraints would limit product availability to consumers in the timeframe of the amended standard compliance date (2029).
Using average cost assumptions to develop industry cash flow estimates may not capture the differential impacts among subgroups of manufacturers. Small manufacturers, niche players, or manufacturers exhibiting a cost structure that differs substantially from the industry average could be affected disproportionately. DOE investigated small businesses as a manufacturer subgroup that could be disproportionally impacted by energy conservation standards and could merit additional analysis.
DOE analyzes the impacts on small businesses in a separate analysis in section VI.B of this document as part of the Regulatory Flexibility Analysis. The manufacturers of the products covered in this rulemaking have a primary North American Industry Classification System (“NAICS”) code of 335220: “Major Household Appliance Manufacturing” or a secondary NAICS code of 333415: “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” The Small Business Administration (“SBA”) defines a small business as a company that has fewer than 1,500 employees and fewer than 1,250 employees for NAICS codes 335220 and 333415, respectively. DOE used the higher threshold of 1,500 employees to identify small business manufacturers. Based on this classification, DOE identified two domestic OEMs that qualify as small businesses. For a discussion of the impacts on the small business manufacturer subgroup, see the Regulatory Flexibility Analysis in section VI.B of this document and chapter 12 of the NOPR TSD.
One aspect of assessing manufacturer burden involves looking at the cumulative impact of multiple DOE standards and the product-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
For the cumulative regulatory burden analysis, DOE examines Federal, product-specific regulations that could affect MREF manufacturers that take effect approximately three years before or after the 2029 compliance date.
In addition to the rulemakings listed in Table V.29, DOE has ongoing rulemakings for other products or equipment that MREF manufacturers produce, including but not limited to automatic commercial ice makers;
DOE requests information regarding the impact of cumulative regulatory burden on manufacturers of MREFs associated with multiple DOE standards or product-specific regulatory actions of other Federal agencies.
This section presents DOE's estimates of the NES and the NPV of consumer benefits that would result from each of the TSLs considered as potential amended standards.
To estimate the energy savings attributable to potential amended standards for MREFs, DOE compared their energy consumption under the no-new-standards case to their anticipated energy consumption under each TSL. The savings are measured over the entire lifetime of products purchased in the 30-year period that begins in the year of anticipated compliance with amended standards (2029-2058). Table V.23 presents DOE's projections of the NES for each TSL considered for freestanding and built-in MREFs. The savings were calculated using the approach described in section IV.H.2 of this document.
OMB Circular A-4
DOE estimated the cumulative NPV of the total costs and savings for consumers that would result from the TSLs considered for MREFs. In accordance with OMB's guidelines on regulatory analysis,
The NPV results based on the aforementioned 9-year analytical period are presented in Table V.26. The impacts are counted over the lifetime of products purchased in 2029-2037. As mentioned previously, such results are presented for informational purposes only and are not indicative of any change in DOE's analytical methodology or decision criteria.
The previous results reflect the use of a default trend to estimate the change in price for consumer MREFs over the analysis period (see section IV.H.3 of this document). DOE also conducted a sensitivity analysis that considered one scenario with a lower rate of price decline than the reference case and one scenario with a higher rate of price decline than the reference case. The results of these alternative cases are presented in appendix 10C of the NOPR TSD. In the high-price-decline case, the NPV of consumer benefits is higher than in the default case. In the low-price-decline case, the NPV of consumer benefits is lower than in the default case.
It is estimated that that amended energy conservation standards for MREFs would reduce energy expenditures for consumers of those products, with the resulting net savings being redirected to other forms of economic activity. These expected shifts in spending and economic activity could affect the demand for labor. As described in section IV.N of this document, DOE used an input/output model of the U.S. economy to estimate indirect employment impacts of the TSLs that DOE considered. There are uncertainties involved in projecting employment impacts, especially changes in the later years of the analysis. Therefore, DOE generated results for near-term timeframes (2029-2033), where these uncertainties are reduced.
The results suggest that the proposed standards would be likely to have a negligible impact on the net demand for labor in the economy. The net change in jobs is so small that it would be imperceptible in national labor statistics and might be offset by other, unanticipated effects on employment. Chapter 16 of the NOPR TSD presents detailed results regarding anticipated indirect employment impacts.
As discussed in section III.F.1.d of this document, DOE has tentatively concluded that the standards proposed in this NOPR would not lessen the utility or performance of the MREFs under consideration in this rulemaking. Manufacturers of these products currently offer units that meet or exceed the proposed standards.
DOE considered any lessening of competition that would be likely to result from new or amended standards. As discussed in section III.F.1.e of this document, the Attorney General determines the impact, if any, of any lessening of competition likely to result from a proposed standard, and transmits such determination in writing to the Secretary, together with an analysis of the nature and extent of such impact. To assist the Attorney General in making this determination, DOE has provided DOJ with copies of this NOPR and the accompanying TSD for review. DOE will consider DOJ's comments on the proposed rule in determining whether to proceed to a final rule. DOE will publish and respond to DOJ's comments in that document. DOE invites comment from the public regarding the competitive impacts that are likely to result from this proposed rule. In addition, stakeholders may also provide comments separately to DOJ regarding these potential impacts. See the
Enhanced energy efficiency, where economically justified, improves the Nation's energy security, strengthens the economy, and reduces the environmental impacts (costs) of energy production. Reduced electricity demand due to energy conservation standards is also likely to reduce the cost of maintaining the reliability of the electricity system, particularly during peak-load periods. Chapter 15 in the NOPR TSD presents the estimated impacts on electricity generating capacity, relative to the no-new-standards case, for the TSLs that DOE considered in this rulemaking.
Energy conservation resulting from potential energy conservation standards for MREFs is expected to yield environmental benefits in the form of reduced emissions of certain air pollutants and greenhouse gases. Table V.27 provides DOE's estimate of cumulative emissions reductions expected to result from the TSLs considered in this rulemaking. The emissions were calculated using the multipliers discussed in section IV.K. DOE reports annual emissions reductions for each TSL in chapter 13 of the NOPR TSD.
As part of the analysis for this rulemaking, DOE estimated monetary benefits likely to result from the reduced emissions of CO
As discussed in section IV.L.1 of this document, DOE estimated the climate benefits likely to result from the reduced emissions of methane and N
DOE is well aware that scientific and economic knowledge about the contribution of CO
DOE also estimated the monetary value of the health benefits associated with NO
DOE has not considered the monetary benefits of the reduction of Hg for this proposed rule. Not all the public health and environmental benefits from the reduction of greenhouse gases, NO
The Secretary of Energy, in determining whether a standard is economically justified, may consider any other factors that the Secretary deems to be relevant. (42 U.S.C. 6295(o)(2)(B)(i)(VII)) No other factors were considered in this analysis.
Table V.33 presents the NPV values that result from adding the estimates of the potential economic benefits resulting from reduced GHG and NO
When considering new or amended energy conservation standards, the standards that DOE adopts for any type (or class) of covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) In determining whether a standard is economically justified, the Secretary must determine whether the benefits of the standard exceed its burdens by, to the greatest extent practicable, considering the seven statutory factors discussed previously. (42 U.S.C. 6295(o)(2)(B)(i)) The new or amended standard must also result in significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
For this NOPR, DOE considered the impacts of amended standards for MREFs at each TSL, beginning with the maximum technologically feasible level, to determine whether that level was economically justified. Where the max-tech level was not justified, DOE then considered the next most efficient level and undertook the same evaluation until it reached the highest efficiency level that is both technologically feasible and economically justified and saves a significant amount of energy.
To aid the reader as DOE discusses the benefits and/or burdens of each TSL, tables in this section present a summary of the results of DOE's quantitative analysis for each TSL. In addition to the quantitative results presented in the tables, DOE also considers other burdens and benefits that affect economic justification. These include the impacts on identifiable subgroups of consumers who may be disproportionately affected by a national standard and impacts on employment. In addition, as discussed in section V.B.1.b of this document, DOE conducted a subgroup analysis for seniors, the results of which are comparable to all MREF consumers (see Table V.18.) DOE did not consider low-income consumers in this NOPR because MREFs are not products generally used by this subgroup, as they typically cost more than comparable compact refrigerators, which are able to maintain lower temperatures compared to MREFs, and therefore serve a wider range of applications.
DOE also notes that the economics literature provides a wide-ranging discussion of how consumers trade off upfront costs and energy savings in the absence of government intervention. Much of this literature attempts to explain why consumers appear to undervalue energy efficiency improvements. There is evidence that consumers undervalue future energy savings as a result of (1) a lack of information, (2) a lack of sufficient salience of the long-term or aggregate benefits, (3) a lack of sufficient savings to warrant delaying or altering purchases, (4) excessive focus on the short term, in the form of inconsistent weighting of future energy cost savings relative to available returns on other investments, (5) computational or other difficulties associated with the evaluation of relevant tradeoffs, and (6) a divergence in incentives (for example, between renters and owners, or builders and purchasers). Having less than perfect foresight and a high degree of uncertainty about the future, consumers may trade off these types of investments at a higher-than-expected rate between current consumption and uncertain future energy cost savings.
In DOE's current regulatory analysis, potential changes in the benefits and costs of a regulation due to changes in consumer purchase decisions are included in two ways. First, if consumers forego the purchase of a product in the standards case, this decreases sales for product manufacturers, and the impact on manufacturers attributed to lost revenue is included in the MIA. Second, DOE accounts for energy savings attributable only to products actually used by consumers in the standards case; if a standard decreases the number of products purchased by consumers, this decreases the potential energy savings from an energy conservation standard. DOE provides estimates of shipments and changes in the volume of product purchases in chapter 9 of the NOPR TSD. However, DOE's current analysis does not explicitly control for heterogeneity in consumer preferences, preferences across subcategories of products or specific features, or consumer price sensitivity variation according to household income.
While DOE is not prepared at present to provide a fuller quantifiable framework for estimating the benefits and costs of changes in consumer purchase decisions due to an energy conservation standard, DOE is committed to developing a framework that can support empirical quantitative tools for improved assessment of the consumer welfare impacts of appliance standards. DOE has posted a paper that discusses the issue of consumer welfare impacts of appliance energy conservation standards, and potential enhancements to the methodology by which these impacts are defined and estimated in the regulatory process.
Table V.34 and Table V.35 summarize the quantitative impacts estimated for each TSL for MREFs. The national impacts are measured over the lifetime
DOE first considered TSL 5, which represents the max-tech efficiency levels. For coolers (
The cumulative emissions reductions at TSL 5 are 18.2 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 5, for the product classes with the largest market share, which are FCC, FC, and C-13A and together account for approximately 92 percent of annual shipments, the LCC savings are all negative (−$45.3, −$178.8, and −$73.4, respectively) and their payback periods are 11.5 years, 22.5, and 16.7 years, respectively, which are all longer than their corresponding average lifetimes. For these product classes, the fraction of consumers experiencing a net LCC cost is 77.8 percent, 94.5 percent, and 90.3 percent due to increases in first cost of $180.0, $335.6, and $73.4, respectively. Overall, a majority of MREF consumers (80.8 percent) would experience a net cost and the average LCC savings would be negative for all analyzed product classes.
At TSL 5, the projected change in INPV ranges from a decrease of $385.3 million to a decrease of $283.2 million, which corresponds to decreases of 51.9 percent and 38.2 percent, respectively. DOE estimates that industry must invest $539.0 million to comply with standards set at TSL 5.
DOE estimates that approximately 2.7 percent of current MREF shipments meet the max-tech levels. For FCC, FC,
At TSL 5, manufacturers would likely need to implement all the most efficient design options analyzed in the engineering analysis. Manufacturers that do not currently offer products that meet TSL 5 efficiencies would need to develop new product platforms, which would require significant investment. Conversion costs are driven by the need for changes to cabinet construction, such as increasing foam insulation thickness and/or incorporating VIP technology. Increasing insulation thickness would likely result in the loss of interior volume and would require redesign of the cabinet as well as the designs and tooling associated with the interior of the product, such as the liner, shelving, racks, and drawers. Incorporating VIPs into MREF designs could also require redesign of the cabinet in order to maximize the efficiency benefit of this technology. In addition to insulation changes, manufacturers may need to implement triple-pane glass, which could require implementing reinforced hinges and redesigning the door structure.
At this level, DOE expects an estimated 20-percent drop in shipments in the year the standard takes effect, as some consumers may forgo purchasing a new MREF due to the increased upfront cost of baseline models.
The Secretary tentatively concludes that at TSL 5 for MREFs, the benefits of energy savings, positive NPV of consumer benefits, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on many consumers, and the impacts on manufacturers, including the significant potential reduction in INPV. A majority of MREF consumers (80.8 percent) would experience a net cost and the average LCC savings would be negative. Additionally, manufacturers would need to make significant upfront investments to update product platforms. The potential reduction in INPV could be as high as 51.9 percent. Consequently, the Secretary has tentatively concluded that TSL 5 is not economically justified.
DOE then considered TSL 4, which represents EL 3 for all analyzed product classes except for C-3A and C-3A-BI, for which this TSL corresponds to EL 1 and BIC, for which this TSL corresponds to EL 2. At TSL 4, products of most classes would use high-efficiency single-speed compressors with forced-convection evaporators and condensers using brushless DC fan motors. Doors would be double-glazed with low-conductivity gas fill (
The cumulative emissions reductions at TSL 4 are 10.4 Mt of CO
Using a 7-percent discount rate for consumer benefits and costs, health benefits from reduced SO
At TSL 4, for the product classes with the largest market share, which are FCC, FC, and C-13A, the LCC savings are $12.6, $28.0, and $12.0, respectively, and their payback periods are 6.8 years, 8.0, and 6.9 years, respectively, which are all shorter than their corresponding average lifetimes. For these product classes, the fraction of consumers experiencing a net LCC cost is 49.5 percent, 45.5 percent, and 47.5 percent, and increases in first cost for these classes are $52.9, $96.0, and $44.3, respectively. Overall, the LCC savings would be positive for all MREF product classes, and more than half of MREF consumers would experience a net benefit (51 percent).
At TSL 4, the projected change in INPV ranges from a decrease of $89.8 million to a decrease of $62.7 million, which correspond to decreases of 12.1 percent and 8.4 percent, respectively. DOE estimates that industry must invest $126.9 million to comply with standards set at TSL 4.
DOE estimates that approximately 3.4 percent of shipments currently meet the required efficiencies at TSL 4 as at max-tech. For most product classes (
After considering the analysis and weighing the benefits and burdens, the Secretary has tentatively concluded that at a standard set at TSL 4 for MREFs would be economically justified. At this TSL, the average LCC savings are positive for all product classes for which an amended standard is considered, with a shipment-weighted average of $15.60 in consumer savings.
The FFC national energy savings are significant and the NPV of consumer benefits is positive (and represents the maximum value) using both a 3-percent and 7-percent discount rate. Notably, the benefits to consumers outweigh the cost to manufacturers. At TSL 4, the NPV of consumer benefits, even measured at the more conservative discount rate of 7 percent is over 1.5 times higher than the maximum estimated manufacturers' loss in INPV. The standard levels at TSL 4 are economically justified even without weighing the estimated monetary value of emissions reductions. When those emissions reductions are included—representing $0.5 billion in climate benefits (associated with the average SC-GHG at a 3-percent discount rate), and $0.8 billion (using a 3-percent discount rate) or $0.3 billion (using a 7-percent discount rate) in health benefits—the rationale becomes stronger still.
As stated, DOE conducts the walk-down analysis to determine the TSL that represents the maximum improvement in energy efficiency that is technologically feasible and economically justified as required under EPCA. The walk-down is not a comparative analysis, as a comparative analysis would result in the maximization of net benefits instead of energy savings that are technologically feasible and economically justified, which would be contrary to the statute. 86 FR 70892, 70908. Although DOE has not conducted a comparative analysis to select the proposed energy conservation standards, DOE notes that TSL 4 represents the option with positive LCC savings ($15.6) for all product classes compared to TSL 5 ($−74.0). Further, when comparing the cumulative NPV of consumer benefit using a 7% discount rate, TSL 4 ($0.14 billion) has a higher benefit value than TSL 5 (−$1.04 billion), while for a 3% discount rate, TSL 4 ($0.69 billion) is also higher than TSL 5 (−1.36 billion), which yields negative NPV in both cases. These additional savings and benefits at TSL 4 are significant. DOE considers the impacts to be, as a whole, economically justified at TSL 4.
Although DOE considered proposed amended standard levels for MREFs by grouping the efficiency levels for each product class into TSLs, DOE evaluates all analyzed efficiency levels in its analysis. For all product classes, the proposed standard level represents the maximum energy savings that does not result in negative LCC savings. The ELs at the proposed standard level result in positive LCC savings for all product classes, and reduce the decrease in INPV and conversion costs to the point where DOE has tentatively concluded they are economically justified, as discussed for TSL 4 in the preceding paragraphs.
Therefore, based on the previous considerations, DOE proposes to adopt the energy conservation standards for MREFs at TSL 4. The proposed amended energy conservation standards for MREFs, which are expressed in kWh/yr, are shown in Table V.36.
The benefits and costs of the proposed standards can also be expressed in terms of annualized values. The annualized net benefit is (1) the annualized national economic value (expressed in 2021$) of the benefits from operating products that meet the proposed standards (consisting primarily of operating cost savings from using less energy, minus increases in product purchase costs, and (2) the annualized monetary value of the climate and health benefits from emission reductions.
Table V.37 shows the annualized values for MREFs under TSL 4, expressed in 2021$. The results under the primary estimate are as follows.
Using a 7-percent discount rate for consumer benefits and costs and NOx and SO
Using a 3-percent discount rate for all benefits and costs, the estimated cost of the proposed standards for MREFs is $81.0 million per year in increased equipment costs, while the estimated annual benefits are $123.1 million in reduced operating costs, $28.9 million from GHG reductions, and $49.5 million from reduced NO
Manufacturers, including importers, must use product-specific certification templates to certify compliance to DOE. For MREFs, the certification template reflects the general certification requirements specified at 10 CFR 429.12 and the product-specific requirements specified at 10 CFR 429.14. As discussed in the previous paragraphs, DOE is not proposing to amend the product-specific certification requirements for these products.
Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51734 (Oct. 4, 1993) as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (January 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 impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this proposed/final regulatory action is consistent with these principles.
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 constitutes a “significant regulatory action within the scope of section 3(f)(1)” of E.O. 12866. Accordingly, pursuant to section 6(a)(3)(C) of E.O. 12866, DOE has provided to OIRA an assessment, including the underlying analysis, of benefits and costs anticipated from the proposed regulatory action, together with, to the extent feasible, a quantification of those costs; and an assessment, including the underlying analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the planned regulation, and an explanation why the planned regulatory action is preferable
The Regulatory Flexibility Act (5 U.S.C. 601
For manufacturers of miscellaneous refrigeration products (“MREFs”), the SBA has set a size threshold, which defines those entities classified as “small businesses” for the purposes of the statute. DOE used the SBA's small business size standards to determine whether any small entities would be subject to the requirements of the rule. (See 13 CFR part 121.) The size standards are listed by North American Industry Classification System (“NAICS”) code and industry description and are available at
DOE is proposing amended energy conservation standards for MREFs. EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles which, in addition to identifying particular consumer products and commercial equipment as covered under the statute, permits the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) DOE added MREFs as covered products through a final determination of coverage published in the
EPCA authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part B of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles which, in addition to identifying particular consumer products and commercial equipment as covered under the statute, permits the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) DOE added MREFs as covered products through a final determination of coverage published in the
EPCA further provides that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) Not later than three years after issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B))
DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. 68 FR 7990. DOE conducted a market survey to identify potential small manufacturers of MREFs. DOE began its assessment by reviewing DOE's CCD,
DOE initially identified 38 OEMs that sell MREFs in the United States. Of the 38 OEMs identified, DOE tentatively
DOE reached out to both small businesses and invited them to participate in voluntary interviews. Neither of the small business consented to participate in formal MIA interviews. DOE also requested information about small businesses and potential impacts on small businesses while interviewing larger manufacturers.
One of the small businesses identified has 14 MREF models certified in DOE's CCD. Of those 14 models, nine models are FCC, two are BIC, and three are C-13A combination coolers. None of the nine FCC models meet the TSL 4 efficiencies. Of the two BIC, one meets the efficiencies required at TSL 3. However, the two models have identical dimensions and share many components. Given the product similarities and low volume of sales, DOE expects the manufacturer would likely discontinue the non-compliant model. None of the three C-13A models meet the TSL 4 efficiencies. To meet the required efficiencies for their FCC models, DOE expects the manufacturer would likely need to incorporate incrementally more efficient compressors, along with other design options. DOE expects these updates to be relatively straight forward component swaps. Some product conversion costs would be necessary for sourcing, qualifying, and testing more efficient components. To meet the efficiencies required for their C-13A models, DOE expects the manufacturer would likely need to implement variable-speed compressors, along with other design options. Implementing variable-speed compressors could require more advanced controls and electronics and new test stations. DOE estimated conversion costs for this small manufacturer by using product platform estimates to scale-down the industry conversion costs. DOE estimates that the small would incur minimal capital conversion costs and product conversion costs of approximately $1.37 million related to sourcing and testing more efficient components and variable-speed compressors to meet proposed amended standards. Based on subscription-based market research reports, the small business has an annual revenue of approximately $85 million. The total conversion costs of $1.37 are approximately 0.3 percent of company revenue over the 5-year conversion period.
Based on a review of publicly available information, the other small business primarily sources their MREF products from Asian-based OEMs. However, DOE has tentatively determined that they make some MREF products in-house at a domestic manufacturing facility. DOE identified one FCC model certified in CCD. To meet the required efficiencies, DOE expects the manufacturer would likely need to incorporate incrementally more efficient compressors, along with other design options. As previously discussed, DOE expects these updates to be relatively straight forward component swaps. DOE estimated conversion costs for this small manufacturer by using product platform estimates to scale-down the industry conversion costs. DOE estimates that the small manufacturer would incur minimal capital conversion costs and approximately $420,000 in product conversion costs related to sourcing and testing more efficient components to meet proposed amended standards. Based on subscription-based market research reports, the small business has an annual revenue of approximately $200 million. The total conversion costs of approximately $420,000 are less than 1 percent of the estimated company revenue over the 5-year conversion period.
DOE seeks comments, information, and data on the number of small businesses in the industry, the names of those small businesses, and their market shares by product class. DOE also requests comment on the potential impacts of the proposed standards on small manufacturers.
DOE is not aware of any rules or regulations that duplicate, overlap, or conflict with the proposed rule.
The discussion in the previous section analyzes impacts on small businesses that would result from DOE's proposed rule, represented by TSL 4. In reviewing alternatives to the proposed rule, DOE examined energy conservation standards set at lower efficiency levels. While TSL 1, TSL 2, and TSL 3 would reduce the impacts on small business manufacturers, it would come at the expense of a reduction in energy savings. TSL 1 achieves 69 percent lower energy savings compared to the energy savings at TSL 4. TSL 2 achieves 37 percent lower energy savings compared to the energy savings at TSL 4. TSL 3 achieves 31 percent lower energy savings compared to the energy savings at TSL 4.
Based on the presented discussion, establishing standards at TSL 4 balances the benefits of the energy savings at TSL 4 with the potential burdens placed on MREF manufacturers, including small business manufacturers. Accordingly, DOE does not propose one of the other TSLs considered in the analysis, or the other policy alternatives examined as part of the regulatory impact analysis and included in chapter 17 of the NOPR TSD.
Additional compliance flexibilities may be available through other means. EPCA provides that a manufacturer whose annual gross revenue from all of its operations does not exceed $8 million may apply for an exemption from all or part of an energy conservation standard for a period not longer than 24 months after the effective date of a final rule establishing the standard. (42 U.S.C. 6295(t)) Additionally, manufacturers subject to DOE's energy efficiency standards may apply to DOE's Office of Hearings and Appeals for exception relief under certain circumstances. Manufacturers should refer to 10 CFR part 430, subpart E, and 10 CFR part 1003 for additional details.
Manufacturers of miscellaneous refrigeration products must certify to DOE that their products comply with any applicable energy conservation standards. In certifying compliance, manufacturers must test their products according to the DOE test procedures for miscellaneous refrigeration products, 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 miscellaneous refrigeration products. (
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.
DOE is analyzing this proposed regulation in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for rulemakings that establish energy conservation standards for consumer products or industrial equipment. 10 CFR part 1021, subpart D, appendix B5.1. DOE anticipates that this rulemaking qualifies for categorical exclusion B5.1 because it is a rulemaking that establishes energy conservation standards for consumer products or industrial equipment, none of the exceptions identified in categorical exclusion B5.1(b) apply, no extraordinary circumstances exist that require further environmental analysis, and it otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. DOE will complete its NEPA review before issuing the final rule.
E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this proposed rule and has tentatively determined that it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the miscellaneous refrigeration products that are the subject of this proposed rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by Executive Order 13132.
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 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 section 3(a) and section 3(b) to determine whether they are met or 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, this proposed rule meets the relevant standards of E.O. 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. Pub. L. 104-4, section 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 them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at
Although this proposed rule does not contain a Federal intergovernmental mandate, it may require expenditures of $100 million or more in any one year by the private sector. Such expenditures may include: (1) investment in research and development and in capital expenditures by miscellaneous refrigeration product manufacturers in the years between the final rule and the compliance date for the new standards and (2) incremental additional expenditures by consumers to purchase higher-efficiency miscellaneous refrigeration products, starting at the compliance date for the applicable standard.
Section 202 of UMRA authorizes a Federal agency to respond to the content requirements of UMRA in any other statement or analysis that accompanies the proposed rule. (2 U.S.C. 1532(c)) The content requirements of section 202(b) of UMRA relevant to a private sector mandate substantially overlap the economic analysis requirements that apply under section 325(o) of EPCA and Executive Order 12866. The
Under section 205 of UMRA, the Department is obligated to identify and consider a reasonable number of regulatory alternatives before promulgating a rule for which a written statement under section 202 is required. (2 U.S.C. 1535(a)) DOE is required to select from those alternatives the most cost-effective and least burdensome alternative that achieves the objectives of the proposed rule unless DOE publishes an explanation for doing otherwise, or the selection of such an
Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.
Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review most disseminations of information to the public under information quality 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
E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA at OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.
DOE has tentatively concluded that this regulatory action, which proposes amended energy conservation standards for miscellaneous refrigeration products, is not a significant energy action because the proposed standards are not likely to have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects on this proposed rule.
On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” 70 FR 2664, 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a report describing that peer review.
The time and date of the webinar meeting are listed in the
Any person who has plans to present a prepared general statement may request that copies of his or her statement be made available at the public meeting. Such persons may submit requests, along with an advance electronic copy of their statement in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format, to the appropriate address
DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will be present to record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. There shall not be discussion of proprietary information, costs or prices, market share, or other commercial matters regulated by U.S. antitrust laws. After the public meeting, interested parties may submit further comments on the proceedings, as well as on any aspect of the rulemaking, until the end of the comment period.
The public meeting will be conducted in an informal, conference style. DOE will present 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. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the previous procedures that may be needed for the proper conduct of the public meeting.
A transcript of the public meeting will be included in the docket, which can be viewed as described in the
DOE will accept comments, data, and information regarding this proposed rule before or after the public meeting, but no later than the date provided in the
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. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No telefacsimiles (“faxes”) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, 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).
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:
(1) DOE requests comment on its proposal to amended refrigerator and freezer definitions to clarify that products that would otherwise be considered a refrigerator or a freezer that also include a cooler compartment would be considered a refrigerator or a freezer, unless a miscellaneous refrigeration product energy conservation standard is applicable for the product.
(2) DOE invites comment from the public regarding the competitive impacts that are likely to result from this proposed rule.
(3) DOE requests comments on its proposal to consolidate the presentation of maximum allowable energy use for products of classes that may or may not have an automatic icemaker.
(4) DOE requests comment on its proposal to establish energy conservation standards for combination cooler 5-BI using the analysis for combination class 3A as proxy for setting the standard level, based on a baseline efficiency equal to 6.08AV + 218 +28*I kWh/yr, where I is equal to 0 if the model has no automatic icemaker and equal to 1 if it does.
(5) DOE seeks further comment on any of the technologies screened out in this NOPR analysis as they were determined to not meet the screening criteria (
(6) DOE requests any further input from commenters regarding the approach for design option selection and implementation for a given model, beyond the information DOE has already considered.
(7) DOE seeks comment on the range of VSC nominal efficiencies and the relative overall efficiency gains offered by VSCs when operating at reduced compressor speeds along with reduced fan speeds in MREF products.
(8) In interviews, manufacturers noted that the majority of MREFs—namely freestanding compact coolers—are manufactured in Asia and rebranded by home appliance manufacturers. Manufacturers had few concerns about manufacturing constraints below the max-tech level and the implementation of VIPs. However, at max-tech, some manufacturers expressed technical uncertainty about industry's ability to meet the efficiencies required as few OEMs offer products at max-tech today. For example, DOE is not aware of any OEMs that currently offer freestanding compact coolers that meet TSL 5 efficiencies. DOE's shipments analysis estimates that except for built-in compact coolers, which only accounts for 4 percent of MREF shipments, no shipments of other product classes meet the max-tech efficiencies.
(9) DOE seeks comment on whether manufacturers expect manufacturing capacity constraints would limit product availability to consumers in the timeframe of the amended standard compliance date (2029).
(10) DOE requests information regarding the impact of cumulative regulatory burden on manufacturers of MREFs associated with multiple DOE standards or product-specific regulatory actions of other Federal agencies.
(11) DOE requests comment on the assumption used in developing the dealer/retailer markups and welcomes any feedback on the overall markup in the wholesaler channel.
(12) DOE requests comment on its methodology to develop market share distributions by adjusted volume in the compliance year for each product class with two representative volumes, as well as data to further inform these distributions.
(13) DOE requests comment and data on its price learning methodology used to project MREF prices in the future.
(14) DOE requests comment on its methodology to develop market share distributions by efficiency level for each product class for the no-new-standards case in the compliance year, as well as data to further inform these distributions.
(15) DOE requests comment and data on the assumptions and methodology used to calculate MREF survival probabilities.
(16) DOE requests comment and data on its efficiency distribution assumptions and projection into future years. Specifically, DOE is requesting comment and data on the efficiency distribution of non-AHAM members, to more accurately derive the efficiency distribution for the whole MREF market.
(17) DOE requests comment on the overall methodology and results of the LCC and PBP analyses.
(18) DOE requests comment on the overall methodology and results of the shipments analysis. More specifically, DOE seeks comment and data related to the total MREF shipments, market saturation, MREF shipments by product class, and non-AHAM-member shipments.
(19) DOE requests comment on the assumption that the current efficiency distribution would remain fixed over the analysis period, and data to inform an efficiency trend by product class or overall for the MREF market.
(20) DOE requests comment on the overall methodology and results of the consumer subgroup analysis.
(21) DOE welcomes comments on how to more fully assess the potential impact of energy conservation standards on consumer choice and how to quantify this impact in its regulatory analysis in future rulemakings.
Additionally, DOE welcomes comments on other issues relevant to the conduct of this rulemaking that may not specifically be identified in this document.
The Secretary of Energy has approved publication of this notice of proposed rulemaking and announcement of public meeting.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.
This document of the Department of Energy was signed on March 10, 2023, by Francisco Alejandro Moreno, Acting 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
For the reasons set forth in the preamble, DOE proposes to amend part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations, as set forth below:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
(1) Any product that does not include a compressor and condenser unit as an integral part of the cabinet assembly; or
(2) Any miscellaneous refrigeration product that must comply with an applicable miscellaneous refrigeration product energy conservation standard.
(1) Any product that does not include a compressor and condenser unit as an integral part of the cabinet assembly;
(2) A cooler; or
(3) Any miscellaneous refrigeration product that must comply with an applicable miscellaneous refrigeration product energy conservation standard.
The revision and addition read as follows.
(a) * * *
(ii) For miscellaneous refrigeration products: To demonstrate compliance with the energy conservation standards at 10 CFR 430.32(aa) applicable to products manufactured on or after October 28, 2019, but before the compliance date of any amended standards published after January 1, 2022, IET, expressed in kilowatt-hours per cycle, equals 0.23 for a product with one or more automatic icemakers and otherwise equals 0 (zero). To demonstrate compliance with any amended standards published after January 1, 2022, IET, expressed in kilowatt-hours per cycle, is as defined section 5.9.2.1 of HRF-1-2019.
For cooler-freezers, determine the average per-cycle energy consumption consistent with section 5.9.3 of HRF-1-2019. If both compartments are at or colder than their standardized temperatures for both tests, use the equation in section 5.9.3.1. Otherwise, use the approach and equations in section 5.9.3.2, where applicable, the “k” value shall be 0.0.
The additions read as follows.
(c) When testing freezers with a cooler compartment, refer to section 5.2 of appendix A.
(d) Freezers with a cooler compartment: the applicable “K” value in section 5.8.2 of HRF-1-2019 shall be equal to either 0.7 or 0.85 as determined by the product's freezer configuration.
Refer to section 5.4 of appendix A.
(aa)
(1) The following standards remain in effect from October 28, 2019 until [
The following standards apply to products manufacturer starting on [
(2) The following standards remain in effect from October 28, 2019 until [
The following standards apply to products manufacturer starting on [
Office of the Assistant Secretary for Fair Housing and Equal Opportunity, U.S. Department of Housing and Urban Development (HUD).
Final rule.
The Fair Housing Act prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities. This prohibition extends to practices with an unjustified discriminatory effect, regardless of whether there was an intent to discriminate. In 2013, HUD published a rule which formalized a burden-shifting test for determining whether a given practice has an unjustified discriminatory effect. In 2020, HUD published a rule that would have altered the standards set forth in the 2013 rule. However, a preliminary injunction prevented the 2020 rule from ever going into effect. On June 25, 2021, HUD published a proposed rule to recodify the 2013 rule. After considering public comments, HUD in this final rule reinstates and maintains the 2013 rule and rescinds the 2020 rule.
Jeanine Worden, Associate General Counsel for Fair Housing, Office of General Counsel, U.S. Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410-0500, or telephone number 202-402-3330 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit:
Title VIII of the Civil Rights Act of 1968, as amended (“Fair Housing Act” or “Act”), prohibits discrimination in the sale, rental, or financing of dwellings and in other housing-related activities because of race, color, religion, sex (including sexual orientation and gender identity), disability, familial status, or national origin.
The Act gives HUD the authority and responsibility for administering and enforcing the Act, including the authority to conduct formal adjudications of complaints and to promulgate rules to interpret and carry out the Act.
HUD's 2013 rule, titled “Implementation of the Fair Housing Act's Discriminatory Effects Standard” (“2013 Rule”), broke no new ground, but instead largely codified longstanding judicial and agency consensus regarding discriminatory effects law. Courts had long found that discrimination under the Act may be established through evidence of discriminatory effects,
Consistent with this judicial consensus, HUD has for decades concluded that facially neutral practices that have an unjustified discriminatory effect on the basis of a protected characteristic, regardless of intent, violate the Act.
In February 2013, after notice and public comment, and considering decades of case law, HUD published the 2013 Final Rule.
Among other things, the 2013 Rule codified a three-part burden-shifting framework consistent with frameworks on which HUD and courts had long relied: (1) The plaintiff or charging party is first required to prove as part of the prima facie showing that a challenged practice caused or predictably will cause a discriminatory effect; (2) if the plaintiff or charging party makes this prima facie showing, the defendant or respondent must then prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the defendant or respondent; and (3) if the defendant or respondent meets its burden at step two, the plaintiff or charging party may still prevail by proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.
In 2015, the Supreme Court confirmed that the Act provides for discriminatory effects liability in
In reaching this holding, the Court explained that from its first decision to recognize disparate impact liability, in
The Court then sketched out some of these long-standing limitations on the scope of disparate-impact liability, including: (1) The requirement that “housing authorities and private developers [have] leeway to state and explain the valid interest served by their policies . . . analogous to the business necessity standard under Title VII;” and (2) the requirement that a “claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity.”
In 2016, HUD published a document (“2016 Notice”) supplementing its response to certain comments concerning homeowners' insurance received during rulemaking for the 2013 Rule in accordance with the district court's decision in
On June 20, 2018, HUD published an Advance Notice of Proposed Rulemaking (“ANPRM”), inviting public comment on “what changes, if any” to the 2013 Rule were necessary as a result of
In response to the 2019 Proposed Rule, HUD received approximately 45,000 comments, most of which opposed the proposed changes and many of which raised significant legal and policy concerns with the 2019 Proposed Rule. Commenters objected that the proposed changes did not align with case law, created problematic defenses and made discriminatory effects claims effectively impossible to plead and prove in many instances, thus contravening the core holding of
Following publication of the 2020 Rule, HUD was sued in three separate federal courts—:
In its order, the district court preliminarily found that many significant changes made by the 2020 Rule were likely not supported by
The district court found that the “practical business, profit, policy consideration” language, the “outcome prediction” defense, changes to the third element of the burden-shifting framework, and the conflating of a plaintiff's prima facie burden and pleading burden, ran the risk of “effectively neutering” discriminatory effects liability under the Act, and were all likely unsupported by
On January 26, 2021, President Biden issued a Memorandum ordering the Department to “take all steps necessary to examine the effects of the [2020 Rule], including the effect that amending the [2013 Rule] has had on HUD's statutory duty to ensure compliance with the Fair Housing Act” and “take any necessary steps . . . to implement the Fair Housing Act's requirements that HUD administer its programs in a manner that . . . furthers . . . HUD's overall duty to administer the Act [ ] including by preventing practices with an unjustified discriminatory effect.”
Consistent with the President's Memorandum, HUD began a process to reconsider the 2020 Rule. On June 25, 2021, after reviewing prior public comments on the previous rulemakings described above, HUD's responses to those comments, HUD's 2016 supplemental explanation regarding the 2013 Rule's applicability to the insurance industry, legal precedent including
As HUD described in the proposed rule, in HUD's experience, the 2013 Rule set a more appropriately balanced standard for pleading, proving, and defending a fair housing case alleging that a policy or practice has a discriminatory effect. HUD believed that the 2013 Rule provided greater clarity about what each party must show by relying on concepts that have a long history in judicial and agency precedent and that it appropriately balanced the need to ensure that frivolous claims do not go forward with a realistic understanding of the practical challenges to litigating these claims. With regard to the 2020 Rule, HUD's experience investigating and prosecuting discriminatory effects cases informed its views that many of the points made by commenters and the District Court in
HUD further stated its belief that the 2013 Rule was more consistent with the Act's purpose; prior case law under the Act, including
By comparison, in HUD's experience, the 2013 Rule provided a workable and balanced framework for investigating and litigating discriminatory effects claims that is consistent with the Act, HUD's own guidance,
HUD noted that
For these reasons and others, HUD proposed that
HUD described how the 2020 Rule also eliminated from the Act's prohibitions policies or practices that could “predictably result[] in a disparate impact on a group of persons,”
In addition, in the 2021 proposed rule, HUD recognized and agreed with concerns that the 2020 Rule created new and confusing defenses at both the pleading and post-pleading stage, including the new defense allowing a defendant to show that the challenged policy or practice is “reasonably necessary to comply with a third-party requirement.”
HUD noted further in the proposed rule that the 2020 Rule also created a new “outcome prediction” defense which HUD believed would in practice exempt most insurance industry practices (and many other housing-related practices that rely on outcome predictions, such as lending practices) from liability under a disparate impact standard.
In the proposed rule, HUD explained that the 2020 Rule inappropriately limited remedies in discriminatory effects cases in three respects. It specified that “remedies should be concentrated on eliminating or reforming the discriminatory practice so as to eliminate disparities between persons in a particular protected class and other persons.” It prohibited HUD in administrative proceedings from pursuing anything but “equitable remedies” except that “where pecuniary damage is proved, HUD will seek compensatory damages or restitution.” And it restricted HUD from seeking civil penalties in discriminatory effects cases unless the respondent had been adjudged within the last 5 years to have committed intentional unlawful housing discrimination under the Act. In the proposed rule, HUD proposed that these limitations have no basis in law and run contrary to public interest and the purpose of the Act. While the 2020 Rule cited
In sum, HUD stated in the proposed rule that it believed that the 2013 Rule would be preferable to the 2020 Rule. It believed the 2013 Rule would be more consistent with judicial precedent construing the Fair Housing Act, including
HUD received 10,113 comments in response to the proposed rule. HUD reviewed and carefully considered these comments and, as explained in the responses to the comments below, HUD has decided to recodify the 2013 Rule. HUD has confirmed that the concerns it expressed in the proposed rule are consistent with the public comments received in response to the proposed rule, HUD's previous rulemakings and notices, and relevant discriminatory effects case law under the Act, including cases using the 2013 Rule and the 2020 Rule.
HUD continues to believe that, as compared to the 2020 Rule, the 2013 Rule more accurately describes discriminatory effects law in a manner that is consistent with both the Act and the Supreme Court's ruling in
Moreover, even if the 2020 Rule were a permissible approach to discriminatory effects law and HUD had no doubts about the legality or appropriateness of the 2020 Rule under the Act, HUD would recodify the 2013 Rule as an exercise of the discretion Congress gave HUD to make rules under the Act.
HUD adopts one amendment made by the 2020 Rule to HUD's general fair housing regulations at § 100.70(d)(5). This amendment provides additional illustrations of prohibited activities under the Fair Housing Act generally, though it is not specific to discriminatory effects cases. HUD proposed keeping these additional examples in the proposed rule and received no public comments specifically opposing these additions. In this final rule's amendatory instructions, HUD includes instructions to “republish” § 100.70(d)(5) without change from the 2020 Rule to clearly show that HUD is adopting this language in this final rule.
Commenters generally supported the proposed rule, which would reinstate the 2013 Rule. Commenters stated that the proposed rule is consistent with President Biden's memorandum directing agencies to redress America's history of housing discrimination and the 1994 interagency fair lending guidance under the Act and the Equal Credit Opportunity Act. Commenters also stated that the proposed rule is an important and appropriate exercise of HUD's rulemaking authority.
Among the supportive comments were those stating that the proposed rule: is appropriately broad, inclusive, and will be instrumental in ensuring optimal compliance with the Act and in challenging covert or latent discrimination that can be intentionally or unintentionally embedded in facially neutral policies and practices; is critical for ensuring equal opportunity under the Act; would help secure equal opportunity in a wide variety of housing areas, including in land use and zoning, affordable and public housing, environmental permitting, air quality, and utility burdens; would be effective in protecting against housing discrimination based on all of the Act's protected characteristics, as well as related groups such as persons without English language proficiency or who are survivors of domestic violence or sexual assault; would advance sustainable homeownership and affordable housing programs; would benefit both real estate professionals and consumers; may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping; is essential to challenging blanket refusals to accept Housing Choice Vouchers, which are disproportionately used by people of color, households with children, and persons with disabilities; and would address de facto and de jure discrimination in housing policies, construction, and tenancy.
Commenters noted that the proposed rule's burden-shifting framework is consistent with long-standing case law, including
Commenters stated that out of more than 40 federal appellate and district court decisions in disparate-impact fair housing cases following
Commenters supporting the proposed rule stated that it provides a clear, simple, and effective standard that would promote consistency between judicial and administrative venues and throughout the housing industry. Commenters explained that this standard would maintain continuity for regulated entities and enable them to better comply with the Act, since this regulatory framework has been in place since 2013. Commenters described the framework as pragmatic, fostering fair and sound business practices and finding the appropriate balance between fair housing concerns and business necessities.
Commenters expressed support for the burden-shifting framework, describing it as clear, easy to follow, practical, and striking the appropriate balance between competing interests. Commenters stated that the 2013 Rule settled the law on several important issues, including whether the burden-shifting framework is appropriate and which party bears the burden of demonstrating the business necessity for a particular policy and the existence of a less discriminatory alternative. A commenter noted that the 2013 Rule is a fair and accurate codification of longstanding jurisprudence of discriminatory effects liability under the Act and posed no significant departure from previous HUD interpretation or the weight of judicial authority. Commenters noted that plaintiff's burden under the proposed rule is not easy to meet, which eliminates the danger of an onslaught of groundless litigation. A commenter described the proposed rule as balancing the need to prevent frivolous claims from moving forward with a process that allows potentially meritorious claims to be substantiated or disproved. A commenter compared the proposed rule's three-tiered framework to the 2020 Rule's five-tiered test, noting that the former provides a clear way to challenge policies that may unnecessarily restrict housing, while the latter is vague and allows discrimination to continue unchallenged. Comments also stated that the 2020 Rule conflicted with decades of legal precedent, including
Other commenters generally opposed the proposed rule, suggesting that HUD withdraw it and retain the 2020 Rule. A commenter stated that the 2020 Rule thoroughly explained its reasoning and was consistent with
This final rule sets out a usable and uniform framework that is fully consistent with the requirements established by courts, as well as the text and purpose of the Act.
HUD notes that the preamble to the 2013 Rule explained in great detail how its framework operates harmoniously with other civil rights laws, including Title VII and ECOA, and best effectuated the important goals of the Fair Housing Act.
Other commenters stated that
Other commenters opposed the proposed rule, stating that it is inconsistent with
Another commenter stated that courts, such as the court in
HUD disagrees with the commenters who stated that the 2020 Rule should be retained because it is consistent with and incorporates the “safeguards” described in
In light of the views of a majority of courts and HUD's experience applying the Act, HUD finds that the Fifth Circuit's conclusions in
HUD believes
HUD notes that, while acknowledging that other appellate courts had interpreted
HUD also notes that
In short, HUD does not believe that the cases cited by the commenters support revisions to the rule.
Some commenters urged HUD to adopt the view that, in stating that disparate impact claims may not be established simply by demonstrating a “statistical disparity” in outcomes,
Commenters who supported the proposed rule said that it incorporates
HUD also believes that the rule's burden-shifting framework does not preclude businesses from making business and profit-motivated choices, even if they cause a discriminatory effect, so long as they do not create an
HUD notes further that although the 2013 Rule has been in effect for ten years—with similar judicial precedent effective even longer, it is unaware of any case applying the 2013 Rule in a manner that would impose quotas.
Other commenters disagreed, stating that if such a requirement were added to the rule, it would be impossible to challenge discriminatory policies absent facts showing discriminatory intent, thus negating
HUD believes, although the
HUD additionally observes that, in its view,
As further explained above and below, the Fair Housing Act was intended to have a very broad impact on housing and communities across the country. The plain text, purpose, and structure purpose, structure, and plain language of the Act make clear that the Act was intended to apply to all sectors of the housing industry so that each would have common duties under the Act. For example, the plain text of the Act does not refer to an actor, but rather a prohibited action, meaning that all actors in all sectors of the housing industry are subject to the Act.
The Supreme Court in
In HUD's experience, insurance plays a significant role in the housing industry and in securing equal opportunity in housing in communities nationwide. Home seekers must be able to access mortgage insurance and homeowners insurance in order to become home owners. Multifamily housing owners and managers must be able to obtain property and hazard insurance in order to obtain financing and manage the risks of their operations. These examples show how different sectors of the housing economy interact, and how the exclusion of one sector of the housing economy from the Act's coverage would pose a barrier to equal opportunity in housing. In its fair housing investigations, HUD has encountered housing providers who will not rent to individuals with disabilities because of insurance-related concerns.
Even if HUD had authority to exempt insurance categorically, HUD finds that such an exemption for a single industry would neither be workable nor consistent with the purpose of the Act. HUD makes this determination for the reasons it stated in its 2016 Supplemental Notice regarding this subject, some of which is reiterated here, as well as for the following additional reasons. Congress has stated that the Act is intended to provide for fair housing throughout the United States,
HUD notes that multiple court decisions have long found discriminatory effects claims against insurance practices to be actionable.
HUD finds that the concerns raised by the insurance industry do not outweigh these fundamental considerations. This rule sets out a framework by which liability under the Act may be determined; liability arises only for those insurance practices that actually or predictably result in a discriminatory effect and lack a legally sufficient justification. The framework takes into account any defendant's legitimate interest in the challenged practice—including an insurance defendant. As discussed below, HUD finds that any conflict with a specific state insurance law can and should be addressed on a case-by-case basis in the context of that state law.
In sum, the case-by-case approach set out in this final rule appropriately weighs the relevant factors, which include HUD's obligation to enforce the Act, the diversity of potential discriminatory effects claims, the variety of insurer business practices, and the differing insurance laws of the states, as they currently exist or may exist in the future. Given these considerations, HUD believes that it would be impossible for the agency to define the scope of insurance practices covered by an exemption with enough precision to avoid case-by-case disputes over its application. Accordingly, HUD has determined that categorical exemptions or safe harbors for insurance practices are unworkable and inconsistent with HUD's statutory mandate.
In addition, HUD finds that the commenters have misconstrued the referenced cases. HUD notes, for example, that
Furthermore in
Commenters noted that risk-based pricing is the primary tool to ensure that rates are not unfairly discriminatory, as defined by state insurance codes. Commenters stated that in the context of insurance, unfair discrimination means treating similar risks in a dissimilar manner, which is different from discrimination under the Act. They stated that a rate is unfairly discriminatory if the premium differences do not correspond to expected losses and average expenses.
Commenters stated that the proposed rule would force insurers to eliminate
Other commenters disagreed, stating that the proposed rule appropriately applies to insurance. A commenter stated that application of the 2013 Rule and 2016 Supplement
Risk-based decision making is not unique to insurance, and discriminatory effects liability has proven workable in other contexts involving complex risk-based decisions, such as mortgage lending, without the need for exemptions or safe harbors. Indeed, all businesses covered by the Act make risk-based decisions. For example, landlords assess risk when they select tenants, set rental rates, and decide whether to require deposits. The Act requires that such risk-based determinations not be based on protected characteristics, in whole or in part. Moreover, some states specifically provide for discriminatory effects liability against insurers under state laws, further undermining the claim that providing for such liability as a matter of federal law threatens the fundamental nature of the industry.
Unfortunately, the history of discrimination in the homeowners insurance industry is long and well documented,
Furthermore, HUD's long experience in administering the Act counsels that discriminatory effects liability does not threaten the fundamental nature of the insurance industry. Putting aside the length of time insurers have been subject to discriminatory effects liability under the statute itself, the industry has been subject to the 2013 Rule for ten years and the calamitous results commenters claimed would come to pass have not occurred. HUD's position that discriminatory effects liability applies to insurance dates back more than three decades, as does the industry's concern that such liability makes it “near impossible for an insurer to successfully defend himself.”
Based on its experience in administering and enforcing the Fair Housing Act, HUD believes that a broad exemption would immunize a host of potentially discriminatory insurance practices that do not involve actuarial or risk-based calculations, such as marketing, claims processing, and payment. In addition, a discriminatory effects claim can challenge an insurer's underwriting policies as “not purely risk-based” without infringing on the insurer's “right to evaluate homeowners insurance risks fairly and objectively.”
HUD likewise declines to craft a safe harbor for any specific risk-based factor because it would be overbroad, foreclosing claims where the plaintiff could prove the existence of a less discriminatory alternative, such as an alternative risk-based practice.
For HUD to select a few factors for per se exemption as a matter of law based on commenters' bare assertions about
The Act's broad remedial purpose is “to provide . . . for fair housing throughout the United States.”
In light of the long, documented history of discrimination in the homeowners insurance industry,
Other commenters opposed an exemption for insurers, with a commenter specifically noting that
Commenters further stated that all insurance claims will fail as a matter of law because there can never be a robust causal link between legitimate risk factors and any disparate impact. According to them, risk-based factors do not consider protected characteristics, and they are mandated or approved by state law, limiting insurer discretion. These commenters stated that any disparate impact caused by socioeconomic factors is beyond the control of insurers. Moreover, they stated that because state laws limit insurer discretion, these laws make it impossible to ascribe any discriminatory effects in underwriting and pricing to an insurer's own choices.
A commenter suggested that if HUD does not exempt or provide a defense for insurers, HUD should state in the final rule that disparate impact claims against risk-based pricing and underwriting practices cannot succeed. Commenters also asked HUD to commit not to bring disparate-impact challenges to risk-based insurance practices.
Some comments are premised on the faulty assumption that
HUD finds that claims against insurers will not fail categorically as a matter of law. HUD believes, contrary to commenters' assertions, it is possible for plaintiffs to establish a causal connection between an insurance practice and a discriminatory effect. HUD also believes that it is possible for plaintiffs to prove a less discriminatory alternative. HUD notes that the fact that risk-based pricing does not facially consider protected characteristics provides no support for the contention that plaintiffs cannot—or should be precluded from the opportunity to—prove that a particular policy that defendants claim is risk-based causes an unjustified discriminatory effect. A violation of the Act based on a discriminatory effects claim requires proof of an unjustified discriminatory effect because of a trait protected by the Act, not proof of intentional discrimination. The fact that state laws mandate that rates be actuarially sound, or risk-based, does not necessarily negate causation because insurers may not in fact be using risk factors that are actuarially sound or the least discriminatory set of risk factors that would achieve that end. Specifically, an actuarially sound practice may nonetheless cause an unjustified discriminatory effect if a less discriminatory alternative is available that also is actuarially sound and otherwise complies with state law. As other examples, commenters referenced ratemaking, price optimization, and credit scoring as examples of largely actuarially based practices that can incorporate elements of non-actuarially based subjective judgment or discretion, and thus cause an unjustified discriminatory effect. HUD finds this comment persuasive. HUD acknowledges that there may be scenarios where plaintiffs will be unable to show causation or demonstrate the existence of a less discriminatory alternative, but it is incorrect to say that all claims will fail as a matter of law. Thus, HUD declines to grant a categorical exemption on this basis.
Commenters, citing to
Other commenters, however, warned that a broad exemption for the homeowners insurance industry could go beyond underwriting practices to exclude unregulated practices like marketing, claims processing, and claims payment from disparate impact liability.
State regulators may effectively and efficiently ensure that premiums are actuarially justified and not excessive, inadequate, or unfairly discriminatory as defined by state insurance codes.
Commenters, citing
Commenters, citing
Commenters also cited to
Commenters stated that state anti-discrimination laws are irrelevant to whether the McCarran-Ferguson Act preempts a case under the Act, because McCarran-Ferguson asks only whether the application of federal law would invalidate, impair, or supersede state laws enacted for the purpose of regulating the business of insurance, and state antidiscrimination laws are not enacted for such purpose. Commenters said that even if a state's fair-housing law were identical to the Act and would permit a disparate-impact challenge to risk-based practices in state court, any federal litigation under the rule would still require federal courts to second-guess the actuarial soundness of insurance practices regulated by state law—-
Other commenters stated that the proposed rule does not undermine the state regulation of insurance and thus presents no conflict with McCarran-Ferguson. They stated that state authority to regulate insurance does not, on its own, create a conflict with federal law; rather this is a fact-specific determination that depends on the relevant state law, the conflict claimed and other case-specific variables. Commenters stated that many states have regulations that complement disparate-impact liability under the Act and, even if they do not, that does not necessarily mean there is a conflict with state law. Commenters cited
For example, in
HUD finds that whether in fact a particular policy or practice would create a conflict so as to preempt the Act is highly fact specific and depends on the particular state law and fair housing allegations in question. Accordingly, HUD has determined that a case-by-case approach is necessary and justified. McCarran-Ferguson, by its nature, requires such case-by-case analyses and contains no requirement that HUD provide categorical exemptions. McCarran-Ferguson requires a fact-intensive inquiry that will vary state by state and by claim. Even those cases in which an impermissible impairment under McCarran-Ferguson was found support the case-by-case approach herein adopted by HUD rather than the wholesale exemption sought by some commenters. For example, in
Precedent also demonstrates that, in some instances, state law may not preempt discriminatory effects claims against insurers even when an insurer points to a specific state law and alleges that it is impaired. Although the commenters provided examples of cases in which state laws were found to preempt particular discriminatory effects claims, other cases provide examples of state laws that were not. For instance, in
The many ways in which one state's insurance laws can differ from another's, as well as the ways in which a single state's insurance laws can change over time, mean that even an exemption for specific insurance practices would be overbroad and quickly outdated. For example, variations in state insurance laws have resulted in discriminatory effects challenges to similar insurance practices surviving a McCarran-Ferguson defense in some states but not in others.
A one-size-fits-all exemption is also inappropriate because insurance practices are not governed solely by “hermetically sealed” state insurance codes,
Furthermore, HUD finds that comments claiming there is necessarily always a conflict with state laws in violation of the McCarran-Ferguson Act rest on the false presumption that this final rule prohibits the use of risk-based pricing or would require insurers to consider protected traits of individual insureds in making decisions. As described in greater detail above, it does not. HUD also disagrees with commenters who stated that even if a state fair housing law prohibits practices having an unjustified discriminatory effect, the rule contravenes McCarran-Ferguson. As courts have found, and HUD agrees, in such circumstances there would be no conflict between the federal and state law at issue.
HUD disagrees with
In any event, disparate impact claims challenging insurance practices do not necessarily require courts to ascertain whether a practice complies with state law or is actuarially sound. Therefore, not all claims even implicate the reasoning of
Finally, HUD disagrees that the rule will lead to a deluge of lawsuits. The industry has been subject to the 2013 Rule for ten years and a HUD regulation on insurance for well over 30 years
HUD believes that some commenters appear to have misread the 2020 Rule to provide a complete exemption from disparate impact liability for insurers. It is plain from reading the 2020 Rule that it neither provided an exemption nor specified that McCarran-Ferguson reverse preemption always applies to insurance practices. It simply stated that the Fair Housing Act was not intended to “invalidate, impair, or supersede any law enacted by any state for the purpose of regulating the business of insurance.” HUD has reconsidered the 2020 Rule and concludes that this provision does not clarify how the Act and the McCarran-Ferguson Act interact. Nothing in the McCarran-Ferguson Act requires HUD to make this statement and it is not HUD's responsibility to interpret the McCarran-Ferguson Act. HUD has decided this statement is unnecessary and confusing, as evidenced by commenters' misreading of the provision, and declines to retain it.
As HUD stated in 2016, the agency has adopted a case-by-case approach on McCarran-Ferguson reverse preemption, as that law requires. This approach is appropriate given the variations in jurisprudence across circuits that currently exist and may continue to evolve over time.
Multiple courts examining the filed-rate doctrine in the context of Fair Housing Act claims have found the doctrine inapplicable, noting that the Supremacy Clause, rather than the filed-rate doctrine, applies.
As discussed above, HUD disagrees that the rule would threaten the health, solvency, and competitiveness of the market because no conflict exists with the filed-rate doctrine. Furthermore, insurers have been subject to the 2013 Rule for ten years, and disparate impact liability generally even longer, and the market effects alleged by commenters have not come to pass.
Other commenters stated that the 2013 Rule, 2016 Supplement, and proposed rule appropriately state that a case-by-case analysis is the correct approach for assessing whether discriminatory effects are unjustified for all industries, including insurers. Commenters explained that to create an exemption, HUD would need to outline highly specific standardized rules, which would not be possible as actuarial practices are constantly changing and evolving.
HUD also disagrees with comments predicting that the proposed rule would create increased compliance costs. As discussed above, insurers have been subject to discriminatory effects liability since well before the 2013 Rule and have been subject to the 2013 Rule for ten years, yet commenters have not demonstrated that the 2013 Rule has led to significantly higher compliance costs.
Other commenters stated that it makes practical sense for insurers to be covered by the proposed rule given a long and well documented history of discrimination in the insurance industry. Commenters noted that the insurance industry has been subject to discriminatory effects liability for several decades. A commenter noted that in the more than twenty years since the Act was amended, courts that have considered the issue have consistently held that the Act prohibits acts of discrimination by homeowners insurers.
Other commenters asked HUD to include such a provision, stating that otherwise, the rule's burden shifting framework necessitates data collection, which will create unnecessary costs and be especially burdensome and expensive for insurers because they do not already collect this data. Commenters stated that without the provision, the rule would expose businesses to liability risks by requiring them to obtain and store personal and potentially sensitive information about an individual's protected characteristics. Another commenter stated that requiring the collection of data would inappropriately shift the burden of proof from a plaintiff to a defendant.
Commenters also expressed concern that the only way for insurers to collect data regarding protected characteristics would be through self-reporting, which may result in incomplete or erroneous data, making compliance with the rule difficult. A commenter stated that disparate-impact challenges to risk-based practices in insurance would improperly inject race into the business of insurance by incentivizing or compelling insurers to collect and analyze data on protected characteristics to be able to mount a defense in the event of a disparate impact challenge. Commenters stated that insurers may be prohibited under state law from collecting protected trait data. Commenters added that: insurance company employees will be uncomfortable asking current or potential policy holders for information about their membership in a protected class; collecting demographic data regarding protected traits would invade customer's privacy; and asking about protected class characteristics could discourage applicants for insurance from seeking quotes.
HUD notes further that while data collection can be a means to identify practices that have or predictably will have a discriminatory effect, there are other ways of identifying such practices that do not require examining a business' own client pool. For example, businesses can look to publicly available datasets or studies related to their practices to see if their practices cause or predictably will cause a discriminatory effect. As HUD explained regarding the use of criminal records, “[a]cross the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.”
Moreover, concerns about how the rule would change industry practices—in particular what commenters say is the insurance industry practice of not collecting demographic data—do not square with the fact that current industry practice is based on a rule that has been in place, uninterrupted, since 2013, and based on the underlying law that has been in place for decades prior. Businesses that have not collected data over the past several decades will not be facing any change in the laws regulating their practices with HUD's recodification of the 2013 Rule.
Other commenters wrote in favor of retaining the “predictably” language in the rule. Commenters pointed out that courts, including
One commenter acknowledged that “predictability” is a necessary element to assess the disparate impact of a policy and an issue that
A commenter noted that caselaw and practical common-sense support that one need not wait until actual harm is inflicted before an action can be challenged. Another commenter noted that removing the predictably standard would unnecessarily increase the risk of harm to communities by taking away the ability to make claims for reasonable, foreseeable harm.
In contrast, other commenters stated that including the perpetuation of segregation provision is crucial to combatting segregation (including segregation based on disability and race), which is still a major problem today and can have devastating impacts on communities. Commenters said if HUD did not include this language, it would mean that HUD had adopted the view that perpetuation of segregation was not a central or relevant concern of disparate impact, that perpetuation of segregation was no longer a basis for liability under the Act, and/or that perpetuation of segregation liability would be collapsed into disparate impact liability, and only be evidence of a disparate impact claim, rather than an independent means of establishing a violation in and of itself. Commenters noted that reinstating the perpetuation of segregation language was important to eliminate the confusion that the 2020 Rule had caused through its removal, and to clarify that perpetuation of segregation is a distinct type of discriminatory effect under the Act. Commenters gave examples of activities which may unlawfully perpetuate segregation, including facially neutral zoning decisions whose real but disguised purpose is to exclude people of color, and the demolition or displacement of affordable housing leading to severely limited opportunities for people of color. Commenters said that removing the perpetuation of segregation provision would conflict with
HUD also disagrees that the final rule would chill the development of affordable and fair housing, including in predominantly minority neighborhoods. Commenters did not provide, and HUD is not aware of, any support for the proposition that this rule would have such an effect. Instead, this rule provides a framework for plaintiffs to challenge discriminatory housing decisions. And
In sum, HUD declines to eliminate the provision on perpetuation of segregation because doing so would lead to uncertainty over the state of the law, the provision is consistent with
In contrast, a commenter stated that the proposed rule would not require businesses to consider race or quotas. Other commenters stated that by requiring that a plaintiff prove that the challenged practice caused or predictably will cause a disparate impact rather than imposing liability based on statistical disparities alone or general societal discrimination, this rule addresses any concerns that disparate impact liability would cause defendants to resort to quotas.
Further, HUD's discussion above regarding the insurance underwriting processes explains the difference between being aware of protected traits to avoid discrimination (consistent with this final rule,
In addition, it is unclear how the commenter's proposed alternative language, that “discrimination on a group of persons is predictable through a robust causal link by the challenged policy or practice” would improve the rule or disincentivize quotas. On the contrary, HUD believes modifying the rule to incorporate this language would create confusion about the causal link between the policy and the effect discussed by
On the other hand, commenters supported HUD's continuation of the 2013 Rule's framework, stating that the 2020 Rule unjustifiably favors defendants because plaintiffs must meet a preponderance of the evidence standard to prove discrimination, but defendants are only required to show that a policy advances a legitimate interest. The commenters stated that this conflicts with well-established case law placing the burden on the defendant to prove that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests.
First, the rule does not require a defendant to show that its policy or practice does not cause a disparate impact. In fact, this rule does not require any party to prove a negative. While a defendant may choose to present evidence that the defendant's policy does not cause a discriminatory effect to rebut the plaintiff's evidence that it does, the plaintiff has the ultimate burden of proving that a defendant's policy caused (or predictably will cause) a discriminatory effect.
Nor does this rule place a greater evidentiary burden on defendants than on plaintiffs or otherwise shift the burden of proof entirely onto defendants. Under the rule, the plaintiff must prove through evidence (not speculation) that a challenged practice caused or predictably will cause a discriminatory effect (step one). Assuming the plaintiff meets this burden, the defendant must prove through evidence (not speculation) that a challenged practice is necessary to achieve one or more of its substantial, legitimate, nondiscriminatory interests (step two). If the plaintiff fails to meet its step one burden, defendant prevails, and if the defendant fails to meet its step two burden, the plaintiff prevails. It is the plaintiff—not the defendant—who carries the burden at two of the three steps in the burden shifting framework, including the final one. As HUD said in the 2013 Rule: “Requiring the respondent or defendant to introduce evidence (instead of speculation) proving that a challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests in order to benefit from the defense to liability is not different in kind from requiring the plaintiff to introduce evidence (not speculation) proving that a challenged practice caused or will predictably cause a discriminatory effect. As discussed in this preamble, the language of the Act makes clear that it is intended to address discrimination that has occurred or is about to occur, and not hypothetical or speculative discrimination.”
Although commenters specifically called out evidence that could support a complaint concerning a “predictable” disparate impact as “hypothetical” or “speculative” under the rule, this is incorrect. In the final rule's framework, neither the plaintiffs nor defendant may rely on hypothetical or speculative evidence. All parties must rely on evidence that is sufficiently rigorous and not speculative, and there is no requirement that either side rely solely on evidence of the already existing effects of defendants' adopted policy. For example, lenders routinely assess proposed policy changes using current data to determine whether, if adopted, the policy would have a disparate impact in the future. Data analysis like this—of the effects that a policy will have, rather than the effects a policy already has had—is neither “hypothetical” nor “speculative” and could be used by either a plaintiff or a defendant to support or rebut a predictable effects claim at step one. And just as a plaintiff can rely on evidence that the defendant's policy will predictably have certain effects, a defendant can rely on evidence that a proffered less discriminatory alternative to its policy will not work.
Moreover, characterizing the
Finally, HUD agrees with commenters who noted that the burden shifting framework in this rule strikes the appropriate balance between the interests of plaintiffs and defendants, and that the 2020 Rule upset this balance. For example, it required defendants to identify only a legitimate interest rather than an interest that is also substantial and nondiscriminatory. It removed the requirement that the defendant's challenged practice be necessary to achieving that legitimate interest. Additionally, the defendants' burden was reduced from one of proof to one of production. HUD notes that these changes were neither consistent with nor justified by the text of the Act or case law interpreting it.
In contrast, other commenters stated that the proposed rule already contains a sufficiently clear causation requirement. A commenter wrote that the 2013 Rule and federal jurisprudence have appropriately rejected any potential single test to define “discriminatory effect” through evaluating statistical evidence of causation, citing
In HUD's experience, identifying the specific practice that caused the alleged discriminatory effect will depend on the facts of a particular situation and therefore must be determined on a case-by-case basis. As has been recognized in the employment context under Title VII after
A robust causality requirement ensures that `[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact” and thus protects defendants from being held liable for racial disparities they did not create.'
HUD further declines to set statistical standards, including statistical thresholds, to require localized statistics, or note a “significance” requirement. HUD continues to believe, as it did in 2013, consistent with courts, that analyzing causation in these matters on a case-by-case basis is the best approach, especially given the wide variety of policies, practices, and discriminatory effects at issue in these types of cases.
As HUD explained in 2013, the requirement that a defendant prove with evidence the substantial, legitimate, nondiscriminatory interest supporting the challenged practice and the necessity of the challenged practice to achieve that interest is consistent with HUD's longstanding application of an effects framework under the Act, and is similar to the approach taken by other federal regulatory and enforcement agencies under ECOA
Other commenters supported the proposed burden of proof on defendants. These commenters noted that
Other commenters disagreed, stating that the proposed rule is consistent with
Furthermore, the Court in
Others stated that the proposed rule's failure to recognize practical business considerations, including profit making, as valid interests conflicts with
In contrast, other commenters claimed that it is best to maintain a case-by-case approach so that no justification is automatically deemed a substantial, legitimate, non-discriminatory interest despite its disparate impact on a protected class.
Commenters expressed that profit should not be a legally sufficient justification and that the proposed rule makes clear that there are no automatically valid objectives, such as maximizing profit. Commenters stated that allowing defendants to justify discriminatory policies under the guise of profit would render the discriminatory effects framework completely toothless, because it would
To the extent that commenters nonetheless ask HUD to substitute a “valid interest” standard out of a belief that the Court intended a lower standard rather than one synonymous with the existing step two standard, HUD believes that it would be inappropriate to do so. HUD notes that such a standard would not accord with the majority of judicial opinions concerning the Act, and so it would introduce unnecessary confusion.
Commenters stated that their proposed revisions to heighten a plaintiff's burden in step three are required by or consistent with
Commenters further stated that an equally effective standard for prevailing at step three of the analysis is required by
Other commenters supported retaining step three of the proposed rule, stating that the “less discriminatory alternative” requirement is consistent with judicial precedent and Congressional intent. They stated that an “equally effective alternative” requirement is not appropriate in the housing context where the practices covered by the Act are “not readily quantifiable.”
Commenters stated that the step three burden articulated by the 2020 Rule should not be retained for various reasons. Commenters said that the 2020 Rule's requirement that plaintiffs identify an equally effective alternative created too high a burden on plaintiffs; put defendant's financial gain above ensuring access to fair housing; departed from established precedent and the core purpose of the Act without justification; lowered the burden for defendants, such that clearly meritorious claims would be dismissed and the effectiveness of disparate impact liability as an incentive to identify less discriminatory alternative practices would be severely weakened; and improperly required plaintiffs to prove that any alternative is equally effective and does not impose materially greater costs. A commenter explained that if the 2020 Rule were retained, with its increased burdens on plaintiffs at step three and reduced burdens on defendants at step two, meritorious claims would be dismissed because it would shift much of the defendant's burden of proof at step two to the plaintiff to disprove at step three, insulating from scrutiny many policies that have an unjustified discriminatory effect. A commenter noted that the 2020 Rule's language was neither consistent with nor required by
As to other concerns that commenters suggested required revisions to step three, HUD notes that an unreasonable alternative practice that creates an undue burden on defendant would not satisfy plaintiff's three-step burden. Nor will a proposed less discriminatory alternative fail simply because there will be some amount of increased cost associated with the alternative policy. And nothing in the rule suggests that reasonable, valid policies and priorities of defendants will be second guessed or forced to be reordered. Step one of the burden shifting framework ensures that the only policies which will be examined further are ones that cause a disparate impact because of a protected characteristic. Step three ensures that any alternative policy proposed is less discriminatory and actually serves the interest the defendant has already identified in step two. Moreover, HUD disagrees that
In sum, HUD believes this provision and the structure of the burden shifting framework provide sufficient protections for defendants' business interests.
Without step three, defendants with practices that have a discriminatory effect will have little incentive to examine their policies to determine if there are less discriminatory options to achieve their goals, thus allowing practices having unjustified discriminatory effects to continue unchecked. The suggestion that there should be no third step would eliminate a full assessment as to whether the same interest could be served in a less discriminatory way. The third step allows the plaintiff to offer an alternative policy that is less discriminatory and that still accomplishes the legitimate interest identified by the defendant. If the third step were eliminated, “artificial, arbitrary, and unnecessary barriers” would remain in place despite the fact that they are unnecessary to achieve the defendant's stated purpose.
Commenters also stated that a third-party defense is necessary to protect insurers that conform to state laws and regulations on insurance in compliance with McCarran-Ferguson. They said that HUD cannot now say that the third-party defense is inconsistent with the Act when it said in the 2020 Rule that “in the event that unlawful discriminatory practices are mandated by statute or court order, the most effective way to eliminate the discrimination is to remove or modify the underlying statute or order that mandated the unlawful discrimination.” They also stated that HUD's proposal to remove the 2020 defense implies that HUD intends to improperly test the boundaries of its ability to preempt state regulations.
Other commenters supported HUD's proposal not to retain the third-party defense from the 2020 Rule, arguing that the defense would allow defendants to evade liability for illegal acts by showing that they complied with third party requirements that are themselves discriminatory. Commenters stated that the defense would deny plaintiffs the ability to address whether less discriminatory alternatives exist to the defendant's chosen method of meeting the third-party requirement. Commenters also stated that such a defense is contrary to the Act's preemption clause because it would prioritize compliance with local ordinances over federal civil rights obligations, even where there may be less discriminatory ways to comply with the third party's requirement, and even in exclusionary zoning cases. In addition, a commenter stated that a third-party defense would impede efforts to prevent algorithm-driven discrimination. Another commenter characterized the 2020 Rule's third-party defense as unnecessarily confusing and vague. A commenter stated that whether a party's discretion is limited by a third party should be addressed at the second step of the burden shifting framework, not at the pleading stage.
That does not mean that, as the 2020 Rule allowed, any time defendants are subject to a third-party requirement, the plaintiff's case will necessarily fail. As other commenters explained, there may be multiple ways of complying with a third-party requirement, some of which have an unjustified discriminatory effect and some of which do not. In those cases, the defendant caused the effect by opting for one way of complying with a third-party requirement over another that does not cause such an effect. A third-party defense such as was included in the 2020 Rule would allow defendants to avoid the requirement to utilize a less discriminatory alternative to comply with a third party requirement.
Commenters expressed numerous concerns about the defense. Commenters stated that this defense would have the practical effect of foreclosing many disparate impact claims based on algorithms and models and would shield such defendants from liability. Commenters stated that in creating this defense, the 2020 Rule impermissibly created exemptions for predictive models in the lending and insurance industry that have no basis in the Act or any other source of authority, because the Act does not grant HUD authority to create safe harbors or exceptions from discriminatory effects liability, and no court has ever held that entire categories of policies or practices that might otherwise be subject to challenge are exempt from such liability. Commenters also noted that HUD had previously explained why categorical exemptions from disparate impact liability are undesirable.
A commenter noted that the defense would shield a wide range of discriminatory policies and practices, because many discriminatory models would qualify for an exemption because of the 2020 Rule's novel “similarly situated individuals” analysis, for which there is no basis as a matter of law or as a matter of fact. As one commenter explained, it would be easy for defendants to show that a challenged policy or practice is intended to predict an outcome because that is what any predictive model claims to do, and it would be easy to show that the prediction represents a valid interest. Another commenter stated that the defense is based on an outdated academic theory of discrimination that relies on statistical disparities to absolve defendants of liability, without acknowledging the possibility that the defendant's policies contributed to the disparities.
Commenters noted that the defense would make it very difficult for plaintiffs to demonstrate that an alternative, less discriminatory policy would result in the
Commenters also described the defense as ambiguous and difficult for parties and courts to apply. Another commenter described this and other defenses as confusing and harmful, noting that the defense would obfuscate discrimination in lender models and algorithmic systems.
Moreover, commenters noted that the defense was promulgated without public notice and comment and was not a “logical outgrowth” of the 2019 Proposed Rule, thereby violating the APA.
Commenters suggested that HUD should have, as a safe harbor, a process where HUD provides concrete guidance to housing providers so that the housing providers do not have to wait until litigation to discover that their policy may violate the Act. Another commenter requested a safe harbor for entities that implement written policies that identify non-discriminatory goals, explain how the policy is reasonably calculated to achieve that goal, and conclude that the policy does not impose a greater burden on members of protected classes than it does on the wider population. Some commenters requested a safe harbor for credit unions that limit membership based on statutory requirements, explaining that while a disparate impact claim already would fail under the proposed rule because credit unions are legally unable to lend outside their membership, litigating these cases, even by just filing a motion to dismiss, is costly, particularly for small credit unions. They stated further that
Other commenters said no safe harbors should be provided for policies and practices that have discriminatory effects by limiting housing opportunities for protected groups. Commenters stated that the 2013 Rule, 2016 Supplement, and this rule appropriately apply a case-by-case disparate impact analysis to all housing related industries and agreed that this approach is consistent with the Act.
While HUD believes the rule provides a sufficiently clear framework under which specific practices can be evaluated, HUD will consider issuing more guidance as it deems appropriate.
In sum, HUD believes that this rule strikes a reasonable balance, in accordance with the Act and with caselaw, between allowing policies that permit landlords to advance their interests, even if those policies disproportionately adversely impact protected classes, while requiring landlords to demonstrate that their policies are necessary to advance those interests.
Other commenters stated that the 2020 Rule violated the APA and that the proposed rule would rightfully reinstate the standard set forth in the 2013 Rule. Commenters stated that changes made by the 2020 Rule were arbitrary and capricious and contrary to law. Commenters also stated that the 2020 Rule failed to explain why it was deviating from legal standards and failed to address that courts have easily applied existing disparate impact case law and
Furthermore, this final rule explains HUD's position after consideration of the comments HUD received on the proposed rule. As explained in the proposed rule, the facts that spurred HUD's decision to recodify the 2013 Rule include the consistent concerns expressed through thousands of public comments regarding the effect of the 2020 Rule's changes on disparate impact jurisprudence and protected classes, the concerns raised by the court in
HUD is not ignoring facts or circumstances that underlay HUD's 2020 Rule; rather, HUD is acknowledging its change in position, drawing on its experience in different ways than it did in the 2020 Rule, drawing on case law that did not exist when the 2020 Rule was promulgated, relying on other case law that the 2020 Rule downplayed and/or ignored, and drawing on new public comments about the final version of the 2020 Rule that did not exist when HUD decided to issue the 2020 Rule.
Consistent with the requirements of the Administrative Procedure Act, HUD has carefully responded to all public comments received in response to its notice of proposed rulemaking. HUD has determined that the discriminatory effects standard and burden-shifting framework in this rule appropriately implement, and are fully consistent with, the Fair Housing Act and governing law, including
Through this rule, HUD is taking two separate actions. First, HUD rescinds the 2020 Rule, removing 24 CFR 100.500 and the second and third sentences of 24 CFR 100.5(b), thus nullifying the 2020 Rule and eliminating any and all legal effect that the 2020 Rule could have. Second, HUD adds a new 24 CFR 100.500 and a new second sentence to 24 CFR 100.5(b). The new language in both sections is identical to the language in those sections of the Code of Federal Regulations that took effect on March 18, 2013, which HUD refers to throughout this preamble as “the 2013 Rule.” HUD intends the language promulgated today to be the only operative rule.
HUD intends these separate actions to be legally severable. In particular, in the event that any portion of § 100.500 or § 100.5(b) of this final rule is held to be invalid or unenforceable, HUD intends that the rescission of the 2020 Rule be unaffected. HUD believes that it would be more consistent with the plain language and legislative history of the Act for the Code of Federal Regulations to contain no language regarding discriminatory effects liability and for litigants to rely on existing jurisprudence than for any provision of the 2020 Rule to remain in effect. HUD has made this determination for all the reasons described elsewhere in this preamble, including that the 2020 Rule is inconsistent with such jurisprudence. In addition to rescinding the 2020 Rule for the reasons described more fully in this preamble, HUD's rescission will serve to resolve three pending lawsuits, all of which challenge the 2020 Rule as arbitrary and capricious and inconsistent with
HUD also intends that the rule be treated as severable in its applications to certain industries. Litigation brought by the insurance industry regarding the 2013 Rule is ongoing.
Executive Order 13563 (“Improving Regulation and Regulatory Review”) directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs, emphasizes the importance of quantifying both costs and benefits, of harmonizing rules, of promoting flexibility, and of periodically reviewing existing rules to determine if they can be made more effective or less burdensome in achieving their objectives. Under Executive Order 12866 (“Regulatory Planning and Review”), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (“OMB”) in accordance with the requirements of the order. This rule was determined to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866 (although not an economically significant regulatory action, as provided under section 3(f)(1) of the Executive Order).
In its proposed rule, HUD invited comments on whether any further analysis was needed to assess the impact of the rule, given the fact that the rule would simply be retaining the status quo and would therefore have no
Some commenters stated that the rule does not pass a cost benefit analysis, but they did not explain why this was so. Nor did they address HUD's explanation in the proposed rule as to why a deeper assessment of the impact of the rule was unnecessary. HUD continues to believe that this rule will provide significant benefits, while having no new impact on regulated entities, for the reasons explained earlier and summarized below.
As explained in 2013, a “uniform rule would simplify compliance with the Fair Housing Act's discriminatory effects standard, and decrease litigation associated with such claims. By providing certainty in this area to housing providers, lenders, municipalities, realtors, individuals engaged in housing transactions, and courts, this rule would reduce the burden associated with litigating discriminatory effect cases under the Fair Housing Act by clearly establishing which party has the burden of proof, and how such burdens are to be met. With a uniform standard, entities are more likely to conduct self-testing and check that their practices comply with the Fair Housing Act, thus reducing their liability and the risk of litigation. A uniform standard is also a benefit for entities operating in multiple jurisdictions. Also, legal and regulatory clarity generally serves to reduce litigation because it is clearer what each party's rights and responsibilities are, whereas lack of consistency and clarity generally serves to increase litigation. For example, once disputes around the court-defined standards are eliminated by this rule, non-meritorious cases that cannot meet the burden under § 100.500(c)(1) are likely not to be brought in the first place, and a respondent or defendant that cannot meet the burden under § 100.500(c)(2) may be more inclined to settle at the pre-litigation stage.”
When deciding whether to enact this rule, HUD also considered whether any part of the 2020 Rule should be retained, which is evidenced by our discussion of various parts of the 2020 Rule elsewhere. It decided that no substantive portion of the 2020 Rule should be incorporated into this rule. Only three additional illustrations of discriminatory practices under the Act at § 100.70(d) are incorporated from the 2020 Rule, which were not specifically objected to by commenters and present no substantive change from the 2013 Rule. The 2020 Rule would impose significant costs to the agency, the public, and regulated entities while affording little, if any, benefit. As described in further detail elsewhere in this preamble, the 2020 Rule introduced new and confusing standards, including standards not found anywhere in case law, that were largely untested. Accordingly, the 2020 Rule would require regulated entities to spend more resources attempting to ascertain what the 2020 Rule means and how to defend against any potential claims, as well as increased spending that could last for years as courts try to interpret what the 2020 Rule means. Relatedly, entities that are covered by the Fair Housing Act have a serious reliance interest in the 2013 Rule, which has been in place for ten years. Conversely, these entities should have little to no reliance interest in the 2020 Rule, which never went into effect.
Furthermore, HUD's experience investigating and litigating discrimination cases under various regulatory frameworks informs that the 2020 Rule would make it significantly more difficult, almost impossible, to bring a discriminatory effects claim, and significantly more difficult to provide sound guidance to housing providers attempting to comply with the Act, at great cost to the agency in terms of its mission and its resources. Extra staff time would need to be spent to determine how to apply the 2020 rule to current cases being investigated and new cases that will be filed, and to determine how to address various guidance documents for the public and grantees which have been issued based on the 2013 Rule. Additionally, allowing unlawful discrimination to go unchecked and unremedied because of burdensome and confusing pleading and proof standards would come at great cost to the public who, as the Act mandates, are entitled to equal access to housing throughout the country.
The Regulatory Flexibility Act (“RFA”) (5 U.S.C. 601
As discussed above, this Rule will continue to apply the 2013 Rule, which has been in effect uninterrupted for ten years. HUD concludes, as it did when it published the 2013 Rule, that the majority of entities, large or small, currently comply and will remain in compliance with the Fair Housing Act. All entities, large and small, have been subject to the Fair Housing Act for over fifty years and subject to the 2013 Rule for ten years. For the minority of entities that have failed to institutionalize methods to avoid engaging in illegal housing discrimination and plan to come into compliance as a result of this rulemaking, the costs will be the costs of compliance with a preexisting statute and regulation. This rule does not change substantive obligations; it merely recodifies the regulation that more accurately reflects the law. Any burden on small entities is simply incidental to the pre-existing requirements to comply with this body of law. Furthermore, HUD anticipates that this rule will eliminate confusion for all entities, including small Fair Housing Advocacy organizations, by ensuring HUD's regulations accurately reflect current standards. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. HUD invited comment on this certification in the proposed rule. HUD did not receive any comments providing analysis of the number of small entities which commenters believe may be affected by this regulation. Some commenters stated that application of discriminatory effects law to the
This rule sets forth nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (“UMRA”) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
Aged, Civil rights, Fair housing, Incorporation by reference, Individuals with disabilities, Mortgages, and Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, HUD amends 24 CFR part 100 as follows:
42 U.S.C. 3535(d), 3600-3620.
(b) This part provides the Department's interpretation of the coverage of the Fair Housing Act regarding discrimination related to the sale or rental of dwellings, the provision of services in connection therewith, and the availability of residential real estate-related transactions. The illustrations of unlawful housing discrimination in this part may be established by a practice's discriminatory effect, even if not motivated by discriminatory intent, consistent with the standards outlined in § 100.500.
(d) * * *
(5) Enacting or implementing land-use rules, ordinances, procedures, building codes, permitting rules, policies, or requirements that restrict or deny housing opportunities or otherwise make unavailable or deny dwellings to persons because of race, color, religion, sex, handicap, familial status, or national origin.
Liability may be established under the Fair Housing Act based on a practice's discriminatory effect, as defined in paragraph (a) of this section, even if the practice was not motivated by a discriminatory intent. The practice may still be lawful if supported by a legally sufficient justification, as defined in paragraph (b) of this section. The burdens of proof for establishing a violation under this subpart are set forth in paragraph (c) of this section.
(a)
(b)
(i) Is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3612, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and
(ii) Those interests could not be served by another practice that has a less discriminatory effect.
(2) A legally sufficient justification must be supported by evidence and may not be hypothetical or speculative. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in paragraphs (c)(2) and (3) of this section.
(c)
(2) Once the charging party or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests of the respondent or defendant.
(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the charging party or plaintiff may still prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect.
(d)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; notification of issuance of Letter of Authorization.
NMFS, upon request from the U.S. Navy (Navy), hereby issues regulations to govern the unintentional taking of marine mammals incidental to construction at the Portsmouth Naval Shipyard in Kittery, Maine, over the course of 5 years (2023-2028). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Effective from April 1, 2023, through March 31, 2028.
A copy of the Navy's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Reny Tyson Moore, Office of Protected Resources, NMFS,
We received an application from the Navy requesting 5-year regulations and authorization to take multiple species of marine mammals. This rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to 5 years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this rule containing 5 year regulations, and for any subsequent Letters of Authorization (LOAs). As directed by this legal authority, this rule contains mitigation, monitoring, and reporting requirements.
Following is a summary of the major provisions of this rule regarding the Navy's construction activities. These measures include:
• Required monitoring of the in-water construction areas to detect the presence of marine mammals before beginning in-water construction activities;
• Shutdown of in-water construction activities under certain circumstances to avoid injury of marine mammals;
• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power; and
• Implementation of a bubble curtain during rock hammering and down-the-hole (DTH) cluster drilling to reduce underwater noise impacts.
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 May 9, 2022, NMFS received a request from the Navy for authorization to take marine mammals incidental to construction activities related to the multifunctional expansion and modification of Dry Dock 1 at Portsmouth Naval Shipyard in Kittery, Maine. We provided comments on the application, and the Navy submitted revised versions and responses to our comments on July 5, 2022, August 15, 2022, August 19, 2022, and August 25, 2022, with the latter version deemed adequate and complete. On September 1, 2022, we published a notice of receipt of the Navy's application in the
On October 19 and 25, 2022, NMFS was notified by the Navy of project modifications and shifting Fleet submarine schedules that required the resequencing of certain activities associated with the construction at Dry Dock 1 in order to accommodate the modifications and meet the new vessel docking demands. On October 31, 2022, the Navy submitted an addendum to its
NMFS previously issued five IHAs to the Navy for waterfront improvement work at the Portsmouth Naval Shipyard: in 2016 (81 FR 85525, November 28, 2016), 2018 (83 FR 3318, January 24, 2018), 2019 (84 FR 24476, May 28, 2019), a renewal of the 2019 IHA (86 FR 14598, March 17, 2021), and in 2022 (87 FR 19886, April 6, 2022). The most recent IHA (87 FR 19886) provided authorization to take marine mammals during the first year of the construction project described in this final rule. As required, the applicant provided monitoring reports (available at:
Multifunctional Expansion of Dry Dock 1 (P-381) is one of three projects that support the overall expansion and modification of Dry Dock 1, located in the western extent of the Portsmouth Naval Shipyard. The two additional projects, construction of a super flood basin (P-310) and extension of portal crane rail and utilities (P-1074), are currently under construction. In-water work associated with these projects was completed under the aforementioned separate IHAs issued by NMFS. The projects have been phased to support Navy mission schedules. P-381 will be constructed within the same footprint of the super flood basin over an approximate 7-year period, during which 5 years of in-water work will occur. An IHA was issued by NMFS for the first year of P-381 construction activities between April 1, 2022 and March 31, 2023 (87 FR 19866, April 6, 2022). This request is associated with the remaining 4 years of P-381 in-water construction activities planned to occur from April 1, 2023 through March 31, 2028, as well as for additional in-water construction activities associated with the removal of emergency repair components of the super flood basin that will occur during the period of effectiveness for the regulations. Although the in-water construction described in this rule is anticipated to be completed by December 2026, unanticipated schedule delays could result in the Navy conducting construction activity over the full 5 years.
The purpose of the Navy's project (P-381) is to modify the super flood basin to create two additional dry docking positions (Dry Dock 1 North and Dry Dock 1 West) in front of the existing Dry Dock 1 East. The Navy's specified activity also includes emergency repairs of the P-310 super flood basin. Construction activities will include the excavation and/or installation of 1,118 holes, 198 shafts, and 580 sheet piles via impact and vibratory pile driving, hydraulic rock hammering, rotary drilling, and mono and cluster DTH. The construction activities are expected to require approximately 2,498 days if the activities are considered independently over the 5-year period. However, the actual construction duration is expected to be within 4 years as many of the construction activities will occur concurrently.
The in-water construction activities associated with this rule are anticipated to begin in April 2023 and proceed to December 2026 (4 years); however, the incidental take authorization is valid for 5 years in the event of unexpected scheduled delays. In-water construction activities will occur consecutively over a 4-year period. The Navy plans to conduct all in-water work activities with expected potential for incidental harassment of marine mammals during daylight hours.
Table 1 provides the estimated schedule and production rates for P-381 construction activities. Many of the activities included in Table 1 will span across multiple construction years and/or will occur concurrently. Because of mission requirements and operational schedules at the dry docking positions and berths, this schedule is subject to change. In-water construction activities for P-381 will occur consecutively over a 4-year period. Note, for the purposes of this analysis, the construction years are identified as years 2 through 5; Year 1 of the Navy's construction activities is currently ongoing in association with a previously issued IHA (87 FR 19886, April 6, 2022). Vibratory pile driving and extraction is assumed to occur for 141 days. Impact pile driving will occur for 34 days. DTH excavation (mono-hammer and cluster drill) will occur for 1,446 days. Rotary drilling will occur for 238 days (assuming that casings and sockets for cluster drills will be set, excavated, and removed in a single day). Rock hammering will occur for 277 days. Note that pile driving days are not necessarily consecutive, and certain activities may occur at the same time, decreasing the total number of actual in-water construction days. The contractor could be working in more than one area of the berths at a time.
The shipyard is located in the Piscataqua River in Kittery, Maine. The Piscataqua River originates at the boundary of Dover, New Hampshire, and Eliot, Maine (Figure 1). The river flows in a southeasterly direction for 2,093 meters (m) (13 miles (mi)) before entering Portsmouth Harbor and emptying into the Atlantic Ocean. The lower Piscataqua River is part of the Great Bay Estuary system and varies in width and depth. Many large and small islands break up the straight-line flow of the river as it continues toward the Atlantic Ocean. Seavey Island, the location of the specified activities, is located in the lower Piscataqua River approximately 500 m, 1,640 feet (ft) from its southwest bank, 200 m (656 ft) from its north bank, and approximately 4 kilometers (km) (2.5 mi) from the mouth of the river.
Water depths in the project area range from 6.4 m (21 ft) to 11.9 m (39 ft) at Berths 11, 12, and 13. Water depths in the lower Piscataqua River near the project area range from 4.6 m (15 ft) in the shallowest areas to 21 m (69 ft) in the deepest areas. The river is approximately 914 m (3,300 ft) wide near the project area, measured from the Kittery shoreline north of Wattlebury Island to the Portsmouth shoreline west of Peirce Island. The furthest direct line of sight from the project area is 1,287 m (0.8 mi) to the southeast and 418 m (0.26 mi) to the northwest.
The nearshore environment of the Shipyard is characterized by a mix of hard bottom, gravel, soft sediments, rock outcrops, and rocky shoreline associated with fast tidal currents near the installation. The nearshore areas surrounding Seavey Island are predominately hard bottom (65 percent of benthic habitat) and gravel (26 percent) habitat, with only 9 percent soft bottom sediments within the surveyed area around Seavey Island (Tetra Tech, 2016). Much of the shoreline in the project area is composed of hard shores (rocky intertidal). In general, rocky intertidal areas consist of bedrock that alternates between marine and terrestrial habitats, depending on the tide. Rocky intertidal areas consist of “bedrock, stones, or boulders that singly or in combination cover 75 percent or more of an area that is covered less than 30 percent by vegetation” (Federal Geographic Data Committee, 2013).
The lower Piscataqua River is home to Portsmouth Harbor and is used by commercial, recreational, and military vessels. Between 150 and 250 commercial shipping vessels transit the lower Piscataqua River each year (Magnusson
The Navy's P-381 project will modify the super flood basin to create two additional dry docking positions (Dry Dock 1 North and Dry Dock 1 West) in front of the existing Dry Dock 1 East. The super flood basin provides the starting point for the P-381 work. Several steps are required to convert the super flood basin to a dry dock with two positions fully capable of supporting the maintenance of submarines while maintaining access to the existing interior dry dock (Dry Dock 1 East). The dry dock positions (including the center wall) will be constructed using large precast segments (referred to as monoliths) that require both sidewall and base support. The monoliths will be manufactured offsite and transported to the construction site. Segments will be floated and/or lifted into place to create the center wall, followed by Dry Dock 1 North, and finally Dry Dock 1 West. Once the monoliths are set and grouted in place, the respective dry docks can be dewatered allowing the remaining interior construction to be performed in dry conditions.
P-381 years 2 through 5 (
The Navy's request also considers emergency repairs of the P-310 super flood basin. During P-310 super flood testing in January 2022, excessive exfiltration (
Several additional preparatory activities (
The work remaining for P-381 can be generally grouped into five categories for ease of explanation: temporary structures, mechanical bedrock removal, continued demolition of super flood basin wall components, center wall tie-downs, and dry dock foundation and gantry crane support. Each category involves one or more activities expected to generate noise that could result in injury or harassment of marine mammals. Some of these activities are a continuation of work started in year 1, which were covered under a separate IHA issued by NMFS on April 6, 2022 (87 FR 19886).
The temporary guide wall along the Berth 11 end wall installed during year 1 (60 28-inch wide, Z-shaped sheet piles) will be removed with a vibratory hammer. An extension to the temporary cofferdam around the Dry Dock 1 entrance structure installed during P-381 year 1 will also be constructed. The extension will consist of 14 28-inch wide, Z-shaped sheet piles. The extension and the cofferdam (96 28-inch wide, Z-shaped sheet piles) will be removed in 2024 using a vibratory hammer.
A temporary work trestle will be constructed to support the excavation of large shafts within the individual dry docking positions. The trestle will be installed in Dry Dock 1 North first and then relocated to Dry Dock 1 West. The trestle system will be supported by 4 84-inch steel pipe piles and will be relocated five times within each dry dock. As a result, the piles will be installed and removed 20 times in Dry Dock 1 North and 20 times in Dry Dock 1 West. The piles will be installed with a cluster drill consisting of multiple DTH hammers and removed with a rotary drill. Before the cluster drill will be deployed, a 102-inch casing will be set into bedrock and a 5-ft (1.5-m) deep rock socket will be excavated with a rotary drill (see Figure 1-4 in the Navy's application). The socket will be filled with concrete and a second, 84-inch casing will be installed inside the larger casing and set in the concrete. No drilling will be required to install the second casing. The outer casing will then be removed with a rotary drill. The 84-inch diameter cluster drill will operate independently inside the second casing to excavate the shaft. Once the shaft is drilled the inner casing will be removed by torch cutting.
A temporary tie-in consisting of 15 28-inch wide, Z-shaped sheet piles will be installed between the center wall foundation and the west closure wall at Dry Dock 1 West. Twenty-three 28-inch wide, Z-shaped sheet piles will also be installed on the easterly end of Dry Dock 1 West to provide a similar temporary tie-in to the center wall foundation near the entrance to Dry
To support excavation activities along Berth 1, 28 28-inch wide, Z-shaped sheet piles will be installed at the southeast corner of the berth using a combination of vibratory and impact hammers. These piles will be removed using a vibratory hammer.
Bedrock will be removed by breaking it up with a hydraulic hammer (
The installation of a structural support waler (steel beam) at Berth 1 will also be completed. To complete the installation of the waler, about 98 m (320 linear ft) of concrete wall will be demolished using a hydraulic rock hammer.
The future Dry Dock 1 North and Dry Dock 1 West require significant structural reinforcement to provide an adequate foundation for the installation of the large pre-cast monolith structures forming the dry dock interior. Reinforcement of the individual dry dock foundations and walls will begin first at Dry Dock 1 North and, once completed, continue at Dry Dock 1 West. Twenty 78-inch diameter shafts will be excavated along the Berth 11 face and head wall to support the walls of Dry Dock 1 North. Along the floor of Dry Dock 1 North, 23 108-inch diameter shafts will be excavated for the installation of the foundation support piles and 18 78-inch diameter shafts will be excavated for the installation of leveling piles (
The dry dock foundation and wall support pile and leveling pile shafts will be filled with concrete to create the support piles for the dry dock walls and floors. The shafts will be excavated using a cluster drill consisting of multiple DTH hammers in the same manner as previously described for the temporary work trestle piles. Once the wall and foundation support piles and leveling piles for Dry Dock 1 North have been installed, foundation and wall support piles and leveling piles will be installed for Dry Dock 1 West. Twenty-two 78-inch diameter shafts will be excavated along the Berth 1 face to support the walls of Dry Dock 1 West. Twenty-three 108-inch diameter shafts will be excavated along the floor of Dry Dock 1 West for the installation of foundation support piles and 18 78-inch shafts will be excavated for the installation of leveling piles (
The large concrete monolithic sections used to create the dry docks and the center wall separation will be placed using a gantry crane. The gantry crane system will be structurally supported by the installation of 16 72-inch diameter shafts installed along the western extent of the Berth 1 face. The shafts will be installed using a DTH cluster drill as described for the temporary work trestle piles. The casing sizes and rotary drill sizes for the gantry crane support shafts are specified in Table 1.
Testing of the super flood basin on January 5, 2022 resulted in excess exfiltration through Berths 1 and 2, prompting the need for emergency repairs along Berth 1 as well as between the super flood basin entrance structure and the west closure wall. Emergency repairs consisted of the installation of sheet piles and the tremie pouring of concrete to fill in gaps along the structure walls and floor. Installation of emergency repairs at Berth 1 and the installation and removal of emergency repairs at the west closure wall and entrance structure occurred before the period described in the Navy's LOA application. Only the removal of Berth 1 emergency repair components will occur during the requested LOA period.
The removal of the 216 28-inch wide, Z-shaped sheet piles along the Berth 1 face will be completed through direct pulling via barge-mounted crane or by vibratory hammer. Specific methods will be determined by the contractor based on resistance to extraction from the seabed. Direct pulling via crane is not anticipated to generate harmful levels of underwater sound. If required, the use of the vibratory hammer to extract the installed sheet piles will be limited to an initial effort to break the sheets loose, allowing them to be directly pulled out. As a conservative measure, vibratory extraction of these sheet piles is assumed for all analyses.
The removal of 765 cubic meters (1,000 cy) of tremie concrete is anticipated to require use of a hydraulic rock hammer to break up material into smaller pieces. Smaller pieces will then be retrieved via excavator bucket for offsite disposal. The Navy estimates daily active use of the rock hammer for the removal of concrete from emergency repairs to be 4 hours per day.
Only 28-inch wide, Z-shaped sheet piles will be installed or removed with pile-driving equipment during P-381 construction. The installation of 28-inch wide, Z-shaped steel sheet piles will be installed initially using vibratory means and then finished with impact hammers, if necessary. Impact hammers will also be used to push obstructions out of the way and where sediment conditions do not permit the efficient use of vibratory hammers. Pile removal activities will use cranes and vibratory hammers exclusively.
The removal of bedrock and concrete and the demolition of concrete shutter panels at Berth 11 and granite blocks and sheet piles at Berth 1 during P-381 construction will be by mechanical means. These features will be demolished using a hydraulic rock hammer (
Two methods of rock excavation will be used during P-381 construction; DTH excavation and rotary drilling. During P-381 construction, rotary drilling will be used to set the casings and pre-drill rock sockets for DTH cluster drills. DTH excavation using mono-hammers will be used to create shafts for rock anchors and tie downs and for the excavation of relief holes during mechanical bedrock removal. For the largest shafts (greater than 42-inches in diameter), DTH excavation will use a cluster drill. A cluster drill uses multiple mono-hammers within a single bit to efficiently break up bedrock and create large diameter holes (see Figure 1-5 in the Navy's application).
In order to maintain project schedules, it is likely that multiple pieces of equipment will operate at the same time within the basin. No ancillary activities are anticipated during the construction period that will require unimpeded access to the super flood basin. Therefore, it is anticipated that there will be space available within the project area for additional construction equipment. A maximum of 13 pieces of equipment could potentially operate in the project area at a single time. While this is an unlikely scenario, it could occur for a very brief period. Construction equipment will be staged along the perimeter of the super flood basin (Berth 11, Berth 1 and head wall) as well on multiple barges within the super flood basin. Table 2 provides a summary of possible equipment combinations that could be used simultaneously over the course of the construction period.
Mitigation, monitoring, and reporting measures are described in detail later in this document (please see Mitigation and Monitoring and Reporting).
A notice of NMFS' proposed rulemaking to the Navy was published in the
During the 30-day public comment period, NMFS received no comments.
No public comments were received during the comment period; however, NMFS made a few minor clarifications and corrections in this final rule. In the sections of the documents that refer to the use of a bubble curtain, it was established that the bubble curtain will be used in cases where the Level A harassment zone extends to the full region of influence (ROI). To clarify this further, NMFS adds that this refers to all rock hammering and DTH cluster drilling. In addition, for bubble curtains, NMFS clarified that the air flow to the bubblers will be balanced across the entrance openings to the super flood basin, rather than the piles. Finally, NMFS removed the mitigation condition requiring that protected species observers (PSOs) work in shifts lasting no longer than 4 hours (hrs) with at least
Sections 3 and 4 of the 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 we refer the reader to these descriptions, referenced here, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SARs;
Table 3 lists all species or stocks for which take is expected and authorized for this activity, 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. 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 serious injury or mortality is expected to occur, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species or stocks 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 stocks managed under the MMPA in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in Table 3 are the most recent available at the time of publication (including from the 2022 draft SARs) and are available online at:
As indicated above, all five species (with five managed stocks) in Table 3 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur.
A detailed description of the species likely to be affected by the Navy's construction activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
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. 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 (2018a) for a review of available information.
The effects of underwater noise from the Navy's construction activities have the potential to result in behavioral harassment of marine mammals in the vicinity of the project area. The notice of the proposed rulemaking (88 FR 3146, January 18, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from the Navy's construction activities on marine mammals and their habitat. That information and analysis is referenced in this final rule and is not repeated here; please refer to the notice of the proposed rulemaking (88 FR 3146, January 18, 2023).
This section provides an estimate of the number of incidental takes authorized under the rule, which will inform both NMFS' consideration of “small numbers” and NMFS' negligible impact determinations.
As described previously, no serious injury or mortality is anticipated or authorized for this activity. 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 will primarily be by Level B harassment, as use of the acoustic sources (
For acoustic impacts, 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) the number of days of activities. We note that while these factors can contribute to a basic calculation to provide an initial prediction of potential takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of 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).
The Navy's activities include the use of continuous (vibratory pile driving/removal, rotary drilling) and intermittent (impact pile driving, rock hammering) sources, and therefore the RMS SPL thresholds of 120 and 160 dB re 1 μPa, respectively, are applicable. DTH systems have both continuous and intermittent components as discussed in the
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
Here, we describe operational and environmental parameters of the activity that are used in estimating the area ensonified above the acoustic thresholds, including source levels and transmission loss coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the project. Marine mammals are expected to be affected via sound generated by the primary components of the project (
With regards to the proxy values summarized in Table 6, very little information is available regarding source levels for in-water rotary drilling activities. As a conservative measure and to be consistent with previously issued IHAs for similar projects in the region, a proxy of 154 dB RMS is used for all rotary drilling activities (Dazey, 2012).
NMFS recommends treating DTH systems as both impulsive and continuous, non-impulsive sound source types simultaneously. Thus, impulsive thresholds are used to evaluate Level A harassment, and the continuous threshold is used to evaluate Level B harassment. The Navy consulted with NMFS to obtain the appropriate proxy values for DTH mono- and cluster-hammers. With regards to DTH mono-hammers, NMFS recommended proxy levels for Level A harassment based on available data regarding DTH systems of similar sized piles and holes (Table 6) (Denes
At the time of the Navy's application submission, NMFS recommended that the RMS SPL at 10 m should be 167 dB when evaluating Level B harassment (Heyvaert and Reyff, 2021 as cited in NMFS, 2021b) for all DTH pile/hole sizes. However, since that time, NMFS has received additional clarifying information regarding DTH data presented in Reyff and Heyvaert (2019) and Reyff (2020) that allows for different RMS SPL at 10 m to be recommended for piles/holes of varying diameters (NMFS, 2022). Therefore, the following proxy RMS SPLs at 10 m are used to evaluate Level B harassment from this sound source in this analysis (Table 6): 156 dB RMS for the 4 to 6 inch mono hammers (Reyff and Heyvaert, 2019; Reyff, 2020), 167 dB RMS for the 9 inch mono-hammers (Heyvaert and Reyff, 2021), and 174 dB RMS for all DTH cluster drills greater or equal to 74 inches (Reyff and Heyvaert, 2019; Reyff, 2020). See Footnote 6 in Table 6.
Rock hammering is analyzed as an impulsive noise source. For purposes of this analysis, it is assumed that the hammer will have a maximum strike rate of 460 strikes per minute and will operate for a maximum duration of 15 minutes before needing to reposition or stop to check progress. Therefore, noise impacts for rock hammering activities are assessed using the number of blows per 15-minute interval (6,900 blows) and the number of 15-minute intervals anticipated over the course of the day based on the durations provided in Tables 1, 7, and 8. As with rotary drilling, very little information is available regarding source levels associated with nearshore rock hammering. In previous IHAs related to the Shipyard, NMFS relied on preliminary measurements from the Tappan Zee Bridge replacement project (Reyff, 2018a, 2018b) as well as data from a WSDOT concrete pier demolition project (Escude, 2012) to inform proxy SLs for rock hammering. However, a few discrepancies in the preliminary data of the Tappan Zee Bridge reports have been identified resulting from NMFS' further inspection into the report's data. Therefore, the SLs reported only from the Escude (2012) concrete pier demolition project are used as proxy values for rock hammering activities associated with P-381 (Table 6).
This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Navy's activities in the absence of specific modelling. All Level B harassment isopleths are reported in Tables 7 and 8 considering RMS SLs.
The calculated maximum distances corresponding to the underwater marine mammal harassment zones from impulsive (impact pile driving, rock hammering, DTH) and non-impulsive (vibratory pile driving, rotary drilling) noise and the area of the harassment zone within the ROI are summarized in Tables 7 and 8, respectively. Sound source locations were chosen to model the greatest possible affected areas; typically, these locations will be at the riverward end of the super flood basin. The calculated distances do not take the land masses into consideration, but the ensonified areas do. Neither consider the reduction that will be achieved by the required use of a bubble curtain and therefore all take estimates are considered conservative. Refer to Figures 6-1 through 6-20 of the Navy's application for visual representations of the calculated maximum distances corresponding to the underwater marine mammal harassment zones from impulsive (impact pile driving, rock hammering, DTH) and non-impulsive (vibratory pile driving, rotary drilling) noise and the corresponding area of the harassment zone within the ROI.
Calculated distances to Level A harassment and Level B harassment thresholds are large, especially for DTH and rock hammering activities. However, in most cases the full distance of sound propagation will not be reached due to the presence of land masses and anthropogenic structures that will prevent the noise from reaching nearly the full extent of the harassment isopleths. Refer to Figure 1-3 in the Navy's application for the ROI, which illustrates that the land masses preclude the sound from traveling more than approximately 870 m (3,000 ft) from the source, at most. Areas encompassed within the threshold (harassment zones) were calculated by using a Geographical Information System (GIS) to clip the maximum calculated distances to the extent of the ROI (see Figure 2).
When two noise sources have overlapping sound fields, there is potential for higher sound levels than for non-overlapping sources because the isopleth of one sound source encompasses the sound source of another isopleth. In such instances, the sources are considered additive and combined using the rules of decibel addition, presented in Table 9 below (NMFS, 2021d; WSDOT, 2020).
For simultaneous usage of three or more continuous sound sources, the three overlapping sources with the highest SLs are identified. Of the three highest SLs, the lower two are combined using the above rules, then the combination of the lower two is combined with the highest of the three. For example, with overlapping isopleths from 24-, 36-, and 42-inch diameter steel pipe piles with sound source levels of 161, 167, and 168 dB RMS respectively, the 24- and 36-inch would be added together; given that 167-161 = 6 dB, then 1 dB is added to the highest of the two sound source levels (167 dB), for a combined noise level of 168 dB. Next, the newly calculated 168 dB is added to the 42-inch steel pile with sound source levels of 168 dB. Since 168−168 = 0 dB, 3 dB is added to the highest value, or 171 dB in total for the combination of 24-, 36-, and 42-inch steel pipe piles (NMFS, 2021d). By using this method, revised proxy SPLs were determined for the use of two 102-inch diameter rotary drills and the use of two 108-inch rotary drills and one 9-inch DTH mono-hammer. The revised proxy values are presented in Table 10 and the resulting harassment zones are summarized in Table 11 (visually depicted in Figures 6-21 and 6-22 in the Navy's application).
In this section we provide information about the occurrence of marine mammals, including density or other relevant information, that inform the take calculations. We also describe how the information provided above is synthesized to produce a quantitative estimate of the take that is reasonably likely to occur.
Potential exposures to impact and vibratory pile driving, rotary drilling, DTH, and rock hammering noise for each acoustic threshold were estimated using marine mammal density estimates (N) from the Navy Marine Species Density Database (NMSDD; Navy, 2017) or from monitoring reports from the Berth 11 Waterfront Improvements and P-310 construction projects. Specifically, where monitoring data specific to the project area were available, they were used, and the NMSDD data were used when there were no monitoring data available. The take estimate was determined using the following equation: take estimate = N * days of activity * area of harassment. A 10 m shutdown zone designed to prevent animal interactions with equipment was subtracted from the Level A harassment zone, and the area of the Level A harassment zone was subtracted from the Level B harassment zone to avoid double counting of takes during these take calculations. Days of construction were conservatively based on relatively slow daily production rates. The pile type, size, and installation method that produce the largest zone of influence were used to estimate exposure of marine mammals to noise impacts. In instances where an activity will ensonify the entire ROI to the Level A harassment threshold, all potential takes are assumed to be by Level A harassment.
Because some construction activities will occur over more than 1 construction year, the number of takes per year were determined by the percent duration of each construction activity occurring each year (calculated by months). For example, if an activity were to occur for 6 months, with 3 months occurring in year 2 and 3 months occurring in year 3, then 50 percent of the takes were assigned to year 2 and 50 percent to year 3. In instances where only one take was calculated but activities spanned more than 1 construction year, one take was authorized for each construction year. Table 12 summarizes the calculated duration percentages for each activity that were used to divide take numbers by year.
We describe how the information provided above is brought together to produce a quantitative take estimate in the species sections below. A summary of authorized take is available in Table 16.
Harbor porpoises are expected to be present in the project area from April to December. Based on density data from the NMSDD, their presence is highest in spring, decreases in summer, and slightly increases in fall. During construction monitoring in the project area, there were three harbor porpoise observations between April and December of 2017; two harbor porpoise observations in early August of 2018; and one harbor porpoise observation in 2020 (Cianbro, 2018; Navy, 2019; NAVFAC, 2021). There were no harbor porpoise observations in the project area in 2021 (NAVFAC, 2022). Given that monitoring data specific to the project area are available, the more general NMSDD data were not used to determine species density in the project area. Instead, the Navy used observation data from the 2017 and 2018 construction monitoring for the Berth 11 Waterfront Improvements Project and determined that the density of harbor porpoise for the largest harassment zone was equal to 0.04/km
Although no construction activity is currently planned for the final year of the LOA period (construction year 6), potential schedule slips may occur as a result of equipment failure, inclement weather, or other unforeseen events. However, potential takes that could occur during year 6 as a result of delays to activities scheduled for years 2-5 are accounted for through the analyses for those years, and no additional take is authorized.
Harbor seals may be present year-round in the project vicinity, with consistent densities throughout the year. Harbor seals are the most common pinniped in the Piscataqua River near the Shipyard. Sightings of this species were recorded during monthly surveys conducted in 2017 and 2018 (NAVFAC Mid-Atlantic, 2018, 2019b) as well as during Berth 11 and P-310 construction monitoring in 2017, 2018, 2020 and 2021 (Cianbro, 2018; Navy, 2019; NAVFAC, 2021, 2022), and therefore density estimates from these efforts were considered in the analysis. Based on observations recorded during the Berth 11 Waterfront Improvements (199 observations of harbor seals during year 1 and 249 observations of harbor seals during year 2 [448 total] over 322 days) and P-310 project construction monitoring (721 observations of harbor seals during year 1 and 451 observations of harbor seals during year 2 [1,172 total] over 349 days), harbor seal density was estimated to be 3.0/km
Takes by Level A harassment were calculated for harbor seals where the density of animals (3 harbor seals/km
Additional takes by Level B harassment may occur during the simultaneous use of two rotary drills and a DTH mono-hammer in construction years 3 and 4 and the simultaneous use of two rotary drills in construction year 4. The simultaneous use of 2 rotary drills will result in 28 additional takes by Level B harassment of harbor seals. The simultaneous use of 2 rotary drills and a DTH mono-hammer will result in 22 additional takes by Level B harassment of harbor seals. Note, the use of cluster drills and rock hammers in construction years 2 and 3 result in the entire ROI being ensonified to Level A harassment thresholds; therefore, there will be no change to the size of the harassment zones from concurrent construction activities during these years and thus no need to authorize additional takes. To account for concurrent activities in construction years 3 and 4, the Navy requested to add additional takes by Level B harassment to the estimated take numbers (22 harbor seal in construction year 3 and 50 harbor seal in construction year 4). Therefore the Navy requests and NMFS authorizes 1,047 takes by Level B harassment for harbor seals in construction year 2, 1,069 takes by Level B harassment for harbor seals in construction year 3, 1,097 takes by Level B harassment for harbor seals in construction year 4, and 1,047 takes by Level B takes for harbor seals in construction year 5 (note the division of takes over the construction years is summarized in Table 12).
Take by Level A harassment of harbor seals is shown in Table 14 below. Note that where the Level A harassment zone is as large as the Level B harassment zone and fills the entire potentially ensonified area, the enumerated takes in the Level A harassment column may be in the form of Level A harassment and/or Level B harassment, but are authorized as takes by Level A harassment. The authorized takes by Level B harassment are not included in Table 14 as they were calculated by a different method (
Although no construction activity is currently planned for the final year of the LOA period (construction year 6), potential schedule slips may occur as a result of equipment failure, inclement weather, or other unforeseen events. However, potential takes that could occur during year 6 as a result of delays to activities scheduled for years 2-5 are accounted for through the analyses for those years, and no additional take is authorized.
Gray seals may be present year-round in the project vicinity, with consistent densities throughout the year. Gray seals are less common in the Piscataqua River than the harbor seal. A total of nine sightings of gray seals were recorded during P-310 construction monitoring (NAVFAC, 2021, 2022). Density estimates of gray seals were based on the Berth 11 Waterfront Improvements (24 observations of gray seals during year 1 and 12 observations of gray seals during year 2 [36 total] over 322 days) and P-310 project construction monitoring (47 observations of gray seals during year 1 and 21 observations of gray seals during year 2 [68 total] over 349 days) and was estimated to be 0.2/km
Takes by Level A harassment were calculated for gray seals where the density of animals (0.2 gray seals/km
Additional takes by Level B harassment may occur during the simultaneous use of two rotary drills and a DTH mono-hammer in construction years 3 and 4 and the simultaneous use of two rotary drills in construction year 4. The simultaneous use of two rotary drills will result in two additional Level B takes of gray seals. The simultaneous use of two rotary drills and a DTH mono-hammer will result in one additional Level B take of
Take by Level A harassment of gray seals is shown in Table 15 below. Note that where the Level A harassment zone is as large as the Level B harassment zone and fills the entire potentially ensonified area, the enumerated takes in the Level A harassment column may be in the form of Level A harassment and/or Level B harassment, but will be authorized as takes by Level A harassment. The authorized takes by Level B harassment are not included in Table 15 as they were calculated by a different method (
Although no construction activity is currently planned for the final year of the LOA period (construction year 6), potential schedule slips may occur as a result of equipment failure, inclement weather, or other unforeseen events. However, potential takes that could occur during year 6 as a result of delays to activities scheduled for years 2-5 are accounted for through the analyses for those years, and no additional take is authorized.
Hooded seals may be present in the project vicinity from January through May, though their exact seasonal densities are unknown. In general, hooded seals are much rarer than the harbor seal and gray seal in the Piscataqua River. NMFS authorized one take by Level B harassment per month from January to May of a hooded seal for the Berth 11 Waterfront Improvements Construction project (NMFS, 2018b) and for P-310 (Super Flood Basin) (NMFS, 2016; NMFS, 2019; NMFS, 2021c). To date, the monitoring for those projects and for the density surveys have not recorded a sighting of hooded seal in the project area (Cianbro, 2018; NAVFAC Mid-Atlantic, 2018, 2019b; Navy 2019; NAVFAC, 2021, 2022). In order to guard against the potential for unauthorized take, the Navy again requested one take by Level B harassment of hooded seal per month (between the months of January and May) for each construction year. Therefore NMFS authorizes five takes by Level B harassment per year. Given the size of the shutdown zones in relation to the Level A harassment isopleths (see the Mitigation section below), NMFS also authorizes five takes by Level A harassment per year to safeguard against unauthorized take of hooded seals that may occur unnoticed in the Level A harassment zone for sufficient duration to incur PTS.
In general, harp seals are much rarer than the harbor seal and gray seal in the Piscataqua River. Harp seals were not observed during marine mammal monitoring or survey events that took place in 2017, 2018, or 2021 (Cianbro, 2018; NAVFAC Mid-Atlantic, 2018, 2019b; Navy, 2019; NAVFAC, 2021, 2022); however, two harp seals (n=2) were observed in the River in 2020 (Stantec, 2020), and another harp seal was observed in 2016 (NAVFAC Mid-Atlantic, 2016; NMFS, 2016). As above for hooded seals, NMFS is authorizing one take by Level B harassment of harp seal per month of construction (between the months of January and May) for each construction year as was authorized by NMFS for the Berth 11 Waterfront Improvements Project (NMFS, 2018b) and for P-310 (Super Flood Basin) construction activities (NMFS, 2019, 2021a). Harp seals may occur in the area from January through May. Anticipating one Level B harassment harp seal take per month for 5 months per year during in-water construction will guard against potential unauthorized take of this species. Given the size of the shutdown zones in relation to the Level A harassment isopleths (see the Mitigation section below), NMFS also authorizes five takes by Level A harassment per year to safeguard against unauthorized take of harp seals that may occur unnoticed in the Level A harassment zone for sufficient duration to incur PTS.
Table 16 below summarizes the authorized take for all the species described above as a percentage of stock abundance.
In order to issue an LOA under section 101(a)(5)(A) 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, NMFS considers 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, impact on operations.
The following mitigation measures apply to the Navy's in-water construction activities.
In-water construction activities must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone. If such circumstances recur, the Navy will consult with NMFS concerning the potential need for an additional take authorization.
The Navy shall conduct briefings between construction supervisors and crews, the marine mammal monitoring team, and Navy staff prior to the start of in-water construction activities and when new personnel join the work, to ensure that responsibilities, communication procedures, marine mammal monitoring protocols, and operational procedures are clearly understood.
The Navy shall use soft start techniques when impact pile driving. The objective of a soft start is to provide a warning and/or give animals in close proximity to pile-driving a chance to leave the area prior to an impact driver operating at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. Soft start requires contractors to provide an initial set of strikes from the impact hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. Note the number of strikes will vary at reduced energy because raising the hammer at less than full power and then releasing it results in the hammer “bouncing” as it strikes the pile, resulting in multiple “strikes.” A soft start will be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer. Soft start is not applicable to other in-water construction activities.
During construction of the multifunctional expansion of Dry Dock 1, portions of the west closure wall and/or the super flood basin caisson gate may not be in place. A bubble curtain
• The bubble curtain must distribute air bubbles across 100 percent of the entrance openings for the full depth of the water column;
• The lowest bubble ring must be in contact with the substrate for the full extent of the curtain, and the weights attached to the bottom of the curtain must ensure 100 percent substrate contact. No parts of the curtain or other objects shall prevent full substrate contact; and
• Air flow to the bubblers must be balanced around the entrance openings to the superflood basin.
During all in-water construction activities, in order to prevent injury from physical interaction with construction equipment, a shutdown zone of 10 m (33 ft) will be implemented. If a marine mammal comes within 10 m (33 ft) of such activity, operations shall cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions. If human safety is at risk, the in-water activity will be allowed to continue until it is safe to stop.
The Navy shall establish shutdown zones for all in-water construction activities. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones will vary based on the activity type and marine mammal hearing group (Table 17). The shutdown zone distances for rock hammering, impact pile-driving of sheet piles, and DTH excavation (200 m (656 ft) for harbor porpoise and 50 m (164 ft) for seals) are consistent with those implemented for the same activities for P-381 year 1 construction activities (NMFS, 2022a; 87 FR 19886, April 6, 2022). NMFS has determined that these shutdown zones represent the largest area that can practicably be monitored.
The Navy must delay or shutdown in-water construction activities should a marine mammal approach or enter the appropriate shutdown zone. The Navy may resume activities after one of the following conditions have been met: (1) the animal is observed exiting the shutdown zone; (2) the animal is thought to have exited the shutdown zone based on a determination of its course, speed, and movement relative to the pile driving location; or (3) the shutdown zone has been clear from any additional sightings for 15 minutes.
The Navy shall employ at least three protected species observers (PSOs) to monitor marine mammal presence in the action area during all in-water construction activities. Additional PSOs may be added if warranted by site conditions (rough seas, rain) and the level of marine mammal activity. All PSOs will be approved by NMFS and the Navy prior to starting work as a PSO. PSOs must track marine mammals observed anywhere within their visual range relative to in-water construction activities, and estimate the amount of time a marine mammal spends within the Level A or Level B harassment zones while construction activities are underway.
Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity (
The placement of PSOs during all pile driving and drilling activities (described in the Monitoring and Reporting section) must ensure that the entire shutdown zone and Level A harassment zone is visible during pile driving and drilling. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone or Level A harassment zone will not be visible (
If an in-water construction activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone indicated in Table 17 or 15 minutes have passed without re-detection of the animal. If in-water construction activities cease for more than 30 minutes, the pre-activity monitoring of the shutdown zone must commence.
Based on our evaluation of the applicant's planned measures, NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an LOA for an activity, section 101(a)(5)(A) 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 while conducting the activities. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Under the MMPA implementing regulations, 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.
The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of the start of the construction covered by this rule. The plan will incorporate all monitoring and mitigation measures and reporting requirements of the incidental take regulations.
The Navy shall conduct monitoring to include the entire ROI, which includes the area within the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB RMS threshold for impact driving and hydraulic rock hammering, and the 120 dB RMS threshold during vibratory pile driving, rotary drilling, and DTH) (see Table 7 and 8). These monitoring zones provide utility for monitoring conducted for mitigation purposes (
PSOs shall be responsible for monitoring the shutdown zones, the monitoring zones and the pre-clearance zones, as well as effectively documenting takes by Level A and B harassment. As described in more detail in the Marine Mammal Monitoring Reporting section below, they shall also (1) document the frequency at which marine mammals are present in the project area, (2) document behavior and group composition, (3) record all construction activities, and (4) document observed reactions (changes in behavior or movement) of marine mammals during each sighting. The PSOs shall monitor for marine mammals during all in-water construction activities associated with the project. The Navy shall monitor the project area to the extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. Visual monitoring shall be conducted by three PSOs. It is assumed that three PSOs shall be located on boats, docks, or piers sufficient to monitor the respective ROIs given the abundance of suitable vantage points (see Figure 11-1 of the Navy's application). The PSOs must record all observations of marine mammals, regardless of distance from the in-water construction activity.
Monitoring of in-water construction activities shall be conducted by qualified, PSOs. The Navy shall adhere to the following conditions when selecting PSOs:
PSOs must be independent (
At least one PSO must have prior experience performing the duties of a PSO during construction activities pursuant to a NMFS-issued incidental take authorization;
Other PSOs may substitute other relevant experience, education (degree in biological science or related field), or training;
Where a team of three PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
PSOs must be approved by NMFS prior to beginning any activity subject to this rule.
The Navy will ensure that the PSOs have the following additional qualifications:
Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;
Experience and ability to conduct field observations and collect data according to assigned protocols;
Experience or training in the field identification of marine mammals, including the identification of behaviors;
Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.
The Navy shall conduct a sound source verification (SSV) study effort to measure SPLs from in-water construction activities not previously monitored as part of P-310 or as part of P-381 year 1 construction. The Navy will collect and evaluate acoustic sound record levels for the rock excavation (rotary drilling or DTH excavation) activities conducted up to a maximum limit of 10 piles/holes. One hydrophone will be placed at locations 10 m (33 ft) from the noise source and a second hydrophone will be placed at a representative monitoring location at an intermediate distance between the cetacean and phocid shutdown zones. These locations will be adhered to as practicable given safety considerations and levels of activity in the basin. For the 10 rock excavation (rotary drilling or DTH excavation) events acoustically measured, 100 percent of the data will be analyzed.
At a minimum, the methodology includes:
For underwater recordings, a stationary hydrophone system with the ability to measure SPLs will be placed in accordance with NMFS' most recent guidance for the collection of source levels (NMFS, 2012).
Hydroacoustic monitoring will be conducted for each type of activity not previously monitored under P-310 or the P-381 year 1 IHA up to a maximum limit of 10 piles/holes (Table 18). Monitoring will occur from the same locations approved by NMFS for P-310 construction activities. The resulting data set will be analyzed to examine and confirm sound pressure levels and rates of TL for each separate in-water construction activity. With NMFS concurrence, these measurements may be used to recalculate the limits of shutdown and Level A and Level B harassment zones, as appropriate. Hydrophones will be placed in the same manner as for P-310 construction activities. Locations of hydroacoustic recordings will be collected via global positioning system. A depth sounder and/or weighted tape measure will be used to determine the depth of the water. The hydrophone will be attached to a-weighted nylon cord or chain to maintain a constant depth and distance from the pile/drill/hammer location. The nylon cord or chain will be attached to a float or tied to a static line.
Each hydrophone will be calibrated at the start of each action and will be checked frequently to the applicable standards of the hydrophone manufacturer.
For each monitored location, a single hydrophone will be suspended midway in the water column in order to evaluate site-specific attenuation and propagation characteristics that may be present throughout the water column.
Environmental data will be collected, including but not limited to, the following: wind speed and direction, air temperature, humidity, surface water temperature, water depth, wave height, weather conditions, and other factors that could contribute to influencing the airborne and underwater sound levels (
The chief inspector will supply the acoustics specialist with the substrate composition, hammer/drill model and size, hammer/drill energy settings, depth of drilling, and boring rates and any changes to those settings during the monitoring.
For acoustically monitored construction activities, data from the continuous monitoring locations will be post-processed to obtain the following sound measures:
○ Maximum peak sound pressure level recorded for all activities, expressed in dB re 1 μPa. This maximum value will originate from the phase of drilling/hammering during which drill/hammer energy was also at maximum (referred to as Level 4).
○ From all activities occurring during the Level 4 phase these additional measures will be made, as appropriate:
Mean, median, minimum, and maximum RMS sound pressure level in (dB re 1 μPa);
Mean duration of a pile strike (based on the 90 percent energy criterion);
Number of hammer strikes;
Mean, median, minimum, and maximum single strike SEL (dB re μPa
○ Median integration time used to calculate SPL RMS (for vibration
○ A frequency spectrum (power spectral density) (dB re μPa
○ Finally, the cumulative SEL will be computed from all the strikes associated with each pile occurring during all phases,
The Navy shall submit annual draft reports to NMFS for each construction year within 90 calendar days of the completion of marine mammal monitoring as well as a draft 5-year comprehensive summary report at the end of the project. The report(s) will detail the monitoring protocol and summarize the data recorded during monitoring. Annual reports will also include results from acoustic monitoring (see below). Final annual report(s) (each portion of the project and comprehensive) must be prepared and submitted to NMFS within 30 days following resolution of any NMFS comments on the draft reports. If no comments are received from NMFS within 30 days of receipt of the draft report, the report shall be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
A draft 5-year comprehensive summary report shall be submitted to NMFS 90 days after the expiration of the regulations. The draft report will synthesize the data recorded during hydroacoustic and marine mammal monitoring. NMFS will provide comments within 30 days after receiving this draft report, and the Navy will address the comments and submit revisions within 30 days of receipt. If no comment is received from NMFS within 30 days, the draft report will be considered as final.
All draft and final marine mammal monitoring reports must be submitted to
Dates and times (begin and end) of all marine mammal monitoring;
Construction activities occurring during each daily observation period, including:
○ How many and what type of piles/shafts were driven and by what method (
○ Total duration of driving time for each pile/hole (vibratory driving, rotary drilling) and number of strikes for each pile/hole (impact driving, hydraulic rock hammering); and
○ For DTH excavation, the duration of operation for both impulsive and non-pulse components, as well as the strike rate.
PSO locations during marine mammal monitoring;
Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
Upon observation of a marine mammal, the following information:
○ PSO who sighted the animal and PSO location and activity at time of sighting;
○ Time of sighting;
○ Identification of the animal (
○ Distance and bearing of each marine mammal observed relative to the in-water construction activity for each sighting (if the in-water construction was occurring at time of sighting);
○ Estimated number of animals (minimum/maximum/best);
○ Estimated number of animals by cohort (adults, juveniles, neonates, group composition,
○ Animal's closest point of approach and estimated time spent within each harassment zone; and
○ Description of any marine mammal behavioral observations (
Number of marine mammals detected within the harassment zones, by species;
Detailed information about implementation of any mitigation (
All PSO datasheets and/or raw sightings data.
The draft and final reports must also contain the informational elements described in the Hydroacoustic Monitoring Plan which, at minimum, must include:
Type and size of pile being driven, substrate type, method of driving during recordings (
Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
For impact pile driving and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level (SPLpeak), and single-strike sound exposure level (SELs-s);
For vibratory driving/removal and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged);
One-third octave band spectrum and power spectral density plot; and
General Daily Site Conditions;
○ Date and time of activities;
○ Water conditions (
○ Weather conditions (
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to NMFS Office of Protected Resources (OPR) (
Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
Species identification (if known) or description of the animal(s) involved;
Condition of the animal(s) (including carcass condition if the animal is dead);
Observed behaviors of the animal(s), if alive;
If available, photographs or video footage of the animal(s); and
General circumstances under which the animal was discovered.
If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS OPR is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of this rule. The Navy shall not resume their activities until notified by NMFS that they can continue.
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, this introductory discussion of our analysis applies to all the species listed in Table 3, given that many of the anticipated effects of this project on different marine mammal stocks are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below.
Construction activities associated with the project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A and Level B harassment from underwater sounds generated by pile driving activities, rotary drilling, rock hammering, and DTH. Potential takes could occur if marine mammals are present in zones ensonified above the thresholds for Level A and Level B harassment, identified above, while activities are underway.
The Navy's activities and associated impacts will occur within a limited, confined area of the stocks' range. Most of the work will occur behind the existing super flood basin walls that will act as a barrier to sound and will contain underwater noise to within a small portion of the Piscataqua River. The implementation of a soft start and a bubble curtain during some activities, along with other mitigation and monitoring measures already described, are expected to minimize the effects of the expected takes on the affected individuals. In addition, NMFS does not anticipate that serious injury or mortality will occur as a result of the Navy's construction activities given the nature of the activity, even in the absence of required mitigation.
Exposures to elevated sound levels produced during pile driving and drilling may cause behavioral disturbance of some individuals. Effects on individuals that are taken by Level B harassment, as enumerated in the Estimated Take section, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
Additionally, some of the species present in the region will only be present temporarily based on seasonal patterns or during transit between other habitats. These temporarily present species will be exposed to even smaller periods of noise-generating activity, further decreasing the impacts. Most likely, individual animals will simply move away from the sound source and be temporarily displaced from the area, although even this reaction has been observed primarily only in association with impact pile driving. The activities analyzed here are similar to numerous other construction activities conducted along both Atlantic and Pacific coasts, which have taken place with no known long-term adverse consequences from behavioral harassment. These reactions and behavioral changes are expected to subside quickly when the exposures cease. The intensity of Level B harassment events will be minimized through use of mitigation measures described herein, including the soft starts and the use of the bubble curtain, which was not quantitatively factored into the take estimates. The Navy will use at least three PSOs stationed strategically to increase detectability of marine mammals during in-water construction activities and removal, enabling a high rate of success in implementation of shutdowns to avoid or minimize injury for most species. Further, given the absence of any major rookeries and only one isolated pinniped haulout site at Hicks Rocks approximately 2.4 km (1.5 mi) from the project area, we assume that takes by Level B harassment will have a negligible short-term effect on individuals and will not result in population-level impacts.
Due to the levels and durations of likely exposure, animals that experience
The project is also not expected to have significant adverse effects on any marine mammal habitat. The project activities will not modify existing marine mammal habitat since the project will occur within the same footprint as existing marine infrastructure. Impacts to the immediate substrate are anticipated, but these will be limited to minor, temporary suspension of sediments, which could impact water quality and visibility for a short amount of time, but which will not be expected to have any effects on individual marine mammals. The nearshore and intertidal habitat where the project will occur is an area of consistent vessel traffic from Navy and non-Navy vessels, and some local individuals will likely be somewhat habituated to the level of activity in the area, further reducing the likelihood of more severe impacts. The closest pinniped haulout used by harbor and gray seals is Hicks Rocks, located approximately 2.4 km (1.5 mi) away on the opposite side of the island and not within the ensonified area. There are no other biologically important areas for marine mammals near the project area.
In addition, impacts to marine mammal prey species are expected to be minor and temporary. Overall, the area impacted by the project is very small compared to the available surrounding habitat, and does not include habitat of particular importance. The most likely impact to prey will be temporary behavioral avoidance of the immediate area. During construction activities, it is expected that some fish and marine mammals will temporarily leave the area of disturbance, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range. But, because of the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.
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 any of the species or stocks through effects on annual rates of recruitment or survival:
No serious injury or mortality is anticipated or authorized;
Level A harassment is expected to be of a lower degree that would not impact the fitness of any animals;
Anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior;
The required mitigation measures (
Minimal impacts to marine mammal habitat/prey are expected;
There is one pinniped haulout in the vicinity of the project area (Hicks Rocks), but it is on the opposite side of Seavey Island and not within the ensonified area; and
There are no known biologically important areas in the vicinity of the project.
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 from the Navy's activities will have a negligible impact on all affected marine mammal species or stocks.
As noted previously, 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 fewer 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.
The maximum annual amount of take NMFS has authorized is below one-third of the estimated stock abundance for all five species (see Table 16). The number of animals authorized to be taken from these stocks is considered small relative to the relevant stock's abundances even if each estimated take occurred to a new individual, which is an unlikely scenario.
Based on the analysis contained herein of the Navy's activities (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will 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 will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
The regulations governing the take of marine mammals incidental to Navy construction activities will contain an adaptive management component. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from completed projects to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications will have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental take authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the action qualifies to be categorically excluded from further review under NEPA.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16 U.S.C. 1531
No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that will be subject to the requirements in these regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
This rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a Federal agency.
The Assistant Administrator for Fisheries has determined that there is good cause under the Administrative Procedure Act (5 U.S.C 553(d)(3)) to waive the 30-day delay in the effective date of the measures contained in the final rule. The Navy is the only entity subject to these regulations, and it has informed NMFS that it requests that this final rule take effect by April 1, 2023, when the IHA previously issued by NMFS to govern the taking of marine mammals incidental to U.S. Navy construction of the multifunctional expansion of Dry Dock 1 at Portsmouth Naval Shipyard, Kittery, Maine (87 FR 19886, April 6, 2022) expires. Any delay in promulgating the final rule could result in a delay to the project schedule that would extend the completion of the project and cause further risks to the Navy Fleet boat schedule. In addition, in-water work at Dry Dock 1 is critical to timely completion of the overall project. Delaying the completion of ongoing work will have increased risk on other mission critical work, as some of the construction components cannot begin until others are started or in some cases completed. Moreover, the contractor is onsite and currently working under an existing IHA (87 FR 19886, April 6, 2022), therefore, the Navy is ready to operate under the LOA immediately. For these reasons, the Assistant Administrator finds good cause to waive the 30-day delay in the effective date. In addition, the rule allows authorization of incidental take of marine mammals that would otherwise be prohibited under the statute. Therefore, by granting an exception to the Navy, the rule will relieve restrictions under the MMPA, which provides a separate basis for waiving the 30-day effective date for the rule.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217 as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to taking of marine mammals by the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities that occur incidental to construction activities related to the multifunctional expansion and modification of Dry Dock 1 in the areas outlined in paragraph (b) of this section.
(b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at Portsmouth Naval Shipyard, Kittery, Maine.
Regulations in this subpart are effective for a period of 5 years from the date of issuance.
Under an LOA issued pursuant to § 216.106 of this chapter and § 217.136, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in
(a) Except for the takings contemplated in § 217.132 and authorized by a LOA issued under § 216.106 of this chapter and § 217.136, it is unlawful for any person to do any of the following in connection with the activities described in § 217.130:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.136;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified in such LOA in any manner other than as specified;
(4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(5) Take a marine mammal specified in such LOA after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
(b) [Reserved]
(a) When conducting the activities identified in § 217.130(a), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this chapter and § 217.136 must be implemented. These mitigation measures include:
(1) A copy of any issued LOA must be in the possession of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA at all times that activities subject to this LOA are being conducted.
(2) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (
(3) The Navy must ensure that construction supervisors and crews, the monitoring team, and relevant Navy staff are trained prior to the start of construction activity subject to this rule, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood. New personnel joining during the project will be trained prior to commencing work.
(4) The Navy, construction supervisors and crews, protected species observers (PSOs), and relevant Navy staff must avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 10 m of such activity, operations will cease and vessels will reduce speed to the minimum level required to maintain steerage and safe working conditions, as necessary, to avoid direct physical interaction.
(5) The Navy must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions as described in this rule and the NMFS-approved Marine Mammal Monitoring Plan.
(6) Monitoring must take place from 30 minutes prior to initiation of pile driving or drilling activity (
(7) For all pile driving and drilling activities, the Navy must implement shutdown zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136. If a marine mammal comes within or approaches the shutdown zone, such operations must cease.
(8) In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals must be allowed to remain in the shutdown zone (
(i) The animal has been observed exiting the shutdown zone;
(ii) The animal is thought to have exited the shutdown zone based on a determination of its course, speed, and movement relative to the pile driving location; or
(iii) The shutdown zone has been clear from any additional sightings for fifteen minutes.
(9) If pile driving or drilling construction activities cease for more than 30 minutes, the pre-activity monitoring of the shutdown zone must commence.
(10) The Navy must conduct monitoring to include the entire region of influence, which includes the area within the Level A and Level B harassment zones with radial distances as identified in a LOA issued under § 216.106 of this chapter and § 217.136.
(11) The Navy must use soft start techniques when impact pile driving. Soft start requires contractors to provide an initial set of strikes from the hammer at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start will be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer.
(12) The Navy must install a bubble curtain across the entrance openings during DTH cluster drill and hydraulic rock hammering activities. The bubble curtain must adhere to the following restrictions:
(i) The bubble curtain must distribute air bubbles across 100 percent of the entrance openings for the full depth of the water column;
(ii) The lowest bubble ring must be in contact with the substrate for the full extent of the curtain, and the weights attached to the bottom of the curtain must ensure 100 percent substrate contact. No parts of the curtain or other objects shall prevent full substrate contact; and
(iii) Air flow to the bubblers must be balanced across the entrance openings to the super flood basin.
(iv) The Navy shall require that construction contractors train personnel in the proper balancing of air flow to the bubblers and corrections to the attenuation device to meet the performance standards. This shall occur prior to the initiation of in-water construction activities.
(13) The bubble curtain may be discontinued for certain activities should the results of hydroacoustic recordings inside the bubble curtain show that the source levels from those activities do not result in the Level A harassment thresholds being achieved across the entire region of influence, upon review of the data by NMFS.
(14) Pile driving and drilling activity must be halted upon observation of either a species entering or within the harassment zone for which incidental take is not authorized, or a species for which incidental take has been authorized but the authorized number of takes has been met.
(b) [Reserved]
(a) Marine Mammal monitoring must be conducted in accordance with the conditions in this section and the Marine Mammal Monitoring Plan. The Navy must submit a Marine Mammal
(b) Monitoring must be conducted by qualified PSOs in accordance with the following conditions:
(1) PSOs must be independent (
(2) At least one PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(3) Other PSOs may substitute relevant experience, education (degree in biological science or related field), or training for prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(4) Where a team of three PSOs are required, a lead observer or monitoring coordinator shall be designated. The lead observer must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization; and
(5) One PSO must be designated as lead PSO or monitoring coordinator. The lead PSO must have prior experience performing the duties of a PSO during construction activity pursuant to a NMFS-issued incidental take authorization.
(6) PSOs must work in shifts to reduce fatigue and ensure their ability to monitor for marine mammals.
(7) PSOs must be approved by NMFS prior to beginning any activity subject to this LOA.
(c) For all pile driving activities, a minimum of three PSOs must be stationed on boats, docks, or piers sufficient to monitor the harassment and shutdown zones, and as described in the Marine Mammal Monitoring Plan.
(d) PSOs must record all observations of marine mammals, regardless of distance from the pile/hole being driven/drilled or the construction activity taking place (
(e) The Navy must conduct hydroacoustic data collection (sound source verification and propagation loss) as described in a LOA and in accordance with a hydroacoustic monitoring plan that must be approved by NMFS in advance of construction. This plan shall include acoustic monitoring inside the bubble curtain to measure construction generated noise levels.
(f) The harassment and/or shutdown zones may be modified with NMFS' approval following NMFS' acceptance of an acoustic monitoring report.
(g) The Navy must submit a draft monitoring report to NMFS within 90 work days of the completion of required monitoring for each portion of the project as well as a comprehensive summary report at the end of the project. The reports will detail the monitoring protocol and summarize the data recorded during monitoring. Final annual reports (each portion of the project and comprehensive) must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report must be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
(h) All draft and final monitoring reports must be submitted to
(i) The reports must at minimum contain the informational elements described as follows (as well as any additional information described in the Marine Mammal Monitoring Plan), including:
(1) Dates and times (begin and end) of all marine mammal monitoring.
(2) Construction activities occurring during each daily observation period, including:
(i) The number and type of piles that were driven or removed and by what method (
(ii) The total duration of driving time for each pile/hole (vibratory driving, rotary drilling) and number of strikes for each pile/hole (impact driving, hydraulic rock hammering).
(iii) For DTH, the duration of operation for both impulsive and non-pulse components as well as the strike rate.
(3) PSO locations during marine mammal monitoring.
(4) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance);
(5) Upon observation of a marine mammal, the following information:
(i) Name of PSO who sighted the animal(s) and PSO location, as well as the activity at the time of the sighting;
(ii) Time of sighting;
(iii) Identification of the animal (
(iv) Distances and bearings of each marine mammal observed in relation to the pile being driven or drilled for each sighting (if pile driving or drilling was occurring at time of sighting).
(v) Estimated number of animals (min/max/best estimate);
(vi) Estimated number of animals by cohort (adults, juveniles, neonates, group composition,
(vii) Animal's closest point of approach and estimated time spent within the harassment zone;
(viii) Description of any marine mammal behavioral observations (
(6) Number of marine mammals detected within the harassment zones, by species;
(7) Detailed information about any implementation of any mitigation (
(j) The Holder will submit all PSO datasheets and/or raw sightings data with the draft reports.
(k) The Navy must report the hydroacoustic data collected as required by a LOA issued under § 216.106 of this chapter and § 217.136 and as described in the Acoustic Monitoring Plan, which at a minimum, must include:
(1) Hydrophone equipment and methods: recording device, sampling rate, distance (m) from the pile where recordings were made; depth of water and recording device(s);
(2) Type and size of pile being driven, substrate type, method of driving during recordings (
(3) Whether a sound attenuation device is used and, if so, a detailed description of the device used and the duration of its use per pile;
(4) For impact pile driving and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Number of strikes and strike rate; depth of substrate to penetrate; pulse duration and mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms); cumulative sound exposure level (SELcum), peak sound pressure level
(5) For vibratory driving/removal, rotary drilling, and/or DTH excavation (DTH mono-hammer and cluster drill) (per pile/hole): Duration of driving per pile; mean, median, and maximum sound levels (dB re: 1 µPa): root mean square sound pressure level (SPLrms), cumulative sound exposure level (SELcum) (and timeframe over which the sound is averaged);
(6) One-third octave band spectrum and power spectral density plot; and
(7) General Daily Site Conditions, including the date and time of activities, and environmental data such as wind speed and direction, air temperature, humidity, surface water temperature, tidal state, water depth, wave height, weather conditions, and other factors that could contribute to influencing the airborne and underwater sound levels (
(l) In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the Navy must report incident to the Office of Protected Resources (OPR), NMFS
(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.
(a) To incidentally take marine mammals pursuant to this subpart, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and obtain a modification of the LOA as described in § 217.137.
(e) The LOA will set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the
(a) An LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations; and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) A LOA issued under § 216.106 of this chapter and § 217.136 for the activity identified in § 217.130(a) may be modified by NMFS under the following circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies; and
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to § 216.106 of this chapter and § 217.136, a LOA may be modified without prior public notice or opportunity for public comment. Notification would be published in the